Jones v. Papa et al
ORDER: Plaintiff's 2 application to proceed in forma pauperis is granted, but the complaint is dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i), (iii), 1915A(b). The Clerk of the Court is ordered to enter judgment and to close th is case. 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, 44445 (1962). The Clerk of Court shall mail a copy of this Order to the Plaintiff at his address of record. SEE ATTACHED ORDER for details. Ordered by Judge Joan M. Azrack on 9/8/2021. c/m to plaintiff (Coleman, Laurie)
Case 2:21-cv-01099-JMA-ST Document 12 Filed 09/08/21 Page 1 of 11 PageID #: 55
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
WESLEY CURTIS JONES,
For Online Publication Only
21-CV-1099 (JMA) (ST)
-againstDANIELLE PAPA, MELISSA TURK,
RICHARD T. DUNNE,
AZRACK, United States District Judge:
Incarcerated pro se plaintiff Wesley Curtis Jones (“Plaintiff”) has filed an - - - - - -----in forma pauperis
complaint against Danielle Papa, who is alleged to be his defense attorney in an underlying ongoing state court criminal prosecution (“Papa”), Suffolk County Assistant District Attorney
Melissa Turk (“ADA Turk”), and Hon. Richard T. Dunne, the acting County Court judge who is
assigned to Plaintiff’s state court criminal proceedings (“Judge Dunne” and collectively,
“Defendants”) pursuant to 42 U.S.C. § 1983 (“Section 1983”). For the reasons that follow, the
application to proceed - - - - - ------ is granted, but the complaint is sua sponte pursuant to 28
in forma pauperis
U.S.C. §§ 1915(e)(2)(B), 1915A(b).
Plaintiff’s complaint is submitted on the Court’s Section 1983 complaint form and seeks
to challenge an on-going criminal prosecution in the First District Court, Suffolk County, under
case CR-005731-20SU.1 Plaintiff seeks to impose liability upon ADA Turk who is prosecuting
Notably, a review of the public court records maintained by the New York State Office of Court Administration
reflects that Plaintiff is a defendant in nineteen (18) open criminal cases pending in the First District Court, Suffolk
County. See case numbers: CR-013380-20SU; CR-000060-20SU; CR-000061-20SU; CR-000062-20SU; CR001453-20SU; CR-001458-20SU; CR-057918-19SU; CR-005729-20SU; CR-005730-20SU; CR-005731-20SU; CR007993-20SU; CR-007994-20SU; CR-007995-20SU; CR-013249-20SU; CR-013250-20SU; CR-016615-20SU; CR016616-20SU; and CR-052952-19SU. Plaintiff is also a defendant in a case pending in the Suffolk County Court
under case number 00155-2021.
Case 2:21-cv-01099-JMA-ST Document 12 Filed 09/08/21 Page 2 of 11 PageID #: 56
him, his court appointed criminal defense attorney, Papa, and the presiding judge, the Hon. Richard
T. Dunne. Plaintiff complains, inter alia, that exculpatory evidence was not produced, that Papa
improperly waived his right to be indicted within the time frame set forth in N.Y. Criminal
Procedure Law § 180.80 2 , and that Judge Dunne has not scheduled a conference or decided
Plaintiff’s motion to dismiss the indictment. (Compl. at 3-4.) Plaintiff claims that the defendants
have committed “treason” and seeks to charge the Defendants with violation of 18 U.S.C. §§ 241242, 2382. (Id. at 6.) For relief, Plaintiff seeks to recover a compensatory damages award in the
total sum of $21 million dollars and an additional unspecified sum for punitive and exemplary
damages. (Id. at 7.)
A. In Forma Pauperis Application
Upon review of Plaintiff’s declaration in support of his application to proceed in forma
pauperis, the Court finds that Plaintiff is qualified to commence this case without prepayment of
the filing fee. 28 U.S.C. § 1915(a)(1). Therefore, Plaintiff’s application to proceed in forma
pauperis is granted.
