UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

----------------------------------------X

:

ESTERVINA PAULINO

 Plaintiff, :

-against- : 

GLADYS CARRION, as Commissioner of :

the New York State Office of Children 

and Family Services, and THOMAS R. : 07 CV 05773

FRIEDEN, M.D., as Commissioner of the 

New York City Department of Health and : Filed Electronically

Mental Hygiene 

Defendants, :

----------------------------------------X

 DEFENDANTS’ OBJECTIONS TO THE MAGISTRATE JUDGE’S REPORT AND

RECOMMENDATION

ANDREW M. CUOMO

Attorney General of the

 State of New York

Attorney for State Defendant

120 Broadway - 24th Floor

New York, New York 10271

George A. Alvarez

Assistant Attorney General

 Of Counsel

212-416-8663

Marcia McCree

Legal Intern

(on the brief)

Case 1:07-cv-05773-LAK-GWG Document 27 Filed 07/17/2008 Page 1 of 21
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

----------------------------------------X

:

ESTERVINA PAULINO

 Plaintiff, :

-against- : 

GLADYS CARRION, as Commissioner of :

the New York State Office of Children 

and Family Services, and THOMAS R. : 07 CV 05773

FRIEDEN, M.D., as Commissioner of the 

New York City Department of Health and : Filed Electronically

Mental Hygiene 

Defendants, :

----------------------------------------X

 DEFENDANTS’ OBJECTIONS TO THE MAGISTRATE JUDGE’S REPORT AND

RECOMMENDATION

PRELIMINARY STATEMENT

Defendant GLADYS CARRION, as Commissioner of the New York

State Office of Children and Family Services(“State defendant” or

"OCFS") respectfully objects to the Report and Recommendation

issued by Magistrate Judge Gabriel W. Gorenstein, filed July 2,

2008 (“RR”), to the extent that it recommended the denial of

State defendant’s motion for judgement on the pleadings pursuant

to Fed. R. Civ. Proc. Rule 12(c).

ALLEGATIONS OF THE COMPLAINT

Plaintiff is a state-registered family day care provider,

and provides childcare in her apartment. Cplt ¶ 7. Such

providers are subject to regulatory supervision by the New York

State Office of Children and Family Services (OCFS), and State

Case 1:07-cv-05773-LAK-GWG Document 27 Filed 07/17/2008 Page 2 of 21
2

Defendant Carrion is the Commissioner of OCFS. Cplt ¶ 15. On

February 20, 2007, OCFS charged plaintiff with violations of

State regulations as a result of an incident on October 5, 2006,

in which plaintiff spilled scalding hot coffee on a three year

old child’s face and abdomen “resulting in first and second

degree burns to the child.” Statement of Charges, dated February

20, 2006 (referenced in Cplt ¶¶ 33-35). 

According to plaintiff, she was offered a stipulation of

settlement by State defendant and, in order “to avoid an

administrative hearing,” id. ¶ 34, plaintiff “signed the

stipulation and submitted it with a check for [payment of the] 

$400 [fine],” after first consulting with a bi-lingual manager of

City defendant and being advised, in Spanish, to sign the

stipulation. id. ¶ 35.

Plaintiff brought this action pursuant to 42 U.S.C. § 1983,

seeking a judgment, inter alia, “[v]acating the stipulation of

settlement and directing OCFS to hold a hearing on the

allegations in the Statement of Charges.” Cplt at 11 (¶ d). 

The gravamen of plaintiff’s case is her claim that defendants

violated her due process rights by failing to translate the

stipulation into Spanish and her allegation that for this reason

she did not understand the document. See Cplt ¶ 1. While

plaintiff’s prior course of conduct would appear to be

inconsistent with this claim, even assuming, arguendo, that it is

Case 1:07-cv-05773-LAK-GWG Document 27 Filed 07/17/2008 Page 3 of 21
3

correct, under applicable law, defendants should be granted

judgment on the pleadings.

THE REPORT AND RECOMMENDATION

In his Report and Recommendation, Magistrate Judge

Gorenstein recommended that State defendant’s motion be denied in

its entirety and that City defendant’s motion be granted.

