Dudley v. Hochul et al | N.D. New York | 05-01-2024

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _____________________________________________ ELLIS DAVON DUDLEY, II, P l a i n t i f f , v. 5:24-CV-0048 (DNH/ML) GOVERNOR KATHY HOCHUL, of New York; NEW YORK STATE; DR. JAMES V. MCDONALD; RANDAL B. CALDWELL; MEGAN JOHNSON; CHRISTINA F. DEJOSEPH; SANDRA MILNER; JEFFREY A. DOMACHOWSKI; KAREN STANISLAUS; ARLENE BRADSHAW; JULIE A. CECILE; ONONDAGA COUNTY SHERIFF; PATRICIA L. DERUE; SUE OTTAVIANO; JULIE A. CERIO; KATIE BOYEA; DAVID M. PRIMO; MARTHA E. MULROY; MICHELLE PIRRO BAILY; UNKOWN; HISco*ck LEGAL AID; and DEP’T OF HEALTH AND SOC. SERVS., Defendants. _____________________________________________ A P P E A R A N C E S : O F C O U N S E L : ELLIS DAVON DUDLEY, II Plaintiff, Pro Se Post Office Box 7124 Syracuse, New York 13261 MIROSLAV LOVRIC, United States Magistrate Judge

ORDER and REPORT-RECOMMENDATION The Clerk has sent this pro se Complaint (Dkt. No. 1) together with an application to proceed in forma pauperis (“IFP”) (Dkt. No. 2) and a motion for permission to file electronically in ECF (Dkt. No. 3) filed by Ellis Davon Dudley, II (“Plaintiff”) to the Cour t for review. For the reasons discussed below, I (1) grant Plaintiff’s IFP application (Dkt. No. 2), (2) recommend that

2 Plaintiff’s Complaint (Dkt. No. 1) be dismissed in its entirety without leave to amend, and (3) deny without prejudice Plaintiff’s motion for permission to file electronically (Dkt. No. 3). I. BACKGROUND

Liberally construed, 1

Plaintiff’s Complaint asserts that his rights were violated by Defendants Governor Kathy Hochul, New York State, Dr. James V. McDonald, Randal B. Caldwell, Megan Johnson, Christina F. Dejoseph, Sandra Milner, Jeffrey A. Domachowski, Karen Stanislaus, Arlene Bradshaw, Julie A. Cecile, Onondaga County Sheriff, Patricia L. DeRue, Sue Ottaviano, Julie A. Cerio, Katie Boyea, David M. Primo, Martha E. Mulroy, Michelle Pirro Baily, Unknown, Hisco*ck Legal Aid, and Department of Health and Social Service (collectively “Defendants”), who were all involved in Plaintiff’s state court family proceedings. (See generally Dkt. No. 1.)

The Complaint is difficult to decipher (id.), but alleges that Plaintiff has two minor children, whom Plaintiff refers to as “blue child” and “pink child” throughout the Complaint. (Dkt. No. 1 at 2.) The Complaint provides a timeline of Plaintiff’s experiences with the New York State Family Court system dating back to July 9, 2019. (Id.) The crux of Plaintiff’s grievance appears to be that (1) the court-ordered child support is excessive, (2) Plaintiff and his family have somehow “lost” their nationality be cause of the family court proceedings, and (3) Plaintiff’s wages were garnished to pay his cour t-ordered child support and he did not consent to the seizure of his property. (See generally Dkt. No. 1.)

The Complaint appears to assert the following nine causes of action: (1) a claim of racketeering, (2) a claim that Plaintiff’s rights pursuant to the First Amendment and 42 U.S.C. §

1 The court must interpret pro se complaints to raise the strongest arguments they suggest. Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).

3 1983 were violated; (3) a claim that Plaintiff’s rights pursuant to the Second Amendment and 42 U.S.C. § 1983 were violated; (4) a claim that Plaintiff’s rights pursuant to the Fourth Amendment and 42 U.S.C. § 1983 were violated; (5) a claim that Plaintiff’s rights pursuant to the Fifth Amendment and 42 U.S.C. § 1983 were violated; (6) a claim that Plaintiff’s rights pursuant to the Sixth Amendment and 42 U.S.C. § 1983 were violated; (7) a claim that Plaintiff’s rights pursuant to the Eighth Amendment and 42 U.S.C. § 1983 were violated; (8) a claim that Plaintiff’s rights pursuant to the Thirteenth Amendment and 42 U.S.C. § 1983 were violated; and (9) a claim that Plaintiff’s rights pursuant to the Fourteenth Amendment and 42 U.S.C. § 1983 were violated. (Dkt. No. 1 at 6.) As relief, Plaintiff seeks damages in the “amount of 20 million dollars or a full disclosure of all contract terms for a consideration to acceptance at the agreement of terms of competition. As well [as] an immediate stop to the organization tasks with damaging and seizure [of Plaintiff’s] property.” ( Id.)

Plaintiff also filed an application to proceed IFP. (Dkt. No. 2.) II. PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS

When a civil action is commenced in a federal district court, the statutory filing fee, currently set at $405, must ordinarily be paid. 28 U.S.C. § 1914(a). A court is authorized, however, to permit a litigant to proceed IFP status if a party “is unable to pay” the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1). 2

After reviewing Plaintiff’s IFP application

2 The language of that section is ambiguous because it suggests an intent to limit availability of IFP status to prison inmates. See 28 U.S.C. § 1915(a)(1) (authorizing the commencement of an action without prepayment of fees “by a person who submits an affidavit that includes a statement of all assets such prisoner possesses”). The courts have construed that section, however, as making IFP status available to any litigant who can meet the governing financial criteria. Hayes v. United States, 71 Fed. Cl. 366, 367 (Fed. Cl. 2006); Fridman v. City of N.Y., 195 F. Supp. 2d 534, 536 n.1 (S.D.N.Y. 2002).

4 (Dkt. No. 2), the Court finds that Plaintiff meets this standard. Therefore, Plaintiff’s application to proceed IFP is granted. 3

(Id.) III. LEGAL STANDARD FOR INITIAL REVIEW OF COMPLAINT

“Notwithstanding any filing fee, or any porti on thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2).

In determining whether an action is frivolous, the court must consider whether the complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Dismissal of frivolous actions is appropriate to prevent abuses of court process as well as to discourage the waste of judicial resources. Neitzke, 490 U.S. at 327; Harkins v. Eldridge, 505 F.2d 802, 804 (8th Cir. 1974); see Fitzgerald v. First East Seventh Street Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000) (a district court “may dismiss a frivolous complaint sua sponte even when the plaintiff has paid the required filing fee[.]”); see also Pflaum v. Town of Stuyvesant, Columbia Cnty., N.Y., 11-CV-0335, 2016 WL 865296, at *1, n.2 (N.D.N.Y. Mar. 2, 2016) (Suddaby, C.J.) (finding that the Court had the power to address and dismiss additional theories of the plaintiff’s retaliation claim sua sponte because those theories were so lacking in arguable merit as to be frivolous). In order to state a claim upon which relief can be granted, a complaint must contain, inter alia, “a short and plain statement of the claim showi ng that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The requirement that a plaintiff “show” that he or she is entitled to relief

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

5 means that a complaint “must cont ain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 [2007]). “Determining whether a complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged–but it has not shown–that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (internal citation and punctuation omitted). “In reviewing a complaint . . . the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff’s favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); see also Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam) (reading the plaintiff’s pro se complaint “broadly, as we must” and holding that the complaint sufficiently raised a cognizable claim). “[E]xt reme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and [the] parties . . . have had an opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983). IV. ANALYSIS

In addressing the sufficiency of a plaintiff’s complaint, the court must construe his pleadings liberally. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008).

6 Having reviewed Plaintiff’s Complaint with this principle in mind, I recommend that all causes of action be dismissed.

A. Claims Alleging “Racketeering” To the extent that the Complaint is construed as alleging a claim pursuant to 18 U.S.C. § 1691 et seq., (“RICO”) I reco mmend that it be dismissed. 4

It is “unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affair s through a pattern of racketeering activity.” 18 U.S.C. § 1962(c). Section 1964 estab lishes a private right of action for individuals who are harmed by racketeering activity. 18 U.S.C. § 1964. This private right of action permits a plaintiff to bring a RICO claim for sustaining injuries “in his business or property by reason of a violation of section 1962.” 18 U.S.C. § 1964(c) . Generally, a plaintiff bringing a civil RICO claim under “Section 1962(c) must allege that (1) the defendant has violated the substantive RICO statute, and (2) the plaintiff was injured in his business or property ‘by reason of a violation of section 1962.’” Malvar Egerique v. Chowaiki, 19-CV-3110, 2020 WL 1974228, at *7 (S.D.N.Y. Apr. 24, 2020) (quoting Moss v. Morgan Stanley, Inc., 719 F.2d 5, 17 (2d Cir. 1983) (citing 18 U.S.C. § 1962(c))), vacated in part on other grounds by Weiss v. David Benrimon Fine Art LLC, 20-CV-3842, 2021 WL 6128437 (2d Cir. Dec. 28, 2021) (summary order). More specifically, to assert a civil RICO claim under Section 1962(c), a plaintiff must

4 Under General Order #14 and N.D.N.Y. L.R. 9.2, a party who files a RICO claim must also file a Civil RICO statement within thirty days after the filing date of the Complaint. Despite thirty days having elapsed since the filing of his Complaint, Plaintiff has failed to file a Civil RICO statement. (See generally docket sheet.) As a result, I recommend that, in the alternative, Plaintiff’s RICO claim be dismissed. See Poole v. Bendixen, 20-CV-0697, 2021 WL 3737780, *12 (N.D.N.Y. Aug. 24, 2021) (Suddaby, C.J.); Murphy v. Onondaga Cnty., 18-CV-1218, 2022 WL 819281, *6 (N.D.N.Y. Mar. 18, 2022) (Sharpe, J.).

7 allege the following elements: “( 1) conduct, (2) of an enterprise, (3) through a pattern, (4) of racketeering activity.” Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 (1985). Additionally, a plaintiff asserting a civil RICO claim must plead facts plausibly suggesting a resulting “domestic injury” to their business or property. RJR Nabisco, Inc. v. European Community, 136 S. Ct. 2090, 2111 (2016).

The Complaint fails to allege facts plausibly suggesting the existence of an “enterprise” within the meaning of RICO. More specifically, Plaintiff fails to allege facts plausibly suggesting that Defendants constitute, control, or participate in any enterprise with a distinguishable existence or purpose. See Mackin v. Auberger, 59 F. Supp. 3d 528, 543 (W.D.N.Y. 2014) (“Plaintiff fails to allege that [the defendants] had a common or shared purpose or that they functioned as a continuing unit.”). In addition, the Co mplaint fails to allege any facts plausibly suggesting that Defendants functioned as a continuing unit. “Without such an enterprise, a RICO claim like [Plaintiff]’s must fail.” Liang v. City of New York, 10-CV-3089, 2013 WL 5366394, at *13 (E.D.N.Y. Sept. 24, 2013); see also Peterson v. City of New York, 11- CV-3141, 2012 WL 75029, at *3-4 (S.D.N.Y. Jan. 9, 2012) (dismissing the plaintiff’s RICO claim because “[t]he existence of a RICO enterpri se is a necessary element for liability” and the plaintiff failed to allege facts plausibly suggesting the existence of a RICO enterprise).

Moreover, the Complaint fails to allege facts plausibly suggesting a pattern of racketeering activity. 18 U.S.C. § 1961(5) (To sufficiently allege a “pattern of racketeering activity,” a plaintiff must allege at least two acts of “racketeeri ng activity” that occur within ten years of each other); Westester Cnty. Indep. Party v. Astorino, 137 F. Supp. 3d 586, 608 (S.D.N.Y. 2015) (emphasis in original) (quoting Cofacredit, S.A. v. Windsor Plumbing Supply Co., 187 F.3d 229, 242 (2d Cir 1999)) (To qualify as a “pattern” of rack eteering activity, the

8 predicate acts “must be from the crimes listed in [Section] 1961(1) and they must be ‘related, and . . . amount to or pose a threat of continued criminal activity.’”). The Complaint fails to allege any acts of racketeering activity and instead merely uses the word “racketeering” in a conclusory fashion without facts plausibly suggesting the commission of any predicate acts. (See generally Dkt. No. 1.)

For each of these alternative reasons, I recommend that Plaintiff’s RICO claim be dismissed.

B. Claims Pursuant to 42 U.S.C. § 1983 After carefully considering Plaintiff’s claims pursuant to 42 U.S.C. § 1983, I recommend that they be dismissed for three reasons.

First, to the extent that there are final state court orders or judgments that Plaintiff asks this Court to overturn, those claims are barred by the Rooker-Feldman doctrine. Porter v. Nasci, 24-CV-0033, 2024 WL 1142144, at *4 (N.D.N.Y. Mar. 15, 2024) (Dancks, M.J.) (citing Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 291-92 (2005); Dorce v. City of New York, 2 F.4th 82, 101 (2d Cir. 2021)) (“Under the Rooker-Feldman doctrine, a federal district court lacks authority to review a final state court order or judgment where a litigant seeks relief that invites the federal district court to reject or overturn such a final state court order or judgment.”). “This includes when a litigant seeks relief that invites a federal district court to reject or overturn a final decision of a New York Family Court as to a child support dispute brought in that state court.” Porter, 2024 WL 1142144, at *4 (citing Sims v. Kaufman, 23-CV- 7927, 2024 WL 757338, at *4 (S.D.N.Y. Feb. 14, 2024)) (additional citation omitted); see also Fernandez v. Turetsky, 14-CV-4568, 2014 WL 5823116, at *4 (E.D.N.Y. Nov. 7, 2014) (collecting cases in support of the proposition that “[c]ourts have repeatedly invoked the

9 [Rooker-Feldman] doctrine in cases . . . in which plaintiffs challenge family court decrees setting child support arrears.”), aff'd, 645 F. App'x 103 (2d Cir. 2016). Therefore, to the extent Plaintiff seeks to challenge a final judgment of Onondaga County Family Court or the Oneida County Family Court, any such claim is barred by the Rooker-Feldman doctrine. See, e.g., Phillips v. Wagner, 22-CV-0833, 2022 WL 17406092, at *3 (N.D.N.Y. Nov. 4, 2022) (Lovric, M.J.) (“Plaintiff's claims, while not enti rely clear, seem to challenge an order . . . in which the Family Court determined that he owes child support . . . . Plaintiff's claims for relief are barred by the Rooker-Feldman doctrine . . . .”) (citation omitted), report and recommendation adopted, 2022 WL 17403441 (N.D.N.Y. Dec. 2, 2022) (Hurd, J.), appeal dismissed, No. 23-68, 2023 WL 4445323 (2d Cir. Apr. 25, 2023).

Alternatively, “in the event the underlying family court proceedings are pending, such claims are likely barred by the Younger abstention doctrine.” Walker v. O'Connor, 22-CV-0581, 2022 WL 2341420, at *6 (N.D.N.Y. June 29, 2022) (Dancks, M.J.) (citing Younger v. Harris, 401 U.S. 37 (1971); Amato v. McGinty, 21-CV-0860, 2022 WL 226798, at *11 (N.D.N.Y. Jan. 26, 2022) (Dancks, M.J.)), report and recommendation adopted, 2022 WL 2805462 (N.D.N.Y. July 18, 2022) (Hurd, J.). “ Younger generally requires federal courts to abstain from taking jurisdiction over federal constitutional claims that involve or call into question ongoing state proceedings.” Diamond “D” Const. Corp. v. McGowan , 282 F.3d 191, 198 (2d Cir. 2002) (citing Younger, 401 U.S. at 43-44). “ Younger abstention is required when three conditions are met: (1) there is an ongoing state proceeding; (2) an important state interest is implicated in that proceeding; and (3) the state proceeding affords the federal plaintiff an adequate opportunity for judicial review of the federal constitutional claims.” Diamond “D” Const. Corp. , 282 F.3d at 198 (citing Grieve v. Tamerin, 269 F.3d 149, 152 (2d Cir. 2001)). Courts in this circuit have

10 found these conditions to be satisfied in matters involving child support issues. See, e.g., Cogswell v. Rodriguez, 304 F. Supp. 2d 350, 357 (E.D.N.Y. 2004) (applying the Younger abstention doctrine to dismiss claims which arose from “pending state court proceedings involving child support.”) (citation omitted); Tomczyk v. New York Unified Ct. Sys., 19-CV- 2753, 2019 WL 2437849, at *3 (E.D.N.Y. June 10, 2019) (citing Sprint Communications, Inc. v. Jacobs, 571 U.S. 69, 72-73 (2013) (“[T]his Court abstains under Younger from interfering in Plaintiff's ongoing state-court proceedings, involving divorce and child support issues and ‘implicat[ing] a State's interest in enforcing th e orders and judgments of its courts.’”)). “Accordingly, to the extent that the child suppo rt issues are continuing in Family Court, the Court should abstain from interfering with that process.” Bowman v. Morris, 19-CV-0097, 2019 WL 5150196, at *6 (N.D.N.Y. Apr. 10, 2019) (Stewart, M.J.) (citations omitted), report and recommendation adopted, 2019 WL 3759174 (N.D.N.Y. Aug. 9, 2019) (Sannes, J.).

