Celli v. Engelmayer

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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LUCIO CELLI, MEMORANDUM AND ORDER

Plaintiff, 22-CV-04646 (TJM)

-against-

JUDGE ENGELMAYER; JUDGE LIVINGSTON;

JUDGE DONNELLY; AG GARLAND; AUSA

PEACE; AUSA KARAMIGIOUS; JUDGE

MATSUMOTO; OFFICER LOMBARDO; MS.

WEINRAUCH; MS. KELLAMAN; MR. PEREZ;

RANDI WEINGARTEN; JUDGE COGAN; MR.

SILVERMAN,

Defendants.1

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THOMAS J. McAVOY, United States District Judge:

Pro se plaintiff Lucio Celli filed this action in the United States District Court for the

Eastern District of New York against, among others, United States District Court Judges Paul A.

Engelmayer, Ann M. Donnelly, Kiyo A. Matsumoto, and Brian M. Cogan, United States Court

of Appeals Judge Debra Ann Livingston, United States Attorney General Merrick Garland,

several Assistant United States Attorneys (“AUSA”), Plaintiff’s former criminal defense

attorneys, and Randi Weingarten of the American Federation of Teachers. Plaintiff appears to

bring this action pursuant to 42 U.S.C. § 1983, and the Court will liberally construe Plaintiff's

complaint as asserting claims against the defendants, who are federal officials under Bivens v. Six

Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff also filed a

number of motions seeking relief on various grounds.2

1 The Clerk of Court is respectfully directed to correct the spelling of Defendants names as listed on the

docket as indicated in the instant caption.

2 See dkt. #s 3, 7-8, 10-12.

By Order dated December 13, 2022, Chief Judge Margo K. Brodie reassigned the instant

action to the undersigned.

For the reasons stated below, Plaintiff’s request to proceed in forma pauperis (“IFP”) is

granted, and the complaint is dismissed with prejudice for failure to state a claim upon which

relief may be granted. Accordingly, Plaintiff’s motions seeking various relief, dkt. #s 3, 7-8, 10-

12, are denied as moot.

Background

Plaintiff Lucio Celli was involved in several civil actions in connection with his work as

a teacher employed by the New York City Department of Education. See, e.g., Celli v. New York

Dept. of Ed, No. 21-CV-10455 (S.D.N.Y. Jan 3, 2022) (complaint dismissed because Section

1983 was not the proper vehicle to challenge a criminal conviction and the Court did not have

diversity jurisdiction over his state law claims); Celli v. Cole, No. 15-CV-3679 (E.D.N.Y. Jan. 9,

2017) (dismissing with prejudice amended complaint “filled with extensive rants, rambling

allegations, and many vulgar ad hominem attacks”); Combier v. Portellos, No. 17-CV-2239

(E.D.N.Y. Sept. 29, 2018) (complaint alleging that Defendant Celli had falsely accused plaintiff

of unauthorized practice of law and had sent emails with false and damaging information about

plaintiff using his DOE email account). Thereafter, Plaintiff was charged with and pleaded guilty

to transmitting threats to injure another in violation of 18 U.S.C. § 875(c) in connection with

emails sent to District Judges Brian M. Cogan and Margo K. Brodie and other public officials.

See United States v. Celli, 1:19-CR-00127 (PAE) (ST) (E.D.N.Y. July 20, 2021).

Plaintiff’s instant 205-page complaint is far from a model of clarity. Plaintiff names as

defendants the individuals who were involved in his criminal proceeding, both in the District

Court and the Court of Appeals. As best as can be ascertained, Plaintiff takes issue with events

that transpired in his criminal case before visiting Judge Paul A. Engelmayer. Plaintiff asserts

that AUSA Peace and AUSA Karamigious conspired with Judge Cogan and Judge Engelmayer

to deny him his constitutional rights. (Compl., ECF No. 1 at pg. 15.) Plaintiff further asserts that

defense attorneys Kellman and Silverman, along with AUSA Karamigious and Judge

Engelmayer, deprived him of a fair hearing. (Id. at pg. 2.) Plaintiff asserts that Judges Cooper,

Swain, and Siebel covered up Judge Engelmayer’s criminal conduct. (Id.) Since filing the

complaint, Plaintiff has filed numerous motions.

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)). Although all allegations contained

in the complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” Iqbal,

556 U.S. at 678. In reviewing a pro se complaint, the court must be mindful that the plaintiff’s

pleadings should be held “to less stringent standards than formal pleadings drafted by lawyers.”

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

97, 106 (1976)); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that even after

Twombly, courts “remain obligated to construe a pro se complaint liberally”).

In addition to requiring the sufficient factual matter to state a plausible claim for relief,

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

plain statement of claim against each defendant named so that they have adequate notice of the

claims against them. Iqbal, 556 U.S. 678 (Rule 8 “demands more than an unadorned, the-

defendant-unlawfully-harmed-me accusation.”). A pleading that only “tenders naked assertions

devoid of further factual enhancement” will not suffice. Id. (internal citations and alterations

omitted). To satisfy this standard, the complaint must at a minimum “disclose sufficient

information to permit the defendant to have a fair understanding of what the plaintiff is

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

230 F.3d 531, 541 (2d Cir. 2000) (internal quotation marks omitted).

Nonetheless, under 28 U.S.C. § 1915(e)(2)(B), a district court shall dismiss an in forma

pauperis action where it is satisfied that the action “(i) is frivolous or malicious; (ii) fails to state

a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is

immune from such relief.” 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 citation omitted).

Discussion

Section 1983 provides that:

[e]very 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. Bivens is the federal counterpart to Section 1983. See Arar v. Ashcroft, 585

F.3d 559, 571 (2d Cir. 2009) (“The purpose of the Bivens remedy ‘is to deter individual federal

officers from committing constitutional violations.’”) (quoting Corr. Servs. Corp. v. Malesko,

534 U.S. 61, 70 (2001)); accord FDIC v. Meyer, 510 U.S. 471, 485 (1994).

A. Challenges to Criminal Conviction

At the outset, the Court notes that to the extent that Plaintiff seeks to assert that his

criminal conviction is unjust, a civil rights action is not the proper vehicle to challenge his

conviction. Instead, challenges to the constitutionality of a federal conviction must be raised on

direct appeal or in a motion pursuant to 28 U.S.C. § 2255.3 See Jiminian v. Nash, 245 F.3d. 144,

146-47 (2d Cir. 2001) (Section 2255 “is generally the proper vehicle for a federal prisoner’s

challenge to his conviction and sentence”); Wilkinson v. Dotson, 544 U.S. 74, 78-82 (2005)

(noting that a petition for a writ of habeas corpus, not a civil rights action, is the remedy for a

prisoner seeking to challenge the fact or duration of his confinement).

B. Judicial Immunity

Judges are absolutely immune from suit for damages for any actions taken within the

scope of their judicial responsibilities. Mireles v. Waco, 502 U.S. 9, 11 (1991). Generally, “acts

arising out of, or related to, individual cases before the judge are considered judicial in nature.”

Bliven v. Hunt, 579 F.3d 204, 210 (2d Cir. 2009); Ojeda v. Mendez, No. 20-CV-3910, 2021 WL

66265, at *2 (E.D.N.Y. Jan. 7, 2021); Nieves v. Liman, No. 20-CV-9503, 2020 WL 7248856, at

*2-3 (S.D.N.Y. Dec. 7, 2020) (discussion of the doctrine of judicial immunity in the context of

claims under Bivens against a federal judge). Judicial immunity “is not overcome by allegations

of bad faith or malice,” nor can judges “be deprived of immunity because the action [the judge]

took was in error ... or was in excess of [the judge's] authority.” Mireles, 502 U.S. at 11, 13

(second alteration in original); Witcher v. Moriber, No. 21-CV-6168, 2022 WL 1085297, at *1

(E.D.N.Y. Apr. 11, 2022). This is because “[w]ithout insulation from liability, judges would be

subject to harassment and intimidation ....” Young v. Selsky, 41 F.3d 47, 51 (2d Cir. 1994).

