Opinion
6:19-cv-1412 (GTS/TWD)
01-14-2020
TOMAS ZAVALIDROGA, individually and as Power of Attorney, Medical proxy, Trustee and Next Friend of MARGARET ZAVALIDROGA, Plaintiff, v. SAMUEL HESTER, et al., Defendants.
APPEARANCES: TOMAS ZAVALIDROGA Plaintiff, pro se Rt. 28 PO General Delivery Old Forge, NY 13420
APPEARANCES: TOMAS ZAVALIDROGA
Plaintiff, pro se
Rt. 28 PO General Delivery
Old Forge, NY 13420 THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
The Clerk has sent to the Court for initial review the pro se complaint of Plaintiff Tomas Zavalidroga ("Plaintiff' or "Zavalidroga") together with a motion to proceed in forma pauperis ("IFP") (Dkt. Nos. 1, 2.) As noted herein, the Court grants Plaintiff's IFP motion, necessitating further review relative to whether the pleading meets 28 U.S.C. 1915(e)'s sufficiency standards. For the reasons discussed below, the Court finds Plaintiff's complaint (Dkt. No. 1) fails to state a claim on which relief may be granted, and, therefore, recommends Plaintiff's complaint be sua sponte dismissed in its entirety pursuant to 28 U.S.C. § 1915(e).
I. BACKGROUND
On November 15, 2019, Plaintiff filed a civil complaint against Defendants Samuel Hester, Daniel Christmas, Nick Polce, Ted Houseman, Corey E. Kelly, Theresa Girouard, William P. Schmitt, and Heritage Home-The Grand (collectively, "Defendants") seeking to "redress the loss of constitutionally-protected liberty and property interests as a result of the conspiratorial actions of the Defendants and their privies." (Dkt. No. 1 at 1.)
Page references to documents identified by docket number refer to the numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office.
By Order filed November 19, 2019, it was determined that this case is directly related to case 6:19-cv-1304 (GTS/TWD), which was voluntarily discontinued by Plaintiff on October 25, 2019, without prejudice pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure. (Dkt. No. 4.) Therefore, in the interest of judicial economy, this case was reassigned to Chief Judge Glenn T. Suddaby and the undersigned. (Id.) A copy of the Text Order was mailed to Plaintiff at his address on file. (See id.)
On December 19, 2019, before the Court issued its Order on Plaintiff's IFP motion, Plaintiff filed a Notice of Appeal of the November 19, 2019, Order reassigning the case. (Dkt. No. 5.) By Notice dated December 23, 2019, the United States Court of Appeals for the Second Circuit advised:
An appeal in the above-referenced case has been docketed in the Court of Appeals. According to the district court docket sheet or other available information, appellant has moved for leave to proceed in forma pauperis in district court on November 15, 2019 and that motion is pending. The appeal may not move forward until the motion is determined. Please direct the motion to the appropriate judge for determination. Upon the grant or denial of the motion, please enter the order and transmit it to the Court of Appeals.(Dkt. No. 7.) On January 13, 2020, Judge Suddaby issued a Text Order directing Plaintiff to show cause in writing, within fourteen (14) days, as to why his complaint should not be sua sponte dismissed without prejudice under Fed. R. Civ. P. 41(b) and Local Rule 41.2(a),(b), for failure to prosecute and comply with Local Rule 10.1(c)(2). (Dkt. No. 9.)
The District Court noted Plaintiff's failure to immediately notify the Court of any change in his address has unduly delayed both his appeal to the Second Circuit and this action. (Dkt. No. 9; see also Dkt. No. 8.)
II. IPF MOTION
As noted above, Plaintiff's IFP motion is pending before the undersigned. A court may grant 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 IFP motion, the Court finds Plaintiff meets this standard. Therefore, Plaintiff's motion to proceed IFP (Dkt. No. 2) is granted.
III. SUFFICIENCY OF THE COMPLAINT
A. Standard of Review
28 U.S.C. §1915(e) directs that when a plaintiff proceeds in forma pauperis, "the court shall dismiss the case at any time if the court determines . . . 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)(B)(i)-(iii).
In determining whether an action is frivolous, the court must look to see whether the complaint lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). "An action is frivolous when either: (1) the factual contentions are clearly baseless, such as when the claims are the product of delusion or fantasy; or (2) the claim is based on an indisputably meritless legal theory." Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (citation omitted). Although extreme 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), the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. See, e.g., Thomas v. Scully, 943 F.2d 259, 260 (2d Cir. 1991) (per curiam) (holding a district court has the power to dismiss a complaint sua sponte if the complaint is frivolous).
To survive dismissal for failure to state a claim, a complaint must plead enough facts to state a claim that is "plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While Rule 8(a) of the Federal Rules of Civil Procedure, which sets forth the general rules of pleading, "does not require detailed factual allegations, . . . it demands more than an unadorned, the-defendant-harmed-me accusation." Id.
In determining whether a complaint states a claim upon which relief may be granted, "the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994), cert. denied, 513 U.S. 836 (1994) (citation omitted). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. Similarly, allegations that "are so vague as to fail to give the defendants adequate notice of the claims against them" are subject to dismissal. Sheehy v. Brown, 335 F. App'x 102, 104 (2d Cir. 2009).
A pro se litigant's pleadings are held to a less strict standard than attorney-drafted pleadings. See Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008) ("Even in the formal litigation context, pro se litigants are held to a lesser pleading standard than other parties."); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Because Plaintiff is proceeding pro se, the Court construes the pleadings "to raise the strongest arguments that they suggest." See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006) (per curiam) (internal quotation marks omitted). However, this "does not exempt a [pro se litigant] from compliance with relevant rules of procedural and substantive law." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983).
Generally, a pro se complaint should not be dismissed "without giving leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 79 (2d Cir. 1999) (citation and internal quotation marks omitted); Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014). An opportunity to amend is not required 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).
