Encarnacion v. Irby et al
Filing
48
OPINION AND ORDER re: 34 MOTION to Dismiss the Amended Complaint. filed by Michelle Foggie, John Sampugnaro. For the foregoing reasons, Defendants' motion to dismiss is GRANTED. The Clerk of Court is respectfully directed to terminate this motion, Doc. 34, and to close the case. It is SO ORDERED. (Signed by Judge Edgardo Ramos on 3/27/2024) (jca) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SAMUEL ENCARNACION,
Plaintiff,
– against –
OPINION & ORDER
MICHELLE FOGGIE, Clerk of the Bronx
County Supreme Court Criminal Division,
and JOHN SAMPUGNARO, the motion
clerk on September 13, 2018,
22 Civ. 1733 (ER)
Defendants.
RAMOS, D.J.:
Samuel Encarnacion, who is currently incarcerated at Five Points Correctional
Facility, brings this pro se action pursuant to 42 U.S.C. § 1983, alleging that Michelle
Foggie and John Sampugnaro (collectively, “Defendants”) interfered with his
postconviction submissions in his New York state court criminal proceedings. Doc. 19.
Before the Court is Defendants’ motion to dismiss all claims pursuant to Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6). Doc. 34. For the reasons stated below, the motion
is GRANTED.
I.
BACKGROUND
A. Factual Background1
Samuel Encarnacion was convicted, after a jury trial, of second-degree murder,
second-degree attempted murder, and two counts of first-degree assault. Doc. 19-1 at
186. He was sentenced on December 19, 2007 to a term of twenty years to life on the
The following facts are based on the allegations in the complaint, which the Court accepts as true for the
purposes of the instant motion. See, e.g., Koch v. Christie’s Int’l PLC, 699 F.3d 141, 145 (2d Cir. 2012). In
adjudicating a motion to dismiss, a court may also consider exhibits to the complaint, any statements or
documents incorporated in it by reference, and documents integral to it. Vogel v. TakeOne Network Corp.,
No. 22 Civ. 3991 (ER), 2023 U.S. Dist. LEXIS 144922, at *10 (S.D.N.Y. Aug. 16, 2023) (citing ASARCO
LLC v. Goodwin, 756 F.3d 191, 198 (2d Cir. 2014)).
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murder count, to run consecutively with three concurrent terms of twenty years
imprisonment on the attempted murder and assault counts. Id.
On August 29, 2018, Encarnacion mailed a motion to vacate the judgment against
him, pursuant to CPL § 440.10,2 to Chief Clerk Michelle Foggie at the Bronx County
Hall of Justice (the “August 2018 Motion”). Doc. 19 ¶ 5. Encarnacion’s certified mail
receipts show that the motion arrived at the Hall of Justice on September 13, 2018, yet
the motion was never processed by the Bronx County Clerk’s Office or set for a return
date. Id. ¶¶ 5–6. Encarnacion alleges that the motion wasn’t processed because Foggie
and the motion clerk “intercepted, conspired, and ultimately confiscated” Encarnacion’s
mail. Id. ¶ 6. Three months after his receipts showed his motion had arrived at the Hall
of Justice, Encarnacion wrote another letter to the Clerk’s Office. Id. ¶ 7. This letter,
dated December 17, 2018, accused the Bronx County Clerk’s Office and the Bronx
District Attorney’s Office of violating his due process rights by not filing the August 2018
Motion, because “the failure in processing [his] motion . . . constitute[d] a violation of
[his] rights to have access to the courts.” Id. The letter also requested that the August
2018 Motion be converted into an Article 70 habeas corpus proceeding granting his
immediate release from custody. Doc. 19-1 at 8.
Encarnacion also sent a copy of his December 17, 2018 letter directly to Justice
Martin Marcus of the Bronx County Supreme Court, who was considering a separate
§ 440.20 motion from Encarnacion, which he had previously filed on July 16, 2018. Doc.
19 ¶ 12, see Doc. 19-1 at 186. Encarnacion hoped that the justice would forward the
letter to the Bronx County Clerk’s Office or inquire about the August 2018 Motion. Doc.
