The opinion of the court was delivered by: DENISE COTE, District Judge
MEMORANDUM OPINION AND ORDER
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.
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As a result of his arrest and indictment, Phillips' parole was revoked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
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
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.
For the foregoing reasons, the motion of defendant Balestriere to
dismiss is granted.