Jamil v. State of Vermont Judicial Administration et al
Filing
33
OPINION AND ORDER: 2 MOTION to Appoint and Order an Independent Imperial Transparent Grand Jury Investigation, 29 MOTION to Save Protect and Ensure My Children's Life, Safety and Well-Being, 30 MOTION to Identify Two Undisclosed Indi vidual Defendants are denied; 15 MOTION to Dismiss for Failure to State a Claim, 20 MOTION to Dismiss for Failure to State a Claim and/or for More Definite Statement, 22 MOTION to Dismiss for Failure to State a Claim, 24 MOTION to Dismiss for Failure to State a Claim, 26 MOTION to Dismiss for Failure to State a Claim are granted. Plaintiff is granted leave to file an Amended Complaint within 30 days except with respect to the State Defendants. Signed by Judge William K. Sessions III on 2/4/2015. (law)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
TAIFOOR JAMIL,
:
:
Plaintiff,
:
:
v.
:
:
VERMONT ATTORNEY GENERAL’S
:
OFFICE, CHITTENDEN COUNTY
:
STATE’S ATTORNEY’S OFFICE,
:
CHITTENDEN UNIT FOR SPECIAL
:
INVESTIGATIONS, SOUTH
:
BURLINGTON POLICE DEPARTMENT, :
BURLINGTON POLICE DEPARTMENT, :
TWO UNDISCLOSED INDIVIDUALS, :
SOUTH BURLINGTON SCHOOL
:
DISTRICT, AGENCY OF HUMAN
:
SERVICES, VERMONT DEPARTMENT :
OF LABOR, VERMONT HUMAN
:
RIGHTS COMMISSION,
:
:
Defendants.
:
Case No. 2:14-cv-145
OPINION AND ORDER
Plaintiff Taifoor Jamil, proceeding pro se, brings this
action claiming unlawful conduct by various government officials
including law enforcement, prosecutors, and South Burlington
School Department personnel.
The Court previously dismissed two
state defendants from the case.
All remaining defendants, with
the exception of two unidentified individuals, now move to
dismiss the Complaint for failure to state a claim.
For the
reasons set forth below, the motions to dismiss are granted, and
Mr. Jamil is granted leave to amend his Complaint with regard to
selected defendants within 30 days.
Failure to file a timely
Amended Complaint may result in dismissal of the case.
Factual and Procedural Background
In his 54-page complaint, Mr. Jamil claims that the Vermont
state court system, law enforcement, government agencies, school
personnel, and two undisclosed individuals conspired against him
to deprive him custody of his two children.
Specifically, the
Complaint alleges that Mr. Jamil’s wife applied for public
assistance benefits in 2007, and that shortly thereafter Mr.
Jamil was summoned to Vermont Family Court.
On March 20, 2009,
South Burlington police officers allegedly removed Mr. Jamil from
his home in the middle of the night and served with a temporary
relief from abuse order upon this release the following day.
Mr.
Jamil has reportedly been issued “no trespass” notices
restricting him from his children’s school and from the family’s
home.
Id. at 45.
Later in 2009, the Chittenden Family Court, Judge Matthew
Katz presiding, conducted a two-day divorce trial.
Mr. Jamil
alleges that the final order and decree of divorce, ultimately
issued by Judge Patricia Zimmerman, accused him and his family of
criminal acts for which he was never charged or prosecuted.
This
Court takes notice of the fact that on October 21, 2010, the
Vermont Supreme Court affirmed the final order and decree of
divorce issued by the Chittenden Family Court awarding sole
parental rights and responsibilities to the mother of Mr. Jamil’s
two children.
Sultana v. Jamil, 2010 WL 7799813, Nos. 2010-062,
2
2010-212 (Vt. Oct. 21, 2010)(unpublished entry order).
The
Vermont Supreme Court found no abuse of discretion based upon the
lower court’s finding that Mr. Jamil had abused his wife for
twenty years, and affirmed a child support order continuing Mr.
Jamil’s existing obligations.
Id.
Mr. Jamil alleges that the
facts and findings underlying the Chittenden Family Court’s order
were false, were the result of perjury, and constituted
obstruction of justice.
Mr. Jamil brings his claims pursuant to 42 U.S.C. § 1983,
alleging violations of his Fourth, Fifth, Sixth, Eighth, and
Fourteenth Amendment rights.
For relief, he seeks to have the
United States Government “take over the authority of The State of
Vermont Government agencies involved” for ninety-nine years and
award him ninety-nine years’ worth of Defendants’ annual budgets.
Id. at 54.
Mr. Jamil has moved separately for a grand jury
investigation.
ECF No. 2.
Discussion
I.
Motion to Dismiss Standard
Each of the motions to dismiss now before the Court has been
submitted, at least in part, under Rule 12(b)(6) of the Federal
Rules of Civil Procedure.
In deciding a motion to dismiss
pursuant to Rule 12(b)(6), the allegations in the Complaint are
accepted as true, and all reasonable inferences must be drawn in
Mr. Jamil’s favor.
McCarthy v. Dun & Bradstreet Corp., 482 F.3d
3
184, 191 (2d Cir. 2007).
The Court’s function on a motion to
dismiss is “not to weigh the evidence that might be presented at
a trial but merely to determine whether the complaint itself is
legally sufficient.”
Cir. 1985).
Goldman v. Belden, 754 F.2d 1059, 1067 (2d
The Court should not dismiss the Complaint if Mr.
Jamil has stated “enough facts to state a claim to relief that is
plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007).
“A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
While
the Court should construe the factual allegations in the light
most favorable to Mr. Jamil, “the tenet that a court must accept
as true all of the allegations contained in the complaint is
inapplicable to legal conclusions.”
Id.
When presented with a
motion to dismiss pursuant to Rule 12(b)(6), the Court may
consider documents that are referenced in the Complaint,
documents that Mr. Jamil relied on in bringing suit and that are
either in his possession or that the plaintiff knew of when
bringing suit, or matters of which judicial notice may be taken.
See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.
2002).
Because Mr. Jamil is proceeding pro se, the Court must
4
“construe his complaint liberally and interpret it to raise the
strongest arguments that it suggests.”
Chavis v. Chappius, 618
F.3d 162, 170 (2d Cir. 2010) (internal quotation marks omitted)
(alteration omitted).
“Even in a pro se case, . . . ‘threadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.’”
Id. (quoting Harris v.
Mills, 572 F.3d 66, 72 (2d Cir. 2009)).
Thus, although the Court
must “draw the most favorable inferences” that the plaintiff’s
complaint supports, it “cannot invent factual allegations that
[she] has not pled.”
II.
Id.
South Burlington School District’s Motion to Dismiss
The Complaint alleges generally that the defendants in this
case engaged in various conspiracies to deprive him of his
constitutional rights.
With regard to school-related matters
specifically, the Complaint alleges that defendants “forced minor
child out of academic learning, forced to fear a horrified
inhuman submission, drugs, rape.”
ECF No. 4 at 24-25.
Mr. Jamil
also claims that in 2009, at the request of an assistant
principal, South Burlington police issued him a “no trespass”
order restricting him from entering school property.
The South Burlington School District (hereinafter “SBSD”)
first argues that Mr. Jamil’s claims are time barred.
in this case are brought pursuant to 42 U.S.C. § 1983.
The claims
For
purposes of Section 1983 actions, federal courts borrow the state
5
law personal injury statute of limitations period.
See Wilson v.
Garcia, 471 U.S. 261, 276 (1985); Hogan v. Fischer, 738 F.3d 509,
517 (2d Cir. 2013).
is three years.
In Vermont, the relevant limitations period
12 V.S.A. § 512(4).
Thus, unless the
limitations period is tolled for some reason, a plaintiff must
file his section 1983 civil rights action within three years of
the claim’s accrual.
Federal law governs the question of when a
section 1983 claim accrues.
Covington v. City of New York, 171
F.3d 117, 121 (2d Cir. 1999) (citing Morse v. University of
Vermont, 973 F.2d 122, 125 (2d Cir. 1992)).
Generally, under
federal law, a cause of action accrues when “the plaintiff knows
or has reason to know of the injury which is the basis of his
action.”
Id. (quoting Singleton v. City of New York, 632 F.2d
185, 191 (2d Cir. 1980) (internal quotation marks omitted)).
The primary allegations in the Complaint focus on Chittenden
Family Court proceedings that began in 2007 and resulted in an
order by Judge Zimmerman in 2009.
A “no trespass” order was also
allegedly served in 2009 at the request of an SBSD employee.
Under a three-year statute of limitations, Mr. Jamil had until
2012 at the latest to file his claims.
not filed until 2014.
The current Complaint was
Accordingly, and with no response from Mr.
Jamil on the issue of tolling, the Court finds that the
allegations being brought against the SBSD are untimely.
Furthermore, the Complaint fails to allege a plausible claim
6
of SBSD participation in a conspiracy.
To state a cognizable
conspiracy claim under Section 1983, a complaint must allege
sufficient facts to plausibly suggest “(1) an agreement between
two or more state actors or between a state actor and a private
entity; (2) to act in concert to inflict an unconstitutional
injury; and (3) an overt act done in furtherance of that goal
causing damages.”
Pangburn v. Culbertson, 200 F.3d 65, 72 (2d
Cir. 1999); see also Ciambriello v. Cnty. of Nassau, 292 F.3d
307, 324–25 (2d Cir. 2002).
Conclusory, vague or general
allegations of a conspiracy to deprive a person of constitutional
rights are not sufficient to support a cognizable claim under
section 1983.
Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir. 1983).
Here, Mr. Jamil’s claims fall short of alleging any sort of
agreement by employees of SBSD to engage in an unlawful
conspiracy.
The most specific allegations with regard to
educational actors is that a child was “forced . . . out of
academic learning,” but the identities of the people responsible
for that event have not been pled.
Mr. Jamil also alleges
communications between South Burlington police and an assistant
principal, but those communications were merely informative and
do not appear to have been part of a conspiracy to inflict
unconstitutional injury.
The Court therefore finds that Mr. Jamil’s Complaint fails
to allege a plausible constitutional claim against the SBSD
7
insofar as his claims are untimely and insufficient.
Because the
SBSD’s arguments on these points fully support its motion to
dismiss, the Court need not address its additional arguments with
regard to municipal liability and qualified immunity.
The Court
also finds, however, that an amended pleading might bring both
clarity and plausibility to those claims.
See Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (holding that a court
generally “should not dismiss without granting leave to amend at
least once when a liberal reading of the complaint gives any
indication that a valid claim might be stated”) (internal
quotation and citation omitted).
Specifically, Mr. Jamil may
provide greater detail about the relevant dates and the people
involved in any alleged wrongdoing.
Accordingly, SBSD’s motion
to dismiss is granted, and as set forth below, Mr. Jamil may
amend his Complaint to clarify his claims against the SBSD.
III. City of Burlington’s Motion to Dismiss
The City of Burlington, on behalf of the Burlington Police
Department,1 has moved to dismiss for failure to state a claim
because Mr. Jamil does not make any reference to the police
department itself in the body of the Complaint.
instead refers to law enforcement generally.
1
The Complaint
With multiple law
This Court has previously determined that the Burlington Police
Department is not an entity that may be sued, and that a plaintiff
should instead bring claims against the City itself. See Gorton v.
Burlington Police Dep’t, 23 F. Supp. 2d 454, 456 (D. Vt. 1998); Hee v.
Everlof, 812 F. Supp. 1350, 1351 (D. Vt. 1993).
8
enforcement defendants named in the case caption it is not clear
which allegations, if any, are brought against the Burlington
Police Department.
Where a plaintiff fails to mention a named defendant in the
body of the complaint, dismissal is appropriate.
See, e.g.,
Carrasquillo v. City of New York, 324 F. Supp. 2d 428, 435
(S.D.N.Y. 2004) (dismissing pro se complaint against individual
defendants not mentioned in body of complaint).
Nonetheless,
because Mr. Jamil does allege various unlawful acts by law
enforcement generally, he may amend his claims to specify whether
any members of the Burlington Police Department were involved.
See Cuoco, 222 F.3d at 112.
Leave to amend is therefore granted
as set forth below.
IV.
South Burlington Police Department’s Motion to Dismiss
The SBPD moves to dismiss Mr. Jamil’s claims, arguing: (1)
the Complaint is time barred, (2) the SBPS is not an entity that
may be sued, and (3) the Complaint fails to set forth any basis
for municipal liability.
Unlike the claims against the
Burlington Police Department, the SBPD is specifically referenced
within the body of the Complaint.
Mr. Jamil first references two SBPD case numbers in a list
of “Action(s), called into question[] to The Court of Law.”
No. 4 at 16.
With respect to the first case number, he was
allegedly “[f]ramed . . . with Criminal charges based on
9
ECF
conspiracy, false, fabricated & manufactured self-imposed FACTS.”
Id. at 38.
He claims that this first case was dropped by
prosecutors in October 2006.
The second SBPD case number refers
to “Trespass Order, Home & school,” and appears to be related to
the allegation that in April 2009 an “officer relegated [Mr.
Jamil] to Second Class Human” and “issued a trespass order
restricting [him] from going to [his] home.”
Id. at 43-44.
The Complaint also alleges that on March 20, 2009, the South
Burlington Police forcefully removed Mr. Jamil from his home and
detained him.
He claims that he was not charged “but was handed
a Temporary Order for Relief From Abuse” and released that same
day.
Id. at 43.
In April 2009, Judge Linda Levitt reportedly
denied the request for a relief from abuse order.
Immediately
thereafter, Mr. Jamil traveled to his daughter’s school, where
SBPD officers allegedly informed the Assistant Principal that the
school could obtain a trespass order.
On April 15, 2009, the
SBPD issued Mr. Jamil the “no trespass” order.
As discussed previously, Mr. Jamil’s claims are brought
pursuant to 42 U.S.C. § 1983, to which this Court applies a
three-year statute of limitations.
The alleged events involving
the SBPD appear to have occurred between 2006 and 2009.
As the
Complaint was not filed until 2014, and absent any apparent
grounds for tolling, the claims brought against the SBPD are
time-barred.
10
With regard to whether the SBPD may be sued, this Court has
held that the proper party is not the police department, but
rather the town itself.
F. Supp. at 1351.
See Gorton, 23 F. Supp. 2d at 456; Hee, 812
Given that general proposition, the SBPD next
argues that Mr. Jamil’s claims do not allege sufficient facts to
support a plausible claim for municipal liability.
A
municipality or municipal entity, such as the City of South
Burlington, cannot be held liable under Section 1983 on a
respondeat superior theory.
See Monell v. Dep’t of Social Svcs.
of City of New York, 436 U.S. 658, 691 (1978); Roe v. City of
Waterbury, 542 F.3d 31, 36 (2d Cir. 2008).
To prevail on a
Section 1983 claim against a municipality, a plaintiff must show
“that action pursuant to official municipal policy caused the
alleged constitutional injury.”
Cash v. Cnty. of Erie, 654 F.3d
324, 333 (2d Cir. 2011) (internal quotation marks and citation
omitted); see also Monell, 436 U.S. at 690–91.
To establish the existence of a municipal policy or custom,
the plaintiff must allege: (1) the existence of a formal policy
which is officially endorsed by the municipality, see Connick v.
Thompson, 131 S. Ct. 1350, 1359 (2011); (2) actions taken or
decisions made by municipal policymaking officials which caused
the alleged violation of plaintiff’s civil rights, see Amnesty
America v. Town of West Hartford, 361 F.3d 113, 126 (2d Cir.
2004); Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir. 2000); (3) a
11
practice “so persistent and widespread as to practically have the
force of law,” Connick, 131 S. Ct. at 1359; see also Green v.
City of New York, 465 F.3d 65, 80 (2d Cir. 2006), or that “was so
manifest as to imply the constructive acquiescence of senior
policy-making officials,” Patterson v. Cnty. of Oneida, N.Y., 375
F.3d 206, 226 (2d Cir. 2004) (quotations and citations omitted);
or (4) that “a policymaking official exhibit[ed] deliberate
indifference to constitutional deprivations caused by
subordinates.” Cash, 654 F.3d at 334 (quotations and citations
omitted); see also Okin v. Village of Cornwall–On–Hudson Police
Dep’t, 577 F.3d 415, 439 (2d Cir. 2009).
Here, even giving the Complaint the required liberal
reading, the Court finds no allegations sufficient to state a
Section 1983 cause of action against the City of South
Burlington.
Specifically, there is no mention of a municipal
custom or policy and no reference whatsoever to policymaking
officials.
Absent any such allegations, the Complaint fails to
state a plausible claim for relief, and the SBSD’s motion to
dismiss is granted.
However, because an amended pleading might
rectify these shortcomings, and as the Second Circuit strongly
encourages granting leave to amend for pro se plaintiffs, see
Cuoco, 222 F.3d at 112, the Court will again permit the filing of
a timely-filed Amended Complaint as set forth below.
V.
Chittenden Unit for Special Investigations Motion to Dismiss
12
Defendant Chittenden Unit for Special Investigations
(hereinafter “CUSI”) moves to dismiss the Complaint as vague and
conclusory.
The Complaint sets forth two factual allegations
against the CUSI.
In the first, Mr. Jamil claims that the CUSI,
together with the Vermont Department of Children and Families,
“OCS & Court of Law continued to Deceive the law in closed door
Conspiracy regarding child custody, parental rights and
responsibility.”
ECF No. 4 at 10.
The Complaint next makes
reference to documents indicating different addresses for members
of Mr. Jamil’s family, when in fact his family was living
together at the time.
The only other factual allegation against
CUSI is that, together with state agencies and the Vermont
judiciary, “[e]nslaved Me, my children and Mom through forceful
imposed Injustice.”
Id. at 12.
Other references to CUSI merely
name it as a party and as the subject of constitutional claims.
Id. at 2, 4, 18.
The Court agrees that these allegations against CUSI fail to
state a plausible claim of either a conspiracy or constitutional
violations.
A complaint “containing only conclusory, vague, or
general allegations of a conspiracy to deprive a person of
constitutional rights cannot withstand a motion to dismiss.”
Gallop v. Cheney, 642 F.3d 364, 369 (2d Cir. 2011) (internal
quotation marks omitted).
The claims currently being brought
against CUSI are both conclusory and vague, asserting only in the
13
most general terms an effort to provide false information.
Without more specific allegations with respect to CUSI’s role,
the Complaint fails to plead “enough facts to state a claim to
relief that is plausible on its face.”
Twombly, 550 U.S. at 570.
The motion to dismiss is therefore granted, again with leave to
amend.
VI.
State Defendants’ Motion to Dismiss
The motion to dismiss before the Court is that of state
defendants the Vermont Attorney General’s Office, the Office of
the Chittenden County State’s Attorney, the Vermont Agency of
Human Services, the Vermont Department of Labor, and the Vermont
Human Rights Commission (collectively “State Defendants”).2
The
State Defendants assert several grounds for dismissal, including
immunity under the Eleventh Amendment.
The Eleventh Amendment states: “[t]he judicial power of the
United States shall not be construed to extend to any suit in law
or equity, commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or Subjects
of any Foreign State.”
U.S. Const. amend. XI.
The Supreme Court
has interpreted this provision to bar suits against state
2
Though not listed in the case caption, certain state
officials, including Attorney General William Sorrell and Chittenden
County State’s Attorney T.J. Donovan, are listed thereafter as
parties. The Complaint does not assert any specific allegations with
respect to those officials, they have not been served with process,
and the State Defendants’ motion to dismiss does not address, or apply
to, those officials.
14
governments by a state’s own citizens as well as by citizens of
another state.
See Hans v. Louisiana, 134 U.S. 1, 15 (1890).
Unless a state consents to suit or provides an express or
statutory waiver of immunity, the Eleventh Amendment bars suits
in federal court against state governments.
Woods v. Rondout
Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir.
2006) (citing Regents of the Univ. of Cal. v. Doe, 519 U.S. 425,
429 (1997)).
These principles apply equally to state agencies.
Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506
U.S. 139, 144 (1993).
A waiver of Eleventh Amendment immunity by a state must be
unequivocally expressed.
See Pennhurst State School & Hosp. v.
Halderman, 465 U.S. 89, 99 (1984).
The State of Vermont has not
consented to be sued, and has instead expressly retained its
Eleventh Amendment immunity.
See 12 V.S.A. § 5601(g) (“Nothing
in this chapter waives the rights of the state under the Eleventh
Amendment of the United States Constitution.”).
Congress has not abrogated Vermont’s immunity.
Moreover,
See Quern v.
Jordan, 440 U.S. 332, 342 (1979) (holding 42 U.S.C. § 1983 does
not abrogate states’ Eleventh Amendment immunity).
Accordingly,
the Vermont offices and agencies named as State Defendants are
entitled to immunity from suit in federal court.
A narrow exception to Eleventh Amendment immunity allows a
federal court to issue an injunction against a state official in
15
his or her official capacity who is acting contrary to federal
law.
See Ex Parte Young, 209 U.S. 123 (1908); New York Health
and Hospitals Corp. et al. v. Perales, 50 F.3d 129 (2d Cir.
1995).
Mr. Jamil has not asked for any such relief from or with
respect to specific state officials, and instead requests that
the federal government take over the authority of state agencies.
The State Defendants’ motion to dismiss is therefore granted.
Because the Eleventh Amendment bar cannot be overcome in
federal court, the Court declines to grant leave to amend with
respect to these defendants, and the allegations against them are
dismissed without prejudice.
VII. Mr. Jamil’s Pending Motions
A.
Motion to Appoint a Grand Jury
Mr. Jamil has three motions now pending before the Court.
The first (ECF No. 2) requests appointment of a grand jury and a
resulting investigation.
With regard to initiating any sort of
criminal action or investigation, “it is well-settled that a
private citizen does not have a constitutional right to bring a
criminal complaint against another individual.”
Price v. Hasly,
2004 WL 1305744, at *1 (W.D.N.Y. June 8, 2004) (citing Leeke v.
Timmerman, 454 U.S. 83 (1981); Linda R.S. v. Richard D., 410 U.S.
614 (1973)); see also Rzayeva v. United States, 492 F. Supp. 2d
60, 87 (D. Conn. 1975) (commencement of a federal criminal case
by submission of evidence to a grand jury is “an executive
16
function within the exclusive prerogative of the Attorney
General”).
Mr. Jamil’s motion for appointment of a grand jury is
therefore denied.
B.
Motion for Preliminary Injunctive Relief
Mr. Jamil’s next motion (ECF No. 29) asks for a series of
Court orders purportedly to protect his children’s lives.
Those
orders would include: restricting public disclosure of the
identity or physical location of his children and their mother;
ordering South Burlington High School to submit academic reports
dating back to 2010; ordering the “appropriate authority to
protect and ensure safety and peace and well-being of” his
children and their mother; and ordering the reunions of his
mother and children.
ECF No. 29.
Construing this motion as one
for preliminary injunctive relief, Mr. Jamil has the burden of
showing irreparable harm and either a substantial likelihood of
success on the merits of his claims, or sufficiently serious
questions going to the merits and a balance of hardships tipping
decidedly in his favor.
Citigroup Global Mkts., Inc. v. VCG
Special Opportunities Master Fund Ltd., 598 F.3d 30, 35, 38 (2d
Cir. 2010).
When, as in this case, the moving party seeks a
“mandatory injunction that alters the status quo by commanding a
positive act,” the burden is even higher, requiring a “clear
showing that the moving party is entitled to the relief
requested” or that “very serious damage will result from a denial
17
of preliminary relief.”
Id. at 35 n.4 (internal quotations and
citations omitted).
As explained above, Mr. Jamil’s allegations are highly
conclusory and lack sufficient plausibility to proceed.
His
claims in support of a preliminary injunction are similarly
conclusory, as he offers few facts to support findings of either
a likelihood of success or likely harm.
See Ivy Mar Co. v. C.R.
Seasons Ltd., 907 F. Supp. 547, 561 (E.D.N.Y. 1995) (“[B]are
allegations, without more, are insufficient for the issuance of a
preliminary injunction.”).
Because Mr. Jamil has failed to carry
his burden for preliminary injunctive relief, his motion for
protection is denied.
Mr. Jamil’s third motion before the Court (ECF No. 30)
provides the names of the undisclosed individual defendants and
asks that they be entered on the docket.
Because the Court does
not add parties to the docket absent the filing of an amended
pleading, this motion is denied.
That said, Mr. Jamil may wish
to add these individuals as defendants in an Amended Complaint.
VIII. Leave to Amend
The Second Circuit has cautioned that district courts should
not dismiss pro se complaints 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.’”
Chavis v.
Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (quoting Branum v.
18
Clark, 927 F.2d 698, 705 (2d Cir. 1991)); see also Fed. R. Civ.
P. 15(a)(2) (“The court should freely give leave [to amend] when
justice so requires.”).
Nonetheless, leave to amend may be
denied in certain circumstances, including futility or “repeated
failure to cure deficiencies by amendments previously allowed.”
Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008)
(internal quotation marks omitted).
Here, Mr. Jamil has not yet filed an Amended Complaint, and
given his current allegations, may have plausible claims.
The
Court will therefore allow him to amend his current Complaint
with respect all named defendants with the exception of the State
Defendants.
Amended claims against the State Defendants, each of
which is some form of state agency, would be futile because
immunity under the Eleventh Amendment would again apply.
Any amended filing should be entitled “Amended Complaint”
and should contain all claims against all remaining parties as it
will supersede the original Complaint in all respects.
The
Amended Complaint, if any, shall be filed within 30 days of this
Opinion and Order.
Failure to timely amend may result in
dismissal of all claims with prejudice.
Conclusion
For the reasons set forth above, Mr. Jamil’s motion to
appoint and order a grand jury investigation (ECF No. 2),
expedited motion to save and protect and ensure his children’s
19
lives (ECF No. 29), and motion to identify two undisclosed
individual defendants (ECF No. 30) are denied.
Defendants’
motions to dismiss (ECF Nos. 15, 20, 22, 24, 26) are granted.
Mr. Jamil is granted leave to file an Amended Complaint within 30
days except with respect to the State Defendants, who have been
dismissed from the case without prejudice and for whom any
amended pleading would be futile.
Dated at Burlington, in the District of Vermont, this 4th
day of February, 2015.
/s/ William K. Sessions III
William K. Sessions III
District Court Judge
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