Jarvis v. Duell

• Court: District Court, N.D. New York
• Decided: August 26, 2025
• Docket: 5:25-cv-00843
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _____________________________________________________________________ HOLLY JARVIS, Plaintiff, v. 5:25-CV-843 (LEK/MJK) PROBATION OFFICER JASON DUELL, and PROBATION OFFICER PHIL PHILBRICK Defendants. _____________________________________________________________________ HOLLY JARVIS, Plaintiff, pro se MITCHELL J. KATZ, U.S. Magistrate Judge TO THE HONORABLE LAWRENCE E. KAHN, Senior U.S. District Judge: ORDER & REPORT- RECOMMENDATION Plaintiff, Holly Jarvis, commenced this action on June 27, 2025, by filing a Complaint (“Compl.”), and moving for leave to proceed in forma pauperis

(“IFP”). (Dkts. 1, 2). Also, attached to the Complaint is a “Subpoena For Employment Records Of Philbrick & Duel” (Subpoena”). (Dkt. 1-2). The Clerk sent the Complaint, Subpoena, and IFP application to this Court for review. (Dkts. 1, 2).1

1 This case is related to 5:25-CV-228 (LEK/MJK) and 5:25-CV-645 (LEK/MJK), both pending in the Northern District of New York. I. BACKGROUND Jarvis alleges that she submitted a FOIL request seeking surveillance footage within one month of an alleged incident at Funny Bone Comedy Club. (Compl.,

Dkt. 1, at ¶ 8). Jarvis further alleges that despite her request, Defendants have not provided or preserved the requested surviellance footage. Finally, Jarvis alleges that Defendants, the Syracuse Police Department, and Funny Bone Comedy Club

had a “joint responsibility to preserve this critical evidence, knowing its relevance to both criminal and civil claims.” (Id.). II. IFP APPLICATION Jarvis declares in her IFP applications that she is unable to pay the filing fee.

(Dkt. 5). After reviewing the IFP application, this Court finds that Jarvis is financially eligible for IFP status. III. STANDARD OF REVIEW In addition to determining whether a plaintiff meets the financial criteria to

proceed IFP, courts must also review the sufficiency of the allegations in the complaint under 28 U.S.C. § 1915. That statute requires a court to dismiss a case— at any time—if it determines that the action is (1) frivolous or malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief against

a defendant who is immune from such relief. See 28 U.S.C. § 1915 (e)(2)(B)(i)- (iii). When determining whether an action is frivolous, courts must consider whether the complaint lacks an arguable basis in law or in fact. See Neitzke v.

Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and 28 U.S.C. § 1915. Dismissal of frivolous actions is appropriate to prevent abuses of court process as well as to discourage

the waste of judicial resources. Neitzke, 490 U.S. at 327; Harkins v. Eldredge, 505 F.2d 802, 804 (8th Cir. 1974). To be sure, courts have a duty to show liberality toward pro se litigants and must use extreme caution when sua sponte dismissing pro se complaints before

adverse parties have been served and had an opportunity to respond. See Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that a district court may dismiss a frivolous complaint sua sponte even when

plaintiff has paid the filing fee). But courts still have a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. See id. IV. DISCUSSION A. Fed. R. Civ. P. 8 Pleadings must contain, among other things, “a short and plain statement of

the claim showing that the pleader is entitled to relief …” Fed. R. Civ. P. 8(a)(2). “The purpose of” Rule 8 “is to give fair notice of the claim being asserted so” adverse parties have “the opportunity to file a responsive answer, prepare an adequate defense, and determine whether the doctrine of res judicata is applicable.” Flores v. Graphtex, 189 F.R.D. 54, 55 (N.D.N.Y. 1999) (cleaned up). The rule also

requires the pleading to include “a short and plain statement of the grounds for the court’s jurisdiction” and “a demand for the relief sought[.]” Fed. R. Civ. P. 8(a)(1), (3). “Although ‘no technical form is required,’ the Federal Rules make clear that

each allegation contained in the pleading ‘must be simple, concise, and direct.’” Cole v. Smrtic, No. 1:24-CV-847, 2024 WL 4870495, at *2 (N.D.N.Y. 2024) (quoting Fed. R. Civ. P. 8(d)). Allegations “so vague as to fail to give the defendants adequate notice of the claims against them” are subject to dismissal.

Sheehy v. Brown, 335 F. App’x 102, 104 (2d Cir. 2009) (summary order). Indeed, to survive dismissal for failure to state a claim, a complaint must contain sufficient factual matter, accepted as true, to state a claim that is “plausible

on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice.” Ashcroft, 556 U.S. at 678 (cleaned up).

Here, the Complaint is completely devoid of any allegations, specific or otherwise, regarding what, if any, activities Defendants engaged in giving rise to Jarvis’s claims against them. As pleaded, there is no logical connection between

Jarvis’s allegations about her FOIL request and her purported claims against Defendants. Stated differently, the Complaint is a “unadorned, the-defendant- unlawfully-harmed-me accusation.” Ashcroft, 556 U.S. at 678. And that is not

enough to state a claim. See, e.g., Lesson v. Jane Doe, No. 1:25-CV-00188 (AMN/TWD), 2025 WL 1291533 (N.D.N.Y. May 5, 2025) (Adopting Report and Recommendation which dismissed a plaintiff’s excessive force claim because that

plaintiff failed to “identify what force” was used against him or “how it was excessive.”). The Court therefore recommends that the Complaint be dismissed without prejudice and with leave to amend, except as to any claims directly related to Jarvis’s FOIL request which, for the reasons more fully set forth below, are

dismissed without prejudice and without leave to amend. If the District Court accepts this recommendation, and if Jarvis chooses to file an amended pleading, she is directed to plead sufficient facts giving rise to each claim against the named

defendants. B. New York Freedom of Information Law Jarvis’s claims emanate from her alleged inability to obtain information under the New York Freedom of Information Law (“FOIL”), N.Y. Pub. Off. L. §

89 et seq., which allows individuals to request disclosure of records collected by New York state agencies, subject to certain statutory exemptions. If an initial request is denied, the requester may appeal the denial first to the “head, chief

executive or governing body” of the entity or agency in possession of the documents, and, thereafter, by commencing a special proceeding in New York State courts under Article 78 of the New York Civil Practice Law and Rules. N.Y.