Judicial immunity does not apply when a judge takes action outside his or her judicial capacity,

or when the judge takes action that, although judicial in nature, is taken “in absence of all

3 By mandate dated May 10, 2022, the United States Court of Appeals denied Plaintiff’s petition for a writ

of mandamus in his criminal action finding that the mandamus petition does not depart from Plaintiff’s

“prior pattern of vexatious filings.” See USA v. Celli, No. 19-cr-00127-PAE-ST (ECF No. 231.)

jurisdiction.” Mireles, 502 U.S. at 11-12; see also Bliven, 579 F.3d at 209-10 (describing actions

that are judicial in nature).

Plaintiff's claims under Bivens against District Court Judges Paul A. Engelmayer, Ann M.

Donnelly, Kiyo A. Matsumoto, Brian M. Cogan, and United States Court of Appeals Judge

Debra Ann Livingston all arise from the judge’s decisions made in their judicial capacities with

regard to Plaintiff’s prior actions. These judges are therefore immune from suit under the

doctrine of judicial immunity. Accordingly, the Court dismisses Plaintiff's claims under Bivens

against Judges Engelmayer, Donnelly, Matsumoto, Cogan, and Livingston. See 28 U.S.C. §

1915(e)(2)(B).

C. Prosecutorial Immunity

The Court must further dismiss Plaintiff's claims under Bivens against AUSA Peace and

AUSA Karamigious. Prosecutors are immune from civil suits for damages for acts committed

within the scope of their prosecutorial duties where the challenged activities are not investigative

in nature but are instead “‘intimately associated with the judicial phase of the criminal process.’”

Giraldo v. Kessler, 694 F.3d 161, 165 (2d Cir. 2012) (quoting Imbler v. Pachtman, 424 U.S. 409,

430 (1976)); see also Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993) (absolute immunity is

analyzed under a “functional approach” that “looks to the nature of the function performed, not

the identity of the actor who performed it” (internal quotation marks and citations omitted));

Tigano v. U.S., 527 F. Supp. 3d 232, 243 (E.D.N.Y. 2021). Here, Plaintiff's claims against

AUSA Peace and Karamigious are based on their actions within the scope of their prosecutorial

duties and associated with the conduct of the criminal proceeding they prosecuted against

Plaintiff. The doctrine of prosecutorial immunity thus bars Plaintiff's claims under Bivens against

AUSA Peace and AUSA Karamigious. See 28 U.S.C. § 1915(e)(2)(B).

D. Claims against Defense Attorneys

Plaintiff appears to allege that criminal defense attorneys Benjamin Silverman, Susan

Kellman, and Mr. Perez provided ineffective representation. Because Section 1983 imposes

liability for constitutional violations by state actors only, Silverman, Perez, and Kellman, as

private persons, are beyond the scope of Section 1983 liability. Because Plaintiff fails to allege

any facts that could plausibly suggest that Silverman or Kellman were state actors or were acting

under color of state law at the time of the alleged civil rights violations, Plaintiff cannot state a

Section 1983 claim against them. See Licari v. Voog, 374 Fed. Appx. 230, 231 (2d Cir. 2010) (“It

is well established that private attorneys—even if the attorney was court appointed—are not state

actors for the purposes of [Section] 1983 claims.”); Harvey v. Queens County D.A., No. 18-CV-

5373, 2020 WL 837357, at *3 (E.D.N.Y. Feb. 20, 2020). To the extent that Plaintiff seeks to

raise a claim of ineffective assistance of counsel, he may do so during post-conviction

proceedings. See Preiser v. Rodriguez, 411 U.S. 475, 490 (1973); Randolph v. Suffolk County

D.A.'s Off., No. 21-CV-841, 2021 WL 1124603, at *3–4 (E.D.N.Y. Mar. 24, 2021). Accordingly,

Plaintiff’s claims against Defendants Silverman, Perez, and Kellman are dismissed pursuant to

