Delarosa v. Serita et al

Filing 8

MEMORANDUM & ORDER: The Court grants Plaintiff's 2 request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, and dismisses the Complaint for failure to state a claim upon which relief may be granted. Plaintiff� 39;s Complaint is dismissed for failure to state a claim upon which relief may be granted. 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 purpose of an appeal. SO ORDERED by Judge Margo K. Brodie, on 4/28/2014. C/mailed to pro se Plaintiff. (Forwarded for Judgment.) (Latka-Mucha, Wieslawa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------RAMON DELAROSA,
Plaintiff,

MEMORANDUM & ORDER
14-CV-737 (MKB)

v.
JUDGE TOKO SERITA, ATTORNEY
CHRISTOPHER WHITEHAIR and ASSISTANT
DISTRICT ATTORNEY ALISON ANDREWS,
Defendants.
---------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Ramon Delarosa, proceeding pro se and currently incarcerated at Mid-State
Correctional Facility, brings this Complaint pursuant to 42 U.S.C. § 1983, alleging deprivation of
“due process of law,” and violation of 18 U.S.C §§ 241 and 242 against Defendants Toko Serita,
Christopher Whitehair and Alison Andrews. (Docket Entry No. 1.) The Court grants Plaintiff’s
request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, and dismisses the Complaint
for failure to state a claim upon which relief may be granted.
I.

Background
Plaintiff alleges that on or about December 17, 2009, he was arraigned in Queens County

Criminal Court on an “illegal indictment.” (Compl. 4–5.) Plaintiff further alleges that he was
denied his right to a speedy trial and “coerced’ into taking a plea, and, because he did not
understand English and required a translator, he was deprived of “due process of law” during his
arraignment. (Id. at 5.) Although unclear, Plaintiff appears to allege a conspiracy among
Defendants to deprive him of his right to a speedy trial. (Id.) Plaintiff seeks to have his
judgment in the state criminal action dismissed and an award of monetary damages. (Id. at 8.)

II. Discussion
a.

Standard of Review

A complaint must 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). Although all allegations contained in the complaint are assumed to be true, this
tenet is “inapplicable to legal conclusions.” Id. In reviewing a pro se complaint, the court must
be mindful that the Plaintiff’s pleadings should be held “to less stringent standards than formal
pleadings drafted by lawyers.” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal quotation marks
omitted); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that even after Twombly, the
court “remain[s] obligated to construe a pro se complaint liberally”). If a liberal reading of the
complaint “gives any indication that a valid claim might be stated,” the Court must grant leave to
amend the Complaint. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). Nevertheless,
the court must screen “a complaint in a civil action in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental entity” and, thereafter, “dismiss
the complaint, or any portion of the complaint,” if it is “frivolous, malicious, or fails to state a
claim upon which relief may be granted.” 28 U.S.C. § 1915A; see Abbas v. Dixon, 480 F.3d
636, 639 (2d Cir. 2007). Similarly, the court is required to dismiss sua sponte an in forma
pauperis action, if the court determines it “(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); Abbas, 480 F.3d at 639.

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a.

Plaintiff’s claims pursuant to 18 U.S.C. §§ 241 and 242

Plaintiff alleges claims pursuant to 18 U.S.C. §§ 241 and 242, which are provisions of the
criminal code that prohibit the deprivation of a person’s civil or Constitutional rights. See 18
U.S.C. § 241 (prohibiting two or more individuals from acting in concert to deprive another of
his or her Constitutional rights); 18 U.S.C. § 242 (prohibiting an individual from acting under
color of state law to deprive another of his or her civil or constitutional rights). However, there
exists no private right of action to enforce these criminal statutes, which, as a general matter, are
prosecuted by the government and not by private individuals. See Hill v. Didio, 191 F. App’x
13, 14 (2d Cir. 2006) (no private right of action under 18 U.S.C. § 241 or § 242 (citing Robinson
v. Overseas Military Sales Corp., 21 F.3d 502, 511 (2d Cir. 1994) and Newcomb v. Ingle, 827
F.2d 675, 676 n.1 (10th Cir. 1987))); Weinstein v. City of New York, No. 13-CV-06301, 2014
WL 1378129, at *4 (S.D.N.Y. Apr. 8, 2014) (“Violations of the Criminal Code do not provide a
basis for a civil cause of action, unless the particular provision in question includes an express or
implied private right of action.”). Therefore, Plaintiff’s claims brought pursuant to 18 U.S.C. §§
241 and 242 are dismissed for failure to state a claim upon which relief may be granted.
b.

