ORDER OF DISMISSAL
The plaintiff, David S. Osuch ("Osuch"), an inmate currently confinedat the Garner Correctional Institution in Newtown, Connecticut, bringsthis civil rights action pro se and in forma pauperispursuant to 28 U.S.C. § 1915. He names as defendants ConnecticutState Trooper Gregory and Assistant Public Defender Joseph E. Lopez.Osuch alleges that defendant Gregory arrested him without probable causebecause the arrest warrant was not signed. In addition, he alleges thedefendant Lopez afforded him ineffective assistance of counsel andconspired with the prosecutor to secure his guilty plea. For the reasonsthat follow, the complaint will be dismissed without prejudice.
I. Standard of Review
Osuch has met the requirements of 28 U.S.C. § 1915(a) and has beengranted leave to proceed in forma pauperis in thisPage 2action. When the court grants in forma pauperis status,section 1915 requires the court to conduct an initial screening of thecomplaint to ensure that the case goes forward only if it meets certainrequirements. "[T]he court shall dismiss the case at any time if thecourt determines that . . . the action . . . is frivolous ormalicious; fails to state a claim on which relief may be granted;or . . . seeks monetary relief against a defendant who is immune fromsuch relief." 28 U.S.C. § 1915 (e)(2)(B)(i) — (iii).
An action is "frivolous" when either: (1) "the `factual contentions are clearly baseless,' such as when allegations are the product of delusion or fantasy;" or (2) "the claim is `based on an indisputably meritless legal theory.'" Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam) (quoting Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 1833, 104 L.Ed.2d 338 (1989). A claim is based on an "indisputably meritless legal theory" when either the claim lacks an arguable basis in law, Benitez v. Wolff, 907 F.2d 1293, 1295 (2d Cir. 1990) (per curiam), or a dispositive defense clearly exists on the face of the complaint. See Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995).Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437(2d Cir. 1998). The court construes pro se complaintsliberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972).Thus, "when an in forma pauperis plaintiff raises a cognizableclaim, his complaint may not be dismissed sua sponte for frivolousnessPage 3under § 1915(e)(2)(B)(i) even if the complaint fails to `fleshout all the required details.'" Livingston, 141 F.3d at 437(quoting Benitez, 907 F.2d at 1295). The court exercisescaution in dismissing a case under section 1915(e) because a claim thatthe court perceives as likely to be unsuccessful is not necessarilyfrivolous. See Neitzke v. Williams, 490 U.S. 319, 329 (1989).
A district court must also dismiss a complaint if it fails to state aclaim upon which relief may be granted. See28 U.S.C. § 19159e)(2)(B)(ii) ("court shall dismiss the case at anytime if the court determines that . . . (B) the action or appeal . . .(ii) fails to state a claim upon which relief may be granted"); Cruz v.Gomez, 202 F.3d 593, 596 (2d Cir. 2000) ("Prison Litigation ReformAct . . . which redesignated § 1915(d) as § 1915(e) provided that dismissal for failure to state a claim is mandatory"). Inreviewing the complaint, the court "accept [s] as true all factualallegations in the complaint" and draws inferences from these allegationsin the light most favorable to the plaintiff. Cruz, 202 F.3d at596 (citing King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999)).Dismissal of the complaint under 28 U.S.C. § 1915 (e)(2)(B) (ii), isonly appropriate if "`it appears beyond doubt that the plaintiff canprove no set of facts in support of his claimPage 4which would entitle him to relief.'" Id. at 597 (quotingConley v. Gibson, 355 U.S. 41, 45-46 (1957)). In addition,"unless the court can rule out any possibility, however unlikely it mightbe, that an amended complaint would succeed in stating a claim," thecourt should permit "a pro se plaintiff who is proceedingin forma pauperis" to file an amended complaint that states aclaim upon which relief may be granted. Gomez v. USAA FederalSavings Bank, 171 F.3d 794, 796 (2d Cir. 1999).
A district court is also required to dismiss a complaint if theplaintiff seeks monetary damages from a defendant who is immune fromsuit. See 28 U.S.C. § 1915(e)(2)(B)(iii); Spencer v.Doe, 139 F.3d 107, 111 (2d Cir. 1998) (affirming dismissal pursuantto § 1915(e)(2)(B) (iii) of official capacity claims in § 1983action because "the Eleventh Amendment immunizes state officials sued fordamages in their official capacity").
In order to state a claim for relief under section 1983 of the CivilRights Act, Osuch must satisfy a two-part test. First, he must allegefacts demonstrating that the defendants are persons acting under color ofstate law. Second, he must allege facts demonstrating that he has beendeprived of aPage 5constitutionally or federally protected right. See Lugar v.Edmondson Oil Co., 457 U.S. 922, 930 (1982); Washington v.James, 782 F.2d 1134, 1138 (2d Cir. 1986).
