People of the State of New York v. Posr et al
ORDER finding as moot 6 Motion for Writ of Mandamus AND DISMISSING CASE - For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, this action is dismissed in its entirety. As Posr and Gounden have not made a substantial showing of the denial of a constitutional right, a certificate of appealability shall not issue. See 28 U.S.C. § 2253(c)(2). The court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good fa ith, and, therefore, in forma pauperis status is denied for purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is directed to mail a copy of this Electronic Order and the Attached Writt en Summary order to pro se plaintiffs, correct the caption to reflect that the People of the State of New York are defendants, not plaintiffs, and POSR. A. POSR and KRIS GOUNDEN are the named plaintiffs, not defendants, and to close this case. SO ORDERED by Judge Dora Lizette Irizarry on 7/25/2014. (Irizarry, Dora)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
POSR. A. POSR and KRIS GOUNDEN,
PEOPLE OF THE STATE OF NEW YORK,
MEMORANDUM AND ORDER
DORA L. IRIZARRY, U.S. District Judge:
On September 9, 2013, Posr A. Posr and Kris Gounden (collectively, “Plaintiffs”) 1 filed a
pro se submission entitled, “Habeas Corpus/Notice of Removal to the United States District
Court for the Eastern District of New York Pursuant to 28 USC §§ 2254 and 1446[a] and
Joinder,” along with an “Affidavit Supporting Notice of Removal to the United States District
Court for the Eastern District of New York” and an “Appendix for Notice of Removal and
Habeas Corpus Dated 2013 Sept 9.” (See 9/9/13 Submission (“Notice/Affidavit”), Dkt. Entry
No. 1.) On September 30, 2013, Posr and Gounden paid the $5 filing fee required for petitions
filed under 28 USC §§ 2241 and 2254. They did not, however, submit the $400 fee required
when filing a Notice of Removal of a civil action under 28 U.S.C. § 1446(a). Whether construed
as a petition for habeas corpus or as a civil action, the September 9, 2013 submission is
dismissed for lack of subject matter jurisdiction. 2
Plaintiffs erroneously captioned this case, listing People of the State of New York as Plaintiffs. The Clerk of the
Court is directed to amend the caption, using the proper caption set forth above.
On December 19, 2013, while the decision on this action was pending, Gounden submitted a document entitled,
“Motion for a Writ of Mandamus” (Dkt. Entry No. 6) and supporting documents (Dkt. Entry Nos. 8-9) seeking a
preliminary injunction barring the State of New York from initiating any further criminal prosecutions of Plaintiffs.
The following information is taken from the Notice/Affidavit and attached appendix,
unless specifically indicated otherwise. On August 8, 2013, Posr and Gounden were arrested in
front of 152 Broadway in Howard Beach, Queens. (Appendix Ex. 1; Ex. 2.) Posr and Gounden
were “charged, essentially, for blocking an alleged public street that presumed innocent Gounden
owns as private property.”
(Notice/Affidavit ¶ 11.)
Posr was charged with Unlawful
Imprisonment (N.Y. Penal Law § 135.05), Obstructing Governmental Administration (N.Y.
Penal Law § 195.05), and Disorderly Conduct (N.Y. Penal Law § 240.20(5)). (Id. at ¶ 3;
Appendix Ex. 1.)
Gounden’s criminal charges are pending under indictment number
2013QN054936, where the only remaining charge related to the August 8, 2013 arrest appears to
be Disorderly Conduct (N.Y. Penal Law § 240.20(5)). (See Website for the New York State
Unified Court System, https://iapps.courts.state.ny.us/webcrim_attorney/ (last visited 7/25/14).)
There are no known changes pending against Posr.
Posr and Gounden allege that their arrests were related to a dispute involving real
property owned by Gounden and claimed as a public roadway by the City of New York.
