Grant v. Cafferri

IN CLERK'S OFFICE ——

U.S. DISTRICT COURT E.D.NLY.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK DEC 04

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ELIZABETH GRANT/GRACE GRANT, BROOKLYN OFFICE

Plaintiffs, MEMORANDUM AND ORDER

-V- 19-CV-2148 (RRM) (LB)

ADA NICOLETTA CAFFERRI, ef ai.,

Defendants.

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ELIZABETH GRANT/GRACE GRANT,

Plaintiffs,

-v- 19-CV-2204 (RRM) (LB)

LORRAINE VULTAGGIO, et al.,

Defendants.

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ELIZABETH GRANT/GRACE GRANT. □

Plaintiffs,

-V- 19-CV-2911 (RRM) (LB)

ROBERT RESAN, ef ai.,

Defendants.

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ELIZABETH GRANT/GRACE GRANT,

Plaintiffs,

-V- 19-CV-3244 (RRM) (LB)

QUEENS SUPREME COURT, et al.,

Defendants.

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ELIZABETH GRANT/GRACE GRANT,

Plaintiffs,

-V- 19-CV-3689 (RRM) (LB)

ASPCA, et al.,

Defendants.

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ROSLYNN R. MAUSKOPF, United States District Judge.

Plaintiff Elizabeth Grant (“Grant”) brings these five pro se actions on behalf of herself

and her mother, alleging that defendants — who are largely the same in all five actions — violated

her constitutional rights. Grant has applied for leave to proceed in forma pauperis and for

appointment of counsel in all five cases, and has filed documents purporting to be an “Amended

Complaint” in two of the cases: Grant v. Vultaggio, No. 19-CV-2204 (Doc. 18) and Grant v.

Queens Supreme Court, No. 19-CV-3244 (Doc. No. 9). Grant may proceed in forma pauperis in

each of the five actions. For the reasons set forth below, the “Amended Complaints” are

construed as supplemental pleadings, the complaints in all five actions are dismissed, the cases

are consolidated under Docket No. 19-CV-2148, and Grant is given leave to file a single

amended complaint under the docket number within 30 days of the date of this Order. The

motions for appointment of counsel are denied at this time.

BACKGROUND .

The complaint in each of these five actions consists of a completed civil rights complaint

form, to which Grant has added a rambling, handwritten narrative. Grant’s handwriting is

illegible in places and she alleges the facts in a disjointed, stream-of-consciousness style. Since

these allegations are difficult to understand, the Court has taken judicial notice of several other

documents in order to place Grant’s allegations in the proper context. Specifically, the Court

will take judicial notice of Grant v. ASPCA, No. 16-CV-2765 (ER), 2017 WL 1229737

(S.D.N.Y. Mar. 31, 2017) (“Grant P’) — a case in which Grant unsuccessfully sued some of the

defendants named in the instant actions in the United States District Court for the Southern

District of New York (“SDNY”); allegations Grant made in Grant v. Warden of Rose M. Singer

Center, No. 19-CV-2046 (RRM); and court documents attached to the complaint in Grant v.

Zaro, No. 19-CV-2832 (RRM) (LB). .

The allegations in the instant actions principally relate to events which occurred on or

before January 28, 2016, and on or about August 29, 2018. At these times, Grant was living with

her elderly mother, Grace, in a multi-story house in Jackson Heights, Queens. Sometime prior to

January 2016, Grant took in dozens of rescue animals, which she kept in the house.

At some point, Grace Grant was “hit in the head by mistake.” (Compl. in Grant v.

Vultaggio (Doc. No. 2 in 19-CV-2204) at 9; Compl. in Grant v. ASPCA (Doe. No. | in 19-CV-

3689) at 5.)' Thereafter, the Jewish Association for Services for the Aged (“JASA”) began

providing adult protective services to Grace. The social worker assigned to the case, Lisa

Mallon, wanted to rid the home of the many rescue animals and, to that end, “tipped of[f]” the

New York City Police Department (the “NYPD”) about conditions in the house. (/d.) In

response to that tip, Police Officer Lorraine Vultaggio of the NYPD’s 115th Precinct allegedly

entered the home on or about January 6, 2016, where she observed approximately 40 cats and 10

dogs, some which were allegedly in bad condition. Based on Vultaggio’s affidavit, Judge

Michelle A. Armstrong of New York City Criminal Court, Queens County, issued a warrant to

search the Grants’ home. That warrant authorized the NYPD to seize the animals and to deliver

them “to the ASPCA Animal Hospital, or other veterinary partners, hospitals, and facilities, for

‘examination and treatment and ... to retain such property until directed otherwise by [the] Court.”

Grant 2017 WL 1229737, at *2.

On January 28, 2016, the NYPD executed the search warrant, seized Grant’s rescue

animals, and placed them in the custody of the American Society for the Prevention of Cruelty to

Animals (the “ASPCA”). There, they were examined by Dr. Robert Reisman, an ASPCA

’ Since the complaints are not paginated, the Court will use the “Page ID #” assigned to the page by the Court’s

Electronic Case Filing (“ECF”) system.

veterinarian. He diagnosed them with various maladies and billed Grant for services he

allegedly rendered. .

In the months following the seizure, Grant wrote letters to the Queens County District

Attorney’s Office and to property clerks at the NYPD, demanding the return of the animals. In

mid-April 2016, after learning that the animals were in the custody of the ASPCA, Grant

commenced Grant J against the ASPCA, the City of New York (the “City”), the NYPD, Queens

County, Queens County District Attorney Richard A. Brown, and Assistant District Attorney

(“ADA”) Nicoletta Caferri, alleging violations of her First, Fourth, and Fourteenth Amendment

rights arising from the seizure and continued retention of her animals.”

Two days after Grant commenced Grant / in the SDNY, a warrant was issued for Grant’s

arrest on charges that she violated sections 353 and 353-a of New York Agriculture and Markets

Law — statutes which prohibit the mistreatment of animals. Grant elected to go to trial on these

charges and was convicted of multiple misdemeanor counts. On April 30, 2018, Queens

Criminal Court Judge Stephanie Zaro sentenced Grant to three years’ probation. Under the

conditions of probation set by Judge Zaro, Grant was prohibited from owning, harboring, or

having custody or control of any animals for ten years and was required to submit to

unannounced home visits by probation officers.

