UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

SAIO BARZEE, Plaintiff, V. 8:21-CV-902

(GTS/CFH) KENNETH H. TYLER, et al., Defendants.

APPEARANCES:

Saio Barzee 13-B-1933 Upstate Correctional Facility P.O. Box 2001 m| Malone, New York 12953 Plaintiff pro se CHRISTIAN F. HUMMEL UNITED STATES MAGISTRATE JUDGE

REPORT-RECOMMENDATION & ORDER

I. In Forma Pauperis

Plaintiff Saio Barzee (“plaintiff”), pro se, purported to commence this action on m August 11, 2021, with the filing of a complaint and, in lieu of paying this Court’s filing fee, a motion for leave to proceed in forma pauperis (“IFP”). See Dkt. No. 1 (““Compl.”); Dkt. No. 10. Plaintiff declares he is unable to pay the filing fee and has provided sufficient information, including a certified copy of his prisoner trust fund account. See Dkt. No. 10. The undersigned has reviewed plaintiff's IFP motion and determines that he financially qualifies to proceed IFP for the purpose of filing.

ll. Initial Review A. Legal Standard In addition to determining whether plaintiff qualifies for IFP status, the Court must consider the sufficiency of the complaint’s allegations pursuant to the standards set forth in Title 28 of the United States Code, Section 1915 (“Section 1915”). Section 1915 directs that, when a plaintiff seeks to proceed IFP, “the court shall dismiss the case at any time if the court determines that ... the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). Itisa court’s responsibility to determine that a plaintiff may properly maintain the complaint before permitting him to proceed with an action. See id.

Where, as here, the plaintiff acts pro se, “the court must construe his submissions liberally and interpret them to raise the strongest arguments that they Suggest.” Kirkland v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (per curiam) (internal quotation marks omitted). A pro se litigant’s pleadings are held to a less stringent standard than those drafted by an attorney. See Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008) (“Even in the formal litigation context, pro se litigants are held to a lesser pleading standard than other parties.”). However, this Plaintiff is advised that although he has been granted IFP status for the purposes of this review, he is still required to pay any fees and costs he might incur in this action.

“does not exempt a [pro se litigant] from compliance with relevant rules of procedural and substantive law.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (citations omitted).

Pursuant to the standards set forth in Federal Rule of Civil Procedure (“Fed. R. Civ. P.”), 8, a pleading must contain, inter alia, “a short and plain statement of the claim o showing that the pleader is entitled to relief.” See FED. R. Civ. P. 8(a)(2). “The purpose 1S to give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer, prepare an adequate defense and determine whether the doctrine of res judicata is applicable.” Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y. 1999) (internal quotation marks and citations omitted). Rule 8 also requires the pleading to include “a short and plain statement of the grounds for the Court's jurisdiction” and “a demand for the relief sought... .” FED. R. Civ. P. 8(a)(1), (3).

Although “[nJo technical form is required,” the rules make clear that each allegation contained in the pleading “must be simple, concise, and direct.” Feb. R. Civ. P. 8&(d). Further, Rule 10 provides:

[a] party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. A later pleading may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity, each claim founded on a separate transaction or occurrence — and each defense other than a denial — must be stated in a separate count or defense.

FED. R. Civ. P. 10(b). This serves the purpose of "provid[ing] an easy mode of identification for referring to a particular paragraph in a prior pleading[.]” Flores, 189 F.R.D. at 54 (internal quotation marks and citations omitted).

“In reviewing a complaint . . . the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.”

Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). A court should not dismiss a complaint if the plaintiff has stated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct ° alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).

As the Second Circuit has held, “[W]hen a complaint does not comply with the requirement that it be short and plain, the court has the power, on its own initiative ... to dismiss the complaint.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (citations omitted). If dismissal is warranted and the plaintiff is pro se, the court generally grants leave to amend “when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Chavis v. Chappis, 618 F.3d 162, 170 (2d Cir. 2010) (quoting Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991)). tri B. Complaint days of the completion” of the instant action; (7) the “exhaustion doctrine. . . is not required because [] plaintiff is not asking for the federal court to overturn his conviction’; (8) the People had reasonable notice and fair opportunity to review plaintiff's claims and correct any alleged errors “but failed to do so”; and (9) it is ADA Tyler's “special responsibilit[y]” as a prosecutor to “either file[] an answer admitting to the allegations raised’ in plaintiffs motion or file an “Article 78 mandamus to compel” Judge Dougherty to render a decision. Id. at 16-20, Jf] 49, 59.

