Opinion
5:24-CV-1189 (DNH/MJK)
10-08-2024
DARO WEILBURG, Plaintiff, v. CARLA FITZGERALD, et al., Defendants.
DARO WEILBURG, Plaintiff, pro se.
DARO WEILBURG, Plaintiff, pro se.
HONORABLE DAVID N. HURD, U.S. DISTRICT JUDGE.
ORDER AND REPORT-RECOMMENDATION
MITCHELL J. KATZ, U.S. Magistrate Judge.
The Clerk has sent to the court for review a complaint, together with an application to proceed in forma pauperis (“IFP”), filed by pro se plaintiff, Daro Weilburg. (Dkt. Nos. 1, 2).
I. IFP Application
Plaintiff declares in his IFP application that he is unable to pay the filing fee. (Dkt. No. 2). After reviewing his application, this court finds that plaintiff is financially eligible for IFP status.
However, 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. 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. Neitzke, 490 U.S. at 327; 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. 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 Iqbal, 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)).
II. Complaint
Plaintiff alleges violations of his civil rights pursuant to 18 U.S.C. § 242; 18 U.S.C. § 505; 42 U.S.C. § 1983; and 42 U.S.C. § 1985. (Complaint (“Compl.”) at 1) (Dkt. No. 1). Specifically, plaintiff alleges the “deprivation of his [First] Amendment rights of free speech and freedom of the press.” (Id. at 3). The named defendants include Carla Fitzgerald, Clerk of the Oneida City Court; Brendan Rigby, plaintiff's court-appointed public defender; and George D. Annas, M.D., who is described by plaintiff to be “a medical doctor contracted by Madison County Mental Health Clinic as a psychiatrist to render opinions of mental health conditions of indigent defendants[.]” (Id. at 2-3).
In his statement of claim, plaintiff alleges that on or about April 25, 2023, Ms. Fitzgerald and Counselor Rigby “engaged in conspiracy to commit a fraud upon the court and the plaintiff[.]” (Compl. at 3). Plaintiff alleges that Counselor Rigby telephoned Ms. Fitzgerald and “told her what to put into the forged order of the court.” (Id. at 3-4, 6). Ms. Fitzgerald “then backdated the forged court order,” “stamped the Judge's name to the order[,]” and then “emailed the forged court order . . . to Elizabeth Spaulding of the Madison County Mental Health clinic” in order for plaintiff to be mentally evaluated pursuant to New York C.P.L. §730.30. (Id. at 4).
Plaintiff then alleges that Counselor Rigby and Dr. Annas “conspired to produce an opinion to the court that plaintiff was incapacitated and suffered from a mental disease[.]” (Compl. at 4). Plaintiff specifically alleges that he met with Dr. Annas as well as non-party Dr. Kumar for approximately ten minutes at the Madison County Mental Health Clinic on or about July 17, 2023, but Dr. Annas “canceled the evaluation” because plaintiff would not proceed without his wife present. (Id. at 4-5). Plaintiff asserts that, ultimately, these defendants “engaged in a conspiracy to manufacture a mental health evaluation on the plaintiff without [Dr. Annas] actually examining the plaintiff.” (Id. at 5). Plaintiff alleges that Dr. Annas “could not possibly diagnose plaintiff with a mental disease [because] Dr. Annas did not examine the plaintiff.” (Id. at 7). Plaintiff further alleges that the evaluation improperly included a “prognosis” by Counselor Rigby. (Id. at 5).
Plaintiff proceeds to allege various complaints about the sufficiency of Counselor Rigby's representation, including Counselor Rigby's recommendation that defendant undergo the competency evaluation, as well as the attorney's purported lack of knowledge about the law. (Compl. at 6-7).
Plaintiff alleges injuries including “mental anguish.” (Compl. at 8-9). He alleges, in conclusory fashion, additional claims including a violation of his rights to access the courts and “be secure in the professionalism of a learned medical doctor who only after a proper examination would render any diagnosis.” (Id. at 9). Plaintiff also claims he “has been slandered” by Dr. Annas. He seeks compensatory and punitive damages, along with costs. (Id.).
III. Claims Asserting Federal Criminal Violations
To the extent plaintiff attempts to assert claims pursuant to 18 U.S.C. § 242 (Deprivation of rights under color of law), and 18 U.S.C. § 505 (Seals of courts; signatures of judges of court officers), these claims are subject to dismissal because plaintiff lacks standing to pursue them. 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., No. 20-CV-1337 (TJM/CFH), 2021 WL 3518439, at *5 (N.D.N.Y. Apr. 13, 2021) (“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, 2021 WL 3204860 (N.D.N.Y. July 29, 2021); McFadden v. Ortiz, No. 12-CV-1244 (MAD/ATB), 2013 WL 1789593, at *3 (N.D.N.Y. Apr. 26, 2013) (holding that “there is no private right of action to enforce either state or federal criminal statutes.”). Accordingly, plaintiff's claims pursuant to § 242 and § 505 should be dismissed. See, e.g., Hill v. Didio, 191 Fed.Appx. 13, 14 (2d Cir. 2006) (“We have noted in the past that there is no private right of action under section 242[.]”); Citi Mortg., Inc. v. Hubbard, No. 13-144, 2014 WL 1303706, at *15 (D. Minn. Mar. 31, 2014) (no private right of action under 18 U.S.C. § 505).
IV. § 1983
A. Counselor Rigby
A claim for relief under Section 1983 must allege facts showing that each defendant acted under the color of a state “statute, ordinance, regulation, custom or usage.” 42 U.S.C. § 1983. Private parties therefore generally are not liable under the statute. Sykes v. Bank of America, 723 F.3d 399, 406 (2d Cir. 2013) (citing 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.”).
“Absent special circumstances suggesting concerted action between an attorney and a state representative, see Nicholas v. Goord, 430 F.3d 652, 656 n.7 (2d Cir. 2005) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970)), the representation of a defendant by counsel in state criminal proceedings does not constitute the degree of state involvement or interference necessary to establish a claim under Section 1983, regardless of whether that attorney is privately retained, court-appointed, or employed as a public defender.” Hodge v. Kaufmann, No. 23-CV-3049, 2023 WL 3949040, at *2 (S.D.N.Y. June 12, 2023) (citing Bourdon v. Loughren, 386 F.3d 88, 90 (2d Cir. 2004) (citing Polk Cnty. v. Dodson, 454 U.S. 312, 324-25 (1981))); see also Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000) (holding that legal aid organization ordinarily is not a state actor for purposes of Section 1983). Mr. Rigby, in representing plaintiff at his criminal proceedings, thus does not qualify as a state actor, even if he was appointed by the state court to represent plaintiff or is a public defender. Accordingly, plaintiff fails to state a claim on which relief can be granted under Section 1983 as against this defendant.
B. Ms. Fitzgerald and Dr. Annas
Plaintiff's §1983 claim against Ms. Fitzgerald, the clerk of the Oneida City court, is subject to dismissal based on Ms. Fitzgerald's absolute immunity from suit. Judicial immunity extends from judges to “others who perform functions closely associated with the judicial process.” Cleavinger v. Saxner, 474 U.S. 193, 200 (1985); see Rodriguez v. Weprin, 116 F.3d 62, 66 (2d Cir. 1997) (recognizing quasi-judicial immunity for court clerks). Courts have held that “Clerk's Office activities of filing and docketing legal documents” are an “integral part of the judicial process” and are thus entitled to absolute immunity. McKnight v. Middleton, 699 F.Supp.2d 507, 526 (E.D.N.Y. 2010), aff'd, 434 Fed.Appx. 32 (2d Cir. 2011); see also Bey v. New York, No. 11 Civ. 3296, 2012 WL 4370272, at *7 (E.D.N.Y. Sept. 21, 2012) (holding that court clerks were entitled to absolute quasi-judicial immunity for tasks that are integral to the judicial process); Humphrey v. Court Clerk for the Second Circuit, No. 08 Civ. 0363 (DNH), 2008 U.S. Dist. LEXIS 35912, at *7 (N.D.N.Y. May 1, 2008) (explaining that court clerks enjoy absolute immunity “if the task was undertaken pursuant to the explicit direction of a judicial officer or pursuant to the established practice of the court”) (citing Rodriguez, 116 F.3d at 67). Here, to the extent plaintiff's conclusory claim that Ms. Fitzgerald improperly issued a court order directing plaintiff to undergo a mental health evaluation is not completely baseless, Ms. Fitzgerald is otherwise entitled to absolute immunity.
Dr. Annas is likewise entitled to immunity. “[A]bsolute immunity may attach to non-judicial officers and employees where the individual serves as an arm of the court or where the individual conducts activities that are inexorably connected with the execution of court procedures and are analogous to judicial action.” McKnight v. Middleton, 699 F.Supp.2d 507, 527 (E.D.N.Y. 2010) (cleaned up); see Henderson v. Heffler, No. 07-CV-0487, 2010 WL 2854456, at *3 (W.D.N.Y. July 19, 2010) (“Absolute immunity has been extended to court-appointed social workers, doctors, psychiatrists, and evaluators” on “inexorably connected” theory). “Court-appointed forensic evaluators act as arms of the court and enjoy judicial immunity from federal civil rights liability as a non judicial person who fulfills a quasi-judicial role at the court's request.” Monte v. Vance, No. 18-CV-9595, 2018 WL 11302546, at *4 (S.D.N.Y. Nov. 7, 2018) (internal quotation marks and citation omitted). Plaintiff's complaint clearly sets forth that Dr. Annas was appointed by the court to make an inquiry into plaintiff's competency. Dr. Annas is therefore entitled to immunity to the extent plaintiff objects to his conclusions or processes.
V. § 1985
The §1985 claims against defendants Fitzgerald and Annas are also subject to dismissal based on these defendants' absolute immunity from suit. See Gross v. Rell, 585 F.3d 72, 83 (2d Cir. 2009) (Affirming grant of judicial immunity to defendants for claims brought pursuant to 42 U.S.C. §1985, among others).
With respect to Counselor Rigby, 18 U.S.C. § 1985 provides redress for conspiracies to deprive persons of their constitutional rights, even in the absence of a state actor. Section 1985 addresses three different types of conspiracies, namely those aimed at (1) interference with law enforcement, (2) obstruction of justice, and (3) deprivation of equal rights and privileges. 18 U.S.C. § 1985(1)-(3). To assert a viable claim under § 1985, a plaintiff must allege, among other elements, an agreement or meeting of the minds between the alleged conspirators to achieve an unlawful end. See Robinson v. Allstate Insurance. Co., 508 Fed.Appx. 7, 9 (2d Cir. 2013) (quoting Webb v. Goord, 340 F.3d 105, 110 (2d Cir. 2003)). In this case, plaintiff's complaint is most liberally construed to assert a conspiracy under § 1985(3). But to establish a violation of § 1985(3), a plaintiff must establish, among other elements, that the conspiracy was motivated by “some racial or perhaps otherwise class-based, invidious discriminatory animus ....” Id. (quoting Britt v. Garcia, 457 F.3d 264, 270 n. 4 (2d Cir. 2006)) (internal quotation omitted); see also Blue v. City of New York, No. 16-CV-9990, 2018 WL 2561023, at *9 (S.D.N.Y. June 4, 2018) (“A claim under § 1985(3) must be motivated by some racial or perhaps otherwise class-based, invidious discriminatory animus behind the conspirators' action”) (quoting Mian v. Donaldson, Lufkin & Jenrette Securities Corp., 7 F.3d 1085, 1088 (2d Cir. 1993)).
Even if plaintiff had plausibly alleged the deprivation of his civil rights in his complaint, he makes no plausible allegations of a meeting of the minds to achieve this unlawful end, much less factual assertions that would establish the requisite discriminatory animus. Accordingly, any claims pursuant to § 1985 should likewise be dismissed for failure to state a claim.
VI. Slander
Plaintiff, in conclusory fashion, alleges that he has been “slandered” by Dr. Annas' publication of his competency opinion to the court. (Compl. at 9). “Under New York law, to state a cause of action for slander, the plaintiff must allege facts plausibly suggesting (1) a defamatory statement of fact, (2) that is false, (3) published to a third party, (4) of and concerning the plaintiff, (5) made with the applicable level of fault on the part of the speaker, (6) that causes either special harm or constitutes slander per se, and (7) that is not protected by privilege.” Ryle v. Rehrig Pac. Co., No. 19-CV-1478, 2020 WL 6196144, at *8 (N.D.N.Y. Oct. 22, 2020) (citing Albert v. Loksen, 239 F.3d 256, 267 (2d Cir. 2001)). Plaintiff does not plausibly allege the elements of libel in order to state a cause of action in his complaint. Moreover, given that the court is recommending dismissal of plaintiff's federal causes of action, and the fact that slander involves a quintessential area of state law, the court recommends declining to exercise supplemental jurisdiction.
The court will also note that plaintiff's slander claim appears be barred by the one-year statute of limitations for such claims, which begins to accrue “on ‘the date of the publication or utterance of the allegedly slanderous statement.' ” See Uddoh v. United Healthcare, No. 16-CV-1002, 2017 WL 563973, at *4 (E.D.N.Y. Feb. 10, 2017) (quoting Cullin v. Lynch, 113 A.D.3d 586 (2d Dep't 2014)); see also N.Y. C.P.L.R. § 215(3). Plaintiff alleges that the statements at issue occurred on August 22, 2023 (see Compl. at 9), and he did not file his complaint until over one year later, on September 27, 2024 (see generally Compl.).
VII. 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. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation omitted).
Plaintiff's claims brought pursuant to the various federal criminal statutes pleaded should be dismissed with prejudice, because there is no private right of action to enforce them. Plaintiff's §1983 claims should be dismissed with prejudice, in light of the defendants' immunity from suit and lack of state action. Plaintiff's § 1985 claims against defendants Carla Fitzgerald and Brendan Rigby should also be dismissed with prejudice, in light of their absolute immunity. Although the court has serious doubts as to whether plaintiff can amend to assert any cognizable, federal claims over the situation that plaintiff describes in his complaint, I am compelled to otherwise recommend dismissing the remainder of the complaint without prejudice.
WHEREFORE, based on the findings above, it is
ORDERED, that plaintiff's motion to proceed IFP (Dkt. No. 2) is GRANTED,and it is
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.
RECOMMENDED, that plaintiff's claims predicated on 18 U.S.C. § 242 and 18 U.S.C. § 505 be DISMISSED WITH PREJUDICE, and it is
RECOMMENDED, that plaintiff's 42 U.S.C. § 1983 claims be DISMISSED WITH PREJUDICE, and it is
RECOMMENDED, that plaintiff's 42 U.S.C. § 1985 claims against defendants Fitzgerald and Rigby be DISMISSED WITH PREJUDICE, and it is
RECOMMENDED, that the complaint be DISMISSED WITHOUT PREJUDICE in all other respects, and it is
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.