Jackson v. New York State et al

Filing 178

ORDER granting 167 Motion to Dismiss. Clerk to follow up. Signed by Hon. Michael A. Telesca on March 6, 2012. (MES)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
DONA J. JACKSON,
Plaintiff,

06-CV-6364
ORDER

v.
NEW YORK STATE, et al.,
Defendants.
________________________________________
INTRODUCTION

Plaintiff Dona J. Jackson (“Plaintiff”), proceeding pro se,1
brings this action pursuant to 42 U.S.C. § 1983 and New York state
law alleging various deprivations of her constitutional rights and
state law, relating to her allegedly antagonistic relationship with
the New

York

State

Police

and

various

other

law

enforcement

agencies, judges, and district attorneys since 1993.

In this

lawsuit, Plaintiff formally names as defendants, New York State,

1

Plaintiff was initially represented by counsel in the Northern District of New York, but
on July 29, 2004, her attorney’s motion to withdraw was granted by Magistrate Judge David E.
Peebles. Plaintiff then represented herself in the Northern District and in this District after the
case was transferred here by Judge Peebles on June 30, 2006. Plaintiff then filed several
duplicative, exceedingly long and combative motions in this Court, after previously neglecting to
prosecute her case for several years. Consequently, the Court directed Magistrate Judge Marian
W. Payson to hold a hearing to determine, inter alia, whether Plaintiff should be appointed
counsel. Plaintiff indicated at the hearing that she wanted to continue to represent herself.
(Docket No. 166 at 3.) While Plaintiff is now proceeding pro se, which requires the Court to
consider her pleadings liberally, the Court notes that Plaintiff is an experienced litigant who is
familiar with the rules and procedures in federal court, having participated in several lawsuits in
the Western District of New York (Civil Case Nos. 02-CV-6204; 01-CV-6382; 02-CV-6536; 03CV-6179); she has refused the appointment of counsel to assist her with the drafting of pleadings
and motions; and at the outset of this litigation she was represented by counsel who presumably
assisted her in drafting several of the complaints filed in this action.
1

the New York State Police (“NYSP”), former NYSP Superintendent,
James W. McMahon, NYSP Troop E officers, troopers and employees,
sixteen individual NYSP officers and investigators and 65 unnamed
Jane and John Does (collectively, “Defendants”). Plaintiff alleges
that these defendants as well as many other “co-conspirators” and
“terrorists”

have

engaged

in

a

pattern

of

unlawful

and

unconstitutional conduct since early 1993 including, inter alia, at
least eleven false arrests, several malicious prosecutions, assault
and battery, fraud, perjury and First Amendment retaliation.

The

Court now considers Defendants’ Motion to Dismiss Plaintiff’s Third
Amended Complaint.
PROCEDURAL BACKGROUND
This case has a long and tortured history and, despite being
filed in the Northern District of New York on May 9, 2003, it has
failed to progress past the pleading stage for the last nine years.
(NDNY Docket

Sheet,

Civil

Docket

No. 129,

Attachment

2).

In

addition to her original complaint, Plaintiff filed three amended
complaints in the Northern District of New York.

The Defendants

moved to dismiss the Second Amended Complaint on February 2, 2005,
and Plaintiff cross-moved for the immediate production of documents
and to enjoin the New York State Attorney General from representing
the Defendants.

Defendants motion was granted-in-part and denied-

in-part, and Plaintiff’s motion was denied in all respects on
August 16, 2005 by Senior District Judge Howard G. Munson.

2

Specifically, Judge Munson dismissed Plaintiff’s claims arising
under

the

Racketeer

Influenced

and

Corrupt

Organizations

Act

(“RICO”) and her claims for conspiracy, but he found that she could
proceed with the remaining claims, even those that were seemingly
time-barred, as she had alleged a “continuing violation.”

See

Jackson v. New York State, 381 F.Supp.2d 80 (N.D.N.Y. 2005).
Following Judge Munson’s decision, the Defendants answered the
Second Amended Complaint. However, Defendants then learned that
Plaintiff had served a different complaint on the Defendants than
that which was filed with the Court.

(NDNY Docket, 10/28/2005.)

Plaintiff then filed a motion to file a Third Amended Complaint.
The Defendants’ initially opposed the motion, but later stipulated
to the filing of the Third Amended Complaint.

The Defendants also

notified the Court on February 27, 2006 that Plaintiff had filed a
related case in the Western District of New York almost two years
prior on August 8, 2001 (Jackson v. Axsmith, Civil No. 01-CV-6382
(“Axsmith”), in which she alleged many of the same claims and named
several

of

the

same

defendants.

Plaintiff’s failure to prosecute.

Axsmith

was

dismissed

for

(NDNY Docket 2/27/2006.)

In the meantime, in addition to her motion to amend, Plaintiff
filed several other motions requesting that the Court (1) compel
discovery, (2) disqualify the Assistant Attorney General assigned
to the case from representing the Defendants, and (3) appoint a
special prosecutor and/or convene a grand jury to investigate her

3

allegations.

The Defendants cross-moved to transfer the case to

the Western District of New York.

On June 30, 2006, Magistrate

Judge David E. Peebles issued an order denying all of Plaintiff’s
requests and transferring this case to this District. Judge Peebles
noted that this District would be better equipped to resolve the
impact of the dismissal of the Axsmith case on Plaintiff’s claims
in this case, as the Axsmith case “involv[ed] many of the same
claims

and

operative

facts,

as

well

as

some

of

the

same

defendants.” (Docket No. 129-2 at 18.) Accordingly, on July 21,
2006 the case was transferred to this Court.
This case has had a similarly circuitous history in this
District.

