Chandler v. Carroll et al

Filing 16

OPINION AND ORDER: GRANTING 6 Motion to Dismiss; GRANTING 8 Motion to Dismiss. This case is DISMISSED. Signed by Judge J. Garvan Murtha on 08/12/2009. (wjf)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT Charles Chandler, Plaintiff, v. Karen Carroll, William Sorrell, Tracy Shriver, Defendants. : : : : : : : :

File No. 1:09-CV-58

OPINION AND ORDER (Papers 6 and 8) Plaintiff Charles Chandler, proceeding pro se, brings this action claiming that the defendants have violated his constitutional rights. Specifically, Chandler claims that Judge

Karen Carroll violated his right to counsel in a criminal case, and wrongfully ordered police officers to enter his home. Chandler complained to Attorney General William Sorrell and Windham County State's Attorney Tracy Shriver, each allegedly declined to prosecute. Currently before the Court are the For the reasons set forth below, When

defendants' motions to dismiss.

the motions to dismiss are GRANTED and this case is DISMISSED. Factual Background Chandler's complaint centers upon actions allegedly taken by state court Judge Karen Carroll. At all times relevant to the

complaint, Judge Carroll was presiding over a criminal action in which Chandler was the defendant. Chandler's first claim is that

on two occasions in September 2008, Judge Carroll "unlawfully"

threatened to file a professional conduct complaint against Chandler's attorney. the case. Shortly thereafter, counsel withdrew from

As a result, Chandler alleges that he was left without

representation in violation of his Sixth Amendment rights. Attached to the complaint is the transcript of a hearing held on September 12, 2008, in which Judge Carroll discussed her thought process with respect to the professional conduct complaint. "I had considered filing such a complaint, not

because I felt there was any unethical behavior, but because the Court needed assistance in getting certain cases to hearing considering the medical issues that [counsel had] had." 1-2 at 3). (Paper

As the defendants explain in their motion to dismiss,

"the Vermont Supreme Court, through the Professional Responsibility Board, [may] assign substitute counsel in the event [counsel's] medical conditions render him disabled." (Paper 8 at 3). An Entry Order rendered earlier in Chandler's

criminal case makes clear that counsel's medical issues were delaying the case, and that stand-by or substitute counsel needed to be considered. (Paper 8-4).

Chandler claims that Judge Carroll not only threatened counsel directly with a professional conduct charge, but also through a member of counsel's firm. In the transcript submitted

by Chandler, Judge Carroll confirms having had such conversations "both on and off the record." (Paper 1-2 at 3). When counsel

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conceded that his health was "still an issue," the court granted his motion to withdraw and allowed Chandler 18 days in which to find new counsel. (Paper 8-2 at 8). The state court docket

indicates that this deadline was subsequently extended for several months so that a decision could be issued on Chandler's motion to disqualify Judge Carroll. (Paper 8-3 at 7). Id. The

motion to disqualify was ultimately denied.

Chandler's second allegation against Judge Carroll is that she "did unlawfully and corruptly allow four Vermont State Troopers to invade the Plaintiff's Home/Business to commit the crime of Armed Robbery and to take private property belonging to the Plaintiff." (Paper 1 at 3). The Troopers allegedly entered

and searched Chandler's home on October 3, 2008 "without a warrant and without any legal cause." Id. at 4. They proceeded

to seize approximately $10,000 in cash as well as "certain paperwork and evidence." Id. Chandler claims that the Troopers

also took a bottle of prescription medicine and smashed a window on his utility truck. After leaving Chandler's home, the police allegedly telephoned Judge Carroll to provide an update. The complaint

contends that "[t]he four individuals ordered by the Defendant caused the Plaintiff to fear for his life and had there not been so many witnesses this Armed Robbery would have most likely lead to the death of the Plaintiff." Id. The Troopers are not

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defendants in this case, as they are being sued by Chandler in a separate action. 1:09-CV-59. Chandler brought his allegations about Judge Carroll to the attention of Vermont Attorney General William Sorrell and Windham County State's Attorney Tracy Shriver. Both Sorrell and Shriver See Chandler v. Albright, et al., File No.