A. Injunctive Relief
Osuch requests injunctive relief from the defendants in the form oforders that both defendants be suspended without pay while disciplinarycharges against them are resolved, both defendants be investigated by astate grand jury for obstruction of justice and conspiracy, defendantLopez be demoted, his guilty plea be withdrawn, his conviction beexpunged and both defendants be prohibited from transferring assets orinfluencing correctional staff to transfer him without his consent.
1. Requests Relating to Osuch's Conviction
A claim for injunctive relief challenging a conviction is notcognizable in a civil rights action. "A state prisoner may not bring acivil rights action in federal court under [section] 1983 to challengeeither the validity of his conviction or the fact or duration of hisconfinement. Those challenges may be made only by petition for habeascorpus." Mack v. Varelas, 835 F.2d 995, 998 (2d Cir. 1987)(citing Preiser v. Rodriguez, 411 U.S. 475, 489-90 (1973)).Thus, if Osuch seeks to withdraw his plea or have his convictionPage 6expunged, he must file a petition for a writ of habeas corpus,
The court is unable to construe the complaint as a petition for a writof habeas corpus filed pursuant to 28 U.S.C. § 2254. A prerequisiteto habeas corpus relief is the exhaustion of all available stateremedies. See O'Sullivan v, Boerckel, 526 U.S. 838, 842 (1999);Rose v. Lundy, 455 U.S. 509, 510 (1982); Dave v. AttorneyGeneral of the State of New York, 696 F.2d 186, 190 (2d Cir. 1982),cert. denied, 464 U.S. 1048 (1982);28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement is notjurisdictional; rather, it is a matter of federal-state comity. SeeWilwording v. Swenson, 404 U.S. 249, 250 (1971) (per curiam). Theexhaustion doctrine is designed not to frustrate relief in the federalcourts, but rather to give the state court an opportunity to correct anyerrors which may have crept into the state criminal process. See id."Because the exhaustion doctrine is designed to give the state courts afull and fair opportunity to resolve federal constitutional claims beforethose claims are presented to the federal courts,. . . stateprisoners must give the state courts one full opportunity to resolve anyconstitutional issues by invoking one complete round of the State'sestablished appellate review process." See O'Sullivan, 526 U.S.at 845.Page 7
The Second Circuit requires the district court to conduct a two-partinquiry. First, the petitioner must have raised before an appropriatestate court any claim that he asserts in a federal habeas petition.Second, he must have "utilized all available mechanisms to secureappellate review of the denial of that claim." Lloyd v. Walker,771 F. Supp. 570, 573 (E.D.N.Y. 1991) (citing Wilson v. Harris,595 F.2d 101, 102 (2d Cir. 1979)). "To fulfill the exhaustionrequirement, a petitioner must have presented the substance of hisfederal claims to the highest court of the pertinent state." Bossettv. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied,514 U.S. 1054 (1995) (internal citations and quotation marks omitted).See also Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990)("[T]he exhaustion requirement mandates that federal claims be presentedto the highest court of the pertinent state before a federal court mayconsider the petition."); Grey v. Hoke, 933 F.2d 117, 119 (2dCir. 1991) (same).
Osuch does not allege facts in his complaint suggesting that he hasexhausted his state court remedies before commencing this action. Thus,the court cannot construe this complaint as a petition for a writ ofhabeas corpus.
2. Requests Relating to Charges Against DefendantsPage 8
Osuch asks this court to order the demotion of defendant Lopez, thesuspension of both defendants and a state grand jury investigation.
"Generally, to obtain a permanent injunction a party must show theabsence of an adequate remedy at law and irreparable harm if the reliefis not granted." New York State Nat'l Org. for Women v. Terry,886 F.2d 1339, 1362 (2d Cir. 1989) (citing Rondeau v. Mosinee PaperCo., 422 U.S. 49, 57 (1975)). To demonstrate irreparable harm,plaintiff must show an "`injury that is neither remote nor speculative,but actual and imminent and that cannot be remedied by an award ofmonetary damages.'" Forest City Daly Housing, Inc. v. Town of NorthHempstead, 175 F.3d 144, 153 (2d Cir. 1999) (quoting Rodriguezv. DeBuono, 162 F.3d 56, 61 (2d Cir. 1998)). In addition, a federalcourt should grant injunctive relief against a state or municipalofficial "only in situations of most compelling necessity." Vorbeckv. McNeal, 407 F. Supp. 733, 739 (E.D. Mo.), aff'd,426 U.S. 943 (1976).