Upon transfer, Plaintiff filed a “combined motion” in

which she requested, inter alia, that this Court (1) reconsider
and/or vacate Judge Peebles transfer order, (2) enjoin the NYS
Attorney General and the assigned Assistant Attorney General from
representing the Defendants, (3) order a default against the
Defendants for failing to answer the Third Amended Complaint, (4)
empanel a grand jury and/or a special prosecutor to investigate her
case, and (5) disqualify Judge Peebles from presiding over this
case. On February 6, 2007, this Court denied Plaintiff’s motion in
its

entirety.

The

Court

specifically

noted

that

several

of

Plaintiff’s requests were improper and/or had already been denied
in the Northern District, and that Plaintiff’s request for a
default was premature, as it appeared that the Third Amended

4

Complaint had never actually been served on the Defendants.2

The

Court also dismissed Plaintiff’s claims for conspiracy and RICO
violations, which had previously been dismissed in the Northern
District.
which

was

Plaintiff filed an interlocutory appeal of this order,
partially

dismissed

for

lack

otherwise dismissed for lack of merit.

of

jurisdiction

and

(Docket No. 143.)

Having not heard from the Plaintiff since she filed her
“combined motion” in 2006, on April 18, 2011, this Court issued an
Order to Show Cause pursuant to Federal Rule of Civil Procedure
41(b)(“Rule 41(b)”), why this case should not be dismissed for
Plaintiff’s failure to prosecute. Plaintiff responded by filing a
response and two additional lengthy and argumentative motions,
which sought much of the same relief that had already been denied
by this Court and by Judge Munson and Judge Peebles in the Northern
District

on

multiple

occasions.

Plaintiff

was

warned

that

continuing to file repetitive and frivolous motions may result in
sanctions under Federal Rule of Civil Procedure 11 (“Rule 11").
(Docket No. 154.)
This Court then referred the matter to Magistrate Judge Marian
W. Payson to hold a status conference to facilitate moving the case
forward and to determine whether counsel should be appointed for
the Plaintiff.

As discussed in footnote 1, Plaintiff refused the

2

Despite being informed that she must properly serve the Third Amended
Complaint, the docket does not indicate that Plaintiff has done so.

5

appointment

of

counsel,

but

she

continued

to

file

numerous

frivolous motions with the Court. (Docket No. 163, 166, 176.) She
has been repeatedly warned by the Court that the filing of such
motions may result in sanctions under Rule 11, including the
dismissal of her case for her failure to follow the orders of this
Court.
Then, on November 16, 2011, Defendants filed the instant
Motion to Dismiss Plaintiff’s Third Amended Complaint.3 (Docket No.
167.) Plaintiff did not respond to the instant motion, but instead
filed another duplicative, lengthy (approximately 300 pages) and
combative motion for miscellaneous relief on December 27, 2011.
This Court denied the motion for Plaintiff’s failure to follow the
orders of this Court regarding the filing of motions.

(Docket No.

177.)
Defendants’ Motion to Dismiss raises, for the first time, the
issue of res judicata, and it also raises several issues that were
previously decided by Judge Munson in his Order denying Defendants’
Motion to Dismiss the Second Amended Complaint.

The Court will

address the issue of res judicata and, as discussed in more detail
below, the Court will also re-examine the statute of limitations
issues previously raised by the Defendants.
3

The Defendants’ motion papers do not indicate whether they were ever properly served
with the Third Amended Complaint, nor do they discuss the propriety of filing a motion to
dismiss at this stage. However, the Court will not address these potential issues, as the
procedural history in the case is uncommonly complicated and I find that it is in the interest of
justice and judicial economy to determine the instant motion on the merits.
6

FACTUAL BACKGROUND
This case involves the conflicting claims of two actions filed
by the Plaintiff in this Court.

Accordingly, the Court must

examine the facts of both cases to determine whether Plaintiff may
proceed with any of the claims alleged in this case.
Plaintiff’s
incomprehensible.
allegations,

they

complaints

are

lengthy

and,

at

times,

some

factual

While

Plaintiff

sets

forth

are

interlaced

with

repeated

conclusory

statements regarding the defendants conduct; which, according to
the Plaintiff, involved, inter alia, “domestic terrorist” activity,
“prisoner

of

war

tactics”

and

“kangaroo

trials.”

She

also

repeatedly compares the defendants in both cases to the Ku Klux
Klan and the Nazis.

The Court has thoroughly reviewed both of the

Complaints in an attempt to compare the actual factual allegations.
But, considering the nature of the submissions, a side-by-side
comparison of the complaints is futile.4

The Court has, however,

gleaned the following factual allegations from the complaints:
Plaintiff’s Axsmith Complaint
(A) Axsmith Defendants
Plaintiff filed the Axsmith complaint in this Court on August

4

W hile the Court does not dismiss the Third Amended Complaint for this reason, it is notable that, in
applying the requirements of Rule 8 of the Federal Rules of Civil Procedure to complaints which contain too much
detail, the Second Circuit has emphasized dismissal under Rule 8(a) is appropriate in “cases in which the complaint
is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised[.]”
Shomo v. New York, 374 Fed. Appx. 180, 182 (2d Cir. 2010)(internal quotations omitted).

