Nichols v. Favreau et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
OWEN NICHOLS,
Plaintiff,
8:25-CV-0416
v. 	(BKS/ML)
WILLIAM J. FAVREAU, Clinton County
Supreme Court Justice; VIVIAN JOO, A.D.A.;
ANDREW J. WYLIE, D.A.; JAMIE A.
DOUTHAT, Chief A.D.A.; GEORGE
GRAHAM, A.D.A.; and ERIC KWPPILA,
Legal Aid Society Public Defender,
Defendants.
_____________________________________________
APPEARANCES: 	OF COUNSEL:
OWEN NICHOLS
Plaintiff, Pro Se
Wende Correctional Facility
Post Office Box 1187
Alden, New York 14004
MIROSLAV LOVRIC, United States Magistrate Judge
ORDER and REPORT-RECOMMENDATION
The Clerk has sent a complaint in the above captioned action together with a sixth
amended application to proceed in forma pauperis and inmate authorization form, filed by Owen
Nichols (“Plaintiff”) to the Court for review. (Dkt. Nos. 1, 26, 28.) For the reasons discussed
below, I (1) grant Plaintiff’s sixth amended in forma pauperis application (Dkt. No. 28), and (2)
recommend that Plaintiff’s Complaint (Dkt. No. 1) be dismissed without prejudice but without
leave to amend.
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I. 	INTRODUCTION
Construed as liberally1 as possible, Plaintiff’s Complaint alleges that his constitutional
rights were violated by defendants William J. Favreau, Vivian Joo, Andrew J. Wylie, Jamie
Douthat, George Graham, and Eric Kwppila (collectively “Defendants”). (See generally Dkt.
No. 1.)
More specifically, the Complaint alleges that October 18, 2023, the maximum expiration
of Plaintiff’s original conviction lapsed. (Dkt. No. 1 at 4.) Plaintiff alleges that on June 30,
2022, he was “court ordered” by Defendant Favreau “under Ind. No. # 70199-22.” (Id. at 5.)
Plaintiff alleges that Defendant Kwppila was assigned to represent him with respect to
indictment number 70199-22. (Id.)
The Complaint alleges that Plaintiff accepted a plea bargain pursuant to which he pleaded
guilty to attempted promoting prison contraband in the first degree. (Dkt. No. 1 at 5.) Plaintiff
alleges that on December 20, 2022, he was sentenced by Defendant Favreau. (Id.)
Plaintiff alleges that on August 22, 2021,2 he filed an application pursuant to N.Y. Crim.
Proc. Law § 190.50, in which, he requested to testify before the grand jury but that he was not
granted the ability to do so. (Id. at 6.) Plaintiff alleges that as a result of the State’s failure to
comply with his notification pursuant to N.Y. Crim. Proc. Law § 190.50, he filed a motion to
vacate his sentence pursuant to N.Y. Crim. Proc. Law § 440.10 but that no hearing has been held.
(Id.) Plaintiff alleges that he has been held in custody for “more than [120/144] hours without
1 	The court must interpret pro se complaints to raise the strongest arguments they suggest.
Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790
(2d Cir. 1994)).
2 	The Complaint also alleges that this motion was filed on August 22, 2022. (Compare
Dkt. No. 1 at 6, with Dkt. No. 1 at 7.)
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either a disposition of felony complaint or commencing of a hearing thereon. Accordance C.P.L.
§ 180.80 since date of offense Aug. 15th, 2021.” (Dkt. No. 1 at 7.)
The Complaint alleges that the delay in disposing of the felony complaint or commencing
a hearing was not due to Plaintiff’s request or consent. (Dkt. No. 1 at 8.) Plaintiff alleges that
there has been no timely grand jury action since the date of the offense (August 15, 2021). (Id.)
Based on these factual allegations, Plaintiff asserts the following three causes of action:
(1) a claim that Defendants Wylie, Joo, Favreau, and Kwppila violated Plaintiff’s due process
rights pursuant to the Fourteenth Amendment and 42 U.S.C. § 1983; (2) a claim that Defendants
Wylie, Joo, Favreau, and Kwppila unlawfully imprisoned Plaintiff in violation of the Eighth
Amendment and 42 U.S.C. § 1983; and (3) a claim that Defendant Kwppila violated Plaintiff’s
right to effective assistance of counsel in violation of the Sixth Amendment and 42 U.S.C. §
1983. (Dkt. No. 1 at 10-12.) As relief, Plaintiff seeks declaratory judgment, compensatory
damages in the amount of $3,000,000, and nominal and punitive damages in the amount of
$500,000. (Dkt. No. 1 at 13.)
Plaintiff also seeks leave to proceed in forma pauperis. (Dkt. No. 28.)
II. 	PLAINTIFF’S SIXTH AMENDED APPLICATION TO PROCEED IN FORMA
PAUPERIS
“28 U.S.C. § 1915 permits an indigent litigant to commence an action in a federal court
without prepayment of the filing fee that would ordinarily be charged.” Cash v. Bernstein, 09-
CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010).3 “Although an indigent,
3 	Section § 1915(g) prohibits a prisoner from proceeding in forma pauperis where, absent a
showing of “imminent danger of serious physical injury,” a prisoner has filed three or more
actions that were subsequently dismissed as frivolous, malicious, or failing to state a claim upon
which relief may be granted. See 28 U.S.C. § 1915(g). The Court has reviewed Plaintiff's
litigation history on the Federal Judiciary's Public Access to Court Electronic Records
(“PACER”) Service. See http://pacer.uspci.uscourts.gov. It does not appear from that review
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incarcerated individual need not prepay the filing fee at the time of filing, he must subsequently
pay the fee, to the extent he is able to do so, through periodic withdrawals from his inmate
accounts.” Cash, 2010 WL 5185047, at *1 (citing 28 U.S.C. § 1915(b); Harris v. City of New
York, 607 F.3d 18, 21 (2d Cir. 2010)).
Upon review, the Court finds that Plaintiff has submitted a completed IFP application
which has been certified by an appropriate official at his facility (Dkt. No. 28 at 2), and which
demonstrates economic need. See 28 U.S.C. § 1915(a)(2). Plaintiff has also filed the inmate
authorization required in the Northern District. (Dkt. No. 26.)
Accordingly, Plaintiff’s sixth amended application to proceed with this action IFP is
granted. (Dkt. No. 28.)
III. 	LEGAL STANDARD FOR INITIAL REVIEW OF THE COMPLAINT
“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the
court shall dismiss the case at any time if the court determines that . . . 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);
see also 28 U.S.C. § 1915A(a) (“The court shall review . . . as soon as practicable . . . a
complaint in a civil action in which a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity.”).
“In reviewing a complaint . . . 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.
that Plaintiff had accumulated three strikes for purposes of 28 U.S.C. § 1915(g) as of the date
this action was commenced.
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Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, “the tenet that a court
must accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d
66, 72 (2d Cir. 2009); see also Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam)
(reading the plaintiff’s pro se complaint “broadly, as we must” and holding that the complaint
sufficiently raised a cognizable claim). “[E]xtreme 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).
IV. 	ANALYSIS
In addressing the sufficiency of a plaintiff’s complaint, the court must construe his
pleadings liberally. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008).
Having reviewed Plaintiff’s Complaint with this principle in mind, I recommend that it be
dismissed.
Plaintiff brings this action pursuant to 42 U.S.C. § 1983, which establishes a cause of
action for “the deprivation of any rights, privileges, or immunities secured by the Constitution
and laws of the United States.” Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 508 (1990).
“Section 1983 itself creates no substantive rights, [but] . . . only a procedure for redress for the
deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993)
(citation omitted).
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To state a viable claim under Section 1983, a plaintiff must allege that the defendant,
while acting under color of state law, deprived him of a right, privilege or immunity secured by
the Constitution or by the laws of the United States. See 42 U.S.C. § 1983.
A. 	Claims Against Defendant Favreau
Judges are absolutely immune from suit for claims seeking damages for any actions taken
within the scope of their judicial responsibilities. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991).
Generally, “acts arising out of, or related to, individual cases before [a] judge are considered
judicial in nature.” Bliven v. Hunt, 579 F.3d 204, 210 (2d Cir. 2009). “[E]ven allegations of bad
faith or malice cannot overcome judicial immunity.” Bliven, 579 F.3d at 209. Judicial immunity
does not apply when a judge takes action outside his or her judicial capacity, or when a judge
takes action that, although judicial in nature, is taken “in the complete absence of all
jurisdiction.” Mireles 502 U.S. at 11-12; see also Bliven, 579 F.3d at 209-10 (describing actions
that are judicial in nature). However, “the scope of [a] judge’s jurisdiction must be construed
broadly where the issue is the immunity of the judge.” Stump v. Sparkman, 435 U.S. 349, 356
(1978).
Plaintiff asserts claims that appear to arise from the efforts of Defendant Favreau in his
capacity as a judge in Clinton County Supreme Court. (Dkt. No. 1 at 2.) Defendant Favreau is
therefore immune from suit under the doctrine of judicial immunity. As a result, I recommend
that Plaintiff’s claims against Defendant Favreau in his individual capacity be dismissed based
on the doctrine of judicial immunity pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(iii), 1915A(b)(2).
Moreover, I recommend that Plaintiff's claims against Defendant Favreau in his official
capacity be dismissed pursuant to the Eleventh Amendment. See Sundwall v. Leuba, 28 F.
App’x 11, 12 (2d Cir. 2001) (citing K & A Radiologic Tech. Servs., Inc. v. Comm'r of the Dep't
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of Health, 189 F.3d 273, 278 (2d Cir. 1999)) (holding that “state officers, if sued in their official
capacities, are immunized from suit by private citizens under the Eleventh Amendment.”); King
v. New York State, 23-CV-3421, 2023 WL 5625440, at *4 (E.D.N.Y. Aug. 31, 2023) (citing
Thomas v. Martin-Gibbons, 857 F. App’x 36, 37 (2d Cir. 2021) (affirming dismissal of pro se
Section 1983 claims against the State of New York and a state court judge in his official capacity
based on Eleventh Amendment immunity)) (“Eleventh Amendment immunity extends to state
officials acting in their official capacities, including state court judges.”); Aron v. Becker, 48 F.
Supp. 3d 347, 366-67 (N.D.N.Y. 2014) (McAvoy, J.) (dismissing the plaintiff’s claims against a
state court judge in his official capacity based on the doctrine of Eleventh Amendment
immunity).
B. 	Claims Against Defendants Wylie, Joo, Douthat, and Graham4
“Prosecutors sued under § 1983 enjoy absolute immunity ‘from claims for damages
arising out of prosecutorial duties that are intimately associated with the judicial phase of the
criminal process.’” Joyner v. Cty. of Cayuga, 20-CV-0060, 2020 WL 1904088, at *9 (N.D.N.Y.
Apr. 17, 2020) (D’Agostino, J.) (quoting Doe v. Phillips, 81 F.3d 1204, 1209 (2d Cir. 1996))).
Prosecutorial immunity from § 1983 liability is broadly defined, covering “virtually all acts,
regardless of motivation, associated with [the prosecutor’s] function as an advocate.” Hill v. City
4 	The Complaint lists Defendants Douthat and Graham in the caption and in the list of
defendants but the body of the Complaint does not allege any action or inaction attributable to
them. (See generally Dkt. No. 1.) Personal involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under Section 1983. Wright v. Smith, 21
F.3d 496, 501 (2d Cir. 1994) (citing Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir.
1991); McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977)). Thus, the Complaint fails to
state a cognizable claim against Defendants Douthat and Graham. See, e.g., Cipriani v. Buffardi,
06-CV-0889, 2007 WL 607341, at *1 (N.D.N.Y. Feb. 20, 2007) (Kahn, J.) (citation omitted) (“A
complaint cannot be maintained against a defendant who is listed in the caption, but against
whom no facts are alleged in the body of the complaint.”).
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of New York, 45 F.3d 653, 661 (2d Cir. 1995) (quoting Dory v. Ryan, 25 F.3d 81, 83 (2d Cir.
1994)). This includes “the decision to bring charges against a defendant, presenting evidence to
a grand jury, and the evaluation of evidence prior to trial.” Moye v. City of New York, 11-CV-
0316, 2012 WL 2569085, at *5 (S.D.N.Y. July 3, 2012) (quoting Johnson v. City of New York,
00-CV-3626, 2000 WL 1335865, at *2 (S.D.N.Y. Sept. 15, 2000)). In addition, prosecutors are
absolutely immune from suit for acts that may be administrative obligations but are “directly
connected with the conduct of a trial.” Van de Kamp v. Goldstein, 555 U.S. 335, 344 (2009).
The crux of Plaintiff’s grievance appears to be that he filed a notice pursuant to N.Y.
Crim. Proc. Law § 190.50, but was not brought before the grand jury to testify, which—
according to Plaintiff—has resulted in his unlawful imprisonment. (See generally Dkt. No. 1.)
Courts have regularly granted absolute prosecutorial immunity under similar allegations. See
Griffin v. DeMartini, 25-CV-0674, 2025 WL 1637902, at *3 (S.D.N.Y. June 9, 2025)
(dismissing the plaintiff’s claims against defendant assistant district attorney based on the
doctrine of prosecutorial immunity where the plaintiff alleged that he filed a meritorious motion
to dismiss the criminal indictment on the ground that he was denied the right to testify before the
grand jury in violation of N.Y. Crim. Proc. Law § 190.50); see also Haskell v. Cuomo, 20-CV-
3965, 2021 WL 861802, at *1, 5 (E.D.N.Y. Mar. 8, 2021) (dismissing the plaintiff’s claims
against defendant assistant district attorney based on the doctrine of prosecutorial immunity
where the plaintiff alleged that he “wanted to be present at the grand jury to exercise his right to
testify, but his rights were not honored.”); Rolle v. McCarthy, 02-CV-4398, 2005 WL 5885366,
at *7 (E.D.N.Y. June 21, 2005) (dismissing the plaintiff’s claims against defendant assistant
district attorney based on the doctrine of prosecutorial immunity where the plaintiff alleged that
he was improperly questioned before the grand jury proceeding).
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Hence, I find that Plaintiff’s claims against Defendants Wylie, Joo, Douthat, and Graham
are based on their actions within the scope of their official duties associated with the conduct of
trial. As a result, I recommend that those claims be dismissed because they seek monetary relief
against defendants who are immune from such relief pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(iii)
1915A(b)(2), and consequently, as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i),
1915A(b)(1). See Collazo v. Pagano, 656 F.3d 131, 134 (2d Cir. 2011) (holding that claim
against prosecutor is frivolous if it arises from conduct that is “intimately associated with the
judicial phase of the criminal process”).5
With respect to Plaintiff’s claims against Defendants Wylie, Joo, Douthat, and Graham in
their official capacities—as employees of the Clinton County District Attorney’s Office—those
claims are subject to dismissal pursuant to the Eleventh Amendment. See D'Alessandro v. City of
New York, 713 F. App’x 1, 8 (2d Cir. 2017) (“[I]f a district attorney or an assistant district
attorney acts as a prosecutor, she is an agent of the state, and therefore immune from suit in her
official capacity.”); Rich v. New York, 21-CV-3835, 2022 WL 992885, at *5 n.4 (S.D.N.Y. Mar.
5 	In the alternative, I recommend that Plaintiff’s claims against Defendants Wylie, Joo,
Douthat, and Graham be dismissed for failure to state a claim upon which relief may be granted.
The law is clear; “the fact that New York State provides certain rights to criminal defendants in
grand jury proceedings does not mean that those rights are likewise guaranteed by the United
States Constitution.” Melendez v. City of New York, 16-CV-1497, 2017 WL 4221083, at *4
(S.D.N.Y. Sept. 20, 2017). Indeed, “it is axiomatic that there is no constitutional right to testify
before the grand jury.” Flores v. Levy, 07-CV-3753, 2008 WL 4394618, at *11 (E.D.N.Y. Sept.
23, 2008); see Franklin v. Warren Cnty. D.A.’s Office, 08-CV-0801, 2009 WL 161314, at *2
(N.D.N.Y. Jan. 21, 2009) (Treece, M.J.) (“there is no federal constitutional right to testify before
a grand jury, nor, for that matter, is there even a federal right to a grand jury in state criminal
proceedings.”). Moreover, pursuant to New York law, although denial of the right to appear
before a grand jury invalidates the indictment, a waiver of that issue occurs unless a motion to
dismiss the indictment on that ground is made no later than five days after arraignment on the
indictment. People v. Reddy, 108 A.D.2d 945, 946 (N.Y. App. Div. 3d Dep’t 1985); People v.
Gilbert, 143 A.D.2d 529, 530 (N.Y. App. Div. 4th Dep’t 1988). Plaintiff does not allege that he
moved to dismiss the indictment within five days of his arraignment on June 30, 2022. (Dkt. No.
1 at 5; see generally Dkt. No. 1.)
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31, 2022) (“[A]ny claims Plaintiff may raise against the DA Defendants in their ‘official
capacity’ would be precluded by immunity under the Eleventh Amendment.”).
C. 	Claims Against Defendant Kwppila
Generally, attorneys, whether with the Legal Aid Society, court-appointed, or privately
retained, are not state actors for purposes of § 1983. See Vermont v. Brillon, 556 U.S. 81, 91
(2009) (holding that “assigned counsel ordinarily is not considered a state actor”); Polk County v.
Dodson, 454 U.S. 312, 325 (1981) (“[A] public defender does not act under color of state law
when performing a lawyer’s traditional functions as counsel to a defendant in a criminal
proceeding.”).
Here, Defendant Kwppila is not a state actor and Plaintiff seeks to challenge the
traditional functions of counsel to a defendant in a criminal proceeding. Hence, Plaintiff’s
Section 1983 claims are not plausible. See, e.g., Kirkland v. N.Y.S. Div. of Parole, 20-CV-8606,
2020 WL 6729119, at *3 (S.D.N.Y. Nov. 13, 2020) (sua sponte dismissing Section 1983 claims
against Legal Aid attorney). As a result, I recommend that Plaintiff’s claims against Kwppila be
dismissed for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
V. 	OPPORTUNITY TO AMEND
Generally, a court should not dismiss claims contained in a complaint filed by a pro se
litigant without granting leave to amend at least once “when a liberal reading of the complaint
gives any indication that a valid claim might be stated.” Branum v. Clark, 927 F.2d 698, 704-05
(2d Cir. 1991); see also Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave when
justice so requires.”). An opportunity to amend is not required, however, 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); see also Cortec Indus. Inc. v. Sum Holding
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L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact
sufficient to support its claim, a complaint should be dismissed with prejudice.”). Stated
differently, “[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is
not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d
129, 131 (2d Cir. 1993); accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1
(N.D.N.Y. Sept. 22, 1997) (Pooler, J.).6
The issues identified in Plaintiff’s Complaint are substantive, such that a better pleading
could not cure them. As a result, I recommend that the Complaint be dismissed without
prejudice but without leave to amend.
ACCORDINGLY, it is
ORDERED that Plaintiff’s sixth amended application to proceed in forma pauperis (Dkt.
No. 28) is GRANTED; and it is further
ORDERED that the Clerk of the Court (1) provide the Superintendent of the facility that
Plaintiff has designated as his current location with a copy of Plaintiff’s inmate authorization
form (Dkt. No. 26) and notify that official that Plaintiff has filed this action and is required to
pay the Northern District of New York the entire statutory filing fee of $350.00 in installments,
over time, pursuant to 28 U.S.C. § 1915; and (2) provide a copy of Plaintiff’s inmate
authorization form (Dkt. No. 26) to the Financial Deputy of the Clerk’s office; and it is further
respectfully
6 	See also Carris v. First Student, Inc., 132 F. Supp. 3d 321, 340-41 n.1 (N.D.N.Y. 2015)
(Suddaby, C.J.) (explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171
F.3d 794, 796 (2d Cir. 1999)—that the Court should grant leave to amend “unless the court can
rule out any possibility, however unlikely it might be, that an amended complaint would be
successful in stating a claim”—is likely not an accurate recitation of the governing law after Bell
Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev’d on other grounds, 682 F. App’x 30.
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RECOMMENDED that Plaintiff’s Complaint (Dkt. No. 1) be DISMISSED
WITHOUT PREJUDICE but WITHOUT LEAVE TO REPLEAD pursuant to 28 U.S.C. §§
1915(e)(2)(B) and 1915A(b); and it is further
ORDERED that the Clerk of the Court shall file a copy of this order, report, and
recommendation on the docket of this case and serve a copy upon the parties in accordance with
the local rules.7
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within
which to file written objections to the foregoing report.8 Such objections shall be filed with the
Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN
DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1) (Supp. 2013);
Fed. R. Civ. P. 6(a), 6(d), 72; 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)).
Dated: October ___, 2025
Binghamton, New York
7 	The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein
in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
8 	If you are proceeding pro se and served with this report, recommendation, and order by
mail, three additional days will be added to the fourteen-day period, meaning that you have
seventeen days from the date that the report, recommendation, and order 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. P. 6(a)(1)(C).
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Brown v. Peters, Not Reported in F.Supp. (1997)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
1997 WL 599355
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Kenneth BROWN, Plaintiff,
v.
Andrew PETERS, Warden, Watertown Correctional
Facility; Joseph Williams, Warden, Lincoln Work–
Release Center; Francis J. Herman, Senior Parole
Officer Interstate Bureau; T. Stanford, Senior Parole
Officer; Deborah Stewart, Parole Officer; John Doe #
1, Parole Agent, Watertown Correctional Facility; John
Doe # 2, Parole Agent, Lincoln Work Release Center;
Susan Bishop, Director of Interstate Compact, South
Carolina; Cecil Magee, Parole Officer, South Carolina;
Frank Barton, Parole Officer, South Carolina; John
McMahan, Parole Officer, South Carolina, Defendants.
No. Civ.A. 95CV1641RSPDS.
|
Sept. 22, 1997.
Attorneys and Law Firms
Kenneth Brown, State Court Institute–Greene, Waynesburg,
PA, plaintiff, pro se.
Dennis C. Vacco, New York State Attorney General, The
Capitol Albany, NY, for defendants Peters, Herman Stewart,
Doe # 1, Doe # 2, and Williams, Jeffrey M. Dvorin, Assistant
Attorney General, Carl N. Lundberg, Chief Legal Counsel,
South Carolina Department of Probation, Columbia, SC, for
defendants Bishop, Magee, Barton, McMahan, and Stanford,
Carl N. Lundberg, of Counsel.
DECISION AND ORDER
POOLER, J.
*1 The above matter comes to me following a Report–
Recommendation by Magistrate Judge Daniel Scanlon, Jr.,
duly filed on April 17, 1997. Following ten days from the
service thereof, the Clerk has sent me the entire file, including
any and all objections filed by the parties herein.
Plaintiff Kenneth Brown commenced this Section 1983 civil
rights action on November 17, 1995. On February 12,
1996, Magistrate Judge Scanlon ordered Brown to submit an
amended complaint alleging the specific acts committed by
the individuals named as defendants which Brown claimed
violated his constitutional rights. Brown filed an amended
complaint on March 21, 1996. In his amended complaint,
Brown alleged that defendants violated his rights under the
Eighth and Fourteenth Amendments by failing to process
properly his interstate compact paperwork, resulting in Brown
being imprisoned pursuant to a parole hold when in fact
he had never violated the conditions of his parole. For a
more complete statement of Brown's claims, see his amended
complaint. Dkt. No. 5.
On August 5, 1996, defendants Peters and Williams made
a motion to dismiss for failure to state a claim pursuant to
Fed.R.Civ.P. 12(b)(6). Dkt. No. 13; Dkt. No. 14, at 2. On
August 19, 1996, defendants Bishop, Magee, Barton, and
McMahan made a motion to dismiss the complaint against
them or, in the alternative, for summary judgment. Dkt. No.
20. On October 17, 1996, defendants Herman, Stewart, and
Stanford made a motion to dismiss for failure to state a
claim. Dkt. No 34. On April 17, 1996, Magistrate Judge
Scanlon recommended that all defendants' motions to dismiss
be granted and that the complaint be dismissed. Dkt. No. 50.
On June 9, 1997, Brown filed objections to the
magistrate judge's report-recommendation, having been
granted additional time in which to do so. Dkt. No. 52. In
addition, Brown filed on June 9, 1997, a motion for leave to
file a second amended complaint and a copy of his proposed
amended complaint. Dkt. No. 53. I turn first to the last motion
filed, Brown's motion for leave to amend his complaint a
second time.
Brown seeks to file a second amended complaint “setting
forth in detail the personal involvement of each defendant
and how their acts of commission and omission served to
deprive plaintiff of Constitutionally secured rights.” Dkt. No.
53. The district court has discretion whether to grant leave
to amend. Ruffolo v. Oppenheimer & Co., 987 F.2d 129,
131 (2d Cir.1993). In exercising that discretion, the court
should freely grant leave to amend when justice so requires.
Fed.R.Civ.P. 15(a). However, the court need not grant leave
to amend where it appears that amendment would prove to be
unproductive or futile. Ruffolo, 987 F.2d at 131.
Here, Brown moved to amend his complaint to add additional
allegations against the named defendants. However, the
additional allegations fail to cure the deficiency which
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forms the basis of defendants' motion to dismiss—
the absence of defendants' personal involvement in a
constitutional deprivation. Section 1983 imposes liability
upon an individual only when personal involvement of that
individual subjects a person to deprivation of a federal right.
See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct.
2018, 56 L.Ed.2d 611 (1978). A complaint is fatally defective
if it fails to allege personal involvement sufficient to establish
that a supervisor was “directly and personally responsible for
the purported unlawful conduct.” Alfaro Motors, Inc. v. Ward,
814 F.2d 883, 886 (2d Cir.1987).
*2 Brown's proposed amended complaint alleges in
conclusory fashion that defendants acted “in a grossly
negligent and concerted manner which breached their duties
owed to Plaintiff and is the proximate cause of [the violation
of plaintiff's constitutional rights].” Proposed Am. Compl.,
at 3. Brown continues in the same vein, stating that
defendants owed duties to plaintiff to carry out their jobs in a
professional manner and they failed to carry out those duties
appropriately. The complaint states that defendants held
specific responsibilities, such as checking for outstanding
warrants, which if performed properly should have alerted
them to a problem. However, nowhere does the complaint
set forth allegations that these defendants either participated
directly in any constitutional infraction or that they were even
aware of such an infraction. The proposed amended complaint
merely alleges that these defendants failed in performing their
supervisory and ministerial functions. “These bare assertions
do not state a claim under 42 U.S.C. § 1983.” Smiley v. Davis,
1988 WL 78306, *2 (S.D.N.Y.).
This plaintiff previously has had the opportunity to amend his
complaint for the same reason asserted here, to allege personal
involvement on the part of defendants. Brown's first amended
complaint failed to accomplish that task, and it appears that
even if allowed to amend again Brown would be unable to
make the requisite allegations with sufficient specificity to
sustain his complaint. Consequently, I find that amendment
would be futile, and I deny Brown's motion for leave to amend
his complaint.
I turn now to the magistrate judge's report-recommendation
and defendants' motions. The magistrate judge recommends
that I grant defendants' motions and dismiss the complaint
as to all defendants. The report-recommendation clearly
describes the grounds on which the magistrate judge
recommends dismissal as to each defendant. Fed.R.Civ.P.
72(b) requires the district judge to make a de novo
determination on “any portion of the magistrate's disposition
to which specific, written objection has been made.” Brown's
objections fail to address directly any of the analysis.
Brown's objections state (1) that he has been deprived of
his constitutional rights; (2) that he has stated a cause of
action; (3) that the court wrongly refused to appoint an
attorney for him and wrongly stayed discovery pending the
outcome of these motions; (4) that he seeks to file an amended
complaint; (5) the standard of review for a Fed.R.Civ.P. 12(b)
(6) motion; (6) that he disagrees with the magistrate judge's
recommendation to grant defendants' motions because the
allegations in his complaint, which he repeats, show that his
rights were violated; and (7) the text of the Fourteenth and
Eighth Amendments.
Even affording the objections the liberal reading required
for pro se pleadings, I find that these objections fail to
state any basis whatsoever, much less a specific one, for
the court not to adopt the magistrate judge's rulings. They
simply re-state the relief sought and the facts on which Brown
grounds his complaint and conclude that the magistrate
judge's conclusions are wrong. When the parties make only
frivolous, conclusive, or general objections, the court reviews
the report-recommendation for clear error. See Camardo v.
General Motors Hourly–Rate Employees Pension Plan, 806
F.Supp. 380, 382 (W.D.N.Y.1992) (court need not consider
objections which are frivolous, conclusive, or general and
constitute a rehashing of the same arguments and positions
taken in original pleadings); Chambrier v. Leonardo, 1991
WL 44838, *1 (S.D.N.Y.) (restatement of allegations already
before the court and assertion that valid constitutional claim
exists insufficient to form specific objections); Schoolfield
v. Dep't of Correction, 1994 WL 119740, *2 (S.D.N.Y.)
(objections stating that magistrate judge's decisions are
wrong and unjust, and restating relief sought and facts
upon which complaint grounded, are conclusory and do not
form specific basis for not adopting report-recommendation);
Vargas v. Keane, 1994 WL 693885, *1 (S.D.N.Y.) (general
objection that report does not address violation of petitioner's
constitutional rights is a general plea that report not be
adopted and cannot be treated as objection within the meaning
of 28 U.S.C. § 636), aff'd, 86 F.3d 1273 (2d Cir.), cert.
denied, 519 U.S. 895, 117 S.Ct. 240, 136 L.Ed.2d 169
(U.S.1996). See also Scipio v. Keane, 1997 WL 375601, *1
(1997) (when objections fail to address analysis directly, court
reviews report-recommendation for clear error); Fed.R.Civ.P.
72(b), Advisory Comm. Note (when no specific, written
objections filed, “court need only satisfy itself that there is
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no clear error on the face of the record in order to accept the
recommendation”).
*3 Because Brown fails to make specific objections or
provide any basis for his general objections, I review the
report-recommendation for clear error. After careful review,
I conclude that the magistrate judge's report-recommendation
is well-reasoned and is not clearly erroneous. 1 The
magistrate judge employed the proper standard, accurately
recited the facts, and reasonably applied the law to those facts.
Consequently, I adopt the report-recommendation.
CONCLUSION
Because plaintiff's proposed amendment demonstrates that
amendment would be futile, I deny plaintiff's motion for leave
to amend his complaint. I approve the magistrate judge's
recommendation and grant defendants' motions to dismiss.
Plaintiff's complaint is dismissed in its entirety.
IT IS SO ORDERED.
ORDER and REPORT–RECOMMENDATION
This matter was referred to the undersigned for report and
recommendation by the Hon. Rosemary S. Pooler, United
States District Judge, by Standing Order dated November
12, 1986. Currently before this Court are a number of
motions. Defendants Peters and Williams have filed a motion
to dismiss (dkt.13); defendants Bishop, Magee, Barton and
McMahan have filed a motion for summary judgment, or in
the alternative to dismiss (dkt.20); and defendants Herman,
Stewart and Stanford also have filed a motion to dismiss
(dkt.34). Plaintiff opposes these three motions (dkts.27, 29,
33, 38). Defendants Bishop, Magee and McMahan have filed
a motion to stay discovery (dkt.41) and plaintiff has filed a
motion to extend time (dkt.44) in which to file opposition to
the latter motion for a stay of discovery.
The Court addresses these issues seriatim.
BACKGROUND
Plaintiff's amended complaint, which he has brought pursuant
to 42 U.S.C. § 1983, alleges the following facts. In
October, 1991, plaintiff was incarcerated in the Watertown
Correctional Facility in Watertown, New York. He applied
for an interstate compact because he wanted to return to
South Carolina to live with his common law wife, Pamela
Reid. During the application process, he was interviewed by
the facility's parole officer, identified only as defendant John
Doe # 1. After signing the necessary papers, his application
was forwarded to defendant Andrew Peters, the facility's
superintendent, who reviewed, signed and forwarded the
papers to the Interstate Bureau. Amend. Compl. at ¶¶ 1–2;
Exs. A, B.
On or about January 15, 1992, while his compact was waiting
for review at the Interstate Bureau, plaintiff was approved for
work release and sent to the Lincoln Work Release Center
in New York City. While at the center, plaintiff spoke to a
parole officer, defendant John Doe # 2, and told him that
he was seeking a compact that would return him to South
Carolina upon his conditional release. Plaintiff claims the
parole officer told him that he would handle the necessary
paperwork, although the officer had had no experience with
an interstate compact. Amend. Compl. at ¶¶ 3, 4.
*4 Plaintiff, meanwhile, asked Reid whether any officials
had contacted her in South Carolina regarding his prospective
residence in that state. Upon discovering no one had contacted
her, plaintiff asked a lawyer he knew, Navron Ponds, to
inquire as to his compact status. In March, 1992, the
lawyer spoke with defendant Susan Bishop, who is the
director of the interstate compact program in South Carolina.
Bishop allegedly told Ponds that plaintiff “was disapproved
because there was a discrepancy about approving plaintiff['s]
compact.” The “discrepancy” was the fact that plaintiff owed
the state of South Carolina eighty-six days of confinement
from a previous sentence. Plaintiff claims Bishop told Ponds
to contact defendants Cecil Magee and Frank Barton, who
worked for the South Carolina Parole Department. Sometime
in March, 1992, Ponds made some calls to Barton and Magee.
A verbal agreement was reached, and plaintiff, upon speaking
with Barton and Magee was told that his compact had been
approved. He also was told that he should report to the South
Carolina Department of Parole upon being released. Amend.
Compl. at ¶¶ 5–7.
Prior to leaving the Lincoln Work Release Center, plaintiff
processed paperwork related to his interstate compact. His
paperwork was sent by Doe # 2 to defendant Joseph Williams,
the superintendent of the center. Williams reviewed, signed
and returned the paperwork to plaintiff. On May 1, 1992,
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upon his release from the center, plaintiff traveled to South
Carolina. Three days later, he entered a South Carolina parole
office and promptly was arrested because of the eighty-
six days of confinement that he owed the state. Plaintiff's
paperwork was given to defendant John McMahan, a parole
officer. Plaintiff claims that McMahan never returned this
paperwork to him. On May 20, 1992, the state of South
Carolina revoked plaintiff's parole and plaintiff was returned
to prison to serve the eighty-six days that he owed. When he
asked McMahan what would happen to his one year of parole
from New York, the officer allegedly told him that his New
York parole would run concurrently with his South Carolina
parole, and that when he finished his South Carolina parole,
he would not owe any parole whatsoever. Plaintiff served the
eighty-six days he owed and was released on July 31, 1992.
Amend. Compl. at ¶¶ 8–10.
In February, 1993, plaintiff was arrested on robbery charges
in South Carolina. The charges ultimately were dropped,
but he apparently encountered some difficulties regarding
this arrest as a result of a parole hold that New York state
had placed upon him. Bishop's office told him that it had
nothing to do with his parole hold and that any problem that
he had was between him and the state of New York. He
talked to authorities in Albany, New York regarding the parole
hold, but was not successful in his efforts to have the hold
removed. On September 30, 1993, after had been extradited
to New York as a fugitive from justice, plaintiff was given a
preliminary hearing at Riker's Island, New York. The hearing
officer found no probable cause that plaintiff had violated any
condition of parole. He was released. Amend. Compl. at ¶¶
11–14; Exs. C–J.
*5 Plaintiff claims that he would not have suffered hardships
if his interstate compact had been handled correctly. He
alleges that defendant Deborah Stewart failed to follow up
and see whether plaintiff had arrived in South Carolina. If she
had, he argues, she would have discovered that he had been
arrested upon his arrival. He alleges that defendant Francis
Herman, a parole officer at the Interstate Bureau failed to
do his job by not investigating plaintiff's violation reports.
Amend. Compl. at ¶¶ 15–17; Exs. F–I.
Plaintiff asserts that the foregoing amounts violations of his
Eighth and Fourteenth Amendment rights, wherefore he both
compensatory and declaratory relief.
DISCUSSION
A. Motion to Dismiss by Williams and Peters.
Williams and Peters have filed a motion to dismiss plaintiff's
complaint pursuant to FED.R.CIV.P. 12(b)(6) on the grounds
that it fails to state a claim upon which relief may be
granted. In a Rule 12(b)(6) motion, all factual allegations
in the complaint must be taken and construed in plaintiff's
favor. See LaBounty v. Adler, 933 F.2d 121, 122 (2d
Cir.1991) (citing Ortiz v. Cornette, 867 F.2d 146, 149 (1989)).
The Court's role is not to assess whether plaintiffs have
raised questions of fact or demonstrated an entitlement
to a judgment as a matter of law, as in a motion made
pursuant to FED.R.CIV.P. 56 for summary judgment, but
rather to determine whether plaintiff's complaint sufficiently
alleges all of the necessary legal elements to state a claim
under the law. See Christopher v. Laidlaw Transit, Inc.
899 F.Supp. 1224, 1226 (S.D.N.Y.1995), (citing Ricciuti v.
New York City Transit Authority, 941 F.2d 119, 124 (2d
Cir.1991)). Factual allegations in brief or memoranda may not
be considered. Fonte v. Board of Managers of Continental
Towers Condominium, 848 F.2d 24, 25 (2d Cir.1988). The
Court now turns to the issues presented.
Personal involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under
§ 1983. Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994).
As superintendents at New York State Correctional facilities,
Williams and Peter may be found personally involved in the
alleged deprivation of plaintiff's constitutionally protected
rights by a showing that they: (1) directly participated in the
infraction; (2) knew of the infraction, but failed to remedy
the wrong; (3) created or continued a policy or custom under
which unconstitutional practices occurred; or (4) were grossly
negligent in managing subordinates who caused unlawful
conditions or events. Id., (quoting Williams v. Smith, 781
F.2d 319, 323–24 (2d Cir.1986)). Supervisory liability also
may be imposed against Williams or Peters with a showing
of gross negligence or deliberate indifference to plaintiff's
constitutional rights. Id. Absent some personal involvement
by Williams or Peters in the allegedly constitutionally infirm
conduct of their subordinates, neither can be held liable under
§ 1983. Gill v. Mooney, 824 F.2d 192, 196 (2d Cir.1987).
*6 Plaintiff has not provided any evidence linking either
Williams or Peters to his alleged constitutional deprivations.
All that plaintiff has alleged is that Williams and Peters,
as superintendents, have reviewed and signed paperwork
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relating to plaintiff's compact. Though it has long been held
that pro se complaints are held to “less stringent standards
than formal pleadings drafted by lawyers” for the purpose of a
motion to dismiss under Rule 12(b)(6), Haines v. Kerner, 404
U.S. 519, 520, 92 S.Ct. 594, 595–96, 30 L.Ed.2d 652 (1972),
plaintiff has not explained how the ministerial conduct of
these two defendants was violative of the Constitution. Their
motion to dimiss should be granted.
B. Motion for Summary Judgment or to Dismiss by Bishop,
Magee, Barton and McMahan.
Bishop, Magee, Barton and McMahan have filed a motion
for summary judgment, or in the alternative a motion to
dismiss. The Court will treat their motion as a motion to
dismiss. “[C]omplaints relying on the civil rights statutes are
insufficient unless they contain some specific allegations of
fact indicating a deprivation of rights, instead of a litany
of general conclusions that shock but have no meaning.”
Barr v. Adams, 810 F.2d 358, 363 (2d Cir.1987). Plaintiff
has not alleged specifically how the conduct of these four
defendants infringed upon his constitutional rights. In his
amended complaint, he contends that defendants violated the
Constitution by “continuously breaching [[[their] duty” to
him. This language underscores the defect with the complaint:
if it alleges anything at all, it alleges that defendants were
negligent in handling plaintiff's interstate compact and parole.
To state a cognizable § 1983 claim, the prisoner must allege
actions or omissions sufficient to demonstrate deliberate
indifference; mere negligence will not suffice. Hayes v.
New York City Dept. of Corrections, 84 F.3d 614, 620 (2d
Cir.1996); Morales v. New York State Dep't of Corrections,
842 F.2d 27, 30 (2d Cir.1988) (section 1983 does not
encompass a cause of action sounding in negligence).
The Court finds that the claims against Bishop, Magee, Barton
and McMahan should be dismissed.
C. Motion to Dismiss by Herman, Stewart and Stanford.
Plaintiff's claim against Stewart is that she failed to follow
up and see whether plaintiff had arrived in South Carolina.
Herman, he likewise asserts, failed to do his job because he
did not investigate plaintiff's violation reports. Plaintiff has
not alleged how these actions run afoul of the Constitution;
and again, these claims seem to be grounded in negligence,
which is not actionable under § 1983. Hayes, 84 F.3d at 620.
Plaintiff's claim against Stanford must fail because his
complaint literally fails to state a claim against that
defendant. Aside from naming Stanford as a defendant, and
alleging that he was the appointed Senior Parole Officer at
plaintiff's September 30, 1993 revocation hearing at Riker's
Island, plaintiff does not detail how Stanford violated his
constitutional rights. Absent some personal involvement by
Stanford in the allegedly constitutionally infirm conduct of
his subordinates, he cannot be held liable under § 1983. Gill,
824 F.2d at 196.
*7 Accordingly, the Court finds that Stanford, Stewart and
Herman's motion to dismiss should be granted.
D. Plaintiff's “John Doe” Claims.
In so far as neither John Doe # 1 nor John Doe # 2 have been
identified and served in this matter, the Court does not have
jurisdiction over these parties and does not reach the merits
of plaintiff's claims against them.
E. Discovery Motions.
Defendants Bishop, Magee and McMahan have filed a motion
to stay discovery until the Court has made a ruling on their
motion to dismiss. Plaintiff has filed a motion to extend
the time in which he may file opposition to defendants'
motion. Plaintiff, however, has filed his opposing response
(dkt.47), therefore his instant discovery motion is denied as
moot. In that the Court recommends granting defendants'
motion to dismiss, discovery in this matter would be fruitless.
Accordingly, defendants' motion for a stay of discovery
pending the resolution of their motion to dismiss is granted.
CONCLUSION
WHEREFORE, based upon the foregoing analysis, it is
hereby
ORDERED, that plaintiff's motion to extend the time to file
an opposing reply (dkt.44) is denied as moot; and it is further
ORDERED, that defendants Bishop, Magee and McMahan's
motion to stay discovery until their motion to dismiss is
decided (dkt.41) is granted; and it is further
RECOMMENDED, that defendants Peters and Williams'
motion to dismiss (dkt.13) be granted; and it is further
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RECOMMENDED, that defendants Bishop, Magee, Barton
and McMahan's motion to dismiss (dkt.20) be granted; and it
is further
RECOMMENDED, that defendants Herman, Stewart and
Stanford's motion to dismiss (dkt.34) be granted.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c),
the parties have ten (10) 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 TEN (10) DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85, 89 (2d Cir.1993) (citing Small v. Secretary of
Health and Human Services, 892 F.2d 15 (2d Cir.1989)); 28
U.S.C. § 636(b)(1); FED.R.CIV.P. 6(a), 6(e) and 72.
All Citations
Not Reported in F.Supp., 1997 WL 599355
Footnotes
1 I note, however, that the report-recommendation would survive even de novo review.
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Cash v. Bernstein, Not Reported in F.Supp.2d (2010)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2010 WL 5185047
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
David J. CASH, Plaintiff,
v.
BERNSTEIN, MD, Defendant.
No. 09 Civ.1922(BSJ)(HBP).
|
Oct. 26, 2010.
REPORT AND RECOMMENDATION 1
PITMAN, United States Magistrate Judge.
*1 TO THE HONORABLE BARBARA S. JONES, United
States District Judge,
I. Introduction
By notice of motion dated March 4, 2010 (Docket Item 11),
defendant moves pursuant to 28 U.S.C. § 1915(g) to revoke
plaintiff's in forma pauperis (“IFP”) status on the ground that
plaintiff has previously had at least three Section 1983 actions
dismissed as frivolous, malicious or failing to state a claim
upon which relief could be granted, and has not shown that he
is in imminent danger of serious physical injury. Defendant
further seeks an order directing that the action be dismissed
unless plaintiff pays the full filing fee within thirty (30) days.
For the reasons set forth below, I respectfully recommend that
defendant's motion be granted.
II. Facts
Plaintiff, a sentenced inmate in the custody of the New
York State Department of Correctional Services, commenced
this action on or about January 12, 2009 by submitting his
complaint to the Court's Pro Se office. Plaintiff alleges, in
pertinent part, that he has “a non-healing ulcer that is gane
green [sic ]” and that defendant Bernstein “did not want
to treat the ulcer right” (Complaint, dated March 3, 3009
(Docket Item 2) (“Compl.”), at 3).
The action was originally commenced against two defendants
—Dr. Bernstein and Dr. Finkelstein. The action was dismissed
as to Dr. Finkelstein because the complaint contained no
allegations whatsoever concerning Dr. Finkelstein (Order
dated February 18, 2010 (Docket Item 9)).
On March 4, 2010, the sole remaining defendant—Dr.
Bernstein—filed the current motion. Plaintiff failed to submit
a response. Accordingly, on August 20, 2010, I issued an
Order advising plaintiff that if he wished to oppose the
motion, he must submit his opposition by September 15, 2010
and that after that date I would consider the motion fully
submitted and ripe for decision (Order dated August 20, 2010
(Docket Item 15)). The only submission plaintiff has made
in response to my Order is a multi-part form issued by the
New York State Department of Correctional Services entitled
“Disbursement or Refund Request.” 2 By this form, plaintiff
appears to request that the New York State Department of
Correctional Services pay the filing fee for this action. The
form is marked “Denied.”
III. Analysis
28 U.S.C. § 1915 permits an indigent litigant to commence
an action in a federal court without prepayment of the filing
fee that would ordinarily be charged. Although an indigent,
incarcerated individual need not prepay the filing fee at the
time at the time of filing, he must subsequently pay the fee,
to the extent he is able to do so, through periodic withdrawals
from his inmate accounts. 28 U.S.C. § 1915(b); Harris v.
City of New York, 607 F.3d 18, 21 (2d Cir.2010). To prevent
abuse of the judicial system by inmates, paragraph (g) of
this provision denies incarcerated individuals the right to
proceed without prepayment of the filing fee if they have
repeatedly filed meritless actions, unless such an individual
shows that he or she is in imminent danger of serious
physical injury. See Ortiz v. McBride, 380 F.3d 649, 658 (2d
Cir.2004) (“[T]he purpose of the PLRA ... was plainly to
curtail what Congress perceived to be inmate abuses of the
judicial process.”); Nicholas v. Tucker, 114 F.3d 17, 19 (2d
Cir.1997). Specifically, paragraph (g) provides:
*2 In no event shall a prisoner bring
a civil action or appeal a judgment
in a civil action or proceeding under
this section if the prisoner has, on
3 or more prior occasions, while
incarcerated or detained in any facility,
brought an action or appeal in a court
of the United States that was dismissed
on the grounds that it is frivolous,
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malicious, or fails to state a claim upon
which relief may be granted, unless the
prisoner is under imminent danger of
serious physical injury.
28 U.S.C. § 1915(g).
If an inmate plaintiff seeks to avoid prepayment of the filing
fee by alleging imminent danger of serious physical injury,
there must be a nexus between the serious physical injury
asserted and the claims alleged. Pettus v. Morgenthau, 554
F.3d 293, 298 (2d Cir.2009).
Section 1915(g) clearly prevents plaintiff from proceeding
in this action without prepayment of the filing fee.
The memorandum submitted by defendant establishes that
plaintiff has had his IFP status revoked on at least four prior
occasions as a result of his repeatedly filing meritless actions.
• In 2005, plaintiff commenced an action in the United
States District Court for the Northern District of New
York seeking to have his infected leg amputated.
Nelson 3 v. Lee, No. 9:05–CV–1096 (NAM)(DEP), 2007
WL 4333776 (N.D.N.Y. Dec. 5, 2007). In that matter,
the Honorable Norman A. Mordue, Chief United States
District Judge, accepted and adopted the Report and
Recommendation of the Honorable David E. Peebles,
United States Magistrate Judge, that plaintiff had
brought three or more prior actions that had been
dismissed for failure to state a claim and that plaintiff's
IFP status should, therefore, be revoked. 2007 WL
4333776 at *1–*2.
• In Nelson v. Nesmith, No. 9:06–CV–1177 (TJM)(DEP),
2008 WL 3836387 (N.D.N.Y. Aug. 13, 2008), plaintiff
again filed an action concerning the medical care
he was receiving for his left leg. The Honorable
Thomas J. McAvoy, United States District Judge,
accepted the Report and Recommendation of Magistrate
Judge Peebles, and revoked plaintiff's IFP status and
dismissed the action on the ground that plaintiff had
previously commenced at least three actions that had
been dismissed on the merits. 2008 WL 3836387 at *1,
*7.
