United States District Court, S.D. New York
MEMORANDUM AND ORDER
J. NATHAN, District Judge:
Biba Kajtazi, currently incarcerated in the Metropolitan
Correctional Center in Manhattan, is a defendant in a pending
criminal matter before Judge Carter, United States v.
Demaj et al., 16-cr-289, in which he is charged with one
count of conspiracy to distribute cocaine in violation of 21
U.S.C. §§ 841(b)(1)(A) & 846. See Dkt.
No. 1 ("Complaint" or "Comp.") ¶ 8;
United States v. Demaj et al., 16-cr-289, Dkt. No 5
(Indictment) ¶¶ 1-3. Kajtazi, proceeding pro
se, initiated this civil action on December 6, 2016,
naming as Defendants: Drew Johnson-Skinner, the Assistant
United States Attorney representing the Government in the
Demaj matter; Christopher Kaley, an agent of the
Department of Homeland Security and purported potential
witness for the Government in that matter; Preet Bharara,
United States Attorney for the Southern District of New York;
and the United States Court of Appeals for the Second
Circuit. See generally Comp. Kajtazi alleges
principally that Defendants are subjecting him to malicious
prosecution, that Johnson-Skinner is actively pursuing
Kajtazi's conviction in the Demaj matter despite
knowing that he is "totally innocent" and
attempting to "coerce" him into accepting a
"preposterous" plea agreement, and that Kaley is
"poised" to offer false testimony at trial.
Id. According the pro se Complaint the
requisite liberal construction, Kajtazi appears to assert
claims under Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971) for
constitutional torts, as well as claims under the Racketeer
Influenced and Corrupt Organizations Act ("RICO"),
18 U.S.C. § 1961 et seq. - a statute that the
Complaint repeatedly invokes by name. He seeks monetary
damages, declaratory relief, and an injunction precluding his
further criminal prosecution, and requests that the Court
convene a grand jury "to investigate the crimes
complained of in his pleading. Compl. at 12-13.
Defendant has yet responded to Kajtazi's Complaint.
Nevertheless, the Court will dismiss the Complaint sua
sponte for the reasons set forth below.
have both statutory and inherent authority to sua
sponte dismiss frivolous suits." Greathouse v.
JHS Sec. Inc., 784 F.3d 105, 119 (2d Cir. 2015) (citing
Fitzgerald v. First East Seventh Street Tenants
Corp., 221 F.3d 362, 364 (2d Cir. 2000) ("[W]e hold
that district courts may dismiss a frivolous complaint
sua sponte even when the plaintiff has paid the
required filing fee ....")). "Frivolous suits are
those that lack 'an arguable basis either in law or in
fact.'" Greathouse, 784 F.3d at 120
(quoting Denton v. Hernandez, 504 U.S. 25, 31
lawsuit lacks any arguable legal basis. First,
"[a]bsolute immunity bars a civil suit against a
prosecutor for advocatory conduct that is 'intimately
associated with the judicial phrase of the criminal
process.'" Giraldo v. Kessler, 694 F.3d
161, 165 (2d Cir. 2012) (quoting Imbler v. Pachtman,
424 U.S. 409, 430 (1976)). "This immunity attaches to
conduct in court, as well as conduct preliminary to the
initiation of a prosecution and actions apart from the
courtroom." Id. (internal quotation marks
omitted); see also at Rudaj v. Treanor, 1
l-cv-7098, 2011 WL 13128215, at *2 (E.D.N.Y. Dec. 7, 2011)
("[P]rosecutors are absolutely immune from suits for
acts which may be administrative obligations but are directly
connected with the conduct of a trial.") (internal
quotation marks omitted) (citing Van de Kamp v.
Goldstein, 555 U.S. 335, 344 (2009)). Notably, "the
initiation and pursuit of a criminal prosecution are
quintessential prosecutorial functions." Shmueli v.
City of N.Y., 424 F.3d 231, 237 (2d Cir. 2005) (citing
Imbler, 424 U.S. at 430)). As long as the prosecutor
acts with "at least a colorable claim of
authority," he "is shielded from liability for
damages for commencing and pursuing the prosecution,"
regardless "of any allegations that his actions were
undertaken with an improper state of mind." Id.
at 237; see also Bernard v. Cty. of Suffolk, 356
F.3d 495, 502 (2d Cir. 2004) (prosecutor defendants'
"motivation" in deciding to prosecute plaintiffs
and in their "conduct before the grand jury" was
"irrelevant to the applicability of absolute
immunity"). Accordingly, prosecutors acting within their
jurisdiction have been deemed immune from civil suits for
damages even when they have allegedly pursued prosecutions
for "purposes of retaliation" or "purely
political reasons," "knowing[ly] use[d] perjured
testimony," "deliberately] with[eld] ...
exculpatory information," Shmueli, 424 F.3d at
237 (internal quotation marks and citations omitted), and
engaged in purported "conspiracies]" organized
outside of the courtroom to "violate [a defendant's]
civil rights and to imprison him unlawfully," Pinaud
v. Cty. of Suffolk, 52F.3d 1139, 1148-49 (2d Cir. 1995).
claims against Defendants Johnson and Bharara "derive
entirely from the initiation and pursuit of [his]
prosecution," and, as such, are "foreclosed by
absolute prosecutorial immunity." Deraffelle v. City
of NewRochelle, 15-CV-282, 2016 WL 1274590, at *11-12
(S.D.N.Y. Mar. 30, 2016). Specifically, these claims are
premised on Johnson's alleged conduct in seeking
Kajtazi's indictment before a grand jury and prosecuting
the Government's case against him notwithstanding his
purported knowledge of Kajtazi's innocence, and on
Johnson's alleged "threat" to file a prior
conviction information under 21 U.S.C. § 851 if Kajtazi
declined to accept a plea agreement. Comp. ¶¶ 8-26.
