London v. Nassau Cnty. Dist. Attorney's Office
| Decision Date | 28 December 2020 |
| Docket Number | 20-CV-3989(JS)(AKT),20-CV-3988(JS)(AKT),20-CV-3990(JS)(AKT) |
| Parties | LENNOX LONDON, Plaintiff, v. NASSAU COUNTY DISTRICT ATTORNEY'S OFFICE; A.D.A. MICHELLE BURKE; D.A. MADELINE SINGAS; A.D.A. NICOLE ALOISE; FIRST PRECINCT P.O. ANDREW MIRANDA, SHIELD #0498; SUPERVISOR LT. KEVIN C. DRISCOLL, #7447; FIRST SQUAD DETECTIVES: 1ST PRECINCT DET. MATTHEW ANDOOS, DET. THROO, DET. MICHAEL FORANOCE, DET. MAZZIE; GOVERNOR ANDREW M. CUOMO; NASSAU COUNTY DISTRICT COURT; HON. JUDGE TERENCE P. MURPHY; HON. JUDGE MERYL J. BERKOWITZ; LEGAL AID SOCIETY OF NASSAU COUNY, N.Y.; and NANCY GARBER, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
APPEARANCES
For Plaintiff:
Lennox London, prose
Downstate Correctional Facility
121 Red Schoolhouse Road
P.O. Box F
Fishkill, New York 12524
For Defendants:
No appearances.
Before the Court are three civil rights Complaints filed by incarcerated pro se plaintiff Lennox London ("Plaintiff") pursuant to 42 U.S.C. § 1983 ("Section 1983"), together with an application to proceed in forma pauperis for each Complaint. For the reasons that follow, Plaintiff's applications to proceed in forma pauperis are GRANTED and the Complaints are CONSOLIDATEDinto the first filed case, Case Number 20-CV-3988(JS)(AKT). The Complaints assigned Case Numbers 20-CV-3989(JS)(AKT) and 20-CV-3990(JS)(AKT) shall be CLOSED. All future filings shall be made in Case Number 20-3988(JS)(AKT) only. In addition, Plaintiff's Section 1983 claims are DISMISSED, as set forth below, pursuant to 28 U.S.C. §§ 1915, 1915A.
In August 2020, Plaintiff filed three substantially similar Complaints against the same Defendants. On August 21, 2020, Plaintiff filed two Section 1983 Complaints in this Court against: the Nassau County District Attorney's Office, A.D.A. Michelle Burke ("ADA Burke"), D.A. Madeline Singas ("DA Singas"), A.D.A. Nicole Aloise ("ADA Aloise"), First Precinct P.O. Andrew Miranda, Shield #0498 ("PO Miranda"); Supervisor Lt. Kevin C. Driscoll, #7447 ("Lt. Driscoll"); the following First Squad Detectives: 1st Precinct Det. Matthew Andoos ("Det. Andoos"), Det. Throo ("Det. Throo"), Det. Michael Foranoce ("Det. Foranoce"), Det. Mazzie ("Det. Mazzie"); Governor Andrew M. Cuomo ("Gov. Cuomo"), Nassau County District Court ("NC District Court"), Hon. Judge Terence P. Murphy ("Judge Murphy"), Hon. Judge Meryl J. Berkowitz ("Judge Berkowitz"), Legal Aid Society Of Nassau County, N.Y. ("Legal Aid"), and Nancy Garber ("Garber"; collectively, the "Defendants"). The Complaint assigned docket number 20-CV-3988 was accompanied by an application to proceed in forma pauperis,but did not include the required Prisoner Litigation Authorization form ("PLRA"). (See 20-CV-3988, IFP Mot., D.E. 2.) Accordingly, by Notices of Deficiency dated August 26, 2020 and August 27, 2020, Plaintiff was instructed to complete and return the enclosed PLRA forms, which he did on September 3, 2020 and September 8, 2020. (PLRA, D.E. 8-9.)
The other August 21, 2020 Complaint was assigned Case Number 20-CV-3990 and, because Plaintiff had not paid the fee or filed an application to proceed in forma pauperis, by Notice of Deficiency dated August 27, 2020, Plaintiff was instructed to either remit the filing fee or file the enclosed application to proceed in forma pauperis and PLRA in order for his case to proceed. (D.E. 4.) On September 3, 2020, Plaintiff timely filed the PLRA (D.E. 6), and, on September 8, 2020, he filed an application to proceed in forma pauperis and another PLRA. (D.E. 7-8.)
On August 24, 2020, Plaintiff filed another Complaint, assigned Case Number 20-CV-3989, against the same Defendants. Because Plaintiff had not paid the fee or filed an application to proceed in forma pauperis, by Notice of Deficiency dated August 27, 2020, Plaintiff was instructed to either remit the filing fee or file the enclosed application to proceed in forma pauperis and PLRA in order for his case to proceed. (D.E. 4.) On September 8, 2020, Plaintiff timely filed an application to proceed in formapauperis and PLRA. (D.E. 7-8.)
