Opinion
5:21-cv-85 (DNH/TWD)
07-21-2021
RODERICK GOLDEN, Plaintiff, v. JOHN GAGNE, et al., Defendants.
RODERICK GOLDEN Plaintiff, pro se.
RODERICK GOLDEN Plaintiff, pro se.
ORDER AND REPORT-RECOMMENDATION
THÉRÈSE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE.
I.INTRODUCTION
Roderick Golden (“Plaintiff”) filed this pro se action against John Gagne, Field Investigator, Syracuse DMV (“Gagne”); Timothy Furlong, Regional Director, Syracuse DMV (“Furlong”); Detective William Root, Onondaga County Sheriff's Dept. (“Root”); William Fitzpatrick, Onondaga County District Attorney (“DA Fitzpatrick”); and Hon. Lawrence Marks, NY Chief Administrative Judge for NY Courts (“Judge Marks”) (collectively “Defendants”). (Dkt. No. 1.) After granting Plaintiff's in forma pauperis application, this Court recommended that Plaintiff's complaint be dismissed without prejudice because it failed to provide sufficient information for the Court to review or for Defendants to have fair notice of the claims against them. (Dkt. No. 6.) The Court also denied Plaintiff's motion for appointment of counsel as premature. Id. U.S. District Judge David N. Hurd adopted the Report-Recommendation and afforded Plaintiff an opportunity to submit an amended complaint. (Dkt. No. 7.) Currently before the Court is Plaintiff's amended complaint and a second motion for appointment of counsel. (Dkt. Nos. 11, 12.)
II. SUFFICIENCY OF THE AMENDED COMPLAINT
A. Standard of Review
Title 28 of United States Code Section 1915 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).
Additionally, when reviewing a complaint, the Court may also look to the Federal Rules of Civil Procedure (“Federal Rules”). Rule 8 of the Federal Rules 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.” 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)). Although “[n]o technical form is required, ” the Federal Rules make clear that each allegation contained in the pleading “must be simple, concise, and direct.” Fed.R.Civ.P. 8(d).
Further, Rule 10 of the Federal Rules provides in pertinent part that:
A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. A later pleading may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity, each claim founded on a separate transaction or occurrence - and each defense other than a denial - must be stated in a separate count or defense.Fed. R. Civ. P. 10(b). This serves the purpose of “provid[ing] an easy mode of identification for referring to a particular paragraph in a prior pleading[.]” Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y. 1999) (quotation marks and 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 of the Federal Rules “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).
Where a pro se complaint fails to state a cause of action, the court generally “should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation and internal quotation marks omitted). An opportunity to amend is not required where “the problem with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.” Id. (citation omitted).
B. Summary of the Amended Complaint
The following facts are set forth as alleged by Plaintiff. On December 5, 2016, Plaintiff was “subjected to a warrantless arrest” by Gagne, Root, and two other unidentified Onondaga County Sheriff's Deputies, John Doe 1 and John Doe 2. (Dkt. No. 11 at 4-5.) Plaintiff's arrest was “effectuated during a brief-court ordered recess during the trial of a related Syracuse City Court Small civil case, ” which Plaintiff and his wife, Tokay Golden “were attending and actively litigating pro se as co-Plaintiffs against a local automobile repair shop Tri-Count Auto.” Id. at 5. Gagne was “also in attendance at that trial, ostensibly as a subpoenaed witness for [Plaintiff's] adversary, Tri-Count Auto.” Id.
Page references to documents identified by docket number refer 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.
