Brown v. Moralles et al
Filing
8
MEMORANDUM & ORDER: SO ORDERED that plaintiffs applications to proceed in forma pauperis in the third and fourth actions are granted; the Third Complaint and the Fourth Complaint are consolidated for all purposes, including trial, to proceed under th e Lead Case, docket number 13-4047; plaintiffs Section 1983 claims seeking release from custody are sua sponte dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l) for failure to state a claim for relief, without prejudice t o filing a petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241, et seq.; plaintiffs Section 1983 claims seeking damages are stayed pending termination of the underlying criminal proceedings against him; and plaintiffs Section 1 983 claims against Moralles, Robinson, A TM Real Estate are sua sponte dismissed in their entirety with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l) for failure to state a claim for relief unless, within thirty (30) days from the date this case is re-opened plaintiff files an amended complaint in accordance with this Order. The Court hereby notifies plaintiff that if he files another in forma pauperis complaint against these same defts alleging the same claims r elated to his November 5, 2012 arrest and subsequent prosecution, the Court will require that plaintiff first seek leave of Court before submitting such filing. In addition, the Court may direct the Clerk of the Court to return to plaintiff, without filing, any such action that is received without a clear application seeking leave to file, and the Court may sua sponte dismiss the case with prejudice. Plaintiffs applications for the appointment of pro bono counsel are denied without prejudice to renewal when this case is trial ready, if so warranted at that time. The Clerk of Court shall: (1) re-open the Lead Case for the limited purpose of consolidating Third Complaint and the Fourth Complaint with the Lead Case and amending the caption in the Lead Case in accordance with this Order; (2) administratively close the actions under docket numbers 14-civ-1382 and 14-civ-2392; (3) administratively close the Lead Case, with leave to reopen within two (2) weeks of the termination of the underl ying criminal proceedings against plaintiff; and (4) pursuant to Rule 77(d)(l) of the Federal Rules of Civil Procedure, serve notice of entry of this order upon all parties in accordance with Rule S(b) of the Federal Rules of Civil Procedure. No summ onses shall issue at this time. 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 the purpose of any appeal. CM to pro se plaintiff. Ordered by Judge Sandra J. Feuerstein on 11/18/2014. (Florio, Lisa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------)(
GEORGE BROWN,
Plaintiff,
MEMORANDUM AND ORDER
14-CV-1382 (SJF)(GRB)
-againstRALPHAEL MORALLES, the Superintendent,
NASSAU COUNTY DISTRICT ATTORNEY,
FREEPORT POLICE DEPARTMENT, I sT BALDWIN
PRECINCT, SERGIO/INCORPORATED VILLAGE
OF FREEPORT DEP'T: THE VILLAGE INSPECTORS,
PAMELA ROBINSON, KATHLEEN M. RICE,
ASSISTANT DISTRICT ATTORNEY, ATM
REAL ESTATE, FREEPORT FIRE DEPARTMENT,
FILED
IN CLERK'S OFFICE
U S DISTRICT COURTED NY
*
,;::,v 1 a2014
LCNG ISLAND OFFICl
Defendants.
---------------------------------------------------------------)(
GEORGE BROWN,
Plaintiff,
-against-
*
14-CV-2932 (SJF)(GRB)
RALPHAEL MORALLES, the Superintendent,
NASSAU COUNTY DISTRICT ATTORNEY,
FREEPORT POLICE DEPARTMENT, I sT BALDWIN
PRECINCT, SERGIO/INCORPORATED VILLAGE
OF FREEPORT DEP'T: THE VILLAGE INSPECTORS,
PAMELA ROBINSON, KATHLEEN M. RICE,
ASSISTANT DISTRICT ATTORNEY, ATM REAL
ESTATE, FREEPORT FIRE DEPARTMENT,
DETECTIVE KAMMSKI, I sT BALDWIN PRECINCT,
FIRE MARSHALL JOE, FREEPORT FIRE
DEPARTMENT, OFFICER DI)(ON, FREEPORT
POLICE DEPARTMENT,
Defendants.
---------------------------------------------------------------)(
FEUERSTEIN, District Judge:
On July 15,2013, incarcerated prose p1aintiffGeorge Brown ("plaintiff' or "Brown")
filed a complaint against the Freeport Police Department ("Freeport Police") and the Nassau
l·
County District Attorney ("D.A.") which was assigned docket number 13-civ-4047. [Case No.
13-civ-4047 Docket Entry No. I (the "First Complaint")]. A second complaint was filed on
November 20, 2013 against the Freeport Police and the D.A. as well as Ralphael Moralles/the
Superintendent ("Moralles"); I st Baldwin Precinct ("First Precinct"); Sergio/Incorporated
Freeport Village Department ("Sergio"); the Freeport Fire Department, Pamela Robinson
("Robinson") and ATM Real Estate and was assigned docket number 13-civ-6514. [Case No.
13-civ-6514 Docket Entry No. I (the "Second Complaint")]. On February 28,2014, plaintiff
filed a third complaint [Case No. 14-cv-1382 Docket Entry No. I (the "Third Complaint")]
accompanied by an application to proceed in forma pauperis [Case No. 14-civ-1382 Docket
Entry No.2]. On May I, 2014, plaintiff filed his fourth in forma pauperis complaint [Case No.
