Cass v. The United States District Court, Eastern District of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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MICKEY CASS,

Plaintiff, MEMORANDUM AND ORDER

20-CV-6071 (KAM)

-against-

UNITED STATES DISTRICT COURT,

EASTERN DISTRICT OF NEW YORK; HON.

WILLIAM F. KUNTZ, II; HON. ROBERT

M. LEVY; NEW YORK STATE SUPREME

COURT, COUNTY OF KINGS; HON. SHAREN

D. HUDSON; NEW YORK STATE SUPREME

COURT, APPELLATE DIVISION SECOND

DEPARTMENT; CHERYLE E. CHAMBERS;

KINGS COUNTY DISTRICT ATTORNEY’S

OFFICE; CHARLES J. HYNES; ERIC

GONZALEZ;ANNA SIGGA NICOLZZI;

JOHN GIANATTI, JR.; JOYCE SLEVIN;

LEONARD JOBLOVE; VINCENT HARRIS;

GERRARD BAKER; CAREY YU; JOHN

S. STELLA; NEW YORK CITY POLICE

DEPARTMENT 70TH PRECINCT; FRANK

BYRNE; CHRISS THOMPKINSON; ROBERT

SOMMERS; C. PLATT; NYS DEPARTMENT

OF CORRECTION AND COMMUNITY

SUPERVISION (“DOCCS”); ANTHONY

ANNUCCI; KEVIN P. BRUEN; JONATHON

LIPPMAN; STEVEN VAISELBERG; HELENA

JASSEN; JOHN FIMA,

Defendants.1

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1 The Clerk of Court is respectfully requested to amend the docket

and case caption as noted herein.

1

KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Mickey Cass, an inmate currently confined at

the Green Haven Correctional Facility, in Stormville, New York,

filed the instant pro se complaint in the United States District

Court for the Western District of New York (the “WDNY”) and

alleges violations of his civil rights during his criminal

prosecution and subsequent incarceration and seeks injunctive

relief and monetary damages. (See Case No. 20-cv-6661.) By

Memorandum and Order dated November 24, 2020, the WDNY granted

Plaintiff’s request to proceed in forma pauperis (“IFP”) and

severed and transferred the claims against the following

defendants to the Eastern District of New York: the United

States District Court, Eastern District of New York; Hon.

William F. Kuntz, II; Hon. Robert M. Levy; New York State

Supreme Court, County of Kings; Hon. Sharen D. Hudson; New York

State Supreme Court, Appellate Division Second Department; Hon.

Cheryle E. Chambers; Kings County District Attorney’s Office;

Charles J. Hynes; Eric Gonzalez; Anna Sigga Nicolzzi; John

Gianatti, Jr.; Joyce Slevin; Leonard Joblove; Vincent Harris;

Gerrard Baker; Carey Yu; John S. Stella; New York City Police

Department 70th Precinct; Frank Byrne; Chriss Thompkinson;

Robert Sommers; C. Platt; NYS Department of Correction and

Community Supervision (“DOCCS”); Anthony Annucci; Kevin P.

2

Bruen; Jonathon Lippman; Steven Vaiselberg; Helena Jassen; and

John Fima. (See Case No. 20-cv-6661, ECF No. 9.) For the

reasons set forth below, Plaintiff’s request for injunctive

relief is denied and the action is dismissed for failure to

state a claim upon which relief may be granted.

BACKGROUND

The following facts are drawn from Plaintiff’s

pleading, the allegations of which are assumed to be true for

purposes of this Memorandum and Order. The Court notes that

Plaintiff’s pleading is voluminous at 131 pages with an

additional 694 pages of exhibits. Plaintiff’s allegations

pertain to alleged misconduct during the investigation, criminal

prosecution, and post-conviction proceedings related to his

murder conviction in Kings County, New York in the mid-2000s.

