Ward v. City of New York et al

Filing 9

MEMORANDUM & ORDER: Claims against Judge Lenora Gerald; the State of New York Office of Court Administration; Queens DA Richard Brown; Deputy Bureau Chiefs Floyd Herring and Scott Kessler; ADAs Kevin Fogarty, Taylor Piscionere, Kelley Sesso ns, Angela Harper, and Leanne Staines; Clerk of Queens County Civil Court Maureen Giddens; and Deputy Clerk John Barry are dismissed. The Clerk of Court is respectfully directed to update the case caption accordingly. Although Ward's remainin g claims may ultimately be subject to dismissal, the Court declines to dismiss them at this time because the issues raised are sufficiently complex to warrant notice and motion practice. Ward's 2 motion to proceed in forma pauperis ("IFP") is therefore granted. The United States Marshals Service is respectfully directed to serve the summons and complaint upon the remaining defendants without prepayment of Ward's fees. Ward is directed to provide addre sses for these defendants within 30 days of the date of this Order. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore IFP status is denied for the purpose of any appeal. SO ORDERED by Judge Carol Bagley Amon on 5/23/2016. (Docket sheet updated.) C/mailed. (Latka-Mucha, Wieslawa)

FILED

IN CLERK'S OFFICE
US DISTRICT COURT E.D.N.Y

*
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

MAY 2 3 2015

*

BROOKLYN OFFICE

-------------------------------------------------------------)(
KENNETH J. WARD, JR,
NOT FOR PUBLICATION
MEMORANDUM & ORDER
15-CV-4175 (CBA) (RER)

Plaintiff,
-against-

THE CITY OF NEW YORK, a municipal entity;
Queens County District Attorney RICHARD BROWN;
Judge LENORA GERALD individually and as a State
Actor J.S.C. IDV Family Integrated Court; Deputy Bureau
Chief FLOYD HERRING; Deputy Bureau Chief SCOTT
KESSLER; Supervisory Assistant District Attorney
KEVIN FOGARTY; Assistant District Attorney TAYLOR
PISCIONERE; Assistant District Attorney KELLEY SESSONS;
Assistant District Attorney ANGELA HARPER; Assistant
District Attorney LEANNE STAINES; Clerk of the County
Queens Civil Court MAUREEN GIDDENS; Deputy Clerk
JOHN BARRY; Court Officer MAJOR LOWE; Court Officer
LIEUTENANT O'BRIEN; Court Officer MARIE BENNETT;
JOHN DOE Shield #6814; JOHN DOE Shield #3814;
JOHN DOE Shield #7910; JOHN DOE Shield #6871;
THE STA TE OF NEW YORK, OFFICE OF COURT
ADMINISTRATION; DOES #1-16, individually and as
members of New York Court System Queens County; NYPD
Detective CARL DIAQUOI; NYPD Lieutenant JAMES
LOMBARDO; DOE 1-10, individually and as Members of
the New York City Police Department,
Defendants.

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AMON, United States District Judge:
Plaintiff Kenneth J. Ward filed this prose action requesting injunctive and declaratory
relief and monetary damages pursuant to 42 U.S.C. § 1983 on July 15, 2015, and moves for leave
to proceed in forma pauperis ("IFP") pursuant to 28 U.S.C. § 1915. For the reasons set forth
below, the Court grants that motion, but dismisses a number of the defendants.

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BACKGROUND
War.d's complaint arises from two arrests. The facts surrounding Ward's first arrest are
sparsely pleaded, but involve a long-running dispute with his ex-wife, Teresa R. Rodriguez.
Rodriguez seems to have made domestic violence complaints against Ward, while Ward sought
rental income from Rodriguez for her time living in a property Ward owned. (D.E. # 1, Compl.,

,, 35-45.) The state-court proceedings were before state court Judge Lenora Gerald. (Id., 80.)
Ward claims Judge Gerald would not hear the rental-income aspect of the case, was biased in
favor of Rodriguez, and delayed the proceedings causing him financial hardships. (See id. ,, 41,

44-45,47-52,80, 173-74, 177-79, 182, 191-92, 194, 199-200,202-03,211-17,227,233,24445, 249, 252-54.) At some point, Rodriguez was granted an order of protection. (See id.,, 58,
222.) Ward was arrested for violating that order after Rodriguez stated that he was at her house
(the "harassment arrest"). (Id.,, 58, 222.) Defendant N.Y.P.D. Detective Carl Diaquoi
executed that arrest. (Id. , 58.) Ward alleges that Diaquoi knew that he was not at the house
because Diaquoi had seen pictures on Rodriguez's phone revealing that Ward was not there. (Id.

,, 61, 223.) Ward further alleges that defendant N.Y.P.D. Lieutenant James Lombardo and
N. Y.P.D. Officers John Does 1-10 (the "NYPD John Does") participated in the arrest. (Id.

,, 74, 76, 240, 243.)
Ward's second arrest arose out of a court hearing on his Notice of Petition for
nonpayment of rent against Rodriguez in Queens Civil Court. (Id., 252.) Ward was
accompanied to his appearance by Etan Leibovitz. 1 (Id., 255.) While they sat in the back of the
courtroom, Ward alleges that defendant Court Officer Marie Bennett would not let them leave
before Rodriguez did because Ward was a man and Rodriguez was a woman. (Id. ,, 257-58.)

1
As discussed further below, Ward's complaint alleges a number of incidents that happened only to Leibovitz, not
to Ward. Because those allegations are irrelevant for the claims brought here by Ward, the Court omits them.

2

When Bennett did then let Ward and Leibovitz leave, she followed them. (Id.,, 260-62.)
Leibovitz told Bennett he was going to record Bennett, and Bennett called for backup. (Id.
,, 262-63.) Defendant Court Officer Lieutenant O'Brien and defendants John Doe Shield
# 6814, # 3814, # 7910, and John Doe Court Officers 1-15 (the "Court Officer John Does") met
Bennett, Ward, and Leibovitz-who was recording using his cell phone-at the elevators. (Id.
,, 265-66.) The officers brought Leibovitz to a bench outside an office, and Ward followed.
(Id., 280.) A Court Officer John Doe told Ward to leave, but he sat down next to Leibovitz
instead. (Id.

~

284.)

Defendant Court Officer Major Lowe then emerged from the office and allegedly told
Lieutenant O'Brien to give Ward an order and then arrest him. (Id. , 287.) O'Brien told Ward
that Ward could go ifhe got up and left then. (Id., 288.) Leibovitz asked why Ward had to
leave and offered to delete the video. (Id. ,, 289-91.) But when Lowe told O'Brien to "give an
unlawful order to Mr. Ward and then arrest him," Leibovitz stood to continue recording; Lowe
then took Leibovitz's phone and returned to the office. (Id. , 292.) Ward stood to leave, and
defendant John Doe Shield# 7910 and another Court Officer John Doe arrested him (the
"obstruction arrest"). (Id., 293.) Leibovitz was subsequently also arrested. (Id., 296.) 2
Ward was charged with obstructing governmental administration in the second degree.
(Id., 336.) Specifically, the criminal complaint3 stated that when Lieutenant O'Brien
approached Leibovitz, Ward "stepped in between Lieutenant O'Brien and [Leibovitz] and

2

Ward's complaint describes in detail Leibovitz's holding and arraignment, but since those details are irrelevant to
the claims brought here, the Court omits them.
3 The Court liberally construes Ward's pleading here; the complaint actually recounts the criminal complaint against
Leibovitz, not against Ward. But because Ward earlier alleged that he was arrested for obstructing government
administration, (see id.~ 58), the Court will assume that the criminal allegations were the same.

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obstructed the above mentioned investigation .... [T]he defendants were yelling and screaming
in the hallways of the above mentioned location causing a crowd to gather." (Id.)
Queens County Assistant District Attorney ("ADA") Fogarty and ADA Piscionere
(Id.~

prosecuted the case against Ward and Leibovitz.

338.) On June 4, 2014, defendant

Piscionere called Leibovitz to tell him the case against him would be voluntarily dismissed for
lack of evidence on July 24, 2014.

(Id.~

347.) At the July 24, 2014, court appearance, however,

Piscionere told Ward and Leibovitz off the record that the case against Leibovitz would be
voluntarily dismissed only if Ward accepted an adjournment in contemplation of dismissal
("ACD"); Ward and Leibovitz declined.

(Id.~

386.) Piscionere then stated on the record that if

Ward pleaded to the charge, the county would dismiss the case against Leibovitz; they again
declined.

(Id.~

388.) Allegedly in retaliation, Piscionere stated that the county would be filing a

superseding information adding two counts of disorderly conduct against Ward.
Piscionere filed that superseding information on September 19, 2014.

(Id.~

396.) The

superseding information added defendant Bennett's additional statements that "the defendants
were yelling and screaming in the hallways of the above mentioned location causing a crowd to
gather and public inconvenience, annoyance, and alarm" and that Bennett "ordered the
defendants to disperse and that the defendants refused to comply with said order.''
At this time, ADA Fogerty became the primary prosecutor.

(Id.~

(Id.~

397.)

399.)

At a hearing on November 17, 2014, defendant Deputy Bureau Chief Floyd Herring
made an appearance for the county.

(Id.~

409.) Herring offered both Ward and Leibovitz

ACDs, which they declined. (Id.) Ward then contacted ADA Daniel O'Leary of the Integrity
Bureau of the Queens County District Attorney's Office ("QDAO"), alleging Herring

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orchestrated a 13-month cover up of QDAO misconduct. (Id., 422.) O'Leary referred the
matter to Deputy Bureau Chief Scott Kessler. (Id., 423.)
On June 10, 2015, Ward was acquitted after trial on the obstructing governmental
administration and disorderly conduct charges. (Id.,, 60, 218.)
Ward now brings the instant action alleging myriad violations of his federal and state
constitutional rights and of state law in connection with these two arrests.
STANDARD OF REVIEW

When considering a request to proceed IFP, the Court conducts an initial review of the
pleadings and dismisses the case if it determines that the allegations are frivolous or malicious,
fail to state a claim, or seek damages from an immune defendant. 28 U.S.C. § 1915(e)(2). To
avoid dismissal, a plaintiff must state a claim that is "plausible on its face" by alleging sufficient
facts to enable "the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Ashcroft v. Igbal, 556 U.S. 662, 678 (2009). In evaluating the sufficiency
of the pleadings, the Court must accept as true all factual allegations and draw all inferences in
the plaintiffs favor. See Larkin v. Savage, 318 F.3d 138, 139 (2d Cir. 2003) (per curiam).
Although a pro se complaint must contain sufficient factual allegations to meet the plausibility
standard, it is held to less stringent standards than pleadings drafted by lawyers. Erickson v.
Pardus, 551 U.S. 89, 94 (2007). The Court is obliged to construe the pleadings liberally and
interpret them as raising the strongest arguments they suggest. Abbas v. Dixon, 480 F.3d 636,
639 (2d Cir. 2007). Nevertheless, even prose pleadings must present sufficient allegations to put
the defendant on notice of "what the ... claim is and the grounds upon which it rests." Erickson,
551 U.S. at 93. Although courts will grant leave to amend where a prose pleading "gives any
indication that a valid claim might be stated," Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.

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2000), "leave to amend a complaint may be denied when amendment would be futile," Tocker v.
Philip Morris Cos., 470 F.3d 481, 491 (2d Cir. 2006).

DISCUSSION
Claims against the following defendants are dismissed pursuant to § 1915(e)(2)(B).
Because nothing in Ward's complaint suggests he could allege facts sufficient to make out
claims against these defendants, leave to amend is denied as futile. Tocker, 470 F.3d at 491.

A. State Court Judge Lenora Gerald
Judges have absolute immunity for acts performed in their judicial capacities, including
erroneous or bad-faith acts. Mireles v. Waco, 502 U.S. 9, 11 (1991); Stump v. Sparkman, 435
U.S. 349, 355-56 (1978); Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir. 2009). Judge Gerald
performed all of the acts that Ward alleges within her judicial function, (see, e.g., Compl.

~~

45,

48, 174), and therefore judicial immunity bars all claims against her.

B. The State of New York Office of Court Administration
Suits against the State of New York Office of Court Administration are barred by the
Eleventh Amendment. The Eleventh Amendment guarantees "that nonconsenting States may not
be sued by private individuals in federal court." Bd. of Trustees of Univ. of Alabama v. Garrett,
531 U.S. 356, 363 (2001). "The State Office of Court Administration is an arm of the state and
therefore immune." Posr v. Court Officer Shield No. 207, 180 F.3d 409, 414 (2d Cir. 1999).

C. The DA Defendants
The Eleventh Amendment also bars official-capacity claims against Queens DA Richard
Brown; Deputy Bureau Chiefs Floyd Herring and Scott Kessler; and ADAs Kevin Fogarty,
Taylor Piscionere, Kelley Sessons, Angela Harper, and Leanne Staines (together, the "DA
defendants"). Eleventh Amendment immunity extends to DAs and ADAs prosecuting criminal

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matters. See, e.g., Rodriguez v. Weprin, 116 F.3d 62, 66 (2d Cir. 1997) (Eleventh Amendment
bars claims against DAs and ADAs acting in their official capacities); Ying Jing Gan v. City of
New York, 996 F.2d 522, 536 (2d Cir. 1993) (DAs, when prosecuting a criminal matter,
represent the state, not the county, and are therefore immune from suit).
Similarly, absolute prosecutorial immunity bars personal-capacity claims against the DA
defendants. '" [A] state prosecuting attorney who acted within the scope of [her] duties in
initiating and pursuing a criminal prosecution ... is immune from a civil suit for damages'"
under§ 1983. Shmueli v. City of New York, 424 F.3d 231, 236 (2d Cir. 2005) (quoting Imbler
v. Pachtman 424 U.S. 409, 410, 431 (1976)). Absolute immunity extends to "virtually all acts
... associated with [the prosecutor's] function as an advocate." Hill v. City of New York, 45
F.3d 653, 661 (2d Cir. 1995) (internal quotation marks and citations omitted). Such conduct
includes initiating a prosecution, turning over exculpatory evidence, and even failing to tum over
exculpatory materials and conspiring to falsify testimony. See id. at 662 (failure to tum over
Brady material protected by absolute immunity); Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994)
(conspiracy to falsify evidence protected by absolute immunity). Despite Ward's conclusory
assertions that the DA defendants acted in investigative or administrative capacities, (see, e.g.,
Compl.

~

475), the incidents alleged all constitute prosecutorial duties for which the DA

defendants are absolutely immune.

D. The Court Administrator Defendants
Ward's factual allegations regarding Clerk of Queens County Civil Court Maureen
Giddens and Deputy Clerk John Barry do not state a plausible claim for relief because Ward does
not allege that they were personally involved in his alleged injuries. See Farrell v. Burke, 449
F.3d 470, 484 (2d Cir. 2006) ("It is well settled in this Circuit that personal involvement of

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defendants in alleged constitutional deprivations is a prerequisite to an award of damages under
§ 1983."). Although Ward states conclusorily that they acted "in concert" with others to cause
him injury, (see Compl.
Leibovitz alone. (See

~

68), the only facts he alleges concerning Giddens or Barry relate to

id.~~

68, 84-85, 352-55, 358, 380-84, 387, 389, 425.)

CONCLUSION
For the reasons set forth above, claims against Judge Lenora Gerald; the State of New
York Office of Court Administration; Queens DA Richard Brown; Deputy Bureau Chiefs Floyd
Herring and Scott Kessler; ADAs Kevin Fogarty, Taylor Piscionere, Kelley Sessons, Angela
Harper, and Leanne Staines; Clerk of Queens County Civil Court Maureen Giddens; and Deputy
Clerk John Barry are dismissed. The Clerk of Court is respectfully directed to update the case
caption accordingly.
Although Ward's remaining claims may ultimately be subject to dismissal, the Court
declines to dismiss them at this time because the issues raised are sufficiently complex to warrant
notice and motion practice. Ward's motion to proceed IFP is therefore granted. The United
States Marshals Service is respectfully directed to serve the summons and complaint upon the
remaining defendants without prepayment of Ward's fees. Ward is directed to provide addresses
for these defendants within thirty (30) days of the date of this Order.
The Court certifies pursuant to 28 U.S.C. § l 915(a)(3) that any appeal would not be taken
in good faith and therefore IFP status is denied for the purpose of any appeal. Coppedge v. United
States, 369 U.S. 438, 444-45 (1962).

, 2016
Dated: May Z--3
Brooklyn, New York

/S/ Judge Carol Bagley Amon

'ffimor ·

- -- caroi~gley
United States District Judge

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