• In Nelson v. Spitzer, No. 9:07–CV–1241 (TJM)
(RFT), 2008 WL 268215 (N.D.N.Y. Jan. 29, 2008),
Judge McAvoy again revoked plaintiff's IFP status
on the ground that plaintiff had commenced three
or more actions that constituted “strikes” under
Section 1915(g) and had not shown an imminent
threat of serious physical injury. 2008 WL 268215
at *1–*2.
• Finally, in Nelson v. Chang, No. 08–CV–1261
(KAM)(LB), 2009 WL 367576 (E.D.N.Y. Feb. 10,
2009), the Honorable Kiyo A. Matsumoto, United
States District Judge, also found, based on the
cases discussed above, that plaintiff had exhausted
the three strikes permitted by Section 1915(g)
and could not proceed IFP in the absence of a
demonstration of an imminent threat of serious
physical injury. 2009 WL 367576 at *2–*3.
*3 As defendant candidly admits, there is one case in which
plaintiff's leg infection was found to support a finding of an
imminent threat of serious physical injury sufficient to come
within the exception to Section 1915(g). Nelson v. Scoggy,
No. 9:06–CV–1146 (NAM)(DRH), 2008 WL 4401874 at *2
(N.D.N.Y. Sept. 24, 2008). Nevertheless, summary judgment
was subsequently granted for defendants in that case, and
the complaint was dismissed. Judge Mordue concluded that
there was no genuine issue of fact that plaintiff had received
adequate medical care for his leg wound and that the failure
of the leg to heal was the result of plaintiff's own acts of
self-mutilation and interference with the treatment provided.
Nelson v. Scoggy, No. 9:06–CV–1146 (NAM)(DRH), 2009
WL 5216955 at *3–*4 (N.D.N.Y. Dec. 30, 2009). 4
In light of the foregoing, there can be no reasonable dispute
that plaintiff has exceeded the three “strikes” allowed by
Section 1915(g) and that he cannot, therefore, proceed here
without prepaying the filing fee unless he demonstrates
an imminent threat of serious physical injury. Plaintiff has
declined to attempt to make this showing in response to
defendant's motion, and the only suggestion in the record
of serious physical injury is the bare statement in the
complaint that plaintiff “need[s] to go back to a wound speci
[a]list before the gane green [sic ] kills [him]” (Compl. at
5). “However, unsupported, vague, self-serving, conclusory
speculation is not sufficient to show that Plaintiff is, in fact,
in imminent danger of serious physical harm.” Merriweather
v. Reynolds, 586 F.Supp.2d 548, 552 (D.S.C.2008), citing
Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir.2003) and
White v. Colorado, 157 F.3d 1226, 1231–32 (10th Cir.1998);
see also Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir.2003)
(imminent danger exception to Section 1915(g) requires
“specific fact allegations of ongoing serious physical injury,
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Cash v. Bernstein, Not Reported in F.Supp.2d (2010)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 3
or of a pattern of misconduct evidencing the likelihood
of imminent serious physical injury”). Given the plaintiff's
history, as set forth in the cases described above, I conclude
that this vague statement is insufficient to support a finding
that plaintiff is in imminent danger of serious physical
injury. 5
IV. Conclusion
Accordingly, for all the foregoing reasons, I find that plaintiff
has had three or more prior actions dismissed as being
frivolous, malicious or failing to state a claim and that
plaintiff's in forma pauperis status should, therfore, be
revoked. If your Honor accepts this recommendation, I further
recommend that the action be dismissed unless plaintiff pays
the filing fee in full within thirty (30) days of your Honor's
final resolution of this motion.
V. OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of
the Federal Rules of Civil Procedure, the parties shall have
fourteen (14) days from receipt of this Report to file written
objections. See also Fed.R.Civ.P. 6(a). Such objections (and
responses thereto) shall be filed with the Clerk of the Court,
with courtesy copies delivered to the Chambers of the
Honorable Barbara S. Jones, United States District Judge,
500 Pearl Street, Room 1920, and to the Chambers of the
undersigned, 500 Pearl Street, Room 750, New York, New
York 10007. Any requests for an extension of time for filing
objections must be directed to Judge Jones. FAILURE TO
OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT
IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE
APPELLATE REVIEW. Thomas v. Arn, 474 U.S. 140, 155
(1985); United States v. Male Juvenile, 121 F.3d 34, 38 (2d
Cir.1997); IUE AFL–CIO Pension Fund v. Herrmann, 9 F.3d
1049, 1054 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298,
300 (2d Cir.1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57–
59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237–
38 (2d Cir.1983).
All Citations
Not Reported in F.Supp.2d, 2010 WL 5185047
Footnotes
1 At the time the action was originally filed, the Honorable Leonard B. Sand, United States District Judge,
granted plaintiff's application for in forma pauperis status based on plaintiff's ex parte submission (Docket Item
1). Although the present application seeking to revoke plaintiff's in forma pauperis status is non-dispositive,
I address it by way of a report and recommendation to eliminate any appearance of a conflict between the
decision of a district judge and that of a magistrate judge.
2 Plaintiff sent this form directly to my chambers, and it has not been docketed by the Clerk of the Court. The
form will be docketed at the time this Report and Recommendation is issued.
3 It appears that plaintiff uses the names David J. Cash and Dennis Nelson interchangeably. In his complaint
in this matter, plaintiff states that the Departmental Identification Number, or DIN, assigned to him by the
New York State Department of Correctional Services (“DOCS”) is 94–B–0694 (Compl. at 7). DOCS inmate
account records submitted by plaintiff in connection with his application for IFP status indicate that DIN 94–
B–0694 is assigned to Dennis Nelson. In addition, the DOCS form described in footnote two bears the docket
number of this action, but is signed in the name of Dennis Nelson and was sent in an envelope identifying
the sender as Dennis Nelson. A subsequent action has been filed in this Court in which the plaintiff identifies
himself as Dennis Nelson but lists his DIN as 94–B–0694, the same DIN used by plaintiff here. Finally, plaintiff
has submitted nothing to controvert the assertion in defendant's papers that David Cash and Dennis Nelson
are the same person. In light of all these facts, I conclude that David Cash and Dennis Nelson are both
names used by plaintiff.
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4 Although the form complaint utilized by plaintiff expressly asks about prior actions involving the same facts,
plaintiff disclosed only the Scoggy action and expressly denied the existence of any other actions relating
to his imprisonment (Compl. at 6).
5 Plaintiff has sent me several letters describing his wound and its symptoms in detail, and I have no doubt
that the wound is serious. However, in granting summary judgment dismissing an action last year based on
the same allegations, Judge Mordue of the Northern District found that there was no genuine issue of fact
that plaintiff's own conduct was responsible for the ineffectiveness of the treatment he was provided:
Furthermore, to the extent that Nelson's medical treatment was delayed, much of the delay was due to
his own refusal to cooperate with medical staff and his self-mutilations. Nelson's actions to thwart the
medical treatment of his wound cannot be construed as interference or indifference by anyone else.... [T]he
medical treatment Nelson received complied with constitutional guarantees as it was appropriate, timely,
and delayed only by Nelson's own actions.
Nelson v. Scoggy, supra, 2009 WL 5216955 at *4.
Given plaintiff's total failure to respond to the pending motion and his failure to even deny that he is actively
thwarting treatment of his wound, it would be sheer speculation for me to conclude that he is in imminent
danger of a serious injury as a result of defendant's conduct.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 8:25-cv-00416-BKS-ML Document 33 Filed 10/29/25 Page 22 of 105

Cipriani v. Buffardi, Not Reported in F.Supp.2d (2007)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2007 WL 607341
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Paul CIPRIANI, Plaintiff,
v.
Harry C. BUFFARDI, Sheriff; Schenectady County Jail;
Cheryl Clark, M.D.; Kevin J. O'Connor, Defendants.
No. 9:06-CV-0889(LEK/DRH).
|
Feb. 20, 2007.
Attorneys and Law Firms
Paul Cipriani, Plaintiff, pro se.
DECISION and ORDER
LAWRENCE E. KAHN, U.S. District Judge.
*1 Presently before the Court is an amended complaint
filed by Plaintiff Paul Cipriani (“Plaintiff”). Amended Compl.
(Dkt. No. 10). This amended complaint was submitted
in compliance with the Memorandum-Decision and Order
issued by this Court on November 27, 2006 (“November
Order”). Mem.-Decision and Order (Dkt. No. 7).
In its November Order, the Court advised plaintiff that he
must set forth facts demonstrating that Defendants were
personally involved in a violation of Plaintiff's rights. Id. at 4.
Plaintiff was also advised that in order to establish the liability
of a municipality, he must allege a custom or policy which is
the moving force behind the violation. Id.
In his amended complaint, Plaintiff names thirteen defendants
and asserts numerous claims against them arising from his
confinement at Schenectady County Jail. Amended Compl.
(Dkt. No. 10).
The Court notes that plaintiff has not named “Schenectady
County Jail,” “Cheryl Clark,” or “Kevin J. O'Connor” in
his amended Complaint. Therefore, “Schenectady County
Jail,” “Cheryl Clark,” and “Kevin J. O'Connor” are hereby
dismissed as defendants in this action.
The Court also notes that Plaintiff's amended Complaint
mentions “Mr. Booth” and “Mr. Purdy” only in the caption,
and fails to allege any act or omission by these individuals.
Dismissal is appropriate where a defendant is listed in the
caption, but the body of the complaint fails to indicate what
the defendant did to the plaintiff. Gonzalez v. City of New
York, No. 97 CIV. 2246(MGC), 1998 WL 382055, at *2
(S.D.N.Y. July 9, 1998) (citing Crown v. Wagenstein, No. 96
CIV. 3895(MGC), 1998 WL 118169, at *1 (S.D.N.Y.Mar.16,
1998) (mere inclusion of warden's name in complaint
insufficient to allege personal involvement) and Taylor v. City
of New York, 953 F.Supp. 95, 99 (S.D.N.Y.1997)). Because
plaintiff has failed to allege any personal involvement on the
part of defendants “Mr. Booth” and “Mr. Purdy”, they are
hereby dismissed as defendants in this action.
In his amended Complaint, Plaintiff alleges that the remaining
Defendants committed various violations of his constitutional
rights, including inadequate medical care, breach of doctor-
patient confidentiality, excessive force, denial of due process
in a disciplinary proceeding, and interference with the
grievance process. Amended Compl. (Dkt. No. 10).
Based on the foregoing, Plaintiff's amended complaint as
against the remaining Defendants is accepted for filing.
Plaintiff is advised, however, that the U.S. Marshals cannot
effect service on a “John Doe” defendant. In the event
that plaintiff wishes to pursue this claim against the “John
Doe” defendants named in the amended Complaint, he must
take reasonable steps to ascertain their identities. Plaintiff
may then file a Motion to amend his complaint and seek
leave of the Court to add such individuals, by name, as
defendants to this lawsuit. Plaintiff is further advised that if
these individuals are not timely served, the action will be
against them will be dismissed.
*2 WHEREFORE, it is hereby
ORDERED, that “Mr. Booth,” “Mr. Purdy,” “Schenectady
County Jail,” “Cheryl Clark,” and “Kevin J. O'Connor” are
DISMISSED as defendants in this action, and it is further
ORDERED, that the Clerk revise the docket to add
“Schenectady County,” “Mr. Burns,” “Mr. Jones,” “Mr.
Adams,” “Ms. Jones,” “Ms. Hull,” “John Doe # 1,” “John Doe
# 7,” “John Doe # 10,” and “Loraine Walker” as defendants
in this action, and it is further
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Cipriani v. Buffardi, Not Reported in F.Supp.2d (2007)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
ORDERED, that the Clerk issue summonses naming the
remaining defendants and forward them, along with copies of
the amended Complaint (Dkt. No. 10), to the United States
Marshal for service upon the defendants, together with a copy
of this Order. 1 The Clerk shall also forward a copy of the
summons and amended Complaint by mail to the County
Attorney for Schenectady County, together with a copy of this
Order, and it is further
ORDERED, that a formal response to Plaintiff's amended
Complaint be filed by Defendants or their counsel as provided
for in Rule 12 of the Federal Rules of Civil Procedure
subsequent to service of process on Defendants, and it is
further
ORDERED, that Plaintiff take reasonable steps to ascertain
the identities of any other individual(s) that purportedly
violated Plaintiff's civil and/or constitutional rights and, if
appropriate, file a Motion to amend his complaint and add
such individuals, by name, as defendants to this lawsuit, and
it is further
ORDERED, that all pleadings, motions and other documents
relating to this action must bear the case number assigned to
this action and be filed with the Clerk of the United States
District Court, Northern District of New York, 7th Floor,
Federal Building, 100 S. Clinton St., Syracuse, New York
13261-7367. Any paper sent by a party to the Court or the
Clerk must be accompanied by a certificate showing that
a true and correct copy of it was mailed to all opposing
parties or their counsel. Any document received by the Clerk
or the Court which does not include a proper certificate of
service will be returned, without processing. Plaintiff must
comply with requests by the Clerk's Office for any documents
that are necessary to maintain this action. All parties must
comply with Local Rule 7.1 of the Northern District of New
York in filing motions, which must be returnable before the
assigned Magistrate Judge with proper allowance for notice as
required by the Rules. Plaintiff is also required to promptly
notify the Clerk's Office and all parties or their counsel of
any change in his address; his failure to do so will result
in the dismissal of this action. All motions will be decided
on submitted papers without oral argument unless otherwise
ordered by the Court; and it is further
ORDERED, that the Clerk serve a copy of this Order on
plaintiff by regular mail.
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2007 WL 607341
Footnotes
1 Plaintiff was granted leave to proceed with this action in forma pauperis. Mem.-Decision and Order (Dkt.
No. 7).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 8:25-cv-00416-BKS-ML Document 33 Filed 10/29/25 Page 24 of 105

Flores v. Levy, Not Reported in F.Supp.2d (2008)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2008 WL 4394681
Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
Ramon FLORES, Plaintiff,
v.
Steve LEVY, Thomas J. Spota, III, Wilma
Peterson, Louis J. Ohlig, Edward Vitale, Douglas
M. O'connor, John A.Bray, Linda Kevins,
John Scarglato, Dana Brown, Defendants.
No.
07
-
CV
-
3753
(JFB)(WDW).
|
Sept. 23, 2008.
*** Start Section
...
Attorneys and Law Firms
Ramon Flores, pro se.
Wilma Peterson, pro se.
Assistant Suffolk County Attorney Brian C. Mitchell,
Hauppauge, NY, for defendants Thomas J. Spota III, Linda
Kevins, John Scarglato, Dana Brown and Steve Levy.
Amy M. Monahan of L'Abbate, Balkan, Colavitta & Contini
LLP, Garden City, NY, for defendants Robert C. Mitchell,
Edward Vitale, and Douglas O'Connor.
MEMORANDUM AND ORDER
JOSEPH F. BIANCO, District Judge.
*1 Plaintiff Ramon Flores (“plaintiff” or “Flores”), brings
this action against Suffolk County Executive Steve Levy
(“Levy”), Suffolk County District Attorney Thomas J. Spota
III (“Spota”), Assistant District Attorneys Linda Kevins
(“Kevins”), Dana Brown (“Brown”), and John Scarglato
(“Scarglato”) (collectively, “defendant prosecutors”), Suffolk
County Court Judge Louis J. Ohlig (“Judge Ohlig”)
(collectively, “County Defendants”), Legal Aid Society
Attorneys Robert C. Mitchell (“Mitchell”), Edward “Ed”
Vitale (“Vitale”), and Douglas M. O'Connor (“O'Connor”)
(collectively, “Legal Aid defendants”), John A. Bray, and
Wilma Peterson, alleging malicious prosecution, conspiracy
under 42 U.S.C. § 1983, and deliberate indifference, all
arising from defendant's prosecution.
Defendants moved to dismiss the claims pursuant to
Fed.R.Civ.P. 12(c). For the following reasons, defendants'
motions are granted.
I. BACKGROUND
A. Facts
The following facts are taken from the complaint and are not
findings of fact by the court. The Court assumes these facts to
be true for the purpose of deciding this motion and construes
them in the light most favorable to plaintiff, the non-moving
party.
On February 20, 2003, Flores was arrested in Suffolk County
and charged with one count of criminal assault in the second
degree and one count of criminal contempt in the first degree.
(Compl.¶ 1.) On February 25, 2003, an unidentified man came
to see Flores and told him it was not advisable that he testify
before the grand jury. (Compl.¶ 3.) The unidentified man
stated that he was not an attorney and that he could not answer
any additional questions. (Compl.¶ 3.) Later that afternoon,
plaintiff appeared before the court and was provided with
what he believed to be Legal Aid counsel. (Compl.¶ 4.)
On March 5, 2003, plaintiff was taken to the Suffolk County
Court and arraigned on indictment 493-03, which charged
plaintiff with: 3 counts of assault in the second degree, 2
counts of criminal contempt in the first degree, aggravated
contempt, and menacing. (Compl.¶ 4.) Plaintiff informed the
court that he still had no formal attorney of record. (Compl.¶
4A.) The Court appointed a Legal Aid attorney to represent...
*** Start Section
... testified before the grand jury that plaintiff had “knocked
out her teeth” thereby implying that there was a loss
of actual teeth, when, in fact, it was “broken bridge
work.” (Compl.¶ 9Ai.) Plaintiff alleges that the prosecution
knew this testimony was false because the medical records
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Flores v. Levy, Not Reported in F.Supp.2d (2008)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
in the prosecution's possession indicated that it was broken
bridge work and not a loss or break of actual teeth. (Compl.¶
9Aii.) Plaintiff concludes that the additional first degree
assault charge was added as a punitive tactic designed to
silence and stop plaintiff from “asserting and continuing to
petition for redress” of his constitutional right to counsel.
(Compl.¶ 9B.)
In August of 2004, plaintiff was tried on the eight
counts contained within the second indictment. (Compl.¶
11.) Plaintiff alleges that, on August 4, 2004, on direct
examination, Wilma Peterson falsely testified that plaintiff
had knocked out her teeth. (Compl.¶ 13.) On August 5, 2004,
Brown alluded to the fact that Ms. Peterson had the “knocked
out teeth” repaired with bridge work. (Compl.¶ 14.) Plaintiff
shouted out that the alleged injury was broken bridge work
and not actually teeth. (Compl.¶ 14A.) The Court then asked
Ms. Peterson whether plaintiff broke her teeth or bridge work.
(Compl.¶ 14A.) Ms. Peterson responded that it was bridge
work which wasbroken by plaintiff's actions. (Compl.¶ 14A.)
The prosecution allegedly failed to elicit a recantation from
Ms. Peterson as to her testimony that she lost actual teeth.
(Compl.¶ 14B.)
*3 On September 2, 2004, after a...
*** Start Section
... Degree charge was the prosecution's failure to establish
“serious physical injury,” especially in the absence of
testimony by a medical expert regarding the victim's
condition. See September 2, 2004 Decision (Attached to
Compl. at A-3) (“While the photographs introduced into
evidence by the People did establish that the victim did suffer
considerable bruises and a knife wound, these injuries did not
rise to the level of serious under the definition found in the
Penal Law.”).
B. Procedural History
On September 5, 2007, plaintiff filed this complaint
alleging malicious prosecution, conspiracy, and deliberate
indifference. On January 31, 2007, the Legal Aid defendants
moved to dismiss the complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6). On February 1, 2008, the County
Defendants moved to dismiss the complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6). On May 2, 2008,
pro se defendant Wilma Peterson filed an answer to the
complaint. On May 27, 2008, plaintiff filed an opposition to
defendants' motions to dismiss. On June 2, 2008, the Legal
Aid defendants filed their reply brief. On June 6, 2008, the
County defendants filed their reply brief. On June 22, 2008,
Ms. Peterson moved to dismiss pursuant to Federal Rule of
Civil Procedure 12(b) (6). On September 2, 2008, plaintiff
filed his opposition to Ms. Peterson's motion.
C. Defendant's Motion to Strike
On August 8, 2008, pro se plaintiff filed a motion to strike Ms.
Peterson's motion to dismiss. In particular, plaintiff objected
to the fact that he did not receive copies of certain exhibits
that Peterson attempted to file under seal with her motion
to dismiss, which the Court declined to accept for filing and
returned to the defendant because they were unnecessary for
purposes of deciding the motion to dismiss and would not
be considered by the Court. For the reasons discussed below,
plaintiff's request to strike the motion on such grounds is
frivolous.
On July 22, 2008, in connection with her motion to dismiss,
pro se defendant attempted to file certain exhibits that
consisted of medical records, which she requested be placed
under seal and not provided to plaintiff. The purpose of these
exhibits was to corroborate Ms. Peterson's description in her
affidavit of the injuries, which she testified resulted from
plaintiff's assault on her, and to explain why she mistakenly
described her broken bridge work as her bottom teeth:
*4 The plaintiff did punch me in my mouth, and, as I
relived my horrific ordeal during my testimony in front of
a second Grand Jury, I mistakenly described my broken
bridge work as my bottom teeth. However, I did not
conspire with anyone to make any misleading statements.
I was only trying to relate the...
*** Start Section
... lip and punctured a hole in my bottom lip. As to date, I
continue to suffer from nerve damage in my bottom lip. I
have a permanent two and a half inch scar inside my bottom
lip and a scar outside of my bottom lip from the punctured
hole.
I have bruises all over my body. I had to see an optometrist
for treatment of trauma to my eye. I have permanent scars
on my forehead, hands and left leg. I continue to suffer from
nerve damage in my left leg where he stabbed me with a
knife. The plaintiff kicked me, very hard, in my lower back,
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Flores v. Levy, Not Reported in F.Supp.2d (2008)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 3
thus, exacerbating a prior injury to my lower back that the
plaintiff was aware of before he assaulted me. I now have
facet damage in my lower back. And I am in constant pain.
(Peterson Affidavit, at 2-3) (citations omitted).
On July 22, 2008, the Court issued an order declining to
accept these medical exhibits because the Court, for purposes
of a motion to dismiss under Rule 12(b)(6), must accept the
factual allegations set forth in the complaint as true, and
draw all reasonable inferences in favor of the plaintiff. See
Cleveland v. Caplaw Enter., 448 F.3d 518, 521 (2d Cir.2006);
Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d
Cir.2005). Thus, “the district court is normally required to
look only to the allegations on the face of the complaint.”
Roth v. Jennings, 489 F.3d 499, 509 (2d Cir.2007). Given this
standard, the Court explained in the July 22 Order:
In the instant case, under this standard,
the Court may not consider these
medical records in connection with
the motion to dismiss; rather, the
Court will determine whether the
allegations in the complaint state a
legal claim against the defendant. In
other words, consideration of these
medical exhibits is unnecessary for
purposes of deciding the motion.
Therefore, the Court is declining to
accept these exhibits at this time and
the Clerk of the Court shall return them
to plaintiff. Because Exhibits C-G are
not being accepted or considered by
the Court, her application to have the
records sealed is moot and defendant
need not serve such exhibits on
defendant.
*5 (July 22, 2008 Order, at 1-2.)
Although plaintiff contends in his motion to strike that he
cannot reply to defendant's submission without such exhibits,
that argument is frivolous. As noted above, the Court has
assumed his allegations in the complaint to be true and
has not considered these exhibits. In fact, that is the reason
the Court declined to accept them. Moreover, none of the
factual information contained in Ms. Peterson's affidavit, and
recited above, is pertinent to the legal issues in the motion
to dismiss. Specifically, the primary issues, as discussed
infra, based upon the allegations in the complaint, are (1)
whether the private actor defendants (namely, Ms. Peterson
and plaintiff's court-appointed attorneys) can be sued under
Section 1983, and (2) whether the prosecutors have absolute
immunity. The nature and extent of Ms. Peterson's injuries,
as well as any medical records corroborating such injuries,
have no relevance to the consideration of these legal
issues. There is no basis to require Ms. Peterson to supply
these materials to plaintiff, and unnecessarily reveal private
medical information, where the Court rejected them for filing
because they have no relevance at the motion to dismiss stage
in determining whether plaintiff has a plausible Section 1983
claim. Therefore, plaintiff's motion to strike the defendant's
motion was denied on August 21, 2008, and he was directed
to file his opposition by September 15, 2008, which plaintiff
did do.
D. Standard of Review
In reviewing a motion to dismiss under Rule 12(b)(6), a court
must accept the factual allegations set forth in the complaint
as true, and draw all reasonable inferences in favor of the
plaintiff. See Cleveland v. Caplaw Enter., 448 F.3d 518, 521
(2d Cir.2006); Nechis v. Oxford Health Plans, Inc., 421 F.3d
96, 100 (2d Cir.2005). The plaintiff must satisfy “a flexible
‘plausibility’ standard, which obliges a pleader to amplify a
claim with some factual allegations in those contexts where
such amplification is needed to render the claim plausible.”
Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir.2007) (emphasis
in original). “[O]nce a claim has been stated adequately, it
may be supported by showing any set of facts...
*** Start Section
... of specifics, but only enough facts to state a claim to relief
that is plausible on its face.” Id.
Moreover, as the Second Circuit recently emphasized in
Sealed Plaintiff v. Sealed Defendant, “[o]n occasions too
numerous to count, we have reminded district courts that
when [a] plaintiff proceeds pro se, ... a court is obliged to
construe his pleadings liberally.... This obligation entails, at
the very least, a permissive application of the rules governing
theform of pleadings.... This is particularly so when the pro
se plaintiff alleges that her civil rights have been violated.
Accordingly, the dismissal of a pro se claim as insufficiently
pleaded is appropriate only in the most unsustainable of
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Flores v. Levy, Not Reported in F.Supp.2d (2008)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 4
cases.” Sealed Plaintiff v. Sealed Defendant, No. 06-1590-cv,
2008 U.S.App. LEXIS 17113, at * 15-* 16 (2d Cir. Aug. 12,
2008) (citations and quotation marks omitted); see also Weixel
v. Bd. of Educ. of the City of N.Y., 287 F.3d 138, 145-46 (2d
Cir.2002) (holding that when plaintiff is appearing pro se, the
Court shall “ ‘construe [his complaint] broadly, and interpret
[it] to raise the strongest arguments that [it] suggests.’ ”)
(quoting Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir.2000));
accord Sharpe v. Conole, 386 F.3d 483, 484 (2d Cir.2004).
*6 Finally, in connection with a motion to dismiss under
Rule 12(b) (6), as noted above, the Court may only consider
“facts stated in the complaint or documents attached to the
complaint as exhibits or incorporated by reference.” Nechis,
421 F.3d at 100; accord Kramer v. Time Warner Inc., 937 F.2d
767, 773 (2d Cir.1991). Here, plaintiff...
*** Start Section
... ordinarily is not a state actor amenable to suit under §
1983.”) (citations omitted); Rodriguez v. Weprin, 116 F.3d
62, 65-66 (2d Cir.1997) (affirming dismissal of Section 1983
claim against court-appointed appellate attorney for alleged
involvement in denial of speedy appeal and noting that “it
is well-established that court-appointed attorneys performing
a lawyer's traditional functions as counsel to defendant do
not act ‘under color of state law’ and therefore are not
subject to suit under 42 U.S.C. § 1983”) (collecting cases);
Housand v. Heiman, 594 F.2d 923, 924-25 (2d Cir.1979)
(“[P]ublic defenders or court-appointed defense attorneys do
not ‘act under color of law.’ ”); Sanchez v. Gazzillo, No.
00-CV-6405 (JS)(MLO), 2001 U.S. Dist. LEXIS 7786, at *
17 (E.D.N.Y. June 5, 2001) (dismissing Section 1983 claim
against plaintiff's Legal Aidattorneys). Similarly, with respect
to Ms. Peterson, the fact that plaintiff alleges that she perjured
herself as a witness at his trial does not transform her into
a state actor. See, e.g., Elmasri v. England, 111 F.Supp.2d
212, 221 (E.D.N.Y.2000) (“[T]he mere fact that an individual
testifies at a court proceeding does not render that person a
state actor.”) (citing Briscoe, 460 U.S. at 329-30); see also
Mitchell v. Mid-Erie Counseling Service, No. 05-CV6169
CJS(P), 2005 WL 1579810, at *3 (W.D.N.Y. June 29, 2005) (“
‘A witness testifying in a state court proceeding-even if [she]
is a state employee who has perjured [herself]-has not acted
under color of state law for purposes of § 1983.’ ”) (quoting
McArthur v. Bell, 788 F.Supp. 706, 710 (E.D .N.Y.1992)).
Although these individuals are clearly not state actors, the
Court recognizes that a private actor can be considered as
acting under the color of state law for purposes of Section
1983 if the private actor was “ ‘a willful participant in joint
activity with the State or its agents.’ “ See Ciambriello, 292
F.3d at 324 (quoting Adickes v. S.H. Kress & Co., 398 U.S.
144, 152, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)) (citation
omitted). This potential liability also applies to a court-
appointed attorney where the attorney “conspires with a state
official to violate the plaintiff's constitutional rights.” Fisk v.
Letterman, 401 F.Supp.2d 362, 378 (S.D.N.Y.2005). Thus,
the Court will next examine plaintiff's conspiracy claim to
determine whether the allegations...
*** Start Section
... “collusion” does not instantly transform a private actor
into a state actor for purposes of Section 1983 and is clearly
insufficient to satisfy Rule 12(b) (6) in connection with a
Section 1983 conspiracy claim. See Ciambriello, 292 F.3d at
324 (“A merely 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.”). Instead, “[i]n order to
survive a motion to dismiss on a § 1983 conspiracy claim, the
plaintiff must allege (1) an agreement between two or more
state actors, (2) concerted acts to inflict an unconstitutional
injury, and (3) an overt act in furtherance of the goal.”
Carmody v. City of New York, No. 05-CV-8084 (HB), 2006
U.S. Dist. LEXIS 25308, at *16 (S.D.N.Y. May 11, 2006)
(citing Ciambriello v. County of Nassau, 292 F.3d 307,
324-35 (2d Cir.2002)). Vague and conclusory allegations that
defendants have engaged in a conspiracy must be dismissed.
See Ciambriello, 292 F.3d at 325 (dismissing conspiracy
allegations where they were found “strictly conclusory”); see
also Walker v. Jastremski, 430 F.3d 560, 564 n. 5 (2d Cir.2005)
(“[C]onclusory or general allegations are insufficient to state
a claim for conspiracy under § 1983.”) (citing Ciambriello);
Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir.1983) (“A
complaint containing only conclusory, vague, or general
allegations of conspiracy to deprive a person of constitutional
rights cannot withstand a motion to dismiss.”); Green v.
Bartek, No. 3:05-CV-1851, 2007 WL 4322780, at *3 (D...
*** Start Section
... against his Legal Aid attorneys cannot survive a motion
to dismiss. See also Green v. Bartek, No. 3:05CV1851
(SRU), 2007 WL 4322780, at *3 (D.Conn. Dec. 7, 2007)
(dismissing Section 1983 claim against plaintiff's appointed
attorney in Family Court where, “[a]lthough [plaintiff]
includes several statements regarding an alleged conspiracy,
he includes no facts to support this claim”); Williams v.
Jurow, No. 05 Civ. 6949(DAB), 2007 WL 5463418, at *12
(S.D.N.Y. June 29, 2007) (“Since plaintiff has alleged no
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facts that would, even if accepted as true, establish that the
Legal Aid Defendants' conduct constituted state action, the
constitutional claims against them should be dismissed.”)
(report and recommendation); Brewster v. Nassau County,
349 F.Supp.2d 540, 547 (E.D.N.Y.2004) (dismissing Section
1983 claim against Legal Aid Society where plaintiff alleged
in a conclusory fashion that Legal Aid waived his rights
and failed to adequately represent him in order to “benefit
themselves and/or District Attorney,” but did “not actually
allege[ ] any facts indicating an agreement to act in concert
to harm him”); Hom v. Brennan, 304 F.Supp.2d 374, 378-79
(E.D.N.Y.2004) (dismissing Section 1983 claim against
supervising attorney with the Nassau-Suffolk Law Services
because “plaintiff fails to allege with particularity what the
alleged conspiracy is, the purpose of the conspiracy, who
was involved in the conspiracy, the existence of an act
in furtherance of the conspiracy, or that he was injured
as a result of the conspiracy”); Braxton v. Brown, No. 96
CV 187, 1997 WL 43525, at *3 (E.D.N.Y. Jan. 28, 1997)
(“Nothwithstanding the latitude afforded a pro se complaint,
plaintiff fails to allege any facts supporting an inference
that the Defense Attorney defendants colluded with the
District Attorney defendants. While plaintiff's allegations
might support a state law malpractice action against his
former defense attorneys, they do not support a federal court's
exercise of jurisdiction under Section 1983.”).
*11 In sum, having failed to sufficiently allege a conspiracy
cause of action between Ms. Peterson, the Legal Aid
defendants, and any state actor, the Court dismisses the
Section 1983 claim against Ms. Peterson and the Legal Aid
defendants. 2
(3) Other Defects in Claims
against the Legal Aid Defendants
In addition to the legal defects discussed in detail above,
there are a number of other grounds set forth by the Legal
Aid defendants which independently require dismissal of
plaintiff's claims against them as a matter of law.
First, although plaintiff claims that his constitutional rights
were violated by the Legal Aid defendants because they
failed to ensure his right to appear before the grand jury and
testify, it is axiomatic that there is no constitutional right to
testify before the grand jury. See Burwell v. Superintendent
of Fishkill Correctional Facility, No. 06 Civ. 787(JFK), 2008
WL 2704319, at *8 (S.D.N.Y. July 10, 2008) (“[T]here is no
federal constitutional right to testify before the grand jury. In
fact, there is no federal right to a grand jury in state criminal
prosecutions.”); Affser v. Murray, No. 04 CV 2715, 2008
WL 2909367, at *7 (E.D.N.Y. July 28, 2008) (“[C]ounsel's
alleged failure to secure petitioner's presence before the grand
jury does not constitute ineffective assistance”) (collecting
cases). Thus, any claimed deprivation of such a right is not
actionable under Section 1983. See Frankos v. LaVallee, 535
F.2d 1346, 1348 n. 3 (2d Cir.1976) (“The complaint alleges
that appellees successfully conspired to prevent appellant
from testifying at a grand jury investigation of the prison
stabbing and that attorney Wylie was incompetent in handling
plaintiff's request to testify there. Since one must allege
deprivation of a constitutional right under 42 U.S.C. § 1983
and 42 U.S.C. § 1985, and there is no claim that there is a
constitutional right to testify at a grand jury proceeding, the
judgment of dismissal...
*** Start Section
...3.
“It is by now well established that a state prosecuting attorney
who acted within the scope of his duties in initiating and
pursuing a criminal prosecution is immune from a civil suit
for damages under § 1983.” Shmueli v. City of New York, 424
F.3d 231, 236 (2d Cir.2005) (quoting Imbler v. Pachtman,
424 U.S. 409, 410, 431 (1976) (citation and quotation marks
omitted)). “[D]istrict courts are encouraged to determine the
availability of an absolute immunity defense at the earliest
appropriate stage, and preferably before discovery.... This is
because ‘[a]n absolute immunity defeats a suit at the outset,
so long as the official's actions were within the scope of
the immunity.’ “ Deronette v. City of New York, No. 05-
CV-5275, 2007 U.S. Dist. LEXIS 21766, at * 12 (E.D.N.Y.
Mar. 27, 2007) (citing Mitchell v. Forsyth, 472 U.S. 511,
526 (1985) and quoting Imbler, 424 U.S. at 419 n. 13).
However, the Second Circuit has held that in the context of
a motion to dismiss under Rule 12(b)(6), “when it may not
be gleaned from the complaint whether the conduct objected
to was performed by the prosecutor in an advocacy or an
investigatory role, the availability of absolute immunity from
claims based on such conduct cannot be decided as a matter
of law on a motion to dismiss.” Hill v. City of New York, 45
F.3d 653, 663 (2d Cir.1995).
*13 “In determining whether absolute immunity obtains,
we apply a ‘functional approach,’ looking to the function
being performed rather than to the office or identity of the
defendant.” Hill, 45 F.3d at 660...
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*** Start Section
... Cir. Dec. 12, 2007) (quoting Imbler, 424 U.S. at 430);
Hill, 45 F.3d at 661 (same). In particular, “[s]uch immunity ...
extends to acts undertaken by a prosecutor in preparing
for the initiation of judicial proceedings or for trial, and
which occur in the course of his role as an advocate for
the State.” Smith v. Bodak, 147 F.3d 91, 94 (2d Cir.1998)
(citation and quotation marks omitted). On the other hand,
“[w]hen a district attorney functions outside his or her role
as an advocate for the People, the shield of immunity is
absent. Immunity does not protect those acts a prosecutor
performs in administration or investigation not undertaken in
preparation for judicial proceedings.” Hill, 45 F.3d at 661; see
also Carbajal v. County of Nassau, 271 F.Supp.2d 415, 421
(E.D.N.Y.2003) (“[W]hen a prosecutor supervises, conducts,
or assists in the investigation of a crime, or gives advice as to
the existence of probable cause to make a warrantless arrest-
that is, when he performs functions normally associated with
a police investigation-he loses his absolute protection from
liability.”).
Once a court determines that a prosecutor was acting as
an advocate, “a defendant's motivation in performing such
advocative functions as deciding to prosecute is irrelevant to
the applicability of absolute immunity.” Shmueli, 424 F.3d at
237 (quoting Bernard, 356 F.3d at 502); see also Kleinman
v. Multnomah Cty., No. 03-1723-KI, 2004 U.S. Dist. LEXIS
21466, at * 18 (D.Or. Oct. 15, 2004) (“The Ninth Circuit has
interpreted Imbler to support absolute...
*** Start Section
... charge of first degree assault, as punishment for plaintiff's
protestations that he was denied his right to counsel. See id.
Plaintiff further alleges that this additional charge was added
as retribution due to plaintiff's grievances filed against the
defendant prosecutors and Judge Ohlig. See id. In addition,
plaintiff alleges that the defendant prosecutors knowingly
elicited false testimony from Ms. Peterson in order to
establish the necessary elements for first degree assault. (See
Compl. at 16.)
*14 “It is settled law that when a prosecutor presents
evidence to a grand jury and at trial he is acting as an advocate
and entitled to absolute immunity on claims that the evidence
presented was false.” Urrego v. U.S., No. 00 CV 1203, 2005
WL 1263291, at *2 (E.D.N.Y. May 27, 2005) (finding that
a prosecutor is entitled to absolute immunity where he was
alleged to have presented false evidence in order to obtain a
superceding indictment) (citing Buckley, 509 U .S. 260; Hill,
45 F.3d at 662; Bernard v. County of Suffolk, 356 F.3d 495,
505 (2d Cir.2003)); see also Storck v. Suffolk County Dep't
of Social Servs., 62 F.Supp.2d 927, 943 (E.D.N.Y.1999) (“A
prosecutor is also absolutely immune from charges alleging
the withholding of exculpatory evidence from a grand jury
and suppressing Brady material. An allegation of conspiracy
to perform the foregoing acts does not change the conclusion
that the acts are entitled to absolute immunity.”) (citations
omitted). “[A]bsolute immunity protects a prosecutor from §
1983 liability for virtually all acts, regardless of motivation,
associated with his function as an advocate. This would even
include ... allegedly conspiring to present false evidence at a
criminal trial.” Dory v. Ryan, 999 F.2d 679 (2d Cir.1993), as
modified at 25 F.3d 81, 83 (2d Cir.1994). In Tellier v. Petrillo,
plaintiff alleged that the United States attorneys had “formed
a conspiracy to...
*** Start Section
... in the complaint by plaintiff related to his claim that
they presented perjured testimony at trial. Finally, any claim
that the prosecutors deprived plaintiff of his right to testify
before the first grand jury is also within the ambit of absolute
immunity. 4 See, e.g., Phillips v. Eppolito, No. 02 Civ.
5662(DLC), 2004 WL 540481, at *2 (S.D.N.Y. March 17,
2004) (“The Complaint asserts that [the ADA] failed to permit
[plaintiff] to testify in front of the Grand Jury. The act of
failing to permit [plaintiff] to testify before a Grand Jury
falls within the scope of activities protected by the doctrine
of absolute immunity. Therefore, the claim of malicious
prosecution against [the ADA] must be dismissed.”); Braxton
v. Brown, No. 96 CV 187, 1997 WL 43525, at *2 (E.D.N.Y.
Jan. 28, 1997) (“Plaintiff's complaint against the District
Attorney defendants-that they denied him the right to testify
before the Grand Jury-is based on their presentation of a case
before the Grand Jury. It therefore falls within the scope of
the prosecutors' absolute immunity.”).
*15 Accordingly, plaintiff's claims against the defendants
Spota, Kevins, Scarglato, and Brown are dismissed based on
the doctrine of absolute immunity. 5
C. Deliberate Indifference
Defendants also move to dismiss the claim for “deliberate
indifference” to the alleged violations of his constitutional
rights. As a threshold matter, any attempt to assert such a
claim against the District Attorney, or the Assistant District
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Attorneys or Judge Ohlig, must be dismissed based on the
doctrine of absolute immunity as described supra. Similarly,
any attempt to bring such a claim against the private actor
defendants-Ms. Peterson, the Legal Aid defendants, or court-
appointed attorney Bray-must be dismissed for the reasons
outlined supra.
With respect to the only remaining defendant, County
Executive Steve Levy, there is simply no plausible cause of
action under Section 1983. To the extent plaintiff is attempting
to sue Mr. Levy in his individual capacity, it is beyond cavil
that the County Executive cannot be held responsible for
the actions of the independently-elected District Attorney's
decision to indict and prosecute a defendant. Similarly, to the
extent that Mr. Levy is being sued in his official capacity in an
attempt to allege some type of municipal liability against the
County, that claim must also fail as a matter of law. A district
attorney in New York State, when prosecuting a criminal
matter, acts in a quasi-judicial manner and represents the
State, not the County. Thus, a county cannot establish policy
in connection with how a district attorney should prosecute
New York State penal laws. Therefore, no municipal liability
can arise from the District Attorney's decision to prosecute.
In short, plaintiff has failed to articulate any plausible claim
for municipal liability given his allegations in the complaint.
Accordingly, the claim against the County Executive and any
municipal liability claim must be dismissed as a...
*** Start Section
... standard, this Court finds that any attempt to amend the
pleading in this case would be futile. 6 As discussed in detail
supra, it is clear from the complaint (as well as plaintiff's
detailed submissions in opposition to the motion) that he
does not have any possibility of asserting a plausible Section
1983 claim. This lawsuit is a blatant and frivolous attempt to
sue private actors-such as the key prosecution witness (Ms.
Peterson) and his court-appointed criminal defense attorneys-
because he believes that they separately contributed to his
indictment and conviction, even though such actors clearly
do not have Section 1983 liability given the allegations in
plaintiff's complaint. See, e.g., Contes v. City of New York,
No. 99 Civ. 1597(SAS), 1999 WL 500140, at *11 (S.D.N.Y.
July 14, 1999) (“It would be futile to grant leave to replead
in this case. Without state action, which is lacking here,
[plaintiff] cannot prevail on a claim pursuant to § 1983.”).
Similarly, plaintiff sues the District Attorney and ADAs
even though their alleged wrongful conduct in the grand
jury and at trial, which is described in the complaint, is
clearly protected by absolute immunity. In essence, plaintiff
is primarily seeking to re-litigate issues, via this civil lawsuit,
that he unsuccessfully challenged on direct appeal in seeking
to have his conviction overturned against parties who have
no Section 1983 liability even if the facts alleged in his
complaint are true. After carefully reviewing all of plaintiff's
submissions, it is abundantly...
*** Start Section
...
Footnotes
1 As a threshold matter, there is a substantial question as to whether plaintiff can proceed at all on a malicious
prosecution claim for his acquitted counts because they were so closely intertwined with his counts of
conviction and are both felonies. The Court recognizes that, in contrast to false arrest claims, the Second
Circuit has noted that a conviction on one claim does not necessarily absolve liability under § 1983 for
malicious prosecution as to other criminal charges which were resolved favorably to plaintiff. See Janetka v.
Dabe, 892 F.2d 187, 190 (2d Cir.1989) (holding that claim of malicious prosecution on charge of resisting
arrest, of which plaintiff was acquitted, was not barred by his conviction for disorderly conduct); see also Posr
v. Doherty, 944 F.2d 91, 100 (2d Cir.1991) (highlighting “the need to separately analyze the charges claimed
to have been maliciously prosecuted”). Thus, for the same reasons in this case, a conviction on assault in
the second degree does not necessarily bar a malicious prosecution claim on assault in the first degree or
attempted assault in the first degree; rather, the Court should analyze a number of factors, including the
relative seriousness of the two offenses, “whether the elements of each charge are different, whether one
charge is a lesser included offense of the other, and whether the alleged actions were directed at different
people.” Pichardo v. N.Y. Police Dep't., No. 98-CV-429 (DLC), 1998 WL 812049, at *3 (S.D.N.Y. Nov. 18,
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1998) (citing Janetka, 892 F.2d at 190); see also Ostroski v. Town of Southold, 443 F.Supp.2d 325, 335-40
(E.D.N.Y.2006) (discussing factors). Analyzing the various factors in the instant case-including that both
crimes are felonies (and thus are both serious crimes), and arose out of the same incident-the Court concludes
that the existence of probable cause as to the counts of conviction should preclude a malicious prosecution
claim on the acquitted counts. In fact, as the judge who presided over the bench trial noted, the basis for the
acquittal on the assault in the first degree (despite the conviction for assault in the second degree) was the
prosecution's failure to demonstrate serious injury. Thus, the acquitted charges are “so closely intertwined
with the offense of conviction that there is no reasonable basis to conclude that the [dismissal of] these
charges is sufficiently distinct to support a claim of malicious prosecution.” Pichardo, 1998 WL 812049, at *4
(finding conviction on misdemeanor charge precluded malicious prosecution on felony assault count arising
out of same incident). In any event, the Court finds that there are numerous other grounds for dismissal of
the case, discussed in detail infra.
2 Defendant John A. Bray is the court-appointed attorney who replaced the Legal Aid defendants in defending
plaintiff in his criminal case. (Compl.¶ 6.) Although defendant Bray has never appeared in this action (and it
is unclear whether he was ever served), the Court dismisses the claims against him sua sponte because, like
the Legal Aid defendants, he is not a state actor. Plaintiff has failed to state a cause of action under Section
1983 against him and plaintiff's claim against Bray, like the other claims in this case, is frivolous. See, e.g.,
Liner v. Goord, 196 F.3d 132, (2d Cir.1999) (holding that district court is authorized to “dismiss the complaint
sua sponte if, among other things, the complaint is ‘frivolous, malicious, or fails to states [sic] a claim upon
which relief may be granted’ ”) (quoting 28 U.S.C. § 1915(a) & (b)(1)).
3 The Legal Aid defendants also note that the plaintiff appealed his conviction and raised all of the identical
arguments he now asserts in this civil lawsuit regarding alleged defects in the indictment, malicious
prosecution, and ineffective assistance of counsel. The Appellate Division, Second Department denied his
appeal and found his arguments were without merit. See People v. Flores, 40 A.D. 876, 878 (2d Dep't 2007)
(“The defendant's remaining contentions, including those raised in his supplemental pro se brief, that the
indictment was defective, that he was maliciously prosecuted, and that he was deprived of the effective
assistance of counsel, are without merit.”). The Court of Appeals also denied Flores leave to appeal. See
People v. Flores, 9 N.Y .3d 875 (2007).
4 To the extent that plaintiff is attempting to argue that absolute immunity should not apply because of some
conspiracy between the County Defendants and private actors (such as the Legal Aid defendants and Ms.
Peterson), that claim also fails for the reasons discussed in great detail in connection with the Legal Aid
defendants and Ms. Peterson. Specifically, plaintiff alleges nothing more than conclusory allegations of
conspiracy which are insufficient to survive a motion to dismiss.
5 Plaintiff also alleges that Judge Ohlig conspired with the Legal Aid defendants and the defendant prosecutors
to maliciously prosecute the plaintiff. Although Judge Ohlig has failed to appear in the case, the Court, sua
sponte, finds that Judge Ohlig is entitled to absolute immunity. “A judge defending against a section 1983
suit is entitled to absolute immunity from damages for actions performed in his judicial capacity.” Fields v.