On the morning of August 29, 2018, Probation Officers Monique Begy and Azalea Soba

made an unannounced visit to the Grants’ home. According to Grant, the officers knew that

Grant occupied the basement apartment, yet pushed their way into the upper portion of the

house, occupied by Grant’s mother, Grace. There, the officers found 16 animals which, Grant

claims, belonged to her mother. According to a Department of Probation document containing

2 Although Grant refers to this prosecutor as ADA Cafferri, the Court assumes that she is referring to Nicoletta

Caferri, the Chief of the Queens County District Atomey™ Animal Cruelty Prosecutions Unit.

the “Specification(s) of Alleged Violation of Probation,” Grant assaulted one of the probation

officers. Grant was arrested and dragged out of the house without being allowed to dress. She

was subsequently charged with various felony offenses, including assault in the second degree,

as well as violations of probation. Grant’s complaints suggest that she is currently in jail

awaiting a hearing on the alleged violations of probation and a trial on the felony offenses.

The Complaints

Grant v. Cafferri

The complaint in the first action — Grant v. Cafferri, No. 19-CV-2148 (RRM) (LB) — is

dated April 1, 2019, and was delivered to prison authorities for mailing that same day. It names

at least seven defendants, four of whom — the ASPCA, the NYPD, District Attorney Brown, and

ADA Caferri — were also named as defendants in GrantJ. Three others were not: Probation

Officers Begy and Soba and Dr. Robert Reisman.’

The allegations in this pleading pertain largely to the events of August 29, 2018. Grant

alleges that Begy and Soba unlawfully entered the “wrong premises” when they pushed their

way into the portion of the house occupied by Grant’s mother, despite having been told by Grant

and her mother that Grant lived in the basement. The pleading alleges that the officers engaged

in “elder abuse” by pushing Grant’s elderly mother and forcing her to wait on the porch without

her walker, cane, phone, hearing aid, or access to a bathroom. (Cafferri Compl. (Doc. No. 1 in

19-CV-2148) at 6-7, 9.) The complaint also alleges that Begy and Soba falsely accused Grant of

assault. (/d. at 8.)

3 The caption of the complaint appears to list “Robert Resan” as a defendant. However, this individual is not named

as a defendant in Section I.B, that section of the form complaint which purportedly lists all defendants. In addition,

there are no allegations relating to this defendant in the body of the complaint. In mid-August 2019, Grant filed an

amended complaint in another case clarifying that the person she intends to sue is Dr. Robert Reisman, an ASPCA

veterinarian.

5 .

The complaint implies that the police used excessive force and otherwise acted

improperly in arresting Grant. It alleges that Grant was dragged by her arms with her knees

scraping the ground, then “harshly put into the car,” causing injury to her arms, knees, and back.

(id. at 11.) In addition, the complaint alleges that Grant, who was in a “tiny nighty” at the time

of her arrest, was not allowed to dress or to bring tampons or sanitary napkins, thereby

“degrading and humiliating” her in front of neighbors. (/d. at 6-7.) However, Grant’s pleading □

does not name the officers responsible for these actions or provide any information from which

their identity could be determined.

The allegations concerning the ASPCA, Reisman, Brown, and Caferri appear to relate

primarily to Grant’s April 2018 conviction. The complaint appears to allege that the “District

Attorney could not prove her case through evidence,” and accordingly “paid witnesses” to

perjure themselves. (/d. at 9.) Grant suggests that her conviction was caused by “character

assassinat[ion] ... in the media,” and in disregard of 500 photographs documenting that her

animals were well-treated. (/d. at 10.)

The complaint principally seeks relief relating to Grant’s criminal cases, requesting that

her “false conviction” be reversed and that she be granted “‘a civil hearing for the illegal search

and seizure.” (/d. at 12.) However, the pleading also seeks restitution for her animals,

compensation for damage done to the house during the search, and damages for “character

assassination” and “pain and suffering.” (/d.)

Grant vy. Vultaggio

Like the complaint in the first action, the original complaint in the second action — Grant

v. Vultaggio, No. 19-CV-2204 (RRM) (LB) — is dated April 1, 2019. However, unlike the first

action, the complaint was not delivered to the prison authorities for mailing until April 4, 2019,

and was addressed to the SDNY, which subsequently transferred the case to this Court. The

original complaint in that action named four of the same defendants named in the first action —

the ASPCA, District Attorney Brown, ADA Caferri, and Dr. Reisman. It also named the

NYPD’s 115" Precinct and two individuals not named in the first action — Officer Vultaggio and

JASA social worker Mallon — though the names of the police officer, the veterinarian, and the

social worker were either misspelled or illegible.

Although the complaint contains eight handwritten pages of facts, the pleading appears to

contain few allegations concerning the five individual defendants named therein. It contains one

mention of Mallon, implying that she “tipped of[f]” Vultaggio regarding the condition of the

animals in the home. (Vultaggio Compl. (Doc. No. 2 in 19-CV-2204) at 9.) It accuses Vultaggio

of “trespassing” on January 6, 2016; concocting evidence against Grant; searching the Grants’

home without probable cause; and breaking doors, windows, and furniture during the search.

(id.) The complaint alleges that District Attorney Brown issued “press releases ... filled with

lies” in order to “destroy the lives of the innocent.” (/d. at 10, 11.) The complaint states that

ADA Caferri was “used to help charge and convict the innocent animal owner.” (/d. at 11.) The

pleading alleges that Dr. Reisman denied a veterinarian retained by Grant’s attorney, Richard

Rosenthal, access to the animals seized from the home; submitted “fraudulent bills” relating to

his treatment of the animals; and falsely accused Grant of animal abuse, giving rise to the

charges of which she was convicted. The complaint suggests that the charges pending against

Grant stem from the fraudulent bills. Gd. at 15.)