Second, Plaintiff’s claims are likely barred pu rsuant to the domestic relations exception to the jurisdiction of federal courts. Dudley v. Montaque, 24-CV-0223, 2024 WL 1464346, at *4 (N.D.N.Y. Apr. 4, 2024) (Dancks, M.J.) (citing Marshall v. Marshall, 547 U.S. 293, 308 (2006); Oliver v. Punter, 22-CV-3580, 2022 WL 3228272, at *3 (E.D.N.Y. Aug. 10, 2022) (“The domestic relations exception to federal jurisdiction divests the federal courts of power to issue divorce alimony and child custody decrees . . . . This exception also extends to child support determinations and the enforcement thereof.”) (internal quotat ions and citations omitted)) (“under the domestic relations exception to the ju risdiction of federal courts, cases involving divorce, alimony, and child custody remain outside this Court’s juri sdiction.”). Accordingly, this Court lacks jurisdiction to adjudicate a claim involving issues of child custody and support. See Rotondo v. New York, 17-CV-1065, 2017 WL 5201738, at *4 (N.D.N.Y. Oct. 31, 2017) (Peebles,

11 M.J.) (“[I]t is manifestly clear that plaintiff's claims implicate the domestic-relations exception to federal court jurisdiction. Plaintiff challenges a state-court's determination denying him relief from a family court's child support order, and plaintiff's requests for relief include removal of the family court proceeding to federal court.”), report and recommendation adopted, 2017 WL 5198194 (N.D.N.Y. Nov. 9, 2017) (Sharpe, J.); Cruz v. New York, 17-CV-0510, 2017 WL 6021838, at *7 (N.D.N.Y. Oct. 27, 2017) (Dancks, M.J.), report and recommendation adopted, 2017 WL 6001833 (N.D.N.Y. Dec. 4, 2017) (Sannes, J.) (collecting cases in support of the proposition that “[c]laims involvi ng child custody, support, and visitation brought in federal district court in this Circuit have regularly been dismissed for lack of subject matter jurisdiction based on the domestic relations exception to federal jurisdiction.”).

Third, the claims against Defendants are not cognizable.

1. Claims Against Defendant Hochul Sovereign immunity bars Plaintiff’s claims for damages agai nst Defendant Hochul in her official capacity. Sovereign immunity extends to “actions for the recovery of money from the state” against “state agents.” Leitner v. Westchester Cmty. Coll., 779 F.3d 130, 134 (2d Cir. 2015) (citing Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997); Hans v. Louisiana, 134 U.S. 1, 15 (1890)). A lawsuit brought against officials of a government entity in their official capacities is “in all respects other than name, to be treated as a suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985); see Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001). Because Plaintiff's claims for damages against Defendant Hochul in her official capacity is effectively an “ac tion[] for the recovery of money from the state,” Leitner, 779 F.3d at 134, sovereign immunity bars them.

12 Moreover, to the extent that Plaintiff’s claims against Defe ndant Hochul in her official capacity seek prospective relief and to the extent that Plaintiff’s claims are construed as against Defendant Hochul in her individual capacity, I recommend that they be dismissed for failure to allege Defendant Hochul’s personal invol vement in any constitutional violation. Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)); see Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986) (holding that in order to prevail on a section 1983 cause of action against an individual, a plaintiff must show “a tangible connection between the acts of a defendant and the injuries suffered.”); Provost v. City of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001) (internal quotation marks omitted) (“[D]irect participation as a basis of liability in this context requires intentional participation in the conduct constituting a violation of the victim’s rights by one who knew of th e facts rendering it illegal.”). The Second Circuit has made clear that “there is no special rule for supervisory liability,” and a “plaintiff must plead and prove ‘that each Govern ment-official defendant, through the official’s own individual actions, has violated the Constitution.’” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020). Here, although Plaintiff names Defendant Hochul as a party, the body of the Complaint lacks any allegations of wrongdoing by her. (See generally Dkt. No. 1.) As a result, I recommend that Plaintiff’ s claims against Defendant Hochul be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).

2. Claims Against Defendant New York State As set forth above, sovereign immunity pursuant to the Eleventh Amendment bars individuals from suing states in federal court, unless Congress abrogates states’ immunity or a state consents to suit. See U.S. Const. Amend. XI; Gollomp v. Spitzer, 568 F.3d 355, 365-66 (2d

13 Cir. 2009). Accordingly, I recommend that Plaintiff's claims asserted against the New York State be dismissed pursuant to Section 1915(e)(2)(B)(i).

3. Claims Against Defendant McDonald The Complaint identifies Defendant McDonald “as the commissioner of the Department of Health in New York State.” (Dkt. No. 1 at 1.) To the extent that the Complaint is construed as asserting claims against Defendant McDonald in his official capacity, he is immune from suit pursuant to the Eleventh Amendment.

Moreover, to the extent that the Complaint is construed as asserting claims against Defendant McDonald in his individual capacity, I recommend that they be dismissed for failure to assert his personal involvement in any constitutional violation.

4. Claims Against Defendant Caldwell Judges are absolutely immune from suit for claims seeking damages for any actions taken within the scope of their judicial responsibilities. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991). Generally, “acts arising out of, or related to, individual cases before [a] judge are considered judicial in nature.” Bliven v. Hunt, 579 F.3d 204, 210 (2d Cir. 2009). “[E]ven allegations of bad faith or malice cannot overcome judicial immunity.” Bliven, 579 F.3d at 209. Judicial immunity does not apply when a judge takes action outside his or her judicial capacity, or when a judge takes action that, although judicial in nature, is taken “in the complete absence of all jurisdiction.” Mireles 502 U.S. at 11-12; see also Bliven, 579 F.3d at 209-10 (describing actions that are judicial in nature). However, “the scope of [a] judge's jurisdiction must be construed broadly where the issue is the immunity of the judge.” Stump v. Sparkman, 435 U.S. 349, 356 (1978).

14 Plaintiff asserts claims that appear to arise from the efforts of Defendant Caldwell, in his capacity as a family court judge in Oneida County. (Dkt. No. 1 at 6.) Defendant Judge Caldwell is therefore immune from suit under the doctrine of judicial immunity. As a result, I recommend that Plaintiff's claims against Defendant Caldwell in his individual capacity be dismissed based on the doctrine of judicial immunity.

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

5. Claims Against Defendants Johnson, Ottaviano, Boyea, and Primo The Complaint alleges that Defendant Johnson was an “Onondaga Family Court attorney” who was tasked with conducting a “virtual meeting call for the Onondaga County family Courthouse.” (Dkt. No. 1 at 2.) The Co mplaint alleges that Defendant Ottaviano was a court assistant who postponed a hearing that was scheduled for February 15, 2023. (Dkt. No. 1

15 at ¶ 18.) The Complaint alleges that Defendant Boyea was a “Secretary” who emailed a modified custody order signed by Defendant Cecile. (Dkt. No. 1 at ¶ 23.) Finally, the Complaint alleges that Defendant Primo is the Clerk of the Court in Onondaga County Family Court (Dkt. No. 1 at ¶ 10) and he notified the parties of a hearing scheduled on July 20, 2023 (id. at ¶ 22).

“As a general principle, a government attorney is entitled to absolute immunity when functioning as an advocate of the state in a way that is intimately associated with the judicial process.” Mangiafico v. Blumenthal, 471 F.3d 391, 396 (2d Cir. 2006) (citing Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). Judicial immunity has been extended to judicial law clerks, the New York State Chief Administrative Judge, court attorneys, and the chief clerks of several state courts. Jackson v. Pfau, 523 F. App’x 736, 737-38 (2d Cir. 2013) (citing Rodriguez v. Weprin, 116 F.3d 62, 66 (2d Cir. 1997)).

As a result, I recommend that Plaintiff's claims against Defendants Johnson, Ottaviano, Boyea, and Primo in their individual capacities be dismissed, because they are immune from suit. 5

See Leftridge v. Judicial Branch, 22-CV-0411, 2023 WL 4304792, at *9 (D. Conn. June 30, 2023) (dismissing the plaintiff's claims against the state court clerks of court based on the doctrine of quasi-judicial immunity where “their alleged actions arose out of or related to

5 In the alternative, I recommend that Plaintiff’s cla ims against Defendants Johnson, Ottaviano, Boyea, and Primo be dismissed because the Complaint fails to allege the personal involvement of them in any alleged constitutional deprivation, which is a prerequisite to an award of damages under 42 U.S.C. § 1983. Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)). Here, although Plaintiff names Defendants Johnson, Ottaviano, Boyea, and Primo as parties to the action, the body of the Complaint lacks any allegations of wrongdoing by them. (See generally Dkt. No. 1.) As a result, I recommend that, in the alternative, Plaintiff’s claims against Defendants Johnson, Ottaviano, Boyea, and Primo be dismissed for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B).

16 [plaintiff]’s child support a nd child custody proceedings.”); Braithwaite v. Tropea, 23-CV-1431, 2023 WL 4207907, at *4 (E.D.N.Y. June 27, 2023) (citing Jackson v. Pfau, 523 F. App'x 736, 737-38 (2d Cir. 2013) (affirming dismissal pursuant to Section 1915(e)(2)(B) of pro se plaintiff's Section 1983 claims against the Chief Clerks of several state courts based on the doctrine of judicial immunity)) (dismissing as frivolous the plaintiff's claims against the clerk of the court because he was entitled to absolute immunity); Mendez v. Johnson, 22-CV-6811, 2022 WL 3587600, at *2 (S.D.N.Y. Aug. 22, 2022) (citing inter alia, Chmura v. Norton, Hammersley, Lopez & Skokos Inverso PA, 17-CV-2164, 2018 WL 2138631, at *2 (D. Conn. May 9, 2018) (extending judicial immunity to a clerk of court); Manko v. Ruchelsman, 12-CV-4100, 2012 WL 4034038, at *2 (E.D.N.Y. Sept. 10, 2012) (same)) (noting that courts have routinely granted judicial immunity to “governmen t officials, including clerks of court and other court employees, for their acts that assist a judge in the performance of his or her judicial duties.”).

Moreover, I recommend that Plaintiff's claims against Defendants Johnson, Ottviano, Boyea, and Primo in their official capacities as employees of the Onondaga Family Court be dismissed because the Onondaga Family Court is an arm of the New York state court system and New York State is immune from suit pursuant to the Eleventh Amendment. Braithwaite, 2023 WL 4207907, at *4 (collecting cases) (holding that the plaintiff's claims against the Chief Clerk of the Suffolk County Court in his official capacity are barred by the Eleventh Amendment).

6. Claims Against Defendants Dejoseph, Cecile, Cerio, Mulroy, and

Pirro Baily Plaintiff’s claims agains t Defendants Dejoseph, Cecile, Cerio, Mulroy, and Pirro Baily relate to their capacities as Onondaga County Family Court judges. (See generally Dkt. No. 1.) As set forth above in Part IV.B.4. of this Order and Report-Recommendation, Defendants Dejoseph, Cecile, Cerio, Mulroy, and Pirro Baily in their individual capacities are immune from

17 suit pursuant to the doctrine of absolute judicial immunity. Moreover, as set forth above in Part IV.B.4. of this Order and Report-Recommendation, claims against Defendants Dejoseph, Cecile, Cerio, Mulroy, and Pirro Baily in their official capacities are essentially claims against New York State, which is immune from suit pursuant to the Eleventh Amendment.

7. Claims Against Defendants DeRue and Domachowski Plaintiff’s claims against De fendants DeRue and Domachowski relate to their roles as Onondaga County Family Court support magistrates. (See generally Dkt. No. 1.) As set forth above in Part IV.B.4. of this Order and Report-Recommendation, Defendants DeRue and Domachowski in their individual capacities are immune from suit pursuant to the doctrine of absolute judicial immunity. See Miller v. Primo, 23-CV-1051, 2023 WL 6379325, at *6 (N.D.N.Y. Sept. 29, 2023) (Lovric, M.J.) (recommending dismissal of the plaintiff’s claims against “Defendants DeRue and Domachowski, w ho acted as the support magistrate judges” and finding that such claims “are barred under the doctrine of judicial immunity”), report and recommendation adopted by 2023 WL 754323 (N.D.N.Y. Nov. 14, 2023) (Sannes, C.J.). Moreover, as set forth above in Part IV.B.4. of this Order and Report-Recommendation, claims against Defendants DeRue and Domachowski in their official capacities are essentially claims against New York State, and are immune from suit pursuant to the Eleventh Amendment.

8. Claims Against Defendant Stanislaus “The law is clear that court referees are entitled to absolute judicial immunity from liability with respect to acts taken in the scope of their duties.” Khrapko v. Splain, 389 F. Supp. 3d 199, 205 (W.D.N.Y. 2019) (citing Green v. Kadilac Mortg. Bankers, Ltd., 936 F. Supp. 108, 115 (S.D.N.Y. 1996); Weiss v. Feigenbaum, 558 F. Supp. 265, 272 (E.D.N.Y. 1982)); accord Witcher v. Moriber, 21-CV-6168, 2022 WL 1085297, at *2 (E.D.N.Y. Apr. 11, 2022) (citing

18 Wilson v. Wilson-Polson, 446 F. App'x 330, 331 (2d Cir. 2011) (allegations that a New York State Family Court referee violated plaintiff's procedural due process rights failed in light of the referee's absolute immunity to suit); Topolski v. Wrobleski, 13-CV-0872, 2014 WL 2215761, at *3 (N.D.N.Y. May 29, 2014) (“Judicial immunity is so broad that judges and referees ‘are not liable to civil actions for their judicial acts, even when such acts . . . are alleged to have been done maliciously or corruptly.’”); Renner v. Stanton, 13-CV-1676, 2013 WL 1898389, at *3 (E.D.N.Y. May 7, 2013) (dismissing claims against Family Court Referee based on judicial immunity)).

As a result, I recommend that Plaintiff's claim against Defendant Stanislaus in her individual capacity be dismissed based on the doctrine of absolute judicial immunity. See Miller Ex v. Primo, 22-CV-0680, 2022 WL 16556060, at *5 (N.D.N.Y. Sept. 29, 2022) (Lovric, M.J.) (recommending dismissal of the plaintiff’s claims against Defendant Stanislaus because she was entitled to absolute judicial immunity as a court attorney referee), report and recommendation adopted by 2022 WL 16551700 (N.D.N.Y. Oct. 31, 2022) (Sannes, C.J.).

Moreover, as set forth above in Part IV.B.4. of this Order and Report-Recommendation, any claim against Defendant Stanislaus in her official capacity is essentially a claim against New York State, which is immune from suit pursuant to the Eleventh Amendment.

9. Claims Against Defendant Bradshaw Based on the allegations contained in the Complaint, it appears that Defendant Bradshaw was an attorney appointed to represent one of Plaintiff’s minor children. (Dkt. No. 1 at ¶ 16.) The Second Circuit has held that “law guardians who act as ‘attorney[s] for the child’ are not state actors for the purposes of suits filed pursuant to § 1983.” Milan v. Wertheimer, 808 F.3d 961, 964 (2d Cir. 2015).

19 As a result, I recommend that Plaintiff’s claims against Defendant Bradshaw be dismissed.

10. Claims Against Defendant Onondaga County Sheriff Defendant Onondaga County Sheriff is merely a department of a municipality, and thus, is not amenable to suit. See White v. Syracuse Police Dep't, 18-CV-1471, 2019 WL 981850, at *3 (N.D.N.Y. Jan. 7, 2019) (Peebles, M.J.) (citing Krug v. Cnty. of Rennselaer, 559 F. Supp. 2d 223, 247 (N.D.N.Y. 2008) (McAvoy, J.); Turczyn ex rel. McGregor v. City of Utica, 13-CV- 1357, 2014 WL 6685476, at *2 (N.D.N.Y. Nov. 26, 2014) (Sharpe, J.); Hoisington v. Cnty. of Sullivan, 55 F. Supp. 2d 212, 214 (S.D.N.Y. 1999) (“Unde r New York law, a department of a municipal entity is merely a subdivision of the municipality and has no separate legal existence. Therefore, municipal departments like the Department of Social Services are not amenable to suit and no claims lie directly against the Department.”)) (“Although a municipality is subject to suit pursuant to section 1983, see Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978), a municipal . . . department does not have the capacity to be sued as an entity separate from the municipality in which it is located.”), report and recommendation adopted, 2019 WL 974824 (N.D.N.Y. Feb. 28, 2019) (Suddaby, C.J.). As a result, I recommend that Plaintiff's claims against Defendant Onondaga County Sheriff be dismissed because it is not an entity amenable to suit. 6

6 Even if Plaintiff’s claims against Defe ndant Onondaga County Sheriff were liberally construed as against Onondaga County, I would recommend that they be dismissed. There is no basis for municipal liability alleged in the Complaint. Plaintiff essentially complains of a discrete incident, during which an officer or individual employed by Defendant Onondaga County Sheriff did not act properly. (Dkt. No. 1 at 4.) There is no indication that Plaintiff can assert a policy or custom which would support municipal liability based on these facts. In addition, none of Plaintiff's allegations reflect a failure to train or “delib erate indifference” to the rights of persons who would come into contact with employees of Onondaga County.

20 11. Claims Against Defendant Hisco*ck Legal Aid The Complaint alleges that Defendant Hisco*ck Legal Aid and attorneys employed by it represented the mother of Plaintiff’s minor child ren during the State Family Court proceedings. (Dkt. No. 1 at ¶ 5.) Notwithstanding the appointment of Defendant Hisco*ck Legal Aid as legal representation, it was not a state actor for purposes of 42 U.S.C. § 1983. “Although [Defendant Hisco*ck Legal Aid was] supplied and funded by the state, [it] act[ed] according to the best interests of [its] client with ‘no obligation to the mission of the state.’” Milan, 808 F.3d at 964 (quoting Meeker v. Kercher, 782 F.2d 153, 155 (10th Cir. 1986)) (internal quotation omitted).

As a result, I recommend that Plaintiff’s cl aims against Defendant Hisco*ck Legal Aid be dismissed.

12. Claims Against Defendant Department of Health and Social Service It is unclear based on the allegations in the Complaint if Defendant Department of Health and Social Service is a division of New York State or Onondaga County. To the extent that it is a department of New York State, it is immune from suit pursuant to the Eleventh Amendment as set forth in Part IV.B.1 of this Order and Report-Recommendation. To the extent that Defendant Department of Health and Social Service is a department of Onondaga County, it is not amenable to suit pursuant as set forth above in Part IV.B.10 of this Order and Report-Recommendation. 7

13. Claims Against Defendants Milner and Unknown “Dismissal is appropriate wher e a defendant is listed in the caption, but the body of the complaint fails to indicate what the defendant did to the plaintiff.” Cipriani v. Buffardi, 06-CV- 0889, 2007 WL 607341, at *1 (N.D.N.Y. Feb. 20, 2007) (Kahn, J.) (citing Gonzalez v. City of

7 Further, as set forth above in note 6, supra, to the extent that the Complaint is liberally construed as alleging a claim against Onondaga County, it fails to allege any basis for municipal liability.

