Smith v. Troulakis

UNITED STATES DISTRICT COURT CLE RK

8/5/2022 1:28 pm

EASTERN DISTRICT OF NEW YORK

-------------------------------------------------------------------X U.S. DISTRICT COURT

TERRY SMITH, #132209, E A S T E R N   D I S T R I C T   O F  NE W YORK

LON G ISLAND OFFICE

Plaintiff,

MEMORANDUM & ORDER

-against- 22-CV-3441(GRB)(LGD)

MARIA A. TROULAKIS, Assistant District Attorney;

Defendant.

-------------------------------------------------------------------X

GARY R. BROWN, United States District Judge:

Before the Court is the application to proceed in forma pauperis (“IFP”) filed by pro se

plaintiff Terry Smith (“Plaintiff” or “Smith”) while incarcerated at the Suffolk County

Correctional Facility in relation to his sixth complaint.1 Docket Entry “DE” 1. Upon review, the

Court finds that Plaintiff has not alleged a plausible claim, and, for the reasons that follow, the

complaint is dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b).

BACKGROUND

1. Summary of the Complaint2

Plaintiff’s complaint is submitted on the Court’s form for civil rights actions brought

pursuant to 42 U.S.C. § 1983 (“Section 1983”) and includes three additional handwritten pages as

well as eleven pages of exhibits. See DE 1, in toto. The complaint names as the sole defendant

Maria A. Troulakis (“Troulakis” or “defendant”) who is alleged to be the assistant district attorney

1 See 19-CV-00323(MKB)(LGD) Smith v. Rossini, et al. (§ 1983 action stayed by Order dated March 5, 2021); 19-

CV-5941(MKB)(LGD) Smith v. Doyle, et al. (same); 21-CV-4541(GRB)(JMW) Smith v. Sini (§ 1983 complaint

dismissed for failure to prosecute by Order dated September 11, 2021); 22-CV-0017(GRB)(LGD) Smith v. Suprina

(proceeding); and 22-CV-2673(GRB)(LGD) Smith v. Suprina, et al., (§ 1983 action stayed by Order dated May 27,

2022).

2 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.

who presented the underlying criminal matter against Smith to the grand jury.3 Id.

According to the complaint, during the December 1, 2021 grand jury presentation,

defendant “presented unvalid information to the Grand Jury.” Id. at 6. Plaintiff asserts that

defendant presented an unsigned document described as a “Project Estimate Report” from Lowe’s

Home Center, LLC (“Lowe’s”) reflecting that plaintiff had inquired about purchasing a particular

wrench kit and hammer drill. Id. at 6 and Ex. A. According to the transcript excerpt Plaintiff

included with his complaint, there was a burglary at Lowe’s at approximately 11:20 p.m. on

November 26, 2021. Ex. B. A representative from Lowe’s, Brian Rose (“Rose”), testified that

he viewed video footage after arriving at the store upon finding that there was a break-in. Id.

Upon reviewing the footage, Rose recognized the subject as the same individual, wearing the same

clothes, who had visited the store the day before and who had inquired about purchasing the same

wrench kit and hammer drill reflected on the Project Estimate Report. Id. Rose describes that

the subject on the video selects the same wrench kit and hammer drill as the Project Estimate

Report. Id. Plaintiff also complains that ADA Troulakis knowingly elicited false testimony by

permitting Rose to testify to incorrect information regarding the time that he viewed the video

footage of the break-in. Compl., DE 1 at 7. Finally, Plaintiff alleges that ADA Troulakis “knew

when this case was presented to the Grand Jury on Dec. 1, 2021 there was No Warrant for my

Arrest when the police entered and/or barged through my door.” Id. at 8.

In the space on the form complaint that asks for a description of any injuries suffered as a

result of the events alleged, Plaintiff wrote “pain and suffering, mental anguish, stress, sleepless

3 According to the information maintained by the New York State Office of Court Administration on its public

docket, plaintiff is awaiting trial having been indicted under Indictment No. IND-71031-21 on charges including

burglary in the 3rd degree. See https://iapps.courts.stateny.us/webcrim (last visited August 3, 2022).

2

nights” for which he seeks to recover a monetary award in the sum of $1 million. Id. at 4-5, ¶¶

II.A.-III.

