Thomas v. Fed. Gov't

1

GLENN MACPHERSON THOMAS, Plaintiff, v. FEDERAL GOVERNMENT; JUDGE EDGARDO RAMOS; MICHAEL H. SPORN, Defendants.

No. 23-CV-4666 (LTS)

United States District Court, S.D. New York

June 20, 2023

ORDER OF DISMISSAL

LAURA TAYLOR SWAIN, CHIEF UNITED STATES DISTRICT JUDGE:

Plaintiff who is currently incarcerated at MDC Brooklyn, brings this pro se action under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). He alleges that the district judge presiding over his criminal proceedings, United States v. Thomas, No 12-CR-0626-5 (S.D.N.Y.), delayed for years before resentencing him. Plaintiff seeks damages and release from incarceration. By order dated June 7, 2023, the Court granted Plaintiff's request to proceed in forma pauperis, that is, without prepayment of fees.^[1]

STANDARD OF REVIEW

The Prison Litigation Reform Act requires that federal courts screen complaints brought by prisoners who seek relief against a governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The Court must dismiss a prisoner's in forma pauperis complaint, or any portion of the complaint 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 if the court lacks subject matter jurisdiction. See Fed.R.Civ.P. 12(h)(3).

BACKGROUND

The following allegations are taken from Plaintiff Glenn Thomas's complaint. In August 2014, Plaintiff was “maliciously prosecuted” in criminal proceedings presided over by the Honorable Edgardo Ramos. Plaintiff made an unspecified motion, but Judge Ramos denied it on the ground that the “witness was credible.”^[2] (ECF 1 at 4.) Plaintiff contends that the denial of his motion violated his rights under the Eighth Amendment. During the criminal trial, Judge Ramos also (1) permitted use of a co-conspirator's out-of-court statement, allegedly in violation of Plaintiff's Sixth Amendment rights; and (2) denied Plaintiff the “right to face [his] accuser.” (Id.)

Plaintiff contends that Michael Sporn, one of his former defense attorneys, and Judge Ramos violated Plaintiff's rights under the Due Process Clause “by not sentencing [him] for 6 years because Judge Ramos knew [Plaintiff] would win [his] appeal.” (Id.) Plaintiff contends that he “proved actual innocence” but is “still incarcerated with insufficient means.” (Id. at 5.) He is “waiting on the Court of Appeals to vacate this miscarriage of justice.” (Id. at 5-6.) Plaintiff further alleges that:

[Judge Ramos] knew he was not supposed to sentence me to the 924(c), 924(d) [on] March 19, 2021 but he did anyway after I sent the Davis case to him. [On] May 10, 2023, I was in front of him because the Taylor case vacated those counts and Judge Ramos sentenced me with the same guidelines. The evidence is undisputed. Judge Ramos seen these facts and these facts has been submitted to Chief Judge Debra Livingston. I have the right to have my appeal answered in a timely fashion by law.

(Id. at 5.)^[3]

In an exhibit to the complaint, Plaintiff states that “on May 10, 2023, [Plaintiff] and his alleged co-conspirators were resentenced in front of Judge Ramos. Judge Ramos illegally sentenced [Plaintiff] using acquitted conduct and reduced defendant's sentence by three years to a total of 168 months.”^[4] (Id. at 8.)

Plaintiff brings this suit against attorney Michael Sporn; the Honorable Edgardo Ramos; and the “Federal Government.” Plaintiff seeks “15 million and immediate release or immediate release no supervised release.” (Id.) If further proceedings are required in the district court in his criminal case, Plaintiff also requests that a different judge preside over the matter.

Public records of Plaintiff's criminal proceedings reflect the following procedural history. On August 22, 2014, a jury found Plaintiff guilty of four of the six counts in the indictment: conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951 (Count 1); Hobbs Act robbery, in violation of 18 U.S.C. § 1951 (Count 2); murder through the use of a firearm relating to a crime of violence, in violation of 18 U.S.C. § 924(j) (Count 4); and brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 2 and 924(c)(1)(A) (Count 5).^[5]See United States v. Thomas, No. 1:12-CR-0626-5, 146 (S.D.N.Y. Aug. 22, 2014). On September 23, 2014, attorney Michael Sporn was appointed to represent Plaintiff in post-trial matters (ECF 250), and he filed numerous post-trial motions. Sentencing was stayed pending decisions in the Second Circuit on relevant cases, United States v. Hill, 14-3872 (2d Cir.), and United States v. Barrett, 14-2641 (2d Cir.).

