“The decision to initiate 23 prosecution, what charges to bring, and how to perfect and consolidate those charges is a quintessential prosecutorial function.”
How later courts described this case
- “The decision to initiate 23 prosecution, what charges to bring, and how to perfect and consolidate those charges is a quintessential prosecutorial function.”
- “Absolute immunity protects a prosecutor not only from liability but also from suit.”
- “[T]here is no federal constitutional right to testify before a grand jury, nor, for that matter, is there even a federal right to a grand jury in state criminal proceedings.”
- the Eleventh Amendment “bars the award of money damages against state officials in their official capacities”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
LENNOX LONDON,
Plaintiff,
MEMORANDUM & ORDER
-against- 20-CV-3988(JS)(AKT)
NASSAU COUNTY DISTRICT ATTORNEY’S
OFFICE; A.D.A. MICHELLE BURKE; D.A.
MADELINE SINGAS; A.D.A. NICOLE
ALOISE; FIRST PRECINCT P.O. ANDREW
MIRANDA, SHIELD #0498; SUPERVISOR
LT. KEVIN C. DRISCOLL, #7447; FIRST
SQUAD DETECTIVES: 1ST PRECINCT DET.
MATTHEW ANDOOS, DET. THROO, DET.
MICHAEL FORANOCE, DET. MAZZIE;
GOVERNOR ANDREW M. CUOMO; NASSAU
COUNTY DISTRICT COURT; HON. JUDGE
TERENCE P. MURPHY; HON. JUDGE MERYL
J. BERKOWITZ; LEGAL AID SOCIETY OF
NASSAU COUNY, N.Y.; and NANCY GARBER,
Defendants.
----------------------------------X
LENNOX LONDON,
Plaintiff,
-against- 20-CV-3989(JS)(AKT)
NASSAU COUNTY DISTRICT ATTORNEY’S
OFFICE; A.D.A. MICHELLE BURKE; D.A.
MADELINE SINGAS; A.D.A. NICOLE
ALOISE; FIRST PRECINCT P.O. ANDREW
MIRANDA, SHIELD #0498; SUPERVISOR
LT. KEVIN C. DRISCOLL, #7447; FIRST
SQUAD DETECTIVES: 1ST PRECINCT DET.
MATTHEW ANDOOS, DET. THROO, DET.
MICHAEL FORANOCE, DET. MAZZIE;
GOVERNOR ANDREW M. CUOMO; NASSAU
COUNTY DISTRICT COURT; HON. JUDGE
TERENCE P. MURPHY; HON. JUDGE MERYL
J. BERKOWITZ; LEGAL AID SOCIETY OF
NASSAU COUNY, N.Y.; and NANCY GARBER,
Defendants.
----------------------------------X
LENNOX LONDON,
Plaintiff,
-against- 20-CV-3990(JS)(AKT)
NASSAU COUNTY DISTRICT ATTORNEY’S
OFFICE; A.D.A. MICHELLE BURKE; D.A.
MADELINE SINGAS; A.D.A. NICOLE
ALOISE; FIRST PRECINCT P.O. ANDREW
MIRANDA, SHIELD #0498; SUPERVISOR
LT. KEVIN C. DRISCOLL, #7447; FIRST
SQUAD DETECTIVES: 1ST PRECINCT DET.
MATTHEW ANDOOS, DET. THROO, DET.
MICHAEL FORANOCE, DET. MAZZIE;
GOVERNOR ANDREW M. CUOMO; NASSAU
COUNTY DISTRICT COURT; HON. JUDGE
TERENCE P. MURPHY; HON. JUDGE MERYL
J. BERKOWITZ; LEGAL AID SOCIETY OF
NASSAU COUNY, N.Y.; and NANCY GARBER,
Defendants.
----------------------------------X
APPEARANCES
For Plaintiff: Lennox London, pro se
20-A-1857
Downstate Correctional Facility
121 Red Schoolhouse Road
P.O. Box F
Fishkill, New York 12524
For Defendants: No appearances.
SEYBERT, District Judge:
Before the Court are three civil rights Complaints filed
by incarcerated pro se plaintiff Lennox London (“Plaintiff”)
pursuant to 42 U.S.C. § 1983 (“Section 1983”), together with an
application to proceed in forma pauperis for each Complaint. For
the reasons that follow, Plaintiff’s applications to proceed in
forma pauperis are GRANTED and the Complaints are CONSOLIDATED
into the first filed case, Case Number 20-CV-3988(JS)(AKT). The
Complaints assigned Case Numbers 20-CV-3989(JS)(AKT) and 20-CV-
3990(JS)(AKT) shall be CLOSED. All future filings shall be made
in Case Number 20-3988(JS)(AKT) only. In addition, Plaintiff’s
Section 1983 claims are DISMISSED, as set forth below, pursuant to
28 U.S.C. §§ 1915, 1915A.
PROCEDURAL BACKGROUND
In August 2020, Plaintiff filed three substantially
similar Complaints against the same Defendants. On August 21,
2020, Plaintiff filed two Section 1983 Complaints in this Court
against: the Nassau County District Attorney’s Office, A.D.A.