“Count Two” of plaintiff's complaint demands injunctive relief compelling ADA Tyler to “stop instituting [or] allow to be instituted or maintain a criminal charge when the prosecutor knows or it is obvious that the charges raised in the indictment against [] plaintiff are not supported by probable cause[.]” Compl. at 20-21, | 60. He seeks to compel ADA Tyler to “openly declare. . .that the [] failure to file or serve any response papers shall be deemed as consent to the granting of’ his motion. Id. at 21, J 61. Additionally, he seeks to compel ADA Tyler, “in the interest of justice,” to “file a grievance against [Judge Dougherty]” and, assuming his declaratory relief request is successful and Judge Dougherty “refuses to follow” same, to file an “Article 78 mandamus to compel dismissal of the indictment[.]” Id. at 21, ] 62. Plaintiff also seeks | to compel ADA Tyler to provide plaintiff “with the pre-trial line up transcripts and with any other papers or transcripts which have not yet been disclosed to the plaintiff.” Id. at 21, 7 63.

Furthermore, as a part of Count Two’s injunctive relief request, plaintiff seeks to compel Judge Dougherty to “disqualify himself’ from presiding over the plaintiff's motion if he continues to: (1) “fail to determine that []plaintiffs CPL 440.10 motion papers have adequately met the burden of demonstrating that their [sic] exist substantial legal grounds for vacating the judgment”; (2) “fail to determine that . . . [the People] shall be deemed as giving consent”; or (3) “fail to render a decision as being requested by [] plaintifff.]” Compl. at 22, J] 64-66.

Finally, plaintiff contends that the “exhaustion of State remedies is not required | because (1) the delay is attributable to the State’s Court System and (2) there is an absence of available State corrective process, and that process, even if available, would be ineffective in protecting plaintiff's rights.” Compl. at 23, J 67. Plaintiff states that the “numerous letters written to the defendants. . . satisfies the exhaustion requirement[.]” Id. He concludes that it is ADA Tyler’s “duty to file an [A]rticle 78 mandamus to compel” Judge Dougherty “to render a decision” and give notice “of the [P]eople’s intentions.” Id. I C. Analysis* In light of plaintiff's pro se status, the undersigned has liberally construed the complaint’s allegations, identifying the strongest arguments raised therein. See Kirkland, 760 F.3d at 224. As asserted in his complaint, plaintiff brings this action pursuant to Title 28 of the United States Code, Section 1983 (“Section 1983”), which is | the appropriate mechanism for the relief sought. See Gonzaga Univ. v. Doe, 536 U.S. 273, 285 (2002) (noting that Section 1983 “provides a mechanism for enforcing individual rights ‘secured’ elsewhere, i.e., rights independently ‘secured by the Constitution and the laws’ of the United States.”). Plaintiff alleges violations of his

4 All unpublished opinions cited in this Report-Recommendation and Order, unless otherwise noted, have been provided to plaintiff.

federal constitutional rights, with specific claims relative to his procedural due process and equal protection rights guaranteed by the Fourteenth Amendment.

before the judge are considered judicial in nature[.]’ Bliven v. Hunt, 573 F.3d 204, 210 (2d Cir. 2009).

