Lynch v. Bharara et al

Filing 7

ORDER TO AMEND: The Clerk of Court is directed to mail a copy of this order to Plaintiff, and note service on the docket. The Court dismisses Plaintiff's claims against Preet Bharara, Nola Heller, and Robert Johnson pursuant to 28 U.S.C. § ; 1915(e)(2)(B)(i), (ii), (iii). The Court dismisses Plaintiff's claims against Anthony Ricco for failure to state a claim on which relief can be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). The Court dismisses Plaintiff's claims against t he SDNY as barred under the doctrine of sovereign immunity. 28 U.S.C. § 1915(e)(2)(B)(ii), (iii). The Court dismisses Plaintiff's claims against the State of New York as barred by the Eleventh Amendment. 28 U.S.C. § 1915(e)(2)(B)(ii) , (iii). The Court dismisses Plaintiff's claims against J. Guccione, D. Schriro, E. Bailey, R. Cripps, and the G.E.O Detention Facility for failure to state a claim on which relief can be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). The Court denies Plaintiff's motion to proceed anonymously without prejudice to refile at a later time. Plaintiff is granted leave to file an amended complaint detailing his FOIA claims that complies with the standards set forth above. Plaintiff must su bmit the amended complaint to this Court's Pro Se Intake Unit within sixty days of the date of this order, caption the document as an "Amended Complaint," and label the document with docket number 19-CV-3572 (CM). An Amended Civil R ights Complaint form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and he cannot show good cause to excuse such failure, the Court will dismiss the complaint for failure to stat e a claim upon which relief may be granted. The Clerk of Court is directed to docket this as a "written opinion" within the meaning of Section 205(a)(5) of the E-Government Act of 2002. The Court certifies under 28 U.S.C. § 1915(a)(3 ) that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue). Terminated: R. Crips (A.M.K.C. Warden), G.E.O. Detention Facility, J. Guccione (United States Marshall), N. Heller (Assistant United States Attorney), R. Johnson (Bronx County District Attorney), Antho ny Ricco, D. Schriro (Commissioner of D.O.C.), State of New York, United States District Court, Southern District, E. Bailey (R.N.D.C. Warden) and P. Bharara (United States Attorney). Motions terminated: 6 MOTION REQUEST FOR ANONYMITY, filed by Johnny Lynch. (Signed by Judge Colleen McMahon on 8/21/2019) (sac) Transmission to Docket Assistant Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JOHNNY LYNCH,
Plaintiff,
-against-

19-CV-3572 (CM)
ORDER TO AMEND

P. BHARARA, et al.,
Defendants.
COLLEEN McMAHON, Chief United States District Judge:

Plaintiff, currently incarcerated in the Green Haven Correctional Facility, brings this pro
se action under 42 U.S.C. § 1983, alleging that Defendants violated his rights under federal law.
By order dated June 20, 2019, the Court granted Plaintiff’s request to proceed without
prepayment of fees, that is, in forma pauperis (“IFP”). 1 For the reasons set forth below, the Court
grants Plaintiff leave to file an amended complaint within sixty days of the date of this order.
STANDARD OF REVIEW
The Court must dismiss a complaint, or portion thereof, that is frivolous or malicious,
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). The Court must also dismiss a complaint when the Court lacks
subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). While the law mandates dismissal on any
of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572
F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest,”

1

Prisoners are not exempt from paying the full filing fee even when they have been
granted permission to proceed IFP. See 28 U.S.C. § 1915(b)(1).

Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks
and citations omitted) (emphasis in original).
Rule 8 of the Federal Rules of Civil Procedure requires a complaint to make a short and
plain statement showing that the pleader is entitled to relief. A complaint states a claim for relief
if the claim is plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). To review a complaint for plausibility, the Court accepts all
well-pleaded factual allegations as true and draws all reasonable inferences in the pleader’s
favor. Iqbal, 556 U.S. at 678-79 (citing Twombly, 550 U.S. at 555). But the Court need not accept
“[t]hreadbare recitals of the elements of a cause of action,” which are essentially legal
conclusions. Id. at 678 (citing Twombly, 550 U.S. at 555). After separating legal conclusions
from well-pleaded factual allegations, the court must determine whether those facts make it
plausible – not merely possible – that the pleader is entitled to relief. Id.
BACKGROUND
Plaintiff brings this action under 42 U.S.C. § 1983, ultimately seeking to challenge his
transfer from federal to state custody. Most of his complaint, however, describes his attempts to
obtain information about his transfer through filing a number of Freedom of Information Act
(“FOIA”) requests. He sues former U.S. Attorney Preet Bharara, Assistant U.S. Attorney Nola
Heller, U.S. Marshal J. Guccione, the U.S. District Court for the Southern District of New York,
the State of New York, former Bronx District Attorney Robert Johnson, the U.S. Bureau of
Prisons, D. Schriro, Commissioner of Department of Correction, R.N.D.C. Warden E. Bailey,
A.M.K.C. Warden R. Cripps, the G.E.O. Detention Facility, and Anthony Ricco. The following
allegations are taken from Plaintiff’s complaint.

