Opinion
6:23-cv-1454 (GTS/TWD)
02-14-2024
ERIC LYNCH, Plaintiff, v. COUNTY OF HERKIMER, et al., Defendants.
ERIC LYNCH Plaintiff, pro se
ERIC LYNCH Plaintiff, pro se
REPORT-RECOMMENDATION AND ORDER
THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
The Clerk has sent to the Court for review a complaint submitted by pro se plaintiff Eric Lynch (“Plaintiff”) alleging Darryl Lucas, Russell Fetterman, Matthew Jacoby, the State of New York, Herkimer County District Attorney Jeffrey S. Carpenter, and the County of Herkimer violated his civil rights. Dkt. No. 1. Plaintiff, who was in the custody of New York State Department of Corrections and Community Supervision (“DOCCS”) at the Elmira Correctional Facility at the time of filing, has not paid the filing fee for this action and seeks leave to proceed in forma pauperis (“IFP”). Dkt. Nos. 4, 8.
II. IFP APPLICATION
“28 U.S.C. § 1915 permits an indigent litigant to commence an action in a federal court without prepayment of the filing fee that would ordinarily be charged.” Cash v. Bernstein, No. 09-CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010). “Although an indigent, incarcerated individual need not prepay the filing fee at the time of filing, he must subsequently pay the fee, to the extent he is able to do so, through periodic withdrawals from his inmate accounts.” Id. (citing 28 U.S.C. § 1915(b); Harris v. City of New York, 607 F.3d 18, 21 (2d Cir. 2010)).
Upon review, Plaintiff's IFP application demonstrates economic need. Dkt. No. 8. Because Plaintiff has met the statutory requirements of 28 U.S.C. § 1915(a) and has filed the inmate authorization form required in this District, he is granted permission to proceed IFP.
Although his IFP application has been granted, Plaintiff will still be required to pay fees that he may incur in this action, including copying and/or witness fees.
III. BACKGROUND
Plaintiff's claims arise from events which began on November 25, 2008. Dkt. No. 1 at 810. Plaintiff avers Defendants Jacoby and Fetterman: trespassed onto Plaintiff's property, located in Middleville, New York; opened Plaintiff's locked Ford Econoline van, located on said property; conducted a search of the van, without a warrant; and seized “plaintiff's legaly owned 30.06 rifle which was safely stored inside plaintiff's locked vehicle . . . .” Id. at 9. Later the same day, Plaintiff reported his rifle had been stolen; Fetterman informed Plaintiff he had taken the rifle; Plaintiff requested Fetterman return the rifle; and Fetterman returned Plaintiff's rifle and wrote plaintiff tickets for failing to report a take and failing to properly fill a tag for a deer management permit. Id. at 9-10.
Citations to Plaintiff's submissions will refer to the pagination generated by CM/ECF, the Court's electronic filing system.
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.
On February 25, 2009, Plaintiff filed “a Notice of Claim . . . against the State of New York setting forth the improper procedures employed by defendant's FETTERMAN and LUCAS.” Id. at 10. Thereafter, “In retaliation . . . defendant FETTERMAN commenced and engaged in a scheme to harass plaintiff and members of his family.” Id. at 11.
On April 29, 2009, Fetterman issued Plaintiff a ticket for making a false written statement. Id. at 15. Plaintiff has since requested “either a trial or dismissal of the charge . . . ” however, as of the time of filing, the charge had not been disposed of. Id.
On May 8, 2009, an unnamed New York State Department of Environmental Conservation (“DEC”) “Officer called the plaintiff on his cellular phone and informed him that they had a warrant for his arrest.” Id. at 11. “Plaintif was directed to meet defendant(s) FETTERMAN and LUCAS in the parking lot of the Town of Fairfield Court,” and when he arrived, he “demanded to see the alleged arrest warrant.” Id. at 11-12. Defendant Lucas:
[G]ot extremely irritated and begin yelling and swearing at the plaintiff . . . grabbed plaintiff, manhandled plaintiff, and placed handcuffs on the plaintiff . . . grabbed the plaintiff by his shirt, lifted him off of the ground, and then slammed the plaintiffs body onto the hood of the Department of Environmental Conservation SUV . . . Plaintiff was then dragged to defendant FETTERMAN's SUV and thrown into the backseat by defendant LUCAS.Id. at 12-13. Plaintiff further asserted “Defendant FETTERMAN stood by watching while plaintiff was being physically assaulted by defendant LUCAS.” Id. at 13. Next, Defendant Fetterman transported Plaintiff to the Town of Manheim Court where he appeared before “Justice Thompson” who “ordered the defendant(s) to release the plaintiff immediately . . . [and] never bring the plaintiff back into his court.” Id. at 14.