With respect to the institutional defendants, the complaint alleges a conspiracy by the

ASCPA, the 115" Precinct, and non-defendant JASA to “steal” Grant’s animals. (/d. at 10.)

According to Grant, the ASPCA is a “for profit” fraud which falsely accuses animal owners like

her and steals their animals as a “publicity stunt for donations.” The complaint implies that the

ASPCA euthanized some of Grant’s animals, sold others, and received a “tax right [sic] off’ as a

result of its activities. (/d. at 10, 15.)

The complaint alleges that defendants’ actions violated her “Fourth Amendment

rights to privacy and property.” (/d. at 15.) It demands that the animals be returned or that Grant

be compensated for them. (/d.) In addition, it seeks damages for the furniture, doors, and

windows that were broken during the execution of the search warrant. (/d.)

In mid-August 2019, Grant filed a six-page document entitled “Amended Complaint.”

On the first page, Grant seeks to correct the misspelling of some defendants’ names. However,

the caption omits the ASPCA and the body of the pleading lists only those defendants whose

names Grant seeks to correct: Vultaggio, Reisman, Caferri, and Mallon. In addition, the fact

section of the “Amended Complaint” consists of a single paragraph, which alludes to an

addendum which was not attached to the pleading. In light of Grant’s pro se status, the Court

construes the “Amended Complaint” as a supplemental pleading, which seeks only to correct or

add to information contained in the original complaint, rather than to supersede it.

Grant v. Resan

The complaint in the third action —- Grant v. Resan, No. 19-CV-2911 (RRM) (LB) -—

which is dated May 8, 2019, pertains largely to the August 29, 2018, incident. The caption of the

complaint lists seven defendants, all of whom were named as defendants in the prior two actions.

Robert Resan (t/n Robert Reisman), the ASPCA, the NYPD’s 115" Precinct, District Attorney

Brown, ADA Caferri, and Probation Officers Begy and Soba. However, paragraph I.B of the

complaint — the section which purported lists the parties — does not mention the veterinarian or

the District Attorney, and names an additional defendant: Judge Stephanie Zaro.

The complaint in Resan asserts that the charges on which Grant is currently being held

were fabricated by Begy and Soba. Grant also alleges that judges and the prosecutor have

conspired to keep her in jail, and that she would be released if they were to hold a hearing on the

violation of probation. In addition, the complaint alleges that the NYPD somehow profits when

they send animals to the ASPCA, that Judge Zaro engaged in “character assassination” by

crediting the testimony of Dr. Reisman and wrongly refused to recuse herself, that Dr. Reisman

fraudulently billed Grant for services that were unnecessary or not actually delivered, and that

District Attorney Brown issued a “press release of lies.” (Resan Compl. (Doc. No. 1 in 19-CV-

2911) at 17.)

The complaint specifically alleges four constitutional violations. First, the complaint

makes a First Amendment retaliation claim against ADA Caferri, alleging that the prosecutor

asked Judge Zaro to jail Grant because Grant was defending herself on Facebook. Second, the

complaint alleges that Grant’s Fourth Amendment rights were violated because her home was

searched without a warrant and without probable cause, and that the evidence seized during the

unlawful search should be suppressed. Third, Grant argues that her procedural due process rights

have been or are being violated by the failure to hold a prompt hearing on the violations of

probation and by taking her animals without due process. Fourth, Grant argues that her Eighth

Amendment rights were violated because she has been denied bail.

The complaint does not appear to request money damages. However, the pleading

clearly requests that the pending criminal charges against her be dismissed and that her 2018

conviction be reversed “for lack of evidence and insubstantial evidence.” (/d. at 5.) Grant

alleges that the prosecution has no evidence that she committed any crimes aside from “hearsay”

from “lying probation officers.” (/d.)

Grant v. Queens Supreme Court

The original complaint in the fourth action — Grant v. Queens Supreme Court, No. 19-

CV-3244 (RRM) (LB) — is undated but was received by the Court on May 28, 2019. It names

9 .

many of the same defendants named in one or more of the three prior actions: the ASPCA, the

115" Precinct, District Attorney Brown, ADA Caferri, Officers Begy and Soba, and Judge Zaro.

In addition, the action names two new defendants: the Queens Criminal and Supreme Courts.

The original complaint in the fourth action principally expands on Grant’s claim that

Begy and Soba engaged in an unlawful search and seizure. It alleges that Grant lived in the

basement apartment and that her mother occupied the upper floors of their house. (Queens Sup.

Ct. Compl. (Doc. No. 1 in 19-CV-3244) at 6.) According to the pleading, the 16 animals found

by the probation officers were Grace’s “companion pets” and lived in her portion of the house.

(/d.) Although Grant told Soba that she lived in the basement, and Grace told both probation

officers the same when they arrived on August 29, 2018, the officers nonetheless pushed their

way into Grace’s quarters, allegedly to lure Grant upstairs and near the pets so that she could be

arrested for violating probation. (/d. at 6-7.) The complaint alleges that this was “a planned

warrantless search and seizure,” designed to “entrap” Grant. (/d. at 11.)

The complaint not only alleges that Begy and Soba violated Grant’s Fourth Amendment

rights, but alleges a Fourth Amendment violation by Vultaggio, who is not named as a defendant

in the fourth action. The complaint also alleges that Caferri and Judge Zaro engaged in First

Amendment retaliation because they told Grant that if she continued to defend herself on

Facebook she would “end up in jail.” (/d. at 13.) Although Grant did not complete that portion

of the form complaint entitled “Relief,” the pleading repeatedly requests the Court’s help in

having Grant released from Rikers Island.

On June 12, 2019, Grant filed what purports to be an “Amended Complaint” by

delivering the six-page document to prison authorities. That document (Doc. No. 10) names the

same defendants as did the original complaint (with the exception of Queens Criminal Court) and

six new defendants: Officer Vultaggio; Dr. Reisman; Judge Paynter; an ASPCA lawyer named

10

Elizabeth Brindler; Lisa Mallon; and Grant’s estranged brother, Ed Grant. That pleading does

not allege any facts relating to these new defendants — or any facts at all, for that matter.

