Opinion
20-CV-9239 (LLS)
12-03-2020
NINA KUZNETSOVA, Plaintiff, v. DARIA ANDRYUSHCHENKO; NEW YORK COUNTY DISTRICT ATTORNEY'S OFFICE, Defendants.
ORDER OF DISMISSAL :
Plaintiff, appearing pro se, brings this action under 42 U.S.C. § 1983, alleging that Defendants violated her federal constitutional rights. She sues the New York County District Attorney's Office and Assistant District Attorney Daria Andryushchenko. By order dated November 23, 2020, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis ("IFP"). The Court dismisses the complaint for the reasons set forth below.
Plaintiff filed this complaint in the United States District Court for the Eastern District of New York, and that court transferred the matter here. See Kuznetsova v. Andryushchenko, No. 20-CV-3774 (E.D.N.Y. Nov. 3, 2020). Plaintiff filed another case in the Eastern District that was also transferred to this District and opened under docket number 20-CV-9241. See Kuznetsova v. Medina, No. 20-CV-3775 (E.D.N.Y. Nov. 3, 2020). The cases bear some relationship to each other. By order dated December 1, 2020, the Court granted Plaintiff leave to amend her claims in Medina. See ECF 1:20-CV-9241, 8.
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. 28 U.S.C. § 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (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, 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). But the "special solicitude" in pro se cases, id. at 475 (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.
The Supreme Court has held that under Rule 8, a complaint must include enough facts to state a claim for relief "that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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, 556 U.S. 662, 678-79 (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, 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's claims arise from her arrest and subsequent criminal proceedings in connection with an allegedly "false police report" filed by Adam Hicks, Plaintiff's former employer and business partner. Plaintiff alleges that Hicks mentally and sexually abused her before Plaintiff ended the relationship and "became a whistleblower to the city" helping to "crack down" on Hicks's "illegal hotel." (ECF No. 1, at 8.)
On August 17, 2017, Plaintiff was arrested, presumably based on Hicks's police report, and held in jail for 20 hours. Plaintiff alleges that Defendants - the New York County District Attorney's Office and ADA Andryushchenko - treated her differently than other individuals who were arrested and detained. Specifically, Defendants allowed Plaintiff to be held in conditions on Rikers Island that were less favorable than the conditions that were provided for Harvey Weinstein. Further, the District Attorney's Office did not ask the judge "to reduce criminal record after plea or conviction" in Plaintiff's case, as it "did once for Mr. [Jeffrey] Epstein." (Id. at 11.)
Plaintiff alleges that Andryushchenko used the threat of pursuing additional charges in order to "extort" a plea. (Id.) During a hearing, Andryushchenko told the judge that she was under the impression that Plaintiff would plead guilty, which Plaintiff maintains was not true and "had the nature . . . of harassment and applying pressure on Plaintiff." (Id. at 12.) Andryushchenko reduced Plaintiff's charges from felonies to misdemeanors, therefore "robb[ing] the Plaintiff of the Grand Jury that she was looking forward to." (Id.) Plaintiff further alleges that Andryushchenko committed discovery violations, and Plaintiff "believes in good faith that the Defendant has information that casts a substantial doubt upon the accuracy of any evidence, based on which, the Defendant made a decision to drop [the] case from felonies to misdemeanor." (Id. at 13.)
After charges were dropped, Andryushchenko "told" Hicks to file stalking charges against Plaintiff after Plaintiff contacted Hicks. Andryushchenko "was helping Adam Hicks to start a new wave of abuse by telling him to file a new police report." (Id. at 14.) Plaintiff further alleges that Andryushchenko "broke the 14th Amendment" when she refused to speak directly with Plaintiff without Plaintiff's attorney present but did communicate directly with Hicks without his attorney present. (Id. at 13.) Andryushchenko "abused her power" when she "asked a stranger to text the Plaintiff with threats to stop contacting the Defendant and threats of arrest." (Id. at 14.) Plaintiff identifies the "stranger" as "Defendant's supervisor." (Id.)
On June 28, 2020, Plaintiff notified Andryushchenko, through text messages, of her belief that Hicks lied during the criminal case and that he was retaliating against Plaintiff because she was a whistle blower. Andryushchenko "ignored" these statements and "refused to assist Plaintiff who was reporting significant crimes." (Id. at 15.) Plaintiff asserts that Andryushchenko violated the Fourteenth Amendment because when Hicks reported crimes, Andryushchenko "investigated them, or to be more precise she spent time and energy to force guilty pleas." (Id.)
Finally, Plaintiff alleges that the District Attorney's Office posted two statements on its website encouraging people to contact the District Attorney's Office to report incidents of false reporting of crimes and police misconduct. Plaintiff maintains that the District Attorney's Office violated the Fourteenth Amendment because it invited other people to report crimes, but Plaintiff was not allowed to contact the District Attorney's Office about false reporting and police misconduct.
As a result of her arrest and Defendants' actions, Plaintiff dropped out of Harvard University, lost career and educational opportunities, went into debt, became suicidal, "had to sue Adam Hicks in Civil Court and spend money and time to fix [Andryushchenko]'s bad job," and feared for her life. (Id. at 17.) She seeks money damages and various forms of injunctive relief, including an order directing Defendants to bring felony charges against Hicks and directing the New York State Senate "increase charges for false police reports from misdemeanor to felony." (See id. at 17-18.)
DISCUSSION
To state a claim under 42 U.S.C. § 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, 487 U.S. 42, 48-49 (1988).
A. Claims against Andryushchenko
The Court must dismiss Plaintiff's § 1983 claims against Assistant District Attorney Andryushchenko. 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 New York, 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).
Here, Plaintiff's claims against Andryushchenko are based on actions within the scope of Defendant's 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 frivolous. 28 U.S.C. § 1915(e)(2)(b)(i), (iii); see Collazo v. Pagano, 656 F. 3d 131, 134 (2d Cir. 2011) (holding that claim against prosecutor is frivolous if it arises from conduct that is "intimately associated with the judicial phase of the criminal process").
To the extent that Plaintiff seeks an injunction directing Andryushchenko to arrest or prosecute Hicks, the Court must also dismiss that claim. Plaintiff cannot initiate the arrest and prosecution of an individual in this Court because "the decision to prosecute is solely within the discretion of the prosecutor." Leeke v. Timmerman, 454 U.S. 83, 87 (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., 457 F.2d 81, 87 (2d Cir. 1972). Accordingly, the Court dismisses any claim for injunctive relief against Andryushchenko. 28 U.S.C. § 1915(e)(2)(B)(ii).
B. Claims against the New York County District Attorney's Office
Plaintiff's claims against the New York County District Attorney's Office must also be dismissed because municipal agencies or departments do not have the capacity to be sued under New York law. See Omnipoint Commc'ns, Inc. v. Town of LaGrange, 658 F. Supp. 2d 539, 552 (S.D.N.Y. 2009) ("In New York, agencies of a municipality are not suable entities."); Hall v. City of White Plains, 185 F. Supp. 2d 293, 303 (S.D.N.Y. 2002) ("Under New York law, departments which are merely administrative arms of a municipality do not have a legal identity separate and apart from the municipality and cannot sue or be sued."); see also N.Y. Gen. Mun. Law § 2 ("The term 'municipal corporation,' as used in this chapter, includes only a county, town, city and village.").
The Court declines to construe the complaint as asserting claims against New York County. When a plaintiff sues a municipality under § 1983, it is not enough for the plaintiff to allege that one of the municipality's employees or agents engaged in some wrongdoing. The plaintiff must show that the municipality itself caused the violation of the plaintiff's rights. See Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011) ("A municipality or other local government may be liable under this section [1983] if the governmental body itself 'subjects' a person to a deprivation of rights or 'causes' a person 'to be subjected' to such deprivation.") (quoting Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 692 (1978)); Cash v. Cnty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011). In other words, to state a § 1983 claim against a municipality, the plaintiff must allege facts showing (1) the existence of a municipal policy, custom, or practice, and (2) that the policy, custom, or practice caused the violation of the plaintiff's constitutional rights. See Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012); Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997) (internal citations omitted).
Plaintiff has alleged no facts suggesting that the County of New York has a policy, custom, or practice that has caused a violation of her constitutional rights. The Court therefore dismisses Plaintiff's claims against the New York County District Attorney's Office and declines to construe the complaint as asserting claims against the County of New York. 28 U.S.C. § 1915(e)(2)(B)(ii).
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, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (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 her complaint.
To the extent that any of Plaintiff's factual allegations in this complaint are relevant to relevant her claims in Kuznetsova v. Medina, No. 20-CV-9241 (LLS), Plaintiff may allege those facts in any amended complaint she files in that action. --------
CONCLUSION
The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket.
The Court dismisses Plaintiff's complaint for failure to state a claim on which relief may be granted, for seeking monetary relief against a defendant who is immune from such relief, and as frivolous. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). SO ORDERED. Dated: December 3, 2020
New York, New York
/s/_________
Louis L. Stanton
U.S.D.J.