Paul v. Onondaga County District Attorney's Office et al

Filing 8

ORDER AND REPORT-RECOMMENDATION: ORDERED that Plaintiffs IFP application (Dkt. No. 6) is GRANTED, and it is further ORDERED that Plaintiffs motion for appointment of counsel (Dkt. No. 3) is DENIED WITHOUT PREJUDICE; and it is further RECOMMENDED tha t Plaintiffs complaint (Dkt. No. 1) be DISMISSED WITH PREJUDICE AND WITHOUT LEAVE TO AMEND as against defendants Onondaga County District Attorneys Office, William Fitzpatrick, and Shea Maloy pursuant to 28 U.S.C.§§ 1915(e)(2)(B) and 1915A; and it is further RECOMMENDED that Onondaga County District Attorneys Office, William Fitzpatrick, and Shea Maloy be TERMINATED as defendants; and it is further RECOMMENDED that Plaintiff be granted leave to file an amended complaint consistent with the foregoing recommendations; and it is further RECOMMENDED that if the District Court adopts this Order and Report- Recommendation, Plaintiff be permitted thirty (30) days from the filing date of the District Courts Order to file an amended compla int and that if Plaintiff fails to file an amended complaint within the time allowed and without requesting an extension of time to do so, this case be CLOSED without further order of the Court.( Objections to R&R due by 2/20/2024, Case Review Deadline 2/23/2024). Signed by Magistrate Judge Therese Wiley Dancks on 2/6/2024. (Copy served via regular mail)(khr)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
PRINELL PAUL,
Plaintiff,
v.

5:23-cv-01385
(GTS/TWD)

ONONDAGA COUNTY DISTRICT ATTORNEY’S
OFFICE, et al.,
Defendants.
____________________________________________
APPEARANCES:
PRINELL PAUL
Plaintiff, pro se
05002328
Onondaga County Correctional Facility
6660 E. Seneca Turnpike
Jamesville, NY 13078
THÉRÈSE WILEY DANCKS, United States Magistrate Judge
ORDER AND REPORT-RECOMMENDATION
I.

INTRODUCTION
The Clerk has sent to the Court for review a complaint filed by pro se plaintiff Prinell

Paul pursuant to 42 U.S.C. § 1983 (“Section 1983”) asserting claims against the Onondaga
County District Attorney’s Office; William Fitzpatrick, District Attorney (“DA Fitzpatrick”);
and Shea Maloy, Assistant District Attorney (“ADA Maloy”). (Dkt. No. 1.) Plaintiff has not
paid the filing fee for this action and seeks leave to proceed in forma pauperis (“IFP”). (Dkt.
No. 6.) Plaintiff also filed a motion for counsel. (Dkt. No. 3.)

II.

IFP APPLICATON 1
Section 1915 of Title 28 of the United States Code (“Section 1915”) “permits an indigent

litigant to commence an action in a federal court without prepayment of the filing fee that would
ordinarily be charged.” 2 Cash v. Bernstein, No. 09-CV-1922, 2010 WL 5185047, at *1
(S.D.N.Y. Oct. 26, 2010). “Although an indigent, incarcerated individual need not prepay the
filing fee at the time . . . of filing, he must subsequently pay the fee, to the extent he is able to do
so, through periodic withdrawals from his inmate accounts.” Id. (citing 28 U.S.C. § 1915(b);
Harris v. City of New York, 607 F.3d 18, 21 (2d Cir. 2010)).
Upon review, Plaintiff’s IFP application (Dkt. No. 6.), he has demonstrated sufficient
economic need. See 28 U.S.C. § 1915(a)(2). Plaintiff has also filed the inmate authorization
form required in this District. (Dkt. No. 4.) Accordingly, Plaintiff’s IFP application is granted.
(Dkt. No. 6.)
III.

SUFFICIENCY OF THE COMPLAINT
A.

Standard of Review

Having found Plaintiff meets the financial criteria for commencing this action IFP, and
because he seeks relief from an officer or employee of a governmental entity, the Court must

1

On November 6, 2023, Plaintiff’s first IFP application was denied and this action was
administratively closed. (Dkt. No. 5.) The case was reopened on November 17, 2023, upon
receipt of the required filing. (Dkt. Nos. 6, 7.)
2

Section 1915(g) prohibits a prisoner from proceeding IFP where, absent a showing of
“imminent danger of serious physical injury,” a prisoner has filed three or more actions that were
subsequently dismissed as frivolous, malicious, or failing to state a claim upon which relief may
be granted. 28 U.S.C. § 1915(g). The Court has reviewed Plaintiff’s litigation history on the
Federal Judiciary’s Public Access to Court Electronic Records (“PACER”) Service. PACER
Case Locator, https://pcl.uscourts.gov/pcl/pages/search/findPartyAdvanced.jsf (last visited Jan.
31, 2024). Based on that review, it does not appear that Plaintiff had acquired three strikes for
purposes of Section 1915(g) as of the date this action was commenced.
2

consider the sufficiency of the allegations set forth in complain in light of 28 U.S.C. §§ 1915(e)
and 1915A. Section 1915(e) of Title 28 of the United States Code directs that, when a plaintiff
seeks to proceed in forma pauperis, “the court shall dismiss the case at any time if the court
determines that . . . (B) the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on
which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune
from such relief.” 28 U.S.C. § 1915(e)(2)(B). 3
Similarly, under 28 U.S.C. § 1915A, a court must review any “complaint in a civil action
in which a prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity” and must “identify cognizable claims or dismiss the complaint, or any
portion of the complaint, if the complaint . . . is frivolous, malicious, or 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); see also Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir.
1999) (per curiam) (noting Section 1915A applies to all actions brought by prisoners against
government officials even when plaintiff paid the filing fee). The term “prisoner” includes
pretrial detainees. 28 U.S.C. § 1915A(c).
Additionally, when reviewing a complaint, the Court looks to the Federal Rules of Civil
Procedure. Rule 8 of the Federal Rules of Civil Procedure provides that a pleading which sets
forth a claim for relief shall contain, inter alia, “a short and plain statement of the claim showing
that the pleader is entitled to relief.” See Fed. R. Civ. P. 8(a)(2). The purpose of Rule 8 “is to
give fair notice of the claim being asserted so as to permit the adverse party the opportunity to
file a responsive answer, prepare an adequate defense and determine whether the doctrine of res

3

To determine whether an action is frivolous, a court must look to see whether the complaint
“lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
3

judicata is applicable.” Hudson v. Artuz, No. 95 Civ. 4768, 1998 WL 832708, at *1 (S.D.N.Y.
Nov. 30, 1998) (quoting Powell v. Marine Midland Bank, No. 95-CV-0063 (TJM), 162 F.R.D.
15, 16 (N.D.N.Y. June 23, 1995)) (other citations omitted).
A court should not dismiss a complaint if the plaintiff has stated “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. 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). While the court should construe the factual
allegations in the light most favorable to the plaintiff, “the tenet that a court must accept as true
all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id.
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). Rule 8 “demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. Thus, a pleading that
contains only allegations which “are so vague as to fail to give the defendants adequate notice of
the claims against them” is subject to dismissal. Sheehy v. Brown, 335 F. App’x 102, 104 (2d
Cir. 2009).
The Court will construe the allegations in the complaint with the utmost leniency. See,
e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding a pro se litigant’s complaint is to be
held “to less stringent standards than formal pleadings drafted by lawyers”).
B.

Summary of the Complaint

The incidents that form the foundation for the complaint occurred while Plaintiff was
confined as at Onondaga County Correctional Facility. The following facts are set forth as
alleged by Plaintiff in the complaint.

4

Since July 2, 2023, Plaintiff has been “held unlawfully” as a New York State prisoner at
the Onondaga County Correctional Facility after he “copped out on parole” and was sentenced to
14 months for a parole violation. (Dkt. No. 1 at 1; 4 Dkt. No. 6 at 7. 5)
On June 8, 2023, Plaintiff was “denied to go” to his grand jury and ADA Maloy “held”
his grand jury without him. Id. at 2. Plaintiff’s lawyer, Eric Jerscske, also “denied” Plaintiff “his
grand jury.” (Dkt. No. 6 at 6, 7.) During the grand jury proceeding, ADA Maloy “lied” and
“committed perjury” by stating the “gun was operable” even though “they never recovered a
gun.” (Dkt. No. 1 at 2-3.) Id. DA Fitzpatrick “allowed this and did not stop it.” Id. at 3.
Plaintiff was “indicted on a sole possession of a gun charge a C-Felony criminal possession of a
weapon in the 2nd degree in front of a Grand Jury.” (Dkt. No. 6 at 6.) On June 29, 2023,
Plaintiff was arraigned on that charge and has been unlawfully held since June 2, 2023. Id. at 7.
Plaintiff sent “multiple dismissal of the case due to insufficient evidence and it was
ignored.” (Dkt. No. 6 at 8.) Judge Doran has “refused to hear them” and has “denied his motion
to review the grand jury minutes.” Id. Plaintiff claims he is “being unlawfully held on a BS
indictment” all because of ADA Maloy lying under oath.” Id. DA Fitzpatrick has also “ignored”
Plaintiff’s written complaints. Id.

4

Page references to documents identified by docket number are to the numbers assigned by the
CM/ECF docketing system maintained by the Clerk’s Office. Unless otherwise indicated,
excerpts from the record are reproduced exactly as they appear in the original and errors in
spelling, punctuation, and grammar have not been corrected.
5

Plaintiff’s complaint consists of four pages handwritten. (Dkt. No. 1.) Plaintiff also submitted
a seven-page handwritten “complaint” with his IFP application. (See Dkt. No. 6 at 5-12.) At this
early juncture, and in deference to Plaintiff’s pro se status, rather than treat this additional
complaint as a superseding pleading, the Court will consider the allegations as a supplement to
his original complaint and consider them as a single pleading for purposes of initial review.
5

Plaintiff also claims that on June 4, 2023, he was “gang assaulted by 4 to 6 Deputies and
Lieutenant Sheriff Deputy Jarvis due to the lie Asst. D.A Shae Maloy told the Grand Jury and
due to the fact I was not informed to go to the Grand Jury or offered.” (Dkt. No. 1 a 3.) During
this assault, Plaintiff’s tooth was “knocked out” and another was “chipped . . . all because of this
false baseless indictment.” (Dkt. No. 6 at 8.)
Plaintiff’s “motions and letters to press charges against the Lieutenant Deputy Sheriff
Jarvis who commanded and partook in the gang assault and motion to dismiss charges” has been
“denied” and “not at all heard by” ADA Maloy and DA Fitzpatrick. Id.
Plaintiff alleges his constitutional rights were violated under the First, Sixth, Eighth, and
Fourteenth Amendments. (Dkt. No. 1 at 3.) Plaintiff seeks monetary damages, injunctive relief,
declaratory relief, “costs,” and any “additional relief this Court deems proper and equitable.”
(Dkt. No. 6 at 9; Dkt. No. 1 at 4.)
C.

Nature of Action

Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, which establishes a cause of action for
‘“the deprivation of any rights, privileges, or immunities secured by the Constitution and laws’
of the United States.” Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 508 (1990) (citations
omitted); see also Myers v. Wollowitz, No. 95-CV-0272, 1995 WL 236245, at *2 (N.D.N.Y. Apr.
10, 1995) (finding that Ҥ 1983 is the vehicle by which individuals may seek redress for alleged
violations of their constitutional rights”). “Section 1983 itself creates no substantive rights, [but]
. . . only a procedure for redress for the deprivation of rights established elsewhere.” Sykes v.
James, 13 F.3d 515, 519 (2d Cir. 1993). “To state a claim under § 1983, a plaintiff must allege
that defendants violated plaintiff’s federal rights while acting under color of state law.”
McGugan v. Aldana-Bernier, 752 F.3d 224, 229 (2d Cir. 2014) (citations omitted).

6

IV.

ANALYSIS
A.

Onondaga County District Attorney’s Office

Plaintiff names Onondaga County District Attorney’s Office as a defendant. (Dkt. No. 1
at 1-2; Dkt. No. 6 at 1-2.) Under New York law, departments that are merely administrative
arms of a municipality do not have a legal identity separate and apart from the municipality and
therefore, cannot sue or be sued. See Henry v. Cnty. of Nassau, 6 F.4th 324, 336 (2d Cir. 2021)
(citing Jenkins v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007)). “Courts have routinely
applied this rule to conclude that ‘the District Attorney’s Office is not a suable entity.’” Harris
v. Tioga Cnty., 663 F. Supp. 3d 212, 233 (N.D.N.Y. 2023) (quoting Woodward v. Office of Dist.
Att’y, 689 F. Supp. 2d 655, 658 (S.D.N.Y. 2010)); see, e.g., Griffith v. Sadri, No. 07-cv-4824,
2009 WL 2524961, at *8 (E.D.N.Y. Aug. 14, 2009) (“[A] district attorney’s office is not a
separate legal entity capable of being sued pursuant to § 1983.”); see also Adames v. Cnty. of
Suffolk Court, No. 18-CV-4069, 2019 WL 2107261, at *2 (E.D.N.Y. May 14, 2019) (“Plaintiff’s
Section 1983 claims against the Jail, the County Court, and DA’s Office are not plausible
because none of these entities have independent legal identities.”).
Accordingly, the Court recommends that Plaintiff’s Section 1983 claims against
Onondaga County District Attorney’s Office be dismissed with prejudice pursuant 28 U.S.C. §§
1915(e)(2)(B)(ii) and 1915A(b)(1).
B.

DA Fitzpatrick and ADA Malay

Plaintiff seeks to sue DA Fitzpatrick and ADA Malay in their individual and official
capacities. (Dkt. No. 1 at 1-2; Dkt. No. 6 at 1-2.)

7

1.

Individual Capacity

“It is by now well established that a state prosecuting attorney who acted within the scope
of his duties in initiating and pursing 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) (citation
and internal quotation marks omitted) (collecting cases). “Because the immunity attaches to the
official prosecutorial function . . . and because the initiation and pursuit of a criminal
prosecution are quintessential prosecutorial functions . . . the prosecutor has absolute immunity
for the initiation and conduct of a prosecution unless he proceeds in the clear absence of all
jurisdiction.” Id. at 237 (citations and internal quotation marks omitted).
“Prosecutorial immunity from § 1983 liability is broadly defined, covering virtually all
acts, regardless of motivation, associated with the prosecutor’s function as an advocate.”
Kroemer v. Tantillo, 758 F. App’x 84, 86-87 (2d Cir. 2018). This includes “the decision to bring
charges against a defendant, presenting evidence to a grand jury, and the evaluation of evidence
prior to trial.” Moye v. City of New York, No. 11-cv- 316, 2012 WL 2569085, at *5 (S.D.N.Y.
July 3, 2012) (internal quotation marks and citations omitted).
“[O]nce a court determines that challenged conduct involves a function covered by
absolute immunity, the actor is shielded from liability for damages regardless of the
wrongfulness of his motive or the degree of injury caused.” Bernard v. Cnty. of Suffolk, 356
F.3d 495, 503 (2d Cir. 2004) (citation omitted). Immunity even extends to the falsification of
evidence and the coercion of witnesses, the knowing use of perjured testimony, the deliberate
withholding of exculpatory information, the making of false or defamatory statements in judicial
proceedings, and conspiring to present false evidence at a criminal trial. See Taylor v.

8

Kavanagh, 640 F.2d 450, 452 (2d Cir. 1981); Imbler v. Pachtman, 424 U.S. 409, 431 n.34
(1976); Burns v. Reed, 500 U.S. 478, 490 (1991); Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994).
Here, the allegations against DA Fitzpatrick and ADA Maloy arise out of acts intimately
associated with the judicial phase of the criminal process, in their role as advocates, including the
initiation of criminal proceedings against Plaintiff and presenting evidence to a grand jury. See
Ogunkoya v. Monaghan, 913 F.3d 64, 71 (2d Cir. 2019) (“The decision to initiate prosecution,
what charges to bring, and how to perfect and consolidate those charges is a quintessential
prosecutorial function.”) (citation omitted); Pinaud v. Cnty. of Suffolk, 52 F.3d 1139, 1149 (2d
Cir. 1995) (holding district attorneys absolutely immune from claim for malicious prosecution
and presentation of false evidence to the grand jury); Hill v. City of New York, 45 F.3d 653, 66061 (2d Cir. 1995) (holding prosecutors and those working under their direction absolutely
immune for initiating prosecution and for conduct before a grand jury). Therefore, the
prosecutors are entitled to absolute prosecutorial immunity.6
As both DA Fitzpatrick and ADA Maloy are entitled to prosecutorial immunity, it is
recommended the complaint against them be dismissed with prejudice pursuant 28 U.S.C. §§
1915(e)(2)(B)(ii) and 1915A(b)(1).
2.

Official Capacity

The Eleventh Amendment provides that “[t]he Judicial power of the United States shall
not be construed to extend to any suit in law or equity, commenced or prosecuted against one of

6

Aside from this deficiency, “there is no federal constitutional right to testify before a grand
jury, nor, for that matter, is there even a federal right to a grand jury in state criminal
proceedings.” Franklin v. Warren Cnty. D.A.’s Off., No. 08-CV-0801, 2009 WL 161314, at *2
(N.D.N.Y. Jan. 21, 2009) (sua sponte dismissing Fourteenth Amendment claims as not
cognizable under Section 1983, “as the factual basis for such claims – the lack of a preliminary
hearing or appearance before the grand jury – do not implicate federal rights”) (citations
omitted). As such, Plaintiff’s Section 1983 claims related to the grand jury are not plausible.
9

the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”
U.S. CONST. amend. XI. Regardless of the nature of the relief sought, in the absence of the
State’s consent or waiver of immunity, a suit against the State or one of its agencies or
departments is proscribed by the Eleventh Amendment. Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984). “New York State has not consented to suit in federal
court.” Abrahams v. Appellate Div. of Supreme Court, 473 F. Supp. 2d 550, 556 (S.D.N.Y.
2007) (citing Trotman v. Palisades Interstate Park Comm’n, 557 F.2d 35, 38-40 (2d. Cir. 1977)).
Section 1983 claims do not abrogate the Eleventh Amendment immunity of the states. See
Quern v. Jordan, 440 U.S. 332, 340-41 (1979).
“When a defendant is sued in his official capacity, we treat the suit as one against the
‘entity of which an officer is an agent.’” D’Alessandro v. City of New York, 713 F. App’x 1, 8
(2d Cir. 2017) (quoting Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)). “[I]f a district
attorney or an assistant district attorney acts as a prosecutor, she is an agent of the state, and
therefore immune from suit in her official capacity.” Id. (citing Ying Jing Gan v. City of New
York, 996 F.2d 522, 536 (2d Cir. 1993)); see Rich v. New York, No. 21-CV-3835, 2022 WL
992885, at *5 n.4 (S.D.N.Y. Mar. 31, 2022) (“[A]ny claims Plaintiff may raise against the DA
Defendants in their ‘official capacity’ would be precluded by immunity under the Eleventh
Amendment.”); Gentry v. New York, No. 21-CV-0319 (GTS/ML), 2021 WL 3037709, at *6
(N.D.N.Y. June 14, 2021) (recommending dismissal of the plaintiff’s claims against the
defendant assistant district attorneys in their official capacities—which were effectively claims
against the State of New York—as barred by the Eleventh Amendment), report and
recommendation adopted, 2021 WL 3032691 (N.D.N.Y. July 19, 2021).

10

As both DA Fitzpatrick and ADA Maloy are arms of the state, they are entitled to
Eleventh Amendment immunity, and it is recommended that the complaint against them be
dismissed with prejudice pursuant 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
C.

Rule 10

Throughout the complaint, Plaintiff refers to various individuals and entities who are not
identified in the caption, or list of parties, as defendants. (Dkt. No. 1 at 1, 2, 3; Dkt. No. 6 at 1, 2,
6, 7.) Plaintiff refers to Eric Jerscske, Judge Doran, Lieutenant Sheriff Deputy Jarvis, and “4 to
6” Deputies. (Dkt. No. 1 at 4; Dkt. No. 6 at 6, 7.)
Rule 10(a) of the Federal Rules of Civil Procedure provides that, “the title of the
complaint must name all the parties.” Fed. R. Civ. P. 10(a). A party not named in the caption of
the complaint is not a party to the action. Abbas v. U.S., No. 10-CV-0141, 2014 WL 3858398, at
*2 (W.D.N.Y. Aug. 1, 2014) (holding that the failure to name the individual defendants against
whom the plaintiff intends to assert claims makes it “infeasible for the Court to determine which
of the individual officers mentioned in the body of the complaint should be deemed to be
defendants to which claims”).
“If people are not also named in the caption of the [ ] complaint, they will not be
defendants in the case.” Whitley v. Krinser, No. 06-CV-0575, 2007 WL 2375814, at *1
(W.D.N.Y. Aug. 15, 2007); see also Robles v. Armstrong, No. 3:03-CV-1634, 2006 WL 752857,
at *1 n.1 (D. Conn. Mar. 17, 2006) (“The plaintiff refers to John Doe/Jane Doe of the
Correctional Managed Health Care Program and John Doe/Jane Doe Members of the
Revitalization Committee in the body of the amended complaint. Rule 10(a) of the Federal
Rules of Civil Procedure requires that all defendants be listed in the caption of the complaint.

11

Because the John and Jane Does are not listed in the caption of the amended complaint, they are
not defendants and the court does not consider claims against them.”).
In this instance, while Plaintiff claims he was “gang assaulted” on June 4, 2023, by
Lieutenant Sheriff Deputy Jarvis and “4 to 6” Deputies, whereby his tooth was knocked out and
another one was chipped, the aforementioned individuals are not identified as defendants in the
caption of the complaint or the list of parties. Thus, the Court will not construe the complaint to
assert an excessive force claim against these individuals. See Gosier v. Paolozzi, No. 9:23-CV1135 (GTS/MJK), 2024 WL 340776, at *2 (N.D.N.Y. Jan. 30, 2024). 7
For the same reason, the Court will not construe the complaint to include any claims or
cause of actions against other private individuals referenced in the body of the complaint, Eric
Jerscske or Judge Doran, as they are not identified as defendants in the caption of the complaint
or list of parties. 8

7

Because better pleading could cure this deficiency, the Court recommends granting Plaintiff
leave to amend.

8

The Court notes however, insofar as Plaintiff seeks to impose liability on his attorney based on
the allegations in the complaint, such claims are not plausible because attorneys, whether court
appointed or privately retained, are generally not state actors for purposes of Section 1983. See
Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981). Regardless, Section 1983 claims related to
grand jury proceeding are not plausible. See supra note 7 and accompanying text. Moreover,
insofar as Plaintiff seeks to impose liability on Judge Doran based on the allegations in the
complaint, judges are entitled to absolute immunity for actions relating to the exercise of their
judicial functions. See Mireless v. Waco, 502 U.S. 9, 9-10 (1991). This is true however
erroneous an act may have been, and however injurious its consequences were to the plaintiff.
Young v. Selsky, 41 F.3d 47, 51 (2d Cir. 1994); see also Stump v. Sparkman, 435 U.S. 349, 357
(1978) (“A judge will not be deprived of immunity because the action he took was in error, was
done maliciously, or was in excess of his authority; rather, he will be subject to liability only
when he has acted in the clear absence of all jurisdiction.”). This immunity applies to state court
judges who are sued in federal court pursuant to Section 1983. Pizzolato v. Baer, 551 F. Supp.
355, 356 (S.D.N.Y. 1982), aff’d sub nom. Pizzolato v. City of New York, 742 F.2d 1430 (2d Cir.
1983).
12

D.

Injunctive and Declaratory Relief

As noted, Plaintiff seeks injunctive and declaratory relief. Among other things, Plaintiff
asks the Court to issue a “preliminary and permanent injunction ordering” DA Fitzpatrick and
ADA Maloy “to drop the indictment and free me immediately” and “cease their unlawful
imprisonment against Paul.” (Dkt. No. 6 at 9; Dkt. No. 1 at 4.)
However, the Supreme Court has established that habeas relief is the exclusive remedy in
federal court for a state prisoner seeking a release from custody. See Preiser v. Rodriguez, 411
U.S. 475, 500 (1973) (holding that when a prisoner is challenging “the very fact or duration of
his physical imprisonment, and the relief he seeks is a determination that he is entitled to
immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ
of habeas corpus.”).
Moreover, notwithstanding the deficiencies identified above, any claims seeking
equitable relief likely would be subject to dismissal under abstention principles because it would
require the Court to intervene in a state-court criminal proceeding. See, e.g., Sprint Commc’ns,
Inc. v. Jacobs, 571 U.S. 69, 73 (2013); see, e.g., Haskell v. Cuomo, No. 20-CV-3965, 2021 WL
861802, at *3 (E.D.N.Y. Mar. 8, 2021) (“[I]nsofar as Plaintiff seeks to have this Court dismiss
the indictments against him, this Court cannot intervene in his state criminal proceedings.”);
Henderson v. Fludd, No. 19-CV-2675, 2019 WL 4306376, at *3 (E.D.N.Y. Sept. 11, 2019)
(dismissing the claims “insofar as plaintiff seeks injunctive relief relating to his on-going state
court criminal prosecution.”).
V.

OPPORTUNITY TO AMEND
Generally, before the Court dismisses a pro se complaint or any part of the complaint sua

sponte, the Court should afford the plaintiff the opportunity to amend at least once; however,

13

leave to re-plead may be denied where any amendment would be futile. Ruffolo v. Oppenheimer
& Co., 987 F.2d 129, 131 (2d Cir. 1993). Futility is present when 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).
Upon review, and with due regard for Plaintiff’s status as a pro se litigant, Plaintiff’s
complaint is subject to dismissal pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) for
failure to state a claim upon which relief may be granted. In light of his pro se status, the Court
recommends that Plaintiff be afforded the opportunity to file an amended complaint.
Notwithstanding the recommendation that each of the named defendants be dismissed
with prejudice, the Court cannot say at this early stage of the litigation that Plaintiff would be
unable to amend his complaint to state a viable Section 1983 claim related to the alleged June 4,
2023, gang assault. Thus, the Court recommends providing Plaintiff the opportunity to amend
his complaint against the appropriate defendants.
If the District Court adopts this recommendation, and Plaintiff chooses to amend the
complaint, Plaintiff must provide a short and plain statement of the relevant facts supporting his
claims against each defendant named in the amended complaint. If Plaintiff does not know the
name of a defendant, he may refer to the that individual as “John Doe” or “Jane Doe” in both the
caption, list of parties, and body of the amended complaint. To the greatest extent possible,
Plaintiff’s amended complaint should describe all relevant facts supporting his case, including
the dates and times, to his best approximation. Plaintiff must also describe how each defendant’s
acts or omissions violated his rights. The amended pleading must comply with Rules 8 and 10 of
the Federal Rules of Civil Procedure. No facts or claims from the original complaint may be

14

incorporated by reference, and piece pleadings are not permitted. Plaintiff must not reassert in
his amended complaint claims that the Court has dismissed with prejudice.
VI.

MOTION FOR COUNSEL
Plaintiff has also moved for the appointment of counsel. (Dkt. No. 3. 9) Plaintiffs

bringing civil actions have no constitutional right to the appointment of counsel. See, e.g.,
United States v. Coven, 662 F.2d 162, 176 (2d Cir. 1981). However, the court may request an
attorney to represent an indigent party. See 28 U.S.C. § 1915(e)(1). Courts cannot utilize a
bright-line test in determining whether counsel should be appointed on behalf of an indigent
party. See Hendricks v. Coughlin, 114 F.3d 390, 392-93 (2d Cir. 1997). Instead, a number of
factors must be carefully considered by the court in ruling upon such a motion:
[The Court] should first determine whether the indigent’s position
seems likely to be of substance. If the claim meets this threshold
requirement, the court should then consider the 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.
Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994) (quoting Hodge v.
Police Officers, 802 F.2d 58, 61 (2d Cir. 1986)) (internal quotation marks omitted). This is not
to say that all, or indeed any, of these factors are controlling in a particular case. Rather, each
case must be decided on its own facts. See Velasquez v. O’Keefe, 899 F. Supp. 972, 974
(N.D.N.Y. 1995) (citing Hodge, 802 F.2d at 621). The Court must consider the issue of
appointment carefully because “every assignment of a volunteer lawyer to an undeserving client

9

Plaintiff states he has made repeated efforts to obtain a lawyer, and he “attached” the letters to
the motion. However, no letters are attached. (Dkt. No. 3.)
15

deprives society of a volunteer lawyer available for a deserving cause.” Cooper v. A. Sargenti
Co., Inc., 877 F.2d 170, 172 (2d Cir. 1989).
At this juncture, the Court has found that the complaint fails to state a claim upon which
relief may be granted. Consequently, until plaintiff files an amended complaint that the Court
accepts for service, the Court cannot make the necessary assessment of plaintiff’s claims under
the standards promulgated by Hendricks. Therefore, Plaintiff’s motion for appointment of
counsel is denied without prejudice to renew. Any renewed motion for counsel must be
accompanied by documentation that substantiates his efforts to obtain counsel from the public
and private sector.
VII.

CONCLUSION
Accordingly, it is hereby,
ORDERED that Plaintiff’s IFP application (Dkt. No. 6) is GRANTED, 10 and it is

further
ORDERED that Plaintiff’s motion for appointment of counsel (Dkt. No. 3) is DENIED
WITHOUT PREJUDICE; and it is further
RECOMMENDED that Plaintiff’s complaint (Dkt. No. 1) be DISMISSED WITH
PREJUDICE AND WITHOUT LEAVE TO AMEND as against defendants Onondaga
County District Attorney’s Office, William Fitzpatrick, and Shea Maloy pursuant to 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A; and it is further
RECOMMENDED that Onondaga County District Attorney’s Office, William
Fitzpatrick, and Shea Maloy be TERMINATED as defendants; and it is further

10

Plaintiff is reminded that, although the application to proceed in IFP has been granted, he will
still be required to pay fees that he may incur in this action, including copying and/or witness
fees.
16

RECOMMENDED that Plaintiff be granted leave to file an amended complaint
consistent with the foregoing recommendations; and it is further
RECOMMENDED that if the District Court adopts this Order and ReportRecommendation, Plaintiff be permitted thirty (30) days from the filing date of the District
Court’s Order to file an amended complaint and that if Plaintiff fails to file an amended
complaint within the time allowed and without requesting an extension of time to do so, this case
be CLOSED without further order of the Court; and it is further
ORDERED that the Clerk serve a copy of this Order and Report-Recommendation on
Plaintiff, along with a copy of the unpublished decisions cited herein in accordance with the
Second Circuit’s decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file
written objections to the foregoing report. 11 Such objections shall be filed with the Clerk of the
Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing
Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72, 6(a).
IT IS SO ORDERED.
Dated: February 6, 2024
Syracuse, New York

11

If you are proceeding pro se and are served with this Order and Report-Recommendation by
mail, three additional days will be added to the fourteen-day period, meaning that you have
seventeen days from the date the Order and Report-Recommendation was mailed to you to serve
and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a
Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day
that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
17

Cash v. Bernstein, Not Reported in F.Supp.2d (2010)
2010 WL 5185047

2010 WL 5185047
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
David J. CASH, Plaintiff,
v.
BERNSTEIN, MD, Defendant.
No. 09 Civ.1922(BSJ)(HBP).
|
Oct. 26, 2010.

REPORT AND RECOMMENDATION 1
1

At the time the action was originally filed,
the Honorable Leonard B. Sand, United States
District Judge, granted plaintiff's application for in
forma pauperis status based on plaintiff's ex parte
submission (Docket Item 1). Although the present
application seeking to revoke plaintiff's in forma
pauperis status is non-dispositive, I address it by
way of a report and recommendation to eliminate
any appearance of a conflict between the decision
of a district judge and that of a magistrate judge.

PITMAN, United States Magistrate Judge.
*1 TO THE HONORABLE BARBARA S. JONES, United
States District Judge,
I. Introduction
By notice of motion dated March 4, 2010 (Docket Item 11),
defendant moves pursuant to 28 U.S.C. § 1915(g) to revoke
plaintiff's in forma pauperis (“IFP”) status on the ground that
plaintiff has previously had at least three Section 1983 actions
dismissed as frivolous, malicious or failing to state a claim
upon which relief could be granted, and has not shown that he
is in imminent danger of serious physical injury. Defendant
further seeks an order directing that the action be dismissed
unless plaintiff pays the full filing fee within thirty (30) days.
For the reasons set forth below, I respectfully recommend that
defendant's motion be granted.
II. Facts

Plaintiff, a sentenced inmate in the custody of the New
York State Department of Correctional Services, commenced
this action on or about January 12, 2009 by submitting his
complaint to the Court's Pro Se office. Plaintiff alleges, in
pertinent part, that he has “a non-healing ulcer that is gane
green [sic ]” and that defendant Bernstein “did not want
to treat the ulcer right” (Complaint, dated March 3, 3009
(Docket Item 2) (“Compl.”), at 3).
The action was originally commenced against two defendants
—Dr. Bernstein and Dr. Finkelstein. The action was dismissed
as to Dr. Finkelstein because the complaint contained no
allegations whatsoever concerning Dr. Finkelstein (Order
dated February 18, 2010 (Docket Item 9)).
On March 4, 2010, the sole remaining defendant—Dr.
Bernstein—filed the current motion. Plaintiff failed to submit
a response. Accordingly, on August 20, 2010, I issued an
Order advising plaintiff that if he wished to oppose the
motion, he must submit his opposition by September 15, 2010
and that after that date I would consider the motion fully
submitted and ripe for decision (Order dated August 20, 2010
(Docket Item 15)). The only submission plaintiff has made
in response to my Order is a multi-part form issued by the
New York State Department of Correctional Services entitled
“Disbursement or Refund Request.” 2 By this form, plaintiff
appears to request that the New York State Department of
Correctional Services pay the filing fee for this action. The
form is marked “Denied.”
2

Plaintiff sent this form directly to my chambers,
and it has not been docketed by the Clerk of the
Court. The form will be docketed at the time this
Report and Recommendation is issued.

III. Analysis
28 U.S.C. § 1915 permits an indigent litigant to commence
an action in a federal court without prepayment of the filing
fee that would ordinarily be charged. Although an indigent,
incarcerated individual need not prepay the filing fee at the
time at the time of filing, he must subsequently pay the fee,
to the extent he is able to do so, through periodic withdrawals
from his inmate accounts. 28 U.S.C. § 1915(b); Harris v.
City of New York, 607 F.3d 18, 21 (2d Cir.2010). To prevent
abuse of the judicial system by inmates, paragraph (g) of
this provision denies incarcerated individuals the right to
proceed without prepayment of the filing fee if they have
repeatedly filed meritless actions, unless such an individual
shows that he or she is in imminent danger of serious

© 2024 Thomson Reuters. No claim to original U.S. Government Works.

1

Cash v. Bernstein, Not Reported in F.Supp.2d (2010)
2010 WL 5185047

physical injury. See Ortiz v. McBride, 380 F.3d 649, 658 (2d
Cir.2004) (“[T]he purpose of the PLRA ... was plainly to
curtail what Congress perceived to be inmate abuses of the
judicial process.”); Nicholas v. Tucker, 114 F.3d 17, 19 (2d
Cir.1997). Specifically, paragraph (g) provides:

*2 In no event shall a prisoner bring
a civil action or appeal a judgment
in a civil action or proceeding under
this section if the prisoner has, on
3 or more prior occasions, while
incarcerated or detained in any facility,
brought an action or appeal in a court
of the United States that was dismissed
on the grounds that it is frivolous,
malicious, or fails to state a claim upon
which relief may be granted, unless the
prisoner is under imminent danger of
serious physical injury.

28 U.S.C. § 1915(g).
If an inmate plaintiff seeks to avoid prepayment of the filing
fee by alleging imminent danger of serious physical injury,
there must be a nexus between the serious physical injury
asserted and the claims alleged. Pettus v. Morgenthau, 554
F.3d 293, 298 (2d Cir.2009).
Section 1915(g) clearly prevents plaintiff from proceeding
in this action without prepayment of the filing fee.
The memorandum submitted by defendant establishes that
plaintiff has had his IFP status revoked on at least four prior
occasions as a result of his repeatedly filing meritless actions.
• In 2005, plaintiff commenced an action in the United
States District Court for the Northern District of New
York seeking to have his infected leg amputated.
Nelson 3 v. Lee, No. 9:05–CV–1096 (NAM)(DEP), 2007
WL 4333776 (N.D.N.Y. Dec. 5, 2007). In that matter,
the Honorable Norman A. Mordue, Chief United States
District Judge, accepted and adopted the Report and
Recommendation of the Honorable David E. Peebles,
United States Magistrate Judge, that plaintiff had
brought three or more prior actions that had been
dismissed for failure to state a claim and that plaintiff's
IFP status should, therefore, be revoked. 2007 WL
4333776 at *1–*2.

3

It appears that plaintiff uses the names David
J. Cash and Dennis Nelson interchangeably. In
his complaint in this matter, plaintiff states that
the Departmental Identification Number, or DIN,
assigned to him by the New York State Department
of Correctional Services (“DOCS”) is 94–B–0694
(Compl. at 7). DOCS inmate account records
submitted by plaintiff in connection with his
application for IFP status indicate that DIN 94–
B–0694 is assigned to Dennis Nelson. In addition,
the DOCS form described in footnote two bears
the docket number of this action, but is signed in
the name of Dennis Nelson and was sent in an
envelope identifying the sender as Dennis Nelson.
A subsequent action has been filed in this Court
in which the plaintiff identifies himself as Dennis
Nelson but lists his DIN as 94–B–0694, the same
DIN used by plaintiff here. Finally, plaintiff has
submitted nothing to controvert the assertion in
defendant's papers that David Cash and Dennis
Nelson are the same person. In light of all these
facts, I conclude that David Cash and Dennis
Nelson are both names used by plaintiff.
• In Nelson v. Nesmith, No. 9:06–CV–1177 (TJM)(DEP),
2008 WL 3836387 (N.D.N.Y. Aug. 13, 2008), plaintiff
again filed an action concerning the medical care
he was receiving for his left leg. The Honorable
Thomas J. McAvoy, United States District Judge,
accepted the Report and Recommendation of Magistrate
Judge Peebles, and revoked plaintiff's IFP status and
dismissed the action on the ground that plaintiff had
previously commenced at least three actions that had
been dismissed on the merits. 2008 WL 3836387 at *1,
*7.
• In Nelson v. Spitzer, No. 9:07–CV–1241 (TJM)
(RFT), 2008 WL 268215 (N.D.N.Y. Jan. 29, 2008),
Judge McAvoy again revoked plaintiff's IFP status
on the ground that plaintiff had commenced three
or more actions that constituted “strikes” under
Section 1915(g) and had not shown an imminent
threat of serious physical injury. 2008 WL 268215
at *1–*2.
• Finally, in Nelson v. Chang, No. 08–CV–1261
(KAM)(LB), 2009 WL 367576 (E.D.N.Y. Feb. 10,
2009), the Honorable Kiyo A. Matsumoto, United

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2

Cash v. Bernstein, Not Reported in F.Supp.2d (2010)
2010 WL 5185047

States District Judge, also found, based on the
cases discussed above, that plaintiff had exhausted
the three strikes permitted by Section 1915(g)
and could not proceed IFP in the absence of a
demonstration of an imminent threat of serious
physical injury. 2009 WL 367576 at *2–*3.
*3 As defendant candidly admits, there is one case in which
plaintiff's leg infection was found to support a finding of an
imminent threat of serious physical injury sufficient to come
within the exception to Section 1915(g). Nelson v. Scoggy,
No. 9:06–CV–1146 (NAM)(DRH), 2008 WL 4401874 at *2
(N.D.N.Y. Sept. 24, 2008). Nevertheless, summary judgment
was subsequently granted for defendants in that case, and
the complaint was dismissed. Judge Mordue concluded that
there was no genuine issue of fact that plaintiff had received
adequate medical care for his leg wound and that the failure
of the leg to heal was the result of plaintiff's own acts of
self-mutilation and interference with the treatment provided.
Nelson v. Scoggy, No. 9:06–CV–1146 (NAM)(DRH), 2009
WL 5216955 at *3–*4 (N.D.N.Y. Dec. 30, 2009). 4
4

Although the form complaint utilized by plaintiff
expressly asks about prior actions involving the
same facts, plaintiff disclosed only the Scoggy
action and expressly denied the existence of any
other actions relating to his imprisonment (Compl.
at 6).

In light of the foregoing, there can be no reasonable dispute
that plaintiff has exceeded the three “strikes” allowed by
Section 1915(g) and that he cannot, therefore, proceed here
without prepaying the filing fee unless he demonstrates
an imminent threat of serious physical injury. Plaintiff has
declined to attempt to make this showing in response to
defendant's motion, and the only suggestion in the record
of serious physical injury is the bare statement in the
complaint that plaintiff “need[s] to go back to a wound speci
[a]list before the gane green [sic ] kills [him]” (Compl. at
5). “However, unsupported, vague, self-serving, conclusory
speculation is not sufficient to show that Plaintiff is, in fact,
in imminent danger of serious physical harm.” Merriweather
v. Reynolds, 586 F.Supp.2d 548, 552 (D.S.C.2008), citing
Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir.2003) and
White v. Colorado, 157 F.3d 1226, 1231–32 (10th Cir.1998);
see also Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir.2003)
(imminent danger exception to Section 1915(g) requires
“specific fact allegations of ongoing serious physical injury,
or of a pattern of misconduct evidencing the likelihood
of imminent serious physical injury”). Given the plaintiff's

history, as set forth in the cases described above, I conclude
that this vague statement is insufficient to support a finding
that plaintiff is in imminent danger of serious physical
injury. 5
5

Plaintiff has sent me several letters describing his
wound and its symptoms in detail, and I have
no doubt that the wound is serious. However, in
granting summary judgment dismissing an action
last year based on the same allegations, Judge
Mordue of the Northern District found that there
was no genuine issue of fact that plaintiff's own
conduct was responsible for the ineffectiveness of
the treatment he was provided:
Furthermore, to the extent that Nelson's medical
treatment was delayed, much of the delay
was due to his own refusal to cooperate with
medical staff and his self-mutilations. Nelson's
actions to thwart the medical treatment of his
wound cannot be construed as interference or
indifference by anyone else.... [T]he medical
treatment Nelson received complied with
constitutional guarantees as it was appropriate,
timely, and delayed only by Nelson's own
actions.
Nelson v. Scoggy, supra, 2009 WL 5216955 at *4.
Given plaintiff's total failure to respond to the
pending motion and his failure to even deny that
he is actively thwarting treatment of his wound, it
would be sheer speculation for me to conclude that
he is in imminent danger of a serious injury as a
result of defendant's conduct.

IV. Conclusion
Accordingly, for all the foregoing reasons, I find that plaintiff
has had three or more prior actions dismissed as being
frivolous, malicious or failing to state a claim and that
plaintiff's in forma pauperis status should, therfore, be
revoked. If your Honor accepts this recommendation, I further
recommend that the action be dismissed unless plaintiff pays
the filing fee in full within thirty (30) days of your Honor's
final resolution of this motion.
V. OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of
the Federal Rules of Civil Procedure, the parties shall have
fourteen (14) days from receipt of this Report to file written
objections. See also Fed.R.Civ.P. 6(a). Such objections (and

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3

Cash v. Bernstein, Not Reported in F.Supp.2d (2010)
2010 WL 5185047

responses thereto) shall be filed with the Clerk of the Court,
with courtesy copies delivered to the Chambers of the
Honorable Barbara S. Jones, United States District Judge,
500 Pearl Street, Room 1920, and to the Chambers of the
undersigned, 500 Pearl Street, Room 750, New York, New
York 10007. Any requests for an extension of time for filing
objections must be directed to Judge Jones. FAILURE TO
OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT
IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE
APPELLATE REVIEW. Thomas v. Arn, 474 U.S. 140, 155
End of Document

(1985); United States v. Male Juvenile, 121 F.3d 34, 38 (2d
Cir.1997); IUE AFL–CIO Pension Fund v. Herrmann, 9 F.3d
1049, 1054 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298,
300 (2d Cir.1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57–
59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237–
38 (2d Cir.1983).
All Citations
Not Reported in F.Supp.2d, 2010 WL 5185047
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© 2024 Thomson Reuters. No claim to original U.S. Government Works.