allegedly declined to take action because Chandler had named them as defendants in a pending civil suit. They also "criminally

stopped the Plaintiff from filing a criminal complaint himself" against the Troopers who had entered his home on October 3, 2008. (Paper 1 at 6). "The Defendants refused to accept the written

complaint and had the written complaint returned to the Plaintiff by the Clerk of Windham District Court . . . ." Id. Chandler

submits that these alleged actions violated his rights under the Equal Protection Clause of the Fourteenth Amendment, as well as his First Amendment right "for a redress of grievances." Id.

After being refused assistance by defendants Sorrell and Shriver, Chandler allegedly tried to file a complaint in Vermont District Court, but "Defendant Carroll refused to accept the Complaint . . . ." Id. at 7. The complaint sets forth nine claims for relief, including claims of extortion, racketeering, constitutional violations, and state statutory claims. Chandler also accuses defendants Sorrell

and Shriver of taking action "to seize the Plaintiffs [sic]

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image, embarrass, humiliate, intimidate, and deliberately inflict emotional injury upon the Plaintiff." Id. at 9. For relief, he

is asking for compensatory damages, a protective order barring the defendants from having any contact with him or his family, and for the Court to cite the defendants "with a Criminal Complaint from this Court and prohibit them from holding any public office until the outcome of their Criminal case." 14. Discussion The defendants have each moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Their motions test the legal rather See, Id. at

t h a n the factual sufficiency of Chandler's complaint.

e . g . , Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000) ("At the R u l e 12(b)(6) stage, `[t]he issue is not whether a plaintiff i s likely to prevail ultimately, but whether the claimant is e n t i t l e d to offer evidence to support the claims.'") ( q u o t i n g Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998)). Accordingly, the Court must accept the factual

a l l e g a t i o n s in the complaint as true, Erickson v. Pardus, 1 2 7 S. Ct. 2197, 2200 (2007), and draw all reasonable i n f e r e n c e s in favor of the plaintiff. Bolt Elec., Inc. v.

C i t y of New York, 53 F.3d 465, 469 (2d Cir. 1995).

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T h e Supreme Court has held that the standard governing a complaint's legal sufficiency is one of "plausibility." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556-60 (2007). "A claim has facial plausibility when the plaintiff pleads f a c t u a l content that allows the court to draw the reasonable i n f e r e n c e that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) The standard does not

( c i t i n g Twombly, 550 U.S. at 556).

r e q u i r e a probability of liability, but "asks for more than a sheer possibility that a defendant has acted unlawfully." Id. Pleadings drafted by a pro se party must be liberally Fernandez v. Chertoff, 471 F.3d 45, 51 (2d Cir.

construed. 2006). I.

Judge Carroll Judge Carroll moves to dismiss on the basis of absolute

judicial immunity.

"[J]udicial immunity is an immunity from Mireles v.

suit, not just from ultimate assessment of damages."

Waco, 502 U.S. 9, 11 (1991); Gotbetter v. Wendt, 2008 WL 5147036 at *3 (S.D.N.Y. Dec. 3, 2008). "The absolute immunity of a judge applies `however erroneous the act may have been, and however injurious in its consequences it may have proved to the plaintiff.'" Young v. Selsky, 41 F.3d 47, 51 (2d Cir. 1994)

(quoting Cleavinger v. Saxner, 474 U.S. 193, 199-200 (1985)).