ARGUMENT

Point I

SECTION 1983 DOES NOT CONFER JURISDICTION TO

A DISTRICT COURT BUT MUST RELY INDIRECTLY ON

CONSTITUTIONAL OR STATUTORY PROVISIONS, AND A

COURT MUST FIRST DETERMINE WHETHER CONGRESS

INTENDED TO CREATE A FEDERAL RIGHT

ENFORCEABLE UNDER § 1983 OR DIRECTLY UNDER

THE CONSTITUTION OR A FEDERAL STATUTE

In recommending denial of State defendant’s motion, the

Magistrate Judge erroneously found that State defendant “cites

not a single case or provision suggesting that the Court lacks

subject matter jurisdiction over the claims under 42 U.S.C. §

1983,” since plaintiff “concedes ... that she does not seek to

assert a claim directly under Title VI,” and her “complaint is

clear that her claims for relief are based only on 42 U.S.C. §

1983 and Article 78 of the Civil Practice Law and Rules,” RR at

6-7, since § 1983 does not itself confer jurisdiction and it

requires the same analysis of Congressional intent required of

suits brought directly under a statute. The Magistrate Judge did

not address the gravamen of State defendant’s motion, namely that

Case 1:07-cv-05773-LAK-GWG Document 27 Filed 07/17/2008 Page 4 of 21
4

because plaintiff failed to set forth a cognizable federal claim,

the federal action should be dismissed and the state law claims

should be the subject of state court proceedings.

A. Section 1983 Does Not Confer Jurisdiction to a District

Court but must Rely Indirectly on Provisions in the

Constitution or Laws of the United States 

A § 1983 claim does not give rise to direct recovery under

the Constitution or laws of the United States or confer

jurisdiction to a district court but must rely indirectly on

provisions in the Constitution or laws of the United States to

grant jurisdiction and confer recovery. Chapman v. Houston

Welfare Rights Org., 441 U.S. 601, 606-618, 995 S.Ct. 1995, 1910-

1916 (1978) (A § 1983 claim is not jurisdictional, ... Standing

alone, § 1983 clearly provides no protection for civil rights

since § 1983 does not provide any substantive rights at all);

accord Pa. Pharmacists Ass'n v. Houstoun, 283 F.3d 521 (3d. Cir.

2001) (“a plaintiff alleging a violation of a federal statute may

not proceed under § 1983 unless 1) the statute creates

‘enforceable rights, privileges, or immunities within the meaning

of § 1983’ and 2) Congress has not ‘foreclosed such enforcement

of the statute in the enactment itself.’”). 

Here, the Magistrate Judge’s finding that plaintiff’s

“claims for relief are based only on 42 U.S.C. § 1983”, RR at 7

(emphasis added), is clearly insufficient to deny State

defendant’s motion where well established law shows that

Case 1:07-cv-05773-LAK-GWG Document 27 Filed 07/17/2008 Page 5 of 21
5

plaintiff has no federal claim under § 1983. Indeed, the

Magistrate Judge notes that plaintiff concedes “that she does not

seek to assert a claim directly under Title VI,” and he does not

cite any other Constitutional or federal statutory authority that

would support plaintiff’s assertion that she may maintain a

federal action.

B. A Court must First Determine Whether Congress Intended to

Create a Federal Right Enforceable under § 1983, No less

than What Is Required for Congress to Create New Rights

Enforceable under a Statute 

The Supreme Court has decried the “confusion” that has led

some courts to allow plaintiffs to enforce a statute under § 1983

with “something less than what is required for a statute to

create rights enforceable directly from the statute itself.” 

Gonzaga University v. Doe, 536 U.S. 273, 283, 122 S.Ct. 2268,

2275 (2002). Rather,“the inquiries overlap in one meaningful

respect - in either case we must first determine whether Congress

intended to create a federal right.” Id. (emphasis in original). 

In sum, if Congress wishes to create new

rights enforceable under § 1983, it must do

so in clear and unambiguous terms - no less

and no more than what is required for

Congress to create new rights enforceable

under an implied private right of action.

Id. at 290, 122 S.Ct. at 2279. 