Gagne and the “three other arresting officers-all acting in concert with each other under color of state law within the scope of the respective employment, and all in full public view- accosted [Plaintiff] in the hallway outside the courtroom and forthwith placed [him] under arrest.” Id. at 5-6. Plaintiff was “publicly handcuffed, frisked, and then openly ‘perp walked' from the building to the Onondaga County Justice Center nearby for booking, fingerprinting, and other intake processing incidental to [Plaintiff] being confined there pending [his] arrangement.” Id. at 6. Plaintiff was upset, embarrassed, and humiliated by the “public spectacle” of being arrested on a “spurious criminal charge.” Id. The amended complaint refers to the foregoing arrest as the “first in a concurrent serious of four distinct (but related) ensuing unlawful seizures, each of which was violative of [Plaintiff's] Fourth Amendment rights[.]” Id.
The next morning, approximately twenty-two hours following his arrest, Plaintiff was “transported from the Justice Center to be arraigned in Syracuse City Court (Cecile, J.) on a felony complaint attested to by Defendant Gagne as the complainant.” Id. at 7. Plaintiff subsequently learned the felony complaint charged him with “having committed the class D Felony of Criminal Possession of a Forged Instrument, Second Degree (NY Penal Law § 170.25)” in that “on information and belief” “approximately fourteen months prior to [his] arrest, [Plaintiff] fraudulently and feloniously possessed a counterfeit New York safety inspection sticker which was found affixed to a motor vehicle allegedly driven by [Plaintiff] to Tri-Count.” Id. at 7-8.
During the arraignment, represented by assigned counsel, Plaintiff pleaded not guilty. Id. at 8. Plaintiff claims the arraignment “included no discussion whatsoever of the factual underpinning of the charge; or the propriety of [his] warrantless arrest; or the facial sufficiency of the accusatory instrument; or any other matter even remotely related to the issue of probable cause to believe that [Plaintiff] committed the charged offense.” Id. “Judge Cecile precipitately concluded [the] arraignment by issuing a securing order which remanded [Plaintiff] to the Sheriff's custody and set [his] bail at $7500 cash/bond.” Id. at 9. The case was adjourned for further proceedings on “Gagne's felony complaint.” Id. Plaintiff was returned to the Justice Center, where he “remained in custody for 2-3 days” before he “could raise the funds necessary to secure [his] release with a bail bond.” Id. The amended complaint refers to the foregoing as the “second unlawful seizure.” Id.
“In the ensuing months, ” Plaintiff had to “put aside” other “personal and business affairs so that [he] could devote a significant amount of [his] time, energy, effort and expense to developing [his] defense to Defendant Gagne's baseless and spurious criminal charge.” Id. at 10. He was required to take time off from work to make required court appearances, to consult with his attorneys, and to “make visits with physicians for treatment of [his] worsening mental and emotional distress.” Id.
On December 9, 2016, during one of the numerous courts appearances Plaintiff was required to make, Syracuse City Court Judge Mary A. Doherty issued “an order of protection in person in favor of Jonathan Zerbel, the individual identified in defendant John Gagne's felony complaint as being the deponent in a curiously unfiled (and inexplicably missing) supporting deposition.” Id. at 10-11. “This ‘phantom' supporting deposition never surfaced at any time during [Plaintiff's] prosecution on Defendant Gagne's felony complaint, even though it allegedly contained crucial information necessary for the establishment of probable cause to believe that [Plaintiff] committed Defendant Gagne's charged felony offense.” Id. at 11. The amended complaint refers to Judge Doherty's “issuance of her order of protection'” as the “third unlawful seizure.” Id.
Plaintiff claims “the restrictions the unlawful seizure imposed on [his] liberty rights unduly interfered with [his] Fifth and Fourteenth Amendment due process rights to a fair trial on Defendant Gagne's felony complaint inasmuch as those restrictions hampered [his] ability to investigate the scene of the alleged crime, and to speak with any prospective witnesses who might have been present on the Tri-Count premises at relevant times.” Id. at 12. Plaintiff claims “Judge Doherty's issuance of her order of protection was preceded by no exploration whatsoever of any facts which might be considered as being supporting of establishing the existence of reasonable cause to believe that [Plaintiff] committed the offense charged in Investigator Gagne's felony complaint.” Id.
