Booker v. O'Brien

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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DIQUAN BOOKER,

Plaintiff,

MEMORANDUM & ORDER

-against- 19-CV-3864(JS)(AKT)

HON. WILLIAM J. O’BRIEN, ROBERT

SCHALK, ESQ.,

Defendants.

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APPEARANCES

For Plaintiff: Diquan Booker, pro se

16-A-1691

Sullivan Correctional Facility

P.O. Box 116

Fallsburg, New York 12733-0116

For Defendants: No appearances.

SEYBERT, District Judge:

On July 2, 2019, incarcerated pro se plaintiff Diquan

Booker (“Plaintiff”) filed a Complaint, (Compl., D.E. 1), in this

Court pursuant to 42 U.S.C. § 1983 (“Section 1983”) against the

Honorable William J. O’Brien (“Judge O’Brien”) and Robert Schalk,

Esq. (“Schalk” and together, “Defendants”), accompanied by an

application to proceed in forma pauperis, (IFP Mot., D.E. 2). On

August 26, 2019, Plaintiff filed an application for the appointment

of pro bono counsel to represent him in this case. (Mot., D.E.

16.)

Upon review of the declaration in support of the

application to proceed in forma pauperis, the Court finds that

Plaintiff is qualified to commence this action without prepayment

of the filing fee. See 28 U.S.C. §§ 1914(a); 1915(a)(1).

Therefore, Plaintiff’s request to proceed in forma pauperis is

GRANTED. However, for the reasons that follow, Plaintiff’s

Section 1983 claims are not plausible and are thus DISMISSED WITH

PREJUDICE. Given the dismissal of the Complaint, Plaintiff’s

application for the appointment of pro bono counsel is DENIED.

THE COMPLAINT1

Plaintiff’s Complaint is submitted on the Court’s

Section 1983 Complaint form and is brief. Plaintiff seeks to

challenge events alleged to have occurred in the Nassau County

Court on April 13, 2016. In its entirety, Plaintiff alleges the

following facts:

I Diquan Booker was manipulated by Robert

Schalk Esq. he was given to me by court because

I could not pay for a attorney did not have

money for one. He did not like me he did not

have a friendly conversation or relationship

with me he cursed at me told me iama animal I

am gonna kill myself if I go to trial I told

him he’s fired he said he’s not letting me

fire him he’s telling Judge O’brien not to

give me another attorney. I ask Judge O’brien

for a new attorney he said no. I brought up

1 The following facts are taken from Plaintiff’s Complaint and

are presumed to be true for the purposes of this Memorandum and

Order. Excerpts from the Complaint as reproduced here exactly

as they appear in the original. Errors in spelling,

punctuation, and grammar have not been corrected or noted.

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at a later court date I ask for a new attorney

he William J. O’brien lied and said I never

ask then he said it’s to late and gave me the

middle finger they both did not like me. I

was scared of how my attorney that was given

to me was talking to me the court had given me

a evil attorney that force me to take a plea

this was ineffective counsel and freedom then

gave me the middle finger. I was treated

wrong. You can see in my transcript how wrong

this was.2 I just was fighting for my freedom.

(Compl. & II.) Although Plaintiff does not allege any claimed

injuries (Compl. & II.A.), he seeks an award of $30 million as

“compensation for the time I done over these violated rights.”

(Compl. & III.) In addition, Plaintiff “would like the attempted

murder charges to be drop because they both violated my rights

deprived me of my right to counsel and freedom ineffective

assistance counsel cursed at me stuck up middle finger”.

2 Plaintiff has annexed a copy of the sentencing transcript,

dated April 13, 2016, to his Complaint. (S. Tr., D.E. 1-1.)

The Court notes, as a threshold matter, that because his

Complaint was filed on July 2, 2019, more than three years from

the April 13, 2016 proceeding about which Plaintiff complains,

his Section 1983 claims are likely barred by the statute of

limitations. The applicable statute of limitations for a

Section 1983 action is governed by “the law of the state in

which the cause of action arose.” Wallace v. Kato, 549 U.S.

384, 387, 127 S. Ct. 1091, 1094, 166 L. Ed. 2d 973 (2007). In

New York, the general statute of limitations for personal injury

claims is three years. See N.Y. C.P.L.R. § 214(5). Although

the Court generally would allow Plaintiff an opportunity to

demonstrate a basis to toll the statute of limitation before

dismissing his claims for this reason, the Court need not reach

this question given that Plaintiff’s Section 1983 claims are

implausible for the reasons that follow.

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(Compl. & III.)

DISCUSSION

I. In Forma Pauperis Application

Upon review of Plaintiff’s declarations in support of

his application to proceed in forma pauperis, the Court finds that

Plaintiff is qualified to commence this action without prepayment

of the filing fees. See 28 U.S.C. § 1915(a)(1). Therefore,

Plaintiff’s request to proceed in forma pauperis is GRANTED.

II. Application of 28 U.S.C. § 1915

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. §§ 1915(e)(2)(B)(i)-(iii),

1915A(b). The Court is required to dismiss the action as soon as

it makes such a determination. See id. § 1915A(b).

Courts are obliged to construe the pleadings of a pro se

plaintiff liberally. See Sealed Plaintiff v. Sealed Defendant,

537 F.3d 185, 191 (2d Cir. 2008); McEachin v. McGuinnis, 357 F.3d

197, 200 (2d Cir. 2004). However, a complaint must plead

sufficient facts to “state a claim to relief that is plausible on

its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.

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Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007). “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, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (citations

omitted). The plausibility standard requires “more than a sheer

possibility that a defendant has acted unlawfully.” Id. at 678;

accord Wilson v. Merrill Lynch & Co., 671 F.3d 120, 128 (2d Cir.

2011). While “‘detailed factual allegations’” are not required,

“[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic

recitation of the elements of a cause of action will not do.’”

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

III. Section 1983

Section 1983 provides that

[e]very person who, under color of any

statute, ordinance, regulation, custom, or

usage, of any State . . . subjects, or causes

to be subjected, any citizen of the United

States . . . to the deprivation of any rights,

privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured . . . .

42 U.S.C. § 1983; accord Rehberg v. Paulk, 566 U.S. 356, 361, 132

S. Ct. 1497, 1501B02, 182 L. Ed. 2d 593 (2012). To state a claim

under Section 1983, a plaintiff must “‘allege that (1) the

challenged conduct was attributable at least in part to a person

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who was acting under color of state law and (2) the conduct

deprived the plaintiff of a right guaranteed under the Constitution

of the United States.’” Rae v. Cty. of Suffolk, 693 F. Supp. 2d

217, 223 (E.D.N.Y. 2010) (quoting Snider v. Dylag, 188 F.3d 51, 53

(2d Cir. 1999)).

A. Immunity Bars Plaintiff’s Claims Against Judge O’Brien

1. The Eleventh Amendment

The Eleventh Amendment bars suits brought by a state’s

own citizens in federal court. Woods v. Rondout Valley Cent. Sch.

Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir. 2006) (citing Alden

v. Maine, 527 U.S. 706, 712, 119 S. Ct. 2240, 2246, 144 L. Ed. 2d

636 (1999)). Insofar as Plaintiff seeks to recover a monetary

award against Judge O’Brien, he is immune from suit under the

Eleventh Amendment. Papasan v. Allain, 478 U.S. 265, 276, 106 S.

Ct. 2932, 2939, 92 L. Ed. 2d 209 (1986); Pennhurst State Sch. &

Hosp. v. Halderman, 465 U.S. 89, 98-100, 104 S. Ct. 900, 906-08,

79 L. Ed. 2d 67 (1984). Because Section 1983 does not operate as

a waiver of New York’s Eleventh Amendment immunity and New York

has not consented to such suits in federal Court, Walter v. Queens

College, No. 18-CV-3060, 2019 WL 2342700, *4 (E.D.N.Y. June 3,

2019) (“Congress did not waive the states’ Eleventh Amendment

immunity from suit when it enacted [S]ection 1983”), Plaintiff’s

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claims against Judge O’Brien are barred by the Eleventh Amendment

and are DISMISSED WITHOUT PREJUDICE for lack of subject matter

jurisdiction. See, e.g., Seminole Tribe of Fla. v. Fla., 517 U.S.

44, 54, 116 S. Ct. 1114, 1121, 134 L. Ed. 2d 252 (1996) (a claim

that is barred by a state’s sovereign immunity is properly

dismissed under the Eleventh Amendment for a lack of subject matter

jurisdiction).

2. Absolute Judicial Immunity

Further, to the extent that Plaintiff seeks prospective

injunctive relief from Judge O’Brien in his official capacity

(which is not barred by the Eleventh Amendment) such claims are

barred by absolute judicial immunity. It is well-established that

judges have absolute judicial immunity from suit for their judicial

actions. Mireles v. Waco, 502 U.S. 9, 11, 112 S. Ct. 286, 288,

116 L. Ed. 2d 9 (1991) (“[J]udicial immunity is an immunity from

suit, not just from ultimate assessment of damages.”). This

absolute “judicial immunity is not overcome by allegations of bad

faith or malice” nor can a judicial officer be deprived of immunity

“because the action he took was in error or was in excess of his

authority.” Mireles, 502 U.S. at 11, 13, 112 S. Ct. at 288

(internal quotation marks and citations omitted; ellipsis

omitted). This immunity may be overcome only if the court is

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alleged to have taken nonjudicial actions or if the judicial

actions taken were “in the complete absence of all jurisdiction.”

Id. at 11–12, 112 S. Ct. at 288.

Here, Plaintiff complains of conduct allegedly performed

by Judge O’Brien while presiding over the underlying state court

proceeding. There is nothing in the Complaint from which the

Court could reasonably construe that any alleged misconduct

occurred outside of that capacity or that Judge O’Brien lacked

jurisdiction over the proceedings. Thus, as is readily apparent,

Judge O’Brien is entitled to absolute judicial immunity.

Accordingly, Plaintiff’s claims against Judge O’Brien are

DISMISSED.

B. Plaintiff’s Claims against Schalk are Implausible

because he does not act Under Color of State Law

As noted above, to state a plausible Section 1983 claim,

a plaintiff must allege that the challenged conduct was committed

by a person action under color of state law. Thus, private parties

are not generally liable under a Section 1983. Section 1983

liability may only be imposed upon wrongdoers “who carry a badge

of authority of a State and represent it in some capacity, whether

they act in accordance with their authority or misuse it.” Nat’l

Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179, 191, 109 S.

Ct. 454, 461-62, 102 L. Ed. 2d 469 (1988) (internal quotation marks

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and citation omitted).

Generally, attorneys, whether court-appointed or privately

retained, are not state actors for purposes of Section 1983. See

Polk Cty. v. Dodson, 454 U.S. 312, 325, 102 S. Ct. 445, 70 L. Ed.

2d 509 (1981); see also Brown v. Legal Aid Soc’y, 367 F. App’x

215, 216 (2d Cir. Feb. 23, 2010) (holding 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). Nevertheless, liability may be imposed under Section

1983 upon private individuals who are not state actors pursuant to

a conspiracy theory. See Ciambriello v. Cty. of Nassau, 292 F.3d

307, 324-25 (2d Cir. 2002). In order to state a Section 1983

conspiracy claim, a plaintiff must allege: “(1) an agreement

between a state actor and a private party; (2) to act in concert

to inflict an unconstitutional injury; and (3) an overt act done

in furtherance of that goal causing damages.” Ciambriello, 292

F.3d at 324-25.

As is readily apparent, Plaintiff’s Section 1983 claims

against Schalk are implausible because he is not a state actor and

the Complaint, including the transcript annexed thereto, is devoid

of any factual allegations such that a plausible Section 1983

conspiracy claim may be reasonably construed. Accordingly,

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Plaintiff’s Section 1983 claims against Schalk are DISMISSED WITH

PREJUDICE pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1).

Given the dismissal of Plaintiff’s federal claims, the Court

declines to exercise supplemental jurisdiction over any remaining

state laws claims Plaintiff may have and any such claims are thus

DISMISSED WITHOUT PREJUDICE. See 28 U.S.C. § 1367(c)(3); see also

Carnegie Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S. Ct.

614, 619, 98 L. Ed. 2d 720 (1988) (a federal court should generally

decline to exercise supplemental jurisdiction over state law

claims if, as is the case here, the complaint asserts federal

question jurisdiction but not diversity jurisdiction, and the

complaint’s federal claims are dismissed at an early stage in the

litigation).

C. Leave to Amend

Given the Second Circuit’s guidance that a pro se

complaint should not be dismissed without leave to amend unless

amendment would be futile, Cuoco v. Moritsugu, 222 F.3d 99, 112

(2d Cir. 2000), the Court has carefully considered whether leave

to amend is warranted here. Because the defects in Plaintiff’s

claims are substantive and would not be cured if afforded an

opportunity to amend, leave to amend the Complaint is DENIED.

Given the dismissal of the Complaint, Plaintiff’s application for

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the appointment of pro bono counsel is DENIED.

CONCLUSION

For the reasons set forth above, Plaintiff’s application

to proceed in forma pauperis, (D.E. 2), is GRANTED, however the

Complaint is sua sponte DISMISSED WITH PREJUDICE for failure to

state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii)-(iii),

1915A(b) with the exception that Plaintiff’s Section 1983 claims

seeking monetary damages against Judge O’Brien are DISMISSED

WITHOUT PREJUDICE for lack of subject matter jurisdiction. Given

the dismissal of Plaintiff’s federal claims, the Court declines to

exercise supplemental jurisdiction over any remaining state laws

claims Plaintiff may have and any such claims are thus DISMISSED

WITHOUT PREJUDICE. Finally, given the dismissal of the Complaint,

Plaintiff’s application for the appointment of pro bono counsel,

(D.E. 16), is DENIED.

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)

that any appeal from this Order would not be taken in good faith

and therefore in forma pauperis status is DENIED for the purpose

of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-

45, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).

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The Clerk of the Court is directed to mail a copy of

this Memorandum and Order to the pro se Plaintiff and to mark this

case CLOSED.

SO ORDERED.

/s/ JOANNA SEYBERT______

Joanna Seybert, U.S.D.J.

Dated: October 16 , 2019

Central Islip, New York

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