Terpening v. McGinty

Decision Date28 April 2022
Docket Number1:21-CV-1215 (GTS/CFH)
PartiesTAMMY TERPENING, Plaintiff, v. ANTHONY MCGINTY, in his official and individual capacities, Defendant.
CourtU.S. District Court — Northern District of New York

TAMMY TERPENING, Plaintiff,
v.

ANTHONY MCGINTY, in his official and individual capacities, Defendant.

No. 1:21-CV-1215 (GTS/CFH)

United States District Court, N.D. New York

April 28, 2022


Tammy Terpening Plaintiff pro se.

REPORT-RECOMMENDATION AND ORDER

Christian F. Hummel, U.S. Magistrate Judge.

I. In Forma Pauperis

Plaintiff pro se Tammy Terpening (“plaintiff”) purported to commence this action on November 9, 2021, by filing a complaint. See Dkt. No. 1 (“Compl.”). In lieu of paying this Court's filing fee, she submitted a motion to proceed in forma pauperis (“IFP”). See Dkt. No. 2. The undersigned has reviewed plaintiff's IFP motion and determines that she financially qualifies to proceed IFP for the purpose of filing.[1]

II. Initial Review

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A. Legal Standard

Section 1915[2] of Title 28 of the United States Code directs that, when a plaintiff seeks to proceed IFP, “the court shall dismiss the case at any time if the court determines that . . . the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). It is a court's responsibility to determine that a plaintiff may properly maintain his complaint before permitting him to proceed with his action.

Where, as here, the plaintiff proceeds pro se, “the court must construe his [or her] submissions liberally and interpret them to raise the strongest arguments that they suggest.” Kirkland v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (per curiam) (citation and internal quotation marks omitted). This does not mean the Court is required to accept unsupported allegations that are devoid of sufficient facts or claims. Although detailed allegations are not required at the pleading stage, the complaint must still include enough facts to provide the defendants with notice of the claims against them and the grounds on which these claims are based. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic v. Twombly, 550 U.S. 544, 555-56 (2007). Ultimately, the plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference

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that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citation omitted).

Pro se litigants are “not exempt . . . from compliance with relevant rules of procedural and substantive law[.]” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (citation omitted). Pleading guidelines are set forth in the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”). Specifically, Rule 8 provides that a pleading which sets forth a claim for relief shall contain, among other things, “a short and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). “The purpose . . . is to give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer, prepare an adequate defense and determine whether the doctrine of res judicata is applicable.” Flores v. Graphtex, 189 F.R.D. 54, 55 (N.D.N.Y. 1999) (internal quotation marks and citations omitted). Rule 8 also requires the pleading to include “a short and plain statement of the grounds for the court's jurisdiction” and “a demand for the relief sought . . . .” FED. R. CIV. P. 8(a)(1), (3). Although “[n]o technical form is required, ” the Federal Rules make clear that each allegation contained in the pleading “must be simple, concise, and direct.” Id. at 8(d)(1).

Further, Rule 10 provides in pertinent part that:

[a] party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. A later pleading may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity, each claim founded on a separate transaction or occurrence - and each defense other than a denial - must be stated in a separate count or defense

FED. R. CIV. P. 10(b). This serves the purpose of “providing] an easy mode of identification for referring to a particular paragraph in a prior pleading[.]” Flores,

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189 F.R.D. at 55 (internal quotation marks and citations omitted). A complaint that fails to comply with the pleading requirements “presents far too [] heavy [a] burden in terms of defendants' duty to shape a comprehensive defense and provides no meaningful basis for the Court to assess the sufficiency of their claims.” Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996). The Second Circuit has held that “[w]hen a complaint does not comply with the requirement that it be short and plain, the court has the power, on its own initiative . . . to dismiss the complaint.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (citation omitted). However, “[dismissal . . . is usually reserved for those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.” Id. (citation omitted). If dismissal is warranted and the plaintiff is pro se, the court generally affords the plaintiff leave to amend the complaint. See Simmons v. Abruzzo, 49 F.3d 83, 86-87 (2d Cir. 1995).