The undersigned finds that, regardless of the relief plaintiff seeks, Judge Dougherty and Ms. Buccina are entitled to judicial immunity because a Section 1983 action is not available against a judicial officer absent allegations of a violation of a prior o declaratory decree or the unavailability of declaratory relief. See, e.g., Bracci v. Becker, No. 1:11-CV-1473 (MAD/RFT), 2013 WL 123810, at *3 (N.D.N.Y. Jan. 9, 2013) aff'd 568 F. App’x. 13 (2d Cir. 2014) (summary order) (discussing that “prospective injunctive relief . . . is not available under § 1983 absent an allegation of a violation of a prior declaratory decree or that declaratory relief was unavailable.”) (citing Montero v. Travis, 171 F.3d 757, 761 (2d Cir. 1999)); Montes v. O'Shea, No. 1:21-CV-303 (DNH/ATB), WL 1759853, at *4 (N.D.N.Y. Apr. 6, 2021), report and recommendation adopted by, No. 1:21-CV-303, 2021 WL 1758858 (N.D.N.Y. May 4, 2021) (quoting Bobrowski v. Yonkers Courthouse, 777 F. Supp. 2d 692, 711 (S.D.N.Y. 2011) (additional citation omitted) (discussing judicial immunity applies in Section 1983 case “unless a declaratory decree was violated or declaratory relief was unavailable”)); see also 42 U.S.C. § 1983. Although plaintiff has attempted to bring an action pursuant to Section 1983 against two judicial officers, he has failed to allege any violation of a prior decree or the unavailability of declaratory relief. See generally Compl. Importantly, as discussed below, plaintiff's procedural due process claim fails because he has an available state remedy to seek declaratory and injunctive relief against defendants via N.Y. C.P.L.R. § 7803. Accordingly, any purported Section 1983 claims against Judge Dougherty and Ms. Buccina are not actionable.

ii. Prosecutorial Immunity Prosecutors are entitled to absolute immunity based on the scope of their function as an advocate in the judicial phase of criminal process. See Warney v. Monroe Cnty., 587 F.3d 113, 120-121 (2d Cir. 2009). The “ultimate question” of prosecutorial immunity is “whether the prosecutors have carried their burden of establishing that they were functioning as ‘advocates’ when they engaged in the challenged conduct.” Id. at 121 (quoting Doe v. Phillips, 81 F.3d 1204, 1209 (2d Cir. 1996); see also Parkinson v. Cozzolino, 238 F.3d 145, 150 (2d Cir. 2001) (discussing that “[t]he cases thus draw a line between the investigative and administrative functions m| Of prosecutors, which are not protected by absolute immunity, and the advocacy functions of prosecutors, which are so protected”). Although prosecutorial immunity bars Section 1983 claims for damages, an official-capacity claim for prospective injunctive relief may proceed to remedy an alleged “ongoing violation of federal constitutional law.” Avitabile v. Beach, 277 F. Supp. 3d 326, 332 (N.D.N.Y. 2017) (citations omitted). As plaintiff seeks only injunctive relief to remedy the allegedly- continuing constitutional due process and equal protection violations relating to the lack of response and decision on his motion to vacate, his claims against ADA Tyler are not barred by absolute immunity.

Although Section 1983 “allows plaintiffs with federal or constitutional claims to sue in federal court without first exhausting state judicial or administrative remedies” (Hellenic, 101 F.3d at 881 (citations omitted)), “[w]hen § 1983 claims allege procedural due process violations,” the Court may nonetheless evaluate whether state remedies exist “because that inquiry goes to whether a constitutional violation has occurred at all.” Chase Grp. All. LLC v. City of N.Y. Dept. of Fin., 620 F.3d 146, 153 (2d Cir. 2010) (quoting Rivera-Powell v. N.Y.C. Bd. of Elections, 470 F.3d 458, 468 n. 12 (2d Cir. 2006) (internal quotations omitted). Said differently, “[w]hen there is an adequate state postdeprivation procedure to remedy a random, arbitrary deprivation of property or liberty[,]’ “there is no constitutional violation (and no available § 1983 action).” Hellenic, 101 F.3d at 882 (collecting cases).

The Second Circuit has determined that Article 78 of the New York State Civil Practice Law and Rules is “a perfectly adequate postdeprivation remedy” in cases involving alleged procedural due process violations by state actors, including prolonged delays in governmental decision-making. Hellenic, 101 F.3d at 881 (collecting cases); see, e.g., C.C.S.com USA, Inc. v. Gerhauser, 518 F. App’x. ^[1], 3 (2d Cir. 2013) (summary order) (stating there was no denial of due process for Zoning board’s delay where, inter alia, plaintiff never pursued an Article 78 hearing to compel); DeMartino v. N.Y. State Dept. of Labor, 167 F. Supp. 3d 342, 367 (E.D.N.Y. 2016) (noting availability of Article 78 mandamus relief for delayed N.Y. Lab. L. § 220 hearing “counsel[s] against the finding of a due process violation”) (citations omitted). “[Article 78 is] an amalgam of the common law writs of certiorari to review, mandamus, and prohibition, [and] provides both a hearing and a means of redress for petitioners.” Hellenic, 101 F.3d at 881.

