Cano v. Kharkover

Background

Christopher Hiram Cano filed a lawsuit under 42 U.S.C. § 1983, a federal law allowing claims against state actors for certain constitutional violations. Cano alleged that the defendants violated her federal and state-law rights. She was detained at the George R. Vierno Center on Rikers Island and represented herself. The court had granted her permission to proceed without prepaying filing fees, while noting that prisoners remain responsible for the full filing fee.

The order was issued during the court’s required screening of the complaint. Under the screening statutes, the court must dismiss claims that are frivolous, fail to state a legally sufficient claim, seek money from an immune defendant, or fall outside the court’s subject-matter jurisdiction.

Claims Against Ilya Kharkover

Kharkover was identified as a Bronx County Assistant District Attorney. The court held that Cano’s claims against him were based on actions within the scope of his official duties and connected with the conduct of a potential criminal trial. Prosecutors have absolute immunity from civil suits for damages arising from those types of actions, even when the plaintiff alleges the actions were wrongful.

The court therefore dismissed Cano’s claims against Kharkover because they sought money from a defendant immune from that relief and, consequently, treated the claims as frivolous under the screening statute.

Claims Against Louis Molina

Molina was identified as the Commissioner of the New York City Department of Correction. The court explained that a § 1983 claim requires facts showing the defendant’s direct and personal involvement in the alleged constitutional violation. A supervisor cannot be held liable only because an employee or subordinate allegedly violated the plaintiff’s rights.

The court found that Cano alleged no facts showing Molina’s personal involvement. It therefore dismissed the claims against Molina in his individual capacity for failure to state a claim.

The court also dismissed any claims against Molina in his official capacity as duplicative of Cano’s claims against the City of New York. An official-capacity claim against an individual government official generally represents a claim against the government entity itself, so the court treated both claims as redundant.

Other Defendants and Discovery

The court requested that the City of New York; Warden J. Renee; Deputy Chief Patricia Feeney; Deputy Tindal; Captains Gainus, Johnson, Davis, and Guan; and Correction Officers McNeil, Kenol, Crowell, Sam, and Lawrence waive service of summons. A request to waive service is not the same as a ruling in Cano’s favor on the underlying claims.

The court also ruled that Local Civil Rule 33.2 applies. That rule requires defendants in certain prisoner cases to respond to specified discovery requests. The defendants must serve their responses within 120 days after service of the complaint and must quote each request verbatim in those responses.

Conclusion

The court dismissed Cano’s claims against Kharkover and dismissed her claims against Molina as stated above. It did not state that the claims against the other defendants were dismissed; instead, it requested waivers of service and applied the prisoner-case discovery rule. The court certified that an appeal would not be taken in good faith and denied permission to proceed without prepaying fees for purposes of an appeal. Judge Jennifer L. Rochon directed the Clerk of Court to send the order and an information package to Cano.