Miller v. Onondaga County et al

Filing 11

ORDER and REPORT-RECOMMENDATION: IT IS ORDERED that Plaintiff's motion requesting various relief (Dkt. No. #10 ) is DENIED without prejudice; and it is further respectfully RECOMMENDED that the COURT DISMISS WITHOUT LEAVE TO AMEND Plaintiff's Amended Complaint (Dkt. No. 6) in its entirety pursuant to 28 U.S.C. 1915(e) (Objections to R&R due by 6/18/2024, Case Review Deadline 6/24/2024). Signed by Magistrate Judge Miroslav Lovric on 6/4/2024. (Copy served via regular mail upon Pro Se Plaintiff)(mmg).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
DAISHAWN-LAVON MILLER, doing
business as Daishawn Lavon Miller Living
Express Trust,
Plaintiff,
v.

5:24-CV-0701
(BKS/ML)

ONONDAGA COUNTY, et al.,
Defendants.
_____________________________________________
APPEARANCES:

OF COUNSEL:

DAISHAWN-LAVON MILLER
Plaintiff, Pro Se
2363 James Street # 547
Syracuse, New York 13206
MIROSLAV LOVRIC, United States Magistrate Judge
ORDER and REPORT-RECOMMENDATION
Plaintiff, who is proceeding pro se, paid the filing fees to commence this action. (Dkt.
No. 1.) For the reasons set forth below, I recommend that the Court dismiss the action as
frivolous.
I.

STANDARD OF REVIEW
The Court has the authority to dismiss a complaint, even when the plaintiff has paid the

filing fees, if it determines that the action is frivolous, Fitzgerald v. First E. Seventh Tenants
Corp., 221 F.3d 362, 363-64 (2d Cir. 2000) (per curiam) (citing Pillay v. INS, 45 F.3d 14, 16-17
(2d Cir. 1995) (per curiam) (holding that Court of Appeals has inherent authority to dismiss
frivolous appeal)), or if the Court lacks subject matter jurisdiction. Ruhrgas AG v. Marathon Oil

Co., 526 U.S. 574, 583 (1999). The Court is obliged, however, 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).
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 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).
Rule 8 of the Fed. R. Civ. P. requires a “short and plain statement” of a claim, showing
that “the pleader is entitled to relief.” Whitfield v. Johnson, 763 F. App'x 106, 107 (2d Cir. 2019)
(quoting Fed. R. Civ. P. 8(a)). Each statement must be “simple, concise, and direct,’ and must
give ‘fair notice of the claims asserted.” Whitfield, 763 F. App'x at 107 (quoting Simmons v.
Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995)). A pleading must also contain “a demand for the relief
sought[.]” Id. “A complaint may be dismissed under Rule 8 if it is ‘so confused, ambiguous, or
otherwise unintelligible that its true substance, if any, is well disguised.’” Id.
Moreover, Rule 10 of the Fed. R. Civ. P. provides that “[a] party must state its claims or
defenses in numbered paragraphs, each limited as far as practicable to a single set of
circumstances[.]” Fed. R. Civ. P. 10(b). Rule 10’s purpose is to “provide an easy mode of
identification for referring to a particular paragraph in a prior pleading[.]” Clervrain v. Robbins,

2

22-CV-1248, 2022 WL 17517312, at *2 (N.D.N.Y. Dec. 8, 2022) (Stewart, M.J.) (citation
omitted), report and recommendation adopted, 2023 WL 3170384 (N.D.N.Y. May 1, 2023)
(D'Agostino, J.). A complaint that does not comply with these Rules “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 [the plaintiff's] claims,” and may
properly be dismissed by the court. Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996)
(McAvoy, C.J.).
II.

BACKGROUND
Plaintiff Daishawn-Lavon Miller, who writes his name as “Daishawn Lavon Miller

Living Express Trust,” identifies himself as a “private citizen.” (Dkt. No. 10 at 1; see generally
Dkt. No. 1.)
Plaintiff commenced this action on May 15, 2024, by the filing of a Complaint. (Dkt.
No. 1.) On May 26, 2024, Plaintiff filed an unsigned Amended Complaint, which became the
operative pleading. (Dkt. No. 6.) Plaintiff’s Amended Complaint is 77-pages long of doublespaced unnumbered paragraphs, some of which, span several pages. (Id.)
Plaintiff’s action is not clear or well organized, but it appears that this action arises out of
a New York State Family Court action that Plaintiff was involved in.1 (See generally Dkt. No.
6.)

1

Plaintiff previously brought two actions against several of the Defendants in this action
regarding a New York State Family Court action; both actions in this District were dismissed.
Miller v. Primo, 23-CV-1051, 2023 WL 7545323 (N.D.N.Y. Nov. 14, 2023) (Sannes, C.J.)
(dismissing Plaintiff’s Complaint as frivolous) (“Miller II”); miller ex v. Primo, 22-CV-0680,
2022 WL 16551700 (Sannes, C.J.) (dismissing the Complaint for failure to state a claim upon
which relief may be granted and based on immunity) (“Miller I”).

3

III.

DISCUSSION
As it currently stands, Plaintiff's Amended Complaint wholly fails to provide fair notice

of the claims he attempts to assert. By way of example, the Amended Complaint states:
This is also my formal rebuttal-jus immunitatis of the office of parent as
the parent is the surety/obligor for the child-LEGAL ESTATE and I am
the Father who is responsible for the offspring altering the relationship as
it stands from a public relationship to a private one, my offspring is the
fruit of my seed see 2 Timothy 2:6 KJV and I am the first partaker in my
harvest-offspring. The overall goal of this lawsuit is to inform, rebut and
correct the record, and to recoup/be reimbursed for this inconvenience
causing generational damage, physical and mental, emotional stress, pain
and suffering and restore a private relationship via private agreement with
offspring.
(Dkt. No. 6 at 2.)
The Amended Complaint contains a series of run-on sentences containing legal jargon
and nonsensical allegations. By way of example, the Amended Complaint states:
The Family Court Act was created by charter not law which is why there
must be a perfect storm in order for a court to gain jurisdiction over a
private matter no different than before the State can have jurisdiction there
has to be a corpus delicti no injured party no jurisdiction. Therefore in
order for the court to have jurisdiction there must be elements of neglect,
abandonment, or abuse see NY Social Service Law 352/352A and none of
this is present in my case. The mere filing does not grant jurisdiction
because the way the prayer/petition is filled out and the status of the filer,
Due to the intent of the law which protects the people rights to privacy and
this is a matter of both privacy and equity/property in which the courts is
to protect these rights and enforce when there is no evidence of neglect,
abandonment, or abuse.
(Dkt. No. 6 at 26.)
Moreover, the Amended Complaint is replete with citations to the Bible and includes a
heading that reads “Relevant Bible Verses,” then lists approximately twenty verses. (Dkt. No. 6
at 17-18.)

4

Given its lack of clarity, the undersigned recommends dismissal of the Amended
Complaint because it is not acceptable under Rules 8 and 10 of the Fed. R. Civ. P. and because
Plaintiff's claim or claims against Defendants are entirely unclear.2
The Court also notes that Plaintiff’s assertions that he is not a “U.S. citizen” but a
“private citizen” and arguments that he is entitled to relief as a result have universally been
rejected as frivolous. See Miller Ex v. Primo, 22-CV-0680, 2022 WL 16556060, at *3-4

2

Moreover, Plaintiff’s claims may be subject to dismissal for the following three reasons.
First, to the extent that there are final state court orders or judgments that Plaintiff asks this Court
to overturn, those claims are likely barred by the Rooker-Feldman doctrine. Porter v. Nasci, 24CV-0033, 2024 WL 1142144, at *4 (N.D.N.Y. Mar. 15, 2024) (Dancks, M.J.) (citing Exxon
Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 291-92 (2005); Dorce v. City of New
York, 2 F.4th 82, 101 (2d Cir. 2021)) (“Under the Rooker-Feldman doctrine, a federal district
court lacks authority to review a final state court order or judgment where a litigant seeks relief
that invites the federal district court to reject or overturn such a final state court order or
judgment.”). Alternatively, “in the event the underlying family court proceedings are pending,
such claims are likely barred by the Younger abstention doctrine.” Walker v. O'Connor, 22-CV0581, 2022 WL 2341420, at *6 (N.D.N.Y. June 29, 2022) (Dancks, M.J.) (citing Younger v.
Harris, 401 U.S. 37 (1971); Amato v. McGinty, 21-CV-0860, 2022 WL 226798, at *11
(N.D.N.Y. Jan. 26, 2022) (Dancks, M.J.)), report and recommendation adopted, 2022 WL
2805462 (N.D.N.Y. July 18, 2022) (Hurd, J.). Second, Plaintiff’s claims are likely barred
pursuant to the domestic relations exception to the jurisdiction of federal courts. Dudley v.
Montaque, 24-CV-0223, 2024 WL 1464346, at *4 (N.D.N.Y. Apr. 4, 2024) (Dancks, M.J.)
(citing Marshall v. Marshall, 547 U.S. 293, 308 (2006); Oliver v. Punter, 22-CV-3580, 2022 WL
3228272, at *3 (E.D.N.Y. Aug. 10, 2022) (“The domestic relations exception to federal
jurisdiction divests the federal courts of power to issue divorce alimony and child custody
decrees . . . . This exception also extends to child support determinations and the enforcement
thereof.”) (internal quotations and citations omitted)) (“under the domestic relations exception to
the jurisdiction of federal courts, cases involving divorce, alimony, and child custody remain
outside this Court’s jurisdiction.”). Third, several Defendants are immune from suit, as set forth
more fully in the Report and Recommendations in Miller I and Miller II. For example,
Defendant Fifth Judicial District is a subset of the New York State Court system and is therefore
immune from damages pursuant to the Eleventh Amendment. Moreover, “claims under § 1983
against Defendants DeRue and Domachowski, who acted as support magistrate judges, are
barred under the doctrine of judicial immunity.” Miller v. Primo, 23-CV-1051, 2023 WL
6379325, at *6 (N.D.N.Y. Sept. 29, 2023) (Lovric, M.J.). Further, claims pursuant to § 1983 for
damages against Defendant Primo and other court employees like Defendants Doerr and Essi for
actions they took “integrally related to an on going judicial proceeding” are barred by the
doctrine of absolute immunity. Miller, 2023 WL 6379325, at *5.

5

(N.D.N.Y. Sept. 29, 2022) (recommending dismissal of Plaintiff’s claims predicated on a
“sovereign citizen” theory as having no basis in law). As the Second Circuit has explained,
“sovereign citizens are a loosely affiliated group who believe that the state and federal
governments lack constitutional legitimacy and therefore have no authority to regulate their
behavior.” United States v. Ulloa, 511 F. App'x 105, n.1 (2d Cir. 2013); see United States v.
McLaughlin, 949 F.3d 780, 781 (2d Cir. 2019) (cleaned up) (noting that “so-called ‘Sovereign
Citizens’ seek to clog the wheels of justice and delay proceedings so justice won't ultimately be
done. They do so by raising numerous—often frivolous—arguments, many alleging that the
Courts or the Constitution lack any authority whatsoever.”); Muhammad v. Smith, 13-CV-0760,
2014 WL 3670609, at *2 (N.D.N.Y. July 23, 2014) (D’Agostino, J.) (“Theories presented by
redemptionist and sovereign citizen adherents have not only been rejected by the courts, but also
recognized as frivolous and a waste of court resources.”) (collecting cases); see also BalashIoannidou v. Contour Mortg. Corp, 22-CV-4506, 2022 WL 3358082, at *1 (E.D.N.Y. Aug. 15,
2022) (rejecting claim that plaintiff “issued a payment through Notary Presentment to
Defendants in the amount of $645,300.00” to satisfy her debt, as well as a “Notary Protest” and a
“Certificate of Dishonor.”); Tyson v. Clifford, 18-CV-1600, 2018 WL 6727538, at *3 (D. Conn.
Dec. 21, 2018) (“Adherents of [redemptionist] claims or defenses ‘believe that they are not
subject to government authority and employ various tactics in an attempt to, among other things,
avoid paying taxes, extinguish debts, and derail criminal proceedings.’”); Steinkirchner v.
Gordon, 19-CV-1241, 2020 WL 549087, at *2 (W.D. Pa. Feb. 4, 2020) (“While the Court is not
in the business of issuing general advisory opinions, it can say with confidence that the Plaintiff's
one-sided effort to discharge her debts does not create a legal or factual basis for the claims she
struggles to assert.”); Stoute v. Navient, 19-CV-11362, 2019 WL 13234780, at *2 (D. Mass. July

6

2, 2019) (rejecting the plaintiff's claim that Navient could not pursue collection on alleged
student loan debt pursuant to U.C.C. § 3-505 because it failed to respond to his correspondence);
McKay v. U.S. Bank, 14-CV-0872, 2015 WL 5657110, at *2 (M.D. Ala. Sept. 24, 2015) (denying
plaintiffs' request for declaratory judgment that the defendant was not the real mortgage holder
and to quiet title based upon their mailing of a “notarial presentment” and a “notarial notice of
Dishonor” to the defendant bank).
Plaintiff has demonstrated a consistent pattern of making duplicative, voluminous, and
meritless filings, which serve to harass and/or raise frivolous issues. The undersigned hereby
warns Plaintiff that he cannot continue to engage in these filing practices. Taking into account
Plaintiff’s pro se status and his lack of legal training, the undersigned will not recommend the
issuance of a pre-filing injunction at this time. However, Plaintiff is strongly cautioned that any
further frivolous conduct on his part may result in the recommendation that a filing injunction be
issued against him.
IV.

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

7

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.).3
In this instance, I conclude that any further amendments to Plaintiff's Amended
Complaint would be futile. In this action, Plaintiff has already amended the complaint once as of
right pursuant to Fed. R. Civ. P. 15(a)(1). Moreover, Plaintiff brought two prior actions related
to the same underlying interaction or occurrences. See generally Miller I; Miller II. Plaintiff’s
claims and allegations are factually and legally frivolous. Any additional amendments to
Plaintiff’s Amended Complaint are not likely to be productive and will further clog the wheels of
justice. As a result, I recommend that Plaintiff's Amended Complaint be dismissed without leave
to amend. See Igarashi v. Skull & Bone, 438 F. App'x 58, 59-60 (2d Cir. 2011) (finding that the
district court “properly dismissed the complaint without providing an opportunity to amend
because any amendment would have been futile in light of the incredible nature of the
allegations.”); Official Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand,
LLP, 322 F.3d 147, 168 (2d Cir. 2003) (quoting Dluhos v. Floating & Abandoned Vessel, Known
as “New York,” 162 F.3d 63, 69 (2d Cir. 1998)) (finding that the “District Court did not abuse its
discretion in denying [the plaintiff] leave to amend the complaint because there was a ‘repeated

3

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.

8

failure to cure deficiencies by amendments previously allowed.’”); Salinger v. Projectavision,
Inc., 972 F. Supp. 222, 236 (S.D.N.Y. 1997) (“Three bites at the apple is enough.”).
V.

PLAINTIFF’S LETTER MOTION
In light of the recommended disposition of this case, Plaintiff's motion requesting various

relief (including an objection that his “personal cellular device” must be left with United States
Marshals upon entry to the federal courthouse) is denied without prejudice. (Dkt. No. 10); see
Amato v. McGinty, 17-CV-0593, 2017 WL 9487185, at *11 (N.D.N.Y. June 6, 2017) (Baxter,
M.J.) (“Because this court is recommending dismissal at this time, the court will deny
[P]laintiff's motion [seeking ancillary relief]. . . without prejudice.”), report and recommendation
adopted, 2017 WL 4083575 (N.D.N.Y. Sept. 15, 2017) (D'Agostino, J.); Mahmood v. United
States Gov't, 20-CV-0207, 2020 WL 3965125, at *3 (N.D.N.Y. Mar. 17, 2020) (Stewart, M.J.)
(same), report and recommendation adopted, 2020 WL 1808206 (N.D.N.Y. Apr. 9, 2020)
(D'Agostino, J.).
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion requesting various relief (Dkt. No. 10) is DENIED
without prejudice; and it is further respectfully
RECOMMENDED that the COURT DISMISS WITHOUT LEAVE TO AMEND
Plaintiff’s Amended Complaint (Dkt. No. 6) in its entirety pursuant to 28 U.S.C. § 1915(e); and
it is further
ORDERED that the Clerk of the Court shall file a copy of this Order and ReportRecommendation on Plaintiff, along with copies of the unpublished decisions cited herein in
accordance with the Second Circuit’s decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009)
(per curiam).

9

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.4 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: June __,
4 2024
Binghamton, New York

4

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).

10

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

© 2024 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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Pflaum v. Town of Stuyvesant, Columbia Cty., N.Y., Not Reported in Fed. Supp. (2016)

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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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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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

Clervrain v. Robbins, Not Reported in Fed. Supp. (2022)

2022 WL 17517312
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Manetirony CLERVRAIN, Plaintiff,
v.
Jonathan ROBBINS, et al., Defendants.
1:22-CV-1248 (MAD/DJS)
|
Signed December 8, 2022
Attorneys and Law Firms
MANETIRONY CLERVRAIN, Plaintiff, Pro Se, Anderson,
IN 46013.

REPORT-RECOMMENDATION and ORDER
DANIEL J. STEWART, United States Magistrate Judge
*1 The Clerk has forwarded for review what has been
docketed as a civil complaint filed by Plaintiff. Dkt. No. 1,
Compl. Plaintiff has not paid the filing fee but has submitted
an application to proceed in forma pauperis (“IFP”), Dkt. No.
2, which the Court has granted. 1

I. SUFFICIENCY OF THE COMPLAINT
A. Governing Legal Standard
28 U.S.C. § 1915(e) directs that, when a plaintiff seeks to
proceed in forma pauperis, “(2) ... the court shall dismiss
the case at any time if the court determines that – ... (B)
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)(B). 2 Thus, even if a plaintiff meets the
financial criteria to commence an action in forma pauperis, it
is the court's responsibility to determine whether the plaintiff
may properly maintain the complaint that he filed in this
District before the court may permit the plaintiff to proceed
with this action in forma pauperis. See id.

redress from a governmental entity or officer or employee of
a governmental entity” and must “identify cognizable claims
or dismiss the complaint, or any portion of the complaint,
if the complaint ... is frivolous, malicious, or 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. § 1915A; see also Carr v. Dvorin, 171 F.3d 115, 116
(2d Cir. 1999) (per curiam); Abbas v. Dixon, 480 F.3d 636,
639 (2d Cir. 2007) (stating that both sections 1915 and 1915A
are available to evaluate pro se prisoner complaints).
In reviewing a pro se complaint, the court has a duty to show
liberality toward pro se litigants, see Nance v. Kelly, 912 F.2d
605, 606 (2d Cir. 1990) (per curiam), and should exercise
“extreme caution ... in ordering sua sponte dismissal of a
pro se complaint before the adverse party has been served
and both parties (but particularly the plaintiff) have had an
opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37,
41 (2d Cir. 1983) (internal citations omitted). Therefore, a
court should not dismiss a complaint if the plaintiff has stated
“enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. at 556).
*2 Although a court should construe the factual allegations
in the light most favorable to the plaintiff, “the tenet that
a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions.” Id.
“Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id.
(citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555). “[W]here
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
alleged - but it has not show[n] - that the pleader is entitled
to relief.” Id. at 679 (quoting FED. R. CIV. P. 8(a)(2)).
Rule 8 of the Federal Rules of Civil Procedure “demands
more than an unadorned, the-defendant-unlawfully-harmedme accusation.” Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell
Atl. Corp. v. Twombly, 550 U.S. at 555). Thus, a pleading
that only “tenders naked assertions devoid of further factual
enhancement” will not suffice. Id. (internal quotation marks
and alterations omitted).

Likewise, under 28 U.S.C. § 1915A, a court must review
any “complaint in a civil action in which a prisoner seeks

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1

Clervrain v. Robbins, Not Reported in Fed. Supp. (2022)

B. Analysis of the Complaint
A court's initial review of a complaint under § 1915(e) must
encompass the applicable standards of the Federal Rules
of Civil Procedure. Rule 8 of the Federal Rules of Civil
Procedure provides that a pleading must contain:
(1) a short and plain statement of the grounds for the court's
jurisdiction ...;
(2) a short and plain statement of the claim showing that
the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief
in the alternative or different types of relief.
FED. R. CIV. P. 8(a). The purpose of Rule 8 “is to give
fair notice of the claim being asserted so as to permit the
adverse party the opportunity to file a responsive answer [and]
prepare an adequate defense.” Hudson v. Artuz, 1998 WL
832708, at *1 (S.D.N.Y. Nov. 30, 1998) (quoting Powell v.
Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995)).
Moreover, Rule 10 of the Federal Rules of Civil Procedure
provides, in part:

(b)
Paragraphs;
Separate
Statements. 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). The purpose of Rule 10 is to “provide
an easy mode of identification for referring to a particular
paragraph in a prior pleading[.]” Sandler v. Capanna, 1992
WL 392597, at *3 (E.D. Pa. Dec. 17, 1992).
A complaint that fails to comply with basic pleading
requirements presents too heavy a burden for defendants to
craft a defense “and provides no meaningful basis for the

Court to assess the sufficiency of [the plaintiff's] claims,” and
may properly be dismissed. Gonzales v. Wing, 167 F.R.D. 352,
355 (N.D.N.Y. 1996).
Plaintiff's Complaint clearly does not satisfy these
requirements. The nature of the Complaint is unclear. The
Complaint recites a wide variety of federal statutes and
case law, but a thorough review of the main Complaint and
the numerous attachments does not provide clarity as to
what federal claim Plaintiff seeks to pursue in this Court.
It is unclear what relationship the individuals identified by
Plaintiff as Defendants have to Plaintiff and how he alleges
they violated his rights.
Given its lack of clarity, the Complaint is clearly subject to
dismissal. “[A] court should not dismiss 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.’ ” Bruce v.
Tompkins Cty. Dep't of Soc. Servs. ex rel. Kephart, 2015 WL
151029, at *4 (N.D.N.Y. Jan. 7, 2015) (quoting Branum v.
Clark, 927 F.2d 698, 704-05 (2d Cir. 1991)). Accordingly, the
Court recommends that the Complaint be dismissed, but that
Plaintiff be afforded an opportunity to amend.
*3 The Court advises Plaintiff that should he be permitted
to amend his Complaint, any amended pleading she
submits must comply with Rules 8 and 10 of the Federal
Rules of Civil Procedure. Any such amended complaint,
which shall supersede and replace in its entirety the
previous Complaint filed by Plaintiff, must contain
sequentially numbered paragraphs containing only one
act of misconduct per paragraph. Thus, if Plaintiff claims
that his civil and/or constitutional rights were violated by
more than one defendant, or on more than one occasion,
he should include a corresponding number of paragraphs
in his amended complaint for each such allegation, with
each paragraph specifying (i) the alleged act of misconduct;
(ii) the date, including the year, on which such misconduct
occurred; (iii) the names of each and every individual who
participated in such misconduct; (iv) where appropriate, the
location where the alleged misconduct occurred; and, (v) the
nexus between such misconduct and Plaintiff's civil and/or
constitutional rights.
Plaintiff is further cautioned that no portion of his prior
Complaint shall be incorporated into his amended complaint
by reference. Any amended complaint submitted by Plaintiff
must set forth all of the claims he intends to assert against the

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2

Clervrain v. Robbins, Not Reported in Fed. Supp. (2022)

defendants and must demonstrate that a case or controversy
exists between the Plaintiff and the defendants which Plaintiff
has a legal right to pursue and over which this Court has
jurisdiction. If Plaintiff is alleging that the named defendant
violated a law, he should specifically refer to such law.

II. CONCLUSION
For the reasons stated herein, it is hereby
RECOMMENDED, that Plaintiff's Complaint
DISMISSED with leave to amend; and it is

be

ORDERED, that the Clerk of the Court serve a copy of this
Report-Recommendation and Order upon the parties to this
action.

Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen
(14) 3 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).
All Citations
Not Reported in Fed. Supp., 2022 WL 17517312

Footnotes
1

Plaintiff has also moved for leave to file electronically. Dkt. No. 3. Given the recommended disposition of
this case, that Motion is denied with leave to renew if Plaintiff files a complaint that survives review under
section 1915.

2

To determine whether an action is frivolous, a court must look to see whether the complaint “lacks an arguable
basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).

3

If you are proceeding pro se and are served with this Order by mail, three additional days will be added to
the fourteen-day period, meaning that you have seventeen days from the date the 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).

End of Document

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3

Clervrain v. Robbins, Not Reported in Fed. Supp. (2023)

2023 WL 3170384
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Manetirony CLERVRAIN, Plaintiff,
v.
Jonathan ROBBINS, Jean-Max Bellerive,
Josue Pierre-Louis, Garry Conille, Jean-Claude
Theogene, Barthelemy Anteno, Kwasi AmoakoAttah, and Victor (Ito) Bisono Haza, Defendants.
1:22-CV-1248 (MAD/DJS)
|
Signed May 1, 2023
Attorneys and Law Firms
MANETIRONY CLERVRAIN, 4326 South Scatterfield
Road, Suite 153, Anderson, Indiana 46013, Plaintiff, Pro Se.

ORDER
Mae A. D'Agostino, United States District Judge:
*1 On November 22, 2022, pro se Plaintiff Manetirony
Clervrain (“Plaintiff”) filed a complaint against Defendants
consisting of 70 pages of forms and documents, see Dkt. No.
1, “recit[ing] a wide variety of federal statutes and case law,”
Dkt. No. 7 at 5, and around two hundred pages of attachments.
See Dkt. Nos. 1-1, 1-5, 1-6. On the same day, Plaintiff moved
for leave to proceed in forma pauperis (“IFP”), see Dkt. No.
2, and to obtain an ECF login and password. See Dkt. No. 3.
On December 8, 2022, Magistrate Judge Daniel J. Stewart
granted Plaintiff's motion to proceed IFP. See Dkt.
No. 6. Additionally, Magistrate Judge Stewart issued a
Report-Recommendation and Order recommending that the
complaint be dismissed with leave to amend. See Dkt.
No. 7. Plaintiff has not filed an objection to the ReportRecommendation and Order.
When a party declines to file objections to a magistrate judge's
report-recommendation or files “[g]eneral or conclusory
objections or objections which merely recite the same
arguments [presented] to the magistrate judge,” the district
court reviews those recommendations for clear error. O'Diah
v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y.
Mar. 16, 2011) (citations and footnote omitted); see also

McAllan v. Von Essen, 517 F. Supp. 2d 672, 679 (S.D.N.Y.
2007). After the appropriate review, “the court may accept,
reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1).
“[I]n a pro se case, the court must view the submissions
by a more lenient standard than that accorded to ‘formal
pleadings drafted by lawyers.’ ” Govan v. Campbell, 289
F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (quoting Haines v.
Kerner, 404 U.S. 519, 520 (1972)) (other citations omitted).
The Second Circuit has held that the court is obligated to
“ ‘make reasonable allowances to protect pro se litigants’ ”
from inadvertently forfeiting legal rights merely because they
lack a legal education. Govan, 289 F. Supp. 2d at 295 (quoting
Taguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
Having reviewed the December 8, 2022 ReportRecommendation and Order, Plaintiff's complaint and the
applicable law, the Court finds that Magistrate Judge Stewart
correctly determined that the complaint should be dismissed.
The complaint is largely incomprehensible and suffers from
several deficiencies. Rule 8(a) of the Federal Rules of Civil
Procedure provides that a pleading must contain “a short
and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). Plaintiff's complaint
is neither short nor plain. See Dkt. No. 1. As currently
drafted, and even with the leniency given to a pro se litigant's
pleadings, Plaintiff failed to meet pleading standards such
that the Court is unable to meaningfully analyze whether
Plaintiff can allege any colorable claim against Defendants.
See Canning v. Hofmann, No. 1:15-CV-0493, 2015 WL
6690170, *5 (N.D.N.Y. Nov. 2, 2015) (“[H]aving found
that none of the allegations in Plaintiff's meandering and
indecipherable Complaint raise a cognizable cause of action,
the Court concludes that the Complaint fails to state a claim
upon which relief may be granted and is subject to dismissal”)
(citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
*2 Finally, the Court agrees with Magistrate Judge Stewart
that Plaintiff should be granted an opportunity to amend
out of deference to Plaintiff's pro se status. See Nielsen
v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (“ ‘Generally,
leave to amend should be freely given, and a pro se
litigant in particular should be afforded every reasonable
opportunity to demonstrate that he has a valid claim’ ”)
(quotation omitted). Should Plaintiff choose to amend the
complaint, the Court urges Plaintiff to review Magistrate

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1

Clervrain v. Robbins, Not Reported in Fed. Supp. (2023)

Judge Stewart's suggestions in the Report-Recommendation
and Order thoroughly. See Dkt. No. 7 at 4-6.
Accordingly, the Court hereby
ORDERS that the Report-Recommendation and Order (Dkt.
No. 7) is ADOPTED in its entirety; and the Court further
ORDERS that Plaintiff's complaint (Dkt. No. 1) is
DISMISSED with leave to amend; and the Court further
ORDERS that Plaintiff shall file his amended complaint
within thirty (30) days of the date of this Order; and the Court
further

End of Document

ORDERS that, if Plaintiff fails to file an amended complaint
within thirty (30) days of the date of this Order, the Clerk of
the Court shall enter judgment in Defendants’ favor and close
this case without further order from this Court; and the Court
further
ORDERS that the Clerk of the Court shall serve a copy of
this Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2023 WL 3170384

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2

Miller Ex v. Primo, Not Reported in Fed. Supp. (2022)

2022 WL 16556060
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Daishawn-Lavon MILLER EX, Plaintiff,
v.
David PRIMO, Chief Clerk; Karen J StanislausFung, Court Attorney Referee; Tylyn L Bozeman,
Attorney for mother; Robert Temple, Attorney for
the child; Salvatore Pavone, Court Attorney Referee;
and Tanerra CC Newton, mother, Defendants.
5:22-CV-0680 (BKS/ML)
|
Signed September 29, 2022
Attorneys and Law Firms
DAISHAWN-LAVON MILLER EX, Plaintiff, Pro Se, 2363
James Street, Number 547, Syracuse, New York 13206.

ORDER and REPORT-RECOMMENDATION
MIROSLAV LOVRIC, United States Magistrate Judge
*1 The Clerk has sent this pro se Complaint (Dkt. No. 1)
together with an application to proceed in forma pauperis
(Dkt. No. 3) filed by Daishawn-lavon Miller Ex (“Plaintiff”)
to the Court for review. For the reasons discussed below, I
grant Plaintiff's in forma pauperis application (Dkt. No. 3),
and I recommend that Plaintiff's Complaint (Dkt. No. 1) be
dismissed in its entirety without prejudice (a) in part with
leave to amend, and (b) in part without leave to amend.
I. BACKGROUND
Liberally construed, 1 Plaintiff's Complaint asserts that
his rights were violated by Defendants David Primo,
Karen Stanislaus, Tylyn Bozeman, Robert Temple, Salvatore
Pavone, Tanerra CC Newton (collectively “Defendants”),
who were all involved in Plaintiff's state court child custody
dispute. (See generally Dkt. No. 1.)
In total Plaintiff's Complaint and the ten attachments are 79pages long. (Id.) The vast majority of Plaintiff's Complaint
and attachments are nonsensical, rambling sentences, that
strongly suggest Plaintiff is proceeding in the present case
on the basis of his purported status as a sovereign citizen.

More specifically, Plaintiff alleges that his due process rights
were violated by Defendants when they failed to take notice
of his attempts to serve them with notice of his “status as the
executor, american national, age of [majority], secured party
creditor” and that Defendants enforced and applied a foreign
and unconstitutional form of law. (Id.) In addition, Plaintiff
alleges that Defendants violated his constitutional rights by
determining the custody of his child pursuant to the Family
Court Act, which is “derrived [sic] from the Social Security
Act which was never enacted into positive law.” (Dkt. No. 1
at 4.)
Plaintiff alleges that Defendant Primo, the Chief Court Clerk
of Onondaga County Family Court, was present during
Plaintiff's custody trial where he “watched” (1) Plaintiff
question the court's jurisdiction, and (2) Plaintiff's requests
to have his name correctly formatted be ignored. 2 (Id. at
6.) Plaintiff alleges that the court failed to take notice of
“NYS authenticated Power of Attorney and Birth Certificates
[Birth Certification is now Authenticated at Federal Level,
Bill of Complaint in Equity, Declaration of Nationality,
Notice of Restricted Special Appearance, invoices/injunction
[cease and desist order], Uniform Commercial Code Financial
Statements.” (Id.)
Plaintiff alleges that Defendant Temple, the attorney for the
child in Plaintiff's custody action, did not act in Plaintiff's
child's best interest, failed to “honor [Plaintiff's] injunction
(cease and desist order), failed to take notice of [Plaintiff's]
Bill of Complaint in Equity, NYS authenticated Power of
Attorney and Birth Certificate, Declaration of Nationality,
[and Defendant Temple wa]s also responsible for drafting the
order with the NAMES in all caps.” (Id.)
*2 Plaintiff alleges that Defendant Stanislaus-Fung, who
was the court attorney referee in his custody dispute, “failed
to take notice of [Plaintiff's] status,” “took joint legal custody
away from [Plaintiff] via the FAMILY COURT ACT,” failed
to recuse herself despite Plaintiff's requests, and did not act as
an impartial decision maker in the custody dispute. (Id.)
Plaintiff alleges that Defendant Bozeman, who represented
the mother of Plaintiff's child in the custody dispute, failed
to take notice of Plaintiff's “status.” (Id.) In addition, Plaintiff
alleges that Defendant Bozeman was served with invoices,
a private parenting agreement, and an injunction to cease
and desist but that she failed to properly respond to those
documents. (Id.)

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1

Miller Ex v. Primo, Not Reported in Fed. Supp. (2022)

Although Plaintiff's Complaint contains virtually no factual
detail, it appears to assert one claim that Defendants violated
his due process rights. 3 (See generally Dkt. No. 1.) Plaintiff
does not appear to be seeking any relief. (See generally Dkt.
No. 1.)
Plaintiff also filed an application to proceed in forma
pauperis. (Dkt. No. 3.)
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 $402, 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). 4 After reviewing Plaintiff's in
forma pauperis application (Dkt. No. 3), the Court finds that
Plaintiff meets this standard. Therefore, Plaintiff's application
to proceed in forma pauperis is granted. 5
III. LEGAL STANDARD FOR INITIAL REVIEW OF
COMPLAINT
*3 Although the court has a duty to show liberality toward
pro se litigants, and must use extreme caution in ordering
sua sponte dismissal of a pro se complaint before the adverse
party or parties have been served and have had an opportunity
to respond, the court still has a responsibility to determine
that a claim is not frivolous before permitting a plaintiff
to proceed. 28 U.S.C. § 1915(e); Nance v. Kelly, 912 F.2d
605, 606 (2d Cir. 1990) (per curiam); Anderson v. Coughlin,
700 F.2d 37, 41 (2d Cir. 1983); see, e.g., Fitzgerald v. First
East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir.
2000) (holding that a district court may sua sponte dismiss a
frivolous complaint, notwithstanding the fact that the plaintiff
paid the statutory filing fee). “Legal frivolity ... occurs where
‘the claim is based on an indisputably meritless legal theory
[such as] when either the claim lacks an arguable basis in
law, or a dispositive defense clearly exists on the face of
the complaint.” Aguilar v. United States, 99-MC-0304, 99MC-0408, 1999 WL 1067841, at *2 (D. Conn. Nov. 8, 1999)
(quoting Livingston v. Adirondack Beverage Co., 141 F.3d
434, 437 (2d Cir. 1998)); see also Neitzke v. Williams, 490
U.S. 319, 325 (1989) (“[D]ismissal is proper only if the legal
theory ... or factual contentions lack an arguable basis.”); Pino
v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (“[T]he decision that a
complaint is based on an indisputably meritless legal theory

for purposes of dismissal under section 1915(d), may be based
upon a defense that appears on the face of the complaint.”).
When reviewing a complaint under section 1915(e), the
court is guided by applicable requirements of the Federal
Rules of Civil Procedure. More specifically, Rule 8 of the
Federal Rules of Civil Procedure provides that a pleading
must contain, inter alia, “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). The requirement that a plaintiff “show” that
he or she is entitled to relief means that a complaint “must
contain sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.’ ” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (emphasis added) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Determining whether a complaint states a plausible claim for
relief ... requires the ... court to draw on its judicial experience
and common sense.... [W]here the well-pleaded facts do not
permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged–but it has not shown–
that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679
(internal citation and punctuation omitted). “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.
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 all causes of action be dismissed.
“Theories presented by redemptionist and sovereign citizen
adherents have not only been rejected by the courts, but
also recognized as frivolous and a waste of court resources.”
Muhammad v. Smith, 13-CV-0760, 2014 WL 3670609, at *2
(N.D.N.Y. July 23, 2014) (D'Agostino, J.); accord, Charlotte
v. Hansen, 433 F. App'x 660, 661 (10th Cir. 2011) (summary
order) (noting that “an individual's belief that her status
as a ‘sovereign citizen’ puts her beyond the jurisdiction of
the courts has no conceivable validity in American law”)
(internal quotation marks omitted); see also United States
v. Ulloa, 511 F. ‘105, 106 n.1 (2d Cir. 2013) (summary

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2

Miller Ex v. Primo, Not Reported in Fed. Supp. (2022)

order) (“The sovereign citizens are a loosely affiliated group
who believe that the state and federal governments lack
constitutional legitimacy and therefore have no authority to
regulate their behavior. The FBI has labeled the sovereign
citizens a domestic terrorist group.”); Monroe v. Beard, 536
F.3d 198, 203 n.4 (3rd Cir. 2008) (“[T]he ‘Redemptionist’
theory ... propounds that a person has a split personality:
a real person and a fictional person called the ‘strawman.’
The ‘strawman’ purportedly came into being when the United
States went off the gold standard ... and, instead, pledged
the strawman of its citizens as collateral for the country's
national debt. Redemptionists claim that government has
power only over the strawman and not over the live person,
who remains free. Individuals can free themselves by filing
UCC financing statements, thereby acquiring an interest in
their strawman.... Adherents of this scheme also advocate
that inmates copyright their names to justify filing liens
against officials using their names in public records such as
indictments or court papers.”); Branton v. Columbia Cnty.,
15-CV-0005, 2015 WL 3397949, at *2-4 (N.D.N.Y. May
26, 2015) (Hurd, J., adopting Report-Recommendation of
Dancks, M.J., dismissing plaintiff's complaint, which was “a
classic example of [the] ‘redemptionist’ or ‘sovereign citizen’
theory,” and denying leave to amend); Green v. Pryce, 15CV-3527, 2015 WL 4987893, at *3-4 (E.D.N.Y. Aug. 18,
2015) (dismissing plaintiff's complaint on initial review and
denying leave to amend, where the complaint was based
“on the ‘redemptionist’ theory,” included claims “pursuant to
federal criminal statutes that do not provide a private right of
action,” and “failed to set forth any facts to support” his §
1983 claim).
*4 Here, Plaintiff's Complaint (1) is comprised of repeated
references to his status as an “american national ... secured
party creditor,” (2) is virtually devoid of factual allegations
about the incident or incidents at issue (or any other event
based in fact), and (3) contains citations to statutes and
references to legal concepts that do not provide a private cause
of action. (Dkt. No. 1.) Accordingly, I conclude that Plaintiff's
Complaint–predicated as it is on a “sovereign citizen” theory
that is routinely held to have no basis in law–does not allege
facts plausibly suggesting any entitlement to relief.
In addition and in the alternative, I recommend that
Plaintiff's Complaint be dismissed because it seeks relief from
individuals who are immune from suit and for failure to state

“To state a valid claim under § 1983, the plaintiff must allege
that the challenged conduct (1) was attributable to a person
acting under color of state law, and (2) deprived the plaintiff
of a right, privilege, or immunity secured by the Constitution
or laws of the United States.” Whalen v. Cnty. of Fulton, 126
F.3d 400, 405 (2d Cir. 1997) (citing Eagleston v. Guido, 41
F.3d 865, 875-76 (2d Cir. 1994)). Thus, § 1983 does not create
any independent substantive right, but rather “provides a civil
claim for damages” to “redress ... the deprivation of [federal]
rights established elsewhere.” Thomas v. Roach, 165 F.3d 137,
142 (2d Cir. 1999).
A. Immunity
1. Defendant Primo
Courts have routinely granted judicial immunity to
“government officials, including clerks of court and other
court employees, for their acts that assist a judge in the
performance of his or her judicial duties.” Mendez v. Johnson,
22-CV-6811, 2022 WL 3587600, at *2 (S.D.N.Y. Aug. 22,
2022) (citing Cleavinger v. Saxner, 474 U.S. 193, 200 (1985);
Montero v. Travis, 171 F.3d 757, 760 (2d Cir. 1999); see
Ali v. Pollak, 182 F.3d 898 (2d Cir. 1999) (unpublished
opinion) (extending judicial immunity to a pro se law clerk);
Oliva v. Heller, 839 F.2d 37, 39-40 (2d Cir. 1988) (extending
judicial immunity to a judge's law clerk); Chmura v. Norton,
Hammersley, Lopez & Skokos Inverso PA, 17-CV-2164, 2018
WL 2138631, at *2 (D. Conn. May 9, 2018) (extending
judicial immunity to a clerk of court); Manko v. Ruchelsman,
12-CV-4100, 2012 WL 4034038, at *2 (E.D.N.Y. Sept. 10,
2012) (same); Gibson v. Brown, 12-CV-0622, 2012 WL
1744845, at *4-5 (E.D.N.Y. May 16, 2012) (extending judicial
immunity to a pro se writ clerk)).
*5 It appears as though Plaintiff's claim against Defendant
Primo arises from actions he took with respect to a case
before Defendant Stanislaus-Fung in the Onondaga County
Family Court. Plaintiff fails to allege any facts showing
that Defendant Primo acted beyond the scope of his
judicial responsibilities or outside of his jurisdiction. Because
Plaintiff sues Defendant Primo for “acts arising out of, or
related to, individual cases before” Defendant StanislausFung, he is immune from suit for such claims. Bliven v. Hunt,
579 F.3d 204, 210 (2d Cir. 2009).

a claim upon which relief may be granted. 6

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Miller Ex v. Primo, Not Reported in Fed. Supp. (2022)

2. Defendants Stanislaus-Fung and Pavone
“The law is clear that court referees are entitled to absolute
judicial immunity from liability with respect to acts taken in
the scope of their duties.” Khrapko v. Splain, 389 F. Supp.
3d 199, 205 (W.D.N.Y. 2019) (citing Green v. Kadilac Mortg.
Bankers, Ltd., 936 F. Supp. 108, 115 (S.D.N.Y. 1996); Weiss v.
Feigenbaum, 558 F. Supp. 265, 272 (E.D.N.Y. 1982)); accord
Witcher v. Moriber, 21-CV-6168, 2022 WL 1085297, at *2
(E.D.N.Y. Apr. 11, 2022) (citing Wilson v. Wilson-Polson,
446 F. App'x 330, 331 (2d Cir. 2011) (allegations that a New
York State Family Court referee violated plaintiff's procedural
due process rights failed in light of the referee's absolute
immunity to suit); Topolski v. Wrobleski, 13-CV-0872, 2014
WL 2215761, at *3 (N.D.N.Y. May 29, 2014) (“Judicial
immunity is so broad that judges and referees ‘are not liable
to civil actions for their judicial acts, even when such acts ...
are alleged to have been done maliciously or corruptly.’ ”);
Renner v. Stanton, 13-CV-1676, 2013 WL 1898389, at *3
(E.D.N.Y. May 7, 2013) (dismissing claims against Family
Court Referee based on judicial immunity)).
As a result, I recommend that Plaintiff's claim against
Defendants Stanislaus-Fung and Pavone be dismissed based
on the doctrine of absolute judicial immunity.

3. Defendant Temple
“Absolute immunity may attach to a non-judicial officer
where that individual serves as an ‘arm of the court,’ or acts
as an ‘integral part[ ] of the judicial process.’ ” Holland
v. Morgenstern, 12-CV-4870, 2013 WL 2237550, at *4
(E.D.N.Y. May 20, 2013) (quoting Scotto v. Almenas, 143
F.3d 105, 111 (2d Cir. 1998); Briscoe v. LaHue, 460 U.S.
325, 335 (1983)). “In New York, courts have regularly found
that attorneys for children in custody proceedings (called ‘law
guardians’ until 2010, N.Y. Fam. Ct. Act § 242) enjoy quasijudicial immunity.” Thomas v. Martin-Gibbons, 19-CV-7695,
2020 WL 5026884, at *7 (S.D.N.Y. Aug. 25, 2020) (citing Bey
v. New York, 11-CV-3296, 2012 WL 4370272, at *9 (E.D.N.Y.
Sept. 21, 2012)).
Plaintiff's allegations against Defendant Temple arise out of
his court-appointed representation of Plaintiff's child during
family court proceedings. As a result, I recommend that
Plaintiff's claim against Defendant Temple be dismissed
pursuant to the doctrine of quasi-judicial immunity. Thomas

v. Martin-Gibbs, 2020 WL 5026884, at *7 (citing Yapi v.
Kondratyeva, 340 F. App'x 683, 685 (2d Cir. 2009) (finding
that the Children's Law Center and its employees are entitled
to quasi-judicial immunity)) (dismissing the plaintiff's claims
against the Children's Law Center, which arose out of their
court-appointed representation of “J.O.” during family court
proceedings).
Based on the doctrine of judicial immunity, I recommend that
Plaintiff's claim against Defendants Primo, Stanislaus-Fung,
Pavone, and Temple be dismissed because the Court lacks
subject matter jurisdiction.
B. Failure to State a Claim Upon Which Relief May
Be Granted
1. Defendant Primo
*6 In the alternative, I recommend that Plaintiff's claim
against Defendant Primo be dismissed for failure to state a
claim upon which relief may be granted.
“To state a claim for liability under [S]ection 1983 against a
government official sued in his or her individual capacity, ‘a
plaintiff must plead that each Government-official defendant,
through the official's own individual actions, has violated the
Constitution.’ ” McCluskey v. Roberts, No. 20-4018, 2022
WL 2046079, at *3 (2d Cir. June 7, 2022) (summary order)
(quoting Tangreti v. Bachmann, 983 F.3d 609, 616 (2d Cir.
2020)). Failing to allege that a defendant was personally
involved in, or responsible for, the alleged constitutional
violation renders a complaint “fatally defective on its face.”
Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 886 (2d Cir. 1987)
(internal quotation marks omitted); see Dubois v. Beaury, No.
21-2096, 2022 WL 1701497, at *4 (2d Cir. May 27, 2022)
(stating that “personal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of
damages under [Section] 1983” (internal quotation marks
omitted)).
Here, Plaintiff alleges that Defendant Primo “allowed”
Plaintiff's rights to be violated “as he sat in on [Plaintiff's
custody] Trial and watched [Plaintiff] qu[ ]estion the court[’s]
jurisdiction, the format of the names in the custodial
order.” (Dkt. No. 1 at 6.) Plaintiff's allegation that Defendant
Primo was present while others allegedly violated his
rights, fails to plausibly suggest Defendant Primo's personal
involvement in the constitutional violation. See Roman v. City

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4

Miller Ex v. Primo, Not Reported in Fed. Supp. (2022)

of Mount Vernan, 21-CV-2214, 2022 WL 2819459, at *16
(S.D.N.Y. July 19, 2022) (quoting Arbuckle v. City of New
York, 14-CV-10248, 2016 WL 5793741, at *13 (S.D.N.Y.
Sept. 30, 2016)) (“ ‘Simply being present at the scene of an
arrest does not suffice for personal involvement.’ ”).

2. Defendant Pavone
In the alternative, I recommend that Plaintiff's claim
against Defendant Pavone be dismissed for failure to allege
Defendant Pavone's personal involvement in any violation of
Plaintiff's rights. The Complaint lists Defendant Pavone as a
defendant but fails to allege any action taken by Defendant
Pavone.

state law); DeRouseau v. Fam. Ct., Westchester Cnty., 21CV-8716, 2022 WL 1747859, at *3 (S.D.N.Y. May 31, 2022)
(dismissing the plaintiff's § 1983 claims against “attorneys
who were appointed to represent him and his child in the
Family Court.”); Cleveland v. Schenectady Cnty. Dep't of
Children and Families, 16-CV-1235, 2016 WL 8193590, at
*6 (N.D.N.Y. Dec. 30, 2016) (Stewart, M.J.) (“It is well
settled that conduct of private attorneys practicing in family
court proceedings, even where they are paid by the State, do
not rise to the level of State action.”).
*7 As a result, I recommend that Plaintiff's claim against
Defendants Temple and Bozeman be dismissed.

