Opinion
5:24-CV-1237 (DNH/MJK)
11-12-2024
SAIO BARZEE, Plaintiff, v. AARON M. WISON, JR., et al., Defendants.
SAIO BARZEE, Plaintiff, pro se
SAIO BARZEE, Plaintiff, pro se
ORDER AND REPORT-RECOMMENDATION
MITCHELL J. KATZ, U.S. Magistrate Judge
TO THE HONORABLE DAVID N. HURD, U.S. DISTRICT JUDGE:
The Clerk has sent to the court for review a complaint, together with an application to proceed in forma pauperis (“IFP”), filed by pro se plaintiff, Saio Barzee. (Dkt. Nos. 1, 6).
I. IFP Application
Plaintiff declares in his IFP application that he is unable to pay the filing fee. (Dkt. No. 2). After reviewing his application, this court finds that plaintiff is financially eligible for IFP status.
However, in addition to determining whether plaintiff meets the financial criteria to proceed IFP, the court must also consider the sufficiency of the allegations set forth in the complaint in light of 28 U.S.C. § 1915, which provides that the court shall dismiss the case at any time if the court determines that the action is (i) 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)(i)-(iii).
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), abrogated on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and 28 U.S.C. § 1915. 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. Eldredge, 505 F.2d 802, 804 (8th Cir. 1974). Although the court has a duty to show liberality toward pro se litigants and must use extreme caution in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and has had an opportunity to respond, the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that a district court may dismiss a frivolous complaint sua sponte even when plaintiff has paid the filing fee).
To survive dismissal for failure to state a claim, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Bell Atl. Corp., 550 U.S. at 555).
In addition, Fed.R.Civ.P. 8(a)(2) requires that a pleading contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Although Rule 8 does not require detailed factual allegations, it does “demand[] more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Houston v. Collerman, No. 9:16-CV-1009 (BKS/ATB), 2016 WL 6267968, at *2 (N.D.N.Y. Oct. 26, 2016) (quoting Iqbal, 556 U.S. at 678). A pleading that contains allegations that “‘are so vague as to fail to give the defendants adequate notice of the claims against them' is subject to dismissal.” Id. (citing Sheehy v. Brown, 335 Fed.Appx. 102, 104 (2d Cir. 2009)).
II. Complaint
Plaintiff's complaint concerns events alleged to have occurred between September and November 2023, giving rise to his underlying arrest and criminal prosecution. Plaintiff, a parolee, was hired and began working at Wendy's in September of 2023. (Complaint (“Compl.”) at ¶ 1). Plaintiff alleges that, during the course of his employment at Wendy's in September and October 2023, he endured ongoing verbal and sexual harassment from his co-workers, including defendants Santina Rivera, Kari Wheeler, Michelle Murphy, Chris Gordon, Louis Rivera Jr. and Emily Roe. (See generally Compl. at ¶¶ 2-19). Plaintiff also describes offending conduct by non-Wendy's employee Aaron M. Wilson, Jr., Santina Rivera's boyfriend. (See Compl. at ¶ 16).
On or around October 29, 2023, plaintiff got into a verbal altercation with his coworker, defendant Kari Wheeler. (Compl. at ¶¶ 20-21). In response, defendant Santina Rivera, Ms. Wheeler's sister, “texted” Wendy's manager defendant Michelle Murphyand informed her that Ms. Wheeler and plaintiff were “threatening each other with violence and gun violence.” (Id. at ¶ 22). Plaintiff thereafter took a break outside the Wendy's store, at which time he noticed a suspicious dark colored vehicle that he felt to be threatening. (Id. at ¶¶ 23-24). Plaintiff alleges that he attempted to approach the vehicle, in which he “noticed a firearm and some weed smoking.” (Id. at ¶ 24). Ms. Murphy then approached plaintiff and convinced him to go inside so she could “just simply talk to him and that there didn't have to be any problem.” (Id. at ¶¶ 24-26).
Defendant Michelle Murphy is Kari Wheeler and Santina Rivera's mother. (Compl. at ¶ 8).
After returning to the inside of the store and speaking to Ms. Murphy, plaintiff “started to go back to work only to then . . . be harassed again.” (Compl. at ¶ 28). Specifically, plaintiff alleges that he was verbally harassed by a “Caucasian kid in his mid-twenties” at the cashier area of the store, and then later, after leaving his shift for the night, by other unidentified individuals outside of the store. (See id. at ¶¶ 28-32).
After that night, plaintiff informed his parole officer that “he was not going to go back to Wendy's because he did not feel welcomed.” (Compl. at ¶ 33). Plaintiff alleges that he made “a couple more stops to Wendy's after that[,] but never got into any physical altercation . . . nor did [he] approach the defendants.” (Id.). Plaintiff states that he went “simply to see if he could get the license plate of the people that had harassed him that night so that he could get a potential identification and or [sic] confirmation of the potential threat[.]” (Id. at ¶ 33).
Plaintiff then states that, on November 15, 2023, he went to Wendy's again “to inform the defendants that he was either going to commence with filing criminal charges against them and or [sic] file a lawsuit for the unjustifiable slander of his character.” (Compl. at ¶ 33). Plaintiff thereafter alleges that he was “wrongfully arrested” that night. (Id. at ¶ 34). Although plaintiff generally refers to the “transactions” that occurred that night leading to his arrest, he conveniently fails to provide any detail surrounding the circumstances. According to contemporaneously published news articles, Cicero Police responded to Wendy's that evening for a report of an ex-employee threatening to kill employees. The articles further report that police were advised that the ex-employee displayed a handgun and made multiple threats to kill people before leaving the scene.
The Court may take judicial notice “of news articles discussing the conduct raised in the complaint[.]” Stewart v. Loring Ests. LLC, No. 18-CV-2283, 2020 WL 3002363, at *9 (E.D.N.Y. Feb. 26, 2020), report recommendation adopted, 2020 WL 1231783 (E.D.N.Y. Mar. 13, 2020) (quoting In re Smith Barney Transfer Agent Litig., 765 F.Supp.2d 391, 397 (S.D.N.Y. 2011)). It should be emphasized that the court does not accept the articles as evidence of the truth of the matters therein asserted.