19 ¶ 12. Justice Marcus denied the earlier-filed July, 2018 motion in an order dated
February 5, 2019. Id. ¶ 13. His opinion shows that he interpreted the December 17, 2018
CPL § 440.10 states that “[a]t any time after the entry of a judgment, the court in which it was entered
may, upon motion of the defendant, vacate such judgment [upon various enumerated grounds].” N.Y.
Crim. Proc. Law § 440.10 (Consol. 2024).
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letter as a reply to the July 16, 2018 motion he was already considering, and treated it as
such. Doc. 19-1 at 45; see also Doc. 19-1 at 122. Justice Marcus then considered and
denied Encarnacion’s request to convert the August 2018 Motion into a habeas
proceeding. Id. at 46, see also id. at 118.
On April 4, 2019, Encarnacion filed an Article 78 petition3 to compel Foggie to
file the August 2018 Motion. Doc. 19 ¶ 18. In opposition to the Article 78 petition,
Foggie’s attorney claimed that Justice Marcus’s February 5, 2019 decision had already
denied Encarnacion’s August 2018 Motion, in addition to his July 2018 motion.4 Id. ¶
27; see Doc. 19-1 at 104–05. On January 21, 2020, Encarnacion wrote to Justice Marcus
and asked if the August 2018 Motion had been assigned to him or if he had made a
decision regarding the motion. Doc. 19 ¶ 41. Justice Marcus responded on February 6,
2020 that he had no record of the motion being filed, and that Encarnacion had no
motions then pending before the Supreme Court. Id. After several more letters from
Encarnacion, Justice Marcus informed him in a letter dated August 21, 2020 that he
would treat the August 2018 Motion as filed before the court. Doc. 19-1 at 178–79.
Justice Marcus provided a copy of the motion to the government, who filed a response
opposing the motion on October 13, 2020. Id. at 188. Justice Marcus issued a decision
on January 7, 2021, denying Encarnacion’s August 2018 Motion in its entirety. See id. at
186–94. Regarding Encarnacion’s allegation that members of the Clerk’s Office
conspired to intercept and steal the August 2018 Motion, Justice Marcus wrote that
Encarnacion’s certified mail return receipts “do not prove that the Clerk’s Office received
An individual may file an Article 78 petition, pursuant to N.Y. C.P.L.R. §§ 7801–06, requesting the court
to order a “state body or officer” to perform a specified ministerial act that is required by law. N.Y.
C.P.L.R. §§ 7801–06 (Consol. 2024).
3
This does not appear to be accurate. See Doc. 19-1 at 122 (Letter from Justice Marcus to Encarnacion
stating that neither his Court nor the Clerk’s Office had any record of the August 2018 Motion). Justice
Marcus’s February 5, 2019 opinion denied Encarnacion’s July § 440.20 motion and his December 17, 2018
habeas request. Id.
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the August 29, 2018 motion or that the Clerk’s Office refused to file it.” Id. at 192.
Justice Marcus then addressed Encarnacion’s allegations of a conspiracy to prevent him
from accessing the courts:
[Encarnacion’s] allegation of a conspiracy between the Bronx District Attorney’s Office and the Clerk’s Office to deny him access to
the courts is utterly baseless, especially in light of the approximately
nine post-conviction motions5 [Encarnacion] has filed that have
been addressed by trial courts and the Appellate Division, as well as
his direct appeal and the various appeals he has filed from the denials
of his post-conviction motions . . . [Encarnacion] has clearly not
been denied access to the courts. In reality, [Encarnacion’s] complaint is that none of the many courts that have presided over his
appeals and motions have ruled in his favor.
Id. at 193.
B. Procedural History
Encarnacion initially filed the instant action on February 28, 2022, alleging
violations of his First, Fifth, Sixth, and Fourteenth Amendment rights. Doc. 2 ¶ 74. His
initial complaint named seven defendants: Justice Martin Marcus of the Bronx Supreme
Court; John McConnell, Counsel for the New York State Office of Court Administration;
Sandra Irby, Assistant Deputy Counsel for the New York State Office of Court
Administration; Shera Knight and Jennifer Russell, Assistant District Attorneys for Bronx
County; Michelle Foggie, Chief Clerk for the Criminal Division of the Bronx County
Supreme Court; and John Doe, the unknown motion clerk from September 13, 2018.
