Smith v. Schweiloch et al

Filing 7

MEMORANDUM OPINION AND ORDER OF SERVICE. The plaintiff, currently incarcerated at the Manhattan Detention Center, filed this Complaint pro se, pursuant to 42 U.S.C. Section 1983, arising out of his New York County arrest on August 26, 2009. CONCLUSIO N: The Court dismisses the plaintiff's claims against ADA Schweiloch. The Clerk of Court is directed to issue a Summons as to: Sol Schwartzberg, Esq.; P.O. Michael MacDougal; P.O. Sandra Quinones; P.O. James Lamb; P.O. Jose Moronta; P.O. Michael Loughran; Det. Wilfredo Vega; Det. Severino Concordia; Det. Jose Criollo; Det. Desmond Egan and the City of New York. The plaintiff is directed to serve the Summons and Complaint upon these defendants within 120 days. See Fed. R. Civ. P. 4(m). If se rvice has not been made within the 120 days, and the plaintiff has not requested an extension of time to serve within that 120 days, the Complaint may be dismissed for failure to prosecute, pursuant to Rules 4 and 41 of the Federal Rules of Civil Procedure. (Signed by Judge John G. Koeltl on 5/19/2012) (bw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
─────────────────────────────────
JAMES SMITH,
Plaintiff,
MEMORANDUM OPINION AND
ORDER OF SERVICE

-againstHARRISON SCHWEILOCH, et al.,
Defendants.
──────────────────────────────────

12 Civ. 3253 (JGK)

JOHN G. KOELTL, United States District Judge:
The plaintiff, currently incarcerated at the Manhattan
Detention Center, filed this Complaint pro se, pursuant to 42
U.S.C. § 1983, arising out of his New York County arrest on
August 26, 2009.

I.
The Court is required to screen complaints brought by
prisoners seeking relief against a governmental entity or an
officer or employee of a governmental entity.
1915A(a).

28 U.S.C. §

The Court must dismiss a complaint, or portion

thereof, that states a frivolous or malicious claim, 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. §§ 1915(e)(2)(B), 1915A(b) ; see Abbas v. Dixon, 480
F.3d 636, 639 (2d Cir. 2007).

While the law authorizes

dismissal on any of these grounds, district courts “remain
obligated to construe a pro se complaint liberally.”
Mills, 572 F.3d 66, 72 (2d Cir. 2009).

Harris v.

Thus, pro se complaints

should be read with “special solicitude” and should be
interpreted to raise the “strongest [claims] that they suggest.”
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d
Cir. 2006) (citations omitted).

II.
Named as defendants are: New York County Assistant District
Attorney (“ADA”) Harrison Schweiloch; the plaintiff’s assigned
criminal defense attorney Sol Schwartzberg; Police Officer
(“P.O.”) Michael MacDougal; P.O. Sandra Quinones; P.O. James
Lamb; P.O. Jose Moronta; P.O. Michael Loughran; Detective
(“Det.”) Wilfredo Vega; Det. Severino Concordia; Det. Jose
Criollo; Det. Desmond Egan; seven John Doe police officers and
the City of New York.

The plaintiff alleges that police used

excessive force during his arrest, and for twenty-four hours
denied him medical treatment for his injuries and heroin
withdrawal symptoms, transporting him to Bellevue only after he
was coerced into making inculpatory statements.

The plaintiff

claims he was hospitalized for nine days due to the severity of
his injuries.

The plaintiff further asserts that the defendants

falsely arrested him and have conspired to violate his
constitutional rights during his criminal proceedings, which are
ongoing.

The plaintiff asserts that his attorney has been

ineffective and committed malpractice.

According to the

plaintiff, New York City is liable because it failed to train

its employees, and these events constitute a policy, custom or
practice.

III.
The plaintiff names as a defendant ADA Schweiloch.

A

prosecutor acting within the scope of his duties is entitled to
absolute immunity with respect to prosecutorial activities that
are “intimately associated with the judicial phase of the
criminal process.”

Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir.

2010) (citing Imbler v. Pachtman, 424 U.S. 409, 430 (1976)).
This immunity extends to actions relating to his function as an
advocate.

See Peay v. Ajello, 470 F.3d 65, 68 (2d Cir. 2006) (a

prosecutor is entitled to absolute immunity despite allegations
of misconduct); Fields v. Soloff, 920 F.2d 1114, 1119 (2d Cir.
1990) (“[U]nless a prosecutor proceeds in the clear absence of
all jurisdiction, absolute immunity exists for those
prosecutorial activities intimately associated with the judicial
phase of the criminal process.

This protection extends to the

decision to prosecute as well as the decision not to prosecute.”
(citations and internal quotation marks omitted)).

The

plaintiff does not assert any conduct by ADA Schweiloch that did
not arise out of his advocacy role or was outside his
jurisdiction.

Rather, the plaintiff explicitly asserts that the

prosecutor only became involved in this case after the
plaintiff’s allegedly false arrest, and the plaintiff’s factual
allegations with respect to the prosecutor all relate to alleged

misconduct relating to the prosecutor's actions before the grand
jury, at a suppression hearing, and at trial.

See Complaint,

Smith v. Schweiloch, No 12 Civ. 3253 (S.D.N.Y.), Docket No.2,
at 3-C 3-D.

The plaintiff's claims against this defendant are,

therefore, barred by prosecutorial immunity, and must be
dismissed.

CONCLUSION

The Court dismisses the plaintiff's claims against ADA
Schweiloch.

The Clerk of Court is directed to issue a Summons

as to: Sol Schwartzberg, Esq.; P.O. Michael MacDougal; P.O.
Sandra Quinones; P.O. James Lamb; P.O. Jose Moronta; P.O.
Michael Loughran; Det. Wilfredo Vega; Det. Severino Concordia;
Det. Jose Criollo; Det. Desmond Egan and the City of New York.
The plaintiff is directed to serve the Summons and Complaint
upon these defendants within 120 days.
4(m).

See Fed. R. Civ. P.

If service has not been made within the 120 days, and the

plaintiff has not requested an extension of time to serve within
that 120 days, the Complaint may be dismissed for failure to
prosecute, pursuant to Rules 4 and 41 of the Federal Rules of
Civil Procedure.
SO ORDERED.
Dated: May 19 2012
New York l New York
1

States District Judge