Opinion
3:23-cv-00263-DNH-TWD
07-06-2023
QUINTIN L. WILSON, Plaintiff, v. SGT. DANIEL FLANDERS et al., Defendants.
QUINTIN L. WILSON Plaintiff, pro se
QUINTIN L. WILSON Plaintiff, pro se
ORDER AND REPORT-RECOMMENDATION
THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
On February 28, 2023, Quinton L. Wilson (“Plaintiff”) commenced this pro se action against Sgt. Daniel Flanders, Judge Dooley, Judge Joseph F. Cawley, Jr., Alexander Czbeniak, and Attorney Christopher D. Grace (collectively “Defendants”) by filing a form-complaint pursuant 42 U.S.C. § 1983 along with an application to proceed in forma pauperis (“IFP”). (Dkt. Nos. 1, 4.) The complaint tenuously alleged Judge Dooley, Judge Cawley, Czebiniak, and Grace violated his due process, speedy trial, Sixth Amendment, Eighth Amendment, and Fourteenth Amendment rights. (Dkt. No. 1 at 1-2; Dkt. No. 1-5 at 2-3.) Plaintiff also loosely alleged a Fourth Amendment excessive force claim against Sgt. Flanders. (Dkt. No. 1 at 1; Dkt. No. 1-5 at 2.)
By Order and Report-Recommendation issued May 4, 2023, (the “R&R”), the undersigned granted Plaintiff's IFP application for purposes of initial review, reviewed the sufficiency of the complaint in accordance with 28 U.S.C. § 1915(e)(2)(B), and recommended Plaintiff's claims against Judge Dooley, Judge Cawley, and Czebiniak be dismissed with prejudice and without leave to amend and the remaining claims against Sgt. Flanders and Grace be dismissed with leave to amend. (Dkt. No. 10.) On May 17, 2023, the Hon. David N. Hurd, United States District Court Judge, adopted the R&R in its entirety. (Dkt. No. 12.)
Prisoners are not exempt from paying the full filing fee even when they have been granted permission to proceed IFP. See 28 U.S.C. § 1915(b)(1). Additionally, Plaintiff will still be required to pay fees that he may incur in this action, including copying and/or witness fees.
On June 1, 2023, Plaintiff filed an amended complaint reasserting claims against Sgt. Flanders and Grace. (Dkt. No. 13.) For the reasons discussed below, the undersigned recommends the Court dismiss Plaintiff's Fourth Amendment claims brought pursuant to 42 U.S.C. § 1983 for unreasonable search and seizure, excessive force, false arrest, and false imprisonment against Sgt. Flanders with leave to amend. (See Dkt. No. 13.) The undersigned further recommends that the Court dismiss Plaintiff's claims against Grace without leave to amend. See id.
II. SUFFICIENCY OF THE AMENDED COMPLAINT
A. Legal Standard
“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). Similarly, under 28 U.S.C. § 1915A, a court must review any “complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity” and must “identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint . . . is frivolous, malicious, or fails to state a claim upon which relief may be granted; or . . . seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). Thus, it is the Court's responsibility to determine whether Plaintiff may properly maintain a complaint before permitting it to proceed further.
B. Summary of the Amended Complaint
Plaintiff lists the following claims against Sgt. Flanders: “4th Amendment unreasonable searches and seizures,” “Use of Excessive Force,” and “Illegal Detainment.” (Dkt. No. 13 at 2.) He alleges on June 1, 2021, Sgt. Flanders and another officer arrived at Plaintiff's house in Binghamton, NY. Id. at 2. Plaintiff asked if they had a warrant to which they responded “no.” Id. Plaintiff asked them to leave and get a warrant. Id. When he stood up to go into his house, Sgt. Flanders and his partner at the time “assaulted” Plaintiff. Id. Plaintiff claims this use of force “caused ankle to swell, and bruised wrist.” Id. Further, when Plaintiff arrived at the police station, he “asked to see Probable Cause.” Id. He was told “we don't have it the District Attorney has it.” Id. He was released 90 days later on a N.Y. Crim. Proc. Law § 190.80 motion. See N.Y. Crim. Proc. Law § 190.80 (McKinney). Id.
