Jackson v. Cnty. of Nassau, 15-CV-7218(SJF)(AKT)

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Writing for the CourtFEUERSTEIN, District Judge
PartiesERWIN JACKSON, #08A5175, Plaintiff, v. COUNTY OF NASSAU, MERYL J. BERKOWITZ, in her official and individual capacity, and AMES C. GREWERT, in his official and individual capacity, Defendants.
Decision Date13 April 2016
Docket Number15-CV-7218(SJF)(AKT)

ERWIN JACKSON, #08A5175, Plaintiff,
COUNTY OF NASSAU, MERYL J. BERKOWITZ, in her official and individual capacity,
and AMES C. GREWERT, in his official and individual capacity, Defendants.



April 13, 2016


FEUERSTEIN, District Judge:

I. Introduction

On December 11, 2015, incarcerated pro se plaintiff Erwin Jackson ("plaintiff") filed a complaint in this Court pursuant to 42 U.S.C. § 1983 ("Section 1983") against the County of Nassau ("the County"); the Honorable Meryl J. Berkowitz ("Judge Berkowitz"), Acting Supreme Court Justice; and Ames C. Grewert ("ADA Grewert"), an Assistant District Attorney in the Nassau County District Attorney's Office (collectively, "defendants"), accompanied by an application to proceed in forma pauperis. By Order dated March 18, 2016, plaintiff's application to proceed in forma pauperis was denied pursuant to 28 U.S.C. § 1915(g), and plaintiff was directed to pay the full amount of the Court's filing fee. See 28 U.S.C. § 1914(a). On or about April 1, 2016, plaintiff paid the requisite filing fee. Nonetheless, for the reasons set forth below, plaintiff's claims are sua sponte dismissed in their entirety with prejudice pursuant to 28 U.S.C. § 1915A(b).

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II. Plaintiff's Claims

A. Claims against Judge Berkowitz

In his first cause of action, plaintiff alleges, inter alia, that from 2012 through 2015, Judge Berkowitz, "[w]hile acting under the color of State law as an [sic] temporarily appointed Nassau County Acting Supreme Court Justice, in the complete absence of being duly sworn and failing to file her Constitutional oath of office as mandated by law, unlawfully acquired subject matter jurisdiction over the plaintiff's persons [sic] and collaterial [sic] post-conviction motions." (Complaint ["Compl."], ¶ 1). According to plaintiff, although Judge Berkowitz was "made aware by the plaintiff that she lacked jurisdiction to preside over the plaintiff's post-conviction motions which were dated April 23, 2015 and as amended April 28, 2015[,] [she] intentionally refused to disqualify herself . . .[,] [and] intentional[ly] rubber stamp[ed] [the] denial of the plaintiff's non-frivolus [sic] substantial post-conviction motions whereby dening [sic] the plaintiff access to a court of competent jurisdiction . . . ." (Id., ¶ 2) (emphasis omitted). Plaintiff further alleges that Judge Berkowitz, (1) "established an [sic] non-judicial individual and personal custom, policy, and practice of intentionally dening [sic] and rubber-stamping all pro se motions/petitions submitted by [him] in the absence of giving any ruling or determination on the merits of the federal constitutional presented claims," (id., ¶ 3); (2) "instructed and allowed her law secretary . . . to rubber stamp and deny any and every motion/petition submitted by [him][,]" (id., ¶ 4); and (3) "authorized herself and [her] law secretary to participate in ex parte communiciations [sic] with any Nassau County Assistant District Attorney which is assigned to answer and oppose [his] post-conviction motions[] . . . [as] part of an [sic] non-judicial and non-authorized scheme and plot to deny and defeat any and every pro se motion submitted by [him]."

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(Id., ¶ 5). According to plaintiff,

"[a]t all times during [Judge] Berkowitz's commission and performance of said acts [her] judicial bench was deemed vacant by operation of law due to her failure to be sworn and to file her mandatory oath of office, and therefore [she] was not legally performing any judicial duties in a capacity of an [sic] 'State' official and/or employee (11th Amendment), and the acts that were performed by [her] were in complete absence of jurisdiction and were non-judicial (negating absolute immunity protection and defense)."

(Compl. at 5).

In his second cause of action, plaintiff alleges, inter alia, that Judge Berkowitz, "an unsworn temporaily [sic] appointed Nassau County Acting Supreme Court Justice, while acting under the color of State law and in the complete absence of constitutional, statutory, and common-law jurisdiction, violated [his] federal constitutional rights [by] . . . entertain[ing] and thereafter grant[ing] an unauthorized petition submitted by [ADA Grewert] which was dated June 17, 2015 which sought an injunction precluding . . . plaintiff . . . from filing any further motions pursuant to criminal indictment #2826NO5 with the court." (Compl., ¶ 6). According to plaintiff, Judge Berkowitz, "being fully aware that no statutory authority exist [sic] which authorizes an assistant district attorney to confer jurisdiction upon any court by way of petition seeking to preclude a pro se criminal defendant/litigant from accessing the court, with an [sic] deliberate indifference to the federal constitutional rights of the plaintiff and in total absence of jurisdiction, granted the assistant district attorney's unauthorized petition[] . . . [without] afford[ing] the plaintiff an [sic] hearing or an opportunity to be heard. . . in direct retaliation . . . [for] plaintiff's continuous attempts to access the court." (Id.)