21 New York, 97-CV-2246, 1998 WL 382055, at *2 (S.D.N.Y. July 9, 1998)); see also Crown v. Wagenstein, 96-CV-3895, 1998 WL 118169, at *1 (S.D.N.Y. Mar. 16, 1998) (mere inclusion of warden's name in complaint insufficient to allege personal involvement); Taylor v. City of New York, 953 F. Supp. 95, 99 (S.D.N.Y. 1997) (same).

The Complaint names Milner and Unknown as defendants, but the body lacks any allegations of wrongdoing by these individuals. (See generally Dkt. No. 1.) As a result, I recommend that the claims against them be dismissed for failure to state a claim upon which relief may be granted.

For each of these alternative reasons, I recommend that the Complaint be dismissed in its entirety. V. OPPORTUNITY TO AMEND

Generally, a court should not dismiss claims contained in a complaint filed by a pro se litigant without granting leave to amend at least once “when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991); see also Fed. R. Civ. P. 15(a)(2) (“The c ourt should freely give leave when justice so requires.”). An opportunity to ame nd is not required, however, where “the problem with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact sufficient to support its claim, a complaint should be dismissed with prejudice.”). Stated differently, “[w]here it a ppears that granting leave to amend is unlikely to be productive, . . . it is not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d

22 129, 131 (2d Cir. 1993); accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.). 8

Here, better pleading could not cure the deficiencies described above. As a result, I recommend that Plaintiff’s Complaint be dismissed without leave to replead. VI. PLAINTIFF’S MOTION TO O BTAIN ECF LOGIN AND PASSWORD

In light of the recommended disposition of this case, Plaintiff's motion for ECF login and password is denied without prejudice. (Dkt. No. 3.) “Because this court is recommending dismissal at this time, the court will deny [P]laintiff's motion to obtain ECF privileges without prejudice.” Amato v. McGinty, 17-CV-0593, 2017 WL 9487185, at *11 (N.D.N.Y. June 6, 2017) (Baxter, M.J.), report and recommendation adopted, 2017 WL 4083575 (N.D.N.Y. Sept. 15, 2017) (D'Agostino, J.); see Mahmood v. United States Gov't, 20-CV-0207, 2020 WL 3965125, at *3 (N.D.N.Y. Mar. 17, 2020) (Stewart, M.J.) (same), report and recommendation adopted, 2020 WL 1808206 (N.D.N.Y. Apr. 9, 2020) (D'Agostino, J.). ACCORDINGLY, it is ORDERED that Plaintiff’s IFP appl ication (Dkt. No. 2) is GRANTED; and it is further ORDERED that Plaintiff’s motion to obtain an ECF login and password (Dkt. No. 3) is DENIED without prejudice; and it is further respectfully

8 See also Carris v. First Student, Inc., 132 F. Supp. 3d 321, 340-41 n.1 (N.D.N.Y. 2015) (Suddaby, C.J.) (explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999)—that th e Court should grant leave to amend “unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would be successful in stating a claim”—is likely not an accurate recitation of the governing law after Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev’d on other grounds , 682 F. App’x 30.

23 RECOMMENDED that the COURT DISMISS WITHOUT PREJUDICE AND WITHOUT LEAVE TO AMEND Plaintiff’s Complaint (Dkt. No. 1) in its entirety pursuant to 28 U.S.C. § 1915(e); and it is further

ORDERED that the Clerk of the Court shall file a copy of this Order and Report- Recommendation on Plaintiff, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit’s decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. 9

Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).

Dated: April __, 2024

Binghamton, New York

If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).

Footnotes 1 Plaintiff refers to Dickinson as both “Dickinson” and “Dickenson,” the court will refer to this defendant as

Dickinson. 2 For the sake of clarity, Dkt. No. 60, is deemed the operative pleading. On June 7, 2019, Murphy filed a motion

to amend the complaint. (Dkt. No. 50.) The motion was unopposed, and the clerk of the court was directed to file Exhibit A to the motion, (Dkt. No. 50, Attach. 1), as the amended complaint, (Dkt. No. 53). On July 1, 2019, the amended complaint was filed. (Dkt. No. 56.) However, on July, 2, 2019, the amended complaint was filed again, by Murphy, with the only apparent change being the inclusion of counsel's name. (Dkt. No. 58.) Then again the amended complaint was filed on July 19, 2019, by Murphy, this time attaching previously omitted summonses. (Dkt. No. 60.) To the extent defendants address Dkt. No. 56, 58, and/or 60 in their submissions, the court will construe them as against Dkt. No. 60. 3 The facts are drawn from Murphy's amended complaint, (Dkt. No. 60), and presented in the light most

favorable to him. 4 The amended complaint contains two paragraphs numbered “158” and two numbers “159.” To the extent

these paragraph are cited, they will be denoted as “158a” and “158b,” and “159a” and “159b.” 5 On August 8, 2021, Murphy filed a motion informing the court of alleged “improprieties” by defendants,

requesting that the amended RICO statement be accepted as timely, and seeking to file a further amended complaint. (Dkt. No. 156.) To the extent this motion sought leave to amend, it is denied as moot for the same reasons. Further, Edwards and Westcotts’ motion regarding Murphy's proposed amended complaint, (Dkt. No. 144), is granted, to the extent it sought denial of Murphy's motion to amend, and denied in all other respects. 6 For example, Murphy's amended complaint contains multiple errors in paragraph numbering (e.g. subsequent

paragraphs being numbered as follows: 157, 158, 159, 158, 159, 160; 266, 195, 267; and omitting paragraph number 248). Further, the amended complaint spells defendant's names in alternating fashions (e.g. Dickinson and Dickenson; Blumer and Bloomer). In his response to Ciciarelli's motion for judgment on the pleadings, (Dkt. No. 100), Murphy refers to defendant Conway rather than Ciciarelli, (Dkt. No. 126 at 5). Many of Murphy's responses to the Sheriff Defendants’ Rule 12(c) motions contained errors in the table of contents, including omitting or repeating Roman numerals (e.g., subsequent sections being enumerated as follows: I., III., V., VI.; and repeating the numeral VII.). (See, e.g., Dkt. No. 124.) Murphy submitted his motion to amend without a cover page and unsigned. (Dkt. No. 170.) In Murphy's response to Cassalia's motion for judgment on the pleadings, (Dkt. No. 98), Murphy responds to a statute of limitations argument that was not made by Cassalia, (Dkt. No. 118 at 17-18.) Finally, in his various responses to the Sheriff Defendants’ Rule 12(c) motions, Murphy completely fails to address arguments made by these defendants. (See, e.g., Dkt. No. 125 (failing to address arguments regarding his § 1983 retaliation claims).) While the court can tolerate the occasional inadvertent typographical error, Murphy's errors are numerous, and occur after his counsel

has requested a substantial amount of extension of filing deadlines. (Dkt. No. 106; Dkt. No. 109; Dkt. No.

114; Dkt. No. 119; Dkt. No. 146.) 7 Cambareri is not listed as a defendant in any of the causes of action headings in the amended complaint, but

is listed as a defendant in the paragraphs following Murphy's first cause of action, (Am. Compl. ¶¶ 250-53), therefore the court will construe Cambareri as a defendant to Murphy's first cause of action only. 8 Unless otherwise noted, for all of Murphy's causes of action, the individual defendants are sued in their

individual and official capacities. 9 See supra note 2. 10 While the amended complaint refers to an individual named “Bloomer,” out of an abundance of caution, the

court will assume this was an error by Murphy, and assume he intended to refer to defendant Blumer. 11 Murphy also pleads numerous “lesser” actions, which, when considered together would “deter a similarly

situated individual of ordinary firmness from exercising his or her constitutional rights.” Zelnik, 464 F.3d at 225-26; see Philips v. Bowan, 278 F.3d 103, 109 (2d Cir. 2002). For example, Murphy alleges he was forbidden from giving orders to subordinates, forbidden from using a patrol car or from displaying his uniform in public, “subject[ed] to threatening and abusive behavior” by others in the department, had his overtime opportunities reduced, was “ordered to undertake menial tasks under circ*mstances that were deliberately chosen to cause him physical discomfort and agitation,” was arbitrarily transferred, and was “subjected to public ridicule and embarrassment.” (Am. Compl. ¶ 245.) 12 Further, with respect to Peluso, the amended complaint also alleges that shortly after raising concerns

to Peluso that a complainant was not properly “attent[ed to] by [the Sheriff's Department] ... due to [the complainant's] ethnic background and her sex,” Murphy was aggressively confronted by Peluso, who later filed a “vacuous” internal complaint against Murphy which was “specifically intended to prevent ... Murphy from being promoted.” (Am. Compl. ¶¶ 44-55, 63-66, 101.) This further demonstrates a causal connection between Murphy's speech and the adverse employment actions carried out by Peluso. See Shanks, 653 F. Supp. 2d at 167. 13 To the extent Murphy makes this argument with respect to his other causes of action, it is similarly

unpersuasive. (See, e.g., Dkt. No. 116 at 21, 23-24; Dkt. No. 117 at 14, 19-20; Dkt. No. 118 at 14, 19-20; Dkt. No. 124 at 15; Dkt. 125 at 15-16; Dkt. No. 126 at 15.) 14 Murphy's argument that he is a member of a “class of one,” ( see, e.g., Dkt. No. 125 at 13), is inapplicable

here. See infra Part IV.E.; see also Volunteer Fire Ass'n of Tappan, Inc. v. Cty. of Rockland, No. 09-CV-4622, 2010 WL 4968247, at *8 n.13 (S.D.N.Y. Nov. 24, 2010) (“A plaintiff alleging a Section 1985 violation may not proceed under a ‘class of one’ theory.” (citation omitted)). 15 Because Murphy is represented by counsel, his amended complaint is not entitled to the special solicitude

afforded to pro se pleadings. See Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006). Therefore, the court has not considered whether the amended complaint states a claim pursuant to the first clause of § 1985(2), which requires that a plaintiff plead: “(1) a conspiracy between two or more persons, (2) to deter a witness by force, intimidation or threat from attending court or testifying freely in any pending matter, which (3) results in injury to the plaintiff,” Greene v. City of New York, No. 08-cv-00243, 2017 WL 1030707, at *31 (E.D.N.Y. Mar. 15, 2017) (quoting Chalal v. Paine Webber Inc., 725 F.2d 20, 23 (2d Cir. 1984)), and which does not require a showing of any class-based animus. See Kush v. Rutledge, 460 U.S. 719, 726 (1983); c.f. Langton v. Town of Chester, No. 14 Civ. 9474, 2017 WL 6988708, at *6 (S.D.N.Y. Sept. 26, 2017) (citation omitted).

16 The Sheriff Defendants’ argument that Murphy has failed to state a claim for defamation appears to be

premised on the more stringent pleading requirements of N.Y. C.P.L.R. § 3016(a), which requires that “the particular words complained of shall be set forth in the complaint.” ( See, e.g., Dkt. No. 88, Attach. 1 at 19.) While the amended complaint does not meet this standard, “state procedural rules do not apply to federal courts ... and federal courts instead apply the pleading standards set forth in Rule 8 of the Federal Rules of Civil Procedure.” Nouinou v. Smith, No. 20-CV-8682, 2021 WL 4340952, at *5 (S.D.N.Y. Sept. 22, 2021) (citing Treistman v. Wacks, No. 12-CV-1897, 2017 WL 639322, at *4 (N.D.N.Y. 2017)); but see Nichols v. BAC Home Loans Servicing LP, No. 1:13-CV-00224, 2013 WL 5723072, at *12 (N.D.N.Y. Oct. 18, 2013) (applying the heightened pleading standard of C.P.L.R. 3016 and requiring the plaintiff to plead “the particular words giving rise to his [defamation] claim”). However, as explained herein, Murphy's cause of action fails under either pleading standard. 17 The court will not discuss statements attributable to any of the defendants that are clearly non-defamatory,

such as: “Blumer indicated that she would address the matter with the deputy,” (Am. Compl. ¶ 90), “Peluso ... stated ... that when he ‘sixes’ a complaint, it stays ‘sixed,’ ” ( id. ¶ 63), or “Ciciarelli informed Murphy that Gratien had not recorded the fact of the illegal search and seizure in his Duty Commander log for that night,” ( id. ¶ 110). See Premier Med. Sys., LLC v. NeuroLogica Corp., No. 1:21-cv-1337, 2022 WL 603999, at *12 (S.D.N.Y. Feb. 28, 2022) (finding that a defamatory statement must “expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and ... deprive him of ... friendly intercourse in society”) (citation omitted). 18 Murphy also alleges, with respect to Dickinson, that, after Murphy brought this suit, Dickinson made “had

several improper, unsupported and baseless referrals to the Onondaga County Sheriff's Office Internal Affairs Office.” (Am. Compl. ¶ 229.) Murphy does not provide the content of these referrals, however, and, thus, this allegation does not allow him to avoid dismissal as to Dickinson. See Hillary, 2015 WL 902930, at *11 (holding that, for a defamation claim to survive a motion to dismiss, a plaintiff must “identify ... the allegedly defamatory statements” (citation omitted)). 19 Murphy lists five ambiguous statements within his defamation cause of action, none of which are attributed

to a particular defendant. (Am. Compl. ¶ 360.) To the extent these are alleged as against Cassalia, Ciciarelli, or any of the defendants, they do not make out a claim of defamation. See Hillary, 2015 WL 902930, at *11 (for a defamation claim to survive a motion to dismiss a plaintiff must “identify ... the person who made the statements” (citation omitted)). 20 For the reasons noted above, Murphy's defamation claims against Conway are dismissed, regardless of this

Footnotes 1 The Court notes that, pursuant to Local Rule 9.2 of the District's Local Rules of Practice, a Civil RICO

Statement shall be construed as an amendment to the pleadings. 2 Because Plaintiffs’ RICO Statement contains substantially the same allegations as their Complaint, the Court

will cite Plaintiffs’ Complaint only. 3 According to Plaintiffs, DMS ceased operations in 2017. (Dkt. No. 1, at 46.) 4 Accord, Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y. 1999) (Munson, J.); Hudson v. Artuz, 95-CV-4768,

1998 WL 832708, at *1 (S.D.N.Y. Nov. 30, 1998); Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y.1995) (McAvoy, C.J.). 5 See Fed. R. Civ. P. 10(c) (“A copy of any written instrument which is an exhibit to a pleading is a part thereof

for all purposes.”); L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d. Cir. 2011) (explaining that conversion from a motion to dismiss for failure to state a claim to a motion for summary judgment is not necessary under Fed. R. Civ. P. 12[d] if the “matters outside the pleadings” in consist of [1] documents attached to the complaint or answer, [2] documents incorporated by reference in the complaint (and provided by the parties), [3] documents that, although not incorporated by reference, are “integral” to the complaint, or [4] any matter of which the court can take judicial notice for the factual background of the case); DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (explaining that a district court considering a dismissal pursuant to Fed. R. Civ. 12(b)(6) “may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint.... Where a document is not incorporated by reference, the court may neverless consider it where the complaint relies heavily upon its terms and effect, thereby rendering the document ‘integral’ to the complaint.... However, even if a document is ‘integral’ to the complaint, it must be clear on the record that no dispute exists regarding the authenticity or accuracy of the document. It must also be clear that there exist no material disputed issues of fact regarding the relevance of the document.”) [internal quotation marks and citations omitted]; Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2009) (“The complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.”) (internal quotation marks and citations omitted); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir.1995) (per curiam) (“[W]hen a plaintiff chooses not to attach to the complaint or incorporate by reference a [document] upon which it solely relies and which is integral to the complaint,” the court may nevertheless take the document into consideration in deciding [a] defendant's motion to dismiss, without converting the proceeding to one for summary judgment.”) (internal quotation marks and citation omitted).

6 Accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) (“[T]he

court need not grant leave to amend where it appears that amendment would prove to be unproductive or futile.”) (citation omitted); see also Foman v. Davis, 371 U.S. 178, 182 (1962) (finding that denial was not an abuse of discretion where an amendment would be futile); Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (“The problem with Cuoco's causes of action is substantive; better pleading will not cure it. Repleading would thus be futile. Such a futile request to replead should be denied.”) (citation omitted); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact sufficient to support its claim, a complaint should be dismissed with prejudice.”) (citation omitted); Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir. 1990) (“[W]here ... there is no merit in the proposed amendments, leave to amend should be denied”). End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

Footnotes 1 Since Plaintiff's complaint can be liberally construed as attempting to bring a claim under the FTCA and

because it is unclear from the complaint whether Plaintiff may still timely exhaust his administrative remedies, the dismissal will be without prejudice. See Green v. Fed. Bureau of Prisons, No. 11 Civ. 2554, 2012 WL 1694632, *3 (S.D.N.Y. May 15, 2012) (holding that if a court dismisses a complaint “for failure to exhaust administrative remedies, dismissal without prejudice is appropriate if the time permitted for pursuant administrative remedies has not expired”) (citing Berry v. Kerik, 366 F.3d 85, 87 (2d Cir. 2004)). End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

Footnotes 1 If you are proceeding pro se and are served with this Order by mail, three additional days will be added to

the fourteen-day period, meaning that you have seventeen days from the date the order was mailed to you to serve and file objections. FED. R. CIV. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. FED. R. CIV. P. 6(a)(1)(C). End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

Footnotes 1 While all Plaintiffs have submitted claims against Defendants, the narrative in the complaint and objections is

written in a singular voice referring to Plaintiff Amato as “I,” “me,” and “myself.” See generally Dkt. Nos. 1, 17. 2 The objections make several comments claiming that “this court” “held” or “ruled” and cited case law from

the Third Department. See, e.g., Dkt. No. 17 at 23. 3 Similarly, Plaintiffs' purported state law claims are entirely conclusory and do not come close to alleging facts

to support a valid cause of action. See Dkt. No. 1 at 24-26. 4 The court determined that despite the plaintiff “raising constitutional issues, the allegations stem from a state

domestic relations matter and are thus outside this Court's jurisdiction.” Bukowski, 2017 WL 1592578, at *3. 5 Plaintiffs filed this action on May 26, 2017 and Defendant McGinty rendered his custody determination on

October 24, 2016. See Dkt. No. 17 at 4-5, 67. 6 See Younger v. Harris, 401 U.S. 37 (1971).

7 The factors examine “whether the state interest is vital and whether the state proceeding affords an adequate

Footnotes 1 The court notes that on June 2, 2017, plaintiff Amato filed a motion for a Temporary Restraining Order. (Dkt.

No. 8). District Judge D'Agostino denied the motion on the same day. (Dkt. No. 9).

2 Plaintiff Amato and defendant Patrick Bessmer were apparently not married.

3 The court notes that, although there are multiple plaintiffs, most of the defendants' alleged conduct was

directed at plaintiff Amato alone. Plaintiff Amato appears to allege that the defendants' conduct toward her and CB injured the other defendants because of their family relationship to plaintiff Amato and CB. (See Compl. ¶ 45) (stating that “no parties had a due process court hearing or trial, [and] were never served any form of order”). 4 There appears to be no ¶ 21 in the complaint. 5 Although plaintiffs' complaint asks that two sections of New York Domestic Relations Law be declared

“unconstitutional,” the court must first note that, to the extent that the claim could be asserted at all, it could only be asserted by plaintiff Amato because she is the only plaintiff who has been a party to the custody proceedings and to whom the statute would have been applied. In addition, none of the individuals named as defendants are proper defendants in such an action. Finally, in cases involving Domestic Relations issues, the court must afford the state court appropriate deference in light of ongoing proceedings involving the plaintiff. See Kahn v. Shaiswit, 414 F.Supp. 1064, 1068 (S.D.N.Y. 1976) (dismissing an action by plaintiff husband in a divorce matter in which he challenged the constitutionality of New York Domestic Relations Law § 239). The court in Kahn cited Mendez v. Heller, 530 F.2d 457 (2d Cir. 1976), in which Judge Oakes stated in a concurring opinion, that “ ‘probate and domestic relations are matters which have long been recognized as invoking, at least initially, interests which are predominantly of state concern.’ ” Id. at 1067 (quoting Mendez, 530 F.2d at 461). Thus, to the extent that plaintiff Amato may be attempting to challenge the constitutionality of sections of the New York Domestic Relations Law, the claim may be dismissed. 6 Judicial immunity applies to shield Judge McGinty's liability as to all the plaintiff's, although plaintiff Amato is

generally the plaintiff to whom the complaint refers. Plaintiff Amato appears to attempt to include the other plaintiffs by stating that they did not get “hearings,” they do not appear to have been parties to the custody case. To the extent that any of the other “plaintiffs,” uncle, aunt, grandmother, sister, niece and nephew had dealings with Judge McGinty, it was only in connection with the custody action, and the judge is entitled to absolute immunity no matter who the plaintiff is. 7 As stated above, defendant Ingram is entitled to immunity. The lack of state action is an alternative basis

for dismissal as against this defendant. 8 Plaintiff alleges that she was verbally and physically threatened by defendants Bessmer and Augustine

outside the court, and that Judge McGinty only issued an order of protection for plaintiff Amato and not for CB. (Compl. ¶ 29). The alleged attack by Bessmer and Augustine was certainly a “private action,” and the judge's failure to issue a protective order for CB is not alleged to have been the result of any “conspiracy.” 9 An limited exception exists if an individual appears for an estate in which there are no other beneficiaries or

creditors. See Guest v. Hansen, 603 F.3d 15, 20 (2d Cir. 2010). The exception is not applicable to this case. An exception has also been established for parents representing their children in applications for Supplemental Security Income (“SSI”). Machadio v. Apfel, 276 F.3d 103, 106-07 (2d Cir. 2002). However, the interests of the child and the parent were “intertwined,” and the Social Security regulations provided for such representation. 10 One plaintiff has attempted to sign the complaint herself as a “minor,” with her “guardian” signing the complaint

underneath the minor's name. (Compl. at CM/ECF p.32). 11 Fed. R. Civ. P. 17(e).

12 Most of the plaintiffs live in New York State, but Michelle Arzola and her two “Doe” “children” live in Ohio.

(Compl. ¶ 7). 13 One of the rulings granted sole custody to the father of the child. 2017 WL 1592578, at *1. 14 District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983) and

Rooker v. Fidelity Trust Co., 263 U.S. 413, 414 17, 44 S.Ct. 149, 68 L.Ed. 362 (1923). 15 Plaintiff Amato does allege that custody has already been awarded to defendant Bessmer. 16 401 U.S. 37 (1971). 17 Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975). 18 Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987). 19 Sprint did not involve custody proceedings. 20 Younger does not apply to monetary damages, thus, the dismissal of plaintiff's damage claims would be

governed by the domestic relations exception and not Younger. 21 The letter is referring to a “decision” from 2016. It is unclear what that decision may have been or whether

it was the judge's actual custody decision. 22 Although plaintiff also mentions the Family Court Act in paragraph 36 of her complaint, she does not indicate

Footnotes 1 Defendants correctly point out that New York City agencies, such as NYC DOC, are organizational

subdivisions of the City of New York lacking independent legal existence and are not themselves subject to suit. See, e.g., Adams v. Galletta, 966 F.Supp. 210, 212 (S.D.N.Y.1997) (“where a plaintiff has named the Department of Corrections as a defendant, he has sued a non-suable entity”).

Footnotes 1 Plaintiff was granted leave to proceed with this action in forma pauperis. Mem.-Decision and Order (Dkt.

Footnotes

1 The Court notes that, on January 11, 2019, Plaintiff filed a letter from the City of Syracuse Citizen Review

Board dated December 31, 2018, outlining its findings with respect to this matter. (Dkt. No. 10.) In its letter, the Citizen Review Board upheld Plaintiff’s claim for excessive force against “Det. One,” recommended a written reprimand against that individual, and absolved “Det. Two,” “Sgt. One,” and “Lt. One” from wrongdoing regarding the use of excessive force. (Id.) The Court does not liberally construe this letter as any sort of Objection to the Report-Recommendation. 2 When no objection is made to a report-recommendation, the Court subjects that report-recommendation to

only a clear error review. Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a “clear error” review, “the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Id.; see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge’s] report to which no specific objection is made, so long as those sections are not facially erroneous.”) (internal quotation marks omitted). End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

Footnotes 1 The facts are presented in the light most favorable to plaintiff. 2 See Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). 3 In fact, Turczyn claims that she lodged five to ten complaints—of which Shanley was aware—with the Utica

Police within the twelve months preceding the murder. (Am.Compl.¶¶ 12, 13.) So many occurrences may amount to “repeated [and] sustained inaction ... in the face of potential acts of violence.” Okin, 577 F.3d at 428. End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

Footnotes 1 Plaintiff filed both an original and amended motion to proceed in this action IFP. Dkt. Nos. 2, 6. While the two

motions contain slightly different information concerning plaintiff's financial status, only the amended motion contains the required certification from an official at the correctional facility in which plaintiff is confined. Compare Dkt. No. 3 with Dkt. No. 7. Accordingly, plaintiff's original IFP application is denied as incomplete. 2 The total cost for filing a civil action in this court is $400.00, consisting of the civil filing fee of $350.00, see 28

U.S.C. § 1914(a), and an administrative fee of $50.00. Although an inmate granted IFP status is not required to pay the $50.00 administrative fee, he is required to pay, over time, the full amount of the $350.00 filing fee regardless of the outcome of the action. See 28 U.S.C. § 1915(b)(3). 3 Plaintiff is reminded that, although his IFP application has been granted, he will still be required to pay fees

that he incurs in this action, including copying and/or witness fees. 4 The court expresses no opinion concerning whether plaintiff's claims can survive a properly filed motion to

dismiss or motion for summary judgment, or whether he may prevail at trial. 5 If you are proceeding pro se and are served with this report, recommendation, and order by mail, three

additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the report, recommendation, and order was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C). End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

Footnotes 1 The court must interpret pro se complaints to raise the strongest arguments they suggest. Soto v. Walker,

44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). 2 Although unclear from the content of the Complaint, it appears that Plaintiff prefers his name be written in

entirely lowercase letters but that the caption in the state court proceedings listed the parties’ names in all capital letters. 3 Plaintiff's Complaint also contains an extensive list with several legal terms that do not appear to have any

meaning in context. (Dkt. No. 1 at 7.) More specifically, under the paragraph in the form complaint asking what relief Plaintiff seeks, states: see invoices attached, Abuse of Power, Abuse of Process, Appearance in Court, Breach of Contract/ Oath/ Charter, Breach of Duty, Capitis Diminutio Maxima, Check and Balance Violation, Conspiracy/ Collusion, Deceit*, Discrimination/ Vexatious Litigation, Duty of Care Violation, Embezzlement/ Extortion, Entrapment*, Factual Causation*, Fair Hearing Request/ Violation, Fraud Upon the Court, Fraudulent Conveyance/Conversion, Fruit of The Poisonous Tree, Gross Negligence, Malicious Wrongdoing, Mental Anguish, Mis-Application of Statute, Mis-Information/False Evidence, Misappropriation of Funds, Misrepresentation, Mistrial, Natural Law Violation, Obstruction of Justice, Psychological Warfare, R.I.C.O. (Illegal Activities Per Person), Serving in Multiple Capacities, Speedy Trial Violation, Tax Fraud, The Use of Policies to Override The Law, Treason, Trespassing, Undisclosed Policies/Usury, Unholy Alliance, United States Bill of Rights Violation, Unjust Enrichment, Unlawful Taking, Use of injurious or Damaging Laws, Using Public Funds For Private Interests (Dkt. No. 1 at 7.) 4 The language of that section is ambiguous because it suggests an intent to limit availability of in forma

pauperis status to prison inmates. See 28 U.S.C. § 1915(a)(1) (authorizing the commencement of an action without prepayment of fees “by a person who submits an affidavit that includes a statement of all assets such prisoner possesses”). The courts have construed that section, however, as making in forma pauperis status available to any litigant who can meet the governing financial criteria. Hayes v. United States, 71 Fed. Cl. 366, 367 (Fed. Cl. 2006); Fridman v. City of N.Y., 195 F. Supp. 2d 534, 536 n.1 (S.D.N.Y. 2002). 5 Plaintiff is reminded that, although his application to proceed in forma pauperis has been granted, he is still

required to pay fees that he may incur in this action, including copying and/or witness fees. 6 Due to the nature of Plaintiff's Complaint, it is difficult to precisely determine exactly which doctrine applies, but

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

7 In the alternative, I recommend that Plaintiff's claim against Defendant Newton be dismissed for failure to

allege Defendant Newton's personal involvement in any violation of Plaintiff's rights. Again, Plaintiff listed Defendant Newton as a defendant in this case but failed to allege any action taken by Defendant Newton in the body of the Complaint. 8 See also Carris v. First Student, Inc., 132 F. Supp. 3d 321, 340-41 n.1 (N.D.N.Y. 2015) (Suddaby, C.J.)

(explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999)— that the Court should grant leave to amend “unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would be successful in stating a claim”—is likely not an accurate recitation of the governing law after Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev'd on other grounds, 682 F. App'x 30. 9 If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional

days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C). End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

Footnotes 1 Because this matter is before the Court on motions to dismiss, the allegations of the Complaint are accepted

as true and form the basis of this section. See Boyd v. Nationwide Mut. Ins. Co., 208 F.3d 406, 408 (2d Cir.2000); see also Matson v. Bd. of Educ., 631 F.3d 57, 72 (2d Cir.2011) (noting that, in addressing a motion

to dismiss, a court must view a plaintiff's factual allegations “in a light most favorable to the plaintiff and draw[ ]

all reasonable inferences in her favor”). 2 Pavone also argues that the Court lacks subject matter jurisdiction over Plaintiff's claim pursuant to the

domestic relations exception. See Pavone and Jackson Mem. at 6. This exception “divests the federal courts of power to issue divorce, alimony, and child custody decrees.” Ankenbrandt v. Richards, 504 U.S. 689, 703, 112 S.Ct. 2206, 119 L.Ed.2d 468 (1992). It is “very narrow” and does not “strip the federal courts of authority to hear cases arising from the domestic relations of persons unless they seek the granting or modification of a divorce or alimony decree ... or a child custody decree.” Williams v. Lambert, 46 F.3d 1275, 1283 (2d Cir.1995). Here, Plaintiff seeks only money damages, not the issuance or modification of a child custody decree. See generally Compl.; see also Dkt. No. 57 (“Response to Pavone and Jackson Motion”) at 5–6. “[T]herefore, the domestic relations exception has no bearing on these claims.” McKnight v. Middleton, 699 F.Supp.2d 507, 519 (E.D.N.Y.2010), aff'd, 434 F. App'x 32 (2d Cir.2011). 3 Moreover, even if the authorization was merely an extrajudicial, informal expression of Pavone's purely

personal approval that bore no relationship to his judicial role, Plaintiff could not demonstrate that Pavone acted under color of state law as required for § 1983 liability. See Oct. Order at 4–8. 4 The pagination corresponds to the page numbers assigned by ECF. 5 The Wrobleskis also seek an award of attorneys' fees pursuant to 42 U.S.C. § 1988. Wrobleski Mem. at 5–6.

“ Section 1988 permits the court, in its discretion, to award reasonable attorneys' fees to a ‘prevailing party’ in any action or proceeding brought to enforce the provisions of 42 U.S.C. § 1983.” Nelson v. Ulster Cnty., 789 F.Supp.2d 345, 358 (N.D.N.Y.2010) (citing 42 U.S.C. § 1988(b)). “Although § 1988 permits a court to award attorney's fees to a prevailing defendant, public policy dictates that a court should be hesitant to make such an award because of the chilling effect it might have on § 1983 plaintiffs-the ‘chosen instrument of Congress to vindicate a policy that Congress considered of the highest priority.’ “ Doehr v. DiGiovanni, 8 F.Supp.2d 172, 173 (D.Conn.1998) (quoting Christiansburg Garment Co. v. Equal Empl't Opportunity Comm'n, 434 U.S. 412, 418, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978)). “Accordingly, a prevailing defendant in a § 1983 action may only be awarded attorney's fees if the court finds that the plaintiff's claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.” Doehr, 8 F.Supp.2d at 173 (citing Oliveri v. Thompson, 803 F.2d 1265, 1272 (2d Cir.1986)). The Wrobleskis argue that Plaintiff's claim is frivolous, unreasonable, and without foundation. Wrobleski Mem. at 6. But in light of Plaintiff's pro se status, the gravity of the misconduct alleged in the Complaint, and the complexity of the color-of-state-law doctrine pursuant to which Plaintiff's claim against the Wrobleskis is dismissed, the Court declines to award attorneys' fees. Cf. Doehr, 8 F.Supp.2d at 173 (“The court finds that this case is not akin to the type of frivolous, groundless case in which a plaintiff disingenuously cloaks himself in the Civil Rights Act, and in which an award of attorney's fees to a defendant would be appropriate.”). Moreover, the Court is loath to deem Plaintiff's claim against the Wrobleskis sufficiently frivolous for an award of attorneys' fees despite previously permitting that claim to survive 28 U.S.C. § 1915(e) review. See Report–Rec. at 4, 8; Oct. Order at 11; cf. Doehr, 8 F.Supp.2d at 173 (“[G]iven that the Second Circuit stated in its opinion that plaintiff should be given the chance to have his claims heard on remand, this court finds that plaintiff's pursuit of those claims was not frivolous.”). 6 Even if the Entry of Default Judgment were not vacated, the Motion for Default Judgment would be denied.

Under Federal Rule of Civil Procedure 55(b)(1), the Clerk may enter a default judgment only where Plaintiff's “claim is for a sum certain or a sum that can be made certain by computation.” (emphases added). Here, Plaintiff seeks a $600,000 judgment, but, other than dividing that total into various categories of damages, provides no basis for this figure. See Mot. for Default J.; Dkt. No. 63–1 at 2, 56. This is a far cry from a sum certain. See Bellet v. City of Buffalo, No. 03–CV–00027, 2010 WL 3522224, at *3 (W.D.N.Y. Sept. 8, 2010) (“A claim does not become certain merely because the complaint or affidavit identifies a purported total.”).

7 Leave to amend should be denied if any amendment would be futile. See Foman v. Davis, 371 U.S. 178, 182,

83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Rivera v. Governor of N.Y., No. 02–7962, 2004 WL 569274, at *1 (2d Cir. Mar.23, 2004). The Court finds, in light of the deficiencies discussed supra and the extensive opportunity afforded Plaintiff to clarify his allegations in briefing following the Motions to dismiss and the October Order's provision of notice regarding those deficiencies, that any such amendment would be futile. Cf. Rother v. NYS Dep't of Corr. & Cmty. Supervision, 970 F.Supp.2d 78, 91 (N.D.N.Y.2013) (Kahn, J.) (noting that dismissal without leave to amend is often appropriate “[w]here a plaintiff has already been given notice of a claim's deficiencies and the opportunity to amend her complaint”). End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

Footnotes 1 To the extent that Plaintiff alleges that Defendant negligently or even recklessly disclosed Plaintiff's address

or medical records, that is not enough to overcome judicial immunity. Mireles, 502 U.S. at 11 (judicial immunity cannot be overcome “by allegations of bad faith or malice” or that an action was taken in err); Topolski, 2014 WL 2215761, at *3 (applying Mireles to court-appointed referees). End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

Footnotes 1 Plaintiff filed three documents in addition to his objections. On October 15, 2023, Plaintiff filed a “Legal Notice

and Demand Fiat Justitia, Ruat Coelum.” (Dkt. No. 10). On November 7, 2023, Plaintiff filed a document captioned “prayer to the court under the grace of God for abatement, damages, setoff, and redemption.” (Dkt.

No. 12). It is unclear what relief, if any, Plaintiff seeks through these documents. Accordingly, they are stricken

from the docket. On October 25, 2023, Plaintiff filed a document titled “Support for Summary Judgment.” (Dkt. No. 11). To the extent Plaintiff intends this document to be a motion for summary judgment under Federal Rule of Civil Procedure 56, it is premature, and is, in any event, denied as moot in light of the dismissal of the Amended Complaint. End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

Footnotes 1 The court must interpret pro se complaints to raise the strongest arguments they suggest. Soto v. Walker,

44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). 2 The language of that section is ambiguous because it suggests an intent to limit availability of IFP status to

prison inmates. See 28 U.S.C. § 1915(a)(1) (authorizing the commencement of an action without prepayment of fees “by a person who submits an affidavit that includes a statement of all assets such prisoner possesses”). The courts have construed that section, however, as making IFP status available to any litigant who can meet the governing financial criteria. Hayes v. United States, 71 Fed. Cl. 366, 367 (Fed. Cl. 2006); Fridman v. City of N.Y., 195 F. Supp. 2d 534, 536 n.1 (S.D.N.Y. 2002). 3 The Court notes that Section 1915(a)(1) does not set financial guideposts as standards for determining IFP

eligibility. Although Plaintiff's income appears to be above the federal poverty guidelines (Dkt. No. 7 at ¶ 2), based on his monthly expenses (id. at ¶ 6) and support contributions for his minor children (id. at ¶ 7), I find that he has established—albeit barely—that he is “unable” to pay the filing fee, or that paying the filing fee would pose a “serious hardship.” 4 Plaintiff is reminded that, although his amended IFP application has been granted, he is still required to pay

fees that he may incur in this action, including copying and/or witness fees. 5 Due to the nature of Plaintiff's Amended Complaint, it is difficult to precisely determine exactly which doctrine

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

court's decisions regarding custody, neglect, and visitation.”); Fernandez v. Turetsky, 12-CV-4092, 2014 WL

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

and a bullet point list under each heading. (Dkt. No. 6 at 5-6.) These pages do not contain factual allegations and instead appear to include legalese phrases that largely do not make sense. By way of example, under the heading naming Defendant Primo, Plaintiff alleges:

• Breach of Agreement • Securities fraud • Trespass of my estate • Neglect/failed to prevent • Violation of the hierarchy of law (Dkt. No. 6 at 5.) The list also includes a heading for Defendant Murphy. (Dkt. No. 6 at 6.) However, the Amended Complaint fails to allege factual allegations plausibly suggesting any action taken by Defendant Murphy and therefore fails to allege her personal involvement in any violations. 7 However, the undersigned notes that Plaintiff's claims against Defendant Merrick in her official capacity are

not barred by the Eleventh Amendment. Meyers v. Becker, 23-CV-0173, 2023 WL 3079611, at *4 (N.D.N.Y. Apr. 5, 2023) (Hummel, M.J.), report and recommendation adopted, 2023 WL 3073495 (N.D.N.Y. Apr. 25, 2023) (Hurd, J.). Notwithstanding that conclusion, I recommend that any claims against Defendant Merrick in her official capacity be dismissed because—in addition to the reasons set forth above—the Complaint fails to allege facts plausibly suggesting that Defendant Merrick's actions were pursuant to any policy or custom of Onondaga County. Official capacity suits are merely an alternative way to plead a claim against an entity of which an officer is an employee. Kentucky v. Graham, 473 U.S. 159, 165 (1985). “[A] governmental entity is liable under § 1983 only when the entity itself is a ‘moving force’ behind the deprivation.” Graham, 473 U.S. at 166 (quoting Polk Cnty. v. Dodson, 454 U.S. 312, 326 (1981)). In an official capacity suit against a municipal employee, a plaintiff must show that the acts were performed pursuant to a policy or custom. Patterson v. Cnty. of Oneida, 375 F.3d 206, 226 (2d Cir. 2004). 8 See also Carris v. First Student, Inc., 132 F. Supp. 3d 321, 340-41 n.1 (N.D.N.Y. 2015) (Suddaby, C.J.)

9 If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional

Footnotes 1 Under the Rooker–Feldman doctrine, cases “brought by [a] state-court loser[ ] complaining of injuries caused

by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments” are barred in federal courts, which lack subject-matter jurisdiction over such actions. Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005). End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

Footnotes 1 Further, the complaint fails to plead facts showing why the Court would have personal jurisdiction over any

of the defendants. See Fed. R. Civ. P. 8(a)(1) (requiring allegations showing that the court has jurisdiction); Sinoying Logistics Pte Ltd. v. Yi Da Xin Trading Corp., 619 F.3d 207, 213 (2d Cir. 2010) (where defendants have not appeared in a case, the court may dismiss a case sua sponte for lack of personal jurisdiction). 2 While the statute of limitations is an affirmative defense, the Court may consider it upon the filing of the

complaint if “it is clear from the face of the complaint, and matters of which the court may take judicial notice, that the plaintiff’s claims are barred as a matter of law.” Staehr v. Hartford Fin. Servs. Grp., 547 F.3d 406, 425 (2d Cir. 2008). Further, while the statute of limitations may be avoided where equitable tolling or other tolling doctrines apply, in this case the inapplicability of such doctrines is apparent because Ms. Chmura pleads no facts demonstrating that she was reasonably diligent in pursuing her claims and that extraordinary circ*mstances prevented her from filing her complaint within the limitations period. See Walker v. Jastremski, 430 F.3d 560, 564 (2d Cir. 2005). The facts alleged indicate not only that she knew of the cause of action but that she was actively litigating related claims in another forum at a time that is well beyond the statute of

limitations. Ms. Chmura asserts a “fraud upon the court” but pleads no facts alleging “fraudulent concealment

of the existence of a cause of action,” as required for equitable tolling on the basis of “fraud.” See Pearl v. City of Long Beach, 296 F.3d 76, 84 (2d Cir. 2002). End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

Footnotes 1 Plaintiff sometimes lists this defendant's last name as “Bowmen.” 2 Plaintiff writes using irregular capitalization. For readability, the Court uses standard capitalization when

quoting from the complaint. The Court otherwise quotes from the complaint verbatim and all grammar, spelling and punctuation are as in the original. End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

Footnotes 1 The Order also denied Plaintiff's Motion for Order to Show Cause seeking an order: (1) directing Defendants

to show cause “why a preliminary injunction should not issue” enjoining “them from denying the Plaintiff access to the Records in his Case, County Court Ind. No. 308C-2020 and falsifying documents in the past and in the future,” and (2) requesting Defendants temporarily be ordered to “restrain[ ] from commiting [sic] crimes including concealment of Records and falsifying documents.” (Order at 1-2 (citing OSC Motion, ECF. No. 4, and Pl.’s Support Aff., ECF No. 4-1).) The Court ruled on Plaintiff's OSC Motion to the extent it sought a temporary restraining order (“TRO”) and held in abeyance any determination regarding Plaintiff's request for a preliminary injunction pending its initial screening of Plaintiff's Complaint pursuant to 28 U.S.C. § 1915A. (See Order at 2 n.1.) 2 Notably, the Sentencing Transcript filed by Plaintiff as Exhibit 18 to his Complaint (see ECF No. 7-4 at 2)

reflects that the Court Reporter's sur-name is “Connors” rather than “Conner”. For consistency with Plaintiff's Complaint, the Court will use “Conner” in this Memorandum and Order. 3 The Court presumes familiarity with Plaintiff's underlying state court criminal action, but notes that according

to the information maintained by the New York State Office of Court Administration on its public website, in Suffolk County Court, Criminal Term, Case No. 00308C-2020, on July 18, 2022, Plaintiff was convicted by a jury on a multi-count indictment including Operating as a Major Trafficker, a class A-1 felony, and Conspiracy in the Second Degree, a class B felony. See https://iapps.courts.state.ny.us/webcrim (last visited on Sept. 16, 2022). In sum, Plaintiff challenges his arrest and conviction, asserting that he was illegally apprehended, and then convicted, based upon cellphone “ping data” collected without a warrant; he also maintains that evidence used against him at trial was illegally obtained via a warrantless search of his apartment. (See Sept. 23, 2022 Sent'g Hr'g Tr., ECF No. 7-4, at ECF pp. 81-87; see also Compl. at ECF pp. 16-17, 19.) 4 Although “[t]he doctrine of judicial immunity does not shield judges from claims for prospective declaratory

relief,” Krupp v. Todd, No. 14-CV-0525, 2014 WL 4165634, at *4 (N.D.N.Y. Aug. 19, 2014), “[a]bsolute judicial immunity bars declaratory judgment claims that are retrospective in nature in that they seek a declaration that a judge's past behavior has violated the Constitution.” Leathersich v. Cohen, No. 18-CV-6363, 2018 WL 3537073, at *4 (W.D.N.Y. July 23, 2018) (internal quotation omitted) (citing cases); see also Moore v. City

of N.Y., No. 12-CV-4206, 2012 WL 3704679, at *2 (E.D.N.Y. Aug. 27, 2012) (“Judicial immunity also bars ...

claims for retrospective declaratory relief.”). A review of the Complaint makes clear that it is targeted at Judge Collins's conduct in Plaintiff's concluded state court action. (See Compl., ECF No. 1, in toto.) Indeed, Plaintiff seeks not to vindicate some prospective right, but a declaration that Judge Collins's prior judicial actions were erroneous. Given that Plaintiff seeks retrospective relief, such claims are barred. Montesano v. New York, Nos. 05-CV-9574, 05-CV-10624, 2006 WL 944285, at *4 (S.D.N.Y. Apr. 12, 2006) (neither “injunctive nor declaratory relief is available to be used as a vehicle for disgruntled litigants to reverse adverse judgments”) (citing Huminski v. Corsones, 396 F.3d 53 (2d Cir. 2005)). 5 Although Plaintiff alleges Tropea is the Clerk of the Court, County Court of Suffolk County (see ECF No. 1 at 2),

the information maintained by the New York State Office of Court Administration on its public website reflects that Tropea is the Chief Clerk of that court. See https://ww2.nycourts.gov/courts/10jd/suffolk/county.shtml (last visited on June 16, 2023). 6 Similarly, given that Judge Collins is also a New York state employee, he too is shielded from liability in

his official capacity by the Eleventh Amendment. See Silvels v. New York, 81 F. App'x 361, 362 (2d Cir. 2003) (affirming dismissal of Section 1983 claims sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) on the grounds of judicial and Eleventh Amendment immunity). Moreover, given Conner's apparent employment by the New York State Office of Court Administration as an Official Senior Court Reporter, she too would be shieled from liability in her official capacity by the Eleventh Amendment. However, the Court need not reach that question for the reasons that follow. 7 Insofar as Plaintiff complains that the alleged transcript errors prejudice an appeal of his conviction, such facts

may form the basis of a proper Section 1983 claim at the appropriate time. A criminal defendant possesses a due process right to a “substantially accurate” transcript in a criminal proceeding. Argentieri v. Majerowicz, 158 F. App'x 306, 307 (2d Cir. 2005) (summary order). However, “[m]ore than an inaccurate transcript is necessary to state a claim, [ ] [and] a [p]laintiff must also show that the alleged inaccuracies adversely affected the outcome of her proceedings.” Wilson v. Richards, No. 14-CV-2459, 2014 WL 6682579, at *2 (S.D.N.Y. Nov. 25, 2014) (citing Tedford v. Hepting, 990 F.2d 745, 748 (3d Cir. 1993) (internal quotation marks omitted); also citing Argentieri, 158 F. App'x at 308 (affirming summary judgment for defendant because plaintiff was not “deprived in any way of his access to courts or right to an effective appeal”)). Any such claim is premature at this juncture given that the appeal filed by Plaintiff is not yet perfected. See People v. Braithwaite, No. 2022-09001, May 5, 2023 Decision and Order (N.Y. App. Div., 2d Dep't 2023) (granting Braithwaite leave to prosecute the appeal as a poor person, assigning appellate counsel, and granting extension to perfect appeal). In turn, any related claim of prejudice is currently speculative, making it implausible. See Burrell, 558 F. Supp. at 92 (“[I]f a state official intentionally alters a transcript in a way that prejudices a defendant's appeal, the due process clause of the fourteenth amendment might be violated.... To prove such a violation plaintiff would have to show ... the existence of intentional tampering; then, he would have to prove the alleged errors and omissions in the trial transcript prejudice his statutory right to appeal.” (citations omitted)); Godfrey v. Irvin, 871 F. Supp. 577, 584 (W.D.N.Y. 1994) (“In order to demonstrate denial of a fair appeal, [plaintiff] must show prejudice resulting from the missing or incomplete transcript.”). Thus, any substantive due process claim is not plausible given the absence of any allegation that Plaintiff suffered “some tangible harm.” Curro v. Watson, 884 F. Supp. 708, 720 (E.D.N.Y. 1995), aff'd, 100 F.3d 942 (2d Cir. 1996); see also Collins, 438 F. Supp. 2d 399, 415–16 (2d Cir. 2006) (plaintiff alleging violation of right to access to the courts must allege an “actual injury”). Upon careful review of the Complaint, Plaintiff has not alleged any tangible harm. (See Compl., in toto.) Plaintiff does not allege that he was not successful in his Article 78 proceedings. Even if he was unsuccessful in those proceedings, he does not allege that any such failure stemmed from the transcriptions. Compare Collins, 438 F. Supp. 2d at 417 (prisoner adequately alleged tangible harm where he alleged that his Article 78 proceeding was dismissed when prison officials failed to provide him with necessary

copies of documents). 8 Plaintiff's allegation that the transcript was deliberately tampered with does not save his procedural due

process claim because the state provides adequate post-deprivation remedies. See Curro, 884 F. Supp. at 717–19 (prisoner who alleged that court reporters deliberately altered the transcript of his criminal trial did not state procedural due process claim because New York provides a procedure for challenging inaccuracies in trial transcripts). End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

Footnotes 1 See Doc. #18. 2 Id. at 3 (¶¶ 6–7). 3 Id. at 8 (¶¶ 20, 22). 4 Ibid. (¶ 25).

5 Id. at 8–11 (¶¶ 25–30, 34).

6 Id. at 10 (¶ 33). Leftridge does not specify the name of the Assistant Attorney General. 7 Id. at 39 (¶ 153). 8 Id. at 11 (¶ 35). 9 Id. at 12–13 (¶¶ 41–42). 10 Id. at 12 (¶¶ 38–39). 11 Ibid. (¶ 40). Leftridge does not specify the name of the Hartford Interstate Support Enforcement Supervisor. 12 Id. at 13 (¶ 43). 13 Id. at 12–15 (¶¶ 38–50). 14 Id. at 16 (¶¶ 55–57). 15 Id. at 18 (¶ 64). 16 Ibid. (¶ 64). 17 Id. at 21–22 (¶¶ 81–85). 18 Id. at 22 (¶¶ 87–88). 19 Id. at 25–27 (¶¶ 98, 102–03), 36 (¶ 141). 20 Id. at 56 (¶ 219). 21 Id. at 28–29 (¶¶ 109, 111). 22 Id. at 38 (¶ 150). 23 Id. at 29–30 (¶¶ 113, 118), 32 (¶ 124). 24 Id. at 32–36 (¶¶ 125–31, 137–39), 50–55 (¶¶ 191–204, 210, 212–17). 25 Id. at 34 (¶ 133), 40 (¶¶ 156–58), 53–54 (¶¶ 205, 207, 211), 56 (¶ 218). 26 Id. at 34 (¶ 132). 27 Id. at 34–35 (¶ 134), 37 (¶ 144). 28 Id. at 41–42 (¶¶ 162–64). 29 Id. at 44–45 (¶¶ 170–72). 30 Id. at 45 (¶¶ 173–74). 31 Id. at 47–48 (¶ 181). 32 Id. at 48 (¶ 182).

33 Id. at 1; see id. at 3–7 (¶¶ 9–19) (defendants’ full names and positions); id. at 61–94 (¶¶ 237–361) (causes

of action). 34 Id. at 1. 35 Id. at 61 (¶¶ 237–39), 75–80 (¶¶ 285–304). 36 Id. at 61 (¶¶ 240–42). 37 Id. at 61–62 (¶¶ 243–45). 38 Id. at 62–63 (¶¶ 246–48). 39 Id. at 63–64 (¶¶ 249–51). 40 Id. at 64–67 (¶¶ 252–54). 41 Id. at 67–68 (¶¶ 255–57). 42 Id. at 68 (¶¶ 258–60). 43 Id. at 68–69 (¶¶ 261–63). 44 Id. at 69–70 (¶¶ 264–66), 72–73 (¶¶ 273–75). Count Ten also alleges that the defendants violated the

ADA, the Civil Rights Act of 1964, and the Connecticut Fair Employment Practices Act—allegations that are duplicative of the allegations in Counts Four and Five. 45 Id. at 70–71 (¶¶ 267–69). 46 Id. at 71–72 (¶¶ 270–72). 47 Id. at 73 (¶¶ 276–78). 48 Id. at 73–74 (¶¶ 279–81). 49 Id. at 74–75 (¶¶ 282–84). 50 Id. at 79–80 (¶¶ 297–304). Count Eighteen also alleges that the defendants deprived him of his Fourteenth

Amendment due process rights as enforceable under 42 U.S.C. § 1983—an allegation that is duplicative of the allegations in Counts One, Three, and Seventeen. 51 Id. at 80–82 (¶¶ 305–12). 52 Id. at 82–83 (¶¶ 313–19). 53 Id. at 83–89 (¶¶ 320–40). Count Twenty-One also mentions policies of three additional agencies—the

Maryland Department of Human Services, Montgomery Count Office; the Office of the Connecticut Attorney General; and the Connecticut Interstate Government UIFSA Department—but the complaint does not name these agencies as defendants. See ibid. 54 Id. at 89–91 (¶¶ 341–46). 55 Id. at 91 (¶¶ 347–49). 56 Id. at 91–92 (¶¶ 350–54).

