UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK MAYRA LARIOS, Plaintiff, -against- 1:19-CV-6846 (CM) STATE OF NEW YORK; JUDGE PHYLLIS ORDER OF DISMISSAL CHU; JUDGE ANN D. THOMPSON, Defendants. COLLEEN McMAHON, Chief United States District Judge: Plaintiff, appearing pro se, brings this action under the Court’s federal question jurisdiction, alleging that her constitutional rights are being violated during her ongoing state court criminal proceedings. By order dated July 30, 2019, the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis. For the reasons set forth below, the Court dismisses the complaint, but grants Plaintiff leave to file an amended complaint. STANDARD OF REVIEW The Court must dismiss an in forma pauperis complaint, or portion thereof, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary

relief from a defendant who is immune from such relief.

(e)(2)(B); see Livingston v. Adirondack Beverage Co.,

(2d Cir. 1998). 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,

(2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons,

(2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). BACKGROUND Plaintiff filed this 57-page complaint against the State of New York and two New York County Criminal Court Judges, Phyllis Chu and Ann D. Thompson. Plaintiff alleges that the judges are violating her right to represent herself, and are not presiding over the proceedings fairly. (ECF No. 1 ¶ III.) Plaintiff provides the following facts.

On April 2, 2019, Plaintiff, who is sixty years old, “was a party to a domestic violence cross complaint” between herself and Luis Alfredo Jacome, her 26-year-old, autistic nephew. (Id. at 9.) Jacome “savagely beat[]” Plaintiff, and falsely accused her of cutting his hand with a knife. Police officers from the 10th Precinct arrested both Jacome and Plaintiff, and charged Plaintiff with assault. The District Attorney’s Office violated Plaintiff’s “victim’s rights” by not informing her that Jacome’s case had been closed and sealed, and that an order of protection that she had against Jacome had been revoked. (ECF No. 6 at 3.) On Plaintiff’s cell phone is video of Jacome’s assault against her. But the police seized the phone during her arrest and have refused to return it, and Plaintiff’s criminal defense attorney has made no effort to retrieve it. Because Plaintiff is represented by counsel, the police are

refusing to provide her with audio recordings of past 911 calls showing that Jacome has a history of falsely accusing Plaintiff of violence, and of acting violently against Plaintiff and other family members. Also, documents submitted in Plaintiff’s criminal proceedings have been tampered with, contain false information, and are “highly questionable.” (ECF No. 1 at 22-23.) For example, Police Officer Joseph Spector arrested Plaintiff, but a “written instrument” in her case states that Police Officer Benicie Alezy was the arresting officer. (Id.) Other documents show that the state court judges are hostile and biased against her. After Plaintiff filed this complaint, she filed a request for a proposed order to show cause, asking this Court to stay the criminal proceedings “until the SDNY reviews the case,” and to direct the New York County District Attorney’s Office to “preserve the video from the body camera police officers wore at the time of my family’s cross complaint arrests on April 2, 2019.” (ECF Nos. 5, 6.) DISCUSSION A. Request for Injunctive Relief In Younger v. Harris,

(1971), the United States Supreme Court held that “a

federal court may not enjoin a pending state criminal proceeding in the absence of special circumstances suggesting bad faith, harassment or irreparable injury that is both serious and immediate.” Gibson v. Berryhill,

(1973). Younger abstention is appropriate in only three categories of state court proceedings: (1) state criminal prosecutions; (2) civil enforcement proceedings that are “akin to criminal prosecutions”; and (3) civil proceedings “that implicate a State’s interest in enforcing the orders and judgments of its courts.” Sprint Commc’n, Inc. v. Jacobs,

(2013). “The Younger doctrine is as applicable to suits for declaratory relief as it is to those for injunctive relief . . . .” Kirschner v. Klemons,

(2d Cir. 2000). Here, Plaintiff seeks to have this Court intervene in her ongoing state-court criminal

proceedings and declare that the actions of the state court have violated her constitutional rights. But she does not assert any facts suggesting bad faith, harassment, or irreparable injury that is both serious and immediate. Furthermore, the State of New York has an important interest in enforcing its criminal laws, and Plaintiff fails to show that she does not have an adequate opportunity to raise her constitutional challenges within her state-court criminal proceedings. Accordingly, under the Younger abstention doctrine, this Court abstains from issuing Plaintiff the injunctive and declaratory relief she seeks – a stay, and a declaration that the state court has violated her constitutional right to represent herself in the proceedings, and that the proceedings are unfair. B. Judicial Immunity Judges are absolutely immune from suit for damages for any actions taken within the scope of their judicial responsibilities. Mireles v. Waco,

(1991). Generally, “acts

arising out of, or related to, individual cases before the judge are considered judicial in nature.” Bliven v. Hunt,

(2d Cir. 2009). “Even allegations of bad faith or malice cannot overcome judicial immunity.”

