Levy v. Town of North Hempstead et al

Filing 27

ORDER granting 17 Motion for Summary Judgment; granting 19 Motion to Dismiss for Failure to State a Claim; granting 19 Motion to Dismiss for Lack of Jurisdiction: For the reasons set forth herein, the Court grants the Town Defendants' motion for summary judgment and dismisses the claims against them with prejudice. The claims for injunctive and declaratory relief against Sarowitz are dismissed without prejudice. The Clerk of the Court shall enter judgment accordingly and close the case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 9/18/2013. (Mailed by Chambers to pro se plaintiff FCM 9/18/13)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 12-cv-1777 (JFB) (AKT)
_____________________

MICHAEL V. LEVY,
Plaintiff,
VERSUS

TOWN OF NORTH HEMPSTEAD, TOWN ATTORNEY, AND LAURA SAROWITZ,
Defendants.
___________________
MEMORANDUM AND ORDER
September 18, 2013
___________________

JOSEPH F. BIANCO, District Judge:
Pro se plaintiff Michael V. Levy
(“plaintiff” or “Levy”) brings this action
against the Town of North Hempstead (the
“Town”) and the Town Attorney
(collectively, the “Town Defendants”), as
well as against Assistant District Attorney
Laura Sarowitz (“Sarowitz”), alleging
violations of his constitutional rights
pursuant to 42 U.S.C. § 1983. Plaintiff
alleges that Police Officer J. Mauro
(“Mauro”) unlawfully searched and seized
him when he was stopped for a traffic
violation on October 14, 2011. Plaintiff
further alleges that the Town Defendants, as
well as Sarowitz, are illegally prosecuting
him for the traffic violation.
Sarowitz now moves to dismiss the
complaint pursuant to Federal Rule of Civil
Procedure (12)(b)(6). The Town Defendants
move for summary judgment pursuant to
Federal Rule of Civil Procedure 56. For the

reasons set forth below, Sarowitz’s motion
to dismiss is granted, and the Town
Defendants’ motion for summary judgment
is granted.1

1

The Town Defendants moved for summary
judgment prior to any discovery being conducted in
this matter. Although the Second Circuit has warned
that “[o]nly in the rarest of cases may summary
judgment be granted against a plaintiff who has not
been afforded the opportunity to conduct discovery,”
Hellstrom v. U.S. Dep't of Veterans Affairs, 201 F.3d
94, 97 (2d Cir. 2000), “there is nothing in the Federal
Rules of Civil Procedure precluding summary
judgment – in an appropriate case – prior to
discovery,” Emigra Grp., LLC v. Fragomen, Del Rey,
Bernsen & Loewy, LLP, 612 F. Supp. 2d 330, 346
(S.D.N.Y. 2009). This is one of those rare cases. As
discussed infra, the Town Defendants assert that
plaintiff has sued the wrong party and that they have
no connection to the alleged wrongs. However, in
order to substantiate this assertion, the Town
Defendants submitted affidavits and declarations
demonstrating that not only do they not employ
Mauro or Sarowitz, but that the Town does not
employ any police officers or assistant district

I. BACKGROUND

Sarowitz is prosecuting on behalf of the
Town of North Hempstead.” (Id. ¶ 12.)
Plaintiff alleges that he is being illegally
prosecuted so that defendants can receive
“fees, penalties and court surcharges for
unjust enrichment as a domestic not-forprofit.” (Id. ¶ 18.) However, according to
the Town Defendants’ uncontroverted 56.1
statement and accompanying exhibits,
plaintiff is being prosecuted by the Nassau
County District Attorney’s Office for the
traffic violations. (Town Defs.’ 56.1 ¶ 2.)
Sarowitz is not an employee of the Town,
and the Town does not employ any assistant
district attorneys. (Id. ¶ 6; see also Decl. of
Lorienton N.A. Palmer (“Palmer Decl.”) Ex.
G, Aff. of David Fooden (“Fooden Aff.”)
¶¶ 7-8.) Similarly, the Town Defendants
have submitted uncontroverted evidence that
not only is Mauro not an employee of the
Town, but that the Town does not employ
any police officers. (Town Defs.’ 56.1 ¶ 5;
Fooden Aff. ¶¶ 5-6.)

