Opinion
6:23-CV-0431 (LEK/ML)
05-10-2023
DANIELLE C. HENDRICKS, Plaintiff, v. UTICA PUBLIC DEFENDERS; ELIZABETH, Last Name Unknown-Utica Public Defender Office; FRANK, Last Name Unknown, only handle misdemeanors-Utica Public Defender Office; JUDGE SABB, Criminal Court Judge; and UTICA DISTRICT ATTORNEY, Defendants.
DANIELLE C. HENDRICKS Plaintiff, Pro Se.
DANIELLE C. HENDRICKS Plaintiff, Pro Se.
ORDER AND REPORT-RECOMMENDATION
MIROSLAV LOVRIC, United States Magistrate Judge.
The Clerk has sent a pro se complaint in the above captioned action together with an application to proceed in forma pauperis and a motion for appointment of counsel filed by Plaintiff Danielle C. Hendricks (“Plaintiff”) to the Court for review. (Dkt. Nos. 1, 6, 8.) For the reasons discussed below, I (1) grant Plaintiff's in forma pauperis application (Dkt. No. 6), (2) deny Plaintiff's motion for appointment of counsel (Dkt. No. 8), and (3) recommend that Plaintiff's Complaint (Dkt. No. 1) be dismissed in its entirety in part (1) with leave to amend, and (2) without leave to amend
I. BACKGROUND
On April 5, 2023, Plaintiff commenced this action by filing a pro se Complaint against defendants Utica Public Defenders, Elizabeth, Frank, Judge Sabb, and Utica District Attorney (collectively “Defendants”). (Dkt. No. 1.) In addition, Plaintiff filed a motion for leave to proceed in forma pauperis (Dkt. No. 6) and a motion for appointment of counsel (Dkt. No. 8).
The Complaint is on a form complaint, which purports to assert civil rights actions arising under 42 U.S.C. § 1983. (See generally Dkt. No. 1.) The Complaint alleges that Plaintiff was represented by Defendant Utica Public Defenders office in a criminal proceeding before Defendant Sabb. (Dkt. No. 1 at 2.) The Complaint alleges that Plaintiff rejected a plea offer but that Defendants Frank, Elizabeth, and Sabb agreed to dismiss the charges on the condition that Plaintiff serve a term of 90 days in a psychiatric hospital. (Id. at 1-2.) Plaintiff alleges that Defendants accused her of having schizophrenia. (Id. at 2.)
Based on these factual allegations, Plaintiff appears to assert the following two claims: (1) a claim that Defendants violated her right to an attorney pursuant to the Sixth Amendment and 42 U.S.C. § 1983; and (2) a claim that Defendants provided ineffective assistance of counsel. (See generally Dkt. No. 1.) As relief, Plaintiff appears to be seeking $2,000,000.00 in compensatory damages, Defendants to be disbarred, and her son to be placed back in her custody. (Id.)
For a more complete statement of Plaintiff's claims, refer to the Complaint. (Dkt. No. 1.)
II. PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS
“When a civil action is commenced in a federal district court, the statutory filing fee, currently set at $402, must ordinarily be paid. 28 U.S.C. § 1914(a). A court is authorized, however, to permit a litigant to proceed in forma pauperis status if a party “is unable to pay” the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1). After reviewing Plaintiff's in forma pauperis application (Dkt. No. 6), the Court finds that Plaintiff meets this standard. Therefore, Plaintiff's application to proceed in forma pauperis is granted.
The language of that section is ambiguous because it suggests an intent to limit availability of in forma pauperis status to prison inmates. See 28 U.S.C. § 1915(a)(1) (authorizing the commencement of an action without prepayment of fees “by a person who submits an affidavit that includes a statement of all assets such prisoner possesses”). The courts have construed that section, however, as making in forma pauperis status available to any litigant who can meet the governing financial criteria. Hayes v. United States, 71 Fed.Cl. 366, 367 (Fed. Cl. 2006); Fridman v. City of N.Y., 195 F.Supp.2d 534, 536 n.1 (S.D.N.Y. 2002).
Plaintiff is reminded that, although her application to proceed in forma pauperis has been granted, she is still required to pay fees that she may incur in this action, including copying and/or witness fees.
III. LEGAL STANDARD FOR REVIEW OF THE COMPLAINT
“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2).