As stated in State defendant’s memorandum of law in support

of her motion, Mem. at 4, the Supreme Court held that regulations

promulgated under Title VI, § 602 – such as 45 C.F.R. § 80.3,

Case 1:07-cv-05773-LAK-GWG Document 27 Filed 07/17/2008 Page 6 of 21
 Whether or not a private right of action exists impacts a 1

court’s subject matter jurisdiction. See Stoneridge Investment

Partners, LLC v. Scientific Atlanta, Inc., __ U.S. __, 128 S.Ct.

751,772 (2008)(“the Judiciary’s recognition of an implied private

right of action ... conflicts with the authority of Congress

under Art. III to set the limits of federal

jurisdiction.”[internal quotation marks and citations omitted]);

see also Gonzales v. L’Oreal USA, Inc., 488 F. Supp.2d 181,

185(S.D.N.Y. 2007)(“[t]he Supreme Court has noted that, in the

absence of a private right of action, a federal court has subject

matter jurisdiction over a claim only if ‘the plaintiff’s right

to relief necessarily depends on resolution of a substantial

question of federal law.’”)(quoting Franchise Tax Bd. v. Constr

Laborers Vacation Trust, 463 U.S. 1, 28, 1035, S.Ct. 2841, 2855

(1983).

6

relied upon by plaintiffs (Cplt. ¶ 11) – do not display Congress’

intent to create a private right of action and therefore no such

1

right of action exists. Alexander v. Sandoval, 532 U.S. 275, 293,

121 S.Ct. 1511, 1523 (2001). 

Significantly, the Supreme Court also noted that remedial

schemes such as that found in § 602 “foreclose a private cause of

action” under 42 U.S.C. § 1983. 532 U.S. at 290, 121 S.Ct. at

1522 (citing Middlesex County Sewerage Authority v. National Sea

Clammers Ass’n, 453 U.S. 1, 19-20, 101 S.Ct. 2615, 2625-2627

[when Congress forecloses private enforcement of federal statute

which provides its own enforcement procedure, such “may not be

bypassed by bringing suit directly under § 1983"]).

Therefore, federal courts cannot entertain a suit brought

pursuant § 1983 and based on Title VI, as the Magistrate Judge’s

Report and Recommendation implies, any move than a suit brought

directly under Title VI.

Case 1:07-cv-05773-LAK-GWG Document 27 Filed 07/17/2008 Page 7 of 21
7

Point II

NOTWITHSTANDING THAT IT IS PLAINTIFF’S BURDEN

OF PROVING SUBJECT MATTER JURISDICTION BY A

PREPONDERANCE OF THE EVIDENCE, STATE

DEFENDANT CITES TO SEVERAL CASES AND

PROVISIONS THAT DEMONSTRATE THE COMPLAINT

FAILS TO ADEQUATELY PLEAD A BASIS FOR FEDERAL

RELIEF AND THUS FAILS TO SHOW SUBJECT MATTER

JURISDICTION

 

Magistrate Judge Gorenstein further erred in finding that

State defendant “cites not a single case or provision suggesting

that the Court lacks subject matter jurisdiction over the claims

under 42 U.S.C. § 1983,” RR at 6, because such conclusion is both

legally and factually incorrect. If, as State defendant argues,

there is no cognizable federal claim, there is no basis for this

action in federal court. 

A. Plaintiff has the Burden of Proving Subject Matter

Jurisdiction by a Preponderance of the Evidence 

As a preliminary matter, the Magistrate Judge has

inappropriately shifted the burden of proving subject matter

jurisdiction from plaintiff to State defendant. See Aurecchione

v. Schoolman Transp. System, Inc., 426 F.3d 635, 638 (2d Cir.

2005)(with regards to a 12(b)(1) motion to dismiss, “[t]he

plaintiff bears the burden of proving subject matter jurisdiction

by a preponderance of the evidence.”) Further, “[W]hen the

question to be considered is one of a federal court, jurisdiction

must be shown affirmatively, and that showing is not made by

drawing from the pleadings inferences favorable to the party

Case 1:07-cv-05773-LAK-GWG Document 27 Filed 07/17/2008 Page 8 of 21
8

asserting it.” Shipping Financial Services Corp. v. Drakos, 140

F.3d 129, 131 (2d Cir. 1998).