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.
N.Y. Crim. Proc. Law § 190.80 provides “Upon application of a defendant who on the basis of a felony complaint has been held by a local criminal court for the action of a grand jury, and who, at the time of such order or subsequent thereto, has been committed to the custody of the sheriff pending such grand jury action, and who has been confined in such custody for a period of more than forty-five days, . . . without the occurrence of any grand jury action or disposition pursuant to subdivision one, two or three of section 190.60, the superior court by which such grand jury was or is to be impaneled must release him on his own recognizance.”
Plaintiff lists the following claims against Christopher D. Grace: “Ineffectiveness of Counsel,” “Right to Due Process,” “Speedy Trial,” and “Bail - Punishment.” Id. Plaintiff alleges since November 22, 2021, Grace has not represented Plaintiff “to the best of his ability.” Id. Plaintiff has asked Grace to “File motions on [his] behalf VIA Letters, Text messages, and phone calls but all he would tell [Plaintiff] is that these things don't pertain to [Plaintiff].” Id. at 2-3. Plaintiff claims he tried to fire Grace but Judge Cawley “let him stay.” Id. at 3. Plaintiff alleges he asked Grace to get him lower bail “but once again he refused.” Id. Plaintiff asserts his speedy trial rights were violated while he awaited trial in Broome County Jail for over a year. Id. He brought up this concern to Grace but Plaintiff “was ignored.” Id. Plaintiff's trial took place in March 2023. Id.
Previously, Grace had told Plaintiff about a plea deal he was offered, but Plaintiff “declined.” Id. However, according to Plaintiff, the plea deal “read for the record” was not the same plea deal Grace had conveyed to Plaintiff. Id. Plaintiff “was scared” the District Attorney “was still gonna try to give [him] the deal that was put on the record.” Id. However, he “was never offered another plea and was Forced to trial.” Id.
At Plaintiff's trial, “There was New Evidence that was told by a witness to the District Attorney who told Judge Cawley and Mr. Grace but he told [Plaintiff] and Failed to put it on the record and this peice of information could've made the Jury's decisions different From what it was.” Id. Plaintiff also asked Mr. Grace to “ask certain questions” but Mr. Grace refused because “that would be badgering the victim.” Id. Plaintiff claims “these are things that could've helped clear [his] name.” Id. Plaintiff does not request any specific relief in his amended complaint. (See Dkt. No. 13.)
In his original complaint, Plaintiff requested $1,000,000 in monetary damages. (Dkt. No. 1 at 2; Dkt. No. 1-1 at 1.)
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. Claims Against Attorney Christopher D. Grace
As previously discussed on review of the original complaint, “private individuals . . . cannot be sued under 42 U.S.C. § 1983 absent a plausible allegation that they acted under color of state law.” Basile v. Connolly, 538 Fed.Appx. 5, 7 (2d Cir. 2013). Private conduct is simply beyond the reach of Section 1983 “no matter how discriminatory or wrongful that conduct may be.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999) (internal quotations and citations omitted). A conclusory allegation that a private individual acted in concert with a state actor does not constitute a plausible allegation that the private individual acted under color of state law. See Ciambriello v. Cty. of Nassau, 292 F.3d 307, 324 (2d Cir. 2002); see, e.g., Asensio v. DiFiore, No. 18-CV-10933 (RA), 2019 WL 4392743, at *8 (S.D.N.Y. Sept. 13, 2019) (concluding the plaintiff's “conclusory allegations” of conspiracy were “plainly insufficient to support a finding that [the defendant] has acted under color of state law.”); Bornschein v. Herman, 304 F.Supp.3d 296, 301 (N.D.N.Y. 2018) (same). Moreover, attorneys, whether court appointed or privately retained, are generally not state actors for purposes of Section 1983. See, e.g., Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981); see also Rodriguez v. Weprin, 116 F.3d 62, 65-66 (2d Cir. 1997) (“[I]t is well-established that court-appointed attorneys performing a lawyer's traditional functions as counsel to [a] defendant [in a criminal proceeding] do not act ‘under color of state law' and therefore are not subject to suit under 42 U.S.C. § 1983.”); see also Dkt. No. 10 at 8-10.