See https://cnycentral.com/news/local/paroled-ex-employee-arrested-after-threatening-wendys-staff-in-cicero (last visited Nov. 4, 2024); https://cnycentral.com/news/local/paroled-ex-employee-arrested-after-threatening-wendys-staff-in-cicero (last visited Nov. 4, 2024); https://www.localsyr.com/news/local-news/ex-employee-shows-up-at-cicero-wendys-threatens-to-kill-current-employees/ (last visited Nov. 4, 2024).
The remainder of plaintiff's complaint alleges the culpable behavior of the various defendants to the extent they are alleged to have violated his constitutional rights with respect to the October 29th and November 15th incidents. Specifically, plaintiff asserts that defendants Aaron M. Wilson, Jr., Kari Wheeler, Chris Gordon, and Santina Rivera lied and/or perjured themselves in the course of providing statements to, and otherwise assisting the responding law enforcement officers, during the investigation leading to plaintiff's arrest on November 15th. (See Compl. at ¶¶ 34-40).
Plaintiff further alleges the violation of his constitutional rights by the various law enforcement officers involved in the November 15th arrest and subsequent prosecution, including defendant Police Officers Ernes Merdanovic, Kyle Harrington, and John Baldini, as well as Sergeants (“Sgt.”) Snell and Thomas Leo. For the sake of brevity, the court addresses the differing allegations against these officers in more detail in the analysis section.
Plaintiff next alleges that his defense attorney, defendant Susan C. Carey, “wrongfully deprived plaintiff of his . . . right to testify at the grand jury[,]” “wrongfully failed to adequately communicate with the plaintiff[,]” and “failed to inform the plaintiff about relevant matters pertaining to his criminal case and of every stage of his criminal proceeding.” (Compl. at ¶¶ 47-48).
Plaintiff states that defendant Michael Wright, a “parole revocation specialist,” “wrongfully [brought] up new parole violation charges against the plaintiff on the same day as the plaintiff's schedule[d] final parole revocation hearing . . . depriv[ing] the plaintiff of the opportunity to adequate[ly] prepare a defense against the [other] allegations brought up against him[.]” (Compl. at ¶ 50). Plaintiff further alleges that Michael Wright “wrongfully allow[ed] . . . defendant Aaron M. Wilson Junior to view photographic evidence of the firearm recovered by [defendant P.O. Harrington . . . ]”; was “more wrongfully worried about convicting the plaintiff th[a]n he was to upholding justice . . .”; “wrongfully attempted to influence plaintiff's attorney . . . to coerce the plaintiff into accepting one of the maliciously framed offer[s] given by the board of parole . . .”; and “knew that the administrative law judge was being extremely bias[ed] and failed to uphold justice by bringing cure to the prejudicial injuries being suffered by the plaintiff.” (Id. at ¶¶ 51-54).
Finally, plaintiff alleges that defendant Tamara Danner, a firearm examiner, “violated his right to . . . due process by way of forgery when the defendant wrongfully certified . . . [and] presented falsified documentations which made it appear as if the firearm was indeed operable . . . which . . . was perjury[.]” (Compl. at ¶ 56).
III. Private Party Defendants
A. 42 U.S.C. § 1983 Claims
Plaintiff's § 1983 claims against defendants Wilson, Rivera, Wheeler, Murphy, Gordon, Rivera Jr., and Roe should be dismissed. To state a claim under Section 1983, a litigant must allege both that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the right was violated by a person acting under the color of state law, or a “state actor.” See West v. Atkins, 487 U.S. 42, 48-49 (1988). To state a claim for a Section 1983 conspiracy involving a private party, “a plaintiff must allege ‘(1) an agreement between a state actor and a private party; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages.' ”Knopf v. Esposito, 803 Fed.Appx. 448, 452-53 (2d Cir. 2020) (quoting Ciambriello, 292 F.3d 307, 324-25 (2d Cir. 2002). A private actor also acts under the color of state law “when the private actor is a willful participant in joint activity with the State or its agents.” Betts v. SHearman, 751 F.3d 78, 84 (2d Cir. 2014) (internal quotation marks and citation omitted).
The Court recognizes that a defamation claim can be brought as a civil rights violation pursuant to 42 U.S.C. § 1983 “when a plaintiff can demonstrate ‘a stigmatizing statement plus a deprivation of a tangible interest.' ” Gerrard v. Burns, No. 7:14-CV-1235 (DNH), 2015 WL 1534416, at *3 (N.D.N.Y. April 6, 2015). “The action is one for violation of a liberty or property interest protected by due process.” Sadallah v. City of Utica, 383 F.3d 34, 38 (2d Cir. 2004). Thus, to the extent plaintiff asserts a cause of action for defamation under the First Amendment (See Compl. at p. 16-17), which is typically raised as a defense in such a claim, it does not provide a basis for any § 1983 claim as pled.
A complaint that contains “only conclusory, vague, or general allegations that the defendants have engaged in a conspiracy to deprive the plaintiff of his constitutional rights [is] properly dismissed; diffuse and expansive allegations are insufficient, unless amplified by specific instances of misconduct.” Ciambriello, 292 F.3d at 325 (internal quotation marks omitted); see also Jackson v. Nassau Cnty., 552 F.Supp.3d 350, 38182 (E.D.N.Y. 2021) (“[T]he complaint must allege facts that plausibly suggest a meeting of the minds, such that defendants entered into an agreement, express or tacit, to achieve the unlawful end.”). And while “conspiracies are by their very nature secretive operations, and may have to be proven by circumstantial, rather than direct, evidence,” Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999) (internal quotation marks and citation omitted), the plaintiff is still required to allege facts beyond “conclusory, vague, or general allegations” to state a claim “that the defendants have engaged in a conspiracy to deprive the plaintiff of his constitutional rights,” Ciambriello, 292 F.3d at 325.