The Court takes judicial notice of an action Plaintiff commenced on November 21, 2012. See generally, Lynch v. New York (hereinafter, “Lynch I”), No. 6:12-CV-1757 (DNH/DEP), 2013 WL 4425129, at *1 (N.D.N.Y. Aug. 14, 2013). Plaintiff brought “a total of sixteen causes of action arising from ten separate interactions with New York State Police and/or DEC officers between November 2008 and October 2012. . . . pursuant to 42 U.S.C. § 1983 . . . .” Id. District Judge David N. Hurd dismissed Plaintiff's complaint in its entirety. See id. at *4.
IV. STANDARD OF REVIEW
Section 1915 of Title 28 requires a district court to dismiss an in forma pauperis complaint if the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1)-(2); § 1915(e)(2)(B)(i)-(iii); Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint, or portion thereof, when the Court lacks subject matter jurisdiction. See Fed.R.Civ.P. 12(h)(3).
While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citation omitted). A claim is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); see also Denton v. Hernandez, 504 U.S. 25, 33 (1992) (holding “a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible”); Livingston, 141 F.3d at 437 (“[A]n action is ‘frivolous' when either: (1) the factual contentions are clearly baseless . . . or (2) the claim is based on an indisputably meritless legal theory.”).
Additionally, when reviewing a complaint, a court may look to the Federal Rules of Civil Procedure. To survive dismissal for failure to state a claim, a complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2). This short and plain statement of the claim must be “plausible on its face.” Twombly, 550 U.S. at 570. “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). 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.” Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995) (McAvoy, C.J.) (quoting Brown v. Califano, 75 F.R.D. 497, 498 (D.D.C. 1977)).
In determining whether a complaint states a claim upon which relief may be granted, “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) (citations omitted). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
Moreover, a court should not dismiss a pro se complaint “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.” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (internal quotations and citation omitted). However, 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.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
V. DISCUSSION
Plaintiff's complaint asserts the following causes of action: (1) an excessive force claim against Defendant Lucas (Dkt. No. 1 at 15-16); (2) a failure to intervene claim against Defendant Fetterman (Dkt. No. 1 at 17); (3) a deliberate indifference claim against Defendants Lucas and Fetterman (Dkt. No. 1 at 18); (4) an illegal search and seizure claim against Defendants Jacoby and Fetterman (Dkt. No. 1 at 19-20); (5) a Second Amendment violation claim against Defendants Jacoby and Fetterman (Dkt. No. 1 at 20); (6) a state liability claim against the State of New York (Dkt. No. 1 at 20-23); (7) a claim of Due Process violations against Defendant Carpenter (Dkt. No. 1 at 23-24); and (8) a Monell claim against the County of Herkimer (Dkt. No. 1 at 24-25). For the reasons explained below, all of Plaintiff's contentions fail to state a claim upon which relief may be granted; therefore, dismissal of the complaint is warranted.
See generally, Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978).
A. Heck v. Humphrey
As previously stated, Plaintiff is currently in DOCCS custody. The Court takes judicial notice of DOCCS public administrative records stating Plaintiff is incarcerated on convictions for burglary in the first degree, attempted burglary in the first degree, and criminal mischief in the second degree.
See https://nysdoccslookup.doccs.ny.gov/ (site last visited on February 14, 2024); see also, e.g., Opperisano v. P.O. Jones, 286 F.Supp.3d 450, 453 (E.D.N.Y. 2018) (“The Court may take judicial notice of Plaintiff's DOCCS inmate lookup information ....”); DePaul v. Helmer, No. 6:10-CV-00813 (LEK), 2012 WL 967059, at *1 (N.D.N.Y. Mar. 21, 2012) (taking judicial notice of the plaintiff's conviction based on information obtained via the DOCCS Inmate Lookup search page).
