Braithwaite v. Collins

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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KESTON BRAITHWAITE,

Plaintiff,

-against- MEMORANDUM & ORDER

22-CV-0161(JS)(AYS)

HONORABLE JOHN B. COLLINS, Justice

Supreme Court, Suffolk County;

TIMOTHY SINI, District Attorney,

Suffolk County; MEAGHAN POWERS,

Assistant District Attorney, Suffolk

County; WAYNE HETER, Suffolk County

Police Department; JOHN DOE, Suffolk

County Police Department; HON. TIMOTHY

P. MAZZEI, Justice Supreme Court;

JACOB KUBETZ, Assistant District

Attorney, Suffolk County; BRIAN M.

KARP, D/SGT. Badge # 0639, Suffolk

County Police Department; MICHAEL

COSGROVE, D/SGT. Badge # 0539,

Suffolk County Police Department;

DANIEL FISCHER, D/SGT. Badge # 0611,

Suffolk County Police Department;

GHYSLINE C. MCBEAN, Badge # 1212,

Suffolk County Police Department;

RICHARD PALAZZOLO, Badge # 1323,

Suffolk County Police Department;

MICHAEL PAPOCCHIA, Suffolk County

Police Department; SEAN C. COMISKEY,

Badge # 1251, Suffolk County Police

Department; CHARLES FLACKER, Badge

# 1334, Suffolk County Police

Department; ERIK M. PERELLI,

D/SGT. Badge # 633, Suffolk County

Police Department; DETECTIVE NEKNEZ,

Badge # 1515, Suffolk County Police

Department; DETECTIVE CIANFROGNA,

Badge # 1475; DETECTIVE KROLIKIEWICZ,

Badge # 1531, Suffolk County Police

Department; DETECTIVE SALEH, Badge #

1533, Suffolk County Police Department;

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DETECTIVE COLBY, Badge # 1656, Suffolk

County Police Department; JOHN DOE #2,

Foreperson/Grand Juror # 8A; JOHN DOE #3,

Assistant Foreperson/Grand Juror

No. 8A; JOHN DOES #4-21; Clerks of

the Court at 210 Center Drive,

Riverhead, NY; JOHN DOE #22, Assistant

District Attorney; SUFFOLK COUNTY POLICE

DEPARTMENT; SUFFOLK COUNTY DISTRICT

ATTORNEY OFFICE; JASON RUSSO, ESQ.;

STEVEN GAITMAN, ESQ.; GAITMAN & RUSSO,

PLLC; and, STEVE FONDULIS, ESQ.,

Defendants.

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APPEARANCES

For Plaintiff: Keston Braithwaite, pro se

759792

Suffolk County Correctional Facility

110 Center Drive

Riverhead, New York 11901

For Defendants: No appearance.

SEYBERT, District Judge:

Before the Court is the application to proceed in forma

pauperis (“IFP”) (hereafter, the “Application”) filed by

incarcerated pro se plaintiff Keston Braithwaite (“Plaintiff”) in

relation to his Amended Complaint filed on March 21, 2022 pursuant

to 42 U.S.C. § 1983 (“Section 1983”). (IFP Application, ECF Nos.

2, 9; Am. Compl., ECF No. 19.) For the reasons that follow,

Plaintiff’s IFP Application is GRANTED; however, his claims

seeking: (1) injunctive relief are sua sponte DISMISSED WITHOUT

PREJUDICE pursuant to Federal Rule of Civil Procedure 12(h)(3);

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and (2) monetary damages are STAYED pending the resolution of the

underlying state criminal proceedings against Plaintiff.

BACKGROUND1

I. Procedural History

On January 10, 2022, Plaintiff filed a 52-page Complaint

using the Court’s Section 1983 Complaint Form with 47 additional,

handwritten pages attached. (See Compl., ECF No. 1.) The

gravamen of Plaintiff’s Complaint is that he is being unfairly

prosecuted in state court during an on-going criminal prosecution.2

(See id., generally.) Plaintiff then filed, inter alia, an

undated 34-page submission that the Court liberally construed as

a Motion to Amend the Complaint.3 (See ECF No. 12.) Given

Plaintiff’s piecemeal approach, by Order dated February 11, 2022,

the Court denied the Moton to Amend without prejudice and ordered

Plaintiff “to file an amended, stand-alone complaint, which is to

1 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.