Here, plaintiff fails to allege any facts demonstrating that the private defendants acted in concert with or conspired with the law enforcement officers affecting his arrest. Liberally construed, plaintiff alleges that these private defendants were responsible for harassing him at his place of work, and reporting false information to the police about the events that occurred on November 15th. A private party's calling or summoning police officers does not constitute joint action with the officers that is actionable under § 1983. See Rodriguez v. Winski, 973 F.Supp.2d 411, 422 (S.D.N.Y. 2013) (finding that a private party “summoning police or requesting that police take action . . . simply does not suffice to constitute joint action or to convert the private party into a state actor”); Ginsberg v. Healey Car & Truck Leasing, Inc., 189 F.3d 268, 272 (2d Cir. 1999) (private party's “provision of background information to a police officer does not by itself make [the private party] a joint participant in state action under Section 1983”). This is the case even if the private defendants' reports to the law enforcement officers were, in fact, false. See Rodriguez, 973 F.Supp. at 422 (“[E]ven assuming that [defendant] had deliberately provided false information to police, such provision alone is not sufficient” to make him a state actor.”); Vazquez v. Combs, No. 04-Civ-4189, 2004 WL 2404224, at *4 (S.D.N.Y. Oct. 22, 2004) (“[M]erely filing a complaint with the police, reporting a crime, requesting criminal investigation of a person, or seeking a restraining order, even if the complaint or report is deliberately false, does not give rise to a claim against the complainant for a civil rights violation.”).
To the extent that plaintiff alleges defendant Wilson Jr. provided false testimony at plaintiff's final parole revocation hearing and during grand jury proceedings, this claim fails on multiple bases. First, an allegation that a private individual gave false testimony in a judicial proceeding, without more, does not plausibly allege that the individual was acting under color of state law. See Briscoe, 460 U.S. at 329-30 (“It is beyond question that, when a private party gives testimony in open court in a criminal trial, that act is not performed ‘under color of law.' ”); Gordon v. City of New York, No. 10-CV-5148, 2012 WL 1068023, at *12 (E.D.N.Y. Mar. 29, 2012) (dismissing Section 1983 claim based on private individual's allegedly false grand jury testimony); see also Flores v. Levy, No. 07-CV-3753, 2008 WL 4394681, at *7 (E.D.N.Y. Sept. 23, 2008) (“[T]he fact that [the private actor] . . . perjured herself as a witness at . . . trial does not transform her into a state actor.”). Moreover, a witness in a judicial proceeding is entitled to absolute immunity against claims for damages arising out of his or her testimony. See Briscoe, 460 U.S. at 334 (“At least with respect to private witnesses, it is clear that § 1983 did not abrogate the absolute immunity existing at common law.”); see also San Filippo v. U.S. Trust Co. of N.Y., Inc., 737 F.2d 246, 254 (2d Cir. 1984) (extending Briscoe's holding to grand jury testimony); accord Gordon, 2012 WL 1068023, at *12.
Accordingly, plaintiff's § 1983 claims against these private defendants should be dismissed for failure to state a claim and/or immunity from suit.
This court is recommending that certain of plaintiff's federal claims survive sua sponte review. (See, infra, p. 30). District courts have supplemental jurisdiction over all state law claims that are so related to federal claims over which they exercise original jurisdiction that they form part of the same case or controversy under Article III of the Constitution. 28 U.S.C. § 1367(a) (2000). Accordingly, the court will analyze those state law claims raised by plaintiff in his complaint, to the extent that the district court accepts my recommendation and recognizes supplemental jurisdiction.
“Defamation, consisting of the twin torts of libel and slander, is the invasion of the interest in a reputation and good name.” Hogan v. Herald Co., 84 A.D.2d 470, 474 (4th Dep't 1982), aff'd 58 N.Y.2d 630 (N.Y. 1982). “Generally, spoken defamatory words are slander; written defamatory words are libel.” Albert v. Loksen, 239 F.3d 256, 264 (2d Cir. 2001).
“Under New York law a [libel] defamation plaintiff must establish five elements: (1) a written defamatory statement of and concerning the plaintiff, (2) publication to a third party, (3) fault, (4) falsity of the defamatory statement, and (5) special damages or per se actionability.” Palin v. N.Y. Times Co., 940 F.3d 804, 809 (2d Cir. 2019). In addition, “[u]nder New York law, to state a cause of action for slander, the plaintiff must allege facts plausibly suggesting (1) a defamatory statement of fact, (2) that is false, (3) published to a third party, (4) of and concerning the plaintiff, (5) made with the applicable level of fault on the part of the speaker, (6) that causes either special harm or constitutes slander per se, and (7) that is not protected by privilege.” Ryle v. Rehrig Pac. Co., 19-CV-1478, 2020 WL 6196144, at *8 (N.D.N.Y. Oct. 22, 2020) (citing Albert, 239 F.3d at 265-66). Slander per se includes “statements (i) charging plaintiff with a serious crime; [and] (ii) that tend to injure another in his or her trade, business or profession.” Whelan v. Cuomo, 220 A.D.3d 979, 981 (2d Dep't 2023) (quoting Liberman v. Gelstein, 80 N.Y.2d 429, 435 (1992)).
Plaintiff's claim for libel against defendant Aaron M. Wilson Jr. for the testimony he gave at plaintiff's criminal proceedings (see Compl. at ¶¶ 61-63) should be dismissed for failure to state a claim. Moreover, under New York law, “[i]t is well-settled that statements made in the course of litigation are entitled to absolute privilege.” TRB Acquisitions LLC v. Yedid, 215 A.D.3d 40, 43 (1st Dep't 2023) (quoting Front, Inc. v. Khalil, 24 N.Y.3d 713, 718 (2015)).
Plaintiff further asserts a claim for slander per se against defendants Santina Rivera, Aaron M. Wilson Jr., and Luis Rivera Jr. for referring to plaintiff as a sex offender and a pedophile. (See Compl. at ¶¶ 14, 16, 57-58). These allegations further fail to state a claim. To the extent plaintiff alleges that these statements were made in conversations between him and the defendants (see, e.g., Compl. at ¶ 14), such allegations do not amount to slander because they were not published to a third party. See McCollum v. Baldwin, 688 F.Supp.3d 117, 128 (S.D.N.Y. 2023) (“Plaintiffs' defamation claims that are based on [the defendant's] private communications with [the plaintiff] . . . are not actionable.”). Moreover, it was not slander per se for defendant Wilson to “report” to defendant P.O. Merdanovic that plaintiff “was under the assumption that people were slandering his character[.]” (See Compl. at ¶ 58). Otherwise, as alleged plaintiff's allegations do not plausibly allege claims for defamation under New York Law.