On May 18, 2017, during a scheduled pre-trial conference with Syracuse City Court Judge Derrick Thomas, “the felony charge was to be ‘reduced' (on the People's initiative) in order to bypass the Grand Jury's considering the charge.” Id. a 12-13. At that appearance, “there was little or no compliance with the controlling procedural mandates of Criminal Procedure Law” in that the case “appears to have never been presented to the Grand Jury; and second, no explanation was proffered to secure or justify the People's curious failure to prepare, serve or file a replacement accusatory instrument.” Id. at 13.
On January 23, 2018, Plaintiff's case was “brought to its long-overdue conclusion” when “following a bring off-the-record discussion among Judge Thomas, Onondaga County Assistant District Attorney Jane Raven and [Plaintiff], the Judge dismissed the case with the concurrence of the parties.” Id. at 13. This court appearance included “no discussion whatsoever of any facts which might arguable bear on the issue of reasonable cause to believe that [Plaintiff] committed the offense which was being dismissed.” Id. at 13-14.
“In retrospect, [Plaintiff] now firmly believe[s] that [his] being charged with the original counterfeit inspection sticker felony charge was the actual fruit of a nefarious conspiracy to violate [his] civil rights that originated with Timothy Furlong, Investigator John Gagne, and unknown officers at the Syracuse Regional Office of the New York Department of Motor Vehicles.” Id. at 14. Plaintiff believes he was “singled out for retaliation because of a complaint [he] lodged with State Assemblyman Sam Roberts' office in 2012 seeking redress for some questionable practices of a certain DMV investigator (Michael Santalucia).” Id. “That complaint earned a ‘troublemaker' status with the DMV” for Plaintiff and his wife. Id. Plaintiff believes it was “that status” which “severely warped Investigator Gagne's capability to conduct a full, fair and through investigation.” Id.
The amended complaint lists violations of Plaintiff's constitutional rights under the First, Fourth, Fifth, Sixth, and Fourteenth Amendments. Id. at 16. Plaintiff seeks declaratory and monetary relief. Id. at 17. For a more detailed description of these facts and claims, reference is made to the amended complaint.
C. Analysis
Plaintiff brings this action pursuant to § 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.” German v. Fed. Home Loan Mortg. Corp., 885 F.Supp. 537, 573 (S.D.N.Y. 1995) (citing Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983)) (footnote omitted). “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) (citation omitted).
To state a cognizable claim under § 1983, a complaint must allege “(1) ‘that some person has deprived [the plaintiff] of a federal right,' and (2) ‘that the person who has deprived [the plaintiff] of that right acted under color of state law.'” Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005) (quoting Gomez v. Toledo, 446 U.S. 635, 640 (1980)) (alteration omitted).
1. DA Fitzpatrick and Judge Marks
Plaintiff names DA Fitzpatrick and Judge Marks as Defendants in the caption of the amended complaint and list of parties. (Dkt. No. 11 at 3.) DA Fitzpatrick and Judge Marks, however, are not referenced anywhere in the body of the amended complaint and Plaintiff has not asserted any cause of action against these Defendants. In the absence of factual allegations sufficient to plausibly suggest DA Fitzpatrick and Judge Marks were personally involved in conduct that violated Plaintiff's constitutional rights, the amended complaint fails to state a cognizable claim against these Defendants. See Cipriani v. Buffardi, No. 06-CV-0889 (GTS/DRH), 2007 WL 607341, *1 (N.D.N.Y. Feb. 20, 2007) (“Dismissal is appropriate where a defendant is listed in the caption, but the body of the complaint fails to indicate what the defendant did to the plaintiff.”) (citation omitted); see also Casino v. Rohl, No. 14-CV-2175, 2014 WL 5425501, at *6 (E.D.N.Y. Oct. 23, 2014) (dismissing complaint since the plaintiff had not adequately pled the defendant's personal involvement in any of the constitutional deprivations alleged in the amended complaint).