57 Id. at 92–93 (¶¶ 355–57).

58 Id. at 93–94 (¶¶ 358–61). 59 Id. at 94–96. 60 Doc. #81; Doc. #123. 61 Unless otherwise indicated, this order omits internal quotation marks, alterations, citations, and footnotes in

text quoted from court decisions. 62 Doc. #18 at 95–96. 63 Id. at 95 (¶ 8). 64 Doc. #81-1 at 8–9; Doc. #123-1 at 15–16. 65 Doc. #81-1 at 8–9. 66 To the extent Leftridge alleges that the defendants violated Title III of the ADA, Leftridge fails to state a claim

because “Title III is not applicable to public entities.” Morales v. New York, 22 F. Supp. 3d 256, 266–67 (S.D.N.Y. 2014) (citing cases). 67 Doc. #18 at 63–64 (¶ 250). Leftridge does not explain what acts the defendants took that violate the RA, but

the Court takes them to be the same as those acts that Leftridge alleges violated the ADA. Cf. Paystrup v. Benson, 2015 WL 506682, at *11 (D. Utah 2015) (assuming plaintiff's RA claim to be “based on the same actions as the ADA claims” where it was unclear which of defendants’ actions were alleged to violate the RA). 68 Doc. #81 at 10–22, Doc. #123 at 9–15, 17–22. 69 Doc. #123 at 11–14. 70 Doc. #123-3 at 1–2 (¶¶ 1–2, 5). 71 See Doc. #18-1 at 1, 7; Doc. #137 at 9 (Leftridge's opposition to defendants’ motion to dismiss stating that

Footnotes 1 Plaintiff also seeks an order “restrain[ing] the [D]efendants from any further state court action until the federal

court dispute is adjudicated. Plaintiff also requests the court to vacate any state court judgments or orders in the interest of justice,” (DE 8 at 21.) 2 The exhibits are largely excerpts from law treatises, copies of cases, and state and federal statutory laws,

well as several reports prepared on Plaintiff's behalf concerning the mortgage at issue in the underlying state case. See DE 1-1. 3 Plaintiff's Section 1983 claims against NYS are frivolous for the additional reason that New York State is not

a “person” within the meaning of Section 1983. Will v. Mich. Dep't of State Police, 491 U.S. 58 (1989) (State is not a “person” for the purpose of § 1983 claims); Zuckerman v. Appellate Div., Second Dep't Supreme Court, 421 F.2d 625, 626 (2d Cir. 1970) (Court not a “person” within the meaning of 42 U.S.C. § 1983). 4 Given that the Eleventh Amendment and judicial immunity divest this Court of subject matter jurisdiction, the

Footnotes 1 Since Plaintiff has acknowledged there are no pending state court proceedings, remand does not appear to

be an option. (Dkt. No. 1 at 40.) 2 Plaintiff also submitted an application for leave to proceed in forma pauperis (Dkt. No. 2), which was granted

by the Court in its June 13, 2017, Order. (Dkt. No. 6.) 3 Page references to documents identified by docket number are to the numbers assigned by the CM/ECF

docketing system maintained by the Clerk's Office.

4 Plaintiff's complaint also contains factual allegations that his minor children were subjected to repeated

sexual, mental, and emotional abuse. (Dkt. No. 1-2 at 15.) Those allegations will be considered solely to the extent, if at all, they are relevant to claims asserted by Plaintiff solely on his own behalf. 5 The applicability of the statutes cited by Plaintiff will be addressed only to the extent, if at all, they are relevant

to claims asserted by him solely on his own behalf. 6 The only effect of the Court's ninety-day stay Order was to place the Court's initial review of the lawsuit on

hold while Plaintiff pursued legal representation for his minor children. (Dkt. No. 6 at 6.) The stay did not, as Plaintiff appears to claim in his motion papers, have any impact on the ability of those individuals and entities whom Plaintiff has named as Defendants herein to take action or refrain from taking action, or upon the jurisdiction, orders, or other actions of the New York State courts. (See Dkt. Nos. 8-3 at 3; 9-1 at ¶ 1.) Plaintiff's apparent attempted service of summonses and papers to which Defendants would be required to respond was premature and unauthorized. 7 Plaintiff, who describes himself as an American Patriot, has also filed as a part of his motion for a preliminary

injunction, a “Declaration, Proclamation and Reclamation to his natural rights as Son of the Revolution & The Original Republic of 1789,” in which he describes his ancestors as having included soldiers in the French and Indian War, the American Revolution, and the Civil War. (Dkt. No. 8-5.) 8 Plaintiff's notice of removal also appears to be untimely since it was filed more than thirty-days after he

received the petitions in the contempt and custody/visitation proceedings. See 28 U.S.C. § 1446(b). However, because the thirty-day requirement, while mandatory, is procedural rather than jurisdictional, and can be waived by the plaintiff/petitioner in the state court action, the Court finds that Plaintiff's failure to file a timely notice of removal does not provide grounds for sua sponte dismissal on initial review. See Flood v. CSX Transp., Inc., No. 11-CV-162S (WMS), 2012 WL 464189, at * 2 (W.D.N.Y. Feb. 13, 2012) (while the thirty- day time limit under § 1446(b) is mandatory, failure to adhere to it constitutes a procedural rather than a jurisdictional defect) (citing Phoenix Global Ventures, LLC v. Phoenix Hotel Assocs., Ltd., 422 F.3d 72, 75 (2d Cir. 2005)). 9 In White v. Wellington, 627 F.2d 582, 585 n.4 (2d Cir. 1980), the Second Circuit opined that the statutory

language would also allow removal by federal officials. 10 Copies of all unpublished decisions cited herein will be provided to Plaintiff in accordance with LeBron v.

Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam). 11 The papers do not provide the Court with sufficient information to determine on initial review whether the

Younger abstention, (see Younger v. Harris, 401 U.S. 37, 53-54 (1971)), or Rooker Feldman doctrines apply to Plaintiff's filings. See Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983) (federal courts may not sit in direct review of state court judgments unless directly authorized by Congress). 12 There is no private right of action under 42 U.S.C. § 3631 (see DeSouza v. Taiman, No. 3:16-cv-00490

(MPS), 2017 WL 3444672, at *6 (D. Conn. Aug. 10, 2017) (collecting cases)); 42 U.S.C. § 14141 (see Miller v. Carpinello, No. 06 CV 12940 (LAP), 2007 WL 4207282, at *5 (S.D.N.Y. Nov. 20, 2007)); 18 U.S.C. § 245 (see, Gunter v. Long Island Power Auth./Keyspan, No. 08 CV 498 (RRM) (LB), 2011 WL 1225791, at *11 (E.D.N.Y. Feb. 15, 2011)); or 18 U.S.C. § 2258. See Davis v. City of New Haven, No. 3:11cv1829 (JBA), 2014 WL 1315660, at *5-6 (D. Con. March 30, 2014).

13 In his complaint, Plaintiff identifies the abuser of his children as N. Cruz. (Dkt. No. 1-2 at 14-16.) However,

because Plaintiff never specifically identifies the alleged abuser as his estranged wife, Nicole Cruz, the Court is uncertain as to whether that is the case. 14 The undersigned, not Judge Stewart, is the U.S. Magistrate Judge to whom the case has been assigned. 15 A plaintiff is required to allege state action on the part of the defendants in his complaint; and where he fails to

do so, a court may dismiss an action under § 1915(e). See O'Neil v. Bebee, No. 5:09-CV-1133 (GTS/DEP), 2010 WL 502948, at *5 (N.D.N.Y. Feb. 10, 2010). 16 Plaintiff has also alleged a conspiracy under 42 U.S.C. § 1985(3) and a claim under 42 U.S.C. § 1986. (Dkt.

No. 1-2 at 1.) However, under § 1985(3), “the conspiracy must [ ] be motivated by some racial or perhaps otherwise class-based, invidious discriminatory animus behind the conspirators' action.” Mian v. Donaldson, Lufkin & Jenrette Securities, Corp., 7 F.3d 1085, 1088 (2d Cir. 2d Cir. 2000), overruled on other grounds by Gonzaga Univ. v. Doe, 536 U.S. 273, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002). As noted above, Plaintiff has been identified as White, and there are no facts in any of Plaintiff's submissions suggesting any otherwise class-based animus. When a claim under 42 U.S.C. § 1985(3) fails, a claim under 42 U.S.C. § 1986 fails as well. See Brown v. City of Oneonta, 221 F.3d 329, 341 (2d Cir. 2000). 17 The Court has not included Defendants Lyn or Lynch, Harper, Brown, Corcoran, or Rowe on the list of those

against whom dismissal is recommended for failure by Plaintiff to include any allegations of wrongdoing by them in the complaint because of the allegations against them in his TRO and preliminary injunction papers. (Dkt. No. 8-7 at 8.) The Court has recommended dismissal against school board members and administrators at the Cincinnatus School District and Norwich Central School for lack of factual allegations against them in the complaint. Because it appears that they have been named as Defendants with respect to claims involving Plaintiff's minor children, which should not be addressed by the District Court without the interests of the children being properly represented, the Court would recommend dismissal even if Plaintiff had included allegations to that effect. 18 While Plaintiff did not include specific factual allegations against Judge Campbell in his complaint, he did

contend in his habeas corpus petition that Judge Campbell dismissed all of his Cortland County Family Court petitions and “apparently” placed a conditional discharge against Plaintiff. (Dkt. No. 1 at 41-42.) 19 Plaintiff also alleges that Terry Kuhn's buddy Frank Revoir was involved in the conspiracy. (Dkt. No. 1-2 at

11-2.) That is the sole mention of Revoir in the complaint. He has not been identified as a state actor and the wholly conclusory allegation that he was part of a conspiracy is insufficient to state a claim against him under § 1983. See Dwares, 985 F.2d at 100. Therefore the Court recommends dismissal of the complaint against Revoir and that the dismissal be with prejudice since the allegations in the complaint give no indication Plaintiff could state a claim against him. 20 As noted above, Plaintiff has alleged that the OCFS was part of a conspiracy to cover up sexual abuse

against Plaintiff's minor children by a special education teacher which the Court has recommended be dismissed. There are no allegations in Plaintiff's complaint suggesting that Poole played any role in the alleged conspiracy. 21 A plaintiff bears the burden of establishing subject matter jurisdiction over his claims, including citing the

relevant federal statute. Cherry v. New York City Dept. of Corr., 698 Fed.Appx. 27, 2017 WL 4457140 (Mem), at *1 (2d Cir. Oct. 5, 2017.) 22 The Court intends for its recommendation for dismissal with prejudice to apply solely to Plaintiff and to have

no impact on pursuit of the minor children's claims.

23 The Court has refrained from considering the legal rights the minor children may have in connection with

the alleged kidnaping. 24 If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three

additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. 6(a)(1)(C). End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works. End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

Footnotes 1 D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). 2 As was previously indicated, the sole named defendant in this case is the State of New York. In the event

that plaintiff intended to name the judges identified in his causes of action as defendants, his claims against them would be precluded. “It is well settled that judges are absolutely immune from suit for any actions taken within the scope of their judicial responsibilities.” DuQuin v. Kolbert, 320 F. Supp. 2d 39, 40-41 (W.D.N.Y. 2004) (citing Mireles v. Waco, 502 U.S. 9, 10 (1991)); see also Young v. Selsky, 41 F.3d 47, 51 (2d Cir. 1994). This is true however erroneous an act may have been, and however injurious its consequences were to the plaintiff. Young, 41 F.3d at 51. It should be noted, however, that “a judge is immune only for actions performed in his judicial capacity.” DuQuin, 320 F. Supp. 2d at 41. 3 The language of that section is ambiguous, in that it suggests an intent to limit availability of IFP status to

governing financial criteria. Hayes v. United States, 71 Fed. Cl. 366, 367 (Fed. Cl. 2006); see also Fridman

v. City of N.Y., 195 F. Supp. 2d 534, 536 n.1 (S.D.N.Y. 2002). 4 Plaintiff is reminded that, although his IFP application has been granted, he will still be required to pay fees

that he incurs in this action, including copying and/or witness fees. 5 “[A]lthough the domestic relations exception originated in the context of diversity cases, some courts have

applied the exception in cases based upon federal question jurisdiction since the policy considerations which underlie the domestic relations exception may apply with equal force in cases arising under the court's federal question jurisdiction.” Thomas, 814 F. Supp. at 1146 (citations omitted). 6 If you are proceeding pro se and are served with this order, report, and recommendation by mail, three

additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the order, report, and recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C). End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

Footnotes 1 The Court understands this to reference the Suffolk County Child Support Enforcement Bureau. 2 Excerpts from the complaint are reproduced here exactly as they appear in the original. Errors in spelling,

punctuation, and grammar have not been corrected or noted. 3 It also appears that plaintiff is challenging state court judgments rendered in April and May 2022, well before

the complaint was filed in this Court on June 16, 2022. Thus, the Rooker-Feldman doctrine would also require this Court to decline plaintiff's invitation to review and reject those state court judgments. Stumpf, 2022 WL 2062613, at 4 n. 4 (“The Rooker-Feldman doctrine bars federal courts from exercising jurisdiction over claims brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” (internal quotation marks omitted)); Fernandez v. Turetsky, No. 12-CV-4092 (SLT) (MDG), 2014 WL 5823116, at *4 (E.D.N.Y. Nov. 7, 2014), aff'd, 645 F. App'x 103 (2d Cir. 2016) (“Courts have repeatedly invoked the [Rooker-Feldman] doctrine in cases, like the one currently before the Court, in which plaintiffs challenge family court decrees setting child support arrears.”) (collecting cases). End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

Footnotes 1 Citations to Plaintiff's submissions will refer to the pagination generated by CM/ECF, the Court's electronic

filing system. Unless otherwise indicated, excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected. 2 This matter was directly assigned to this Court by text order, see Dkt. No. 4, as deemed related to Dudley

v. Burgos et al., No. 5:24-CV-0223 (BKS/TWD), another action commenced by Plaintiff and assigned to this Court. The Court also takes judicial notice of a third action currently pending in this district, Dudley v. Hochul et al., No. 5:24-CV-0048 (DNH/ML), which Plaintiff commenced by filing a complaint on January 11, 2024. 3 Alternatively, “in the event the underlying family court proceedings are pending, such claims are likely barred

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

4 Although Plaintiff's application to proceed IFP has been granted, Plaintiff will still be required to pay fees that

he may incur in the future regarding this action, including, but not limited to, copying and/or witness fees. 5 If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three

additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Report-Recommendation and Order was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C). End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

Footnotes 1 In its recitation of the facts, the Third Department noted that the Family Court “declined to issue the order to

show cause, finding that [Plaintiff] failed to file timely written objections to the three [child support] orders ... and, as to the money judgment, [Plaintiff] failed to establish a reasonable excuse for his default.” Bowman, 152 A.D. 3d at 899. End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

Footnotes 1 The Court therefore takes judicial notice of the Family Court orders and decisions referenced in the Complaint.

Trombley v. O'Neill, 929 F. Supp. 2d 81, 103 (N.D.N.Y. 2013) (taking judicial notice of custody order of the Family Court); Villanueva v. City of New York, 2010 WL 1654162, at *5 (S.D.N.Y. Apr. 14, 2010) (“[W]e consider the court orders and hearing transcripts from the underlying Family Court proceedings....”). 2 While the Supreme Court in Blessing did not foreclose every section 1983 claim predicated upon Title IV-D,

it emphasized that a potential plaintiff must identify a particularized portion of the statute and establish that it did in fact create individually enforceable rights. As an example, the Court highlighted the potential situation where the State did collect support payments but then failed to pass through a portion of the payment to the party entitled to it by § 657(b)(1) of the Act. Id. at 345-46. 3 Plaintiff presented this argument by way of an ex parte order to show cause motion after a default judgment

had already been entered. 4 Plaintiff also makes a state law claim that, under the Family Court Act, a cap of five hundred dollars should

have been placed upon any child-support order based upon his financial condition. Compl. at ¶ 56 (citing Family Court Act § 413(1)(g)). 5 If you are proceeding pro se and are served with this Order by mail, three additional days will be added to

Footnotes 1 Notably, insofar as Plaintiff seeks to challenge the judgment of contempt entered against him for failing to

pay child support, such claims fall squarely within the scope of abstention. See, e.g., Juidice v. Vail, 430 U.S. 327, 339, 97 S. Ct. 1211, 1219, 51 L. Ed. 2d 376 (1977) (holding that Younger required the district court to abstain in an action that sought to challenge the statutory contempt procedures in New York); see also Heck v. Humphrey, 512 U.S. 477, 486, 114 S. Ct. 2364, 2372, 129 L. Ed. 2d 383 (1994). Moreover, New York courts provide process for individuals who wish to challenge their contempt proceedings. See N.Y. C.P.L.R. § 7001; People ex rel. Foote v. Lorey, 28 A.D.3d 917, 918, 813 N.Y.S.2d 798 (3d Dept. 2006) (addressing a petition for a writ of habeas corpus filed pursuant to N.Y. C.P.L. Article 70 challenging a family court order of contempt). Thus, Plaintiff has an adequate avenue for review of the contempt order in state court. 2 Given that this Court lacks subject matter jurisdiction, it need not address Plaintiff's Section 1983, 1985, and

1986 claims. However, because a Section 1983 claim requires a plaintiff to “allege that (1) the challenged conduct was attributable at least in part to a person who was acting under color of state law and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States”, Rae v. County of Suffolk, 693 F. Supp. 2d 217, 223 (E.D.N.Y. 2010) (internal quotation marks and citation omitted), his Section 1983 claims would fail as a matter of law because Lippman, Tomczyk, and Friedman are not state actors and Plaintiff has not alleged a plausible conspiracy claim. Similarly, Plaintiff's Section 1985 and 1986 claims would also fail. Section 1985 requires: “(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.” Robinson v. Allstate Ins. Co., 508 F. App'x 7, 9 (2d Cir. 2013) (internal quotation marks and citation omitted); see also 42 U.S.C. § 1985(2)-(3). A claim for conspiracy under Section 1985 “must also be motivated by some racial or perhaps otherwise class-based, invidious discriminatory animus.” Robinson, 508 F. App'x at 9 (internal quotation marks and citation omitted). Because Plaintiff does not allege he is a member of a protected class or that he was a victim of class-based, invidiously discriminatory animus, his Section 1985 claim is implausible. A Section 1986 claim is premised upon the validity of a claim under Section 1985. Graham v. Henderson, 89 F.3d 75, 82 (2d Cir. 1996) (dismissing Section 1986 claims because they are contingent upon valid Section 1985 claims). Accordingly, Plaintiff's Section 1986 claim is implausible. Asensio v. Roberts, 19-CV-3384, 2019 WL 1877386, *3 n.2 (S.D.N. Y Apr. 26, 2019) (“And, if Plaintiff cannot allege sufficient facts to state a § 1985 claim, he cannot state a related claim under 42 U.S.C. § 1986.”). 3 Plaintiff's RICO claims would also fail. To bring a RICO claim, a plaintiff must allege “(1) that the defendant

(2) through the commission of two or more acts (3) constituting a ‘pattern’ (4) of ‘racketeering activity’ (5) directly or indirectly invests in, or maintains an interest in, or participates in (6) an ‘enterprise’ (7) the activities of which affect interstate or foreign commerce.” See Moss v. Morgan Stanley Inc., 719 F.2d 5, 17 (2d Cir. 1983) quoting 18 U.S.C. § 1962. As is readily apparent, the Complaint is silent, for example, as to how

Defendants' activities in the underlying matrimonial and child support enforcement action in Suffolk County affected interstate or foreign commerce. End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works. End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

Footnotes 1 Amato was terminated as party plaintiff in the related action by Order entered August 7, 2019. See Orr v.

