The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge
REPORT-RECOMMENDATION AND ORDER
Plaintiff pro se Rafael Varela ("Varela") filed this action in New York state court alleging,among other state law claims, that his constitutional rights have been violated under the Civil Rights Act, 42 U.S.C. § 1983. The case was removed to federal court on November 16, 2010. Dkt. No. 1. Presently pending are Varela's (1) motion to amend his complaint and (2) motion for a preliminary injunction ("PI") and temporary restraining order ("TRO") to reinstate his driver's license. Dkt. Nos. 49, 50. Defendants oppose both motions. Dkt. No. 59. For the reasons which follow, it is (1) ordered that Varela's motion to amend be granted in part and denied in part, and (2) recommended that Varela's motion for a PI and TRO be denied.
Varela's original complaint, while difficult to decipher, alleges a myriad of state and federal violations related to various arrests, prosecutions, and detentions which he experienced in 2006, 2007, and 2008. Dkt. No. 42 at 3. Presently, Varela seeks to amend his complaint to add additional defendants and causes of action related to the suspension of his driver's license by New York State Department of Motor Vehicles (DMV) for a failure to pay court-order child support. Dkt. No. 49, 49-1.
On July 31, 2011, Varela received notification from the New York State Child Support Processing Center (hereinafter "the Support Collection Unit" or "SCU") that he was in arrears for his child support payments in the amount of $3,441.45 and that, based upon that amount, the SCU was "authorized by law to notify [DMV] to suspend [his] driving privileges." Dkt. No. 50 at 32. Varela was also instructed that notification would occur unless, within forty-five days, (1) he made payments for, or arrangements with the SCU to pay, the full amount of the arrears or (2) filed a written challenge. Id.; see also N.Y. Soc. Serv. Law § 111-b(12)(b)(1) (statutory notice provisions). Varela was notified that his license would be suspended on October 18, 2011. Dkt. No. 50 at 24. Varela included with his moving papers a written affidavit, entitled "Challenge to Driver's License Suspension," but the document was not dated. Id. at 27-28. In that document, Varela disputed the amount of arrears and indicated that additional support payments had already been sent or were in the mail. Id.
To challenge such notification, there must be an administrative challenge which will result in an administrative determination. N.Y. Soc. Serv. Law § 111-b(12)(d)(1). Construing the facts in the light most favorable to Varela, the affidavit he filed constitutes the administrative challenge.*fn2 Varela contends that this affidavit was served "both in writing and by mail upon the Rensselaer Child Support Collection Unit, and also hand delivered to [his] SCU worker . . . ." Dkt. No. 50 at 24. It is undisputed that there is nothing in the record indicating there was any type of administrative determination from the SCU, as required by the Social Services Law.*fn3
On October 17, 2011, Varela filed an order to show cause in Rensselaer County Supreme Court regarding the SCU's failure to comply with statutory notice requirements and inappropriate contact with DMV despite Varela's written affidavit of protest. Dkt. No. 50 at 23. The order was denied by Judge Henry Zwack "for lack of [j]urisdiction" however, Varela contends that no subsequent written order followed so he cannot appeal the Article 78 determination. Varela Aff. ¶ 6. Specifically, Varela states that Judge Zwack dismissed the case because it had previously been heard by Judge Walsh who also dismissed it for lack of jurisdiction. Id. ¶ 7. Moreover, Varela claims that Judge Zwack "denied [his] . . . civil rights to proper access to the courts," by providing opposing counsel with extra time and assistance in presenting their case then refusing to allow Varela to argue his case. Id. Varela also contended that at the conclusion of the case, Judge Zwack gave him incorrect, unsolicited legal advice. Id. Ultimately, Varela's license was suspended on October 18, 2011. Id. ¶ 2.
On November 1 and 8, 2011, Varela submitted complaints, via electronic mail, against the department of Social Services and various employees for notifying DMV about what Varela contends was an incorrect finding of child support arrears. Dkt. No. 50 at 25-26. As a result of the litigation and revocation of his license, Varella alleges he has experienced physical problems and anxiety attacks due to the resulting stress. Dkt. No. 49-1 at 4. During a conference in this Court on February 21, 2012, Varela reported that he had a restricted driver's license, allowing him to drive to work, and defendants reported that they did not have any documents associated with the Article 78*fn4 cases or proceedings. Varela has provided the Order to Show Cause and his accompanying affidavits with his submissions. A search of Westlaw by the undersigned failed to find any written decisions by either Judge Zwack or Judge Walsh regarding this matter.
Rule 15(a) provides that a court should grant leave to amend "freely . . . when justice so requires." When exercising its discretion, a court must examine whether there has been undue delay, bad faith, or dilatory motive on the part of the moving party. Evans v. Syracuse City School District, 704 F.2d 44, 46 (2d Cir. 1983) (citing Foman, 371 U.S. at 182). The court must also examine whether there will be prejudice to the opposing party. See, e.g., Ansam Associates Inc. v. Cola Petroleum, Ltd., 760 F.2d 442, 446 (2d Cir.1985) (permitting proposed amendment would be especially prejudicial once discovery has been completed and a summary judgment motion filed). Finally, where it appears that granting leave to amend is unlikely to be productive or the amendment is futile, it is not an abuse of discretion to deny leave to amend. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993) (citations omitted).
When denying a motion to amend based upon futility, the denial should be calculated pursuant to the standards utilized to determine a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Dougherty v. Town of North Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002) ("An amendment to a pleading will be futile if a proposed claim could not withstand a motion to dismiss pursuant to Rule 12(b)(6).") (citations omitted). When considering a motion to dismiss, "a court must accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant." Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994). However, this "tenet . . . is inapplicable to legal conclusions[and t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007)
(holding that "entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action . . . [as] courts are not bound to accept as true a legal conclusion couched as a factual allegation.")).
Accordingly, to defeat a motion to dismiss, a claim must include "facial plausibility . . . that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007) l, 129 S. Ct. at 1949) (explaining that the plausibility test "does not impose a probability requirement . . . it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal [conduct].")); see also Arar v. Ashcroft, 585 F.3d 559, 569 (2d Cir. 2009) (holding that, "[o]n a motion to dismiss, courts require enough facts to state a claim to relief that is plausible . . . .") (citations omitted). Determining whether plausibility exists is "a content specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S. Ct. at 1950-51.
In this case, granting Varela's request to amend his complaint is not futile. "It is well established that many state-created privileges, such as a license to drive, are not to be taken away without that procedural due process required by the Fourteenth Amendment." See e.g., Gudema v. Nassau County, 163 ...