A. Factual Background
The following facts are taken from the
complaint,
including
documents
incorporated by reference. These facts are
not findings of fact by the Court. Instead, the
Court assumes these facts to be true for
purposes of deciding the pending motion to
dismiss, and will construe them in a light
most favorable to plaintiff, the non-moving
party.
On October 14, 2011, plaintiff was
driving on the Long Island Expressway
when Mauro stopped him for driving in the
wrong lane. (Am. Compl. ¶¶ 6-7.) Mauro
then issued plaintiff tickets for additional
traffic violations and confiscated plaintiff’s
license plates. (Id. ¶ 8.) Plaintiff also alleges
that Mauro wrote incorrect information on
the tickets, causing plaintiff to miss his court
appearance and, thus, requiring a bench
warrant to be issued against the plaintiff. (Id.
¶ 9.)

The criminal case against plaintiff in
Nassau County District Court is still
ongoing. By letter dated August 5, 2013,
counsel for Sarowitz informed the Court
that, although plaintiff was given the
opportunity to plead guilty to a violation,
plaintiff wishes to exercise his right to
proceed to trial. The trial is currently
scheduled for October 1, 2013. (Letter from
Monica M.C. Leiter, Aug. 5, 2013, ECF No.
26.)

Plaintiff states that “Town of Hempstead
prosecutor Assistant District Attorney Laura
attorneys. Plaintiff was provided (by the Town
Defendants) with the “Notice to Pro Se Litigant Who
Opposes a Motion for Summary Judgment,” as well
as copies of Federal Rule of Civil Procedure 56 and
Local Civil Rules 56.1 and 56.2. (See ECF No. 17-4.)
Thus, plaintiff has had sufficient notice and
opportunity to respond to the Town Defendants’
motion for summary judgment. In addition, plaintiff
does not even assert that discovery is necessary
regarding the Town Defendants’ assertion that
plaintiff has sued the wrong party. Accordingly,
because plaintiff did not request discovery regarding
whether the Town Defendants are the proper parties
to this action (or even claim that the Town
Defendants are mistaken and that they are the proper
parties), and because the uncontroverted facts clearly
demonstrate that the Town Defendants have no
connection to this case, the Court grants the Town
Defendants’ motion for summary judgment even
though the parties have not completed discovery.

B. Procedural History
Plaintiff commenced this action on April
11, 2012 solely against the Town
Defendants.
The
Town
Defendants
answered the complaint on June 1, 2012. On
July 5, 2012, plaintiff filed an amended
complaint, adding claims against Sarowitz.
The Town Defendants filed an answer on
July 23, 2012. On September 4, 2012, the
Town Defendants filed a motion for
2

if a complaint contains “well-pleaded factual
allegations, a court should assume their
veracity and then determine whether they
plausibly give rise to an entitlement to
relief.” Id. 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. The plausibility
standard is not akin to a ‘probability
requirement,’ but it asks for more than a
sheer possibility that a defendant has acted
unlawfully.” Id. at 678 (quoting and citing
Twombly, 550 U.S. at 556-57) (internal
citation omitted).

summary judgment. On September 6, 2012,
Sarowitz filed a motion to dismiss. Plaintiff
filed an opposition to the motions on
October 9, 2012, and the Town Defendants
and Sarowitz submitted separate replies on
October 17, 2012. The Court has fully
considered all of the submissions of the
parties.
II. STANDARD OF REVIEW
A. Motion to Dismiss
In reviewing a motion to dismiss
pursuant to Rule 12(b)(6), the Court must
accept the factual allegations set forth in the
complaint as true and draw all reasonable
inferences in favor of the plaintiff. See
Cleveland v. Caplaw Enters., 448 F.3d 518,
521 (2d Cir. 2006); Nechis v. Oxford Health
Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005).
“In order to survive a motion to dismiss
under Rule 12(b)(6), a complaint must
allege a plausible set of facts sufficient ‘to
raise a right to relief above the speculative
level.’” Operating Local 649 Annuity Trust
Fund v. Smith Barney Fund Mgmt. LLC, 595
F.3d 86, 91 (2d Cir. 2010) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555
(2007)). This standard does not require
“heightened fact pleading of specifics, but
only enough facts to state a claim to relief
that is plausible on its face.” Twombly, 550
U.S. at 570.

