Wolters v. Attorney General of N.Y. State et al

Filing 3

MEMORANDUM AND ORDER: Plaintiff's 2 request to proceed in forma pauperis is granted solely for the purpose of this Order. Plaintiff's pro se 1 Complaint is dismissed pursuant to 28 U.S.C. § 1915 (e)(2)(B). Pl aintiff's applications for class certification and appointment of pro bono counsel are also denied. The Court has considered allowing plaintiff leave to amend his Complaint and finds that amendment would be futile because plaintiff has not identified any plausible federal claims. 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 a n appeal. The Clerk of the Court is respectfully requested to serve a copy of this Memorandum and Order on the pro se plaintiff and note such service on the docket. SO ORDERED by Judge Kiyo A. Matsumoto, on 4/24/2012. C/mailed. (Forwarded for Judgment.) (Latka-Mucha, Wieslawa)

FILED

IN CLERK'S OFFICE

U.S. DIStRICT cOf!)OOft~T

* APRv2 ~ 2012 *

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------x

BROOKLYN OFFICE

ARTHUR J. WOLTERS,

MEMORANDUM AND ORDER
12-CV-1544 (KAM) (SMG)

Plaintiff,
-against-

Attorney General, N.Y. State;
Commissioner, N.Y. State Dept.
of Motor Vehicles; the District
Attorneys of Richmond and
Queens Counties, N.Y.; RAY
KELLY, Commissioner of Police,
N. Y .C.,

Defendants.
-------------------------------x

KIYO A. MATSUMOTO, United States District Judge:
On March 27, 2012, pro se plaintiff Arthur J. Wolters
("plaintiff")

filed this action against defendants pursuant to

42 U.S.C. §§ 1983 and 1985.
and declaratory relief.

Plaintiff seeks damages,

injunctive

Plaintiff's request to proceed in forma

pauperis is granted solely for the purpose of this Order.

For

the reasons set forth below, the Complaint is dismissed.

BACKGROUND
The facts described herein are taken from the
allegations in the Complaint.
("Compl.").)

(See ECF No.1, Complaint

Plaintiff alleges that the Queens County District

Attorney engaged in selective and malicious prosecution when
plaintiff was tried and convicted in October 2004 for violating
section 511 of the New York State Vehicle and Traffic Law

1

.

& FILE

("VTL") under Indictment No. 1923/04.

(Id. at 10, 21-22.)

On

November 16, 2004, the New York Supreme Court, Queens County,
entered judgment convicting plaintiff, and sentenced him to four
years' imprisonment.

(Id. at 10, Ex. E.)

On June 5, 2007, the

Appellate Division reversed the conviction and ordered a new
trial.

(Id.)

On June 12, 2007, plaintiff was conditionally

released from prison, having served his full term of custody.

(Id. at 10.)

On March 24, 2008, the Queens County Supreme Court

dismissed the charges against plaintiff.

(Id. at 11, Ex. G.)

On May 8, 2008, the Queens County District Attorney
filed a new indictment against plaintiff for,
violating VTL section 511.
1104/08").)

inter alia,

(Id. at 11, Ex. D ("Indictment No.

The indictment noted that it was a "representment"

of Indictment No. 1923/04.

(Id. )

Plaintiff alleges that he

entered a guilty plea to the new indictment on February 25,
2009, and that his appeal based on double jeopardy grounds is
currently pending before the Appellate Division.

(Id. at 12.)

On July 2, 2011, plaintiff was arrested again in
Richmond County for violating VTL section 511.
H.)

(Id. at 12, Ex.

Plaintiff alleges that the Richmond County District

Attorney has failed to obtain a timely indictment against him.

(Id. at 13.)
Plaintiff seeks (1) a preliminary injunction
prohibiting the Staten Island (Richmond County)

2

District

Attorney from prosecuting him;

(2) a declaration that several

provisions of the New York Vehicle and Traffic Laws are
unconstitutional on their face and as applied;

(3) a declaration

that plaintiff "and all others similarly situated, have been and
are currently being selectively prosecuted by all the
defendantsU;

(4)

certification of the instant action as a "class

action for all others similarly situated U; and (5) money damages
from the Commissioner of the New York State Department of Motor
Vehicles

("DMVU), the New York City Police Commissioner Ray

Kelly, and the Queens County District Attorney.