4. Defendant Newton
3. Defendants Bozeman and Temple
Plaintiff's claim pursuant to 42 U.S.C. § 1983 against
Defendants Bozeman and Temple is inadequately pled
because he failed to allege that they acted under color of state
law. 42 U.S.C. § 1983; Velez v. Levy, 401 F.3d 75, 84 (2d Cir.
2005).
“Although appointed by the state, an attorney for the children
or law guardian is not a state actor because he or she must
exercise independent professional judgment on behalf of the
clients they represent.” Parent v. New York, 786 F. Supp. 2d
516, 538 (N.D.N.Y. 2011) (Hurd, J.). Thus, I recommend that
Plaintiff's claim against Defendant Temple be dismissed for
failure to state a claim upon which relief may be granted.
Moreover, although it is not clear from the face of the
complaint whether Defendant Bozeman was appointed by
the court to represent Defendant Newton, or whether
Defendant Newton privately retained Defendant Bozeman,
the difference is inconsequential. “It is well-settled that
attorneys engaged in private practice do not act under color
of state law within the meaning of § 1983.” Parent, 786 F.
Supp. 2d at 538 (citing Polk Cnty. v. Dodson, 454 U.S. 312,
318 (1981)); accord Agron v. Douglas W. Dunham Esq. &
Assocs., 02-CV-10071, 2004 WL 691682, at *3 (S.D.N.Y.
Mar. 31, 2004); see Walker v. Rivera, 22-CV-0560, 2022
WL 2341544, at *3 (N.D.N.Y. June 29, 2022) (Dancks,
M.J.) (recommending dismissal of the plaintiff's Section 1983
claims against the defendant private attorney and defendant
attorney for the child because the plaintiff failed to allege
facts plausibly suggesting that they acted under color of

Plaintiff's Complaint fails to allege facts plausibly suggesting
that Defendant Newton—the mother of his child—was a state
actor. “[M]ere use, and even misuse, of state courts does
not turn private parties into state actors.” Koziol v. King,
14-CV-0946, 2015 WL 2453481, at *11 (N.D.N.Y. May 22,
2015) (Sharpe, C.J.) (citing Cramer v. Englert, 93 F. App'x
263, 264 (2d Cir. 2004) (“[T]he mere invocation of New York
legal procedures does not satisfy the state actor requirement
under § 1983.”); Dahlberg v. Becker, 748 F.2d 85, 89-90 (2d
Cir. 1984) (dismissing § 1983 action because allegations of
“misuse of a state statute” did not give rise to § 1983 action)).
Thus, Plaintiff has failed to allege facts plausibly suggesting
Defendant Newton was a state actor for purposes of liability
pursuant to 42 U.S.C. § 1983. Koziol, 2015 WL 2453481,
at *11-12 (dismissing the plaintiff's claims against his exwife based on the plaintiff's allegations that she “abuse[d]
joint custody rights” and filed “false claims” and “specious
petitions”).
As a result, I recommend that Plaintiff's claim against
Defendant Newton be dismissed for failure to state a claim
upon which relief may be granted. 7
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

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Miller Ex v. Primo, Not Reported in Fed. Supp. (2022)

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.). 8
*8 Here, better pleading could not cure the Court's lack of
subject matter jurisdiction based on the immunities described
above, which appear to apply to all claims except those
against Defendants Bozeman and Newton.
However, in light of Plaintiff's pro se status and out of
an abundance of caution, a better pleading—addressing
the deficiencies outlined above—could potentially save
Plaintiff's claim against Defendant Bozeman and Newton
from being sua sponte dismissed on initial review. As a
result, I recommend that Plaintiff's claim against Defendant
Bozeman and Newton be dismissed without prejudice and
with leave to amend.
If Plaintiff chooses to file an amended complaint, he
should note that the law in this circuit clearly provides
that “ ‘complaints 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.’
” Hunt v. Budd, 895 F. Supp. 35, 38 (N.D.N.Y. 1995)
(McAvoy, J.) (quoting Barr v. Abrams, 810 F.2d 358, 363
(2d Cir. 1987)); accord Pourzancvakil v. Humphry, 94CV-1594, 1995 WL 316935, at *7 (N.D.N.Y. May 22,
1995) (Pooler, J.). Therefore, 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
named defendant in the constitutional deprivations alleged in
sufficient detail to establish that it was 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 IFP application (Dkt. No. 3) is
GRANTED; and it is further respectfully
RECOMMENDED that Plaintiff's Complaint (Dkt. No. 1)
be sua sponte dismissed in its entirety pursuant to 28 U.S.C.
§ 1915(e); and it is further respectfully
RECOMMENDED that the Court DISMISS WITHOUT
PREJUDICE AND WITH LEAVE TO AMEND Plaintiff's
Complaint (Dkt. No. 1) against Defendants Bozeman and
Newton, for failure to state a claim upon which relief may
be granted pursuant to 28 U.S.C. § 1915(e)(2)(B); and it is
further respectfully
RECOMMENDED that the Court DISMISS WITHOUT
PREJUDICE AND WITHOUT LEAVE TO AMEND
Plaintiff's Complaint (Dkt. No. 1) against Defendants Primo,
Stanislaus-Fung, Temple, and Pavone, because it seeks relief
from defendants who are immune from suit pursuant to 28
U.S.C. § 1915(e)(2)(B); and it is further
ORDERED that the Clerk of the Court shall file a copy of this
Order and Report-Recommendation on Plaintiff, along with
copies of the unpublished decisions cited herein in accordance
with the Second Circuit's decision in Lebron v. Sanders, 557
F.3d 76 (2d Cir. 2009) (per curiam).
*9 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. 9 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)).
All Citations
Not Reported in Fed. Supp., 2022 WL 16556060

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Miller Ex v. Primo, Not Reported in Fed. Supp. (2022)

Footnotes
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

Although unclear from the content of the Complaint, it appears that Plaintiff prefers his name be written in
entirely lowercase letters but that the caption in the state court proceedings listed the parties’ names in all
capital letters.

3

Plaintiff's Complaint also contains an extensive list with several legal terms that do not appear to have any
meaning in context. (Dkt. No. 1 at 7.) More specifically, under the paragraph in the form complaint asking
what relief Plaintiff seeks, states:
see invoices attached, Abuse of Power, Abuse of Process, Appearance in Court, Breach of Contract/
Oath/ Charter, Breach of Duty, Capitis Diminutio Maxima, Check and Balance Violation, Conspiracy/
Collusion, Deceit*, Discrimination/ Vexatious Litigation, Duty of Care Violation, Embezzlement/ Extortion,
Entrapment*, Factual Causation*, Fair Hearing Request/ Violation, Fraud Upon the Court, Fraudulent
Conveyance/Conversion, Fruit of The Poisonous Tree, Gross Negligence, Malicious Wrongdoing,
Mental Anguish, Mis-Application of Statute, Mis-Information/False Evidence, Misappropriation of Funds,
Misrepresentation, Mistrial, Natural Law Violation, Obstruction of Justice, Psychological Warfare, R.I.C.O.
(Illegal Activities Per Person), Serving in Multiple Capacities, Speedy Trial Violation, Tax Fraud, The Use of
Policies to Override The Law, Treason, Trespassing, Undisclosed Policies/Usury, Unholy Alliance, United
States Bill of Rights Violation, Unjust Enrichment, Unlawful Taking, Use of injurious or Damaging Laws,
Using Public Funds For Private Interests
(Dkt. No. 1 at 7.)

4

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).

5

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.

6

Due to the nature of Plaintiff's Complaint, it is difficult to precisely determine exactly which doctrine applies, but
his claims are also likely barred. “The Second Circuit has recently stated that the Rooker-Feldman doctrine
bars a district court from reviewing a family court's determinations regarding custody, neglect and visitation
where those issues have been decided after providing the plaintiff a full and fair opportunity to litigate those
issues.” Arena v. Dep't of Soc. Servs. of Nassau Cnty., 216 F. Supp. 2d 146, 152 (E.D.N.Y. 2002) (citing
Phifer v. City of New York, 289 F.3d 49, 57 (2d Cir. 2002)). “Under the domestic relations exception to the
jurisdiction of federal courts, cases involving divorce, alimony, and child custody remain outside federal court
jurisdiction.” Amato v. McGinty, 21-CV-0860, 2022 WL 226798, at *10 (N.D.N.Y. Jan. 26, 2022) (Dancks,
M.J.) (citing Marshall v. Marshall, 547 U.S. 293, 308 (2006)). In the event that Plaintiff's underlying custody
state court proceeding remains pending, his request for this Court's involvement may also implicate the
Younger abstention doctrine. Younger v. Harris, 401 U.S. 37 (1971). Under the Younger doctrine, “federal
courts [must] abstain from taking jurisdiction over federal constitutional claims that involve or call into question
ongoing state proceedings.” Diamond “D” Constr. Corp. v. McGowan, 282 F.3d 191, 198 (2d Cir. 2002).
7
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Miller Ex v. Primo, Not Reported in Fed. Supp. (2022)

7

In the alternative, I recommend that Plaintiff's claim against Defendant Newton be dismissed for failure to
allege Defendant Newton's personal involvement in any violation of Plaintiff's rights. Again, Plaintiff listed
Defendant Newton as a defendant in this case but failed to allege any action taken by Defendant Newton
in the body of the Complaint.

8

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.

9

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).

End of Document

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8

Muhammad v. Smith, Not Reported in F.Supp.3d (2014)

2014 WL 3670609
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Jamil Abdul MUHAMMAD, Plaintiff,
v.
Judge Martin E. SMITH; Jason White, Assistant
District Attorney; Broome County Courts, 6th
District; American Bar Association; United States
of America; and State of New York, Defendants.
No. 3:13–cv–760 (MAD/DEP).
|
Signed July 23, 2014.
Attorneys and Law Firms
Jamil Abdul Muhammad, Albion, NY, pro se.

MEMORANDUM–DECISION AND ORDER
MAE A. D'AGOSTINO, District Judge.
I. INTRODUCTION
*1 Plaintiff, who is currently a New York State prisoner
but was not at the time this action was filed, commenced
this civil rights action asserting claims against a sitting
judge, an assistant district attorney, a county court, and the
American Bar Association. See Dkt. No. 1. In an October
16, 2013 Report, Recommendation, and Order, Magistrate
Judge Peebles conducted an initial review of the complaint
and recommended that the complaint be dismissed, with leave
to replead only as to any claims asserted against Defendant
American Bar Association. See Dkt. No. 19.
Currently before the Court is Magistrate Judge Peebles'
Report, Recommendation, and Order and Plaintiff's
objections thereto.

II. BACKGROUND
Plaintiff's complaint and his many subsequent filings are
largely unintelligible. In his complaint, Plaintiff identifies
himself as a “Moor/Sovereign/a Freeman On The Land/ a

Man, Real Live Flesh and Blood [.]” Dkt. No. 1 at 3. Plaintiff
claims that, through his “unalienated rights under UCC 1–
207(308),” he is “entitled to any Interpleted Funds relative
to JAMIL ABDUL MUHAMMAD, and the defendant is
determined to be Barred from any collection of my alleged
debt from JAMIL ABDUL MUHAMMAD relating to Jamil
Abdul Muhammad and defendant had in no ‘CLAIM IN
FACT.’ “ Id. at 5.
From other submissions submitted by Plaintiff, it appears
that Plaintiff was sentenced by Broome County Court Judge
Martin E. Smith, a named Defendant, based upon a plea of
guilty entered in that court. See Dkt. No. 7 at 2. Plaintiff
appears to allege that, as a result of those proceedings, Judge
Smith is guilty of kidnapping, and is liable for conspiracy
to violate his civil rights in violation of 18 U.S.C. § 241.
See id. Further, Plaintiff makes vague references to a clerk in
Binghamton named “Karen,” and claims that she and other
Defendants have placed him in imminent harm. See Dkt. No.
21 at 4–5. Plaintiff asks the Court to award him “the dismissal
of said charges” and to release him “by implying said ‘habeas
corpus' granting [him] immediate release of confinement[.]”
Id. at 5.
In a Report, Recommendation, and Order, Magistrate Judge
Peebles granted Plaintiff's motion to proceed in forma
pauperis and then conducted an initial review of the
complaint. See Dkt. No. 19. Magistrate Judge Peebles noted
that Plaintiff's complaint failed to meet the minimal pleading
standards set forth in Rule 8 of the Federal Rules of Civil
Procedure, as well as Twombly and its progeny. See id. at 7. In
light of his pro se status, however, Magistrate Judge Peebles
considered Plaintiff's subsequent filings to determine if he has
set forth a plausible claim against any named Defendant. See
id. at 8.
Magistrate Judge Peebles first found that Defendants Smith
and White are entitled to absolute immunity because
Plaintiff's claims against them are associated with his
prosecution in Broome County. See id. at 8–9. Further,
the report found that Plaintiff's claims brought pursuant
to 18 U.S.C. § 241 should be dismissed because it is a
criminal statute that does not give rise to a private cause of
action. See id. at 9 n. 6 (citations omitted). Next, Magistrate
Judge Peebles concluded that Plaintiff's claims against the
Broome County Courts must be dismissed because they are an
extension of the state, immune from suit under the Eleventh
Amendment. See id. at 10. Thereafter, Magistrate Judge
Peebles found that the Court should dismiss Plaintiff's claims

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1

Muhammad v. Smith, Not Reported in F.Supp.3d (2014)

against Defendant American Bar Association (“ABA”)
because Plaintiff failed to allege any facts to plausibly suggest
that Defendant ABA is a state actor, or that it acted under color
of state law when allegedly violating Plaintiff's rights. See
id. at 10–11. Finally, Magistrate Judge Peebles recommended
that the Court dismiss all claims with prejudice, except those
asserted against Defendant ABA. See id. at 12–13.
*2 Currently before the Court are Magistrate Judge
Peebles Report, Recommendation, and Order, and Plaintiff's
objections thereto. Additionally pending before the Court
are several letter motions, along with an amended
complaint Plaintiff filed after the issuance of the Report,
Recommendation, and Order.

are encouraged to file liens against
correctional officers and other prison
officials in order to extort their release
from prison. Adherents of this scheme
also advocate that inmates copyright
their names to justify filing liens
against officials using their names in
public records such as indictments or
court papers.

Id. (citation omitted). 1
Plaintiff also apparently adheres to the Redemptionist theory
regarding the use of capital letters:

III. DISCUSSION
A. Redemptionist and sovereign citizen theories
Plaintiff's assertions appear to be based, at least in part, on
the “redemptionist” theory or the related “sovereign citizen”
theory, which are frivolous legal theories that have been
consistently rejected by federal courts. See Monroe v. Beard,
536 F.3d 198, 203 n. 4 (3d Cir.2008). The United States Court
of Appeals for the Third Circuit explained:

“Redemptionist” theory ... propounds
that a person has a split personality:
a real person and a fictional
person called the “strawman.” The
“strawman” purportedly came into
being when the United States went
off the gold standard in 19[3]3, and,
instead, pledged the strawman of its
citizens as collateral for the country's
national debt. Redemptionists claim
that government has power only
over the strawman and not over
the live person, who remains free.
Individuals can free themselves by
filing UCC financing statements,
thereby acquiring an interest in their
strawman. Thereafter, the real person
can demand that government officials
pay enormous sums of money to use
the strawman's name or, in the case
of prisoners, to keep him in custody.
If government officials refuse, inmates

Redemptionists claim that by a birth
certificate, the government created
strawmen out of its citizens. A person's
name spelled in English, that is with
initial capital letters and small letters,
represents the real person, that is,
the flesh and blood person. Whenever
a person's name is written in total
capitals, however, as it is on a birth
certificate, the Redemptionists believe
that only the strawman is referenced,
and the flesh and blood person is not
involved.

McLaughlin v. CitiMortqage, Inc., 726 F.Supp.2d 201, 210
(D.Conn.2010) (internal quotation marks omitted); see also
Bryant v. Wash. Mut. Bank, 524 F.Supp.2d 753, 758–61
(W.D.Va.2007).
Theories presented by redemptionist and sovereign citizen
adherents have not only been rejected by the courts, but
also recognized as frivolous and a waste of court resources.
See McLaughlin v, 726 F.Supp.2d at 210 (providing detailed
explanation of the redemptionist theory and rejecting it);
Charlotte v. Hanson, 433 Fed. Appx. 660, 661 (10th
Cir.2011) (rejecting the sovereign citizen theory as having no
conceivable validity in American law) (citation omitted). A
prisoner's attempt “to avoid the consequences of his criminal
conviction” based on the redemptionist theory, has been
recognized as “legally frivolous,” Ferguson—El v. Virginia,

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Muhammad v. Smith, Not Reported in F.Supp.3d (2014)

No. 3:10CV577, 2011 WL 3652327, *3 (E.D.Va. Aug.18,
2011), and civil cases based on redemptionist and sovereign
citizen theories have been found to be “utterly frivolous” and
“patently ludicrous,” using “tactics” that are “a waste of their
time as well as the court's time, which is paid for by hardearned tax dollars.” Barber v. Countrywide Home Loans, Inc.,
No. 2:09cv40, 2010 WL 398915, *4 (W.D.N.C. Oct.7, 2009).
*3 In short, Plaintiff seeks to avoid the consequences of
his conviction by suggesting he exists as two separate legal
entities and that the State of New York and Broome County
do not have jurisdiction over both entities and thus must
release him and pay him damages. Such a theory is legally
frivolous. See Tirado v. New Jersey, No. 10–3408(JAP),
2011 WL 1256624, *4–5 (D.N.J. Mar.28, 2011) (observing a
similar argument “has absolutely no legal basis”); Marshall v.
Fla. Dep't Corr., No. 10–CV–20101, 2010 WL 6394565, *1
(S.D.Fla. Oct.27, 2010). Although the Court finds that these
theories are frivolous, in light of his pro se status, the Court
will consider each possible claim in greater detail.
B. The Report, Recommendation, and Order
Section 1915(e) (2)(B) directs that, when a plaintiff seeks to
proceed in forma pauperis, “(2) ... the court shall dismiss
the case at any time if the court determines that—... (B) 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)(B). 2 Thus, although the Court has the
duty to show liberality toward pro se litigants, see Nance
v. Kelly, 912 F.2d 605, 606 (2d Cir.1990) (per curiam), and
should exercise “extreme caution ... in ordering sua sponte
dismissal of a pro se complaint before the adverse party has
been served and both parties (but particularly the plaintiff)
have had an opportunity to respond, ...” Anderson v. Coughlin,
700 F.2d 37, 41 (2d Cir.1983) (internal citations omitted), the
court also has a responsibility to determine that a claim is
not frivolous before permitting a plaintiff to proceed with an
action in forma pauperis . 3
When reviewing a complaint, the court may also look to the
Federal Rules of Civil Procedure. Rule 8 of the Federal Rules
of Civil Procedure provides that a pleading that sets forth
a claim for relief shall contain “a short and plain statement
of the claim showing that the pleader is entitled to relief.”
See Fed.R.Civ.P. 8(a)(2). The purpose of Rule 8 “ ‘is to give
fair notice of the 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. Hudson v. Artuz, No.
95 CIV. 4768, 1998 WL 832708, *1 (S.D.N.Y. Nov.30, 1998)
(quoting Powell v. Marine Midland Bank, 162 F.R.D. 15, 16
(N.D.N.Y.1995) (quoting Brown v. Califano, 75 F.R.D. 497,
498 (D.D.C.1977))) (other citation omitted).
A court should not dismiss a complaint if the plaintiff has
stated “enough facts to state a claim to relief that is plausible
on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570,
127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868
(2009) (citation omitted). Although the court should construe
the factual allegations in the light most favorable to the
plaintiff, “the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions.” Id. “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements,
do not suffice.” Id. (citing Twombly, 550 U.S. at 555). Thus,
“where the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint
has alleged—but it has not ‘show [n]’—‘that the pleader is
entitled to relief.’ “ Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).
*4 When a party files specific objections to a magistrate
judge's report-recommendation, the district court makes a
“de novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1) (2006). When a
party, however, files “[g]eneral or conclusory objections or
objections which merely recite the same arguments [that he
presented] to the magistrate judge,” the court reviews those
recommendations for clear error. O'Diah v. Mawhir, No. 9:08–
CV–322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16, 2011)
(citations and footnote omitted). After the appropriate review,
“the court may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1) (2006).
A litigant's failure to file objections to a magistrate judge's
report-recommendation, even when that litigant is proceeding
pro se, waives any challenge to the report on appeal. See
Cephas v. Nash, 328 F.3d 98, 107 (2d Cir.2003) (holding that,
“[a]s a rule, a party's failure to object to any purported error or
omission in a magistrate judge's report waives further judicial
review of the point” (citation omitted)). A pro se litigant must

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3

Muhammad v. Smith, Not Reported in F.Supp.3d (2014)

be given notice of this rule; notice is sufficient if it informs
the litigant that the failure to timely object will result in the
waiver of further judicial review and cites pertinent statutory
and civil rules authority. See Frank v. Johnson, 968 F.2d 298,
299 (2d Cir.1992); Small v. Sec ‘y of Health & Human Servs.,
892 F.2d 15, 16 (2d Cir.1989) (holding that a pro se party's
failure to object to a report and recommendation does not
waive his right to appellate review unless the report explicitly
states that failure to object will preclude appellate review and
specifically cites 28 U.S.C. § 636(b)(1) and Rules 72, 6(a) and
former 6(e) of the Federal Rules of Civil Procedure).
Having reviewed the Report, Recommendation, and Order
and Plaintiff's objections thereto, the Court finds that
Magistrate Judge Peebles correctly determined that Plaintiff's
claims should be dismissed. As explained below, however,
the Court rejects Magistrate Judge Peebles' recommendation
insofar as it found that Plaintiff should be permitted a chance
to amend his complaint as to Defendant ABA.
Section 1983 itself does not create any substantive rights;
rather, it provides a procedural mechanism for redressing
the deprivation of rights created by the Constitution or laws
of the United States. See Sykes v. James, 13 F.3d 515, 519
(2d Cir.1993) (citing City of Oklahoma City v. Tuttle, 471
U.S. 808, 816, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985)). To
state a cognizable claim under Section 1983, a plaintiff must
allege that “ ‘(1) the challenged conduct was attributable
at least in part to a person who was acting under color of
state law and (2) the conduct deprived the plaintiff of a right
guaranteed under the Constitution of the United States.’ “
Weiss v. Inc. Village of Sag Harbor, 762 F.Supp.2d 560, 568
(E.D.N.Y.2011) (quoting Snider v. Dylag, 188 F.3d 51, 53 (2d
Cir.1999)).
*5 The Supreme Court, in Lugar v. Edmondson Oil Co.,
Inc., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482
(1982), established a two-prong test for determining when
a private party's actions can be deemed to satisfy Section
1983's requirement that the challenged conduct was “under
color of state law.” Actions of a private party can be deemed
“fairly attributable” to the state, and therefore treated as action
taken “under color of state law,” when (1) the deprivation
is “caused by the exercise of some right or privilege created
by the State or by a rule of conduct imposed by the State
or by a person for whom the State is responsible,” and (2)
“the party charged with the deprivation [is] a person who may
fairly be said to be a state actor .” Hollander v. Copacabana
Nightclub, 624 F.3d 30, 33 (2d Cir.2010) (quoting Lugar, 457

U.S. at 937). A private party's actions may be attributable
to the state under the second Lugar prong if it meets one of
three tests: (1) “The ‘compulsion test’: the entity acts pursuant
to the ‘coercive power’ of the state or is ‘controlled’ by the
state”; (2) “The ‘public function test’: the entity ‘has been
delegated a public function by the [s]tate’ “; or (3) “The ‘joint
action test’ or ‘close nexus test’: the state provides ‘significant
encouragement’ to the entity, the entity is a ‘willful participant
in joint activity with the [s]tate,’ or the entity's functions are
‘entwined’ with state policies.” Hollander, 624 F.3d at 34
(quoting Sybalski v. Indep. Grp. Home Living Program, Inc.,
546 F.3d 255, 257 (2d Cir.2008) (internal citations omitted)).
In the present matter, Defendant ABA is a private party which
does not meet any of the three tests set forth above. Courts
throughout the United States have already addressed this
question and they have unanimously held that the American
Bar Association is not a state actor for purposes of a Section
1983 action. See Hu v. American Bar Ass'n, 334 Fed. Appx.
17, 18–19 (7th Cir.2009) (finding that the district court
properly dismissed the plaintiff's complaint because the ABA
is not a state actor); Lawline v. American Bar Ass ‘n, 956
F.2d 1378, 1385 (7th Cir.1992) (concluding that “private bar
associations are not state actors for the purpose of Section
1983”); Rohan v. American Bar Ass'n, No. 93 CV 1338, 1995
WL 347035, *6–*7 (E.D.N.Y. May 31, 1995) (holding that
the ABA is a professional association, not a state actor, even
though admission to practice law in New York State requires
graduation from an ABA-accredited law school, because “the
State of New York has not explicitly delegated to the ABA its
responsibility for setting the requirements that an individual
must meet in order to be licensed as an attorney-at-law” and
“any conferral of monopoly status on the ABA by New York
State does not convert the ABA into a state actor”); see also
The Real Estate Bar Ass'n for Mass., Inc. v. Nat'l Real Estate
Info. Servs., 608 F.3d 110, 121–22 (1st Cir.2010) (finding that
state bar association was not a state actor).
*6 In the present matter, the Court agrees that Defendant
ABA is not a state actor for Section 1983 purposes. New York
has not expressly delegated to the ABA its responsibility for
setting the requirements to practice law in New York; rather,
to become a member of the New York Bar, an individual must
comply with the Rules of the New York Court of Appeals on
admission to practice. See Rohan, 1995 WL 347035, at *5.
Further, the ABA was neither established by the State of New
York, nor is it funded or supported by the State. See id. at
*7 (citations omitted). Additionally, school accreditation has
been recognized as a function of private entities, rather than

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Muhammad v. Smith, Not Reported in F.Supp.3d (2014)

one that “has been traditionally the exclusive prerogative of
the State.” Id. (quotation and other citation omitted).
Based on the foregoing, the Court finds that Defendant ABA
is not a state actor. As such, the Court rejects Magistrate
Judge Peebles' recommendation only insofar as the report
recommended that the Court dismiss the claims against
Defendant ABA without prejudice. Although the Court
should generally permit a pro se litigant an opportunity to
amend, dismissal with prejudice is appropriate where, as here,
any amendment of the complaint would be futile.
Further, the Court finds that Magistrate Judge Peebles
correctly determined that Defendants Smith and White are
entitled to absolute immunity since Plaintiff has raised
claims against them in their capacities as a judge and
prosecutor. See Hill v. City of New York, 45 F.3d 653, 660–
61 (2d Cir.1995) (quotation omitted); DuQuin v. Kolbert,
320 F.Supp.2d 39, 40–41 (W.D.N.Y.2004) (citation omitted).
Additionally, Plaintiff's claims against the Broome County
Courts are barred by the Eleventh Amendment. See Thomas
v. Bailey, No. 10–cv–51, 2010 WL 662416, *1 (E.D.N.Y.
Feb.22, 2010). Finally, to the extent that Plaintiff is seeking
his immediate release from custody, such relief is only
available from this Court by way of a writ of habeas corpus,
issued pursuant to 28 U.S.C. § 2254. See Preiser v. Rodriguez,
411 U.S. 475, 498–99, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1975);
see also Brown v. Freeport Police Dept., Nos. 13 CV 4047,
13 CV 6514, 2014 WL 279847, *5 (E.D.N.Y. Jan.23, 2014)
(citation omitted).
C. Plaintiff's amended complaint
In his amended complaint, Plaintiff names as Defendants the
“United States of America/Foreign Corporation of United
States,” and the State of New York, as well as the previously
named Defendants. See Dkt. No. 34 at 1–2. In the amended
complaint, Plaintiff claims that the “United States of America
is guilty of criminal infringement of intellectual property,
failure of consideration, act of indemnity, insurance fraud,
securities fraud,” as well as an apparent violation of section
34 of the Judiciary Act 4 and a conspiracy with the other
named Defendants in violation of 18 U.S.C. § 241. See id. at
4. Plaintiff claims that Defendants' actions were “in violation
of misnomer contracts of surety” and led to his “wrongfull
[sic] imprisonment via commercial claims alleging DEATH
and DEBT.” Id. Plaintiff is seeking his immediate release,
in addition to $150,0000,000 “upon court ordered ‘Release’
from cestui que vie life insurance policy and foreign

corporation of United States.” Id. at 6. Additionally, Plaintiff
asks the Court to “expunge all criminal proceedings, charges,
finger prints, DNA, blood, mugshots, arrest/arrest record of
alleged charges do to illegal commercial ... surety contracts
alleging DEATH or DEBT upon ‘RELEASE’ being granted.”
Id.
*7 Having reviewed the amended complaint, the Court finds
that Plaintiff has failed to plausibly allege that he is entitled
to any of the relief he seeks. A plaintiff may not collect
damages for his alleged wrongful imprisonment or conviction
without first showing “that [his] conviction or sentence has
been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court's
issuance of a writ of habeas corpus.” Heck v. Humphrey,
512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994).
Here, Plaintiff has made no such showing and a review of
the Department of Corrections and Community Supervision
website demonstrates that Plaintiff is still incarcerated.
Additionally, 18 U.S.C. § 241 is a criminal statute which
does not create a private cause of action. See Storm–Eggink
v. Gottfried, 409 Fed. Appx. 426, 427 (2d Cir.2011) (citing
cases).
Again, as discussed above, Plaintiff's claims against
Defendants Smith and White must be dismissed because
they are entitled to absolute immunity. See Hill, 45 F.3d at
660–61 (quotation omitted); DuQuin, 320 F.Supp.2d at 40–
41 (citation omitted). Additionally, Plaintiff's claims against
the Broome County Courts and the State of New York
are barred by the Eleventh Amendment. See Thomas, 2010
WL 662416, at * 1. Further, to the extent that Plaintiff is
seeking his immediate release from custody, such relief is
only available from this Court by way of a writ of habeas
corpus, issued pursuant to 28 U.S.C. § 2254. See Preiser, 411
U.S. at 498–99; see also Brown, 2014 WL 279847, at *5
(citation omitted). Finally, Plaintiff alleges no facts against
Defendant United States. Rather, the United States appears
to have been included as a Defendant solely under Plaintiff's
ludicrous sovereign citizen and redemptionist theories, which
are subject to dismissal.
Based on the foregoing, the Court finds that Plaintiff's
amended complaint fails to set forth any non-frivolous causes
of action. Since permitting additional amendment would
be futile, Plaintiff's amended complaint is dismissed with
prejudice.

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Muhammad v. Smith, Not Reported in F.Supp.3d (2014)

In view of the frivolous nature of Plaintiff's claims, the
Court certifies pursuant to 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, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962); see also Slack v.
McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d
542 (2000).

IV. CONCLUSION
After carefully considering Magistrate Judge Peebles' Report,
Recommendation, and Order, Plaintiff's objections thereto,
and the applicable law, and for the reasons stated herein, the
Court hereby
ORDERS that Magistrate Judge Peebles' October 16, 2013
Report, Recommendation, and Order is ADOPTED in part

ORDERS that Plaintiff's complaint and amended complaint
are DISMISSED with prejudice; and the Court further
*8 ORDERS that the Clerk of the Court shall enter
judgment in Defendants' favor and close this case; and the
Court further
ORDERS that the Clerk of the Court shall terminate
all pending motions not addressed in this Memorandum–
Decision and Order as moot; and the Court further
ORDERS that the Clerk of the Court shall serve Plaintiff with
a copy of this Memorandum–Decision and Order.
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.3d, 2014 WL 3670609

and REJECTED in part; 5 and the Court further

Footnotes
1

The Court notes that Plaintiff was convicted of Falsifying Business Records in the First Degree.

2

To determine whether an action is frivolous, a court must look to see whether the complaint “lacks an arguable
basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).

3

“Dismissal of frivolous actions pursuant to 28 U.S.C. § 1915e is appropriate to prevent abuses of the process
of the court,” Nelson v. Spitzer, No. 9:07–CV–1241, 2008 WL 268215, *1 n. 3 (N.D.N.Y. Jan.29, 2008) (citation
omitted), as well as “to discourage the filing of [baseless lawsuits], and [the] waste of judicial ... resources[.]”
Neitzke, 490 U.S. at 327.

4

Originally § 34 of the Judiciary Act of 1789, the Rules of Decision Act, now contained in 28 U.S.C. § 1652,
reads: “The laws of the several states, except where the Constitution or treaties of the United States or Acts
of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts
of the United States, in cases where they apply.” It is unclear how an improper application of the Rules of
Decision Act violated Plaintiff's rights and Plaintiff's nearly incomprehensible filings provide no insight.

5

Magistrate Judge Peebles' Report, Recommendation, and Order is only rejected insofar as it recommended
that the Court dismiss Defendant ABA without prejudice.

End of Document

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6

Balash-Ioannidou v. Contour Mortgage Corporation, Not Reported in Fed. Supp. (2022)

2022 WL 3358082
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Anna T. BALASH-IOANNIDOU, Plaintiff,
v.
CONTOUR MORTGAGE CORPORATION;
Wilmington Savings Fund Society, FSB, Defendants.
22-CV-4506 (AMD) (LB)
|
Signed August 15, 2022
Attorneys and Law Firms
Anna T. Balash-Ioannidou, Astoria, NY, Pro Se.

MEMORANDUM AND ORDER
ANN M. DONNELLY, United States District Judge:
*1 On July 22, 2022, the pro se plaintiff, Anna T. BalashIoannidou, filed a complaint against defendants Contour
Mortgage Corporation (“Contour”) and Wilmington Savings
Fund Society, FSB (“Wilmington”) in the United States
District Court for the Southern District of New York seeking
declaratory and injunctive relief with regards to foreclosure
proceedings involving real property located in Astoria,
Queens County, New York. (ECF No. 1.) The plaintiff also
submitted an unsigned order to show cause seeking to enjoin
“all actions ... including calculations, notice of sale, auction of
property, sale of property and transfer” of the property located
at 21-08 30 th Avenue, Astoria, New York (“the property”)
in her Supreme Court of the State of New York, Queens
County, Index No. 707379/2015 (“Queens County Supreme
Court”) foreclosure action. (ECF No. 2.) On August 1, 2022,
the action was transferred to this Court. For the reasons set
forth below, the case is dismissed for lack of subject matter
jurisdiction.

BACKGROUND
On July 14, 2015, a foreclosure action was instituted against
the plaintiff in Queens County Supreme Court seeking final
judgment and the sale of the property to satisfy the mortgage
in the amount of $645,300.00. Contour was the original
lender; Wilmington now holds the mortgage and lien and

is the “current foreclosing party” on the property in the
Queens County Supreme Court foreclosure action. (ECF
No. 1 at 2.) The plaintiff asserts that she has “issued a
payment through Notary Presentment to Defendants in the
amount of $645,300.00” to satisfy her debt, as well as a
“Notary Protest” and a “Certificate of Dishonor.” (Id. at 3.)
She seeks this Court's involvement in the dispute over her
alleged satisfaction of the mortgage, for removal of the lien
on the property and for “injunctive relief from the ongoing
foreclosure action.” (ECF No. 1 at 4-5.)

STANDARD OF REVIEW
In reviewing the plaintiff's complaint, the Court is mindful
that the submissions of a pro se litigant must be construed
liberally and interpreted “to raise the strongest arguments that
they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d
471, 474 (2d Cir. 2006). A district court may dismiss a pro
se action sua sponte, that is, on its own—even if the plaintiff
has paid the requisite filing fee—if the action is frivolous,
Fitzgerald v. First East Seventh Street Tenants Corp., 221
F.3d 362, 363-64 (2d Cir. 2000), or if the court lacks subject
matter jurisdiction over the matter. Fed. R. Civ. P. 12(h)(3).
“Failure of subject matter jurisdiction is not waivable and may
be raised at any time by a party or by the court sua sponte.
If subject matter jurisdiction is lacking, the action must be
dismissed.” Lyndonville Sav. Bank & Trust Co. v. Lussier, 211
F.3d 697, 700-01 (2d Cir. 2000); see Fed. R. Civ. P. 12(h)(3).
Federal subject matter jurisdiction is available only when a
“federal question” is presented, 28 U.S.C. § 1331, or when
plaintiffs and defendants are of diverse citizenship, and the
amount in controversy exceeds $75,000, 28 U.S.C. § 1332.

DISCUSSION
A. Younger Abstention
*2 Under the abstention doctrine set out by the Supreme
Court in Younger v. Harris, 401 U.S. 37, 43-45 (1971),
this Court lacks jurisdiction over the plaintiff's claims. “The
defining feature of Younger abstention is that even though
either a federal or a state court could adjudicate a given
claim, when there is an ongoing state proceeding in which
the claim can be raised, and when adjudicating the claim in
federal court would interfere unduly with the ongoing state
proceeding, the claim is more appropriately adjudicated in
state court.” Kirschner v. Klemons, 225 F.3d 227, 236 (2d Cir.
2000). Younger abstention is triggered by three categories of

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1

Balash-Ioannidou v. Contour Mortgage Corporation, Not Reported in Fed. Supp. (2022)

state court proceedings: (1) “state criminal prosecutions,” (2)
“civil enforcement proceedings,” and (3) civil proceedings
that “implicate a State's interest in enforcing the orders and
judgments of its courts.” Sprint Commc'ns, Inc. v. Jacobs, 571
U.S. 69, 72-73 (2013).
Here, the third prong of the Sprint rationale applies.
“[F]ederal court intervention in an on-going state foreclosure
proceeding ... [is] generally barred by Younger v. Harris.”
Fequiere v. Tribeca Lending, No. 14-CV-812, 2015 WL
1412580, at *7 (E.D.N.Y. Mar. 20, 2015) (quoting Marcelo v.
EMC Mortg. Corp., No. 10-CV-5964, 2011 WL 1792671, at
*4 (E.D.N.Y. May 6, 2011)). The plaintiff seeks declaratory
injunctive relief relating to the same property that is the
subject matter of the underlying state court actions. The
plaintiff's remedies are therefore limited to state court—either
in the original venue, or on appeal to the state appellate
court. Younger abstention bars her from seeking injunctive
and declaratory relief in a federal court.
B. The Anti-Injunction Act
The plaintiff's request for injunctive relief is also precluded by
the Anti-Injunction Act, which provides that, “[a] court of the
United States may not grant an injunction to stay proceedings
in State court except as expressly authorized by Act of
Congress, or where necessary in aid of its jurisdiction, or to
protect or effectuate its judgments.” 28 U.S.C. § 2283. This
provision applies when the requested injunction would either
stay the ongoing state proceedings or prevent the parties from
enforcing an order that has already issued. See Atlantic Coast
Line R.R. Co. v. Brotherhood of Locomotive Eng'rs., 398
U.S. 281, 294 (1970). Courts in this Circuit have consistently
held that the Anti-Injunction Act applies in the context of
pending state court foreclosure proceedings. See DiMicco v.
CitiMortgage, Inc., No. 20-CV-755, 2020 WL 804949, at *3
(E.D.N.Y. Feb. 18, 2020); Abbatiello v. Wells Fargo Bank,
N.A., No. 15-CV-4210, 2015 WL 5884797, at *5 (E.D.N.Y.
Oct. 8, 2015) (collecting cases).
C. Frivolous Claim
Finally, the Court would dismiss this case even if it had
jurisdiction, because the claims are frivolous. The basis for
the plaintiff's claim is that she has satisfied her debt and
is entitled to release from the lien on her property because
she mailed a “notary presentment” and related documents
to defendants. (ECF No. 1 at 1-4.) These documents (id.
at 7-18), appear to be asserting some sort of “sovereign
citizen” claim. See United States v. Ulloa, 511 F. App'x

105, 107 n.1 (2d Cir. 2013) (“[S]overeign citizens are a
loosely affiliated group who believe that the state and federal
governments lack constitutional legitimacy and therefore
have no authority to regulate their behavior; the FBI has
labeled the sovereign citizens a domestic terrorist group.”).
People who identify as sovereign citizens use maneuvers like
the notary presentment to avoid paying debts or to collect
debts that are not actually owed. See, e.g., Kesick v. Ulloa,
No. 10-CV-1248, 2012 WL 2873364, at *3 (N.D.N.Y. July
12, 2012) (Ulloa filed fraudulent papers entitled “notary
presentment” with the Town of Ulster Justice Court falsely
claiming that a Justice of the Ulster Town Court owed him the
sum of $176,000,000.00); see also McKay v. U.S. Bank, No.
14-CV-872, 2015 WL 5657110, at *2 (M.D. Ala. Sept. 24,
2015) (denying plaintiffs’ request for declaratory judgment
that the defendant was not the real mortgage holder and to
quiet title based upon their mailing of a “notarial presentment”
and a “notarial notice of Dishonor” to the defendant bank).
To the extent the plaintiff claims that her notary presentment
discharges her debt, the claim lacks an arguable basis in
law or fact. Muhammad v. Smith, No. 13-CV-760, 2014 WL
3670609, at *2 (N.D.N.Y. July 23, 2014) (“Theories presented
by redemptionist and sovereign citizen adherents have not
only been rejected by the courts, but also recognized as
frivolous and a waste of court resources.”) (collecting cases).

CONCLUSION
*3 Accordingly, the instant pro se complaint is dismissed
without prejudice for lack of subject matter jurisdiction
pursuant to Federal Rule of Civil Procedure 12(h)(3). The
motion for preliminary injunctive relief is denied. Further, in
keeping with its duty to liberally construe pro se complaints,
the Court has considered whether to grant leave to amend
the complaint but finds that amendment would be futile. See
Johnson v. Univ. of Rochester Med. Ctr., 642 F.3d 121, 124-25
(2d Cir. 2011).
Although the plaintiff paid the filing fee to bring this action,
the Court certifies pursuant to 28 U.S.C. § 1915 (a)(3) that
any in forma pauperis appeal from this order would not be
taken in good faith. Coppedge v. United States, 369 U.S. 438,
444-45 (1962).
SO ORDERED.

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2

Balash-Ioannidou v. Contour Mortgage Corporation, Not Reported in Fed. Supp. (2022)

All Citations
Not Reported in Fed. Supp., 2022 WL 3358082
End of Document

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3

Tyson v. Clifford, Not Reported in Fed. Supp. (2018)

2018 WL 6727538
Only the Westlaw citation is currently available.
United States District Court, D. Connecticut.
Deshawn TYSON, Plaintiff,
v.
Patrick J. CLIFFORD, et al., Defendants.
CIVIL CASE NO. 3:18cv1600(JCH)
|
Signed 12/21/2018
Attorneys and Law Firms
Deshawn Tyson, Suffield, CT, pro se.

INITIAL REVIEW ORDER
Janet C. Hall, United States District Judge
*1 The plaintiff, Deshawn Tyson (“Tyson”), is confined at
MacDougall-Walker Correctional Institution. He has filed a
pro se civil rights action pursuant to section 1983 of title 42
of the United States Code against New Haven Superior Court
Judge Patrick J. Clifford (“Judge Clifford”) and Connecticut
State’s Attorney John P. Doyle, Jr. (“Attorney Doyle”). For
the reasons set forth below, the Complaint is dismissed.
I. STANDARD OF REVIEW
Pursuant to section 1915A(b) of title 28 of the United States
Code, the court must review prisoner civil complaints against
governmental actors and “dismiss ... any portion of [a]
complaint [that] is frivolous, malicious, or 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.”
Id. This standard of review “appl[ies] to all civil complaints
brought by prisoners against governmental officials or entities
regardless of whether the prisoner has paid [a] filing fee.”
Shakur v. Selsky, 391 F.3d 106, 112 (2d Cir. 2004) (internal
quotation marks and citation omitted).
Rule 8 of the Federal Rules of Civil Procedure requires
that a complaint contain “a short and plain statement of
the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2). Although detailed allegations are
not required, “a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is

plausible on its face. 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal quotation marks and citations omitted). A
complaint that includes only “ ‘labels and conclusions,’ ‘a
formulaic recitation of the elements of a cause of action’ or
‘naked assertion[s]’ devoid of ‘further factual enhancement,’
” does not meet the facial plausibility standard. Id. (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007)
). Although courts still have an obligation to interpret “a
pro se complaint liberally,” the Complaint must still include
sufficient factual allegations to meet the standard of facial
plausibility. See Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009)
(citations omitted).
II. FACTS
Tyson states that he has been “wrong[ly] incarcerated” in
a facility within the State of Connecticut Department of
Correction since March 10, 2016. 1 See Compl. (Doc. No.
1) at 22. The State of Connecticut Judicial Branch website
reflects that New Haven police officers arrested Tyson on
March 10, 2016, and that the State of Connecticut has charged
him in a criminal case filed in the Connecticut Superior Court
for the Judicial District of New Haven with one count of
sexual assault in the first degree, in violation of Conn. Gen.
Stat. § 53a-70(a)(1), and one count of unlawful restraint in
the first degree, in violation of Conn. Gen. Stat. § 53a-95.
See State v. Tyson, Case No. NNH-CR16-0165313-T (Conn.
Super. Ct. Mar. 10, 2016). 2 The case detail indicates that
Tyson is represented by counsel and that a jury trial is
scheduled for December 16, 2020. See id.
*2 Tyson alleges that, on or about July 26, 2018, in the
Connecticut Superior Court for the Judicial District of New
Haven, Judge Clifford stated on the record that he had
instructed Attorney Doyle to ignore or disregard any motions,
memoranda, or affidavits filed by Tyson. See Compl. at 5
¶ 1, 22. Judge Clifford has ruled against Tyson even when
Attorney Doyle refused to oppose Tyson’s motions. See id.
at 17.
On or about August 22, 2018, Judge Clifford stated on
the record that he had instructed Attorney Doyle to remain
silent during a pretrial hearing and that Attorney Doyle
agreed to do so. See id. at 5 ¶ 2. On or about September
12, 2018, Judge Clifford stated on the record that he had
instructed Attorney Doyle to ignore or disregard Tyson’s

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1

Tyson v. Clifford, Not Reported in Fed. Supp. (2018)

“Conditional Acceptance/Negotiable instrument/grievance”
document. See id. at 5 ¶ 3. On that same date, Judge Clifford
informed Tyson that he would not consider any motions that
Tyson might file. See id. at 5 ¶ 4. Tyson generally asserts that
Judge Clifford and Attorney Doyle have misapplied statutes
and laws and have failed to provide him with “Discovery/
Brady material.” Id. at 6 ¶ 6, 17–18.
At one point during the criminal proceeding, Judge Clifford
issued an order that Tyson could represent himself. See id.
at 22. Judge Clifford subsequently attempted to appoint an
attorney to represent Tyson even though the attorney had
made threats against Tyson in the past. See id.
III. DISCUSSION
Tyson alleges that the defendants violated his rights under
the First, Fifth, Eighth, Ninth and Fourteenth Amendments
as well as under sections 241 and 242 of title 18 of the
United States Code. See id. at 17–18. Tyson seeks punitive,
compensatory, nominal, and exemplary damages, as well as
injunctive and declaratory relief. See id. at 6–7.
As a preliminary matter, the court notes that Tyson includes
the following additional allegations in the Complaint. The
“State of CT has declared me/plaintiff sovereign [f]rom
itself, as establish[ed] by law, because I/plaintiff had/has
no residency with the state and therefore plaintiff is not
only a private man as opposed to a corporate fiction.” See
id. at 6 ¶ 7. Tyson asserts that he cannot be “named in
any statutes” and has “a Reservation of Rights which was
made known to all defendants.” See id. at 6 ¶¶ 8–10. Tyson
contends that, throughout his criminal case, “defendants
[have] refuse[d] to adhere to the Supremacy Clause of the
United States Supreme Court rulings.” See id. at 6 ¶ 5.
Tyson signs the Complaint as: “Secured Party, Sui Juris, one
of the sovereign people, a private man on the land, noncombatant, an American by birth, and child of the living
God, Grantor, Secured Party/Creditor and principal of which
‘Rights’ existed long antecedent to the Organization of the
State and Trustee.” Id. at 33. Attached to the Complaint is
a document titled “Memorandum of Law with points and
Authorities on ‘sovereignty’ of the people In Relationship to
‘Government’ of the several Compact De-facto State and the
Federal Government.” Id. at 25–32.
This language and the title of the attachment to the Complaint
suggest that Tyson considers himself a “sovereign citizen.”
In United States v. Ulloa, 511 F. App'x. 105 (2d Cir. 2013),
the Second Circuit described, “sovereign citizens,” as “a

loosely affiliated group who believe that the state and federal
governments lack constitutional legitimacy and therefore
have no authority to regulate their behavior.” Id. at 107 n.1.
*3 Adherents of such claims or defenses “believe that
they are not subject to government authority and employ
various tactics in an attempt to, among other things,
avoid paying taxes, extinguish debts, and derail criminal
proceedings.” Gravatt v. United States, 100 Fed. Cl. 279, 282
(2011) (citations omitted). Federal courts across the country,
however, have routinely refused to credit arguments based
on a redemption, sovereign citizen, or other similar theory
because the arguments are often frivolous, irrational and
unintelligible. See United States v. Sterling, 738 F.3d 228,
233 n.1 (11th Cir. 2013) (noting that courts have summarily
rejected sovereign citizens' legal theories as frivolous);
United States v. Benabe, 654 F.3d 753, 767 (7th Cir. 2011)
(“Regardless of an individual’s claimed status of descent, be it
as a sovereign citizen, a secured-party creditor, or a flesh-andblood human being, that person is not beyond the jurisdiction
of the courts. These theories should be rejected summarily,
however they are presented.”) (internal quotation marks
omitted); Charlotte v. Hanson, 433 F. App'x. 660, 661 (10th
Cir. 2011) (rejecting the sovereign citizen theory as having
no conceivable validity in American law) (citation omitted);
United States v. Jagim, 978 F.2d 1032, 1036 (8th Cir. 1992)
(holding that “sovereign citizen” argument was “completely
without merit” and “patently frivolous”); Akbar v. Clarke,
No. 1:15-CV-338(AJT/TCB), 2016 WL 4150456, at *7 (E.D.
Va. Aug. 1, 2016) (noting that sovereign citizen claims are
“wholly frivolous”); Berman v. Stephens, No. 4:14-CV-860A, 2015 WL 3622694, at *2 (N.D. Tex. June 10, 2015)
(finding that a prisoner’s “reliance on the UCC or a so-called
‘sovereign citizen’ theory that he is exempt from prosecution
and beyond the jurisdiction of the state or federal courts is
frivolous”) (collecting cases); Gaskins v. South Carolina, C/
A No. 2:15-cv-2589 DCN, 2015 WL 6464440, at *4 (D.S.C.
Oct. 26, 2015) (affirming recommended ruling dismissing as
baseless prisoner’s claim, premised upon “sovereign citizen”
theory, that the state court lacked jurisdiction over her and
that her state conviction was therefore void); Paul v. New
York, No. 13-CV-5047 (SJF)(AKT), 2013 WL 5973138, at *3
(E.D.N.Y. Nov. 5, 2013) (dismissing complaint as factually
and legally frivolous because “[t]he conspiracy and legal
revisionist theories of sovereign citizens are not established
law in this court or anywhere in this country’s valid legal
system”) (internal quotation marks and citation omitted).

