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concluding that Section 1512 has "no private right of action"
Summary of this case from McDonald v. EspositoOpinion
19-CV-6734L
03-19-2020
Pavel Igorevich SIVOKONEV, Plaintiff, v. Honorable Andrew M. CUOMO, Letitia James, Lovely Warren, Cheryl Dinolfo, Judge Ellen Yacknin, Sheriff Todd Baxter, and Eric Salamone, individually and in their official capacities, Defendants.
Pavel Igorevich Sivokonev, Webster, NY, pro se. Matthew D. Brown, New York State Office of the Attorney General, Rochester, NY, for Defendants Honorable Andrew M. Cuomo, Letitia James, Judge Ellen Yacknin, Eric Salamone. Spencer L. Ash, City of Rochester Law Department, Rochester, NY, for Defendant Lovely Warren. Adam M. Clark, Monroe County Department of Law, Rochester, NY, for Defendants Cheryl Dinolfo, Sheriff Todd Baxter.
Pavel Igorevich Sivokonev, Webster, NY, pro se.
Matthew D. Brown, New York State Office of the Attorney General, Rochester, NY, for Defendants Honorable Andrew M. Cuomo, Letitia James, Judge Ellen Yacknin, Eric Salamone.
Spencer L. Ash, City of Rochester Law Department, Rochester, NY, for Defendant Lovely Warren.
Adam M. Clark, Monroe County Department of Law, Rochester, NY, for Defendants Cheryl Dinolfo, Sheriff Todd Baxter.
DECISION AND ORDER
DAVID G. LARIMER, United States District Judge
Plaintiff, proceeding pro se, initially brought this action against New York State Governor Hon. Andrew M. Cuomo, individually and as an "owner, officer or manager of the New York State" (hereafter "Cuomo"). On February 26, 2020, Cuomo moved to dismiss the Complaint for failure to state a claim pursuant to Fed. R. Civ. Proc. 12(b)(6), noting that the Complaint did not make any factual allegations concerning him. (Dkt. #8). In the meantime, plaintiff had filed an Amended Complaint (Dkt. #9). The Amended Complaint amplifies the original, names several additional defendants, and alleges, inter alia, that all of the defendants are engaged in an elaborate conspiracy to silence the plaintiff with respect to law enforcement misconduct. The additional defendants are: (1) Letitia James, individually and as an "owner, officer, or manager of the New York State Department of Law; (2) Lovely Warren, individually, and as an "owner, officer or manager of the City of Rochester, New York"; (3) Cheryl Dinolfo, individually and as an "owner, officer or manager of the Monroe County, New York"; (4) Judge Ellen Yacknin, individually, and as an "owner, officer, or manager of the City Court of Rochester, New York"; (5) Sheriff Todd Baxter, individually and as an "owner, officer or manager of the Monroe County Sheriffs"; and (6) Eric Salamone, individually and as an "owner, officer, or manager of the New York State Police." Plaintiff also moved for expedited discovery (Dkt. #20).
On March 9, 2020, defendants Cuomo, James, Yacknin and Salamone moved to dismiss the Amended Complaint for failure to state a claim pursuant to Fed. R. Civ. Proc. 12(b)(6). (Dkt. #17). On March 18, 2020, defendants Baxter and Dinolfo likewise moved to dismiss the Amended Complaint for failure to state a claim. (Dkt. #21).
Plaintiff's Amended Complaint is not a model of clarity, and the Court has labored to understand the chronological course of events it describes. In general, it appears that plaintiff filed a lawsuit in Rochester City Court in or around January 2019, against Mercedes Benz of Rochester (a non-party to this action). Plaintiff claims that the lawsuit was tried before Judge Yacknin, but that he was in some way denied sufficient opportunities to present his claims. Plaintiff also alleges that local law enforcement agencies have conspired with and utilized "local organized crime gangs" and the court system to stalk, harass and terrify him and his family. Plaintiff claims that in connection with this conspiracy, he has been prevented from contacting the media, that his phone and computer have been hacked, and that he is being surveilled by police drones.
Plaintiff also alleges that the staff of the Mercedes Benz dealership has colluded with the defendants by causing his vehicle to be unlocked, and by allowing a tire to be replaced and swapped out in such a manner as to disguise the tire's role in causing motor vehicle accidents which plaintiff believes were calculated to injure him and prevent him from testifying about police corruption. He also alleges that law enforcement agents have attempted to frame him for terrorism, and that defendant police officer Eric Salamone has refused to investigate his concerns.
