Opinion
3:24-CV-0037 (DNH/ML)
06-11-2024
JAMIL ABDUL MUHAMMAD, Plaintiff, v. MICHAEL L. BREEN, Town Justice; SCHOHARIE TOWN COURT; R. GILMAN, New York State Police Trooper; NEW YORK STATE POLICE DEP'T; and MRS. KENNEDY, Court Clerk, Defendants.
JAMIL ABDUL MUHAMMAD Plaintiff, Pro Se.
JAMIL ABDUL MUHAMMAD Plaintiff, Pro Se.
ORDER AND REPORT-RECOMMENDATION
MIROSLAV LOVRIC, UNITED STATES MAGISTRATE JUDGE.
The Clerk has sent this pro se Complaint (Dkt. No. 1) together with an amended application to proceed in forma pauperis (“IFP”) (Dkt. No. 7) filed by Jamil Abdul Muhammad (“Plaintiff”) to the Court for review. For the reasons discussed below, I (1) grant Plaintiff's amended IFP application (Dkt. No. 7), and (2) recommend that Plaintiff's Complaint (Dkt. No. 1) be dismissed (1) in part with leave to amend, and (2) in part without leave to amend.
I. BACKGROUND
Liberally construed, Plaintiff's Complaint asserts that his rights were violated by Defendants Michael L. Breen, Schoharie Town Court, R. Gilman, New York State Police Department (“Defendant NYSP”), and Mrs. Kennedy (collectively “Defendants”), who were involved in a traffic infraction charge that was issued to Plaintiff. (See generally Dkt. No. 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)).
The Complaint alleges that on February 17, 2021, Plaintiff was driving on the highway when he was pulled over by Defendant Gilman, who accused Plaintiff of speeding. (Dkt. No. 1 at 6.) Plaintiff alleges that Defendant Gilman made a comment during the traffic stop that “when you hunt[,] you hunt the biggest catch.” (Id.)
The Complaint alleges that Plaintiff appeared before Defendant Breen and informed him that he wanted a trial on the traffic ticket. (Dkt. No. 1 at 6.) The Complaint alleges that on December 27, 2023, Plaintiff attended the traffic ticket trial and Defendant Gilman acted as both a witness and the prosecutor. (Id.)
The Complaint alleges that during the trial, Plaintiff questioned Defendant Gilman about his hunting comment during the traffic stop and Defendant Gilman refused to answer the question. (Dkt. No. 1 at 7.) The Complaint alleges that Defendant Gilman denied being racist and failed to produce body camera footage to Plaintiff. (Id.) The Complaint alleges that Plaintiff moved to dismiss the case for failure to produce Rosario material and Defendant Breen denied Plaintiff's motion. (Id.) Plaintiff alleges that Defendant Gilman admitted, while on the witness stand, that other vehicles were “traveling in the front[,] along side, [and] in the back of [Plaintiff's] vehicle.” (Id.) The Complaint alleges that Plaintiff argued the defense of justification but that Defendant Breen denied Plaintiff's second motion seeking dismissal of the charges. (Id.)
The Complaint alleges that Plaintiff informed Defendant Breen that African Americans are pulled over more often than white drivers and again accused Defendant Gilman of using “racist tactics” against Plaintiff. (Dkt. No. 1 at 7.)
The Complaint alleges that at the conclusion of the trial, Defendant Gilman stated he remembered what he said to Plaintiff during the traffic stop and again repeated that “as a skilled deer hunter[,] I hunt the biggest catch.” (Dkt. No. 1 at 8.)
The Complaint alleges that Defendant Breen found Plaintiff guilty of the offense-which resulted in four points attaching to Plaintiff's driver's license-and imposed a fine of $193.00. (Dkt. No.1 at 8.) The Complaint alleges that Plaintiff requested a receipt of the penalty and was provided a document by Defendants Breen and Kennedy that stated “The court has accepted your guilty plea for the charges listed above.” (Id.) The Complaint alleges that Defendant Breen “fraudulently ordered [Defendant Kennedy] to forge an illegal disposition of a court filing . . . [as] having plead[ed] guilty.” (Id.)
Based on these factual allegations, the Complaint appears to assert the following four causes of action: (1) a claim that Defendants violated Plaintiff's right to equal protection of the law in violation of the Fourteenth Amendment and 42 U.S.C. § 1983; (2) a claim that Defendants violated Plaintiff's right to due process pursuant to the Fourth Amendment and 42 U.S.C. § 1983; (3) a claim that Plaintiff was discriminated against in violation of the Americans with Disabilities Act (“ADA”); and (4) a claim that Defendants violated N.Y. Penal Law § 195.00. (See generally Dkt. No. 1.) In addition, the Complaint mentions the Fifth, Seventh, Eighth, and Ninth Amendments, Plaintiff's “right to travel,” Plaintiff's right to life, liberty, and the pursuit of happiness, and Title VI of the Civil Rights Act of 1964 as having been violated by Defendants. (Id.)
As relief, Plaintiff seeks $100,000,000.00 in damages, a direction that “Internal Affairs” conduct a “full investigation” of Defendants, disbarment of Defendant Breen, and that the fine and surcharge of $193.00 and four points on Plaintiff's driver's license be waived. (Dkt. No. 1 at 8-9.)
On January 19, 2024, Plaintiff filed a “Supplement” to the Complaint, which appears to be the first page of the form complaint for a civil case and contains no additional information or allegations. (Dkt. No. 4.)
Pursuant to Fed. R. Civ. P 15(d) “[o]n motion and reasonable notice, the court may . . . permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented.” Plaintiff failed to file a motion to supplement. In addition, the “Supplement” filed by Plaintiff does not relate to events that occurred after the Complaint was filed on January 9, 2024.