Pub. Off. L. § 89(4)(a) and (b). Federal courts do not have subject matter jurisdiction to enforce state laws regarding public access to official records. See In re Shelton, No. 06-CV- 6132, 2006 WL 3463425, at *2 (E.D.N.Y. Nov. 30, 2006)

(“To the extent that [the plaintiff] seeks information from state agencies . . ., this Court does not have jurisdiction over requests made pursuant to the state FOIL.”). The Court therefore recommends that any claims specifically arising out of Plaintiff’s FOIL request be dismissed without prejudice and without leave to

amend. Those claims, if not time barred, must be pursued in a different forum. C. Immunity “Probation officers are entitled to immunity in the performance of their

duties.” Detleelis v. Sharhaugh, 919 F.3d 161, 164 (2d Cir. 2019) (cleaned up). But the type of immunity afforded depends on whether the probation officer’s conduct was judicial or prosecutorial. Id. “Probation officers are entitled to absolute immunity from suit in connection with their preparing and furnishing

presentence reports to the court.” Id. (cleaned up). “They are also entitled to absolute immunity” for “initiating parole revocation proceedings” and “presenting the case for revocation to hearing officers.” Id. (cleaned up). Probation officers are entitled

to qualified immunity when they perform investigatory duties like filing a violation report or recommending the issuance of an arrest warrant. Id. Because the Complaint lacks any specific allegations against Defendants, the

Court cannot determine whether they are immune from suit. The Court therefore recommends that the Complaint be dismissed without prejudice and with leave to amend. D. Subpoena Request

Plaintiff’s request for a subpoena is denied for two reasons. First, because the Court is recommending that the Complaint be dismissed in its entirety, there is no case in which a subpoena may be issued. Second, Plaintiff’s Subpoena is

defective since it does not comply with Fed. R. Civ P. 45. V. OPPORTUNITY TO AMEND Generally, before the court dismisses a pro se complaint or any part of the complaint sua sponte, the court should afford a plaintiff the opportunity to amend

at least once; however, leave to re-plead may be denied where any amendment would be futile. See Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). Futility is present when the problem with plaintiff’s causes of action is substantive such that better pleading will not cure it. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation omitted).

Here, the Court recommends that Jarvis be granted leave to file an amended pleading that does not contain any claims directly related to her FOIL request. Further, if the District Court approves this Report-Recommendation and allows

Jarvis to submit a proposed amended complaint, Jarvis should be warned that any amended pleading must be a complete and separate pleading. Jarvis must state all her claims in the new pleading and may not incorporate by reference any part of her original complaint.

WHEREFORE, based on the findings above, it is ORDERED, that Plaintiff’s motion to proceed IFP (Dkt. 2) is GRANTED;2 and it is further

RECOMMENDED, that the District Court dismiss Plaintiff’s Complaint WITHOUT PREJUDICE and WITH LEAVE TO AMEND except as to any claims directly related to Plaintiff’s FOIL request which should be dismissed WITHOUT PREJUDICE and WITHOUT LEAVE TO AMEND; and it is

further

2 The court notes that although Plaintiff’s IFP application has been granted, Plaintiff will still be required to pay fees that she may incur in the future regarding this action, including but not limited to copying and/or witness fees. ORDERED, that Plaintiff's request for the issuance of a subpoena is DENIED AS MOOT AND WITHOUT PREJUDICE, and it is further ORDERED, that the Clerk of the Court serve a copy of this Order and Report-Recommendation on Plaintiff by regular mail.’ Under 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have 14 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 14 DAYS WILL PRECLUDE APPELLATE REVIEW. See Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72.