The Court notes that in adjudicating this
motion, it is entitled to consider: “(1) facts
alleged in the complaint and documents
attached to it or incorporated in it by
reference, (2) documents ‘integral’ to the
complaint and relied upon in it, even if not
attached or incorporated by reference, (3)
documents or information contained in
defendant’s motion papers if plaintiff has
knowledge or possession of the material and
relied on it in framing the complaint, (4)
public disclosure documents required by law
to be, and that have been, filed with the
Securities and Exchange Commission, and
(5) facts of which judicial notice may
properly be taken under Rule 201 of the
Federal Rules of Evidence.” In re Merrill
Lynch & Co., 273 F. Supp. 2d 351, 356-57
(S.D.N.Y. 2003) (internal citations omitted),
aff’d in part and rev’d in part on other
grounds sub nom., Lentell v. Merrill Lynch
Co., 396 F.3d 161 (2d Cir. 2005).

The Supreme Court clarified the
appropriate pleading standard in Ashcroft v.
Iqbal, 556 U.S. 662 (2009), setting forth a
two-pronged approach for courts deciding a
motion to dismiss. The Supreme Court
instructed district courts to first “identify[ ]
pleadings that, because they are no more
than conclusions, are not entitled to the
assumption of truth.” Id. at 679 (explaining
that although “legal conclusions can provide
the framework of a complaint, they must be
supported by factual allegations”). Second,

Where, as here, the plaintiff is
proceeding pro se, “a court is obliged to
construe his pleadings liberally, particularly
when they allege civil rights violations.”
McEachin v. McGuinnis, 357 F.3d 197, 200
(2d Cir. 2004). A pro se plaintiff’s
complaint, while liberally interpreted, still
must “‘state a claim to relief that is plausible
3

on its face.’” Mancuso v. Hynes, 379 F.
App’x 60, 61 (2d Cir. 2010) (quoting Iqbal,
556 U.S. at 678); see also Harris v. Mills,
572 F.3d 66, 72 (2d Cir. 2009) (applying
Twombly and Iqbal to pro se complaint).

Once the moving party has met its
burden, the opposing party “‘must do more
than simply show that there is some
metaphysical doubt as to the material
facts. . . . [T]he nonmoving party must come
forward with specific facts showing that
there is a genuine issue for trial.’”
Caldarola v. Calabrese, 298 F.3d 156, 160
(2d Cir. 2002) (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586-87 (1986)). As the Supreme Court
stated in Anderson, “[i]f the evidence is
merely colorable, or is not significantly
probative, summary judgment may be
granted.” 477 U.S. at 249-50 (citations
omitted). Indeed, “the mere existence of
some alleged factual dispute between the
parties” alone will not defeat a properly
supported motion for summary judgment.
Id. at 247-48. Thus, the nonmoving party
may not rest upon mere conclusory
allegations or denials but must set forth
“‘concrete particulars’” showing that a trial
is needed. R.G. Group, Inc. v. Horn &
Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984)
(quoting SEC v. Research Automation
Corp., 585 F.2d 31, 33 (2d Cir. 1978)).
Accordingly, it is insufficient for a party
opposing summary judgment “‘merely to
assert a conclusion without supplying
supporting arguments or facts.’” BellSouth
Telecomms., Inc. v. W.R. Grace & Co., 77
F.3d 603, 615 (2d Cir. 1996) (quoting
Research Automation Corp., 585 F.2d at
33).