Plaintiff’s § 1983 claim

Plaintiff seeks damages for violation of his constitutional rights pursuant to 42 U.S.C.
§ 1983. In order to state a § 1983 claim, a plaintiff must allege (1) that the challenged conduct
was “committed by a person acting under color of state law,” and (2) that such conduct
“deprived [the plaintiff] of rights, privileges, or immunities secured by the Constitution or laws
of the United States.” Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) (quoting Pitchell v.
Callan, 13 F.3d 545, 547 (2d Cir. 1994)). Section 1983 does not create any independent

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substantive right, but rather is a vehicle to “redress . . . the deprivation of [federal] rights
established elsewhere.” Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999).
As an initial matter, the Court notes that to the extent that Plaintiff seeks to challenge his
conviction and/or sentence, his sole federal remedy for challenging the fact or duration of his
confinement is by way of habeas corpus. See Wallace v. Kato, 549 U.S. 384, 392 (2007)
(“Congress . . . has determined that habeas corpus is the appropriate remedy for state prisoners
attacking the validity of the fact or length of their confinement, and that specific determination
must override the general terms of § 1983.” (citation and internal quotation marks omitted)).
In addition, Plaintiff cannot recover under § 1983 for alleged wrongful incarceration
unless he proves that his conviction or sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized to make such a determination, or
called into question by a federal court’s issuance of a writ of habeas corpus. See Wilkinson v.
Dotson, 544 U.S. 74, 81–82 (2005); Heck v. Humphrey, 512 U.S. 477, 487 (1994); Poventud v.
City of New York, --- F.3d ---, ---, 2014 WL 182313, at *4 (2d Cir. Jan. 16, 2014). Here,
Plaintiff has not alleged that his conviction or sentence was reversed or invalidated as provided
by Supreme Court case law. Therefore, to the extent Plaintiff seeks damages for his current
incarceration, his claim must be dismissed.1
i.

Defendant Whitehair

Plaintiff’s claim against Whitehair, who is alleged to have been his defense attorney in
the underlying criminal matter, cannot survive as a matter of law because of a lack of state
action. It is well established that court-appointed attorneys, including attorneys associated with a
1

The Court notes that Plaintiff recently filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. See Petition, Delarosa v. Colvin, No. 14-CV-227 (E.D.N.Y.
January 13, 2014).
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legal aid organization, do not act under color of state law when performing traditional functions
of counsel. Polk Cnty. v. Dodson, 454 U.S. 312, 324–25 (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.”); Sash v. Rosahn, 450 F. App’x 42, 43 (2d Cir. 2011) (“[A]
court-appointed criminal defense attorney does not act under color of state law when
representing a client . . . .” (citing Rodriguez v. Weprin, 116 F.3d 62, 65–66 (2d Cir. 1997)));
Krug v. McNally, 488 F. Supp. 2d 198, 200 (N.D.N.Y. Feb. 8, 2007) (“[D]efense attorneys —
even if court-appointed or public defenders — do not act under color of State law when
performing traditional functions of counsel.”). Similarly, public defenders, including Legal Aid
attorneys, court-appointed counsel and private attorneys do not act under the color of state law
merely by virtue of their position. See Brown v. Legal Aid Soc., 367 F. App’x 215, 216 (2d Cir.
2010) (“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.’” (quoting Polk Cnty.,
454 U.S. at 325)); McCloud v. Jackson, 4 F. App’x. 7, 9–10 (2d Cir. 2001) (“To the extent that
[the defense attorney] may have served as privately-retained counsel, rather than as a courtappointed attorney, he still could not be held liable under § 1983 because there was no showing
that he worked with state officials to deprive [the plaintiff] of federal rights.”); see also Licari v.
Voog, 374 F. App’x 230, 231 (2d Cir. 2010) (“It is well established that private attorneys — even
if the attorney was court appointed — are not state actors for the purposes of § 1983 claims.”
(citing Rodriguez, 116 F.3d at 65–66)); Shorter v. Rice, No 12-CV-0111, 2012 WL 1340088, at
*4 (E.D.N.Y. Apr. 10, 2012) (“neither public defenders, such as Legal Aid attorneys, nor courtappointed counsel, nor private attorneys, act under the color of state law merely by virtue of their
position”). Plaintiff’s claim against Whitehair fails to state a claim upon which relief may be
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granted because Plaintiff cannot assert a plausible § 1983 claim against his attorney. See 28
U.S.C. § 1915(e)(2)(B).
ii.