Dated: August 26, 2025

U.S. Magistrate Judge

> The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

2024 WL 4870495 Cir. 2004). Only the Westlaw citation is currently available. 2 Plaintiff is advised that, although he has been United States District Court, N.D. New York. granted IFP status, he is still required to pay all fees Matthew H. COLE, Plaintiff, and costs he may incur in this action, including, but not limited to, copying fees, transcript fees, and v. witness fees. Honorable Michael W. SMRTIC, et al. Defendants. No. 1:24-CV-00847 (MAD/CFH) II. Initial Review | Signed November 21, 2024 A. Legal Standards Attorneys and Law Firms Section 1915 of Title 28 of the United States Code directs MATTHEW H. COLE, 271 Market Street, Amsterdam, New that, when a plaintiff seeks to proceed IFP, “the court shall York 12010, Plaintiff pro se. dismiss the case at any time if the court determines that ... the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary REPORT-RECOMMENDATION & ORDER 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 CHRISTIAN F. HUMMEL, United States Magistrate Judge determine that a plaintiff may properly maintain his complaint before permitting him to proceed with his action. I. In Forma Pauperis Where, as here, the plaintiff proceeds pro se, “the court *1 Plaintiff pro se Matthew H. Cole (“plaintiff”) must construe his submissions liberally and interpret them commenced this action (No. 1:24-CV-00623) on May 6, to raise the strongest arguments that they suggest.” Kirkland 2024, by filing a complaint. See Dkt. No. 1 (“Compl.”). v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) On September 26, 2024, plaintiff submitted what the Court (per curiam) (internal quotation marks omitted); see also construes to be a supplement to the complaint.1 See Dkt. No. Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). As 7. In lieu of paying this Court's filing fees, he submitted an the Second Circuit stated, application for leave to proceed in forma pauperis (“IFP”). There are many cases in which we have said that a pro See Dkt. No. 2. The undersigned has reviewed plaintiff's IFP se litigant is entitled to “special solicitude,” that a pro se application and determines that he financially qualifies to litigant's submissions must be construed “liberally,” and proceed IFP.2 Thus, the Court proceeds to its review of the that such submissions must be read to raise the strongest complaint pursuant to 28 U.S.C. § 1915. Plaintiff has also arguments that they “suggest[.]” At the same time, our submitted for the Court's review a Pro Se Application for cases have also indicated that we cannot read into pro se Permission to File Electronically and a Motion to Appoint submissions claims that are not “consistent” with the pro Counsel. See Dkt. Nos. 4, 5. se litigant's allegations, or arguments that the submissions themselves do not “suggest,” that we should not “excuse 1 The submission includes a letter addressed to frivolous or vexatious filings by pro se litigants,” and that District Judge D'Agostino, titled, “Requirements pro se status “does not exempt a party from compliance for Cases Removed From State Court,” Dkt. No. with relevant rules of procedural and substantive law[.]” 7; a receipt from Montgomery County Clerk dated December 8, 2022; and a “Notice of Claim” with *2 Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, the caption of Cole v. County of Montgomery, 477 (2d Cir. 2006) (citations and footnote omitted); see also dated December 7, 2022. See Dkt. No. 7. The Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191-92 undersigned has reviewed this submission in (2d Cir. 2008). pleadings has its limits, because pro se pleadings still must (internal quotation marks and citations omitted). A complaint comply with ... the Federal Rules of Civil Procedure [(‘Fed. that fails to comply with the pleading requirements “presents R. Civ. P.’)].” Kastner v. Tri State Eye, No. 19-CV-10668 far too a heavy burden in terms of a defendant's duty to (CM), 2019 WL 6841952, at *2 (S.D.N.Y. Dec. 13, 2019) shape a comprehensive defense and provides no meaningful (quoting Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994)). basis for the Court to assess the sufficiency of their claims.” Pleading guidelines are provided in the Federal Rules of Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996). As Civil Procedure. Specifically, Rule 8 requires the pleading to the Second Circuit has held, “[w]hen a complaint does not include: comply with the requirement that it be short and plain, the court has the power, on its own initiative ... to dismiss the (1) a short and plain statement of the grounds for the court's complaint.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. jurisdiction ...; 1988) (citations omitted). However, “[d]ismissal ... is usually reserved for those cases in which the complaint is so confused, (2) a short and plain statement of the claim showing that ambiguous, vague, or otherwise unintelligible that its true the pleader is entitled to relief; and substance, if any, is well disguised.” Id. (citations omitted). (3) a demand for the relief sought... *3 This Court also has an overarching obligation to FED. R. CIV. P. 8(a). Although “[n]o technical form is determine that a claim is not legally frivolous before required,” the Federal Rules make clear that each allegation permitting a pro se plaintiff's complaint to proceed. See, e.g., contained in the pleading “must be simple, concise, and Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d direct.” Id. at 8(d). “The purpose ... is to give fair notice 362, 363 (2d Cir. 2000). “Legal frivolity ... occurs where of the claim being asserted so as to permit the adverse ‘the claim is based on an indisputably meritless legal theory party the opportunity to file a responsive answer, prepare an [such as] when either the claim lacks an arguable basis in adequate defense and determine whether the doctrine of res law, or a dispositive defense clearly exists on the face of the judicata is applicable.” Flores v. Graphtex, 189 F.R.D. 54, complaint.’ ” Aguilar v. United States, Nos. 99-MC-0304, 99- 54 (N.D.N.Y. 1999) (internal quotation marks and citations MC-0408, 1999 WL 1067841, at *2 (D. Conn. Nov. 8, 1999)3 omitted). Allegations that “are so vague as to fail to give the (quoting Livingston v. Adirondack Beverage Co., 141 F.3d defendants adequate notice of the claims against them” are 434, 437 (2d Cir. 1998)); see also Neitzke v. Williams, 490 subject to dismissal. Sheehy v. Brown, 335 F. App'x 102, 104 U.S. 319, 325 (1989) (“[D]ismissal is proper only if the legal (2d Cir. 2009) (summary order). theory ... or factual contentions lack an arguable basis.”). Further, Fed. R. Civ. P. 10 provides: 3 Any unpublished cases cited within this Report- Recommendation & Order have been provided to plaintiff. [a] party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to B. Complaint a single set of circumstances. A later pleading may refer by number to Plaintiff's civil cover sheet indicates that he seeks to bring this a paragraph in an earlier pleading. action pursuant to “Title U.S.C. 18 Section 241, Conspiracy If doing so would promote clarity, Against Rights & Title U.S.C. 18 Section 242 Deprivation each claim founded on a separate of rights Under