Michelle Burke (“ADA Burke”), D.A. Madeline Singas (“DA Singas”),
A.D.A. Nicole Aloise (“ADA Aloise”), First Precinct P.O. Andrew
Miranda, Shield #0498 (“PO Miranda”); Supervisor Lt. Kevin C.
Driscoll, #7447 (“Lt. Driscoll”); the following First Squad
Detectives: 1st Precinct Det. Matthew Andoos (“Det. Andoos”), Det.
Throo (“Det. Throo”), Det. Michael Foranoce (“Det. Foranoce”),
Det. Mazzie (“Det. Mazzie”); Governor Andrew M. Cuomo (“Gov.
Cuomo”), Nassau County District Court (“NC District Court”), Hon.
Judge Terence P. Murphy (“Judge Murphy”), Hon. Judge Meryl J.
Berkowitz (“Judge Berkowitz”), Legal Aid Society Of Nassau County,
N.Y. (“Legal Aid”), and Nancy Garber (“Garber”; collectively, the
“Defendants”). The Complaint assigned docket number 20-CV-3988
was accompanied by an application to proceed in forma pauperis,
but did not include the required Prisoner Litigation Authorization
form (“PLRA”). (See 20-CV-3988, IFP Mot., D.E. 2.) Accordingly,
by Notices of Deficiency dated August 26, 2020 and August 27, 2020,
Plaintiff was instructed to complete and return the enclosed PLRA
forms, which he did on September 3, 2020 and September 8, 2020.
(PLRA, D.E. 8-9.)
The other August 21, 2020 Complaint was assigned Case
Number 20-CV-3990 and, because Plaintiff had not paid the fee or
filed an application to proceed in forma pauperis, by Notice of
Deficiency dated August 27, 2020, Plaintiff was instructed to
either remit the filing fee or file the enclosed application to
proceed in forma pauperis and PLRA in order for his case to
proceed. (D.E. 4.) On September 3, 2020, Plaintiff timely filed
the PLRA (D.E. 6), and, on September 8, 2020, he filed an
application to proceed in forma pauperis and another PLRA. (D.E.
7-8.)
On August 24, 2020, Plaintiff filed another Complaint,
assigned Case Number 20-CV-3989, against the same Defendants.
Because Plaintiff had not paid the fee or filed an application to
proceed in forma pauperis, by Notice of Deficiency dated August
27, 2020, Plaintiff was instructed to either remit the filing fee
or file the enclosed application to proceed in forma pauperis and
PLRA in order for his case to proceed. (D.E. 4.) On September
8, 2020, Plaintiff timely filed an application to proceed in forma
pauperis and PLRA. (D.E. 7-8.)
THE COMPLAINTS1
Each Complaint names the same Defendants and contains
the same allegations and claims. Plaintiff challenges his on-
going state court criminal prosecution and seeks, among other
things, the dismissal of the indictment and his release from
incarceration. According to Plaintiff, he had an on-going dispute
with his neighbor and, on August 27, 2019, he argued with his
neighbor about tree branches Plaintiff claims were thrown on his
lawn. (Compls. at 4.)2 Plaintiff alleges that his neighbor “shot
at me before because he hates me, he said he never like me, so I
shot to the ground to scare him away.” (Compls. at 4.) As a
result, Plaintiff was arrested and charged with attempted murder
in the second degree and criminal possession of a weapon in the
second degree. (Compls. at 9.)
Plaintiff complains that he was “overcharged by the ADA
Michelle Burke and P.O. Andrew R. Miranda when I should not be
charged with, my correct charges was attempted assault.” (Compls.
at 9.) According to Plaintiff, because no one was injured and,
1 Excerpts from the Complaints are reproduced here exactly as they
appear in the originals. Errors in spelling, punctuation, and
grammar have not been corrected or noted.
2 When citing to the Complaints, the Court refers to the page
numbers generated by the Court’s Electronic Case Filing system
(ECF).
due to his mental illness,3 the charges are improper. (Compls. at
4, 7, 9.)
Plaintiff also complains that he was pressured by PO
Miranda, Lt. Driscoll, Det. Andoss, Det. Mazzie, Det. Foranoce,
and Det. Throo to give a statement even though he asked for a
lawyer. Plaintiff claims that the officers did not “read me my
rights.” (Compls. at 9-10.) However, after “a few hours in the
Interrogation Arrest Room,” Plaintiff “told them what happened
after being pressured, scared, tired, [and] drained” and “then
they read me my rights.” (Compls. at 10.) Plaintiff alleges that
PO Miranda “lied on the Grand Jury stand when the ADA Michelle
Burke asked him if he read me my rights before questioning me and
said yes.” (Compls. at 10.)