Here, the Magistrate Judge mistakenly ruled that State

defendant was required to establish the absence of subject matter

jurisdiction, as opposed to scrutinizing the plaintiff’s failure

to make a showing that she had pleaded a basis for federal

relief. RR at 6. The Magistrate Judge appears to find subject

matter jurisdiction based “only” on § 1983, without analysis of

the legal deficiencies in plaintiff’s pleading of a Federal

Statutory or Constitutional right that plaintiff was allegedly

deprived of. State defendant’s motion showed that no such claim

pertains, and thus there is no basis for finding that § 1983

provides a federal forum here. 

B. A Review of State Defendant’s Memorandum of Law Reveals

Citation to Several Cases and Provisions That Demonstrate

that there is no Cognizable Federal claim and thus no Ground

for Subject Matter Jurisdiction 

State defendant’s memorandum of law included citation to

several cases and provisions that demonstrate the complaint lacks

subject matter jurisdiction. Indeed, the very first line of

State defendant’s first point states:

This Court lacks subject matter jurisdiction

over this action. ”The first inquiry in any

§ 1983 suit ... is whether the plaintiff has

been deprived of a right secured by the

Constitution and laws.” Baker v. McCollan,

443 U.S. 137, 140 (1979) (internal quotation

marks omitted). 

Case 1:07-cv-05773-LAK-GWG Document 27 Filed 07/17/2008 Page 9 of 21
9

Mem. at 3-4 (emphasis added). State defendant then goes on to

refute the applicability of the statutes, regulations and other

provisions cited by plaintiff. Mem. at 4 (discussing merits of

Executive Order 13166, 68 Fed. Reg. 47311, and 45 C.F.R. § 80.3

cited by plaintiffs).

State defendant then affirmatively cites the Alexander case

for the proposition that a private federal right of action can

not be premised on regulations like those cited by plaintiff (see

discussion, Point I, supra, and various Second Circuit and

district court cases that hold that plaintiff may not base her

claims directly on the Due Process clause. Mem. at 5-7.

State defendant ends her first point by demonstrating that

she is actually in compliance with the “authorities” cited by

plaintiff. Mem. at 7.

Therefore, contrary to the Magistrate Judges’ Report and

Recommendation, State defendant indeed cited authority showing

that since there is no cognizable federal right to base a claim

for relief under section 1983, there is no platform for the

exercise of federal jurisdiction.

Point III

THE COMPLAINT IS FRIVOLOUS IN LIGHT OF THE

FAILURE TO STATE A BASIS FOR A FEDERAL CLAIM

WHETHER UNDER TITLE VI PURSUANT TO SECTION

1983 OR DIRECTLY UNDER THE DUE PROCESS CLAUSE

The Magistrate Judge also erred in finding that State

Defendant’s motion should be denied because she failed to show

Case 1:07-cv-05773-LAK-GWG Document 27 Filed 07/17/2008 Page 10 of 21
10

that the federal claim under 42 U.S.C. § 1983 is frivolous. RR

at 8.

First, as discussed in Point I, supra, the Magistrate Judge

makes no determination as to what the alleged “federal claim

under 42 U.S.C. § 1983" actually is. See Chapman, 441 U.S. at

606-618 (§ 1983 claim does not confer jurisdiction, but must rely

indirectly on provisions in the Constitution or laws of the

United States).

Second, after citing the proposition restated in the block

quote in Point II, supra, State defendant’s memo of law states

that “[h]ere, plaintiff’s pleadings fail to set forth a claim of

deprivation of plaintiff’s rights under the Constitution or

federal law.” Mem. at 4. In her reply memo, State defendant

states that “plaintiff makes a major concession to State

defendant’s primary [subject matter jurisdiction] argument,”

engages in “circular” reasoning and “ignores the law of the very

cases she relies on.” Thus, State defendant plainly asserted

that plaintiff made no showing of a basis for a federal claim,

and the Magistrate Judge erred in denying State defendant’s

motion.