B. Summary of the Complaint
According to Plaintiff, "the roots of this action extend back to April 1999, when James Kelley, grandfather of Corey E. Kelley, began encroaching on the lake property now owned by Zavalidroga." (Dkt. No. 1 at ¶ 4.) Plaintiff, through a series of lawsuits, Zavalidroga "demonstrated the Kelley family's pattern of illegal activity and connection to organized crime." (Id. at ¶ 5.) Dan Christmas, a local property developer and Director of Christmas & Associates, is a "direct relative" of the Kelley family. (Id.)
In the early 2000s, Plaintiff's mother, Margaret Zavalidroga ("Margaret"), designated Plaintiff executor of her will and granted him full Power-of-Attorney over her affairs. (Id. at ¶ 6.) In 2006, Plaintiff and Margaret listed for sale the "Forward Road, Annsville property" (the "Zavalidroga property"). (Id. at ¶ 7.) Nick Polce, the Director of Gateway Properties, made multiple offers to purchase the Zavalidroga property. (Id.) According to Plaintiff, "Gateway Properties is known to be one of the many 'front' land companies set up by Dan Christmas[.]" (Id.) In the past, Dan Christmas and Christmas & Associates were accused of fraudulent land sales, permit fraud, money laundering, and conspiracy. (Id. at ¶ 8.)
In 2012, Margaret granted Plaintiff "Medical Proxy Powers over her" and, in 2013, she conveyed "rights to all timber on all property that was under her ownership" to Plaintiff. (Id. at ¶ 6.) In June 2014, Margaret conveyed the "real property she owned" to Plaintiff. (Id.)
Then, in July 2014, Margaret was "abducted from her house and was found by police several days later in nearby woods." (Id. at ¶ 9.) Plaintiff was falsely accused of being involved in her disappearance and subsequently prosecuted. (Id.) "This prosecution was later used as a pretext to begin a fraudulent Guardianship proceeding against Margaret Zavalidroga, which resulted in both Zavalidrogas losing substantial rights and property." (Id.) Defendants "had prior knowledge of the 2014 attacks on the Zavalidrogas and knew that these unlawful acts would be used to deprive the Zavalidrogas of their property." (Id. at ¶ 10.)
Between 2014 and 2016, Plaintiff "suffered a series of false arrests," which were "orchestrated in furtherance of the scheme to deprive him of his possessions and real property." (Id. at ¶ 11.) Specifically, in September 2014, during an "illegal hearing without any valid justification," Theresa Girouard was "named state-appointed Guardian over the person and property of Margaret Zavalidroga, and under color of law, Orders were rendered which purported to negate all contracts between Thomas and Margaret Zavalidroga." (Id. at ¶ 12.) During the ensuing years of this "illegal Guardianship," Theresa Girouard payed herself "exorbitant fees from the assets of both Margaret and Thomas Zavalidroga." (Id. at ¶ 13.) Theresa Girouard "then set out to methodically loot, destroy or devalue any property she could not harvest to her own benefit or to the benefit of her privies." (Id.)
Additionally, "[i]n violation of the Federal 1987 Nursing Home Reform Act and the Federal False Claim Act, Girouard, Heritage Home-The Grand and various medical-provider confederates placed Margaret Zavalidroga in an unnecessarily restrictive environment and severely limited outside contact with Zavalidroga, mainly as a means of covering up their malfeasance and also as a means to prevent Margaret Zavalidroga from testifying as a witness." (Id. at ¶ 14.) Margaret was "unnecessarily administered heavy doses of mind altering drugs immediately upon entering the Guardianship in order to justify the sham Guardianship and false confinement." (Id.) "In addition to causing great physical damage to Zavalidroga, her unnecessary and fraudulent confinement resulted in hundreds of thousands of dollars of loss by the state and Federal governments." (Id.)
In 2015, at the request of Theresa Girouard, the State Court and police "illegally barred" Plaintiff from his property. (Id. at ¶ 15.) Theresa Girouard "unlawfully allowed" Nick Polce to gain control of Plaintiff's real estate and timber resources. (Id.) "Thousands of dollars of [Plaintiff's] possessions and equipment were seized by the Defendants at this time and remain unaccounted for." (Id.) By 2017, Theresa Girouard and Nick Polce "allowed the property to deteriorate and lose value." (Id. at ¶ 16.) William Schmitt, an attorney, was hired by Defendants to oversee the "fraudulent transfer" of the Zavalidroga property into the hands of the Defendants' "confederates." (Id.)
Between 2015 and 2019, Nick Polce, Samuel Hester, and Theresa Girouard "knew the Guardianship was also being used as means to launder outside funds of unknown source, mainly through the sham 'auctioning' of the Plaintiff's timber resources." (Id. at ¶ 16.) Further, and unbeknownst to Plaintiff, Theresa Girouard, William Schmitt, and Nick Polce "began secret land transfer to their privies in 2018, selling parcels which were appraised for hundreds of thousands of dollars for paltry sums amounting to one tenth their actual worth." (Id. at ¶ 17.)
Specifically, Theresa Girouard, William Schmitt, and Nick Polce created "fraudulent deeds" and "transferred several of the Zavalidroga parcels" to Ted Houseman and Corey Kelley "with the words 'on behalf of Tomas Zavalidroga.'" (Id. at ¶ 18.) Ted Houseman and Corey Kelly "knew" of the "rightful ownership of the parcels and willingly engaged in a conspiracy to defraud." (Id.) Dan Christmas "was also directly involved in the fraudulent land transfers through his control over the shell company, Gateway Properties, and his dealings with Nick Polce." (Id.) Moreover, Ted Houseman and Corey Kelly "either stole or destroyed thousands of dollars of equipment and property at [Plaintiff's] homestead between 2016-2019." (Id.)