Next, Plaintiff challenges the amount set as bail during
his arraignments. According to Plaintiff, he was first arraigned
on August 28, 2019, with bail being set at $250,000. (Compls. at
11.) Plaintiff alleges that he had a “2nd arraignment . . . on
September 24, 2019” where he was indicted on an additional fifteen
counts and Judge Berkowitz set bail at either one-million dollars
bond or half-a-million dollars cash. (Compls. at 11.) Plaintiff
claims this bail is excessive and that his attorney, Garber, never
3 Plaintiff alleges that he suffers from mental illness, having
been diagnosed with bi-polar disorder, schizophrenia, psychosis,
depression, and anxiety. (Compls. at 7.)
told him about the second grand jury and waived his “right to
testify without me knowing.” (Compls. at 11.) According to
Plaintiff, “I have a right to appear before a grand jury as a
witness on my own behalf.” (Compls. at 11.) Plaintiff also
claims that ADA Burke failed to turn over unspecified exculpatory
evidence. (Compls. at 13.)
Plaintiff also complains that his right to a speedy trial
is being denied as a result of Governor Cuomo’s suspension of “CPL
30.30, 240 the Speedy Trial Rights and the Automatic Disclosure
file. I have rights that cannot be infringed upon and when Gov.
Cuomo suspended Criminal Procedure Law he violated Due Process Law
– the 14th Amendment.” (Compls. at 14-15.) According to
Plaintiff, “[t]he COVID-19 Pandemic is not an exceptional
circumstance to be used to justify suspending criminal procedure
law.” (Compls. at 21-22.)
Finally, Plaintiff complains that he is “vulnerable to
the attack of the Coronavirus” because he is pre-diabetic and has
underlying medical conditions, including tuberculosis, a weak
immune system, and “breathing problems.” (Compls. at 4, 8, 22-
23.) However, ADA Aloise opposed his application for
compassionate release, and it was denied by Judge Murphy.
(Compls. at 23-24.) Plaintiff challenges that ruling, claiming
that Judge Murphy and ADA Aloise “put themselves in the place of
medical physicians putting plaintiff’s life at risk by knowingly
making a decision that was against top medical physicians that
instructed the DOC and Jails to release underlined detainees with
the illnesses that was vulnerable to the disease.” (Compls. at
23.)
For relief, Plaintiff seeks to have the indictments
dismissed with prejudice and to be released from incarceration.
Plaintiff also seeks to recover a damages award in the total sum
of three-and-a-half-million dollars. (Compls. at 5, 29-30.)
DISCUSSION
I. In Forma Pauperis Applications
Upon review of Plaintiff’s declarations in support of
his applications to proceed in forma pauperis, the Court finds
that Plaintiff is qualified by his financial status to commence
this action without prepayment of the filing fees. See 28 U.S.C.
§ 1915(a)(1). Therefore, Plaintiff’s requests to proceed in forma
pauperis are GRANTED.
II. Consolidation
Under Federal Rule of Civil Procedure 42, “[i]f actions
before the court involve a common question of law or fact, the
court may: (1) join for hearing or trial any or all matters at
issue in the actions; (2) consolidate the actions; or (3) issue
any other orders to avoid unnecessary cost or delay.” FED. R. CIV.
P. 42(a). “The trial court has broad discretion to determine
whether consolidation is appropriate.” Johnson v. Celotex Corp.,
899 F.2d 1281, 1284-85 (2d Cir. 1990). Consolidation of cases
with common questions of law or fact is favored “to avoid
unnecessary costs or delay,” Johnson, 899 F.2d at 1284, and to
“expedite trial and eliminate unnecessary repetition and
confusion,” Devlin v. Transp. Commc’n Int’l Union, 175 F.3d 121,
130 (internal citations omitted).
“The Second Circuit has long adhered to the first-filed
doctrine in deciding which case to dismiss where there are
competing litigations. Where there are several competing
lawsuits, the first suit should have priority, absent the showing
of balance of convenience or special circumstances giving priority
to the second.” Kellen Co., Inc. v. Calphalon Corp., 54 F. Supp.
2d 218, 221 (S.D.N.Y. 1999) (internal quotation marks,
alterations, and citations omitted); accord Adam v. Jacobs, 950
F.2d 89, 92 (2d Cir. 1991); First City Nat’l Bank & Trust Co. v.
Simmons, 878 F.2d 76, 79 (2d Cir. 1989). The first-filed rule
seeks to conserve judicial resources and avoid duplicative
litigation. See Jacobs, 950 F.2d at 92; First City Nat’l Bank &
Trust Co., 878 F.2d at 80; Kellen, 54 F. Supp. 2d at 221.