(See generally ECF No. 1 Complaint (“Compl.”).) After the

September 25, 2003 death of Victor Dombrova in Brooklyn, New

York, police officers arrested Plaintiff in Miami, Florida on

October 3, 2003. (See ECF No. 1-1, Appendix of Exhibits at 15-

16, 21, 23-24; ECF No. 1-3 at 18, 23, 25.)2

On October 26, 2004, Plaintiff was convicted of Murder

in the Second Degree and sentence was imposed. People v. Cass,

2 The pagination used herein refers to the PDF page number presented in

the ECF stamp at the top of each document.

3

914 N.Y.S.2d 176, 177 (N.Y. App. Div. 2d Dep’t 2010), aff'd, 965

N.E.2d 918 (N.Y. 2012). Plaintiff is currently incarcerated

pursuant to said conviction and is serving a sentence of twenty-

five years to life. On August 14, 2020, the Honorable Judge

William F. Kuntz denied Plaintiff’s petition for a writ of habeas

corpus filed pursuant to 28 U.S.C. § 2254. See Cass v. Chappius,

No. 15-CV-3261 (WFK), ECF No. 70.

Plaintiff alleges that the New York City Police failed

to secure an arrest warrant before “kidnap[ping]” him from Miami,

Florida in October 2003. (Compl. at 34.) Once he was returned

to New York, Plaintiff alleges that he was not afforded

assistance of counsel nor advised of the charges which were

pending against him. (Id. at 41.) Plaintiff next alleges a vast

conspiracy between Judicial Defendants, police officers and

District Attorney Defendants to deprive him of his right to a

fair disposition in his criminal action. Plaintiff asserts that

the Kings County District and Assistant District Attorneys Hynes,

Nicolazzi, Gianatti Jr., Platt, Thompkinson, and Byrne conspired

to “coerce ‘False Eye-Witness Accounts’” and knowingly filed

false statements. (Id. at 113-14.) Next, Plaintiff alleges that

several Judges “conspired” with the District Attorney Defendants

“to perpetrate a Fraud” upon the government. (Id. at 117.)

Plaintiff also appears to allege that the New York State

4

Department of Corrections and Community Supervision (“DOC.CS”)

conspired with the District Attorney defendants “to bring about

the sentient -- and physical -- death of Plaintiff.” (Id. at

120.) Plaintiff seeks to be placed in the witness protection

program and monetary damages. (Id. at 124-26.)

STANDARD OF REVIEW

A complaint must plead “enough facts to state a claim

to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). A claim is plausible “when the

plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the

misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d

Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

Although all allegations contained in the complaint are assumed

to be true, this tenet is “inapplicable to legal conclusions.”

Iqbal 556 U.S. at 678. It is axiomatic that pro se complaints

are held to less stringent standards than pleadings drafted by

attorneys and the Court is required to read the plaintiff's pro

se complaint liberally and interpret it as raising the strongest

arguments it suggests. Erickson v. Pardus, 551 U.S. 89 (2007);

Hughes v. Rowe, 449 U.S. 5, 9 (1980); Sealed Plaintiff v. Sealed

Defendant #1, 537 F.3d 185, 191-93 (2d Cir. 2008).

5

In addition to requiring sufficient factual matter to

state a plausible claim to relief, pursuant to Rule 8 of the

Federal Rules of Civil Procedure, Plaintiff must provide a short,

plain statement of claim against each defendant named so that

they have adequate notice of the claims against them. Iqbal, 556

U.S. 678 (Rule 8 “demands more than an unadorned, the-defendant-

unlawfully-harmed-me accusation.”). A pleading that only

“tenders naked assertions devoid of further factual enhancement”

will not suffice. Id. (internal citations and alterations

omitted). Plaintiff must provide facts sufficient to allow each

Defendant to have a fair understanding of what the plaintiff is

complaining about and to know whether there is a legal basis for

recovery. See Twombly v. Bell, 425 F.3d 99, 106 (2d Cir. 2005)

(defining "fair notice" as “‘that which will enable the adverse

party to answer and prepare for trial, allow the application of

res judicata, and identify the nature of the case so that it may

be assigned the proper form of trial.'" (quoting Simmons v.

Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995))).

Nonetheless, under 28 U.S.C. § 1915A, a district court

“shall review, before Docketing, if feasible or, in any event, as

soon as practicable after Docketing, a complaint in a civil

action in which a prisoner seeks redress from a governmental

entity or officer or employee of a governmental entity.” 28

6

U.S.C. § 1915A. Upon review, a district court shall dismiss a

prisoner’s complaint sua sponte if the complaint is “frivolous,

malicious, or fails to state a claim upon which relief may be

granted; or seeks monetary relief from a defendant who is immune

from such relief.” Id.; Liner v. Goord, 196 F.3d 132, 134 & n.1

(2d Cir. 1999) (noting that under PLRA, sua sponte dismissal of

frivolous prisoner complaints is not only permitted but

mandatory); see also Tapia-Ortiz v. Winter, 185 F.3d 8, 11 (2d

Cir. 1999). Similarly, pursuant to the in forma pauperis

statute, a court must dismiss an action if it determines that it

“(i) is frivolous or malicious, (ii) fails to state a claim upon

which relief may be granted, or (iii) seeks monetary relief from

a defendant who is immune from such relief.” 28 U.S.C. §

1915(e)(2)(B).

DISCUSSION

I. Plaintiff’s RICO Claims

Plaintiff alleges that Defendants violated his

constitutional rights and engaged in a pattern of racketeering

activity in violation of the Racketeer Influenced and Corrupt

Organizations Act (RICO) 18 U.S.C. §§ 1961, et seq. (See Compl.

at 111-13.) To establish a violation of the RICO statute, 18

U.S.C. § 1962(c), a plaintiff must show “‘(1) conduct (2) of an

enterprise (3) through a pattern (4) of racketeering activity.’”

7

DeFalco v. Bernas, 244 F.3d 286, 305–06 (2d Cir. 2001) (quoting

Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985) and

citing Cofacredit, S.A. v. Windsor Plumbing Supply Co. Inc., 187

F.3d 229, 242 (2d Cir. 1999); Azrielli v. Cohen Law Offices, 21

F.3d 512, 520 (2d Cir. 1994)). These elements must be

established as to each individual defendant. Id. (citing United

States v. Persico, 832 F.2d 705, 714 (2d Cir. 1987) (“The focus

of section 1962(c) is on the individual patterns of racketeering

engaged in by a defendant, rather than the collective activities

of the members of the enterprise, which are proscribed by section

1962(d).”))

The terms “enterprise,” “racketeering activity,” and

“pattern of racketeering activity” are defined in 18 U.S.C. §

1961. A RICO enterprise “includes any individual, partnership,

corporation, association, or other legal entity, and any union or

group of individuals associated in fact although not a legal

entity.” 18 U.S.C. § 1961(4). “Racketeering activity” is

broadly defined to encompass a variety of state and federal

offenses including, inter alia, murder, kidnaping, gambling,

arson, robbery, bribery and extortion. See 18 U.S.C. § 1961(1).

“To establish a RICO conspiracy, a plaintiff must plead

that a defendant agreed to participate in the affairs of the

enterprise through a pattern of racketeering activity.” N.Y.

8

Dist. Council of Carpenters Pension Fund v. Forde, 939 F. Supp.

2d 268, 282 (S.D.N.Y. 2013). “In doing so, a defendant need not

agree specifically to commit at least two predicate acts;

instead, a defendant may violate § 1962(d) if he or she

‘commit[s] at least two acts of racketeering activity’ and ‘knew

about and agreed to facilitate the scheme.’ ” Angermeir v. Cohen,

14 F. Supp. 3d 134, 154 (S.D.N.Y. 2014) (citing Salinas v. United

States, 522 U.S. 52, 66 (1997)). A plaintiff must allege facts

that would demonstrate such an agreement. See Hecht v. Commerce

Clearing House, Inc., 897 F.2d 21, 25 (2d Cir. 1990).