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2

Tyson v. Clifford, Not Reported in Fed. Supp. (2018)

It is apparent that Tyson is claiming that, as a “sovereign
citizen,” he is not subject to the jurisdiction of the State
of Connecticut or the Connecticut Superior Court and that
any criminal charges against him must be dismissed. To
the extent that he challenges the jurisdiction of the State of
Connecticut, its courts, or Judge Clifford, or the authority of
the State, through Attorney Doyle, to prosecute him for a
criminal offense, based on a “sovereign citizen” theory, the
court concludes that the claim lacks an arguable legal basis.
Thus, that claim is dismissed. See 28 U.S.C. § 1915A(b)(1).
To the extent that Tyson is challenging the conduct of the
defendants on other grounds, the court addresses those claims
below.
A. Requests for Injunctive and Declaratory Relief
Tyson seeks a declaration that the defendants violated his
constitutional and federal protected rights and an injunction
directing the defendants to cease and desist from making
further contact with him or harassing him in violation of his
rights. See Compl. at 7. He includes, an “Order to Show Cause
for an Preliminary Injunction and a Temporary Restraining
Order,” as an attachment to the Complaint, which seeks a
court order that the defendants be enjoined from various types
of conduct in connection with his state criminal case. See id.
at 19–20.
In Younger v. Harris, 401 U.S. 37 (1971), the Supreme
Court held that a federal court, except in cases where an
injunction is necessary to prevent immediate and irreparable
injury to a defendant, should not enjoin a pending state
court criminal proceeding. Id. at 45. The doctrine of federal
abstention, as outlined in Younger, “is grounded in principles
of comity and federalism and is premised on the belief that
a state proceeding provides a sufficient forum for federal
constitutional claims.” Schlagler v. Phillips, 166 F.3d 439,
442 (2d Cir. 1999). It “is not a jurisdictional bar based on
Article III requirements, but instead a prudential limitation
on the court’s exercise of jurisdiction grounded in equitable
considerations of comity.” Spargo v. New York State Comm'n
on Judicial Conduct, 351 F.3d 65, 74 (2d Cir. 2003) (citations
omitted).
In Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. 69 (2013),
the Supreme Court clarified that courts should abstain under
Younger only in three “exceptional circumstances”: (1)
pending state criminal proceedings; (2) civil enforcement
proceedings that are “akin to criminal prosecutions;” and (3)
civil proceedings that “implicate a State’s interest in enforcing
the orders and judgments of its courts.” See id. at 72. The

court may address the applicability of the Younger abstention
doctrine sua sponte. See Catlin v. Ambach, 820 F.2d 588,
591 (2d Cir. 1987) (citing Bellotti v. Baird, 428 U.S. 132,
143 n.10 (1976) ). The Younger doctrine is as applicable
to suits for declaratory relief as it is to those for injunctive
relief. See Samuels v. Mackell, 401 U.S. 66, 73 (1971)
(holding Younger’s policy would “be frustrated as much by a
declaratory judgment as it would be by an injunction”).
*4 It is clear from the Complaint and the State of
Connecticut Judicial Branch website, that Tyson’s state
criminal proceeding stemming from his arrest on March
10, 2016 is ongoing. See State v. Tyson, Case No. NNHCR16-0165313-T (Conn. Super. Ct. Nov. 30, 2018). If the
court were to grant Tyson’s request for a court order directing
the defendants to dismiss the criminal charges against Tyson,
or were to declare that the defendants had violated Tyson’s
federal constitutional rights in presiding over and prosecuting
Tyson’s state criminal case, such Orders would interfere with
Tyson’s pending state criminal proceeding.
There are two exceptions to the Younger abstention doctrine:
bad faith and extraordinary circumstances. See Diamond “D”
Constr. Corp. v. McGowan, 282 F.3d 191, 197–198 (2d Cir.
2002). Abstention may be inappropriate if “a prosecution
or proceeding has been brought to retaliate for or to deter
constitutionally protected conduct, or where a prosecution
or proceeding is otherwise brought in bad faith or for the
purpose to harass.” Id. at 199 (internal quotation marks and
citation omitted). This exception focuses on the subjective
intent or motivation of the state prosecutor who initiates the
proceeding. See id. (“A state proceeding that is legitimate in
its purposes, but unconstitutional in its execution—even when
the violations of constitutional rights are egregious—will not
warrant the application of the bad faith exception.”) (citation
omitted).
The Second Circuit has described the extraordinary
circumstances necessary to invoke the second exception to
abstention under Younger as circumstances that “render the
state court incapable of fairly and fully adjudicating the
federal issues before it” and “creat[e] an extraordinarily
pressing need for immediate federal equitable relief.” Id.
at 201 (citation omitted). Application of the extraordinary
circumstances exception requires “two predicates ... (1) that
there be no state remedy available to meaningfully, timely,
and adequately remedy the alleged constitutional violation;
and (2) that a finding be made that the litigant will suffer ‘great

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3

Tyson v. Clifford, Not Reported in Fed. Supp. (2018)

and immediate’ harm if the federal court does not intervene.”
Id. (citation omitted) (emphasis in original).
Tyson has alleged no facts to suggest that the prosecutor
initiated the criminal action against him in bad faith or
with “no reasonable expectation of obtaining a favorable
outcome.” Id. at 199 (internal quotation marks and citation
omitted). Nor has Tyson alleged the absence of a remedy
available in state court to challenge any alleged constitutional
violations associated with his criminal prosecution. Tyson is
not precluded from challenging any subsequent conviction
or sentence on appeal to the Connecticut Appellate and
Supreme Courts, filing a habeas petition in the Connecticut
Superior Court, and following that, a habeas petition in
federal court. Furthermore, Tyson has not alleged that he
will suffer imminent harm if this court does not intervene in
the ongoing prosecution. See Davis v. Lansing, 851 F.2d 72,
77 (2d Cir. 1988) (holding the burden of defending criminal
prosecution is insufficient, without more, to constitute
irreparable harm); Saunders v. Flanagan, 62 F. Supp. 2d
629, 635 (D. Conn. 1999) (“That the plaintiff will be forced
to defend against a charge of murder in state court does
not constitute the extraordinary circumstances resulting in
irreparable harm warranting this court to refuse to apply the
doctrine of Younger abstention, and no other specific basis of
‘extraordinary circumstances’ is asserted.”).
*5 Because there are no facts alleged to plausibly suggest
that either of the narrow exceptions to the Younger abstention
doctrine have been met, the court abstains from exercising
jurisdiction over the requests for injunctive and declaratory
relief seeking intervention in Tyson’s ongoing state criminal
case. The court therefore dismisses those requests. See 28
U.S.C. § 1915A(b)(1).
B. Request for Money Damages
Tyson seeks $ 1,000,000 in punitive damages from each
defendant as well as damages for harassment, mental anguish,
anxiety and annoyance, nominal damages and exemplary
damages. See Compl. at 6. The court declines to stay this
action pending resolution of the state criminal proceeding
because Tyson’s claims for damages lack arguable legal merit.

1. Judge Clifford
Judges are immune from suit, not just from the ultimate
assessment of damages. See Mireles v. Waco, 502 U.S. 9, 11

(1991). This immunity applies even to claims that a judge
acted in bad faith, erroneously, maliciously or “in excess of
his authority.” Id. at 13. “[O]nce a court determines that an
official was functioning in a core judicial or prosecutorial
capacity, absolute immunity applies however erroneous the
act may have been, and however injurious in its consequences
it may have proved to the plaintiff.” DiBlasio v. Novello, 344
F.3d 292, 297 (2d Cir. 2003) (citations and internal quotation
marks omitted). There are two situations in which judicial
immunity may be overcome. A judge is not immune from suit
for actions taken outside his judicial capacity or for actions
that are judicial in nature but taken in the absence of all
jurisdiction. See Mireles, 502 U.S. at 11 (citations omitted).
Tyson alleges that, at times during the pendency of his state
criminal case, Judge Clifford has instructed Attorney Doyle
not to speak during a pretrial hearing, has either declined
to rule on his motions or ruled against him on matters
and motions, has disregarded his Acceptance/Negotiable
Instrument/Grievance document, has misapplied statutes, and
has refused to provide or disclose discovery/exculpatory
material to him. See Compl. at 5, 17–18. Tyson complains
that, at one point, Judge Clifford permitted him to proceed pro
se, but would not rule on his motions. See id. at 22. Tyson
suggests that more recently, Judge Clifford has attempted
to appoint counsel for him, even though he did not ask for
counsel. See id. Tyson claims that the attorney Judge Clifford
attempted to appoint for him had threatened Tyson in the past.
See id.
Appointing counsel for a party and determining whether to
rule on motions, ruling on motions, including motions related
to the disclosure of information or evidence, issuing orders
regarding documents that have been filed in a case, directing
speakers during proceedings, and interpreting and applying
statutes constitute judicial acts within the jurisdiction of a
state court judge. See Sadler v. Supreme Court of Connecticut,
167 F. App'x 257, 259 (2d Cir. 2006) (“Superior Court Judge
White is immune from liability under § 1983 for damages
and injunctive relief. Judge White performed a judicial action
within his jurisdiction when he determined that Sadler’s
counsel ... should not be replaced.”) (citation omitted);
Ashmore v. Prus, No. 13-CV-2796 (JG), 2013 WL 3149458,
at *3 (E.D.N.Y. June 19, 2013) (“Making evidentiary rulings
is a paradigmatic judicial function.”); Book v. Tobin, No.
3:04CV442 (JBA), 2005 WL 1981803, at *2 (D. Conn. Aug.
16, 2005) (“Quintessential judicial acts include presiding
over trial proceedings, making evidentiary rulings, issuing
jury instructions, and deciding motions, and remain protected

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4

Tyson v. Clifford, Not Reported in Fed. Supp. (2018)

by judicial immunity even if the decisions are erroneous,
untimely, and in excess of the judge’s authority.”). There are
no allegations that Judge Clifford engaged in actions that
were not judicial in nature or were taken in the absence of all
jurisdiction. Thus, Judge Clifford is absolutely immune from
suit to the extent that Tyson seeks money damages, and those
claims against Judge Clifford are dismissed. See 28 U.S.C. §
1915A(b)(2).

2. Attorney Doyle
*6 Tyson alleges that Attorney Doyle is the State’s Attorney
prosecuting his criminal case in the Connecticut Superior
Court for the Judicial District of New Haven. See Compl. at
3, 5. Tyson asserts that Attorney Doyle did not speak during
a pretrial hearing, did not respond to motions that he filed
in the case, ignored his Acceptance/Negotiable Instrument/
Grievance document, misapplied statutes, and refused to
disclose discovery/exculpatory material to him. See id. at 5
¶ 2, 17–18. Tyson contends that, by failing to respond to his
motions, Attorney Doyle has consented to the relief sought
in those motions, including a motion to dismiss the charges
against him. See id. at 20.
A prosecutor is protected by absolute immunity from a section
1983 action “for virtually all acts, regardless of motivation,
associated with his function as an advocate.” Dory v. Ryan,
25 F.3d 81, 83 (2d Cir. 1994). In Imbler v. Pachtman, 424 U.S.
409 (1976), the Supreme Court held that a state prosecutor
was absolutely immune from a civil suit to recover damages
under section 1983 because the prosecutor’s conduct “in
initiating a prosecution and presenting the State’s case” were
“intimately associated with the judicial phase of the criminal
process.” Id. at 430–31. If a prosecutor acts in an investigative
rather than an adversarial capacity, he or she is not entitled
to absolute immunity. See Kalina v. Fletcher, 522 U.S. 118,
125–27 (1997) (holding that prosecutor was not protected by
absolute immunity because she was acting as an investigator
when she signed a sworn affidavit attesting to the facts
supporting an arrest warrant).
Tyson’s allegations against Attorney Doyle pertain to his role
in prosecuting the criminal case against Tyson. Decisions
involving whether to respond to a motion, to argue a matter
in a pretrial hearing, or to disclose evidence to a defendant
are all part of the preparation of a case for trial. See Shmueli

v. City of New York, 424 F.3d 231, 236 (2d Cir. 2005) (“It
is by now well established that ‘a state prosecuting attorney
who acted within the scope of his duties in initiating and
pursuing a criminal prosecution’ ‘is immune from a civil suit
for damages under § 1983.’ ”) (quoting Imbler, 424 U.S. at
410, 431); Smith v. Garretto, 147 F.3d 91, 94 (2d Cir. 1998)
(“A prosecutor enjoys absolute immunity for acts taken in
initiating a prosecution and in presenting the State’s case,
whether at a trial, a preliminary hearing, or a bail hearing.”)
(internal citations and quotation marks omitted); Hill v. City
of New York, 45 F.3d 653, 661 (2d Cir. 1995) (explaining that
prosecutors are “immune for conduct in preparing for those
functions; for example, evaluating and organizing evidence
for presentation at trial or to a grand jury, or determining
which offenses are to be charged”) (citation omitted). Thus,
Attorney Doyle is immune from this suit.

ORDERS
The court enters the following Orders:
(1) To the extent that Tyson challenges, based on a “sovereign
citizen” theory, the jurisdiction of the State of Connecticut
to prosecute him for a criminal offense, or the authority
of any defendant to be involved in his prosecution, the
court concludes that the claim lacks an arguable legal basis
and is DISMISSED. See 28 U.S.C. § 1915A(b)(1). The
claims against Judge Clifford and Attorney Doyle in their
individual capacities for money damages are DISMISSED
on the ground that they are entitled to absolute immunity.
See 28 U.S.C. § 1915A(b)(2). The court concludes that it
must abstain from exercising jurisdiction over the requests
for injunctive and declaratory relief seeking the court’s
intervention in Tyson’s ongoing state criminal case and
DISMISSES those requests. See 28 U.S.C. § 1915A(b)(1).
*7 (2) The Clerk is directed to enter judgment for the
defendants and close this case. Any appeal from the Ruling
dismissing the Complaint would not be taken in good faith.
See 28 U.S.C. § 1915(a)(3).
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2018 WL 6727538

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5

Tyson v. Clifford, Not Reported in Fed. Supp. (2018)

Footnotes
1

The State of Connecticut Department of Correction’s website indicates, however, that Tyson is currently
serving a nine-year sentence, imposed on January 25, 2017, for a violation of probation. Information regarding
Tyson’s current confinement may be found on the State of Connecticut Department of Correction’s website
under Inmate Search using his CT DOC Inmate Number 253494. See http://portal.ct.gov/DOC.

2

Information regarding this case may be found on the State of Connecticut’s Judicial Branch website at:
http://www.jud.ct.gov/jud2.htm under Superior Court Case Look-up; Criminal/Motor Vehicle; Pending Case –
Search by Defendant – using plaintiff’s last name and first initial of his first name - Tyson, D. (Last visited on
December 19, 2018). The court notes that Tyson has filed another federal lawsuit against the victim of the
alleged offenses for which he was arrested on March 10, 2016, as well as the police officers who arrested
him. See Tyson v. Doe, et al., Case No. 3:17cv731(JCH). The court has stayed that action pending resolution
of Tyson’s state criminal case. See id. (Ruling on Mot. to Intervene or Stay Discovery, Doc. No. 133).

End of Document

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6

Steinkirchner v. Gordon, Not Reported in Fed. Supp. (2020)

2020 WL 549087
Only the Westlaw citation is currently available.
United States District Court, W.D. Pennsylvania.
Anastasia STEINKIRCHNER, Plaintiff,
v.
Benjamin E. GORDON, Eric M. Hurwitz,
Stradley, Ronon, Stevens & Young, LLP
Navient Solutions, LLC, Defendants.
2:19-cv-01241
|
Signed 02/04/2020
Attorneys and Law Firms
Anastasia Steinkirchner, Pittsburgh, PA, pro se.
Benjamin E. Gordon, Stradley, Ronon, Stevens & Young,
LLP, Philadelphia, PA, for Defendants.

OPINION
Mark R. Hornak, Chief United States District Judge
*1 The Plaintiff, Anastasia Steinkirchner, proceeding pro se,
filed a state court complaint against Navient Solutions, LLC
(“Navient”) in the Magisterial District Court for Allegheny
County, Pennsylvania. (ECF No. 1-1, at 2.) Navient removed
the action to this Court and then moved to dismiss. (ECF
Nos. 1, 8.) The Plaintiff moved to amend her state court
complaint, which the Court granted as a matter of course
under Rule 15(a). (ECF Nos. 12, 15.) An Amended Complaint
was filed, joining Navient's law firm and counsel of record
as defendants. (ECF No. 16.) Navient and its law firm and
counsel (collectively “the Defendants”) moved to dismiss the
Amended Complaint. (ECF No. 17.) The Plaintiff responded,
the Defendants replied, and this matter became ripe for
disposition. (ECF Nos. 20, 23.)
I. STATEMENT OF THE FACTS
The Plaintiff's bare-bones state court complaint alleged
violations of the Fair Debt Collections Practices Act
(“FDCPA” or “the Act”), specifically 15 U.S.C. §§ 1692e,
“False or misleading representations” and 1692f, “Unfair
practices,” and sought $12,000 in damages. (ECF No. 1-1, at
3.) The facts set forth in the state court complaint read in their

entirety, “Terms of ‘collection activities’ listed in affidavit
and subsequent letters was violated. Phone calls persisted and
constitutes harrassment [sic].” (Id.) In her otherwise extensive
Amended Complaint, the Plaintiff presented no additional
facts. (ECF No. 16, at 1.) Instead, the Plaintiff stated that
because she is no longer limited to a “maximum dollar
amount” in state court, she now seeks “$28,181.85 (including
filing fees).” (Id.) The Plaintiff arrived at that number by
“seeking $1,000 in damages for each and every [FDCPA]
violation” 1 plus the filing fees she paid. (Id.) To support those
violations, the Plaintiff incorporated by reference records of
phone calls and voicemails attached as Exhibit A to her
Motion for Leave to Amend. (ECF No. 12, at 4–32.)
From those records, the Court discerned these asserted facts.
The Plaintiff received missed calls, voicemails, or both from
phone numbers she attributes to Navient. (Id.) The Plaintiff
claims there were twenty-eight (28) offending calls. (ECF No.
16, at 1.) For its part, the Court counts twenty-six (26) separate
calls. (ECF No. 12, at 4–32.) The discrepancy might be that
these records consist of screenshots from a cell phone. Some
screenshots of missed calls have a corresponding screenshot
of a voicemail from the same phone number and left at
nearly the same date and time. The Plaintiff does not clarify
where a certain voicemail corresponds to a certain phone call.
The Court also found one duplicate among the screenshots. 2
Finally, there is also very little in the record about the actual
content of the voicemails. 3
*2 The Plaintiff also incorporated by reference Exhibit
B to her Motion for Leave to Amend, the state court
complaint and the documents she originally included with that
complaint. (Id. at 33–72.) The limited content of the state
court complaint is discussed above. The attached documents
include an “Affidavit of Legal Notice and Demand to Validate
Debt Claim” (“the Affidavit”), a “Notary Certificate of
Dishonor and Non-Response” (“the Certificate”), and a “NonNegotiable Notice of Default Opportunity to Cure” (“the
Notice”). 4 (Id.)
These documents suggest that in March 2019 the Plaintiff
wrote an Affidavit claiming to bind Navient to the Affidavit's
terms if Navient failed to respond. (Id. at 37 (“SILENCE IS
ACQUIESCENCE”).) The Affidavit demanded that Navient
“cease and desist” all collection activities “prior to validation
of purported debt.” (Id.) The Affidavit required Navient to
produce a list of documents to verify this debt within thirty
(30) days. (Id. at 38.)

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1

Steinkirchner v. Gordon, Not Reported in Fed. Supp. (2020)

her correspondence is legally binding on Navient and so those
In May 2019, the Plaintiff drafted, signed, and notarized the
Certificate. (Id. at 40.) This document claimed to bind Navient
legally for its failure to respond to the Plaintiff's Affidavit.
(Id.) Further, it purportedly “dishonors” any claim of debt
and associated costs or fees (Id.) The pagination suggests that
attached to the Certificate was a letter. (Id. at 41.) The letter,
dated the same day as the Certificate, gave Navient another
ten days to provide documents and information proving the
existence of a debt. (Id.) The letter also mentioned an account
number. (Id.) Whether this number is an account the Plaintiff
held with Navient or is unrelated, the record does not reveal.
The last document is the Notice. (Id. at 42.) The document
is yet a third letter to Navient, dated around three weeks
later, also in May 2019. (Id.) The letter included the same
account number as the Certificate and recounted the previous
correspondence the Plaintiff sent to Navient. (Id.) Noting
Navient's failure to respond adequately (as defined by the
Plaintiff), this letter purported to bind Navient to these terms:
1. That the debt did not exist in the first place; OR
2. It has already been paid in full; AND
3. That any damages I suffer, you will be held culpable;
4. That any negative remarks made, to a credit reference
agency will be removed;
5. You will no longer pursue this matter any further. You
have not proven any debt. If you sell the alleged liability,
and/or appoint an agent to act on its/your behalf in
this matter you will have broken our agreement and
you agree to pay the following fee schedule $5,400 for
dishonoring our binding agreement, plus $1000 per hour
or part thereof for Authorized Representatives time nunc
pro tunc, plus $1000 per recorded delivery or any other
form of response nunc pro tunc. Also, NO further contact
is now necessary, however, if you decide to contact me
by phone or letter the fee is $100 per item payable in
advance by cheque; if no payment is made in advance
the fee will rise to $ 1000 per item and you will also be
held culpable for any costs incurred while recovering the
debt you owe.
(Id.) In essence, the Plaintiff has received multiple debt
collection calls and she believes she successfully discharged
her debt obligation by unilaterally sending these various
letters and documents to Navient. The Plaintiff assumes that

documents are also the source of her damages calculation. 5
II. JURISDICTION
*3 The Court has original jurisdiction under 28 U.S.C. §
1331 to decide this case. The Amended Complaint alleges
claims under the FDCPA, and therefore the action arises under
federal law. All other requirements for removal are satisfied.
The Magisterial District Court for Allegheny County rests
within the Western District of Pennsylvania. 28 U.S.C. §
1441. The Defendants filed their Notice of Removal within
thirty (30) days of receipt. 28 U.S.C. § 1446(b).
III. LEGAL STANDARDS
A. Rule 12(b)(6) Motions
The Defendants moved to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6). Rule 12(b)(6) allows dismissal
for “failure to state a claim upon which relief can be granted.”
Fed. R. Civ. P. 12(b)(6). A complaint must “state a claim to
relief that is plausible on its face” by providing facts which
“permit the court to infer more than the mere possibility of
misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009).
When determining whether dismissal is appropriate, the Court
must: “(1) identify[ ] the elements of the claim, (2) review[ ]
the complaint to strike conclusory allegations, and then (3)
look[ ] at the well-pleaded components of the complaint and
evaluat[e] whether all of the elements identified in part one
of the inquiry are sufficiently alleged.” Malleus v. George,
641 F.3d 560, 563 (3d Cir. 2011). The Court should “accept
all factual allegations as true, construe the complaint in the
light most favorable to the plaintiff, and determine whether,
under any reasonable reading of the complaint, the plaintiff
may be entitled to relief.” Blanyar v. Genova Prods. Inc., 861
F.3d 426, 431 (3d Cir. 2017). “A Rule 12(b)(6) motion should
be granted when it appears to a certainty that no relief can
be granted under any set of facts which could be proved.”
Nichole Med. Equip. & Supply, Inc. v. TriCenturion, Inc., 694
F.3d 340, 350 (3d Cir. 2012).

B. Pro Se Pleadings
The Plaintiff is proceeding pro se. As a result, the Court
holds the Amended Complaint to a less stringent standard
and the Court must liberally construe the Plaintiff's pleading.

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2

Steinkirchner v. Gordon, Not Reported in Fed. Supp. (2020)

Becker v. Comm'r, 751 F.2d 146, 149 (3d Cir. 1984); see also
Carter v. Kane, 717 F. App'x 105, 108 (3d Cir. 2017) (citing
Erickson v. Pardus, 551 U.S. 89, 94 (2007)) (holding the same
post-Twombly and Iqbal). That said, even “pro se litigants still
must allege sufficient facts in their complaints to support a
claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245
(3d Cir. 2013).
IV. DISCUSSION
The Court accepts the well-pleaded facts (such as they are)
as true and views the case in the light most favorable to
the Plaintiff. The Court thus presumes that Navient placed
all the calls and voicemails evidenced. It presumes that the
Plaintiff sent the documents discussed above to Navient, and
that Navient failed to respond. 6 Still, the Court will grant the
Defendants’ Motion to Dismiss.

A. Claims Against Navient's Law
Firm and Counsel of Record
First, the claims against Benjamin E. Gordon, Eric M.
Hurwitz, and Stradley, Ronon, Stevens & Young, LLP
(“SRSY”) are dismissed. In reviewing the Amended
Complaint and incorporated filings, the Court finds that the
Plaintiff fails to state any claim as to these defendants. Certain
filings by the Plaintiff, which the Court either denied or struck
as irrelevant, show that the Plaintiff joined Mr. Gordon and
Mr. Hurwitz as defendants based on her belief that these
attorneys cannot practice law or represent Navient. 7 8 (See
ECF Nos. 11, 13, 18, 24.) The Plaintiff apparently joined
SRSY based on the Plaintiff's belief that the law firm “is
acting as a debt collector without a license, a bond and
they are not registered under the [FDCPA]”—an assertion
provided with no supporting facts. (ECF No. 11, at 1.) This
allegation does not appear on the face of the complaint or in
any incorporated documents. But even if it did, the allegation
would be struck as a conclusory, legal statement. Malleus,
641 F.3d at 563. SRSY and Navient's counsel of record state
that Navient retained them for legal representation. (ECF No.
17, at 1.) They were not involved in any underlying activity
before their retention. (Id.) Given that none of the facts
proffered by the Plaintiff assert FDCPA violations by SRSY
or counsel of record, the claims against them are dismissed. 9
Leave to amend the complaint as to these defendants is also
denied because they are not “debt collectors” or engaged in
“debt collection activity,” and thus not covered by the FDCPA
as discussed below.

B. FDCPA Claims Against Navient
*4 To prevail on a claim under the FDCPA, a plaintiff must
satisfy four elements: “(1) she is a consumer, (2) the defendant
is a debt collector, (3) the defendant's challenged practice
involves an attempt to collect a ‘debt’ as the Act defines it, and
(4) the defendant has violated a provision of the FDCPA in
attempting to collect the debt.” Jensen v. Pressler & Pressler,
791 F.3d 413, 417 (3d Cir. 2015). Viewed in the light most
favorable to the Plaintiff, the Complaint adequately alleges
the first and third elements, but she fails to plead the second
and fourth elements.

1. Element (1)—“Consumer”
First, the term “consumer” is defined under the Act as “any
natural person obligated or allegedly obligated to pay any
debt.” 15 U.S.C. § 1692a(3) (emphasis added). Navient does
not dispute that the Plaintiff is a natural person who is
allegedly obligated to pay any debt.

2. Element (3)—“Debt Collection”
The third element requires the Plaintiff to show that Navient's
activity is “debt collection.” The FDCPA regulates, but does
not define, “debt collection.” The Third Circuit has held
the term encompasses “any conduct taken in connection
with the collection of any debt” or “activity undertaken for
the general purpose of inducing payment.” McLaughlin v.
Phelan Hallinan & Schmieg, LLP, 756 F.3d 240, 245 (3d Cir.
2014). Communications need not include an explicit demand
for payment to be “debt collection” activity. Id. Covered
activity could also consist of “communications that include
discussions of the status of payment, offers of alternatives to
default, and requests for financial information.” Id. at 245–
46. Thus, it could be said that most, if not all, calls from a debt
collector would constitute “debt collection” activity. Debt
collectors usually don't call just to say, “hi.” Viewed in the
light most favorable to the Plaintiff, the Court finds that there
is a plausible showing that there is a debt in which Navient has
some interest. The account number in the Plaintiff's letters to
Navient, as well as by the calls and voicemails she received,
show this to be the case. 10 Accepting the Plaintiff's claim that
the calls and voicemails were from Navient, the Court finds

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3

Steinkirchner v. Gordon, Not Reported in Fed. Supp. (2020)

that this element is also satisfactorily pleaded. Even so, the
inquiry still hinges on Navient being a “debt collector” in the
first place.

3. Element (2)—“Debt Collector”
In their Motion to Dismiss, the Defendants mainly challenge
Navient's status as a “debt collector” as defined under the
FDCPA. The Act generally defines a “debt collector” as
“any person (1) who uses any instrumentality of interstate
commerce or the mails in any business the principal purpose
of which is the collection of any debts (the principal purpose
definition), or (2) who regularly collects or attempts to collect,
directly or indirectly, debts owed or due or asserted to be owed
or due another (the regularly collects definition).” Barbato
v. Greystone All., LLC, 916 F.3d 260, 265 (3d Cir. 2019)
(internal quotations omitted). The definition includes several
exclusions, under which the Defendants say Navient falls. 11
*5 The Defendants argue that the FDCPA's definition of
“debt collector” applies only to those who collect debts
on behalf of others. (ECF No. 17-1, at 5.) The definition
thus excludes creditors collecting on a debt that the creditor
originated. 12 (Id.) The Defendants also argue that the
FDCPA excepts loan servicing companies, like Navient, and
assignees of student loan debt “so long as that debt was not
in default at the time the debt was obtained.” (Id. at 6.) The
Defendants cite several opinions holding that loan servicing
companies are not “debt collectors” under the FDCPA. (Id.
(citing cases from the 2d Cir., 5th Cir., 6th Cir., C.D. Cal., D.
Haw., E.D. Mich., D.N.J., and E.D. Pa.).) Navient itself was a
defendant in several of those cases. 13 Thus, the Defendants
argue that the Amended Complaint should be dismissed
because Navient cannot be a debt collector as a matter of law.
They further argue that if the Court dismisses the Amended
Complaint, it should also deny leave to amend because no
amendment could cure this deficiency. (Id. at 7.)
The cases the Defendants cited from this Circuit suggest that
a key factual element in determining whether a defendant is
a covered “debt collector” or an uncovered loan servicer is
whether the debt was in default when that defendant acquired
it. In Levy-Tatum v. Navient and Sallie Mae Bank, the court
focused on the debt collector exclusion under 15 U.S.C. §
1692a(6)(F)(iii). No. CV 15-3794, 2016 WL 75231, at *6
(E.D. Pa. Jan. 7, 2016). That subparagraph excludes “any
person collecting or attempting to collect any debt owed or

due or asserted to be owed or due another to the extent such
activity ... concerns a debt which was not in default at the
time it was obtained by such person.” Id. Because Navient
had “maintained responsibility for servicing the loan from
its inception” and before it defaulted, the complaint in LevyTatum failed to establish Navient was a debt collector. Id. at
*7. As a result, the exclusion in § 1692a(6)(F)(iii) applied
and the claim was dismissed. Id. See also Spyer v. Navient
Sols., Inc., No. 15-3814, 2016 WL 1046789, at *3 (D.N.J.
Mar. 15, 2016) (“Navient is not a ‘debt collector’ under the
FDCPA under these circumstances because it became the loan
servicer ... while plaintiff's loan were not in default.”); Caione
v. Navient Corp., No. CV 16-0806, 2016 WL 4432687 (D.N.J.
Aug. 18, 2016) (holding the same).
After the Defendants here moved to dismiss, the Court
specifically ordered the Plaintiff to address the arguments
in the Defendants’ Motion. (ECF No. 19.) The Court felt
that this was necessary after the Plaintiff filed only a “NonNegotiable Notice of Default Opportunity to Cure,” which
raised secondary and separate issues and was nonresponsive
to the Motion to Dismiss. (See ECF No. 18.) Yet despite
the Court's clear direction, the Plaintiff did not address
the Defendants’ arguments in her Response. (ECF No. 20.)
Instead, the Plaintiff stated “[m]y original Complaint was
clear in its statement and documentation as is the Amended
Complaint.” (Id. at 2.) She also rested on her previous
arguments that Navient failed to validate the debt and that
her correspondence to Navient had somehow discharged
her debt. 14 (Id. at 1.) The Plaintiff therefore still offers
no facts showing that Navient is a “debt collector,” even
after pleading, then amending, and then ignoring this Court's
specific direction that she do so. Even accepting all factual
allegations as true and viewing the Amended Complaint in
the light most favorable to the Plaintiff, she still fails to
state a claim. As a result, her Amended Complaint will be
dismissed. The Court will not grant the Plaintiff leave to
further amend, given that she had two (2) chances to do so,
and ignored the Court's directions the second time around.
The Court concludes therefore that she cannot do so, and
any such effort would therefore be futile. See Kline v. Elite
Med. Labs., Inc., No. 1:19-CV-1043, 2019 WL 6828590, at
*6 (M.D. Pa. Dec. 13, 2019) (“Because Plaintiff has already
amended his complaint ... and that amendment has failed to
cure [the] defect, I find that granting further leave to amend
would be both inequitable to require Defendant ... to seek
dismissal a third time, and futile because even after being
placed on notice of this issue Plaintiff has failed to allege
enough facts”).

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4

Steinkirchner v. Gordon, Not Reported in Fed. Supp. (2020)

4. Element (4)—FDCPA Violation
*6 The Plaintiff lists two causes of action against Navient
—15 U.S.C. §§ 1692e and 1692f. The first statute prohibits
a “debt collector” from using false, deceptive, or misleading
representations or means” in collecting a debt. 15 U.S.C. §
1692e. It also enumerates sixteen (16) potential violations. Id.
The latter statute prohibits unfair or unconscionable means
to collect or attempt to collect a debt and lists eight (8)
potential violations. Id. § 1692f. At most, the Plaintiff has
pleaded that she received more than two dozen phone calls
from Navient, which she regards as harassment. (ECF No.
12, at 34.) Even if the Plaintiff had shown Navient is a “debt
collector,” these facts would not state a claim. The Plaintiff
sometimes received two or three calls per day. (Id. at 10,
21, 23.) But all the calls she documented took place over a
span of five (5) months. (Id. at 4–32.); see Despot v. Allied
Interstate, Aw., No. CV 15-15, 2016 WL 4593756, at *6
(W.D. Pa. Sept. 2, 2016) (“Plaintiff has not pled any facts
from which the Court can rightly infer that the phone calls
were made with the intent to harass or annoy. The frequency
of the calls does not suggest such behavior because the calls
occurred over twenty days for an average frequency of less
than one call per day.”) The Plaintiff also received these calls

between 9:00a.m. and 6:30p.m. (ECF No. 12, at 4–32.); see
Lightfoot v. Healthcare Revenue Recovery Grp., LLC, No.
CIV 14-6791, 2015 WL 1103441, at *2 (D.N.J. Mar. 11, 2015)
(“there is ample case law requiring plaintiffs to plead that the
challenged communication(s) occurred after 9 p.m. or before
8 a.m.”). Thus, even accepting all the facts as true, the Plaintiff
has not provided enough detail to support her claims. The
Court would dismiss the Amended Complaint on this basis as
well.
V. CONCLUSION
For the reasons set out in this Opinion, the Defendants’
Motion to Dismiss (ECF No. 17) will be GRANTED. The
claims against Navient, Mr. Hurwitz, Mr. Gordon, and SRSY
will be DISMISSED with prejudice. Leave to amend those
claims is also denied as futile. See Phillips v. County of
Allegheny, 515 F.3d 224, 245 (3d Cir. 2008). The Plaintiff's
Motion for Reconsideration (ECF No. 27) is also DENIED.
An appropriate Order will follow.
All Citations
Not Reported in Fed. Supp., 2020 WL 549087

Footnotes
1

She claims twenty-eight violations. (ECF No. 16, at 1.)

2

The Plaintiff received a July 3, 2019 call from a Springville, Utah phone number at 10:13a.m., which appears
in two screenshots. (ECF No. 12, at 9, 28.)

3

Some voicemail screenshots consist of emails sent to the Plaintiff that include automated transcriptions of
the voicemails’ content. (See ECF No. 12, at 15–16, 19.) Unfortunately, the transcriptions are so poor that
they shed little light on the actual content. At most, one caller may have said she was calling the Plaintiff from
“Navient,” but it was transcribed as “Navia.” (Id. at 19.)

4

Exhibit B also includes the same screenshots discussed above and a photocopy of a certified mail receipt. (Id.
at 43–72.) Much of Exhibit B consists of high-sounding but completely irrelevant content regarding Federal
Reserve Notes, notice to agents and principals, and references to the “Republic of Pennsylvania.” (Id. at
37–39.)

5

Upon reviewing these documents, it is clear what the Plaintiff meant in her state court complaint when she
said, “[t]erms of ‘collection activities’ listed in affidavit and subsequent letters was violated.” The Plaintiff
believes that the terms in the documents she sent to Navient are somehow binding on Navient by dint of

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5

Steinkirchner v. Gordon, Not Reported in Fed. Supp. (2020)

its nonresponse to them. Those terms were then supposedly “violated” when Navient continued to call the
Plaintiff. As a result, the Plaintiff says that Navient must pay her $1,000 per call. (ECF No. 12, at 42.) That
“fee” multiplied by the alleged number of calls (28) equals the damages the Plaintiff seeks, less the filing
fee. Presumably, Navient never “paid for” those calls. Given the claims asserted, these documents are not
relevant to whether the Plaintiff sufficiently alleges a violation of the FDCPA. While the Court is not in the
business of issuing general advisory opinions, it can say with confidence that the Plaintiff's one-sided effort
to discharge her debts does not create a legal or factual basis for the claims she struggles to assert.
6

Navient provided documentation purportedly showing that it did respond to the Plaintiff's request for
verification of the debt, even though it argues it did not have to. (ECF Nos. 23, at 4–5; 23-1; 23-2; 23-3.)

7

Both lawyers for Navient are admitted to practice in the Commonwealth of Pennsylvania. Mr. Hurwitz is
admitted to practice in this Court. The Court also admitted Mr. Gordon to appear and practice in this Court
as counsel pro hac vice for Navient. (ECF Nos. 2, 3.)

8

The Plaintiff advanced several unconvincing legal theories in her Motion to Strike, which the Court denied.
(ECF No. 11.) For instance, the Plaintiff claimed that counsel could not practice law because the practice of
law “CAN NOT be licensed by any state/State,” rather the “practice of Law is AN OCCUPATION OF COMMON
RIGHT!” (Id. at 1.) Yet despite her belief about the common right to practice law, she demands evidence
of the attorneys’ licenses to practice law, lest they come before the court “in violation of the ‘Clean Hands
Doctrine.’ ” (Id.) The Plaintiff asserted several dubious legal theories throughout the stricken documents as
well. (ECF Nos. 13, 18, 24.) For example, she repeatedly claimed that counsel of record must provide their
“Registration Statements” under the Foreign Agents Registration Act of 1938 (“FARA”). (See, e.g., ECF No.
24, at 1.) FARA, of course, applies to agents of a foreign (as in “outside the United States”) principal and
aims to prevent clandestine dissemination of foreign political propaganda within the United States. See 22
U.S.C. § 611 et seq.; Viereck v. United States, 318 U.S. 236, 241 (1943). Having stricken or denied these
filings, the Court does not address them point-by-point. Instead, the Court refers to them to reflect what the
Court believes was the Plaintiff's reasoning for joining these parties.

9

The Court also ordered stricken the Plaintiff's repetitive further filings assailing the “foreign registration” (or
lack thereof) of these lawyers, ECF Nos. 13, 18, 24, 25, 26, and for the same reasons will deny the apparent
Motion for Reconsideration, ECF No. 27.

10

The exhibits attached to the Defendants’ Reply Brief—the promissory notes for the Plaintiff's federal student
loans and her detailed payment history—also confirm this. (ECF Nos. 23-1, 23-2, 23-3.)

11

The most pertinent exclusion appears to be: “the term [debt collector] does not include ... any person collecting
or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such
activity ... (iii) concerns a debt which was not in default at the time it was obtained by such person.” 15 U.S.C.
§ 1692a(6)(F).

12

Navient does not claim to be a creditor, but this argument is a bit more nuanced in this Circuit. See Barbato,
916 F.3d at 266 (holding a “creditor” could also be a “debt collector” under the FDCPA).

13

Caione v. Navient Corp., No. 16-cv-806, 2016 WL 4432687 (D.N.J. Aug. 18, 2016); Downridge v. Navient,
No. 16-cv-10327, 2016 WL 1594427 (E.D. Mich. Apr. 21, 2016); Spyer v. Navient, No. 15-cv-3814, 2016 WL
1046789 (D.N.J. Mar. 15, 2016); Haysbert v. Navient Sols., Inc., No. 15-4144, 2016 WL 890297 (C.D. Cal.
Mar. 8, 2016); Levy-Tatum v. Navient, No. 15-cv-3794, 2016 WL 75231 (E.D. Pa. Jan. 7, 2016).

14

For these reasons, the Defendants ask this Court to consider the arguments unopposed and to grant their
Motion. (ECF No. 23, at 2.) The Court declines to do so on this basis. See Jones v. Unemployment Comp.

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6

Steinkirchner v. Gordon, Not Reported in Fed. Supp. (2020)

Bd. of Review, 381 F. App'x 187, 189 (3d Cir. 2010) (expressing disfavor for a 12(b)(6) dismissal because
an argument is unopposed).

End of Document

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7

Stoute v. Navient, Not Reported in Fed. Supp. (2019)

2019 WL 13234780
Only the Westlaw citation is currently available.
United States District Court, D. Massachusetts.
Stephen STOUTE, Plaintiff,
v.
NAVIENT, Defendant.
Civil Action No. 19-11362-IT
|
Signed July 2, 2019
Attorneys and Law Firms
Stephen Stoute, Chelsea, MA, Pro Se.

MEMORANDUM AND ORDER
TALWANI, District Judge
*1 For the reasons set forth below, the court allows Plaintiff's
Application to Proceed Without Prepayment of Fees [#2] but
finds that Plaintiff's Complaint [#1] fails to state a claim upon
which relief may be granted. If Plaintiff wishes to proceed
with this action, he must file an amended complaint that sets
forth a plausible claim upon which relief may be granted.
I. Background
On June 19, 2019, Stephen Stoute (“Stoute”), a resident
of Chelsea, Massachusetts, filed a pro se Complaint
[#1] accompanied by an Application to Proceed Without
Prepayment of Fees [#2]. The sole defendant named in
the complaint is Navient, identified as a Pennsylvania
Corporation. Compl. Stoute alleges that on May 2, 2019,
Navient sought to collect payments for a student loan. Id. at ¶
III (statement of claim), p. 5. He contends that Navient failed
to respond to his May 22, 2019, letter and Notice of Default.
Id. Stoute states that he “suffered in housing for several years
[because] the alleged debt [was placed] on [Stoute's] credit
report.” Id. Stoute asserts that as a result of Navient's actions,
he “was embarrassed to show [his] credit report or have a
credit check performed.” Id. As best as can be gleaned from
the Complaint and attached exhibits, Stoute contends that
due to Navient's failure to respond to his correspondence,
and pursuant to UCC 3-505 and 1-202, Navient may not
pursue collection on the alleged debt. For relief, Stoute seeks
(1) “actual damages” of $48,245 plus interest on the alleged

debt; (2) removal of the alleged debt from Stoute's credit
score, including any late payments; (3) $80,000 for emotional
distress; and (4) $350,000 punitive damages. Compl., at ¶ IV
(relief).
II. Motion for Leave to Proceed In Forma Pauperis
After review of Stoute's motion for leave to proceed in forma
pauperis, the court concludes that Stoute is without assets to
pay the filing fee and ALLOWS the motion.
III. Screening of the Complaint
When a plaintiff seeks to file a complaint without prepayment
of the filing fee, summonses do not issue until the Court
reviews the complaint and determines that it satisfies the
substantive requirements of 28 U.S.C. § 1915. Section 1915
authorizes federal courts to dismiss a complaint sua sponte
if the claims therein lack an arguable basis in law or in fact,
fail to state a claim on which relief may be granted, or seek
monetary relief against a defendant who is immune from such
relief. See 28 U.S.C. § 1915(e)(2).
When examining the sufficiency of the pleadings, the court
considers whether the plaintiff has pled “enough facts to
state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
“In evaluating whether a complaint states a plausible claim,
[the court performs a] ‘two-step analysis.’ ” Saldivar v.
Racine, 818 F.3d 14, 18 (1st Cir. 2016) (quoting Cardigan
Mountain Sch. v. N.H. Ins. Co., 787 F.3d 82, 84 (1st Cir.
2015)). “First, the court must distinguish ‘the complaint's
factual allegations (which must be accepted as true) from its
conclusory legal allegations (which need not be credited).’
” Garcia-Catalan v. United States, 734 F.3d 100, 103
(1st Cir. 2013) (quoting Morales-Cruz v. Univ. of P.R.,
676 F.3d 220, 224 (1st Cir. 2012)). Second, the court
must determine whether the factual allegations present a
“reasonable inference that the defendant is liable for the
misconduct alleged.” Haley v. City of Boston, 657 F.3d 39, 46
(1st Cir. 2011).
*2 In conducting this review, the court liberally construes
Stoute's complaint because Stoute is proceeding pro se. See
Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

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1

Stoute v. Navient, Not Reported in Fed. Supp. (2019)

IV. Discussion
Here, the complaint fails to allege any facts that could support
a claim against the defendant. Stoute does not deny that
he incurred a debt. Rather, he contends that the debt has
been cancelled based upon Navient's failure to respond to
his correspondence. Stoute's reliance on two provisions 1 of
the Uniform Commercial Code do not support any claim for
relief. In light of the foregoing, this action will be dismissed
in 21 days unless Stoute files an amended complaint which
cures the pleading deficiencies and sets forth a plausible claim
upon which relief may be granted.
V. Order
Based upon the foregoing, it is it is hereby ORDERED that

1. The Application to Proceed Without Prepayment of Fees
[#2] is granted.
2. The Complaint [1] is subject to dismissal pursuant to 28
U.S.C. § 1915(e)(2). If Plaintiff wishes to proceed in this
matter, he must file an amended complaint curing the pleading
deficiencies and setting forth a plausible claim upon which
relief may be granted. Failure to comply with this directive
within twenty-one (21) days of the date of this Memorandum
and Order will result in dismissal of this action.
So ordered.
All Citations
Not Reported in Fed. Supp., 2019 WL 13234780

Footnotes
1

Section 1-202 concerns authentication of commercial paper and related documents. Section 3-505 provides
that certain evidence concerning dishonor of a negotiable instrument is admissible and creates a presumption
of dishonor.

End of Document

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2

McKay v. U.S. Bank, Not Reported in F.Supp.3d (2015)

2015 WL 5657110
Only the Westlaw citation is currently available.
United States District Court,
M.D. Alabama,
Northern Division.
Wayne McKAY and Shondra McKay, Plaintiffs,
v.
U.S. BANK, National Associaton, as
trustee for the Certificate Holders of the
LXS 2007–15N Trust Fund, Defendant.
No. 2:14–cv–872–TFM.
|
Signed Sept. 24, 2015.
Attorneys and Law Firms
John Scott Hooper, Hooper Law Firm, Montgomery, AL, for
Plaintiffs.
Gregory Carl Cook, Balch & Bingham LLP, Birmingham,
AL, John W. Naramore, Griffin Lane Knight, Balch &
Bingham LLP, Montgomery, AL, for Defendant.

MEMORANDUM OPINION AND ORDER
TERRY F. MOORER, United States Magistrate Judge.
I. Introduction
*1 Plaintiffs filed this declaratory judgment action against
Defendant U.S. Bank, National Association, as trustee for
the Certificate Holders of the LXZ 2007–15N Trust Fund
(“U.S.Bank”) asking this Court to declare “that Defendant is
not a party in interest as against Plaintiffs and or Plaintiff's
[sic] real property.” and seeking “a declaration to quiet title
in favor of Plaintiffs and against Defendants [sic].” (Doc. 1
p. 2). The defendant filed a Motion to Dismiss and Brief in
Support (Docs. 12 and 13) to which it attached as exhibits the
following: a copy of the Plaintiffs' Mortgage on the property
identified as 2722 Albemarle Road Montgomery, Alabama
36107 (Doc. 13–1) 1 ; a copy of the Adjustable Rate Note
for the property identified above (Doc. 13–2); and a copy
of the Assignment of Mortgage from MERS as nominee
for Bayrock Mortgage Corporation to Defendant U.S Bank.
(Doc. 13–3). The plaintiffs filed a Response to the Motion to
Dismiss (Doc. 17) to which they attached an affidavit from

Rosemary A. Parks, “the substitute of the holder of the power
of Attorney” for Plaintiffs. (Doc. 17–1).
II. Standard of Review
When considering the appropriate standard to apply on a
motion to dismiss where parties have filed documents outside
the complaint with the Court, the Eleventh Circuit has held
that

“the court may consider a document
attached to a motion to dismiss without
converting the motion into one for
summary judgment if the attached
document is (1) central to the plaintiff's
claim and (2) undisputed. In this
context, ‘undisputed’ means that the
authenticity of the document is not
challenged.”

D.L. Day, v. Taylor, 400 F.3d 1272, 1276 (11th Cir.2005)
citing Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir.2002).
Further, “[a] Rule 12(b)(6) motion tests the legal sufficiency
of the complaint....[I]n order to survive a motion to dismiss
for failure to state a claim, the plaintiff must allege ‘enough
facts to state a claim to relief that is plausible on its face.’ “
Coggins v. Abbett, 2008 WL 2476759 *4 citing Bell Atlantic
Corp., v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d
929) (2007).
The standard for a motion to dismiss under Rule 12(b)(6) was
explained in Twombly and refined in Ashcroft v. Iqbal, 556
U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) as
follows:

Two working principles underlie our
decision in Twombly. First, the tenet
that a court must accept as true all 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.
Rule 8 marks a notable and generous
departure from the hypertechnical,
code-pleading regime of a prior era,

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1

McKay v. U.S. Bank, Not Reported in F.Supp.3d (2015)

but it does not unlock the doors
of discovery for a plaintiff armed
with nothing more than conclusions.
Second, only a complaint that states a
plausible claim for relief will ... be a
context-specific task that requires the
reviewing court to draw on its judicial
experience and common sense. But
where the well-pleaded facts do not
permit the court to infer more than
the mere possibility of misconduct, the
complaint has alleged—but it has not
shown—that the pleader is entitled to
relief.

