Hicks v. Buitron et al

Filing 11

MEMORANDUM-DECISION AND ORDER: It is ORDERED that Magistrate Judge Therese Wiley Dancks' # 7 Report-Recommendation is REJECTED IN PART and ADOPTED IN PART as follows: REJECTED with respect to the recommendation of dismissal ofall claims agains t Buitron without leave to amend, and ADOPTED in all other respects. It is further ORDERED that the claims against Buitron and the County of Oswego are DISMISSED with leave to amend within 30 days of this Memorandum-Decision and Order. It is further ORDERED that the claims against Oakes and Dodd are DISMISSED without leave to amend. It is further ORDERED that if Hicks fails to file an Amended Complaint within 30 days of the date of this Memorandum-Decision and Order, the Clerk is directed to close this case without further order of the court. Signed by Chief Judge Gary L. Sharpe on 5/22/2014. [Copy served upon pro se plaintiff via regular mail.] (nmk)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
QUENTIN HICKS,
Plaintiff,

6:12-cv-1841
(GLS/TWD)

v.
STEVEN C. BUITRON et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Quentin J. Hicks
Pro Se
12-B-0653
Watertown Correctional Facility
23147 Swan Road
Watertown, NY 13601
Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se Quentin Hicks commenced this action against
defendants Steven C. Buitron, Esq., Hon. Gregory Oakes, Hon. Donald H.
Dodd, and Oswego County, NY, pursuant to 42 U.S.C. § 1983, alleging
violations of his First, Fourth, Eighth, and Fourteenth Amendment rights.
(See generally Compl., Dkt. No. 1.) In an Order and Report-

Recommendation (R&R) issued on May 24, 2013, Magistrate Judge
Thérèse Wiley Dancks recommended that Hicks’ claims against Oakes,
Dodd, and Buitron be dismissed without leave to amend, and that his
claims against the County of Oswego be dismissed with leave to amend.
(Dkt. No. 7 at 8.) Pending before the court are Hicks’ timely objections to
the R&R. (Dkt. No. 8.) For the reasons that follow, the R&R is adopted in
part and rejected in part.
II. Background
Hicks claims that during the relevant time period he was confined at
Oswego County Jail after being charged with conspiracy. (Compl. ¶¶ 1,
13.) Hicks alleges that defendants “unlawfully distributed or assisted in the
distribution of [his] Psychological Evaluation . . . [to] depriv[e] [him] his
Constitutional right to reasonable bail, which was set at one million dollars
and never lowered,” (id. at 1), in violation of his First, Fourth, Eighth, and
Fourteenth Amendment rights. (Id. ¶¶ 7, 19(4).) Hicks claims that, during
his bail hearing, he learned that his psychological evaluation had been
distributed to family members, the media, the judge, the District Attorney’s
office, and the Department of Corrections and Parole. (Id. ¶ 13.)

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III. Standard of Review
Before entering final judgment, this court reviews report and
recommendation orders in cases it has referred to a magistrate judge. If a
party properly objects to a specific element of the magistrate judge’s
findings and recommendations, this court reviews those findings and
recommendations de novo. See Almonte v. N.Y. State Div. of Parole, No.
Civ. 904CV484GLS, 2006 WL 149049, at *3, *5 (N.D.N.Y. Jan. 18, 2006).
In those cases where no party has filed an objection, only vague or general
objections are made, or a party resubmits the same papers and arguments
already considered by the magistrate judge, this court reviews the findings
and recommendations of the magistrate judge for clear error. See id. at *45.
IV. Discussion
Hicks filed both general and specific objections to the R&R, which are
considered below.1 (Dkt. No. 8.)
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In his objections, Hicks alleges additional facts about Oakes and
James Eby, his attorney, for the first time. (Dkt. No. 8 at 2.) Hicks also
argues for the first time that all defendants were negligent in their
protection of his constitutional rights. (Id.) “Generally, courts do not
consider such ‘new arguments’ or ‘new evidence’ ‘raised in objections to a
magistrate judge’s report and recommendation that could have been
raised before the magistrate but were not,’” and this court declines to do
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1.

Specific Objections

Hicks asserts two specific objections, which the court reviews de
novo. See Almonte, 2006 WL 149049, at *3, *5. First, Hicks specifically
objects to the portion of the R&R in which Judge Dancks found that Oakes,
the district attorney at the time of Hicks’ bail hearing, is immune from
liability; Hicks claims that Oakes should not be immune because “he
crossed the line and should be held accountable (personally).” ( Id. at 2;
Compl. ¶ 4.) Hicks’ argument is without merit. Prosecutorial immunity
under 42 U.S.C. § 1983 applies to individual district attorneys for claims
arising out of acts “within the scope of [their] duties in initiating and
pursuing a criminal prosecution.” Pinaud v. Cnty. of Suffolk, 52 F.3d 1139,
1147 (2d Cir. 1995) (internal quotation marks and citations omitted). Since
Hicks’ claims against Oakes arise from acts that Oakes performed within
the scope of his duties in pursuing the prosecution of Hicks, Oakes is
immune from suit, and Hicks’ claims against him are dismissed.
Second, Hicks specifically objects to Judge Dancks’ characterization
of Buitron as Hicks’ attorney; instead, Hicks gives new details and asserts,
so here. Chalsani v. Daines, No. 10-CV-1978, 2011 WL 4465408, at *1
(E.D.N.Y. Sept. 26, 2011) (quoting Illis v. Artus, No. 06-civ-3077, 2009 WL
2730870, at *1 (E.D.N.Y. Aug. 28, 2009)).
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“Buitron was definitely not my defense attorney. At times he was my wife’s
divorce attorney, at other times he was the owner of a law firm who
subcontractored [sic] attorneys to litigate divorce cases, defense cases.”
(Dkt. No. 8 at 1.) Hicks identifies his attorney at the time as James Eby.
(Id. at 2.) While the court appreciates Hicks’ distinction that Buitron was
not his criminal defense attorney, it is of no moment. It is axiomatic that
there must be state action before a suit will be cognizable under § 1983.
See Fabrikant v. French, 691 F.3d 193, 206 (2d Cir. 2012). Judge Dancks
recommended dismissal of Hicks’ claims against Buitron because “criminal
defense attorneys, whether private or court-appointed, are not state actors
for the purposes of Section 1983.” (Dkt. No. 7 at 6-7.) Even though, as it
turns out, Buitron was not Hicks’ defense attorney, Hicks has still not
shown that Buitron was a state actor. Therefore, Hicks’ § 1983 claims are
not cognizable as pleaded. However, Hicks is given leave to amend his
claims against Buitron, and the portion of the R&R recommending that the
claims against Buitron be dismissed without leave to amend is rejected, in
light of the new facts raised for the first time in Hicks’ objections.
2.

General Objections

The remainder of Hicks’ objections take issue with no particular
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aspect of Judge Dancks’ recommendation; they simply re-hash arguments
already submitted to the court in Hicks’ complaint. (Compare Compl., with
Dkt. No. 8.) For example, Hicks simply reasserts that his rights under the
Fourteenth Amendment were violated, but does not specifically object to
any portion of the R&R. (Dkt. No. 8 at 2.) Since Hicks’ objections do not
point out any specific shortcomings in the R&R, and, instead, merely
reiterate earlier-raised arguments, review for clear error is warranted. See
Almonte, 2006 WL 149049, at *4, *6. Having thoroughly reviewed the
remainder R&R, the court finds no clear error, and adopts it in part.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge Thérèse Wiley Dancks’ Order and
Report-Recommendation (Dkt. No. 7) is REJECTED IN PART and
ADOPTED IN PART as follows:
REJECTED with respect to the recommendation of dismissal of
all claims against Buitron without leave to amend; and
ADOPTED in all other respects; and it is further
ORDERED that the claims against Buitron and the County of Oswego
are DISMISSED with leave to amend within thirty (30) days of this
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Memorandum-Decision and Order; and it is further
ORDERED that the claims against Oakes and Dodd are DISMISSED
without leave to amend; and it is further
ORDERED that if Hicks fails to file an Amended Complaint within
thirty (30) days of the date of this Memorandum-Decision and Order, the
Clerk is directed to close this case without further order of the court; and it
is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
May 22, 2014
Albany, New York

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