Color of Law.” Dkt. No. 1-1 at 1. The civil transaction or occurrence – and each cover sheet further provides that his cause of action involves, defense other than a denial – must be “Violation of Due process, Speedy Trial Rights, Ineffective stated in a separate count or defense. Assistance of Counsel. I feel I am being targeted for being black and gay.” Id. FED. R. CIV. P. 10(b). This serves the purpose of “provid[ing] Plaintiff's form complaint checks the box indicating that he seeks to bring this case pursuant to 42 U.S.C. § 1983. complaint asking in “what federal constitutional or statutory right(s) do you claim is/are being violated by state or local *4 Petitioner seeks reinstatement officials,” plaintiff responds, “Due Process, 30.30 Speedy of driving priveldges [sic], and 10 Trial Violation, Ineffective Assistance of counsel.”4 Id. In million dollars for damages caused by response to a question asking him to explain “how each conflict of interest, deliberate violation defendant acted under color of state or local law,” plaintiff of Due Process, Speedy Trial rights, states “Each judge deliberately denied me due process, and Ineffective assistance of counsel, refused to look into the paperwork to see that i was improperly malice, Brady Violation, Petitioner denied my speedy trial rights. It was a tean [sic] effort. claims deliberate misconduct and The ADA/Special Prosecutor withheld potential exculpatory malice in Montgomery County Court, material which was usd [sic] against me. All mentioned the Saratoga Disrict Attorney's Office, actions were done and upheld even after I showed federal law and the Supreme Court Appellate with supportive case law as a pro se litigant.” Id. Division Third department. ** This is subject to change if an attorney agrees 4 Although plaintiff generally references ineffective to represent. assistance of counsel, Compl. at 4, he does not name any attorney who may have represented him. Any claims against the prosecutor would Compl. at 5. Although he typed his name, plaintiff does not not be considered ineffective assistance of counsel sign the complaint where a signature is indicated. See id. at 8. because Mr. Maxwell, as the prosecutor, was not plaintiff's attorney. Plaintiff provides in his supplement that he “removed this action to district court asserting jurisdiction pursuant to 42 Plaintiff provides that his “case is still on appeakl [sic] in U.S.C. 1983, and § 1441.” Dkt. No. 7. at 1. Plaintiff states Appellate Court Third Department. I feel they are guilty, that he removed this case from Montgomery County Supreme or part of what I call a scandal. I went to them from the Court. See id. He states that he seeks or sought the removal very start with a complaint to the grievance committee, because he was told he was “not guarantee counsel” at the where they denied any wrongdoing. It must be ok to violate state, but that “[i]n Federal Court, there is that option, pending Constitutional rights there. This is from March 2019 to qualification, and I am told, if a lawyer agrees to take it, then present” Id. I really have something. I am in dire need of counsel.” Id. In response to a question that asks plaintiff to state the facts Plaintiff states, “[t]he ineffective assistance of counsel and underlying his claims, plaintiff states, “Please see attached The County Court are a matter already mentioned in the Article 78 that is attached. It was dismissed being in the wrong appeal.” Dkt. No. 7 at 2. Plaintiff states that “[t]o get my court, but is on point.” Id. at 4. Plaintiff did not provide the conviction, I allege judicial and prosecutorial misconduct, Court with any such attachment and has not submitted any and ineffective assistance of counsel × 4. That is why I am Article 78 materials. See Compl., Dkt. No. 7. pro se. I had to protect myself when appointed counsel did not. It also went through a couple judges which is why they In response to the form complaint's question asking about are mentioned in the preliminary complaint/paperwork, and any injuries suffered as a result of the conduct he complains why I mention bias.” Id. Plaintiff states he can “prove each of, plaintiff states, “Sever [sic] depression over 20 years, irreperable [sic] harm, defamation of charcter [sic] by thing I saw not just with my words, but with transcripts5 from arguments not legally allowed to give. Loss of income, the County Court, and the Adult Drug Court.” Id. Plaintiff inability to gain and keep employment, mental trauma, refers to being drug free for four and a half years and having instilled disbelief in justice in the legal system, familial academic success in college. Id. at 3. He states that he wishes traumam [sic] due to my legal battles.” Id. Indicating the relief this Court to hear his case because he believes he will not sought, plaintiff states “see bias” in federal court “like I saw in others.” Id. Plaintiff states that he “also put in a Notice of Removal in the Federal Court for those criminal charges that led to the Complaint. I (AMN).” Id. or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct 5 Plaintiff did not provide any transcripts. appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ C. Discussion6 of habeas corpus.” Id. at 486-87. The court further held that “[a] claim for damages bearing that relationship to 6 As a courtesy, the Court has provided plaintiff with a conviction or sentence that has not been so invalidated is not cognizable under § 1983.” Id. at 487 (emphasis in copies of any unpublished cases cited within this original). Report-Recommendation & Order. [ ] 1. Rule 8 Thus, under Heck and its progeny, if a conviction has not been invalidated previously, a “§ 1983 action is barred ... As a threshold issue, plaintiff's complaint fails to meet the no matter the target of the prisoner's suit ... if success in requirements of Rule 8. See FED. R. CIV. P. 8(a)(2). He that action would necessarily demonstrate the invalidity does not provide a short and plain statement of the claim of confinement or its duration.” Wilkinson v. Dotson, 544 demonstrating why he is entitled to relief. Although he U.S. 74, 81-82 (2005) (emphasis in original). makes general references to both an Article 78 proceeding and a criminal proceeding and unexplained references to Ali v. Shattuck, No. 8:24-CV-0128 (DNH/CFH), 2024 “Due Process, 30.30 Speedy Trial Violation, Ineffective of WL 2747619, at *3 (N.D.N.Y. May 29, 2024), report- Counsel,” he does not provide factual support or context. recommendation adopted sub nom. Ali v. Dow, No. 8:24- Thus, his complaint does not provide “fair notice” to CV-128, 2024 WL 3460745 (N.D.N.Y. July 18, 2024) defendants of the claims against them. See FED. R. CIV. P. (quoting Zografidis v. Richards, No. 3:22-CV-00631 (AVC), 8(a)(2). 2022 WL 21756775, at *7 (D. Conn. July 6, 2022), report and recommendation adopted (Oct. 7, 2022), aff'd, No. 22-3197, 2023 WL 7538211 (2d Cir. Nov. 14, 2023)). 