Boyde v. Barnes

• Court: District Court, N.D. New York
• Decided: October 20, 2022
• Docket: 5:22-cv-01024
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _____________________________________________

JOHNNY WILLIAM BOYDE,

Plaintiff, 5:22-cv-01024 v. (MAD/TWD)

DETECTIVE ANDREW BARNES,

Defendant. _____________________________________________

APPEARANCES:

JOHNNY WILLIAM BOYDE Plaintiff, pro se 07001284 Onondaga County Justice Center 555 South State Street Syracuse, NY 13202

THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION The Clerk has sent to the Court for review a pro se complaint filed by Johnny William Boyde (“Plaintiff”) pursuant to 42 U.S.C. § 1983 (“Section 1983”). (Dkt. Nos. 1, 6.1) Plaintiff, who is currently confined at the Onondaga County Justice Center, has not paid the filing fee required for this action and seeks to proceed in forma pauperis (“IFP”). (Dkt. No. 4.)

1 Plaintiff’s original complaint was received on September 30, 2022. (Dkt. No. 1.) By Order entered September 30, 2022, this case was administratively closed based on Plaintiff’s failure to comply with the filing fee requirement. (Dkt. No. 2.) Thereafter, Plaintiff filed his IFP application and inmate notification form, along with a copy of his original complaint and “amended complaint”, and the Clerk was directed to reopen this action and restore it to the Court’s active docket. (Dkt. Nos. 3, 4, 5, 6. 7.) At this early juncture, and in deference to Plaintiff’s pro se status, rather than treat the “amended complaint” as a superseding pleading, the Court will consider Plaintiff’s “amended complaint” as a supplement to his original complaint and consider them as a single pleading for purposes of initial review. (Dkt. Nos. 1, 6.) For the reasons set forth below, Plaintiff’s IFP application is denied, and the undersigned recommends sua sponte dismissing this action without further leave to amend pursuant to 28 U.S.C. § 1915(g) and 28 U.S.C. §§ 1915(e) and 1915A. II. IFP APPLICATION

Where a plaintiff seeks leave to proceed IFP, the Court must determine whether the plaintiff has demonstrated sufficient economic need to proceed without prepaying, in full, the Court’s filing fee of four hundred two dollars ($402).2 The Court must also determine whether the “three strikes” provision of Section 1915(g) bars the plaintiff from proceeding IFP and without prepayment of the filing fee.3 More specifically, Section 1915(g) provides as follows: In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

28 U.S.C. § 1915(g).4 If the plaintiff is indigent and not barred by Section 1915(g), the Court must also consider whether the causes of action stated in the complaint are, inter alia, frivolous

2 “28 U.S.C. § 1915 permits an indigent litigant to commence an action in a federal court without prepayment of the filing fee that would ordinarily be charged.” Cash v. Bernstein, No. 09-CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010). “Although an indigent, incarcerated individual need not prepay the filing fee . . . at the time of filing, he must subsequently pay the fee, to the extent he is able to do so, through periodic withdrawals from his inmate accounts.” Id. (citing 28 U.S.C. § 1915(b); Harris v. City of New York, 607 F.3d 18, 21 (2d Cir. 2010)). 3 The manifest intent of Congress in enacting this “three strikes” provision was to curb prison inmate abuses and to deter the filing of multiple, frivolous civil rights suits by prison inmates. Tafari v. Hues, 473 F.3d 440, 443-44 (2d Cir. 2007). The question of whether a prior dismissal is a “strike” is a matter of statutory interpretation and, as such, is a question for the Court to determine as a matter of law. Id. at 442-43. 4 As used in this Section, the term “prisoner” means “any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations or malicious, or if they fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B); see also 28 U.S.C. § 1915A(b). In this case, Plaintiff has demonstrated economic need and has filed the inmate authorization form required in this District. (See Dkt. Nos. 4, 5.) Therefore, the Court must now

determine whether the “three strikes” provision bars Plaintiff from proceeding IFP. A. Determination of “Strikes” The Court has reviewed Plaintiff’s litigation history on the Federal Judiciary’s Public Access to Court Electronic Records (“PACER”) Service. See PACER Case Locator, https://pcl.uscourts.gov/pcl/pages/search/findParty.jsf (last visited Oct. 18, 2022). Plaintiff is a frequent litigator and, prior to this action, has commenced twelve civil actions in this District.5 Having reviewed Plaintiff’s litigation history, the Court finds that as of the date Plaintiff commenced this action, he had already accumulated at least “three strikes.” See Boyde v. Brockway, 9:18-cv-01231, Dkt. No. 10 (N.D.N.Y. Jan. 11, 2019) (dismissing complaint for failure to state a claim upon which relief may be granted); Boyde v. Green, 9:18-cv-01033, Dkt

No. 7 (N.D.N.Y. Oct. 17, 2018) (same); Boyde v. Uzunoff, 9:21-cv-00741, Dkt. No. 26 (N.D.N.Y. Sept. 23, 2021) (same); Boyde v. Quigley, 9:21-cv-00742, Dkt. No. 9 (N.D.N.Y. Sept. 23, 2021) (same); Boyde v. Onondaga Justice Center, 9:21-cv-00748, Dkt. No. 9 (N.D.N.Y.

of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.” 28 U.S.C. § 1915A(c). 5 See Boyde v. County of Onondaga, 5:16-cv-00555 (N.D.N.Y. May 12, 2016); Boyde v. Brockway, 9:18-cv-01231 (N.D.N.Y. Oct. 18, 2018); Boyde v. Green, 9:18-cv-01033 (N.D.N.Y. Jan. 4, 2019); Boyd v. County of Onondaga, 5:19-cv-00150 (N.D.N.Y. Feb. 6, 2019); Boyde v. City of Syracuse, 5:21-cv-00270 (N.D.N.Y. Mar. 9, 2021); Boyde v. Uzunoff, 9:21-cv-00741 (N.D.N.Y. June 29, 2021); Boyde v. Quigley, 9:21-cv-00742 (N.D.N.Y. June 29, 2021); Boyde v. Onondaga Justice Center, 9:21-cv-00748 (N.D.N.Y. June 30, 2121);Boyde v. Onondaga County Justice Center, 9:21-cv-00796 (N.D.N.Y. July 13, 2021); Boyde v. Onondaga County Justice Center, 9:21-cv-00797 (N.D.N.Y. July 13, 2021); Boyde v. McCarty, 9:21-cv-00837 (N.D.N.Y. July 23, 2021); Boyde v. Fahey, 5:21-cv-01277 (N.D.N.Y. Dec. 1, 2021). Sept. 23, 2021) (same); Boyde v. McCarty, 9:21-cv-00837, Dkt. No. 4 (N.D.N.Y. Sept. 23, 2021) (same); Boyde v. Fahey, 5:21-cv-01277, Dkt. No. 16 (N.D.N.Y. May 26, 2022) (same). Thus, unless it appears that the “imminent danger” exception to the “three-strikes” rule is applicable to this action, Plaintiff may not proceed IFP.

B. The “Imminent Danger” Exception Congress enacted the “imminent danger” exception contained in the final phrase of Section 1915(g) as a “safety valve” to prevent impending harms to prisoners otherwise barred from proceeding IFP. Malik v. McGinnis, 293 F.3d 559, 563 (2d Cir. 2002). Generally speaking, the allegations relevant to this inquiry “are those in which [plaintiff] describes physical injury, threats of violence, and deprivation of medical treatment.” Chavis v. Chappius, 618 F.3d 162, 165 (2d Cir. 2010).6 “[F]or a prisoner to qualify for the imminent danger exception, the danger must be present when he files his complaint – in other words, a three-strikes litigant is not excepted from the filing fee if he alleges a danger that has dissipated by the time a complaint is filed.” Pettus v.

Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009); see also Polanco v. Hopkins, 510 F.3d 152 (2d Cir. 2007) (imminent danger claims must be evaluated at the time the complaint is filed, rather than at the time of the events alleged). In addition, there must be an “adequate nexus between the claims he seeks to pursue and the imminent danger he alleges.” Pettus, 554 F.3d at 296. In deciding whether such a nexus exists, the Second Circuit has instructed the courts to consider

6 In Chavis, the Second Circuit described the nature of the Court’s inquiry regarding imminent danger as follows: “although the feared physical injury must be serious, we should not make an overly detailed inquiry into whether the allegations qualify for the exception, because § 1915(g) concerns only a threshold procedural question, while [s]eparate PLRA provisions are directed at screening out meritless suits early on.” Id. at 169-70 (quoting Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007)) (internal quotation marks omitted). “(1) whether the imminent danger of serious physical injury that a three-strikes litigant alleges is fairly traceable to unlawful conduct asserted in the complaint, and (2) whether a favorable judicial outcome would redress that injury.” Id. at 298-99. Both requirements must be met in order for the three-strikes litigant to proceed IFP. Id. Generally speaking, the allegations

relevant to the imminent danger inquiry “are those in which [plaintiff] describes physical injury, threats of violence, and deprivation of medical treatment.” Chavis, 618 F.3d at 165. Upon careful review of the complaint and “amended complaint”, the Court finds Plaintiff has failed to plead facts sufficient to place him within the imminent danger exception provided by Section 1915(g), which is available “[w]hen a threat or prison condition is real and proximate, and when the potential consequence is ‘serious physical injury.’” See Flemming v. Kemp, No. 9:09-CV-1185 (TJM/DRH), 2010 WL 3724031, at *2 (N.D.N.Y. Aug. 19, 2010) (citing Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002) (The imminent danger exception is available “for genuine emergencies,” where “time is pressing” and “a threat . . . is real and proximate.”)). In this action, Plaintiff alleges wrongdoings related to a grand jury proceeding in Onondaga County Court in July 2016. (Dkt. No. 1 at 2-5;7 Dkt. No. 6 at 4.) Specifically,

Plaintiff claims that on July 28, 2016, Detective Andrew Barnes (“Defendant”) “testified before the grand jury falsely, maliciously, and without probable cause” “for the purpose of procuring an indictment against Plaintiff . . . for three counts of the crimes of failure to register/verity change of address as a sex offender.” (Dkt. No. 1 at 2-3.) “Solely based on, and in reliance on the false and perjured testimony of the Defendant”, the grand jury indicted Plaintiff for the three counts. Id. at 3. “The indictment was designated as Indictment Number 2016-0698-1 and was returned

7 Page references to documents identified by docket number are to the page numbers assigned by the CM/ECF docketing system maintained by the Clerk’s Office. in open court on [August 2, 2016], and was duly docketed as Index Number 16-0831.” Id. at 4- 5. Thereafter, on December 1, 2016, “Plaintiff’s first count of the three was dismissed thus terminating the prosecution in favored to Plaintiff.” Id. at 5.8 Plaintiff claims “the problem” with Defendant’s testimony during the grand jury proceeding was that “Plaintiff’s designation as

a ‘sex offender’ within the meaning of Correction Law § 168a[1], was vacated by operation of law upon reversal of Plaintiff’s judgment on [November 14, 2014], and the Plaintiff did not become a ‘sex offender’ (again) until the Plaintiff was sentenced on July 21, 2015.” (Dkt. No. 6 at 4.) Plaintiff seeks significant monetary damages. (Dkt. No. 1 at 5-6; Dkt. No. 6 at 5.) Even liberally construed, Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996), Plaintiff’s allegations do not plausibly suggest that he was at risk of an “imminent danger of serious physical injury” when he filed this action in September 2022. See Pettus, 554 F.3d at 296 (stating that risk of serious physical harm must exist at the time the complaint is filed). Accordingly, Plaintiff’s IFP application is denied. (Dkt. No. 4.) Moreover, because Plaintiff’s claim(s) do not involve a physical injury, it is impossible

for Plaintiff to demonstrate that any of the events described in the amended complaint placed him at risk of an “imminent danger of serious physical injury” when he filed this action. Under such circumstances, the Court need not grant Plaintiff leave to amend his pleading further before requiring him to pay the required filing fee or face dismissal. See Chavis, 618 F.3d at 170 (leave need not be granted where even a liberal reading of the complaint fails to give “any indication that a valid claim might be stated”); Carolina v. Rubino, 644 Fed. App’x 68, 73, (2d Cir. 2016) (summary order) (concluding that the district court “did not abuse its discretion by dismissing

8 Plaintiff attaches, inter alia, a copy of Decision/Order dated December 1, 2016, by the Hon. Walter W. Hafner, Jr., Acting Onondaga County Court Judge, dismissing count 1 of the indictment as an exhibit to the complaint. (Dkt. No. 1 at 11-18.) Carolina’s complaint without granting leave to amend Carolina’s complaint” because the complaint “did not present the possibility of [plaintiff] stating a valid imminent-danger claim”). Ordinarily, the finding that Plaintiff does not qualify for the “imminent danger” exception to the “three-strikes” rule would end the Court’s discussion, and Plaintiff, in light of his pro se

status, would likely be afforded an opportunity to prepay the full filing of four hundred and two dollars ($402.00) to continue with this action. However, as is discussed more completely below, because the Court has an overarching obligation to determine that a claim is not legally frivolous before permitting a pro se plaintiff’s complaint to proceed, in this instance, the Court recommends dismissal without leave to pay the filing fee. See, e.g., Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (holding that a district court may sua sponte dismiss a frivolous complaint, notwithstanding the fact that the plaintiff paid the statutory filing fee). III. SUFFICIENCY OF THE COMPLAINT A. Legal Standards

“Notwithstanding any filing fee, or any portion 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). Similarly, this Court must review any “complaint in a civil action in which a prisoner9 seeks redress from a governmental entity or officer or employee of a governmental entity” and must