Here, the amended complaint has not cured the deficiencies identified in the R&R. As such, Plaintiff's Section 1983 claims against Grace are inadequately pled because he has failed to allege Grace acted under color of state law. See 42 U.S.C. § 1983; Velez, 401 F.3d at 84. The undersigned accordingly recommends dismissing all of Plaintiff's Section 1983 claims against Grace without leave to amend on the grounds that they are inadequately pled and frivolous. See 28 U.S.C. § 1915(e)(2)(B), 1915A(b)(1); see also Livingston, 141 F.3d at 437; Walker v. Rivera, No. 1:22-CV-560 (DNH/TWD), 2022 WL 2341544, at *3 (N.D.N.Y. June 29, 2022), report and recommendation adopted, No. 1:22-CV-560, 2022 WL 2805477 (N.D.N.Y. July 18, 2022).
Grace is a private individual who represented Plaintiff during state criminal proceedings.
2. Claims Against Sgt. Flanders
i. Fourth Amendment Excessive Force
“The Fourth Amendment's protection against unreasonable seizures prohibits the use of excessive force by police officers in arresting suspects .... To establish a Fourth Amendment excessive force claim, Plaintiff must show that the force used by the officer was ‘objectively unreasonable.'” Correa v. McLeod, No. 3:17CV1059 (VLB), 2017 WL 2962884, at *3 (D. Conn. July 11, 2017) (citations omitted). Determining whether the force is “reasonable” under the Fourth Amendment requires a careful balancing of “the nature and quality of the intrusion on the individual's Fourth Amendment interests” against the governmental interests at stake. Graham v. Connor, 490 U.S. 386, 396 (1989). A court shall consider “the facts and circumstances of each particular case, including the severity of the crime at issue, whether the [arrestee] poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. However, “‘[n]ot every push or shove' amounts to a Fourth Amendment violation. Indeed, a ‘de minimis use of force will rarely suffice to state a Constitutional claim.'” Acosta v. City of New York, No. 11 Civ. 856(KBF), 2012 WL 1506954, at *10 (S.D.N.Y. Apr. 26, 2012) (citing Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 2005)).
Moreover, a plaintiff must allege that he sustained an injury from the alleged excessive force. Wims v. N.Y.C. Police Dep't, No. 10 Civ. 6128, 2011 WL 2946369, at *4 (S.D.N.Y. July 20, 2011). “However, an individual does not need to sustain a severe injury to maintain a claim.” Id. (citing Robison v. Via, 821 F.2d 913, 924 (2d Cir. 1987) (“If the force used was unreasonable and excessive, the plaintiff may recover even if the injuries inflicted were not permanent or severe.”)).
In the amended complaint, Plaintiff alleges only that Sgt. Flanders “assaulted” him resulting in a swollen ankle and bruised wrist. (Dkt. No. 13 at 2.) Rule 8 of the Federal Rules of Civil Procedure requires a “‘short and plain statement'” of a claim, showing that “‘the pleader is entitled to relief.'” Whitfield v. Johnson, 763 Fed.Appx. 106, 107 (2d Cir. 2019) (quoting Fed.R.Civ.P. 8(a)). Each statement must be “‘simple, concise, and direct,' and must give ‘fair notice of the claims asserted.'” Id. (quoting Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995)). “A complaint may be dismissed under Rule 8 if it is ‘so confused, ambiguous, or otherwise unintelligible that its true substance, if any, is well disguised.'” Id. As it currently stands, Plaintiff's amended complaint does not describe the alleged use of excessive force with any sufficient detail beyond being “assaulted” by Sgt. Flanders. (See Dkt. No. 13 at 2.) Thus, the undersigned recommends dismissal for failure to state a claim. However, mindful of the Second Circuit's direction to provide special solicitude to pro se plaintiffs, the Court recommends affording Plaintiff a final opportunity to amend this claim. See Pearson v. Reid-Robinson, 632 Fed.Appx. 19, 19 (2d Cir. 2016). Should Plaintiff be permitted leave to amend, he must describe the alleged excessive force in greater detail.