Additionally, and as previously noted in the Report-Recommendation (Dkt. No. 6), DA Fitzpatrick and Judge Marks are most likely entitled to prosecutorial and judicial immunity. See Parkinson v. Cozzolino, 238 F.3d 145, 150 (2d Cir. 2001); Mireles v. Waco, 502 U.S. 9, 11-12 (1991) (per curiam).
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 (PGG), 2012 WL 2569085, at *5 (S.D.N.Y. July 3, 2012) (quoting Johnson v. City of New York, No. 00 CIV 3626 (SHS), 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, 321-22 (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.
Similarly, judges are absolutely immune from suit for damages for any actions taken within the scope of their judicial responsibilities. Mireles v. Waco, 502 U.S. 9, 11 (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.”). Generally, “acts arising out of, or related to, individual cases before the judge are considered judicial in nature.” Bliven v. Hunt, 579 F.3d 204, 210 (2d Cir. 2009). This immunity applies to state court judges who are sued in federal court pursuant to § 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). The only two circumstances in which judicial immunity does not apply is when he or she takes action “outside” his or her judicial capacity and when the judge takes action that, although judicial in nature, is taken “in absence of jurisdiction.” Mireles, 502 U.S. at 11-12.
Accordingly, the Court recommends the amended complaint be dismissed as against DA Fitzpatrick and Judge Marks.
2. Fourth Amendment False Arrest
The Court construes Plaintiff's amended complaint as alleging a § 1983 claim for false arrest in violation of his Fourth Amendment rights. The elements of a false arrest claim under the Fourth Amendment, which are essentially the same as a state law false arrest claim, are: “(1) the defendant intended to confine [the plaintiff], (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement was not otherwise privileged.” Weyant v. Okst, 101 F.3d 845, 853 (2d Cir. 1996) (citation and quotation marks omitted). “Under New York law, the existence of probable cause is an absolute defense to a false arrest claim.” Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir. 2006).
As a threshold matter, only those events occurring pre-arraignment are properly considered part of Plaintiff's false arrest claim, as opposed to his malicious prosecution claim, discussed below. As explained by the Supreme Court, a false arrest claim “consists of detention without legal process . . . .” Wallace v. Kato, 549 U.S. 384, 389 (2007). As a result, the false arrest ends once the [arrestee] is arraigned and subject to legal process, and thereafter any claim of unlawful detention forms part of the entirely separate tort of malicious prosecution. Id. at 389-390. “If there is a false arrest claim, damages for that claim cover the time for detention up until issuance of process or arraignment, but not more. From that point on, any damages recoverable must be based on a malicious prosecution claim and on the wrongful use of judicial process rather than detention itself.” Id. at 390 (citation omitted).
Here, the amended complaint alleges that Gagne and Root arrested Plaintiff without the privilege to do so because Plaintiff had not committed any crime. Mindful of the Second Circuit's instruction that a pro se plaintiff's pleadings must be liberally construed, Sealed Plaintiff, 537 F.3d at 191, the Court recommends that Gagne and Root be required to respond to Plaintiff's Fourth Amendment false arrest claim. The Court expresses no opinion on whether this claim can withstand a dispositive motion.
Rule 10(a) of the Federal Rules 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. United States, No. 10-CV-0141, 2014 WL 3858398, at *2 (W.D.N.Y. Aug. 1, 2014) (the failure to name a party in the caption 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). In this instance, while Plaintiff claims John Doe 1 and John Doe 2 were “arresting officers, ” see Dkt. No. 11 at 4-5, the aforementioned unidentified individuals are not identified as defendants in the caption of the complaint or the list of parties. See id. at 1-2. Thus, the Court will not construe the amended complaint to include any claims or causes of action against the Doe Defendants. For the same reason, the Court will not construe the amended complaint to include any claims or cause of actions against other private individuals referenced in the body of the complaint, including but not limited to, assistant district attorneys, private attorneys, and state judges as they are not identified as defendants in the caption of the amended complaint or list of parties.