On February 6, 2024, Plaintiff filed another “Supplement” to the Complaint, which appears to be a page from one of the District's form complaints. (Dkt. No. 5.) This Supplement identifies, among other things, 18 U.S.C. § 241 and the “No-FEAR Act” as bases for relief. (Id.)
See, supra, note 2.
Notification and Federal Employee Antidiscrimination and Retaliation Act “(No Fear Act”), 5 U.S.C. § 2301 et seq.
On March 15, 2024, Plaintiff filed another “Supplement” to the Complaint. (Dkt. No. 8.) This “Supplement” is difficult to decipher and largely contains jargon. (Id.)
See, supra, note 2.
Plaintiff also filed an amended application to proceed IFP. (Dkt. No. 7.)
II. PLAINTIFF'S 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). After reviewing Plaintiff's amended IFP application (Dkt. No. 7), the Court finds that Plaintiff meets this standard. Therefore, Plaintiff's amended application to proceed IFP is granted. (Id.)
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).
Plaintiff is reminded that, although his IFP application has been granted, he is still required to pay fees that he may incur in this action, including copying and/or witness fees.
III. LEGAL STANDARD FOR INITIAL REVIEW OF 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 determining whether an action is frivolous, the court must consider whether the complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Dismissal of frivolous actions is appropriate to prevent abuses of court process as well as to discourage the waste of judicial resources. Neitzke, 490 U.S. at 327; Harkins v. Eldridge, 505 F.2d 802, 804 (8th Cir. 1974); see Fitzgerald v. First East Seventh Street Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000) (a district court “may dismiss a frivolous complaint sua sponte even when the plaintiff has paid the required filing fee[.]”); see also Pflaum v. Town of Stuyvesant, Columbia Cnty., N.Y., 11-CV-0335, 2016 WL 865296, at *1, n.2 (N.D.N.Y. Mar. 2, 2016) (Suddaby, C.J.) (finding that the Court had the power to address and dismiss additional theories of the plaintiff's retaliation claim sua sponte because those theories were so lacking in arguable merit as to be frivolous).
In order to state a claim upon which relief can be granted, a complaint must contain, inter alia, “a short and plain statement of the claim 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).
“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 his 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 the Complaint be dismissed in its entirety.
A. Claims Seeking Criminal Charges
Plaintiff's claims pursuant to 18 U.S.C. § 241 and N.Y. Penal Law § 195.00 cannot proceed.
There is no private right of action to enforce state or federal criminal statutes. See generally Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“[A] private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.”); see also Walker v. CIBC Ltd., 20-CV-1337, 2021 WL 3518439, at *5 (N.D.N.Y. Apr. 13, 2021) (Hummel, M.J.) (“It appears plaintiff is either seeking the criminal prosecution of an individual or individuals or a law enforcement investigation, which is beyond this Court's jurisdiction.”), reportrecommendation adopted by 2021 WL 3204860 (N.D.N.Y. July 29, 2021) (McAvoy, J.); McFadden 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 private right of action to enforce either state or federal criminal statutes.”).
As a result, I recommend dismissal of Plaintiff's claims that are premised on alleged violations of federal or state criminal laws. See Polinski v. Oneida Cnty. Sheriff, 23-CV-0316, 2023 WL 2988753, *4 (N.D.N.Y. Apr. 18, 2023) (Lovric, M.J.) (citing inter alia, Hall v. Sampson, 21-CV-4839, 2022 WL 2068248, at *2 n.2 (E.D. Pa. June 8, 2022) (holding that the plaintiff cannot bring criminal charges against the defendants through a private lawsuit and that claims pursuant to 18 U.S.C. § 241 do not give rise to a civil cause of action); Walthour v. Herron, 10-01495, 2010 WL 1877704, at *2 (E.D. Pa. May 6, 2010) (recognizing no private right of action under 18 U.S.C. § 241)) (recommending dismissal of the plaintiff's claims pursuant to the New York State Penal Law and 18 U.S.C. § 241), report and recommendation adopted by, 2023 WL 3344060 (N.D.N.Y. May 10, 2023) (Hurd, J.), appeal dismissed by 2023 WL 8357375 (2d Cir. Oct. 12, 2023).
B. Claims Pursuant to the ADA
The ADA “forbids discrimination against persons with disabilities in three major areas of public life: employment, which is covered by Title I of the statute; public services, programs, and activities, which are the subject of Title II; and public accommodations, which are covered by Title III.” Tennessee v. Lane, 541 U.S. 509, 516-17 (2004). In addition, “Title V of the ADA, sometimes referred to as the ‘retaliation provision,'” prohibits retaliation against individuals “engaged in activity protected by the ADA.” Griffiths v. Saint Josephs Hosp., 22-CV-0199, 2022 WL 1271533, at *3 n.5 (N.D.N.Y. Apr. 5, 2022) (Dancks, M.J.) (citing Chiesa v. New York State Dep't of Labor, 638 F.Supp.2d 316, 323 (N.D.N.Y. 2009) (Hurd, J.)), report and recommendation adopted, 2022 WL 1265761 (N.D.N.Y. Apr. 28, 2022) (Hurd, J.).
“[T]here is no individual liability under the ADA.” Gomez v. N.Y.C. Police Dep't, 191 F.Supp.3d 293, 302-03 (S.D.N.Y. 2016). As a result, I recommend that Plaintiff's ADA claim against Defendants Breen, Gilman, and Kennedy, be dismissed with prejudice.
