Kevin James Walker Estate v. Wuchte

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

KEVIN JAMES WALKER,

Plaintiff,

MEMORANDUM & ORDER

v. 2:22-CV-1532 (HG) (AYS)

PETER WUCHTE; BRIAN RASIAK

and KEVIN KANE,

Defendants.

HECTOR GONZALEZ, United States District Judge:

On March 21, 2022, Plaintiff Kevin James Walker,1 proceeding pro se, filed this action

against Police Officer Peter Wuchte, Sergeant Brian Rasiak and Inspector Kevin Kane (the

“Defendants”). See ECF No. 1. On April 28, 2022, Plaintiff filed an Order to Show Cause.

ECF No. 8. Plaintiff paid the filing fee to commence this action. The Court denies Plaintiff’s

Order to Show Cause and dismisses the complaint with leave to amend as set forth below.

BACKGROUND

Plaintiff’s statement of claim consists of the following:

My rights were violated under the color of the law. My indigenous

rights were violated as an Indigenous man on the land. Please see

attached fee schedule. Character defamation that I am a subject/U.S.

citizen and partied to the US Bankruptcy.

1 The complaint was signed by Khalid El Ali, and not Plaintiff Kevin James Walker. See ECF No. 1 at 5. Although

federal law affords parties a statutory right to “plead and conduct their own cases,” 28 U.S.C. §1654, that statute

does not permit “unlicensed laymen to represent anyone else other than themselves.” Lattanzio v. COMTA, 481

F.3d 137, 139 (2d Cir. 2007) (internal quotation marks omitted); Guest v. Hansen, 603 F.3d 15, 20 (2d Cir. 2010)

(“A person who has not been admitted to the practice of law may not represent anybody other than himself.”). It is

unclear whether Plaintiff is also known as Khalid El Ali or if Khalid El Ali is a separate individual. If Khalid El Ali

is not a licensed attorney, he cannot represent Plaintiff before this Court. If Plaintiff has legally changed his name to

Khalid El Ali, then any amended complaint he files must include his legal name in the caption and must be signed

by the Plaintiff listed in the caption of the amended complaint.

Plaintiff also filed other actions. See Walker v. Pastoressa, et al., No. 2:22-CV-0997 (HG) (AYS) (filed March 23,

2022) and Walker v. Galanos, et al., No. 2:22-CV-2421 (HG) (AYS) (filed Apr. 28, 2022).

ECF No. 1 at 4. Plaintiff does not set forth the relief he seeks. Id.

Plaintiff also attaches the aforementioned “Fee Schedule,” id. at 7-12, and a Certificate of

Disposition dated March 23, 2021, indicating that certain charges against him were dismissed in

Suffolk County state court. See id. at 14. In addition, Plaintiff has filed a separate Order to

Show Cause seeking to enjoin the “Suffolk Police from harassing pulling over and creating

fictitious charges out of thin air,” because he fears retaliation “for winning court case and for

filing civil complaint.” ECF No. 8 at 1-5.

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)).

In reviewing a pro se complaint, a court must be mindful that the plaintiff’s pleadings

“must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also,

e.g., Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that, “[e]ven after Twombly,” courts

“remain obligated to construe a pro se complaint liberally”). Nonetheless, a district court may

dismiss a pro se action sua sponte, that is, on its own, —even if the plaintiff has paid the

requisite filing fee—if the action is frivolous, Fitzgerald v. First East Seventh Street Tenants

Corp., 221 F.3d 362, 363-64 (2d Cir. 2000); see also Greathouse v. JHS Sec. Inc., 784 F.3d 105,

119 (2d Cir. 2015) (“Courts have both statutory and inherent authority to sua sponte dismiss

frivolous suits.”), or the court lacks subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3).

An action “is frivolous when either: (1) the factual contentions are clearly baseless, such

as when allegations are the product of delusion or fantasy; or (2) the claim is based on an

indisputably meritless legal theory.” Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437

(2d Cir. 1998) (internal quotation marks and citation omitted). Federal subject matter

jurisdiction is available only when a “federal question” is presented, 28 U.S.C. § 1331, or when

plaintiffs and defendants are of diverse citizenship and the amount in controversy exceeds

$75,000, 28 U.S.C. § 1332. “[F]ailure of subject matter jurisdiction is not waivable and may be

raised at any time by a party or by the court sua sponte. If subject matter jurisdiction is lacking,

the action must be dismissed.” Lyndonville Sav. Bank & Trust Co. v. Lussier, 211 F.3d 697, 700-

01 (2d Cir. 2000) (citations omitted); see Fed. R. Civ. P. 12(h)(3).

DISCUSSION

A. Rule 8

Pursuant to Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must provide a

short, plain statement of claim against each defendant named so that each defendant has adequate

notice of the claims against them. Iqbal, 556 U.S. at 678 (Rule 8 “demands more than an

unadorned, the-defendant-unlawfully-harmed-me accusation”). A plaintiff must provide facts

sufficient to allow each named defendant “to have a fair understanding of what the plaintiff is

complaining about and to know whether there is a legal basis for recovery.” Harnage v.

Lightner, 916 F.3d 138, 141 (2d Cir. 2019) (quoting Kittay v. Kornstein, 230 F.3d 531, 541 (2d

Cir. 2000)). “When a complaint does not comply with the requirement that it be short and plain,

the court has the power, on its own initiative . . . to dismiss the complaint,” Salahuddin v.

Cuomo, 861 F.2d 40, 42 (2d Cir. 1988), however, a pro se litigant should generally be granted

“leave to amend at least once.” Shomo v. City of N.Y., 579 F.3d 176, 183 (2d Cir. 2009) (quoting

Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). Here, Plaintiff names Police

Officer Peter Wuchte, Sergeant Brian Rasiak and Police Officer Kevin Kane in the caption but

fails to allege any facts or suggest any claims against these Defendants. ECF No. 1 at 4.

As currently presented, Plaintiff’s complaint does not give these Defendants fair notice of

Plaintiff’s claims and thus fails to comply with Rule 8. The Court directs Plaintiff to amend the

complaint to comply with Rule 8 in order to proceed with this action.

B. Federal Criminal Law Claims

To the extent Plaintiff seeks to sue Defendants for violations of federal criminal statutes,

see ECF No. 1 at 3 (citing 18 U.S.C. §§ 241, 242, 3571), his claims are dismissed. “As a general

matter . . . crimes are prosecuted by the government, not by private parties.” Hill v. Didio, 191

F. App’x 13, 15 (2d Cir. 2006) (citing Connecticut Action Now, Inc. v. Roberts Plating Co., 457

F.2d 81, 86-87 (2d Cir. 1972)). “A private individual may bring suit under a federal [criminal]

statute only when Congress specifically intended to create a private right of action.” See Hill,

191 F. App’x at 14-15 (citations omitted); see also Leeke v. Timmerman, 454 U.S. 83, 85 (1981)

(holding that a private citizen lacks a judicially cognizable interest in the prosecution or non-

prosecution of another). Specifically, there is no private right of action under 18 U.S.C. §§ 241

and 242. Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 511 (2d Cir. 1994); Sheehy v.

Brown, 335 F. App’x 102, 104 (2d Cir. 2009) (“[C]laims based on the violation of federal

criminal statutes, such as 18 U.S.C. §§ 241-242 . . . are not cognizable, as federal criminal

statutes do not provide private causes of action.”); Lodrini v. Sebelius, No. 14-CV-3137, 2014

WL 2446073, at *4 (E.D.N.Y. May 29, 2014) (same). Thus, the Court dismisses as frivolous

Plaintiff’s attempt to bring federal criminal charges against Defendants. Livingston, 141 F.3d at

437 (a claim is frivolous if it “is based on an indisputably meritless legal theory”).

C. False Arrest or Malicious Prosecution

To the extent Plaintiff seeks to sue Defendants for false arrest or malicious prosecution,

he has failed to allege facts against these Defendants as currently presented.

To allege a false arrest claim, a plaintiff must allege facts to show that “(1) the defendant

intended to confine [the plaintiff], (2) the plaintiff was conscious of the confinement, (3) the

plaintiff did not consent to the confinement, and (4) the confinement was not otherwise

privileged.” Weyant v. Okst, 101 F.3d 845, 853 (2d Cir. 1996) (alteration in the original)

(internal quotation marks and citation omitted). The existence of probable cause to arrest “is a

complete defense to an action for false arrest,” id. at 852 (internal quotation marks omitted).

To allege a malicious prosecution claim, a plaintiff must allege facts to show a violation under

the Fourth Amendment and meet the elements of New York’s malicious prosecution law, i.e.,

“(1) the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the

proceeding in plaintiff's favor; (3) lack of probable cause for commencing the proceeding; and

(4) actual malice as a motivation for defendant’s actions.” Manganiello v. City of New York, 612

F.3d 149, 160-61 (2d Cir. 2010) (citations omitted); see also Thompson v. Clark, 142 S. Ct.