Given this factual backdrop, the complaint seeks monetary, injunctive, and declaratory relief, and asserts seven causes of action: (1) under 42 U.S.C. §§ 1981, 1983, and 1985 for alleged deprivations of his federal rights, property interests, and discrimination; (2) under the Fourteenth Amendment to the U.S. Constitution for alleged deprivations of due process and significant liberty and property interests; (3) under "state law statutes" for false imprisonment, trespass, and conversion of property; (4) under the International Covenant on Civil and Political Rights ("ICCPR") for alleged violations of "international human rights of the Plaintiff and his privies;" (5) under the False Claim Act ("FCA") and the Federal Nursing Home Reform Act of 1987 ("FNHRA") for alleged violation of the "interests of the Plaintiff and his privies and the interests of the Federal government;" (6) under the Racketeer Influenced and Corrupt Organizations Act ("RICO") for alleged violations of "this section of Federal law;" and (7) under the Fifth Amendment (Takings Clause) to the U.S. Constitution for alleged deprivations of "property rights." (Id. at ¶¶ 19-25.) For a complete statement, reference is made to the complaint. (Dkt. No. 1.)
C. Analysis
As an initial matter, the Court notes Plaintiff has brought many actions in this District, all of which have been dismissed pursuant to § 1915, Fed. R. Civ. P. 12(b)(6), Fed R. Civ. P. 12(c), Fed. R. Civ. P. 41(b), Fed. R. Civ. P. 41(b), Local Rule 41.2(a),(b), and Local Rule 10.1(c)(2). See Zavalidroga v. Cote, No. 6:09-CV-225 (DNH/ATB) (closed 1/19/10); Zavalidroga v. Oneida County Sheriff's Dep't, No. 6:11-CV-277 (NAM/DEP) (closed 6/17/14); Zavalidroga v. Cuomo, No. 6:11-CV-831 (NAM/ATB) (closed 8/1/12); Zavalidroga v. Oneida Cty. Dep't of Adult Protective Svcs., No. 14-CV-1273 (GTS/TWD) (closed 12/18/15); Zavalidroga v. Girouard, No. 6:17-cv-0682 (BKS/ATB) (closed 10/24/17); Zavalidroga v. Madison County, No. 5:17-CV-117 (DNH/TWD) (closed 3/21/19).
Plaintiff and Margaret attempted to appeal the District Court's dismissal of this complaint, but the Second Circuit affirmed the dismissal and denied the appeal on November 24, 2010. Zavalidroga v. Cote, No. 6:09-CV-225 (DNH/ATB) (Dkt. Nos. 77, 79).
Plaintiff and Margaret also appealed the district court's dismissal of this action. Zavalidroga v. Oneida Cty. Sheriff's Dep't, No. 6:11-CV-277 (NAM/DEP) (Dkt. No. 158). The Second Circuit denied IFP and plaintiffs' request for injunctive relief, finding that the appeal "lacks an arguable basis either in law or in fact." Id. (Dkt. No. 165).
Plaintiff made attempts to reopen and/or appeal the dismissal of this action. Zavalidroga v. Cuomo, No. 6:11-CV-831 (NAM/ATB) (Dkt. No. 31.) The District Court denied reopening (Dkt. No. 35), and the Second Circuit denied and dismissed Plaintiff's appeal on February 12, 2015. Id. (Dkt. Nos. 43, 44).
Plaintiff and Margaret appealed this case to the Second Circuit. Zavalidroga v. Oneida Cty. Dep't of Adult Protective Svcs., No. 14-CV-1273 (GTS/TWD) (Dkt. No. 29). On May 26, 2016, the Second Circuit denied a motion for appointment of counsel and dismissed the Plaintiffs' notice of appeal. Id. (Dkt. No. 32). On October 13, 2016, Plaintiff filed a motion to amend, which was denied on October 18, 2016. Id. (Dkt. Nos. 35, 36).
Plaintiff appealed the District Court's dismissal of this action. Zavalidroga v. Girouard, No. 6:17-cv-0682 (BKS/ATB) (Dkt. No. 14). The Second Circuit deemed the case in default for failure to pay the filing fee and/or failing to move in the Second Circuit for IFP status. Id. (Dkt. Nos. 30.)
Plaintiff's complaint was dismissed in its entirety except as to certain claims arising out of confinement in the Madison County Jail. Zavalidroga v. Madison County, No. 5:17-CV-117 (DNH/TWD) (Dkt. No. 14, 17). Plaintiff appealed to the Second Circuit. Id. (Dkt. No. 19.) On November 21, 2017, the Second Circuit dismissed Plaintiff's notice of appeal. Id. (Dkt. No. 31.) On March 22, 2019, the complaint was dismissed in its entirety pursuant to Local Rule 41.2 (a) and (B) and 10.1(c)(2) and judgment was entered in favor of the defendants. Id. (Dkt. Nos. 32, 33.)
This most recent complaint is an account and restatement of many of the claims that Plaintiff has brought in the past with some minor modifications and different defendants. Indeed, Plaintiff has been complaining for years about Margaret's care and about the results of Judge Hester's finding regarding her competency, the transfer of her property, and the disposition of the property by her court-appointed guardian, Theresa Girouard. See, e.g., Zavalidroga v. Oneida Cty. Dep't of Adult Protect. Servs., No. 6:14-cv-1273 (GTS/TWD) (Dkt. Nos. 23, 24) (dismissing lawsuit, in which Plaintiff alleged a conspiracy under 42 U.S.C. §§ 1981, 1983, and 1985 to nullify the power of attorney Margaret had given him and to undo transfers of Margaret's real property to Plaintiff, on Younger abstention grounds because there was a pending state court action regarding the guardianship over Margaret and control over her affairs and real property, including property Plaintiff had transferred to himself using his power of attorney); Zavalidroga v. Madison County, et al., No. 5:17-cv-0117 (DNH/TWD) (Dkt. Nos. 14, 17) (dismissing civil rights action, where Plaintiff alleged, inter alia, a "long-standing civil rights conspiracy . . . relating to the unlawful nullification of the contracts between" Plaintiff and Margaret, "the conversion of their real property and assests (sic) and Margaret['s] forced confinement and detention at a nursing facility); Zavalidroga v. Girouard, No. 6:17-CV-0682 (BKS/ATB) (Dkt. Nos. 4, 9) (dismissing Plaintiff's claims brought pursuant to 42 U.S.C. §§ 1981, 1983, and 1985, allegedly for deprivation of property interests, federal interests, "discrimination in general" and pursuant to the ICCPR with prejudice and dismissing Plaintiff's claims regarding the alleged February 9, 2016, false arrest and malicious prosecution without prejudice); Zavalidroga v. Christmas, et al., 6:19-cv-1304 (GTS/TWD) (Dkt. Nos. 5, 6) (voluntarily dismissing an almost identical complaint).