*2 Iqbal, 129 S.Ct. at 1949–50 (citations and internal edits
omitted).
The Twombly–Iqbal two-step analysis begins “by identifying
the allegations in the complaint that are not entitled to the
assumption of truth” because they are conclusory. Id., at 195;
Mamani v. Berzain, 2011 U.S.App. Lexis 17999, at *12,
2011 WL 3795468 (11th Cir. Aug. 29, 2011) (“Following the
Supreme Court's approach in Iqbal, we begin by identifying
conclusory allegations in the Complaint.”). After conclusory
statements are set aside, the Twombly–Iqbal analysis requires
the Court to assume the veracity of well-pleaded factual
allegations, and then to determine whether they “possess
enough heft to set forth ‘a plausible entitlement to relief.’
“ Mack v. City of High Springs, 486 Fed. App'x 3, 6
(11th Cir.2012) (quotation omitted.) “To survive a motion
to dismiss, a complaint need not contain ‘detailed factual
allegations' but instead the complaint must contain ‘only
enough facts to state a claim to relief that is plausible on
its face.’ “ Maddox v. Auburn Univ. Fed. Credit Union,
2010 U.S. Dist. Lexis 127043 at *4. Establishing facial
plausibility, however, requires more than stating facts that
establish mere possibility. Mamani,, 2011 U.S.App. Lexis
17999, at *22–*23, 2011 WL 3795468 (“The possibility
that -if even a possibility has been alleged effectively-these
defendants acted unlawfully is not enough for a plausible
claim.”). Plaintiff is required to “allege more by way of
factual content to nudge [her] claim ... across the line from
conceivable to plausible.” Iqbal, 129 S.Ct. at 1952 (internal
editing and citation omitted.)
III. Discussion

The claims in this case arise from U.S. Bank's status as
mortgagee of Plaintiffs' Mortgage. (Doc. 1 para. 2). On
December 12, 2006, Plaintiffs executed a Mortgage in favor
of MERS, as nominee for Bayrock Mortgage Corporation
(“Bayrock”) to secure a Note evidencing an $82,400.00 home
loan from Bayrock to Plaintiffs. The defendant has filed
with the Court a copy of the Mortgage, the Note and the
Assignment at issue in this case (Docs.13–1, 13–2, 13–3).
The Plaintiffs have not objected to the authenticity of these
documents; nor does the Court have any reason to doubt that
these documents are anything other than what they appear to
be on their face. Thus, the authenticity of these documents is
“undisputed”. Furthermore, these documents form the basis
of Plaintiffs' claim and as such are “central” to Plaintiffs'
claim. D.L. Day, 400 F.3d at 1276. Accordingly, the Court
concludes that these documents are properly before the Court
for its consideration on the Motion to Dismiss. Id.
Plaintiffs allegedly mailed U.S. Bank a “notarial
presentment” on July 17, 2014, which U.S. Bank allegedly
received on July 21, 2014. (Doc. 1 para. 4). This “notarial
presentment” purportedly asserted that U.S. Bank was not
the party of interest to enforce Plaintiff's Mortgage, and
apparently requested that U.S. Bank produce the original
Note and Mortgage. (Id. at para. 5). Plaintiffs also allegedly
mailed U.S. Bank a “notarial notice of Dishonor” on August 4,
2014, which was allegedly received by U.S. Bank on August
11, 2014. (Id. at para. 7). Plaintiffs alleged that U.S. Bank
has not responded to either the “notarial presentment” or
the “notarial notice of dishonor.” (Id. paras. 6, 8). Plaintiffs
claim that U.S. Bank is not in possession of the original Note
or original Mortgage—notwithstanding that U.S. Bank has
attached copies of the same to this motion. (Id. para. 9); see
(Doc. 13–1 and 13–2). Plaintiffs' Note and Mortgage are now
part of a securitized pool, of which U.S. Bank is Trustee.
(Doc. 1, paras.2, 10); see (Doc. 13–3). Plaintiffs now seek
a declaratory judgment (1) against U.S. Bank declaring that
U.S. Bank is not a party in interest as to Plaintiffs or Plaintiffs'
property, and (2) to quiet title in favor of Plaintiffs and against
U.S. Bank. (Id. at p. 2).
*3 It is undisputed that Plaintiffs have not made a mortgage
payment since June 2013, yet are still living in their house.
Defendant argues that the Plaintiffs' Complaint is due to
be dismissed for three reasons. First, Plaintiffs incorrectly
argue that the principles of presentment and dishonor of
negotiable instruments apply to this case. Second, Plaintiffs
incorrectly argue that U.S. Bank is not a party in interest
to this case. Third, Plaintiffs fail to adequately plead a

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2

McKay v. U.S. Bank, Not Reported in F.Supp.3d (2015)

quiet title claim. The Court will address each of these
arguments below. The Court notes that Plaintiffs' response
to Defendant's Motion to Dismiss is simply a restatement,
almost verbatim, of the claims in their complaint and offers no
factual or legal argument to rebut those arguments presented
by Defendant. (Doc. 17). The Court will address each of
Defendants arguments in turn below.
(1) Ala.Code §§ 7–3–501 to 503 do not apply to this
case.
Plaintiffs claim that U.S. Bank has “admitted that it is not
the party to enforce the note and mortgage on Plaintiffs'
property and [U.S. Bank] is not in possession of the original
note.” (Doc. 1, paras 4–8). This claim is not supported by any
relevant law or fact. First, Plaintiffs claim that they mailed
U.S. Bank a “notarial presentment alleging that [U.S. Bank]
was not the party of interest to enforce the mortgage and
that for [U.S. Bank] to produce the original mortgage and
note under Code of Alabama 7–3–501.” (Doc. 1, para.4). This
section defines “presentment” as follows:

Similarly, Plaintiffs' contentions related to dishonor are
inapplicable and without merit. (Doc. 1 paras. 6–8).
Ala.Code 7–3–502(a)(1)–(3) provides generally that a note is
dishonored if the note is not paid on the day of presentment (if
necessary) or on the day it becomes payable. For the concept
of dishonor to apply, the party obligated to pay it, must fail
to pay it. Thus, Plaintiffs, as the parties obligated to pay the
amount of the Note, are the only parties who could dishonor
the Note. Thus the doctrine of dishonor is inapplicable 2 to the
facts of this case and is not a basis for this Court to conclude
that U.S. Bank has “admitted” anything related to Plaintiffs'
Mortgage as Plaintiffs claim. (Doc. 1, paras 4–8).
(2) 12 U.S.C. § 2605(k)(1)(d) does not apply.
*4 Plaintiffs cite 12 U.S.C. § 2605(k)(1)(d) for the
proposition that U.S. Bank had “ten (10) business days to
rebut the Notarial Presentment of Plaintiffs or the same is
deemed admitted as presented. “(Doc. 1, para.5). This Section
states as follows:
(k) Servicer prohibitions

“a demand made by or on behalf
of a person entitled to enforce an
instrument (i) to pay the instrument
made to the drawee or party obliged
to pay the instrument, or in the case
of a note or accepted draft payable at
a bank, to the bank, or (ii) to accept
a draft made to the drawee.”

Ala.Code 7–3–501 (emphasis added). By the clear terms of
the statute, presentment is a power to be exercised “by or
on behalf of a person entitled to enforce the instrument,”
and against “a party obliged to pay the instrument”. Id.
Plaintiffs appear to claim that they are entitled to make a
demand for presentment, and that they are entitled to demand
payment from U.S. Bank. This is a backwards reading and
interpretation of the statute. As the parties indebted under
their home loan and obliged to pay the Note, Plaintiffs are
the parties to whom presentment could be made. There is no
allegation that U.S. Bank, as the party entitled to enforce the
Note, has made any demand for presentment on Plaintiffs.
Thus the doctrine of presentment is inapplicable to the facts of
this case and is not a basis for this Court to conclude that U.S.
Bank has “admitted” anything related to Plaintiffs' Mortgage
as Plaintiffs claim. (Doc. 1, paras 4–8).

(1) In general
A servicer of a federally related mortgage shall not—
(D) fail to respond within 10 business days to a request
from a borrower to provide the identity, address, and other
relevant contact information about the owner or assignee
of the loan.
By its clear terms, this statute applies to a “servicer of a
federally related mortgage”. Plaintiffs have not alleged that
U.S. Bank is the servicer of their Mortgage; nor do Plaintiffs
allege in their Complaint that they ever actually requested
identity and contact information about the owner or assignee
of the loan. Rather they assert that their “Notarial Presentment
alleg[ed] that [U.S. Bank] was not the party of interest to
enforce the mortgage and that for [U.S. Bank] to produce the
original mortgage or note.” (Doc. 1, para.4). The information
sought by Plaintiff is clearly not contemplated by this Code
section. Thus, this Code section is inapplicable to the facts of
this case and is not a basis for this Court to conclude that U.S.
Bank has “admitted” anything related to Plaintiffs' Mortgage
as Plaintiffs claim. (Doc. 1, paras.4–8).
(3) U.S. Bank is a party in interest as to Plaintiffs'
Mortgage

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3

McKay v. U.S. Bank, Not Reported in F.Supp.3d (2015)

Plaintiffs seek declaratory relief that U.S. Bank “is not a
party in interest as against Plaintiffs and or Plaintiff's [sic]
real property.” (Doc. 1, p. 2). Plaintiffs first theory to support
this argument is that U.S. Bank failed to comply with the
statutory requirements relating to presentment, dishonor, and
information requests. For the reasons stated in sections (1)
and (2) above, the Court concludes this theory has no merit.
Plaintiffs' second theory to support their request for
declaratory relief is based partly upon their claim that U.S.
Bank “must possess both [the Note and Mortgage] to be
the party in interest to enforce the mortgage.” (Doc. 1 para.
9). The law is clear; this “split the note” theory has been
consistently rejected by Alabama courts. See, e.g., Coleman
v. BAC Servicing, 104 So.3d 195, 205 (Ala.Civ.App.2012)
(holding that “Alabama law specifically contemplates that
there can be a separation” of the note and mortgage); See,
also, Orton v. Matthews, 2013 WL 5890167 * 4 (N.D. Ala.
Nov 1, 2013) (granting motion to dismiss on basis that the “
‘split the note’ theory has been roundly rejected by Alabama
courts”). Thus, the Court concludes that this theory does not
support the conclusion that U.S. Bank is not a party in interest
to Plaintiffs' mortgage, as Plaintiffs claim.
Further, the Court recognizes Plaintiffs acknowledge that U.S.
Bank is Trustee of the Trust (Doc. 1 para. 2). Under the law, if
a trustee possesses “customary powers to hold, manage, and
dispose of assets,” then that trustee is a real party in interest.
Navarro Sav. Ass'n v. Lee, 446 U.S. 458, 464, 100 S.Ct. 1779,
64 L.Ed.2d 425 (1980). Section Q of the Mortgage provides
as follows:
*5 “MERS (as nominee for Lender and Lender's
successors and assigns) has the right: to exercise any or all
of those interests, including, but not limited to, the right
to foreclose and sell the property ... [or] releasing and
cancelling this Security Instrument.”
(Doc. 13–1 p. 4). Additionally, the Mortgage provides that
“[t[he Note or a partial interest in the Note (together with
this Security Instrument) can be sold one or more times
without prior notice to [Plaintiffs].”
(Doc. 13–1 p. 16 para. 20). Also, the recorded U.S. Bank
assignment provides that the Mortgage was assigned to U.S.
Bank, as trustee. (Doc. 13–3). Thus, the facts are undisputed
that U.S. Bank is now the mortgagee of Plaintiffs' Mortgage,
and Plaintiffs agreed to terms in the Mortgage establishing
that the mortgagee has the power to exercise enforcement

rights granted in the Mortgage. Thus, the Court concludes that
Plaintiffs claim that U.S. Bank is not a real party in interest
fails; and thus no declaratory relief is due on this claim.
(4) Plaintiffs' Quiet Title claim is due to be dismissed.
Plaintiffs also seek “a declaration to quiet title in favor of
Plaintiffs and against Defendants.” (Doc. 1 p. 2). An action to
quiet title is the appropriate test to determine which among the
parties claiming right of title and possession holds superior
title. Gardner v. Key, 594 So.2d 43, 44 (Ala.1991). Plaintiffs
quiet title claim is based, in whole or in part, on the arguments
made pursuant to Alabama and federal law as discussed above
in sections (1), (2) and (3). To the extent that these arguments
serve as the basis for Plaintiffs' quiet title claim, the Court
concludes that the quiet title claim is due to be dismissed.
Furthermore, the Court concludes that Plaintiffs' quiet title
claim should be dismissed because it does not meet the
required pleading standards for a quiet title action. Under
Alabama law, any person “in peaceable possession of lands
[and] ... claiming to own the same, ... [whose] title thereto,
or any party thereof, is ... disputed ..., may commence an
action to settle the title to such land and to clear up all doubts
or disputes concerning the same.” Ala.Code § 6–6–540. A
plaintiff establishes a prima facie case to quiet title when “it
is shown that [the plaintiff] is in peaceable possession of the
land, either actual or constructive, at the time of the filing of
the bill and that there was no suit pending to test the validity of
the title. Woodland Grove Baptist Church, v. Woodland Grove
Cmty. Cemetery Ass'n, Inc., 947 So.2d 1031, 1036 (Ala.2006)
(citations omitted.)
Indeed, in order to meet the “plausibility” pleading standard
articulated by Twombly and Iqbal, a plaintiff's complaint must
include enough factual allegations to lift the stated claim out
of the realm of mere speculation. Twombly, 550 U.S. at 555.
Here, Plaintiffs fail to identify or attempt to connect factual
allegations to any of the elements of a quiet title cause of
action. Indeed, the only part of the Complaint that remotely
relates to such a claim is the factual allegation that Plaintiff's
“own a home”. (Doc. 1 para. 1). Thus, the Court concludes
that under the “plausibility” standard of Twombly and Iqbal,
Plaintiffs fail to adequately plead a cause of action to quiet
title.
IV. Conclusion
*6 Accordingly, the Court concludes that Defendant U.S.
Bank's Motion to Dismiss the Complaint (Doc. 12) is

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4

McKay v. U.S. Bank, Not Reported in F.Supp.3d (2015)

GRANTED and that this case is due to be dismissed with
prejudice. A separate Order will be issued.

All Citations
Not Reported in F.Supp.3d, 2015 WL 5657110

Footnotes
1

The Lender identified in the Mortgage is Bayrock Mortgage Corporation for whom Mortgage Electronic
Registration Systems, Inc. (“MERS”) acts as nominee. (Doc. 13–1 pp. 2–3).

2

Further, Ala.Code 7–3–503 which relates to notice of dishonor, is similarly inapplicable to this case.

End of Document

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5

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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3

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

Amato v. McGinty, Not Reported in Fed. Supp. (2017)

2017 WL 9487185
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Francis AMATO, et al., Plaintiffs,
v.
Judge Anthony MCGINTY, et al., Defendants.
1:17-CV-593 (MAD/ATB)
|
Signed 06/06/2017
Attorneys and Law Firms
Frances Amato, Marlboro, NY, pro se.
John Doe, pro se.
Adrienne Auchmoody, pro se.
Toni Jean Kulpinski, pro se.
Vladimir Kulpinski, pro se.
Michaela Kulpinski, pro se.
Michelle Arzola, pro se.
Jane Doe, pro se.
Adrienne J. Kerwin, Office of Attorney General, David B.
Cabaniss, Cabaniss Casey LLP, Albany, NY, for Defendants.

ORDER and REPORT-RECOMMENDATION
Hon. Andrew T. Baxter, U.S. Magistrate Judge
*1 The Clerk has sent to the Court a civil rights complaint
filed by pro se plaintiffs Francis Amato, her son “John
Doe,” Adirenne Auchmoody, Toni Jean Kulpinski, Vladimir
Kulpinski, Michaela Kulpinski, Michelle Arzola, and Ms.
Arzola's two children, who have also been referred to as Jane
and John Doe. (Complaint (“Compl.”) at 1). Plaintiffs have
paid the filing fee for this action. However, the court will
conduct an initial review of the complaint. 1 Plaintiff Amato
has also filed a motion to obtain an ECF Login and Password.
(Dkt. No. 10).
A complaint must allege “ ‘enough facts to state a claim
to relief that is plausible on its face.’ ” Preacely v. City of

New York, 622 Fed.Appx. 14, 15 (2d Cir. 2015) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955,
167 L.Ed.2d 929 (2007) ). 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.’ ” Id. (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)
). A case is “frivolous” when either the factual contentions
are “clearly baseless or when the claim is based upon “an
indisputably meritless legal theory.” ” Id. (quoting Livingston
v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998)
). A district court has inherent authority to dismiss a frivolous
action sua sponte “even when the plaintiff has paid the
required filing fee.” Id. (quoting Fitzgerald v. First E. Seventh
St. Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000) ). Finally,
a federal court has a continuing and independent obligation
to examine its subject matter jurisdiction sua sponte. Robbins
v. City of New York, 254 F.Supp.3d 434, 436 (E.D.N.Y. 2017)
(citing Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583,
119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) ). See also Forde v.
Hornblower New York, LLC, 243 F.Supp.3d 461, ––––, 2017
WL 1078585, at *2 (S.D.N.Y. 2017) (citations omitted).
I. Complaint
This civil rights action has been brought by plaintiffs
Frances Amato, her son (“CB”), Adrienne Auchmoody
(CB's grandmother), Toni Jean Kulpinski (CB's Aunt
and Godmother), Vladimir Kulpinski (CB's Uncle and
Godfather), Michaela Kulpinski (CB's cousin), and Michelle
Arzola and her two minor children (CB's sister, niece, and
nephew). (Compl. ¶¶ 1-7).
Plaintiffs appear to challenge the conduct of defendant Ulster
County Family Court Judge Anthony McGinty relative to
a custody proceeding involving CB. (Compl. ¶¶ 8, 16).
Plaintiffs have also named Attorney Andrew Gilday, who
plaintiffs state is a “Public Defender,” but appears to be the
assigned counsel for Patrick Bessmer—CB's father 2 —in the
custody proceeding. (Compl. ¶ 9). Patrick Bessmer and his
alleged “paramour,” Pamela Augustine are also named as
defendants. (Compl. ¶¶ 11, 12). Plaintiffs have also named
Amy Ingram, Esq., CB's assigned attorney for the custody
proceeding.
*2 Plaintiffs allege that defendant McGinty was “highly
abusive” to “all” plaintiffs; violated “constitutional” and
“ADA rights;” caused “extreme pain, suffering, and trauma
to “all” plaintiffs when he violated their constitutional

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1

Amato v. McGinty, Not Reported in Fed. Supp. (2017)

rights; endangered the welfare of “a child;” and “illegally
extended fictitious authority in CLEAR ABSENCE of subject
matter jurisdiction.” ” (Compl. ¶ 18(a)-18(e) ). Plaintiff
Amato then describes conduct that was allegedly directed at
her. 3 (Compl. ¶ 20). Plaintiff Amato alleges that defendant
McGinty denied access to “ ‘his court,’ ” denied plaintiff
Amato her “rights to proper serving process,” denied “any
evidence into the court for purpose of record,” and denied
“the serious risk and harm to [her] child- who is currently and
not by [her] consent in public governmental counseling for
high risk children.” (Compl. ¶ 20). Plaintiff Amato believes
that the state proceedings “remain plagued by retributions
[sic] for plaintiff's exercise of First Amendment rights to
free speech and petition government [sic] for redress of
grievances.” (Compl. ¶ 19).
Plaintiff Amato alleges that she is an “outspoken advocate,”
working along side the District Attorney of Ulster County
to compile evidence and to file numerous complaints against
defendant McGinty. (Id.) Plaintiff Amato states that she has
been interviewed by many local newspapers and television
stations regarding her concerns about Ulster County Family
Court and attorney Amy Ingram. Plaintiff claims she has
been “very outspoken” regarding the “countless children”
endangered by the “decisions of these judges and the
negligence of these public servants and child attorneys
mentioned [in the complaint.]” (Id.)
Plaintiff Amato lists a series of alleged violations which were
committed by defendant McGinty, together with defendants
Ingram and Gilday, resulting in the “kidnaping” and
“endangerment of a minor.” (Compl. ¶ 22). 4 Plaintiff Amato
states that these three defendants intentionally inflicted
emotional distress by removing her child, “altering the 9
year status quo from me and my entire family, violating our
due process....” (Compl. ¶ 22(a) ). These three defendants
also allegedly committed “Malicious Trespass,” “Abuse of
Process,” “Retaliation,” “False and Unlawful Arrest,” “Pre
decided trial with no evidence allowed, Obstructing Justice,”
“Child Endangerment,” and “Falsely placing mother and
child on a missing persons clearinghouse....” (Compl. ¶
22(b)-22(h) ).
The complaint contains three “Causes of Action,” which
contain additional facts and various citations to case law.
(Compl. ¶¶ 30-41). The first cause of action is “First
Amendment.” (Compl. ¶¶ 30-33). The second cause of action
is “Parental Impairment,” and the third cause of action is “Due
Process.” (Compl. ¶¶ 34-37, 38-41). Because of the way that

the complaint is written, rather than repeating all of the facts,
the court will discuss the additional facts as necessary to the
analysis of plaintiff's complaint.
II. Judicial Immunity
A. Legal Standards
With minor exceptions, judges are entitled to absolute
immunity for actions relating to the exercise of their judicial
functions. Mireles v. Waco, 502 U.S. 9, 9-10, 112 S.Ct. 286,
116 L.Ed.2d 9 (1991). Judicial immunity has been created
for the public interest in having judges who are “at liberty
to exercise their functions with independence and without
fear of consequences.” Huminski v. Corsones, 396 F.3d 53,
74 (2d Cir. 2004). Judicial immunity applies even when the
judge is accused of acting maliciously or corruptly. Imbler v.
Pachtman, 424 U.S. 409, 419 n.12, 96 S.Ct. 984, 47 L.Ed.2d
128 (1976) (citing Pierson v. Ray, 386 U.S. 547, 554, 87
S.Ct. 1213, 18 L.Ed.2d 288 (1967) ). Judicial immunity is
immunity from suit, not just immunity from the assessment
of damages. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct.
2806, 86 L.Ed.2d 411 (1985). The only two circumstances
in which judicial immunity does not apply is when he or she
takes action “outside” his or her judicial capacity and when
the judge takes action that, although judicial in nature, is taken
“in absence of jurisdiction.” Mireles, 502 U.S. at 11-12, 112
S.Ct. 286.
*3 Injunctive relief against judges is also barred “unless
a declaratory decree was violated or declaratory relief
was unavailable.” Bobrowski v. Yonkers Courthouse, 777
F.Supp.2d 692, 711 (S.D.N.Y. 2011) (citing inter alia Montero
v. Travis, 171 F.3d 757, 761 (2d Cir. 1999) (per curiam) ).
Although fairness and injustice may result on occasion,
a judicial officer must be free to act on his or her own
convictions in exercising the authority vested in him or
her, “without apprehension of personal consequences....” Id.
(citing inter alia Mireles, 502 U.S. at 10, 112 S.Ct. 286).
Whether an act by a judge is a “judicial one” relates to
the “nature of the act itself”—whether it is a function that
is necessarily performed by a judge. Id. (citing Stump v.
Sparkman, 435 U.S. 349, 362, 98 S.Ct. 1099, 55 L.Ed.2d
331 (1978) ). The parties must have dealt with the judge in
his or her “judicial capacity.” Id. The court acts in “absence
of all jurisdiction” when “it does not have any statutory or
constitutional power to adjudicate the case.” Id. (citing Gross
v. Rell, 585 F.3d 72, 84 (2d Cir. 2009) ). The judge will not be
deprived of absolute immunity if he or she takes action that is

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Amato v. McGinty, Not Reported in Fed. Supp. (2017)

merely “in excess” of his or her authority. Id. (citing Mireles,
502 U.S. at 12-13, 112 S.Ct. 286).
B. Application
Plaintiffs have named Ulster County Family Court
Judge Anthony McGinty as a defendant. Plaintiff states
that the “defendants” have violated “clearly established
laws.” (Compl. ¶ 31). Plaintiffs allege that defendant McGinty
is biased, discriminates against women who are victims of
domestic violence, and has retaliated against plaintiff Amato
because she has spoken out against him and other Family
Court judges, staff, and appointed counsel for her child.
Plaintiffs claim that the “federal funding law” rewards “states
and judicial agents,” based on the “number and size of
child support orders.” (Compl. ¶ 32). Based on this “fact,”
plaintiffs state that a “financial bias has impaired fair and
proper consideration of plaintiff's claims and defenses in the
challenged proceedings.” However, all of Judge McGinty's
alleged “biased” or “illegal” conduct was taken in connection
with his position as a Family Court judge presiding over
plaintiff Amato's custody case. Whether the judge's conduct
involved issuing orders based on “funding,” allegedly biased
decisions in favor of defendant Bessmer, or making decisions
that were not in the best interest of CB, these were all actions
taken in the course of a custody proceeding in his capacity
as a Family Court Judge. Thus, Judge McGinty is entitled to
judicial immunity.
Plaintiff attempts to argue that Judge McGinty acted “in
absence” of jurisdiction because he took over plaintiff's
custody case from another judge in violation of N.Y. Judiciary
Law § 21. (Compl. ¶ 18). Plaintiff Amato's argument is
misplaced. N.Y. Judiciary Law § 21 reads as follows:

A judge other than a judge of the
court of appeals, or of the appellate
division of the supreme court, shall not
decide or take part in the decision of
a question, which was argued orally in
the court, when he was not present and
sitting therein as a judge.

N.Y. Jud. Law § 21. This means that a trial-level judge shall
not decide factual issues that were tried before a different
judge. See People v. Hampton, 21 N.Y.3d 277, 284-85, 970

N.Y.S.2d 716, 992 N.E.2d 1059 (2013). This applies to
situations in which the new judge is called upon to make
rulings based on an evaluation of testimony that he or she did
not hear. Id. at 286, 970 N.Y.S.2d 716, 992 N.E.2d 1059. It
does not apply to motions involving pure issues of law. Id.
at 285, 970 N.Y.S.2d 716, 992 N.E.2d 1059. This also does
not mean that a judge cannot take over a custody case, or any
other action, after another judge has recused herself. See id.
Otherwise, no judge could ever be replaced after a case has
begun.
*4 Plaintiff does not allege that there were motions pending
that the previous judge did not address when Judge McGinty
took over the case. In fact, the complaint indicates that
Judge McGinty presided over the challenged proceedings
himself. (Compl. ¶ 22(f) ). Plaintiff Amato states that Judge
McGinty “pre-decided” the trial with no evidence allowed.
(Id.) Plaintiff Amato states that defendant McGinty “struck
from the record anything that was pertinent to the safety of
the child and mother....” (Id.) Finally, plaintiff alleges that
defendant McGinty and defendants Gilday and Ingram held a
“mock trial.” (Id.) Thus, the judge heard the factual issues in
question, and plaintiff has not alleged a violation of Judiciary
Law § 21.
In any event, even if the judge acted in violation of Judiciary
Law § 21, the appropriate remedy in state court would be
remand to the same judge for his or her own hearing of the
issue and a subsequent decision. Id. at 286, 970 N.Y.S.2d
716, 992 N.E.2d 1059. Although the state court has referred
to this statute as “jurisdictional,” it is only with respect to
the particular decision that the judge made without hearing
the evidence him or herself. Id. It does not deprive the
court of “jurisdiction” over custody cases. Judge McGinty
was still a family court judge with jurisdiction over custody
matters. At worst, if Judge McGinty decided a motion or
issue improperly, he would have been acting “in excess”
of jurisdiction, and he would still be entitled to judicial
immunity.
Plaintiffs challenge rulings by Judge McGinty and complain
of the way that he managed his courtroom, allegedly
“denying access to what the judge called ‘his court.’
” (Compl. ¶ 20). Judge McGinty allegedly placed CB in
“governmental counseling for high risk children” without
plaintiff Amato's consent, “denied evidence ... for purpose
of record; and “falsely” placed plaintiff Amato and CB on a
“missing persons clearinghouse.” ” (Compl. ¶¶ 20, 22(h) ).
Plaintiffs allege that on January 31, 2017, defendant McGinty

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“issued a directive to plaintiff [Amato] under penalty of
imprisonment .... sixty days in county jail on a civil offense
of a woman with no background at all because she wanted
to protect her child from further addiction and domestic
violence.” (Compl. ¶ 24). Plaintiff Amato alleges that the
court mocked her and endangered CB with its rulings. (Id.)
Plaintiff Amato also claims that a “stay” was granted by
the Appellate Division, which ordered plaintiff's immediate
release from the Ulster County Jail “false arrest and abuse of
power.” (Id.)
Notwithstanding plaintiffs' allegations that the Judge made
improper adverse rulings against plaintiff Amato during the
custody proceeding with malice or in retaliation for her
“exposing” abuses in Family Court, the judge was still
performing judicial functions and presiding over plaintiff's
custody action. As stated above, a judge does not lose his or
her judicial immunity because he or she is accused of acting
with malice or corruptly.
In Koziol v. King, the plaintiff sued a variety of judges in
connection with custody and support proceedings. Koziol v.
King, No. 6:14-CV-946, 2015 WL 2453481 (N.D.N.Y. May
22, 2015). In Koziol, then-Chief District Court Judge Gary
Sharpe dismissed claims against County Court Judge King
which related primarily to visitation and custody orders in
matters pending before him, based on absolute immunity. Id.
at *8. Plaintiff Koziol had also challenged that way that Judge
King “managed his courtroom.” Id.
In dismissing the claims against Judge King, Judge Sharpe
cited Davis v. Kushner, No. 1:14-CV-511, 2014 WL 5308142,
at *5 (N.D.N.Y. Oct. 16, 2014), in which the court held that a
family court judge was protected by judicial immunity where
the plaintiff alleged that the judge denied him custodial and
visitation rights because he was a Muslim, which violated
his civil rights. Thus, judicial immunity is not lost because
plaintiff alleges that the judge's decision was unconstitutional.
Plaintiffs in this case disagree with the judge's decisions.
(Compl. ¶ 29). Plaintiff Amato quotes the judge's order
awarding custody to defendant Bessmer, and states that
the judge did not properly consider CB's father's drug
dealing, drug abuse, arrests, domestic violence, and probation
violations. (Id.)
*5 Plaintiff Amato also states that defendant McGinty
abused his authority when he issued an order of protection
without “a trial or hearing,” and subjected plaintiff Amato
to supervised visitation, allegedly contrary to New York law.

(Compl. ¶ 35). Plaintiff discusses the proper procedure for
“imposing supervised visitation,” and faults the judge as well
as the other defendants for imposing such restrictions on
her. However, these decisions are also within the purview
of the Family Court Judge. Even if the judge was incorrect
in imposing the alleged restrictions to plaintiff Amato's
visitation, it would not deprive Judge McGinty of judicial
immunity.
Plaintiff Amato clearly has issues with the Family Court
system and claims that the system has been abused by Judge
McGinty. The complaint also contains two paragraphs which
refer to “financially based custody laws” and states that
“Plaintiff” seeks an order declaring Sections 236 and 240
of the Domestic Relations Law unconstitutional. (Compl. ¶¶
36). Judge McGinty's application of the laws that he has
jurisdiction to interpret does not deprive him of judicial
immunity, even if those laws were unconstitutional. The
constitutionality of state statutes is an issue separate from
judicial immunity. 5
Plaintiff Amato claims in her third cause of action that
she was denied the right to a “rational, orderly and timely
court proceeding before a neutral and detached magistrate
or judge.” (Compl. ¶ 39). This is clearly an action that is
judicial in nature, and Judge McGinty would be entitled
to judicial immunity for any such claim. The same is true
for plaintiff's state law claims of intentional and negligent
infliction of emotional distress. Thus, plaintiffs' 6 complaint
must be dismissed as against defendant McGinty.
*6 It has also been held that law guardians are entitled
to absolute quasi-judicial immunity for their actions in
representing children in Family Court. Davis v. Kushner, No.
1:14-CV-511, 2014 WL 5308142, at *5 (N.D.N.Y. Oct. 16,
2014) (citing inter alia Yapi v. Kondratyeva, 340 Fed.Appx.
683, 685 (2d Cir. 2009) (citations omitted) ); Holland v.
Morgenstern, No. 12-CV-4870, 2013 WL 2237550, at *4
(E.D.N.Y. May 20, 2013) (citations omitted); Lewittes v.
Lobis, No. 04 Civ. 155, 2004 WL 1854082, at *11 (S.D.N.Y.
Aug. 19, 2004) (citations omitted). In Lewittes, the court held
that the plaintiff would have other available remedies if the
child's attorney were derelict in performing his or her duties.
2004 WL 1854082, at *12. This holding is supported by New
York State court decisions holding that such guardians are
protected by quasi-judicial immunity. Id. at *11-12, 112 S.Ct.
286 (citing inter alia Bluntt v. O'Connor, 291 A.D.2d 106,
737 N.Y.S.2d 471 (4th Dep't), appeal denied, 98 N.Y.2d 605,
746 N.Y.S.2d 279, 773 N.E.2d 1017 (2002) ). Thus, defendant

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Ingram, as the attorney for CB would also be entitled to
absolute immunity, and the complaint must be dismissed as
against her.
III. State Action
A. Legal Standards
To state a claim under section 1983, the plaintiff must allege
both that the defendant has violated plaintiff's rights under
either the Constitution or laws of the United States and that
the defendant acted “under color of state law.” Rae v. City of
Suffolk, 693 F.Supp.2d 217, 223 (E.D.N.Y. 2010); 42 U.S.C.
§ 1983.
A person acts under color of state law when he or she acts
in his or her official capacity, “clothed with the authority of
state law,” or acts under “pretense” of law by purporting to
act with official power. Pleasure Island, Inc. v. City of New
York, No. 12 Civ. 4699, 2013 WL 2311837, at *5-6 (E.D.N.Y.
May 24, 2013) (quoting West v. Atkins, 487 U.S. 42, 49, 108
S.Ct. 2250, 101 L.Ed.2d 40 (1988) ). The requirement that the
defendant acted under “color of state law” is jurisdictional.
Lucas v. Riggi, No. 07-CV-6200, 2008 WL 4758706, at *2
(W.D.N.Y. Oct. 29, 2008) (citing Polk County v. Dodson, 454
U.S. 312, 315, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981) ).
Private conduct is simply beyond the reach of section 1983 “
‘no matter how discriminatory or wrongful that conduct may
be.’ ” Id. (quoting American Mfrs. Mut. Ins. Co. v. Sullivan,
526 U.S. 40, 49-50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999)
). A private party may act under color of state law if he or
she engages in conduct that constitutes willful participation
in joint activity with the state. Sybalski v. Indep. Grp. Home
Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008) (per
curiam). The nexus to the state must be so close as to be fairly
treated as that of the state itself. Tancredi v. Metro Life Ins.
Co., 316 F.3d 308, 312 (2d Cir. 2003) (citations omitted).
B. Application
Plaintiffs have sued Attorneys Andrew Gilday and Amy
Ingram 7 as well as Patrick Bessmer and his girlfriend,
Pamela Augustine. With respect to Attorneys Gilday and
Ingram, it is well-established that private attorneys do not
act under color of state law even if they are court-appointed
attorneys, performing their traditional function as counsel.
See Harmon v. New York County Dist. Attorney's Office, No.
13 Civ. 1711, 2014 WL 1044310, at *9 (S.D.N.Y. March
17, 2014) (citing inter alia Brown v. Legal Aid Soc'y, 367

Fed.Appx. 215, 216 (2d Cir. 2010); Rodriguez v. Weprin, 116
F.3d 62, 65-66 (2d Cir. 1997) ). See also Licari v. Voog, 374
Fed.Appx. 230, 231 (2d Cir. 2010) (private attorneys, even
if they are court-appointed, and/or associated with a Legal
Aid organization, do not act under color of state law when
representing their clients). According to plaintiffs, defendant
Gilday is the court-appointed attorney for defendant Bessmer,
and defendant Ingram was appointed by the court as the
attorney for CB.
*7 Defendants Bessmer (CB's father) and Augustine are
clearly private parties who do not act under color of state law
for purposes of section 1983. Although plaintiffs allege that
Bessmer and Augustine “conspired” with other defendants,
plaintiff states no facts to support these conclusory statements
that are dispersed throughout the complaint. (Compl. ¶¶ 11,
12). Conclusory allegations of conspiracy are insufficient to
state a claim under the civil rights laws. See Brown, 367
Fed.Appx. at 216 (color of state law may be established if the
individual conspired with a state actor, however, conclusory
allegations of conspiracy are insufficient). The only state
actor is Judge McGinty, and there is no indication, other
than the judge's decision in Bessmer's favor, how defendant
Bessmer or defendant Augustine would have “conspired”
with the judge sufficient to establish that they acted under
color of state law. 8
Plaintiffs allege that defendants Gilday, Ingram, and Judge
McGinty “co-conspired,” violated her rights and placed CB
in the custody of a dangerous criminal in violation of
“Statute.” (Compl. ¶ 22). “Merely resorting to the courts and
being on the winning side of a lawsuit does not rise to the
level of “conspiracy.” ” Dennis v. Sparks, 449 U.S. 24, 27,
101 S.Ct. 183, 66 L.Ed.2d 185 (1988). Defendant Gilday was
appointed to represent defendant Bessmer and had a duty to
represent his interests in the custody proceeding. Defendant
Ingram was appointed to protect the interests of CB during
the proceedings. Plaintiff faults Attorney Ingram for being
ill prepared, not returning plaintiff Amato's calls, and was
generally an ineffective advocate for CB. Plaintiff claims
that defendant Ingram also “fought vehemently” in favor of
custody for defendant Bessmer (Compl. ¶ 26). Plaintiff also
states that her “adversary,” the judge, and the appointed child
attorney “ganged up” on her. (Id.)
Defendant Ingram's alleged incompetence and the fact
that the judge ultimately ruled in defendant Bessmer's
favor does not indicate that the judge conspired with the
attorneys regarding his ruling or that defendants Bessmer and

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Augustine somehow conspired with the judge to obtain a
favorable result. Thus, the complaint may be dismissed in
its entirety as against defendants Attorney Gilday, Attorney
Ingram, Bessmer and Augustine.
IV. Minor Child Plaintiffs
A. Legal Standards
It is well-settled that a person who has not been admitted to
practice law may not represent anyone other than himself. 9
Lattanzio v. COMTA, 481 F.3d 137, 139-40 (2d Cir. 2007).
See also 28 U.S.C. § 1654.
B. Application
Plaintiff's have listed various “John” or “Jane” Doe minors
as plaintiffs, including CB, plaintiff Amato's child. The adult
plaintiffs have all signed the complaint and added their John
or Jane Doe children under their names. 10 (Compl. CM/ECF
pp. 27, 28, 32). However, while the adults may represent their
own interests, they may not represent the interests of their
children. See Cheung v. Youth Orchestra Found. of Buffalo,
906 F.2d 59, 61 (2d Cir. 1990) (a non-attorney parent must be
represented by counsel in bringing an action on behalf of his
or her child because the choice to appear pro se is not a true
choice for minors who, under state law, cannot determine their
own legal actions) (citing Fed. R. Civ. P. 17(b) ). The court in
Cheung further stated that it is not in the interests of minors
or incompetents that they be represented by non-attorneys.
Id. “Where they have claims that require adjudication, they
are entitled to trained legal assistance so their rights may
be fully protected.” Id. Thus, the minor children may not
be plaintiffs on their own because they are minors, 11 and
the adult plaintiffs may not represent their children. See also
Armatas v. Maroulleti, 484 Fed.Appx. 576 (2d Cir. 2012).
*8 The court would also point out that although all the adult
plaintiffs have signed the complaint, they did not include
their addresses. The only specific contact information is
for plaintiff Amato. The complaint contains a description
12

of the various plaintiffs and generally where they live,
but no specific addresses have been provided. (Compl. ¶¶
3-7). Plaintiff Amato may not act on behalf of any of the
other plaintiffs because she is not an attorney. This includes
accepting mail from the court and sending it to the other
plaintiffs. In any event, as discussed below, the adults, other
than the plaintiff have no standing to bring this action.

V. Standing
A. Legal Standards
A plaintiff bears the burden of establishing that he or she has
standing to bring an action in federal court. Amidax Trading
Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir. 2011).
“To establish constitutional standing, a plaintiff must show
(1) an injury in fact, (2) causation between the injury and
the offensive conduct, and (3) ‘a likelihood that the injury
will be redressed by a favorable decision.’ ” Heath v. Banks,
No. 16-3493-cv, slip. op. at 2 (2d Cir. June 5, 2017) (quoting
Susan B. Anthony List v. Driehous, ––– U.S. ––––, 134 S.Ct.
2334, 2341, 189 L.Ed.2d 246 (2014) ). In addition, there
is a “prudential standing rule” which states that, normally
litigants are barred from “asserting the rights or legal interests
of others in order to obtain relief from injury to themselves.”
Id. (quoting Rajamin v. Deutsche Bank Nat't Tr. Co., 757 F.3d
79, 86 (2014) ).
B. Application
In this case, plaintiff Amato has added other adult plaintiffs,
including her mother, CB's Aunt and Uncle, and CB's adult
cousin. None of these individuals are parties to the custody
action, and it is unclear how family that lives in Ohio,
(Compl. ¶ 7), would have standing to assert claims in this
case. According to the prudential standing rule, the additional
plaintiffs would be barred from asserting the legal interests
of either plaintiff Amato or CB even if the other plaintiffs
claimed that they are “injured” by any of the defendants'
actions. Thus, the complaint may also be dismissed for lack
of standing as against all plaintiffs other than plaintiff Amato
and CB.
VI. Rooker-Feldman, The Domestic Relations Exception,
and Younger v. Harris
A. The Domestic Relations Exception
1. Legal Standards
Under the domestic relations exception to the jurisdiction of
federal courts, cases involving divorce, alimony, and child
custody remain outside federal court jurisdiction. Marshal v.
Marshall, 547 U.S. 293, 308, 126 S.Ct. 1735, 164 L.Ed.2d
480 (2006). This exception is based upon a policy dictating
that the states have traditionally adjudicated marital and child
custody disputes, developing “competence and expertise in

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adjudicating such matters, which the federal courts lack.”
Thomas v. N.Y. City, 814 F.Supp. 1139, 1146 (E.D.N.Y. 1993).
In Bukowski v. Spinner, No. 17-CV-845, 2017 WL 1592578
(E.D.N.Y. Apr. 28, 2017), the District Court dismissed a
fee-paid action, sua sponte which raised very similar claims
to the case herein. In Bukowski, the plaintiff sought to
challenge rulings made in an underlying state court child
custody case, 13 naming the Judge, law guardian, and County
Attorney, among other defendants. Id. Plaintiff in Bukowski
criticized the Judge, stated that the law guardian was “not
troubled” by the judge's actions, criticized the caseworkers,
and claimed that she was subjected her to “unfounded”
charges. Id. at *1.

2. Application
*9 Plaintiffs in this case are making the same claims
and challenging similar actions by the state court judge
and the state court attorneys who appeared in plaintiff
Amato's custody case. The plaintiff in Bukowski also raised
“constitutional” issues, but the court recognized that the
allegations essentially challenged a state domestic relations
matter, and were therefore, outside the federal court's
jurisdiction. 2017 WL 1592578, at *3 (citations omitted).
A review of plaintiffs' request for relief in this case shows
that they are essentially challenging the state court's action.
In addition to substantial monetary damages, plaintiffs
seek “immediate return” of CB, together with a judgment
“declaring the orders, edicts, and processes described in
this Complaint unconstitutional with an order permanently
enjoining the enforcement of these orders.” (Compl. at CM/
ECF p. 26).
In order to return custody of CB to plaintiff, or to “enjoin”
the state court's orders, this court would have to re-determine
the judge's decision in the custody matter. This would also
involve resolving factual disputes regarding custody and
visitation. This court is divested of jurisdiction to make such
determinations. See also Ankenbrandt v. Richards, 504 U.S.
689, 703, 112 S.Ct. 2206, 119 L.Ed.2d 468 (1992); Hernstadt
v. Hernstadt, 373 F.2d 316, 317 (2d Cir. 1967) (it has been
uniformly held that federal courts do not adjudicate cases
involving the custody of minors and rights of visitation);
Sobel v. Prudenti, 25 F.Supp.3d 340, 353 (E.D.N.Y. 2014)
(the domestic relations exception “divests the federal courts of
power to issue divorce, alimony, and child custody decrees”).
Thus, the case may be dismissed based on the domestic
relations exception. To the extent that the custody case has

been concluded, the court will also discuss alternate bases for
dismissal.
B. Rooker-Feldman
1. Legal Standards
A dismissal pursuant to the Rooker Feldman 14 doctrine is
for lack of subject matter jurisdiction under Fed. R. Civ.
P. 12(b)(1). Remy v. New York State Dep't of Taxation and
Finance, 507 Fed.Appx. 16, 18 (2d Cir. 2013). This doctrine
divests the federal court of jurisdiction to consider actions that
seek to overturn state court judgments. Fernandez v. Turetsky,
No. 12-CV-4092, 2014 WL 5823116, at *3 (E.D.N.Y. Nov.
7, 2014) (citing Exxon Mobil Corp. v. Saudi Basic Indus.
Corp., 544 U.S. 280, 284 (2005) ). The doctrine also bars the
federal court from considering claims that are “inextricably
intertwined” with a prior state court determination. Id.
(quoting Johnson v. Smithsonian Inst., 189 F.3d 180, 185 (2d
Cir. 1999) ).
There are four requirements to the application of Rooker
Feldman: (1) the federal court plaintiff must have lost in state
court; (2) the plaintiff's injuries must have been caused by
the state court judgment; (3) the plaintiff must be asking the
federal court to review and reject the state court's judgment;
and (4) the judgment must have been rendered prior to filing
the federal court action. Bukowski, 2017 WL 1592578, at *3
(citing Hoblock v. Albany Cty. Bd. of Elections, 422 F.3d 77,
85 (2d Cir. 2005) ).

2. Application
As Judge D'Agostino stated in her June 2, 2017 decision,
under the Rooker Feldman doctrine, the district court also
does not have subject matter jurisdiction over claims that
effectively challenge state court judgments in general. (Dkt.
No. 9) (quoting Arena v. Dep't of Soc. Servs. of Nassau Cty.,
216 F.Supp.2d 146, 151 (E.D.N.Y. 2002) ). Although it is
unclear whether the plaintiff's custody case is finally decided
because plaintiff claims that the Judge scheduled a proceeding
in “October” notwithstanding that the witnesses were ready
to testify. 15 (Dkt. No. 8 at CM/ECF p.4). To the extent that
plaintiff's custody case is terminated, or to the extent that
plaintiff seeks review of decisions that the judge has already
issued, this complaint is barred by Rooker Feldman because
plaintiff is essentially challenging the state court's decision.

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Plaintiff lost in state court, her injuries are allegedly causes by
the state court judgment that she seeks to overturn, plaintiff
is asking this court to overturn Judge McGinty's rulings, and
it appears that custody was awarded to Mr. Bessmer prior to
plaintiff bringing this action. Thus, all the requirements for
Rooker Feldman have been met with respect to orders that
have already been issued by Judge McGinty.
C. Younger v. Harris 16
1. Legal Standards
*10 In Younger v. Harris, the Supreme Court held that
federal courts must abstain from exercising jurisdiction
over claims, seeking declaratory or injunctive relief, that
implicate ongoing state proceedings. 401 U.S. at 43-44. The
Supreme Court held that when there is a parallel criminal
proceeding in state court, the federal court must refrain from
enjoining the state prosecution. Id. Younger abstention has
been expanded to include state civil proceedings which are
akin to criminal prosecutions 17 and state court proceedings
which implicate a state's interest in enforcing the orders and
judgments of its courts. 18 Until 2013, the abstention analysis
involved determining (1) whether there was an ongoing
state proceeding; (2) whether an important state interest
was implicated; and (3) whether the plaintiff had an avenue
open for review of constitutional claims in state court. See
Middlesex County Ethics Comm. v. Garden State Bar Assn.,
457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982);
Parent v. New York, 485 Fed.Appx. 500, 503 (2d Cir. 2012)
(quoting Younger, supra; Liberty Mut. Ins. Co. v. Hurlbut, 585
F.3d 639, 647 (2d Cir. 1997) ).
In Sprint Communications, Inc. v. Jacobs, 571 U.S. 69, 134
S.Ct. 584, 588, 187 L.Ed.2d 505 (2013), the Court revisited
the analysis required to invoke abstention under Younger. In
Sprint, the Court rejected the three-part test in favor of a
“categorical approach.” Mir v. Shah, 569 Fed.Appx. 48, 51
(2d Cir. 2014) (citing Sprint, 134 S.Ct. at 591-94). Younger
abstention is triggered only by three categories of state
court proceedings: (1) state criminal prosecutions; (2) civil
proceedings that are akin to criminal proceedings; and (3)
civil proceedings that “implicate a State's interest in enforcing
the orders and judgments of its courts.” Id. (quoting Sprint,
134 S.Ct. at 588). In Sprint, the Court used state-initiated
custody proceedings in its analysis 19 as an example of civil
proceedings which are akin to criminal proceedings. 134 S.Ct.

at 592 (citing Moore v. Sims, 442 U.S. 415, 419–420, 99 S.Ct.
2371, 60 L.Ed.2d 994 (1979) (state-initiated proceeding to
gain custody of children allegedly abused by their parents) ).
See also Davis v. Baldwin, 594 Fed.Appx. 49, 51 (2d Cir.
2015) (same).
“If the federal court action falls into one of the three categories
listed above, the court may then consider additional factors,
such as “whether the state interest is vital and whether the
state proceeding affords an adequate opportunity to raise the
constitutional claims.” ” Torres v. Gaines, 130 F.Supp.3d
630, 636 (D. Conn. 2015). In Judge D'Agostino's decision,
she stated that “several courts in the Circuit have held that
Younger abstention applies in similar circumstances as this
case.” (Dkt. No. 9 at 5) (citing Graham v. N.Y. Ctr. for
Interpersonal Dev., No. 15-CV-459, 456 S.W.3d 545, 2015
WL 1120121, at *2-3 (E.D.N.Y. Mar. 12, 2015) (holding that
plaintiff's claim for injunctive relief was barred by Younger
when the plaintiff sought to challenge an ongoing family court
custody proceeding) ).
In Graham, the court stated that “ ‘there can be no doubt that
a custody dispute ... raises important state interests.’ ” 2015
WL 1120121, at *3, 456 S.W.3d 545 (quoting Reinhardt v.
Com. of Mass. Dep't of Social Servs., 715 F.Supp. 1253, 1256
(S.D.N.Y. 1989) ). In addition, the court held that plaintiff
was able to raise any potential constitutional claims in state
court. Id. Therefore, the court applied Younger to dismiss
plaintiff's claims for injunctive relief. The same is true in this
action to the extent that any of the issues upon which plaintiffs
base their action are still pending or are to be tried in the
future. 20 In fact, plaintiff Amato has cited a quote from a
letter, signed by Judge McGinty, telling plaintiff Amato that,
if she is unhappy with the court's decision, her recourse is an
appeal of that decision. 21 (Compl. ¶ 41).
VII. Opportunity to Amend
A. Legal Standards
*11 Generally, when the court dismisses a pro se complaint
sua sponte, the court should afford the plaintiff the
opportunity to amend at least once, however, leave to re-plead
may be denied where any amendment would be futile. Ruffolo
v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993).
Futility is present when the problem with 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) (citation
omitted).

