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Linder v. New York State Police

April 30, 2007

DAVID WILLIAM LINDER, PLAINTIFF,
v.
NEW YORK STATE POLICE; WAYNE BENNETT; LORI HOCHDANNER; STEVEN ANDERSON; MARK LESTER; JENNIFER LIMOGENS; ELIOT SPITZER; JUSTINE SHOEMAN, DEA; TIMOTHY JENKINS, DEA; LAURA TAYMAN, AUSA; CHARLES BURKE, COURT APPOINTED COUNSEL, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY DEFENDANTS.



The opinion of the court was delivered by: Lawrence E. Kahn, U.S. District Judge

DECISION and ORDER

I. Background

Plaintiff David William Linder has filed a Complaint under 42 U.S.C. 1983, naming 10 individual Defendants and the New York State Police, alleging violations of his rights in connection with his criminal trial in Federal District Court, Eastern District of Virginia. Complaint (Dkt. No. 1). Plaintiff, who is currently incarcerated at Terre Haute Federal Correctional Institution in Indiana, has also filed an application to proceed in forma pauperis.*fn1

Application (Dkt. No. 2).

II. Discussion

A. Plaintiff's Application to Proceed In Forma Pauperis

The Court finds that Plaintiff is financially eligible to commence this matter in forma pauperis. However, the Northern District of New York requires all inmates to sign a fully completed and properly certified in forma pauperis application and the authorization form issued by the Clerk's Office. See Rule 5.4(b) of the Local Rules of Practice of the Northern District ("L.R. 5.4(b)"). Plaintiff has not submitted an authorization form. Therefore, the Court hereby directs the Plaintiff to adhere to Local Rule 5.4(b) and submit either a signed authorization form or the full filing fee of $350.00.

B. The Complaint

Section 1915(e) of Title 28 of the United States Code directs that, when a plaintiff seeks to proceed in forma pauperis, "(2) . . . the court shall dismiss the case at any time if the court determines that . . . (B) the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). Thus, it is the court's responsibility to determine whether a plaintiff may properly maintain his complaint in this District before it permits him to proceed with his action in forma pauperis. See 28 U.S.C. § 1915(e)(2).*fn2

Plaintiff brings this action pursuant to 42 U.S.C. § 1983, which "provides a cause of action for 'the deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). See alsoMyers v. Wollowitz, No. 95-CV-0272, 1995 WL 236245, at *2 (N.D.N.Y. Apr. 10, 1995) (McAvoy, J.) (holding that "§ 1983 is the vehicle by which individuals may seek redress for alleged violations of their constitutional rights").

i. State Agency Immunity

Plaintiff has named "New York State Police" as a Defendant to this action. However, the New York State Police is an agency of the State and, as such, is entitled to sovereign immunity under the Eleventh Amendment to the United States Constitution. See Proctor v. Vadlamudi, 992 F. Supp. 156, 158-9 (N.D.N.Y. 1997) (Pooler, J.) (noting that state agencies are immune from suits brought under 42 U.S.C. § 1983). Accordingly, the claims against the New York State Police will be dismissed.

ii. Court Appointed Counsel

"It is well established that court-appointed attorneys performing a lawyer's traditional functions as counsel to defendants do not act under color of state law, and therefore are not subject to suit under ยง 1983." Rodriguez v. Weprin, 116 F.3d 62, 65-66 (2d Cir. 1997). Plaintiff has named Charles Burke, his court appointed counsel, as a Defendant in this ...


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