Pittman v. Low et al

Filing 17

MEMORANDUM-DECISION AND ORDER: The Court hereby ORDERS that Magistrate Judge Stewart's February 8, 2017 Report-Recommendation and Order (Dkt. No. 10) is ADOPTED in its entirety; and the Court further ORDERS that Plaintiff's motions for in junctive relief (Dkt. Nos. 6, 14) are DENIED; and the Court further ORDERS that Plaintiffs motion for leave to proceed in forma pauperis (Dkt. No. 16) is DENIED as MOOT; and the Court further ORDERS that Plaintiff's claims against Defendants Stanzione, Low, Scatucco, and Halperin are DISMISSED with prejudice; and the Court further ORDERS that Defendants Stanzione, Low, Scatucco, and Halperin are terminated from this action; and the Court further ORDERS that Plaintiff's remaining claims are DISMISSED with leave to amend; and the Court further ORDERS that any amended complaint must be filed within THIRTY (30) DAYS from the date of this Order; and the Court further ORDERS that if Plaintiff fails to file an amended complaint w ithin THIRTY (30) DAYS from the date of this Order, the Clerk of the Court shall enter judgment in Defendants' favor and close this case, without any additional action by this Court; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Order on all parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 5/18/2017. (Copy served via certified and regular mail)(ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
HENRY E. PITTMAN,
also known as Abdus Sabury Fateen
Akbary Pittman,
Plaintiff,
vs.

1:16-cv-01464
(MAD/DJS)

JEFFREY J. LOW, Assistant District Attorney;
JOSEPH STANZIONE, District Attorney;
JOHN LYLES, Sergeant at Catskill Police Dept.;
ANGELO F. SCATUCCO, Public Defender;
ZACHARY P. HALPERIN, Assistant Public
Defender; DAVID R. DARLING, Chief, Catskill
Police Dept.; DANIEL WAER, Sergeant;
RONALD FRASCELLO; MICHAEL J. SPITZ,
Superintendent; DAVON ANDREWS, Staff Member
and Correctional Officer; NORAH AHEARN,
Staff Member and Correctional Officer,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

HENRY E. PITTMAN
Columbia County Jail
85 Industrial Tract
Hudson, New York 12534
Plaintiff, pro se
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On December 9, 2016, pro se Plaintiff Henry E. Pittman ("Plaintiff") filed a complaint
pursuant to 42 U.S.C. § 1983 ("Section 1983") against eleven named Defendants. See Dkt. No. 1
at 2-4. On January 13, 2017, Plaintiff filed a letter motion seeking an injunction against Greene
County Jail and Columbia County Jail. See Dkt. No. 6. On February 8, 2017, Magistrate Judge

Daniel J. Stewart issued a Report-Recommendation and Order recommending that Plaintiff's
claims against certain Defendants be dismissed with prejudice, and that Plaintiff's remaining
claims be dismissed with leave to replead. See Dkt. No. 10 at 10. Judge Stewart also
recommended that Plaintiff's motion for injunctive relief be denied. See id. On March 13, 2017,
Plaintiff filed another motion seeking injunctive relief, this time against Columbia County Jail
alone. See Dkt. No. 14.
Currently before the Court are Plaintiff's two motions seeking injunctive relief, see Dkt.
Nos. 6, 14, and Judge Stewart's Report-Recommendation and Order, see Dkt. No. 10.
II. BACKGROUND1
Plaintiff is currently incarcerated at Columbia County Jail, though he was incarcerated at
Greene County Jail when he filed his complaint. See Dkt. No. 5. Plaintiff claims that on March
23, 2016, he was at his friend's house when officers arrived and questioned his friends. See Dkt.
No. 1 at 6. Defendant Officer Daniel Waer then questioned Plaintiff and discovered that Plaintiff
possessed a small bag of marijuana, three small bags allegedly containing cocaine, and various
prescription pills. See id. On March 29, 2016, Plaintiff attended a preliminary hearing where
Defendant Sergeant John Lyles testified that Plaintiff possessed cocaine. See id. On September
15, 2016, Plaintiff attended a grand jury proceeding accompanied by Defendant Zachery
Halperin, a public defender. See id. at 6-7. Plaintiff was indicted in County Court shortly
thereafter. See id. at 7. On November 10, 2016, Plaintiff received a substance report from
Defendant Halperin, which indicated that no controlled substances were found in the plastic bag
containing powder that Plaintiff previously had in his possession. See id.; Dkt. No. 1-3 at 13.