In this action, Plaintiff seemingly picks up where he left off in Zavalidroga v. Girouard, supra, and largely complains about the most recent "fraudulent" transfers of Margaret's property to private individuals by Theresa Girouard in 2018 and the implications thereof. (See generally Dkt. No. 1.)
1. Plaintiff's Claims Asserted on Margaret's Behalf
Although the "Introduction" paragraph of the complaint states "[t]his is a civil rights Complaint . . . brought by Plaintiff, Tomas Zavalidroga, appearing pro se," the caption of the complaint indicates Plaintiff is bringing this action "individually and as Power of Attorney, Medical Proxy, Trustee and Next friend of Margaret Zavalidroga." (Dkt. No. 1.) Margaret is also listed as a party to this action. (Id. at ¶ 2.) However, Margaret has not signed the complaint, nor has she filed a motion to proceed IFP.
Plaintiff has been repeatedly told that he cannot represent the interests of anyone but himself, and he may not bring an action as "Power of Attorney" for Margaret without obtaining an attorney. See Zavalidroga v. Girouard, No. 6:17-cv-0682 (BKS/ATB) (Dkt. No. 4 at 9-11); Zavalidroga v. Oneida Cty., No. 14-cv-1273 (GTS/TWD) (Dkt. Nos. 6, 23). The law has not changed in this regard. It is well-settled that a person who has not been admitted to practice law may not represent anyone other than himself. Lattanzio v. COMTA, 481 F.3d 137, 139-40 (2d Cir. 2007); Guest v. Hansen, 603 F.3d 15, 20 (2d Cir. 2010); see also 28 U.S.C. § 1654. Plaintiff may only bring claims that relate to his own interests or his own injuries. Therefore, the Court does not construe the complaint as asserting any claims on Margaret's behalf.
In Zavalidroga v. Girouard, supra, Magistrate Judge Baxter further stated, "[Thomas Zavalidroga ("TZ")] is confused. He claims that he may bring this action because he is [Margaret Zavalidroga's ("MZ")] power of attorney. First, it is clear from this complaint, and from the other complaints that plaintiff TZ has filed, that he is no longer MZ's power of attorney as the result of a state court order. In any event, even if TZ were 'power of attorney' for MZ, he could only bring an action as power of attorney if he had a licensed attorney representing him." Zavalidroga v. Girouard, No. 6:17-cv-0682 (BKS/ATB) (Dkt. No. 4 at 9-11). In Zavalidroga v. Oneida Cty., supra, the complaint alleged that the defendants had commenced a state court action to nullify the durable power of attorney given to Tomas by Margaret. See Zavalidroga v. Oneida Cty., No. 14-cv-1273 (GTS/TWD) (Dkt. No. 6 at 2 n.1.) The undersigned noted, "It appears from an October 23, 2014, article in the Oneida Daily Dispatch newspaper that the Hon. Samuel Hester, New York State Supreme Court, Oneida County, stripped Tomas of his power of attorney over Margaret following a two-day hearing held around the time the complaint was filed in this action. See www.oneidadispatch.com/general-news/20141023/zavalidroga-stripped-of-power-of-attorney-status-for-mother (last visited on January 21, 2015)." Id.
Accordingly, it is recommended, that to the extent the complaint relates to Margaret Zavalidroga, the complaint be dismissed in its entirety without prejudice.
2. Section 1983
Section 1983 provides plaintiffs with a cause of action against government officials who, acting under the color of government authority, have subjected a plaintiff to "deprivation of any rights, privileges, or immunities secured by the Constitution and laws" of the United States. 42 U.S.C. § 1983; see also Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 250 (2d Cir. 2001). Section 1983 is "not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes." Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 145 n.3 (1979)).
To establish a Section 1983 claim, a plaintiff must demonstrate two elements: "(1) 'the act complained of was committed by a person acting under color of state law'; and (2) 'this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.'" Greenwich Citizens Comm. v. Counties of Warren & Washington Indus. Dev. Agency, 77 F.3d 26, 29-30 (2d Cir. 1996) (quoting Parratt v. Taylor, 451 U.S. 527, 535 (1981)). The Court construes the complaint as alleging claims against Defendants under Section 1983 for violation of the Takings Clause of the Fifth Amendment and the Due Process Clause of the Fourteenth Amendment. (Dkt. No. 1 at ¶¶ 19, 20, 23.)
The Takings Clause of the Fifth Amendment states that private property shall not "be taken for public use, without just compensation." U.S. Const. amend. V. To state a claim for a violation of the Takings Clause, a plaintiff must allege facts plausibly suggesting: "(1) a property interest (2) that has been taken under color of state law (3) without just compensation." Waltz v. Board of Educ. of Hoosick Falls Cent. School Dist., No. 1:12-CV-0507 (GTS/CFH), 2013 WL 4811958, at *6 (N.D.N.Y. Sept. 10, 2013) (citations omitted). The Due Process Clause of the Fourteenth Amendment provides that no state shall "deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. "[T]o state a claim for violation of one's rights under the Due Process Clause, a plaintiff must first allege that he or she possesses a liberty or property interest protected by the Constitution or federal statutes." Id. at *7 (citations omitted).
a. Judicial Immunity
Plaintiff has once again named Samuel Hester as a Defendant, even though he has been repeatedly told that judges, and Judge Hester specifically, are entitled to absolute immunity for actions relating to the exercise of their judicial functions. See Zavalidroga v. Madison Cty., No. 5:17-CV-0117 (DNH/TWD) (Dkt. No. 14 at 15-16); Zavalidroga v. Girouard, No. 6:17-CV-0682 (BKS/ATB) (Dkt. Nos. 4 at 14-19; 9 at 4) (dismissing complaint as against Judge Hester with prejudice).
