that (1) the warrant was issued without probable cause, (2) the warrant was issued for an "infraction," and not a for "crime," (3) the warrant lacked a description of the plaintiff and failed to name a location, and (4) the warrant was an "incomplete instrument."
On October 18, 1995 Village police officers attempted to serve the warrant and take the plaintiff into custody at the home of plaintiff's daughter in the Town of Montgomery.
Plaintiff refused to open the door to the home and refused to be taken into custody.
On October 19, 1995, defendant Shawn Barry, a Village police officer, swore out a misdemeanor complaint in the Town charging plaintiff with resisting arrest. Town Justice Robert Kelso reviewed the Misdemeanor Complaint and the prior Warrant of Arrest issued by Justice Meisel, and issued a second Warrant of Arrest in the Town charging plaintiff with resisting arrest. Officers Brian Quinn, Edward Stockhoffer, Shawn Barry and Thomas McCoskery effected the arrest pursuant to the warrant, and plaintiff was arraigned the same day before Village Justice Meisel on the first warrant and Town Justice Kelso on the second warrant. She ultimately was released on bail in the first instance and on her own recognizance in the second. On December 6, 1995, Justice Meisel conducted a traffic trial at which plaintiff was convicted of speeding and operating an unregistered motor vehicle. A fine was assessed which remains unpaid to date. Plaintiff has not yet appeared with regard to the charge of resisting arrest in the Town of Montgomery.
On February 8, 1996, plaintiff filed in this court a "Complaint for Civil Rights Damages and Violations of Oaths of Office" against Sutcliffe (the Village of Walden Officer issuing the original tickets), Justice Meisel (the Walden Village Justice who issued the arrest warrant for plaintiff's failure to appear to answer the traffic charges), Officer Barry, (the Officer who attempted to effect Meisel's warrant and swore out a complaint for resisting arrest), Justice Kelso (the Montgomery Town Justice who issued a warrant for resisting arrest) and Officers Quinn, Stockhoffer, and McCoskery (the Officers who executed Kelso's warrant). Although it is difficult to discern the precise claims plaintiff seeks to bring, she recites that 42 U.S.C. § 1983 ("Civil action for deprivation of rights"), § 1985 ("Conspiracy to interfere with civil rights") and § 1986 ("Action for neglect to prevent" (a violation of § 1985)) were violated by, inter alia, the warrants, her arrest and Judge Meisel's refusal to accept her "Refusal for Cause." She asserts that various of her constitutional rights, guaranteed by the 1st, 4th, 5th, 6th, 7th, 8th, 10th and 14th Amendments were violated. Defendants brought a motion for summary judgment under FED. R. CIV. P. 56 arguing that they are entitled to either absolute or qualified immunity from liability. We analyze the various claims against the individual defendants below.
I. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(d). A fact is material only if, based on that fact, a reasonable jury could find in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). On a motion for summary judgment, all evidence must be viewed and all inferences must be drawn in the light most favorable to the nonmoving party. City of Yonkers v. Otis Elevator Co., 844 F.2d 42, 45 (2d Cir. 1988).
The party seeking summary judgment bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Upon the movant's satisfying that burden, the onus then shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 250. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. Ltd v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986), but must set forth specific facts showing that there is a genuine issue of fact for trial." First Nat'l Bank of Az. v. Cities Serv. Co., 391 U.S. 253, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1988).
II. OFFICIAL CAPACITY CLAIMS
A. Damages claims
We note at the outset that it is unclear from the complaint whether plaintiff intends to sue defendants in their individual or official capacities. It appears likely that her complaint only states a claim against defendants in their individual capacities since she has asked for punitive damages, Compl. P 50(2), and the defendants have responded by raising absolute and qualified immunity defenses. See Rodriguez v. Phillips, 66 F.3d 470, 482 (2d Cir. 1995) (Where complaint seeks punitive damages unavailable against a state, and defendants defend on qualified immunity grounds, a defense unavailable in official capacity suits, this suggests parties viewed the suit to be in individual capacities only). However, guided by the Second Circuit's opinion in Ying Jing Gan v. City of New York, 996 F.2d 522, 530 (2d Cir. 1993), we will treat plaintiff's pro se complaint as attempting to bring claims against all defendants in both capacities.
