Valerie Flores v. Jennifer Mnookin; Jay Rothman; and Shannon Blomstrom Koratko

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _____________________________________________

VALERIE FLORES,

Plaintiff,

v. 1:26-CV-0148 (GTS/ML) JENNIFER MNOOKIN; JAY ROTHMAN; and SHANNON BLOMSTROM KORATKO,

Defendants. _____________________________________________

APPEARANCES: OF COUNSEL:

Valerie Flores Plaintiff, Pro Se Post Office Box 1110 ACP 5749 Albany, New York 12201

MIROSLAV LOVRIC, United States Magistrate Judge

ORDER and REPORT-RECOMMENDATION Plaintiff Valerie Flores (“Plaintiff”) filed this pro se complaint against Defendants Jennifer Mnookin, Jay Rothman, and Shannon Blomstrom Koratko (collectively “Defendants”) alleging violations of her rights. (Dkt. No. 1.) Plaintiff did not pay the filing fee and seeks leave to proceed in forma pauperis (“IFP”). (Dkt. No. 21.) For the reasons set forth below, I (1) grant Plaintiff’s third amended IFP application, and (2) recommend that the Complaint be dismissed in its entirety without leave to amend. I. BACKGROUND Construed as liberally1 as possible, the Complaint alleges violations of Plaintiff’s rights by Defendants. (See generally Dkt. No. 1.) More specifically, the Complaint alleges that Defendants engaged in a campaign of

harassment dating back to 2012 whereby they utilized personalized license plates and individuals by the name of Jennifer to harass Plaintiff. (Id.) The Complaint appears to assert claims of “[a]ggravated harassment” and interstate stalking. (Dkt. No. 1 at 3.) As relief, Plaintiff seeks $4,000,000 in damages. (Dkt. No. 1 at 4.) II. PLAINTIFF’S THIRD AMENDED APPLICATION TO PROCEED IN FORMA PAUPERIS When a civil action is commenced in a federal district court, the statutory filing fee, currently set at $405, must ordinarily be paid. 28 U.S.C. § 1914(a). A court is authorized, however, to permit a litigant to proceed IFP status if a party “is unable to pay” the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1).2 After reviewing Plaintiff’s third amended

1 The court must interpret pro se complaints to raise the strongest arguments they suggest. Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). 2 The language of that section is ambiguous because it suggests an intent to limit availability of IFP status to prison inmates. See 28 U.S.C. § 1915(a)(1) (authorizing the commencement of an action without prepayment of fees “by a person who submits an affidavit that includes a statement of all assets such prisoner possesses”). The courts have construed that section, however, as making IFP status available to any litigant who can meet the governing financial criteria. Hayes v. United States, 71 Fed. Cl. 366, 367 (Fed. Cl. 2006); Fridman v. City of N.Y., 195 F. Supp. 2d 534, 536 n.1 (S.D.N.Y. 2002). IFP application (Dkt. No. 21), the Court finds that Plaintiff meets this standard.3 Therefore, Plaintiff’s third amended application to proceed IFP is granted.4 III. LEGAL STANDARD FOR REVIEW OF THE COMPLAINT “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). In order to state a claim upon which relief can be granted, a complaint must contain, inter alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The requirement that a plaintiff “show” that he or she is entitled to relief means that a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 [2007]). “Determining whether a complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial

experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged–but it has not shown–that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (internal citation and punctuation omitted).

3 Plaintiff is a prolific filer; she is cautioned that proceeding IFP is a privilege, not an unqualified right. The continued filing of frivolous lawsuits may result in the denial of a request to proceed IFP in an action. 4 Plaintiff is reminded that, although her IFP application has been granted, she is still required to pay fees that she may incur in this action, including copying and/or witness fees. “In reviewing a complaint . . . the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff’s favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal

conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); see also Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam) (reading the plaintiff’s pro se complaint “broadly, as we must” and holding that the complaint sufficiently raised a cognizable claim). “[E]xtreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and [the] parties . . . have had an opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983). IV. ANALYSIS In addressing the sufficiency of a plaintiff’s complaint, the court must construe her

pleadings liberally. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Having reviewed Plaintiff’s Complaint with this principle in mind, I recommend that all causes of action be dismissed. First, Plaintiff's Complaint is frivolous and nonsensical. By way of example, in the portion of the form Complaint which solicits the location of the events giving rise to her claims, Plaintiff alleges as follows: They have been all over the country in multiple states harrassing me with personalized plates & just plain terrorizing me & started doing this to me in 2012. It affects my everyday life what they have been doing to me. (Dkt. No. 1 at 4 [errors in original].) Moreover, in the portion of the form Complaint asking the date and approximate time of the events giving rise to her claims, Plaintiff alleges: 2012 – ongoing (all over the continental United States) I received a harrassing text from a Rx company and the woman’s name was Jennifer. (Id. [errors in original].) Further, in the portion of the form Complaint soliciting the facts underlying her claims, Plaintiff alleges as follows: I have submitted multiple pictures in multiple cases of personalized plates. One police agency acknowledged that they believed UW-Madison to be the culprits. This terror has gone on for 14 years. I have a cracked windshield currently & believe I have been dealing with vandalism to my car since 2012. Jay Rothman stole a souvenoir I had in my purse that was in no way contraband & may have stolen it again & they may be trying to sell the maroon North Face purse on E-bay (in Ohio). Its stolen. (Dkt. No. 1 at 5 [errors in original].) Plaintiff's claims are precisely the type of fanciful or delusional allegations that warrant dismissal under 28 U.S.C. § 1915(e)(2)(B)(i) as factually frivolous. See, e.g., Gladney v. Pendleton Corr. Facility, 302 F.3d 773, 774 (7th Cir. 2002) (holding that suit may be dismissed where facts alleged in complaint are “so nutty (‘delusional’ is the polite word) that they're unbelievable, even though there has been no evidentiary hearing to determine their truth or falsity”); Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (explaining that an action is frivolous when “the factual contentions are clearly baseless, such as when allegations are the product of delusion or fantasy”) (internal quotation marks omitted). As a result, I recommend that Plaintiff's Complaint be dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). Second, in the alternative, I recommend that the Complaint be dismissed for failure to state a claim upon which relief may be granted. More specifically, to the extent that Plaintiff asserts a claim of interstate stalking pursuant to 18 U.S.C. § 2261(a), it is a criminal statute and does not “confer a private right of action on Plaintiff.” Flores v. KW Call Center Services, 26-CV-0122, 2026 WL 1481648, at *3 (N.D.N.Y. May 27, 2026) (Sannes, C.J.). As a result, I recommend that any claims under 18 U.S.C. § 2261(a) be dismissed. See Fata v. Arcelly, 26-CV-2185, 2026 WL 1831673, at *7 (E.D. Pa. June 25, 2026) (citing Weisman v. Baur, 20-CV-6100, 2021 WL 3403519, at *2 (E.D. Pa. Aug. 4, 2021) (dismissing civil claim brought under 18 U.S.C. § 2261A); Humphrey v. Pa. Ct. of

Common Pleas of Phila., 20-CV-2335, 2021 WL 268498, at *2 n.3 (E.D. Pa. Jan. 27, 2021) (“[N]umerous federal courts have held that no private right of action exists under [the Violence Against Women Act, 18 U.S.C. § 2261-2262].”)) (holding that “there is no private right of action under [18 U.S.C. § 2261A].”). Further, to the extent that the Complaint is construed as asserting a claim of aggravated harassment under New York Penal Law §240.30, there is no private right of action for violation of this criminal statute. Cruz v. New York City Transit, 24-CV-0089, 2025 WL 209598, at *10 (S.D.N.Y. Jan. 16, 2025), report and recommendation adopted by, 2025 WL 618557 (S.D.N.Y. Feb. 26, 2025). Moreover, to the extent that Plaintiff’s stalking and harassment claims are construed as

pursuant to New York common law, New York does not recognize private causes of action for harassment and stalking. Thus, I recommend that those claims be dismissed. Graham v. UMG Recordings, Inc., 806 F. Supp. 3d 454, 476 (S.D.N.Y. 2025) (“New York does not recognize a civil cause of action for harassment.”); Jones v. L3 Harris, 730 F. Supp. 3d 26, 29 (W.D.N.Y. 2024) (citing Robinson v. Williams, 22-CV-0982, 2023 WL 3352758, at *9 (N.D.N.Y. Jan. 12, 2023) (Lovric, M.J.), adopted 2023 WL 2986825 (N.D.N.Y. Apr. 18, 2023)) (“It is well-settled that ‘there is no private cause of action for stalking or general harm.’”). As a result, I recommend, in the alternative, that the Complaint be dismissed for failure to state a claim upon which relief may be granted. V. OPPORTUNITY TO AMEND Generally, a court should not dismiss claims contained in a complaint filed by a pro se litigant without granting leave to amend at least once “when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Branum v. Clark, 927 F.2d 698, 704-05

(2d Cir. 1991); see also Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave when justice so requires.”). An opportunity to amend is not required, however, where “the problem with [the plaintiff’s] causes of action is substantive” such that “better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact sufficient to support its claim, a complaint should be dismissed with prejudice.”). Stated differently, “[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993); accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.).5

Here, a better pleading could not cure the deficiencies identified with Plaintiff’s claims. Although the usual practice is to allow leave to replead a deficient complaint, see Fed. R. Civ. P. 15(a); see also Ronzani v. Sanofi, S.A., 899 F.2d 195, 198 (2d Cir. 1990), especially where a complaint has been submitted pro se, see Davidson v. Flynn, 32 F.3d 27, 31 (2d Cir. 1994), “a court may dismiss a case without allowing leave to amend ‘where the substance of the claim

5 See also Carris v. First Student, Inc., 132 F. Supp. 3d 321, 340-41 n.1 (N.D.N.Y. 2015) (Suddaby, C.J.) (explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999)—that the Court should grant leave to amend “unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would be successful in stating a claim”—is likely not an accurate recitation of the governing law after Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev’d on other grounds, 682 F. App’x 30. pleaded is frivolous on its face,’” Harris v. U.S. Secret Serv., 605 F. Supp. 3d 410, 414 (N.D.N.Y. 2022) (quoting Salahuddin, 861 F.2d at 42, and dismissing complaint without leave to amend because the plaintiff's claim rested “solely on his demonstrably false belief that he is president” and “granting leave would not cure the defects of the complaint”).

“Plaintiff's claims in this case are based on fantastical allegations that scores of [individuals are harassing her using personalized license plates and she has interacted with women named Jennifer throughout the course of the last fourteen years]. Affording Plaintiff an opportunity to amend would not cure the fact that the substance of h[er] complaint is factually frivolous on its face.” Lang v. Clinton, 761 F. Supp. 3d 595, 602 (W.D.N.Y. 2024), appeal dismissed, No. 25-126, 2025 WL 1982319 (2d Cir. May 21, 2025), cert. denied, No. 25-7273, 2026 WL 1855058 (U.S. June 29, 2026). As a result, I recommend that the Court decline to grant Plaintiff leave to amend. PLAINTIFF IS ADVISED THAT SHE SHOULD NOT SEEK TO FILE A MOTION TO AMEND HER COMPLAINT UNTIL UNITED STATES DISTRICT JUDGE SUDDABY

RULES ON THIS COURT’S RECOMMENDATIONS WITH RESPECT TO PLAINTIFF’S COMPLAINT. ANY AMENDED COMPLAINT OR MOTION TO AMEND BEFORE JUDGE SUDDABY’S DECISION WITH RESPECT TO THIS COURT’S RECOMMENDATIONS WILL BE STRICKEN AS PREMATURE AND WILL NOT BE CONSIDERED BY THE COURT. As noted below, however, Plaintiff may file objections to this Court’s recommendations. ACCORDINGLY, it is ORDERED that Plaintiff’s third amended application to proceed in forma pauperis (Dkt. No. 21) is GRANTED; and it is further respectfully RECOMMENDED that Plaintiff's Complaint (Dkt. No. 1) be DISMISSED in its entirety without leave to amend pursuant to 28 U.S.C. § 1915(e)(2)(B); and it is further respectfully ORDERED that the Clerk of the Court shall file a copy of this Order and Report- Recommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules.° NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report.’ Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).

Dated: September 9 , 2026 Binghamton, New York

Miroslav Lovric U.S. Magistrate Judge

6 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). 7 If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). 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. P. 6(a)(1)(C).

