20-947-cv Whitnum v. Office of the Chief State’s Attorney

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 3 City of New York, on the 19th day of February, two thousand twenty-one. 4 5 PRESENT: RAYMOND J. LOHIER, JR., 6 STEVEN J. MENASHI, 7 Circuit Judges, 8 ERIC KOMITEE,* 9 Judge. 10 _________________________________________ 11 12 L. LEE WHITNUM, 13 14 Plaintiff-Appellant, 15 16 v. 20-947-cv 17 18 OFFICE OF THE CHIEF STATE’S 19 ATTORNEY, KEVIN KANE, JOHN

* Judge Eric Komitee, of the United States District Court for the Eastern District of New York, sitting by designation. 1 WHALEN, JANE DOES 1-25, JOHN DOES 2 1-25, ABC INSURANCE COMPANIES 1- 3 10, 4 5 Defendants-Appellees. ** 6 _________________________________________ 7 8 9 FOR PLAINTIFF-APPELLANT: L. Lee Whitnum, pro se, 10 Greenwich, CT. 11 12 FOR DEFENDANTS-APPELLEES: No appearance. 13 14 Appeal from a judgment of the United States District Court for the District

15 of Connecticut (Janet C. Hall, Judge).

16 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

17 AND DECREED that the judgment is AFFIRMED.

18 Plaintiff-Appellant L. Lee Whitnum, proceeding pro se, appeals from the

19 February 20, 2020 judgment of the District Court (Hall, J.) adopting the

20 recommended ruling of the Magistrate Judge (Merriam, M.J.) and dismissing

21 Whitnum’s amended complaint for failure to state a claim. We assume the

22 parties’ familiarity with the underlying facts and prior record of proceedings, to

** The Clerk of Court is directed to amend the official caption to conform with the above caption. 2 1 which we refer only as necessary to explain our decision to affirm.

2 We review de novo a district court’s sua sponte dismissal of a complaint

3 under

(e)(2). Hardaway v. Hartford Pub. Works Dep’t,

486, 489 (2d Cir. 2018). “To avoid dismissal, a complaint must plead ‘enough

5 facts to state a claim to relief that is plausible on its face.’”

(quoting Bell Atl.

6 Corp. v. Twombly,

(2007)). We afford a pro se litigant “special

7 solicitude” by interpreting a complaint filed pro se “to raise the strongest claims

8 that it suggests.” Hill v. Curcione,

(2d Cir. 2011) (quotation

9 marks omitted).

10 As an initial matter, we conclude that the District Court properly analyzed

11 Whitnum’s complaint under § 1915(e)(2). The statute requires that a district

12 court dismiss a complaint filed in forma pauperis if it determines that the action

13 “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be

14 granted; or (iii) seeks monetary relief against a defendant who is immune from

15 such relief.”

(e)(2)(B). Despite Whitnum’s argument to the

16 contrary, § 1915(e)(2) is not limited to complaints filed by prisoners. See, e.g.,

17 Cieszkowska v. Gray Line N.Y.,

(2d Cir. 2002) (affirming the

3 1 dismissal of a pro se non-prisoner complaint under § 1915(e)).

2 As for the merits, the District Court properly dismissed Whitnum’s

3 amended complaint. Whitnum chiefly challenges the dismissal of her malicious

4 prosecution claim. That claim was properly dismissed because Whitnum failed

5 to plead that the charges against her terminated in her favor. See Spak v.

F.3d 458, 461 n.1 (2d Cir. 2017). In urging a contrary conclusion,

7 Whitnum argues that because the stalking charge against her was dropped, she

8 has adequately alleged the requisite favorable termination to sustain her

9 malicious prosecution claim. We disagree. “When a person has been arrested

10 and indicted, absent an affirmative indication that the person is innocent of the

11 offense charged, the government’s failure to proceed does not necessarily imply

12 a lack of reasonable grounds for the prosecution.” Lanning v. City of Glens

13 Falls,

(2d Cir. 2018). In her complaint, Whitnum alleges that

14 certain charges were dismissed, but she does not suggest that any charge was

15 dismissed because she was innocent of the charge. And even if we were to look

16 beyond the complaint and consider the transcript of the proceeding in which the

17 prosecutor noted that he planned to dismiss the stalking charge, the prosecutor

4 1 offered no explanation for the dismissal. Accordingly, because Whitnum “has

2 not plausibly alleged that any of the criminal proceedings against [her] were

3 terminated in a manner indicating [her] innocence,” she has failed to plead a

4 valid malicious prosecution claim.

.

5 We also reject Whitnum’s claims of judicial bias, which are either

6 unsupported or based on her disagreement with the rulings of the State Judge.

7 See Liteky v. United States,

(1994) (“[J]udicial rulings alone

8 almost never constitute a valid basis for a bias or partiality motion.”).

9 We have considered all of Whitnum’s remaining arguments and conclude

10 that they are without merit. For the foregoing reasons, we AFFIRM the

11 judgment of the District Court.

12 13 FOR THE COURT: 14 Catherine O’Hagan Wolfe, Clerk of Court

5