Kelsey v. Kessel

Background

Michael N. Kelsey, proceeding without a lawyer, sought prospective declaratory relief under 28 U.S.C. § 2201. He asked the court to declare unconstitutional the New York statutory scheme under which a New York State court issued an order of protection against him. The defendants named in the caption were Brittney Kessel, individually and in her official capacity as Dutchess County Attorney, and John Garrito, individually and in his official capacity as a Town Justice of the Town of Beekman.

Kelsey had been granted permission to proceed without prepaying filing fees. In an earlier order, the court dismissed his claims against Garrito based on judicial immunity, Eleventh Amendment immunity, and frivolousness. The court also dismissed Kelsey's claims for money damages under 42 U.S.C. § 1983 against Kessel based on prosecutorial immunity, Eleventh Amendment immunity, and frivolousness. The court gave Kelsey permission to file a Second Amended Complaint against Kessel in her official capacity, limited to prospective declaratory relief under the doctrine associated with Ex parte Young.

Court's analysis

The court determined that the Second Amended Complaint complied with the earlier order because it dropped the claims against Garrito and sought prospective declaratory relief. The court stated that the complaint met a minimum merits threshold and deemed it the operative complaint in the case.

The court explained that, because Kelsey had permission to proceed without prepaying fees, he could rely on the court and the U.S. Marshals Service to serve Kessel. The Clerk was instructed to complete the required service form, issue a summons, and provide the Marshals Service with the documents needed for service. The court extended the service period until 90 days after the summons was issued and stated that Kelsey could request an extension if service was not completed within that period.

In a footnote, the court reiterated that, to the extent Kelsey intended to assert claims for money damages against Kessel under 42 U.S.C. § 1983, those claims were dismissed under the earlier order. The court also warned Kelsey to notify the court if his address changed and stated that the action could be dismissed if he failed to do so.

Disposition

Judge Philip M. Halpern deemed the Second Amended Complaint at Document 24 the operative complaint. The court ordered the Clerk to issue a summons for Brittney Kessel, complete the service form, and deliver the necessary documents to the U.S. Marshals Service. The order did not decide the underlying question whether the New York statutory scheme was unconstitutional. The court certified that an appeal would not be taken in good faith and denied permission to appeal without prepaying fees. The opinion does not state that the action was dismissed in its entirety.