Although a notation on page 4 of the form pleading states that the factual allegations are “on

added paper,” no additional pages are attached to the form complaint. To be sure, the Court has

received no less than 25 letters from Grant subsequent to the “Amended Complaint,” but it is

impossible to determine whether any of these submissions were intended to be the attachment.

Accordingly, in light of Grant’s pro se status, the Court will construe the “Amended Complaint”

as a supplemental pleading, seeking to add the six additional defendants.

Grant v. ASPCA

The fifth action — Grant v. ASPCA, No. 19-CV-3689 (RRM) (LB) — was originally filed

in the SDNY in April 2019, but transferred to this district in June 2019. The caption of the

complaint in this action names six of the defendants named in the original complaint in the fourth

action — the ASPCA, the NYPD, District Attorney Brown , ADA Caferri, and Probation Officers

Begy and Soba. The caption does not name Judge Zaro, but the body of the complaint contains

roughly the same allegations regarding the judge as did the original complaint in the fourth cause

of action.

The complaint in the fifth action describes the event of August 29, 2018, in detail, largely

repeating facts alleged in the case described above. In a section entitled “Injuries,” Grant again

describes the physical injuries she suffered when she was arrested and dragged to the police car.

In a section entitled “Relief,” Grant implies that her Fourth Amendment rights were violated by

defendant Probation Officers’ “illegal warrantless search and seizures, ” that she is falsely

imprisoned on “bogus cases,” and that her due process rights were violated because she has yet

to receive a hearing on the alleged violation of probation. (Compl. (Doc. No. 1) at 4.) The

Il

complaint expressly requests that she be released from Rikers Island and that the ASPCA be

investigated. (/d.)

Motions for Appointment of Counsel

In all five cases, Grant has filed an application for the Court to appoint counsel on her

behalf. However, none of those applications articulate a persuasive reason for doing so in these

civil cases. In all of the applications, Grant states only that she needs a lawyer because she is

innocent and has no money. (Grant v. Cafferri, No. 19-CV-2148, Doe. No. 15 at J] 2-3; Grant

v. Vultaggio, No. 19-CV-2204, Doc. No. 19, at J] 2-3; Grant v. Resan, No. 19-CV-2911, Doc.

No. 9 at 2-3; Grant v. Queens Sup. Ct., No. 19-CV-3244, Doc. No. 25 at q§ 2-3; Grant v.

ASPCA, No. 19-CV-3689, Doc. No. 9 at {J 2-3.)

STANDARD OF REVIEW .

It is axiomatic that pro se complaints are held to less stringent standards than pleadings

drafted by attorneys and the Court is required to read a plaintiff's pro se complaint liberally and

interpret it raising the strongest arguments it suggests. Erickson v. Pardus, 551 U.S. 89, 94

(2007); Hughes v. Rowe, 449 U.S. 5, 9 (1980); Sealed Plaintiff v. Sealed Defendant #1, 537 F.3d

185, 191-93 (2d Cir. 2008). However, 28 U.S.C. § 1915A requires a district court to screen a

civil complaint “in which a prisoner seeks redress from a governmental entity or officer or

employee of a governmental entity” and to “dismiss the complaint, or any portion of the

complaint, if the complaint — (1) is frivolous, malicious, or fails to state a claim upon which

relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such

relief.” Similarly, under 28 U.S.C. § 1915(e)(2)(B), a court must dismiss an action filed in forma

pauperis by a non-prisoner if the court determines that the action “(i) is frivolous or malicious,

(ii) fails to state a claim upon which relief may be granted, or (iii) seeks monetary relief from a

defendant who is immune from such relief.”

12

Rule 8(a) of the Federal Rules of Civil Procedure provides that in order to state a claim

for relief, a complaint “must contain: (1) a short and plain statement of the grounds for the

court’s jurisdiction ...; 2) a short and plain statement of the claim showing that the pleader is

entitled to relief; and (3) a demand for the relief sought ....” In addition, Rule | l(a) provides that

if the plaintiff is unrepresented, the complaint must be signed by the plaintiff personally.

DISCUSSION

A. Consolidation of Actions

Rule 42(a) of the Federal Rules of Civil Procedure provides that “[i]f actions before the

court involve common question of law or fact, the court may ... consolidate the actions.” The

trial court has broad discretion to determine whether consolidation is appropriate. Johnson v.

Celotex Corp., 899 F.2d 1281, 1284-85 (2d Cir. 1990). Cases may be consolidated even where

the complaints name different parties or assert distinct causes of action. See Allah v. CityofNew °

York, No. 15-CV-6852 (CBA) (LB), 2016 WL 676394, at *3 (E.D.N.Y. Feb. 17, 2016); Caractor

v. Hous. Bridge 93rd Ave. Family Residence, Nos. 13-CV-3800, 13-CV-7043 (SJF) (AKT), 2014

WL 1351402, at *2-3 (E.D.N.Y. Apr. 2, 2014).

These five actions name many of the same defendants, pertain to the same incidents, and

involve common questions of law and fact. Accordingly, the Court directs the Clerk of Court to

(1) consolidate the five actions under Docket No. 19-CV-2148 (RRM) (LB), the first of the five

actions to be opened, and (2) close the other four cases: Nos. 1 9-CV-2204 (RRM) (LB), 19-CV-

2911 (RRM) (LB), 19-CV-3244 (RRM) (LB), and 19-CV-3689 (RRM) (LB). All future filings

pertaining to those four actions shall be docketed under No. | 9-CV-2148 (RRM) (LB).

B. Claims by or on Behalf of Grace Grant

Preliminarily, the Court notes that none of the complaints in these actions is signed by

Grace Grant, as required by Rule 11(a). Although the complaints are signed by Elizabeth Grant,

13

a pro se litigant cannot represent anyone other than herself, not even her own relatives. See

Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990).

