# Braithwaite v. Collins

> District Court, E.D. New York · May 23, 2022

URL: https://www.frixlaw.com/law-library/cases/10307968

## Case

- **Court:** District Court, E.D. New York
- **Decided:** May 23, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
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.
-----------------------------------X
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);

2
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10307968. Public record. Not legal advice.