This background is derived from the allegations in Plaintiff's complaint. These
allegations are presumed to be true only for the purposes of this motion, and do not constitute
findings of fact by the Court.
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Plaintiff claims that Defendants Joseph Stanzione, the District Attorney, and Ronald Frascello, a
Catskill Police Department Lieutenant, were aware of the results of the substance report, yet the
indictment still charged Plaintiff with possessing cocaine. See Dkt. No. 1 at 7.
Plaintiff also alleges that officials at Greene County Jail interfered with Plaintiff's ability
to file his complaint. See id. at 7-8. Plaintiff alleges that Defendant Superintendent Michael
Spitz limited Plaintiff's ability to copy materials and use a notary and that Defendant Correctional
Officer Norah Ahrean refused to accept Plaintiff's grievances regarding the interference with the
filing of his complaint. See id. Similarly, Plaintiff alleges that Defendant staff member Dawn
Andrews refused to sign a document related to Plaintiff's inmate account. See id. at 8.
III. DISCUSSION
A.

Standard of Review
When reviewing a complaint under 28 U.S.C. § 1915(e), courts are guided by the

applicable requirements of the Federal Rules of Civil Procedure. Rule 8(a) of the Federal Rules
of Civil Procedure provides that a pleading must contain "a short and plain statement of the claim
showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). While Rule 8(a) "does not
require 'detailed factual allegations,' . . . it demands more than an unadorned" recitation of the
alleged misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)) (other citation omitted).
To survive dismissal for failure to state a claim, a party need only present a claim that is
"plausible on its face." Twombly, 550 U.S. at 570. "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." Iqbal, 556 U.S. at 678 (citation omitted). In
determining whether a complaint states a claim upon which relief may be granted, "the court must
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accept the material facts alleged in the complaint as true and construe all reasonable inferences in
the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted).
However, "the tenet that a court must accept as true all of the allegations contained in a complaint
is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. Moreover, "[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
(citation omitted).
In reviewing a report and recommendation, a district court "may accept, reject, or modify,
in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. §
636(b)(1)(C). When a party makes specific objections to a magistrate judge's report, the district
court engages in de novo review of the issues raised in the objections. See id.; Farid v. Bouey,
554 F. Supp. 2d 301, 307 (N.D.N.Y. 2008). When a party fails to make specific objections, the
court reviews the magistrate judge's report for clear error. See Farid, 554 F. Supp. 2d at 307; see
also Gamble v. Barnhart, No. 02-CV-1126, 2004 WL 2725126, *1 (S.D.N.Y. Nov. 29, 2004).
Plaintiff has not filed objections in this case.
A litigant's failure to file objections to a magistrate judge's report and recommendation,
even when that litigant is proceeding pro se, waives any challenge to the report on appeal. See
Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) (holding that, "[a]s a rule, a party's failure to
object to any purported error or omission in a magistrate judge's report waives further judicial
review of the point" (citation omitted)). A pro se litigant must be given notice of this rule; notice
is sufficient if it informs the litigant that the failure to timely object will result in the waiver of
further judicial review and cites pertinent statutory and civil rules authority. See Frank v.
Johnson, 968 F.2d 298, 299 (2d Cir. 1992); Small v. Sec'y of Health and Human Servs., 892 F.2d
15, 16 (2d Cir. 1989) (holding that a pro se party's failure to object to a report and
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recommendation does not waive his right to appellate review unless the report explicitly states
that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b)(1)
and Rules 72, 6(a), and former 6(e) of the Federal Rules of Civil Procedure).
B.

Plaintiff's Section 1983 Claims
The Court agrees with Judge Stewart that, liberally construed, Plaintiff asserts claims for

