Wingate v. Grasso et al

Filing 5

MEMORANDUM AND ORDER: The Court grants plaintiff's 2 request to proceed in forma pauperis. The complaint is dismissed in its entirety pursuant to 28 U.S.C. §§ 1915A(b) and 1915(e)(2)(B). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. SO ORDERED. (Ordered by Judge Allyne R. Ross, on 3/1/2011) C/mailed. (Latka-Mucha, Wieslawa)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

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BLAKE WINGATE, Plaintiff, -againstG. GRASSO, Justice; W. MILLER, Justice; S. MONDO, Justice; TIM DRISCOLL, Esq.; DARA KRISTT, Esq.; ROBERT J. RIETHER; VIVIANE DUSSEK; FRUMPKIN, A.D.A.; PLANNER, A.D.A.; JANE DOE, Legal Aid, BROWN-LEE, A.D.A.; M. MATTEI, Justice; 1. GUBBA Y, Justice, all personally & in their capacity of office, Defendant. MEMORANDUM AND ORDER ll-CV-0357 (ARR) NOT FOR ELECTRONIC OR PRINT PUBLICATION

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ROSS, United States District Judge: On January 5, 2011, plaintiff Blake Wingate, currently incarcerated at the Anna M. Kross Center on Rikers Island, filed thispro se actionpursuantto 42 U.S.C. §§ 1983, 1985, 1987 and 1988. Plaintiff seeks damages and to clear his record. The court grants plaintiff s request to proceed in forma pauperis. The complaint is dismissed as set forth below. Backeround Plaintiff alleges false arrest and malicious prosecution in connection with three separate charges that appear to be currently pending. Plaintiff alleges that the named Judges "pass these ... cases back and forth to each other instead of dismissing them." Compo at 5. 1 Plaintiff further alleges that the prosecutors "have no legal authority to pursue" the charges against him. Id. plaintiff alleges ineffective assistance of his assigned counsel. Id. Finally,

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The court refers to the page numbers assigned by the Electronic Case Filing system.

Standard of Review

In reviewing the complaint, the court is aware that plaintiff is proceeding pro se and that "a
pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal

pleadings drafted by lawyers," Erickson v. Pardus, 551 U.S. 89, 94 (2007), and that the court is obliged to construe plaintiffs pleadings liberally and interpret them as raising the strongest arguments they suggest. Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). Nonetheless, the court must 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; or seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. §1915A(b). See Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). Moreover, pursuant to the in forma

pauperis statute, the court must dismiss the action if it determines that it is "(i) frivolous or

malicious; (ii) fails to state a claim on 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).
Discussion
A.

Judicial Immunity The complaint is dismissed against Judges Grasso, Miller, Mondo, Mattei and Gubbay,

because judges have absolute immunity from suit for judicial acts performed in their judicial capacities. See Bliven v. Hunt, 579 F.3d 204,209 (2d Cir. 2009); see also Mireles v. Waco, 502 U.S. 9,11 (1991) (per curiam) ("judicial immunity is an immunity from suit, not just from the ultimate assessment of damages.") (citation omitted); Stump v. Sparkman, 435 U.S. 349, 356 (1978).
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This absolute 'judicial immunity is not overcome by allegations of bad faith or malice," nor can a judge "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 (quoting Stump, 435 U.S. at 356). As the alleged wrongdoing of these defendants were acts performed in their judicial capacity while presiding over plaintiffs criminal cases, see Compl. at 5, plaintiffs claims are foreclosed by absolute immunity and are dismissed. See 28 U.S.C. §§ 1915A(b); 1915(e)(2)(B).

B.

Prosecutorial Immunity The complaint is likewise dismissed against the assistant district attorneys Dussek, Frumpkin,

Planner, and Brown-Lee, assigned to prosecute plaintiffin state court. Similar to judges, prosecutors are entitled to absolute immunity when they engage in conduct "intimately associated with the judicial phase of the criminal process." Imbler v. Pachtman, 424 U.S. 409, 430 (1976). A

prosecutor has absolute immunity from a damages claim "initiating a prosecution." Id. at 431; see,
~,Barr v.

Adams, 810 F.2d 358,362 (2d Cir. 1987); Dory v. Ryan, 25 F.3d 81,83 (2d Cir. 1994).

Therefore, plaintiffs claims against these defendants are foreclosed by absolute immunity and are dismissed. See 28 U.S.C. §§ 1915A(b); 1915(e)(2)(B). C. Defense Counsel The complaint must also be dismissed against Driscoll, Kirstt, Riether and Jane Doe, Legal Aid Society, attorneys assigned to defend plaintiff. Plaintiff alleges ineffective assistance of counsel. A claim for relief under § 1983 must allege that the defendant acted under color of a state "statute, ordinance, regulation, custom, or usage .... " 42 U.S.C. § 1983. It is well-established that public defenders, court-appointed counsel, and private attorneys performing a lawyer's traditional functions

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as counsel to defendant do n?t act "under color of state law"and therefore are not subject to suit under § 1983. Polk County v. Dodson, 454 U.S. 312,325 (1981); Schnabel v. Legal Aid Society of Orange Co., 232 F.3d 83,86-87 (2d Cir. 2000); Rodriguez v. Weprin, 116 F.3d 62,65-66 (2d Cir. 1997); McClusky v. New York State Unified Court Sys., No. 1O-CV-2144 (JFB) (ETB), 2010 WL 2558624, at *6 (E.D.N.Y. June 17, 2010) (citing cases). Plaintiff's conclusory allegation of a

conspiracy falls short of the special circumstances suggesting concert of action between an attorney and a state representative required to sustain such a claim. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970); Fries v. Bames, 618 F.2d 988,990-91 (2d Cir. 1980). Therefore, the claims against these defendants are dismissed. See 28 U.S.C. §§ 1915A(b); 1915(e)(2)(B).2

Conclusion
Accordingly, the complaint, filed informa pauperis, is dismissed in its entirety pursuant to 28 U.S.C. §§ 1915A(b) and 1915(e)(2)(B). The court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal 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~8,4~45 (1962). SO ORDERED.

/Signed by Judge Ross/
Alt;ne R. R i United States istnc Dated: March 1, 2011 Brooklyn, New York

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2 The court does not address the defendants listed on the last four pages of the complaint as plaintiff provides no factual allegations against them. These pages appear to belong to plaintiffs complaint before Judge Crotty in the Southern District of New York, No. ll-CV-188. Ifplaintiff seeks to file claims against these defendants in this court, he must file a separate complaint, request in forma pauperis status, and submit a signed Prisoner Authorization form for that complaint.

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