28 U.S.C. § 1915(e)(2)(B).

E. Sovereign Immunity

The doctrine of sovereign immunity bars federal courts from hearing suits against the

federal government, including suits against individual federal officers in their official capacities,

except where sovereign immunity has been waived. United States v. Mitchell, 445 U.S. 535, 538

(1980) (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)); Robinson v. Overseas

Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994) (“Because an action against a federal

agency or federal officers in their official capacities is essentially a suit against the United States,

such suits are ... barred under the doctrine of sovereign immunity, unless such immunity is

waived.”). Consent to suit “must be ‘unequivocally expressed’ in statutory text and cannot

simply be implied.” Adeleke v. United States, 355 F.3d 144, 150 (2d Cir. 2004) (citing United

States v. Nordic Village Inc., 503 U.S. 30, 33 (1992)); Dotson v. Griesa, 398 F.3d 156, 177 (2d

Cir. 2005). Plaintiff sues Attorney General Merrick Garland but he makes no plausible allegation

against that Defendnat. Since Attorney General Garland acting in his official capacity is entitled

to sovereign immunity and Plaintiff has not identified any basis for invalidating that immunity,

Plaintiff's claim against Defendant Garland is dismissed on that basis. See 28 U.S.C. §

1915(e)(2)(B).

F. Remaining Defendants

To state a claim under Bivens against an individual federal officer or employee or Section

1983 against a state actor, a plaintiff must allege facts showing the individual's direct and personal

involvement in the alleged constitutional deprivation. See Thomas v. Ashcroft, 470 F.3d 491, 496

(2d Cir. 2006); see also Raspardo v. Carlone, 770 F.3d 97, 115-116 (2d Cir. 2014) (“If a defendant

has not personally violated a plaintiff’s constitutional rights, the plaintiff cannot succeed on a §

1983 action against th[at] defendant . . . § 1983 requires individual, personalized liability on the

part of each government defendant.”). Plaintiff has alleged no comprehensible facts against Randi

Weingarten, Officer Lombardo, or Ms. Weinrauch, much less facts plausibly alleging direct and

personal involvement in a constitutional violation. The Court therefore dismisses Plaintiff's claims

against these individuals. See 28 U.S.C. § 1915(e)(2)(B).

Warning

“The district courts have the power and the obligation to protect the public and the

efficient administration of justice from individuals who have a history of litigation entailing

vexation, harassment and needless expense to other parties and an unnecessary burden on the

courts and their supporting personnel.” Lau v. Meddaugh, 229 F.3d 121, 123 (2d Cir. 2000)

(citations and internal quotation marks omitted). Plaintiff is warned that the future filing of

repetitive, vexatious and frivolous litigation may result in the imposition of an injunction

prohibiting him from making future filings seeking in forma pauperis status without leave of the

Court. See Hong Mai Sa v. Doe, 406 F.3d 155, 158 (2d Cir. 2005) (“If a litigant has a history of

filing vexatious, harassing or duplicative lawsuits, courts may impose sanctions, including

restrictions on future access to the judicial system.” (internal quotations and citations omitted));

Shukla, Pl, v. Deloitte Consulting LLP, Def., No. 19-CV-10578, 2021 WL 2418841, at *5

(S.D.N.Y. June 14, 2021); Pierre v. U.S. Postal Serv., No. 18-CV-7474, 2019 WL 653154, at *4

(E.D.N.Y. Feb. 15, 2019).

Conclusion

For the reasons stated above, Plaintiff's pro se complaint, filed in forma pauperis, 1s

dismissed with prejudice for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B). Plaintiff's

pending motions are dismissed as moot.

The Clerk of Court is respectfully directed to enter judgment, to mail a copy of the

judgment and this Memorandum and Order to the pro se Plaintiff at his last known address,’ to

note the mailing on the docket, and to close this case.

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 purpose of

an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

SO ORDERED.

Dated: Binghamton, New York On

March 28, 2023 □□□ ktsir

THOMAYSYZ. McAVOY

United States District Jud

“The Court notes that Plaintiff was released from custody and has failed to provide the Court with a new

address. (ECF No. 15.)