2. Heck v. Humphrey Plaintiff has failed to demonstrate that any criminal charge(s), However, there are several substantive concerns that further conviction, or sentence has been “reversed on direct appeal, lead the undersigned to recommend dismissal. First, in expunged by executive order, declared invalid by a state referencing to “Due Process, 30.30 Speedy Trial Violation, tribunal authorized to make such determination, or called into Ineffective of Counsel” and explicitly referencing a criminal question by a federal court's issuance of a writ of habeas conviction, it is clear that plaintiff is attempting to seek corpus.” Zografidis, 2022 WL 21756775, at *7. Although some kind of review of a criminal proceeding or conviction. plaintiff's complaint wants for detail, the undersigned can See Compl. at 3. Plaintiff also accuses all named judges clearly determine that plaintiff seeks review of his criminal of denying him due process and contends that an unnamed proceedings, conviction, and/or sentence. The claims plaintiff “ADA/Special Prosecutor withheld potential exculpatory seeks to pursue relate to allegations that he was denied material which was usd [sic] against me.” Compl. at 4. due process, denied speedy trial rights, and experienced Plaintiff also references a conviction. See Dkt. No. 7 at 4. ineffective assistance of counsel. Accordingly, plaintiff's Such claims would be barred by Heck v. Humphrey. claims are barred by Heck unless and until he can demonstrate favorable termination of his criminal conviction.7 *5 As this Court, citing the District of Connecticut, has set forth: 7 The undersigned recognizes that claims that are In Heck, the Supreme Court held that in order for a determined to be barred by Heck are dismissed plaintiff “to recover damages for allegedly unconstitutional without prejudice. However, the undersigned has conviction or imprisonment, or for other harm caused by recommended dismissal with prejudice because immune from relief. Accordingly, the undersigned curiam)). “Judicial immunity has been created for the public is recommending dismissal of the claims based on interest in having judges who are ‘at liberty to exercise these immunities, rather than a Heck dismissal. The their functions with independence and without fear of undersigned has included the Heck review for sake consequences.’ ” Id. (quoting Huminski v. Corsones, 396 of completeness. F.3d 53, 74 (2d Cir. 2004)). “Judicial immunity applies even when the judge is accused of acting maliciously or corruptly.” Id. (citation omitted); see Positano v. New York, No. 12- 3. Immunities CV-2288 (ADS/AKT), 2013 WL 880329, at *4 (E.D.N.Y. Mar. 7, 2013) (explaining that the plaintiff may not bring Plaintiff names as defendants several defendants who are action against a judge for actions taken in his judicial capacity, immune from suit. Insofar as plaintiff names Hon. Michael even when the actions violated the ADA). W. Smrtic, Interim Montgomery County Judge and Tatiana N. Coffinger, “County/Family/Surrogate's Court Judge”8 such “Judicial immunity is immunity from suit, not just immunity claims would be barred by judicial immunity. from the assessment of damages.” Zavalidroga, 2017 WL 8777370, at *8 (citing Mitchell v. Forsyth, 472 U.S. 511, 8 Although plaintiff provides no facts regarding 526 (1985)). “The only two circumstances in which judicial any family court proceedings, that he named a immunity does not apply is when he or she takes action family court judge and makes general reference ‘outside’ his or her judicial capacity and when the judge takes to that he seeks review over actions taken by action that, although judicial in nature, is taken ‘in absence a family court judge. Even if plaintiff were to of jurisdiction.’ ” Id. (quoting Mireles, 502 U.S. at 11-12). amend his complaint to provide facts about any “In determining whether or not a judge acted in the clear possible family court proceedings and details absence of all jurisdiction, the judge's jurisdiction is ‘to be about any alleged violations of his rights that he construed broadly, and the asserted immunity will only be believes he faced in that Court, if plaintiff seeks overcome when the judge clearly lacks jurisdiction over the this Court's review of an order of the family subject matter.’ ” Pacherille v. Burns, 30 F. Supp. 3d 159, court, such review would be barred by Rooker- 163 (N.D.N.Y. 2014) (quoting Ceparano v. Southampton Just. Feldman, and if plaintiff seeks this Court's review Ct., 404 F. App'x 537, 539 (2d Cir. 2011) (summary order)). or intervention of a currently pending/ongoing “Whether a judge acted in a judicial capacity depends on Family Court proceeding, such review would be the nature of the act [complained of] itself, i.e., whether it barred by Younger. See Porter v. Nasci, No. 5:24- is a function normally performed by a judge, and [on] the CV-0033 (GTS/TWD), 2024 WL 1142144, at expectations of the parties, i.e., whether they dealt with the *4 (N.D.N.Y. Mar. 15, 2024) (citations omitted), judge in his judicial capacity.” Ceparano, 404 F. App'x at 539 report and recommendation adopted, 2024 WL (internal quotation marks and citation omitted). “Further, if 3158645 (N.D.N.Y. June 25, 2024) (“Under the the judge is performing in his judicial capacity,” he “ ‘will not Rooker-Feldman doctrine, a federal district court be deprived of immunity because the action he took was in lacks authority to review a final state court order error, was done maliciously, or was in excess of his authority; or judgment where a litigant seeks relief that rather, he will be subject to liability only when he has acted invites the federal district court to reject or overturn in the clear absence of all jurisdiction.’ ” Ceparano, 404 F. such a final state court order or judgment.”); see App'x at 539 (quoting Stump v. Sparkman, 435 U.S. 349, 362 also Diamond “D” Constr. Corp. v. McGowan, (1978)). “Judges are not, however, absolutely ‘immune from 282 F.3d 191, 198 (2d Cir. 2002) (“[F]ederal liability for nonjudicial actions, i.e., actions not taken in the courts [must] abstain from taking jurisdiction over judge's judicial capacity.’ ” Bliven v. Hunt, 579 F.3d 204, 209 federal constitutional claims that involve or call (2d Cir. 2009) (quoting Mireles, 502 U.S. at 11). into question ongoing state proceedings.”). Thus, as plaintiff names the judicial defendants in relation to *6 “With minor exceptions, judges are entitled to absolute actions or omissions that they took in their roles as judges, immunity for actions relating to the exercise of their judicial their actions are protected by absolute judicial immunity. functions.” Zavalidroga v. Girouard, No. 6:17-CV-682 (BKS/ To the extent plaintiff names Hon. Felix Catena, “Retired by absolute judicial immunity as a judge's retirement, “does Accordingly, absolute immunity extends to functions such not impact [his or] her immunity for acts taken in [his or] as “deciding whether to bring charges and presenting a case her official capacity before her retirement.” McCray v. Lewis, to a grand jury or a court, along with the tasks generally No. 16-CV-3855 (WFK/VMS), 2016 WL 4579081, at *2 considered adjunct to those functions, such as witness (E.D.N.Y. Aug. 31, 2016). To the extent plaintiff may seek to preparation, witness selection, and issuing subpoenas.” sue the judges their official capacities, the suit is barred by the Simon v. City of New York, 727 F.3d 167, 171 (2d Eleventh Amendment. See Pacherille v. Burns, 30 F. Supp. Cir. 2013) (citing Imbler, 424 U.S. at 431 n.33); see 3d 159, 163 n.5 (N.D.N.Y. 2014) (“The Eleventh Amendment also Flagler, 663 F.3d at 547 (explaining, “the Supreme shields judges from suit