1997 WL 599355 amended complaint alleging the specific acts committed by Only the Westlaw citation is currently available. the individuals named as defendants which Brown claimed United States District Court, N.D. New York. violated his constitutional rights. Brown filed an amended complaint on March 21, 1996. In his amended complaint, Kenneth BROWN, Plaintiff, Brown alleged that defendants violated his rights under the v. Eighth and Fourteenth Amendments by failing to process Andrew PETERS, Warden, Watertown Correctional properly his interstate compact paperwork, resulting in Brown Facility; Joseph Williams, Warden, Lincoln Work– being imprisoned pursuant to a parole hold when in fact he had never violated the conditions of his parole. For a Release Center; Francis J. Herman, Senior Parole more complete statement of Brown's claims, see his amended Officer Interstate Bureau; T. Stanford, Senior Parole complaint. Dkt. No. 5. Officer; Deborah Stewart, Parole Officer; John Doe # 1, Parole Agent, Watertown Correctional Facility; John On August 5, 1996, defendants Peters and Williams made Doe # 2, Parole Agent, Lincoln Work Release Center; a motion to dismiss for failure to state a claim pursuant to Susan Bishop, Director of Interstate Compact, South Fed.R.Civ.P. 12(b)(6). Dkt. No. 13; Dkt. No. 14, at 2. On Carolina; Cecil Magee, Parole Officer, South Carolina; August 19, 1996, defendants Bishop, Magee, Barton, and Frank Barton, Parole Officer, South Carolina; John McMahan made a motion to dismiss the complaint against McMahan, Parole Officer, South Carolina, Defendants. them or, in the alternative, for summary judgment. Dkt. No. 20. On October 17, 1996, defendants Herman, Stewart, and No. Civ.A. 95CV1641RSPDS. Stanford made a motion to dismiss for failure to state a claim. Dkt. No 34. On April 17, 1996, Magistrate Judge Sept. 22, 1997. Scanlon recommended that all defendants' motions to dismiss be granted and that the complaint be dismissed. Dkt. No. 50. Attorneys and Law Firms On June 9, 1997, Brown filed objections to the Kenneth Brown, State Court Institute–Greene, Waynesburg, magistrate judge's report-recommendation, having been PA, plaintiff, pro se. granted additional time in which to do so. Dkt. No. 52. In Dennis C. Vacco, New York State Attorney General, The addition, Brown filed on June 9, 1997, a motion for leave to Capitol Albany, NY, for defendants Peters, Herman Stewart, file a second amended complaint and a copy of his proposed Doe # 1, Doe # 2, and Williams, Jeffrey M. Dvorin, Assistant amended complaint. Dkt. No. 53. I turn first to the last motion Attorney General, Carl N. Lundberg, Chief Legal Counsel, filed, Brown's motion for leave to amend his complaint a South Carolina Department of Probation, Columbia, SC, for second time. defendants Bishop, Magee, Barton, McMahan, and Stanford, Carl N. Lundberg, of Counsel. Brown seeks to file a second amended complaint “setting forth in detail the personal involvement of each defendant and how their acts of commission and omission served to DECISION AND ORDER deprive plaintiff of Constitutionally secured rights.” Dkt. No. 53. The district court has discretion whether to grant leave POOLER, J. to amend. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir.1993). In exercising that discretion, the court *1 The above matter comes to me following a Report– should freely grant leave to amend when justice so requires. Recommendation by Magistrate Judge Daniel Scanlon, Jr., Fed.R.Civ.P. 15(a). However, the court need not grant leave duly filed on April 17, 1997. Following ten days from the to amend where it appears that amendment would prove to be service thereof, the Clerk has sent me the entire file, including unproductive or futile. Ruffolo, 987 F.2d at 131. any and all objections filed by the parties herein. Here, Brown moved to amend his complaint to add additional Plaintiff Kenneth Brown commenced this Section 1983 civil allegations against the named defendants. However, the rights action on November 17, 1995. On February 12, additional allegations fail to cure the deficiency which the absence of defendants' personal involvement in a to which specific, written objection has been made.” Brown's constitutional deprivation. Section 1983 imposes liability objections fail to address directly any of the analysis. upon an individual only when personal involvement of that Brown's objections state (1) that he has been deprived of individual subjects a person to deprivation of a federal right. his constitutional rights; (2) that he has stated a cause of See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. action; (3) that the court wrongly refused to appoint an 2018, 56 L.Ed.2d 611 (1978). A complaint is fatally defective attorney for him and wrongly stayed discovery pending the if it fails to allege personal involvement sufficient to establish outcome of these motions; (4) that he seeks to file an amended that a supervisor was “directly and personally responsible for complaint; (5) the standard of review for a Fed.R.Civ.P. 12(b) the purported unlawful conduct.” Alfaro Motors, Inc. v. Ward, (6) motion; (6) that he disagrees with the magistrate judge's 814 F.2d 883, 886 (2d Cir.1987). recommendation to grant defendants' motions because the allegations in his complaint, which he repeats, show that his *2 Brown's proposed amended complaint alleges in rights were violated; and (7) the text of the Fourteenth and conclusory fashion that defendants acted “in a grossly Eighth Amendments. negligent and concerted manner which breached their duties owed to Plaintiff and is the proximate cause of [the violation Even affording the objections the liberal reading required of plaintiff's constitutional rights].” Proposed Am. Compl., for pro se pleadings, I find that these objections fail to at 3. Brown continues in the same vein, stating that state any basis whatsoever, much less a specific one, for defendants owed duties to plaintiff to carry out their jobs in a the court not to adopt the magistrate judge's rulings. They professional manner and they failed to carry out those duties simply re-state the relief sought and the facts on which Brown appropriately. The complaint states that defendants held grounds his complaint and conclude that the magistrate specific responsibilities, such as checking for outstanding judge's conclusions are wrong. When the parties make only warrants, which if performed properly should have alerted frivolous, conclusive, or general objections, the court reviews them to a problem. However, nowhere does the complaint the report-recommendation for clear error. See Camardo v. set forth allegations that these defendants either participated General Motors Hourly–Rate Employees Pension Plan, 806 directly in any constitutional infraction or that they were even F.Supp. 380, 382 (W.D.N.Y.1992) (court need not consider aware of such an infraction. The proposed amended complaint objections which are frivolous, conclusive, or general and merely alleges that these defendants failed in performing their constitute a rehashing of the same arguments and positions supervisory and ministerial functions. “These bare assertions taken in original pleadings); Chambrier v. Leonardo, 1991 do not state a claim under 42 U.S.C. § 1983.” Smiley v. Davis, WL 44838, *1 (S.D.N.Y.) (restatement of allegations already 1988 WL 78306, *2 (S.D.N.Y.). before the court and assertion that valid constitutional claim exists insufficient to form specific objections); Schoolfield This plaintiff previously has had the opportunity to amend his v. Dep't of Correction, 1994 WL 119740, *2 (S.D.N.Y.) complaint for the same reason asserted here, to allege personal (objections stating that magistrate judge's decisions are involvement on the part of defendants. Brown's first amended wrong and unjust, and restating relief sought and facts complaint failed to accomplish that task, and it appears that upon which complaint grounded, are conclusory and do not even if allowed to amend again Brown would be unable to form specific basis for not adopting report-recommendation); make the requisite allegations with sufficient specificity to Vargas v. Keane, 1994 WL 693885, *1 (S.D.N.Y.) (general sustain his complaint. Consequently, I find that amendment objection that report does not address violation of petitioner's would be futile, and I deny Brown's motion for leave to amend constitutional rights is a general plea that report not be his complaint. adopted and cannot be treated as objection within the meaning of 28 U.S.C. § 636), aff'd, 86 F.3d 1273 (2d Cir.), cert. I turn now to the magistrate judge's report-recommendation denied, 519 U.S. 895, 117 S.Ct. 240, 136 L.Ed.2d 169 and defendants' motions. The magistrate judge recommends (U.S.1996). See also Scipio v. Keane, 1997 WL 375601, *1 that I grant defendants' motions and dismiss the complaint (1997) (when objections fail to address analysis directly, court as to all defendants. The report-recommendation clearly reviews report-recommendation for clear error); Fed.R.Civ.P. describes the grounds on which the magistrate judge 72(b), Advisory Comm. Note (when no specific, written recommends dismissal as to each defendant. Fed.R.Civ.P. objections filed, “court need only satisfy itself that there is 72(b) requires the district judge to make a de novo recommendation”). Correctional Facility in Watertown, New York. He applied for an interstate compact because he wanted to return to *3 Because Brown fails to make specific objections or South Carolina to live with his common law wife, Pamela provide any basis for his general objections, I review the Reid. During the application process, he was interviewed by report-recommendation for clear error. After careful review, the facility's parole officer, identified only as defendant John I conclude that the magistrate judge's report-recommendation Doe # 1. After signing the necessary papers, his application is well-reasoned and is not clearly erroneous.1 The was forwarded to defendant Andrew Peters, the facility's magistrate judge employed the proper standard, accurately superintendent, who reviewed, signed and forwarded the recited the facts, and reasonably applied the law to those facts. papers to the Interstate Bureau. Amend. Compl. at ¶¶ 1–2; Consequently, I adopt the report-recommendation. Exs. A, B. On or about January 15, 1992, while his compact was waiting for review at the Interstate Bureau, plaintiff was approved for CONCLUSION work release and sent to the Lincoln Work Release Center in New York City. While at the center, plaintiff spoke to a Because plaintiff's proposed amendment demonstrates that parole officer, defendant John Doe # 2, and told him that amendment would be futile, I deny plaintiff's motion for leave he was seeking a compact that would return him to South to amend his complaint. I approve the magistrate judge's Carolina upon his conditional release. Plaintiff claims the recommendation and grant defendants' motions to dismiss. parole officer told him that he would handle the necessary Plaintiff's complaint is dismissed in its entirety. paperwork, although the officer had had no experience with an interstate compact. Amend. Compl. at ¶¶ 3, 4. IT IS SO ORDERED. *4 Plaintiff, meanwhile, asked Reid whether any officials had contacted her in South Carolina regarding his prospective ORDER and REPORT–RECOMMENDATION residence in that state. Upon discovering no one had contacted her, plaintiff asked a lawyer he knew, Navron Ponds, to This matter was referred to the undersigned for report and inquire as to his compact status. In March, 1992, the recommendation by the Hon. Rosemary S. Pooler, United lawyer spoke with defendant Susan Bishop, who is the States District Judge, by Standing Order dated November director of the interstate compact program in South Carolina. 12, 1986. Currently before this Court are a number of Bishop allegedly told Ponds that plaintiff “was disapproved motions. Defendants Peters and Williams have filed a motion because there was a discrepancy about approving plaintiff['s] to dismiss (dkt.13); defendants Bishop, Magee, Barton and compact.” The “discrepancy” was the fact that plaintiff owed McMahan have filed a motion for summary judgment, or in the state of South Carolina eighty-six days of confinement the alternative to dismiss (dkt.20); and defendants Herman, from a previous sentence. Plaintiff claims Bishop told Ponds Stewart and Stanford also have filed a motion to dismiss to contact defendants Cecil Magee and Frank Barton, who (dkt.34). Plaintiff opposes these three motions (dkts.27, 29, worked for the South Carolina Parole Department. Sometime 33, 38). Defendants Bishop, Magee and McMahan have filed in March, 1992, Ponds made some calls to Barton and Magee. a motion to stay discovery (dkt.41) and plaintiff has filed a A verbal agreement was reached, and plaintiff, upon speaking motion to extend time (dkt.44) in which to file opposition to with Barton and Magee was told that his compact had been the latter motion for a stay of discovery. approved. He also was told that he should report to the South Carolina Department of Parole upon being released. Amend. The Court addresses these issues seriatim. Compl. at ¶¶ 5–7. Prior to leaving the Lincoln Work Release Center, plaintiff BACKGROUND processed paperwork related to his interstate compact. His paperwork was sent by Doe # 2 to defendant Joseph Williams, Plaintiff's amended complaint, which he has brought pursuant the superintendent of the center. Williams reviewed, signed to 42 U.S.C. § 1983, alleges the following facts. In and returned the paperwork to plaintiff. On May 1, 1992, Carolina. Three days later, he entered a South Carolina parole DISCUSSION office and promptly was arrested because of the eighty- six days of confinement that he owed the state. Plaintiff's A. Motion to Dismiss by Williams and Peters. paperwork was given to defendant John McMahan, a parole Williams and Peters have filed a motion to dismiss plaintiff's officer. Plaintiff claims that McMahan never returned this complaint pursuant to FED.R.CIV.P. 12(b)(6) on the grounds paperwork to him. On May 20, 1992, the state of South that it fails to state a claim upon which relief may be Carolina revoked plaintiff's parole and plaintiff was returned granted. In a Rule 12(b)(6) motion, all factual allegations to prison to serve the eighty-six days that he owed. When he in the complaint must be taken and construed in plaintiff's asked McMahan what would happen to his one year of parole favor. See LaBounty v. Adler, 933 F.2d 121, 122 (2d from New York, the officer allegedly told him that his New Cir.1991) (citing Ortiz v. Cornette, 867 F.2d 146, 149 (1989)). York parole would run concurrently with his South Carolina The Court's role is not to assess whether plaintiffs have parole, and that when he finished his South Carolina parole, raised questions of fact or demonstrated an entitlement he would not owe any parole whatsoever. Plaintiff served the to a judgment as a matter of law, as in a motion made eighty-six days he owed and was released on July 31, 1992. pursuant to FED.R.CIV.P. 56 for summary judgment, but Amend. Compl. at ¶¶ 8–10. rather to determine whether plaintiff's complaint sufficiently alleges all of the necessary legal elements to state a claim In February, 1993, plaintiff was arrested on robbery charges under the law. See Christopher v. Laidlaw Transit, Inc. in South Carolina. The charges ultimately were dropped, 899 F.Supp. 1224, 1226 (S.D.N.Y.1995), (citing Ricciuti v. but he apparently encountered some difficulties regarding New York City Transit Authority, 941 F.2d 119, 124 (2d this arrest as a result of a parole hold that New York state Cir.1991)). Factual allegations in brief or memoranda may not had placed upon him. Bishop's office told him that it had be considered. Fonte v. Board of Managers of Continental nothing to do with his parole hold and that any problem that Towers Condominium, 848 F.2d 24, 25 (2d Cir.1988). The he had was between him and the state of New York. He Court now turns to the issues presented. talked to authorities in Albany, New York regarding the parole hold, but was not successful in his efforts to have the hold Personal involvement of defendants in alleged constitutional removed. On September 30, 1993, after had been extradited deprivations is a prerequisite to an award of damages under to New York as a fugitive from justice, plaintiff was given a § 1983. Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994). preliminary hearing at Riker's Island, New York. The hearing As superintendents at New York State Correctional facilities, officer found no probable cause that plaintiff had violated any Williams and Peter may be found personally involved in the condition of parole. He was released. Amend. Compl. at ¶¶ alleged deprivation of plaintiff's constitutionally protected 11–14; Exs. C–J. rights by a showing that they: (1) directly participated in the infraction; (2) knew of the infraction, but failed to remedy *5 Plaintiff claims that he would not have suffered hardships the wrong; (3) created or continued a policy or custom under if his interstate compact had been handled correctly. He which unconstitutional practices occurred; or (4) were grossly alleges that defendant Deborah Stewart failed to follow up negligent in managing subordinates who caused unlawful and see whether plaintiff had arrived in South Carolina. If she conditions or events. Id., (quoting Williams v. Smith, 781 had, he argues, she would have discovered that he had been F.2d 319, 323–24 (2d Cir.1986)). Supervisory liability also arrested upon his arrival. He alleges that defendant Francis may be imposed against Williams or Peters with a showing Herman, a parole officer at the Interstate Bureau failed to of gross negligence or deliberate indifference to plaintiff's do his job by not investigating plaintiff's violation reports. constitutional rights. Id. Absent some personal involvement Amend. Compl. at ¶¶ 15–17; Exs. F–I. by Williams or Peters in the allegedly constitutionally infirm conduct of their subordinates, neither can be held liable under Plaintiff asserts that the foregoing amounts violations of his § 1983. Gill v. Mooney, 824 F.2d 192, 196 (2d Cir.1987). Eighth and Fourteenth Amendment rights, wherefore he both compensatory and declaratory relief. *6 Plaintiff has not provided any evidence linking either Williams or Peters to his alleged constitutional deprivations. All that plaintiff has alleged is that Williams and Peters, as superintendents, have reviewed and signed paperwork that pro se complaints are held to “less stringent standards alleging that he was the appointed Senior Parole Officer at than formal pleadings drafted by lawyers” for the purpose of a plaintiff's September 30, 1993 revocation hearing at Riker's motion to dismiss under Rule 12(b)(6), Haines v. Kerner, 404 Island, plaintiff does not detail how Stanford violated his U.S. 519, 520, 92 S.Ct. 594, 595–96, 30 L.Ed.2d 652 (1972), constitutional rights. Absent some personal involvement by plaintiff has not explained how the ministerial conduct of Stanford in the allegedly constitutionally infirm conduct of these two defendants was violative of the Constitution. Their his subordinates, he cannot be held liable under § 1983. Gill, motion to dimiss should be granted. 824 F.2d at 196. *7 Accordingly, the Court finds that Stanford, Stewart and B. Motion for Summary Judgment or to Dismiss by Bishop, Herman's motion to dismiss should be granted. Magee, Barton and McMahan. Bishop, Magee, Barton and McMahan have filed a motion for summary judgment, or in the alternative a motion to D. Plaintiff's “John Doe” Claims. dismiss. The Court will treat their motion as a motion to In so far as neither John Doe # 1 nor John Doe # 2 have been dismiss. “[C]omplaints relying on the civil rights statutes are identified and served in this matter, the Court does not have insufficient unless they contain some specific allegations of jurisdiction over these parties and does not reach the merits fact indicating a deprivation of rights, instead of a litany of plaintiff's claims against them. of general conclusions that shock but have no meaning.” Barr v. Adams, 810 F.2d 358, 363 (2d Cir.1987). Plaintiff has not alleged specifically how the conduct of these four E. Discovery Motions. defendants infringed upon his constitutional rights. In his Defendants Bishop, Magee and McMahan have filed a motion amended complaint, he contends that defendants violated the to stay discovery until the Court has made a ruling on their Constitution by “continuously breaching [[[their] duty” to motion to dismiss. Plaintiff has filed a motion to extend him. This language underscores the defect with the complaint: the time in which he may file opposition to defendants' if it alleges anything at all, it alleges that defendants were motion. Plaintiff, however, has filed his opposing response negligent in handling plaintiff's interstate compact and parole. (dkt.47), therefore his instant discovery motion is denied as To state a cognizable § 1983 claim, the prisoner must allege moot. In that the Court recommends granting defendants' actions or omissions sufficient to demonstrate deliberate motion to dismiss, discovery in this matter would be fruitless. indifference; mere negligence will not suffice. Hayes v. Accordingly, defendants' motion for a stay of discovery New York City Dept. of Corrections, 84 F.3d 614, 620 (2d pending the resolution of their motion to dismiss is granted. Cir.1996); Morales v. New York State Dep't of Corrections, 842 F.2d 27, 30 (2d Cir.1988) (section 1983 does not encompass a cause of action sounding in negligence). CONCLUSION The Court finds that the claims against Bishop, Magee, Barton WHEREFORE, based upon the foregoing analysis, it is and McMahan should be dismissed. hereby ORDERED, that plaintiff's motion to extend the time to file C. Motion to Dismiss by Herman, Stewart and Stanford. an opposing reply (dkt.44) is denied as moot; and it is further Plaintiff's claim against Stewart is that she failed to follow up and see whether plaintiff had arrived in South Carolina. ORDERED, that defendants Bishop, Magee and McMahan's Herman, he likewise asserts, failed to do his job because he motion to stay discovery until their motion to dismiss is did not investigate plaintiff's violation reports. Plaintiff has decided (dkt.41) is granted; and it is further not alleged how these actions run afoul of the Constitution; and again, these claims seem to be grounded in negligence, RECOMMENDED, that defendants Peters and Williams' which is not actionable under § 1983. Hayes, 84 F.3d at 620. motion to dismiss (dkt.13) be granted; and it is further Plaintiff's claim against Stanford must fail because his and McMahan's motion to dismiss (dkt.20) be granted; and it TO THIS REPORT WITHIN TEN (10) DAYS WILL is further PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993) (citing Small v. Secretary of RECOMMENDED, that defendants Herman, Stewart and Health and Human Services, 892 F.2d 15 (2d Cir.1989)); 28 Stanford's motion to dismiss (dkt.34) be granted. U.S.C. § 636(b)(1); FED.R.CIV.P. 6(a), 6(e) and 72. Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), All Citations the parties have ten (10) days within which to file written objections to the foregoing report. Such objections shall be Not Reported in F.Supp., 1997 WL 599355 Footnotes 1 I note, however, that the report-recommendation would survive even de novo review. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2025 WL 618557 then redesignated to the Honorable Henry J. Ricardo, who Only the Westlaw citation is currently available. issued a report (the “R&R”) recommending that the Court United States District Court, S.D. New York. grant Defendants’ motion and dismiss Cruz's complaint in full. R&R at 1, ECF No. 57. Before the Court are Cruz's timely Marisol CRUZ, Plaintiff, objections to the R&R. Objs, ECF No. 59; see also ECF No. v. 58. For the reasons stated below, the Court OVERRULES NEW YORK CITY TRANSIT AUTHORITY Cruz's objections and ADOPTS the R&R in full. - MTA, Collective Bargaining Manager Martense Avitus, Afiya Garcia-Austin, Tanya Forrester, Sandrea Flowers, Deborah Felice, BACKGROUND1 Sade Kronagay, and R Wallace, Defendants. Cruz alleges that she suffered retaliation and discrimination 24 Civ. 89 (AT) (HJR) on the basis of religion and disability when MTA placed her on an unpaid leave of absence in early 2022 for refusing Signed February 25, 2025 to comply with masking and test-or-vaccine requirements and denied her request for an accommodation (the “COVID Filed February 26, 2025 Accommodation Allegations”); when Cruz was subjected to an allegedly hostile work environment upon her return Attorneys and Law Firms to work in July 2022 (the “Post-Return Harassment Allegations”); and when she was fired in 2023 (the “2023 Marisol Cruz, New York, NY, Pro Se. Termination Allegations”). R&R at 2–4; Compl. at 10–16.2 Renee Lucille Cyr, Steve S. Efron, Steve S. Efron, Attorney at Law, New York, NY, for Defendants. The R&R recommends that the Court dismiss with prejudice Cruz's NYSHRL claims arising out of the COVID Accommodation and Post-Return Harassment Allegations ORDER ADOPTING REPORT for lack of subject matter jurisdiction because Cruz AND RECOMMENDATION unsuccessfully pursued these claims before the New York State Division of Human Rights (“SDHR”). R&R at 14; ANALISA TORRES, District Judge: see Desardouin v. City of Rochester, 708 F.3d 102, 106 (2d Cir. 2013) (explaining that New York Executive Law *1 Plaintiff pro se, Marisol Cruz, a former New York City § 297(9) precludes courts from exercising jurisdiction over Transit Authority (“MTA”) station agent, brings this action discrimination claims first brought before a state or local against Defendants, MTA, Martense Avitus, Afiya Garcia- human rights commission except in certain circumstances not Austin, Tanya Forrester, Sandrea Flowers, Deborah Felice, applicable here). Sade Kronagay, and R. Wallace, alleging that Defendants violated Title VII of the Civil Rights Act of 1964 (“Title VII”), Applying collateral estoppel and res judicata principles, the 42 U.S.C. § 2000e et seq.; the Americans with Disabilities R&R also recommends that the Court dismiss with prejudice Act (“ADA”), 42 U.S.C. § 12101 et seq.; the New York State Cruz's ADA, Title VII, and NYCHRL claims arising out of Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 290 et the COVID Accommodation and Post-Return Harassment seq.; the New York City Human Rights Law (“NYCHRL”), Allegations that were litigated in connection with Cruz's N.Y. Admin. Code § 8-101 et seq.; and New York's criminal SDHR complaint because the claims are all based on the same prohibition on “aggravated harassment,” N.Y. Penal Law § “gravamen or are part of the same factual grouping” as the 240.30, by discriminating against her on the basis of religion NYSHRL claims that the SDHR rejected. Kirkland v. City of and disability. See generally Compl., ECF No. 1. Peekskill, 828 F.2d 104, 110 (2d Cir. 1987) (citation omitted); R&R at 14–17. After Defendants moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(1) and (b)(6), the Court *2 To the extent Cruz's ADA and Title VII claims are prejudice for failure to exhaust administrative remedies. R&R *2 (S.D.N.Y. Aug. 19, 2014) (citation omitted). at 17–20. The R&R explains that the ADA and Title VII both require administrative exhaustion, and Cruz has not When a party makes specific objections, the Court reviews alleged or otherwise shown that she properly exhausted her de novo those portions of the R&R to which objection is claims related to allegations that post-date the filing of her made. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3). SDHR complaint. Id. at 17–18 (citing Soules v. Connecticut, However, when a party “makes only conclusory or general 882 F.3d 52, 57 (2d Cir. 2018)). Judge Ricardo considered objections, or simply reiterates the[ir] original arguments,” whether the post-SDHR allegations could relate back to the the Court reviews the R&R “strictly for clear error.” Harris earlier allegations for purposes of administrative exhaustion v. TD Ameritrade Inc., 338 F. Supp. 3d 170, 174 (S.D.N.Y. but found that “Cruz has not plausibly alleged that the clashes 2018) (citation omitted), aff'd, 837 F. App'x 841 (2d Cir. with her supervisors in the second half of 2022 and in 2023 2021) (summary order); see also Bailey v. U.S. Citizenship that were not presented to the SDHR were in any way related & Immigr. Servs., No. 13 Civ. 1064, 2014 WL 2855041, to her earlier request for an accommodation.” Id. at 18; see at *1 (S.D.N.Y. June 20, 2014) (“[O]bjections that are not id. at 18–20. clearly aimed at particular findings ... do not trigger de novo review.”); Edwards v. Fischer, 414 F. Supp. 2d 342, Additionally, because Cruz pursued her retaliation claims 346–47 (S.D.N.Y. 2006) (“[W]here objections are merely related to the 2023 Termination Allegations in binding perfunctory responses, argued in an attempt to engage the arbitration, and the arbitrator “d[id] not find that there district court in a rehashing of the same arguments set forth in is any basis to conclude that [Defendants’] actions were the original [motion], reviewing courts should review a report retaliatory,” the R&R recommends that the Court dismiss and recommendation for clear error.” (citation omitted)). An Cruz's retaliation claims related to the 2023 Termination R&R is clearly erroneous if the reviewing court is “left with Allegations as barred by collateral estoppel. Id. at 20–22; the definite and firm conviction that a mistake has been see Postlewaite v. McGraw-Hill, 333 F.3d 42, 48 (2d Cir. committed.” Easley v. Cromartie, 532 U.S. 234, 242 (2001) 2003) (explaining that collateral estoppel may apply to issues (citation omitted); see also Travel Sentry, Inc. v. Tropp, 669 F. and claims resolved in arbitration when there has been a Supp. 2d 279, 283 (E.D.N.Y. 2009). final determination on the merits). Finally, because the R&R recommends dismissing Cruz's federal claims for the various reasons stated above, it also recommends that the Court II. Cruz's Objections decline to exercise supplemental jurisdiction over Cruz's *3 Cruz objects to the R&R's conclusions with respect to remaining NYSHRL and NYCHRL claims arising out of “(1) Jurisdiction, (2) Individual liability, and (3) Retaliation.” those portions of the Post-Return Harassment Allegations Objs. at 1–2. The Court addresses each category of objection not litigated before the SDHR. R&R at 22–23; see Barr v. in turn. Macys.com, LLC, No. 22 Civ. 7867, 2023 WL 6393840, at *6 (S.D.N.Y. Sept. 29, 2023) (“Typically courts decline to First, Cruz raises a general objection to the R&R's exercise supplemental jurisdiction when the federal claims are “findings in matters of jurisdiction.” Id. at 2. Cruz states dismissed.” (citing United Mine Workers of Am. v. Gibbs, 383 that she filed her complaint with the Equal Employment U.S. 715, 726 (1966))).3 Opportunity Commission (“EEOC”) within 180 days of “the discrimination act” and “was forced to file” her complaint before the SDHR only “after the EEOC impeded the progress of [her] discrimination claim.” Id. Reading Cruz's objections DISCUSSION liberally, it appears that Cruz challenges an argument Defendants raised in their motion to dismiss—specifically, I. Legal Standard that Cruz's Title VII and ADA claims are untimely because A district court “may accept, reject, or modify, in whole or in the SDHR complaint was filed more than 300 days after Cruz part, the findings or recommendations made by the magistrate was placed on unpaid leave and MTA denied her request judge.” 28 U.S.C. § 636(b)(1)(C). The Court may adopt those for an accommodation. See R&R at 12. In the R&R, Judge portions of the R&R to which no objection is made “as long Ricardo wrote that “the Court need not reach the issue of as no clear error is apparent from the face of the record.” timeliness because Cruz's federal claims based on the COVID jurisdiction, res judicata, and collateral estoppel. Id. at 13. Cruz's claims concerning the 2023 Termination Allegations Because Cruz raises only a general and conclusory challenge are barred by collateral estoppel following the arbitrator's to the R&R's “findings in matters of jurisdiction,” Objs. at 2, adverse determination, and that Cruz's federal claims not the Court must review the R&R's jurisdictional conclusions litigated before the SDHR are otherwise barred for failure to for clear error, see Harris, 338 F. Supp. 3d at 174; Edwards, exhaust administrative remedies, are not clearly erroneous. 