(Id.

at 27-29.)

Finally, plaintiff requests the appointment of counsel.

(Id.

at

29. )

STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 1915, the court must dismiss
an in forma pauperis complaint if it 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.
§

u

28 U.S.C.

1915 (e) (2) (B) .
A complaint must plead "enough facts to state a claim

to relief that is plausible on its face.

Twombly,

550 U.S. 544, 570 (2007).

u

Bell Atl. Corp. v.

"A claim has facial

plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the

3

defendant is liable for the misconduct alleged."
I qba 1 ,

5 5 6 U. S. 6 62 ,

Ashcroft v.

67 8 ( 2 0 0 9) .

In reviewing plaintiff's pro se Complaint, the court
is mindful 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

(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976))
quotation marks omitted).

(2007)

(internal

This is especially true where, as

here, pro se pleadings allege civil rights violations.

Sealed

Plaintiff v. Sealed Defendant #1, 537 F.3d 185, 191 (2d Cir.

2008) .
DISCUSSION
I.

Request to Proceed as a Class Action

An initial matter, the court denies plaintiff's
request for class action certification.

It is well-established

that a pro se plaintiff cannot bring a class action.
Philip Morris Inc.,

100 F. Supp. 2d 215, 218 n.3

Nwanze v.

(S.D.N.Y. 2000)

(recognizing "the well established federal rule forbidding pro
se plaintiffs from conducting class action litigation"); see
also Guest v. Hansen,

603 F.3d 15, 20 (2d Cir. 2010)

("A person

who has not been admitted to the practice of law may not
represent anybody other than himself.").

Accordingly,

plaintiff's request for this action to proceed as a class action
is denied.

4

II.

Request for Dec1aration that VTL Section 511 is
Unconstitutional

The court also denies plaintiff's request for a
declaration that VTL section 511 is unconstitutional.

This

state statute has been upheld by the New York State Appellate
Division.

See People v. Campbell, 827 N.Y.S.2d 768

Div. 3d Dep't 2007)
§

(N.Y. App.

(rejecting defendant's argument that VTL

511(3) is constitutionally infirm); People v. Guszack, 654

N.Y.S.2d 845, 846 (N.Y. App. Div. 3d Dep't 1997)
"the statutory scheme [of VTL

§

(noting that

511 (3) (a) suffers no

constitutional infirmity"); see also People v. Cintron,
N.Y.S.2d 662, 663 (N.Y. Sup. Ct. 1995)

622

("[S]ection 511 of the

Vehicle and Traffic Law must be characterized a recidivist
statute which meets constitutional requirements

. ") .

Accordingly, plaintiff's request for declaratory relief must be
dismissed pursuant to 28 U.S.C.

§

1915 (e) (2) (B).

III. Request for Money Damages from the Queens County District
Attorney, the Richmond County District Attorney, the New
York State DMV Commissioner, and the New York State
Attorney Genera1

Insofar as plaintiff seeks damages from the Queens
County District Attorney, the Richmond County District Attorney,
the New York State DMV Commissioner, and the New York State
Attorney General (collectively, the "State Defendants"), those
portions of the Complaint are dismissed.

The Eleventh Amendment

bars an action in federal court against a state or its agencies

5

absent a waiver of immunity or congressional legislation
specifically overriding immunity.
v. Halderman,

465

u.s.

Pennhurst State Sch.

89, 99-100 (1984).

& Hosp.

It is well-

established that New York has not waived its immunity for
section 1983 suits in federal court,

Trotman v. Palisades

Interstate Park Comm'n, 557 F.2d 35, 38-40 (2d Cir. 1977), and

that section 1983 was not intended to override a state's
sovereign immunity, Quern v. Jordan,
(1979) .

440

u.s.