7

8, 2001. In that action, she and her husband, Peter D. Jackson5,
alleged

claims

against

many

state

and

local

law

enforcement

officials and judicial officers, including district attorneys and
judges.

She

specifically

named

as

defendants

the

following

individuals who are also named as defendants in this case: NYSP
Superintendent James W. McMahon, NYSP officers Weston, Cerretto,
and Coots, NYSP Troop E Commander, Major Mark Fischer, and many
unknown Jane and John Doe NYSP troopers. Whether named or unnamed,
both complaints relate events in which many of the same individuals
are alleged participants.
(B) Axsmith Allegations
Under a heading entitled “Nature of Suit,” Plaintiff alleges
that the Defendants have engaged in a “scorched earth” campaign
against her, which has resulted in the denial of her constitutional
rights and has caused her emotional and physical injury, and by
which she has been denied medical treatment and “non-biased/nonprejudicial access to...law enforcement [and the] legal [and]
judicial system.”

She states that she was the victim of false

arrests and malicious prosecutions and that the Defendants were
“criminally targeting, victimizing and harassing” her and her
husband.

She also states that the Defendants violated RICO.

At

various locations in the complaint she states that she is seeking

5

While Plaintiff’s husband was a named plaintiff in Axsmith, it appears that most, if not
all, of the allegations relate to the Plaintiff in this case only.
8

an “Order of Protection” preventing the Defendants from “any
further felonious [and] unconstitutional reprisals, crimes, false
arrests, unlawful incarcerations, State Police/Sheriff Deputies’
violent brutality, battering, bruising, dragging, etc.”
While not cogently or chronologically describing the facts,
the Axsmith complaint relates the following events6:
(1)

an

arrest

and

prosecution

for

Aggravated

Unlicenced

Operation of a Motor Vehicle in the third Degree (“AUO 3rd”) on or
around November 30, 1998. Prior to her arrest, Plaintiff was parked
in front of the NYSP Troop E barracks (apparently carrying a tape
recorder to record any conduct of the law enforcement agents).
After this arrest, Plaintiff states that she was “not handcuffed
[and] her Miranda Rights were not read to her,” but she was
arraigned before Farmington Town Justice Charles R. Cooksey, who
set bail at $500.

Plaintiff could not afford bail and remained in

Ontario County Jail for approximately three days. Plaintiff states
that

the

district

attorney

and

Judge

Cooksey

recommended

reduction in the charge, but she refused to accept the offer.

a

She

objected to the fact that a jury trial did not occur by refusing to
attend the bench trial held on this charge, and she states that she
“continues to strongly believe that if she appears at these bench
trials Justice Cooksey, D.A. Tantillo [and] his A.D.A.s would
6

The Axsmith Complaint is attached to Defendants’ Motion to Dismiss as Exhibit 1A-G,
as Plaintiff split her complaint into several subparts. At this stage, all of the facts are taken from
the complaint and are accepted as true.
9

railroad her into a guilty conviction.”

Plaintiff’s driver’s

licence was suspended in September 2000, apparently based on her
failure to appear in court.

From the Complaint in this action, it

also appears that Justice Cooksey charged Plaintiff with Criminal
Contempt for failing to appear in court, and sentenced her to 30
days in Ontario County Jail.
(2) an arrest for 4th degree criminal possession of a weapon
in

October

1999

while

Plaintiff

was

at

the

Ontario

County

Courthouse. Plaintiff states that this was a “setup” and that the
arresting officers lied during the trial for this offense, which
apparently occurred in July 2000 before Canandaigua City Court
Judge Stephen D. Aronson.
(3) an incident in May 2000 in which a Village of Wolcott
police officer and NYSP officer Weston “trespassed on Plaintiffs’
property”

and

“forcibly

[and]

violently

conducted

an

[u]nconstitutional non-warranted armed home invasion/break in of
Plaintiff’s home.” The officers were seeking to arrest Plaintiff’s
son.
(4) from April 2, 2000 to June 16, 2001, she was denied
“justice/ a jury trial and was subject to unlawful incarcerations,
false arrests, setup/frames, etc.”
(5) a suspension of Plaintiff’s driver’s licence by Justice
Patricia Axsmith in May or June 2001, based on her failure to
appear in court;

10

(6) instances of possible excessive force on April 18, 2001
and April 30,2001 by the NYSP and possibly the Ontario County
Sheriffs relating to her arrest for Criminal Contempt.
(7) an involuntary transport to the Hutchings Psychiatric
Center on April 30, 2001 ordered by Justice Axsmith;
(C) Dismissal of Axsmith Complaint
One year after denying Plaintiffs’ request for service by the
U.S. Marshal, this court issued an Order to Show Cause why this
case should not be dismissed for Plaintiffs’ failure to prosecute
pursuant to Rule 41(b). (Civil Docket 01-CV-6382, No. 3-4.)

The

Court warned Plaintiffs that the case would be dismissed with
prejudice if they failed to show good cause for the delay.
Plaintiffs then filed a response to the order and several motions for service by the US Marshal, to proceed in forma pauperis and for
the appointment of counsel. District Judge David G. Larimer denied
the

motions

and

dismissed

the

Axsmith

complaint,

finding

Plaintiffs’ response insufficient and their motions moot. (Exhibit
2 to Def. Motion to Dismiss, Docket No. 168.) Plaintiffs appealed
this Order, and the Second Circuit Court of Appeals dismissed the
appeal and denied Plaintiffs’ motions for in forma pauperis status
and the assignment of counsel finding that the appeal “lack[ed] an
arguable basis in law or in fact.” (Civil Docket 01-CV-6382 No.
12.)