While it is not clear in Plaintiff's complaint what relationship, if any, these convictions have to his claims in the instant matter, to be sure, civil lawsuits may not be used to collaterally attack criminal convictions. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). In Heck, the Supreme Court held:
[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus . . . .Id. Therefore, to the extent Plaintiff's claims could be construed as calling into question the validity of any conviction which has not been reversed, expunged, declared invalid, or called into question by a relevant authority, his claims are barred by Heck. See, e.g., Hines v. Giacona, No. 5:18-CV-0002 (GTS/TWD), 2018 WL 4610675, at *3 (N.D.N.Y. Apr. 2, 2018) (concluding the plaintiff's § 1983 claims which “would necessarily call into question the validity of his conviction” was barred by Heck v. Humphrey “unless and until such time as Plaintiffs conviction is overturned or his sentence invalidated.”) (citations omitted), report and recommendation adopted, 2018 WL 3046513 (N.D.N.Y. June 20, 2018).
B. Plaintiff's Claims against Defendants Lucas, Fetterman, and Jacoby, and the State of New York Are Barred Under the Doctrine of Res Judicata
In Lynch I, Plaintiff alleged “on November 25, 2008 . . . [DEC] Officers Russell F. Fetterman and Matthew Jacoby . . . used force to pry open the door of [Plaintiff's] truck and seize a firearm, all without a search warrant or probable cause.” Lynch I, Dkt. No. 1 at 2. Plaintiff further asserted:
[O]n May 9, 2009 . . . Officer Fetterman telephoned the Plaintiff and directed him to appear in the parking lot across the street from the
Village Courthouse in Middleville, NY as there was purportedly a warrant for the Plaintiff's arrest . . . . Plaintiff met Officer Fetterman and one DEC Officer Darryl Lucas in the parking lot. . . . Plaintiff was physically assaulted . . . . Officer Fetterman then drove Plaintiff to the Town of Manheim Court . . . . [where] the officers could not produce a warrant . . . . The justice on the bench . . . then released Plaintiff in the absence of any charge or accusatory instruments.Id. at 3. The complaint included various claims for civil rights violations under both federal and state law, including “violations of the Fourth and Fourteenth Amendments to the United States Constitution and state tort violations of assault, battery, false arrest, unlawful search and seizure and intentional infliction of emotional distress,” as well as “claims of negligent supervision of police and uniformed law enforcement officers; malicious/reckless/negligent execution of police procedures within the New York State Department of Environmental Conservation and the New York State Police.” Id. at 6-7.
On June 12, 2013, Defendants Fetterman, Jacoby, Lucas, and the State of New York filed a motion to dismiss the complaint for failure to state a claim. See Lynch I, Dkt. No. 11. Plaintiff filed no opposition to Defendants' motion and, following a hearing, Judge Hurd granted the Defendants' motion and dismissed the complaint in its entirety on August 14, 2013. Lynch I, 2013 WL 4425129, at *1, 4. As relevant here, Judge Hurd concluded the State of New York was immune from liability under the Eleventh Amendment and Plaintiff's § 1983 claims related to the November 25, 2008, and May 9, 2009, incidents were time barred. See id. at 2 (first citing Gollomp v. Spitzer, 568 F.3d 355, 365-66 (2d Cir. 2009) in support of the proposition that state governments may not be sued in federal court unless they have waived their Eleventh Amendment immunity or unless Congress has abrogated said immunity; then citing Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 225 (2d Cir. 2004) in support of the proposition that the statute of limitations applicable to claims brought under § 1983 in New York is three years).
“The doctrine of res judicata, or claim preclusion, holds that ‘a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.'” Monahan v. New York City Dep't of Corr., 214 F.3d 275, 284 (2d Cir. 2000) (quoting Allen v. McCurry, 449 U.S. 90, 94 (1980)). The doctrine precludes a party from asserting a claim in subsequent litigation where: “(1) the previous action involved an adjudication on the merits; (2) the previous action involved the [same parties] or those in privity with them; [and] (3) the claims asserted in the subsequent action were, or could have been, raised in the prior action.” Id. at 285. “A district court may dismiss an action sua sponte on res judicata grounds provided it has before it all relevant data and legal records or is in the same district where the original action was filed.” Vance v. ACCO Brands, Corp., No. 6:17-CV-0957 (GTS/TWD), 2017 WL 8751936, at *5 (N.D.N.Y. Nov. 1, 2017) (citing Salahuddin v. Jones, 992 F.2d 447, 449 (2d Cir. 1993)) (additional citations omitted), report and recommendation adopted, 2018 WL 1631312 (N.D.N.Y. Apr. 2, 2018), aff'd, No. 18-1258, 2018 WL 5603578 (2d Cir. Oct. 3, 2018).