Kajtazi also appears to allege that Johnson withheld - or
continues to withhold - exculpatory evidence and intends to
offer falsified or "coerced" evidence at trial.
Id. ¶¶ 8-26, 29-32. Even accepting these
allegations as true, they implicate activities that are
categorically "quintessential prosecutorial
functions" and therefore cannot give rise to civil
liability for damages. See, e.g., Shmueli, 424 F.3d
at 237; see also Imbler, 424 U.S. at 430-31 &
n.34 (absolute immunity precludes suit for damages under
Section 1983 based on "willful use ... of perjured
testimony" or "willful suppression ... of
exculpatory information"); Rudaj, 2011 WL
13128215, at *2 (dismissing claims against Assistant United
States Attorney and United States Attorney Bharara premised
on alleged withholding of exculpatory evidence).
extent that prosecutorial immunity does not cover
Kajtazi's request for injunctive relief, the Court notes
that "federal courts have applied the abstention
doctrine articulated in Younger v. Harris ... when
asked to enjoin or dismiss enforcement of federal criminal
proceedings." Ali v. United States, 12-cv-816A,
2012 WL 4103867, at *2 (W.D.N.Y. Sept. 14, 2012) (collecting
cases); see also Deaver v. Seymour, 822 F.2d 66,
69-71 (D.C. Cir. 1987) (observing that "in no case that
we have been able to discover has a federal court enjoined a
federal prosecutor's investigation or presentment of an
indictment" and holding that "[prospective
defendants cannot, by bringing ancillary equitable
proceedings, circumvent federal criminal procedure");
Campbell v. Medalie, 71 F.2d 671, 672-73 (2d Cir.
1934) (affirming dismissal of application to enjoin federal
prosecution). Because "[t]here are adequate remedies
available to [Kajtazi] within the underlying criminal
proceedings to address the issues raised" in his
Complaint, the application for an injunction is properly
dismissed. Ali, 2012 WL 4103867, at *2; see also
Campbell, 71 F.2d at 672 (dismissing application to
enjoin prosecution because applicant's "remedy at
law is still adequate and sufficient").
respect to the claim against Defendant Kaley, Kajtazi alleges
only that Kaley "appears to be poised" to offer
false testimony at trial and sets forth examples of the sorts
of statements that Kaley "might" make about Kajtazi
in court. Comp. ¶¶ 27-28. As a trial witness,
however, Kaley would enjoy absolute testimonial immunity.
See, e.g., Cleavinger v. Saxner, 474 U.S. 193, 200
(1985) (recognizing that "witnesses, including police
officers, who testify in judicial proceedings" are
'"integral parts of the judicial process' and,
accordingly, are shielded by absolute immunity")
(quoting Briscoe v. LaHue, 460 U.S. 325, 335
(1983)); see also Deraffele, 2016 WL 1274590, at
*12-13 (dismissing Section 1983 claims premised on
defendants' allegedly falsified testimony at plaintiffs
trial). That would be true even if his testimony would
perjurious. See Briscoe, 460 U.S. at 335-36. In any
event, because it is clear from the face of the Complaint
that the claims against Kaley are premised entirely on
anticipated future conduct, they are unripe for adjudication
at this time and must be dismissed for want of jurisdiction.
See, e.g., City of New Rochelle v. Town of
Mamaroneck, 111 F. Supp. 2d 353, 359-60 (S.D.N.Y. 2000)
("A court is precluded from entertaining claims based on
'contingent future events' that may not occur as
anticipated or at all.") (quoting Thomas v. City of
N. Y., 143 F.3d 31, 34 (2d Cir. 1998)).
claims against the Court of Appeals must also be dismissed.
The real party in interest to those claims is the United
States. "Well-established principles of sovereign
immunity," however, "bar suit against the United
States unless it consents to be sued, the existence of such
consent being a prerequisite for jurisdiction."
Pietrangelo v. U.S. Dist. Ct. Vermont, 223 Fed.
App'x 20, 21-22 (2d Cir. 2007) (Summary Order), cert,
denied, 552 U.S. 823 (2007). Such consent "must be
unequivocally expressed in statutory text, and cannot simply
be implied." Adeleke v. United States, 355 F.3d
144, 150 (2d Cir. 2004) (internal quotation marks omitted).
Plaintiff does not allege that any "express waiver of
sovereign immunity exists" for his claims, and the Court
is aware of none. Accordingly, the Court of Appeals is
shielded by sovereign immunity. See, e.g.,
Pietrangelo, 223 Fed. App'x at 22 (dismissing claims
against district court arising out of alleged constitutional
violations); Hurt v. U.S. Dist. Court Judges, 258
Fed. App'x 341, 341 (D.C. Cir. 2007) (Summary Order)
(district court defendants shielded from constitutional tort
claims by sovereign immunity).
Kajtazi lacks standing to request that the Court convene a
grand jury. As the Supreme Court has long recognized, "a
private citizen lacks a judicially cognizable interest in the
prosecution or nonprosecution of another." Linda
R.S. v. Richard D., 410 U.S. 614, 619 (1973)
foregoing reasons, Kajtazi's claims are hereby DISMISSED.
The Clerk of Court is ...