It is well-settled that "officials acting in a judicial capacity are entitled to absolute immunity against [Section] 1983 actions, and this immunity acts as a complete shield to claims for money damages." Montero v. Travis, 171 F.3d 757, 760 (2d Cir. 1999) (per curium); see also Mireles v. Waco, 502 U.S. 9, 9-10 (1991). Injunctive relief against judges is also barred "unless a declaratory decree was violated or declaratory relief was unavailable." Bobrowski v. Yonkers Courthouse, 777 F. Supp. 2d 692, 711 (S.D.N.Y. 2011) (citing, inter alia, Montero, 171 F.3d at 761). Although fairness and injustice may result on occasion, a judicial officer must be free to act on his or her own convictions in exercising the authority vested in him or her, "without apprehension of personal consequences. . . ." Id. (citing, inter alia, Mireles, 502 U.S. at 10). A judge will not be deprived of immunity because the action he took was in error or was done maliciously. Stump v. Sparkman, 435 U.S. 349, 357 (1978).
Whether an act by a judge is a "judicial one" relates to the "nature of the act itself" - whether it is a function that is necessarily performed by a judge. Bobrowski, 777 F. Supp. 2d at 712 (citing Stump v. Sparkman, 435 U.S. at 362). The parties must have dealt with the judge in his or her "judicial capacity." Id. The court acts in "absence of all jurisdiction" when "it does not have any statutory or constitutional power to adjudicate the case." Id. (citing Gross v. Rell, 585 F.3d 72, 84 (2d Cir. 2009)). The judge will not be deprived of absolute immunity if he or she takes action that is merely "in excess" of his or her authority. Id. (citing Mireles, 502 U.S. at 12-13).
In this case, Judge Hester's name only appears once in the body of the complaint, "Between the years 2015 and 2019, Polce, Hester, and Girouard also knew the Guardianship was also being used as a means to launder outside funds of unknown source, mainly through the sham 'auctioning' of the Plaintiff's timber resources." (Dkt. No. 1 at ¶ 16.) However, Plaintiff also complains about "an illegal hearing and without any valid justification, Theresa Girouard, in Sept. 2014, was named state-appointed guardian over the person and property of Margaret Zavalidroga, and under color of law, Orders were rendered which purported to negate all contracts between Tomas and Margaret Zavalidroga." (Id. at ¶ 12.) Thus, the Court construes Plaintiff's claims against Samuel Hester for action he took as a State Supreme Court Justice presiding over Margaret's guardship hearing and the implications thereof. Although Plaintiff also asks for injunctive relief, he has not alleged that "a declaratory decree was violated or declaratory relief was unavailable." See Bobrowski, 777 F. Supp. 2d at 711.
Accordingly, the Court recommends dismissing the complaint against Samuel Hester with prejudice based upon judicial immunity and for failure to state a claim on which relief may be granted.
b. Quasi-Judicial Immunity
Plaintiff has once again named Theresa Girouard as a Defendant, even though he was previously told that, as a court-appointed guardian, she is entitled to quasi-judicial immunity from suit, and that a court-appointed guardian does not act "under color of state law" for purposes of a Section 1983 action. See Zavalidroga v. Girouard, No. 6:17-cv-0682 (BKS/ATB) (Dkt. Nos. 4 at 19-23; 9 at 4) (dismissing claims against Theresa Girouard with prejudice); see also McKnight v. Middleton, 699 F. Supp. 2d 507, 528 (E.D.N.Y. 2010), aff'd, 434 F. App'x 32 (2d Cir. 2011); Yapi v. Kondratyeva, 340 F. App'x 683, 684-85 (2d Cir. 2009) (law guardian entitled to quasi-judicial immunity when acting as an arm of the court); see also Heinemann v. Patchey, No. 3:16-CV-774, 2017 WL 1115203, at *3-4 (D. Conn. Mar. 24, 2017) (holding court-appointed administrators, guardians, or conservators for adults do not act under color of state law).
As was the case in Zavalidroga v. Girouard, supra, in the case at bar, Plaintiff makes many claims against Theresa Girouard, all involving the way she is handling Margaret's guardianship and how she is disposing of Margaret's property, which Plaintiff believes to be his property, based on "contracts" that he had with Margaret, apparently invalidated by Judge Hester. (Dkt. No. 1 at ¶¶ 12-18.)
Consequently, the Court recommends dismissing the complaint against Theresa Girouard with prejudice because she is entitled to quasi-immunity from suit and for failure to state a claim on which relief may be granted. Moreover, to the extent Plaintiff names Theresa Girouard in her "individual capacity," such claims also fail for the reasons explained below.
c. Private Parties
"Because the United States Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes state action." Flagg v. Yonkers Sav. & Loan Ass'n, 396 F.3d 178, 186 (2d Cir. 2005) (internal quotation marks omitted). "A plaintiff pressing a claim of violation of his constitutional rights under [Section] 1983 is thus required to show state action." Tancredi v. Metro. Life Ins. Co., 316 F.3d 308, 312 (2d Cir. 2003). State action requires "'the party charged with the deprivation must be a person who may fairly be said to be a state actor.'" Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982) (emphasis omitted)).
"Conduct that is formally 'private' may become so entwined with governmental policies or so impregnated with a governmental character that it can be regarded as governmental action." Rendell-Baker v. Kohn, 457 U.S. 830, 847 (1982) (internal quotation marks omitted). However, a private entity does not become a state actor for purposes of Section 1983 merely on the basis of "the private entity's creation, funding, licensing, or regulation by the government." Cranley v. Nat'l Life Ins. Co. of Vt., 318 F.3d 105, 112 (2d Cir. 2003). Rather, "there must be such a close nexus between the [s]tate and the challenged action" that the state is "responsible for the specific conduct of which the plaintiff complains." Id. at 111 (internal quotation marks omitted).