9 As used in this Section, the term “prisoner” means “any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.” 28 U.S.C. § 1915A(c). “identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint . . . is frivolous, malicious, or fails to state a claim upon which relief may be granted; or . . . seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A. The Court must also dismiss a complaint, or portion thereof, when the Court lacks

subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally. Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding that a pro se litigant’s complaint is to be held “to less stringent standards than formal pleadings drafted by lawyers”); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). “An action is frivolous when either: (1) the factual contentions are clearly baseless such as when the claims are the product of delusion or fantasy; or (2) the claim is based on an indisputably meritless legal theory.” Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). “A claim is based on an indisputably meritless legal theory when either the claim

lacks an arguable basis in law, or a dispositive defense clearly exists on the face of the complaint.” Id. To survive dismissal for failure to state a claim, a complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). This short and plain statement of the claim must be “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The statement of the claim must do more than present “an unadorned, the-defendant-harmed-me accusation.” Id. It must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555; see also Fed. R. Civ. P. 8(a)(2). In determining whether a complaint states a claim upon which relief may be granted, “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). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. B. Application Plaintiff brings this action pursuant to Section 1983, which “provides a cause of action for ‘the deprivation of any rights, privileges, or immunities secured by the Constitution and laws’ of the United States.” Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). “To prevail on a claim under 42 U.S.C. § 1983, a plaintiff must allege (1) that some person has deprived him of a federal right, and (2) that the person who has deprived him of

that right acted under color of state law.” Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005). Having carefully reviewed Plaintiff’s amended complaint, the Court recommends that it be sua sponte dismissed in its entirety pursuant to 28 U.S.C. §§ 1915(e) and 1915A. Here, as set forth above, Plaintiff claims Defendant testified before a grand jury “falsely, maliciously, and without probable cause” that Plaintiff had “committed three counts of the crime of failure to register/verify change of address as a sex offender[.]” (Dkt. No. 6 at 4.) Witnesses are, however, absolutely immune from liability under Section 1983 for damages for their testimony, even if their testimony was false. See Rehberg v. Paulk, 566 U.S. 356, 366-69 (2012); Briscoe v. LaHue, 460 U.S. 325 (1983). In Rehberg, the Supreme Court held that “a grand jury witness has absolute immunity from any § 1983 claim based on the witness’ testimony.” 566 U.S. at 369. This immunity attaches even if the testimony is false and given by a police officer. See Adamou v. Doyle, 707 F. App’x 745, 746 (2d Cir. 2018) (noting that under Rehberg, “a grand jury witness, including a

law enforcement officer, ‘has absolute immunity from any § 1983 claim based on the witness’ testimony,’ even if that testimony is perjurious” (quoting Rehberg, 566 U.S. at 369)). Accordingly, Defendant is entitled to absolute immunity. See, e.g., Burdick v. Swarts, No. 5:12-CV-1711 (NAM/DEP), 2019 WL 1409938, at *7 (N.D.N.Y. Mar. 28, 2019); Jenkins v. Cty. of Washington, 126 F. Supp. 3d 255 (N.D.N.Y. 2015) (police officers entitled to absolute immunity from liability for their alleged conduct of giving false testimony before grand jury and during criminal trial in § 1983 action against officers brought by arrestee who was prosecuted for and acquitted of drug offenses). Therefore, the Court recommends dismissing this action because it is frivolous, fails to state a claim on which relief may be granted, and seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e) and 1915A.10

Generally, when the court dismisses a pro se complaint sua sponte, the court should afford the plaintiff the opportunity to amend at least once; however, leave to re-plead may be

10 Additionally, “[w]hen a [plaintiff] seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.” Heck v. Humphrey, 512 U.S. 477, 487 (1994). It is unclear whether Plaintiff’s current confinement at the Onondaga County Justice Center is related to this action. To the extent Plaintiff alleges he was wrongfully convicted as a result of Defendant’s testimony at the grand jury proceeding, Plaintiff’s pursuit of money damages may also be barred by the favorable termination rule in Heck v. Humphrey. denied where any amendment would be futile. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). The defects in Plaintiff’s Section 1983 claims against Defendant are substantive and would not be cured if afforded an opportunity to amend. Therefore, the Court recommends

dismissal of this action without leave to replead. Lastly, as noted, Plaintiff is a frequent pro se litigator in this District and has a history of filing IFP complaints dismissed on initial review for failure to state a claim upon which relief may be granted. Plaintiff is cautioned that the filing of vexatious, harassing, or duplicative lawsuits may result in the imposition of sanctions, including limitations on his ability to file without prior permission of the Court. See Ajamian v. Nimeh, No. 14-CV-0320 (GTS), 2014 WL 6078425, at *3 (N.D.N.Y. Nov. 13, 2014) (“[A] federal district court may impose reasonable filing restrictions on a pro se litigant in that particular court, pursuant to 28 U.S.C. § 1651(a) and its inherent authority to control and manage its own docket so as to prevent abuse in its proceedings.”); see also In re Sassower, 20 F.3d 42, 44 (2d Cir. 1994) (where a pro se plaintiff

has demonstrated a “clear pattern of abusing the litigation process by filing vexatious and frivolous complaints,” a “leave to file” requirement may be instituted by the court as an appropriate sanction); Hong Mai Sa v. Doe, 406 F.3d 155, 158 (2d Cir. 2005) (“If a litigant has a history of filing vexatious, harassing or duplicative lawsuits, courts may impose sanctions, including restrictions on future access to the judicial system.”). WHEREFORE, for the reasons stated herein, it is hereby ORDERED that Plaintiff’s IFP application (Dkt. No. 4) is DENIED; and it is further RECOMMENDED that this action be DISMISSED IN ITS ENTIRETY WITHOUT LEAVE TO REPLEAD pursuant to 28 U.S.C. §§ 1915(e) and 1915A; and it is hereby ORDERED that the Clerk serve a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam) on Plaintiff. Pursuant to 28 U.S.C. § 636(b)(1), Plaintiff has fourteen days within which to file written objections to the foregoing report.!! Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. 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)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 72, 6(a). IT IS SO ORDERED. Dated: October 20, 2022 Syracuse, New York La : □ 4 Theérése Wiley Dancks United States Magistrate Judge

Tf 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). Ifthe 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).

2010 WL 3724031 reasons, it is recommended that defendants’ motion be granted. Fa KeyCite Yellow Flag - Negative Treatment Declined to Extend by Lewis v. Huebner, S.D.N.Y., March 18, 2019 2 Flemming is familiar with the litigation process, 2010 WL 3724031 having filed over forty federal cases in courts Only the Westlaw citation is currently available. in the Second Circuit with nineteen of these United States District Court, being civil rights cases in the Northern District. N.D. New York. See US. Party/Case Index (visited Aug. 11, 2010) < http://pacer . uspci.uscourts.gov/cgi-bin/ Woodrow FLEMMING, Plaintiff, dquery.pl>. Flemming's lawsuits all appear to relate V. to his incarceration in DOCS facilities Debbie KEMP; Jeffrey Hyde; George Waterson; 3 □ Correctional Officer John A. Tatro; Correctional Officer The motion is made on behalf’ of all remaining Darrin C. Carrigeux; Correctional Officer Todd C. defendants except Carrigeux, Eddy, and Herbert, who have never been served with process or Manley; Leo Palmer; Correctional Officer Wayne I. otherwise appeared in this case. See Dkt. Nos. 13, Palmer; Correctional Officer Kevin Eddy; Correctional 15. Officer Jerry J. Herbert; and Terry James, Defendants. No. 09-CV-1185 (TIM/DRH). I. Background Aug. 19, 2010. The facts are related herein in the light most favorable to Flemming as the non-moving party. See Sheppard v. Beerman, Attorneys and Law Firms 18 F 3d 147, 150 (2d Cir.1994). WOODROW FLEMMING, Malone, NY, pro se. . oo, Flemming proceeds in this action in forma pauperis (“IFP”). Hon. Andrew M. Cuomo, New York State Attorney General, Dkt Nos. 3, 5. Flemming's second amended complaint and Aaron M. Baldwin, Esq., Assistant Attorney General, Albany, Subsequently filed motion papers were extremely difficult to NY, for Defendants. decipher and were nearly illegible. 4 Thus, from the Court's inspection and attempted construction of the allegations, it appears that all of the actions in dispute occurred while REPORT-RECOMMENDATION AND ORDER | Flemming was incarcerated at Upstate Correctional Facility (“Upstate”). | This matter was referred to the undersigned for 4 report and recommendation pursuant to 28 U.S.C. Flemming has been instructed by the undersigned, § 636(b) and N.D.N.Y.L.R. 72.3(c). and many other judges in this district, that his papers need to be either typewritten or in legible DAVID R. HOMER, United States Magistrate Judge. handwriting. See, e.g., Flemming v. Goord, No. 06— CV-562, 2007 WL 3036845, at *1 n. 2 (citing *1 Plaintiff pro se Woodrow Flemming (“Flemming”), an cases) (Dkt. No. 33-9). inmate mn the custody of the New York State Department of Flemming contends that on September 5, 2005, his Eighth Correctional Services ( DOCS ) brings this action pursuant Amendment rights were violated when defendants (1) used to 42 U.S.C. § 1983 alleging that various DOCS employees . . . : excessive force to enter and extract him from his cell, violated his constitutional rights under the First, Fourth, (2) were deliberately indifferent to his medical conditions Eighth, and Fourteenth Amendments.” Second Am. Compl. when deciding to deploy chemical agents into the cell, (3) (Docket No. 9). Presently pending is defendants' motion > were deliberately indifferent to the serious medical needs to dismiss pursuant to 28 U.S.C. § 1915(g). Dkt No. 33. he developed after the use of force, (4) failed to protect or Flemming opposes the motion. Dkt. No. 34. For the following intervene during the course of the excessive force, and (5) subjected him to unconstitutional conditions of confinement

