Opinion
19-CV-5093 (CM)
07-24-2019
ELVIN GENAO, Plaintiff, v. NEW YORK CITY BAR ASSOCIATION, Defendant.
ORDER OF DISMISSAL :
Plaintiff, appearing pro se, brings this action styled as a criminal complaint. By order dated July 24, 2019, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis ("IFP"). The Court dismisses the complaint for the reasons set forth below.
STANDARD OF REVIEW
The Court must dismiss an IFP complaint, or portion thereof, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the "strongest [claims] that they suggest," Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original).
DISCUSSION
On June 5, 2019, the Court issued an order under 28 U.S.C. § 1651, barring Plaintiff from filing any new action IFP without first obtaining from the Court leave to file. See Genao v. Saint Paul's Church, No. 19-CV-2704 (CM) (S.D.N.Y. June 5, 2019). Plaintiff filed this case before the Court issued the June 5, 2019 bar order. But the complaint follows the same pattern as his prior filings that resulted in the Court issuing the injunction; that is, Plaintiff alleges that Defendant New York City Bar Association violated several criminal statutes. But Plaintiff cannot initiate the arrest and prosecution of the Bar Association because private citizens cannot prosecute criminal actions in federal court. See Leeke v. Timmerman, 454 U.S. 83, 86-87 (1981). "[T]he decision to prosecute is solely within the discretion of the prosecutor." Id. at 87. Nor can Plaintiff direct prosecuting attorneys to initiate a criminal proceeding against the Bar Association, because prosecutors possess discretionary authority to bring criminal actions, and they are "immune from control or interference by citizen or court." Conn. Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 87 (2d Cir. 1972). Accordingly, the Court dismisses the complaint for failure to state a claim.
District courts generally grant a pro se plaintiff an opportunity to amend a complaint to cure its defects, but leave to amend is not required where it would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Because the defects in Plaintiff's complaint cannot be cured with an amendment, the Court declines to grant Plaintiff leave to amend.
CONCLUSION
The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket.
Plaintiff's complaint, filed IFP under 28 U.S.C. § 1915(a)(1), is dismissed for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(ii).
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of Court is directed to docket this as a "written opinion" within the meaning of Section 205(a)(5) of the E-Government Act of 2002. SO ORDERED. Dated: July 24, 2019
New York, New York
/s/_________
COLLEEN McMAHON
Chief United States District Judge