414 F. Supp. 2d at 346–47. Having closely reviewed Judge See R&R at 17, 20–22. Accordingly, this objection, too, is Ricardo's thorough and well-reasoned R&R, the Court finds overruled. that the R&R's conclusions with respect to jurisdiction—that the Court lacks subject matter jurisdiction over Cruz's claims The Court has reviewed the remainder of Judge Ricardo's litigated before the SDHR, and that the Court should decline thorough and well-reasoned R&R for clear error and finds to exercise supplemental jurisdiction over Cruz's surviving none. state law claims—“are not clearly erroneous or contrary to law.” Eisenberg v. New Eng. Motor Freight, Inc., 564 F. Supp. 2d 224, 226 (S.D.N.Y. 2008). CONCLUSION Second, Cruz objects to the R&R's “recommendation of no For the foregoing reasons, the Court overrules Cruz's individual liability.” Objs. at 2. The R&R explains that, objections, adopts the R&R in full, and orders as follows: “unlike [the] NYSHRL and NYCHRL, the ADA and Title VII do not provide for individual liability” when defendants 1. Cruz's NYSHRL claims arising out of the COVID are sued in their individual or personal capacities. R&R at Accommodation Allegations and those portions of the 23 (collecting cases). Accordingly, the R&R recommends Post-Return Harassment Allegations that were litigated that, “[e]ven if the Court determines that Cruz's ADA and before the SDHR are DISMISSED, with prejudice, for Title VII [claims] are not otherwise barred, they should be lack of subject matter jurisdiction; dismissed with regard to the individual Defendants.” Id. The 2. Cruz's ADA, Title VII, and NYCHRL claims related R&R's conclusion that the ADA and Title VII do not provide to the COVID Accommodation Allegations and those for individual liability is correct. See Keitt v. City of New portions of the Post-Return Harassment Allegations that York, 882 F. Supp. 2d 412, 426 (S.D.N.Y. 2011) (“Individuals [sued] in their personal capacities are not proper defendants were litigated before the SDHR are DISMISSED, with on claims brought under the ADA.” (citing Harris v. Mills, prejudice, as barred by res judicata and collateral estoppel; 572 F.3d 66, 72 (2d Cir. 2009))); Petrisch v. JP Morgan Chase, 789 F. Supp. 2d 437, 454 (S.D.N.Y. 2011) (“It is well- 3. Cruz's ADA and Title VII claims based on those settled that employees may not be sued in their individual portions of the Post-Return Harassment Allegations capacity under Title VII.” (citing Sassaman v. Gamache, 566 that post-date the SDHR complaint are DISMISSED, F.3d 307, 315–16 (2d Cir. 2009))). Even if the ADA and Title without prejudice, for failure to exhaust administrative VII did provide for individual liability, the R&R's conclusion remedies; that Cruz's ADA and Title VII claims are “otherwise barred” under res judicata and collateral estoppel and for failure to 4. Cruz's claims arising out of the 2023 Termination exhaust administrative remedies, a conclusion to which Cruz Allegations are DISMISSED, with prejudice, as barred has not objected, is not clearly erroneous. R&R at 23. by collateral estoppel; *4 Third, Cruz objects that she “engaged in protected 5. Cruz's NYSHRL and NYCHRL claims based on those activity and [that] Defendants aided and abetted [MTA] portions of the Post-Return Harassment Allegations in increase[d] scrutiny, repeated harassment, aggravated that post-date the SDHR complaint are DISMISSED, harassment, and discharge[,] which in these circumstances without prejudice, for lack of supplemental subject is considered retaliation.” Objs. at 3. Because this objection matter jurisdiction; and seeks to relitigate issues already raised before Judge Ricardo, 6. Cruz's claim for “aggravated harassment” under New the Court must review the relevant portions of the R&R for York Penal Law § 240.30 is DISMISSED, with clear error. See Edwards, 414 F. Supp. 2d at 346–47; Bailey, Any motion for leave to amend the complaint must be filed by SO ORDERED. March 18, 2025, and must be accompanied by (1) a proposed amended complaint; (2) a redline or a description of the All Citations changes from the original complaint to the proposed amended complaint; and (3) a memorandum of law explaining how the Not Reported in Fed. Supp., 2025 WL 618557 amendments address the deficiencies described in the R&R and this Order. Footnotes 1 The Court presumes familiarity with the facts and procedural history of this action as detailed in the R&R and therefore summarizes only the key facts here. See R&R at 1–8. 2 Citations to the complaint at ECF No. 1 are to the ECF page number. 3 The R&R also recommends dismissing with prejudice Cruz's claim for “aggravated harassment” under New York Penal Law § 240.30 because the statute does not confer a private right of action. R&R at 24; McFadden v. Ortiz, No. 12 Civ. 1244, 2013 WL 1789593, at *3 (N.D.N.Y. Apr. 26, 2013) (“[T]here is no private right of action to enforce either state or federal criminal statutes. Therefore, even assuming, arguendo, that Defendants violated some criminal statutes, Plaintiff may not bring a claim based on those statutes to enforce New York [c]riminal [l]aw.” (citation omitted)). End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2025 WL 209598 A. Cruz's COVID Accommodation Request In response to the COVID-19 pandemic, the Governor Only the Westlaw citation is currently available. of New York issued a state-wide mask mandate in April United States District Court, S.D. New York. of 2020. Executive Order 202.17: Continuing Temporary Marisol CRUZ, Plaintiff, Suspension and Modification of Laws Relating to the Disaster v. Emergency, 9 N.Y.C.R.R. 8.202.27.1 In response, the MTA NEW YORK CITY TRANSIT, et al., Defendants. required all employees and customers to wear masks when in the subway system. New York State Division of Human 24-CV-89 (AT) (HJR) Rights (“SDHR”) Complaint, filed on December 23, 2022 (the “SDHR Compl.”), Dkt. No. 31-1.2 This requirement Signed January 16, 2025 applied to Station Agents such as Cruz. Compl. at 11. In addition to the mask requirement, Station Agents were also Attorneys and Law Firms required either to receive a COVID-19 vaccine or to submit Marisol Cruz, New York, NY, Pro Se. to weekly COVID testing. SDHR Compl. Exhibits at 4, Dkt. No. 31-2. Renee Lucille Cyr, Steve S. Efron, Steve S. Efron, Attorney at Law, New York, NY, for Defendants. Cruz requested a religious exemption from the masking and test-or-vaccine requirements on December 24, 2021. Compl. at 11; Defendants' Memorandum of Law in Support of Motion REPORT AND RECOMMENDATION to Dismiss the Complaint in its Entirety (“Def. Mem.”), Dkt. No. 34, at 4–5. While she did not request a disability HENRY J. RICARDO, United States Magistrate Judge. exemption per se, her religious accommodation application stated that Cruz “ha[d] a disability” and was “protected under *1 To the Honorable Analisa Torres, United States the American with Disabilities Act.” Id. District Judge: Plaintiff Marisol Cruz, proceeding pro se, brings this *2 During the week following her request, but before the action alleging that the New York City Transit Authority MTA ruled on it, Cruz reported to work without a mask. Id. (“MTA”) and its employees violated federal, state, and local As a result, she was referred to the MTA Labor Relations employment laws, inter alia, by discriminating against her Department. Id.; Compl. at 11. After continuing to refuse to based on her religious beliefs and disability status. Defendants wear a mask at work on December 30, Cruz was placed on an have moved to dismiss the case under Rules 12(b)(1) and unpaid leave of absence. Id.; Def. Mem. at 5. Cruz filed for 12(b)(6) of the Federal Rules of Civil Procedure, arguing unemployment insurance on January 12, which she ultimately that her claims are time-barred, that she failed to exhaust received. Compl. at 12–13. administrative remedies prior to filing in federal court, that several of her claims are barred by the doctrine of issue On January 19, 2022, the MTA denied Cruz's request for preclusion, that her federal claims against the individual accommodation, determining that it would pose an undue defendants are not permitted by the relevant statutes, that she hardship due to safety concerns. SDHR Compl. Exhibits at 4. lacks standing to enforce criminal statutes, and that she did Cruz alleges that she was not made aware of this denial until not adequately plead her causes of action. For the reasons set April 21, 2022. Compl. at 12. For ease of reference, Cruz's forth below, Defendants' motion should be GRANTED. allegations concerning her request for an accommodation with respect to COVID-related rules and her unpaid leave of absence in early 2022 are referred to as the “COVID I. FACTUAL BACKGROUND Accommodation Allegations.” Cruz began working as a Station Agent for the MTA in 2006. Complaint (“Compl.”), Dkt. No. 1, at 10. In this role, she worked in a booth providing customer service to subway B. Cruz's Return to Work and Alleged Harassment riders. Id. In late 2021, Cruz worked at the Wall Street station On July 11, 2022, Cruz returned to work at the MTA, but on the No. 2 line. Id. at 10-11. at a different station, the 8th Street station, and with a that her new supervisor, Sade Kornagay, “made references” also referenced disputes with her supervisor at the 8th Street to her previous work location, she does not allege that station since returning to work in July 2022, claiming that Kornagay mentioned or was aware of Cruz's 2021 request for Kornagay “harassed” her and alleging a November 15, 2022 accommodation. Id. incident in which the MTA “interfered” with Cruz's attempt to file a police report against Kornagay complaining of Cruz experienced friction with Kornagay soon after returning harassment. Id. at 19. Thus, the SDHR complaint contained at to work. She alleges that on August 16, 2022, Kornagay least some of the Post-Return Harassment Allegations based “created a hostile work environment.” Compl. at 13–14. on events from June 8, 2022 through at least November 15, The Complaint alleges a number of other harassing actions 2022. committed by Kornagay and other supervisors in late 2022 and the first half of 2023. Id. For ease of reference, The SDHR Complaint did not explain how these Post-Return Cruz's allegations concerning the period from when she Harassment Allegations related to Cruz's religious beliefs or returned to work in July 2022 up to the June 9, 2023, disability, beyond the single assertion that Kornagay asked incident described below are referred to as the “Post-Return if Cruz had previously worked at the Wall Street station. Harassment Allegations.” Id. Although the SDHR Complaint was not initially filed with the federal Equal Opportunity Employment Opportunity Commission (“EEOC”), it was considered simultaneously C. Cruz's 2023 Termination filed with the EEOC. Dkt. No. 34-3. On June 9, 2023, defendant Deborah Felice was called to the 8th Street station where Cruz was working after a dispute On September 19, 2023, the SDHR issued its ruling. between Cruz and a cleaning team. Compl. at 15; Def. Mem. Determination and Order After Investigation (“SDHR at 14. Following this dispute, Cruz did not return to work at Determination”), Dkt. No. 34-4. The SDHR found that there her assigned workplace. Compl. at 15; Def. Mem. at 14. On was no probable cause to believe that the MTA had engaged June 28, 2023, Cruz “returned to work” at the MTA's Labor in the unlawful discriminatory practices alleged. Id. at 1. It Relations office. Compl. at 16. On July 5, 2023, Cruz was also found that the MTA's decision to place Cruz on unpaid suspended without pay and the MTA began the disciplinary leave due to her refusal to wear a mask or submit to regular process that ultimately resulted in her termination in August COVID testing was a reasonable accommodation. Id. at 3. 2023. Id. The hostile acts alleged by Cruz during this period Thus, the SDHR adjudicated claims based on Cruz's COVID primarily involved her workplace attire and physical entrance Accommodation Allegations. into her workspace; none involved or referenced the MTA's mask policy or its test-or-vaccine policy. Id. For ease of The SDHR Determination also addressed certain of Cruz's reference, Cruz's allegations concerning the June 9, 2023 Post-Return Harassment Allegations, finding that Cruz incident and events that followed it, including her termination demonstrated neither that the behavior she complained of from the MTA, are referred to as the “2023 Termination after her return to work constituted harassment nor that it was Allegations.” related to her religious beliefs or disability in any way. Id. at 3–4. More specifically, the SDHR Determination addressed incidents involving Kornagay that occurred on August 16 D. The 2022 SDHR Complaint and November 15, 2022, but did not address any Post- On December 23, 2022, Cruz filed a discrimination complaint Return Harassment Allegations occurring in 2023. There is with the SDHR. SDHR Compl. at 12. In the SDHR no allegation or other showing that Cruz appealed from the Complaint, Cruz alleged that she had been discriminated SDHR Determination in New York state court. against on the basis of her religious beliefs and her disability, identified as asthma. Id. The SDHR complaint cited the On October 26, 2023, the EEOC adopted the SDHR's specific acts of the denial of a religious accommodation and findings. Compl. at 20. being placed on unpaid leave as the basis for her claim. Id. at 15. Thus, the SDHR Complaint included Cruz's COVID Accommodation Allegations. E. The 2023 Arbitration After the MTA suspended Cruz without pay in July 2023 in independent arbitrator, pursuant to the collective bargaining referred to the undersigned. agreement between the Transit Workers' Union and the MTA. In the Matter of the Arbitration of New York City Transit Authority and Transport Workers Union Local 100 III. LEGAL STANDARDS re: Marisol Cruz; Pass #XXXXXX, DANS: 23-2757-0090 A. Rule 12(b)(1) Motion to Dismiss and 23-2757-0091, by Arbitrator Philip L. Maier, dated “[A] federal court generally may not rule on the merits of a October 23, 2023 (“Arb. Opinion”), Dkt. No. 34-5.4 At the case without first determining that it has jurisdiction over the arbitration, Cruz made similar claims of harassment by her category of claim in suit ([i.e.,] subject-matter jurisdiction).” supervisors in 2022 and 2023 that she makes in the present Sinochem Int'l Co. v. Malay. Int'l Shipping Corp., 549 U.S. action (i.e., the Post-Return Harassment Allegations), and 422, 430-31, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007). “A case contended that her termination was retaliation for attempts to is properly dismissed for lack of subject matter jurisdiction obtain redress for this harassment. Id. at 8–9; Pl. Opp. at 77– under Rule 12(b)(1) when the district court lacks the statutory 78. The independent arbitrator found that the MTA had just or constitutional power to adjudicate it.” Makarova v. United cause to terminate Cruz. Arb. Opinion at 9–10. States, 201 F.3d 110, 113 (2d Cir. 2000). Where subject matter jurisdiction is challenged, a plaintiff “bear[s] the burden of ‘showing by a preponderance of the evidence that subject II. PROCEDURAL HISTORY matter jurisdiction exists.’ ” APWU v. Potter, 343 F.3d 619, *4 Cruz filed the Complaint on January 2, 2024. Dkt. No. 623 (2d Cir. 2003) (quoting Lunney v. United States, 319 F.3d 1. In addition to the MTA itself, she named seven individual 550, 554 (2d Cir. 2003)). MTA employees as defendants: Martense Avitus, Afiya Garcia-Austin, Tanya Forrester, Sandrea Flowers, Deborah In considering a Rule 12(b)(1) motion, a court “must accept Felice, Sade Kornagay, and R. Wallace. Id. at 2–7. She as true all material factual allegations in the complaint.” J.S. alleges that Defendants violated Title VII of the Civil Rights ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir. Act of 1974 (“Title VII”), 42 U.S.C. §§ 2000e–2000e-17, 2004). The court “may consider affidavits and other materials the Americans with Disabilities Act (“ADA”), 42 U.S.C. beyond the pleadings to resolve the jurisdictional issue, but ... §§ 12101–12213, New York State Human Rights Law may not rely on conclusory or hearsay statements contained in (“NYSHRL”), N.Y. Exec. Law §§ 290–297, and New York the affidavits.” Id. In resolving a Rule 12(b)(1) motion, a court City Human Rights Law (“NYCHRL”), N.Y. Admin. Code §§ may also “consider ‘matters of which judicial notice may be 8-101–131. Compl. at 3–8. She also alleges that Defendants taken.’ ” Greenblatt v. Gluck, No. 03-CV-597 RWS, 2003 WL committed “aggravated harassment” in violation of New York 1344953, at *1 n.1 (S.D.N.Y. Mar. 19, 2003) (quoting Hertz Penal Law § 240.30. Id. at 8. Corp. v. City of New York, 1 F.3d 121, 125 (2d Cir. 1993)). For relief, Cruz seeks a return to employment, compensation for lost wages, a restoration of her pension, compensatory B. Rule 12(b)(6) Motion to Dismiss damages for pain and suffering and damage to her reputation, Rule 12(b)(6) allows a party to move to dismiss a complaint and punitive damages. Id. at 18. for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In considering a Rule 12(b)(6) On May 6, 2024, Defendants moved to dismiss the complaint. motion, a court accepts all factual allegations in the complaint Dkt. No. 30. In support of this motion, they filed a as true and draws all reasonable inferences in the plaintiff's memorandum of law, as well as the complete record of the favor. See, e.g., Mayor & City Council of Baltimore v. SDHR proceeding and the arbitration opinion and award. Dkt. Citigroup, Inc., 709 F.3d 129, 135 (2d Cir. 2013). To survive No 34. Cruz filed a Declaration of Marisol Cruz in Opposition dismissal, a plaintiff must allege enough facts “to state a to Motion to Dismiss (“Pl. Opp.”) on July 15, 2024. Dkt. claim to relief that is plausible on its face.” Bell Atl. Corp. v. No. 43. On August 1, 2024, Defendants filed their Reply Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 Memorandum of Law (“Def. Reply”). Dkt. No. 46. On August (2007). Facial plausibility exists when the plaintiff “pleads 6, 2024, this case was referred to Magistrate Judge Katharine factual content that allows the court to draw the reasonable H. Parker for a report and recommendation on the motion inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 556, 127 S.Ct. 1955). “Importantly, the ‘plausibility’ standard estoppel. Id. at 14–15, 101 S.Ct. 173. Third, Defendants applies only to a complaint's factual allegations. [The Court] argue that Cruz is collaterally estopped from bringing claims give[s] no effect at all to ‘legal conclusions couched as factual based on her 2023 Termination Allegations because they were allegations.’ ” Citigroup, Inc., 709 F.3d at 135 (quoting Port decided in a binding arbitration. Id. at 18, 101 S.Ct. 173. Dock & Stone Corp. v. Oldcastle Northeast., Inc., 507 F.3d 117, 121 (2d Cir. 2007)). Defendants also argue that Cruz has failed to adequately plead her causes of action on the merits. Id. at 18–23, 101 S.Ct. 173. Finally, Defendants contend that because there is no C. Standards for Pro Se Litigants individual liability under the ADA or Title VII, those claims *5 While pro se complaints are read liberally “to raise against the individual defendants should be dismissed, and the strongest arguments they suggest,” Triestman v. Fed. because New York's Penal Law does not provide a private Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (citation right of action, the aggravated harassment cause of action omitted), they must still state a plausible claim for relief. should be dismissed. Id. at 24–25, 101 S.Ct. 173. The Court Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013). Thus, a will address these arguments in turn. district court should dismiss a pro se plaintiff's complaint if it “fail[s] to meet minimum pleading requirements.” Kinsey v. Bloomberg, No. 12-CV-8936 (PAE) (JCF), 2014 WL 630670, A. Timeliness and Exhaustion of Federal Claims at *3 (S.D.N.Y. Feb. 18, 2014). Based on The COVID Accommodation Allegations “[A] plaintiff seeking to bring a claim pursuant to the Submissions made by pro se plaintiffs are held “to less Americans with Disabilities Act (“ADA”) [or] Title VII ... stringent standards than formal pleadings drafted by lawyers.” must exhaust administrative remedies through the EEOC or Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d [the state administrative agency].” Soules v. Connecticut, 163 (1980) (internal quotations omitted); see also Harris v. Dep't of Emergency Servs. & Pub. Prot., 882 F.3d 52, 57 Mills, 572 F.3d 66, 72 (2d Cir. 2009) (courts are “obligated to (2d Cir. 2018). To exhaust their administrative remedies, construe a pro se complaint liberally”). As a result, the Court a plaintiff “must file a charge of discrimination with the may consider allegations that appear in a pro se plaintiff's EEOC ‘within three hundred days after the alleged unlawful motion papers or other submissions to the Court as well as in employment practice occurred,’ 42 U.S.C. § 2000e-5(e)(1), his pleadings. See, e.g., Freud v. N.Y.C. Dep't of Educ., No. and must then file an action in federal court within 90 21-CV-2281 (MKV), 2022 WL 889213, at *4 (S.D.N.Y. Mar. days of receiving a right-to-sue letter from the agency, id. § 25, 2022) (courts “may also consider factual statements made 2000e-5(f)(1). Duplan v. City of New York, 888 F.3d 612, 621– in the pro se Plaintiff's opposition to the motion to dismiss”) 22 (2d Cir. 2018). (citing Walker, 717 F.3d at 122 n.1). Nevertheless, pro se plaintiffs are not excused from the normal rules of pleading; *6 Cruz was placed on leave without pay on December 29, “dismissal ... is proper if the complaint lacks an allegation 2021, effective December 30, due to her failure to comply regarding an element necessary to obtain relief.” Geldzahler with the MTA's masking requirement. Compl. at 11. The MTA v. N.Y. Med. Coll., 663 F. Supp. 2d 379, 387 (S.D.N.Y. 2009) formally denied her request for an accommodation on January (cleaned up). 19, 2022. Dkt. No. 34-2 at 4. However, Cruz claims that this denial was not transmitted to her until April 26, 2022. Compl. at 12. Defendants argue that because Cruz filed her SDHR IV. ANALYSIS complaint more than 300 days after either of those dates, her Defendants argue that all of Cruz's claims should be Title VII and ADA claims should be dismissed as untimely dismissed. First, they contend that the state law claims under Rule 12(b)(6). Def. Mem. at 14–15. litigated in the SDHR (which include claims based on the COVID Accommodation Allegations and at least some of In response, Cruz writes that she first mailed her complaint the Post-Return Harassment Allegations) should be dismissed to the EEOC in June of 2022. She claims that later that under Rule 12(b)(1) because Cruz's election to pursue these month she attempted to file with the EEOC in person, but was state law claims in the SDHR deprives this Court of subject unsuccessful because the EEOC offices were closed to walk- matter jurisdiction. Def. Mem. at 15–16. Second, they ins due to the pandemic. Pl. Opp. at 4. Cruz has provided what July through December of 2022. Id. at 87–92. She does not Cruz on these claims. Defendants contend that Cruz failed to offer an explanation for her delay in filing with the SDHR, appeal from the SDHR Determination in state court and Cruz which allows for dual-filing with the EEOC. never rebuts this assertion. Def. Mem. at 22. Ultimately, the Court need not reach the issue of timeliness Accordingly, this Court lacks subject matter jurisdiction over because Cruz's federal claims based on the COVID the state law claims that Cruz pursued in the SDHR because Accommodation Allegations made in the SDHR should be she elected to bring those claims in a state administrative dismissed on other grounds. agency and did not appeal from its decision. This means that state law claims based on the COVID Accommodation Allegations and those Post-Return Harassment Allegations B. The Court Lacks Subject Matter Jurisdiction Over made in the SDHR should be dismissed under Rule 12(b)(1). Cruz's State Law Claims Based Upon Allegations See Desardouin, 708 F.3d at 106. Made in the SDHR Complaint An individual alleging violations of the NYSHRL may either file suit in court or bring the claims before a local C. Federal Law and Local Law Claims Based on the commission on human rights. N.Y. Exec. Law § 297(9). After Facts Alleged in the SDHR Complaint Should Be an unfavorable decision from the state administrative agency, Dismissed Under the Doctrine of Collateral Estoppel a plaintiff can only appeal from that decision in state court. *7 “Even though a plaintiff's factual allegations must be Id. at 127 (“Furthermore, once a plaintiff brings a case before accepted as true and all reasonable inferences drawn in the the NYSDHR, he or she may appeal only to the Supreme plaintiff's favor on a motion to dismiss [pursuant to Rule 12(b) Court of State of New York.”) (citing N.Y. Exec. Law § 298). (6)], collateral estoppel will nonetheless bar a plaintiff's claim The Second Circuit has ruled that if a plaintiff files a claim when the plaintiff's ‘factual allegations have been decided with the New York State Division of Human Rights, federal otherwise in previous litigation.’ ” Poindexter v. Cash Money courts lack subject matter jurisdiction over those claims. Records, No. 13-CV-1155 (RWS), 2014 WL 818955, *3 Desardouin v. City of Rochester, 708 F.3d 102, 106 (2d Cir. (S.D.N.Y. Mar. 3, 2014) (quoting Jacobs v. Law Offices 2013) (upholding district court's dismissal of case for lack of of Leonard N. Flamm, No. 4-CV-7607, 2005 WL 1844642 subject matter jurisdiction where plaintiff brought identical (DC)), at *3 (S.D.N.Y. July 29, 2005). While courts “apply claims in SDHR). federal law in determining the preclusive effect of a federal judgment and New York law in determining the preclusive In her SDHR complaint, which asserted violations of the effect of a New York state court judgment, ... there is no NYSHRL, Cruz alleged that the MTA and its employees, discernible difference between federal and New York law Flowers and Forrester, Defendants in this lawsuit as well, concerning ... collateral estoppel.” Marvel Characters, Inc. v. discriminated against her based upon her religion and Simon, 310 F.3d 280, 286 (2d Cir. 2002). “Under New York disability. SDHR Compl. at 12–14. Thus, Cruz pursued law, a claim will be barred by a determination in an earlier claims based on her COVID Accommodation Allegations in action if both causes of action are grounded on the same the SDHR. Additionally, the SDHR complaint asserted state gravamen or are part of the same ‘factual grouping,’ even if law claims based upon certain incidents that are part of the the later claim is brought under a different legal theory of Post-Return Harassment Allegations. Id. at 18–19, 101 S.Ct. recovery.” Kirkland v. City of Peekskill, 828 F.2d 104, 110 (2d 173. Cir. 1987). Cruz's Complaint filed here relies on these same COVID Under New York law, “ ‘res judicata and collateral estoppel Accommodation Allegations made in the SDHR. Compare are applicable to give conclusive effect to the quasi-judicial Compl. at 11–13 with SDHR Complaint at 18–19. In both determinations of administrative agencies ... when rendered complaints, Cruz alleges that she was discriminated against pursuant to the adjudicatory authority of an agency to decide because the MTA did not provide accommodations for her cases brought before its tribunals employing procedures religious beliefs and disability, and by placing her on unpaid substantially similar to those used in a court of law....’ ” leave. Id. Cruz's Complaint also makes the same Post- DeCintio v. Westchester County Medical Center, 821 F.2d Return Harassment Allegations that were made in the SDHR, 111, 117 (2d Cir. 1987) (quoting Ryan v. New York Telephone 50 (1987). collateral estoppel (Cruz's federal and local law claims). This leaves the second category – claims based on allegations that In her SDHR Complaint, Cruz only asserted claims under were not made in the SDHR. To the extent they fall within the NYSHRL. In the present action, she brings claims this second category and are premised on factual allegations grounded in the ADA, Title VII, and NYCHRL that that were not presented to the SDHR, Cruz's federal claims are based on the same factual allegations presented in for violation of the ADA and Title VII should be dismissed the SDHR proceeding. More specifically, both the SDHR for failure to exhaust administrative remedies. complaint and the instant Complaint assert Cruz's COVID Accommodation Allegations. See Compl. at 9 (“[Defendants] Cruz asserts claims in this action that are grounded in did not accommodate my reasonable religious accommodate allegations that were not made in her December 2022 SDHR [SIC]. Put on unpaid leave.”); SDHR Compl. at 15 (under Complaint. These include allegations of certain hostile and “Acts of Discrimination” section, checking box for “Denied harassing interactions that occurred after she returned to work me an accommodation for my religious practices” and at the 8th Street station on July 8, 2022, i.e., a portion writing next to “Other” box writing “Unpaid leave for six of the Post-Return Harassment Allegations (particularly months.”). Both complaints challenge the MTA's decision those occurring in 2023) as well as the 2023 Termination not to provide Cruz an accommodation for her religious Allegations. beliefs and disability, and its decision to place her on unpaid administrative leave when she refused to adhere to its Cruz states that she attempted to amend her SDHR Complaint masking and test or vaccine policies. Compl. at 11–12; SDHR to include these additional allegations, but the SDHR ruled Complaint at 18–19. against her before she could do so. Pl. Opp. at 5. She also filed a second dual charge/complaint with the SDHR and Additionally, Cruz asserts claims in this action that are the EEOC in January of 2024, which was after the litigation based on the same Post-Return Harassment Allegations that Complaint was filed. Id. She does not claim to have received were advanced in the SDHR Complaint. Most notably, a final determination from the SDHR or a right-to-sue letter both complaints refer to an August 16, 2022 incident in from the EEOC in relation to this second complaint. Cruz which Kornagay allegedly tried to force Cruz to violate has therefore has not exhausted her administrative remedies MTA policies and a November 15, 2022 incident in which with regard to the alleged discriminatory actions that were Defendants allegedly interfered with Cruz filing a police not mentioned in the SDHR complaint, and the federal claims complaint. See Compl. at 13-14; SDHR Complaint at 19.5 that require exhaustion–i.e., her ADA and Title VII claims– should be dismissed without prejudice. See, e.g., Soules v. Because Cruz previously litigated these same COVID Connecticut, 882 F.3d 52, 57 (2d Cir. 2018). Accommodation Allegations and Post-Return Harassment Allegations in the SDHR, the SDHR rejected her claims based In her opposition papers, Cruz claims that defendants on these allegations, and she did not appeal from this decision Kornagay and Felice acted in retaliation. Pl. Opp. at 3–4. Cruz in state court, Cruz's ADA, Title VII, and NYCHRL claims presumably makes this assertion so she can argue that these that are based on the COVID Accommodation Allegations later incidents relate back to the earlier incidents, for which and the Post-Return Harassment Allegations made in the she did utilize administrative remedies. See Williams v. N.Y. SDHR complaint should be dismissed under Rule 12(b)(6). City Hous. Auth., 458 F.3d 67, 70 (2d Cir. 2006) (Claims not raised in an EEOC [or EEO] complaint ... may be brought in federal court if they are ‘reasonably related’ to the claim filed D. Cruz Has Not Exhausted Her Administrative with the agency.”) (citing Butts v. City of N.Y. Dep't of Hous. Remedies with Regard to Federal Claims Premised on Pres. & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993)). Allegations Not Presented to the SDHR *8 As a matter of logic, Cruz's claims fall into two, mutually However, Cruz has not plausibly alleged that the clashes with exclusive categories: (1) claims based on allegations made her supervisors in the second half of 2022 and in 2023 that to the SDHR, and (2) claims based on allegations that were were not presented to the SDHR were in any way related not made to the SDHR. As explained above, the claims to her earlier request for an accommodation. At the outset, falling in the first category should be dismissed either for it is worth noting that the SDHR specifically addressed two in over lost property documents and a November 15, 2022 Ultimately, Cruz fails plausibly to allege that the disputes confrontation in the station booth. After considering these with her new supervisors at the 8th Street station were in allegations, the SDHR observed that Cruz had complained retaliation for her earlier request for accommodation. Because that her supervisors were “harassing” her even before the she has not exhausted her administrative remedies regarding pandemic, and concluded, “the investigation did not reveal the events not included in her first SDHR complaint, and these any evidence that these supervisory actions were in any way events are not related to her prior dual SDHR/EEOC filing, related to Complainant's religion, disability, or any protected these federal claims should be dismissed without prejudice. category under the law. Complainant has failed to establish any connection between her protected characteristics and any of her allegations, and has only provided speculative and E. Cruz is Collaterally Estopped from Bringing conclusory statements.” SDHR Determination at 4. Claims Based On