Opinion
5:23-cv-01385 (GTS/TWD)
02-06-2024
PRINELL PAUL, Plaintiff, v. ONONDAGA COUNTY DISTRICT ATTORNEY'S OFFICE, et al., Defendants.
PRINELL PAUL Plaintiff, pro se 05002328
PRINELL PAUL Plaintiff, pro se 05002328
ORDER AND REPORT-RECOMMENDATION
THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
The Clerk has sent to the Court for review a complaint filed by pro se plaintiff Prinell Paul pursuant to 42 U.S.C. § 1983 (“Section 1983”) asserting claims against the Onondaga County District Attorney's Office; William Fitzpatrick, District Attorney (“DA Fitzpatrick”); and Shea Maloy, Assistant District Attorney (“ADA Maloy”). (Dkt. No. 1.) Plaintiff has not paid the filing fee for this action and seeks leave to proceed in forma pauperis (“IFP”). (Dkt. No. 6.) Plaintiff also filed a motion for counsel. (Dkt. No. 3.)
II. IFP APPLICATON Section 1915 of Title 28 of the United States Code (“Section 1915”) “permits an indigent litigant to commence an action in a federal court without prepayment of the filing fee that would ordinarily be charged.” Cash v. Bernstein, No. 09-CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010). “Although an indigent, incarcerated individual need not prepay the filing fee at the time . . . of filing, he must subsequently pay the fee, to the extent he is able to do so, through periodic withdrawals from his inmate accounts.” Id. (citing 28 U.S.C. § 1915(b); Harris v. City of New York, 607 F.3d 18, 21 (2d Cir. 2010)).
On November 6, 2023, Plaintiff's first IFP application was denied and this action was administratively closed. (Dkt. No. 5.) The case was reopened on November 17, 2023, upon receipt of the required filing. (Dkt. Nos. 6, 7.)
Section 1915(g) prohibits a prisoner from proceeding IFP where, absent a showing of “imminent danger of serious physical injury,” a prisoner has filed three or more actions that were subsequently dismissed as frivolous, malicious, or failing to state a claim upon which relief may be granted. 28 U.S.C. § 1915(g). The Court has reviewed Plaintiff's litigation history on the Federal Judiciary's Public Access to Court Electronic Records (“PACER”) Service. PACER Case Locator, https://pcl.uscourts.gov/pcl/pages/search/findPartyAdvanced.jsf (last visited Jan. 31, 2024). Based on that review, it does not appear that Plaintiff had acquired three strikes for purposes of Section 1915(g) as of the date this action was commenced.
Upon review, Plaintiff's IFP application (Dkt. No. 6.), he has demonstrated sufficient economic need. See 28 U.S.C. § 1915(a)(2). Plaintiff has also filed the inmate authorization form required in this District. (Dkt. No. 4.) Accordingly, Plaintiff's IFP application is granted. (Dkt. No. 6.)
III. SUFFICIENCY OF THE COMPLAINT
A. Standard of Review
Having found Plaintiff meets the financial criteria for commencing this action IFP, and because he seeks relief from an officer or employee of a governmental entity, the Court must consider the sufficiency of the allegations set forth in complain in light of 28 U.S.C. §§ 1915(e) and 1915A. Section 1915(e) of Title 28 of the United States Code directs that, when a plaintiff seeks to proceed in forma pauperis, “the court shall dismiss the case at any time if the court determines that . . . (B) 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)(B).
To determine whether an action is frivolous, a court must look to see whether the complaint “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Similarly, under 28 U.S.C. § 1915A, a court must review any “complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity” and must “identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint . . . is frivolous, malicious, or 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. § 1915A(b); see also Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir. 1999) (per curiam) (noting Section 1915A applies to all actions brought by prisoners against government officials even when plaintiff paid the filing fee). The term “prisoner” includes pretrial detainees. 28 U.S.C. § 1915A(c).
Additionally, when reviewing a complaint, the Court looks to the Federal Rules of Civil Procedure. Rule 8 of the Federal Rules of Civil Procedure provides that a pleading which sets forth a claim for relief shall contain, inter alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” See Fed.R.Civ.P. 8(a)(2). The purpose of Rule 8 “is to give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer, prepare an adequate defense and determine whether the doctrine of res judicata is applicable.” Hudson v. Artuz, No. 95 Civ. 4768, 1998 WL 832708, at *1 (S.D.N.Y. Nov. 30, 1998) (quoting Powell v. Marine Midland Bank, No. 95-CV-0063 (TJM), 162 F.R.D. 15, 16 (N.D.N.Y. June 23, 1995)) (other citations omitted).