2

A.

Plaintiff’s transfer between state and federal custody
On November 13, 2009, Plaintiff was arrested and committed to the custody of Bronx

County for prosecution by the Bronx County District Attorney’s Office (“Bronx DA”) in the
New York Supreme Court, Bronx County. On June 14, 2010, Plaintiff was “confiscated” by
federal agents and taken to the Manhattan headquarters of the Federal Bureau of Investigation
(“FBI”), where he was questioned by Assistant United States Attorney Nola Heller (“AUSA
Heller”). Plaintiff’s attorney, Defendant Anthony Ricco, arrived shortly after the questioning
began. Plaintiff alleges “by information and belief” that the Bronx DA “was not notified or aware
of [his] confiscation and interrogation at that time.” (Compl. at 3.) Plaintiff was returned to
Rikers Island on the same day. Plaintiff alleges that, on November 9, 2010, he was again
“confiscated” by federal agents and taken to FBI headquarters, where he was questioned by
AUSA Heller. He was returned to Rikers Island on the same day.
On March 17, 2011, Plaintiff was convicted in the Bronx County Supreme Court on the
charge for which he had been indicted. He alleges that, “[d]uring the March 17, 2011
conviction,” the court informed him that he would be transferred to federal custody “pursuant to
said federal charges” and that the state court will direct that its sentence run concurrently to any
federal sentence. (Id. at 4.) Plaintiff alleges that he was never informed by the court, his attorney
Ricco, or the Bronx DA that he would have to testify against anyone or that the concurrent
sentences “were dependent upon [his] participation or self-incrimination.” (Id.) Plaintiff was
placed in federal custody and transferred to the G.E.O. Facility, a private detention facility
contracted by the FBI.
Around June 1, 2011, Plaintiff discharged Ricco as his attorney for allegedly lying to him
and deceiving him about the ramifications of his plea deal. Plaintiff alleges that Ricco informed
the Bronx County Supreme Court and AUSA Heller that Plaintiff wished to breach the state plea
3

agreement and return to state custody for sentencing. Plaintiff maintains that he did not want to
return to state custody, but rather wanted to remain in federal custody and proceed on the federal
charges.
On July 1, 2011, Plaintiff was transferred back to Rikers Island, and on July 15, 2011, the
Bronx DA informed the Bronx County Supreme Court that it considered Plaintiff in breach of the
plea agreement and recommended a sentence of 25 years to life in prison. On September 12,
2012, the Bronx County Supreme Court sentenced Plaintiff to a term of incarceration of 25 years
to life.
B.

Plaintiff’s FOIA requests
Plaintiff’s complaint describes FOIA requests that he submitted to various federal

agencies between May 2016 and July 2018, and in which he sought documents containing
information about his transfer. Plaintiff’s complaint is unclear as to how many separate FOIA
requests he sent and how each request was ultimately resolved. It appears Plaintiff sent FOIA
requests to the U.S. Marshals Service, Federal Bureau of Prisons (“BOP”), the Federal Bureau of
Investigation (“FBI”), the U.S. Attorney’s Office for the Southern District of New York (“U.S.
Attorney’s Office”), and the U.S. District Court for the Southern District of New York
(“SDNY”).
The Marshals Service ultimately produced nine pages of documents in response to
Plaintiff’s request. (Id. at 8-9, 47.) The BOP informed Plaintiff that the records he requested were
not in its possession, id. at 8, 45, and the FBI indicated that it was “unable to identify mail file
records” in response to his request and asked Plaintiff for additional information, id. at 7, 43. The
U.S. Attorney’s Office forwarded his request to the Marshals Service. See id. at 9-10, 60.
Plaintiff appealed the U.S. Attorney’s Office’s decision to forward his request to the Marshals

4

Service and the DOJ’s Office of Information Policy affirmed the U.S. Attorney’s Office’s
decision. (Id. at 62.)
Plaintiff also describes receiving a response from the DOJ, indicating that his request was
for records that were maintained by “another component of DOJ” and determining his request to
be “misdirected.” (Id. at 8.) It is unclear whether Plaintiff sent a separate FOIA request to DOJ or
if DOJ was responding on behalf of another agency under its jurisdiction.
C.

Legal claims and relief sought
Plaintiff asserts a wide array of legal claims, including that Defendants violated his rights

under the Fourth, Fifth, Eighth, and Fourteenth Amendments when they transferred him “from
state to federal custody and from federal to state custody devoid,” and conspired to violate his
rights under the Fifth, Sixth, and Fourteenth Amendments “in their collective efforts to illegally
transfer Plaintiff and holding him in several sovereign prosecutorial jurisdictions under the false
pretense of prosecuting him in both.” (Id. at 23.) Plaintiff also asserts claims for intentional
infliction of emotional distress, denial of equal protection, gross negligence, negligent infliction
of physical, emotional, and mental distress, and loss of consortium. (Id. at 23-24.) He seeks
money damages and injunctive relief, including an order prohibiting Defendants “from utilizing,
in any way, any information alleged to have been collected or provided by Plaintiff throughout
the course of his unconstitutional transfers between sovereigns.” (Id. at 25.)
DISCUSSION
A.

Claims against U.S. Attorney Bharara, AUSA Heller, and Bronx District Attorney
Johnson
Prosecutors are immune from civil suits for damages for acts committed within the scope

of their official duties where the challenged activities are not investigative in nature but, rather,
are “intimately associated with the judicial phase of the criminal process.” Simon v. City of New

5

York, 727 F.3d 167, 171 (2d Cir. 2013) (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976));
see also Buckley v. Fitzsimmons, 509 U.S. 259 (1993) (holding that absolute immunity is
analyzed under “functional approach” that “looks to the nature of the function performed, not the
identity of the actor who performed it”). In addition, prosecutors are absolutely immune from
suit for acts that may be administrative obligations but are “directly connected with the conduct
of a trial.” Van de Kamp v. Goldstein, 555 U.S. 335, 344 (2009).
Any claims that Plaintiff makes claims against U.S. Attorney Bharara, AUSA Heller, and
Bronx District Attorney Johnson 2 are based on actions within the scope of their official duties
and associated with the conduct of a trial. Therefore, these claims are dismissed because they
seek monetary relief against a defendant who is immune from suit and as frivolous. 28 U.S.C. §
1915(e)(2)(b)(i), (iii); see Collazo v. Pagano, 656 F. 3d 131, 134 (2d Cir. 2011) (holding that
claim against prosecutor is frivolous if it arises from conduct that is “intimately associated with
the judicial phase of the criminal process”).
Even if Plaintiff’s allegations can be construed as asserting that AUSA Heller was acting
as an investigator when she questioned him at FBI Headquarters, and is therefore only entitled to
qualified immunity, see Simon v. City of New York, 727 F.3d 167, 174 (2d Cir. 2013), Plaintiff
fails to assert constitutional violations that arose as a result of this questioning. The Court
therefore dismisses any of Plaintiff’s claims against AUSA Heller related to her questioning of
him for failure to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).

2

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege facts showing the
defendants’ direct and personal involvement in the alleged constitutional deprivation. See
Spavone v. N.Y. State Dep’t of Corr. Serv., 719 F.3d 127, 135 (2d Cir. 2013) (citing Colon v.
Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)). The Court notes that Plaintiff has failed to allege any
facts showing how Bharara and Johnson were directly and personally involved in violating his
federal constitutional rights.
6

B.

Claims against Ricco
A claim for relief under § 1983 must allege facts showing that each defendant acted under

the color of a state “statute, ordinance, regulation, custom or usage.” 42 U.S.C. § 1983. Private
parties are therefore not generally liable under the statute. Sykes v. Bank of America, 723 F.3d
399, 406 (2d Cir. 2013) (citing Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S.
288, 295 (2001)); see also Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir. 2002)
(“[T]he United States Constitution regulates only the Government, not private parties.”). Absent
special circumstances suggesting concerted action between an attorney and a state representative,
see Nicholas v. Goord, 430 F.3d 652, 656 n.7 (2d Cir. 2005) (citing Adickes v. S.H. Kress & Co.,
398 U.S. 144, 152 (1970)), the representation of a defendant by private counsel in state criminal
proceedings does not constitute the degree of state involvement or interference necessary to
establish a claim under § 1983, regardless of whether that attorney is privately retained, courtappointed, or employed as a public defender. See Bourdon v. Loughren, 386 F.3d 88, 90 (2d Cir.
2004) (citing Polk Cnty. v. Dodson, 454 U.S. 312, 324-25 (1981)); see also Schnabel v.
Abramson, 232 F.3d 83, 87 (2d Cir. 2000) (holding that legal aid organization ordinarily is not a
state actor for purposes of § 1983). As Ricco is a private party who does not work for any state or
other government body, Plaintiff has not stated a claim against this defendant under § 1983. 28
U.S.C. § 1915(e)(2)(B)(ii).
C.

Claims against the SDNY
The doctrine of sovereign immunity bars federal courts from hearing all suits against the

federal government, including suits against its courts, except where sovereign immunity has been
waived. United States v. Mitchell, 445 U.S. 535, 538 (1980) (quoting United States v. Sherwood,
312 U.S. 584, 586 (1941)); Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir.
1994) (“Because an action against a federal agency or federal officers in their official capacities
7

is essentially a suit against the United States, such suits are . . . barred under the doctrine of
sovereign immunity, unless such immunity is waived.”). Sovereign immunity is not waived for
these claims.
Moreover, to the extent Plaintiff seeks to assert claims against individual judges, they are
absolutely immune from suit for damages for any actions taken within the scope of their judicial
responsibilities. Mireles v. Waco, 502 U.S. 9, 11 (1991). Generally, “acts arising out of, or related
to, individual cases before the judge are considered judicial in nature.” Bliven v. Hunt, 579 F.3d
204, 210 (2d Cir. 2009). “Even allegations of bad faith or malice cannot overcome judicial
immunity.” Id. (citations omitted). This is because “[w]ithout insulation from liability, judges
would be subject to harassment and intimidation . . . .” Young v. Selsky, 41 F.3d 47, 51 (2d Cir.
1994). In addition, as amended in 1996, § 1983 provides that “in any action brought against a
judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief
shall not be granted unless a declaratory decree was violated or declaratory relief was
unavailable.” 42 U.S.C. § 1983. The Court therefore dismisses Plaintiff’s claims against the
SDNY. See 28 U.S.C. § 1915(e)(2)(B)(ii), (iii).
D.

Claims against the State of New York
“[A]s a general rule, state governments may not be sued in federal court unless they have

waived their Eleventh Amendment immunity, or unless Congress has abrogated the states’
Eleventh Amendment immunity . . . .” Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009).
“The immunity recognized by the Eleventh Amendment extends beyond the states themselves to
state agents and state instrumentalities that are, effectively, arms of a state.” Id. New York has not
waived its Eleventh Amendment immunity to suit in federal court, and Congress did not abrogate
the states’ immunity in enacting 42 U.S.C. § 1983. See Trotman v. Palisades Interstate Park
Comm’n, 557 F.2d 35, 40 (2d Cir. 1977). The Eleventh Amendment does not bar suits seeking
8

prospective injunctive relief against state officials allegedly acting in violation of federal law. See
Ex Parte Young, 209 U.S. 123, 150-59 (1908).
Plaintiff does not assert any facts suggesting that New York State or any of its officials
were personally and directly involved in violating his rights. In any event, Plaintiff cannot sue
the State of New York in federal court for money damages, and he does not seek injunctive relief
against a New York State official. Plaintiff’s § 1983 claims against the State of New York are
therefore barred by the Eleventh Amendment and are dismissed. 28 U.S.C. § 1915(e)(2)(B)(ii),
(iii).
E.

Claims against J. Guccione, D. Schriro, Warden E. Bailey, Warden R. Cripps, and
G.E.O Detention Facility
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege facts showing the

defendants’ direct and personal involvement in the alleged constitutional deprivation. See
Spavone v. N.Y. State Dep’t of Corr. Serv., 719 F.3d 127, 135 (2d Cir. 2013) (citing Colon v.
Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)). A defendant may not be held liable under § 1983
solely because that defendant employs or supervises a person who violated the plaintiff’s rights.
See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Government officials may not be held liable for
the unconstitutional conduct of their subordinates under a theory of respondeat superior.”). An
individual defendant can be personally involved in a § 1983 violation if:
(1) the defendant participated directly in the alleged constitutional violation,
(2) the defendant, after being informed of the violation through a report or appeal,
failed to remedy the wrong, (3) the defendant created a policy or custom under
which unconstitutional practices occurred, or allowed the continuance of such a
policy or custom, (4) the defendant was grossly negligent in supervising
subordinates who committed the wrongful acts, or (5) the defendant exhibited
deliberate indifference to the rights of [the plaintiff] by failing to act on
information indicating that unconstitutional acts were occurring.

9

Colon, 58 F.3d at 873. 3
Plaintiff does not allege any facts showing how these Defendants were personally
involved in the events underlying his claims. Plaintiff’s claims are therefore dismissed for failure
to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).
F.

Claims under FOIA
The FOIA gives members of the public a right to access some information from federal

executive agencies. Federal courts have jurisdiction to enforce this right if a requester can show
that “an agency has (1) ‘improperly;’ (2) ‘withheld;’ (3) ‘agency records.’” Kissinger v.
Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980) (quoting 5 U.S.C.
§ 552(a)(4)(B)). The “[FOIA] authorizes suit against federal agencies, not against individuals.”
Times Newspapers of Great Britain, Inc. v. CIA, 539 F. Supp. 678, 685 (S.D.N.Y.1982) (internal
quotation marks omitted); Mamarella v. Cnty. of Westchester, 898 F. Supp. 236, 237
(S.D.N.Y.1995) (“[T]he plain language of [the FOIA] provides that only ‘agencies’ are subject to
the FOIA . . . the statute[ ] do[es] not create a cause of action against individuals.”).
Under the FOIA, an applicant must exhaust administrative remedies by completing the
administrative appeal process before seeking judicial review. 5 U.S.C. § 552(a)(6)(A)(i), (ii); see
Sloman v. U. S. Dep’t of Justice, 832 F. Supp. 63, 65-66 (S.D.N.Y. 1993); Sterling Drug Inc., v.
Harris, 488 F. Supp. 1019, 1023 (S.D.N.Y. 1980). The exhaustion requirement allows the
targeted agency to correct its own errors to obviate unnecessary judicial review. See McKart v.

3

“Although the Supreme Court’s decision in [Ashcroft v. Iqbal, 556 U.S. 662 (2009)] may
have heightened the requirements for showing a supervisor’s personal involvement with respect
to certain constitutional violations,” the Second Circuit has not yet examined that issue. Grullon
v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013).
10

United States, 395 U.S. 185, 193-94 (1969). The FOIA establishes a relatively simple
administrative process:
Each agency, upon any request for records . . . shall--(i) determine within 20 days
(excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such
request whether to comply with such request and shall immediately notify the person
making such request of – (I) such determination and the reasons therefor[.]
§ 552(a)(6)(A)(i)-(ii); see 28 C.F.R. § 16.6(b), (c). If the request is denied, the requester may
appeal the adverse determination to the head of the agency within 90 days.
§ 552(a)(6)(A)(iii)(aa). While “[e]xhaustion of administrative remedies is normally required as a
precondition to suit under the FOIA,” McKevitt v. Mueller, 689 F. Supp. 2d 661, 667 (S.D.N.Y.
2010), if an agency fails to comply with the applicable time limits, a requester is deemed to have
exhausted his administrative remedies, § 552(a)(6)(C)(i).
While Plaintiff alleges making numerous FOIA requests to multiple agencies, he does not
appear to allege facts necessary to state a FOIA enforcement claim. Nor does he indicate that he
has exhausted administrative remedies. In any event, Plaintiff’s complaint fails to comply with
Rule 8’s requirement of a short and plain statement showing that he is entitled to relief.
In light of Plaintiff’s pro se status, the Court grants him leave to file an amended
complaint that includes a short and plain statement of facts indicating that a federal agency has
improperly withheld agency records in violation of the FOIA.
G.

Plaintiff’s request to proceed anonymously
On July 11, 2019, more than two months after he filed the complaint, Plaintiff filed a

motion to proceed anonymously. (ECF No. 6.) Rule 10(a) of the Federal Rules of Civil
Procedure provides that “[t]he title of [a] complaint must name all the parties.” “This
requirement . . . serves the vital purpose of facilitating public scrutiny of judicial proceedings and
therefore cannot be set aside lightly.” Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 188-89

11

(2d Cir. 2008). Courts have, however, permitted parties to proceed anonymously under limited
circumstances. In deciding whether to permit a party to proceed anonymously, the United States
Court of Appeals for the Second Circuit has articulated a nonexhaustive list of ten factors that
courts should consider:
(1) whether the litigation involves matters that are highly sensitive and of a
personal nature; (2) whether identification poses a risk of retaliatory physical or
mental harm to the party seeking to proceed anonymously or even more critically,
to innocent non-parties; (3) whether identification presents other harms and the
likely severity of those harms, including whether the injury litigated against
would be incurred as a result of the disclosure of plaintiff’s identity; (4) whether
the plaintiff is particularly vulnerable to the possible harms of disclosure,
particularly in light of his age; (5) whether the suit is challenging the actions of
the government or that of private parties; (6) whether the defendant is prejudiced
by allowing the plaintiff to press his claims anonymously, whether the nature of
that prejudice (if any) differs at any particular stage of the litigation, and whether
any prejudice can be mitigated by the district court; (7) whether the plaintiff’s
identity has thus far been kept confidential; (8) whether the public’s interest in the
litigation is furthered by requiring the plaintiff to disclose his identity;
(9) whether, because of the purely legal nature of the issues presented or
otherwise, there is an atypically weak public interest in knowing the litigants’
identities; and (10) whether there are any alternative mechanisms for protecting
the confidentiality of the plaintiff.
Id. at 190 (alterations, ellipses, quotation marks, and citations omitted).
While Plaintiff may be able to assert arguments under some of the factors, the cat is
already out of the bag. By initiating this action in a United States District Court, Plaintiff has
made his name a matter of public record. Moreover, he is alleging that government officials have
violated his rights and are unlawfully withholding public records. Such allegations are a matter
of public concern. The Court concludes that the circumstances here are not sufficiently
extraordinary to outweigh the presumption in favor of public access. The Court therefore denies

12

Plaintiff’s motion to proceed anonymously and directs the Clerk of Court to terminate the
motion. 4
LEAVE TO AMEND
Plaintiff is granted leave to amend his complaint to detail his claims. In the statement of
claim, Plaintiff must provide a short and plain statement of the relevant facts supporting each
claim against each defendant named in the amended complaint. Plaintiff is also directed to
provide the addresses for any named defendants. To the greatest extent possible, Plaintiff’s
amended complaint must:
a) give the names and titles of all relevant persons;
b) describe all relevant events, stating the facts that support Plaintiff’s case including
what each defendant did or failed to do;
c) give the dates and times of each relevant event or, if not known, the approximate date
and time of each relevant event;
d) give the location where each relevant event occurred;
e) describe how each defendant’s acts or omissions violated Plaintiff’s rights and
describe the injuries Plaintiff suffered; and
f) state what relief Plaintiff seeks from the Court, such as money damages, injunctive
relief, or declaratory relief.
Essentially, the body of Plaintiff’s amended complaint must tell the Court: who violated
his federally protected rights; what facts show that his federally protected rights were violated;
when such violation occurred; where such violation occurred; and why Plaintiff is entitled to
relief. Because Plaintiff’s amended complaint will completely replace, not supplement, the
original complaint, any facts or claims that Plaintiff wishes to maintain must be included in the
amended complaint.

4

If, during the course of the litigation, Plaintiff believes that a specific document or court
filing may include sensitive information, he may request to file the document under seal.
13

CONCLUSION
The Clerk of Court is directed to mail a copy of this order to Plaintiff, and note service on
the docket.
The Court dismisses Plaintiff’s claims against Preet Bharara, Nola Heller, and Robert
Johnson pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), (ii), (iii).
The Court dismisses Plaintiff’s claims against Anthony Ricco for failure to state a claim
on which relief can be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).
The Court dismisses Plaintiff’s claims against the SDNY as barred under the doctrine of
sovereign immunity. 28 U.S.C. § 1915(e)(2)(B)(ii), (iii).
The Court dismisses Plaintiff’s claims against the State of New York as barred by the
Eleventh Amendment. 28 U.S.C. § 1915(e)(2)(B)(ii), (iii).
The Court dismisses Plaintiff’s claims against J. Guccione, D. Schriro, E. Bailey, R.
Cripps, and the G.E.O Detention Facility for failure to state a claim on which relief can be
granted. 28 U.S.C. § 1915(e)(2)(B)(ii).
The Court denies Plaintiff’s motion to proceed anonymously without prejudice to refile at
a later time.
Plaintiff is granted leave to file an amended complaint detailing his FOIA claims that
complies with the standards set forth above. Plaintiff must submit the amended complaint to this
Court’s Pro Se Intake Unit within sixty days of the date of this order, caption the document as an
“Amended Complaint,” and label the document with docket number 19-CV-3572 (CM). An
Amended Civil Rights Complaint form is attached to this order. No summons will issue at this
time. If Plaintiff fails to comply within the time allowed, and he cannot show good cause to
excuse such failure, the Court will dismiss the complaint for failure to state a claim upon which
relief may be granted.
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The Clerk of Court is directed to docket this as a “written opinion” within the meaning of
Section 205(a)(5) of the E-Government Act of 2002.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would
not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. Cf.
Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates
good faith when he seeks review of a nonfrivolous issue).
SO ORDERED.
Dated:

August 21, 2019
New York, New York
COLLEEN McMAHON
Chief United States District Judge

15

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

(In the space above enter the full name(s) of the plaintiff(s). )

AMENDED
COMPLAINT
under the Civil Rights Act,
42 U. S. C. § 1983

-against-

Jury Trial:

Q

Yes

Q

No

(check one)
____

Civ. _________ (

)

(In the space above enter the full name(s) of the defendant(s). If you
cannot fit the names of all of the defendants in the space provided,
please write “see attached” in the space above and attach an
additional sheet of paper with the full list of names. The names
listed in the above caption must be identical to those contained in
Part I. Addresses should not be included here. )

I.

Parties in this complaint:

A.

List your name, identification number, and the name and address of your current place of
confinement. Do the same for any additional plaintiffs named. Attach additional sheets of paper
as necessary.

Plaintiff’s

B.

Name_____________________________________________________________
ID#_______________________________________________________________
Current Institution___________________________________________________
Address___________________________________________________________
__________________________________________________________________

List all defendants’ names, positions, places of employment, and the address where each defendant
may be served. M ake sure that the defendant(s) listed below are identical to those contained in the
above caption. Attach additional sheets of paper as necessary.

Defendant No. 1

Name ___________________________________________ Shield #_________
Where Currently Employed __________________________________________
Address __________________________________________________________
_________________________________________________________________

Rev. 01/2010

1

Defendant No. 2

Name ___________________________________________ Shield #_________
Where Currently Employed __________________________________________
Address __________________________________________________________
_________________________________________________________________

Defendant No. 3

Name ___________________________________________ Shield #_________
Where Currently Employed __________________________________________
Address __________________________________________________________
_________________________________________________________________

W ho did
w hat?

Defendant No. 4

Name ___________________________________________ Shield #_________
Where Currently Employed __________________________________________
Address __________________________________________________________
_________________________________________________________________

Defendant No. 5

Name ___________________________________________ Shield #_________
Where Currently Employed __________________________________________
Address __________________________________________________________
_________________________________________________________________

II.

Statement of Claim:

State as briefly as possible the facts of your case. Describe how each of the defendants named in the
caption of this complaint is involved in this action, along with the dates and locations of all relevant events.
You may wish to include further details such as the names of other persons involved in the events giving
rise to your claims. Do not cite any cases or statutes. If you intend to allege a number of related claims,
number and set forth each claim in a separate paragraph. Attach additional sheets of paper as necessary.
A.

In what institution did the events giving rise to your claim(s) occur?
_______________________________________________________________________________
_______________________________________________________________________________

B.

Where in the institution did the events giving rise to your claim(s) occur?
_______________________________________________________________________________

C.

What date and approximate time did the events giving rise to your claim(s) occur?
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________

D.
W hat
h ap p en ed
to you ?

Facts:__________________________________________________________________________

_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
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2

_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
W as
anyone
else
involved?

_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________

W ho else
saw w hat
h ap p en ed?

III.

Injuries:

If you sustained injuries related to the events alleged above, describe them and state what medical
treatment, if any, you required and received.
______________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
______________________________________________________________________________________
IV.

Exhaustion of Administrative Remedies:

The Prison Litigation Reform Act (" PLRA" ), 42 U. S. C. § 1997e(a), requires that “ [n]o action shall be
brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are
available are exhausted. ” Administrative remedies are also known as grievance procedures.
A.