LEGAL STANDARDS

The Second Circuit has established a two-step procedure wherein the district court first

considers whether plaintiff qualifies for in forma pauperis status, and then considers the merits of

the complaint under 28 U.S.C. § 1915(e)(2). Potnick v. E. State Hosp., 701 F.2d 243, 244 (2d

Cir. 1983).

1. In Forma Pauperis

Upon review of the IFP application, the Court finds that plaintiff is qualified by his

financial status to commence this action without the prepayment of the filing fee. Therefore, the

application to proceed IFP is granted.

2. Sufficiency of the Pleadings

As Judge Bianco summarized,

A district court is required to dismiss an in forma pauperis complaint if the action

is frivolous or malicious, fails to state a claim on 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). The Court is required to dismiss the action as

soon as it makes such a determination. See 28 U.S.C. §§ 1915(e)(2)(B)(i)-(iii).

It is axiomatic that district courts are required to read pro se complaints liberally,

see Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429

U.S. 97, 106 (1976)); Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010), and to

construe them “‘to raise the strongest arguments that [they] suggest [ ].’” Chavis,

618 F.3d at 170 (quoting Harris v. City of New York, 607 F.3d 18, 24 (2d Cir.

2010)). Moreover, at the pleadings stage of the proceeding, the Court must assume

the truth of “all well-pleaded, nonconclusory factual allegations” in the complaint.

Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 123 (2d Cir. 2010), aff’d, ---

U.S. ----, 133 S. Ct. 1659, 185 L. Ed. 2d 671 (2013) (citing Ashcroft v. Iqbal, 556

U.S. 662 (2009)). However, “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements . . . are not entitled to the

assumption of truth.” Iqbal, 556 U.S. at 678 (citation omitted).

3

Notwithstanding a plaintiff’s pro se status, 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.” Iqbal, 556 U.S. at 678. 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). Plaintiff’s factual allegations must also be sufficient to give the defendant

“fair notice of what the . . . claim is and the grounds upon which it rests,” Twombly,

550 U.S. at 555 (internal quotation marks and citation omitted).

Patrick v. Bronx Care, No. 14-CV-7392 (JFB)(AKT), 2014 WL 7476972, at *1-2 (E.D.N.Y. Dec.

31, 2014).

DISCUSSION

Section 1983 provides that:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress . . . .

42 U.S.C. § 1983. Section 1983 “creates no substantive rights; it provides only a procedure for

redress for the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d

Cir. 1993). To maintain a Section 1983 action, a plaintiff must show that the defendant (1) acted

under color of state law (2) to deprive the plaintiff of a right arising under the Constitution or

federal law. See id. The Court analyzes plaintiff’s Section 1983 claims below.

4

I. Immunity

A. The Eleventh Amendment

The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not

be construed to extend to any suit in law or equity, commenced or prosecuted against one of the

United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.

Const. Amend. XI. The Supreme Court has long held that the Eleventh Amendment bars suits

against a state by one of its own citizens in federal court. See, e.g., Bd. of Trs. of Univ. of Alabama

v. Garrett, 531 U.S. 356, 363 (2001). Eleventh Amendment immunity extends to state officials

acting in their official capacities, including an assistant district attorney. Rodriguez v. Weprin,

116 F.3d 62, 66 (2d Cir. 1997) (dismissing § 1983 claims against prosecutors because the Eleventh

Amendment bars claims against district and assistant district attorneys acting in their official

capacities); Ying Jing Gan v. City of New York, 996 F.2d 522, 536 (2d Cir. 1993) (“When

prosecuting a criminal matter, a district attorney in New York State, acting in a quasi-judicial

capacity, represents the State not the county.”).

However, sovereign immunity “is not absolute,” and the Supreme Court “ha[s] recognized

. . . two circumstances in which an individual may sue a State.” Coll. Sav. Bank v. Florida

Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999). First, “a State may waive

its sovereign immunity by consenting to suit.” Id. Second, “Congress may authorize such a suit

in the exercise of its power to enforce the Fourteenth Amendment.” Id.; see also Kimel v. Florida

Bd. of Regents, 528 U.S. 62, 80 (2000). Neither of these exceptions applies in this case. It is

well-established that New York State has not waived its sovereign immunity from Section 1983

claims. Mamot v. Bd. of Regents, 367 Fed. App’x 191, 192 (2d Cir. 2010) (summary order).