To the extent that Osuch seeks the criminal prosecution of eitherdefendant, his claim is not cognizable. An alleged victim of a crime doesnot have a right to have the alleged perpetrator investigated orcriminally prosecuted. See S. v. D., 410 U.S. 614, 619 (1973)("a private citizen lacks aPage 9judicially cognizable interest in the prosecution or nonprosecutionof another"); Sattler v. Johnson, 857 F.2d 224, 227 (4th Cir.1988) (neither member of public at large nor victim of a crime hasconstitutional right to have defendant prosecuted).
Regarding other disciplinary action, research has revealed no federalconstitutional right to have disciplinary proceedings instituted againstany defendant. Because Osuch has no right to the requested relief, thecourt concludes that there is no compelling necessity for thisinjunction. In addition, even if these claims were cognizable, Osuch hasnot demonstrated that an award of money damages would not have beensufficient to address his injuries. Thus, all claims seeking injunctiverelief against the defendants in the form of disciplinary actions orcriminal investigations are dismissed.
3. Request Relating to Transfer
Osuch asks the court to order the defendants not to exert any influenceover correctional staff to have him transferred to any other correctionalfacility. Osuch has no constitutionally protected right to be confined inany particular correctional facility. See Olim v. Wakinekona,Page 10461 U.S. 238, 248 (1983) (inmates have no right to be confined in aparticular state or a particular prison within a given state);Meachum v. Fano, 427 U.S. 215, 225 (1976) (inmate has noprotected interest in avoiding transfer to prison with more severe rulesor more disagreeable conditions). Thus, this request also is denied.
4. Request Regarding Defendants' Assets
Finally, Osuch asks the court to order the defendants not to transferany assets during the pendency of this action. Osuch has alleged no factsuggesting that either defendant has taken steps to hide or transferassets. Thus, this request is based only on Osuch's speculation aboutpossible events.
"[I]nterim injunctive relief is an `extraordinary and drastic remedywhich should not be routinely granted.'" Buffalo Forge Co. v.Ampco-Pittsburgh Corp., 638 F.2d 568, 569 (2d Cir. 1981) (quotingMedical Society of New York v. Toia, 560 F.2d 535, 538 (2d Cir.1977)). In this circuit the standard for injunctive relief is wellestablished. To warrant preliminary injunctive relief, the moving party"must demonstrate (1) that it will be irreparably harmed in the absenceof an injunction, and (2) either (a) a likelihood of success on themerits or (b) sufficiently serious questions going to the merits of thecase to make them a fair ground forPage 11litigation, and a balance of hardships tipping decidedly in itsfavor." Brewer v. West Irondequoit Central Sch. Dist.,212 F.3d 738, 743-44 (2d Cir. 2000).
Speculation does not satisfy the requirement that Osuch demonstratethat he will suffer irreparable harm should the relief be denied.Accordingly, this request for relief is denied.
B. State Trooper Gregory
Osuch alleges that he was arrested without probable cause because thecopy of the arrest warrant affidavit he received was not signed by ajudge. Osuch later pled guilty to the charges of assaulting correctionalofficers.
The Supreme Court has held that: [A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.Tollett v. Henderson, 411 U.S. 258, 267 (1973). Thus, ifa criminal defendant pleads guilty to an offense, he may not later raisea Fourth Amendment challenge to any events preceding the plea. SeeUnited States v. Gregg, No. 01 CR, 501(LAP), 2002 WL 1808235, at *2(S.D.N.Y. Aug. 6, 2002).Page 12Accordingly, courts have recognized that a conviction, either aftertrial or pursuant to a guilty plea, demonstrates probable cause for thearrest and bars a false arrest claim. See United States v.Arango, 966 F.2d 64, 66 (2d Cir. 1992) (holding that guilty pleaconstituted waiver of right to object to constitutionality of search ofvehicle); Cameron v. Fogarty, 806 F.2d 380, 388-89 (2d Cir.1986) (concluding that "where law enforcement officers have made anarrest, the resulting conviction is a defense to a § 1983 actionasserting that the arrest was made without probable cause);Perlleshi v. County of Westchester, No. 98 CIV. 6927(CM), 2000WL 554294, at *3-*4 (S.D.N.Y. Apr. 24, 2000) (holding that plaintiff'sguilty plea defeated his claim that defendants lacked probable cause toarrest and prosecute him); Papeskov v. Brown, No. 97 Civ. 5351,1998 WL 299892, at *5 (S.D.N.Y. June 8, 1998) (holding that guilty pleato lesser charge barred false arrest claim) (collecting cases).