4

Hudson v. Artuz, Not Reported in F.Supp.2d (1998)
1998 WL 832708

1998 WL 832708
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Theodore HUDSON, Plaintiff,
v.
Christopher ARTUZ, Warden Philip
Coombe, Commissioner Sergeant

By Judge Rakoff's Order dated April 14, 1998, this case was
referred to me for general pretrial purposes and for a Report
and Recommendation on any dispositive motion. Presently
pending is defendants' renewed motion to dismiss. Plaintiff
filed a reply on July 6, 1998. For the reasons discussed
below, plaintiff's complaint is dismissed without prejudice,
and plaintiff is granted leave to replead within thirty (30) days
of the date of the entry of this order.

Ambrosino Doctor Manion Defendants.
No. 95 CIV. 4768(JSR).
|
Nov. 30, 1998.
Attorneys and Law Firms
Mr. Theodore Hudson, Great Meadow Correctional Facility,
Comstock.
Alfred A. Delicata, Esq., Assistant Attorney General, New
York.

MEMORANDUM AND ORDER
BUCHWALD, Magistrate J.
*1 Plaintiff Theodore Hudson filed this pro se action
pursuant to 42 U.S.C. § 1983 on April 26, 1995. Plaintiff's
complaint alleges defendants violated his constitutional rights
while he was an inmate at Green Haven Correctional
Facility. 1 Plaintiff's complaint was dismissed sua sponte by
Judge Thomas P. Griesa on June 26, 1995 pursuant to 28
U.S.C. § 1915(d). On September 26, 1995, the Second Circuit
Court of Appeals vacated the judgment and remanded the case
to the district court for further proceedings.
1

Plaintiff is presently incarcerated at Sullivan
Correctional Facility.

The case was reassigned to Judge Barbara S. Jones on
January 31, 1996. Defendants moved to dismiss the complaint
pursuant to Fed.R.Civ.P. 12(c) on November 25, 1996.
Thereafter, the case was reassigned to Judge Jed S. Rakoff
on February 26, 1997. On February 26, 1998, Judge Rakoff
granted defendants' motion to dismiss, but vacated the
judgment on April 10, 1998 in response to plaintiff's motion
for reconsideration in which plaintiff claimed that he never
received defendants' motion to dismiss.

FACTS
Plaintiff alleges that he was assaulted by four inmates in the
Green Haven Correctional Facility mess hall on March 14,
1995. (Complaint at 4.) He alleges that he was struck with
a pipe and a fork while in the “pop room” between 6:00
p.m. and 6:30 p.m. (Complaint at 4–5.) Plaintiff contends
that the attack left him with 11 stitches in his head, chronic
headaches, nightmares, and pain in his arm, shoulder, and
back. (Id.) Plaintiff also states that Sergeant Ambrosino
“failed to secure [the] area and separate” him from his
attackers. (Reply at 5.) Plaintiff's claim against Warden Artuz
is that he “fail [sic] to qualify as warden.” (Complaint at
4.) Plaintiff names Commissioner Coombes as a defendant,
alleging Coombes “fail [sic] to appoint a qualified warden
over security.” (Amended Complaint at 5.) Plaintiff further
alleges that Dr. Manion refused to give him pain medication.
(Complaint at 5.) Plaintiff seeks to “prevent violent crimes”
and demands $6,000,000 in damages. (Amended Complaint
at 5.)
Defendants moved to dismiss the complaint, arguing that: (1)
the Eleventh Amendment bars suit against state defendants
for money damages; (2) the plaintiff's allegations fail to state
a claim for a constitutional violation; (3) the defendants are
qualifiedly immune from damages; and (4) plaintiff must
exhaust his administrative remedies before bringing this suit.

DISCUSSION
I find that plaintiff's complaint runs afoul of Rules 8 and
10 of the Federal Rules of Civil Procedure and dismiss the
complaint without prejudice and with leave to amend. Federal
Rule 8 requires that a complaint contain “a short and plain
statement of the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). The purpose of this Rule “is to
give fair notice of the claim being asserted so as to permit the

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1

Hudson v. Artuz, Not Reported in F.Supp.2d (1998)
1998 WL 832708

adverse party the opportunity to file a responsive answer [and]
prepare an adequate defense.” Powell v. Marine Midland
Bank, 162 F.R.D. 15, 16 (N.D.N.Y.1995) (quoting Brown v.
Califano, 75 F.R.D. 497, 498 (D.D.C.1977)); see Salahuddin
v. Cuomo, 861 F.2d 40, 42 (2d Cir.1988) (stating that the
“principal function of pleadings under the Federal Rules is to
give the adverse party fair notice of the claim asserted so as
to enable him to answer and prepare for trial”).
*2 Rule 10 of the Federal Rules of Civil Procedure requires,
inter alia, that the allegations in a plaintiff's complaint be
made in numbered paragraphs, each of which should recite,
as far as practicable, only a single set of circumstances.
Moore's Federal Practice, Vol. 2A, ¶ 10.03 (1996). Rule
10 also requires that each claim upon which plaintiff seeks
relief be founded upon a separate transaction or occurrence.
Id. 2 The purpose of Rule 10 is to “provide an easy mode
of identification for referring to a particular paragraph in a
prior pleading.” Sandler v. Capanna, 92 Civ. 4838, 1992 WL
392597, *3 (E.D.Pa. Dec.17, 1992) (citing 5 C. Wright &
A. Miller, Federal Practice and Procedure, § 1323 at 735
(1990)).
2

Rule 10 states:
(b) Paragraphs; Separate Statements. All
averments of claim or defense shall be made in
numbered paragraphs, the contents of each of
which shall be limited as far as practicable to a
statement of a single set of circumstances; and
a paragraph may be referred to by number in all
succeeding pleadings. Each claim founded upon
a separate transaction or occurrence and each
defense other than denials shall be stated in a
separate count or defense whenever a separation
facilitates the clear presentation of the matters set
forth.

A complaint that fails to comply with these pleading rules
“presents far too heavy a burden in terms of defendants'
duty to shape a comprehensive defense and provides no
meaningful basis for the Court to assess the sufficiency of”
a plaintiff's claims. Gonzales v. Wing, 167 F.R.D. 352, 355
(N.D.N.Y.1996). It may therefore be dismissed by the court.
Id.; see also Salahuddin v. Cuomo, 861 F.2d at 42 (“When
a complaint does not comply with the requirement that it
be short and plain, the court has the power to, on its own
initiative, ... dismiss the complaint”). Dismissal, however, is
“usually reserved for those cases in which the complaint is
so confused, ambiguous, vague, or otherwise unintelligible

that its true substance, if any, is well disguised.” Id. In those
cases in which the court dismisses a pro se complaint for
failure to comply with Rule 8, it should give the plaintiff leave
to amend when the complaint states a claim that is on its
face nonfrivolous. Simmons v. Abruzzo, 49 F.3d 83, 87 (2d
Cir.1995).
In determining whether a nonfrivolous claim is stated, the
complaint's allegations are taken as true, and the “complaint
should not be dismissed for failure to state a claim unless
it appears beyond doubt that the plaintiff can prove no set
of facts in support of his claim which would entitle him to
relief.” Conley v.. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99,
2 L.Ed.2d 80 (1957). The complaint of a pro se litigant is to
be liberally construed in his favor when determining whether
he has stated a meritorious claim. See Haines v. Kerner, 404
U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Even if it
is difficult to determine the actual substance of the plaintiff's
complaint, outright dismissal without leave to amend the
complaint is generally disfavored as an abuse of discretion.
See Salahuddin, 861 F.2d at 42–42; see also Doe v. City of
New York, No. 97 Civ. 420, 1997 WL 124214, at *2 (E.D.N.Y.
Mar.12, 1997).
Here, plaintiff's pro se complaint fails to satisfy the
requirements of Federal Rules 8 and 10. The complaint is
often illegible and largely incomprehensible, scattering what
appear to be allegations specific to plaintiff within a forest
of headnotes copied from prior opinions. Defendants have
answered with a boilerplate brief, which is perhaps all a
defendant can do when faced with such a complaint. The
Court is left with an insurmountable burden in attempting to
make a reasoned ruling on such muddled pleadings.
*3 Although plaintiff's complaint is substantially
incomprehensible, it appears to plead at least some claims
that cannot be termed frivolous on their face. For example,
plaintiff clearly alleges that inmates assaulted him and that
Dr. Manion refused to provide him medical attention. He also
appears to assert that Sergeant Ambrosino failed to protect
him from the attack or take steps to prevent future attacks.
(Plaintiff's Reply at 5). It is well established that an inmate's
constitutional rights are violated when prison officials act
with deliberate indifference to his safety or with intent to
cause him harm. Hendricks v. Coughlin, 942 F.2d 109 (2d
Cir.1991). It is similarly well established that an inmate's
constitutional rights are violated when a prison doctor denies
his request for medical care with deliberate indifference to
the inmate's serious medical needs. Estelle v. Gamble, 429

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2

Hudson v. Artuz, Not Reported in F.Supp.2d (1998)
1998 WL 832708

U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Hathaway v.
Coughlin, 37 F.3d 63 (2d Cir.1994), cert. denied, 513 U.S.
1154, 115 S.Ct. 1108, 130 L.Ed.2d 1074 (1995). Although
plaintiff provides few facts to support his allegations, I
disagree with defendants' assertion that outright dismissal is
appropriate because it “appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would
entitle him to relief.” Defendant's Memorandum at 5 (quoting
Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d
80 (1957)).
Because plaintiff's complaint does not comply with Rules 8
and 10, it is hereby dismissed without prejudice, and plaintiff
is granted leave to replead within thirty (30) days of the date
of the entry of this Order. In drafting his second amended
complaint, plaintiff is directed to number each paragraph and
order the paragraphs chronologically, so that each incident in
which he alleges a constitutional violation is described in the
order that it occurred. Plaintiff is also directed to specifically
describe the actions of each defendant that caused plaintiff
End of Document

harm, and to do so in separate paragraphs for each defendant.
Plaintiff's complaint shall contain the facts specific to the
incidents plaintiff alleges occurred, and not any facts relating
to any case that has been decided previously by a court of law.
Plaintiff's complaint shall also contain a clear statement of the
relief he seeks in addition to monetary damages.

CONCLUSION
For the reasons set forth above, plaintiff's complaint is
dismissed without prejudice, and plaintiff is granted leave to
replead within thirty (30) days of the date of the entry of this
Order.
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 1998 WL 832708
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3

Myers v. Wollowitz, Not Reported in F.Supp. (1995)
1995 WL 236245

1995 WL 236245
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
James N. MYERS, Jr., Plaintiff,
v.
Heather WOLLOWITZ, Attorney, Defendant.
No. 95–CV–0272 (TJM) (RWS).
|
April 10, 1995.
Attorneys and Law Firms
James N. Myers, Jr., Troy, NY, pro se.

DECISION AND ORDER
McAVOY, Chief Judge.
I. Background
*1 Presently before this Court is the above-captioned
plaintiff's application to proceed in forma pauperis and civil
rights complaint. Plaintiff has not paid the partial filing fee
required to maintain this action.
For the reasons stated below, plaintiff's complaint is dismissed
pursuant to 28 U.S.C. § 1915(d) and Local Rule 5.4(a) of the
General Rules of this Court as without arguable basis in law.
In his pro se complaint, plaintiff seems to claim that plaintiff
was represented by defendant Wollowitz, a public defender
for the County of Rensselaer, in a County Court proceeding.
Plaintiff alleges that after a criminal proceeding in that Court,
plaintiff was “sentenced to a illegal sentence.” Id. at 2.
Plaintiff contends that due to the ineffective assistance of his
counsel, defendant Wollowitz, his constitutional rights were
violated. For a more complete statement of plaintiff's claims,
reference is made to the entire complaint filed herein.
II. Discussion
Consideration of whether a pro se plaintiff should be
permitted to proceed in forma pauperis is a two-step
process. First, the court must determine whether the plaintiff's
economic status warrants waiver of fees and costs under 28
U.S.C. § 1915(a). If the plaintiff qualifies by economic status,
the court must then consider whether the cause of action

stated in the complaint is frivolous or malicious. Moreman
v. Douglas, 848 F.Supp. 332, 333 (N.D.N.Y.1994) (Scullin,
J.); Potnick v. Eastern State Hosp., 701 F.2d 243, 244 (2d
Cir.1983) (per curiam).
In the present case, upon review of the plaintiff's inmate
account statements, the Court has determined that plaintiff's
financial status qualifies him to file or “commence” this action
in forma pauperis. 28 U.S.C. § 1915(a). Turning to the second
inquiry, a court may “dismiss the proceeding under 28 U.S.C.
§ 1915(d) if the court thereafter determines that ... the action
is frivolous or malicious.” Moreman, 848 F.Supp. at 333
(citation omitted).
In determining whether an action is frivolous, the court
must look to see whether the complaint lacks an arguable
basis either in law or in fact. Neitzke v. Williams, 490
U.S. 319, 325 (1989). Although the court has the duty to
show liberality towards pro se litigants, Nance v. Kelly,
912 F.2d 605, 606 (2d Cir.1990) (per curiam), and extreme
caution should be exercised in ordering sua sponte dismissal
of a pro se complaint before the adverse party has been
served and the parties have had an opportunity to respond,
Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir.1983), there
is a responsibility on the court to determine that a claim is
not frivolous before permitting a plaintiff to proceed with
an action in forma pauperis. Dismissal of frivolous actions
pursuant to 28 U.S.C. § 1915(d) is appropriate to prevent
abuses of the process of the court, Harkins v. Eldredge, 505
F.2d 802, 804 (8th Cir.1974), as well as to discourage the
waste of judicial resources. Neitzke, 490 U.S. at 327. See
generally Moreman, 848 F.Supp. at 334.
*2 42 U.S.C. § 1983 is the vehicle by which individuals
may seek redress for alleged violations of their constitutional
rights. See, e.g., Von Ritter v. Heald, 91–CV–612, 1994 WL
688306, *3, 1994 U.S.Dist. LEXIS 17698, *8–9 (N.D.N.Y.
Nov. 14, 1994) (McAvoy, C.J.). A party may not be held
liable under this section unless it can be established that the
defendant has acted under the color of state law. See, e.g.,
Rounseville v. Zahl, 13 F.3rd 625, 628 (2d Cir.1994) (noting
state action requirement under § 1983); Wise v. Battistoni,
92–Civ–4288, 1992 WL 380914, *1, 1992 U.S.Dist. LEXIS
18864, *2–3 (S.D.N.Y. Dec. 10, 1992) (same) (citations
omitted).
In the present case, the sole defendant named by plaintiff
is the Rensselaer County public defender who apparently
represented plaintiff in the criminal proceeding discussed in

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1

Myers v. Wollowitz, Not Reported in F.Supp. (1995)
1995 WL 236245

his complaint. See Complaint at 2. However, “[i]t is well
settled that an attorney's representation of a party to a court
proceeding does not satisfy the Section 1983 requirement that
the defendant is alleged to have acted under color of state
law....” Wise, 1992 WL 380914 at *1, 1992 U.S.Dist. LEXIS
18864 at *2–3; see also D'Ottavio v. Depetris, 91–Civ–6133,
1991 WL 206278, *1, 1991 U.S.Dist. LEXIS 13526, *1–2
(S.D.N.Y. Sept. 26, 1991).
Since the plaintiff has not alleged any state action with
respect to the Section 1983 claim presently before the Court,
plaintiff's complaint, as presented to this Court, cannot be
supported by any arguable basis in law and must therefore be
dismissed pursuant to 28 U.S.C. § 1915(d). Neitzke, 490 U.S.
at 328.
Accordingly, it is hereby

ORDERED, that leave to proceed or prosecute this action in
forma pauperis is denied, and it is further
ORDERED, that this action is dismissed pursuant to 28
U.S.C. § 1915(d) and Local Rule 5.4(a) of the General Rules
of this Court as lacking any arguable basis in law, and it is
further
ORDERED, that the Clerk serve a copy of this Order on the
plaintiff by regular mail.
I further certify that any appeal from this matter would not be
taken in good faith pursuant to 28 U.S.C. § 1915(a).
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp., 1995 WL 236245

End of Document

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2

Griffith v. Sadri, Not Reported in F.Supp.2d (2009)
2009 WL 2524961

KeyCite Yellow Flag - Negative Treatment
Distinguished by In re Payment Card Interchange Fee and Merchant
Discount Antitrust Litigation, E.D.N.Y., August 30, 2018

2009 WL 2524961
Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
Jeric GRIFFITH, Plaintiff,
v.
Yas SADRI, et al., Defendants.
No. CV-07-4824 (BMC)(LB).
|
Aug. 14, 2009.
Attorneys and Law Firms
Jeric Griffith, Marcy, NY, pro se.
Brian Francolla, Sarah Beth Evans, New York City Law
Department, New York, NY, for Defendants.

ORDER ON REPORT AND RECOMMENDATION
COGAN, District Judge.
*1 This case is before me on plaintiff's objections to the
Report and Recommendation of Magistrate Judge Bloom,
in which she denied plaintiff's motion for leave to amend
his complaint to add a claim for excessive force as well as
to add District Attorney Charles Hynes, the New York City
Police Department (“NYPD”), the City of New York and the
King's County District Attorney's Office as defendants. For
the reasons set forth below, the Report and Recommendation
is adopted and plaintiff's motion to amend the complaint is
denied.
Under Fed.R.Civ.P. 72(b)(3), a “district judge must
determine de novo any part of the magistrate judge's
disposition that has been properly objected to.” A proper
objection requires reference to a specific portion of the
magistrate judge's recommendation; if a party “makes only
conclusory or general objections, or simply reiterates his
original arguments, the Court reviews the Report and
Recommendation only for clear error.” Pall Corp. v. Entegris,
Inc., 249 F.R.D. 48, 51 (E.D.N.Y.2008) (quoting Barratt v.

Joie, No. 96 CIV 0324, 2002 WL 335014, at *1 (S.D.N.Y.
Mar. 4, 2002)). Furthermore, even in a de novo review of
a party's specific objections, the court ordinarily will not
consider “arguments, case law and/or evidentiary material
which could have been, but [were] not, presented to the
magistrate judge in the first instance.” Kennedy v. Adamo, No.
02 CV 01776, 2006 WL 3704784, at *1 (E.D.N.Y. Sept. 1,
2006) (quoting Haynes v. Quality Markets, No. 02-CV-250,
2003 WL 23610575, at *3 (E.D.N.Y. Sept.22, 2003)).

BACKGROUND
Plaintiff filed this pro se case pursuant to 42 U.S.C. § 1983
alleging false arrest and malicious prosecution. The original
complaint states that on February 25, 2006, plaintiff “was
arrested inside the Seventh Day Adventist Church” for a
robbery of a nearby grocery store and describes the grand jury
proceedings and trial. It further alleges that plaintiff suffers
from emotional stress as a result of being held for ten months
at Rikers Island Correctional Facility, awaiting trial, and that
he has suffered pain and mental anguish due to the deliberate
indifference and intentional misconduct of defendants.
Plaintiff's proposed amended complaint seeks to add a cause
of action for excessive force and assault, alleging that he was
“thrown to the ground” and that an officer “placed his hand
on plaintiff's chest to check his heart rate.” The proposed
complaint also seeks to add four additional defendants:
District Attorney Charles J. Hynes, the NYPD, Kings County
District Attorney's Office and the City of New York as
defendants. Defendants opposed the motion to amend on
the grounds that plaintiff's amendments fail to set forth any
cognizable claims.
By Report and Recommendation dated May 19, 2009,
Magistrate Judge Bloom denied plaintiff's motion to amend
his complaint as futile, finding that plaintiff's excessive force
claim is barred by the statute of limitations and does not
“relate back” to any transaction or occurrence alleged in
the original complaint. Magistrate Judge Bloom also denied
plaintiff's motion to add new defendants, finding that (1)
District Attorney Charles Hynes is shielded from liability for
the prosecutorial-related decisions of his subordinates; (2)
the NYPD and Kings County District Attorney's Office are
not separately suable legal entities; and (3) plaintiff failed
to allege a custom, policy or practice sufficient to impose
municipal liability.

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1

Griffith v. Sadri, Not Reported in F.Supp.2d (2009)
2009 WL 2524961

*2 Plaintiff now objects to Magistrate Judge Bloom's Report
and Recommendation. With respect to the excessive force
and assault claim, plaintiff contends that he has had difficulty
amending his complaint as a result of his incarceration.
Plaintiff further maintains that the excessive force claim is
timely because his interrogatory responses indicate that he
has suffered “physical, emotional and psychological injuries”
and because he described the “assault by officer defendants”
in his deposition. Both submissions, plaintiff contends, put
defendants on notice before the expiration of the statute of
limitations, of the excessive force claim.
Plaintiff evidently concedes that the New York Police
Department and the Kings County District Attorney's Office
are non-suable entities but reiterates his contention that
District Attorney Hynes is a principal and subject to the
alleged criminal acts of his agents or subordinates. Plaintiff
asserts that the cognizable official custom, policy or practice
of the City of New York is to prosecute “anyone who is
indicted whether there is real probable cause or not.”
Defendants have not opposed plaintiff's objections.

DISCUSSION
I. Standard for Futility of Amendment
The Magistrate Judge correctly recognized that, pursuant to
Rule 15(a)(2), leave to amend should be freely given, but the
court may deny leave to amend in cases of futility. Foman v.
Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Van
Buskirk v. N.Y. Times Co., 325 F.3d 87, 91-92 (2d Cir.2003).
Case law within the Second Circuit is clear that if, upon
amendment, a Rule 12(b) motion would have to be granted,
the proposed amendment should be deemed futile. See Holt
v. Katy Industries, Inc., 71 F.R.D. 424, 427 (S.D.N.Y.1976)
(“amendments to a complaint may be denied if the proposed
changes fail to state a claim on which relief can be granted.”)
(citing Vine v. Beneficial Finance Co., 374 F.2d 627, 636-7
(2d Cir.1967); Billy Baxter, Inc. v. The Coca-Cola Co., et
al., 47 F.R.D. 345, 346 (S.D.N.Y.1969), aff'd, 431 F.2d 183
(2d Cir.1970)); Ganthier v. North Shore-Long Island Jewish
Health Sys., 298 F.Supp.2d 342, 350 (E.D.N.Y.2004) (An
amendment is futile “if the proposed amended complaint
would be subject to ‘immediate dismissal’ for failure to
state a claim or on some other ground.”) (quoting Jones v.
New York Div. of Military & Naval Affairs, 166 F.3d 45, 55
(2d Cir.1999)). To hold otherwise would simply engender
needless duplicate litigation, first on the motion to amend

and then again on a motion to dismiss. Thus, where the
proposed amendment is attacked as futile because it is legally
insufficient, the Court should determine futility, in the first
instance, by assessing the legal sufficiency of the proposed
amendment. For this analysis, a pro se litigant's complaint
must be read liberally and the “freely given” leave to amend
standard must be applied with particular force. Pangburn v.
Culbertson, 200 F.3d 275, 283 (2d Cir.1999).
II. Plaintiff's New Claim for Excessive Force and Assault
*3 Plaintiff's new claim for excessive force and assault
is futile, as it would be subject to immediate dismissal as
untimely. The amended complaint alleges that during the
February 25, 2006 arrest, plaintiff was thrown to the floor and
that an officer “placed his hand on plaintiff's chest to check
his heart rate.” The Magistrate Judge correctly recognized that
the applicable three year statute of limitations for an excessive
force claim accrues at the time of the use of force. Perez v.
Cuomo, No. 09-CV-1109 (SLT), 2009 WL 1046137, at *6
(E.D.N.Y. Apr.17, 2009). The limitations period for filing an
excessive force claim based on plaintiff's February 25, 2006
arrest expired on February 25, 2009. The Eastern District
of New York Pro Se Office received plaintiff's proposed
amended complaint in May 2009-more than two months after
the statute of limitations had run. Plaintiff's excessive force
claim is thus barred by the statute of limitations.
To resist this result, plaintiff, who is currently incarcerated,
argues that he has had inadequate access to a typewriter and a
law library and that he has been moved “from one jail to the
next” over the past few months. In effect, plaintiff argues for
an equitable toll of the statute of limitations.
However, equitable tolling is permitted only “in rare and
exceptional circumstances, in which a party is prevented
in some extraordinary way from exercising his rights.”
Haghpassand v. Reuters America Inc., 120 Fed. Appx.
859, 862, No. 04-2463, 2005 WL 195092 (2d Cir. Jan.28,
2005); see also Walker v. Jastremski, 430 F.3d 560
(2d Cir.2005) (declining to equitably toll the limitations
period for a prisoner's § 1983 claim because the case
did not present “extraordinary circumstances”). Plaintiff's
described difficulties do not constitute the “extraordinary
circumstances” sufficient to justify equitable tolling. See, e.g.,
Cross v. McGinnis, No. 05 Civ. 504, 2006 WL 1788955,
at *5-6 (S.D.N.Y. June 28, 2006) (“A petitioner's restricted
access to library facilities does not merit equitable tolling”);
Asencio v. Senkowski, 00 Civ. 6418, 2000 WL 1760908, at
*1-2 (S.D.N.Y. Nov.30, 2000) (“hardships associated with

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2

Griffith v. Sadri, Not Reported in F.Supp.2d (2009)
2009 WL 2524961

prison conditions do not constitute the rare circumstances
under which equitable tolling is granted.”).
A slightly closer question is plaintiff's objection-supported
by the letter annexed to his objection as Exhibit B-that he
inquired of the Clerk of the Court of how he could amend
his complaint on February 4, 2009, before the expiration of
the statute of limitations. 1 That inquiry, however, does not
extend the limitations period for two reasons.
1

As noted above, ordinarily a district court will
refuse to consider evidentiary material that could
have been, but was not presented to the Magistrate
Judge in the first instance. Paddington Partners v.
Bouchard, 34 F.3d 1132, 1137-38 (2d Cir.1994).
However, I will assume, for purposes of addressing
these objections, that since he is appearing
pro se, plaintiff was unaware of the statute of
limitations until the Magistrate issued her Report
and Recommendation. Thus, plaintiff would not
have presented the letter sent to the Clerk of the
Court, in the first instance, to Magistrate Judge
Bloom.

First, it is well-settled that unfamiliarity with the law or
legal procedure is not sufficiently extraordinary to toll the
statute of limitations. Fennel v. Artuz, 14 F.Supp.2d 374,
377 (S.D.N.Y.1997) (excuse of “being uneducated and not
familiar with legal research and legal procedures” did not
warrant equitable tolling because it could be made by
“virtually all inmates.”).
*4 Second-and perhaps more probative in this equitable
balancing-any plaintiff seeking to toll the statute of limitations
must show reasonable diligence in asserting his claims,
in addition to exceptional or extraordinary circumstances.
Plaintiff waited over a year and eight months after his
complaint had been filed and after the close of discovery to
first inquire about amending his complaint. He waited two
years and eleven months after the incident complained of to
first allege the excessive use of force and he waited over
three months after his inquiry to the Clerk of the Court to file
his motion to amend the complaint. Plaintiff did not exercise
reasonable diligence.
Magistrate Judge Bloom's determination that plaintiff's
excessive force claim does not “relate back” to his earlier
complaint is also correct. The relation back test, of course, is
not one of temporal proximity but rather of adequate notice to

defendants. Rosenberg v. Martin, 478 F.2d 520 (2d Cir.1975).
Thus, it is of no moment that the arrest complained of in the
original complaint occurred at the same time as the newly
alleged excessive force. As the Second Circuit has previously
held in a similar context, when, even under the most liberal
reading, “not a word in the complaint even suggested a claim
of physical assault,” the defendants cannot be said to have
been on notice of a claim for excessive force. Id . The
operational facts set forth in the original complaint assert an
illegal arrest and prosecution for lack of probable cause. There
is not the slightest intimation that the arrest was conducted
with excessive force.
Plaintiff's objection that his interrogatory responses and
deposition testimony put defendant's on adequate notice of the
excessive force claim is unavailing. As the Magistrate Judge
recognized, the inquiry under Rule 15 is whether adequate
notice has been given to the opposing party in the original
pleading. Slayton v. American Express Corp, 460 F.3d 215,
228 (2d Cir.2006) (emphasis added).
Therefore, plaintiff's motion to amend the complaint to add
an excessive force cause of action is denied as futile.
III. Plaintiff's Proposed New Defendants
The Report and Recommendation correctly concludes that, as
a matter of law, District Attorney Charles J. Hynes, the New
York Police Department, Kings County District Attorney's
Office and the City of New York cannot be sued in this action.
Plaintiff's objections are reiterations of his original argument
and have not sufficiently countered or cured any of the legal
infirmities identified in the Report and Recommendation.
Allowing plaintiff to add these defendants at this time would
be futile. Therefore, plaintiff's motion to amend his complaint
is denied.

CONCLUSION
The Report and Recommendation is adopted and plaintiff's
motion to amend his complaint is denied.
SO ORDERED.
JERIC GRIFFITH, Plaintiff,
-against-

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3

Griffith v. Sadri, Not Reported in F.Supp.2d (2009)
2009 WL 2524961

ASSISTANT DISTRICT ATTORNEY SADRI; POLICE
OFFICER (PO) FREDDY LOPEZ; PO KATHY PAPPAS;
PO MATHEW GALLAGER; PO JIANYUE GUO; PO
FURIA; SERGEANT DANIEL HEANEY; SERGEANT
CHRIS CORREA; DETECTIVE KEITH MANGAN; MS.
AMY DORSEY; PO ERIC MERIZALDE; LIEUTENANT
SCHLOEMAN; PO BAEZ; PO RYAN; PO ZAJAC; PO
PERAZZO; CAPTAIN SCOLARO; CAPTAIN NIKAS;
SERGEANT JESKE; DETECTIVE CALLAGHAN; PO
CHADWICK; PO FAZAL; and PO GARCIA, individually
and in their official capacities, Defendants.
REPORT & RECOMMENDATION
DENYING PLAINTIFF'S MOTION
TO AMEND HIS COMPLAINT
BLOOM, United States Magistrate Judge.
*5 Plaintiff filed this pro se case on November 16, 2007,
pursuant to 42 U.S.C. § 1983, alleging defendants falsely
arrested and imprisoned him, maliciously prosecuted him
and defamed him. 1 Complaint; Document 1. Plaintiff names
Assistant District Attorney Sadri and a number of officers
from the 78th Precinct as defendants. 2 Complaint at 1.
Defendants filed answers, documents 17, 22, 44, and the
parties conducted discovery. 3 Plaintiff now moves to amend
the complaint to include an excessive force claim as well as
to add District Attorney Charles Hynes, the New York City
Police Department (“NYPD”), the City of New York and
the King's County District Attorney's Office as defendants. 4
Proposed Amended Complaint; Document 94-2. Defendants
oppose plaintiff's motion to amend. Document 95. Defendants
served and filed their motion for summary judgment on May
11, 2009. Document 96. For the reasons stated below, it is
respectfully recommended pursuant to 28 U.S.C. § 636(b) that
plaintiff's motion to amend should be denied.
1

Plaintiff's complaint also alleges that defendants
violated his 4th, 6th and 14th Amendment rights.
Complaint at 6.

2

By Order dated November 28, 2007, the claims
against defendants Small, Poteau and Parish were
dismissed. Document 3.

3

The Court's December 19, 2008 Order extended the
deadline for the parties to complete discovery to
February 5, 2009. By endorsed Order dated March

9, 2009, the deadline was extended to March 30,
2009 for the limited purpose of providing plaintiff
with his criminal trial transcript. Documents 76, 87.
4

Plaintiff summarily states that his 4th, 5th, 8th
and 14th Amendment rights were violated without
any additional supporting statements. Proposed
Complaint at 10.

DISCUSSION
I. Standard for Motion to Amend
Under Rule 15(a), “[a] party may amend its pleading once as
a matter of course ... before being served with a responsive
pleading.... In all other cases, a party may amend its pleading
only with the opposing party's written consent or the court's
leave. The court should freely give leave when justice so
requires.” Fed.R.Civ.P. 15(a). A motion for leave to amend
should be denied only for good reason such as “undue
delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, futility of amendment,
etc.” Ruotolo v. City of New York, 514 F.3d 184, 191 (2d
Cir.2008) (quoting Foman v. Davis, 371 U.S. 178, 182, 83
S.Ct. 227, 9 L.Ed.2d 222 (U.S.1962)). “An amendment to a
pleading is futile if the proposed claim could not withstand a
motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).” Lucente
v. Int'l Bus. Machs. Corp., 310 F.3d 243, 258 (2d Cir.2002);
see also Crippen v. Town of Hempstead, No. 07-CV-3478,
2009 U.S. Dist. LEXIS 24820, 2009 WL 803117 (E.D.N.Y.
Mar. 25, 2009) (“The standard for futility with respect to a
motion to amend under Rule 15 is identical to the standard
for a Rule 12(b) (6) motion to dismiss-namely, the court must
determine whether the allegations in the complaint state a
claim upon which relief can be granted.”) Moreover, a pro
se plaintiff's complaint must be read liberally and interpreted
as raising the strongest arguments it suggests. See McEachin
v. McGuinnis, 357 F.3d 197, 200 (2d Cir.2004); Daniel v.
Safir, 175 F.Supp.2d 474, 479 (E.D.N.Y.2001) (citing Boddie
v. Schnieder, 105 F.3d 857, 860 (2d Cir.1997)) (pro se
complaints are liberally construed and held to less stringent
standards than formal pleadings drafted by lawyers.)
II. Plaintiff's Proposed Excessive Force Claim
*6 Plaintiff's proposed amended complaint alleges that on
February 25, 2006 he was thrown on the floor and that an
officer “placed his hand on plaintiff's chest to check his heart

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4

Griffith v. Sadri, Not Reported in F.Supp.2d (2009)
2009 WL 2524961

rate.” Proposed Amended Complaint at 6. Defendants argue
that plaintiff's motion for leave to amend should be denied
as futile because plaintiff's excessive force claim would be
barred by the applicable statute of limitations. Document
95 at 1-2. The Court agrees. See Diallo v. Williams, No.
04 Civ. 4556(SHS)(DF), 2006 WL 156158, 2 (S.D.N.Y.
January 20, 2006) (denying plaintiff's motion to amend to
include 42 U.S.C § 1983 claims as futile where the claims
would be barred by the statute of limitations); see also
Mackensworth v. S.S. Am. Merchant, 28 F.3d 246, 251 (2d
Cir.1994) (finding denial of leave to amend complaint proper
on futility grounds because proposed claim would have been
barred by the statute of limitations). The three year statute of
limitations for an excessive force claim accrues at the time
the use of force occurred. Jefferson v. Kelly, No. 06-CV-6616
(NGG)(LB), 2008 WL 1840767 at *3 (E.D.N.Y. Apr. 22,
2008) (citing Singleton v. City of New York, 632 F.2d 185,
191 (2d Cir.1980)); see also Cotto v. Pabon, No. 07 Civ.
7656(AJP), 2008 WL 4962986, 10 (S.D.N.Y. November 20,
2008) (plaintiff's excessive force claim accrued at the time
of his arrest). The three year statute of limitations period
for plaintiff's proposed excessive force claim based on the
February 25, 2006 incident expired on February 25, 2009.
Therefore plaintiff's excessive force claim is untimely.
However, where an amended complaint asserts a claim that
would otherwise be untimely, it may “relate back” to the
earlier complaint if it “arises out of the same transaction or
occurrence as the one that the plaintiff originally alleged.”
Ruiz v. Suffolk County Sheriff's Dept, No. 03 CV 3545(DLI)
(ETB), 2008 WL 4516222, 5 (E.D.N.Y. October 2, 2008)
(citing Wilson v. Fairchild Republic Co., 143 F.3d 733,
738 (2d Cir.1998)). The central inquiry under Rule 15 is
“whether adequate notice of the matters raised in the amended
pleading has been given to the opposing party within the
statute of limitations by the general fact situation alleged
in the original pleading.” Id. (quoting Slayton v. American
Express Corp., 460 F.3d 215, 228 (2d Cir.2006)) (internal
citations omitted). Plaintiff's original complaint states that
“plaintiff was arrested inside the Seventh Day Adventist
church” and describes the grand jury proceedings and trial.
Liberally construing plaintiff's complaint, plaintiff fails to
allege any facts regarding excessive force that would put
defendants on notice of an excessive force claim. See Fleming
v. Department of Justice, No. 90 Civ. 0896(CPS), 1993
WL 16117, 2 (E.D.N.Y. January 20, 1993) (although “the
proffered amendment allege[s] facts that occurred on the same
day[ ] as the alleged facts made in the original complaint,
there is no ‘factual nexus' between the new claims of ...

excessive force and ... illegal searches.”) Furthermore, “an
amendment will not relate back if it sets forth a new set
of operational facts; it can only make more specific what
has already been alleged.” Lederman v. Giuliani, No. 98
Civ.2024(LMM), 2002 WL 31357810, 2 (S.D.N.Y. October
17, 2002) (citing Pruiss v. Bosse, 912 F.Supp. 104, 106
(S.D.N.Y.1996)). Plaintiff's allegation that some unnamed
defendant threw him to the floor and touched his chest
are new facts that do not relate back to plaintiff's original
false arrest, malicious prosecution and defamation claims.
Therefore, plaintiff's motion to amend to add a proposed
excessive force claim should be denied as futile.
III. Plaintiff's Proposed New Defendants
*7 Plaintiff's proposed amended complaint alleges that the
“custom of being able to prosecute a defendant just because
the grand jury indicted is a flawed one.” Proposed Complaint
at 9. Plaintiff states, “Sadri was able to get a grand jury to
indict even though no proof leaning toward plaintiffs guilt
was provided and even though defendant Sadri knew she
could not succeed in her prosecution, she was able to continue
the prosecution following a custom and policy allowed and
practiced by her supervisor[']s office[ ] and the City of New
York.” Id. Plaintiff further alleges that “District Attorney
Charles J. Hynes is responsible for the wrong doings of
those employed in his office and the Kings County District
Attorney's Office is liable for his actions and failure to train
and supervise his underlings.” Id. Plaintiff also alleges that
the NYPD is responsible and liable for its employees' actions
and defendant New York City is responsible for its agencies.
Id. at 7.
A. District Attorney Charles J. Hynes
In lawsuits brought pursuant to 42 U.S.C. § 1983, prosecutors
are absolutely immune from liability for prosecutorial actions
that are “intimately associated with the judicial phase of
the criminal process.” Van De Kamp et al. v. Goldstein,
555 U.S. ----, 129 S.Ct. 855, 859-60, 172 L.Ed.2d 706
(Jan. 26, 2009) (quoting Imbler v. Pachtman, 424 U.S. 409,
430, 96 S.Ct. 984, 47 L.Ed.2d 128(1976)). While plaintiff
states that District Attorney Charles J. Hynes is responsible
for the wrong doings of those employed in his office and
that his constitutional rights were violated when defendant
Sadri prosecuted him knowing she could not succeed in
her prosecution, absolute immunity shields a “prosecutor's
decision to bring an indictment, whether he has probable
cause or not.” Coleman v. City of New York, No. 08 Civ.
5276(DLI)(LB), 2009 WL 909742, 2 (E.D.N.Y. April 1,

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5

Griffith v. Sadri, Not Reported in F.Supp.2d (2009)
2009 WL 2524961

2009) (citing Buckley v. Fitzsimmons, 509 U.S. 259, 274
n. 5, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993)); see also
Pinaud v. County of Suffolk, 52 F.3d 1139, 1149 (2d Cir.1995)
(holding district attorneys absolutely immune from claim
for malicious prosecution and presentation of false evidence
to the grand jury); Ying Jing Gan v. City of New York,
996 F.2d 522, 530 (2d Cir.1993) (the decision whether or
not to commence a prosecution is protected by absolute
prosecutorial immunity). “To the extent the supervision
or policies concern the prosecutorial decisions for which
the ADAs have absolute immunity, then those derivative
allegations against supervisors must also be dismissed on the
ground that the supervising district attorneys have absolute
immunity for the prosecution-related decisions of their
subordinates and because Section 1983 supervisory liability
depends upon the existence of an underlying constitutional
violation.” Bodie v. Morgenthau, 342 F.Supp.2d 193, 205
(S.D.N.Y.2004); see also Pinaud v. County of Suffolk. 798
F.Supp. 913, 918 (E.D.N.Y.1992), aff'd in part, rev'd in
part, 52 F.3d 1139 (2d Cir.1995) (“[W]hen the actions of a
prosecutor are subject to absolute immunity, a supervising
prosecuting attorney is also covered by that immunity.”)
Plaintiff's proposed complaint fails to state a claim against
District Attorney Charles J. Hynes and therefore plaintiff's
motion to amend should be denied as futile.
B. New York Police Department and the Kings County
District Attorney's Office
*8 While under Monell v. Dep't of Social Services, 436
U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), a
municipality may be subject to suit pursuant to 42 U.S .C.
§ 1983, a police department, which is an administrative arm
of a municipality, does not have a legal identity separate and
apart from the municipality and cannot sue or be sued, Hall v.
City of White Plains, 185 F.Supp.2d 293, 303 (S.D.N.Y.2002).
See also Jenkins v. City of New York, 478 F.3d 76, 93 n.
19 (2d Cir.2007) (The New York City Police Department
is not a suable entity); Wray v. City of New York, 340
F.Supp.2d 291, 303 (E.D.N.Y.2004) (quoting N.Y.C. Charter
§ 396 (“All actions and proceedings for the recovery of
penalties for the violation of any law shall be brought in
the name of the city of New York and not in that of any
agency, except where otherwise provided by law.”)); Walker
v. U.S. Marshals, No. 08 Civ. 959(JG)(AKT), 2009 WL
261527, 2 (E.D.N.Y. February 4, 2009) (a municipal police
department is not a suable entity “because it is a subunit or agency of the municipal government, which fulfills
the municipality's policing function.”) Similarly, a district
attorney's office is not a separate legal entity capable of being

sued pursuant to § 1983. McCray v. City of New York, Nos. 03
Civ. 9685(DAB), 03 Civ. 9974(DAB), 03 Civ. 10080(DAB),
2007 WL 4352748 at *26 (S.D.N.Y.2007) (citing Michels
v. Greenwood Lake Police Dept., 387 F.Supp.2d 361, 367
(S.D.N.Y.2005)). Therefore, plaintiff's motion to amend his
complaint to add the defendants NYPD and Kings County
District Attorney's Office should be denied as futile.
C. City of New York
In order to state a claim against a municipality or municipal
agency, plaintiff must present evidence that the alleged
deprivation of his constitutional rights was caused by an
official custom, policy or practice. See Monell, 436 U.S.
658 at 691-94, 98 S.Ct. 2018, 56 L.Ed.2d 611. Plaintiff
alleges that the grand jury system is a “flawed one” and
defendant Sadri was able to “succeed in her prosecution,” and
obtain an indictment without proof after “following a custom
and policy allowed and practiced by her supervisor [']s.”
However, these conclusory statements fail to allege a custom,
policy or practice that deprived him of his constitutional
rights. Therefore, plaintiff's motion to amend the complaint
to add the City of New York should be denied. See Davis v.
City of New York, No. 07 Civ. 1395(RPP), 2008 WL 2511734
at *6 (S.D.N.Y. June 19, 2008) (holding that plaintiff failed
to sufficiently plead municipal liability because “conclusory
allegations that a municipality failed to train and supervise
its employees is insufficient to state a Monell claim”); see
also Oparaji v. City of New York, No. 96 Civ. 6233, 1997 WL
139160 at *3 (E.D.N.Y. Mar.21, 1997) (granting defendant's
motion to dismiss because plaintiff's Monell claim “[did]
not contain a single fact in support of [the] conclusory
allegation”).
Moreover, even if plaintiff's proposed complaint alleged a
constitutional violation, a single incident of unconstitutional
activity is insufficient to infer a custom, policy or practice
as required by Monell to impose municipal liability.
Santiago v. C.O. Campisi Shield, F.Supp.2d 665, 675-676
(S.D.N.Y.2000) (citing City of Oklahoma City v. Turtle, 471
U.S. 808, 823-24, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985);
Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir.1993)).
Plaintiff's proposed amended complaint fails to state a claim
against the City of New York and therefore his motion to
amend should be denied as futile.