to the extent that they are sued in their Court has found prosecutors absolutely immune from official capacities.”). suit for alleged misconduct during a probable cause hearing, in initiating a prosecution, and in presenting *7 In addition, plaintiff also references, exclusively in his the State's case ... [but] withheld absolute immunity for “relief” section of the form complaint, “the Supreme Court conduct unrelated to advocacy, such as giving legal advice, Appellate Division, Third Department” when stating that he holding a press conference, or acting as a complaining experienced “deliberate misconduct and malice.” Compl. at witness.”). “[O]nce a court determines that challenged 7. He does not name this Court as a defendant anywhere in conduct involves a function covered by absolute immunity, the complaint. However, even if plaintiff were to have named the actor is shielded from liability for damages regardless the Appellate Division, Third Department as a defendant, of the wrongfulness of his motive or the degree of injury such defendant would also need to be dismissed based on caused ....” Bernard v. Cnty. of Suffolk, 356 F.3d 495, 503 Eleventh Amendment immunity as the Appellate Division “is (2d Cir. 2004) (citing Cleavinger v. Saxner, 474 U.S. 193, merely an agency or arm of New York State.” Benyi v. New 199-200 (1985)). York, No. 3:20-CV-1463 (DNH/ML), 2021 WL 1406649, at Williams v. Atkins, No. 5:24-CV-0573 (DNH/TWD), 2024 *5 (N.D.N.Y. Mar. 23, 2021), report and recommendation WL 3649849, at *5 (N.D.N.Y. June 11, 2024), report adopted, No. 3:20-CV-1463, 2021 WL 1404555 (N.D.N.Y. and recommendation adopted, No. 5:24-CV-573, 2024 WL Apr. 13, 2021) (citation omitted). Accordingly, to the extent 3548760 (N.D.N.Y. July 26, 2024). a liberal reading of the complaint may suggest that plaintiff seeks to name the Appellate Division as a defendant, such Plaintiff appears to suggest that Mr. Maxwell “withheld claims are barred by Eleventh Amendment immunity. See potentially exculpatory material” that was used against Compl. him. Compl. at 4. Beyond the Heck barriers already discussed, even if plaintiff could amend to provide greater Finally, insofar as plaintiff seeks to sue Prosecutor Samuel V. detail, absolute immunity would extent to even this alleged Maxwell, Esq., Assistant District Attorney, in addition to the misconduct as such allegations clearly fall within the scope of Heck issues noted above, he would be protected by absolute prosecutorial immunity. Accordingly, it is recommended that prosecutorial immunity. As this Court has recently reiterated, any claims against ADA Samuel V. Maxwell be dismissed Prosecutors enjoy “absolute immunity from § 1983 liability for absolute prosecutorial immunity. “Furthermore, because for those prosecutorial activities ‘intimately associated the District Attorney's prosecutorial immunity is substantive with the judicial phase of the criminal process.’ ” Barr v. and not something that can be corrected by a better pleading, Abrams, 810 F.2d 358, 360-61 (2d Cir. 1987) (citing Imbler I recommend that the dismissal be with prejudice.” Phillips v. Pachtman, 424 U.S. 409, 430 (1976)). This immunity v. New York, No. 5:13-CV-927, 2013 WL 5703629, at *5 encompasses “virtually all acts, regardless of motivation, (N.D.N.Y. Oct. 17, 2013) (quoting Cuoco v. Moritsugu, 222 associated with [the prosecutor's] function as an advocate.” F.3d 99, 223 (2d Cir. 2000)).9 Hill v. City of New York, 45 F.3d 653, 661 (2d Cir. 1995) (internal quotations and citation omitted). Absolute 9 Plaintiff appears to characterize his submissions as immunity applies when a prosecutor's conduct, acting as an a purported removal to federal court or suggests advocate during the judicial phase of the criminal process, that he seeks to remove his case from Montgomery “involves the exercise of discretion.” Flagler v. Trainor, County Court to this Court. See Dkt. No. 7 663 F.3d 543, 547 (2d Cir. 2011) (citing Kalina v. Fletcher, (citing 28 U.S.C. § 1441). However, in addition not demonstrated that any proceeding related to not contend that he made any efforts to obtain this complaint has been properly removed to, or counsel on his own, show proof of any attorneys is subject to removal to, this Court. See, e.g., he contacted. See Terminate Control Corp v. 28 U.S.C. § 1446. Indeed, plaintiff's submissions Horowitz, 28 F.3d 1335 (2d Cir. 1994). See Dkt. appear to indicate that plaintiff is the plaintiff in the No. 5. County Court action. See id. § 1446(a). ORDERED, that the Clerk serve this Report- Recommendation & Order on plaintiff in accordance with the Local Rules. III. Conclusion *8 It is ORDERED, that plaintiff's in forma pauperis IT IS SO ORDERED. application (dkt. no. 2) be GRANTED; and it is Pursuant to 28 U.S.C. § 636(b)(1), parties have RECOMMENDED, that plaintiff's section 1983 claims FOURTEEN (14) days within which to file written against Honorable Michael W. Smrtic; Tatiana N. Coffinger, objections to the foregoing report. Such objections shall be County/Family/Surrogate's Court Judge; and Felix Catena, filed with the Clerk of the Court. FAILURE TO OBJECT Retired Administrative Law Judge (Dkt. Nos. 1, 7) be TO THIS REPORT WITHIN FOURTEEN (14) DAYS DISMISSED WITH PREJUDICE as follows: (1) claims WILL PRECLUDE APPELLATE REVIEW. Roldan v. brought against them in their personal/individual capacities Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y for judicial immunity, and (2) claims brought against them in of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); see their official capacities for Eleventh Amendment immunity; and it is further also 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 6(a), 72.11 RECOMMENDED, that plaintiff's section 1983 claims 11 If you are proceeding pro se and are served with against Assistant District Attorney Samuel V. Maxwell (Dkt. this Report-Recommendation and Order by mail, Nos. 1, 7) be DISMISSED WITH PREJUDICE due to three (3) additional days will be added to the absolute prosecutorial immunity; and it is further fourteen (14) day period, meaning that you have seventeen (17) days from the date the Report- RECOMMENDED, that, to the extent a liberal reading Recommendation and Order was mailed to you to of the complaint may suggest that plaintiff seeks to name serve and file objections. FED. R. CIV. P. 6(d). the Appellate Division, Third Department, as a defendant If the last day of that prescribed period falls on (Dkt. Nos. 1, 7), such claims be DISMISSED WITH a Saturday, Sunday, or legal holiday, then the PREJUDICE as barred by Eleventh Amendment immunity, deadline is extended until the end of the next day and it is that is not a Saturday, Sunday, or legal holiday. Id. § 6(a)(1)(c). RECOMMENDED, that plaintiff's pro se motion for permission to file electronically (dkt. no. 4) and motion to All Citations appoint counsel10 (dkt. no. 5) be DISMISSED AS MOOT based on the above recommendations, and it is Slip Copy, 2024 WL 4870495 End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works. Title PDF Court Date Type 1. Docket 1:24-CV-00847 — N.D.N.Y. July 08, 2024 Docket Cole v. Smrtic et al Direct History (2) 1. Cole v. Smrtic 2024 WL 4870495 , N.D.N.Y. , Nov. 21, 2024 Report and Recommendation Adopted by 2. Cole v. Smrtic 2025 WL 247901 , N.D.N.Y. , Jan. 21, 2025