B. Plaintiff's Complaint[3]

Plaintiff asserts that “Anthony McGinty of Ulster County Family Court violated” her Fourteenth Amendment Equal Protection and Due Process rights, the Americans with Disabilities Act (“ADA”), and Title VII. Compl. at 6; 2, 5. Plaintiff asserts that in September 12 and December 12, 2019, custody orders, Judge McGinty granted her children's father visitation and custody rights despite the father's “extensive criminal background to include drug & alcohol . . . while under an investigation of child sex abuse.” Id. at 2-3. Plaintiff contends that the September 12, 2019, visitation order

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“caused loss of income and acute stress which resulted in a decline in [her] good health causing high blood pressure, sleep disturbance attributing to two strokes.” Id. at 2. As a result, plaintiff was hospitalized and requested that McGinty “adjourn [a] hearing[.]” Id. at 4. Plaintiff asserts that Judge McGinty denied her “reasonable accommodation and modification rights[.]” Id. at 3, 13-14. Judge McGinty also allegedly denied plaintiff's request for Judge McGinty to recuse himself. See id. at 6. More specifically, Judge McGinty “deprived” plaintiff of “a fair trial to prove [her] custody rights/[s]witching custody without a fair hearing and without a significant change in circumstance.” Id. Rather, while plaintiff “was hospitalized, ” a hearing was held between her sister, whom she had left her children with, and the children's father whereby Judge McGinty granted the father temporary custody. Id. at 3. Judge McGinty gave the father temporary custody “despite [plaintiff's] attorney [being] present and requesting an adjournment[]” Id. Plaintiff then left “the hospital against medical advice to protect [her] children[.]” Id. Plaintiff also contends that Judge McGinty's “December 12, 2019[, ] order had the potential to have resulted in further emotional, physical and sexual abuse to [her] daughters.” Id. “On or about January 2020 both parents vacated the order that McGinty made on December 12, 2019[, ] due to the fact that it was against both [of their] wishes and the children remained home with [plaintiff].” Id. at 4.

Plaintiff generally asserts that Judge “McGinty is well known to . . . be against mothers who suffer from abusers” and that his conduct was “gender biased, unconstitutional [and had a] disparate impact on women and children[.]” Compl. at 3-4. “Plaintiff [] seeks declaratory relief under Title VII declaring the [defendants' nonevidence, gender biased policies, practices, procedures and standards for deciding

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legally entitled economic, property ownership and custody rights in Custody Orders in contested cases family court Judge decided and enforce[d] are unconstitutional.” Id. at 5. Plaintiff also seeks “compensatory damages, punitive damages and attorney's fees [] [d]ue to inflicting willful, unlawful financial, psychological, mental and emotional injury[.]” Id. at 5, 13-15. Finally, plaintiff seeks injunctive relief “barring [Judge McGinty] from continuing [his] illegal acts[.]” Id. at 15.

C. Analysis[4]

Plaintiff asserts violations of her Fourteenth Amendment rights to Due Process and Equal Protection pursuant to 42 U.S.C. § 1983, the ADA, and Title VII. Plaintiff also briefly notes in one sentence of her fifteen-page complaint that she is seeking to bring “a claim, seemingly pursuant to 42 U.S.C. § 1983, based on a violation of the Thirteenth Amendment[.]” Compl. at 7. Plaintiff does not assert any facts that plausibly suggest illegal confinement in violation of the Thirteenth Amendment and, regardless, “[a] habeas corpus petition, not a § 1983 suit, is the appropriate vehicle by which to seek relief from illegal confinement.” Godley v. Onondaga Cnty., No. 6:16-CV-01419 (DNH/TWD), 2017 WL 2805162, at *6, n.4 (N.D.N.Y. Jan. 6, 2017), report and recommendation adopted, 2017 WL 2804944 (N.D.N.Y. June 28, 2017) (citations omitted); see also Moore-Beidl v. Beaudoin, 553 F.Supp. 404, 406 (N.D.N.Y. 1981) (dismissing habeas petition where a mother alleged “no restraints upon her person other than the fact that she is forc[ibly] being prevented from being together with her youngest son.”).

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1. Section 1983 Claims

“[O]fficials acting in a judicial capacity are entitled to absolute immunity against § 1983 actions . . . .” Montero v. Travis, 171 F.3d 757, 760 (2d Cir. 1999) (per curiam). “Judicial immunity is immunity from suit, not just immunity from the assessment of damages.” Montes v. O'Shea, No. 1:21-CV-303 (DNH/ATB), 2021 WL 1759853, at *4...

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