11

Complaint in this Action
In this Complaint, in approximately 54 pages of largely
conclusory and argumentative verbiage, Plaintiff alleges twelve
enumerated7 cases of action against the NYSP defendants relating to
the following factual events:
Beginning in 1993, Plaintiff and her neighbors engaged in a
property dispute in which Plaintiff was, at one point, awarded an
Order of Protection against her neighbors by a Conquest Town
Justice.

Plaintiff complained to the NYSP on several occasions

that her neighbors were not respecting the Order of Protection and
that they had, inter alia, destroyed her shrubs and taken and
killed her ducks.

The NYSP initially refused to intervene, but

eventually Defendant NYSP Trooper Dennis Freeman interviewed the
neighbors who admitted to stealing and killing the ducks.
did not make an arrest based on this information.

Freeman

Plaintiff then

attempted to file a formal complaint against her neighbors, but she
was prevented from doing so by NYSP Sergeant Campbell (not a named
defendant).
In March and April 1995, Plaintiff met with Defendant NYSP
Captain Donald Swain on several occasions to discuss her complaints
with the neighbors and the NYSP’s lack of response and refusal to
enforce the Order of Protection.

7

Defendant Swain asked Plaintiff

The claims numbered “Three” (Conspiracy) and “Eleven” (RICO violations) were
previously dismissed.
12

to sign a written statement regarding her complaint but she “did
not sign NYSP Captain Swain’s statement because her Miranda Rights
were on the statement [and] the dates [and] facts were incorrect.”
She felt that the NYSP was attempting to “entrap” her by asking her
to sign the statement.

She alleges that her complaints were never

investigated and that following her meetings with Swain, “the NYSP
employee’s

cruel,

inhuman

[and]

debase,

retaliatory

attacks,

kidnappings (a.k.a. false arrests), unlawful imprisonments [and the
like] against Plaintiff, exponentially increased [and] became even
more frequent, intense, violent [and] vicious.” Compl. at ¶¶ 88-99.
Plaintiff

attached

to

her

complaint

a

document

labeled

“Exhibit ‘A’”, in which she describes the following false arrests,
some of which led to prosecutions, which she also alleges were
unlawful:8
(1) On August 16, 1994, Plaintiff was forcefully arrested by
approximately 10 NYSP employees after being stopped in her car.
Plaintiff was involuntarily transported to a psychiatric center
where she was evaluated and found not to be suffering from any
psychological

disease.

It

is

unclear

from

the

complaint

why

Plaintiff was stopped, and it does not appear that any charges were

8

At least one of these arrests (on September 11, 1993) did not involve
the NYSP, and Plaintiff has not named any other law enforcement agency in this
lawsuit. Accordingly, to the extent that Plaintiff is seeking to bring claims
with respect to an alleged unlawful arrest and/or prosecution that did not
involve the defendants named in this lawsuit, any such claim is hereby
dismissed. The Court will only discuss the events in which the named
defendants are alleged to have acted unlawfully.

13

filed in relation to this event.
(2)

On

September

11,

1994,

Plaintiff

was

arrested

harassment based on a complaint filed by her neighbor.

for

Plaintiff

states that this charge was later dismissed “in the name of
justice.”
(3)

On

June

15, 1995,

Plaintiff

was

again

arrested

for

harassment based on a complaint filed by her neighbor, and she was
also later charged with reckless endangerment, which appears to be
related to the same incident. Both charges were dismissed on
February 23, 1998.
(4) On February 20, 1997, Plaintiff was stopped and cited for
speeding.
(5)

The citations were later dismissed.
On

harassment,

February

20,

based

on

“attacker/assailant.”

1998,
a

Plaintiff
complaint

was
by

arrested

for

Plaintiff’s

Plaintiff alleges that she was the actual

victim, but the NYSP prevented her from making a complaint, and
instead placed her under arrest.

She alleges that the NYSP’s co-

conspirators, Wayne County Justice Lester Taber and a Wayne County
assistant district attorney, held “an unconstitutional trial,” that
Plaintiff did not attend.

Justice Taber granted Plaintiff a

conditional discharge, but issued an Order of Protection in favor
of Plaintiff’s “attacker.”
(6) On November 30, 1998, Plaintiff was arrested for AUO 3rd
while she was picketing in front of the NYSP Troop E barracks. See

14

pg.

8-9

supra

for

additional

details,

alleged

in

both

this

complaint and the complaint in Axsmith.
(7) On June 10, 1999, Plaintiff was issued a ticket under New
York Vehicle and Traffic Law Section 1202 (a parking violation),
while she was “exercising one of her First Amendment inalienable
rights of freedom of expression on Route 104,” in Sodus, New York.
She alleges that a “kangaroo trial” was held in her absence and she
was fined $100.

She alleges that Defendant Mowers committed

perjury during the trial.
(8) On September 30, 1999, Plaintiff was issued three traffic
tickets while driving in the town of Pittsford, New York. She
alleges that “co-conspirator” Pittsford Town Court Justice Gallina,
refused to dismiss the tickets and a trial was held at which
Defendant Bosworth committed perjury.
of

one

of

the

three

traffic

Plaintiff was found guilty

violations,

but

the

charge

was

conditionally discharged and Plaintiff was not fined.
(9) While not a false arrest, Plaintiff also alleges that on
May 15, 2000, Defendant Weston unlawfully broke into her home.9
(10)

On

September

25,

2000,

Plaintiff

was

stopped

by

Defendants Burdette and Klinkman and issued a ticket for driving to
the left of pavement markings.