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Amato v. McGinty, Not Reported in Fed. Supp. (2017)

B. Application
Because Judge McGinty and Attorney Ingram are entitled to
absolute immunity, it would be futile to allow the plaintiffs
to amend their complaint. No amendment will cure this
deficiency. Defendant Gilday does not act under color of state
law, and plaintiffs have made no sufficient allegations of a
conspiracy with Judge McGinty that would be sufficient to
establish state action by defendant Gilday. Thus, the court
also recommends that no amendment be allowed. Defendants
Bessmer and Augustine also do not act under color of
state law, and defendant Bessmer is simply plaintiff Amato's
adversary in the custody dispute. Defendant Augustine does
not appear to be involved in the litigation at all. Thus, no
amendment would change this court's recommendation with
respect to defendants Bessmer and Augustine.
The court notes that, as stated above, in two of the
paragraphs of her complaint, plaintiff appears to state that
New York Domestic Relations Law §§ 236 and 240 are
“unconstitutional,” but her reasoning for this allegations is
completely unclear. (Compl. ¶ 36). While plaintiff Amato
might in certain circumstances be entitled to challenge the
constitutionality of laws as they applied to her without
running afoul of the domestic relations exception, Younger,
or Rooker Feldman, the other plaintiff's do not have standing
to assert this claim because the laws have not been applied
to them, and plaintiff Amato has not named any defendants
that would be able to afford her the relief that she seeks with
respect to the sections of the law that she appears to challenge.
In addition, it is likely that even a proper challenge to the
statute would have to be brought first in state court. See Kahn,
supra. The court also points out that this claim does not appear
in plaintiff's “relief” section. Thus, the court will recommend
dismissing this claim without prejudice to filing an amended
complaint with only plaintiff Amato as the plaintiff, against
the proper defendant, at the proper time, and in the appropriate
forum. 22

VIII. Motion to Obtain ECF Login and Password
Because this court is recommending dismissal at this time,
the court will deny plaintiff's motion to obtain ECF privileges
without prejudice.
WHEREFORE, based on the findings above, it is
RECOMMENDED, that plaintiffs' complaint be dismissed
in its entirety WITH PREJUDICE as against defendants
McGinty, Ingram, Gilday, Bessmer, and Augustine, and it is
RECOMMENDED, that plaintiff Amato's complaint be
dismissed WITHOUT PREJUDICE only with respect to
any claim challenging the constitutionality of New York
Domestic Relations Law, and only against the proper
defendant for such challenge, at the proper time for such
challenge, and in the proper forum, as discussed above, and
it is
*12 ORDERED, that plaintiff Amato's motion to obtain
ECF privileges (Dkt. No. 10) is DENIED, and it is
ORDERED, that the Clerk serve a copy of this order on
plaintiffs to the extent that addresses are available.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the
parties have 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 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), 72.
All Citations
Not Reported in Fed. Supp., 2017 WL 9487185

Footnotes
1

The court notes that on June 2, 2017, plaintiff Amato filed a motion for a Temporary Restraining Order. (Dkt.
No. 8). District Judge D'Agostino denied the motion on the same day. (Dkt. No. 9).

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Amato v. McGinty, Not Reported in Fed. Supp. (2017)

2

Plaintiff Amato and defendant Patrick Bessmer were apparently not married.

3

The court notes that, although there are multiple plaintiffs, most of the defendants' alleged conduct was
directed at plaintiff Amato alone. Plaintiff Amato appears to allege that the defendants' conduct toward her
and CB injured the other defendants because of their family relationship to plaintiff Amato and CB. (See
Compl. ¶ 45) (stating that “no parties had a due process court hearing or trial, [and] were never served any
form of order”).

4

There appears to be no ¶ 21 in the complaint.

5

Although plaintiffs' complaint asks that two sections of New York Domestic Relations Law be declared
“unconstitutional,” the court must first note that, to the extent that the claim could be asserted at all, it could
only be asserted by plaintiff Amato because she is the only plaintiff who has been a party to the custody
proceedings and to whom the statute would have been applied. In addition, none of the individuals named as
defendants are proper defendants in such an action. Finally, in cases involving Domestic Relations issues, the
court must afford the state court appropriate deference in light of ongoing proceedings involving the plaintiff.
See Kahn v. Shaiswit, 414 F.Supp. 1064, 1068 (S.D.N.Y. 1976) (dismissing an action by plaintiff husband
in a divorce matter in which he challenged the constitutionality of New York Domestic Relations Law § 239).
The court in Kahn cited Mendez v. Heller, 530 F.2d 457 (2d Cir. 1976), in which Judge Oakes stated in a
concurring opinion, that “ ‘probate and domestic relations are matters which have long been recognized as
invoking, at least initially, interests which are predominantly of state concern.’ ” Id. at 1067 (quoting Mendez,
530 F.2d at 461). Thus, to the extent that plaintiff Amato may be attempting to challenge the constitutionality
of sections of the New York Domestic Relations Law, the claim may be dismissed.

6

Judicial immunity applies to shield Judge McGinty's liability as to all the plaintiff's, although plaintiff Amato is
generally the plaintiff to whom the complaint refers. Plaintiff Amato appears to attempt to include the other
plaintiffs by stating that they did not get “hearings,” they do not appear to have been parties to the custody
case. To the extent that any of the other “plaintiffs,” uncle, aunt, grandmother, sister, niece and nephew had
dealings with Judge McGinty, it was only in connection with the custody action, and the judge is entitled to
absolute immunity no matter who the plaintiff is.

7

As stated above, defendant Ingram is entitled to immunity. The lack of state action is an alternative basis
for dismissal as against this defendant.

8

Plaintiff alleges that she was verbally and physically threatened by defendants Bessmer and Augustine
outside the court, and that Judge McGinty only issued an order of protection for plaintiff Amato and not for
CB. (Compl. ¶ 29). The alleged attack by Bessmer and Augustine was certainly a “private action,” and the
judge's failure to issue a protective order for CB is not alleged to have been the result of any “conspiracy.”

9

An limited exception exists if an individual appears for an estate in which there are no other beneficiaries or
creditors. See Guest v. Hansen, 603 F.3d 15, 20 (2d Cir. 2010). The exception is not applicable to this case. An
exception has also been established for parents representing their children in applications for Supplemental
Security Income (“SSI”). Machadio v. Apfel, 276 F.3d 103, 106-07 (2d Cir. 2002). However, the interests of the
child and the parent were “intertwined,” and the Social Security regulations provided for such representation.

10

One plaintiff has attempted to sign the complaint herself as a “minor,” with her “guardian” signing the complaint
underneath the minor's name. (Compl. at CM/ECF p.32).

11

Fed. R. Civ. P. 17(e).

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Amato v. McGinty, Not Reported in Fed. Supp. (2017)

12

Most of the plaintiffs live in New York State, but Michelle Arzola and her two “Doe” “children” live in Ohio.
(Compl. ¶ 7).

13

One of the rulings granted sole custody to the father of the child. 2017 WL 1592578, at *1.

14

District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983) and
Rooker v. Fidelity Trust Co., 263 U.S. 413, 414 17, 44 S.Ct. 149, 68 L.Ed. 362 (1923).

15

Plaintiff Amato does allege that custody has already been awarded to defendant Bessmer.

16

401 U.S. 37 (1971).

17

Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975).

18

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987).

19

Sprint did not involve custody proceedings.

20

Younger does not apply to monetary damages, thus, the dismissal of plaintiff's damage claims would be
governed by the domestic relations exception and not Younger.

21

The letter is referring to a “decision” from 2016. It is unclear what that decision may have been or whether
it was the judge's actual custody decision.

22

Although plaintiff also mentions the Family Court Act in paragraph 36 of her complaint, she does not indicate
which sections of the Act she believes to be unconstitutional.

End of Document

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Amato v. McGinty, Not Reported in Fed. Supp. (2017)

2017 WL 4083575
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Frances AMATO; John Doe, progeny minor child;
Adrienne Auchmoody; Toni Jean Kulpinski;
Vladimir Kulpinski; Michaela Kulpinski; Michelle
Arzola; Jane Doe, minor child; and John Doe,
minor child of Michelle Arzola, Plaintiffs,
v.
Judge Anthony MCGINTY, individually and
as Ulster County Family Court Judge; Attorney
Andrew Gilday, individually and as a public
defender of New York; Amy Ingram, state attorney
for the child; Patrick V. Beesmer, individually;
and Pamela Augustine, individually, Defendants.
1:17-CV-00593 (MAD/ATB)
|
Signed 09/15/2017

See Dkt. No. 17 at 67; Dkt. No. 1 at 3. Plaintiffs
have also sued Plaintiff CB's father, Patrick Beesmer
(“Defendant Beesmer”); Plaintiff CB's assigned counsel
for the custody proceedings, Amy Ingram, (“Defendant
Ingram”); Defendant Beesmer's assigned counsel for the
custody proceedings, Attorney Andrew Gilday (“Defendant
Gilday”); and Defendant Beesmer's “paramour” as Plaintiffs
refer to her, Pamela Augustine (“Defendant Augustine”), for
their roles in the custody proceeding. See Dkt. No. 1 at 3-4.
Plaintiffs filed a motion for a temporary restraining order
on June 2, 2017, see Dkt. No. 8, which the Court denied
that day, see Dkt. No. 9. On June 6, 2017, Magistrate
Judge Baxter issued an Order and Report-Recommendation
recommending that Plaintiffs' complaint be dismissed in
its entirety with prejudice as to all named Defendants in
this action. See Dkt. No. 11 at 26. Plaintiffs submitted
objections to Magistrate Judge Baxter's Order and ReportRecommendation on June 19, 2017. See Dkt. No. 17.
Currently before the Court is Magistrate Judge Baxter's
Order and Report-Recommendation and Plaintiffs' objections
thereto.

Attorneys and Law Firms
FRANCES AMATO, P.O. Box 820, Marlboro, New York
12542, Plaintiff, pro se.

MEMORANDUM-DECISION AND ORDER
Mae A. D'Agostino, U.S. District Judge
I. INTRODUCTION
*1 On May 26, 2017, pro se Plaintiff Frances Amato
(“Plaintiff Amato”) commenced this action pursuant to
42 U.S.C. § 1983 (“Section 1983”). See Dkt. No. 1 at
1, 4. Plaintiff Amato is joined in this action with her
son (“Plaintiff CB”); her mother, Adrienne Auchmoody
(“Plaintiff Auchmoody”); Plaintiff CB's aunt, Toni Jean
Kulpinski (“Plaintiff TK”); Plaintiff CB's uncle, Vladimir
Kulpinski (“Plaintiff VK”); Plaintiff CB's cousin, Michaela
Kulpinski (“Plaintiff MK”); Plaintiff CB's sister, Michelle
Arzola (“Plaintiff Arzola”); Plaintiff CB's niece (“Plaintiff
Jane Doe”); and Plaintiff CB's nephew (“Plaintiff John
Doe”). See id. at 1-2. Plaintiffs have brought this action
against Ulster County Family Court Judge Anthony McGinty
(“Defendant McGinty”) for his role in a decision dictating
the custody of Plaintiff CB entered on October 24, 2016.

II. BACKGROUND
Plaintiff Amato and Defendant Beesmer are the parents of
Plaintiff CB and were involved in custody proceedings over
Plaintiff CB. See Dkt. No. 1 at 5. According to the complaint,
Defendant McGinty presided over the custody proceedings
after the originally assigned judge recused herself. See id. In
an order dated October 24, 2016, Defendant McGinty granted
Defendant Beesmer primary custody of Plaintiff CB. See Dkt.
No. 17 at 64-65, 67.
Upset with the outcome of the custody proceedings, Plaintiff
Amato commenced the instant action against Defendants for
their roles in the proceedings. 1 See Dkt. No. 1. Plaintiff
Amato claims that during the custody proceedings, Defendant
McGinty was “[h]ighly abusive” to “all” plaintiffs; violated
Plaintiffs' “constitutional” and “ADA rights;” induced
“[e]xtreme pain and suffering and trauma to all plaintiffs;”
“endanger[ed] the welfare of a child;” and “[i]llegally
extended fictious authority in CLEAR ABSENCE of subject
matter jurisdiction.” Id. at 6-7. Plaintiff Amato claims that
Defendant McGinty denied her access to “his court,” denied
her “rights to proper serving process,” and denied the
admission of “any evidence into the court for purpose of
record.” Id. at 7.

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Amato v. McGinty, Not Reported in Fed. Supp. (2017)

*2 Plaintiff Amato claims that Defendant McGinty “coconspired” with other Defendants in a “mock trial” to punish
Plaintiff Amato for her role as an “outspoken community
advocate” for human rights and family court reform. See id.
at 7, 9, 15. Plaintiff Amato alleges that Plaintiff CB's custody
proceedings were “plagued by retributions” for Plaintiff
Amato's public criticism of Defendant McGinty prior to the
custody proceedings. Id. at 7.
Plaintiff Amato alleges that Defendant McGinty, with
cooperation from Defendants Ingram and Gilday, committed
a number of violations resulting in the “kidnaping and
endangerment of a minor.” Id. at 8. Plaintiff Amato claims
that Defendants McGinty, Ingram and Gilday committed
“Malicious Trespass,” “Abuse of Process,” “Retaliation,”
“False [and] unlawful arrest,” and “Child Endangerment.”
See id. at 8-9. Plaintiff Amato alleges that Defendant McGinty
“[p]re decided [a] trial with no evidence allowed.” Id. at 8.
Plaintiffs allege “Causes of Action” for “First Amendment,”
“Parental Impairment,” and “Due Process.” Id. at 14-26.
Plaintiffs also allege additional state law claims for
“intentional and negligent emotional distress.” Id. at 24.
Plaintiffs request the “immediate return of the child,”
compensatory damages of $10,000,000 on each cause of
action, punitive damages, costs and attorneys' fees, and a
“[j]udgment declaring the orders, edicts and processes in
th[e] [c]omplaint unconstitutional[,] together with an order
permanently enjoining the enforcement of [the family court]
orders.” Id. at 26.

III. DISCUSSION
A. Standard of Review
“[I]n a pro se case, the court must view the submissions
by a more lenient standard than that accorded to ‘formal
pleadings drafted by lawyers.’ ” Govan v. Campbell, 289
F. Supp. 2d 289, 295 (N.D.N.Y. 2003) (quoting Haines v.
Kerner, 404 U.S. 519, 520 (1972)) (other citations omitted).
The Second Circuit has opined that the court is obligated
to “make reasonable allowances to protect pro se litigants”
from inadvertently forfeiting legal rights merely because they
lack a legal education. Id. (quoting Traguth v. Zuck, 710
F.2d 90, 95 (2d Cir. 1983)). However, “[t]he right of selfrepresentation does not exempt a party from compliance with
the relevant rules of procedural and substantive law.” Massie
v. Ikon Office Solutions, Inc., 381 F. Supp. 2d 91, 94 (N.D.N.Y.

2005) (quoting Clarke v. Bank of New York, 687 F. Supp. 863,
871 (S.D.N.Y. 1988)).
In reviewing a report and recommendation, a district court
“may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1)(C). When a party makes specific
objections to a magistrate judge's report, the district court
engages in de novo review of the issues raised in the
objections. See id.; Farid v. Bouey, 554 F. Supp. 2d 301,
307 (N.D.N.Y. 2008). When a party fails to make specific
objections, the court reviews the magistrate judge's report
for clear error. See Farid, 554 F. Supp. 2d at 307; see also
Gamble v. Barnhart, No. 02-CV-1126, 2004 WL 2725126, *1
(S.D.N.Y. Nov. 29, 2004).
Although a pro se litigant's objections should be accorded
leniency, “even 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, such that
no party be allowed a second bite at the apple by simply
relitigating a prior argument.” DiPilato v. 7-Eleven, Inc., 662
F. Supp. 2d 333, 340 (S.D.N.Y. 2009) (quotation omitted);
see also IndyMac Bank, F.S.B. v. Nat'l Settlement Agency,
Inc., No. 07 Civ. 6865, 2008 WL 4810043, *1 (S.D.N.Y.
Nov. 3, 2008) (“To the extent ... that the party makes only
conclusory or general arguments, or simply reiterates the
original arguments, the Court will review the Report strictly
for clear error.”).
*3 As mentioned, Plaintiffs have submitted objections to
the Order and Report-Recommendation issued by Magistrate
Judge Baxter. See Dkt. No. 17. The objections submitted
by Plaintiffs are 117 pages long. See id. Despite the correct
caption at the top of the document, the first 25 pages
of the document appear to be an appellate brief to the
State of New York Supreme Court, Appellate Division,
Third Department. 2 See id. at 1-25. The remaining 92
pages include a brief analysis of custody factors, Defendant
McGinty's custody decision, court transcripts, testimonial
statements, and documents outlining the history of the
custody proceedings. See id. at 25-117. There is no mention
of Magistrate Judge Baxter or the Order and ReportRecommendation in any of these documents. Accordingly,
Plaintiffs have failed to file specific objections. However,
regardless of whether the Court reviews the Order and
Report-Recommendation de novo or for clear error, Plaintiffs'
complaint is still subject to dismissal.

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Amato v. McGinty, Not Reported in Fed. Supp. (2017)

B. Judicial Immunity
Judges are afforded absolute immunity from suit for actions
related to the exercise of their judicial functions. Pierson v.
Ray, 386 U.S. 547, 553-54 (1967). Judges maintain judicial
immunity “even when [the] judge is accused of acting
maliciously and corruptly.” Id. at 554. Judicial immunity is
only defeated by “nonjudicial actions, i.e., actions not taken
in the judge's judicial capacity;” or “actions, though judicial
in nature, taken in the complete absence of all jurisdiction.”
Mireles v. Waco, 502 U.S. 9, 11 (1991) (citations omitted).
A judicial action is “a function normally performed by a
judge, and to the expectations of the parties.” Stump v.
Sparkman, 435 U.S. 349, 362 (1978). A judge's actions are in
“absence of all jurisdiction” when the court has no “statutory
or constitutional power to adjudicate the case.” Gross v. Rell,
585 F.3d 72, 84 (2d Cir. 2009) (citing United States v. Cotton,
535 U.S. 625, 630 (2002)). Judicial actions made in error or
“in excess of his authority” do not defeat judicial immunity.
Mireles, 502 U.S. at 12-13 (quoting Stump, 435 U.S. at 356).
Furthermore, a district court cannot grant injunctive relief
“against a judicial officer for an act or omission taken in such
officer's judicial capacity ... unless a declaratory decree was
violated or declaratory relief was unavailable.” Montero v.
Travis, 171 F.3d 757, 761 (2d Cir. 1999) (quotation omitted).
Plaintiffs have brought a number of allegations against
Defendant McGinty, including that he violated their
constitutional rights, co-conspired with the remaining
Defendants, endangered the welfare of Plaintiff CB, and
retaliated against Plaintiff Amato for being outspoken about
Defendant McGinty's purported “abuses and discrimination
against mothers and children.” Dkt. No. 1 at 5-9. Accepting
Plaintiff's claims as true, all claims occurred while Defendant
McGinty was working within his judicial capacity to
determine the proper custody for Plaintiff CB. Accordingly,
Defendant McGinty is entitled to judicial immunity. See
Mireles, 502 U.S. at 12-13. Magistrate Judge Baxter correctly
reasoned that any action Defendant McGinty committed with
malice or in retaliation of Plaintiff Amato's criticisms was
still performed within the judicial functions of a family court
judge presiding over a custody dispute. Magistrate Judge
Baxter also correctly concluded that Plaintiff's arguments
with respect to N.Y. Jud. Law § 21 are unavailing, as
Defendant McGinty did not violate that provsion, and, even
if he did, he would still be entitled to judicial immunity. See
generally Gross, 585 F.3d at 84.
Furthermore, law guardians are entitled to quasi-judicial
immunity for actions pertaining to their representation of a

child in family court. See Yapi v. Kondratyeva, 340 Fed.
Appx. 683, 685 (2d Cir. 2009) (citations omitted); Lewittes v.
Lobis, No. 04 Civ. 0155, 2004 WL 1854082, *11 (S.D.N.Y.
Aug. 19, 2004). Therefore, Magistrate Judge Baxter correctly
concluded that Defendant Ingram is entitled to quasi-judicial
immunity by virtue of her appointment as Plaintiff CB's law
guardian. See Dkt. No. 11 at 12-13.
C. State Action
*4 To state a claim under Section 1983, “a plaintiff must
allege (1) ‘that some person has deprived him of a federal
right,’ and (2) ‘that the person who has deprived him of that
right acted under color of state ... law.’ ” Velez v. Levy, 401
F.3d 75, 84 (2d Cir. 2005) (quoting Gomez v. Toledo, 446 U.S.
635, 640 (1980)). Moreover, “[b]ecause the United States
Constitution regulates only the Government, not private
parties, a litigant claiming that his constitutional rights have
been violated must first establish that the challenged conduct
constitutes ‘state action.’ ” Flagg v. Yonkers Sav. & Loan
Ass'n, 396 F.3d 178, 187 (2d Cir. 2005) (quoting United States
v. Int'l Bhd. of Teamsters, 941 F.2d 1292, 1295 (2d Cir. 1991)).
The conduct of a private actor may be considered state action
when the private actor “is a willful participant in joint activity
with the State or its agents.” Ciambriello v. Cty. of Nassau,
292 F.3d 307, 324 (2d Cir. 2002) (quoting Adickes v. S.H.
Kress & Co., 398 U.S. 144, 152 (1970)). However, “private
attorneys—even if the attorney was court appointed—are not
state actors for the purposes of § 1983 claims.” Licari v. Voog,
374 Fed. Appx. 230, 231 (2d Cir. 2010) (citing Rodriguez v.
Weprin, 116 F.3d 62, 65-66 (2d Cir. 1997)). The mere conduct
of a private party is excluded from the reach of Section 1983
“no matter how discriminatory or wrongful” that conduct may
be. American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50
(1999) (citation omitted).
Plaintiffs filed suit against Defendant Gilday for his role as
Defendant Beesmer's assigned counsel and against Defendant
Ingram for her role as Plaintiff CB's assigned attorney.
Defendants Gilday and Ingram, even if they were court
appointed, cannot be considered state actors. See Licari, 374
Fed. Appx. at 231. Furthermore, Defendants Beesmer and
Augustine are obvious private parties who are not state actors
under Section 1983. Defendants Beesmer and Augustine had
no connection to the state beyond their participation in the
custody proceedings.
While Plaintiffs have claimed that Defendants Beesmer and
Augustine “conspired” with the other Defendants to achieve

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Amato v. McGinty, Not Reported in Fed. Supp. (2017)

the custody outcome, as Magistrate Judge Baxter found, there
3

have been no facts to support these conclusory statements.
Conspiracy allegations that are wholly conclusory are
insufficient to state a claim under Section 1983. See Tapp
v. Champagne, 164 Fed. Appx. 106, 108 (2d Cir. 2006)
(citing Ciambriello, 292 F.3d at 325); see also Brito v.
Arthur, 403 Fed. Appx. 620, 621 (2d Cir. 2010) (“Complaints
containing only ‘conclusory, vague, or general allegations of a
conspiracy to deprive a person of constitutional rights’ will be
dismissed.”) (citing Ostrer v. Aronwald, 567 F.2d 551, 553 (2d
Cir. 1977)). Accordingly, this Court agrees with Magistrate
Judge Baxter that Defendants Gilday, Ingram, Beesmer,
and Augustine were not state actors, and the complaint is
dismissed as to each of these Defendants.
D. Minor Child Plaintiffs
An individual “who has not been admitted to the practice of
law may not represent anybody other than himself.” Guest
v. Hansen, 603 F.3d 15, 20 (2d Cir. 2010) (citing Lattanzio
v. COMTA, 481 F.3d 137, 139 (2d Cir. 2007)). Similarly,
“a non-attorney parent must be represented by counsel in
bringing an action on behalf of his or her child.” Cheung
v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61
(2d Cir. 1990). Three minor plaintiffs, Plaintiff CB, Plaintiff
John Doe, and Plaintiff Jane Doe, have been listed as pro se
litigants in this action. See Dkt. No. 1 at 1-2; Dkt. No. 11 at 16.
While the adult Plaintiffs may bring this lawsuit pro se, they
may not act as counsel for the minor children without being a
licensed attorney. See Cheung, 906 F.2d at 61. Therefore, this
Court agrees with Magistrate Judge Baxter's determination
that the adult Plaintiffs in this matter may not bring suit on
behalf of the minor Plaintiffs.
E. Standing
*5 A plaintiff who wishes to invoke federal jurisdiction
bears the burden of establishing that he or she has adequate
standing to bring the action. Lujan v. Defs. of Wildlife,
504 U.S. 555, 561 (1992) (citing FW/PBS, Inc. v. City of
Dallas, 493 U.S. 215, 231 (1990)) (other citation omitted).
To establish standing, “a plaintiff is constitutionally required
to have suffered (1) a concrete, particularized, and actual or
imminent injury-in-fact (2) that is traceable to defendant's
conduct and (3) likely to be redressed by a favorable
decision.” Woods v. Empire Health Choice, Inc., 574 F.3d
92, 96 (2d Cir. 2009) (citations omitted). Moreover, there is
a “prudential standing rule” which generally bars litigants
“from asserting the rights or legal interests of others in
order to obtain relief from injury to themselves.” Rajamin v.

Deutsche Bank Nat'l Trust Co., 757 F.3d 79, 86 (2d Cir. 2014)
(quotation omitted).
Here, despite multiple adult Plaintiffs filing suit against
Defendants, Plaintiff Amato is the only Plaintiff that was
a party to the custody proceedings regarding Plaintiff CB.
Plaintiffs Auchmoody, TK, VK, MK, and Arzola only
appear to be connected to the custody proceedings by their
relationship with Plaintiffs Amato and CB. See generally Dkt.
No. 1. Pursuant to the prudential standing rule, Plaintiffs
Auchmoody, TK, VK, MK, and Arzola cannot assert the
rights of Plaintiff Amato or Plaintiff CB. See Rajamin, 757
F.3d at 86. Therefore, all Plaintiffs other than Plaintiffs Amato
and CB lack standing, and the complaint with respect to these
Plaintiffs is dismissed.
F. Domestic Relations Exception
Magistrate Judge Baxter also noted that the Court lacks
subject matter jurisdiction over several of Plaintiffs' claims
pursuant to various legal doctrines. Due to the nature of
Plaintiffs' complaint, it is difficult to precisely determine
exactly which doctrines apply, but the Court will discuss
several doctrines which preclude the Court from exercising
subject matter jurisdiction over several of Plaintiffs' claims.
The domestic relations exception to federal jurisdiction
divests federal courts of jurisdiction in matters involving
divorce, alimony, and child custody. Marshall v. Marshall,
547 U.S. 293, 307-08 (2006) (citing Ankenbrandt v. Richards,
504 U.S. 689, 703-04 (1992)); see also Hernstadt v.
Hernstadt, 373 F.2d 316, 317 (2d Cir. 1967) (“[I]t has been
uniformly held that federal courts do not adjudicate cases
involving the custody of minors”). In Bukowski v. Spinner,
No. 17-CV-0845, 2017 WL 1592578, *1 (E.D.N.Y. Apr. 28,
2017), the Eastern District of New York dismissed a case with
similar allegations as those brought in this case. 4
Plaintiffs allege that the “orders and processes” of the
family court are unconstitutional; however, the crux of
their argument arises out of the alleged improper custody
determination by Defendant McGinty. See Dkt. No. 1 at
14-15, 21, 24, 26. Plaintiffs' alleged injuries stem directly
from the disputed family court custody decision. See id. at
5-9, 14-16, 21, 24. Additionally, Plaintiffs request that this
Court overturn the custody decision and permanently enjoin
the enforcement of family court decisions. See id. at 26.
Accordingly, to the extent that Plaintiffs request that this

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4

Amato v. McGinty, Not Reported in Fed. Supp. (2017)

Court overturn the custody determination, this Court lacks
jurisdiction to adjudicate such a case.
G. Rooker-Feldman Doctrine
“The Rooker-Feldman doctrine provides that the lower
federal courts lack subject matter jurisdiction over a case
if the exercise of jurisdiction over that case would result
in the reversal or modification of a state court judgment.”
Hachamovitch v. DeBuono, 159 F.3d 687, 693 (2d Cir.
1998) (citation omitted). “Such jurisdiction is lacking because
within the federal system, only the Supreme Court may
review a state court judgment.” Id.
*6 In Exxon Mobile Corp. v. Saudi Basic Industries Corp.,
544 U.S. 280 (2005), the Supreme Court held that the RookerFeldman doctrine “is confined to cases of the kind from
which the doctrine acquired its name: cases brought by
state-court losers complaining of injuries caused by statecourt judgments rendered before the district court proceeding
commenced and inviting district court review and rejection of
those judgments.” Exxon Mobile, 544 U.S. at 284. In light of
Exxon Mobile, the Second Circuit has held that “there are four
‘requirements’ that must be met before the Rooker-Feldman
doctrine applies.” Green v. Mattingly, 585 F.3d 97, 101 (2d
Cir. 2009) (citation omitted). The requirements are as follows:
First, the federal-court plaintiff must have lost in state
court. Second, the plaintiff must “complain[ ] of injuries
caused by [a] state-court judgment[.]” Third, the plaintiff
must “invite district court review and rejection of [that]
judgment[ ].” Fourth, the state-court judgment must have
been “rendered before the district court proceedings
commenced”—i.e., Rooker-Feldman has no application
to federal-court suits proceeding in parallel with ongoing
state-court litigation.
Id. (quoting Hoblock v. Albany County Bd. of Elections, 422
F.3d 77, 85 (2d Cir. 2005)).
Plaintiffs request that this Court overturn and enjoin the
unfavorable decisions of the family court. See Dkt. No. 1
at 26. Plaintiffs claim that their injuries resulted from the
custody determination made by Defendant McGinty prior
5

to the commencement of this action. See id. As such, to
the extent that Plaintiffs seek to challenge the family court
decision, this Court does not have jurisdiction to grant such
relief under Rooker-Feldman.

H. Younger Abstention 6
Younger abstention “requires federal courts to abstain from
exercising jurisdiction over claims that implicate ongoing
state proceedings.” Torres v. Gaines, 130 F. Supp. 3d 630,
635 (D. Conn. 2015) (citing Younger v. Harris, 401 U.S. 37,
43-44 (1971)). This doctrine “applies if the federal action
involves ongoing: (1) ‘state criminal prosecutions’; (2) ‘civil
proceedings that are akin to criminal prosecutions’; or (3)
civil proceedings that ‘implicate a State's interest in enforcing
the orders and judgments of its courts.’ ” Id. at 636 (quoting
Sprint Commc'ns, Inc. v. Jacobs, 134 S. Ct. 584, 588 (2013)).
“If the federal action falls into one of these three categories,
a [c]ourt may then consider the additional factors described
in Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass'n,
457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982).” 7 Id.
Since the Supreme Court's decision in Sprint, several courts
in this Circuit have held that Younger abstention applies in
similar circumstances as this case. See id.; see also Graham
v. N.Y. Ctr. for Interpersonal Dev., No. 15-CV-00459, 2015
WL 1120120, *2-3 (E.D.N.Y. Mar. 12, 2015) (holding that the
plaintiff's claims for injunctive relief were barred by Younger
where the plaintiff sought to challenge ongoing family court
proceedings regarding the loss of custody of her son).
Accordingly, as Magistrate Judge Baxter concluded, to the
extent that any issues in this litigation are still pending
in family court, this Court is barred from exercising such
jurisdiction pursuant to Younger.
I. Opportunity to Amend
*7 When a pro se complaint fails to state a cause of action,
the court generally “should not dismiss 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) (internal
quotation and citations omitted). Of course, an opportunity
to amend is not required where “[t]he problem with [the
plaintiff's] causes of action is substantive” such that “better
pleading will not cure it.” Id. (citation omitted).
Defendants McGinty and Ingram are entitled to immunity,
and, thus, better pleading would not be able to cure the defects
in Plaintiffs' allegations against them. Defendants Gilday,
Ingram, Beesmer, and Augustine were not state actors, and the
conspiracy allegations against them are entirely conclusory.
Therefore, better pleading would not cure the substantive
defects in the complaint. Accordingly, to the extent that

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5

Amato v. McGinty, Not Reported in Fed. Supp. (2017)

Plaintiffs allege constitutional and state law violations that
this Court has subject matter jurisdiction over, those claims
are dismissed without leave to amend with respect to all
named Defendants in this action.
However, Magistrate Judge Baxter recommended that, to
the extent Plaintiff Amato challenges the constitutionality
of the New York Domestic Relations Law §§ 236 and 240,
she may be able to do so in certain circumstances. See
Dkt. No. 11 at 25-26. The Court agrees, and Plaintiff's
complaint is dismissed without prejudice with respect to
a claim challenging the constitutionality of the New York
Domestic Relations Law, with only Plaintiff Amato as the
named plaintiff, and the complaint must be filed against the
proper defendant, at the proper time, and in the appropriate
forum, as set forth more fully in the Order and ReportRecommendation. See id. at 25-26.

IV. CONCLUSION
After carefully reviewing the record in this matter, Plaintiffs'
submissions and the applicable law, and for the above-stated
reasons, the Court hereby

with this Memorandum-Decision and Order; and the Court
further
ORDERS that Plaintiffs' complaint (Dkt. No. 1) is
DISMISSED as against Defendants McGinty, Ingram,
Gilday, Beesmer, and Augustine; and the Court further
ORDERS that Plaintiff Amato's complaint (Dkt. No. 1) is
DISMISSED without prejudice with respect to any claim
challenging the constitutionality of the New York Domestic
Relations Law, and only against the proper defendant for such
challenge, at the proper time for such challenge, and in the
proper forum, as discussed above; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in
Defendants' favor and close this case; and the court further
ORDERS that the Clerk of the Court shall serve a copy of
this Order on Plaintiff in accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2017 WL 4083575

ORDERS that Magistrate Judge Baxter's Order and ReportRecommendation (Dkt. No. 11) is ADOPTED consistent

Footnotes
1

While all Plaintiffs have submitted claims against Defendants, the narrative in the complaint and objections is
written in a singular voice referring to Plaintiff Amato as “I,” “me,” and “myself.” See generally Dkt. Nos. 1, 17.

2

The objections make several comments claiming that “this court” “held” or “ruled” and cited case law from
the Third Department. See, e.g., Dkt. No. 17 at 23.

3

Similarly, Plaintiffs' purported state law claims are entirely conclusory and do not come close to alleging facts
to support a valid cause of action. See Dkt. No. 1 at 24-26.

4

The court determined that despite the plaintiff “raising constitutional issues, the allegations stem from a state
domestic relations matter and are thus outside this Court's jurisdiction.” Bukowski, 2017 WL 1592578, at *3.

5

Plaintiffs filed this action on May 26, 2017 and Defendant McGinty rendered his custody determination on
October 24, 2016. See Dkt. No. 17 at 4-5, 67.

6

See Younger v. Harris, 401 U.S. 37 (1971).

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6

Amato v. McGinty, Not Reported in Fed. Supp. (2017)

7

The factors examine “whether the state interest is vital and whether the state proceeding affords an adequate
opportunity to raise the constitutional claims.” Torres, 130 F. Supp. 3d at 636

End of Document

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7

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

2020 WL 3965125
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Mohammed Sayeed MAHMOOD, Plaintiff,
v.
UNITED STATES GOVERNMENT, Defendant.
Civ. No. 1:20-CV-207 (MAD/DJS)
|
Signed 03/17/2020
Attorneys and Law Firms
MOHAMMED SAYEED MAHMOOD, Plaintiff Pro Se,
9-4-86/89, Flat #201, Khan Tower, Salarjung Colony,
Hyderabad, Telangana 500 008, India.

REPORT-RECOMMENDATION and ORDER
DANIEL J. STEWART, United States Magistrate Judge
*1 The Clerk has sent for review a civil Complaint filed
by Plaintiff. Dkt. No. 1, Compl. Plaintiff has not paid the
filing fee, but instead submitted a Motion to Proceed in forma
pauperis (“IFP”). Dkt. No. 2, IFP App. By separate Order,
this Court granted Plaintiff's Application to Proceed IFP. Also
pending are Motions for the Appointment of Counsel an to
Obtain and ECF Login. Dkt. Nos. 3 & 5. Now, in accordance
with 28 U.S.C. § 1915(e), the Court will sua sponte review
the sufficiency of the Complaint.

I. DISCUSSION

In reviewing a pro se complaint, this Court has a duty to
show liberality toward pro se litigants, see Nance v. Kelly,
912 F.2d 605, 606 (2d Cir. 1990), and should exercise
“extreme caution ... in ordering sua sponte dismissal of a
pro se complaint before the adverse party has been served
and both parties (but particularly the plaintiff) have had an
opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37,
41 (2d Cir. 1983) (emphasis in original) (citations omitted).
Therefore, a court should not dismiss a complaint if the
plaintiff has stated “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). “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.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550
U.S. at 556). Although the court should construe the factual
allegations in the light most favorable to the plaintiff, “the
tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.”
Id. “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id.
(citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555). “[W]here
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
alleged – but it has not ‘show[n]’–‘that the pleader is entitled
to relief.’ ” Id. at 679 (quoting FED. R. CIV. P. 8(a)(2)).
A pleading that only “tenders naked assertions devoid of
further factual enhancement” will not suffice. Id. at 678-79
(citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555, for the
proposition that Federal Rule of Civil Procedure 8 “demands
more than an unadorned, the-defendant-unlawfully-harmedme accusation”). Allegations that “are so vague as to fail
to give the defendants adequate notice of the claims against
them” are subject to dismissal. Sheehy v. Brown, 335 Fed.
Appx. 102, 104 (2d Cir. 2009).

A. Pleading Requirements
Section 1915(e) of Title 28 of the United States Code directs
that, when a plaintiff seeks to proceed in forma pauperis,
“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).
Thus, it is a court's responsibility to determine that a plaintiff
may properly maintain his complaint before permitting him
to proceed further with his action.

B. Allegations Contained in Plaintiff's Complaint
*2 Plaintiff characterizes this action as one against the
United States Government for personal injury, assault and
battery, defamation, general damages, intentional infliction
of mental distress and physical torture, and wage loss.
Compl. at pp. 6-7. In summary, Plaintiff alleges a pattern of
“unethical, unlawful, and inhumane Electronic Surveillance,
Mind-Control, and Cyber-Stalking activities” by unnamed
officials of the United States Government. Id. at p. 7. He

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1

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

makes slightly more specific allegations including alleged
physical stalking and monitoring, as well as, phone and cyber
stalking of Plaintiff, id. at p. 3, allegations that Defendant
forced Plaintiff “to travel to United States through cyber
stalking and mind control techniques,” id. at p. 4, and forced
Plaintiff to incur debt, make fraudulent money transfers, and
make fraudulent benefits applications. Id. at p. 5.

C. Review under Section 1915(e)
“Ordinarily, a court should not dismiss 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.’ ” Bruce v. Tompkins Cty.
Dep't of Soc. Servs. ex rel. Kephart, 2015 WL 151029, at *4
(N.D.N.Y. Jan. 7, 2015) (quoting Branum v. Clark, 927 F.2d
698, 704-05 (2d Cir. 1991)). Where, however, the grounds for
dismissal offer no basis for curing the defects in the pleading,
leave to amend would be futile. Kunz v. Brazill, 2015 WL
792096, at *3 (N.D.N.Y. Feb. 25, 2015). When the basis
for dismissal is a defendant's entitlement to immunity, for
example, the pleading defects are “substantive rather than
formal and [ ] leave to amend would be futile.” Jackson v.
Pfau, 523 Fed. Appx. 736, 737 (2d Cir. 2013).
Plaintiff's claims against the United States Government are
subject to dismissal on the grounds of sovereign immunity.
“Well-established principles of sovereign immunity bar suit
against the United States unless it consents to be sued,
the existence of such consent being a prerequisite for
jurisdiction.” Pietrangelo v. U.S. Dist. Court Vermont, 223
Fed. Appx. 20, 21 (2d Cir. 2007) (citing United States v.
Mitchell, 463 U.S. 206, 212 (1983)). “In any suit in which
the United States is a defendant, there must be a cause of
action, subject matter jurisdiction, and a waiver of sovereign
immunity. The waiver of sovereign immunity is a prerequisite
to subject-matter jurisdiction.” Presidential Gardens Assocs.
v. U.S. ex rel. Sec'y of Hous. & Urban Dev., 175 F.3d 132,
139 (2d Cir. 1999). “Consent to suit ‘must be unequivocally
expressed in statutory text, and cannot simply be implied.’ ”
Pietrangelo v. U.S. Dist. Court Vermont, 223 Fed. Appx. at
21 (quoting Adeleke v. United States, 355 F.3d 144, 150 (2d
Cir. 2004)).
Plaintiff makes no contention here that any waiver of this
immunity applies to the allegations set forth in the Complaint.
While the Federal Tort Claims Act (“FTCA”) provides a
limited immunity from suit for tort claims, it has strict

exhaustion requirements. Hill v. United States, 2019 WL
5694016, at *5 (E.D.N.Y. Aug. 6, 2019). “The burden is on
the plaintiff to both plead and prove compliance with the
[FTCA's] statutory requirements.” In re Agent Orange Prod.
Liab. Litig., 818 F.2d 210, 214 (2d Cir. 1987). The Complaint
neither mentions the FTCA nor alleges compliance with it.
“Accordingly, even if a pro se plaintiff's complaint can be
liberally construed to state a claim under the FTCA ... the
court does not have subject matter jurisdiction over the FTCA
claim if [the] plaintiff has neither pleaded that he filed an
administrative claim within two years of the incident giving
rise to the action, nor that he exhausted an administrative tort
claim prior to initiating the instant action.” Moore v. Samuel
S. Stratton Veterans Admin. Hosp., 2019 WL 251725, at *3
(N.D.N.Y. Jan. 17, 2019) (internal quotations omitted). As
such, his claims against the United States should be dismissed
with prejudice.

D. Other Pending Motions
*3 In light of the recommended disposition of this case,
Plaintiff's other pending Motions are denied.
“In deciding whether to appoint counsel, a court should first
determine whether the indigent's position seems likely to be
of substance.” Velasquez v. O'Keefe, 899 F. Supp. 972, 974
(N.D.N.Y. 1995). Here, given the Defendant's immunity from
suit, Plaintiff cannot make this threshold showing of merit and
the Motion for Appointment of Counsel is denied.
“Because this court is recommending dismissal at this
time, the court will deny [P]laintiff's motion to obtain
ECF privileges without prejudice.” Amato v. McGinty, 2017
WL 9487185, at *11 (N.D.N.Y. June 6, 2017), report and
recommendation adopted, 2017 WL 4083575 (N.D.N.Y.
Sept. 15, 2017).

II. CONCLUSION
ACCORDINGLY, it is hereby
RECOMMENDED, that Plaintiff's
DISMISSED with prejudice; and it is

Complaint

be

ORDERED, that Plaintiff's Motion for Appointment of
Counsel is DENIED; and it is further

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2

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

ORDERED, that Plaintiff's Motion to Obtain an ECF Login
and Password is DENIED; and it is further
ORDERED, that the Clerk of the Court serve a copy of this
Report-Recommendation and Order, by certified mail, return
receipt requested, upon Plaintiff.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen
(14) 1 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).
All Citations
Not Reported in Fed. Supp., 2020 WL 3965125

Footnotes
1

If you are proceeding pro se and are served with this Order by mail, three additional days will be added to
the fourteen-day period, meaning that you have seventeen days from the date the 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).

End of Document

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3

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

2020 WL 1808206
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Mohammed Sayeed MAHMOOD, Plaintiff,
v.
UNITED STATES of America, Defendant.
1:20-CV-207 (MAD/DJS)
|
Signed 04/09/2020
Attorneys and Law Firms
MOHAMMED SAYEED MAHMOOD, 9-4-86/89, Flat
#201, Khan Tower, Salarjung Colony, Hyderabad, Telangana
500 008, India, Plaintiff pro se.

ORDER
Mae A. D'Agostino, U.S. District Judge:
*1 Plaintiff commenced this action on February 25, 2020,
against the United States of America asserting the following
claims: (1) personal injury; (2) assault and battery; (3)
defamation; (4) general damages; (5) intentional infliction
of mental distress and physical torture; and (6) wage loss.
See Dkt. No. 1. In a Report-Recommendation and Order
dated March 17, 2020, Magistrate Judge Stewart reviewed
the sufficiency of the complaint and recommended that
the Court dismiss this action with prejudice. See Dkt.
No. 7. Specifically, Magistrate Judge Stewart found that
Plaintiff's claims, which are brought against the United States
of America, are subject to dismissal on the grounds of
sovereign immunity. See id. at 4-6. Neither party has objected
to Magistrate Judge Stewart's Report-Recommendation and
Order.
Section 1915(e)(2)(B) directs that, when a plaintiff seeks to
proceed IFP, “(2) ... the court shall dismiss the case at any time
if the court determines that - ... (B) 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)(B).
“[I]n a pro se case, the court must view the submissions by a
more lenient standard than that accorded to ‘formal pleadings
drafted by lawyers.’ ” Govan v. Campbell, 289 F. Supp. 2d
289, 295 (N.D.N.Y. 2003) (quoting Haines v. Kerner, 404

U.S. 519, 520 (1972)). The Second Circuit has held that
the court is obligated to “make reasonable allowances to
protect pro se litigants” from inadvertently forfeiting legal
rights merely because they lack a legal education. Id. (quoting
Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
When a party files specific objections to a magistrate
judge's report-recommendation, the district court makes a
“de novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1). However, when
a party declines to file objections or files “[g]eneral or
conclusory objections or objections which merely recite
the same arguments [presented] to the magistrate judge,”
the court reviews those recommendations for clear error.
O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1
(N.D.N.Y. Mar. 16, 2011) (citations and footnote omitted);
see also McAllan v. Von Essen, 517 F. Supp. 2d 672, 679
(S.D.N.Y. 2007). After the appropriate review, “the court may
accept, reject or modify, in whole or in part, the findings or
recommendations made by the magistrate [judge].” 28 U.S.C.
§ 636(b)(1).
In the present matter, the Court finds that Magistrate Judge
Stewart correctly determined that Plaintiff's complaint should
be dismissed with prejudice. “Well-established principles of
sovereign immunity bar suit against the United States unless
it consents to be sued, the existence of such consent being a
prerequisite for jurisdiction.” Pietrangelo v. U.S. Dist. Court
Vermont, 223 Fed. Appx. 20, 21 (2d Cir. 2007) (citing United
States v. Mitchell, 463 U.S. 206, 212 (1983)). “The waiver
of sovereign immunity is a prerequisite to subject-matter
jurisdiction.” Presidential Gardens Assocs. v. U.S. ex rel.
Sec'y of Hous. & Urban Dev., 175 F.3d 132, 139 (2d Cir.
1999).
*2 As Magistrate Judge Stewart correctly determined,
Plaintiff makes no contention that any waiver of immunity
applies to the allegations set forth in his complaint. Moreover,
although the Federal Tort Claims Act (“FTCA”) provides
a limited waiver of sovereign immunity from suit for tort
claims against the United States, it has strict exhaustion
requirements and the burden is on the plaintiff to both plead
and prove compliance with the FTCA's statutory exhaustion
requirements. See In re Agent Orange Prod. Liab. Litig.,
818 F.2d 210, 214 (2d Cir. 1987). Plaintiff's complaint
neither mentions the FTCA nor alleges compliance with its
exhaustion requirements. See Pope v. Geo Grp., No. 18CV-6900, 2019 WL 79426, *3 (E.D.N.Y. Jan. 2, 2019)

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1

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

(“Accordingly, even if a pro se ‘plaintiff's complaint can
be liberally construed to state a claim under the FTCA ...
the court does not have subject matter jurisdiction over’
the FTCA claim if [the] ‘plaintiff has neither pleaded that
he filed an administrative claim within two years of the
incident giving rise to the action, nor that he exhausted an
administrative tort claim prior to initiating the instant action’
”) (quoting Diaz v. MDC Detention Ctr., No. 17-CV-3768,
2018 WL 472810, *2 (E.D.N.Y. Jan. 17, 2018)). As such, the

ORDERS that Plaintiff's complaint is DISMISSED without
prejudice; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in
Defendant's favor and close this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of
this Order on Plaintiff in accordance with the Local Rules.

Court dismisses Plaintiff's complaint. 1
IT IS SO ORDERED.

Accordingly, the Court hereby

All Citations

ORDERS that Magistrate Judge Stewart's ReportRecommendation and Order (Dkt. No. 7) is ADOPTED; and
the Court further

Not Reported in Fed. Supp., 2020 WL 1808206

Footnotes
1

Since Plaintiff's complaint can be liberally construed as attempting to bring a claim under the FTCA and
because it is unclear from the complaint whether Plaintiff may still timely exhaust his administrative remedies,
the dismissal will be without prejudice. See Green v. Fed. Bureau of Prisons, No. 11 Civ. 2554, 2012
WL 1694632, *3 (S.D.N.Y. May 15, 2012) (holding that if a court dismisses a complaint “for failure to
exhaust administrative remedies, dismissal without prejudice is appropriate if the time permitted for pursuant
administrative remedies has not expired”) (citing Berry v. Kerik, 366 F.3d 85, 87 (2d Cir. 2004)).

End of Document

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2

Miller v. Primo, Slip Copy (2023)

2023 WL 7545323
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Daishawn Lavon MILLER, Plaintiff,
v.
David PRIMO, Sarah G. Merrick, Patricia DeRue, Jeffrey
Alan Domachowski, and Kelly Murphy, Defendants.
5:23-cv-1051 (BKS/ML)
|
Signed November 14, 2023
Attorneys and Law Firms
Plaintiff pro se, Daishawn Lavon Miller, Syracuse, NY
13206.