On March 23, 2021, Judge Ramos denied motions brought by Plaintiff and his codefendants to set aside their convictions. United States v. Christian, 528 F.Supp.3d 174, 179 (S.D.N.Y. Mar. 23, 2021); Thomas, 12-CR-0636-5 (ECF 469). On March 25, 2021, more than six years after the jury verdict, judgment was entered sentencing Plaintiff to a cumulative total of 204 months' imprisonment.^[6] (ECF 471.) Plaintiff appealed both the judgment and the district court's March 23, 2021, order denying his motion to set aside the conviction. (ECF 472.)

Plaintiff also filed in the district court a pro se motion under 28 U.S.C. § 2255 to vacate his conviction (ECF 476), which the government opposed on May 4, 2021 (ECF 483). Before the district court took further action on Plaintiff's pro se Section 2255 motion, on November 15, 2022, the Court of Appeals for the Second Circuit issued an order on Plaintiff's direct appeal. (ECF 503.) The Second Circuit granted Plaintiff's appeal in part, vacated the conviction on counts four and five of the indictment,^[7]under 18 U.S.C. § 924(c) and 924(j), and remanded the case for resentencing. The Second Circuit further held that “[j]urisdiction over the appeal will be automatically restored to this Court and assigned to an appropriate merits panel, without the need for a new notice of appeal, upon notification to the Clerk of Court within 14 days of the district court's decision on resentencing.” (Id.)

On May 10, 2023, Plaintiff was resentenced. Although the minutes of the May 10, 2023 resentencing are not on the docket as of the date of this order, Plaintiff states that he was resentenced to 168 months' imprisonment. 23-CV-4666 (ECF 1 at 8.)

DISCUSSION

To state a claim for relief under Bivens, a plaintiff must allege facts that plausibly show that: (1) the challenged action was attributable to an officer acting under color of federal law, and (2) such conduct deprived him of a right, privilege, or immunity secured by the Constitution. See Thomas v. Ashcroft, 470 F.3d 491, 496 (2d Cir. 2006) (citing Bivens, 403 U.S. at 389). Plaintiff brings claims for damages, under Bivens, against Judge Ramos, defense counsel Sporn, and the “Federal Government.” Plaintiff also seeks “immediate release,” and the Court addresses these claims in turn.

A. Claims against District Judge Ramos

Judges are absolutely immune from suit for damages for any actions taken within the scope of their judicial responsibilities. Mireles v. Waco, 502 U.S. 9, 11 (1991). Generally, “acts arising out of, or related to, individual cases before the judge are considered judicial in nature.” Bliven v. Hunt, 579 F.3d 204, 210 (2d Cir. 2009). “Even allegations of bad faith or malice cannot overcome judicial immunity.” Id. (citations omitted). This is because, “[w]ithout insulation from liability, judges would be subject to harassment and intimidation ....” Young v. Selsky, 41 F.3d 47, 51 (2d Cir. 1994). Because Plaintiff sues Judge Ramos for damages for “acts arising out of, or related to, individual cases before him,” Judge Ramos is immune from suit for such claims. Bliven, 579 F.3d at 210. The Court therefore dismisses Plaintiff's claims against Judge Ramos because they seek monetary relief against a defendant who is immune from such relief, 28 U.S.C. § 1915(e)(2)(B)(iii).^[8]

B. Claims against defense counsel

Plaintiff asserts a claim against his former defense counsel for damages for allegedly violating his constitutional rights. Whether Plaintiff's damages claim against Defendant Sporn is asserted under Bivens or 42 U.S.C. § 1983, in order to seek relief for violations of his constitutional rights, Plaintiff must allege facts showing that Defendant Sporn is a government actor. See, e.g., Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir. 2002) (“[T]he United States Constitution regulates only the Government, not private parties.”). Attorneys appointed to act as defense counsel in criminal proceedings are not, on the basis of that function, deemed government actors. See Polk Cty. v. Dodson, 454 U.S. 312, 324-25 (1981) (public defenders do not act “under color of state law” in performing their functions as counsel to indigent defendants); Jaber v. Hanley, No. 20-CV-7347 (LLS) (S.D.N.Y. Jan. 5, 2021) (Assistant Federal Defenders “Schacht and Shroff are private parties who cannot, for purposes of Bivens claims for damages, be deemed government actors when acting as his defense counsel.”); Olmeda v. Babbits, No. 07-CV-2140 (NRB), 2008 WL 282122, at *7 (S.D.N.Y. Jan. 28, 2008) (holding that federal defender cannot be sued under Section 1983 or Bivens). Plaintiff thus cannot state a claim against Defendant Sporn for damages, under Bivens or Section 1983, because he is not a government actor.^[9]

C. Claims against “Federal Government”

Plaintiff brings a claim against the “Federal Government,” invoking Bivens. The purpose of an...