CONCLUSION

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6

Griffith v. Sadri, Not Reported in F.Supp.2d (2009)
2009 WL 2524961

*9 Accordingly, plaintiff's motion to amend the complaint
should be denied.

FILING OF OBJECTIONS TO THIS
REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the
Fed.R.Civ.P., the parties shall have ten days from service of
this Report to file written objectives. See also Fed.R.Civ.P.
6. Such objections (and any responses to objections) shall
be filed with the Clerk of the Court. Any request for an
End of Document

extension of time to file objections must be made within
the ten-day period. Failure to file a timely objection to this
Report generally waives any further judicial review. Marcella
v. Capital Dist. Phyisicians' Health Plan, Inc., 293 F.3d 42
(2d Cir.2002); Small v. Sec'y of Health and Human Services,
892 F.2d 15 (2d Cir.1989); see Thomas v. Arn, 474 U.S. 140,
106 S.Ct. 466, 88 L.Ed.2d 435 (1985).
All Citations
Not Reported in F.Supp.2d, 2009 WL 2524961

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7

Adames v. County of Suffolk Court, Not Reported in Fed. Supp. (2019)
2019 WL 2107261

2019 WL 2107261
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Willi ADAMES, Plaintiff,
v.
The COUNTY OF SUFFOLK COURT; Detective
Arnold Hillian, PID: 3362, Det. 1404; Timothy D. Sini,
District Attorney of Suffolk County; Suffolk County
Jail; and Suffolk County DA's Office, Defendants.
18-CV-4069(JS)(SIL)
|
Signed 05/14/2019
Attorneys and Law Firms
For Plaintiff: Willi Adames, pro se, A#046775189, Bergen
County Jail, E-44202, 160 South River Street, Hackensack,
New Jersey 07601.
For Defendants: No appearances.

MEMORANDUM & ORDER
Joanna Seybert, U.S.D.J.
*1 On July 12, 2018, incarcerated pro se plaintiff Willi
Adames (“Plaintiff”) filed a Complaint (see, D.E. 1) in this
Court pursuant to 42 U.S.C. § 1983 (“Section 1983”) against
the County of Suffolk Court (“County Court”), Detective
Arnold Hillian (“Det. Hillian”), Suffolk County District
Attorney Timothy D. Sini (“D.A. Sini”), the Suffolk County
Jail (the “Jail”), and the Suffolk County DA's Office (the
“DA's Office” and collectively, “Defendants”), accompanied
by an application to proceed in forma pauperis, (IFP Mot.,
D.E. 2). On October 1, 2018, Plaintiff filed an application for
the appointment of pro bono counsel to represent him in this
case. (Mot., D.E. 10.)
Upon review of the declaration in support of the application
to proceed in forma pauperis, the Court finds that Plaintiff
is qualified to commence this action without prepayment
of the filing fee. See 28 U.S.C. §§ 1914(a); 1915(a)(1).
Therefore, Plaintiff's request to proceed in forma pauperis is
GRANTED. However, for the reasons that follow, Plaintiff's
Section 1983 claims against the County Court, the Jail,
and the DA's Office are DISMISSED WITH PREJUDICE.

Plaintiff's Section 1983 claims against D.A. Sini and Det.
Hillian are DISMISSED WITHOUT PREJUDICE. Given
the dismissal of the Complaint, Plaintiff's application for the
appointment of pro bono counsel is DENIED.

THE COMPLAINT 1
1

The following facts are taken from Plaintiff's
Complaint and are presumed to be true for the
purposes of this Memorandum and Order. Excerpts
from the Complaint as reproduced here exactly
as they appear in the original. Errors in spelling,
punctuation, and grammar have not been corrected
or noted.

Plaintiff's Complaint is submitted on the Court's Section 1983
Complaint form and is brief. The following facts, in their
entirety, are alleged:

I was arrested on 12-16-2017 and I
sat in Riverhead County Jail located
in Suffolk County, New York. My
case was dismissed on 5-2-2018.
Docket # CR-025969-17SU. Log #
2017SU025969. I would like to be
compensated for the time I was
held in Suffolk County Jail for the
false charges I've been accused of.
I've spent 5 months incarcerated for
something that never happened. I've
lost my job, my place of residence
and my reputation. All stemming from
malicious prosecution where I've only
time and time again stood by my
innocents, plus mental health issues.

(Compl. ¶ II.) In the space on the Complaint form that calls
for a description of any claimed injuries, Plaintiff alleges:
“Mental health--experiencing nightmares, depression, can't
sleep, anxiety.” (Compl. ¶ II.A.) Plaintiff also alleges that he
has received “mental health counseling.” (Compl. ¶ II.A.) For
relief, Plaintiff seeks an unspecified sum “for pain suffering
false arrested on going mental health issues. And of course
my reputation as a man and farther.” (Compl. ¶ III.)

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1

Adames v. County of Suffolk Court, Not Reported in Fed. Supp. (2019)
2019 WL 2107261

DISCUSSION
I. In Forma Pauperis Application
Upon review of Plaintiff's declarations in support of his
application to proceed in forma pauperis, the Court finds
that 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
*2 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 relief. See 28 U.S.C. §§ 1915(e)
(2)(B)(i)-(iii), 1915A(b). 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.” Id. at 678; accord Wilson v. Merrill Lynch & Co.,
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.’ ” Iqbal, 556 U.S. at 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). To
state a claim under Section 1983, a plaintiff must “ ‘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. Claims Against the Jail, the County Court, and the
DA's Office
Plaintiff's Section 1983 claims against the Jail, the County
Court, and DA's Office are not plausible because none of
these entities have independent legal identities. It is wellestablished that “under New York law, departments that are
merely administrative arms of a municipality do not have a
legal identity separate and apart from the municipality and,
therefore, cannot sue or be sued.” Davis v. Lynbrook Police
Dep't, 224 F. Supp. 2d 463, 477 (E.D.N.Y. 2002); Trahan
v. Suffolk Cty. Corr. Fac., 12-CV-4353, 2012 WL 5904730,
*3 (E.D.N.Y. Nov. 26, 2012) (dismissing claims against the
Suffolk County Jail because it “is an administrative arm of
Suffolk County, without an independent legal identity.”); see
also Gollomp v. Spitzer, 568 F.3d 355, 366–67 (2d Cir. 2009)
(“[E]very court to consider the question of whether the New
York State Unified Court System is an arm of the State has
concluded that it is ...”); Woodward v. Office of Dist. Atty.,
689 F. Supp. 2d 655, 658 (S.D.N.Y. 2010) (“[T]he District
Attorney's Office is not a suable entity[.]”). Thus, Plaintiff's
Section 1983 claims against the Jail, the County Court and
the DA's Office are not plausible and are DISMISSED WITH
PREJUDICE pursuant to 28 U.S.C. §§ 1915(e)(2)(b)(ii);
1915A(b). Given Plaintiff's pro se status and affording his
Complaint a liberal construction, the Court has considered
whether Plaintiff has alleged a plausible Section 1983 claim
against the respective municipalities, namely Suffolk County
and New York State, and finds that he has not for the reasons
that follow.

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2

Adames v. County of Suffolk Court, Not Reported in Fed. Supp. (2019)
2019 WL 2107261

1. Claims As Construed Against Suffolk County
*3 It is well-established that a municipality such as Suffolk
County cannot be held liable under § 1983 on a respondeat
superior theory. See Monell v. Dep't of Soc. Servs. of N.Y.C.,
436 U.S. 658, 691, 98 S. Ct. 2018, 2036, 56 L.Ed. 2d 611
(1978); Roe v. City of Waterbury, 542 F.3d 31, 36 (2d
Cir. 2008). To prevail on a Section 1983 claim against a
municipality, a plaintiff must show “that ‘action pursuant to
official municipal policy’ caused the alleged constitutional
injury.” Cash v. Cty. of Erie, 654 F.3d 324, 333 (2d Cir.
2011) (quoting Connick v. Thompson, 131 S. Ct. 1350,
1359, 179 L.Ed. 2d 417 (2011)); see also Monell, 436
U.S. at 690-91. “[L]ocal governments ... may be sued for
constitutional deprivations visited pursuant to governmental
‘custom’ even though such a custom has not received
formal approval through the body's official decisionmaking
channels.” Monell, 436 U.S. at 690-691 (internal citation
omitted).
To establish the existence of a municipal policy or custom,
the plaintiff must allege: (1) the existence of a formal policy
which is officially endorsed by the municipality, see Connick,
131 S. Ct. at 1359; (2) actions taken or decisions made
by municipal policymaking officials, i.e., officials with final
decisionmaking authority, which caused the alleged violation
of the plaintiff's civil rights, see Amnesty Am. v. Town of
W. Hartford, 361 F.3d 113, 126 (2d Cir. 2004); Jeffes v.
Barnes, 208 F.3d 49, 57 (2d Cir. 2000); (3) a practice “so
persistent and widespread as to practically have the force
of law,” Connick, 131 S. Ct. at 1359; see also Green v.
City of N.Y., 465 F.3d 65, 80 (2d Cir. 2006), or that “was
so manifest as to imply the constructive acquiescence of
senior policy-making officials,” Patterson v. Cty. of Oneida,
N.Y., 375 F.3d 206, 226 (2d Cir. 2004) (internal quotation
marks and citations omitted); or (4) that “a policymaking
official exhibit[ed] deliberate indifference to constitutional
deprivations caused by subordinates.” Cash, 654 F.3d at
334 (internal quotation marks and citations omitted); see
also Okin v. Vill. of Cornwall-on-Hudson Police Dep't, 577
F.3d 415, 439 (2d Cir. 2009) (A municipal custom may
be found when “ ‘faced with a pattern of misconduct, [the
municipality] does nothing, compelling the conclusion that
[it] has acquiesced in or tacitly authorized its subordinates'
unlawful actions.’ ”) (quoting Reynolds v. Giuliani, 506 F.3d
183, 192 (2d Cir. 2007) (second alteration in original)).

Here, even affording the pro se Complaint a liberal
construction, there are no factual allegations from which
the Court could reasonably construe a plausible Section
1983 cause of action against Suffolk County. Accordingly,
Plaintiff's Complaint, as construed against Suffolk County
does not allege a plausible Section 1983 claim.

2. Claims as Construed against New York State
Even construing Plaintiff's Section 1983 claims as against
the State of New York, Plaintiff has not alleged a plausible
claim. It is well-established that the Eleventh Amendment
bars Plaintiff's claims seeking exclusively monetary damages
against the State of New York. See Gollomp, 568 F.3d at 366
(“[T]he New York State Unified Court System is an arm of the
State [ ], and is therefore protected by Eleventh Amendment
sovereign immunity”); see also Quiles v. City of N.Y., No.
01–CV–10934, 2002 WL 31886117, at *2 (S.D.N.Y. Dec.
27, 2002) (“[T]he Eleventh Amendment prohibits individuals
from suing the District Attorney's Office, an arm of the
state, for damages under 42 U.S.C. § 1983 arising from
prosecutorial decisions.”) Thus, even when construed as
against the State of New York, Plaintiff has not alleged a
plausible claim for relief.
B. Claims Against Det. Hillian and DA Sini
*4 In order to state a claim for relief under Section
1983 against an individual defendant, a plaintiff must allege
the personal involvement of the defendant in the alleged
constitutional deprivation. Farid v. Elle, 593 F.3d 233, 249 (2d
Cir. 2010). The Supreme Court held in Iqbal that “[b]ecause
vicarious liability is inapplicable to ... [section] 1983 suits, a
plaintiff must plead that each Government-official defendant,
through the official's own individual actions, has violated the
Constitution.” 556 U.S. at 676, 129 S. Ct. at 1948. Thus, a
“plaintiff asserting a Section 1983 claim against a supervisory
official in his individual capacity” must sufficiently plead
that the “supervisor was personally involved in the alleged
constitutional deprivation.” Rivera v. Fischer, 655 F. Supp.
2d 235, 237 (W.D.N.Y. 2009). A complaint based upon a
violation under Section 1983 that does not allege the personal
involvement of a defendant fails as a matter of law and should
be dismissed. Johnson v. Barney, 360 F. App'x 199, 201 (2d
Cir. 2010).
Here, Plaintiff's brief Complaint does not include any factual
allegations sufficient to demonstrate personal involvement

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3

Adames v. County of Suffolk Court, Not Reported in Fed. Supp. (2019)
2019 WL 2107261

by Det. Hillian and DA Sini regarding the events alleged in
the Complaint. To the extent that Plaintiff seeks to impose
liability against DA Sini, it appears that Plaintiff's claim is
based solely on the supervisory position he holds. Wholly
absent, however, are any allegations sufficient to establish any
personal involvement by DA Sini in the conduct of which
Plaintiff complains. A supervisor cannot be liable for damage
under Section 1983 solely by virtue of being a supervisor
because there is no respondeat superior liability under Section
1983. Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003).
Accordingly, because Plaintiff has not alleged any factual
allegations of conduct or inaction by Det. Hillian or DA Sini,
Plaintiff's claims against these Defendants are not plausible
and are DISMISSED WITHOUT PREJUDICE pursuant to 28
U.S.C. §§ 1915(e)(2)(b)(ii); 1915A(b).
C. 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 defects
in Plaintiff's claims against the Jail, the County Court, and the
DA's Office are substantive and would not be cured if afforded
an opportunity to amend, leave to amend the Complaint
against the Jail, the County Court, and the DA's Office is
DENIED. However, in an abundance of caution, Plaintiff is
GRANTED leave to file an Amended Complaint in order to
allege any valid claims he may have against Det. Hillian,
DA Sini, and/or any other proper Defendant. Any Amended
Complaint shall be clearly labeled “Amended Complaint”,
shall bear the same docket number as this Memorandum and
Order (“M&O”), 18-CV-4069(JS)(SIL), and shall be filed
End of Document

within thirty (30) days from the date of this M&O. Plaintiff
is cautioned that an Amended Complaint completely replaces
the original. Therefore, Plaintiff must include any and all
claims against any Defendant(s) he seeks to pursue in the
Amended Complaint.

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
as against the Jail, the County Court, and the DA's Office
for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)
(2)(B)(ii), 1915A(b)(1). Plaintiff is GRANTED LEAVE TO
FILE AN AMENDED COMPLAINT IN ACCORDANCE
WITH THIS M&O WITHIN THIRTY (30) DAYS FROM
THE DATE AT THE BOTTOM OF THIS PAGE. Given
the dismissal of the Complaint, Plaintiff's application for the
appointment of pro bono counsel is DENIED.
*5 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).
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2019 WL 2107261

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4

Moye v. City of New York, Not Reported in F.Supp.2d (2012)
2012 WL 2569085

2012 WL 2569085
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Ronald MOYE, Plaintiff,
v.
The CITY OF NEW YORK; Sgt. Nelson Caban,
P.O. Paul Jeselon, P.O. Samuel Fontanez, P.O.
Edward Simonetti, P.O. Matthew Boorman, P.O.
Frank Papa, P.O. Tawaina O'Neal, P.O. Brennan;
P.O. John; and A.D.A. Dustin Chao, Defendants.
No. 11 Civ. 316(PGG).
|
July 3, 2012.

MEMORANDUM OPINION & ORDER
PAUL G. GARDEPHE, District Judge.
*1 Plaintiff Ronald Moye has brought claims against the
City of New York, former New York County Assistant
District Attorney Dustin Chao, and eight members of the New
York City Police Department (“NYPD”) under 42 U.S.C.
§ 1983 and state law. Moye claims that Chao is liable for
damages under Section 1983 and state law for malicious
prosecution, abuse of process, denial of a fair trial, fabrication
of evidence, conspiracy “to inflict an unconstitutional injury,”
and intentional and negligent infliction of emotional distress.
(Am. Cmplt., Second, Third, Fourth, Fifth, Sixth, Seventh,
and Ninth Claims) Chao has moved to dismiss the Amended
Complaint on grounds of absolute immunity. For the reasons
stated below, Chao's motion to dismiss will be granted.

BACKGROUND
For purposes of deciding Defendant Chao's motion to dismiss,
the Court has assumed that the following facts presented in
the Amended Complaint are true.
I. MOYE'S ARREST
On or about March 12, 2002, at approximately 8:00
p.m., NYPD officers Paul Jeselson and Tawaina O'Neal
were stationed on the rooftop of an apartment building

on the south side of West 118th Street near the corner
of Morningside Avenue conducting nighttime narcotics
surveillance. (Am.Cmplt.¶¶ 19, 22) Plaintiff's car was located
on the north side of West 118th Street, near Manhattan
Avenue. (Id. ¶ 21) Officer Jeselson claimed that he observed
Plaintiff “extend his hand from the driver's side window and
hand a small glassine” to another individual—later arrested
—who, in turn, handed it to an unapprehended customer. (Id.
¶ 20) The Defendant officers moved in and arrested Moye in
the vicinity of 352 West 118th Street. (Am.Cmplt.¶¶ 12, 25)
At the time of the arrest, and later at the 28th Precinct, the
officers searched Moye and his car and found United States
currency, both in Moye's possession and inside the vehicle.
(Id. ¶ 27) The Defendant officers unnecessarily grabbed
Moye, pushed him, and placed excessively tight handcuffs on
him (id. ¶ 30), causing him to suffer bruises to and numbness
in his wrists. (Id. ¶ 32)
Moye was indicted on March 22, 2002, for Criminal
Possession of a Controlled Substance in the Third Degree.
(Am. Cmplt. ¶ 35; Schwartz Decl., Ex. A) Plaintiff alleges that
the police officer defendants “conspired [to give] and gave
false testimony and intentionally placed false evidence before
the grand jury.” 1 (Am.Cmplt.¶ 35)
1

The Amended Complaint does not disclose what
false testimony or other false evidence was laid
before the grand jury. Moreover, there is no
suggestion that Chao was involved in presenting
false testimony or false evidence to the grand jury.

II. MOYE'S FIRST TRIAL
Moye's first trial began on January 14, 2003. (Schwartz Decl.,
Ex. B) A.D.A. Chao introduced photographs at trial which
he claimed showed the position of Plaintiff s car as it was
parked on West 118th Street. (Am.Cmplt.¶ 38) Chao, Officer
Jeselson, and Officer Papa were present when a District
Attorney's office photographer took these photos in June 2002
from the March 12, 2002 observation point. (Id. ¶¶ 41–42,
44) Although the photographs were intended to convey the
vantage point of the officers on the night of the arrest, they did
not replicate the “nighttime conditions.” (Id. ¶ 45) According
to Moye, these photographs nonetheless showed that the
officers could not have seen Plaintiff extend his hand from
the driver's side window and pass a small glassine to another
individual, because the driver's side could not be seen from
the vantage point of the rooftop observation post, even with
binoculars. (Id. ¶¶ 46, 48) At trial, Officer Jeselson admitted

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that “he was not able to see the driver's side of the vehicles in
the photographs.” (Id. ¶ 47) Jeselson nonetheless claimed that
he had been able to see Moye's hand “during the nighttime
observation.” (Id. ¶ 39) The first trial ended in a mistrial, with
the jury unable to reach a verdict. (Id. ¶ 49)
III. MOYE'S SECOND TRIAL
*2 In February 2003, A.D.A. Chao, Officers Brennan
and Jeselson, and D.A's Office photographer Nancy Badger
returned to West 118th Street to take more photographs. (Id.
¶ 53) They repositioned the car on an angle in order to make
it appear that the officers would have been able to see Moye's
hand outside the driver's side window on the night of his
arrest. (Id. ¶¶ 55–60) With the car positioned in this fashion,
Jeselson and Chao instructed Badger to take photographs of
Officer Brennan's hand outside the driver's side window in an
effort to simulate what the officers would have seen that night.
(Id. ¶¶ 60–61) Jeselson and Chao then had Brennan move the
car back to a curbside position “where additional photographs
[were] taken at a wide angle to falsely give the impression that
the close-ups were merely enlargements of the vehicle parked
along the curb.” (Id. ¶ 63)
At Moye's second trial, Chao introduced these new
photographs and elicited testimony from Jeselson in which
he used the photographs to support his claim that he was
able to see Moye's hand from the rooftop observation post.
(Id. ¶¶ 66, 74) However, Badger testified that, in taking
the new photographs, “the defendants moved the vehicle
to an angle where the hand could be visible.” Defendants
then returned the vehicle to its curbside position and took
additional photographs that “falsely give the impression that
the close-ups were merely enlargements of the vehicle parked
along the curb.” (Id. ¶¶ 81–84)
In summation, Moye's lawyer argued that Jeselson had lied
about his observations from the roof and the positioning of
the car in the photographs introduced by the prosecution.

“And if he knew he was going to get away with it when
I say that's the opportunity, you know [defense counsel]
talked about a lot of people losing their jobs about perjuring
themselves, about the integrity of Robert Morgenthau's
office. Well, if Officer Jeselson thought he was going to get
away with it—
“[DEFENSE counsel]: Mr. Chao is vouching for his
witness.
“THE COURT: Overruled.
“[ADA] CHAO: If Officer Jeselson thought he was going
to get away with it with me present, all that talk about firing,
that should be me because I'm prosecuting this case, not
Officer Jeselson.
“[DEFENSE counsel]: That's objectionable vouching for
his witness.
“THE COURT: Overruled.
“[DEFENSE counsel]: Your Honor, he is making himself
an unsworn witness for the credibility of his police officer.
*3 “THE COURT: Overruled.
“[ADA] CHAO: Ladies and gentlemen, Mr. Morgenthau
should fire me if Officer Jeselson thinks he is going to be
able to say that in court, lie to you, when the person who
is standing right next to him on that roof is me. Well, that
lies with me.
“So what's the explanation? If there's no motive, no
opportunity for why Ms. Badger remembers it differently.
Well, there's evidence that you heard the officer was on the
roof. Evidence that you heard I was on the roof also. I have
no other answer other than the fact that she is mistaken....
“[DEFENSE counsel]: He is vouching for his witness using
the pronoun I.

(Id. ¶ 85) In response, A.D.A. Chao argued that Officer
Jeselson had no opportunity to frame the defendant, because
Chao had been present at the observation post:

“THE COURT: Members of the jury, you can accept his
argument as to what happened on the roof. It's his argument
based upon the evidence as he recalls it.”

“[Defense counsel] spoke about people on that roof.
It's in evidence. Officer Jeselson was on that roof, the
photographer Laura Badger was on the roof, and I was on
that roof. Now, if he is directing something improperly, that
is Officer Jeselson, well, it's in front of me.

People v. Move, 52 A.D.3d 1, 5 (1st Dep't 2008); see also
(Am. Cmplt. ¶¶ 87–92.
Moye was convicted at his second trial and sentenced to fourand-a-half to nine years' imprisonment. (Am.Cmplt.¶¶ 13–14)

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IV. THE CHARGES AGAINST MOYE ARE DISMISSED
On appeal, the First Department vacated the conviction in
a 3–2 decision. People v. Move, 52 A.D.3d 1. The First
Department found that “the prosecutor improperly vouched
for his witness and interjected his personal integrity and the
veracity of the District Attorney's office into his summation to
support the credibility of Police Office Jeselson.” Id. at 6. The
New York Court of Appeals agreed that Chao had engaged in
impermissible vouching for his witness, affirmed the reversal
of the conviction, and remanded the case to Supreme Court.
People v. Move, 12 N.Y.3d 743, 744 (2009). After remand,
the New York County District Attorney's Office dismissed the
case on October 21, 2009. (Am.Cmplt.¶¶ 16, 37)

DISCUSSION
I. IMMUNITY
Chao argues that the claims against him must be dismissed
because his actions are protected by absolute immunity. 2
2

Because Moye sues Defendant Chao in his
individual capacity (Am .Cmplt.¶ 9), his claims are
not barred by the Eleventh Amendment. See Ying
Jing Gan v. City of New York, 996 F.2d 522, 529
(2d Cir.1993) (“To the extent that ... a [Section
1983] claim is asserted against a [state official] in
his individual capacity, he may assert privileges of
absolute or qualified immunity but may not assert
immunity under the Eleventh Amendment.”).

Section 1983 “purports to create a damages remedy against
every state official for the violation of any person's federal
constitutional or statutory rights.” Kalina v. Fletcher, 522
U .S. 118, 123 (1997). In order to state a claim under Section
1983, a plaintiff must show that the conduct complained
of was committed by a person or entity acting under color
of state law, and that the conduct deprived a person of
rights, privileges, or immunities secured by the Constitution.
Newton v. City of New York, 566 F.Supp.2d 256, 269–70
(S.D.N.Y.2008) (citing Palmieri v. Lynch, 392 F.3d 73, 78 (2d
Cir.2004)).
“Although section 1983 imposes liability upon every person
who deprives another of a constitutional right under color of
state law, the doctrines of absolute and qualified immunity
shield prosecutors and law enforcement officers from liability
related to their official acts.” Day v. Morgenthau, 909 F.2d

75, 77 (2d Cir.1990). While Section 1983 does not explicitly
provide for such immunity, the Supreme Court and Second
Circuit have ruled that “Congress did not intend § 1983 to
abrogate immunities ‘well grounded in history and reason.’ “
Pinaud v. Cnty. of Suffolk, 52 F.3d 1139, 1147 (2d Cir.1995)
(quoting Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993)).
*4 As the Second Circuit has explained:
Such immunities are of two types: absolute and qualified.
Buckley v. Fitzsimmons, 509 U.S. 259, 268, 113 S.Ct.
2606, 125 L.Ed.2d 209 (1993). Absolute immunity is
reserved for officials who perform “special functions” and
deserve absolute protection from damages liability. Among
these are prosecutors, and persons working under their
direction, when they function as advocates for the state
in circumstances “intimately associated with the judicial
phase of the criminal process.” Imbler v. Pachtman, 424
U.S. at 430–31. See also Hill v. City of New York, 45 F.3d at
660 (extending absolute prosecutorial immunity to persons
acting under the direction of prosecutors in performing
functions closely tied to the judicial process).
By contrast, only qualified immunity applies to law
enforcement officials, including prosecutors, when they
perform investigative functions. Buckley v. Fitzsimmons,
509 U.S. at 273. (“When a prosecutor performs the
investigative functions normally performed by a detective
or police officer, it is neither appropriate nor justifiable
that, for the same act, immunity should protect the one
and not the other.”) (internal quotation marks and citations
omitted); accord Zahrey v. Coffey, 221 F.3d 342, 349 (2d
Cir.2000).
Bernard v. Cnty. of Suffolk, 356 F.3d 495, 502–03 (2d
Cir.2004).
Absolute immunity extends only so far as necessary to protect
the judicial process. Hill v. City of New York, 45 F.3d 653, 660
(2d Cir.1995). Nonetheless,
[t]he doctrine of absolute prosecutorial immunity creates
a formidable obstacle for a plaintiff seeking to maintain a
civil rights action against a district attorney, as it provides
that “prosecutors are absolutely immune from liability
under § 1983 for their conduct in ‘initiating a prosecution
and in presenting the State's case,’ insofar as that conduct
is ‘intimately associated with the judicial phase of the
criminal process.’ “ Burns v. Reed, 500 U.S. 478, 486, 111

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S.Ct. 1934, 1939, 114 L.Ed.2d 547 (1991) (quoting Imbler,
424 U.S. at 430–31, 96 S.Ct. at 995).

their conduct involves the exercise of discretion.” Flagler,
663 F.3d at 546 (citing Kalina, 522 U.S. at 127).

Pinaud, 52 F.3d at 1147. The Court addresses the parameters
of absolute prosecutorial immunity below.

The Supreme Court addressed the question of absolute
immunity for prosecutors in Imbler, where it held that
prosecutors are entitled to absolute immunity for damage suits
under Section 1983 for all acts “intimately associated with the
judicial phase of the criminal process,” including “initiating
a prosecution and ... presenting the State's case [at trial].”
Imbler, 424 U.S. at 430.

A. Legal Standard for Absolute Prosecutorial Immunity
A prosecutor who, as here, is sued in his or her individual
capacity, may assert absolute or qualified immunity as
a defense. Courts may grant a Rule 12(b)(6) motion to
dismiss on grounds of absolute immunity where the facts
establishing the defense appear in the complaint. Deronette
v. City of New York, No. 05 CV 5275(SJ), 2007 WL 951925,
at *4 (E.D.N.Y. Mar. 27, 2007) (citing Hill, 45 F.3d at
663) (absolute immunity may be decided on a Rule 12(b)
(6) motion where facts establishing the defense may be
“gleaned from the complaint”)). Moreover, district courts
are encouraged to determine the applicability of an absolute
immunity defense at the earliest appropriate stage, and
preferably before discovery. 3 Id. (citing Mitchell v. Forsyth,
472 U.S. 511, 526 (1985)); United States v. Colbert, No. 87
Civ. 4789, 1991 WL 183376 at *4 (S.D.N.Y. Sept. 11, 1991).
This approach is appropriate given that “absolute immunity
defeats a suit at the outset, so long as the official's actions
were within the scope of the immunity.” Imbler, 424 U.S. at
419 n. 13. “[T]he official seeking absolute immunity bears
the burden of showing that such immunity is justified for the
function in question.” Buckley, 509 U.S. at 270 (1993) (citing
Burns, 500 U.S. at 486).
3

District courts likewise evaluate the applicability
of absolute immunity before assessing whether a
plaintiff has sufficiently alleged a constitutional
violation. Pinaud, 52 F.3d at 1148 n. 4 (citing
Buckley, 509 U.S. at 261).

*5 Prosecutorial immunity to Section 1983 claims is
grounded in the immunity to tort liability that prosecutors
enjoy under the common law. Flagler v. Trainor, 663 F.3d
543, 546 (2d Cir.2011) That immunity arises from the
“concern that harassment by unfounded litigation would
cause a deflection of the prosecutor's energies from his public
duties, and the possibility that he would shade his decisions
instead of exercising the independence of judgment required
by his public trust.” Id. (citing Imbler, 424 U.S. at 423).
Immunity protects the proper functioning of the prosecutor's
office by insulating the exercise of prosecutorial discretion.
Kalina, 522 U.S. at 125. Prosecutors are therefore “absolutely
immune from suit only when acting as advocates and when

Later, in Buckley, 509 U.S. at 273, the Supreme Court
considered whether the prosecutor defendants were entitled to
absolute immunity for “investigative” work they performed
well before seeking an indictment, involving an effort to
connect the plaintiff to a bootprint left at a murder scene.
Although the Court rejected the prosecutors' claim for
absolute immunity, the Court cautioned that it had

not retreated ... from the principle
that acts undertaken by a prosecutor
preparing for the initiation of judicial
proceedings or for trial, and which
occur in the course of his role
as an advocate for the State, are
entitled to the protections of absolute
immunity. Those acts must include
the professional evaluation of the
evidence assembled by the police
and appropriate preparation for its
presentation at trial or before a grand
jury after a decision to seek an
indictment has been made.

Buckley, 509 U.S. at 273 (internal citations and quotations
omitted).
Whether a prosecutor has absolute immunity for a particular
act thus “depends principally on the nature of the function
performed, not on the office itself.” Ying Jing Gan v. City of
New York, 996 F.2d 522, 530 (2d Cir.1993). “Such functions
include the decision to bring charges against a defendant,
presenting evidence to a grand jury, and the evaluation of
evidence prior to trial.” Johnson v. City of New York, No. 00
CIV 3626(SHS), 2000 WL 1335865, at *2 (S.D.N.Y. Sept.
15, 2000) (citing Kalina, 522 U.S. at 126). Furthermore,
this “application of immunity is not limited to the duties a

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prosecutor performs in the courtroom.” Dory v. Ryan, 25 F.3d
81, 83 (2d Cir.1994) (citing Buckley, 509 U.S. at 272).
*6 “[A] district attorney is [not only] absolutely immune
from civil liability for initiating a prosecution and presenting
the case at trial,” but also “immune for conduct in preparing
for those functions; for example, evaluating and organizing
evidence for presentation at trial or to a grand jury, or
determining which offenses are to be charged.” Hill, 45
F.3d at 661 (citations omitted). Prosecutorial immunity from
Section 1983 damages liability is broadly defined, covering
“virtually all acts, regardless of motivation, associated with
[the prosecutor's] function as an advocate.” Dory, 25 F.3d at
83. The Second Circuit has been “mindful of the Supreme
Court's admonition that ‘the duties of the prosecutor in his
role as advocate for the State involve actions preliminary
to the initiation of a prosecution and actions apart from
the courtroom.... Preparation, both for the initiation of the
criminal process and for a trial, may require the obtaining,
reviewing, and evaluating of evidence.’ “ Barbera v. Smith,
836 F.2d 96, 100 (2d Cir.1987) (quoting Imbler, 424 U.S.
at 431 n. 33); see also Barrett v. United States, 798 F.2d
565, 571 (2d Cir.1986) (“The absolute immunity accorded
to government prosecutors encompasses not only their
conduct of trials but all of their activities that can fairly
be characterized as closely associated with the conduct of
litigation or potential litigation....”)
Because absolute immunity extends broadly to all acts
committed by a prosecutor in his or her role as an advocate, it
protects prosecutors against claims that they conspired to, or
actually presented, fabricated evidence at trial:
absolute immunity protects a prosecutor from § 1983
liability for virtually all acts, regardless of motivation,
associated with his function as an advocate. This would
even include ... allegedly conspiring to present false
evidence at a criminal trial. The fact that such a conspiracy
is certainly not something that is properly within the role
of a prosecutor is immaterial, because “[t]he immunity
attaches to his function, not to the manner in which he
performed it.” Barrett v. United States, 798 F.2d 565, 573
(2d Cir.1986); see also Daloia v. Rose, 849 F.2d 74, 75
(2d Cir.1988) (per curiam ) (holding ... that prosecutor was
immune from § 1983 liability for knowingly presenting
false testimony). As much as the idea of a prosecutor
conspiring to falsify evidence [is disturbing] ... there is
a greater societal goal in protecting the judicial process
by preventing perpetual suits against prosecutors for the

performance of their duties. See Imbler, 424 U.S. at 426–
428.
Dory, 25 F.3d at 83. 4
4

By contrast, discretionary prosecutorial actions that
are not “intimately associated with the judicial
phase of the criminal process” are entitled only to
qualified immunity. See Buckley, 509 U.S. at 270–
75; Burns, 500 U.S. at 491–95. A prosecutor is
“absolutely immune from liability under section
1983 [only] for acts ‘within the scope of [their]
duties in initiating and pursuing a criminal
prosecution.’ “ Day, 909 F.2d at 77 (quoting Imbler,
424 U.S. at 410). Thus, when a prosecutor acts in an
investigative or administrative capacity, absolute
immunity is not available. Hill, 45 F.3d at 661.
For example, immunity is not available when a
prosecutor releases information or evidence to the
media, Buckley, 509 U.S. at 276–78; authorizes or
directs the use of wiretaps, Powers v. Coe, 728 F.2d
97, 103 (2d Cir.1984); or performs the functions
normally performed by the police, such as assisting
in the execution of a search or seizure. See Buckley,
509 U.S. at 273. The Supreme Court has also
withheld absolute immunity for conduct unrelated
to advocacy, such as giving legal advice, Burns,
500 U.S. at 492–96, or acting as a complaining
witness. Kalina, 522 U.S. 118, 129–31; see also
Ying Jing Gan, 996 F.2d at 533 (finding that
prosecutor was not entitled to absolute immunity
where he allegedly exposed a witness to retaliation
and failed to provide adequate protection for the
witness).

Although courts have declined to establish a bright-line
test based on the stage of a criminal proceeding, “absolute
prosecutorial immunity has generally been found in cases
where some type of formal proceeding had been commenced
or was being commenced by the conduct at issue.” Tabor v.
New York City, No. 11 CV 0195 FB, 2012 WL 603561, at
*4 (E.D.N.Y.2012) (citing Barbera v. Smith, 836 F.2d at 99.
In contrast, where formal proceedings have not begun and
the prosecutor is acting in an investigative capacity—such
as by providing the police with legal advice on investigative
techniques—qualified immunity generally applies. Id. While
the Supreme Court has noted that a prosecutor is not
absolutely immune for every action taken after probable
cause has been established, see Buckley, 509 U.S. at 274
n. 5, “the Court's treatment of the issue demonstrates that

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the existence of probable cause with respect to a particular
suspect is a significant factor to be used in evaluating the
advocatory nature of prosecutorial conduct.” Cousin v. Small.
325 F.3d 627, 633 (5th Cir.2003); accord Barbera, 836 F.2d
at 99 (noting “that in each of the cases we have reviewed
where absolute immunity was upheld, some type of formal
proceeding had been commenced or was being commenced
by the challenged acts”); see also DiBlasio v. Novello, 344
F.3d 292, 300–01 (2d Cir.2003) ( “In assessing whether
absolute immunity should attach to a prosecutor ... we have
focused on the timing of the conduct at issue....”) Thus, in
interpreting Buckley, the Second Circuit has distinguished
between “preparing for the presentation of an existing case,”
on the one hand, and attempting to “furnish evidence on which
a prosecution could be based,” on the other hand, with only
the former entitling a prosecutor to absolute immunity. Smith
v. Garretto, 147 F.3d 91, 94 (2d Cir.1998).
*7 In assessing a prosecutor's claim of absolute immunity,
the court employs a “functional approach,” see, e.g., Burns,
500 U.S. at 486, which looks to “the nature of the function
performed, not the identity of the actor who performed it.”
Forrester v. White, 484 U.S. 219, 229 (1988); see also Van de
Kamp v. Goldstein, 555 U.S. 335, 335–336 (2009) (“To decide
whether absolute immunity attaches to a particular kind of
prosecutorial activity, one must take account of ... ‘functional’
considerations”). The court must inquire whether the actions
in question are part of a prosecutor's traditional function
and whether they are closely associated with the judicial
process. Blouin v. Spitzer, 356 F.3d 348, 357 (2d Cir.2004) (a
court must examine the “nature of the function performed”
in assessing whether absolute immunity will attach.); Doe v.
Phillips, 81 F.3d 1204, 1209 (2d Cir.1996).
B. Analysis
1. Malicious Prosecution, Abuse of Process
To the extent that the Amended Complaint seeks to hold
Chao liable for initiating the prosecution of Moye, absolute
immunity is clearly applicable. Shmueli v. City of New
York, 424 F.3d 231, 237 (2d Cir.2005) (“[T]he prosecutor
is shielded from liability for damages for commencing and
pursuing the prosecution, regardless of any allegations that
his actions were undertaken with an improper state of mind or
improper motive.”); see also Hill, 45 F.3d at 660–61 (holding
that prosecutors and those working under their direction are
absolutely immune for claims relating to the initiation of a
prosecution and for conduct before a grand jury). Plaintiff s

federal and state law claims alleging malicious prosecution
and abuse of process will therefore be dismissed. 5
5

Absolute immunity is a defense not only to Section
1983 claims but to related state law claims. See
Shmueli, 424 F.3d at 238 (dismissing Section
1983 and related state law malicious prosecution
claims); Arum v. Miller, 331 F.Supp.2d 99, 112
(E.D.N.Y.2004) (dismissing abuse of process and
civil conspiracy claims on grounds of absolute
prosecutorial immunity); Imbler, 424 U.S. at 424
(same principles require conferral of absolute
immunity for damage claims against prosecutors
under Section 1983 and state law).

2. Creation of Misleading Photographs, Conspiracy to
Present False Evidence at Trial
Moye alleges that Chao, in preparation for Moye's second
trial, returned to West 118th Street and instructed Nancy
Badger—the District Attorney's office photographer—to take
photographs that inaccurately represented the position of
Moye's car on the night of his arrest. Chao then presented
these photographs at the second trial. (Am.Cmplt.¶¶ 38, 40,
50, 50–54, 66–67) Moye alleges that these photographs gave
the false impression that the police in the observation post
would have been able to see Moye's hand outside the driver's
side window. (Id. ¶ 60) Moye further argues that absolute
immunity does not extend to Chao's role in obtaining these
allegedly misleading photographs, because obtaining such
evidence is “not a traditional prosecutorial function” and was
“done for the purpose of misleading the second jury.” (Pltf.
Opp. Br. at 10–11)
Prosecutors' absolute immunity applies “not just for
presentation of testimony,” however, but also to preparatory
conduct “relating to their advocacy.” Dory, 24 F.3d at 83.
The Supreme Court and the Second Circuit have emphasized
that ‘ “the duties of the prosecutor in his role as advocate
for the State involve actions preliminary to the initiation
of a prosecution and actions apart from the courtroom....
Preparation, both for the initiation of the criminal process
and for a trial, may require the obtaining, reviewing, and
evaluating of evidence.’ “ Barbera, 836 F.2d at 100 (quoting
Imbler, 424 U.S. at 431 n. 33); see also Barrett, 798 F.2d
at 571 (“The absolute immunity accorded to government
prosecutors encompasses not only their conduct of trials
but all of their activities that can fairly be characterized as
closely associated with the conduct of litigation or potential
litigation....”).

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*8 Chao obtained the photographs at issue after Moye's first
trial and in preparation for Moye's second trial. Accordingly,
his involvement in obtaining these photographs took place
long after formal criminal proceedings had been commenced.
See Deskovic v. City of Peekskill, Nos. 07–CV–8150 (KMK),
07–CV–9488 (KMK), 2009 WL 2475001, at *10 (S.D.N.Y.
Aug. 13, 2009) (“[i]n assessing how closely connected a
prosecutor's conduct is to the judicial phase of the criminal
process, the timing of the conduct is relevant”) (citing
DiBlasio, 344 F.3d at 300–01).
Furthermore, in directing that these new photographs be
taken, Chao was performing in his role as a prosecutor
preparing for trial: he sought to obtain these visual depictions
of the crime scene in order to strengthen his case. (Am. Cmplt.
¶ 64 (purpose of second set of photographs was “to show
that P.O. Jeselson could see a hand coming out of the car
window on the date of plaintiff s arrest”)). Although Chao
was working with the police, he was acting within his role
“as [an] advocate for the State.” Burns, 500 U.S at 491.
Courts have consistently found absolute immunity applicable
where, as here, a Section 1983 plaintiff is relying on postindictment misconduct by a prosecutor aimed at obtaining
additional evidence to support pending charges at trial. See,
e.g., Deskovic, 2009 WL 2475001, at *5, *11, *13 (plaintiff
contended that A.D.A. had, post-indictment, conspired to
procure false scientific evidence that he later introduced at
trial; granting A.D.A.'s motion to dismiss Section 1983 claims
on absolute immunity grounds, because the A.D.A.'s alleged
misconduct took place after indictment during the “judicial
phase of the criminal process”); Bertuglia v. City of New York,
No. 11 Civ. 2141(JGK), 2012 WL 906958, at *21 (S.D.N.Y.
Mar. 19, 2012) (granting motion to dismiss state law claims
against A.D.A. defendant based on post-indictment evidencegathering activities; absolute immunity applicable because
“the Complaint does not allege facts that create a plausible
inference that [the prosecutor] was not acting as an advocate
seeking to strengthen her case against an indicted defendant”);
Zahrey v. City of New York, No. 98–4546, 2009 WL 54495, at
*30–*31 (S.D.N.Y. Jan. 7, 2009) (granting absolute immunity
to A.D.A. alleged to have engaged in post-indictment effort
to fabricate evidence); KRL v. Moore, 384 F.3d 1105 (9th
Cir.2004) (granting A.D.A. absolute immunity for alleged
misconduct related to his role in obtaining a post-indictment
search warrant seeking evidence to corroborate pending
charges); Cousin v. Small, 325 F.3d 627, 635 (5th Cir.2003)
(granting absolute immunity to A.D.A. accused of fabricating
evidence post-indictment; “at the time of [A.D.A.] Jordan's ...

conversations with Rowell, in which Jordan allegedly told
Rowell to implicate Cousin falsely in the murder and coached
him on how to testify, Jordan was acting as an advocate rather
than as an investigator. The interview was intended to secure
evidence that would be used in the presentation of the state's
case at the pending trial of an already identified suspect,
not to identify a suspect or establish probable cause. Jordan
therefore is entitled to absolute immunity with respect to this
claim.”); see also Peay v. Ajello, 470 F.3d 65, 68 (2d Cir.2006)
(affirming dismissal on absolute immunity grounds of Section
1983 claim brought against Assistant State's Attorney based
on alleged conspiracy to present false evidence at trial); Dory,
25 F.3d at 83 (“absolute immunity protects a prosecutor from
§ 1983 liability for ... allegedly conspiring to present false
evidence at a criminal trial”).
*9 Because Chao is alleged to have obtained the misleading
photographs post-indictment, in preparation for Moye's
second trial, and in an effort to strengthen his case as the
State's advocate, he is entitled to absolute immunity for this
alleged misconduct.
3. Misconduct at Trial
Moye alleges that Chao elicited false testimony from Officer
Jeselson at trial, that he buttressed Jeselson's false testimony
through introduction of the misleading photographs, and that
he then vouched for the truth of Jeselson's testimony in his
summation.
A prosecutor's presentation of false evidence, or subornation
of perjury at trial, is protected by absolute immunity. Jones
v. King, No. 10 Civ. 0897(PKC), 2011 WL 4484360, at *4
(S.D.N.Y. Sept. 28, 2011) (“The claim that [the prosecutor]
‘conspir[ed] to present false evidence at a criminal trial’ is
barred.... The prosecutor enjoys absolute immunity ‘despite
allegations of his “knowing use of perjured testimony....’ “
”) (citations omitted); Bertuglia, 2012 WL 906958, at *23
(prosecutors are entitled to absolute immunity for allegations
that they “coerced and harassed various witnesses into giving
false testimony”); Urrego v. United States, No. 00 CV
1203(CBA), 2005 WL 1263291, at *2 (E.D.N.Y.2005) (“It
is settled law that when a prosecutor presents evidence to
a grand jury and at trial he is acting as an advocate and
entitled to absolute immunity on claims that the evidence
presented was false.”); Johnson v. Scott, No. CV–91–
1467(CPS), 1993 WL 36131, at *2 (E.D.N.Y. Feb. 5, 1993)
(A.D.A. entitled to absolute immunity related to witness
perjury, because this “concern[ed] ... the presentation of the
State's case against the plaintiff); see Imbler, 424 U.S. at

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7

Moye v. City of New York, Not Reported in F.Supp.2d (2012)
2012 WL 2569085

430–31 (granting prosecutors absolute immunity for their
conduct “in presenting the State's case,” including permitting
a fingerprint expert to give false testimony, suppressing
important evidence, and introducing a misleading artist's
sketch into evidence.).
The analysis does not change because Plaintiff alleges a
conspiracy to commit these acts. Shmueli, 424 F.3d at 237–
38 (“principles [of absolute immunity] are not affected
by allegations that improperly motivated prosecutions were
commenced or continued pursuant to a conspiracy”) (citing
Dory, 25 F.3d at 83); Bernard. 356 F.3d at 503; Hill, 45 F.3d
at 659 n. 2 (when the underlying activity at issue is covered
by absolute immunity, the “plaintiff derives no benefit from
alleging a conspiracy”).
Plaintiff also argues that Chao acted outside his prosecutorial
role when he vouched for Jeselson's testimony during
summation. Because a prosecutor's summation is part of
presenting the State's case, courts agree that a prosecutor's
conduct during summation is protected by absolute immunity.
See Robinson v. Rome, No. 11–CV–1411(NGG)(LB), 2011
WL 1541044, at *3 (E.D.N.Y.2011) (finding A.D.A.s immune
from suit for claims related to, inter alia, an improper
summation); Johnson, 1993 WL 36131, at *2 (granting
absolute immunity to prosecutor where plaintiff alleged that
A.D.A. “express [ed] to the jury her opinion as to the truth of
the testimony of her witnesses during her summation”).
End of Document

*10 In sum, to the extent that Moye's claims against Chao
are based on his conduct at trial, those claims are covered by
absolute immunity.

****
The Court concludes that Chao has absolute immunity for
all of Moye's claims, whether based on federal or state law,
and whether founded on theories of malicious prosecution,
abuse of process, denial of a fair trial, fabricated evidence,
conspiracy, or intentional or negligent infliction of emotional
distress.

CONCLUSION
Chao's motion to dismiss is GRANTED. The Clerk of the
Court is directed to terminate the motion (Dkt. No. 23).
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2012 WL 2569085

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8

Rich v. New York, Not Reported in Fed. Supp. (2022)
2022 WL 992885

2022 WL 992885
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Benjamin Samuel RICH, formerly
known as Samuel Guillaume, Plaintiff,
v.
State of NEW YORK, New York City; New
York City Police Department; New York County;
New York County District Attorney's Office;
Detective Michael Miller, Vincent Corrando, John
Passementi, Cyrus Vance, Jr., Shipla Kalra, David
Nasar, and Does 1–100, Inclusive., Defendants.
21 Civ. 3835 (AT)
|
Signed 03/31/2022
Attorneys and Law Firms

inter alia, 42 U.S.C. §§ 1983, 1985, and 1986, the New York
State Constitution, and New York common law. See generally
Compl., ECF No. 1. Before the Court are three motions to
dismiss Plaintiff's complaint pursuant to Rules 12(b)(1) and
12(b)(6) of the Federal Rules of Civil Procedure, brought by
the State, ECF No. 20, the DA Defendants, ECF No. 22, and
the City Defendants, ECF No. 32.
For the reasons stated below, the State's motion to
dismiss is GRANTED, and Plaintiff's claims against the
State are DISMISSED. The DA Defendants’ motion to
dismiss is GRANTED—Plaintiff's claims against Vance
are DISMISSED; and his claims against Kalra and Nasar
are DISMISSED except for Counts 3 and 4, which are
DISMISSED without prejudice to renewal in an amended
complaint. The City Defendants’ motion to dismiss is
DENIED as to Count 4, and GRANTED in all other respects.
Plaintiff's claims against Passamenti, the NYPD, and the City
are DISMISSED; and his claims against Miller and Corrando
are DISMISSED, except for Count 3, which is DISMISSED
without prejudice to renewal in an amended complaint.

Benjamin Samuel Rich, Staten Island, NY, Pro Se.
Gee Won Cha, Julinda A. Dawkins, New York State Office
of the Attorney General, New York, NY, for Defendant State
of New York.
Andrew B. Spears, New York City Law Department, New
York, NY, for Defendants City New York, Michael Miller,
Vincent Corrando, John Passementi.
Patricia Jean Bailey, New York County District Attorney's
Office, New York, NY, for Defendants Cyrus Vance, Jr.,
David Nasar.

ORDER
ANALISA TORRES, District Judge:
*1 This action arises from a 2016 arrest and prosecution
of Plaintiff pro se, Benjamin Samuel Rich, in New York
County. He brings claims against the State of New York (the
“State”); former New York County District Attorney (“DA”)
Cyrus R. Vance, Jr. and two Assistant District Attorneys
(“ADAs”), Shilpa Kalra and David Nasar, (collectively, the
“DA Defendants”); and the City of New York (the “City”),
the New York City Police Department (the “NYPD”), and
NYPD officers Michael Miller, Vincent Corrando, and John
Passementi (collectively, the “City Defendants”), pursuant to,

BACKGROUND 1
1

Unless otherwise stated, the following facts are
taken from the complaint and assumed, for
purposes of this motion, to be true. ATSI Commc'ns,
Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.
2007).

On January 6, 2016, Plaintiff was at the Highline Ballroom
(“the Highline”), a nightclub in Manhattan, as an invited
guest of Wasief Quahtan, a Highline employee. Compl. ¶ 24.
Quahtan and the club owner began arguing over “Quahtan[’s]
[having brought] Plaintiff to the party.” Id. ¶ 25. Security
staff, and an individual named Avery Jackson, asked Plaintiff
to leave. Id. ¶ 26. Plaintiff alleges that he was “forcibly
escorted” from the club, and that Jackson became “belligerent
and aggressive” towards him. Id. ¶ 27. Shortly thereafter, a
shooting occurred outside the Highline. Id. ¶ 28.
Plaintiff believes that Jackson “ran down the street and
jumped into a black sedan ... at the time the shots were fired.”
Id. ¶ 37. He also states that there were “numerous witnesses”
to the shooting, including a “female 911 caller,” who lived
“next door” to the Highline. Id. ¶ 36. In that 911 call, the
witness said that she had seen a “man jump into a black sedan
speeding down the street” after shots were fired. Id. Based

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Rich v. New York, Not Reported in Fed. Supp. (2022)
2022 WL 992885

on this call, Plaintiff believes “it was more likely that it was
[ ] Jackson who fired the shots before jumping into the black
sedan to chase Plaintiff down.” Id. ¶ 37.
*2 The shooting was investigated by Detective Michael
Miller, who interviewed Jackson. Id. ¶¶ 29–30. Jackson told
Miller that he saw Plaintiff go to a car, “pull out a gun, and
shoot in the direction of the Highline,” and that Jackson “ran
back into the club” when shots were fired. Id. ¶¶ 30, 37.
But, Plaintiff alleges that many of Jackson's representations
to Miller contradicted his initial statements to the NYPD
officers who first responded to the shooting, as well as
other eyewitness accounts. See, e.g., ¶¶ 30–32. For instance,
Plaintiff alleges that Jackson told the responding officers
that Plaintiff was “escorted from the club because he was
intoxicated,” and that Plaintiff then “went to his car, [a Rolls
Royce] removed a firearm ... and fired several shots.” Id. ¶¶
31, 46. But, Jackson told Miller that Plaintiff was “forcibly
ejected from the club” after an altercation with its manager,
that Plaintiff was “belligerent,” and threatened that he had a
gun. Id. ¶ 32. Plaintiff also contends that Jackson's statements
were demonstrably false, because surveillance videos showed
that Jackson “was the aggressor towards Plaintiff,” and that
Plaintiff was “calm, peaceful, and cooperative” when escorted
from the club. Id. ¶¶ 32, 41.
Plaintiff alleges that Miller failed to conduct a thorough
and complete investigation of the shooting, because he did
not interview several witnesses, including the 911 caller. Id.
¶¶ 36–37, 39. Plaintiff also suggests that Miller obtained—
but disregarded—surveillance video from the inside and the
outside of the club that would have corroborated Plaintiff's
version of events. See id. ¶¶ 40–43. Plaintiff also complains
that Officer Vincent Corrando, Miller's supervisor, “approved
all [of the] reports written” in the investigation and “should
have notice[d] or known of all the inconsistencies and
contradictory statements” in Miller's reports. Id. ¶ 95. And,
Plaintiff alleges that Officer John Passementi “authorized
DNA tests,” which revealed that the DNA evidence recovered
at the scene “did not match Plaintiff.” Id. ¶ 96.
On January 9, 2016, Miller obtained a search warrant for
Plaintiff's car, based on what Plaintiff contends were “false,
misleading and/or embellished information” in the underlying
affidavits. Id. ¶ 46. The next day, Jackson picked Plaintiff's
mugshot out of a photo lineup. Id. ¶ 92. Plaintiff appears
to argue that this lineup was unduly suggestive, because
his “mugshot had a lighter background than the other
photographs.” Id. ¶ 92. The same day, Miller obtained a

warrant for Plaintiff's arrest for attempted murder, assault,
and weapons possession, and in February obtained additional
search warrants for Plaintiff's cell phone and laptop, allegedly
based, again, on false and misleading statements provided by
Miller and Jackson. Id. ¶¶ 45, 47. According to Plaintiff, no
“physical evidence [ ] tie[d] him to any part of the shooting,”
id. ¶ 81, and the police did not recover a gun or find gunshot
residue in Plaintiff's car, id. ¶ 91.
On January 22, 2016, a grand jury indicted Plaintiff for
second-degree attempted murder, first-degree assault, and
two counts of criminal possession of a weapon. See id. ¶¶
45, 51. On January 27, 2016, Plaintiff was arrested. Id. ¶ 51.
He was incarcerated until February 18, 2016, when he was
released on bail. Id. ¶ 52.
In November 2016, Plaintiff was taken back into custody on
suspicion of witness tampering, after Jackson allegedly made
a “false[ ]” report to the DA's Office that Plaintiff had tried to
contact him. Id. ¶¶ 53, 103. Plaintiff remained in jail until his
trial, which began in June 2017. Id. ¶¶ 54, 64; see also Trial
Tr. at 1, ECF No. 22-3. 2
2

The relevant state court trial transcripts were
submitted by the DA Defendants in their motion
to dismiss. See Trial Tr.; Dismissal Tr., ECF No.
22-4. The Court may take judicial notice of these
transcripts as a matter of public record. See Shmueli
v. City of N.Y., 424 F.3d 231, 233 (2d Cir. 2005).

On March 26, 2016, ADAs Shilpa Kalra and David Nasar
provided surveillance videos from the Highline to Plaintiff's
counsel. Compl. ¶ 64. Plaintiff alleges, however, that the
relevant video showed only “one (1) camera angle [out]
of 14 camera angles.” Id. He alleges that prosecutors did
not provide videos from the thirteen additional camera
angles until a week after trial commenced, even though
these videos were collected from the Highline eighteen
months earlier. Compl. ¶ 64. The trial court accordingly
granted counsel's request to review the additional videos
before conducting Jackson's cross-examination. Trial Tr. at
3. On direct examination, Jackson testified that he did not
participate in escorting Plaintiff out of the club. Id. at 47–48.
*3 On June 12, 2017, prior to Jackson's cross-examination,
Plaintiff's counsel reported to the trial court that Jackson could
be identified in the additional videos based on his clothing. Id.
at 135. Nasar acknowledged that if Jackson was indeed visible
in the videos, he was “doing a bunch of things contrary to

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Rich v. New York, Not Reported in Fed. Supp. (2022)
2022 WL 992885

what he testified about.” Id.; see also id. at 136. The trial court
then determined that Jackson should be questioned, under
oath, outside the jury's presence, about his clothing on the
night in question, and whether he could identify himself on
the videos, among other matters. See id. at 146–50, 152–54.
Jackson was brought in, and warned about perjury. See id. at
154–56. Jackson identified himself on the videos wearing a
jacket and a light-colored shirt. See id. at 156–59. The court
then adjourned the proceedings. See id. at 159. When the
court resumed, Jackson, through counsel, invoked his Fifth
Amendment right against self-incrimination, id. at 176, and
the court declared a mistrial, id. at 186–88.
Plaintiff's counsel then moved to dismiss the indictment
against Plaintiff on two grounds: first, that it was based
on false testimony, and second, because of prosecutorial
misconduct. Compl. ¶ 100. On October 17, 2017, Kalra
consented to dismissal of the indictment on the first ground,
but opposed the assertion of prosecutorial misconduct.
Dismissal Tr. at 12–13, 15–16. The court dismissed the
indictment, but the presiding judge stated he did not “see any
prosecutorial misconduct.” Id. at 16.
On March 12, 2021, over three years after the indictment
was dismissed, Plaintiff commenced this action. Compl.
Defendants move separately to dismiss the claims against
them. ECF Nos. 20, 22, 32. The Court considers each motion
in turn.

DISCUSSION
I. Legal Standard
A. Rule 12(b)(1)
An action should be dismissed pursuant to Rule 12(b)(1)
where it is apparent that the court lacks subject matter
jurisdiction—that is, the statutory or constitutional power
—to adjudicate it. See Fed. R. Civ. P. 12(b)(1); Thomas v.
Metro. Corr. Ctr., No. 09 Civ. 1769, 2010 WL 2507041, at *1
(S.D.N.Y. June 21, 2010). “A plaintiff asserting subject matter
jurisdiction has the burden of proving by a preponderance of
the evidence that it exists.” Makarova v. United States, 201
F.3d 110, 113 (2d Cir. 2000). A district court must consider
a challenge to subject matter jurisdiction before addressing
other grounds for dismissal. Rhulen Agency, Inc. v. Ala. Ins.
Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990).

On a Rule 12(b)(1) motion, the Court must accept all material
factual allegations as true. J.S. ex rel. N.S. v. Attica Cent.
Schs., 386 F.3d 107, 110 (2d Cir. 2004). It may not, however,
“draw inferences ... favorable to [the] plaintiff[ ]” on such
a motion. Id. And, the Court may consider evidence outside
the pleadings to resolve disputed factual issues relating to
jurisdiction. See id.
B. Rule 12(b)(6)
To survive a Rule 12(b)(6) motion to dismiss, “a complaint
must contain sufficient factual matter ... to ‘state a claim to
relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A plaintiff is not required to provide
“detailed factual allegations” in the complaint, but must assert
“more than labels and conclusions.” Twombly, 550 U.S. at
555. The court must accept the allegations in the complaint
as true and draw all reasonable inferences in favor of the
plaintiff. ATSI Commc'ns, Inc., 493 F.3d at 98. On a Rule
12(b)(6) motion, the court may consider only the complaint,
documents attached to the complaint, matters of which a court
can take judicial notice, or documents that the plaintiff knew
about and relied upon. See Chambers v. Time Warner, Inc.,
282 F.3d 147, 153 (2d Cir. 2002).
Additionally, because Plaintiff proceeds pro se, the Court
is obligated to construe his submissions “liberally and
interpret[ ] [them] to raise the strongest arguments they
suggest.” Triestman v. Fed. Bur. of Prisons, 470 F.3d 471, 474
(2d Cir. 2006) (citation omitted). And, on a motion to dismiss,
the Court may appropriately consider a pro se plaintiff's
opposition papers to “supplement or clarify” the allegations in
their complaint. Sommersett v. City of N.Y., No. 09 Civ. 5916,
2011 WL 2565301, at *3 (S.D.N.Y. June 28, 2011) (citation
omitted).
II. Duplicative and Improper Claims
*4 Count 7 of the complaint asserts a claim under 18 U.S.C.
§ 245 for the deprivation of rights under the color of law.
Compl. ¶¶ 148–51. But, no private right of action exists
under this federal criminal statute, and accordingly, Plaintiff
cannot raise a cognizable claim under it. See Corrado v. State
of N.Y. Univ. Stony Brook Police, No. 15 Civ. 7443, 2016
WL 4179946, at *3 (E.D.N.Y. Aug. 5, 2016). Count 7 is,
accordingly, DISMISSED with prejudice.
Further, the Court finds that Count 9 of the complaint—
fraudulent misrepresentation under § 1983, Compl. ¶¶ 157–

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Rich v. New York, Not Reported in Fed. Supp. (2022)
2022 WL 992885

63—is duplicative of Count 4—deprivation of a fair trial
under § 1983, id. ¶¶ 133–37—because both seek redress
for violations of Plaintiff's liberty interests arising from the
alleged “fabrication of evidence by a government officer.” See
Zahrey v. Coffey, 221 F.3d 342, 349–50 (2d Cir. 2000). Count
9 is, accordingly, DISMISSED with prejudice.
Finally, three of Plaintiff's claims—Counts 4, 5, and 6—
include both federal constitutional claims and analogous
state constitutional claims. Compl. ¶¶ 133–47. The New
York State Constitution “provides a private right of action
where remedies are otherwise unavailable at common law or
under § 1983.” Allen v. Antal, 665 F. App'x 9, 13 (2d Cir.
2016). But, where alternative remedies are available under
the federal civil rights statutes, including § 1983, courts must
dismiss the plaintiff's state constitutional claims. Id. Because
§ 1983 provides a remedy for all of Plaintiff's alleged federal
constitutional violations, any analogous state constitutional
claims are duplicative. Accordingly, the state constitutional
claims pleaded in Counts 4, 5, and 6 are DISMISSED with
prejudice.
III. The State's Motion
The State moves to dismiss the complaint under Rule 12(b)
(1), on the ground that the Eleventh Amendment bars
Plaintiff's claims against it by virtue of sovereign immunity.
State Mem. at 3, ECF No. 21. The Court agrees.
The Eleventh Amendment bars federal courts from exercising
jurisdiction over claims against states. U.S. CONST.
AMEND. XI. This extends to a state sued by its own citizens,
see Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 72–73 (2000),
and state agencies, see Welch v. Texas Dep't of Highways
& Pub. Transp., 483 U.S. 468, 480 (1987). There are only
limited exceptions to this rule, none of which are applicable
here.
First, a state may waive its Eleventh Amendment defense. See
Coll. Sav. Bank v. Fla. Prepaid Postsec. Educ. Expense Bd.,
527 U.S. 666, 670 (1999). Here, the State has not explicitly
waived its immunity, or consented to be sued. See State Mem.
at 3. And, by filing a motion to dismiss, rather than an answer
to the complaint, the State cannot be said to have taken actions
inconsistent with an assertion of immunity. Cf. Lapides v. Bd.
of Regents of Univ. Sys. of Ga., 535 U.S. 613, 619 (2002)
(finding waiver of immunity where state removed action to
federal court, then asserted immunity).

Second, Congress may abrogate the states’ immunity from
suit through statute. Kimel, 528 U.S. at 80. But, Congress
has not done so for claims brought under § 1983, Dube v.
State Univ. of N.Y., 900 F.2d 587, 594 (2d Cir. 1990), §
1985, see Robinson v. Allstate Ins. Co., 508 F. App'x 7, 9 (2d
Cir. 2013), or § 1986, Medina v. Cuomo, No. 15 Civ. 1283,
2015 WL 13744627, at *6–7 (N.D.N.Y. Nov. 9, 2015). In the
“absence of [the State's] consent,” accordingly, such claims
are “proscribed by the Eleventh Amendment.” Pennhurst St.
Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); see also
Trotman v. Palisades Interstate Park Comm'n, 557 F.2d 35,
40 (2d Cir. 1977).
*5 Finally, the Eleventh Amendment does not bar a “suit
against a state official when that suit seeks prospective
injunctive relief.” Seminole Tribe of Fla. v. Florida, 517
U.S. 44, 73 (1996); see also Ex parte Young, 209 U.S. 123
(1908). But here, Plaintiff seeks only money damages, and
retrospective declaratory and equitable relief. Compl. § IX.
And, Eleventh Amendment immunity shields states from
claims for money damages, Liner v. Hochul, No. 21 Civ.
11116, 2022 WL 826342, at *1 (S.D.N.Y. Mar. 17, 2022),
and “declaratory relief dealing solely with past violations,”
Medina, 2015 WL 13744627, at *7. Although Plaintiff
demands “affirmative relief necessary to eradicate the effects
of Defendants’ unlawful practices,” see Compl. § IX(B), he
does not allege any present violations of his rights, see id. See
Medina, 2015 WL 13744627, at *7 (noting that “declaratory
relief where there is no present violation, is also barred under
the Eleventh Amendment”). Accordingly, this exception does
not preclude the State's immunity defense in this matter.
Where a defendant is found to have sovereign immunity from
suit, the Court is deprived of subject-matter jurisdiction under
Rule 12(b)(1). McGinty v. New York, 251 F.3d 84, 89, 101
(2d Cir. 2001). Accordingly, because the State is immune
from liability on all of Plaintiff's claims under the Eleventh
Amendment, its motion to dismiss is GRANTED. And,
because amendment would be futile, Plaintiff's claims against
the State are DISMISSED with prejudice to renewal. 3
3

Because the Court concludes that it lacks
jurisdiction over Plaintiff's claims against the State
under Rule 12(b)(1), it need not reach the State's
alternative ground for dismissal, that Plaintiff's
§ 1983 and § 1985 claims must be dismissed
because the State is not a suable “person” within
the meaning of those statutes. State Mem. at 3–4.

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Rich v. New York, Not Reported in Fed. Supp. (2022)
2022 WL 992885

IV. The DA Defendants’ Motion
Plaintiff raises claims against the DA Defendants “in their
individual capacities” 4 arising inter alia under § 1983, §
5

1985, and § 1986, based on three main factual assertions.
See generally Compl. First, Plaintiff alleges that Kalra and
Nasar wrongfully chose to prosecute him, despite the lack of
physical evidence tying him to the shooting. Compl. ¶ 81.
Second, Plaintiff asserts that Kalra and Nasar intentionally
withheld exculpatory surveillance videos until the middle of
his trial, see id. ¶¶ 75–76, 78. Third, Plaintiff alleges that the
“[p]rosecuting [a]ttorneys” “coached” Jackson to give false
testimony to the grand jury that indicted him. Id. ¶¶ 50–51.
4

Plaintiff makes this clarification for the first time
in his opposition papers. ECF No. 28 at 14.
The Court notes that because, as discussed, the
Eleventh Amendment bars suits against states, see
supra at 8–10, when a defendant is sued in his
official capacity, the court treats the suit as one
against the “entity of which an officer is an agent.”
Kentucky v. Graham, 473 U.S. 159, 165–66 (1985)
(quoting Monell v. N.Y.C. Dep't of Soc. Serves,
436 U.S. 658, 690 n.55 (1978)). And, where a
“district attorney or an assistant district attorney
acts as a prosecutor, she is an agent of the State,
and therefore immune from suit in her official
capacity.” D'Alessandro v. City of N.Y., 713 F.
App'x 1, 8 (2d Cir. 2017). Accordingly, any claims
Plaintiff may raise against the DA Defendants in
their “official capacity” would be precluded by
immunity under the Eleventh Amendment. See id.

5

Although Plaintiff asserts that he pleads each
of his claims against “all Defendants,” even
a liberal read of the complaint makes clear
that certain of Plaintiff's claims cannot implicate
the DA Defendants’ conduct, including counts
1 (unreasonable search and seizure); 2 (false
arrest/imprisonment); 11 (personal injury); 12
(property damage) and 13 (negligent hiring,
training, supervision, and discipline of officers).
Compl. ¶¶ 117–27, 168–81. As the Court has
already dismissed Counts 7 and 9, see supra at 7–8,
it only considers Counts 3 (malicious prosecution);
4 (deprivation of fair trial); 5 (conspiracy); 6
(failure to intervene); 8 (abuse of process); 10
(negligent misrepresentation); and 14 (negligent

infliction of emotional distress) against the DA
Defendants.
A. Absolute Immunity
*6 The DA Defendants argue that Plaintiff's claims are
barred by absolute and qualified prosecutorial immunity. DA
Defs. Mem. at 10–12, ECF No. 22-1. To the extent Plaintiff's
claims are predicated on his allegations that Kalra and Nasar
wrongfully chose to prosecute him and withheld allegedly
exculpatory evidence, the Court agrees.

1. Federal Claims
Although § 1983 has no immunities on its face, the Supreme
Court has held that, when Congress initially enacted the
statute, it did not intend to abrogate existing immunities
established at common law. See Imbler v. Pachtman, 424
U.S. 409, 418 (1976). Thus, both absolute and qualified
immunity are applicable defenses to § 1983 claims. See
Bernard v. Cty. of Suffolk, 356 F.3d 495, 502 (2d Cir.
2004). Prosecutors are entitled to “absolute immunity” from
liability when they function as advocates for the state in
circumstances “intimately associated with the judicial phase
of the criminal process.” Imbler, 424 U.S. at 430. But,
prosecutors are entitled only to “qualified immunity” when
they perform “investigative functions” normally undertaken
by a police officer. Buckley v. Fitzsimmons, 509 U.S. 259,
273 (1993). Under the doctrine of qualified immunity, an
official is immune from liability “only when in light of clearly
established law and the information the official possesses, it
was objectively reasonable for him to think that his actions
were lawful.” Hill v. City of N.Y., 45 F.3d 653, 663 (2d Cir.
1995).
Courts employ a “functional approach” to determine the
availability of absolute immunity, looking to “the nature of
the function performed, not the identity of the actor who
performed it.” Buckley, 509 U.S. at 269 (citations omitted).
And, although the party claiming absolute immunity bears the
burden of establishing its applicability, see Doe v. Phillips, 81
F.3d 1204, 1209 (2d Cir. 1996), if the court finds that that the
conduct at issue is covered by absolute immunity, then the
actor is shielded from liability for damages no matter “how[ ]
erroneous the act ... and how[ ] injurious ... its consequences.”
Cleavinger v. Saxner, 474 U.S. 193, 199–200 (1985) (citation
omitted); see also Anilao v. Spota, No. 19 Civ. 3949, 2022
WL 697663, at *4 (2d Cir. Mar. 9, 2022).

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Plaintiff first alleges that Kalra and Nasar improperly chose
to prosecute him, despite a lack of physical evidence tying
him to the crime. Compl. ¶ 81. But, prosecutors are immune
from suit for decisions regarding “whether and when to
prosecute,” Imbler, 424 U.S. at 430–31 n.32–33, even where
they may prosecute an innocent individual, Schmueli, 424
F.3d at 237–39. Kalra and Nasar are, therefore, entitled to
absolute immunity to the extent Plaintiff's claims are based on
their decision to prosecute him. 6
6

Because the Court finds that the DA Defendants are
entitled to absolute immunity on any claims arising
from the withholding of exculpatory evidence, the
Court does not reach their alternative argument that
Plaintiff fails to state a claim for an alleged Brady
violation, see DA Defs. Mem. at 12–15.

Second, Plaintiff alleges that Kalra and Nasar intentionally
withheld exculpatory surveillance videos until the middle
of trial, Compl. ¶¶ 75–76, 78. But again, prosecutors are
entitled to absolute immunity for all decisions taken “in
their prosecutorial capacity, including decisions regarding
which evidence should be disclosed to a criminal defendant.”
Newson v. City of N.Y., No. 16 Civ. 6773, 2019 WL
3997466, at *3 (E.D.N.Y. Aug. 23, 2019). This is true
even where information was deliberately withheld, Ying Li
v. City of New York, 246 F. Supp. 3d 578, 640 (E.D.N.Y.
2017), or where such withholding violated the defendant's
constitutional rights, see Warney v. Monroe Cnty., 587 F.3d
113, 125 (2d Cir. 2009). Accordingly, Kalra and Nasar have
absolute immunity to the extent any of Plaintiff's claims are
predicated on a violation under this factual allegation.
*7 Finally, Plaintiff alleges that the “Prosecuting Attorneys”
coached Jackson to give false testimony to the grand jury,
which then formed the basis for his indictment. Compl. ¶¶
50–51. Prosecutors generally only have qualified immunity
for actions taken before there is probable cause to arrest
a defendant, because they are performing an investigative
function, rather than acting as advocates. See Hill, 45 F.3d
at 661; Buckley, 509 U.S. at 273. And, although “knowingly
presenting evidence” to a grand jury is considered the “core
of a prosecutor's role as an advocate,” Bernard, 356 F.3d
at 503, the Second Circuit has distinguished between a
prosecutor's knowing presentation of false evidence to the
grand jury—which is still entitled to absolute immunity
—from a prosecutor's deliberate fabrication of evidence,
Hill, 45 F.3d at 662–63 (finding that where prosecutor
deliberately manufactured evidence to establish probable

cause for plaintiff's arrest, his conduct was investigatory,
regardless of whether, when the evidence was manufactured,
the prosecutor intended to present it to the grand jury). In
Hill, the Second Circuit also established that “when it may not
be gleaned from the complaint whether the conduct objected
to was performed by the prosecutor in an advocacy or an
investigatory role, the availability of qualified immunity from
claims based on such conduct cannot be decided as a matter
of law on a motion to dismiss.” Id. at 663.
As in Hill, Plaintiff alleges that the prosecutors deliberately
participated in the fabrication of false evidence by coaching
a material witness to give perjured testimony to the grand
jury, so that the jury would return an indictment. Compl.
¶¶ 50–51. Allegations that the prosecution falsified evidence
are distinct from allegations that the prosecution merely
presented evidence they knew to be false. Compare Hill,
45 F.3d at 662–63, with Urrego v. United States, No. 00
Civ. 1203, 2005 WL 1263291, at *2 (E.D.N.Y. May 27,
2005) (prosecutors receive absolute immunity for claims
predicated on “false presentation of evidence to a grand
jury”). And, considering the Court's obligation to liberally
construe Plaintiff's pleadings and afford every reasonable
inference in his favor at this stage, the Court concludes the
DA Defendants have not established that they were acting as
“advocates,” rather than “investigators,” when they engaged
in the challenged conduct. Hill, 45 F.3d at 660 (officials
asserting absolute immunity bear the burden of establishing
it for the action in question). And, accepting the facts in
the complaint as true, the DA Defendants would not be
entitled to even qualified immunity, because it is objectively
unreasonable for them to have knowingly coached a witness
to give false testimony before a grand jury. See Cipolla v.
Cty. of Rensselaer, 129 F. Supp. 2d 436, 456 (N.D.N.Y.
2001) (not “objectively reasonable” to believe presenting or
soliciting perjured testimony did not violate plaintiff's clearly
established rights). Accordingly, to the extent that Counts 3, 4,
5, 6, and 8 are predicated on the claim that the DA Defendants
coached Jackson to give false testimony, they are not entitled
to either absolute or qualified immunity.

2. State Claims
Plaintiff raises state-law claims against the DA Defendants
in Counts 10 and 14 of the complaint. Compl. ¶¶ 164–67,
182–85. As with federal law, under New York law, a district
attorney prosecuting crime is performing a quasi-judicial
function, and, as such, is entitled to absolute immunity.

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Arteaga v. State, 72 N.Y.2d 212, 217 n.1 (N.Y. 1988). But,
unlike federal law, prosecutors are absolutely immune for
official acts in both the prosecution and investigation of
criminal charges. See Moore v. Dormin, 173 Misc. 2d 836,
843, (N.Y. Sup. Ct. 1997), aff'd as modified, 252 A.D.2d 421
(N.Y. App. Div. 1998). A prosecutor does not receive absolute
immunity, however, “when knowingly acting in violation of
law.” Id. As with Plaintiff's federal claims, to the extent his
state law claims against the DA Defendants are predicated
on his allegations that they improperly targeted him for
prosecution or deliberately withheld exculpatory evidence,
the DA Defendants are entitled to absolute immunity. But,
construing Plaintiff's third allegation liberally, he essentially
claims that the prosecutors knowingly acted in violation of
the law by suborning perjury. The Court cannot conclude,
therefore, that the DA Defendants are entitled to absolute
immunity as a matter of state law to the extent Counts 10 and
14 rest on this allegation. 7
7

As noted, the parallel state-law constitutional
claims in Counts 4, 5, and 6 are dismissed with
prejudice. See supra at 8.

B. Time Bar
*8 The DA Defendants argue that Plaintiff's claims are
untimely. DA Defs. Mem. at 6–8. With the exception of
Counts 3 (§ 1983 malicious prosecution) and 4 (§ 1983
deprivation of a fair trial), the Court agrees.

1. Federal Claims
Claims arising under §§ 1983 and 1985, when brought in
this district, are governed by New York's three-year statute of
limitations for personal injury actions, N.Y. C.P.L.R. § 214;
Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002)
(citation omitted); Hernandez-Avila v. Averill, 725 F.2d 25, 27
n.3 (2d Cir. 1984). But, claims under § 1986 have a one-year
statute of limitations, see 42 U.S.C. § 1986. Federal courts
are also obligated to apply New York's tolling rules. Bd. of
Regents of Univ. of the State of N.Y. v. Tomanio, 446 U.S. 478,
483 (1980).
On March 20, 2020, then-Governor Andrew Cuomo issued
Executive Order 202.8, which tolled the statute of limitations
in New York in light of the COVID-19 pandemic. 9
N.Y.C.R.R. § 8.202.8. Subsequent orders extended the tolling
period until November 3, 2020. Exec. Order 202.67 (Oct. 4,

2020). Contrary to the DA Defendants’ assertion, see DA
Defs. Mem. at 7–8, other courts in this district have uniformly
concluded that Executive Order 202.8 applies to federal cases
applying New York's statute of limitations, including for §
1983 claims. See, e.g., Lewis v. Westchester Cnty., No. 20 Civ.
9017, 2021 WL 3932626, at *2 n.3 (S.D.N.Y. Sept. 2, 2021). 8
The Court concludes, therefore, that Executive Order 202.8
tolls the statute of limitations for Plaintiff's §§ 1983 and 1985
claims, which apply New York's three-year limitations period
—but not Plaintiff's § 1986 claims, because the applicable
statute of limitations for that claim is found in the federal
statute itself.
8

The DA Defendants’ reliance on Johnson v.
Fargione is unavailing. In that case, the court
found that the plaintiff's claims, which had expired
weeks before the issuance of Executive Order
202.8, could not “be said to have been tolled”
by that Executive Order, as the time for filing
had already passed and the plaintiff had offered
no excuse for the delay. 20 Civ. 764, 2021 WL
1406683, at *3 (N.D.N.Y. Feb. 17, 2021), report
and recommendation adopted 2021 WL 1404554
(Apr. 14, 2021). Although Johnson is instructive
with respect to how claims that may have expired
before the issuance of Executive Order 202.8 (i.e.,
before March 20, 2020) should be treated, it does
not address the applicability of the Executive Order
to federal claims that, like Plaintiff's, had not yet
expired by that date.

Section 1983 claims based on malicious prosecution or
deprivation of a fair trial accrue when the underlying criminal
action against the plaintiff is “favorably” terminated, rather
than at the time of arrest. Sharp v. Cnty. of Putnam, No.
18 Civ. 780, 2019 WL 2250412, at *4 (S.D.N. Y May
24, 2019); Shabazz v. Kailer, 201 F. Supp. 3d 386, 394
(S.D.N.Y. 2016). The dismissal of an indictment constitutes
the termination of a proceeding. Sharp, 2019 WL 2250412,
at *4–5. Applying these principles, Plaintiff's § 1983 claims
for malicious prosecution (Count 3) and denial of a fair trial
(Count 4) accrued on October 17, 2017, the date the trial
court dismissed the indictment against him. Dismissal Tr. at
5. And, although the statute of limitations would have expired
on October 17, 2020, New York's COVID-19 tolling rule
extended the limitations period until June 2, 2021. 9 Because
Plaintiff commenced this suit on March 12, 2021, Counts 3
and 4 are timely.

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9

Executive Order 202.8 tolled applicable limitations
periods from March 20, 2020 to November 3, 2020.
The order amounted to a “pause” in the limitations
period—that is, during the duration of the toll, the
clock to file [did] not run,” but “[o]nce the toll
end[ed,] the clock resume[d] from where it was
when the toll began, and the plaintiff ha[d] the
rest of his limitations period to file his complaint,”
Johnston v. City of Syracuse, No. 20 Civ. 1497,
2021 WL 3930703, at *6 (N.D.N.Y. Sept. 2, 2021).
Because, as of March 20, 2020, when the clock
was “paused,” Plaintiff had 211 days remaining
before the expiration of the limitations period on
October 17, 2020, the Court calculates 211 days
after November 3, 2020, as the end of the relevant
limitations period when tolled—which is June 2,
2021.

*9 By contrast, a § 1983 abuse-of-process claim accrues
when the criminal process is “set in motion—typically
at arrest—against the plaintiff.” Hadid v. City of N.Y.,
No. 15 Civ. 19, 2015 WL 7734098, at *5 (E.D.N.Y.
Nov. 30, 2015), aff'd 730 F. App'x 68 (2d Cir. 2018).
Because Plaintiff was arrested on January 27, 2016, the
relevant statute of limitations for Count 8, § 1983 abuse
of process, expired on January 27, 2019, and COVID-19
tolling provisions are, therefore, inapplicable. Accordingly,
this claim is DISMISSED with prejudice as untimely.
Section 1985(3) conspiracy claims accrue “at the time of
the events that caused the injury.” Panetta v. Cassel, 20
Civ. 2255, 2020 WL 2521533, at *5 (S.D.N.Y. May 18,
2020). The existence of a conspiracy “does not postpone the
accrual of causes of action arising out of the conspirators’
separate wrongs. It is the wrongful act, not the conspiracy,
which is actionable, whether the act is labelled a tort or a
violation of [federal civil rights statutes].” Singleton v. City
of N.Y., 632 F.2d 185, 192 (2d Cir. 1980) (citation omitted).
As discussed, the single allegation that escapes absolute
immunity—and therefore is the only remaining basis for
Plaintiff's claims against the DA Defendants—is that those
defendants suborned perjury in the grand jury proceedings
by coaching Jackson to give false testimony, resulting in
Plaintiff's indictment and arrest. Plaintiff's § 1985(3) claim—
Count 5 of the complaint—accrued no later than January 27,
2016, the date of his arrest—which again, applying a threeyear statute of limitations untouched by COVID-19 tolling
provisions, renders it untimely. Count 5 is, accordingly,
DISMISSED with prejudice.

Similarly, Count 6, Plaintiff's § 1986 conspiracy claim,
accrued when Plaintiff knew, or had reason to know of the
harm or injury. Young v. Lord & Taylor, LLC, 937 F. Supp. 2d
346, 354 (E.D.N.Y. 2013). Plaintiff knew of the injury by his
arrest date. Applying § 1986’s one-year statute of limitations,
any § 1986 claim Plaintiff brought after January 27, 2017,
is untimely. 10 Accordingly, Count 6 is DISMISSED with
prejudice.
10

Even assuming, arguendo, that Plaintiff would not
have had reason to know of the harm or injury
that was the basis of his Section 1986 claim until
the date the indictment was dismissed (October 17,
2017), the claim would still be time-barred, because
this would only extend the limitations period to
October 17, 2018—nearly three years before the
commencement of this action.

2. State Claims
Counts 10 and 14 of the complaint—both state commonlaw claims—are also time-barred. “Under New York law,
a plaintiff asserting tort claims against the City or its
employees,” as well as against municipal officials like district
attorneys, “must file a notice of claim within [90] days after
the incident giving rise to the claim and commence the action
within a year and [90] days from the date of the incident.”
Brown v. City of N.Y., No. 18 Civ. 3287, 2020 WL 1819880,
at *7 (S.D.N.Y. Apr. 9, 2020) (citing N.Y. Gen. Mun. Law
§§ 50-e(1)(a), 50-i(1)); see also Gonzalez v. City of N.Y., No.
94 Civ. 7377, 1996 WL 227824, *2 (S.D.N.Y. May 3, 1996).
Plaintiff asserts that he filed the requisite notice of claim with
the City on January 16, 2018—720 days after his arrest, and
91 days after the dismissal of the indictment. Compl. ¶ 16.
Plaintiff did not commence this action until March 12, 2021.
See Compl. Therefore, Plaintiff neither timely filed a notice of
claim within 90 days, nor did he commence this lawsuit within
a year and 90 days after the date the indictment was dismissed
—the last date that could possibly serve as the trigger for the
statute of limitations. Failure to comply with the mandatory
notice of claim requirements is a basis for dismissal of a
plaintiff's claims. Warner v. Vill. of Goshen Police Dep't, 256
F. Supp. 2d 171, 175 (S.D.N.Y. 2003). The Court, accordingly,
concludes that Counts 10 and 14 are also time-barred, and
therefore, these claims are DISMISSED with prejudice.
C. Personal Involvement

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*10 Liability under § 1983 must be premised on a
defendant's direct, personal involvement in the alleged
violations. See Tangreti v. Bachmann, 983 F.3d 609, 618 (2d
Cir. 2020). A defendant cannot be held vicariously liable
under § 1983 for employing or supervising an employee
that violated the plaintiff's rights—rather, a plaintiff must
plead “that each Government-official defendant, through
the official's own individual actions, has violated the
Constitution.” Iqbal, 556 U.S. at 676.
As to Vance, Plaintiff only alleges that he served as the DA
of New York County. Compl. ¶ 11. Vance may not be held
liable for merely employing or supervising Kalra and Nasar.
See Iqbal, 556 U.S. at 676. And, Plaintiff neither pleads that
Vance was personally involved in investigating the shooting
or prosecuting him, nor is there any evidence in the record to
support such a finding. Accordingly, Plaintiff's claims against
Vance are DISMISSED with prejudice, because given the lack
of evidence of Vance's personal involvement, the Court finds
that granting leave to amend would be futile. Hill v. Curcione,
657 F.3d 116, 123–24 (2d Cir. 2011).
Plaintiff similarly fails to specify Kalra and Nasar's personal
involvement in his claimed constitutional violations, stating
only that the “Prosecuting Attorneys” coached Jackson to
provide testimony. Compl. ¶ 50. But, given Plaintiff's position
as a pro se litigant, the Court recognizes that there may be
additional information made available to Plaintiff through
discovery that would enable Plaintiff to assert claims directly
against Kalra and Nasar, such as if, for example, either
of them prepared Jackson to testify. By April 15, 2022,
accordingly, the DA Defendants shall, through counsel,
inform Plaintiff and the Court whether Kalra or Nasar
prepared Jackson to testify before the grand jury with respect
to any potential criminal charges against Plaintiff, and/or
conducted an examination of Jackson before the grand jury.
No later than May 16, 2022, Plaintiff shall file an amended
complaint, alleging with specificity Kalra and Nasar's direct,
personal involvement in either “coaching” Jackson to testify
falsely before the grand jury, or deliberately eliciting false
testimony from Jackson during the grand jury proceedings.
In addition, because, as detailed infra at 25–26, the Court
finds that Plaintiff's malicious prosecution claim is deficient
because he failed to allege that the underlying criminal
proceedings terminated in his favor, an argument raised by
the City Defendants but not the DA Defendants, any amended
malicious prosecution claim that Plaintiff wishes to assert
against Kalra and Nasar should also address this issue. Failure

to do so shall result in dismissal with prejudice of Plaintiff's
remaining claims against Kalra and Nasar.
V. City's Motion to Dismiss
Plaintiff brings claims against the City Defendants, on the
grounds that (1) Miller failed to conduct a thorough and
complete investigation of the shooting, by not interviewing
several witnesses, including the 911 caller, Compl. ¶¶ 36–37,
39; (2) in his investigation, Miller obtained—but disregarded
—surveillance video from both the inside and outside of
Highline Ballroom, id. ¶¶ 40–43; (3) that Miller “used his own
added facts and embellished statements” in his investigative
reports to target Plaintiff as the sole suspect in the shooting, id.
¶ 44, see also ¶ 39; (4) that Corrando, as Miller's supervisor,
approved his investigative reports but failed to notice the
inconsistencies and contradictions therein, id. ¶ 95; and (5)
that Passamenti “authorized DNA tests,” which revealed that
the DNA evidence recovered at the scene “did not match
Plaintiff,” id. ¶ 96. The Court addresses each remaining 11
cause of action.
11

As noted, the Court dismissed Count 7 for relying
on a statute that does not provide a private right
of action, see supra at 7; Count 9 for being
duplicative of Count 4, see id. at 8, and all the state
constitutional claims Plaintiff asserts analogously
to his federal constitutional claims, see id.
A. Time Bar
1. Section 1983 Claims

*11 Plaintiff brings claims under § 1983 for unlawful search
and seizure (Count 1); false arrest (Count 2); malicious
prosecution (Count 3); deprivation of a fair trial (Count 4);
and abuse of process (Count 8). As noted, § 1983 claims are
subject to a three-year statute of limitations in this district. See
supra at 15. And, for the reasons discussed with respect to
the DA Defendants, the Court concludes that Counts 3 and 4
were timely pleaded. See supra at 16–17.
A § 1983 unlawful search and seizure claim, however,
accrues on the date the allegedly unlawful search occurred.
McClanahan v. Kelly, No. 12 Civ. 5326, 2014 WL 1317612, at
*4 (S.D.N.Y. Mar. 31, 2014). Plaintiff alleges that his property
was searched on January 9, February 12, and February 15,
2016. Compl. ¶¶ 46–47. The applicable statute of limitations,
therefore, expired no later than February 15, 2019, nearly

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two years before Plaintiff brought suit. Plaintiff's claims
are, therefore, untimely, and Count 1 is DISMISSED with
prejudice as time-barred.
Section 1983 false arrest claims and abuse-of-process claims
accrue from the date of Plaintiff's arrest. See Rivera v. City
of N.Y., No. 16 Civ. 9709, 2019 WL 252019, at *4 (S.D.N.Y.
Jan. 17, 2019) (false arrest); Anderson v. Cnty. of Putnam,
No. 14 Civ. 7162, 2016 WL 297737, at *3 (S.D.N.Y. Jan. 22,
2016) (abuse-of-process). Plaintiff was arrested on January
27, 2016, and therefore, any such claims should have been
brought no later than January 27, 2019. Counts 2 and 8 are,
accordingly, DISMISSED with prejudice as untimely.

To the extent Plaintiff's state common-law claims, asserting
various types of negligence, arise from the NYPD
investigation into the shooting on January 6, 2016; the
searches of Plaintiff's property on January 9, February 12,
and February 15, 2016; and Plaintiff's arrest on January 27,
2016, Plaintiff was required to file a notice of claim within
90 days of those events, see N.Y. Gen. Mun. L. § 50-e. As
noted, Plaintiff did not file a notice of claim with the City
until January 16, 2018—one year and eleven months after
the latest of those dates. Compl. ¶ 16. Accordingly, each of
Plaintiff's negligence claims (Counts 10–14) are DISMISSED
with prejudice. 12
12

2. Sections 1985(3) and 1986 Claims

As discussed supra at 18–19, even if the Court
construes Plaintiff's notice of claim as timely based
on the dismissal of Plaintiff's criminal case on
October 17, 2017, Plaintiff still failed to commence
this action within one year and 90 days, as required
by statute. This provides an alternative ground for
dismissal.

Liberally construing the complaint, in Count 5, Plaintiff
sets forth a conspiracy cause of action under § 1985(3),
alleging that the City Defendants engaged in a conspiracy to
have Plaintiff wrongfully convicted, see Compl. ¶ 97. This
claim appears predicated on the NYPD investigation into the
January 6, 2016 shooting, and Miller's alleged embellishment
of information, and focus on Plaintiff as the sole suspect.
Id. ¶¶ 36–37, 39, 46, 90. Plaintiff also raises a failure-tointervene claim under § 1986 (Count 6), seemingly arising
from Corrando's alleged failure to notice the inconsistencies
and contradictory statements allegedly included in Miller's
police reports. Id. ¶ 95.
Section 1985(3) claims accrue “at the time of the events that
caused the injury,” and are subject to a three-year statute
of limitations, Panetta, 2020 WL 2521533, at *5. Section
1986 claims based on a failure to intervene accrue when the
defendant fails to intervene, Thomas v. City of Troy, 293 F.
Supp. 3d 282, 303 (N.D.N.Y. 2018), and must be brought
within one year, see 42 U.S.C. § 1986. Plaintiff's claims
each began accruing no later than January 27, 2016, the date
of Plaintiff's arrest, because Plaintiff does not suggest that
any investigation took place after that date. The applicable
limitations period extends no later than January 27, 2019,
for Plaintiff's § 1985(3) claim, and January 27, 2017 for
Plaintiff's § 1986 claim, two and four years, respectively,
before the complaint was filed. Counts 5 and 6 are, therefore,
DISMISSED with prejudice as time-barred.

3. State Claims

B. Claim Against the City 13
13

Plaintiff also names the NYPD as a defendant. See
Compl. But, the NYPD is a non-suable agency of
the City, and thus, to the extent any of Plaintiff's
claims are brought against it, they fail as a matter of
law. See Jenkins v. City of N.Y., 478 F.3d 76, 93 n.19
(2d Cir. 2007). Any such claims are, accordingly,
DISMISSED with prejudice.

*12 The Court reads Plaintiff's complaint as claiming, under
Monell v. Department of Social Services, 436 U.S. 658,
that the City is liable for the allegedly unlawful conduct
of the named NYPD officers. See Compl. ¶ 179. The City
Defendants argue that Plaintiff does not include sufficient
factual allegations to support a municipal liability claim. City
Defs. Mem. at 20–22, ECF No. 34. The Court agrees.
To bring a municipal liability claim under § 1983, the plaintiff
must “prove the existence of a municipal policy or custom,”
then demonstrate a causal connection between the policy
and the alleged constitutional deprivation. Vippolis v. Vill. of
Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985). Plaintiff pleads
neither, offering only conclusory allegations that the City
Defendants “engaged in a pattern and practice to commit
the aforementioned unlawful acts,” Compl. ¶ 179, and that
a policy is “inferred” because the City Defendants “took
no steps to reprimand or discharge the officers involved,”
ECF No. 39 at 27. These allegations cannot, without more,

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state a claim for municipal liability. E.g., Fleming v. City
of New York, No. 18 Civ. 4866, 2020 WL 5522871, at *6
(S.D.N.Y. July 23, 2020). Because Plaintiff offers no facts
which suggest that the deficiencies in his Monell claim may
be cured by amendment, any such claim is DISMISSED with
prejudice. Strong v. City of Syracuse, No. 16 Civ. 1054, 2020
WL 137250, at *3–4 (N.D.N.Y. Jan. 13, 2020) (dismissing
Monell claim, with prejudice, given “[p]laintiff's conclusory
allegations are insufficient to plausibly infer a custom or
policy to support municipal liability”).

the charges” in determining whether the termination of
the criminal case was in plaintiff's favor). Indeed, Kalra
expressly declined to concede that Plaintiff was innocent,
instead reaffirming her belief that Plaintiff “was the shooter.”
Dismissal Tr. at 15. The presiding judge similarly stated on
the record that dismissal of the indictment was warranted even
though he did not “see any prosecutorial misconduct.” Id. at
16. The dismissal of the indictment, therefore, left open the
question of Plaintiff's guilt or innocence, and Plaintiff cannot,
accordingly, assert on that basis alone, that the proceedings
were terminated in his favor.

C. Passamenti's Personal Involvement
Plaintiff's remaining claims are Counts 3 (malicious
prosecution) and 4 (denial of a fair trial). As to Defendant
Passamenti, Plaintiff alleges that Passamenti authorized DNA
tests, which revealed that the DNA evidence recovered at the
scene “did not match Plaintiff.” Compl. ¶ 96. Plaintiff does
not allege that Passamenti was involved in falsification of
evidence, that he attempted to hide the results of the relevant
DNA tests, or that he was otherwise responsible for, or even
aware of, the alleged “embellishment” of statements in the
NYPD's investigative reports. Plaintiff has not, therefore,
sufficiently alleged Passamenti's direct, personal involvement
in any constitutional violations under § 1983. Tangreti, 983
F.3d at 618. And, because the record does not establish
that Plaintiff could cure this pleading defect by amendment,
Plaintiff's claims against Passamenti are DISMISSED with
prejudice.

*13 The Court notes, however, that because four years
have passed since the dismissal of the indictment, Plaintiff
may be able to plead additional facts from that time that
support this relevant element of his claim. There is no
information before the Court as to whether, for example,
Plaintiff was ever informed by the prosecutors that he had
been cleared of wrongdoing, whether Jackson or anyone
else was later prosecuted for the shooting, or whether the
state court made any further statements regarding the merits
of the charges against Plaintiff. Count 3 is, accordingly,
DISMISSED without prejudice, to provide Plaintiff with an
opportunity to plead additional facts to support this claim.

D. Malicious Prosecution
A claim for malicious prosecution under § 1983—Count
3 of the complaint—requires the plaintiff to show that the
criminal proceedings against him were terminated “in his
favor,” typically by an acquittal or another form of dismissal
of the charges on the merits. Janetka v. Dabe, 892 F.2d 187,
189–90 (1989). The City Defendants argue that Plaintiff has
not made such a showing. City Defs. Mem. at 10, 14–17. The
Court agrees. Plaintiff asserts—citing no authority in support
—that the dismissal of the indictment was a “termination
in his favor” because dismissals that “include constitutional
privilege assertions are considered favorable terminations.”
ECF No. 39 at 7, 10 (quotation marks omitted). It is not clear
what Plaintiff means by this. And, from the Court's review
of the state court transcript, it appears that, in dismissing
the indictment, neither the prosecution, nor the court, made
any statements indicating a belief in Plaintiff's innocence. See
Lanning v. City of Glens Falls, 908 F.3d 19, 28 (2d Cir. 2018)
(looking to the “reasons ... stated on the record for dismissing

E. Denial of Fair Trial
To state a claim under § 1983 for denial of a fair trial based on
the fabrication of evidence by a police officer—Count 4 of the
complaint—a plaintiff must allege that “an (1) investigating
official (2) fabricates information (3) that is likely to influence
a jury's verdict, (4) forwards that information to prosecutors,
and (5) the plaintiff suffers a deprivation of life, liberty, or
property as a result.” Garnett v. Undercover Officer C0039,
838 F.3d 265, 277 (2d Cir. 2016) (citation omitted). The
plaintiff need not show a favorable termination indicative
of innocence to state such a claim. Smalls v. Collins, 10
F. 4th 117, 142–43 (2d Cir. 2021). The City Defendants
argue that Plaintiff has failed to show a deprivation of his
liberty interests because there was probable cause for his
prosecution, in the form of corroborative ballistics evidence.
City Defs. Mem. at 16 (citing Dismissal Tr. at 15); City Defs.
Reply at 6–7, ECF No. 46.
Probable cause is not a complete defense to a fair trial claim.
Torres v. City of N.Y., No. 16 Civ. 6719, 2017 WL 4325822, at
*5 (E.D.N.Y. Sept. 27, 2017) (noting that where “independent
probable cause exists for the prosecution,” a plaintiff must
“show that the misconduct caused some deprivation above
and beyond the fact of the prosecution itself.” (citation

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omitted)). Plaintiff plausibly alleges that Miller fabricated
and “embellished” Jackson's statements in his investigative
report; that Miller provided these reports to prosecutors to
secure Plaintiff's indictment and arrest; and that Corrando,
as Miller's supervisor, reviewed and approved these reports
without identifying any “embellishments” or obvious factual
contradictions. See Compl. ¶¶ 44–49, 95. On a motion to
dismiss, the Court cannot take as true the City Defendants’
factual assertion that, regardless of any alleged fabrications
in Miller's reports, the prosecution had independent ballistics
evidence to satisfy the probable cause standard. Compare City
Defs. Reply at 6–7, with ECF No. 39 at 9–12. It cannot,
therefore, find as a matter of law, that the City Defendants had
probable cause for Plaintiff's indictment and prosecution. See
Bullard v. City of N.Y., 240 F. Supp. 2d 292, 299 (S.D.N.Y.
2003). The Court concludes, therefore, that Plaintiff has
sufficiently alleged a § 1983 denial of fair trial claim against
Miller and Corrando. The City Defendants’ motion to dismiss
Count 4 of the complaint is, accordingly, DENIED.

CONCLUSION
For the reasons stated above, the State's motion to dismiss,
ECF No. 20, is GRANTED, and Plaintiff's claims against
the State are DISMISSED. The DA Defendants’ motion
End of Document

to dismiss, ECF No. 22, is GRANTED—Plaintiff's claims
against Vance are DISMISSED; and his claims against Kalra
and Nasar are DISMISSED except for Counts 3 and 4, which
are DISMISSED without prejudice to renewal in an amended
complaint. By April 15, 2022, the DA Defendants shall make
the disclosures directed in this order. The City Defendants’
motion to dismiss is DENIED as to Count 4, and GRANTED
in all other respects. Plaintiff's claims against Passamenti, the
NYPD, and the City are DISMISSED; and his claims against
Miller and Corrando are DISMISSED, except for Count 3,
which is DISMISSED without prejudice to renewal in an
amended complaint.
*14 By May 16, 2022, Plaintiff shall file an amended
complaint as to Counts 3 and 4, with the additional factual
allegations detailed in this order. The Clerk of Court is
directed to terminate the motions pending at ECF Nos. 20,
22, and 32, and mail a copy of this order to Plaintiff pro se.
The Court shall separately provide Plaintiff with a copy of all
unpublished cases cited herein.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2022 WL 992885
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Gentry v. New York, Not Reported in Fed. Supp. (2021)
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2021 WL 3037709
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.

Steven Sharp and Albany County District Attorney David
Soares (collectively “Defendants”). (See generally Dkt. No.
1.)
1

Rondue GENTRY, Plaintiff,
v.
State of NEW YORK; Kyle Filli; David Hurley; Heath
McCrindle; Steven Sharp; and David Soares, Defendants.
1:21-CV-0319 (GTS/ML)
|
Signed 06/14/2021
Attorneys and Law Firms
Rondue Gentry, Plaintiff, Pro Se, Lakeview Shock
Incarceration Correctional Facility, P.O. Box T, Brocton, New
York 14716.

ORDER and REPORT-RECOMMENDATION
Miroslav Lovric, U.S. Magistrate Judge
I. INTRODUCTION
*1 The Clerk has sent this pro se complaint (Dkt. No. 1)
together with an amended application to proceed in forma
pauperis (Dkt. No. 5) filed by Rondue Gentry (“Plaintiff”) to
the Court for review. For the reasons discussed below, I grant
Plaintiff's amended in forma pauperis application (Dkt. No.
5) and recommend that the Complaint be accepted for filing in
part, dismissed in part without leave to amend, and dismissed
in part with leave to amend.
II. BACKGROUND
On March 22, 2021, Plaintiff commenced this action by
filing a verified Complaint and a motion to proceed in
forma pauperis. (Dkt. Nos. 1, 2.) On March 23, 2021, the
Court denied Plaintiff's in forma pauperis application as
incomplete and administratively closed the case. (Dkt. No. 4.)
On April 9, 2021, Plaintiff filed an amended in forma pauperis
application. (Dkt. No. 5.) As a result, the case was reopened
and restored to the Court's active docket. (Dkt. No. 6.)
Construed as liberally 1 as possible, the Complaint generally
alleges that Plaintiff's civil rights were violated by the State of
New York, New York State Police Officers Kyle Filli, David
Hurley, and Heath McCrindle, and Assistant District Attorney

The court must interpret pro se complaints to
raise the strongest arguments they suggest. Soto v.
Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting
Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.
1994)).

More specifically, Plaintiff alleges that on September 2, 2016,
he was arrested on felony charges but released on bail on
September 9, 2016. (Id. at 3.) While out on bail, Plaintiff
alleges that on April 9, 2017, Defendant Filli stopped him
while he was driving near a toll plaza. (Id. at 3 & Attach.
2 at 2 [Pl.’s Exs.].) 2 Plaintiff alleges that, during the stop,
“Defendant [ ] Filli [ ] falsely accused Plaintiff of having a
lit marijuana blunt in his ashtray” and that when instructed
to exit his vehicle, Plaintiff put items down the side of his
seat and eventually drove away from the officer. (Dkt. No.
1 at 3.) After he allegedly fled the scene, Plaintiff alleges
that Defendant Filli falsely accused Plaintiff of making four
“u-turns” on the interstate and, at one point, traveling at 127
miles per hour, and made “several [other] vehicle and traffic
law violations.” (Id.) Defendant Filli eventually lost sight of
Plaintiff's vehicle. (Dkt. No. 1, Attach. 2 at 2.)
2

“A copy of a written instrument that is an exhibit
to a pleading is a part of the pleading for all
purposes.” Fed. R. Civ. P. 10(c); Cortec Indus.,
Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.
1991) (“the complaint is deemed to include any
written instrument attached to it as an exhibit or
any statements or documents incorporated in it by
reference.”).

On or about April 11, 2017, Plaintiff alleges that he was
contacted by his attorney, 3 who informed Plaintiff that he
had received a call from Defendant Sharp, the Albany County
District Attorney, regarding the incident with Defendant Filli
on April 9, 2017. Plaintiff alleges that his attorney informed
him that if he did not turn himself in, a warrant would be
issued for his arrest. (Dkt. No. 1 at 4.) On the advice of
his attorney, Plaintiff alleges that he appeared at the Albany
City Courthouse on April 18, 2017, “to address the matter
in good faith and resolve any and all confusion[.]” (Id.)
Plaintiff alleges that when he arrived at the courthouse with
his attorney, he was arrested by Defendant Hurley for charges

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“lo[d]ged against him by Defendant Kyle Filli ... which were
all false allegations.” (Id.)
3

Plaintiff's references to “his attorney” in the
Complaint appear to relate to his representation in
certain criminal matters. Plaintiff has indicated to
the Court that he is proceeding pro se in this matter.
(Dkt. No. 1 at 1.)

*2 Plaintiff next alleges that he was then taken to the State
Trooper Barracks where Defendant McCrindle “falsified a
legal document alleging to have read Plaintiff his Miranda
right warnings when this is not true.” (Id.) The same day he
was arrested, on April 18, 2017, Plaintiff alleges that he was
transported to Guilderland County Courthouse and arraigned
on charges from both the Town of Guilderland and the City
of Albany. (Id.)
Following his arraignment, Plaintiff alleges that he was
transported to the Albany County Courthouse and “arraigned
on a bail revocation hearing for a prior case.” (Id. at 5.)
Plaintiff alleges that his bail was then revoked, and he was
transported to the Albany County Correctional Facility where
he remained confined for eleven months. (Id.)
On April 20, 2017, Plaintiff alleges that Defendant Soares
“maliciously prosecuted” him under case number 17040697
in the Town of Guilderland and case number 17-244811 in
the City of Albany while “knowing the allegations [against
Plaintiff] were false.” (Id.) Plaintiff next alleges that, on
March 16, 2018, “approximately eleven (11) months after
being arraigned in Guilderland County Court ... Plaintiff
received a certificate of disposition dismissing the entire
[p]roceeding in favor of the accused.” (Id.) The Complaint
includes a “Certificate of Disposition” from Albany City
Court for case number 17-244811, certifying that a “Judgment
of Dismissal” was entered as to certain charges against
Plaintiff. (Dkt. No. 1, Attach. 2 at 12.) The Complaint also
includes a copy of a letter from the Deputy Court Clerk for
the Town of Guilderland referencing “Case 17040697” and
stating that “this case was transferred to Albany City Court
as Guilderland Town Court did not have jurisdiction over this
case.” (Id. at 14.)
Liberally construed, the Complaint appears to allege the
following claims: (1) the State of New York failed to
“properly train” its state police officers, leading to his false
arrest, malicious prosecution, violation of due process rights,
and cruel and unusual punishment; (2) Defendants Filli and
Hurley, in their individual and official capacities, fabricated

evidence and falsely arrested Plaintiff in violation of the
Fourth Amendment and Plaintiff's right to due process; (3)
Defendant McCrindle, in his individual and official capacity,
fabricated evidence and failed to read Plaintiff his Miranda
warnings, in violation of Plaintiff's right to due process; (4)
Defendant Sharp, in his individual and official capacity, had
no “valid or proper warrant” to detain Plaintiff; and that (5)
Defendants Sharp and Soares, in their individual and official
capacities, “maliciously prosecuted” Plaintiff in violation of
the Fourth Amendment and Plaintiff's right to due process.
(Dkt. No. 1 at 4-8.)
As relief, Plaintiff seeks money damages from all Defendants,
including $20,000,000 from the State of New York;
$5,000,000 from Defendant Filli; $5,000,000 from Defendant
Hurley; $1,000,000 from Defendant McCrindle; $3,000,000
from Defendant Sharp; and $10,000,000 from Defendant
Soares. (Id. at 7-8.)
For a more complete statement of Plaintiff's claims, refer to
the Complaint. (Dkt. No. 1.)
III. PLAINTIFF'S AMENDED APPLICATION TO
PROCEED IN FORMA PAUPERIS
“28 U.S.C. § 1915 permits an indigent litigant to commence
an action in a federal court without prepayment of the filing
fee that would ordinarily be charged.” Cash v. Bernstein,
09-CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26,
2010). “Although an indigent, incarcerated individual need
not prepay the filing fee at the time of filing, he must
subsequently pay the fee, to the extent he is able to do
so, through periodic withdrawals from his inmate accounts.”
Cash, 2010 WL 5185047, at *1 (citing 28 U.S.C. § 1915(b);
Harris v. City of New York, 607 F.3d 18, 21 (2d Cir. 2010)). 4
4

Section § 1915(g) prohibits a prisoner from
proceeding in forma pauperis where, absent a
showing of “imminent danger of serious physical
injury,” a prisoner has filed three or more actions
that were subsequently dismissed as frivolous,
malicious, or failing to state a claim upon which
relief may be granted. See 28 U.S.C. § 1915(g).
The Court has reviewed Plaintiff's litigation history
on the Federal Judiciary's Public Access to Court
Electronic Records (“PACER”) Service. See http://
pacer.uspci.uscourts.gov. It does not appear from
that review that Plaintiff had accumulated three

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Gentry v. New York, Not Reported in Fed. Supp. (2021)
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strikes for purposes of 28 U.S.C. § 1915(g) as of
the date this action was commenced.
*3 Upon review, the Court finds that Plaintiff has submitted
a completed in forma pauperis application (Dkt. No. 5) which
demonstrates economic need. See 28 U.S.C. § 1915(a)(2).
Plaintiff has also filed an inmate authorization form. (Dkt. No.
3.) Accordingly, Plaintiff's amended application to proceed
with this action in forma pauperis is granted.
IV. LEGAL STANDARD FOR INITIAL REVIEW OF
COMPLAINT
Having found that Plaintiff meets the financial criteria for
commencing this action in forma pauperis, and because
Plaintiff seeks relief from an officer or employee of a
governmental entity, the Court must consider the sufficiency
of the allegations set forth in the Complaint in light of 28
U.S.C. § 1915(e) and 28 U.S.C. § 1915A(a). Section 1915(e)
of Title 28 of the United States Code directs that, when a
plaintiff seeks to proceed in forma pauperis, “the court shall
dismiss the case at any time if the court determines that— ...
(B) the action ... (i) is frivolous or malicious; (ii) fails to state a
claim on which relief may be granted; or (iii) seeks monetary
relief against a defendant who is immune from such relief.”
28 U.S.C. § 1915(e)(2)(B). 5
5

To determine whether an action is frivolous, a court
must look to see whether the complaint “lacks an
arguable basis in either law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989).

Similarly, under 28 U.S.C. § 1915A, a court must review
any “complaint in a civil action in which a prisoner seeks
redress from a government entity or officer or employee of
a government entity” and must “identify cognizable claims
or dismiss the complaint, or any portion of the complaint,
if the complaint ... is frivolous, malicious, or 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); see also Carr v. Dvorin, 171 F.3d
115, 116 (2d Cir. 1999) (per curiam) (noting that Section
1915A applies to all actions brought by prisoners against
governmental officials even when plaintiff paid the filing fee).
Additionally, when reviewing a complaint, a court may also
look to the Federal Rules of Civil Procedure. Rule 8 of the
Federal Rules of Civil Procedure provides that a pleading
which sets forth a claim for relief shall contain, inter alia, “a
short and plain statement of the claim showing that the pleader

is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The purpose of
Rule 8 “is to give fair notice of the claim being asserted so as
to permit the adverse party the opportunity to file a responsive
answer, prepare an adequate defense and determine whether
the doctrine of res judicata is applicable.” Powell v. Marine
Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995) (McAvoy,
C.J.) (quoting Brown v. Califano, 75 F.R.D. 497, 498 (D.D.C.
1977)).
A court should not dismiss a complaint if the plaintiff
has stated “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. 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). While the court should construe the factual allegations
in the light most favorable to the plaintiff, “the tenet that a
court must accept as true all of the allegations contained in
a complaint is inapplicable to legal conclusions.” Ashcroft,
556 U.S. at 678. “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Id. (citing Twombly, 550 U.S. at 555). Rule 8
“demands more than an unadorned the-defendant-unlawfullyharmed-me accusation.” Id. Thus, a pleading that contains
only allegations which “are so vague as to fail to give the
defendants adequate notice of the claims against them” is
subject to dismissal. Sheehy v. Brown, 335 F. App'x 102, 104
(2d Cir. 2009).
V. ANALYSIS
*4 In addressing the sufficiency of a plaintiff's complaint,
the court must construe his pleadings liberally. Sealed
Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir.
2008). Having reviewed the Complaint with this principle in
mind, I recommend that the Complaint be accepted for filing
in part and dismissed in part.
A. Heck Delayed Accrual Claims
“A claim for damages [that would necessarily imply the
invalidity of a plaintiff's state court] conviction or sentence
that has not been so invalidated is not cognizable under §
1983.” Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). In
Covington v. City of New York, the Second Circuit held that
“if success on a § 1983 claim would necessarily impugn the
validity of a conviction in a pending criminal prosecution,
such a claim does not accrue so long as the potential for
a judgment in the pending criminal prosecution continues

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to exist.” Covington v. City of New York, 171 F.3d 117,
124 (2d Cir. 1999); see also McDonough v. Smith, 139 S.
Ct. 2149, 2156-57 (2019) (holding that a plaintiff could not
bring a “fabricated-evidence claim under § 1983 prior to
favorable termination of his prosecution”); Perry v. City of
Albany, 20-CV-165, 2020 WL 3405636, at *4 (N.D.N.Y.
May 6, 2020) (Stewart, M.J.) (“[c]laims of false arrest,
false imprisonment, malicious prosecution, and fabrication of
evidence are generally viewed as barred by the rule in Heck.”),
report and recommendation adopted by, 2020 WL 3403080
(N.D.N.Y. June 19, 2020) (Suddaby, C.J.); McFadden v.
Jaeon, 12-CV-1255, 2012 WL 4107466, at *2 (N.D.N.Y
Aug. 23, 2012) (Randolph, M.J.) (barring claims for false
arrest and “faulty Miranda warnings” pursuant to Heck),
report and recommendation adopted by, 2012 WL 4107465
(N.D.N.Y. Sept. 18, 2012) (Mordue, J.); Harris v. Buffardi,
08-CV-1322, 2011 WL 3794235, at *10 (N.D.N.Y. Aug. 24,
2011) (Sharpe, J.) (claims for “violation of his due process
rights, fabrication of evidence, obstruction of justice, bad faith
inadequate investigation, and §§ 1983 and 1985 conspiracy—
all of which are patent attacks on the validity of [plainitff's]
conviction—[were] barred.”).
Plaintiff specifically alleges that the case against him in the
City of Albany, case number 17-244811, was “terminated in
his favor” on March 16, 2018 when he received a “Judgement
of Dismissal.” (Dkt. No. 1 at 5, Attach. 2 at 12.) However,
Plaintiff does not similarly allege that the case against him
in the Town of Guilderland, case number 17040697, was
also dismissed or otherwise terminated in his favor. Instead,
Plaintiff vaguely alleges that the “entire proceeding” was
dismissed and that the charges against him were “terminated
in his favor.” (Dkt. No. 1 at 5, 7.) While the Complaint
includes a copy of a letter from the Deputy Court Clerk for
the Town of Guilderland referencing “Case 17040697” that
states that “th[e] case was transferred to Albany City Court as
Guilderland Town Court did not have jurisdiction[,]” Plaintiff
does not specifically allege how the charges from that case
were resolved. (Dkt. No. 1, Attach. 2 at 14.)
Because Plaintiff has failed to allege sufficient facts showing
that the case filed against him in the Town of Guilderland
terminated in his favor, the Court has a basis to dismiss all of
Plaintiff's claims relating to that case as premature pursuant
to Heck. However, because I also recommend that nearly all
of Plaintiff's claims should be dismissed for the additional,
independent reasons that follow, I only recommend that the
fabrication of evidence claims relating to the charges against
Plaintiff in the Town of Guilderland against Defendants Filli,

Hurley, and McCrindle, in their individual capacities, be
dismissed as premature pursuant to Heck. 6
6

The Complaint does not separate claims against the
Defendants based on the two underlying criminal
cases against Plaintiff in the City of Albany and
Town of Guilderland. However, as discussed in
Section V.D.1.iii. of this Report-Recommendation,
Plaintiff's fabrication of evidence claims against
Defendants Filli, Hurley, and McCrindle, in their
individual capacities, that relate to the criminal
charges against Plaintiff in the City of Albany,
should be accepted for filing.

B. Claims Against the State of New York
*5 The Eleventh Amendment provides that “[t]he Judicial
power of the United States shall not be construed to extend to
any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.” U.S. CONST.
amend. XI. Regardless of the nature of the relief sought, in
the absence of the State's consent or waiver of immunity, a
suit against the State or one of its agencies or departments is
proscribed by the Eleventh Amendment. Pennhurst State Sch.
& Hosp. v. Halderman, 465 U.S. 89, 100 (1984). “New York
State has not consented to suit in federal court.” Abrahams v.
Appellate Div. of Supreme Court, 473 F. Supp. 2d 550, 556
(S.D.N.Y. 2007) (citing Trotman v. Palisades Interstate Park
Comm'n, 557 F.2d 35, 38-40 (2d. Cir. 1977)). Section 1983
claims do not abrogate the Eleventh Amendment immunity of
the states. See Quern v. Jordan, 440 U.S. 332, 340-41 (1979).
Therefore, I recommend dismissal of all claims brought by
Plaintiff against the State of New York pursuant to the
Eleventh Amendment. 7
7

Plaintiff also alleges that he “filed a claim in the
New York State Court of Claims [against the State
of New York] dealing with the same facts involved
in this action[,]” but that the case was dismissed on
July 25, 2019 “due to failure of establishing proper
service.” (Dkt. No. 1 at 2.) A court's dismissal
for failure to establish proper service is not a
final judgment such that res judicata would apply.
Martin v. New York State Dep't of Mental Hygiene,
588 F.2d 371, 373 n.3 (2d Cir. 1978) (“a dismissal
for failure of service of process, of course, has no
res judicata effect.”); Troeger v. Ellenville Cent.
Sch. Dist., 15-CV-1294, 2016 WL 5107119, at *7

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(N.D.N.Y. Sept. 20, 2016) (D'Agostino, J.) (“The
dismissal based upon failure to join a necessary
party and improper service are not final decisions
on the merits for res judicata purposes.”). Based
on the Court's review of the New York Court of
Claims public docket, Plaintiff's case against the
State of New York, Claim No. 132064, was indeed
dismissed on June 3, 2019 for failure to properly
serve the State of New York in accordance with
the service requirements set forth in the New York
Court of Claims Act § 11 and 22 N.Y.C.R.R. §
206.5(a). Gentry v. State of New York, Claim No.
132064 (N.Y. Ct. Cl. June 3, 2019).
C. Claims Against Defendants Sharp and Soares
1. Individual Capacity
“It is by now well established that a state prosecuting attorney
who acted within the scope of his duties in initiating and
pursing 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) (citation and internal
quotation marks omitted) (collecting cases). “Because the
immunity attaches to the official prosecutorial function ... and
because the initiation and pursuit of a criminal prosecution
are quintessential prosecutorial functions ... the prosecutor
has absolute immunity for the initiation and conduct of a
prosecution unless he proceeds in the clear absence of all
jurisdiction.” Shmueli, 424 F.3d at 237 (citations and internal
quotation marks omitted).
These principles also protect a prosecutor against malicious
prosecution claims brought under state law. Id. at 238; see
also Buckley v. Fitzsimmons, 509 U.S. 259, 274 n.5 (1993)
(indicating that the court's conclusion that absolute immunity
protects a prosecutor against § 1983 claims in the nature of
malicious prosecution was based in part on the “common-law
tradition of immunity for a prosecutor's decision to bring an
indictment, whether he has probable cause or not”); Imbler v.
Pachtman, 424 U.S. 409, 424 (1976) (same principles require
conferral of absolute immunity for damages claims under §
1983 and state law).
*6 However, “[a] prosecutor is not absolutely immune solely
because she engaged in the conduct in question during her line
of work.” D'Alessandro v. City of New York, 713 F. App'x 1, 5
(2d Cir. 2017) (citing Buckley v. Fitzsimmons, 509 U.S. 259,
273 (1993)). A prosecutor is entitled to absolute immunity

“when she acts as an ‘advocate.’ ” Id. (citing Warney v.
Monroe Cnty., 587 F.3d 113, 121 (2d Cir. 2009)). To be sure,
“[a] prosecutor wears many hats” including “administrat[or],”
“investigator,” and “advocate[ ].” Id. (quoting Hill v. City of
New York, 45 F.3d 653, 656 (2d Cir. 1995)). The “functional”
test of whether a prosecutor was acting as an advocate is an
objective one, and a court only asks whether “the conduct
in question could “reasonably” fall under the rubric of the
prosecutor's function as an advocate.” Id. at 5 n.6. (emphasis
in original) (citations omitted). “If it does, then absolutely
immunity attaches even if the prosecutor engaged in those
actions with vindictive or malicious intent.” Id.
“Under our case law, a prosecutor unquestionably acts as
an advocate—and therefore receives absolute immunity—
when she initiates and pursues a criminal prosecution.” Id.
(citing Shmueli, 424 F.3d at 236). Indeed, “a prosecutor still
acts within the scope of her duties even if she ... knowingly
uses false testimony, ... engages in malicious prosecution, or
attempts to intimidate an individual into accepting a guilty
plea.” Id. (citing Shmueli, 424 F.3d at 237-38; Peay v. Ajello,
470 F.3d 65, 67-68 (2d Cir. 2006)); see also Parker v. Soares,
19-CV-113, 2019 WL 2232591, at *6 (N.D.N.Y. May 23,
2019) (Hummel, M.J.) (holding that prosecutorial immunity
barred certain false arrest claims against Assistant District
Attorney David Soares), report and recommendation adopted
by, 2019 WL 2491918 (N.D.N.Y. June 14, 2019) (Sharpe, J.).
Here, I find that the allegations against Defendants Sharp and
Soares arise out of acts intimately associated with the judicial
phase of the criminal process, in their role as advocates,
including the initiation of criminal proceedings against
Plaintiff in the City of Albany and Town of Guilderland. As a
result, I recommend that any claims against Defendants Sharp
and Soares, in their individual capacity, be dismissed.

2. Official Capacity
As previously stated, “[t]he Eleventh Amendment generally
bars suits against a state in federal court.” Pikulin v. City Univ.
of N.Y., 176 F.3d 598, 600 (2d Cir. 1999) (per curiam) (citation
omitted). When a defendant is sued in his official capacity, we
treat the suit as one against the “entity of which an officer is an
agent.” Kentucky v. Graham, 473 U.S. 159, 165–66, (1985).
If a district attorney or an assistant district attorney acts as a
prosecutor, she is an agent of the state, and therefore immune
from suit in her official capacity. D'Alessandro, 713 F. App'x

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1, 8 (2d Cir. 2017) (citing Ying Jing Gan v. City of New York,
996 F.2d 522, 536 (2d Cir. 1993)).
Here, the claims against Defendants Sharp and Soares, in their
official capacities, are effectively claims against the State of
New York. For that reason, these claims must be dismissed.
D. Claims Against Defendants Filli, Hurley, and
McCrindle
1. Individual Capacity
Liberally construed, the Complaint alleges claims against
Defendants Filli and Hurley for fabrication of evidence and
false arrest, in violation of the Fourth Amendment and
Plaintiff's right to due process. The Complaint also alleges
claims against Defendant McCrindle for fabricating evidence
and failing to read Plaintiff his Miranda warnings in violation
of Plaintiff's right to due process. (See generally Dkt. No. 1
at 3-4, 6-8.) 8
8

The Complaint makes other, sporadic legal
conclusions. For example, Plaintiff alleges that,
“as a result of the actions of all defendants [he
has] suffered mental anguish, extreme emotion
distress and cruel and unusual punishment.” (Dkt.
No. 1 at 7.) Plaintiff later clarifies that he seeks
to hold the State of New York liable for his
“cruel and unusual punishment.” (Id.) However,
as explained in Section V.A. above, the State of
New York is immune from suit. To the extent
that Plaintiff alleges that Defendants Filli, Hurley,
and McCrindle, in their individual capacities, may
have caused his “cruel and unusual punishment” or
otherwise inflicted emotional distress upon him, his
bare legal conclusions are insufficient to withstand
the Court's review under 28 U.S.C. § 1915(e) and
28 U.S.C. § 1915A.

*7 For the following reasons, I recommend dismissal of all
claims against Defendants Filli, Hurley, and McCrindle in
their official capacities. I also recommend dismissal of the
false arrest claims against Defendants Filli and Hurley, in their
individual capacities, and dismissal of the Miranda claim
against Defendant McCrindle, in his individual capacity.
However, I recommend that the fabrication of evidence claims
against Defendants Filli, Hurley, and McCrindle, in their

individual capacities, as relates to the case against Plaintiff in
the City of Albany, be accepted for filing.

i. False Arrest Claims Against
Defendants Filli and Hurley
“A § 1983 claim for false arrest, which derives from an
individual's right under the Fourth Amendment to be free
from unreasonable seizures, including arrest without probable
cause, see, e.g., Lennon v. Miller, 66 F.3d 416, 423 (2d Cir.
1995), is substantially the same as a claim for false arrest
under New York law.” Kates v. Greece Police Dep't, 16CV-6554, 2017 WL 11548970, at *3 (W.D.N.Y. Feb. 21,
2017) (citing Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.
1996). Generally, the statute of limitations for a § 1983 action
accruing in New York is three years. Shomo v. City of New
York, 579 F.3d 176, 181 (2d Cir. 2009). Although the statute of
limitations is an affirmative defense, where it is clear from the
face of the complaint that a claim is barred by the applicable
statute of limitations, the claim is subject to dismissal for
failure to state a claim on 28 U.S.C. § 1915(e)(2)(B) review.
See Pino v. Ryan, 49 F.3d 51, 53-54 (2d Cir. 1995) (holding
that a complaint can be dismissed on initial review based
on a defense that appears on the face of the complaint);
Syfert v. City of Rome, 17-CV-0578, 2018 WL 3121611, at
*3-5 (N.D.N.Y. Feb. 12, 2018) (Dancks, M.J.) (dismissing all
claims as barred by the statute of limitations on initial review
pursuant to 28 U.S.C. § 1915(e)(2)(B)).
With regard to Plaintiff's allegations that Defendants Filli and
Hurley “falsely arrested” him, the Court must determine when
the claims accrued. The Second Circuit in Singleton found
that a false arrest claim accrued on the date of arrest because
that “was the time at which plaintiff knew of his injury arising
from the alleged ... false arrest.” Singleton v. City of New York,
632 F.2d 185, 191 (2d Cir. 1980). Applying Wallace v. Kato,
549 U.S. 384 (2007), the Second Circuit more recently held
that a false arrest claim accrues when the “false imprisonment
ends,” or more specifically, “when ‘the victim becomes held
pursuant to legal process,’ ” e.g., when he is arraigned on
charges. Lynch v. Suffolk Cty. Police Dep't, Inc., 348 F.
App'x 672, 675 (2d Cir. 2009) (quoting Wallace, 549 U.S.
at 388-89); see also Thomas v. Heid, 17-CV-1213, 2017 WL
9673716, at *3 (N.D.N.Y. Dec. 6, 2017) (recognizing that a
false arrest claim accrues under § 1983 is when “the alleged
false imprisonment ends: when the arrestee is bound over by
a magistrate or arraigned on charges.”) (Stewart, M.J.), report
and recommendation adopted, 2018 WL 1773130 (N.D.N.Y.

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Apr. 12, 2018) (D'Agostino, J.). Other cases have simply held
that a false arrest claim under § 1983 accrues on the date of
arrest itself. See Kislowski v. Kelley, 19-CV-218, 2020 WL
495059, at *3 (N.D.N.Y. Jan. 30, 2020) (Stewart, M.J.) (“a
false arrest claim accrues at the time of the arrest.”).
The distinction between the date of arrest and the date of
arraignment here is of no moment because Plaintiff alleges
that he was arrested and arraigned on the same day, April 18,
2017. (Dkt. No. 1 at 4.) Even if the charges stemming from the
April 9, 2017, incident were ultimately dismissed on March
16, 2018, as Plaintiff alleges, 9 his false arrest claims against
Defendants Filli and Hurley first accrued on April 18, 2017,
the date when he was both arrested and arraigned on those
charges. As a result, the statute of limitations on his false
arrest claims under § 1983 expired on or about April 18, 2020.
The Complaint was signed on March 6, 2021 and filed with
the Court on March 22, 2021, well after the three-year period
had expired. 10 I therefore recommend that Plaintiff's Fourth
Amendment false arrest claims against Defendants Filli and
Hurley be dismissed as untimely.
9

Significantly, it is no longer the law of this
circuit that a “false arrest” claim under § 1983
accrues only once a plaintiff received a favorable
judgment stemming from the allegedly false arrest.
See Jones v. City of New York, 13-CV-929, 2016
WL 1322443, at *3 (S.D.N.Y. Mar. 31, 2016)
(explaining that the prior rule from Covington v.
City of New York, 171 F.3d 117 (2d Cir. 1999) that
a false arrest claim may not accrue until a favorable
verdict was reached was overruled by the Supreme
Court's Wallace decision).

1983 liability.” Deshawn E. v. Safir, 156 F.3d 340, 346 (2d
Cir. 1998). Instead, the remedy for a violation of the right
against self-incrimination is ‘the exclusion from evidence of
any ensuing self-incriminating statements’ and ‘not a § 1983
action.’ ” Id. (quoting Neighbour v. Covert, 68 F.3d 1508,
1510 (2d Cir. 1995)). However, “[a] Miranda violation that
amounts to actual coercion based on outrageous government
misconduct is a deprivation of a constitutional right that can
be the basis for a § 1983 suit, even when a confession is
not used against the declaration in any fashion.” Id. at 348
(internal citations omitted).
The Complaint does not allege any facts that would plausibly
suggest that Defendant McCrindle coerced Plaintiff into
giving any inculpatory statements that were later used against
him. Additionally, much like Plaintiff's claims alleging
false arrest, Plaintiff's Miranda claim against Defendant
McCrindle is untimely because it was not made within three
years from the date that it accrued. See Rahn v. Erie County
Sheriff's Dept., 96-CV-0756E, 1999 WL 1067560, at *2
(W.D.N.Y. Nov. 19, 1999) (finding that a Miranda claim
accrued “about the time of [plaintiff's] arrest” and was subject
to the three year statute of limitations bar to § 1983 claims).
For these reasons, I recommend Plaintiff's Miranda claim
against Defendant McCrindle be dismissed.

iii. Fabrication of Evidence Claims Against
Defendants Filli, Hurley, and McCrindle

ii. Miranda Claim Against Defendant McCrindle

“When a police officer creates false information likely to
influence a jury's decision and forwards that information to
prosecutors, he violates the accused’ constitutional right to a
fair trial, and the harm occasioned by such an unconscionable
action is redressable in an action for damages under 42 U.S.C.
§ 1983.” Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130
(2d Cir. 1997) (citations omitted). Unlike Plaintiff's claims
for false arrest and for a Miranda violation, “[t]he statute of
limitations for a fabricated-evidence claim ... does not begin
to run until the criminal proceedings against the defendant
(i.e., the § 1983 plaintiff) have terminated in his favor.”
McDonough v. Smith, 139 S. Ct. 2149, 2154–55 (2019).

*8 As a general matter, “no cause of action exists under
42 U.S.C. § 1983 for Miranda violations.” Hernandez v.
Llukaci, 16-CV-1030, 2019 WL 1427429, at *7 (N.D.N.Y.
Mar. 29, 2019) (Hurd, J.) (citing Chavez v. Martinez, 538
U.S. 760, 767 (2003)). The failure to inform a plaintiff of his
rights under Miranda, “does not, without more, result in §

Mindful of the Second Circuit's instruction that a pro se
plaintiff's pleadings must be liberally construed and without
expressing an opinion as to whether the Complaint can
withstand a properly filed motion to dismiss or for summary
judgment, I recommend that a response be required to
Plaintiff's fabrication of evidence claims relating to the case

10

Under the prison mailbox rule, a prisoner's
complaint is deemed filed when it is handed to
prison officials—presumptively on the date that the
complaint was signed. Hardy v. Conway, 162 Fed.
App'x 61, 62 (2d Cir. 2006) (collecting cases).

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against Plaintiff in the City of Albany, against Defendants
Filli, Hurley, and McCrindle, in their individual capacities.

iv. Due Process Claims Against
Filli, Hurley, and McCrindle
The Complaint makes several generalized references to
being deprived of “due process” and his “life, liberty, and
happiness” in connection with the claims against Defendants
McCrindle, Filli, and Hurley. (Dkt. No. 1 at 6-7.) But where a
plaintiff makes due process and false arrest claims stemming
from the same set of facts, the Second Circuit has held that
the two claims “merge,” such that a plaintiff's due process
claim is subsumed by the “false arrest” claim. FernandezBravo v. Town of Manchester, 711 F. App'x 5, 8 (2d Cir.
2017); Maliha v. Faluotico, 286 F. App'x 742, 744 (2d Cir.
2008); see also Lozado v. Weilminster, 92 F. Supp. 3d 76,
102 (E.D.N.Y. 2015) (holding that a plaintiff's procedural
due process claim merges with his false arrest claim, the
constitutional source of which is the Fourth Amendment);
but see Sepulveda v. City of New York, 15-CV-5187, 2017
WL 3891808, at *5 (E.D.N.Y. Feb. 14, 2017) (recognizing
that a false arrest claim will not merge with a due process
claim where the due process claim challenges the conditions
of detention, as opposed to the wrongfulness of the detention
itself), report and recommendation adopted, 15-CV-5187,
2017 WL 3887872 (E.D.N.Y. Sept. 5, 2017).
*9 It is clear from the face of the Complaint that Plaintiff's
vague and conclusory references to being denied due process
stem directly from the allegations relating to his false
arrest. 11 I therefore find that any due process claims Plaintiff
alleges against Defendants Filli, Hurley, and McCrindle
merge into his false arrest claims, and consistent with my prior
analysis of those claims in Section V.D.1.i., I recommend that
they are dismissed as untimely.
11

Plaintiff also makes the conclusory allegation that
he was “deprived of bail.” (Dkt. No. 1 at 7.)
However, it is clear from the face of the Complaint
that Plaintiff was afforded bail, as he alleges that
when the April 9, 2017 incident took place, he was
out on bail from prior charges. (Id. at 3.) Only after
he was arrested and arraigned on charges stemming
from that April 9, 2017 incident does he allege that
his bail on the prior charges was revoked, “after [a]
bail revocation hearing.” (Id. at 5.)

2. Official Capacity
“ ‘[C]laims against a government employee in his official
capacity are treated as a claim against the municipality,’
and, thus, cannot stand under the Eleventh Amendment.”
Jackson v. Gunsalus, 16-CV-0647, 2016 WL 4004612, at
*2 (N.D.N.Y. June 24, 2016) (Dancks, M.J.) (quoting Hines
v. City of Albany, 542 F. Supp. 2d 218, 227 (N.D.N.Y.
2008) (McCurn, J.)), report and recommendation adopted by,
2016 WL 3983635 (July 25, 2016) (Sharpe, J.); see Hafer v.
Melo, 502 U.S. 21, 25 (1991) (citing Graham, 473 U.S. at
166-67) (“Suits against state officials in their official capacity
therefore should be treated as suits against the State.”).
Here, to the extent that Plaintiff asserts claims against
Defendants Filli, Hurley, and McCrindle in their official
capacities, I recommend that those claims be dismissed
because they are, in reality, claims against the State of New
York, which is immune from suit.
VI. OPPORTUNITY TO AMEND
Generally, a court should not dismiss claims contained in 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.”
Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991);
see also Fed. R. Civ. P. 15(a)(2) (“The court should freely
give leave when justice so requires.”). An opportunity to
amend is not required, however, where “the problem with [the
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); see also Cortec Indus. Inc. v. Sum Holding
L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a
plaintiff is unable to allege any fact sufficient to support its
claim, a complaint should be dismissed with prejudice.”).
Stated differently, “[w]here it appears that granting leave to
amend is unlikely to be productive, ... it is not an abuse of
discretion to deny leave to amend.” Ruffolo v. Oppenheimer
& Co., 987 F.2d 129, 131 (2d Cir. 1993); accord, Brown v.
Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept.
22, 1997) (Pooler, J.). 12
12

See also Carris v. First Student, Inc., 132 F. Supp.
3d 321, 340-41 n.1 (N.D.N.Y. 2015) (Suddaby,
C.J.) (explaining that the standard set forth in
Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794,
796 (2d Cir. 1999)—that the Court should grant

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leave to amend “unless the court can rule out any
possibility, however unlikely it might be, that an
amended complaint would be successful in stating
a claim”—is likely not an accurate recitation of the
governing law after Bell Atl. Corp. v. Twombly, 550
U.S. 544 (2007)), rev'd on other grounds, 682 F.
App'x 30.
*10 I recommend that Plaintiff's claims against Defendant
State of New York be dismissed with prejudice and without
leave to amend. Sonnick v. Budlong, 20-CV-0410, 2020 WL
2999109, at *10 (N.D.N.Y. June 4, 2020) (Lovric, M.J.)
(recommending dismissal without leave to amend, claims
against New York State Police), report and recommendation
adopted by, 2020 WL 4345004 (N.D.N.Y. July 29, 2020)
(McAvoy, J.). Similarly, I recommend that Plaintiff's claims
against Defendants Filli, Hurley, and McCrindle, in their
official capacities, be dismissed with prejudice and without
leave to amend because they are immune from suit. See
Jackson v. Gunsalus, 16-CV-0647, 2016 WL 4004612, at
*2 (N.D.N.Y. June 24, 2016) (Dancks, M.J.) (dismissing
with prejudice and without leave to amend claims against
police officers, in their official capacities, as barred by the
Eleventh Amendment), report and recommendation adopted,
2016 WL 3983635 (July 25, 2016) (Sharpe, J.). I also
recommend that Plaintiff's claims against Defendants Soares
and Sharp, in their official and individual capacities, be
dismissed with prejudice and without leave to amend because
they are also immune from suit. See Lawrence v. Sherman, 20CV-0694, 2020 WL 5904789, at *3 (N.D.N.Y. Oct. 6, 2020)
(D'Agostino, J.) (dismissing with prejudice claims against a
defendant prosecutor based on the doctrine of prosecutorial
immunity).
I also recommend dismissal with leave to amend the
fabrication of evidence claims, that relate to the case against
Plaintiff in the Town of Guilderland, against Defendants
Filli, Hurley, and McCrindle, in their individual capacities. 13
Perry v. City of Albany, 20-CV-165, 2020 WL 3405636, at
*4 (N.D.N.Y. May 6, 2020) (Stewart, M.J.) (recommending
dismissal with leave to amend claims that appeared to be
barred based on Heck), report and recommendation adopted,
20-CV-0165, 2020 WL 3403080 (N.D.N.Y. June 19, 2020)
(Suddaby, C.J.).
13

As discussed in Section V.D.1.iii. above, I
recommend that the fabrication of evidence claims
against Defendants Filli, Hurley, and McCrindle,
in their individual capacities, that relate to the case

against Plaintiff in the City of Albany be accepted
for filing because Plaintiff specifically alleged that
the City of Albany case was terminated in Plaintiff's
favor. (Dkt. No. 1 at 5.)
As to Plaintiff's claims for false arrest against Defendants Filli
and Hurley, in their individual capacities, and for a Miranda
violation against Defendant McCrindle, in his individual
capacity, although I have found that these claims are barred
by the applicable statute of limitations for the reasons stated
in Sections V.D.1.i. and V.D.1.ii., a district court typically
should not dismiss claims as time-barred without providing a
pro se plaintiff with “notice and an opportunity to be heard”
as to whether there might be a meritorious tolling argument or
other reason why the complaint might be considered. Abbas
v. Dixon, 480 F.3d 636, 640 (2d Cir. 2007). For that reason, I
recommend that Plaintiff's false arrest and Miranda claims be
dismissed with leave to amend, even though it appears very
unlikely to the undersigned that Plaintiff can state plausible
claims.
If Plaintiff chooses to file an amended complaint, he
should note that the law in this circuit clearly provides
that “ ‘complaints relying on the civil rights statutes are
insufficient unless they contain some specific allegations of
fact indicating a deprivation of rights, instead of a litany
of general conclusions that shock but have no meaning.’
” Hunt v. Budd, 895 F. Supp. 35, 38 (N.D.N.Y. 1995)
(McAvoy, J.) (quoting Barr v. Abrams, 810 F.2d 358, 363 (2d
Cir. 1987)); accord Pourzancvakil v. Humphry, 94-CV-1594,
1995 WL 316935, at *7 (N.D.N.Y. May 23, 1995) (Pooler,
J.). In any amended complaint, Plaintiff must clearly set
forth facts that give rise to the claims, including the dates,
times, and places of the alleged underlying acts, and each
individual who committed each alleged wrongful act. The
revised pleading must also allege facts demonstrating the
specific involvement of any of the named defendants in
the constitutional deprivations alleged in sufficient detail
to establish that they were tangibly connected to those
deprivations. Bass v. Jackson, 790 F.2d 260, 263 (2d Cir.
1986). Finally, Plaintiff is informed that any such amended
complaint will replace the existing Complaint and must be a
wholly integrated and complete pleading that does not rely
upon or incorporate by reference any pleading or document
previously filed with the Court. See Shields v. Citytrust
Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (“It is well
established that an amended complaint ordinarily supersedes
the original and renders it of no legal effect.”).
*11 ACCORDINGLY, it is

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ORDERED that Plaintiff's amended in forma pauperis
application (Dkt. No. 5) is GRANTED; and it is further
ORDERED that the Clerk of the Court (1) provide the
Superintendent of the facility that Plaintiff has designated
as his current location with a copy of Plaintiff's inmate
authorization form (Dkt. No. 3) and notify that official that
Plaintiff has filed this action and is required to pay the
Northern District of New York the entire statutory filing
fee of $350.00 in installments, over time, pursuant to 28
U.S.C. § 1915; and (2) provide a copy of Plaintiff's inmate
authorization form (Dkt. No. 3) to the Financial Deputy of the
Clerk's Office; and it is further respectfully
RECOMMENDED that the Court ACCEPT FOR FILING
Plaintiff's fabrication of evidence claims against Defendants
Filli, Hurley, and McCrindle, in their individual capacities, as
those claims relate to the case against Plaintiff in the City of
Albany; and it is further respectfully
RECOMMENDED that the Court DISMISS WITHOUT
PREJUDICE AND WITH LEAVE TO REPLEAD
Plaintiff's fabrication of evidence claims against Defendants
Filli, Hurley, and McCrindle, in their individual capacities, as
those claims relate to the case against Plaintiff in the Town of
Guilderland, as premature pursuant to Heck v. Humphrey, 512
U.S. 477 (1994); and it is further respectfully
RECOMMENDED that the Court DISMISS WITH
PREJUDICE AND WITHOUT LEAVE TO REPLEAD
Plaintiff's claims against the State of New York, Defendants
Filli, Hurley, and McCrindle, in their official capacities, and
Defendants Sharp and Soares, in their official and individual
capacities; and it is further respectfully
RECOMMENDED that the Court DISMISS WITHOUT
PREJUDICE AND WITH LEAVE TO REPLEAD
End of Document

Plaintiff's false arrest claims against Defendants Filli and
Hurley, in their individual capacities, and Plaintiff's claim
for a Miranda violation against Defendant McCrindle, in his
individual capacity; and it is further
ORDERED that the Clerk of the Court shall file a copy of this
Order and Report-Recommendation on Plaintiff, along with
copies of the unpublished decisions cited herein in accordance
with the Second Circuit's decision in Lebron v. Sanders, 557
F.3d 76 (2d Cir. 2009) (per curiam).
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties
have fourteen days within which to file written objections
to the foregoing report. 14 Such objections shall be filed
with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)
(1) (Supp. 2013); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v.
Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of
Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).
14

If you are proceeding pro se and served with this
report, recommendation, and order by mail, three
additional days will be added to the fourteen-day
period, meaning that you have seventeen days from
the date that the report, recommendation, and order
was mailed to you to serve and file objections. Fed.
R. Civ. P. 6(d). If the last day of that prescribed
period falls on a Saturday, Sunday, or legal holiday,
then the deadline is extended until the end of the
next day that is not a Saturday, Sunday, or legal
holiday. Fed. R. Civ. P. 6(a)(1)(C).

All Citations
Not Reported in Fed. Supp., 2021 WL 3037709

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1
2021 WL 3032691
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Rondue GENTRY, Plaintiff,
v.
State of NEW YORK; Kyle Filli; David Hurley; Heath
McCrindle; Steven Sharp; and David Soares, Defendants.
1:21-CV-0319 (GTS/ML)
|
Signed 07/19/2021
Attorneys and Law Firms
RONDUE GENTRY, 18-A-1238, Plaintiff, Pro Se, Lakeview
Shock Incarceration Correctional Facility, P.O. Box T,
Brocton, New York 14716.

DECISION and ORDER
GLENN T. SUDDABY, Chief United States District Judge
*1 Currently before the Court, in this pro se civil
rights action filed by Rondue Gentry (“Plaintiff”) against
the State of New York, New York State Police Officers
Kyle Filli, David Hurley and Heath McCrindle, Assistant
District Attorney Steven Sharp, and Albany County District
Attorney David Soares (“Defendants”), is United States
Magistrate Judge Miroslav Lovric's Report-Recommendation
recommending that certain of Plaintiff's claims be dismissed
with prejudice (and without prior leave to amend), certain of
those claims be dismissed without prejudice (and with limited
leave to amend in this action), and the remainder of those
claims survive the Court's sua sponte review of his Complaint.
(Dkt. No. 7.) Plaintiff has not filed an Objection to the ReportRecommendation, and the deadline by which to do so has
expired. (See generally Docket Sheet.)
After carefully reviewing the relevant papers herein,
including Magistrate Judge Lovric's thorough ReportRecommendation, the Court can find no clear error in
the Report-Recommendation. 1 Magistrate Judge Lovric
employed the proper standards, accurately recited the facts,
and reasonably applied the law to those facts. As a result,
the Report-Recommendation is accepted and adopted in its
entirety for the reasons set forth therein.

When no objection is made to a reportrecommendation, the Court subjects that reportrecommendation to only a clear-error review. Fed.
R. Civ. P. 72(b), Advisory Committee Notes: 1983
Addition. When performing such a clear-error
review, “the court need only satisfy itself that there
is no clear error on the face of the record in order to
accept the recommendation.” Id.; see also Batista
v. Walker, 94-CV-2826, 1995 WL 453299, at *1
(S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am
permitted to adopt those sections of [a magistrate
judge's] report to which no specific objection is
made, so long as those sections are not facially
erroneous.”) (internal quotation marks omitted).

ACCORDINGLY, it is
ORDERED that Magistrate Judge Lovric's ReportRecommendation (Dkt. No.7) is ACCEPTED and
ADOPTED in its entirety; and it is further
ORDERED that the following claims are DISMISSED
with prejudice and without prior leave to amend: (1)
Plaintiff's claims against the State of New York; (2) Plaintiff's
claims against Defendants Filli, Hurley, and McCrindle in
their official capacities; and (3) Plaintiff's claims against
Defendants Sharp and Soares in their official and individual
capacities; and it is further
ORDERED that the following claims are DISMISSED
without prejudice to repleading during the pendency of
this action and with leave to amend within THIRTY
(30) DAYS of the date of this Decision and Order: (1)
Plaintiff's fabrication-of-evidence claims against Defendants
Filli, Hurley and McCrindle in their individual capacities
to the extent that those claims relate to the case against
Plaintiff in the Town of Guilderland; (2) Plaintiff's false arrest
claims against Defendants Filli and Hurley in their individual
capacities; (3) Plaintiff's claim for a Miranda violation against
Defendant McCrindle in his individual capacity; and it is
further
*2 ORDERED that SURVIVING this Decision and
Order are Plaintiff's fabrication-of-evidence claims against
Defendants Filli, Hurley and McCrindle in their individual
capacities to the extent that those claims relate to the case
against Plaintiff in the City of Albany; and it is further
ORDERED that the Clerk of Court is directed to issue
Summonses and forward, along with copies of the Complaint,

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Gentry v. New York, Not Reported in Fed. Supp. (2021)
2021 WL 3032691

to the U.S. Marshal for service upon Defendants Filli, Hurley
and McCrindle, and those Defendants are directed to respond
in accordance with the Federal Rules of Civil Procedure.

End of Document

All Citations
Not Reported in Fed. Supp., 2021 WL 3032691

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2

Abbas v. U.S., Not Reported in F.Supp.3d (2014)
2014 WL 3858398

the manner in which they are bound, which would
make scanning them very difficult, the Court has
not required the Clerk's Office to scan them into the
court's electronic filing system. They will instead
be maintained in paper form in a separate file in the
Clerk's Office. See note to Docket No. 6.

2014 WL 3858398
Only the Westlaw citation is currently available.
United States District Court,
W.D. New York.
Shariff ABBAS, Plaintiff,
v.
UNITED STATES of America, Defendant.
No. 10–CV–0141S.
|
Signed Aug. 1, 2014.
Attorneys and Law Firms
Shariff Abbas, Flushing, NY, pro se.

DECISION and ORDER
WILLIAM M. SKRETNY, Chief Judge.
INTRODUCTION
*1 Plaintiff Shariff Abbas commenced this pro se action
pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§§ 1346(b), 2671 et seq., and other federal laws, alleging
violation of his rights while detained at the Buffalo Federal
Detention Facility (“BFDF”) in Batavia, the Albany County
Jail and the Perry County Correctional Center (“PCCC”) in
Uniontown, Alabama. Currently before the Court for review
pursuant to 28 U.S.C. § 1915(e)(2)(B) is plaintiff's amended
complaint 1 , submitted in response to the Court's Order filed
on August 16, 2013 (“August 16 Order”) (Docket No. 6),
which reviewed plaintiff's original complaint (Docket No. 4),
dismissed several of the claims asserted therein, and granted
plaintiff leave to file an amended complaint. For the reasons
set forth below, plaintiff's FTCA claims against the United
States related to his treatment at the BFDF may proceed and
his remaining claims will be dismissed.
1

Plaintiff's amended complaint is accompanied
by two voluminous bound volumes of exhibits
captioned “Exhibit's [sic] Part 1”, containing a
Table of Contents and exhibits 1–18 and “Exhibit
Part 2”, containing a Table of Contents and
exhibits 19–40. Given the voluminous nature of
the exhibits, numbering hundreds of pages, and

DISCUSSION
A. Bivens Claims
The August 16 Order directed, inter alia, that plaintiff's
FTCA claims stemming from his detention at the Albany
County Jail and the PCCC be dismissed; that plaintiff be
granted leave to file an amended complaint adding Bivens 2
or other federal claims against individual deportation officers
and other personnel at BFDF who he alleges violated his
rights; and that in the even he failed to timely file an
amended complaint as directed, the Court would issue an
Order directing service of the complaint upon the United
States as the sole defendant to his medical malpractice claims
brought under the FTCA. (Docket No. 5).
2

Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999,
29 L.Ed.2d 619 (1971).

The August 16 Order noted that in addition to his FTCA
claims, plaintiffs original complaint asserted a variety
of violations of his constitutional rights by individual
deportation officers and other personnel during his periods
of detention at BFDF and that these claims would be
actionable against individual defendants under the Bivens
doctrine, which allows a plaintiff to pursue constitutional
claims against federal officials in their individual capacities
for actions taken under color of federal law. See Lombardi
v. Whitman, 485 F.3d 73, 78 (2d Cir.2007) (“[W]here an
individual ‘has been deprived of a constitutional right by
a federal agent acting under color of federal authority,’ the
individual may bring a so-called Bivens action for damages
against that federal agent in an individual capacity, provided
that Congress has not forbidden such an action and that the
situation presents ‘no special factors counseling hesitation in
the absence of affirmative action by Congress.’ ”) (internal
citations omitted) (quoting Thomas v. Ashcroft, 470 F.3d 491,
496 (2d Cir.2006). The Court determined, however, that the
Bivens claims could not proceed because of plaintiff's failure
to name the individual custody officers and other officials
who are alleged to have violated his rights as defendants in

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1

Abbas v. U.S., Not Reported in F.Supp.3d (2014)
2014 WL 3858398

the caption of the complaint, as required by Rule 10(a) of the
Federal Rules of Civil Procedure:
*2 The Court cannot allow such Bivens claims to
proceed, however, because of plaintiff's failure to name
the individual custody officers and other officials who are
alleged to have violated his rights as defendants in the
caption of the complaint. Rule 10 of the Federal Rules of
Civil Procedure provides that “[t]he title of the complaint
must name all the parties” Fed.R.Civ.P. 10(a). Therefore,
a party that is not named in the caption of a complaint or
amended complaint is not a party to the action.
(August 16 Order at 16) (citations omitted). The Court
proceeded to note that plaintiff's failure to name in the caption
of the complaint the individual defendants against whom
he wished to assert Bivens claims would make it infeasible
for the Court to determine which of the individual custody
officers mentioned in the body of the complaint should be
deemed to be defendants to such claims, given the often
ambiguous nature of his reference to such individuals. (Id.
at 16–17). The Court therefore concluded that “[t]he way to
remedy plaintiff's failure to name as defendants in the caption
of his complaint those individuals against whom he may seek
to assert Bivens claims, as suggested by the allegations set
forth in the body of the complaint, is to afford him leave to file
an amended complaint which conforms to the requirements
of Rule 10(a).” (Id. at 17) (citations omitted). “Accordingly,
plaintiff will be afforded the opportunity to file, as directed
below, an amended complaint in which he shall name in
the caption of the complaint, each of the individuals against
whom he intends to assert a Bivens claim or claims, in a
manner that conforms to the requirements of Rules 8(a) and
10(a) of the Federal Rules of Civil Procedure.” (Id.).

specific allegations with respect to
how those individuals violated his
rights.

(Id. at 21). (emphasis added).
While plaintiff's amended complaint contains allegations that
would support Bivens claims (see Amended Complaint, ¶¶
17–42 passim ), 3 it does not name in the caption of the
complaint any individuals against whom plaintiff is seeking
to assert Bivens clams, nor does the section of the complaint
captioned “PARTIES” list any individual defendants. While
plaintiff does, in the section of the amended complaint
captioned “CONCLUSION”, set forth a list of “Federal
Employees from (BFDF) Health Division” (Amended
Complaint ¶ 57), which includes individuals mentioned
elsewhere in the amended complaint in connection with
plaintiff's allegations that would be relevant to Bivens claims,
the individuals named therein are not listed as defendants in
the caption of the amended complaint or in plaintiff's recital
of the parties to this action at the beginning of the amended
complaint; as noted supra, plaintiff lists only one defendantthe United States-in the complaint caption and in his recital
of the parties. Moreover, plaintiff's statement of relief sought
at the end of the amended complaint (captioned “PRAYER”)
demands judgment “against the defendant.” (Id. at p. 16)
(emphasis added). 4
3

Plaintiff divides his claims into two sections
of the amended complaint, namely “Medical
Malpractice” (Amended Complaint, p. 3–5, ¶¶
8–16), which contains allegations supportive of
his FTCA claims, and “U.S. D.H.S.-ICE Federal
Agency and Custody Officers Abuses” (Id. at
p. 5–14, ¶¶ 17–56), which contains allegations
supportive of his Bivens constitutional claims.
The Court notes, however, that a number of the
allegations set forth in the “Federal Agency and
Custody Officers Abuses” section of the complaint
are relevant to his FTCA malpractice claims. See,
e.g., Amended Complaint, ¶ 21.

4

Plaintiff's failure to include in the caption of the
amended complaint the names of any defendants
against whom he is asserting Bivens claims is not
the only instance of his disregard of the Court's
directives regarding the form and content of his

The Court accordingly directed, in the Conclusion of the
August 16 Order, that plaintiff be given leave to file an
amended complaint conforming to the requirements of Rules
8 and 10 of the Federal Rules of Civil Procedure, and the
Court again explicitly advised plaintiff of his duty to list all
defendants in the caption of the complaint:

Plaintiff is reminded, as explained
above, that if he wishes to assert Bivens
or other claims against defendants
other than the United States in the
amended complaint, he must name
those individuals in the caption of
the amended complaint and set forth

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2

Abbas v. U.S., Not Reported in F.Supp.3d (2014)
2014 WL 3858398

amended complaint. The August 16 Order noted
that many of the Bivens claims that plaintiff's
allegations would support against individuals
identified in the body of the complaint appeared
to be barred by the statute of limitations. August
16 Order at 18. The Court accordingly directed as
follows:
In the amended complaint that plaintiff
will be given leave to file, as provided
below, in which he must demonstrate either
that his Bivens claims stemming from his
incarceration at BFDF are timely or, if any
such Bivens claims are untimely, he must
allege facts demonstrating why equitable
tolling should be applied to the statute of
limitations periods for such claims.
(August 16 Order at 19). As noted supra, the
August 16 Order provided that plaintiff would
be given leave to file an amended complaint
with respect to his Bivens claims, and plaintiff
was further advised, in this regard, “that he
should address the timeliness of any Bivens
claims that he asserts in the amended complaint
and any argument as to why the limitations
period applicable to such claims should be
equitably tolled.” (August 16 Order at 21).
However, plaintiff's amended complaint does not
address the timeliness issue or offer any basis
for equitable tolling of the limitations period.
Given the Court's dismissal herein of the Bivens
claims based upon plaintiff's failure to identify
the defendants against whom he seeks to assert
such claims, the Court need not further address
the timeliness issue.
Plaintiff further disregarded the August 16 Order
to the extent that he reasserts claims stemming
from his detention at the Albany County Jail
from February 21, 2006–March 21, 2006, and
the Perry County Correctional Center (“PCCC”)
in Uniontown Alabama from August 5, 2006–
February 9, 2007. (Amended Complaint at ¶¶ 14,
15, 28–40). The August 16 Order dismissed the
claims stemming from plaintiff's incarceration at
those facilities pursuant to 28 U.S.C. § 1406(a)
for improper venue. (August 16 Order at 13–14).
Those claims remain dismissed.
*3 The Court's duty to construe liberally the pleadings of
pro se litigants does not absolve pro se litigants from the
duty to comply with the requirements of the Federal Rules

of Civil Procedure and court orders issued pursuant to those
rules. See, e .g., Caidor v. Onondaga County, 517 F.3d 601,
605 (2d Cir.2008) (noting that pro se litigants are required to
familiarize themselves with procedural rules and comply with
such rules); McDonald v. Head Criminal Court Supervisor
Officer, 850 F.2d 121, 124 (2d Cir.1988) (“[W]hile pro se
litigants may in general deserve more lenient treatment than
those represented by counsel, all litigants, including pro ses,
have an obligation to comply with court orders. When they
flout that obligation they, like all litigants, must suffer the
consequences of their actions.”)). As discussed supra, this
Court's previous order explained to plaintiff the requirement
of Rule 10(a) that all defendants to an action be named and
identified as such in the caption to the complaint, and the
Court afforded him the opportunity to cure the defect in his
initial complaint by filing an amended complaint naming
all defendants. Plaintiff has inexplicably failed to comply
with the Court's order and the requirement of Rule 10(a).
Accordingly, to the extent that plaintiff seeks to bring Bivens
claims against individual Custody Officers and other BFDF
officials, see Amended Complaint, ¶ 58 (“Plaintiff want [sic]
this Court to bring Justice against Federal Agency Employees
who Violate constitutional law against Plaintiff's rights”),
such claims must be dismissed in light of his failure to
name those individuals as defendants in the caption of the
amended complaint. See, e.g., Ferdik v. Bonzelet, 963 F.2d
1258, 1262–63 (9th Cir.1992) (dismissing action for refusal
to comply with court orders to name defendants in the caption
as required by Rule 10(a)).
Moreover, as explained in the August 16 Order (pp. 14–
15), constitutional claims under Bivens cannot be brought
against the only defendant named in the complaint, the
United States. See Robinson v. United States Bur. Of Prisons,
244 F.Supp.2d 57, 66 (N.D.N.Y.2003) (“[A] Bivens action
may not be maintained against the United States.”) (citing
Washington v. DEA, 183 F.3d 868, 872 n. 8 (8th Cir.1999).
Nor can constitutional claims be asserted against the United
States under the FTCA. See Washington, 183 F.3d at 873;
Russ v. United States, 62 F.3d 201, 204 (7th Cir.1995)
(“[C]onstitutional wrongs cannot be remedied through the
FTCA,”) (citing FDIC v. Meyer, 510 U.S. 471, 476, 114 S.Ct.
996, 1001–02, 127 L.Ed.2d 308(1994)).
Plaintiff having thus having failed to name a proper defendant
to his Bivens claims, the Court concludes that his Bivens
claims must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)
(B) for failure to state a claim on which relief can be granted.

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3

Abbas v. U.S., Not Reported in F.Supp.3d (2014)
2014 WL 3858398

B. Treaty Claims
The Conclusion section of the amended complaint invokes,
as a basis for relief against defendant United States not
raised in plaintiffs original complaint, treaties to which
the United States is a signatory. Specifically, the amended
complaint states “At such time and places the United States
violates International Laws as A[sic] result the United
States are not in compliance with Refugee Convention
Requirements or The United Nations Convention against
Torture Prohibitions.” (Amended Complaint, § 57). It is
well established that the United Nations Convention Against
Torture and Other Cruel, Inhumane or Degrading Treatment
or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, 23 I.L.M.
1027, (“CAT”) does not give rise to a private right of action.
Renkel v. United States, 456 F.3d 640, 644 (6th Cir.2006)
(“As the Articles [of CAT] are not self-executing, they do
not create private rights of action; therefore, any private
lawsuit seeking to enforce the United States' obligations under
the Convention must be based on domestic law.”); Wolinski
v, Junious, 2012 U.S. Dist. LEXIS 65889, at *18–19,2012
WL 1657576 (E.D.Cal. May 10, 2012) (“The CAT does not
give rise to a private right of action because it is not selfexecuting.) (citing Akhtar v. Reno, 123 F.Supp.2d 191, 196
(S.D.N.Y.2000),
*4 The United Nations Convention Relating to the Status
of Refugees, adopted July 28, 1951, art. 26, 19 U.S.T.
6259, 6576, 189 U.N.T.S. 150, 172 (“Refugee Convention”)
likewise does not create a private right of action. United States
v. Casaran–Rivas, 311 Fed. Appx. 269, 272 (11th Cir.2009)
(unpublished) (“[A]rgument that the indictment violated the
refugee Convention and CAT Treaty is without merit, as the
Refuge[e] Convention and CAT Treaty are not self-executing,
or subject to relevant legislation, and, therefore, do not confer
upon aliens a private right of action to allege a violation of
their terms.”); Reyes–Sanchez v. Ashcroft, 261 F.Supp.2d 276,
288–89 (S.D.N.Y.2003) (“Because the Refugee Convention
is not self-executing, it does not create individual rights.”).
Accordingly, plaintiff's claims against the United States under
CAT and Refugee Convention are dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B) for failure to state a claim on which
relief may be granted.
C. FTCA Claims

The medical malpractice-related claims under the FTCA
asserted by plaintiff in the amended complaint and stemming
from his detention at BFDF may go forward against defendant
United States. 5
5

As explained in the August 16 Order, plaintiff's
allegations of medical malpractice and the failure
to properly treat his serious medical condition are
clearly cognizable under the FTCA when asserted
against the United States. (August 16 Order at 6).

ORDER
IT IS HEREBY ORDERED, that plaintiff's Bivens claims are
dismissed with prejudice;
FURTHER, that plaintiff's claims under CAT and the Refugee
Convention are dismissed with prejudice;
FURTHER, that the Clerk of the Court is directed to complete,
on plaintiff's behalf, and to issue, a summons for service of
process on defendant United States of America;
FURTHER, the Clerk of the Court is directed to send copies
of the Summons, Amended Complaint, 6 and this Order by
certified mail to the following, pursuant to Rule 4(i) of the
Federal Rules of Civil Procedure:
6

As explained in n. 1, supra, plaintiff's voluminous
exhibits to the amended complaint are maintained
in paper form in a separate file folder in the Clerk's
Office.

• Attorney General of the United States, Main Justice
Building, 10th and Constitution Avenues N.W., Washington,
DC 20530;
• Civil Process Clerk, United States Attorney for the Western
District of New York, United States Attorney's Office, USAO/
WDNY, 138 Delaware Avenue, Buffalo, New York 14202.
SO ORDERED.
All Citations
Not Reported in F.Supp.3d, 2014 WL 3858398

End of Document

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4

Whitley v. Krinser, Not Reported in F.Supp.2d (2007)
2007 WL 2375814

2007 WL 2375814
Only the Westlaw citation is currently available.
United States District Court,
W.D. New York.
Vidal WHITLEY, Plaintiff,
v.
Major KRINSER, Sgt. Robin Brown, Captain Winters,
Corporal Conklin, Deputy Johnson, Lt. Prinzi, Corporal
Carlo, Lt. Santillo, Sgt. Garcia, Major Kasacey,
Corporal Peck, and Deputy Galling, Defendants.
No. 06-CV-0575F.
|
Aug. 15, 2007.
Attorneys and Law Firms
Vidal Whitley, Willard, NY, pro se.

may be granted. Despite direction to specify what Krinser,
Kasacey and Peck were responsible for, plaintiff's second
amended complaint does not allege sufficient facts to state
claims against Krinser, Kasacey and Peck.
In addition, plaintiff was directed that his second amended
complaint “should name in the caption all of the people
plaintiff wishes to hold responsible for each violation.
Plaintiff has alleged that people who are not named in the
caption were responsible for violation his rights. However,
if these people are not also named in the caption of the
second amended complaint, they will not be defendants in the
case.” (Docket No. 11.) Because plaintiff has not named any
additional defendants in the second amended complaint, has
not included the allegations against the remaining defendants
named in his amended complaint, and has failed to state a
claim against Krinser, Kasacey and Peck, the second amended
complaint is dismissed in its entirety. However, because of
plaintiff's pro se status and his minimal literacy, the Court
will deem the amended complaint the operative pleading in
this case and allow it to proceed against all named defendants
except Krinser, Kasacey and Peck.

DECISION and ORDER
WILLIAM M. SKRETNY, United States District Judge.
INTRODUCTION
*1 By an Order dated February 8, 2007, plaintiff pro se Vidal
Whitley was granted permission to file a second amended
complaint in this action pursuant to 42 U.S.C. § 1983 to
specifically address issues relating to defendants Kasacey,
Krinser and Peck. For the reasons stated below, plaintiff's
second amended complaint is dismissed and the amended
complaint is allowed to go forward at this stage against all
named defendants except as to defendants Krinser, Kasacey
and Peck.

DISCUSSION
Section 1915(e) (2)(B) of 28 U.S.C. provides that the Court
shall dismiss a case in which in forma pauperis status has been
granted if, at any time, the Court determines that the action
“(ii) fails to state a claim upon which relief may be granted.”
Based on its evaluation of the complaint, the Court finds
that plaintiffs claims against defendants Krinser, Kasacey and
Peck must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)
(B)(ii) because they fail to state a claim upon which relief

CONCLUSION
For the reasons set forth above, plaintiffs claims against
defendants Krinser, Kasacey and Peck are dismissed pursuant
to 28 U.S.C. § 1915(e)(2)(B) and the amended complaint shall
be served on the remaining defendants set forth in the caption
above.

ORDER
IT HEREBY IS ORDERED, that the claims against Krinser,
Kasacey and Peck are dismissed with prejudice pursuant to
28 U.S.C. § 1915(e)(2)(B); and,
FURTHER, the Clerk of the Court is directed to correct the
docket to reflect that Sgt. Robin Brown, Captain Winters,
Corporal Conklin, Deputy Johnson, Lt. Prinzi, Corporal
Carlo, Lt. Santillo, Sgt. Garcia and Deputy Galling are
defendants in this action; and,
FURTHER, the Clerk of the Court is directed to cause the U.S.
Marshal to serve the amended complaint (Docket No. 10) and
this Order upon the remaining defendants, Sgt. Robin Brown,
Captain Winters, Corporal Conklin, Deputy Johnson, Lt.

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1

Whitley v. Krinser, Not Reported in F.Supp.2d (2007)
2007 WL 2375814

Prinzi, Corporal Carlo, Lt. Santillo, Sgt. Garcia and Deputy
Galling.
*2 SO ORDERED.
End of Document

All Citations
Not Reported in F.Supp.2d, 2007 WL 2375814
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2

Robles v. Armstrong, Not Reported in F.Supp.2d (2006)
2006 WL 752857

2006 WL 752857
Only the Westlaw citation is currently available.
United States District Court, D. Connecticut.
Eddie ROBLES
v.
John ARMSTRONG, et al.
No. 3:03 CV 1634(DFM).
|
March 17, 2006.

RULING ON DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT
MARTINEZ, Magistrate J.
*1 The plaintiff, Eddie Robles, has filed this civil rights
action pro se and in forma pauperis pursuant to 28
U.S.C. § 1915 against Former Commissioner of Correction
John Armstrong, Warden Brian K. Murphy, Nurse Barbara
LaFrance and Dr. Tatyana Katsnelson. 1 He alleges inter alia
that defendants LaFrance and Katsnelson failed to inform him
of his elevated liver function tests in January 2002 and the
possibility that he was infected with Hepatitis C. Pending is
a motion for summary judgment filed by the defendants. For
the reasons that follow, the motion for summary judgment is
granted.
1

John Armstrong, Brian K. Murphy, Barbara
LaFrance and Tatyana Katsnelson are the only
defendants named in the caption of the amended
complaint. The plaintiff refers to John Doe/
Jane Doe of the Correctional Managed Health
Care Program and John Doe/Jane Doe Members
of the Revitalization Committee in the body
of the amended complaint. Rule 10(a) of the
Federal Rules of Civil Procedure requires that all
defendants be listed in the caption of the complaint.
Because the John and Jane Does are not listed in
the caption of the amended complaint, they are
not defendants and the court does not consider
claims against them. However, even if the plaintiff
had included the John/Jane Does in the caption of
the complaint, he never identified them by name
or served them with the complaint. Thus, any

claims against them would be subject to dismissal
pursuant to Rule 4(m), Fed.R.Civ.P.
I. Standard of Review
In a motion for summary judgment, the burden is on the
moving party to establish that there are no genuine issues
of material fact in dispute and that it is entitled to judgment
as a matter of law. See Rule 56(c), Fed.R.Civ.P.; Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); White v.
ABCO Engineering Corp., 221 F.3d 293, 300 (2d Cir.2000).
A court must grant summary judgment “ ‘if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with affidavits, if any, show that there is no
genuine issue as to any material fact....” ’ Miner v. Glen
Falls, 999 F.2d 655, 661 (2d Cir.1993) (citation omitted). A
dispute regarding a material fact is genuine “ ‘if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.” ’ Aldrich v. Randolph Cent. Sch. Dist.,
963 F.2d 520, 523 (2d Cir.) (quoting Anderson, 477 U.S. at
248), cert. denied, 506 U.S. 965 (1992). After discovery, if the
nonmoving party “has failed to make a sufficient showing on
an essential element of [its] case with respect to which [it] has
the burden of proof,” then summary judgment is appropriate.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
When a motion for summary judgment is supported by
documentary evidence and sworn affidavits, the nonmoving
party “may not rest upon the mere allegations or denials of
the adverse party's pleading, but the adverse party's response,
by affidavits or as otherwise provided in this rule, must set
forth specific facts showing that there is a genuine issue for
trial.” Fed.R.Civ.P. 56(e); see also Anderson, 477 U.S. at 256.
The nonmoving party must present “significant probative
evidence to create a genuine issue of material fact.” Soto v.
Meachum, Civ. No. B–90–270 (WWE), 1991 WL 218481, at
*6 (D.Conn. Aug. 28, 1991). A party may not rely “on mere
speculation or conjecture as to the true nature of the facts to
overcome a motion for summary judgment.” Knight v. U.S.
Fire Ins. Co., 804 F.2d 9, 12 (2d Cir.1986), cert. denied, 480
U.S. 932 (1987).
The court resolves “all ambiguities and draw[s] all inferences
in favor of the nonmoving party in order to determine how
a reasonable jury would decide.” Aldrich, 963 F.2d at 523.
Thus, “[o]nly when reasonable minds could not differ as to the
import of the evidence is summary judgment proper.” Bryant
v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S.
849 (1991). See also Suburban Propane v. Proctor Gas, Inc.,
953 F.2d 780, 788 (2d Cir.1992). A party may not create a

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1

Robles v. Armstrong, Not Reported in F.Supp.2d (2006)
2006 WL 752857

genuine issue of material fact by presenting contradictory or
unsupported statements. See Securities & Exchange Comm'n
v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir.1978).
Nor may he rest on the “mere allegations or denials” contained
in his pleadings. Goenaga v. March of Dimes Birth Defects
Found., 51 F.3d 14, 18 (2d Cir.1995). See also Ying Jing
Gan v. City of New York, 996 F.2d 522, 532 (2d Cir.1993)
(holding that party may not rely on conclusory statements or
an argument that the affidavits in support of the motion for
summary judgment are not credible).
*2 Where one party is proceeding pro se, the court reads
the pro se party's papers liberally and interprets them to
raise the strongest arguments suggested therein. See Burgos v.
Hopkins, 14 F.3d 787, 790 (2d Cir.1994). Despite this liberal
interpretation, however, a “bald assertion” unsupported by
evidence, cannot overcome a properly supported motion for
summary judgment. Carey v.. Crescenzi, 923 F.2d 18, 21 (2d
Cir.1991).
II. Facts 2
2
The facts are taken from defendants' Local Rule
56(a) 1 Statement [doc. # 20–2] and the Affidavits
of Dr. Edward Blanchette [doc. # 20–3], the
Affidavit of Dr. Tatyana Katsnelson [doc. # 20–
4] and the Affidavit of Barbara LaFrance [doc.
# 20–5]. The defendants filed their motion for
summary judgment on June 14, 2005. On June 21,
2005, the court provided the plaintiff with notice
of his obligation to respond to the motion and of
the contents of a proper response. The plaintiff
has failed to respond to the motion. Because
the plaintiff has not responded with evidence
or submitted a Local Rule 56(a) 2 Statement,
defendants' facts are deemed admitted. See D.
Conn. L. Civ. R. 56(a)1 (“All material facts set
forth in said statement will be deemed admitted
unless controverted by the statement required to be
served by the opposing party in accordance with
Rule 56(a) 2.”)
Dr. Tatyana Katsnelson is a physician licensed to practice
medicine in the State of Connecticut. In 2002, she was
employed part-time with the Correctional Managed Health
Care Program and assigned to Walker Correctional Institution
(“Walker”) in Suffield, Connecticut.
Barbara LaFrance is an Advanced Practice Registered Nurse
licensed to practice in the State of Connecticut. She was

employed with the Correctional Managed Health Care
Program and assigned to Walker from July 1998 through
March 2004.
Dr. Edward Blanchette has been licensed to practice medicine
in the State of Connecticut since 1975 and is board certified
in Internal Medicine and Infectious Diseases. In 1984, Dr.
Blanchette began working for the State of Connecticut
Department of Correction and has held various medical
positions within the Department since then. He is currently
the Director of Clinical and Professional Services for the
Department of Correction.
Brian Murphy is currently the Deputy Commissioner of
the Operations Division of the Department of Correction.
Between May 2001 and April 2003, he was employed as
the Lead Warden at the MacDougall–Walker Correctional
Complex in Suffield, Connecticut. Defendant Murphy had
no written or verbal contact with the plaintiff and was not
involved in any medical treatment provided to him during his
incarceration in either MacDougall Correctional Institution
(“MacDougall”) or Walker during the months from January
to March 2002.
On December 26, 2001, the plaintiff was re-admitted to the
Department of Correction and confined to the New Haven
Correctional Center after having been released on bond in
April 2001. On January 7, 2002, prison officials transferred
the plaintiff to Walker. Upon plaintiff's admission to Walker,
a nurse noted plaintiff's prior drug use and that the medical
personnel at New Haven Correctional Center had prescribed
the plaintiff Zantac and Maalox Plus to be taken on a daily
basis. The plaintiff reported no complaints.
On January 17, 2002, the plaintiff underwent routine blood
tests which revealed elevated liver enzyme levels. The
elevated enzyme levels could have been attributed to a
number of factors such as prior alcohol or drug abuse or the
ingestion of the medication the plaintiff had been prescribed
at New Haven Correctional Center.
On January 22, 2002, Dr. Katsnelson examined the plaintiff
to determine the cause of his stomach pain. Dr. Katsnelson
noted that the plaintiff had a history of peptic ulcer disease.
Dr. Katsnelson re-ordered Zantac and Maalox for the plaintiff,
ordered a H Pylori titer test to determine whether the plaintiff
had bacteria that might be the cause of an ulcer and issued
a new order for routine blood work because the first blood
work results had not yet been forwarded to the prison from

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2

Robles v. Armstrong, Not Reported in F.Supp.2d (2006)
2006 WL 752857

the lab. The plaintiff's test results were positive for H. Pylori
infection.
*3 On February 14, 2002, the plaintiff was examined
by Nurse LaFrance. The plaintiff reported that he was
experiencing less pain in his stomach. Nurse LaFrance
discussed with the plaintiff the option of treating the H Pylori
infection with antibiotics. The plaintiff agreed to start the
antibiotic treatment.
In 2002, the Correctional Managed Health Care Program
followed guidelines recommended by the National Institute
for Health in managing and treating chronic Hepatitis C. To
determine whether an inmate who had tested positive for
Hepatitis C was a candidate for Hepatitis C therapy, medical
personnel were required to perform two or more liver enzyme
tests spaced at least six months or more apart.
The results of the second round of blood work revealed
elevated liver enzyme levels, but lower levels than the results
of the first round of blood work. Less than two months after
the plaintiff's arrival at Walker, on March 4, 2002, prison
officials transferred the plaintiff to MacDougall. Neither
Nurse LaFrance nor Dr. Katsnelson had any contact with the
plaintiff after March 4, 2002. On March 14, 2002, prison
officials transferred the plaintiff to the Corrigan Correctional
Institution.
On April 14, 2003, the plaintiff was incarcerated at Cheshire
Correctional Institution (“Cheshire”). He complained about
his cellmate who had tested positive for Hepatitis C. Lab
tests performed that same day revealed that the plaintiff was
positive for Hepatitis C. In August 2003, a physician at
Cheshire completed initial paperwork to permit the plaintiff to
complete a diagnostic evaluation to determine his eligibility
for Hepatitis C therapy. On March 24, 2004, the Hepatitis
C Utilization Review Board (“Hep CURB”) approved the
plaintiff for a liver biopsy. The liver biopsy performed in
April 2004 showed very mild liver disease. On May 12, 2004,
Hep CURB approved the plaintiff for Hepatitis C Therapy.
III. Discussion
The defendants raise three grounds in support of their motion
for summary judgment. They argue that (1) the Eleventh
Amendment bars any claims for monetary damages against
them in their official capacities; (2) they were not deliberately
indifferent to plaintiff's medical needs; (3) the court should
not exercise supplemental jurisdiction over any state law
claims and (4) they are entitled to qualified immunity.

A. Claims Barred By Eleventh Amendment
The plaintiff names the defendants in their individual and
official capacities. The defendants contend that the Eleventh
Amendment bars a damage award against the defendants in
their official capacities.
Generally, a suit for recovery of money may not be maintained
against the state itself, or against any agency or department of
the state, unless the state has waived its sovereign immunity
under the Eleventh Amendment. See Florida Dep't of State
v. Treasure Salvors, 458 U.S. 670, 684 (1982). Section 1983
does not override a state's Eleventh Amendment immunity.
See Quern v. Jordan, 440 U.S. 332, 342 (1979). The Eleventh
Amendment immunity which protects the state from suits for
monetary relief also protects state officials sued for damages
in their official capacity. See Kentucky v. Graham, 473 U.S.
159 (1985). A suit against a defendant in his official capacity
is ultimately a suit against the state if any recovery would be
expended from the public treasury. See Pennhurst State Sch.
& Hosp. v. Halderman, 465 U.S. 89, 101 n. 11 (1984).
*4 The plaintiff's claims for monetary damages against
the defendants in their official capacities are barred by
the Eleventh Amendment. Defendants' motion for summary
judgment is granted as to all claims for damages against the
defendants in their official capacities.
B. Failure to State a Claim of Deliberate Indifference to
Medical Needs
The defendants argue that the plaintiff did not suffer from a
serious medical need as a result of the alleged failure of Dr.
Katsnelson and Nurse LaFrance to refer him for a Hepatitis
C evaluation in January 2002. They also contend that even
if plaintiff's condition was serious, they were not deliberately
indifferent to that condition.
The Eighth Amendment protects inmates from deliberate
indifference by prison officials to their serious medical needs.
See Estelle v. Gamble, 429 U.S. 97, 104 (1976). To prevail
on such a claim, the plaintiff must allege “acts or omissions
sufficiently harmful to evidence deliberate indifference to
serious medical needs.” Id. at 106. A prisoner must show
intent to either deny or unreasonably delay access to needed
medical care or the wanton infliction of unnecessary pain by
prison personnel. See id. at 104–05. Mere negligence will
not support a section 1983 claim; the conduct complained of
must “shock the conscience” or constitute a “barbarous act.”

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Robles v. Armstrong, Not Reported in F.Supp.2d (2006)
2006 WL 752857

McCloud v. Delaney, 677 F.Supp. 230, 232 (S.D.N.Y.1988)
(citing United States ex rel. Hyde v. McGinnis, 429 F.2d 864
(2d Cir.1970)). A treating physician will be liable under the
Eighth Amendment only if his conduct is “repugnant to the
conscience of mankind.” Tomarkin v. Ward, 534 F.Supp. 1224,
1230 (S.D.N.Y.1982) (quoting Estelle, 429 U.S. at 105–06).
The civil rights statute was not meant to redress medical
malpractice claims that can be adequately resolved under state
tort law. Tomarkin, 534 F.Supp. at 1230–31. Thus, a claim
of misdiagnosis, faulty judgment, or malpractice without
more to indicate deliberate indifference, is not cognizable
under section 1983. See McCabe v. Nassau County Medical
Center, 453 F.2d 698, 704 (2d Cir.1971); Tomarkin v. Ward,
534 F.Supp. 1224, 1230 (S.D.N.Y.1982). In addition, mere
disagreement with prison officials about what constitutes
appropriate medical care does not state a claim cognizable
under the Eighth Amendment. See Hyde v. Mcinnis, 429 F.2d
864, 868 (2d Cir.1970); Corby v. Conboy, 457 F.2d 251, 254
(2d Cir.1972); Ross v. Kelly, 784 F.Supp. 35, 44 (W.D.N.Y.),
aff'd, 970 F.2d 896 (2d Cir.), cert. denied, 506 U.S. 1040
(1992).
There are both subjective and objective components to the
deliberate indifference standard. See Hathaway v. Coughlin,
37 F.3d 63, 66 (2d Cir.1994), cert. denied sub nom. Foote
v. Hathaway, 513 U.S. 1154 (1995). The alleged deprivation
must be “sufficiently serious” in objective terms. Wilson
v. Seiter, 501 U.S. 294, 298 (1991). Thus, “a prisoner
must first make [a] threshold showing of serious illness
or injury in order to state an Eighth Amendment claim
for denial of medical care.” Smith v. Carpenter, 316 F.3d
178, 184 (2d Cir.2003)(quoting Hudson v. McMillian, 503
U.S. 1, 9 (1992)). See also Nance v. Kelly, 912 F.2d 605,
607 (2d Cir.1990) (Pratt, J., dissenting) (“ ‘serious medical
need’ requirement contemplates a condition of urgency, one
that may produce death, degeneration, or extreme pain”).
The Second Circuit has identified several factors that are
highly relevant to the inquiry into the seriousness of a
medical condition: “ ‘[t]he existence of an injury that a
reasonable doctor or patient would find important and worthy
of comment or treatment; the presence of a medical condition
that significantly affects an individual's daily activities; or
the existence of chronic and substantial pain.” ’ Chance
v. Armstrong, 143 F.3d 698, 702 (2d. Cir.1998) (citation
omitted). In addition, where the denial of treatment causes
plaintiff to suffer a permanent loss or life-long handicap, the
medical need is considered serious. See Harrison v. Barkley,
219 F.3d 132, 136 (2d Cir.2000).

*5 In addition to demonstrating a serious medical need to
satisfy the objective component of the deliberate indifference
standard, an inmate also must present evidence that,
subjectively, the charged prison official acted with “a
sufficiently culpable state of mind.” Hathaway, 37 F.3d
at 66. “[A] prison official does not act in a deliberately
indifferent manner unless that official ‘knows and disregards
an excessive risk to inmate health or safety; the official must
both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and
he must also draw the inference.” ’ Id. (quoting Farmer v.
Brennan, 511 U.S. 825, 837 (1994)).
The defendants first argue that the plaintiff did not suffer from
a serious medical need or condition during the time period
that he was incarcerated at Walker from January 7, 2002 to
March 4, 2002. There is no evidence in plaintiff's medical
records that medical personnel diagnosed him as suffering
from Hepatitis C at any time during this period. The plaintiff
did not test positive for Hepatitis C until April 2003. Routine
blood tests performed on January 17, 2002, showed that the
plaintiff's AST and ALT liver enzyme levels were higher
than the normal range. On January 24, 2002, routine blood
tests revealed elevated AST and ALT liver enzyme levels, but
those levels were lower than the levels measured on January
17, 2002. The medical records reveal no comments by a
physician or nurse concerning the plaintiff's elevated liver
enzyme levels. The only complaints by the plaintiff during the
time period in question related to a sore throat and pain in his
stomach due to an ulcer. The plaintiff has failed to submit any
evidence to suggest that he suffered from a serious medical
condition during his incarceration at Walker from January 7,
2002 to March 4, 2002 or at MacDougall from March 4, 2002
to March 14, 2002.
Even if the plaintiff could prove that he suffered from
Hepatitis C during the period in question, he would not
have been a candidate for treatment under the Correctional
Managed Health Care Program Guidelines in effect at
that time. In 2002, the Correctional Managed Health Care
Program followed guidelines recommended by the National
Institute for Health in managing and treating chronic Hepatitis
C. To determine whether an inmate who had tested positive
for Hepatitis C was a candidate for Hepatitis C therapy,
medical personnel were required to perform two or more liver
enzyme tests spaced at least six months or more apart. The
plaintiff was incarcerated at Walker for less than two months
and MacDougall for less than two weeks. Thus, there was no

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Robles v. Armstrong, Not Reported in F.Supp.2d (2006)
2006 WL 752857

basis for the defendants to refer the plaintiff for evaluation
and treatment of Hepatitis C during those time periods.
The plaintiff has not met his burden of demonstrating that
there are genuine issues of material fact as to whether
he suffered from a serious medical condition during his
incarceration at Walker, when blood tests performed in
January 2002 revealed elevated liver enzyme levels. Thus, the
plaintiff has failed to state a claim of deliberate indifference to
a serious medical need. The defendants' motion for summary
judgment is granted as to all federal claims against the
defendants.
C. State Law Claims
*6 The defendants argue that the court should decline to
exercise jurisdiction over plaintiff's state law claims. The
plaintiff asserts claims that in June 2003, the defendants
denied his requests for copies of recent laboratory reports
in violation of Connecticut General Statutes § 4–193. The
plaintiff also claims that the defendants violated Connecticut
General Statutes § 19a–103 when they failed to treat him for
Hepatitis C.
Supplemental or pendent jurisdiction is a matter of discretion,
not of right. See United Mine Workers v. Gibbs, 383 U.S. 715,
End of Document

715–26 (1966). Where all federal claims have been dismissed
before trial, pendent state claims should be dismissed without
prejudice and left for resolution by the state courts. See 28
U.S.C. § 1367(c)(3); Giordano v. City of New York, 274 F.3d
740, 754 (2d Cir.2001) (collecting cases). Because the court
has dismissed all federal law claims, it declines to exercise
supplemental jurisdiction over the plaintiff's state law claims.
IV. Conclusion
The Motion for Summary Judgment [Doc. # 20] is
GRANTED. The court declines to exercise supplemental
jurisdiction over plaintiff's state law claims. The Clerk is
directed to close this case.
This is not a recommended ruling. The parties have consented
to the exercise of jurisdiction by a magistrate judge and the
case was transferred to the undersigned for all purposes on
March 1, 2005. (See Doc. # 18.)
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2006 WL 752857

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WILLIE THOMAS GOSIER, Plaintiff, v. WILLIAM PAOLOZZI, et..., Slip Copy (2024)
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2024 WL 340776
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
WILLIE THOMAS GOSIER, Plaintiff,
v.
WILLIAM PAOLOZZI, et al., Defendants.
9:23-CV-1135 (GTS/MJK)
|
Filed 01/30/2024
Attorneys and Law Firms
APPEARANCES:

(“Compl.”), Dkt. No. 4 (“IFP Application”). In the complaint,
plaintiff asserted First and Fourteenth Amendment claims
against defendants Senior Parole Officer William Paolozzi
(“Paolozzi”) and Parole Officer Anthony Stucchi (“Stucchi”).
See generally Compl.
By Decision and Order filed October 27, 2023, (the “October
Order”), the Court granted plaintiff's IFP application and
reviewed the sufficiency of the complaint in accordance with
28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A. See Dkt. No. 8.
On the basis of that review, the Court dismissed the complaint
for failure to state a claim upon which relief could be granted.
Id. In light of his pro se status, plaintiff was afforded an
opportunity to amend his complaint. Id. Plaintiff's amended
complaint is now before the Court for review. Dkt. No. 10
(“Am. Compl.”).

WILLIE THOMAS GOSIER, Plaintiff, pro se, 22-B-2574,
Elmira Correctional Facility, 1 P.O. Box 500, Elmira, NY
14902
1

On January 16, 2024, mail sent to plaintiff at
Oneida County Correctional Facility was returned
as “undeliverable.” Dkt. No. 12. A search of
the Inmate Information Database maintained by
the New York State Department of Corrections
and Community Supervision (“DOCCS”), using
plaintiff's Department ID Number (22-B-2574)
revealed that plaintiff is presently confined
at Elmira Correctional Facility. See https://
nysdoccslookup.doccs.ny.gov/ (last visited Jan. 25,
2024). Plaintiff is advised of his duty to inform the
Court of any address changes and his obligation
to continue to submit any address changes to the
court as long as his action is pending. N.Y.N.D.
L.R. 10.1(c)(2). “Failure to notify the Court of a
change of address in accordance with L.R. 10.1(c)
(2) may result in the dismissal of any pending
action.” N.Y.N.D. L.R. 41.2(b).

A. Legal Standard
The legal standard governing the dismissal of a pleading for
failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)
(B) and 28 U.S.C. § 1915A(b) was discussed at length in the
October Order and it will not be restated in this Decision and
Order. See Dkt. No. 8 at 4-6.
B. Summary of Amended Complaint 2
2

The amended complaint includes exhibits. See
Dkt. No. 10-1. To the extent that the exhibits are
relevant to the incidents described in the amended
complaint, the Court will consider the documents
attached as exhibits. See Cortec Indus., Inc. v.
Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991)
(the complaint is deemed to include any written
instrument attached to it as an exhibit or any
statements or documents incorporated in it by
reference).

With the amended pleading, plaintiff adds the following
new defendants: S.P.O. Nicholas Pezdek (“Pezdek”),
Administrative Law Judge Regina A. Rinaldi (“Rinaldi”), and

DECISION AND ORDER

Parole Revocation Specialist William Lappino (“Lappino”). 3
See Am. Compl. at 1. The following facts are set forth as
alleged by plaintiff in his amended complaint.

Glenn T. Suddaby U.S. District Judge
I. INTRODUCTION
*1 Pro se plaintiff Willie Thomas Gosier
commenced this action by filing a complaint
42 U.S.C. § 1983 (“Section 1983”) with a
leave to proceed in forma pauperis (“IFP”).

II. REVIEW OF THE AMENDED COMPLAINT

(“plaintiff”)
pursuant to
request for
Dkt. No. 1

3

The Clerk of the Court is directed to add these
individuals to the Docket Report.

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In April 2023, plaintiff was released from DOCCS custody to
community supervision after serving a sentence for criminal
possession of a controlled substance. 4 Dkt. No. 10-1 at 1. In
2023, plaintiff was residing with his grandmother in Utica,
NY. Am. Compl. at 2.
4

See https://nysdoccslookup.doccs.ny.gov/
visited Jan. 25, 2024).

(last

On June 6, 2023, between 8:00 a.m. and 4:30 p.m., Paolozzi,
Pezdek, and Stucchi altered the “terms” of plaintiff's release
and imposed a curfew. Am. Compl. at 1. Defendants also
increased plaintiff's the frequency of reporting requirements,
from once a month to once a week. Id. As a result, plaintiff
was charged with violating his curfew and missing his
reporting date for the birth of his nephew on June 7, 2023 and
his family reunion on June 20, 2023, June 21, 2023, and June
22, 2023. Id. at 1-2.
*2 On June 11, 2023, plaintiff was subjected to an “unlawful
traffic stop.” Am. Compl. at 1, 2. Plaintiff was parked
in his friend's driveway when he was arrested, searched,
and his vehicle was searched. Id. at 2. Plaintiff filed a
Section 1983 lawsuit related to the traffic stop against the
Utica Police Department (“UPD”), Officer Janiel Rodriguez,
Officer James Amuso, and Investigator Peter Paladino. Id.;
Gosier v. Utica Police Dep't, et al., No. 6:23-CV-1119 (DNH/
TWD), Dkt. No. 1 (N.D.N.Y. filed on Sept. 1, 2023) (“Gosier
I”). Gosier I is pending in this District. See Gosier I.
On June 26, 2023, plaintiff “turned [him]self into P.O.
Stucchi.” Am. Compl. at 3. Pezdek and Stucchi searched
plaintiff's cell phone. Id.
On July 7, 2023, plaintiff was charged with violating his
parole. Am. Compl. at 2. Stucchi accused plaintiff of using
a “mission address.” Id. Stucchi also claimed that plaintiff
changed his address without proper notification and “lost
contact” with his parole officer. Id. at 2-3.
On July 7, 2023, plaintiff appeared in Sherill City Court for a
Final Parole Revocation hearing. Am. Compl. at 3; Dkt. No.
10-1 at 9. Judge Rinaldi and Revocation Specialist Lappino
relied upon unlawful evidence, denied plaintiff the right to
counsel and a fair trial, and stated, “[y]ou're going to jail either
way.” Am. Compl. at 3. As a result, plaintiff was sentenced to
an eight month term of incarceration. Id. In a report dated July
12, 2023, Rinaldi included “false information in the analysis
section” and stated that an “absconder warrant” was enforced

on June 26, 2023. Am. Compl. at 3-4; Dkt. No. 10-1 at 1.
Plaintiff should have been released on October 8, 2023 but
was informed by “his P.O.” that he would not be released
before February 2024. Am. Compl. at 4.
Construed liberally, the amended complaint contains the
following: (1) Fourteenth Amendment due process claims;
(2) malicious prosecution claim against Stucchi; (3) Fourth
Amendment claims against Stucchi and Pezdek; (4) deliberate
indifference claim related to plaintiff's incarceration beyond
his maximum release date; and (5) First Amendment
retaliation claims. See generally Am. Compl. Plaintiff seeks
monetary damages and “to be relieved of all obligations to
parole.” See id. at 1, 4.
C. Analysis
1. Rule 10
Throughout the complaint, plaintiff refers to various
individuals and entities who are not identified in the caption,
or list of parties, as defendants. See Am. Compl. at 1, 5-8.
Plaintiff refers to UPD, Officer Peter Paladino, Officer T.
Ciccone, Sergeant Brazzeese, Officer Jariel Rodriguez, and
Chief of Police Mark Williams. See Am. Compl. at 6-8.
Because Rule 10(a) of the Federal Rules of Civil Procedure
provides that, “the title of the complaint must name all the
parties.” Fed. R. Civ. P. 10(a). A party not named in the
caption of the complaint is not a party to the action. Abbas v.
U.S., No. 10-CV-0141, 2014 WL 3858398, at *2 (W.D.N.Y.
Aug. 1, 2014) (holding that the failure to name the individual
defendants against whom the plaintiff intends to assert claims
makes it “infeasible for the Court to determine which of the
individual officers mentioned in the body of the complaint
should be deemed to be defendants to which claims”).
Accordingly, plaintiff's allegations and claims related to the
traffic stop on June 11, 2023 against any individual or entity
who is not named or identified in the complaint or caption,
as John Doe or otherwise, are dismissed for failure to state
a claim. See Whitley v. Krinser, No. 06-CV-0575, 2007
WL 2375814, at *1 (W.D.N.Y. Aug. 15, 2007); Robles v.
Armstrong, No. 3:03-CV-1634, 2006 WL 752857, at *1 n.1
(D. Conn. Mar. 17, 2006) (“Because the John and Jane Does
are not listed in the caption of the Complaint, they are not
defendants and the court does not consider claims against
them.”). As discussed supra, plaintiff filed a complaint in
this District related to the June 2023 traffic stop against the

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UPD, Rodriguez, and Paladino. See Gosier I, Dkt. No. 1.
The complaint in Gosier I contained a cause of action for
malicious prosecution and false arrest. Id. at 4. To the extent
that the amended complaint includes claims related to the June
2023 traffic stop against the defendants in Gosier I, those
claims are dismissed. See Phelan v. Hersh, No. 9:10-CV-0011
(GLS/RFT), 2011 WL 6031940, at *4 (N.D.N.Y. Sept. 13,
2011) (refusing to address claims because of the existence
of another pending action), report and recommendation
adopted, 2011 WL 6031071 (N.D.N.Y. Dec. 5, 2011).

2. Fourteenth Amendment - Conditions/Terms of Parole
*3 Construing the amended complaint liberally, plaintiff
argues that his due process rights were violated because the
terms of his parole were altered without notice. See Am.
Compl. at 4.
“The courts have [ ] consistently held that a parolee has
no constitutionally protected interest in being free from
special conditions of release.” Maldonado v. Fischer, No
11-CV-1091, 2012 WL 4461647, at *4 (W.D.N.Y. Sept.
24, 2012) (collecting cases). “[I]t is well-established that
‘the [New York] Parole Board's discretionary imposition of
special conditions is not subject to judicial review in the
absence of a showing that the board or its agents acted in
an arbitrary and capricious manner.’ ” Id. at *3. “[W]hile
Plaintiff does not have a protected liberty interest to be free
from special conditions of parole, he may have a viable due
process claim pursuant to § 1983 based on the substance of
the conditions and/or the basis for imposing such conditions.”
Singleton v. Doe, No. 14-CV-0303, 2014 WL 3110033, at
*3 (E.D.N.Y. July 7, 2014) (citation omitted). “[W]here the
condition is not related to the parolee's criminal history
or to the State's interests, it may be prone to tailoring
or invalidation.” Robinson v. New York, No. 09-CV-0455
(GLS/RFT), 2010 WL 11507493, at *6 (N.D.N.Y. Mar.
26, 2010) (collecting cases). The release conditions must
serve “legitimate interests of the parole regime such as
rehabilitat[ion] and ‘protection of the public tailored in light
of the conduct for which [Plaintiff] was convicted.” Trisvan
v. Annucci, 284 F.Supp.3d 288, 297 (E.D.N.Y. 2018) (citation
and internal quotation marks omitted).
Even assuming plaintiff sufficiently plead constitutional
claims related to the conditions of parole against Pezdek,
Paolozzi, and Stucchi, his due process claims are barred by
Heck v. Humphrey, 512 U.S. 477 (1994).

In Heck, the United States Supreme Court held as follows:

[I]n order to recover damages
for
allegedly
unconstitutional
conviction or imprisonment, or
for other harm caused by actions
whose unlawfulness would render
a conviction or sentence invalid, a
§ 1983 plaintiff must prove that
the conviction or sentence has been
reversed on direct appeal, expunged
by executive order, declared invalid
by a state tribunal authorized to
make such determination, or called
into question by a federal court's
issuance of a writ of habeas corpus,
28 U.S.C. § 2254.

512 U.S. at 486-87.
Although Heck held that the favorable-termination rule is
triggered when a prisoner's success would “necessarily imply
the invalidity of the conviction,” 512 U.S. at 487 (emphasis
added), the Supreme Court subsequently clarified that Heck
applies to any challenge to the duration of “confinement”
that necessarily implies the invalidity of that confinement,
even if that challenge would not implicate the underlying
conviction or sentence, see Wilkinson v. Dotson, 544 U.S. 74,
81-82 (2005) (“[A] state prisoner's § 1983 action is barred ...
if success in that action would necessarily demonstrate the
invalidity of confinement or its duration.” (emphasis in
original)); Edwards v. Balisok, 520 U.S. 641, 648 (1997)
(finding that a prisoner's claim for money damages alleging
that he was deprived of good-time credits without due
process necessarily implies the invalidity of the “punishment
imposed,” meaning the deprivation of the credits); Baker
v. New York State Dep't of Corr. & Cmty. Supervision,
No. 9:17-CV-1270 (GTS/TWD), 2018 WL 357297, at *4
(N.D.N.Y. Jan. 10, 2018) (“While the Complaint does not
include any specific request for immediate release, in the
motion for injunctive relief, Plaintiff seeks to overturn the
Panel's decision and moves for immediate release[.] To the
extent that the Complaint could be construed as seeking
release, Plaintiff's claims are dismissed without prejudice
pursuant to Heck, on the ground that habeas corpus is his
sole federal remedy.”); McAllister v. Alexandra, No. 9:09-

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CV-0664 (GTS/DRH), 2009 WL 10675934, at *5 (N.D.N.Y.
July 28, 2009) (“Any claim by Plaintiff that he is entitled to
damages resulting from the denial of parole release is barred
by the doctrine of Heck v. Humphrey[.]”); Grant v. Ahern,
No. 03-CV-0539 (FJS/RFT), 2005 WL 1936175, at *5 n.3
(N.D.N.Y. Aug. 2, 2005) (“Heck has been held to apply to
‘suits contesting the rejection of parole release.’ ” (quoting
Lampkin v. N.Y. City Dep't of Probation, No. 00-CV-7165,
2001 WL 210362, at *2 (S.D.N.Y. Mar. 1, 2001)).
*4 Plaintiff is presently in DOCCS’ custody and was
when he filed this action. Moreover, the complaint lacks
allegations which plausibly suggest that plaintiff's conviction
has been reversed, expunged, declared invalid, or otherwise
called into question by the issuance of a writ of habeas
corpus. Thus, his Section 1983 claims are barred by Heck
and its progeny. Accordingly, these Section 1983 claims are
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28
U.S.C. § 1915A(b) for failure to state a claim upon which
relief may be granted.

3. Fourteenth Amendment Claims - Parole Revocation
Judges are entitled to absolute immunity for actions relating
to the exercise of their judicial functions. Mireless v. Waco,
502 U.S. 9, 9-10 (1991). “Judicial immunity has been created
both by statute and by judicial decision ‘for the benefit of the
public, whose interest it is that the judges should be at liberty
to exercise their functions with independence and without fear
of the consequences.’ ” Huminski v. Corsones, 386 F.3d 116,
136-37 (2d Cir. 2004) (quoting Pierson v. Ray, 386 U.S. 547,
554 (1967) (citation and internal quotation marks omitted)).
“A judge is not protected under the doctrine of judicial
immunity, however, if the action in question is not judicial in
nature[.]” Id. at 138. “[U]nder the common law doctrine of
judicial immunity, a judge is absolutely immune from a suit
for monetary damages unless (1) the actions giving rise to the
suit were ‘not taken in the judge's judicial capacity’ or (2) the
suit arises from actions taken by the judge “in the complete
absence of all jurisdiction.” Gonzalez v. Sharpe, No. 1:06CV-1023 (FJS/RFT), 2006 WL 2591065, at *2 (N.D.N.Y.
Sep. 8, 2006) (citing Huminski v. Corsones, 386 F.3d at 138).
“[A]cts 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); see also Tomlins v. Vill.
of Wappinger Falls Zoning Bd. of Appeals, 812 F.Supp.2d
357, 365 (S.D.N.Y. 2011) (holding that judicial immunity is
applied when a government official performs “the function

of resolving disputes between parties, or of authoritatively
adjudicating private rights.”) (quoting Antoine v. Byers &
Anderson, 508 U.S. 429, 435–36 (1993))).
“This immunity also extends to administrative officials
performing functions closely associated with the judicial
process because the role of the hearing examiner or
administrative law judge ... is functionally comparable to
that of a judge.” Montero v. Travis, 171 F.3d 757, 760 (2d
Cir. 1999) (citations and internal quotation marks omitted);
Moore v. Birmingham, No. 06 CIV 12896, 2009 WL
413219, at *4 (S.D.N.Y. Feb. 13, 2009) (extending immunity
“to administrative officials performing functions closely
associated with the judicial process, including officials who
preside over parole revocation hearings”); Johnson v. Kelsh,
664 F.Supp. 162, 165 (S.D.N.Y. 1987) (concluding that parole
revocation hearings are quasi-judicial in nature).
Here, plaintiff's claims against Rinaldi arise from her conduct
during the parole revocation hearing. Thus, in this case, the
doctrine of judicial and quasi judicial immunity precludes
plaintiff's action against and Rinaldi. Accordingly, plaintiff's
claims are dismissed. See Boddie v. New York State Div. of
Parole, No. 08-CV-911, 2009 WL 1033786, at *6 (E.D.N.Y.
Apr. 17, 2009), opinion modified on denial of reconsideration,
2009 WL 1938981 (E.D.N.Y. July 7, 2009).
*5 “Parole officers [ ] receive absolute immunity for their
actions in initiating parole revocation proceedings and in
presenting the case for revocation to hearing officers, because
such acts are prosecutorial in nature.” Scotto v. Almenas, 143
F.3d 105, 112 (2d Cir. 1998) (citations omitted). Accordingly,
plaintiff's claims against Lappino are dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b). See Miller
v. Garrett, 695 F.Supp. 740, 745 (S.D.N.Y. 1988) (reasoning
that because the parole officer “performed a role comparable
to a prosecutor in a criminal case,” he was entitled to absolute
immunity).

4. Malicious Prosecution
Plaintiff claims that Stucchi subjected him to malicious
prosecution when he charged him with a parole violation. See
Am. Compl. at 2.
To state a claim for malicious prosecution under either §
1983 or New York common law, a plaintiff must allege the
(1) commencement of a criminal proceeding against him, (2)

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termination of the proceeding in plaintiff's favor, (3) lack
of probable cause, and (4) institution of the proceedings by
defendants with actual malice. See Swartz v. Insogna, 704
F.3d 105 (2d Cir. 2013). Here, plaintiff was reincarcerated
due to his parole violations and therefore, has not obtained
a favorable termination. See Robinson v. Wright, No. 5:21CV-1098 (TJM/ML), 2022 WL 2663369, at *4 (N.D.N.Y.
July 11, 2022), report and recommendation adopted, 2022
WL 4356214 (N.D.N.Y. Sept. 19, 2022).

—provides the sole federal remedy where a state prisoner
challenges the fact or duration of his imprisonment ....”)
(citing Preiser, 411 U.S. at 488–90).

Accordingly, plaintiff's malicious prosecution claims are
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28
U.S.C. § 1915A(b).

*6 “The detention of a prisoner beyond the maximum
expiration date of his sentence may in some circumstances
constitute cruel and unusual punishment in violation of
the Eighth Amendment.” Washington v. NYS Parole, No.
19-CV-0601, 2019 WL 1877343, at *2 (S.D.N.Y. Apr.
26, 2019) (citations omitted). Moreover, an inmate has a
liberty interest in being released upon the expiration of
his maximum term of imprisonment. Calhoun v. New York
State Div. of Parole Officers, 999 F.2d 647, 653 (2d Cir.
1993). However, in this case, plaintiff's Eighth Amendment
and Fourteenth Amendment due process claims are barred
by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). See
Hatcher v. Doe #1, No. 17-CV-0777, 2018 WL 1635022, at *3
(N.D.N.Y. Apr. 4, 2018) (dismissing the plaintiff's due process
claims challenging the proper calculation and administration
of his post-release supervision after concluding that they
were barred by Heck); Bonano v. Staniszewski, No. 12CV-5879, 2016 WL 11263168, at *6 (E.D.N.Y. Sept. 2,
2016) (“[P]laintiff claims that defendants miscalculated the
maximum expiration date (or length) of his 2004 sentence
and seeks to shorten the duration of his sentence on his
valid conviction. This claim is barred by Heck.”), report
and recommendation adopted 2017 WL 4220402 (E.D.N.Y.
Sept. 22, 2017); see also Lindsey v. Lutz, No. 10 CIV. 3931,
2011 WL 2791329, at *3 (S.D.N.Y. June 16, 2011) (citing
Heck, 512 U.S. at 487) (applying Heck to substantive due
process claims), report and recommendation adopted, 2011
WL 3628846 (S.D.N.Y. Aug. 17, 2011); see also D'Angelo
v. Annucci, No. 16-CV-6459, 2017 WL 6514692, at *7
(S.D.N.Y. Dec. 19, 2017) (finding the Eighth Amendment
claims barred by Heck because “the entirety of Plaintiff's
Eighth Amendment claim rests on the very fact of his
confinement past his conditional release date” without
challenges to the conditions of his confinement). The fact that
plaintiff is seeking injunctive relief, in addition to monetary
relief, does not require a different finding. See Loyd v.
Cuomo, No. 8:14-CV-0829 (GLS/CFH), 2015 WL 3637409,
at *2 (N.D.N.Y. June 10, 2015) (“[T]he Supreme Court has
explained that the Heck rule applies ‘no matter the relief

5. Right to Privacy and Fourth Amendment
Plaintiff claims that Stucchi and Pezdek violated his right to
privacy and subjected him to an unreasonable search when
the searched his cell phone without consent or a warrant. See
Am. Compl. at 3. In this instance, Heck bars these claims
because plaintiff seeks “damages for the injury of conviction
or imprisonment[.]” See Paulson v. Kelly, No. CV 20-2653,
2020 WL 3402421, at *3 (E.D. Pa. June 19, 2020) (“When a
plaintiff challenges the legality of the underlying search and
seizure of his cell phone, and that search and seizure provided
evidence to support the conviction, any claims based on the
illegal search and seizure of the cell phone are barred by
Heck.”) (citations omitted).
Accordingly, plaintiff's claims based on the illegal search and/
or seizure of his cell phone are dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b).

6. Claims Related to Maximum Release Date
Plaintiff claims he is being held beyond his maximum release
date, December 27, 2023. See Am. Compl. at 4.
Plaintiff is in DOCCS’ custody and seeks “to be relieved
of all obligations to parole.” Am. Compl. at 1. Insofar as
Plaintiff seeks his immediate release from prison, this claim
is not cognizable in this Section 1983 action. In Preiser v.
Rodriguez, 411 U.S. 475 (1973), the Supreme Court held
that habeas corpus was the appropriate remedy for prisoners
challenging the fact or duration of their confinement. See id.
at 490; see also Channer v. Mitchell, 43 F.3d 786, 787 (2d
Cir.1994) (noting that “habeas corpus—not a § 1983 action

Therefore, to the extent plaintiff seeks his immediate release
from incarceration, that claim is dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b)(1) for
failure to state a claim upon which relief may be granted under
Section 1983.

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sought (damages or equitable relief).’ ”) (quoting Wilkinson v.
Dotson, 544 U.S. 74, 82 (2005) and citing Caswell v. Green,
424 Fed. App'x 44, 45 (2d Cir. 2011)).

7. Retaliation
Plaintiff claims that “his P.O.” is holding plaintiff beyond his
maximum release date in retaliation for Gosier I. See Am.
Compl. at 4. Even assuming this claim was not barred by
Heck, it is nonetheless subject to dismissal.
To state a claim of retaliation under the First Amendment, a
plaintiff must allege facts plausibly suggesting the following:
(1) the speech or conduct at issue was “protected;” (2)
the defendants took “adverse action” against the plaintiff namely, action that would deter a similarly situated individual
of ordinary firmness from exercising his or her constitutional
rights; and (3) there was a causal connection between the
protected speech and the adverse action - in other words, that
the protected conduct was a “substantial or motivating factor”
in the defendant's decision to take action against the plaintiff.
Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.
274, 287 (1977); see also Gill v. Pidlypchak, 389 F.3d 379,
380 (2d Cir. 2004). The Second Circuit has stated that courts
must approach prisoner retaliation claims “with skepticism
and particular care,” since “virtually any adverse action taken
against a prisoner by a prison official - even those otherwise
not rising to the level of a constitutional violation - can be
characterized as a constitutionally proscribed retaliatory act.”
Dawes v. Walker, 239 F.3d 489,491 (2d Cir. 2001), overruled
on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S.
506 (2002) (citing Flaherty v. Coughlin, 713 F.2d 10, 13
(2d Cir. 1983)). “[A] complaint which alleges retaliation in
wholly conclusory terms may safely be dismissed on the
pleadings alone.” Flaherty, 713 F.2d at 13.
As to the first element of a retaliation claim, plaintiff
has sufficiently plead that he engaged in protected speech
when he filed Gosier I. Even assuming plaintiff suffered an
adverse action, the complaint lacks facts suggesting a causal
connection between adverse action and Gosier I. Initially,
the Court notes that plaintiff has not identified “his P.O.”
by name. Therefore, as discussed in Part II(C)(1) supra, the
Court will not entertain claims asserted against individuals
not named as defendants herein.

it is difficult to establish one defendant's retaliation for
complaints against another defendant.” Hare v. Hayden, No.
09-CV-3135, 2011 WL 1453789 at *4 (S.D.N.Y. Apr. 14,
2011). Here, plaintiff has not plead facts related to how “his
P.O.” became aware Gosier I or any connection between “his
P.O.” and the lawsuit. See id., at *4-5 (S.D.N.Y. Apr. 14,
2011) (holding that the plaintiff “fail[ed] to establish that
[the defendant] had a motive to retaliate” against him for
complaints filed against another corrections officer). Thus,
there is no basis for the Court to infer a causal connection
between the alleged adverse action and protected conduct.
Accordingly, plaintiff has not plead a viable retaliation
claim. See Guillory v. Haywood, No. 13-CV-1564 (MAD/
TWD), 2015 WL 268933, at *23 (N.D.N.Y. Jan. 21, 2015)
(concluding that the plaintiff failed to allege facts identifying
the grievances and lawsuits from which the defendant's
awareness could be inferred).
Accordingly, the First Amendment retaliation claims are
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28
U.S.C. § 1915A(b) for failure to state a claim upon which
relief may be granted pursuant to Section 1983.
III. CONCLUSION
WHEREFORE, it is hereby
ORDERED that the amended complaint (Dkt. No. 10) is
accepted for filing and is deemed the operative pleading; and
it is further
ORDERED that the Clerk of the Court is directed to add
S.P.O. Nicholas Pezdek (“Pezdek”), Administrative Law
Judge Regina A. Rinaldi (“Rinaldi”), and Parole Revocation
Specialist William Lappino (“Lappino”) to the docket report
as defendants herein; and it is further
ORDERED that the amended complaint is DISMISSED in
accordance with 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C.
§ 1915A(b)(1); and it is further
ORDERED that the Clerk shall enter judgment accordingly;
and it is further
ORDERED that the Clerk of the Court shall serve a copy of
this Decision and Order on plaintiff.