McGinty, 1:17-cv-1280 (GLS/TWD), ECF Dkt. No. 73. The Court assumes familiarity with the related case. 2 Page references to documents identified by docket number refer to the numbers assigned by the CM/ECF

docketing system maintained by the Clerk's Office. Unless otherwise indicated, excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected. 3 Plaintiff explains the book “talks about the ongoing abuse of Anthony McGinty and his ongoing abuse to my

family for exposing him. I have been publicly outspoken long before he was put on my case in 2016. I've been exposing him since 2014 and my best selling book was published in 2018. He refuses to recuse from this case which I orally explained pre trial in 2019 that I would not only never receive a fair trial but that having to come before him after the tremendous harm he caused my son....” (Dkt. No. 6 at 14.) 4 Plaintiff appears to be referring to Defendant, along with “Child Attorney Amy Ingram and opposing Counsel

Andy Gilday.” (Dkt. No. 6 at 11.) The Court notes Amy Ingram was named as a defendant in the related case and all claims asserted against her were dismissed with prejudice. See Orr v. McGinty, No. 1:17-cv-1280 (GLS/TWD), ECF Dkt. No. 47 at 13. The Court takes judicial notice that Amato, along with others, also filed suit against Judge McGinty, Amy Ingram, and Attorney Andrew Gilday (for his role as assigned counsel to Patrick Beesmer, C.A.B.’s father), Beesmer, and another individual in a previous action, also captioned Amato v. McGinty, 1:17-cv-00593 (MAD/ATB), ECF Dkt. No. 1. In that case, although Amato paid the filing fee, United States Magistrate Judge Baxter recommended, inter alia, that Amato's Section 1983 claims against Judge McGinty be dismissed with prejudice as barred by judicial immunity. See id., ECF Dkt. No. 11. United States District Judge D'Agostino adopted the report-recommendation in its entirety and judgment was entered accordingly on September 15, 2017. See id. at ECF Dkt. Nos. 19, 20. 5 However, and contrary to Plaintiff's assertion, in the related action she was not afforded the “right to replead

and add current ongoing violations” rather, Amato's Section 1983 claims against Judge McGinty were dismissed with prejudice and her Title II ADA claims were dismissed for failure to state a claim upon which relief may be granted. Orr v. McGinty, 1:17-CV-01280 (GLS/TWD), ECF Dkt. Nos. 47, 74. 6 Plaintiff also seeks attorneys fees pursuant to 42 U.S.C. § 1988 and the Equal Access to Justice Act. (Dkt.

No. 6 at 28.) However, as she was informed in the related action, pro se plaintiffs are not entitled to such fees. Orr v. McGinty, No. 1:17-cv-01280, ECF Dkt. No. 47 at 3 n.6 (citing SEC v. Price Waterhouse, 41 F.3d 805, 808 (2d Cir. 1994)). 7 Judicial immunity shields judges from suit to the extent that they are sued in their individual capacities. See

Ying Jing Gan v. City of N.Y., 996 F.2d 522, 529 (2d Cir. 1993); Martinez v. Queens Cty. Dist. Attorney, No.

12-CV-06262, 2014 WL 1011054, at *8 n. 8 (E.D.N.Y. Mar. 17, 2014), aff'd, 596 F. App'x 10 (2d Cir. 2015);

McKnight v. Middleton, 699 F.Supp.2d 507, 521-25 (E.D.N.Y. 2010), aff'd, 434 F. App'x 32 (2d Cir. 2011). The Eleventh Amendment, on the other hand, shields judges from suit to the extent that they are sued in their official capacities. See Ying Jing Gan, 996 F.2d at 529 (“To the extent that ... a claim is asserted against the state official in his official capacity, he may assert the state's Eleventh Amendment immunity against suit.”). 8 Moreover, “[i]t is axiomatic that ‘Title VII does not impose liability on individuals.’ ” Hamlett v. City of

Binghamton, No. 3:20-CV-880 (GLS/ML), 2021 WL 3723091, at *2 (N.D.N.Y. Aug. 23, 2021) (quoting Lore v. City of Syracuse, 670 F.3d 127, 169 (2d Cir. 2012) (citations omitted)); see also Golden v. Syracuse Reg'l Airport Auth., No. 5:20-CV-1566 (MAD/TWD), 2021 WL 485731, at *1 (N.D.N.Y. Feb. 10, 2021) (“[I]ndividuals are not subject to liability under Title VII.”) (quotation marks and citation omitted). 9 The Court notes judicial immunity also extends to Plaintiff's ADA claims for damages. See Orr v. McGinty,

No. 1:17-cv-01280, Dkt. No. 47 at 5 (citing Brooks v. Onondaga Cty. Dep't of Children & Family Servs., 5:17- CV-1186, 2018 WL 2108282, at *4 (N.D.N.Y. Apr. 9, 2018) (collecting cases)). 10 As observed in the related case, “It is questionable whether defendants, even when sued in their official

capacities, are public entities.” Orr v. McGinty, No. 1:17-cv-01280, Dkt. No. 74 at 4 n.4 (citing Santiago v. Garcia, 70 F. Supp. 2d 84, 89 (D. P.R. 1999) (holding state court judge sued in official capacity was not “public entity” under Title II); but see Shollenberger v. N.Y. State Unified Court Sys., 18 CV 9736, 2019 WL 2717211, at *5 (S.D.N.Y. June 28, 2019) (allowing ADA claims seeking prospective injunctive relief to proceed against Chief Judge of the State of New York and Chief Administrator of the New York State Unified Court System because “a plaintiff need only allege the defendant[s] ha[ve] responsibility for the alleged conduct and the ability to redress the alleged violations”)). 11 District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983) and Rooker v. Fidelity Trust Co., 263

U.S. 413, 414-17 (1923). 12 Younger v. Harris, 401 U.S. 37 (1971). 13 At this juncture, the Court expresses no opinion on the sufficiency of any such claim. 14 If the District Court adopts this Report-Recommendation, and if Plaintiff chooses to file a second amended

complaint, the pleading must comply with Rules 8 and 10 of the Federal Rules. The revised pleading will replace the amended complaint, and must be a wholly integrated and complete pleading that does not rely upon or incorporate by reference any pleading or document previously filed with the Court. See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (“It is well established that an amended complaint ordinarily supersedes the original and renders it of no legal effect.”). The revised pleading should not attempt to resurrect any claims dismissed with prejudice in this action and/or claims brought or could have been brought in the related case. See Lopez v. Jet Blue Airways, No. 12-CV-0057, 2012 WL 213831, at *2 (E.D.N.Y. Jan. 24, 2012) (“Under the doctrine of res judicata, once a final judgment has been entered on the merits of a case, that judgment will bar any subsequent litigation by the same parties or those in privity with them concerning the transaction, or series of connected transactions, out of which the [first] action arose.”). 15 While not entirely clear to the Court, it appears this “confidential” address differs from Plaintiff's residence,

while the PO Box on file is the business address for Plaintiff's “home office” Punished 4 Protecting. ( See Dkt. No. 16.) 16 Plaintiff should note that although her IFP application has been granted, she will still be required to pay fees

that she may incur in this action, including copying and/or witness fees.

17 If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three

Footnotes 1 The following recitation of facts is drawn from the Complaint, which the Court accepts as true for purposes

of initial review. See, e.g., LaTouche v. Rockland County, No. 22-CV-1437 (LTS), 2022 WL 953111, at *1 (S.D.N.Y. Mar. 29, 2022); Walker v. City of New York, No. 20-CV-5240 (PKC) (LB), 2021 WL 1838277, at *1 n.1 (E.D.N.Y. May 7, 2021). 2 Unless otherwise indicated, in quoting cases, all alterations, internal quotation marks, emphases, footnotes,

and citations are omitted. See, e.g., Sczepanski v. Saul, 946 F.3d 152, 157 n.4 (2d Cir. 2020). 3 Plaintiff does not explain or distinguish which of her six causes of action are advanced under 42 U.S.C. §

1983, and which are advanced under 42 U.S.C. § 1985. (See generally Dkt. No. 1 at 9-31.) The undersigned

accordingly considers whether any of Plaintiff's six causes of action state a claim for relief under 42 U.S.C.

§ 1983. See Sealed Plaintiff, 537 F.3d at 191. 4 Plaintiff does not explain or distinguish which of her six causes of action are advanced under 42 U.S.C. §

1983, and which are advanced under 42 U.S.C. § 1985. (See generally Dkt. No. 1 at 9-31.) The undersigned accordingly considers whether any of Plaintiff's six causes of action state a claim for relief under 42 U.S.C. § 1985. See Sealed Plaintiff, 537 F.3d at 191. 5 The undersigned notes that, nested within Plaintiff's third cause of action, she purports to assert a “civil rights

action brought pursuant to Title VII of the Civil Rights Act of 1964.” (Dkt. No. 1 at 4, 14.) That claim fails, however, because Plaintiff did not allege she is or was an employee of Dr. O'Connor, and she did not allege any employment discrimination. See, e.g., Amato v. McGinty, No. 1:21-CV-00860 (GLS) (TWD), 2022 WL 226798, at *8 (N.D.N.Y. Jan. 26, 2022) (dismissing plaintiff's Title VII claim as frivolous because she did not “allege employment discrimination or that she is or was an employee of Judge McGinty” ) (collecting cases). 6 If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three

Footnotes 1 The court must interpret pro se complaints to raise the strongest arguments they suggest. Soto v. Walker,

pauperis status to prison inmates. See 28 U.S.C. § 1915(a)(1) (authorizing the commencement of an action without prepayment of fees “by a person who submits an affidavit that includes a statement of all assets such prisoner possesses”). The courts have construed that section, however, as making in forma pauperis status available to any litigant who can meet the governing financial criteria. Hayes v. United States, 71 Fed. Cl. 366, 367 (Fed. Cl. 2006); Fridman v. City of N.Y., 195 F. Supp. 2d 534, 536 n.1 (S.D.N.Y. 2002). 3 Plaintiff is reminded that, although his application to proceed in forma pauperis has been granted, he is still

required to pay fees that he may incur in this action, including copying and/or witness fees. 4 See also Carris v. First Student, Inc., 132 F. Supp. 3d 321, 340-41 n.1 (N.D.N.Y. 2015) (Suddaby, C.J.)

recitation of the governing law after Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev'd on other grounds,

682 F. App'x 30. 5 If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional

Footnotes 1 Defendants also seeks to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on the

grounds that Plaintiff's claims are time-barred. This Court need not reach the issue because it lacks subject matter jurisdiction over the case. 2 Pro se complaints “must be construed liberally and interpreted to raise the strongest arguments that they

suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir.2006) (internal quotation marks omitted). 3 But see King v. Comm'r & New York City Police Dep't, 60 F. App'x 873, 874–75 (2d Cir.2003) (summary

order) (“The instant appeal is brought pursuant to the court's federal question jurisdiction, not its diversity jurisdiction. Nevertheless, the City argues that the domestic relations exception is not limited to diversity cases. Although this seems contrary to precedent, the city does cite language to support its argument. We need not examine this question, however, because even under the broadest interpretation of the exception, it applies only to cases that seek issuance or modification of divorce, alimony, or child custody decrees. Appellant is not seeking a domestic relations award, and he is not asking that his parental rights be reinstated.

Instead, his complaint seeks monetary damages. The domestic relations exception to federal jurisdiction is

therefore irrelevant to this action.”) (citation and parenthetical explanation omitted). 4 Even if this Court has jurisdiction, “[a] federal court presented with matrimonial issues or issues ‘on the verge’

of being matrimonial in nature should abstain from exercising jurisdiction so long as there is no obstacle to their full and fair determination in state courts.” Am. Airlines, Inc. v. Block, 905 F.2d 12, 14 (2d Cir.1990). End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

Footnotes 1 In 1990, in American Airlines, Inc. v. Block, the United States Court of Appeals for the Second Circuit

instructed federal district courts to abstain from exercising federal question jurisdiction of claims involving domestic relations issues, so long as those claims could be fully and fairly determined in the state courts. See 905 F.2d 12, 14 (2d Cir. 1990). For example, a federal district court should abstain from exercising its federal question jurisdiction of claims in which it is “asked to grant a divorce or annulment, determine support payments, or award custody of a child.” Id. (internal quotation marks and citation omitted). Two years after the Second Circuit issued its decision in American Airlines, the Supreme Court of the United States held, in Ankenbrandt v. Richards, that a previously recognized exception to the federal district courts' subject matter jurisdiction “divests the federal courts of power to issue divorce, alimony, and child custody decrees” in actions brought under a federal district court's diversity jurisdiction. 504 U.S. 689, 703 (1992); see id. at 705 (allowing for the possibility that such an exception to jurisdiction could be extended to “elements of the domestic relationship even when the parties do not seek divorce, alimony, or child custody”); see also Donohue v. Pataki, 28 F. App'x 59, 60 (2d Cir. 2002) (summary order) (“We agree with the district court's conclusion that it lacked jurisdiction to invalidate or otherwise review the state court's decision affirming the modification of Donohue's child support payments.” (citing, inter alia, Ankenbrandt, 504 U.S. at 703)). More recently, the Second Circuit, in Deem v. DiMella-Deem, held that regardless of the Supreme Court's holding in Ankenbrandt, its own previous holding in American Airlines remains good law. 941 F.3d 618, 621 (2d Cir. 2019). Thus, notwithstanding whether this Court is considering this action under its original federal question or diversity jurisdiction, it must either abstain from considering, or lacks subject matter jurisdiction to consider, any request by Plaintiff to issue a decision determining whether he owes child support. End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

Footnotes 1 The Court takes judicial notice Susan Hamlin Nasci, Esq., is a New York Family Court Support Magistrate.

See https://ww2.nycourts.gov/courts/5jd/onondaga/index.shtml (last visited Mar. 13, 2024). 2 Unless otherwise indicated, excerpts from the complaint are reproduced exactly as they appear in the original

and errors in spelling, punctuation, and grammar have not been corrected. 3 Plaintiff is advised that he will still be required to pay any costs and fees that he may incur in this matter,

including, but not limited to, any copying fees or witness fees. 4 Plaintiff also claims Defendant, “acting as a non-judicial court employee without proper authority and

jurisdiction, has trespassed upon the Plaintiff's right, specifically under 18 USC Section 242.” (Dkt. No. 1 at 1.) However, 18 U.S.C. § 242 is a criminal statute, which does not give rise to civil liability or authorize a private right of action. See Storm-Eggink v. Gottfried, 409 F. App'x 426, 427 (2d Cir. 2011) (holding there is “no private right of action” under 18 U.S.C. § 242).

5 According to the website maintained by the New York State Unified Court System, “[a] ‘Support Magistrate’

conducts the hearing, taking testimony from both sides concerning their income and expenses and the cost of supporting the child. The parties can present evidence and witnesses and cross-examine each other and the witnesses. The Support Magistrate calculates how much support the non-custodial parent must pay to the parent with custody, and sets a schedule for regular payments.” See https://ww2.nycourts.gov/courts/5jd/ family/support.shtml (last visited Mar. 13, 2024). 6 Defendant also would be protected under the doctrine of sovereign immunity. In Gollomp v. Spitzer, the Court

held that the New York Unified Court System is an “arm of the State” and affirmed the dismissal of a § 1983 claim against a judge under sovereign immunity. 568 F.3d 355, 365-68 (2d Cir. 2009). That holding was recently reaffirmed by the Second Circuit. Bythewood v. New York, No. 22-2542-cv, 2023 WL 6152796, at *1 (2d Cir. Sept. 21, 2023) (“The New York State Unified Court System is ‘unquestionably an arm of the state’ that shares in New York's immunity to suit.”). 7 To the extent Plaintiff is asking the Court to grant injunctive and declaratory relief with respect to ongoing

Family Court proceedings, including any post-judgment proceedings, the Court must likely abstain from hearing those claims under the Younger abstention doctrine. Younger v. Harris, 401 U.S. 37 (1971). 8 “A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a

single set of circ*mstances.” Fed. R. Civ. P. 10(b). 9 If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three

Footnotes 1 By all accounts, the proceedings were held in full accordance New York's Vehicle and Traffic Law and the

Rules and Regulations of the State of New York. See Vehicle and Traffic Law §§ 225 and 228; 15 NYCRR § 124.4. Plaintiff does not claim otherwise; nor does he claim that these regulations themselves violate any state or federal law. End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

Footnotes 1 Captain Conforti is listed in the complaint as a lieutenant, but, according to the City defendants, his current

rank is that of captain. 2 Plaintiff did not provide a first name for Sergeant Michetti. Defendants state that they have been unable to

identify any such individual and have received no request for legal representation by anyone of that name. (City Defs.' Mem. (Dkt. No. 55) at 1 n. 1). However, as a purported officer in the NYPD, the Court considers him among the City defendants and considers their arguments on his behalf. 3 Although they have not moved to dismiss this count, the City defendants have hardly conceded it. They have

reserved what is certainly the right to move for summary judgment later. (City Defs.' Mem. at 1 n. 2). 4 According to plaintiff, the City defendants received “benefits” from the civilian defendants that included a

demo line for unlimited cell phone calls and cell phone accounts; in exchange, City defendants “took the cell phone business from [p]laintiff and gave it to [defendant] Tan.” (Pl.'s Mem. (Dkt. No. 56) at 11). 5 Tan asserts in her answer that the relationship began in 2002 (Def. Tan's Ans. (Dkt. No. 38) ¶ 5), but

on a motion to dismiss, the Court must accept as true all factual allegations in the complaint and decide factual disputes in favor of the nonmoving party. See Midouin v. Downey Savings and Loan Ass'n, F.A., 834 F.Supp.2d. 95, 102 (E.D.N.Y.2011). 6 The arrest was actually made shortly after midnight on July 9. (Exh. D). 7 Liang does not identify the landlord of 40–41 Kissena Boulevard. 8 It is unclear precisely which non-City defendants were at the store when Liang arrived. The criminal complaint

filed against Liang mentions Wang (Krasnow Decl., Exh. G); Tan mentions Wang and Song in her statement (Krasnow Decl., Exh. K); and the Amended Complaint mentions Quek. (Am.Compl.¶ 58). That someone was there is not disputed; the identities of the entire cast are disputed, but the issue is immaterial to this motion. 9 Liang submitted the first of these complaints on July 11, 2008, and the second on or about September

18, 2008, after allegedly seeing Detective Zee walking out of the store at 41–40 Kissena Boulevard. (Am.Compl.¶¶ 96–97).