In determining whether an action is frivolous, the court must consider whether the complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Dismissal of frivolous actions is appropriate to prevent abuses of court process as well as to discourage the waste of judicial resources. Neitzke, 490 U.S. at 327; Harkins v. Eldridge, 505 F.2d 802, 804 (8th Cir. 1974); see Fitzgerald v. First East Seventh Street Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000) (a district court “may dismiss a frivolous complaint sua sponte even when the plaintiff has paid the required filing fee[.]”); see also Pflaum v. Town of Stuyvesant, Columbia Cnty., N.Y., 11-CV-0335, 2016 WL 865296, at *1, n.2 (N.D.N.Y. Mar. 2, 2016) (Suddaby, C.J.) (finding that the Court had the power to address and dismiss additional theories of the plaintiff's retaliation claim sua sponte because those theories were so lacking in arguable merit as to be frivolous).
In order to state a claim upon which relief can be granted, a complaint must contain, inter alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The requirement that a plaintiff “show” that he or she is entitled to relief means that a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 [2007]). “Determining whether a complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial experience and common sense....[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (internal citation and punctuation omitted).
“In reviewing a complaint . . . the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); see also Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam) (reading the plaintiff's pro se complaint “broadly, as we must” and holding that the complaint sufficiently raised a cognizable claim). “[E]xtreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and [the] parties . . . have had an opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983).
IV. ANALYSIS
In addressing the sufficiency of a plaintiff's complaint, the court must construe her pleadings liberally. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Having reviewed Plaintiff's Complaint with this principle in mind, I recommend that all causes of action be dismissed.
A. Claims Against Defendant Sabb
1. Request for Monetary Relief
Plaintiff's claims under § 1983 seeking monetary damages against Defendant Sabb, who acted as the criminal law judge, are barred under the doctrine of judicial immunity. Under this doctrine, judges are absolutely immune from suit for claims for damages for any actions taken within the scope of their judicial responsibilities. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991). Generally, “acts arising out of, or related to, individual cases before [a] judge are considered judicial in nature.” Bliven v. Hunt, 579 F.3d 204, 210 (2d Cir. 2009). “[E]ven allegations of bad faith or malice cannot overcome judicial immunity.” Bliven, 579 F.3d at 209. 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). Further, 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 a judge takes action outside his or her judicial capacity, or when a judge takes action that, although judicial in nature, is taken “in the complete absence of all jurisdiction.” Mireles, 502 U.S. at 11-12; see also Bliven, 579 F.3d at 209-10 (describing actions that are judicial in nature). However, “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 asserts claims arising from the efforts of Defendant Sabb, in his capacity as a New York State criminal court judge, to address criminal charges pending against Plaintiff. Plaintiff fails to allege facts plausibly suggesting that Defendant Sabb acted beyond the scope of his judicial responsibilities.
As a result, to the extent that the Complaint seeks monetary damages against Defendant Sabb, I recommend that it be dismissed because Defendant Sabb is immune from such relief, 28 U.S.C. § 1915(e)(2)(B)(iii), and, consequently, as frivolous, 28 U.S.C. § 1915(e)(2)(B)(i). Mills v. Fischer, 645 F.3d 176, 177 (2d Cir. 2011) (claims dismissed because of judicial immunity are frivolous for the purpose of the IFP statute, 28 U.SC. § 1915).
2. Request for Declaratory/Injunctive Relief
Insofar as Plaintiff seeks declaratory or injunctive relief against Defendant Sabb alleging that the representation by Defendants Utica Public Defender, Elizabeth, and Frank violated certain attorney or ethical misconduct rules, disciplinary rules, and/or the New York State Rules of Professional Conduct, “violations of attorney rules of professional conduct or state ethical rules or guidelines for attorneys do not form a basis of a constitutional claim for the same reasons that a legal malpractice claim . . . does not suffice to set forth a claim under section 1983.” Caldwell v. Petros, 22-CV-0567, 2022 WL 15697608, at *3 (N.D.N.Y. Oct. 28, 2022) (Hummel, M.J.), report and recommendation adopted by, 2022 WL 16918287 (N.D.N.Y. Nov. 14, 2022) (Sannes, C.J.). Moreover, Plaintiff fails to allege facts plausibly suggesting that Defendant Sabb is liable for any deficiencies in the representation of Plaintiff by other defendants. As a result, I recommend that Plaintiff's claims requesting declaratory or injunctive relief against Defendant Sabb be dismissed for failure to state a claim upon which relief may be granted.