Further, the case at bar can be distinguished from Bell v.

Hood, 327 U.S. 678, 66 S.Ct. 773 (1946)(cited in the Report and

Recommendation at 7), which found plaintiff’s case not to be

frivolous because it raised a matter of first impression, id at

Case 1:07-cv-05773-LAK-GWG Document 27 Filed 07/17/2008 Page 11 of 21
11

683-684 (“whether federal courts can grant money recovery for

damages said to have been suffered as a result of federal

officers violation the Fourth and fifth Amendments ... has never

been specifically decided by this Court”). Moreover, a claim is

“wholly insubstantial” or “obviously frivolous” if its

unsoundness clearly results from previous decisions. Hagans v.

Lavine, 415 U.S. 528, 538, 94 S.Ct. 1372, 1379-1380 (1974). 

Here, this case is not one of first impression, and it is

frivolous in light of the cases cited or otherwise referred to in

State, defendant’s motion or at Point I, supra (regarding Title

VI vis-a-vis Section 1983), and Point II, supra (regarding the

Due Process Clause), all showing that plaintiff’s purported

federal claims are unfounded.

Point IV

SINCE THE STIPULATION SOUGHT TO BE

INVALIDATED IS THE PRODUCT OF A STATE

ADMINISTRATIVE PROCEEDING, THE MAGISTRATE

JUDGE ERRED IN HOLDING THAT PLAINTIFF IS NOT

REQUIRED TO SEEK THE RELIEF OF RECISION IN

STATE COURT 

The Magistrate Judge further erred in finding that “State

defendant next argues that this Court lacks ‘jurisdiction’ over

plaintiff’s ‘state law contract claim for rescission’” should be

denied because “[t]he complaint ... is devoid of any assertion

that it is making a claim for recision under ‘state contract’

law.” RR at 8. This finding both ignores the facts as pleaded

and misapprehends the law.

Case 1:07-cv-05773-LAK-GWG Document 27 Filed 07/17/2008 Page 12 of 21
This prohibition, however, should not apply to a 2

stipulation of settlement. See Wright v. Eastman Kodak Company,

445 F. Supp. 2d 314, 317(W.D.N.Y. 2006)(“‘it is well settled that

stipulation s of settlement are favored by the courts, and are

not to be lightly cast aside’”)(quoting Brock v. Brock, 256

A.D.2d 375, 376 (2d Dep’t 1998).

12

Factually, as stated in State defendant’s memorandum of law:

Plaintiff’s basic argument sounds in contract

law, i.e., there was no “meeting of the

minds” because she did not understand the

terms of the stipulation since defendants

failed to translate the stipulation into

Spanish. See Cplt ¶ 1. Additionally,

plaintiff claims the stipulation was in

violation of state law. See Cplt ¶¶ 33

(stipulation imposed a fine “[i]n violation

of OCFS’ own regulations, [because the

stipulation] did not give Ms. Paulino any

notice of her right of a hearing.” [emphasis

added]), 16 (citing 18 N.Y.C.R.R §

414.3(f)(2), prohibiting OCFS from imposing a

fine without a hearing ) and ¶ 2 (“Plaintiff 2

also brings a pendent state law claim under

New York Civil Practice Law and Rules Article

78").

Mem. at 9-10.

Legally, the Magistrate Judge failed to recognize the

fundamental principle stated in Rumain v. Baruch College of the

City University of New York, 2007 WL 1468885 (S.D.N.Y.), a Title

VII case of pregnancy discrimination in which plaintiff sought,

inter alia, vacatur of a stipulation, where this Court stated

that:

this relief cannot be obtained on plaintiff’s

current motion. In addressing this question,

we distinguish ... between recision as a

remedy that plaintiff may seek on a commonlaw contract claim (which, as we have noted,

Case 1:07-cv-05773-LAK-GWG Document 27 Filed 07/17/2008 Page 13 of 21
 Additionally, the Magistrate Judge expresses “confusion” 3

over whether to dismiss “any purported pendent Article 78 claim,”

which the Magistrate Judge admits was part of “the complaint’s

assertion[s],” because “State defendant’s brief is unclear as to

whether she is seeking such relief.” RR at 9-10. To the extent

that State defendant stated that “[s]ince plaintiff’s alleged due

process claims are a thinly veiled attempt to have a federal

court hear what is properly characterized as a state law claim

based on of an administrative proceeding, the proper venue for

plaintiff’s claims should be an article 78 proceeding,” Mem. at

10, that issue was - and is - properly presented.

