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HOWARD v. KOCH

January 11, 1982

Charles HOWARD, Plaintiff
v.
Edward KOCH, et al., Defendants.



The opinion of the court was delivered by: COSTANTINO

MEMORANDUM OF DECISION AND ORDER

COSTANTINO, District Judge.

 This is a pro se action filed by the plaintiff Charles Howard ("Howard") seeking various forms of relief, including among other things, release from custody and monetary damages. The defendants have made motions to dismiss under Fed.R.Civ.P. 12(b)(1) & (6). For reasons set forth below, the motions are granted in part and denied in part. But, the complaint in any event is dismissed in all respects.

 BACKGROUND

 The defendants in this action include the Mayor of the City of New York, the District Attorneys of Kings and Queens counties, four Assistant District Attorneys in Kings County, and seven New York City police detectives and sergeants. In the complaint they are accused under 42 U.S.C. § 1983 of conspiring to deny the plaintiff, Charles Howard, of rights guaranteed to him by the United States Constitution -- namely, the Fourth Amendment prohibition against illegal search and seizure. In a subsequent affidavit, the plaintiff Howard has added both due process and equal protection claims.

 Plaintiff's claims relate to a sequence of events starting in July of 1979 and including Mr. Howard's arrest, Grand Jury indictments, trial and incarceration.The complaint describes three criminal charges made against the plaintiff concerning the hijacking of gasoline and liquor trucks. The plaintiff was first arrested at his home in Brooklyn on July 19, 1979, and subsequently released. He was again arrested on January 22, 1980, indicted by the Kings County Grand Jury on April 18, 1980 for a truck hijacking which took place on December 21, 1979, tried on this charge, and convicted. He was thereafter indicted by a Queens County Grand Jury on September 22, 1980, for a truck hijacking which took place on December 17, 1979. Howard is currently incarcerated and awaiting sentencing in Kings County and trial in Queens County.

 The plaintiff is alleging that in the course of these arrests and their aftermath, he was systematically denied of his constitutionally-protected rights. The Mayor and two District Attorneys are not specifically charged with any wrongdoing, but presumably are named in the suit under the theory of respondeat superior. One Assistant District Attorney, Larry Hartstein, is named in the complaint although no specific allegations are made against him. The remaining three Assistant District Attorneys and the various police officers all had some direct involvement in the handling of the plaintiff's case.

 STANDING

 The allegations of the plaintiff Howard in regard to police action toward his girlfriend and/or her children are easily dismissed. The issue is one of standing, as it goes to justiciability. Judicial power, as defined in Article III of the United States Constitution, extends only to the actual parties in controversy. Therefore, standing is a threshold which must be met before the court can proceed to judge the merits of the case. Warth v. Seldin, 422 U.S. 490, 498-9, 95 S. Ct. 2197, 2204-05, 45 L. Ed. 2d 343 (1975).

 This court is therefore without authority to decide the merits of the allegations concerning police conduct towards Mr. Howard's girlfriend and/or her children. There must be a direct, personal relationship between the party seeking relief, and the parties to the action for which that relief is sought. Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 703, 7 L. Ed. 2d 663 (1962). It is possible for a plaintiff to allege a course of conduct which was harmful to a class of possible plaintiffs, of which he is a member. U.S. v. SCRAP, 412 U.S. 669, 687-8, 93 S. Ct. 2405, 2415-16, 37 L. Ed. 2d 254 (1973). But that is not the case before the court.

 Thus, all allegations concerning police conduct toward anyone other than Howard himself, are hereby dismissed.

 HABEAS CORPUS

 In Howard's request for relief, he has included a demand that he be immediately released from custody. Without discussing the merits of this request, it is clearly not cognizable under Section 1983 and thus the court must dismiss for lack of jurisdiction that portion of the complaint which asks for Howard's immediate release. In Preiser v. Rodriguez, 411 U.S. 475, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973), the Supreme Court noted that

 when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal ...


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