Opinion
6:22-CV-1398 (LEK/ML)
08-30-2023
DANIELLE C. HENDRICKS, Plaintiff, v. UTICA POLICE DEP'T; UTICA CITY CRIMINAL COURT; JUDGE SABB, Criminal Court Judge; ELIZABETH/ ALYSSA, Utica Public Defender Office; and FRANK, Utica Public Defender, Defendants.
DANIELLE C. HENDRICKS, Plaintiff, Pro Se
DANIELLE C. HENDRICKS, Plaintiff, Pro Se
ORDER AND REPORT-RECOMMENDATION
MIROSLAV LOVRIC, United States Magistrate Judge
The Clerk has sent a pro se complaint in the above captioned action together with an amended application to proceed in forma pauperis and a motion for appointment of counsel filed by Plaintiff Danielle C. Hendricks (“Plaintiff”) to the Court for review. (Dkt. Nos. 1, 10, 12.) For the reasons discussed below, I (1) grant Plaintiff's amended in forma pauperis application (Dkt. No. 10), (2) deny Plaintiff's motion for appointment of counsel (Dkt. No. 12), and (3) recommend that Plaintiff's Complaint (Dkt. No. 1) be dismissed in its entirety in part (1) with leave to amend, and (2) without leave to amend.
I. BACKGROUND
On December 28, 2022, Plaintiff commenced this action by filing a pro se Complaint against defendants Utica Police Department, Utica City Criminal Court, Judge Sabb, Elizabeth/Alyssa, and Frank (collectively “Defendants”). (Dkt. No. 1.) On January 3, 2023, United States District Judge David N. Hurd directed that the case be administratively closed because Plaintiff failed to properly commence the action. (Dkt. No. 2.) Judge Hurd directed that if Plaintiff desired to pursue the action, she must, within 30 days, either pay the filing fee or submit a completed and signed in forma pauperis (“IFP”) application. (Id.)
On March 3, 2023, Plaintiff filed a motion for leave to proceed IFP together with an inmate authorization form. (Dkt. Nos. 3, 4.) On March 3, 2023, Judge Hurd directed the Clerk of the Court to reopen the action and restore it to the Court's active docket. (Dkt. No. 5.) On March 7, 2023, United States Magistrate Judge Therese Whiley Dancks denied Plaintiff's motion for leave to proceed IFP because it was incomplete and unsigned. (Dkt. No. 6.) Judge Dancks directed Plaintiff to, within thirty days, file a signed and completed IFP application or the matter would be administratively closed without further order. (Id.)
On April 18, 2023, Plaintiff filed an amended IFP application. (Dkt. No. 10.) On April 20, 2023, Plaintiff filed a motion to appoint counsel. (Dkt. No. 12.) On May 17, 2023, Judge Hurd reassigned this action to Senior United States District Judge Lawrence E. Kahn and the undersigned. (Dkt. No. 13.)
The Complaint alleges that while incarcerated at the Oneida County Jail, Plaintiff was sexually and verbally harassed and denied showers for days. (Dkt. No. 1 at 4.) In addition, Plaintiff alleges that she was arrested on September 22, 2022, but was not provided with the charge (unauthorized use of a vehicle) against her until October 22, 2022, when she was brought to Utica City Court before Defendant Sabb. (Id.) Plaintiff alleges that Defendant Sabb “added a bail on top of a [$]2,000 bail.” (Id.)
The Complaint on the docket is illegible. However, the undersigned reviewed the original paper Complaint filed with the Court.
The Complaint alleges that the body camera worn by the arresting officer will show that Officer Fredrick forced a man from a car dealership to “file charges” against Plaintiff after he initially declined. (Dkt. No. 1 at 4.) Plaintiff alleges that the police report submitted does not coincide with the body camera. (Id.)