B. Standard of Review
The Prison Litigation Reform Act requires a district court to screen a civil complaint
brought by a prisoner against a governmental entity or its agents and dismiss the complaint, or any
portion of the complaint, if the complaint is “frivolous, malicious, or fails to state a claim upon
N.Y. Criminal Procedure Law § 180.80 provides in pertinent part that, absent certain circumstances, a defendant
held in custody for “more than one hundred twenty hours or, in the event that a Saturday, Sunday or legal holiday
occurs during such custody, one hundred forty-four hours, without either a disposition of the felony complaint or
commencement of a hearing thereon” must be released by the local criminal court on his own recognizance. N.Y.
Crim. Proc. Law § 180.80.
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which relief may be granted.” 28 U.S.C. § 1915A(b)(1). Similarly, pursuant to the in forma
pauperis statute, a court must dismiss an action if it determines that it “(i) is frivolous or malicious,
(ii) fails to state a claim upon which relief may be granted, or (iii) seeks monetary relief from a
defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). The Court must dismiss
the action as soon as it makes such a determination. 28 U.S.C. § 1915A(b).
Pro se submissions are afforded wide interpretational latitude and should be held “to less
stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519,
520 (1972) (per curiam); -- --- -------------- 105 F.3d 857, 860 (2d Cir. 1997). In
see also Boddie v. Schnieder,
addition, the Court is required to read Plaintiff’s pro se complaint liberally and interpret it as raising
the strongest arguments it suggests. United States v. Akinrosotu, 637 F.3d 165, 167 (2d Cir. 2011)
(per curiam) (citation omitted); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009).
The Supreme Court has held that pro se complaints need not even plead specific facts;
rather the complainant “need only give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation
marks and citations omitted); cf. Fed. R. Civ. P. 8(e) (“Pleadings must be construed so as to do
justice.”). However, a pro se plaintiff must still plead “enough facts to state a claim to relief that
is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim
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 (2009) (citations omitted). The plausibility standard requires “more than a
sheer possibility that a defendant has acted unlawfully.” Id. at 678. While “‘detailed factual
allegations’” are not required, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic
Case 2:21-cv-01099-JMA-ST Document 12 Filed 09/08/21 Page 4 of 11 PageID #: 58
recitation of the elements of a cause of action will not do.’” Id. at 678 (quoting Twombly, 550
U.S. at 555).
C. 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. In order to state a Section 1983 claim, a plaintiff must allege two essential
elements. First, the conduct challenged must have been “committed by a person acting under
color of state law.” Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) (quoting Pitchell v. Callan,
13 F.3d 545, 547 (2d Cir. 1994)); - - --- ------------------------ 526 U.S. 40, 50
see also Am. Mfrs. Mut. Ins. Co. v. Sullivan,
(1999) (“[T]he under-color-of-state-law element of § 1983 excludes from its reach merely private
conduct, no matter how discriminatory or wrongful.”) (internal quotation marks and citation
omitted). 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.; see also Snider v.
Dylag, 188 F.3d 51, 53 (2d Cir. 1999).
1. Judicial Immunity
Plaintiff’s Section 1983 claims against Justice Dunne must be dismissed. Judges are
absolutely immune from suit for damages for any actions taken within the scope of their judicial
responsibilities. Mireles v. Waco, 502 U.S. 9, 11 (1991). Generally, “acts arising out of, or
related to, individual cases before the judge are considered judicial in nature.” Bliven v. Hunt,
579 F.3d 204, 210 (2d Cir. 2009). “Even allegations of bad faith or malice cannot overcome
judicial immunity.” Id. (citations omitted). However, absolute judicial immunity does not
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apply when the judge acts “outside” his judicial capacity, or when the judge takes action that,
although judicial in nature, is taken “in absence of jurisdiction.” Mireles, 502 U.S. at 9-10; see
also Bliven, 579 F.3d at 209-10 (describing actions that are judicial in nature). But “the scope of
[a] judge’s jurisdiction must be construed broadly where the issue is the immunity of the judge.”
Stump v. Sparkman, 435 U.S. 349, 356 (1978).
Here, as is readily apparent, Plaintiff’s claims against Justice Dunne arise solely of out of
responsibilities while presiding over Plaintiff’s criminal case. Indeed, Plaintiff complains that
Justice Dunne has not yet scheduled a conference or decided his motion to dismiss the indictment.
