Tota v. New York State Department of Motor Vehicles et al
| Anthony Samuel Tota |
| New York State Department of Motor Vehicles, Mark J.F. Schroeder, Erick Johanson and City of Jamestown, New York State 14701 |
| 1:2023cv01309 |
| December 20, 2023 |
| US District Court for the Western District of New York |
| Lawrence J Vilardo |
| Civil Rights: Other |
| 42 U.S.C. § 1983 Civil Rights Act |
| Plaintiff |
Docket Report
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This docket was last retrieved on February 14, 2024. A more recent docket listing may be available from PACER.
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| Filing 13 RESPONSE to Motion re #10 MOTION to Dismiss filed by Anthony Samuel Tota. (JLV) |
| Filing 12 SUMMONS Returned Executed by Anthony Samuel Tota. New York State Department of Motor Vehicles served on 1/5/2024, answer due 1/26/2024; Mark J.F. Schroeder served on 1/5/2024, answer due 1/26/2024. (JLV) |
| Filing 11 TEXT ORDER re #10 MOTION to dismiss filed by defendants City of Jamestown, Jamestown Police Department, and Jamestown Police Officer Erik Johanson. Response due by 2/23/2024. Reply due by 3/8/2024. If necessary, the Court will schedule oral argument at a later time. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 2/2/2024. (CRT)This was mailed to: the plaintiff. |
| Filing 10 MOTION to Dismiss by City of Jamestown, New York State 14701, Erick Johanson.(Raimondo, Elliot) |
| Filing 9 TEXT ORDER re #8 MOTION to Dismiss filed by defendants New York State Department of Motor Vehicles ("DMV") and DMV Commissioner Mark Schroeder. Response due by 2/14/2024. Reply due by 2/28/2024. If necessary, the Court will schedule oral argument at a later time. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 1/25/2024. (CRT)This was mailed to: the plaintiff. |
| Filing 8 MOTION to Dismiss by New York State Department of Motor Vehicles, Mark J.F. Schroeder. (Attachments: #1 Memorandum in Support, #2 Certificate of Service)(Roberts, Denetra) |
| Filing 7 ANSWER to Complaint by City of Jamestown, New York State 14701, Erick Johanson. (Attachments: #1 Exhibit, #2 Exhibit, #3 Exhibit, #4 Exhibit)(Raimondo, Elliot) |
| ADR Plan electronically forwarded to attorneys. The ADR Plan is available for download at #http://www.nywd.uscourts.gov/alternative-dispute-resolution. (JLV) |
| Filing 6 TEXT ORDER: On January 9, 2024, the pro se plaintiff, Anthony Samuel Tota, filed a motion for a temporary restraining order "preventing the New York State Department of Motor Vehicles [("DMV")] and [DMV Commissioner Mark J. F. Schroeder]... from illegally exercising its rules and regulations upon [Tota]" and from "re-testing [Tota] for a [New York State] driver['s] license." Docket Item 3 at 1 (capitalization omitted). More specifically, Tota contends that the DMV and its officers are requiring him to take a test based on "the fraudulent actions" of City of Jamestown Police Officer Erik Johanson, and that the DMV and Johanson have committed "illegal acts" in violation of Tota's right to due process under the Fourteenth Amendment. Id. at 16. And he argues that because of those illegal actions, this Court should issue an order preventing the DMV and its Commissioner from requiring him to take the test, which is currently scheduled for January 11, 2024. Id. at 17."The standard for issuance of a temporary restraining order is identical to that for issuance of a preliminary injunction." Bimbers Delwood, Inc. v. James, 496 F. Supp. 3d 760, 771 (W.D.N.Y. 2020). "[A] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Do No Harm v. Pfizer Inc., 646 F. Supp. 3d 490, 499 (S.D.N.Y. 2022) (quoting Winter v. NRDC, Inc., 555 U.S. 7, 24 (2008)). A temporary restraining order is "an extraordinary and drastic remedy; one not awarded as a matter of right or entitlement." Bimber's Delwood, 496 F. Supp. 3d at 771.So to show that a temporary restraining order should be granted here, Tota must showat minimumthat he is "likely to suffer irreparable harm" in the absence of court intervention. An "irreparable harm" is an injury that is "non-speculative" and that "cannot be adequately compensated through monetary damages." Padberg v. McGrath-McKechnie, 108 F. Supp. 2d 177, 182 (E.D.N.Y. 2000). Tota states that "the consequences of th[e] illegitimate re-testing could ruin [his] life" because he "totally relies upon... driving to survive." Docket Item 17 at 45. And he says that "[t]he amount of financial loss from the loss of driving rights amounts to tens of thousands of dollars" because such loss would "crippl[e] absolutely necessary [daily] necessities[,] such as food, bill[-]paying, doctors and health[care] treatment, mobility that