Nabatov v. Monde et al

Filing 12

MEMORANDUM AND ORDER. Plaintiff's request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 is GRANTED for the purpose of this Order. The Complaint is DISMISSED for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)( B)(ii). 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. The Clerk of Court is directed to enter judgment in this case. Ordered by Judge Ann M Donnelly on 1/7/2016. (Zainulbhai, Yasmin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
STEVE NABATOV,
Plaintiff,

- versus -

MEMORANDUM DECISION
AND ORDER

15 Civ. 6881 (AMD) (LB)

SUZANNE MONDE; RANDY WALKER;
MARK HUTCHINS; ORLANDO COLE;
FIRE MARSHAL SANDREAS,
Defendants.

DONNELLY, District Judge:

Plaintiff Steve Nabatov, currently incarcerated at Clinton Correctional Facility,
brings this prose civil rights action pursuant to 42 U.S.C. § 1983 against a judge, attorney, fire
marshal, and private individuals, regarding his arrest and prosecution on state criminal charges.
Plaintiff's request to proceed informapauperis pursuant to 28 U.S.C. § 1915 is granted. As
explained below, the complaint is dismissed for failure to state a claim upon which relief may be
granted.
BACKGROUND
For purposes of this order, I assume that the facts as stated in Nabatov's
complaint are true. See Kiobel v. Royal Dutch Petroleum Co., 621F.3d111, 124 (2d Cir. 2010)
(finding that at the pleading stage of the proceeding, a court must assume the truth of"all wellpleaded, nonconclusory factual allegations" in the complaint). On January 24, 2012, defendant
Sandreas, a fire marshal, arrested Nabatov for setting two garbage bags on fire. (Comp!., ECF

No. 1, at 6.) Nabatov alleges that he was making a "civilian rescue attempt" to rescue Orlando
Cole, who was "missing and abducted," that he attempted the rescue because he "knew a crime
had been committed upon [] Orlando Cole," and he feared being "sued for negligence." Id. at 4,
6. Nabatov was convicted of arson in the second degree, a class B felony, and sentenced to an
aggregate maximum sentence often years' incarceration. See
http://nysdoccslookup.doccs.ny.gov (last visited Jan. 7, 2016). Nabatov seeks a reduction of his
criminal sentence and/or release on his own recognizance, an adjournment in contemplation of
dismissal ("ACD"), and his "charges to be dropped to a non-violent felony." 1 (Comp!., at 7.)
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), and "allow[] 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." Iqbal, 556 U.S. at 678. A
prose complaint is "to be liberally construed," Erickson v. Pardus, 551 U.S. 89, 94 (2007), and

interpreted "to raise the strongest arguments that [it] suggest[s]," Burgos v. Hopkins, 14 F.3d
787, 790 (2d Cir. 1994).
A district court "shall review, before docketing, if feasible or, in any event, as soon as
practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a
governmental entity or officer or employee ofa governmental entity." 28 U.S.C. § 1915A(a). A
court must dismiss a prisoner's complaint sua sponte ifthe complaint is "frivolous, malicious, or

1

This last request was included in Nabatov's December 15, 2015 Jetter to the Court. (ECF No. 11.)

2

fails to state a claim upon which relief may be granted; or seeks monetary relief from a defendant
who is immune from such relief." 28 U.S.C. § l 915A(a); see also 28 U.S.C. §
1915(e )(2)(B)(vesting district court with authority to sua sponte dismiss an action proceeding in

Jonna pauperis if complaint is ("(i) frivolous or malicious; (ii) fails to state a claim upon which
relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from
such relief."); Liner v. Goard, 196 F.3d 132, 134 & n. l (2d Cir. 1999) (under the Prison
Litigation Reform Act, sua sponte dismissal of frivolous prisoner complaints is not only
permitted but mandatory). "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, 437 (2d Cir. 1998) (internal quotation marks omitted).

B.

Wrongful Incarceration Claims
To maintain a§ 1983 action, a plaintiff must allege two 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). 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).
Insofar as N abatov seeks his immediate or speedier release from prison, his
claims are not cognizable in this§ 1983 action. In Freiser v. Rodriguez, 411 U.S. 475, 499-500
(1973), the Supreme Court held that the sole federal remedy for challenging the fact or duration
of his confinement is by way ofa writ of habeas corpus. See also Campos v. Zuntag, Nos. 15-

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cv-2862, 15-cv-3816, 15-cv-4667, 2015 WL 6972062, at *3 (E.D.N.Y. Nov. 9, 2015) (noting
that the Supreme Court's decision in Freiser bars a plaintiffs challenge of the duration of his
confinement).
Further, construing Nabatov's complaint broadly, he may be seeking to argue that
he was falsely at1'ested by the fire marshal, maliciously prosecuted, and that the defense attorney
and the judge assigned to his state criminal action violated his constitutional rights. (See Comp!.
at 4-7.) At the very least, Nabatov's complaint challenges his underlying criminal action and his
judicially imposed sentence. (Id. at 7.) But Nabatov cannot recover under§ 1983 for alleged
wrongful incarceration unless he proves 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 determination, or called into question by a federal court's issuance of a writ of habeas
corpus." Foventud v. City ofNew York, 750 F.3d 121, 129-30 (2d Cir. 2014) (quoting Heck v.
Humphrey, 512 U.S. 477, 487 (1994)); see also Daniels v. Bonilla, No. 14-CV-3017

(KAM)(LB), 2015 WL 4894683, at *5 (E.D.N.Y. Aug. 17, 2015)(explaining that claims of false
arrest pursuant to § 1983 "require the plaintiff to allege the favorable termination of his
conviction or confinement.") (citing Heck, 512 U.S. at 486). Here, Nabatov has not alleged or
shown that his conviction or sentence was reversed or invalidated as provided by Heck. Thus
together, Freiser and Heck prohibit Nabatov, a state prisoner, from pursuing relief under § 1983
where his claim challenges, directly or indirectly, the validity of his incarceration.

B.

Claims Against Individuals

Nabatov does not allege any specific facts to support claims against defendants
Judge Suzanne Mondo 2 or defense attorney Randy Walker. In any event, judges have absolute

2

Although the Complaint refers to Suzanne Monde, I assume that it intends to name Kings County Judge Suzanne
Mondo as a Defendant.

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immunity for acts performed in their judicial capacities. Mireles v. Waco, 502 U.S. 9, 11 (1991);
Dupree v. Bivona, No. 07-4599-cv, 2009 WL 82717, at *1-2 (2d Cir. Jan. 14, 2009) (affirming in

a summary order the dismissal ofa complaint against a judge acting in her judicial capacity).
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).
Moreover, "it is axiomatic that neither public defenders, such as Legal Aid
attorneys, nor comi-appointed counsel, nor private attorneys, act under the color of state law
merely by virtue of their position." Shorter v. Rice, No. 12-cv-0111 (JFB)(ETB), 2012 WL
1340088, at *4 (E.D.N.Y. Apr. 10, 2012); see also Polk Cnty. v. Dodson, 454 U.S. 312, 325
(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."); Rodriguez v. Weprin,
116 F.3d 62, 65-66 (2d Cir. 1997) ("[I]t is well-established that court-appointed attorneys
performing a lawyer's traditional functions as counsel to defendant do not act 'under color of
state law' and therefore are not subject to suit under 42 U.S.C. § 1983." (collecting cases)).
Private conduct-no matter how discriminatory or wrongful-is generally beyond
the reach of§ 1983. Am. Mfrs. Mui. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (quotation
marks omitted); see also Brentwood A cad. v. Tennessee Secondary Sch. Athletic Ass 'n, 531 U.S.
288, 295 (2001) ("[S]tate action may be found if, though only if, there is such a 'close nexus
between the State and the challenged action' that seemingly private behavior 'may be fairly
treated as that of the State itself."' (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351
(1974)). For Nabatov to succeed on his § 1983 complaint, he must first establish that the
conduct of the named defendants is "fairly attributable to the State." Am. Mfrs. Mut. Ins. Co.,

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526 U.S. at 50. Here, defendants Orlando Cole and Mark Hutchins are private individuals whose
conduct cannot be fairly attributed to the State. See id.

D.

Leave to Amend
A pro se plaintiff should ordinarily be given an opportunity to amend his complaint if "a

liberal reading of the complaint gives any indication that a valid claim might be stated." Cuoco v.

Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (internal citations omitted). Where, however, it is
clear from plaintiffs submission that he cannot state a plausible claim for relief, the Court need
not grant him an opportunity to amend his complaint. See, e.g., Ashmore v. Prus, 510 Fed.
Appx. 47, 49 (2d Cir. 2013) (finding that leave to amend is futile where "barriers to relief' for
plaintiffs claims "cannot be surmounted by reframing the complaint"), cert. denied, 133 S.Ct.
2038, 185 L.Ed.2d 887 (2013). Keeping in mind plaintiff's prose status, the Court finds that any
attempt to amend the complaint would be futile, and denies Nabatov leave to amend his
complaint. Cuoco, 222 F .3d at 112 (denying leave to amend a prose complaint where the
problem with plaintiff's complaint was "substantive" and would not be cured by "better
p1eading ").
CONCLUSION
For the reasons discussed above, I dismiss the action for failure to state a claim
upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). I certify pursuant to 28
U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore I deny in

forma pauperis status for purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 44445 (1962).

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s/Ann M. Donnelly