In this case, res judicata bars Plaintiff's claims against Defendants Lucas, Fetterman, Jacoby, and the State of New York. First, Lynch I was adjudicated on the merits because “a dismissal for failure to state a claim operates as a final judgment on the merits . . . .” Garcia v. Superintendent of Great Meadow Corr. Facility, 841 F.3d 581, 583 (2d Cir. 2016) (internal quotations and citation omitted). Furthermore, Plaintiff's prior action named the State of New York, Lucas, Fetterman, and Jacoby as Defendants. See Lynch I, Dkt. No. 1 at 1.
Finally, Plaintiff's claims here concerning Fetterman, Jacoby, and Lucas' alleged conduct were, or could have been, raised in Lynch I. See Williams v. Perry, 229 F.3d 1136 (2d Cir. 2000) (Summary Order) (explaining the plaintiff's “current . . . claim could have been raised in [the prior action] if it is part of the same ‘nucleus of operative fact' or involves the same factual predicate as the claims raised in” the prior action) (citing Waldman v. Village of Kiryas Joel, 207 F.3d 105, 108 (2d Cir. 2000)). Plaintiff's claims in both actions concerned: (1) Defendant Jacoby and Fetterman's alleged actions of entering Plaintiff's Middleville property and taking possession of a firearm from Plaintiff's vehicle on November 25, 2008, compare Dkt. No. 1 at 810 with Lynch I, Dkt. No. 1 at 2-3; (2) Defendant Fetterman and Lucas' alleged actions in informing Plaintiff they had a warrant for his arrest, causing Plaintiff bodily harm, and transporting Plaintiff to the Town of Manheim Court without regard to Plaintiff's injuries on May 8 or 9, 2009, compare Dkt. No. 1 at 11-14 with Lynch I, Dkt. No. 1 at 3; and (3) the State of New York's alleged actions and omissions which lead to, inter alia, the aforementioned two incidents, compare Dkt. No. 1 at 20-23 with Lynch I, Dkt. No. 1 at 8. Because Plaintiff's claims in both complaints are derived from the same facts, even those claims which were not raised in Lynch I could have been, therefore, the claims are barred here. L-Tec Electronics Corp. v. Cougar Electronic Org., Inc., 198 F.3d 85, 88 (2d Cir. 1999) (holding the plaintiff's claims in a second action were “plainly barred by res judicata ” explaining, plaintiff's “new claims are based on different legal theories rather than different facts and, accordingly, could have been raised in the original complaint.”) (emphasis added).
The Court notes that, in the instant action, Plaintiff states this incident occurred “on May 8th of 2009,” Dkt. No. 1 at 11, while, by contrast, Plaintiff previously alleged this “incident occurred on May 9, 2009,” Lynch I, Dkt. No. 1 at 3. However, given the similarities between both accounts and the mere one day difference in date, the Court has no doubt both accounts refer to the same incident.
In sum, res judicata precludes all of Plaintiff's current claims against Defendants Lucas, Fetterman, Jacoby, and the State of New York. “When an in forma pauperis action is res judicata, it fails to state a claim upon which relief may be granted and thus § 1915(e)(2)(B) compels its dismissal.” Orr v. U.S. Air Force, No. 6:15-CV-1132 (GTS/TWD), 2015 WL 6671559, at *5 (N.D.N.Y. Oct. 30, 2015) (internal quotations and citation omitted) (dismissing plaintiff's complaint pursuant 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim on the grounds that his claim was barred under the doctrine of res judicata). Accordingly, the Court recommends Plaintiff's first, second, third, fourth, fifth, and sixth causes of action be dismissed for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
In any event, Plaintiff's claims against Defendants Lucas, Fetterman, and Jacoby, and the State of New York, arising from incidents which occurred in 2008 and 2009, are time barred by the three year statute of limitations applicable to § 1983 claims in New York. See Patterson v. Cnty. of Oneida, 375 F.3d 206, 225 (2d Cir. 2004) (“The statute of limitations applicable to claims brought under § . . . 1983 in New York is three years.”).
