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United States District Court, S.D. New York

March 16, 2004.

VICTOR PHILLIPS, Plaintiff, -v-, JOSEPH EPPOLITO, Detective #00295; JOHN DOE, Undercover Officer #6003; NEW YORK CITY POLICE DEPARTMENT; and JOHN BALESTRIERE, Defendants

The opinion of the court was delivered by: DENISE COTE, District Judge


On July 22, 2002, pro se plaintiff Victor Phillips ("Phillips") commenced this action. Phillips filed an amended complaint on September 3, 2002, and a second amended complaint ("the Complaint") on June 6, 2003. Phillips asserts claims of false arrest, harassment, malicious prosecution and abuse, apparently in violation of Title 42, United States Code, Section 1983 ("Section 1983"), against New York City police officers and former Assistant District Attorney John Balestriere ("Balestriere"). Balestriere has filed a motion to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6), Fed.R. Civ. Page 2 P., for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. Phillips, whose opposition to the motion was due December 19, 2003, has not opposed this motion. For the reasons that follow, Balestriere's motion is granted.


  The following facts are as alleged by Phillips in the Complaint. Phillips was arrested on drug charges on April 24, 2001. At the arraignment on April 25, 2001, Phillips notified Balestriere, an assistant district attorney, that Phillips wished to testify before the Grand Jury. Phillips asserts that Balestriere deliberately disregarded this request and that Phillips was indicted for Criminal Sale of a Controlled Substance in the Third Degree without being given an opportunity to testify before the Grand Jury. Approximately six months later, on October 31, 2001, the indictment was dismissed.

  As a result of his arrest and indictment, Phillips' parole was revoked and he was incarcerated for fifteen months. While incarcerated, Phillips was exposed to tuberculosis and had to take medication for nine months. Phillips seeks compensation for physical and emotional distress.


  The defendant moves to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6), Fed.R.Civ.P. When considering a motion to dismiss, a court must take all facts alleged in the Page 3 complaint as true and draw all reasonable inferences in favor of plaintiff. Securities Investor Protection Corp. v. BDO Seidman. LLP, 222 F.3d 63, 68 (2d Cir. 2000); Jaghory v. New York State Department of Education, 131 F.3d 326, 329 (2d Cir. 1997). "Dismissal is inappropriate unless it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him or him to relief." Raila v. United States, 355 F.3d 118, 119 (2d Cir. 2004); Securities Investor Protection Corp., LLP, 222 F.3d at 68. Where, as here, a plaintiff is proceeding pro se, the court has an obligation to "construe [the] pleadings broadly, and interpret them to raise the strongest arguments they suggest." Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000)(citation omitted); see also Cucco. v. Moritsuqu 222 F.3d 99, 112 (2d Cir. 2000).

  In order to state a claim under Secton 1983, a plaintiff must allege that he was injured by "either a state actor or a private party acting under color of state law, " and that such conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States. Ciambriello v. County of Nassau, 292 F.3d 307, 323 (2d Cir. 2002) (citation omitted); Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993). Suits brought under Secton 1983 may be brought against a public official in either an individual capacity or in an official capacity. Frank v. Relin, 1 F.3d 1317, 1325 (2d Cir. 1993). Typically, the course of proceedings Page 4 will indicate the nature of the liability sought. Id. at 1326. Since Phillips' suit is for damages, it is construed as a suit against Balestriere acting in his individual capacity.*fn1

  "The doctrine of absolute prosecutorial immunity creates a formidable obstacle for a plaintiff seeking to maintain a civil rights action against a district attorney." Pinaud v. County of Suffolk. 52 F.3d 1139, 1147 (2d Cir. 1995). "[P]rosecutors are absolutely immune from liability under § 1983 for their conduct in `initiating a prosecution and in presenting the State's case,' insofar as that conduct is `intimately associated with the judicial phase of the criminal process.'" Id. (citing Burns v. Reed, 500 U.S. 478, 486 (1991)); see also Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976); Bernard v. County of Suffolk, 356 F.3d 495, 502 (2d Cir. 2004). The Second Circuit, "ha[s] consistently stated that prosecutors are immune from § 1983 liability for their conduct before a grand jury." Hill v. City of New York, 45 F.3d 653, 661 (2d Cir. 1995); see also Burns, 500 U.S. at 490 n.6; Powers v. Coe, 728 F.2d 97, 104 (2d Cir. 1984).

  The Complaint asserts that Balestriere failed to permit Phillips to testify in front of the Grand Jury. The act of failing to permit Phillips to testify before a Grand Jury falls within the scope of activities protected by the doctrine of absolute immunity. Therefore, the claim of malicious prosecution against Balestriere must be dismissed. Page 5


  For the foregoing reasons, the motion of defendant Balestriere to dismiss is granted.


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