“Additionally, constitutional issues can be decided in Article 78 proceedings.” Id. (citing Christ the King Reg. High Sch. v. Culvert, 815 F.2d 219, 224-25 (2d Cir. 1987)).

Plaintiff is not challenging any established state procedure purportedly denying him procedural due process; rather, his allegations are directed at the acts of three individual government officials: Judge Dougherty, his law clerk, Ms. Buccina, and ADA o Tyler. See Compl. at 2 [| 4-6, 8. Plaintiff contends that “exhaustion of State remedies is not required because (1) the delay is attributable to the State’s Court System and (2) there is an absence of available State corrective process, and that process, even if available, would be ineffective in protecting plaintiff's rights.” Id. at 23, J 67.

As an initial matter, plaintiff seeks an order declaring, inter alia, that it is ADA Tyler's “responsibility, in the interest of justice and under the special responsibilities of prosecutors and other government lawyers,” to have filed either an answer to his “440.10 motion” or “an Article 78 mandamus to compel [Judge Dougherty] to render a decision.” Compl. at 20, 59. However, an Article 78 proceeding is an adequate postdeprivation remedy in New York State. See Hellenic, 101 F.3d at 882 (collecting cases). Plaintiff provides little to no explanation as to what, if anything, is preventing him from initiating an Article 78 proceeding. See Compl. at 20, 7 59. He references only the “numerous letters written to the defendants” in contending that the complained of delay “is attributable to the State’s Court System” and that, even if there were an available “State corrective process,” it would be “ineffective in protecting plaintiff's rights.” Id. at 23, 767. The letters referenced in plaintiff's complaint reiterate his position that the “440.10 motion” should be granted based on the People’s untimely response. See id. at 9-10, J] 28-31. These letters do not demonstrate that plaintiff is unable to commence an Article 78 proceeding in state court and plaintiff has not otherwise plead facts alleging that such proceeding would be inadequate. See generally id. Thus, an Article 78 proceeding would be the appropriate avenue for relief, which is adequately available to plaintiff under state law. See id. at 16-20, J] 49-58; N.Y. C.P.L.R. § 7803. As plaintiff has not attempted to pursue such remedy, his constitutional rights have not been violated.

Supp. 3d 238, 246 (N.D.N.Y. 2020) (citations omitted); see also Hu v. City of N.Y., 927 F.3d 81, 93 (2d Cir. 2019) (resolving uncertainty as to the “extremely high” degree of similarity required for comparators in “class-of-one” claims). To prove a “class-of-one” claim:

[A] plaintiff must establish that he and a comparator are “prima facie identical’ by showing that “(i) no rational person could regard the circumstances of the plaintiff to differ from those of a comparator to a degree that would justify the differential treatment on the basis of a legitimate government policy; and (ii) the similarity in circumstances and differences in treatment are sufficient to exclude the possibility that the defendant acted on the basis of mistake.”

Hu, 927 F.3d at 92 (quoting Neilson v. D’Angelis, 409 F.3d 100, 105 (2d Cir. 2005), overruled on other grounds by Appel v. Spiridon, 531 F.3d 138 (2d Cir. 2008)). Plaintiff has not alleged any intentional targeting by any defendant based on his membership in m|a specific class; rather, plaintiff is asserting a “class-of-one” claim by alleging that he was “arbitrarily and irrationally singled out and treated differently from others in similar situations and that there is no rational basis for the difference in treatment.” Compl. at 15, 7 44.