(Notice/Affidavit ¶¶ 6, 11.) The property is located on Lots 161 and 162, Block 14228, on
Broadway in Howard Beach, Queens County. (Appendix Ex. 3, at 2.) Posr and Gounden allege
that Gounden owns the property without any restrictions or easements, but that nearby property
owners and New York City officials have used a portion of Gounden’s property as a public
street, although it is not designated as such. 3 (Notice/Affidavit ¶¶ 6, 11, 15.) In support of this
These submissions contained no new allegations or support for the relief sought. Accordingly, the Motion for a Writ
of Mandamus is terminated as moot by nature of the Court’s dismissal of the action for lack of subject matter
The Court notes that Gounden has previously filed suit in this Court seeking declaratory and injunctive relief and
damages related to the underlying property dispute involving the property in Howard Beach. See Gounden v. City of
assertion, they attach a January 30, 2013 decision in the case assigned Index Number 3005/12,
by the New York State Supreme Court, Queens County, in which New York City’s complaint
against Gounden brought under New York’s Real Property Actions and Proceedings Law § 871
was dismissed. (Id. at ¶¶ 91-96; Appendix Ex. 3.) That court held that “the segment of
Broadway at issue cannot become a public highway pursuant to § 189 [of Article 8 of the
Highway Law] since that section only applies to towns,” and because “Howard Beach is not a
town but part of the City of New York.” (Appendix Ex. 3, at 2.) The court also noted: “It is
undisputed that there are no easements of record on these lots and that the roadway is not shown
on any maps.” (Id.)
The Court construes the submissions as arguing that the underlying property dispute
should be governed by a New York Eminent Domain Procedure Law (“EDPL”) and because that
statute “invests exclusive original controlling jurisdiction to resolve that property dispute in the
appellate division and in no other court” the state trial courts are divested of jurisdiction over any
arrest related to the underlying property dispute. (Notice/Affidavit ¶¶ 1, 11.) Specifically, they
allege that New York City’s failure to resolve the property dispute under the EDPL thereby
“deprives every civil and criminal court of the State of New York of the jurisdiction necessary to
both hear and determine the civil ‘property’ element of the criminal matter and controversy.”
(Id. at ¶ 11.) Posr and Gounden further allege, without any support, that “when no state court has
jurisdiction habeas corpus applies.” (Notice/Affidavit ¶ 14.) According to them, “[o]nly the
federal judiciary has the jurisdiction, under 28 U.S.C. §§ 2254 and/or 1446[a], to resolve that
civil matter.” (Notice/Affidavit ¶ 13.)
New York, et al., 10 CV 3438-BMC-JMA, slip op. (E.D.N.Y. April 22, 2011) (granting defendants’ motion to
dismiss), aff’d, Gounden v. Campagna, 487 Fed. Appx. 624 (2d Cir. 2012) (summary order).
No Basis for Habeas Corpus Relief
First, to the extent that the Court construes the petition as asserting a claim under 28
U.S.C. § 2254, the claim is premature and must be dismissed. Federal courts may “entertain an
application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment
of a State court.”
28 U.S.C. § 2254(a).
The petitioner must “be ‘in custody’ under the
conviction or sentence under attack at the time his petition is filed.” Maleng v. Cook, 490 U.S.
488, 490-91 (1989); see also Williams v. Horn, 2006 WL 2333874, at *1 (E.D.N.Y. Aug. 9,
2006) (“[B]ecause the criminal proceedings are ongoing, there has been no judgment or
adjudication on the merits of petitioner’s claims and therefore, this § 2254 petition is
premature.”). In this case, neither Posr nor Gounden has alleged that he is “in custody pursuant
to the judgment of a State court.” Accordingly, their claims are dismissed.
Second, to the extent that the Court construes the petition as asserting a claim under 28
U.S.C. § 2241, the petition is dismissed. Arguably, Section 2241 would be applicable if Posr and
Gounden were subject to pretrial custody and if they had exhausted their state court remedies.
See Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 489 (1973) (permitting a state detainee
to bring a federal habeas petition to challenge his lengthy pretrial detention because he had
previously presented his speedy trial claim to the courts of Kentucky); Marte v. Berkman, 2011
WL 4946708, at *6 (S.D.N.Y. Oct. 18, 2011) (permitting petitioners to challenge their pretrial
detention pursuant to 28 U.S.C. § 2241). However, Posr and Gounden have not established that
they are subject to any custodial restrictions during pending criminal proceedings, nor have they
demonstrated that they have exhausted the remedies available through state court procedures.
Accordingly, there is no basis for relief pursuant to 28 U.S.C. § 2241.
No Basis for Removal
Posr and Gounden seek to remove “the civil property aspect of the criminal case, if not
the entire criminal case” from state court to federal court pursuant to 28 U.S.C. § 1446(a). 3 First,
Posr and Gounden did not submit the $400 fee for filing a Notice of Removal of a civil action.