9

The allegations relating to the May 15, 2000 “home invasion” were included in the
Axsmith Complaint.
15

(11) On April 18, 200110, Plaintiff was arrested for Criminal
Contempt. This arrest was allegedly related to her previous arrest
on November 30, 1998 for AUO 3rd. She states that she suffered
“police brutality, mental emotional psychological rape, trauma,
terror, bruising to her arms [and] wrists, torture, assault, abuse,
trauma and shock.”
Town of Farmington Justice Patricia Axsmith allegedly yelled
at the Plaintiff for having filed judicial misconduct complaints
against Justice Cooksey. Plaintiff was found to be carrying a tape
recorder under her clothing and she was escorted out of the
courtroom with force, and placed in a “suicide suit.” She alleges
that she suffered injury to her wrists and arms during this arrest.
She was then taken to a “high security isolated medical area where
she [was] left until April 22, 2001.”

Plaintiff alleges that she

was in a catatonic state during this time.

Justice Axsmith

dismissed the Criminal Contempt charge and ordered that Plaintiff
be evaluated at the Hutching’s Psychiatric Center in Syracuse, New
York.

She was transported there on April 30, 2001 and found not to

be suffering from any mental disorder.
(12) On May 31, 2001, Plaintiff was allegedly arrested for
Criminal Contempt and Resisting Arrest and forcefully removed from
her vehicle, causing injury to her arm and breaking her car window.

10

The allegations relating to the events in April 2001 were included in Plaintiff’s Axsmith
Complaint, albeit in less detail.
16

Plaintiff states that the charge “was a retaliatory charge” for the
April 2001 events and that both charges related to the April 18,
2001 incident.
(13) On July 21, 2001, Plaintiff was charged with possession
of a forged instrument for allegedly forging a notice of appearance
relating to the her appearances in court before Judge Axsmith, for
the purpose of obtaining a driver’s license. Plaintiff alleges that
a Monroe County Grand Jury “dismissed” this charge.
DISCUSSION
A complaint must plead “enough facts to state a claim to
relief that is plausible on its face.”
Twombly, 550 U.S. 544, 570 (2007).

Bell Atlantic Corp. v.

A claim will be considered

plausible on its face “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. 662, 129 S.Ct. 1937, 1949 (2009).

Ashcroft v.
Although a pro

se complaint must contain sufficient factual allegations to meet
the plausibility standard, it is held to less stringent standards
than pleadings drafted by lawyers, see Erickson v. Pardus, 551 U.S.
89, 94 (2007), and the court is obliged to construe plaintiff's
pleadings liberally and interpret them as raising the strongest
arguments they suggest.

See Burgos v. Hopkins, 14 F.3d 787, 790

(2d Cir.1994).

17

I.

Res Judicata

Defendants first argue that many, if not all, of Plaintiff’s
claims should be dismissed on the basis of res judicata, as she
raised many of the same claims and presented many of the same facts
against

many

of

the

same

defendants

in

the

Axsmith

case.

Defendants argue that the facts, while consisting of several
different events (some alleged in both cases, some alleged in one
or the other), arise out of “common nucleus of operative fact,” as
the underlying theory for relief in both actions was “a conspiracy
amongst NYSP, a host of court and law enforcement personnel, and
myriad

other

officials

[from]

various

counties,

to

deprive

Plaintiff of her civil rights” by subjecting her to allegedly
unlawful retaliation in the form of, inter alia, false arrests and
unlawful prosecutions.

Def. Mem. of Law at 14.

To determine whether the doctrine of res judicata applies to
preclude litigation, the Court must determine whether the judgment
in the previous action was: “(1) a final judgment on the merits,
(2) by a court of competent jurisdiction, (3) in a case involving
the same parties or their privies, and (4) involving the same cause
of action." Stephenson v. Dow Chemical Co., 273 F.3d 249 (2nd Cir.
2001)(citing Anaconda-Ericsson Inc. v. Hessen (In re Teltronics
Servs., Inc., 762 F.2d 185, 190 (2d Cir., 1985)). As noted above,
Plaintiff’s complaint in Axsmith was dismissed pursuant to Rule
41(b), which “[u]nless the dismissal states otherwise...operates as

18

an adjudication on the merits.” Fed. R. Civ. P. 41(b).

The

dismissal did not state otherwise, and Plaintiff was specifically
warned that her case would be dismissed with prejudice if she did
not show good cause for her failure to prosecute. Accordingly, the
Rule 41(b) dismissal was an adjudication on the merits.
Further, Plaintiff’s complaint in Axsmith raised claims
against the NYSP and NYSP divisions and officers (several of whom
are also specifically named in this suit) and many unidentified
NYSP officers.

Res judicata bars the assertion of the same causes

of action against the defendants that were specifically named in
both lawsuits.

Further, the relationship of the NYSP defendants

named in the Axsmith suit and those named only in this lawsuit is
sufficiently close for this Court to find that the “the principle
of privity bars relitigation of the same cause of action against
[the] new defendant[s].” See Central Hudson Gas & Elec. Corp. v.
Empresa Naviera Santa S.A., 56 F.3d 359, 367-8 (2d Cir. 1995).