Here, Plaintiff’s Complaints are largely repetitive and
are nearly identical. Certainly, the Complaints involve common
issues of law and fact. Accordingly, in the sound exercise of its
discretion, the Court orders that Plaintiff’s cases be
CONSOLIDATED pursuant to Federal Rule of Civil Procedure 42 into
the first filed case, Case Number 20-CV-3988(JS)(AKT). The Clerk
of Court is DIRECTED to: (1) consolidate these actions; and (2)
mark CLOSED cases assigned Case Numbers 20-CV-3989(JS)(AKT) and
20-CV-3990(JS)(AKT). Any future filings are to be docketed in
Case Number 20-CV-3988 only.
III. 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). An action is frivolous as a matter of law when, inter
alia, it is based on an “indisputably meritless legal theory” or
when it “lacks an arguable basis in law ..., or [when] a
dispositive defense clearly exists on the face of the complaint.”
Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir.
1998). The Court is required to dismiss the action as soon as it
makes such a determination. See 28 U.S.C. § 1915A.
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
10
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.
Ct. 1955, 1974 (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, 1949 (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). With these standards in mind, the
Court considers Plaintiff’s claims below.
A. Claims Challenging the Charges in the Indictments
Plaintiff complains that the charges against him are
improper. Although Plaintiff admits to firing a gun during an
argument with his neighbor, he claims that the attempted murder
charge and criminal possession of a weapon charge are excessive.
Rather, Plaintiff believes that attempted assault would be the
“correct charge.” (Compls. at 9.) Such claims are frivolous.
11
The decision whether to charge, and what to charge, are
solely within the discretion of the prosecution. See Barnett v.
City of Yonkers, No. 15-CV-4013, 2020 WL 2539005, at *5 (S.D.N.Y.
May 19, 2020) (role of prosecutor includes “‘evaluating and
organizing evidence for presentation at trial or to a grand jury,
or determining which offenses are to be charged’”)(citing Hill v.
City of N.Y., 45 F.3d 653, 661 (2d Cir. 1995)); see also United
States v. Avenatti, 433 F. Supp. 3d 552, 561 (S.D.N.Y. 2020)
(“‘[S]o long as the prosecutor has probable cause to believe that
the accused committed an offense defined by statute, the decision
whether or not to prosecute, and what charge to file or bring
before a grand jury, generally rests entirely in his [or her]
discretion.’”)(quoting Bordenkircher v. Hayes, 434 U.S. 357, 364,
98 S. Ct. 663, 54 L. Ed. 2d 604 (1978)). Thus, Plaintiff’s claims
challenging the charges in the indictments are implausible and are
DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. §§ 1915(e)(2)(B),
1915A.
B. Claims Challenging the Amount Set as Bail
Plaintiff also challenges the amount set as bail during
his arraignments. According to Plaintiff, he was first arraigned
on August 28, 2019 and bail was set at $250,000. (Compls. at 11.)
12
Plaintiff alleges that he had a “2nd arraignment . . . on September
24, 2019” where he was indicted on an additional fifteen counts
and bail was set at one million dollars bond or $500,000 cash.
(Compls. at 11.) Plaintiff claims the bail set is excessive.
When bail is granted, the Eighth Amendment requires that
it may not “impose restraints that are more than necessary to
achieve the government’s interest[,] . . . [in] preventing risk of
flight and danger to society or children.” United States v.
Polouizzi, 697 F. Supp. 2d 381, 390 (E.D.N.Y. 2010) (citing United
States v. Salerno, 481 U.S. 739, 754 (1987)). “The Supreme Court
has held that the term ‘excessive’ means ‘grossly disproportional
to the gravity of a defendant’s offense.’” Barton v. New York,
No. 17-CV-5326, 2018 WL 262836, at *2 (E.D.N.Y. Jan. 2, 2018)
(quoting United States v. Bajakajian, 524 U.S. 321, 334, 118 S.
Ct. 2028, 2036 (1998)).
Here, Plaintiff claims that his bail was excessive
because the charges against him were “legally insufficient.”
(Compls. at 11.) According to Plaintiff, the “evidence was
insufficient, illegal, no proof of attempted murder.” (Compls.
at 11.) Plaintiff also alleges that the bail set at his second
arraignment on September 24, 2019 was excessive because it was
higher than the new Bail Reform Law that “took effect on Jan. 1st
13
2020. My bail should not be that high by the new Bail Reform
Law.” (Compls. at 12.) Although Plaintiff alleges that he was
indicted on an additional fifteen counts, he does not include any
additional information concerning those charges. (Compls. at 12.)