332, 340-42

"To the extent that a state official is sued for

damages in his official capacity, such a suit is deemed to be a
suit against the state, and the official is entitled to invoke
the Eleventh Amendment immunity belonging to the state."
Jing Gan v. City of New York,

Ying

996 F.2d 522, 529 (2d Cir. 1993).

Further, to prevail on a section 1983 claim for damages against
a state official acting in his or her individual capacity, a
plaintiff must show that the official was personally involved in
the alleged deprivation of the plaintiff's constitutional
rights.

Moffitt v.

Town of Brookfield, 950 F.2d 880, 886 (2d

Cir. 1991); Johnson v. Glick, 481 F.2d 1028, 1034
("[WJhen monetary damages are sought under

§

(2d Cir. 1973)

1983, the general

doctrine of respondeat superior does not suffice and a showing
of some personal responsibility of the defendant is required.").
As officials who represent agencies of the State of
New York, the Queens County District Attorney, the Richmond

6

County District Attorney, the New York State DMV Commissioner,
and the New York State Attorney General are all entitled to
immunity under the Eleventh Amendment.

See Ying Jing Gan,

996

F.2d at 536 (holding that district attorney, when prosecuting a
criminal matter, represents the state not the county, and
therefore is immune from suit under the Eleventh Amendment);
Rodriguez v. Weprin,

116 F.3d 62, 66 (2d Cir. 1997)

(holding

that the Eleventh Amendment bars section 1983 claims against
present and former district attorneys insofar as they are sued
in their official capacities); Rubin v. Swarts, No. 10-CV-4119,
2011 u.S. Dist. LEXIS 28094, at *8

(E.D.N.Y. Mar. 16, 2011)

(holding that section 1983 claim against former DMV
Commissioners are barred by the Eleventh Amendment); Mullin v. P
&

R Educ. Servs.,

942 F. Supp. 110, 113 (E.D.N.Y. 1996)

(same);

Davis v. Cuomo, No. 10-CV-221, 2010 u.S. Dist. LEXIS 107210, at

*11-12 (N.D.N.Y Oct. 7, 2010)

("Plaintiff's claims against the

Office of the Attorney General and [the Attorney General] in his
official capacity as head of that office are barred by the
Eleventh Amendment and by the jurisdictional limitations of
§

1983.").
Moreover, insofar as plaintiff has sued the State

Defendants in their individual capacities, plaintiff's section
1983 claim for damages fails because he has not alleged any
personal involvement of the defendants in the alleged violation

7

of his rights.

The New York State Attorney General is listed

solely in the caption of the Complaint and is not mentioned
anywhere in the body of the Complaint.

Further, while the

Queens County District Attorney, the Richmond County District
Attorney, and the New York State DMV Commissioner are mentioned
in the Complaint, they are mentioned only by their official
titles, indicating that they are being sued in their official
capacities.

Because plaintiff does not allege that the State

Defendants were personally involved in the deprivation of his
rights and they are immune from suit for actions taken in their
official capacities, plaintiff's claims for money damages
against these defendants must be dismissed.
Further, the Queens County District Attorney and the
Richmond County District Attorney are entitled to prosecutorial
immunity from liability for damages under section 1983.

It is

"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."
(2d Cir. 2005)

Shmueli v. City of New York, 424 F.3d 231, 236
(internal quotation marks omitted).

"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 of New York,

45 F.3d 653, 661

8

(2d Cir. 1995)

(internal citations and quotation marks omitted).

Thus, the

Second Circuit has held that a prosecutor is immune from suit
under section 1983 for those "activities that are 'intimately
associated with the judicial phase of the criminal process.'"
Day v. Morgenthau,
Imbler v. Pachtman,

909 F.2d 75, 77

(2d Cir. 1990)

424 U.S. 409, 430 (1976)).

(quoting

A claim of

selective and malicious prosecution challenges prosecutorial
actions taken within the judicial phase of the criminal process,
and is thus barred by prosecutorial immunity.
Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994)

Id.;

see also

(prosecutor is

entitled to absolute immunity in section 1983 action "for
virtually all acts, regardless of motivation, associated with
his function as an advocate," including alleged conspiracy to
convict defendant on perjured testimony).