Based on these factual allegations Plaintiff appears to assert the following four claims: (1) a claim that her right to due process was violated pursuant to the Fourteenth Amendment and 42 U.S.C. § 1983; (2) a claim that her First Amendment rights were violated; (3) a claim that her Sixth Amendment rights were violated by the imposition of bail; and (4) a claim that her Miranda rights were not read to her. (Dkt. No. 1 at 5.) As relief Plaintiff requests that “Officer be found guilty for crimes he committed . . . [and] Judge Sabb be found [g]uilty.” (Id.)
II. PLAINTIFF'S AMENDED APPLICATION TO PROCEED IN FORMA PAUPERIS
“When a civil action is commenced in a federal district court, the statutory filing fee, currently set at $402, must ordinarily be paid. 28 U.S.C. § 1914(a). A court is authorized, however, to permit a litigant to proceed in forma pauperis status if a party “is unable to pay” the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1). After reviewing Plaintiff's amended in forma pauperis application (Dkt. No. 10), the Court finds that Plaintiff meets this standard. Therefore, Plaintiff's amended application to proceed in forma pauperis is granted.
The language of that section is ambiguous because it suggests an intent to limit availability of in forma pauperis status to prison inmates. See 28 U.S.C. § 1915(a)(1) (authorizing the commencement of an action without prepayment of fees “by a person who submits an affidavit that includes a statement of all assets such prisoner possesses”). The courts have construed that section, however, as making in forma pauperis status available to any litigant who can meet the governing financial criteria. Hayes v. United States, 71 Fed.Cl. 366, 367 (Fed. Cl. 2006); Fridman v. City of N.Y., 195 F.Supp.2d 534, 536 n.1 (S.D.N.Y. 2002).
Plaintiff is reminded that, although her application to proceed in forma pauperis has been granted, she is still required to pay fees that she may incur in this action, including copying and/or witness fees.
III. LEGAL STANDARD FOR REVIEW OF THE COMPLAINT
“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2).
In determining whether an action is frivolous, the court must consider whether the complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Dismissal of frivolous actions is appropriate to prevent abuses of court process as well as to discourage the waste of judicial resources. Neitzke, 490 U.S. at 327; Harkins v. Eldridge, 505 F.2d 802, 804 (8th Cir. 1974); see Fitzgerald v. First East Seventh Street Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000) (a district court “may dismiss a frivolous complaint sua sponte even when the plaintiff has paid the required filing fee[.]”); see also Pflaum v. Town of Stuyvesant, Columbia Cnty., N.Y., 11-CV-0335, 2016 WL 865296, at *1, n.2 (N.D.N.Y. Mar. 2, 2016) (Suddaby, C.J.) (finding that the Court had the power to address and dismiss additional theories of the plaintiff's retaliation claim sua sponte because those theories were so lacking in arguable merit as to be frivolous).
In order to state a claim upon which relief can be granted, a complaint must contain, inter alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The requirement that a plaintiff “show” that he or she is entitled to relief means that a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 [2007]). “Determining whether a complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial experience and common sense....[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (internal citation and punctuation omitted).
“In reviewing a complaint . . . the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); see also Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam) (reading the plaintiff's pro se complaint “broadly, as we must” and holding that the complaint sufficiently raised a cognizable claim). “[E]xtreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and [the] parties . . . have had an opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983).
IV. ANALYSIS
In addressing the sufficiency of a plaintiff's complaint, the court must construe her pleadings liberally. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Having reviewed Plaintiff's Complaint with this principle in mind, I recommend that all causes of action be dismissed.
A. Claims Against Defendant Sabb
1. Request for Monetary Relief
To the extent that Plaintiff asserts any claims pursuant to § 1983 seeking monetary damages against Defendant Sabb-who acted as the criminal law judge-those claims are barred under the doctrine of judicial immunity. Under this doctrine, judges are absolutely immune from a suit seeking damages for any actions taken within the scope of their judicial responsibilities. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991). Generally, “acts arising out of, or related to, individual cases before [a] judge are considered judicial in nature.” Bliven v. Hunt, 579 F.3d 204, 210 (2d Cir. 2009). “[E]ven allegations of bad faith or malice cannot overcome judicial immunity.” Bliven, 579 F.3d at 209. This is because “[w]ithout insulation from liability, judges would be subject to harassment and intimidation.” Young v. Selsky, 41 F.3d 47, 51 (2d Cir. 1994). Further, as amended in 1996, § 1983 provides that “in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.” 42 U.S.C. § 1983.
Judicial immunity does not apply when a judge takes action outside his or her judicial capacity, or when a judge takes action that, although judicial in nature, is taken “in the complete absence of all jurisdiction.” Mireles, 502 U.S. at 11-12; see also Bliven, 579 F.3d at 209-10 (describing actions that are judicial in nature). However, “the scope of [a] judge's jurisdiction must be construed broadly where the issue is the immunity of the judge.” Stump v. Sparkman, 435 U.S. 349, 356 (1978).
Plaintiff asserts claims arising from the efforts of Defendant Sabb, in his capacity as a New York State criminal court judge, to address criminal charges pending against Plaintiff. Plaintiff fails to allege facts plausibly suggesting that Defendant Sabb acted beyond the scope of his judicial responsibilities.
As a result, to the extent that the Complaint seeks monetary damages against Defendant Sabb, I recommend that it be dismissed because Defendant Sabb is immune from such relief, 28 U.S.C. § 1915(e)(2)(B)(iii), and, consequently, as frivolous, 28 U.S.C. § 1915(e)(2)(B)(i). Mills v. Fischer, 645 F.3d 176, 177 (2d Cir. 2011) (claims dismissed because of judicial immunity are frivolous for the purpose of the IFP statute, 28 U.SC. § 1915).
2. Request for Declaratory/Injunctive Relief
To the extent that Plaintiff seeks criminal charges be brought against, or a criminal investigation into the actions taken by, Defendant Sabb, I recommend that those claims be dismissed.
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., 20-CV-1337, 2021 WL 3518439, at *5 (N.D.N.Y. Apr. 13, 2021) (Hummel, M.J.) (“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.”), reportrecommendation adopted by 2021 WL 3204860 (N.D.N.Y. July 29, 2021) (McAvoy, J.); McFadden v. Ortiz, 12-CV-1244, 2013 WL 1789593, at *3 (N.D.N.Y. Apr. 26, 2013) (D'Agostino, J.) (holding that “there is no private right of action to enforce either state or federal criminal statutes.”).
As a result, I recommend that Plaintiff's claims against Defendant Sabb be dismissed.
B. Claims Against Defendant Utica City Criminal Court
Plaintiff's claims against Defendant Utica City Criminal Court are not plausible because Defendant Utica City Criminal Court is an entity that does not have an independent legal identity. See Adames v. Cnty. of Suffolk Court, 18-CV-4069, 2019 WL 2107261, at *2 (E.D.N.Y. May 14, 2019) (“Plaintiff's Section 1983 claims against the Jail, the County Court, and DA's Office are not plausible because none of these entities have independent legal identities.”).
It is well-established that “under New York law, departments that are merely administrative arms of a municipality do not have a legal identity separate and apart from the municipality and, therefore, cannot sue or be sued.” Davis v. Lynbrook Police Dep't, 224 F.Supp.2d 463, 477 (E.D.N.Y. 2002); see N.Y. Const. Art. 6, § 1(a) (“The unified court system for the state shall also include the district, town, city and village courts outside the city of New York, as hereinafter provided.”); see also Trahan v. Suffolk Cnty. Corr. Fac., 12-CV-4353, 2012 WL 5904730, *3 (E.D.N.Y. Nov. 26, 2012) (dismissing claims against the Suffolk County Jail because it “is an administrative arm of Suffolk County, without an independent legal identity.”); see also Gollomp v. Spitzer, 568 F.3d 355, 366-67 (2d Cir. 2009) (“[E]very court to consider the question of whether the New York State Unified Court System is an arm of the State has concluded that it is.”); Woodward v. Office of Dist. Atty., 689 F.Supp.2d 655, 658 (S.D.N.Y. 2010) (“[T]he District Attorney's Office is not a suable entity[.]”). As a result, Plaintiff's Section 1983 claims against Defendant Utica City Criminal Court are not plausible and I recommend that they be dismissed without leave to amend pursuant to 28 U.S.C. §§ 1915(e)(2)(b).
Given Plaintiff's pro se status and affording his Complaint a liberal construction, the undersigned has considered whether Plaintiff has alleged a plausible Section 1983 claim against New York State-because Defendant Utica City Court “is unquestionably an ‘arm of the State'”-and finds that she has not. Gollomp, 568 F.3d at 366.
New York State is immune from suits pursuant to 42 U.S.C. § 1983 seeking either legal or equitable relief, under the Eleventh Amendment. Papasan v. Allain, 478 U.S. 265, 276 (1986); Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98-100 (1984); see Ognibene v. Niagara Cnty. Sheriff's Dep't, 03-CV-0678E, 2003 WL 2443989, at *3 (W.D.N.Y. Dec. 1, 2003) (“To the extent the plaintiff names various state courts as defendants and seeks either legal or equitable relief against them under § 1983, they are immune from such suit under the Eleventh Amendment.”). As an agency or arm of the State of New York, the court is immune from suit under the Eleventh Amendment. See Kentucky v. Graham, 473 U.S. 159, 166 (1985); see also Mercado v. Town of Goshen, 20-CV-5399, 2020 WL 5210949, at *3 (S.D.N.Y. Aug. 28, 2020) (“Plaintiff sues the ‘Orange County Court,' which is part of the New York State Unified Court System. The Court therefore dismisses Plaintiff's § 1983 claims against this Defendant under the doctrine of Eleventh Amendment immunity and because these claims are frivolous.”); Curto v. Palisades Collection, LLC, 07-CV-529S, 2008 WL 11357852, at *4 (W.D.N.Y. Mar. 10, 2008) (dismissing the plaintiff's claims against the “New York State Unified Court System, 8th Judicial District Buffalo City Court” as barred by the Eleventh Amendment); Saint-Fleur v. City of New York, 99-CV-10433, 2000 WL 280328, *2 (S.D.N.Y., Mar. 14, 2000) (collecting cases) (“State courts, as arms of the State, are entitled to Eleventh Amendment immunity from suit in federal court.”); Fields v. Walthers, 94-CV-1659, 1997 WL 204308 at *2 (N.D.N.Y. April 5, 1997) (Pooler, J.) (“For Eleventh Amendment purposes, governmental entities of the state that are considered ‘arms of the state' receive Eleventh Amendment immunity.”).
As a result, I recommend that Plaintiff's claims against Defendant Utica City Criminal Court be dismissed.
C. Claims Against Defendants Elizabeth/Alyssa and Frank
Plaintiff's claims against Defendants Elizabeth/Alyssa and Frank, in their capacities representing Plaintiff against criminal charges, should be dismissed for failure to state a claim upon which relief may be granted.
“[I]t is axiomatic that a “public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding.” Flores v. Levy, 07-CV-3753, 2008 WL 4394681, at *7 (E.D.N.Y. Sept. 23, 2008) (citing, inter alia, Rodriguez v. Weprin, 116 F.3d 62, 65-66 (2d Cir. 1997) (“it is well-established that court-appointed attorneys performing a lawyer's traditional functions as counsel to defendant do not act ‘under color of state law' and therefore are not subject to suit under 42 U.S.C. § 1983”)); Benjamin v. Branden, 21-CV-4927, 2022 WL 1092681, at *2 (E.D.N.Y. Apr. 12, 2022) (collecting cases). “Section 1983 ‘was enacted to redress civil rights violations by persons acting under color of State law' and should not be used by clients disappointed with the performance of their attorneys.” Brooks v. New York State Supreme Court, 02-CV-4183, 2002 WL 31528632, at *3 (E.D.N.Y. Aug. 16, 2002) (citation omitted)).
As a result, I recommend that Plaintiff's claims against Defendants Elizabeth/Alyssa and Frank, for their actions representing Plaintiff in the criminal proceeding, be dismissed for failure to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).
The undersigned also notes that the Complaint lists the names of Defendants Elizabeth/Alyssa and Frank in the caption, but fails to again name or assert allegations against them. See Johnson v. Gonzalez, 14-CV-0745, 2015 WL 1179384, at *6 (N.D.N.Y. Mar. 13, 2015) (Kahn, J.) (dismissing the claims against a defendant where the complaint lists the defendant's “name in the caption, but fails to again name or assert allegations against him.”); Serrano v. New York State Dep't of Envtl. Conservation, 12-CV-1592, 2013 WL 6816787, at *15 (N.D.N.Y. Dec. 20, 2013) (D'Agostino, J.) (citing Jaffer v. Chemical Bank, 93-CV-8459, 1994 WL 392260, at *3 (S.D.N.Y. July 26, 1994) (holding that “[w]hen a complaint's caption names a defendant but the complaint does not indicate that the named party injured the plaintiff or violated the law, the motion to dismiss must be granted”)) (dismissing the plaintiff's claims against two defendants who were listed as parties in the complaint and in the caption, but not elsewhere in the complaint).
D. Claims Against Utica Police Department
“Although a municipality is subject to suit pursuant to section 1983, see Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978), a municipal . . . department does not have the capacity to be sued as an entity separate from the municipality in which it is located.” White v. Syracuse Police Dep't, 18-CV-1471, 2019 WL 981850, at *3 (N.D.N.Y. Jan. 7, 2019) (Peebles, M.J.) (citing Krug v. Cnty. of Rennselaer, 559 F.Supp.2d 223, 247 (N.D.N.Y. 2008) (McAvoy, J.); Turczyn ex rel. McGregor v. City of Utica, 13-CV-1357, 2014 WL 6685476, at *2 (N.D.N.Y. Nov. 26, 2014) (Sharpe, J.); Hoisington v. Cnty. of Sullivan, 55 F.Supp.2d 212, 214 (S.D.N.Y. 1999) (“Under New York law, a department of a municipal entity is merely a subdivision of the municipality and has no separate legal existence. Therefore, municipal departments like the Department of Social Services are not amenable to suit and no claims lie directly against the Department.”)), report and recommendation adopted by, 2019 WL 974824 (N.D.N.Y. Feb. 28, 2019) (Suddaby, C.J.). Thus, Defendant Utica Police Department is not proper a party, which would be amenable to suit.
To the extent that the Complaint may be interpreted as asserting a claim against the City of Utica, Plaintiff has failed to state a claim upon which relief may be granted.
A municipality may only be named as a defendant in certain circumstances. In Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978), the Supreme Court outlined the limited circumstances under which a municipality may be liable under Section 1983. A municipality may not be held liable solely because it employs a tortfeasor. Los Angeles Cnty., Cal. v. Humphries, 562 U.S. 29, 36 (2010). Only when the municipality, through the execution of its policies, actually deprives an individual of his constitutional rights, is it liable for the injury. Monell, 436 U.S. at 694.
To establish municipal liability, the policy must actually cause the violation of constitutional rights; it must be the moving force behind the violation. Id.; Dominguez v. Beame, 603 F.2d 337, 341 (2d Cir. 1979). Official policy includes the decisions of a government's lawmakers, the acts of policymaking officials, and practices that are so widespread as to “practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 61 (2011). Municipal liability may also be shown by establishing that a policymaking official ordered or ratified the employees' actions either expressly or tacitly.
Finally, municipal liability can, under limited circumstances, be based upon a failure to properly train the municipality's employees. Connick, 563 U.S. at 51. However, municipal liability is most tenuous when a claim turns on the failure to train. Id. (citing Oklahoma City v. Tuttle, 471 U.S. 808, 822-23 (1985) (plurality opinion) (“[A] ‘policy' of ‘inadequate training'” is “far more nebulous, and a good deal further removed from the constitutional violation, than was the policy in Monell”)). To satisfy the statute, a municipality's failure to train its employees must amount to “‘deliberate indifference to the rights of persons with whom the [untrained employees] come into contact.'” Id. (citing City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989)).
There is no basis for municipal liability alleged in the Complaint. Plaintiff essentially complains of a single incident, during which an officer or officers employed by the Utica Police Department did not act properly. There is no indication that Plaintiff can assert a policy or custom which would support municipal liability based on these facts. In addition, none of Plaintiff's allegations reflect a failure to train or “deliberate indifference” to the rights of persons who would come into contact with employees of Defendant Utica Police Department.
As a result, to the extent that the Complaint may be read to allege a claim against the City of Utica, I recommend that it be dismissed at this time. See Flagg v. NYS Division of Parole, 19-CV-0886, 2019 WL 5002215, at *5 (N.D.N.Y. Aug. 15, 2019) (Baxter, M.J.) (citing DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998)) (“A single incident, particularly if it involved individuals below the policy-making level is insufficient to state a Monell claim.”), report and recommendation adopted by, 2019 WL 4963112 (N.D.N.Y. Oct. 8, 2019) (McAvoy, J.).
V. OPPORTUNITY TO REPLEAD
Generally, a court should not dismiss claims contained in a complaint filed by a pro se litigant without granting leave to replead at least once “when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991); see also Fed.R.Civ.P. 15(a)(2) (“The court should freely give leave when justice so requires.”). An opportunity to replead is not required, however, where “the problem with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact sufficient to support its claim, a complaint should be dismissed with prejudice.”). Stated differently, “[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993); accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.).
See also Carris v. First Student, Inc., 132 F.Supp.3d 321, 340-41 n.1 (N.D.N.Y. 2015) (Suddaby, C.J.) (explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999)-that the Court should grant leave to amend “unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would be successful in stating a claim”-is likely not an accurate recitation of the governing law after Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev'd on other grounds, 682 Fed.Appx. 30.
Here, better pleading could not cure the Court's lack of subject matter jurisdiction based on the immunities described above with respect to Plaintiff's claims pursuant to 42 U.S.C. § 1983 against (1) Defendant Sabb seeking monetary damages, and (2) Defendant Utica City Criminal Court. See Britt v. Doe, 22-CV-0692, 2022 WL 16579207, at *9 (N.D.N.Y. Oct. 13, 2022) (Lovric, M.J.) (recommending dismissal without prejudice and without leave to amend, the plaintiff's claims against defendants who are immune from suit), report and recommendation adopted by, 2022 WL 16571391 (N.D.N.Y. Nov. 1, 2022) (Sharpe, J.). In addition, a better pleading cannot cure the deficiencies related to Plaintiff's request to pursue criminal charges against Defendant Sabb. As a result, I recommend that these claims be dismissed without leave to replead.
However, it is not clear whether a better pleading would permit Plaintiff to assert a cognizable claim pursuant to 42 U.S.C. § 1983 against Defendant Utica Police Department, Elizabeth/Alyssa, and Frank. Out of deference to Plaintiff's pro se status, I recommend that Plaintiff be granted leave to amend the Complaint with respect to those claims.
Construed as against the City of Utica.
If Plaintiff chooses to avail herself of an opportunity to amend, such amended pleading must set forth a short and plain statement of the facts on which she relies to support any legal claims asserted. Fed.R.Civ.P. 8(a). In addition, the amended complaint must include allegations reflecting how the individuals named as Defendants are involved in the allegedly unlawful activity. Finally, Plaintiff is informed that any amended complaint will replace the existing Complaint, and must be a wholly integrated and complete pleading that does not rely upon or incorporate by reference any pleading or document previously filed with the Court. See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (“It is well established that an amended complaint ordinarily supersedes the original, and renders it of no legal effect.” (internal quotation marks omitted)).
VI. PLAINTIFF'S MOTION TO APPOINT COUNSEL
Plaintiff has also submitted a request for appointment of counsel. (Dkt. No. 12.)
As an initial matter, “[a] party has no constitutionally guaranteed right to the assistance of counsel in a civil case.” Leftridge v. Connecticut State Trooper Officer No. 1283, 640 F.3d 62, 68 (2d Cir. 2011) (citations omitted). Courts cannot utilize a bright-line test in determining whether counsel should be appointed on behalf of an indigent party. Hendricks v. Coughlin, 114 F.3d 390, 392-93 (2d Cir. 1997). Instead, a number of factors must be carefully considered by the court in ruling upon such a motion. As a threshold matter, the court should ascertain whether the indigent's claims seem likely to be of substance. A motion for appointment of counsel may be properly denied if the court concludes that the plaintiff's “chances of success are highly dubious.” Leftridge, 640 F.3d at 69. If the court finds that the claims have substance, the court should then consider:
[T]he indigent's ability to investigate the crucial facts, whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder, the indigent's ability to present the case, the complexity of the legal issues and any special reason in th[e] case why appointment of counsel would be more likely to lead to a just determination.Terminate Control Corp., 28 F.3d at 1341 (quoting Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986)). This is not to say that all, or indeed any, of these factors are controlling in a particular case. Rather, each case must be decided on its own facts. Velasquez v. O'Keefe, 899 F.Supp. 972, 974 (N.D.N.Y. 1995) (McAvoy, C.J.) (citing Hodge, 802 F.2d at 61).
In the present matter, the Court has recommended dismissal of the action. As such, the Court cannot find that Plaintiff's claims are likely to be of substance. Plaintiff's motion (Dkt. No. 12) is therefore denied.
ACCORDINGLY, it is
ORDERED that Plaintiff's amended application to proceed in forma pauperis (Dkt. No. 10) is GRANTED; and it is further
ORDERED that Plaintiff's motion for appointment of counsel (Dkt. No. 12) is DENIED without prejudice; and it is further respectfully
RECOMMENDED that the Court DISMISS WITHOUT PREJUDICE AND WITHOUT LEAVE TO AMEND the Complaint (Dkt. No. 1) to the extent that (1) it seeks monetary relief from Defendant Sabb, and (2) asserts claims against Defendant Utica City Criminal Court, who are immune from such relief pursuant to 28 U.S.C. § 1915(e)(2)(B); and it is further respectfully
RECOMMENDED that the Court DISMISS WITH PREJUDICE AND WITHOUT LEAVE TO AMEND the Complaint (Dkt. No. 1) to the extent that it seeks to pursue criminal charges against Defendant Sabb, pursuant to 28 U.S.C. § 1915(e)(2)(B); and it is further respectfully
RECOMMENDED that the Court DISMISS WITH LEAVE TO AMEND the Complaint (Dkt. No. 1) to the extent that it alleges claims pursuant to 42 U.S.C. § 1983 against Defendants Utica Police Department, Elizabeth/Alyssa, and Frank, for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B); and it is further respectfully
ORDERED that the Clerk of the Court shall file a copy of this order, report, and recommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules.
The Clerk shall also provide Plaintiff with copiesotanunreporteaaecisionscitecinerem in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed.R.Civ.P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2dCir.1989)
If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(C).