With respect to Plaintiff's ADA claim against Defendants Schoharie Town Court and NYSP, I recommend that it be dismissed for failure to state a claim upon which relief may be granted.
Based on the facts alleged, Plaintiff could not proceed with a claim under Title I of the ADA, which addresses employment discrimination, because he has not alleged that he was employed by Defendants. 42 U.S.C. § 12117; see Mary Jo C. v. New York State and Local Retirement Sys., 707 F.3d 144, 169 (2d Cir. 2013) (“Title I of the ADA expressly deals with th[e] subject of employment discrimination ....”) (citation and internal quotation marks omitted). Title III of the ADA is “not applicable to public entities” and thus, is inapplicable here where Defendants NYSP and Schoharie Town Court are public entities. Morales v. New York, 22 F.Supp.3d 256, 266-67 (S.D.N.Y. 2014) (citing cases). Moreover, Title IV of the ADA does not appear to be applicable to Plaintiff's claims because Title IV prohibits disability discrimination in telecommunications. See Genco v. Sargent & Collins LLP, No. 18-CV-0107, 2018 WL 3827742, at *3, n.5 (W.D.N.Y. June 4, 2018). Lastly, Title V of the ADA, sometimes referred to as the “retaliation provision,” also does not appear applicable because Plaintiff does not allege that he engaged in activity protected by the ADA, that Defendants were aware of that activity, or any causal connection between the allegedly adverse actions that Defendants took against him and the protected activity. See Chiesa v. New York State Dep't of Labor, 638 F.Supp.2d 316, 323 (N.D.N.Y. 2009) (Hurd, J.).
To establish a prima facie violation under Title II of the ADA . . ., a plaintiff must show: “that 1) he is a qualified individual with a disability; 2) [defendants are] entit[ies] subject to the acts; and 3) he was denied the opportunity to participate in or benefit from [defendants'] services, programs, or activities or [defendants] otherwise discriminated against him by reason of his disability.”Rivera v. Quiros, 23-CV-0227, 2024 WL 363193, at *6 (D. Conn. Jan. 31, 2024) (quoting Wright v. New York State Dep't of Corr., 831 F.3d 64, 72 (2d Cir. 2016)). There are “three available theories” of discrimination that can be used to establish the third prong of an ADA claim: “(1) intentional discrimination (disparate treatment); (2) disparate impact; and (3) failure to make a reasonable accommodation.” Fulton v. Goord, 591 F.3d 37, 43 (2d Cir. 2009).
Assuming, without deciding, that Plaintiff adequately alleged that he is a qualified individual with a disability and Defendants Schoharie Town Court and NYSP are entities subject to the acts, Plaintiff has failed to sufficiently plead that Defendants “denied [him] the opportunity to participate in or benefit from public services, programs, or activities, or has otherwise discriminated against him, by reason of his disability rather than a legitimate nondiscriminatory reason.” Tsuma v. Costello, 22-CV-0067, 2022 WL 1036819, at *8 (D. Conn. Apr. 6, 2022). More specifically, Plaintiff has not alleged facts plausibly suggesting that Defendants Schoharie Town Court and NYSP discriminated against him on the basis of his disability. See Franks v. Eckert, 18-CV-0589, 2020 WL 4194137, at *4 (W.D.N.Y. July 21, 2020) (“Although [the p]laintiff has alleged he was denied some of his requested reasonable accommodations, there are no facts in the Amended Complaint to suggest that [the d]efendants refused to allow [the p]laintiff to participate in any program or activity because of his disability”); see also Rosado v. Herard, 12-CV-8943, 2014 WL 1303513, at *6 (S.D.N.Y. Mar. 25, 2014) (dismissing ADA claims where the plaintiff failed to “plead[ ] facts demonstrating that he was denied access to therapeutic group sessions because of a disability”). Instead, the Complaint asserts that Plaintiff informed Defendant Breen he is a recipient of “Medical S.S.I. Disability” and Defendant Breen granted Plaintiff over one month to pay the imposed fine. (Dkt. No. 1 at 8.) The Complaint fails to allege that he was mistreated because of his physical disabilities. See Moran v. Deamelia, 17-CV-0422, 2017 WL 2805160, at *3 (N.D.N.Y. Apr. 20, 2017) (Hummel, M.J.) (“Although [the] defendants may have been aware of [the] plaintiff's alleged disabilities because his underlying discrimination complaint against his former employer filed with the NYSDHR appears to have been based, in part, on his disabilities, he offers not even a scintilla of proof that the alleged misconduct was ‘motivated' by his major depressive disorder and ADHD.”), report and recommendation adopted, 17-CV-0422, 2017 WL 2804941 (N.D.N.Y. June 28, 2017) (McAvoy, J.). Indeed, there are no facts to suggest that Defendants were even aware of what Plaintiff's disability was. See, e.g., Costabile v. New York Dist. Council of Carpenters, 17-CV-8488, 2018 WL 4300527, at *5 (S.D.N.Y. Sept. 10, 2018) (dismissing the plaintiff's discrimination claim under the ADA because he failed to allege that the defendants were aware of his disability, and, thus, “fail[ed] to plead even a barebones claim of disability discrimination”). Moreover, Plaintiff does not identify what public services, programs, or activities he was denied the opportunity to participate in or benefit from. See Cordero v. Semple, 696 Fed.Appx. 44, 45 (2d Cir. 2017) (summary order) (affirming the dismissal of an ADA claim because the plaintiff “did not allege that his conditions prevented him from participating in any programs or activities”). It is, therefore, recommended that Plaintiff's ADA claim against Defendants Schoharie Town Court and NYSP be dismissed for failure to state a claim upon which relief may be granted.