Soloff, 920 F.2d 1114, 1119 (2d Cir.1990). Where a judge is acting in a judicial capacity, no liability exists
even if the judicial action “was in error, was done maliciously, or was in excess of his authority; rather, he will
be subject to liability only when he has acted in the clear absence of all jurisdiction.” Stump v. Sparkman, 435
U.S. 349, 356-57 (1978). “[F]undamentally, since absolute immunity spares the official any scrutiny of his
motives, an allegation that an act was done pursuant to a conspiracy has no greater effect than an allegation
that it was done in bad faith or with malice, neither of which defeats a claim of absolute immunity.” Dorman
v. Higgins, 821 F.2d 133, 139 (2d Cir.1987). Plaintiff alleges that the judge failed to rule on plaintiff's motion
and back-dated his ruling. Any action taken by Judge Ohlig in connection with rendering a decision or acting
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upon plaintiff's motion is clearly within the judicial capacity of the court. Accordingly, Judge Ohlig is absolutely
immune from suit and plaintiff's claims against Judge Ohlig are dismissed.
...
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Franklin v. Warren County D.A.'s Office, Not Reported in F.Supp.2d (2009)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2009 WL 161314
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Harry L. FRANKLIN, Plaintiff,
v.
WARREN COUNTY D.A.'s OFFICE, et al., Defendants.
Civ. No. 1:08–CV–801 (GLS/RFT).
|
Oct. 10, 2008.
West KeySummary
1 Civil Rights Criminal prosecutions
Constitutional Law Appearance and
testimony of accused
Grand Jury Presence of accused or
counsel
A convicted defendant's due process rights were
not violated when he was denied or prevented
from appearing before a grand jury as there was
no federal constitutional right to testify before a
grand jury. Many of defendant's claims resonated
as challenges to his underlying conviction and
thus were not cognizable pursuant to an action
under § 1983 for civil rights violations. U.S.C.A.
Const.Amend. 14; 42 U.S.C.A. § 1983.
11 Cases that cite this headnote
Attorneys and Law Firms
Harry L. Franklin, Ray Brook, NY, pro se.
No Appearance on Record for the Defendants.
REPORT RECOMMENDATION and ORDER
RANDOLPH F. TREECE, United States Magistrate Judge.
*1 The Clerk has sent to the Court for review a civil
rights Complaint, pursuant to 42 U.S.C. § 1983, from pro
se Plaintiff Harry L. Franklin, who is currently incarcerated
at Adirondack Correctional Facility. Dkt. No. 1, Compl.
Plaintiff has also filed a Motion to Proceed In Forma
Pauperis and an Inmate Authorization Form. Dkt. Nos. 2–
3. By his Complaint, Plaintiff asserts that Kate Hogan, the
District Attorney who criminally prosecuted him in Warren
County Court, and John Wappett, the Public Defender who
represented him, violated Franklin's Fourteenth Amendment
due process right when they denied and/or prevented him
from appearing before the grand jury. Franklin also accuses
Ms. Hogan of violating his right to a speedy trial. Lastly,
Plaintiff asserts that the Honorable John Hall, Jr., violated
his Eighth Amendment right against excessive bail. For a
complete statement of Plaintiff's claims, reference is made to
the Complaint.
II. DISCUSSION
A. In Forma Pauperis Application
Turning first to Plaintiff's Motion to Proceed with this Action
In Forma Pauperis, after reviewing the entire file, the Court
finds that Plaintiff may properly proceed with this matter in
forma pauperis.
B. Plaintiff's Complaint
Section 1915(e) of Title 28 of the United States Code directs
that, when a plaintiff seeks to proceed in forma pauperis,
“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).
Thus, it is a court's responsibility to determine that a plaintiff
may properly maintain his complaint before permitting him
to proceed with his action.
Moreover, under 28 U.S.C. § 1915A, a court must, as soon as
practicable, sua sponte review “a complaint in a civil action
in which a prisoner seeks redress from a governmental entity
or officer or employees of a governmental agency” and must
“identify cognizable claims or dismiss the complaint, or any
portion of the complaint, if the complaint (1) is frivolous,
malicious, or fails to state a claim upon which relief may be
granted; or (2) seeks monetary relief from a defendant who
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is immune from such relief.” 28 U.S.C. §§ 1915A(a) & (b);
see also Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir.1999) (per
curiam ).
Plaintiff brings this action pursuant to 42 U.S.C. § 1983,
which “establishes a cause of action for ‘the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws' of the United States.” German v.
Fed. Home Loan Mortgage Corp., 885 F.Supp. 537, 573
(S.D.N.Y.1995) (quoting Wilder v. Virginia Hosp. Ass'n, 496
U.S. 498, 508, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990) &
42 U.S.C. § 1983); see also Myers v. Wollowitz, 1995 WL
236245, at *2 (N.D.N.Y. Apr.10, 1995) (stating that “ § 1983
is the vehicle by which individuals may seek redress for
alleged violations of their constitutional rights”).
*2 Plaintiff's § 1983 action is problematic on multiple fronts.
First, he fails to state causes of action for which relief can
be granted; second, he has named parties who are absolutely
immune from suit; third, at least one party has not acted under
color of state law; and, fourth, the entire action is barred by
Heck v. Humphrey. We address each of these obstacles below.
Plaintiff claims his due process rights and his right to
confront his accuser were violated when Defendants Hogan
and Wappett impeded his ability to attend the grand jury
proceedings. However, there is no federal constitutional right
to testify before a grand jury, nor, for that matter, is there even
a federal right to a grand jury in state criminal proceedings.
Burwell v. Supt. of Fishkill Corr. Fac ., 2008 WL 2704319,
at *8 (S.D.N.Y. July 10, 2008) (citing, inter alia, Branzburg
v. Hayes, 408 U.S. 665, 688 n. 25, 92 S.Ct. 2646, 33
L.Ed.2d 626 (1972)). Aside from failing to state actionable
constitutional claims, at least two of the named Defendants,
Kate Hogan and Judge Hall, are absolutely immune from
suit. Young v. Selsky, 41 F.3d 47, 51 (2d Cir.1994) (noting
that “[j]udges enjoy absolute immunity from personal liability
for acts committed within their judicial jurisdiction”); Collins
v. Lippman, 2005 WL 1367295, at *3 (E.D.N.Y. June 8,
2005) (judicial immunity applies to actions seeking monetary
and injunctive relief); see also Dory v. Ryan, 25 F.3d 81,
83 (2d Cir.1994) (noting that prosecutors are absolutely
immune from liability under § 1983 in matters involving the
prosecution). And, with regard to Defendant Wappett, it is
well-settled that parties may not be held liable under § 1983
unless it can be established that they have acted under the
color of state law. See, e.g., Rounseville v. Zahl, 13 F.3d
625 (2d Cir.1994) (noting state action requirement under §
1983); Wise v. Battistoni, 186 A.D.2d 629, 588 N.Y.S.2d 412,
1992 WL 280914, at *1 (S.D.N.Y. Dec. 10, 1992) (same)
(citations omitted). State action is an essential element of any
§ 1983 claim. See Gentile v. Republic Tobacco Co., 1995
WL 743719, at *2 (N.D.N.Y. Dec.6, 1995) (citing Velaire v.
City of Schenectady, 862 F.Supp. 774, 776 (N.D.N.Y.1994)
(citation omitted). Nowhere in his Complaint does Plaintiff
allege that Mr. Wappett was acting under color of state law,
and indeed, it is clear that a public defender, in representing
an indigent client, is not acting under color of state law. Polk
County v. Dodson, 454 U.S. 312, 321, 102 S.Ct. 445, 70
L.Ed.2d 509 (1981); Bourdon v. Loughren, 386 F.3d 88, 90
(2d Cir.2004) (noting that a claim for ineffective assistance of
counsel is not actionable in a § 1983 proceeding and further
citing Polk County for the proposition that public defenders
do not act under color of state law and are not subject to suit
under § 1983). We note that in the caption of his Complaint,
Plaintiff names the Warren County D.A.'s Office and the
Warren County Public Defenders, however, these entities are
not listed under the “Parties” section of his Complaint, nor
does he assert any facts or causes of action against such
entities. Because we find that the employees of these entities
are not subject to suit under § 1983, it follows that, in the
absence of any specific allegations of wrongdoing, no cause
of action would ensue against these entities.
*3 Aside from the litany of reasons stated above why this
§ 1983 action cannot proceed under 28 U.S.C. § 1915(e),
Plaintiff's Complaint suffers from a more dire quandary.
Many of Plaintiff's claims herein resonate as challenges to
his underlying conviction, namely, questioning the speediness
by which he was brought before a grand jury, whether he
was denied the right to confront his accusers in a grand jury,
whether his own attorney hampered his ability to face such
accusers, and whether the judge imposed excessive bail. To
some extent, were any of these matters decided in Plaintiff's
favor, it could call into question the validity of his underlying
conviction for which he is currently serving time in prison.
The Supreme Court has held that
in order to recover damages for
allegedly unconstitutional conviction
or imprisonment, or for other harm
caused by actions whose unlawfulness
would render a conviction or sentence
invalid, a § 1983 plaintiff must
prove that the conviction or sentence
has been reversed on direct appeal,
expunged by executive order, declared
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invalid by a state tribunal authorized
to make such determination, or called
into question by a federal court's
issuance of a writ of habeas corpus,
28 U.S.C. § 2254. A claim for
damages bearing that relationship to
a conviction or sentence that has not
been so invalidated is not cognizable
under § 1983.
Heck v. Humprhey, 512 U.S. 477, 486–87, 114 S.Ct. 2364,
129 L.Ed.2d 383 (1994) (emphasis added). In this regard, it
appears that § 1983 is not the proper vehicle for Plaintiff to
seek judicial review of the claims herein.
WHEREFORE, it is hereby
ORDERED, that Plaintiff's in Forma Pauperis Application
(Dkt. No. 2) is granted; and it is further
ORDERED, that the Clerk provide the Superintendent of the
facility, designated by Plaintiff as his current location, with a
copy of Plaintiff's Inmate Authorization Form (Dkt. No. 3),
and notify the official that this action has been filed and that
Plaintiff is required to pay the entire statutory filing fee of
$350 .00 pursuant to 28 U.S.C. § 1915; and it is further
ORDERED, that the Clerk provide a copy of Plaintiff's
Inmate Authorization Form to the Financial Deputy of the
Clerk's Office; and it is further
RECOMMENDED, that the entire Complaint be dismissed
pursuant to 28 U.S.C. § 1915A, 28 U.S.C. § 1915(e)(2)(B)(ii)
for failure to state a claim upon which relief can be granted
and for naming Defendants protected by absolute immunity,
or, in the alternative, pursuant to the dictates of Heck v.
Humphrey; and it is further
ORDERED, that the Clerk serve a copy of this Report
Recommendation and Order on Plaintiff by regular mail.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have ten
(10) 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 TEN (10) DAYS WILL PRECLUDE
APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89
(2d Cir.1993) (citing Small v. Sec'y of Health and Human
Servs. ., 892 F.2d 15 (2d Cir.1989)); see also 28 U.S.C. §
636(b) (1); FED. R. CIV. P. 72, 6(a), & 6(e).
*4 IT IS SO ORDERED.
HARRY L. FRANKLIN,
Plaintiff,
v.
WARREN COUNTY D.A.'S OFFICE; WARREN
COUNTY PUBLIC DEFENDERS; JUDGE JOHN
HALL, JR., County Court Judge; JOHN WAPPETT,
Public Defender; KATE HOGAN, Warren County District
Attorney,
Defendants.
MEMORANDUM–DECISION AND ORDER
GARY L. SHARPE, District Judge.
I. Background
Pro se inmate Harry L. Franklin (“Franklin”) brings
this action against defendants alleging violations of his
constitutional rights and seeking monetary damages under
42 U.S.C. § 1983. Specifically, Franklin asserts that Warren
County District Attorney Kate Hogan (“Hogan”) and Public
Defender John Wappett (“Wappett”) violated his due process
rights during his state criminal prosecution because he was
not provided a preliminary hearing or allowed to appear
before the grand jury. Franklin further alleges that his Eighth
Amendment right against excessive bail was violated by
Judge John Hall (“Judge Hall”).
On October 10, 2008, Magistrate Judge Randolph F. Treece
granted Franklin's in forma pauperis application, and sua
sponte addressed the sufficiency of his complaint pursuant
to 28 U.S.C. §§ 1915A and 1915(e)(2)(B). Judge Treece's
report-recommendation 1 (“R & R”) recommended that
Franklin's complaint be dismissed because: 1) it fails to state a
claim for which relief can be granted; 2) it names parties who
are absolutely immune from suit or did not act under color of
state law; and 3) the action is barred by Heck v. Humphrey.
(Dkt. No. 6.) Pending are Franklin's timely objections to the R
& R. (Dkt. No. 7.) For the reasons that follow, and those stated
in the R & R, Franklin's complaint is dismissed in its entirety.
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II. Discussion
Before entering final judgment, this court reviews all report-
recommendations in cases it has referred to a Magistrate
Judge. If a party has objected to specific elements of the
Magistrate Judge's findings and recommendations, the court
reviews those particular findings and recommendations de
novo. See Green v. Foley, No. 05–cv–0629, 2007 WL
3232268, at *1 (N.D.N.Y. Oct.31, 2007) (citation omitted).
Even in those cases where no party has filed an objection,
or only a vague, general, and/or partial objection has been
filed, the court reviews the unchallenged findings and
recommendations of a Magistrate Judge under a clearly
erroneous standard. See id.
Here, Franklin objects to Judge Treece's R & R on multiple
grounds. Franklin contends that Wappett, Hogan and Judge
Hall are all amenable to suit under § 1983 as state officials
being sued in their official capacity. He further asserts that
Heck does not bar his claims because he is not challenging
his conviction or sentence. Finally, Franklin contends that his
inability to appear before the grand jury or at a preliminary
hearing, and Judge Hall's imposition of an excessive bail
amount, violated his Fourteenth and Eighth Amendment
rights. The court reviews these objections de novo, and the
remainder of the report for clear error.
*5 Initially, the court notes that Franklin's Fourteenth
Amendment claims are not cognizable under § 1983, as
the factual basis for such claims—the lack of a preliminary
hearing or appearance before the grand jury—do not
implicate federal rights. See, e.g., Burwell v. Supt. of Fishkill
Corr. Fac., No. 06 Civ. 787, 2008 WL 2704319, at *8
(S.D.N.Y. July 10, 2008) (citing Branzburg v. Hayes, 408
U.S. 665, 688 n. 25, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972));
Bilbrew v. Garvin, No. 97–CV–1422, 2001 WL 91620, at *9
(E.D.N.Y. Jan. 10, 2001) (citing Gerstein v. Pugh, 420 U.S.
103, 118–19, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); Hurtado v.
California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884)).
Aside from this deficiency, Franklin's suit may not be
maintained against Judge Hall or Hogan because they are
entitled to absolute immunity in their personal capacities
and sovereign immunity in their official capacities as
state officials. See Young v. Selsky, 41 F.3d 47, 51 (2d
Cir.1994) (reciting that “[j]udges enjoy absolute immunity
from personal liability for acts committed within their judicial
jurisdiction”); Dory v. Ryan, 25 F.3d 81, 83 (2d Cir.1994)
(stating “that absolute immunity protects a prosecutor from §
1983 liability for virtually all acts, regardless of motivation,
associated with his function as an advocate”); see also Ying
Jing Gan v. City of New York, 996 F.2d 522, 529 (2d Cir.1993)
(state officials sued under § 1983 in their official capacity
are entitled to sovereign immunity); Baez v. Hennessy, 853
F.2d 73, 77 (2d Cir.1988) (holding that county D.A.'s are
state officials for purposes of their prosecutorial decisions,
not municipal officials); Myers v. Cholakis, No. 8:08–CV–
126, 2008 WL 5147042, at *1 (N.D.N.Y. Dec.5, 2008)
(granting state judge sued in her official capacity sovereign
immunity). Additionally, Wappett is not amenable to suit in
his personal capacity because public defenders representing
indigent clients are not acting under color of state law, as
required for liability to attach pursuant to § 1983. See Polk
County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d
509 (1981); Rodriguez v. Weprin, 116 F.3d 62, 65–66 (2d
Cir.1997).
Finally, to the extent Franklin brings suit against the Warren
County District Attorney's Office, the Warren County Public
Defender's Officer, and Wappett in their official capacities, his
suit is in reality one against Warren County as a municipality.
See Kentucky v. Graham, 473 U.S. 159, 165–66, 105 S.Ct.
3099, 87 L.Ed.2d 114 (1985). However, Franklin's only
potentially tenable claim here—that for excessive bail under
the Eighth Amendment—is clearly stated solely against Judge
Hall. As the court has indicated, supra, Judge Hall and Hogan
are considered state officials to the extent they are sued in
their official capacity under § 1983 for their judicial and
prosecutorial acts. Thus Warren County, as a municipality,
cannot be held liable for such acts. See Baez, 853 F.2d at
77 (finding that DA's prosecutorial actions were taken as
state officer such that County could not be held liable for
them). Further, municipal liability lies under § 1983 only
where constitutional injury is inflicted pursuant to a municipal
policy or custom. See Monell v. Dept. of Soc. Servs. of
the City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018,
56 L.Ed.2d 611 (1978). Accordingly, Franklin's claims of
municipal liability also fail in the present instance because
there is no indication that any of his federal rights were
violated pursuant to a Warren County policy or custom.
III. Conclusion
*6 For the reasons discussed above, Franklin cannot
maintain suit against any of the named defendants in their
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personal or official capacities, and his complaint must
therefore be dismissed. Accordingly, the court finds it
unnecessary to address Franklin's objections to Judge Treece's
finding that the present action is barred by Heck.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Judge Treece's Report and Recommendation
(Dkt. No. 6) is adopted to the extent it is consistent with this
opinion; and it is further
ORDERED that this action is DISMISSED pursuant to 28
U.S.C. §§ 1915A and 1915(e)(2)(B); and it is further
CERTIFIED pursuant to 28 U.S.C. § 1915(a)(3) that any
appeal from this matter would not be taken in good faith; and
it is further
ORDERED that the Clerk of the Court serve a copy of this
Order on the parties by regular mail.
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2009 WL 161314
Footnotes
1 The Clerk is directed to append Judge Treece's report-recommendation, and familiarity therewith is assumed.
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Griffin v. DeMartini, Slip Copy (2025)
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KeyCite Blue-Striped Flag
Appeal Filed by Griffin v. Demartini, 2nd Cir., August 20, 2025
2025 WL 1637902
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Jeremiah GRIFFIN, Plaintiff,
v.
Katherine DEMARTINI, Assistant District
Attorney (Prosecutor); Judge April Newbauer;
Judge Beth Beller; Judge Miriam Best, Defendants.
25-CV-674 (LTS)
|
Signed June 9, 2025
Attorneys and Law Firms
Jeremiah J. Griffin, East Elmhurst, NY, Pro Se.
ORDER OF DISMISSAL
LAURA TAYLOR SWAIN, Chief United States District
Judge:
*1 Plaintiff, who currently is incarcerated at the Robert N.
Davoren Center on Rikers Island, brings this action, pro se,
under 42 U.S.C. § 1983, naming three state court judges
and a New York County Assistant District Attorney. By
order dated February 10, 2025, the Court granted Plaintiff's
request to proceed in forma pauperis (“IFP”), that is, without
prepayment of fees. 1 For the following reasons, the Court
dismisses the complaint.
STANDARD OF REVIEW
The Court must dismiss a complaint, or portion thereof, that is
frivolous or malicious, fails to state a claim upon which relief
may be granted, or seeks monetary relief from a defendant
who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)
(B), 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639 (2d
Cir. 2007). The Court must also dismiss a complaint when
the Court lacks subject matter jurisdiction. See Fed. R. Civ. P.
12(h)(3). While the law mandates dismissal on any of these
grounds, the Court is obliged to construe pro se pleadings
liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009),
and interpret them to raise the “strongest [claims] that they
suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
474 (2d Cir. 2006) (internal quotation marks and citations
omitted) (emphasis in original).
BACKGROUND
Named as Defendants in this action are three judges sitting
in the New York State Supreme Court, New York County,
Criminal Term – April Newbauer, Miriam Best, and Beth
Beller; and New York County Assistant District Attorney
Katherine DeMartini. The following facts are drawn from the
complaint. 2
Plaintiff is in custody under a 2024 indictment. (ECF 1 at 5.)
Plaintiff alleges that he filed a meritorious motion to dismiss
the indictment on the ground that he was denied the right
to testify before the grand jury, in violation of N.Y. Crim.
Proc. L. § 190.50, but Judge Newbauer improperly refused to
consider the motion. (Id. at 4.) According to Plaintiff, other
judges and prosecutors were “well aware” that there was “no
signature” on the “grand jury waiver” form, which rendered
it invalid. (Id.)
Plaintiff also asserts that he filed a meritorious motion to
dismiss the indictment on the ground that his right to a
speedy trial under N.Y. Crim. Proc. L. § 30.30 had been
violated, but Judge Best improperly denied the motion. (Id.
at 6.) Finally, during a hearing, Judge Beller stated that
the prosecutor's request for an adjournment of time was
“excludable,” and therefore “would not be grounds for” relief
under Section 30.30. (Id. at 28.) Judge Beller also denied
Plaintiff's application for bail. (Id. at 31.) Plaintiff claims that
the facts he alleges “establish [the] bad faith exception” under
Younger v. Harris. (Id. at 5.)
Attachments to the complaint include documents and
transcripts from the state court proceedings, documents from
events occurring at Rikers Island, and letters to Plaintiff from
a what appears to be a debt collector stating that Plaintiff had
paid his debt. (Id. at 16-57.)
*2 After he filed the complaint, Plaintiff also filed a fact
statement and letter seeking “expedited service” and to be
released from custody. (ECF 6-7.)
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DISCUSSION
A. Judicial immunity
Plaintiff alleges that Judges Newbauer, Beller, and Best
violated his federally protected rights. To state a claim under
42 U.S.C. § 1983. To state a claim under Section 1983, a
plaintiff must allege both that: (1) a right secured by the
Constitution or laws of the United States was violated, and
(2) the right was violated by a person acting under the color
of state law, or a “state actor.” West v. Atkins, 487 U.S. 42,
48-49 (1988).
Judges are absolutely immune from suit for damages
for any actions taken within the scope of their judicial
responsibilities. Mireles v. Waco, 502 U.S. 9, 11 (1991).
Generally, “acts arising out of, or related to, individual cases
before the judge are considered judicial in nature.” Bliven v.
Hunt, 579 F.3d 204, 210 (2d Cir. 2009). “Even allegations
of bad faith or malice cannot overcome judicial immunity.”
Id. (citations omitted). This is because, “[w]ithout insulation
from liability, judges would be subject to harassment and
intimidation ....” Young v. Selsky, 41 F.3d 47, 51 (2d Cir.
1994).
Plaintiff seeks damages from Judges Newbauer, Beller, and
Best arising from their judicial role in Plaintiff's criminal court
matter. These claims concern “acts arising out of, or related
to, individual cases before” them, and they are immune from
suit for such claims. Bliven, 579 F.3d at 210.
Although “judicial immunity does not bar a claim for
prospective injunctive and declaratory relief,” Shtrauch v.
Dowd, 651 F. App'x 72, 73 (2d Cir. 2016), a court's ability to
award injunctive relief against a judicial officer under Section
1983 is strictly limited. As amended in 1996, Section 1983
provides that “in any action brought against a judicial officer
for an act or omission taken in such officer's judicial capacity,
injunctive relief shall not be granted unless a declaratory
decree was violated or declaratory relief was unavailable.” 42
U.S.C. § 1983.
Plaintiff is not entitled to injunctive relief in this action
against Judges Newbauer, Beller and Best because Plaintiff
has “allege[d] neither the violation of a declaratory decree,
nor the unavailability of declaratory relief,” despite to the
availability of mechanisms for such relief. Montero v. Travis,
171 F.3d 757, 761 (2d Cir. 1999). “[D]eclaratory relief
against a judge for actions taken within his or her judicial
capacity is ordinarily available by appealing the judge's
order.” Davis v. Campbell, No. 3:13-CV-0693, 2014 WL
234722, at *9 (N.D.N.Y. Jan. 22, 2014); see Brik v. Brodie,
No. 23-CV-4330, 2023 WL 4373557, at *1 (E.D.N.Y. July
6, 2023) (dismissing plaintiff's claims for injunctive relief
against judge, inter alia, because plaintiff “does not seek
to remedy a harm that is truly prospective, [and plaintiff]
does show any entitlement to declaratory relief” based on the
judge's past conduct).
The Court therefore dismisses Plaintiff's claims against
Judges Newbauer, Beller, and Best based on absolute judicial
immunity and, therefore, as frivolous, and for failure to state
a claim on which relief may be granted. See 28 U.S.C. §
1915(e)(2)(B)(i)-(iii); Mills v. Fischer, 645 F.3d 176, 177 (2d
Cir. 2011) (“Any claim dismissed on the ground of absolute
judicial immunity is ‘frivolous’ for purposes of [the in forma
pauperis statute].”).
B. Prosecutorial immunity
*3 Prosecutors are immune from civil suits for damages
for acts committed within the scope of their official duties
where the challenged activities are not investigative in
nature but, rather, are “intimately associated with the judicial
phase of the criminal process.” Giraldo v. Kessler, 694 F.3d
161, 165 (2d Cir. 2012) (quoting Imbler v. Pachtman, 424
U.S. 409, 430 (1976)); see also Buckley v. Fitzsimmons,
509 U.S. 259, 269 (1993) (absolute immunity is analyzed
under a “functional approach” that “looks to the nature
of the function performed, not the identity of the actor
who performed it” (internal quotation marks and citations
omitted)). In addition, prosecutors are absolutely immune
from suit for acts that may be administrative obligations
but are “directly connected with the conduct of a trial.”
Van de Kamp v. Goldstein, 555 U.S. 335, 344 (2009); see
also Ogunkoya v. Monaghan, 913 F.3d 64, 70-72 (2d Cir.
2019) (holding that Assistant District Attorneys’ direction
as to where criminal defendant would be arraigned was in
preparation for a court proceeding in which the prosecutors
were acting as advocates, and prosecutors were therefore
shielded by absolute immunity (citing, inter alia, Van de
Kamp)).
Here, Plaintiff's claims against Defendant DeMartini are
based on actions within the scope of her official duties and
associated with the conduct of a trial. Therefore, these claims
are dismissed because they seek monetary relief against a
defendant who is immune from such relief, 28 U.S.C. §
1915(e)(2)(b)(iii), and, consequently, as frivolous, 28 U.S.C.
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§ 1915(e)(2)(B)(i). See Collazo v. Pagano, 656 F.3d 131,
134 (2d Cir. 2011) (holding that claim against prosecutor
is frivolous if it arises from conduct that is “intimately
associated with the judicial phase of the criminal process”).
C. Claims arising from criminal proceedings
1. Intervention in ongoing criminal proceedings
The Court must dismiss Plaintiff's request that this Court
intervene in his pending state-court criminal proceedings. In
Younger v. Harris, 401 U.S. 37 (1971), the United States
Supreme Court held that a federal court may not enjoin a
pending state-court criminal proceeding in the absence of
special circumstances suggesting bad faith, harassment, or
irreparable injury that is both serious and immediate. See
Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. 69, 72 (2013)
(“Younger exemplifies one class of cases in which federal-
court abstention is required: When there is a parallel, pending
state criminal proceeding, federal courts must refrain from
enjoining the state prosecution.”); Gristina v. Merchan, 131
F.4th 82, 86-88 (2d Cir. 2025) (discussing Younger).
“[B]ad faith or harassment” exists when the party bringing
the state court action has “ ‘no reasonable expectation
of obtaining a favorable outcome.’ ” Homere v. Incorp.
Vill. of Hempstead, 322 F. Supp. 3d 353, 368 (E.D.N.Y.
2018) (quoting Cullen v. Fliegner, 18 F.3d 96, 103 (2d
Cir. 1994)); see also Kugler v. Helfant, 421 U.S. 117,
126 n.6 (1975) (noting that bad faith under Younger
“generally means a prosecution has been brought without
a reasonable expectation of obtaining a valid conviction”);
Dougal v. Lewicki, No. 23-CV-1167, 2023 WL 6430586, at
*9 (N.D.N.Y. Oct. 2, 2023) (holding that the plaintiff's claim
that “his neighbors’ complaints which led to the charges were
false” was “insufficient” to show bad faith or harassment,
and did not “overcome the presumption that federal courts
should not interfere in ongoing state criminal matters”) (citing
Anilao v. Spota, 27 F.4th 855, 866 (2d Cir. 2022)), report
and recommendation adopted, 2023 WL 7013384 (N.D.N.Y.
Oct. 25, 2023); DeMartino v. New York State Dep't of Lab.,
167 F. Supp. 3d 342, 355-56 (E.D.N.Y. 2016) (holding that
the plaintiff's allegations that the criminal charges pending
against him were based “on the false statements” of the
defendant did not “serve as the factual predicate for a
plausible finding of bad faith”).
*4 Here, Plaintiff has alleged no facts showing bad faith,
harassment, or irreparable injury with respect to his pending
state-court criminal proceeding. The Court therefore will
not intervene in that proceeding and denies his claims for
declaratory and injunctive relief.
2. Habeas corpus relief
For relief, Plaintiff seeks release from custody. But Plaintiff
may not obtain release from custody in a Section 1983 action;
instead, he can only obtain such relief by bringing a petition
for a writ of habeas corpus. See Wilkinson v. Dotson, 544
U.S. 74, 78-82 (2005) (citing Preiser v. Rodriguez, 411 U.S.
475 (1973)) (noting that writ of habeas corpus is sole remedy
for prisoner seeking to challenge the fact or duration of his
confinement).
Some district courts have held that a state pretrial detainee
may challenge the constitutionality of his detention in a
petition for a writ of habeas corpus under 28 U.S.C. § 2241. 3
See, e.g., Robinson v. Sposato, No. 11-CV-0191, 2012 WL
1965631, at *2 (E.D.N.Y. May 29, 2012) (collecting cases).
But before seeking habeas corpus relief under Section 2241,
a state pretrial detainee must first exhaust available state-
court remedies. See United States ex rel. Scranton v. New
York, 532 F.2d 292, 294 (2d Cir. 1976) (“While [§ 2241]
does not by its own terms require the exhaustion of state
remedies as a prerequisite to the grant of federal habeas
relief, decisional law has superimposed such a requirement
in order to accommodate principles of federalism.”). In the
pretrial context, such exhaustion includes seeking habeas
corpus relief in the state courts and, if necessary, appealing
all the way up to the New York Court of Appeals, the State of
New York's highest court. See N.Y.C.P.L.R. § 7001, et seq.
Because the complaint does not suggest that Plaintiff
exhausted his challenge related to the speedy trial motion
in the state courts, the Court declines to recharacterize this
Section 1983 complaint as a petition brought under 28 U.S.C.
§ 2241. 4 Any habeas corpus claims Plaintiff is asserting
are dismissed without prejudice to refiling after Plaintiff has
exhausted his state court remedies.
LEAVE TO AMEND AND LITIGATION HISTORY
Plaintiff has previously filed complaints against judges and
prosecutors challenging his criminal proceedings and seeking
release. See Griffin v. Corp. Counsel, No. 22-CV-8521 (AS)
(S.D.N.Y. Nov. 14, 2022) (dismissing claims against Judge
Newbauer on immunity grounds; pending are conditions-
of-confinement claims); Griffin v. Warden, No. 22-CV-6302
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(S.D.N.Y. Dec. 7, 2022) (denying without prejudice Section
2241 petition on Younger grounds and for failure to exhaust
state court remedies); Griffin v. Warden, No. 20-CV-1707
(AJN) (SLC) (S.D.N.Y. Mar. 10, 2020) (denying without
prejudice Section 2241 petition for failure to exhaust).
*5 District courts generally grant a pro se plaintiff an
opportunity to amend a complaint to cure its defects but
leave to amend is not required where it would be futile.
See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011);
Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Because
the defects in Plaintiff's complaint cannot be cured with an
amendment, the Court declines to grant Plaintiff leave to
amend his complaint. See Dwyer v. United Kingdom Gen.
Commc'ns Headquarters, No. 22-3012, 2024 WL 259693, at
*1 n.1 (2d Cir. Jan. 24, 2024) (“While our cases generally
discourage ... dismissing an action sua sponte without notice
and opportunity to respond, Catzin v. Thank You & Good Luck
Corp., 899 F.3d 77, 82 (2d Cir. 2018), we have recognized
exceptions for ‘unmistakably’ defective pleadings, id., and
serial litigation that ‘reassert[s]’ claims previously dismissed,
Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362,
363 (2d Cir. 2000).”).
CONCLUSION
Plaintiff's complaint, filed IFP under 28 U.S.C. § 1915(a)(1),
is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). To
the extent Plaintiff seeks habeas corpus relief, the dismissal is
without prejudice to Plaintiff filing a petition under 28 U.S.C.
§ 2241 after he has exhausted his state court remedies.
Because Plaintiff has not, at this time, made a substantial
showing of the denial of a constitutional right, a certificate of
appealability will not issue. See 28 U.S.C. § 2253.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any
appeal from this order would not be taken in good faith, and
therefore IFP status is denied for the purpose of an appeal. See
Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
All Citations
Slip Copy, 2025 WL 1637902
Footnotes
1 Prisoners are not exempt from paying the full filing fee even when they have been granted permission to
proceed IFP. See 28 U.S.C. § 1915(b)(1).
2 The Court quotes from the complaint verbatim. All spelling, grammar, and punctuation are as in the original
unless noted otherwise.
3 Where a pretrial detainee challenges his custody in a habeas corpus petition under Section 2241, courts have
applied the Younger doctrine and declined to intervene in the state court proceeding. See, e.g., Jordan v.
Bailey, 570 F. App'x 42, 44 (2d Cir. 2014) (applying Younger, but noting that “the length of pretrial incarceration
[52 months] is highly troubling and, on its face, raises substantial questions”).
4 When a district court construes a complaint brought under Section 1983 as a Section 2241 petition, it must
notify the pro se plaintiff that it intends to recharacterize the pleading and provide the litigant an opportunity
to decline the conversion or withdraw the petition. Simon v. United States, 359 F.3d 139, 144 (2d Cir. 2004).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Haskell v. Cuomo, Not Reported in Fed. Supp. (2021)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2021 WL 861802
Only the Westlaw citation is currently available.
For Online Publication Only
United States District Court, E.D. New York.
Alti HASKELL, #19004128, Plaintiff,
v.
Gov. Andrew CUOMO, David Hoovler,
District Attorney's Association, District
Attorney Madeline Singas, A.D.A. Gregory
Murphy, Judge William O'Brien, Defendants.
20-CV-3965 (JMA)(SIL)
|
Signed 03/08/2021
Attorneys and Law Firms
Alti Haskell, East Meadow, NY, pro se.
ORDER
AZRACK, United States District Judge:
*1 Before the Court is the application to proceed in forma
pauperis filed by incarcerated pro se plaintiff Alti Haskell
(“Plaintiff”) together with a civil rights complaint brought
pursuant to 42 U.S.C. § 1983 (“Section 1983”) against
Governor Andrew Cuomo (“Gov. Cuomo”), David Hoovler
(“Hoovler”), Nassau County District Attorney Madeline
Singas (“DA Singas”), assistant district attorney Gregory
Murphy (“ADA Murphy”), and Judge William O'Brien
(“Judge O'Brien” and collectively, “Defendants”). The Court
grants Plaintiff's request to proceed in forma pauperis and
abstains from interfering in Plaintiff's on-going state court
criminal proceedings. Additionally, the Court sua sponte
dismisses the complaint pursuant to 28 U.S.C. §§ 1915 (e)(2)
(B), 1915A(b) for the reasons that follow.
I. BACKGROUND 1
Plaintiff's brief, handwritten complaint is submitted on the
Court's Section 1983 complaint form and seeks to have
this Court intervene in an on-going state court criminal
prosecution. Indeed, among other things, Plaintiff seeks the
dismissal of the indictment against him. 2 (Compl. ¶ III.)
Plaintiff is awaiting trial and complains that he is asthmatic
and at risk of contracting the COVID-19 virus while housed
at the Nassau County Correctional Center. (Id. at 6.) Plaintiff
alleges that his application for a compassionate release was
opposed by ADA Murphy and denied by Judge O'Brien. (Id.
at 6-7.)
Plaintiff also complains that he “wanted to be present at
the grand jury to exercise his right to testify, but his
rights were not honored.” (Id. at 9.) On August 22, 2019,
Plaintiff was arraigned on additional charges, including
criminal possession of a firearm, criminal possession of a
controlled substance in the second degree, criminal sale of
a controlled substance in the fifth degree, private sale or
disposal of firearms, rifles, and shot guns, conspiracy in the
second degree, and conspiracy in the fifth degree. (Id. at
10.) According to Plaintiff, his assigned counsel “waived
plaintiff's rights to testify ... [at] the grand jury proceedings
without consultation or consent by signing a waiver for re-
indictment proceedings.” 3 (Id.) Plaintiff also alleges that
although ADA Murphy stated the People's readiness for trial
on August 22, 2019, he alleges that subsequently (October 18,
2019, December 19, 2019, January 13, 2020, and February
28, 2020) ADA Murphy stated the People were not ready for
trial. (Id. at 11.)
*2 In addition, Plaintiff alleges that Gov. Cuomo's March
13, 2020 declaration of a state of emergency due to the
COVID-19 pandemic deprived Plaintiff of his speedy trial
rights as guaranteed by the Sixth Amendment. (Id. at 11-12.)
As a result, Plaintiff seeks an order from this Court dismissing
the underlying criminal case against plaintiff. (Id. ¶ III,
and at 14.) Apart from the caption, neither DA Singas nor
Hoovler 4 are mentioned in the body of the complaint. See
Compl. generally. Further, in addition to the dismissal of the
indictment, Plaintiff seeks to recover a monetary award in the
sum of $7.5 million, even though Plaintiff has left blank the
space on the form complaint that calls for a description of any
claimed injuries. (Id. ¶¶ II.A., III.)
II. DISCUSSION
A. In Forma Pauperis Application
Upon review of Plaintiff's declaration in support of the
application to proceed in forma pauperis, the Court finds
that Plaintiff is qualified to commence this action without
prepayment of the filing fee. 28 U.S.C. § 1915(a)(1).
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Haskell v. Cuomo, Not Reported in Fed. Supp. (2021)
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Therefore, Plaintiff's application to proceed in forma pauperis
is granted.
B. Standard of Review
The Prison Litigation Reform Act requires a district court
to screen a civil complaint brought by a prisoner against a
governmental entity or its agents and dismiss the complaint,
or any portion of the complaint, if the complaint is “frivolous,
malicious, or fails to state a claim upon which relief may be
granted.” 28 U.S.C. § 1915A(b)(1). Similarly, pursuant to the
in forma pauperis statute, a court must dismiss an action if
it determines that it “(i) is frivolous or malicious, (ii) fails to
state a claim upon which relief may be granted, or (iii) seeks
monetary relief from a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B). The Court must dismiss
the action as soon as it makes such a determination. 28 U.S.C.
§ 1915A(b).
Pro se submissions are afforded wide interpretational latitude
and should be held “to less stringent standards than formal
pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S.
519, 520 (1972) (per curiam); see also Boddie v. Schnieder,
105 F.3d 857, 860 (2d Cir. 1997). In addition, the Court
is required to read Plaintiff's pro se complaint liberally and
interpret it to raise the strongest arguments it suggests. United
States v. Akinrosotu, 637 F.3d 165, 167 (2d Cir. 2011) (per
curiam) (citation omitted); Harris v. Mills, 572 F.3d 66, 72
(2d Cir. 2009).
The Supreme Court has held that pro se complaints need not
even plead specific facts; rather the complainant “need only
give the defendant fair notice of what the ... claim is and the
grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89,
93 (2007) (internal quotation marks and citations omitted);
cf. Fed. R. Civ. P. 8(e) (“Pleadings must be construed so
as to do justice.”). However, a pro se plaintiff must still
plead “enough facts to state a claim to relief that is plausible
on its face.” Bell Atlantic 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) (citations omitted). The plausibility standard requires
“more than a sheer possibility that a defendant has acted
unlawfully.” Id. at 678. While “ ‘detailed factual allegations’
” are not required, “[a] pleading that offers ‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a
cause of action will not do.’ ” Id. at 678 (quoting Twombly,
550 U.S. at 555).
C. Section 1983
*3 Section 1983 provides:
[e]very person who, under color of any
statute, ordinance, regulation, custom,
or usage, of any State ... subjects, or
causes to be subjected, any citizen of
the United States ... to the deprivation
of any rights, privileges, or immunities
secured by the Constitution and laws,
shall be liable to the party injured ....
42 U.S.C. § 1983. 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.” Baker v.
McCollan, 443 U.S. 137, 144 n.3 (1979); Thomas v. Roach,
165 F.3d 137, 142 (2d Cir. 1999). In order to state a Section
1983 claim, a plaintiff must allege two essential elements.
First, the conduct challenged must have been “committed by
a person acting under color of state law.” Cornejo v. Bell, 592
F.3d 121, 127 (2d Cir. 2010) (quoting Pitchell v. Callan, 13
F.3d 545, 547 (2d Cir. 1994)); see also Am. Mfrs. Mut. Ins.
Co. v. Sullivan, 526 U.S. 40, 50 (1999) (“[T]he under-color-
of-state-law element of § 1983 excludes from its reach merely
private conduct, no matter how discriminatory or wrongful.”)
(internal quotation marks and citation omitted). Second, “the
conduct complained of must have deprived a person of rights,
privileges or immunities secured by the Constitution or laws
of the United States.” Id.; see also Snider v. Dylag, 188 F.3d
51, 53 (2d Cir. 1999).
i. Intervention in Pending State Criminal Proceedings
According to the information maintained by the New York
State Unified Court System on its public database, the
criminal charges against Plaintiff are currently pending.
See https://iapps.courts.state.ny.us/webcrim (last visited on
March 8, 2021). Under Younger v. Harris, 401 U.S. 37 (1971),
and its progeny, the Court must dismiss any claims that
Plaintiff asserts in which he asks the Court to intervene in
his pending state criminal proceedings. It is long established
that “a federal court may not enjoin a pending state-court
criminal proceeding in the absence of special circumstances
suggesting bad faith, harassment, or irreparable injury that
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is both serious and immediate.” Lee v. Does 1 & 2, No. 20-
CV-9290, 2020 WL 7264293, at *2-3 (S.D.N.Y. Dec. 9, 2020)
(citing Gibson v. Berryhill, 411 U.S. 564, 573-74 (1973)
(additional citation omitted)); see also Sprint Commc'ns, Inc.
v. Jacobs, 134 S. Ct. 584, 588 (2013) (“Younger exemplifies
one class of cases in which federal-court abstention is
required: When there is a parallel, pending state criminal
proceeding, federal courts must refrain from enjoining the
state prosecution.”).
Here, wholly absent from the complaint are any allegations
of bad faith, harassment, or irreparable injury with respect
to Plaintiff's on-going state-court criminal prosecution. See
Compl., generally. Therefore, insofar as Plaintiff seeks to
have this Court dismiss the indictments against him, this
Court cannot intervene in his state criminal proceedings.
Given this Court's abstention, such claims are thus dismissed.
However, the Court cannot dismiss Plaintiff's damages claims
under the Younger abstention doctrine. See, e.g., Kirschner
v. Klemons, 225 F.3d 227, 238 (2d Cir. 2000) (“[A]bstention
and dismissal are inappropriate when damages are sought ...
even when a pending state [criminal] proceeding raises
identical issues and [the federal district court] would dismiss
otherwise identical claims for declaratory and injunctive
relief.”). However, such claims are not plausible for the
reasons that follow.
ii. There is No Federal Right to Testify or be Present at
the Grand Jury
*4 It is well-established that “there is no federal
constitutional right to testify before a grand jury, nor, for
that matter, is there even a federal right to a grand jury
in state criminal proceedings.” See Franklin v. Warren Cty.
D.A's Office, No. 08-CV-801, 2009 WL 161314, at *2
(N.D.N.Y. Jan. 21, 2009) (report and recommendation and
order adopting report and recommendation) (“the lack of a
preliminary hearing or appearance before the grand jury—
do not implicate federal rights”) (citing Burwell v. Supt. of
Fishkill Corr. Fac., No. 06-CV-787, 2008 WL 2704319, at
*8 (S.D.N.Y. July 10, 2008)) (citing, inter alia, Branzburg
v. Hayes, 408 U.S. 665, 688 n.25 (1972)). Thus, insofar as
Plaintiff seeks to bring a Section 1983 claim arising from the
grand jury proceedings, such claims are implausible and are
thus dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii),
1915A(b).
iii. Speedy Trial
Plaintiff alleges that he was deprived of his right to a speedy
trial as guaranteed by the Sixth Amendment and N.Y. C.P.L.
§ 30.30. However, “in order to adequately plead claims under
Section 1983 that he was tried and convicted in violation of
his Sixth Amendment right to a speedy trial, Plaintiff must
allege that the state court criminal proceedings terminated in
his favor.” Bussey v. Devane, No. 13-CV-3660, 2013 WL
4459059, at *5 (E.D.N.Y. Aug. 16, 2013) (citing Montane v.
Pettie, No. 10-CV-4404, 2012 WL 1617713, at *2 (E.D.N.Y.
May 8, 2012)). Given that Plaintiff's state court criminal
prosecution is on-going, he cannot allege that it terminated in
his favor.
To the extent Plaintiff attempts to premise a federal speedy
trial claim on CPL 30.30, any such claim is not plausible
because, inter alia, “although CPL § 30.30 is entitled a
‘speedy trial’ statute, the history of its adoption makes evident
that it addresses only the problem of prosecutorial readiness,
and is not a speedy trial statute in the constitutional sense.” 5
Randolph v. Cuomo, No. 20-CV-4719, 2020 WL 6393015,
at *4 (E.D.N.Y. Nov. 2, 2020) (citing People v. Haneiph, 745
N.Y.S.2d 405, 408 (Sup. Ct. Kings Cty. 2002)).
Accordingly, Plaintiff's speedy trial claim under § 1983, as
pled, is not plausible and is dismissed without prejudice
pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b).
iv. Personal Involvement
Although Plaintiff names DA Singas and Hoovler in the
caption and the “Parties” section of the complaint, neither
individual is again mentioned in the body of the complaint.
See Compl., generally. In order to state a plausible claim for
relief under Section 1983, a plaintiff must allege the personal
involvement of the defendant in the alleged constitutional
deprivation. Farid v. Ellen, 593 F.3d 233, 249 (2d Cir.
2010); McCoy v. Goord, 255 F. Supp. 2d 233, 245 (S.D.N.Y.
2003) (explaining that to state a Section 1983 claim for
damages against an individual defendant, a plaintiff must
allege specific facts to show that each defendant was directly
or personally involved in the alleged violation, “that is,
that there was ‘personal participation by one who ha[d]
knowledge of the facts that rendered the conduct illegal.’ ”)
(quoting Provost v. City of Newburgh, 262 F.3d 146, 155 (2d
Cir. 2001)). Where a Section 1983 claim fails to allege the
personal involvement of the defendant, it fails as a matter of
law. See Johnson v. Barney, 360 F. App'x 199, 201 (2d Cir.
2010).
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Here, as is readily apparent, Plaintiff has not alleged that DA
Singas and/or Hoovler were personally involved in any of
the challenged conduct. Even affording the pro se complaint
a liberal construction, to the extent that Plaintiff seeks to
impose liability on DA Singas given the position she holds,
he has not alleged a plausible supervisory liability claim.
Indeed, an individual “cannot be held liable for damages
under Section 1983 merely because he held a high position
of authority.” Back v. Hastings on Hudson Union Free Sch.
Dist., 365 F.3d 107, 127 (2d Cir. 2004); Randolph, 2020 WL
63930145, at *3 (“Liability under Section 1983 cannot be
generally imposed on a supervisor solely based on his or
her position.”). Moreover, even if DA Singas was personally
involved in the decisions to prosecute Plaintiff and to oppose
his compassionate release motion (and there is no indication
in the complaint that she was), DA Singas would be entitled to
absolute immunity as set forth below. Accordingly, Plaintiff's
Section 1983 claims against DA Singas and Hoovler are not
plausible and are thus dismissed pursuant to 28 U.S.C. §§
1915(e)(2)(B), 1915A(b).
v. Immunity
*5 Plaintiff's Section 1983 claims seeking damages are
implausible because immunity bars these claims. “[J]udges
generally have absolute immunity from suits for money
damages for their judicial actions” and “even allegations of
bad faith or malice cannot overcome judicial immunity.”
Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir. 2009). Absolute
immunity protects a judge from damages suits “unless [s]he
‘acted in the clear absence of all jurisdiction.’ ” McKeown
v. N.Y. State Comm'n on Judicial Conduct, 377 F. App'x
121, 123-24 (2d Cir. 2010) (summary order) (quoting Tucker
v. Outwater, 118 F.3d 930, 933 (2d Cir. 1997)). Similarly,
prosecutors are also eligible for such immunity. See Berlin
v. Meijias, 15-CV-5308, 2017 WL 4402457, at *3 (E.D.N.Y.