Each Complaint names the same Defendants and contains the same allegations and claims. Plaintiff challenges his on-going state court criminal prosecution and seeks, among other things, the dismissal of the indictment and his release from incarceration. According to Plaintiff, he had an on-going dispute with his neighbor and, on August 27, 2019, he argued with his neighbor about tree branches Plaintiff claims were thrown on his lawn. (Compls. at 4.)2 Plaintiff alleges that his neighbor "shot at me before because he hates me, he said he never like me, so I shot to the ground to scare him away." (Compls. at 4.) As a result, Plaintiff was arrested and charged with attempted murder in the second degree and criminal possession of a weapon in the second degree. (Compls. at 9.)
Plaintiff complains that he was "overcharged by the ADA Michelle Burke and P.O. Andrew R. Miranda when I should not be charged with, my correct charges was attempted assault." (Compls. at 9.) According to Plaintiff, because no one was injured and,due to his mental illness,3 the charges are improper. (Compls. at 4, 7, 9.)
Plaintiff also complains that he was pressured by PO Miranda, Lt. Driscoll, Det. Andoss, Det. Mazzie, Det. Foranoce, and Det. Throo to give a statement even though he asked for a lawyer. Plaintiff claims that the officers did not "read me my rights." (Compls. at 9-10.) However, after "a few hours in the Interrogation Arrest Room," Plaintiff "told them what happened after being pressured, scared, tired, [and] drained" and "then they read me my rights." (Compls. at 10.) Plaintiff alleges that PO Miranda "lied on the Grand Jury stand when the ADA Michelle Burke asked him if he read me my rights before questioning me and said yes." (Compls. at 10.)
Next, Plaintiff challenges the amount set as bail during his arraignments. According to Plaintiff, he was first arraigned on August 28, 2019, with bail being set at $250,000. (Compls. at 11.) Plaintiff alleges that he had a "2nd arraignment . . . on September 24, 2019" where he was indicted on an additional fifteen counts and Judge Berkowitz set bail at either one-million dollars bond or half-a-million dollars cash. (Compls. at 11.) Plaintiff claims this bail is excessive and that his attorney, Garber, nevertold him about the second grand jury and waived his "right to testify without me knowing." (Compls. at 11.) According to Plaintiff, "I have a right to appear before a grand jury as a witness on my own behalf." (Compls. at 11.) Plaintiff also claims that ADA Burke failed to turn over unspecified exculpatory evidence. (Compls. at 13.)
Plaintiff also complains that his right to a speedy trial is being denied as a result of Governor Cuomo's suspension of (Compls. at 14-15.) According to Plaintiff, "[t]he COVID-19 Pandemic is not an exceptional circumstance to be used to justify suspending criminal procedure law." (Compls. at 21-22.)
Finally, Plaintiff complains that he is "vulnerable to the attack of the Coronavirus" because he is pre-diabetic and has underlying medical conditions, including tuberculosis, a weak immune system, and "breathing problems." (Compls. at 4, 8, 22-23.) However, ADA Aloise opposed his application for compassionate release, and it was denied by Judge Murphy. (Compls. at 23-24.) Plaintiff challenges that ruling, claiming that Judge Murphy and ADA Aloise "put themselves in the place of medical physicians putting plaintiff's life at risk by knowinglymaking a decision that was against top medical physicians that instructed the DOC and Jails to release underlined detainees with the illnesses that was vulnerable to the disease." (Compls. at 23.)
For relief, Plaintiff seeks to have the indictments dismissed with prejudice and to be released from incarceration. Plaintiff also seeks to recover a damages award in the total sum of three-and-a-half-million dollars. (Compls. at 5, 29-30.)
Upon review of Plaintiff's declarations in support of his applications to proceed in forma pauperis, the Court finds that Plaintiff is qualified by his financial status to commence this action without prepayment of the filing fees. See 28 U.S.C. § 1915(a)(1). Therefore, Plaintiff's requests to proceed in forma pauperis are GRANTED.
Under Federal Rule of Civil Procedure 42, "[i]f actions before the court involve a common question of law or fact, the court may: (1) join for hearing or trial any or all matters at issue in the actions; (2) consolidate the actions; or (3) issue any other orders to avoid unnecessary cost or delay." FED. R. CIV. P. 42(a). "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). Consolidation of cases with common questions of law or fact is favored "to avoid unnecessary costs or delay," Johnson, 899 F.2d at 1284, and to "expedite trial and eliminate unnecessary repetition and confusion," Devlin v. Transp. Commc'n Int'l Union, 175 F.3d 121, 130 (internal citations omitted).
Kellen Co., Inc. v. Calphalon Corp., 54 F. Supp. 2d 218, 221 (S.D.N.Y. 1999) (internal quotation marks, alterations, and citations omitted); accord Adam v. Jacobs, 950 F.2d 89, 92 (2d Cir. 1991); First City Nat'l Bank & Trust Co. v. Simmons, 878 F.2d...
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