Here, Plaintiff attempts to argue that the Defendants

acted as an enterprise in furtherance of a conspiracy to commit

fraud and obstruct justice. (Compl. at 113.) The complaint,

however, is devoid of any plausible, credible factual allegations

of conspiracies or agreements to act. Consequently, Plaintiff’s

RICO claims are dismissed. See 28 U.S.C. § 1915A(b).

In any event, even if plaintiff had alleged facts

alleging a conspiracy to obstruct justice, the statute of

limitations governing civil RICO claims is four years. The

Second Circuit applies a “discovery accrual rule” to determine

when the limitation period starts to run. Cohen v. S.A.C.

Trading Corp., 711 F.3d 353, 361 (2d Cir. 2013); see also Rotella

v. Wood, 528 U.S. 549, 552 (2000). Plaintiff fails to allege any

9

credible facts sufficient to show that he discovered the alleged

conspiracy to obstruct justice or commit fraud within the past

four years. Thus, his RICO claim is untimely.

II. Plaintiff’s Civil Rights Claims

Because Plaintiff alleges that his constitutional

rights were violated by employees of both the federal and state

governments, the Court liberally construes Plaintiff’s complaint

as asserting claims under Section 1983 and Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

See Iqbal, 556 U.S. at 675 (2009) (noting that Bivens is the

federal analog to suits brought against state officials under §

1983).

A. Plaintiff’s Claims Against the Judicial Defendants

Plaintiff alleges that U.S. District Judge William F.

Kuntz, II and Magistrate Judge Robert M. Levy unlawfully limited

the scope of discovery in his 28 U.S.C. § 2254 action. (Compl.

at 49-56, 62-67.) He further asserts that Judge Cheryle E.

Chambers of the New York Supreme Court, Appellate Division,

Second Department, denied him leave to appeal the denial of his

N.Y. CPL § 440 motion and that Judge Sharen D. Hudson of the

Kings County Criminal Court denied his request for an extension

of time. (Id. at 75, 108.)

10

It is well-settled that judges have absolute immunity

for acts performed in their judicial capacities. See Mireles v.

Waco, 502 U.S. 9, 11 (1991) (upholding applicability of judicial

immunity in section 1983 actions); Burdick v. Town of Schroeppel,

717 F. App’x 92, 93 (2d Cir. 2018) (summary order) (“Judges

acting in their judicial capacity are absolutely immune from

suit, even where the plaintiff asserts constitutional violations

under § 1983.” (citing Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir.

2009)); Shtrauch v. Dowd, 651 F. App’x 72, 73 (2d Cir. 2016)

(summary order); Hale v. Dearie, No. 19-cv-1257, 2019 WL 1517087,

at *3 (E.D.N.Y. Apr. 8, 2019). “[J]udicial immunity is not

overcome by allegations of bad faith or malice,” and a judge

cannot “be deprived of immunity because the action [the judge]

took was in error . . . or was in excess of [the judge’s]

authority.” Mireles, 502 U.S. at 11–13 (citations and internal

quotation marks omitted) (second alteration in original);

Immunity may only be overcome where (1) the challenged acts were

not taken in the judge’s judicial capacity or (2) the acts,

“though judicial in nature, [were] taken in the complete absence

of all jurisdiction.” Id. at 12; Pelczar v. Kelly, No. 18-cv-

6855, 2018 WL 6575457, at *2 (E.D.N.Y. Dec. 13, 2018),

reconsideration denied, No. 18-cv-6855, 2019 WL 2304651 (E.D.N.Y.

May 29, 2019).