C. Plaintiff's Claim Against Defendant Carpenter
While it is not clear when Plaintiff was charged with making a false written statement or when he avers the Herkimer County District Attorney allegedly violated his constitutional rights, the Court takes judicial notice that Jeffrey Carpenter is the current Herkimer County District Attorney and John H. Crandall was the Herkimer County District Attorney prior to Carpenter's 2012 election. See generally, https://history.nycourts.gov/figure/district-attorneys-herkimer-county/ (site last visited on February 14, 2024).
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, 360-61 (2d Cir. 1987) (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). This immunity encompasses “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) (internal quotations and citation omitted). Absolute immunity applies when a prosecutor's conduct, acting as an advocate during the judicial phase of the criminal process, “involves the exercise of discretion.” Flagler v. Trainor, 663 F.3d 543, 547 (2d Cir. 2011) (citing Kalina v. Fletcher, 522 U.S. 118, 127 (1997)).
Accordingly, absolute immunity includes such functions as “deciding whether to bring charges and presenting a case to a grand jury or a court, along with the tasks generally considered adjunct to those functions, such as witness preparation, witness selection, and issuing subpoenas,” Simon v. City of New York, 727 F.3d 167, 171 (2d Cir. 2013), as well as deciding when to drop charges, Taylor v. Kavanagh, 640 F.2d 450, 452 (2d Cir. 1981); see also Flagler, 663 F.3d at 547 (“the Supreme Court has found prosecutors absolutely immune from suit for alleged misconduct during a probable cause hearing, in initiating a prosecution, and in presenting the State's case . . . [but] withheld absolute immunity for conduct unrelated to advocacy, such as giving legal advice, holding a press conference, or acting as a complaining witness.”). “[O]nce a court determines that challenged conduct involves a function covered by absolute immunity, the actor is shielded from liability for damages regardless of the wrongfulness of his motive or the degree of injury caused . . . .” Bernard v. Cty. of Suffolk, 356 F.3d 495, 503 (2d Cir. 2004) (citing Cleavinger v. Saxner, 474 U.S. 193, 199-200 (1985)).
Here, Plaintiff accuses the Herkimer County District Attorney (“DA”) of due process violations, claiming the DA:
[V]iolated plaintiff's right to a speedy trial . . . violated plaintiff's rights as guaranteed by the U.S. Constitution by failing to dispose of the charge of FALSE WRITTEN STATEMENT, 201.45 even after the statute of limitations had expired . . . [and] violated plaintiffs rights by allowing the open charge of FALSE WRITTEN STATEMENT, PL 201.45 to be used against plaintiff in a PRESENTENCING INVESTIGATION REPORT for the arrest of plaintiff on March 9th of 2017 even though he knew that the statute of limitations had expired years prior.
Dkt. No. 1 at 23-24. Plaintiff's allegations fall squarely within the scope of prosecutorial immunity. See Phillips v. Proud, No. 5:18-CV-0029 (LEK/ATB), 2018 WL 3195094, at * 4 (N.D.N.Y. Mar. 14, 2018) (concluding the plaintiff's claim that an ADA “did not dismiss the charges in a timely manner, rather, he let the speedy trial clock run” did “not defeat prosecutorial immunity,” irrespective of the ADA's motivation or the resulting damage), report and recommendation adopted, 2018 WL 3193198 (N.D.N.Y. Jun. 28, 2018); Corley v. Wittner, 811 Fed.Appx. 62, 63 (2d Cir. 2020) (Summary Order) (“The district court correctly held that the state court judge and prosecutors were absolutely immune from suit as to [the plaintiff]'s speedy trial” claim) (citing Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994)) (additional citations omitted); Taylor, 640 F.2d at 452 (“the failure to drop charges . . . ha[s] been held to be prosecutorial activit[y] for which absolute immunity applies.”) (citation omitted). Therefore, Plaintiff's claim against the DA in his individual capacity is barred.