14-civ-2932 Docket Entry No. I (the "Fourth Complaint")]. On June 4, 2014, plaintiff filed an
application for the appointment of counsel to represent him in each of his cases. [Case No. 14civ-1382 Docket Entry No.8; Case No. 14-civ-2932 Docket Entry No.6 (collectively, the
"Motions to Appoint Counsel")].
For the reasons that follow, Third Complaint and the Fourth Complaint are consolidated
with the First Complaint and the Second Complaint for all purposes and shall proceed under the
docket number of his First Complaint, 13-civ-4047 (the "Lead Case"). All papers filed shall
henceforth bear only the Lead Case docket number and Third Complaint (assigned docket
number 14-civ-1382) and the Fourth Complaint (assigned docket number 14-civ-2932), shall be
administratively closed. In addition, plaintiff's Section 1983 claims seeking release from
custody in the Third Complaint are sua sponte dismissed without prejudice pursuant to 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b)(l) for failure to state a claim for relief; plaintiff's Section
2
'
1983 claims seeking damages in the Third Complaint and the Fourth Complaint are stayed
pending the termination of the underlying criminal proceedings against him; and plaintiff's
Section 1983 claims against Moralles, Robinson and ATM Real Estate in the Third Complaint
and the Fourth Complaint are sua sponte dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii)
and 1915A(b)(l) for failure to state a claim for relief. Finally, the Motions to Appoint Counsel
are denied without prejudice.
I.
Procedural Background
As noted above, plaintiff's First Complaint was filed on July 15, 2013 against the
Freeport Police and the D.A. alleging civil rights violations by law enforcement officials relating
to plaintiff's November 5, 2012 arrest and subsequent prosecution. See generally First Campi.
By order dated October 9, 2014 in the first action [Case No. 13-civ-4047 Docket Entry No.6 (the
"October Order")]: (I) plaintiff's application to proceed in forma pauperis was granted; (2)
plaintiff's Section 1983 claims seeking release from custody were sua sponte dismissed pursuant
to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l) for failure to state a claim for relief, without
prejudice to filing a petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241, et
seq.; (3) plaintiff's Section 1983 claims seeking damages were stayed pending the termination of
the underlying criminal proceedings against him; and (4) the first action was administratively
closed with leave to reopen within two (2) weeks of the termination of the underlying criminal
proceedings against plaintiff. See October Order at 5-6.
On November 20, 2013, plaintiff filed the Second Complaint against the Freeport Police
and the D.A. as well as Moralles, the First Precinct, Sergio, the Freeport Fire Department,
Robinson and A TM Real Estate also alleging civil rights violations by law enforcement officials
3
relating to plaintiff's November 5, 2012 arrest and subsequent prosecution. See generally
Second Compl. By Memorandum and Order dated January 23, 2014 in the second action [Case
No. 13-civ-6514 Docket Entry No. 7 (the "January Order")]: (I) plaintiff's application to
proceed in forma pauperis was granted; (2) the First Complaint and the Second Complaint were
consolidated for all purposes; (3) plaintiff's Section 1983 claims seeking release from custody in
the second action were sua sponte dismissed without prejudice pursuant to 28 U.S.C. §§
1915(e)(2)(B)(ii) and 1915A(b)(l) for failure to state a claim for relief; (4) plaintiff's Section
1983 claims seeking damages in the Second Complaint were stayed pending termination of the
underlying criminal proceedings against him; and (5) plaintiff's Section 1983 claims against
Moralles, Robinson and ATM Real Estate were sua sponte dismissed pursuant to 28 U.S.C. §§
1915(e)(2)(B)(ii) and 1915A(b)(l) for failure to state a claim for relief. See January Order at 514.
For the reasons that follow, Third Complaint and the Fourth Complaint are consolidated
with plaintiff's First Complaint and Second Complaint for all purposes and shall proceed under
the docket number of the Lead Case, 13-civ-4047.
II.
Factual Background
Plaintiff's four (4) complaints allege that on November 5, 2012 plaintiff walked into the
incinerator room on the first floor of the building in which he resides after smelling smoke
coming from that room. First Complaint, Second Complaint, Third Complaint, and Fourth
Complaint (collectively, the "Complaints" or "Compls." at '11 IV)). Subsequently, Moralles, the
superintendent of the building, entered the incinerator room and asked plaintiff about the fire,
allegedly assuming that plaintiff had started the fire. Handwritten Statements ["Stat."] Annexed
4
..
to First and Second Complaint at I; Third Compl. ~IV; Fourth Compl. ~IV. Plaintiff told
Moralles that he did not know anything about a fire, left the incinerator room and went to his
apartment. Id Shortly after plaintiff entered his apartment, "Nassau police with the Freeport
Police" arrived, forced their way in and searched the apartment without a warrant. Compls. ~ IV;
Stat. to First and Second Complaint, at 1-2. Plaintiff alleges he was arrested without
explanation, transported by "Nassau County police" to the First Precinct and subsequently
imprisoned. Compls. ~IV; Stat. to First and Second Complaint, at 2.
In the first action, plaintiff alleges that he has been imprisoned for a period of eight (8)
months "without NO [sic] indictment." Stat. to First Complaint, at 2. In the Second Complaint,
plaintiff alleges that he has been imprisoned for a period of twelve (12) months and was finally
indicted on September 17, 2013. Stat. to Second Complaint, at I. In the Third Complaint,
plaintiff claims to have been incarcerated "since 15 Months and Next month in March 2014 It'll
[sic] be my 2 years, that I'll also be incarcerated at Nassau County Jail. Third Compl. at 5.