malicious prosecution under the Fourth Amendment and for interference with Plaintiff's right of
access to the courts. See Dkt. No. 10 at 4.
At the outset, Judge Stewart correctly recommended that claims against certain
Defendants should be dismissed with prejudice. As Judge Steward noted, Defendants Stanzione
and Low are entitled to prosecutorial immunity. See Dkt. No. 10 at 5. "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.'"
Shmueli v. City of New York, 424 F.3d 231, 236 (2d Cir. 2005) (quoting Imbler v. Pachtman, 424
U.S. 409, 410, 431 (1976)) (other citations omitted). Since Plaintiff's claims against Defendants
Stanzione and Low arise from Plaintiff's prosecution, Plaintiff's claims against them are dismissed
with prejudice.
Similarly, Judge Stewart correctly recommended that the claims against Defendants
Scatucco and Halperin should be dismissed with prejudice because the claims arise from their
representation of Plaintiff. See Dkt. No. 10 at 6. "[I]t is well-established that court-appointed
attorneys performing a lawyer's traditional functions as counsel to defendant do not act 'under
color of state law' and therefore are not subject to suit under 42 U.S.C. § 1983." Rodriguez v.
Weprin, 116 F.3d 62, 65-66 (2d Cir. 1997) (citations omitted). Therefore, Plaintiff's claims
against Defendants Scatucco and Halperin are dismissed with prejudice.
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Judge Stewart also recommended that Plaintiff's malicious prosecution claim be
dismissed. See id. at 6-7. To state a claim for malicious prosecution, a plaintiff must allege "'(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.'" Manganiello v. City of New York, 612
F.3d 149, 161 (2d Cir. 2010) (quoting Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997)) (other
citations omitted). As Judge Stewart found, there are no allegations in the complaint that a prior
criminal proceeding has been terminated in Plaintiff's favor. See Dkt. No. 10 at 6-7. Since
Plaintiff has failed to allege that element, Plaintiff's claim for malicious prosecution is dismissed.
Judge Stewart also correctly recommended that Plaintiff's right of access to the courts
claim be dismissed. See id. at 8. "In order to establish a violation of a right of access to courts, a
plaintiff must demonstrate that a defendant caused 'actual injury,' i.e., took or was responsible for
actions that 'hindered [a plaintiff's] efforts to pursue a legal claim.'" Monsky v. Moraghan, 127
F.3d 243, 247 (2d Cir. 1997) (quoting Lewis v. Casey, 518 U.S. 343, 351 (1996)). "Moreover,
[plaintiffs] must show 'that a nonfrivolous legal claim ha[d] been frustrated or was being impeded'
due to the action or inaction of prison officials." Benjamin v. Kerik, 102 F. Supp. 2d 157, 162
(S.D.N.Y. 2000) (quoting Lewis, 518 U.S. at 353). As Judge Stewart concluded, Plaintiff has
failed to allege that any of Defendants' actions impeded or frustrated Plaintiff's ability to pursue
his legal claims, and thus, Plaintiff has failed to allege an "actual injury." See Dkt. No. 10 at 7-8.
Accordingly, Plaintiff's access to the courts claim is dismissed.
Normally, a court should not dismiss a complaint filed by a pro se litigant without
granting leave to amend at least once "'when a liberal reading of the complaint gives any
indication that a valid claim might be stated.'" Dolan v. Connolly, 794 F.3d 290, 295 (2d Cir.
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2015) (quoting Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010)). However, an opportunity
to amend is not required where "the problem with [plaintiff's] causes of action is substantive"
such that "better pleading will not cure it." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)
(citation omitted).
As Judge Stewart correctly recommended, Plaintiff's claims against Defendants Stanzione,
Low, Scatucco, and Halperin are dismissed with prejudice for the reasons explained above.
However, in light of Plaintiff's pro se status, his remaining claims are dismissed with leave to
amend.
C.

Plaintiff's Request for Injunctive Relief
On January 13, 2017, Plaintiff filed a letter motion requesting an injunction against

Greene County Jail and Columbia County Jail. See Dkt. No. 6. As Judge Stewart noted,
Plaintiff's transfer to Columbia County Jail moots his claim for injunctive relief against Greene
County Jail. See Lloyd v. City of New York, 43 F. Supp. 3d 254, 269 (S.D.N.Y. 2014). Judge
Stewart also correctly recommended that Plaintiff's request for an injunction against Columbia
County Jail be denied because Columbia County Jail is not named as a defendant to this action.
See Dkt. No. 10 at 9. "Except in limited circumstances not relevant here, a court may not order
injunctive relief as to non-parties to an action." Tolbert v. Koenigsmann, No. 9:13-cv-1577, 2015
WL 7871344, *2 (N.D.N.Y. Dec. 4, 2015) (citations omitted). On March 13, 2017, Plaintiff filed
another letter seeking an injunction against Columbia County Jail. See Dkt. No. 14. Again,
Columbia County Jail is not a named defendant in this action, and there is no indication that an
injunction should be granted against a non-party in this case. Accordingly, Plaintiff's motion is
denied.
IV. CONCLUSION
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Having carefully reviewed Magistrate Judge Stewart's Report-Recommendation and
Order, Plaintiff's submissions, and the applicable law, and for the above-stated reasons, the Court
hereby
ORDERS that Magistrate Judge Stewart's February 8, 2017 Report-Recommendation and
Order (Dkt. No. 10) is ADOPTED in its entirety; and the Court further
ORDERS that Plaintiff's motions for injunctive relief (Dkt. Nos. 6, 14) are DENIED; and
the Court further
ORDERS that Plaintiff’s motion for leave to proceed in forma pauperis (Dkt. No. 16) is
DENIED as MOOT; and the Court further
ORDERS that Plaintiff's claims against Defendants Stanzione, Low, Scatucco, and
Halperin are DISMISSED with prejudice; and the Court further
ORDERS that Defendants Stanzione, Low, Scatucco, and Halperin are terminated from
this action; and the Court further
ORDERS that Plaintiff's remaining claims are DISMISSED with leave to amend; and the
Court further
ORDERS that any amended complaint must be filed within THIRTY (30) DAYS from
the date of this Order;2 and the Court further
ORDERS that if Plaintiff fails to file an amended complaint within THIRTY (30) DAYS
from the date of this Order, the Clerk of the Court shall enter judgment in Defendants' favor and
close this case, without any additional action by this Court; and the Court further

Any amended complaint must be a complete pleading that supersedes the original
complaint in all respects and does not incorporate by reference any portion of the original
complaint.
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ORDERS that the Clerk of the Court shall serve a copy of this Order on all parties in
accordance with the Local Rules.

IT IS SO ORDERED.
Dated: May 18, 2017
Albany, New York

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