Accordingly, any claims brought by Grace Grant or by Elizabeth Grant on behalf of her mother

are dismissed without prejudice to renewal by Grace Grant. This includes claims that Begy and

Soba engaged in “elder abuse,” claims that the officers unlawfully searched Grace Grant’s

portion of the house, claims that they unlawful seized her “companion animals,” and claims that

they deprived Grace Grant of access to property or a bathroom during the August 29, 2018,

search.

C. Judicial Immunity

Judges have absolute immunity for acts performed in their judicial capacities. Mireles v.

Waco, 502 U.S. 9, 11 (1991) (upholding applicability of judicial immunity in section 1983

actions); Burdick v. Town of Schroeppel, 717 F. App’x 92, 93 (2d Cir. 2018) (summary order)

(“Judges acting in their judicial capacity are absolutely immune from suit, even where the

plaintiff asserts constitutional violations under § 1983.”) (citing Bliven v. Hunt, 579 F.3d 204,

209 (2d Cir. 2009)). “[JJudicial immunity is not overcome by allegations of bad faith or malice,”

and a judge cannot “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 (citations and internal

quotation marks omitted) (second alteration in original). Immunity may only be overcome where

(1) the challenged acts were not taken in the judge’s judicial capacity or (2) the acts, “though

judicial in nature, [were] taken in the complete absence of all jurisdiction.” Id. at 12; see also

Gross v. Rell, 585 F.3d 72, 82 (2d Cir. 2009) (same).

The only allegations against Judge Zaro pertain solely to judicial actions she took while

presiding over Grant’s criminal case. The complaints in Resan and Queens Supreme Court, the

only cases to name Judge Zaro as a defendant, accuse the judge of incorrectly crediting Dr.

14

Reisman’s testimony, improperly refusing to recuse herself, and threatening to jail Grant if she

continued to post about the case on social media. Even if the latter threat violated Grant’s First

Amendment rights, all three actions were unquestionably judicial acts for which Judge Zaro is

absolutely immune from monetary liability.

To the extent that Grant is seeking injunctive relief against Judge Zaro, her claims are

precluded by the Federal Courts Improvement Act of 1996, § 309(c), Pub. L. No. 104-317, 110

Stat. 3847, 3853 (1996) (amending 42 U.S.C. § 1983). This law bars all claims for injunctive

relief against a judicial officer for a judicial action or omission unless a declaratory decree was

violated, or declaratory relief was unavailable. Grant does not allege that Judge Zaro acted in

violation of a declaratory decree. See El-Bey v. Clott, No. 17-CV-271 (BMC), 2017 WL 280710,

at *2 (E.D.N.Y. Jan. 20, 2017). Therefore, Grant’s claims against Judge Zaro are dismissed with

prejudice. See 28 U.S.C. §§ 1915(e)(2)(B)iii), 1915A(b)(2).

D. Prosecutorial Immunity

Prosecutors enjoy absolute immunity when they engage in “advocatory conduct that is

‘intimately associated with the judicial phase of the criminal process.’” Giraldo v. Kessler, 694

F.3d 161, 165 (2d Cir. 2012) (quoting /mbler v. Pachtman, 424 U.S. 409, 430 (1976)). Thus, a

prosecutor enjoys absolute immunity for acts undertaken “in preparing for the initiation of

judicial proceedings or for trial” or that are “within the scope of [the prosecutor’s] prosecutorial

duties.” Shmueli v. City of New York, 424 F.3d 231, 237 (2d Cir. 2005). A prosecutor

acts within the scope of her duties even if she makes false

statements during judicial proceedings, see Burns v. Reed, 500

U.S. 478, 490 (1991), knowingly uses false testimony, Shmueli,

424 F.3d at 237, deliberately withholds exculpatory evidence, id.,

engages in malicious prosecution, id. at 238, or attempts to

intimidate an individual into accepting a guilty plea, Peay v. Ajello,

470 F.3d 65, 67-68 (2d Cir. 2006).

D'Alessandro v. City of New York, 713 F. App’x 1, 5 (2d Cir. 2017) (summary order).

15

Moreover, “no First Amendment retaliation claim based on an arrest and/or criminal prosecution

is available where the prosecution at issue was supported by probable cause.” Allen v. City of

New York, No. 03-CV-2829 (KMW) (GWG), 2007 WL 24796, at *22 (S.D.N.Y. Jan. 3, 2007)

(citing Mozzochi v. Borden, 959 F.2d 1174, 1179-80 (2d Cir. 1992)) (“An individual does not

have a right under the First Amendment to be free from a criminal prosecution supported by

probable cause that is in reality an unsuccessful attempt to deter or silence criticism of the

government.”).

The only specific allegations concerning ADA Caferri in any of these cases relate to her

performance of her prosecutorial duties. Although Grant alleges that Caferri prosecuted Grant

because of her comments on Facebook and paid witnesses to perjure themselves, the ADA

nonetheless enjoys prosecutorial immunity for these acts. See Lee v. Willins, 617 F.2d 320, 322

(2d Cir. 1980) (prosecutor absolutely immune from claims of suborning perjury and falsifying

evidence). Accordingly, all claims against defendant Caferri are dismissed with prejudice.

In contrast, Grant’s claims against District Attorney Brown appear to have something to

do with “press releases” containing “lies” about Grant. (Resan Compl. at 17.) “Because

absolute immunity only extends to conduct related to prosecutorial functions that are intimately

associated with initiating or presenting the State’s case, it does not immunize prosecutors from

liability for ... making defamatory statements to the press ....” Flagler v. Trainor, 663 F.3d 543,

544 (2d Cir. 2011). Grant’s complaints, however, do not specifically identify the allegedly false

“press releases,” much less identify the allegedly false statements contained therein. Although a

plaintiff “need not allege the exact time, place and speaker of each defamatory statement,

... the plaintiff must provide enough context for the defendants to defend themselves — namely,

an indication of who made what statements, when, and to whom.” Wellner v. City of New York,

No. 16-CV-7032 (JGK), 2019 WL 15110 22, at *2 (S.D.N.Y. Mar. 22, 2019) (internal quotation

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marks and citations omitted). Accordingly, Grant’s claims against defendant Brown are

dismissed without prejudice and with leave to replead.

E. Witness Immunity

“It is well established that testifying witnesses, including police officers, are entitled to

absolute immunity from liability under § 1983 based on their testimony.” Rolon v. Henneman,

389 F. Supp. 2d 517, 519 (S.D.N.Y. 2005), aff'd, 517 F.3d 140 (2d Cir. 2008). This immunity is

rooted in the belief that “[a] witness’s apprehension of subsequent damages liability might

induce two forms of self-censorship.” Briscoe v. LaHue, 460 U.S. 325, 333 (1983). “First,

witnesses might be reluctant to come forward to testify. And once a witness is on the stand, his

testimony might be distorted by the fear of subsequent liability.” /d. In these cases, Grant

claims that Dr. Reisman and other witnesses testified falsely, and that their perjurious statements

resulted in her conviction. However, because Dr. Reisman and other witnesses enjoy immunity

for statements made at trial or in the grand jury, these claims are dismissed with prejudice.

F, Eleventh Amendment Immunity

To the extent that Grant seeks money damages from Queens Supreme and Criminal

Courts, these defendants are immune from liability because the Eleventh Amendment of the

United States Constitution prohibits state entities from being sued for damages in federal court.

“[A]s a general rule, state governments may not be sued in federal court unless they have waived

their Eleventh Amendment immunity, or unless Congress has abrogated the states’ Eleventh

Amendment immunity ....” Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009). New York

has not waived its Eleventh Amendment immunity to suit in federal court, and Congress did not

abrogate the states’ immunity in enacting § 1983. See Trotman v. Palisades Interstate Park

Comm’n, 557 F.2d 35, 40 (2d Cir. 1977). Because both the Queens Supreme and Criminal

Courts are part of the New York State Unified Court System, see N.Y. Const., art. 6, § 1(a), the

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Eleventh Amendment bars Grant’s claims against the state courts from proceeding in federal

court. See Gollomp, 568 F.3d at 368 (holding that the New York State Unified Court System “is

unquestionably an ‘arm of the State,’ and is entitled to Eleventh Amendment sovereign

immunity”); Murray v. Guzman, No. 19-CV-1959 (CM), 2019 WL 1745744, at *3 (S.D.N.Y.

Apr. 17, 2019). Grant’s claims for money damages against these two defendants are, therefore,

dismissed with prejudice. See 28 U.S.C. § 1915A(b)(2); 28 U.S.C. § 1915(e)(2)(B) Gil).

To the extent that Grant is seeking injunctive relief in the form of an order directing the

Criminal Court to reverse her state conviction or an order directing the Supreme Court to dismiss

ongoing criminal proceedings, the Court cannot grant this relief. First, “habeas corpus is the

exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and

seeks immediate or speedier release ....”. Heck v. Humphrey, 512 U.S. 477, 481 (1994) (citing

Preiser v. Rodriguez, 411 U.S. 475, 488-90 (1973)). Thus, Grant’s challenges to the

constitutionality of her state conviction and her challenge to the bail imposed upon her re-arrest

are not cognizable in these civil rights actions. See id. As this Court informed Grant in its May

8, 2019, order in Grant v. Warden of Rose M Singer Ctr., No. 1 9-CV-2046 (RRM) (LB), she

must exhaust all remedies available in state court before seeking a writ of habeas corpus in

federal court.

Second, the Supreme Court has long held that federal courts are not to enjoin ongoing

state court criminal proceedings except in specific, narrow circumstances. See Younger v.

Harris, 401 U.S. 37, 56 (1971). Federal courts should not intervene “<when: 1) there is an

ongoing state proceeding; 2) an important state interest is implicated; and 3) the plaintiff has an

avenue open for review of constitutional claims in the state court,’ unless the plaintiff can show

extraordinary circumstances to warrant intervention in the ongoing proceeding,” Booker v.

Ewald, No. 15-CV-4253 (JFB), 2015 WL 4716255, at *2 (E.D.N.Y. Aug. 7, 2015) (quoting

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Hansel v. Springfield, 56 F.3d 391, 393 (2d Cir. 1995)). Grant herself alleges that there is an

ongoing state criminal proceeding, and courts have recognized that an important state interest is

implicated in the resolution of criminal cases. See id. Grant has not alleged that the state courts

are an inadequate forum for raising constitutional claims, or alleged facts showing extraordinary

circumstances that would warrant intervention in her case.

G. Claims Against the NYPD and the 115th Precinct

Chapter 17, Section 396, of the New York City Charter provides: “All actions and

proceedings for the recovery of penalties for the violation of any law shall be brought in the

name of the city of New York and not in that of any agency, except where otherwise provided by

law.” Accordingly, the “NYPD, as a city agency, is not a suable entity.” Paige-El v. Herbert,

735 F. App’x 753, 755 (2d Cir. 2018) (summary order); see Jenkins v. City of New York, 478

F.3d 76, 93 n.19 (2d Cir. 2007) (“The district court correctly noted that the NYPD is a non-

suable agency of the City.”). A precinct is a division of the NYPD and is also a non-suable

entity. See, e.g., Warner v. City of New York, No. 12-CV-2799 (CBA) (LB), 2012 WL 2501070,

at *2 (E.D.N.Y. June 27, 2012); Denslow v. NYPD-77th Precinct, No. 11-CV-384 (KAM), 2011

WL 1348362, at *2 (E.D.N.Y. Apr. 8, 2011). Accordingly, Grant’s claims against the NYPD

and/or the 115th Precinct are dismissed with prejudice.

H. Collateral Estoppel and Res Judicata

Even if Grant were to recast her claims against the NYPD and/or the 115th Precinct as

claims against the City of New York, her claims against the City, the ASPCA, Brown, and/or

Caferri arising from the January 28, 2016, search and seizure would be barred by collateral

estoppel and/or res judicata. The doctrine of collateral estoppel, or issue preclusion, “bars a

party from relitigating in a second proceeding an issue of fact or law that was litigated and

actually decided in a prior proceeding if that party had a full and fair opportunity to litigate the

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issue in the prior proceeding ....” Metromedia Co. v. Fugazy, 983 F.2d 350, 365 (2d Cir. 1992).