5

Moreover, Congress did not abrogate that immunity when it enacted Section 1983. See Will v.

Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989) (“Congress, in passing § 1983, had no intention

to disturb the States’ Eleventh Amendment immunity[.]”). Thus, Plaintiff’s claims against ADA

Troulakis in her official capacity are barred by the Eleventh Amendment and are thus dismissed

pursuant to 28 U.S.C §§ 1915(e)(2)(B)(iii) and 1915A(b)(2).4

B. Prosecutorial Immunity

As this Court has previously explained,

[u]nder federal law, prosecutors enjoy absolute immunity from liability in suits

seeking monetary damages for acts carried out in their prosecutorial capacities, i.e.,

those acts intimately associated with the judicial phase of the criminal process . . .

but not for those aspects of the prosecutor’s responsibility that cast him in the role

of an administrator or investigative officer rather than that of advocate.

Trotman v. Doe, No. 18-CV-7469 (GRB)(LB), 2020 WL 5097236, at *6 (E.D.N.Y. Aug. 27, 2020)

(internal quotation marks and citation omitted). Here, plaintiff’s Section 1983 claims against the

prosecutor in her individual capacity must fail because her presentation to the grand jury “falls

squarely in the acts intimately associated with the judicial phase of the criminal process, and thus,

[s]he[] must be afforded prosecutorial immunity in this context.” Id. at *7 (internal quotation

marks and citation omitted). Indeed, a prosecutor’s “alleged presentation of false evidence to the

grand jury ‘lies at the very core of a prosecutor’s role as an advocate engaged in the judicial phase

of the criminal process.’” Buari v. City of N.Y., 530 F. Supp. 3d 356, 380 (S.D.N.Y. 2021)

(alteration omitted) (quoting Bernard v. Cnty. of Suffolk, 356 F.3d 495, 503 (2d Cir. 2004)

(collecting cases); Soley v. Cnty. of Nassau, No. 18-CV-377 (ARR)(SJB), 2022 WL 2954055, at

4 Plaintiff’s Section 1983 claims are implausible for the additional reason that “neither a state nor its officials acting

in their official capacities are ‘persons’ under § 1983” and thus no action may lie against them for money damages.

Will, 491 U.S. at 71.

6

*5 (E.D.N.Y. July 26, 2022) (finding prosecutor was immune from suit and dismissing Section

1983 claims against her in her individual capacity insofar as they were based on her allegedly

eliciting false testimony before the grand jury); see also Ogunkoya v. Monaghan, 913 F.3d 64, 72

(2d Cir. 2019) (explaining that prosecutors have absolute immunity for decisions and acts that

“constitute[ ] an exercise of their prosecutorial discretion in preparing a case for indictment and

deciding when, where, and how to prosecute”). Accordingly, these claims are not plausible,

Shmueli v. City of New York, 424 F.3d 231, 236 (2d Cir. 2005) (“‘[A] state prosecuting attorney

who acted within the scope of [her] duties in initiating and pursuing a criminal prosecution . . . is

immune from a civil suit for damage’” under § 1983) (quoting Imbler v. Pachtman, 424 U.S. 409,

410, 431 (1976)), and are thus dismissed pursuant to 28 U.S.C. §§ 1915(e) (2)(B)(iii) and

1915A(b)(2).

II. Leave to Amend

A pro se plaintiff should ordinarily be given the opportunity “to amend at least once when

a liberal reading of the complaint gives any indication that a valid claim might be stated.” Shomo

v. City of New York, 579 F.3d 176, 183 (2d Cir. 2009) (internal quotation marks and citation

omitted). However, leave to amend is not required where it would be futile. See Hill v. Curcione,

657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988).

Given that the deficiency in Plaintiff’s claim could not be cured with amendment, leave to amend

would be futile. Accordingly, leave to amend the complaint is denied.

CONCLUSION

Based on the foregoing, plaintiff’s application to proceed IFP is granted. However,

complaint is dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). Leave to amend

7

the complaint is denied. The Clerk of the Court shall enter judgment accordingly and mark this

case closed. The Clerk of the Court shall also mail a copy of this Order to the pro se Plaintiff at

his address of record and note service on the docket.

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).

SO ORDERED.

__/s/ Gary R. Brown____________

Hon. Gary R. Brown

United States District Judge

Dated: August 5, 2022

Central Islip, New York

8