UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK MITCHELL BRATHWAITE, Plaintiff, 23-CV-1362 (LTS) -against- ORDER OF DISMISSAL DAVID BLUM (PUBLIC DEFENDERS), Defendant. LAURA TAYLOR SWAIN, Chief United States District Judge: Plaintiff, who is appearing pro se, filed this action invoking the Court’s federal question jurisdiction. By order dated February 23, 2023, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees. For the reasons set forth below, the Court dismisses the complaint. STANDARD OF REVIEW The Court must dismiss an IFP complaint, or any portion of the complaint, 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 of the claims raised. 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). But the “special solicitude” in pro se cases,

(citation omitted), has its limits – to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief. Rule 8 requires a complaint to include enough facts to state a claim for relief “that is

plausible on its face.” Bell Atl. Corp. v. Twombly,

(2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal,

(2009). But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of action,” which are essentially just legal conclusions. Twombly,

. 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.

BACKGROUND Plaintiff alleges that the events giving rise to this complaint occurred in Bronx County, New York, on multiple dates between July 2, 2019, and November 16, 2020.1 Plaintiff sues

“David Blum (Public Defenders),” who “works at 10 AM DMC161 BX.” (ECF No. 2 at 1.) Plaintiff cites a variety of federal statutes, both civil and criminal, without explaining their relevance to his claims. (Id. at 5) Plaintiff lists injuries, but does not state when the injuries

1 On the same day that Plaintiff filed this action, he filed three other actions regarding events that allegedly occurred in Bronx County, New York, on many dates from July 2019, through February 2023. See Brathwaite v. Zimmerman, ECF 1:23-CV-1365, 5 (S.D.N.Y. Aug. 15, 2023) (dismissing action for failure to state a claim and declining to exercise supplemental jurisdiction of Plaintiff’s state law claims) Brathwaite v. Leticia, ECF 1:23-CV-1364, 5 (S.D.N.Y. June 26, 2023) (dismissing action for failure to state a claim and on immunity grounds and declining to exercise supplemental jurisdiction of Plaintiff’s state law claims); Brathwaite v. Guerri, ECF 1:23-CV-1363, 5 (S.D.N.Y. July 18, 2023) (dismissing action for failure to state a claim and declining to exercise supplemental jurisdiction of Plaintiff’s state law claims). occurred, how he sustained the injuries, or who caused them. He brings this complaint seeking relief for “pain & suffering, hospital cost, travel cost, clothing cost, lawyer fees.” (Id. at 6.) DISCUSSION The Court construes the complaint as asserting a constitutional claim under

. To state a claim under Section 1983, a plaintiff must allege both that: (1) a right secured

by the Constitution or laws of the United States was violated, and (2) the right was violated by a person acting under the color of state law, or a “state actor.” West v. Atkins,

(1988). A. Claims Against Public Defender Daniel Blum A claim for relief under Section 1983 must allege facts showing that each defendant acted under the color of a state “statute, ordinance, regulation, custom or usage.”

. Private parties therefore generally are not liable under the statute. Sykes v. Bank of Am.,

(2d Cir. 2013) (citing Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n,

(2001)); see also Ciambriello v. Cnty. of Nassau,

(2d Cir. 2002) (“[T]he United States Constitution regulates only the Government, not private parties.”). Absent

special circumstances suggesting concerted action between an attorney and a state representative, see Nicholas v. Goord,

, 656 n.7 (2d Cir. 2005) (citing Adickes v. S.H. Kress & Co.,

(1970)), the representation of a defendant by private counsel in state criminal proceedings does not constitute the degree of state involvement or interference necessary to establish a claim under section 1983, regardless of whether that attorney is privately retained, court-appointed, or employed as a public defender. See Bourdon v. Loughren,

(2d Cir. 2004) (citing Polk Cnty. v. Dodson,

(1981)); see also Schnabel v. Abramson,

(2d Cir. 2000) (holding that legal aid organization ordinarily is not a state actor for purposes of § 1983). As Defendant Daniel Blum is a private party who is not alleged to work for any state or other government body, Plaintiff has not stated a claim against this Defendant under Section 1983. The Court therefore dismisses Plaintiff’s claims under Section 1983 against Public Defender Daniel Blum for failure to state a claim on which relief may be granted. See

(e)(2)(B)(ii).

B. Private Prosecution Based upon the statutes cited by Plaintiff, see ECF No. 2 at 5, he apparently seeks to bring criminal charges against Defendant Blum. Plaintiff cannot initiate the arrest and prosecution of an individual in this Court, however, because “the decision to prosecute is solely within the discretion of the prosecutor.” Leeke v. Timmerman,

(1981). Nor can Plaintiff direct prosecuting attorneys to initiate a criminal proceeding against Defendant, because prosecutors possess discretionary authority to bring criminal actions, and they are “immune from control or interference by citizen or court.” Conn. Action Now, Inc. v. Roberts Plating Co.,

(2d Cir. 1972). Plaintiff’s attempt to bring federal criminal charges against Defendant must therefore be dismissed because he fails to state a claim on which relief may be granted. See

(e)(2)(B)(ii).

C. Leave to amend denied 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,

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

(2d Cir. 1988). Because the defects in Plaintiff’s complaint cannot be cured with an amendment, the Court declines to grant Plaintiff leave to amend his complaint. CONCLUSION Plaintiff’s complaint, filed IFP under

(a)(1), is dismissed pursuant to

(e)(2)(B)(ii). The Court certifies under

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

(1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue).

The Clerk of Court is directed to enter judgment in this case. SO ORDERED. Dated: November 27, 2023 New York, New York

/s/ Laura Taylor Swain LAURA TAYLOR SWAIN Chief United States District Judge