To the extent that a state official is sued in his official capacity, such a suit is deemed to be a suit against the state, and the official is entitled to invoke Eleventh Amendment immunity. Id. at 529. To the extent he is sued for damages in his individual capacity, he is not entitled to invoke the Eleventh Amendment, but where applicable, may rely upon the doctrines of absolute or qualified immunity. Id. Although we treat plaintiff's complaint as attempting to sue defendants in their official capacities as well as individually, it is not necessary to allow plaintiff to amend her complaint to specifically include these claims because such claims would be barred as a matter of law.
The Eleventh Amendment bars suits against the state for money damages to be paid from the state's treasury, even if an individual officer is named as defendant. Ford Motor Co. v. Dep't of Treasury, 323 U.S. 459, 464, 89 L. Ed. 389, 65 S. Ct. 347 (1944). Thus, any damage claims against Justices Meisel and Kelso would be barred by the Eleventh Amendment, since they are state officials. See Sassower v. Mangano, 927 F. Supp. 113, 120 (S.D.N.Y. 1996) (suit against presiding and associate Justices of the Supreme Court of New York, Second Department barred); Jaffer v. Chemical Bank, 1994 WL 392260 *2 (suit against Judge of the Civil Court of the City of New York for money damages in official capacity is essentially a suit against the state); Birnbaum v. Rodriquez, No. 94-5180, 1995 WL 74540 at *2 (E.D.N.Y. Dec. 4, 1995) (claims against Judge of Housing Court of City of New York barred); Baker v. Hardy, 1989 U.S. Dist. LEXIS 3285 at *6, 1989 WL 32097 at *2 (N.D.N.Y. 1989) (claims against state administrative law judge barred).
Any damage claims against the police officers in their official capacities would also be barred, not by the Eleventh Amendment, see Draper v. Coombs, 792 F.2d 915, 919, n.5 (since the Eleventh Amendment does not protect local government bodies or local officials, city police officers are not afforded Eleventh amendment immunity), but by the requirement that a municipal policy or custom must be proven in order for a municipality to be liable under § 1983 for the actions of its officers. Monell v. Dep't of Soc. Serv., 436 U.S. 658, 694, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). Because plaintiff has made no allegations, and we see no basis for concluding, that the officers' allegedly unconstitutional actions constituted a policy or practice of their respective municipalities, plaintiff has not, and apparently cannot state a claim for damages against the individual officers in their official capacities.
B. Request for Declaratory Judgment
Plaintiff requests that two types of declaratory judgment be entered against defendants. Although the Eleventh Amendment bars damage claims against state officials acting in their official capacity, federal courts can enjoin state officers acting in their official capacity, as long as the injunction only governs the officer's future conduct and a retroactive remedy is not provided. Russell v. Dunston, 896 F.2d 664, 668 (2d Cir.), cert. denied, 498 U.S. 813, 112 L. Ed. 2d 26, 111 S. Ct. 50 (1990). This reasoning has apparently been extended to declaratory judgments. See Pulliman v. Allen, 466 U.S. 522, 544, 104 S. Ct. 1970, 80 L. Ed. 2d 565 (1983) (dissenting opinion). However, the Supreme Court has held that "the Eleventh Amendment bars a retrospective declaration of a violation of federal law where there is no continuing violation to enjoin." Marbley v. Bane, 57 F.3d 224, 232 (2d Cir. 1995) (injunction), (citing Green v. Mansour, 474 U.S. 64, 73, 88 L. Ed. 2d 371, 106 S. Ct. 423 (1985) (declaratory judgment)).
Plaintiff first requests a declaratory judgment that defendants "violated clearly established law." Compl. P 50(4). This is clearly nothing more than a request for a "declaration of a violation of federal law where there is no continuing violation to enjoin," and is thus barred against defendants Meisel and Kelso in their official capacities, since they are state officers. See Marbley, 57 F.3d at 232. Additionally, plaintiff's request for a declaratory judgment fails to state a claim against the individual officer defendants in their official capacities because it does not satisfy the Monell requirement of alleging that the officers acted pursuant to an official pattern or practice of their municipalities.
Plaintiff also requests a declaratory judgment that defendants' actions amounted to a criminal conspiracy to violate her rights under 18 U.S.C. §§ 241 and 242. This request is barred against all defendants in their official capacities for the same reasons as the first request; against Meisel and Kelso it is merely a request for a retrospective declaration of a violation and is barred by the Eleventh Amendment; against the officers it fails to allege the requisite official policy or practice of their municipalities. There is an additional problem with this request, however. Since §§ 241 and 242 are criminal statutes, there is no private right of action for violation of them. See Powers v. Karen, 768 F. Supp. 46, 51 (E.D.N.Y.), aff'd 963 F.2d 1522 (2d Cir. 1992). Thus, plaintiff has no standing to bring a claim under these sections.
Therefore, because we find that plaintiff apparently has not intended to, and on these facts legally could not, state claims for damages or for declaratory judgment against defendants in their official capacities, we next consider her claims against defendants in their individual capacities.
III. INDIVIDUAL CAPACITY CLAIMS
A. Section 1983 Claims
1. Claims Against Officer Sutcliffe
As best we can parse plaintiff's complaint, she appears to allege that Officer Sutcliffe's entering her daughter's property and there requesting that she return to her car and produce her license and registration, and then issuing her the two traffic tickets amounted to a trespass, Stmt. of Facts P 1, as well as an arrest without probable cause.
Officer Sutcliffe asserts that he is entitled to qualified immunity from liability.
A trespasser is "a person who enters or remains upon land in the possession of another without a privilege to do so, created by the possessor's consent or otherwise." WM. PROSSER, LAW OF TORTS § 58 at 357 (1980). Plaintiff's trespass allegation fails to state a claim for two reasons. First, plaintiff, who was arrested on what was apparently her daughter's private property, Compl. P 14, does not have the requisite ownership interest to support an action for trespass. Second, even if she had such an interest, Officer Sutcliffe's entry onto the property, for the purpose of fulfilling his public duty (issuing traffic citations to a motorist he personally saw violate a traffic law)
, is privileged. See People v. Czerminski, 94 A.D.2d 957, 464 N.Y.S.2d 82, 83 (4th Dept. 1983).
As for the false arrest charge, "an arresting officer is entitled to qualified immunity to a claim of unlawful arrest if 'either (a) it was objectively reasonable for the officer to believe probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met.'" Wachtler v. County of Herkimer, 35 F.3d 77, 80 (2d Cir. 1994) (citations omitted). Here, Officer Sutcliffe did not take plaintiff into custody at all, but simply flashed his lights until she pulled into her daughter's driveway and ordered her to produce her license and registration. Even if this brief intrusion on her liberty could be considered a seizure (and we do not believe it can), Officer Sutcliffe's request was objectively reasonable under Simmons, supra, and N.Y. VEH. AND TRAF. L. § 401 (McKinney 1996) (When asked for registration, the "operator shall furnish to . . . police officer any information necessary for the identification of such vehicle and its owner."). Had plaintiff ignored the request, Officer Sutcliffe would have had probable cause to arrest her for driving without a license. Wachtler, 35 F.3d at 80. Thus he is entitled to qualified immunity against plaintiff's damage claims based on his arrest of her.
Qualified immunity does not extend to requests for declaratory judgment, however. Pulliman, 466 U.S. at 544; New York State Assoc. of Realtors v. Shaffer, 833 F. Supp. 165, 187 (E.D.N.Y.), (citing Benitez v. Wolff, 985 F.2d 662, 666 (2d Cir. 1993) (qualified immunity protects against suits for damages)), rev'd on other gnds, 27 F.3d 834 (1994). Since plaintiff asked for a declaration that Sutcliffe violated "clearly established laws," however, and this is the same standard used to determine whether an officer is entitled to qualified immunity, see Wachler, 35 F.3d at 80, and we have found that Officer Sutcliffe is entitled to such immunity, it follows that he cannot have violated "clearly established laws." As for plaintiff's second request for a declaratory judgment, as discussed above she does not have standing to seek relief under §§ 241 and 242. Thus, plaintiff is not entitled to a declaratory judgment against Officer Sutcliffe.
We therefore grant Officer Sutcliffe's motion for summary judgment on all claims against him.
2. Claims against Justices Meisel and Kelso
Plaintiff alleges that Justice Meisel "refused [her] right to petition court, refused to recognize and in total disregard [sic] papers submitted to court by [her] issued Warrant for arrest for non-crimes," (Stmt. of Facts P 2). She apparently believes this action denied her her First Amendment right to petition the government. See Compl. P 45. She also alleges Justice Meisel "denied [her] right to trial by jury, never established jurisdiction and conducted a proceeding which lacked representation for the People of the State of New York," (Id. at P 8), and "set bail without Representation for the People of the State of New York and issued plea on behalf of Party injured by practicing law from the bench," (Id. at P 10), and refused her the opportunity to make a phone call. Her complaint alleges that at no time was she read her rights or allowed a call to obtain counsel. Compl. P 38.
In addition, plaintiff alleges Justice Kelso issued a "warrant for Arrest based upon perjurious information and not in compliance with the 4th amendment." Stmt. of Facts P 6. In addition, she alleges that Kelso, who was "seated at the opposite end of the same table" from Justice Meisel, also arraigned her without reading her her rights or allowing her a phone call and held court out of his jurisdiction. Compl. P 35-38; Stmt. of Facts P 9. Plaintiff also alleges that "for violating their oaths of office to uphold the laws of the Constitution . . . by denying access through threats, coercion and intimidation . . . Party Injured Ippolito was injured through equal protection of the laws . . . ." Compl. P 46.
Judges are entitled to absolute immunity in the exercise of their judicial function. Tulloch v. Coughlin, 50 F.3d 114, 116 (2d Cir. 1995). Immunity is overcome in only two circumstances: (1) where the actions were not taken in their judicial capacity and (2) where the actions, though judicial in nature, were taken in complete absence of all jurisdiction. Mireles v. Waco, 502 U.S. 9, 12, 116 L. Ed. 2d 9, 112 S. Ct. 286 (1991). The Mireles Court went on to note that the proper analysis is of the "nature of the act" and not of the impropriety of the act, because "if only the particular act in question were to be scrutinized, then any mistake of a judge in excess of his authority would become a 'nonjudicial' act . . . If judicial immunity means anything, it means that a judge will not be deprived of immunity because the action he took was in error or in excess of his authority." Id. at 12-13.
An examination of plaintiff's complaint and moving papers reveals that neither of these exceptions to judicial immunity is present in this case. Other than conclusory allegations that the Justices were violating their oaths of office and acting without jurisdiction, plaintiff has offered no evidence that Justices Kelso and Meisel were acting in anything other than a judicial capacity or without jurisdiction, when they issued warrants for her arrest, arraigned her, and in Justice Meisel's case, conducted a traffic trial on her two traffic charges.
There is no dispute that the speeding tickets were issued in the Village of Walden, the geographical area over which Justice Meisel presides. Plaintiff lives, and allegedly resisted arrest, within the Town of Montgomery, the geographical area over which Justice Kelso presides. By statute, town courts, like the ones over which Justices Meisel and Kelso preside, are part of the criminal court system of New York state. N.Y. CRIM. PROC. L. § 10.10 (McKinney 1996). A town court has "preliminary jurisdiction of all offenses subject to divestiture thereof in any particular case by the superior courts and their grand juries." Id. at § 10.30(2). Such courts also have exclusive trial jurisdiction over petty offenses, with exceptions not relevant here, and trial jurisdiction over misdemeanors which is concurrent with that of superior courts. Id. at § 10.30(1).
Based upon Officer Sutcliffe's supporting deposition and simplified traffic information, Justice Meisel, as Town Justice of the Village of Walden, was within his jurisdiction to issue a warrant for plaintiff's arrest when she failed to appear to answer the tickets. New York Criminal Procedure laws provide:
when a criminal action has been commenced in a local criminal court by the filing therewith of an accusatory instrument, other than a simplified traffic information, against a defendant who has not been arraigned upon such accusatory instrument and has not come under the control of the court with respect thereto, such court may, if such accusatory instrument is sufficient on its face, issue a warrant for such defendant's arrest.