A court should not dismiss a complaint if the plaintiff has stated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While the court should construe the factual allegations in the light most favorable to the plaintiff, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. Thus, a pleading that contains only allegations which “are so vague as to fail to give the defendants adequate notice of the claims against them” is subject to dismissal. Sheehy v. Brown, 335 Fed.Appx. 102, 104 (2d Cir. 2009).
The Court will construe the allegations in the complaint with the utmost leniency. See, e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding a pro se litigant's complaint is to be held “to less stringent standards than formal pleadings drafted by lawyers”).
B. Summary of the Complaint
The incidents that form the foundation for the complaint occurred while Plaintiff was confined as at Onondaga County Correctional Facility. The following facts are set forth as alleged by Plaintiff in the complaint.
Since July 2, 2023, Plaintiff has been “held unlawfully” as a New York State prisoner at the Onondaga County Correctional Facility after he “copped out on parole” and was sentenced to 14 months for a parole violation. (Dkt. No. 1 at 1; Dkt. No. 6 at 7.)
Page references to documents identified by docket number are to the numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office. Unless otherwise indicated, excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected.
Plaintiff's complaint consists of four pages handwritten. (Dkt. No. 1.) Plaintiff also submitted a seven-page handwritten “complaint” with his IFP application. (See Dkt. No. 6 at 5-12.) At this early juncture, and in deference to Plaintiff's pro se status, rather than treat this additional complaint as a superseding pleading, the Court will consider the allegations as a supplement to his original complaint and consider them as a single pleading for purposes of initial review.
On June 8, 2023, Plaintiff was “denied to go” to his grand jury and ADA Maloy “held” his grand jury without him. Id. at 2. Plaintiff's lawyer, Eric Jerscske, also “denied” Plaintiff “his grand jury.” (Dkt. No. 6 at 6, 7.) During the grand jury proceeding, ADA Maloy “lied” and “committed perjury” by stating the “gun was operable” even though “they never recovered a gun.” (Dkt. No. 1 at 2-3.) Id. DA Fitzpatrick “allowed this and did not stop it.” Id. at 3. Plaintiff was “indicted on a sole possession of a gun charge a C-Felony criminal possession of a weapon in the 2nd degree in front of a Grand Jury.” (Dkt. No. 6 at 6.) On June 29, 2023, Plaintiff was arraigned on that charge and has been unlawfully held since June 2, 2023. Id. at 7.
Plaintiff sent “multiple dismissal of the case due to insufficient evidence and it was ignored.” (Dkt. No. 6 at 8.) Judge Doran has “refused to hear them” and has “denied his motion to review the grand jury minutes.” Id. Plaintiff claims he is “being unlawfully held on a BS indictment” all because of ADA Maloy lying under oath.” Id. DA Fitzpatrick has also “ignored” Plaintiff's written complaints. Id.
Plaintiff also claims that on June 4, 2023, he was “gang assaulted by 4 to 6 Deputies and Lieutenant Sheriff Deputy Jarvis due to the lie Asst. D.A Shae Maloy told the Grand Jury and due to the fact I was not informed to go to the Grand Jury or offered.” (Dkt. No. 1 a 3.) During this assault, Plaintiff's tooth was “knocked out” and another was “chipped . . . all because of this false baseless indictment.” (Dkt. No. 6 at 8.)
Plaintiff's “motions and letters to press charges against the Lieutenant Deputy Sheriff Jarvis who commanded and partook in the gang assault and motion to dismiss charges” has been “denied” and “not at all heard by” ADA Maloy and DA Fitzpatrick. Id.
Plaintiff alleges his constitutional rights were violated under the First, Sixth, Eighth, and Fourteenth Amendments. (Dkt. No. 1 at 3.) Plaintiff seeks monetary damages, injunctive relief, declaratory relief, “costs,” and any “additional relief this Court deems proper and equitable.” (Dkt. No. 6 at 9; Dkt. No. 1 at 4.)
C. Nature of Action
Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, which establishes a cause of action for ‘“the deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States.” Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (citations omitted); see also Myers v. Wollowitz, No. 95-CV-0272, 1995 WL 236245, at *2 (N.D.N.Y. Apr. 10, 1995) (finding that “§ 1983 is the vehicle by which individuals may seek redress for alleged violations of their constitutional rights”). “Section 1983 itself creates no substantive rights, [but] . . . only a procedure for redress for the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993). “To state a claim under § 1983, a plaintiff must allege that defendants violated plaintiff's federal rights while acting under color of state law.” McGugan v. Aldana-Bernier, 752 F.3d 224, 229 (2d Cir. 2014) (citations omitted).