In this action, Plaintiff names Daniel Christmas—a director of a land acquisition consortium (Christmas & Associates Land Consortium), Nick Polce—a director of a land acquisition consortium (Gateway Properties), Ted Houseman—a resident of Oneida County, Corey E. Kelley—a resident of Oneida County, William P. Schmitt—an attorney residing in Oneida County, and Heritage Home-The Grand—a nursing facility, as Defendants. (Dkt. No. 1 at ¶ 2.) However, none of these individuals are state actors and the Heritage Home-The Grand is a private nursing facility. Private conduct is simply beyond the reach of Section 1983 "'no matter how discriminatory or wrongful' that conduct may be." American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). In fact, Plaintiff was advised of the same in Zavalidroga v. Girouard, No. 6:17-cv-0682 (BKS/ATB) (Dkt. Nos. 4 at 23-26, 9 at 4), wherein the Court sua sponte dismissed Plaintiff's Section 1983 claims against Nick Polce and Heritage Nursing Home, among others, with prejudice on initial review.
As noted above, a private party may act under color of state law if he or she engages in conduct that constitutes willful participation in joint activity with the state. Sybalski v. Indep. Grp. Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008) (per curiam). The nexus to the state must be so close as to be fairly treated as that of the state itself. Tancredi v. Metro Life Ins. Co., 316 F.3d 308, 312 (2d Cir. 2003) (citations omitted). However, a "conclusory allegation that a private entity acted in concert with a state actor does not suffice to state a § 1983 claim against the private entity." Ciambriello v. Cty. of Nassau, 292 F.3d 307, 324 (2d Cir. 2002); see, e.g., Jackson v. Cty. of Rockland, 450 F. App'x 15, 19 (2d Cir. 2011) (citing Gallop v. Cheney, 642 F.3d 364, 369 (2d Cir. 2011) (finding allegations of conspiracy "baseless" where the plaintiff "offer[ed] not a single fact to corroborate her allegation of a 'meeting of the minds' among the conspirators'")). Rather, to support a claim against a private party on a [Section] 1983 conspiracy theory, a plaintiff must show "(1) an agreement between a state actor and a private party; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages." Id.
Here, Plaintiff's allegations are insufficient to plead that the actions of these private individuals and nursing home are attributable to the government, and conclusory allegations of a "conspiracy" with a state actor, who is immune from suit, are insufficient.
Additionally, in order to find that any of these individuals acted "improperly" by, among other things, creating "fraudulent deeds" and "transferring" Plaintiff's property, the Court would necessarily call in to question Judge Hester's Orders, which is prohibited by the Rooker Feldman doctrine. This doctrine divests the federal court of jurisdiction to consider actions that seek to overturn state court judgments. Fernandez v. Turetsky, No. 12-CV-4092, 2014 WL 5823116, at *3 (E.D.N.Y. Nov. 7, 2014) (citing Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)). The doctrine also bars the federal court from considering claims that are "inextricably intertwined" with a prior state court determination. Id. (quoting Johnson v. Smithsonian Inst., 189 F.3d 180, 185 (2d Cir. 1999)).
Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
Therefore, the Court recommends dismissing any claims under Section 1983 against Daniel Christmas, Nick Polce, Ted Houseman, Corey E. Kelley, William P. Schmitt, Theresa Girouard, and Heritage Home-The Grand for failure to state a claim on which relief can be granted.
3. Sections 1981 and 1985
Section 1981 provides in relevant part that "[a]ll persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind and to no other." 42 U.S.C. § 1981(a). Section 1981(c) provides that "[t]he rights protected by this section are protected against impairment by nongovernmental discrimination and under color of state law." Id. § 1981(c).
To establish a claim under Section 1981, a plaintiff must allege facts in support of the following elements: (1) a member of a minority race; (2) an attempt to discriminate against him on the basis of race by defendant; and (3) discrimination that concerned one or more of the activities enumerated in the statute. See Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993).
Section 1985 addresses in relevant part conspiracies to deprive "any person or class of persons of the equal protection of the laws, or of equal privileges or immunities under the laws." 42 U.S.C. 1985(3). The elements of a conspiracy claim under Section 1985 are: (1) that the defendants had a racial or other class-based, invidiously discriminatory animus; (2) that such animus motivated the defendants to enter into a conspiracy; (3) to deprive plaintiff of a constitutional or other federal right; (4) that a defendant committed an overt act in furtherance of that conspiracy; (5) resulting in injury to the plaintiff. Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 267 (1993).
Here, as was the case in Zavalidroga v. Madison Cty., No. 17-cv-0117 (DNH/TWD) (Dkt. No. 14 at 14-15) and Zavalidroga v. Girouard, No. 6:17-cv-0682 (BKS/ATB) (Dkt. No. 4 at 32-33), although Plaintiff purports to bring claims pursuant to Sections 1981 and 1985, he has failed to even allege that he is a member of a racial minority or that any of the Defendants discriminated against him on that basis. (See generally Dkt. No. 1.) Given the absence of factual allegations in the complaint that he was discriminated against on the basis of race or some other cognizable suspect class, the Court finds Plaintiff fails to state a claim under Sections 1981 and 1985. See Webster v. Fischer, 694 F. Supp. 2d 163, 196 (N.D.N.Y. 2010) (dismissing § 1985(3) claim subject to dismissal when plaintiff fails to establish membership in a protected class), aff'd 398 F. App'x 683 (2d Cir. 2010).
Therefore, the Court recommends dismissing any claims under Section 1981 and Section 1985 for failure to state a claim on which relief may be granted.