The Amended Complaint purports to assert causes of action for: (1) law enforcement misconduct in violation of 17 U.S.C. § 242; (2) extortion in violation of 18 U.S.C. § 1951 ; (3) honest services mail and wire fraud in violation of 18 U.S.C. § 1341 et seq. ; (4) bribery of public officials and witnesses in violation of 18 U.S.C. § 201 ; (5) theft of public records in violation of 18 U.S.C. § 641 ; (6) criminal conspiracy in violation 18 U.S.C. § 903; (7) witness tampering in violation of 18 U.S.C. § 1512 ; (8) obstruction of justice in violation of 18 U.S.C. § 1501 et seq. ; (9) violation of the Victims and Witness Protection Act in violation of 18 U.S.C. § 1503 ; and (10) denial of due process in violation of the Fourth Amendment to the United States Constitution.
For the reasons that follow, the motions to dismiss (Dkt. #17, Dkt. #21) are granted, and the Amended Complaint is dismissed.
DISCUSSION
I. Relevant Standards
In deciding a motion to dismiss under Fed. R. Civ. Proc. 12(b)(6) for failure to state a cause of action, a court should "draw all reasonable inferences in [plaintiff's] favor, assume all well-pleaded factual allegations to be true, and determine whether they plausibly give rise to an entitlement to relief." Faber v. Metro. Life Ins. Co. , 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks omitted).
II. Plaintiff's Criminal Causes of Action
The Amended Complaint purports to state causes of action (numbered 1-9) against the defendants for law enforcement misconduct, extortion, honest services mail and wire fraud, bribery, theft of public records, criminal conspiracy, witness tampering, obstruction of justice, and violation of the Victim and Witness Protection Act.
"It is a truism, and has been for many decades, that in our federal system crimes are always prosecuted by the Federal Government, not ... by private complaints." Conn. Action Now, Inc. v. Roberts Plating Co. , 457 F.2d 81, 86-87 (2d Cir.1972). See also Sheehy v. Brown , 335 Fed. Appx. 102, 104 (2d Cir. 2009) ("federal criminal statutes do not provide private causes of action") (unpublished opinion).
Numbered causes of action 1-9 of the Amended Complaint are all criminal causes of action for which no private right of action exists. See e.g. , Eliahu v. Jewish Agency for Israel , 919 F.3d 709, 713 (2d Cir. 2019) (there is no private right of action for extortion or mail fraud); Robinson v. Overseas Military Sales Corp. , 21 F.3d 502, 511 (2d Cir. 1994) (there is no private right of action for law enforcement misconduct pursuant to 18 U.S.C. § 242 ); Robinson v. New York , 2019 U.S. Dist. LEXIS 119896 at *9 (N.D.N.Y. 2019) (no private right of action for bribery); Slaughter v. Mahar , 2019 WL 3454192 at *1, 2019 U.S. Dist. LEXIS 127189 at *2 (N.D.N.Y. 2019) (no private right of action for witness tampering); Nichairmhaic v. Dembo , 2013 WL 6385041, at *5–6, 2013 U.S. Dist. LEXIS 171952 at *14-*15 (D. Conn. 2013) ("[a]lthough the Second Circuit has not addressed the question of whether section 1503 [of the Victim and Witness Protection Act] creates a private right of action, decisions from other circuits are uniform in denying a private civil right of action under section 1503 [which] is a criminal statute and provides no civil remedies").
Those claims are, accordingly, dismissed.
III. Plaintiff's Due Process Claim
Count 10 of the Amended Complaint alleges that acts and omissions by law enforcement and "the judicial system" (plaintiff does not name any defendants with respect to this claim, but in the interest of granting plaintiff every favorable inference, the Court assumes plaintiff is referring to defendants Judge Yacknin, Sheriff Baxter, and Investigator Salamone) violated his Constitutional rights to due process under the Fourth and Fifth Amendments to the United States Constitution, pursuant to 42 U.S.C. § 1983.
A. Judge Yacknin
With respect to Judge Yacknin, "judges enjoy absolute immunity from suit pursuant to 42 U.S.C. § 1983 for actions taken in the performance of their duties." Robinson , 2019 U.S. Dist. LEXIS 119896 at *6 (citing Young v. Selsky , 41 F.3d 47, 51 (2d Cir. 1994) ). Plaintiff alleges that Judge Yacknin violated his Constitutional rights when she oversaw the trial of a matter brought by plaintiff: he makes no allegation that she undertook any actions outside of the scope of her duties. As such, plaintiff fails to state a claim against Judge Yacknin, and his claims against her are dismissed.
B. Investigator Salamone
Plaintiff's only factual allegation against Salamone, a police investigator, is that he "refused to take evidence from [plaintiff] or file a report" when plaintiff asked him to, and refused plaintiff's requests to transport plaintiff's vehicle to a secure location and arrange for it to be examined by forensic experts. (Dkt. #9 at 5).
It is well settled that failure to investigate does not give rise to a Constitutional claim. See Bernstein v. New York , 591 F. Supp. 2d 448, 460 (S.D.N.Y. 2008) ("courts within the Second Circuit have determined that there is no constitutional right to an investigation by government officials ... [t]hus, there is no constitutional violation where the government refuses to investigate a crime.") (internal brackets, citation footnotes and punctuation omitted); Pagan v. Brown , 2009 WL 2581572 at *11, 2009 U.S. Dist. LEXIS 75235 at *43 (N.D.N.Y. 2009) ("[t]here is no constitutional violation where the government refuses to investigate a crime ... [i]n order for a constitutional violation to have occurred, the investigation itself must have resulted in a deprivation of a constitutional right").