13

is barred in this Court by the Eleventh

Amendment) and vacatur of the settlement

agreement and judgement in the 1998 lawsuit,

which may be available to a plaintiff in

federal court under Rule 60(b) [by the

Federal judge who entered it in a separate

action]. 

2007 WL 1468885, *3. 

Here, since the stipulation at issue in this case is the

product of a State administrative proceeding, and not a federal

court order, there is no basis for the exercise of federal

jurisdiction over this contact based claim.3

Point V

THE MAGISTRATE JUDGE’S REFERENCE TO LOCAL

CIVIL RULE 7.1 WAS MISPLACED BECAUSE STATE

DEFENDANT PROPERLY PRESENTED THE ARGUMENT

THAT THE COMPLAINT FAILED TO STATE COGNIZABLE

FEDERAL CLAIM AND DID NOT PREJUDICE PLAINTIFF

OR THE COURT

Lastly, the Magistrate Judge erred in relying on Local Civil

Rule 7.1 to deny the alternative remedy of dismissal for failure

to state a cause of action because the rule purportedly supports

the proposition that “a request to dismiss on the merits for

Case 1:07-cv-05773-LAK-GWG Document 27 Filed 07/17/2008 Page 14 of 21
14

failure to state a claim ... may not be hidden within a request

to dismiss for lack of subject matter jurisdiction,” RR at 8, n.

1, since, inter alia, there was no finding that there was any

willful failure to comply with Local Civil Rule 7.1.

Initially, a Court may grant dismissal for lack of subject

matter jurisdiction or, in the alternative, for failure to state

a cause of action. See generally Jemzura v. Belden, 281 F. Supp.

200, 205 (N.D.N.Y. 1968)(“[n]evertheless, lest it be said that

the Court should assume jurisdiction to determine whether the

complaint fails to states a cause of action upon which relief can

be granted, Bell v. Hood [327 U.S.] at 681-683 ... the Court in

the alternative holds that the instant complaint fails to state a

claim upon which relief can be granted and is dismissed”).

Rule 7.1 states, in pertinent part, that:

all motions ... shall be supported by a

memorandum of law, setting forth the points

and authorities relied upon in support of ...

the motion, and divided, under appropriate

headings, into as many parts as there are

points to be determined. Willful failure to

comply with this rule may be deemed

sufficient cause for the denial of a motion.

Id. (emphasis added). Thus, the failure to comply requires a

finding that the such failure was “willful,” and, in any event,

denial of the motion is not mandatory. Indeed, courts have used

their discretion to forgo denial of motions pursuant to 7.1 in

cases where the Court was able to “glean[ a party’s] arguments”

Case 1:07-cv-05773-LAK-GWG Document 27 Filed 07/17/2008 Page 15 of 21
15

from other sources (such as affirmations), Ames v. Jillian

Mechanical Corp., 2008 WL 858992*3 (E.D.N.Y.); because a party

“has not been prejudiced by [another party’s] failure to file a

memorandum of law,” Paladino v. Potter, 2007 WL 4255247*2

(E.D.N.Y.); or just “in the interests of thoroughness,”

Healthfirst, Inc. . Medco Health Solutions, Inc., 2006 WL

3711567*3 (S.D.N.Y.). 

Here, the Magistrate Judge did not indicate that State

defendant’s failure to comply with 7.1 was willful, nor that the

plaintiff was in any way prejudiced. Further, the Report and

Recommendation suggests that the Magistrate Judge gleaned State

defendant’s argument. RR at 8, n.1 (“[i]t is possible that the

State defendant intended this portion of her brief to constitute

a motion to dismiss the complaint for failure to state a claim

insofar as it alleges a due process violation under section 1983

based on the failure to provide translation services”). A fair

review of State defendant’s motion shows that the argument that

plaintiff failed to state a cognizable claim was presented for

decision, and that the Magistrate Judge mistakenly found

otherwise. Accordingly, this court should reach that issue and

overturn the Magistrate Judge’s recommendation.