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Judicial immunity is overcome in only two situations: "First, a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge's judicial capacity. Second, a

judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction." at 11 (citations omitted). The first allegation against Judge Carroll is that she threatened Chandler's attorney. The record makes clear, however, Mireles, 502 U.S.

that Judge Carroll was concerned about the pace of Chandler's criminal proceeding, and about the impact counsel's health problems might have on getting the case to trial. Under the

Vermont Criminal Rules, Judge Carroll had an obligation to avoid "unjustifiable expense and delay." Vt. R. Crim. P. 2. By

considering action through the Professional Responsibility Board, Judge Carroll was merely exploring one avenue by which the case could proceed without undue delay. Her actions were plainly

judicial in nature, were taken with full jurisdiction, and are entitled to absolute judicial immunity. Chandler next claims that Judge Carroll wrongfully permitted State Troopers to enter his house and take cash and personal items. Specifically, he claims that the search was conducted (Paper 1 at 4).

"without warrant and without any legal cause."

While the Court must accept Chandler's factual allegations as true, it notes that Judge Carroll "adamantly denies Plaintiff's

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allegations" and urges the Court to disregard Chandler's legal conclusions and any speculation about her actions or motives. Judge Carroll also argues that ordering a search and seizure of property is a judicial function under Vermont law. Crim. P. 41. Vt. R.

The Supreme Court has "made clear that `whether an

act by a judge is a "judicial" one relate[s] to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in [her] judicial capacity.'" Mireles,

502 U.S. at 12 (quoting Stump v. Sparkman, 435 U.S. 349, 362 (1978)). In Mireles, a judge had ordered the police to use The Court

excessive force in bringing an attorney before him.

held that the question presented was not whether the order was improper, erroneous, or beyond the judge's authority, but whether the act was one "normally performed by a judge." Id.

Here, Judge Carroll's authorization of a home search was a distinctly judicial act. Whether the order was issued

erroneously, or whether directing the search went beyond Judge Carroll's authority, is immaterial. See id. Judge Carroll had

jurisdiction over Chandler's criminal case, and is entitled to judicial immunity for her alleged role in the search and seizure of his property. Because Judge Carroll is immune from suit based upon the facts alleged, each of Chandler's claims against her, including

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his claims of extortion, racketeering and constitutional violations, must be dismissed. Accordingly, Judge Carroll's

motion to dismiss (Paper 8) is GRANTED. II. Sorrell and Shriver Attorney General Sorrell and State's Attorney Shriver have moved jointly for dismissal. Their first argument seeks immunity

for damages claims brought against them in their official capacities. The Eleventh Amendment of the United States

Constitution prohibits suits brought in federal court by citizens against a state and its agencies, absent a waiver of immunity and consent to suit by the state or a valid abrogation of constitutional immunity by Congress. See, e.g., Puerto Rico

Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 142-47 (1993); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 97-100 (1984). The Eleventh Amendment also bars claims

for damages brought against state employees sued in their official capacities. See Hafer v. Melo, 502 U.S. 21, 25 (1991);

Pennhurst, 465 U.S. at 102. Relevant to this case, there has been no waiver of Vermont's sovereign immunity and no abrogation of that immunity by Congress. In fact, the Vermont legislature has specifically See

preserved the State's immunity under the Eleventh Amendment. 12 V.S.A. § 5601(g). Accordingly, Chandler's damages claims

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brought against Sorrell and Shriver in their official capacities are DISMISSED. The defendants next attack Chandler's claim, set forth in his "second claim for relief," that they sought to "seize [his] image, humiliate, harass, intimidate, and deliberately inflict emotional injury upon Plaintiff." (Paper 1 at 9). Chandler's

only legal citation in this cause of action is to 42 U.S.C. § 1983. However, the only allegation that resembles a

constitutional claim is the reference to seizure of Chandler's image, and Chandler offers no factual support for this specific claim. Construing the complaint extremely liberally, the seizure of image claim may have something to do with Chandler's arrest and the taking of his photograph. In any event, Sorrell and Shriver

are not alleged to have been involved in Chandler's criminal case. As to any claims of harassment, emotional distress,

embarrassment or humiliation, these do not rise to the level of constitutional claims. See, e.g., Calderon v. Wheeler, 2009 WL