C. Claims Pursuant to 42 U.S.C. § 1983
For the reasons set forth below, I recommend that Plaintiff's claims pursuant to 42 U.S.C. § 1983 be dismissed.
1. Claims Against Defendant Breen
Judges are absolutely immune from suit for claims seeking damages for any actions taken within the scope of their judicial responsibilities. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991). Generally, “acts arising out of, or related to, individual cases before [a] judge are considered judicial in nature.” Bliven v. Hunt, 579 F.3d 204, 210 (2d Cir. 2009). “[E]ven allegations of bad faith or malice cannot overcome judicial immunity.” Bliven, 579 F.3d at 209. Judicial immunity does not apply when a judge takes action outside his or her judicial capacity, or when a judge takes action that, although judicial in nature, is taken “in the complete absence of all jurisdiction.” Mireles 502 U.S. at 11-12; see also Bliven, 579 F.3d at 209-10 (describing actions that are judicial in nature). However, “the scope of [a] judge's jurisdiction must be construed broadly where the issue is the immunity of the judge.” Stump v. Sparkman, 435 U.S. 349, 356 (1978).
Plaintiff asserts claims that appear to arise from the efforts of Defendant Breen in his capacity as a judge in Schoharie Town Court. (Dkt. No. 1 at 2.) Defendant Breen is therefore immune from suit under the doctrine of judicial immunity. As a result, I recommend that Plaintiff's claims against Defendant Breen in his individual capacity be dismissed based on the doctrine of judicial immunity.
Moreover, I recommend that Plaintiff's claims against Defendant Breen in his official capacity be dismissed pursuant to the Eleventh Amendment. See Sundwall v. Leuba, 28 Fed.Appx. 11, 12 (2d Cir. 2001) (citing K & A Radiologic Tech. Servs., Inc. v. Comm'r of the Dep't of Health, 189 F.3d 273, 278 (2d Cir. 1999)) (holding that “state officers, if sued in their official capacities, are immunized from suit by private citizens under the Eleventh Amendment.”); King v. New York State, 23-CV-3421, 2023 WL 5625440, at *4 (E.D.N.Y. Aug. 31, 2023) (citing Thomas v. Martin-Gibbons, 857 Fed.Appx. 36, 37 (2d Cir. 2021) (affirming dismissal of pro se Section 1983 claims against the State of New York and a state court judge in his official capacity based on Eleventh Amendment immunity)) (“Eleventh Amendment immunity extends to state officials acting in their official capacities, including state court judges.”); Aron v. Becker, 48 F.Supp.3d 347, 366-67 (N.D.N.Y. 2014) (McAvoy, J.) (dismissing the plaintiff's claims against a state court judge in his official capacity based on the doctrine of Eleventh Amendment immunity).
2. Claims Against Defendant Schoharie Town Court
New York State is immune from suits pursuant to 42 U.S.C. § 1983 seeking either legal or equitable relief, under the Eleventh Amendment. Papasan v. Allain, 478 U.S. 265, 276 (1986); Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98-100 (1984); see Ognibene v. Niagara Cnty. Sheriff's Dep't, 03-CV-0678, 2003 WL 24243989, at *3 (W.D.N.Y. Dec. 1, 2003) (“To the extent the plaintiff names various state courts as defendants and seeks either legal or equitable relief against them under § 1983, they are immune from such suit under the Eleventh Amendment.”). As an agency or arm of the State of New York, Defendant Schoharie Town Court is immune from suit under the Eleventh Amendment. See Kentucky v. Graham, 473 U.S. 159, 166 (1985); Bonilla v. Connerton, 15-CV-1276, 2016 WL 2765287, at *4 (N.D.N.Y. Apr. 14, 2016) (Peebles, M.J.) (recommending dismissal of the claims to the extent that they seek monetary damages against the “Binghamton City Court” as barred by the Eleventh Amendment), report and recommendation adopted by, 2016 WL 2760373 (N.D.N.Y. May 12, 2016) (Kahn, J.); see also Mercado v. Town of Goshen, 20-CV-5399, 2020 WL 5210949, at *3 (S.D.N.Y. Aug. 28, 2020) (“Plaintiff sues the ‘Orange County Court,' which is part of the New York State Unified Court System. The Court therefore dismisses Plaintiff's § 1983 claims against this Defendant under the doctrine of Eleventh Amendment immunity and because these claims are frivolous.”); Curto v. Palisades Collection, LLC, 07-CV-529S, 2008 WL 11357852, at *4 (W.D.N.Y. Mar. 10, 2008) (dismissing the plaintiff's claims against the “New York State Unified Court System, 8th Judicial District Buffalo City Court” as barred by the Eleventh Amendment); Saint-Fleur v. City of New York, 99-CV-10433, 2000 WL 280328, *2 (S.D.N.Y., Mar. 14, 2000) (collecting cases) (“State courts, as arms of the State, are entitled to Eleventh Amendment immunity from suit in federal court.”); Fields v. Walthers, 94-CV-1659, 1997 WL 204308 at *2 (N.D.N.Y. April 5, 1997) (Pooler, J.) (“For Eleventh Amendment purposes, governmental entities of the state that are considered ‘arms of the state' receive Eleventh Amendment immunity.”).
3. Claims Against Defendant Gilman
To the extent that the Complaint is construed against Defendant Gilman in his official capacity, I recommend that it be dismissed based on the doctrine of immunity set forth in the Eleventh Amendment. A claim against Defendant Gilman in his official capacity is essential a claim against Defendant NYSP. See Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.”); Reynolds v. Giuliani, 506 F.3d 183, 191 (2d Cir. 2007)(“An official capacity suit against a public servant is treated as one against the governmental entity itself.”). For the reasons set forth below in Part IV.D.4., I find that Defendant Gilman, in his official capacity, is immune from a suit for damages pursuant to 42 U.S.C. § 1983, and thus, recommend dismissal.