Her 2023 Termination Allegations The doctrine of collateral estoppel precludes subsequent In her opposition, Cruz provided a copy of the letter she sent litigation if “(1) the issue in question was actually and to the Office of Equal Employment Opportunity complaining necessarily decided in a prior proceeding, and (2) the party about these and other events in late 2022 and 2023. Pl. against whom the doctrine is asserted had a full and fair Opp. at 69–73. But this summary of the actions taken by opportunity to litigate the issue in the first proceeding.” Kornagay and Felice does not plausibly allege retaliation. Moccio v NY State Off. of Ct. Admin., 95 F.3d 195, 200 (2d Cruz's primary basis for alleging retaliation is that Kornagay Cir 1996). “Under New York law as it has evolved, collateral asked Cruz in July 22 whether she had worked at the Wall estoppel may also be applied, assuming there has been a Street station. Pl. Opp. at 69. But there is no assertion final determination on the merits, to an issue resolved in that Kornagay or Felice ever mentioned Cruz's prior request arbitration.” Postlewaite v. McGraw-Hill, 333 F.3d 42, 48 (2d for accommodation, her religious beliefs, or her disability. Cir. 2003). Nor are there factual allegations that would support a reasonable inference that Cruz's supervisors knew about her The MTA's decision to terminate Cruz was adjudicated before accommodation request. Id. an independent arbitrator on October 8, 2023. Arb. Opinion at 1. The specific incident discussed – an interaction with *9 As reported by Cruz, these incidents generally involved defendant Deborah Felice on June 9, 2023, after which Cruz either Cruz's attire or perceived invasions of her personal did not report to her workplace – is described in the present space in her booth at the 8th Street Station. Id. The key Complaint as an act of retaliatory harassment. Id. at 1; Compl. incident that led to Cruz's refusal to return to her worksite at 16. At the arbitration, counsel retained by the Transit in June 2023 was instigated by a cleaning crew supervisor Workers' Union was available to represent Cruz, but she who did not even know Cruz's name. Pl. Opp. at 71; Arb. elected to represent herself. Arb. Opinion at 2. Opinion at 3–4. At most, Cruz alleges that Kornagay “made references” to her “previous work location” in July 2022, At the hearing, Cruz made the very same claim that she alleges but this vague assertion fails to demonstrate the required here: Felice's actions and the resulting disciplinary process connection between the protected activity – a request for an were in retaliation for Cruz's complaints to the state regulatory accommodation – and her disputes with her new supervisors. bodies. Arb. Opinion at 10; Pl. Opp. at 77–78 (plaintiff's Compl. at 13. It is particularly unavailing given the SDHR's closing statement at the arbitration). The arbitrator rejected unappealed determination that Kornagay's actions in August this contention, determining, “I do not find that there is any and November 2022 – after her July 2022 reference to Cruz's basis to conclude that Felice's actions were retaliatory. I credit prior work at the Wall Street station – were not retaliatory. Felice's testimony that she did not recall any prior interactions Cruz provides no plausible basis to infer that Kornagay with Cruz and there is no evidence to demonstrate that she was developed a retaliatory motive at some point after these events aware that Cruz had filed anything which would be protected that the SDHR already considered and determined were not by statute from retaliatory conduct.” Arb. Opinion at 10. retaliatory. Finally, Cruz does not claim that the other MTA employee who allegedly harassed her, defendant Deborah Because Cruz litigated claims based on her present 2023 Felice, ever even mentioned Cruz's work at the Wall Street Termination Allegations in the arbitration (i.e., that the station. June 9, 2023, incident and her subsequent termination were based on the 2023 Termination Allegations in this action. G. The ADA and Title VII Do Not Provide For These claims should therefore be dismissed under Rule 12(b) Individual Liability (6). Plaintiff has sued seven MTA employees in their individual capacities. However, unlike NYSHRL and NYCHRL, the ADA and Title VII do not provide for individual liability. F. The Court Should Decline to Exercise Supplement See Cayemittes v. City of N.Y. Dep't of Hous. Pres. & Dev., Jurisdiction Over Cruz's Remaining Claims 641 Fed. Appx. 60, 61-62 (2d Cir. 2016) (“Title VII does Under State and Local Law Based on Post-Return not provide for individual liability.” (first citing Raspardo v. Harassment Allegations That Were Not Presented in Carlone, 770 F.3d 97, 113 (2d Cir. 2014); and then citing the SDHR Spiegel v. Schulmann, 604 F.3d 72, 79 (2d Cir. 2010) (per As discussed in Part C and Part D above, all of Cruz's federal curiam))); Gomez v. N.Y.C. Police Dep't, 191 F. Supp. 3d claims should be dismissed. As discussed in Part E above, 293, 2016 WL 3212108, at *7 (S.D.N.Y. 2016) (“[T]here all claims (federal, state and local) arising from the 2023 is no individual liability under the ADA.” (citing Lane v. Termination Allegations should be dismissed. As discussed Maryhaven Ctr. of Hope, 944 F. Supp. 158, 162 (E.D.N.Y. in Part B and Part C above, all claims (federal, state and 1996))). Even if the Court determines that Cruz's ADA and local) based on allegations presented to the SDHR (i.e., Title VII are not otherwise barred, they should be dismissed claims based on the COVID Accommodation Allegations with regard to the individual Defendants. and a portion of the Post-Return Harassment Allegations) should be dismissed. The only claims remaining are the NYSHRL and NYCHRL claims that are based on those Post- H. There Is No Private Right of Action for the Alleged Return Harassment Allegations that were not presented to the Criminal Offense SDHR. However, a district court “may decline to exercise Cruz asserts a claim for “Aggravated harassment” under § supplemental jurisdiction over a claim” once it “has dismissed 240.30. While not explicitly stated, the Court infers that all claims over which it has original jurisdiction.” 28 U.S.C. Cruz means § 240.30 of the New York Penal Law, which § 1367(c). covers aggravated harassment in the second degree. N.Y. Penal Law § 240.30. There is no private right of action *10 “Courts in this District routinely decline to exercise for violation of these criminal statutes. See, e.g., Johnson v. supplemental jurisdiction over a plaintiff's NYCHRL claims Allick, 2019 WL 569106, at *5 (E.D.N.Y. Feb. 12, 2019) (“As after dismissing all federal claims.” Espinoza v. New York City a general matter ... crimes are prosecuted by the government, Dep't of Transportation, 304 F. Supp. 3d 374, 391 (S.D.N.Y. not by private parties.”). Accordingly, this claim should be 2018); see also Harris v. NYU Langone Med. Ctr., No. 12- dismissed. CV-0454(RA), 2014 WL 941821, at *1–2 (S.D.N.Y. Mar. 11, 2014) (declining to exercise jurisdiction over NYSHRL I. Defendants' Arguments on the Merits and NYCHRL claims); Algarin v. City of New York, No. 12- Because all of Cruz's claims should be dismissed on other CV-1264 (LTS), 2012 WL 4814988, at *4 (S.D.N.Y. Oct. grounds, the Court need not reach Defendants' arguments on 10, 2012) (declining to exercise jurisdiction over New York the merits of her claims. However, these arguments are briefly State Executive Law § 296 and NYCHRL claims); Mabry v. addressed below. Neighborhood Def. Serv., 769 F. Supp. 2d 381, 402 (S.D.N.Y. 2011) (declining to exercise jurisdiction over NYSHRL and Defendants argue that Cruz's religious discrimination claims NYCHRL claims). should be dismissed because her Complaint fails to provide detail concerning her religious beliefs. Def. Mem. at 21. Accordingly, the Court should decline to exercise Defendants are correct in this assessment of the pleading; supplemental jurisdiction over Cruz's remaining NYSHRL however, Cruz does provide additional details about her and NYCHRL, which are those arising from Post-Return religious beliefs in her various administrative filings. See, Harassment Allegation that were not put forward in the SDHR e.g., Pl. Opp. at 15. Accordingly, the proper remedy for Cruz's proceeding. insufficient pleading would be granting her leave to amend her Complaint, not dismissal. disability claims, contending that she has not sufficiently work that she alleged in the SDHR should be dismissed described her disability or that she requested an with prejudice based upon the doctrine of collateral accommodation from the MTA. Def. Mem. at 21–23. While estoppel; she presented these same factual allegations to her Complaint fails to make these necessary allegations, once the SDHR, the SDHR ruled against her, and she did not again there is sufficient information about her disability and appeal. her communications with the MTA concerning her disability such that the proper remedy would be an amended pleading. • Cruz's ADA and Title VII claims arising from the alleged harassment that took place once she returned to work *11 Finally, Defendants argue that Cruz's claims should be that she did not allege in the SDHR, and her subsequent dismissed because Second Circuit case law has unequivocally termination after she stopped going to her worksite, provided that “granting a reasonable accommodation to should be dismissed without prejudice because Cruz has an employee seeking to be exempt from mask, testing not exhausted her administrative remedies prior to filing or vaccination requirements would have posed an undue in federal court. hardship to the employer.” Def. Mem. at 18–20. Defendants • Cruz's ADA, Title VII, NYSHRL, and NYCHRL claims cite D'Cunha v. Northwell Health Sys., 2023 WL 7986441, arising from the harassment allegedly committed by 2023 U.S. App. LEXIS 30612 (2d Cir. Nov. 17, 2023), defendant Felice on June 9, 2023 and the termination of where the Second Circuit upheld the 12(b)(6) dismissal of her employment are barred by the doctrine of collateral a religious discrimination claim based on the denial of the estoppel and should be dismissed with prejudice because request to be exempt from a vaccine mandate as support these same factual allegations were decided in a binding for their position that Cruz's religious discrimination claim arbitration. fails to meet the 12(b)(6) bar. Def. Mem. at 18–19; see also Cagle v Weill Cornell Medicine, 680 F. Supp. 3d 428 • The Court should decline to exercise supplemental (S.D.N.Y. 2023) (granting unopposed 12(b)(6) motion in case jurisdiction over the state and local law claims that where healthcare worker who was denied accommodation should not otherwise be dismissed for the reasons from vaccine mandate brought Title VII and ADA claims). described above, i.e., Cruz's NYSHRL and NYCHRL However, D'Cunha involved only a vaccine mandate, not claims arising from the alleged harassment she a mask policy. D'Cunha, 2023 WL 7986441, 2023 U.S. experienced after returning to work that she did not App. LEXIS 30612 at *5–6. As Defendants do not cite allege in the SDHR. any case where a 12(b)(6) motion was granted based on a denial of accommodation from a masking requirement, • Cruz's ADA and Title VII claims against the individual Cruz's discrimination claims should not be dismissed on such Defendants should be dismissed with prejudice because grounds as a matter of law. there is no individual liability under those statutes. • Cruz's claim for aggravated harassment under New York V. CONCLUSION Penal Law § 240.30 should be dismissed with prejudice Cruz brings a variety claims. Ultimately, each of them should as there is no private right of action under this criminal be dismissed for one or more reasons. In summary: statute. • Cruz's New York State Human Rights Law claims The Clerk of Court is respectfully directed to mail a copy of arising from the denial of her request for a reasonable this Report and Recommendation to the plaintiff. accommodation and arising from the alleged harassment that took place once she returned to work that she alleged in the SDHR should be dismissed with prejudice because Cruz elected to bring these claims before the SDHR, PROCEDURE FOR FILING OBJECTIONS which deprives this Court of subject matter jurisdiction. Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen • Cruz's ADA, Title VII, and New York City Human (14) days (including weekends and holidays) from service Rights Law claims arising from the denial of her request of this Report and Recommendation to file any objections. for a reasonable accommodation and arising from the responses to objections, shall be filed with the Clerk of APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Court, with courtesy copies delivered to the chambers of Civ. P. 72. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, the Honorable Analisa Torres, United States Courthouse, 500 88 L.Ed.2d 435 (1985); Wagner & Wagner, LLP v. Atkinson, Pearl St., New York, New York 10007-1312. Any requests for Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 an extension of time for filing objections must be directed to F.3d 84, 92 (2d Cir. 2010). Judge Torres. All Citations Not Reported in Fed. Supp., 2025 WL 209598 *12 FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A Footnotes 1 The Court may take judicial notice of matters of public record, such as New York State executive orders. See, e.g., See Elite Union Installations, LLC v. Nat'l Fire Ins. Co., 559 F. Supp. 3d 211, 219 (S.D.N.Y. 2021); Michael Cetta, Inc. v. Admiral Indem. Co., 506 F. Supp. 3d 168, 173 (S.D.N.Y. 2020). 2 Although Cruz did not attach the complete record of her SDHR proceeding to her complaint, the Court can take judicial notice of the records of a state administrative proceeding without converting the motion to dismiss into a motion for summary judgment. See, e.g., Evans v. New York Botanical Garden, No. 02-CV-591 (RWS), 2002 WL 31002814, at *4 (S.D.N.Y. Sept. 4, 2002). 3 Although the Complaint states that Cruz returned to work on July 11, 2023, adjacent segments of the Complaint and other documents indicate this is a typographical error. 4 Cruz did not include a copy of the arbitration opinion in her Complaint. However, she referenced the arbitration in the Complaint and included a copy of her closing statement at the arbitration in her opposition to the present motion. Compl. at 16; Pl. Opp. at 77–78, Dkt. No. 43. Defendants filed the arbitration opinion with their opposition papers. Dkt. No. 34-5. Because the arbitration is referenced by plaintiff in both her complaint and her opposition, its authenticity is not in dispute, and it is a publicly available document, the Court will take judicial notice of the arbitration opinion without converting the motion to dismiss into a motion for summary judgment. See Brown v. New York City Transit Auth., No. 22-CV-02949 (ALC), 2024 WL 1347283, at *5– 6 (S.D.N.Y. Mar. 29, 2024). 5 To the extent the Complaint in this action includes Post-Return Harassment Allegations that were not made in the SDHR Complaint (e.g., allegations concerning events in 2023), federal claims based on those allegations should be dismissed for failure to exhaust administrative remedies, as explained in Section IV.D below. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2026 WL 1831673 cases, Fata continues to allege the existence of a conspiracy Only the Westlaw citation is currently available. that began in 2017 “to coverup a sexual abuse on [his] United States District Court, E.D. Pennsylvania. two kids and to frame [him]” (hereinafter referred to as the “2017 conspiracy”). (Id. at 18.) He contends that he's Abrahim FATA, Plaintiff, “been severely oppressed by Pennsylvania, and New Jersey v. societies/communities, and governments, since 2017 ... to Edwin ARCELLY, et al., Defendants. the extreme of [his] death, by either manipulating a fatal ‘accident’ or ... to push [him] to suicide.” (Id.) Fata claims CIVIL ACTION NO. 26-2185 that the conspiracy “started with a Christian religious-based organization, that has invaded the communities” where he Filed June 25, 2026 and his children reside, and he further alleges that this organization has recruited many relatives and government Attorneys and Law Firms officials to form an enterprise to “oppress [him] religiously, Abrahim Fata, Bethlehem, PA, Pro Se. psychologically, [and] systematically.”2 (Id.) *2 In his current Complaint, Fata names as Defendants several staff members of Lehigh County Jail (“LCJ”) MEMORANDUM including Edwin Arcelly (identified in the Complaint as a HENRY, J. case worker); Bob Krasley (identified as a case worker); Tracy Kester (identified as a substitute case worker); Doug *1 Plaintiff Abrahim Fata commenced this pro se civil Matte and Jim Kremers (identified as “treatment team” action against numerous Defendants, asserting that this case members); and Kyle A. Russell (identified as the Warden). primarily arises under the Racketeer Influenced and Corrupt (Id. at 2.) He also names as Defendants Lehigh County Organizations Act (“RICO”), 18 U.S.C. § 1962(c); the Civil “legal/administrative officials” Marsha Evans (identified as Rights Act of 1871, 42 U.S.C. § 1985(3); and the Trafficking “probation/parole”); District Attorney Jay Jenkins; “Jessica” Victims Protection Reauthorization Act (“TVPRA”), 18 from “SPORE”3 and Allentown Police “Detectives” John U.S.C. § 1595. (See ECF No. 2 (“Compl.”) at 1.) Fata also Lenord, Elizabeth Flores, and “Manning.” (Id. at 2-3.) Fata filed a motion for leave to proceed in forma pauperis. For the also names as Defendants four staff members from the following reasons, the Court will grant Fata leave to proceed Allentown Rescue Mission (“ARM”), identifying them by in forma pauperis and dismiss his Complaint. first name only—Jose (“Intake Manager”), Heather, Sesa, and Paul. (Id. at 3.) Finally, he names several “private/institutional staff” members as Defendants including Jess (identified as I. FACTUAL ALLEGATIONS1 the Director for the Allentown YMCA); Tiffany (identified Fata's assertions initially relate to the formulation of home as the Supervisor for Bethlehem YMCA); Hanna (identified plans while he was still in custody, and he alleges that as the supervisor for Bethlehem Shelter); Mr. Valentine the actions of several defendants “obstruct[ed] the legal (Victory House); Mr. Meyers (Stephen's House); and James ‘home plan’ process,” causing him to remain improperly in Goss (identified “as a ‘lead’ and member of the enterprise” custody rather than released on parole prior to the end of who “appear[ed] at the Allentown Rescue Mission chapel to his maximum custodial sentence. (See generally Compl. at manipulate [Fata]”). (Id.) 2-6.) Following his release, Fata alleges that several other defendants denied him “legal protection” and either impeded Public dockets reflect that Fata was incarcerated at LCJ his entry into residential programs or evicted him from in connection with probation revocation proceedings. See programs for arbitrary reasons. (Id.) Fata claims that all his Commonwealth v. Fata, No. CP-39-CR-0004857-2017 (C.P. difficulties in obtaining home plans and securing post release Lehigh). On January 16, 2024, Fata's probation was revoked, housing are tied to a conspiracy that is “orchestrated to keep and he was sentenced to nine to twenty-three months [him] in a crisis,” and “block the federal courts from hearing imprisonment. Id. Fata claims that he was eligible for early [his] case.” (Id. at 17.) release on July 25, 2024. (Compl. at 6.) In May 2024, Arcelly and a hearing was scheduled for July 11, 2024 before Lehigh entry to ARM. (Id. at 10-11.) Fata alleges that ARM staff County Court of Common Pleas Judge Thomas M. Caffrey. members didn't like him, and he was “falsely accused” of (Id. at 6-7.) At the hearing, Fata asked Judge Caffrey if he harassment as a “pretext for program exclusion.” (Id. at 3.) could be released to ARM, but District Attorney Jenkins He claims that other staff members verbally insulted him, and allegedly responded that it “wasn't a good idea.” (Id. at 7.) “started singling [him] out and oppressing [him] for eating Fata alleges that Evans and Jenkins “blocked his release path” late” or “for getting more than one cup of water.” (Id. at when Evans asserted that shelters were not an option for home 3, 12.) While residing at ARM, Fata filed several incident plans4 and when Jenkins made a statement on the record. reports with the APD. (Id. at 11.) He avers that he “was (Id. at 2, 19.) Fata's request for parole was denied. (Id. at 7.) oppressed by the officers” who “question[ed] [his] mental Fata further claims that Jessica from SPORE falsely claimed health.” (Id. at 11.) Fata alleges that he filed a report because that he had a “mental issue” to justify his exclusion from “information was deleted from [his] phone” and later filed orientation programs. (Id. at 2, 19.) another report because an ARM volunteer, James Goss, tried to befriend Fata even though that individual “and his daughter Fata claims that after he “return[ed] from court,” Arcelly started a conspiracy against [Fata] with a church back in ignored him for a week and refused to provide him “with 2017.” (Id.) Fata avers that Goss acted as a “direct liaison the list of other [home] options.” (Id. at 2, 7-8.) He contends between the 2017 conspiracy and current events.” (Id. at 19.) that Arcelly sabotaged his release by “withholding home Fata claims that the incident reports he made regarding Goss plan lists” and by obstructing his “ability to communicate and others were disregarded by Detectives Lenord, Flores, with his bank” to arrange for rental payments. (Id. at 2, 19.) and Manning, averring that they “ignored physical evidence Fata claims that Kester, who substituted for Arcelly while of organized crime to protect the enterprise.”5 (Id. at 11, he was away on vacation, “oppressed [him]” by providing 19.) On November 17, 2024, Fata was “kicked out” of ARM, false information and by failing to give him a list of home allegedly “for no legit reason” and he was banned for a year. plan options. (Id. at 2, 7.) Fata avers that Matte and Kremers, (Id. at 12-13.) who supervised the case workers, ignored him and “provided misinformation to subsequent staff ... to perpetuate [his] Fata then went to the Allentown YMCA and met Jess, ‘crisis.’ ” (Id.) Fata alleges that between July and September the YMCA Director. (Id. at 12.) Upon arrival, Fata told 2024, “[he] wrote grievances” regarding the failed attempts Jess that he “was a victim of organized crime and there to contact his bank and retrieve home plans. (Id. at 8.) All his was a conspiracy against [him].” (Id. at 12-13.) He got grievances were “denied or rejected wrongfully” by Warden along initially with everyone at the YMCA until a “staff Russell, and Russell dismissed “all grievances regarding the member conspired with Jess to oppress [Fata], and Jess started enterprise's interference.” (Id. at 2, 8, 19.) In December insulting [him].” (Id. at 3, 13, 19.) Fata alleges that Jess 2024, Krasley began “to oppress [Fata] by sending indirect continually insulted him and prevented him from showering, messages” about home plan options. (Id. at 9-10.) Fata claims until he “was kicked out on November 30th.” (Id.) On that Krasley blocked his release by, inter alia, “claiming December 1, 2025, Fata went to the APD and made another ignorance of available agencies while providing them to other incident report because information was missing from his inmates,” seizing his resources list, and utilizing punitive phone. (Id. at 13.) lockdown. (Id. at 2, 19.) Fata claims that by March 2025, he stopped researching home plan options because he was Fata next went to the Bethlehem Emergency Shelter and about to “max out.” (Id. at 10.) Fata was released from LCJ advised the staff, including the shelter's supervisor, Hanna, on September 25, 2025, the end date of his custodial sentence. about the “conspiracy” against him. (Id.) At some point (Id.) during his stay, Hanna told Fata that there were multiple complaints about him from other residents. (Id. at 14-15.) Fata *3 Following his release from jail, Fata walked to ARM claims that a resident named Dave “never stopped provoking” but was denied admittance by Jose because of a “fraudulent him. (Id. at 15.) After his conversation with Hanna, he background check.” (Id. at 3, 10, 19.) Jose also questioned allegedly found a bible in the area where he usually did Fata's “mental health to impede entry.” (Id. at 3.) Fata went his “legal work,” and he claims that the placement of the to the Allentown Police Department (“APD”) to clear up bible was “orchestrated specifically for [him]” in connection his background history, and after explaining to Jose that with the 2017 conspiracy formed against him. (Id. at 15, Bethlehem Emergency Shelter and was suspended from the U.S.C. § 1512). (Id.) shelter on February 11, 2026. (Id. at 15.) He asked Hanna to provide the names of staff members who “singled [him] Fata's fourth claim asserts a civil rights conspiracy in out” because he “needed it for [his] case.” (Id. at 3, 15-16.) violation of 42 U.S.C. § 1985(3). (Id.) He contends that Hanna did not respond to him until February 23, 2026, and “[t]he conspiracy was motivated by class-based (religious) because of the “abnormally prolonged response” and refusal animus,” alleging that the “acceptance of an inmate with “to identify provocateurs,” Fata “knew” that “Hanna was part identical religious views” into a home plan that Fata was of the conspiracy against [him].” (Id. at 3, 16.) On March denied acceptance into is evidence of a conspiracy. (Id.) Fata 16, 2026, Fata told Hanna that he was “being targeted” and further alleges that an email from “Jessica (S.P.O.R.E.) to that the rules were being used “as a weapon” against him. [ARM] establishes the ‘nexus’ for state-private liability.” (Id.) (Id. at 3, 17, 19.) Fata also told Hanna that people at the The fifth claim asserts cruel and unusual punishment in shelter were hacking his phone, and he planned to set up violation of the Eighth Amendment, allegedly because Fata “boobie traps” to find out who was in on the conspiracy. was moved to “ ‘the hole’ (3C) on September 27, 2024, (Id. at 17.) Hanna told him that he had to leave the shelter without penological justification.” (Id.) He also alleges that night because he would not follow the rules. (Id.) When deliberate indifference because the Defendants “knowingly Hanna suggested the Allentown YMCA, he responded that he exacerbat[ed] sleep deprivation—which required a Seroquel would not go there because “they're in on this conspiracy.” prescription—through institutional sabotage.” (Id.) Finally, (Id.) Fata avers that all Defendants are aware of the 2017 in the sixth claim, Fata alleges Fourteenth Amendment due conspiracy, and they “agreed to a ‘meeting of the minds’ process and equal protection violations. (Id. at 4-5.) He to utilize their official and private capacities to block [his] avers that Defendants arbitrarily denied and obstructed “the release and housing stability.” (Id. at 20.) legal ‘home plan’ process” and failed to “provide meaningful administrative review.” (Id.) He also avers that Arcelly and *4 Based on the foregoing allegations, Fata asserts six Evans treated him “differently than other similarly situated claims for relief. (Id. at 3-5.) The first three claims inmates by claiming facilities were not approved home plans allege violations of federal criminal statutes. His first while releasing others to those same facilities.” (Id. at 5.) claim, “Federal Trafficking and Hostage-Taking,” asserts that Defendants “utilized the legal ‘home plan’ requirement” to Fata claims that because of a “pattern of racketeering,” he “perpetuate [his] detention through coordinated sabotage” in suffered financial losses including “lost wages from Auto violation of federal criminal statutes that prohibit hostage Zone, the depletion of PNC bank funds, and increased taking (18 U.S.C. § 1203), forced labor (18 U.S.C. § 1589), transportation costs” because he was “forcibly moved and human trafficking (18 U.S.C. § 1595). (Id. at 3-4.) He also further from his place of employment.” (Id. at 5, 19-20.) contends that Defendants Jose, Jess, and Hanna “maintained He seeks monetary, punitive, and treble damages in an control via a ‘crisis loop’ of coordinated evictions” to prevent unspecified amount, and seeks “a permanent injunction him from advancing his legal claims and to keep law against the Defendants to cease all psychological and enforcement from investigating the 2017 conspiracy. (Id. at 4, systemic oppression.” (Id. at 5.) He also requests that the 17.) Fata's second claim, “Federal Stalking and Psychological Court “refer the evidence of criminal violations identified” Coercion,” alleges that Defendants used “gaslighting and the for criminal prosecution by the United States and/or creation of ‘boobie traps’ ” to place him under substantial Pennsylvania Attorney General. (Id.) emotional distress in violation of the federal criminal statute that prohibits stalking (18 U.S.C. § 2261A). (Id. at 4.) II. STANDARD OF REVIEW He claims that the orchestration of insults by Defendant The Court will grant Fata leave to proceed in forma pauperis Jess and certain residents “were tactical weapons” used to because it appears that he is incapable of paying the fees to impede his “legal standing.” (Id.) His third claim, “Tampering commence this civil action. Accordingly, 28 U.S.C. § 1915(e) with Victims and Witnesses,” alleges that even though the (2)(B) requires the Court to screen and dismiss the Complaint Defendants were aware of Fata's statements regarding the if it is frivolous, malicious, fails to state a claim, or seeks 2017 conspiracy, they “engaged in misleading conduct— relief from an immune defendant. Section 1915(e)(2)(B)(i) including ‘filibustering’ and misrepresentation of criminal requires the Court to dismiss Complaint if it is frivolous, and history—to hinder reporting federal offenses” in violation of is frivolous if it “lacks an arguable basis either in law or in alleging the conclusion to an ultimate legal issue.”). “[P]ro se fact.” Brown v. City of Philadelphia, 750 F. App'x 171, 173 litigants still must allege sufficient facts in their complaints to (3d Cir. 2018) (quoting Neitzke v. Williams, 490 U.S. 319, 325 support a claim.” Vogt, 8 F.4th at 185 (quoting Mala, 704 F.3d (1989)). The use of the term “frivolous” in § 1915 “embraces at 245). An unrepresented litigant “cannot flout procedural not only the inarguable legal conclusion, but also the fanciful rules — they must abide by the same rules that apply to all factual allegation.” Neitzke, 490 U.S. at 325. Section 1915 other litigants.” Id. (quoting Mala, 704 F.3d at 245); see also accords judges “the unusual power to pierce the veil of Doe v. Allegheny Cnty. Hous. Auth., No. 23-1105, 2024 WL the complaint's factual allegations and dismiss those claims 379959, at *3 (3d Cir. Feb. 1, 2024) (“While a court must whose factual contentions are clearly baseless[,]” including liberally construe the allegations and ‘apply the applicable claims that describe “fantastic or delusional scenarios[.]” Id. law, irrespective of whether the pro se litigant mentioned it at 327-28; see also Mitchell v. Horn, 318 F.3d 523, 530 (3d b[y] name,’ Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. Cir. 2003). “[A] finding of factual frivolousness is appropriate 2002), this does not require the court to act as an advocate when the facts alleged rise to the level of the irrational or to identify any possible claim that the facts alleged could the wholly incredible, whether or not there are judicially potentially support.”). noticeable facts available to contradict them.” Smith v. N. Cambria Police, No. 25-1273, 2025 WL 1324070, at *1 (3d Cir. May 7, 2025) (per curiam) (quoting Denton v. Hernandez, III. DISCUSSION 504 U.S. 25, 33 (1992)). A claim is legally baseless if it is A. Frivolous Claims “based on an indisputably meritless legal theory.” Deutsch v. Fata contends that there is a vast conspiracy to frame him United States, 67 F.3d 1080, 1085 (3d Cir. 1995) (holding and cover up sexual abuse. (Compl. at 18.) He asserts that frivolous a suit alleging that prison officials took an inmate's the conspiracy, which spans across two states, was started pen and refused to give it back). in 2017 by a “Christian religious-based organization” that recruited family members and government officials to oppress *5 Whether the Complaint fails to state a claim under § him “to the extreme of [his] death, by either manipulating a 1915(e)(2)(B)(ii) is governed by the same standard applicable fatal ‘accident’ or ‘situation’ ” or push him to commit suicide. to motions to dismiss under Federal Rule of Civil Procedure (Id.) 12(b)(6), see Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999), which requires the Court to determine whether Fata asserts a civil RICO claim based on this conspiracy, the Complaint contains “sufficient factual matter, accepted alleging that an “association-in-fact enterprise,” consisting as true, to ‘state a claim to relief that is plausible on its of all Defendants together with a “Christian religious face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting organization,” has been operating “with a shared goal (cover Bell Atl. Corp. v. Twombly, 560 U.S. 544, 556 (2007)). up of 2017 case) where state actors act as ‘gatekeepers’ and At the screening stage, the Court will accept the facts private actors act as ‘enforcers.’ ” (Id. at 20.) He avers that alleged in the pro se Complaint as true, draw all reasonable the Defendants “agreed to a ‘meeting of the minds’ to utilize inferences in the plaintiff's favor, and ask only whether the their official and private capacities to block [his] release and Complaint, liberally construed, contains facts sufficient to housing stability.” (Id.) Fata contends that the enterprise has state a plausible claim. Shorter v. United States, 12 F.4th 366, committed “racketeering acts” designed to sabotage “home 374 (3d Cir. 2021), abrogation on other grounds recognized plans and housing” to keep him “in a perpetual state of ‘crisis’ by Fisher v. Hollingsworth, 115 F.4th 197 (3d Cir. 2024). to impede his legal access to federal courts.”7 (Id. at 17, 20.) As Fata is proceeding pro se, the Court construes his allegations liberally. Vogt v. Wetzel, 8 F.4th 182, 185 (3d *6 As the Court has advised Fata on numerous prior Cir. 2021) (citing Mala v. Crown Bay Marina, Inc., 704 occasions, his allegations that a multistate conspiracy has F.3d 239, 244-45 (3d Cir. 2013)). The Court will “apply the been formed to push him to suicide or otherwise cause relevant legal principle even when the complaint has failed his death are wholly incredible and lack a basis in fact. to name it.” Id. (quoting Mala, 704 F.3d at 245). However, Accordingly, the Court will dismiss any claims based on these conclusory allegations do not suffice. Iqbal, 556 U.S. at 678; allegations as factually baseless, without leave to amend. see also Martinez v. UPMC Susquehanna, 986 F.3d 261, 266 See, e.g., Caterbone v. Nat'l Sec. Agency, 698 F. App'x were based on plaintiff's assertion that he was a “victim Maio v. Aetna, Inc., 221 F.3d 472, 482–83 (3d Cir. 2000). of U.S. sponsored mind control and cointelpro harassment program”); Mina v. Chester County, 679 F. App'x 192, Fata does not allege any conduct that could be considered 195 (3d Cir. 2017) (per curiam) (affirming dismissal of racketeering activity for purposes of setting forth a legal basis plaintiff's claims that 62 defendants had a vast conspiracy for a RICO claim. See Tapia-Ortiz v. Winter, 185 F.3d 8, against him spanning twenty years); Price v. Fed. Bureau of 11 (2d Cir. 1999) (“The claim that the defendants [including Investigation, No. 20-3015, 2020 WL 4368063, at *3 (E.D. numerous judges, staff attorneys, and an assistant united Pa. July 30, 2020), aff'd, 845 F. App'x 106 (3d Cir. 2021) states attorney] engaged in a RICO conspiracy by failing to (finding plaintiff's allegations to be factually frivolous where properly address issues on appeal and ‘bribing’ witnesses to plaintiff asserted that “numerous law enforcement agencies, testify pursuant to plea agreements lacks any arguable basis attorneys, prison officials, and medical professionals have in law and was properly dismissed as frivolous.”); Mierzwa used neurological and psychological technology to control v. Safe & Secure Self Storage, LLC, 493 F. App'x 273, 276 the ‘four basic groups of his brain and mental functions’ (3d Cir. 2012) (“[C]onclusory allegations that defendants and “that the use of this ‘technology’ and ‘mind control’ has conspired for the purpose of defrauding [Mierzwa] are simply caused him numerous impairments and drove him to criminal inadequate to plead a valid RICO claim.”) Fata's conclusory and erratic behavior”); Jorge v. Torres, No. 18-14674, 2019 allegations that more than twenty individuals employed by WL 2385942, at *3 (D.N.J. June 6, 2019) (“Plaintiff's factual approximately ten different county, city, or private entities allegations that the Police are monitoring his every move and conspired with an unidentified “Christian religious-based that the Police do so by telephone recruitment ‘of informants, organization” for the purpose of sabotaging his “home plans spies, and willing constituates [sic]’ is exactly the type of and housing” are inadequate to plead a valid RICO claim ‘fantastic or delusional scenario[ ]’ warranting dismissal and he fails to allege any injury to his business or property. under 28 U.S.C. § 1915(e)(2)(B)(i).” (alterations in original)). Accordingly, his civil RICO claims will be dismissed as legally baseless, without leave to amend. There are additional Moreover, Fata's RICO claims are legally baseless. RICO reasons, however, as to why Fata's claims cannot proceed. “makes it unlawful ‘for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct B. Civil Claims Based on Criminal Statutes or participate, directly or indirectly, in the conduct of such *7 Fata cites several federal criminal statutes in his enterprise's affairs through a pattern of racketeering activity.’ Complaint, namely 18 U.S.C. § 1203 (hostage taking), § 1512 ” In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 362 (witness tampering), § 1589 (forced labor), and § 2261A (3d Cir. 2010) (quoting 18 U.S.C. § 1962(c)). To state (stalking). (Compl. at 1-2). To the extent he seeks to assert a civil RICO claim, a plaintiff must plausibly allege the civil liability based on those statutes, his claims are not following elements: “(1) conduct (2) of an enterprise (3) plausible because criminal statutes generally do not give rise through a pattern (4) of racketeering activity.” Id. (internal to a basis for civil liability. See Brown v. City of Philadelphia quotations omitted). “ ‘Racketeering activity’ is defined in the Office of Human Res., 735 F. App'x 55, 56 (3d Cir. 2018) (per RICO statute to comprise the state law offenses of murder, curiam) (“Brown alleges that the defendants violated various kidnaping, gambling, arson, robbery, bribery, extortion, criminal statutes, but most do not provide a private cause dealing in obscene matter, and dealing in a controlled of action.”). Indeed, the United States Supreme Court has substance or listed chemical, as well as several federal stated that, unless specifically provided for, federal criminal offenses such as mail and wire fraud.” Talley v. Halpern ex statutes rarely create private rights of action. Nashville Milk rel. Est. of Winderman, No. 05-4184, 2005 WL 2002611, at Co. v. Carnation Co., 355 U.S. 373, 377 (1958) (stating that *4 (E.D. Pa. Aug. 16, 2005) (citing 18 U.S.C. § 1961(1)). where a statute “contains only penal sanctions for violation “According to the RICO statute, a ‘pattern of racketeering of it provisions; in the absence of a clear expression of activity’ requires at least two acts of racketeering activity congressional intent to the contrary, these sanctions should within a ten-year period.” In re Ins. Brokerage Antitrust Litig., under familiar principles be considered exclusive, rather than 618 F.3d at 363 (quoting 18 U.S.C. § 1961(5)). Additionally, a supplemented by civil sanctions of a distinct statute”); Cent. plaintiff must have sustained “injury to business or property” Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 190 (1994) (“We have been quite reluctant violated and some person harmed does not automatically give (E.D. Pa. June 13, 2025) (citing Palencia v. N. Point Veterans rise to a private cause of action for the injured person. Touche Program-Turning Point, No. 20-1691, 2020 WL 7059557, at Ross & Co. v. Redington, 442 U.S. 560, 568 (1979); Cannon *1 (W.D. Pa. Dec. 2, 2020) (“18 U.S.C. § 1512 is a criminal v. University of Chicago, 441 U.S. 677, 689 (1979). statute that does not create a private cause of action.”)). Claim one of Fata's Complaint asserts federal trafficking and Fata also cites 18 Pa. Cons. Stat. §§ 4911 (tampering with hostage taking in violation of 18 U.S.C. §§ 1203, 1595, and public records or information) and 5301 (official oppression) 1589. (Compl. at 3-4.) However, the hostage taking statute, as a basis for claims. (Compl. at 2.) Courts, including the § 1203, does not give rise to civil liability. Rodriguez v. City United States Court of Appeals for the Third Circuit, routinely of Salem, No. 23-01863, 2024 WL 4546365, at *4 (D. Or. dismiss claims seeking to impose civil liability under various Oct. 2, 2024), report and recommendation adopted, 2024 WL sections of the Pennsylvania Crimes Code, finding that the 4544317 (D. Or. Oct. 22, 2024) (concluding that 18 U.S.C. “Code gives no authority for a private cause of action and § 1203 “is part of federal criminal code, and there is no none has been implied.” Youst v. Roth, No. 23-0848, 2023 WL indication of a congressional intent to create a private right 3821813, at *4 (E.D. Pa. June 5, 2023) (quoting Martrano and private remedy”); Kelly v. City of New Philadelphia, No. v. Quizno's Franchise Co., No. 08-0932, 2009 WL 1704469, 11-474, 2011 WL 3705151, at *2 n.3 (N.D. Ohio Aug. 22, at *12 (W.D. Pa. June 15, 2009)); see also Williams v. 2011) (stating that 18 U.S.C. § 1203 does not provide for Wetzel, 827 F. App'x 158, 162 (3d Cir. 2020) (per curiam) “a private right of action”). Fata's claims pursuant to the (recognizing that plaintiff's civil claims brought pursuant to TVPRA, which encompasses 18 U.S.C. §§ 1589 and 1595, the Pennsylvania Crimes Code were properly rejected by the are also not plausible. Specifically, § 1589 does not provide district court because there was no private right of action a basis for a private cause of action. See Brown v. U.S. Dist. available under the Code); Abouloh v. Lehigh Cnty. Prison, Ct. for the E. Dist. of Pa., No. 18-747 (E.D. Pa.) (Apr. 19, No. 25-3377, 2025 WL 2654904, at *8 (E.D. Pa. Sept. 15, 2018 Order at 6 (dismissing claims under 18 U.S.C. § 1589 as 2025). Accordingly, Fata's claims based on these criminal “meritless and frivolous”)), aff'd, 740 F. App'x 239, 240 (3d statutes will be dismissed with prejudice. Cir. 2018) (per curiam). Although 18 U.S.C. § 1595 provides for a civil remedy for violations of the TVPRA, Fata fails Similarly, any claims alleging criminal liability or a violation to allege any facts suggesting that Defendants either forced of a criminal statute as a basis for civil liability are dismissed him into labor, trafficked him for forced labor, or benefitted with prejudice. (See Compl. at 5 wherein Fata seeks relief financially from peonage or forced labor.8 See Brown v. U.S. in the form of “criminal investigation and prosecution.”) Dist. Ct. for E. Dist. of Pa., No. 18-1108, 2018 WL 11463543, “A private citizen lacks a judicially cognizable interest in at *3 (E.D. Pa. Apr. 19, 2018), aff'd sub nom., Brown v. City the prosecution or nonprosecution of another.” See Linda of Phila. Off. of Hum. Res., 735 F. App'x 55 (3d Cir. 2018). R.S. v. Richard D., 410 U.S. 614, 619 (1973) (finding that a citizen lacks standing to contest prosecutorial policies In Fata's second claim, he alleges federal stalking and “when he himself is neither prosecuted nor threatened with psychological coercion in violation of 18 U.S.C. § 2261A, prosecution.”) (citations omitted). Fata cannot compel a but, again, there is no private right of action under that criminal investigation by filing a complaint with this Court statute. See Weisman v. Baur, 2021 WL 3403519, at *2 (E.D. because the United States District Courts have no authority to Pa. Aug. 4, 2021) (dismissing civil claim brought under 18 order any law enforcement agencies or prosecutors to initiate U.S.C. § 2261A); Humphrey v. Pa. Ct. of Common Pleas of investigations or prosecutions. See Wagner v. United States Phila., 2021 WL 268498, at *2 n.3 (E.D. Pa. Jan. 27, 2021) Gov't, No. 23-1626, 2023 WL 3948820, at *1 (D.D.C. June (“[N]umerous federal courts have held that no private right 9, 2023) (citing Otero v. U.S. Attorney General, 832 F.2d 141, of action exists under [the Violence Against Women Act, 18 141-42 (11th Cir. 1987); Jafree v. Barber, 689 F.2d 640, 643 U.S.C. §§ 2261-2262].”). (7th Cir. 1982)). “[A]n agency's decision not to prosecute or enforce, whether through civil or criminal process, is *8 Finally, in claim three, Fata asserts tampering with a decision generally committed to an agency's absolute victims and witnesses in violation of 18 U.S.C. § 1512. discretion.” Wagner, 2023 WL 3948820, at *1 (quoting (Compl. at 4.) However, the federal witness tampering statute, Heckler v. Chaney, 470 U.S. 821, 831 (1985)); see also Smith § 1512, does not provide a private cause of action. Shaw v. v. Friel, No. 19-943, 2019 WL 3025239, at *4 (M.D. Pa. WL 3003380 (M.D. Pa. July 10, 2019) (collecting cases and and actions taken in furtherance of the conspiracy, will be stating “courts have long held that a civil rights plaintiff deemed sufficient.”). “[T]o properly plead an unconstitutional may not seek relief in civil litigation in the form of an order conspiracy, a plaintiff must assert facts from which a directing the criminal prosecution of some third parties”). conspiratorial agreement can be inferred.” Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 178 (3d Cir. 2010). “[A] bare assertion of conspiracy will not suffice.” C. Civil Rights Conspiracy Claims Twombly, 550 U.S. at 556. Fata's claims fail for several *9 Fata's fourth claim alleges a civil rights conspiracy in reasons. First, there is no allegation that a conspiracy was violation of 42 U.S.C. § 1985(3). (Compl. at 1, 4.) This motivated by race or a class-based discriminatory animus as section creates a cause of action against any two persons required by § 1985(3). Fata does not identify his race, nor does who “conspire ... for the purpose of depriving, either directly he make any allegation that race was the motivation behind or indirectly, any person or class of persons of the equal the Defendants' alleged actions. Although Fata conclusively protection of the laws, or of equal privileges and immunities asserts that the “conspiracy was motivated by class-based under the laws....” 42 U.S.C. § 1985(3). To state a plausible (religious) animus” (Compl. at 4), the Complaint does not claim under § 1985(3) a plaintiff must allege the following allege Fata's membership in any religion, nor does it suggest elements: (1) a conspiracy; (2) motivated by a racial or class that any of the Defendants named harbored discriminatory based discriminatory animus designed to deprive, directly animus against him on the basis of his religion.9 Also, Fata or indirectly, any person or class of persons of the equal asserts the existence of a conspiracy only in conclusory terms protection of the laws; (3) an act in furtherance of the and provides no facts from which a conspiratorial agreement conspiracy; and (4) an injury to a person or property or may be inferred. Groce v. City of Phila. L. Dep't, No. 21-5132, the deprivation of any right or privilege of a citizen of the 2022 WL 493418, at *7 (E.D. Pa. Feb. 17, 2022) (dismissing United States. Lake v. Arnold, 112 F.3d 682, 685 (3d Cir. conspiracy claim as wholly conclusory where the plaintiff 1997). Significantly, the “language requiring intent to deprive failed to alleged facts regarding the formation of a conspiracy of equal protection, or equal privileges and immunities, between any Defendants or any other individuals, the period means that there must be some racial, or perhaps otherwise of the conspiracy, or actions taken by the alleged conspirators class-based, invidiously discriminatory animus behind the to achieve the alleged purpose thereof). Fata's § 1985(3) conspirators' action.” United Bhd. of Carpenters & Joiners of claims are not plausible and will be dismissed. Am., Local 610, AFL-CIO v. Scott, 463 U.S. 825, 835 (1983) (quoting Griffin v. Breckenridge, 403 U.S. 88, 102 (1971); see also Farber v. City of Paterson, 440 F.3d 131, 136 (3d D. Due Process Claims Cir. 2006) (explaining that “§ 1985(3) defendants must have *10 Fata alleges that the Defendants' actions in “arbitrarily allegedly conspired against a group that has an identifiable denying and obstructing the ‘legal’ home plan process,” existence independent of the fact that its members are victims resulted in the denial of his procedural due process rights of the defendants' tortious conduct”); Hauptmann v. Wilentz, under the Fourteenth Amendment. (Compl. at 4.) He also 570 F. Supp. 351, 386 (D.N.J. 1983) (“If the conspiracy claims, without further explanation, that he was denied only affects the plaintiff individually, the allegations will not “meaningful administrative review.” (Id. at 4-5.) Liberally satisfy the class-based animus requirement.”), aff'd sub nom., construing his claims, Fata alleges that Defendants somehow Appeal of Hauptmann, 770 F.2d 1070 (3d Cir. 1985). caused him to remain improperly in custody rather than released on early parole at some point prior to the end of his Moreover, a plaintiff must allege specific facts to state a maximum custodial sentence. The Court can discern no claim plausible § 1985(3) claim. Robinson v. McCorkle, 462 F.2d that rises to the level of a due process violation.10 111, 113 (3d Cir. 1972) (“With near unanimity, the courts have rejected complaints containing mere conclusory allegations The Fourteenth Amendment to the United States Constitution of deprivations of constitutional rights protected under § provides that the State may not “deprive any person of life, 1985(3). A conspiracy claim based upon § 1985(3) requires liberty, or property without due process of law.” U.S. Const. a clear showing of invidious, purposeful and intentional amend. XIV. An examination of a procedural due process discrimination between classes or individuals.”); Grigsby v. claim under the Fourteenth Amendment proceeds in two Kane, 250 F. Supp. 2d 453, 458 (M.D. Pa. 2003) (“[O]nly steps. See Bd. of Regents of State Colleges v. Roth, 408 U.S. exists a liberty or property interest which has been interfered For these reasons, any claims related to the loss of parole do not allege a separate violation of Fata's due process rights or with by the state. Kentucky Dep't of Corr. v. Thompson, otherwise state a plausible constitutional claim. 490 U.S. 454, 460 (1989) (citing Bd. of Regents, 408 U.S. at 571). Second, if and only if a petitioner establishes the existence of a protected interest, the court must examine E. Claims Based on Grievances whether the procedures attendant upon that deprivation were Fata asserts in part that Warden Russell “rejected wrongfully” constitutionally sufficient. Id. numerous grievances he made with respect to his attempts to secure home plans. (See Compl. at 8.) The Court has already A convicted individual has no constitutionally protected dismissed any due process claims against Defendants based liberty interest in parole or otherwise being released before on Fata's denial of parole. To the extent Fata also asserts the expiration of a valid sentence. See Greenholtz v. Inmates a stand-alone claim based on the grievance process, it too of Nebraska Penal & Corr. Complex, 442 U.S. 1, 7 (1979); is dismissed because “prisoners do not have a constitutional Thomas v. Buechele, 569 F. App'x 93, 95 (3d Cir. 2014) right to prison grievance procedures.” Gerholt v. Wetzel, 858 (concluding no due process violation caused by delayed F. App'x 32, 34 (3d Cir. 2021) (per curiam) (citing Massey v. parole because the plaintiff had “not alleged the deprivation Helman, 259 F.3d 641, 647 (7th Cir. 2001) and Flick v. Alba, of a protected liberty interest”). Thus, if prisoners in 932 F.2d 728, 729 (8th Cir. 1991) (per curiam)). Accordingly, Pennsylvania have a protected liberty interest in some aspect allegations such as those raised by Fata predicated on failures of their parole, it must derive from Pennsylvania law. See of the grievance process or improper handling of or response Sandin v. Conner, 515 U.S. 472, 483-84 (1995) (recognizing to grievances do not give rise to a constitutional claim. See that “States may ... create liberty interests which are protected Woods v. First Corr. Med. Inc., 446 F. App'x 400, 403 (3d Cir. by the Due Process Clause”). 2011) (per curiam) (“We agree with the District Court that because a prisoner has no free-standing constitutional right *11 The statutes governing Pennsylvania's Board of to an effective grievance process, Woods cannot maintain a Probation and Parole, however, do not grant state prisoners constitutional claim against Lucas based upon his perception any constitutionally protected liberty interest in being that she ignored and/or failed to properly investigate his released on parole prior to the expiration of their controlling grievances.” (internal citation omitted)); Burnside v. Moser, maximum sentences. See Burkett v. Love, 89 F.3d 135, 139 138 F. App'x 414, 416 (3d Cir. 2005) (per curiam) (explaining (3d Cir. 1996) (recognizing the general principle that the that “[i]nmates do not have a constitutionally protected right Pennsylvania parole statute does not create a liberty interest to the prison grievance process” and that “a state grievance in the right to be paroled); Coady v. Vaughn, 770 A.2d 287, procedure does not confer any substantive constitutional 289 (Pa. 2001) (“It is undisputed that [an inmate] does not right upon prison inmates” (internal quotations and citations have a clear legal right to the grant of parole, nor does omitted)). the board have a corresponding duty to grant the same.”). Since Fata has no constitutionally protected liberty interest in parole or any parole procedures, any due process violation IV. CONCLUSION based on Defendants' actions that allegedly led to his loss For the foregoing reasons, the Court will dismiss Fata's of parole necessarily must fail. See, e.g., Newman v. Beard, Complaint in its entirety as frivolous and for failure to state a No. 06-214, 2008 WL 2149605, at *2 (W.D. Pa. May 21, claim, pursuant 28 U.S.C. § 1915(e)(2)(B)(i) and (ii). Leave 2008) (claim for violation of due process based on deficient to amend will not be given as any attempt to amend would parole procedures in interview conducted by the Pennsylvania be futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, Board of Probation and Parole fails because there is no liberty 108, 110 (3d Cir. 2002). An appropriate order follows. interest in parole or any of its procedures); Nellom v. Luber, No. 02-2190, 2004 WL 816922, at *10 (E.D. Pa. Mar. 18, 2004) (due process claim based on parole procedures fails All Citations because there is no constitutionally protected liberty interest Slip Copy, 2026 WL 1831673 Footnotes 1 The allegations set forth in this Memorandum are taken from Fata's Complaint (ECF No. 2) and state court dockets of which this Court may take judicial notice. See Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). The Court has also considered the Exhibits filed by Fata on April 8, 2026. See ECF No. 5. The Court adopts the sequential pagination assigned to the Complaint by the CM/ECF docketing system. Grammar, spelling, and punctuation errors in quotes from Fata's submissions are cleaned up where necessary. 2 The allegations in Fata's “2nd Statement of Claim” (see Compl. at 18) are repetitive to those made in Fata's prior cases. See Civil Action Nos. 24-2402, 24-4862, 24-6934, 24-6935, and 24-6936. In these cases, Fata alleged that more than fifty different individuals, family members, attorneys, state and federal law enforcement agencies, and governmental entities from Pennsylvania and New Jersey had participated in a years-long conspiracy to cover up a 2017 crime inflicted on his son. In each case, the Court dismissed Fata's conspiracy claims as factually baseless. Fata appealed the dismissal of his Complaint in each case, and the United States Court of Appeals for the Third Circuit affirmed in all cases. 3 The Specialized Program Offering Recovery and Education (“SPORE”) “is a partnership between the Office of Lehigh County Mental Health and the Juvenile Probation Department that provides a mental health caseworker and a probation officer to jointly and intensively supervise consumers who experience severe [mental health] problems.” See Lehigh County, Pennsylvania, https://www.lehighcounty.org/Departments/ Human-Services/Mental-Health/Adult-Mental-Health/-Case-Management (last visited June 12, 2026). 4 Public dockets reflect that Judge Caffrey entered orders on October 23, 2024 and November 20, 2024 denying Fata's motions for release to ARM. See Fata, No. CP-39-CR-0004857-2017. 5 Fata avers that the detectives denied him legal protection, ignored his request for a PFA against Goss, and “discarded physical evidence provided on an SD card regarding the 2017 conspiracy.” (Compl. at 3.) 6 Fata received warnings for leaving the shelter after 7:00 a.m., not making his bed, bringing food into the shelter and eating it in the hallway, printing documents at 1:00 a.m., using his cell phone, and smoking cigarettes. (Compl. at 14-16.) 7 As part of his assertion that he was being “oppressed by the staff” at LCJ, Fata avers that he was “wrongfully” moved to “the hole” on September 27, 2024, “without penological justification.” (Compl. at 4, 8.) He also alleges Defendants “knowingly exacerbate[ed] sleep deprivation—which required a Seroquel prescription —through institutional sabotage.” (Id.) Fata's passing references to “cruel and unusual punishment” and “deliberate indifference” are unsupported by underlying allegations and thus insufficient to assert a plausible claim. See Higgins v. Bayada Home Health Care Inc., 62 F.4th 755, 763 (3d Cir. 2023) (“A passing reference to an issue will not suffice to bring that issue before this court.”) (cleaned up) (quoting Laborers' Int'l Union of N. Am., AFL-CIO v. Foster Wheeler Energy Corp., 26 F.3d 375, 398 (3d Cir. 1994)). Moreover, in the prison context, “[d]ue process protection for a state created liberty interest is ... limited to those situations where deprivation of that interest ‘imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.’ ” Griffin v. Vaughn, 112 F.3d 703, 706 (3d Cir. 1997) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). “[C]onfinement in administrative or punitive segregation will rarely be sufficient, without more, to establish the kind of ‘atypical’ deprivation of prison life necessary to confinement). 8 As a convicted inmate in custody for a parole violation, Fata also has no constitutional claim arising from forced labor while he was incarcerated. See Dmytryszyn v. Hickenlooper, 527 F. App'x 757, 760 (10th Cir. 2013) (holding that in the context of a convicted prisoner, the courts have held that prisoners have no Thirteenth Amendment or liberty or property interest in payment for their work and may be lawfully compelled to work) (nonprecedential). 9 Fata avers that the “evidence” supporting this claim is “the acceptance of an inmate with identical religious views” into Jubilee Ministries, while Fata was denied acceptance. (Compl. at 4.) Fata alleges that he was provided an application by Krasley, and he filled out the application and provided his “perspective on religion.” (Id. at 9.) He alleges that the other inmate with “the very same perspective” was granted admittance and released from prison. (Id.) Fata, however, received “an abnormal denial letter” from Mark Habecker, who is not named as a Defendant, indicating that Fata “was ‘not teachable’ following a review of [his] religious perspective essay.” (Id. at 9, 25.) 10 Fata also mentions that “Defendants Arcelly and Evans intentionally treated [him] differently than other similarly situated inmates” because they allegedly released other inmates to facilities while allegedly telling him that those facilities “were not approved home plans.” (Compl. at 5.) Fata's mere recitation of the Fourteenth Amendment's Equal Protection Clause in the same claim as his due process claim fails to allege a separate plausible claim. To plead an equal protection violation plausibly, a prisoner must allege “that he was treated differently than other similarly situated inmates, and that this different treatment was the result of intentional discrimination based on his membership in a protected class.” Mack v. Warden Loretto FCI, 839 F.3d 286 (3d Cir. 2016) (citing Hassan v. City of New York, 804 F.3d 277, 294, 298 (3d Cir. 2015)). “Persons are ‘similarly situated’ for purposes of an equal protection claim when ‘they are alike in all relevant aspects.’ ” Startzell v. City of Philadelphia, 533 F.3d 183, 203 (3d Cir. 2008) (emphasis omitted). Fata does not allege that he is a member of a protected class or explain how he was discriminated against based on that membership. He also fails to allege how he was treated differently than other similarly situated inmates who were not in a protected class. See Perano v. Twp. Of Tilden, 423 F. App'x 234, 238 (3d Cir. 2011) (“At the motion to dismiss stage, Perano must allege facts sufficient to make plausible the existence of such similarly situated parties.”); Carson v. Mulvihill, 488 F. App'x 554, 563 (3d Cir. 2012) (rejecting equal protection claim when inmate did “not allege facts showing that he was similarly situated to the inmates” who received accommodations “or that there was no rational basis for his different treatment”); Beitler v. City of Allentown, No. 22-104, 2022 WL 768151, at *8 (E.D. Pa. Mar. 14, 2022) (“We should dismiss the claim when an incarcerated person fails to identify similarly situated individuals being treated differently.”). Accordingly, any equal protection claim must be dismissed. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. The Court reviews de novo those portions of the Magistrate Fo Judge's findings and recommendations that have been KeyCite Blue-Siriped Flag properly preserved with a specific objection. Nambiar vy. by Flores v. KW Call Center Services LLC, □□□ Cir, June Cent. Orthopedic Grp., LLP, 158 F.4th 349, 359 (2d Cir. 2025); 28 U.S.C. § 636(b)(1)(C). “A proper objection is 2026 WL 1481648 one that identifies the specific portions of the [Report- Only the Westlaw citation is currently available. Recommendation] that the objector asserts are erroneous United States District Court, N.D. New York. and provides a basis for this assertion.” Kruger y. Virgin Atl. Airways, Ltd., 976 F. Supp. 2d 290, 296 □□□□□□□□□ Valerie FLORES, Plaintiff, 2013) (citation omitted). Properly raised objections must be V. “specific and clearly aimed at particular findings” in the KW CALL CENTER SERVICES report. Molefe vy. KLM Royal Dutch Airlines, 602 F. Supp. and Michelle Diaz. Defendants. 2d 485, 487 (S.D.N.Y. 2009). Findings and recommendations as to which there was no properly preserved objection are 1:26-cv-122 (BKS/MIK) reviewed for clear error. Id. Signed May 27, 2026 II. DISCUSSION Attorneys and Law Firms A. Objection Plaintiff pro se: Valerie Flores, Albany, NY 12201 Plaintiff objects “to the court dismissing the case with prejudice.” (Dkt. No. 9, at 1). Plaintiffs objection is unfounded insofar as it challenges the Report- MEMORANDUM-DECISION AND ORDER Recommendation, which recommends dismissal without prejudice and with leave to amend. | (Dkt. No. 5, at 8). As this Brenda K. Sannes, Chief United States District Judge is Plaintiff's only objection, the Court reviews the remainder L INTRODUCTION of the Report-Recommendation for clear error. *1 Plaintiff pro se Valerie Flores brought this action alleging In the Report-Recommendation, Magistrate Judge Katz ri wea suse Soon Act renee Title recommended dismissal as to Defendant KW Call Center Deanne Act (“AD 1) 49 Us Cs 1 OI et sea. Services because the complaint failed to “plead any action ° ° or inaction that can be attributed to KW Call Center meee aeeeeaaaee enon a Seen Services.” (Dkt. No. 5, at 5). KW Call Center Services is not U 15 a : aE 1 fi fr 1 d wee mentioned in the body of the complaint or in connection with (DK °- on Dh N ' 5 This ton fo any allegation. Thus, the Court finds no error in the dismissal proceed in forma p eris ( ) ( t. No. 2). is matter recommendation. Magistrate Judge Katz also recommended was referred to United States Magistrate Judge Mitchell J. . . . . Katz for an initial revi nt to 28 USC. § 1915(c) dismissal of the claims against Defendant Michelle Diaz on Rl ox On heb ° 5 5026. M ist . the grounds that, without more, the allegations that Diaz failed Kate wld en ° heat ° ° LP to hire Plaintiff and may have stalked Plaintiff do not state udge Katz granted Plaintiffs application to procee , . . . . and issued a Re ort Recommendation vecommendin that claims for relief, and even if they did, venue is improper P . 4. 6 . because such claims allegedly arose in Nevada and Illinois. Plaintiff's complaint be dismissed without prejudice and with (Id. at 5-6). The Court finds no error in the recommended leave to amend. (Dkt. No. 5). On April 1, 2026, Plaintiff filed . timely objections to the Report-Recommendation, (Dkt. No dismissal of the claims against Diaz. However, the complaint 9) he reasons that follow the Re ort-Recommendation cites several employment discrimination and other federal dopted in its entiret , P statutes that the Report-Recommendation did not discuss. 18 adopted mn As enenery: (See Dkt. No. 1, at 3 (citing Title VIL, ADA, ADEA, 18 U.S.C. § 2261(a), and 18 U.S.C. § 1514)). For the reasons that follow, Il. STANDARD OF REVIEW the Court finds the complaint fails to state a claim for relief under any federal statute.