Sept. 30, 2017) (citing McKeown, 377 F. App'x at 124
(“Prosecutors, ... are eligible for absolute immunity....”)). The
Second Circuit has long held that “prosecutors sued under
42 U.S.C. § 1983 are entitled to absolute immunity from
claims for damages arising out of prosecutorial duties that are
intimately associated with the judicial phase of the criminal
process.” Parkinson v. Cozzolino, 238 F.3d 145, 150 (2d
Cir. 2001) (internal citation and quotation marks omitted).
Prosecutors are entitled to absolute immunity with respect to
their “prosecutorial functions,” which include their actions
“as advocates and when their conduct involves the exercise
of discretion.” Flagler v. Trainor, 663 F.3d 543, 547 (2d Cir.
2011).
In addition, the Eleventh Amendment divests this Court
of subject matter jurisdiction over any claim for monetary
damages against a state actor acting in his or her official
capacity. See Kentucky v. Graham, 473 U.S. 159, 169 (1985)
(“The Court has held that, absent waiver by the State or
valid congressional override, the Eleventh Amendment bars a
damages action against a State in federal court.”). “It is well-
established that New York State has not consented to Section
1983 suits in federal court ... and that Section 1983 was not
intended to override a state's sovereign immunity.” Mamot
v. Board of Regents, 367 F. App'x 191, 192 (2d Cir. 2010)
(internal citation omitted).
Here, Judge O'Brien is alleged to have presided over pre-
trial proceedings in Plaintiff's underlying state court criminal
case and Plaintiff challenges his ruling relating to his motion
for compassionate release filed during such proceedings.
Likewise, ADA Murphy is the assistant district attorney
who, on behalf of the People of the State of New York,
opposed Plaintiff's motion during those proceedings. Because
the conduct by Judge O'Brien and ADA Murphy as alleged by
Plaintiff was clearly within the scope of their respective duties
during the underlying state criminal prosecutions, together
with the absence of any allegations that they acted “in clear
absence of all jurisdiction”, they are shielded by prosecutorial
immunity. Corley v. Wittner, 811 F. App'x 62, 63 (2d Cir.
2020) (summary order) (“The district court correctly held that
the state court judge and prosecutors were absolutely immune
from suit as to [plaintiff's] speedy trial ... claims.”) (citations
omitted).
Similarly, to the extent that Judge O'Brien, ADA Murphy,
DA Singas, and Gov. Cuomo are being sued in their official
capacities, they are protected by sovereign immunity as
guaranteed by the Eleventh Amendment. See Pennhurst State
School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Will
v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989)
(“[A] suit against a state official in his or her official capacity
is not a suit against the official but rather is a suit against
the official's office. As such, it is no different from a suit
against the State itself.”) (citations omitted); see also Amaker
v. N.Y. State Dep't of Corr. Servs., 435 F. App'x 52, 54 (2d Cir.
2011) (holding that a district attorney and an assistant district
attorney “benefitted from New York's Eleventh Amendment
immunity against suit” because they were sued in their official
capacities) (citing Ying Jing Gan v. City of New York, 996
F.2d 522, 529 (2d Cir. 1993)) (holding that district attorney
represents the state, not the county, and so is entitled to
Eleventh Amendment immunity); Morisset v. Cty. of Nassau,
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No. 16-CV-3908, 2017 WL 5312135, at *3 (E.D.N.Y. Nov.
13, 2017) (“Plaintiff's claims against DA Singas must also
be dismissed because state officials acting in their official
capacities are protected by sovereign immunity as guaranteed
by the Eleventh Amendment.”).
*6 Here, insofar as Plaintiff seeks monetary damages from
Judge O'Brien, ADA Murphy, DA Singas, and Gov. Cuomo,
the Eleventh Amendment precludes Plaintiff's Section 1983
claims. Accordingly, Plaintiff's Section 1983 claims against
Judge O'Brien, ADA Murphy, DA Singas, and Gov. Cuomo
are implausible and are dismissed without prejudice pursuant
to 28 U.S.C. §§ 1915(e)(2)(B)(ii)-(iii), 1915A(b).
vi. State Law Claims
Under 28 U.S.C. § 1367(a), “the district courts shall have
supplemental jurisdiction over all other 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.” However,
courts “may decline to exercise supplemental jurisdiction
over a claim” if “the district court has dismissed all claims
over which it has original jurisdiction.” Id. § 1367(c); (c)
(3); see Shahriar v. Smith & Wollensky Rest. Grp., Inc.,
659 F.3d 234, 245 (2d. Cir. 2011). The Supreme Court
explained: “[I]n the usual case in which all federal-law claims
are eliminated before trial, the balance of factors to be
considered under the pendent jurisdiction doctrine—judicial
economy, convenience, fairness, and comity—will point
toward declining to exercise jurisdiction over the remaining
state-law claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S.
343, 350 n.7 (1988).
Here, given the absence of a viably pled federal law claim,
the interests of judicial economy, convenience, fairness,
and comity weigh in favor of not exercising supplemental
jurisdiction at this time over any state law claims, including
Plaintiff's purported speedy trial claim under CPL 30.30,
that may be reasonably construed from the complaint.
Accordingly, the Court declines to exercise supplemental
jurisdiction over any potential state-law claims contained in
Plaintiff's complaint and dismisses any such claims without
prejudice.
III. LEAVE TO AMEND
A pro se plaintiff should ordinarily be given the opportunity
“to amend at least once when a liberal reading of the
complaint gives any indication that a valid claim might be
stated.” Shomo v. City of New York, 579 F.3d 176 (2d
Cir. 2009) (quoting Gomez v. USAA Fed. Sav. Bank, 171
F.3d 794, 795-96 (2d Cir. 1999) (internal quotation marks
omitted)). Indeed, a pro se plaintiff who brings a civil rights
action, “should be ‘fairly freely’ afforded an opportunity to
amend his complaint.” Boddie v. New York State Div. of
Parole, No. 08-CV-911, 2009 WL 1033786, at *5 (E.D.N.Y.
Apr. 17, 2009) (quoting Frazier v. Coughlin, 850 F.2d 129,
130 (2d Cir. 1988)) (internal quotation marks omitted).
However, while “pro se plaintiffs are generally given leave to
amend a deficient complaint, a district court may deny leave
to amend when amendment would be futile.” Id. (citations
omitted).
Here, the Court has carefully considered whether Plaintiff
should be granted leave to amend his complaint. Because the
defects in Plaintiff's claims are substantive and could not be
cured in an amended pleading, leave to amend the complaint
is denied.
IV. CONCLUSION
For the forgoing reasons, Plaintiff's application to proceed in
forma pauperis is granted, but Plaintiff's Section 1983 claims
are sua sponte dismissed for failure to allege a plausible claim
for relief pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b).
The Court declines to exercise supplemental jurisdiction over
Plaintiff's state law claims and dismisses any such claims
without prejudice to Plaintiff pursuing such claims in state
court.
*7 The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal from this Order would not be taken in good
faith and therefore in forma pauperis status is denied for the
purpose of any appeal. See Coppedge v. United States, 369
U.S. 438, 444-45 (1962).
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2021 WL 861802
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Footnotes
1 All material allegations in the complaint are assumed to be true for the purpose of this Order, see, e.g., Rogers
v. City of Troy, New York, 148 F.3d 52, 58 (2d Cir. 1998) (in reviewing a pro se complaint for sua sponte
dismissal, a court is required to accept the material allegations in the complaint as true).
2 Plaintiff alleges that he was arraigned on July 18, 2020 and charged with criminal possession of a weapon
in the second degree. (Compl. at 9.)
3 Plaintiff also alleges that he “filed a CPL 190.50 motion because he was denied the right to testify and have
his witnesses testify at grand jury on his behalf.” (Compl. at 10.)
4 Plaintiff names Hoovler and identifies him as employed by the District Attorney Association. See Compl. ¶ I,
at 2. According to the complaint, the District Attorney Association “proposed to Gov. Andrew Cuomo that he
suspend pretrial detainees CPL 30.30 and 240.” Id. at 11.
5 Moreover, as discussed below, the Court declines to exercise supplemental jurisdiction over any state law
claims, including any state law claims based on CPL 30.30.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Joyner v. County of Cayuga, Not Reported in Fed. Supp. (2020)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Declined to Extend by Broadwater v. County of Onondaga, N.D.N.Y.,
March 11, 2024
2020 WL 1904088
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Michael JOYNER, Plaintiff,
v.
COUNTY OF CAYUGA; Cayuga County Sheriff's
Department; City of Auburn; Shawn I. Butler, Chief of
Auburn Police Department, as an Individual and in his
official capacity; Cayuga County District Attorney's
Office; Jon E. Budelmann, as an Individual and in
his capacity as District Attorney for Cayuga County;
and Anthony Spinelli, as an Individual and in his
capacity as an Auburn City Police Officer, Defendants.
5:20-CV-60 (MAD/TWD)
|
Signed 04/17/2020
Attorneys and Law Firms
OF COUNSEL: JARROD W. SMITH, ESQ., OFFICE OF
JARROD W. SMITH, 11 South Main Street, P.O. Box 173,
Jordan, New York 13080, Attorneys for Plaintiff.
OF COUNSEL: JEFFREY R. PARRY, ESQ., OFFICE OF
JEFFREY R. PARRY, 7030 East Genesee Street, Fayetteville,
New York 13066, Attorneys for Plaintiff.
OF COUNSEL: FRANK W. MILLER, ESQ., GIANCARLO
FACCIPONTE, ESQ., OFFICE OF FRANK W. MILLER,
6575 Kirkville Road, East Syracuse, New York 13057,
Attorneys for Defendants.
MEMORANDUM-DECISION AND ORDER
Mae A. D'Agostino, U.S. District Judge:
I. INTRODUCTION
*1 On or about February 18, 2020, Plaintiff filed a complaint
against Defendants City of Auburn, Shawn L. Butler, County
of Cayuga, Cayuga County District Attorney's Office, Jon
E. Budelmann, and Anthony Spinelli, asserting eight claims
pursuant to 42 U.S.C. §§ 1983 and 1988, and state law.
See Dkt. No. 5. Specifically, Plaintiff's complaint alleges the
following causes of action: (1) false arrest under the Fourth
and Fourteenth Amendments; (2) malicious prosecution
under the Fourth and Fourteenth Amendments; (3) negligent
failure to train or supervise; (4) state law false arrest; (5)
state law false imprisonment; (6) intentional and negligent
infliction of emotional distress under New York State law;
(7) negligence; and (8) deliberate indifference to medical care
under the Eighth Amendment. See Dkt. No. 5 at ¶¶ 40-114.
Currently before the Court is Defendants’ motion to dismiss
the complaint in its entirety. See Dkt. No. 9.
II. BACKGROUND
According to the complaint, on August 10, 2018, Plaintiff
was the passenger in a vehicle that was driven by 140 Wall
Street, allegedly in violation of an order of protection for
Linda Fitzsimmons and Lee Joyner, who both reside at that
address. See Dkt. No. 5 at ¶¶ 24-25. Plaintiff resides at 145
Wall Street, several houses down from 140 Wall Street, on the
opposite side of the street. See id. at ¶ 25. Plaintiff was not the
driver of the vehicle and had no control over how the driver
was delivering him to his home. See id.
On August 13, 2018, Plaintiff was arraigned on two felony
complaints charging him with two counts of Criminal
Contempt in the First Degree based on the alleged violation of
the order of protection. See id. at ¶ 22. At the conclusion of his
arraignment, Plaintiff was remanded to the Cayuga County
Jail. See id. Plaintiff claims that “Defendant police officer
lacked the requisite requirement of having probable cause to
arrest the Plaintiff; and did falsely arrest and imprison the
Plaintiff.” Id. at ¶ 23.
On October 4, 2018, Defendant Jon E. Budelmann, in his
capacity as Cayuga County District Attorney, presented
Plaintiff's charges to a grand jury, which “No Billed” the case.
See id. at ¶ 26. At this point, Plaintiff was released from
custody. See id.
During the fifty-three days during which Plaintiff “was being
illegally imprisoned,” he slipped and fell at the Cayuga
County Jail. See id. at ¶ 31. According to Plaintiff, on August
31, 2018, a water pipe burst at the Cayuga County Jail near
Plaintiff's cell while he was already locked in for the night
and sleeping. See id. at ¶ 32. Plaintiff was woken by a
bursting water pipe that was turned off by a Cayuga County
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Correctional officer. See id. at ¶ 33. “The first burst of the
water pipe [occurred] when the Cayuga County Correctional
officer shut the water off” between “12:00 midnight and 2:00
a.m.” Id. at ¶ 34. “Plaintiff was woken by a bursting water
pipe; and observed and heard that the correctional officer was
going to turn off the water and clean up the water spill. At that
time, there was no water in Plaintiff's cell.” Id.
*2 Unbeknownst to Plaintiff, water from the burst pipe went
underneath his locked cell door “and flooded his room while
he was in bed and asleep.” Id. at ¶ 35. “At around 6:30
am-7:00 am, Plaintiff got out of his bed to use the toilet in
his cell. Plaintiff slipped and fell on the wet floor of his cell.
The water on the floor was all near the toilet in his cell. There
was a huge puddle of water between Plaintiff's bunk and the
toilet in his cell.” Id. at ¶ 36. Plaintiff claims that he slipped
and fell, hitting his head and neck on his bunk, and his lower
back on the floor, causing severe injuries. See id. at ¶ 37. At
the time that Plaintiff had fallen and injured himself, a second
water leak had occurred in the pod in which he was being
held. See id. at ¶ 38. Plaintiff claims that, as a result of the fall,
he suffered a herniated disc in his neck and a lower lumbar
strain. See id. at ¶ 39. Plaintiff also claims that he suffers from
numbing of his toes and finger tips. See id.
III. DISCUSSION
A. Standard of Review
A motion to dismiss for failure to state a claim pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure
tests the legal sufficiency of the party's claim for relief. See
Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir. 2007) (citation
omitted). In considering the legal sufficiency, a court must
accept as true all well-pleaded facts in the pleading and draw
all reasonable inferences in the pleader's favor. See ATSI
Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.
2007) (citation omitted). This presumption of truth, however,
does not extend to legal conclusions. See Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citation omitted). Although a
court's review of a motion to dismiss is generally limited to
the facts presented in the pleading, the court may consider
documents that are “integral” to that pleading, even if they are
neither physically attached to, nor incorporated by reference
into, the pleading. See Mangiafico v. Blumenthal, 471 F.3d
391, 398 (2d Cir. 2006) (quoting Chambers v. Time Warner,
Inc., 282 F.3d 147, 152-53 (2d Cir. 2002)).
To survive a motion to dismiss, a party need only plead “a
short and plain statement of the claim,” see Fed. R. Civ.
P. 8(a)(2), with sufficient factual “heft to ‘sho[w] that the
pleader is entitled to relief[,]’ ” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 557 (2007) (quotation omitted). Under this
standard, the pleading's “[f]actual allegations must be enough
to raise a right of relief above the speculative level,” see
id. at 555 (citation omitted), and present claims that are
“plausible on [their] face,” id. at 570. “The plausibility
standard is not akin to a ‘probability requirement,’ but it
asks for more than a sheer possibility that a defendant has
acted unlawfully.” Iqbal, 556 U.S. at 678 (citation omitted).
“Where a complaint pleads facts that are ‘merely consistent
with’ a defendant's liability, it ‘stops short of the line between
possibility and plausibility of “entitlement to relief.” ’ ” Id.
(quoting [Twombly, 550 U.S.] at 557, 127 S. Ct. 1955).
Ultimately, “when the allegations in a complaint, however
true, could not raise a claim of entitlement to relief,” Twombly,
550 U.S. at 558, or where a plaintiff has “not nudged [its]
claims across the line from conceivable to plausible, the[ ]
complaint must be dismissed[,]” id. at 570.
B. Documents Considered in Deciding Motion to Dismiss
In their reply to the motion to dismiss, Defendants submitted
several documents in further support of their motion. See
Dkt. No. 16-1. These documents include (1) the August 10,
2018 criminal complaint charging Plaintiff with Criminal
Contempt in the First Degree, (2) the order of protection
that Plaintiff allegedly violated, (3) the affidavit of Linda
Fitzsimmons that formed the basis for Defendant's underlying
criminal charge, and (4) the incident narrative report of
Defendant Spinelli dated August 15, 2018 relating to the
criminal complaint filed against Plaintiff. See id. at 1-6.
*3 In deciding a motion to dismiss for failure to state a claim,
the court considers the complaint, materials incorporated
into the complaint by reference, materials integral to the
complaint, and facts that are capable of judicial notice. See
DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.
2010).
In the present matter, the Court finds that these documents
are not properly considered at the motion to dismiss stage.
The Court acknowledges that there are cases in which courts
have considered similar police records at the pleading stage.
See Betts v. Shearman, No. 12-cv-3195, 2013 WL 311124,
*3 (S.D.N.Y. Jan. 24, 2013) (considering incident report
and accusatory instrument that “provide[d] crucial details”
about the plaintiff's prosecution), aff'd on qualified immunity
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grounds, 751 F.3d 78 (2d Cir. 2014); cf. Obilo v. City
Univ. of City of N.Y., No. 01-cv-5118, 2003 WL 1809471,
*4 (E.D.N.Y. Apr. 7, 2003) (considering incident report
and police complaint that the plaintiff had conceded were
“implicitly” incorporated into his conspiracy allegations).
The better view, however, adopted by a majority of courts
in our Circuit, is that these kinds of police records are not
“integral” to a false arrest complaint. See Bejaoui v. City
of New York, No. 13-CV-5667, 2015 WL 1529633, *4–5
(E.D.N.Y. Mar. 31, 2015) (noting disagreement and declining
to consider extrinsic police reports); Alvarez v. Cty. of Orange,
95 F. Supp. 3d 385, 394-95 (S.D.N.Y. 2015) (collecting
cases). A document is not “integral” simply because its
contents are highly relevant to a plaintiff's allegations, but
only when it is clear that the plaintiff relied on the document
in preparing his complaint. See Global Network Commc'ns,
Inc. v. City of New York, 458 F.3d 150, 156-57 (2d Cir.
2006); Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d
Cir. 2002). Most typically, “the incorporated document is a
contract or other legal document containing obligations upon
which the plaintiff's complaint stands or falls, but which for
some reason ... was not attached to the complaint.” Global
Network Commc'ns, 458 F.3d at 157. “It must also be clear
that there exist no material disputed issues of fact regarding
the relevance of the document.” Faulkner v. Beer, 463 F.3d
130, 134 (2d Cir. 2006).
Here, there is “no indication in the record that plaintiff
relied on these documents in drafting the complaint.” Allyn
v. Rockland Cty., No. 12-cv-5022, 2013 WL 4038602, *4
(S.D.N.Y. July 30, 2013), affirmed, 646 Fed. Appx. 60 (2d Cir.
2016). To the contrary, Plaintiff relies on his own perceptions
and recollections, while only making passing reference to
the criminal complaint and order of protection. Furthermore,
it is not beyond dispute that the police report and narrative
are a truthful description of the police officer's basis to
arrest Plaintiff. To accept the truth of the documents offered
by Defendants at this stage would amount to a premature
determination that the arresting officers and the alleged victim
are more credible than Plaintiff. To make such a determination
at this stage would not be appropriate, and therefore the Court
will not consider the facts adduced in these documents. The
Court will, however, take judicial notice of the existence of
the criminal complaint, supporting affidavit, and order of
protection. See Williams v. City of New York, No. 14-cv-5123,
2015 WL 4461716, *1 (S.D.N.Y. July 21, 2015) (noting that
the court “may take judicial notice of the procedural history
of plaintiff's criminal case, but not of the truth of the arresting
officers’ version of events”); see also Ribaudo v. Desimone,
No. 3:18-cv-1190, 2019 WL 1906269, *4 (M.D. Pa. Apr. 5,
2019) (holding that “even if judicial notice is taken of these
documents, ‘a court may take notice of such documents only
to establish their existence and legal effect, or to determine
what statements they contained ... not for the truth of the
matters asserted’ ”) (quoting Fine v. ESPN, Inc., 11 F. Supp.
3d 209, 223 (N.D.N.Y. 2014)) (other citation omitted).
C. Monell and Supervisory Liability
*4 “Under the standards of Monell v. Department of Social
Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611
(1978), a municipality can be held liable under [42 U.S.C. §
1983] if the deprivation of the plaintiff's rights under federal
law is caused by a governmental custom, policy, or usage of
the municipality.” Jones v. Town of E. Haven, 691 F.3d 72, 80
(2d Cir. 2012). Liability under Section 1983 “is imposed on
the municipality [only] when it has promulgated a custom or
policy that violates federal law and, pursuant to that policy, a
municipal actor has tortiously injured the plaintiff.” Askins v.
Doe No. 1, 727 F.3d 248, 253 (2d Cir. 2013). “Absent such a
custom, policy, or usage, a municipality cannot be held liable
on a respondeat superior basis for the tort of its employee.”
Jones, 691 F.3d at 80. Thus, for a municipality to be held
liable under Section 1983 for the unconstitutional actions of
its employees, “a plaintiff is required to plead and prove three
elements: (1) an official policy or custom that (2) causes the
plaintiff to be subjected to (3) a denial of a constitutional
right.” Wray v. City of New York, 490 F.3d 189, 195 (2d Cir.
2007) (internal quotation marks omitted).
“Supervisory liability is a concept distinct from municipal
liability, and is ‘imposed against a supervisory official in his
individual capacity for his own culpable action or inaction
in the training, supervision, or control of his subordinates.’
” Kucera v. Tkac, No. 5:12-cv-264, 2013 WL 1414441, *4
(D. Vt. Apr. 8, 2013) (quoting Odom v. Matteo, 772 F. Supp.
2d 377, 403 (D. Conn. 2011)). Prior to the Supreme Court's
decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Second
Circuit required a plaintiff to allege one of the following
categories for supervisory liability under § 1983:
(1) the defendant participated directly
in the alleged constitutional violation,
(2) the defendant, after being informed
of the violation through a report or
appeal, failed to remedy the wrong,
(3) the defendant created a policy or
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custom under which unconstitutional
practices occurred, or allowed the
continuance of such a policy or
custom, (4) the defendant was grossly
negligent in supervising subordinates
who committed the wrongful acts, or
(5) the defendant exhibited deliberate
indifference to the rights of [persons]
by failing to act on information
indicating that unconstitutional acts
were occurring.
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
In order to succeed on his Monell and supervisory liability
claims, a plaintiff must first “identify obvious and severe
deficiencies” in the policies of the municipal and supervisory
defendants and “show a causal relationship” between
those deficiencies and his alleged deprivations. Reynolds
v. Giuliani, 506 F.3d 183, 193 (2d Cir. 2007). However,
to the extent that a plaintiff premises his claims on a
failure to train or supervise, such failure “may constitute
an official policy or custom [only] if the failure amounts
to ‘deliberate indifference’ to the rights of those with
whom the city employees interact.” Wray, 490 F.3d at 195.
Similarly, a supervisory defendant is liable only for the
creation or continuation of policy that leads to a pattern
of unconstitutional conduct or if he demonstrated deliberate
indifference in failing to act on information that a pattern of
unconstitutional conduct was occurring. See Colon, 58 F.3d
at 873.
“To establish deliberate indifference a plaintiff must show that
a policymaking official was aware of constitutional injury, or
the risk of constitutional injury, but failed to take appropriate
action to prevent or sanction violations of constitutional
rights.” Jones, 691 F.3d at 81.
A pattern of similar constitutional
violations by untrained employees is
“ordinarily necessary” to demonstrate
deliberate indifference for purposes of
failure to train [or supervise because]
[w]ithout notice that a course of
training is deficient in a particular
respect, decisionmakers can hardly
be said to have deliberately chosen
a training program that will cause
violations of constitutional rights.
*5 Connick v. Thompson, 563 U.S. 51, 62 (2011) (quoting
Bd. of Cty. Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397,
409, 117 S. Ct. 1382, 137 L. Ed. 2d 626 (1997)). “[W]hen
city policymakers are on actual or constructive notice that
a particular omission in their training program causes city
employees to violate citizens’ constitutional rights, the city
may be deemed deliberately indifferent if the policymakers
choose to retain that program.” Id. at 61 (citation omitted). 1
D. Cayuga County District Attorney's Office and
Auburn Police Department
Plaintiff names the Cayuga County District Attorney's Office
as a named Defendant in this case. The caselaw is clear,
however, that a district attorney's office is not an entity subject
to suit under 42 U.S.C. § 1983. See Michels v. Greenwood
Lake Police Dep't, 387 F. Supp. 2d 361, 367 (S.D.N.Y.
2005) (citing cases); Griffith v. Sadri, No. 07-CV-4824,
2009 WL 2524961, *8 (E.D.N.Y. Aug. 14, 2009). Similarly,
Plaintiff has listed the Auburn Police Department as an entity
responsible for several of the alleged constitutional violations.
See Dkt. No. 5 at ¶¶ 51-82. As with the District Attorney's
Office, the Auburn Police Department (which is not listed as
a Defendant in the caption of the complaint), the Court finds
that it must be dismissed because a police department is not
an independent, suable entity separate from the municipality
in which the police department is located. See Jenkins v.
City of New York, 478 F.3d 76, 93 (2d Cir. 2007) (citation
omitted); Krug v. City of Rennselaer, 559 F. Supp. 2d 223, 247
(N.D.N.Y. 2008) (citing cases); Koulkina v. City of New York,
559 F. Supp. 2d 300, 315 (S.D.N.Y. 2008) (citing cases).
Accordingly, the Court dismisses Plaintiff's claims against the
Cayuga County District Attorney's Office and the Auburn
Police Department.
E. False Arrest
In their motion to dismiss, Defendants contend that, based
on Plaintiff's own allegations, probable cause was present
to believe that he committed the offense for which he was
arrested. See Dkt. No. 9-1 at 14-16. Defendants claim that
Plaintiff “admits that he was charged with violating duly
issued orders of protection issued for Linda Fitzsimmons and
Lee Joyner, who reside at 140 Wall Street in the City of
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Auburn. See id. at 15 (citing Dkt. No. 5 at ¶ 24). Defendants
further claim that Plaintiff “admits he was ‘driven by’ 140
Wall Street on August 10, 2018.” Id. (citing Dkt. No. 5 at ¶
25). Defendants contend that the fact that Plaintiff claims that
he was not driving the vehicle “has no bearing on whether the
order of protection was reasonably deemed violated by police
authorities, and Plaintiff is careful not to deny that he was
in fact at 140 Wall Street on the date in question, which is a
per se violation of the order.” Id. In response, Plaintiff argues
that since he “was arrested for traveling on a public road in
route to his own home and in violation of no Order, law or
ordinance and, as it cannot be denied that he was ‘no billed’
by the Grand Jury, it would seem plausible to this writer that
any court would agree to the plausibility of Plaintiff's claims.”
Dkt. No. 10 at 16.
*6 In assessing Fourth Amendment claims of false arrest
brought under Section 1983, courts generally look to the law
of the state in which the arrest is alleged to have occurred. See
Russo v. City of Bridgeport, 479 F.3d 196, 203 (2d Cir. 2007)
(citation omitted). To prevail on a false arrest claim under
New York law, a plaintiff has to prove the following: “(1) the
defendant intended to confine the plaintiff, (2) the plaintiff
was conscious of the confinement, (3) the plaintiff did not
consent to the confinement and (4) the confinement was not
otherwise privileged.” Singer v. Fulton Cnty. Sheriff, 63 F.3d
110, 118 (2d Cir. 1995) (alteration and internal quotation
marks omitted) (quoting Broughton v. State, 37 N.Y.2d 451,
456, 373 N.Y.S.2d 87, 335 N.E.2d 310 (1975)); see also
Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir.
2012) (outlining the elements of false arrest claims). “The
existence of probable cause to arrest constitutes justification
and ‘is a complete defense to an action for false arrest.’ ”
Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (quoting
Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994)); see
also Ackerson, 702 F.3d at 19-20 (citing Weyant, 101 F.3d at
852). “A police officer has probable cause for an arrest when
he has ‘knowledge or reasonably trustworthy information
of facts and circumstances that are sufficient to warrant a
person of reasonable caution in the belief that the person
to be arrested has committed or is committing a crime[.]’ ”
Swartz v. Insogna, 704 F.3d 105, 111 (2d Cir. 2013) (quoting
Weyant, 101 F.3d at 852); Gonzalez v. City of Schenectady,
728 F.3d 149, 155 (2d Cir. 2013) (same). Such knowledge
or information can be based on information provided by an
eyewitness, unless the circumstances would raise a doubt as
to the eyewitness’ veracity. See Curley v. Vill. of Suffern, 268
F.3d 65, 70 (2d Cir. 2001) (citing Singer, 63 F.3d at 119). The
question is whether the facts known to the arresting officer, at
the time of the arrest, objectively provided probable cause to
support the arrest. See Gonzalez, 728 F.3d at 155.
In the present matter, the Court finds that Defendants’ motion
to dismiss Plaintiff's false arrest claim must be denied as to
Defendant Spinelli. The complaint sufficiently alleges, albeit
barely, that Defendant Spinelli lacked probable cause to arrest
Plaintiff for the crime of Criminal in the First Degree. Indeed,
it is unclear from the complaint whether Plaintiff's conduct
was, in fact, in violation of the order of protection. 2
However, to the extent that Plaintiff attempts to assert a
false arrest claim against any other named Defendant, the
claim must be dismissed. Plaintiff's complaint is devoid
of any facts that would permit the Court to find that any
other Defendant was personally involved in the alleged false
arrest. Aside from conclusory allegations merely reciting
the underlying law, Plaintiff fails to include any facts that
plausibly allege the personal involvement of any municipal
or supervisory Defendant. For example, Plaintiff alleges that
“Defendant Butler, Defendant City and Defendant County
have created and tolerated an atmosphere of lawlessness, and
have developed and maintained long-standing, department-
wide customs, law enforcement related policies, procedures,
customs, practices, and/or failed to properly train and/or
supervise its officers in a manner amounting to deliberate
indifference to the constitutional rights of Plaintiff and of the
public.” Dkt. No. 78 at ¶ 78. While this allegation accurately
reflects what is required to hold municipal and supervisory
officials personally liable for the acts of other, the simple
recitation of the relevant law is insufficient to withstand a
motion to dismiss. Rather, Plaintiff was required to allege
facts, specific to his case, demonstrating how these municipal
and supervisory Defendants were personally involved in the
alleged unconstitutional conduct, which he has failed to do.
Simply put, the legal conclusions in Plaintiff's complaint,
devoid of any supporting facts, fail to plausibly allege
supervisory or municipal liability as to this claim.
*7 Accordingly, the Court denies Defendants’ motion to
dismiss Plaintiff's false arrest claim as to Defendant Spinelli.
F. Malicious Prosecution
In their motion to dismiss, Defendants argue that Plaintiff's
malicious prosecution must be dismissed because the
complaint fails to set forth facts plausibly alleging that the
prosecution was initiated without probable cause or that any
named Defendant acted with the requisite malice. See Dkt.
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No. 9-1 at 16-17. In response, Plaintiff states as follows: “As
the plaintiff was arrested for traveling on a public road in
route to his own home and in violation of no Order, law
or ordinance, as it cannot be denied that he was ‘no billed’
by the Grand Jury and as he spent 53 days in jail for no
reason whatsoever, it would seem plausible to this writer
that any court would agree to the plausibility of Plaintiff's
claims.” Dkt. No. 10 at 17 (citing Swierkiezicz v. Sorema, 534
U.S. 506 (2002)). Plaintiff brings his malicious prosecution
claim against the City of Auburn, Auburn Police Department,
Cayuga County, and Defendant Butler. See Dkt. No. 5 at ¶¶
51-82. While Plaintiff may be confident in the viability of his
claim, this Court finds that Plaintiff has failed to plausibly
allege facts supporting a claim for malicious prosecution. 3
To prevail on a Section 1983 claim for malicious prosecution,
“a plaintiff must show a violation of his rights under the
Fourth Amendment ... and must establish the elements of a
malicious prosecution claim under state law.” Manganiello v.
City of New York, 612 F.3d 149, 161 (2d Cir. 2010) (citations
omitted). Under New York law, a plaintiff must plausibly
allege four elements to support a malicious prosecution
claim: “ ‘(1) the initiation or continuation of a criminal
proceeding against plaintiff; (2) termination of the proceeding
in plaintiff's favor; (3) lack of probable cause for commencing
the proceeding; and (4) actual malice as a motivation for
defendant's actions.’ ” Id. (quotation and other citations
omitted); see also Dufort v. City of New York, 874 F.3d
338, 350 (2d Cir. 2017) (quotation omitted). Initiating a
criminal proceeding against a person without probable cause,
coupled with a deprivation of liberty, is a Fourth Amendment
violation. See Murphy v. Lynn, 118 F.3d 938, 944-45 (2d Cir.
1997) (citation omitted).
*8 The Second Circuit has held that although “police
officers do not generally “commence or continue” criminal
proceedings against defendants, a claim for malicious
prosecution can still be maintained against a police officer if
the officer is found to ‘play[ ] an active role in the prosecution,
such as giving advice and encouragement or importuning the
authorities to act.’ ” Bermudez v. City of New York, 790 F.3d
368, 377 (2d Cir. 2015) (quotations omitted). “This element
might be satisfied by, for example, showing that an officer
generated witness statements or was regularly in touch with
the prosecutor regarding the case.” Id. (citation omitted).
Recently, the New York Court of Appeals acknowledged that
it has “ ‘never elaborated on how a plaintiff in a malicious
prosecution case demonstrates that the defendant commenced
or continued the underlying criminal proceeding.’ ” Torres
v. Jones, 26 N.Y.3d 742, 760-61 (2016) (quotation omitted).
“But, by suggesting that a defendant other than a public
prosecutor may be liable for supplying false information to
the prosecutor in substantial furtherance of a criminal action
against the plaintiff, we have implicitly recognized that such
conduct may, depending on the circumstances, constitute the
commencement or continuation of the prosecution.” Id. at 761
(citations omitted); see also Colon v. City of New York, 60
N.Y.2d 78, 82 (1983) (noting that proof establishing “that the
police witnesses” have falsified evidence may create liability
for malicious prosecution); Hopkinson v. Lehigh Val. R.R. Co.,
249 N.Y. 296, 300-01 (1928) (noting that the falsification of
evidence and presentation of that evidence to the prosecutor
can constitute commencement of a prosecution).
1. Initiation of Criminal Prosecution
In the present matter, the Court finds that Plaintiff's malicious
prosecution claim must be dismissed. Initially, the Court
finds that Plaintiff has failed to adequately allege that any
named Defendant initiated that the prosecution against him.
While Defendant Spinelli filed the criminal complaint against
him, nothing in the complaint suggests his participation
in Plaintiff's prosecution beyond that. Nearly all cases in
which law enforcement officers were found to have initiated
or continued a prosecution for purposes of a malicious
prosecution claim involve officers who provided knowingly
false and/or fabricated evidence to unwitting prosecutors.
See, e.g., Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130
(2d Cir. 1997); Ramos v. City of New York, 285 A.D.2d
284, 299 (1st Dep't 2001). There is a rebuttable presumption
that criminal proceedings are initiated by prosecutors, not
arresting officers. See Mitchell v. Victoria Home, 434 F. Supp.
2d 219, 228 (S.D.N.Y. 2006) (citation omitted). “[I]n the
absence of evidence that the police officer misled or pressured
the official who could be expected to exercise independent
judgment,” a claim of malicious prosecution against the
officer must fail. See Townes v. City of New York, 176 F.3d
138, 147 (2d Cir. 1999) (citations omitted).
Plaintiff's complaint is devoid of any allegations that
Defendant Spinelli engaged in any of the conduct identified
above that would permit the Court to find that Plaintiff
plausibly alleged that any party other than the District
Attorney initiated the prosecution against him. As such, the
Court finds that Plaintiff's malicious prosecution claim is
subject to dismissal.
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2. Malice
Plaintiff's complaint is also devoid of any facts supporting
an inference that the prosecution was instituted with malice.
As Defendants correctly note, Plaintiff misconstrues the
standard on a motion to dismiss. While Plaintiff is not
required to “prove” that Defendants acted in a malicious
manner to sustain his claim, he is certainly required to plead
enough facts that would make such a conclusion plausible.
Plaintiff's complaint fails to plead any facts that would
support the inference that any named Defendant (or their
employees) acted with the requisite malice to support a
malicious prosecution claim. Rather, the complaint simply
alleges that he was subjected to normal processes of law. The
number of days that Plaintiff spent in jail is irrelevant to this
consideration, as is the fact that he was “no billed” by the
Grand Jury. Plaintiff does not allege that he had previous
interactions with any of the named Defendants, or that his
interactions with them during his arrest and subsequent
prosecution would indicate a malicious intent. Finally, as
to the supervisory and municipal Defendants, Plaintiff has
failed to put forth any facts in support of this claim. Rather,
the complaint contains nothing but legal conclusions without
providing any basis for the Court to conclude that Plaintiff has
plausibly alleged a malicious prosecution claim against these
Defendants.
*9 Accordingly, the Court finds that Plaintiff's malicious
prosecution claim is subject to dismissal on this alternative
ground.
3. Prosecutorial Immunity
Prosecutors sued under 42 U.S.C. § 1983 enjoy absolute
immunity “ ‘from claims for damages arising out of
prosecutorial duties that are “intimately associated with
the judicial phase of the criminal process.” ’ ” Okongwu
v. County of Erie, No. 14CV832, 2017 WL 2686454, *3
(W.D.N.Y. June 22, 2017) (quoting Doe v. Phillips, 81 F.3d
1204, 1209 (2d Cir. 1996) (quoting Imbler v. Pachtman, 424
U.S. 409, 430 (1976))). The prosecutor enjoys this absolute
immunity because he or she is acting in a quasi-judicial
capacity. See Okongwu v. County of Erie, No. 14CV832,
2018 WL 1383233, *3 (W.D.N.Y. Mar. 19, 2018). The
function performed by the prosecutor defines the scope of
this immunity. See Imbler, 424 U.S. at 430; Warney, 587 F.3d
at 121. Acts of advocacy before a court, or preparation to
advocate, are absolutely immune, Imbler, 424 U.S. at 430-31;
see also Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993),
while administrative duties or investigatory functions are not
so immune, Imbler, 424 U.S. at 431 n.33; Buckley, 509 U.S. at
273; Warney, 587 F.3d at 121. “This protection encompasses
‘all of their activities that can fairly be characterized as
closely associated with the conduct of litigation or potential
litigation.’ ” Peters, 848 F. Supp. 2d at 385 (quoting Barrett v.
United States, 798 F.2d 565, 571-72 (2d Cir. 1986)). As noted
by the Second Circuit, “thus, to establish [absolute] immunity,
the ‘ultimate question’ is ‘whether the prosecutors have
carried their burden of establishing that they were functioning
as “advocates” when they engaged in the challenged conduct.’
” Warney, 587 F.3d at 121 (quoting Doe v. Phillips, 81 F.3d
1204, 1209 (2d Cir. 1996)).
Absolute immunity extends from the initiation of a
prosecution and presenting a case at trial, Boria v. Hicks, No.
5:17-CV-00486, 2017 WL 2983304, *4 (N.D.N.Y. June 14,
2017), through the decision to end it, see Okongwu, 2017
WL 2686454, at *4, as well as post-conviction defense of
proceedings and the decision whether to vacate a conviction,
Warney, 587 F.3d at 123; Peters, 848 F. Supp. 2d at 387.
Absolute immunity applies in the preparation for the initiation
of judicial proceedings, but not to the investigative or
administrative duties of a prosecutor. See Warney, 587 F.3d at
122. In Peters, the court listed activities that are investigative
or administrative that do not deserve absolute immunity,
such as orchestrating a sting operation, authorizing wiretaps,
coercing confidential informant to consent to a wire, releasing
information to the media, assisting in the execution of a
warrant, or supervising and interacting with law enforcement
agents to acquire evidence. See Peters, 848 F. Supp. 2d at 386
(citing cases).
In the present matter, the Court finds that Defendant
Budelmann, as Cayuga County District Attorney is entitled
to absolute prosecutorial immunity. In the complaint, Plaintiff
alleges that “[o]n October 4, 2018, Defendant district attorney
presented Plaintiff's criminal charges to the Grand Jury of
Cayuga County where the grand jury ‘No Billed’ the case;
and Plaintiff was released from his illegal confinement at
the Cayuga County Jail.” Dkt. No. 5 at ¶¶ 26, 91. Further,
Plaintiff claims that “Defendant district attorney knew at the
time of Plaintiff's case being presented to the Grand Jury of
Cayuga County that he would not prevail due to the lack of
probable cause.” Id. at ¶ 29. These allegations make clear
that Defendant Budelmann has been sued relating to his role
in presenting the case to the grand jury; conduct for which
he is entitled to absolute prosecutorial immunity. See Hill
v. City of New York, 45 F.3d 653, 661-62 (2d Cir. 1995)
(holding that “that prosecutors are immune from § 1983
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liability for their conduct before a grand jury”) (citations
omitted); Bernard v. County of Suffolk, 356 F.3d 495, 505 (2d
Cir. 2004) (citations omitted). Accordingly, Plaintiff's claim
of malicious prosecution against Defendant Budelmann is
subject to dismissal on this alternative ground.
*10 Finally, to the extent that Plaintiff seeks to impute
the conduct of Defendant Budelmann to Cayuga County, the
claim must necessarily be dismissed. The Second Circuit
Court of Appeals has unequivocally held that “prosecutorial
acts may not fairly be said to represent official policy of
the County,” because “[w]hen prosecuting a criminal matter,
a district attorney in New York State, acting in a quasi-
judicial capacity, represents the State not the county.” Baez
v. Hennessy, 853 F.2d 73 (2d Cir. 1988) (internal quotation
omitted); see also Doe v. Smith, 704 F. Supp. 1177, 1184
(S.D.N.Y. 1988). Since Defendant Budelmann was acting on
behalf of the State of New York, and not Cayuga County, any
alleged misconduct on Defendant Budelmann's part cannot be
imputed to Cayuga County.
G. Negligent/Intentional Infliction of Emotional Distress
In his sixth cause of action, Plaintiff alleges claims of
negligent and intentional infliction of emotional distress
against Defendants Butler, Spinelli, and Budelmann. See Dkt.
No. 5 at ¶¶ 96-98. Defendants contend these claims fail as a
matter of law. See Dkt. No. 9-1 at 19-20.
As to the claim of negligent infliction of emotional distress,
it is well settled that a “ ‘plaintiff seeking damages for an
injury resulting from a wrongful arrest and detention may
not recover under broad general principles of negligence ...
but must proceed by way of the traditional remedies of false
arrest and imprisonment.’ ” Greenaway v. Cty. of Nassau,
97 F. Supp. 3d 225, 239 (E.D.N.Y. 2015) (quoting Secard
v. Dep't of Soc. Servs. of Cnty. of Nassau, 204 A.D.2d 445,
612 N.Y.S. 2d 167, 168 (2d Dep't 1994)). This is precisely
what Plaintiff is attempting to do here. Tacking on a claim
for negligent infliction of emotional distress without any
other facts or assertions is insufficient under the relevant law.
Moreover, even if this claim could be considered independent
of Plaintiff's false arrest claim, it is still subject to dismissal
because Plaintiff has not alleged any facts demonstrating that
Defendants breached a duty owed to Plaintiff. As such, the
Court grants Defendants’ motion to dismiss as to Plaintiff's
claim of negligent infliction of emotional distress.
As to the intentional infliction of emotional distress claim,
it too must be dismissed. “Intentional infliction of emotional
distress has four elements: ‘(i) extreme and outrageous
conduct; (ii) intent to cause, or disregard of a substantial
probability of causing, severe emotional distress; (iii) a causal
connection between the conduct and injury; and (iv) severe
emotional distress.’ ” Greenaway, 97 F. Supp. 3d at 239-40
(quoting Howell v. N.Y. Post Co., Inc., 81 N.Y.2d 115, 596
N.Y.S. 2d 350, 612 N.E. 2d 699, 702 (1993)). “The ‘extreme
and outrageous conduct’ must ‘go beyond all possible bounds
of decency’ and be ‘atrocious, and utterly intolerable in
a civilized community.’ ” Id. (quotation and other citation
omitted).
Here, Plaintiff claims that Defendants Budelmann, Spinelli,
and Butler engaged in “extreme and outrageous conduct,
which intentionally and/or negligently caused severe
emotional distress to Plaintiff.” Dkt. No. 5 at ¶ 97. Notably
absent from the complaint is any explanation what this
“extreme and outrageous conduct” was. “ ‘Liability has been
found only where the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized community.’ ” Murphy v.
American Home Products Corp., 58 N.Y.2d 293, 302 (1983)
(quotation omitted). The threadbare facts alleged by Plaintiff,
which include the fact that he was arrested and eventually
released after the grand jury refused to indict, fall far short of
this strict standard.
*11 Accordingly, the Court grants Defendants’ motion
to dismiss Plaintiff's claims for negligent and intentional
infliction of emotional distress.
H. Negligence
In his seventh cause of action, Plaintiff asserts a claim for
negligence. See Dkt. No. 5 at ¶¶ 100-04. In this claim, Plaintiff
argues that his arrest, Defendants’ failure to “follow the
criminal law of the State of New York,” and Plaintiff's fifty-
three days of incarceration, were the product of Defendants’
negligence. See id.
“To prevail on a claim for negligence under New York law,
a plaintiff must establish ‘(1) the existence of a duty on
the defendant's part as to the plaintiff; (2) a breach of that
duty; and (3) resultant injury to the plaintiff.’ ” Frederique v.
County of Nassau, 168 F. Supp. 3d 455, 485 (E.D.N.Y. 2016)
(quotation omitted). “However, ‘[u]nder New York law, harm
predicated on an intentional act may not give rise to a claim
of negligence.’ ” Id. (quotation and other citation omitted).
Moreover, it is well settled that, “[u]nder New York law, a
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plaintiff may not recover under general negligence principles
for a claim that law enforcement officers failed to exercise the
appropriate degree of care in effecting an arrest or initiating
a prosecution.” Bernard v. United States, 25 F.3d 98, 102
(2d Cir. 1994) (citing Boose v. City of Rochester, 71 A.D.2d
59, 421 N.Y.S.2d 740, 743 (4th Dept. 1979)) (other citation
omitted).
In the present matter, the Court finds that Plaintiff's
negligence claim must be dismissed as it is simply redundant
of Plaintiff's claims of false arrest, false imprisonment,
and malicious prosecution. Accordingly, the Court grants
Defendants’ motion to dismiss as to this claim.
I. Deliberate Indifference to Serious Medical Needs
In his eighth cause of action, Plaintiff claims that “Defendant
Medical Staff and Defendant Cayuga County Sheriff's
Department” were deliberately indifferent to his medical care
and treatment after he was injured when a water pipe broke
outside his cell on August 31, 2018. See Dkt. No. 5 at ¶¶
105-14.
A pretrial detainee's claims of unconstitutional conditions of
confinement are governed by the Due Process Clause of the
Fourteenth Amendment, rather than the Cruel and Unusual
Punishments Clause of the Eight Amendment. See Darnell v.
Pineiro, 849 F.3d 17, 29 (2d Cir. 2017) (citations omitted).
A pretrial detainee's claims are evaluated under the Due
Process Clause because, “ ‘[p]retrial detainees have not been
convicted of a crime and thus ‘may not be punished in any
manner — neither cruelly and unusually nor otherwise.’ ” Id.
(quotations omitted).