Both of these actions are certainly duties that squarely fall within the scope of Justice Dunne’s
judicial capacity and jurisdiction. The Court therefore dismisses Plaintiff’s Section 1983 claims
against Justice Dunne under the doctrine of judicial immunity. See 28 U.S.C. § 1915(e)(2)(B)(i),
(iii); Mills v. Fischer, 645 F.3d 176, 177 (2d Cir. 2011) (“Any claim dismissed on the ground of
absolute judicial immunity is ‘frivolous’ for purposes of [the in forma pauperis statute].”).
2. Prosecutorial Immunity
Plaintiff’s Section 1983 claims against ADA Turk must also be dismissed. Prosecutors are
immune from civil suits for damages for acts committed within the scope of their official duties
where the challenged activities are not investigative in nature but, rather, are “intimately associated
with the judicial phase of the criminal process.” Simon v. City of New York, 727 F.3d 167, 171
(2d Cir. 2013) (internal quotation marks and citation omitted); -- --- ---------------see also Buckley v. Fitzsimmons,
509 U.S. 259 (1993) (holding that absolute immunity is analyzed under “functional approach” that
“looks to the nature of the function performed, not the identity of the actor who performed it”).
Here, Plaintiff’s Section 1983 claims against ADA Turk are based on actions within the
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scope of her official duties and associated with the initiation and conduct of a criminal proceeding.
Therefore, these claims are dismissed because they seek monetary relief against a defendant who
is immune from suit. 28 U.S.C. § 1915(e)(2)(b)(i), (iii); see Collazo v. Pagano, 656 F.3d 131, 134
(2d Cir. 2011) (holding that claim against prosecutor is frivolous if it arises from conduct that is
“intimately associated with the judicial phase of the criminal process”).
3. Sovereign Immunity
In addition, the Eleventh Amendment divests this Court of subject matter jurisdiction over
any claim for monetary damages against a state actor acting in his or her official capacity. See
Kentucky v. Graham, 473 U.S. 159, 169 (1985) (“The Court has held that, absent waiver by the
State or valid congressional override, the Eleventh Amendment bars a damages action against a
State in federal court.”). “It is well-established that New York State has not consented to Section
1983 suits in federal court . . . and that Section 1983 was not intended to override a state’s sovereign
immunity.” Mamot v. Board of Regents, 367 F. App’x 191, 192 (2d Cir. 2010) (internal citation
To the extent that Justice Dunne and ADA Turk are being sued in their official capacities,
they are protected by sovereign immunity as guaranteed by the Eleventh Amendment. See
Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Will v. Michigan Dep’t
of State Police, 491 U.S. 58, 71 (1989) (“[A] suit against a state official in his or her official
capacity is not a suit against the official but rather is a suit against the official’s office. As such,
it is no different from a suit against the State itself.”) (citations omitted); -- --- ----------see also Amaker v. N.Y.
State Dep’t of Corr. Servs., 435 F. App’x 52, 54 (2d Cir. 2011) (holding that an assistant district
attorney were sued in an official capacity “benefitted from New York’s Eleventh Amendment
Case 2:21-cv-01099-JMA-ST Document 12 Filed 09/08/21 Page 7 of 11 PageID #: 61
immunity against suit”) (citing Ying Jing Gan v. City of New York, 996 F.2d 522, 529 (2d Cir.
1993)) (holding that district attorney represents the state, not the county, and so is entitled to
Eleventh Amendment immunity). Accordingly, the Eleventh Amendment precludes Plaintiff's
Section 1983 claims seeking monetary damages from Justice Dunne and ADA Turk.
Accordingly, Plaintiff’s Section 1983 claims against Justice Dunne and ADA Turk are implausible
and are dismissed without prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b).
Plaintiff’s Section 1983 claims against Papa must also be dismissed. As noted above (see
supra at 4), a claim for relief under § 1983 must allege facts showing that each defendant “act[ed]
under color of state law.” Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) (internal quotation
marks and citation omitted); -- --- ----------------------- 526 U.S. 40, 50 (1999)
see also Am. Mfrs. Mut. Ins. Co. v. Sullivan,
(“[T]he under color of-state law element of § 1983 excludes from its reach merely private conduct,
no matter how discriminatory or wrongful.”) (internal quotation marks and citation omitted);
Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir. 2002) (“[T]he United States
Constitution regulates only the Government, not private parties.”).