MEMORANDUM-DECISION AND ORDER
Brenda K. Sannes, Chief United States District Judge:
I. INTRODUCTION
*1 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 ReportRecommendation, 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 (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
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
*2 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

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1

Miller v. Primo, Slip Copy (2023)

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,
129 S.Ct. 1937, 173 L.Ed.2d 868 (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:
[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 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
*3 Although Plaintiff asserts a number of objections, only
the following appear to concern the findings in the ReportRecommendation. 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 (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
(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

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2

Miller v. Primo, Slip Copy (2023)

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 (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.

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
*4 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

V. CONCLUSION
For these reasons, it is

ORDERED that the Clerk serve a copy of this Order on
Plaintiff in accordance with the Local Rules.

For these reasons, it is hereby

IT IS SO ORDERED.

ORDERED that Magistrate Judge Lovric's ReportRecommendation (Dkt. No. 8) is ADOPTED; and it is further

All Citations

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

Slip Copy, 2023 WL 7545323

Footnotes
1

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.

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3

Miller v. Primo, Slip Copy (2023)

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.

End of Document

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4

miller ex v. Primo, Not Reported in Fed. Supp. (2022)

2022 WL 16551700
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
daishawn-lavon: MILLER EX, Plaintiff,
v.
David PRIMO, et al., Defendants.
5:22-cv-680 (BKS/ML)
|
Signed October 31, 2022
Attorneys and Law Firms
Plaintiff Pro Se: daishawn-lavon: miller ex, 1 Syracuse, New
York 13206.

MEMORANDUM-DECISION AND ORDER
Brenda K. Sannes, Chief United States District Judge:
*1 Plaintiff pro se daishawn-lavon: miller ex brought
this action on June 27, 2022, alleging, inter alia, that
Defendants violated his federal rights. (Dkt. No. 1). This
case was referred to United States Magistrate Judge Miroslav
Lovric who, on September 29, 2022, issued a ReportRecommendation recommending that Plaintiff's complaint
be dismissed in its entirety with leave to amend against
Defendants Bozeman and Newton. (Dkt. No. 6, at 17).
Further, Judge Lovric recommended that Plaintiff's claims
against Defendants Primo, Stanislaus-Fung, Temple, and
Pavone be dismissed without prejudice and without leave to
amend because Plaintiff seeks relief from Defendants who
are immune from suit pursuant to 28 U.S.C. § 1915(e)(2)(B).
(Id.). Magistrate Judge Lovric advised Plaintiff that under 28
U.S.C. § 636(b)(1), he had fourteen days within which to file
written objections to the Report, and that the failure to object
to the Report within fourteen days would preclude appellate
review. (Dkt. No. 6, at 18).
Plaintiff has not filed objections to the ReportRecommendation. For the reasons set forth below, the ReportRecommendation is adopted, and the Complaint is dismissed
with leave to amend against Defendants Bozeman and
Newton.
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 (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.
Having reviewed the Report-Recommendation for clear error
and found none, the Court adopts it for the reasons stated
therein.
For these reasons, it is hereby
ORDERED that Magistrate Judge Lovric's ReportRecommendation, (Dkt. No. 6), is ADOPTED in all respects;
and it is further
ORDERED that that Plaintiff's Complaint, (Dkt. No. 1), is
dismissed in its entirety pursuant to 28 U.S.C. § 1915(e); and
it is further respectfully
ORDERED that Plaintiff's Complaint, (Dkt. No. 1), is
DISMISSED WITHOUT PREJUDICE AND WITH
LEAVE TO AMEND against Defendants Bozeman and
Newton for failure to state a claim upon which relief may
be granted pursuant to 28 U.S.C. § 1915(e)(2)(B); and it is
further
*2 ORDERED that Plaintiff's Complaint, (Dkt. No. 1), is
DISMISSED WITHOUT PREJUDICE AND WITHOUT
LEAVE TO AMEND against Defendants Primo, StanislausFung, Temple, and Pavone because it seeks relief from
defendants who are immune from suit pursuant to 28 U.S.C.
§ 1915(e)(2)(B); and it is further
ORDERED that any amended complaint must be filed
within thirty (30) days of the date of this Order; and any

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1

miller ex v. Primo, Not Reported in Fed. Supp. (2022)

amended complaint must be a complete pleading which will
replace the current complaint in total; 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 the Clerk serve a copy of this Order on
Plaintiff in accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2022 WL 16551700

Footnotes
1

Plaintiff writes his name in lowercase letters.

End of Document

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2

Porter v. Nasci, Slip Copy (2024)

2024 WL 1142144
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
John A. PORTER, III, Plaintiff,
v.
Susan Hamlin NASCI, Defendant.
5:24-CV-0033 (GTS/TWD)
|
Signed March 15, 2024
Attorneys and Law Firms
JOHN A. PORTER, III, 175 Parkside Ave, Syracuse, NY
13207, Plaintiff, pro se.

ORDER AND REPORT-RECOMMENDATION
Thérèse Wiley Dancks, United States Magistrate Judge
*1 The Clerk has sent a pro se complaint together with an
application to proceed in forma pauperis (“IFP”) filed by
Plaintiff John A. Porter, III, to the Court for review. (Dkt. Nos.
1, 2.)
I. BACKGROUND
Plaintiff brings this action under 42 U.S.C. § 1983 alleging
Defendant Susan Hamlin Nasci, “acting as a non-judicial
court employee without proper authority and jurisdiction,”
violated his “constitutional rights.” 1 Id. Plaintiff claims
“Defendant's actions constitute a violation of the Plaintiff's
right to a trial by jury, equal protection of the law, and due
process, resulting in substantial emotional and financial harm
to the Plaintiff.” 2 Id. The complaint does not include any
other factual allegations.
As relief, Plaintiff seeks: (1) $50,000 in actual damages “for
medical conditions and lost income due to severe anxiety
and reduced work capacity”; (2) $50,000 in compensatory
damages for emotional distress “caused by the estrangement
from the Plaintiff's son”; (3) $50,000 in punitive damages to
“penalize the Defendant and deter similar future misconduct”;
(4) “the immediate dismissal” of the “fraudulent child support
financial order imposed upon the Plaintiff”; and (5) the
“return of all payments made by the Plaintiff under the
fraudulent child support order up to the present day.” Id. at 2.

II. IFP APPLICATION
Plaintiff declares in his IFP application that he is unable to
pay the statutory filing fee to commence this action. (Dkt. No.
2.) After reviewing his application, this Court finds Plaintiff
is financially eligible for IFP status. According, Plaintiff's IFP
application is granted. 3
III. STANDARD OF REVIEW
The Court must dismiss an IFP complaint, or any portion
thereof, if the action is frivolous or malicious, fails to state a
claim upon which relief may be granted, or seeks monetary
relief against a defendant who is immune from such relief. See
28 U.S.C. § 1915(e)(2)(B)(i)-(iii); see also Fitzgerald v. First
E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000)
(finding that a district court may dismiss a frivolous complaint
sua sponte even when plaintiff has paid the filing fee). The
Court must also dismiss a complaint, or portion thereof, when
the Court lacks subject matter jurisdiction. See Fed. R. Civ.
P. 12(h)(3).
“An action is frivolous when either: (1) the factual
contentions are clearly baseless such as when the claims
are the product of delusion or fantasy; or (2) the claim is
based on an indisputably meritless legal theory.” Livingston
v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir.
1998). “A claim is based on an indisputably meritless legal
theory when either the claim lacks an arguable basis in law,
or a dispositive defense clearly exists on the face of the
complaint.” Id.
*2 To survive dismissal for failure to state a claim, a
complaint must contain a short and plain statement of the
claim showing that the pleader is entitled to relief. Fed. R. Civ.
P. 8(a)(2). This short and plain statement of the claim must
be “plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The statement of the claim must do more than present
“an unadorned, the-defendant-harmed-me accusation.” Id. It
must “give the defendant fair notice of what the claim is and
the grounds upon which it rests.” Twombly, 550 U.S. at 555;
see also Fed. R. Civ. P. 8(a)(2).
In determining whether a complaint states a claim upon which
relief may be granted, “the court must accept the material facts

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1

Porter v. Nasci, Slip Copy (2024)

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). “[T]he tenet that a court must
accept as true all of the allegations contained in a complaint
is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.
“Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id.

556 U.S. at 678. Specifically, he has failed to set forth a short
and plain statement stating what Defendant did to him, when
she did it, and how he was injured. See id.; see also Fed. R.
Civ. P. 8(a)(2). Absent these basic details, Plaintiff's complaint
has failed to give Defendant fair notice of what his claims
are, and the Court is left with “an unadorned, the-defendantharmed-me accusation.” See Iqbal, 556 U.S. at 678.

The Court will construe the allegations in the complaint with
the utmost leniency. See, e.g., Haines v. Kerner, 404 U.S. 519,
520 (1972) (holding that a pro se litigant's complaint is to be
held “to less stringent standards than formal pleadings drafted
by lawyers.”); see also Sealed Plaintiff v. Sealed Defendant,
537 F.3d 185, 191 (2d Cir. 2008).

*3 Therefore, it is recommended that Plaintiff's complaint
be dismissed for failure to state a claim upon which relief may
be granted. 28 U.S.C. § 1915(e)(2)(B)(ii); Fed. R. Civ. P. 8(a).

IV. ANALYSIS
Liberally construed, Plaintiff brings this action pursuant to 42
U.S.C. § 1983, which establishes a cause of action for “ ‘the
deprivation of any rights, privileges, or immunities secured
by the Constitution and laws’ of the United States.” German
v. Fed. Home Loan Mortg. Corp., 885 F. Supp. 537, 573
(S.D.N.Y. 1995) (citing Wilder v. Virginia Hosp. Ass'n, 496
U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983)) (footnote
omitted); see also Myers v. Wollowitz, No. 95-CV-0272, 1995
WL 236245, at *2 (N.D.N.Y. Apr. 10, 1995) (“42 U.S.C. §
1983 is the vehicle by which individuals may seek redress for
alleged violations of their constitutional rights.”). 4
“Section 1983 itself creates no substantive rights, [but] ...
only a procedure for redress for the deprivation of rights
established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d
Cir. 1993) (citation omitted). To establish liability under the
statute, a plaintiff must plead that each government official
defendant violated the Constitution through that official's own
individual actions. Tangreti v. Bachmann, 983 F.3d 609, 618
(2d Cir. 2020).
Having carefully reviewed Plaintiff's complaint and for the
reasons discussed below, the Court recommends dismissal of
complaint without prejudice and with leave to amend.
A. Failure to State a Claim
The complaint alleges Defendant denied Plaintiff his “right
to a trial by jury, equal protection of the law, and due
process.” (Dkt. No. 1 at 1.) However, Plaintiff has failed to
adequately set forth sufficient factual content to allow this
Court to reasonably infer Defendant was personally involved
and liable for the alleged unconstitutional conduct. See Iqbal,

B. Judicial Immunity
Judges are immune from suit for damages for any actions
taken within the scope of their judicial responsibilities.
Mireles v. Waco, 502 U.S. 9, 11 (1991). Generally, “acts
arising out of, or related to, individual cases before the judge
are considered judicial in nature.” Bliven v. Hunt, 579 F.3d
204, 210 (2d Cir. 2009). “Even allegations of bad faith or
malice cannot overcome judicial immunity.” Id. at 209. This
is because, “[w]ithout insulation from liability, judges would
be subject to harassment and intimidation.” Young v. Selsky,
41 F.3d 47, 51 (2d Cir. 1994). In addition, Section 1983, as
amended in 1996, provides that “in any action brought against
a judicial officer for an act or omission taken in such officer's
judicial capacity, injunctive relief shall not be granted unless
a declaratory decree was violated or declaratory relief was
unavailable.” 42 U.S.C. § 1983.
Judicial immunity does not apply when a judge takes action
“outside” his or her judicial capacity, or when a judge takes
action that, although judicial in nature, is taken “absence of all
jurisdiction.” Mireles 502 U.S. at 11-12; see also Bliven, 579
F.3d at 209-10 (describing actions that are judicial in nature).
But “the scope of [a] judge's jurisdiction must be construed
broadly where the issue is the immunity of the judge.” Stump
v. Sparkman, 435 U.S. 349, 356 (1978).
“New York Family Court Support Magistrates, as New York
State judicial officers, enjoy this judicial immunity, when
presiding over child support proceedings.” 5 Cora v. Wright,
No. 1:24-CV-0263, 2024 WL 450247, at *2 (S.D.N.Y. Feb. 5,
2024) (citing Arce v. Turnbull, No. 21-642, 2021 WL 5816687
(2d Cir. Dec. 8, 2021) (summary order)); see, e.g., Phillips v.
Wagner, No. 1:22-CV-0833 (DNH/ML), 2022 WL 17406092,
at *4 (N.D.N.Y. Nov. 4, 2022) (“Plaintiff's claims under §
1983 against Defendant Wagner, who acted as the support
magistrate judge, are barred under the doctrine of judicial

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2

Porter v. Nasci, Slip Copy (2024)

immunity.”), report and recommendation adopted, 2022 WL
17403441 (N.D.N.Y. Dec. 2, 2022), appeal dismissed, No.
23-68, 2023 WL 4445323 (2d Cir. Apr. 25, 2023).
While not entirely clear, Plaintiff seems to assert claims
for damages and injunctive relief pursuant to Section 1983
against Defendant, a Support Magistrate, who presumably
presided over the child support proceedings that resulted
in the alleged “fraudulent child support financial order
imposed upon the Plaintiff.” (Dkt. No. 1 at 1-2.) Plaintiff,
however, fails to allege any facts showing Defendant acted
beyond the scope of her judicial responsibilities or outside
her jurisdiction. See Mireles, 509 U.S. at 11-12. Moreover,
Plaintiff does not allege any facts suggesting that a declaratory
decree was violated or that declaratory relief was unavailable.
*4 Thus, insofar as Plaintiff sues Defendant “for acts arising
out of, or related to, individual cases before [her],” Defendant
would be entitled to judicial immunity. 6 Bliven, 579 F.3d
at 210; see 28 U.S.C. § 1915(e)(2)(b)(iii); see also Mills
v. Fischer, 645 F. 3d 176, 177 (2d Cir. 2011) (“Any claim
dismissed on the ground of absolute judicial immunity is
‘frivolous’ for purposes of [the IFP statute].”).
C. Jurisdiction
Although the nature of Plaintiff's complaint makes it difficult
to precisely determine which doctrines apply, based on the
relief Plaintiff seeks, this Court may lack jurisdiction to hear
Plaintiff's claims and/or it should likely abstain from hearing
Plaintiff's claims.
Under the Rooker-Feldman doctrine, a federal district court
lacks authority to review a final state court order or judgment
where a litigant seeks relief that invites the federal district
court to reject or overturn such a final state court order or
judgment. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,
544 U.S. 280, 291-92 (2005); Dorce v. City of New York, 2
F.4th 82, 101 (2d Cir. 2021) (The Rooker-Feldman doctrine
“bars federal district courts from hearing cases that in effect
are appeals from state court judgments, because the Supreme
Court [of the United States] is the only federal court with
jurisdiction over such cases.” (citing 28 U.S.C. § 1257)).
“This includes when a litigant seeks relief that invites a federal
district court to reject or overturn a final decision of a New
York Family Court as to a child support dispute brought in
that state court.” Sims v. Kaufman, No. 23-CV-7927, 2024
WL 757338, at *4 (S.D.N.Y. Feb. 14, 2024) (citing Legister
v. Radowitz, No. 1:20-CV-9330, 2020 WL 7405672, at *3

(S.D.N.Y. Dec. 16, 2020)) (“A plaintiff's challenge in a
federal district court to ‘the validity or enforcement of [a]
child support order itself’ is barred by the Rooker-Feldman
doctrine.” (quoting Sykes v. Bank of Am., 723 F.3d 399, 404
(2d Cir. 2013))).
District court review of claims is barred under the RookerFeldman doctrine when four requirements are met: (1) the
litigant lost in state court; (2) the litigant complains of injuries
caused by a final state court order or judgment; (3) the litigant
invites district court review and rejection of the final state
court order or judgment; and (4) the final state court order or
judgment was rendered before the district court proceedings
commenced. Dorce, 2 F.4th at 101 (internal quotation marks
and citation omitted). 7
*5 Plaintiff's claims also appear to implicate the domestic
relations abstention doctrine, which requires federal courts
to abstain from exercising federal question jurisdiction of
domestic relations issues such as divorce, child support
payments and child custody. See Deem v. DiMella-Deem,
941 F.3d 618, 621-24 (2d Cir. 2019) (holding that federal
district courts must abstain from exercising federal-question
jurisdiction of claims involving domestic-relations issues);
American Airlines, Inc. v. Block, 905 F.2d 12, 14 (2d
Cir. 1990) (holding that where a federal district court is
“asked to grant a divorce or annulment, determine support
payments, or award custody of a child,” the court should
abstain from exercising its jurisdiction of such claims if
“there is no obstacle to their full and fair determination
in [the] state courts.”) (internal quotation marks omitted);
see, e.g., Simmons v. NYS Dep't of Soc. Servs., No. 19CV-3633, 2019 WL 5810307, at *4 n.2 (S.D.N.Y. Nov. 5,
2019) (“[C]alculation of support payments is the type of
domestic relations issue that the Court generally abstains from
hearing.”).
V. OPPORTUNITY TO AMEND
As discussed above, the Court finds Plaintiff's complaint
is subject to dismissal failure to state a claim upon which
relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii); Fed. R.
Civ. P. 8(a). Generally, before the Court dismisses a pro se
complaint or any part of the complaint sua sponte, the Court
should afford the plaintiff the opportunity to amend at least
once; however, leave to re-plead may be denied where any
amendment would be futile. Ruffolo v. Oppenheimer & Co.,
987 F.2d 129, 131 (2d Cir. 1993). Futility is present when the
problem with plaintiff's causes of action is substantive such

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3

Porter v. Nasci, Slip Copy (2024)

that better pleading will not cure it. Cuoco v. Moritsugu, 222
F.3d 99, 112 (2d Cir. 2000) (citation omitted).
Although the Court has serious doubts about whether Plaintiff
can amend to assert an actionable claim given the various
jurisdictional and immunity principles discussed above, since
this is Plaintiff's initial complaint and out of an abundance
of caution, the Court recommends that Plaintiff be given
an opportunity to amend to cure the deficiencies identified
above.
The Court advises Plaintiff that should he be permitted to
amend his complaint, any amended pleading he submits to
this Court must comply with Rules 8 and 10 of the Federal
Rules of Civil Procedure. 8 Any such amended complaint
should specifically identify the legal theory or theories that
form the basis for his claim. Plaintiff is cautioned that no
portion of his original complaint shall be incorporated into
his amended complaint by reference. Any amended complaint
submitted by Plaintiff must set forth all of the claims he
intends to assert against the defendants and must demonstrate
that a case or controversy exists between the Plaintiff and the
defendant which Plaintiff has a legal right to pursue and over
which this Court has jurisdiction. Of course, Plaintiff may also
pursue his claims in state court if appropriate.

WHEREFORE, it is hereby
ORDERED that Plaintiff's IFP application (Dkt. No. 2) is
GRANTED; and it is further
RECOMMENDED that Plaintiff's complaint (Dkt. No. 1) be
DISMISSED WITH LEAVE TO AMEND; and it is further
ORDERED that the Clerk provide Plaintiff with a copy of
this Order and Report-Recommendation, along with copies
of the unpublished decisions cited herein in accordance with
Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), Plaintiff has fourteen days
within which to file written objections to the foregoing report.
Such objections shall be filed with the Clerk of the Court. 9
FAILURE TO OBJECT TO THIS REPORT WITHIN
FOURTEEN DAYS WILL PRECLUDE APPELLATE
REVIEW. 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)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed.
R. Civ. P. 72, 6(a).
*6 IT IS SO ORDERED.
All Citations

VI. CONCLUSION

Slip Copy, 2024 WL 1142144

Footnotes
1

The Court takes judicial notice Susan Hamlin Nasci, Esq., is a New York Family Court Support Magistrate.
See https://ww2.nycourts.gov/courts/5jd/onondaga/index.shtml (last visited Mar. 13, 2024).

2

Unless otherwise indicated, excerpts from the complaint are reproduced exactly as they appear in the original
and errors in spelling, punctuation, and grammar have not been corrected.

3

Plaintiff is advised that he will still be 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.

4

Plaintiff also claims Defendant, “acting as a non-judicial court employee without proper authority and
jurisdiction, has trespassed upon the Plaintiff's right, specifically under 18 USC Section 242.” (Dkt. No. 1 at
1.) However, 18 U.S.C. § 242 is a criminal statute, which does not give rise to civil liability or authorize a
private right of action. See Storm-Eggink v. Gottfried, 409 F. App'x 426, 427 (2d Cir. 2011) (holding there is
“no private right of action” under 18 U.S.C. § 242).

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4

Porter v. Nasci, Slip Copy (2024)

5

According to the website maintained by the New York State Unified Court System, “[a] ‘Support Magistrate’
conducts the hearing, taking testimony from both sides concerning their income and expenses and the cost
of supporting the child. The parties can present evidence and witnesses and cross-examine each other and
the witnesses. The Support Magistrate calculates how much support the non-custodial parent must pay to
the parent with custody, and sets a schedule for regular payments.” See https://ww2.nycourts.gov/courts/5jd/
family/support.shtml (last visited Mar. 13, 2024).

6

Defendant also would be protected under the doctrine of sovereign immunity. In Gollomp v. Spitzer, the Court
held that the New York Unified Court System is an “arm of the State” and affirmed the dismissal of a § 1983
claim against a judge under sovereign immunity. 568 F.3d 355, 365-68 (2d Cir. 2009). That holding was
recently reaffirmed by the Second Circuit. Bythewood v. New York, No. 22-2542-cv, 2023 WL 6152796, at *1
(2d Cir. Sept. 21, 2023) (“The New York State Unified Court System is ‘unquestionably an arm of the state’
that shares in New York's immunity to suit.”).

7

To the extent Plaintiff is asking the Court to grant injunctive and declaratory relief with respect to ongoing
Family Court proceedings, including any post-judgment proceedings, the Court must likely abstain from
hearing those claims under the Younger abstention doctrine. Younger v. Harris, 401 U.S. 37 (1971).

8

“A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a
single set of circumstances.” Fed. R. Civ. P. 10(b).

9

If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three
additional days will be added to the fourteen-day period, meaning that you have seventeen days from the
date the Order and Report-Recommendation 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. 6(a)(1)(C).

End of Document

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5

Walker v. O'Connor, Not Reported in Fed. Supp. (2022)

2022 WL 2341420
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Alisha Clark WALKER, Plaintiff,
v.
Dr. Mary O'CONNOR, Defendants.
1:22-cv-581 (DNH/TWD)
|
Signed June 29, 2022
Attorneys and Law Firms
ALISHA CLARK WALKER, Plaintiff, pro se, 757 Taborton
Road, Sand Lake, NY 12153.

ORDER AND REPORT-RECOMMENDATION
THÉRÈSE WILEY DANCKS, United States Magistrate
Judge
*1 Alisha Clark Walker (“Plaintiff”) initiated this action
pro se on June 2, 2022, claiming Dr. Mary O'Connor
(“Defendant”) violated 42 U.S.C. § 1983 and § 1985. (Dkt.
No. 1.) Plaintiff simultaneously moved to proceed in forma
pauperis (“IFP”). (Dkt. No. 2.) Having reviewed Plaintiff's
motion to proceed IFP, the undersigned GRANTS the motion
for purposes of this review. See id. The undersigned now
considers the sufficiency of the allegations set forth in the
Complaint under 28 U.S.C. § 1915(e). For the reasons
discussed below, the undersigned recommends that the Court
dismiss Plaintiff's Complaint in its entirety with leave to
amend. (Dkt. No. 1.)
I. SUMMARY OF THE COMPLAINT 1
This is the second of two actions Plaintiff initiated against
various individuals stemming from a child custody dispute in
New York State Family Court. (See Dkt. No. 1; see also Case
No. 1:22-cv-560, Dkt. No. 1.) In the first (hereinafter, “Walker
I”), Plaintiff claimed several New York State Family Court
Judges, two private attorneys, and the Averill Park School
District violated her First and Fourteenth Amendment rights.
(Case No. 1:22-cv-560, Dkt. No. 1.) In this case, Plaintiff
restates and reasserts many of the same claims against Dr.
Mary O'Connor, a private individual ordered by the New State
Family Court to render forensic psychological evaluations in

the underlying custody dispute. (See Dkt. No. 1 at 1-2, 8.)
Here, as in Walker I, Plaintiff invokes this Court's jurisdiction
under 28 U.S.C. § 1331 and § 1343, purporting to advance
several causes of action under 42 U.S.C. § 1983 and § 1985.
(Dkt. No. 1 at 4.)
Plaintiff claims “the policies, practices, procedures, and
standards established and/or maintained by Defendant/s [sic]
violate the Right to Free speech under the First Amendment,
and the Due Process and Equal Protection clauses of the
Fourteenth Amendment to the U.S. Constitution.” Id. at
4. Plaintiff accordingly recycles many of the same claims
against Dr. O'Connor that she asserted against the Defendants
in Walker I. See id. at 9-31. Through the first cause of action,
Plaintiff claims Dr. O'Connor “religiously discriminated
against” her in violation of the First Amendment. Id. at 9.
In her second cause of action, Plaintiff claims Dr. O'Connor
retaliated against her in violation of the First Amendment.
Id. at 10. By her third cause of action, Plaintiff claims
Dr. O'Connor “deprived [her] of the rights of a mother to
her children and due process and freedom of speech” in
violation of the First and Fourteenth Amendments. Id. at
12-13. Through her fourth cause of action, Plaintiff claims
Dr. O'Connor discriminated against her. Id. at 14-19. In her
fifth cause of action, Plaintiff claims Dr. O'Connor used her
position to “maliciously intentionally inflict harm and pain
on the Plaintiff.” Id. at 20. By her sixth and final cause of
action, Plaintiff claims Dr. O'Connor engaged in sex bias
discrimination. Id. at 25.
II. STANDARD OF REVIEW
*2 This Court must conduct an initial review of complaints
filed in forma pauperis, and “complaints in which a prisoner
seeks redress from a governmental entity or officer or
employee of a governmental entity.” 28 U.S.C. § 1915(e)(2)
(B) (governing complaints filed in forma pauperis); 28 U.S.C.
§ 1915A (governing complaints filed by prisoners against
the government). When reviewing these types of complaints,
this Court must “identify cognizable claims or dismiss the
complaint, or any portion of the complaint, if the complaint ...
is frivolous, malicious, or 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. §
1915A; 28 U.S.C. § 1915(e)(2)(B); see also Allen v. Stringer,
No. 20-3953, 2021 WL 4472667, at *1 (2d Cir. Sept. 30,
2021) (applying Section 1915(e)(2)(B)); Carr v. Dvorin, 171
F.3d 115, 116 (2d Cir. 1999) (applying Section 1915A). 2

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1

Walker v. O'Connor, Not Reported in Fed. Supp. (2022)

This Court must exercise caution when determining whether
to sua sponte dismiss a pro se complaint on the grounds that
it is frivolous. See Thomas v. Scully, 943 F.2d 259, 260 (2d
Cir. 1991); Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir.
1983). “An action is frivolous when either: (1) the factual
contentions are clearly baseless such as when the claims
are the product of delusion or fantasy; or (2) the claim is
based on an indisputably meritless legal theory.” Livingston
v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir.
1998). “A claim is based on an indisputably meritless legal
theory when either the claim lacks an arguable basis in law,
or a dispositive defense clearly exists on the face of the
complaint.” Id.
When undertaking this initial review, the Court must construe
pro se pleadings with the utmost leniency. See Haines v.
Kerner, 404 U.S. 519, 520-21 (1972) (holding that a pro se
litigant's complaint is to be held “to less stringent standards
than formal pleadings drafted by lawyers”); see also Sealed
Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir.
2008). To survive dismissal for failure to state a claim, a
complaint must contain a short and plain statement of the
claim showing that the pleader is entitled to relief. Fed. R. Civ.
P. 8(a)(2). This short and plain statement of the claim must
be “plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The statement of the claim must do more than present
“an unadorned, the-defendant-harmed-me accusation.” Iqbal,
556 U.S. 662, 678. It must “give the defendant fair notice
of what the claim is and the grounds upon which it rests.”
Twombly, 550 U.S. 544, 555; see also Fed. R. Civ. P. 8(a)(2).
In determining whether a complaint states a claim upon which
relief may be granted, “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). “[T]he tenet
that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions.” Iqbal, 556
U.S. at 678. “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice.” Id.
III. SUFFICIENCY OF THE COMPLAINT
*3 Plaintiff's Complaint should be dismissed because it
fails to state a claim upon which relief may be granted.

See 28 U.S.C. § 1915(e)(2)(B). Moreover, just like Walker
I, Plaintiff's claims are likely barred by either the Younger
abstention or the Rooker-Feldman doctrine.
A. Plaintiff's Section 1983 Claims
Construing Plaintiff's Complaint liberally, Sealed Plaintiff,
537 F.3d at 191, the undersigned concludes Plaintiff has
failed to state a claim for relief under 42 U.S.C. § 1983.
See 28 U.S.C. § 1915(e)(2)(B)(ii). 3 Plaintiff purports to
bring this action against Dr. O'Connor, a court-appointed
forensic psychologist, under 42 U.S.C. § 1983. (See Dkt. No.
1 at 3-4.) “To prevail on a claim under 42 U.S.C. § 1983,
a plaintiff must allege (1) that some person has deprived
him of a federal right, and (2) that the person who has
deprived him of that right acted under color of state law.”
Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005). “[P]rivate
individuals ... cannot be sued under 42 U.S.C. § 1983 absent
a plausible allegation that they acted under color of state
law.” Basile v. Connolly, 538 F. App'x 5, 7 (2d Cir. 2013).
A conclusory allegation that a private individual acted in
concert with a state actor does not constitute a plausible
allegation that the private individual acted under color of
state law. See Ciambriello v. Cnty. of Nassau, 292 F.3d 307,
324 (2d Cir. 2002); see, e.g., Asensio v. DiFiore, No. 18CV-10933 (RA), 2019 WL 4392743, at *8 (S.D.N.Y. Sept.
13, 2019) (concluding the plaintiff's “conclusory allegations”
of conspiracy were “plainly insufficient to support a finding
that [the defendant] has acted under color of state law.”);
Bornschein v. Herman, 304 F. Supp. 3d 296, 301 (N.D.N.Y.
2018) (same).
Plaintiff's Section 1983 claims against Dr. O'Connor are
inadequately pled because she failed to allege Dr. O'Connor
acted under color of state law. See 42 U.S.C. § 1983; Velez,
401 F.3d at 84. Plaintiff's conclusory allegations that Dr.
O'Connor acted in concert with state actors do not plausibly
allege that Dr. O'Connor acted under color of state law. See
Asensio, 2019 WL 4392743, at *8; Bornschein, 304 F. Supp.
3d at 301. Similarly, Plaintiff's allegation that Dr. O'Connor
was ordered by the court to issue a forensic evaluation does
not give rise to the reasonable inference that she was acting
under color of state law. See, e.g., Markham v. Rosenbaum,
No. 20-CV-6039-FPG, 2020 WL 3316099, at *9 (W.D.N.Y.
June 18, 2020), appeal dismissed, No. 20-2223, 2021 WL
3027159 (2d Cir. May 13, 2021) (concluding a courtappointed psychologist was not a state actor for purposes of
a claim brought pursuant to 42 U.S.C. § 1983 arising out
of child custody dispute); Elmasri v. England, 111 F. Supp.

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2

Walker v. O'Connor, Not Reported in Fed. Supp. (2022)

2d 212, 221 (E.D.N.Y. 2000) (same); see generally Estiverne
v. Esernio-Jenssen, 910 F. Supp. 2d 434, 444 (E.D.N.Y.
2012) (“Dr. Jenssen's cooperation in the [Administration
for Children's Services] investigation, by providing medical
information and opinion, does not transform her into a state
actor.”). The undersigned accordingly recommends that the
Court dismiss all claims asserted under 42 U.S.C. § 1983
on the grounds that Plaintiff failed to adequately allege Dr.
O'Connor acted under color of state law. See 28 U.S.C.
1915(e)(2)(B)(ii).
*4 Moreover, Plaintiff has failed to adequately allege Dr.
O'Connor violated one of her federal rights. See 42 U.S.C.
§ 1983; see also Velez, 401 F.3d at 84. Plaintiff repeatedly
claims Dr. O'Connor violated her First and Fourteenth
Amendment rights. (See Dkt. No. 1 at 4, 9-31.) Yet, Plaintiff
failed to support this general claim with sufficient factual
allegations to give rise to the reasonable inference that Dr.
O'Connor's conduct amounted to an actual violation of her
First and Fourteenth Amendment rights. See Iqbal, 556 U.S.
at 678. Because Plaintiff failed to plausibly allege that Dr.
O'Connor violated one or more of her federal rights, the
undersigned recommends that the Court dismiss every cause
of action Plaintiff asserts under Section 1983 for failure
to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(ii); see,
e.g., Perez v. Colon, No. 9:19-CV-0722 (BKS), 2019 WL
5102612, at *6 (N.D.N.Y. Oct. 11, 2019) (“In the absence
of factual allegations sufficient to plausibly suggest that the
defendant was personally involved in conduct that violated
Plaintiff's constitutional rights, the complaint fails to state a
cognizable claim against him/her.”); Hamilton v. New York
State Dep't of Corr. & Cmty. Supervision, No. 9:18-CV-1312
(MAD), 2019 WL 2352981, at *7 (N.D.N.Y. June 4, 2019)
(same).
B. Plaintiff's Section 1985 Claims
Construing Plaintiff's Complaint liberally, Sealed Plaintiff,
537 F.3d at 191, the undersigned concludes Plaintiff has
failed to state a claim for relief under 42 U.S.C. § 1985. See
28 U.S.C. § 1915(e)(2)(B)(ii). 4 To state a conspiracy claim
under 42 U.S.C. § 1985(3), a plaintiff must allege: “(1) a
conspiracy; (2) for the purpose of depriving, either directly
or indirectly, any person or class of persons of the equal
protection of the laws, or of equal privileges and immunities
under the laws; (3) an act in furtherance of the conspiracy; (4)
whereby a person is either injured in his person or property
or deprived of any right or privilege of a citizen of the United
States.” Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778,

791 (2d Cir. 2007); see also DeRouseau, 2022 WL 1747859,
at *3. Further, the “conspiracy must also be motivated
by some racial or perhaps otherwise class-based, invidious
discriminatory animus behind the conspirators’ action.” Cine
SK8, Inc., 507 F.3d at 791. “Complaints containing only
conclusory, vague, or general allegations that the defendants
have engaged in a conspiracy to deprive the plaintiff of
his constitutional rights are properly dismissed; diffuse and
expansive allegations are insufficient, unless amplified by
specific instances of misconduct.” DeRouseau, 2022 WL
1747859, at *3; see, e.g., Webb v. Goord, 340 F.3d 105, 110-11
(2d Cir. 2003) (“The plaintiffs have not alleged, except in the
most conclusory fashion, that any such meeting of the minds
occurred among any or all of the defendants. Their conspiracy
allegation must therefore fail.”); Morpurgo v. Inc. Vill. of Sag
Harbor, 697 F. Supp. 2d 309, 340 (E.D.N.Y. 2010), aff'd, 417
F. App'x 96 (2d Cir. 2011) (concluding the § 1985 conspiracy
claim failed because “Plaintiff has provided only conclusory,
vague and unsupported allegations ... as a basis for asking the
Court to find the existence of a conspiracy.”). Moreover, a §
1985 conspiracy claim fails as a matter of law where there
is no underlying constitutional violation. See, e.g., Oliver v.
Penny, No. 21-111, 2022 WL 2165814, at *3 (2d Cir. June
16, 2022) (concluding plaintiff's § 1985 conspiracy claim
“failed because she did not plausibly allege an underlying
constitutional violation”); Tirse v. Gilbo, No. 6:15-CV-0987
(GTS) (ATB), 2016 WL 4046780, at *18 (N.D.N.Y. July 27,
2016) (“Because the Court has found that Plaintiff has failed
to allege facts plausibly suggesting a conspiracy and/or an
underlying constitutional violation, Plaintiff's § 1985 claim is
likewise dismissed.”).
*5 Here, Plaintiff failed to advance any non-conclusory
factual allegations suggesting Dr. O'Connor targeted and
discriminated against her on the basis of sex. (See generally
Dkt. No. 1; see, e.g., Doe v. Fenchel, 837 F. App'x 67, 68
(2d Cir. 2021) (concluding plaintiff failed to plead any facts
in support of the “conclusory allegations” that defendants
“targeted him and discriminated against him based on his
race, color, gender, sex, veteran status, disability status, and
so forth.”).) Although Plaintiff alleges Dr. O'Connor “acted
in malice with bias” and “routinely engag[ed] in sex bias and
discrimination,” she fails to advance any factual allegations
to support this conclusory statement. (See Dkt. No. 1 at 5, 25.)
“Such naked assertions devoid of further factual enhancement
are insufficient to give rise to a plausible entitlement to relief.”
Doe, 837 F. App'x at 68.

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3

Walker v. O'Connor, Not Reported in Fed. Supp. (2022)

Plaintiff also failed to adequately allege Dr. O'Connor
conspired with other individuals to engage in unlawful
conduct against her. (See generally Dkt. No. 1 at 13-14.)
Plaintiff advanced the general allegation that Dr. O'Connor
acted in concert with others during the custody dispute before
the New York State Family Court, but advanced no factual
allegations indicating that Dr. O'Connor agreed to engage in
unlawful conduct against her. See id. As explained above, the
Complaint lacks sufficient factual allegations to give rise to
the reasonable inference that Dr. O'Connor violated Plaintiff's
First and Fourteenth Amendment rights. See Iqbal, 556 U.S.
at 678. The general allegation that Dr. O'Connor acted in
concert with others, without more, does not give rise to
the inference that she agreed to engage in unlawful conduct
against Plaintiff. See, e.g., Webb, 340 F.3d at 110-11; Alston v.
Sebelius, No. 13-CV-4537 (SJF) (ARL), 2014 WL 4374644,
at *18 (E.D.N.Y. Sept. 2, 2014); Morpurgo, 697 F. Supp. 2d
at 340.
Finally, Plaintiff failed to allege facts plausibly suggesting
an underlying constitutional violation. (See generally Dkt.
No. 1 at 9-31; see, e.g., Tirse, 2016 WL 4046780,
at *18 (dismissing a § 1985 conspiracy claim because
“Plaintiff has failed to allege facts plausibly suggesting ...
an underlying constitutional violation”.).) Plaintiff alleged
in conclusory fashion that Dr. O'Connor violated her First
and Fourteenth Amendment rights, but her Complaint lacks
factual allegations to support this claim. (See generally Dkt.
No. 1 at 4, 6, 9-31.) Those conclusory allegations fail to
plausibly allege a constitutional violation. See id.; see also
Iqbal, 556 U.S. at 678. Plaintiff has accordingly failed to
state a claim for relief under 42 U.S.C. § 1985(3). See, e.g.,
Oliver, 2022 WL 2165814, at *3; Tirse, 2016 WL 4046780,
at *18; Alston, 2014 WL 4374644, at *18. The undersigned
therefore recommends that the Court dismiss every cause of
action Plaintiff asserts under 42 U.S.C. § 1985(3) for failure
to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(ii). 5
C. Jurisdiction
Although the nature of Plaintiff's Complaint makes it difficult
to precisely determine which doctrines apply, her claims
are likely barred by Younger abstention and/or the RookerFeldman doctrine. (See Dkt. No. 1; see, e.g., Amato v.
McGinty, No. 1:21-CV-00860 (GLS) (TWD), 2022 WL
226798, at *10-11 (N.D.N.Y. Jan. 26, 2022) (concluding
plaintiff's claims, which stemmed from an underlying New
York State Family Court custody dispute, were likely barred
by Younger abstention and the Rooker-Feldman doctrine).)

*6 First, in the event the underlying family court
proceedings are pending, such claims are likely barred by
the Younger abstention doctrine. See generally Younger v.
Harris, 401 U.S. 37 (1971); see, e.g., Amato, 2022 WL
226798, at *11. In Sprint Communications, Inc. v. Jacobs,
571 U.S. 69 (2013), the Supreme Court clarified that the
Younger abstention doctrine is limited to three exceptional
circumstances, including: (1) state criminal prosecutions; (2)
civil enforcement, or “quasi-criminal,” proceedings; and (3)
“civil proceedings involving certain orders that are uniquely
in furtherance of the state courts’ ability to perform their
judicial functions.” Id. at 72-73; see also id. (“This Court
has extended Younger abstention to particular state civil
proceedings that are akin to criminal prosecutions ... or
that implicate a State's interest in enforcing the orders and
judgments of its courts”).
Here, Plaintiff seeks injunctive relief from a child custody
dispute before New York State Family Court. (Dkt. No.
1 at 1-2, 32.) “[I]t is well-settled that a custody dispute
raises important state interests.” Stumpf v. Maywalt, No. 21CV-06248 (EAW), 2022 WL 2062613, at *3 (W.D.N.Y. June
6, 2022) (collecting cases); see also Graham v. N.Y. Ctr.
for Interpersonal Dev., No. 15-CV-00459 (PKC), 2015 WL
1120120, at *3 (E.D.N.Y. Mar. 12, 2015). Accordingly, to
the extent the custody dispute is continuing in New York
State Family Court, this Court should abstain from interfering
with that process. See, e.g., Stumpf, 2022 WL 2062613, at
*3 (applying Younger abstention in an action stemming from
an ongoing child custody dispute); Walker v. Fam. Ct. Judge
Catherine Cholakis, No. 1:19-CV-1288 (LEK) (CFH), 2020
WL 3503158, at *4 (N.D.N.Y. June 29, 2020) (applying
Younger abstention in an action seeking declaratory relief
over a child custody dispute); Graham, 2015 WL 1120120,
at *3 (applying Younger abstention in an action seeking
injunctive relief over a child custody dispute); Rhee-Karn v.
Burnett, No. 13 CIV. 6132 (JPO), 2014 WL 4494126, at *7
(S.D.N.Y. Sept. 12, 2014) (applying Younger abstention in an
action seeking declaratory and injunctive relief over a child
custody dispute).
Second, in the event the relevant underlying state court
proceedings are concluded, such claims are likely barred
by the Rooker-Feldman doctrine. See Phifer v. City of New
York, 289 F.3d 49, 57 (2d Cir. 2002) (“There is no question
that Rooker–Feldman bars Phifer's challenges to the family
court's decisions regarding custody, neglect, and visitation.”);
Fernandez v. Turetsky, No. 1 2-CV-4092 (SLT) (MDG), 2014

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4

Walker v. O'Connor, Not Reported in Fed. Supp. (2022)

WL 5823116, at *4 (E.D.N.Y. Nov. 7, 2014), aff'd, 645 F.
App'x 103 (2d Cir. 2016) (“Courts have repeatedly invoked
the [Rooker-Feldman] doctrine in cases, like the one currently
before the Court, in which plaintiffs challenge family court
decrees setting child support arrears.”) (collecting cases).
“The Rooker-Feldman doctrine bars federal district courts
from hearing cases that in effect are appeals from state court
judgments, because the Supreme Court is the only federal
court with jurisdiction over such cases.” Dorce v. City of New
York, 2 F.4th 82, 101 (2d Cir. 2021); see also Sykes v. Mel
S. Harris & Assocs. LLC, 780 F.3d 70, 94 (2d Cir. 2015).
The Rooker-Feldman doctrine applies where the federal court
plaintiff: (1) lost in state court, (2) complains of injuries
caused by the state court judgment, (3) invites the district
court to review and reject the state court judgment, and (4)
commenced the district court proceedings after the state court
judgment was rendered. Dorce, 2 F.4th 82, 101; Sykes, 780
F.3d at 94.
Here, it appears Plaintiff “lost” in New York State Family
Court, complains of injuries caused by that court's judgments,
and asks this Court to invalidate those judgments on the
grounds that they violated her due process rights. (See Dkt.
No. 1 at 32 (requesting an “injunction barring Defendant
from continuing their [sic] illegal acts,” and a “permanent
restraining order to be placed on the defendant [sic]”).) Thus,
as currently drafted, Plaintiff's Complaint is likely barred
under the Rooker-Feldman doctrine. See, e.g., Phifer, 289
F.3d at 57; Stumpf, 2022 WL 2062613, at *4 n.4; Amato, 2022
WL 226798, at *10; Fernandez, 2014 WL 5823116, at *4.

*7 For the foregoing reasons, the undersigned recommends
that the Court dismiss Plaintiff's Complaint with leave to
amend. (Dkt. No. 1.)
ACCORDINGLY, it is hereby
ORDERED that Plaintiff's IFP Application (Dkt. No. 2) is
GRANTED solely for purposes of initial review; and it is
further
ORDERED that the Clerk provide Plaintiff with a copy of
this Order and Report-Recommendation, along with copies
of the unpublished decisions cited herein in accordance with
Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam);
and it is further
RECOMMENDED that Plaintiff's Complaint (Dkt. No. 1)
be DISMISSED WITH LEAVE TO AMEND pursuant to
28 U.S.C. § 1915(e)(2)(B).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have
fourteen days within which to file written objections to
the foregoing report. 6 Such objections shall be filed with
the Clerk of the Court. FAILURE TO OBJECT TO
THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. 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)); 28 U.S.C. §
636(b)(1) (Supp. 2013); Fed. R. Civ. P. 72, 6(a).
All Citations

IV. CONCLUSION

Not Reported in Fed. Supp., 2022 WL 2341420

Footnotes
1

The following recitation of facts is drawn from the Complaint, which the Court accepts as true for purposes
of initial review. See, e.g., LaTouche v. Rockland County, No. 22-CV-1437 (LTS), 2022 WL 953111, at *1
(S.D.N.Y. Mar. 29, 2022); Walker v. City of New York, No. 20-CV-5240 (PKC) (LB), 2021 WL 1838277, at
*1 n.1 (E.D.N.Y. May 7, 2021).

2

Unless otherwise indicated, in quoting cases, all alterations, internal quotation marks, emphases, footnotes,
and citations are omitted. See, e.g., Sczepanski v. Saul, 946 F.3d 152, 157 n.4 (2d Cir. 2020).

3

Plaintiff does not explain or distinguish which of her six causes of action are advanced under 42 U.S.C. §
1983, and which are advanced under 42 U.S.C. § 1985. (See generally Dkt. No. 1 at 9-31.) The undersigned

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5

Walker v. O'Connor, Not Reported in Fed. Supp. (2022)

accordingly considers whether any of Plaintiff's six causes of action state a claim for relief under 42 U.S.C.
§ 1983. See Sealed Plaintiff, 537 F.3d at 191.
4

Plaintiff does not explain or distinguish which of her six causes of action are advanced under 42 U.S.C. §
1983, and which are advanced under 42 U.S.C. § 1985. (See generally Dkt. No. 1 at 9-31.) The undersigned
accordingly considers whether any of Plaintiff's six causes of action state a claim for relief under 42 U.S.C.
§ 1985. See Sealed Plaintiff, 537 F.3d at 191.

5

The undersigned notes that, nested within Plaintiff's third cause of action, she purports to assert a “civil rights
action brought pursuant to Title VII of the Civil Rights Act of 1964.” (Dkt. No. 1 at 4, 14.) That claim fails,
however, because Plaintiff did not allege she is or was an employee of Dr. O'Connor, and she did not allege
any employment discrimination. See, e.g., Amato v. McGinty, No. 1:21-CV-00860 (GLS) (TWD), 2022 WL
226798, at *8 (N.D.N.Y. Jan. 26, 2022) (dismissing plaintiff's Title VII claim as frivolous because she did not
“allege employment discrimination or that she is or was an employee of Judge McGinty”) (collecting cases).

6

If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three
additional days will be added to the fourteen-day period, meaning that you have seventeen days from the
date the Order and Report-Recommendation 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. 6(a)(1)(C).

End of Document

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6

Amato v. McGinty, Not Reported in Fed. Supp. (2022)

2022 WL 226798
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Francesca AMATO, Plaintiff,
v.
Anthony MCGINTY, Defendant.
1:21-cv-00860 (GLS/TWD)
|
Signed 01/26/2022
Attorneys and Law Firms
FRANCESCA AMATO, Plaintiff, pro se, PO Box 774,
Marlboro, NY 12542.