Plaintiff explains in the Third Complaint that "Right Now I'm going to Court for my Pre Trial
hearing on Thursday, March 6, 2014. It'll be about my false statement, that I've did [sic] signed
[sic] And Also saying A video statement on Monday night, November 5, 2012 At the I" Baldwin
Precinct." !d. In the Fourth Complaint, plaintiff alleges that "[r]ight now, I've been incarcerated
since !7Y, months or almost 18 months." Fourth Compl. at 6.
In the Second Complaint, plaintiff additionally alleges that Sergio, a Village inspector,
and a fire marshal from the First Precinct "were at [his] Apartment at the Time [of his November
5, 2012 arrest]." Stat. to Second Complaint, at I. According to plaintiff, he was: (i) "forced to
Confessed [sic] by The Authorities And Coecresion [sic] by Them tool [sic] as well[;]" (2)
5
"frustrated .. .Intimidated[] [and] Manipulated by them for having [him] to signed [sic] a
statement that were [sic] False And Going on video to say a False statement At The First
Precinct[;]" and (3) "'Scared!' [him] To say That [he] did The Arson 2nd Degree." Id Plaintiff
alleges that he "finally remembered" that "[t]he Authorities" threatened "to have their unknown
People to retaliate [against him]" if he filed a civil rights complaint against them. Jd In
addition, the Second Complaint alleges, inter alia: (I) that "these cops from the (F]irst Precint
[sic] stared at (plaintiff], While [he] was using their Mens Bathroom[,]" (Stat. to Second
Complaint, at 2); (2) that "[t]hese Nassau County cops Have done Sexual Harassment to [him]
and Racist, Because [he is] An African Black American[,]" (!d.); (3) that he has been
discriminated against by the "Authorities" and the D.A. because of his race and diagnosis of
mental illness (Second Compl.
~
V); and (4) that he has been "Persecuted and Retaliated" against
by the police because Moralles told them that he is "a Gay Homosexual." !d.
In the Second Complaint, plaintiff also alleges that as he was entering his apartment
building on October 2, 2012, Robinson, another tenant in the building, tried to spray him with
pepper spray and her son "snucked [sic] Behind [him], To put a big bruise on the Right side of
[his] face." Stat. to Second Complaint, at 3. Plaintiff alleges that the Freeport Police "took
(f]orever(,]" (id.) to arrive after he called them, in "retaliation against [him] from ... Moralles
And The ATM Real Estate that owns the Building[,]" (id.), and that before they arrived,
Robinson "ha(d] told all the tenant neighbors outside ... To tell the cops[] That They didn't saw
(sic] What had happened." !d. Plaintiff alleges that the police did not let him press charges
against Robinson's son "[b]ecause [he] Didn't have any witnesses on [his] side And It [sic]
wasn't no camera in the building." Stat. to Second Complaint, at 4. In addition, plaintiff alleges
6
that he had previously told Robinson he was "[l]ockup [sic] back in 2002 for setting A cardboard
dumpster on fire" (id.) and that Robinson "backstabbed [him] in the face for no Reason" (id.) by
telling the police that he had been "locked up for Arson several years ago in Rikers Island." !d.
According to plaintiff, when he was arrested on November 5, 2012 and charged with arson in the
second degree, the police told him "That This is another reason why ... [he] gotten 'blame!'
[sic] ... Because [he had] a Previous Record For The Same thing." !d.
In the third action, plaintiff also claims that the "cops had flipped a quarter on the floor
Inside their office at the
I'' Baldwin Precinct and Have said! [sic] If the quarter does Lands [sic]
on Heads that means! [sic] I've won! And If it falls on Tales [sic], that means! [sic] I'll have
lose! [sic]. Stat. to Third Complaint, at 5. According to plaintiff, [t]hey were playing dice with
money, Like their [sic] were also gambling money on the Floor." !d. Plaintiff explains, "I am
refiling Again to sue for definition [sic] of character, because of the Superintendent Raphael
Moralles for pressing the charges against me and 'Blaspheming! [sic] me" That He've [sic]
thought! [sic] I did the Arson." !d. Plaintiff claims to have been slandered by Moralles for
"accusing me for something, [sic] that I've [sic] didn't do at All." !d. Plaintiff alleges that he is
suing "Kathleen M. Rice for not having any kind of patience! [sic] and not understanding the
reason why, [sic] I've signed a False Statement and Saying a video statement at the I" Baldwin
Precinct." !d. Plaintiff is "suing Kathleen M. Rice for $20 Billion Dollars. Also for False
Incarceration at Nassau County Correctional Center, and for Having the District Attorney to keep
me in prison! [sic] still for 15 months." !d. According to plaintiff, Moralles "always stay [sic]
drunk all the time ... AII of these defendants will definately! [sic] leave me alone! After all of this
Triple civil rights complaint Lawsuit. Once! [sic] the Nassau District Attorney find me innocent!
7
First with my case. [sic] Which right now, I have Arson 2"d Degree, because the Authorities
made me confessed [sic] by signing a False Statement and saying a video statement." Jd. at 7.
Plaintiff alleges that the "cops didn't also even have [n]o [p]atience! [sic] For me to 'explained!'
[sic] All of my side of the story of what happened! [sic] That night on Monday, November 5,
2012." Jd. at 8. Plaintiff also claims that Moralles would "go to help an [sic] Hispanic tenant or
White tenant" skipping over plaintiff because plaintiff is Black and on social security disability
and received social services food stamps. Jd. In the fourth action, plaintiff also claims
defendants "were hurting [his] reputation [sic] defaming, By having [him] also [sic] to make
false and hannful statements, so as to hurt [his] reputation [sic] of slander and libel." Stat. to
Fourth Complaint, at 6.
In the section of the form complaint asking plaintiffto describe his injuries and state the
medical treatment he received, plaintiff wrote: (I) the word "None" in the First complaint
(First Compl.
~IV .A);
(2) nothing in the Second Complaint, i.e., he left that section of the
complaint blank (Second Compl. ~ IV.A); and (3) "No Injuries And No Medical Treatment" in
Third Complaint and the Fourth Complaint. Third and Fourth Compls. ~ IV.A. In the First
Complaint, plaintiff seeks to recover damages in the amount of"$! ,000,00" for the time he has
spent in jail and to be released from custody. First Compl. ~;Stat. to the First Complaint, at 2.
In the Second Complaint, plaintiff seeks to recover damages in the amount of five million dollars
($5,000,000.00) "for all the Persecution And Pain[,]" and to be discharged or released from
prison. Second Compl. ~ V; Stat. to the Second Compl., at 2. In the Third Complaint, plaintiff
seeks to recover damages in the amount of"$20 Billion Dollars for Definition [sic] Of Character,
Because Ralphael Moralles the Superintendent had pressed the charges against me and
8
"Blaspheming! Me, that He've thought! I did the Arson." Third Compl. '11 V. Plaintiff also seeks
to recover a damages award in the amount of $20 billion against "Kathleen M. Rice for not
having any kind of patience! And not understanding the reason why I've signed a false statement
and saying a video statement at the
I'' Baldwin Precinct."
!d. Finally, the Fourth Complaint
seeks to recover a damages award of$100 million. Fourth Compl. '11 V.
III.
Discussion
A.
Consolidation
Rule 42(a) of the Federal Rules of Civil Procedure provides that "[i]factions before the
court involve a common question of law or fact, the court may ... consolidate the actions; or[]
issue any other orders to avoid unnecessary cost or delay." Fed. R. Civ. P. 42(a); Devlin v.
Transp. Commc 'ns Int '!. Union, 175 F.3d 121, 130 (2d Cir. 1999). District courts have broad
discretion to determine whether consolidation is appropriate, Johnson v. Celotex Corp., 899 F.2d
1281, 1284-85 (2d Cir. 1990), and may consolidate actions under Rule 42(a) sua sponte. See
Devlin, 175 F.3d at 130. Consolidation "should be prudently employed as a valuable and
important tool of judicial administration .. .invoked to expedite trial and eliminate unnecessary
repetition and confusion." Devlin, 175 F.3d at 130 (internal quotations and citations omitted). In
determining whether consolidation is appropriate, the court must consider:
Whether the specific risks of prejudice and possible confusion are
overborne by the risk of inconsistent adjudications of common
factual and legal issues, the burden on the parties, witnesses, and
available judicial resources posed by multiple lawsuits, the length
of time required to conclude multiple suits as against a single one,
and the relative expense to all concerned of the single-trial,
multiple-trial alternatives.
Johnson, 899 F.2d at 1285 (quotations, brackets and citations omitted).
9
Moreover, cases may be consolidated where, as here, there are different parties in the
complaints. See Werner v. Satterlee, Stephens, Burke & Burke, 797 F. Supp. 1196, 1211
(S.D.N.Y. 1992) ("The fact that there are different parties in this action does not mean this case
should not be consolidated."); see also Pirelli Armstrong Tire Corp. Retiree Me d. Benefits Trust
v. LaBranche & Co., Inc., 229 F.R.D. 395, 402 (S.D.N.Y. 2004) (holding that the fact that
certain defendants are named in only one or some of the complaints to be consolidated does not
preclude consolidation).
All four (4) actions were recently filed, have not yet proceeded to discovery and involve
similar allegations relating to civil rights violations by law enforcement officials arising from
plaintiffs November 5, 2012 arrest and subsequent prosecution. There will be minimal, if any,
prejudice or confusion to the parties in consolidation these actions. Therefore, in the interests of
judicial economy and efficiency, and to minimize the expense and burden on all parties in
prosecuting and defending multiple lawsuits, the Third Complaint and Fourth Complaint are
consolidated with plaintiffs earlier complaints for all purposes and will proceed under docket
number 13-cv-4047. All papers filed in these actions shall henceforth bear only docket number
13-cv-4047 and the caption of this consolidated action shall be amended in accordance with this
Order and the complaints assigned docket numbers 14-civ-1382 and 14-civ-2932 shall be
administratively closed.
B.
In Forma Pauperis Applications
Upon review of plaintiffs declarations in support of his applications to proceed in forma
pauperis on the Third Complaint and the Fourth Complaint, the Court determines that plaintiffs
financial status qualifies him to commence these actions without prepayment of the filing fees.
10
See 28 U.S.C. § 1915(a)(l). Therefore, plaintiffs requests to proceed in forma pauperis on his
Third Complaint and Fourth Complaint are granted.
C.
Standard of Review
Under both the Prison Litigation Reform Act, 28 U.S.C. § 1915A, and the in forma
pauperis statute, 29 U.S.C. § 1915(e)(2), a district court must dismiss a complaint if it is
frivolous or malicious, 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. §§ 1915A(b) and
1915(e)(2)(B). See Abbas v. Dixon, 480 F.3d 636,639 (2d Cir. 2007) (finding both Section 1915
and Section 1915A to be applicable to a prisoner proceeding in forma pauperis).
It is axiomatic that district courts are required to read prose complaints liberally,
Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (citations
omitted), and to construe them "to raise the strongest arguments that they suggest." Gerstenbluth
v. Credit Suisse Securities (USA) LLC, 728 F.3d 139, 142-43 (2d Cir. 2013) (quotations and
citations omitted). Moreover, at the pleadings stage of the proceeding, the Court must assume
the truth of"all well-pleaded, nonconclusory factual allegations in the complaint." Harrington v.
Cnty. of Suffolk, 607 F .3d 31, 33 (2d Cir. 201 0); see also Ashcroft v. Iqbal, 556 U.S. 662, 678-79,
129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).
Nevertheless, a complaint must plead sufficient facts "to state a claim to relief that is
plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974,
167 L. Ed. 2d 929 (2007). The pleading of specific facts is not required; rather a complaint need
only give the defendant "fair notice of what the ... claim is and the grounds upon which it rests."
Erickson, 551 U.S. at 93 (quotations and citation omitted); see also Anderson News, LLC v.
11
American Media, Inc., 680 F.3d 162, 182 (2d Cir. 2012), cert. denied by Curtis Circulation Co.
v. Anderson News, LLC, ---U.S.----, 133 S. Ct. 846, 184 L. Ed. 2d 655 (2013) (accord).
However, "[a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the
elements of a cause of action will not do."' Ashcroft, 556 U.S. at 678 (quoting Twombly, 550
U.S. at 555). '"Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further
factual enhancement."' !d. (quoting Twombly, 550 U.S. at 557); see also Pension Benefit Guar.
Corp. ex rel. St. Vincent Catholic Med Ctrs. Retirement Plan v. Morgan Stanley lnv. Mgmt. Inc.,
712 F.3d 705,717 (2d Cir. 2013) (accord). The plausibility standard requires "more than a sheer
possibility that defendant has acted unlawfully." Ashcroft, 556 U.S. at 678; see also In re
Amaranth Natural Gas Commodities Litig., 730 F.3d 170, 180 (2d Cir. 2013).
D.
Section 1983
Section 1983 of Tile 42 of the United States Code provides, in relevant part:
[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State ... subjects, or causes to
be subjected, any citizen of the United States ... to the deprivation
of any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured ....
42 U.S.C. § 1983. "Section 1983 provides a cause of action against any person who deprives an
individual of federally guaranteed rights 'under color' of state law." Filarsky v. Delia,--- U.S.
----, 132 S. Ct. 1657, 1661, 182 L. Ed. 2d 662 (2012). Thus, to state a Section 1983 claim, a
plaintiff must allege: (I) that the challenged conduct was "committed by a person acting under
color of state law," and (2) that such conduct "deprived [the plaintiff] of rights, privileges, or
immunities secured by the Constitution or laws of the United States." Cornejo v. Bell, 592 F.3d
12
121, 127 (2d Cir. 2010) (quoting Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994)); see also
Rehbergv. Paulk,--- U.S.----, 132 S. Ct. 1497, 1501-02, 182 L. Ed. 2d 593 (2012).
I.
Release from Custody
As indicated in both the October Order and January Order, to the extent plaintiff again
seeks to be released from custody, such relief is not available in a Section 1983 action. See, e.g.,
Keyes v. Juul, 270 F. Supp. 2d 327,330 (E.D.N.Y. 2003) ("[I]nsofar as plaintiff seeks release
from custody, he can do so only on a properly submitted petition seeking a writ of habeas corpus,
not in a Section 1983 action."); see generally Preiser v. Rodriguez, 411 U.S. 475,490,93 S. Ct.
1827,36 L. Ed. 2d 439 (1973) (holding that habeas relief is the exclusive remedy for a state
prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier
release from custody). "Requests for release from custody must be brought under the narrow
remedy available in federal habeas corpus, not through a damage action." Baker v. New York
State Executives and Officers, No. 12-civ-1090, 2012 WL 2358162, at *2 (E.D.N.Y. June 20,
2012); see also Muhammad v. Close, 540 U.S. 749, 750, 124 S. Ct. 1303, 158 L. Ed. 2d 32
(2004) ("Challenges to the validity of any confinement or to particulars affecting its duration are
the province of habeas corpus"). Accordingly, plaintiffs Section 1983 claims seeking release
from custody are dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l) for
failure to state a claim for relief.2
2
The dismissal of plaintiff's Section 1983 claims seeking release from custody is without prejudice
to plaintiff filing a petition seeking a writ of habeas corpus pursuant to 28 U.S.C. §§ 2241, et seq.
13
2.
Damages Claims
Plaintiffs Section 1983 claims seeking damages in the Third Complaint and the Fourth
Complaint are in the nature of false arrest, false imprisonment, defamation and malicious
prosecution. Where, as here, a plaintiff files a civil rights action seeking damages, inter alia, for
false arrest, false imprisonment, defamation or malicious prosecution before the termination of
the criminal proceedings against him, "it is within the power of the district court, and in accord
with common practice, to stay the civil action until the criminal case or the likelihood of a
criminal case is ended." Wallace v. Kato, 549 U.S. 384,393-94, 127 S. Ct. 1091, 166 L. Ed. 2d
973 (2007); see also Heck v. Humphrey, 512 U.S. 477,487 n. 8, 114 S. Ct. 2364, 129 L. Ed. 2d
383 (1994) ("[I]f a state criminal defendant brings a federal civil rights action, abstention may be
an appropriate response to the parallel state-court proceedings."). "If the plaintiff is ultimately
convicted, and if the stayed civil suit would impugn that conviction, Heck will require dismissal
[of the Section 1983 claims]; otherwise, the civil action will proceed, absent some other bar to
suit." Wallace, 549 U.S. at 394. Accordingly, plaintiff's Section 1983 claims in the Third
Complaint and the Fourth Complaint seeking damages are stayed pending the termination of the
underlying criminal proceedings against him. The consolidated case shall be administratively
closed, with leave to reopen within two (2) weeks of the termination ofthe underlying
criminal proceedings against plaintiff.
PLAINTIFF IS ADVISED THAT A FAILURE TO SEEK TO REOPEN THIS
ACTION WITHIN TWO (2) WEEKS OF THE TERMINATION OF THE UNDERLYING
CRIMINAL PROCEEDINGS AGAINST HIM MAY RESULT IN THE DISMISSAL OF
HIS SECTION 1983 CLAIMS WITH PREJUDICE.
14
3.
Claims against Moralles, Robinson and ATM Real Estate
"To state a claim under 42 U.S.C. § 1983, the plaintiff must show that a defendant, acting
under color of state law, deprived him of a federal constitutional or statutory right." Sykes v.
Bank ofAmerica, 723 F.3d 399, 405-06 (2d Cir. 2013); see also Fabrikant v. French, 691 F.3d
193,206 (2d Cir. 2012) ("[A] litigant claiming that his constitutional rights have been violated
must first establish that the challenged conduct constitutes state action ... A plaintiff pressing a
claim of violation of his constitutional rights under § 1983 is thus required to show state
action ... State action requires both an alleged constitutional deprivation ... and that the party
charged with the deprivation must be a person who may fairly be said to be a state actor."
(alterations, quotations and citations omitted)). Section 1983 liability may only be imposed upon
wrongdoers "who carry a badge of authority of a State and represent it in some capacity, whether
they act in accordance with their authority or misuse it." Nat'! Collegiate Athletic Ass'n v.
Tarkanian, 488 U.S. 179, 191, 109 S. Ct. 454, 102 L. Ed. 2d 469 (I 988) (quotations and citation
omitted); see also Hafer v. Melo, 502 U.S. 21, 28, 112 S. Ct. 358, I 16 L. Ed. 2d 301 (1991)
("Congress enacted§ 1983 to enforce provisions of the Fourteenth Amendment against those
who carry a badge of authority of a State and represent it in some capacity, whether they act in
accordance with their authority or misuse it." (quotations and citations omitted)). Moralles, as
the superintendent of the building in which plaintiff lived; Robinson, as a tenant in that same
building; and A TM Real Estate, as the owner of that building, were not acting "under color of
state law" for purposes of Section 1983 with respect to the conduct attributed to them in the
complaint.
15
·.
Nevertheless, "[a] private actor may be liable under§ 1983 .. .if there is a sufficiently
close nexus between the State and the challenged action that seemingly private behavior may be
fairly treated as that of the State itself." Sykes, 723 F .3d at 406 (quotations, internal quotations
and citations omitted); see also Fabrikant, 691 F.3d at 206-07 ("Conduct that is formally
'private' may become so entwined with governmental policies or so impregnated with a
governmental character that it can be regarded as governmental action ... [T]here must be such a
close nexus between the state and the challenged action that the state is responsible for the
specific conduct of which the plaintiff complains." (quotations, alterations, emphasis and
citations omitted)). "Anyone whose conduct is fairly attributable to the state can be sued as a
state actor under § 1983." Filarsky, 132 S. Ct. at 1661; see also Fabrikant, 691 F .3d at 207
("The fundamental question .. .is whether the private entity's challenged actions are 'fairly
attributable' to the state." (quoting Rendell-Eaker v. Kahn, 457 U.S. 830, 838, 102 S. Ct. 2764,
73 L. Ed. 2d 418 (1982))). Three main tests have emerged to determine when the actions of a
private entity can be attributable to the state:
For the purposes of section 1983, the actions of a nominally private
entity are attributable to the state ... (1) [when] the entity acts
pursuant to the coercive power of the state or is controlled by the
state ('the compulsion test'); (2) when the state provides
significant encouragement to the entity, the entity is a willful
participant in joint activity with the state, or the entity's functions
are entwined with state policies ('the joint action test' or 'close
nexus test'); or (3) when the entity has been delegated a public
function by the state ('the public function test).
Fabrikant, 691 F.3d at 207 (quoting Sybalski v. Jndep. Grp. Home Living Program, Inc., 546
F.3d 255, 257 (2d Cir. 2008) (alteration in original)).
Even reading the complaints liberally and drawing all reasonable inferences therefrom in
16
favor of the plaintiff, there is no basis on which to find that Moralles, Robinson and A TM Real
Estate were acting under color of state law for purposes of Section 1983 with respect to the
conduct attributed to them in the complaints. Accordingly, plaintiff's Section 1983 claims
against Moralles, Robinson and ATM Real Estate are dismissed with prejudice pursuant to 28
U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l) for failure to state a claim for relief, unless, within
thirty (30) days from the date this case is re-opened as set forth above, plaintiff files an
amended complaint pleading sufficient facts from which it may plausibly be inferred that
Moralles, Robinson and A TM Real Estate were acting under color of state law within the
meaning of Section 1983.
E.
Filing Injunction
As noted above, during the approximate ten (10) month period from July 15,2013 to
May 1, 2014, plaintiff has filed four (4) in forma pauperis complaints in this Court against
largely the same defendants alleging a variety of wrongdoings related to his November 5, 2012
arrest and subsequent state criminal prosecution. These complaints have been consolidated and
administratively closed with leave to re-open within two (2) weeks of the termination of the
underlying criminal proceedings against plaintiff. Notwithstanding the Court's October Order
and January Order, plaintiff filed new actions against largely the same defendants alleging
largely the same claims related to his November 5, 2012 arrest and subsequent prosecution. As
of the date of this Order, the underlying criminal proceedings against plaintiff have not
terminated. See New York State Unified Court System, https://iapps.courts.state.ny.us/webcrim
(Last visited on November 18, 2014).
17
Under the All-Writs Act, a federal district court "may issue all writs necessary or
appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of
Jaw." 28 U.S.C. § 1651 (a). "The All-Writs Act grants district courts the power, under certain
circumstances, to enjoin parties from filing further lawsuits." MLE Realty Assocs. v. Handler,
192 F.3d 259,261 (2d Cir. 1999); see also Matter of Hartford Textile Corp., 613 F.2d 388,390
(2d Cir. 1979) (holding that the All Writs Act "grant[s] the district court power sua sponte to
enjoin further filings in support of frivolous and vexatious claims.") "The district courts have the
power and the obligation to protect the public and the efficient administration of justice from
individuals who have a history of litigation entailing vexation, harassment and needless expense
to other parties and an unnecessary burden on the courts and their supporting personnel." Lau v.
Meddaugh, 229 F.3d 121, 123 (2d Cir. 2000) (quotations and citation omitted); see also Hong
Mai Sa v. Doe, 406 F.3d 155, 158 (2d Cir. 2005) ("If a litigant has a history of filing vexatious,
harassing or duplicative lawsuits, courts may impose sanctions, including restrictions on future
access to the judicial system." (quotations and citation omitted)). "The filing of repetitive and
frivolous suits constitutes the type of abuse [ofthe judicial process] for which an injunction
forbidding further litigation may be an appropriate sanction." Shafii v. British Airways, PLC, 83
F.3d 566, 571 (2d Cir. 1996); see also Lau, 229 F.3d at 123 ("The issuance of a filing injunction
is appropriate when a plaintiff abuses the process of the Courts to harass and annoy others with
meritless, frivolous, vexatious or repetitive proceedings." (quotations, alterations and citations
omitted)). The following factors should be considered in determining whether to restrict a
litigant's future access to the courts:
18
(1) the litigant's hist~ry oflitigation and in particular whether it entailed
vexatious, harassing or duplicative lawsuits; (2) the litigant's motive in pursuing
the litigation, e.g., does the litigant have an objective good faith expectation of
prevailing?; (3) whether the litigant is represented by counsel; (4) whether the
litigation has caused needless expense to other parties or has posed an
unnecessary burden on the courts and their personnel; and ( 5) whether other
sanctions would be adequate to protect the courts and other parties.
Sajir v. United States Lines Inc., 792 F.2d 19,24 (2d Cir. 1986); see also Iwachiw v. New York
State Dep 't ofMotor Vehicles, 396 F.3d 525, 528 (2d Cir. 2005) (accord). "Ultimately, the
question the court must answer is whether a litigant who has a history of vexatious litigation is
likely to continue to abuse the judicial process and harass other parties." Sajir, 792 F.2d at 24.
The court must first provide a litigant with notice and an opportunity to be heard before
imposing a filing injunction, see Lau, 229 F.3d at 123; Moates v. Barkley, 147 F.3d 207,208 (2d
Cir. 1998) (per curiam), and the filing injunction must be narrowly tailored so as to preserve the
litigant's right of access to the court, see Board of Managers of 2900 Ocean Avenue
Condominium v. Bronkovic, 83 F.3d 44,45 (2d Cir. 1996) (holding that filing injunctions "must
be appropriately narrow."); SBC 2010-1, LLC v. Morton,--- F. App'x ----, 2013 WL 6642410, at
* 2 (2d Cir. Dec. 18, 2013) (summary order) (affirming the district court's issuance of a filing
injunction on the basis, inter alia, that it was "narrowly crafted"); Malcolm v. Board of
Education of Honeove Falls-Lima Central School District, 506 F. App'x 65, 70 (2d Cir. Dec. 26,
2012) (summary order) (accord).
The Third Complaint and Fourth Complaint are plaintiff's third and fourth attempts since
July 2013 to litigate essentially the same claims alleging wrongdoings related to his November 5,
2012 arrest and subsequent state criminal prosecution. Given the Court's "obligation to protect
the public and the efficient administration of justice from individuals who have a history of
19
litigation entailing vexation, harassment and needless expense to other parties and an
unnecessary burden on the courts and their supporting personnel" Lau, 229 F.3d at 123, plaintiff
is warned that similar, future actions will not be tolerated. If plaintiff persists in filing actions
asserting claims previously raised in any of the consolidated Complaints, the Court will issue an
order to show cause why he should not be required to seek leave of this Court before filing any
future actions in this Court.