Accordingly, plaintiff's state law defamation claims should be dismissed for failure to state a claim.
IV. Law Enforcement Defendants
Plaintiff explicitly declares in his complaint that he is not seeking to base his §1983 claims against the defendant law enforcement officers on a cause of action for false arrest, but is “asserting that the cruel and unusual punishment being wrongfully inflicted upon the plaintiff . . . are a violation of plaintiff's due process rights[.]” (Compl. at ¶¶ 75-79, 93). He also asserts claims of perjury, falsifying reports and obstructing justice against these defendants. (Id. at ¶¶ 64-68).
At the outset, the court notes that plaintiff's claims arising under the Eighth Amendment right to be free from cruel and unusual punishment should be dismissed. As a parolee at the time of his arrest, any claims plaintiff raised to this effect would be “appropriately analyzed under the Fourteenth Amendment's Due Process Clause, not the Eighth Amendment.” Porath v. City of New York, No. 22-CIV-1302, 2023 WL 9197680, at *5 n. 3 (S.D.N.Y. Dec. 21, 2023), report and recommendation adopted, 2024 WL 127025 (S.D.N.Y. Jan. 11, 2024) (quoting Stovall v. Wilkins, No. 15 Civ. 2163, 2016 WL 5478509, at *3 (S.D.N.Y. Sept. 29, 2016)).
Moreover, plaintiff's claims against the defendant law enforcement officers as they relate to the revocation of his parole may not proceed. “An individual convicted of a crime may not bring a section 1983 suit for damages that ‘necessarily impl[ies] the invalidity of his conviction or sentence . . . unless [he] can demonstrate that the conviction or sentence has already been invalidated.' ” Opperisano v. P.O. Jones, 286 F.Supp.3d 450, 454 (E.D.N.Y. 2018) (quoting Heck v. Humphrey, 512 U.S. 477, 487 (1994)) (additional citations omitted). “Heck's limitation of section 1983 claims has come to be known as the ‘favorable-termination' rule and applies to revocations of parole.” Opperisano, 286 F.Supp.3d at 454 (citing, inter alia, Lee v. Donnaruma, 63 Fed. App'x 39, 41 (2d Cir. 2003) (“Courts have applied Heck to prevent a state prisoner from bringing a Section 1983 action challenging a parole revocation unless that revocation decision is reversed or the underlying conviction is set aside.”)). “A parolee challenging a parole revocation must therefore demonstrate that his parole revocation 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.' ” Id. at 455 (quoting Heck, 512 U.S. at 486-87) (additional citations omitted).
In this case, plaintiff has alleged that as a result of the defendants' conduct, he was sentenced to the “maximum amount of imprisonment (two years)” for violating his parole. (Compl. at ¶ 42). The complaint does not allege that the determination at his parole revocation hearing has since been invalidated. Accordingly, plaintiff's claims related to the violation of probation proceedings are barred by Heck and should be dismissed. See, e.g., Robinson v. Wright, No. 5:21-CV-1098, 2023 WL 6122882, at *2 (N.D.N.Y. Sept. 19, 2023) (dismissing plaintiff's Fourteenth Amendment due process claims concerning perjured testimony and material omissions during parole revocation hearing as barred by Heck); Harris v. New York Div. of Parole, No. 9:18-CV-1435(LEK/TWD), 2019 WL 1958017, at *4 (N.D.N.Y. May 1, 2019) (“Since success on Plaintiff's malicious prosecution and due process claims require him to prove the invalidity of his parole revocation, Heck bars those claims unless state authorities reversed the revocation.”) (citation omitted).
Specifically, this includes plaintiff's claims that defendants P.O. Merdanovic and P.O. Harrington provided false testimony at his parole revocation hearing. (Compl. at ¶ 41).
To the extent plaintiff's allegations may be construed to raise malicious prosecution claims against the law enforcement defendants, such claims should be dismissed. Claims for malicious prosecution require the plaintiff to show a favorable termination of the underlying criminal case against him. See Barnes v. City of New York, 68 F.4th 123, 128 (2d Cir. 2023) (“[A] Fourth Amendment claim under § 1983 for malicious prosecution requires the plaintiff to show a favorable termination of the underlying criminal case against him.”). Plaintiff affirmatively alleges in his complaint that he is a “pretrial detainee of [his] new pending case.” (Compl. at p. 1). As plaintiff's criminal proceeding is allegedly ongoing, he necessarily cannot allege that it terminated in his favor. See Sabino v. Port Auth. Police Dep't, No. 21-CV-5731, 2021 WL 3914092, at *2 (S.D.N.Y. Sept. 1, 2021) (citing Bayan v. Sikorski, No. 17-CV-4942, 2021 WL 1163653, at *5 (S.D.N.Y. Mar. 26, 2021) (“Because ‘favorable termination is an element of a malicious prosecution claim, a plaintiff cannot state a claim if the relevant criminal proceeding is pending.' ”)).
A Section 1983 “fair trial” claim is a claim for civil damages for violations of a criminal defendant's due process rights. Ramchair v. Conway, 601 F.3d 66, 73 (2d Cir. 2010) (quoting Cone v. Bell, 556 U.S. 449, 451 (2009)) (“The right to a fair trial [is] guaranteed to state criminal defendants by the . . . Due Process Clauses [of the Fifth and Fourteenth Amendments, defined] . . . largely through [ ]several provisions of the Sixth Amendment .”) (citations and quotation marks omitted). A § 1983 claim for a violation of the right to a fair trial lies, inter alia, where a police officer “creates false information likely to influence a jury's decision and forwards that information to prosecutors.” Ricciuti, 124 F.3d at 130. Such a fair trial claim can be sustained “even if the officer had probable cause to arrest in the first place.” Abreu v. City of New York, 04 CV 1721, 2006 WL 401651, at *6 (E.D.N.Y. Feb. 22, 2006) (citing Jocks v. Tavernier, 316 F.3d 128, 138 (2d Cir.2007)). A fair trial claim can also arise where police or prosecutors “withhold evidence that is ‘material' to a criminal defendant's guilt or punishment.” McCaffrey, 2013 WL 494025, at *10 (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)). “A plaintiff need not have proceeded to a full trial on the merits in order to have an actionable section 1983 claim based on the denial of a fair trial.” Marom v. City of New York, No. 15-CV-2017, 2016 WL 916424, at *9 (S.D.N.Y. Mar. 7, 2016) (citing Ricciuti, 124 F.3d at 127). To the extent plaintiff has raised allegations sounding in the violation of his right to a fair trial, the court will address each defendant in turn.