Case 1:07-cv-05773-LAK-GWG Document 27 Filed 07/17/2008 Page 16 of 21
16

Consequently, it is respectfully submitted that the

Magistrate Judge’s denial of State defendant’s motion on the

alternative basis of failure to state a claim upon which relief

can be granted should not be upheld.

CONCLUSION

For the reasons stated herein, the State defendant

respectfully objects to the Magistrate Judge’s Report and

Recommendation in that it recommended denying her motion for

judgement on the pleadings pursuant to Fed. R. Civ. Proc. Rule

12(c), requests that the Court grant that motion and grant such

further relief as the Court deems just and proper.

Dated: New York, New York

July 17, 2008

Respectfully submitted,

ANDREW CUOMO, 

 Attorney General

of the State of New York

Attorney for State defendant

 By: 

____/S/___________________

George A. Alvarez (GA2335)

Assistant Attorney General

120 Broadway, 24th Floor

New York, New York 10271

212-416-8663

Marcia McCree

Legal Intern

(on the brief)

Case 1:07-cv-05773-LAK-GWG Document 27 Filed 07/17/2008 Page 17 of 21
i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................... iii

PRELIMINARY STATEMENT..................... 1

ALLEGATIONS OF THE COMPLAINT . . . . . . . . . . . . . . . . . 1

THE REPORT AND RECOMMENDATION . . . . . . . . . . . . . . . . . 3

ARGUMENT ........................... 3

Point I - SECTION 1983 DOES NOT CONFER JURISDICTION 

TO A DISTRICT COURT BUT MUST RELY INDIRECTLY 

ON CONSTITUTIONAL OR STATUTORY PROVISIONS, 

AND A COURT MUST FIRST DETERMINE WHETHER 

CONGRESS INTENDED TO CREATE A FEDERAL RIGHT 

ENFORCEABLE UNDER § 1983 OR DIRECTLY UNDER 

THE CONSTITUTION OR A FEDERAL STATUTE . . . . . 3

A. Section 1983 Does Not Confer Jurisdiction 

to a District Court but must Rely Indirectly 

on Provisions in the Constitution or Laws of 

the United States .................... 4

B. A Court must First Determine Whether Congress 

Intended to Create a Federal Right Enforceable 

under § 1983, No less than What Is Required for 

Congress to Create New Rights Enforceable under 

a Statute ........................ 5

Point II - NOTWITHSTANDING THAT IT IS PLAINTIFF’S 

BURDEN OF PROVING SUBJECT MATTER 

JURISDICTION BY A PREPONDERANCE OF 

THE EVIDENCE, STATE DEFENDANT CITES 

TO SEVERAL CASES AND PROVISIONS THAT 

DEMONSTRATE THE COMPLAINT FAILS TO 

ADEQUATELY PLEAD A BASIS FOR FEDERAL 

RELIEF AND THUS FAILS TO SHOW SUBJECT 

MATTER JURISDICTION . . . . . . . . . . . . . . 7

A. Plaintiff has the Burden of Proving Subject Matter

Jurisdiction by a Preponderance of the Evidence . . . . . 7

Case 1:07-cv-05773-LAK-GWG Document 27 Filed 07/17/2008 Page 18 of 21
ii

Page

B. A Review of State Defendant’s Memorandum 

of Law Reveals Citation to Several Cases 

and Provisions That Demonstrate that there 

is no Cognizable Federal claim and thus no 

Ground for Subject Matter Jurisdiction . . . . . . . . . . 8

Point III - THE COMPLAINT IS FRIVOLOUS IN 

LIGHT OF THE FAILURE TO STATE 

A BASIS FOR A FEDERAL CLAIM 

WHETHER UNDER TITLE VI PURSUANT 