IV. ANALYSIS
A. Onondaga County District Attorney's Office
Plaintiff names Onondaga County District Attorney's Office as a defendant. (Dkt. No. 1 at 1-2; Dkt. No. 6 at 1-2.) Under New York law, departments that are merely administrative arms of a municipality do not have a legal identity separate and apart from the municipality and therefore, cannot sue or be sued. See Henry v. Cnty. of Nassau, 6 F.4th 324, 336 (2d Cir. 2021) (citing Jenkins v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007)). “Courts have routinely applied this rule to conclude that ‘the District Attorney's Office is not a suable entity.'” Harris v. Tioga Cnty., 663 F.Supp.3d 212, 233 (N.D.N.Y. 2023) (quoting Woodward v. Office of Dist. Att'y, 689 F.Supp.2d 655, 658 (S.D.N.Y. 2010)); see, e.g., Griffith v. Sadri, No. 07-cv-4824, 2009 WL 2524961, at *8 (E.D.N.Y. Aug. 14, 2009) (“[A] district attorney's office is not a separate legal entity capable of being sued pursuant to § 1983.”); see also Adames v. Cnty. of Suffolk Court, No. 18-CV-4069, 2019 WL 2107261, at *2 (E.D.N.Y. May 14, 2019) (“Plaintiff's Section 1983 claims against the Jail, the County Court, and DA's Office are not plausible because none of these entities have independent legal identities.”).
Accordingly, the Court recommends that Plaintiff's Section 1983 claims against Onondaga County District Attorney's Office be dismissed with prejudice pursuant 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
B. DA Fitzpatrick and ADA Malay
Plaintiff seeks to sue DA Fitzpatrick and ADA Malay in their individual and official capacities. (Dkt. No. 1 at 1-2; Dkt. No. 6 at 1-2.)
1. Individual Capacity
“It is by now well established that a state prosecuting attorney who acted within the scope of his duties in initiating and pursing a criminal prosecution is immune from a civil suit for damages under § 1983.” Shmueli v. City of New York, 424 F.3d 231, 236 (2d Cir. 2005) (citation and internal quotation marks omitted) (collecting cases). “Because the immunity attaches to the official prosecutorial function . . . and because the initiation and pursuit of a criminal prosecution are quintessential prosecutorial functions . . . the prosecutor has absolute immunity for the initiation and conduct of a prosecution unless he proceeds in the clear absence of all jurisdiction.” Id. at 237 (citations and internal quotation marks omitted).
“Prosecutorial immunity from § 1983 liability is broadly defined, covering virtually all acts, regardless of motivation, associated with the prosecutor's function as an advocate.” Kroemer v. Tantillo, 758 Fed.Appx. 84, 86-87 (2d Cir. 2018). This includes “the decision to bring charges against a defendant, presenting evidence to a grand jury, and the evaluation of evidence prior to trial.” Moye v. City of New York, No. 11-cv- 316, 2012 WL 2569085, at *5 (S.D.N.Y. July 3, 2012) (internal quotation marks and citations omitted).
“[O]nce a court determines that challenged conduct involves a function covered by absolute immunity, the actor is shielded from liability for damages regardless of the wrongfulness of his motive or the degree of injury caused.” Bernard v. Cnty. of Suffolk, 356 F.3d 495, 503 (2d Cir. 2004) (citation omitted). Immunity even extends to the falsification of evidence and the coercion of witnesses, the knowing use of perjured testimony, the deliberate withholding of exculpatory information, the making of false or defamatory statements in judicial proceedings, and conspiring to present false evidence at a criminal trial. See Taylor v. Kavanagh, 640 F.2d 450, 452 (2d Cir. 1981); Imbler v. Pachtman, 424 U.S. 409, 431 n.34 (1976); Burns v. Reed, 500 U.S. 478, 490 (1991); Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994).