ORDER AND REPORT-RECOMMENDATION
THÉRÈSE WILEY DANCKS, United States Magistrate
Judge
*1 Francesca Amato (“Plaintiff” or “Amato”), proceeding
pro se, filed an action against Ulster County Family Court
Judge Anthony McGinty (“Defendant” or “Judge McGinty”).
(Dkt. No. 1.) This case is related to Orr v. McGinty, 1:17cv-1280 (GLS/TWD). (Dkt. No. 5. 1 ) Plaintiff has not paid
the filing fee, but instead seeks leave to proceed in forma
pauperis (“IFP”). (Dkt. No. 16.) For the reasons discussed
below, the Court grants Plaintiff's fourth IFP application (Dkt.
No. 16) and recommends dismissal of the amended complaint
(Dkt. No. 6) in its entirety.
I. BACKGROUND
Plaintiff initiated this action and moved to proceed IFP
on July 30, 2021. (Dkt. Nos. 1, 2.) However, the initial
pleading was not signed and Plaintiff was directed to submit
a signed copy of the complaint. (Dkt. No. 5.) On August 13,
2021, Plaintiff submitted a signed copy of the complaint, but
also attached five exhibits that were not submitted with the
original pleading. (Dkt. No. 6.) As such, the signed pleading
was docketed as the amended complaint.
Thereafter, by Orders filed October 28, 2021, November 17,
2021, and December 17, 2021, this Court denied Plaintiff's
motions to proceed IFP. (Dkt. Nos. 8, 11, 14.) In the December
17, 2021, Order, Plaintiff was afforded one final opportunity

to submit a fully completed IFP application or pay the entire
filing fee by January 6, 2022. (Dkt. No. 14.) Despite the
foregoing directive, Plaintiff's fourth IFP application was not
filed until January 10, 2022. (Dkt. No. 16.)
II. IFP APPLICATION
Plaintiff declares in her fourth IFP application that she is
unable to pay the filing fee. (Dkt. No. 16.) After reviewing the
submission, the Court finds Plaintiff meets the requirement
for economic need and thus her IFP application is granted.
III. SUFFICIENCY OF THE AMENDED
COMPLAINT
A. Legal Standard
28 U.S.C. § 1915(e) directs that, when a plaintiff seeks to
proceed in forma pauperis, “the court shall dismiss the case
at any time if the court determines that – ... (B) 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)(B).
To determine whether an action is frivolous, a court must
look to see whether the complaint “lacks an arguable basis
either in law or in fact.” Neitzke v. Williams, 490 U.S. 319,
325 (1989). To survive dismissal for failure to state a claim,
a complaint must plead enough facts to state a claim that
is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). While Rule 8(a) of the Federal Rules of Civil
Procedure, which sets forth the general rules of pleading,
“does not require detailed factual allegations, ... it demands
more than an unadorned, the-defendant-unlawfully-harmedme accusation.” Id.
*2 In determining whether a complaint states a claim upon
which relief may be granted, “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).
“[T]he tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals

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Amato v. McGinty, Not Reported in Fed. Supp. (2022)

of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id.
A pro se litigant's pleadings are held to a less strict standard
than attorney drafted pleadings. See Fed. Express Corp. v.
Holowecki, 552 U.S. 389, 402 (2008) (“Even in the formal
litigation context, pro se litigants are held to a lesser pleading
standard than other parties.”). Because Plaintiff is proceeding
pro se, the Court construes her pleadings “to raise the
strongest arguments that they suggest.” See Triestman v. Fed.
Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006) (per
curiam) (internal quotation marks omitted). However, this
“does not exempt [Plaintiff] from compliance with relevant
rules of procedural and substantive law.” Traguth v. Zuck, 710
F.2d 90, 95 (2d Cir. 1983).

Protection Clauses of the Fourteenth Amendments to the U.S.
Constitution.” Id. at 5. She also claims that “[u]nder color
of authority, Anthony McGinty deprived me of my rights
to my child, due process, and ADA rights were completely
violated.” Id. Plaintiff seeks compensatory and punitive
damages, along with injunctive and declaratory relief. Id. at
5-6. She further states:

*3 I demand my son's immediate
return to his home with me at once
and that a permanent restraining order
is placed on this highly abusive Judge
Anthony McGinty and also in his
individual capacity as I feel he is
a threat and danger to my family
within his political power and lack
of professionalism and boundaries.
I'm also concerned with his mental
state and feel he is unfit and I have
overwhelming information and belief
that he is an addict.

B. Summary of the Amended Complaint
Plaintiff brings this action against Defendant in both his
“judicial” and “individual” capacity. (Dkt. No. 6 at 1. 2 ) The
amended complaint is written on a form complaint brought
pursuant to the American with Disabilities Act (“ADA”).
Id. at 1-4. Plaintiff also lists her minor child, C.A.B., as a
plaintiff. Id. at 1, 5 (“Plaintiffs Francesca Amato & C.A.B.
(hereafter, the ‘Plaintiffs’)—hereby makes these allegations
against Defendant herein as follows[.]”).
Her disabilities are listed as “ptsd” and “LAS”, which she
defines as “Legal Abuse Syndrome caused by defendant's
actions and inactions.” Id. at 2. She complains of the
following conduct: denial of participation in public service
or program, failure to make alterations to accommodate
disability, retaliation, and others “in federal suit.” Id. at 3.
However, the section of the form complaint titled “Facts” is
blank. See id. As to the “Prayer for Relief”, Plaintiff states
“see attached lawsuit.” Id. at 4.
The “attached lawsuit” consists of 24 typewritten, single
spaced pages, id. at 5-29, along with an additional 56 pages of
exhibits. (Dkt. Nos. 6-1 through 6-5.) The “attached lawsuit”
references the related action, Orr v. McGinty, 1:17-cv-1280
(GLS/TWD), and Plaintiff states she is “requesting the right
to re plead [and] I am also filing a new verified complaint due
to ongoing abuse by the defendant.” Id. at 5.
Plaintiff's amended complaint also references 42 U.S.C.
§ 1983. See id. at 5-6. Plaintiff claims the “policies,
practices, procedures and standards established and/or
maintained by Defendant violate the Due Process and Equal

Id. at 26.
According to Plaintiff, “this is also a civil rights action
brought pursuant to Title VII of the Civil Rights Acts
of 1964” because Defendant authorized “unconstitutional,
gender-biased contested Judgment of Custody polices,
practices, procedures and standards.” Id. at 6. Plaintiff
contends Judge McGinty's “policies, practices, procedures
and standards are gender biased, unconstitutional, have
disparate impact on women and violate women's NYS entitled
equal economic, property ownership and custody rights in
contested Judgement of Custody Orders when domestic
violence (“DV”) exists.” Id. at 7. Judge McGinty “has a
history of court orders that change custody to abusive fathers
and remove them from safe, loving caretakers with an extreme
general bias against mothers.” Id. at 11. Defendant also
ignores the ACP address confidentially program of New York
State. Id.
Generally, Plaintiff alleges that from “February 2019
to Ongoing” Defendant “enforced polices, practices,
procedures, and standards that prevented Plaintiff from
proving the Custody Orders issued by trial were based
on the wrong legal standards, erroneous facts, a biased
unconstitutional trial. And prevented me from being able

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Amato v. McGinty, Not Reported in Fed. Supp. (2022)

he was released from jail. McGinty was clearly Aware of
all of this as he testified to it during the 2020 trial.

to have my witnesses and my own testimony.” Id. at 7.
Defendant also “denied Plaintiff child access to his Service
dogs and home status quo and private bedroom and consistent
life needed to heal from past abuse.” Id.

Id. at 13.

Plaintiff alleges Judge McGinty denied her “all ADA
accommodations requested over and over orally and in
writing and further abuse[d] his power by forcing plaintiff to
draft own motions and train all parties in the ADA in order to
protect my rights that continually are denied.” Id.

Plaintiff also claims Judge McGinty “intentionally ignores all
emergency motions and puts them out months and months at a
time; and takes hearsay from the father without any evidence
or fact finding violating and taking/ away more rights.” Id. at
14.

She further claims Judge McGinty is “intentionally practicing
and inflicting highly unlawful Discriminatory abuse upon
[Plaintiff] due to [her] years of reputable advocacy and
exposure of him.” Id. at 6. He has also retaliated against
her because of her “two time best-selling book, Punished 4

Plaintiff references the related case, and states that her ADA
claims against Judge McGinty were dismissed in Orr v.
McGinty, without prejudice and with leave to replead. Id.

Protecting: The Injustice of Family Court.” Id. 3
Plaintiff explains that “anytime I enter the Family Court it will
be the three of them 4 against me leaving an extremely unfair
disadvantage, further harm and suffering and full control. I
am constantly bullied and they cooperate together to continue
to retaliate against me by using my child as their pawn.
McGinty's actions have caused my son and I irreparable
injury and each second this continues threatens to harm us
indefinitely.” Id. at 11.
*4 Plaintiff claims “having pre diagnosed ptsd and LAS
received zero ADA Accommodations requested and missed
a court appearance on March 8, 2020.” Id. at 12. According
to Plaintiff, she missed the court appearance “due to stress
and denial of rights combined with fear of [the] court causing
further harm to my son and family and fear of further McGinty
retaliation causing ptsd to be triggered.” Id. She has “no
recollection of being handed a slip” and did not put the
March 8, 2020, court date on her calendar. Id. Plaintiff claims
Defendant:
refused to give me enough time to get proper expensive
counsel needed to fight such a traumatic 3 rd trial. I was
thrown into trial and discriminated further bc I “did such
a good job, I couldn't possibly have ptsd” this only proves
that I didn't willfully miss a court date two days before
our Country was on COVID quarantine but that with ptsd
memory issues occur during high stress moments. McGinty
used it as a legal loophole to strip me of all custody giving
my son to his estranged father who barely had visits of 8
hours a month and abandoned the child in California after

at 15. 5 According to Plaintiff, she is pursuing her “right to
replead and add ongoing violations in current proceedings
against Judge Antony McGinty and his ongoing abuse to me
and my son C.A.B.” Id. She explains that she “didn't continue
at that time to fight this case because my son was returned
to my sole custody on September 17, 2017[,] and we were
healing from the damages and severe trauma.” Id.
Plaintiff states that she was diagnosed in 2016 and “orally
and in writing has requested ADA Accommodations”
“numerous” times to “let the court know” that Defendant
has “withheld” her child's “full service therapy dogs” since
October 2, 2020, amounting to “intentional and deliberate
indifference.” Id. at 15.
According to Plaintiff, “Anthony McGinty continues his
abuse in the form of retaliation, abuse of power, extreme
harm and pain and suffering, violations of ADA title ii [which
resulted] in a final order dated October 2, 2020. Granting
Patrick Beesmer sole physical custody [of C.A.B.] and all
decision making power....” Id.
Plaintiff lists several ways Judge McGinty has “denied”
her “reasonable accommodations” and “basic rights.” Id.
at 16-17. For example, she claims Judge McGinty failed
to recuse himself and denied her a fair trial. Id. at 16.
He also denied C.A.B. his “full service therapy dogs since
October 2, 2020.” Id. Judge McGinty denied and restricted
communication between Plaintiff and C.A.B., conspired
with C.A.B.’s and Beesmer's attorneys, and omitted “strong
evidence off the record,” and “pushed several emergency
motions out far past their legal requirements.” Id. at 16-17.
She also complains of “ongoing discrimination.” Id. Plaintiff
also alleges Judge McGinty failed to replace C.A.B.’s
attorney with an “ethical” attorney. Id.

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3

Amato v. McGinty, Not Reported in Fed. Supp. (2022)

*5 She further alleges Judge McGinty lied in the October
2, 2020, Order which cited “concerns” in Plaintiff's home,
without evidence, and falsely stated C.A.B.’s father's home
“has no domestic violence.” Id.
Additionally, on June 3, 2021, Judge McGinty denied
C.A.B.’s “rights to his service dog again” and “showed
preference to fathers” in that he gave C.A.B.’s father a
“courtesy call” when he missed “virtual court” but did not
extend the same courtesy to Plaintiff on March 8, 2021, when
she failed to appear in court. Id. at 16. When she questioned
Judge McGinty, he “falsely” explained that “virtual court is
different from physical Court when someone doesn't show up
we call them.” Id.
Under a section of the amended complaint labeled “Damages”
Plaintiff lists twelve “counts.” Id. at 17-19. Plaintiff also
lists five “counts” under Title II ADA Violations. Id. at 19.
Plaintiff also devotes several pages to what appears to be
excerpts and summaries of what she refers to as “Title II ADA
Case Law re: Accommodations.” See id. at 19-26.
As relief, Plaintiff seeks a temporary restraining order, a
permanent restraining order, and preliminary injunction. Id. at
26, 28. Plaintiff is “seeking injunctive relief and a permanent
restraining order against [Judge McGinty] to stop his abuse
and allow us to have a fair trial with an unbiased Judge
without any connections to him whatsoever to avoid any
further harm.” Id. at 9. She requests declaratory relief “to the
effect” that Defendant's “actions were illegal and violative
of Plaintiff's right to due process of the law and to equal
protection of the laws.” Id. at 28.
Plaintiff seeks damages in the amount of at least $3,000,000.
Id. at 27-28. Plaintiff asks this Court to “assume jurisdiction
over this matter.” Id. Plaintiff also wants this Court to
“restore” her sole custody rights over her minor child. Id. at
28. She also asks for any further relief as the Court shall deem
just and proper. Id. 6
For a complete statement of Plaintiff's claims, reference is
made to the amended complaint. (See generally Dkt. No. 6.)
C. Discussion
Initially, the Court finds the amended complaint fails to
comply with Rules 8 and 10 of the Federal Rules of Civil
Procedure. Rule 8 of the Federal Rules of Civil Procedure

provides that a pleading which sets forth a claim for relief
shall contain, among other things, “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 of this Rule “is to give fair
notice of the claim being asserted so as to permit the adverse
party the opportunity to file a responsive answer [and] prepare
an adequate defense.” Hudson v. Artuz, No. 95 CIV 4768,
1998 WL 832708, *1 (S.D.N.Y. Nov. 30, 1998) (citations
omitted). The statement should be “short and plain” because
“[u]nnecessary prolixity in a pleading places an unjustified
burden on the court and the party who must respond to it
because they are forced to select the relevant material from a
mass of verbiage.” Salahuddin v. Cuomo, 861 F.2d 40, 41-42
(2d Cir. 1998) (quoting 5 C. Wright & A. Miller, Federal
Practice and Procedure § 1281, at 365 (1969)). Moreover,
Rule 10 of the Federal Rules of Civil Procedure provides, in
part:

*6
(b) Paragraphs; Separate
Statements. A party must state its
claims or defenses in numbered
paragraphs, each limited as far
as practicable to a single set of
circumstances.

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 v. Graphtex, 189
F.R.D. 54, 55 (N.D.N.Y. 1999) (quotation marks and citations
omitted).
A complaint that does not comply with these Rules “presents
far too a heavy burden in terms of defendants’ duty to shape a
comprehensive defense and provides no meaningful basis for
the Court to assess the sufficiency of [the plaintiff's] claims,”
and may properly be dismissed by the court. Gonzales v. Wing,
167 F.R.D. 352, 355 (N.D.N.Y. 1996). “Dismissal, however,
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.” Artuz, 1998 WL
832708, at *2 (internal quotation marks omitted).
The amended complaint contains rambling legal arguments,
numerous disjointed sentences, and repeated conclusory
allegations. (Dkt. No. 6.) Moreover, while the amended
complaint contains some numbered sections, the numbering is
of limited value since some of the numbered sections contain

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Amato v. McGinty, Not Reported in Fed. Supp. (2022)

numerous sentences, and/or contain multiple paragraphs, and/
or are repeated. Id. As a result, it is difficult for the Court
to determine the sufficiency of Plaintiff's allegations, and it
would be difficult for Defendant to shape a comprehensive
defense. As such, the amended complaint fails to comply with
Rules 8 and 10 of the Federal Rules of Civil Procedure.
However, the Court refrains from recommending dismissal on
this basis alone because the amended complaint does not quite
rise to the level of being “so confused, ambiguous, vague,
or otherwise unintelligible that its true substance, if any, is
well disguised.” Rather, this action represents yet another
lawsuit whereby Plaintiff is complaining of Defendant's
handing of and decisions issued in family court proceedings.
Construed liberally, Plaintiff seeks to nullify family court and
custody determinations issued by Defendant, and asks this
Court to restore her sole custody, requests declaratory and
injunctive relief, and monetary compensation. As such, in
accordance with 28 U.S.C. § 1915(e), the Court will review
the sufficiency of the amended complaint.

Section 1983 provides redress for a deprivation of federally
protected rights by persons acting under color of state law.
42 U.S.C. § 1983; Flagg Bros., Inc. v. Brooks, 436 U.S. 149,
155-57 (1978). To state a claim under Section 1983, a plaintiff
must allege both that: (1) a right secured by the Constitution
or laws of the United States was violated, and (2) the right
was violated by a person acting under the color of state law,
or a “state actor.” West v. Atkins, 487 U.S. 42, 48-49 (1988).
As noted, Plaintiff has named Judge McGinty as the
sole defendant in his “judicial” and “individual” capacity.
However, and as Plaintiff was previously informed in
the related action, Plaintiff's Section 1983 claims against
Judge McGinty are barred by the Eleventh Amendment and

1. Minor Plaintiff

judicial immunity. 7 See Orr v. McGinty, No. 1:17-cv-1280
(GLS/TWD), ECF Dkt. No. 47 at *4 (dismissing Amato's
Section 1983 claims against Judge McGinty with prejudice);
Treistman v. McGinty, No. 1:16-cv-1403, 2018 WL 4078262,
at *1 (N.D.N.Y. Aug. 27, 2018) (finding the plaintiff's claims
against the individual defendants in their official capacity
as Family Court employees are barred by the Eleventh
Amendment); see also Amato v. McGinty, 2017 WL 4083575,
at *4. The same result is required here.

As Plaintiff is aware, an individual “who has not been
admitted to the practice of law may not represent anybody
other than himself.” Amato v. McGinty, No. 1:17-CV-00593
(MAD/ATB), 2017 WL 4083575, at *4 (N.D.N.Y. Sept. 15,
2017) (quoting Guest v. Hansen, 603 F.3d 15, 20 (2d Cir.
2010) (citing Lattanzio v. COMTA, 481 F.3d 137, 139 (2d Cir.
2007))); see also Orr v. McGinty, No. 1:17-cv-1280 (GLS/
TWD), ECF Dkt. No. 47 at 1 n.1, 13 (plaintiff-mothers cannot
bring an action “as next of friend for their minor children”
and directing the Clerk to amend the caption to remove all
references to the minor children). Similarly, “a non-attorney
parent must be represented by counsel in bringing an action
on behalf of his or her child.” Amato v. McGinty, 2017 WL
4083575, at *4 (quoting Cheung v. Youth Orchestra Found. of
Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990)).

Judges are absolutely immune from suit for damages
for any actions taken within the scope of their judicial
responsibilities. Mireles v. Waco, 502 U.S. 9, 11 (1991).
Generally, “acts arising out of, or related to, individual cases
before the judge are considered judicial in nature.” Bliven v.
Hunt, 579 F.3d 204, 210 (2d Cir. 2009). “Even allegations of
bad faith or malice cannot overcome judicial immunity.” Id. at
209 (citations omitted). This is because, “[w]ithout insulation
from liability, judges would be subject to harassment and
intimidation [.]” Young v. Selsky, 41 F.3d 47, 51 (2d Cir. 1994).
In addition, Section 1983 provides that “in any action brought
against a judicial officer for an act or omission taken in such
officer's judicial capacity, injunctive relief shall not be granted
unless a declaratory decree was violated or declaratory relief
was unavailable.” 42 U.S.C. § 1983.

*7 Therefore, the Court does not construe the amended
complaint to include any claims or causes of action brought on
behalf of C.A.B. The Court also recommends that the Clerk
be directed to amend the docket to remove all references to
C.A.B.

Judicial immunity does not apply when the judge takes action
“outside” his judicial capacity, or when the judge takes action
that, although judicial in nature, is taken “in absence of
jurisdiction.” Mireles, 502 U.S. at 9-10; see also Bliven, 579
F.3d at 209-10 (describing actions that are judicial in nature).
But “the scope of [a] judge's jurisdiction must be construed
broadly where the issue is the immunity of the judge.” Stump
v. Sparkman, 435 U.S. 349, 356 (1978).

2. Section 1983

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5

Amato v. McGinty, Not Reported in Fed. Supp. (2022)

*8 As detailed above, Plaintiff has brought several
allegations against Judge McGinty, including that he
violated her constitutional rights, conspired with other
individuals, endangered the welfare of C.A.B., denied her
“accommodations,” and retaliated against her for being
outspoken about Judge McGinty's purported abuses and
discrimination against mothers and children. However, all
of the acts described in the amended complaint arise out of
family court proceedings before Judge McGinty, the functions
complained of were ones normally performed by a judge, and
Plaintiff was a party who dealt with Judge McGinty in his
judicial capacity. Plaintiff has not alleged that Judge McGinty
took nonjudicial actions or that he acted in the absence of
jurisdiction. Notwithstanding Plaintiff's allegations that Judge
McGinty made improper adverse rulings against Plaintiff
during the custody proceedings with malice or in retaliation
for her “exposing” abuses in Family Court, Judge McGinty
was still performing judicial functions and presiding over
Plaintiff's custody action in Ulster County Family Court.
As stated above, a judge does not lose his or her judicial
immunity because he is accused of acting with malice or
corruptly. Accordingly, Judge McGinty is entitled to judicial
immunity. See Mireles, 502 U.S. at 12-13; Bliven, 579 F.3d
at 210.
Judge McGinty is also protected under sovereign immunity.
In Gollomp v. Spitzer, the Court held that the New York
Unified Court System is an “arm of the State” and affirmed
the dismissal of a Section 1983 claim against a judge under
sovereign immunity. 568 F.3d 355, 365-68 (2d Cir. 2009).
Likewise, Plaintiff has filed her complaint against Judge
McGinty, a member of the Ulster County Family Court,
which is part of the New York Unified Court System. N.Y.
Const. Art. VI, §§ 1, 13. All of Judge McGinty's alleged
constitutional violations occurred while he acted within his
official capacity as a Family Court judge in adjudicating a
custody dispute. Therefore, all claims against Judge McGinty
should be dismissed, because “a suit against a state official
in his official capacity is, in effect, a suit against the
state itself, which is barred.” Walker v. Fam. Ct. Judge
Catherine Cholakis, No. 1:19-CV-1288 (LEK/CFH), 2020
WL 3503158, at *7 (N.D.N.Y. June 29, 2020) (citations
omitted).
Moreover, Plaintiff is not entitled to injunctive relief because
she “allege[d] neither the violation of a declaratory decree,
nor the unavailability of declaratory relief.” See Montero v.
Travis, 171 F.3d 757, 761 (2d Cir. 1999). Nor is Plaintiff
entitled to declaratory relief because she alleges only past

conduct and does not seek to prevent an ongoing or future
violation of federal law. See Shtrauch v. Dowd, 651 F. App'x
72, 74 (2d Cir. 2016) (citing Blanciak v. Allegheny Ludlum
Corp., 77 F.3d 690, 698 (3d Cir. 1996) (concluding that relief
sought was not prospective where the “specific allegations
target[ed] past conduct” and the “remedy [was] not intended
to halt a present, continuing violation of federal law”)).
The Court therefore recommends dismissing Plaintiff's
Section 1983 claims against Judge McGinty under the
doctrines of judicial and sovereign immunity and as frivolous.
See 28 U.S.C. § 1915(e)(2)(B)(i), (iii); see also Montero, 171
F.3d at 760 (“A complaint will be dismissed as ‘frivolous’
when ‘it is clear that the defendants are immune from suit.’
” (quoting Neitzke, 490 U.S. at 327)).

3. Title VII
Title VII provides that “[i]t shall be unlawful employment
practice for an employer ... to fail or refuse to hire or to
discharge any individual, or otherwise to discriminate against
any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual's race, color, religion, sex or national origin.” 42
U.S.C. § 2000e-2(a); see Vega v. Hempstead Union Sch. Dist.,
801 F.3d 72, 86 (2d Cir. 2015) (A plaintiff asserting a Title
VII discrimination claim must allege facts showing that “(1)
the employer took adverse action against him and (2) his race,
color, religion, sex, or national origin was a motivating factor
in the employment decision.”).
Here, Plaintiff claims in conclusory fashion that Judge
McGinty “discriminates” against women in violation of
Title VII. Plaintiff does not, however, allege employment
discrimination or that she is or was an employee of Judge
McGinty and, therefore, the claim is frivolous. 8 See Jones
v. Thomas, No. 20-CV-5581, 2020 WL 5077026, at *4
(S.D.N.Y. Aug. 27, 2020) (dismissing plaintiff's claims
pursuant to Title VII where the plaintiff did not allege that
he is or was an employee of any of the defendants); BasoraJacobs v. Palevsky, No. 20-CV-1675, 2020 WL 3868710, at
*2 (E.D.N.Y. July 10, 2020) (dismissing the plaintiff's Title
VII claims because “[t]he complaint does not list Plaintiff's
employer as a defendant in the case caption.”). Since Title VII
claims are to be raised against a plaintiff's employer, there is
no proper Title VII defendant in this case. Militinska-Lake v.
Kirnon, No. 1:20-CV-443 (TJM/CFH), 2021 WL 3569807, at
*9 (N.D.N.Y. Aug. 11, 2021) (“As a general rule, the proper

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Amato v. McGinty, Not Reported in Fed. Supp. (2022)

defendant in a Title VII case against a State entity is the actual
department or agency that employs the plaintiff.”) (citation
omitted).
*9 Accordingly, the Court recommends that Plaintiff's Title
VII claims against Judge McGinty be dismissed.

4. ADA
Title II of the ADA provides that “no qualified individual
with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of
the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.” 42 U.S.C.
§ 12132. To plead an ADA claim, a plaintiff must allege:
“(1) that [s]he is a qualified individual with a disability;
(2) that [s]he was excluded from participation in a public
entity's services, programs or activities or was otherwise
discriminated against by a public entity; and (3) that such
exclusion or discrimination was due to [her] disability.”
Fulton v. Goord, 591 F.3d 37, 43 (2d Cir. 2009) (internal
quotation marks and citation omitted).
As discussed, Plaintiff has utilized a form ADA complaint,
largely alleges disability due to PTSD, and claims Judge
McGinty denied her “accommodations” and “retaliated”
against her during family court proceedings. For reasons
set forth below, Plaintiff's purported disability-based claims
under the ADA must also be dismissed.
First, to the extent Plaintiff asserts ADA claims against Judge
McGinty in his individual capacity, such claims fail as a
matter of law because there is no individual liability under
Title II of the ADA. See Garcia v. SUNY Health Scis. Ctr.
of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001) (holding that
defendants cannot be sued in their individual capacities for
violating Title II of the ADA); see also Spiegel v. Schulmann,
604 F.3d 72, 79 (2d Cir. 2010) (“the retaliation provision of
the ADA ... cannot provide for individual liability”); Myers
v. N.Y.-Dep't of Motor Vehicles, No. 06-CV-4583, 2013 WL
3990770, at *9 (E.D.N.Y. Aug. 5, 2013) (“[N]umerous district
courts in this [C]ircuit have persuasively held that there is
no individual liability under Title I or Title II of the ADA,
regardless of whether the claim is brought in an individual
or official capacity.”); Netti v. Ayers, No. 17-CV-976, 2017
WL 7542494, at *18 (Oct. 5, 2017) (“individuals cannot be
held liable under the ADA”) (citing cases). Thus, Plaintiff's

ADA claims against Judge McGinty, insofar as he is sued in
his individual capacity, must be dismissed. 9
Even if the Court assumes for purposes of initial review only,
that Plaintiff was disabled during the state court proceedings
within the meaning of the ADA, and Judge McGinty was
a proper defendant in his official capacity, 10 her assertions
do not show that Judge McGinty discriminated or retaliated
against her because of her PTSD. It is not enough for Plaintiff
to state that she is disabled and that bad things happened to
her in the state court proceedings; she must allege facts from
which a reasonable trier of fact could infer that these things
happened to her because of discrimination on the basis of
her disability. The use of “buzz words” such as “disability,”
“accommodation,” and “retaliation” does not cure a pleading
defect such as the one herein. See Barr v. Abrams, 810 F.2d
358, 362 (2d Cir. 1986) (the Second Circuit has repeatedly
held, “complaints 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”). She
does not allege any facts suggesting a plausible connection
between her alleged PTSD and “LAS” and the actions that
were taken against her in the state court proceedings. Rather,
Plaintiff merely states she “has no recollection of being
handed a slip” regarding the March 8, 2020, court date that
she missed. Moreover, Plaintiff's passing reference that she
“requested audio of the court hearings so that I can have time
to listen to prepare as pro se for continuing proceedings” or
that Judge McGinty “refused to give me enough time to get
proper expensive counsel needed to fight such a traumatic 3rd
trial” are insufficient to state a claim. (Dkt. No. 6 at 13, 14.)
*10 In light of the foregoing, the Court recommends
dismissing Plaintiff's ADA claims, if any, against Judge
McGinty. See 28 U.S.C. § 1915(e)(2)(B)(ii).

5. Domestic Relations Exception, RookerFeldman 11 Doctrine, and Younger 12 Abstention
Due to the nature of Plaintiff's amended complaint, it is
difficult to precisely determine exactly which doctrines apply,
but based upon the relief sought, even if Plaintiff had sued an
appropriate defendant, her claims are also likely barred by the
Rooker-Feldman doctrine, domestic relations exception, and/
or Younger abstention.

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Amato v. McGinty, Not Reported in Fed. Supp. (2022)

a. Domestic Relations Exception
Under the domestic relations exception to the jurisdiction of
federal courts, cases involving divorce, alimony, and child
custody remain outside federal court jurisdiction. Marshall
v. Marshall, 547 U.S. 293, 308 (2006). This exception is
based upon a policy dictating that the states have traditionally
adjudicated marital and child custody disputes, developing
“competence and expertise in adjudicating such matters,
which federal courts lack.” Thomas v. N.Y. City, 814 F. Supp.
1139, 1146 (E.D.N.Y. 1993).
Here, in order to return custody of C.A.B. to Plaintiff, or to
“enjoin” the state court's orders, this Court would have to redetermine Judge McGinty's decision in the custody matter.
This would also involve resolving factual disputes regarding
custody and visitation. This court is divested of jurisdiction to
make such determinations. See Ankenbrandt v. Richards, 504
U.S. 689, 703 (1992); Hernstadt v. Hernstadt, 373 F.2d 316,
317 (2d Cir. 1967) (it has been uniformly held that federal
courts do not adjudicate cases involving the custody of minors
and rights of visitation); Sobel v. Prudenti, 25 F. Supp. 3d
340, 353 (E.D.N.Y. 2014) (the domestic relations exception
“divests the federal courts of power to issue divorce, alimony,
and child custody decrees”). Accordingly, to the extent the
amended complaint is seeking a child custody decree from the
Court, the court lacks jurisdiction to adjudicate such a claim.
See, e.g., Amato v. McGinty, No. 17-CV-593 (MAD/ATB),
2017 WL 9487185, at *8 (N.D.N.Y. Jun. 6, 2017) report and
recommendation adopted by 2017 WL 4083575 (N.D.N.Y.
Sept. 15. 2017).

b. Rooker-Feldman Doctrine
In the event the relevant underlying state court proceedings
are concluded, such claims may be barred by the RookerFeldman doctrine. This doctrine divests the federal court of
jurisdiction to consider actions that seek to overturn state
court judgments. Fernandez v. Turetsky, No. 12-CV-4092,
2014 WL 5823116, at *3 (E.D.N.Y. Nov. 7, 2014) (citing
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S.
280, 284 (2005); Dorce v. City of New York, 2 F.4th 82, 101
(2d Cir. 2021) (“The Rooker-Feldman doctrine bars federal
district courts from hearing cases that in effect are appeals
from state court judgments, because the Supreme Court is the
only federal court with jurisdiction over such cases.”)). The
doctrine also bars the federal court from considering claims

that are “inextricably intertwined” with a prior state court
determination. Fernandez v. Turetsky, 2014 WL 5823116, at
*3 (quoting Johnson v. Smithsonian Inst., 189 F.3d 180, 185
(2d Cir. 1999)).
*11 The Rooker-Feldman doctrine applies where the federal
court plaintiff: (1) lost in state court, (2) complains of injuries
caused by the state court judgment, (3) invites the district
court to review and reject the state court judgment, and
(4) commenced the district court proceedings after the state
court judgment was rendered. Vossbrinck v. Accredited Home
Lenders, Inc., 773 F.3d 423, 426 (2d Cir. 2014).
Here, it appears Plaintiff “lost” in state court, complains of
injuries caused by the state court judgments, and asks this
Court to invalidate the state court's judgments regarding child
custody. See Dkt. No. 6 at 29. Thus, as currently drafted,
the amended complaint is likely barred under the RookerFeldman doctrine.

c. Younger Abstention
In the event the underlying state court proceedings remain
pending, Plaintiff's request for this Court's involvement
may also implicate the Younger abstention doctrine. See
generally Younger v. Harris, 401 U.S. 37 (1971). Under the
Younger doctrine, “federal courts [must] abstain from taking
jurisdiction over federal constitutional claims that involve
or call into question ongoing state proceedings.” Diamond
“D” Constr. Corp. v. McGowan, 282 F.3d 191, 198 (2d Cir.
2002); see also Huffman v. Pursue, Ltd., 420 U.S. 592, 602
n.16 (1975) (extending the equitable principles that required
abstention with respect to injunctive relief in Younger apply
to requests for declaratory relief as well).
In Sprint Communications, Inc. v. Jacobs, 571 U.S. 69 (2013),
the Supreme Court clarified that the Younger doctrine is
limited to three exceptional circumstances, including (1)
state criminal prosecutions; (2) civil enforcement, or “quasicriminal,” proceedings; and (3) “civil proceedings involving
certain orders that are uniquely in furtherance of the state
courts’ ability to perform their judicial functions.” Id. at
72-73. “[T]here can be no doubt that a custody dispute ...
raises important state interests.” Graham v. N.Y. Ctr. for
Interpersonal Dev., No. 15-CV-459, 2015 WL 1120121,
at *2-3 (E.D.N.Y. Mar. 12, 2015) (holding that plaintiff's
claim for injunctive relief was barred by Younger when the

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Amato v. McGinty, Not Reported in Fed. Supp. (2022)

plaintiff sought to challenge an ongoing family court custody
proceeding) (citation omitted).
Accordingly, to the extent that the child custody issues are
continuing in Family Court, the Court should abstain from
interfering with that process. See, e.g., Cogswell v. Rodriguez,
304 F. Supp. 2d 350, 357 (E.D.N.Y. 2004) (applying Younger
abstention in child support matter); Lomtevas v. New York
State, No. 03-CV-2359, 2003 WL 22937688, at *2 (E.D.N.Y.
Nov. 13, 2003) (same).
IV. LEAVE TO AMEND
Generally, when the court dismisses a pro se complaint sua
sponte, the court should afford the plaintiff the opportunity to
amend at least once, however, leave to replead may be denied
where any amendment would be futile. Hill v. Curcione, 657
F.3d 116, 123-24 (2d Cir. 2011); Ruffolo v. Oppenheimer &
Co., 987 F.2d 129, 131 (2d Cir. 1993). Futility is present when
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) (citation omitted).
Here, better pleading could not cure the Court's lack of subject
matter jurisdiction based on the immunities described above,
which appear to apply to all claims except for Plaintiff's ADA
claim seeking prospective injunctive relief.
*12 Nevertheless, in light of Plaintiff's pro se status and
in an abundance of caution, as was the case in the related
action, better pleading—addressing the deficiencies outlined
above—could potentially save Plaintiff's ADA claim for
prospective injunctive relief against Judge McGinty from
being sua sponte dismissed on initial review. See, e.g., Orr
v. McGtiny, No. 1:17-cv-1280 (GLS/TWD), ECF Dkt. No.
47 at 10-11. 13 As such, the Court recommends this claim be
dismissed without prejudice and with leave to amend. 14
V. PLAINTIFF'S ADDRESS
Under this Court's rules, an unrepresented litigant is under a
duty to inform the Court of any address changes in writing.
L.R. 10.1(c)(2). For the orderly disposition of cases, it is
essential that litigants honor their continuing obligation to
keep the Court informed of address changes. To date, all the
Court's Orders mailed to Plaintiff's address on file have been
returned as undeliverable. (Dkt. Nos. 10, 12, 15.)

In an extraordinary display of special solicitude to Plaintiff
as a pro se litigant, the Clerk was directed to mail a one-time
courtesy copy of each Order at the confidential and redacted
address indicated on the envelope of Plaintiff's submissions to
the Court and as verbally provided to the Clerk on December
1, 2021. (See generally Docket Report; see Dkt. Nos. 11,
14. 15 ) However, Plaintiff must file a change of address IN
WRITING within thirty days, and she must continue to submit
any address changes to the Court as long as her action is
pending. “Failure to notify the Court of a change of address
in accordance with L.R. 10.1(c)(2) may result in the dismissal
of any pending action.” L.R. 41.2(b).
VI. CONCLUSION
WHEREFORE, after carefully considering this matter, and
for the reasons explained above, it is hereby
ORDERED that Plaintiff's IFP application (Dkt. No. 16) is
GRANTED; 16 and it is further
*13 RECOMMENDED that Plaintiff's amended complaint
(Dkt. No. 6) be sua sponte dismissed in its entirety pursuant
to 28 U.S.C. § 1915(e); and it is further
RECOMMENDED that all claims be DISMISSED WITH
PREJUDICE except that Plaintiff's ADA claim for
prospective injunctive relief be DISMISSED WITHOUT
PREJUDICE AND WITH LEAVE TO REPLEAD; and it
is further
RECOMMENDED that the Clerk be directed to amend the
docket to remove all references to C.A.B., and it is further
ORDERED that Plaintiff must file a CHANGE OF
ADDRESS within THIRTY DAYS of the date of the
Report-Recommendation, and she must continue to submit
any address changes to the Court as long as this action is
pending; failure to notify the Court of a change of address in
accordance with L.R. 10.1(c)(2) may result in the dismissal
of any pending action; and it is further
ORDERED that the Clerk mail a copy of this Order and
Report-Recommendation to Plaintiff at the address listed on
the docket and to mail a FINAL one-time courtesy copy to the
confidential and redacted address indicated on the envelope
of Dkt. No. 16 and as verbally provided to the Clerk on
December 1, 2021.

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Pursuant to 28 U.S.C. § 636(b)(1), Plaintiff has fourteen
days within which to file written objections to the
foregoing report. 17 Such objections shall be filed with
the Clerk of the Court. FAILURE TO OBJECT TO
THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. 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)); 28 U.S.C. §
636(b)(1) (Supp. 2013); Fed. R. Civ. P. 72, 6(a).
All Citations
Not Reported in Fed. Supp., 2022 WL 226798

Footnotes
1

Amato was terminated as party plaintiff in the related action by Order entered August 7, 2019. See Orr v.
McGinty, 1:17-cv-1280 (GLS/TWD), ECF Dkt. No. 73. The Court assumes familiarity with the related case.

2

Page references to documents identified by docket number refer to the numbers assigned by the CM/ECF
docketing system maintained by the Clerk's Office. Unless otherwise indicated, excerpts from the record are
reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not
been corrected.

3

Plaintiff explains the book “talks about the ongoing abuse of Anthony McGinty and his ongoing abuse to my
family for exposing him. I have been publicly outspoken long before he was put on my case in 2016. I've been
exposing him since 2014 and my best selling book was published in 2018. He refuses to recuse from this
case which I orally explained pre trial in 2019 that I would not only never receive a fair trial but that having to
come before him after the tremendous harm he caused my son....” (Dkt. No. 6 at 14.)

4

Plaintiff appears to be referring to Defendant, along with “Child Attorney Amy Ingram and opposing Counsel
Andy Gilday.” (Dkt. No. 6 at 11.) The Court notes Amy Ingram was named as a defendant in the related case
and all claims asserted against her were dismissed with prejudice. See Orr v. McGinty, No. 1:17-cv-1280
(GLS/TWD), ECF Dkt. No. 47 at 13. The Court takes judicial notice that Amato, along with others, also filed
suit against Judge McGinty, Amy Ingram, and Attorney Andrew Gilday (for his role as assigned counsel to
Patrick Beesmer, C.A.B.’s father), Beesmer, and another individual in a previous action, also captioned Amato
v. McGinty, 1:17-cv-00593 (MAD/ATB), ECF Dkt. No. 1. In that case, although Amato paid the filing fee,
United States Magistrate Judge Baxter recommended, inter alia, that Amato's Section 1983 claims against
Judge McGinty be dismissed with prejudice as barred by judicial immunity. See id., ECF Dkt. No. 11. United
States District Judge D'Agostino adopted the report-recommendation in its entirety and judgment was entered
accordingly on September 15, 2017. See id. at ECF Dkt. Nos. 19, 20.

5

However, and contrary to Plaintiff's assertion, in the related action she was not afforded the “right to replead
and add current ongoing violations” rather, Amato's Section 1983 claims against Judge McGinty were
dismissed with prejudice and her Title II ADA claims were dismissed for failure to state a claim upon which
relief may be granted. Orr v. McGinty, 1:17-CV-01280 (GLS/TWD), ECF Dkt. Nos. 47, 74.

6

Plaintiff also seeks attorneys fees pursuant to 42 U.S.C. § 1988 and the Equal Access to Justice Act. (Dkt.
No. 6 at 28.) However, as she was informed in the related action, pro se plaintiffs are not entitled to such
fees. Orr v. McGinty, No. 1:17-cv-01280, ECF Dkt. No. 47 at 3 n.6 (citing SEC v. Price Waterhouse, 41 F.3d
805, 808 (2d Cir. 1994)).

7

Judicial immunity shields judges from suit to the extent that they are sued in their individual capacities. See
Ying Jing Gan v. City of N.Y., 996 F.2d 522, 529 (2d Cir. 1993); Martinez v. Queens Cty. Dist. Attorney, No.

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12-CV-06262, 2014 WL 1011054, at *8 n. 8 (E.D.N.Y. Mar. 17, 2014), aff'd, 596 F. App'x 10 (2d Cir. 2015);
McKnight v. Middleton, 699 F.Supp.2d 507, 521-25 (E.D.N.Y. 2010), aff'd, 434 F. App'x 32 (2d Cir. 2011).
The Eleventh Amendment, on the other hand, shields judges from suit to the extent that they are sued in their
official capacities. See Ying Jing Gan, 996 F.2d at 529 (“To the extent that ... a claim is asserted against the
state official in his official capacity, he may assert the state's Eleventh Amendment immunity against suit.”).
8

Moreover, “[i]t is axiomatic that ‘Title VII does not impose liability on individuals.’ ” Hamlett v. City of
Binghamton, No. 3:20-CV-880 (GLS/ML), 2021 WL 3723091, at *2 (N.D.N.Y. Aug. 23, 2021) (quoting Lore
v. City of Syracuse, 670 F.3d 127, 169 (2d Cir. 2012) (citations omitted)); see also Golden v. Syracuse Reg'l
Airport Auth., No. 5:20-CV-1566 (MAD/TWD), 2021 WL 485731, at *1 (N.D.N.Y. Feb. 10, 2021) (“[I]ndividuals
are not subject to liability under Title VII.”) (quotation marks and citation omitted).

9

The Court notes judicial immunity also extends to Plaintiff's ADA claims for damages. See Orr v. McGinty,
No. 1:17-cv-01280, Dkt. No. 47 at 5 (citing Brooks v. Onondaga Cty. Dep't of Children & Family Servs., 5:17CV-1186, 2018 WL 2108282, at *4 (N.D.N.Y. Apr. 9, 2018) (collecting cases)).

10

As observed in the related case, “It is questionable whether defendants, even when sued in their official
capacities, are public entities.” Orr v. McGinty, No. 1:17-cv-01280, Dkt. No. 74 at 4 n.4 (citing Santiago v.
Garcia, 70 F. Supp. 2d 84, 89 (D. P.R. 1999) (holding state court judge sued in official capacity was not “public
entity” under Title II); but see Shollenberger v. N.Y. State Unified Court Sys., 18 CV 9736, 2019 WL 2717211,
at *5 (S.D.N.Y. June 28, 2019) (allowing ADA claims seeking prospective injunctive relief to proceed against
Chief Judge of the State of New York and Chief Administrator of the New York State Unified Court System
because “a plaintiff need only allege the defendant[s] ha[ve] responsibility for the alleged conduct and the
ability to redress the alleged violations”)).

11

District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983) and Rooker v. Fidelity Trust Co., 263
U.S. 413, 414-17 (1923).

12

Younger v. Harris, 401 U.S. 37 (1971).

13

At this juncture, the Court expresses no opinion on the sufficiency of any such claim.

14

If the District Court adopts this Report-Recommendation, and if Plaintiff chooses to file a second amended
complaint, the pleading must comply with Rules 8 and 10 of the Federal Rules. The revised pleading will
replace the amended 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.”). The revised pleading should not attempt
to resurrect any claims dismissed with prejudice in this action and/or claims brought or could have been
brought in the related case. See Lopez v. Jet Blue Airways, No. 12-CV-0057, 2012 WL 213831, at *2 (E.D.N.Y.
Jan. 24, 2012) (“Under the doctrine of res judicata, once a final judgment has been entered on the merits
of a case, that judgment will bar any subsequent litigation by the same parties or those in privity with them
concerning the transaction, or series of connected transactions, out of which the [first] action arose.”).

15

While not entirely clear to the Court, it appears this “confidential” address differs from Plaintiff's residence,
while the PO Box on file is the business address for Plaintiff's “home office” Punished 4 Protecting. (See
Dkt. No. 16.)

16

Plaintiff should note that although her IFP application has been granted, she will still be required to pay fees
that she may incur in this action, including copying and/or witness fees.

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11

Amato v. McGinty, Not Reported in Fed. Supp. (2022)

17

If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three
additional days will be added to the fourteen-day period, meaning that you have seventeen days from the
date the Order and Report-Recommendation 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. 6(a)(1)(C).

End of Document

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12

Walker v. O'Connor, Not Reported in Fed. Supp. (2022)

2022 WL 2805462
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Alisha Clark WALKER, Plaintiff,
v.
Dr. Mary O'CONNOR, Defendant.
1:22-CV-581
|
Signed July 18, 2022

to amend. Dkt. No. 4. Although Judge Dancks observed that
plaintiff's claims were almost certainly barred by various
jurisdictional or immunity principles, in light of plaintiff's
pro se status Judge Dancks concluded that plaintiff should be
given an opportunity to amend. Id.
Plaintiff has not filed objections, and the time period in which
to do so has expired. See Dkt. No. 4. Upon review for clear
error, the R&R will be accepted and adopted in all respects.
See FED. R. CIV. P. 72(b).
Therefore, it is

Attorneys and Law Firms

ORDERED that

ALISHA CLARK WALKER, Plaintiff, Pro Se, 757 Taborton
Road, Sand Lake, NY 12153.

1. The Report & Recommendation is ACCEPTED;
2. Plaintiff's complaint is DISMISSED with leave to amend;

ORDER ON REPORT & RECOMMENDATION
DAVID N. HURD, United States District Judge
*1 On June 2, 2022, pro se plaintiff Alisha Clark Walker
(“plaintiff”) filed this action alleging that defendant, a
private individual ordered by a state court to render forensic
psychological evaluations in an underlying child custody
dispute, discriminated against her. Dkt. No. 1. Along with her
complaint, plaintiff sought leave to proceed in forma pauperis
(“IFP Application”). Dkt. No. 2.
On June 29, 2022, U.S. Magistrate Judge Thérèse Wiley
Dancks granted plaintiff's IFP Application for the purpose of
an initial review and advised by Report & Recommendation
(“R&R”) that plaintiff's complaint be dismissed with leave
End of Document

3. Plaintiff shall have thirty days from the date of this
Order in which to amend her pleading in accordance with
the instructions set forth in Judge Dancks's Report &
Recommendation and this Order; and
4. If plaintiff does not file an amended complaint within this
thirty-day period, the Clerk of the Court shall enter a judgment
accordingly and close the file without further Order of this
Court.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2022 WL 2805462
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1

Dudley v. Montaque, Slip Copy (2024)

2024 WL 1464346
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Ellis Davon DUDLEY, II, Plaintiff,
v.
Myra MONTAQUE, Defendant.
5:24-cv-0223 (BKS/TWD)
|
Signed April 4, 2024
Attorneys and Law Firms
ELLIS DAVON DUDLEY, II, Plaintiff, pro se, PO Box 7124,
Syracuse, NY 13261.

REPORT-RECOMMENDATION AND ORDER
THÉRÈSE WILEY DANCKS, United States Magistrate
Judge
I. INTRODUCTION
*1 The Clerk has sent to the Court for review five
submissions filed by pro se plaintiff Ellis Davon Dudley, II
(“Plaintiff”), as well as a motion to proceed in forma pauperis
(“IFP”). Dkt. No. 1; Dkt. No. 2. For the reasons stated below,
the Court recommends Plaintiff's pleadings be dismissed.
II. IFP APPLICATION
Plaintiff has not paid the filing fee for this action and seeks
leave to proceed IFP. Dkt. No. 2. Upon review, Plaintiff's IFP
application demonstrates economic need. See id. Therefore,
he is granted permission to proceed IFP.
III. PLAINTIFF'S SUBMISSIONS
Plaintiff's first submission is a document labeled “NOTICE
OF REMOVAL” which purports to remove to this Court “all
claims and causes of action in the civil action styled IV-D
Support Myra Montaque against Ellis Dudley Jr., File# 31274
Docket# F-06437-22 ... now dismissed in the Onondaga
County Family Court .... pursuant to 28 U.S.C. § 1331, 28
U.S.C. 1441, 42 U.S.C. 660.” Dkt. No. 1. 1 , 2 He next lists
fifteen “grounds for removal” which appear to invoke this
Court's federal question jurisdiction under 28 U.S.C. § 1331.
See id. at 1-2. The document further states “A copy of all

process, pleadings and orders served upon defendants to date
in the State Court Attached are all instruments filed under this
situation.” Id. at 2.
Plaintiff's next two submissions appear to contain, inter alia,
materials related to proceedings between himself and Myra
Montaque in Onondaga County Family Court. See generally,
Dkt. Nos. 1-1, 1-2. The filings contain, but are not limited
to: notices and summons to appear; an Order of Support by
Default, dated April 11, 2023; findings of fact; notices of
motions; orders dismissing petitions to vacate; a notice of
appeal; a brief to the Appellate Division, Fourth Department;
and transcripts. See id.
Plaintiff also submitted a document captioned
“CERTIFICATE OF SERVICE BY MAIL.” See Dkt. No.
1-3 at 1. The document, dated February 14, 2024, indicates
Plaintiff served a copy of the “Notice of Removal and
Exhibits” on “Myra Montaque” by depositing a copy of the
documents in a mailbox. Id.
Finally, Plaintiff submitted a “CIVIL COVER SHEET.” See
Dkt. No. 1-4 at 1. He indicated this Court has federal question
jurisdiction over the present matter. Id. In the nature of
suit portion of the sheet, Plaintiff checked the following
boxes: Negotiable Instrument, Recovery of Overpayment,
Other Contract, Contract Product Liability, Personal Injury
- Product Liability, Other Fraud, Commerce, Administrative
Procedure Act/Review or Appeal of Agency Decision, and
Constitutionality of State Statutes. Id. Plaintiff indicated the
case was removed from state court, identified “42 U.S.C.
1981” as the statute under which he filed, and listed “Contract
Product liability” as a brief description. Id. His sole listed
demand is for “full Disclosures.” Id. Finally, Plaintiff listed
Docket Number “F-02393-21” as a related case before Judge
“Jefferey A Dom.” Id.
IV. STANDARD OF REVIEW
*2 Section 1915 of Title 28 requires a district court
to dismiss an IFP complaint if the action is frivolous or
malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief against a defendant who
is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)
(i)-(iii); Livingston v. Adirondack Beverage Co., 141 F.3d
434, 437 (2d Cir. 1998). The Court must also dismiss a
complaint, or portion thereof, when the Court lacks subject
matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).

