Webb v. Delligatti et al

Filing 9

MEMORANDUM & ORDER granting 2 Motion for Leave to Proceed in forma pauperis; For the reasons set forth above, Plaintiff's application to proceed in forma pauperis is GRANTED, however the Complaint is sua sponte DISMISSED WITH PREJUDICE for f ailure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1). 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. The Clerk of the Court is directed to mail a copy of this Order to Plaintiff and to mark this case CLOSED. So Ordered by Judge Joanna Seybert on 10/12/2017. C/M (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
SHAWN J. WEBB,
Plaintiff,

MEMORANDUM AND ORDER
17-CV-02670(JS)(SIL)

-againstHON. JUDGE ANGELO A. DELLIGATTI,
HON. MADELINE SINGAS, ESQ., LISA
BERK, ESQ., and CORNELL BOUSE, ESQ.,
Defendants.
----------------------------------X
APPEARANCES
For Plaintiff:
Shawn J. Webb, pro se
4 Woodland Townhouse Road
Apt. F-45
Loch Sheldrake, NY 12759
For Defendants:

No appearances.

SEYBERT, District Judge:
On April 28, 2017, incarcerated pro se plaintiff Shawn J.
Webb (“Plaintiff”) filed a Complaint in this Court pursuant to 42
U.S.C. § 1983 (“Section 1983”) against the Honorable Angelo A.
Delligatti (“Judge Delligatti”), Nassau County District Attorney
Madeline Singas (“DA Singas”), Lisa Berk, Esq. (“A.D.A. Berk”) and
Cornell

Bouse,

Esq.

(“Bouse”

and

together,

“Defendants”),

accompanied by an application to proceed in forma pauperis.1
Upon

review

of

the

declaration

in

support

of

the

application to proceed in forma pauperis, the Court finds that

1

On May 15, 2017, mail sent on May 3, 2017 from the Court to
Plaintiff at his address of record was returned. (See Docket
Entry 7.) On July 24, 2017, Plaintiff filed a change of address
with the Court (see Docket Entry 8) and the Docket has been
updated to reflect his current address of record.

Plaintiff is qualified to commence this action without prepayment
of the filing fee.

See 28 U.S.C. § 1915(a)(1).

Therefore,

Plaintiff’s request to proceed in forma pauperis is GRANTED.
However, for the reasons that follow, the Complaint is sua sponte
DISMISSED WITH PREJUDICE for failure to state a claim pursuant to
28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1).
BACKGROUND2
Plaintiff’s

handwritten

Complaint,

submitted

on

the

Court’s Section 1983 complaint form, alleges that he has not been
released

from

the

custody

Facility

even

though

his

of

the

sentence

Nassau
has

County

been

Correctional

completed.3

More

specifically, Plaintiff alleges that he plead guilty on February 3,
2017 with the understanding from his attorney, Bouse, that his
sentences from both Sullivan County and Nassau County would run
concurrently and thus his release date would be March 14, 2017.
(Compl. at 4.) Plaintiff claims that his sentencing date was also
scheduled for March 14, 2017--the same day as his release date.
(Compl. at 4.)

Due to inclement weather, the sentencing date was

adjourned to March 21, 2017 and, following the sentence Plaintiff
understood that he would be released later that day.

(Compl. at

2

The following facts are taken from Plaintiff’s Complaint and
are presumed to be true for the purposes of this Memorandum and
Order.
3

As noted above, Plaintiff has been discharged since the filing
of this Complaint. Thus, to the extent that Plaintiff seeks to
be released from incarceration, such claim is now moot.
2

5.) Plaintiff learned later that day from a corrections officer in
Plaintiff’s housing unit that Plaintiff still had a Sullivan County
hold and that his release date was November 8, 2017.

(Compl. at

5.) Plaintiff claims that he was notified on March 22, 2017 that
his sentences would not be running concurrently.
According

to

the

Complaint,

Plaintiff

(Compl. at 5.)

appeared

before

Judge

Delligatti on April 5, 2017 who advised Plaintiff that he would be
released that day.

(Compl. at 6.)

Plaintiff was returned to the

Nassau County Correctional Facility and waited to be released.
(Compl. at 6.) The next day, Plaintiff asked a corrections officer
to check on the status of his release and the officer apprised
Plaintiff that his release date was still November 8, 2017.
(Compl. at 6.)
As a result of the foregoing, Plaintiff claims to have
lost his job, his place of residence, and his girlfriend and has
become very depressed.

(Compl. at 8-9.)

For relief, Plaintiff

would “like to be immediately released” and “to be compensated for
every single day that I’m passed my actual release date (March 14,
2017 [and] [ ] to be compensated for everything I’m going through
. . . .”

(Compl. ¶ V.)
DISCUSSION

I.