Plaintiffs purported equal protection claim is inadequate because he has failed identify any “prima facie identical” comparators. Hu, at 927 F.3d at 92 (citations omitted); see, e.g., Callwood v. City of Kingston, No. 1:15-CV-1298 (GLS/TWD), 2020 WL 2838602, at[*22] (N.D.N.Y. Jun. ^[1], 2020) (dismissing equal protection claim where the plaintiffs failed to identify any similarly situated individuals that were treated differently by the defendants); MacPherson v. Town of Southampton, 738 F. Supp. 2d 353, 371 (E.D.N.Y. 2010) (dismissing equal protection claim, “whether pled as a selective enforcement claim or a class-of-one claim,” where the complaint failed to “identify any comparators or similarly situated entities”). While plaintiff asserts, in a conclusory manner, that he has been treated differently “from others in similar situations,” he provides no indication as to whom. Compl. at 15, | 43. Considering that class-of-one plaintiffs must show “an extremely high degree of similarity” among their comparators, it is likely that plaintiff is unable to point to anyone who is “prima facie | identical.” Hu, 927 F.3d at 92 (citations and internal quotation marks omitted). Accordingly, it is recommended that plaintiff's Equal Protection claim be dismissed.

“instituting” or “maintain[ing]’ the criminal indictment against him, stating that it lacks “probable cause.” Compl. at 20-21, J] 60-62. Moreover, plaintiff requests this Court compel ADA Tyler to file an Article 78 and “dismiss the indictment” in the event Judge Dougherty does not comply with a declaratory judgment in his favor. Id. at 21, | 62. Plaintiff asks this Court to declare that his motion vacate his conviction must be granted o “upon considering the merits” as either conceded to by the People or “substantiated by unquestionable documentary proof.” Id. at 17-18, 9 52. Such relief would cause his conviction to be invalidated.

Based on the facts alleged in the complaint, plaintiff's conviction has not been overturned by a state appellate court or called into question by a federal habeas corpus proceeding; thus, plaintiff may not bring any claims that, if resolved in his favor, would m| Necessarily invalidate the conviction. To the extent plaintiff seeks declaratory and injunctive relief that would effectively invalidate his existing criminal conviction, such claims are barred by the Heck doctrine.

lll. Opportunity to Amend Generally, “[a] pro se complaint should not be dismissed 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.” Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (citation omitted). Plaintiff cannot cure the defects in his claims against defendants Judge Dougherty and Ms. Buccina because a Section 1983 action cannot be brought against them; thus, they are entitled to absolute immunity from suit. See Montero, 171 F.3d at 761. Accordingly, plaintiff's complaint should be dismissed with prejudice and without leave to amend as to those defendants.

As to ADA Tyler, plaintiff has failed to state a claim for procedural due process and equal protection violations, thus such claims should normally be dismissed without prejudice. See, e.g., Walker v. Martuscello, No. 9:18-CV-1189 (BKS/CFH), 2020 WL 432313, at *2 (N.D.N.Y. Jan. 13, 2020); Amato v. McGinty, No. 1:21-CV-00860 (GLS/TWD), 2022 WL 226798, at[*12] (N.D.N.Y. Jan. 26, 2022). However, as discussed above, whether framed as procedural due process or equal protections violations, plaintiff's requested relief is barred by the Heck doctrine. Nonetheless, while the undersigned finds that the claims against ADA Tyler should be dismissed without an opportunity to amend, because such claims are barred by the Heck doctrine, they are dismissed without prejudice. See Amaker v. Weiner, 179 F.3d 48, 52 (2d Cir. 1999) (citations omitted).

IV. Conclusion

WHEREFORE, for the reasons set forth herein, it is hereby

ORDERED, that plaintiff's in forma pauperis application (Dkt. No. 10) be GRANTED for the purpose of filing; and it is further RECOMMENDED, that plaintiff's complaint (Dkt. No. 1) be DISMISSED, WITH PREJUDICE, and without leave to amend, as to Stephen J. Dougherty and Bonnie A. Buccina; and it is further RECOMMENDED, that plaintiff's complaint (Dkt. No. 1) be DISMISSED, WITHOUT PREJUDICE, and without leave to amend, as to Kenneth H. Tyler;

IT IS SO ORDERED.

Pursuant to 28 U.S.C. § 636(b)(1), plaintiff has FOURTEEN (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the °) Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. See Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15, 16 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); FED. R. Civ. P. 72 & 6(a).®

Dated: May 3, 2022

Albany, New York

Christian F. Hummel U.S. Magistrate Judge