Opinion
No. 05 Civ. 2899 (LAK).
July 14, 2005
MEMORANDUM AND ORDER
The plaintiff in this case is the former husband of defendant Jianping Wang, whom the pro se complaint describes as a "high-ranking Westchester County administrator conjoined within the Westchester County political apparatus." At the time the complaint was filed, he was an inmate at New York's Oneida Correctional Facility ("OCF"), where he was serving a sentence of 1½ to 4½ years for forgery and endangering the welfare of a minor. The gist of the complaint is that his former wife had caused Judie Skelton, a Westchester County probation officer, to include in the presentence report with respect to the forgery and endangerment conviction, with knowledge that the information was false, baseless accusations by Wang that plaintiff had sexually abused his then stepdaughter. This allegedly resulted in plaintiff's treatment by the Department of Correctional Services as a sex offender, an initial denial of parole, and other unfavorable treatment while in prison. The complaint sought a declaration that Skelton's actions were unlawful and an order requiring correction of the presentence report.
Cpt. ¶ 15.
The Court now has been presented with an application for a temporary restraining order and a preliminary injunction which expands substantially on the foregoing. Plaintiff asserts that he was released from OCF in March despite Wang's best efforts to block his release. On April 15, 2005, he telephoned Wang's attorney in an effort to determine whether the attorney would accept service of process in this action on behalf of Wang. Upon being advised of this inquiry, Wang allegedly contacted a Westchester assistant district attorney. The district attorney's office then allegedly charged or caused plaintiff to be charged with aggravated harassment 2nd degree (N.Y. Penal L. § 240.30) and criminal contempt 2d degree ( id. § 215.50), both misdemeanors, in the Justice Court of the Village of Mount Kisco on the theory that his call to Wang's attorney constituted harassment as well as a violation of an order of protection in favor of Wang. Plaintiff was arrested on April 21, 2005 and has been in the Westchester County jail awaiting trial on these charges ever since. But this is not the end of his story.
Plaintiff claims that the Westchester District Attorney's office sought $250,000 cash bail on these misdemeanor charges. He claims further that, on the day of his arrest, a Westchester County Department of Corrections sergeant told another officer in plaintiff's presence: "I just got off the horn with the D.A. This little fuck is not to be anywhere near a phone tonight, and he does not go from point A to point B without an escort." He then was classified a AAA security risk and placed in the so-called "old jail," which is used for violent felony offenders, gang members, escape risks, and discipline. He apparently still is housed there, allegedly without justification.
Bail ultimately was set at $30,000. It appears that plaintiff has not made bail.
On the day following plaintiff's arrest, he claims to have spoken to a parole officer. The officer, he says, explained what had transpired in the District Attorney's office. The officer allegedly said that one of the detectives said the following: 1) "I think you have put yourself in a bad position — Jeanine Pirro is involved personally," 2) Don't fight the case in Mt. Kisco — whatever they offer you, just take it . . .", 3) "Jeanine Pirro will crush you into the pavement with her stiletto heels;" 4) "Those people [the West. Cty. DA Office] will send you back to state prison if you try to fight this thing;' 5) "Your ex-wife has a lot of juice, and she wants you sent away — you would have been better off calling her instead of her lawyer."
Gams Aff. ¶ 25 (emphasis in original).
Id. (emphasis added).
On the following day, according to plaintiff, another individual, who identified himself only as a county employee, visited him at the jail. The visitor explained to plaintiff that he would not be sent back to state prison if he "behaved himself" and that if he was "thinking about a lawsuit naming your ex, forget about it — she should not exist for you."
Id. ¶ 26.
Subsequently, plaintiff claims, his criminal attorney filed a motion in the Mount Kisco Justice Court to dismiss the charges. Shortly thereafter, an assistant warden at the Westchester County jail allegedly told plaintiff's criminal lawyer that plaintiff's AAA status at the jail had been mandated by the District Attorney's office. Later that day, after a call to the assistant district attorney from plaintiff's lawyer, plaintiff's classification was dropped to AA, which he claims is appropriate. But he remains in the old jail.
The motion apparently remains pending.
Id. ¶ 33.
In view of the foregoing, the essence of plaintiff's current grievance is clear enough. He claims that he was arrested on trumped up charges by the District Attorney's office because his ex-wife, allegedly a high ranking county official, "has a lot of juice" and is well connected politically. The prosecution and the onerous conditions in which he has been held, in his view, are designed to force him to drop this action against his former wife and others who allegedly were involved in the inaccurate presentence report that is said to have caused him trouble while he was in state prison on the forgery and endangerment charges. Which brings us to the present application.
The application seeks an order restraining Wang and others acting in concert with her from: "1) Any act designed to intimidate Plaintiff; 2) Any act of coercion; 3) The initiation of further unprecedented, quetionable [ sic], or wanton criminal complaints lodged against Plaintiff, or any official act that could be interpreted as retaliatory; 4) Any act intentionally designed to illegitamtely [ sic] deprive or compromise the Plaintiff of his liberty while the instant action is pending."
Fed.R.Civ.P. 65(d) provides in relevant part that "[e]very order granting an injunction and every restraining order "shall be specific in terms." Such an order must be clear enough to give full and fair notice to those bound by it of precisely what is prohibited.
The relief sought by plaintiff must be denied on this basis alone, as the terms of the order he seeks do not approach this standard. Moreover, the application in part seeks a restraint against the filing of certain criminal complaints in state court — relief available from federal courts only in narrow circumstances and even then only when there is a clear threat of irreparable injury, see, e.g., Younger v. Harris, 401 U.S. 37, 43-54 (1971), a difficult showing in the absence of proof that the state courts would be unwilling to give fair consideration to a claim that any such complaint was insufficient or otherwise improper.
These considerations counsel against the issuance of a temporary restraining order or order to show cause. Nevertheless, if, as plaintiff claims, the Westchester County District Attorney's office and Department of Corrections are attempting to pressure plaintiff into dropping this action, plaintiff's constitutional rights probably are being violated. Given plaintiff's lack of legal skills and his present incarceration, it is evident that he cannot effectively prosecute this action or seek whatever relief may be available. Accordingly, upon a showing that plaintiff is unable to afford private counsel, the Court would entertain an action for the appointment of counsel on his behalf. The present application, however, is denied.
SO ORDERED.