2 According to the information maintained by the New York State

Office of Court Administration on its public website, Plaintiff is

a pretrial detainee having pled not guilty in Suffolk County Court,

Criminal Term, Case No. 00308C-2020, to a multi-count indictment

including two counts of Operating as a Major Trafficker, a class

A-1 felony, and Conspiracy in the Second Degree, a class B felony.

3 The submission was sworn to on January 30, 2022 and docketed

on February 10, 2022.

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be clearly marked as ‘Amended’ and to bear the case number: ‘No.

22-CV-0161 (JS)(AYS)’” by March 31, 2022. (See Order, ECF No.

13.4) In compliance with the February 2022 Order, on March 21,

2022, Plaintiff timely filed a 243-page Amended Complaint against

43 defendants challenging his on-going state court prosecution.

(See Am. Compl. ECF No. 19.)

II. Amended Complaint

Plaintiff’s Amended Complaint raises 24 causes of action

which largely include Plaintiff’s transcriptions of court

proceedings and exhibits. According to the Amended Complaint, the

investigation leading to Plaintiff’s arrest, his arrest, and his

on-going prosecution are violative of Plaintiff’s constitutional

rights. Plaintiff alleges improprieties with, inter alia,

wiretaps, video surveillance, his arrest, and court appearances

(including the representation by his attorneys), and alleges broad

claims of judicial and prosecutorial misconduct for which

Plaintiff seeks “the dismissal of all charges” in addition to

$ 100 million in compensatory and punitive damages. (See Am.

Compl. generally and at 241-42 (Part III: Relief).)

4 Also available on Westlaw at 2022 WL 426165.

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DISCUSSION

I. Plaintiff’s In Forma Pauperis Application is Granted

Having reviewed his financial status, the Court finds

that Plaintiff is qualified to commence this action without

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

Therefore, Plaintiff’s IFP Application is GRANTED.

II. Consideration of Complaint Under the Section § 1915A Analysis

A. Applicable Law

1. 28 U.S.C. § 1915A

Section 1915A of Title 28 requires federal district

courts to screen complaints brought by prisoners who seek relief

against a governmental entity or an officer or employee of a

governmental entity. See Prison Litigation Reform Act (“PLRA”),

28 U.S.C. § 1915A(a). The Court must dismiss a prisoner’s civil

rights complaint, or any portion of that complaint, that is

frivolous or malicious, fails to state a claim upon which relief

may be granted, or seeks monetary relief from a defendant who is

immune from such relief. 28 U.S.C. § 1915A(b); see also Abbas v.

Dixon, 480 F.3d 636, 639 (2d Cir. 2007). The Court must also

dismiss a complaint without prejudice if the Court lacks subject

matter jurisdiction. See FED. R. CIV. P. 12(h)(3). The Court is

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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 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 (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 (2009) (citation omitted).

The plausibility standard requires “more than a sheer possibility

that a defendant has acted unlawfully.” Id.; 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).

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2. 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, 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 [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. 69, 78 (2013) (internal quotation marks and citations

omitted); see also Lowell v. Vermont Dep’t of Children & Families,

835 F. App’x 637, 638 (2d Cir. Dec. 1, 2020) (summary order)

(affirming district court’s application of Younger abstention).

[Remainder of Page Intentionally Left Blank.]

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B. Application

1. Injunctive Relief

Here, insofar as Plaintiff seeks injunctive relief, this

Court must abstain from intervening in the ongoing state court

criminal proceedings against him. First, dismissing the charges

against Plaintiff would surely constitute the type of “federal

intrusion into ongoing state criminal proceedings” that Younger

proscribed. See 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 state criminal case. See Diamond “D”

Const. Corp. v. McGowan, 282 F.3d 191, 197 (2d Cir. 2002) (“[W]hen

Younger applies, abstention is mandatory and its application

deprives the federal court of jurisdiction in the matter.”); Player

v. Sini, No. 21-CV-5613(JS)(JMW), 2021 WL 5084172, at *2 (E.D.N.Y.

