Faltine et al v. Murphy et al
MEMORANDUM AND ORDER granting 2 Motion for Leave to Proceed in forma pauperis; granting 3 Motion for Leave to Proceed in forma pauperis; granting 10 Motion for Leave to Proceed in forma pauperis; denying 17 Motion for Pre Motion Conferenc e; denying 18 Motion for Pre Motion Conference: For the reasons set forth in the attached Memorandum and Order, no pre-motion conference is necessary, and the complaint is dismissed in its entirety. Although plaintiffs have paid the filing fee t o initiate this action, 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. Th e Clerk of Court is directed to enter judgment, mail a copy of this order and judgment to plaintiffs at the addresses listed for them on the docket, note the mailings on the docket, and close the case. Ordered by Judge Roslynn R. Mauskopf on 6/3/2016. (Mauskopf, Roslynn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
KIAMA FALTINE; KIJAFA FALTINE,
MEMORANDUM AND ORDER
15-CV-3961 (RRM) (LB)
-againstMARTIN MURPHY; ELIZABETH
NIXON-FRIEDHEIM; LEILA C. ROSINI;
LANZA MAXIMILI; JOHN DOE ARRESTING
OFFICER OF KIJAFA FALTINE,
ROSLYNN R. MAUSKOPF, United States District Judge.
On July 6, 2015, plaintiffs Kiama Faltine (“Kiama”) and Kijafa Faltine (“Kijafa”), who,
at the time of filing the complaint, were incarcerated at Wyoming Correctional Facility and
Orleans Correctional Facility, respectively, filed the instant pro se action. Plaintiffs’
submissions, including their complaint and applications to proceed in forma pauperis (“IFP”),
were not signed by either plaintiff but rather were signed by an “authorized representative.”
Plaintiffs also failed to include signed Prisoner Authorization forms.
Accordingly, by letter dated July 9, 2015, plaintiffs were informed that their complaint
and IFP applications had to contain their original signatures and that, as prisoners, they must also
complete a Prisoner Authorization form to be submitted with the IFP applications. (Doc. Nos. 4–
5.) Plaintiffs were provided with the proper forms and instructed that in order to proceed, they
had to return the signed complaints, signed IFP applications, and the Prisoner Authorization
forms within 14 days of receipt of the letter. (Id.)
On July 24, 2015,1 and July 28, 2015, Kijafa and Kiama, respectively, submitted signed
complaints. On August 7, 2015, plaintiffs paid the filing fee to initiate this action. As elaborated
below, the action is dismissed because it is barred by the doctrine enunciated under Heck v.
Humphrey, 512 U.S. 477, 487 (1994), defendants Murphy, Rosini, and Calcatera are immune
from suit, and the claims against defendants Nixon-Freidheim, Maximili, and Doe lack an
arguable basis in law or fact.
Plaintiffs are brothers who were convicted of two separate crimes. (Compl. (Doc. Nos. 8,
9)2 at 2 § III.) They bring this action pursuant to 42 U.S.C. § 1983 and 18 U.S.C. §§ 241, 242,
against the arresting officers, legal aid attorneys, prosecutor, and judge associated with their
criminal actions.3 Plaintiffs’ complaint is rambling and difficult to follow. They allege that they
was falsely arrested and coerced into pleading guilty. Plaintiffs appear to raise a claim that they
are somehow exempt from state criminal prosecution because they are “sentient beings who are
secured by the uniform commercial code.” (Compl. at 2 § III.) They assert that their convictions
are “null and void” because they are not members of the military “nor were the accusations
(that are constitutionally bound) were [sic] committed on the Sea for this matter to be subjected
to maritime jurisdictions under statutory law which are solely for corporations that none of these
flesh and blood men born to the Faltine family are.” (Id.) Plaintiffs seek monetary damages in
the amount of one billion dollars. (Id. at 8.)
Although Kijafa’s signed complaint was entered on the docket on July 24, 2015, the docket references July 6, 2015
as the “date filed.” (See Doc. No. 8.)
The complaints filed are identical save for the fact that they each bear a different signature – one bears Kijafa’s
signature (Doc. No. 8) and the other Kiama’s signature (Doc. No. 9).
Plaintiffs have brought claims pursuant to 18 U.S.C. §§ 241, 242, alleging a conspiracy to deprive plaintiffs of
their constitutional rights. Plaintiffs lack standing to enforce criminal statutes for which there is no private right of
action. Hill v. Didio, 191 F. App’x 13, 14–15 (2d Cir. 2006) (summary order). Therefore, plaintiffs’ claims brought
pursuant to §§ 241 and 242 must be dismissed as against all defendants.