Did your claim(s) arise while you were confined in a jail, prison, or other correctional facility?
Yes ____

Rev. 01/2010

No ____

3

If YES, name the jail, prison, or other correctional facility where you were confined at the time of the
events giving rise to your claim(s).
_____________________________________________________________________________________
_____________________________________________________________________________________
______________________________________________________________________________________
B.

Does the jail, prison or other correctional facility where your claim(s) arose have a grievance
procedure?
Yes ____

C.

No ____

Do Not Know ____

Does the grievance procedure at the jail, prison or other correctional facility where your claim(s)
arose cover some or all of your claim(s)?
Yes ____

No ____

Do Not Know ____

If YES, which claim(s)?
_______________________________________________________________________________
D.

Did you file a grievance in the jail, prison, or other correctional facility where your claim(s) arose?
Yes ____

No ____

If NO, did you file a grievance about the events described in this complaint at any other jail,
prison, or other correctional facility?
Yes ____
E.

No ____

If you did file a grievance, about the events described in this complaint, where did you file the
grievance?
_______________________________________________________________________________
1.
Which claim(s) in this complaint did you grieve?
______________________________________________________________________________
_______________________________________________________________________________
2.
What was the result, if any?
_______________________________________________________________________________
_______________________________________________________________________________
3.
What steps, if any, did you take to appeal that decision? Describe all efforts to appeal to
the highest level of the grievance process.
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________

F.

If you did not file a grievance:
1.

If there are any reasons why you did not file a grievance, state them here:
_________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

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4

________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

2.

If you did not file a grievance but informed any officials of your claim, state who you
informed, when and how, and their response, if any:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

G.

Please set forth any additional information that is relevant to the exhaustion of your administrative
remedies.
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________

Note:

You may attach as exhibits to this complaint any documents related to the exhaustion of your
administrative remedies.

V.

Relief:

State what you want the Court to do for you (including the amount of monetary compensation, if any, that
you are seeking and the basis for such amount).

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5

VI.
On
these
claims

Previous lawsuits:

A.

Have you filed other lawsuits in state or federal court dealing with the same facts involved in this
action?
Yes ____ No ____

B.

If your answer to A is YES, describe each lawsuit by answering questions 1 through 7 below. (If
there is more than one lawsuit, describe the additional lawsuits on another sheet of paper, using
the same format. )
1.

Parties to the previous lawsuit:

Plaintiff
Defendants
2. Court (if federal court, name the district; if state court, name the county) ________________
3.

Docket or Index number

4.

Name of Judge assigned to your case__________________________________________

5.

Approximate date of filing lawsuit

6.

Is the case still pending? Yes ____ No ____
If NO, give the approximate date of disposition__________________________________

7.

What was the result of the case? (For example: Was the case dismissed? Was there
judgment in your favor? Was the case appealed?) _______________________________
________________________________________________________________________
________________________________________________________________________

On
other
claim s

C.

Have you filed other lawsuits in state or federal court otherwise relating to your imprisonment?
Yes ____

D.

No ____

If your answer to C is YES, describe each lawsuit by answering questions 1 through 7 below. (If
there is more than one lawsuit, describe the additional lawsuits on another piece of paper, using
the same format. )
1.

Parties to the previous lawsuit:

Plaintiff
Defendants
2.

Court (if federal court, name the district; if state court, name the county) ___________

3.

Docket or Index number

4.

Name of Judge assigned to your case_________________________________________

5.

Approximate date of filing lawsuit

Rev. 01/2010

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6.

Is the case still pending? Yes ____ No ____
If NO, give the approximate date of disposition_________________________________

7.

What was the result of the case? (F or example: Was the case dismissed? Was there
judgment in your favor? Was the case appealed?) ______________________________
________________________________________________________________________
_________________________________________________________________________

I declare under penalty of perjury that the foregoing is true and correct.
Signed this

day of

, 20

.

Signature of Plaintiff

_____________________________________

Inmate Number

_____________________________________

Institution Address

_____________________________________
_____________________________________
_____________________________________
_____________________________________

Note:

All plaintiffs named in the caption of the complaint must date and sign the complaint and provide
their inmate numbers and addresses.

I declare under penalty of perjury that on this _____ day of _________________, 20__, I am delivering
this complaint to prison authorities to be mailed to the Pro Se Office of the United States District Court for
the Southern District of New York.

Signature of Plaintiff:

Rev. 01/2010

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_____________________________________