Walden v. Cuomo

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK JOHN WALDEN, Plaintiff, -againstGOVERNOR ANDREW M. CUOMO; ATTORNEY GENERAL LETITIA JAMES; ASSISTANT ATTORNEY GENERAL CHARLES SANDERS; MAYOR BILL DeBLASIO; JUSTICE ELLEN GESMER; HON. ARLENE GOLDBERG; HON. JILL KONVISER; DISTRICT ATTORNEY CYRUS 19-CV-6779 (CM) VANCE JR.; ASSISTANT DISTRICT ATTORNEY SHIPLA KALRA; COMMISSIONER JAMES ORDER OF DISMISSAL O’NEILL; DETECTIVE JAMES MEEHAN, SHIELD # 6445; DETECTIVE STEVE STANLEY, SHIELD # 3554; COMMISSIONER ANTHONY J. ANNUCCI; ATTORNEY SUSAN CALVELLO; ATTORNEY LAWRENCE SCHWARTZ; ATTORNEY WILLIAM KENDALL; CITY OF NEW YORK DEPARTMENT OF LAW, OFFICIAL AND INDIVIDUAL CAPACITY & OFFICIAL CAPACITY, Defendants. COLLEEN McMAHON, Chief United States District Judge: Plaintiff, currently incarcerated in Orleans Correctional Facility, brings this pro se action under 42 U.S.C. § 1983 , alleging that Defendants violated his constitutional rights.1 By order dated September 3, 2019, the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis (IFP).2 1 This action, originally filed in the United States District Court for the Eastern District of New Yok, was transferred to this Court by order dated July 16, 2019. See Walden v. Cuomo, No. 19-CV-3688 (AMD) (ST) (E.D.N.Y. July 16, 2019). 2 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). STANDARD OF REVIEW The Prison Litigation Reform Act requires that federal courts screen complaints brought by prisoners who seek relief against a governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The court must dismiss a prisoner’s in forma pauperis complaint, or any portion of the complaint, 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 if 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,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits – to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief. The Supreme Court has held that under Rule 8, a complaint must include enough facts to state a claim for relief “that is plausible on its face.” A claim is facially plausible if the plaintiff pleads enough factual detail to allow the court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the court must accept all well-pleaded factual allegations as true. But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of action,” which are essentially just legal conclusions. 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. BACKGROUND Plaintiff John Walden brings this action challenging his 2015 arrest and subsequent conviction. He asserts that he was wrongfully convicted and that he is being illegally detained. Plaintiff seeks his release and monetary damages for every day he is illegally detained. A review of the records of the New York State Department of Corrections and Community Supervision reveals that Plaintiff was convicted of two counts of burglary in the third degree, a Class D felony, and sentenced to an indeterminate term of imprisonment of six to 12 years. See http://nysdoccslookup.doccs.ny.gov/GCA00P00/WIQ3/WINQ130. DISCUSSION A. Municipal Liability Plaintiff’s claims against the City of New York Department of Law must be dismissed. When a plaintiff sues a municipality such as the City of New York under § 1983, it is not enough for the plaintiff to allege that one of the municipality’s employees or agents engaged in some wrongdoing. The plaintiff must show that the municipality itself caused the violation of the plaintiff’s rights. See Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011) (“A municipality or other local government may be liable under this section [1983] if the governmental body itself ‘subjects’ a person to a deprivation of rights or ‘causes’ a person ‘to be subjected’ to such deprivation.”) (quoting Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 692 (1978)); Cash v. Cnty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011). In other words, to state a § 1983 claim against a municipality, the plaintiff must allege facts showing (1) the existence of a municipal policy, custom, or practice, and (2) that the policy, custom, or practice caused the violation of the plaintiff’s constitutional rights. See Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012); Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997) (internal citations omitted). Plaintiff has not alleged in the complaint that any policy, custom, or practice of the City of New York caused a violation of his rights. His claims against the City of New York Department of Law are therefore dismissed. 