“A pretrial detainee may establish a § 1983 claim for
allegedly unconstitutional conditions of confinement by
showing that the officers acted with deliberate indifference to
the challenged conditions.” Darnell, 849 F.3d at 29 (citation
omitted). “This means that a pretrial detainee must satisfy
two prongs to prove a claim, an ‘objective prong’ showing
that the challenged conditions were sufficiently serious to
constitute objective deprivations of the right to due process,
and a ‘subjective prong’ — perhaps better classified as a
‘mens rea prong’ or ‘mental element prong’ — showing
that the officer acted with at least deliberate indifference to
the challenged conditions.” Id. “The reason that the term
‘subjective prong’ might be a misleading description is that,
as discussed below, the Supreme Court has instructed that
‘deliberate indifference’ roughly means ‘recklessness,’ but
‘recklessness’ can be defined subjectively (what a person
actually knew, and disregarded), or objectively (what a
reasonable person knew, or should have known).” Id. (citing
Farmer v. Brennan, 511 U.S. 825, 836-37, 114 S. Ct. 1970,
128 L. Ed. 2d 811 (1994)).
*12 Under both the Eighth and Fourteenth Amendments,
to establish an objective deprivation, “the inmate must show
that the conditions, either alone or in combination, pose
an unreasonable risk of serious damage to his health,”
which includes the risk of serious damage to “physical and
mental soundness.” Id. at 30 (citations omitted). “There is no
‘static test’ to determine whether a deprivation is sufficiently
serious; instead, ‘the conditions themselves must be evaluated
in light of contemporary standards of decency.’ ” Id. (quoting
Blissett v. Coughlin, 66 F.3d 531, 537 (2d Cir. 1995) (citing
Rhodes v. Chapman, 452 U.S. 337, 346, 101 S. Ct. 2392,
69 L. Ed. 2d 59 (1981))). For example, the Second Circuit
has “ ‘held that prisoners may not be deprived of their basic
human needs — e.g., food, clothing, shelter, medical care,
and reasonable safety — and they may not be exposed to
conditions that pose an unreasonable risk of serious damage
to [their] future health.’ ” Id. (quoting Jabbar v. Fischer, 683
F.3d 54, 57 (2d Cir. 2012)).
“ ‘[C]onditions of confinement may be aggregated to rise to
the level of a constitutional violation, but only when they
have a mutually enforcing effect that produces the deprivation
of a single, identifiable human need such as food, warmth,
or exercise.’ ” Darnell, 849 F.3d at 30 (quotations omitted).
“Unsanitary conditions, especially when coupled with other
mutually enforcing conditions, such as poor ventilation and
lack of hygienic items (in particular, toilet paper), can rise to
the level of an objective deprivation.” Id. (citations omitted).
The second element of a conditions of confinement claim
brought under the Due Process Clause of the Fourteenth
Amendment is the defendant's “deliberate indifference”
to any objectively serious condition of confinement. See
Darnell, 849 F.3d at 32. Courts have traditionally referred
to this second element as the “subjective prong.” “But
‘deliberate indifference,’ which is roughly synonymous with
‘recklessness,’ can be defined either ‘subjectively’ in a
criminal sense, or ‘objectively’ in a civil sense.” Id. As such,
the “subjective prong” might better be described as the “mens
rea prong” or “mental element prong.” Id.
Under the second prong of the deliberate indifference
analysis, the Court must consider whether the defendants
“acted intentionally to impose the alleged condition, or
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recklessly failed to act with reasonable care to mitigate the
risk that the condition posed to the pretrial detainee even
though [they] knew, or should have known, that the condition
posed an excessive risk to health or safety.” Darnell, 849 F.3d
at 35. Under this standard, the plaintiff “must prove that [the
defendants] acted intentionally or recklessly, and not merely
negligently.’ ” Id. at 36.
In the present matter, the Court finds that Plaintiff has failed
to plausibly allege a claim of deliberate indifference under
the Fourteenth Amendment. Initially, the Court notes that the
“medical staff” at the Cayuga County Jail were not named
as defendants in this action. Rule 10(a) requires a plaintiff
to “name all the parties” in the Complaint. See Fed. R. Civ.
P. 10(a). Although the naming of pseudonymous defendants
is permissible where a plaintiff requires discovery to learn
the true identities of the defendants, the plaintiff subsequently
must amend the complaint to reflect the discovered identities
and effect service on the named parties within the 120-day
time period set forth in Rule 4(m). See Petty v. Cty. of
Franklin, 478 F.3d 341, 345–46 (6th Cir. 2007).
Here, Plaintiff has not brought suit against any pseudonymous
defendants, and only makes reference to these unidentified
individuals in the body of the complaint. If Plaintiff had
intended to sue then-unknown members of the medical staff
at the jail, he should have brought suit against “John and/
or Jane Doe” defendants, who could be identified through
discovery. Upon obtaining their identities, Plaintiff would
then be required to amend his complaint to reflect the Doe
defendants’ identities. See Simmons v. District of Columbia,
750 F. Supp. 2d 43, 45 (D.D.C. 2011) (holding that a
plaintiff “may bring an action against unknown John Doe
defendants, but plaintiff must substitute named defendants
for those unknown defendants after the completion of
discovery”) (citations omitted); see also Estate of Rosenberg
by Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995)
(holding that “[a]n action may proceed against a party whose
name is unknown if the complaint makes allegations specific
enough to permit the identity of the party to be ascertained
after reasonable discovery”). Here, Plaintiff has not brought
suit against unknown members of the medical staff at the
Cayuga County Jail or providing any facts that would permit
Defendants to assist in obtaining their identities. As such, the
only potential deliberate indifference claim asserted in the
complaint is a municipal liability claim against Defendant
Cayuga County.
*13 In his complaint, Plaintiff has alleged that a water pipe
burst outside his cell during the night, the water was turned
off, and at some point during the night it pooled near his cell's
toilet. See Dkt. No. 5 at ¶¶ 109-13. At sometime between 6:30
a.m. and 7:00 a.m., Plaintiff claims that he got out of bed to
use the toilet in his cell and slipped and fell on the wet floor.
See id. at ¶ 110. Plaintiff alleges that, when he fell, he hit his
head and neck on his bunk and his lower back on the floor,
causing severe injuries, including a herniated disc in his neck
and lower lumbar strain. See id. at ¶¶ 111-13. Plaintiff claims
that, “[a]fter the injury up and until Plaintiff was released
on October 4, 2018[,] Plaintiff was denied medical treatment
for his injuries that he suffered inclusive of medication and
treatment from a physician.” Id. at ¶ 114.
Initially, the Court notes that nothing in the complaint
indicates that Plaintiff's alleged injury was caused by a
municipal custom, policy, or usage, as is required to find a
plausible claim against Defendant Cayuga County. Rather,
Plaintiff claims that a water pipe leaked outside his cell during
the night and that a “correctional officer ... turn[ed] off the
water and clean[ed] up the water spill. At that time, there was
no water in Plaintiff's cell.” Dkt. No. 5 at ¶ 108. When the
second pipe leaked, some water entered Plaintiff's cell, which
caused Plaintiff to fall. See id. at ¶ 109. This isolated incident,
involving a bursting water pipe, is woefully insufficient
to plausibly allege municipal liability for Plaintiff's alleged
injury. See Connick, 131 S. Ct. at 1360; see also Plair v. City
of New York, 789 F. Supp. 2d 459, 470 (S.D.N.Y. 2011) (“[I]t
is well established that a single incident does not give rise
to an unlawful practice by subordinate officials so permanent
and well-settled as to constitute custom or usage”) (internal
quotation marks omitted); Giaccio v. City of New York, 308
Fed. Appx. 470, 472 (2d Cir. 2009) (finding that allegations
of, at most, four prior incidents of misconduct “falls far short
of establishing a practice that is ‘so persistent or widespread’
as to justify the imposition of municipal liability”) (internal
quotation marks omitted).
Even assuming that Plaintiff had asserted this claim against
an individually named Defendant, the claim would still
be dismissed. To satisfy the second prong of a deliberate
indifference claim, Plaintiff must plausibly allege facts
suggesting that a defendant “acted intentionally to impose the
alleged condition, or recklessly failed to act with reasonable
care to mitigate the risk that the condition posed to the pretrial
detainee even though [they] knew, or should have known,
that the condition posed an excessive risk to health or safety.”
Darnell, 849 F.3d at 35. At best, the facts set forth in the
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complaint describe negligence on the part of the correctional
staff, which is insufficient to support a claim of deliberate
indifference. See id. at 36.
Finally, to the extent that Plaintiff is basing his claim on the
alleged deprivation of medical care after his accident, Plaintiff
has failed to provide any factual basis in support of his
conclusory assertion that he “was denied medical treatment
for his injuries that he suffered inclusive of medication and
treatment from a physician.” Dkt. No. 5 at ¶ 114. The
complaint fails to allege that he brought his alleged injuries to
the attention of the correctional or medical staff at the Cayuga
County jail (or even identify any such individual).
Based on the foregoing, the Court grants Defendants’ motion
to dismiss as to Plaintiff's deliberate indifference claim.
IV. CONCLUSION
After carefully the entire record in this matter, parties’
submissions and the applicable law, and for the reasons stated
herein, the Court hereby
*14 ORDERS that Defendants’ motion to dismiss (Dkt. No.
9) is GRANTED in part and DENIED in part; 4 and the
Court further
ORDERS that Defendants City of Auburn, Butler, Cayuga
County, Cayuga County District Attorney's Office, and
Budelmann are TERMINATED as Defendants in this action;
and the Court further
ORDERS that Defendants’ letter motion a portion of the
argument raised in their motion to dismiss (Dkt. No. 15) is
DENIED as moot; and the Court further
ORDERS that the Clerk of the Court shall serve a copy
of this Memorandum-Decision and Order on the parties in
accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2020 WL 1904088
Footnotes
1 As discussed in more detail below, Plaintiff's complaint fails to set forth any facts sufficient to find either
supervisory or municipal liability against any of the named Defendants for any of the listed causes of action.
2 Although the Court is permitting this claim against Defendant Spinelli to survive, the Court has serious
doubts about whether the claim would survive a properly supported motion for summary judgment. If the
Court were to consider the contents of the criminal complaint, supporting affidavit, and Defendant Spinelli's
narrative, the claim would undoubtedly be dismissed. This, however, highlights why the Court believes that
it is inappropriate to rely on the contents of these documents at this stage. Without the benefit of discovery,
Plaintiff has been unable to question the veracity of the statements contained in those documents. That
being said, the criminal complaint and affidavits paint a much less sympathetic picture than the one set out
in Plaintiff's complaint.
3 Throughout his response, Plaintiff repeatedly states that “the Court is respectfully reminded that it may dismiss
a complaint only if it is clear that no relief could be granted under any set of facts that could be proved
consistent with the allegations.” See, e.g., Dkt. No. 10 at 17, 18 (citing Hishon v. King & Spalding, 467 U.S. 69,
73). Further, Plaintiff repeatedly contends that he “has no duty at this stage to prove his case.” Id. These basic
tenets are not in dispute. What Plaintiff fails to appreciate, however, is that a complaint must be supported
by facts specific to his case, not merely broad assertions of the relevant law poorly disguised as facts. For
example, Plaintiff alleges that Defendants engaged in “extreme and outrageous conduct,” but fails to explain
how any of the conduct alleged could possibly be considered extreme and outrageous. Further, Plaintiff
seems to be operating under the assumption that the Court is required to use its imagination to come up
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with a hypothetical set of facts that could have been pled that would render the claims plausible. Iqbal and
Twombly, however, place no such burden on the Court. Rather, it is incumbent on the plaintiff to set forth the
necessary facts specific to his or her case to render the asserted claims plausible.
4 As a result of this Memorandum-Decision and Order, the only remaining claim is Plaintiff's false arrest claim
against Defendant Spinelli.
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King v. New York State, Not Reported in Fed. Supp. (2023)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 5625440
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Cecil Roy KING, Plaintiff,
v.
NEW YORK STATE, James Francis Mathews [sic],
William B. Rebolini, Howard Heckman, Defendants.
23-CV-3421(GRB)(ST)
|
Signed August 31, 2023
Attorneys and Law Firms
Cecil Roy King, Coram, NY, Pro Se.
Lori L. Pack, Office of the New York State Attorney General,
Hauppauge, NY, for Defendants New York State, James
Francis Mathews, William B. Rebolini.
ORDER
GARY R. BROWN, United States District Judge:
*1 Before the Court is the fee paid pro se complaint of Cecil
Roy King (“Plaintiff”) brought pursuant to 42 U.S.C. § 1983
against New York State (“NYS”) and three NYS judges: Hon.
James Francis Matthews (“Judge Matthews”), Hon. William
B. Rebolini (“Judge Rebolini”), and Hon. Howard Heckman
(“Judge Heckman” and collectively, “Defendants”). See
Docket Entry “DE” 1; Receipt No. 200001582. Upon initial
review of Plaintiff's complaint and Defendants’ letter motion
requesting a pre-motion conference in anticipation of filing
amotion to dismiss the complaint (DE 5), the Court ordered
Plaintiff to show cause within thirty days why the claims set
forth in the complaint should not be dismissed for lack of
subject matter jurisdiction. (DE 7.) Plaintiff has responded
by filing a “Response to Order to Show Cause & Temporary
Restraining Order.” 1 (DE 8.)
For the reasons that follow, the Court lacks subject matter
jurisdiction to adjudicate Plaintiff's claims. Accordingly, the
complaint is dismissed without prejudice pursuant to Federal
Rule of civil Procedure 12(h)(3). Given the dismissal of the
complaint, the request for a restraining order is denied.
BACKGROUND
1. Summary of the Complaint
Plaintiff's complaint is brought against NYS and three state
judges arising from an underlying state mortgage foreclosure
action and subsequent eviction proceedings. See DE 1. The
brief complaint is submitted on the Court's form for civil
rights actions brought pursuant to Section 1983 and has
an additional 169 pages of attachments. 2 Id. According to
the complaint, Defendants violated Plaintiff's civil rights by
depriving Plaintiff of property rights without due process of
law. Id. at ¶ II.B. In its entirety, Plaintiff's Statement of Claim
alleges:
Mortgage was illegally assigned to
PHH Mortgage. Original mortgage
was Fleet Bank in 2003. Assigned
to PHH on 12/16/10. Referee's deed
executed 2/14/20. Referee's deed
executed 2/14/20 and sold in a no
due process foreclosure sale. James
Mathew denied plaintiff's motion to
have fair trial 11/2/22. Judge Heckman
signed illegal foreclosure with equal
protection of law. Promissory note was
illegally assigned to PHH Mortgage
on 12/16/10. Referee's deed was
executed without due process denying
the plaintiff equal protection of law
and depriving plaintiff of life, liberty
and property without due process
or no recourse. Plaintiff's property
was sold to Federal National Corp
– not sure when they became the
owner – defendant took Plaintiff to
District Court on 9/28/22 as the owner/
petitioner of the home. PHH Mortgage
and Federal National Mortgage does
not have standing. There is a title
dispute as to who owns the property.
Id. at ¶ III. In the space on the form complaint that calls for
a description of any injuries sustained as a result, Plaintiff
wrote:
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*2 The Plaintiff did not get a
fair and impartial procedure/trial/
hearing in Supreme Court or District
Court. The defendants conspired and
acted with deliberate indifference
to the Constitution and federal
laws when making decisions without
investigating the facts. The defendants
were provided notice that there is a title
dispute. Plaintiff suffered wrongful
eviction, slander, libel and intentional
infliction of emotional distress.
Id. at ¶ IV. For relief
plaintiff requests 20 million dollar
payment on this claim to be divided
among the defendants. The plaintiff
requests the state and district court
judges licenses to practice law
revoked. The judges assets to be
liquidated to pay the judgement in
full. The plaintiff demands complete
control of the state's corporate charter
and to have all records of illegal
assignments, deed and all records to
the plaintiff.
Id. ¶ V.
2. Plaintiff's Response to the Order to Show Cause
By Order to Show Cause dated June 16, 2023, the Court
ordered Plaintiff to show cause why the claims in the
complaint should not be dismissed without prejudice for lack
of subject matter jurisdiction. DE 7. The Court explained that
Eleventh Amendment immunity, absolute judicial immunity,
and the Rooker-Feldman doctrine appeared to divest the
Court of subject matter jurisdiction and set forth the legal
and factual bases for that circumstance. Id. at 5-9. The Court
invited Plaintiff to demonstrate why these doctrines do not bar
adjudication of Plaintiff's claims in this Court and suggested
that Plaintiff consult with the Hofstra Law Pro Se Clinic. Id.
at 9.
Plaintiff's twenty-two page response does not address any
of the issues raised by the Court and, instead, re-alleges the
claims set forth in the complaint and argues the merits thereof.
See DE 8, in toto. The only mention of “immunity” is at
page 14 of Plaintiff's submission where in a single paragraph
asserts that:
The judge has qualified immunity when he/she follows
the constitution and the law. The Tucker Act exposes the
government to liability for certain claims. Specifically,
the Act extended the court's jurisdiction to include claims
for liquidated or unliquidated damages arising from the
Constitution (including takings claims under the Fifth
Amendment), a federal statute or regulation, and claims in
cases not arising in tort. The relevant text of the Act is
codified in 28 U.S.C. §§ 1346(a) and 1491. The Tucker Act
(March 3, 1887, Ch. 359, 24 Stat. 505, 28 U.S.C. § 1491)
is a federal statute of the United States by which the United
States government has waived its sovereign immunity with
respect to lawsuits pertaining to 5th Amendment violations
of due process.
Id. at 14.
LEGAL STANDARDS
Regardless of whether a plaintiff has paid the Court's filing
fee, a district court may sua sponte, that is, on its own, dismiss
a frivolous pro se complaint. Fitzgerald v. First E. Seventh
St. Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000) (per
curiam) (“[D]istrict courts may dismiss a frivolous complaint
sua sponte even when the plaintiff has paid the required filing
fee” because “as courts of first instance, district courts are
especially likely to be exposed to frivolous actions, and thus
have an even greater need for inherent authority to dismiss
such actions quickly in order to preserve scarce judicial
resources.”); Clark v. Schroeder, 847 F. App'x 92, 93 (2d Cir.
2021) (summary order) (“District courts have the inherent
power to dismiss a complaint as frivolous, even when, as
here, the plaintiff has paid the filing fee.”); Hawkins-El III v.
AIG Fed. Sav. Bank, 334 F. App'x 394, 395 (2d Cir. 2009)
(affirming the district court's sua sponte dismissal of fee paid
frivolous complaint).
*3 A claim is “frivolous when either: (1) the factual
contentions are clearly baseless, such as when allegations
are the product of delusion or fantasy; or (2) the claim is
based on an indisputably meritless legal theory.” Livingston v.
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Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998).
In addition, a complaint is frivolous where it seeks relief from
defendants who are immune from suit. Montero v. Travis, 171
F.3d 757, 760 (2d Cir. 1999) (“A complaint will be dismissed
as frivolous when it is clear that the defendants are immune
from suit.”) (internal quotation marks omitted).
Pro se complaints are to be examined with “special
solicitude,” Tracy v. Freshwater, 620 F.3d 90, 102 (2d Cir.
2010), and are to be “interpreted to raise the strongest
arguments they suggest.” Burgos v. Hopkins, 14 F.3d 787,
790 (2d Cir. 1994). However, “threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice,” and district courts “cannot invent
factual allegations” that the plaintiff has not pleaded. Chavis
v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010). A complaint
must contain “sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and
citation omitted). “[A] plaintiff's obligation to provide the
grounds of his entitlement to relief requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do. Factual allegations must be
enough to raise a right to relief above the speculative level....”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
quotations, brackets, and citation omitted).
Notwithstanding the liberal pleading standard afforded pro
se litigants, federal courts are courts of limited jurisdiction
and may not preside over cases if subject matter jurisdiction
is lacking. Lyndonville Sav. Bank & Trust Co. v. Lussier,
211 F.3d 697, 70-01 (2d Cir. 2000). Lack of subject matter
jurisdiction cannot be waived and may be raised at any time
or by the court sua sponte. Id.; see also FED. R. CIV. P. 12(h)
(3)(“Whenever it appears ... that the court lacks jurisdiction
of the subject matter, the court shall dismiss the action.”);
Lance v. Coffman, 549 U.S. 437, 439 (2007) (“Federal courts
must determine that they have jurisdiction before proceeding
to the merits.”). Although pro se complaints are held to
less stringent standards than pleadings drafted by attorneys,
Erickson v. Pardus, 551 U.S. 89 (2007), a pro se plaintiff is not
exempt from “compliance with relevant rules of procedural
and substantive law”, Traguth v. Zuck, 710 F.2d 90, 95 (2d
Cir. 1983), and still must establish that the Court has subject
matter jurisdiction over the action. Ally v. Sukkar, 128 F.
App'x 194, 195 (2d Cir. 2005).
Even where subject matter is established, the Court
may be divested of subject matter jurisdiction in certain
circumstances, such as where the defendant is immune
from suit. See, e.g., Mireles v. Waco, 502 U.S. 9, 11-12
(1991) (federal courts lack subject matter jurisdiction over
claims against judges relating to the exercise of their judicial
functions on immunity grounds); Gollomp v. Spitzer, 568
F.3d 355, 366 (2d Cir. 2009) (“[A]s a general rule, state
governments may not be sued in federal court unless they
have waived their Eleventh Amendment immunity, or unless
Congress has abrogated the states’ Eleventh Amendment
immunity[.]”).
DISCUSSION
I. Eleventh Amendment Immunity
*4 The Eleventh Amendment provides that “[t]he Judicial
power of the United States shall not be construed to extend to
any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or
by Citizens or Subjects of any Foreign State.” U.S. Const.
Amend. XI. The Supreme Court has long held that the
Eleventh Amendment bars suits against a state by one of its
own citizens in federal court. See, e.g., Bd. of Trs. of Univ.
of Alabama v. Garrett, 531 U.S. 356, 363 (2001). Eleventh
Amendment immunity extends to state officials acting in their
official capacities, including state court judges. Thomas v.
Martin-Gibbons, No. 20-3124, 2021 WL 2065892 (2d Cir.
May 24, 2021) (summary order) (affirming dismissal of pro
se Section 1983 claims against the State of New York and a
state court judge in his official capacity based on Eleventh
Amendment immunity).
However, sovereign immunity “is not absolute,” and the
Supreme Court “ha[s] recognized ... two circumstances in
which an individual may sue a State.” Coll. Sav. Bank v.
Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S.
666, 670 (1999). First, “a State may waive its sovereign
immunity by consenting to suit.” Id. Second, “Congress may
authorize such a suit in the exercise of its power to enforce the
Fourteenth Amendment.” Id.; see also Kimel v. Florida Bd. Of
Regents, 528 U.S. 62, 80 (2000). Neither of these exceptions
applies in this case. It is well-established that New York State
has not waived its sovereign immunity from Section 1983
claims. Mamot v. Bd. of Regents, 367 F. App'x 191, 192
(2d Cir. 2010) (summary order). Moreover, Congress did not
abrogate that immunity when it enacted Section 1983. See
Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (1989)
(“Congress, in passing § 1983, had no intention to disturb
the States’ Eleventh Amendment immunity[.]”); Clark v.
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Schroeder, 847 F. App'x 92, 93-94 (2d Cir. 2021) (“Absent
the State's express waiver or a congressional abrogation of
immunity, the Eleventh Amendment renders a state immune
from federal lawsuits brought either by its own citizens or by
citizens of another state.”).
Thus, the Eleventh Amendment precludes Plaintiff's claims
against NYS and the individuals Defendants sued in their
official capacities. See, e.g., Parker v. New York, No. 22-
CV-3170(GRB)(AYS), 2022 WL 2441215, at *3 (E.D.N.Y.
July 1, 2022) (finding New York state has not waived
its Eleventh Amendment immunity and dismissing pro se
plaintiff's Section 1983 claims against New York State).
Plaintiff does not argue otherwise having been given an
opportunity to do so. See DE 8. Accordingly, the Court
lacks subject matter jurisdiction to adjudicate Plaintiff's
Section 1983 claims brought against NYS and the individual
Defendants in their official capacities. Thus, such claims are
dismissed without prejudice pursuant to Federal Rule of Civil
Procedure 12(h)(3). 3
II. Judicial Immunity
Judges have absolute immunity from suit for judicial acts
performed in their judicial capacities. Mireles, 502 U.S.
at 11 (“[J]udicial immunity is an immunity from suit, not
just from the ultimate assessment of damages.”). Indeed,
“judicial acts -- even if they are alleged to have been done
maliciously or corruptly -- are not subject to civil liability.”
Davis v. Gillespie, No. 22-CV-6207, 2023 WL 5002553, at
*5 (E.D.N.Y. Aug. 4, 2023) (citing Stump v. Sparkman, 435
U.S. 349, 355-56 (1978) (finding state court judge absolutely
immune from § 1983 suit where that judge had power to
entertain and act upon motions in an underlying case)). “The
Supreme Court has generally concluded that acts arising
out of, or related to, individual cases before the judge are
considered judicial in nature.” See Brady v. Ostrager, 834 F.
App'x 616, 618 (2d Cir. 2020) (quoting Bliven v. Hunt, 579
F.3d 204, 210 (2d Cir. 2009)). Absolute judicial immunity “is
not overcome by allegations of bad faith or malice,” and a
judge cannot “be deprived of immunity because the action he
took was in error ... or was in excess of his authority.” Mireles,
502 U.S. at 11 (internal quotation marks omitted); Bliven, 579
F.3d at 209.
*5 Here, the challenged conduct of the individual
Defendants occurred during the course of the underlying
state court proceedings and any actions they took in those
cases were judicial acts for which they are afforded absolute
judicial immunity. Accordingly, Plaintiff's claims against the
individual Defendants are dismissed without prejudice for
lack of subject matter jurisdiction pursuant to Federal Rule of
Civil Procedure 12(h)(3). 4
III. State Law Claims
Under 28 U.S.C. § 1367(a), “the district courts shall have
supplemental jurisdiction over all other 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.” However, courts
“may decline to exercise supplemental jurisdiction over a
claim” if “the district court has dismissed all claims over
which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3).
The Supreme Court explained that “in the usual case in which
all federal-law claims are eliminated before trial, the balance
of factors to be considered under the pendent jurisdiction
doctrine -- judicial economy, convenience, fairness, and
comity -- will point toward declining to exercise jurisdiction
over the remaining state-law claims.” Carnegie-Mellon Univ.
v. Cohill, 484 U.S. 343, 350 n.7 (1988).
Here, given the absence of a plausible federal claim, the
interests of judicial economy, convenience, fairness, and
comity weigh in favor of not exercising supplemental
jurisdiction at this time over any state law claims that may
be reasonably construed from the complaint. Accordingly, the
Court declines to exercise supplemental jurisdiction over any
potential state-law claims contained in Plaintiff's complaint
and dismisses any such claims without prejudice.
IV. Leave to Amend
A pro se plaintiff should ordinarily be given the opportunity
“to amend at least once when a liberal reading of the
complaint gives any indication that a valid claim might be
stated.” Shomo v. City of New York, 579 F.3d 176, 183 (2d
Cir. 2009) (internal quotation marks and citation omitted).
However, leave to amend is not required where it would
be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d
Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.
1988). Given that Plaintiff's claims could not be cured with
amendment, leave to amend would be futile and is thus,
denied.
CONCLUSION
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Based on the foregoing, Plaintiff's complaint is dismissed
without prejudice for lack of subject matter jurisdiction
pursuant to Federal Rule of Civil Procedure 12(h)(3).
Given the dismissal of the complaint, Plaintiff's request for
injunctive relief is denied and Defendants’ request for a pre-
motion conference is denied as moot. The Clerk of the Court
shall enter judgment accordingly and mark this case closed.
The Clerk of the Court shall also mail a copy of this Order to
the pro se Plaintiff at the address of record and note service
on the docket.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that
any appeal from this Order would not be taken in good
faith and therefore in forma pauperis status is denied for the
purpose of any appeal. See Coppedge v. United States, 369
U.S. 438, 444-45 (1962).
*6 SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2023 WL 5625440
Footnotes
1 Plaintiff also seeks an order “restrain[ing] the [D]efendants from any further state court action until the federal
court dispute is adjudicated. Plaintiff also requests the court to vacate any state court judgments or orders
in the interest of justice,” (DE 8 at 21.)
2 The exhibits are largely excerpts from law treatises, copies of cases, and state and federal statutory laws,
well as several reports prepared on Plaintiff's behalf concerning the mortgage at issue in the underlying state
case. See DE 1-1.
3 Plaintiff's Section 1983 claims against NYS are frivolous for the additional reason that New York State is not
a “person” within the meaning of Section 1983. Will v. Mich. Dep't of State Police, 491 U.S. 58 (1989) (State
is not a “person” for the purpose of § 1983 claims); Zuckerman v. Appellate Div., Second Dep't Supreme
Court, 421 F.2d 625, 626 (2d Cir. 1970) (Court not a “person” within the meaning of 42 U.S.C. § 1983).
4 Given that the Eleventh Amendment and judicial immunity divest this Court of subject matter jurisdiction, the
Court need not address the application of the Rooker-Feldman doctrine and declines to do so.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Kirkland v. New York State Division of Parole, Not Reported in Fed. Supp. (2020)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2020 WL 6729119
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Tarence KIRKLAND, Plaintiff,
v.
NEW YORK STATE DIVISION OF PAROLE; Ms.
Pagan, Parole Officer; Betty Kyles; Janet Difiore,
District Attorney; James Bavero, District Attorney;
Anne E. Minihan, Judge; Allan Focarile, Lawyer
Legal Aid Society of Westchester, Defendants.
20-CV-8606 (LLS)
|
Signed 11/13/2020
Attorneys and Law Firms
Tarence Kirkland, Yonkers, NY, pro se.
ORDER OF DISMISSAL
LOUIS L. STANTON, United States District Judge:
*1 Plaintiff, appearing pro se, brings this action invoking
the Court's federal question jurisdiction. Plaintiff sues the
judge and attorneys involved in his 2017 Westchester
County conviction, for which he is currently on post-release
supervision. He also sues parole officers and the New York
State Division of Parole. Plaintiff seeks $10 million in
damages.
By order dated October 30, 2020, the Court granted Plaintiff's
request to proceed without prepayment of fees, that is, in
forma pauperis. For the following reasons, the complaint is
dismissed with leave to replead certain claims within thirty
days of the date of this order.
STANDARD OF REVIEW
The Court must dismiss an in forma pauperis complaint, or
any portion of the complaint, that is frivolous or malicious,
fails to state a claim on which relief may be granted, or
seeks monetary relief from a defendant who is immune from
such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v.
Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998).
The Court must also dismiss a complaint when the Court lacks
subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). While
the law mandates dismissal on any of these grounds, the Court
is obliged to construe pro se pleadings liberally, Harris v.
Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to
raise the “strongest [claims] that they suggest,” Triestman v.
Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)
(internal quotation marks and citations omitted) (emphasis in
original). But the “special solicitude” in pro se cases, id. at
475 (citation omitted), has its limits – to state a claim, pro se
pleadings still must comply with Rule 8 of the Federal Rules
of Civil Procedure, which requires a complaint to make a short
and plain statement showing that the pleader is entitled to
relief.
BACKGROUND
In 2015, Plaintiff Tarence Kirkland was arrested in Yonkers
on charges of having sold cocaine to an undercover police
officer. 1 The Honorable Anne Minihan presided over
Plaintiff's criminal proceedings in the County Court of the
State of New York, Westchester County. On July 13, 2017, a
jury convicted Plaintiff of two counts of sale of narcotics in
the third degree.
Plaintiff attaches to the complaint a transcript of his
September 1, 2017 sentencing hearing, in which defense
counsel argued that: (1) at the time of Plaintiff's first felony
conviction in 2002 for statutory rape, it was not classified as a
violent crime, though the conviction was later reclassified as
such; and (2) no second felony offender enhancement should
apply to the 2017 conviction because more than ten years had
passed since Plaintiff's 2002 felony conviction. The attorneys
also debated whether tolling applied (rendering Plaintiff's
prior conviction within the 10-year period for purposes of the
sentencing enhancement), which turned on whether Plaintiff
had been present at his final parole revocation hearing.
*2 Judge Minihan held that, for purposes of the sentencing
enhancement, the relevant issue was whether Plaintiff had
a prior conviction that qualified at the time of his current
sentencing as a violent felony. She also concluded that
the minutes of the parole revocation hearing reflected that
Plaintiff was present and was represented by counsel at his
final parole revocation hearing; thus, she concluded that
because of tolling, his prior felony was deemed to have been
within the last ten years, and he qualified for the second felony
offender enhancement. 2
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Assistant District Attorney (ADA) James Bavero noted
at the sentencing hearing that the maximum sentence for
each count was 15 years’ imprisonment, and that if the
sentences were imposed consecutively, Plaintiff potentially
faced 30 years’ incarceration. However, ADA Bavero did not
recommend a thirty-year sentence, though he did recommend
a sentence “in double digits.” On September 1, 2017, Judge
Minihan sentenced Plaintiff to six years’ incarceration on
each count, to run concurrently, and one and a half years’ post-
release supervision (PRS). Plaintiff filed various challenges
to the judgment of conviction and sentence, 3 and he filed
grievances against the presiding judge, his attorney, and the
district attorney, none of which were successful. (Id. at 30,
37.) On October 8, 2020, Plaintiff was released to PRS.
DISCUSSION
A. Challenge to Conviction
Many of Plaintiff's allegations challenge the validity of his
2017 Westchester County conviction. He argues, among other
things, that he should not have been sentenced as a second
felony offender.
A litigant may not challenge the validity of his conviction or
obtain release from custody in a § 1983 action. Instead, the
proper vehicle for challenging a state conviction in federal
court is a petition for a writ of habeas corpus under 28 U.S.C.
§ 2254. See Wilkinson v. Dotson, 544 U.S. 74, 78-82 (2005)
(citing Preiser v. Rodriguez, 411 U.S. 475 (1973)) (noting that
writ of habeas corpus is sole remedy for prisoner seeking to
challenge the fact or duration of his confinement). A state
prisoner may not circumvent the exhaustion requirement for
habeas corpus relief by seeking release from custody in a civil
rights action. Preiser, 411 U.S. at 489-90.
A state prisoner generally exhausts his claims in the state
courts by pursuing “one complete round of the State's
established appellate review process,” O'Sullivan v. Boerckel,
526 U.S. 838, 845 (1999). 4 Plaintiff's application does
not demonstrate that he exhausted his state remedies in
accordance with 28 U.S.C. § 2254(b) and (c). 5 See Coleman
v. Thompson, 501 U.S. 722, 731 (1991). Because Plaintiff
seeks only damages in this civil rights complaint, the Court
does not recharacterize this application as a § 2254 petition.
*3 Plaintiff also makes allegations attacking the validity
of his 2002 conviction, for which he has fully served his
sentence. See Maleng v. Cook, 490 U.S. 488, 491-92 (1989)
(holding that habeas petitioner “must be ‘in custody’ under
the conviction or sentence under attack at the time his petition
is filed” and that courts normally lack jurisdiction over
petitions challenging fully expired sentences). The Court also
declines to recharacterize this civil rights action for damages
under § 1983 as a § 2254 petition challenging Plaintiff's
expired 2002 conviction. Nothing in this order prevents
Plaintiff from bringing a petition for a writ of habeas corpus
under 28 U.S.C. § 2254 that complies with the standards set
forward herein. 6
B. Claims against Legal Aid Attorney
A claim for relief under § 1983 must allege facts showing
that each defendant acted under the color of a state
“statute, ordinance, regulation, custom or usage.” 42 U.S.C.
§ 1983. Private parties are therefore not generally liable
under the statute. Sykes v. Bank of America, 723 F.3d
399, 406 (2d Cir. 2013) (citing Brentwood Acad. v. Tenn.
Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001));
see also Ciambriello v. Cnty. of Nassau, 292 F.3d 307,
323 (2d Cir. 2002) (“[T]he United States Constitution
regulates only the Government, not private parties.”). Absent
special circumstances suggesting concerted action between
an attorney and a state representative, see Nicholas v. Goord,
430 F.3d 652, 656 n.7 (2d Cir. 2005) (citing Adickes v. S.H.
Kress & Co., 398 U.S. 144, 152 (1970)), the representation of
a defendant by private counsel in state criminal proceedings
does not constitute the degree of state involvement or
interference necessary to establish a claim under § 1983,
regardless of whether that attorney is privately retained, court-
appointed, or employed as a public defender. See Bourdon v.
Loughren, 386 F.3d 88, 90 (2d Cir. 2004) (citing Polk Cnty. v.
Dodson, 454 U.S. 312, 324-25 (1981)); see also Schnabel v.
Abramson, 232 F.3d 83, 87 (2d Cir. 2000) (holding that legal
aid organization ordinarily is not a state actor for purposes of
§ 1983).
Plaintiff alleges that Allan Focarile, a Legal Aid attorney,
“said [Plaintiff] never should have [gone] to jail” for his 2002
conviction. (ECF 2 at 5). Plaintiff also attaches a February
4, 2016 memorandum from DOCCS to Defendant Focarile
detailing the calculation of Plaintiff's jail time credits. (Id. at
76.) Because Defendant Focarile is a private party who does
not qualify as a state actor, Plaintiff has not stated a claim
against Defendant Focarile under § 1983.
C. Prosecutorial Immunity
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Prosecutors are immune from civil suits for damages for
acts committed within the scope of their official duties
where the challenged activities are “intimately associated
with the judicial phase of the criminal process.” Simon v.
City of New York, 727 F.3d 167, 171 (2d Cir. 2013) (quoting
Imbler v. Pachtman, 424 U.S. 409, 430 (1976)); see also
Buckley v. Fitzsimmons, 509 U.S. 259 (1993) (holding that
absolute immunity is analyzed under “functional approach”
that “looks to the nature of the function performed, not
the identity of the actor who performed it”). In addition,
prosecutors are absolutely immune from suit for acts that may
be administrative obligations but are “directly connected with
the conduct of a trial.” Van de Kamp v. Goldstein, 555 U.S.
335, 344 (2009).
*4 Here, Plaintiff's claims against District Attorney James
Bavero are based on actions within the scope of his official
duties and associated with the conduct of a trial. Plaintiff's
claims against Defendant Bavero are therefore dismissed
because they seek monetary relief against a defendant who is
immune from suit. 28 U.S.C. § 1915(e)(2)(b)(iii). Moreover, a
claim against a prosecutor is frivolous if it arises from conduct
that is “intimately associated with the judicial phase of the
criminal process.” Collazo v. Pagano, 656 F. 3d 131, 134
(2d Cir. 2011). These claims are therefore also dismissed as
frivolous.
D. Judicial Immunity
Judges are absolutely immune from suit for damages
for any actions taken within the scope of their judicial
responsibilities. Mireles v. Waco, 502 U.S. 9, 11 (1991).
Generally, “acts arising out of, or related to, individual cases
before the judge are considered judicial in nature.” Bliven v.
Hunt, 579 F.3d 204, 210 (2d Cir. 2009). “Even allegations
of bad faith or malice cannot overcome judicial immunity.”
Id. (citations omitted). This is because “[w]ithout insulation
from liability, judges would be subject to harassment and
intimidation....” Young v. Selsky, 41 F.3d 47, 51 (2d Cir. 1994).
Plaintiff sues Judge Anne Minihan for her judicial actions
while presiding over his criminal proceedings. He also sues
Supreme Court Justice Janet DiFiore in connection with his
April 11, 2013 hearing, at which she determined that he
should be classified as a Level 1 sex offender. (ECF 2 at 29).
Plaintiff alleges that Justice DiFiore “falsified documents” in
connection with these proceedings. (Id. at 6.) Plaintiff's claims
must be dismissed because Judge Anne Minihan and Judge
Janet DiFiore have absolute immunity from suit for claims
arising out of, or related to, individual cases before them. See
28 U.S.C. § 1915(e)(2)(b)(iii).
E. New York State Division of Parole
“[A]s a general rule, state governments may not be sued
in federal court unless they have waived their Eleventh
Amendment immunity, or unless Congress has abrogated
the states’ Eleventh Amendment immunity....” Gollomp v.
Spitzer, 568 F.3d 355, 366 (2d Cir. 2009). “The immunity
recognized by the Eleventh Amendment extends beyond the
states themselves to state agents and state instrumentalities
that are, effectively, arms of a state.” Id. New York has not
waived its Eleventh Amendment immunity to suit in federal
court, and Congress did not abrogate the states’ immunity
in enacting 42 U.S.C. § 1983. See Trotman v. Palisades
Interstate Park Comm'n, 557 F.2d 35, 40 (2d Cir. 1977).
Plaintiff's § 1983 claims against the New York State Division
of Parole are therefore barred by the Eleventh Amendment
and are dismissed.
F. Parole Officers
Plaintiff names Parole Officers Pagan and Betty Kyles as
defendants in the caption of the complaint but fails to mention
them in the body of the complaint. 7 First, as parole officers
employed by the State of New York, the Eleventh Amendment
bars any claims for damages against these defendants in their
official capacities. See Gollomp, 568 F.3d at 366 (holding that
Eleventh Amendment applies to claims against state agents).
Moreover, to state a claim against an individual under §
1983, a plaintiff must allege facts showing the defendant's
direct and personal involvement in the alleged constitutional
deprivation. See Spavone v. N.Y. State Dep't of Corr. Serv.,
719 F.3d 127, 135 (2d Cir. 2013) (citing Colon v. Coughlin, 58
F.3d 865, 873 (2d Cir. 1995)). Because Plaintiff does not plead
any facts about what Defendants Pagan or Kyles personally
did or failed to do that violated his rights, Plaintiff also fails
to state a claim against these defendants in their individual
capacities. The Court therefore dismisses Plaintiff's claims
against Defendants Pagan and Kyles.
*5 The Court further notes that Plaintiff seeks damages in
this action for having been “sent to state prison.” (ECF 2
at 6). “[W]hen a state prisoner seeks damages in a § 1983
suit, the district court must consider whether a judgment in
favor of the plaintiff would necessarily imply the invalidity
of his conviction or sentence; if it would, the complaint
must be dismissed unless the plaintiff can demonstrate that
the conviction or sentence has already been invalidated.”
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Heck v. Humphrey, 512 U.S. 477, 487 (1994). A § 1983
plaintiff cannot recover for the “injury” of being convicted
and imprisoned until his conviction has been overturned. Id. at
487. Thus, if Plaintiff's claims against Defendants Pagan and
Kyles would be necessarily inconsistent with Plaintiff's still
outstanding conviction, or if Plaintiff sues Defendants Pagan
and Kyles for damages based on the injury of his conviction,
it would be futile for him to replead such claims.
G. Leave to Amend
Generally, a court should not dismiss a pro se complaint
“without granting leave to amend at least once when a liberal
reading of the complaint gives any indication that a valid
claim might be stated.” Dolan v. Connolly, 794 F.3d 290, 295
(2d Cir. 2015) (quoting Chavis v. Chappius, 618 F.3d 162, 170
(2d Cir. 2010) (internal quotation marks omitted)). But a court
has inherent power to dismiss without leave to amend where
amendment would be futile. Hill v. Curcione, 657 F. 3d 116,
123-24 (2d Cir. 2011).
Here, it would be futile for Plaintiff to replead his claims
against the defendants entitled to immunity from suit–that
is, ADA Bavero, Judge DiFiore, Judge Minihan, and the
New York State Division of Parole. It would also be futile
for Plaintiff to replead his § 1983 claims against Defendant
Focarile because, as an attorney, he does not qualify as a
state actor. Because Plaintiff does not give any facts about his
claims against Parole Officers Pagan and Kyles, it is unclear
if he may be able to state some claim against them under §
1983, and the Court therefore grants Plaintiff 30 days’ leave
to replead his claims against them.
In his amended complaint, Plaintiff must tell the Court: who
violated his federally protected rights; what facts show that
defendants violated his federally protected rights; when such
violation occurred; where such violation occurred; and why
he is entitled to relief. If Plaintiff fails to amend his complaint
within 30 days, the Court will enter judgment consistent with
this order.
CONCLUSION
The Clerk of Court is directed to mail a copy of this order to
Plaintiff and note service on the docket. Plaintiff's complaint,
filed in forma pauperis under 28 U.S.C. § 1915(a)(1), is
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), (iii), with
30 days’ leave to replead.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2020 WL 6729119
Footnotes
1 This description is taken from the allegations in the complaint and the attached exhibits.
2 Plaintiff attaches to the complaint his letters to the New York City Police Department's Fourth Precinct stating
that his traffic stop on September 30, 2015, was the result of racial profiling or retaliation for his having filed
a prior racial profiling complaint against an officer of the Fourth Precinct. (ECF 2-1 at 6.) But Plaintiff does
not appear to sue any defendant in connection with this traffic stop.
3 Plaintiff filed a notice of appeal on September 18, 2017, which was opened as People v. Kirkland, Appellate
Division No. 17-CV-10699 (2d Dep't 2017). On April 27, 2018, the Second Department enlarged the time
for him to perfect his appeal (ECF 2-1 at 40), but it is unclear if he did so. (Id. at 20.) In July 2018, Plaintiff
filed a § 440.10 motion in the Westchester County Court, raising claims of ineffective assistance of counsel,
prosecutorial misconduct, and an unfair trial (id. at 17-23), but the County Court, on November 8, 2018,
denied the § 440.10 motion. (Id. at 24.) On June 6, 2019, the County Court denied Plaintiff's § 440.20 motion,
rejecting Plaintiff's claims that he was improperly sentenced as a second felony offender, that his counsel
was ineffective, and that the evidence at trial was insufficient. (Id. at 27.)
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4 If Petitioner has failed to complete one round of state court review and can no longer do so, he must show
cause and prejudice for the failure to exhaust state court remedies. Coleman, 501 U.S. at 750 (holding that
a court may excuse exhaustion if petitioner demonstrates: (1) “cause for the default and actual prejudice
as a result of the alleged violation of federal law,” or (2) “that failure to consider the claims will result in a
fundamental miscarriage of justice”).
5 Moreover, a § 2254 petition generally must be filed within one year from the latest of four benchmark dates,
that is, the date when: (1) the judgment of conviction becomes final; (2) a government-created impediment to
making such a motion is removed; (3) the constitutional right asserted is initially recognized by the Supreme
Court, if it has been made retroactively available to cases on collateral review; or (4) the facts supporting the
claim(s) could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d).
6 The Court notes that although Plaintiff is not in physical custody for his 2017 Westchester County conviction,
a litigant subject to PRS can be deemed in custody for purposes of a § 2254 habeas petition challenging that
conviction. See Earley v. Murray, 451 F.3d 71, 75 (2d Cir. 2006) (holding that post-release supervision is a
part of a criminal defendant's sentence).
7 According to public records of the New York State Department of Corrections and Community Supervision,
Plaintiff's current parole officers are Parole Officer S. Gomez-Coz and Senior Parole Officer T. Johnson.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Melendez v. City of New York, Not Reported in Fed. Supp. (2017)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2017 WL 4221083
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Jason MELENDEZ, Plaintiff,
v.
CITY OF NEW YORK, et al., Defendant.
No. 16-cv-1497 (RJS)
|
Signed 09/20/2017
Attorneys and Law Firms
Gregory Gladstone Smith, Gregory Smith & Associates, New
York, NY, for Plaintiff.
Curt Peter Beck, NYC Law Department, Office of the
Corporation Counsel, Suvarna S. Sampale, Morgan Chmiel
McKinney, New York City Law Department, Cynthia Marie
Sittnick, District Attorney, New York County as Special
Assistant Corp., New York, NY, for Defendant.
OPINION AND ORDER
RICHARD J. SULLIVAN, UNITED STATES DISTRICT
JUDGE
*1 Plaintiff Jason Melendez brings this action against the
City of New York (the “City”) and former and current
employees of the City's Police Department (“NYPD”)
and of the New York County District Attorney's Office
(“DANY”), alleging claims for malicious prosecution, racial
discrimination, intentional infliction of emotional distress,
and assorted constitutional violations. Now before the
Court is Defendants' motion to dismiss the First Amended
Complaint (Doc. No. 12 (“Amended Complaint” or “FAC”))
pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc.
No. 56.) For the reasons set forth below, Defendants' motion
is granted.
I. BACKGROUND
A. Facts 1
Plaintiff, a white Hispanic man, alleges that on the night of
June 10, 2010 he was returning home after having drinks with
co-workers at the antique shipping company where he worked
as a shipping clerk. (FAC ¶¶ 8, 21 33.) While waiting for an
uptown express subway at Grand Central Terminal, Plaintiff
was allegedly approached by two men—Jovan Haulsey and
Jordan Lake (the “Assailants”)—who attempted to rob him of
his smart phone. (Id. ¶ 21.) A fight ensued between Plaintiff
and the Assailants, both of whom are black men. (Id. ¶ 22.) As
the fight progressed, Plaintiff removed his employer-issued
box cutter from his pocket to defend himself. (Id. ¶ 23.)
By the end of the fight—which was partially captured on
video and audio recordings—Plaintiff was overpowered, lost
consciousness, and suffered a severe facial laceration; one or
both of the Assailants also sustained slashing wounds. (Id.
¶¶ 23, 24.) When Plaintiff regained consciousness, he was
taken to the hospital, where he was interviewed by Defendants
Lieutenant Keith Singer and Detective Alexander Sepulveda
of the NYPD. (Id. ¶¶ 25, 31, 33.) Singer later drafted a report,
memorializing Plaintiff's account of the Grand Central fight;
in his report Singer expressed doubt about Plaintiff's claim
that the fight began with an attempted robbery. (Id. ¶ 35.)
