Mills v. Noonan, 1:16-cv-00984-MAT

• Decision Date: 13 April 2017
• Docket Number: No. 1:16-cv-00984-MAT,1:16-cv-00984-MAT
• Parties: RICHARD MILLS, Plaintiff, v. ROBERT C. NOONAN, Genesee County, RANDOLPH ZICKL, WILLIAM ZICKL, ROBERT ZICKL, LAWRENCE FRIEDMAN, DAVID GANN, CHARLES ZAMBTIO, JOHN RIZZO, DAVID MORABITO, STATE OF NEW YORK (Injunctive Relief) Defendants.
• Court: U.S. District Court — Western District of New York

RICHARD MILLS, Plaintiff, v. ROBERT C. NOONAN, Genesee County, RANDOLPH ZICKL,WILLIAM ZICKL, ROBERT ZICKL, LAWRENCE FRIEDMAN, DAVID GANN,CHARLES ZAMBTIO, JOHN RIZZO, DAVID MORABITO, STATE

OF NEW YORK (Injunctive Relief) Defendants.

No. 1:16-cv-00984-MAT

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

April 13, 2017

DECISION AND ORDER

INTRODUCTION

Pro se plaintiff Richard Mills ("Plaintiff"), an inmate at Five Points Correctional Facility, has filed a complaint (Dkt #1) alleging multiple violations of the United States Constitution; the New York State Constitution; various Federal statutes; and New York State common law and statutory law. Plaintiff alleges that the named defendants have repeatedly denied him of his constitutional rights in relation to his 2004 conviction in Genesee County Court, as well as various non-criminal state court proceedings in which he was a party.

Plaintiff also has filed a motion to proceed in forma pauperis (Dkt #2) and a motion for discovery (Dkt #3) pursuant to Rule 26(a)(1)(A) of the Federal Rules of Civil Procedure ("F.R.C.P.") and Rule 5.2 of the Local Rules of Civil Procedure for the Western District of New York.

The Court has reviewed Plaintiff's pleadings in view of the relevant provisions of the Prison Litigation Reform Act, Pub. L. 104-134, 110 Stat. 1321 ("PLRA"), 28 U.S.C. § 1915 et seq. For the reasons set forth below, Plaintiff's IFP motion is denied. Plaintiff's complaint is dismissed with prejudice. Plaintiff's miscellaneous motions are denied as moot.

THE IFP MOTION

"Prisoner-plaintiffs who have accumulated three strikes are prohibited by the PLRA from bringing further actions or appeals in forma pauperis." Harris v. City of N.Y., 607 F.3d 18, 21 (2d Cir. 2010) (citing 28 U.S.C. § 1915(g)). Plaintiff has been subject to the three strikes rule, 28 U.S.C. § 1915(g), since at least 2007.¹ Because three or more of his lawsuits while he has been incarcerated have been dismissed as "frivolous [or] malicious or [for] fail[ure] to state a claim upon which relief may be granted," Plaintiff is ineligible by statute to file in forma pauperis ("IFP") "unless [he] is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g); see also Pettus v. Morgenthau, 554 F.3d 293, 295 (2d Cir. 2009). In this case, he has filed a motion to proceed IFP and a Prison Authorization pursuant to 28 U.S.C.§ 1915(a)-(b), but has not attempted to allege that he is in "imminent danger of serious physical injury[,]" 28 U.S.C. § 1915(g).

Nonetheless, in the interest of judicial economy, the Court will assume arguendo that Plaintiff is entitled to proceed IFP, and will review the complaint. As discussed further below, the Court finds that the complaint does not survive initial screening under 28 U.S.C. § 1915A.

THE COMPLAINT

I. Standard of Review under 28 U.S.C. § 1915A

Under 28 U.S.C. § 1915A ("Section 1915A"), a district court must screen prisoners' civil complaints that name government officials or entities as defendants, and it must dismiss such complaints if certain criteria are met. E.g., Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir. 1999) (per curiam) (discussing 28 U.S.C. § 1915A). Section 1915A provides that the district court must perform this screening as early as possible in the lawsuit. See 28 U.S.C. § 1915A ("The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.").

Upon initial screening, "the court shall identify cognizable claims or 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." 28 U.S.C. § 1915A. "An action is 'frivolous' for § 1915(e) purposes if it has no arguable basis in law or fact, as is the case if it is based on an 'indisputably meritless legal theory.'" Montero v. Travis, 171 F.3d 757, 759 (2d Cir. 1999) (quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989)).

"The language of the statute does not distinguish between prisoners who proceed in forma pauperis and prisoners who pay the requisite filing fee." Carr, 171 F.3d at 116.