2252241, at *13 (N.D.N.Y. July 28, 2009) ("42 U.S.C. § 1983 is not designed to rectify harassment or verbal abuse."); Caldarola v. City of Westchester, 142 F. Supp. 2d 431, 441 (S.D.N.Y. 2001) (finding no constitutionally protected interest in being free from reputational injury). is, therefore, DISMISSED. Chandler's second claim for relief

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Count Three of the complaint charges Sorrell and Shriver of denying Chandler his First Amendment right to petition the government for redress of grievances. Chandler's specific claim

is that the defendants declined to undertake the prosecution of Judge Carroll, and that they had his complaint returned to him by state court personnel. The defendants argue that Chandler had no constitutional right to a criminal prosecution. Indeed, "it is well-settled

that a private citizen does not have a constitutional right to bring a criminal complaint against another individual." Price v.

Hasly, 2004 WL 1305744, at *1 (W.D.N.Y. June 8, 2004) (citing Leeke v. Timmerman, 454 U.S. 83 (1981); Linda R.S. v. Richard D., 410 U.S. 614 (1973)); Rzayeva v. United States, 492 F. Supp. 2d 60, 87 (D. Conn. 2007)). Moreover, the decision as to whether to

bring a prosecution is entitled to absolute prosecutorial immunity. See Imbler v. Pachtman, 424 U.S. 409, 430 (1976)

(holding that prosecutors enjoy absolute immunity from liability under § 1983 in suits seeking damages for acts carried out in their prosecutorial capacities.); Doe v. Phillips, 81 F.3d 1204, 1210 (2d Cir. 1996) (same). Finally, the claim that these

prosecutors directed state court personnel to take certain actions with respect to his court filings is clearly frivolous, as attorneys cannot guide the filing practices in state court. Chandler's third claim for relief is, therefore, DISMISSED.

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The next cause of action involving Sorrell and Shriver is Count Seven, in which Chandler alleges the denial of his rights under the Equal Protection Clause of the Fourteenth Amendment. The factual allegations underlying this claim again pertain to the defendants' respective decisions not to prosecute, and their alleged interference with Chandler's efforts to file a criminal complaint. Accordingly, the same defenses apply, to wit,

Chandler had no constitutional right to file a criminal complaint and the defendants are entitled to absolute prosecutorial immunity. The defendants also argue that Chandler has failed to state a valid equal protection claim. An equal protection claim must

set forth two elements: (1) that the plaintiff was treated differently than others similarly situated, and (2) that this differential treatment was motivated by an intent to discriminate on the basis of impermissible considerations, such as race or religion, to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure the person. Freedom Holdings, Inc. v. Spitzer, 357 F.3d 205, 234 Diesel v. Town of Lewisboro, 232 F.3d 92, 103 A plaintiff need not necessarily show that he is

(2d Cir. 2004); (2d Cir. 2000).

a member of a particular protected group, so long as he alleges that he has been "treated differently from others similarly situated and that there is no rational basis for the difference

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in treatment." 564 (2000).

Village of Willowbrook v. Olech, 528 U.S. 562,

Chandler has not set forth any facts about "others similarly situated." Nor has he alleged facts sufficient to state a claim The sole factual allegations with

of discriminatory intent.

respect to the movants is that they used their "influence and position" to bar Chandler from filing a criminal complaint. (Paper 1 at 12). The remainder of Count Seven cites the

Fourteenth Amendment and asserts, in conclusory fashion, that the defendants engaged in various unlawful conduct. As the Supreme Court has explained "a plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief' requires more than labels and conclusions . . . a formulaic recitation of the elements of a cause of action will not do." Twombly, 127 S. Ct. at 1964-65. Because Chandler has failed to

provide any facts that would raise his equal protection claim above the speculative level, the Court must GRANT the defendants' motion to dismiss on this claim. The final cause of action involving Sorrell and Shriver is Count Nine, in which Chandler alleges unlawful interference with commerce and violations of the Racketeering Influenced and Corrupt Organizations Act ("RICO"). See 18 U.S.C. § 1961 et seq.

