Lynch v. Bharara

JOHNNY LYNCH, Plaintiff, v. P. BHARARA, et al., Defendants.

19-CV-3572 (CM)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

August 21, 2019

ORDER TO AMEND

COLLEEN McMAHON, Chief United States District Judge:

Plaintiff, currently incarcerated in the Green Haven Correctional Facility, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants violated his rights under federal law. By order dated June 20, 2019, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis ("IFP").¹ For the reasons set forth below, the Court grants Plaintiff leave to file an amended complaint within sixty days of the date of this order.

STANDARD OF REVIEW

The Court must dismiss a complaint, or portion thereof, that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the "strongest [claims] that they suggest,"Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original).

Rule 8 of the Federal Rules of Civil Procedure requires a complaint to make a short and plain statement showing that the pleader is entitled to relief. A complaint states a claim for relief if the claim is plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To review a complaint for plausibility, the Court accepts all well-pleaded factual allegations as true and draws all reasonable inferences in the pleader's favor. Iqbal, 556 U.S. at 678-79 (citing Twombly, 550 U.S. at 555). But the Court need not accept "[t]hreadbare recitals of the elements of a cause of action," which are essentially legal conclusions. Id. at 678 (citing Twombly, 550 U.S. at 555). After separating legal conclusions from well-pleaded factual allegations, the court must determine whether those facts make it plausible - not merely possible - that the pleader is entitled to relief. Id.

BACKGROUND

Plaintiff brings this action under 42 U.S.C. § 1983, ultimately seeking to challenge his transfer from federal to state custody. Most of his complaint, however, describes his attempts to obtain information about his transfer through filing a number of Freedom of Information Act ("FOIA") requests. He sues former U.S. Attorney Preet Bharara, Assistant U.S. Attorney Nola Heller, U.S. Marshal J. Guccione, the U.S. District Court for the Southern District of New York, the State of New York, former Bronx District Attorney Robert Johnson, the U.S. Bureau of Prisons, D. Schriro, Commissioner of Department of Correction, R.N.D.C. Warden E. Bailey, A.M.K.C. Warden R. Cripps, the G.E.O. Detention Facility, and Anthony Ricco. The following allegations are taken from Plaintiff's complaint.

A. Plaintiff's transfer between state and federal custody

On November 13, 2009, Plaintiff was arrested and committed to the custody of Bronx County for prosecution by the Bronx County District Attorney's Office ("Bronx DA") in the New York Supreme Court, Bronx County. On June 14, 2010, Plaintiff was "confiscated" by federal agents and taken to the Manhattan headquarters of the Federal Bureau of Investigation ("FBI"), where he was questioned by Assistant United States Attorney Nola Heller ("AUSA Heller"). Plaintiff's attorney, Defendant Anthony Ricco, arrived shortly after the questioning began. Plaintiff alleges "by information and belief" that the Bronx DA "was not notified or aware of [his] confiscation and interrogation at that time." (Compl. at 3.) Plaintiff was returned to Rikers Island on the same day. Plaintiff alleges that, on November 9, 2010, he was again "confiscated" by federal agents and taken to FBI headquarters, where he was questioned by AUSA Heller. He was returned to Rikers Island on the same day.

On March 17, 2011, Plaintiff was convicted in the Bronx County Supreme Court on the charge for which he had been indicted. He alleges that, "[d]uring the March 17, 2011 conviction," the court informed him that he would be transferred to federal custody "pursuant to said federal charges" and that the state court will direct that its sentence run concurrently to any federal sentence. (Id. at 4.) Plaintiff alleges that he was never informed by the court, his attorney Ricco, or the Bronx DA that he would have to testify against anyone or that the concurrent sentences "were dependent upon [his] participation or self-incrimination." (Id.) Plaintiff was placed in federal custody and transferred to the G.E.O. Facility, a private detention facility contracted by the FBI.

Around June 1, 2011, Plaintiff discharged Ricco as his attorney for allegedly lying to him and deceiving him about the ramifications of his plea deal. Plaintiff alleges that Ricco informed the Bronx County Supreme Court and AUSA Heller that Plaintiff wished to breach the state pleaagreement and return to state custody for sentencing. Plaintiff maintains that he did not want to return to state custody, but rather wanted to remain in federal custody and proceed on the federal charges.