4. ICCPR
Plaintiff claims Defendants "violated" the ICCPR. (Dkt. No. 1 at ¶ 22). The complaint states: "Under this international treaty concerning rights of the individual, the Plaintiff alleges that the actions and omissions of the Defendants under color of state law have violated the international human rights of the Plaintiff and his privities." Id. However, the Second Circuit has specifically found that the ICCPR does "not create independent rights that are cognizable in this court. The ICCPR is not self-executing and therefore is not privately enforceable." Elie v. Holder, 443 F. App'x 635, 638 (2d Cir. 2011) (citations omitted). Thus, the complaint in this case may not be brought pursuant to the ICCPR, regardless of Plaintiff's allegations. Plaintiff was advised of the same in Zavalidroga v. Girouard, No. 6:17-cv-0682 (BKS/ATB) (Dkt. No. 4 at 33).
Therefore, the Court recommends that Plaintiff's claim under the ICCPR be dismissed with prejudice for failure to state a claim on which relief may be granted.
5. FCA and FNHRA
The complaint states, "Under these Federal Statutes, the Plaintiff alleges that the actions and omissions, under color of state law, have violated the interests of the Plaintiff and his privies and the interests of the Federal government." (Dkt. No. 1 at ¶ 23.) The Court addresses each statute in turn.
The FCA is "intended to recover damages from those who defraud the federal government," and "imposes liability on those who knowingly present, or cause to be presented, false or fraudulent claims for payment, or knowingly make, use, or cause to be used, false records or statements to get false claims paid or approved." United States v. Empire Educ. Corp., 959 F. Supp. 2d 248, 253 (N.D.N.Y. 2013) (citing 31 U.S.C. § 3729(a)(1)(A) & (B)). "Private persons, known as relators, may file qui tam actions—actions on behalf of the government—for violations of § 3729. Id. (citing 31 U.S.C. § 3730(c)(3); United States ex rel. Dick v. Long Island Lighting Co., 912 F.2d 13, 16 (2d Cir. 1990)).
However, "[t]he law in this Circuit is clear that pro se litigants may not pursue qui tam actions under the False Claims Act." Palmer v. Fannie Mae, No. 14-CV-4083JFBAYS, 2016 WL 5338542, at *4 (E.D.N.Y. Sept. 23, 2016) (citing U.S. ex rel. Mergent Servs. v. Flaherty, 540 F.3d 89, 93 (2d Cir. 2008)). Since Plaintiff is proceeding without representation, he cannot maintain a claim under the FCA. See id. (dismissing a qui tam action brought by a pro se plaintiff). Moreover, it is clear Plaintiff is litigating in his own interests and is not seeking to vindicate any rights belonging to the federal government. See Byrd v. Mazzola Ins. Corp, No. 6:17-CV-06178(MAT), 2017 WL 5508814, at *4 (W.D.N.Y. Apr. 5, 2017) ("Even if Plaintiff were seeking to vindicate a right belonging to a federal government agency, which she plainly is not, she could not maintain an FCA claim because she is unrepresented."); see also Bowens v. Correctional Assoc. of New York, No. 19-CV-1523 (PKC/CLP), 2019 WL 1586857, at *5 (E.D.N.Y. Apr. 12, 2019) ("[A] private party seeking to litigate FCA claims is not entitled to proceed pro se because that party is not litigating his or her own interest, but rather, the interest of the government.") (quoting Mergent, 540 F.3d at 93).
As to his claims brought pursuant to the FNHRA, the Second Circuit has stated that "the Nursing Home Reform Act's provisions do not confer a right of action on [a plaintiff] that can be enforced against a private nursing home[.]" Prince v. Dicker, 29 F. App'x 52, 54 (2d Cir. 2002) (summary order); see also Pantalone ex rel. Pantalone v. Cty. of Fulton, No. 6:10-CV-913 (DNH), 2011 WL 1457935, at *2 (N.D.N.Y. Apr. 15, 2011) ("It is undisputed that the FNHRA does not provide a private cause of action to be brought under the statute directly.").
Therefore, the Court recommends dismissing Plaintiff's claims under the FCA and the FNHRA with prejudice for failure to state a claim on which relief may be granted.
6. RICO
Without any explanation at all, Plaintiff claims Defendants "violated" RICO. (Dkt. No. 1 at ¶ 24.) The RICO statute provides a private right of action to any person injured in his business or property by reason of a violation of Title 18 United States Code, section 1962 of the chapter. Lerner v. Fleet Bank, N.A., 459 F.3d 273, 283 (2d Cir. 2006) (citing 18 U.S.C. § 1964(c)). In order to establish a civil RICO claim, the plaintiff must plead the conduct of an enterprise through a pattern of racketeering activity that causes injury to business or property as a result of the RICO violation. Lundy v. Catholic Health Systems of Long Island, Inc., 711 F.3d 106, 119 (2d Cir. 2013) (quoting Anatian v. Coutts Bank (Switz.) Ltd., 193 F.3d 85, 88 (2d Cir. 1999)). The pattern of racketeering activity must consist of two or more predicate acts of racketeering listed in 18 U.S.C. § 1961(1), (5). Id.; see also Moss v. Morgan Stanley, Inc., 719 F.2d 5, 17 (2d Cir. 1983). The RICO conduct must be both the proximate and but for cause of the plaintiff's injury. Lerner, 459 F.3d at 283.
The RICO statute provides only for injury to business or property. The statute does not provide recovery for physical or emotional injuries. Kesick v. Ulloa, No. 1:10-CV- 1248, 2012 WL 2873364, at *9 (N.D.N.Y. July 12, 2012) (quoting Williams v. Dow Chemical Co., 255 F. Supp. 2d 219, 225 (S.D.N.Y. 2003)); Moore v. Guesno, 485 F. Supp. 2d 300, 305 (W.D.N.Y. 2007). In addition, it is well-settled that civil RICO "is an unusually potent weapon—the litigation equivalent of a thermonuclear device. Because the mere assertion of a RICO claim . . . has an almost inevitable stigmatizing effect on those named as defendants, . . . courts should strive to flush out frivolous RICO allegations at an early stage of the litigation." Gruber v. Gilbertson, No. 16-CV-9727, 2019 WL 4458956, at *5 (S.D.N.Y. Sept. 17, 2019) (quoting Katzman v. Victoria's Secret Catalogue, 167 F.R.D. 649, 655 (S.D.N.Y. 1996)) (internal quotations omitted).