Here, because Papa is alleged to be Plaintiff’s court-appointed defense attorney in the
underlying state court criminal proceedings (Compl. at 5), she is a private party who does not act
under color of state law. It is long established that 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.” Polk County v. Dodson, 454 U.S. 312, 325 (1981); Rodriguez v. Weprin, 116 F.3d
62, 65-66 (2d Cir. 1997). However, a private actor, such as Papa, may be considered to be acting
under the color of state law for purposes of Section 1983 if the private actor was a “‘willful
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participant in joint activity with the State or its agents.’” Ciambriello, 292 F.3d at 324 (quoting
Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970)). Section 1983 liability may also extend
to a private party who conspires with a state actor to violate a plaintiff’s constitutional rights.
Ciambriello, 292 F.3d at 323-24. “To establish joint action, a plaintiff must show that the private
citizen and the state official shared a common unlawful goal; the true state actor and the jointly
acting private party must agree to deprive the plaintiff of rights guaranteed by federal law.”
Anilao v. Spota, 774 F. Supp. 2d 457, 498 (E.D.N.Y. 2011) (internal quotation marks and citation
omitted). Alternatively, to show that there was a conspiracy between a private actor and the state
or its agents, a plaintiff must provide evidence of “(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 in
furtherance of that goal causing damages.” Ciambriello, 292 F.3d at 324-25. These two methods
of demonstrating state action -- “joint action” and “conspiracy with” -- are “intertwined” and
overlap in significant respects. Harrison v. New York, 95 F. Supp. 3d 293, 322 (E.D.N.Y. 2015)
(internal quotation marks and citation omitted).
Here, Plaintiff alleges only speculative and conclusory allegations that Papa acted jointly
with Justice Dunne and ADA Turk or conspired with them to deprive Plaintiff of his constitutional
rights. Indeed, Plaintiff claims that Justice Dunne and ADA Turk knew there was exculpatory
evidence and speculates that, therefore, they must have “participated” with or “conspired with
Danielle Papa to keep Plaintiff incarcerated.” (Compl. at 4.) Thus, Plaintiff has not alleged a
plausible conspiracy or joint actor claim. Accordingly, Plaintiff’s Section 1983 claims against
Papa are dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b).
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4. Pending State Criminal Proceedings
Though far from clear, to the extent that Plaintiff is asking the Court to intervene in his
pending state-court criminal proceedings, the Court must dismiss any such claims. Federal courts
ordinarily must abstain from exercising jurisdiction over constitutional claims seeking declaratory
or injunctive relief in three classes of state court proceedings: (1) “state criminal prosecutions”;
(2) “civil enforcement proceedings”; and (3) civil proceedings that “implicate a State’s interest in
enforcing the orders and judgments of its courts.” Sprint Communications, Inc. v. Jacobs, 571
U.S. 69, 73, 78 (2013) (internal quotation marks and citations omitted) (“We have not applied
Younger outside these three ‘exceptional’ categories, and today hold . . . that they define Younger’s
scope.”); - - --- ------------ 401 U.S. 37(1971).
see also Younger v. Harris,
Here, insofar as plaintiff seeks injunctive relief relating to his on-going state court criminal
prosecution3, this Court must abstain under the Younger abstention doctrine. Accordingly, any
claims for injunctive relief are implausible and are thus dismissed pursuant to 28 U.S.C. §§
State Law Claims
Under 28 U.S.C. § 1367(a), “the district courts shall have supplemental jurisdiction over
It appears that Plaintiff seeks the initiation of criminal proceedings against the Defendants pursuant to 18 U.S.C. §§
241, 242, and 2382. It is well-established that “there is no private right of action under these criminal statutes.”
