20-947-cv
Whitnum v. Office of the Chief State’s Attorney
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE
A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
3 City of New York, on the 19th day of February, two thousand twenty-one.
4
5 PRESENT: RAYMOND J. LOHIER, JR.,
6 STEVEN J. MENASHI,
7 Circuit Judges,
8 ERIC KOMITEE,*
9 Judge.
10 _________________________________________
11
12 L. LEE WHITNUM,
13
14 Plaintiff-Appellant,
15
16 v. 20-947-cv
17
18 OFFICE OF THE CHIEF STATE’S
19 ATTORNEY, KEVIN KANE, JOHN
* Judge Eric Komitee, of the United States District Court for the Eastern District of New
York, sitting by designation.
1 WHALEN, JANE DOES 1-25, JOHN DOES
2 1-25, ABC INSURANCE COMPANIES 1-
3 10,
4
5 Defendants-Appellees. **
6 _________________________________________
7
8
9 FOR PLAINTIFF-APPELLANT: L. Lee Whitnum, pro se,
10 Greenwich, CT.
11
12 FOR DEFENDANTS-APPELLEES: No appearance.
13
14 Appeal from a judgment of the United States District Court for the District
15 of Connecticut (Janet C. Hall, Judge).
16 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
17 AND DECREED that the judgment is AFFIRMED.
18 Plaintiff-Appellant L. Lee Whitnum, proceeding pro se, appeals from the
19 February 20, 2020 judgment of the District Court (Hall, J.) adopting the
20 recommended ruling of the Magistrate Judge (Merriam, M.J.) and dismissing
21 Whitnum’s amended complaint for failure to state a claim. We assume the
22 parties’ familiarity with the underlying facts and prior record of proceedings, to
** The Clerk of Court is directed to amend the official caption to conform with the
above caption.
2
1 which we refer only as necessary to explain our decision to affirm.
2 We review de novo a district court’s sua sponte dismissal of a complaint
3 under 18 U.S.C. § 1915(e)(2). Hardaway v. Hartford Pub. Works Dep’t, 879 F.3d
4 486, 489 (2d Cir. 2018). “To avoid dismissal, a complaint must plead ‘enough
5 facts to state a claim to relief that is plausible on its face.’” Id. (quoting Bell Atl.
6 Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We afford a pro se litigant “special
7 solicitude” by interpreting a complaint filed pro se “to raise the strongest claims
8 that it suggests.” Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (quotation
9 marks omitted).
10 As an initial matter, we conclude that the District Court properly analyzed
11 Whitnum’s complaint under § 1915(e)(2). The statute requires that a district
12 court dismiss a complaint filed in forma pauperis if it determines that the action
13 “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be
14 granted; or (iii) seeks monetary relief against a defendant who is immune from
15 such relief.” 28 U.S.C. § 1915(e)(2)(B). Despite Whitnum’s argument to the
16 contrary, § 1915(e)(2) is not limited to complaints filed by prisoners. See, e.g.,
17 Cieszkowska v. Gray Line N.Y., 295 F.3d 204 (2d Cir. 2002) (affirming the
3
1 dismissal of a pro se non-prisoner complaint under § 1915(e)).
2 As for the merits, the District Court properly dismissed Whitnum’s
3 amended complaint. Whitnum chiefly challenges the dismissal of her malicious
4 prosecution claim. That claim was properly dismissed because Whitnum failed
5 to plead that the charges against her terminated in her favor. See Spak v.
6 Phillips, 857 F.3d 458, 461 n.1 (2d Cir. 2017). In urging a contrary conclusion,
7 Whitnum argues that because the stalking charge against her was dropped, she
8 has adequately alleged the requisite favorable termination to sustain her
9 malicious prosecution claim. We disagree. “When a person has been arrested
10 and indicted, absent an affirmative indication that the person is innocent of the
11 offense charged, the government’s failure to proceed does not necessarily imply
12 a lack of reasonable grounds for the prosecution.” Lanning v. City of Glens
13 Falls, 908 F.3d 19, 28 (2d Cir. 2018). In her complaint, Whitnum alleges that
14 certain charges were dismissed, but she does not suggest that any charge was
15 dismissed because she was innocent of the charge. And even if we were to look
16 beyond the complaint and consider the transcript of the proceeding in which the
17 prosecutor noted that he planned to dismiss the stalking charge, the prosecutor
4
1 offered no explanation for the dismissal. Accordingly, because Whitnum “has
2 not plausibly alleged that any of the criminal proceedings against [her] were
3 terminated in a manner indicating [her] innocence,” she has failed to plead a
4 valid malicious prosecution claim. Id. at 29.
5 We also reject Whitnum’s claims of judicial bias, which are either
6 unsupported or based on her disagreement with the rulings of the State Judge.
7 See Liteky v. United States, 510 U.S. 540, 555 (1994) (“[J]udicial rulings alone
8 almost never constitute a valid basis for a bias or partiality motion.”).
9 We have considered all of Whitnum’s remaining arguments and conclude
10 that they are without merit. For the foregoing reasons, we AFFIRM the
11 judgment of the District Court.
12
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk of Court
5