Plaintiff therefore fails to state a claim against Salamone, and those claims are dismissed.
C. The Remaining Defendants: Cuomo, James, Warren, Dinolfo, and Baxter
Plaintiff makes no factual allegations whatsoever with respect to any of the remaining individual defendants, except to identify their job titles. As such, any claims against them in their individual capacities are dismissed. See generally Morabito v. New York , 803 Fed.Appx. 463, 465–66, 2020 U.S. App. LEXIS 5594 at *4 (2d Cir. 2020) (in order to establish a defendant's individual liability in a suit brought under § 1983, a plaintiff must show the defendant's personal involvement in the alleged constitutional deprivation).
IV. Plaintiff's Second Amended Complaint
On March 10, 2020, plaintiff filed a Second Amended Complaint. (Dkt. #18). Rule 15 of the Federal Rules of Civil Procedure permits amendment of a complaint one time as a matter of right within twenty-one days after a Rule 12 motion is filed. See Fed. R. Civ. P. 15(a)(1)(B). Otherwise, a party may amend only with the written consent of counsel or leave of the court, the latter of which should be freely given "when justice so requires." Id. However, "[l]eave to amend may be denied on grounds of futility if the proposed amendment fails to state a legally cognizable claim or fails to raise triable issues of fact." AEP Energy Servs. Gas Holding Co. v. Bank of Am., N.A. , 626 F.3d 699, 726 (2d Cir. 2010). "An amendment to a pleading will be futile if a proposed claim could not withstand a motion to dismiss pursuant to Rule 12(b)(6)." Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals , 282 F.3d 83, 88 (2d Cir. 2002).
Initially, plaintiff has already exercised his right to amend the complaint with the filing of the initial Amended Complaint. Because he never sought or obtained leave of counsel or the Court to file the Second Amended Complaint, it is a nullity, and not an operative pleading.
Nonetheless, the Court observes that even if plaintiff had sought leave to amend, it would be futile, as the proposed Second Amended Complaint fails to state a cognizable claim. To the extent that the proposed Second Amended Complaint restates the causes of action set forth in the Amended Complaint, they are subject to dismissal for the reasons set forth above.
The proposed Second Amended Complaint also seeks to add 18 additional defendants, and to assert the following additional causes of action: (1) violation of the "Bill of Rights" under 42 U.S.C. § 1983 against this Court, for previously dismissing a products liability action brought by plaintiff (Sivokonev v. Zetsche et al. , 20-CV-6065) for failure to state a claim; and (2) torture, asserted against all the defendants pursuant to 18 U.S.C. § 2340.
With respect to the first proposed additional claim, the Court notes that it is entitled to absolute immunity against 42 U.S.C. § 1983 claims for acts undertaken in the course of its duties, as explained above. See e.g. , Robinson , 2019 U.S. Dist. LEXIS 119896 at *6. Plaintiff's Section 1983 "Bill of Rights" allegations therefore fail to state a cognizable claim.
Turning to the second proposed additional claim of torture under 18 U.S.C. § 2340, it is well settled that the statute applies only to acts outside the United States, and in any event refers to a criminal cause of action for which no private civil right of action exists. See Messiah v. Pafumi , 2014 WL 1671893 at *2, 2014 U.S. Dist. LEXIS 58288 at *5 (D. Conn. 2014) ( Section 2340 "criminalize[s] torture outside the United States; [it does] not provide civil redress for torture within the United States"). As such, the proposed Second Amended Complaint fails to state a claim pursuant to 18 U.S.C. § 2340.
Because both of plaintiff's proposed additional causes of action fail to state a claim against any defendant (present or proposed), further amendment of the Amended Complaint would be futile. To the extent that plaintiff's filing of a proposed Second Amended Complaint (Dkt. #18) can be construed as a request for leave to amend, that request is accordingly denied.
CONCLUSION
Because the Amended Complaint fails to state a claim on its face, further briefing is not necessary, and the Court's March 12, 2020 Scheduling Order relative to the pending motions (Dkt. #19) is hereby vacated.
For the reasons stated above, defendants' motions to dismiss (Dkt. #17, Dkt. #21) are granted, and the Amended Complaint is hereby dismissed in its entirety, with prejudice.
Defendant Cuomo's prior motion to dismiss the initial Complaint (Dkt. #7) and plaintiff's motion for expedited discovery (Dkt. #20) are denied as moot. To the extent that plaintiff's improper filing of a proposed Second Amended Complaint without leave of court (Dkt. #18) may be considered a request for such leave, that request is hereby denied.
IT IS SO ORDERED.