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Posr v. City of New York

United States District Court, E.D. New York

April 4, 2015

POSR A. POSR, Plaintiff,


BRIAN M. COGAN, District Judge.

Plaintiff prose brings this action pursuant to 42 U.S.C. § 1983 for alleged violations of his constitutional rights, seeking injunctive relief and damages. Plaintiffs application to proceed in forma pauperis is granted pursuant to 28 U.S.C. § 1915. For the reasons set forth below, plaintiffs claims against the City of New York, Judge Donna M. Golia, and Anthony Pollina are dismissed sua sponte. His claims against defendant Police Inspector Pascale may proceed.


This case arises out of an incident on August 8, 2013, in which plaintiff was arrested on various charges under New York Penal Law.[1] However, the origins of this dispute appear to go much deeper and involve real property owned by one Kris Gounden in Howard Beach, Queens County. Apparently, according to the complaint, Gounden and various New York City agencies and officials dispute the existence of an easement across Gounden's property and the application of several provisions of New York Highway Law, Canal Law, and Eminent Domain Procedure Law. Plaintiff alleges that he, as Gounden's agent, "was given the perpetual authority to guard Gounden's property against trespass since long before 2013 Aug 08."

Plaintiff's allegations are as follows: On August 8, 2013, plaintiff was arrested on the order of Police Inspector Pascale, of the NYPD's 106th Precinct. A Con Edison employee, Anthony Pollina, had "claimed that he was prevented from proceeding to an electrical emergency by plaintiff preventing defendant Pollina from trespassing [on] Gounden's land." Posr was charged with Unlawful Imprisonment, Obstructing Governmental Administration, and Disorderly Conduct. After his arrest, plaintiff was held "for a period of about four days" until he made bail. He appeared before Judge Donna M. Golia of the Queens Criminal Court on or about August 14, 2013 and "orally informed defendant Golia that, pursuant to CLP 170.25, that plaintiff wanted defendant Golia to set a date by which plaintiff was to file a motion to Superior Court to be prosecuted by indictment on Pascale's arrest." Judge Golia refused to accept the motion and "became incompetent to dismiss the case against plaintiff."

Plaintiff subsequently attempted to remove that criminal proceeding to federal court, by filing a habeas corpus petition in this court that raised essentially the same issues that are advanced in the instant complaint. See Posr v. People of the State of New York, No. 13-cv-5143, 2014 WL 3734513 (E.D.N.Y. July 25, 2014) (Irizarry, D.J.) (dismissing complaint for lack of subject-matter jurisdiction). Judge Golia dismissed the state criminal proceeding on October 17, 2013, on the People's motion "on the grounds of an interest injustice, " but plaintiff alleges that he "did not agree to a dismissal in the interest of justice dismissal."

The instant complaint seeks an injunction prohibiting the City of New York from arresting plaintiff in connection with the disputed property and declaratory relief regarding the jurisdiction and competency of New York State courts. Plaintiff also seeks damages for violations of his federal and state constitutional rights against defendants Pascale and Pollina. He seeks damages against Judge Golia for her "lack of... competence to exercise authority."


A. Standard of Review

I am mindful that "a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197 (2007) (internal quotation marks and citations omitted). If a liberal reading of the complaint "gives any indication that a valid claim might be stated, " a court must grant leave to amend. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).

However, even a pro se complaint must contain sufficient factual matter to state a claim to relief that is plausible on its face. Ashcroft v. Igbal, 556 U.S. 662, 129 S.Ct. 1937 (2009). Moreover, pursuant to the in forma pauperis statute, the court must dismiss a complaint sua sponte (in other words, on its own initiative) if it determines that the action is "(i) frivolous or malicious, (ii) fails to state a claim upon which relief may be granted, or (iii) seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(8).

B. Judicial Immunity

Judges have absolute immunity from suits for damages arising out of acts performed in their judicial capacities. Mireles v. Waco, 502 U.S. 9, 112 S.Ct. 286 (1991). Judicial immunity "is not overcome by allegations of bad faith or malice, " nor can a judge be deprived of immunity "because the action [s]he took was in error or was in excess of h[er] authority." Id. at 11, 13 (quotations and citations omitted). Judicial immunity may be overcome only if the court is alleged to have taken nonjudicial actions or judicial actions taken "in the complete absence of all jurisdiction." Id. at 11-12. Here, plaintiff challenges Judge Golia's "competency'' to preside over his criminal proceedings and contests the basis for the dismissal of the charges against him. Judge Golia was and is a judge of the Criminal Court of the City of New York, Queens County.[2] Putting aside his conclusory statements challenging her "competency, " plaintiff has not stated any facts that, if true, would suggest that Judge Golia ...

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