Cano v. Kharkover

Background

Christopher Hiram Cano, who identifies as transgender, is incarcerated and proceeded without a lawyer. She sued the City of New York and correctional officials, as well as Assistant District Attorney Ilya Kharkover and New York City Department of Correction Commissioner Louis Molina, alleging violations of federal and state law.

Cano’s allegations focused in part on a December 16, 2021 order from New York Supreme Court, Bronx County. That order found that Cano posed a continuing, significant safety risk and directed the Department of Correction to impose restrictive conditions, including possible 24-hour lockdown, no contact with other incarcerated people, limits on visits, escorted movement, and other safety restrictions. While this federal case was pending, the state court vacated the lockdown order on September 8, 2023. Cano also was placed in protective custody and rehoused in September 2023.

Motion for Reconsideration

The court had previously dismissed Cano’s claims against Kharkover and Molina. The earlier dismissal of Kharkover was based on prosecutorial immunity, which generally protects prosecutors from damages claims based on actions within their prosecutorial duties and closely connected to the judicial phase of a criminal case. Cano did not contest Molina’s dismissal.

Cano sought reconsideration of Kharkover’s dismissal. She argued that she sought declaratory and injunctive relief rather than money damages and that Kharkover’s actions were not related to a prosecution or judicial proceeding. The court explained that reconsideration is an extraordinary remedy generally available only when the court overlooked controlling law or information that could change its decision.

The court rejected Cano’s arguments. It concluded that some requested relief—stopping enforcement of the lockdown order and obtaining alternative housing—had already been provided because the order had been vacated and Cano had been rehoused. Cano did not allege that Kharkover continued enforcing the vacated order or was returning her to her former housing.

The court also ruled that Cano lacked standing to seek criminal investigation or prosecution of Kharkover. Decisions to investigate or prosecute belong to prosecutors, not private litigants in federal court. The court further held that Cano had not plausibly alleged an ongoing violation of federal law that would support prospective relief. Her requests for declarations about past injuries, broad injunctions, and injunctions barring Kharkover from practicing law or remaining in public office were either based on past conduct or unsupported by allegations of a continuing violation.

Finally, the court rejected Cano’s allegations that Kharkover engaged in forum shopping, judge shopping, or perjury to obtain the lockdown order. The court found those allegations conclusory and held that Cano had not plausibly shown that Kharkover acted outside his prosecutorial duties. The motion for reconsideration was therefore denied, and the claims against Kharkover remained dismissed.

Defendants’ Motion to Dismiss

Defendants moved to dismiss the action, but Cano did not oppose that motion despite orders requiring a response. Cano later filed a request to supplement her complaint. The magistrate judge treated pages 5 through 13 of that filing as a supplemental complaint, making the original complaint and those pages the operative complaint.

Because the court had allowed Cano to supplement her complaint, it denied defendants’ motion to dismiss the original complaint without prejudice to renew. The court also denied as moot defendants’ request for permission to supplement their briefing. Defendants were directed to respond to the supplemented complaint by September 30, 2024, and the court stated that any renewed motion to dismiss should address each asserted claim.

Preliminary Injunctive Relief

Cano sought a temporary restraining order and preliminary injunction concerning her housing and confinement, as well as injunctions directed at Kharkover. A preliminary injunction is an order intended to provide temporary relief while a case is pending.

The court denied the request for preliminary injunctive relief. It rejected the requests directed at Kharkover for the reasons given in its reconsideration analysis. It also concluded that Cano appeared already to have received the relief concerning the lockdown and restrictive housing because the lockdown order had been vacated and she had been placed in protective custody. The court denied Cano’s request for an evidentiary hearing because there appeared to be no factual issues requiring a hearing.

The court also stated that a deposition under Federal Rule of Civil Procedure 27 was not appropriate because this action was neither a pre-suit proceeding nor a case pending appeal.

Request for Recusal

Cano asked Judge Rochon to recuse herself, asserting that the court favored defendants because it had allowed a motion concerning her status as a party unable to pay filing fees and had not immediately granted her requests for preliminary relief.

The court denied the recusal request. It found no facts that would cause a reasonable person, knowing all the facts, to question the judge’s impartiality. The court noted that defendants’ motion to revoke Cano’s fee-waiver status had itself been denied and that judicial rulings generally are not enough to establish judicial bias.

Disposition

The court denied Cano’s motion for reconsideration; denied without prejudice to renew defendants’ motion to dismiss; denied as moot defendants’ motion to supplement their briefing; denied Cano’s request for preliminary injunctive relief; and denied Cano’s request for recusal. The clerk was directed to close the motions pending at Docket Nos. 31, 40, and 52, and defendants were ordered to respond to the supplemented complaint by September 30, 2024.