II. Analysis

A. Parties Sued by Plaintiff

Plaintiff has sued Genesee County ("the County") and the State of New York ("the State"). In addition, he has named Honorable Robert C. Noonan ("Judge Noonan"), whom he states is an Acting Justice of New York State Supreme Court Judge, Genesee County, and a Genesee County Court Judge. Plaintiff has sued Randolph Zickl, William Zickl, and Robert Zickl (collectively, "the Zickl Brothers"). He asserts that Randolph Zickl "was the assigned counsel administrator for Genesee County"; William Zickl "was and/or is a Assistant District Attorney in Genesee County"; and Robert Zickl "was and/or is a prosecutor of Genesee County[.]" (Complaint ("Comp.") (Dkt #1) (¶¶ 7-9). Plaintiff has sued LawrenceFriedman ("Friedman"), whom he states "is and/or was the Head District Attorney" of Genesee County; David Gann ("Gann"), who "was and/or is a prosecutor for Genesee County"; Charles Zambito ("Zambito"), who "was and/or is the Genesee County Attorney"; John Rizzo ("Rizzo") who also "was and/or is the Genesee County Attorney"; and David Morabito ("Morabito"), who was one of the attorneys assigned to represent Plaintiff during his 2004 criminal proceeding. (Comp. ¶¶ 10-14).

B. The Federal Statutes Cited by Plaintiff

In his "Statement of Jurisdiction," Plaintiff asserts that his lawsuit is brought pursuant to 42 U.S.C. § 1981, 42 U.S.C. § 1983, 42 U.S.C. § 1985, and 18 U.S.C. § 1964(d). However, as discussed below, he has failed to state claims under any of these statutes.

1. 42 U.S.C. § 1981

A § 1981 claim requires a plaintiff to allege facts supporting the following elements: (1) he is a member of a racial minority; (2) defendants intentionally discriminated on the basis of race; and (3) the discrimination occurred in regards to one of § 1981's enumerated activities, such as the right to make and enforce contracts. Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993) (per curiam). Plaintiff has not alleged that he is a member of a racial minority, nor could he plausibly do so. Any purported claim under 42 U.S.C. § 1981 is frivolous and must be dismissed.

2. 42 U.S.C. § 1983

Under § 1983, "'anyone acting under color of any [state] statute, ordinance, regulation, custom, or usage,' who causes a United States citizen to be deprived 'of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.'" Sybalski v. Indep. Grp. Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008) (quoting 42 U.S.C. § 1983). A plaintiff seeking relief under § 1983 "must allege that (1) the challenged conduct was attributable to a person acting under color of state law, and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution." Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999) (citation omitted).

The Court now examines the allegations in Plaintiff's ten causes of action to determine whether they state any colorable claim under § 1983.

a. First Cause of Action

Plaintiff alleges that the County, Rizzo, Zambito, Friedman, the Zickl Brothers, and Judge Noonan have "set up a corrupted Judicial System in Genesee County based upon nepotism." (Comp. ¶ 45; see also id. ¶¶ 46-64). For instance, Plaintiff alleges, "Defendants controlled what attorneys were assigned in the Genesee Courts in entirety, including the Family Court, they controlled the Judicial Decisions coming from the bench, they controlled each andevery aspect of the judicial system in Genesee County." (Id. ¶ 52). Plaintiff then repeats his allegations from his duplicative Rule 60(b) motions that he filed in 2016 in all of his cases in this Court, regarding the family relations between Judge Noonan and the Zwickl Brothers. Plaintiff asserts that as "a result of the foregoing violations and judicial corruptions" by these defendants, he "has sustained prolonged incarceration, lost [sic] of family ties, lost [sic] of inheritance, loss of legal fees, lost [sic] of equity, lost [sic] of personal property, and violations of his constitutional rights." (Id. ¶ 62).

Plaintiff has not adequately alleged personal involvement by Rizzo and Zambito in the claims of purported constitutional violations. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) ("It 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.'") (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994); further quotation omitted). The first cause of action must be dismissed as to Rizzo and Zambito on this basis.

With regard to the County's alleged liability, "a municipality can be sued under § 1983, but it cannot be held liable unless a municipal policy or custom caused the constitutional injury." Leatherman v. Tarrant Cnty. Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 166 (1993) (citing Monell v. New York CityDept. of Soc. Servs., 436 U.S. 658 (1978)). Plaintiff does not have a viable claim against the County because he has failed to allege any non-conclusory, non-speculative facts showing that there is a county-wide policy, "unspoken or otherwise—that violates the Federal Constitution." 5 Borough Pawn, LLC v. City of N.Y., 640 F. Supp.2d 268, 300 (S.D.N.Y. 2009).

Next, Plaintiff's allegations that the defendants named in this cause of action established a "corrupt" and "biased" judicial system in the County are factually vague, fail to ascribe any particular unconstitutional acts to Friedman, the Zickl Brothers and Judge Noonan, and...