STANDARD OF REVIEW
As plaintiffs are proceeding pro se, their complaint is held to less stringent standards than
pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 93 (2007). The Court is obliged
to construe plaintiffs’ pleadings liberally and to interpret the complaint as raising the strongest
arguments it suggests. Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006). Under 28 U.S.C.
§ 1915A, the Court must review prisoner civil complaints against governmental actors and
“dismiss . . . any portion of [a] complaint [that] is frivolous, malicious, or fails to state a claim
upon which relief may be granted,” or that “seeks monetary relief from a defendant who is
immune from such relief.” This requirement applies both where an inmate has paid the filing fee
and where he is proceeding IFP. See Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir. 1999) (per
Even if a plaintiff has paid the court’s filing fee, a district court may dismiss the case, sua
sponte, if it determines that the Court lacks subject matter jurisdiction or the action is frivolous.
Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363–64 (2d Cir. 2000); see also
Hawkins–El III v. AIG Fed. Sav. Bank, 334 F. App’x 394, 395 (2d Cir. 2009) (affirming district
court’s sua sponte dismissal of fee paid frivolous complaint); Paige v. City of New York, No. 10CV-5469, 2011 WL 3701923, at *2 (E.D.N.Y. Aug. 23, 2011) (even where a pro se plaintiff “has
paid the filing fee, a district court has the inherent power to dismiss a case, sua sponte, if it
determines that the action is frivolous or that the court lacks jurisdiction over the matter”).
“A complaint will be dismissed as ‘frivolous’ when ‘it is clear that the defendants are
immune from suit.’” Montero v. Travis, 171 F.3d 757, 760 (2d Cir. 1999) (quoting Neitzke v.
Williams, 490 U.S. 319, 325, 327, (1989)); see also Ashmore v. Prus, No. 13-CV-2796, 2013
WL 3149458, at *2 (E.D.N.Y. June 19, 2013) (when it is clear that the defendants are immune
from suit, a dispositive defense appears on the face of the complaint, and the action can be
dismissed as frivolous). A claim is also frivolous when it lacks an arguable basis in law or fact.
Neitzke, 490 U.S. at 325.
I. Heck v. Humphrey - § 1983
In order 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) (citation omitted). 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. Section 1983 “does not create a federal
right or benefit; it simply provides a mechanism for enforcing a right or benefit established
elsewhere.” Morris–Hayes v. Bd. of Educ. of Chester Union Free Sch. Dist., 423 F.3d 153, 159
(2d Cir. 2005) (citing Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)).
At the outset, the Court notes that to the extent that plaintiffs seek to challenge the fact or
duration of their confinement resulting from their state convictions and/or sentences, their sole
federal remedy is by way of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).
To the extent that plaintiffs complain about their false arrests, their guilty pleas, attorney
ineffectiveness, prosecutorial misconduct, and judicial misconduct during their criminal
proceedings, they have raised claims which necessarily affect the validity of their criminal
convictions. Plaintiffs cannot recover under § 1983 for alleged wrongful incarceration unless
they prove that “the 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.” Heck, 512 U.S. at
487; see also Poventud v. City of New York, 750 F.3d 121 (2d Cir. 2014). Here, plaintiffs have
not alleged or shown that their convictions or sentences were reversed or invalidated as required
by Heck. Accordingly, to the extent plaintiffs seek damages for their incarceration, their claims
must be dismissed. See 28 U.S.C. § 1915A.
Further, plaintiffs’ reliance on the UCC or a so-called “sovereign citizen” theory to assert
that they are exempt from prosecution and beyond the jurisdiction of the state or federal courts
lacks an arguable basis in law or fact. Similar arguments have been repeatedly rejected by
federal courts. See, e.g., United States v. Benabe, 654 F.3d 753, 767 (7th Cir. 2011); Monroe v.