A. P.O. Ernes Merdanovic
Plaintiff alleges that defendant P.O. Merdanovic “knew or should have known” that defendant Wilson Jr. was lying about the events that occurred on November 15th, but nevertheless “wrongfully filed the felony complaint which was later used as the accusatory instrument brought up against plaintiff.” (Compl. at ¶ 35). However, plaintiff fails to plausibly allege what false information defendant Wilson Jr. provided to defendant P.O. Merdanovic that was ultimately put in his report, much less facts reasonably asserting how defendant P.O. Merdanovic should have known that said information was false. A claim asserting deprivation of a right to a fair trial cannot survive based only on broad and conclusory allegations that the officers created false narratives. Marom, 2016 WL 916424, at *9 (citing Abdul-Rahman v. City of New York, 10-CV-2778, 2012 WL 1077762, at *12 (E.D.N.Y. Mar. 30, 2012)). To this end, cursory pleadings are not sufficient to plausibly allege a claim for denial of the to a fair trial. See, e.g., Hutchins v. Solomon, No. 16-CV-10029, 2018 WL 4757970, at *16 (S.D.N.Y. Sept. 29, 2018) (“Conclusory statements that officers fabricated evidence do not suffice to state a claim for the denial of a fair trial.”); Longo v. Ortiz, No. 15-CV-7716, 2016 WL 5376212, at *6 (S.D.N.Y. Sept. 26, 2016) (holding that the plaintiff failed to state denial of fair trial claim where he alleged “he was denied the right to a fair trial . . . when the defendants fabricated evidence, gave false testimony, and made false extrajudicial statements . . . to be used against [the plaintiff] at trial ....”); Marom, 2016 WL 916424, at *9 (explaining that plaintiff did not plausibly allege a deprivation of fair trial claim because he failed to assert how, in what way, or to what effect, the defendants specifically falsified information).
Plaintiff further alleges that body camera video footage recordings show defendant P.O. Merdanovic “maliciously whispering something to defendant Chris Gordon in an attempt to let the defendant know that his body camera was on and recording their conversation while [P.O. Merdanovic] continued to commit unprofessional police misconducts and acts .... Defendant [P.O. Merdanovic] is also captured telling [P.O.] Boyland to write a report claiming to have found the gun, which the officer refused to do.” (Id. at ¶ 37). Neither of these allegations plausibly amount to violations of constitutional proportion. In particular, to the extent P.O. Merdanovic directed another officer to write a report (of a presumably false nature), plaintiff asserts that P.O. Boyland ultimately did not write said report. Thus, he cannot satisfy the elements of a claim for the deprivation of the right to a fair trial.
P.O. Boyland is not a named defendant in this action.
Plaintiff further alleges that defendant P.O. Merdanovic “lied in his report by asserting that [P.O.] Boyland saw the plaintiff throwing a bag even though video footage from the body worn cameras actually reveal that [P.O.] Boyland . . . never saw plaintiff in possession of the bag but rather . . . found a bag laying on the ground which the officer assumes that the plaintiff abandoned during the pursuit.” (Compl. at ¶ 38). Mindful of the requirement to liberally construe pro se pleadings, see, e.g., Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008), the court recommends that plaintiff's fair trial claim against defendant P.O. Merdanovic concerning the false report indicating that plaintiff was observed throwing a bag survive sua sponte review and require a response. In so ruling, the Court expresses no opinion as to whether these claims can withstand a properly filed dispositive motion.
Plaintiff further asserts that defendant P.O. Merdanovic “wrongfully tamper[ed] with the firearm recovered on November 15th[,]” to the extent he apparently attempted to “unjam,” or otherwise render safe, the firearm upon taking it into custody. (Id. at ¶¶ 40, 44). Nothing in these allegations against this defendant gives rise to a claim of constitutional proportion, or suggests misconduct on the part of P.O. Merdanovic.
B. P.O. Kyle Harrington
Plaintiff alleges that defendant P.O. Harrington “knew or should have known” that defendant Santina Rivera lied in her report concerning the events surrounding plaintiff's arrest. (Compl. at ¶ 39). Plaintiff further alleges that defendant P.O. Harrington “wrongfully tamper[ed] with the firearm recovered on November 15th, to the extent he apparently removed the firearm from defendant P.O. Baldini's vehicle, took photographs of the firearm, and then attempted to “unjam” the firearm. (Id. at ¶¶ 40, 44). For the reasons previously set forth, plaintiff does not plausibly state a fair trial claim based on his conclusory allegation that defendant P.O. Harrington “knew or should have known” that defendant Santina Rivera was lying. Nor do plaintiff's contentions surrounding P.O. Harrington's “tampering” with the firearm plausibly state a claim.
Plaintiff further alleges that defendant P.O. Harrington provided “testimony that was wrongfully used to indict the defendant” at his grand jury proceedings, as well as “perjury testimony” at a suppression hearing. (Compl. at ¶ 42). Specifically, plaintiff alleges that defendant P.O. Harrington falsely testified that “he could actually see what the plaintiff was wearing when the plaintiff was walking to his home” on the night of November 15th based on information that was provided to him and because of the photographs captured from the Wendy's surveillance cameras. (Id.). Plaintiff asserts that this was perjury because “neither the photograph nor the report that was relayed to [defendant P.O. Harrington] mentioned the facts which the defendant asserted[.]” (Id.). Mindful of the requirement to liberally construe pro se pleadings, see, e.g., Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008), the court recommends that plaintiff's fair trial claim against defendant P.O. Harrington concerning his perjured testimony at the suppression hearing survive sua sponte review and require a response. In so ruling, the Court expresses no opinion as to whether these claims can withstand a properly filed dispositive motion.
