Daniel v. Safir

• Decision Date: 15 February 2001
• Docket Number: No. CV-99-6396(NG)(SMG).,CV-99-6396(NG)(SMG).
• Citation: 135 F.Supp.2d 367
• Parties: Elridge DANIEL, Jr., Plaintiff, v. Howard SAFIR, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

135 F.Supp.2d 367

Elridge DANIEL, Jr., Plaintiff, v. Howard SAFIR, et al., Defendants.

No. CV-99-6396(NG)(SMG).

United States District Court, E.D. New York.

February 15, 2001.

Supplemental Order February 23, 2001.

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Elridge Daniel, Jr., Brooklyn, NY, plaintiff pro se.

Robert Friedman, Brooklyn, New York, defendant pro se.

Lisa J. Black, Assistant Corporation Counsel, City of New York, Law Department, New York City, for Howard Safir, defendant.

Gregg D. Weinstock, Garbarini & Scher, P.C., New York City, for Robert Baum and the Legal Aid Society.

Richard H. Dolan, Schlam Stone & Dolan, LLP, New York City, for Verizon Corporation.

Charles F. Sanders, Assistant Attorney General, State of New York, Office of the Attorney General, New York City, for the Honorable Karen B. Yellen and Law Clerks.

ORDER

GERSHON, District Judge.

The motions of various defendants in this pro se civil rights case were referred to the Honorable Steven M. Gold, Magistrate Judge. I have reviewed de novo Judge Gold's report and plaintiff's objections to it. Plaintiff's objections are without merit and Judge Gold's thorough report is hereby adopted in its entirety. The motions to dismiss brought by Judge Karen B. Yellen; her law clerks; Judge Stephen J. Rooney's law clerk; Robert Baum; the Legal Aid Society; Garbarini & Scher, P.C.; and Verizon Corporation are granted in their entirety and all claims against these defendants are dismissed. The motion to dismiss by Robert Friedman is granted to the extent that all purported federal claims against him are dismissed; however, as recommended by Judge Gold, the court declines to exercise supplemental jurisdiction over the state claims against Mr. Friedman and those claims are dismissed without prejudice. Finally, all motions for sanctions are denied for the reasons stated by Judge Gold.

SO ORDERED.

ORDER

On February 15, 2001, the court reviewed de novo Magistrate Judge Gold's report and plaintiff's objections to it, and adopted Judge Gold's report in its entirety. In granting the motions to dismiss of various defendants, including Garbarini & Sober, P.C., the court inadvertently did not include Gregg Weinstock, an attorney with that law firm who also was named as a defendant. Plaintiff's claims against Mr. Weinstock are the same as his claims against Garbarini & Scher, P.C. For the reasons stated in Judge Gold's report and recommendation, the motion to dismiss brought by Gregg Weinstock is granted in its entirety and all claims against him are dismissed. All motions for sanctions are denied for the reasons stated by Judge Gold.

SO ORDERED.

REPORT AND RECOMMENDATION

GOLD, United States Magistrate Judge.

Introduction

Plaintiff, Elridge Daniel, Jr., proceeding pro se, brings this action asserting Various civil rights violations. Most, but not all of his claims, appear to arise from his arrest and prosecution for criminal harassment in 1995. Although the precise nature of the circumstances giving rise to this lawsuit are unclear, the following facts may be culled from the papers submitted by the parties. On April 25, 1995, plaintiff was arrested for allegedly threatening to commit arson in retaliation for the New York City Fire Department's purported failure to address complaints he lodged with the F.D.N.Y. Action Line. Plaintiff was charged with criminal harassment and was appointed a Legal Aid Society attorney. A letter from the Law Department of the City of New York indicates that the criminal action was adjourned in contemplation of dismissal on May 29, 1996. See Letter from Lisa J. Black, Asst. Corp. Counsel to Steven M. Gold, United States Magistrate Judge (May 12, 2000). No other information regarding the outcome of the action has been submitted to this Court.