Osuch alleges that he pled guilty to the assault charge. Thus, hisfalse arrest claim is barred and all claims against defendant Gregory aredismissed pursuant to 28 U.S.C. § 1915 (e)(2)(B) (ii). Osuch alsoalleges that his guilty plea was invalid because he was affordedineffective assistance of counsel. As discussed below, the court cannotconsider thatPage 13claim at this time.
C. Public Defender Lopez
The court next considers Osuch's claims against defendant Lopez, hispublic defender.
A defendant acts under color of state law when he exercises "some rightor privilege created by the State. or by a person for whom the State isresponsible," and is "a person who may fairly be said to be a stateactor." See Lugar, 457 U.S. at 937. Generally, a publicemployee acts under color of state law when he acts in his officialcapacity or exercises his responsibilities pursuant to state law.See West v. Atkins, 487 U.S. 42, 50 (1988). The Supreme Courthas recognized an exception to the general rule for public defenderswhile they are performing the traditional function of counsel forcriminal defendants. See Polk County v. Dodson, 454 U.S. 312,317 (1981); Rodriquez v. Weprin, 116 F.3d 62, 65-66 (2d Cir.1997); Housand v. Heiman, 594 F.2d 923, 924-25 (2d Cir. 1979)."[W]hen representing an indigent defendant in a state criminalproceeding, the public defender does not act under color of state law forthe purposes of section 1983 because he `is not acting on behalf of theState; he is the State's adversary.'" West, 487 U.S. at 50(quoting Polk County, 454 U.S. at 323 n.13).Page 14
Osuch alleges that defendant Lopez, his public defender in a statecriminal matter, afforded him ineffective assistance in that he ignoredthe defective warrant application and the fact that Osuch was takingvarious medications for mental health problems at the time of the allegedassault and, instead, urged Osuch to plead guilty to the charge.
Representing a client at trial is part of the traditional function ofcounsel to a criminal defendant. Because public defenders do not actunder color of state law while defending a criminal action, these claimsagainst defendant Lopez are not cognizable under section 1983.
If a public defender conspires with a state official to deprive acriminal defendant of his constitutional rights, however, the publicdefender is deemed to have been acting under color of state law. SeeTower v. Glover, 467 U.S. 914, 920-22 (1984). Here, Osuch allegesthat defendant Lopez conspired with the prosecutor to deprive him of dueprocess.
The Second Circuit has held that to state a claim of conspiracy undersection 1983, the complaint must contain more than mere conclusoryallegations. See Gyadu v. Hartford Ins. Co., 197 F.3d 590, 591(2d Cir. 1999) (restating previous holding that vague, general orconclusory allegations ofPage 15conspiracy are insufficient to withstand motion to dismiss);Dwares v. City of New York, 985 F.2d 94, 99-100 (2d Cir. 1993;(citing cases). In this case, Osuch presumes that all of the allegeddeficiencies are attributable to the purported conspiracy. He fails toallege any facts showing that defendant Lopez and the prosecutor agreedto obtain his conviction. This assumption is insufficient to state acognizable claim for conspiracy.
Further, even if Osuch had stated a claim of conspiracy, the claimsagainst defendant Lopez should be dismissed. If Lopez were to prevail onhis claim for damages, the court would have to conclude that he wasafforded ineffective assistance of counsel. Thus, Osuch's convictionnecessarily would be called into question.
[I]n order to recover damages for [an] allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a [section] 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under [section] 1983. Thus, when a state prisoner seeks damages in a [section] 1983 suit, the districtPage 16 court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction has already been invalidated.
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (footnoteomitted). Osuch does not indicate whether he filed a direct appeal or astate habeas petition challenging his conviction. Because Osuch fails todemonstrate that his conviction has been invalidated, he fails to state aclaim cognizable under section 1983. Thus, the court concludes that anyamendment would be futile. The claims for damages against defendant Lopezare dismissed without prejudice pursuant to28 U.S.C. § 1915(e)(2)(B)(ii).
In addition, Osuch sees declaratory relief against defendant Lopez. Heasks the court to state that defendant Lopez violated his constitutionalrights and afforded him ineffective assistance of counsel, that is, thathe has proven his claims against defendant Lopez. The court has concludedthat Osuch's claims against defendant Lopez are not cognizable at thistime. Thus, his requests for declaratory relief are dismissed as well.
The complaint is DISMISSED without prejudice pursuant toPage 1728 U.S.C. § 1915(e)(2)(B)(ii). Osuch may refile his claimsafter his conviction has been called into question provided he can allegefacts to correct the deficiencies identified above. Any appeal from thisorder would not be taken in good faith. The Clerk is directed to closethis case.