(citations omitted). This is because “[w]ithout insulation from liability, judges would be subject to harassment and intimidation . . . .” Young v. Selsky,

(2d Cir. 1994). In addition, as amended in 1996, § 1983 provides that “in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.”

. Judicial immunity does not apply when the judge takes action “outside” his judicial capacity, or when the judge takes action that, although judicial in nature, is taken “in absence of

jurisdiction.” Mireles,

; see also Bliven,

(describing actions that are judicial in nature). But “the scope of [a] judge’s jurisdiction must be construed broadly where the issue is the immunity of the judge.” Stump v. Sparkman,

(1978). The judges who are presiding over Plaintiff’s criminal proceedings are immune from suit for their actions falling within their jurisdiction, including their decisions regarding Plaintiff’s right to represent herself and the reliability of evidence being presented in the case. Accordingly, the Court dismisses Plaintiff’s § 1983 claims against the judges under the doctrine of judicial immunity. See § 1915(e)(2)(B)(i), (iii). C. State of New York “[A]s a general rule, state governments may not be sued in federal court unless they have waived their Eleventh Amendment immunity, or unless Congress has abrogated the states’ Eleventh Amendment immunity . . . .” Gollomp v. Spitzer,

(2d Cir. 2009). “The immunity recognized by the Eleventh Amendment extends beyond the states themselves to

state agents and state instrumentalities that are, effectively, arms of a state.”

New York has not waived its Eleventh Amendment immunity to suit in federal court, and Congress did not abrogate the states’ immunity in enacting

. See Trotman v. Palisades Interstate Park Comm’n,

, 40 (2d Cir. 1977). Plaintiff’s § 1983 claims against the State of New York are therefore barred by the Eleventh Amendment and are dismissed. D. Leave to Amend District courts generally grant a pro se plaintiff an opportunity to amend a complaint to cure its defects, but leave to amend is not required where it would be futile. See Hill v. Curcione,

, 123–24 (2d Cir. 2011); Salahuddin v. Cuomo,

(2d Cir. 1988). Plaintiff cannot state a claim against the named Defendants because they are immune from suit,

and this Court cannot intervene in her ongoing criminal proceedings. But in an abundance of caution, the Court grants Plaintiff leave to file an amended complaint. If Plaintiff needs assistance with this matter, she may contact the NYLAG Legal Clinic for Pro Se Litigants in the Southern District of New York, which is a free legal clinic staffed by attorneys and paralegals to assist those who are representing themselves in civil lawsuits in the Southern District of New York. A copy of the flyer with details of the clinic is attached to this order. CONCLUSION The Clerk of Court is directed to assign this matter to my docket, mail a copy of this order to Plaintiff, noting service on the docket. The complaint is dismissed for failure to state a claim on which relief may be granted, and on immunity grounds.

(e)(2)(B) □□□□ (iii). The order to show cause is denied. Plaintiff is granted leave to file an amended complaint that complies with the standards set forth above. Plaintiff must submit the amended complaint to this Court’s Pro Se Intake Unit within thirty days of the date of this order, caption the document as an “Amended Complaint,” and label the document with docket number 19-CV-6846 (CM). An Amended Complaint form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and she cannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief may be granted The Clerk of Court is directed to docket this as a “written opinion” within the meaning of Section 205(a)(5) of the E-Government Act of 2002. The Court certifies under

(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States,

(1962). SO ORDERED. Dated: August 7, 2019 , New York, New York hi. i Hk COLLEEN McMAHON Chief United States District Judge

Since 1990, NYLAG has provided free civil legal services to New Yorkers who cannot afford private attorneys. NEW YORK LEGAL ASSISTANCE GROUP

Free Legal Assistance for Self-Represented Civil Litigants in Federal District Court in Manhattan and White Plains

The NYLAG Legal Clinic for Pro Se Litigants in the Southern District of New York is a free legal clinic staffed by attorneys and paralegals to assist those who Thurgood Marshall are representing themselves or planning to United States Courthouse represent themselves in civil lawsuits in the Room LL22 Southern District of New York. The clinic, 40 Centre Street which is not part of or run by the court, New York, NY 10007 assists litigants with federal civil cases (212) 659 6190 including cases involving civil rights, employment discrimination, labor law, Open weekdays social security benefits, foreclosure and tax. lO a.m.- 4 p.m. The clinic cannot assist individuals while Closed on federal and court holidays they are incarcerated, but can provide assistance to litigants once they are released from custody. To make an appointment for a The Hon. Charles L. Brieant Jr. consultation, call (212) 659-6190 or come Federal Building and Courthouse by either clinic during office hours. Please 300 Quarropas St note that a government-issued photo ID is White Plains, NY 10601 required to enter either building. (212) 659 6190 The clinic offers in-person Open Wednesday appointments only. The clinic does [2 p.m.- 4 p.m. not offer assistance over the phone Closed on federal and court holidays or by email.

Disclaimer: The information contained herein is for informational purposes only and is not legal nwiase. i

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

_____CV_______________ (Include case number if one has been Write the full name of each plaintiff. assigned)

AMENDED -against-

COMPLAINT

Do you want a jury trial? ☐ Yes ☐ No

Write the full name of each defendant. If you need more space, please write “see attached” in the space above and attach an additional sheet of paper with the full list of names. The names listed above must be identical to those contained in Section II.

NOTICE The public can access electronic court files. For privacy and security reasons, papers filed with the court should therefore not contain: an individual’s full social security number or full birth date; the full name of a person known to be a minor; or a complete financial account number. A filing may include only: the last four digits of a social security number; the year of an individual’s birth; a minor’s initials; and the last four digits of a financial account number. See Federal Rule of Civil Procedure 5.2. I. BASIS FOR JURISDICTION Federal courts are courts of limited jurisdiction (limited power). Generally, only two types of cases can be heard in federal court: cases involving a federal question and cases involving diversity of citizenship of the parties. Under

, a case arising under the United States Constitution or federal laws or treaties is a federal question case. Under

, a case in which a citizen of one State sues a citizen of another State or nation, and the amount in controversy is more than $75,000, is a diversity case. In a diversity case, no defendant may be a citizen of the same State as any plaintiff. What is the basis for federal-court jurisdiction in your case? ☐ Federal Question ☐ Diversity of Citizenship A. If you checked Federal Question Which of your federal constitutional or federal statutory rights have been violated?

B. If you checked Diversity of Citizenship 1. Citizenship of the parties Of what State is each party a citizen? The plaintiff , , is a citizen of the State of (Plaintiff’s name)

(State in which the person resides and intends to remain.) or, if not lawfully admitted for permanent residence in the United States, a citizen or subject of the foreign state of . If more than one plaintiff is named in the complaint, attach additional pages providing information for each additional plaintiff. If the defendant is an individual:

The defendant, , is a citizen of the State of (Defendant’s name)

or, if not lawfully admitted for permanent residence in the United States, a citizen or subject of the foreign state of . If the defendant is a corporation: The defendant, , is incorporated under the laws of the State of and has its principal place of business in the State of or is incorporated under the laws of (foreign state) and has its principal place of business in . If more than one defendant is named in the complaint, attach additional pages providing information for each additional defendant.

II. PARTIES A. Plaintiff Information Provide the following information for each plaintiff named in the complaint. Attach additional pages if needed.

First Name Middle Initial Last Name

Street Address

County, City State Zip Code

Telephone Number Email Address (if available) B. Defendant Information To the best of your ability, provide addresses where each defendant may be served. If the correct information is not provided, it could delay or prevent service of the complaint on the defendant. Make sure that the defendants listed below are the same as those listed in the caption. Attach additional pages if needed. Defendant 1: First Name Last Name

Current Job Title (or other identifying information)

Current Work Address (or other address where defendant may be served)

County, City State Zip Code Defendant 2: First Name Last Name

Current Job Title (or other identifying information)

Current Work Address (or other address where defendant may be served)

County, City State Zip Code Defendant 3: First Name Last Name

Current Job Title (or other identifying information)

Current Work Address (or other address where defendant may be served)

County, City State Zip Code Defendant 4: First Name Last Name

Current Job Title (or other identifying information)

Current Work Address (or other address where defendant may be served)

County, City State Zip Code III. STATEMENT OF CLAIM Place(s) of occurrence:

Date(s) of occurrence: FACTS: State here briefly the FACTS that support your case. Describe what happened, how you were harmed, and what each defendant personally did or failed to do that harmed you. Attach additional pages if needed. INJURIES: If you were injured as a result of these actions, describe your injuries and what medical treatment, if any, you required and received.

IV. RELIEF State briefly what money damages or other relief you want the court to order. V. PLAINTIFF’S CERTIFICATION AND WARNINGS By signing below, I certify to the best of my knowledge, information, and belief that: (1) the complaint is not being presented for an improper purpose (such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are supported by existing law or by a nonfrivolous argument to change existing law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the complaint otherwise complies with the requirements of Federal Rule of Civil Procedure 11. I agree to notify the Clerk's Office in writing of any changes to my mailing address. I understand that my failure to keep a current address on file with the Clerk's Office may result in the dismissal of my case. Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to proceed without prepayment of fees, each plaintiff must also submit an IFP application.

Dated Plaintiff’s Signature

First Name Middle Initial Last Name

Street Address

County, City State Zip Code

Telephone Number Email Address (if available)

I have read the Pro Se (Nonprisoner) Consent to Receive Documents Electronically: ☐ Yes ☐ No If you do consent to receive documents electronically, submit the completed form with your complaint. If you do not consent, please do not attach the form.