To the extent that the Complaint is construed against Defendant Gilman in his individual capacity, I recommend that it be dismissed.
a. Equal Protection
Plaintiff alleges that Defendant Gilman violated his Fourteenth Amendment right to equal protection. A successful equal protection claim requires a plaintiff to “allege facts showing that the plaintiff was treated differently from similarly situated individuals and that the reason for the different treatment was based on ‘impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.'” Morgan v. Semple, 16-CV-0225, 2020 WL 2198117, at *19 (D. Conn. 2020) (quoting Diesel v. Town of Lewisboro, 232 F.3d 92, 103 (2d Cir. 2000)); accord Mitchell v. Martin, 23-CV-0902, 2023 WL 8114344, at *7 (D. Conn. Nov. 22, 2023).
There are two avenues for pursing an equal protection claim: (1) a selective enforcement claim, and (2) a class of one claim.
In order to sustain a selective treatment claim a plaintiff must show that: (1) compared with others similarly situated, they were selectively treated; and (2) “such treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.” Crowley v. Courville, 76 F.3d 47, 52-53 (2d Cir. 1996).
Absent a suspect classification, a plaintiff may proceed under a “class of one” theory by “alleg[ing] that [he] has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Fortress Bible Church v. Feiner, 694 F.3d 208, 222 (2d Cir. 2012) (quoting Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)).
The Complaint fails to allege facts plausibly suggesting that Plaintiff was treated differently based on his race (or any other suspect classification). (See generally Dkt. No. 1.) Instead, the Complaint implies that there is a history of racism against Black people dating back to slavery and because Plaintiff was pulled over and issued a speeding ticket, it must have been because he is Black. (Dkt. No. 1 at 6.) These allegations are insufficient to plausibly suggest an equal protection claim. Although Plaintiff alleges that there were other vehicles traveling around him when he was pulled over, the Complaint fails to allege that those vehicles were traveling at the same rate of speed as he was and-perhaps more significantly-it fails to allege facts plausibly suggesting the race of the individuals operating those vehicles. (See generally Dkt. No. 1.) Moreover, Plaintiff fails to present any comparators who are “prima facie identical” to him and who were treated differently. Conquistador v. Corcella, 22-CV-0992, 2023 WL 3006806, at *2 (D. Conn. Apr. 19, 2023) (quoting Hu v. City of New York, 927 F.3d 81, 92 (2d Cir. 2019)
The Complaint does not clearly make this connection but construing all reasonable inferences in Plaintiff's favor, it could be inferred.
As a result, I recommend that Plaintiff's equal protection claim be dismissed for failure to state a claim upon which relief may be granted.
b. Due Process
The Due Process Clause protects procedural and substantive rights. Page v. Cuomo, 478 F.Supp.3d 355, 370 (N.D.N.Y. 2020) (Hurd, J.). Procedural due process requires that “a deprivation of life, liberty, or property be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985).
To the extent Plaintiff's Complaint might be understood to raise a substantive due process claim, I recommend that it also be dismissed. Substantive due process protects against government action that is “arbitrary, conscience shocking, or oppressive in a constitutional sense,” but not against official conduct that is merely “incorrect or ill-advised.” Page v. Cuomo, 478 F.Supp.3d 355, 371 (N.D.N.Y. 2020) (Hurd, J.) (citation omitted). In other words, “substantive due process rights are violated only by conduct ‘so outrageously arbitrary as to constitute a gross abuse of governmental authority.'” Puckett v. City of Glen Cove, 631 F.Supp.2d 226, 237 (E.D.N.Y. 2009) (quoting Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d Cir. 1999)). There is no such outrageous conduct alleged here.
“To assert a violation of procedural due process rights, a plaintiff must first identify a property right, second show that the state has deprived him of that right, and third show that the deprivation was effected without due process.” Ferreira v. Town of E. Hampton, 56 F.Supp.3d 211, 225 (E.D.N.Y. 2014) (citation omitted). “Notice and an opportunity to be heard are the hallmarks of due process.” Ferreira, 56 F.Supp.3d at 225.
The crux of Plaintiff's due process claim against Defendant Gilman appears to be Plaintiff's belief that Defendant Gilman-as a police officer-was unqualified to also serve as the prosecutor during the traffic infraction trial. However, in New York State “the prosecution of petty crimes or offenses may be delegated to subordinates or other public or administrative officers and even to private attorneys.” People v. Soddano, 86 N.Y.2d 727, 728 (N.Y. 1995) (citing People v. DeLeyden, 10 N.Y.2d 293, 294 (N.Y. 1961) (prosecution by deputy sheriff who made the speeding charge); People v. Czajka, 11 N.Y.2d 253, 254 (N.Y. 1962) (prosecution of traffic offense by deputy town attorney)).
