# Player v. Sini

> District Court, E.D. New York · November 1, 2021

URL: https://www.frixlaw.com/law-library/cases/10307078

## Case

- **Court:** District Court, E.D. New York
- **Decided:** November 1, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10307078

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
DASEAN PLAYER,

Plaintiff,
ORDER
-against- 21-CV-5613(JS)(JMW)

TIMOTHY D. SINI, Suffolk County
District Attorney,

Defendant.
----------------------------------X
APPEARANCES
For Plaintiff: Dasean Player, pro se
559822
Yaphank Correctional Facility
110 Center Drive
Riverhead, New York 119011

For Defendant: No Appearance.

SEYBERT, District Judge:

On or around October 4, 2021, pro se plaintiff Dasean
Player (“Plaintiff”) commenced this action while incarcerated by
filing an unsigned Complaint pursuant to 42 U.S.C. § 1983 (“Section
1983”) along with an application to proceed in forma pauperis
(“IFP”) and a Prisoner Authorization form pursuant to the Prison
Litigation Reform Act (“PLRA”). (Compl., ECF No. 1; IFP App., ECF
No. 2; PLRA Form, ECF No. 3.) By Notice of Deficiency dated

1 Plaintiff has another case in this Court, 21-CV-3552, wherein he
has just filed a Notice of Change of Address to 143 N. 26th Street,
Wyandanch, New York 11798. (See ECF No. 9.) Given that Plaintiff
reports that he has been discharged from the Yaphank Correctional
Facility, the Clerk of the Court is respectfully requested to
update his address on this case.
October 5, 2021, the Court instructed Plaintiff to sign the
enclosed copy of his Complaint and to return it within fourteen
(14) days. (See ECF No. 4.) Plaintiff timely filed a signed

Amended Complaint, which restated without modification Plaintiff’s
substantive allegations, as summarized below. (See ECF No. 8.)
For the reasons that follow, Plaintiff’s IFP application
is GRANTED; however, his Complaint is DISMISSED.
BACKGROUND
Plaintiff, using the Court’s form complaint for Civil
Rights actions under Section 1983, seeks the dismissal of state
criminal charges against him by Suffolk County District Attorney
Timothy D. Sini (“DA Sini”), the sole defendant in this case.2
(See generally Compl.) In addition, Plaintiff seeks to recover a
damages award in the sum of $20 million. (Id. ¶ III.) In its
entirety, the sparse Complaint alleges3:

Timothy Sini knows and has the authority to dismiss the
criminal charges against the Plaintiff after Plaintiff
submitted to a DNA that exonerated him as being the
driver of a car chase and crash. Timothy Sini having
this knowledge via DNA testing see Exhibit A. Still
refuses to release defendant thus violated Plaintiffs
6th and 14th Amendments.

2 According to the information maintained by the New York State
Unified Court System on its public database, Plaintiff is being
prosecuted in the Suffolk County First District Court under Case
No: CR-028720-20SU on petit larceny charges pursuant to New York
Penal Law § 155.25.

3 Excerpts from the Complaint are reproduced here exactly as they
appear in the original. Errors in spelling, punctuation, and
grammar have not been corrected or noted.
Compl. ¶ II.4 As for a description of his injuries and medical
treatment needed and/or received, Plaintiff alleges that:
I am suffering mental and physical anguish. I
received serious injuries due to the accident
and suffers severally due to the lack of
physical therapy.

(Id. ¶ II.A.)
DISCUSSION
I. Plaintiff’s In Forma Pauperis Application is Granted
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
IFP application is GRANTED.
II. Analysis
A. Consideration of the Complaint Under 28 U.S.C. § 1915
Section 1915 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

4 Although Plaintiff references “Exhibit A” in the Complaint, no
exhibits were received by the Court with his submission.
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; Avant v. Miranda, No. 21-CV-0974, 2021 WL
1979077, at *2 (E.D.N.Y. May 18, 2021).
Courts are obligated to construe the pleadings of a pro
se plaintiff liberally and to interpret them to raise the
“strongest [claims] that they suggest.” Triestman v. Fed. Bureau
of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation
marks and citations omitted) (emphasis in original); Harris v.
Mills, 572 F.3d 66, 72 (2d Cir. 2009). “But the ‘special
solicitude’ in pro se cases, has its limits –- to state a claim,
pro se pleadings still must comply with Rule 8 of the Federal Rules
of Civil Procedure, which requires a complaint to make a short and
plain statement showing that the pleader is entitled to relief.”

Wynn v. Regus Mgmt. Grp. LLC, No. 21-CV-3503, 2021 WL 2018967, at
*1 (S.D.N.Y. May 17, 2021) (quoting Triestman, 470 F.3d at 475).
B. Abstention
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
is both great and immediate.” 401 U.S. 37, 45 (1971). In Sprint
Communications, Inc. v. Jacobs, 571 U.S. 69 (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 Younger
abstention. Finally, federal courts should 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. at 78 (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 charges 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
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. However, because
Plaintiff also seeks a monetary damages award, the Court next
addresses such claims.
C. Section 1983
Section 1983 provides that:
Every 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. 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 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.” Rodriguez v.
Shoprite Supermarket, No. 19-CV-6565, 2020 WL 1875291, at *2
(E.D.N.Y. Apr. 15, 2020) (internal quotation marks and citation
omitted). Insofar as Plaintiff seeks monetary damages pursuant to
Section 1983, the Court finds that his claims are implausible for
the reasons that follow.
1. Malicious Prosecution
Affording the pro se Complaint a liberal construction,
it appears that Plaintiff alleges a malicious prosecution claim
against DA Sini. To state a claim for malicious prosecution, a
plaintiff must allege that criminal proceedings were initiated or
continued against him, with malice and without probable cause, and
were terminated in his favor. See Mitchell v. City of New York,
841 F.3d 72, 79 (2d Cir. 2016); see also Lanning v. City of Glens
Falls, 908 F.3d 19, 22 (2d Cir. 2018) (plaintiff must allege facts
suggesting “that the underlying criminal proceeding ended in a