Accordingly, the

court lacks subject matter jurisdiction over plaintiff's
allegations that the prosecutors engaged in selective and
malicious prosecution.
IV.

Request for Declaration that Plaintiff's Rights Have Been
Violated

Plaintiff's claim for a declaration that his
"federally-protected constitutional rights have been
violated," is also barred by the Eleventh Amendment.
1, Compl. at 28.)

(ECF No.

The Second Circuit has held that claims for

retrospective declaratory relief are barred by the Eleventh

9

Amendment.

See Ward v. Thomas, 207 F.3d 114, 120 (2d Cir. 2000)

(holding that the declaratory relief sought "is unavailable in
federal court because there is no 'claimed continuing violation
of federal law' or 'threat of state officials violating the
repealed law in the future.'")

(citation omitted); see also

Rothenberg v. Stone, 234 F. Supp. 2d 217, 221-22

(E.D.N.Y. 2002)

(dismissing claims for declaratory relief on sovereign immunity
grounds because "plaintiff's complaint makes clear that
[plaintiff] is seeking declarations that [defendant's] past
conduct violated federal law" and "is therefore seeking only
retrospective declaratory relief").

Accordingly, insofar as

plaintiff has alleged that his constitutional rights have been
violated, the court lacks subject matter jurisdiction to order
declaratory relief.
V.

Request for Preliminary Injunction to Prevent Prosecution
in State Court

Insofar as plaintiff seeks prospective injunctive
relief, however, the Complaint is not barred by sovereign
immunity under the Eleventh Amendment.
F.3d 37, 45 (2d Cir. 2009)

Fulton v. Goord, 591

(holding injunctive relief is not

barred by the Eleventh Amendment).

Here, plaintiff alleges that

his "federally-protected constitutional rights .

are

currently being intentionally and grossly violated," and he
seeks a preliminary injunction to prevent the Staten Island

10

(Richmond County)

District Attorney from prosecuting him.

(ECF

No.1, Compl. at 28, 27.)

Nevertheless, because the case stemming from
plaintiff's July 2, 2011 arrest is still pending before the
state court (see id. at 13, 27), the court must dismiss the
Complaint, notwithstanding plaintiff's claims of selective and
malicious prosecution.

In Younger v. Harris,

401 U.S. 37, 43-47

(1971), the United States Supreme Court held that the district
court could not enjoin an ongoing state prosecution, regardless
of whether the law under which the plaintiff was being
prosecuted was constitutional.

The Second Circuit has held that

"Younger abstention is mandatory when:
state proceeding;

(1) there is a pending

(2) that implicates an important state

interest; and (3) the state court proceeding affords the federal
plaintiff an adequate opportunity for judicial review of his or
her federal constitutional claims."

Spargo v. N.Y.

State Comm'n

on Judicial Conduct, 351 F.3d 65, 75 (2d Cir. 2003); accord
Hansel v. Town Court for the Town of Springfield, 56 F.3d 391,
393 (2d Cir. 1995).

Federal courts may enjoin state criminal

proceedings only "under extraordinary circumstances, where the
danger of irreparable loss is both great and immediate."
Younger,

401 U.S. at 45 (quoting Fenner v. Boykin, 271 U.S. 240,

243 (1926)).

11

Here, all the elements for Younger abstention are met.
First, the criminal case against plaintiff is still pending in
state court.

Second, New York has an important state interest

in enforcing its criminal laws.

And third, plaintiff may raise

his claims of selective and malicious prosecution in the pending
criminal proceeding.
(1975)

See Kugler v. Helfant,

421 u.S. 117, 124

("[OJrdinarily a pending state prosecution provides the

accused a fair and sufficient opportunity for vindication of
federal constitutional rights.").

Moreover, plaintiff has not

shown extraordinary circumstances to warrant this court's
intervention.

Accordingly, plaintiff's request for injunctive

relief is dismissed.
VI.

Request for Money Damages from New York City Police
Commissioner

Plaintiff's claims for money damages from New York
City Police Commissioner Ray Kelly are also dismissed.