B. Federal Statutes Services are dismissed without prejudice. *2 Construed liberally, the complaint may be read to assert: (1) that Defendants’ failure to hire her constituted unlawful discrimination or retaliation, in violation of Title VII, the ADA, and the ADEA; and (2) that Defendants violated 18 b. ADA U.S.C. § 2261(a) (interstate domestic violence) and 18 U.S.C. The ADA prohibits discrimination “against a qualified § 1514 (authorizing government or court, on its own motion, individual on the basis of disability in regard to job to seek temporary restraining order in criminal case). (Dkt. application procedures, the hiring, advancement, or discharge No. 1, at 3). of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). A prima facie case of disability 1. Individual Defendant Michelle Diaz discrimination under the ADA requires a plaintiff to show: “(1) the defendant is covered by the ADA; (2) [the] plaintiff Plaintiffs’ Title VII, ADA, and ADEA claims against Diaz suffers from or is regarded as suffering from a disability in her individual capacity, must be dismissed with prejudice within the meaning of the ADA; (3) [the] plaintiff was because individuals are not subject to liability under these qualified to perform the essential functions of the job, with statutes. See Spiegel v. Schulmann, 604 F.3d 72, 79 (2d or without reasonable accommodation; and (4) [the] plaintiff Cir. 2010) (noting that “the remedial provisions of Title suffered an adverse employment action because of [her] VII ... do not provide for individual liability”); Garibaldi disability or perceived disability.” Luka v. Bard Coll., 263 F. v. Anixter, Inc., 407 F. Supp. 2d 449, 451 (W.D.N.Y. 2006) Supp. 3d 478, 486 (S.D.N.Y. 2017) (quoting Capobianco v. (“[T]here is no individual liability under any of the federal City of New York, 422 F.3d 47, 56 (2d Cir. 2005)). anti-discrimination statutes, including Title VII, the ADA, and the ADEA.”). Here, the complaint fails to allege any facts suggesting that Plaintiff suffers from or is regarded as suffering from a disability within the meaning of the ADA. Accordingly, the 2. Discrimination complaint fails to state a plausible claim for relief against KW Call Center Services under the ADA for employment discrimination. a. Title VII Under Title VII, it is illegal “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate c. ADEA against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of *3 The ADEA makes it “unlawful for an employer ... such individual's race, color, religion, sex, or national origin.” to discharge any individual ... because of such individual's 42 U.S.C. § 2000e-2(a). To state a claim for relief under Title age.” Lively v. WAFRA Inv. Advisory Grp., Inc., 6 F.4th 293, VII, “a plaintiff must plausibly allege that (1) the employer 302 (2d Cir. 2021) (quoting 29 U.S.C. § 623(a)). “Under took adverse action against him, and (2) h[er] race, color, the ADEA ... a prima facie case of age discrimination religion, sex or national origin was a motivating factor in consists of four elements: (1) the plaintiff's membership in a the employment decision.” Vega v. Hempstead Union Free protected class; (2) the plaintiff's qualification for a particular School Dist., 801 F.3d 72, 87 (2d Cir. 2015). position of employment; (3) an adverse employment action by the defendant employer; and (4) some minimal evidence In this case, the complaint fails to allege that Plaintiff falls suggesting an inference that the employer acted with within any category protected by Title VII, such as her discriminatory motivation.” Lebowitz v. New York City Dep't gender, race, or religion, or any facts that would allow a of Educ., 407 F. Supp. 3d 158, 170 (E.D.N.Y. 2017) (citing plausible inference that Defendant KW Call Center Services Littlejohn v. City of New York, 795 F.3d 297, 307 (2d Cir. discriminated against her on that basis. Indeed, as Magistrate 2015)). Judge Katz noted, Plaintiff alleges no facts regarding qualifications or suggesting that KW Call Center Services Ctr., No. 11-cv-984, 2012 WL 3062235, at *4 (S.D. Ill. July acted with discriminatory intent. Accordingly, Plaintiff's 26, 2012) (“18 U.S.C. § 1514 provides a mechanism for ADEA claims against Defendant KW Call Services are protecting a victim or witness in a Federal criminal case, not a dismissed without prejudice. civil rights action.”). Accordingly, any claims under 18 U.S.C. § 2261(a) and 18 U.S.C. § 1514, are dismissed with prejudice. 3. Retaliation C. Leave to Amend “Generally, leave to amend should be freely given, and a pro “Claims for retaliation [under the ADA] are analyzed under se litigant in particular should be afforded every reasonable the same burden-shifting framework established for Title VII opportunity to demonstrate that [s]he has a valid claim.” cases.” Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Matima v. Celli, 228 F.3d 68, 81 (2d Cir 2000) (internal Cir. 2002); see Salas v. N.Y. City Dep't of Investigation, quotation marks and citations omitted). A pro se plaintiff 298 F. Supp. 3d 676, 685 (S.D.N.Y. 2018) (explaining that should have at least one chance to amend if “a liberal reading the ADA and Title VII contain “nearly identical language, of the complaint gives any indication that a valid claim might and retaliation claims under the two statutes are analyzed be stated.” Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) under the same framework”) (citing Lovejoy-Wilson v. NOCO (citation omitted). However, a court may deny even a pro se Motor Fuel, Inc., 263 F.3d 208, 222–23 (2d Cir. 2001)). plaintiff leave to amend when amendment would be futile. Retaliation under the ADEA is likewise analyzed under the Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). framework applicable to Title VII claims. See Kessler v. Westchester Cty. Dep't of Soc. Servs., 461 F.3d 199, 205– *4 Here, while unlikely, the Court cannot say that, with 06 (2d Cir. 2006) (applying Title VII retaliation standards better pleading, an amended complaint would be futile as to and burdens to ADEA). Thus, to state a claim or retaliation, any claim dismissed without prejudice. Any such amended “the plaintiff must plausibly allege that: (1) defendants complaint will replace the existing complaint and must be a discriminated—or took an adverse employment action— wholly integrated and complete pleading that does not rely against him, (2) because he has opposed any unlawful upon or incorporate by reference any pleading or document employment practice.” Vega v. Hempstead Union Free Sch. previously filed with the Court. See Shields v. Citytrust Dist., 801 F.3d 72, 90 (2d Cir. 2015) (internal quotation marks Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (“It is well omitted). established that an amended complaint ordinarily supersedes the original, and renders it of no legal effect.”) (internal The complaint alleges that after Plaintiff filed “an EEOC quotation marks and citations omitted). Any exhibits that complaint,” Diaz “may have stalked” Plaintiff. (Dkt. No. 1, Plaintiff wishes the Court to consider going forward must at 5). However, as discussed, there is no individual liability be attached to the amended complaint. This means that the under Title VII, the ADA, or the ADEA, and Plaintiff fails previous complaint and other filings will no longer be the to assert any facts as to KW Call Center Services’ alleged operative documents—everything that is essential must be conduct. Accordingly, Plaintiff's Title VII, ADA, and ADEA contained in or attached to the amended complaint. retaliation claims are dismissed. IV. CONCLUSION 4. Other Statutes For these reasons, it is hereby Plaintiff also appears to assert claims under 18 U.S.C. § ORDERED that Magistrate Judge Katz's Report- 2261(a), which is a criminal statute, and 18 U.S.C. § 1514, Recommendation (Dkt. No. 5) is ADOPTED in its entirety, which allows the government to obtain a restraining order. as set forth above; and it is further However, neither of these statutes confer a private right of action on Plaintiff. See Conn. Action Now, Inc. v. Roberts ORDERED that Plaintiff's Title VII, ADA, and ADEA Plating Co., 457 F.2d 81, 86–87 (2d Cir. 1972) (“It is a truism, claims against Defendant Michelle Diaz, and Plaintiff's and has been for many decades, that in our federal system claims under 18 U.S.C. § 2261(a) and 18 U.S.C. § 1514 matter of law; and it is further ORDERED that, if Plaintiff fails to file an amended complaint within 30 days from the date of this Order or to ORDERED that the remainder of the complaint is request an extension of time to do so, the Clerk is directed to DISMISSED WITHOUT PREJUDICE and WITH enter judgment without further order of the Court; and it is LEAVE TO AMEND pursuant to 28 U.S.C. § 1915(e)(2) further; (B)(ii) for failure to state a claim upon which relief may be granted; and it is further ORDERED that the Clerk serve a copy of this Order on Plaintiff in accordance with the Local Rules. ORDERED that any amended complaint must be filed within thirty (30) days of the date of this Order. Any amended IT IS SO ORDERED. complaint must be a complete pleading which will replace the current complaint in total; and it is further All Citations ORDERED that if Plaintiff timely files an amended Slip Copy, 2026 WL 1481648 complaint, it shall be referred to Magistrate Judge Katz for review; and it is further Footnotes 1 However, for the reasons discussed elsewhere in this Order, the Court finds dismissal with prejudice is required as a matter of law as to several of Plaintiff's claims. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2021 WL 268498 merely attached exhibits, and accordingly suffers from the Only the Westlaw citation is currently available. same defects the Court has already identified, it too must be United States District Court, E.D. Pennsylvania. dismissed. Abdul-Raheem Alonzo HUMPHREY, Plaintiff, I. FACTUAL ALLEGATIONS v. As recited in the Court's prior Memorandum, Humphrey is PENNSYLVANIA COURT OF COMMON the father of a four-year old child identified as “NH.” (ECF PLEAS OF PHILADELPHIA, et al., Defendants. No. 9 at 3.)1 He asserts that NH's mother, Defendant Ijnanya CIVIL ACTION NO. 20-CV-2335 Young, physically abuses the child. (Id.) Humphrey retained Defendants David Gutin and Nefertitti C. Jordan of the law Filed 01/27/2021 firms Astor Weiss Kaplan & Mandel LLP and Jordan Group respectively on December 3, 2019 to seek a protection from Attorneys and Law Firms abuse order in the Court of Common Pleas. (Id.) He provided a medical report to the attorneys to use as proof of the abuse. Abdul-Raheem Alonzo Humphrey, Camden, SC, pro se. (Id.) Rather than submit the report, Gutin asked the Court for a MEMORANDUM continuance. (Id.) Humphrey asserts that Young called him 36 times on December 10, 2019 to threaten his family. (Id.) RUFE, J. He reported this conduct to Gutin and to the authorities where *1 On May 15, 2020, pro se Plaintiff Abdul-Raheem Alonzo he lives in South Carolina. (Id.) On December 27, 2019, Humphrey filed a Complaint in this Court pursuant to 42 Humphrey fired his attorneys. (Id.) On January 28, 2020, the U.S.C. § 1983. Named as Defendants were the Pennsylvania attorneys moved to withdraw their appearances before the Court of Common Pleas of Philadelphia, the Honorable Common Pleas Court and Humphrey asked for a continuance Christopher Mallios, Astor Weiss Kaplan & Mandel LLP, of the matter to find new counsel, but the request was denied. David Gutin Esquire, Jordan Group, Nefertitti C. Jordan (Id.) On February 12, 2020, Humphrey was “found to be in Esquire, and Ijnanya Young. In a Memorandum and Order Contempt [of a] fugitive warrant.” (Id.) He again requested filed on May 26, 2020, the Court granted Humphrey's request a continuance of the Common Pleas proceeding, but this to proceed in forma pauperis and dismissed the Complaint request was also denied, and Young was granted temporary without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B). custody of NH on March 6, 2020 by Judge Mallios. (Id.) Humphrey was granted leave to file an amended complaint On March 26, 2020, Judge Mallios denied the request for a within thirty days if he was able to state a plausible claim over protection from abuse order. (Id.) which this Court could exercise subject matter jurisdiction or, in the alternative, to refile his claims in an appropriate *2 In his new pleading, Humphrey again asserts claims state court. (See ECF Nos. 6, 7.) When Humphrey failed to against all Defendants pursuant to 42 U.S.C. § 1983. (Id.) He file an amended complaint within the stated time, the case again asks this Court to grant him sole custody of NH until the was dismissed on July 17, 2020, with the Court repeating child reaches his eighteenth birthday. (Id. at 4.) He also seeks the provision that Humphrey could bring his claims in an money damages to pay for NH's support and therapy until his appropriate state court. (ECF No. 8.) twenty-first birthday. (Id.) On January 14, 2021, Humphrey filed a pleading labeled The only difference between Humphrey's original Complaint as a “Complaint” that the Clerk of Court docketed as an and his recent submission is that he has appended to Amended Complaint in this action. (ECF No. 9.) Although the the new document approximately 53 pages of exhibits Complaint was filed months after deadline to amend, and after constituting medical records for NH, pictures apparently the case had been closed, the Court will reopen the case in the showing evidence of abuse, and copies of documents filed in interests of justice and consider the merits of the Amended a state court protection from abuse proceeding. (Id. at 6-58.)2 II. STANDARD OF REVIEW suits against a state and its agencies in federal court. See Because the Court has granted Humphrey leave to proceed Pennhurst State Sch. And Hosp. v. Halderman, 465 U.S. 89, in forma pauperis, 28 U.S.C. § 1915(e)(2)(B)(ii) requires 99-100 (1984); A.W. v. Jersey City Public Schs., 341 F.3d the Court to dismiss the Amended Complaint if it fails to 234, 238 (3d Cir. 2003). The Court of Common Pleas, as state a claim. Whether a complaint fails to state a claim part of Pennsylvania's unified judicial system, shares in the under § 1915(e)(2)(B)(ii) is governed by the same standard Commonwealth's Eleventh Amendment immunity. See Benn applicable to motions to dismiss under Federal Rule of Civil v. First Judicial Dist. of Pa., 426 F.3d 233, 241 (3d Cir. Procedure 12(b)(6), see Tourscher v. McCullough, 184 F.3d 2005). As there is no indication Pennsylvania has waived its 236, 240 (3d Cir. 1999), which requires the Court to determine Eleventh Amendment immunity, Humphrey's claims against whether the complaint contains “sufficient factual matter, the Philadelphia Court of Common Pleas is again dismissed accepted as true, to state a claim to relief that is plausible with prejudice as barred by the Eleventh Amendment. on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted). Conclusory allegations do not suffice. Id. As Humphrey is proceeding pro se, the Court construes his B. Claims Against Judge Mallios allegations liberally. Higgs v. Att'y Gen., 655 F.3d 333, 339 The Court previously dismissed Humphrey's claims against (3d Cir. 2011). Judge Mallios because judges are entitled to absolute immunity from civil rights claims that are based on acts or omissions taken in their judicial capacity, so long as they do III. DISCUSSION not act in the complete absence of all jurisdiction. See Stump Humphrey again seeks to assert federal constitutional claims v. Sparkman, 435 U.S. 349, 355-56 (1978); Harvey v. Loftus, under 42 U.S.C. § 1983.3 That section provides in part: 505 F. App'x 87, 90 (3d Cir. 2012) (per curiam); Azubuko v. Royal, 443 F.3d 302, 303-04 (3d Cir. 2006) (per curiam). An act is taken in a judge's judicial capacity if it is “a function Every person who, under color of normally performed by a judge.” Gallas v. Supreme Ct. of Pa., any statute, ordinance, regulation, 211 F.3d 760, 768 (3d Cir. 2000). Moreover, “[g]enerally ... custom, or usage, of any State or ‘where a court has some subject matter jurisdiction, there Territory or the District of Columbia, is sufficient jurisdiction for immunity purposes.’ ” Figueroa subjects, or causes to be subjected, v. Blackburn, 208 F.3d 435, 443-44 (3d Cir. 2000) (quoting any citizen of the United States or Barnes v. Winchell, 105 F.3d 1111, 1122 (6th Cir. 1997)). other person within the jurisdiction Humphrey's claims against Judge Mallios are again based thereof to the deprivation of any rights, upon his actions in his judicial capacity in presiding over privileges, or immunities secured by the protection from abuse proceedings. Accordingly, Judge the Constitution and laws, shall be Mallios enjoys absolute immunity from suit and Humphrey's liable to the party injured in an action claims must be dismissed with prejudice under § 1915(e)(2) at law, suit in equity, or other proper (B). proceeding for redress. C. Claims Against Attorneys The Court previously dismissed Humphrey's claims against 42 U.S.C. § 1983. “To state a claim under § 1983, a plaintiff his attorneys, Astor Weiss Kaplan & Mandel LLP, David must allege the violation of a right secured by the Constitution Gutin Esquire, Jordan Group, and Nefertitti C. Jordan and laws of the United States, and must show that the alleged Esquire, because private attorneys are not “state actors” deprivation was committed by a person acting under color of subject to liability under § 1983. See Angelico v. Lehigh Valley state law.” West v. Atkins, 487 U.S. 42, 48 (1988). Hosp., Inc., 184 F.3d 268, 277 (3d Cir. 1999) (“Attorneys performing their traditional functions will not be considered A. Claims Against the Court of Common Pleas state actors solely on the basis of their position as officers of *3 The Court previously dismissed Humphrey's claims the court.”). As the new submission again attempts to state § against the Philadelphia Court of Common Pleas as barred 1983 claims against these non-state actors, the claims again suited to work of this type than are federal courts, which D. Claims Against Ijnanya Young lack the close association with state and local government The Court previously dismissed Humphrey's claims against organizations dedicated to handling issues that arise out of the mother of his child. She too was found to not be a conflicts over divorce, alimony, and child custody decrees.” state actor subject to liability under § 1983. The Court also Ankenbrandt, 504 U.S. at 704. Accordingly, for the reasons noted previously that, to the extent that Humphrey's original previously expressed, this claim must also be dismissed, Complaint could be read as an attempt to relitigate custody without prejudice to assertion in the appropriate state court. of the child, it has been well established for over 150 years that federal courts lack jurisdiction to hear cases concerning divorce, alimony, or child custody cases. Ankenbrandt v. IV. CONCLUSION Richards, 504 U.S. 689, 703 (1992) (concluding “that the *4 For the reasons stated, Humphrey's claims are dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B). Because the Court domestic relations exception, as articulated by this Court has afforded Humphrey an opportunity to amend and any since Barber [v. Barber, 62 U.S. 582 (1858)], divests the further attempt at amendment to state claims over which this federal courts of power to issue divorce, alimony, and child Court can exercise jurisdiction would appear to be futile, the custody decrees.”); see also Barber, 62 U.S. at 584 (stating dismissal of all federal law claims will be with prejudice, see “[w]e disclaim altogether any jurisdiction in the courts of the Grayson v. Mayview State Hosp., 293 F.3d 103, 112-113 (3d United States upon the subject of divorce, or for the allowance Cir. 2002). Any claims under state law are dismissed for lack of alimony”); Ex parte Burrus, 136 U.S. 586, 593-94 (1890) of subject matter jurisdiction without prejudice to their being (stating that “[t]he whole subject of the domestic relations asserted in an appropriate state court. This case will be marked of husband and wife, parent and child, belongs to the laws closed. An appropriate Order follows. of the States and not to the laws of the United States.”). Humphrey's claims against Young again appear to challenge state court proceedings that have decided child custody and All Citations visitation disputes; Plaintiff specifically seeks sole legal and physical custody, which this Court cannot grant. “As a Not Reported in Fed. Supp., 2021 WL 268498 Footnotes 1 The Court adopts the pagination supplied by the CM/ECF docketing system. 2 Because the exhibits contain information such as the name, birthdate, and medical records of a minor child, as well as other personal identifiers, the Court will order that the exhibits be placed under seal. 3 While Humphrey has not brought any claims under state law, he again mentions a criminal statute, the Violence Against Women Act, 18 U.S.C. § 2261-2262. Any claim under this Act, to the extent that Humphrey again seeks to raise a distinct claim based on a violation of that statute, is dismissed pursuant to § 1915(e) (2)(B). As the Court previously held, numerous federal courts have held that no private right of action exists under this specific statute. See, e.g., Rock v. BAE Systems, Inc., 556 F. App'x 869, 871 (11th Cir. 2014) (“Section 2261 also does not explicitly contain a private right of action....”); Hopson v. Commonwealth Atty. Office, Civ. A. No. 12-744, 2013 WL 1411234, at *4 (W.D. Ky. Apr. 8, 2013) (“There is nothing in § 2262(a) (1) that would lead to ... a conclusion [that a private right of action exists under the statute.] Violations of § 2262(a)(1) are criminal offenses. Congress specifically set forth that violations of § 2262(a)(1) are punishable by imprisonment or fines or both.... There is no indication that Congress intended to create a private cause of action under 18 U.S.C. § 2262(a)(1).”); Smith v. Daniel, Civ. A. No. 17-111, 2017 WL 1352229 at *2 (N.D. Fla. Mar. 17, 2017) (holding that the plaintiff lacked standing to bring claims under §§ 2261A and, 2262), report and recommendation adopted over objections, 2017 WL 1370734 (N.D. Fla. Apr. 5, 2017); Ortiz v. adopted, 2017 WL 11473895 (N.D. Okla. Oct. 23, 2017) (“Although there are federal criminal laws prohibiting interstate stalking and interstate violations of a state-issued protective order, see 18 U.S.C. §§ 2261A, 2262, these laws do not provide civil remedies....”). Moreover, private citizens have no authority to enforce federal criminal statutes. Diamond v. Charles, 476 U.S. 54, 64 (1986) (stating that it is well established that private citizens do not have “a judicially cognizable interest in the prosecution or nonprosecution of another.”). End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2025 WL 1982319 Donald Trump. Only the Westlaw citation is currently available. Donald Trump, Pro Se. United States Court of Appeals, Second Circuit. Present: Amalya L. Kearse, Dennis Jacobs, Raymond J. Jason William LANG, Plaintiff-Appellant, Lohier, Jr., Circuit Judges. v. Hillary R. CLINTON, et al., Defendants-Appellees. Opinion *1 Appellant, pro se, moves for leave to proceed in forma 25-126 pauperis and injunctive relief. Upon due consideration, it is hereby ORDERED that the motions are DENIED and the May 21, 2025 appeal is DISMISSED because it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, W.D.N.Y., 24-cv-19, Wolford, C.J. 325 (1989); see 28 U.S.C. § 1915(e). Attorneys and Law Firms Jason William Lang, Lockport, NY, Pro Se. All Citations Tiffany H. Lee, Assistant United States Attorney, U.S. Not Reported in Fed. Rptr., 2025 WL 1982319 Attorney, United States Attorney's Office for the Western End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2026 WL 1855058 Case below, 2025 WL 1982319. Only the Westlaw citation is currently available. Supreme Court of the United States. Opinion *1 Petition for writ of certiorari to the United States Court Jason William LANG, Petitioner, of Appeals for the Second Circuit denied. v. Hillary R. CLINTON, et al. All Citations No. 25-7273 --- S.Ct. ----, 2026 WL 1855058 (Mem) End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2023 WL 3352758 Park in Utica, New York. (Dkt. No. 1 at 5.) Plaintiff alleges Only the Westlaw citation is currently available. that when she would go to Miller Park, Utica police officers United States District Court, N.D. New York. would also be present in the park and that the police officers’ presence in the park at the same time as Plaintiff put her in Sheila ROBINSON, Plaintiff, “fear of [her] safety and well being” such that she “stopped v. going to [the] park in fear of being shot by the [U]tica Mark WILLIAMS, et al., Defendants. police.” (Id.) 6:22-CV-0982 (GTS/ML) Plaintiff alleges that, at some point in time, she called the police regarding issues she was having with third-party, Biory Signed January 12, 2023 Chavez Tinco. (Id.) Plaintiff alleges that she sought to pursue charges against Mr. Tinco and to obtain a restraining order Attorneys and Law Firms that would protect her from Mr. Tinco, but that the Utica police officers refused to arrest Mr. Tinco or assist Plaintiff in SHEILA ROBINSON, Plaintiff, Pro Se, 939 Ontario Avenue, obtaining an order of protection. (Id. at 5-6.) Niagara Falls, New York 14301. Plaintiff alleges that, at some point in time, she went to get her mail and an unnamed maintenance person “came ORDER and REPORT-RECOMMENDATION out and provoked [P]laintiff into accidentally macing,”2 MIROSLAV LOVRIC, United States Magistrate Judge the maintenance person then called the police, Plaintiff was arrested, and paid a $300 fine. (Id. at 6.) *1 The Clerk has sent a pro se complaint in the above captioned action together with (1) an application to proceed Plaintiff alleges that a building located next to her residence in forma pauperis, and (2) an application to appoint counsel, is a nuisance because it is a gathering place for drug users filed by Sheila Robinson (“Plaintiff”) to the Court for review. and dealers. (Id. at 6.) Plaintiff alleges that she sought (Dkt. Nos. 1, 2, 5.) For the reasons discussed below, I (1) grant police assistance “multiple times” to address individuals from Plaintiff's in forma pauperis application, (2) deny Plaintiff's the property next door who trespassed on to her property. motion for appointment of counsel, and (3) recommend that (Id.) However, Plaintiff alleges that the Utica police refused Plaintiff's Complaint be dismissed in its entirety (a) in part to arrest individuals that criminally trespassed and did not with leave to amend, and (b) in part without leave to amend. conduct warrant checks on the trespassers. (Id. at 6-7.) (Dkt. Nos. 1, 2, 5.) *2 Plaintiff alleges that Defendant Derek Schultz filed a false statement that Plaintiff was suffering from mental I. BACKGROUND illness. (Id. at 7.) Plaintiff alleges that Defendant Marissa Construed as liberally1 as possible, Plaintiff's Complaint Vomer filed a false statement stating that Plaintiff was alleges that she formed clothing brands and has since been rambling. (Id.) Plaintiff alleges that Defendant Reginald targeted and harassed by defendants Mark Williams, Kyle Sanders retaliated against Plaintiff by refusing to arrest third- Piersall, John De Traglia, Joseph Aiello, Brian Baye, Marissa party T. Jones and stating to Plaintiff “you wanted Utica police Vomer, K. Phillips, Benny Grullon, Derek Schultz, Reginald fired[.] [W]hy should we help you[?]” (Id.) Sanders, Brian French, Hiram Rios, Louis L. Stanton, John Does, Letitia James, Chuck Schumer, Amazon.com, Plaintiff alleges that Defendant Louis Stanton was the Jeff Bezos, Facebook.com, Mark Zuckerberg, Google.com, assigned judge to another one of her civil cases and that Sergin Brin, Larry Page, Sundar Pichai, Zazzle.com, he conspired to violate Plaintiff's right to a jury trial. (Id. Robert Beaver, Cafepress.com, Bob Marino, Fred Durham, at 8.) More specifically, Plaintiff alleges that Defendant Redbubble.com, Barry Newstead, Martin Hopskin, Utica Stanton dismissed Plaintiff's civil case against “tech-giants” New York Police Department, and City of Utica in New York via electronic notice so that Plaintiff would not receive the State (collectively “Defendants”). (See generally Dkt. No. 1.) notice in time to appeal the decision. (Id.) Attorney General's office multiple times regarding the State Attorney General's Office for failure to investigate and harassment she experienced by “one or more of the tech- enforce the laws in violation of the Fourteenth Amendment giants” and the stalking that she experienced at Miller Park by and 42 U.S.C § 1983; (7) a claim against unnamed New York the Utica police officers but that the New York State Attorney State officials for interfering with Plaintiff's right to equal General's office informed her that it does not investigate those housing in violation of the Fourteenth Amendment and 42 matters and directed Plaintiff to obtain her own attorney. (Id. U.S.C. § 1983; (8) a claim against Defendant Schumer for at 9-10.) violating Plaintiff's right to equal protection under the law pursuant to the Fourteenth Amendment and 42 U.S.C. § 1983; Plaintiff alleges that unnamed “New York State Officials” (9) a claim against Yahoo.com and Defendants Amazon.com, deprived her of “Erap arrears” by incorrectly and Facebook.com, Google.com, Zazzle.com, Cafepress.com, “intentionally posting online that [P]laintiff had not uploaded Redbubble.com, Jeff Bezos, and Mark Zuckerberg for [the] required documents.” (Id. at 10-11.) conspiracy to deprive Plaintiff equal protection under the law pursuant to the Fourteenth Amendment and 42 U.S.C. § 1983; Plaintiff alleges that she contacted Defendant Chuck Schumer and (10) a claim against “the Tech-Giant gang” for stalking, to help her “stop and collect the unauthorized apparel cyberstalking, and harming Plaintiff. (See generally Dkt. No. from [A]mazon warehouses” after Plaintiff saw that her 1.) clothing line brand was being improperly sold by Defendant Amazon.com. (Id. at 11.) Plaintiff alleges that Defendant *3 As relief, Plaintiff seeks, inter alia, $100,000,000,000 in Schumer failed to assist her because his family members are compensatory damages, punitive damages in the amount of employed by Defendant Amazon.com. (Id.) $300,000,000,000, and costs and attorney's fees. (Id.) Plaintiff alleges that third-party Yahoo.com and Defendants Amazon.com, Facebook.com, Google.com, Zazzle.com, II. PLAINTIFF'S APPLICATION TO PROCEED IN Cafepress.com, Redbubble.com, Jeff Bezos, and Mark FORMA PAUPERIS Zuckerberg, conspired to target, cyberstalk, and stalk Plaintiff “When a civil action is commenced in a federal district court, to interfere with her civil right to make online profits. (Id. the statutory filing fee, currently set at $402, must ordinarily at 11.) Plaintiff also alleges that Defendants Amazon.com, be paid. 28 U.S.C. § 1914(a). A court is authorized, however, Facebook.com, Google.com, Zazzle.com, Cafepress.com, to permit a litigant to proceed in forma pauperis status if a Redbubble.com, Jeff Bezos, and Mark Zuckerberg racially party “is unable to pay” the standard fee for commencing an targeted her because she is a Black American and they are action. 28 U.S.C. § 1915(a)(1).3 After reviewing Plaintiff's in white or of Asian descent. (Id. at 12.) forma pauperis application (Dkt. No. 2), the Court finds that Plaintiff meets this standard. Therefore, Plaintiff's application Based on these factual allegations, Plaintiff appears to assert to proceed in forma pauperis is granted.4 the following ten claims: (1) a claim against Defendant Utica Police Department for its conduct at Miller Park in violation of the Fourth Amendment and 42 U.S.C. § 1983; III. LEGAL STANDARD FOR INITIAL REVIEW OF (2) a claim against Defendant Utica Police Department THE COMPLAINT for its refusal to arrest Mr. Tinco and obtain an order of Having found that Plaintiff meets the financial criteria for protection in favor of Plaintiff against Mr. Tinco in violation commencing this action in forma pauperis, the Court must of the Fourteenth Amendment and 42 U.S.C. § 1983; (3) consider the sufficiency of the allegations set forth in the a claim against Defendant Utica Police Department for its Complaint in light of 28 U.S.C. §§ 1915(e). Section 1915(e) refusal to arrest individuals who trespassed on Plaintiff's of Title 28 of the United States Code directs that, when a residence in violation of the Fourteenth Amendment and 42 plaintiff seeks to proceed in forma pauperis, “the court shall U.S.C. § 1983; (4) a claim against Defendant Stanton for dismiss the case at any time if the court determines that—... violating Plaintiff's due process right to a jury trial pursuant (B) the action ... (i) is frivolous or malicious; (ii) fails to state a to the Fourteenth Amendment and 42 U.S.C. § 1983; (5) claim on which relief may be granted; or (iii) seeks monetary a claim against Defendant Stanton for sending a dismissal relief against a defendant who is immune from such relief.” notice electronically in violation of the First Amendment 28 U.S.C. § 1915(e)(2)(B).5 Additionally, when reviewing a complaint, a court may also 18-CV-1471, 2019 WL 981850, at *3 (N.D.N.Y. Jan. 7, look to the Federal Rules of Civil Procedure. Rule 8 of the 2019) (Peebles, M.J.) (citing Krug v. Cnty. of Rennselaer, Federal Rules of Civil Procedure provides that a pleading 559 F. Supp. 2d 223, 247 (N.D.N.Y. 2008) (McAvoy, J.); which sets forth a claim for relief shall contain, inter alia, “a Turczyn ex rel. McGregor v. City of Utica, 13-CV-1357, 2014 short and plain statement of the claim showing that the pleader WL 6685476, at *2 (N.D.N.Y. Nov. 26, 2014) (Sharpe, J.); is entitled to relief.” See Fed. R. Civ. P. 8(a)(2). The purpose of Hoisington v. Cnty. of Sullivan, 55 F. Supp. 2d 212, 214 Rule 8 “is to give fair notice of the claim being asserted so as (S.D.N.Y. 1999) (“Under New York law, a department of a to permit the adverse party the opportunity to file a responsive municipal entity is merely a subdivision of the municipality answer, prepare an adequate defense and determine whether and has no separate legal existence. Therefore, municipal the doctrine of res judicata is applicable.” Powell v. Marine departments like the Department of Social Services are not Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995) (McAvoy, amenable to suit and no claims lie directly against the C.J.) (quoting Brown v. Califano, 75 F.R.D. 497, 498 (D.D.C. Department.”)), report and recommendation adopted by 2019 1977)). WL 974824 (N.D.N.Y. Feb. 28, 2019) (Suddaby, C.J.). *4 A court should not dismiss a complaint if the plaintiff As a result, I recommend that all claims against Defendant has stated “enough facts to state a claim to relief that is Utica Police Department be dismissed for failure to state a plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. claim upon which relief may be granted. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw Moreover, to the extent that the Court is inclined—for the sake the reasonable inference that the defendant is liable for the of judicial efficiency—to review Plaintiff's claims against misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 Defendant Utica Police Department, as against Defendant (2009). While the court should construe the factual allegations City of Utica, I still recommend dismissal of Plaintiff's claims in the light most favorable to the plaintiff, “the tenet that a for failure to state a claim upon which relief may be granted. court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft, A municipality may only be named as a defendant in certain 556 U.S. at 678. “Threadbare recitals of the elements of a circumstances. Pursuant to the standard for establishing cause of action, supported by mere conclusory statements, do municipal liability laid out in Monell v. Dep't of Soc. Servs. not suffice.” Id. (citing Twombly, 550 U.S. at 555). Rule 8 of the City of New York, 436 U.S. 658 (1978), in order to set “demands more than an unadorned the-defendant-unlawfully- forth a cognizable claim for municipal liability under Section harmed-me accusation.” Id. Thus, a pleading that contains 1983, a plaintiff must plead and prove that a deprivation only allegations which “are so vague as to fail to give the of his constitutional rights “was caused by a governmental defendants adequate notice of the claims against them” is custom, policy, or usage of the municipality.” Jones v. Town subject to dismissal. Sheehy v. Brown, 335 F. App'x 102, 104 of E. Haven, 691 F.3d 72, 80 (2d Cir. 2012) (citing Monell, (2d Cir. 2009). 436 U.S. 658); see also Vippolis v. Vill. of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985) (“The plaintiff must first prove the existence of a municipal policy or custom in order to IV. ANALYSIS show that the municipality took some action that caused his In addressing the sufficiency of a plaintiff's complaint, the injuries beyond merely employing the misbehaving officer.”). court must construe his pleadings liberally. Sealed Plaintiff v. A municipality may be liable for deprivation of constitutional Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Having rights under Section 1983 for policies or customs resulting reviewed Plaintiff's Complaint with this principle in mind, I in inadequate training, supervision, or hiring when the failure recommend that all causes of action be dismissed. to train, supervise, or hire amounts to deliberate indifference to the rights of those with whom municipal employees will come into contact. See City of Canton, Ohio v. Harris, 489 A. Claims Against the Utica Police Department U.S. 378, 388-89 (1989). A plaintiff must also establish a “Although a municipality is subject to suit pursuant to section causal connection—an affirmative link—between the policy 1983, see Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 and the deprivation of his constitutional rights. Oklahoma v. (1978), a municipal police department does not have the Tuttle, 471 U.S. 808, 823 (1985) (plurality opinion). Indeed, itself deprives an individual of a constitutional right; it “may surveilling him). “[A finding of] factual frivolousness is not be held liable on a theory of respondeat superior.” Jeffes appropriate when the facts alleged rise to the level of v. Barnes, 208 F.3d 49, 56 (2d Cir. 2000). the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict *5 Critically, “a prerequisite to municipal liability under them.” Denton v. Hernandez, 504 U.S. 25, 33 (1992). The Monell is an underlying constitutional violation by a state term “frivolous” embraces “not only the inarguable legal actor.” Henry-Lee v. City of New York, 746 F. Supp. 2d conclusion, but also the fanciful factual allegation.” Neitzke 546, 567 (S.D.N.Y. 2010). As the Second Circuit has noted, v. Williams, 490 U.S. 319, 325 (1989). Plaintiff's allegations, “Monell does not provide a separate cause of action for even under a liberal reading that the courts give pro se the failure by the government to train its employees; it pleadings, easily qualify as frivolous under the standard extends liability to a municipal organization where that asserted above. See Denton, 504 U.S. at 33. organization's failure to train, or the policies or customs that it has sanctioned, led to an independent constitutional As a result, I recommend that Plaintiff's claims regarding violation.” Segal v. City of New York, 459 F.3d 207, 219 (2d Miller Park be dismissed for failure to state a claim upon Cir. 2006); see also id. (noting that once a “district court which relief may be granted and, in the alternative, for properly [finds] no underlying constitutional violation, its frivolity. decision not to address the municipal defendants’ liability under Monell [is] entirely correct”). 2. Failure to Arrest Mr. Tinco 1. Miller Park To the extent that Plaintiff's Complaint asserts a claim based on an alleged failure to file charges against Mr. Tinco or I recommend that Plaintiff's claims with respect to Miller help Plaintiff obtain an order of protection against Mr. Tinco, Park be dismissed for failure to state a claim upon which I recommend that it be dismissed. Plaintiff does not have relief may be granted. The allegation that police officers standing to compel any law enforcement agency to prosecute are merely present in a public space, such as a park, at the suspected criminal acts because there is no private right of same time as Plaintiff fails to allege that Plaintiff's rights action to enforce state or federal criminal statutes. See Linda were violated in any way. See Hickombottom v. City of R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“[A] private Chicago, 739 F. Supp. 1173, 1179 (N.D. Ill. 1990) (police citizen lacks a judicially cognizable interest in the prosecution surveillance of plaintiff's apartment did not violate the Fourth or nonprosecution of another.”); see also Walker v. CIBC Ltd., Amendment in that plaintiff had no reasonable expectation 20-CV-1337, 2021 WL 3518439, at *5 (N.D.N.Y. Apr. 13, of privacy as to his comings and goings); Phillips v. City of 2021) (Hummel, M.J.) (“It appears plaintiff is either seeking San Jose, C-94-20468, 1994 WL 706213, at *4 (N.D. Cal. the criminal prosecution of an individual or individuals or a Dec. 13, 1994) (allegations that the police officers followed law enforcement investigation, which is beyond this Court's and observed plaintiff in public areas were not sufficiently jurisdiction.”), report-recommendation adopted by 2021 WL egregious to constitute a due process violation under the 3204860 (N.D.N.Y. July 29, 2021) (McAvoy, J.); McFadden Fourteenth Amendment). v. Ortiz, 12-CV-1244, 2013 WL 1789593, at *3 (N.D.N.Y. Apr. 26, 2013) (D'Agostino, J.) (holding that “there is no Moreover, courts in this Circuit have routinely dismissed private right of action to enforce either state or federal similar claims as factually frivolous. See McNaughton criminal statutes.”). v. de Blasio, 20-CV-6991, 2020 WL 5983100, at *4-5 (S.D.N.Y. Oct. 8, 2020) (dismissing as frivolous the plaintiff's *6 As a result, I recommend that Plaintiff's claims regarding allegations including, inter alia, that the N.Y.P.D. was the failure to arrest Mr. Tinco be dismissed. enlisting parents and their children in an elaborate scheme to lure the plaintiff into committing pedophilic acts); Gamez v. U.S. Dist. Court Eastern and Southern Dist. of-Tyranny, 3. Failure to Arrest Trespassers New York, 11-CV-4068, 2011 WL 3949807, at *2 (E.D.N.Y. Sept. 6, 2011) (dismissing as factually frivolous, the plaintiff's and Report-Recommendation, I recommend that Plaintiff's claims regarding the failure to arrest alleged trespassers be C. Claims Against New York State Attorney General's dismissed for lack of standing. Office As set forth above in Part IV.A.2. of this Order and Report-Recommendation, this Court does not have authority B. Claims Against Defendant Stanton to commence its own investigation, commence criminal Plaintiff's Complaint appears to assert claims against prosecution, compel a law enforcement agency to investigate Defendant Stanton in his individual and official capacity, for suspected criminal activity, or compel a prosecutor to actions he allegedly took in his position as Senior United prosecute. Prosecutors possess discretionary authority to States District Judge of the Southern District of New York. bring criminal actions, and they are “immune from control or (Dkt. No. 1 at 8-9.) interference by citizen or court.” Conn. Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 87 (2d Cir. 1972). It is well settled that “officials acting in a judicial capacity are entitled to absolute immunity against § 1983 actions, *7 As a result, I recommend that Plaintiff's claims against and this immunity acts as a complete shield to claims the New York State Attorney General's Office be dismissed. for money damages.” Montero v. Travis, 171 F.3d 757, 760 (2d Cir. 1999); see also Mireles v. Waco, 502 U.S. 9, 9-10 (1991) (citations omitted) (“A long line of this D. Claims Against Unnamed New York State Officials Court's precedents acknowledges that, generally, a judge is I recommend that Plaintiff's claims against unnamed New immune from a suit for money damages. Although unfairness York State officials regarding the denial of her Emergency and injustice to a litigant may result on occasion, ‘it is a Rental Assistance Program (“ERAP”) housing application, be general principle of the highest importance to the proper dismissed. administration of justice that a judicial officer, in exercising authority vested in him, shall be free to act upon his own First, to the extent that those claims are asserted against convictions, without apprehension of personal consequences employees of New York State in their official capacity, they to himself.”); Mahapatra v. Comstock, 97-CV-7129, 1998 are barred by the Eleventh Amendment. “[A]s a general rule, WL 88054, at *1 (2d Cir. Feb. 26, 1998) (“[T]he district state governments may not be sued in federal court unless they court properly dismissed the claims for damages based on have waived their Eleventh Amendment immunity, or unless absolute immunity. Judges are shielded from liability for Congress has abrogated the states’ Eleventh Amendment civil damages for judicial acts performed in their judicial immunity....” Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. capacities.”); McKnight v. Middleton, 699 F. Supp. 2d 507, 2009). 523 (E.D.N.Y. 2010) (“It is well settled that judges generally have absolute immunity from suits for money damages for New York6 has not waived its Eleventh Amendment their judicial actions.”). “A judge will not be deprived of immunity to suit in federal court, and Congress did not immunity because the action he took was in error, was done abrogate the states’ immunity in enacting 42 U.S.C. § 1983. maliciously, or was in excess of his authority; rather, he will See Trotman v. Palisades Interstate Park Comm'n, 557 F.2d be subject to liability only when he has acted in the clear 35, 40 (2d Cir. 1977). The Eleventh Amendment therefore absence of all jurisdiction.” Stump v. Sparkman, 435 U.S. 349, bars Plaintiff's § 1983 claims against New York State officials 357 (1978). in their official capacity as employees of New York State from proceeding in federal court. Plaintiff's allegations regarding Defendant Stanton appear to relate to actions he took as judge, while presiding over another Second, Courts have held that there is no private cause of civil proceeding initiated by Plaintiff. (See generally Dkt. No. action for the denial of an application for federally funded 1.) The Complaint is devoid of facts plausibly suggesting emergency rental assistance program funds.7 See Wexler that Defendant Stanton took any action as an individual, and v. Dep't of Children and Families, 22-CV-1111, 2022 WL therefore also fails to allege that he acted in the clear absence 5250140, at *2 (M.D. Fla. Sept. 19, 2022) (recommending of all jurisdiction. As a result, I recommend that the claims dismissal of the plaintiffs’ claims alleging that their federal against Defendant Stanton be dismissed in their entirety based Emergency Rental Assistance Program applications were no express or implied cause of action under the CAA and Plaintiff was similarly situated to anyone or that she was the undersigned is aware of no Court ... that has found treated differently. Accordingly, I recommend that Plaintiff's otherwise”); Turner v. Hamilton Cnty. Trustee Assn., 22- Fourteenth Amendment Equal Protection claims against CV-0275, 2022 WL 1606289, at *4 (S.D. Ind. May 20, Defendant Schumer be dismissed for failure to state a claim 2022) (dismissing the plaintiff's claim that his application for upon which relief may be granted.8 federally funded Emergency Rental Assistance Program was improperly denied as fraudulent and holding that “there is Further, to the extent that Plaintiff attempts to state conspiracy no private right of action created, expressly or impliedly, by claims pursuant to 42 U.S.C. §§ 1985, 1986, I recommend Congress in the CAA or the CARES Act.”). that they be dismissed for failure to state a claim upon which relief may be granted. As a result, I recommend that Plaintiff's claims against unnamed New York State officials for denial of her ERAP “[T]o make out a violation of § 1985(3) ..., the plaintiff must application, be dismissed based on the doctrine of immunity allege and prove four elements: (1) a conspiracy; (2) for the pursuant to the Eleventh Amendment and because it fails to purpose of depriving, either directly or indirectly, any person state a claim upon which relief may be granted. or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is E. Claims Against Defendant Schumer either injured in his person or property or deprived of any The Fourteenth Amendment's Equal Protection Clause right or privilege of a citizen of the United States.” United mandates equal treatment under the law. Essential to that Brotherhood of Carpenters & Joiners of Am., Loc. 610, AFL- protection is the guarantee that similarly situated persons be CIO v. Scott, 103 S. Ct. 3352, 3356 (1983). A “conspiracy” treated equally. City of Cleburne, Tex. v. Cleburne Living Ctr., requires, for purposes of Section 1985, “a plurality of actors 473 U.S. 432, 439 (1985). “In order to establish an equal committed to a common goal.” Frooks v. Town of Cortlandt, protection violation, the plaintiffs must show that they were 997 F. Supp. 438, 456 (S.D.N.Y. 1998), aff'd, 182 F.3d 899 treated differently than other people in similar circumstances (2d Cir. 1999). and must establish that such unequal treatment was the result of intentional and purposeful discrimination.” Chaney v. In addition, a claim pursuant to Section 1985 requires that Koupash, 04-CV-0126, 2008 WL 5423419, at *20 (N.D.N.Y. a plaintiff allege “some racial or [ ] otherwise class-based Dec. 30, 2008) (Homer, M.J.) (citing Myers v. Barrett, 95- animus behind the conspirators’ action.” Palmieri v. Lynch, CV-1534, 1997 WL 151770, at *3 (N.D.N.Y. Mar. 28, 1997) 392 F.3d 73, 86 (2d Cir. 2004). The Complaint fails to allege (Pooler, J.)). In addition, a valid equal protection claim may any racial or class-based animus other than one conclusory be brought by a “class of one” “where the plaintiff alleges assertion that the “Tech-giants” racially targeted Plaintiff that she [or he] has been intentionally treated differently from because she is a Black American “and all the tech-giant others similarly situated and that there is no rational basis for defendants are of white or Asian” descent. (See generally Dkt. the difference in treatment.” Vill. of Willowbrook v. Olech, 528 No. 1.) “[C]onclusory allegations are inadequate to make out U.S. 562, 564 (2000); Neilson v. D'Angelis, 409 F.3d 100, 105 a claim under Section 1985.” Jones v. Nat'l Commc'n and (2d Cir. 2005). Surveillance Networks, 409 F. Supp. 2d 456, 472 (S.D.N.Y. 2006) (citing Salgado v. City of N.Y., 00-CV-3667, 2001 WL *8 Plaintiff fails to allege any facts plausibly suggesting 290051, at *8 (S.D.N.Y. Mar. 26, 2001); Sadler v. Brown, 793 that she was treated differently from similarly situated F. Supp. 87, 90 (S.D.N.Y. 1992)). Thus, Plaintiff does not individuals or any other individuals. Vague and conclusory sufficiently allege a conspiracy between Defendant Schumer allegations, are insufficient to plausibly suggest an equal and/or others to deprive Plaintiff of any federally protected protection violation. See De Jesus v. Sears Roebuck & Co., rights. Inc., 87 F.3d 65, 70 (2d Cir. 1996); see Byng v. Delta Recovery Servs., LLC., 13-CV-0733, 2013 WL 3897485, Likewise, Plaintiff does not allege a claim under Section at *15, n. 5 (N.D.N.Y. July 29, 2013) (D'Agostino, J.) 1986, which proscribes knowingly failing to prevent a Section (finding that Attica inmate alleged no facts in the complaint 1985 conspiracy “which such person by reasonable diligence to indicate he was similarly situated to anyone or that could have prevented,” and explicitly requires an underlying New York, 221 F.3d 329, 341 (2d Cir. 2000) (“[A] § 1986 involvement by Defendants Amazon.com, Facebook.com, claim must be predicated on a valid § 1985 claim.”). Google.com, Zazzle.com, Cafepress.com, Redbubble.com, Bezos, and Zuckerberg. (See generally Dkt. No. 1.) *9 As a result, I recommend that Plaintiff's claims against Defendant Schumer be dismissed. Moreover, to the extent that Plaintiff sought to allege a claim against Defendants Amazon.com, Facebook.com, Google.com, Zazzle.com, Cafepress.com, Redbubble.com, F. Claims Against Defendants Amazon.com, Bezos, and Zuckerberg for stalking, cyberstalking, and Facebook.com, Google.com, Zazzle.com, harming Plaintiff, there is no private cause of action for Cafepress.com, Redbubble.com, Bezos, and stalking or general “harm.” Sonnick v. Budlong, 20-CV-0410, Zuckerberg 2020 WL 2999109, at *5, 9 n.8, 11 (N.D.N.Y. June 4, A claim for relief under 42 U.S.C. § 1983 must allege 2020) (Lovic, M.J.) (citations omitted) (“[F]ederal stalking facts showing that the defendant acted under color of state is a crime pursuant to 18 U.S.C. § 2261A, and does not “statute, ordinance, regulation, custom or usage.” 42 U.S.C. provide for a private cause of action.... New York does not § 1983. Thus, to state a claim under § 1983, a plaintiff must recognize private causes of action for stalking, harassment, or allege both that: (1) a right secured by the Constitution or trespass.”), report and recommendation adopted by 2020 WL laws of the United States was violated, and (2) the right 4345004 (N.D.N.Y. July 29, 2020) (McAvoy, J.). was violated by a person acting under the color of state law, or a “state actor.” West v. Atkins, 487 U.S. 42, 48-49 *10 As a result, I recommend that Plaintiff's claims against (1988). Generally, private parties are not state actors, and Defendants Amazon.com, Facebook.com, Google.com, are not liable under § 1983. Sykes v. Bank of Am., 723 F.3d Zazzle.com, Cafepress.com, Redbubble.com, Bezos, and 399, 406 (2d Cir. 2013) (quoting Brentwood Acad. v. Tenn. Zuckerberg be dismissed for failure to state a claim upon Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001)); see which relief may be granted. also Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir. 2002) (“[T]he United States Constitution regulates only the Government, not private parties....”) (internal quotation G. Conspiracy marks and citations omitted). “Because the United States As set forth above in Part IV. E. of this Order and Constitution regulates only the Government, not private Report-Recommendation, the Complaint fails to allege facts parties, a litigant claiming that his constitutional rights have plausibly suggesting racial or class-based animus—other been violated must first establish that the challenged conduct than Plaintiff's legally insufficient, conclusory assertion that constitutes ‘state action.’ ” United States v. Int'l Bhd. of unnamed “Tech-giants” racially targeted Plaintiff because she Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 941 is a Black American “and all the tech-giant defendants are of F.2d 1292, 1295-96 (2d Cir. 1991) (citing Blum v. Yartsky, white or Asian” descent. (Dkt. No. 1 at 12.) Thus, Plaintiff 457 U.S. 991, 1002 (1982)). A private defendant may be held does not sufficiently allege a conspiracy between Defendants liable only as “a willing participant in joint activity with the and/or others to deprive her of any federally protected rights State or its agents.” Adickes v. S.H. Kress & Co., 398 U.S. pursuant to 42 U.S.C. § 1985. Moreover, because Plaintiff 144 (1970) (quoting United States v. Price, 383 U.S. 787, 794 fails to allege an underlying conspiracy pursuant to 42 U.S.C. (1966)). Claims under § 1983 can be brought against private § 1985, she likewise fails to allege a claim pursuant to 42 entities by “showing that a person acting under color of state U.S.C. § 1986, which proscribes knowingly failing to prevent law ... collaborated with a private person ... to deprive the a Section 1985 conspiracy. plaintiff of a constitutional right.” Fries v. Barns, 618 F.2d 988, 990 (2d Cir. 1980) (citing Adickes, 398 U.S. at 144). As a result, to the extent that Plaintiff alleges conspiracy claims pursuant to 42 U.S.C. §§ 1985, 1986 against any Here, the Complaint fails to allege facts plausibly suggesting Defendant, I recommend that they be dismissed. that Defendants Amazon.com, Facebook.com, Google.com, Zazzle.com, Cafepress.com, Redbubble.com, Bezos, and Zuckerberg were “state actors” or were “collaborating” with H. Claims Against Defendants Williams, Piersall, De state actors. Plaintiff's inclusion of citations to the statute—42 Traglia, Aiello, Baye, Phillips, Grullon, French, Rios, Durham, Newstead, and Hopskin the Court decline to exercise jurisdiction over those claims. “It is well settled in this Circuit that ‘personal involvement See 28 U.S.C. § 1367(c)(3) (providing that a district court of defendants in alleged constitutional deprivations is a “may decline to exercise supplemental jurisdiction over prerequisite to an award of damages under § 1983.’ ” [pendent state law claims] if ... the district court has Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting dismissed all claims over which it has original jurisdiction”); Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 1991)). In order to prevail on a section 1983 cause of action (1988) (“[I]n the usual case in which all federal-law claims against an individual, a plaintiff must show “a tangible are eliminated before trial, the balance of factors to be connection between the acts of a defendant and the injuries considered under the pendent jurisdiction doctrine—judicial suffered.” Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). economy, convenience, fairness, and comity—will point “[D]irect participation as a basis of liability in this context toward declining to exercise jurisdiction over the remaining requires intentional participation in the conduct constituting state-law claims.”); Walker v. Time Life Films, Inc., 784 F.2d a violation of the victim's rights by one who knew of the facts 44, 53 (2d Cir. 1986) (citing Kavit v. A.L. Stamm & Co., 491 rendering it illegal.” Provost v. City of Newburgh, 262 F.3d F.2d 1176, 1180 (1974)) (holding that “federal courts, absent 146, 155 (2d Cir. 2001) (internal quotation marks omitted). exceptional circumstances, should abstain from exercising pendent jurisdiction when federal claims in a case can be The caption of the Complaint lists Defendants Williams, disposed of by summary judgment”). Piersall, De Traglia, Aiello, Baye, Phillips, Grullon, French, Rios, John Does, James, Brin, Page, Pichai, Beaver, Marino, Durham, Newstead, and Hopskin but the body of the V. OPPORTUNITY TO AMEND Complaint does not contain any factual allegations regarding Generally, a court should not dismiss claims contained in a them. Thus, I recommend that Plaintiff's claims against complaint filed by a pro se litigant without granting leave to Defendants Williams, Piersall, De Traglia, Aiello, Baye, amend at least once “when a liberal reading of the complaint Phillips, Grullon, French, Rios, John Does, James, Brin, Page, gives any indication that a valid claim might be stated.” Pichai, Beaver, Marino, Durham, Newstead, and Hopskin Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991); be dismissed. See Johnson v. Gonzalez, 14-CV-0745, 2015 see also Fed. R. Civ. P. 15(a)(2) (“The court should freely WL 1179384, at *6 (N.D.N.Y. Mar. 13, 2015) (Kahn, give leave when justice so requires.”). An opportunity to J.) (dismissing the claims against a defendant where the amend is not required, however, where “the problem with [the complaint lists the defendant's “name in the caption, but plaintiff's] causes of action is substantive” such that “better fails to again name or assert allegations against him.”); pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, Serrano v. New York State Dep't of Envtl. Conservation, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding 12-CV-1592, 2013 WL 6816787, at *15 (N.D.N.Y. Dec. L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a 20, 2013) (D'Agostino, J.) (citing Jaffer v. Chemical Bank, plaintiff is unable to allege any fact sufficient to support its 93-CV-8459, 1994 WL 392260, at *3 (S.D.N.Y. July 26, claim, a complaint should be dismissed with prejudice.”). 1994) (holding that “[w]hen a complaint's caption names a Stated differently, “[w]here it appears that granting leave to defendant but the complaint does not indicate that the named amend is unlikely to be productive, ... it is not an abuse of party injured the plaintiff or violated the law, the motion discretion to deny leave to amend.” Ruffolo v. Oppenheimer to dismiss must be granted”)) (dismissing the plaintiff's & Co., 987 F.2d 129, 131 (2d Cir. 1993); accord, Brown v. claims against two defendants who were listed as parties in Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. the complaint and in the caption, but not elsewhere in the 22, 1997) (Pooler, J.).10 complaint). *12 I recommend that Plaintiff's claims against Defendant Utica Police Department be dismissed without leave to amend I. Statements of Defendants Schultz, Vomer, and because it is not an entity that is amenable to suit. Moreover, Sanders to the extent that Plaintiff's claims against Defendant Utica *11 Having found that all of Plaintiff's federal claims are Police Department are construed as against Defendant City subject to dismissal, I recommend that, to the extent Plaintiff of Utica, I recommend that they be dismissed without leave has asserted any state law claims—such as defamation to amend because (1) Plaintiff's claims regarding Miller Park cure the issue with Plaintiff's claims alleging that the Utica should note that the law in this circuit clearly provides Police Department failed to arrest Mr. Tinco and the criminal that “ ‘complaints relying on the civil rights statutes are trespassers. insufficient unless they contain some specific allegations of fact indicating a deprivation of rights, instead of a litany I recommend that Plaintiff's claims against Defendant Stanton of general conclusions that shock but have no meaning.’ be dismissed without leave to amend because he is entitled to ” Hunt v. Budd, 895 F. Supp. 35, 38 (N.D.N.Y. 1995) absolute judicial immunity. (McAvoy, J.) (quoting Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987)); accord Pourzancvakil v. Humphry, 94- In addition, a better pleading will not cure the issue with CV-1594, 1995 WL 316935, at *7 (N.D.N.Y. May 22, Plaintiff's claim against the New York Attorney General's 1995) (Pooler, J.). Therefore, in any amended complaint, Office alleging that it failed to investigate and prosecute Plaintiff must clearly set forth facts that give rise to the alleged criminal and improper conduct. As a result, to the claims, including the dates, times, and places of the alleged extent that the Complaint is construed as asserting any underlying acts, and each individual who committed each claim against the New York Attorney General's Office, I alleged wrongful act. In addition, the revised pleading should recommend that it be dismissed without leave to amend. allege facts demonstrating the specific involvement of any of the named defendants in the constitutional deprivations To the extent that Plaintiff's Complaint is construed as alleged in sufficient detail to establish that they were tangibly asserting any claims against unnamed New York State connected to those deprivations. Bass v. Jackson, 790 F.2d officials for denying her ERAP application, I recommend 260, 263 (2d Cir. 1986). Finally, Plaintiff is informed that any that they be dismissed without leave to amend because (1) such amended complaint will replace the existing Complaint, the officials in their official capacity are immune from suit and must be a wholly integrated and complete pleading that pursuant to the Eleventh Amendment, and (2) there is no does not rely upon or incorporate by reference any pleading private cause of action to pursue Plaintiff's allegations. or document previously filed with the Court. See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) Further, to the extent that Plaintiff asserted claims against (“It is well established that an amended complaint ordinarily Defendants Amazon.com, Facebook.com, Google.com, supersedes the original and renders it of no legal effect.”). Zazzle.com, Cafepress.com, Redbubble.com, Bezos, and Zuckerberg for stalking, cyber stalking, and harassment, I recommend that they be dismissed without leave to amend VI. PLAINTIFF'S MOTION TO APPOINT COUNSEL because there is no private cause of action for stalking, cyber *13 Plaintiff has also submitted a request for appointment stalking, and harassment. of counsel. (Dkt. No. 5.) This Court has serious doubts about whether Plaintiff can As an initial matter, “[a] party has no constitutionally amend to assert actionable claims pursuant to 42 U.S.C. guaranteed right to the assistance of counsel in a civil case.” §§ 1983, 1985, and 1986 against Defendants Schumer, Leftridge v. Connecticut State Trooper Officer No. 1283, 640 Amazon.com, Facebook.com, Google.com, Zazzle.com, F.3d 62, 68 (2d Cir. 2011) (citations omitted). Courts cannot Cafepress.com, Redbubble.com, Bezos, Zuckerberg, utilize a bright-line test in determining whether counsel Williams, Piersall, De Traglia, Aiello, Baye, Phillips, Grullon, should be appointed on behalf of an indigent party. Hendricks French, Rios, John Does, James, Brin, Page, Pichai, Beaver, v. Coughlin, 114 F.3d 390, 392-93 (2d Cir. 1997). Instead, a Marino, Durham, Newstead, and Hopskin, Schultz, Vomer, number of factors must be carefully considered by the court and Sanders. However, out of an abundance of caution, in ruling upon such a motion. As a threshold matter, the court I recommend that Plaintiff be permitted to amend those should ascertain whether the indigent's claims seem likely to claims against those Defendants. In addition, to the extent be of substance. A motion for appointment of counsel may that Plaintiff sought to allege any defamation claim against be properly denied if the court concludes that the plaintiff's Defendants Schultz, Vomer, and Sanders, I recommend that “chances of success are highly dubious.” Leftridge, 640 F.3d she be permitted to amend that claim too. at 69. If the court finds that the claims have substance, the court should then consider: against Defendants Schumer, Amazon.com, Facebook.com, [T]he indigent's ability to investigate Google.com, Zazzle.com, Cafepress.com, Redbubble.com, the crucial facts, whether conflicting Bezos, Zuckerberg, Williams, Piersall, De Traglia, Aiello, evidence implicating the need for Baye, Phillips, Grullon, French, Rios, John Does, James, cross-examination will be the major Brin, Page, Pichai, Beaver, Marino, Durham, Newstead, and proof presented to the fact finder, the Hopskin, Schultz, Vomer, and Sanders, and (2) a defamation indigent's ability to present the case, claim against Defendants Schultz, Vomer, and Sanders, the complexity of the legal issues and because it fails to state a claim upon which relief may be any special reason in th[e] case why granted, pursuant to 28 U.S.C. § 1915(e)(2)(B); and it is appointment of counsel would be more further respectfully likely to lead to a just determination. RECOMMENDED that the Court DISMISS WITHOUT LEAVE TO REPLEAD Plaintiff's Complaint (Dkt. No. 1) to Terminate Control Corp., 28 F.3d at 1341 (quoting Hodge v. the extent that it asserts (1) claims against Defendants Utica Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986)). This is not Police Department, City of Utica, and Stanton; (2) claims to say that all, or indeed any, of these factors are controlling in against the New York Attorney General's Office and unnamed a particular case. Rather, each case must be decided on its own New York State officials; and (3) claims of stalking, cyber facts. Velasquez v. O'Keefe, 899 F. Supp. 972, 974 (N.D.N.Y. stalking, and harassment against Defendants Amazon.com, 1995) (McAvoy, C.J.) (citing Hodge, 802 F.2d at 61). Facebook.com, Google.com, Zazzle.com, Cafepress.com, Redbubble.com, Bezos, Zuckerberg, pursuant to 28 U.S.C. § In the present matter, the Court has recommended dismissal 1915(e)(2)(B); and it is further of the action. As such, the Court cannot find that Plaintiff's claims are likely to be of substance. Plaintiff's motion (Dkt. *14 ORDERED that the Clerk of the Court shall file a copy No. 5) is therefore denied. of this order, report, and recommendation on the docket of this case and serve a copy upon the parties in accordance with ACCORDINGLY, it is the local rules.11 ORDERED that Plaintiff's application to proceed in forma NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties pauperis (Dkt. No. 2) is GRANTED only for purposes of have fourteen days within which to file written objections filing and any appeal unless the trial court certifies in to the foregoing report.12 Such objections shall be filed writing that the appeal is not taken in good faith; and it with the Clerk of the Court. FAILURE TO OBJECT is further TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b) ORDERED that Plaintiff's motion for appointment of (1) (Supp. 2013); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. counsel (Dkt. No. 5) is DENIED without prejudice to Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of refiling; and it is further respectfully Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)). RECOMMENDED that the Court DISMISS WITH LEAVE TO REPLEAD Plaintiff's Complaint (Dkt. All Citations No. 1) to the extent that it asserts (1) claims Not Reported in Fed. Supp., 2023 WL 3352758 Footnotes 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). 2 It is unclear if Plaintiff intended to state that she “accidentally menaced” the maintenance person or that she “accidentally” used mace or some form of pepper spray. 3 The language of that section is ambiguous because it suggests an intent to limit availability of in forma pauperis status to prison inmates. See 28 U.S.C. § 1915(a)(1) (authorizing the commencement of an action without prepayment of fees “by a person who submits an affidavit that includes a statement of all assets such prisoner possesses”). The courts have construed that section, however, as making in forma pauperis status available to any litigant who can meet the governing financial criteria. Hayes v. United States, 71 Fed. Cl. 366, 367 (Fed. Cl. 2006); Fridman v. City of N.Y., 195 F. Supp. 2d 534, 536 n.1 (S.D.N.Y. 2002). 4 Plaintiff is reminded that, although her application to proceed in forma pauperis has been granted, she is still required to pay fees that she may incur in this action, including copying and/or witness fees. 5 To determine whether an action is frivolous, a court must look to see whether the complaint “lacks an arguable basis in either law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). 6 “An official capacity suit against a municipal employee is a suit against the municipality itself.” Pittman v. Billings, 20-CV-0422, 2020 WL 2079440, at *9 (N.D.N.Y. Apr. 30, 2020) (Baxter, M.J.), report and recommendation adopted by 2020 WL 2574631 (N.D.N.Y. May 21, 2020) (Sharpe, J.). 7 The “Coronavirus Aid Relief and Economic Security Act (“CARES Act”), which was continued by the [Consolidated Appropriations Act of 2021] CAA and the America Rescue Plan Act, allocated funds for rental assistance.” Turner, 2022 WL 1606289, at *2. 8 The Court notes that, should this action proceed against Defendant Schumer and the United States Attorney make the requisite certification such that the United States be substituted as defendant, Plaintiff has failed to allege compliance with the administrative exhaustion requirements set forth in the Federal Tort Claims Act (FTCA). See De Masi v. Schumer, 608 F. Supp. 2d 516, 518-526 (S.D.N.Y. 2009) (replacing the United States as the allegedly liable party and proceeding as a FTCA suit where the plaintiff alleged that Senator Charles Schumer failed to respond to the plaintiff's repeated requests for assistance as one of Senator Schumer's constituents). 9 To the extent that Plaintiff attempts to allege a retaliation claim against Defendant Sanders pursuant to 42 U.S.C. § 1983 and the First Amendment, I recommend that it also be dismissed because Plaintiff fails to allege that she engaged in any protected speech. (See generally Dkt. No. 1.) Instead, Plaintiff alleges only that Defendant Sanders accused Plaintiff of “want[ing] [U]tica police fired” and asked “why should we help you[?]” after refusing to make an arrest. (Dkt. No. 1 at 7.) However, with additional factual allegations, Plaintiff may have a viable claim against Defendant Sanders. See generally Rudd v. City of Norton Shores, Michigan, 977 F.3d 503, 513-516 (6th Cir. 2020) (citing Briner v. City of Ontario, 370 F. App'x 682, 700 (6th Cir. 2010); Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999)) (holding that (1) “[t]he freedom of speech ... protects the right of an ordinary citizen to criticize public officials ... without fear of criminal or civil repercussions,” and thus, formal petitions including citizen complaints and informal requests for police assistance qualify as protected petitioning of the government, and (2) although “ ‘the right to petition the government does not guarantee a response to the petition or the right to compel government officials to act on or adopt a citizen's views[,]’ [a]nd individuals have no constitutional entitlement to police protection[,].... the ‘unconstitutional conditions’ places limits on the government's ability to deny an otherwise discretionary benefit in retaliation for a person's protected speech.... [thus the Sixth Circuit has previously held that a plaintiff] stated a plausible claim by regarding the [police's] alleged failure to properly investigate [an earlier] burglary[.]’ ”). 10 See also Carris v. First Student, Inc., 132 F. Supp. 3d 321, 340-41 n.1 (N.D.N.Y. 2015) (Suddaby, C.J.) (explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999)— that the Court should grant leave to amend “unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would be successful in stating a claim”—is likely not an accurate recitation of the governing law after Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev'd on other grounds, 682 F. App'x 30. 11 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). 12 If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C). End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2023 WL 2986825 Recommendation recommending that some of the claims in Only the Westlaw citation is currently available. Plaintiff's Complaint be sua sponte dismissed without leave United States District Court, N.D. New York. to amend, and that the remaining claims in that Complaint be sua sponte dismissed with leave to amend, and (2) Plaintiff's Sheila ROBINSON, Plaintiff, Objections to the Report-Recommendation. (Dkt. Nos. 6, 9.) v. Mark WILLIAMS, Utica NY, Police Officers 1-12; Kyle After carefully reviewing the relevant filings in this action, Piersall, Utica NY, Police Officers 1-12; John DeTraglia, the Court finds no error in the Report-Recommendation, clear Utica NY, Police Officers 1-12; Joseph Aiello, Utica or otherwise:1 Magistrate Judge Lovric employed the proper NY, Police Officers 1-12; Brian Baye, Utica NY, Police standards, accurately recited the facts, and reasonably applied Officers 1-12; Marissa Vomer, Utica NY, Police Officers the law to those facts. As a result, the Court accepts and adopts the Report-Recommendation for the reasons stated therein. To 1-12; K. Phillips, Utica NY, Police Officers 1-12; Benny those reasons, the Court adds only two points. Grullon, Utica NY, Police Officers 1-12; Derek Shultz, Utica NY, Police Officers 1-12; Reginald Sanders, Utica First, even when construed with the utmost of special NY, Police Officers 1-12; Brian French, Utica NY, liberality, Plaintiff's “Objections” fail to assert a specific Police Officers 1-12; Hiram Rios, Utica NY, Police challenge to the Report-Recommendation. (Compare Dkt. Officers 1-12; Louis L. Stanton, New York State Judge; No. 9 with Dkt. No. 6.)2 As a result, the “challenged John Does, Unknown New York State Erap Officials; portions” of the Report-Recommendation are entitled to only Letitia James, New York State Attorney General; Chuck a clear-error review. In any event, even if the Court were to Schumer, U.S. Senator for New York; Amazon.com; subject those portions of the Report-Recommendation to a Jeff Bezos, CEO of Amazon.com; Facebook.com; de novo review, the Court would find that they survive that Mark Zuckerberg, CEO of Facebook.com; Google.com; review. Sergin Brin, of Google; Larry Page, of Google; Sundar Pichai, CEO of Google; Zazzle.com; Robert Beaver, *2 Second, rather than wait for the undersigned's ruling on Magistrate Judge Lovric's Report-Recommendation, Plaintiff CEO of Zazzle.com; Cafepress.com; Bob Marino, CEO has attempted to file an Amended Complaint. (Dkt. No. 10.) of Cafepress.com; Fred Durham, of Cafepress.com; This litigation practice has complicated matters because, even Redbubble.com; Barry Newstead, of Redbubble.com; assuming that Plaintiff had an absolute right to file such an Martin Hopskin, of Redbubble.com; Utica New York Amended Complaint under Fed. R. Civ. P. 15(a)(1) despite Police Dept., and City of Utica, New York, Defendants. the fact that she had not yet served her Complaint,3 an 6:22-CV-0982 (GTS/ML) amended complaint supersedes an original complaint in all respects.4 This means that, arguably, Plaintiff's Amended Signed April 18, 2023 Complaint has partially mooted Magistrate Judge Lovric's Report-Recommendation, which analyzed Plaintiff's original Attorneys and Law Firms Complaint. SHEILA ROBINSON, Plaintiff, Pro Se, 939 Ontario Avenue, Out of a desire for judicial efficiency, the Court is tempted to Niagara Falls, New York 14301. apply the recommendations in the Report-Recommendation to Plaintiff's Amended Complaint. However, the Court is mindful of the Second Circuit's admonition that a pro se DECISION and ORDER plaintiff's request to amend her complaint when a motion to dismiss is pending should be denied only without prejudice, GLENN T. SUDDABY, United States District Judge or perhaps stayed, until she has had the benefit of the district *1 Currently before the Court, in this pro se civil rights court's ruling on the motion to dismiss.5 action filed by Sheila Robinson (“Plaintiff”) against the above-captioned individuals and entities (“Defendants”), are apply Magistrate Judge Lovric's Report-Recommendation Plaintiff's claims under 42 U.S.C. §§ 1983, 1985, and 1986 to Plaintiff's original Complaint while deeming Plaintiff's against Defendants Schumer, Amazon.com, Facebook.com, Google.com, Zazzle.com, Cafepress.com, Redbubble.com, Amended Complaint as a proposed Amended Complaint (out Bezos, Zuckerberg, Williams, Piersall, DeTraglia, Aiello, of special solicitude to Plaintiff as a pro se civil rights litigant), Baye, Phillips, Grullon, French, Rios, John Does, James, and holding that proposed Amended Complaint in abeyance Brin, Page, Pichai, Beaver, Marino, Durham, Newstead, pending confirmation from Plaintiff that it is indeed the Hopskin, Schultz, Vomer, and Sanders; and (2) Plaintiff's Amended Complaint on which she wishes to proceed. defamation claims against Defendants Schultz, Vomer, and Sanders; and it is further *3 ACCORDINGLY, it is ORDERED that Magistrate Judge Lovric's Report- ORDERED that, more specifically, within THIRTY (30) Recommendation (Dkt. No. 6) is ACCEPTED and DAYS of the date of this Decision and Order, Plaintiff shall do one of the following two things: (1) notify the Court in writing ADOPTED; and it is further that her proposed Amended Complaint (Dkt. No. 10) is indeed the Amended Complaint on which she wishes to proceed, or ORDERED that the following claims in Plaintiff's Complaint (2) file a revised Amended Complaint; and it is further (Dkt. No. 1) are DISMISSED: (1) Plaintiff's claims against Utica Police Department, the City of Utica, and Judge Stanton; (2) Plaintiff's claims against the New York State ORDERED that, upon Plaintiff's fulfillment of one of the conditions set forth in the preceding paragraph (or, in the Attorney General and unnamed New York State officials; absence of his fulfillment of either condition, after the passage and (3) Plaintiff's stalking claims, cyberstalking claims, of thirty days), Plaintiff's operative Amended Complaint shall and harassment claims against Amazon.com, Facebook.com, be referred to Magistrate Judge Lovric for review of its Google.com, Zazzle.com, Cafepress.com, Redbubble.com, pleading sufficiency pursuant to 28 U.S.C. § 1915(e) (as well Bezos, and Zuckerberg; and it is further as his management of pretrial matters). ORDERED that the remaining claims in Plaintiff's Complaint (Dkt. No. 1) shall be DISMISSED without further All Citations Order of this Court UNLESS, within THIRTY (30) DAYS of this Report-Recommendation, Plaintiff files an AMENDED Not Reported in Fed. Supp., 2023 WL 2986825 COMPLAINT that corrects the pleading defects identified Footnotes 1 When no objection is made to a report-recommendation (or when only a general objection is made to a report- recommendation), the Court subjects that report-recommendation to only a clear-error review. Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a clear-error review, “the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Id.; see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge's] report to which no specific objection is made, so long as those sections are not facially erroneous.”) (internal quotation marks omitted). 2 When a specific objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to a de novo review. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be “specific,” the objection must, with particularity, “identify [1] the portions of the proposed findings, recommendations, or report to which it has an objection and [2] the basis for the objection.” N.D.N.Y. L.R. 72.1(c); see also Mario v. P&C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) (“Although Mario was one sentence on the last page of his objections, where he stated that it was error to deny his motion on the Title VII claim ‘[f]or the reasons set forth in Plaintiff's Memorandum of Law in Support of Motion for Partial Summary Judgment.’ This bare statement, devoid of any reference to specific findings or recommendations to which he objected and why, and unsupported by legal authority, was not sufficient to preserve the Title VII claim.”). 3 Rule 15(a)(1)(A) of the Federal Rules of Civil Procedure provides that “[a] party may amend its pleading once as a matter of course within ... 21 days after serving it....” Fed. R. Civ. P. 15(a)(1)(A) (emphasis added). Here, Plaintiff never served her Complaint; thus, she is arguably not yet within the 21-day window in which she may filed an Amended Complaint as a matter of course. Compare Morris v. New York State Gaming Comm'n, 18- CV-0384, 2019 WL 2423716, at *4 (W.D.N.Y. March 14, 2019) (“Because Plaintiff never served the original Complaint, the 21-day time limit to file an amended complaint under Rule 15(a)(1)(A) never commenced.”) (emphasis added) with Henderson v. Wells Fargo Bank, NA, 13-CV-0378, 2015 WL 630438, at *2 (D. Conn. Feb. 13, 2015) (“Fed. R. Civ. P. 15(a) provides that a ‘party may amend its pleading once as a matter of course within ... 21 days after serving it.’ Because Plaintiff has not yet served Defendant with the complaint, her motion is granted although unnecessary because leave of the Court is not required.”). 4 See Int'lControls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977) (“It is well established that an amended complaint ordinarily supersedes the original, and renders it of no legal effect.”); 6 C. Wright & A. Miller, Federal Practice & Procedure § 1476, at 556-57 (2d ed. 1990) (“A pleading that has been amended under Rule 15(a) supersedes the pleading it modifies and remains in effect throughout the action unless it subsequently is modified.”); cf. N.D.N.Y. L.R. 7.1(a)(4) (“[T]he proposed amended pleading ... will supersede the pleading sought to be amended in all respects.”). 5 See Cresci v. Mohawk Valley Community College, 693 F. App'x 21, 25 (2d Cir. June 2, 2017) (“The court's criticism of Cresci for failure to submit a proposed amended complaint before learning whether, and in what respects, the court would find deficiencies was unjustified, and the court's denial of leave to replead, simultaneously with its decision that the complaint was defective, effectively deprived Cresci of a reasonable opportunity to seek leave to amend.”). End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2021 WL 3403519 with a federal regulation that proscribes abuse of office by Only the Westlaw citation is currently available. those who act or purport to act in an official capacity for an United States District Court, E.D. Pennsylvania. Indian tribe. Id. ¶¶ 9–10. Howard WEISMAN, Plaintiff, II. DISCUSSION v. Although Defendants recently filed a motion to dismiss, see Paul BAUR, Wyomissing Borough Mot. 7–14, ECF No 13-2, we are “obliged to address issues Police Detective, et al., Defendants. of subject-matter jurisdiction sua sponte.” Minford v. Berks Civil No. 5:20-cv-06100-JMG Cnty. (Inc.), No. 14-mc-224, 2014 WL 4858112, at *1 (E.D. Pa. Sept. 29, 2014) (citing Trent Realty Assocs. v. First Fed. Filed 08/04/2021 Sav. & Loan Ass'n of Phila., 657 F.2d 29, 36 (3d Cir. 1981)); see also Grp. Against Smog & Pollution, Inc. v. Shenango Attorneys and Law Firms Inc., 810 F.3d 116, 122 n.6 (3d Cir. 2016) (“[A] court may raise jurisdictional issues sua sponte.”). If we lack subject Howard Weisman, Reading, PA, Pro Se. matter jurisdiction, we must dismiss the action. FED. R. CIV. P. 12(h)(3); see also Hartig Drug Co. Inc. v. Senju Pharm. Co. Ltd., 836 F.3d 261, 267 (3d Cir. 2016) (“[F]ederal MEMORANDUM OPINION courts have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a GALLAGHER, United States District Court Judge challenge from any party.” (internal quotation marks and citation omitted)). *1 Plaintiff Howard Weisman, proceeding pro se, raises claims against seven defendants who purportedly colluded “Federal district courts have subject matter jurisdiction to commit “violations of professional conduct, ethics, over civil actions that arise (1) under the Constitution, misdemeanors & felonies.” Am. Compl. ¶ 23, ECF No. 11.1 laws or treaties of the United States (i.e., federal question For the reasons set forth below, we will order Plaintiff to show jurisdiction), or (2) between citizens of different states where cause why the case should not be dismissed for lack of subject the matter in controversy exceeds $75,000 (i.e., diversity matter jurisdiction. jurisdiction).” City of Newark v. Lawson, 346 F. App'x 761, 763 (3d Cir. 2009) (citing 28 U.S.C. §§ 1331, 1332). Plaintiff pleads that he is a Pennsylvania citizen. Am. Compl. ¶ 1. The I. ALLEGATIONS Borough of Wyomissing is not a citizen of a different state, Plaintiff brings claims against Wyomissing Borough Police so diversity jurisdiction does not exist here. See Prater v. Am. Detective Paul C. Baur, the Borough of Wyomissing, three Heritage Fed. Credit Union, 351 F. Supp. 3d 912, 918 (E.D. employees of a Wyomissing diner—George Zeppos, Eleny Pa. 2019) (“Diversity jurisdiction requires complete diversity, Zeppos, and Desiree Dahms-Gehr—and the employees’ which in turn requires that no plaintiff be a citizen of the same counsel (collectively, “Defendants”). See id. ¶¶ 2–6. The state as any defendant.” (internal quotation marks and citation case arises from “an un-related employment dispute” between omitted)). Plaintiff and the diner employees. Id. ¶ 2. *2 We therefore turn to federal question jurisdiction. See Defendants allegedly conspired to intimidate Plaintiff instead 28 U.S.C. § 1331 (“The district courts shall have original of settling the dispute. Id. ¶¶ 3, 6–8. To that end, Detective jurisdiction of all civil actions arising under the Constitution, Baur personally delivered a letter to Plaintiff that cautioned laws, or treaties of the United States.”). “For a claim to arise him not to “step foot on any of the properties owned or under the Constitution, laws or treaties of the United States, managed by Mr. and Mrs. Zeppos and to have no contact a right or immunity created by the Constitution or laws of the with them or their families or employees.” Am. Compl. Ex. United States must be an essential element of the plaintiff's A; Am. Compl. ¶ 14. Plaintiff alleges that this “message claim.” In re Orthopedic Bone Screw Prods. Liab. Litig., 939 of intimidation” prevented him “from asserting his rights to F. Supp. 398, 399 (E.D. Pa. 1996) (citing Phillips Petroleum pursue legal remedy & free speech.” Am. Compl. ¶¶ 6, 23. In the vindication of a right under state law must turn upon claims thereunder must look to other authority to obtain jurisdiction”). the construction of that federal law.” Id. (citing Merrell Dow Pharms., Inc. v. Thompson, 478 U.S. 804, 808 (1986)). Again, the problem here is that the cited federal regulation and criminal statutes do not provide private causes of action, Here, Plaintiff does not raise any claims that would confer and Section 1983 “does not in and of itself create substantive federal question jurisdiction. All the criminal statutes cited rights.” Digianvittorio v. D'Antonio, No. 96-6781, 1997 WL by Plaintiff “do not provide, explicitly or implicitly, private 13681, at *4 (E.D. Pa. Jan. 13, 1997). Alleged violations of civil causes of action.”2 Jung v. Bank of Am., N.A., No. these criminal and regulatory authorities, therefore, do not 3:16-cv-00704, 2016 WL 5929273, at *3 (M.D. Pa. Aug. 2, provide a basis on which we can exercise subject matter 2016) (explaining that 18 U.S.C. §§ 241–242 and 18 U.S.C. jurisdiction, even under a Section 1983 framework. See, § 371 do not provide private civil causes of action); Nayak e.g., Greene v. Sch. Dist. of Phila., No. 17-5444, 2019 WL v. Voith Turbo, Inc., No. 1:14-cv-01053, 2015 WL 1605576, 12117147, at *1 n.1 (E.D. Pa. Mar. 25, 2019) (dismissing at *19 (M.D. Pa. Apr. 9, 2015) (same as to 18 U.S.C. § Section 1983 action for lack of subject matter jurisdiction). 201); Humphrey v. Pa. Ct. of Common Pleas of Phila., No. 20-cv-2335, 2021 WL 268498, at *2 n.3 (E.D. Pa. Jan. 27, 2021) (same as to 18 U.S.C. § 2261A). Neither does the cited III. CONCLUSION regulation.3 See Taverna v. Palmer Twp., No. 5:20-cv-0812- *3 For the foregoing reasons, it appears that we lack subject JDW, 2020 WL 5554387, at *4 (E.D. Pa. Sept. 16, 2020) matter jurisdiction over this action. That being said, “when (describing 25 C.F.R. § 11.448 as a regulation “that do[es] not addressing the issue of subject-matter jurisdiction sua sponte, allow private individuals to bring suit”). courts should ordinarily give the plaintiff ‘notice and an opportunity to respond.’ ” Minford, 2014 WL 4858112, at *6 Construing the First Amended Complaint liberally as (quoting Schneller ex rel. Schneller v. Fox Subacute at Clara one invoking 42 U.S.C. § 1983—indeed, Plaintiff makes Burke, 317 F. App'x 135, 138 (3d Cir. 2008)). Accordingly, reference to a violation of his rights—fares no better. See we will afford Plaintiff twenty-one (21) days to file a response Draper v. Darby Twp. Police Dep't, 777 F. Supp. 2d 850, explaining how we have subject matter jurisdiction over this 856 (E.D. Pa. 2011) (“[T]his court is bound to give a action. An appropriate order follows. liberal construction to pro se pleadings.”). This is because Section 1983 “is not a jurisdictional statute; it only fashions All Citations a remedy.” Gonzalez v. Young, 560 F.2d 160, 164 (3d Cir. 1977); see also 6 FED. PROC., L. ED. § 11:287 Not Reported in Fed. Supp., 2021 WL 3403519 (explaining that Section 1983 “only fashions a remedy Footnotes 1 Plaintiff attached a First Amended Complaint to his proof of service. See ECF No. 11. We will treat the First Amended Complaint as the operative pleading. In any event, both the original and the amended complaint suffer the same jurisdictional defects. 2 The First Amended Complaint cites the following federal criminal statutes: 18 U.S.C. § 201 (bribery of public officials and witnesses), 18 U.S.C. § 241 (conspiracy against rights), 18 U.S.C. § 242 (deprivation of rights under color of law), 18 U.S.C. § 371 (conspiracy to commit offense or to defraud United States), and 18 U.S.C. § 2261A (stalking). 3 The First Amended Complaint cites 25 C.F.R. § 11.448. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.