Here, Plaintiff has failed to allege any facts whatsoever suggesting that Defendants engaged in a pattern of racketeering activity or were involved in an enterprise which affects interstate or foreign business or property. Plaintiff's cursory references to "conspiracy," "fraud," "laundering," and "scheme" are insufficient.
Additionally, as stated above, the RICO conduct must be both the proximate and but for cause of the plaintiff's injury. The Supreme Court has held that the "proximate cause" required for plaintiff to recover under the RICO statute requires a "direct relation" between the injury asserted and the conduct alleged. Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 268 (1992). The less direct an injury, the more difficult it would be to determine what portion of the damages were attributable to "the RICO violation as distinct from the independent factors." Commercial Cleaning Svcs., LLC v. Colin Svc. Systs., Inc., 271 F.3d 374, 381-82 (2d Cir. 2001) (citing Homes, 503 U.S. at 273.) A link that is "too remote, purely contingent, or indirect is insufficient." Wang v. Yien-Koo-King, No. 18 Civ. 8948, 2019 WL 1763230, at *6 (S.D.N.Y. Apr. 22, 2019) (quoting Empire Merchants, LLC v. Reliable Churchill, LLLP, 902 F.3d 132, 141 (2d Cir. 2018) (quoting Hemi Grp., LLC v. City of New York, 599 U.S. 1, 17 (2010))).
In this case, the complaint cannot remotely meet the proximate cause requirement. The problem in Plaintiff's claim is that the so-called "injury" to "his" "business" and/or "property" all seemingly derive from the 2014 State Court Order, discussed above, not from any alleged RICO conduct.
Therefore, the Court recommends dismissing Plaintiff's civil RICO claim for failure to state a claim on which relief may be granted.
7. Supplemental Jurisdiction
Federal courts have supplemental jurisdiction over state-law claims that are "so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." Kolari v. New York Presbyterian Hosp., 455 F.3d 118, 121-22 (2d Cir. 2006) (citing 28 U.S.C. § 1367(a)). Supplemental jurisdiction is discretionary, and the district court may decline to exercise supplemental jurisdiction if it has dismissed all claims over which it has original jurisdiction. Id. at 122 (citing 28 U.S.C. § 1367(c)(3)); see also Carnegie Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988); First Capital Asset Mgmt., Inc. v. Satinwood, Inc., 385 F.3d 159, 182-84 (2d Cir. 2004) ("The exercise of supplemental jurisdiction is left to the discretion of the district court[.] If the federal claims are dismissed before trial, . . . the state claims should be dismissed as well.").
In this case, the complaint purports to raise various state law claims, including false imprisonment, trespass, and conversion of property. (Dkt. No. 1 at ¶¶ 11, 15-18, 21.) The state law claims are intertwined with the federal claims. However, inasmuch as the Court is recommending dismissal of all federal claims, the Court also recommends that the District Court decline to exercise supplemental jurisdiction over any of Plaintiff's purported state law causes of action.
IV. CONCLUSION
For the reasons discussed, Plaintiff's complaint does not make a short and plain statement showing that he is entitled to relief and, therefore, the Court recommends dismissing the complaint in its entirety pursuant to §1915.
As indicated above, generally before the Court dismisses a pro se complaint or any part of the complaint sua sponte, the court should afford the plaintiff the opportunity to amend at least once, however, leave to re-plead may be denied where any amendment would be futile. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993); see, e.g., Zavalidroga v. Cote, 395 F. App'x 737, 740-41 (2d Cir. 2010) (summary order) (holding the district court did not err in dismissing the pro se complaint filed by Tomas Zavalidroga and Margaret Zavalidroga without leave to amend where leave to amend would be futile) (citing Cuoco, 222 F.3d at 112) ("Although a district court generally should not dismiss a pro se complaint without granting the plaintiff leave to amend, dismissal is appropriate if leave to amend would be futile.").
As previously summarized by Magistrate Judge Baxter in Zavalidroga v. Girouard, No. 6:17-cv-0682 (BKS/ATB) (Dkt. No. 4 at 34-35), Plaintiff has been complaining for years about these incidents, resulting from his conviction or his mother's care, or from the results of the state court's finding regarding her competency, the transfer of her property, and the disposition of that property by her court-appointed guardian. Plaintiff has brought various actions against different defendants, some of which have been named in this action. Each case has been dismissed on the pleadings, with one minor exception when Plaintiff actually sued over his conditions of confinement in Zavalidroga v. Madison Cty., No. 5:17-cv-0117 (DNH/TWD), notwithstanding the opportunity for amendment. (See supra notes 3-8 and accompanying text.)
As set forth above, the complaint in Zavalidroga v. Madison Cty., No. 5:17-cv-0117 (DNH/TWD) (Dkt. Nos. 32, 33) was ultimately dismissed in its entirety pursuant to Local Rule 41.2 (a) and (B) and 10.1(c)(2) and judgment was entered in favor of the defendants.
Inasmuch as better pleading will not cure many of the defects identified above, the Court finds any amendment would be futile and, therefore, recommends the complaint be dismissed in its entirety without leave to amend.
WHEREFORE, based on the findings above, it is hereby
ORDERED that Plaintiff's IFP motion (Dkt. No. 2) is GRANTED for purposes of filing only; and it is further
RECOMMENDED that Plaintiff's complaint (Dkt. No. 1) be DISMISSED in its entirety without leave to amend pursuant to 28 U.S.C. § 1915; and it is further
ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report-Recommendation, along with a copy of the unpublished decision cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
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. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 72, 6(a). Dated: January 14, 2020
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. 6(a)(1)(C).
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge