Juste v. Vilardo et al
ORDER granting 2 MOTION for Leave to Proceed in forma pauperis filed by Andre Juste and dismissing the Complaint with prejudice for failure to state a claim. Leave to appeal to the Court of Appeals as a poor person is denied. Signed by Hon. Elizabeth A. Wolford on 1/11/2018. Copy mailed to plaintiff. (LB)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LAWRENCE J. VILARDO, JEREMIAH J.
MCCARTHY, GAIL MITCHELL, U.S.
ASSISTANT ATTORNEY, AND U.S.
ATTORNEY, WESTERN DISTRICT OF NEW
In this action, pro se Plaintiff Andre Juste ("Plaintiff') seeks $40,000,000.00 in
damages from United States District Judge Lawrence J. Vilardo, United States Magistrate
Judge Jeremiah J. McCarthy, Assistant United States Attorney Gail Mitchell, and the
Unites States Attorney's Office for the \Vestern District of Nev.r York (collectively,
"Defendants") for actions taken in handling Plaintiffs legal proceedings in the Western
District of New York. (Dkt. 1). Plaintiff also seeks permission to proceed in forma
pauperis. (Dkt. 2). For the reasons below, the Court (1) grants Plaintiffs request to
proceed as a poor person; and (2) dismisses his Complaint with prejudice for failure to state
a cause of action on which relief may be granted, and based on absolute judicial and
Standard of Review
Under 28 U.S.C. § 1915(e)(2)(B), the Court must conduct an initial screening of a
prose litigant's complaint and must dismiss if it is "frivolous and 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." 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). In evaluating the
Complaint, the Court must accept as true all of the factual allegations and must draw all
inferences in Plaintiff's favor. See Larkin v. Savage, 318 F.3d 138, 139 (2d Cir. 2003);
King v. Simpson , 189 F .3d 284, 287 (2d Cir. 1999).
While "a court is obliged to construe [prose] pleadings liberally, particularly when
they allege civil rights violations," McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir.
2004 ), even pleadings submitted pro se must meet the notice requirements of Rule 8 of the
Federal Rules of Civil Procedure. Wynder v. McMahon, 360 F.3d 73 (2d Cir. 2004).
"Specific facts are not necessary," and the plaintiff "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 citation omitted) (quoting Bell At!.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Based on the Court's evaluation of the Complaint, Plaintiff's claims must be
dismissed with prejudice pursuant to 28 U.S.C. § 1915A for failure to state a claim on
which relief may be granted.
Plaintiff Fails to State a Claim On Which Relief May Be Granted
Plaintiff, a frequent litigant who has approximately two dozen cases currently
pending in this Court, has filed this action seeking money damages against two Judges who
have handled his cases and the prosecutor(s) involved. Plaintiffs Complaint is difficult to
comprehend. To illustrate, Plaintiff alleges as follows:
Defendant violations violated the plaintiffs actions and proceedings to other
courts, article to certain courts out ofNew York Jurisdiction there from prior
proceeds invasion of justice breach the justice under 18 U.S.C. § 2242-2242
intentional powers of local governments to be restricted on detained the
(Dkt. 1 at 7). Nevertheless, the gravamen of Plaintiffs Complaint is clear: he alleges that
Defendants have violated Plaintiffs constitutional rights by failing to grant his release from
custody as an immigration detainee. (Id. at 6).
Plaintiff's§ 1983 Claims are Construed as Arising Under Bivens
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. "To state a valid claim
under§ 1983, the plaintiff must allege that the challenged conduct (1) was attributable to
a person acting under color of state law, and (2) deprived the plaintiff of a right, privilege,
or immunity secured by the Constitution or laws of the United States." Whalen v. County
of Fulton, 126 F.3d 400, 405 (2d Cir. 1997).
Defendants are officials of the federal government, and, as such, are not deemed
persons acting under color of state law pursuant to§ 1983. Section 1983 provides redress
for individuals who have been injured by a person acting under color of state law; it does
not create a cause of action against persons who act under color of federal law. See Bivens
v. Six Unknown Named Agents, 403 U.S. 388, 398 (1971) (Harlan, J., concurring).
However, in view of Plaintiffs pro se status, the Court will construe his § 1983 claim
against federal Defendants as an action under Bivens. See Tavarez v. Reno, 54 F.3d 109
(2d Cir. 1995).
The Court notes that, under the United States Supreme Court's recent decision in
Ziglar v. Abbassi, 137 S. Ct. 1843 (2017), an initial question arises as to whether Bivens
provides Plaintiff with an avenue for relief against Defendants. In Ziglar, the Supreme
Court was called upon to answer the question whether it should extend the implied right of
action recognized in Bivens to Muslim detainees who were detained following the
September 11th terrorist attacks and allegedly mistreated and discriminated against during
their detention. The claims in Ziglar were brought against high-level federal officials,
including the former Attorney General of the United States, John Ashcroft, and former
Director of the Federal Bureau of Investigation, Robert Mueller. The Court declined to
extend Bivens to the context at issue and stated that, when determining whether to extend
an implied right of action under Bivens to a "new context," 1 courts must be hesitant and
The Supreme Court has extended Bivens in only two circumstances. See Davis v.
Passman, 442 U.S. 228 (1979), and Carlson v. Green, 446 U.S. 14 (1980). Bivens itself
involved an alleged Fourth Amendment violation alleging an unlawful search and seizure
by agents of the Federal Bureau of Narcotics. The Court for the first time recognized an
implied right of action under the Constitution against federal officials and held that a cause
of action under the Fourth Amendment could be brought against agents of the federal
Davis involved an allegation that the defendant, a United States
Congressman, fired the plaintiff, a Deputy Administrative Assistant, based on her gender.
The Court held that a cause of action for damages under the Fifth Amendment alleging sex
discrimination could be stated. Davis, 442 U.S. at 246-49. Carlson involved a claim that
the plaintiffs son suffered personal injuries at the hand of federal prison officials that led
to his death. The Court allowed an Eighth Amendment claim to proceed against the federal
prison officials sued. Carlson, 446 U.S. at 24-25
consider whether there are "special factors counseling hesitation in the absence of
affirmative action by Congress." Id. at 1857 (internal quotations and citations omitted).
Plaintiffs claims herein clearly would extend Bivens to a "new context." However,
whether "special factors" caution against extending Bivens in this context is an issue that
should not be decided upon screening of a complaint pursuant to § 1915(e)(2)(B) and
without briefing by the parties upon either a motion to dismiss or for summary judgment.
Therefore, for purposes of screening only, the Court assumes arguendo a remedy under
Bivens is available to Plaintiff in this action.
Absolute Judicial Immunity Bars Plaintiff's Claims Against Judge
Vilardo and Magistrate Judge McCarthy
Judges are absolutely immune from suit for any actions taken within the scope of
their judicial responsibilities. See, e.g., Mireles v. Waco, 502 U.S. 9 (1991). Allegations
that the judge acted in bad faith or with malice (which are not present here) do not pierce
the protection of immunity. Pierson v. Ray, 386 U.S. 547, 554 (1967). The Supreme Court
has expressly applied the doctrine of judicial immunity to actions brought pursuant to
§ 1983. See Pierson, 386 U.S. at 547; see also Butz v. Economou, 438 U.S. 478,504 (1978)
(no distinction for purposes of immunity between Bivens and§ 1983 claims).
The Supreme Court has developed a two-part test for determining whether a judge
is entitled to absolute immunity. See Stump v. Sparkman, 435 U.S. 349, 356-57 (1978).
First, "[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."' Id. at 356-57 (quoting
Bradley, 80 U.S. (13 Wall.) at 351); see also Maestri v. Jutkofsky, 860 F.2d 50 (2d Cir.
1988) (finding no immunity where town justice issued arrest warrant for conduct which
took place within neither his town nor an adjacent town, thereby acting in the absence of
all jurisdiction). Here, Plaintiff makes no allegation that either Judge Vilardo or Magistrate
Judge McCarthy acted in the clear absence of all jurisdiction; moreover, any such
allegation would not be plausible given the nature of the complained-of actions.
Second, a judge is immune for actions performed in his judicial capacity. Cf, e.g.,
Gregory v. Thompson, 500 F.2d 59, 62 (9th Cir. 1974) (finding no immunity where judge
assaulted litigant). Plaintiff complains of precisely that: actions that Judge Vilardo and
Judge McCarthy performed in their judicial capacities.