Kelly v. New York, No. 19-CV-2063, 2020 WL 7042764, at *11 (E.D.N.Y. Nov. 30, 2020) (citing Hill v. Didio, 191
F. App’x 13, 14 (2d Cir. 2006) (no private right of action under 18 U.S.C. § 242); Ippolito v. Meisel, 958 F. Supp.
155, 161 (S.D.N.Y. 1997) (holding that there is no private right of action under 18 U.S.C. §§ 241 and 242)); see also
Corrado v. New York Off. of Temp., No. 15-CV-7316, 2016 WL 3181128, at *5 (E.D.N.Y. June 2, 2016) (dismissing
causes of action alleging violations of 18 U.S.C. §§ 242 and 2382, inter alia, with prejudice pursuant to 28 U.S.C. §
1915(e) (2)(B)(ii)) (citing Nguyen v. Ridgewood Sav. Bank, No. 14-CV-1058, 2015 WL 2354308, at *13 (E.D.N.Y.
May 15, 2015) (citation omitted) (dismissing claims for treason and misprision of treason under 18 U.S.C. §§ 2381
and 2382, respectively, because statutes do not provide private right of action) (additional citation omitted)).
Case 2:21-cv-01099-JMA-ST Document 12 Filed 09/08/21 Page 10 of 11 PageID #: 64
all other claims that are so related to claims in the action within such original jurisdiction that they
form part of the same case or controversy under Article III of the United States Constitution.”
However, courts “may decline to exercise supplemental jurisdiction over a claim” if “the district
court has dismissed all claims over which it has original jurisdiction.” Id. § 1367(c); (c)(3); see
Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234, 245 (2d. Cir. 2011). The Supreme
Court has explained that “in the usual case in which all federal-law claims are eliminated before
trial, the balance of factors to be considered under the pendent jurisdiction doctrine - - judicial
economy, convenience, fairness, and comity - - will point toward declining to exercise jurisdiction
over the remaining state-law claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7
Here, given the absence of any viably pled federal law claim, the interests of judicial
economy, convenience, fairness, and comity weigh in favor of not exercising supplemental
jurisdiction at this time over any state law claims, including Plaintiff’s purported speedy
indictment claim under CPL 180.80, that may be reasonably construed from the complaint.
Accordingly, the Court declines to exercise supplemental jurisdiction over any potential state-law
claims contained in Plaintiff’s complaint and dismisses any such claims without prejudice.
Leave to Amend
A pro se plaintiff should ordinarily be given the opportunity “to amend at least once when
a liberal reading of the complaint gives any indication that a valid claim might be stated.” Shomo
v. City of New York, 579 F.3d 176 (2d Cir. 2009) (quoting Gomez v. USAA Fed. Sav. Bank, 171
F.3d 794, 795-96 (2d Cir. 1999) (internal quotation marks omitted)). Indeed, a pro se plaintiff
who brings a civil rights action, “should be ‘fairly freely’ afforded an opportunity to amend his
Case 2:21-cv-01099-JMA-ST Document 12 Filed 09/08/21 Page 11 of 11 PageID #: 65
complaint.” Boddie v. New York State Div. of Parole, No. 08-CV-911, 2009 WL 1033786, at *5
(E.D.N.Y. Apr. 17, 2009) (quoting Frazier v. Coughlin, 850 F.2d 129, 130 (2d Cir. 1988)) (internal
quotation marks omitted). However, while “pro se plaintiffs are generally given leave to amend
a deficient complaint, a district court may deny leave to amend when amendment would be futile.”
Id. (citations omitted).
Here, the Court has carefully considered whether Plaintiff should be granted leave to
amend his complaint. Because the defects in Plaintiff’s claims are substantive and could not be
cured in an amended pleading, leave to amend the complaint is denied.
For the forgoing reasons, Plaintiff’s application to proceed - ---- ------ is granted,
in forma pauperis
but the complaint is dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i), (iii), 1915A(b). The
Clerk of the Court is ordered to enter judgment and to close this case.
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 - ---- ------ status is denied for the purpose
in forma pauperis
of any appeal. See Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
The Clerk of Court shall mail a copy of this Order to the Plaintiff at his address of record.
Joan M. Azrack
United States District Judge
September 8, 2021
Central Islip, New York
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