Here, the allegations against DA Fitzpatrick and ADA Maloy arise out of acts intimately associated with the judicial phase of the criminal process, in their role as advocates, including the initiation of criminal proceedings against Plaintiff and presenting evidence to a grand jury. See Ogunkoya v. Monaghan, 913 F.3d 64, 71 (2d Cir. 2019) (“The decision to initiate prosecution, what charges to bring, and how to perfect and consolidate those charges is a quintessential prosecutorial function.”) (citation omitted); Pinaud v. Cnty. of Suffolk, 52 F.3d 1139, 1149 (2d Cir. 1995) (holding district attorneys absolutely immune from claim for malicious prosecution and presentation of false evidence to the grand jury); Hill v. City of New York, 45 F.3d 653, 66061 (2d Cir. 1995) (holding prosecutors and those working under their direction absolutely immune for initiating prosecution and for conduct before a grand jury). Therefore, the prosecutors are entitled to absolute prosecutorial immunity.
Aside from this deficiency, “there is no federal constitutional right to testify before a grand jury, nor, for that matter, is there even a federal right to a grand jury in state criminal proceedings.” Franklin v. Warren Cnty. D.A.'s Off., No. 08-CV-0801, 2009 WL 161314, at *2 (N.D.N.Y. Jan. 21, 2009) (sua sponte dismissing Fourteenth Amendment claims as not cognizable under Section 1983, “as the factual basis for such claims - the lack of a preliminary hearing or appearance before the grand jury - do not implicate federal rights”) (citations omitted). As such, Plaintiff's Section 1983 claims related to the grand jury are not plausible.
As both DA Fitzpatrick and ADA Maloy are entitled to prosecutorial immunity, it is recommended the complaint against them be dismissed with prejudice pursuant 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
2. Official Capacity
The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. CONST. amend. XI. Regardless of the nature of the relief sought, in the absence of the State's consent or waiver of immunity, a suit against the State or one of its agencies or departments is proscribed by the Eleventh Amendment. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). “New York State has not consented to suit in federal court.” Abrahams v. Appellate Div. of Supreme Court, 473 F.Supp.2d 550, 556 (S.D.N.Y. 2007) (citing Trotman v. Palisades Interstate Park Comm'n, 557 F.2d 35, 38-40 (2d. Cir. 1977)). Section 1983 claims do not abrogate the Eleventh Amendment immunity of the states. See Quern v. Jordan, 440 U.S. 332, 340-41 (1979).
“When a defendant is sued in his official capacity, we treat the suit as one against the ‘entity of which an officer is an agent.'” D'Alessandro v. City of New York, 713 Fed.Appx. 1, 8 (2d Cir. 2017) (quoting Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)). “[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.” Id. (citing Ying Jing Gan v. City of New York, 996 F.2d 522, 536 (2d Cir. 1993)); see Rich v. New York, No. 21-CV-3835, 2022 WL 992885, at *5 n.4 (S.D.N.Y. Mar. 31, 2022) (“[A]ny 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, No. 21-CV-0319 (GTS/ML), 2021 WL 3037709, at *6 (N.D.N.Y. June 14, 2021) (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), report and recommendation adopted, 2021 WL 3032691 (N.D.N.Y. July 19, 2021).
As both DA Fitzpatrick and ADA Maloy are arms of the state, they are entitled to Eleventh Amendment immunity, and it is recommended that the complaint against them be dismissed with prejudice pursuant 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
C. Rule 10
Throughout the complaint, Plaintiff refers to various individuals and entities who are not identified in the caption, or list of parties, as defendants. (Dkt. No. 1 at 1, 2, 3; Dkt. No. 6 at 1, 2, 6, 7.) Plaintiff refers to Eric Jerscske, Judge Doran, Lieutenant Sheriff Deputy Jarvis, and “4 to 6” Deputies. (Dkt. No. 1 at 4; Dkt. No. 6 at 6, 7.)
Rule 10(a) of the Federal Rules of Civil Procedure provides that, “the title of the complaint must name all the parties.” Fed.R.Civ.P. 10(a). A party not named in the caption of the complaint is not a party to the action. Abbas v. U.S., No. 10-CV-0141, 2014 WL 3858398, at *2 (W.D.N.Y. Aug. 1, 2014) (holding that the failure to name the individual defendants against whom the plaintiff intends to assert claims makes it “infeasible for the Court to determine which of the individual officers mentioned in the body of the complaint should be deemed to be defendants to which claims”).