Meanwhile, the Assailants, who were also hospitalized, were
arrested for their role in the assault. (Id. ¶ 26.) While Lake
took responsibility for slashing Plaintiff's face, both Lake and
Haulsey denied that they had tried to steal Plaintiff's phone
and maintained that they acted in self-defense after Plaintiff
initiated the conflict and pulled out a knife. (Id.) Although
the Assailants were subsequently indicted and eventually
pleaded guilty to assault and attempted assault charges (id.
¶ 54), Defendant Assistant District Attorney (“ADA”) Judith
Lewis later convened a New York County Grand Jury to
assess whether Plaintiff should be charged with assault and
attempted assault based on the cross-complaint made by the
Assailants. (Id. ¶¶ 29, 55.) On August 13, 2010, the grand
jury did in fact indict Plaintiff and a warrant was issued for
Plaintiff's arrest, though it was never served. (Id. ¶ 55, 56.)
Indeed, Plaintiff alleges that he never received any notice
whatsoever from DANY or the NYPD that he had been
indicted and that a warrant had been issued for his arrest. (Id.
¶ 79.)
*2 Nevertheless, in the ensuing months and years, Plaintiff
endured several brief detentions by law enforcement as a
result of his arrest warrant. For example, in January 2011,
police officers conducted a traffic stop and informed Plaintiff
that his name was associated with an arrest warrant, though
they provided no additional information. (Id. ¶ 59.) Eight
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months later, in September 2011, police officers searched
Plaintiff's backpack, seized box cutters, and arrested Plaintiff,
and although Plaintiff pleaded guilty to disorderly conduct
and was released on his own recognizance, he was detained
an additional day as a result of the assault warrant. (Id. ¶¶ 60–
64.) Similarly, when Plaintiff returned to New York City from
an international trip in March 2013, Transportation Security
Administration officers at the airport detained Plaintiff for
more than ninety minutes as a result of the outstanding arrest
warrant. (Id. ¶ 67.) Finally, on June 27, 2013, Plaintiff was
stopped by a New York State Trooper, who informed Plaintiff
that he was the subject of an outstanding arrest warrant and
detained Plaintiff for several hours at the state police barracks.
(Id. ¶ 69.) Plaintiff was thereafter transported to the Bronx,
where he was held overnight before finally being arraigned
in New York State Supreme Court, New York County on the
arrest warrant for the alleged Grand Central assault. (Id. ¶
70.) Plaintiff was detained for five days before he was finally
released on his own recognizance on July 2, 2013. (Id. ¶¶
76, 77.) Thereafter, Plaintiff was forced to make numerous
court appearances in his case before the indictment was finally
dismissed on September 18, 2014 as a result of a speedy trial
violation. (Id. ¶¶ 76, 78; see also N.Y. Crim. Proc. Law §
30.30.)
B. Procedural History
Plaintiff commenced this action by filing an initial complaint
on February 26, 2016 (Doc. No. 1.) In April, Plaintiff
amended his complaint, asserting claims for malicious
prosecution and other constitutional violations pursuant to 42
U.S.C. § 1983, 2 racial discrimination pursuant to 42 U.S.C.
§ 1981, conspiracy to deprive Plaintiff of constitutional rights
pursuant to 42 U.S.C. §§ 1983 and 1985, and malicious
prosecution and intentional infliction of emotional distress
under New York state law. The Amended Complaint names
NYPD Lieutenant Singer and Officer Sepulveda along with
their supervisors, Chief Raymond Diaz and Captain Donohue
(collectively, the “NYPD Defendants”), and Assistant District
Attorneys Lewis, Alyssa Gunther, and William Mahoney,
the latter two overseeing the prosecution of Plaintiff's case
in New York County after Lewis procured the indictment
(collectively, the “DANY Defendants,” and with the NYPD
Defendants, the “Individual Defendants”). Plaintiff also
asserts claims against the City for failure to supervise the
NYPD and DANY pursuant to 42 U.S.C. § 1983 and Monell
v. Department of Social Services of the City of New York, 436
U.S. 658 (1978), and for respondeat superior under New York
state law. Among other things, Plaintiff argues that he was
denied notice and an opportunity to testify before the grand
jury before it returned an indictment, which resulted in his
multiple detentions and his wrongful prosecution.
On June 22, 2016, the DANY Defendants submitted a letter
motion arguing that the claims against them should be
dismissed because their conduct was protected by absolute
prosecutorial immunity. (Doc. No. 42; see also Doc. No.
52.) On September 9, 2016, the NYPD Defendants and the
City filed their motion to dismiss pursuant to Rule 12(b)(6),
arguing that Plaintiff had failed to state a claim with regard to
every claim for relief. (Doc. Nos. 56, 57.) Plaintiff responded
to both sets of motions on September 28, 2016 (Doc. Nos. 58,
59), and the motions were fully briefed as of October 11, 2016
(See Doc. No. 64).
II. LEGAL STANDARD
To survive a motion to dismiss pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure, a complaint must
“provide the grounds upon which [the] claim rests.” ATSI
Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.
2007); see also Fed. R. Civ. P. 8(a)(2) (“A pleading that states
a claim for relief must contain ... a short and plain statement
of the claim showing that the pleader is entitled to relief....”).
To meet this standard, plaintiffs must allege “enough facts
to state a claim to relief 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). In reviewing a Rule
12(b)(6) motion to dismiss, a court must accept as true all
factual allegations in the complaint and draw all reasonable
inferences in favor of the plaintiff. ATSI Commc'ns, 493
F.3d at 98. However, that tenet “is inapplicable to legal
conclusions.” Iqbal, 556 U.S. at 678. Thus, a pleading that
offers only “labels and conclusions” or “a formulaic recitation
of the elements of a cause of action will not do.” Twombly,
550 U.S. at 555. If the plaintiff “ha[s] not nudged [its] claims
across the line from conceivable to plausible, [its] complaint
must be dismissed.” Id. at 570.
III. DISCUSSION
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A. Federal Claims
*3 Plaintiff asserts federal claims for constitutional
violations pursuant to Section 1983, racial discrimination
pursuant to Section 1981, conspiracy to commit constitutional
violations pursuant to Sections 1983 and 1985, and Monell
claims for municipal liability. Each of these claims, with
the exception of the Monell claims, is asserted against
all Defendants. The Court considers each claim in turn,
beginning with the DANY Defendants, proceeding to the
NYPD Defendants, and concluding with the municipal
liability claims against the City.
1. DANY Defendants
Despite bringing suit against the three DANY ADAs,
Plaintiff concedes that the DANY Defendants are shielded
by absolute immunity because all alleged actions were taken
in furtherance of their core prosecutorial advocacy function.
(Doc. No. 59 at 24.) See also Buckley v. Fitzsimmons, 509
U.S. 259, 273 (1993) (“[A]cts undertaken by a prosecutor in
preparing for the initiation of judicial proceedings or for trial,
and which occur in the course of his role as an advocate for the
State, are entitled to the protections of absolute immunity.”);
Warney v. Monroe Cty., 587 F.3d 113, 120–22 (2d Cir. 2009).
As a result, Plaintiff has withdrawn “the complaint against
all prosecutors.” (Doc. No. 59 at 24.) Accordingly, the claims
asserted against the DANY Defendants are dismissed.
2. NYPD Defendants
a. Section 1983 Claims
“To state a claim under [Section] 1983, a plaintiff must allege
that (1) the challenged conduct was attributable at least in part
to a person who was acting under color of state law and (2)
the conduct deprived the plaintiff of a right guaranteed under
the Constitution of the United States.” Snider v. Dylag, 188
F.3d 51, 53 (2d Cir. 1999). It is “well-settled” Second Circuit
law “that personal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of
damages under § 1983.” Spavone v. N.Y. State Dept. of Corr.
Servs., 719 F.3d 127, 135 (2d Cir. 2013) (quoting Colon v.
Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)). Furthermore,
Section 1983 does not countenance respondeat superior or
supervisory liability. See Iqbal, 556 U.S. at 676. As noted
above, the unlawful conduct alleged here includes a claim
for malicious prosecution as well as an undefined set of
claims made with reference to five different constitutional
amendments. Such claims, whether brought through Section
1983 or state law, are analyzed pursuant to the same standards
as the applicable state law tort. See Nzegwu v. Friedman, 605
Fed.Appx. 27, 29 (2d Cir. 2015); Jocks v. Tavernier, 316 F.3d
128, 134 (2d Cir. 2003). The Court will address each in turn.
i. Malicious Prosecution
For Plaintiff to prevail on his Section 1983 malicious
prosecution claim, he “must show a violation of his rights
under the Fourth Amendment ... and must establish the
elements of a malicious prosecution claim under state law.”
Manganiello v. City of New York, 612 F.3d 149, 161 (2d
Cir. 2010) (citations omitted). “To establish a malicious
prosecution claim under New York law, a plaintiff must
prove ‘(1) the initiation or continuation of a criminal
proceeding against plaintiff; (2) termination of the proceeding
in plaintiff's favor; (3) lack of probable cause for commencing
the proceeding; and (4) actual malice as a motivation for
defendant's actions.’ ” Id. (quoting Murphy v. Lynn, 118 F.3d
938, 947 (2d Cir. 1997)); see also Broughton v. State of New
York, 37 N.Y.2d 451, 457 (1975).
The NYPD Defendants move to dismiss the malicious
prosecution claim, arguing that Plaintiff's own pleadings
demonstrate that (1) Defendants were not involved in the
initiation or continuation of criminal proceedings against
Plaintiff; (2) the prosecution was supported by probable
cause, and (3) Defendants did not act with malice. Because
Plaintiff has failed to plead that any of the NYPD Defendants
were involved in the initiation or continuation of criminal
proceedings against Plaintiff, the Court need not consider
Defendants' second and third arguments.
*4 While “New York law imposes a presumption that
a prosecutor exercises his own independent judgment in
deciding to prosecute a criminal defendant,” Gilman v. Marsh
& McLennan Cos., 868 F. Supp. 2d 118, 128 (S.D.N.Y.
2012), police officers can nevertheless be held responsible
for “ ‘initiat[ing]’ prosecution by filing charges or other
accusatory instruments,” Cameron v. City of New York, 598
F.3d 50, 63 (2d Cir. 2010). A police officer may also be
responsible for initiating or continuing a prosecution where
facts indicate that the officer was heavily involved in the
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prosecution by, for example, “actively elicit[ing] inculpatory
statements” from potentially incredible witnesses, staying in
close and regular contact with the prosecutor responsible
for the case, and signing a complaint responsible for the
prosecution. See Manganiello, 612 F.3d at 163. Here, Plaintiff
fails to make allegations that could satisfy this standard.
First, Plaintiff explicitly pleads that it was ADA Lewis, not
one of the NYPD Defendants, who initiated his prosecution
by obtaining a grand jury indictment. (See FAC ¶ 55.)
Second, Plaintiff alleges only minor involvement by the
NYPD Defendants in the events leading to his prosecution.
Specifically, Plaintiff alleges that Defendants Singer and
Sepulveda were responsible for interviewing Plaintiff in the
hospital, recording his statement, and memorializing both in
a police report (see id. ¶¶ 31, 33), which allegedly questioned
Plaintiff's account of the events at Grand Central. (Id. ¶¶
35, 36.) The Amended Complaint is even thinner in its
treatment of Diaz and Donohue. In fact, Plaintiff's only
allegation against Diaz is that he reviewed and approved
Singer's report (id. ¶ 37), and the Amended Complaint makes
no mention of Donohue's involvement whatsoever. Clearly,
these allegations—involving the taking of a statement and
the drafting of a police report—are insufficient to constitute
the requisite personal involvement of Defendants in initiating
Plaintiff's prosecution; indeed, there is no allegation that
any of the NYPD Defendants were involved in the grand
jury proceedings or played a role in executing Plaintiff's
arrest. See, e.g., Levy v. City of New York, 935 F. Supp.
2d 575, 588–89 (E.D.N.Y. 2013) (stating that even police
officer involvement in an arrest, without more, is insufficient
for a malicious prosecution claim); Brandon v. City of New
York, 705 F. Supp. 2d 261, 274–75 (S.D.N.Y. 2010) (holding
that defendants lacked “requisite personal involvement to be
liable” where they were not involved “in any of the post-arrest
conduct that led to [plaintiff's] prosecution”).
Accordingly, because Plaintiff has not alleged that the
NYPD Defendants initiated Plaintiff's prosecution, the Court
dismisses the malicious prosecution claim against them.
ii. Free Speech Claim
Plaintiff next asserts that Defendants violated his First
Amendment right to free speech, though it is difficult to
discern the precise contours of this claim. Plaintiff, who is
represented by counsel, appears to be taking the position
that the DANY Defendants violated his First Amendment
rights by failing to give him an opportunity to testify before
the grand jury. But while New York law does provide that
individuals who face criminal charges have the right to testify
before the grand jury in some circumstances, the law only
requires that notice be given to individuals who have already
been charged in a criminal complaint for the crime that is
the subject of the pending grand jury indictment. See N.Y.
Crim. Proc. Law § 190.50(5)(a). Thus, because Plaintiff
had not previously been named in a felony complaint, he
had no statutory right to be notified about the grand jury
proceeding. See, e.g., People v. McNamara, 99 A.D.3d 1248,
1249–50 (4th Dep't 2012). In any event, the fact that New
York State provides certain rights to criminal defendants
in grand jury proceedings does not mean that those rights
are likewise guaranteed by the United States Constitution.
Not surprisingly, Plaintiff has provided no authority for the
proposition that the First Amendment guarantees the right
of criminal defendants to testify in a grand jury. In fact, the
law is clear that defendants have no such right. See Flores
v. Levy, No. 07-cv-3753 (JFB) (WDW), 2008 WL 4394681,
at *11 (E.D.N.Y. Sept. 23, 2008) (“[I]t is axiomatic that
there is no constitutional right to testify before the grand
jury.”); Burwell v. Superintendent of Fishkill Corr. Facility,
No. 06-cv-787 (JFK), 2008 WL 2704319, at *8 (S.D.N.Y.
July 10, 2008). Moreover, even if such a constitutional right
existed, any violation would have been committed by the
DANY Defendants, against whom Plaintiff has withdrawn
all claims. None of the remaining NYPD Defendants are
plausibly alleged to have interfered with Plaintiff's supposed
right to testify in the state grand jury. Accordingly, the Court
dismisses Plaintiff's inchoate First Amendment claim on a
variety of grounds.
iii. Fourth Amendment Claim
Plaintiff also asserts that Defendants violated his Fourth
Amendment rights to be free from unlawful searches and
seizures. Once again, Plaintiff's constitutional claim is not
entirely clear, but judging from his opposition brief, he
appears to be asserting that his Fourth Amendment rights
were violated when he was “indicted, searched and detained
multiple times, arrested and arraigned.” (Doc. No. 59 at
8.) But as noted above, the Amended Complaint is bereft
of any allegations that any named NYPD Defendants were
involved in his arrest, arraignment, indictment, detention,
or search. And even if Plaintiff could plead facts against
the named Defendants, these claims appear to be malicious
prosecution or false arrest claims masquerading as Fourth
Amendment violations. This is a non-starter, since the Court
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has already dismissed Plaintiff's malicious prosecution claim,
and Plaintiff has stated, through his counsel, that he is not
bringing a false arrest claim (see Doc. No. 62 at 23:24).
*5 Although the Amended Complaint does assert one
September 2011 incident when police officers searched
Plaintiff's backpack (FAC ¶ 61), this claim is also fatally
deficient since Plaintiff does not allege that any of the
named Defendants in this case were involved in the search,
and, in any event, Plaintiff concedes that he gave the
police officers consent to search. (Id.) See, e.g., Schneckloth
v. Bustamonte, 412 U.S. 218, 219 (1973) (“[O]ne of the
specifically established exceptions to the requirements of
both a warrant and probable cause is a search that is conducted
pursuant to consent.”). Accordingly, Plaintiff has failed to
allege a viable Fourth Amendment claim.
iv. Due Process Claim
Plaintiff also asserts that the NYPD Defendants violated his
right to due process. 3 Although this argument is likewise
undeveloped and far from clear, it appears that Plaintiff's due
process claim, like his First Amendment claim, is premised
on the DANY Defendants' failure to inform Plaintiff of his
right to testify before the state grand jury. (FAC ¶¶ 41,
46.) Once again, because Plaintiff has withdrawn his claims
against the DANY Defendants and makes no allegations that
the remaining NYPD Defendants were in any way involved
with his grand jury proceedings, the Court dismisses any
freestanding due process claim Plaintiff might have in this
regard.
v. Equal Protection Claim
Plaintiff next asserts a claim under the Equal Protection
Clause, arguing that he was arrested and prosecuted only
because he is Hispanic. In order to establish a Fourteenth
Amendment selective enforcement claim, Plaintiff must
“show both (1) that [he was] treated differently from other
similarly situated individuals, and (2) that such differential
treatment was based on ‘impermissible considerations such
as race, religion, intent to inhibit or punish the exercise of
constitutional rights, or malicious or bad faith intent to injure
a person.’ ” Harlen Assocs. v. Inc. Vill. of Mineola, 273
F.3d 494, 499 (2d Cir. 2001) (quoting LaTrieste Rest. &
Cabaret v. Vill. of Port Chester, 40 F.3d 587, 590 (2d Cir.
1994)). Here, Plaintiff's allegation of disparate treatment is
wholly conclusory. He does not allege that he was treated
any differently from any similarly situated non-Hispanic
individuals, and he makes no reference whatsoever to how
the NYPD or DANY have handled similar cases where there
are cross-complaints of assault. Without more, Plaintiff's
perfunctory selective enforcement claim cannot survive a
motion to dismiss.
vi. Right to Counsel Claim
Like Plaintiff's other inchoate constitutional claims, his
assertion of a denial of his Sixth Amendment right to counsel
is highly conclusory and undeveloped. The Court notes that
the Sixth Amendment right to counsel does not attach until a
defendant's “first appearance before a judicial officer at which
a defendant is told of the formal accusation against him and
restrictions are imposed on his liberty.” Rothgery v. Gillespie
Cty., 554 U.S. 191, 194 (2008). Accordingly, Plaintiff had no
Sixth Amendment right to counsel until he was presented on
the indictment and arraigned in 2013. Nevertheless, Plaintiff
pleads no facts, even after the date of his arraignment, that
could plausibly give rise to a Sixth Amendment denial-of-
counsel claim, and the Court thus dismisses this claim as well.
vii. Ninth Amendment Claim
*6 Plaintiff next asserts a vague Ninth Amendment
claim. That Amendment states that the “enumeration in
the Constitution, of certain rights, shall not be construed
to deny or disparage others retained by the people.” U.S.
Const., amend. IX. The Ninth Amendment, however, does
not provide any individual rights that can support a suit
under Section 1983. See Licorish-Davis v. Mitchell, No. 12-
cv-601 (ER), 2013 WL 2217491, at *10 (S.D.N.Y. May
20, 2013); Bussey v. Phillips, 491 F. Supp. 2d 569, 586
(S.D.N.Y. 2006); Rini v. Zwirn, 886 F. Supp. 270, 289–90
(E.D.N.Y. 1995); cf. Barnett v. Carberry, 420 Fed.Appx.
67, 69 (2d Cir. 2011) (“Nor does the Ninth Amendment
provide ‘an independent source of individual rights; rather, it
provides a rule of construction that we apply in certain cases.’
” (quoting Jenkins v. Comm'r, 483 F.3d 90, 92 (2d Cir. 2007))).
Accordingly, Plaintiff's Ninth Amendment claim must also be
dismissed.
viii. Conspiracy
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Plaintiff also alleges that Defendants were engaged in
a conspiracy to deprive him of constitutional rights in
violation of Section 1983. To plausibly assert a Section 1983
conspiracy claim, Plaintiff must allege “(1) an agreement
between two or more state actors or between a state
actor and a private entity; (2) to act in concert to inflict
an unconstitutional injury; and (3) an overt act done in
furtherance of that goal causing damages.” Pangburn v.
Culbertson, 200 F.3d 65, 72 (2d Cir. 1999); see also
Ciambriello v. Cty. of Nassau, 292 F.3d 307, 324–25
(2d Cir. 2002). Importantly, Plaintiff must allege specific
instances of misconduct; “diffuse and expansive allegations
are insufficient.” Ciambriello, 292 F.3d at 325 (quoting
Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993),
overruled on other grounds by Leatherman v. Tarrant Cty.
Narcotics Intelligence & Coordination Unit, 507 U.S. 163
(1993)). Here, Plaintiff once again makes only “conclusory,
vague, or general allegations that ... [D]efendants have
engaged in a conspiracy,” thus warranting dismissal. Id. But
conclusory assertions aside, Plaintiff's conspiracy claim must
also fail because, as set forth above, the Court has dismissed
all of Plaintiff's constitutional claims asserted pursuant to
Section 1983. See, e.g., Mitchell v. Cty. of Nassau, 786
F. Supp. 2d 545, 564 (E.D.N.Y. 2011) (“As it has been
established that there was no constitutional violation, there
can be no conspiracy.”). Accordingly, Plaintiff's conspiracy
claim must also be dismissed.
ix. Supervisory Liability
Notwithstanding the sparse—or in the case of Donohue, non-
existent—allegations of personal involvement by supervisors,
Plaintiff devotes paragraphs of his Amended Complaint in
an attempt to allege supervisory liability. (FAC ¶¶ 119–
25.) Although there are several narrow circumstances in
which a supervisor may have sufficient personal involvement
in a subordinate's constitutional violation to be deemed
independently liable under Section 1983, see Colon v.
Coughlin, 58 F.3d 865, 873 (2d Cir. 1995), each of these
scenarios requires that a subordinate actually committed a
constitutional violation in the first place. Therefore, since the
Court has dismissed all of Plaintiff's Section 1983 claims,
there is no basis for asserting a supervisory liability claim.
b. Section 1981 Claim
Plaintiff asserts a discrimination claim under 42 U.S.C. §
1981, arguing that Defendants intentionally mistreated him
because he is a “white Hispanic.” (FAC ¶¶ 127–32.) Under
Section 1981, “[a]ll persons within the jurisdiction of the
United States shall have the same right ... to make and
enforce contracts, to sue, be parties, give evidence, and to
the full and equal benefit of all laws and proceedings ... as is
enjoyed by white citizens.” 42 U.S.C. § 1981(a). Establishing
a Section 1981 claim requires alleging facts showing that
(1) plaintiff is a member of racial minority, (2) defendants
intended to discriminate on the basis of race, and (3) the
discrimination concerned one of the statute's enumerated
activities. See Brown v. City of Oneonta, 221 F.3d 329, 339
(2d Cir. 2000). A claim of racial discrimination requires that
the plaintiff specifically allege “circumstances giving rise to a
plausible inference of racially discriminatory intent.” Yusuf v.
Vassar Coll., 35 F.3d 709, 713 (2d Cir. 1994). “ ‘Conclusory
allegations’ of racially motivated animus are insufficient.”
Johnson v. City of New York, 669 F. Supp. 2d 444, 450
(S.D.N.Y. 2009) (quoting Yusuf, 35 F.3d at 713).
*7 Here, Plaintiff alleges he is Hispanic, and thus a member
of a racial minority. See Vill. of Freeport v. Barella, 814
F.3d 594, 604–05 (2d Cir. 2016). However, Plaintiff's Section
1981 claim fails because he has not adequately pleaded the
second and third elements of the claim—that is, Plaintiff
offers nothing more than conclusory allegations in support
of the contention that the treatment he suffered was the
result of discriminatory intent. See, e.g., Bentley, Jr. v. Mobil
Gas Station, 599 Fed.Appx. 395, 396 (2d Cir. 2015) (“A
plaintiff's naked allegation that the defendant acted based
on the plaintiff's race and color is too conclusory to survive
a motion to dismiss.”); Yusuf, 35 F.3d at 714. Put simply,
the mere allegation that Defendants are white, the Assailants
are black, and Plaintiff is a “white Hispanic” is insufficient,
without more, to establish discriminatory intent. See Yusuf, 35
F.3d at 713 (affirming dismissal of Section 1981 claim where
complaint's only race-linked allegation was that plaintiff was
a different race than defendants). Accordingly, Plaintiff's
Section 1981 claim must likewise be dismissed.
c. Section 1985 Claim
Plaintiff also asserts a conspiracy claim under Section
1985(3). To assert such a claim, Plaintiff must plead “(1) a
conspiracy; (2) for the purpose of depriving, either directly or
indirectly, any person or class of persons of equal protection
of the laws, ...; (3) an act in furtherance of the conspiracy;
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(4) whereby a person is ... deprived of any right of a citizen
of the United States.” Brown, 221 F.3d at 341 (alterations
in original) (quoting Mian v. Donaldson, Lufkin & Jenrette
Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993)). The conspiracy
at issue must be motived by racial animus. Id. Here, the
conspiracy claims against the NYPD Defendants fail because,
as discussed above, Plaintiff has not plausibly alleged an
equal protection or any constitutional violation. Furthermore,
he does not allege facts that would support the plausible
inference that the NYPD Defendants formed the requisite
agreement and committed an overt act in furtherance of
that agreement, instead pinning his claims on insufficient
conclusory assertions. See Gallop v. Cheney, 652 F.3d 364,
369 (2d Cir. 2011). Accordingly, the conspiracy claim against
the NYPD Defendants must also be dismissed.
3. Monell Liability
Plaintiff also claims that, pursuant to Monell v. Department
of Social Services, 436 U.S. 658 (1978), the City, through
the NYPD and DANY, is vicariously liable for Plaintiff's
malicious prosecution and other constitutional violations. To
state a Monell claim against a municipality, a plaintiff must
allege: “(1) an official policy or custom that (2) causes the
plaintiff to be subjected to (3) a denial of a constitutional
right.” Wray v. City of New York, 490 F.3d 189, 195 (2d Cir.
2007) (citation omitted). As these elements indicate, Monell
does not provide a separate cause of action against a local
government for violations under Section 1983. Segal v. City
of New York, 459 F.3d 207, 219 (2d Cir. 2006). Rather,
“it extends liability to a municipal organization where that
organization's failure to train, or the policies or customs that
it has sanctioned, led to”—that is, caused—an underlying
“constitutional violation.” Id. Under Monell, “to ensure that
a municipality is not held liable solely for the actions of its
employee, courts must apply rigorous standards of culpability
and causation.” Richardson v. N.Y.C. Health & Hosps. Corp.,
No. 05-cv-6278 (RJS), 2009 WL 804096, at *21 (S.D.N.Y.
Mar. 25, 2009) (citation omitted).
As discussed above, Plaintiff has withdrawn his claims
against the DANY Defendants. Furthermore, the Court has
dismissed all of Plaintiff's constitutional claims against the
NYPD Defendants. Accordingly, because Plaintiff has failed
to plead the denial of any constitutional right that could serve
as the foundation for the imposition of municipal liability, the
Court dismisses any Monell claim against the City as well.
B. State Law Claims
*8 In addition to his federal claims, Plaintiff asserts state law
claims for malicious prosecution and intentional infliction
of emotional distress, as well as respondeat superior claims
against the City of New York for those state law violations.
These state law claims are before this Court because 28
U.S.C. § 1367 grants supplemental jurisdiction in cases
where Plaintiffs have alleged both federal and state law
claims. However, Section 1367 also grants district courts
the power to decline supplemental jurisdiction when the
court has dismissed all claims over which it has original
jurisdiction. See 28 U.S.C. § 1367(c)(3). As the Second
Circuit has instructed, in most cases where all federal claims
have been dismissed before trial, “the balance of factors to
be considered under the [supplemental] jurisdiction doctrine
—judicial economy, convenience, fairness, and comity—
will point toward declining to exercise jurisdiction over the
remaining state-law claims.” Valencia ex rel. Franco v. Lee,
316 F.3d 299, 305 (2d Cir. 2003) (quoting Carnegie-Mellon
Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)); see also
United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) (“[I]f
the federal law claims are dismissed before trial ... the state
claims should be dismissed as well.”). Because this Court has
dismissed all federal question claims in this case, the Court
declines to exercise supplemental jurisdiction over these state
law claims and dismisses them without prejudice.
IV. CONCLUSION
In short, Plaintiff's Amended Complaint—and his brief
in opposition to Defendant's motion—is a hodgepodge of
conclusory and undeveloped assertions that come nowhere
close to alleging the facts necessary to support any of
Plaintiff's claims. Accordingly, for the reasons set forth
above, the Court GRANTS Defendants' motion to dismiss
the Amended Complaint in its entirety. The Clerk of Court
is respectfully requested to terminate the motion pending at
docket number 56 and close this case.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2017 WL 4221083
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Footnotes
1 The following facts are drawn from the Amended Complaint. In ruling on this motion, the Court has also
considered Defendants' brief in support of their motion (Doc. No. 57), Plaintiff's opposition brief (Doc. No.
59), Defendants' reply (Doc. No. 64), and the pre-motion letters and pre-motion conference transcript (Doc.
Nos. 30, 36, 39, 43, 48, 51, 62).
2 Specifically, Plaintiff alleges violations of the First Amendment's Free Speech Clause, the Fourth
Amendment's Search and Seizure Clause, the Fifth and Fourteenth Amendments' Due Process Clause and
Equal Protection component/Clause, the Sixth Amendment's right to counsel, and the Ninth Amendment.
(FAC ¶ 134.)
3 While Plaintiff references both the Fifth and Fourteenth Amendments' Due Process and Equal Protection
Clauses, Plaintiff only asserts claims against state officials, and thus fails to state a claim under the Fifth,
which relates only to federal government action. See, e.g., United States v. Windsor, 133 S. Ct. 2675, 2693
(2013) (citing U.S. Const., amend. V and Bolling v. Sharpe, 347 U.S. 497, 499 (1954)).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Moye v. City of New York, Not Reported in F.Supp.2d (2012)
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2012 WL 2569085
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Ronald MOYE, Plaintiff,
v.
The CITY OF NEW YORK; Sgt. Nelson Caban,
P.O. Paul Jeselon, P.O. Samuel Fontanez, P.O.
Edward Simonetti, P.O. Matthew Boorman, P.O.
Frank Papa, P.O. Tawaina O'Neal, P.O. Brennan;
P.O. John; and A.D.A. Dustin Chao, Defendants.
No. 11 Civ. 316(PGG).
|
July 3, 2012.
MEMORANDUM OPINION & ORDER
PAUL G. GARDEPHE, District Judge.
*1 Plaintiff Ronald Moye has brought claims against the
City of New York, former New York County Assistant
District Attorney Dustin Chao, and eight members of the New
York City Police Department (“NYPD”) under 42 U.S.C.
§ 1983 and state law. Moye claims that Chao is liable for
damages under Section 1983 and state law for malicious
prosecution, abuse of process, denial of a fair trial, fabrication
of evidence, conspiracy “to inflict an unconstitutional injury,”
and intentional and negligent infliction of emotional distress.
(Am. Cmplt., Second, Third, Fourth, Fifth, Sixth, Seventh,
and Ninth Claims) Chao has moved to dismiss the Amended
Complaint on grounds of absolute immunity. For the reasons
stated below, Chao's motion to dismiss will be granted.
BACKGROUND
For purposes of deciding Defendant Chao's motion to dismiss,
the Court has assumed that the following facts presented in
the Amended Complaint are true.
I. MOYE'S ARREST
On or about March 12, 2002, at approximately 8:00
p.m., NYPD officers Paul Jeselson and Tawaina O'Neal
were stationed on the rooftop of an apartment building
on the south side of West 118th Street near the corner
of Morningside Avenue conducting nighttime narcotics
surveillance. (Am.Cmplt.¶¶ 19, 22) Plaintiff's car was located
on the north side of West 118th Street, near Manhattan
Avenue. (Id. ¶ 21) Officer Jeselson claimed that he observed
Plaintiff “extend his hand from the driver's side window and
hand a small glassine” to another individual—later arrested
—who, in turn, handed it to an unapprehended customer. (Id.
¶ 20) The Defendant officers moved in and arrested Moye in
the vicinity of 352 West 118th Street. (Am.Cmplt.¶¶ 12, 25)
At the time of the arrest, and later at the 28th Precinct, the
officers searched Moye and his car and found United States
currency, both in Moye's possession and inside the vehicle.
(Id. ¶ 27) The Defendant officers unnecessarily grabbed
Moye, pushed him, and placed excessively tight handcuffs on
him (id. ¶ 30), causing him to suffer bruises to and numbness
in his wrists. (Id. ¶ 32)
Moye was indicted on March 22, 2002, for Criminal
Possession of a Controlled Substance in the Third Degree.
(Am. Cmplt. ¶ 35; Schwartz Decl., Ex. A) Plaintiff alleges that
the police officer defendants “conspired [to give] and gave
false testimony and intentionally placed false evidence before
the grand jury.” 1 (Am.Cmplt.¶ 35)
II. MOYE'S FIRST TRIAL
Moye's first trial began on January 14, 2003. (Schwartz Decl.,
Ex. B) A.D.A. Chao introduced photographs at trial which
he claimed showed the position of Plaintiff s car as it was
parked on West 118th Street. (Am.Cmplt.¶ 38) Chao, Officer
Jeselson, and Officer Papa were present when a District
Attorney's office photographer took these photos in June 2002
from the March 12, 2002 observation point. (Id. ¶¶ 41–42,
44) Although the photographs were intended to convey the
vantage point of the officers on the night of the arrest, they did
not replicate the “nighttime conditions.” (Id. ¶ 45) According
to Moye, these photographs nonetheless showed that the
officers could not have seen Plaintiff extend his hand from
the driver's side window and pass a small glassine to another
individual, because the driver's side could not be seen from
the vantage point of the rooftop observation post, even with
binoculars. (Id. ¶¶ 46, 48) At trial, Officer Jeselson admitted
that “he was not able to see the driver's side of the vehicles in
the photographs.” (Id. ¶ 47) Jeselson nonetheless claimed that
he had been able to see Moye's hand “during the nighttime
observation.” (Id. ¶ 39) The first trial ended in a mistrial, with
the jury unable to reach a verdict. (Id. ¶ 49)
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III. MOYE'S SECOND TRIAL
*2 In February 2003, A.D.A. Chao, Officers Brennan
and Jeselson, and D.A's Office photographer Nancy Badger
returned to West 118th Street to take more photographs. (Id.
¶ 53) They repositioned the car on an angle in order to make
it appear that the officers would have been able to see Moye's
hand outside the driver's side window on the night of his
arrest. (Id. ¶¶ 55–60) With the car positioned in this fashion,
Jeselson and Chao instructed Badger to take photographs of
Officer Brennan's hand outside the driver's side window in an
effort to simulate what the officers would have seen that night.
(Id. ¶¶ 60–61) Jeselson and Chao then had Brennan move the
car back to a curbside position “where additional photographs
[were] taken at a wide angle to falsely give the impression that
the close-ups were merely enlargements of the vehicle parked
along the curb.” (Id. ¶ 63)
At Moye's second trial, Chao introduced these new
photographs and elicited testimony from Jeselson in which
he used the photographs to support his claim that he was
able to see Moye's hand from the rooftop observation post.
(Id. ¶¶ 66, 74) However, Badger testified that, in taking
the new photographs, “the defendants moved the vehicle
to an angle where the hand could be visible.” Defendants
then returned the vehicle to its curbside position and took
additional photographs that “falsely give the impression that
the close-ups were merely enlargements of the vehicle parked
along the curb.” (Id. ¶¶ 81–84)
In summation, Moye's lawyer argued that Jeselson had lied
about his observations from the roof and the positioning of
the car in the photographs introduced by the prosecution.
(Id. ¶ 85) In response, A.D.A. Chao argued that Officer
Jeselson had no opportunity to frame the defendant, because
Chao had been present at the observation post:
“[Defense counsel] spoke about people on that roof.
It's in evidence. Officer Jeselson was on that roof, the
photographer Laura Badger was on the roof, and I was on
that roof. Now, if he is directing something improperly, that
is Officer Jeselson, well, it's in front of me.
“And if he knew he was going to get away with it when
I say that's the opportunity, you know [defense counsel]
talked about a lot of people losing their jobs about perjuring
themselves, about the integrity of Robert Morgenthau's
office. Well, if Officer Jeselson thought he was going to get
away with it—
“[DEFENSE counsel]: Mr. Chao is vouching for his
witness.
“THE COURT: Overruled.
“[ADA] CHAO: If Officer Jeselson thought he was going
to get away with it with me present, all that talk about firing,
that should be me because I'm prosecuting this case, not
Officer Jeselson.
“[DEFENSE counsel]: That's objectionable vouching for
his witness.
“THE COURT: Overruled.
“[DEFENSE counsel]: Your Honor, he is making himself
an unsworn witness for the credibility of his police officer.
*3 “THE COURT: Overruled.
“[ADA] CHAO: Ladies and gentlemen, Mr. Morgenthau
should fire me if Officer Jeselson thinks he is going to be
able to say that in court, lie to you, when the person who
is standing right next to him on that roof is me. Well, that
lies with me.
“So what's the explanation? If there's no motive, no
opportunity for why Ms. Badger remembers it differently.
Well, there's evidence that you heard the officer was on the
roof. Evidence that you heard I was on the roof also. I have
no other answer other than the fact that she is mistaken....
“[DEFENSE counsel]: He is vouching for his witness using
the pronoun I.
“THE COURT: Members of the jury, you can accept his
argument as to what happened on the roof. It's his argument
based upon the evidence as he recalls it.”
People v. Move, 52 A.D.3d 1, 5 (1st Dep't 2008); see also
(Am. Cmplt. ¶¶ 87–92.
Moye was convicted at his second trial and sentenced to four-
and-a-half to nine years' imprisonment. (Am.Cmplt.¶¶ 13–14)
IV. THE CHARGES AGAINST MOYE ARE DISMISSED
On appeal, the First Department vacated the conviction in
a 3–2 decision. People v. Move, 52 A.D.3d 1. The First
Department found that “the prosecutor improperly vouched
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for his witness and interjected his personal integrity and the
veracity of the District Attorney's office into his summation to
support the credibility of Police Office Jeselson.” Id. at 6. The
New York Court of Appeals agreed that Chao had engaged in
impermissible vouching for his witness, affirmed the reversal
of the conviction, and remanded the case to Supreme Court.
People v. Move, 12 N.Y.3d 743, 744 (2009). After remand,
the New York County District Attorney's Office dismissed the
case on October 21, 2009. (Am.Cmplt.¶¶ 16, 37)
DISCUSSION
I. IMMUNITY
Chao argues that the claims against him must be dismissed
because his actions are protected by absolute immunity. 2
Section 1983 “purports to create a damages remedy against
every state official for the violation of any person's federal
constitutional or statutory rights.” Kalina v. Fletcher, 522
U .S. 118, 123 (1997). In order to state a claim under Section
1983, a plaintiff must show that the conduct complained
of was committed by a person or entity acting under color
of state law, and that the conduct deprived a person of
rights, privileges, or immunities secured by the Constitution.
Newton v. City of New York, 566 F.Supp.2d 256, 269–70
(S.D.N.Y.2008) (citing Palmieri v. Lynch, 392 F.3d 73, 78 (2d
Cir.2004)).
“Although section 1983 imposes liability upon every person
who deprives another of a constitutional right under color of
state law, the doctrines of absolute and qualified immunity
shield prosecutors and law enforcement officers from liability
related to their official acts.” Day v. Morgenthau, 909 F.2d
75, 77 (2d Cir.1990). While Section 1983 does not explicitly
provide for such immunity, the Supreme Court and Second
Circuit have ruled that “Congress did not intend § 1983 to
abrogate immunities ‘well grounded in history and reason.’ “
Pinaud v. Cnty. of Suffolk, 52 F.3d 1139, 1147 (2d Cir.1995)
(quoting Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993)).
*4 As the Second Circuit has explained:
Such immunities are of two types: absolute and qualified.
Buckley v. Fitzsimmons, 509 U.S. 259, 268, 113 S.Ct.
2606, 125 L.Ed.2d 209 (1993). Absolute immunity is
reserved for officials who perform “special functions” and
deserve absolute protection from damages liability. Among
these are prosecutors, and persons working under their
direction, when they function as advocates for the state
in circumstances “intimately associated with the judicial
phase of the criminal process.” Imbler v. Pachtman, 424
U.S. at 430–31. See also Hill v. City of New York, 45 F.3d at
660 (extending absolute prosecutorial immunity to persons
acting under the direction of prosecutors in performing
functions closely tied to the judicial process).
By contrast, only qualified immunity applies to law
enforcement officials, including prosecutors, when they
perform investigative functions. Buckley v. Fitzsimmons,
509 U.S. at 273. (“When a prosecutor performs the
investigative functions normally performed by a detective
or police officer, it is neither appropriate nor justifiable
that, for the same act, immunity should protect the one
and not the other.”) (internal quotation marks and citations
omitted); accord Zahrey v. Coffey, 221 F.3d 342, 349 (2d
Cir.2000).
Bernard v. Cnty. of Suffolk, 356 F.3d 495, 502–03 (2d
Cir.2004).
Absolute immunity extends only so far as necessary to protect
the judicial process. Hill v. City of New York, 45 F.3d 653, 660
(2d Cir.1995). Nonetheless,
[t]he doctrine of absolute prosecutorial immunity creates
a formidable obstacle for a plaintiff seeking to maintain a
civil rights action against a district attorney, as it provides
that “prosecutors are absolutely immune from liability
under § 1983 for their conduct in ‘initiating a prosecution
and in presenting the State's case,’ insofar as that conduct
is ‘intimately associated with the judicial phase of the
criminal process.’ “ Burns v. Reed, 500 U.S. 478, 486, 111
S.Ct. 1934, 1939, 114 L.Ed.2d 547 (1991) (quoting Imbler,
424 U.S. at 430–31, 96 S.Ct. at 995).
Pinaud, 52 F.3d at 1147. The Court addresses the parameters
of absolute prosecutorial immunity below.
A. Legal Standard for Absolute Prosecutorial Immunity
A prosecutor who, as here, is sued in his or her individual
capacity, may assert absolute or qualified immunity as
a defense. Courts may grant a Rule 12(b)(6) motion to
dismiss on grounds of absolute immunity where the facts
establishing the defense appear in the complaint. Deronette
v. City of New York, No. 05 CV 5275(SJ), 2007 WL 951925,
at *4 (E.D.N.Y. Mar. 27, 2007) (citing Hill, 45 F.3d at
663) (absolute immunity may be decided on a Rule 12(b)
(6) motion where facts establishing the defense may be
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“gleaned from the complaint”)). Moreover, district courts
are encouraged to determine the applicability of an absolute
immunity defense at the earliest appropriate stage, and
preferably before discovery. 3 Id. (citing Mitchell v. Forsyth,
472 U.S. 511, 526 (1985)); United States v. Colbert, No. 87
Civ. 4789, 1991 WL 183376 at *4 (S.D.N.Y. Sept. 11, 1991).
This approach is appropriate given that “absolute immunity
defeats a suit at the outset, so long as the official's actions
were within the scope of the immunity.” Imbler, 424 U.S. at
419 n. 13. “[T]he official seeking absolute immunity bears
the burden of showing that such immunity is justified for the
function in question.” Buckley, 509 U.S. at 270 (1993) (citing
Burns, 500 U.S. at 486).
*5 Prosecutorial immunity to Section 1983 claims is
grounded in the immunity to tort liability that prosecutors
enjoy under the common law. Flagler v. Trainor, 663 F.3d
543, 546 (2d Cir.2011) That immunity arises from the
“concern that harassment by unfounded litigation would
cause a deflection of the prosecutor's energies from his public
duties, and the possibility that he would shade his decisions
instead of exercising the independence of judgment required
by his public trust.” Id. (citing Imbler, 424 U.S. at 423).
Immunity protects the proper functioning of the prosecutor's
office by insulating the exercise of prosecutorial discretion.
Kalina, 522 U.S. at 125. Prosecutors are therefore “absolutely
immune from suit only when acting as advocates and when
their conduct involves the exercise of discretion.” Flagler,
663 F.3d at 546 (citing Kalina, 522 U.S. at 127).
The Supreme Court addressed the question of absolute
immunity for prosecutors in Imbler, where it held that
prosecutors are entitled to absolute immunity for damage suits
under Section 1983 for all acts “intimately associated with the
judicial phase of the criminal process,” including “initiating
a prosecution and ... presenting the State's case [at trial].”
Imbler, 424 U.S. at 430.
Later, in Buckley, 509 U.S. at 273, the Supreme Court
considered whether the prosecutor defendants were entitled to
absolute immunity for “investigative” work they performed
well before seeking an indictment, involving an effort to
connect the plaintiff to a bootprint left at a murder scene.
Although the Court rejected the prosecutors' claim for
absolute immunity, the Court cautioned that it had
not retreated ... from the principle
that acts undertaken by a prosecutor
preparing for the initiation of judicial
proceedings or for trial, and which
occur in the course of his role
as an advocate for the State, are
entitled to the protections of absolute
immunity. Those acts must include
the professional evaluation of the
evidence assembled by the police
and appropriate preparation for its
presentation at trial or before a grand
jury after a decision to seek an
indictment has been made.
Buckley, 509 U.S. at 273 (internal citations and quotations
omitted).
Whether a prosecutor has absolute immunity for a particular
act thus “depends principally on the nature of the function
performed, not on the office itself.” Ying Jing Gan v. City of
New York, 996 F.2d 522, 530 (2d Cir.1993). “Such functions
include the decision to bring charges against a defendant,
presenting evidence to a grand jury, and the evaluation of
evidence prior to trial.” Johnson v. City of New York, No. 00
CIV 3626(SHS), 2000 WL 1335865, at *2 (S.D.N.Y. Sept.
15, 2000) (citing Kalina, 522 U.S. at 126). Furthermore,
this “application of immunity is not limited to the duties a
prosecutor performs in the courtroom.” Dory v. Ryan, 25 F.3d
81, 83 (2d Cir.1994) (citing Buckley, 509 U.S. at 272).
*6 “[A] district attorney is [not only] absolutely immune
from civil liability for initiating a prosecution and presenting
the case at trial,” but also “immune for conduct in preparing
for those functions; for example, evaluating and organizing
evidence for presentation at trial or to a grand jury, or
determining which offenses are to be charged.” Hill, 45
F.3d at 661 (citations omitted). Prosecutorial immunity from
Section 1983 damages liability is broadly defined, covering
“virtually all acts, regardless of motivation, associated with
[the prosecutor's] function as an advocate.” Dory, 25 F.3d at
83. The Second Circuit has been “mindful of the Supreme
Court's admonition that ‘the duties of the prosecutor in his
role as advocate for the State involve actions preliminary
to the initiation of a prosecution and actions apart from
the courtroom.... Preparation, both for the initiation of the
criminal process and for a trial, may require the obtaining,
reviewing, and evaluating of evidence.’ “ Barbera v. Smith,
836 F.2d 96, 100 (2d Cir.1987) (quoting Imbler, 424 U.S.
at 431 n. 33); see also Barrett v. United States, 798 F.2d
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565, 571 (2d Cir.1986) (“The absolute immunity accorded
to government prosecutors encompasses not only their
conduct of trials but all of their activities that can fairly
be characterized as closely associated with the conduct of
litigation or potential litigation....”)
Because absolute immunity extends broadly to all acts
committed by a prosecutor in his or her role as an advocate, it
protects prosecutors against claims that they conspired to, or
actually presented, fabricated evidence at trial:
absolute immunity protects a prosecutor from § 1983
liability for virtually all acts, regardless of motivation,
associated with his function as an advocate. This would
even include ... allegedly conspiring to present false
evidence at a criminal trial. The fact that such a conspiracy
is certainly not something that is properly within the role
of a prosecutor is immaterial, because “[t]he immunity
attaches to his function, not to the manner in which he
performed it.” Barrett v. United States, 798 F.2d 565, 573
(2d Cir.1986); see also Daloia v. Rose, 849 F.2d 74, 75
(2d Cir.1988) (per curiam ) (holding ... that prosecutor was
immune from § 1983 liability for knowingly presenting
false testimony). As much as the idea of a prosecutor
conspiring to falsify evidence [is disturbing] ... there is
a greater societal goal in protecting the judicial process
by preventing perpetual suits against prosecutors for the
performance of their duties. See Imbler, 424 U.S. at 426–
428.
Dory, 25 F.3d at 83. 4
Although courts have declined to establish a bright-line
test based on the stage of a criminal proceeding, “absolute
prosecutorial immunity has generally been found in cases
where some type of formal proceeding had been commenced
or was being commenced by the conduct at issue.” Tabor v.
New York City, No. 11 CV 0195 FB, 2012 WL 603561, at
*4 (E.D.N.Y.2012) (citing Barbera v. Smith, 836 F.2d at 99.
In contrast, where formal proceedings have not begun and
the prosecutor is acting in an investigative capacity—such
as by providing the police with legal advice on investigative
techniques—qualified immunity generally applies. Id. While
the Supreme Court has noted that a prosecutor is not
absolutely immune for every action taken after probable
cause has been established, see Buckley, 509 U.S. at 274
n. 5, “the Court's treatment of the issue demonstrates that
the existence of probable cause with respect to a particular
suspect is a significant factor to be used in evaluating the
advocatory nature of prosecutorial conduct.” Cousin v. Small.
325 F.3d 627, 633 (5th Cir.2003); accord Barbera, 836 F.2d
at 99 (noting “that in each of the cases we have reviewed
where absolute immunity was upheld, some type of formal
proceeding had been commenced or was being commenced
by the challenged acts”); see also DiBlasio v. Novello, 344
F.3d 292, 300–01 (2d Cir.2003) ( “In assessing whether
absolute immunity should attach to a prosecutor ... we have
focused on the timing of the conduct at issue....”) Thus, in
interpreting Buckley, the Second Circuit has distinguished
between “preparing for the presentation of an existing case,”
on the one hand, and attempting to “furnish evidence on which
a prosecution could be based,” on the other hand, with only
the former entitling a prosecutor to absolute immunity. Smith
v. Garretto, 147 F.3d 91, 94 (2d Cir.1998).
*7 In assessing a prosecutor's claim of absolute immunity,
the court employs a “functional approach,” see, e.g., Burns,
500 U.S. at 486, which looks to “the nature of the function
performed, not the identity of the actor who performed it.”
Forrester v. White, 484 U.S. 219, 229 (1988); see also Van de
Kamp v. Goldstein, 555 U.S. 335, 335–336 (2009) (“To decide
whether absolute immunity attaches to a particular kind of
prosecutorial activity, one must take account of ... ‘functional’
considerations”). The court must inquire whether the actions
in question are part of a prosecutor's traditional function
and whether they are closely associated with the judicial
process. Blouin v. Spitzer, 356 F.3d 348, 357 (2d Cir.2004) (a
court must examine the “nature of the function performed”
in assessing whether absolute immunity will attach.); Doe v.
Phillips, 81 F.3d 1204, 1209 (2d Cir.1996).
B. Analysis
1. Malicious Prosecution, Abuse of Process
To the extent that the Amended Complaint seeks to hold
Chao liable for initiating the prosecution of Moye, absolute
immunity is clearly applicable. Shmueli v. City of New
York, 424 F.3d 231, 237 (2d Cir.2005) (“[T]he prosecutor
is shielded from liability for damages for commencing and
pursuing the prosecution, regardless of any allegations that
his actions were undertaken with an improper state of mind or
improper motive.”); see also Hill, 45 F.3d at 660–61 (holding
that prosecutors and those working under their direction are
absolutely immune for claims relating to the initiation of a
prosecution and for conduct before a grand jury). Plaintiff s
federal and state law claims alleging malicious prosecution
and abuse of process will therefore be dismissed. 5
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2. Creation of Misleading Photographs, Conspiracy to
Present False Evidence at Trial
Moye alleges that Chao, in preparation for Moye's second
trial, returned to West 118th Street and instructed Nancy
Badger—the District Attorney's office photographer—to take
photographs that inaccurately represented the position of
Moye's car on the night of his arrest. Chao then presented
these photographs at the second trial. (Am.Cmplt.¶¶ 38, 40,
50, 50–54, 66–67) Moye alleges that these photographs gave
the false impression that the police in the observation post
would have been able to see Moye's hand outside the driver's
side window. (Id. ¶ 60) Moye further argues that absolute
immunity does not extend to Chao's role in obtaining these
allegedly misleading photographs, because obtaining such
evidence is “not a traditional prosecutorial function” and was
“done for the purpose of misleading the second jury.” (Pltf.
Opp. Br. at 10–11)
Prosecutors' absolute immunity applies “not just for
presentation of testimony,” however, but also to preparatory
conduct “relating to their advocacy.” Dory, 24 F.3d at 83.
The Supreme Court and the Second Circuit have emphasized
that ‘ “the duties of the prosecutor in his role as advocate
for the State involve actions preliminary to the initiation
of a prosecution and actions apart from the courtroom....
Preparation, both for the initiation of the criminal process
and for a trial, may require the obtaining, reviewing, and
evaluating of evidence.’ “ Barbera, 836 F.2d at 100 (quoting
Imbler, 424 U.S. at 431 n. 33); see also Barrett, 798 F.2d
at 571 (“The absolute immunity accorded to government
prosecutors encompasses not only their conduct of trials
but all of their activities that can fairly be characterized as
closely associated with the conduct of litigation or potential
litigation....”).
*8 Chao obtained the photographs at issue after Moye's first
trial and in preparation for Moye's second trial. Accordingly,
his involvement in obtaining these photographs took place
long after formal criminal proceedings had been commenced.
See Deskovic v. City of Peekskill, Nos. 07–CV–8150 (KMK),
07–CV–9488 (KMK), 2009 WL 2475001, at *10 (S.D.N.Y.
Aug. 13, 2009) (“[i]n assessing how closely connected a
prosecutor's conduct is to the judicial phase of the criminal
process, the timing of the conduct is relevant”) (citing
DiBlasio, 344 F.3d at 300–01).
Furthermore, in directing that these new photographs be
taken, Chao was performing in his role as a prosecutor
preparing for trial: he sought to obtain these visual depictions
of the crime scene in order to strengthen his case. (Am. Cmplt.
¶ 64 (purpose of second set of photographs was “to show
that P.O. Jeselson could see a hand coming out of the car
window on the date of plaintiff s arrest”)). Although Chao
was working with the police, he was acting within his role
“as [an] advocate for the State.” Burns, 500 U.S at 491.
Courts have consistently found absolute immunity applicable
where, as here, a Section 1983 plaintiff is relying on post-
indictment misconduct by a prosecutor aimed at obtaining
additional evidence to support pending charges at trial. See,
e.g., Deskovic, 2009 WL 2475001, at *5, *11, *13 (plaintiff
contended that A.D.A. had, post-indictment, conspired to
procure false scientific evidence that he later introduced at
trial; granting A.D.A.'s motion to dismiss Section 1983 claims
on absolute immunity grounds, because the A.D.A.'s alleged
misconduct took place after indictment during the “judicial
phase of the criminal process”); Bertuglia v. City of New York,
No. 11 Civ. 2141(JGK), 2012 WL 906958, at *21 (S.D.N.Y.
Mar. 19, 2012) (granting motion to dismiss state law claims
against A.D.A. defendant based on post-indictment evidence-
gathering activities; absolute immunity applicable because
“the Complaint does not allege facts that create a plausible
inference that [the prosecutor] was not acting as an advocate
seeking to strengthen her case against an indicted defendant”);
Zahrey v. City of New York, No. 98–4546, 2009 WL 54495, at
*30–*31 (S.D.N.Y. Jan. 7, 2009) (granting absolute immunity
to A.D.A. alleged to have engaged in post-indictment effort
to fabricate evidence); KRL v. Moore, 384 F.3d 1105 (9th
Cir.2004) (granting A.D.A. absolute immunity for alleged
misconduct related to his role in obtaining a post-indictment
search warrant seeking evidence to corroborate pending
charges); Cousin v. Small, 325 F.3d 627, 635 (5th Cir.2003)
(granting absolute immunity to A.D.A. accused of fabricating
evidence post-indictment; “at the time of [A.D.A.] Jordan's ...
conversations with Rowell, in which Jordan allegedly told
Rowell to implicate Cousin falsely in the murder and coached
him on how to testify, Jordan was acting as an advocate rather
than as an investigator. The interview was intended to secure
evidence that would be used in the presentation of the state's
case at the pending trial of an already identified suspect,
not to identify a suspect or establish probable cause. Jordan
therefore is entitled to absolute immunity with respect to this
claim.”); see also Peay v. Ajello, 470 F.3d 65, 68 (2d Cir.2006)
(affirming dismissal on absolute immunity grounds of Section
1983 claim brought against Assistant State's Attorney based
on alleged conspiracy to present false evidence at trial); Dory,
25 F.3d at 83 (“absolute immunity protects a prosecutor from
§ 1983 liability for ... allegedly conspiring to present false
evidence at a criminal trial”).
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*9 Because Chao is alleged to have obtained the misleading
photographs post-indictment, in preparation for Moye's
second trial, and in an effort to strengthen his case as the
State's advocate, he is entitled to absolute immunity for this
alleged misconduct.
3. Misconduct at Trial
Moye alleges that Chao elicited false testimony from Officer
Jeselson at trial, that he buttressed Jeselson's false testimony
through introduction of the misleading photographs, and that
he then vouched for the truth of Jeselson's testimony in his
summation.
A prosecutor's presentation of false evidence, or subornation
of perjury at trial, is protected by absolute immunity. Jones
v. King, No. 10 Civ. 0897(PKC), 2011 WL 4484360, at *4
(S.D.N.Y. Sept. 28, 2011) (“The claim that [the prosecutor]
‘conspir[ed] to present false evidence at a criminal trial’ is
barred.... The prosecutor enjoys absolute immunity ‘despite
allegations of his “knowing use of perjured testimony....’ “
”) (citations omitted); Bertuglia, 2012 WL 906958, at *23
(prosecutors are entitled to absolute immunity for allegations
that they “coerced and harassed various witnesses into giving
false testimony”); Urrego v. United States, No. 00 CV
1203(CBA), 2005 WL 1263291, at *2 (E.D.N.Y.2005) (“It
is settled law that when a prosecutor presents evidence to
a grand jury and at trial he is acting as an advocate and
entitled to absolute immunity on claims that the evidence
presented was false.”); Johnson v. Scott, No. CV–91–
1467(CPS), 1993 WL 36131, at *2 (E.D.N.Y. Feb. 5, 1993)
(A.D.A. entitled to absolute immunity related to witness
perjury, because this “concern[ed] ... the presentation of the
State's case against the plaintiff); see Imbler, 424 U.S. at
430–31 (granting prosecutors absolute immunity for their
conduct “in presenting the State's case,” including permitting
a fingerprint expert to give false testimony, suppressing
important evidence, and introducing a misleading artist's
sketch into evidence.).
The analysis does not change because Plaintiff alleges a
conspiracy to commit these acts. Shmueli, 424 F.3d at 237–
38 (“principles [of absolute immunity] are not affected
by allegations that improperly motivated prosecutions were
commenced or continued pursuant to a conspiracy”) (citing
Dory, 25 F.3d at 83); Bernard. 356 F.3d at 503; Hill, 45 F.3d
at 659 n. 2 (when the underlying activity at issue is covered
by absolute immunity, the “plaintiff derives no benefit from
alleging a conspiracy”).
Plaintiff also argues that Chao acted outside his prosecutorial
role when he vouched for Jeselson's testimony during
summation. Because a prosecutor's summation is part of
presenting the State's case, courts agree that a prosecutor's
conduct during summation is protected by absolute immunity.
See Robinson v. Rome, No. 11–CV–1411(NGG)(LB), 2011
WL 1541044, at *3 (E.D.N.Y.2011) (finding A.D.A.s immune
from suit for claims related to, inter alia, an improper
summation); Johnson, 1993 WL 36131, at *2 (granting
absolute immunity to prosecutor where plaintiff alleged that
A.D.A. “express [ed] to the jury her opinion as to the truth of
the testimony of her witnesses during her summation”).
*10 In sum, to the extent that Moye's claims against Chao
are based on his conduct at trial, those claims are covered by
absolute immunity.
* * * *
The Court concludes that Chao has absolute immunity for
all of Moye's claims, whether based on federal or state law,
and whether founded on theories of malicious prosecution,
abuse of process, denial of a fair trial, fabricated evidence,
conspiracy, or intentional or negligent infliction of emotional
distress.
CONCLUSION
Chao's motion to dismiss is GRANTED. The Clerk of the
Court is directed to terminate the motion (Dkt. No. 23).
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2012 WL 2569085
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Footnotes
1 The Amended Complaint does not disclose what false testimony or other false evidence was laid before the
grand jury. Moreover, there is no suggestion that Chao was involved in presenting false testimony or false
evidence to the grand jury.
2 Because Moye sues Defendant Chao in his individual capacity (Am .Cmplt.¶ 9), his claims are not barred
by the Eleventh Amendment. See Ying Jing Gan v. City of New York, 996 F.2d 522, 529 (2d Cir.1993) (“To
the extent that ... a [Section 1983] claim is asserted against a [state official] in his individual capacity, he
may assert privileges of absolute or qualified immunity but may not assert immunity under the Eleventh
Amendment.”).
3 District courts likewise evaluate the applicability of absolute immunity before assessing whether a plaintiff has
sufficiently alleged a constitutional violation. Pinaud, 52 F.3d at 1148 n. 4 (citing Buckley, 509 U.S. at 261).
4 By contrast, discretionary prosecutorial actions that are not “intimately associated with the judicial phase of
the criminal process” are entitled only to qualified immunity. See Buckley, 509 U.S. at 270–75; Burns, 500
U.S. at 491–95. A prosecutor is “absolutely immune from liability under section 1983 [only] for acts ‘within
the scope of [their] duties in initiating and pursuing a criminal prosecution.’ “ Day, 909 F.2d at 77 (quoting
Imbler, 424 U.S. at 410). Thus, when a prosecutor acts in an investigative or administrative capacity, absolute
immunity is not available. Hill, 45 F.3d at 661. For example, immunity is not available when a prosecutor
releases information or evidence to the media, Buckley, 509 U.S. at 276–78; authorizes or directs the use
of wiretaps, Powers v. Coe, 728 F.2d 97, 103 (2d Cir.1984); or performs the functions normally performed
by the police, such as assisting in the execution of a search or seizure. See Buckley, 509 U.S. at 273. The
Supreme Court has also withheld absolute immunity for conduct unrelated to advocacy, such as giving legal
advice, Burns, 500 U.S. at 492–96, or acting as a complaining witness. Kalina, 522 U.S. 118, 129–31; see
also Ying Jing Gan, 996 F.2d at 533 (finding that prosecutor was not entitled to absolute immunity where he
allegedly exposed a witness to retaliation and failed to provide adequate protection for the witness).
5 Absolute immunity is a defense not only to Section 1983 claims but to related state law claims. See Shmueli,
424 F.3d at 238 (dismissing Section 1983 and related state law malicious prosecution claims); Arum v. Miller,
331 F.Supp.2d 99, 112 (E.D.N.Y.2004) (dismissing abuse of process and civil conspiracy claims on grounds
of absolute prosecutorial immunity); Imbler, 424 U.S. at 424 (same principles require conferral of absolute
immunity for damage claims against prosecutors under Section 1983 and state law).
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Rich v. New York, Not Reported in Fed. Supp. (2022)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2022 WL 992885
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Benjamin Samuel RICH, formerly
known as Samuel Guillaume, Plaintiff,
v.
State of NEW YORK, New York City; New
York City Police Department; New York County;
New York County District Attorney's Office;
Detective Michael Miller, Vincent Corrando, John
Passementi, Cyrus Vance, Jr., Shipla Kalra, David
Nasar, and Does 1–100, Inclusive., Defendants.
21 Civ. 3835 (AT)
|
Signed 03/31/2022
Attorneys and Law Firms
Benjamin Samuel Rich, Staten Island, NY, Pro Se.
Gee Won Cha, Julinda A. Dawkins, New York State Office
of the Attorney General, New York, NY, for Defendant State
of New York.
Andrew B. Spears, New York City Law Department, New
York, NY, for Defendants City New York, Michael Miller,
Vincent Corrando, John Passementi.
Patricia Jean Bailey, New York County District Attorney's
Office, New York, NY, for Defendants Cyrus Vance, Jr.,
David Nasar.
ORDER
ANALISA TORRES, District Judge:
*1 This action arises from a 2016 arrest and prosecution
of Plaintiff pro se, Benjamin Samuel Rich, in New York
County. He brings claims against the State of New York (the
“State”); former New York County District Attorney (“DA”)
Cyrus R. Vance, Jr. and two Assistant District Attorneys
(“ADAs”), Shilpa Kalra and David Nasar, (collectively, the
“DA Defendants”); and the City of New York (the “City”),
the New York City Police Department (the “NYPD”), and
NYPD officers Michael Miller, Vincent Corrando, and John
Passementi (collectively, the “City Defendants”), pursuant to,
inter alia, 42 U.S.C. §§ 1983, 1985, and 1986, the New York
State Constitution, and New York common law. See generally
Compl., ECF No. 1. Before the Court are three motions to
dismiss Plaintiff's complaint pursuant to Rules 12(b)(1) and
12(b)(6) of the Federal Rules of Civil Procedure, brought by
the State, ECF No. 20, the DA Defendants, ECF No. 22, and
the City Defendants, ECF No. 32.
For the reasons stated below, the State's motion to
dismiss is GRANTED, and Plaintiff's claims against the
State are DISMISSED. The DA Defendants’ motion to
dismiss is GRANTED—Plaintiff's claims against Vance
are DISMISSED; and his claims against Kalra and Nasar
are DISMISSED except for Counts 3 and 4, which are
DISMISSED without prejudice to renewal in an amended
complaint. The City Defendants’ motion to dismiss is
DENIED as to Count 4, and GRANTED in all other respects.
Plaintiff's claims against Passamenti, the NYPD, and the City
are DISMISSED; and his claims against Miller and Corrando
are DISMISSED, except for Count 3, which is DISMISSED
without prejudice to renewal in an amended complaint.
BACKGROUND 1
On January 6, 2016, Plaintiff was at the Highline Ballroom
(“the Highline”), a nightclub in Manhattan, as an invited
guest of Wasief Quahtan, a Highline employee. Compl. ¶ 24.
Quahtan and the club owner began arguing over “Quahtan[’s]
[having brought] Plaintiff to the party.” Id. ¶ 25. Security
staff, and an individual named Avery Jackson, asked Plaintiff
to leave. Id. ¶ 26. Plaintiff alleges that he was “forcibly
escorted” from the club, and that Jackson became “belligerent
and aggressive” towards him. Id. ¶ 27. Shortly thereafter, a
shooting occurred outside the Highline. Id. ¶ 28.
Plaintiff believes that Jackson “ran down the street and
jumped into a black sedan ... at the time the shots were fired.”
Id. ¶ 37. He also states that there were “numerous witnesses”
to the shooting, including a “female 911 caller,” who lived
“next door” to the Highline. Id. ¶ 36. In that 911 call, the
witness said that she had seen a “man jump into a black sedan
speeding down the street” after shots were fired. Id. Based
on this call, Plaintiff believes “it was more likely that it was
[ ] Jackson who fired the shots before jumping into the black
sedan to chase Plaintiff down.” Id. ¶ 37.
*2 The shooting was investigated by Detective Michael
Miller, who interviewed Jackson. Id. ¶¶ 29–30. Jackson told
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Miller that he saw Plaintiff go to a car, “pull out a gun, and
shoot in the direction of the Highline,” and that Jackson “ran
back into the club” when shots were fired. Id. ¶¶ 30, 37.
But, Plaintiff alleges that many of Jackson's representations
to Miller contradicted his initial statements to the NYPD
officers who first responded to the shooting, as well as
other eyewitness accounts. See, e.g., ¶¶ 30–32. For instance,
Plaintiff alleges that Jackson told the responding officers
that Plaintiff was “escorted from the club because he was
intoxicated,” and that Plaintiff then “went to his car, [a Rolls
Royce] removed a firearm ... and fired several shots.” Id. ¶¶
31, 46. But, Jackson told Miller that Plaintiff was “forcibly
ejected from the club” after an altercation with its manager,
that Plaintiff was “belligerent,” and threatened that he had a
gun. Id. ¶ 32. Plaintiff also contends that Jackson's statements
were demonstrably false, because surveillance videos showed
that Jackson “was the aggressor towards Plaintiff,” and that
Plaintiff was “calm, peaceful, and cooperative” when escorted
from the club. Id. ¶¶ 32, 41.
Plaintiff alleges that Miller failed to conduct a thorough
and complete investigation of the shooting, because he did
not interview several witnesses, including the 911 caller. Id.
¶¶ 36–37, 39. Plaintiff also suggests that Miller obtained—
but disregarded—surveillance video from the inside and the
outside of the club that would have corroborated Plaintiff's
version of events. See id. ¶¶ 40–43. Plaintiff also complains
that Officer Vincent Corrando, Miller's supervisor, “approved
all [of the] reports written” in the investigation and “should
have notice[d] or known of all the inconsistencies and
contradictory statements” in Miller's reports. Id. ¶ 95. And,
Plaintiff alleges that Officer John Passementi “authorized
DNA tests,” which revealed that the DNA evidence recovered
at the scene “did not match Plaintiff.” Id. ¶ 96.
On January 9, 2016, Miller obtained a search warrant for
Plaintiff's car, based on what Plaintiff contends were “false,
misleading and/or embellished information” in the underlying
affidavits. Id. ¶ 46. The next day, Jackson picked Plaintiff's
mugshot out of a photo lineup. Id. ¶ 92. Plaintiff appears
to argue that this lineup was unduly suggestive, because
his “mugshot had a lighter background than the other
photographs.” Id. ¶ 92. The same day, Miller obtained a
warrant for Plaintiff's arrest for attempted murder, assault,
and weapons possession, and in February obtained additional
search warrants for Plaintiff's cell phone and laptop, allegedly
based, again, on false and misleading statements provided by
Miller and Jackson. Id. ¶¶ 45, 47. According to Plaintiff, no
“physical evidence [ ] tie[d] him to any part of the shooting,”
id. ¶ 81, and the police did not recover a gun or find gunshot
residue in Plaintiff's car, id. ¶ 91.
On January 22, 2016, a grand jury indicted Plaintiff for
second-degree attempted murder, first-degree assault, and
two counts of criminal possession of a weapon. See id. ¶¶
45, 51. On January 27, 2016, Plaintiff was arrested. Id. ¶ 51.
He was incarcerated until February 18, 2016, when he was
released on bail. Id. ¶ 52.
In November 2016, Plaintiff was taken back into custody on
suspicion of witness tampering, after Jackson allegedly made
a “false[ ]” report to the DA's Office that Plaintiff had tried to
contact him. Id. ¶¶ 53, 103. Plaintiff remained in jail until his
trial, which began in June 2017. Id. ¶¶ 54, 64; see also Trial
Tr. at 1, ECF No. 22-3. 2
On March 26, 2016, ADAs Shilpa Kalra and David Nasar
provided surveillance videos from the Highline to Plaintiff's
counsel. Compl. ¶ 64. Plaintiff alleges, however, that the
relevant video showed only “one (1) camera angle [out]
of 14 camera angles.” Id. He alleges that prosecutors did
not provide videos from the thirteen additional camera
angles until a week after trial commenced, even though
these videos were collected from the Highline eighteen
months earlier. Compl. ¶ 64. The trial court accordingly
granted counsel's request to review the additional videos
before conducting Jackson's cross-examination. Trial Tr. at
3. On direct examination, Jackson testified that he did not
participate in escorting Plaintiff out of the club. Id. at 47–48.
*3 On June 12, 2017, prior to Jackson's cross-examination,
Plaintiff's counsel reported to the trial court that Jackson could
be identified in the additional videos based on his clothing. Id.
at 135. Nasar acknowledged that if Jackson was indeed visible
in the videos, he was “doing a bunch of things contrary to
what he testified about.” Id.; see also id. at 136. The trial court
then determined that Jackson should be questioned, under
oath, outside the jury's presence, about his clothing on the
night in question, and whether he could identify himself on
the videos, among other matters. See id. at 146–50, 152–54.
Jackson was brought in, and warned about perjury. See id. at
154–56. Jackson identified himself on the videos wearing a
jacket and a light-colored shirt. See id. at 156–59. The court
then adjourned the proceedings. See id. at 159. When the
court resumed, Jackson, through counsel, invoked his Fifth
Amendment right against self-incrimination, id. at 176, and
the court declared a mistrial, id. at 186–88.
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Plaintiff's counsel then moved to dismiss the indictment
against Plaintiff on two grounds: first, that it was based
on false testimony, and second, because of prosecutorial
misconduct. Compl. ¶ 100. On October 17, 2017, Kalra
consented to dismissal of the indictment on the first ground,
but opposed the assertion of prosecutorial misconduct.
Dismissal Tr. at 12–13, 15–16. The court dismissed the
indictment, but the presiding judge stated he did not “see any
prosecutorial misconduct.” Id. at 16.
On March 12, 2021, over three years after the indictment
was dismissed, Plaintiff commenced this action. Compl.
Defendants move separately to dismiss the claims against
them. ECF Nos. 20, 22, 32. The Court considers each motion
in turn.
DISCUSSION
I. Legal Standard
A. Rule 12(b)(1)
An action should be dismissed pursuant to Rule 12(b)(1)
where it is apparent that the court lacks subject matter
jurisdiction—that is, the statutory or constitutional power
—to adjudicate it. See Fed. R. Civ. P. 12(b)(1); Thomas v.
Metro. Corr. Ctr., No. 09 Civ. 1769, 2010 WL 2507041, at *1
(S.D.N.Y. June 21, 2010). “A plaintiff asserting subject matter
jurisdiction has the burden of proving by a preponderance of
the evidence that it exists.” Makarova v. United States, 201
F.3d 110, 113 (2d Cir. 2000). A district court must consider
a challenge to subject matter jurisdiction before addressing
other grounds for dismissal. Rhulen Agency, Inc. v. Ala. Ins.
Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990).
On a Rule 12(b)(1) motion, the Court must accept all material
factual allegations as true. J.S. ex rel. N.S. v. Attica Cent.
Schs., 386 F.3d 107, 110 (2d Cir. 2004). It may not, however,
“draw inferences ... favorable to [the] plaintiff[ ]” on such
a motion. Id. And, the Court may consider evidence outside
the pleadings to resolve disputed factual issues relating to
jurisdiction. See id.
B. Rule 12(b)(6)
To survive a Rule 12(b)(6) motion to dismiss, “a complaint
must contain sufficient factual matter ... to ‘state a claim to
relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A plaintiff is not required to provide
“detailed factual allegations” in the complaint, but must assert
“more than labels and conclusions.” Twombly, 550 U.S. at
555. The court must accept the allegations in the complaint
as true and draw all reasonable inferences in favor of the
plaintiff. ATSI Commc'ns, Inc., 493 F.3d at 98. On a Rule
12(b)(6) motion, the court may consider only the complaint,
documents attached to the complaint, matters of which a court
can take judicial notice, or documents that the plaintiff knew
about and relied upon. See Chambers v. Time Warner, Inc.,
282 F.3d 147, 153 (2d Cir. 2002).
Additionally, because Plaintiff proceeds pro se, the Court
is obligated to construe his submissions “liberally and
interpret[ ] [them] to raise the strongest arguments they
suggest.” Triestman v. Fed. Bur. of Prisons, 470 F.3d 471, 474
(2d Cir. 2006) (citation omitted). And, on a motion to dismiss,
the Court may appropriately consider a pro se plaintiff's
opposition papers to “supplement or clarify” the allegations in
their complaint. Sommersett v. City of N.Y., No. 09 Civ. 5916,
2011 WL 2565301, at *3 (S.D.N.Y. June 28, 2011) (citation
omitted).
II. Duplicative and Improper Claims
*4 Count 7 of the complaint asserts a claim under 18 U.S.C.
§ 245 for the deprivation of rights under the color of law.
Compl. ¶¶ 148–51. But, no private right of action exists
under this federal criminal statute, and accordingly, Plaintiff
cannot raise a cognizable claim under it. See Corrado v. State
of N.Y. Univ. Stony Brook Police, No. 15 Civ. 7443, 2016
WL 4179946, at *3 (E.D.N.Y. Aug. 5, 2016). Count 7 is,
accordingly, DISMISSED with prejudice.
Further, the Court finds that Count 9 of the complaint—
fraudulent misrepresentation under § 1983, Compl. ¶¶ 157–
63—is duplicative of Count 4—deprivation of a fair trial
under § 1983, id. ¶¶ 133–37—because both seek redress
for violations of Plaintiff's liberty interests arising from the
alleged “fabrication of evidence by a government officer.” See
Zahrey v. Coffey, 221 F.3d 342, 349–50 (2d Cir. 2000). Count
9 is, accordingly, DISMISSED with prejudice.
Finally, three of Plaintiff's claims—Counts 4, 5, and 6—
include both federal constitutional claims and analogous
state constitutional claims. Compl. ¶¶ 133–47. The New
York State Constitution “provides a private right of action
where remedies are otherwise unavailable at common law or
under § 1983.” Allen v. Antal, 665 F. App'x 9, 13 (2d Cir.
2016). But, where alternative remedies are available under
the federal civil rights statutes, including § 1983, courts must
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dismiss the plaintiff's state constitutional claims. Id. Because
§ 1983 provides a remedy for all of Plaintiff's alleged federal
constitutional violations, any analogous state constitutional
claims are duplicative. Accordingly, the state constitutional
claims pleaded in Counts 4, 5, and 6 are DISMISSED with
prejudice.
III. The State's Motion
The State moves to dismiss the complaint under Rule 12(b)
(1), on the ground that the Eleventh Amendment bars
Plaintiff's claims against it by virtue of sovereign immunity.
State Mem. at 3, ECF No. 21. The Court agrees.
The Eleventh Amendment bars federal courts from exercising
jurisdiction over claims against states. U.S. CONST.
AMEND. XI. This extends to a state sued by its own citizens,
see Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 72–73 (2000),
and state agencies, see Welch v. Texas Dep't of Highways
& Pub. Transp., 483 U.S. 468, 480 (1987). There are only
limited exceptions to this rule, none of which are applicable
here.
First, a state may waive its Eleventh Amendment defense. See
Coll. Sav. Bank v. Fla. Prepaid Postsec. Educ. Expense Bd.,
527 U.S. 666, 670 (1999). Here, the State has not explicitly
waived its immunity, or consented to be sued. See State Mem.
at 3. And, by filing a motion to dismiss, rather than an answer
to the complaint, the State cannot be said to have taken actions
inconsistent with an assertion of immunity. Cf. Lapides v. Bd.
of Regents of Univ. Sys. of Ga., 535 U.S. 613, 619 (2002)
(finding waiver of immunity where state removed action to
federal court, then asserted immunity).
Second, Congress may abrogate the states’ immunity from
suit through statute. Kimel, 528 U.S. at 80. But, Congress
has not done so for claims brought under § 1983, Dube v.
State Univ. of N.Y., 900 F.2d 587, 594 (2d Cir. 1990), §
1985, see Robinson v. Allstate Ins. Co., 508 F. App'x 7, 9 (2d
Cir. 2013), or § 1986, Medina v. Cuomo, No. 15 Civ. 1283,
2015 WL 13744627, at *6–7 (N.D.N.Y. Nov. 9, 2015). In the
“absence of [the State's] consent,” accordingly, such claims
are “proscribed by the Eleventh Amendment.” Pennhurst St.
Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); see also
Trotman v. Palisades Interstate Park Comm'n, 557 F.2d 35,
40 (2d Cir. 1977).
*5 Finally, the Eleventh Amendment does not bar a “suit
against a state official when that suit seeks prospective
injunctive relief.” Seminole Tribe of Fla. v. Florida, 517
U.S. 44, 73 (1996); see also Ex parte Young, 209 U.S. 123
(1908). But here, Plaintiff seeks only money damages, and
retrospective declaratory and equitable relief. Compl. § IX.
And, Eleventh Amendment immunity shields states from
claims for money damages, Liner v. Hochul, No. 21 Civ.
11116, 2022 WL 826342, at *1 (S.D.N.Y. Mar. 17, 2022),
and “declaratory relief dealing solely with past violations,”
Medina, 2015 WL 13744627, at *7. Although Plaintiff
demands “affirmative relief necessary to eradicate the effects
of Defendants’ unlawful practices,” see Compl. § IX(B), he
does not allege any present violations of his rights, see id. See
Medina, 2015 WL 13744627, at *7 (noting that “declaratory
relief where there is no present violation, is also barred under
the Eleventh Amendment”). Accordingly, this exception does
not preclude the State's immunity defense in this matter.
Where a defendant is found to have sovereign immunity from
suit, the Court is deprived of subject-matter jurisdiction under
Rule 12(b)(1). McGinty v. New York, 251 F.3d 84, 89, 101
(2d Cir. 2001). Accordingly, because the State is immune
from liability on all of Plaintiff's claims under the Eleventh
Amendment, its motion to dismiss is GRANTED. And,
because amendment would be futile, Plaintiff's claims against
the State are DISMISSED with prejudice to renewal. 3
IV. The DA Defendants’ Motion
Plaintiff raises claims against the DA Defendants “in their
individual capacities” 4 arising inter alia under § 1983, §
1985, and § 1986, 5 based on three main factual assertions.
See generally Compl. First, Plaintiff alleges that Kalra and
Nasar wrongfully chose to prosecute him, despite the lack of
physical evidence tying him to the shooting. Compl. ¶ 81.
Second, Plaintiff asserts that Kalra and Nasar intentionally
withheld exculpatory surveillance videos until the middle of
his trial, see id. ¶¶ 75–76, 78. Third, Plaintiff alleges that the
“[p]rosecuting [a]ttorneys” “coached” Jackson to give false
testimony to the grand jury that indicted him. Id. ¶¶ 50–51.
A. Absolute Immunity
*6 The DA Defendants argue that Plaintiff's claims are
barred by absolute and qualified prosecutorial immunity. DA
Defs. Mem. at 10–12, ECF No. 22-1. To the extent Plaintiff's
claims are predicated on his allegations that Kalra and Nasar
wrongfully chose to prosecute him and withheld allegedly
exculpatory evidence, the Court agrees.
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1. Federal Claims
Although § 1983 has no immunities on its face, the Supreme
Court has held that, when Congress initially enacted the
statute, it did not intend to abrogate existing immunities
established at common law. See Imbler v. Pachtman, 424
U.S. 409, 418 (1976). Thus, both absolute and qualified
immunity are applicable defenses to § 1983 claims. See
Bernard v. Cty. of Suffolk, 356 F.3d 495, 502 (2d Cir.
2004). Prosecutors are entitled to “absolute immunity” from
liability when they function as advocates for the state in
circumstances “intimately associated with the judicial phase
of the criminal process.” Imbler, 424 U.S. at 430. But,
prosecutors are entitled only to “qualified immunity” when
they perform “investigative functions” normally undertaken
by a police officer. Buckley v. Fitzsimmons, 509 U.S. 259,
273 (1993). Under the doctrine of qualified immunity, an
official is immune from liability “only when in light of clearly
established law and the information the official possesses, it
was objectively reasonable for him to think that his actions
were lawful.” Hill v. City of N.Y., 45 F.3d 653, 663 (2d Cir.
1995).
Courts employ a “functional approach” to determine the
availability of absolute immunity, looking to “the nature of
the function performed, not the identity of the actor who
performed it.” Buckley, 509 U.S. at 269 (citations omitted).
And, although the party claiming absolute immunity bears the
burden of establishing its applicability, see Doe v. Phillips, 81
F.3d 1204, 1209 (2d Cir. 1996), if the court finds that that the
conduct at issue is covered by absolute immunity, then the
actor is shielded from liability for damages no matter “how[ ]
erroneous the act ... and how[ ] injurious ... its consequences.”
Cleavinger v. Saxner, 474 U.S. 193, 199–200 (1985) (citation
omitted); see also Anilao v. Spota, No. 19 Civ. 3949, 2022
WL 697663, at *4 (2d Cir. Mar. 9, 2022).
Plaintiff first alleges that Kalra and Nasar improperly chose
to prosecute him, despite a lack of physical evidence tying
him to the crime. Compl. ¶ 81. But, prosecutors are immune
from suit for decisions regarding “whether and when to
prosecute,” Imbler, 424 U.S. at 430–31 n.32–33, even where
they may prosecute an innocent individual, Schmueli, 424
F.3d at 237–39. Kalra and Nasar are, therefore, entitled to
absolute immunity to the extent Plaintiff's claims are based on
their decision to prosecute him. 6
Second, Plaintiff alleges that Kalra and Nasar intentionally
withheld exculpatory surveillance videos until the middle
of trial, Compl. ¶¶ 75–76, 78. But again, prosecutors are
entitled to absolute immunity for all decisions taken “in
their prosecutorial capacity, including decisions regarding
which evidence should be disclosed to a criminal defendant.”
Newson v. City of N.Y., No. 16 Civ. 6773, 2019 WL
3997466, at *3 (E.D.N.Y. Aug. 23, 2019). This is true
even where information was deliberately withheld, Ying Li
v. City of New York, 246 F. Supp. 3d 578, 640 (E.D.N.Y.
2017), or where such withholding violated the defendant's
constitutional rights, see Warney v. Monroe Cnty., 587 F.3d
113, 125 (2d Cir. 2009). Accordingly, Kalra and Nasar have
absolute immunity to the extent any of Plaintiff's claims are
predicated on a violation under this factual allegation.
*7 Finally, Plaintiff alleges that the “Prosecuting Attorneys”
coached Jackson to give false testimony to the grand jury,
which then formed the basis for his indictment. Compl. ¶¶
50–51. Prosecutors generally only have qualified immunity
for actions taken before there is probable cause to arrest
a defendant, because they are performing an investigative
function, rather than acting as advocates. See Hill, 45 F.3d
at 661; Buckley, 509 U.S. at 273. And, although “knowingly
presenting evidence” to a grand jury is considered the “core
of a prosecutor's role as an advocate,” Bernard, 356 F.3d
at 503, the Second Circuit has distinguished between a
prosecutor's knowing presentation of false evidence to the
grand jury—which is still entitled to absolute immunity
—from a prosecutor's deliberate fabrication of evidence,
Hill, 45 F.3d at 662–63 (finding that where prosecutor
deliberately manufactured evidence to establish probable
cause for plaintiff's arrest, his conduct was investigatory,
regardless of whether, when the evidence was manufactured,
the prosecutor intended to present it to the grand jury). In
Hill, the Second Circuit also established that “when it may not
be gleaned from the complaint whether the conduct objected
to was performed by the prosecutor in an advocacy or an
investigatory role, the availability of qualified immunity from
claims based on such conduct cannot be decided as a matter
of law on a motion to dismiss.” Id. at 663.
As in Hill, Plaintiff alleges that the prosecutors deliberately
participated in the fabrication of false evidence by coaching
a material witness to give perjured testimony to the grand
jury, so that the jury would return an indictment. Compl.
¶¶ 50–51. Allegations that the prosecution falsified evidence
are distinct from allegations that the prosecution merely
presented evidence they knew to be false. Compare Hill,
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45 F.3d at 662–63, with Urrego v. United States, No. 00
Civ. 1203, 2005 WL 1263291, at *2 (E.D.N.Y. May 27,
2005) (prosecutors receive absolute immunity for claims
predicated on “false presentation of evidence to a grand
jury”). And, considering the Court's obligation to liberally
construe Plaintiff's pleadings and afford every reasonable
inference in his favor at this stage, the Court concludes the
DA Defendants have not established that they were acting as
“advocates,” rather than “investigators,” when they engaged
in the challenged conduct. Hill, 45 F.3d at 660 (officials
asserting absolute immunity bear the burden of establishing
it for the action in question). And, accepting the facts in
the complaint as true, the DA Defendants would not be
entitled to even qualified immunity, because it is objectively
unreasonable for them to have knowingly coached a witness
to give false testimony before a grand jury. See Cipolla v.
Cty. of Rensselaer, 129 F. Supp. 2d 436, 456 (N.D.N.Y.
2001) (not “objectively reasonable” to believe presenting or
soliciting perjured testimony did not violate plaintiff's clearly
established rights). Accordingly, to the extent that Counts 3, 4,
5, 6, and 8 are predicated on the claim that the DA Defendants
coached Jackson to give false testimony, they are not entitled
to either absolute or qualified immunity.
2. State Claims
Plaintiff raises state-law claims against the DA Defendants
in Counts 10 and 14 of the complaint. Compl. ¶¶ 164–67,
182–85. As with federal law, under New York law, a district
attorney prosecuting crime is performing a quasi-judicial
function, and, as such, is entitled to absolute immunity.
Arteaga v. State, 72 N.Y.2d 212, 217 n.1 (N.Y. 1988). But,
unlike federal law, prosecutors are absolutely immune for
official acts in both the prosecution and investigation of
criminal charges. See Moore v. Dormin, 173 Misc. 2d 836,
843, (N.Y. Sup. Ct. 1997), aff'd as modified, 252 A.D.2d 421
(N.Y. App. Div. 1998). A prosecutor does not receive absolute
immunity, however, “when knowingly acting in violation of
law.” Id. As with Plaintiff's federal claims, to the extent his
state law claims against the DA Defendants are predicated
on his allegations that they improperly targeted him for
prosecution or deliberately withheld exculpatory evidence,
the DA Defendants are entitled to absolute immunity. But,
construing Plaintiff's third allegation liberally, he essentially
claims that the prosecutors knowingly acted in violation of
the law by suborning perjury. The Court cannot conclude,
therefore, that the DA Defendants are entitled to absolute
immunity as a matter of state law to the extent Counts 10 and
14 rest on this allegation. 7
B. Time Bar
*8 The DA Defendants argue that Plaintiff's claims are
untimely. DA Defs. Mem. at 6–8. With the exception of
Counts 3 (§ 1983 malicious prosecution) and 4 (§ 1983
deprivation of a fair trial), the Court agrees.
1. Federal Claims
Claims arising under §§ 1983 and 1985, when brought in
this district, are governed by New York's three-year statute of
limitations for personal injury actions, N.Y. C.P.L.R. § 214;
Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002)
(citation omitted); Hernandez-Avila v. Averill, 725 F.2d 25, 27
n.3 (2d Cir. 1984). But, claims under § 1986 have a one-year
statute of limitations, see 42 U.S.C. § 1986. Federal courts
are also obligated to apply New York's tolling rules. Bd. of
Regents of Univ. of the State of N.Y. v. Tomanio, 446 U.S. 478,
483 (1980).
On March 20, 2020, then-Governor Andrew Cuomo issued
Executive Order 202.8, which tolled the statute of limitations
in New York in light of the COVID-19 pandemic. 9
N.Y.C.R.R. § 8.202.8. Subsequent orders extended the tolling
period until November 3, 2020. Exec. Order 202.67 (Oct. 4,
2020). Contrary to the DA Defendants’ assertion, see DA
Defs. Mem. at 7–8, other courts in this district have uniformly
concluded that Executive Order 202.8 applies to federal cases
applying New York's statute of limitations, including for §
1983 claims. See, e.g., Lewis v. Westchester Cnty., No. 20 Civ.
9017, 2021 WL 3932626, at *2 n.3 (S.D.N.Y. Sept. 2, 2021). 8
The Court concludes, therefore, that Executive Order 202.8
tolls the statute of limitations for Plaintiff's §§ 1983 and 1985
claims, which apply New York's three-year limitations period
—but not Plaintiff's § 1986 claims, because the applicable
statute of limitations for that claim is found in the federal
statute itself.
Section 1983 claims based on malicious prosecution or
deprivation of a fair trial accrue when the underlying criminal
action against the plaintiff is “favorably” terminated, rather
than at the time of arrest. Sharp v. Cnty. of Putnam, No.
18 Civ. 780, 2019 WL 2250412, at *4 (S.D.N. Y May
24, 2019); Shabazz v. Kailer, 201 F. Supp. 3d 386, 394
(S.D.N.Y. 2016). The dismissal of an indictment constitutes
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the termination of a proceeding. Sharp, 2019 WL 2250412,
at *4–5. Applying these principles, Plaintiff's § 1983 claims
for malicious prosecution (Count 3) and denial of a fair trial
(Count 4) accrued on October 17, 2017, the date the trial
court dismissed the indictment against him. Dismissal Tr. at
5. And, although the statute of limitations would have expired
on October 17, 2020, New York's COVID-19 tolling rule
extended the limitations period until June 2, 2021. 9 Because
Plaintiff commenced this suit on March 12, 2021, Counts 3
and 4 are timely.
*9 By contrast, a § 1983 abuse-of-process claim accrues
when the criminal process is “set in motion—typically
at arrest—against the plaintiff.” Hadid v. City of N.Y.,
No. 15 Civ. 19, 2015 WL 7734098, at *5 (E.D.N.Y.
Nov. 30, 2015), aff'd 730 F. App'x 68 (2d Cir. 2018).
Because Plaintiff was arrested on January 27, 2016, the
relevant statute of limitations for Count 8, § 1983 abuse
of process, expired on January 27, 2019, and COVID-19
tolling provisions are, therefore, inapplicable. Accordingly,
this claim is DISMISSED with prejudice as untimely.
Section 1985(3) conspiracy claims accrue “at the time of
the events that caused the injury.” Panetta v. Cassel, 20
Civ. 2255, 2020 WL 2521533, at *5 (S.D.N.Y. May 18,
2020). The existence of a conspiracy “does not postpone the
accrual of causes of action arising out of the conspirators’
separate wrongs. It is the wrongful act, not the conspiracy,
which is actionable, whether the act is labelled a tort or a
violation of [federal civil rights statutes].” Singleton v. City
of N.Y., 632 F.2d 185, 192 (2d Cir. 1980) (citation omitted).
As discussed, the single allegation that escapes absolute
immunity—and therefore is the only remaining basis for
Plaintiff's claims against the DA Defendants—is that those
defendants suborned perjury in the grand jury proceedings
by coaching Jackson to give false testimony, resulting in
Plaintiff's indictment and arrest. Plaintiff's § 1985(3) claim—
Count 5 of the complaint—accrued no later than January 27,
2016, the date of his arrest—which again, applying a three-
year statute of limitations untouched by COVID-19 tolling
provisions, renders it untimely. Count 5 is, accordingly,
DISMISSED with prejudice.
Similarly, Count 6, Plaintiff's § 1986 conspiracy claim,
accrued when Plaintiff knew, or had reason to know of the
harm or injury. Young v. Lord & Taylor, LLC, 937 F. Supp. 2d
346, 354 (E.D.N.Y. 2013). Plaintiff knew of the injury by his
arrest date. Applying § 1986’s one-year statute of limitations,
any § 1986 claim Plaintiff brought after January 27, 2017,
is untimely. 10 Accordingly, Count 6 is DISMISSED with
prejudice.
2. State Claims
Counts 10 and 14 of the complaint—both state common-
law claims—are also time-barred. “Under New York law,
a plaintiff asserting tort claims against the City or its
employees,” as well as against municipal officials like district
attorneys, “must file a notice of claim within [90] days after
the incident giving rise to the claim and commence the action
within a year and [90] days from the date of the incident.”
Brown v. City of N.Y., No. 18 Civ. 3287, 2020 WL 1819880,
at *7 (S.D.N.Y. Apr. 9, 2020) (citing N.Y. Gen. Mun. Law
§§ 50-e(1)(a), 50-i(1)); see also Gonzalez v. City of N.Y., No.
94 Civ. 7377, 1996 WL 227824, *2 (S.D.N.Y. May 3, 1996).
Plaintiff asserts that he filed the requisite notice of claim with
the City on January 16, 2018—720 days after his arrest, and
91 days after the dismissal of the indictment. Compl. ¶ 16.
Plaintiff did not commence this action until March 12, 2021.
See Compl. Therefore, Plaintiff neither timely filed a notice of
claim within 90 days, nor did he commence this lawsuit within
a year and 90 days after the date the indictment was dismissed
—the last date that could possibly serve as the trigger for the
statute of limitations. Failure to comply with the mandatory
notice of claim requirements is a basis for dismissal of a
plaintiff's claims. Warner v. Vill. of Goshen Police Dep't, 256
F. Supp. 2d 171, 175 (S.D.N.Y. 2003). The Court, accordingly,
concludes that Counts 10 and 14 are also time-barred, and
therefore, these claims are DISMISSED with prejudice.
C. Personal Involvement
*10 Liability under § 1983 must be premised on a
defendant's direct, personal involvement in the alleged
violations. See Tangreti v. Bachmann, 983 F.3d 609, 618 (2d
Cir. 2020). A defendant cannot be held vicariously liable
under § 1983 for employing or supervising an employee
that violated the plaintiff's rights—rather, a plaintiff must
plead “that each Government-official defendant, through
the official's own individual actions, has violated the
Constitution.” Iqbal, 556 U.S. at 676.
As to Vance, Plaintiff only alleges that he served as the DA
of New York County. Compl. ¶ 11. Vance may not be held
liable for merely employing or supervising Kalra and Nasar.