In Forma Pauperis Application
Upon review of Plaintiff’s declaration in support of the

application to proceed in forma pauperis, the Court finds that
3

Plaintiff is qualified to commence this action without prepayment
of the filing fees.

See 28 U.S.C. § 1915(a)(1).

Therefore,

Plaintiff’s request to proceed in forma pauperis is GRANTED.
II.

Application of 28 U.S.C. § 1915
Section 1915 of Title 28 requires a district court to

dismiss an in forma pauperis complaint if the action is frivolous
or malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief against a defendant who is immune
from

such

1915A(b).

relief.

See

28

U.S.C.

§§

1915(e)(2)(B)(i)-(iii),

The Court is required to dismiss the action as soon as

it makes such a determination.

See id. § 1915A(b).

Courts are obliged to construe the pleadings of a pro se
plaintiff liberally. See Sealed Plaintiff v. Sealed Defendant, 537
F.3d 185, 191 (2d Cir. 2008); McEachin v. McGuinnis, 357 F.3d 197,
200 (2d Cir. 2004).

However, a complaint must plead sufficient

facts to “state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955,
1974, 167 L. Ed. 2d 929 (2007).

“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.”

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.

Ct. 1937, 173 L. Ed. 2d 868 (2009) (citations omitted).

The

plausibility standard requires “more than a sheer possibility that
a defendant has acted unlawfully.”
4

Id. at 678; accord Wilson v.

Merrill Lynch & Co., Inc., 671 F.3d 120, 128 (2d Cir. 2011).

While

“‘detailed factual allegations’” are not required, “[a] pleading
that offers ‘labels and conclusions’ or ‘a formulaic recitation of
the elements of a cause of action will not do.’”
at

Iqbal, 556 U.S.

678 (quoting Twombly, 550 U.S. at 555).

III.

Section 1983
Section 1983 provides that
[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; accord Rehberg v. Paulk, 566 U.S. 356, 361, 132
S. Ct. 1497, 1501–02, 182 L. Ed. 2d 593 (2012).
under

Section

1983,

a

plaintiff

must

To state a claim

“‘allege

that

(1)

the

challenged conduct was attributable at least in part to a person
who was acting under color of state law and (2) the conduct
deprived the plaintiff of a right guaranteed under the Constitution
of the United States.’”

Rae v. Cty. of Suffolk, 693 F. Supp. 2d

217, 223 (E.D.N.Y. 2010) (quoting Snider v. Dylag, 188 F.3d 51, 53
(2d Cir. 1999)).
A.

Claim Against Bouse
Section 1983 “constrains only state conduct, not the

‘acts of private persons or entities.’”

Hooda v. Brookhaven Nat’l

Lab., 659 F. Supp. 2d 382, 393 (E.D.N.Y. 2009) (quoting Rendell5

Baker v. Kohn, 457 U.S. 830, 837, 102 S. Ct. 2764, 2769, 73 L. Ed.
2d 418 (1982)).

Accordingly, “a litigant claiming that his

constitutional rights have been violated must first establish that
the challenged conduct constitutes state action.” Flagg v. Yonkers
Sav. & Loan Ass’n, 396 F.3d 178, 186 (2d Cir. 2005) (internal
quotation marks and citation omitted); Fabrikant v. French, 691
F.3d 193, 206 (2d Cir. 2012) (“A plaintiff pressing a claim of
violation of his constitutional rights under Section 1983 is
. . . required to show state action.” (internal quotation marks and
citation omitted)). Indeed, “the under-color-of- state-law element
of § 1983 excludes from its reach merely private conduct, no matter
how discriminatory or wrongful.”

Am. Mfrs. Mut. Ins. Co. v.

Sullivan, 526 U.S. 40, 50, 119 S. Ct. 977, 985, 143 L. Ed. 2d 130
(1999) (internal quotation marks and citation omitted).
Private

actors,

such

as

Bouse

(Plaintiff’s

defense

attorney in the underlying criminal case), may be considered to be
acting under the color of state law for purposes of § 1983 if the
private actor was a “‘willful participant in joint activity with
the State or its agents.’” Ciambriello v. Cty. of Nassau, 292 F.3d
307, 324 (2d Cir. 2002) (quoting Adickes v. S.H. Kress & Co., 398
U.S. 144, 152, 90 S. Ct. 1598, 1606, 26 L. Ed. 2d 142 (1970)).
Section 1983 liability may also extend to a private party who
conspires

with

a

state

constitutional rights.

actor

to

violate

a

plaintiff’s

Ciambriello, 292 F.3d at 323-24.
6

In order

to state a Section 1983 conspiracy claim, a plaintiff must allege:
“(1) an agreement between a state actor and a private party; (2) to
act in concert to inflict an unconstitutional injury; and (3) an
overt act done in furtherance of that goal causing damages.”

Id.

at 324-25 (citing Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir.
1999)).
Here, Plaintiff does not allege whether Bouse was his
privately retained defense counsel or whether Bouse was appointed
by the Court to defend Plaintiff in the underlying criminal case.
Whether or not an attorney is assigned by the Court is immaterial
because attorneys generally do not act under color of state law.
Indeed, it is well-established that attorneys, whether with the
Legal Aid Society, court-appointed, or privately retained, are
generally not state actors for purposes of Section 1983.

See,

e.g., Polk Cty. v. Dodson, 454 U.S. 312, 325, 102 S. Ct. 445, 453,
70 L. Ed. 2d 509 (1981); see also 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 [a] defendant [in a criminal proceeding] do not act
‘under color of state law’ and therefore are not subject to suit
under 42 U.S.C. § 1983.”) (citations omitted).
Additionally, Plaintiff has not alleged that Bouse acted
jointly with a state actor or conspired with a state actor to
deprive Plaintiff of some constitutional right.
7

Thus, in the

absence of any state action, Plaintiff’s Section 1983 claim against
Bouse is not plausible as a matter of law.
at 325.

Ciambriello, 292 F.3d

Accordingly, Plaintiff’s Section 1983 claim against Bouse

is DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. §§ 1915(e)(2)(B)
(ii); 1915A(b)(1).
B.

Claim Against Judge Delligatti
“It is well settled that judges generally have absolute

immunity from suits for money damages for their judicial actions.”
Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir. 2009) (citations
omitted).

The Supreme Court instructs that this immunity is “from

suit, not just from ultimate assessment of damages.”

Mireles v.

Waco, 502 U.S. 9, 11, 112 S. Ct. 286, 288, 116 L. Ed. 2d 9 (1991)
(citation omitted).
Here, Plaintiff seeks to challenge conduct by Judge
Delligatti in the course of his presiding over Plaintiff’s plea and
sentencing proceedings.

Presiding over a criminal case and making

rulings during such proceedings are clearly judicial actions which
fall squarely within the scope of judicial immunity.

Accordingly,

even liberally construing the Complaint, Plaintiff has not alleged
a plausible claim against Judge Delligatti and it is thus DISMISSED
WITH

PREJUDICE

pursuant

to

28

U.S.C.

§§

1915

(e)(2)(B)(ii);

1915A(b)(1).
C.

Claims Against D.A. Singas and A.D.A. Berk
Plaintiff’s Section 1983 claims against D.A. Singas and
8

A.D.A. Berk also fail as a matter of law because prosecutors are
entitled to absolute immunity from liability in suits seeking
monetary damages for acts related to prosecutorial duties.

Burns

v. Reed, 500 U.S. 478, 486, 111 S. Ct. 1934, 114 L. Ed. 2d 547
(1991); Shmueli v. City of N.Y., 424 F.3d 231, 236 (2d Cir. 2005)
(“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 a civil suit for damages
under § 1983.” (internal quotation marks and citation omitted)).
Moreover, apart from the caption and identification of the parties
section of the form Complaint, Plaintiff does not reference D.A.
Singas or A.D.A. Berk and he includes no factual allegations
against either of them.

Thus, as is readily apparent, Plaintiff

has not alleged a plausible Section 1983 claim against D.A. Singas
or A.D.A. Berk and such claims are thus DISMISSED WITH PREJUDICE
pursuant to 28 U.S.C. §§ 1915 (e)(2)(B)(ii); 1915A(b)(1).
D.

Leave to Amend
Given

the

Second

Circuit’s

guidance

that

a

pro

se

complaint should not be dismissed without leave to amend unless
amendment would be futile, Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d
Cir. 2000), the Court has carefully considered whether leave to
amend is warranted here.

Because the defect in Plaintiff’s claims

is substantive and would not be cured if afforded an opportunity to
amend, leave to amend the Complaint is DENIED.
9

However, insofar as Plaintiff seeks to challenge the
execution of his state court criminal sentence, the dismissal of
the instant Complaint is WITHOUT PREJUDICE to his filing a Petition
for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.
Plaintiff is cautioned that a Petition for a Writ of Habeas Corpus
has certain prerequisites to filing in this Court, such as the
exhaustion of Constitutional claims in state court.
CONCLUSION
For the reasons set forth above, Plaintiff’s application
to proceed in forma pauperis is GRANTED, however the Complaint is
sua sponte DISMISSED WITH PREJUDICE for failure to state a claim
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1).
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).
The Clerk of the Court is directed to mail a copy of this
Order to Plaintiff and to mark this case CLOSED.
SO ORDERED.

/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated: October
12 , 2017
Central Islip, New York
10