B. Summary Judgment
The standard for summary judgment is
well settled. Pursuant to Federal Rule of
Civil Procedure 56(a), a court may only
grant a motion for summary judgment if
“the movant shows that there is no genuine
dispute as to any material fact and the
movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The moving
party bears the burden of showing that he or
she is entitled to summary judgment.
Huminski v. Corsones, 396 F.3d 53, 69 (2d
Cir. 2005). “A party asserting that a fact
cannot be or is genuinely disputed must
support the assertion by: (A) citing to
particular parts of materials in the record,
including
depositions,
documents,
electronically stored information, affidavits
or declarations, stipulations (including those
made for purposes of the motion only),
admissions, interrogatory answers, or other
materials; or (B) showing that the materials
cited do not establish the absence or
presence of a genuine dispute, or that an
adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ.
P. 56(c)(1). The court “‘is not to weigh the
evidence but is instead required to view the
evidence in the light most favorable to the
party opposing summary judgment, to draw
all reasonable inferences in favor of that
party,
and
to
eschew
credibility
assessments.’” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 122 (2d Cir. 2004)
(quoting Weyant v. Okst, 101 F.3d 845, 854
(2d Cir. 1996)); see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)
(summary judgment is unwarranted if “the
evidence is such that a reasonable jury could
return a verdict for the nonmoving party”).

III. DISCUSSION
Plaintiff asserts that defendants violated
his constitutional rights under Section 1983.
To prevail on a claim under Section 1983, a
plaintiff must show: (1) the deprivation of
any rights, privileges, or immunities secured
by the Constitution and laws, (2) by a person
acting under the color of state law. 42
U.S.C. § 1983. Section 1983 does not itself
4

create substantive rights; it offers “a method
for vindicating federal rights elsewhere
conferred.” Patterson v. Cnty. of Oneida,
375 F.3d 206, 225 (2d Cir. 2004).

Mauro or Sarowitz, nor does it have any
connection to the original stop of plaintiff’s
vehicle or his subsequent prosecution. (See
Town Defs.’ 56.1 ¶¶ 5-6; Fooden Aff. ¶¶ 58.) Plaintiff has not filed any evidence to
oppose this contention. A plaintiff cannot
sue an entity that has no plausible
connection to the alleged wrongs. See
Torrelio v. Evergreen Shipping Agency
(Am.) Corp., CA 10-0857, 2011 WL
675043, at *3 (D.S.C. Feb. 16, 2011)
(dismissing action against defendant because
plaintiff sued the wrong corporation);
Conley v. Tulsa Okla. Police Dep’t, 10-CV0813, 2010 WL 5387696, at *1 (N.D. Okla.
Dec. 22, 2010) (stating that plaintiff “may
not sue unspecified Oklahoma police
departments for wrongs allegedly committed
by police officers in Milwaukee, Chicago,
and Memphis”); McDaniel v. City of
Lewistown, CV-09-276, 2009 WL 2998060,
at *4-5 (M.D. Pa. Sept. 16, 2009) (granting
motion for summary judgment when
plaintiff sued for false arrest and judicial
misconduct but “[d]efendant played no role
at any stage – from arrest to sentencing and
incarceration”).

Plaintiff claims that defendants have
violated the Fourth, Fifth, and Fourteenth
Amendments, as well as Article VI of the
Constitution.2 Plaintiff expressly demands
the following relief: “Declaratory Judgment
and Injunctive relief,” “to be release [sic]
from the assignment of imprisonment on
record of the Town of North Hempstead
court calendar,” and “to be release from
unjust enrichment.” (Am. Compl. at 5.3) In
the first paragraph of his complaint, plaintiff
similarly states that he “now seeks to [sic]
Declaratory Judgment and Injunctive Relief
from damages there from and to those
damages which are continuing.” (Id. ¶ 1.)
Construing plaintiff’s complaint liberally
and drawing all reasonable inferences in his
favor, plaintiff appears to assert claims for
false arrest and unlawful seizure against the
Town Defendants and a claim for malicious
prosecution against the Town Defendants
and Sarowitz, and seeks to prevent the
ongoing state prosecution. For the reasons
set forth below, the Court grants the Town
Defendants’ motion for summary judgment
and grants Sarowitz’s motion to dismiss.