TO SECTION 1983 OR DIRECTLY UNDER 

THE DUE PROCESS CLAUSE . . . . . . . . . . . . . 9

Point IV - SINCE THE STIPULATION SOUGHT TO BE 

INVALIDATED IS THE PRODUCT OF A STATE 

ADMINISTRATIVE PROCEEDING, THE MAGISTRATE 

JUDGE ERRED IN HOLDING THAT PLAINTIFF IS 

NOT REQUIRED TO SEEK THE RELIEF OF RECISION 

IN STATE COURT ............... 11

Point V - THE MAGISTRATE JUDGE’S REFERENCE TO 

LOCAL CIVIL RULE 7.1 WAS MISPLACED 

BECAUSE STATE DEFENDANT PROPERLY 

PRESENTED THE ARGUMENT THAT THE 

COMPLAINT FAILED TO STATE COGNIZABLE 

FEDERAL CLAIM AND DID NOT PREJUDICE 

PLAINTIFF OR THE COURT . . . . . . . . . . . . 13

CONCLUSION ......................... 16

Case 1:07-cv-05773-LAK-GWG Document 27 Filed 07/17/2008 Page 19 of 21
iii

TABLE OF AUTHORITIES

Cases Page

Ames v. Jillian Mechanical Corp.,

2008 WL. 8589923 (E.D.N.Y.) . . . . . . . . . . . . . . 15

Aurecchione v. Schoolman Transport System, Inc.,

426 F.3d 635 (2d Cir. 2005)(with regards to a 12(b)(1) . 7

Baker v. McCollan,

443 U.S. 137 (1979)................... 8

Bell v. Hood,

327 U.S. 678 (1946).................. 10

Chapman v. Houston Welfare Rights Organization,

441 U.S. 601 (1978)................. 4, 10

Gonzaga University v. Doe,

536 U.S. 273 (2002)................... 5

Gonzales v. L'Oreal USA, Inc.,

488 F. Supp. 2d 181 (S.D.N.Y. 2007)S . . . . . . . . . . 6

Hagans v. Lavine,

415 U.S. 528 (1974).................. 11

Healthfirst, Inc. . Medco Health Solutions, Inc.,

2006 WL. 37115673 (S.D.N.Y.) . . . . . . . . . . . . . 15

Jemzura v. Belden,

281 F. Supp. 200 (N.D.N.Y. 1968) . . . . . . . . . . . 14

Middlesex County Sewerage Authority v.

 National Sea Clammers Association,

453 U.S. 1 ....................... 6

Pa. Pharmacists Association v. Houstoun,

283 F.3d 521 (3d. Cir. 2001) . . . . . . . . . . . . . . 4

Paladino v. Potter,

2007 WL. 42552472 (E.D.N.Y.) . . . . . . . . . . . . . 15

Rumain v. Baruch College of the

 City University of New York,

 2007 WL. 1468885 (S.D.N.Y.) . . . . . . . . . . . 12

Case 1:07-cv-05773-LAK-GWG Document 27 Filed 07/17/2008 Page 20 of 21
iv

Cases Page

Shipping Financial Services Corp. v. Drakos,

 140 F.3d 129 (2d Cir. 1998) . . . . . . . . . . . . . . . 8

Stoneridge Investment Partners, LLC v.

 Scientific Atlanta, Inc.,

128 S. Ct. 751 (2008).................. 6

Wright v. Eastman Kodak Company,

445 F. Supp. 2d 314 (W.D.N.Y. 2006) . . . . . . . . . . 12

STATUTES 

45 C.F.R. § 80.3 ..................... 5, 9

Executive Order 13166, 68 Fed. Reg. 47311 . . . . . . . . . . 9

42 U.S.C. § 1983 .................... passim

07 CV 05773.......................... 1

18 N.Y.C.R.R §414.3(f)(2) . . . . . . . . . . . . . . . . . . 12

§ 602............................. 6

Fed. R. Civ. Proc. Rule 12(c) . . . . . . . . . . . . . . 1, 16

Rule 7.1 ........................ 13, 14

Rule 60(b) ......................... 13

Title VI .......................... 6

Title VI, § 602 -...................... 5

Title VII ......................... 12

Case 1:07-cv-05773-LAK-GWG Document 27 Filed 07/17/2008 Page 21 of 21