ii. Remaining Claims
Plaintiff's complaint loosely alleges Fourth Amendment claims for unreasonable search and seizure, false arrest, and false imprisonment against Sgt. Flanders. At this juncture, however, the Court is unable to determine whether these claims are barred by Heck v. Humphrey, 512 U.S. 477, 487 (1994). Heck provides when a claim under Section 1983 calls into question the validity of an underlying conviction, a district court must dismiss the claim, unless the conviction has been invalidated. 512 U.S. at 487. Although it is clear that Plaintiff is confined to Broome County Jail, he does not specify whether his current confinement is directly related to the underlying claim, nor the status of any relevant criminal proceeding. (Dkt. No. 13 at 3.) If any criminal action relative to Plaintiff's allegations has since terminated, in order to recover damages for the purported unreasonable search and seizure, false arrest, and false imprisonment claims, he must set forth that any convictions have been resolved in his favor. Because Plaintiff has not alleged sufficient facts in this regard, the Court cannot determine whether these claims may survive initial review. Thus, these claims should be dismissed without prejudice, allowing Plaintiff the opportunity to plead the status of any related underlying criminal proceeding.
To state false arrest and false imprisonment claims under New York law, a plaintiff must allege that: “(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.” Liranzo v. United States, 690 F.3d 78, 95 (2d Cir. 2012). An arrest is privileged if it is based on probable cause. Jenkins v. City of New York, 478 F.3d 76, 84 (2d Cir. 2007) (“The existence of probable cause to arrest constitutes justification and is a complete defense to an action for false arrest.”) (citations and quotations omitted).
To the extent Plaintiff should amend his complaint to show that his claims are not barred by Heck, it remains incumbent on him to allege more detailed facts plausibly suggesting he was subject to unreasonable search and seizure, false arrest, and false imprisonment in violation of his constitutional rights. See Fed.R.Civ.P. 8; Whitfield, 763 Fed.Appx. at 107. Here, Plaintiff does not describe with any sufficient detail the circumstances leading to his purported arrest, the charges ultimately brought against him as a result of any arrest, or the status of his criminal proceedings. (See Dkt. No. 13.) Therefore, as it currently stands, Plaintiff's complaint fails to provide fair notice of the claims he attempts to assert and is replete with conclusory statements and “naked assertions devoid of further factual enhancement” with respect to his claims. Iqbal, 556 U.S. at 678 (internal citations and alterations omitted).
The Second Circuit has held that “Heck bars a § 1983 claim based on an extant conviction, but it has no apparent application to an anticipated future conviction.” Stegemann v. Rensselaer Cty. Sheriff's Off., 648 Fed.Appx. 73, 76 (2d Cir. 2016) (finding that since plaintiff's criminal trial was still ongoing, civil relief was not categorically barred by the favorable termination rule of Heck). Thus, if Plaintiff's criminal action in this case is still pending, Heck would be inapplicable.
ACCORDINGLY, it is hereby
RECOMMENDED that all of Plaintiff's claims against Attorney Christopher D. Grace be DISMISSED WITHOUT LEAVE TO AMEND; and it is further
RECOMMENDED that Plaintiff's excessive force, unreasonable search and seizure, false arrest, and false imprisonment claims against Sgt. Flanders be DISMISSED WITH LEAVE TO AMEND; and it is further
ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report Recommendation, along with copies of the unpublished 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), Plaintiff has fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court.
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).
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).
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