Accordingly, because no rational jury
could find that the Town Defendants were
involved in the search and seizure of
plaintiff’s vehicle, or in his subsequent
prosecution, the Town Defendants’ motion
for summary judgment is granted, and all
claims against the Town Defendants are
dismissed.

A. The Town Defendants
The Town Defendants have submitted
declarations and affidavits to support their
contention that the Town neither employs

B. Sarowitz

2

It is not apparent to the Court how plaintiff has any
rights under Article VI of the Constitution, or how
that Article has any relation to the facts alleged in
plaintiff’s complaint. Therefore, to the extent plaintiff
is pursuing a claim under Article VI, it is dismissed.
3
Although plaintiff’s amended complaint has
paragraph numbers throughout the complaint, the
paragraph regarding the demand for relief is not
numbered. Therefore, the Court has cited to the
relevant page of the complaint.

Although it is unclear from plaintiff’s
complaint, it appears that plaintiff alleges
that Sarowitz is illegally prosecuting him so
that the government can generate additional
revenue. Construing plaintiff’s complaint
liberally, the Court believes that plaintiff is
attempting to bring a malicious prosecution

5

claim. For the reasons set forth below, the
claim against Sarowitz is dismissed.4

To prevail on a Section 1983 malicious
prosecution claim, a plaintiff must show “a
seizure or other perversion of proper legal
procedures implicating the claimant’s
personal liberty and privacy interests under
the Fourth Amendment,” and must establish
the elements of a malicious prosecution
claim under state law. Washington v. Cnty.
of Rockland, 373 F.3d 310, 316 (2d Cir.
2004) (citation and internal quotation marks
omitted). The elements of a malicious
prosecution claim under New York law are
as follows: ‘“(1) the initiation or
continuation of a criminal proceeding
against plaintiff; (2) termination of the
proceeding in plaintiff’s favor; (3) lack of
probable cause for commencing the
proceeding; and (4) actual malice as a
motivation for defendant’s actions.’” Jocks
v. Tavernier, 316 F.3d 128, 136 (2d Cir.
2003) (quoting Murphy v. Lynn, 118 F.3d
938, 947 (2d Cir. 1997)).

4

It does not appear that plaintiff is seeking any
monetary damages, but rather is seeking, through a
declaratory judgment and injunction, to prevent
unjust enrichment to defendants as a result of the
ongoing prosecution. However, even assuming
arguendo that his complaint could be liberally
construed as also seeking monetary damages, such a
claim could not be brought against Sarowitz because
she has absolute immunity. “It is by now well
established that ‘a state prosecuting attorney who
acted within the scope of his duties in initiating and
pursuing a criminal prosecution’ ‘is immune from
civil suit for damages under § 1983.’” Shmueli v. City
of N.Y., 424 F.3d 231, 236 (2d Cir. 2005) (quoting
Imbler v. Pachtman, 424 U.S. 409, 410, 431 (1976))
(internal citation omitted). “Prosecutorial immunity
from § 1983 liability is broadly defined, covering
‘virtually all acts, regardless of motivation,
associated with [the prosecutor’s] function as an
advocate.’” Hill v. City of N.Y., 45 F.3d 653, 661 (2d
Cir. 1995) (alteration in original) (quoting Dory v.
Ryan, 25 F.3d 81, 83 (2d Cir. 1994)). For example, in
Hill, the Second Circuit held than an assistant district
attorney’s alleged acts of, inter alia, “conspiring to
present falsified evidence to, and to withhold
exculpatory evidence from, a grand jury” were
“clearly protected by the doctrine of absolute
immunity as all are part of his function as an
advocate.” Id. at 661. Thus, “[i]t is well-settled that
prosecutors performing prosecutorial activities that
are ‘intimately associated with the judicial phase of
the criminal process’ are entitled to absolute
immunity from an action for damages under § 1983.”
Ying Jing Gan v. City of N.Y., 996 F.2d 522, 530 (2d
Cir. 1993) (quoting Imbler, 424 U.S. at 430). On the
other hand, “[w]hen a district attorney functions
outside his or her role as an advocate for the People,
the shield of immunity is absent. Immunity does not
protect those acts a prosecutor performs in
administration or investigation not undertaken in
preparation for judicial proceedings.” Hill, 45 F.3d at
661. The actions of Sarowitz in this case, initiating
and maintaining a prosecution, fall squarely within
the protection of absolute immunity. See Imbler, 424
U.S. at 431 (holding that “in initiating a prosecution
and in presenting the State’s case, the prosecutor is
immune from a civil suit for damages under
§ 1983”). Thus, any claim for damages against her
could not survive a motion to dismiss.

To the extent plaintiff seeks to enjoin an
ongoing criminal prosecution, plaintiff’s
claim is barred by the Younger doctrine. In
Younger v. Harris, 401 U.S. 37, 43-44
(1971), the Supreme Court held that federal
courts should abstain from granting
injunctive relief against a state criminal
prosecution instituted in good faith unless
certain exceptions are met. The Second
Circuit has held that “Younger abstention is
appropriate when: 1) there is an ongoing
state proceeding; 2) an important state
interest is implicated; and 3) the plaintiff has
an avenue open for review of constitutional
claims in the state court.” Hansel v. Town
Court for the Town of Springfield, N.Y., 56
F.3d 391, 393 (2d Cir. 1995). However, a
court may intervene in a state proceeding if
a plaintiff can show extraordinary
circumstances to warrant intervention.
Kugler v. Helfant, 421 U.S. 117, 124 (1975).
Here, all the elements for Younger
abstention are met. First, there is an ongoing
6

immediate harm” to warrant intervention in
the criminal proceeding. Peralta v. Leavitt,
56 F. App’x 534, 535 (2d Cir. 2003). The
Second Circuit has held that the “burden of
defending a criminal prosecution is . .
insufficient without more to constitute
irreparable harm,” Davis v. Lansing, 851
F.2d 72, 77 (2d Cir. 1988), and plaintiff has
not alleged any other immediate harm that
would result if this Court failed to enjoin the
prosecution. Second, plaintiff’s conclusory
allegation that the criminal proceeding was
initiated against him to generate revenue is
“hardly the type of specific factual
allegation[] of bad faith required to warrant
Younger intervention to stop the plaintiff’s
state criminal trial.” Saunders, 62 F. Supp.
2d at 636; see also Collins v. Kendall Cnty.,
Ill., 807 F.2d 95, 98 (7th Cir. 1986) (“A
plaintiff asserting bad faith prosecution as an
exception to Younger abstention must allege
specific facts to support an inference of bad
faith.”); Bobrowsky v. Yonkers Courthouse,
777 F. Supp. 2d 692, 710 n.27 (S.D.N.Y.
2011) (stating that “[p]laintiff has failed to
allege facts that would support applying
either of [the] Younger exceptions” when
plaintiff merely asserted “conclusory claims
of bad faith and retaliation”); Bhatia v.
Conway, No. 06 CV 1334, 2006 WL
3741189, at *3 (D. Conn. Dec. 19, 2006)
(“A plaintiff seeking to invoke either the bad
faith or extraordinary circumstances
exceptions may not rely on conclusory
allegations in a complaint or affidavit but
must instead affirmatively demonstrate the
justification for application of an exception.”
(citations and internal quotation marks
omitted)).5

criminal proceeding. Second, “it is
axiomatic that a state’s interest in the
administration of criminal justice within its
borders is an important one.” Hansel, 56
F.3d at 393. Finally, plaintiff’s claim can be
raised in the pending state criminal
proceeding because there is no allegation
that plaintiff has been denied the ability to
raise this issue in his criminal case. See id. at
394 (“So long as a plaintiff is not barred on
procedural or technical grounds from raising
alleged constitutional infirmities, it cannot
be said that state court review of
constitutional claims is inadequate for
Younger purposes.”).
Other courts have dismissed cases due to
Younger abstention in similar circumstances.
See Lunch v. Nolan, 598 F. Supp. 2d 900,
903 (C.D. Ill. 2009) (dismissing claims for
injunctive relief and stating that “[plaintiff]
is scheduled for criminal trial in April 2009,
and is essentially asking this Court to enjoin
aspects of those proceedings[;] [t]his is
precisely what Younger forbids”); Sullivan
v. Stein, No. 03-CV-1203, 2005 WL 43439,
at *1-2 (D. Conn. Jan. 4, 2005) (denying
preliminary injunction seeking federal court
to enjoin criminal trial in state court);
Saunders v. Flanagan, 62 F. Supp. 2d 629,
637 (D. Conn. 1999) (“[B]ecause the
defendants have demonstrated that the
Younger abstention doctrine applies to this
case and the plaintiff has failed to establish
one of the exceptions to the Younger
abstention doctrine, the plaintiff’s claims for
injunctive and declaratory relief are
dismissed. The plaintiff’s pending state
prosecution provides him with sufficient
opportunity for vindication of the federal
constitutional rights he claims were violated
by the defendants.”).

5

Although the Second Circuit has held that an
evidentiary hearing is required if there is a disputed
issue of fact regarding a Younger exception, see Kern
v. Clark, 331 F.3d 9, 12 (2d Cir. 2003), “when the
complaint fails to allege any evidence of bad faith or
if it does so only in the most conclusory manner, a
court can decide whether to invoke the bad faith

In addition, plaintiff has not established
that either exception to the Younger doctrine
applies in this case. First, plaintiff has not
demonstrated a “clear showing of great and
7

The Court also notes that dismissal, as
opposed to a stay of the proceedings, is the
appropriate course of action in this case
because plaintiff seeks declaratory and
injunctive relief, and there is no separate
claim for damages.6 See, e.g., Christ v. City
of Missoula Police Dep’t, No. CV 12-106,
2012 WL 6552809, at *3 (D. Mont. Sept.
25, 2012) (Report and Recommendation)
(“Younger abstention applies differently to
claims for monetary damages than it does to
claims for injunctive and declaratory relief.
Where injunctive and declaratory relief is
sought a dismissal of those claims is
appropriate. But where monetary damages
are sought the federal court should stay its
hand under Younger rather than dismiss
those claims until after the state court
proceedings are no longer pending. Thus,
under Younger, claims for injunctive and
declaratory relief should be dismissed
without prejudice, and the remainder of the
action seeking monetary damages should be
stayed pending resolution of the state court
proceedings.” (internal citations omitted)).

injunctive and declaratory relief against
Sarowitz are dismissed without prejudice.
The Clerk of the Court shall enter judgment
accordingly and close the case.
SO ORDERED.

______________________
JOSEPH F. BIANCO
United States District Judge

Dated: September 18, 2013
Central Islip, NY
***
Plaintiff is proceeding pro se. The Town
Defendants are represented by Lorienton
N.A. Palmer, North Hempstead Town
Attorney, 220 Plandome Road, PO Box
3000, Manhasset, NY 11030. Laura
Sarowitz is represented by Monica Marie
Cullen Leiter, Nassau County District
Attorney’s Office, 262 Old Country Road,
Mineola, NY 11501.

IV. CONCLUSION
For the foregoing reasons, the Court
grants the Town Defendants’ motion for
summary judgment and dismisses the claims
against them with prejudice. The claims for
exception to Younger abstention on the basis of the
complaint alone,” Wilson v. Emond, No. 08 CV 1399,
2009 WL 1491511, at *2 (D. Conn. May 28, 2009).
Several courts have dismissed claims due to Younger
abstention without holding an evidentiary hearing.
See, e.g., id.; Didden v. Vill. Of Port Chester, 304 F.
Supp. 2d 548, 567-68 (S.D.N.Y. 2004); Saunders, 62
F. Supp. 2d at 634. The Court finds that plaintiff’s
conclusory allegations of bad faith (which do not
contain any specific allegations or supporting details)
are insufficient to demonstrate a prima facie showing
of bad faith, and, thus, an evidentiary hearing on the
issue of bad faith is not required.
6
In any event, as noted supra, any attempted claim
for damages against Sarowitz would be precluded by
the doctrine of absolute immunity.

8