Opinion
18-CV-5373 (MKB)
02-20-2020
TAFARI E. HARVEY, Plaintiff, v. QUEENS COUNTY DISTRICT ATTORNEY, Defendant.
NOT FOR PUBLICATION MEMORANDUM & ORDER MARGO K. BRODIE, United States District Judge:
Plaintiff Tafari E. Harvey, proceeding pro se, and currently incarcerated at the Marcy Correctional Facility, brings this pro se action pursuant to 42 U.S.C. § 1983 against Defendant Queens County District Attorney. The Court grants Plaintiff's application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. For the reasons discussed below, the Court dismisses the Complaint and grants Plaintiff thirty (30) days to file an amended complaint.
I. Background
The Court assumes the truth of the factual allegations in the Complaint for the purposes of this Memorandum and Order. Plaintiff's claims arise from his state court criminal proceeding in Queens County. (See generally Compl.) Plaintiff names the "Queens County Court District Attorney," as the only Defendant in the caption of the Complaint, but in the body of the Complaint, Plaintiff complains about "my former criminal judge in my trial and my attorney Mr. Silverman." (Id. at 4.) Plaintiff further complains about "wrongful arrest from the judge in my trial," and argues that "[t]he weapon found in the rental apartment" in his house was not his weapon. (Id.) In addition, Plaintiff contends that his "original attorney Mr. Warren Silverman" violated his rights in court "by not allowing my witnesses to testify." (Id.) Plaintiff does not state the relief he seeks. (Id. at 5.)
II. Discussion
a. Standard of review
A complaint must plead "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 is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Although all allegations contained in the complaint are assumed to be true, this tenet is "inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. In reviewing a pro se complaint, the Court must be mindful that the plaintiff's pleadings should be held "to less stringent standards than formal pleadings drafted by lawyers." Hughes v. Rowe, 449 U.S. 5, 9 (1980) (citation and internal quotation marks omitted); Erickson v. Pardus, 551 U.S. 89, 94 (2007) (same); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that even after Twombly, courts "remain obligated to construe a pro se complaint liberally"). Nevertheless, the Court is required to dismiss sua sponte an in forma pauperis action if the Court determines it "(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); see also Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).
b. Claim against the Queens County District Attorney
To the extent that Plaintiff alleges claims against the Office of the Queens County District Attorney, these claims are dismissed, as a district attorney's office is not a suable entity. See, e.g., Barreto v. Cty. of Suffolk, 455 F. App'x 74, 76 (2d Cir. 2012) (finding a district attorney's office is "not an entity capable of being sued" (citing Ying Jing Gan v. City of New York, 996 F.2d 522, 535-36 (2d Cir. 1993)).
Moreover, the Queens County District Attorney is immune from prosecution. Prosecutors are entitled to absolute immunity for their acts that are intimately associated with the judicial phase of the criminal process and their role as advocates. See Van de Kamp v. Goldstein, 555 U.S. 335, 341 (2009) ("[P]rosecutorial actions that are intimately associated with the judicial phase of the criminal process . . . are absolutely immune from liability in § 1983 lawsuits."); Ogunkoya v. Monaghan, 913 F.3d 64, 69 (2d Cir. 2019) ("Absolute immunity bars § 1983 suits against prosecutors for their role 'in initiating a prosecution and in presenting the State's case.'" (quoting Imbler v. Pachtman, 424 U.S. 409, 431 (1976)); Santulli v. Russello, 519 F. App'x 706, 711 (2d Cir. 2013) ("It is well settled that a prosecutor is entitled to absolute immunity for acts undertaken pursuant to her traditional function as an advocate in the prosecutorial process."). Such immunity attaches "regardless of any allegations that [the prosecutor's] actions were undertaken with an improper state of mind or improper motive." Shmueli v. City of New York, 424 F.3d 231, 237 (2d Cir. 2005); see also Giraldo v. Kessler, 694 F.3d 161, 165 (2d Cir. 2012) (same). Because Plaintiff does not allege that the Queens County District Attorney acted outside the scope of his or her duties, the Queens County District Attorney is immune from prosecution. See Van de Kamp, 555 U.S. at 341 ("[P]rosecutorial actions that are intimately associated with the judicial phase of the criminal process . . . are absolutely immune from liability in § 1983 lawsuits.").