him from having his medical machine, placing him on a (quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989)). restricted diet, and depriving him of regular contact with Malicious claims are those filed with the intent to hurt or harm others and his personal effects. Second Am. Compl. at 7–9, another. Id. (citations omitted). The failure to state a claim 12–15; see also Dkt. No. 9 at 21–26, 34–35, 37, 42–43, 47, applies a parallel definition from Fed.R.Civ.P. 12(b)(6), but “it 63, 71–75, 79–80, 85, 91, 93–94, 101–111 (exhibits allegedly does not follow that a complaint which falls afoul of the [12(b) pertaining to some, but not all, of the Eighth Amendment (6) motion to dismiss] standard will invariably fall afoul of violations). Flemming contends that defendants undertook the [§ 1915(g) standard].” Neitzke, 490 U.S. at 326; see also these actions pursuant to a conspiracy, in retaliation for Tafari, 473 F.3d at 442 (citations omitted). his proclivity to file grievances at the facility. Second Am. Compl. at 8, 15; see also Dkt. No. 9 at 32–33, 44, 46, 48– 7 The three-strikes provision was adopted as part 50, 57–62, 64, 66, 68–70, 76–78, 81–84, 86–90, 92, 97–100 of the Prison Litigation Reform Act (“PLRA”), (exhibits showing some of the grievances filed), Moreover, Pub.L. No. 104–134, 110 Stat. 1321 (1995), which Flemming contends that during the use of force incident, had as its principal purpose deterring frivolous his cell was searched in violation of his Fourth Amendment prisoner litigation. Nicholas v. Tucker, 114 F.3d 17, rights. Second Am. Compl. at 7.6 Lastly, Flemming contends 19 (2d Cir.1997). that (1) his removal from a medical unit to SHU violated his *2 This “three-strikes” provision contains a narrow due process rights, (2) he was deprived of due process during exception which permits suits, notwithstanding prior disciplinary hearings, and (3) defendants illegally confiscated dismissals, when the prisoner is “under imminent danger his property. Second Am. Compl. at 8–11. of serious physical injury.” 28 U.S.C. § 1915(g); see also Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir.2002) (applying 5 SHUs exist in all maximum and certain medium imminent danger exception “[w]hen a threat or prison security facilities. The units “consist of single- condition is real and proximate, and when the potential occupancy cells grouped so as to provide separation consequence is ‘serious physical injury.’ ”). For the exception from the general population ....“ N .Y. Comp.Codes to apply, “the danger must exist at the time the complaint is R. & Regs. tit. 7, § 300.2(b) (2007). Inmates are filed ... [since] Congress indicated that it wanted to include confined in a SHU as discipline, pending resolution a safety valve ... to prevent impending harms, not those of misconduct charges, for administrative or harms that had already occurred.” Malik v. McGinnis, 293 security reasons, or in other circumstances as F.3d 559, 562–63 (2d Cir.2002). Thus, courts must find “a required. Id. at pt. 301. nexus between the imminent danger a three-strikes prisoner alleges ... and the legal claims asserted in his complaint.” 6 While no previous mention was made of a First Pettus v. Morgenthau, 554 F.3d 293, 297 (2d Cir.2009). In Amendment denial of access claim in the second order to establish such a nexus, inmates must show that (1) amended complaint, Flemming did reference the the “imminent danger of serious physical injury ... is fairly allegedly illegal search in which documents were traceable to unlawful conduct asserted in the complaint and confiscated. These documents were identified, in (2) ... a favorable judicial outcome would redress that injury.” a subsequent submission, as legal documents. As Id. (emphasis in original). such, and pursuant to the instructions to liberally construe such complaints, the First Amendment Less than three years ago, Flemming's IFP status was revoked violation has also been deemed pled in the amended under § 1915(g) pursuant to a report-recommendation written complaint. by the undersigned. See Flemming v. Goord, No. 06–CV– 562, 2007 WL 3036845 (N.D.N.Y. Oct. 16, 2007) (Dkt. No. 33–9). Moreover, Flemming's complaints have continued to II. Discussion be dismissed pursuant to § 1915(g) in this district for the past two years. See Flemming v. The State of New York, Under 28 U.S.C. § 1915(g), prisoners are barred from No. 09–CV–465 (NAM) (N.D.N.Y. June 8, 2009) (explaining proceeding IFP after three or more prior claims have been that Flemming as been subject to the three-strike rule's dismissed as frivolous, malicious, or for failing to state a enforcement on multiple occasions in this district) (citations 7 (Dkt. No. 33–11); Flemming v. Goord, No. 06–CV–1244 (LEK) (N.D.N.Y. Jan. 15, 2008) (holding that Flemming “is district courts outside of this Circuit well aware of the ‘three-strikes' rule ... [as he] has had [it] ... have held that the mere fact enforced against him in this district.”) (citations omitted) that multiple physical assaults have (Dkt. No. 33–10). As these decisions demonstrate, Flemming occurred in the past does not, in and has previously had at least three cases dismissed as frivolous of itself, constitute an imminent danger or failing to state a claim and was fully aware that he had on the date of filing ... [U]nless the “struck out” in the Northern District. See also Flemming v. prospect of such a future assault is so New York, No. 05–CV–406 (DNH), at 2–3 (N.D.N.Y. Oct. 25, specific and/or likely as to be deemed 2005); Flemming v. New York, No. 06–CV–55 (DNH), at 2–3 real, such an allegation will not suffice (N.D.N.Y. Apr. 13, 2006); and Flemming v. Wright, No. 06– to allege an ‘imminent danger’ on CV–86 (GLS)(GJD), at 2–3 (N.D.N.Y. Apr. 28, 2006). the date of the filing. This point of law is consistent with the rather Additionally, Flemming has failed specifically to plead facts well-established rule that the imminent sufficient to place him within the imminent danger exception danger claimed by the inmate must provided by § 1915(g), which is applicable “[w]hen a threat be real, and not merely speculative or or prison condition is real and proximate, and when the hypothetical. potential consequence is ‘serious physical injury.’ “ Lewis, 279 F.3d at 531. Flemming proffers vague, general, and unspecified allegations of harm. See, e.g., Dkt. No. 38 at Id. (internal quotation marks and citations omitted) (emphasis 2 (“Plaintiff['s] condition is unsafe and cruel and unusual in original). Therefore, Flemming's contentions of constant punishment. Plaintiff is in constant fear of violence by fear of harm, without anything pointing to a specific threat of defendants and other staff in retaliation and conspiracy, this harm or identifiable danger to his health, are insufficient to put Flemming in imminent danger to plaintiff['s] well-being establish a danger that is neither speculative nor hypothetical. and without the opportunity to seek other promising future.”). However, such allegations were contained in Flemming's Moreover, the majority of Flemming's submissions do not additional submissions, and not within the complaint, where address the imminent danger exception, as they primarily the court is instructed to look to determine whether an inmate contain legal arguments about the substantive issues. See has qualified for the imminent danger exception. See Avent v. Dkt. No. 34 (enclosing over seventy pages of exhibits and a Fisher, No. 07–CV–1135 (DNH/GHL), 2008 WL 5000041, memorandum of law outlining the legal claims and arguments at *3 (N.D.N.Y. Nov. 20, 2008) (“[W]hen determining surrounding the constitutional merits). However, when the whether a prisoner has qualified for the ‘imminent danger’ IFP argument is addressed outside of the vague sentence exception, courts look at the non-conclusory allegations in previously identified, Flemming contends that money should the plaintiff's complaint.”) (citations omitted). The complaint not be a motivating factor for dismissal, completely omitting was void of any such allegations. Therefore, Flemming any proffer of reasons why he is in imminent danger. Dkt. No. failed to establish any plausible indication of imminent harm, 40 at 3–4 (“The money is not going to change the case, so especially considering the fact that the excessive force and whether if the money is not paid, it will be paid ... Plaintiff medical treatment provided immediately thereafter, occurred ask for counsel pro bono and then the lawyer can pay for this four years prior to the filing of the amended complaint. case to move forward.”). *3 Even had these allegations been contained in the Flemming's concerns that the imminent danger provision and complaint, they would be insufficient to establish the IFP requirements would foreclose important cases are without imminent danger exception due to their lack of plausibility merit. The Second Circuit has already determined such and specificity. See Id., 2008 WL 5000041, at *5–6. As arguments unavailing because the imminent danger exception explained in Avent, “does not prevent prisoners from filing civil actions, it merely prohibits them from enjoying [IFP] status. The imminent danger exception, which permits ... successive filings that (2d Cir.2007). Accordingly, Flemming is not foreclosed from 1. Flemming's IFP status be REVOKED; and bringing the case if he provides the filing fee or if he had specifically pled imminent danger, an exception to which his 2. This action be DISMISSED as to all claims and all defendants unless Flemming pays the filing fee of $350.00 contentions have failed to conform. within thirty (30) days of the entry of a final order by the district court. Furthermore, dismissal is not precluded by the fact that Flemming has already been granted IFP status in this action. Pursuant to 28 U.S.C. § 636(b)(1), the parties may When a court becomes aware of three prior strikes only after lodge written objections to the foregoing report. Such granting IFP status, it is appropriate to revoke that status objections shall be filed with the Clerk of the Court and bar the complaint under § 1915(g). See McFadden, 16 “within fourteen (14) days after being served with a copy F.Supp.2d at 247. Therefore, it is recommended that (1) of the ... recommendation.” N.Y.N.D.L.R. 72 .1(c) (citing the order granting IFP status to Flemming (Dkt. No. 5) be vacated, and (2) Flemming's complaint be conditionally 28 U.S.C. § 636(b)(1)(B)-(C)). FAILURE TO OBJECT dismissed unless he pays the filing fee of $350.00 within thirty TO THIS REPORT WITHIN FOURTEEN DAYS WILL (30) days of the entry of a final order by the district court. PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Small v. Sec'y of HHS, 892 F.2d 15 (2d Cir.1989); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). III. Conclusion *4 For the reasons stated above, it is hereby All Citations RECOMMENDED that defendants' motion to dismiss (Dkt. No. 33) be GRANTED and that: Not Reported in F.Supp.2d, 2010 WL 3724031 End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works. 2019 WL 1409938 II. BACKGROUND Only the Westlaw citation is currently available. A. Evidence Before the Court United States District Court, N.D. New York. On June 1, 2018, Commissioner Swarts moved for summary judgment, (Dkt. No. 201), and included a Statement of Steven D. BURDICK, Plaintiff, Material Facts pursuant to Local Rule 7.1(a)(3), (Dkt. No. v. 201-1). The motion also notified Plaintiff of the consequences David SWARTS, James F. Darling, Ruell Todd, Oswego of not properly responding, pursuant to Rule 56(e) of County, and John and Jane Doe 1-10, Defendants. the Federal Rules of Civil Procedure and Local Rule 56.2. (Dkt. No. 201, p. 1). However, Plaintiff's opposition 5:12-cv-1711 (NAM/DEP) does not specifically respond to Commissioner Swarts's | Statement of Material Facts; rather Plaintiff “relies on his Signed 03/28/2019 statement of material facts contained within his third amended complaint.” (Dkt. No. 208, p. 2). Similarly, on July 31, 2018, Attorneys and Law Firms the County Defendants moved for summary judgment, (Dkt. Steven D. Burdick, 4102 State Route 3, Fulton, New York No. 209), and included a Statement of Material Facts, (Dkt. 13069, Plaintiff, pro se. No. 209-20). Counsel affirms that Plaintiff was served with the Court's form Notification of the Consequences of Failing Office of Frank W. Miller, Frank W. Miller, Esq., of to Respond to a Summary Judgment Motion, (Dkt. No. counsel, Christopher M. Militello, Esq., of counsel, 6575 210). Once again, Plaintiff's opposition does not specifically Kirkville Road, East Syracuse, New York 13057, Attorney for respond to the movants' Statement of Material Facts; rather Defendants Oswego County, Todd, and Darling. Plaintiff sets out his own version of the facts in memoranda of law, without citing any evidence, and attaches several Office of Attorney General, State of New York, Timothy P. exhibits. (Dkt. Nos. 216, 216-1). Plaintiff later submitted an Mulvey, Esq., of counsel, 615 Erie Boulevard West, Suite additional memorandum, (Dkt. No. 220), which Defendants 102, Syracuse, New York 13204, Attorney for Defendant move to strike as “an improper surreply filed without Swarts. leave.” (Dkt. No. 222). The additional memorandum appears to be simply a notarized version of an earlier one. (See Dkt. No. 216). Neither memorandum is sworn under oath, MEMORANDUM-DECISION AND ORDER or declared under penalty of perjury pursuant to 28 U.S.C. § 1746. Therefore, neither memorandum is admissible as Norman A. Mordue, Senior U.S. District Judge evidence. See also Hughes v. Elmira College, 584 F.Supp.2d I. INTRODUCTION 588, 590 (W.D.N.Y. 2008) (finding that the pro se plaintiff's *1 Plaintiff Steven D. Burdick, who at one point in this statement and memorandum of law were unsworn and litigation was represented by counsel but is now proceeding inadmissible). Accordingly, Defendants' motion to strike is pro se, brings this action under 42 U.S.C. § 1983 asserting denied as moot. claims against Defendants David Swarts, the former New York State Commissioner of Motor Vehicles (“Commissioner Under these circumstances, the Court may accept Defendants' Swarts”), Oswego County, retired Oswego County Sheriff statements of facts as true where appropriate, supported by Ruell Todd (“Sheriff Todd”), and Oswego County Deputy the record, and unchallenged by Plaintiff with admissible Sheriff James F. Darling (“Deputy Darling”) (collectively, the evidence.1 See Champion v. Artuz, 76 F.3d 483, 485 (2d “Oswego County defendants”), related to a traffic stop and Cir. 1996) (reasoning that even pro se litigants “should be on subsequent arrest on November 22, 2009. (Dkt. No. 157). notice from the very publication of Rule 56(e) that a party Now before the Court are Defendants' motions for summary faced with a summary judgment motion may not rest upon judgment. (Dkt. Nos. 201, 209). Plaintiff opposes the motions. the mere allegations or denials of the party's pleading and that (Dkt. Nos. 208, 216, 220). Defendants' motions are granted, if the party does not respond properly, summary judgment, if for the reasons that follow. appropriate, shall be entered against him”) (quoting Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988)); Riehl v. Martin, a party has failed to respond to the movant's statement of 8). Plaintiff pulled the van over into the parking lot. (Id., ¶ 9). material facts in the manner required under N.D.N.Y. L.R. Deputy Darling asked Plaintiff about the missing inspection 7.1(a)(3), the facts in the movant's statement will be accepted sticker. (Id., ¶ 10). Plaintiff told Deputy Darling that the as true (1) to the extent they are supported by evidence in the sticker must have fallen off. (Id., ¶ 11). Deputy Darling asked record, and (2) the nonmovant, if proceeding pro se, has been Plaintiff to provide proof that the van had been inspected. (Id., specifically advised of the possible consequences of failing ¶ 12). Plaintiff told Deputy Darling that he did not have the to respond to the motion.”), report-recommendation adopted, inspection paperwork. (Id., ¶¶ 13–14). 2014 WL 1289601, 2014 U.S. Dist. LEXIS 42870 (N.D.N.Y. Mar. 31, 2014). Deputy Darling told Plaintiff that he would give Plaintiff a ticket, and Deputy Darling asked Plaintiff for his driver's 1 Although Plaintiff is now appearing pro se, it license, registration card, and proof of insurance. (Id., ¶¶ 15– is worth noting that this case is the second one 16). Plaintiff did not have his driver's license with him, and he Plaintiff has pursued to the summary judgment did not have a current valid insurance card for the van or the stage in federal court in the Northern District of registration card for the van. (Id., ¶¶ 17–19). Deputy Darling New York. See Burdick v. Kurilovitch, et al., No. went to his patrol car and checked a computer system for 14 Civ. 1254. vehicle and personal data from the DMV concerning Plaintiff. (Id., ¶ 20). The information returned in response to the inquiry *2 While the Court “is not required to consider what the was that Plaintiff's driver's license was currently suspended. parties fail to point out,” in deference to Plaintiff's pro se (Id., ¶ 21). status and out of an abundance of caution, the Court has nevertheless conducted “an assiduous review of the record” to When Deputy Darling returned to the van, he found Plaintiff determine whether there is evidence that might support any of sitting in the driver's seat of the van with his eighteen-month Plaintiff's claims. Holtz v. Rockefeller & Co., 258 F.3d 62, 73 old child in his lap. (Dkt. No. 209-3, p. 10). According (2d Cir. 2001). Therefore, the following facts are largely taken to Deputy Darling, he told Plaintiff that his license was from Defendants' statements of facts and supporting evidence, suspended and that he had to place the child in the passenger's Plaintiff's deposition and trial testimony, and the evidence seat and to step out of the van. (Id.). Deputy Darling testified submitted by Plaintiff, to the extent it is in admissible form. that Plaintiff did not put the child aside or get out of the van as instructed, but rather said that his license was not suspended, and it was “taken care of.” (Id.). Deputy Darling testified that B. Plaintiff's License Suspension Plaintiff repeatedly refused to get out of the van, saying “No, Plaintiff is a tow truck operator who resides in Oswego I'm not getting out.” (Id., p. 13). Deputy Darling testified that County, New York. (Dkt. No. 201-1, ¶ 6). On January 14, Plaintiff continued to hold the child. (Id.). 2009, Plaintiff was issued a traffic ticket for towing on the New York State Thruway without a permit. (Dkt. No. 209-2). According to Deputy Darling, Plaintiff then stepped out of Thereafter, Plaintiff's driver's license was suspended on or the van with the child, lifted the child up away from his body about July 3, 2009. (Id.). Plaintiff testified that he paid the toward Deputy Darling, pulled the child back to his body, got ticket, faxed the receipt to the Fulton Department of Motor back in the van, and sat back in the driver's seat with the child Vehicles (“DMV”), and was told “you're all set.” (Dkt. No. on his lap again. (Id.). Plaintiff then continued to argue with 209-4, pp. 15–16). Deputy Darling. (Id.). Deputy Darling testified that he had to tell Plaintiff to step out of the van a total of ten times. (Id., p. C. Plaintiff's Arrest 15). Eventually, Plaintiff put the child in the passenger's seat, On November 22, 2009, Plaintiff drove a van to a vehicle and Deputy Darling arrested him and took him into custody. checkpoint on State Route 49 in Central Square, Oswego (Id., p. 16). County, which was monitored by Defendant Darling, a deputy employed by Defendant Oswego County in its Sheriff's *3 Plaintiff admitted that, on November 22, 2009, when Department. (Dkt. No. 209-20, ¶¶ 2, 5–6). The van Plaintiff Deputy Darling first instructed him to put the child aside and drove had no inspection sticker on it. (Id., ¶ 7). Deputy step out of the van because he was under arrest, he did not Darling noticed the inspection sticker was missing and put the child aside or get out of the vehicle, and instead told Van Buren, New York had been paid. (See Dkt. No. 209-4, 2) endangering the welfare of a child; 3) obstruction of pp. 15–18; Dkt. No. 209-5, pp. 2–3). Plaintiff further testified governmental administration in the second degree; and 4) that Deputy Darling informed him again that he was under vehicle registration and inspection violations. (Dkt. No. arrest and to put his child to the side, but Plaintiff refused 209-13). and proposed that Deputy Darling call a tow truck and just give Plaintiff a traffic ticket. (Dkt. No. 209-5, p. 3). Plaintiff Following his arraignment, Plaintiff called Defendant Todd, testified that he had been pulled over for the same thing three the Sheriff of Oswego County, and asked to meet with him months earlier, that he had gone to the DMV and taken care concerning the arrest and charges. (Dkt. No. 209-20, ¶¶ 3, 39). of it, and that he told Deputy Darling “it's a mistake.” (Id.). Sheriff Todd advised Plaintiff it would not be in Plaintiff's best Plaintiff testified that Deputy Darling again told him that interest for them to meet, and that any admissions Plaintiff he was under arrest and to put the child aside, but Plaintiff made to Sheriff Todd could be used against him in the criminal refused because he wanted to first put the child in a car seat. case. (Id., ¶ 39). Plaintiff insisted, and they met on November (Id.). Plaintiff testified that Deputy Darling again repeated the 24, 2009. (Id., ¶¶ 39–40). Sheriff Todd began the meeting instruction, and Plaintiff finally got out. (Id.). by reminding Plaintiff that any admissions he made could be used against him. (Id., ¶ 41). During the meeting, Plaintiff According to Deputy Darling, Plaintiff's positioning of made several admissions, which Sheriff Todd reported to the the child delayed the arrest because Deputy Darling was Oswego County District Attorney's Office in the form of a concerned for the child's safety. (Dkt. No. 209-3, p. 17). “Notice of Intent to Use Admission or Confession” pursuant Deputy Darling testified that, before the situation escalated, to New York Criminal Procedure Law § 710.30 (or “710.30 he had intended to arrest Plaintiff and take him into custody in notice”). (Dkt. No. 209-12). The 710.30 notice stated in his patrol car on a charge of aggravated unlicensed operation relevant part: “Admissions of no insp. sticker, no letter saying of a motor vehicle in the third degree, issue him traffic suspension was lifted. Admissions to holding child in front of tickets, and then release him. (Id., pp. 15–16). After Plaintiff him and refusing to get out of van.” (Id.). Later, on August resisted his instructions to step out of the van and put the 26, 2010, Defendants Darling and Todd also testified at a child aside, and then held the child between himself and the Huntley hearing, which concerned the admissibility of certain officer, Deputy Darling decided to arrest Plaintiff and take statements made by Plaintiff. (Dkt. No. 209-11). him into custody for arraignment upon charges of obstruction of governmental administration and endangering the welfare *4 On August 26, 2011, Plaintiff appeared for a criminal of a child, as well as the aggravated unlicensed operation of trial before a jury on charges of endangering the welfare a motor vehicle charge. (Id.). of a child, obstruction of governmental administration, and vehicle registration and inspection violations. (Dkt. Nos. According to Ronald L. Casselman, on November 22, 2009, 209-3, 209-4). Plaintiff claims that the aggravated unlicensed he received a call from the police to “go to Central Square and operation charge was dismissed by the judge in his criminal bring the Burdick company tow truck to tow Steve Burdick's case a couple weeks before the trial. (Dkt. No. 209-6, p. 2). car and get the kids as Steve was an unlicensed driver and Defendants Darling and Todd testified at the trial concerning could not operate the car.” (Dkt. No. 216-1, p. 23). When the events leading up to Plaintiff's arrest on November 22, Casselman arrived, he found Plaintiff handcuffed in the back 2009, and Plaintiff's admissions on November 24, 2009. (Dkt. of an Oswego County Sheriff's car. (Id.). Casselman states Nos. 209-3, 209-4). that he “told the Sheriff there must be some mix-up [about the suspended license] because Steve had paid that fine.” (Id.). Among other things, Deputy Darling testified that he told Plaintiff's wife arrived at the scene and took the kids, while Plaintiff to step out of the vehicle ten times before Plaintiff Casselman towed Plaintiff's vehicle. (Id.). complied, and that Plaintiff held onto the child, delaying Plaintiff's arrest. (Dkt. No. 209-3, pp. 15–17). Among other things, Sheriff Todd testified that Plaintiff admitted that: he D. Plaintiff's Prosecution did not have paperwork with him on November 22, 2009 Plaintiff was arraigned the same day as his arrest, November showing that he had fixed his suspended license; that he 22, 2009, at approximately 2:25 p.m., which was not long refused to exit the vehicle, and that “he picked the child up and after Deputy Darling brought him to the police station. (Dkt. put it in front of him.” (Dkt. No. 209-4, pp. 10–11). Sheriff Plaintiff “just didn't do what he was asked to do.” (Id., p. 10). judgment may be granted only if all the submissions taken together “show that there is no genuine issue as to any On August 27, 2011, a jury convicted Plaintiff of obstruction material fact and that the moving party is entitled to judgment of governmental administration, as well as failure to produce as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, a registration certificate and operating an uninspected motor 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); accord Anderson vehicle. (Dkt. No. 209-4, pp. 23–24). The jury acquitted v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, Plaintiff of endangering the welfare of a child. (Id.). 91 L.Ed.2d 202 (1986). The moving party bears the initial burden of demonstrating “the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323, 106 S.Ct. 2548. E. Plaintiff's Appeal A fact is “material” if it “might affect the outcome of the Plaintiff appealed his convictions, and on March 3, 2014, an suit under the governing law,” and is genuinely in dispute Oswego County court overturned the convictions due to an “if the evidence is such that a reasonable jury could return error in jury selection by the judge in the criminal trial. (Dkt. a verdict for the nonmoving party.” Anderson, 477 U.S. at No. 209-9). The court rejected various arguments as to the 248, 106 S.Ct. 2505; see also Jeffreys v. City of New York., merits of the charges and remanded for a new trial. (Id.). 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson). The By decision dated April 26, 2016, a judge of the Hastings movant may meet this burden by showing that the nonmoving Town Court dismissed the surviving charges (obstruction of party has “fail[ed] to make a showing sufficient to establish governmental administration, failure to produce a registration the existence of an element essential to that party's case, certificate, and operating an uninspected motor vehicle) in the and on which that party will bear the burden of proof at interests of justice pursuant to New York Criminal Procedure trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548; see also Law § 170.40. (Dkt. No. 209-10). Among other things, the Selevan v. N.Y. Thruway Auth., 711 F.3d 253, 256 (2d Cir. judge found that: 2013) (summary judgment appropriate where the non-moving party fails to “come forth with evidence sufficient to permit 1) No arrest would have arisen should the DMV database a reasonable juror to return a verdict in his or her favor on been properly updated. an essential element of a claim”) (internal quotation marks 2) The only harm caused by the offense was to the equities omitted). of the Defendant for the costs of his defense, which could be the responsibility of the NYS DMV. *5 If the moving party meets this burden, the nonmoving party must “set forth specific facts showing ... a genuine 3) Any evidence in this case is secondary to the cause and issue for trial.” Anderson, 477 U.S. at 248, 250, 106 S.Ct. effect relationship of the NYS DMV failure to update 2505; see also Celotex, 477 U.S. at 323–24, 106 S.Ct. 2548; their systems. Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). “When ruling on a summary judgment motion, the district court must 4) The Court does not see misconduct on behalf of any construe the facts in the light most favorable to the non- Police Agency, but rather it appears that the Defendants moving party and must resolve all ambiguities and draw all actions could have been more amiable in order to resolve reasonable inferences against the movant.” Dallas Aerospace, the issues presented. Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). Still, 5) Quite possibly the end result would be one of a fine and the nonmoving party “must do more than simply show that surcharge, both of which the Court feels New York State there is some metaphysical doubt as to the material facts,” would rather see justice served. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and cannot 6) The Court sees no useful purpose regarding a judgement rely on “mere speculation or conjecture as to the true nature of conviction. of the facts to overcome a motion for summary judgment.” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986) (Id.). (quoting Quarles v. Gen. Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985)). Furthermore, “[m]ere conclusory allegations or denials ... cannot by themselves create a genuine issue of III. STANDARD OF REVIEW material fact where none would otherwise exist.” Hicks v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995) (alterations in Murphy v. Lynn, 118 F.3d 938, 946 (2d Cir. 1997)); see also original) (internal quotation marks and citations omitted)). Perez v. Duran, 962 F.Supp.2d 533, 541 (S.D.N.Y. 2013) (discussing seizure requirement and court appearances). IV. DISCUSSION Defendants argue that Plaintiff cannot show any As explained in the Court's Memorandum-Decision & Order unconstitutional detention for the federal malicious dated August 31, 2017, Plaintiff's remaining claims in this prosecution claim because “all the ‘seizures’ of which case are as follows: 1) as against Deputy Darling, federal Plaintiff could complain – any mandatory court appearances, and state law malicious prosecution and First Amendment and his trial – each time occurred due to the charge of retaliation; 2) as against Sheriff Todd, federal and state law obstructing governmental administration as well as the other claims for malicious prosecution and a federal claim for charges against him.” (Dkt. No. 209-21, p. 9). Defendants supervisory liability; 3) as against Oswego County, vicarious further argue that the charge for obstructing governmental liability under New York State law for the actions of Deputy administration “was not resolved favorably to Plaintiff Darling and Sheriff Todd; and 4) as against Commissioner because – following his conviction in the jury trial and Swarts and the John Doe Defendants, an apparent federal due the reversal on a technicality on appeal – that charge was process claim, with related claims for supervisory and Monell ultimately dismissed in the interests of justice.” (Id., p. 10). liability. (Dkt. Nos. 155, 157). The Court will discuss each Defendants argue that “[b]ecause any court appearances and claim in turn. the trial were all necessitated by a charge as to which there was no favorable termination, those ‘seizures’ could not form the basis of a malicious prosecution claim, and were all A. Malicious Prosecution constitutional as a matter of law.” (Id.). Plaintiff's opposition The Defendants argue that Plaintiff's Section 1983 malicious papers do not appear to respond to this argument. (Dkt. Nos. prosecution claim fails for several reasons, including: 1) 216, 218). the “for lack of an unconstitutional detention”; and 2) the immunity defenses applicable to their actions. (Dkt. No. *6 Here, the undisputed facts show that Plaintiff was 209-21, pp. 8–18). The elements of a malicious prosecution charged with: 1) aggravated unlicensed operation of a claim under New York law are: 1) the defendant initiated motor vehicle; 2) endangering the welfare of a child; a prosecution against the plaintiff; 2) the defendant lacked 3) obstruction of governmental administration; and 4) probable cause to believe the proceeding could succeed; 3) vehicle registration and inspection violations. (Dkt. No. the defendant acted with malice; and 4) the prosecution was 209-13). Further, the record shows that the first charge was terminated in the plaintiff's favor. See Rohman v. New York dismissed, (Dkt. No. 209-6), and a jury acquitted Plaintiff City Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000); Colon v. of child endangerment while convicting him of obstructing City of New York, 60 N.Y.2d 78, 82, 468 N.Y.S.2d 453, 455 governmental administration and the vehicle registration N.E.2d 1248 (1983). and inspection violations. (Dkt. No. 209-4, pp. 23–24). It is undisputed that following Plaintiff's appeal on various grounds, the Oswego County Court found reversible error 1. Unconstitutional Seizure in the trial court's jury selection process, reversed the judgment, and remanded for a new trial. (Dkt. No. 209-9). “When raising a malicious prosecution claim under Section Notably, the court rejected Plaintiff's argument that the jury's 1983, a plaintiff must also show a ‘seizure or other perversion conviction for obstruction of governmental administration of proper legal procedures implicating the claimant's personal was inconsistent with the acquittal for child endangerment. liberty and privacy interests under the Fourth Amendment.’ ” (Id., pp. 4–6). The court pointed out that: Mitchell v. City of New York, 841 F.3d 72, 79 (2d Cir. 2016) (quoting Washington v. County of Rockland, 373 F.3d 310, The People alleged that the defendant obstructed or 316 (2d Cir. 2004)). The issue is generally a matter of law prevented or attempted to prevent a police officer from for the court, and the Second Circuit has “consistently held arresting the defendant by holding an eighteen month old that a post-arraignment defendant who is ‘obligated to appear child up and put in front of him so that the police officer in court in connection with [criminal] charges whenever was not able to take the defendant into custody. Based upon the testimony of Officer Darling ..., the by the offense was to the equities of the Defendant for the jury could have found that the defendant obstructed, costs of his defense, which could be the responsibility of impaired, or perverted the administration of law or the NYS DMV.” (Id.). The court also highlighted that it other governmental function or prevented or attempted “does not see misconduct on behalf of any Police Agency, to prevent a public servant from performing an official but rather it appears that the Defendants actions could have function (i.e the defendant's lawful arrest), by means of been more amiable in order to resolve the issues.” (Id.). The intimidation, physical force, or interference (i.e. holding court concluded that it “sees no useful purpose regarding a a child out in front of him as a shield between himself judgment of conviction.” (Id.). This rationale for dismissal and the arresting officer), and that the defendant did so does not show that Plaintiff was innocent of the charges, intentionally. or that Defendants lacked probable cause. Based on the record, the Court finds that the charges against Plaintiff (Id., pp. 5–6). Rather than hold a new trial, a Town Justice for obstruction of governmental administration and vehicle dismissed the case pursuant to Section 170.40 of the New registration and inspection violations were not terminated in York State Rules of Criminal Procedure. (Dkt. No. 209-10). his favor. (See also Dkt. No. 155, p. 13). In dismissing the case in “furtherance of justice,” the court emphasized that “[n]o arrest would have arisen should the *7 That leaves two potentially viable charges for Plaintiff's DMV database been properly updated,” and that “[t]he only federal malicious prosecution claim: 1) endangering the harm caused by the offense was to the equities of the welfare of a child; and 2) aggravated unlicensed operation of Defendant for the costs of his defense, which could be a motor vehicle. As the Court previously noted, Plaintiff was the responsibility of the NYS DMV.” (Id.). The court also acquitted of the former, and the circumstances surrounding highlighted that it “does not see misconduct on behalf of the latter are not entirely clear. (See also Dkt. No. 155, p. 14). any Police Agency, but rather it appears that the Defendants However, Defendants correctly point out that further inquiry actions could have been more amiable in order to resolve on these charges is not necessary because Plaintiff's federal the issues.” (Id.). The court concluded that it “sees no useful malicious prosecution claim must rise or fall by showing an purpose regarding a judgment of conviction.” (Id.). unconstitutional seizure. The Second Circuit has held that a plaintiff cannot show such a seizure unless it was “solely As this Court previously observed, a dismissal pursuant to attributable” to the unlawful charges. Coleman v. City of Section 170.40 is not an acquittal and typically does not New York, 688 F. App'x 56, 58 (2d Cir. 2017). In that case, support a malicious prosecution claim. (Dkt. No. 155, p. 12). the plaintiff was charged with, among other things, assault, New York's highest court has held that “any termination of obstruction of governmental administration, reckless driving, a criminal prosecution, such that the criminal charges may and traffic violations. The Second Circuit sustained dismissal not be brought again, qualifies as a favorable termination, so of the plaintiff's malicious prosecution claim predicated on long as the circumstances surrounding the termination are not the assault charges because “[e]ven if the assault charges had inconsistent with the innocence of the accused.” Cantalino v. never been, [the plaintiff] still would have had the obligation Danner, 96 N.Y.2d 391, 729 N.Y.S.2d 405, 754 N.E.2d 164, to appear on account of the other criminal charges (which 167 (2001) (citing Smith-Hunter v. Harvey, 95 N.Y.2d 191, cannot support a malicious prosecution claim, because they 712 N.Y.S.2d 438, 734 N.E.2d 750, 755 (2000)). Ultimately, were indisputably supported by probable cause) and the “the question is whether, under the circumstances of each traffic code violations (which cannot support a malicious case, the disposition was inconsistent with the innocence of prosecution claim because they were terminated unfavorably the accused.” Id. to [the plaintiff] by [adjournment in contemplation of dismissal] ).” 688 F. App'x at 58. In this case, the circumstances surrounding the dismissal of the trial charges against Plaintiff are clear and undisputed. Likewise, in this case Plaintiff cannot sustain a federal As Defendants note, the Oswego County Court reversed malicious prosecution claim based on the child endangerment on the basis of a procedural error with jury selection, but and aggravated unlicensed operation charges because the rejected Plaintiff's argument on the merits of the obstruction record shows that, even if those charges had never been charge. (Dkt. No. 209-9, pp. 5–6). In dismissing the case brought, he would have had the obligation to appear in in “furtherance of justice,” the trial court emphasized that court on the obstruction of governmental administration 209-13). As discussed above, the obstruction of governmental pursuant to People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d administration charge cannot support a federal malicious 838, 204 N.E.2d 179 (1965) (providing a criminal defendant prosecution claim because it was not terminated in Plaintiff's with a pre-trial hearing to determine whether statements are favor. Accordingly, based on the undisputed facts, Plaintiff's admissible). The Second Circuit has recognized that “police federal malicious prosecution claim must be dismissed. See officers who testify at adversarial pretrial proceedings are also Warner v. Freeman, No. 14 Civ. 1192, 2017 WL entitled to absolute immunity from liability based on that 4227655, at *2, 2017 U.S. Dist. LEXIS 154743 (D. Conn. testimony.” Daloia v. Rose, 849 F.2d 74, 76 (2d Cir. 1988). Sept. 22, 2017) (granting summary judgment on malicious Like a suppression hearing, the purpose of the Huntley prosecution claim where the plaintiff failed to show “that hearing was to determine the admissibility of statements he suffered a post-arraignment constitutionally cognizable made by Plaintiff (then defendant). (Dkt. No. 209-11). Thus, deprivation of liberty attributable to the criminal trespass Defendants Darling and Todd are absolutely immune for all charge”); Flynn-Rodriguez v. Cheng, No. 14 Civ. 2287, 2017 of their courtroom testimony in the criminal case against WL 3278889, at *3, 2017 U.S. Dist. LEXIS 120775 (E.D.N.Y. Plaintiff.2 See also Coggins v. Buonora, 776 F.3d 108, Aug. 1, 2017) (“Though Ms. Flynn-Rodriguez suffered a 113 (2d Cir. 2015) (finding that the defendant officer was deprivation of liberty, the resisting arrest charge was not the entitled to absolute immunity for grand jury testimony, but sole cause of that deprivation; the deprivation was also caused not for allegedly false statements and reports that “laid the by other charges that were supported by probable cause. The groundwork” for indictment). malicious prosecution claim is dismissed.”); Othman v. City of New York, No. 13 Civ. 4771, 2015 WL 1915754, at *6, 2015 2 The record shows that Deputy Darling did not act U.S. Dist. LEXIS 54903 (E.D.N.Y. Apr. 27, 2015) (dismissing as a “complaining witness” at the hearing, which claim of malicious prosecution because the plaintiff failed to was focused on Plaintiff's admissions. See Rehberg, allege “any deprivation of liberty that stems exclusively from 566 U.S. at 370, 132 S.Ct. 1497. those charges that may have terminated in his favor”). *8 The remaining question is whether Defendants Darling and Todd are immune from liability for their other actions related to the prosecution. As to Deputy Darling, the record 2. Immunity Defenses shows that he provided information about Plaintiff's arrest, Moreover, even if Plaintiff could show evidence of an which led to Plaintiff's arraignment shortly thereafter on unconstitutional seizure, his malicious prosecution claim November 22, 2009. (Dkt. No. 209-13). The Defendants against Defendants Darling and Todd would fail because they argue that Deputy Darling had at least “arguable probable are entitled to absolute immunity and/or qualified immunity cause,” and therefore he is entitled to qualified immunity for for their actions. It is well-established that in Section 1983 initiating Plaintiff's prosecution. (Dkt. No. 209-21, pp. 16, actions, all witnesses, including police officers, are absolutely 22). immune from civil liability based on their testimony in judicial proceedings. Briscoe v. LaHue, 460 U.S. 325, 343, “Qualified immunity attaches when an official's conduct 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). The Supreme Court does not violate clearly established statutory or constitutional observed that “[s]ubjecting government officials, such as rights of which a reasonable person would have known.” police officers, to damages liability under § 1983 for their White v. Pauly, ––– U.S. ––––, 137 S.Ct. 548, 551, 196 testimony might undermine not only their contribution to the L.Ed.2d 463 (2017) (per curiam) (internal quotation marks judicial process but also the effective performance of their omitted). “Qualified immunity protects public officials from other public duties.” Id. In judicial proceedings, the deterrent liability for civil damages when one of two conditions is of potential civil liability is unnecessary to prevent false satisfied: (a) the defendant's action did not violate clearly testimony because perjury is a serious criminal offense. See established law, or (b) it was objectively reasonable for the Rehberg v. Paulk, 566 U.S. 356, 367, 132 S.Ct. 1497, 182 defendant to believe that his action did not violate such L.Ed.2d 593 (2012). Therefore, Defendants Darling and Todd law.” Garcia v. Does, 779 F.3d 84, 92 (quoting Russo v. City are entitled to absolute immunity for their testimony at trial, of Bridgeport, 479 F.3d 196, 211 (2d Cir. 2007)); see also even if it was false. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Where the relevant facts are not in of law. See Warren v. Dwyer, 906 F.2d 70, 76 (2d Cir. 1990). motor vehicle in the third degree. Probable cause is a “complete defense to a constitutional 3 Although Plaintiff submitted an affidavit from claim of malicious prosecution.” Betts v. Shearman, 751 Casselman, who allegedly informed officers at the F.3d 78, 82 (2d Cir. 2014) (citations omitted)). Moreover, scene that Plaintiff had paid the fine and “there qualified immunity is a defense on the same claim if there must be some mix-up” about the license, Deputy was arguable probable cause, which “exists if either (a) it was Darling was under no obligation to credit that objectively reasonable for the officer to believe that probable explanation, absent supporting evidence. cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met.” Garcia, *9 Second, “a person is guilty of obstructing governmental 779 F.3d at 92 (citation omitted). In determining whether administration when he intentionally obstructs, impairs or an officer's challenged conduct was objectively reasonable, perverts the administration of law or other governmental courts consider the information possessed by the officer at the function or prevents or attempts to prevent a public time of that conduct, but not the officer's “subjective intent, servant from performing an official function, by means of motives, or beliefs.” Id. In deciding qualified immunity, the intimidation, physical force or interference, or by means Court will consider the facts available to Deputy Darling at of any independently unlawful act....” N.Y. Penal Law § the time of arraignment, on each charge. 195.05. In this case, it is undisputed that Plaintiff refused repeated orders from Deputy Darling to get out of his vehicle. First, “a person is guilty of the offense of aggravated (See Dkt. No. 209-4, pp. 15–18; Dkt. No. 209-5, pp. 2– unlicensed operation of a motor vehicle in the third degree 3; Dkt. No. 209-12). It also undisputed that Plaintiff held when such person operates a motor vehicle upon a public onto his child while doing so. (Id.). Based on these facts, highway while knowing or having reason to know that such it was objectively reasonable for Deputy Darling to believe person's license or privilege of operating such motor vehicle on November 22, 2009 that probable cause existed to charge in this state or privilege of obtaining a license to operate Plaintiff for obstruction of governmental administration. such motor vehicle issued by the commissioner is suspended, revoked or otherwise withdrawn by the commissioner.” N.Y. Third, as relevant here, a person is guilty of endangering the Veh. & Traf. Law § 511(a). It is undisputed that at the welfare of a child when he “knowingly acts in a manner likely time of Plaintiff's arrest, Deputy Darling's computer check of to be injurious to the physical, mental or moral welfare of a the DMV database showed that Plaintiff's license had been child less than seventeen years old or directs or authorizes suspended, and that Plaintiff did not possess any paperwork such child to engage in an occupation involving a substantial showing otherwise. (Dkt. No. 209-3, pp. 9–10; Dkt. No. risk of danger to his or her life or health.” N.Y. Penal Law § 209-4, pp. 16–17; Dkt. No. 209-7, pp. 15–17; Dkt. No. 260.10(1). Again, it is undisputed that, while refusing Deputy 209-12). At the motion to dismiss stage, the Court observed Darling's orders to exit the vehicle, Plaintiff held onto his that it could not “determine whether and when Deputy child. (See Dkt. No. 209-4, pp. 15–18; Dkt. No. 209-5, pp. 2– Darling knew or should have known that plaintiff's license 3; Dkt. No. 209-12). Deputy Darling testified at the criminal was not suspended.” (Dkt. No. 155, p. 13). Now on summary trial that the child prevented him from arresting Plaintiff, and judgment, the evidence shows that Deputy Darling relied on that he was concerned about injuring the child. (Dkt. No. the DMV information about Plaintiff's license, both for the 209-3, p. 17). While Plaintiff claims that he held on for the arrest and the arraignment, which occurred in a short span on child's safety, based on the facts available to Deputy Darling at the same day. (Dkt. No. 209-17, ¶ 13; Dkt. No. 209-8, p. 12). the time, Plaintiff's conduct could also be viewed as likely to Although Plaintiff alleges that Deputy Darling should have be injurious to the child. At a minimum, officers of reasonable known that the DMV information was unreliable, (Dkt. No. competence could disagree on whether there was probable 157, ¶ 220), he has not adduced any evidence in support of cause to charge Plaintiff for endangering the welfare of a this theory, nor has he shown that Deputy Darling learned of child. the mistake before Plaintiff's arraignment.3 Based on these In sum, based on the undisputed facts, there was arguable facts, it was objectively reasonable for Deputy Darling to probable cause to charge Plaintiff with aggravated unlicensed believe on November 22, 2009 that probable cause existed operation of a motor vehicle, endangering the welfare immunity for initiating the prosecution on those charges. claim that Deputy Darling had a retaliatory motive when he arrested Plaintiff lacks merit.” (Id.). The Court noted As to Sheriff Todd, the record shows that, after arraignment, that “the question of whether Deputy Darling had probable he met with Plaintiff on November 24, 2009 to discuss the cause to charge plaintiff with endangering the welfare of a charges. (Dkt. No. 209-11, pp. 16–17; Dkt. No. 209-12). child and obstructing governmental administration cannot be Plaintiff requested the meeting and Sherriff Todd warned him determined on a motion addressed to the second amended that any admissions could be used against him. (Dkt. No. complaint.” (Id.). Further, the Court observed that, based on 209-20, ¶¶ 39–40). In the meeting, Plaintiff made a series the pleadings, it was unclear if Deputy Darling at some point of admissions, which Sheriff Todd reported to the Oswego “knew or should have known that in fact plaintiff's license was County District Attorney's Office, in the form of a “Notice valid,” which could support a retaliation claim for initiating of Intent to Use Admission or Confession” pursuant to New and continuing the prosecution for aggravated unlicensed York Criminal Procedure Law § 710.30 (or “710.30 notice”). operation of a motor vehicle. (Id.). (Dkt. No. 209-12). The 710.30 notice stated in relevant part: “Admissions of no insp. sticker, no letter saying suspension 4 The Court dismissed any First Amendment was lifted. Admissions to holding child in front of him retaliation claim against Sheriff Todd. (Dkt. No. and refusing to get out of van.” (Id.). The 710.30 notice is 155, p. 21). consistent with Plaintiff's own testimony, (Dkt. No. 209-4, pp. 15–18), and Plaintiff has not raised an issue of fact otherwise. The Defendants argue that Plaintiff's First Amendment Therefore, it was objectively reasonable for Sheriff Todd to retaliation claim against Deputy Darling must fail for several believe that his action, in preparing the notice and reporting reasons including: 1) lack of any evidence of retaliatory it to the District Attorney's Office, did not violate Plaintiff's causation”; and 2) the immunity defenses applicable to rights or clearly established law. Accordingly, Sheriff Todd their actions. (Dkt. No. 209-21, pp. 21–22). The latter is entitled to qualified immunity for this action. Cf. Coggins, argument is dispositive here. Plaintiff's First Amendment 776 F.3d at 114 (finding that qualified immunity did not shield claim runs up against the same immunity defenses as his the defendant officer on malicious prosecution claim given claim for malicious prosecution. As discussed above, Deputy evidence that he made false statements to the district attorney, Darling is absolutely immune for his testimony in the because such conduct “constitute[s] a violation of clearly judicial proceedings against Plaintiff, which therefore, cannot established law, and no objectively reasonable public official support Plaintiff's First Amendment retaliation claim. Further, could have thought otherwise”). Deputy Darling is entitled to qualified immunity for charging Plaintiff and initiating the prosecution, as discussed above. Accordingly, Plaintiff's First Amendment retaliation claim B. First Amendment Retaliation fails for these same reasons. See also Collins v. City of New *10 To prevail on a First Amendment retaliation claim, a York, 295 F.Supp.3d 350, 368 (S.D.N.Y. 2018) (“Because plaintiff must show: 1) that he has an interest protected by the Court has already concluded that the Defendants had the First Amendment; 2) that the defendant's actions were arguable probable cause to arrest the Plaintiffs for disorderly motivated or substantially caused by the plaintiff's exercise conduct, ... the Court finds that the Defendants are entitled to of that right; and 3) that the defendant's actions effectively qualified immunity on Plaintiffs' First Amendment retaliation chilled the exercise of his First Amendment right or caused claim on the basis of that same arguable probable cause.”). some other type of harm. See Gill v. Pidlypchak, 389 F.3d 379, 383 (2d Cir. 2004); Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir. 2001). C. Supervisory Liability Against Sheriff Todd As the Court previously stated, Plaintiff pled a federal claim As previously noted, Plaintiff could have a potential First for supervisory liability against Sheriff Todd, based on his Amendment retaliation claim based on the theory that, after alleged failure to remedy an ongoing violation of Plaintiff's he spoke out and verbally challenged Deputy Darling at the constitutional rights, specifically Deputy Darling's allegedly time of the arrest, Deputy Darling retaliated by initiating malicious and retaliatory prosecution of Plaintiff. (Dkt. No. the prosecution against Plaintiff for aggravated unlicensed 155, pp. 20–21). Under Section 1983, “a supervisor may not operation of a motor vehicle, obstruction of governmental be held liable merely because his subordinate committed a as supervisor to Deputy Darling if Plaintiff can show that claims.”). Sherriff Todd, “after being informed of the violation through a report or appeal, failed to remedy the wrong.” Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). D. Due Process Claim Plaintiff alleges that Commissioner Swarts and the John Doe *11 Plaintiff's theory appears to be as follows: 1) Deputy Defendants (apparently unknown employees of the DMV) Darling initiated the prosecution on November 22, 2009; violated his rights to procedural and substantive due process 2) Sherriff Todd met with Plaintiff on November 24, 2009 under the Constitution by failing to lift Plaintiff's license and learned that the prosecution was unconstitutional; and 3) suspension, allowing it to remain in effect for eight months, Sheriff Todd did nothing to remedy the violation thereafter. and reporting his license as suspended to the police during (Dkt. No. 157, pp. 28–32). The Defendants argue that that time, when it was not. (Dkt. No. 157, pp. 17–23). Plaintiff Plaintiff's claim fails for several reasons, including that also alleges that Commissioner Swarts and the John Does are Deputy Darling did not engage in unconstitutional conduct, subject to supervisory liability because they were aware of the and that Sheriff Todd is entitled to qualified immunity license issue and failed to remedy it. (Id., pp. 23–24). Further, “because there was at least arguable probable cause as to all Plaintiff alleges that they exhibited deliberate indifference of the charges.” (Dkt. No. 209-21, p. 18). and their actions are the policy, custom, and practice of the DMV. (Id.). Once again, the above qualified immunity analysis dictates dismissal of Plaintiff's claim. The record shows that Sheriff In general, a procedural due process violation under Todd met with Plaintiff on November 24, 2009, at which the Fourteenth Amendment occurs when the government time Plaintiff discussed his November 22, 2009 arrest. (Dkt. deprives a person of a protected life, liberty, or property No. 209-11, pp. 16–17; Dkt. No. 209-12). Although Plaintiff interest without first providing notice and opportunity to be offered his version of events, he also made several important heard. Spinelli v. City of New York, 579 F.3d 160, 168 (2d Cir. admissions: 1) not having an inspection sticker; 2) not having 2009) (citing Sanitation and Recycling Indus., Inc. v. City of a letter saying his license suspension was lifted; 3) holding New York, 107 F.3d 985, 995 (2d Cir. 1997)). On the other his child between himself and the officer; and 4) refusing hand, substantive due process “protects against government to get out of the van when instructed by the officer. (Dkt. action that is arbitrary, conscience-shocking, or oppressive in No. 209-12). These admissions are consistent with Deputy a constitutional sense, but not against government action that Darling's testimony as to the factual basis for arresting and is ‘incorrect or ill-advised.’ ” Kaluczky v. City of White Plains, charging Plaintiff. (See Dkt. No. 209-3, pp. 7–17). Moreover, 57 F.3d 202, 211 (1995) (quoting Lowrance v. Achtyl, 20 F.3d even though Plaintiff tried to justify his actions and put them 529, 537 (2d Cir. 1994)). in context, these admissions are consistent with Plaintiff's own testimony. (Dkt. No. 209-4, pp. 15–18). *12 Commissioner Swarts argues that “the record is devoid of any facts that support personal involvement of former Based on the undisputed facts, there was at least arguable Commissioner Swarts in any constitutional violations.” (Dkt. probable cause for Deputy Darling to initiate prosecution on No. 201, p. 2). In response, Plaintiff states that Commissioner the charges for aggravated unlicensed operation of a motor Swarts “did either directly or indirectly violate Plaintiffs vehicle, endangering the welfare of a child, and obstruction constitutional rights by his actions/or lack of actions. of governmental administration, and the November 24, Defendant, Swarts, has personal knowledge of, and was in 2009 meeting did not suggest otherwise. Therefore, it direct supervisory command of the DMV personnel, and the was objectively reasonable for Sheriff Todd to believe policies and procedures utilized by the employees of the that Plaintiff did not suffer a constitutional violation that DMV[.]” (Dkt. No. 208). needed remedying. Accordingly, Sheriff Todd is entitled to qualified immunity on Plaintiff's supervisory liability claim. Personal involvement of an individual defendant “in alleged See also Levy v. City of New York, 935 F.Supp.2d 575, 593 constitutional deprivations is a prerequisite to an award of (E.D.N.Y. 2013) (“The Court concludes Sgt. Reed is entitled damages under § 1983.” Provost v. City of Newburgh, 262 to qualified immunity on Plaintiff's supervisory liability claim F.3d 146, 154 (2d Cir. 2001) (quoting Wright v. Smith, 21 F.3d for substantially the same reasons he is entitled to qualified 496, 501 (2d Cir. 1994)). Indeed, “a defendant in a § 1983 authority.” Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). is no evidence that he failed to act on information that “Because vicarious liability is inapplicable to ...§ 1983 suits,” unconstitutional acts were occurring. Moreover, there is Plaintiff must raise a genuine dispute as to whether “each no evidence as to who at the DMV failed to update the Government-official defendant, through the official's own database, much less that Commissioner Swarts supervised individual actions, has violated the Constitution.” Victory v. that person.6 Plaintiff repeatedly alleges that the DMV Pataki, 814 F.3d 47, 67 (2d Cir. 2016), as amended (Feb. 24, (led by Commissioner Swarts) delayed in lifting license 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. suspensions, which amounted to an unconstitutional policy, 1937, 173 L.Ed.2d 868 (2009)) (emphasis added). custom, and practice, (see Dkt. No. 157, ¶ 147), but he has not adduced any supporting evidence. Plaintiff's conclusory Here, Plaintiff has not adduced any evidence to show that assertions, while enough to state a claim, are not enough Commissioner Swarts directly participated in the alleged to survive summary judgment. See Kia P. v. McIntyre, 235 failure to lift Plaintiff's license suspension. In Commissioner F.3d 749, 763 (2d Cir. 2000) (“A plaintiff may not survive Swarts's sworn responses to Plaintiff interrogatories, he stated a properly asserted motion for summary judgment on the that he did not possess any meaningful information regarding basis of conclusory allegations alone.”); Shariff v. Poole, 689 the suspension of Plaintiff's license, the continuation of that F.Supp.2d 470, 476 (W.D.N.Y. 2010) (“[T]he pro se plaintiff suspension, or the specifics of the incident forming the must still establish the existence of genuine issues of material basis of this action. (Dkt. No. 195-1). Plaintiff's conclusory fact to survive a motion for summary judgment; the pro se assertions, unsupported by any evidence, are not enough to party's ‘bald assertion,’ when unsupported by evidence, is raise an issue of fact as to Commissioner Swarts's personal insufficient.”). involvement on a direct participation theory.5 6 Although Plaintiff alleges that unknown John/ 5 Plaintiff objects that he was not afforded the Jane Doe Defendants at the DMV failed to opportunity to take the deposition of Commissioner lift his suspension, he has not identified these Swarts, but United States Magistrate Judge David individuals or shown evidence of their involvement E. Peebles declined that request because there in infringing activity, and with discovery now was no evidence that Commissioner Swarts had closed, any claims against them must be dismissed. relevant information. (Dkt. No. 199, p. 7). See Blake v. Race, 487 F.Supp.2d 187, 192 n.1 (E.D.N.Y. 2007) (citing cases). Nor has Plaintiff adduced any evidence to show personal involvement of Commissioner Swarts under any of the other *13 Likewise, to the extent Plaintiff alleges a claim pursuant methods recognized by the Second Circuit. Besides direct to Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, participation, Plaintiff could show that: 1) the defendant, 56 L.Ed.2d 611 (1978), that claim must fail for the same after being informed of the violation through a report or reasons. Plaintiff's theory appears to be that Commissioner appeal, failed to remedy the wrong; 2) the defendant created Swarts, acting as official policymaker for the DMV, created a policy or custom under which unconstitutional practices the policy/practice whereby the DMV did not update their occurred, or allowed the continuance of such a policy or database, or ignored that policy/practice. (Dkt. No. 157, ¶ 94). custom; 3) the defendant was grossly negligent in supervising However, once again, Plaintiff has not adduced any evidence subordinates who committed the wrongful acts; or 4) the whatsoever that this policy/practice existed, much less that defendant exhibited deliberate indifference to the rights of Commissioner Swarts created or ignored it. For example, the plaintiff by failing to act on information indicating that there is no evidence of an explicit policy or practice regarding unconstitutional acts were occurring. See Warren v. Pataki, DMV database updates. Nor is there evidence of a pattern 823 F.3d 125, 136 (2d Cir. 2016) (citing Colon, 58 F.3d at of similar delays in clearing license suspensions from the 873). DMV database, which might suggest a policy or practice. Rather, Plaintiff has alleged a single incident involving his Plaintiff appears to allege most of these theories, (Dkt. No. license, and he then jumps to the conclusion that it was caused 157, pp. 13–24), but there is simply no evidence in the by a policy or practice at the DMV. As Defendants note, record to support them. For example, there is no evidence “Plaintiff makes only conclusory and speculative allegations, that Commissioner Swarts was made aware of Plaintiff's without offering any evidence that any of the named an unconstitutional practice occurred.” (Dkt. No. 201-2, p. courts, absent exceptional circumstances, should abstain from 6). Simply put, these allegations are not enough to sustain a exercising pendent jurisdiction when federal claims in a case Monell claim on summary judgment. See Nardoni v. City of can be disposed of by summary judgment”) (citing Kavit v. New York, 331 F.Supp.3d 116, 119 (S.D.N.Y. 2018) (granting A.L. Stamm & Co., 491 F.2d 1176, 1180 (1974)). Accordingly, summary judgment on Monell claim because “Plaintiff points Plaintiff's state law claims against Defendants are dismissed. to no evidence in the record of a policy or custom by the City of New York”); Castro v. County of Nassau, 739 F.Supp.2d V. CONCLUSION 153, 172 (E.D.N.Y. 2010) (finding that “conclusory allegation For these reasons, it is does not allow plaintiff's Monell claim to survive summary judgment”). ORDERED that Defendant Swarts's motion for summary judgment (Dkt. No. 201) is GRANTED; and it is further E. State Law Claims Finally, having found that all of Plaintiff's federal claims ORDERED that the Oswego County Defendants' motion for are subject to summary judgment, the Court declines to summary judgment (Dkt. No. 209) is GRANTED; and it is further exercise jurisdiction over Plaintiff's remaining state law claims, including any claims against Oswego County for vicarious liability under New York State law. See 28 U.S.C. ORDERED that Defendants' motion to strike is DENIED as moot; and it is further § 1367(c)(3) (providing that a district court “may decline to exercise supplemental jurisdiction over [pendent state law claims] if ... the district court has dismissed all claims over ORDERED that Plaintiff's Second Amended Complaint which it has original jurisdiction”); Carnegie-Mellon Univ. (Dkt. No. 157) is DISMISSED with prejudice; and it is v. Cohill, 484 U.S. 343, 350 n.7, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988) (“[I]n the usual case in which all federal-law IT IS SO ORDERED. claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine All Citations —judicial economy, convenience, fairness, and comity— will point toward declining to exercise jurisdiction over the Not Reported in Fed. Supp., 2019 WL 1409938 remaining state-law claims.”); Walker v. Time Life Films, End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works. 2014 WL 6078425 the face of the record in order to accept the recommendation.” Only the Westlaw citation is currently available. Id.; see also Batista v. Walker, 94–CV–2826, 1995 WL United States District Court, 453299, at *1. (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I N.D. New York. am permitted to adopt those sections of [a magistrate judge's] report to which no specific objection is made, so long as Robert H. AJAMIAN, Plaintiff, those sections are not facially erroneous.”) (internal quotation v. marks and citations omitted). Kinah NIMEH, Stock Broker at Gunn Allen Financial, Arbitration 13–02183, Defendant. Here, based upon a review of this matter, the Court can find no error with Magistrate Judge Hummel's Report– No. 1:14–CV–0320 (GTS/CFH). Recommendation, clear or otherwise. (Dkt. No. 15.) | Magistrate Judge Hummel employed the proper standards, Signed Nov. 13, 2014. accurately recited the facts, and reasonably applied the law to those facts. (Id.) Further, Magistrate Judge Hummel's Report– Attorneys and Law Firms Recommendation would survive even a de novo review. As a result, the Report–Recommendation is accepted and adopted Robert H. Ajamian, Latham, NY, pro se. in its entirety for the reasons stated therein. DECISION and ORDER II. Proposed Amended Complaint Ostensibly pursuant to Magistrate Judge Hummel's Hon. GLENN T. SUDDABY, District Judge. recommendation that this Court grant Plaintiff leave to file an amended complaint, Plaintiff prematurely filed a *1 Currently before the Court, in the above-captioned proposed amended complaint, but did so by insisting that civil rights action filed by Robert H. Ajamian (“Plaintiff”) it be treated as a separate action. (See Ajamian v. Gunn against the above-captioned Defendants, is United States Allen Fin., et al., 1:14–CV–1211 [DNH/ATB].) As Magistrate Magistrate Christian F. Hummel's Report–Recommendation Judge Andrew T. Baxter observed, that complaint adds a recommending that Plaintiff's Complaint be dismissed defendant, adds facts and changes the basis for Plaintiff's pursuant to 28 U.S.C. § 1915 and § 1915A for failure to state allegation of jurisdiction. (See id., Dkt. No. 5) However, a claim but otherwise granting Plaintiff leave to submit an because that complaint is “challenging the same conduct by amended complaint. (Dkt. No. 15.) Plaintiff has not filed an the same defendant at the same time as the complaint in [this objection to the Report–Recommendation and the deadline action],” Magistrate Judge Baxter closed the separate action in which to do so has expired. (See generally Docket Sheet.) and directed that the complaint filed therein be filed as a Instead, Plaintiff has filed a proposed amended complaint. proposed amended complaint in this action. (See id., Dkt. For the reasons set forth below, Magistrate Judge Hummel's No. 5.) Therefore, the Court will review Plaintiff's proposed Report–Recommendation is accepted and adopted in its amended complaint to determine whether a meritorious claim entirety. In addition, Plaintiff's proposed amended complaint is stated, which would allow the action to go forward. is denied and this action is dismissed with prejudice. Further, Plaintiff is directed to show cause, within thirty (30) days of *2 As an initial matter, it is important to note that Plaintiff this Decision and Order, as to why he should not be barred filed an exact copy of the original complaint in this action in from filing any future pro se documents or motions in this the United States District Court for the District of Columbia action without first obtaining leave of the Court. on June 10, 2014, which was thereafter transferred to the Eastern District of New York. See Ajamian v. Nimeh, 2:14– I. Report–Recommendation CV–4093(JS/GRB). On September 26, 2014, the District When no objection is made to a report-recommendation, the Judge in that case dismissed Plaintiff's claims without Court subjects that reportrecommendation to only a clear prejudice and granted Plaintiff leave to file an amended error review. Fed.R.Civ.P. 72(b), Advisory Committee Notes: complaint within thirty days of the filing of the Order. See 1983 Addition. When performing such a “clear error” review, Ajamian v. Nimeh, No. 14–CV–409, 2014 WL 4828884, at the time allowed, the Complaint shall be DISMISSED WITH on lack of merit.4 PREJUDICE.” Id. (emphasis in original). Plaintiff having not filed an amended complaint in that action within the 1 See Ajamian v. State of New York, No. 13–CV– time allowed, his claims have been dismissed with prejudice. 1316, Complaint (N.D.N.Y. filed Oct. 23, 2013) For this reason, the Court finds that the proposed amended (pro se civil rights action); Ajamian v. Morgan complaint in this action is futile because Plaintiff is estopped Stanley Smith Barney, et. al, No. 14–CV–0306, from pursuing his claims under the doctrine of res judicata. Complaint (N.D.N.Y. filed Mar. 21, 2014) (pro Under the doctrine of res judicata, or claim preclusion, se civil rights action); Ajamian v. Morgan Stanley a final judgment on the merits of an action precludes Smith Barney, et. al, No. 14–CV–0319, Complaint the parties or their privies from relitigating issues that (N.D.N.Y. filed Mar. 24, 2014) (pro se civil were or could have been raised in that action. Thus, the rights action; Ajamian v. Nimeh, No. 14–CV–0320, doctrine bars later litigation if an earlier decision was (1) a Complaint (N.D.N.Y. filed Mar. 24, 2014) (pro se final judgment on the merits, (2) by a court of competent civil rights action); Ajamian v. Zakarian, No. 14– jurisdiction, (3) in a case involving the same parties or CV–0321, (N.D.N.Y.2014) (current action barred their privies, and (4) involving the same cause of action. by res judicata ); Ajamian v. Nimeh, No. 14–CV– EDP Med. Computer Sys., Inc. v. United States, 480 F.3d 4093, (E.D.N.Y.2014) (pro se civil rights action); 621, 624 (2d Cir.2007) (internal citations and quotation Ajamian v. Zakarian, No. 14–CV–1127, Complaint omitted). (N.D.N.Y. filed Sept. 15, 2014) (pro se civil rights action); Ajamian v. Morgan Stanley Smith Barney, A dismissal with prejudice has the effect of a final et. al, No. 14–CV–1204, Complaint (N.D.N.Y. adjudication on the merits favorable to defendant and bars filed Oct. 1, 2014) (pro se civil rights action); future suits brought by plaintiff upon the same cause of Ajamian v. Nimeh, No. 14–CV–1211, Complaint action. Such a dismissal constitutes a final judgment with (N.D.N.Y. filed Oct. 3, 2014) (pro se civil rights the preclusive effect of res judicata not only as to all action). matters litigated and decided by it, but as to all relevant 2 issues which could have been but were not raised and See Ajamian v. State of New York, No. 13–CV– litigated in the suit. 1316, Judgment (N.D.N.Y. filed August 11, 2014) (dismissing with prejudice for failure to state a Nemaizer v. Baker, 793 F.2d 58, 60–61 (2d Cir.1986) (internal claim and lack of subject matter jurisdiction); citations and quotation omitted). Ajamian v. Morgan Stanley Smith Barney, et. al, No. 14–CV–0306, Judgment (N.D.N.Y. filed May Consequently, Plaintiff's claims in his original complaint 28, 2014) (dismissing with prejudice for failure as well as those in the proposed amended complaint are to state a claim); Ajamian v. Morgan Stanley precluded under the doctrine of res judicata. See Nemaizer, Smith Barney, et. al, No. 14–CV–0319, Text Order 793 F.2d, at 61. For this reason, Plaintiff's proposed amended (N.D.N.Y. filed Mar. 26, 2014) (terminated action complaint is denied and this action is dismissed without as duplicative of 14–CV–306); Ajamian v. Nimeh, prejudice. No. 14–CV0320 (N.D.N.Y.2014) (current action barred by res judicata); Ajamian v. Zakarian, No. 14–CV0321, Judgment (N.D.N.Y. filed Aug. III. Appropriateness of Bar Order 26, 2014) (dismissed with prejudice for failure A review of Plaintiff's litigation history on the Federal to state a claim and lack of subject matter Judiciary's Public Access to Court Electronic Records jurisdiction); Ajamian v. Nimeh, No. 14–CV–4093, (“PACER”) Service reveals that, over the past year, Plaintiff Memorandum & Order (E.D.N.Y. filed Sept. 26, has filed nine pro se civil actions (including this one) in two 2014) (dismissed with prejudice for failure to state different federal district courts.1 Eight of these nine actions, a claim); Ajamian v. Morgan Stanley Smith Barney, including the current action, have been dismissed based on et. al, No. 14–CV–1204, Judgment (N.D.N.Y. pleading deficiencies or procedural failures.2 In addition, filed Oct. 30, 2014) (dismissed with prejudice for Judgment (N.D.N .Y. filed Oct. 9, 2014) (closed Moates v. Barkley, 147 F.3d 207, 208 (2d Cir.1998) ( “[T]he and ordered that complaint be filed as proposed district court may not impose a filing injunction on a litigant amended complaint in 14–CV320). sua sponte without providing the litigant with notice and 3 an opportunity to be heard.”); Azubuko v. Unknown Boston See Ajamian v. Morgan Stanley Smith Barney, LLC, Police Officers, 08–CV–0330, 2008 WL 1767067, at *1 No. 14–2212, Notice of Appeal (2d Cir. filed June (N.D.N.Y. Apr. 16, 2008) (McCurn, J.). 4, 2014); Ajamian v. State of New York, No. 14– 2934, Notice of Appeal (2d Cir. filed Aug. 15, Because of his history of filing unmerited and indeed 2014); Ajamian v. Zakarian, No. 14–3432, Notice vexatious lawsuits, including the current action, Plaintiff is of Appeal (2d Cir. filed Sept. 2, 2014); Ajamian hereby warned that the Court will not tolerate the filing of v. Morgan Stanley Smith Barney, 14–CV–1204, frivolous documents or motions in this action by him in Notice of Appeal to 2d Cir. (N.D.N.Y. filed Nov. 3, the future. As a result, Plaintiff is directed to show cause, 2014). within thirty (30) days, why this Court should not issue an 4 Order barring him from filing any future pro se documents See Ajamian v. Morgan Stanley Smith Barney, or motions in this action without first obtaining leave of the LLC, No. 14–2212, Order (2d Cir. filed Sept. 24, Court. In the event that Plaintiff fails to show such cause, he 2014) (dismissing appeal for lack of arguable basis will be prohibited from filing, in this action, any documents in law or fact); Ajamian v. State of New York, or motions without prior leave of the Court, pursuant to 28 No. 14–2934, Order (2d Cir. filed Oct. 22, 2014) U.S.C. § 1651(a) and the Court's inherent authority to control (dismissing appeal for lack of arguable basis in law and manage its own docket so as to prevent abuse in its or fact) (motion for reconsideration pending). proceedings. *3 Based on Plaintiff's litigation history, the Court finds that (1) Plaintiff lacks a good-faith expectation in prevailing Further, in the event Plaintiff fails to show such cause, in his lawsuits, (2) he has proven himself to be vexatious this case will be forwarded to Chief United States District and indeed incorrigible when proceeding pro se, (3) he Judge Gary L. Sharpe with the recommendation of the has caused needless expense to other parties and placed an undersigned that an Anti–Filing Injunction Order be issued unnecessary burden on the Court and its personnel, and (4) against Plaintiff, which would prohibit Plaintiff from filing, he has demonstrated that no lesser sanctions (e.g., such as in the Northern District of New York, any action pro se (that dismissal or chastisement) would be adequate to protect the is, without counsel) without first obtaining leave of the Court. Court and other parties. *4 ACCORDINGLY, it is Under such circumstances, a federal district court may impose reasonable filing restrictions on a pro se litigant in that ORDERED that Magistrate Judge Hummel's Report– particular court, pursuant to 28 U.S.C. § 1651(a) and its Recommendation (Dkt. No. 15) is ACCEPTED and inherent authority to control and manage its own docket ADOPTED in its entirety; and it is further so as to prevent abuse in its proceedings. For example, a federal district court may, after providing an appropriate ORDERED that Plaintiff's proposed amended complaint opportunity to be heard, prohibit a vexatious litigant from (Dkt. No. 32) is DENIED; and it is further filing, in that particular court, any action pro se (that is, without counsel), without prior leave of that court. See Hong ORDERED that Plaintiff's Complaint (Dkt. No. 1) is Mai Sa v. Doe, 406 F.3d 155, 158 (2d Cir.2005) (“If a litigant DISMISSED with prejudice; and it is further has a history of filing vexatious, harassing or duplicative lawsuits, courts may impose sanctions, including restrictions ORDERED that Plaintiff is hereby directed to show cause, on future access to the judicial system.”) [internal quotations within thirty (30) days of this Decision and Order, why this and citations omitted]; In re Sassower, 20 F.3d 42, 44 (2d Court should not issue an Order barring him from filing any Cir.1994) (where a pro se plaintiff has demonstrated a “clear future pro se documents or motions in this action without pattern of abusing the litigation process by filing vexatious first obtaining leave of the Court. In the event that Plaintiff and frivolous complaints,” a “leave to file” requirement fails to show such cause, he will be prohibited from filing, without counsel) without prior leave of the Court, pursuant normally used for litigants seeking redress of alleged to 28 U.S.C. § 1651(a) and the Court's inherent authority to constitutional violations through 42 U.S.C. § 1983. An control and manage its own docket so as to prevent abuse action commenced pursuant to 42 U.S.C. § 1983 requires in its proceedings. proof of the “deprivation of any right[ ], privilege[ ], or immunit[y] secured by the Constitution” or laws of the federal government. 42 U.S.C. § 1983; see also German v. Fed. Home Loan Mortg. Corp., 885 F.Supp. 537, 573 (S.D . REPORT–RECOMMENDATION and ORDER N.Y.1995) (“Section 1983 establishes a cause of action for the CHRISTIAN F. HUMMEL, United States Magistrate Judge. deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States.”) (quotations The Clerk has sent to the Court for review a complaint filed by omitted). pro se plaintiff Robert H. Ajamian (“Ajamian”). Compl. (Dkt. No. 1). Ajamian has not paid the filing fee and instead seeks *5 Ajamian's § 1983 action should be dismissed for multiple permission to proceed with this matter in forma pauperis reasons. First, Ajamian fails to state a cognizable cause (“IFP”). Dkt. Nos. 2, 5–6, 9, 12–14. of action for which relief can be granted. It is unclear to the Court what civil or constitutional rights were allegedly violated since Ajamian fails to specify the nature of such rights. Ajamian only alleges that defendant failed to make I. Discussion conservative trades on his behalf. Furthermore, the named defendant Nimeh is not asserted to have acted under the color A. Application to Proceed IFP of state law. See, e.g., Rounseville v. Zahl, 13 F.3d 625 (2d Cir.1994) (noting state action requirement under § 1983); Ajamian has submitted an IFP Application. Despite the Wise v. Battistoni, No. 92–CV–4288 (PKL),1992 WL 380914, absence of a properly completed IFP application before the Court, due to significant efforts made by Ajamian, coupled at *1 (S.D.N.Y. Dec. 10, 1992) (same) (citations omitted).1 with a review of the information provided therein, the Court State action is an essential element of any § 1983 claim. See finds that Ajamian may properly proceed with this matter IFP. Gentile v. Republic Tobacco Co., No. 95–CV–1500 (RSP) (DNH), 1995 WL 743719, at *2 (N.D.N.Y. Dec. 6, 1995) (citing Velaire v. City of Schenectady, 862 F.Supp. 774, 776 (N.D.N.Y.1994) (citation omitted)). There is no allegation B. Allegations in the Complaint that Nimeh acted under color of state law with regard to the stock trades. As such, § 1983 is not the proper vehicle Section 1915(e) of Title 28 of the United States Code directs through which Ajamian could seek judicial review of his that, when a plaintiff seeks to proceed IFP, “the court shall claims. Accordingly, to the extent Ajamian seeks to remedy dismiss the case at any time if the court determines that ... the a constitutional violation through § 1983, the complaint fails action or appeal (i) is frivolous or malicious; (ii) fails to state a to state a cause of action to which relief can be granted and claim on which relief may be granted; or (iii) seeks monetary should be dismissed. relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). Thus, it is a court's responsibility to determine that a plaintiff may properly maintain his complaint 1 All unpublished opinions cited to by the Court before permitting him to proceed with his action. in this Report–Recommendation are, unless otherwise noted, attached to this Recommendation. Ajamian asserts that defendant Nimeh, a stock broker, Ajamian also asserts that Nimeh violated his rights under violated his constitutional rights by placing non-conservative “U.S. civil statutes 22 A.L.R. 5th 261, 152 A.L.R. Fed. 1.” trades using his retirement account between March 2005 Compl. at 1. Reliance on either authority is misplaced. Both and September 2011, which resulted in a $30,000.00 loss. references are not to federal statutes but to American Law Compl. at 2–4. Ajamian contends that he is entitled to treble Reports articles, the former concerns statutes on assaults damages, or $90,000.00. Id. For a more complete statement motivated by hate crimes and ethnic intimidation while the of Ajamian's claims, reference is made to the complaint. latter discusses governmental actions that constitute “reverse 261 (1994). The complaint is devoid of any factual allegations the amount in controversy is set at $90,000.00, thus meeting concerning these legal issues. Therefore, despite Ajamian's the amount in controversy requirement, Ajamian has failed conclusory statements, he has failed to state a claim in citing to satisfy the domicile requirement for purposes of diversity these articles. jurisdiction. Accordingly, where the domicile requirement is unmet, diversity jurisdiction does not exist and the Court It is well established that a federal court is obligated to lacks subject matter jurisdiction to consider the action. When notice on its own motion the basis for its own jurisdiction; subject matter jurisdiction is lacking, dismissal is mandatory. thus, the Court must examine whether diversity jurisdiction United States v. Griffin, 303 U.S. 226, 229 (1938); FED. R. exists. City of Kenosha, Wisconsin v. Bruno, 412 U.S. 507, CIV. P. 12(h)(3) (“If the court determines at any time that it 512 (1973); see also Alliance of Am. Ins. v. Cuomo, 854 lacks subject-matter jurisdiction, the court must dismiss the F.2d 591, 605 (2d Cir.1988) (challenge to subject matter action.”). Thus, dismissal of this action may be warranted. jurisdiction cannot be waived); FED. R. CIV. P. 12(h)(3) (court may raise basis of its jurisdiction sua sponte ). To the extent Ajamian seeks to bring criminal charges Ajamian asserts the following claims, “breach of fiduciary against Nimeh, Ajamian lacks a cognizable right in that duty, misrepresentation/non-disclosure, activity suitability, regard. It is well-settled law in this Circuit that there is no unauthorized trading, breach fo contract, error charges, constitutional right to have criminal wrongdoers prosecuted. failure to supervise, margin calls, negligence, criminal See Connecticut Action Now, Inc. v. Roberts Plating Co., 457 misrepresentation, fraudulent concealment....” Compl. at 1. F.3d 81, 86–87 (2d Cir.1972) (“It is a truism ... that in our Thus, the Court considers whether it has subject matter federal system crimes are always prosecuted by the Federal jurisdiction under 28 U.S.C. § 1332, which confers diversity Government, not by ... private citizens.”). jurisdiction. Lastly, attached to Ajamian's complaint is a “FINRA *6 For diversity jurisdiction to exist, the matter in [ (“Financial Industry Regulatory Authority”) ] dispute controversy must exceed $75,000 and must be between resolution claim information tracking form” dated July 19, 2013, which indicates that a claim was filed against Nimeh, (1) citizens of different States; to be resolved through arbitration proceedings. Compl. at 5–8. While Ajamian does not refer to a FINRA arbitral (2) citizens of a State and citizens or subjects of a foreign award in his complaint, allege specifics facts surrounding state; the circumstances of an arbitral award, request specific (3) citizens of different States and in which citizens or judicial action on such an award, or attach the award to his subjects of a foreign state are additional parties; and complaint, it appears that Ajamian filed a claim with FINRA for arbitration proceedings to resolve disputes against Nimeh. (4) a foreign state, defined in section 1603(a) of this title, Furthermore, Ajamian alludes to an arbitration proceeding as plaintiff and citizens of a State or of different States. by inserting an arbitration number in the caption of his complaint. Compl. at 1. In light of his pro se status, the 28 U.S.C. § 1332(a). For purposes of diversity jurisdiction, Court recommends that Ajamian be afforded an opportunity an individual's citizenship is the individual's domicile, which to amend his complaint to make clear this cause of action. is determined on the basis of two elements: “(1) physical Ajamian should also be provided an opportunity to provide presence in a state and (2) the intent to make the state a home.” more facts in his amended complaint which would allow the See Zimak Co. v. Kaplan, No. 98–CV–3176(DAB)NRB., Court, and defendant, to assess whether a meritorious action 1999 WL 38256, at *2 (S.D.N.Y. Jan. 28, 1999) (quoting is stated. 