11

Here, Plaintiff’s allegations against the Judges stem from

Plaintiff’s dissatisfaction with the outcomes of his criminal

proceeding and subsequent § 2254 petition. Plaintiff fails to

allege any facts to suggest that the actions taken by the Judges

were not taken within their judicial capacity or that the Judges

acted in excess of their jurisdiction. Accordingly, Plaintiff’s

claims against Judges William F. Kuntz, II, Robert M. Levy,

Cheryle E. Chambers, Jonathan Lippman, and Sharen D. Hudson are

dismissed for failure to state a claim upon which relief may be

granted and because he seeks damages from Defendants who are

immune. See 28 U.S.C. § 1915A(b); see, e.g., Wingate v. Grasso,

No. 11-cv-0357 (ARR), 2011 WL 835813, at *1 (E.D.N.Y. Mar. 1,

2011) (dismissing claims against judges due to absolute

immunity); Rodriguez v. Trager, No. 10-cv-0781 (ARR) (LB), 2010

WL 889545, at *2 (E.D.N.Y. Mar. 8, 2010) (same). Plaintiff’s

claims against Judges William F. Kuntz, II, Robert M. Levy,

Cheryle E. Chambers, Jonathan Lippman, and Sharen D. Hudson are

also frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i), (iii); Montero

v. Travis, 171 F.3d 757, 760 (2d Cir. 1999) (“A complaint will be

dismissed as ‘frivolous’ when ‘it is clear that the defendants

are immune from suit.’”).

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B. Plaintiff’s Claims Against the NYC Police Department

The New York City Charter provides that “[a]ll actions

and proceedings for the recovery of penalties for the violation

of any law shall be brought in the name of the City of New York

and not in that of any agency, except where otherwise provided by

law.” N.Y.C. Charter Ch. 17 § 396. The New York City Police

Department is an agency of the City of New York that lacks an

independent legal existence and is not a suable entity. See,

e.g., Jenkins v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir.

2007) (New York City Police Department is not a suable entity);

Mehmeti v. Brown, No. 20-cv-1493, 2020 WL 4350248, at *2

(E.D.N.Y. July 29, 2020) (dismissing plaintiff’s claim “against

the NYPD because it is not a suable entity”). In this case,

Plaintiff alleges no plausible claims against the New York City

Police Department and, therefore, his claims are dismissed for

failure to state a claim. See 28 U.S.C. § 1915A(b).

C. Plaintiff’s Claims Against the United States District

Court and State Supreme Courts

Plaintiff’s claims against the United States District

Court-EDNY and New York State Supreme Court similarly fail to

state a claim for relief. First, because the United States has

not waived immunity for Plaintiff’s claims, “sovereign immunity

shields the Federal Government . . . from suit.” See F.D.I.C. v.

13

Meyer, 510 U.S. 471, 475 (1994). Next “as a general rule, state

governments may not be sued in federal court unless they have

waived their Eleventh Amendment immunity, or unless Congress has

abrogated the states' Eleventh Amendment immunity . . . .”

Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009). New York

has not waived its Eleventh Amendment immunity to suit in federal

court, and Congress did not abrogate the states’ immunity in

enacting § 1983. See Trotman v. Palisades Interstate Park

Comm'n, 557 F.2d 35, 40 (2d Cir. 1977). Because the New York

Supreme Court, is part of the New York State Unified Court

System, see N.Y. Const., Art. 6, § 1(a), the Eleventh Amendment

bars Plaintiff’s claims against the state court from proceeding

in federal court. See Gollomp, 568 F.3d at 368 (holding that the

New York State Unified Court System “is unquestionably an ‘arm of

the State,’ and is entitled to Eleventh Amendment sovereign

immunity.”); Murray v. Guzman, No. 19-cv-1959, 2019 WL 1745744,

at *3 (S.D.N.Y. Apr. 17, 2019). Accordingly, Plaintiff’s claims

against the United States District Court for the Eastern District

of New York, the New York State Supreme Court, and the Appellate

Division-Second Department are dismissed. See 28 U.S.C. §

1915A(b).