1332, 1341 (2022) (“A plaintiff need only show that the criminal prosecution ended without a

conviction” in order to satisfy the favorable termination requirement).

D. Plaintiff’s Order to Show Cause

The Court denies Plaintiff’s Order to Show Cause for a preliminary injunction and

temporary restraining order. Temporary restraining orders and preliminary injunctions are

extraordinary and drastic remedies, Sussman v. Crawford, 488 F.3d 136, 139 (2d Cir. 2007),

which are “never awarded as of right,” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24

(2008), or “as a routine matter.” JSG Training Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 80 (2d

Cir. 1990). To obtain such relief, the moving party must show “(a) irreparable harm and (b)

either (1) likelihood of success on the on the merits, or (2) sufficiently serious questions going to

the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly

toward the party seeking preliminary relief.” Citigroup Global Mkts., Inc. v. VCG Special

Opportunities Master Fund, Inc., 598 F.3d 30, 35 (2d Cir. 2010).

The Second Circuit defines irreparable harm as “injury that is neither remote nor

speculative, but actual and imminent and that cannot be remedied by an award of monetary

damages.” New York v. U.S. Dep’t of Homeland Sec., 969 F.3d 42, 86 (2d Cir. 2020) (citation

omitted). Plaintiff does not meet the standard for emergency injunctive relief. Plaintiff has

neither made a showing of irreparable harm nor demonstrated a likelihood of success on the

merits.

E. Request for Service by United States Marshals Service

Plaintiff’s request to have the United States Marshals Service serve the summons and

complaint is also denied. See ECF No. 6. Because Plaintiff paid the filing fee, he is responsible

for effecting service of process on the Defendants. Plaintiff has not shown an adequate basis for

seeking service of process by the United States Marshals Service without prepayment of fees.

See, e.g., Flint v. Jun, 1:19-CV-00416 (EAW), 2020 WL 8838041, at *1 (W.D.N.Y. June 3,

2020) (granting plaintiff’s request because he is incarcerated and proceeding pro se).

CONCLUSION

As set forth above, Plaintiff’s complaint is dismissed as it fails to comply with Rule 8 of

the Federal Rules of Civil Procedure. However, in light of Plaintiff’s pro se status, the Court

directs him to file an amended complaint that complies with Rule 8 within 30 days in order to

proceed with this action.

Plaintiff’s request to have the United States Marshals Service serve the summons and

complaint is denied. See ECF No. 6. Plaintiff’s Order to Show Cause is denied. See ECF No. 8.

All further proceedings shall be stayed for 30 days or until Plaintiff files an amended

complaint, whichever is earlier. The amended complaint should be captioned, “Amended

Complaint” and bear the same docket number as this Order, 2:22-CV-1532 (HG) (AYS). The

amended complaint will replace the original complaint. That is, the amended complaint must

stand on its own without reference to the original complaint. In the amended complaint, Plaintiff

must set forth what each Defendant did or failed to do, what harm he sustained, and the relief he

seeks. Plaintiff must allege each Defendant’s direct or personal involvement in the alleged

constitutional deprivation. Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010) (citation omitted).

Plaintiff must also provide the date and location for each relevant event. While Plaintiff may

include exhibits in support of his claims, he cannot rely on exhibits to fulfill his obligation to

provide a statement of claim that complies with Rule 8. See, e.g., Irons v. U.S. Gov’t, No. 21-

CV-4683 (KAM) (LB), 2021 WL 4407595, at *2 (E.D.N.Y. Sept. 27, 2021) (“Neither the court

nor defendants should have to parse through the complaint or attached exhibits to ascertain the

factual basis for plaintiff’s claims.”).

If Plaintiff fails to file an amended complaint within the time allowed or show good cause

why he cannot, the Court will direct the Clerk of Court to enter judgment and close this case.

Although Plaintiff paid the filing fee, the Court certifies pursuant to 28 U.S.C. §

1915(a)(3) that any appeal of this Order would not be taken in good faith and therefore in forma

pauperis status is denied for the purpose of an appeal. Coppedge v. United States, 369 U.S. 438,

444-45 (1962).

The Clerk of Court is respectfully directed to mail a copy of this Order to the pro se

Plaintiff and note the mailing on the docket.

SO ORDERED:

___/s/ Hector Gonzalez_______________

HECTOR GONZALEZ

United States District Judge

Dated: Brooklyn, New York

June 15, 2021