Further, Plaintiff fails to allege facts supporting his
conclusion that his bail was excessive. Rather, Plaintiff admits
that he fired a gun during the argument with his neighbor “to scare
him” which led to Plaintiff’s arrest and indictment. (Compls. at
4.) Because Plaintiff has not alleged any facts tending to show
that his bail was disproportional to the gravity of the offenses
with which he was charged, he has failed to plead “enough facts to
state a claim to relief that is plausible on its face.” Twombly,
550 U.S. at 570; Iqbal, 556 U.S. at 678 (“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.”). Moreover, Plaintiff’s
excessive bail claims are also barred by absolute judicial immunity
because the setting of bail is a judicial function that is entitled
to absolute immunity. Franklin v. Warren Cty. D.A.’s Office, No.
08-CV-0801, 2009 WL 161314, at *5 (N.D.N.Y. Jan. 21, 2009)
(absolute judicial immunity barred excessive bail claim against
judge) (citing Young v. Selsky, 41 F.3d 47, 51 (2d Cir. 1994)
14
(reciting that “[j]udges enjoy absolute immunity from personal
liability for acts committed within their judicial
jurisdiction”)); see infra at 21-22. Therefore, Plaintiff’s
excessive bail claims are DISMISSED WITH PREJUDICE pursuant to 28
U.S.C. §§ 1915(e)(2)(B), 1915A.
C. Claims Challenging the Grand Jury Proceedings
Plaintiff also complains that his attorney, Garber,
never told him about the second grand jury and waived his “right
to testify without me knowing.” (Compls. at 11.) According to
Plaintiff, “I have a right to appear before a grand jury as a
witness on my own behalf.” (Compls. at 11.) This claim is a
nonstarter. It is well-established that a plaintiff has no
federal constitutional right to either attend or testify before a
grand jury. United States v. Mandujano, 425 U.S. 564, 571-72, 96
S. Ct. 1768, 1774 (1976); Franklin v. Warren Cty. D.A.’s Office,
No. 08-CV-801, 2009 WL 161314, at *2, *5 (N.D.N.Y. Jan. 21, 2009)
(“[T]here is no federal constitutional right to testify before a
grand jury, nor, for that matter, is there even a federal right to
a grand jury in state criminal proceedings.”); see also Barton,
2018 WL 262836, at 3.4 While Plaintiff has a constitutional right
4 Under New York State law, a defendant has a right to testify
before the grand jury as a witness on his own behalf if he has
provided written notice of his request to the district attorney,
15
as a defendant in a criminal proceeding to be present and testify
at his criminal trial, he does not have a constitutional or federal
right to be present or to testify at grand jury proceedings. Thus,
Plaintiff has failed to state a claim under Section 1983 regarding
his non-appearance before the grand jury because he has not alleged
the violation of a constitutional or federal right. Moreover, to
the extent he seeks to impose Section 1983 liability on Garber,
such claim is implausible because she is not a state actor. See
infra at 24-25. Accordingly, these claims are not plausible and,
thus, DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. §
1915(e)(2)(B), 1915A.
D. Claims Challenging the Interrogation
Plaintiff alleges that he was coerced by PO Miranda, Lt.
Driscoll, Det. Andoos, Det. Throo, Det. Foranoce, and Det. Mazzie
to give a statement without being read his Miranda Rights as
required by Miranda v. Arizona, 384 U.S. 436, 467, 86 S. Ct. 1602
see N.Y. Crim. Proc. Law § 190.50(5)(a) (“When a criminal charge
against a person is being or is about to be or has been submitted
to a grand jury, such person has a right to appear before such
grand jury as a witness in his own behalf if, prior to the filing
of any indictment or any direction to file a prosecutor’s
information in the matter, he serves upon the district attorney of
the county a written notice making such request and stating an
address to which communications may be sent.”). Here, Plaintiff
brings his claims under Section 1983 and provides no facts that
would give rise to a plausible state law claim even affording the
pro se Complaints a liberal construction.
16
(1966). Plaintiff also claims that he was interrogated after he
asked for a lawyer. (Compls. at 9-10.) These Section 1983 claims
are implausible. See, e.g., Blond v. City of Schenectady, No. 10–
CV–0598, 2010 WL 4316810, at *4 (N.D.N.Y. Oct. 26, 2010) (“A
Section 1983 claim cannot stand solely on the basis of an alleged
failure to administer Miranda warnings.”).
Insofar as Plaintiff alleges that he was not provided
Miranda warnings before his interrogation,
[t]his claim must be dismissed because the Second
Circuit Court of Appeals has held that an alleged failure
to provide Miranda warnings, standing alone, does not
form the basis for liability under 42 U.S.C. § 1983. In
reaching this conclusion, the Second Circuit reasoned
that Miranda is a procedural safeguard as opposed to a
right expressly set forth in the Fifth Amendment and
that the remedy for a violation of Miranda is suppression
of any un-Mirandized statements.
Johnson v. Bayerl, No. 04-CV-0370S, 2004 WL 2270804, at *2
(W.D.N.Y. Oct. 3, 2004) (citing Neighbour v. Covert, 68 F.3d 1508,
1510–11 (2d Cir. 1995) (citations omitted)); see also Chavez v.
Martinez, 538 U.S. 760, 767, 123 S. Ct. 1994, 2001 (2003)
(plurality opinion) (“The privilege against self-incrimination
guaranteed by the Fifth Amendment is a fundamental trial right of
criminal defendants . . . a constitutional violation occurs only
at trial.” (internal quotation marks and citation omitted).
Similarly, the questioning of Plaintiff after he allegedly
17
requested counsel does not give rise to a plausible Section 1983
claim. Because Plaintiff is awaiting trial, “the remedy for a
violation of the right against self-incrimination is ‘the
exclusion from evidence of any ensuing self-incriminating
statements’ and ‘not a § 1983 action.’” Deshawn E. by Charlotte
E. v. Safir, 156 F.3d 340, 346 (2d Cir. 1998) (quoting Neighbour
v. Covert, 68 F.3d 1508, 1510–11 (2d Cir. 1995)). Accordingly,
Plaintiff’s Section 1983 claims challenging his interrogation are
not plausible, see Faccio v. Eggleston, No. 10-CV-699, 2011 WL
3666588, at *5–6 (N.D.N.Y. Aug. 22, 2011), and are DISMISSED
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii), 1915A(b).
E. Claims Challenging the Suspension of the Speedy
Trial Act
Plaintiff also complains that his right to a speedy trial
is being denied as a result of Governor Cuomo’s suspension of “CPL
30.30, 240 the Speedy Trial Rights and the Automatic Disclosure
file. I have rights that cannot be infringed upon and when Gov.
Cuomo suspended Criminal Procedure Law he violated Due Process Law
– the 14th Amendment.” (Compls. at 14-15.) As already noted,
according to Plaintiff, “[t]he COVID-19 Pandemic is not an
exceptional circumstance to be used to justify suspending criminal
procedure law.” (Compls. at 21-22.) This claim is implausible.
“Although CPL § 30.30 is entitled a ‘speedy trial’ statute, the
18
history of its adoption makes evident that it addresses only the
problem of prosecutorial readiness, and is not a speedy trial
statute in the constitutional sense.” People v. Haneiph, 745
N.Y.S.2d 405, 408 (Sup. Ct. Kings Cty. 2002). Moreover,
Plaintiff’s claims seeking damages against Governor Cuomo fail for
the additional reason that “[a] Section 1983 claim for damages
against Governor Cuomo in his official capacity is barred by the
Eleventh Amendment.” Randolph v. Cuomo, No. 20-CV-4719, 2020 WL
6393015, at *4 (E.D.N.Y. Nov. 2, 2020) (citing Ford v. Reynolds,
316 F.3d 351, 354 (2d Cir. 2003) (the Eleventh Amendment “bars the
award of money damages against state officials in their official
capacities”)). Accordingly, these claims are implausible and,
therefore, DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B),
1915A.
IV. Immunity
Even if Plaintiff had alleged a viable claim against the
state Defendants, Eleventh Amendment immunity bars Plaintiff’s
claims for damages against the State of New York and the individual
state Defendants in their official capacities. See Will v. Mich.
Dep’t of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 2312
(1989) (“[A] suit against a state official in his or her official
capacity is not a suit against the official but rather is a suit
19
against the official’s office. As such, it is no different from
a suit against the State itself.” (internal citation and citations
omitted)). Similarly, Plaintiff’s claims against the prosecutors
and the judges are barred by absolute prosecutorial immunity and
judicial immunity, respectively. Mireles v. Waco, 502 U.S. 9, 11-
12, 112 S. Ct. 286, 288 (1991); see also Thomas v. Ramos, No. 20-
CV-3422, 2020 WL 2192716, at *3 (S.D.N.Y. May 5, 2020)).
“[D]istrict courts are encouraged to determine the availability of
an absolute immunity defense at the earliest appropriate stage,
and preferably before discovery . . . because an absolute immunity
defeats a suit at the outset, so long as the official’s actions
were within the scope of the immunity.” Deronette v. City of
N.Y., No. 05-CV-5275, 2007 WL 951925, at *4 (E.D.N.Y. Mar. 27,
2007) (citations, alterations, and quotation marks omitted).
A. Sovereign Immunity
The Eleventh Amendment to the United States Constitution
provides that “[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. As a result, a State is immune from suits in
federal court brought by its own citizens. Soloviev v. Goldstein,
20
104 F. Supp. 3d 232, 243 (E.D.N.Y. 2015) (citations omitted).
This immunity extends to “officers acting on behalf of the State”
and “to state agencies as well.” Soloviev, 104 F. Supp. 3d at 243
(citing Winokur v. Office of Court Admin., 190 F. Supp. 2d 444,
448 (E.D.N.Y. 2002); Emmons v. City Univ. of N.Y., 715 F. Supp. 2d
394, 406 (E.D.N.Y. 2010)). As such, Eleventh Amendment immunity
requires dismissal of all of Plaintiff’s Section 1983 claims
seeking damages against the Nassau County District Attorney’s
Office, the Nassau County District Court, Governor Cuomo, DA
Singas, ADA Burke, ADA Aloise, Judge Murphy, and Judge Berkowitz.
Accordingly, Plaintiff's Section 1983 claims seeking damages
against these Defendants are DISMISSED WITH PREJUDICE pursuant to
28 U.S.C. §§ 1915(e)(2)(B), 1915A.5
B. Judicial Immunity
It is well-settled that “officials acting in a judicial
capacity are entitled to absolute immunity against § 1983 actions,
and this immunity acts as a complete shield to claims for money
damages.” Montero v. Travis, 171 F.3d 757, 760 (2d Cir. 1999);
see also Mireles, 502 U.S. at 9-10 (1991) (citations omitted)
5 Although the Eleventh Amendment does not bar claims against the
State seeking prospective injunctive relief, see Seminole Tribe of
Fla. v. Florida, 517 U.S. 44, 73, 116 S. Ct. 1114 (1996)),
Plaintiff has not alleged a plausible claim seeking prospective
injunctive relief for reasons set forth herein.
21
(“[G]enerally, a judge is immune from a suit for money damages.
Although unfairness and injustice to a litigant may result on
occasion, ‘it is a general principle of the highest importance to
the proper administration of justice that a judicial officer, in
exercising authority vested in him, shall be free to act upon his
own convictions, without apprehension of personal consequences to
himself.’”). This immunity applies to state court judges who are
sued in federal court pursuant to 42 U.S.C. § 1983. See Pizzolato
v. Baer, 551 F. Supp. 355, 356 (S.D.N.Y. 1982). “A judge will not
be deprived of immunity because the action he took was in error,
was done maliciously, or was in excess of his authority; rather,
he will be subject to liability only when he has acted in the clear
absence of all jurisdiction.” Stump v. Sparkman, 435 U.S. 349,
357 (1978).
Here, Plaintiff’s allegations regarding Judge Murphy and
Judge Berkowitz relate to actions each took as a judge while
presiding over Plaintiff’s criminal proceedings that occurred in
state court. (See generally Compls.) As a result, the claims
against Judge Murphy and Judge Berkowitz are barred by absolute
judicial immunity and are DISMISSED pursuant to 28 U.S.C. §§
1915(e)(2), 1915A. See Mills v. Fischer, 645 F.3d 176, 177 (2d
Cir. 2011) (“Any claim dismissed on the ground of absolute judicial
22
immunity is ‘frivolous’ for purposes of [the IFP statute].”).
C. Prosecutorial Immunity
Plaintiff’s Section 1983 claims against DA Singas, ADA
Burke and ADA Aloise seeking money damages are barred by absolute
prosecutorial immunity. It is well-established that prosecutors
are entitled to absolute immunity from liability in suits seeking
monetary damages for acts related to prosecutorial duties. See
Burns v. Reed, 500 U.S. 478, 486, 111 S. Ct. 1934 (1991)
(“[P]rosecutors are absolutely immune from liability under § 1983
for their conduct in initiating a prosecution and in presenting
the State’s case . . . .” (internal quotation marks and citation
omitted)); Ogunkoya v. Monaghan, 913 F.3d 64, 67 (2d Cir. 2019)
(“Absolute immunity protects a prosecutor not only from liability
but also from suit.”) (citation and quotation marks omitted).
“Prosecutorial immunity from § 1983 liability is broadly defined,
covering virtually all acts, regardless of motivation, associated
with the prosecutor's function as an advocate.” Kroemer v.
Tantillo, 758 F. App’x 84, 86–87 (2d Cir. 2018). Here, the
challenged conduct of DA Singas, ADA Burke, and ADA Aloise, i.e,
preparing and presenting an indictment to the Grand Jury,
unquestionably falls within the scope of their prosecutorial
duties. See Ogunkoya, 913 F.3d at 71 (“The decision to initiate
23
prosecution, what charges to bring, and how to perfect and
consolidate those charges is a quintessential prosecutorial
function.”) (citing Imbler v. Pachtman, 424 U.S. 409, 431, 96 S.
Ct. 984, 47 L. Ed. 2d 128 (1976)); see also Shmueli v. City of
N.Y., 424 F.3d 231, 237 (2d Cir. 2005). Accordingly, DA Singas,
ADA Burke, and ADA Aloise are entitled to absolute immunity with
respect to Plaintiff’s claims seeking monetary damages under
Section 1983, and these claims are thus DISMISSED pursuant to 28
U.S.C. §§ 1915(e)(2)(B), 1915A(b).
D. Claims Against Garber and Legal Aid
Generally, attorneys, whether with the Legal Aid
Society, court-appointed or privately retained, are not state
actors for purposes of § 1983. See Vermont v. Brillon, 556 U.S.
81, 129 S. Ct. 1283, 1291 (2009) (holding that “assigned counsel
ordinarily is not considered a state actor”); Polk County v.
Dodson, 454 U.S. 312, 325, 102 S. Ct. 445 (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.”).
Because Garber and the Legal Aid Society of Nassau County
are not state actors, and Plaintiff seeks to challenge the
traditional functions of counsel to a defendant in a criminal
24
proceeding, these Section 1983 claims are not plausible. See,
e.g., Kirkland v. N.Y.S. Div. of Parole, No. 20-CV-8606, 2020 WL
6729119, at *3 (S.D.N.Y. Nov. 13, 2020) (sua sponte dismissing
Section 1983 claims against Legal Aid attorney). Accordingly,
Plaintiff’s claims against Garber and the Legal Aid Society are
DISMISSED for failure to state a claim pursuant to 28 U.S.C. §§
1915(e)(2)(B)(ii) and 1915A(b)(1).
V. Abstention
Apart from the deficiencies in Plaintiff’s claims as set
forth above, pursuant to Younger and its progeny, the Court must
abstain from adjudicating his remaining claims seeking injunctive
relief.6 In Younger v. Harris, the Supreme Court concluded that
although federal courts have the power to enjoin state criminal
proceedings “when absolutely necessary for protection of
constitutional rights . . . this may not be done, except under
extraordinary circumstances, where the danger of irreparable loss
6 Plaintiff seeks the dismissal of the indictments and his release
from incarceration in this Section 1983 civil rights case. (See
generally Compls.) However, the Supreme Court has established
that habeas relief is the exclusive remedy in federal court for a
state prisoner seeking a release from custody. See Preiser v.
Rodriguez, 411 U.S. 475, 500, 93 S. Ct. 1827, 1841 (1973) (holding
that when a 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.”)
25
is both great and immediate.” 401 U.S. 37, 45, 91 S. Ct. 746
(1971). In Sprint Communications, Inc. v. Jacobs, 571 U.S. 69,
134 S. Ct. 584 (2013), the Supreme Court clarified that Younger
abstention is required in one of three types of state court
proceedings:
First, Younger preclude[s] federal intrusion into
ongoing state criminal prosecutions. Second, certain
civil enforcement proceedings warrant[ ] abstention.
Finally, federal courts [must] refrain[ ] from
interfering with pending civil proceedings involving
certain orders uniquely in furtherance of the state
courts’ ability to perform their judicial functions.
571 U.S. 69, 78, 134 S. Ct. 584 (2013) (internal quotation marks
and citations omitted); see also Lowell v. Vermont Dep’t of
Children & Families, No. 19-CV-3987, 2020 WL 7038598, at *1 (2d
Cir. Dec. 1, 2020) (affirming district court’s application of
Younger abstention).
Here, insofar as Plaintiff seeks to have this Court
intervene in the on-going state court criminal proceedings against
him, this Court must abstain. Dismissing the indictments and
releasing Plaintiff from incarceration as sought by Plaintiff
would surely constitute “federal intrusion into ongoing state
criminal proceedings.” Sprint Commc’ns, 571 U.S. at 70.
Moreover, Plaintiff fails to allege any facts that would bring his
case within any exception to the general requirement that the
26
federal court abstain from intervening in, or enjoining, pending
state criminal proceedings. Accordingly, the Court ABSTAINS from
adjudicating Plaintiff’s constitutional claims seeking injunctive
relief regarding his pending criminal case.
CONCLUSION
For the reasons set forth above, Plaintiff’s
applications to proceed in forma pauperis are GRANTED, and the
Complaints are CONSOLIDATED into the first filed case, Case Number
20-CV-3988(JS)(AKT). The Clerk of Court is DIRECTED to: (1)
consolidate these actions; and (2) mark CLOSED the cases assigned
Case Numbers 20-CV-3989(JS)(AKT) and 20-CV-3990(JS)(AKT). Any
future filings are to be docketed in Case Number 20-CV-3988 only.
Plaintiff’s claims seeking money damages are DISMISSED
pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b). The Court
ABSTAINS from intervening in Plaintiff’s underlying state court
criminal proceeding. Accordingly, Plaintiff’s claims seeking
injunctive relief are DISMISSED WITHOUT PREJUDICE. Additionally,
the Court declines to exercise supplemental jurisdiction over any
remaining state law claims in the Complaints, which are DISMISSED
WITHOUT PREJUDICE, and may be refiled in state court.
Pursuant to 28 U.S.C. § 1915(a)(3), the Court certifies
that any appeal from this Order would not be taken in good faith;
27
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).
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 ____
Dated: December 28 , 2020 Joanna Seybert, U.S.D.J.
Central Islip, New York
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