Graesser v. LoVallo et al
ORDER: Graesser's motion to proceed in forma pauperis, Docket Item 2 , is granted. Graesser's claims for injunctive relief asking this Court to intervene in an ongoing state-court custody proceeding are DISMISSED. Graesser may amend her complaint within 45 days of the date of this order. The Clerk of Court shall send to Graesser with this order a copy of the original complaint, a blank non-prisoner complaint form, and the instructions for preparing an amended complaint. If Graesse r does not file an amended complaint within 45 days of the date of this order, her claims against Chairman VanRensselaer and Commissioner Cannon will be dismissed without further order and the Clerk of Court shall terminate Chairman VanRensselaer and Commissioner Cannon as defendants to this action. In addition, unless within 45 days of the date of this order an attorney enters an appearance to represent Graesser's son and files an amended complaint naming Graesser's son as a plaintif f, her son's ADA claims will be dismissed without prejudice without further order. If Graesser does not file an amended complaint within 45 days of the date of this order, the Clerk of Court shall cause the United States Marshals Service to ser ve copies of the summons, complaint, and this order upon defendant Judge LoVallo, without the plaintiff's payment therefor, unpaid fees to be recoverable if this action terminates by monetary award in the plaintiff's favor. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 5/6/2022. (EK)-CLERK TO FOLLOW UP-
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
SHARON M. LOVALLO, et al., 1
The pro se plaintiff, Jodi Graesser, has filed a complaint asserting claims under
42 U.S.C. § 1983 and the Americans with Disabilities Act of 1990 (“ADA”). Docket
Item 1. She also has moved to proceed in forma pauperis (that is, as a person who
should have the prepayment of the ordinary filing fee waived because she cannot afford
it) and has filed the required affidavit. Docket Item 2.
Because the plaintiff meets the statutory requirements of 28 U.S.C. § 1915(a),
Docket Item 2, the Court grants her motion to proceed in forma pauperis. Therefore,
under 28 U.S.C. § 1915(e)(2), the Court screens the complaint. Graesser’s complaint
may conceivably present a “colorable claim” for damages against the Honorable Sharon
LoVallo, and it therefore survives screening under 28 U.S.C. § 1915(e)(2). 2 See
Graesser names Howard VanRensselaer, Sr., as a defendant. Docket Item 1 at
2. The electronic docket notes “Howard Von Rensselaer, Sr.,” as a defendant. The
Clerk of the Court shall correct his name on the electronic docket.
Graesser’s claims against Judge LoVallo may well be barred by absolute
judicial immunity. “It is well settled that judges generally have absolute immunity from
suits for money damages for their judicial actions.” Bliven v. Hunt, 579 F.3d 204, 209
(2d Cir. 2009). Judicial immunity is not simply immunity from damages, however; it is
immunity from suit altogether. Mireles v. Waco, 502 U.S. 9, 11 (1991). This is to
ensure “that a judicial officer, in exercising the authority vested in him, shall be free to
act upon his own convictions, without apprehension of personal consequences to
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Benitez v. Wolff, 907 F.2d 1293, 1295 (2d Cir. 1990) (“Sua sponte dismissal of a pro
se complaint prior to service of process is a draconian device which is warranted only
when the complaint lacks an arguable basis either in law or in fact [or is] frivolous on its
face or wholly insubstantial.” (citations omitted)); see also Pino v. Ryan, 49 F.3d 51, 53
(2d Cir. 1995) (explaining that dismissal under Federal Rule of Civil Procedure Rule
12(b)(6) still may be appropriate notwithstanding a court’s earlier finding that the
complaint was not “frivolous” for purposes of section 1915(e)(2)).
But for the reasons that follow, certain of Graesser’s claims are dismissed under
section 1915(e)(2), and the remaining claims with be dismissed under section
1915(e)(2) unless she files an amended complaint correcting the deficiencies addressed
Section 1915(e)(2) “provide[s] an efficient means by which a court can screen for
and dismiss legally insufficient claims.” Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir.
2007) (citing Shakur v. Selsky, 391 F.3d 106, 112 (2d Cir. 2004)). The court shall
dismiss a complaint in a civil action “at any time if the court determines that . . . the
himself.” Bradley v. Fisher, 80 U.S. 335, 347 (1871). Judicial immunity therefore does
not give way even to allegations of bad faith or malice. Mireles, 502 U.S. at 11. In fact,
judicial “immunity is overcome in only two sets of circumstances.” Id. “First, a judge is
not immune from liability for nonjudicial actions, i.e., actions not taken in the judge’s
judicial capacity.” Id. “Second, a judge is not immune for actions, though judicial in
nature, taken in the complete absence of all jurisdiction.” Id. at 12. Because it is
conceivable that one of those exceptions applies, the Court defers consideration of the
applicability of judicial immunity until both sides can brief the issue—and better explain
the facts—on a motion to dismiss.
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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.” See 28 U.S.C. § 1915(e)(2). Generally, the court will afford a pro se plaintiff an
opportunity to amend or to be heard prior to dismissal “unless the court can rule out any
possibility, however unlikely it might be, that an amended complaint would succeed in
stating a claim.” Abbas, 480 F.3d at 639 (citation omitted); see also Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (“A pro se complaint is to be read liberally.
Certainly the court 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.” (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999))).
But leave to amend pleadings may be denied when any amendment would be “futile.”
Cuoco, 222 F.3d at 112.
SCREENING THE COMPLAINT
In evaluating the complaint, the court accepts all factual allegations as true and
draws all inferences in the plaintiff’s favor. See Larkin v. Savage, 318 F.3d 138, 139 (2d
Cir. 2003) (per curiam); King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999). “Specific
facts are not necessary,” and the plaintiff “need only ‘give the defendant fair notice of
what the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551
U.S. 89, 93 (2007) (alteration in original) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007)); see also Boykin v. Keycorp, 521 F.3d 202, 213 (2d Cir. 2008)
(“[E]ven after Twombly, dismissal of a pro se claim as insufficiently pleaded is
appropriate only in the most unsustainable of cases.”). Although “a court is obliged to
construe [pro se] pleadings liberally, particularly when they allege civil rights violations,”
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McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004), even pleadings submitted
pro se must meet the notice requirements of Rule 8 of the Federal Rules of Civil
Procedure, see Wynder v. McMahon, 360 F.3d 73, 76 (2d Cir. 2004).
Graesser has sued the Honorable Sharon LoVallo, a New York State Family
Court Judge in Erie County; Howard VanRensselaer, Sr., the Chairman of the
Cattaraugus County Legislature; and Marie Cannon, the Commissioner of the
Department of Social Services (“DSS”), for violating her due process rights. 3 Docket
Item 1 at 2. A liberal reading of the complaint tells the following story.
Graesser is the mother of a son with a disability. 4 Id. at 3. In December 2019,
Graesser’s son was “taken after [an] ex-parte hearing.” Id. “Erie County [Child
Protective Services (“CPS”)]/DSS took [Graesser’s] son with no written or verbal
warning.” Id. at 4. Graesser was not told where her son was taken, but it appears that
he was placed in foster care. See id. (seeking a review of son’s treatment while in
“forced foster care”). Graesser now faces termination of parental rights (“TPR”)
The complaint instructs the reader to “see [the] affidavit of service document for
[a] list of additional defendants.” Docket Item 1 at 2. Although Graesser attaches an
“affidavit” to the complaint, see id. at 6, that document does not list any additional
defendants. Graesser also did not refer to any other individuals in the factual
allegations of her complaint. See id. at 3-5. If Graesser intends to bring her claims
against additional defendants, she should state the full names of the additional
defendants in the case caption of her amended complaint and list the additional
defendants as parties to the action.
The complaint alleges that there were “constant and sudden changes of
residence of special needs child.” Docket Item 1 at 3. The Court assumes that
Graesser is referring to her son and that he has one or more disabilities.
Case 1:22-cv-00320-LJV Document 3 Filed 05/06/22 Page 5 of 12
proceedings, 5 and she asks this Court to postpone the TPR trial set to commence on
May 2, 2022. Id. at 5.
It also appears that there was or is a dispute about whether Graesser’s son
should receive certain vaccines and that Judge LoVallo “ordered [Graesser’s] son to be
vaccinated.” See id. at 4. Graesser says that in ordering the child’s vaccination, Judge
LoVallo did not consult the child’s “prior records” and “contravened [two] medical
exemptions” noted “by medical doctors.” Id.