See Iqbal, 556 U.S. at 676. And, Plaintiff neither pleads that
Vance was personally involved in investigating the shooting
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or prosecuting him, nor is there any evidence in the record to
support such a finding. Accordingly, Plaintiff's claims against
Vance are DISMISSED with prejudice, because given the lack
of evidence of Vance's personal involvement, the Court finds
that granting leave to amend would be futile. Hill v. Curcione,
657 F.3d 116, 123–24 (2d Cir. 2011).
Plaintiff similarly fails to specify Kalra and Nasar's personal
involvement in his claimed constitutional violations, stating
only that the “Prosecuting Attorneys” coached Jackson to
provide testimony. Compl. ¶ 50. But, given Plaintiff's position
as a pro se litigant, the Court recognizes that there may be
additional information made available to Plaintiff through
discovery that would enable Plaintiff to assert claims directly
against Kalra and Nasar, such as if, for example, either
of them prepared Jackson to testify. By April 15, 2022,
accordingly, the DA Defendants shall, through counsel,
inform Plaintiff and the Court whether Kalra or Nasar
prepared Jackson to testify before the grand jury with respect
to any potential criminal charges against Plaintiff, and/or
conducted an examination of Jackson before the grand jury.
No later than May 16, 2022, Plaintiff shall file an amended
complaint, alleging with specificity Kalra and Nasar's direct,
personal involvement in either “coaching” Jackson to testify
falsely before the grand jury, or deliberately eliciting false
testimony from Jackson during the grand jury proceedings.
In addition, because, as detailed infra at 25–26, the Court
finds that Plaintiff's malicious prosecution claim is deficient
because he failed to allege that the underlying criminal
proceedings terminated in his favor, an argument raised by
the City Defendants but not the DA Defendants, any amended
malicious prosecution claim that Plaintiff wishes to assert
against Kalra and Nasar should also address this issue. Failure
to do so shall result in dismissal with prejudice of Plaintiff's
remaining claims against Kalra and Nasar.
V. City's Motion to Dismiss
Plaintiff brings claims against the City Defendants, on the
grounds that (1) Miller failed to conduct a thorough and
complete investigation of the shooting, by not interviewing
several witnesses, including the 911 caller, Compl. ¶¶ 36–37,
39; (2) in his investigation, Miller obtained—but disregarded
—surveillance video from both the inside and outside of
Highline Ballroom, id. ¶¶ 40–43; (3) that Miller “used his own
added facts and embellished statements” in his investigative
reports to target Plaintiff as the sole suspect in the shooting, id.
¶ 44, see also ¶ 39; (4) that Corrando, as Miller's supervisor,
approved his investigative reports but failed to notice the
inconsistencies and contradictions therein, id. ¶ 95; and (5)
that Passamenti “authorized DNA tests,” which revealed that
the DNA evidence recovered at the scene “did not match
Plaintiff,” id. ¶ 96. The Court addresses each remaining 11
cause of action.
A. Time Bar
1. Section 1983 Claims
*11 Plaintiff brings claims under § 1983 for unlawful search
and seizure (Count 1); false arrest (Count 2); malicious
prosecution (Count 3); deprivation of a fair trial (Count 4);
and abuse of process (Count 8). As noted, § 1983 claims are
subject to a three-year statute of limitations in this district. See
supra at 15. And, for the reasons discussed with respect to
the DA Defendants, the Court concludes that Counts 3 and 4
were timely pleaded. See supra at 16–17.
A § 1983 unlawful search and seizure claim, however,
accrues on the date the allegedly unlawful search occurred.
McClanahan v. Kelly, No. 12 Civ. 5326, 2014 WL 1317612, at
*4 (S.D.N.Y. Mar. 31, 2014). Plaintiff alleges that his property
was searched on January 9, February 12, and February 15,
2016. Compl. ¶¶ 46–47. The applicable statute of limitations,
therefore, expired no later than February 15, 2019, nearly
two years before Plaintiff brought suit. Plaintiff's claims
are, therefore, untimely, and Count 1 is DISMISSED with
prejudice as time-barred.
Section 1983 false arrest claims and abuse-of-process claims
accrue from the date of Plaintiff's arrest. See Rivera v. City
of N.Y., No. 16 Civ. 9709, 2019 WL 252019, at *4 (S.D.N.Y.
Jan. 17, 2019) (false arrest); Anderson v. Cnty. of Putnam,
No. 14 Civ. 7162, 2016 WL 297737, at *3 (S.D.N.Y. Jan. 22,
2016) (abuse-of-process). Plaintiff was arrested on January
27, 2016, and therefore, any such claims should have been
brought no later than January 27, 2019. Counts 2 and 8 are,
accordingly, DISMISSED with prejudice as untimely.
2. Sections 1985(3) and 1986 Claims
Liberally construing the complaint, in Count 5, Plaintiff
sets forth a conspiracy cause of action under § 1985(3),
alleging that the City Defendants engaged in a conspiracy to
have Plaintiff wrongfully convicted, see Compl. ¶ 97. This
claim appears predicated on the NYPD investigation into the
January 6, 2016 shooting, and Miller's alleged embellishment
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of information, and focus on Plaintiff as the sole suspect.
Id. ¶¶ 36–37, 39, 46, 90. Plaintiff also raises a failure-to-
intervene claim under § 1986 (Count 6), seemingly arising
from Corrando's alleged failure to notice the inconsistencies
and contradictory statements allegedly included in Miller's
police reports. Id. ¶ 95.
Section 1985(3) claims accrue “at the time of the events that
caused the injury,” and are subject to a three-year statute
of limitations, Panetta, 2020 WL 2521533, at *5. Section
1986 claims based on a failure to intervene accrue when the
defendant fails to intervene, Thomas v. City of Troy, 293 F.
Supp. 3d 282, 303 (N.D.N.Y. 2018), and must be brought
within one year, see 42 U.S.C. § 1986. Plaintiff's claims
each began accruing no later than January 27, 2016, the date
of Plaintiff's arrest, because Plaintiff does not suggest that
any investigation took place after that date. The applicable
limitations period extends no later than January 27, 2019,
for Plaintiff's § 1985(3) claim, and January 27, 2017 for
Plaintiff's § 1986 claim, two and four years, respectively,
before the complaint was filed. Counts 5 and 6 are, therefore,
DISMISSED with prejudice as time-barred.
3. State Claims
To the extent Plaintiff's state common-law claims, asserting
various types of negligence, arise from the NYPD
investigation into the shooting on January 6, 2016; the
searches of Plaintiff's property on January 9, February 12,
and February 15, 2016; and Plaintiff's arrest on January 27,
2016, Plaintiff was required to file a notice of claim within
90 days of those events, see N.Y. Gen. Mun. L. § 50-e. As
noted, Plaintiff did not file a notice of claim with the City
until January 16, 2018—one year and eleven months after
the latest of those dates. Compl. ¶ 16. Accordingly, each of
Plaintiff's negligence claims (Counts 10–14) are DISMISSED
with prejudice. 12
B. Claim Against the City 13
*12 The Court reads Plaintiff's complaint as claiming, under
Monell v. Department of Social Services, 436 U.S. 658,
that the City is liable for the allegedly unlawful conduct
of the named NYPD officers. See Compl. ¶ 179. The City
Defendants argue that Plaintiff does not include sufficient
factual allegations to support a municipal liability claim. City
Defs. Mem. at 20–22, ECF No. 34. The Court agrees.
To bring a municipal liability claim under § 1983, the plaintiff
must “prove the existence of a municipal policy or custom,”
then demonstrate a causal connection between the policy
and the alleged constitutional deprivation. Vippolis v. Vill. of
Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985). Plaintiff pleads
neither, offering only conclusory allegations that the City
Defendants “engaged in a pattern and practice to commit
the aforementioned unlawful acts,” Compl. ¶ 179, and that
a policy is “inferred” because the City Defendants “took
no steps to reprimand or discharge the officers involved,”
ECF No. 39 at 27. These allegations cannot, without more,
state a claim for municipal liability. E.g., Fleming v. City
of New York, No. 18 Civ. 4866, 2020 WL 5522871, at *6
(S.D.N.Y. July 23, 2020). Because Plaintiff offers no facts
which suggest that the deficiencies in his Monell claim may
be cured by amendment, any such claim is DISMISSED with
prejudice. Strong v. City of Syracuse, No. 16 Civ. 1054, 2020
WL 137250, at *3–4 (N.D.N.Y. Jan. 13, 2020) (dismissing
Monell claim, with prejudice, given “[p]laintiff's conclusory
allegations are insufficient to plausibly infer a custom or
policy to support municipal liability”).
C. Passamenti's Personal Involvement
Plaintiff's remaining claims are Counts 3 (malicious
prosecution) and 4 (denial of a fair trial). As to Defendant
Passamenti, Plaintiff alleges that Passamenti authorized DNA
tests, which revealed that the DNA evidence recovered at the
scene “did not match Plaintiff.” Compl. ¶ 96. Plaintiff does
not allege that Passamenti was involved in falsification of
evidence, that he attempted to hide the results of the relevant
DNA tests, or that he was otherwise responsible for, or even
aware of, the alleged “embellishment” of statements in the
NYPD's investigative reports. Plaintiff has not, therefore,
sufficiently alleged Passamenti's direct, personal involvement
in any constitutional violations under § 1983. Tangreti, 983
F.3d at 618. And, because the record does not establish
that Plaintiff could cure this pleading defect by amendment,
Plaintiff's claims against Passamenti are DISMISSED with
prejudice.
D. Malicious Prosecution
A claim for malicious prosecution under § 1983—Count
3 of the complaint—requires the plaintiff to show that the
criminal proceedings against him were terminated “in his
favor,” typically by an acquittal or another form of dismissal
of the charges on the merits. Janetka v. Dabe, 892 F.2d 187,
189–90 (1989). The City Defendants argue that Plaintiff has
not made such a showing. City Defs. Mem. at 10, 14–17. The
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Court agrees. Plaintiff asserts—citing no authority in support
—that the dismissal of the indictment was a “termination
in his favor” because dismissals that “include constitutional
privilege assertions are considered favorable terminations.”
ECF No. 39 at 7, 10 (quotation marks omitted). It is not clear
what Plaintiff means by this. And, from the Court's review
of the state court transcript, it appears that, in dismissing
the indictment, neither the prosecution, nor the court, made
any statements indicating a belief in Plaintiff's innocence. See
Lanning v. City of Glens Falls, 908 F.3d 19, 28 (2d Cir. 2018)
(looking to the “reasons ... stated on the record for dismissing
the charges” in determining whether the termination of
the criminal case was in plaintiff's favor). Indeed, Kalra
expressly declined to concede that Plaintiff was innocent,
instead reaffirming her belief that Plaintiff “was the shooter.”
Dismissal Tr. at 15. The presiding judge similarly stated on
the record that dismissal of the indictment was warranted even
though he did not “see any prosecutorial misconduct.” Id. at
16. The dismissal of the indictment, therefore, left open the
question of Plaintiff's guilt or innocence, and Plaintiff cannot,
accordingly, assert on that basis alone, that the proceedings
were terminated in his favor.
*13 The Court notes, however, that because four years
have passed since the dismissal of the indictment, Plaintiff
may be able to plead additional facts from that time that
support this relevant element of his claim. There is no
information before the Court as to whether, for example,
Plaintiff was ever informed by the prosecutors that he had
been cleared of wrongdoing, whether Jackson or anyone
else was later prosecuted for the shooting, or whether the
state court made any further statements regarding the merits
of the charges against Plaintiff. Count 3 is, accordingly,
DISMISSED without prejudice, to provide Plaintiff with an
opportunity to plead additional facts to support this claim.
E. Denial of Fair Trial
To state a claim under § 1983 for denial of a fair trial based on
the fabrication of evidence by a police officer—Count 4 of the
complaint—a plaintiff must allege that “an (1) investigating
official (2) fabricates information (3) that is likely to influence
a jury's verdict, (4) forwards that information to prosecutors,
and (5) the plaintiff suffers a deprivation of life, liberty, or
property as a result.” Garnett v. Undercover Officer C0039,
838 F.3d 265, 277 (2d Cir. 2016) (citation omitted). The
plaintiff need not show a favorable termination indicative
of innocence to state such a claim. Smalls v. Collins, 10
F. 4th 117, 142–43 (2d Cir. 2021). The City Defendants
argue that Plaintiff has failed to show a deprivation of his
liberty interests because there was probable cause for his
prosecution, in the form of corroborative ballistics evidence.
City Defs. Mem. at 16 (citing Dismissal Tr. at 15); City Defs.
Reply at 6–7, ECF No. 46.
Probable cause is not a complete defense to a fair trial claim.
Torres v. City of N.Y., No. 16 Civ. 6719, 2017 WL 4325822, at
*5 (E.D.N.Y. Sept. 27, 2017) (noting that where “independent
probable cause exists for the prosecution,” a plaintiff must
“show that the misconduct caused some deprivation above
and beyond the fact of the prosecution itself.” (citation
omitted)). Plaintiff plausibly alleges that Miller fabricated
and “embellished” Jackson's statements in his investigative
report; that Miller provided these reports to prosecutors to
secure Plaintiff's indictment and arrest; and that Corrando,
as Miller's supervisor, reviewed and approved these reports
without identifying any “embellishments” or obvious factual
contradictions. See Compl. ¶¶ 44–49, 95. On a motion to
dismiss, the Court cannot take as true the City Defendants’
factual assertion that, regardless of any alleged fabrications
in Miller's reports, the prosecution had independent ballistics
evidence to satisfy the probable cause standard. Compare City
Defs. Reply at 6–7, with ECF No. 39 at 9–12. It cannot,
therefore, find as a matter of law, that the City Defendants had
probable cause for Plaintiff's indictment and prosecution. See
Bullard v. City of N.Y., 240 F. Supp. 2d 292, 299 (S.D.N.Y.
2003). The Court concludes, therefore, that Plaintiff has
sufficiently alleged a § 1983 denial of fair trial claim against
Miller and Corrando. The City Defendants’ motion to dismiss
Count 4 of the complaint is, accordingly, DENIED.
CONCLUSION
For the reasons stated above, the State's motion to dismiss,
ECF No. 20, is GRANTED, and Plaintiff's claims against
the State are DISMISSED. The DA Defendants’ motion
to dismiss, ECF No. 22, is GRANTED—Plaintiff's claims
against Vance are DISMISSED; and his claims against Kalra
and Nasar are DISMISSED except for Counts 3 and 4, which
are DISMISSED without prejudice to renewal in an amended
complaint. By April 15, 2022, the DA Defendants shall make
the disclosures directed in this order. The City Defendants’
motion to dismiss is DENIED as to Count 4, and GRANTED
in all other respects. Plaintiff's claims against Passamenti, the
NYPD, and the City are DISMISSED; and his claims against
Miller and Corrando are DISMISSED, except for Count 3,
which is DISMISSED without prejudice to renewal in an
amended complaint.
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*14 By May 16, 2022, Plaintiff shall file an amended
complaint as to Counts 3 and 4, with the additional factual
allegations detailed in this order. The Clerk of Court is
directed to terminate the motions pending at ECF Nos. 20,
22, and 32, and mail a copy of this order to Plaintiff pro se.
The Court shall separately provide Plaintiff with a copy of all
unpublished cases cited herein.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2022 WL 992885
Footnotes
1 Unless otherwise stated, the following facts are taken from the complaint and assumed, for purposes of this
motion, to be true. ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007).
2 The relevant state court trial transcripts were submitted by the DA Defendants in their motion to dismiss. See
Trial Tr.; Dismissal Tr., ECF No. 22-4. The Court may take judicial notice of these transcripts as a matter of
public record. See Shmueli v. City of N.Y., 424 F.3d 231, 233 (2d Cir. 2005).
3 Because the Court concludes that it lacks jurisdiction over Plaintiff's claims against the State under Rule
12(b)(1), it need not reach the State's alternative ground for dismissal, that Plaintiff's § 1983 and § 1985
claims must be dismissed because the State is not a suable “person” within the meaning of those statutes.
State Mem. at 3–4.
4 Plaintiff makes this clarification for the first time in his opposition papers. ECF No. 28 at 14. The Court notes
that because, as discussed, the Eleventh Amendment bars suits against states, see supra at 8–10, when
a defendant is sued in his official capacity, the court treats the suit as one against the “entity of which an
officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165–66 (1985) (quoting Monell v. N.Y.C. Dep't of
Soc. Serves, 436 U.S. 658, 690 n.55 (1978)). And, where a “district attorney or an assistant district attorney
acts as a prosecutor, she is an agent of the State, and therefore immune from suit in her official capacity.”
D'Alessandro v. City of N.Y., 713 F. App'x 1, 8 (2d Cir. 2017). Accordingly, any claims Plaintiff may raise
against the DA Defendants in their “official capacity” would be precluded by immunity under the Eleventh
Amendment. See id.
5 Although Plaintiff asserts that he pleads each of his claims against “all Defendants,” even a liberal read of
the complaint makes clear that certain of Plaintiff's claims cannot implicate the DA Defendants’ conduct,
including counts 1 (unreasonable search and seizure); 2 (false arrest/imprisonment); 11 (personal injury);
12 (property damage) and 13 (negligent hiring, training, supervision, and discipline of officers). Compl. ¶¶
117–27, 168–81. As the Court has already dismissed Counts 7 and 9, see supra at 7–8, it only considers
Counts 3 (malicious prosecution); 4 (deprivation of fair trial); 5 (conspiracy); 6 (failure to intervene); 8 (abuse
of process); 10 (negligent misrepresentation); and 14 (negligent infliction of emotional distress) against the
DA Defendants.
6 Because the Court finds that the DA Defendants are entitled to absolute immunity on any claims arising from
the withholding of exculpatory evidence, the Court does not reach their alternative argument that Plaintiff fails
to state a claim for an alleged Brady violation, see DA Defs. Mem. at 12–15.
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7 As noted, the parallel state-law constitutional claims in Counts 4, 5, and 6 are dismissed with prejudice. See
supra at 8.
8 The DA Defendants’ reliance on Johnson v. Fargione is unavailing. In that case, the court found that the
plaintiff's claims, which had expired weeks before the issuance of Executive Order 202.8, could not “be said
to have been tolled” by that Executive Order, as the time for filing had already passed and the plaintiff had
offered no excuse for the delay. 20 Civ. 764, 2021 WL 1406683, at *3 (N.D.N.Y. Feb. 17, 2021), report and
recommendation adopted 2021 WL 1404554 (Apr. 14, 2021). Although Johnson is instructive with respect
to how claims that may have expired before the issuance of Executive Order 202.8 (i.e., before March 20,
2020) should be treated, it does not address the applicability of the Executive Order to federal claims that,
like Plaintiff's, had not yet expired by that date.
9 Executive Order 202.8 tolled applicable limitations periods from March 20, 2020 to November 3, 2020. The
order amounted to a “pause” in the limitations period—that is, during the duration of the toll, the clock to file
[did] not run,” but “[o]nce the toll end[ed,] the clock resume[d] from where it was when the toll began, and the
plaintiff ha[d] the rest of his limitations period to file his complaint,” Johnston v. City of Syracuse, No. 20 Civ.
1497, 2021 WL 3930703, at *6 (N.D.N.Y. Sept. 2, 2021). Because, as of March 20, 2020, when the clock
was “paused,” Plaintiff had 211 days remaining before the expiration of the limitations period on October 17,
2020, the Court calculates 211 days after November 3, 2020, as the end of the relevant limitations period
when tolled—which is June 2, 2021.
10 Even assuming, arguendo, that Plaintiff would not have had reason to know of the harm or injury that was
the basis of his Section 1986 claim until the date the indictment was dismissed (October 17, 2017), the claim
would still be time-barred, because this would only extend the limitations period to October 17, 2018—nearly
three years before the commencement of this action.
11 As noted, the Court dismissed Count 7 for relying on a statute that does not provide a private right of action,
see supra at 7; Count 9 for being duplicative of Count 4, see id. at 8, and all the state constitutional claims
Plaintiff asserts analogously to his federal constitutional claims, see id.
12 As discussed supra at 18–19, even if the Court construes Plaintiff's notice of claim as timely based on the
dismissal of Plaintiff's criminal case on October 17, 2017, Plaintiff still failed to commence this action within
one year and 90 days, as required by statute. This provides an alternative ground for dismissal.
13 Plaintiff also names the NYPD as a defendant. See Compl. But, the NYPD is a non-suable agency of the
City, and thus, to the extent any of Plaintiff's claims are brought against it, they fail as a matter of law. See
Jenkins v. City of N.Y., 478 F.3d 76, 93 n.19 (2d Cir. 2007). Any such claims are, accordingly, DISMISSED
with prejudice.
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Rolle v. McCarthy, Not Reported in F.Supp.2d (2005)
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2005 WL 5885366
Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
Nehemiah D. ROLLE, Plaintiff,
v.
Elise McCARTHY, personally and individually
in her capacity as an Assistant District Attorney,
Chief of the Felony Screening Bureau, Robert
Cavallo, personally and individually and in his
official capacity as an Assistant District Attorney,
John Doe, personally and individually and in his
official capacity as an Assistant District Attorney, and
Nassau County, a Municipal Corporation, Defendants.
No. CV 02-4398(DRH)(ETB).
|
June 21, 2005.
Attorneys and Law Firms
Nehemiah D. Rolle, New York, NY, pro se.
Carl S. Sandel, Office of the Nassau County Attorney,
Mineola, NY, for Defendants.
REPORT AND RECOMMENDATION
E. THOMAS BOYLE, United States Magistrate Judge.
*1 TO THE HONORABLE DENIS R. HURLEY, UNITED
STATES DISTRICT JUDGE:
Pro se plaintiff, Nehemiah Rolle (“plaintiff” or “Rolle”),
brings this action against Assistant District Attorneys
Elise McCarthy (“McCarthy”), Robert Cavallo (“Cavallo”),
and John Doe (“Doe”) (collectively, “ADA defendants”)
and Nassau County (collectively, “defendants”), alleging
deprivations of his First, Fourth, Fifth, Sixth, Eighth,
Thirteenth and Fourteenth Amendment rights in violation of
42 U.S.C. §§ 1983 and 1985.
On June 9, 2004, I ordered the plaintiff to show cause in
writing, on or before July 9, 2004, why this action should
not be dismissed for lack of subject matter jurisdiction. The
plaintiff never responded. Instead, on June 21, 2004, the
plaintiff appealed the show cause order to the Second Circuit
Court of Appeals. On May 3, 2005, the Court of Appeals
dismissed the appeal for lack of jurisdiction because a final
order had not been issued by the district court. On May
25, 2005 Judge Hurley referred the case again to me for a
report and recommendation as to whether the case should be
dismissed. A review of the complaint reveals that plaintiff has
no viable cause of action against the defendants. Accordingly,
I recommend that plaintiff's action be dismissed.
FACTS
The complaint in this action was filed on or about August
7, 2002. The actions complained of pertain to the ADA
defendants' alleged prosecutorial misconduct during the
course of a criminal proceeding against plaintiff in Nassau
County's County Court, in which plaintiff was charged with
Grand Larceny in the Fourth Degree. 1
Plaintiff was arrested on or about June 12, 2002 and arraigned
upon a felony complaint on June 13, 2002. At his arraignment,
plaintiff demanded a felony exam, which was conducted
on June 18, 2002, before the Honorable Lea Ruskin. Judge
Ruskin found that there was reasonable cause to believe
that plaintiff had committed a felony and plaintiff was held
pending the action of the grand jury.
Plaintiff alleges that he initially received notice that the
alleged charge of “Grand Larceny in the Fourth Degree”
against him would be presented to a Nassau County grand
jury on July 11, 2002. (Pl.'s Compl. ¶ 6.) The grand jury
proceeding did not take place on July 11, 2002, but instead
occurred on July 25, 2002. Plaintiff alleges that he was
not properly re-notified of the July 25, 2002 grand jury
proceeding, at which the grand jury voted to indict plaintiff,
charging him with one count of Grand Larceny in the Fourth
Degree. (Id. at 17.)
Plaintiff further alleges that on or about July 25, 2002, he
appeared at the Nassau County courthouse with the intention
of testifying at the grand jury proceeding. (Pl.'s Compl. ¶
14.) Plaintiff alleges that on that date, he was questioned by
the ADA defendants outside of the presence of his attorney
without signing a waiver of immunity, and that ADA John
Doe threatened, intimidated, and coerced the plaintiff while
questioning him outside of the grand jury room. (Id. ¶
15.) Plaintiff also alleges that the named defendant, ADA
McCarthy, questioned and examined him outside of the
presence of the grand jury without allowing him to sign a
waiver of immunity. (Id. at ¶ 17.) Plaintiff asserts that such
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questioning, along with the failure of the ADA defendants to
permit plaintiff to sign a waiver of immunity and to testify
before the grand jury, violates his federal and state rights. (Id.
at 20.)
*2 Plaintiff seeks a declaratory judgment that the ADA
defendants' actions violated plaintiff's state and federal rights
and that the actions of the ADAs must be reversed and
rescinded until plaintiff has a jury trial on all issues in the
complaint. (Id. Relief Clause.) Plaintiff also seeks to have
the ADA defendants fired and prosecuted for their alleged
criminal actions taken with respect to the plaintiff. (Id.)
DISCUSSION
I. This Court Lacks Subject Matter Jurisdiction
A district court should dismiss a case for lack of subject
matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1) when the court “lacks the statutory or constitutional
power to adjudicate it.” Makarova v. United States, 201 F.3d
110, 113 (2d Cir.2000); see also Fed.R.Civ.P. 12(b)(1). A
defendant may move to dismiss pursuant to Rule 12(b)(1)
by either a facial attack on the complaint, regarding the
sufficiency of the pleading, or by arguing that factually, the
court lacks jurisdiction. See Robinson v. Gov't of Malaysia,
269 F.3d 133, 140 (2d Cir.2001); Poodry v. Tonawanda Band
of Seneca Indians, 85 F.3d 874, 887 n. 15 (2d Cir.1996)
(citations omitted). When determining the merits of a facial
attack, the court must accept as true all allegations within
the complaint. See Robinson, 269 F.3d at 140 (citing Sweet
v. Sheahan, 235 F.3d 80, 83 (2d Cir.2000)). However, the
court need not presume the truthfulness of the complaint's
averments for a factual attack. See id. (citing Makarova, 201
F.3d at 113). Rather, the burden rests on the nonmoving
party to establish by a preponderance of the evidence that
jurisdiction exists. Makarova, 201 F.3d at 113 (citing Malik v.
Meissner, 82 F.3d 560, 562 (2d Cir.1996)). When evaluating
a factual attack on subject matter jurisdiction, the court may
refer to “materials extrinsic to the complaint” to resolve the
jurisdictional question. Phifer v. New York, 289 F.3d 49, 55
(2d Cir.2002) (citing United States v. Vasquez, 145 F.3d 74,
80 (2d Cir.1998)).
A. Rooker-Feldman Doctrine
The Rooker-Feldman doctrine 2 mandates that “lower federal
courts lack subject matter jurisdiction over claims that
effectively challenge state court judgments.” Kropelnicki v.
Siegel, 290 F.3d 118, 128 (2d Cir.2002) (citing Feldman, 460
U.S. at 486-87; Rooker, 263 U.S. at 415-16). “The doctrine
reflects the principle set forth in 28 U.S.C. § 1257 that the
Supreme Court is the only federal court that has jurisdiction
to review state court judgments, unless otherwise provided by
Congress.” 3 Kropelnicki, 290 F.3d at 128 (citing ASARCO
Inc. v. Kadish, 490 U.S. 605, 622, 109 S.Ct. 2037, 104
L.Ed.2d 696 (1989)). “This comity principle seeks to prevent
‘state and federal courts ... [from] fighting each other for
control of a particular case.’ ” Kropelnicki, 290 F.3d at 128
(quoting Atlantic Coast Line R.R. Co. v. Bhd. of Locomotive
Eng'rs, 398 U.S. 281, 286, 90 S.Ct. 1739, 26 L.Ed.2d 234
(1970)) (alteration in original).
*3 The Circuit has explained that under the Rooker-Feldman
doctrine, the district court lacks subject matter jurisdiction
over a case “if the exercise of jurisdiction over that case
would result in the reversal or modification of a state court
judgment.” Hachamovitch v. DeBuono, 159 F.3d 687, 693
(2d Cir.1998); see also Kropelnicki, 290 F.3d at 129. More
recently, the Kropelnicki court explained that the Rooker-
Feldman doctrine applies “if adjudication of a claim in
federal court would require the court to determine that
a state court judgment was erroneously entered or void.”
Kropelnicki, 290 F.3d at 129 (applying Rooker-Feldman
doctrine and holding that, should the court hear plaintiff's
argument regarding defendant's “misrepresentation” in the
state court, their “ruling would effectively declare the state
court judgment fraudulently procured and thus void ...
precisely the result that the Rooker-Feldman doctrine seeks
to avoid”) (citations omitted). This doctrine applies to state
court judgments in both civil and criminal actions. See, e.g.,
Gentner v. Shulman, 55 F.3d 87 (2d Cir.1995) (vacating
and remanding an action on the basis of Rooker-Feldman
where the district court exercised jurisdiction over an action
by state criminal defendants and their attorneys against
presiding criminal judges, seeking an injunction “prohibiting
disqualification of criminal defendants' attorneys in state
criminal proceedings”); Brown v. New York, 210 F.Supp.2d
235 (S.D.N.Y.1999) (applying Rooker-Feldman where pro
se plaintiff brought a § 1983 action against a state criminal
judge for judicial acts during plaintiff's arraignment) (citing
Gentner, 55 F.3d at 88-90). In its analysis of the Rooker-
Feldman doctrine, the Johnson v. Smithsonian Inst. court
explained that the “ ‘fundamental and appropriate question’ ”
is whether the alleged injury resulted from, or is ancillary to,
the state court judgment, because if the alleged injury was a
result of “ ‘the state court judgment itself,’ ” then the Rooker-
Feldman doctrine applies and the lower federal courts lack
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jurisdiction. Johnson v. Smithsonian Inst., 189 F.3d at 186
(quoting Gary v. Geils, 82 F.3d 1362, 1365 (7th Cir.1996)).
Among other things, plaintiff's complaint attacks the validity
of plaintiff's indictment, the completeness of disclosure, and
the alleged refusal to allow plaintiff to testify before the
Grand Jury. Such allegations are not properly addressed in
this forum, but rather, should be handled within the context
of plaintiff's state court criminal action. With respect to those
allegations, this court lacks subject matter jurisdiction under
the Rooker-Feldman doctrine on the grounds that addressing
such matters “would require the court to determine that
a state court judgment was erroneously entered or void.”
Kropelnicki, 290 F.3d at 129.
B. Younger Abstention Doctrine
The Younger Abstention Doctrine 4 provides another basis
by which this court lacks subject matter jurisdiction over the
present action. Under Younger, federal courts are generally
required “to abstain from taking jurisdiction over federal
constitutional claims that involve or call into question
ongoing state proceedings.” Diamond “D” Constr. Corp.
v. McGowan, 282 F.3d 191, 198 (2d Cir.2002) (applying
Younger abstention where plaintiff asked District Court to
enjoin ongoing state administrative proceedings). Abstention
under Younger principles is required when: “(1) there is an
ongoing state proceeding; (2) an important state interest is
implicated in that proceeding; and (3) the state proceeding
affords the federal plaintiff an adequate opportunity for
judicial review of the federal constitutional claims.” Id. at 198
(citing Grieve v. Tamerin, 269 F.3d 149, 152 (2d Cir.2001);
Hansel v. Town Court, 56 F.3d 391, 393 (2d Cir.1995)
(challenging, on federal constitutional grounds, a New York
law allowing lay justices to handle misdemeanor offenses);
Cecos Int'l, Inc. v. Jorling, 895 F.2d 66, 70 (2d Cir.1990)
(challenging, on federal constitutional grounds, a New York
statute requiring approval for expansion of certain waste
facilities).
*4 The first requirement is that there is a “parallel
proceeding, pending at the time the federal court action was
filed.” Int'l Fid. Ins. Co. v. City of New York, No. 00-693,
2003 WL 21142985, at *5 (E.D.N.Y. Apr. 24, 2003); see
also Hansel, 56 F.3d at 393 (citing Dubinka v. Judges of
Superior Court, 23 F.3d 218, 223 (9th Cir.1994) (“Younger
applies if state prosecution was pending at the time of filing of
federal action”) (emphasis in original). Regarding the second
requirement, the Circuit has held that “it is axiomatic that
a state's interest in the administration of criminal justice
within its borders is an important one.” Hansel, 56 F.3d
at 393 (citing Middlesex County Ethics Comm. v. Garden
State Bar Ass'n, 457 U.S. 423, 432, 102 S.Ct. 2515, 73
L.Ed.2d 116 (1982)); see also Davis v. Lansing, 851 F.2d 72,
76 (2d Cir.1988) (“There is no question that [an] ongoing
prosecution implicates important state interests.”) As for
the third requirement, the Circuit has held that for Younger
abstention purposes, it is enough that “a plaintiff is not barred
on procedural or technical grounds from raising alleged
constitutional infirmities.” Hansel, 56 F.3d at 394 (citations
omitted). In Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764,
27 L.Ed.2d 688 (1971), a companion case to Younger, federal
abstention also was extended to declaratory relief. See id.
A federal court may exercise its jurisdiction and enjoin a
state proceeding, however, when abstention would lead to
“great and immediate irreparable harm ... when a state court
is engaging in flagrantly unconstitutional acts, or statutes are
being enforced in bad faith.” Hansel, 56 F.3d at 393 (citing
Williams v. Lambert, 46 F.3d 1275, 1282 (2d Cir.1995)).
The burden, however, rests on the party seeking to invoke
federal jurisdiction to establish that an exception to abstention
applies. See Diamond “D” Constr. Corp ., 282 F.3d at
198 (citing Kirshner v. Klemons, 225 F.3d 227, 235-36 (2d
Cir.2000)).
The present action fits all three Younger abstention criteria.
Plaintiff is asking the court to enjoin and issue both
declaratory and monetary relief in an “ongoing” state criminal
proceeding. 5 The administration of criminal justice in the
state courts of New York is undoubtedly an important state
interest, and plaintiff is not barred from raising his claims
in the state court system on any constitutional, procedural
or technical grounds. As stated supra, the plaintiff bears the
burden of establishing that an exception to abstention applies,
and even the most liberal reading of the complaint could
not establish that plaintiff faces any “great and immediate
irreparable harm,” or that the ADA defendants engaged
in “flagrantly unconstitutional acts,” or that any “statutes
[were] being enforced in bad faith.” Hansel, 56 F.3d at 393.
Moreover, although given an adequate opportunity to do so,
plaintiff chose not to file any response to the order to show
cause. Therefore, I recommend that even if the court were
to enjoy subject matter jurisdiction over the instant action, it
should abstain from exercising it.
II. Plaintiff's Claims Should be Dismissed Under Federal
Rule of Civil Procedure 12(b) (6 )
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*5 In deciding a 12(b)(6) motion, the court must accept
as true the well-pleaded allegations of the complaint,
construing such allegations, and all reasonable inferences
drawn therefrom, in the light most favorable to the plaintiff.
See Arena, 216 F.Supp.2d at 151 (citing Desiderio v. Nat'l
Ass'n of Secs. Dealers, Inc., 191 F.3d 198, 202 (2d Cir.1999)).
“[T]he pleading standard is a liberal one,” however, “bald
assertions and conclusions of law will not suffice.” Leeds
v. Meltz, 85 F.3d 51, 52 (2d Cir.1996); Tufano v. One Toms
Point Lane Corp., 64 F.Supp.2d 119, 132 (E.D.N.Y.1999).
Submissions by pro se litigants are held to a less stringent
standard than those drafted by attorneys. See Arena, 216
F.Supp.2d at 151 (citing Hughes v. Rowe, 449 U.S. 5, 9, 101
S.Ct. 173, 66 L.Ed.2d 163 (1980) (per curiam)) (additional
citations omitted). The court should give pro se plaintiffs
“every opportunity to demonstrate that he [or she] has a valid
claim.” Bobal v. Rensselear Polytechnic Inst., 916 F.2d 759,
792 (2d Cir.1990). Nevertheless, the court should dismiss a
claim if “it appears beyond doubt that the plaintiff can produce
no set of facts in support of his claims that would entitle him
to relief.” Sanchez, 2001 WL 715830, at *2 (citing Conley
v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80
(1957)).
A. All Claims Against ADA McCarthy, ADA Cavallo, and
ADA Doe are Barred by Prosecutorial Immunity
“42 U.S.C. § 1983 provides that ‘[e]very person’ who acts
under color of state law to deprive another of a constitutional
right shall be answerable to that person in a suit for damages.”
Imbler v. Pachtman, 424 U.S. 409, 417, 96 S.Ct. 984, 47
L.Ed.2d 128 (1976) (quoting 42 U.S.C. § 1983). On its face,
the statute does not admit any defense of official immunity.
See Buckley v. Fitzsimmons, 509 U.S. 259, 268, 113 S.Ct.
2606, 125 L.Ed.2d 209 (1993). However, relying on common
law, the Supreme Court has recognized two types of immunity
under § 1983: qualified immunity and absolute immunity. See
Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 95
L.Ed. 1019 (1951) (holding that Congress did not intend for
§ 1983 to abrogate immunities “well grounded in history and
reason”).
Most public officials are entitled to only qualified immunity.
See Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S.Ct.
2727, 73 L.Ed.2d 396 (1982). “Under this form of immunity,
government officials are not subject to damages liability
for the performance of their discretionary functions when
‘their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.’ ” Buckley, 509 U.S. at 268 (quoting Harlow, 457 U.S.
at 818). Some officials, however, perform “special functions,”
which have been determined to deserve absolute protection
from liability. Butz v. Economou, 438 U.S. 478, 508, 98 S.Ct.
2894, 57 L.Ed.2d 895 (1978). “The official seeking absolute
immunity bears the burden of showing that such immunity is
justified for the function in question.” Burns v. Reed, 500 U.S.
478, 486, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991).
In determining whether to apply qualified immunity or
absolute immunity to the actions of government officials, the
Supreme Court has applied a “functional approach,” Buckley,
500 U.S. at 269, which looks to “the nature of the function
performed, not the identity of the actor who performed it.”
Forrester v. White, 484 U.S. 219, 229, 108 S.Ct. 538, 98
L.Ed.2d 555 (1988). Absolute immunity will apply to those
actions of a prosecutor that are “ ‘intimately associated with
the judicial phase of the criminal process,’ but not to a
prosecutor's acts of investigation or administration.” Dory v.
Ryan, 25 F.3d 81, 83 (2d Cir.1994) (quoting Buckley, 500
U.S. at 270). “The application of immunity is not limited to
the duties a prosecutor performs in the courtroom.” Dory, 25
F.3d at 83; see also Imbler, 424 U.S. at 431 n. 33 (noting
that prosecutorial duties involve “actions apart from the
courtroom”).
*6 Plaintiff alleges that the ADA defendants violated his
civil rights by: (1) failing to re-notify plaintiff of the grand
jury proceeding on July 25, 2002; (2) questioning the plaintiff
without permitting him to sign a waiver of immunity; (3)
disallowing plaintiff the opportunity to testify before the
grand jury; and, (4) conspiring to deprive plaintiff of his
constitutional rights. While plaintiff briefly mentions in his
complaint that this action is against the ADA defendants in
both their individual and official capacities, all of the alleged
misconduct by the ADA defendants was directly related to
their official acts pertaining to plaintiff's criminal proceeding.
The ADA defendants are entitled to absolute prosecutorial
immunity with respect to all of plaintiff's allegations.
1. Notification of the Grand Jury Proceeding
New York's Criminal Procedure Law § 190.50(5)(c) clearly
establishes that a defendant must raise any claim of
inadequate notification of a grand jury proceeding by motion
to dismiss the indictment on the basis of improper notice
within five days of being arraigned for the indictment.
See New York Criminal Procedure Law § 190.50(5)(c)
(McKinney's 1978). According to the Appellate Division,
Third Department, “There is little question that defendant
was entitled to appear before the Grand Jury. Denial of this
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right invalidates an indictment. However, a waiver of that
issue occurs unless a motion to dismiss the indictment on
that ground is made no later than five days after arraignment
on the indictment.” People v. Reddy, 108 A.D.2d 945, 484
N.Y.S.2d 934 (3rd Dept.1985). See also People v. Yamagata,
208 A.D.2d 1120, 618 N.Y.S.2d 122 (3rd Dept.1994); People
v. Gilbert, 143 A.D.2d 529, 533 N.Y.S.2d 30 (4th Dept.1988);
People v. Ali, 130 Misc.2d 1013, 498 N.Y.S.2d 264 (Sup.Ct.,
Westchester Co.1986); People ex rel. Hunter v. Patterson, 55
A.D.2d 693, 388 N.Y.S.2d 724 (3rd Dept.1976).
Here, throughout his complaint, plaintiff repeatedly alleges
that the ADA defendants failed to notify him about the Nassau
County grand jury proceeding at which he was subsequently
indicted for Grand Larceny in the Fourth Degree. Despite this,
the plaintiff makes no claim that he made a motion to object to
the defendants' alleged failure to properly notify him about the
pending grand jury proceedings. Since plaintiff did not make
a motion to dismiss on the basis of inadequate notice within
five days of being arraigned on this indictment, he waived
his improper notice claim. Accordingly, plaintiff's notification
claim is barred by New York's Criminal Procedure Law §
190.50(5)(c). Lastly, this is not a federal constitutional claim
but rather, purely a claim involving a state statutory right-
not recognized under Section 1983. Singer v. Fulton County
Sheriff, 63 F.3d 110, 119 (2d Cir.1995) (stating that one of
the necessary elements of a Section 1983 action is that the
defendant deprived the plaintiff of a federal constitutional
right) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 150,
90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970)).
2. Questioning of Plaintiff and Denial of His Right to Testify
at the Grand Jury Proceeding
*7 With respect to plaintiff's allegations that he was
improperly questioned prior to the grand jury proceeding,
the case law is clear that a prosecutor is immune from
civil liability for all actions undertaken in the initiation of a
prosecution as well as in the presentation of the State's case.
See Imbler, 424 U.S. at 431 (“We hold ... that in initiating a
prosecution and in presenting the State's case, the prosecutor
is immune from a civil suit for damages under § 1983.”).
See also Buckley, 509 U.S. at 269; Reid v. Schuman, 83 Fed.
Appx. 376 (2d Cir.2003); Pinaud v. County of Suffolk, 52
F.3d 1139 (2d Cir.1995). This includes a prosecutor's conduct
in connection with an appearance before a grand jury. See
Burns, 500 U.S. at 491. (holding that a prosecutor's actions in
appearing before a judge and presenting evidence in support
of a motion for a search warrant were entitled to absolute
immunity). See also Briscoe v. Lahue, 460 U.S. 325, 103 S.Ct.
1108, 75 L.Ed.2d 96 (1983).
Accordingly, the defendants' actions in connection with
plaintiff's appearance before the grand jury are protected
by prosecutorial immunity, and plaintiff's action should be
dismissed.
3. Conspiracy to Deprive Plaintiff of his Constitutional
Rights
Plaintiff further alleges that the ADA defendants conspired
to deprive plaintiff of his constitutional rights. This claim
also fails on the grounds of prosecutorial immunity. As stated
supra, absolute immunity extends to those actions of the
prosecutor, “whether in or out of the courtroom, ‘which occur
in the course of [the prosecutor's] role as an advocate for the
State.’ ” Pinaud, 52 F.3d at 1148 (quoting Buckley, 509 U.S.
at 273). “[S]ince absolute immunity covers ‘virtually all acts,
regardless of motivation, associated with [the prosecutor's]
function as an advocate, Pinaud, 52 F.3d at 1148 (quoting
Dory, 25 F.3d at 83), when the underlying activity at issue
is covered by absolute immunity, the ‘plaintiff derives no
benefit from alleging a conspiracy.’ ” Pinaud, 52 F.3d at 1148
(quoting Hill, 45 F.3d at 659 n. 2). Accordingly, plaintiff's
claim of conspiracy is barred by absolute immunity, and it
should therefore be dismissed.
B. Plaintiff's § 1985 Claim
With respect to claims brought pursuant to 42 U.S.C. § 1985,
“[a] complaint containing only conclusory, vague, or general
allegations of conspiracy to deprive a person of constitutional
rights cannot withstand a motion to dismiss.” Sommer v.
Dixon, 709 F.2d 173, 175 (2d Cir.1983) (per curiam); see
also Sanchez, 2001 WL 715830, at *3 (“In order to survive a
motion to dismiss, a plaintiff claiming a conspiracy pursuant
to 42 U.S.C. § 1985 must put forth more than vague or
conclusory allegations.”). To properly plead a conspiracy
under § 1985, a plaintiff “must allege, with at least some
degree of particularity, overt acts which defendants engaged
in which were reasonably related to the promotion of the
claimed conspiracy.” Thomas v. Roach, 165 F.3d 137, 147
(2d Cir.1999); see also Jones v. Newman, No. 98-7460, 1999
WL 493429, at *11 (S.D.N.Y. June 30, 1999). The Supreme
Court has held that the statutory “intent to deprive of equal
protection, or equal privileges and immunities, means that
there must be some racial, or perhaps otherwise class-based,
invidiously discriminatory animus behind the conspirators'
action.” However, the courts have held that pro se litigants
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are not a protected class for purposes of § 1985. See Jones,
1999 WL 493429, at *11 (citing cases). Additionally, relief
under § 1985 is limited to economic damages. See Tufano,
64 F.Supp.2d at 133 (citing Cuban v. Kapoor Bros., Inc., 653
F.Supp. 1025, 1033 (E.D.N.Y.1986)).
*8 Even when read liberally, plaintiff's conspiracy
allegations can only be described as conclusory, vague and
general. Plaintiff does not make any factual allegations in
the complaint explaining the “conspiracy” allegation, other
than referring to ADA Doe and McCarthy's alleged illegal
procedural actions on the date of the grand jury proceedings.
(See Pl.'s Compl. ¶ 17.) Plaintiff alleges no “overt acts” of
any conspiracy, let alone with any sort of “particularity.”
Accordingly, plaintiff's § 1985 claim should be dismissed for
failure to state a claim upon which relief can be granted.
RECOMMENDATION
For the foregoing reasons, the undersigned recommends that
plaintiff's complaint be dismissed sua sponte.
OBJECTIONS TO THIS REPORT
AND RECOMMENDATION
Any objections to this Report and Recommendation must
be filed with the Clerk of the Court with a copy to the
undersigned within ten (10) days of the date of this report.
Failure to file objections within ten (10) days will preclude
further appellate review of the District Court's order. 28
U.S.C. § 636(b)(1); FED. R. CIV. P. 6(a), 6(e), and 72(b);
IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054
(2d Cir.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130
L.Ed.2d 38 (1994); Frank v. Johnson, 968 F.2d 298 (2d
Cir.1992), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121
L.Ed.2d 696 (1992); Small v. Sec'y of Health and Human
Servs., 892 F.2d 15, 16 (2d Cir.1989) (per curiam).
Defendants' counsel is directed to serve a copy of this report
on all parties upon receipt.
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2005 WL 5885366
Footnotes
1 The court notes that this action is one of many that plaintiff has filed stemming from criminal prosecution,
wherein the plaintiff names as defendant the presiding judge, the prosecuting attorney, and/or the legal aide
attorney. Thus far, all such actions have been dismissed.
On August 1, 2003, in the Report and Recommendation on Rolle v. Ruskin, CV 02-3829, I recommended
that the Ruskin case be dismissed, and that a filing injunction be imposed against Rolle, precluding him
from commencing any future actions against any state court judge, Assistant District Attorney, or Legal
Aid Society attorney without first submitting the complaint for review and written permission to proceed
with the action. In a Decision and Order dated September 3, 2003, Judge Hurley adopted the Report and
Recommendation, and ordered Rolle to show cause on or before September 23, 2003 why this Court
should not issue a permanent injunction barring him from filing civil actions in the Eastern District of New
York against any state court judge, Assistant District Attorney, court staff, court personnel, or attorneys
who have represented plaintiff, without prior written approval by this Court. Plaintiff never responded to
the Order to Show Cause.
All of the five remaining cases by plaintiff which remain open, including the present case, were brought
prior to September 3, 2003.
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2 Rooker v. Fid. Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923), aff'd, Dist. of Columbia Court of
Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983).
3 See, e.g., 28 U.S.C. § 2254 (allowing a state prisoner to petition a federal district court to review the propriety
fo the state prisoner's incarceration).
4 Younger v. Harris, 401 U.S. 37, 38 (1971) (challenging a California law regarding distribution of leaflets on
federal constitutional grounds).
5 The court takes judicial notice of the fact that on September 19, 2003, plaintiff was sentenced by the
Honorable Meryl Berkowitz to one and a half to three years in a prision. Plaintiff appealed that decision to the
Appellate Division, Second Department, on October 28, 2003. That appeal is currently pending.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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