Plaintiff now brings this lawsuit against various individuals and entities, some of which were connected with the criminal proceedings. The defendants include Legal Aid attorney Richard Baum, who represented plaintiff in the criminal action, the Legal Aid Society, Garbarini & Scher, P.C., counsel for Baum in this action, the Honorable Karen B. Yellen, who presided at the criminal proceedings, Judge Yellen's law clerks, Judge Stephen J. Rooney's law clerk, and Verizon Corporation ("Verizon") (formerly, and sued as, Bell Atlantic Telephone Corporation), which produced plaintiff's phone records in the criminal trial pursuant to subpoena.¹ Plaintiff claims that these individuals and entities deprived him of his constitutional rights, and seeks relief under the civil rights statutes, 42 U.S.C. §§ 1981, 1982, and 1983. Plaintiff also claims that a computer salesperson, Robert Friedman, damaged plaintiff's computer equipment in violation of his constitutional rights. The claims asserted against Friedman appear unconnected to the underlying criminal matter. In addition to these claims, plaintiff alleges that defendants violated a number of criminal and civil state and federal laws. Defendants now move separately to dismiss plaintiff's claims pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted.

The Honorable Nina Gershon has referred defendants' motions to me for a report and recommendation. For the reasons discussed below, I respectfully recommend that defendants' motions to dismiss be granted and plaintiff's claims as to these defendants be dismissed.

Discussion

A. Standard of Review

A court may grant a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). A court must take as true all the facts alleged in the complaint and draw all reasonable inferences in the plaintiff's favor. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); DeJesus v. Sears, Roebuck & Co., Inc., 87 F.3d 65, 69 (2d Cir.1996). Moreover, pro se complaints are held to "less stringent standards than formal pleadings drafted by lawyers," and are to be construed liberally. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972) (per curiam); see also Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir.1997). Nevertheless, to survive a Rule 12(b)(6) motion, a civil rights complaint must contain "more than naked improbable unsubstantiated assertions without any specifics." Neustein v. Orbach, 732 F.Supp. 333, 346 (E.D.N.Y. 1990). Similarly, a complaint asserting "only conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional rights cannot withstand a motion to dismiss." Leon v. Murphy, 988 F.2d 303, 311 (2d Cir.1993) (quoting Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir. 1983)) (per curiam).

B. Judge Yellen and the Law Clerk Defendants

Plaintiff raises a host of claims against Judge Yellen and her law clerks, as well as Judge Rooney's law clerk,² seeking relief for alleged violations of plaintiff's constitutional rights and various federal statutes. See Amend.Compl., ¶ 24. Plaintiff does not indicate in his Amended Complaint whether he seeks to sue these defendants in their personal or official capacities. To the extent plaintiff asserts official capacity claims, they are barred by the Eleventh Amendment and the United States Supreme Court's holding in Will v. Michigan Dep't of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). To the extent plaintiff sues these defendants in their personal capacity, his claims are precluded by the doctrine of judicial immunity. See Kentucky v. Graham, 473 U.S. 159, 166-67, 105 S.Ct. 3099, 3105-3106, 87 L.Ed.2d 114 (1985) (holding that the immunities available to a defendant in an official capacity are forms of sovereign immunity such as the Eleventh Amendment, whereas the immunities available in a personal capacity lawsuit are personal defenses such as objectively reasonable reliance on existing law.)

The Eleventh Amendment provides: "[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,³ or by Citizens or subjects of any Foreign State." U.S. Const. amend. XI. Therefore, pursuant to the Eleventh Amendment, a "state, its agencies and state officials sued in their official capacities are all immune from suit in federal court brought by a citizen of that state...." Richards v. State of New York, 597 F.Supp. 692, 693 (E.D.N.Y.1984), aff'd, 767 F.2d 908 (2d Cir.1985). Suits against state actors in their official capacity are barred by the Eleventh Amendment because they "`generally represent only another way of pleading an action against an entity of which an officer is an agent.'" Kentucky v. Graham, 473 U.S. at 165, 105 S.Ct. at 3105 (quoting Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 2035 n. 55, 56 L.Ed.2d 611 (1978)). For this reason, the "immunities available to the defendant in an official-capacity action are those that the governmental entity possesses." Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 362, 116 L.Ed.2d 301 (1991).

Here, the Criminal Court of the City of New York is a state agency, cf. Zuckerman v. Appellate Division, Second Dep't, Supreme Court of the State of New York, 421 F.2d 625, 626 & n. 1 (2d Cir.1970), and defendant Judge Yellen is being sued in connection with her actions as a Judge of the Criminal Court. Accordingly, plaintiff's complaint against Judge Yellen, to the extent it states a claim against Judge Yellen in her official capacity, is barred on Eleventh Amendment grounds. For the same reasons, plaintiff's claims against law clerks in the Criminal Court are also barred. See Thaler v. Casella, 960 F.Supp. 691, 700 (S.D.N.Y.1997) (holding that suit against a state Grievance Committee law clerk is barred by...