3. Fourth Amendment Malicious Prosecution
The Court construes Plaintiff's amended complaint alleging a § 1983 claim for malicious prosecution in violation of his Fourth Amendment rights. The elements of a malicious prosecution claim are “(1) the initiation of a proceeding, (2) its termination favorably to plaintiff, (3) lack of probable cause, and (4) malice.” Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003) (quoting Colon v. City of New York, 60 N.Y.2d 78, 82 (1983) (internal quotation marks omitted)). “In addition, the Second Circuit requires that a plaintiff demonstrate that there was a ‘post arraignment seizure,' since a § 1983 malicious prosecution claim is ‘grounded ultimately on the Fourth Amendment's prohibition of unreasonable seizures.'” Hawthorne v. City of Albany, No. 1:17-CV-00716 (GTS/TWD), 2017 WL 3822112, at *6 (N.D.N.Y. July 25, 2017) (quoting Swartz v. Insogna, 704 F.3d 105, 112 (2d Cir. 2013)), report and recommendation adopted sub nom. Hawthorne v. Ruecker, 2017 WL 4351520 (N.D.N.Y. Oct. 2, 2017).
Plaintiff has alleged that on December 5, 2016, he was arrested and charged with possession of a forged instrument in the second degree “on Gagne's felony complaint.” (Dkt. No. 11 at 4, 7.) Plaintiff contends that the charge was dismissed on January 23, 2018, indicating not only a favorable termination for Plaintiff, but also a post-arraignment seizure. Id. at 13; see Savino, 331 F.3d at 72; Hawthorne, 2017 WL 3822112, at *6. Moreover, Plaintiff contends he did not commit the charged crime and was deemed a “trouble maker” at the DMV, suggesting a lack of probable cause and malice. (Dkt. No. 11 at 8, 10, 14.)
Accordingly, at this early stage, Plaintiff sufficiently sets forth a plausible malicious prosecution claim, and it is recommended that Plaintiff's claim be permitted to proceed against Gagne. See Hawthorne, 2017 WL 3822112, at *1, 6 (allowing malicious prosecution claim to proceed against the police officer defendants); Frederique v. Cty. of Nassau, 168 F.Supp.3d 455, 477 (E.D.N.Y. 2016) (“[A]n arresting officer may be held liable for malicious prosecution when a police officer creates false information likely to influence a jury's decision and forwards that information to prosecutors, or when she withholds relevant and material information.”). The Court expresses opinion on whether this claim can withstand a dispositive motion.
4. First Amendment Retaliation
The Court construes Plaintiff amended complaint as attempting to plead a First Amendment retaliatory arrest claim against Gagne. (Dkt. No. 11 at 14.) “To prevail on a First Amendment theory of retaliatory arrest, [Plaintiff] must prove that (1) he has an interest protected by the First Amendment; (2) defendants' actions were motivated or substantially caused by his exercise of that right; and (3) defendant' actions effectively chilled the exercise of his First Amendment right.” Malloy v. Sopchak, No. 1:18-CV-1460 (BKS/DJS), 2019 WL 1024354, at *4 (N.D.N.Y. Jan. 28, 2019) (citation and quotation marks omitted), report and recommendation adopted, 2019 WL 1025765 (N.D.N.Y. Mar. 4, 2019). “[A] complaint which alleges retaliation in wholly conclusory terms may safely be dismissed on the pleadings alone.” Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983).