C. P.O. John Baldini
Plaintiff alleges that defendant P.O. Baldini “wrongfully allowed [defendant P.O. Harrington] to remove the firearm from his vehicle and then allowed for [defendant P.O. Harrington] to first take photographs of the firearm and then . . . attempt[ ] to ‘unjam' the firearm[.]” (Compl. at ¶ 44). Plaintiff alleges that defendant P.O. Harrington then “pass[ed] the firearm to [defendant P.O. Merdanovic who] was also unsuccessful in unjamming the firearm.” (Id.). Plaintiff alleges that defendant P.O. Baldini was then “finally able to regain re-control of the firearm and thus the police report field by [defendant P.O. Baldini] must be deemed as forgery.” (Id.). For the reasons previously set forth, Plaintiff's allegations surrounding the handling of the firearm do not plausibly state a claim under § 1983.
D. Sgt. Snell
Plaintiff alleges that defendant Sgt. Snell “wrongfully [went] into the storage locker area designated by the Cicero Police Department inorder [sic] to allegedly ‘unjam' the firearm before then reporting that [defendant P.O. Harrington] . . . properly stored the firearm into the evidence store unit section of the police locker room.” (Compl. at ¶ 45). For the reasons previously set forth, Plaintiff's allegations surrounding the handling of the firearm do not plausibly state a claim under § 1983.
E. Sgt. Thomas Leo
Plaintiff alleges that defendant Sgt. Leo “wrongfully allowed for the Cicero Police Officers (and the herein named defendants) to commit unprofessional actions in violation of the rules and regulations setforth [sic] by the Superintendent of the New York State Police and subsequently allowed for the officer to forge reports which he endorsed.” (Compl. at ¶ 46). Plaintiff alleges that these reports were the “essential accusatory instrument used in wrongfully prosecuting plaintiff[.]” (Id.).
“It is well settled in this Circuit that ‘personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.' ” Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)). In order to prevail on a section 1983 cause of action against an individual, a plaintiff must show “a tangible connection between the acts of a defendant and the injuries suffered.” Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). “[D]irect participation as a basis of liability in this context requires intentional participation in the conduct constituting a violation of the victim's rights by one who knew of the facts rendering it illegal.” Provost v. City of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001) (internal quotation marks omitted).
Courts in this circuit routinely hold that “the doctrine of respondeat superior cannot be applied to section 1983 actions to satisfy the prerequisite of personal involvement. Therefore, a [supervisory] official may not be found liable for a constitutional violation merely because of the acts of those under his control.” Kinch v. Artuz, 97-CV-2419, 1997 WL 576038, at *2 (S.D.N.Y. Sept. 15, 1997) (citing Colon v. Coughlin, 58 F.3d 865, 874 (2d Cir. 1995); Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)). Thus, supervisory officials may not be held liable for their subordinates' constitutional violations merely because they are in a position of authority. See Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996); see also Colon, 58 F.3d at 874 (holding that the fact that the defendant occupied a high-ranking position in the New York prison hierarchy, without more, was insufficient to establish personal involvement).
In Tangreti v. Bachmann, 983 F.3d 609 (2d Cir. 2020), the Second Circuit concluded that “there is no special rule for supervisory liability,” and held that a “plaintiff must plead and prove ‘that each Government-official defendant, through the official's own individual actions, had violated the Constitution.' ” Tangreti, 983 F.3d at 618. The Second Circuit explained that, “ ‘the factors necessary to establish a [§ 1983] violation will vary with the constitutional provision at issue' because the elements of different constitutional violations vary. The violation must be established against the supervisory official directly.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)).
Here, to the extent plaintiff seeks to impose liability on Sgt. Leo by virtue of his supervisory role alone, such a claim cannot withstand review. To the extent plaintiff asserts that Sgt. Leo was personally involved in violating his constitutional rights, the allegations as plead do not meet the minimal pleading requirements of Federal Rule of Civil Procedure 8. The purpose of Rule 8 is to give adequate notice regarding the nature of the claim being asserted so that the defendant can prepare an adequate defense. Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995). The allegations here do not provide that notice, to the extent that plaintiff has not alleged what forged and/or false reports, authored by whom, defendant Sgt. Leo is alleged to have “endorsed.” Nor is it clear in what way defendant Sgt. Leo “endorsed” the forged reports, i.e. if this consisted of conduct, acts, or omissions beyond his general supervisory role. Accordingly, plaintiff's claims against Sgt. Leo should be dismissed for failure to state a claim.
V. Defense Counsel Susan Carey
Plaintiff may not proceed with a § 1983 action against defendant attorney Susan Carey. The law is well established that attorneys, whether privately-retained or court-appointed, do not act under color of state law when they perform traditional functions of counsel. Polk County v. Dodson, 454 U.S. 312, 325 (1981) (“[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.”); D'Amato v. Rattoballi, 83 Fed.Appx. 359, 360 (2d Cir. 2003) (“The district court properly concluded that [the plaintiff's] section 1983 claims against [the defendant] should be dismissed on the ground that [the defendant], a privately retained attorney, was not acting under the color of state law.” (citing Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998))); McCloud v. Jackson, 4 Fed.Appx. 7, 9-10 (2d Cir. 2001) (“To the extent that [the defense attorney] may have served as privately-retained counsel, rather than as a court-appointed attorney, he still could not be held liable under § 1983 because there was no showing that he worked with state officials to deprive [plaintiff] of federal rights.”); Harrison v. New York, No. 14-CV-1296, 2015 WL 1413359, at *24 (E.D.N.Y. Mar. 20, 2015) (“[I]t is well-settled that private attorneys and law firms . . . do not act under color of state law.” (citing cases)); Shorter v. Rice, No. 12-CV-0111, 2012 WL 1340088, at *4 (E.D.N.Y. Apr. 10, 2012) (holding that neither “public defenders . . . nor court-appointed counsel, nor private attorneys, act under the color of state law merely by virtue of their position”). Because plaintiff alleges that defendant Carey was his defense attorney, he fails to state a claim under § 1983.