Further, Plaintiff does not allege any personal involvement on the part of the Queens County District Attorney in the alleged violation of any constitutional right, and because there is no supervisory liability under section 1983, his claim fails. See, e.g., Iqbal, 556 U.S. at 676 ("Because vicarious liability is inapplicable to Bivens and [section] 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution."); Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003) ("'Absent some personal involvement by [the supervisory official] in the allegedly unlawful conduct of his subordinates,' he cannot be liable under section 1983." (alteration in original) (quoting Gill v. Mooney, 824 F.2d 192, 196 (2d Cir. 1987))).
c. Claims against the trial Judge
Plaintiff's claim against the trial judge who presided over his criminal trial is barred by absolute immunity.
Judges have absolute immunity for acts performed in their judicial capacities. Mireles v. Waco, 502 U.S. 9, 11 (1991) (upholding applicability of judicial immunity in section 1983 actions); Burdick v. Town of Schroeppel, 717 F. App'x 92, 93 (2d Cir. 2018) ("Judges acting in their judicial capacity are absolutely immune from suit, even where the plaintiff asserts constitutional violations under § 1983." (citing Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir. 2009)); see also Shtrauch v. Dowd, 651 F. App'x 72, 73 (2d Cir. 2016) ("It is well settled that judges generally have absolute immunity from suits for money damages for their judicial actions." (quoting Bliven, 579 F.3d at 209)). "Absolute judicial immunity applies even if the judge allegedly acted in bad faith or with malice." Burdick, 717 F. App'x at 93 (citing Bliven, 579 F.3d at 209); Jackson v. Ramirez, 691 F. App'x 45, 46 (2d Cir. 2017) (same); Whitnum v. Emons, 683 F. App'x 71, 72 (2d Cir. 2017) (same). Immunity may only be overcome where (1) the challenged acts were not taken in the judge's judicial capacity or (2) the acts, "though judicial in nature, [were] taken in the complete absence of all jurisdiction." Burdick, 717 F. App'x at 93 (citing Mireles, 502 U.S. at 12; see also Chris H. v. New York, 740 F. App'x 740, 741 (2d Cir. 2018) ("First, a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge's judicial capacity. Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction." (quoting Mireles, 502 U.S. at 12)).
Plaintiff's claims against the trial judge relate to the judge's judicial acts performed in his or her capacity as the assigned judge in Plaintiff's state criminal court case. Plaintiff has not alleged any facts to suggest that the judge took any actions other than in his or her judicial capacity. Accordingly, the Court dismisses Plaintiff's claim against the trial judge.
d. Claims against Plaintiff's defense attorney
Likewise, to the extent Plaintiff seeks to bring a claim against his criminal defense attorney, Mr. Silverman, he may not do so because Plaintiff's lawyer, as a private person, is beyond the scope of section 1983 liability.
Under section 1983, individuals may bring a private cause of action against persons "acting under color of state law" to recover money damages for deprivations of their federal or constitutional rights. Matusick v. Erie Cty. Water Auth., 757 F.3d 31, 55 (2d Cir. 2014) (quoting 42 U.S.C. § 1983). To establish a viable section 1983 claim, a plaintiff must show "the violation of a right secured by the Constitution and laws of the United States" and that "the alleged deprivation was committed by a person acting under color of state law." Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87-88 (2d Cir. 2015) (citations and internal quotation marks omitted). Section 1983 "constrains only state conduct, not the 'acts of private persons or entities.'" Hooda v. Brookhaven Nat'l Lab., 659 F. Supp. 2d 382, 393 (E.D.N.Y. 2009) (quoting Rendell-Baker v. Kohn, 457 U.S. 830, 837 (1982)); see also Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999) ("[T]he under[-]color-of-state-law element of [section] 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful." (citation and internal quotation marks omitted)). Thus, a claim for relief pursuant to section 1983 must allege facts showing that the challenged conduct was "committed by a person acting under color of state law." 42 U.S.C. § 1983.