Although Plaintiff appears to suggest that he was “singled out for retaliation because of a complaint [he] lodged with State Assemblyman Sam Roberts' office in 2012 seeking redress for some questionable practices of a certain DMV investigator (Michael Santalucia), ” Dkt. No. 11 at 14, the amended complaint contains no facts whatsoever to suggest there is any causal connection between the alleged misconduct of Gagne, the arrest at issue, and the complaint Plaintiff lodged four years before against another individual. See Hare v. Hayden, No. 09 CIV. 3135, 2011 WL 1453789, at *4 (S.D.N.Y. Apr. 14, 2011) (“As a general matter, it is difficult to establish one defendant's retaliation for complaints against another defendant.”)); Quick v. Minale, No. 9:16-CV-0807 (BKS/DJS), 2016 WL 6124495, at *7 (N.D.N.Y. Oct. 20, 2016) (finding alleged retaliatory actions that occurred at least two years and up to four years after the protected conduct dismissed any suggestion of a causal connection); see also Spavone v. Fischer, No. 10 CIV. 9427, 2012 WL 360289, at *5 (S.D.N.Y. Feb. 3, 2012) (finding fifteen months inadequate to establish a causal connection through temporal proximity).
Moreover, there is no indication that Plaintiff's speech was “actually chilled.” Cabrera v. City of New York, No. 16-CV-2298 (RRM/RER), 2018 WL 4636798, at *8 (E.D.N.Y. Sept. 27, 2018) (quoting Curely of Suffern, 268 F.3d 65, 73 (2d Cir. 2001) (“Where a party can show no change in his behavior, he has quite plainly shown no chilling of his First Amendment right to free speech.”); see also Kuck v. Danaher, 600 F.3d 159, 168 (2d Cir. 2010) (affirming dismissal of complaint which failed to allege that speech was “actually chilled” as a result of defendant's actions).
Accordingly, the Court recommends dismissing First Amendment retaliation claim for failure to state a claim upon which relief may be granted.
5. Conspiracy
Liberally construed, Plaintiff alleges Furlong, Gagne, and unknown others at the Syracuse Regional Office of the New York Department of Motor Vehicles conspired against him. (Dkt. No. 11 at 14.) “To prove a § 1983 conspiracy, a plaintiff must show: (1) an agreement between two or more state actors or between a state actor and a private entity; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages.” Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999) (citations omitted).
Here, Plaintiff states in conclusory fashion that “the original counterfeit inspection sticker felony charge was the actual fruit of a nefarious conspiracy to violate [his] civil rights, ” Dkt. No. 11 at 14, but he failed to plead any agreement between two or more state actors, or how defendants acted in concert to allegedly falsely arrest and/or maliciously prosecute him. Wholly conclusory claims of conspiracy are properly dismissed sua sponte on initial review. See Johnson v. Goord, 12 Fed.Appx. 22, 23 (2d Cir. 2000); Delaney v. City of Albany, No. 1:18-CV-1193 (DNH/CFH), 2019 WL 2537312, at *5 (N.D.N.Y. June 20, 2019) (dismissal on initial review of wholly conclusory conspiracy claim), report and recommendation adopted, 2019 WL 3454618 (N.D.N.Y. July 31, 2019).
Accordingly, the Court recommends dismissing Plaintiff's conspiracy claim for failure to state a claim upon which relief may be granted.
6. Fifth Amendment
The amended complaint references the Fifth Amendment. (Dkt. No. 1 at 12, 16.) The Fifth Amendment, however, applies to the United States government and federal employees, and not to the States. See Dusenbery v. United States, 534 U.S. 161, 167 (2002) (holding Fifth Amendment's Due Process Clause protects citizens against only federal government actors, not state officials); Ambrose v. City of New York, 623 F.Supp.2d 454, 466-67 (S.D.N.Y. 2009) (holding that any due process claim against the city was “properly brought under the Fourteenth Amendment, not the Fifth Amendment”).
Because Plaintiff has not alleged any deprivation of his due process rights by the federal government or federal employees, the Court also recommends dismissal of any Fifth Amendment claim.
7. Remaining Claims
While the amended complaint references the Sixth and Fourteenth Amendments, Dkt. No. 11 at 16, Plaintiff fails to state the basis for such claims under these provisions and/or fails to identify any individuals personally involved in the alleged constitutional violations.