Next, under the Eleventh Amendment, “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. Regardless of the nature of the relief sought, in the absence of the State's consent or waiver of immunity, a suit against the State or one of its agencies or departments is proscribed by the Eleventh Amendment. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). “New York State has not consented to suit in federal court.” Abrahams v. Appellate Div. of Supreme Court, 473 F.Supp.2d 550, 556 (S.D.N.Y. 2007) (citing Trotman v. Palisades Interstate Park Commission, 557 F.2d 35, 38-40 (2d Cir. 1977)), aff'd, 311 Fed.Appx. 474 (2d Cir. 2009). “Further, 42 U.S.C. § 1983 does not abrogate the immunity of the states, including New York.” Id. (citing Quern v. Jordan, 440 U.S. 332, 345 (1979)).
“When a defendant is sued in his official capacity, we treat the suit as one against the ‘entity of which an officer is an agent.'” D Alessandro, 713 Fed.Appx. 1 at 8 (citing Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)) (additional citations omitted). “Thus, if a district attorney or an assistant district attorney acts as a prosecutor, she is an agent of the State, and therefore immune from suit in her official capacity.” Id. (citing Ying Jing Gan v. City of New York, 996 F.2d 522, 536 (2d Cir. 1993); Baez v. Hennessy, 853 F.2d 73, 77 (2d Cir. 1988)); see also, e.g., Gentry v. New York, No. 1:21-CV-0319 (GTS/ML), 2021 WL 3037709, at *6 (N.D.N.Y. June 14, 2021) (explaining, “the claims against [assistant district attorneys], in their official capacities, are effectively claims against the State of New York” and recommending dismissal of said claims), report and recommendation adopted, 2021 WL 3032691 (N.D.N.Y. July 19, 2021); Rich v. New York, No. 1:21-CV-3835, 2022 WL 992885, at *5 n.4 (S.D.N.Y. Mar. 31, 2022) (“[A]ny claims Plaintiff may raise against the DA Defendants in their ‘official capacity' would be precluded by immunity under the Eleventh Amendment.”) (citation omitted). Therefore, Plaintiff's claim against the DA in his official capacity is barred.
In sum, both prosecutorial and Eleventh Amendment immunity proscribe Plaintiff's claim against the DA. Accordingly, the Court recommends Plaintiff's seventh cause of action be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). See, e.g., Gosier v. Oneida Cnty. Dist. Attorney's Office, No. 6:23-CV-1118 (DNH/TWD), 2023 WL 6880352, at *1 (N.D.N.Y. Oct. 18, 2023) (recommending dismissal of the plaintiff's § 1983 claims against the County District Attorney's Office and District Attorneys pursuant to 28 U.S.C. § 1915(e)(2)(B) and 1915A), report and recommendation adopted, 2023 WL 7220751 (N.D.N.Y. Nov. 2, 2023).
D. Plaintiff's Claim Against the County of Herkimer
Plaintiff's claim against the County of Herkimer appears to arise from a charge of making a punishable false written statement, in violation of N.Y. PENAL LAW (“P.L.”) § 210.45. Plaintiff asserts only the following facts with respect to the charge:
• On April 29th of 2009 defendant FETTERMAN issued the plaintiff a ticket for FALSE WRITTEN STATEMENT.
• For years the plaintiff has requested either a trial or dismissal of the charge of MAKING A FALSE WRITTEN STATEMENT.
• Defendant CARPENTER has continually ignored plaintiff's request for a trial or dismissal of the charge of MAKING A FALSE WRITTEN STATEMENT.
• All claims contained within[ ]this complaint fall within the Statute of Limitations due to the fact that the charge of MAKING A FALSE WRITTEN STATEMENT, CPL 210.45, remains an open charge.
Dkt. No. 1 at 15. As explained above, Plaintiff avers the DA's failure to dispose of the charge violated his due process rights and the County's failure to train the DA about “the laws and rights of an individual to a speedy trial” and “the laws and rules regarding statutes of limitation on criminal charges” violated his constitutional rights. See id. at 24-25.