15 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE ¶ 102.34[2] (3d ed.1998)). Corporations are deemed to be “a citizen of any State by which it has been incorporated and of the State where it has its principal place II. Amendment of business[.]” 28 U.S.C. § 1332(c). *7 In sum, Ajamian's complaint in its current form fails to state a claim for relief and fails to state the Court's subject In the “Parties” section of the complaint and civil cover matter jurisdiction. As such, dismissal would be appropriate light of Ajamian's pro se status, this Court recommends that 28 U.S.C. § 1915 and § 1915A, plaintiff's complaint is prior to dismissing this action, Ajamian be directed to amend DISMISSED for failure to state a claim upon which relief can his complaint to provide clearer details regarding his claim. be granted and for lack of subject matter jurisdiction; and it Ajamian is directed to draft a complaint which satisfies the is further plausibility standard outlined in Ashcroft v. Iqbal, 556 U.S. 662 (2009), requiring plaintiffs to “plead [ ] factual content RECOMMENDED that alternatively, in light of plaintiff's pro se status, prior to dismissing plaintiff's complaint in that allows the court to draw the reasonable inference that its entirety, he be provided an opportunity to amend his the defendant is liable for the misconduct alleged.” Id. at complaint to amplify the facts that would support his claim 678 (citations omitted). Specifically, Ajamian is directed to for entitlement to relief; and it is further draft a complaint which Ajamian have to allege specific facts sufficient to plausibly state that the FINRA arbitration award, if it exists, merits judicial review. ORDERED that the Clerk serve a copy of this Report– Recommendation and Order on the parties in accordance with the Local Rules. III. Conclusion Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such WHEREFORE, it is hereby objections shall be filed with the Clerk of the Court “within fourteen (14) days after being served with a copy ORDERED that plaintiff's IFP application (Dkt.Nos.12– of the ... recommendation.” N.Y.N.D.L.R. 72.1(c) (citing 14)2 is GRANTED;3 and it is further 28 U.S.C. § 636(b)(1)(B)-(C)). FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL 2 Plaintiffs' pending letter motions and exhibits PRECLUDE APPELLATE REVIEW. Roldan v. Racette, (Dkt.Nos.12–14) were filed in support of his IFP 984 F.2d 85, 89 (2d Cir.1993); Small v. Sec'y of HHS, 892 application, which was first filed on March 24, F.2d 15 (2d Cir.1989); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 2014 (Dkt. No. 2). 72, 6(a), 6(e). 3 Plaintiff should note that although his IFP Application has been granted, plaintiff will still be Filed May 22, 2014. required to pay fees that he may incur in this action, All Citations including copying and/or witness fees. Not Reported in F.Supp.3d, 2014 WL 6078425 End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works. 2010 WL 5185047 York State Department of Correctional Services, commenced Only the Westlaw citation is currently available. this action on or about January 12, 2009 by submitting his United States District Court, complaint to the Court's Pro Se office. Plaintiff alleges, in S.D. New York. pertinent part, that he has “a non-healing ulcer that is gane green [sic ]” and that defendant Bernstein “did not want David J. CASH, Plaintiff, to treat the ulcer right” (Complaint, dated March 3, 3009 v. (Docket Item 2) (“Compl.”), at 3). BERNSTEIN, MD, Defendant. The action was originally commenced against two defendants No. 09 Civ.1922(BSJ)(HBP). —Dr. Bernstein and Dr. Finkelstein. The action was dismissed | as to Dr. Finkelstein because the complaint contained no Oct. 26, 2010. allegations whatsoever concerning Dr. Finkelstein (Order dated February 18, 2010 (Docket Item 9)). REPORT AND RECOMMENDATION1 On March 4, 2010, the sole remaining defendant—Dr. Bernstein—filed the current motion. Plaintiff failed to submit 1 At the time the action was originally filed, a response. Accordingly, on August 20, 2010, I issued an Order advising plaintiff that if he wished to oppose the the Honorable Leonard B. Sand, United States motion, he must submit his opposition by September 15, 2010 District Judge, granted plaintiff's application for in and that after that date I would consider the motion fully forma pauperis status based on plaintiff's ex parte submitted and ripe for decision (Order dated August 20, 2010 submission (Docket Item 1). Although the present (Docket Item 15)). The only submission plaintiff has made application seeking to revoke plaintiff's in forma in response to my Order is a multi-part form issued by the pauperis status is non-dispositive, I address it by New York State Department of Correctional Services entitled way of a report and recommendation to eliminate “Disbursement or Refund Request.”2 By this form, plaintiff any appearance of a conflict between the decision appears to request that the New York State Department of of a district judge and that of a magistrate judge. Correctional Services pay the filing fee for this action. The form is marked “Denied.” PITMAN, United States Magistrate Judge. *1 TO THE HONORABLE BARBARA S. JONES, United 2 Plaintiff sent this form directly to my chambers, States District Judge, and it has not been docketed by the Clerk of the Court. The form will be docketed at the time this Report and Recommendation is issued. I. Introduction By notice of motion dated March 4, 2010 (Docket Item 11), III. Analysis defendant moves pursuant to 28 U.S.C. § 1915(g) to revoke 28 U.S.C. § 1915 permits an indigent litigant to commence plaintiff's in forma pauperis (“IFP”) status on the ground that an action in a federal court without prepayment of the filing plaintiff has previously had at least three Section 1983 actions fee that would ordinarily be charged. Although an indigent, dismissed as frivolous, malicious or failing to state a claim incarcerated individual need not prepay the filing fee at the upon which relief could be granted, and has not shown that he time at the time of filing, he must subsequently pay the fee, is in imminent danger of serious physical injury. Defendant to the extent he is able to do so, through periodic withdrawals further seeks an order directing that the action be dismissed from his inmate accounts. 28 U.S.C. § 1915(b); Harris v. unless plaintiff pays the full filing fee within thirty (30) days. City of New York, 607 F.3d 18, 21 (2d Cir.2010). To prevent For the reasons set forth below, I respectfully recommend that abuse of the judicial system by inmates, paragraph (g) of defendant's motion be granted. this provision denies incarcerated individuals the right to proceed without prepayment of the filing fee if they have II. Facts repeatedly filed meritless actions, unless such an individual Cir.2004) (“[T]he purpose of the PLRA ... was plainly to 3 It appears that plaintiff uses the names David curtail what Congress perceived to be inmate abuses of the J. Cash and Dennis Nelson interchangeably. In judicial process.”); Nicholas v. Tucker, 114 F.3d 17, 19 (2d his complaint in this matter, plaintiff states that Cir.1997). Specifically, paragraph (g) provides: the Departmental Identification Number, or DIN, assigned to him by the New York State Department of Correctional Services (“DOCS”) is 94–B–0694 *2 In no event shall a prisoner bring (Compl. at 7). DOCS inmate account records a civil action or appeal a judgment submitted by plaintiff in connection with his in a civil action or proceeding under application for IFP status indicate that DIN 94– this section if the prisoner has, on B–0694 is assigned to Dennis Nelson. In addition, 3 or more prior occasions, while the DOCS form described in footnote two bears incarcerated or detained in any facility, the docket number of this action, but is signed in brought an action or appeal in a court the name of Dennis Nelson and was sent in an of the United States that was dismissed envelope identifying the sender as Dennis Nelson. on the grounds that it is frivolous, A subsequent action has been filed in this Court malicious, or fails to state a claim upon in which the plaintiff identifies himself as Dennis which relief may be granted, unless the Nelson but lists his DIN as 94–B–0694, the same prisoner is under imminent danger of DIN used by plaintiff here. Finally, plaintiff has serious physical injury. submitted nothing to controvert the assertion in defendant's papers that David Cash and Dennis Nelson are the same person. In light of all these 28 U.S.C. § 1915(g). facts, I conclude that David Cash and Dennis Nelson are both names used by plaintiff. If an inmate plaintiff seeks to avoid prepayment of the filing fee by alleging imminent danger of serious physical injury, • In Nelson v. Nesmith, No. 9:06–CV–1177 (TJM)(DEP), there must be a nexus between the serious physical injury 2008 WL 3836387 (N.D.N.Y. Aug. 13, 2008), plaintiff asserted and the claims alleged. Pettus v. Morgenthau, 554 again filed an action concerning the medical care F.3d 293, 298 (2d Cir.2009). he was receiving for his left leg. The Honorable Thomas J. McAvoy, United States District Judge, Section 1915(g) clearly prevents plaintiff from proceeding accepted the Report and Recommendation of Magistrate in this action without prepayment of the filing fee. Judge Peebles, and revoked plaintiff's IFP status and The memorandum submitted by defendant establishes that dismissed the action on the ground that plaintiff had plaintiff has had his IFP status revoked on at least four prior previously commenced at least three actions that had occasions as a result of his repeatedly filing meritless actions. been dismissed on the merits. 2008 WL 3836387 at *1, *7. • In 2005, plaintiff commenced an action in the United States District Court for the Northern District of New • In Nelson v. Spitzer, No. 9:07–CV–1241 (TJM) York seeking to have his infected leg amputated. (RFT), 2008 WL 268215 (N.D.N.Y. Jan. 29, 2008), Nelson3 v. Lee, No. 9:05–CV–1096 (NAM)(DEP), 2007 Judge McAvoy again revoked plaintiff's IFP status WL 4333776 (N.D.N.Y. Dec. 5, 2007). In that matter, on the ground that plaintiff had commenced three the Honorable Norman A. Mordue, Chief United States or more actions that constituted “strikes” under District Judge, accepted and adopted the Report and Section 1915(g) and had not shown an imminent Recommendation of the Honorable David E. Peebles, threat of serious physical injury. 2008 WL 268215 United States Magistrate Judge, that plaintiff had at *1–*2. brought three or more prior actions that had been • Finally, in Nelson v. Chang, No. 08–CV–1261 dismissed for failure to state a claim and that plaintiff's (KAM)(LB), 2009 WL 367576 (E.D.N.Y. Feb. 10, IFP status should, therefore, be revoked. 2007 WL 2009), the Honorable Kiyo A. Matsumoto, United cases discussed above, that plaintiff had exhausted that this vague statement is insufficient to support a finding the three strikes permitted by Section 1915(g) that plaintiff is in imminent danger of serious physical and could not proceed IFP in the absence of a injury.5 demonstration of an imminent threat of serious physical injury. 2009 WL 367576 at *2–*3. 5 Plaintiff has sent me several letters describing his *3 As defendant candidly admits, there is one case in which wound and its symptoms in detail, and I have plaintiff's leg infection was found to support a finding of an no doubt that the wound is serious. However, in imminent threat of serious physical injury sufficient to come granting summary judgment dismissing an action within the exception to Section 1915(g). Nelson v. Scoggy, last year based on the same allegations, Judge No. 9:06–CV–1146 (NAM)(DRH), 2008 WL 4401874 at *2 Mordue of the Northern District found that there (N.D.N.Y. Sept. 24, 2008). Nevertheless, summary judgment was no genuine issue of fact that plaintiff's own was subsequently granted for defendants in that case, and conduct was responsible for the ineffectiveness of the complaint was dismissed. Judge Mordue concluded that the treatment he was provided: there was no genuine issue of fact that plaintiff had received Furthermore, to the extent that Nelson's medical adequate medical care for his leg wound and that the failure treatment was delayed, much of the delay of the leg to heal was the result of plaintiff's own acts of was due to his own refusal to cooperate with self-mutilation and interference with the treatment provided. medical staff and his self-mutilations. Nelson's Nelson v. Scoggy, No. 9:06–CV–1146 (NAM)(DRH), 2009 actions to thwart the medical treatment of his WL 5216955 at *3–*4 (N.D.N.Y. Dec. 30, 2009).4 wound cannot be construed as interference or indifference by anyone else.... [T]he medical 4 Although the form complaint utilized by plaintiff treatment Nelson received complied with expressly asks about prior actions involving the constitutional guarantees as it was appropriate, same facts, plaintiff disclosed only the Scoggy timely, and delayed only by Nelson's own action and expressly denied the existence of any actions. other actions relating to his imprisonment (Compl. Nelson v. Scoggy, supra, 2009 WL 5216955 at *4. at 6). Given plaintiff's total failure to respond to the pending motion and his failure to even deny that In light of the foregoing, there can be no reasonable dispute he is actively thwarting treatment of his wound, it that plaintiff has exceeded the three “strikes” allowed by would be sheer speculation for me to conclude that Section 1915(g) and that he cannot, therefore, proceed here he is in imminent danger of a serious injury as a without prepaying the filing fee unless he demonstrates result of defendant's conduct. an imminent threat of serious physical injury. Plaintiff has declined to attempt to make this showing in response to defendant's motion, and the only suggestion in the record IV. Conclusion of serious physical injury is the bare statement in the Accordingly, for all the foregoing reasons, I find that plaintiff complaint that plaintiff “need[s] to go back to a wound speci has had three or more prior actions dismissed as being [a]list before the gane green [sic ] kills [him]” (Compl. at frivolous, malicious or failing to state a claim and that 5). “However, unsupported, vague, self-serving, conclusory plaintiff's in forma pauperis status should, therfore, be speculation is not sufficient to show that Plaintiff is, in fact, revoked. If your Honor accepts this recommendation, I further in imminent danger of serious physical harm.” Merriweather recommend that the action be dismissed unless plaintiff pays v. Reynolds, 586 F.Supp.2d 548, 552 (D.S.C.2008), citing the filing fee in full within thirty (30) days of your Honor's Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir.2003) and final resolution of this motion. White v. Colorado, 157 F.3d 1226, 1231–32 (10th Cir.1998); see also Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir.2003) V. OBJECTIONS (imminent danger exception to Section 1915(g) requires Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of “specific fact allegations of ongoing serious physical injury, the Federal Rules of Civil Procedure, the parties shall have or of a pattern of misconduct evidencing the likelihood fourteen (14) days from receipt of this Report to file written of imminent serious physical injury”). Given the plaintiff's with courtesy copies delivered to the Chambers of the Cir.1997); IUE AFL–CIO Pension Fund v. Herrmann, 9 F.3d Honorable Barbara S. Jones, United States District Judge, 1049, 1054 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 500 Pearl Street, Room 1920, and to the Chambers of the 300 (2d Cir.1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57– undersigned, 500 Pearl Street, Room 750, New York, New 59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237– York 10007. Any requests for an extension of time for filing 38 (2d Cir.1983). objections must be directed to Judge Jones. FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT All Citations IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. Thomas v. Arn, 474 U.S. 140, 155 Not Reported in F.Supp.2d, 2010 WL 5185047 End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works.