Therefore, absolute judicial immunity bars Plaintiffs claims against Judge Vilardo
and Magistrate Judge McCarthy. See Advanced Magnetics, Inc. v. Bayfront Partners, Inc.,
106 F.3d 11, 18 (2d Cir. 1997) (leave to amend need not be granted, however, where
amendment would be futile); Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir.
1993) ("Where it appears that granting leave to amend is unlikely to be productive, ... it
is not an abuse of discretion to deny leave to amend."). Plaintiffs claims against Judge
Vilardo and Magistrate Judge McCarthy must be dismissed with prejudice.
Prosecutorial Immunity Bars Plaintiff's Claims Against AUSA Mitchell
Plaintiff also names Gail Mitchell, Assistant United States Attorney, as a defendant.
In addition to judges, prosecutors performing traditional prosecutorial activities are given
absolute immunity in§ 1983 suits and Bivens suits. See Imbler v. Pachtman, 424 U.S. 409,
427-28 (1976). "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 .... " Barrett v.
United States, 798 F.2d 565, 571-72 (2d Cir. 1986). "[I]t is settled law that administrative
judges and agency prosecutors are shielded by absolute immunity from claims arising from
quasi-judicial administrative proceedings." Herbst v. US. I.NS., 98 CIV. 5533 (LMM),
1999 WL 1052461, at *6 (S.D.N.Y. Nov. 19, 1999). Plaintiff claims that Defendants failed
to follow procedure and "wrongful[ly] violated the plaintiffs constitutional rights" by
refusing to release him from custody. (Dkt. 1 at 11). To the extent that Plaintiff has made
any claims against Defendant Mitchell, they clearly relate to actions she allegedly took as
the prosecutor in Plaintiffs immigration matter, and, as such, the actions are "closely
associated with the conduct of litigation or potential litigation." Barrett, 798 F .2d at 57172.
Therefore, all claims against Defendant Mitchell also must be dismissed with
Plaintifrs Claim Against the United States Attorney for the Western
District of New York is Not Cognizable
Plaintiffs claim against the United States Attorney for the Western District ofNew
York, which the Court construes as brought against the agency, is also without legal
foundation. In Bivens, the Supreme Court recognized that certain circumstances may give
rise to a private cause of action against federal officials that is comparable to the statutory
cause of action permitted against state officials by § 1983. However, Bivens claims are
available only against federal government officers in their individual capacities. The
federal government itself and its agencies are immune from suit absent a waiver of
sovereign immunity, and the Supreme Court has specifically declined to waive such
immunity to allow a claim against a federal agency under Bivens. F.D.IC. v. l'vfeyer, 510
U.S. 471, 475, 486 (1994). Even if the Court construed this claim as against the United
States Attorney in his individual capacity, it, too, would be barred by the doctrine of
prosecutorial immunity. Accordingly, Plaintiffs claims against the United States Attorney
for the Western District of New York are also dismissed with prejudice.
IT HEREBY IS ORDERED, that Plaintiffs application to proceed m forma
pauperis is granted; 2
FURTHER, that the Complaint is dismissed with prejudice for failure to state a
claim on which relief may be granted and based on absolute judicial and prosecutorial
FURTHER, that the Court hereby certifies, pursuant to 28 U.S.C. § 1915(a), that
any appeal from this Order would not be taken in good faith and leave to appeal to the
Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438
( 1962). Further requests to proceed on appeal in forma pauperis should be directed on
motion to the United States Court of Appeals for the Second Circuit in accordance with
Rule 24 of the Federal Rules of Appellate Procedure.
Because Plaintiff is an immigration detainee, the Prisoner Litigation Reform Actspecifically, 28 U.S.C. § 1915(a)(2), (b), and (g), and § 1915A-does not apply to him.
Ramos v. Winiewicz, No. 12-CV-0157M, 2012 WL 1044530, at 1, n.1 (W.D.N.Y., March
23, 2012) (citing Tavares v. Attorney General, United States, 211 F. App'x 27 n.2 (3d Cir.
Dated: January 11, 2018
Rochester, New y ork
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