All

of the named defendants in this action (while perhaps not known by
name) were known to the Plaintiff at the time of the filing of the
Axsmith case as NYSP officers who were allegedly engaging in a
pattern of unlawful conduct as a group.

The NYSP defendants in

both actions are members of the same organization, and many are
presumably members of the same division, Troop E.

NYSP Troop E is

named in this lawsuit, and its Commander, Mark Fischer, is named
and identified as the Commander of Troop E in both suits.

19

Further,

Plaintiff names Jane and John Doe state troopers in both lawsuits.
Accordingly, the Court finds that the defendants in both actions
are in privity with one another such that the claims that were
asserted in Axsmith are now barred by the doctrine of res judicata.
The following identical events (while alleged in more or less
detail

in

either

suit)

are

alleged

in

both

complaints

(1)

Plaintiff’s arrest for AUO 3rd, (2) subsequent arrests for Criminal
Contempt, (3) the involuntary transfer to the Hutchings Psychiatric
Center, and (4) the May 2000 entry of Defendant Weston into her
home.

Therefore, any claims based on these factual events are

barred by res judicata.

See Waldman v. Village of Kiryas Joel, 207

F.3d 105, 110-111 (2d Cir. 2000)(“plaintiff cannot avoid the
effects of res judicata by ‘splitting’ his claim into various
suits, based on different legal theories (with different evidence
‘necessary’ to each suit)”).
Next, the Court must decide whether the remaining claims are
sufficiently related such that they arise from the same “nucleus of
operative fact,” and are therefore barred by res judicata. Id. at
108 (“Res judicata...makes a final, valid judgment conclusive on
the parties, and those in privity with them, as to all matters,
fact and law, [that] were or should have been adjudicated in the
proceeding.”)

Two claims are one for the purposes of res judicata

if they are based on the same, or nearly the same, factual
allegations

such

that

they

may

20

reasonably

be

considered

to

constitute

“a

single

transaction

transactions.” Id. (quoting

or

a

connected

series

of

Interoceanica Corp. v. Sound Pilots,

Inc., 107 F.3d 86, 91 (2d Cir. 1997)). In deciding this issue, the
Court considers such factors as whether the facts are related in
time, space, origin, or motivation; whether they form a convenient
trial unit; and whether their treatment as a unit conforms to the
parties' expectations. See Id. at 108; see also Interoceanica, 107
F.3d at 90; Teltronics 762 F.2d at 193 (res judicata barred second
action where “all the facts necessary to support the claims... were
pleaded, or could have been pleaded, in the first action.”).
Plaintiff’s remaining allegations can be viewed from two
perspectives - (1) as a series of unlawful reprisals against the
Plaintiff originating from the same organization with the shared
intention of harassing and threatening the Plaintiff in response to
confrontations that occurred with her for more than ten years; or
(2) as separate instances of misconduct that, while numerous, are
not related in time, space, origin or motivation - each involving
different individuals, with different motivations.

If viewed from

the first perspective, it would seem that Plaintiff’s allegations
may be barred by the doctrine of res judicata, as they consist of
a series of connected events - some of which were pleaded in the
first action and others which could have been pleaded in the first
action - all occuring prior to the filing of the first action.

In

contrast, if viewed from the perspective that each event involved

21

different individuals, at different times, motivated for different
reasons, many of the allegations would not be barred by res
judicata.
Viewing Plaintiffs complaint as a whole, the Court finds that
it is more reasonable to view the events alleged in the complaint
as separate instances of misconduct, because each factual event
alleged occurred under vastly different circumstances. The arrests
and/or issuances of traffic citations were effectuated by different
individuals at different times for different reasons. For example,
the arrests

based

on

the

complaints

of

her

neighbors

cannot

reasonably be compared to the traffic citations she received for
speeding or the parking violation that was issued while she was
protesting outside of the NYPS barracks.

Further, the alleged

arrests and/or traffic stops and the alleged prosecutions occurred
in different towns and rarely involved similar charges.
Accordingly, the Court does not find that it is appropriate to
consider

these

transactions.

events

as

a

single

transaction

or

series

of

The Court notes that Plaintiff’s allegations that

these arrests were connected in that they represent a pattern of
reprisals by the NYSP are conclusory, and are not supported by the
record.

Plaintiff’s claims for any coordinated conduct were

dismissed more than once, and Plaintiff has not alleged how any of
these events are connected factually.

For example, Plaintiff has

not alleged that the same officers were party to several similar

22

arrests for similar

lawful conduct.

The Court also notes that

several of Plaintiff’s allegations of unlawful conduct, even read
in the light most favorable to the Plaintiff, are instances of
individuals acting with the motivation of helping the Plaintiff for example, courts attempting to lower charges or dismissing
charges in the interests of justice without a trial.

Accordingly,

it is hard to reason that all of the actions of the defendants and
their alleged “co-conspirators” were part of a larger plot to
violate the Plaintiff’s constitutional rights.
The only factual events which were not specifically asserted
in the Axsmith action, but which are sufficiently related so as to
constitute part of the same series of transactions are (1) the July
21, 2001 arrest in which Plaintiff was charged with possession of
a forged instrument for forging a notice of appearance relating to
the her appearances in court before Justice Axsmith, for the
purpose of obtaining a driver’s license; and (2) the May 31, 2001,
arrest for Criminal Contempt and Resisting Arrest which stemmed
from her previous arrest for Criminal Contempt on April 18, 2001.
In both complaints plaintiff details her objections to Farmington
Town Court Justices Axsmith and Cooksey having suspended her
driver’s licence for not appearing in court. She also alleges that
the suspension was unlawful and that she made efforts to have her
license reinstated.

One of these efforts led to her arrest for

allegedly forging a notice of appearance and giving it to the

23

Department of Motor Vehicles.

Plaintiff could have, and should

have, raised this issue in the first lawsuit, having filed the suit
within a month of this arrest in August 2001. Accordingly, the
Court finds that this factual event is part of the same claim or
series of claims that were alleged in Axsmith.
Also, in both Complaints, Plaintiff details her arrest for
Criminal Contempt on April 18, 2001 and the events which ensued
afterward, which were connected to the April 2001 arrest.

The

second arrest for Criminal Contempt, as Plaintiff alleges, was
connected to or arose out of the first arrest.

And, as Plaintiff

was aware of each instance she could have, and should have,
asserted

these

factual

allegations

to

support

her

claims

of

unlawful conduct in Axsmith.
The Court also emphasizes the proximity in time between both
events and the April 2001 events which form the crux of the
complaint in Axsmith, and that Plaintiff filed this lawsuit just
months after all of these related events occurred.

It is not

unreasonable, therefore, to require her to have brought all of
these allegations in Axsmith.

The Court finds that these factual

circumstances are related in time, space, origin, and motivation,
they would form a convenient trial unit, and their treatment as a
unit conforms to the parties’ expectations.
barred by res judicata.

24

Therefore, they are

II.

Statute of Limitations

Defendants also argue that most of Plaintiff’s claims are
barred by the statue of limitations, having occurred more than
three years11 before Plaintiff filed this Complaint on May 9, 2003.
This issue was addressed previously by Judge Munson in his decision
partially denying Defendants’ motion to dismiss the Second Amended
Complaint.
2005).

Jackson v. New York State, 381 F.Supp.2d 80 (N.D.N.Y.

“The law of the case doctrine posits that when a court

decides upon a rule of law, that decision should continue to govern
the same issues in subsequent stages in the same case.” DiLaura v.
Power Authority of State of N.Y., 138 P.U.R. 4th 620, 92 F.3d 73,
76 (2d Cir. 1992)(citations omitted).

However, while Courts are

understandably reluctant to revisit issues previously decided,
particularly those decided by other courts or other judges, the
doctrine does not limit the court’s authority to do so. Id. (citing
Virgin Atl. Airways v. National Mediation Bd., 956 F.2d 1245, 1255
(2d Cir.), cert. denied, 506 U.S. 820, 113 S.Ct. 67, 121 L.Ed.2d 34
(1992)). “[T]he major grounds justifying reconsideration are ‘an
intervening change of controlling law, the availability of new
evidence, or the need to correct a clear error or prevent manifest
injustice.’” Id. (quoting Virgin, 956 F.2d at 1255).
Here, the Court finds that it is prudent to revisit the
11

The statute of limitations for claims arising under 42 U.S.C. § 1983 in New York is
three years. See Owens v. Okure, 488 U.S. 235 (1989). Several of Plaintiff’s state law claims are
subject to a one year statute of limitations. N.Y. C.P.L.R § 215.
25

decision of the Northern District of New York on the applicability
of the continuing violation doctrine for several reasons.

First,

Judge Munson’s application of the doctrine to the specific facts
alleged in the complaint is minimal.

Judge Munson spent most of

the discussion of the doctrine determining whether it applied to
cases brought under 42 U.S.C. § 1983, rather than discussing the
facts as alleged.

Further, the Northern District transferred the

case to this Court, in part, because it found that this Court would
be better able to consider the effect of the Axsmith Complaint on
this action.

Having considered the doctrine of res judicata, the

Court now finds it necessary to revisit the issue of whether the
continuing violation doctrine applies to this case, as the analysis
of whether the facts are sufficiently similar to warrant dismissal
for purposes of res judicata must be reconciled with the analysis
of whether the facts, as presented, may constitute a continuing
violation to overcome the statute of limitations.

For these

reasons, the Court finds that justice requires revisiting the
decision of the Northern District of New York with respect to the
continuing violation doctrine.
“Under the continuing violation doctrine, a timely charge with
respect to a constitutional violation in furtherance of an infirm
policy

renders

claims

against

other

unlawful

actions

‘taken

pursuant to that policy timely, even if they would be untimely if
standing

alone.’”

Cotz

v.

Mastroeni,

26

476

F.Supp.2d

332,

356

(S.D.N.Y. 2007)(quoting Conn. Light & Power Co. v. Sec'y of U.S.
Dep't of Labor, 85 F.3d 89, 96 (2d Cir.1996)).

In this Circuit,

the doctrine is disfavored, and allegations of multiple instances
of

unlawful

conduct,

even

if

similar,

do

not,

by themselves

implicate the doctrine. Id. (citing Lambert v. Genesee Hosp., 10
F.3d 46, 52 (2d Cir.1993), cert. denied, 511 U.S. 1052, 114 S.Ct.
1612, 128 L.Ed.2d 339 (1994)).

“A continuing violation exists

where there is a relationship between a series of discriminatory
actions and an invalid, underlying policy.”

Conn. Light & Power

Co., 85 F.3d at 96.
Here,

the

factual

allegations

instances of alleged unlawful conduct.

relate

approximately

13

Not only are the events

remarkably different from one another - occurring at different
times,

under

different

circumstances

and

involving

different

individuals - Plaintiff does not allege a non-conclusory factual
connection between these separate instances of alleged misconduct.
Further,

as

the

Court

has

already

pointed

out,

Plaintiff’s

allegations of a coordinated effort by the NYPS to “terrorize” and
“harass” her, are conclusory, at best.

Other than the allegations

that the arrests, vehicle stops, and prosecutions occurred and were
“unlawful” or “illegal,” there are no allegations of fact that
would seemingly connect any of the alleged events to each other or
to an underlying, and invalid policy of the NYSP. See Harper v.
City of New York, 424 Fed. Appx. 36, 2011 WL 2199973 (2d Cir. 2011)

27

(use

of

conclusory

words

such

as

“cooperation”

or

“pattern”

insufficient to allege an unlawful policy underlying 6 separate
arrests).
In a case remarkably similar to the case at bar, the Southern
District of New York found that the continuing violation doctrine
did not apply to allegations of “varied police activity: (1)
occurring over the course of fifteen years; (2) undertaken by
several different officers; (3) occurring under the supervision of
different town and department administrators; (4) involving vastly
different circumstances; and (5) carried out pursuant to distinct
policies or customs.”
(S.D.N.Y. 2007).

See Cotz v. Mastroeni, 476 F.Supp.2d 332

There, the plaintiff, like the Plaintiff in this

case, alleged various incidents with police officers, including
police

involvement

neighbors,

various

in

domestic

traffic

matters

stops,

a

and
strip

matters

with

search,

her

police

involvement in issues regarding her property upkeep, and unlawful
removal from a polling station.

Because the plaintiff did not

allege a common policy under which all the actions were carried
out, the continuing violation doctrine did not apply.
Plaintiff

has

not

alleged

a

plausible,

Similarly,

non-conclusory

policy

pursuant to which the NYSP acted to violate her constitutional
rights.

Accordingly, the continuing violation doctrine does not

apply to this case.
Thus, Plaintiff is foreclosed from bringing claims related to

28

events that occurred prior to May 9, 2000.

The majority of

Plaintiff’s complaint relates to events that occurred prior to May
9, 2000, and most of the events that occurred subsequently were
raised in the Axsmith case and are now barred by the doctrine of
res judicata.
A review of the Third Amended Complaint reveals only the
following action that is neither time barred nor barred by res
judicata:

On

September

25,

2000,

Plaintiff

was

stopped

by

Defendants Burdette and Klinkman and issued a ticket for driving to
the left of pavement markings.

(Plaintiff’s Exhibit A at C-14.)

While Plaintiff conclusively alleges that the Defendants unlawfully
stopped

her

on

this

occasion,

she

fails

to

allege

any

non-

conclusory facts in support of this allegation. See Ashcroft v.
Iqbal, 556 U.S. 662 (2009)(“the pleading standard Rule 8 announces
does not require ‘detailed factual allegations,’ but it demands
more

than

an

unadorned,

the-defendant-unlawfully-harmed-me

accusation. A pleading that offers ‘labels and conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will not
do.’

Nor

does

a

complaint

suffice

if

it

tenders

‘naked

assertion[s]’ devoid of ‘further factual enhancement.’ (internal
citations omitted).
Other than the fact that the stop occurred and the fact that
Plaintiff

believes

the

stop

was

part

of

a

larger

plot

to

“victimize” her, she does not allege any non-conclusory facts to

29

suggest that the stop was anything other than lawful. People v.
Mestey, 61 A.D.2d 447 (1st Dept. 1978)(citing People v. Ingle, 36
N.Y.2d

413,

369

N.Y.S.2d

67,

330

N.E.2d

39)(explaining

that

probable cause is not required for a routine traffic stop on a
public highway, all that is required is a reasonable suspicion that
the suspect has violated the Vehicle and Traffic law)).

For

instance, Plaintiff does not allege facts that would suggest that
she was obeying the vehicle and traffic laws and that the officers
lacked a reasonable suspicion to stop her; she does not allege what
occurred during the traffic stop that cause her to be “victimized”;
nor does she allege what facts would connect this traffic stop to
any other action of the officers who stopped her or other NYSP
officers that could plausibly suggest that this stop was part of a
plot to harass her. See Jackson v. County of Rockland, No. 10-3968pr,

2011

WL

5868404

(2d

Cir.

November

23,

2011)(dismissing

complaint of pro se litigant who alleged claims of false arrest
pursuant to a conspiracy of various law enforcement agencies where
plaintiff

did not

allege

facts

in

support of

her

conclusory

allegations that and arrest was predicated on falsified evidence
and documents).
There are simply no non-conclusory facts to plausibly suggest
that the stop was unreasonable as that term is understood under the
Fourth Amendment to the United States Constitution. Therefore, the
Court

finds

that

Plaintiff

has

30

not

plausibly

alleged

a

constitutional or state law violation with respect to this stop.

CONCLUSION
Having found that most of Plaintiffs claims are either barred
by res judicata or the statute of limitations; and having found
that Plaintiff failed to plausibly allege a claim to relief based
on the September 25, 2000 stop, the Court hereby grants Defendants’
Motion to Dismiss Plaintiff’s Complaint. Accordingly, this case is
hereby dismissed with prejudice.

ALL OF THE ABOVE IS SO ORDERED.
s/Michael A. Telesca
Michael A. Telesca
United States District Judge
DATED: Rochester, New York
March 6, 2012

31