In plaintiff's fourth cause of action, he alleges, inter alia, that Judge Berkowitz "knew that [ADA] Grewert's petition for an injunction was not lawfully submitted and . . . contained

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facts which were falsely sworn to . . .[;] [and] that [ADA] Grewert lacked authority to represent her in regards to [] plaintiff's disqualification/recusal application[,] . . . [but] disregarded such . . . [with] deliberate[] indifferen[ce] to [his] federal constitutional rights." (Compl., ¶ 17).

B. Claims against ADA Grewert

In his third cause of action, plaintiff alleges, inter alia, that ADA Grewert "illegally conferred jurisdiction upon an unsworn court and/or judge [Judge Berkowitz] by submitting a petition dated June 17, 2015 seeking and obtaining an injunction precluding [him] from motioning [sic] the court for relief." (Compl., ¶ 8). According to plaintiff, ADA Grewert "intentionally caused [him] harm . . . without excuse or justification in order to obtain a collateral objective that is outside the legitimate ends of the [sic] process[,]" (id., ¶ 9), and "stepped outside of his prosecutorial zone by seeking and obtaining such injunction for the sole purpose of punishing the plaintiff and retaliating against [him] due to the plaintiff's continuous attempts to exercise his rights to access the court in order to be heard on the merits of his federal constitutional claims." (Id., ¶ 10).

In his fourth cause of action, plaintiff alleges, inter alia, that ADA Grewert, "in complete absence of jurisdiction, appeared as an 'attorney' on behalf of [Judge] Berkowitz by submitting an opposing affidavit [in opposition to plaintiff's motion to disqualify and/or recuse Judge Berkowitz] which contained facts which were falsely sworn to dated June 17, 2015." (Compl., ¶¶ 13-14). According to plaintiff, ADA Grewert, "knowing that [Judge] Berkowitz would accept (without questioning) and entertain and thereafter grant such unauthorized and perjured affidavit, intentionally submitted [it] . . . for the purpose of having [Judge] Berkowitz punish the plaintiff

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by dening [sic] [his] pending post-conviction motions without considering the merits of such," (id., ¶ 15); and "stepped outside of his prosecutorial zone by becoming a witness on behalf of [Judge] Berkowitz; by representing [Judge] Berkowitz; and by swearing falsely as an [sic] witness to facts alleged in his jurisdictionally defective petition for an [sic] preclusion injunction." (Id., ¶ 16).

C. Claims against the County

In his fifth cause of action, plaintiff alleges, inter alia, that the County "is required by law to assure that all elected and/or appointed Public Officials that presides [sic] in its geographical County . . . take and thereafter file their Constitutional oath of office as prescribed and mandated by law[;] [and] [t]he failure to do so prohibits the official from entering upon the performance of his/her elected, chosen or appointed duties and renders their position vacant by operation of law." (Compl., ¶ 18). According to plaintiff, the County "has an unwritten custom, policy, and practice which allows elected and temporaily [sic] appointed judges to preside on the bench in its County in the total absence of taking and filing their oath of office . . . [,]" (id., ¶ 19); and "maintains the custom, policy, and practice of allowing the supervising Nassau County Clerks [sic] Office to turn an [sic] blind eye by not informing said judges that their oath of office is not on file whereby condoning, approving, and endorsing said judges unauthorized presiding upon an unsworn bench," (id., ¶ 20), thereby depriving criminal defendants, including plaintiff, "their constitutional rights to be held, heard, tried and punished before and by an [sic] duly sworn court/judge that has competent jurisdiction . . . over the criminal proceedings." (Id., ¶ 21). Plaintiff further alleges that the County "fails to implement and enforce" the "statutes,

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procedures, and established laws mandating without exception the taking and filing of judicial oaths of office[] . . . [and] requir[ing] its County Clerk employees to serve notice upon every Public Official that has failed to timely take and file their constitutional oath of office[,]" (id., ¶ 23); and "has allowed [Judge] Berkowitz to preside on the unsworn bench from approximately the year 2006 to 2015." (Id., ¶ 24).

In his sixth cause of action, plaintiff alleges, inter alia, (1) that "[t]he Nassau County District Attorney, a manager and policy-maker in her office, has established unwritten customs, policies, and practices which authorize and permits [sic] her appointed and hired assistant district attorneys to submit opposing affidavits and/or affirmations which contains [sic] knowingly sworn to false statements and facts which are designed to deceive and mislead the...

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