CLAIMS FOR INJUNCTIVE RELIEF
Graesser asks this Court to “[f]acilitate the return of [her] son,” id., and to
postpone the “TPR [t]rial commencing May 2, 2022[,] in Erie County,” id. at 5. Given
that the TPR trial was scheduled to commence May 2, 2022, the custody proceedings
over Graesser’s son apparently still are pending, 6 and the Court declines to exercise
jurisdiction over Graesser’s claim for injunctive relief.
In Younger v. Harris, 401 U.S. 37 (1971), the Supreme Court endorsed “a strong
federal policy against federal-court interference with pending state judicial proceedings
absent extraordinary circumstances.” Middlesex Cnty. Ethics Comm. v. Garden State
Bar Ass’n, 457 U.S. 423, 431 (1982). But under Younger, “district courts should abstain
The complaint refers to a “TPR [t]rial.” Docket Item 1 at 5. The Court assumes
that TPR is being used as an abbreviation for “termination of parental rights.” “A
termination of parental right[s] happens when a city agency . . . or foster care agency
files a petition in Family Court asking a Judge to end a parent’s parental rights.”
Graesser filed the complaint and a motion to proceed in forma pauperis on April
27, 2022. Docket Items 1, 2. Since then, Graesser has not filed anything additional to
indicate that the TPR proceedings have concluded, and the Court therefore assumes
that the TPR proceedings still are pending.
Case 1:22-cv-00320-LJV Document 3 Filed 05/06/22 Page 6 of 12
from exercising jurisdiction only in three ‘exceptional circumstances’ involving (1)
‘ongoing state criminal prosecutions,’ (2) ‘certain civil enforcement proceedings,’ and (3)
‘civil proceedings involving certain orders uniquely in furtherance of the state courts’
ability to perform their judicial functions.’” Falco v. Justs. of the Matrim. Parts of Sup.
Ct. of Suffolk Cnty., 805 F.3d 425, 427 (2d Cir. 2015) (quoting Sprint Commc’ns, Inc. v.
Jacobs, 571 U.S. 69, 78 (2013)).
Graesser’s request for this Court to intervene in the ongoing custody proceedings
falls squarely in the third category. 7 In fact, “states have an especially strong interest” in
“manag[ing] their own . . . custody proceedings.” Id. (quoting Phillips, Nizer, Benjamin,
Krim & Ballon v. Rosenstiel, 490 F.2d 509, 516 (2d Cir. 1973) (Friendly, J.)). Therefore,
this Court may not intervene in those proceedings and issue orders frustrating the
state’s interest in enforcing Family Court decisions. See Bukowski v. Spinner, 709 F.
App’x 87, 88 (2d Cir. 2018) (summary order) (quoting Falco, 805 F.3d at 428)
(“[F]ederal-court abstention is required under [Younger], insofar as [plaintiff] seeks
declaratory or injunctive relief that would interfere with a ‘[s]tate court’s ability to perform
its judicial function in . . . [an ongoing] custody proceeding[ ].’” (alterations in original)).
To the extent that Graesser seeks to overturn any custody orders already
issued by the Erie County Family Court, those claims likely are barred by the RookerFeldman doctrine. Under Rooker-Feldman, “federal district courts lack subject matter
jurisdiction over disputes where a plaintiff essentially seeks review of a state-court
decision.” St. Maarten v. J.P. Morgan Chase Bank, N.A., 2021 WL 2217503, at *2
(E.D.N.Y. Jan. 14, 2021) (citing Rooker v. Fidelity Tr. Co., 263 U.S. 413, 415-16 (1923);
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 486-87 (1983)). The
doctrine applies when four factors are present: (1) the federal-court plaintiff lost in state
court, (2) the plaintiff seeks redress for injuries caused by the state court judgment, (3)
the plaintiff seeks federal court review of the state court judgment, and (4) the state
court judgment was issued before the federal action was filed. Hoblock v. Albany Cnty.
Bd. of Elections, 422 F.3d 77, 85 (2d Cir. 2005). All those factors appear to be present
here for any custody decisions that already have been made.
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In other words, this Court does not have the authority to intervene in Graesser’s
ongoing state-court custody proceedings nor second-guess any custody decisions
made by the state court. Graesser’s requests for injunctive relief in the form of an order
returning her son to her or halting the ongoing custody proceedings therefore are
denied and dismissed without leave to amend because amendment would be futile, see
Cuoco, 222 F.3d at 112.
SECTION 1983 CLAIMS AGAINST CHAIRMAN VANRENSSELAER AND
“To state a valid claim under 42 U.S.C. § 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)). “[T]o act under color of
state law, a person must have exercised power ‘possessed by virtue of state law and
made possible only because the wrongdoer is clothed with the authority of state law.’”
Phillips v. Goord, 2009 WL 909593, at *3 (W.D.N.Y. Apr. 1, 2009) (citing Polk Cnty. v.
Dodson, 454 U.S. 312, 317-18 (1981) (quoting United States v. Classic, 313 U.S. 299,
326 (1941))). Moreover, “a plaintiff must plead and prove ‘that each Government-official
defendant, through the official’s own individual actions, has violated the Constitution.’”
Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (citing Ashcroft v. Iqbal, 556
U.S. 662, 676 (2009)). It is not enough to assert that the defendant is a “link in the 
chain of command.” See McKenna v. Wright, 386 F.3d 432, 437 (2d Cir. 2004).
Graesser names Chairman VanRensselaer as a defendant but has not made any
allegations against him. See Docket Item 1 at 2-5. Because personal involvement is a
Case 1:22-cv-00320-LJV Document 3 Filed 05/06/22 Page 8 of 12
prerequisite to liability under section 1983, Graesser has failed to state a viable section
1983 claim against Chairman VanRensselaer.
Likewise, Graesser has failed to state a viable section 1983 claim against
Commissioner Cannon. Graesser says that “Erie County CPS/DSS took [her] son with
no written or verbal warning,” but she does not allege that Commissioner Cannon
personally violated her federal or constitutional rights in any way. See Docket Item 1 at
4. And as noted above, personal involvement is required for liability under section
1983—even for defendants in supervisory positions.
Nevertheless, and in light of Graesser’s pro se status, see generally Cuoco, 222
F.3d at 112, Graesser may amend her complaint to allege, if possible, how Chairman
VanRensselaer and Commissioner Cannon were personally involved in violating her
Graesser also asserts the ADA as a basis for her claims and asks this Court to
order “the cessation of ADA . . . violations.” See Docket Item 1 at 4. “Title II of the ADA
requires 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.’” Wright
v. N.Y. State Dep’t of Corr., 831 F.3d 64, 72 (2d Cir. 2016) (quoting 42 U.S.C. § 12132).
To state a claim under this statute, a plaintiff must allege “(1) that he is a ‘qualified
individual’ with a disability; (2) that 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 his disability.” Hargrave
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v. Vermont, 340 F.3d 27, 34-35 (2d Cir. 2003) (citing 42 U.S.C. § 12132); Henrietta D. v.
Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003).
Graesser does not allege that she was discriminated against because of a
disability, but she alleges that her son has a disability and seems to assert this claim on
behalf her son. See supra, at 4 & n.3.
Although federal law affords parties a statutory right to “plead and conduct their
own cases,” 28 U.S.C. § 1654, that statute does not permit “unlicensed laymen to
represent anyone else other than themselves,” Lattanzio v. COMTA, 481 F.3d 137, 139
(2d Cir. 2007) (quoting Eagle Assocs. v. Bank of Montreal, 926 F.2d 1305, 1308 (2d Cir.
