Plaintiff commenced this action on December 4, 2024, by filing a complaint together with an application to proceed in forma pauperis. (“IFP). (Dkt. Nos. 1, 2). On November 22, 2024, Chief United States District Court Judge Brenda K. Sannes administratively closed this matter because plaintiff failed to pay the appropriate filing fee. (Dkt. No. 3). On December 6, 2024, plaintiff filed an amended complaint (Dkt. No. 4) but failed to pay the filing fee or submit a completed and signed IFP application. On December 17, 2024, plaintiff filed a second amended complaint (Dkt. No. 5) together with a properly completed IFP application (Dkt. No. 6). On December 26, 2024, plaintiff filed a third amended complaint. (Dkt. No. 10). On January 2, 2025, plaintiff filed a fourth amended complaint (“Fourth Amended Complaint”). (Dkt. No. 11). The Clerk has sent to the court for review plaintiff's Fourth Amended Complaint, together with his application to proceed in forma pauperis (“IFP”) (Dkt. Nos. 6, 11).

I. IFP Application

Plaintiff declares in his IFP application that he is unable to pay the filing fee. (Dkt. No. 6). After reviewing his application, this court finds that plaintiff is financially eligible for IFP status.

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. See 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. See Neitzke, 490 U.S. at 327; see also 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. See 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 Ashcroft, 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)). The court will now turn to a consideration of plaintiff's complaint under the above standards.

II. Complaint

Plaintiff's Fourth Amended Complaint purports to allege claims arising under 42 U.S.C. § 1983 against Onondaga County District Attorney William Fitzpatrick, Syracuse City Court Judge Doherty, assigned trial counsel Kenneth Christopher, and Ann Usborne (In-House ACP Mitigation Specialist) concerning their involvement in an unrelated criminal action commenced against plaintiff. Given who the defendants are and the immunity that three of them are afforded, the court does not feel compelled to provide a lengthy recitation of the operative facts alleged by plaintiff. Simply stated, the Fourth Amended Complaint alleges claims predicated on violations of plaintiff's Fifth, Sixth, and Fourteenth Amendment rights.

III. Judge Doherty

Syracuse City Court Judge Doherty is immune from suit and the Fourth Amended Complaint must therefore be dismissed with prejudice. The Second Circuit has ruled that “the New York State Unified Court System is unquestionably an arm of the State, and is entitled to Eleventh Amendment sovereign immunity.” Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009). Similarly, judges within the New York State Unified Court System are entitled to Eleventh Amendment immunity to the extent they are sued in their official capacity. See Aron v. Becker, 48 F.Supp.3d 347, 366 (N.D.N.Y. 2014) (dismissing claim against a Delaware County judge on sovereign immunity grounds). Accordingly, plaintiff cannot maintain his claims against Judge Doherty in her official capacity and the Fourth Amended Complaint should be dismissed with prejudice and without leave to amend.

The Fourth Amended Complaint against Judge Doherty, to the extent it alleges any claims in her personal capacity, is subject to dismissal on judicial immunity grounds. See McNair v. Utica Police Dep't, 6:23-CV-699 (DNH/ATB), 2023 WL 4935993, at *3 (N.D.N.Y. June 26, 2023), report and recommendation adopted, No. 6:23-CV-699, 2023 WL 4931609 (N.D.N.Y. Aug. 1, 2023). It is well settled that judges have absolutely immunity for their judicial acts performed in their judicial capacities. See Mireles v. Waco, 502 U.S. 9, 11 (1991); see also Shtrauch v. Dowd, 651 Fed.Appx. 72, 73-74 (2d Cir. 2016) (“Generally, ‘acts arising out of, or related to, individual cases before the judge are considered judicial in nature'”) (quoting Bliven v. Hunt, 579 F.3d 204, 210 (2d Cir. 2009)). “Judicial immunity applies even when the judge is accused of acting maliciously or corruptly.” Coon v. Merola, No. 1:19-CV-394 (DNH/ATB), 2019 WL 1981416, at *3 (N.D.N.Y. Apr. 8, 2019) (citing Imbler v. Pachtman, 424 U.S. 409, 419 n.12, (1976))), report and recommendation adopted, 2019 WL 1978595 (N.D.N.Y. May 3, 2019).

“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.'” Id. (quoting Mireles, 502 U.S. at 11-12). Here, plaintiff fails to plausibly allege that Judge Doherty was acting outside of her judicial capacity or in the absence of jurisdiction. The Fourth amended complaint should therefore be dismissed against Judge Doherty in her individual capacity with prejudice and without leave to amend.

IV. District Attorney William Fitzpatrick

The court recommends that the Fourth Amended Complaint be dismissed with prejudice and without leave to amend as against district attorney (“DA”) William Fitzpatrick. The doctrine of absolute immunity applies broadly to shield a prosecutor from liability for money damages in a § 1983 lawsuit, even when the result may be that a wronged plaintiff is left without an immediate remedy. See Anilao v. Spota, 27 F.4th 855, 863-64 (2d Cir. 2022) (citing Imbler v. Pachtman, 424 U.S. 409, 427 (1976)). In Anilao, the Second Circuit explained:

Our cases make clear that prosecutors enjoy “absolute immunity from § 1983 liability for those prosecutorial activities intimately associated with the judicial phase of the criminal process.” Barr v. Abrams, 810 F.2d 358, 361 (2d Cir. 1987)(quotation marks omitted). The immunity covers “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)). For example, a prosecutor enjoys absolute immunity when determining which offenses to charge, initiating a prosecution, presenting a case to a grand jury, and preparing for trial. See id.; Imbler, 424 U.S. at 431, 96 S.Ct. 984 (concluding that a prosecutor is absolutely immune from a § 1983 suit for damages based on his “initiating a prosecution and . . . presenting the State's case”). For that reason, we have held that absolute immunity extends even to a prosecutor who “conspir[es] to present false evidence at a criminal trial. The fact that such a conspiracy is certainly not something that is properly within the role of a prosecutor is immaterial, because the

immunity attaches to his function, not to the manner in which he performed it.” Dory, 25 F.3d at 83 (cleaned up).

Id. at 864; see also Pinaud v. County of Suffolk, 52 F.3d 1139, 1149 (2d Cir.1995) (holding that absolute prosecutorial immunity protects a prosecutor for advocacy in connection with a bail application).

“By contrast, prosecutors receive only qualified immunity when performing ‘administrative duties and those investigatory functions that do not relate to an advocate's preparation for the initiation of a prosecution or for judicial proceedings.'” Simon v. City of New York, 727 F.3d 167, 172 (2d Cir. 2013) (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993)). “Investigation, arrest, and detention have historically and by precedent been regarded as the work of police, not prosecutors, and they do not become prosecutorial functions merely because a prosecutor has chosen to participate.” Id. (interior quotation marks and citations omitted); see Giraldo v. Kessler, 694 F.3d 161, 166 (2d Cir. 2012) (“‘[A]ctions taken as an investigator enjoy only qualified immunity.'”) (quoting Zahrey v. Coffey, 221 F.3d 342, 346 (2d Cir. 2000)). “Under a functional approach, actions are not shielded by absolute immunity merely because they are performed by a prosecutor. ‘A prosecutor's administrative duties and those investigatory functions that do not relate to an advocate's preparation for the initiation of a prosecution or for judicial proceedings are not entitled to absolute immunity.'” Giraldo, 694 F.3d at 166 (quoting Buckley, 509 U.S. at 273).

There are no allegations in the Fourth Amended Complaint that DA Fitzpatrick engaged in any activities that would fall outside the framework of absolute immunity. The Fourth Amended Complaint should therefore be dismissed with prejudice as against DA Fitzpatrick without leave to amend.

V. Kenneth M. Christopher

A claim for relief under 42 U.S.C. § 1983 must allege facts showing that the defendant acted under the color of a state “statute, ordinance, regulation, custom or usage.” 42 U.S.C. § 1983. Thus, to state a claim under § 1983, a plaintiff 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). Private parties are generally not state actors and are therefore not usually liable under § 1983. See Sykes v. Bank of Am., 723 F.3d 399, 406 (2d Cir. 2013) (quoting Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001)); see also Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir. 2002) (“[T]he United States Constitution regulates only the Government, not private parties . ..”) (internal quotation marks and citation omitted).

With respect to defendant Kenneth Christopher, who appears to have been plaintiff's defense attorney in the relevant criminal proceeding until recently replaced by attorney Mike Kasmarek, “it 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, No. 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”)); see also Benjamin v. Branden, No. 21-CV-4927, 2022 WL 1092681, at *2 (E.D.N.Y. Apr. 12, 2022) (collecting cases). It is also axiomatic that retained counsel is not a state actor. See Polk County v. Dodson, 454 U.S. 312, 318-19 (1981). “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, No. 02-CV-4183, 2002 WL 31528632, at *3 (E.D.N.Y. Aug. 16, 2002) (citation omitted).

Accordingly, the court recommends that the Fourth Amended Complaint as against Kenneth Christopher be dismissed with prejudice and without leave to amend.

VI. Ann Usborne

“It is well settled that to state a civil rights claim under § 1983, a complaint must contain specific allegations of fact which indicate a deprivation of constitutional rights; allegations which are nothing more than broad, simple, and conclusory statements are insufficient to state a claim under § 1983.” Alfaro Motor, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987) (citations omitted).

Plaintiff's Fourth Amended Complaint falls short of the requisite pleading requirement and does not allege that Ms. Usborne deprived him of a constitutional right. Rather, plaintiff alleges that Ms. Usborne acted in concert with DA Fitzpatrick, Kenneth Christopher and Judge Doherty to “recharge” plaintiff for murder (Fourth Amended Compl., pg. 14), that she “refused to provide a business card” to him, that Ms. Usborne “‘false promised' the removal of Kenneth M. Christopher” (Fourth Amended Compl., pg. 15), and that she is “allowing” Kenneth Christopher to remain as “assigned trial counsel.” (Id.). The court therefore recommends that the Fourth Amended Complaint be dismissed as to Ann Usborne without prejudice and with leave to amend.

VI. Opportunity to Amend

Generally, before the court dismisses a pro se complaint or any part of the complaint sua sponte, the court should afford the plaintiff the opportunity to amend at least once; however, leave to re-plead may be denied where any amendment would be futile. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). Futility is present when the problem with plaintiff's causes of action is substantive such that better pleading will not cure it. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation omitted).

Based on plaintiff's claims, and more specifically, who the defendants are, this court does not find that there is any way plaintiff could amend his allegations to cure the defects in his Fourth Amended Complaint which would allow him to sue DA Fitzpatrick, Judge Doherty or Kenneth Christopher. The court therefore recommends dismissal of the Fourth Amended Complaint against these individuals with prejudice and without leave to amend. The court will, however, recommend that plaintiff be granted leave to amend his pleading with respect to Ann Usborne.

WHEREFORE, based on the findings above, it is

RECOMMENDED, that plaintiff's motion to proceed IFP (Dkt. No. 6) be 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 she may incur in the future regarding this action, including but not limited to copying and/or witness fees.

RECOMMENDED, that the District Court DISMISS PLAINTIFF'S FOURTH AMENDED COMPLAINT WITH PREJUDICE against District Attorney William Fitzpatrick, Judge Mary Anne Doherty, and Kenneth M. Christopherfor failure to state a claim, 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. See 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 the District Court DISMISS PLAINTIFF'S FOURTH AMENDED COMPLAINT WITHOUT PREJUDICE against Ann Usborne with leave to amend, and it is further

RECOMMENDED, that if the District Judge adopts this Order and ReportRecommendation, plaintiff be given thirty (30) days from the date of the District Judge's order, within which to submit a proposed amended complaint to the court for its consideration, and that plaintiff be advised that any amended pleading must be a COMPLETE PLEADING, WHICH WILL SUPERCEDE THE FOURTH AMENDED COMPLAINT, and that plaintiff must include all the remaining facts and causes of action in the amended complaint. No facts or claims from the Fourth Amended Complaint may be incorporated by reference, and it is

RECOMMENDED, that if the District Court adopts this Order and ReportRecommendation, and plaintiff files a proposed amended complaint, the proposed pleading be returned to me for review, and it is

ORDERED, that while plaintiff may file objections to this Order and ReportRecommendation, before plaintiff submits any amended pleading, he should wait for the District Court to rule on the above Orders and Recommendations, and it is further

ORDERED, that plaintiff's December 19, 2024 letter request (Dkt. No. 9) requesting a blank IFP form and inmate authorization form be deemed moot, and it is further

ORDERED, that the Clerk of the Court serve a copy of this Order and ReportRecommendation 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. Sec'y of Health and Hum. Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72.

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Seay v. Christopher

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Seay v. Christopher

Opinion

Seay v. Christopher

Seay v. Christopher

Case Details

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