Beard, 536 F.3d 198, 203 n.4 (3d Cir. 2008); Berman v. Stephens, No. 4:14-CV-860-A, 2015
WL 3622694, at *2 (N.D. Tex. June 10, 2015) (collecting cases); Muhammad v. Smith, No. 3:13CV-760, 2014 WL 3670609, at *2–3 (N.D.N.Y. July 23, 2014) (“Theories presented by
redemptionist and sovereign citizen adherents have not only been rejected by the courts, but also
recognized as frivolous and a waste of court resources.”); Bey v. New York, No. 11-CV-3296,
2012 WL 4370272, at *6 (E.D.N.Y. Sept. 21, 2012).
A. Judicial Immunity – Judge Martin Murphy
Plaintiffs’ claims against Judge Martin Murphy, who presumably presided over aspects of
the underlying state criminal proceedings, must be dismissed as plaintiffs’ claims are foreclosed
by absolute immunity. Judges have absolute immunity for acts performed in their judicial
capacities. Mireles v. Waco, 502 U.S. 9, 11 (1991); Stump v. Sparkman, 435 U.S. 349, 356
(1978); Dupree v. Bivona, No. 07-CV-4599, 2009 WL 82717, at *1–2 (2d Cir. Jan. 14, 2009);
Colson v. N.Y. Police Dept., No. 13-CV-5394, 2015 WL 64688, at *6 (E.D.N.Y. Jan. 5, 2015).
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, 13 (quotation marks omitted); accord Horton v. City of
New York, No. 14-CV-4279, 2014 WL 3644711, at *1 (E.D.N.Y. July 22, 2014); Edo v. Queens
Cty. Crim. Ct., No. 13-CV-7089, 2013 WL 6732811, at *1 (E.D.N.Y. Dec. 19, 2013); Gamez v.
U.S. Dist. Ct. E. and S. Dist. of–Tyranny, No. 11-CV-4068, 2011 WL 3949807, at *1 (E.D.N.Y.
Sept. 6, 2011). Accordingly, because Judge Murphy is clearly immune from liability in this
action, plaintiffs’ claims for monetary damages against him are dismissed as frivolous.
B. Prosecutorial Immunity – Assistant District Attorney Leila C. Rosini
Plaintiffs’ complaint fails to make any factual allegations against Kings County Assistant
District Attorney Leila C. Rosini. Further, to the extent that plaintiffs seek monetary damages
against Rosini in her official capacity, their claims are barred by the Eleventh Amendment. See,
e.g., Ying Jing Gan v. City of New York, 996 F.2d 522, 536 (2d Cir. 1993) (holding that a district
attorney, when prosecuting a criminal matter, represents the state not the county, and therefore is
immune from suit under the Eleventh Amendment); see also Rodriguez v. Weprin, 116 F.3d 62,
66 (2d Cir. 1997) (finding two district attorneys immune under the Eleventh Amendment from a
suit brought against them in their official capacities). To the extent that plaintiffs bring suit
against Rosini in her official capacity, their action is barred by absolute prosecutorial immunity.
Moreover, the law is clear 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 federal and state law. Shmueli v. City of New York, 424 F.3d 231, 236 (2d Cir.
2005) (quoting Imbler v. Pachtman, 424 U.S. 409, 410 (1976)); Othman v. City of New York, No.
13-CV-4771, 2015 WL 1915754, at *3 (E.D.N.Y. Apr. 27, 2015). Absolute immunity extends to
acts such as “initiating a prosecution and presenting the case at trial” or at other court
proceedings. Hill v. City of New York, 45 F.3d 653, 661 (2d Cir. 1995) (“Prosecutorial immunity
from § 1983 liability is broadly defined, covering virtually all acts, regardless of motivation,
associated with the prosecutor’s function as an advocate.” (internal quotation marks and
alterations omitted)). Accordingly, to the extent that plaintiffs bring these claims against
defendant Rosini for her role in prosecuting their criminal actions, their claims are barred by
prosecutorial immunity. See Imbler, 424 U.S. at 431, 431 n.34 (holding that prosecutors are
absolutely immune even if they willfully suppress exculpatory information); see also Dory v.
Ryan, 25 F.3d 81, 83 (2d Cir. 1994) (holding that absolute immunity protects prosecutors even if
they conspire to present false evidence at trial). Accordingly, because Rosini – a Kings County
Assistant District Attorney – is immune from suit, plaintiffs’ claims for monetary damages
against her are dismissed as frivolous. See 28 U.S.C. § 1915A.
III. Defense Attorneys – Thomas Nixon-Friedheim and Elizabeth Calcatera
Plaintiffs’ claims against defendants Nixon-Friedheim and Calcatera, who are alleged to
have been Kiama’s and Kijafa’s respective defense attorneys in the underlying criminal matters,
cannot survive as a matter of law because there was no state action. “It is well-settled that
private attorneys and law firms . . . do not act under color of state law and are not state actors for
purposes of § 1983 simply by virtue of their state-issued licenses to practice law.” Manko v.
Steinhardt, No. 11-CV-5430, 2012 WL 213715, at *4 (E.D.N.Y. Jan. 24, 2012) (citing Fine v.
City of New York, 529 F.2d 70, 74 (2d Cir. 1975) (private attorney not a state actor)); see also
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 court-appointed
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.”). 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.” Delarosa v. Serita, No. 14CV-737, 2014 WL 1672557, at *3 (E.D.N.Y. Apr. 28, 2014); see also 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 Cty., 454 U.S. at 325)); 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 Weprin, 116 F.3d at
65–66); Shorter v. Rice, No. 12-CV-111, 2012 WL 1340088, at *4 (E.D.N.Y. Apr. 10, 2012)
(“[N]either public defenders, such as Legal Aid attorneys, nor court-appointed counsel, nor
private attorneys, act under the color of state law merely by virtue of their position.”). Therefore,
plaintiffs’ claims against Nixon-Friedheim and Calcaterra cannot proceed. See George v. Park,
No. 07-CV-3546, 2007 WL 2769401 at *2 (E.D.N.Y. Sept. 21, 2007) (dismissing fee-paid §
1983 claim against defense counsel); see also Grant v. Hubert, No. 09-CV-1051, 2009 WL
764559, at *1 (E.D.N.Y. Mar. 20, 2009) (“Section 1983 was enacted to redress civil rights
violations by persons acting under color of State law and should not be used by clients
disappointed with the performance of their attorneys.” (internal quotation marks omitted)).
IV. False Arrest – Lanza Maximili and John Doe
The sole allegation against defendants Maximili and Doe – New York City police
officers – is that they arrested Kiama and Kijafa. (Compl. at 2 § III.) Liberally construed,
plaintiffs may be seeking to assert a claim for false arrest. In order to prevail on their § 1983
claim for false arrest, Kiama and Kijafa must each show that (1) defendant intended to confine
him, (2) plaintiff was conscious of the confinement, (3) plaintiff did not consent to the
confinement, and (4) the confinement was not otherwise privileged. Singer v. Fulton Cty.
Sheriff, 63 F.3d 110, 118 (2d Cir. 1995); Jackson v. City of New York, 939 F. Supp. 2d 235, 248
(E.D.N.Y. 2013). However, a person who has been convicted of the crime for which he was
arrested cannot state a claim for false arrest because his conviction establishes that his
confinement was grounded on probable cause; therefore, it was privileged. Cameron v. Fogarty,
806 F.2d 380, 388–89 (2d Cir. 1986) (“Where the civil rights plaintiff has been convicted of the
offense for which he was arrested, we have in effect accepted the fact of that conviction as
conclusive evidence of good faith and reasonableness of the officer’s belief in the lawfulness of
the arrest. . . . [W]here law enforcement officers have made an arrest, the resulting conviction is
a defense to a § 1983 action asserting that the arrest was made without probable cause.”); see
also Chillemi v. Town of Southampton, 943 F. Supp. 2d 365, 376 (E.D.N.Y. 2013) (“[A]
conviction based on a voluntary plea of guilty . . . establishes probable cause, thereby precluding
a subsequent claim of false arrest and false imprisonment.”); Johnson v. Pugh, No. 11-CV-385,
2013 WL 3013661, at *2 (E.D.N.Y. June 18, 2013) (finding that plaintiff’s guilty plea
established probable cause for his arrest, rendering it privileged and barring his claim for false
arrest). Moreover, a successful § 1983 claim for false arrest in this case would “negate an
element of the offense[s] of which [plaintiffs have] been convicted.” Heck, 512 U.S. at 486 n.6;
see also El v. City of New York, No. 14-CV-9055, 2015 WL 1873099, at *6 (S.D.N.Y. Apr. 23,
2015). Here, plaintiffs allege that they pled guilty to the charges against them. (Compl. at 2
§ III.) Accordingly, they are precluded from bringing a false arrest charge related to their arrests.
The complaint is dismissed in its entirety. Although plaintiffs have paid the filing fee to
initiate this action, 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). The Clerk
of Court is directed to enter judgment, mail a copy of this order and judgment to plaintiffs at the
addresses listed for them on the docket, note the mailings on the docket, and close the case.
Roslynn R. Mauskopf
ROSYLNN R. MAUSKOPF
United States District Judge
Dated: Brooklyn, New York
June 3, 2016
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