affirmance on appeal stem from ambiguous and unsubstantiated constitutional deprivations at trial which were the result of an alleged conspiracy headed by Cuomo to imprison minorities so as to award lucrative prison construction contracts, presumably to other members of the alleged conspiracy. Molina, however, offers no factual support to his conspiracy allegations, but only his own conclusory statements.
To the extent that Molina sees constitutional violations in his state court convictions (a claim not readily discernable), habeas corpus relief serves as his sole possible federal remedy, although he does not pursue it here. Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S. Ct. 1827, 1841, 36 L. Ed. 2d 439 (1973); Cook v. City of New York, 607 F. Supp. 702, 704 (S.D.N.Y. 1985); Carter v. Newburgh Police Dep't, 523 F. Supp. 16, 19 (S.D.N.Y. 1980)(see case cited therein). Section 1983 and RICO are improper mechanisms for the relief Molina seeks. Therefore, Molina's complaint must be dismissed.
Additionally, even if the Court did not dismiss the action for the foregoing reason, Molina has not met the pleading requirements for either RICO or § 1983.
First, the specific threshold pleading requirements of a private action under § 1962 of RICO were set forth in Moss v. Morgan Stanley Inc., 719 F.2d 5, 17 (2d Cir. 1983), cert. denied sub nom. Moss v. Newman, 465 U.S. 1025, 104 S. Ct. 1280, 79 L. Ed. 2d 684 (1984). Molina has failed to even name a section of the RICO statute in his papers, much less meet the particularized requirements delineated in Moss, therefore, his complaint must be dismissed.
Second, § 1983 claims must be supported by "more than conclusory allegations to avoid dismissal of a claim predicated on a conspiracy to deprive [plaintiff] of his constitutional rights." Polur v. Raffe, 912 F.2d 52, 56 (2d Cir. 1990), cert. denied 499 U.S. 937, 111 S. Ct. 1389, 113 L. Ed. 2d 446 ; See also Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir. 1977)(per curium) and cases cited therein. Molina has failed to provide this support, and therefore his complaint must be dismissed.
Additionally, even if the Court did not dismiss the action for the foregoing reasons, New York State and its officials acting in their official capacity, have immunity in federal court under the Eleventh Amendment. Garcia v. Munoz, 1995 U.S. Dist. LEXIS 12086 at *4, 1995 WL 498777 at *2 (S.D.N.Y. 1995); See also Edelman v. Jordan, 415 U.S. 651, 662, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974); Ying Jing Gan v. City of New York, 996 F.2d 522, 529 (2d Cir. 1993).
Because Molina names Pataki as a defendant but does not accuse him of anything and accuses Cuomo but does not name him in the caption, the only possible conclusion is that Molina sues Pataki in his official capacity. Neither RICO nor § 1983 override New York's Eleventh Amendment immunity and New York has not consented to such suits in federal court. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 66, 109 S. Ct. 2304, 2309-10, 105 L. Ed. 2d 45 (1989)(Section 1983 does not manifest a clear intention to preempt, and thus does not override, the historic immunity of the States, 491 U.S. at 66-71, 109 S. Ct. at 2308-12); Dupoy v. New York State Division of Police, No. 91 CV 1237, 1994 WL 171515, at *1 (N.D.N.Y. Apr. 28, 1994); Edelman v. Jordan, 415 U.S. 651, 662, 94 S. Ct. 1347, 1355, 39 L. Ed. 2d 662 (1974); Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 113 S. Ct. 684, 687, 121 L. Ed. 2d 605 (1993); Welch v. Texas Dep't of Highways and Public Transp., 483 U.S. 468, 480, 107 S. Ct. 2941, 2949-50, 97 L. Ed. 2d 389 (1987)(plurality opinion). Accordingly, Molina's § 1983 claim is dismissed.
Although there is little caselaw regarding state immunity to RICO claims, the Court is persuaded by the argument articulated in Productions & Leasing v. Hotel Conquistador, 573 F. Supp. 717, 720 (D.Nev. 1982), aff'd, 709 F.2d 21 (9th Cir. 1983) that "without a clear showing that Congress intended abrogation of the Eleventh Amendment governmental immunity, this Court will not infer that the RICO Act deprives the State  of its protection." Accordingly, Molina's RICO claim is dismissed.
Molina's assertions of malicious prosecution and denial of his right to waive counsel find no factual support in any of his papers, and therefore these claims are dismissed.
Because the Court dismisses Molina's complaint it need not appoint counsel.
In his opposition papers, Molina moves to amend his complaint. Although Rule 15(a) directs that "leave [to amend] shall be freely given when justice so requires," if a claim is frivolous on its face, the court need not permit the amendment. Here, Molina has alleged nothing new in his motion to amend, and the Court finds that his proposed amendment is meritless and futile. Foman v. Davis, 371 U.S. 178, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962); Azurite Corp. Ltd. v. Amster & Co., 52 F.3d 15, 19 (2d Cir. 1995); Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir. 1990); Bank of New York v. Sasson, 786 F. Supp. 349, 352 (S.D.N.Y. 1992).
Finally, the Court notes that it has no power to order media coverage, an interview with an international humans rights commission, an investigation of alleged wrongdoing, initiation of criminal complaints, or the bringing of charges, but only preside over matters appropriately brought before it.
For all of the foregoing reasons, this action is hereby dismissed pursuant to Rule 12(b)(6) and (1).
For the reasons stated above, the Defendants' motion for dismissal is granted and Molina's remaining motions are denied in their entirety. The action, in its entirety, hereby is dismissed with prejudice.
Dated: Brooklyn, New York
December 27, 1995
John R. Bartles
UNITED STATES DISTRICT JUDGE