manner that affirmatively indicates his innocence”). “Claims of
malicious prosecution accrue when the relevant criminal
proceedings terminate in a plaintiff’s favor.” Lesane v. Doe 1,
No. 21-CV-4746, 2021 WL 3173056, at *3–5 (S.D.N.Y. July 26, 2021)
(citing Bumbury v. City of New York, 62 A.D. 3d 621 (N.Y. App.
Div. 1st Dep’t 2009)).
Here, Plaintiff fails to allege facts that reasonably
suggest a plausible malicious prosecution claim. Given the on-
going criminal prosecution, Plaintiff has not -- and cannot at
this juncture -- allege that the proceedings ended in a manner
that affirmatively indicates Plaintiff’s innocence. Indeed, a
conviction would be fatal to his malicious prosecution claim,

because the proceedings would not terminate in his favor. Thus,
as is readily apparent, Plaintiff’s malicious prosecution claim is
premature, at best. Given that this claim is implausible at this
time, it is DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. §§
1915(e)(2)(B), 1915A(b).
D. Immunity
1. Prosecutorial Immunity
It is well established that prosecutors are absolutely
immune from civil suits for acts committed within the scope of
their official duties where the challenged activities are not
investigative in nature, but rather are “intimately associated
with the judicial phase of the criminal process.” Imbler v.

Pachtman, 424 U.S. 409, 430 (1976); see also Simon v. City of New
York, 727 F.3d 167, 171 (2d Cir. 2013). The actions for which a
prosecutor is entitled to absolute immunity “include deciding
whether to bring charges and presenting a case to a grand jury or
a court.” Simon, 727 F.3d at 171; Shmueli v. City of New York,
424 F.3d 231, 237 (2d Cir. 2005).
Here, Plaintiff challenges DA Sini’s decision to charge
him as the driver of the vehicle and alleges that, although DA
Sini knows that DNA testing “exonerated [Plaintiff] as being the
driver,” he “still refuses to release Defendant.” (Compl. ¶ II.)
The decision to bring charges and to pursue such charges are
squarely within the scope of the judicial phase of the criminal

process for which DA Sini is absolutely immune from suit.
Accordingly, even if Plaintiff had alleged a plausible malicious
prosecution claim (see infra at 6-7), DA Sini is shielded from
suit by absolute prosecutorial immunity. Accordingly, this claim
is DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b)(2).
2. The Eleventh Amendment
Because Plaintiff seeks to recover a monetary award
against the Defendant in his official capacity, this claim is also
implausible because he is immune from suit under the Eleventh
Amendment. Papasan v. Allain, 478 U.S. 265, 276 (1986); Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98–100 (1984).
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). The “Eleventh
Amendment . . . bars [plaintiff] from pursuing a claim for damages
against the individual defendants in their official capacities.”
Darcy v. Lippman, 356 F. App’x 434, 436–37 (2d Cir. 2009); Torres
v. Spota, No. 19-CV-00296, 2019 WL 3035522, at *3 n.4 (E.D.N.Y.
July 10, 2019) (citing Ying Jing Gan v. City of New York, 996 F.2d
522, 536 (2d Cir. 1993) (when a district attorney decides whether
to prosecute, he or she is representing the State not the county
and is, thus, entitled to invoke Eleventh Amendment immunity)).
Here, because Plaintiff’s claim for damages against a
state employee sued in his official capacity is barred by the

Eleventh Amendment, Kentucky v. Graham, 473 U.S. 159, 165-67, and
n.14 (1985) (suit for damages against state officer in official
capacity is barred by the Eleventh Amendment), it is thus DISMISSED
pursuant to 28 U.S.C. §§ 1915(e)(2)(b); 1915A(b).5

5 The Court notes that Plaintiff’s Section 1983 claim against DA
Sini in his official capacity must be dismissed for the additional
reason that “[n]either a state nor . . . an official of that agency
sued in his or her official capacity is a ‘person’ under § 1983.”
Spencer v. Doe, 139 F.3d 107, 111 (2d Cir. 1998); see also Will v.
Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989).
III. 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. Notably, Plaintiff has another action
in this Court, 21-CV-3552, with similar claims against different
defendants arising from the same events. Because the defects in
Plaintiff’s claims against DA Sini are substantive and would not
be cured if afforded an opportunity to amend, leave to amend the
Complaint is DENIED.
CONCLUSION
For the reasons stated, IT IS HEREBY ORDERED that
Plaintiff’s IFP application (ECF No. 2) is GRANTED; and
IT IS FURTHER ORDERED that Plaintiff’s Section 1983

claims against DA Sini are DISMISSED WITH PREJUDICE pursuant to 28
U.S.C. §§ 1915(e)(2)(B), 1915A; and
IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. §
1915(a)(3), the Court certifies that any appeal from this Order
would not be 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); and
IT IS FURTHER ORDERED that the Clerk of the Court shall:
(1) ENTER JUDGMENT and mark this case CLOSED; and (2) mail a copy
of the Order to the pro se Plaintiff at the residential address
set forth in Footnote 1.
SO ORDERED.

/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.

Dated: November 1 , 2021
Central Islip, New York

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10307078. Public record. Not legal advice.