28 U.S.C. §1915 (e)(2)(B)(ii). B. Eleventh Amendment Plaintiff’s claims against Governor Andrew M. Cuomo, Attorney General Letitia James, and Assistant Attorney General Charles Sanders are barred by the Eleventh Amendment. “[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). Plaintiff’s § 1983 claims against these Defendants are therefore barred by the Eleventh Amendment and are dismissed. 28 U.S.C. § 1915 (e)(2)(B)(iii). C. Judicial Immunity Plaintiff’s claims against Justice Ellen Gesmer, Hon. Arlene Goldberg, and Hon. Jill Konviser must be dismissed. Judges 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 . Judicial immunity does not apply when the judge takes action “outside” his judicial capacity, or when the judge takes action that, although judicial in nature, is taken “in absence of jurisdiction.” Mireles, 502 U.S. at 9-10 ; see also Bliven, 579 F.3d at 209-10 (describing actions that are judicial in nature). But “the scope of [a] judge’s jurisdiction must be construed broadly where the issue is the immunity of the judge.” Stump v. Sparkman, 435 U.S. 349, 356 (1978). Plaintiff’ s claims against Justice Ellen Gesmer, Hon. Arlene Goldberg, and Hon. Jill Konviser arise of out of their rulings and actions while presiding over Plaintiff’s criminal proceedings; such rulings and actions were within the scope of their judicial capacities and jurisdiction. The Court therefore dismisses Plaintiff’s claims against Justice Ellen Gesmer, Hon. Arlene Goldberg, and Hon. Jill Konviser under the doctrine of judicial immunity and as frivolous. See 28 U.S.C. § 1915 (e)(2)(B)(i), (iii); Mills v. Fischer, 645 F.3d 176, 177 (2d Cir. 2011) (“Any claim dismissed on the ground of absolute judicial immunity is ‘frivolous’ for purposes of [the in forma pauperis statute].”); Montero v. Travis, 171 F.3d 757, 760 (2d Cir. 1999) (“A complaint will be dismissed as ‘frivolous’ when ‘it is clear that the defendants are immune from suit.’” (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989))). D. Prosecutorial Immunity Plaintiff’s claims against District Attorney Cyrus Vance Jr. and Assistant District Attorney Shipla Kalra must also be dismissed. 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 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). Here, Plaintiff’s claims against District Attorney Cyrus Vance Jr. and Assistant District Attorney Shipla Kalra are based on their 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 Defendants who are 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”). E. Private Defendants 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). Because Attorneys Susan Calvello, Lawrence Schwartz, and William Kendall are private parties who do not work for any state or other government body, Plaintiff has not stated a claim against them under § 1983. 28 U.S.C. § 1915 (e)(2)(B)(ii). F. Personal Involvement 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. Colon, 58 F.3d at 873 .3 Plaintiff does not allege any facts showing how Mayor Bill DeBlasio, Commissioner James O’Neill, and Commissioner Anthony Annucci were personally involved in the events underlying his claims. Plaintiff’s claims against these Defendants 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). G. Heck v. Humphrey Because Plaintiff was convicted and because he does not allege that the conviction was reversed, expunged, or otherwise declared invalid, the Court must dismiss Plaintiff’s § 1983 claims of false arrest and malicious prosecution. These claims are barred by the favorable termination rule set forth in Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). The United States Supreme Court has explained: that a state prisoner’s § 1983 action is barred (absent prior invalidation) – no matter the relief sought (damages or equitable relief), no matter the target of the prisoner’s suit (state conduct leading to conviction or internal prison proceedings) – if success in that action would necessarily demonstrate the invalidity of confinement or its duration. Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (italics in original); see Heck, 512 U.S. at 486-87 (“[I]n order to recover damages for [an] allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus[.]”). 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). Because success on Plaintiff’s § 1983 claims would necessarily imply the invalidity of his conviction, and because Plaintiff has not alleged that his conviction was overturned or otherwise invalidated, Heck’s favorable termination rule bars these claims for money damages. See Perez v. Cuomo, No. 09-CV-1109 (SLT), 2009 WL 1046137 , at *7 (E.D.N.Y. Apr. 17, 2009) (“Since plaintiff’s conviction remains valid, plaintiff’s claim for violation of his right to a fair trial is not cognizable under § 1983.”). The Court must therefore dismiss Plaintiff’s § 1983 claims of false arrest and malicious prosecution. See 28 U.S.C. § 1915 (e)(2)(b)(ii). H. Section 1983 as Habeas Corpus Relief Plaintiff may not obtain release from custody in a § 1983 action; he can only obtain such relief by bringing a petition for a writ of habeas corpus under 28 U.S.C. § 2254 . See Wilkinson v. Dotson, 544 U.S. 74, 78-82 (2005) (citing Preiser v. Rodriguez, 411 U.S. 475 (1973)) (noting that writ of habeas corpus is sole remedy for prisoner seeking to challenge the fact or duration of his confinement). A state prisoner may not circumvent the exhaustion requirement for habeas corpus relief by requesting release from custody in a civil action. Preiser, 411 U.S. at 489-90 . To the extent that this submission can be construed as a § 2254 petition, the petition must be dismissed because it does not demonstrate that plaintiff has exhausted his available state remedies in accordance with 28 U.S.C. § 2254 (b) and (c).4 See Coleman v. Thompson, 501 U.S. 722, 731 (1991) (“[A] state prisoner’s federal habeas petition should be dismissed if the prisoner 4 Plaintiff should note that under the Antiterrorism and Effective Death Penalty Act of 1996, which modified the habeas corpus statutes, a person in state custody must generally file a § 2254 petition within one year from the latest of four benchmark dates: (1) when the judgment of conviction becomes final; (2) when a government-created impediment to making such a motion is removed; (3) when the constitutional right asserted is initially recognized by the Supreme Court, if it has been made retroactively available to cases on collateral review; or (4) when the facts supporting the claim(s) could have been discovered through the exercise of due diligence. See 28 U.S.C. § 2244 (d). has not exhausted available state remedies as to any of his federal claims.”). Plaintiff may file a petition for a writ of habeas corpus once all available state remedies have been exhausted. District courts generally grant a pro se plaintiff an opportunity to amend a complaint to cure its defects but leave to amend is not required where it would be futile. See Hill v. Curcione, 657 F.3d 116 , 123–24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Because the defects in Plaintiff’s complaint cannot be cured with an amendment, the Court declines to grant Plaintiff leave to amend his complaint. I. Litigation History This is Plaintiff’s second action challenging this arrest and subsequent conviction. The first action was also filed in the United States District Court for the Eastern District of New York and transferred to this Court. See Walden v. The New York Cnty. Dist. Atty. Office, ECF 1:17CV-9370, 1 (S.D.N.Y. Jan. 3, 2018). That action was dismissed for failure to state a claim and for seeking monetary relief against Defendants who are immune from such relief. Id. at ECF No. 9. By Mandate issued on April 16, 2018, the United States Court of Appeals for the Second Circuit deemed the appeal in default for Plaintiff’s failure to pay the filing fee or to move to proceed IFP. Id. at ECF No. 12. Plaintiff has filed an amended complaint in that closed case. Id. at ECF No. 13. By order dated September 12, 2019, the Court construed Plaintiff’s amended complaint as a motion for reconsideration and denied the motion. Id. at ECF No. 16. The Prison Litigation Reform Act (PLRA) includes the following “three-strikes” provision: In no event shall a prisoner bring a civil action ... if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 28 U.S.C. § 1915 (g). This action is the second IFP action Plaintiff has filed while a prisoner that has been dismissed on “strike” grounds. Plaintiff is cautioned that if he files another action while a prisoner and that action is dismissed and proves to be a “strike,” the Court will be required under the “three-strikes” provision to deny him IFP status in future actions he files while a prisoner, unless he alleges that he is under imminent danger of serious physical injury. The Court also warns Plaintiff that further vexatious, frivolous, or nonmeritorious litigation in this Court can also result in an order barring Plaintiff from filing new actions IFP unless he receives prior permission. See 28 U.S.C. § 1651 . CONCLUSION The Clerk of Court is directed to assign this matter to my docket, mail a copy of this order to Plaintiff, and note service on the docket. Plaintiff's complaint, filed IFP under 28 U.S.C. § 1915 (a)(1), is dismissed pursuant to 28 U.S.C. § 1915 (e)(2)(B)(i)-(i1). All other requests are denied as moot. 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. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED. Dated: September 24, 2019 New York, New York hie. Iu hick Chief United States District Judge — 11 —