To the extent Plaintiff's claim against the County concerns an ongoing state court criminal proceeding, this Court may not intervene. Hicks v. Miranda and Younger v. Harris “establish that federal courts cannot intervene in ongoing criminal proceedings except in the most extraordinary circumstances and upon a clear showing of great and immediate harm.” Peralta v. Leavitt, 56 Fed.Appx. 534, 535 (2d Cir. 2003) (affirming the District Court's conclusion “that, if the criminal proceedings against [the plaintiff] were still ongoing, the Complaint [brought under to 42 U.S.C. § 1983] must be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim.”) (citing Hicks v. Miranda, 422 U.S. 332, 349 (1975); Younger v. Harris, 401 U.S. 37 (1971)); see also Singleton v. State of N.Y., No. 1:98-CV-0414, 1998 WL 438530, at *2 (S.D.N.Y. July 31, 1998) (dismissing the plaintiff's § 1983 claim for failure to state a claim where the charges against him were still pending in state court, explaining, “[i]t is well-settled that federal courts cannot intervene in ongoing criminal proceedings except in the most extraordinary circumstances and upon a clear showing of both great and immediate harm.”) (citations omitted); Anderson v. Chou, No. 1:06-CV-3563, 2006 WL 2620424, at *2 (E.D.N.Y. Sept. 13, 2006) (abstaining from reaching the plaintiff's § 1983 claim regarding an examination in his pending state court criminal case and dismissing the complaint in its entirety). Here, Plaintiff has failed to allege, much less clearly show, both great and immediate harm would result from this Court's failure to intervene.
Accordingly, the Court recommends Plaintiff's eighth cause of action be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
For the reasons explained above, to the extent Plaintiff's “Monell” claim against Herkimer County seeks to attack a conviction on the charge of making a false written statement, any such argument is barred by Heck v. Humphrey.
E. Opportunity to Amend
As previously stated, before dismissing a pro se complaint or any part of the complaint sua sponte, the Court should generally afford the plaintiff an 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 problems with plaintiff's causes of action are substantive such that better pleading will not cure them. See Cuoco, 222 F.3d at 112.
With due regard to Plaintiff's status as a pro se litigant, the defects with respect to Plaintiff's claims against Defendants Lucas, Fetterman, Jacoby, the State of New York, and Carpenter are such that any amendment would be futile. See, e.g., Orr, 2015 WL 6671559, at *5 (recommending the plaintiff's complaint barred by res judicata “be dismissed with prejudice . . . .”); Johnson v. Bieling, No. 5:20-CV-1124 (GTS/ML), 2021 WL 1841470, at *5 (N.D.N.Y. Jan. 6, 2021) (recommending dismissal of the plaintiff's untimely complaints “with prejudice.”), report and recommendation adopted, 2021 WL 1840591 (N.D.N.Y. May 7, 2021); Gosier, 2023 WL 6880352, at *4 (“[B]ecause Plaintiff's Section 1983 against [the DA's office and various DAs] are barred under the doctrines of Eleventh Amendment immunity and prosecutorial immunity, leave to amend would be futile. Therefore, the Court recommends the complaint be dismissed without leave to amend.). Accordingly, the Court recommends Plaintiff's claims against these Defendants be dismissed without leave to amend.
Moreover, while Plaintiff's apparently pending criminal case requires the Court abstain from hearing his Monell claim against Herkimer County, the impediment is one which may be cured; therefore, the Court recommends said claim be dismissed with leave to amend. See, e.g., Anderson, 2006 WL 2620424, at *3 (dismissing the plaintiff's claim related to his pending criminal case “without prejudice to filing a new complaint in the appropriate district court upon the conclusion of the state criminal proceedings.”). However, the Court expresses no opinion as to the timeliness or legal viability of a Monell claim based on the facts as stated by Plaintiff herein. Further, Plaintiff must not reassert in any amended complaint claims that the Court has dismissed with prejudice.
VI. CONCLUSION
After carefully reviewing the record, the parties' submissions, and the applicable law, and for the reasons stated herein, it is hereby
ORDERED that Plaintiff's amended IFP application (Dkt. No. 8) is GRANTED; and it is further
RECOMMENDED that the Court DISMISS WITHOUT LEAVE TO REPLEAD Plaintiff's Complaint (Dkt. No. 1) to the extent it alleges claims against (1) Defendant Lucas, (2) Defendant Fetterman, (3) Defendant Jacoby, (4) Defendant State of New York, and (5) Defendant Carpenter; and it is further
RECOMMENDED that the Court DISMISS WITH LEAVE TO REPLEAD Plaintiff's Complaint (Dkt. No. 1) to the extent it alleges a claim against the County of Herkimer and it is further
ORDERED that the Clerk provide to Plaintiff a copy of this Report-Recommendation and Order, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit 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 (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 (14) 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); Fed.R.Civ.P. 72.
If you are proceeding pro se and are 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 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).
IT IS SO ORDERED.