The Court notes that Plaintiff's claims may also be barred by the Rooker-Feldman doctrine, to the extent that the state judicial proceedings against Plaintiff terminated before the filing of this action. See Neroni v. Peebles, 14-CV-0584, 2014 WL 12768331, at *8 (N.D.N.Y. June 20, 2014) (Suddaby, J.) (citing Neroni v. Zayas, 13-CV-0127, 2014 WL 1311560, at *4 (N.D.N.Y. Mar. 31, 2014) (Kahn, J.)) (dismissing the plaintiff's claims and finding that, “[i]n the alternative, to the extent the state judicial proceedings against Plaintiff terminated before the filing of this action . . ., the claims challenging those proceedings appear to be barred by the Rooker-Feldman doctrine.”).
B. Claims Against Defendant Utica District Attorney
1. Request for Monetary Relief
Plaintiff's claims against Defendant Utica District Attorney-which seek monetary damages-are barred by the Eleventh Amendment to the United States Constitution. “Stated as simply as possible, the Eleventh Amendment means that, as a ‘general rule, state governments may not be sued in federal court unless they have waived their Eleventh Amendment immunity,' or unless Congress has ‘abrogate[d] the states' Eleventh Amendment immunity when acting pursuant to its authority under Section 5 of the Fourteenth Amendment.'” Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009) (quoting Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir. 2006)). “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.” Woods, 466 F.3d at 236. “‘When prosecuting a criminal matter, a district attorney in New York State, acting in a quasi-judicial capacity, represents the State not the county.'” Ying Jing Gan v. City of New York, 996 F.2d 522, 536 (2d Cir. 1993) (quoting Baez v. Hennessy, 853 F.2d 73, 77 (2d Cir. 1988), cert. denied, 488 U.S. 1014 (1989)).
As a result, Plaintiff's claims against Defendant Utica District Attorney, seeking monetary damages, are barred by the Eleventh Amendment. See Best v. Brown, 19-CV-3724, 2019 WL 3067118, at *2 (E.D.N.Y. July 12, 2019) (dismissing the plaintiff's claim against the Office of the Queens County District Attorney as barred by the Eleventh Amendment); see also D'Alessandro v. City of New York, 713 Fed.Appx. 1, 8 (2d Cir. 2017) (citing Ying Jing Gan v. City of New York, 996 F.2d 522, 536 (2d Cir. 1993)) (“[I]f a district attorney or an assistant district attorney acts as a prosecutor, she is an agent of the state, and therefore immune from suit in her official capacity.”); Rich v. New York, 21-CV-3835, 2022 WL 992885, at *5 n.4 (S.D.N.Y. Mar. 31, 20221) (“any claims Plaintiff may raise against the DA Defendants in their ‘official capacity' would be precluded by immunity under the Eleventh Amendment.”); Gentry v. New York, 21-CV-0319, 2021 WL 3037709, at *6 (N.D.N.Y. June 14, 2021) (Lovric, M.J.) (recommending dismissal of the plaintiff's claims against the defendant assistant district attorneys in their official capacities-which were effectively claims against the State of New York-as barred by the Eleventh Amendment), adopted by Gentry v. New York, 2021 WL 3032691 (N.D.N.Y. July 19, 2021) (Suddaby, C.J.).
2. Request for Injunctive Relief
For the reason set forth above in Part IV.A.2. of this Order and Report-Recommendation, I recommend that Plaintiff's request for declaratory or injunctive relief against Defendant Utica District Attorney be dismissed for failure to state a claim upon which relief may be granted.
As set forth above in note 3, supra, Plaintiff's claims may also be barred by the Rooker-Feldman doctrine.
C. Claims Against Defendants Utica Public Defender, Elizabeth, Frank
Plaintiff's claims against Defendants Utica Public Defender, Elizabeth, and Frank, in their capacities representing Plaintiff against criminal charges should be dismissed for failure to state a claim upon which relief may be granted.