Liberally construed, plaintiff also appears to be attempting to commence a state law claim for legal malpractice against defendant Carey. As previously set forth, the district court may exercise supplemental jurisdiction over plaintiff's legal malpractice claim, to the extent it accepts my recommendation that some of plaintiff's federal claims survive initial review. “The elements of a claim of legal malpractice under New York law are: (1) an attorney-client relationship at the time of the alleged malpractice; (2) attorney negligence; (3) proximate causation and (4) actual damage to the client.” Bryant v. Silverman, 284 F.Supp.3d 458, 470 (S.D.N.Y. 2018) (citing Kirk v. Heppt, 532 F.Supp.2d 586, 591 (S.D.N.Y. 2008); see also O'Callaghan v. Brunelle, 84 A.D.3d 581, 582 (1st Dep't 2011); Parola, Gross & Marino, P.C. v. Susskind, 43 A.D.3d 1020, 1022 (2d Dep't 2007). An attorney is negligent if he or she fails to exercise that degree of care, skill and diligence commonly possessed and exercised by ordinary members of the legal community. Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442 (2007). Mindful of the requirement to liberally construe pro se pleadings, see, e.g., Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008), the court recommends that plaintiff's New York State legal malpractice claim against defendant Carey survive sua sponte review and require a response. In so ruling, the Court expresses no opinion as to whether these claims can withstand a properly filed dispositive motion.
VI. D.A. William Fitzpatrick
Plaintiff has alleged various § 1983 claims against defendant William Fitzpatrick, the District Attorney of Onondaga County. The only meaningful reference to defendant D.A. Fitzpatrick in the complaint is plaintiff's allegation that “employees working under the jurisdiction of Defendant William Fitzpatrick wrongfully allowed for” various errors to be made during plaintiff's criminal proceedings (see Compl. at ¶ 47). To the extent plaintiff asserts liability against this defendant in his supervisory capacity, and in the absence of factual allegations sufficient to plausibly allege that defendant D.A. Fitzpatrick was personally involved in any conduct that violated plaintiff's constitutional rights, the complaint fails to state a claim against this defendant. See O'Dell v. Bill, No. 13-CV-1275, 2015 WL 710544, at *4 (N.D.N.Y. Feb. 18, 2015) (“[S]upervisory officials may not be held liable merely because they held positions of authority.”).
Moreover, even if plaintiff had plausibly alleged that defendant D.A. Fitzpatrick was personally involved in plaintiff's criminal prosecution, it is well-settled that “[p]rosecutors sued under § 1983 enjoy absolute immunity ‘from claims for damages arising out of prosecutorial duties that are intimately associated with the judicial phase of the criminal process.' ” Joyner v. Cty. of Cayuga, No. 5:20-CV-1904088 (MAD/TWD), 2020 WL 1904088, at *9 (N.D.N.Y. Apr. 17, 2020) (quoting, inter alia, Doe v. Phillips, 81 F.3d 1204, 1209 (2d Cir. 1996) (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976))). Prosecutorial immunity from § 1983 liability is broadly defined, covering “virtually all acts, regardless of motivation, associated with [the prosecutor's] function as an advocate.” Hill v. City of New York, 45 F.3d 653, 661 (2d Cir. 1995) (quoting Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994)). 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 Civ. 316, 2012 WL 2569085, at *5 (S.D.N.Y. July 3, 2012) (quoting Johnson v. City of New York, No. 00 CIV 3626, 2000 WL 1335865, at *2 (S.D.N.Y. Sept. 15, 2000)). Immunity even extends to “the falsification of evidence and the coercion of witnesses,” Taylor v. Kavanagh, 640 F.2d 450, 452 (2d Cir. 1981) (citing Lee v. Willins, 617 F.2d 320, 32122 (2d Cir. 1980)), “the knowing use of perjured testimony,” “the deliberate withholding of exculpatory information,” Imbler, 424 U.S. at 431 n.34, the “making [of] false or defamatory statements in judicial proceedings,” Burns v. Reed, 500 U.S. 478, 490 (1991), and “conspiring to present false evidence at a criminal trial,” Dory, 25 F.3d at 83.
Accordingly, the district court should dismiss plaintiff's claims against defendant D.A. Fitzpatrick.
VII. Tamara Danner
Plaintiff's allegations do not plausibly state a cause of action against defendant Danner, to the extent she certified that the firearm was “operable.” (Compl. at ¶ 56). Plaintiff's own opinion that the firearm was not “operable” because it was “jammed” does not suffice to establish that defendant Danner falsified evidence pertaining to his criminal prosecution, or that her opinion to the contrary could not be reasonably supported. See, e.g., People v. Yarborough, 158 A.D.3d 430, 431 (1st Dep't 2018) (“The evidence also supports the conclusion that the pistol was operable, notwithstanding that it had jammed”). Plaintiff otherwise provides no allegations, other than his own suppositions, that defendant Danner's representation was false and/or “forgery.”
VIII. Michael Wright
Plaintiff fails to state a cause of action against defendant parole revocation specialist Michael Wright. As previously set forth, plaintiff's Fourteenth Amendment due process claims concerning the evidence and conduct at his parole revocation hearing are barred by Heck. Thus, because plaintiff's contentions that defendant Wright “wrongfully asked question to his witness in a manner that a competent person . . . would deem as of leading witness inorder [sic] to get a guilty favorable outcome, and . . . attempted to prevent the plaintiff from raising adequate points and bringing forth sufficient evidence” imply the invalidity of his parole revocation determination, his claims against defendant Wright are barred and must be dismissed. (Compl. at ¶ 80) See Robinson v. Wright, No. 5:21-CV-1098, 2023 WL 6122882, at *2 (N.D.N.Y. Sept. 19, 2023).
IX. Injunctive and Declaratory Relief
In addition to monetary relief, plaintiff seeks declaratory and injunctive relief pertaining to issues surrounding the continuing criminal prosecution against him in state court. (Compl. at ¶¶ 86-88, 91, 92). Plaintiff also asks this court to “render an injunction” directing defendant D.A. Fitzpatrick to commence a criminal investigation of the individuals “wrongfully slandering his character.” (Id. at ¶ 89). Last, plaintiff seeks an injunction directing a criminal investigation of the conditions of confinement “of the plaintiff in the special housing unit.” (Id. at ¶ 90).