10 Although plaintiff does not specifically cite 42 U.S.C. § 1985 in this count, it is clear from the context of the

complaint that he intends to assert this cause of action. 11 Counts 1, 2 and 3 are folded into Liang's § 1983 claim, which is the statutory vehicle by which an individual

may assert a private cause of action against state officials for federal constitutional injuries. 12 Although Liang explicitly references a complaint filed against him regarding the third incident for which he

was arrested, he dates this complaint March 22, 2008. (Am.Compl.¶¶ 81, 148(a)). Exhibit V is dated July 18, 2008, and is therefore not incorporated by reference into the complaint. 13 Liang also asserts a false arrest claim against Detective Shim in connection with the July 9 arrest. However,

in the complaint, Liang merely alleges that he saw Detective Shim at the airport when he was being escorted a customs agent. (Am.Compl.¶ 37). This allegation cannot support a claim against Detective Shim for false arrest, and the count is dismissed as to that defendant as well. 14 In any event, it is of no moment whether Liang owned and operated a business out of 40–41 Kissena

Boulevard, since stay away orders often forbid an individual from entering a place he previously shared with the victim. See, e.g., Joan FF. v. Ivon GG, 85 A.D.3d 1219, 1219–20, 924 N.Y.S.2d 611, 611 (3d Dep't 2011) (upholding issuance of order of protection barring plaintiff from entering apartment he had shared with victim); People v. Qike, 182 Misc.2d 737, 740, 700 N.Y.S.2d 640, 643 (Sup.Ct., Kings County, 1999) (defendant required to vacate apartment he shared with victim after an order of protection was issued against him); People v. Scott, 195 Misc.2d 647, 649, 760 N.Y.S.2d 828, 830 (Sup.Ct., Kings County, 2003) (noting that a home owner can be convicted of burglary for unlawfully entering his own home in defiance of an order of protection). 15 The statute defines “enterprise” as “any individual, partnership, corporation, association, or other legal entity,

and any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). 16 These predicate acts must fall within one of the following categories: a broadly-defined class of offenses

encompassing most state—level felonies; an enumerated list of federal felonies; certain offenses pertaining to union and labor activities; various fraud offenses; acts indictable under the Currency and Foreign Transactions Reporting Act; specified acts indictable under the Immigration and Nationality Act; and any act that is indictable under any provision listed in 18 U.S.C. § 2332b(g)(5)(B). 18 U.S.C. § 1961(1). A “pattern of racketeering activity” means two or more predicate acts separated by fewer than ten years. Id. § 1961(5). 17 With regard to any state law claims, the Court may only exercise jurisdiction over them if they are “so related”

to his remaining federal claim for unreasonable search and seizure “that they form part of the same case or controversy.” Montefiore Med. Ctr. v. Teamsters Local 272, 642 F.3d 321, 332 (2d Cir.2011) (quoting 28 U.S.C. § 1367(a)). That is, the claims “must stem from the same common nucleus of operative fact,” and “must be such that the plaintiff would ordinarily be expected to try them all in one judicial proceeding.” Montefiore Med. Ctr., 642 F.3d at 332 (citing United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)). 18 In the fact section of his complaint, Liang alleges that defendant Scali convinced two individuals—Xiao Yun

Li and an unidentified “Officer Phil”—to accuse Laing of “want[ing]” and “attempting” to murder defendant Zee. It is not clear whether he intended to include these allegations as part of his claim against the City defendants for filing false complaints. If he did, they are dismissed along with that claim. Even assuming these allegations are true, Liang makes no claim that any claims or charges were brought against him for attempt or conspiracy to commit murder, nor that he was ever arrested on those grounds. These accusations also concern entirely different events from those on which he bases his Fourth Amendment claim. Hence,

they are not part of the same “common nucleus of operative fact,” Montefiore Med. Ctr., 642 F.3d at 332, and

the court lacks jurisdiction over those claims in any event. 19 Because plaintiff has neither identified nor served John and Jane Doe defendants despite ample time to

amend his complaint, and because he has not alleged facts in the complaint supporting Fourth Amendment claims against them, all causes of action against John and Jane Doe defendants are dismissed. See Fed.R.Civ.P. 4(m); Hayward v. City of New York, No. 12–CV–3220, 2012 WL 3580286, at *2 (E.D.N.Y. Aug. 17, 2012); Cantave v. New York City Police Officers, No. 09–CV–2226, 2011 WL 1239895, at *8 n. 4 (E.D.N.Y. Mar.28, 2011). End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

Footnotes * The Clerk of Court is directed to amend the caption as set forth above.

1 Weiss challenges only the District Court's conclusion that he advanced a frivolous legal argument. We thus

take no position on whether sanctions were appropriate based on his claims’ lack of “factual basis.” App'x 640 (noting Weiss's “attempt[ ] to string out this one [loan] into four separate causes of action that implicate all six Defendants,” including while “lack[ing] even conclusory allegations”). End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

Footnotes 1 The facts in this Opinion are drawn primarily from Plaintiff's First Amended Complaint (“Complaint” or

“Compl.” (Dkt. #26)), which is the operative pleading in this case. The Court notes here that the Complaint contains an abundance of conclusory allegations. For purposes of these motions, the Court considers and accepts only the factual allegations that are well-pleaded. See Lynch v. City of New York, 952 F.3d 67, 74-76 (2d Cir. 2020). For ease of reference, the Court refers to Chowaiki's opening brief as “Chowaiki Br.” (Dkt. #31); the Benrimon Defendants’ opening brief as “Benrimon Br.” (Dkt. #33); Plaintiff's opposition brief as “Pl. Opp.” (Dkt. #39); Chowaiki's reply brief as “Chowaiki Reply” (Dkt. #45); and the Benrimon Defendants’ reply brief as “Benrimon Reply” (Dkt. #46). Further, the Court refers to the Benrimon Defendants’ motion for Rule 11 sanctions as “Benrimon Sanctions Br.” (Dkt. #36); Plaintiff's opposition to the Benrimon Defendants’ motion for sanctions as “Pl. Sanctions Opp.” (Dkt. #41); and the Benrimon Defendants’ reply brief in support of their motion for sanctions as “Benrimon Sanctions Reply” (Dkt. #47). 2 Plaintiff also names John Does 1-10 as additional defendants “who, through their own actions, or their

actions through agents, conspired with and/or participated in the pattern of racketeering acts and activity, the collection of unlawful debt, and other fraudulent and unlawful acts and activity set out [in the Complaint].” (Compl. ¶ 11). 3 A Shtar Isko, also called a “Heter Iska,” is a document that is employed when one Jewish person lends money

to another to avoid the Talmudic prohibition on lending money for interest. See Madison Park Investors LLC v. 488-486 Lefferts LLC, 2015 N.Y. Slip Op. 30178(U) (Trial Order), 2015 WL 471786, at *10 n.3 (N.Y. Sup. Ct. Feb. 5, 2015). 4 Plaintiff contends that “the common purpose of all these Racketeering Activities is not changed by the fact

that Mr. Benrimon's son (Ms. Benrimon's brother, Mr. Rosen's brother-in-law), was involved in yet another art gallery, allegedly acting as a front to help the Benrimons’ gallery profit from selling art which was sold to others.” (Pl. Opp. 19). But it does matter to the Court's analysis that the Latamie Acts involved a different group of players from the ones at the heart of Plaintiff's RICO claims in this Complaint because “no RICO violation can be shown unless there is proof of the specified relationship between the racketeering acts and the RICO enterprise.” United States v. Indelicato, 865 F.2d 1370, 1384 (2d Cir. 1989); see Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985). While the “enterprise” and “pattern of

racketeering activity” are distinct elements of a RICO case, the existence of different players changes the

mode of commission of the predicate activity. And though not part of its analysis, the Court observes that in the proceeding brought by Marc Latamie against Benrimon Contemporary LLC, upon which Plaintiff bases his allegations, the court found that the plaintiff there “ha[d] not uncovered any evidence to support his” theory that David Benrimon was the alter ego of Benrimon Contemporary LLC. (Dkt. #34, Nikas Decl., Ex. A). 5 The Court notes that the Stipulation was filed by the Bankruptcy Trustee, not Piedmont. (See Bankruptcy

Case, Dkt. #174). 6 Those courts that have considered the issue have concluded uniformly that a Shtar Isko does not create a

legally enforceable partnership. See Madison Park, 2015 WL 471786, at *10 n.3 (collecting cases); Edelkind v. Fairmont Funding, Ltd., 539 F. Supp. 2d 449, 454 (D. Mass. Mar. 6, 2008) (collecting cases). 7 See Sedima, 473 U.S. at 496 n.14, 105 S.Ct. 3275:

[T]he definition of a “pattern of racketeering activity” differs from the other provisions in § 1961 in that it states that a pattern “ requires at least two acts of racketeering activity,” § 1961(5) (emphasis added), not that it “means” two such acts. The implication is that while two acts are necessary, they may not be sufficient. Indeed, in common parlance two of anything do not generally form a “pattern.” 8 Plaintiff's also contends that the Benrimon Defendants knew that Chowaiki stole the Picasso because the

Provenance stated that it belonged to someone who bought the Picasso at Sotheby's in London on February 6, 2007, at Lot 152. (See Compl. ¶¶ 51-53; Pl. Opp. 2). While it is true that Plaintiff, rather than Chowaiki, was the purchaser of the Picasso at the Sotheby's sale, there is nothing in the Provenance that would put someone on notice of such fact. The Provenance makes no mention of Plaintiff by name; it merely states that ten years before Chowaiki's transaction with Piedmont, someone bought the work at Sotheby's. Plaintiff's further accusation that the Benrimon Defendants “deleted [the Picasso's] provenance which showed that [Plaintiff] was the artwork's owner” (Pl. Opp. 17), is entirely unfounded. 9 Plaintiff's allegations of money laundering are entirely conclusory. (See Compl. ¶ 16 (“The common and

unifying purpose [of each RICO enterprise] was to ... launder the proceeds, if possible.”); id. at ¶ 28 (summarily stating that “payment” for Warhol prints or painting “constitutes a violation of 18 U.S.C. § 1956 (money laundering)”); id. at ¶ 61 (stating that Chowaiki's deposit of the $300,000 loan payment constitutes an act of wire fraud); id. at ¶ 78 (“Upon information and belief and as will be disclosed in discovery, [the Benrimon Defendants] by participating in the continued sending of money or things of value to pay for le Gueridon's storage, and to continue fraudulently selling le Gueridon, without disclosing the true owner of le Gueridon, all in violation of wire fraud, money laundering, etc. statutes.”); id. at ¶ 98 (describing Chowaiki's “illegal practice” of stealing artwork as money laundering violations); id. at ¶ 108 (describing Chowaiki's disposition of the Leger as money laundering)). His brief in opposition to the motions to dismiss does not elaborate on these conclusory assertions. (See generally Pl. Opp.). 10 The Court is not swayed by Plaintiff's attempt to disaggregate this single loan transaction into its component

pieces in order to substantiate his claim that Piedmont and Rosen were in the business of making usurious loans. (See Compl. ¶¶ 85-86; Pl. Opp. 30). 11 Plaintiff argues that he need not allege multiple usurious loans made over a long period of time to state a

RICO claim for usurious lending. (Pl. Opp. 26). He explains that “there is no requirement in the statute or case law that plaintiff must allege or prove multiple usurious loans, longevity, or a pattern of usurious loans to prevail on a claim that defendants ‘were in the business of lending money or a thing of value at a rate usurious under State or Federal law.’ ” ( Id.). Plaintiff is correct that there is nothing in the text of the RICO

statute that requires multiple usurious loans be alleged. But, as explained above, the case law requires a

plaintiff to show that the defendants were in the business of making usurious transactions, and Plaintiff's allegations on this point do not suffice. 12 The Court recognizes that a complaint may incorporate material or a document outside of the complaint by

reference, and that a court can consider such incorporated material on a Rule 12(b)(6) motion. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002). The problem here is that Plaintiff does not refer to portions of the Criminal Case docket that would support his RICO claim. Cf. Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004) (finding incorporation where complaint “explicitly refer[ed] to and relie[d] upon two of the documents at issue”). 13 As explained infra note 9, Plaintiff has failed to allege, with any specificity, how the alleged predicate acts

satisfy the elements of money laundering. 14 To the extent that Plaintiff means to allege that his consignment with Chowaiki was fraudulent ab initio, it

fails for two reasons. First, such a fraud is not pleaded with the specificity required by Rule 9(b). Second, the claim fails for want of domestic injury, as discussed infra. 15 In Plaintiff's brief, he states that “[a]fter termination of the three-month consignment, Mr. Chowaiki, on multiple

occasions, fraudulently induced Mr. Malvar to let the works of art remain in New York, [Compl.] ¶¶ 37, 105-106.” (Pl. Br. 6). But the paragraphs of Plaintiff's Complaint that he cites do not state that Chowaiki induced Plaintiff to let the artwork remain in New York, nor do they state that the consignment lasted three months. The Complaint merely states that: (i) the artwork was given to Chowaiki on consignment; (ii) at some point, Plaintiff and his brother requested its return; (iii) Chowaiki repeatedly promised to return the artwork; (iv) Chowaiki never actually returned the artwork; and (v) Chowaiki sold the Leger to a company in the United Kingdom. (See Compl. ¶¶ 37, 105-06). 16 Indeed, Chowaiki explicitly states that “when the Complaint is distilled to its essential facts, it is plainly evident

that it ... is, in actuality the proverbial sheep of [ ] state-law conversion and replevin claims[.]” (Chowaiki Br. 1). 17 It is unclear to the Court from where the Benrimon Defendants discern the requirement that a plaintiff must

plead these specific facts to allege demand and refusal. 18 Plaintiff's argument that the Benrimon Defendants did not provide him with a copy of their brief in support of

their motion to dismiss is a non-starter. The Benrimon Defendants’ brief in support of their motion for sanctions thoroughly describes the bases for the requested sanctions. (See generally Benrimon Sanctions Br.). And, further, the technical requirements of the safe harbor provision do not impose upon the Benrimon Defendants the obligation to provide Plaintiff with their brief in support of their separate motion to dismiss. See Star Mark Mgmt., Inc. v. Koon Chun Hing Kee Soy & Sauce Factory, Ltd., 682 F.3d 170, 176-77 (2d Cir. 2012). End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

Footnotes 1 Although Plaintiff is currently proceeding pro se, the Court notes that he had counsel when preparing his

response to Defendant's motion for summary judgment. Accordingly, no need exists to construe Plaintiff's response with the special solicitude ordinarily afforded to pro se litigants. 2 The Court notes that, while it did not previously (i.e., in its prior decisions) liberally construe Plaintiff's

retaliation claim as arising under three separate theories, it does so now. The Court further notes that it has the power to address these two additional theories for each of two alternative reasons: (1) because Defendants moved for dismissal of Plaintiff's retaliation claim in its entirety, Plaintiff has had sufficient notice and an opportunity to be heard with respect to the two theories in question; and (2) in any event, even if Plaintiff cannot be said to have had such notice and an opportunity to be heard, he filed his Complaint pro se and the Court finds the two theories to be so lacking in arguable merit as to be frivolous, see Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (recognizing that district court has power to sua sponte dismiss pro se complaint based on frivolousness notwithstanding fact that plaintiff has paid statutory filing fee). 3 As discussed above, Plaintiff was actually given three noise violations. However, because his permit was

revoked on the same day that he received the third violation, the Court will disregard the third violation for purposes of this analysis. 4 The Court notes that Plaintiff spends considerable time in his opposition papers disputing the sufficiency of the

evidence and procedures that were followed that led to the issuance of noise violations. (See generally Dkt. No. 67, ¶¶ 56-95 [Pl.'s Decl.].) However, this Court is not the proper forum for that dispute. Furthermore, to the extent that the New York Supreme Court observed that there appeared “to have been a disproportionate amount of time and money spent on [the noise violation] notice,” and that the records did not “reveal a real issue with dog-barking,” those observations are not binding upon this Court. (Dkt. No. 67, Attach. 2, at 6.) Setting aside the fact that the observations constitute dicta, Defendants have submitted admissible record evidence demonstrating that Mr. Ennis acted upon complaints made to him by residents of the Town, which Plaintiff has failed to properly dispute. 5 For example, with regard to this lack of additional evidence regarding retaliatory animus, Plaintiff has failed to

adduce admissible record evidence establishing that, even assuming Mr. Gleason knew of Plaintiff's intent to engage in protected speech, the so-called “manner of the interaction” by Mr. Gleason (i.e., the hand delivery of the letter) was in fact unusual for Mr. Gleason given the date of the letter and the date of the public meeting. Moreover, Plaintiff has failed to adduce admissible record evidence that the so-called “timing ... of the interaction” is significant, given his rather constant exercise of his First Amendment rights during the time in question. End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

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