“[I]t is axiomatic that a “public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding.” Flores v. Levy, 07-CV-3753, 2008 WL 4394681, at *7 (E.D.N.Y. Sept. 23, 2008) (citing, inter alia, Rodriguez v. Weprin, 116 F.3d 62, 65-66 (2d Cir. 1997) (“it is well-established that court-appointed attorneys performing a lawyer's traditional functions as counsel to defendant do not act ‘under color of state law' and therefore are not subject to suit under 42 U.S.C. § 1983”)); Benjamin v. Branden, 21-CV-4927, 2022 WL 1092681, at *2 (E.D.N.Y. Apr. 12, 2022) (collecting cases). “Section 1983 ‘was enacted to redress civil rights violations by persons acting under color of State law' and should not be used by clients disappointed with the performance of their attorneys.” Brooks v. New York State Supreme Court, 02-CV-4183, 2002 WL 31528632, at *3 (E.D.N.Y. Aug. 16, 2002) (citation omitted)).
As a result, I recommend that Plaintiff's claims against Defendants Utica Public Defender, Elizabeth, and Frank, for their actions representing Plaintiff in the criminal proceeding, be dismissed for failure to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).
To the extent that Plaintiff's claims are construed as alleging a conspiracy among Defendants, I recommend that they be dismissed. First, Plaintiff's claim is speculative and conclusory, and the allegations are insufficient to plausibly suggest a conspiracy that would qualify Defendants Utica Public Defender, Elizabeth, and Frank as state actors. Flores v. Levey, 07-CV-3753, 2008 WL 4394681, at *10 (E.D.N.Y. Sept. 23, 2008) (collecting cases) (allegations that Legal Aid attorneys engaged in numerous conspiracies with the other defendants “(1) denying plaintiff his right to counsel; (2) preventing plaintiff from testifying before the grand jury; (3) allowing the defendant prosecutors to ‘lift' the indictment into the county court; and (4) adding the additional charge of assault in the first degree to the indictment” did not support a plausible claim of conspiracy with the other defendants). Second, even if Plaintiff's conspiracy claim was found to be more than conclusory as pleaded, Plaintiff could not establish a conspiracy among Defendants. As set forth above in Parts IV.A. and IV.B. of this Order and ReportRecommendation, I recommend that the claims against Defendants Sabb and Utica District Attorney be dismissed as they are immune from suit. “Where [the] plaintiff's only conspirators are protected by absolute immunity, ‘Plaintiff's defense attorney[] therefore had no state actor with whom [he] could have conspired, rend[er]ing Plaintiff's conspiracy claim deficient as a matter of law.'” Williams v. Cnty. of Onondaga, 22-CV-1367, 2023 WL 2563181, at *8 (N.D.N.Y. Feb. 21, 2023) (Baxter, M.J.), report and recommendation adopted by, 2023 WL 2563210 (N.D.N.Y. Mar. 16, 2023) (McAvoy, J.). Defendants Utica Public Defender, Elizabeth, and Frank are employees of a single entity and thus are legally incapable of conspiring together pursuant to the “intra-agency conspiracy” doctrine. See Giles v. Fitzgerald, 20-CV-0980, 2020 WL 6287459, at *6 (N.D.N.Y. Oct. 27, 2020) (Lovric, M.J.) (finding that the intra-agency conspiracy doctrine barred a conspiracy claim among the defendants who were officers employed by the Syracuse Police Department), report and recommendation adopted by, 2021 WL 248048 (N.D.N.Y. Jan. 26, 2021) (D'Agostino, J.).
V. OPPORTUNITY TO REPLEAD
Generally, a court should not dismiss claims contained in a complaint filed by a pro se litigant without granting leave to replead at least once “when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991); see also Fed.R.Civ.P. 15(a)(2) (“The court should freely give leave when justice so requires.”). An opportunity to replead is not required, however, where “the problem with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact sufficient to support its claim, a complaint should be dismissed with prejudice.”). Stated differently, “[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993); accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.).
See also Carris v. First Student, Inc., 132 F.Supp.3d 321, 340-41 n.1 (N.D.N.Y. 2015) (Suddaby, C.J.) (explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999)-that the Court should grant leave to amend “unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would be successful in stating a claim”-is likely not an accurate recitation of the governing law after Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev'd on other grounds, 682 Fed.Appx. 30.
Here, better pleading could not cure the Court's lack of subject matter jurisdiction based on the immunities described above with respect to Plaintiff's claims pursuant to 42 U.S.C. § 1983 against Defendants Sabb and Utica District Attorney seeking monetary damages. See Britt v. Doe, 22-CV-0692, 2022 WL 16579207, at *9 (N.D.N.Y. Oct. 13, 2022) (Lovric, M.J.) (recommending dismissal without prejudice and without leave to amend, the plaintiff's claims against defendants who are immune from suit), report and recommendation adopted by, 2022 WL 16571391 (N.D.N.Y. Nov. 1, 2022) (Sharpe, J.).