1991)); see also Tse-Ming Cheung v. Youth Orchestra Found. of Buffalo, Inc., 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.”). Therefore, to the extent that Graesser
seeks to bring ADA claims on behalf of her son, Graesser may not represent her son in
this action and those claims are subject to dismissal. If Graesser’s son would like to
pursue those claims, an attorney must enter an appearance to represent Graesser’s
son and file an amended complaint that names Graesser’s son as a plaintiff, and an
attorney may do so within 45 days of the date of this order. Otherwise, the claim that
Graesser’s son was discriminated against in violation of the ADA will be dismissed
Because Graesser meets the statutory requirements of 28 U.S.C. § 1915(a), the
Court grants her request to proceed in forma pauperis, and her claims for damages
against Judge LoVallo may proceed. But her claims for injunctive relief asking this
Case 1:22-cv-00320-LJV Document 3 Filed 05/06/22 Page 10 of 12
Court to intervene in her ongoing state-court custody proceeding are dismissed under
28 U.S.C. § 1915(e)(2), and her claims against Chairman VanRensselaer and
Commissioner Cannon will be dismissed under those same sections unless she files an
amended complaint within 45 days of the date of this order that corrects the
deficiencies noted above and otherwise complies with Rules 8 and 10 of the Federal
Rules of Civil Procedure. To the extent that Graesser seeks to bring an ADA claim on
behalf of her son, her son’s ADA claims will be dismissed unless within 45 days of the
date of this order, an attorney enters an appearance to represent Graesser’s son and
files an amended complaint naming Graesser’s son as a plaintiff.
Graesser is advised that an amended complaint is intended to completely
replace the prior complaint in the action and thus “renders [any prior complaint] of no
legal effect.” Int’l Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977); see also
Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994). Therefore, any
amended complaint must include all allegations against each of the defendants so that
the amended complaint stands alone as the only complaint that the defendants must
answer in this action.
In light of the above, IT IS HEREBY
ORDERED that Graesser’s motion to proceed in forma pauperis, Docket Item 2,
is GRANTED; and it is further
ORDERED that Graesser’s claims for injunctive relief asking this Court to
intervene in an ongoing state-court custody proceeding are DISMISSED; and it is
Case 1:22-cv-00320-LJV Document 3 Filed 05/06/22 Page 11 of 12
ORDERED that Graesser may amend her complaint within 45 days of the date
of this order; and it is further
ORDERED that the Clerk of Court shall send to Graesser with this order a copy
of the original complaint, a blank non-prisoner complaint form, and the instructions for
preparing an amended complaint; 8 and it is further
ORDERED that if Graesser does not file an amended complaint correcting the
deficiencies noted above within 45 days of the date of this order, her claims against
Chairman VanRensselaer and Commissioner Cannon will be dismissed without further
order and the Clerk of Court shall terminate Chairman VanRensselaer and
Commissioner Cannon as defendants to this action; and it is further
ORDERED that unless within 45 days of the date of this order an attorney
enters an appearance to represent Graesser’s son and files an amended complaint
naming Graesser’s son as a plaintiff, her son’s ADA claims will be dismissed without
prejudice without further order; and it is further
ORDERED that if Graesser does not file an amended complaint correcting the
deficiencies noted above within 45 days of the date of this order, the Clerk of Court
shall cause the United States Marshals Service to serve copies of the summons,
complaint, and this order upon defendant Judge LoVallo, without the plaintiff’s payment
The plaintiff is advised that she may be eligible for help in amending her
complaint from the Pro Se Assistance Program, a joint project staffed by the University
at Buffalo School of Law and the Erie County Bar Association Volunteer Lawyers
Project. The program can be reached by calling 716-847-0662, ext. 340, and leaving a
message. Additional information is available at https://www.nywd.uscourts.gov/pro-seassistance-program-0.
Case 1:22-cv-00320-LJV Document 3 Filed 05/06/22 Page 12 of 12
therefor, unpaid fees to be recoverable if this action terminates by monetary award in
the plaintiff’s favor; and it is further
ORDERED that Graesser must effect service within 90 days of the date the
summons is issued. It is Graesser’s responsibility to inquire of the Marshals at 716-3485300 as to whether service has been made and, if necessary, to request an extension
of time for service. See Meilleur v. Strong, 682 F.3d 56, 63 (2d Cir. 2012). If, within 90
days of issuance of the summons, Graesser has not made service or requested an
extension of time in which to do so, the Court may dismiss this action for failure to
prosecute under Rules 4(m) and 41(b) of the Federal Rules of Civil Procedure; and it is
ORDERED that Graesser shall notify the Court in writing if her address changes.
The Court may dismiss the action if Graesser fails to do so.
May 6, 2022
Buffalo, New York
/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
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