Doc. 2 ¶¶ 4–10. The Court issued an order on May 9, 2022, dismissing the complaints
against all defendants except Foggie and Doe; ordering the New York City Law
Department to identify the John Doe defendant and provide his name to Encarnacion; and
directing Encarnacion to file an amended complaint naming John Doe within thirty days
Justice Marcus offered a brief summary of Encarnacion’s post-conviction litigation: “[S]ince his
conviction, [Encarnacion] has filed a direct appeal, three writ of error coram nobis applications, three CPL
§ 440 motions, three Article 78 petitions, and appeals of the decisions denying his various motions and
petitions. His appeals and every post-conviction motion, application and petition have been denied.” Doc.
19-1 at 186–87.
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of learning his identity. Doc. 8. Encarnacion filed an amended complaint on July 29,
2022, identifying John Sampugnaro as the defendant previously referred to as John Doe.
Doc. 19. The amended complaint, however, once again named Irby and Knight as
defendants. Id. The Court issued an order on October 26, 2022 dismissing Irby and
Knight for the same reasons specified in the Court’s May 9 order. Doc. 24. The
remaining defendants, Foggie and Sampugnaro, filed the instant motion to dismiss all
claims on May 16, 2023. Doc. 34. In their motion, Defendants argue that they are
shielded in their official capacities by sovereign immunity under the Eleventh
Amendment; that they are immune from suit in their personal capacities under common
law quasi-judicial immunity; and that the complaint is time-barred because it was
initiated after the relevant statute of limitations expired. See generally Doc. 36.
II.
LEGAL STANDARD
When ruling on a motion to dismiss pursuant to Rule 12(b)(6), district courts are
required to accept as true all factual allegations in the complaint and to draw all
reasonable inferences in the plaintiff's favor. See Walker v. Schult, 717 F.3d 119, 124 (2d
Cir. 2013). However, this requirement does not apply to legal conclusions, bare
assertions, or conclusory allegations. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 681, 686
(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In order to satisfy
the pleading standard under Rule 8, a complaint must contain sufficient factual matter to
state a claim to relief that is plausible on its face. Iqbal, 556 U.S. at 678 (internal citation
omitted). Accordingly, a plaintiff is required to support his claims with sufficient factual
allegations to show “more than a sheer possibility that a defendant has acted unlawfully.”
Id. The same standard applies to motions to dismiss in cases brought by pro se plaintiffs.
Davis v. Goodwill Indus. of Greater New York & New Jersey, Inc., No. 15 Civ. 7710
(ER), 2017 U.S. Dist. LEXIS 48014, at *14 (S.D.N.Y. Mar. 29, 2017) (citing Zapolski v.
Fed. Repub. of Germany, 425 F. App’x 5, 6 (2d Cir. 2011)). The Court remains obligated
to construe a pro se complaint liberally, and to interpret a pro se plaintiff’s claims as
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“rais[ing] the strongest arguments that they suggest.” Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal citation omitted). Nevertheless, “pro
se status ‘does not exempt a party from compliance with relevant rules of procedural and
substantive law.’” Triestman, 470 F.3d at 477 (quoting Traguth v. Zuck, 710 F.2d 90, 95
(2d Cir. 1983)). To survive a motion to dismiss pursuant to Rule 12(b)(6), a pro se
complaint that “tenders naked assertion[s] devoid of further enhancement” will not
suffice. Iqbal, 556 U.S. at 678 (internal quotations omitted).
III.
DISCUSSION
A. Encarnacion’s Claim is Barred by the Statute of Limitations
Defendants argue that the claim must be dismissed because it was filed after the
applicable statute of limitations had expired. Doc. 36 at 5–6. The parties agree that New
York has as three-year limitations period for § 1983 claims. Doc. 36 at 6; Doc. 42 ¶ 16.
Defendants argue the claim accrued in late 2018 when Encarnacion learned his August
2018 Motion had not been filed, and so Encarnacion’s deadline to file was by late 2021.
Doc. 36 at 6; Doc. 44 at 4–5. Encarnacion responds that he had “no clue or idea what
happened with [his] motion” until March, 2020, when Justice Marcus wrote him to say
that the court had no record of his August 2018 Motion being filed in the court, and
therefore the statutory period did not end until March of 2023. Doc. 42 ¶¶ 15–16.