As a

prerequisite to an award of damages pursuant to section 1983, a
plaintiff must allege and prove the defendant's direct or
personal involvement in the alleged constitutional deprivation.
"It is well settled in this Circuit that personal involvement of
defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under
Burke, 449 F.3d 470, 484

(2d Cir. 2006)

Smith, 21 F.3d 496, 501 (2d Cir. 1994)).

12

§

1983."

Farrell v.

(quoting Wright v.
Here, plaintiff fails

to make any allegations against defendant Kelly that could
suggest he had any direct involvement with, knowledge of, or
responsibility for plaintiff's arrest on October 20, 2004 or for
his arrest on July 2, 2011, that allegedly deprived plaintiff of
his civil rights.

Id.

To the extent that plaintiff names defendant Kelly
based solely on his supervisory role as the New York City Police
Commissioner, the United States Supreme Court has held that
"[b]ecause vicarious liability is inapplicable to

.

§

1983

suits, a plaintiff must plead that each Government-official
defendant, through the official's own individual actions, has
violated the Constitution," and rejected the argument that "a
supervisor's mere knowledge of his subordinate's discriminatory
purpose amounts to the supervisor's violating the Constitution."
Iqbal,

556 U.S. at 676.

Here, plaintiff fails to make any

specific allegations against defendant Kelly.

Because the claim

against this supervisor defendant, as presently stated, can be
supported only on the basis of the respondeat superior or
vicarious liability doctrines, which are not applicable to
section 1983 actions, the Complaint is dismissed against
defendant Kelly.
VII. Alleged Conspiracy to Interfere with Civil Rights

Finally, insofar as plaintiff alleges a conspiracy to
deprive him of his constitutional rights, in violation of 42

13

u.S.C.

§

1985 (see ECF No.1, Compl. at 2, 22, 29), the claim is

dismissed as to all defendants.
a plaintiff must allege:

"To state a claim under

(1) a conspiracy,

§

1985,

(2) an intent or

purpose to deprive a person of equal protection of the law;

(3)

an act in furtherance of the conspiracy; and (4) an injury to a
person, including injury to property, person, or constitutional
right."

Bhatia v. Yale Sch. of Med.,

347 F. App'x 663,

665 (2d

Cir. 2009); see also Webb v. Goord, 340 F.3d 105, 110-11 (2d
Cir. 2003)

("In order to maintain an action under Section 1985,

a plaintiff 'must provide some factual basis supporting a
meeting of the minds, such that defendants entered into an
agreement, express or tacit, to achieve the unlawful end.''')
(citation omitted).

A complaint containing "only conclusory,

vague, or general allegations of conspiracy to deprive a person
of constitutional rights cannot withstand a motion to dismiss."
Gyadu v. Hartford Ins. Co., 197 F.3d 590, 591 (2d Cir. 1999)
(per curiam)

(citation omitted).

Liberally construing

plaintiff's pro se Complaint, the court finds that plaintiff has
failed to allege any facts sufficient to show the existence of a
conspiracy designed to deprive him of his rights.

Accordingly,

plaintiff's conspiracy allegation must fail.
CONCLUSION

For the reasons set forth above, plaintiff's pro se
Complaint, filed in forma pauperis, is dismissed pursuant to 28

14

u.s.C.

§

1915 (e) (2) (B).

Plaintiff's applications for class

certification and appointment of pro bono counsel are also
denied.

The court has considered allowing plaintiff leave to

amend his Complaint and finds that amendment would be futile
because plaintiff has not identified any plausible federal
claims.

Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000);

Fulton v. Goord, 591 F.3d 37, 45 (2d Cir. 2009).
certifies pursuant to 28 U.S.C.

The court

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 an appeal.
See Coppedge v. United States, 369 u.s. 438, 444-45 (1962).
The Clerk of the Court is respectfully requested to serve a copy
of this Memorandum and Order on the pro se plaintiff and note
such service on the docket.

SO ORDERED.

Dated:

April 24, 2012
Brooklyn, New York

-

,

--... .
, (J

-

-

Ar

/S/

•

KIYO A. MATSUMOTO
United states District Judge
Eastern District of New York

15