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1

Dudley v. Montaque, Slip Copy (2024)

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 arguments that they suggest.”
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75
(2d Cir. 2006) (internal quotation marks and citation omitted).
A claim is frivolous when it “lacks an arguable basis either in
law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989),
abrogated on other grounds Bell Atl. Corp. v. Twombly, 550
U.S. 544 (2007); see also Denton v. Hernandez, 504 U.S.
25, 33 (1992) (holding “a 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.”).
To survive dismissal for failure to state a claim, a complaint
must contain a short and plain statement of the claim showing
that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)
(2). This short and plain statement of the claim must be
“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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). The statement of the claim
must do more than present “an unadorned, the-defendantharmed-me accusation.” Id. It must “give the defendant fair
notice of what the claim is and the grounds upon which it
rests.” Twombly, 550 U.S. at 555 (internal quotation marks
and citations omitted); see also Fed. R. Civ. P. 8(a)(2).
In determining whether a complaint states a claim upon which
relief may be granted, “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) (citations omitted). “[T]he tenet
that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions.” Iqbal, 556
U.S. at 678. “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice.” Id.
Moreover, a court 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.” Gomez v. USAA Fed. Sav. Bank, 171
F.3d 794, 795 (2d Cir. 1999) (citation and internal quotation
marks omitted). However, an opportunity to amend is not

required 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).
V. ANALYSIS
*3 Even affording Plaintiff's filings a liberal construction,
his submissions are difficult to decipher and fail to provide
sufficient factual information for the Court to review or for
the Defendant(s) to have notice of any claims against them.
Therefore, the Court recommends this action be dismissed.
As an initial matter, the Court notes Plaintiff has not filed
a complaint. While a plaintiff's initial filing(s) need not be
titled “complaint,” see, e.g., Muhammad v. Smith, No. 3:13CV-0760 (MAD/DEP), 2013 WL 5652495, at *2 (N.D.N.Y.
Oct. 16, 2013) (construing the plaintiff's initial filings as
a complaint), report and recommendation adopted in part,
rejected in part, 2014 WL 3670609 (N.D.N.Y. July 23, 2014),
here, the Plaintiff's submissions lack any document which
comports with the Federal Rules’ pleading requirements.
Under Rule 8, a pleading must contain, inter alia, “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 of
Rule 8 “is to give fair notice of the 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.” Powell v. Marine
Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995) (citing
Brown v. Califano, 75 F.R.D. 497, 498 (D.D.C. 1977))
(emphasis omitted). Here, the Plaintiff's filings are entirely
devoid of a statement of any claim against Montaque.
Furthermore, Plaintiff's submissions lack factual allegations
against Montaque. From what the Court can glean, Plaintiff's
contentions arise from a petition to vacate an Order of Support
by Default, issued by Onondaga County Family Court, which
was itself dismissed by that Court prior to the commencement
of this action. See Dkt. No. 1 at 1; Dkt. No. 1-1 at 1, 3.
While Dkt. No. 1 references a multitude of federal statutes,
none of Plaintiff's statements constitute allegations against
Montaque. Indeed, the Defendant's name appears only in the
document's caption. Accordingly, dismissal of any “claim”
against Montaque is warranted pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii). See, e.g., Chavis v. Chappius, 618 F.3d 162,
170 (2d Cir. 2010) (Although the Court is “obligated to draw
the most favorable inferences that [the Plaintiff]’s complaint
supports, we cannot invent factual allegations that he has
not pled.”); Drawhorne v. Aloise, No. 6:23-CV-1278 (TJM/

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2

Dudley v. Montaque, Slip Copy (2024)

TWD), 2023 WL 8188396, at *3 (N.D.N.Y. Nov. 27, 2023)
(dismissing the plaintiff's claims against an individual where
the plaintiff listed the individual “as a defendant in the caption
of his complaint but fails to assert any allegations against
him or her.”), report and recommendation adopted, 2024 WL
532572 (N.D.N.Y. Feb. 8, 2024); Joseph v. Annucci, 7:18CV-7197, 2020 WL 409744, at *4 (S.D.N.Y. Jan. 23, 2020)
(dismissing claims against defendants that were “named
in the caption only” where “[t]he body of the Complaint
does not contain any factual allegations naming them, or
indicating that they violated the law or injured Plaintiff in
some manner.”).
In any event, it is likely any claim based on these facts would
be barred. “Under the Rooker-Feldman doctrine, a federal
district court lacks authority to review a final state court
order or judgment where a litigant seeks relief that invites
the federal district court to reject or overturn such a final
state court order or judgment.” Porter v. Nasci, No. 5:24CV-0033 (GTS/TWD), 2024 WL 1142144, at *4 (N.D.N.Y.
Mar. 15, 2024) (citing Exxon Mobil Corp. v. Saudi Basic
Indus. Corp., 544 U.S. 280, 291-92 (2005); Dorce v. City of
New York, 2 F.4th 82, 101 (2d Cir. 2021)). “This includes
when a litigant seeks relief that invites a federal district
court to reject or overturn a final decision of a New York
Family Court as to a child support dispute brought in that
state court.” Id. (citing Sims v. Kaufman, No. 1:23-CV-7927,
2024 WL 757338, at *4 (S.D.N.Y. Feb. 14, 2024)) (additional
citation omitted); see also Fernandez v. Turetsky, No. 14CV-4568, 2014 WL 5823116, at *4 (E.D.N.Y. Nov. 7, 2014)
(collecting cases in support of the proposition that “[c]ourts
have repeatedly invoked the [Rooker-Feldman] doctrine in
cases ... in which plaintiffs challenge family court decrees
setting child support arrears.”), aff'd, 645 F. App'x 103 (2d Cir.
2016). Therefore, to the extent Plaintiff seeks to challenge a
final judgment of Onondaga County Family Court, any such
claim is barred by the Rooker-Feldman doctrine. See, e.g.,
Phillips v. Wagner, No. 1:22-CV-0833 (DNH/ML), 2022 WL
17406092, at *3 (N.D.N.Y. Nov. 4, 2022) (“Plaintiff's claims,
while not entirely clear, seem to challenge an order ... in which
the Family Court determined that he owes child support ....
Plaintiff's claims for relief are barred by the Rooker-Feldman
doctrine ....”) (citation omitted), report and recommendation
adopted, 2022 WL 17403441 (N.D.N.Y. Dec. 2, 2022),
appeal dismissed, No. 23-68, 2023 WL 4445323 (2d Cir. Apr.
25, 2023). 3

alimony, and child custody remain outside this Court's
jurisdiction. See Marshall v. Marshall, 547 U.S. 293, 308
(2006); see also, e.g., Oliver v. Punter, No. 2:22-CV-3580,
2022 WL 3228272, at *3 (E.D.N.Y. Aug. 10, 2022) (“The
domestic relations exception to federal jurisdiction divests
the federal courts of power to issue divorce, alimony and
child custody decrees .... This exception also extends to
child support determinations and the enforcement thereof.”)
(internal quotations and citations omitted). Accordingly, this
Court lacks jurisdiction to adjudicate a claim involving issues
of child custody and support. See Rotondo v. New York,
No. 5:17-CV-1065 (GLS/DEP), 2017 WL 5201738, at *4
(N.D.N.Y. Oct. 31, 2017) (“[I]t is manifestly clear that
plaintiff's claims implicate the domestic-relations exception
to federal court jurisdiction. Plaintiff challenges a statecourt's determination denying him relief from a family court's
child support order, and plaintiff's requests for relief include
removal of the family court proceeding to federal court.”),
report and recommendation adopted, 2017 WL 5198194
(N.D.N.Y. Nov. 9, 2017); Cruz v. New York, No. 5:17CV-0510 (BKS/TWD), 2017 WL 6021838, at *7 (N.D.N.Y.
Oct. 27, 2017), report and recommendation adopted, 2017
WL 6001833 (N.D.N.Y. Dec. 4, 2017) (collecting cases in
support of the proposition that “[c]laims involving child
custody, support, and visitation brought in federal district
court in this Circuit have regularly been dismissed for lack
of subject matter jurisdiction based on the domestic relations
exception to federal jurisdiction.”).
Although this Court has serious doubts, it is not clear whether
Plaintiff could assert a cognizable cause of action against
Defendant by way of a better pleading. Therefore, out of an
abundance of caution and in deference to Plaintiff's pro se
status, the undersigned recommends the action be dismissed
with leave to amend. If Plaintiff chooses to avail himself of an
opportunity to amend, such amended pleading must set forth
a short and plain statement of the facts on which he relies to
support any legal claims asserted, which Plaintiff has a legal
right to pursue, and over which this Court has jurisdiction. Of
course, Plaintiff may also pursue his claims in state court if
appropriate.
VI. CONCLUSION
ACCORDINGLY, it is hereby
ORDERED that Plaintiff's motion to proceed IFP (Dkt. No.

*4 Furthermore, under the domestic relations exception to
the jurisdiction of federal courts, cases involving divorce,

2) is GRANTED, 4 and it is

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3

Dudley v. Montaque, Slip Copy (2024)

RECOMMENDED that Plaintiff's claims be DISMISSED
WITH LEAVE TO AMEND; and it is further
ORDERED that the Clerk provide to Plaintiff a copy of this
Report-Recommendation and Order, along with copies of the
unpublished decisions cited herein in accordance with the
Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d
Cir. 2009) (per curiam).

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 (2d Cir. 1993) (citing Small v. Sec'y of Health
and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72.
IT IS SO ORDERED.

Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen
(14) days within which to file written objections to the

All Citations

foregoing report. 5 Such objections shall be filed with

Slip Copy, 2024 WL 1464346

Footnotes
1

Citations to Plaintiff's submissions will refer to the pagination generated by CM/ECF, the Court's electronic
filing system. Unless otherwise indicated, excerpts from the record are reproduced exactly as they appear in
the original and errors in spelling, punctuation, and grammar have not been corrected.

2

This matter was directly assigned to this Court by text order, see Dkt. No. 4, as deemed related to Dudley
v. Burgos et al., No. 5:24-CV-0223 (BKS/TWD), another action commenced by Plaintiff and assigned to this
Court. The Court also takes judicial notice of a third action currently pending in this district, Dudley v. Hochul
et al., No. 5:24-CV-0048 (DNH/ML), which Plaintiff commenced by filing a complaint on January 11, 2024.

3

Alternatively, “in the event the underlying family court proceedings are pending, such claims are likely barred
by the Younger abstention doctrine.” Walker v. O'Connor, No. 1:22-CV-0581 (DNH/TWD), 2022 WL 2341420,
at *6 (N.D.N.Y. June 29, 2022) (citing Younger v. Harris, 401 U.S. 37 (1971); Amato v. McGinty, No. 1:21CV-0860 (GLS/TWD), 2022 WL 226798, at *11 (N.D.N.Y. Jan. 26, 2022)), report and recommendation
adopted, 2022 WL 2805462 (N.D.N.Y. July 18, 2022). “Younger generally requires federal courts to abstain
from taking jurisdiction over federal constitutional claims that involve or call into question ongoing state
proceedings.” Diamond “D” Const. Corp. v. McGowan, 282 F.3d 191, 198 (2d Cir. 2002) (citing Younger,
401 U.S. at 43-44). “Younger abstention is required when three conditions are met: (1) there is an ongoing
state proceeding; (2) an important state interest is implicated in that proceeding; and (3) the state proceeding
affords the federal plaintiff an adequate opportunity for judicial review of the federal constitutional claims.” Id.
(citing Grieve v. Tamerin, 269 F.3d 149, 152 (2d Cir. 2001)). Courts in this circuit have found these conditions
to be satisfied in matters involving child support issues. See, e.g., Cogswell v. Rodriguez, 304 F. Supp. 2d
350, 357 (E.D.N.Y. 2004) (applying the Younger abstention doctrine to dismiss claims which arose from
“pending state court proceedings involving child support.”) (citation omitted); Tomczyk v. New York Unified
Ct. Sys., No. 2:19-CV-2753, 2019 WL 2437849, at *3 (E.D.N.Y. June 10, 2019) (“[T]his Court abstains under
Younger from interfering in Plaintiff's ongoing state-court proceedings, involving divorce and child support
issues and ‘implicat[ing] a State's interest in enforcing the orders and judgments of its courts.’) (citing Sprint
Communications, Inc. v. Jacobs, 571 U.S. 69, 72-73 (2013)). “Accordingly, to the extent that the child support
issues are continuing in Family Court, the Court should abstain from interfering with that process.” Bowman v.
Morris, No. 8:19-CV-0097 (BKS/DJS), 2019 WL 5150196, at *6 (N.D.N.Y. Apr. 10, 2019) (citations omitted),
report and recommendation adopted, 2019 WL 3759174 (N.D.N.Y. Aug. 9, 2019).

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4

Dudley v. Montaque, Slip Copy (2024)

4

Although Plaintiff's application to proceed IFP has been granted, Plaintiff will still be required to pay fees that
he may incur in the future regarding this action, including, but not limited to, copying and/or witness fees.

5

If you are proceeding pro se and are 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 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).

End of Document

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5

Oliver v. Punter, Not Reported in Fed. Supp. (2022)

2022 WL 3228272
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Albert OLIVER, Plaintiff,
v.
Ayesha PUNTER, Meridith Lafler, Support
Magistrate; Harmon Lutzer, Attorney; Steve Bellone,
Suffolk County Executive; SCCSEB, Defendants.
22-CV-3580(GRB)(LGD)
|
Signed August 10, 2022
Attorneys and Law Firms
Albert Oliver, Huntington Sta., NY, Pro Se.

ORDER

On April 26, 2022 both Support
Magistrate Meridith Lafler and
Attorney Harmon Lutzer held a
support hearing without following the
rules of Due Process. On May 25,
2022, Support Magistrate Meridith
Lafler disregarded Due Process by not
following the rules of Due Process.

DE 1 at 5, ¶ III. Although plaintiff left the space on the form
complaint that calls for a description of any injuries suffered
as a result of the challenged conduct blank, he seeks to recover
a monetary damages award in the sum of $240,222.00 as well
as an order terminating any debts or arrears owed and the
return of funds he already paid together with 6% interest. Id. at
6, ¶¶ IV-V. Plaintiff also requests that the defendants “[l]eave
me alone from this forthwith.” Id. at ¶ V.

GARY R. BROWN, United States District Judge:
*1 On June 16, 2022, pro se plaintiff Albert Oliver
(“plaintiff”) filed a complaint in this Court against
Ayesha Punter (“Punter”), Meridith Lafler (“Lafler”),
Harmon Lutzer (“Lutzer”), Suffolk County Executive
“Steve Bellone” (“Bellone”), and “SCCSEB” 1 (collectively,
“defendants”) using the Court's form for civil rights actions
brought pursuant to 42 U.S.C. § 1983. See Docket Entry
“DE” 1. Plaintiff also filed an application to proceed in forma
pauperis (“IFP”) together with the complaint. DE 2.
Upon review, the Court finds that plaintiff is qualified by his
financial status to commence this action without prepayment
of the filing fee. Accordingly, plaintiff's application to
proceed IFP is granted. However, for the reasons that follow,
the complaint is dismissed pursuant to Federal Rule of Civil
Procedure 12(h)(3) and 28 U.S.C. §§ 1915(e)(2)(B).

LEGAL STANDARDS
The Second Circuit has established a two-step procedure
wherein the district court first considers whether plaintiff
qualifies for in forma pauperis status, and then considers the
merits of the complaint under 28 U.S.C. § 1915(e)(2). Potnick
v. E. State Hosp., 701 F.2d 243, 244 (2d Cir. 1983).

1. In Forma Pauperis
Upon review of the IFP application, the Court finds that
plaintiff is qualified by his financial status to commence this
action without the prepayment of the filing fee. Therefore, the
application to proceed IFP (DE 2) is granted.

2. Sufficiency of the Pleadings
BACKGROUND
1. Summary of the Complaint 2
Pro se plaintiff's brief submission seeks to challenge an
underlying state court child support proceeding. According to
the complaint, at the Family Court building located in Central
Islip, New York:

As Judge Bianco summarized,
A district court is required to dismiss an in forma pauperis
complaint if the action is frivolous or malicious, fails to
state a claim on which relief may be granted, or seeks
monetary relief against a defendant who is immune from
such relief. See 28 U.S.C. §§ 1915(e)(2)(B)(i)-(iii). The
Court is required to dismiss the action as soon as it makes

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1

Oliver v. Punter, Not Reported in Fed. Supp. (2022)

such a determination. See 28 U.S.C. §§ 1915(e)(2)(B)(i)(iii).
*2 It is axiomatic that district courts are required to read
pro se complaints liberally, see Erickson v. Pardus, 551
U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)); Chavis v. Chappius, 618 F.3d 162, 170 (2d
Cir. 2010), and to construe them “ ‘to raise the strongest
arguments that [they] suggest [ ].’ ” Chavis, 618 F.3d at 170
(quoting Harris v. City of New York, 607 F.3d 18, 24 (2d Cir.
2010)). Moreover, at the pleadings stage of the proceeding,
the Court must assume the truth of “all well-pleaded,
nonconclusory factual allegations” in the complaint. Kiobel
v. Royal Dutch Petroleum Co., 621 F.3d 111, 123 (2d Cir.
2010), aff'd, ––– U.S. ––––, 133 S. Ct. 1659, 185 L. Ed. 2d
671 (2013) (citing Ashcroft v. Iqbal, 556 U.S. 662 (2009)).
However, “[t]hreadbare recitals of the elements of a cause
of action, supported by mere conclusory statements ... are
not entitled to the assumption of truth.” Iqbal, 556 U.S. at
678 (citation omitted).
Notwithstanding a plaintiff's pro se status, a complaint
must plead sufficient facts to “state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). “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. The
plausibility standard requires “more than a sheer possibility
that a defendant has acted unlawfully.” Id.; accord Wilson
v. Merrill Lynch & Co., 671 F.3d 120, 128 (2d Cir. 2011).
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.’ ”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
Plaintiff's factual allegations must also be sufficient to give
the defendant “fair notice of what the ... claim is and the
grounds upon which it rests,” Twombly, 550 U.S. at 555
(internal quotation marks and citation omitted).
Patrick v. Bronx Care, No. 14-CV-7392 (JFB)(AKT), 2014
WL 7476972, at *1-2 (E.D.N.Y. Dec. 31, 2014).

DISCUSSION
Section 1983 provides that:

Every person who, under color of
any statute, ordinance, regulation,
custom, or usage, of any State or
Territory or the District of Columbia,
subjects, or causes to be subjected,
any citizen of the United States or
other person within the jurisdiction
thereof to the deprivation of any rights,
privileges, or immunities secured by
the Constitution and laws, shall be
liable to the party injured in an action
at law, suit in equity, or other proper
proceeding for redress....

42 U.S.C. § 1983. Section 1983 “creates no substantive rights;
it provides only a procedure for redress for the deprivation
of rights established elsewhere.” Sykes v. James, 13 F.3d 515,
519 (2d Cir. 1993). To maintain a Section 1983 action, a
plaintiff must show that the defendant (1) acted under color
of state law (2) to deprive the plaintiff of a right arising under
the Constitution or federal law. See id. The Court analyzes
plaintiff's Section 1983 claims below.
I. Lack of State Action
“[P]rivate individuals ... cannot be sued under 42 U.S.C.
§ 1983 absent a plausible allegation that they acted under
color of state law.” Basile v. Connolly, 538 F. App'x 5, 7
(2d Cir. 2013). Although plaintiff names Punter and Lutzer
as defendants, he has not alleged that either defendant is a
state actor or has otherwise acted under color of state law.
See DE 1, in toto. Accordingly, plaintiff has not plausibly
alleged a Section 1983 claim against Punter and Lutzer and
these claims are thus dismissed without prejudice pursuant to
28 U.S.C. § 1915(e)(2)(B)(i)-(ii).
II. Lack of Personal Involvement
*3 Plaintiff's sparse complaint does not include any factual
allegations of conduct or inaction attributable to any of the
defendants. Indeed, apart from the caption and “Parties”
section of the complaint, Punter, Bellone, and SCCSEB are
not again mentioned. See DE 1, in toto. Moreover, plaintiff
has alleged only that Lafler and Lutzer “held a Support
Hearing without following the rules of Due Process.” Id. at
5, ¶ III.C.

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Oliver v. Punter, Not Reported in Fed. Supp. (2022)

“[P]ersonal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of
damages under § 1983.” Farid v. Ellen, 593 F.3d 233, 249
(2d Cir. 2010) (internal quotations marks omitted). “[B]ald
assertions and conclusions of law” are insufficient to establish
personal involvement. See Leeds v. Meltz, 85 F.3d 51, 53 (2d
Cir. 1996). Moreover, an individual will not be held liable
by virtue of his or her supervisory position alone. McKinnon
v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977). Rather, as
the Second Circuit Court of Appeals recently made clear,
“there is no special rule for supervisory liability” and, in order
“[t]o hold a state official liable under § 1983, a plaintiff must
plead and prove the elements of the underlying constitutional
violation directly against the official without relying on a
special test for supervisory liability.” Tangreti v. Bachmann,
983 F.3d. 609, 620 (2d Cir. 2020). Where a Section 1983 claim
fails to allege the personal involvement of the defendant, it
fails as a matter of law. See Johnson v. Barney, 360 F. App'x
199, 201 (2d Cir. 2010) (summary order).
Here, as is readily apparent, Plaintiff has omitted any
factual allegations of conduct or inaction attributable to any
defendant and his “bald assertions and conclusions of law”
do not suffice. Thus, in the absence of any alleged personal
involvement by any defendant, plaintiff has not set forth a
plausible Section 1983 claim against them. Thus, plaintiff's
Section 1983 claims are not plausible and are thus dismissed
without prejudice for failure to state a claim upon which relief
may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(ii).
III. The Domestic Relations Exception
Even if Plaintiff had alleged the personal involvement
of each defendant, this Court could not adjudicate his
claims challenging an underlying state court child support
proceeding. The domestic relations exception to federal
jurisdiction “ ‘divests the federal courts of power to issue
divorce, alimony and child custody decrees.’ ” Stumpf v.
Maywalt, No. 21-CV-06248(EAW), 2022 WL 2062613,
at *4 (W.D.N.Y. June 6, 2022) (quoting Rabinowitz v.
New York, 329 F. Supp. 2d 373, 376 (E.D.N.Y. 2004)
(citation omitted)). This exception also extends to child
support determinations and the enforcement thereof. See,
e.g., Sorenson v. Suffolk Cnty. Child Support Enforcement
Bureau, 07-CV-03755(JFB)(AKT), 2009 WL 580426, at
*6-7 (E.D.N.Y. Mar. 5, 2009) (finding plaintiff, who
previously unsuccessfully sought to have child support
“arrears vacated ... in state court” cannot “utilize the
federal courts to, in essence, challenge the existing judgment

regarding child support arrears, or the County's enforcement
of that judgment”); McArthur v. Bell, 788 F. Supp. 706, 709
(E.D.N.Y. 1992) (plaintiff's constitutional claims, which were
directly related to an underlying child support determination,
were barred by the domestic relations exception because “to
decide the instant case, this Court would be forced to reexamine and re-interpret all the evidence brought before the
state court in the domestic relations proceedings,” which “is
the role of the Appellate Division ... not the role of this
Court.”). Thus, the domestic relations exception divests the
Court of subject matter jurisdiction to adjudicate plaintiff's
Section 1983 claims. Accordingly, they are dismissed without
prejudice pursuant to Federal Rule of Civil Procedure 12(h)
(3). 3
IV. Leave to Amend
*4 The Second Circuit has held that “[d]istrict courts should
generally not dismiss a pro se complaint without permitting
at least one opportunity to amend, but granting leave to
amend is not necessary when it would be futile.” Lamb v.
Cuomo, 698 F. App'x 1, 2 (2d Cir. 2017) (citing Cuoco
v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)). Where a
complaint has been dismissed for lack of subject matter
jurisdiction, denial of leave to amend on the basis of futility
may be appropriate. Rahim v. Secretary, Establishment Div.,
Gov't of People's Republic of Bangl., 481 F. App'x 18, 19
(2d Cir. 2012) (affirming district court's dismissal of pro se
plaintiff's complaint without leave to amend where complaint
was dismissed for lack of subject matter jurisdiction).
Here, leave to amend would be futile given that the domestic
relations exception divests this Court of subject matter
jurisdiction. Accordingly, leave to amend the complaint is
denied.

CONCLUSION
Based on the foregoing, plaintiff's application to proceed
IFP is granted. The complaint is dismissed without prejudice
pursuant to Federal Rule of Civil Procedure 12(h)(3) and 28
U.S.C. § 1915(e)(2)(B)(i)-(ii). Leave to further amend the
complaint is denied. The 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 the
purpose of an appeal. See Coppedge v. United States, 369 U.S.
438, 444-45 (1962).

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3

Oliver v. Punter, Not Reported in Fed. Supp. (2022)

SO ORDERED.

All Citations
Not Reported in Fed. Supp., 2022 WL 3228272

Footnotes
1

The Court understands this to reference the Suffolk County Child Support Enforcement Bureau.

2

Excerpts from the complaint are reproduced here exactly as they appear in the original. Errors in spelling,
punctuation, and grammar have not been corrected or noted.

3

It also appears that plaintiff is challenging state court judgments rendered in April and May 2022, well before
the complaint was filed in this Court on June 16, 2022. Thus, the Rooker-Feldman doctrine would also
require this Court to decline plaintiff's invitation to review and reject those state court judgments. Stumpf,
2022 WL 2062613, at 4 n. 4 (“The Rooker-Feldman doctrine bars federal courts from exercising jurisdiction
over claims brought by state-court losers complaining of injuries caused by state-court judgments rendered
before the district court proceedings commenced and inviting district court review and rejection of those
judgments.” (internal quotation marks omitted)); Fernandez v. Turetsky, No. 12-CV-4092 (SLT) (MDG), 2014
WL 5823116, at *4 (E.D.N.Y. Nov. 7, 2014), aff'd, 645 F. App'x 103 (2d Cir. 2016) (“Courts have repeatedly
invoked the [Rooker-Feldman] doctrine in cases, like the one currently before the Court, in which plaintiffs
challenge family court decrees setting child support arrears.”) (collecting cases).

End of Document

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4

Miller v. Primo, Slip Copy (2023)

2023 WL 6379325
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Daishawn Lavon MILLER, doing business as
Daishawn Lavon Miller Living Express Trust, Plaintiff,
v.
David PRIMO, Onondaga Family Court; Sarah
G. Merrick, Title IV-D Agency; Patricia DeRue,
Onondaga Family Court; Jeffrey Alan Domachowski,
Onondaga Family Court; and Kelly Murphy,
Director of Human Resources, Defendants.

and renders it of no legal effect.”). Thus, presently before
the undersigned for review pursuant to 28 U.S.C. § 1915, is
Plaintiff's Amended Complaint. (Dkt. No. 6.)
Liberally construed, 1 Plaintiff's Amended Complaint—
which is on a form complaint alleging violations of
civil rights—asserts that his rights were violated by
Defendants David Primo, Sarah G Merrick, Patrick DeRue,
Jeffrey Alan Domachowski, and Kelly Murphy (collectively
“Defendants”), who were all involved in Plaintiff's state court
family proceeding. (See generally Dkt. No. 6.)

DAISHAWN LAVON MILLER, Plaintiff, Pro Se, 2363
James Street, #547, Syracuse, New York 13206.

The Amended Complaint is difficult to decipher and fails to
provide sufficient factual information for the Court to review
or for Defendants to have notice of the claims against them.
(See generally Dkt. No. 6.) From what the undersigned can
glean, Plaintiff appears to allege that Defendants refuse to
terminate Plaintiff's child support obligation. (Id.) As relief,
Plaintiff requests that this court terminate the child support
order, reimburse him for all amounts paid, and award him
damages in the amount of three times what has been garnished
from his wages. (Dkt. No. 6 at 7.)

ORDER and REPORT-RECOMMENDATION

Plaintiff also filed an application to proceed IFP and an
amended IFP application. (Dkt. Nos. 2, 7.)

5:23-CV-1051 (BKS/ML)
|
Signed September 29, 2023
Attorneys and Law Firms

MIROSLAV LOVRIC, United States Magistrate Judge
*1 The Clerk has sent this pro se Complaint (Dkt. No. 1)
together with an application to proceed in forma pauperis
(“IFP”) (Dkt. No. 2), an Amended Complaint (Dkt. No.
6), and an amended IFP application (Dkt. No. 7) filed
by Daishawn Lavon Miller (“Plaintiff”) to the Court for
review. For the reasons discussed below, I (1) deny Plaintiff's
IFP application (Dkt. No. 2) as moot, (2) grant Plaintiff's
amended IFP application (Dkt. No. 7), and (3) recommend
that Plaintiff's Amended Complaint (Dkt. No. 6) be dismissed
in its entirety without prejudice (a) in part with leave to
amend, and (b) in part without leave to amend.
I. BACKGROUND
On August 24, 2023, Plaintiff commenced this action by
the filing of a pro se Complaint against Defendants David
Primo, Sarah G Merrick, Patrick DeRue, and Jeffrey Alan
Domachowski. (Dkt. No. 1.) On September 25, 2023, Plaintiff
filed an Amended Complaint, as of right, which supersedes
his original Complaint. (Dkt. No. 6); Int'l Controls Corp. v.
Vesco, 556 F.2d 665, 668 (2d Cir. 1977) (“It is well established
that an amended complaint ordinarily supersedes the original,

II. PLAINTIFF'S APPLICATIONS TO PROCEED IN
FORMA PAUPERIS
“When a civil action is commenced in a federal district
court, the statutory filing fee, currently set at $402, must
ordinarily be paid. 28 U.S.C. § 1914(a). A court is authorized,
however, to permit a litigant to proceed IFP 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
amended IFP application (Dkt. No. 7), the Court finds that
Plaintiff meets this standard. 3 Therefore, Plaintiff's amended
application to proceed IFP is granted. 4 In addition, Plaintiff's
original application to proceed IFP is denied as moot. (Dkt.
No. 2.)
III. LEGAL STANDARD FOR INITIAL REVIEW OF
COMPLAINT
*2 “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

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1

Miller v. Primo, Slip Copy (2023)

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 order to state a claim upon which relief can be granted,
a complaint must contain, inter alia, “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed. R. Civ. P. 8(a)(2). The requirement that a
plaintiff “show” that he or she is entitled to relief means that
a complaint “must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its
face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis
added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
[2007]). “Determining whether a complaint states a plausible
claim for relief ... requires the ... court to draw on its judicial
experience and common sense .... [W]here the well-pleaded
facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged–but it has
not shown–that the pleader is entitled to relief.” Iqbal, 556
U.S. at 679 (internal citation and punctuation omitted).
“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.

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
*3 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 Amended Complaint with
this principle in mind, I recommend that all causes of action
be dismissed.
Plaintiff brings this action pursuant to Section 1983, which
establishes a cause of action for “ ‘the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws’ of the United States.” German v. Fed. Home
Loan Mortg. Corp., 885 F. Supp. 537, 573 (S.D.N.Y. 1995)
(citing Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508
(1990) (quoting 42 U.S.C. § 1983)) (footnote omitted).
“Section 1983 itself creates no substantive rights, [but] ...
only a procedure for redress for the deprivation of rights
established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d
Cir. 1993) (citation omitted). To establish liability under the
statute, a plaintiff must plead that each government official
defendant violated the Constitution through that official's own
individual actions. Tangreti v. Bachmann, 983 F.3d 609, 618
(2d Cir. 2020).
Plaintiff's Amended Complaint is largely incomprehensible
and must be dismissed for three reasons.
A. Frivolous
First, Rule 8 of the Fed. R. Civ. P. requires a “short and plain
statement” of a claim, showing that “the pleader is entitled
to relief.” Whitfield v. Johnson, 763 F. App'x 106, 107 (2d
Cir. 2019) (quoting Fed. R. Civ. P. 8(a)). Each statement
must be “simple, concise, and direct,’ and must give ‘fair
notice of the claims asserted.” Whitfield, 763 F. App'x at
107 (quoting Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir.
1995)). A pleading must also contain “a demand for the relief
sought[.]” Id. “A complaint may be dismissed under Rule 8 if

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2

Miller v. Primo, Slip Copy (2023)

it is ‘so confused, ambiguous, or otherwise unintelligible that
its true substance, if any, is well disguised.’ ” Id. Moreover,
Rule 10 of the Fed. R. Civ. P. provides that “[a] party must
state its claims or defenses in numbered paragraphs, each
limited as far as practicable to a single set of circumstances[.]”
Fed. R. Civ. P. 10(b). Rule 10’s purpose is to “provide an easy
mode of identification for referring to a particular paragraph
in a prior pleading[.]” Clervrain v. Robbins, 22-CV-1248,
2022 WL 17517312, at *2 (N.D.N.Y. Dec. 8, 2022) (Stewart,
M.J.) (citation omitted), report and recommendation adopted,
2023 WL 3170384 (N.D.N.Y. May 1, 2023) (D'Agostino, J.).
A complaint that does not comply with these Rules “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 [the plaintiff's] claims,”
and may properly be dismissed by the court. Gonzales v. Wing,
167 F.R.D. 352, 355 (N.D.N.Y. 1996) (McAvoy, C.J.).
As it currently stands, Plaintiff's Amended Complaint wholly
fails to provide fair notice of the claims he attempts to assert.
Given its lack of clarity, the Court recommends dismissal of
the Amended Complaint because it is not acceptable under
Rules 8 and 10 of the Fed. R. Civ. P. and because Plaintiff's
Section 1983 claims against Defendants are entirely unclear.

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 best interest

(Dkt. No. 6 at 4.)
These allegations fail to allege the personal involvement of
any of Defendants in a violation of Plaintiff's rights. 6
C. Immunity
*5 Third and in the alternative, I recommend that Plaintiff's
Amended Complaint be dismissed to the extent that it asserts
claims against Defendants Primo, Merrick, Domachowski,
and DeRue, because it seeks relief from individuals who are
immune from suit.

1. Defendant Primo
B. Failure to State a Claim Upon Which Relief May be
Granted
*4 Second, and in the alternative, I recommend that
Plaintiff's Amended Complaint be dismissed because it fails
to state a claim upon which relief may be granted. 5
“To state a valid claim under § 1983, the plaintiff must allege
that the challenged conduct (1) was attributable to a person
acting under color of state law, and (2) deprived the plaintiff
of a right, privilege, or immunity secured by the Constitution
or laws of the United States.” Whalen v. Cnty. of Fulton, 126
F.3d 400, 405 (2d Cir. 1997) (citing Eagleston v. Guido, 41
F.3d 865, 875-76 (2d Cir. 1994)).
Here, the 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

Absolute immunity extends to nonjudicial officers who
perform acts that “are integrally related to an ongoing judicial
proceeding.” Mitchell v. Fishbein, 377 F.3d 157, 172-73
(2d Cir. 2004). Plaintiff's Amended Complaint identifies
Defendant Primo as “Chief Clerk of Onondaga County
Family Court.” (Dkt. No. 6 at 2.) Quasi-judicial immunity
protects court clerks and sheriffs from suit “for performance
of tasks which are judicial in nature and an integral part of the
judicial process.” Garcia v. Hebert, 08-CV-0095, 2013 WL
1294412, at *12 (D. Conn. Mar. 28, 2013) (quoting Rodriguez
v. Weprin, 116 F.3d 62, 66 (2d Cir. 1997)), aff'd, 594 F. App'x
26 (2d Cir. 2015) (summary order), cert. denied, No. 14-9720
(Oct. 5, 2015).
As a result, I recommend that Plaintiff's claims against
Defendant Primo in his individual capacity be dismissed,
because he is immune from suit. See Leftridge v. Judicial
Branch, 22-CV-0411, 2023 WL 4304792, at *9 (D. Conn.
June 30, 2023) (dismissing the plaintiff's claims against
the state court clerks of court based on the doctrine of
quasi-judicial immunity where “their alleged actions arose
out of or related to [plaintiff]’s child support and child
custody proceedings.”); Braithwaite v. Tropea, 23-CV-1431,

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Miller v. Primo, Slip Copy (2023)

2023 WL 4207907, at *4 (E.D.N.Y. June 27, 2023) (citing
Jackson v. Pfau, 523 F. App'x 736, 737-38 (2d Cir. 2013)
(affirming dismissal pursuant to Section 1915(e)(2)(B) of pro
se plaintiff's Section 1983 claims against the Chief Clerks
of several state courts based on the doctrine of judicial
immunity)) (dismissing as frivolous the plaintiff's claims
against the clerk of the court because he was entitled to
absolute immunity); Mendez v. Johnson, 22-CV-6811, 2022
WL 3587600, at *2 (S.D.N.Y. Aug. 22, 2022) (citing inter
alia, Chmura v. Norton, Hammersley, Lopez & Skokos Inverso
PA, 17-CV-2164, 2018 WL 2138631, at *2 (D. Conn. May
9, 2018) (extending judicial immunity to a clerk of court);
Manko v. Ruchelsman, 12-CV-4100, 2012 WL 4034038, at
*2 (E.D.N.Y. Sept. 10, 2012) (same)) (noting that courts have
routinely granted judicial immunity to “government officials,
including clerks of court and other court employees, for their
acts that assist a judge in the performance of his or her judicial
duties.”).
Moreover, I recommend that Plaintiff's claims against
Defendant Primo in his official capacity as Chief Clerk of
Onondaga Family Court be dismissed because the Onondaga
County Family Court is an arm of the New York state court
system and New York State is immune from suit pursuant to
the Eleventh Amendment. Braithwaite, 2023 WL 4207907,
at *4 (collecting cases) (holding that the plaintiff's claims
against the Chief Clerk of the Suffolk County Court in his
official capacity are barred by the Eleventh Amendment).

2. Defendant Merrick
Defendant Merrick, as the Commissioner of Social ServicesEconomic Security, is “not entitled to judicial immunity
because her responsibilities are not closely associated with
the judicial process nor is her agency a quasi-judicial body.
However, she [is] entitled to qualified immunity.” Parent
v. New York, 786 F. Supp. 2d 516, 537 (N.D.N.Y. 2011)
(Hurd, J.), aff'd, 485 F. App'x 500 (2d Cir. 2012); but see
Ramos v. Putnam Family Court, 15-CV-1443, 2017 WL
3083727, at *3 (D. Conn. July 18, 2017) (quoting Lomtevas
v. Cardozo, 05-CV-2779, 2006 WL 229908, at *5 (D. Conn.
Jan. 31, 2006)) (finding that “[o]fficials involved with ...
the enforcement of [a] child support order are entitled to
‘absolute quasi-judicial immunity.’ ”). Defendant Merrick's
conduct in “enforcing the petition [ordering Plaintiff to pay
child support] did not violate any clearly established right.
There is no right to refuse to pay child support. Moreover,
even if there was such a right and it was clearly established, it

was objectively reasonable for [Defendant Merrick] to believe
that carrying out her duties and enforcing the petition did not
violate [P]laintiff's rights.” Parent, 786 F. Supp. 2d at 537.
As a result, I recommend that all claims against Defendant
Merrick in her individual capacity be dismissed based on
the doctrine of qualified immunity. See also Chris H. v. New
York, 16-CV-6807, 2017 WL 2880848, at *9 (S.D.N.Y. July 5,
2017) (finding that the plaintiff's claims against the New York
City Human Resources Administration/Department of Social
Services Commissioner were subject to dismissal pursuant to
the doctrine of qualified immunity). 7

3. Defendants DeRue and Domachowski
*6 Plaintiff's claims under § 1983 against Defendants DeRue
and Domachowski, who acted as the support magistrate
judges, are barred under the doctrine of judicial immunity.
Under this doctrine, judges are absolutely immune from suit
for claims for damages for any actions taken within the scope
of their judicial responsibilities. See Mireles v. Waco, 502 U.S.
9, 11-12 (1991). Generally, “acts arising out of, or related to,
individual cases before [a] judge are considered judicial in
nature.” Bliven v. Hunt, 579 F.3d 204, 210 (2d Cir. 2009).
“[E]ven allegations of bad faith or malice cannot overcome
judicial immunity.” Bliven, 579 F.3d at 209.
Judicial immunity does not apply when a judge takes action
outside his or her judicial capacity, or when a judge takes
action that, although judicial in nature, is taken “in the
complete absence of all jurisdiction.” Mireles 502 U.S. at
11-12; see also Bliven, 579 F.3d at 209-10 (describing actions
that are judicial in nature). However, “the scope of [a]
judge's jurisdiction must be construed broadly where the
issue is the immunity of the judge.” Stump v. Sparkman,
435 U.S. 349, 356 (1978). “District courts within this Circuit
have applied this immunity doctrine to New York Family
Court Support Magistrates,” like Defendants DeRue and
Domachowski. Roger of the Family Forest v. 45 C.F.R. §
75.2 IV-D Contractor Steve Banks, 18-CV-10866, 2019 WL
4194332, at *4 (S.D.N.Y. Aug. 30, 2019) (collecting cases).
Plaintiff asserts claims that appear to arise from the
efforts of Defendants DeRue and Domachowski, in their
capacities as a New York Family Court Support Magistrates,
to assess and collect child support that Plaintiff owes
pursuant to Family Court orders and judgments. Defendants
DeRue and Domachowski are therefore immune from suit
under the doctrine of judicial immunity. As a result, I

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Miller v. Primo, Slip Copy (2023)

recommend that Plaintiff's claims against Defendants DeRue
and Domachowski in their individual capacities be dismissed
based on the doctrine of judicial immunity.
Moreover, I recommend that Plaintiff's claims against
Defendants DeRue and Domachowski in their official
capacities be dismissed pursuant to the Eleventh Amendment.
See Sundwall v. Leuba, 28 F. App'x 11, 12 (2d Cir. 2001)
(citing K & A Radiologic Tech. Servs., Inc. v. Comm'r of the
Dep't of Health, 189 F.3d 273, 278 (2d Cir. 1999)) (holding
that “state officers, if sued in their official capacities, are
immunized from suit by private citizens under the Eleventh
Amendment.”); King v. New York State, 23-CV-3421, 2023
WL 5625440, at *4 (E.D.N.Y. Aug. 31, 2023) (citing Thomas
v. Martin-Gibbons, 857 F. App'x 36, 37 (2d Cir. 2021)
(affirming dismissal of pro se Section 1983 claims against
the State of New York and a state court judge in his
official capacity based on Eleventh Amendment immunity))
(“Eleventh Amendment immunity extends to state officials
acting in their official capacities, including state court
judges.”); Aron v. Becker, 48 F. Supp. 3d 347, 366-67
(N.D.N.Y. 2014) (McAvoy, J.) (dismissing the plaintiff's
claims against a state court judge in his official capacity based
on the doctrine of Eleventh Amendment immunity).
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.). 8

*7 Here, better pleading could not cure the Court's lack of
subject matter jurisdiction based on the immunities described
above, which appear to apply to all claims against Defendants
Primo, DeRue, and Domachowski.
Although I have serious doubts about whether Plaintiff
can further amend the Amended Complaint to assert an
actionable claim against Defendants Merrick and Murphy,
given Plaintiff's pro se status and that Plaintiff has not had
the benefit of the Court's analysis prior to amending, out
of an abundance of caution, I recommend that Plaintiff's
claims against Defendants Merrick and Murphy be dismissed
without prejudice and with leave to amend.
If Plaintiff chooses to file a second amended complaint,
he should note that the law in this circuit clearly provides
that “ ‘complaints 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.’
” Hunt v. Budd, 895 F. Supp. 35, 38 (N.D.N.Y. 1995)
(McAvoy, J.) (quoting Barr v. Abrams, 810 F.2d 358, 363
(2d Cir. 1987)); accord Pourzancvakil v. Humphry, 94CV-1594, 1995 WL 316935, at *7 (N.D.N.Y. May 22, 1995)
(Pooler, J.). Therefore, in any second 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
named defendant in the constitutional deprivations alleged in
sufficient detail to establish that it was tangibly connected
to those deprivations. Bass v. Jackson, 790 F.2d 260, 263
(2d Cir. 1986). Finally, Plaintiff is informed that any such
second amended complaint will replace the existing Amended
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 IFP application (Dkt. No. 2) is
DENIED as moot; and it is further

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Miller v. Primo, Slip Copy (2023)

ORDERED that Plaintiff's amended IFP application (Dkt.
No. 7) is GRANTED; and it is further respectfully
RECOMMENDED that Plaintiff's Amended Complaint
(Dkt. No. 6) be sua sponte dismissed in its entirety pursuant
to 28 U.S.C. § 1915(e); and it is further respectfully
RECOMMENDED that the Court DISMISS WITHOUT
PREJUDICE AND WITH LEAVE TO AMEND Plaintiff's
Amended Complaint (Dkt. No. 6) against Defendants Merrick
and Murphy in their individual and official capacities,
pursuant to 28 U.S.C. § 1915(e)(2)(B); and it is further
respectfully
RECOMMENDED that the Court DISMISS WITHOUT
PREJUDICE AND WITHOUT LEAVE TO AMEND
Plaintiff's Amended Complaint (Dkt. No. 6) against
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 the Clerk of the Court shall file a copy of this
Order and Report-Recommendation on Plaintiff, along with
copies of the unpublished decisions cited herein in accordance
with the Second Circuit's decision in Lebron v. Sanders, 557
F.3d 76 (2d Cir. 2009) (per curiam).
*8 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. 9 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)).
All Citations
Slip Copy, 2023 WL 6379325

Footnotes
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

The language of that section is ambiguous because it 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. 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

The Court notes that Section 1915(a)(1) does not set financial guideposts as standards for determining IFP
eligibility. Although Plaintiff's income appears to be above the federal poverty guidelines (Dkt. No. 7 at ¶ 2),
based on his monthly expenses (id. at ¶ 6) and support contributions for his minor children (id. at ¶ 7), I find
that he has established—albeit barely—that he is “unable” to pay the filing fee, or that paying the filing fee
would pose a “serious hardship.”

4

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

5

Due to the nature of Plaintiff's Amended Complaint, it is difficult to precisely determine exactly which doctrine
applies, but his claims are also likely barred. “[I]n the event the underlying state court proceedings are
concluded, such claims are likely barred by the Rooker-Feldman doctrine.” Walker v. O'Connor, 22-CV-0581,
2022 WL 2341420, at *6 (N.D.N.Y. June 29, 2022) (Dancks, M.J.) (citing Phifer v. City of New York, 289
F.3d 49, 57 (2d Cir. 2002) (“There is no question that Rooker-Feldman bars Phifer's challenges to the family

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court's decisions regarding custody, neglect, and visitation.”); Fernandez v. Turetsky, 12-CV-4092, 2014 WL
5823116, at *4 (E.D.N.Y. Nov. 7, 2014) (collecting cases) (“Courts have repeatedly invoked the [RookerFeldman] doctrine in cases, like the one currently before the Court, in which plaintiffs challenge family court
decrees setting child support arrears.”), aff'd, 645 F. App'x 103 (2d Cir. 2016)), report and recommendation
adopted, 2022 WL 2805462 (N.D.N.Y. July 18, 2022) (Hurd, J.). “Under the domestic relations exception to
the jurisdiction of federal courts, cases involving divorce, alimony, and child custody remain outside federal
court jurisdiction.” Amato v. McGinty, 21-CV-0860, 2022 WL 226798, at *10 (N.D.N.Y. Jan. 26, 2022) (Dancks,
M.J.) (citing Marshall v. Marshall, 547 U.S. 293, 308 (2006)). In the event that Plaintiff's underlying state
family court proceeding remains pending, his request for this Court's involvement may also implicate the
Younger abstention doctrine. Younger v. Harris, 401 U.S. 37 (1971). Under the Younger doctrine, “federal
courts [must] abstain from taking jurisdiction over federal constitutional claims that involve or call into question
ongoing state proceedings.” Diamond “D” Constr. Corp. v. McGowan, 282 F.3d 191, 198 (2d Cir. 2002).
6

The Court notes that the Amended Complaint includes two pages with each Defendant listed as a heading
and a bullet point list under each heading. (Dkt. No. 6 at 5-6.) These pages do not contain factual allegations
and instead appear to include legalese phrases that largely do not make sense. By way of example, under
the heading naming Defendant Primo, Plaintiff alleges:
• Breach of Agreement
• Securities fraud
• Trespass of my estate
• Neglect/failed to prevent
• Violation of the hierarchy of law
(Dkt. No. 6 at 5.) The list also includes a heading for Defendant Murphy. (Dkt. No. 6 at 6.) However, the
Amended Complaint fails to allege factual allegations plausibly suggesting any action taken by Defendant
Murphy and therefore fails to allege her personal involvement in any violations.

7

However, the undersigned notes that Plaintiff's claims against Defendant Merrick in her official capacity are
not barred by the Eleventh Amendment. Meyers v. Becker, 23-CV-0173, 2023 WL 3079611, at *4 (N.D.N.Y.
Apr. 5, 2023) (Hummel, M.J.), report and recommendation adopted, 2023 WL 3073495 (N.D.N.Y. Apr. 25,
2023) (Hurd, J.). Notwithstanding that conclusion, I recommend that any claims against Defendant Merrick in
her official capacity be dismissed because—in addition to the reasons set forth above—the Complaint fails to
allege facts plausibly suggesting that Defendant Merrick's actions were pursuant to any policy or custom of
Onondaga County. Official capacity suits are merely an alternative way to plead a claim against an entity of
which an officer is an employee. Kentucky v. Graham, 473 U.S. 159, 165 (1985). “[A] governmental entity is
liable under § 1983 only when the entity itself is a ‘moving force’ behind the deprivation.” Graham, 473 U.S. at
166 (quoting Polk Cnty. v. Dodson, 454 U.S. 312, 326 (1981)). In an official capacity suit against a municipal
employee, a plaintiff must show that the acts were performed pursuant to a policy or custom. Patterson v.
Cnty. of Oneida, 375 F.3d 206, 226 (2d Cir. 2004).

8

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.

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9

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).

End of Document

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