2025 WL 1291533 II. STANDARD OF REVIEW This Court reviews de novo those portions of a magistrate Only the Westlaw citation is currently available. judge's report-recommendation that have been properly United States District Court, N.D. New York. preserved with a specific objection. 28 U.S.C. § 636(b)(1) Scott LESSON, Plaintiff, (C). “To be ‘specific,’ the objection must, with particularity, ‘identify [1] the portions of the proposed findings, v. recommendations, or report to which it has an objection Jane DOE / State Trooper, Defendant. and [2] the basis for the objection.’ ” Petersen v. Astrue, 1:25-cv-00188 (AMN/TWD) 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012) (alteration in | original) (quoting N.D.N.Y. Local Rule 72.1(c)). If no specific Signed May 5, 2025 objections have been filed, this Court reviews a magistrate judge's report-recommendation for clear error. See Petersen, Attorneys and Law Firms 2 F. Supp. 3d at 229 (citing Fed. R. Civ. P. 72(b) advisory committee's notes to 1983 addition). Similarly, when a party SCOTT LESSON, Saratoga County Jail, 6010 County Farm files “[g]eneral or conclusory objections, or objections which Road, Ballston Spa, New York 12020, Plaintiff, pro se. merely recite the same arguments [previously] presented to the magistrate judge,” the district court reviews a magistrate judge's report-recommendations for clear error. O'Diah v. ORDER Mawhir, No. 08-cv-322, 2011 WL 933846, at *1 (N.D.N.Y. Mar. 16, 2011) (citations omitted); accord Mario v. P & Anne M. Nardacci, United States District Judge: C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) (a “statement, devoid of any reference to specific findings I. INTRODUCTION or recommendations to which [the plaintiff] objected and *1 On February 10, 2025, pro se plaintiff Scott Lesson why, and unsupported by legal authority, was not sufficient (“Plaintiff”) commenced this action pursuant to 42 U.S.C. § to preserve” a claim); Petersen, 2 F. Supp. 3d at 228-29 1983 (“Section 1983”) against an unknown New York State & n.6 (collecting cases). “When performing such a ‘clear Trooper. Dkt. No. 1 (“Complaint”). Plaintiff sought and was error’ review, ‘the court need only satisfy itself that there is granted leave to proceed in forma pauperis. Dkt. Nos. 4, 6. no clear error on the face of the record in order to accept the recommendation.’ ” Dezarea W. v. Comm'r of Soc. Sec., This matter was referred to United States Magistrate Judge No. 21-cv-01138, 2023 WL 2552452, at *1 (N.D.N.Y. Mar. Thérèse Wiley Dancks, who reviewed the Complaint pursuant 17, 2023) (quoting Canady v. Comm'r of Soc. Sec., No. 17- to 28 U.S.C. § 1915(e) and, on March 26, 2025, recommended cv-0367, 2017 WL 5484663, at *1 n.1 (N.D.N.Y. Nov. 14, that the Complaint be dismissed with leave to amend. Dkt. No. 2017)). 6 (“Report-Recommendation”). Magistrate Judge Dancks advised that pursuant to 28 U.S.C. § 636(b)(1), the parties *2 “[I]n a pro se case, the court must view the submissions had fourteen days within which to file written objections and by a more lenient standard than that accorded to ‘formal that failure to object to the Report-Recommendation within pleadings drafted by lawyers.’ ” Govan v. Campbell, 289 fourteen days would preclude appellate review. Id. at 7-8.1 F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (quoting Haines No party has filed objections to the Report-Recommendation v. Kerner, 404 U.S. 519, 520 (1972)) (additional citations and the time for filing objections has expired. omitted). The Second Circuit has held that courts are obligated to “make reasonable allowances to protect pro se 1 Citations to docket entries utilize the pagination litigants” from inadvertently forfeiting legal rights merely generated by CM/ECF, the Court's electronic filing because they lack a legal education. Id. (quoting Traguth v. system, and not the documents’ internal pagination. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). That said, “even a pro se party's objections to a Report and Recommendation For the reasons set forth below, the Court adopts the Report- must be specific and clearly aimed at particular findings in Recommendation in its entirety. the magistrate's proposal ....” Machicote v. Ercole, No. 06- cv-13320, 2011 WL 3809920, at *2, (S.D.N.Y. Aug. 25, 2011) appropriate review, “the court may accept, reject or modify, with leave to amend;2 and the Court further in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). 2 As set forth in the Report-Recommendation, any amended pleading must comply with Rules 8 and 10 of the Federal Rules of Civil Procedure. Dkt. No. III. DISCUSSION 5 at 6–7. Because no party has filed any objections to the Report-Recommendation, the Court reviews the Report- ORDERS that any amended complaint must be filed within Recommendation for clear error. thirty (30) days of the filing date of this Order; and the Court further Magistrate Judge Dancks determined that Plaintiff's allegations failed to set forth a claim for excessive force, ORDERS that, if Plaintiffs file a timely amended complaint, as Plaintiff did not identify what force the unidentified it shall be referred to Magistrate Judge Dancks for review; state trooper purportedly used against him, nor how it was and if Plaintiff fails to file a timely amended complaint, the excessive. Dkt. No. 6 at 5-6. Magistrate Judge Dancks also Clerk is directed to close this case without further order of this found that Plaintiff's allegations failed to comply with the Court; and the Court further pleading requirements set forth in the Federal Rules of Civil Procedure. Id. at 4-5. As a result, Magistrate Judge Dancks ORDERS that the Clerk serve a copy of this Order on all recommended that the Complaint be dismissed with leave to parties in accordance with the Local Rules.3 amend. Id. at 6-7. The Court agrees with Magistrate Judge Dancks’ findings and recommendations for the reasons set 3 The Clerk shall also provide Plaintiff, at both forth in the Report-Recommendation. Having reviewed the his address of record and the future address he Report-Recommendation for clear error, and found none, the provided, Dkt. No. 2, with copies of all unreported Court adopts the Report-Recommendation in its entirety. decisions herein. IT IS SO ORDERED. IV. CONCLUSION Accordingly, the Court hereby All Citations ORDERS that the Report-Recommendation, Dkt. No. 6, is Slip Copy, 2025 WL 1291533 ADOPTED in its entirety; and the Court further End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works. Direct History (2) 1. Lesson v. Doe 2025 WL 915777 , N.D.N.Y. , Mar. 26, 2025 Report and Recommendation Adopted by 2. Lesson v. Doe 2025 WL 1291533 , N.D.N.Y. , May 05, 2025 There are no Filings for this citation. 2006 WL 3463425 DISCUSSION Only the Westlaw citation is currently available. NOT FOR PUBLICATION Standard of Review United States District Court, In reviewing Mr. Shelton's request, the Court is mindful that E.D. New York. because he is proceeding pro se, his submissions should be held “to less stringent standards than formal pleadings drafted In re Thomas SHELTON. by lawyers.” Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980). Furthermore, his pleadings must be read No. 06-CV-6132 CBA. liberally and interpreted as raising the strongest arguments | they suggest. McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Nov. 30, 2006. Cir.2004); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994). If a liberal reading of the complaint “gives any indication that Attorneys and Law Firms a valid claim might be stated,” this Court must grant leave to Thomas Shelton, Cape Vincent, NY, pro se. amend the complaint. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000); Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir.1999). ORDER However, “[i]t is axiomatic that federal courts are courts of AMON, United States District Judge: limited jurisdiction and may not decide cases over which they lack subject matter jurisdiction. Unlike failure of personal *1 On November 8, 2006, Thomas Shelton, who is is jurisdiction, failure of subject matter jurisdiction is not incarcerated at Cape Vincent Correctional Facility, filed a waivable and may be raised at any time by a party or by the document with the Court styled as a “Freedom of Information court sua sponte. If subject matter jurisdiction is lacking, the Request.” This Court may not act on Mr. Shelton's request for action must be dismissed.” Lyndonville Sav. Bank & Trust Co. information as stated. However, in an abundance of caution, v. Lussier, 211 F.3d 697, 700-01 (2d Cir.2000) (citing Bender the Clerk of Court has been directed to assign a docket number v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. to this case, solely for the purpose of this Order. In order to 1326, 89 L.Ed.2d 501 (1986); United Food & Commercial proceed with this action in federal court, Mr. Shelton must file Workers Union, Local 919 v. CenterMark Props. Meriden a complaint and either pay the filing fee or submit a request to Square, Inc., 30 F.3d 298, 301 (2d Cir.1994)). Federal subject proceed in forma pauperis and a Prisoner Authorization form matter jurisdiction is available only when a “federal question” within thirty (30) days of the date of this Order. is presented, or when plaintiff and defendant are of diverse citizenship and the amount in controversy exceeds $75,000. To invoke federal question jurisdiction, the plaintiff's claim(s) Mr. Shelton's Submission must arise “under the Constitution, laws, or treaties of the The document received by the Court consists of a three- United States.” 28 U.S.C. § 1331. page handwritten request “made pursuant to Title 5 U.S.C.A. Subsection 522 and the Sarbanes Oxley Act of 2002” and addressed to the U.S. District Court Eastern District of NY. The FOIL/FOIA Request Mr. Shelton requests “ ‘All’ civil and/or criminal active and/or *2 Mr. Shelton cites to both state and federal laws providing inactive existing records and/or files social security account/ access to government records. The New York Freedom of I.R.S. account number # XXX-XX-XXXX and original Information Law, Public Officers Law § 84 et seq. (“FOIL”) case number # 02922-2003 STAT of New York County allows individuals to request disclosure of records collected Queens v. Thomas Shelton” and other materials. Mr. Shelton by New York state agencies, subject to certain statutory additionally asks that “If you/your office do not have these exemptions. If the initial request is denied, the requester document mentioned above, please foward this FOIL to the may appeal the denial first to the “head, chief executive correct department so I my recive these documents.” [sic ]. or governing body” of the entity or agency in possession of the documents, and, thereafter, by commencing a special proceeding in New York State courts under Article 78 of the § 89(4)(a) and (b). Federal courts do not have jurisdiction to of the claim showing that the pleader is entitled to relief, and enforce state laws granting public access to official records. (3) a demand for judgment for the relief the pleader seeks.” Fed.R.Civ.P. 8(a). Moreover, in order to bring a complaint in federal court, Mr. Shelton must either pay the filing fee The federal Freedom of Information Act, 5 U.S.C. § 552 et or seek leave of the Court to proceed in forma pauperis. seq. (“FOIA”) created a judicially enforceable public right of Under 28 U.S.C. § 1914, the filing fee to commence a civil access to information collected by executive branch agencies, action is $350. Under 28 U.S.C. § 1915, the Court may waive subject to specified limitations. FOIA requests must be made the filing fee upon finding a plaintiff indigent. However, the to the specific agency, may be administratively appealed to Prison Litigation Reform Act (“PLRA”) requires prisoners the head of the agency, and ultimately are appealable to to pay the full filing fee from their prison accounts as funds federal courts. 5 U.S.C. § 552(a)(4)(B). However, federal become available. For Mr. Shelton's convenience, the Court court jurisdiction “is dependent upon a showing that an agency has (1) ‘improperly;’ (2) ‘withheld;’ (3) ‘agency has attached the forms for application to proceed in forma records,” ’ Kissinger v. Reporters Committee for Freedom of pauperis and the Prisoner Authorization for disbursement of funds pursuant to the PLRA. the Press, 445 U.S. 136, 150, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980), and the requester must first exhaust his administrative remedies, Ruotolo v. Department of Justice, 53 F.3d 4, 8 (2d Cir.1995). CONCLUSION To the extent that Mr. Shelton seeks information from state *3 Mr. Shelton shall have thirty (30) days from the date of agencies, such as the Queens County Court, this Court does this Order to file a complaint that complies with Rule 8. The not have jurisdiction over requests made pursuant to the state Complaint must be accompanied by the filing fee or by the FOIL. The federal FOIA applies only to federal agencies, and application to proceed without prepayment of fees and the not to state agencies. See e.g. Grand Cent. Partnership, Inc. Prisoner Authorization to disburse funds from the prison trust v. Cuomo, 166 F.3d 473, 484 (2d Cir.1999). To the extent fund account. No summons shall issue at this time and all that Mr. Shelton seeks information from federal agencies such further proceedings shall be stayed for thirty (30) days. The as the IRS, he has not indicated that he has filed a FOIA Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any request, that such request was initially denied, nor that he has appeal from this Order would not be taken in good faith. See exhausted his administrative remedies. Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). Although this Court can discern no federal question that would give this Court jurisdiction over Mr. Shelton's request, SO ORDERED. the Court is mindful of Mr. Shelton's pro se status. Accordingly, the Court grants leave to file a complaint. Rule All Citations 8 of the Federal Rules of Civil Procedure provides that, in order to state a claim for relief, a complaint must contain “(1) Not Reported in F.Supp.2d, 2006 WL 3463425 a short and plain statement of the grounds upon which the End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works. Title PDF Court Date Type 1. Docket 1:06cv06132 — E.D.N.Y. Nov. 08, 2006 Docket ASSIGNED TO: JUDGE CAROL B. AMON REFERRED TO: MAGISTRATE-JUDGE LOIS BLOOM CAUSE: 42:1983 PRISONER CIVIL RIGHTS DATE FILED: 11/08/2006 JURY DEMAND: NONE NATURE OF SUIT: 550 PRISONER: CIVIL RIGHTS JURISDICTION: FEDERAL QUESTION IN RE THOMAS SHELTON REPRESENTED BYTHOMAS SHELTON 04R0515 CAPE VINCENT CORRECTIONAL FACILITY ROUTE 12E PO BOX 739 CAPE VINCENT, NY 13618 US PRO SE There are no History results for this citation.