“If people are not also named in the caption of the [ ] complaint, they will not be defendants in the case.” Whitley v. Krinser, No. 06-CV-0575, 2007 WL 2375814, at *1 (W.D.N.Y. Aug. 15, 2007); see also Robles v. Armstrong, No. 3:03-CV-1634, 2006 WL 752857, at *1 n.1 (D. Conn. Mar. 17, 2006) (“The plaintiff refers to John Doe/Jane Doe of the Correctional Managed Health Care Program and John Doe/Jane Doe Members of the Revitalization Committee in the body of the amended complaint. Rule 10(a) of the Federal Rules of Civil Procedure requires that all defendants be listed in the caption of the complaint. Because the John and Jane Does are not listed in the caption of the amended complaint, they are not defendants and the court does not consider claims against them.”).
In this instance, while Plaintiff claims he was “gang assaulted” on June 4, 2023, by Lieutenant Sheriff Deputy Jarvis and “4 to 6” Deputies, whereby his tooth was knocked out and another one was chipped, the aforementioned individuals are not identified as defendants in the caption of the complaint or the list of parties. Thus, the Court will not construe the complaint to assert an excessive force claim against these individuals. See Gosier v. Paolozzi, No. 9:23-CV-1135 (GTS/MJK), 2024 WL 340776, at *2 (N.D.N.Y. Jan. 30, 2024).
Because better pleading could cure this deficiency, the Court recommends granting Plaintiff leave to amend.
For the same reason, the Court will not construe the complaint to include any claims or cause of actions against other private individuals referenced in the body of the complaint, Eric Jerscske or Judge Doran, as they are not identified as defendants in the caption of the complaint or list of parties.
The Court notes however, insofar as Plaintiff seeks to impose liability on his attorney based on the allegations in the complaint, such claims are not plausible because attorneys, whether court appointed or privately retained, are generally not state actors for purposes of Section 1983. See Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981). Regardless, Section 1983 claims related to grand jury proceeding are not plausible. See supra note 7 and accompanying text. Moreover, insofar as Plaintiff seeks to impose liability on Judge Doran based on the allegations in the complaint, judges are entitled to absolute immunity for actions relating to the exercise of their judicial functions. See Mireless v. Waco, 502 U.S. 9, 9-10 (1991). This is true however erroneous an act may have been, and however injurious its consequences were to the plaintiff. Young v. Selsky, 41 F.3d 47, 51 (2d Cir. 1994); see also Stump v. Sparkman, 435 U.S. 349, 357 (1978) (“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.”). This immunity applies to state court judges who are sued in federal court pursuant to Section 1983. Pizzolato v. Baer, 551 F.Supp. 355, 356 (S.D.N.Y. 1982), aff'd sub nom. Pizzolato v. City of New York, 742 F.2d 1430 (2d Cir. 1983).
D. Injunctive and Declaratory Relief
As noted, Plaintiff seeks injunctive and declaratory relief. Among other things, Plaintiff asks the Court to issue a “preliminary and permanent injunction ordering” DA Fitzpatrick and ADA Maloy “to drop the indictment and free me immediately” and “cease their unlawful imprisonment against Paul.” (Dkt. No. 6 at 9; Dkt. No. 1 at 4.)
However, the Supreme Court has established that habeas relief is the exclusive remedy in federal court for a state prisoner seeking a release from custody. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (holding that when a prisoner is challenging “the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.”).
Moreover, notwithstanding the deficiencies identified above, any claims seeking equitable relief likely would be subject to dismissal under abstention principles because it would require the Court to intervene in a state-court criminal proceeding. See, e.g., Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. 69, 73 (2013); see, e.g., Haskell v. Cuomo, No. 20-CV-3965, 2021 WL 861802, at *3 (E.D.N.Y. Mar. 8, 2021) (“[I]nsofar as Plaintiff seeks to have this Court dismiss the indictments against him, this Court cannot intervene in his state criminal proceedings.”); Henderson v. Fludd, No. 19-CV-2675, 2019 WL 4306376, at *3 (E.D.N.Y. Sept. 11, 2019) (dismissing the claims “insofar as plaintiff seeks injunctive relief relating to his on-going state court criminal prosecution.”).
V. OPPORTUNITY TO AMEND
Generally, before the Court dismisses a pro se complaint or any part of the complaint sua sponte, the Court should afford the plaintiff the opportunity to amend at least once; however, leave to re-plead may be denied where any amendment would be futile. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). Futility is present when the problem with 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) (citation omitted).
Upon review, and with due regard for Plaintiff's status as a pro se litigant, Plaintiff's complaint is subject to dismissal pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a claim upon which relief may be granted. In light of his pro se status, the Court recommends that Plaintiff be afforded the opportunity to file an amended complaint.