For § 1983 claims, “courts apply the statute of limitations for personal injury
actions under state law.” Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013). In New
York, then, the relevant period is three years. Adeniji v. N.Y.C. Police Dep’t, No. 21 Civ.
0664 (LLS), 2023 U.S. Dist. LEXIS 22168, at *5 (S.D.N.Y. Feb. 7, 2023) (citing N.Y.
C.P.L.R. § 214 (Consol. 2024)). A §1983 claim accrues “when the plaintiff knows or has
reason to know of the injury which is the basis of his action.” Hogan, 738 F.3d at 518
(internal quotation marks and citation omitted).
Encarnacion’s alleged injury occurred when Defendants allegedly prevented the
August 2018 Motion from being filed with the courts. See generally Doc. 19.
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Encarnacion’s argument in opposition to this motion that he had “no clue or idea what
happened with [his] motion” until March of 2020, Doc. 42 ¶ 15, is contradicted by his
own statements in the amended complaint. See Doc. 19 ¶ 7 (describing the December 17,
2018 letter in which Encarnacion accused the motion clerk of the Bronx County Court of
violating his rights by failing to file the August 2018 Motion). Encarnacion’s December
17, 2018 letter to the Bronx court motion clerk clearly states that he knew his motion had
never been filed, and that “the failure in processing [his] motion . . . constitute[d] a
violation of [his] rights to have access to the courts.” Doc. 19-1 at 8. Thus, Encarnacion
knew or had reason to know of the injury by at least December 17, 2018. See Hogan,
738 F.3d at 518.
Even if the Court assumes that Encarnacion was still unsure of the disposition of
the August 2018 Motion—notwithstanding his December 2018 letter outlining the very
same conspiracy allegations that underlie the instant motion—the amended complaint
makes clear that Justice Marcus’s February 5, 2019 decision removed any doubt. Doc.
19 ¶ 16 (stating that Encarnacion knew his August 2018 Motion had never been filed after
Justice Marcus’s February 5, 2019 decision). Therefore, at the latest, the three-year
statute of limitations began to run on that date and ended on February 5, 2022, 17 days
before he filed the instant action. Even with the most generous reading of the timeline in
the amended complaint, Encarnacion failed to file his complaint within the three-year
limitations period. Doc. 2. Accordingly, Encarnacion’s complaint is time-barred and
must be dismissed. See Adeniji, 2023 U.S. Dist. LEXIS 22168, at *7.
B. Absolute Quasi-Judicial Immunity Bars the Claim against the Defendants
In the alternative, Defendants claim that Encarnacion’s claims are barred because
absolute quasi-judicial immunity protects them from suit in their individual capacities.6
Defendants’ motion to dismiss also argues that Sovereign Immunity under the Eleventh Amendment
shields them from suit in their official capacities. Doc. 36 at 4. If Encarnacion intended to make claims
against Defendants in their official capacities, he effectively withdrew those claims in his response, stating
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Doc. 36 at 4–5. They argue that this immunity shields the clerk of court and deputy
clerks from suit when they perform judicial acts within their judicial capacities, like filing
and docketing legal documents. Id. at 5. Encarnacion argues that quasi-judicial
immunity does not apply because Defendants’ actions were not the result of established
court practice or directed by a judicial officer. Doc. 42 ¶ 14.
Judicial immunity extends from judges to “others who perform functions closely
associated with the judicial process.” Cleavinger v. Saxner, 474 U.S. 193, 200 (1985);
see Rodriguez v. Weprin, 116 F.3d 62, 66 (2d Cir. 1997) (recognizing quasi-judicial
immunity for court clerks). Courts have held that “Clerk’s Office activities of filing and
docketing legal documents” are an “integral part of the judicial process” and are thus
entitled to absolute immunity. McKnight v. Middleton, 699 F. Supp. 2d 507, 526
(E.D.N.Y. 2010), aff’d, 434 F. App’x 32 (2d Cir. 2011); see also Bey v. New York, No. 11
Civ. 3296 (JS), 2012 U.S. Dist. LEXIS 136553, at *21 (E.D.N.Y. Sept. 21, 2012) (holding
that court clerks were entitled to absolute quasi-judicial immunity for tasks that are
integral to the judicial process); Humphrey v. Court Clerk for the Second Circuit, No. 08
Civ. 0363 (DNH), 2008 U.S. Dist. LEXIS 35912, at *7 (N.D.N.Y. May 1, 2008)
(explaining that court clerks enjoy absolute immunity “if the task was undertaken
pursuant to the explicit direction of a judicial officer or pursuant to the established
practice of the court”) (citing Rodriguez, 116 F.3d at 67). But where a court clerk refuses
to accept papers for a litigant to commence a new action, some courts have found a
possible violation of his or her rights. See Le Grand v. Evan, 702 F.2d 415, 418 (2d Cir.
1983) (“The refusal of a clerk of a court to accept the papers of a litigant seeking to
commence an action under a state statute may deprive that litigant of federal
constitutional rights . . . many courts have accorded clerks only a qualified ‘good faith’
immunity from liability arising from ministerial acts.”)).
that “the Defendants are being sued in there [sic] personal capacity so the Eleventh Amendment does not
apply here.” Doc. 42 ¶ 13.
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Defendants here were engaged in the type of quasi-judicial activity that entitles
them to absolute immunity. The defendant clerks are accused of failing to file a motion
Encarnacion sent to the court, and clerk “‘activities of filing and docketing legal
documents’ are an ‘integral part of the judicial process’ which are entitled to absolute
immunity.” McKnight, 699 F. Supp. 2d at 526 (quoting Pikulin v. Gonzales, No. 07 Civ.
412 (CBA), 2007 U.S. Dist. LEXIS 25551, at *6 (E.D.N.Y. Apr. 5, 2007)). This case is
similar to McKnight, in which the plaintiff brought suit against the Clerk of the Court
alleging that he had failed to process three motions, thereby depriving him of
constitutional, civil, and other rights. Id. at 525. The plaintiff claimed that he mailed two
of the motions to the clerk, and hand-delivered the third. Id. at 525–26. The court held
that the clerk was entitled to absolute immunity, because filing a motion is a
“discretionary action[] of a judicial character or [is an] action[] made pursuant to
established court practices.” Id. at 526.
The allegations in the instant case are similar to McKnight, although in this case
Encarnacion does not sufficiently allege that the Clerk’s office ever received his motion.7
As noted in Justice Marcus’s opinion, “the Clerk’s Office had no record of [the August
2018 Motion],” and the certified mail receipts Encarnacion produced “do not prove that
the Clerk’s Office received the August 29, 2018 motion or that the Clerk’s Office refused
to file it.” Doc. 19-1 at 187, 192; see also Doc. 19-1 at 193 (“[T]he Clerk’s Office had
not received the instant CPL § 440.10 motion . . . .”). Justice Marcus further found that
Encarnacion’s claim of a conspiracy to deny him access to the courts was “utterly
baseless.”8 Id. at 193. In McKnight, the court held that the clerk had immunity even
Encarnacion’s claims that the Defendants “intercepted, conspired, and ultimately confiscated” his mail,
Doc. 19 ¶ 6, as part of a broad conspiracy to deny him access to the courts, are the type of “legal conclusion
couched as a factual allegation” that the Court is not required to accept as true. Iqbal, 556 U.S. at 678
(internal quotation marks and citation omitted).
7
Defendants’ motion to dismiss does not address res judicata or collateral estoppel, although they mention
it in their reply brief. See Doc. 44 at 4. Federal courts are required to give preclusive effect to state court
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when he had been directly handed a motion that he subsequently did not file, because the
complaint failed to allege that the clerk varied from the court’s established procedures
and requirements for filing a motion. McKnight, 699 F. Supp. 2d at 526. Aside from
Encarnacion’s conclusory assertions of an ongoing conspiracy, nothing in the complaint
shows that the Defendants departed at any point from established court practices, or even
received the motion at issue. See Doc. 19-1 at 187, 192–93. Therefore, Defendants are
entitled to absolute quasi-judicial immunity because their behavior consisted of
“discretionary actions of a judicial character or . . . actions made pursuant to established
court practices.” Id.; see also Barton v. Clark, No. 23 Civ. 5827 (LGS), 2023 U.S. Dist.
LEXIS 188432, at *8 (S.D.N.Y. Oct. 19, 2023) (“[C]ourt clerks are absolutely immune
from suit for functions which are administrative in nature if the task was undertaken . . .
pursuant to the established practice of the court.”) (internal quotation marks and citation
omitted).
Le Grand is not to the contrary. 702 F.2d at 415 (2d Cir. 1983). In that case, two
clerks were alleged to have repeatedly refused to accept applications for various judicial
filings. Id. at 416. The clerks were alleged to have acted without any legal reason, in bad
faith, and with malice. Id. The Second Circuit’s decision only went so far as to
determine that such allegations raised “a non-frivolous issue,” and noted in dicta that
“many courts” only accorded clerks a qualified “good faith” immunity for ministerial
acts. Id. at 418. Some district courts in this Circuit have interpreted this to mean that
while court clerks are entitled to absolute quasi-judicial immunity for conduct “closely
judgments whenever other courts from that state would do so. Whitfield v. City of N.Y., No. 22 Civ. 412,
2024 U.S. App. LEXIS 6230, at *31 (2d Cir. Mar. 15, 2024). Therefore, the preclusive effect of Justice
Marcus’s opinion from the Bronx Supreme Court is determined by New York Law. See Simmons v. Trans
Express Inc., 955 F.3d 325, 328 (2d Cir. 2020) (stating that New York law determines the preclusive effect
of a New York judgment in federal court). In New York, collateral estoppel is waived unless it is raised in a
motion or responsive pleading. Mayers v. D’Agostino, 58 N.Y.2d 696, 698 (1982). Arguments cannot be
properly raised for the first time in a reply brief. See Waldorf v. Maher, 201 N.Y.S.3d 147, 148 (App. Div.
2d Dept.) (“[A]rguments raised for the first time in a reply brief are not properly before this Court.”)
(citations omitted). The argument is therefore deemed waived by Defendants, and this Court does not
address the preclusive effect of the Bronx Supreme Court’s January 7, 2021 decision.
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associated with the judicial process,” Cleavinger, 475 U.S. at 200, they only enjoy
“qualified, good faith immunity” for tasks involving “ministerial, non-judicial duties.”
See Dinsio v. Appellate Div., No. 16 Civ. 0324 (GTS), 2017 U.S. Dist. LEXIS 109378, at
*34 (N.D.N.Y. July 14, 2017); see also Isasi v. Heinemann, No. 08 Civ. 5284 (BMC),
2009 U.S. Dist. LEXIS 4392, at *4 (E.D.N.Y. Jan. 21, 2009). Even if this Court
determined that Defendants’ failure to process the August 2018 Motion was part of a
ministerial, non-judicial duty, they would still be protected by qualified immunity
because there is no credible, non-conclusory allegation of bad faith. See Kitchen v. Doe,
No. 88 Civ. 7885 (PNL), 1991 U.S. Dist. LEXIS 460, at *3 (S.D.N.Y. Jan. 16, 1991)
(holding that “[p]roof of bad faith or maliciousness is necessary to overcome” a court
clerk’s qualified immunity). Encarnacion’s complaint contains nothing more than
unsupported conclusions that the Defendants conspired to steal his mail. See generally
Doc. 19; see also Doc. 19-1 at 193–94. Beyond those conclusory assertions, Encarnacion
offers nothing to support the assertion that the Defendants acted in bad faith or with
malice. Accordingly, even if Defendants were not protected by absolute quasi-judicial
immunity, they would still be entitled to a qualified “good faith” immunity and the claim
against them must be dismissed. Dinsio, 2017 U.S. Dist. LEXIS 109378, at *34; Le
Grand, 702 F.2d at 418.
IV.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED. The
Clerk of Court is respectfully directed to terminate this motion, Doc. 34, and to close the
case.
It is SO ORDERED.
Dated:
March 27, 2024
New York, New York
EDGARDO RAMOS, U.S.D.J.
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