“The doctrine of res judicata, or claim preclusion, holds that ‘a final judgment on the merits of

an action precludes the parties or their privies from relitigating issues that were or could have

been raised in that action.”” Monahan v. N.Y.C. Dep’t of Corr., 214 F.3d 275, 284-85 (2d Cir.

2000) (quoting Allen v. McCurry, 449 U.S. 90, 94 (1980)); see also Burgos v. Hopkins, 14 F.3d

787, 789 (2d Cir. 1994).

As noted above, Grant I, filed on April 13, 2016, alleged that the ASPCA, the City, the

NYPD, Brown, Caferri, and other defendants violated Grant’s First, Fourth, and Fourteenth

Amendment rights by seizing her animals on January 28, 2016, and retainirig them thereafter.

Judge Ramos granted the defendants’ motions to dismiss in an opinion which thoroughly

analyzed Grant’s claims. See Grant I, 2017 WL 1229737. The doctrine of collateral estoppel

precludes Grant from re-litigating the claims which Judge Ramos dismissed. In

addition, the doctrine of res judicata precludes Grant from raising claims against the ASPCA, the

NYPD, Brown, or Caferri that could have been raised in Grant I.

While Grant’s claims relating to the August 29, 2018, search and seizure of her animals

may not be barred by these doctrines, Grant does not have standing to contest the seizure of these

animals or to seek their return or restitution for these 16 pets. Grant specifically alleges that they

belong to her mother, not to her. (Queens Sup. Ct. Compl. at 6-7.)

I, The § 1983 Claims Against Individual Defendants

In order to state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

elements. First, the conduct challenged must have been “committed by a person acting under

color of state law.” Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) (quoting Pitchell v.

Callan, 13 F.3d 545, 547 (2d Cir. 1994)); see also Am. Mfrs. Mut. Ins. Co. v Sullivan, 526 U.S.

40, 50 (1999) (“[T]he under-color-of-state-law element of § 1983 excludes from its reach merely

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private conduct, no matter how discriminatory or wrongful.” (internal quotation marks and

citation omitted)). Second, the conduct complained of “must have deprived a person of rights,

privileges or immunities secured by the Constitution or laws of the United States.” Cornejo, 592

F.3d at 127 (quoting Pitchell, 13 F.3d at 547); see also Moore v. Toulon, No. 18-CV-5276 (JMA)

(ARL), 2019 WL 885932, at *2 (E.D.N.Y. Feb. 22, 2019). In addition, “[i]t is well settled in this

Circuit that ‘personal involvement of defendants in alleged constitutional deprivations is a □

prerequisite to an award of damages under § 1983.” Colon v. Coughlin, 58 F.3d 865, 873 (2d

Cir. 1995) (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)).

1. Claims Against Mallon and Dr. Reisman

Grant does not allege facts suggesting that either Mallon or Dr. Reisman violated her

federal statutory or constitutional rights. First, the only allegations in the complaints pertaining

to Mallon state that she “tipped of[f]” the police regarding conditions in the house. A private

actor who makes false statements to the police with the intent to have an innocent person arrested

can be held liable under § 1983 “for invoking the state’s power to intentionally violate a citizen’s

constitutional rights.” Weintraub v. Bd. of Educ., 423 F. Supp. 2d 38, 58 (E.D.N.Y. 2006).

However, Grant does not allege what information Mallon provided to the police, much less

allege that the information was false. Accordingly, Grant’s claims against defendant Mallon are

dismissed without prejudice and with leave to replead.

Second, the only allegations against Dr. Reisman are that he submitted fraudulent bills to

Grant, prevented her from having the animals examined by an independent veterinarian retained

by defense counsel, and falsely accused her of animal abuse. Although Grant alleges that the

fraudulent billing somehow led to her incarceration, the documents attached to Grant’s complaint

in Grant v. Zaro, No. 19-CV-2832 (RRM) (LB), indicate that she was initially convicted of

violating section 353 of the New York Agriculture and Markets Law and subsequently jailed for

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various violations of probation and assault. (See Zaro Compl. (Doc. No. 1) at 38). Grant alleges

no facts to suggest that the allegedly fraudulent billing violated her federal constitutional or

statutory rights. Similarly, Grant does not allege that Dr. Reisman’s refusal to permit the

independent veterinarian access to the animals deprived her of exculpatory evidence or otherwise

violated her federal rights. Accordingly, these claims against defendant Reisman are dismissed

without prejudice and with leave to replead.

Grant’s claim that Dr. Reisman falsely accused her of animal abuse presumably pertains

to his testimony before the grand jury or at trial. Because Dr. Reisman enjoys witness immunity

with respect to this testimony, any claim attempting to impose liability for false testimony is

dismissed with prejudice.

2. Claims Against Officer Vultaggio

Grant’s claims against Officer Vultaggio appear to relate solely to the legality of the

January 28, 2016, search and appear to be barred by Heck v. Humphrey, 512 U.S. 477 (1994). In

Heck, the Supreme Court held that in order to recover damages for “harm caused by actions

whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove

that the conviction or sentence has been reversed on direct appeal, expunged by executive order,

declared invalid by a state tribunal authorized to make such determination, or called into

question by a federal court’s issuance of a writ of habeas corpus ....” /d. at 486-87. “[A] suit

for damages attributable to an allegedly unreasonable search may lie even if the challenged

search produced evidence that was introduced in a state criminal trial resulting in the

§ 1983 plaintiff's still-outstanding conviction,” but only if the suit “would not necessarily imply

that the plaintiff's conviction was unlawful.” /d. at 487 n.7 (emphasis omitted). In other words,

Heck would not preclude a §1983 action to recover damages for “an unlawful search whose

illegality would not affect the validity of the conviction.” Woods v. Candela, 47 F.3d 545, 546

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(2d Cir. 1995); accord Toliver v. City of New York, Nos. 10-CV-3165, 10-CV-6619 (PAC)

(JCF), 2011 WL 4964919, at *8 (S.D.N.Y. Sept. 15, 2011) (“[WJhere the plaintiff's ... conviction

was not dependent on the allegedly unconstitutional seizure, a §1983 claim is not barred by

Heck.”), report and recommendation adopted, 2011 WL 4964665 (S.D.N.Y. Oct. 18, 2011).