Notwithstanding the recommendation that each of the named defendants be dismissed with prejudice, the Court cannot say at this early stage of the litigation that Plaintiff would be unable to amend his complaint to state a viable Section 1983 claim related to the alleged June 4, 2023, gang assault. Thus, the Court recommends providing Plaintiff the opportunity to amend his complaint against the appropriate defendants.
If the District Court adopts this recommendation, and Plaintiff chooses to amend the complaint, Plaintiff must provide a short and plain statement of the relevant facts supporting his claims against each defendant named in the amended complaint. If Plaintiff does not know the name of a defendant, he may refer to the that individual as “John Doe” or “Jane Doe” in both the caption, list of parties, and body of the amended complaint. To the greatest extent possible, Plaintiff's amended complaint should describe all relevant facts supporting his case, including the dates and times, to his best approximation. Plaintiff must also describe how each defendant's acts or omissions violated his rights. The amended pleading must comply with Rules 8 and 10 of the Federal Rules of Civil Procedure. No facts or claims from the original complaint may be incorporated by reference, and piece pleadings are not permitted. Plaintiff must not reassert in his amended complaint claims that the Court has dismissed with prejudice.
VI. MOTION FOR COUNSEL
Plaintiff has also moved for the appointment of counsel. (Dkt. No. 3.) Plaintiffs bringing civil actions have no constitutional right to the appointment of counsel. See, e.g., United States v. Coven, 662 F.2d 162, 176 (2d Cir. 1981). However, the court may request an attorney to represent an indigent party. See 28 U.S.C. § 1915(e)(1). Courts cannot utilize a bright-line test in determining whether counsel should be appointed on behalf of an indigent party. See 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:
Plaintiff states he has made repeated efforts to obtain a lawyer, and he “attached” the letters to the motion. However, no letters are attached. (Dkt. No. 3.)
[The Court] should first determine whether the indigent's position seems likely to be of substance. If the claim meets this threshold requirement, the court should then consider the 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 that case why appointment of counsel would be more likely to lead to a just determination.Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994) (quoting Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986)) (internal quotation marks omitted). 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. See Velasquez v. O'Keefe, 899 F.Supp. 972, 974 (N.D.N.Y. 1995) (citing Hodge, 802 F.2d at 621). The Court must consider the issue of appointment carefully because “every assignment of a volunteer lawyer to an undeserving client deprives society of a volunteer lawyer available for a deserving cause.” Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172 (2d Cir. 1989).
At this juncture, the Court has found that the complaint fails to state a claim upon which relief may be granted. Consequently, until plaintiff files an amended complaint that the Court accepts for service, the Court cannot make the necessary assessment of plaintiff's claims under the standards promulgated by Hendricks. Therefore, Plaintiff's motion for appointment of counsel is denied without prejudice to renew. Any renewed motion for counsel must be accompanied by documentation that substantiates his efforts to obtain counsel from the public and private sector.
VII. CONCLUSION
Accordingly, it is hereby, ORDERED that Plaintiff's IFP application (Dkt. No. 6) is GRANTED, and it is further
Plaintiff is reminded that, although the application to proceed in IFP has been granted, he will still be required to pay fees that he may incur in this action, including copying and/or witness fees.
ORDERED that Plaintiff's motion for appointment of counsel (Dkt. No. 3) is DENIED WITHOUT PREJUDICE; and it is further
RECOMMENDED that Plaintiff's complaint (Dkt. No. 1) be DISMISSED WITH PREJUDICE AND WITHOUT LEAVE TO AMEND as against defendants Onondaga County District Attorney's Office, William Fitzpatrick, and Shea Maloy pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; and it is further
RECOMMENDED that Onondaga County District Attorney's Office, William Fitzpatrick, and Shea Maloy be TERMINATED as defendants; and it is further
RECOMMENDED that Plaintiff be granted leave to file an amended complaint consistent with the foregoing recommendations; and it is further
RECOMMENDED that if the District Court adopts this Order and ReportRecommendation, Plaintiff be permitted thirty (30) days from the filing date of the District Court's Order to file an amended complaint and that if Plaintiff fails to file an amended complaint within the time allowed and without requesting an extension of time to do so, this case be CLOSED without further order of the Court; and it is further
ORDERED that the Clerk serve a copy of this Order and Report-Recommendation on Plaintiff, along with a copy of the unpublished decisions cited herein in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
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. 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)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a).
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation 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).
IT IS SO ORDERED.