It is well established that court-appointed attorneys, including 18-B attorneys and attorneys associated with a legal aid organization, do not act under color of state law when they perform traditional functions of counsel. Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981) ("[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."); Sash v. Rosahn, 450 F. App'x. 42, 43 (2d Cir. 2011) ("[A] court appointed criminal defense attorney does not act under color of state law when representing a client" (citing Rodriguez v. Weprin, 116 F.3d 62, 65-66 (2d Cir. 1997))); Garcia v. City of N.Y., No. 13-CV-4655, 2013 WL 153756, at *3 (E.D.N.Y. Jan. 14, 2013) (Legal Aid Society attorney was not acting under color of state law when he represented the plaintiff in criminal court); Pecou v. Hirschfeld, No. 07-CV-5449, 2008 WL 957919, at *2 (E.D.N.Y. Apr. 3, 2008) ("Court-appointed attorneys do not act under color of state law merely by virtue of their appointment." (citing Polk Cty., 454 U.S. at 325)).
Plaintiff has failed to plead any facts that would support a finding that his criminal defense attorney was acting under color of state law at the time of the alleged civil rights violations. Accordingly, the Court dismisses Plaintiff's claim against his criminal attorney.
e. Plaintiff's request to be releases from custody
Finally, because Plaintiff is incarcerated, to the extent he seeks release from prison, Plaintiff cannot utilize a section 1983 claim but must instead bring a petition for habeas corpus pursuant to 28 U.S.C. § 2254. See Preiser v. Rodriguez, 411 U.S. 475, 499 (1973) ("[W]hen a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.").
Similarly, to the extent Plaintiff seeks damages and challenges his current incarceration, he must demonstrate that his conviction has been invalidated in order to pursue a section 1983 claim. See Heck v. Humphrey, 512 U.S. 477, 487 (1994) ("When a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated."); see, e.g., Geer v. Brown, No. 14-CV-6172, 2015 WL 4042166, at *4 (E.D.N.Y. July 1, 2015) (dismissing section 1983 claims by an incarcerated plaintiff because the claims could only be brought in a habeas corpus petition and the plaintiff could not establish favorable termination as required by Heck).
f. Leave to amend
In light of Plaintiff's pro se status, the Court grants Plaintiff leave to file an amended complaint within thirty (30) days of this Memorandum and Order. Plaintiff is advised that the amended complaint will completely replace the original complaint, must be captioned, "Amended Complaint," and shall bear the same docket number as this Memorandum and Order. If Plaintiff elects to file an amended complaint to allege a false arrest claim, he must allege facts that support the elements of the claim and identify defendants who personally violated his constitutional rights while acting under color of state law. Plaintiff must identify the defendants in both the caption and the body of the amended complaint. Plaintiff must also provide the dates and locations for each relevant event. Even if Plaintiff does not know the name of the individual, he may identify the individual as John or Jane Doe, along with descriptive information and place of employment. If Plaintiff fails to file an amended complaint within the time allowed, the Court will direct the Clerk of Court to enter judgment dismissing the case for the reasons stated above.
"Under New York law, 'to prevail on a claim of false arrest a plaintiff must show that (1) the defendant intended to confine him, (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.'" Nzegwu v. Friedman, 605 F. App'x 27, 29 (2d Cir. 2015) (quoting Jocks v. Tavernier, 316 F.3d 128, 135 (2d Cir. 2003)).
III. Conclusion
Accordingly, the Court dismisses the complaint for failure to state a claim. 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A. The Court grants Plaintiff leave to file an amended complaint within thirty (30) days from the entry of this Memorandum and Order. The Clerk of Court is directed to send a prisoner's civil rights complaint form to Plaintiff. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. Coppedge v. United States, 269 U.S. 438, 444-45 (1962). Dated: February 20, 2020
Brooklyn, New York
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge