The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge:
Pro se*fn1 Plaintiff William Jones is currently incarcerated at Rikers Island for criminal possession of a weapon in the second degree in violation of New York Penal Law ("N.Y.P.L.") § 265.03. Plaintiff brings the instant action pursuant to 28 U.S.C. § 2403 challenging the constitutionality of N.Y.P.L. § 265.03. Specifically, Plaintiff alleges that N.Y.P.L. § 265.03 requires that a weapon be recovered, but in his case "there was never any weapon(s) recovered. Therefore, [he is] challenging said charges; as a Constitutional basis. To verify, demonstrate and indicate my innocence." (Compl. at 2.) The Court grants plaintiff's request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 for purposes of this Order. However, for the reasons set forth below, this action is dismissed.
Under 28 U.S.C. § 1915A, a district court "shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." Upon review, a district court shall dismiss a prisoner complaint sua sponte if the complaint "(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A (b).
In general, a district court may not enjoin an ongoing state prosecution, regardless of whether the law under which the plaintiff was being prosecuted is constitutional. Younger v. Harris, 401 U.S. 37, 53-54 (1971). The Second Circuit has held that, unless the plaintiff can show extraordinary circumstances to warrant intervention in the ongoing proceeding, "Younger abstention is appropriate when: 1) there is an ongoing state proceeding; 2) an important state interest is implicated; and 3) the plaintiff has an avenue open for review of constitutional claims in the state court." Hansel v. Town Court for the Town of Springfield, N.Y., 56 F. 3d 391, 393 (2d Cir. 1995).
Here, the criminal case against plaintiff is still pending.*fn2
Moreover, New York has an important state interest in
enforcing its criminal laws, and Plaintiff is free to raise his
constitutional claims in the pending criminal proceedings. See id. at
393-94("it is axiomatic that a state's interest in the administration
of criminal justice within its borders is an important one" and
because the plaintiff "is free to raise his constitutional claims
before a legally trained judge . . . after conviction on direct
appeal, [thus, the plaintiff] can assert no bar to having his
constitutional argument heard before the state courts") (citations
omitted); see also Schlagler v. Phillips, 166 F. 3d 439, 442-44 (2d
Cir. 1999) (Younger abstention applied to dismiss complaint alleging
violation of criminal defendant's constitutional rights). Plaintiff
fails to allege any facts that would bring his case within any
exception for extraordinary circumstances. Thus, plaintiff's
constitutional claims regarding his pending criminal case must be
dismissed. See Hansel, 56
F. 3d at 393.
Accordingly, this action is dismissed pursuant to 28 U.S.C. § 1915A. Because the Court did not consider whether the state law is constitutional, the Court declines to certify this question to the Attorney General of the State of New York pursuant to 28 U.S.C. § 2403. See Johnson v. Artuz, 182 F. 3d 900, at *1 (2d Cir. 1999); Romaine v. Rawson, 2004 WL 1013316, at *2 n.1 (N.D.N.Y. May 6, 2004). The court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and, therefore, in forma pauperis status is denied for the purpose of any appeal. Coppedge v. United States, 369 U.S. 438 (1962).
DORA L. IRIZARRY United States ...