most people enjoy, and shopping for consumer goods." Id. at 51. Noting that "we live in a mobile society where transportation is an absolute necessity," he argues that "the removal of this right would keep [Tota], who does things for himself, from a means to survive, especially for [Tota], who has a good driving record." Id.That is not enough to show "irreparable harm." In the first place, Tota's assertions are speculative, because he has not shown that his license will be suspendedafter all, he may pass his test. See Milliman v. Lindemoen, 2005 WL 1270844, at *7 (D. Minn. Apr. 29, 2005), report and recommendation adopted, 2005 WL 1421512 (D. Minn. June 16, 2005) (finding that plaintiff had not shown "irreparable harm" since state proceedings regarding the suspension of his driver's license were ongoing); cf. Marino v. Town of Branford, 2018 WL 691715, at *2 (D. Conn. Feb. 2, 2018) (finding no irreparable injury when "the only injury that the plaintiff assert[ed]... [wa]s the possibility that he could lose his medical certificate or paramedic license, or that his employment could be terminated, without a full due process hearing as required by the Fourteenth Amendment to the United States Constitution" (citation and internal quotation marks omitted)). And although Tota claims that the fact that he is being subjected to a test is itself a violation of his right to due process, the Court is unable to assess that claim prior to the deprivation of any property right. See Progressive Credit Union v. City of New York, 889 F.3d 40, 51 (2d Cir. 2018) (holding that "[t]o succeed on a procedural due process claim, a plaintiff must first identify a property right[;] second[,] show that the state has deprived [the plaintiff] of that right[;] and third[,] show that the deprivation was effected without due process." (citation, emphasis, and internal quotation marks omitted)). Finally, Tota has not shown why any loss would not be compensable by money damages, and his statement that his loss may amount to tens of thousands of dollars suggests just the opposite.So Tota has not shown that he will suffer "irreparable injury" in the absence of this Court's order. And because a party's "failure to demonstrate that he will suffer irreparable harm if an injunction does not issue is itself fatal to his motion for injunctive relief," Strong v. Zucker, 582 F. Supp. 3d 65, 71 (W.D.N.Y. 2022), the Court need not assess the other three requirements for the issuance of a temporary restraining order, see Mrs. United States Nat'l Pageant, Inc. v. Williams, 353 F. Supp. 3d 213, 217 (W.D.N.Y. 2019) ("[T]he showing of irreparable harm is perhaps the single most important prerequisite for the issuance of a preliminary injunction, and the moving party must show that injury is likely before the other requirements for an injunction will be considered." (quoting Kamerling v. Massanari, 295 F.3d 206, 214 (2d Cir. 2002)).For the reasons stated above, Tota's motion for a temporary restraining order is DENIED without prejudice. SO ORDERED. Issued by Lawrence J. Vilardo on 1/10/2024. (CRT) This was mailed to: the plaintiff. |
| Filing 5 AFFIDAVIT of Service for Summons served on Vera Marek, Admin Ass 2, New York State Attorney General on 12/21/2023, filed by Anthony Samuel Tota. (JLV) |
| Filing 4 SUMMONS Returned Executed by Anthony Samuel Tota. City of Jamestown, New York State 14701 served on 12/22/2023, answer due 1/12/2024; New York State Department of Motor Vehicles served on 12/22/2023, answer due 1/12/2024; Mark J.F. Schroeder served on 12/22/2023, answer due 1/12/2024. (JLV) |
| Filing 3 MOTION for Temporary Restraining Order by Anthony Samuel Tota. (JLV) |
| Filing 2 AMENDED COMPLAINT against City of Jamestown, New York State 14701, Erick Johanson, New York State Department of Motor Vehicles, Mark J.F. Schroeder filed by Anthony Samuel Tota. (JLV) |
| Summons Reissued as to City of Jamestown, New York State 14701, Erick Johanson, New York State Department of Motor Vehicles, Mark J.F. Schroeder. (JLV) |
| Plaintiff has been given a pro se packet including a privacy notice, consent to proceed before a Magistrate Judge, Pro Se Assistance Program Information, Civil Case Timeline and ADR Notification. (JLV) |
| Filing 1 COMPLAINT against City of Jamestown, New York State 14701, Erick Johanson, New York State Department of Motor Vehicles, Mark J.F. Schroeder filed by Anthony Samuel Tota. (JLV) |
| Filing fee received: $405.00, receipt number 100003428. (JLV) |
| Summons Issued as to City of Jamestown, New York State 14701, Erick Johanson, New York State Department of Motor Vehicles, Mark J.F. Schroeder. (JLV) |
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