On July 1, 2011, Plaintiff was transferred back to Rikers Island, and on July 15, 2011, the Bronx DA informed the Bronx County Supreme Court that it considered Plaintiff in breach of the plea agreement and recommended a sentence of 25 years to life in prison. On September 12, 2012, the Bronx County Supreme Court sentenced Plaintiff to a term of incarceration of 25 years to life.

B. Plaintiff's FOIA requests

Plaintiff's complaint describes FOIA requests that he submitted to various federal agencies between May 2016 and July 2018, and in which he sought documents containing information about his transfer. Plaintiff's complaint is unclear as to how many separate FOIA requests he sent and how each request was ultimately resolved. It appears Plaintiff sent FOIA requests to the U.S. Marshals Service, Federal Bureau of Prisons ("BOP"), the Federal Bureau of Investigation ("FBI"), the U.S. Attorney's Office for the Southern District of New York ("U.S. Attorney's Office"), and the U.S. District Court for the Southern District of New York ("SDNY").

The Marshals Service ultimately produced nine pages of documents in response to Plaintiff's request. (Id. at 8-9, 47.) The BOP informed Plaintiff that the records he requested were not in its possession, id. at 8, 45, and the FBI indicated that it was "unable to identify mail file records" in response to his request and asked Plaintiff for additional information, id. at 7, 43. The U.S. Attorney's Office forwarded his request to the Marshals Service. See id. at 9-10, 60. Plaintiff appealed the U.S. Attorney's Office's decision to forward his request to the MarshalsService and the DOJ's Office of Information Policy affirmed the U.S. Attorney's Office's decision. (Id. at 62.)

Plaintiff also describes receiving a response from the DOJ, indicating that his request was for records that were maintained by "another component of DOJ" and determining his request to be "misdirected." (Id. at 8.) It is unclear whether Plaintiff sent a separate FOIA request to DOJ or if DOJ was responding on behalf of another agency under its jurisdiction.

C. Legal claims and relief sought

Plaintiff asserts a wide array of legal claims, including that Defendants violated his rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments when they transferred him "from state to federal custody and from federal to state custody devoid," and conspired to violate his rights under the Fifth, Sixth, and Fourteenth Amendments "in their collective efforts to illegally transfer Plaintiff and holding him in several sovereign prosecutorial jurisdictions under the false pretense of prosecuting him in both." (Id. at 23.) Plaintiff also asserts claims for intentional infliction of emotional distress, denial of equal protection, gross negligence, negligent infliction of physical, emotional, and mental distress, and loss of consortium. (Id. at 23-24.) He seeks money damages and injunctive relief, including an order prohibiting Defendants "from utilizing, in any way, any information alleged to have been collected or provided by Plaintiff throughout the course of his unconstitutional transfers between sovereigns." (Id. at 25.)

DISCUSSION

A. Claims against U.S. Attorney Bharara, AUSA Heller, and Bronx District Attorney Johnson

Prosecutors are immune from civil suits for damages for acts committed within the scope of their official duties where the challenged activities are not investigative in nature but, rather, are "intimately associated with the judicial phase of the criminal process." Simon v. City of NewYork, 727 F.3d 167, 171 (2d Cir. 2013) (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)); see also Buckley v. Fitzsimmons, 509 U.S. 259 (1993) (holding that absolute immunity is analyzed under "functional approach" that "looks to the nature of the function performed, not the identity of the actor who performed it"). In addition, prosecutors are absolutely immune from suit for acts that may be administrative obligations but are "directly connected with the conduct of a trial." Van de Kamp v. Goldstein, 555 U.S. 335, 344 (2009).

Any claims that Plaintiff makes claims against U.S. Attorney Bharara, AUSA Heller, and Bronx District Attorney Johnson² are based on actions within the scope of their official duties and associated with the conduct of a trial. Therefore, these claims are dismissed because they seek monetary relief against a defendant who is immune from suit and as...