Chandler claims that the defendants engaged in a "scheme" that consisted of Sorrell and Shriver "and the other five people

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mentioned here" and consisted of "an ongoing series or chain of acts for at least three years and is prohibited and defined by M.P.C. ss 212.5 and 18 U.S.C. 1951, 1962-1964 (R.I.C.O.)." (Paper 1 at 13). Count Nine also alleges that "[t]he Plaintiff Id.

is an individual and interstate business."

Title 18, Section 1951 et seq., also known as the "Hobbs Act," is exclusively a criminal statute and provides no right of action for private citizens. John's Insulation Inc. v. Siska

Constr. Co., 774 F. Supp. 156, 163 (S.D.N.Y. 1991); see also Bajorat v. Columbia-Breckenridge Dev. Corp., 944 F. Supp. 1371, 1377-78 (N.D. III. 1996) (collecting cases holding that the Hobbs Act and other criminal statutes do not allow for a private right of action). DISMISSED. In order to state a RICO claim, Chandler must satisfy seven elements: "(1) that the defendant (2) through the commission of two or more acts (3) constituting a `pattern' (4) of `racketeering activity' (5) directly or indirectly invests in, or maintains an interest in, or participates in (6) an `enterprise' (7) the activities of which affect interstate or foreign commerce." Moss v. Morgan Stanley Inc., 719 F.2d 5, 17 (2d Cir. "The RICO statute defines Accordingly, any claim brought under this statute is

1983), citing 18 U.S.C. § 1962(a)-(c).

a "pattern of racketeering activity" as including `any act which is indictable' under a series of federal criminal laws, including

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mail fraud, wire fraud, obstruction of justice, and witness tampering." Sheridan v. Mariuz, 2009 WL 920431, at *6 (S.D.N.Y. "[A] RICO plaintiff bears the dual burden of

Apr. 6, 2009).

pleading both the `pattern of racketeering activity' and the substantive violations of federal criminal law that comprise the pattern of racketeering activity." Id. (citing Bank of China v.

NBM LLC, 359 F.3d 171, 176-77 (2d Cir. 2004) (explaining that proof of underlying criminal action is a part of establishing a civil RICO claim)). For reasons discussed above, Chandler has failed to assert actionable, much less criminal, conduct by the defendants. Furthermore, he has not provided any facts to support his claim that the defendants were part of an organized "racket," or that his business is involved in interstate of foreign commerce. "[C]onclusory allegations are insufficient to survive a motion to dismiss RICO claims," particularly given the "stigmatizing effect a RICO claim can have on a defendant." Jones v. Nat'l Commc'n &

Surveillance Networks, 409 F. Supp. 2d 456, 473 (S.D.N.Y. 2006). Accordingly, this claim must also be DISMISSED. III. Leave to Amend Although the general practice in this Circuit and this District is to grant leave to file an amended complaint, Chandler's claims against the three defendants are substantively flawed and cannot be saved through re-pleading. See Cuoco v.

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Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).

Briefly stated,

Chandler is suing a judge, a state Attorney General and a county State's Attorney, each of whom are protected by absolute immunity for much of the conduct alleged in the complaint. To the extent

that Chandler claims that these defendants barred him from filing a criminal complaint, he has no constitutional right to do so. While Chandler's equal protection and RICO claims have been insufficiently pled, even a liberal construction of the complaint fails to show "any indication that a valid claim might be stated." Id. Accordingly, leave to re-plead will not be granted See Van Buskirk v. N.Y. Times Co., 325 F.3d 87, 91

in this case.

(2d Cir. 2003) (noting that although a district court should consider dismissal of pleadings without prejudice, "a district court need not as a matter of course dismiss a complaint without prejudice to an attempted amendment of the pleadings."). Conclusion For the reasons set forth above, the defendants' motions to dismiss (Papers 6 and 8) are GRANTED and this case is DISMISSED. SO ORDERED. Dated at Brattleboro, in the District of Vermont, this 12th day of August, 2009.

/s/ J. Garvan Murtha Honorable J. Garvan Murtha Senior United States District Judge

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