In Younger v. Harris, 401 U.S. 37, 45 (1971), the Supreme Court endorsed “a strong federal policy against federal-court interference with pending state judicial proceedings absent extraordinary circumstances.” Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 431 (1982). “[B]efore invoking Younger[,] a federal court may [also] appropriately consider . . . [w]hether there is (1) an ongoing state judicial proceeding that (2) implicates important state interests and (3) provides an adequate opportunity to raise federal challenges.” Cavanaugh v. Geballe, 28 F.4th 428, 432 (2d Cir. 2022) (alterations, citation, and internal quotation marks omitted). “The Younger doctrine is as applicable to suits for declaratory relief as it is to those for injunctive relief; the Supreme Court held in a companion case to Younger that Younger's policy would ‘be frustrated as much by a declaratory judgment as it would be by an injunction.' ” Kirschner v. Klemons, 225 F.3d 227, 235 (2d Cir. 2000) (quoting Samuels v. Mackell, 401 U.S. 66, 73 (1971)). Here, insofar as plaintiff seeks the aforementioned declaratory and/or injunctive relief, the court abstains from intervening in the ongoing state criminal prosecution pursuant to Younger. See, e.g., Player v. Sini, No. 21-CV-5613, 2021 WL 5084172, at *2 (E.D.N.Y. Nov. 1, 2021) (abstaining from adjudicating constitutional claims seeking injunctive relief regarding plaintiff's pending criminal case); London v. Nassau County Dist. Attorney's Off., No. 20-CV-3988, 2020 WL 7699644, at *9 (E.D.N.Y. Dec. 28, 2020) (same).
Furthermore, this court does not have the authority to commence its own investigation, commence a criminal prosecution, compel a law enforcement agency to investigate suspected criminal activity, nor compel a prosecutor to prosecute. Prosecutors possess discretionary authority to bring criminal actions, and they are “immune for control or interference by citizen or court.” Conn. Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 87 (2d Cir. 1972). Further, plaintiff does not have standing to compel any law enforcement agency to investigate or prosecute any suspected criminal acts as there is no private right of action to enforce state or federal criminal statutes. See generally Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“[A] private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.”); see also Walker v. CIBC Ltd., 1:20-CV-1337 (TJM/CFH), 2021 WL 3518439 (N.D.N.Y. Apr. 13, 2021) (“It appears plaintiff is either seeking the criminal prosecution of an individual or individuals or a law enforcement investigation, which is beyond this Court's jurisdiction.”); McFadden v. Ortiz, 5:12-CV-1244 (MAD/ATB), 2013 WL 1789593 (N.D.N.Y. Apr. 26, 2013).
X. Other Claims
On November 6, 2024, almost a month after plaintiff filed his complaint, plaintiff filed a letter with the court submitting approximately forty pages of “supportive legal documentation” for annexation in connection to this case. (See Dkt. No. 9). In his letter, plaintiff complains, generally, of the conditions of confinement at the Onondaga County Justice Center (“OCJC”), where he is currently being detained. (See id.). Plaintiff also indicates that he intends to file a future § 1983 lawsuit in connection with these complaints. (Id. at 2). Plaintiff's letter does not identify any named defendants nor otherwise conform to the pleading requirements of a complaint. Moreover, the exhibits attached to plaintiff's most recent submission have no relevance to the allegations raised in plaintiff's complaint. Accordingly, and in light of plaintiff's representation, the court does not construe plaintiff's letter as a request to supplement his complaint in this action with any claims in connection with his confinement at OCJC. To this end, plaintiff's request to annex the forty pages of exhibits attached to his most recent submission to the complaint in this action should be denied. (See Dkt. No. 9-1).
To the extent plaintiff seeks “for criminal charges to be prosecuted” against unnamed deputies at the OCJC in his most recent letter, (see Dkt. No. 9 at 3), the district court should deny this request for the reasons stated above.
WHEREFORE, based on the findings above, it is
ORDERED, that plaintiff's motion to proceed IFP (Dkt. No. 2) is GRANTED,and it is further
The court notes that although plaintiff's IFP application has been granted, plaintiff will still be required to pay fees that he may incur in the future regarding this action, including but not limited to copying and/or witness fees.
RECOMMENDED, that the following claims SURVIVE sua sponte review: Plaintiff's (1) Fourteenth Amendment denial of the right to a fair trial claim against defendant P.O. Merdanovic relative to his allegedly false report that another officer observed plaintiff “throwing a bag,” (2) Fourteenth Amendment denial of the right to a fair trial claim against defendant P.O. Harrington relative to the alleged false testimony he provided at the (a) grand jury proceedings on January 11, 2024, and (b) suppression hearing on June 28, 2024, and (3) legal malpractice claim under New York State law against defendant Susan Carey; and it is further
RECOMMENDED, that the following claims be DISMISSED with prejudice: Plaintiff's (1) Eighth Amendment claims for cruel and unusual punishment, (2) § 1983 claim against defendant D.A. William Fitzpatrick based on his prosecutorial immunity, and (3) claims for injunctive and/or declaratory relief; and it is further
Generally, when a district court dismisses a pro se action sua sponte, the plaintiff will be allowed to amend his action. See Gomez v. USAA Fed. Savings Bank, 171 F.3d 794, 796 (2d Cir. 1999). However, an opportunity to amend is not required where the defects in the plaintiff's claims are substantive rather than merely formal, such that any amendment would be futile. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Pucci v. Brown, 423 Fed. App'x 77, 78 (2d Cir. 2011).
RECOMMENDED, that all remaining claims be DISMISSED without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim upon which relief may be granted; and it is further
Should Plaintiff seek to pursue any of the claims dismissed without prejudice, he must file an amended complaint. Any amended complaint, which shall supersede and replace the original Complaint in its entirety, must allege claims of misconduct or wrongdoing against each named defendant which Plaintiff has a legal right to pursue, and over which jurisdiction may properly be exercised. Any amended complaint filed by Plaintiff must also comply with the pleading requirements of Rules 8 and 10 of the Federal Rules of Civil Procedure.
RECOMMENDED, that plaintiff's request to attach the forty pages of exhibits at Dkt. No. 9-1 to the complaint in this action (Dkt. No. 1) be DENIED, and it is further
ORDERED, that plaintiff must wait until the District Court rules on this Order and Report-Recommendation before he files any proposed amended complaint, and it is
ORDERED, that the Clerk of the Court serve a copy of this Order and Report-Recommendation on plaintiff by regular mail.
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).
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) 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, 89 (2d Cir. 1993)(citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72.