Nov. 1, 2021) (abstaining from adjudicating constitutional claims

seeking injunctive relief regarding plaintiff’s pending criminal

case); London v. Nassau County Dist. Attorney’s Off., No. 20-CV-

3988(JS)(AKT), 2020 WL 7699644, at *9 (E.D.N.Y. Dec. 28, 2020)

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(same).

2. Monetary Damages

Unlike claims for declaratory and injunctive relief, the

Second Circuit has held that claims for monetary damages should

not be dismissed under Younger abstention. Kirschner v. Klemons,

225 F.3d 227, 238 (2d Cir. 2000). However, given that the claims

set forth in the Amended Complaint are closely intertwined with the

on-going state criminal case, prosecution of such claims in this

Court at this juncture would be premature. Accordingly,

adjudication of such claims is STAYED pending the conclusion of

the underlying criminal case. Therefore, the Clerk of the Court

shall administratively CLOSE this case. Plaintiff may request, in

writing, that this case be re-opened within 30 days of the

conclusion of his state court criminal proceedings, if so warranted

at that time. See, e.g., Williams v. Toto, No. 20-CV-

4593(PKC)(VMS), 2021 WL 2351176, at *12 (E.D.N.Y. June 9, 2021)

(staying Section 1983 claims until the resolution of the pending

criminal case, “the outcome of which could affect the viability,

scope, and/or resolution of one or more of Plaintiff’s Section

1983 claims against [defendant]” (citing Wallace v. Kato, 549 U.S.

384, 393–94 (2007) (“If a plaintiff files a false-arrest claim

before he has been convicted (or files any other claim related to

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rulings that will likely be made in a pending or anticipated

criminal trial), it is within the power of the district court, and

in accord with common practice, to stay the civil action until the

criminal case or the likelihood of a criminal case is ended”));

Stegemann v. Rensselaer Count Sheriff’s Off., 648 F. App’x 73, 78

(2d Cir. 2016) (summary order) (“Because [plaintiff]’s underlying

criminal action is ongoing, the better course might be for the

District Court to hold [plaintiff]’s civil action in abeyance until

a judgment of conviction has been entered in his criminal case.”);

Safran v. Singas, No. 20-CV-4537 (PKC) (SMG), 2020 WL 7125232, at

*5 (E.D.N.Y. Dec. 4, 2020) (staying false arrest claims pending

the outcome of plaintiff’s state court criminal proceedings);

McKeever v. Singas, No. 19-CV-1756(JS)(SIL), 2019 WL 2646574, at

*3 (E.D.N.Y. June 26, 2019) (staying Section 1983 action pending

resolution of the underlying state court criminal prosecution);

Henderson v. Fludd, No. 19-CV-02675(JMA)(AYS), 2019 WL 4306376, at

*3 (E.D.N.Y. Sept. 11, 2019) (same).

CONCLUSION

Accordingly, IT IS HEREBY ORDERED that Plaintiff’s IFP

Application is GRANTED;

IT IS FURTHER ORDERED that the claims seeking injunctive

relief in the Amended Complaint are sua sponte DISMISSED WITHOUT

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PREJUDICE pursuant to Rule 12(h)(3) of the Federal Rules of Civil

Procedure;

IT IS FURTHER ORDERED that the claims seeking damages

are STAYED pending the conclusion of the underlying criminal case,

and the Clerk of the Court shall administratively CLOSE this case;

IT IS FURTHER ORDERED that Plaintiff may request, in

writing, that this case be re-opened within 30 days of the

conclusion of his state court criminal proceedings, if so warranted

at that time;

IT IS FURTHER ORDERED that, pursuant to 28 U.S.C.

§ 1915(a)(3), any appeal from this Order would not be taken in

good faith. 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

mail a copy of this Memorandum & Order to the pro se Plaintiff at

his address of record and include the notation “LEGAL MAIL” on the

envelope.

SO ORDERED.

_/s/ JOANNA SEYBERT___________

Joanna Seybert, U.S.D.J.

Dated: May 23 , 2022

Central Islip, New York

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