Although “[t]he inquiry as to whether a recovery on [a] § 1983 ... claim ... would

necessarily imply the invalidity of any conviction ... is inherently a factual one,” Covington v.

City of New York, 171 F.3d 117, 122 (2d Cir. 1999), it is clear that Grant’s 2018 conviction was

predicated largely, if not entirely, on evidence uncovered during the search. Accordingly, the

claim that Vultaggio violated Grant’s Fourth and Fourteenth Amendment rights by unlawfully

searching her home and seizing her pets is barred by Heck.

To the extent that Grant is seeking to hold Vultaggio or other officers liable for damage

to her house and furniture during the search, her complaints do not allege sufficient facts to make

out a Fourth Amendment claim. “[I]t is well recognized that ‘officers executing search warrants

on occasion must damage property in order to perform their duty.’” Cody v. Mello, 59 F.3d 13,

16 (2d Cir. 1995) (quoting Dalia v. United States, 441 U.S. 238, 258 (1979)). However,

“Te]xcessive or unnecessary destruction of property in the course of a search may violate the

Fourth Amendment ....” United States v. Ramirez, 523 U.S. 65, 71 (1998). Because Grant has

not alleged any facts to suggest that Vultaggio or other officers engaged in excessive or

unnecessary destruction of property, she had not stated a Fourth Amendment claim.

Accordingly, this claim against defendant Vultaggio is dismissed without prejudice and with

leave to replead. .

K. Leave to Amend

Although the complaints in these five actions are dismissed pursuant to 28 U.S.C. §§

1915A(b), 1915(e)(2)(B), the Second Circuit has repeatedly stated that “[a] pro se complaint

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should not [be] dismiss[ed] without [the Court] granting leave to amend at least once when a

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

v. Connolly, 794 F.3d 290, 295 (2d Cir. 2015) (quoting Chavis v. Chappius, 618 F.3d 162, 170

(2d Cir. 2010) (alterations in original)). Although some of the defendants enjoy absolute

immunity, some of the claims are barred by collateral estoppel and res judicata, and yet other

claims are precluded by Heck, there is a possibility that Grant could allege additional facts to

state § 1983 claims against some of the defendants. Accordingly, the Court gives Grant leave to

file an amended complaint within 30 days of the date of this Order.

L. Applications for Appointment of Counsel

“To determine whether to appoint counsel in a civil case, a district court should first

consider whether the indigent litigant’s position is likely to be of substance.” Ganley v. City of

New York, 734 F. App’x 784, 785-86 (2d Cir. 2018) (summary order) (citing Hodge v. Police

Officers, 802 F.2d 58, 60-61 (2d Cir. 1986)). “If the district court determines that ‘threshold

requirement’ has been met, it should then consider factors including the litigant’s ability to

investigate his claims, the litigant’s ability to present the case, the complexity of the legal issues,

and ‘any special reason ... why appointment of counsel would be more likely to lead to a just

determination.”” /d. (quoting Hodge, 802 F.2d at 61-62).

At this juncture, Grant has not met the threshold requirement. Although the Court has

granted her leave to file an amended complaint, it remains unclear whether any of her claims will

prove to be of substance. Moreover, Grant has not articulated a good reason for appointing

counsel. While Grant is clearly entitled to assistance of counsel in the pending criminal case, see

U.S. Const., amend VI, she does not have a Sixth Amendment right to counsel in civil actions.

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M. Warning

Although the Court understands that Grant is anxious to obtain relief as soon as possible,

she must discontinue her practice of filing multiple, duplicative cases with the Court. Judicial

resources are limited. “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). Grant is warned that the future filing of

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

prohibiting her 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 quotation marks and citations

omitted)); Pierre v. U.S. Postal Serv., No. 18-CV-7474 (MKB), 2019 WL 653154, at *4

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

CONCLUSION

For the reasons stated above, the complaints in each of the above-captioned actions are

dismissed. See 28 U.S.C. §§ 1915A(b), 1915(e)(2)(B). The five actions are consolidated under

Docket No. 19-CV-2148 (RRM) (LB), and the Clerk of Court is directed to close the other four

cases: Nos. | 9-CV-2204 (RRM) (LB), 19-CV-2911 (RRM) (LB), 19-CV-3244 (RRM) (LB), and

19-CV-3689 (RRM) (LB). .

Grant shall have 30 days from the date of this Order in which to file an amended

complaint. That amended pleading must be captioned ‘““Amended Complaint” and bear docket

number 19-CV-2148 (RRM) (LB). If Grant elects to file an amended complaint, that pleading

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shall not name defendants who have been dismissed with prejudice or raise claims which have

been dismissed with prejudice in this Order. The amended complaint must be entirely legible

and should set forth factual allegations in numbered paragraphs, organized in a chronological

manner. The paragraphs must give the date and location of the action or omission giving rise to

each § 1983 claim, name the specific defendant(s) alleged to be responsible for each action or

omission, explain exactly what each defendant did or failed to do, and explain how that action or

omission led to a deprivation of Grant’s federal constitutional or statutory rights. If Grant fails to

file an amended complaint that meets these requirements within the time allowed or to show

good cause why she cannot do so, the consolidated action —- No. 19-CV-2148 (RRM) (LB) - will

be dismissed.

The Clerk of Court is directed to mail a copy of this Order to Grant and to note the

mailing on the docket. All further proceedings shall be stayed for 30 days. The Court certifies

pursuant to 28 U.S.C. § 1915(a)(3) that any appeal 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.

Dated: Brooklyn, New York

Dec. o-~ ,2019 s/Roslynn R. Mauskopf

ROSLYNN R. MAUSKOPF |

United States District Judge

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