Finally, plaintiff is cautioned that Federal Rule of Civil Procedure II applies to prose
litigants, see Maduakolam v. Columbia Univ., 866 F.2d 53, 56 (2d Cir. 1989) ("Rule II applies
both to represented and prose litigants."); Ginther v. Provident Life and Cas. Ins. Co., 350 F.
App'x 494, 496 (2d Cir. 2009) (affirming a district court's imposition of Rule II sanctions
against a prose litigant), and that should he file another repetitive action, it is within the Court's
authority to impose sanctions against him. See Fed. R. Civ. P. II.
F.
Motions to Appoint Counsel
28 U.S.C. § 1915(e)(l) provides that a "court may request an attorney to represent any
person unable to afford counsel." 28 U.S.C. § 1915(e)(l). Courts possess substantial discretion
to determine whether appointment of counsel for civil litigants is appropriate. Ferrelli v. River
Manor Health Care Center, 323 F.3d 196, 203 (2d Cir. 2003). When deciding whether to
appoint counsel to an indigent civil litigant under § 1915(e)( I), the threshold inquiry is whether
there is "some likelihood of merit" to the litigant's position. Johnston v. Maha, 606 F.3d 39,41
(2d Cir. 2010); see also Carmona v. United States Bureau of Prisons, 243 F.3d 629, 632 (2d Cir.
2001) ("[C]ounsel should not be appointed in a case where the merits of the indigent's claim are
thin and his chance of prevailing are therefore poor."); see also Hodge v. Police Officers, 802
20
F.2d 58, 61 (2d Cir. 1986) (stating that "the district judge should first determine whether that
indigent's position seems likely to be of substance"). If the threshold showing has been met, the
court should next consider the following prudential factors:
[T]he indigent's ability to investigate the crucial facts, whether
conflicting evidence implicating the need for cross-examination
will be the major proof presented to the fact finder, the indigent's
ability to present the case, the complexity of the legal issues and
any special reason in that case why appointment of counsel would
be more likely to lead to a just determination.
Hodge, 802 F.2d at 61-62; see also Johnston, 606 F.3d at 42 (applying the Hodge factors);
Carmona, 243 F.3d at 632 (holding that "[o]nly after an initial finding that a claim is likely one
of substance, will we consider secondary factors such as the factual and legal complexity of the
case, the ability of the litigant to navigate the legal minefield unassisted, and any other reason
why in the particular case appointment of counsel would more probably lead to a just resolution
of the dispute"). However, those factors are not exclusive and "[e]ach case must be decided on
its own facts." Hodge, 802 F.2d at 61.
Upon review of plaintiffs application and the Complaints, the Court finds that the
appointment of pro bono counsel is not warranted at this stage of the litigation. Although there
may be some likelihood of merit to plaintiffs claims, the legal issues presented in this case are
not particularly complex; plaintiff appears capable of preparing and presenting his case and
investigating the crucial facts; and there is no special reason to appoint counsel at this time.
Accordingly, plaintiffs Motions to Appoint Counsel are denied without prejudice to renewal
when this case is trial ready. In the interim, plaintiff must either retain counsel or proceed pro
se.
21
IV.
Conclusion
For the reasons set forth above, plaintiffs applications to proceed in forma pauperis in
the third and fourth actions are granted; the Third Complaint and the Fourth Complaint are
consolidated for all purposes, including trial, to proceed under the Lead Case, docket number 134047; plaintiffs Section 1983 claims seeking release from custody are sua sponte dismissed
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l) for failure to state a claim for relief,
without prejudice to filing a petition seeking a writ of habeas corpus pursuant to 28 U.S.C. §
2241, et seq.; plaintiffs Section 1983 claims seeking damages are stayed pending termination of
the underlying criminal proceedings against him; and plaintiffs Section 1983 claims against
Moralles, Robinson, ATM Real Estate are sua sponte dismissed in their entirety with prejudice
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l) for failure to state a claim for relief
unless, within thirty (30) days from the date this case is re-opened plaintiff files an amended
complaint in accordance with this Order. The Court hereby notifies plaintiff that if he files
another in forma pauperis complaint against these same defendants alleging the same claims
related to his November 5, 2012 arrest and subsequent prosecution, the Court will require that
plaintiff first seek leave of Court before submitting such filing. In addition, the Court may direct
the Clerk of the Court to return to plaintiff, without filing, any such action that is received
without a clear application seeking leave to file, and the Court may sua sponte dismiss the case
with prejudice. Plaintiffs applications for the appointment of pro bono counsel are denied
without prejudice to renewal when this case is trial ready, if so warranted at that time.
The Clerk of Court shall: (I) re-open the Lead Case for the limited purpose of
consolidating Third Complaint and the Fourth Complaint with the Lead Case and amending the
22
'
caption in the Lead Case in accordance with this Order; (2) administratively close the actions
under docket numbers 14-civ-1382 and 14-civ-2392; (3) administratively close the Lead Case,
with leave to reopen within two (2) weeks of the termination of the underlying criminal
proceedings against plaintiff; and (4) pursuant to Rule 77(d)(l) of the Federal Rules of Civil
Procedure, serve notice of entry of this order upon all parties in accordance with Rule S(b) of the
Federal Rules of Civil Procedure. No summonses shall issue at this time.
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 the purpose
of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 8 L. Ed. 2d
21 (1962).
s/ Sandra J. Feuerstein
SO ORDERED.
1
Sandra J. F eu&'stein
United States District Judge
Dated: November 18,2014
Central Islip, New York
23
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