*7 Even assuming plaintiff's P.O. is a named defendant,
the retaliation claims do not survive. “As a general matter,

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All Citations
Slip Copy, 2024 WL 340776
End of Document

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7

Haskell v. Cuomo, Not Reported in Fed. Supp. (2021)
2021 WL 861802

2021 WL 861802
Only the Westlaw citation is currently available.
For Online Publication Only
United States District Court, E.D. New York.
Alti HASKELL, #19004128, Plaintiff,
v.
Gov. Andrew CUOMO, David Hoovler,
District Attorney's Association, District
Attorney Madeline Singas, A.D.A. Gregory
Murphy, Judge William O'Brien, Defendants.
20-CV-3965 (JMA)(SIL)
|
Signed 03/08/2021

required to accept the material allegations in the
complaint as true).
Plaintiff's brief, handwritten complaint is submitted on the
Court's Section 1983 complaint form and seeks to have
this Court intervene in an on-going state court criminal
prosecution. Indeed, among other things, Plaintiff seeks the
dismissal of the indictment against him. 2 (Compl. ¶ III.)
Plaintiff is awaiting trial and complains that he is asthmatic
and at risk of contracting the COVID-19 virus while housed
at the Nassau County Correctional Center. (Id. at 6.) Plaintiff
alleges that his application for a compassionate release was
opposed by ADA Murphy and denied by Judge O'Brien. (Id.
at 6-7.)
2

Attorneys and Law Firms
Alti Haskell, East Meadow, NY, pro se.

ORDER
AZRACK, United States District Judge:
*1 Before the Court is the application to proceed in forma
pauperis filed by incarcerated pro se plaintiff Alti Haskell
(“Plaintiff”) together with a civil rights complaint brought
pursuant to 42 U.S.C. § 1983 (“Section 1983”) against
Governor Andrew Cuomo (“Gov. Cuomo”), David Hoovler
(“Hoovler”), Nassau County District Attorney Madeline
Singas (“DA Singas”), assistant district attorney Gregory
Murphy (“ADA Murphy”), and Judge William O'Brien
(“Judge O'Brien” and collectively, “Defendants”). The Court
grants Plaintiff's request to proceed in forma pauperis and
abstains from interfering in Plaintiff's on-going state court
criminal proceedings. Additionally, the Court sua sponte
dismisses the complaint pursuant to 28 U.S.C. §§ 1915 (e)(2)
(B), 1915A(b) for the reasons that follow.

I. BACKGROUND 1
1

All material allegations in the complaint are
assumed to be true for the purpose of this Order,
see, e.g., Rogers v. City of Troy, New York, 148
F.3d 52, 58 (2d Cir. 1998) (in reviewing a pro
se complaint for sua sponte dismissal, a court is

Plaintiff alleges that he was arraigned on July 18,
2020 and charged with criminal possession of a
weapon in the second degree. (Compl. at 9.)

Plaintiff also complains that he “wanted to be present at
the grand jury to exercise his right to testify, but his
rights were not honored.” (Id. at 9.) On August 22, 2019,
Plaintiff was arraigned on additional charges, including
criminal possession of a firearm, criminal possession of a
controlled substance in the second degree, criminal sale of
a controlled substance in the fifth degree, private sale or
disposal of firearms, rifles, and shot guns, conspiracy in the
second degree, and conspiracy in the fifth degree. (Id. at
10.) According to Plaintiff, his assigned counsel “waived
plaintiff's rights to testify ... [at] the grand jury proceedings
without consultation or consent by signing a waiver for reindictment proceedings.” 3 (Id.) Plaintiff also alleges that
although ADA Murphy stated the People's readiness for trial
on August 22, 2019, he alleges that subsequently (October 18,
2019, December 19, 2019, January 13, 2020, and February
28, 2020) ADA Murphy stated the People were not ready for
trial. (Id. at 11.)
3

Plaintiff also alleges that he “filed a CPL 190.50
motion because he was denied the right to testify
and have his witnesses testify at grand jury on his
behalf.” (Compl. at 10.)

*2 In addition, Plaintiff alleges that Gov. Cuomo's March
13, 2020 declaration of a state of emergency due to the
COVID-19 pandemic deprived Plaintiff of his speedy trial
rights as guaranteed by the Sixth Amendment. (Id. at 11-12.)
As a result, Plaintiff seeks an order from this Court dismissing
the underlying criminal case against plaintiff. (Id. ¶ III,
and at 14.) Apart from the caption, neither DA Singas nor

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Haskell v. Cuomo, Not Reported in Fed. Supp. (2021)
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Hoovler 4 are mentioned in the body of the complaint. See
Compl. generally. Further, in addition to the dismissal of the
indictment, Plaintiff seeks to recover a monetary award in the
sum of $7.5 million, even though Plaintiff has left blank the
space on the form complaint that calls for a description of any
claimed injuries. (Id. ¶¶ II.A., III.)
4

Plaintiff names Hoovler and identifies him as
employed by the District Attorney Association. See
Compl. ¶ I, at 2. According to the complaint, the
District Attorney Association “proposed to Gov.
Andrew Cuomo that he suspend pretrial detainees
CPL 30.30 and 240.” Id. at 11.

II. DISCUSSION
A. In Forma Pauperis Application
Upon review of Plaintiff's declaration in support of the
application to proceed in forma pauperis, the Court finds
that Plaintiff is qualified to commence this action 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 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); see also Boddie v. Schnieder,
105 F.3d 857, 860 (2d Cir. 1997). In addition, the Court
is required to read Plaintiff's pro se complaint liberally and
interpret it to raise 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 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
*3 Section 1983 provides:

[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 “is not itself a source of
substantive rights, but a method for vindicating federal rights
elsewhere conferred by those parts of the United States
Constitution and federal statutes that it describes.” Baker v.
McCollan, 443 U.S. 137, 144 n.3 (1979); Thomas v. Roach,
165 F.3d 137, 142 (2d Cir. 1999). 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

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Haskell v. Cuomo, Not Reported in Fed. Supp. (2021)
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F.3d 545, 547 (2d Cir. 1994)); see also Am. Mfrs. Mut. Ins.
Co. v. Sullivan, 526 U.S. 40, 50 (1999) (“[T]he under-colorof-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).
i. Intervention in Pending State Criminal Proceedings
According to the information maintained by the New York
State Unified Court System on its public database, the
criminal charges against Plaintiff are currently pending.
See https://iapps.courts.state.ny.us/webcrim (last visited on
March 8, 2021). Under Younger v. Harris, 401 U.S. 37 (1971),
and its progeny, the Court must dismiss any claims that
Plaintiff asserts in which he asks the Court to intervene in
his pending state criminal proceedings. It is long established
that “a federal court may not enjoin a pending state-court
criminal proceeding in the absence of special circumstances
suggesting bad faith, harassment, or irreparable injury that
is both serious and immediate.” Lee v. Does 1 & 2, No. 20CV-9290, 2020 WL 7264293, at *2-3 (S.D.N.Y. Dec. 9, 2020)
(citing Gibson v. Berryhill, 411 U.S. 564, 573-74 (1973)
(additional citation omitted)); see also Sprint Commc'ns, Inc.
v. Jacobs, 134 S. Ct. 584, 588 (2013) (“Younger exemplifies
one class of cases in which federal-court abstention is
required: When there is a parallel, pending state criminal
proceeding, federal courts must refrain from enjoining the
state prosecution.”).
Here, wholly absent from the complaint are any allegations
of bad faith, harassment, or irreparable injury with respect
to Plaintiff's on-going state-court criminal prosecution. See
Compl., generally. Therefore, insofar as Plaintiff seeks to
have this Court dismiss the indictments against him, this
Court cannot intervene in his state criminal proceedings.
Given this Court's abstention, such claims are thus dismissed.
However, the Court cannot dismiss Plaintiff's damages claims
under the Younger abstention doctrine. See, e.g., Kirschner
v. Klemons, 225 F.3d 227, 238 (2d Cir. 2000) (“[A]bstention
and dismissal are inappropriate when damages are sought ...
even when a pending state [criminal] proceeding raises
identical issues and [the federal district court] would dismiss
otherwise identical claims for declaratory and injunctive
relief.”). However, such claims are not plausible for the
reasons that follow.

ii. There is No Federal Right to Testify or be Present at
the Grand Jury
*4 It is well-established that “there is no federal
constitutional right to testify before a grand jury, nor, for
that matter, is there even a federal right to a grand jury
in state criminal proceedings.” See Franklin v. Warren Cty.
D.A's Office, No. 08-CV-801, 2009 WL 161314, at *2
(N.D.N.Y. Jan. 21, 2009) (report and recommendation and
order adopting report and recommendation) (“the lack of a
preliminary hearing or appearance before the grand jury—
do not implicate federal rights”) (citing Burwell v. Supt. of
Fishkill Corr. Fac., No. 06-CV-787, 2008 WL 2704319, at
*8 (S.D.N.Y. July 10, 2008)) (citing, inter alia, Branzburg
v. Hayes, 408 U.S. 665, 688 n.25 (1972)). Thus, insofar as
Plaintiff seeks to bring a Section 1983 claim arising from the
grand jury proceedings, such claims are implausible and are
thus dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii),
1915A(b).
iii. Speedy Trial
Plaintiff alleges that he was deprived of his right to a speedy
trial as guaranteed by the Sixth Amendment and N.Y. C.P.L.
§ 30.30. However, “in order to adequately plead claims under
Section 1983 that he was tried and convicted in violation of
his Sixth Amendment right to a speedy trial, Plaintiff must
allege that the state court criminal proceedings terminated in
his favor.” Bussey v. Devane, No. 13-CV-3660, 2013 WL
4459059, at *5 (E.D.N.Y. Aug. 16, 2013) (citing Montane v.
Pettie, No. 10-CV-4404, 2012 WL 1617713, at *2 (E.D.N.Y.
May 8, 2012)). Given that Plaintiff's state court criminal
prosecution is on-going, he cannot allege that it terminated in
his favor.
To the extent Plaintiff attempts to premise a federal speedy
trial claim on CPL 30.30, any such claim is not plausible
because, inter alia, “although CPL § 30.30 is entitled a
‘speedy trial’ statute, the history of its adoption makes evident
that it addresses only the problem of prosecutorial readiness,
and is not a speedy trial statute in the constitutional sense.” 5
Randolph v. Cuomo, No. 20-CV-4719, 2020 WL 6393015,
at *4 (E.D.N.Y. Nov. 2, 2020) (citing People v. Haneiph, 745
N.Y.S.2d 405, 408 (Sup. Ct. Kings Cty. 2002)).
5

Moreover, as discussed below, the Court declines
to exercise supplemental jurisdiction over any state
law claims, including any state law claims based on
CPL 30.30.

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3

Haskell v. Cuomo, Not Reported in Fed. Supp. (2021)
2021 WL 861802

Accordingly, Plaintiff's speedy trial claim under § 1983, as
pled, is not plausible and is dismissed without prejudice
pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b).
iv. Personal Involvement
Although Plaintiff names DA Singas and Hoovler in the
caption and the “Parties” section of the complaint, neither
individual is again mentioned in the body of the complaint.
See Compl., generally. In order to state a plausible claim for
relief under Section 1983, a plaintiff must allege the personal
involvement of the defendant in the alleged constitutional
deprivation. Farid v. Ellen, 593 F.3d 233, 249 (2d Cir.
2010); McCoy v. Goord, 255 F. Supp. 2d 233, 245 (S.D.N.Y.
2003) (explaining that to state a Section 1983 claim for
damages against an individual defendant, a plaintiff must
allege specific facts to show that each defendant was directly
or personally involved in the alleged violation, “that is,
that there was ‘personal participation by one who ha[d]
knowledge of the facts that rendered the conduct illegal.’ ”)
(quoting Provost v. City of Newburgh, 262 F.3d 146, 155 (2d
Cir. 2001)). Where a Section 1983 claim fails to allege the
personal involvement of the defendant, it fails as a matter of
law. See Johnson v. Barney, 360 F. App'x 199, 201 (2d Cir.
2010).
Here, as is readily apparent, Plaintiff has not alleged that DA
Singas and/or Hoovler were personally involved in any of
the challenged conduct. Even affording the pro se complaint
a liberal construction, to the extent that Plaintiff seeks to
impose liability on DA Singas given the position she holds,
he has not alleged a plausible supervisory liability claim.
Indeed, an individual “cannot be held liable for damages
under Section 1983 merely because he held a high position
of authority.” Back v. Hastings on Hudson Union Free Sch.
Dist., 365 F.3d 107, 127 (2d Cir. 2004); Randolph, 2020 WL
63930145, at *3 (“Liability under Section 1983 cannot be
generally imposed on a supervisor solely based on his or
her position.”). Moreover, even if DA Singas was personally
involved in the decisions to prosecute Plaintiff and to oppose
his compassionate release motion (and there is no indication
in the complaint that she was), DA Singas would be entitled to
absolute immunity as set forth below. Accordingly, Plaintiff's
Section 1983 claims against DA Singas and Hoovler are not
plausible and are thus dismissed pursuant to 28 U.S.C. §§
1915(e)(2)(B), 1915A(b).
v. Immunity

*5 Plaintiff's Section 1983 claims seeking damages are
implausible because immunity bars these claims. “[J]udges
generally have absolute immunity from suits for money
damages for their judicial actions” and “even allegations of
bad faith or malice cannot overcome judicial immunity.”
Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir. 2009). Absolute
immunity protects a judge from damages suits “unless [s]he
‘acted in the clear absence of all jurisdiction.’ ” McKeown
v. N.Y. State Comm'n on Judicial Conduct, 377 F. App'x
121, 123-24 (2d Cir. 2010) (summary order) (quoting Tucker
v. Outwater, 118 F.3d 930, 933 (2d Cir. 1997)). Similarly,
prosecutors are also eligible for such immunity. See Berlin
v. Meijias, 15-CV-5308, 2017 WL 4402457, at *3 (E.D.N.Y.
Sept. 30, 2017) (citing McKeown, 377 F. App'x at 124
(“Prosecutors, ... are eligible for absolute immunity....”)). The
Second Circuit has long held that “prosecutors sued under
42 U.S.C. § 1983 are entitled to absolute immunity from
claims for damages arising out of prosecutorial duties that are
intimately associated with the judicial phase of the criminal
process.” Parkinson v. Cozzolino, 238 F.3d 145, 150 (2d
Cir. 2001) (internal citation and quotation marks omitted).
Prosecutors are entitled to absolute immunity with respect to
their “prosecutorial functions,” which include their actions
“as advocates and when their conduct involves the exercise
of discretion.” Flagler v. Trainor, 663 F.3d 543, 547 (2d Cir.
2011).
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 wellestablished 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 omitted).
Here, Judge O'Brien is alleged to have presided over pretrial proceedings in Plaintiff's underlying state court criminal
case and Plaintiff challenges his ruling relating to his motion
for compassionate release filed during such proceedings.
Likewise, ADA Murphy is the assistant district attorney
who, on behalf of the People of the State of New York,
opposed Plaintiff's motion during those proceedings. Because
the conduct by Judge O'Brien and ADA Murphy as alleged by
Plaintiff was clearly within the scope of their respective duties

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4

Haskell v. Cuomo, Not Reported in Fed. Supp. (2021)
2021 WL 861802

during the underlying state criminal prosecutions, together
with the absence of any allegations that they acted “in clear
absence of all jurisdiction”, they are shielded by prosecutorial
immunity. Corley v. Wittner, 811 F. App'x 62, 63 (2d Cir.
2020) (summary order) (“The district court correctly held that
the state court judge and prosecutors were absolutely immune
from suit as to [plaintiff's] speedy trial ... claims.”) (citations
omitted).
Similarly, to the extent that Judge O'Brien, ADA Murphy,
DA Singas, and Gov. Cuomo 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 a district attorney and an assistant district
attorney “benefitted from New York's Eleventh Amendment
immunity against suit” because they were sued in their official
capacities) (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); Morisset v. Cty. of Nassau,
No. 16-CV-3908, 2017 WL 5312135, at *3 (E.D.N.Y. Nov.
13, 2017) (“Plaintiff's claims against DA Singas must also
be dismissed because state officials acting in their official
capacities are protected by sovereign immunity as guaranteed
by the Eleventh Amendment.”).
*6 Here, insofar as Plaintiff seeks monetary damages from
Judge O'Brien, ADA Murphy, DA Singas, and Gov. Cuomo,
the Eleventh Amendment precludes Plaintiff's Section 1983
claims. Accordingly, Plaintiff's Section 1983 claims against
Judge O'Brien, ADA Murphy, DA Singas, and Gov. Cuomo
are implausible and are dismissed without prejudice pursuant
to 28 U.S.C. §§ 1915(e)(2)(B)(ii)-(iii), 1915A(b).
vi. State Law Claims
Under 28 U.S.C. § 1367(a), “the district courts shall have
supplemental jurisdiction over 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
explained: “[I]n 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 (1988).
Here, given the absence of a 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 trial claim under CPL 30.30,
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.

III. 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 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.

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5

Haskell v. Cuomo, Not Reported in Fed. Supp. (2021)
2021 WL 861802

IV. CONCLUSION
For the forgoing reasons, Plaintiff's application to proceed in
forma pauperis is granted, but Plaintiff's Section 1983 claims
are sua sponte dismissed for failure to allege a plausible claim
for relief pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b).
The Court declines to exercise supplemental jurisdiction over
Plaintiff's state law claims and dismisses any such claims
without prejudice to Plaintiff pursuing such claims in state
court.

*7 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 (1962).
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2021 WL 861802

End of Document

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6

Henderson v. Fludd, Not Reported in Fed. Supp. (2019)
2019 WL 4306376

2019 WL 4306376
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Dwayne HENDERSON, #18002983, Plaintiff,
v.
Sheriff Vera FLUDD, Nassau County Sheriff;
Bridget Murphy, Newsday Reporter; District
Attorney Madeline Singas, Defendants.
19-CV-02675 (JMA)(AYS)
|
Signed 09/11/2019
Attorneys and Law Firms
Dwayne Henderson, East Meadow, NY, pro se.

ORDER
AZRACK, United States District Judge:
*1 On May 6, 2019, incarcerated pro se plaintiff Dwayne
Henderson (“plaintiff”) commenced this action against
Nassau County Sheriff Vera Fludd (“Sheriff Fludd”), Bridget
Murphy, who is alleged to be a reporter with Newsday
(“Murphy”), and Nassau County District Attorney Madeline
Singas (“D.A. Singas” and collectively, “defendants”)
pursuant to 42 U.S.C. § 1983 (“Section 1983”), alleging
a deprivation of his constitutional rights. Accompanying
the complaint is an application to proceed in forma
pauperis. However, plaintiff did not file the required Prisoner
Litigation Authorization Form (“PLRA”) with the complaint.
Accordingly, by Notice of Deficiency also dated May 6, 2019
(“Notice”), plaintiff was instructed to complete and return the
enclosed PLRA within fourteen (14) days from the date of
the Notice in order for his case to proceed. On May 15, 2019,
plaintiff timely filed the PLRA.
The Court grants plaintiff's request to proceed in forma
pauperis and, for the reasons that follow, plaintiff's claims
seeking injunctive relief are dismissed without prejudice and
plaintiff's claims seeking damages are stayed pending the
conclusion of the underlying criminal prosecution.

I. BACKGROUND 1
1

All material allegations in the complaint are
assumed to be true for the purpose of this Order,
see, e.g., Rogers v. City of Troy, New York, 148
F.3d 52, 58 (2d Cir. 1998) (in reviewing a pro
se complaint for sua sponte dismissal, a court is
required to accept the material allegations in the
complaint as true).

Plaintiff's brief complaint is submitted on the Court's Section
1983 complaint form. In its entirety, plaintiff's statement of
claim alleges that, on December 17, 2018, at the Nassau
County Correctional Center: 2

Monday December 17 th 2018 my
cell was search. Officers came out
my cell with a folded piece of paper
that contained medication foot powder.
These officers place me Ad/Seg for
drug possession falsifying a report
that the powder found was tested
for a drug called ketamine. Vera
Fludd Sheriff knew these allegations
were false and falsely confined me.
Causing this incident to reach the
media. District Attorney Madeline
Singas has violated my rights to a fair
trial my Sixth Amendment. Madeline
Singas office release my name to
the public solely to heighten public
condemnation of the accused. There
was absolutely no reason to use a case
I wasn't charged on with connection
to jailhouse allegation I wasn't charged
on. Putting that information into the
public domain during my trial creates
a substantial risk of prejudicing the
trial. The Newspaper article was
for no legitimate law enforcement
purpose. Madeline Singas ignored
my right to a fair trial guarantee
to me by the US Constitution
Sixth Amendment. Madeline Singas
inexplicably and unlawfully created

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1

Henderson v. Fludd, Not Reported in Fed. Supp. (2019)
2019 WL 4306376

embarrassing negative press attention
during my trial.

(Compl. ¶ II.) As a result, plaintiff claims to have suffered a
“violation of Constitutional Amendment right to a fair trial,
falsely confined, mental anguish. Defamation of character,
emotion distress, pain and suffering, falsely accused, cruel
and unusual punishment” for which he seeks to recover a
damages award in the total sum of $100 million as well as
have his “name erased from the public domain.” (Id. ¶¶ II.A.,
III.)
2

Excerpts from the complaint are reproduced here
exactly as they appear in the original. Errors in
spelling, punctuation and grammar have not been
corrected or noted.

II. DISCUSSION
A. In Forma Pauperis Application
*2 Upon review of plaintiff's declaration in support of
the application to proceed in forma pauperis, the Court
finds that plaintiff is qualified to commence this action
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 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); see also Boddie v. Schnieder,

105 F.3d 857, 860 (2d Cir. 1997). In addition, the Court is
required to read the 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 recitation of the elements of a
cause of action will not do.’ ” Id. at 678 (quoting Twombly,
550 U.S. at 555).
1. Abstention
Federal courts ordinarily must abstain from exercising
jurisdiction over constitutional claims seeking declaratory
or injunctive relief when: “1) there is an ongoing state
proceeding; 2) an important state interest is implicated in that
proceeding; and 3) the state proceeding affords the federal
plaintiff an adequate opportunity for judicial review of the
federal constitutional claims.” Diamond “D” Constr. Corp.
v. McGowan, 282 F.3d 191, 198 (2d Cir. 2002); see also
Younger v. Harris, 401 U.S. 37(1971).
*3 In Sprint Communications, Inc. v. Jacobs, 571 U.S. 69
(2013), “the Supreme Court rejected this three-part test in
favor of a categorical approach.” Mir v. Shah, 569 F. App'x
48, 50 (2d Cir. 2014) (summary order) (citing Sprint, 571
U.S. at 77–82). Instead, the Supreme Court held that the
Younger abstention doctrine applies only to 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, 571 U.S. at 73, 78 (internal

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2

Henderson v. Fludd, Not Reported in Fed. Supp. (2019)
2019 WL 4306376

quotation marks and citations omitted) (“We have not applied
Younger outside these three ‘exceptional’ categories, and
today hold ... that they define Younger’s scope.”).

two (2) weeks of the conclusion of his state court criminal
proceedings, if so warranted at that time.

Here, insofar as plaintiff seeks injunctive relief relating

III. CONCLUSION

3

to his on-going state court criminal prosecution, the
Supreme Court's categorical approach requires this Court to
abstain under the Younger abstention doctrine. Accordingly,
plaintiff's claims for injunctive relief are implausible and are
thus dismissed without prejudice pursuant to 28 U.S.C. §§
1915(e)(2)(B)(ii), 1915A(b)(1).
3

Plaintiff is awaiting trial under Nassau County
Court-Criminal Term case number 01678N-2018
having pled not guilty to, among other charges,
felony drug possession and assaulting an officer.

Unlike claims for declaratory and injunctive relief, the Second
Circuit has held that claims for monetary damages should
not be dismissed under Younger abstention. Kirschner v.
Klemons, 225 F.3d 227, 238 (2d Cir. 2000). However, given
that plaintiff's claims are closely intertwined with the ongoing criminal case, prosecution of such claims in this Court
at this juncture would be premature. Accordingly, plaintiff's
claims seeking damages are stayed pending the conclusion
of the underlying criminal case. Therefore, the Clerk of
the Court shall administratively close this case. Plaintiff
may request, in writing, that this case be re-opened within
End of Document

For the forgoing reasons, the plaintiff's application to
proceed in forma pauperis is granted. However, plaintiff's
claims seeking injunctive relief are sua sponte dismissed
without prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)
(ii), 1915A(b)(1) and plaintiff's remaining claims seeking
damages are stayed pending the conclusion of the underlying
criminal case. The Clerk of the Court shall administratively
close this case. Plaintiff may request, in writing, that this case
be re-opened within two (2) weeks of the conclusion of his
state court criminal proceedings, if so warranted at that 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 (1962).
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2019 WL 4306376
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3

Franklin v. Warren County D.A.'s Office, Not Reported in F.Supp.2d (2009)
2009 WL 161314

2009 WL 161314
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Harry L. FRANKLIN, Plaintiff,
v.
WARREN COUNTY D.A.'s OFFICE, et al., Defendants.
Civ. No. 1:08–CV–801 (GLS/RFT).
|
Oct. 10, 2008.
West KeySummary
1

Civil Rights

Criminal prosecutions

Constitutional Law
testimony of accused
Grand Jury
counsel

se Plaintiff Harry L. Franklin, who is currently incarcerated
at Adirondack Correctional Facility. Dkt. No. 1, Compl.
Plaintiff has also filed a Motion to Proceed In Forma
Pauperis and an Inmate Authorization Form. Dkt. Nos. 2–
3. By his Complaint, Plaintiff asserts that Kate Hogan, the
District Attorney who criminally prosecuted him in Warren
County Court, and John Wappett, the Public Defender who
represented him, violated Franklin's Fourteenth Amendment
due process right when they denied and/or prevented him
from appearing before the grand jury. Franklin also accuses
Ms. Hogan of violating his right to a speedy trial. Lastly,
Plaintiff asserts that the Honorable John Hall, Jr., violated
his Eighth Amendment right against excessive bail. For a
complete statement of Plaintiff's claims, reference is made to
the Complaint.

II. DISCUSSION

Appearance and

Presence of accused or

A convicted defendant's due process rights were
not violated when he was denied or prevented
from appearing before a grand jury as there was
no federal constitutional right to testify before a
grand jury. Many of defendant's claims resonated
as challenges to his underlying conviction and
thus were not cognizable pursuant to an action
under § 1983 for civil rights violations. U.S.C.A.
Const.Amend. 14; 42 U.S.C.A. § 1983.
8 Cases that cite this headnote

Attorneys and Law Firms
Harry L. Franklin, Ray Brook, NY, pro se.
No Appearance on Record for the Defendants.

REPORT RECOMMENDATION and ORDER
RANDOLPH F. TREECE, United States Magistrate Judge.
*1 The Clerk has sent to the Court for review a civil
rights Complaint, pursuant to 42 U.S.C. § 1983, from pro

A. In Forma Pauperis Application
Turning first to Plaintiff's Motion to Proceed with this Action
In Forma Pauperis, after reviewing the entire file, the Court
finds that Plaintiff may properly proceed with this matter in
forma pauperis.

B. Plaintiff's Complaint
Section 1915(e) of Title 28 of the United States Code directs
that, when a plaintiff seeks to proceed in forma pauperis,
“the court shall dismiss the case at any time if the court
determines that ... the action or appeal (i) is frivolous or
malicious; (ii) fails to state a claim on which relief may be
granted; or (iii) seeks monetary relief against a defendant
who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
Thus, it is a court's responsibility to determine that a plaintiff
may properly maintain his complaint before permitting him
to proceed with his action.
Moreover, under 28 U.S.C. § 1915A, a court must, as soon as
practicable, sua sponte review “a complaint in a civil action
in which a prisoner seeks redress from a governmental entity
or officer or employees of a governmental agency” and must
“identify cognizable claims or dismiss the complaint, or any
portion of the complaint, if the complaint (1) is frivolous,
malicious, or fails to state a claim upon which relief may be
granted; or (2) seeks monetary relief from a defendant who

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1

Franklin v. Warren County D.A.'s Office, Not Reported in F.Supp.2d (2009)
2009 WL 161314

is immune from such relief.” 28 U.S.C. §§ 1915A(a) & (b);
see also Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir.1999) (per
curiam ).
Plaintiff brings this action pursuant to 42 U.S.C. § 1983,
which “establishes a cause of action for ‘the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws' of the United States.” German v.
Fed. Home Loan Mortgage Corp., 885 F.Supp. 537, 573
(S.D.N.Y.1995) (quoting Wilder v. Virginia Hosp. Ass'n, 496
U.S. 498, 508, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990) &
42 U.S.C. § 1983); see also Myers v. Wollowitz, 1995 WL
236245, at *2 (N.D.N.Y. Apr.10, 1995) (stating that “ § 1983
is the vehicle by which individuals may seek redress for
alleged violations of their constitutional rights”).
*2 Plaintiff's § 1983 action is problematic on multiple fronts.
First, he fails to state causes of action for which relief can
be granted; second, he has named parties who are absolutely
immune from suit; third, at least one party has not acted under
color of state law; and, fourth, the entire action is barred by
Heck v. Humphrey. We address each of these obstacles below.
Plaintiff claims his due process rights and his right to
confront his accuser were violated when Defendants Hogan
and Wappett impeded his ability to attend the grand jury
proceedings. However, there is no federal constitutional right
to testify before a grand jury, nor, for that matter, is there even
a federal right to a grand jury in state criminal proceedings.
Burwell v. Supt. of Fishkill Corr. Fac ., 2008 WL 2704319,
at *8 (S.D.N.Y. July 10, 2008) (citing, inter alia, Branzburg
v. Hayes, 408 U.S. 665, 688 n. 25, 92 S.Ct. 2646, 33
L.Ed.2d 626 (1972)). Aside from failing to state actionable
constitutional claims, at least two of the named Defendants,
Kate Hogan and Judge Hall, are absolutely immune from
suit. Young v. Selsky, 41 F.3d 47, 51 (2d Cir.1994) (noting
that “[j]udges enjoy absolute immunity from personal liability
for acts committed within their judicial jurisdiction”); Collins
v. Lippman, 2005 WL 1367295, at *3 (E.D.N.Y. June 8,
2005) (judicial immunity applies to actions seeking monetary
and injunctive relief); see also Dory v. Ryan, 25 F.3d 81,
83 (2d Cir.1994) (noting that prosecutors are absolutely
immune from liability under § 1983 in matters involving the
prosecution). And, with regard to Defendant Wappett, it is
well-settled that parties may not be held liable under § 1983
unless it can be established that they have acted under the
color of state law. See, e.g., Rounseville v. Zahl, 13 F.3d
625 (2d Cir.1994) (noting state action requirement under §
1983); Wise v. Battistoni, 186 A.D.2d 629, 588 N.Y.S.2d 412,

1992 WL 280914, at *1 (S.D.N.Y. Dec. 10, 1992) (same)
(citations omitted). State action is an essential element of any
§ 1983 claim. See Gentile v. Republic Tobacco Co., 1995
WL 743719, at *2 (N.D.N.Y. Dec.6, 1995) (citing Velaire v.
City of Schenectady, 862 F.Supp. 774, 776 (N.D.N.Y.1994)
(citation omitted). Nowhere in his Complaint does Plaintiff
allege that Mr. Wappett was acting under color of state law,
and indeed, it is clear that a public defender, in representing
an indigent client, is not acting under color of state law. Polk
County v. Dodson, 454 U.S. 312, 321, 102 S.Ct. 445, 70
L.Ed.2d 509 (1981); Bourdon v. Loughren, 386 F.3d 88, 90
(2d Cir.2004) (noting that a claim for ineffective assistance of
counsel is not actionable in a § 1983 proceeding and further
citing Polk County for the proposition that public defenders
do not act under color of state law and are not subject to suit
under § 1983). We note that in the caption of his Complaint,
Plaintiff names the Warren County D.A.'s Office and the
Warren County Public Defenders, however, these entities are
not listed under the “Parties” section of his Complaint, nor
does he assert any facts or causes of action against such
entities. Because we find that the employees of these entities
are not subject to suit under § 1983, it follows that, in the
absence of any specific allegations of wrongdoing, no cause
of action would ensue against these entities.
*3 Aside from the litany of reasons stated above why this
§ 1983 action cannot proceed under 28 U.S.C. § 1915(e),
Plaintiff's Complaint suffers from a more dire quandary.
Many of Plaintiff's claims herein resonate as challenges to
his underlying conviction, namely, questioning the speediness
by which he was brought before a grand jury, whether he
was denied the right to confront his accusers in a grand jury,
whether his own attorney hampered his ability to face such
accusers, and whether the judge imposed excessive bail. To
some extent, were any of these matters decided in Plaintiff's
favor, it could call into question the validity of his underlying
conviction for which he is currently serving time in prison.
The Supreme Court has held that

in order to recover damages for
allegedly unconstitutional conviction
or imprisonment, or for other harm
caused by actions whose unlawfulness
would render a conviction or sentence
invalid, a § 1983 plaintiff must
prove that the conviction or sentence
has been reversed on direct appeal,
expunged by executive order, declared

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Franklin v. Warren County D.A.'s Office, Not Reported in F.Supp.2d (2009)
2009 WL 161314

invalid by a state tribunal authorized
to make such determination, or called
into question by a federal court's
issuance of a writ of habeas corpus,
28 U.S.C. § 2254. A claim for
damages bearing that relationship to
a conviction or sentence that has not
been so invalidated is not cognizable
under § 1983.

Servs. ., 892 F.2d 15 (2d Cir.1989)); see also 28 U.S.C. §
636(b) (1); FED. R. CIV. P. 72, 6(a), & 6(e).
*4 IT IS SO ORDERED.
HARRY L. FRANKLIN,
Plaintiff,
v.

Heck v. Humprhey, 512 U.S. 477, 486–87, 114 S.Ct. 2364,
129 L.Ed.2d 383 (1994) (emphasis added). In this regard, it
appears that § 1983 is not the proper vehicle for Plaintiff to
seek judicial review of the claims herein.

WARREN COUNTY D.A.'S OFFICE; WARREN
COUNTY PUBLIC DEFENDERS; JUDGE JOHN
HALL, JR., County Court Judge; JOHN WAPPETT,
Public Defender; KATE HOGAN, Warren County District
Attorney,

WHEREFORE, it is hereby

Defendants.

ORDERED, that Plaintiff's in Forma Pauperis Application
(Dkt. No. 2) is granted; and it is further
ORDERED, that the Clerk provide the Superintendent of the
facility, designated by Plaintiff as his current location, with a
copy of Plaintiff's Inmate Authorization Form (Dkt. No. 3),
and notify the official that this action has been filed and that
Plaintiff is required to pay the entire statutory filing fee of
$350 .00 pursuant to 28 U.S.C. § 1915; and it is further
ORDERED, that the Clerk provide a copy of Plaintiff's
Inmate Authorization Form to the Financial Deputy of the
Clerk's Office; and it is further
RECOMMENDED, that the entire Complaint be dismissed
pursuant to 28 U.S.C. § 1915A, 28 U.S.C. § 1915(e)(2)(B)(ii)
for failure to state a claim upon which relief can be granted
and for naming Defendants protected by absolute immunity,
or, in the alternative, pursuant to the dictates of Heck v.
Humphrey; and it is further
ORDERED, that the Clerk serve a copy of this Report
Recommendation and Order on Plaintiff by regular mail.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have ten
(10) days within which to file written objections to the
foregoing report. Such objections shall be filed with the
Clerk of the Court. FAILURE TO OBJECT TO THIS
REPORT WITHIN TEN (10) DAYS WILL PRECLUDE
APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89
(2d Cir.1993) (citing Small v. Sec'y of Health and Human

MEMORANDUM–DECISION AND ORDER
GARY L. SHARPE, District Judge.
I. Background
Pro se inmate Harry L. Franklin (“Franklin”) brings
this action against defendants alleging violations of his
constitutional rights and seeking monetary damages under
42 U.S.C. § 1983. Specifically, Franklin asserts that Warren
County District Attorney Kate Hogan (“Hogan”) and Public
Defender John Wappett (“Wappett”) violated his due process
rights during his state criminal prosecution because he was
not provided a preliminary hearing or allowed to appear
before the grand jury. Franklin further alleges that his Eighth
Amendment right against excessive bail was violated by
Judge John Hall (“Judge Hall”).
On October 10, 2008, Magistrate Judge Randolph F. Treece
granted Franklin's in forma pauperis application, and sua
sponte addressed the sufficiency of his complaint pursuant
to 28 U.S.C. §§ 1915A and 1915(e)(2)(B). Judge Treece's
report-recommendation 1 (“R & R”) recommended that
Franklin's complaint be dismissed because: 1) it fails to state a
claim for which relief can be granted; 2) it names parties who
are absolutely immune from suit or did not act under color of
state law; and 3) the action is barred by Heck v. Humphrey.
(Dkt. No. 6.) Pending are Franklin's timely objections to the R
& R. (Dkt. No. 7.) For the reasons that follow, and those stated
in the R & R, Franklin's complaint is dismissed in its entirety.

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Franklin v. Warren County D.A.'s Office, Not Reported in F.Supp.2d (2009)
2009 WL 161314

1

The Clerk is directed to append Judge Treece's
report-recommendation, and familiarity therewith
is assumed.

II. Discussion
Before entering final judgment, this court reviews all reportrecommendations in cases it has referred to a Magistrate
Judge. If a party has objected to specific elements of the
Magistrate Judge's findings and recommendations, the court
reviews those particular findings and recommendations de
novo. See Green v. Foley, No. 05–cv–0629, 2007 WL
3232268, at *1 (N.D.N.Y. Oct.31, 2007) (citation omitted).
Even in those cases where no party has filed an objection,
or only a vague, general, and/or partial objection has been
filed, the court reviews the unchallenged findings and
recommendations of a Magistrate Judge under a clearly
erroneous standard. See id.
Here, Franklin objects to Judge Treece's R & R on multiple
grounds. Franklin contends that Wappett, Hogan and Judge
Hall are all amenable to suit under § 1983 as state officials
being sued in their official capacity. He further asserts that
Heck does not bar his claims because he is not challenging
his conviction or sentence. Finally, Franklin contends that his
inability to appear before the grand jury or at a preliminary
hearing, and Judge Hall's imposition of an excessive bail
amount, violated his Fourteenth and Eighth Amendment
rights. The court reviews these objections de novo, and the
remainder of the report for clear error.
*5 Initially, the court notes that Franklin's Fourteenth
Amendment claims are not cognizable under § 1983, as
the factual basis for such claims—the lack of a preliminary
hearing or appearance before the grand jury—do not
implicate federal rights. See, e.g., Burwell v. Supt. of Fishkill
Corr. Fac., No. 06 Civ. 787, 2008 WL 2704319, at *8
(S.D.N.Y. July 10, 2008) (citing Branzburg v. Hayes, 408
U.S. 665, 688 n. 25, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972));
Bilbrew v. Garvin, No. 97–CV–1422, 2001 WL 91620, at *9
(E.D.N.Y. Jan. 10, 2001) (citing Gerstein v. Pugh, 420 U.S.
103, 118–19, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); Hurtado v.
California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884)).
Aside from this deficiency, Franklin's suit may not be
maintained against Judge Hall or Hogan because they are
entitled to absolute immunity in their personal capacities

and sovereign immunity in their official capacities as
state officials. See Young v. Selsky, 41 F.3d 47, 51 (2d
Cir.1994) (reciting that “[j]udges enjoy absolute immunity
from personal liability for acts committed within their judicial
jurisdiction”); Dory v. Ryan, 25 F.3d 81, 83 (2d Cir.1994)
(stating “that absolute immunity protects a prosecutor from §
1983 liability for virtually all acts, regardless of motivation,
associated with his function as an advocate”); see also Ying
Jing Gan v. City of New York, 996 F.2d 522, 529 (2d Cir.1993)
(state officials sued under § 1983 in their official capacity
are entitled to sovereign immunity); Baez v. Hennessy, 853
F.2d 73, 77 (2d Cir.1988) (holding that county D.A.'s are
state officials for purposes of their prosecutorial decisions,
not municipal officials); Myers v. Cholakis, No. 8:08–CV–
126, 2008 WL 5147042, at *1 (N.D.N.Y. Dec.5, 2008)
(granting state judge sued in her official capacity sovereign
immunity). Additionally, Wappett is not amenable to suit in
his personal capacity because public defenders representing
indigent clients are not acting under color of state law, as
required for liability to attach pursuant to § 1983. See Polk
County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d
509 (1981); Rodriguez v. Weprin, 116 F.3d 62, 65–66 (2d
Cir.1997).
Finally, to the extent Franklin brings suit against the Warren
County District Attorney's Office, the Warren County Public
Defender's Officer, and Wappett in their official capacities, his
suit is in reality one against Warren County as a municipality.
See Kentucky v. Graham, 473 U.S. 159, 165–66, 105 S.Ct.
3099, 87 L.Ed.2d 114 (1985). However, Franklin's only
potentially tenable claim here—that for excessive bail under
the Eighth Amendment—is clearly stated solely against Judge
Hall. As the court has indicated, supra, Judge Hall and Hogan
are considered state officials to the extent they are sued in
their official capacity under § 1983 for their judicial and
prosecutorial acts. Thus Warren County, as a municipality,
cannot be held liable for such acts. See Baez, 853 F.2d at
77 (finding that DA's prosecutorial actions were taken as
state officer such that County could not be held liable for
them). Further, municipal liability lies under § 1983 only
where constitutional injury is inflicted pursuant to a municipal
policy or custom. See Monell v. Dept. of Soc. Servs. of
the City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018,
56 L.Ed.2d 611 (1978). Accordingly, Franklin's claims of
municipal liability also fail in the present instance because
there is no indication that any of his federal rights were
violated pursuant to a Warren County policy or custom.

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2009 WL 161314

III. Conclusion
*6 For the reasons discussed above, Franklin cannot
maintain suit against any of the named defendants in their
personal or official capacities, and his complaint must
therefore be dismissed. Accordingly, the court finds it
unnecessary to address Franklin's objections to Judge Treece's
finding that the present action is barred by Heck.

ORDERED that this action is DISMISSED pursuant to 28
U.S.C. §§ 1915A and 1915(e)(2)(B); and it is further
CERTIFIED pursuant to 28 U.S.C. § 1915(a)(3) that any
appeal from this matter would not be taken in good faith; and
it is further
ORDERED that the Clerk of the Court serve a copy of this
Order on the parties by regular mail.

WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Judge Treece's Report and Recommendation
(Dkt. No. 6) is adopted to the extent it is consistent with this
opinion; and it is further

IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2009 WL 161314

End of Document

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