14

D. Plaintiff’s Claims Against DOCCS, Anthony Annucci, and

Kevin P Bruen

Plaintiff’s claims brought pursuant to 42 U.S.C. § 1983

against DOCCS are barred by Eleventh Amendment immunity. DOCCS,

as an arm of the State of New York, enjoys Eleventh Amendment

immunity from suit under § 1983. See Madison v. New York State

Dep't of Corrs., No. 19-cv-3401, 2019 WL 4933594, at *1-2

(S.D.N.Y. Oct. 4, 2019) (“DOCCS, as an arm of the state, stands

in the same position as the State of New York.”). Accordingly,

to the extent that Plaintiff seeks to bring suit against Anthony

Annucci as Acting Commissioner of DOCCS and Kevin P. Bruen as

Deputy Commissioner and Counsel for DOCCS, his claim fails as

DOCCS officials enjoy Eleventh Amendment immunity from suit under

§ 1983 for damages in their official capacities. See Marshall v.

Lilley, No. 19-cv-11829, 2020 WL 905989, at *6 (S.D.N.Y. Feb. 21,

2020) (“the Eleventh Amendment bars any official-capacity claim

for damages under § 1983 against these defendants, who are all

DOCCS employees and thus state agents”). The Court therefore

dismisses Plaintiff’s claims against DOCCS, Annucci, and Bruen as

frivolous under the doctrine of Eleventh Amendment

immunity. See 28 U.S.C. § 1915(e)(2)(B)(i), (iii).

15

E. Plaintiff’s Claims Against the District Attorney

Defendants

To the extent that Plaintiff alleges claims against the

Office of the Kings County District Attorney, the claims are

dismissed, as a district attorney’s office is not a suable

entity. See, e.g., Barreto v. Cty. of Suffolk, 455 F. App’x 74,

76 (2d Cir. 2012) (summary order) (finding a district attorney’s

office is “not an entity capable of being sued” (citing Ying Jing

Gan v. City of New York, 996 F.2d 522, 535–36 (2d Cir. 1993)));

Harvey v. Queens County D.A., No. 18-cv-5373, 2020 WL 837357, at

*1–3 (E.D.N.Y. Feb. 20, 2020) (same).

Moreover, prosecutors are entitled to absolute immunity

for their acts that are intimately associated with the judicial

phase of the criminal process and their role as advocates. See

Van de Kamp v. Goldstein, 555 U.S. 335, 341 (2009)

(“[P]rosecutorial actions that are intimately associated with the

judicial phase of the criminal process ... are absolutely immune

from liability in § 1983 lawsuits.”); Ogunkoya v. Monaghan, 913

F.3d 64, 69 (2d Cir. 2019) (“Absolute immunity bars § 1983 suits

against prosecutors for their role ‘in initiating a prosecution

and in presenting the State’s case.’” (quoting Imbler v.

Pachtman, 424 U.S. 409, 431 (1976))).

16

Here, Plaintiff alleges that Assistant District

Attorney Anna Nicolzzi and former Kings County District Attorney

Charles J. Hynes conspired to present perjured testimony. (Compl.

at 46-47.) Plaintiff further alleges that Assistant District

Attorney John Gianatti Jr., Joyce Slevin and Leonard Joblove

fabricated evidence and coerced witnesses. (Id. at 50.) Even if

true, prosecutors engaged in this advocacy-related action --

allegedly presenting perjured testimony -- are entitled absolute

immunity. See Shmueli v. City of New York, 424 F.3d 231, 237 (2d

Cir. 2005) (holding that “[a] prosecutor is entitled to absolute

immunity despite allegations of his knowing use of perjured

testimony” (citation, quotation marks, and alterations omitted));

Brown v. County of Kings, No. 19-cv-6755, 2020 WL 4431521, at *3

(E.D.N.Y. July 30, 2020) (dismissing claims against two

prosecutors due to absolute immunity). Accordingly, Plaintiff’s

claims against Charles J. Hynes, former District Attorney; Eric

Gonzalez, current District Attorney;3 and Assistant District

Attorneys, Anna Nicolzzi, John Gianatti Jr., Joyce Slevin, and

3 A plaintiff cannot recover against a defendant under § 1983 solely on a

theory of vicarious liability or respondeat superior. See, e.g., Iqbal, 556

U.S. at 676 (“Because vicarious liability is inapplicable to Bivens and § 1983

suits, a plaintiff must plead that each Government-official defendant, through

the official’s own individual actions, has violated the Constitution.”);

Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003) (“[S]upervisor liability

in a § 1983 action depends on a showing of some personal responsibility, and

cannot rest on respondeat superior.”). Plaintiff fails to allege the personal

involvement of Eric Gonzalez, thus the claims against him are dismissed.

17

Leonard Joblove are dismissed for failure to state a claim. See

28 U.S.C. § 1915A(b).

In addition, Plaintiff alleges that Vincent Harris,

Gerrard Baker, and Carey Yu, who are alleged to be media services

technicians with the Kings County District Attorney office

tampered with evidence in his case. (Compl. at 17-18.)

Plaintiff fails to allege sufficient, plausible facts in support

of his claim and thus his claims against employees of the Kings

County District Attorney’s Office are dismissed. See 28 U.S.C. §

1915A(b).

F. Plaintiff’s Claims Against the Trial Witnesses

Plaintiff alleges that trial witnesses Steven

Vaiselberg, Helena Janssen, and John Fima conspired with the

District Attorney’s office “to perpetrate a Fraud upon the United

States Government and injure Plaintiff.” (Compl. at 25-26.)

Trial witnesses have absolute immunity with respect to any § 1983

claims arising from their testimony, even if it is alleged that

such testimony was perjured. See Briscoe v. LaHue, 460 U.S. 325,

335–36 (1983) (affirming dismissal of § 1983 claims arising from

police officers' perjurious testimony during trial); Sykes v.

James, 13 F.3d 515, 519 (2d Cir. 1993) (holding that the

plaintiff's due process claim was barred because the defendant,

as a witness, was absolutely immune from liability for the

18

evidence he furnished in the proceeding at issue); Grant v.

Cafferri, No. 19-cv-2148, 2019 WL 6526007, at *9 (E.D.N.Y. Dec.

4, 2019) (dismissing § 1983 claims against trial witnesses due to

witness immunity). Accordingly, Plaintiff's claims based on the

trial testimony of Vaiselberg, Janssen, and Fima fail to state a

claim upon which relief may be granted and are dismissed. See 28

U.S.C. § 1915(e)(2)(B).

G. Plaintiff’s Claim Against his Defense Attorney

Plaintiff brings suit against John S. Stella, the

criminal defense lawyer who represented him at the time of his

2004 criminal trial. Public defenders such as Legal Aid

attorneys, court-appointed counsel, and private attorneys,

however, do not act under the color of state law merely by virtue

of their position. See Polk Cty. v. Dodson, 454 U.S. 312, 318-19

(1981) (holding that public defenders do not act “under color of

state law” and therefore are not subject to suit under 42 U.S.C.

§ 1983); Bourdon v. Loughren, 386 F.3d 88, 90 (2d Cir.

2004); Shorter v. Rice, No. 12-cv-0111, 2012 WL 1340088, at *4

(E.D.N.Y. Apr. 10, 2012) (“[I]t is axiomatic that neither public

defenders, such as Legal Aid attorneys, nor court-appointed

counsel, nor private attorneys, act under the color of state law

merely by virtue of their position.”). Therefore, Plaintiff’s §

19

1983 claims against John S. Stella are dismissed for failure to

state a claim. See 28 U.S.C. § 1915(e)(2)(B).

H. Plaintiff’s Claims Against the Police Officers

Plaintiff alleges that Police Officers Frank Byrne,

Chriss Thompkinson, Robert Sommers, and C. Platt violated his

rights by collectively conspiring and tampering with evidence

which led to his conviction.4 Plaintiff’s claims are barred by

the favorable termination rule set forth in Heck v. Humphrey, 512

U.S. 477 (1994), which holds that a state prisoner’s § 1983

action is barred, no matter the relief sought (damages or

equitable relief), if success in that action would necessarily

demonstrate the invalidity of confinement or its duration. See

also Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005). To the

extent that Plaintiff seeks to argue that he was falsely arrested

and denied a fair trial by the actions of the Officers, his

claims call into question the validity of his conviction, and

because his conviction has not been overturned or otherwise

4 The statute of limitations for § 1983 claims is found in the “general or

residual [state] statute [of limitations] for personal injury actions.” Pearl

v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002) (quoting Owens v. Okure,

488 U.S. 235, 249-50 (1989)). In New York, that period is three years. See

N.Y. C.P.L.R. § 214(5). Section 1983 claims generally accrue when a plaintiff

knows or has reason to know of the injury that is the basis of the claim.

Hogan v. Fischer, 738 F.3d 509, 518 (2d Cir. 2013). Plaintiff’s claims

accrued in 2003 and 2004 when he was arrested and subsequently prosecuted and

appear to be time-barred.

20

invalidated, the favorable termination rule bars these § 1983

claims. See 28 U.S.C. § 1915A(b).

Finally, Plaintiff’s vague and conclusory allegations

that the Officers engaged in a conspiracy to violate Plaintiff’s

constitutional rights must be dismissed. See Ciambriello v.

County of Nassau, 292 F.3d 307, 325 (2d Cir. 2002) (dismissing

conspiracy allegations where they were found “strictly

conclusory”); see also Walker v. Jastremski, 430 F.3d 560, 564 n.

5 (2d Cir. 2005) (“[C]onclusory or general allegations are

insufficient to state a claim for conspiracy under § 1983.”

(citing Ciambriello)); Sommer v. Dixon, 709 F.2d 173, 175 (2d

Cir. 1983) (“A complaint containing only conclusory, vague, or

general allegations of conspiracy to deprive a person of

constitutional rights cannot withstand a motion to dismiss.”);

Castro v. Simon, No. 17-cv-6083, 2019 WL 136692, at *4 (E.D.N.Y.

Jan. 7, 2019).

“A pro se complaint ‘should not be dismissed without

the [c]ourt’s granting leave to amend at least once when a

liberal reading of the complaint gives any indication that a

valid claim might be stated.’” Grullon v. City of New Haven, 720

F.3d 133, 139 (2d Cir. 2013) (alterations omitted) (quoting

Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010)). Although

“court[s] should freely give leave [to amend] when justice so

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requires,” Fed. R. Civ. P. 15(a)(2), “[l]eave to amend may

properly be denied if the amendment would be ‘futile,’ ”

Grullon, 720 F.3d at 140 (alteration omitted) (quoting Foman v.

Davis, 371 U.S. 178, 182 (1962)). “Futility is a determination,

as a matter of law, that proposed amendments would fail to cure

prior deficiencies . . . .” Pyskaty v. Wide World of Cars, LLC,

856 F.3d 216, 224–25 (2d Cir. 2017) (citing Panther Partners Inc.

v. Ikanos Commc'ns, Inc., 681 F.3d 114, 119 (2d Cir. 2012)).

Here, leave to amend is denied as futile due to the numerous

legal deficiencies described above.

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Conclusion

For the foregoing reasons, Plaintiff’s complaint, filed

in forma pauperis, is dismissed pursuant to 28 U.S.C. § 1915A(b);

28 U.S.C. § 1915(e)(2)(B). Plaintiff’s request for injunctive

relief is denied as moot. 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 (1962).

The Clerk of the Court is respectfully requested to

enter judgment in favor of defendants, close the case, mail a

copy of this Memorandum and Order and the Judgment to Plaintiff,

and note service on the docket.

SO ORDERED.

/s/

KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York

Dated: Brooklyn, New York

March 24, 2021

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