Kitt v. State of New York

Filing 29

ORDER granting 13 Motion to Dismiss for Lack of Jurisdiction -- For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, this action is dismissed with prejudice. Plaintiff is further denied a certificate of appealability as he fai ls to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see Fed. R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Lucidore v. New York State Div. of Parole, 2 09 F. 3d 107, 112 (2d Cir. 2000). 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. S ee 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 Written Memorandum and Order to pro se plaintiff and to close this case. SO ORDERED by Judge Dora Lizette Irizarry on 9/9/2014. (Irizarry, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ZACHARY KITT, pro se,
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Plaintiff,
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-against:
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STATE OF NEW YORK,
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Defendant.
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DORA L. IRIZARRY, United States District Judge:

SUMMARY ORDER
13-CV-5571

Zachary Kitt (“Plaintiff”), pro se, 1 filed the instant action against the State of New
York (“Defendant”), challenging his conviction for vehicular assault in the first degree.
(Plaintiff’s Complaint (“Compl.”), Dkt. Entry No. 1 ¶¶ 3-4.) Defendant moves, pursuant
to Rule 12(b)(1) of the Federal Rules of Civil Procedure, to dismiss the instant action in
its entirety. (See generally Defendant’s Memorandum of Law in Support of Defendant’s
Motion to Dismiss (“Def.’s Mem.”), Dkt. Entry No. 13-1.) For the reasons set forth
below, this action is dismissed as the Eleventh Amendment bars legal action against the
states and this Court lacks jurisdiction to vacate the judgment of the New York State
Supreme Court, Kings County.
BACKGROUND
On October 29, 2010, Plaintiff pled guilty to vehicular assault in the first degree
in New York State Supreme Court, Kings County. See People v. Kitt, 102 A.D.3d 984,
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Pro se pleadings are held “to less stringent standards than formal pleadings drafted by lawyers.”
Hughes v. Rowe, 449 U.S. 5, 9 (1980) (citation omitted). Courts should “interpret [such papers] to raise the
strongest arguments that they suggest.” Forsyth v. Fed’n Emp’t & Guidance Serv., 409 F. 3d 565, 569 (2d
Cir. 2005) (citation and internal quotation marks omitted). Though a court need not act as an advocate for
pro se litigants, in such cases there is a “greater burden and a correlative greater responsibility upon the
district court to insure that constitutional deprivations are redressed and that justice is done.” Davis v.
Kelly, 160 F. 3d 917, 922 (2d Cir. 1998) (citation omitted).

984 (2d Dep’t January 30, 2013). He was sentenced to a term of imprisonment of one to
three years. (Def.’s Mem. at 1.) He was released on parole on March 22, 2011, and was
discharged from parole supervision on September 22, 2012. (See id. at 2.)
Plaintiff appealed his conviction, which was affirmed on January 13, 2013. See
Kitt, 102 A.D.3d 984 at 984-85. The New York State Court of Appeals denied leave to
appeal on June 4, 2013. (See Order Denying Leave (N.Y. Jun. 4, 2013), attached to
Compl.) There is nothing in the record to suggest that Plaintiff filed a collateral appeal.
On October 7, 2013, Plaintiff filed the instant action claiming that, “[t]he court did not
properly inform [him] of [his] 6th Amendment Constitutional Rights” and that as a result,
he did not knowingly or voluntarily waive his Sixth Amendment rights. (Compl. ¶ 3.)
Plaintiff asks this Court to vacate his guilty plea. (Id. ¶ 4.)
DISCUSSION
I.

Legal Standard for Dismissal
Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a defendant may

move, in lieu of an answer, for dismissal of a complaint for “lack of subject-matter
jurisdiction.” In evaluating a motion to dismiss under Rule 12(b)(1), the court accepts as
true all factual allegations in the complaint; however, it should not draw inferences
favorable to the party asserting jurisdiction. J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.
3d 107, 110 (2d Cir. 2004) (citation omitted). “A case is properly dismissed for lack of
subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory
or constitutional power to adjudicate it.” Makarova v. United States, 201 F. 3d 110, 113
(2d Cir. 2000). “The plaintiff bears the burden of proving subject matter jurisdiction by a
preponderance of the evidence.” Aurecchione v. Schoolman Transp. Sys., Inc., 426 F. 3d

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635, 638 (2d Cir. 2005). In determining the existence of subject matter jurisdiction, a
district court may consider evidence outside the pleadings. Arar v. Ashcroft, 532 F. 3d
157, 168 (2d Cir. 2008) (citing Makarova, 201 F. 3d at 113).
II.

Sovereign Immunity
The Eleventh Amendment states 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.” U.S. Const. amend. XI.
The Eleventh Amendment “deprives a federal court of power to decide certain claims
against States that otherwise would be within the scope of Art III’s grant of
jurisdiction.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 119-20 (1984).
“[I]n the absence of consent[,] a suit in which the State or one of its agencies or
departments is named as the defendant is proscribed by the Eleventh Amendment.” Id. at
100. A state may waive immunity from suit in federal court, but waiver only applies
“where stated ‘by the most express language or by such overwhelming implications from
the text as (will) leave no room for any other reasonable construction.’” Edelman v.
Jordan, 415 U.S. 651, 673 (1974) (quoting Murray v. Wilson Distilling Co., 213 U.S.
151, 171 (1909)).
New York State is immune from this action as it has not waived its immunity
from suit in federal courts. Accordingly, the Complaint is dismissed with prejudice.
III.

Alternative Grounds for Dismissal
To the extent that this action may be construed as petition for a writ of habeas

corpus, the Court lacks jurisdiction to entertain such a petition. “The federal habeas
statute gives the United States district courts jurisdiction to entertain petitions for habeas

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relief only from persons who are ‘in custody.’” Maleng v. Cook, 490 U.S. 488, 490
(1989) (emphasis in original) (quoting 28 U.S.C. § 2241(c)(3)). Courts have interpreted
“in custody” to mean “under the conviction or sentence under attack at the time [the]
petition is filed.” Id. at 490-91 (citing Carafas v. LaVallee, 391 U.S. 234, 238 (1968)).
Plaintiff was not “in custody” at the time he filed this action because he already was
released from prison and discharged from parole more than one year before he filed this
action. (Def.’s Mem. at 4.) Thus, the Court cannot grant him habeas relief because he
has not “made a substantial showing that he was in custody by reason of the denial of a
constitutional right.” Finkelstein v. Spitzer, 455 F. 3d 131, 133 (2d Cir. 2006) (denying
certificate of appealability from district court’s denial of habeas petition).
To the extent this action can be construed as a writ of coram nobis, the Court
lacks jurisdiction. See Finkelstein, 455 F. 3d at 134 (“[D]istrict courts lack jurisdiction to
issue writs of coram nobis to set aside judgments of state courts.”). Accordingly, even if
the Eleventh Amendment did not bar suit against New York State, the Court lacks
jurisdiction to entertain Plaintiff’s claims.

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CONCLUSION
For the reasons set forth above, this action is dismissed with prejudice. Plaintiff is
further denied a certificate of appealability as he fails to make a “substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Fed. R. App. P. 22(b);
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Lucidore v. New York State Div. of
Parole, 209 F. 3d 107, 112 (2d Cir. 2000). 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. See Coppedge v.
United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
Dated: Brooklyn, New York
September 9, 2014
/s/
DORA L. IRIZARRY
United States District Judge

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