Plaintiff was permitted to raise his concerns regarding the delegation of prosecutorial authority to Defendant Gilman during his traffic infraction prosecution. Matter of Jeffryes v. Vance, 58 Misc.3d 185, 189 (N.Y. Sup. Ct. New York Cnty. 2017) (citing Cayuga Indian Nation of N.Y. v. Gould, 14 N.Y.3d 614, 633-34 (N.Y. 2010); Matter of Morgenthau v. Erlbaum, 59 N.Y.2d 143, 147 (N.Y. 1983); Matter of Steingut v. Gold, 42 N.Y.2d 311, 315 (N.Y. 1977); Hurrell-Harring v. State of New York, 15 N.Y.3d 8, 16 (N.Y. 2010)). Moreover, since Plaintiff was convicted of the traffic infraction, he was permitted to appeal that adverse determination. Matter of Jeffryes, 58 Misc.3d at 189 (citing Cayuga Indian Nation of N.Y., 14 N.Y.3d at 634; Matter of Dondi v. Jones, 40 N.Y.2d 8, 13-14 (N.Y. 1976)). Further, if, after conviction, the New York Appellate Term reversed the conviction, Plaintiff could bring an Article 78 proceeding to determine Defendant Gilman's liability and seek damages. Id. at 189-90 (citing N.Y. C.P.L.R. 7806; Morgenthau, 59 N.Y.2d at 147-48; Dondi, 40 N.Y.2d at 14; Matter of Gross v. Perales, 72 N.Y.2d 231, 236 (N.Y. 1988); Hughes Vill. Rest., Inc. v. Vill. Of Castleton-on-Hudson, 46 A.D.3d 1044, 1047 (N.Y. A.D.3d Dep't 2007); Metropolitan Taxicab Bd. Of Trade v. New York City Taxi & Limousine Comm'n, 115 A.D.3d 521, 522 (N.Y.App.Div. 1st Dep't 2014)).
“It is well established that the availability of Article 78 proceedings . . . provide meaningful post-deprivation remedies sufficient to defeat a due process claim.” Mathurin v. Broome Cnty., 20-CV-0515, 2020 WL 4194415, at *5 (N.D.N.Y. June 25, 2020) (Lovric, M.J.), report and recommendation adopted by, 2020 WL 4192522 (N.D.N.Y. July 21, 2020) (Sharpe, J.).
As a result, I recommend that Plaintiff's due process claim against Defendant Gilman based on his role during Plaintiff's traffic infraction trial be dismissed for failure to state a claim upon which relief may be granted.
4. Claims Against Defendant NYSP
The Eleventh Amendment to the United States Constitution bars federal courts from exercising subject matter jurisdiction over claims against a state or one of its agencies absent their consent to such a suit or an express statutory waiver of immunity. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 90-100 (1984). Congress did not abrogate the Eleventh Amendment immunity granted to the states when it enacted 42 U.S.C. § 1983 because it is well-settled that states are not “persons” under section 1983. See Quern v. Jordan, 440 U.S. 332, 24041 (1979); see also Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (citation omitted).
The Eleventh Amendment's immunity extends to the New York State Police as an agency of the State of New York. See, e.g., Riley v. Cuomo, 17-CV-1631, 2018 WL 1832929, *4 (E.D.N.Y. Apr. 16, 2018) (holding that the New York State Police, as a division in the executive department of the State, is immune from claims under § 1983); Finkelman v. New York State Police, 06-CV-8705, 2007 WL 4145456, *3 (S.D.N.Y. Nov. 15, 2007) (holding that the Eleventh Amendment barred the plaintiff's suit seeking monetary damages under § 1983 against New York State Police).
As a result, I recommend that Plaintiff's claims pursuant to 42 U.S.C. § 1983 against Defendant NYSP seeking monetary damages be dismissed.
5. Claims Against Defendant Kennedy
Absolute immunity extends to nonjudicial officers who perform acts that “are integrally related to an ongoing judicial proceeding.” Mitchell v. Fishbein, 377 F.3d 157, 172-73 (2d Cir. 2004). Plaintiff's Complaint identifies Defendant Kennedy as “Court Clerk” of Defendant Schoharie Town Court. (Dkt. No. 1 at 2, 8.) Quasi-judicial immunity protects court clerks from suit “for performance of tasks which are judicial in nature and an integral part of the judicial process.” Garcia v. Hebert, 08-CV-0095, 2013 WL 1294412, at *12 (D. Conn. Mar. 28, 2013) (quoting Rodriguez v. Weprin, 116 F.3d 62, 66 (2d Cir. 1997)), aff'd, 594 Fed.Appx. 26 (2d Cir. 2015) (summary order), cert. denied, No. 14-9720 (Oct. 5, 2015).
As a result, I recommend that Plaintiff's claims against Defendant Kennedy in her individual capacity be dismissed, because she is immune from suit. See Leftridge v. Judicial Branch, 22-CV-0411, 2023 WL 4304792, at *9 (D. Conn. June 30, 2023) (dismissing the plaintiff's claims against the state court clerks of court based on the doctrine of quasi-judicial immunity where “their alleged actions arose out of or related to [plaintiff]'s child support and child custody proceedings.”); Braithwaite v. Tropea, 23-CV-1431, 2023 WL 4207907, at *4 (E.D.N.Y. June 27, 2023) (citing Jackson v. Pfau, 523 Fed.Appx. 736, 737-38 (2d Cir. 2013) (affirming dismissal pursuant to Section 1915(e)(2)(B) of pro se plaintiff's Section 1983 claims against the Chief Clerks of several state courts based on the doctrine of judicial immunity)) (dismissing as frivolous the plaintiff's claims against the clerk of the court because he was entitled to absolute immunity); Mendez v. Johnson, 22-CV-6811, 2022 WL 3587600, at *2 (S.D.N.Y. Aug. 22, 2022) (citing inter alia, Chmura v. Norton, Hammersley, Lopez & Skokos Inverso PA, 17-CV-2164, 2018 WL 2138631, at *2 (D. Conn. May 9, 2018) (extending judicial immunity to a clerk of court); Manko v. Ruchelsman, 12-CV-4100, 2012 WL 4034038, at *2 (E.D.N.Y. Sept. 10, 2012) (same)) (noting that courts have routinely granted judicial immunity to “government officials, including clerks of court and other court employees, for their acts that assist a judge in the performance of his or her judicial duties.”).
Moreover, I recommend that Plaintiff's claims against Defendant Kennedy in her official capacity as Court Clerk of the Schoharie Town Court be dismissed because the Schoharie Town Court is an arm of the New York state court system and New York State is immune from suit pursuant to the Eleventh Amendment. Braithwaite, 2023 WL 4207907, at *4 (collecting cases) (holding that the plaintiff's claims against the Chief Clerk of the Suffolk County Court in his official capacity are barred by the Eleventh Amendment).
D. Additional Legal Grounds Listed
The Complaint also mentions the Fifth Amendment, Seventh Amendment, Eighth Amendment, Ninth Amendment, Title VI of the Civil Rights Act, the “right to travel,” the “right to life, liberty, and the pursuit of happiness,” and the No Fear Act as bases for relief. Based on my review, the Complaint fails to allege facts plausibly suggesting any claims pursuant to these legal bases.
“The Fifth Amendment protects against compulsory self-incrimination by forbidding the introduction of coerced statements into evidence at trial.” Harris v. Doe, 24-CV-0151, 2024 WL 1344697, at *3 (D. Conn. Mar. 29, 2024). The Complaint fails to allege facts plausibly suggesting that Plaintiff made any self-incriminating statements or that such statements were introduced as evidence during his trial.
The Seventh Amendment preserves “the right to trial by jury” for certain cases brought in federal court. U.S. Const. amend. VII. Since the federal judiciary determines the extent to which a litigant in federal court may try his or her case before a jury, see e.g., Messa v. Goord, 652 F.3d 305 (2d Cir. 2011), persons acting under the color of state law (i.e., those persons who may be named as defendants in a § 1983 action) generally lack the capacity to violate the Seventh Amendment. See Kampfer v. Argotsinger, 18-CV-0007, 2020 WL 906274 at *10 (N.D.N.Y. Feb. 25, 2020) (The Seventh Amendment does not “provide a [. . .] cause of action cognizable under § 1983.” (citation and quotation omitted)). As a result, I recommend that “‘Plaintiff's citation to the Seventh Amendment [be construed] as support for h[is] request for a civil jury trial,' rather than as an independent basis for relief.” Kampfer, 2020 WL 906274, at *10 (citing White v. City of New York, 13-CV-7156, 2014 WL 4357466, at *8 n.13 (S.D.N.Y. Sept. 3, 2014)).
“[T]he Eighth Amendment applies only to convicted prisoners.” Simpson v. Town of Warwick Police Dep't., 159 F.Supp.3d 419, 443 (S.D.N.Y. 2016) (citing City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)). The Complaint fails to allege facts plausibly suggesting that Plaintiff was incarcerated after conviction of the traffic infraction.
“The Ninth Amendment cannot serve as the basis for a § 1983 claim.” Rodriguez v. Burnett, 22-CV-10056, 2024 WL 1466880, at *7 (S.D.N.Y. Apr. 4, 2024) (citing Lloyd v. Lee, 570 F.Supp.2d 556, 566 (S.D.N.Y. 2008)).
“Title VI does not provide for individual liability.” Sherman v. Yonkers Pub. Schs., 21-CV-7317, 2023 WL 137775, at *7 (S.D.N.Y. Jan. 9, 2023) (citing Bayon v. State Univ. of N.Y. At Buffalo, 98-CV-0578, 2001 WL 135817, at *2 (W.D.N.Y. Feb. 15, 2001)). Hence, I recommend that Plaintiff's Title VI claim against Defendants Breen, Gilman, and Kennedy, be dismissed with prejudice. Moreover, to the extent that the Complaint is construed as asserting a claim pursuant to Title VI against Defendants Schoharie Town Court and NYSP, I recommend that it be dismissed. Plaintiff's conclusory allegation-that “[a]s an African American we as a people were hunted as slaves and hung, shot raped, and murdered for over 400 years, with sham courts acquitting racist white men, police,judges, sheriffs, and numerous highly ranked officials complicit and in collusion were at that time lawfull, legal killings of African American people” (Dkt. No. 1 at 6 [errors in original])-is insufficient to plausibly suggest that Plaintiff was discriminated against on the basis of race. See Grillo v. N.Y.C. Transit Auth., 291 F.3d 231, 235 (2d Cir. 2002) (“Even if [plaintiff's] highly dubious claim that he was unfairly singled out for punishment by the instructors is credited, [plaintiff] has done little more than cite to his alleged mistreatment and ask the court to conclude that it must have been related to his race.”); Varughese v. Mount Sinai Med. Ctr., 12-CV-8812, 2015 WL 1499618, at *42 (S.D.N.Y. Mar. 27, 2015) (“fallacy” for the plaintiff to conclude: “I belong to a protected class; something bad happened to me at work; therefore, it must have occurred because I belong to a protected class”); Rissman v. Chertoff, 08-CV-7352, 2008 WL 5191394, at *4 (S.D.N.Y. Dec. 12, 2008) (“In essence, plaintiff alleges that because he was yelled at [by his supervisors], this must have been because [of his protected status]. Such conclusory and speculative statements are insufficient.”).
“As the Supreme Court has explained, the ‘right to travel' is something of a constellation of rights:
The ‘right to travel' discussed in our cases embraces at least three different components. It protects the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for
those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.”Weisshaus v. Cuomo, 512 F.Supp.3d 379, 391 (E.D.N.Y. Jan. 11, 2021) (quoting Saenz v. Roe, 526 U.S. 489, 500 (1999)). The Complaint fails to allege facts plausibly suggesting a claim pursuant to any of these components of the “right to travel.” (See generally Dkt. No. 1.) Moreover, “[t]o the extent Plaintiff means to argue that traffic enforcement violates his right to travel, that claim [should be] dismissed as frivolous.” Johnson El v. Bird, 19-CV-5102, 2020 WL 5124920, at *5 n.8 (S.D.N.Y. Aug. 31, 2020) (citing Annan v. State of N.Y. Dep't of Motor Vehicles, 15-CV-1058, 2016 WL 8189269, at *5 (E.D.N.Y. Mar. 2, 2016), aff'd, 662 Fed.Appx. 85 (2d Cir. 2016) (summary order)).
Claims that Defendants deprived Plaintiff of his “right to life, liberty, and the pursuit of happiness” are not cognizable under 42 U.S.C. § 1983. Bones v. Cnty. of Monroe, 23-CV-6201, 2023 WL 8809732, at *4 n.3 (W.D.N.Y. Dec. 20, 2023) (citing Nguyen v. Ridgewood Sav. Bank, 66 F.Supp.3d 299, 307 (E.D.N.Y. 2014) (rejecting Section 1983 claim premised on the “vague invocation of the right to life, liberty and the pursuit of happiness”)) (rejecting the plaintiff's claim that her “right to liberty” was violated because it “is not a cognizable claim, and the Court accordingly does not address it.”).
Finally, to the extent that the Complaint and Supplements are construed as asserting a claim pursuant to the No Fear Act, I recommend that it be dismissed. The No Fear Act is a law to protect federal employees from workplace discrimination and is not applicable to Plaintiff's case where he does not allege to be a federal employee. Moreover, “[o]f the few courts that have considered claims made under the No Fear Act, none have found that the Act provides a private cause of action[.]” Zietek v. Pinnacle Nursing and Rehab Ctr., 21-CV-5488, 2024 WL 243436, at *5 (S.D.N.Y. Jan. 23, 2024) (citing Baney v. Mukasey, 06-CV-2064-L, 2008 WL 706917, at *6 (N.D. Tex. Mar. 14, 2008); see also Lee v. Saul, 19-CV-6553, 2022 WL 1051216, at *12 (S.D.N.Y. Feb. 10, 2022); Glaude v. United States, 2007-5125, 2007 WL 2682957, at *2 (Fed. Cir. Sept. 7, 2007); Pedicini v. U.S., 480 F.Supp.2d 438, 459 (D. Mass. 2007); Mills v. Barreto, 03-CV-0735, 2004 WL 3335448, at *3 (E.D. Va. Mar. 8, 2004)).
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.).
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 Fed.Appx. 30.
Here, better pleading could not cure the deficiencies described above with respect to the following claims: (1) claims pursuant to N.Y. Penal Law § 195.00 and 18 U.S.C. § 241; (2) ADA claim against Defendants Breen, Gilman, and Kennedy; and (3) claims pursuant to 42 U.S.C. § 1983 against (a) Defendant Breen, (b) Defendant Schoharie Town Court, (c) Defendant Gilman in his official capacity, (d) Defendant NYSP, and (e) Defendant Kennedy. As a result, I recommend that those claims be dismissed without leave to replead.
Out of an abundance of caution and in deference to Plaintiff's pro se status, the undersigned recommends that Plaintiff be granted leave to amend the following claims to cure the defects as stated above: (1) ADA claim against Defendants NYSP and Schoharie Town Court; and (2) Section 1983 claims against Defendant Gilman in his individual capacity.
If Plaintiff chooses to avail himself of an opportunity to amend, such amended pleading must set forth a short and plain statement of the facts on which he relies to support any legal claims asserted. Fed.R.Civ.P. 8(a). In addition, the amended complaint must include allegations reflecting how the individual(s) named as Defendant(s) are involved in the allegedly unlawful activity. Finally, Plaintiff is informed that any amended complaint will replace the existing Complaint, and must be a wholly integrated and complete pleading that does not rely upon or incorporate by reference any pleading or document previously filed with the Court. See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (“It is well established that an amended complaint ordinarily supersedes the original, and renders it of no legal effect.” (internal quotation marks omitted)).
ACCORDINGLY, it is
ORDERED that Plaintiff's amended IFP application (Dkt. No. 7) is GRANTED; and it is further respectfully
RECOMMENDED that the Court DISMISS WITH LEAVE TO AMEND the Complaint (Dkt. No. 1) to the extent that it asserts the following claims: (1) an ADA claim against Defendants NYSP and Schoharie Town Court; and (2) Section 1983 claims against Defendant Gilman in his individual capacity, for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e); and it is further respectfully
RECOMMENDED that the Court DISMISS WITHOUT LEAVE TO AMEND the Complaint (Dkt. No. 1) to the extent that it asserts the following claims: (1) claims pursuant to N.Y. Penal Law § 195.00 and 18 U.S.C. § 241; (2) ADA claim against Defendants Breen, Gilman, and Kennedy; and (3) claims pursuant to 42 U.S.C. § 1983 against (a) Defendant Breen, (b) Defendant Schoharie Town Court, (c) Defendant Gilman in his official capacity, (d) Defendant NYSP, and (e) Defendant Kennedy, because it seeks relief from individuals who are immune from such relief, and is otherwise frivolous pursuant to 28 U.S.C. § 1915(e); and it is further
ORDERED that the Clerk of the Court shall file a copy of this Order and ReportRecommendation on Plaintiff, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. 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)).
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).