In Re: Whitfield

Filing 24

MEMORANDUM AND ORDER: The amended complaint, is DISMISSED as to Judge Kusakabe, Robert Ratanski, Robert J. Epstein, Jane Doe Clerk, Phillip Calandrillo, Denise Brockington, Neagia Drew, John Does and Jane Does. The Clerk of Court shall amend the caption to reflect the dismissal of these defendants. The amended complaint shall proceed against Sgt. J. Williams and Lt. Barkley. It is plaintiffs obligation to effect service of process as to these defendants pursuant to Rule 4 of the Fede ral Rules of Civil Procedure. Plaintiff shall promptly advise the Court once defendants Williams and Barkley have been served. The case is referred to the Honorable Lois Bloom, United State Magistrate Judge, for pretrial supervision. Although plain tiff paid the filing fee, 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 the purpose of appeal. SO ORDERED by Judge William F. Kuntz, II on 1/8/2016. C/mailed. (Docket Sheet Updated.) (Latka-Mucha, Wieslawa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

-------------------------------------------------------)(
LORREN WHITFIELD,
Plaintiff,

MEMORANDUM
AND ORDER

-againstDEAN TSUTAE KUSAKABE, ROBERT
J. EPSTEIN, ROBERT RATANKSI,
SGT. J. WILLIAMS, Supvser/LT.
BARKLEY, JOHN DOE/S (the two
bailiff/s that handcuffed me again) JANE
DOE (Clerk), PHILLIP CALANDRILLO,
DENISE BROCKINGTON, NEAGIA
DREW, JOHN DOES, JANE DOES,

15-CV-4827 (WFK) (LB)

Defendants.

-------------------------------------------------------)(
WILLIAM F. KUNTZ, II, United States District Judge:
On September 16, 2015, plaintiffLorren Whitfield, appearingpro se, filed this action against
various defendants and also subsequently filed a "Notice of Preliminary Injunction and Order to
Show Cause." Plaintiff paid the statutory filing fee to commence this action. By Memorandum and
Order dated October 16, 2015, the Court dismissed certain claims and defendants as frivolous,
denied plaintiff's Order to Show Cause and directed plaintiff to file an amended complaint. On
November 16, 2015,plaintifffiledanamendedcomplaintpursuantto 42 U.S.C. §§ 1983, 1985, 1986
and 1988 and 18 U.S.C. §§ 1961-1968.
The amended complaint shall proceed as to defendants Sgt. Williams and Lt. Barkley based
on plaintiff's allegations of false arrest, false imprisonment and illegal search and seizure as set forth
therein. See Am. Compl. at 6-8. However, the amended complaint is dismissed as to Family Court
Judge Kusakabe, Robert J. Epstein, Clerk of Family Court Robert Ratanski, Jane Doe Clerk, Phillip
Calandrillo, Denise Brockington, Neagia Drew, John Does and Jane Does for the reasons set forth
below.

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 will be considered "plausible
on its face" "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). Pro se complaints are held to less stringent standards than pleadings drafted by
attorneys and the Court is required to read the plaintiffs pro se complaint liberally and interpret it
as raising the strongest arguments it suggests. Erickson v. Pardus, 551 U.S. 89 (2007); Hughes v.

Rowe, 449 U.S. 5, 9 (1980); Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191-93 (2d Cir.
2008). "In addition to liberally construing pro se complaints, a district court should not dismiss a

prose complaint without granting the plaintiff leave to amend if 'a liberal reading of the complaint
gives any indication that a valid claim might be stated."' Andersen v. Young & Rubicam Advertising,
487 F. App'x 675, 676 (2d Cir. 2012) (citations omitted).
Even if plaintiff has paid the court's filing fee, a district court may dismiss the action, sua

sponte, if it determines that the action is frivolous, see Fitzgerald v. First East Seventh Street
Tenants Corp., 221 F.3d 263, 363-64 (2d Cir. 2000). An action "is frivolous when either: (1) the
factual contentions are clearly baseless, such as when allegations are the product of delusion or
fantasy; or (2) the claim is based on an indisputably meritless legal theory." Livingston v.

Adirondack Beverage Co., 141 F .3d 434, 43 7 (2d Cir. 1998) (internal quotation marks and citation
omitted); see also Scanlon v. Vermont, 423 F. App'x 78, 79 (2d Cir. 2011) (summary order) ("An
action is frivolous if it lacks an arguable basis in law and fact - i.e., where it is 'based on an
indisputably meritless legal theory' or presents 'factual contentions [which] are clearly baseless."'
(quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).
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DISCUSSION
Judge Kusakabe and the Clerk of Family Court Ratanski have absolute immunity. It is wellsettled that judges have absolute immunity from suit for judicial acts performed in their judicial
capacities. Mireles v. Waco, 502 U.S. 9, 11 (1991) (percuriam)(''judicial immunity is an immunity
from suit, not just from the ultimate assessment of damages.") (citation omitted); Stump v.