Defendants Judge Serita and Assistant District Attorney Alison
Andrews

Plaintiff’s claims against Judge Serita must be dismissed as judges have absolute
immunity for acts performed in their judicial capacities. Mireles v. Waco, 502 U.S. 9, 11 (1991);
Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir. 2009). 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 13 (citation omitted); Basile v. Connolly, 513 F. App’x 92, 93–94 (2d Cir. 2013) (same);
Spiteri v. Russo, No. 12-CV-2780, 2013 WL 4806960, at *14 (E.D.N.Y. Sept. 7, 2013) (same).
In addition, Plaintiff’s claim against Assistant District Attorney Andrews must be
dismissed because prosecutors performing duties related to their prosecutorial function are
protected by absolute immunity. See Burns v. Reed, 500 U.S. 478, 486 (1991) (“[P]rosecutors
are absolutely immune from liability under § 1983 for their conduct in initiating a prosecution
and in presenting the State’s case.” (internal quotation marks and citation omitted)); Shmueli v.
City of New York, 424 F.3d 231, 236 (2d Cir. 2005) (holding that a prosecutor acting “within the
scope of his duties in initiating and pursuing a criminal prosecution is immune from a civil suit
for damages under § 1983”); see also Santulli v. Russello, 519 F. App’x 706, 711 (2d Cir. 2013)
(“It is well settled that a prosecutor is entitled to absolute immunity for acts undertaken pursuant
to her traditional function as an advocate in the prosecutorial process.”); Bankhead v. Chu, No.
10-CV-510, 2010 WL 935371, at *2 (E.D.N.Y. Mar. 11, 2010) (dismissing claim for monetary
damages against an assistant district attorney in charge of the plaintiff’s criminal case, based on
absolute immunity).
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iii. Plaintiff’s conspiracy claim
Plaintiff argues that Defendants conspired to have him waive his constitutional and
statutory right to a speedy trial. In order to state a § 1983 conspiracy claim a plaintiff must
allege: “(1) an agreement between two or more state actors or an agreement between a state actor
and private party; (2) concerted acts to inflict an unconstitutional injury; and (3) an overt act
done in furtherance of the goal of causing damages.” Coggins v. Cnty. of Nassau, --- F. Supp. 2d
---, ---, 2013 WL 6224631, at *9 (E.D.N.Y. Dec. 2, 2013) (citing Ciambriello v. Cnty. of Nassau,
292 F.3d 307, 324–25 (2d Cir. 2002)); Sclafani v. Spitzer, 734 F. Supp. 2d 288, 297 (E.D.N.Y.
2010) (same). A claim of conspiracy to deprive Plaintiff of his constitutional rights cannot stand
where the state actors in question have absolute immunity. See Carvel v. New York, 369 F.
App’x 269, 270 (2d Cir. 2010) (recognizing that state court Justice “enjoys the benefit of
absolute judicial immunity” from plaintiff’s claim of conspiracy under § 1983); Pinaud v. Cnty.
of Suffolk, 52 F.3d 1139, 1148 (2d Cir. 1995) (“[S]ince absolute immunity covers virtually all
acts, regardless of motivation, associated with the prosecutor’s function as an advocate, when the
underlying activity at issue is covered by absolute immunity, the plaintiff derives no benefit from
alleging a conspiracy.” (alteration, citation and internal quotation marks omitted)); Swinton v.
City of New York, 785 F. Supp. 2d 3, 9 (E.D.N.Y. 2011) (finding that “the § 1983 conspiracy
claims against the [assistant District Attorneys] cannot survive, as ‘even a conspiracy among
prosecutors is shielded by absolute immunity.’” (citing Pinaud, 52 F.3d at 1148)). Without any
state actors with whom Whitehair could have conspired to deprive Plaintiff of his Constitutional
rights, Plaintiff fails to state a claim of conspiracy pursuant to § 1983.
However, even if any of the state actors could be properly named as Defendants in a
conspiracy claim, Plaintiff’s conclusory allegations that Defendants conspired against him,
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without any factual assertions to support the claim, are insufficient to state a plausible conspiracy
claim. See Ciambriello, 292 F.3d at 325 (dismissing § 1983 conspiracy claim where allegations
in the complaint were “strictly conclusory,” lacked any “details of time and place,” and the
Plaintiff “failed to specify in detail the factual basis necessary to enable defendants intelligently
to prepare their defense” (alteration, citation and internal quotation marks omitted)); Argro v.
Osborne, No. 12-CV-910, 2013 WL 869393, at *7 (N.D.N.Y. Mar. 6, 2013) (“In the absence of
any facts indicating a meeting of the minds or agreement between [defendants], Argro’s
allegation of ‘conspiracy’ is conclusory and fails to state a claim of conspiracy to violate her
constitutional rights under section 1983.”) Plaintiff’s claim of conspiracy pursuant to § 1983 is
therefore dismissed for failure to state a claim.
c.

Leave to Amend

While ordinarily the Court would allow Plaintiff an opportunity to amend his
Complaint, see Cruz v. Gomez, 202 F.3d 593, 597–98 (2d Cir. 2000), it need not afford that
opportunity here where it is clear from Plaintiff’s submissions that there is no possibility of a
plausible § 1983 claim against these Defendants. Therefore, any attempt to amend the
Complaint would be futile. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (denying leave
to amend a pro se complaint where amendment would be futile).
III. Conclusion
Plaintiff’s Complaint is dismissed for failure to state a claim upon which relief may be
granted. 28 U.S.C. § 1915A; § 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

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pauperis status is denied for purpose of an appeal. Coppedge v. United States, 369 U.S. 438,
444–45 (1962).
SO ORDERED:

s/MKB
MARGO K. BRODIE
United States District Judge
Dated: April 28, 2014
Brooklyn, New York

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