Second, 28 U.S.C. § 1446(a), sets forth the “Procedure for removal of civil actions.” 28 U.S.C. §
1446 (emphasis added). Thus, even if Posr and Gounden had paid the filing fee to remove the
state action to federal court, they have not identified a statutory basis for the removal of
Gounden’s pending criminal case, and, thus, any such removed case would be remanded to the
Queens Criminal Court.
No Basis for a Civil Rights Action
The Court construes the submissions as asserting an independent civil rights action under
42 U.S.C. § 1983 as Posr and Gounden allege violations of the Fourth and Fourteenth
Amendments of the United States Constitution and claims for violations of constitutional rights
may be cognizable under 42 U.S.C. § 1983. To maintain a § 1983 action, a plaintiff must allege
two essential elements. First, “the conduct complained of must have been committed by a
person acting under color of state law.” Pitchell v. Callan, 13 F. 3d 545, 547 (2d Cir. 1994)
(emphasis added). 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. A
plaintiff must also show that each of the named individuals is personally liable for the alleged
harm. See Feingold v. New York, 366 F. 3d 138, 159 (2d Cir. 2004) (“A finding of ‘personal
involvement of [the individual] defendants’ in an alleged constitutional deprivation is a
It is not clear what role Posr plays in this litigation. It does not appear that there are any
criminal charges lodged against him, or that he has any interest in the underlying property
prerequisite to an award of damages under Section 1983.” (quoting Provost v. City of Newburgh,
262 F. 3d 146, 154 (2d Cir. 2001)). The submissions do not identify any individual defendants
who could be held liable for civil rights violations, nor do the Plaintiffs seek damages or any
injunctive or declaratory relief that this Court could grant.
Moreover, each of the alleged violations of their constitutional rights center on the “civil
aspects” of the criminal case, the public and private rights of the real property. Posr and
Gounden allege that Gounden’s continued prosecution for Disorderly Conduct (N.Y. Penal Law
§ 240.20(5)) cannot be maintained, if the disputed property is private property and not a public
Thus, the alleged “civil aspects” are at the heart of the criminal case.
abstention doctrine set forth in Younger v. Harris, 401 U.S. 37 (1971), federal courts may not
interfere with pending state court criminal prosecutions, absent some extraordinary circumstance
such as bad faith prosecution, patently unconstitutional laws, or the lack of an adequate process
in state court for protecting the rights of the accused. The Second Circuit has held that “Younger
abstention is appropriate when: 1) there is an ongoing state proceeding; 2) an important state
interest is implicated; and 3) the plaintiff has an avenue open for review of constitutional claims
in the state court.” Hansel v. Springfield, 56 F. 3d 391, 393 (2d Cir. 1995), cert. denied, 516
U.S. 1012 (1995). Here, the criminal case against Gounden is still pending, New York has an
important state interest in enforcing its criminal laws, and Gounden is free to raise any
constitutional claims in the pending criminal proceedings. See Kugler v. Helfant, 421 U.S. 117,
124 (1975) (“[O]rdinarily a pending state prosecution provides the accused a fair and sufficient
opportunity for vindication of federal constitutional rights.”). Accordingly, to the extent that
Posr and Gounden ask this Court to consider any aspect of Gounden’s pending criminal case,
these claims are dismissed.
Posr and Gounden argue that Younger does not apply in the face of their prosecution in
bad faith. But their conclusory allegation of bad faith—that City officials knew about the
property dispute when they charged Gounden—does not allege that the police officers acted out
of any unlawful purpose. Rather, Gounden’s claim that he was charged while engaged in lawful
activity on his own private property is advanced more appropriately as a defense to the criminal
charge in state court. Gounden has not alleged any facts that would bring his case within any
exception for extraordinary circumstances.
Accordingly, this Court must abstain from
adjudicating the claim regarding the ongoing state court proceedings.
For the reasons set forth above, this action is dismissed in its entirety. As Posr and
Gounden have not made a substantial showing of the denial of a constitutional right, a certificate
of appealability shall not issue. See 28 U.S.C. § 2253(c)(2). 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 purpose of an appeal. Coppedge v. United
States, 369 U.S. 438, 444-45 (1962).
Dated: Brooklyn, New York
July 25, 2014
DORA L. IRIZARRY
United States District Judge
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