However, it is not clear whether a better pleading would permit Plaintiff to assert a cognizable claim pursuant to 42 U.S.C. § 1983 against (1) Defendants Sabb and Utica District Attorney for declaratory/injunctive relief, and (2) Defendants Utica Public Defender, Elizabeth, and Frank. Out of deference to Plaintiff's pro se status, I recommend that Plaintiff be granted leave to amend the Complaint with respect to those claims.
If Plaintiff chooses to avail herself of an opportunity to amend, such amended pleading must set forth a short and plain statement of the facts on which she relies to support any legal claims asserted. Fed.R.Civ.P. 8(a). In addition, the amended complaint must include allegations reflecting how the individuals named as Defendants are involved in the allegedly unlawful activity. Finally, Plaintiff is informed that any amended complaint will replace the existing Complaint, and must be a wholly integrated and complete pleading that does not rely upon or incorporate by reference any pleading or document previously filed with the Court. See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (“It is well established that an amended complaint ordinarily supersedes the original, and renders it of no legal effect.” (internal quotation marks omitted)).
VI. PLAINTIFF'S MOTION TO APPOINT COUNSEL
Plaintiff has also submitted a request for appointment of counsel. (Dkt. No. 8.)
As an initial matter, “[a] party has no constitutionally guaranteed right to the assistance of counsel in a civil case.” Leftridge v. Connecticut State Trooper Officer No. 1283, 640 F.3d 62, 68 (2d Cir. 2011) (citations omitted). Courts cannot utilize a bright-line test in determining whether counsel should be appointed on behalf of an indigent party. Hendricks v. Coughlin, 114 F.3d 390, 392-93 (2d Cir. 1997). Instead, a number of factors must be carefully considered by the court in ruling upon such a motion. As a threshold matter, the court should ascertain whether the indigent's claims seem likely to be of substance. A motion for appointment of counsel may be properly denied if the court concludes that the plaintiff's “chances of success are highly dubious.” Leftridge, 640 F.3d at 69. If the court finds that the claims have substance, the court should then consider:
[T]he indigent's ability to investigate the crucial facts, whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder, the indigent's ability to present the case, the complexity of the legal issues and any special reason in th[e] case why appointment of counsel would be more likely to lead to a just determination.Terminate Control Corp., 28 F.3d at 1341 (quoting Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986)). This is not to say that all, or indeed any, of these factors are controlling in a particular case. Rather, each case must be decided on its own facts. Velasquez v. O'Keefe, 899 F.Supp. 972, 974 (N.D.N.Y. 1995) (McAvoy, C.J.) (citing Hodge, 802 F.2d at 61).
In the present matter, the Court has recommended dismissal of the action. As such, the Court cannot find that Plaintiff's claims are likely to be of substance. Plaintiff's motion (Dkt. No. 8) is therefore denied.
ACCORDINGLY, it is
ORDERED that Plaintiff's application to proceed in forma pauperis (Dkt. No. 6) is GRANTED only for purposes of filing and any appeal unless the trial court certifies in writing that the appeal is not taken in good faith; and it is further
ORDERED that Plaintiff's motion for appointment of counsel (Dkt. No. 8) is DENIED without prejudice; and it is further respectfully
RECOMMENDED that the Court DISMISS WITHOUT PREJUDICE AND WITHOUT LEAVE TO AMEND the Complaint (Dkt. No. 1) to the extent that it seeks monetary relief from Defendants Sabb and Utica District Attorney, who are immune from such relief pursuant to 28 U.S.C. § 1915(e)(2)(B); and it is further respectfully
RECOMMENDED that the Court DISMISS WITH LEAVE TO AMEND the Complaint (Dkt. No. 1) to the extent that it (1) seeks declaratory/injunctive relief from Defendants Sabb and Utica District Attorney, and (2) alleges claims pursuant to 42 U.S.C. § 1983 against Defendants Utica Public Defender, Elizabeth, and Frank, for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B); and it is further respectfully
ORDERED that the Clerk of the Court shall file a copy of this order, report, and recommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules.
The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW . 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed.R.Civ.P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).
If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(C).