The Court notes, however, that to the extent Plaintiff's due process claim are premised on the same factual allegations underlying his Fourth Amendment claims of false arrest and malicious prosecution, any such due process claim would be dismissed as duplicative. Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion) (“Where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing such a claim.”) (internal quotation marks omitted). Moreover, to the extent Plaintiff complains about “due process” violations as a result of the proceedings held by the city court judges, as discussed above, with minor exceptions, judges are entitled to absolute immunity. See Part III.C.1.
Accordingly, the Court recommends dismissing the remaining claims for failure to state a claim upon which relief may be granted.
III. MOTION FOR APPOINTMENT OF COUNSEL
Plaintiff has been unsuccessful in his efforts to obtain pro bono counsel on his own. (Dkt. No. 12.) Thus, the Court may properly consider Plaintiff's motion. It is well-settled that there is no right to appointment of counsel in civil matters. Burgos v. Hopkins, 14 F.3d 787, 789 (2d Cir. 1994). 28 U.S.C. § 1915(e)(1). Title 28 of United States Code Section 1915 provides that a court may request an attorney to represent any person “unable to afford counsel.” 28 U.S.C. § 1915(e)(1). Appointment of counsel must be done carefully in order to preserve the “precious commodity” of volunteer lawyers for those litigants who truly need a lawyer's assistance. Cooper v. A. Sargenti, Inc., 877 F.2d 170, 172-73 (2d Cir. 1989).
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). As the Second Circuit stated in Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986), the court “should first determine whether the indigent's position seems likely to be of substance.” 802 F.2d at 61. If the claim satisfies that threshold requirement, a number of factors must be carefully considered by the court in ruling upon such a motion. Among these factors are:
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, 802 F.2d at 61-62). 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) (citing Hodge, 802 F.2d at 61).
At this early stage of the litigation, where the amended complaint has not yet been served on the Defendants and they have not had the opportunity to respond to Plaintiff's allegations, Plaintiff's motion for appointment of counsel is premature.
Moreover, even assuming, for purposes of this application only, that Plaintiff's position seems likely to be of substance, the relevant factors weigh decidedly against granting Plaintiff's application at this time. For example: (1) the case does not present novel or complex issues; (2) it appears as though, to date, Plaintiff has been able to effectively litigate this action; and (3) if this case proceeds to trial, it is highly probable this Court will appoint pro bono trial counsel at the final pretrial conference. At this time, the Court is not aware of any special reason why appointment of counsel would be more likely to lead to a just determination of this litigation.
Accordingly, Plaintiff's motion is denied. (Dkt. No. 12.) Plaintiff may only file another motion for appointment of counsel in the event he can demonstrate that, in light of specific changed circumstances, consideration of the above factors warrants granting the application. Again, it is highly probable this Court will appoint pro bono trial counsel at the final pretrial conference if this case proceeds to trial.
ACCORDINGLY, it is hereby
RECOMMENDED that Plaintiff's amended complaint (Dkt. No. 11) be accepted for filing; and it is further
RECOMMENDED that Plaintiff's Fourth Amendment false arrest claim against Defendants Gagne and Root SURVIVES initial review and requires a response; and it is further
RECOMMENDED that Plaintiffs Fourth Amendment malicious prosecution claim against Defendant Gagne SURVIVES initial review and requires a response; and it is further
RECOMMENDED that the remaining claims be dismissed pursuant to 28 U.S.C. § 1915(e) for failure to state a claim upon which relief can be granted and with leave to amend; and it is further
RECOMMENDED that the Clerk be directed to TERMINATE DA Fitzpatrick, Judge Marks, and Furlong as Defendants in this action; and is if further
ORDERED that Plaintiffs motion to appoint counsel (Dkt. No. 12) is DENIED; and it is further
ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report-Recommendation 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) (Supp. 2013); 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. 6(a)(1)(C).