Sparkman, 435 U.S. 349, 356 (1978). 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 (quoting Stump, 435
U.S. at 356); Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir. 2009). Moreover, in cases of judicial
immunity, a Court may dismiss a complaint, sua sponte, without affording a hearing or other notice
of dismissal. See Tapp v. Champagne, 164 F. App'x 106 (2d Cir. 2006) (affirming sua sponte
dismissal of§ 1983 claims against judges protected by absolute immunity); Montero v. Travis, 171
F.3d 757, 761 (2d Cir. 1999) (per curiam) ("A complaint will be dismissed as frivolous when it is
clear that the defendants are immune from suit.") (internal quotation and citation omitted); Fisch v.

Consulate General of Republic of Poland, Nos. 11 Civ. 4182, 11 Civ. 4183, 2011 WL 3847398
(S.D.N.Y. Aug. 30, 2011).
Similarly, the Clerk of Family Court Robert Ratanski and Jane Doe Clerk are also immune.

Rodriguez v. Weprin, 116 F.3d 62, 66 (2d Cir. 1997)'. "Even 'when functions that are more
administrative in character have been undertaken pursuant to the explicit direction of a judical officer
... that officer's immunity is also available to the subordinate."' Id at 67. Plaintiffs claims against
the court clerks are dismissed as they are entitled to immunity. See McGann v. Lange, No. 96 CV
859, 1996 WL 586798, at *2 (E.D.N.Y. Oct. 10, 1996); Caldwell v. James, No. 14 CV 5384, 2015
WL 427980, at *4 (E.D.N.Y. Jan. 30, 2015) (citations omitted).
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As to the remaining defendants, other than Sgt. J. Williams and Lt. Barkley, plaintiff fails
to comply with the Court's Memorandum and Order. Plaintiff fails to provide facts against
defendants Robert J. Epstein, Phillip Calandrillo, Denise Brockington, Neagia Drew, John Does and
Jane Does which would support a claim under the United States Constitution or federal laws.
Specifically, plaintiff fails to allege facts sufficient to show the existence of any conspiracy
designed to deprive him of his rights. See Brito v. Arthur, 403 F.App'x 620 (2d Cir. 2010) (quoting
Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir. 1977) (per curiam)). Claims of conspiracy that are
vague and provide no basis in fact must be dismissed. Gallop v. Cheney, 642 F.3d 364, 369 (2d Cir.
2011) (finding allegations of conspiracy "baseless" where the plaintiff "offer[ ed] not a single fact
to corroborate her allegation of a 'meeting of the minds' among the conspirators'"); Webb v. Goard,
340 F.3d 105, 110-11 (2d Cir. 2003) (to maintain a conspiracy action, the plaintiff "must provide
some factual basis supporting a meeting of the minds"); Gyadu v. Hartford Ins. Co., 197 F.3d 590,
591 (2d Cir. 1999) (per curiam); Polur v. Rajfe, 912 F.2d 52, 56 (2d Cir. 1990) (citations omitted).
Furthermore, there are no facts against these defendants to support a claim pursuant to the
Racketeering Influenced and Corrupt Organizations Act ("RICO"), Pub. L. No. 91-452, tit. IV, 84
Stat. 922, 941-48 (1970) (codified as amended at 18 U.S.C. §§ 1961-1968).
Plaintiffs amended complaint against these defendants either fails to comply with the
Court's Memorandum and Order or relies on conclusions with no facts to support these claims and
as such are frivolous. Although all allegations contained in the amended complaint are assumed to
be true, this tenet is "inapplicable to legal conclusions." Ashcroftv. Iqbal, 556 U.S. 662, 678 (2009).
The Federal Rules of Civil Procedure do not require "detailed factual allegations," but demand
"more than an unadorned, the-defendant-unlawfully-harmed-me accusation[s]." Id.

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CONCLUSION

For the reasons set forth above, the amended complaint, is DISMISSED as to Judge
Kusakabe, Robert Ratanski, Robert J. Epstein, Jane Doe Clerk, Phillip Calandrillo, Denise
Brockington, Neagia Drew, John Does and Jane Does. The Clerk of Court shall amend the caption
to reflect the dismissal of these defendants.
The amended complaint shall proceed against Sgt. J. Williams and Lt. Barkley. It is
plaintiffs obligation to effect service of process as to these defendants pursuant to Rule 4 of the
Federal Rules of Civil Procedure. Plaintiff shall promptly advise the Court once defendants
Williams and Barkley have been served. The case is referred to the Honorable Lois Bloom, United
State Magistrate Judge, for pretrial supervision.
Although plaintiff paid the filing fee, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal would not be taken in good faith and therefore informa pauperis status is denied for
the purpose of appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
Dated: Brooklyn, New York
January 8, 2016

/S/ Judge William F. Kuntz, II
WLLIAMF.K

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