MORGAN v. PEREZ

No. 17-CV-1317 (MKB).

MEMPHIS D. MORGAN, Plaintiff, v. ASSISTANT DISTRICT ATTORNEY LEIGH ANN PEREZ, ACTING DISTRICT ATTORNEY ERIC GONZALEZ, SCOTT H. KLEIN and the 75TH PRECINCT, Defendants.

United States District Court, E.D. New York.

Editors Note
Applicable Law: 42 U.S.C. § 1983
Cause: 42 U.S.C. § 1983 Prisoner Civil Rights
Nature of Suit: 550 Prisoner: Civil Rights
Source: PACER


Attorney(s) appearing for the Case

Memphis D. Morgan, Plaintiff, Pro Se.


NOT FOR PUBLICATION

MEMORANDUM & ORDER

MARGO K. BRODIE, District Judge.

Plaintiff Memphis Morgan,1 proceeding pro se and currently incarcerated at Rikers Island, filed the above-captioned action pursuant to 42 U.S.C. § 1983 on March 6, 2017 against Defendants Assistant District Attorney ("ADA") Leigh Ann Perez, Acting District Attorney ("DA") Eric Gonzalez, lawyer Scott H. Klein, and the 75th Precinct of the New York City Police Department. (See generally Compl., Docket Entry No. 1.) Plaintiff's request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 is granted for the purpose of this Memorandum and Order. For the reasons discussed below, the Court dismisses the Complaint. The Court grants Plaintiff leave to amend the Complaint within thirty (30) days to assert a claim against the City of New York.

I. Background

The Court assumes the truth of the allegations in the Complaint for the purpose of this Memorandum and Order. Plaintiff challenges his current incarceration. (Compl. 17)2 Plaintiff was arrested in 2008 on a charge of burglary in the second degree. (Id.) Prior to trial in Kings County Supreme Court, Plaintiff "became terrified of [his] situation and decided to jump bail .. . [and] was on the run" until 2016. (Id.) Plaintiff alleges that a warrant squad was not sent to his house nor was he contacted after he jumped bail. (Id.) In 2016, Plaintiff was arrested on a misdemeanor charge, and the arresting officers discovered that there was an outstanding warrant for Plaintiff's arrest. (Id.) Plaintiff was remanded on the 2008 charge and offered a plea deal with a sentence of seven years of incarceration. (Id. at 17.) An unnamed ADA, presumably ADA Perez, who is listed on paperwork Plaintiff attaches to the Complaint, told Plaintiff that he would be charged with bail jumping if he did not accept the plea offer. (Id. at 4, 8.) In February of 2017, Plaintiff was charged under indictment number 1127/2017 with bail jumping in the second and third degree for failure to appear at a September 23, 2009 court hearing.3 (Id. at 8, 14, 17.) Plaintiff asserts that because the statute of limitations on the bail jumping charges expired, the pursuit of the charges by the District Attorney's Office "jeopardized" his rights under the Fifth, Sixth and Fourteenth Amendments. (Id.)

Plaintiff states that as a result of his incarceration and pending criminal charges, he suffers from emotional distress, lack of sleep and "deteriorating self." (Id. at 4.) In addition, Plaintiff's daughter is disturbed as a result of his situation and is missing school and "tells teachers she will commit suicide because of separation anxiety." (Id.) Plaintiff has lost his apartment, personal possessions, and his job. (Id.) His mother "is getting sicker by the day because of depression due to [his] settings." (Id.) Plaintiff alleges that ADA Perez and his appointed attorney Klein "are abusing the fact that [he is] a mental health patient." (Id. at 16-17.)

In the Complaint, Plaintiff seeks damages of eight million dollars for "loss of [his] liberty." (Id. at 5.) On April 15, 2017, Plaintiff submitted a letter to the Court reiterating his claims, and stating that he seeks damages of twenty-five million dollars. (Pl. Letter dated Apr. 15, 2017, Docket Entry No. 7.) Plaintiff also encloses several court filings relating to the bail jumping charges and the above-captioned civil action, including additional copies of the Complaint.4

II. Discussion

a. Standard of review

A complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Although all allegations contained in the complaint are assumed to be true, this tenet is "inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. In reviewing a pro se complaint, the court must be mindful that a plaintiff's pleadings should be held "to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 104-105 (1976)); see Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that even after Twombly, the court "remain[s] obligated to construe a pro se complaint liberally"). Nevertheless, the court must screen "a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity" and "dismiss the complaint or any portion of the complaint," if it is frivolous, malicious, or fails to state a claim upon which relief may be granted. 28 U.S.C. 1915A; see Abbas v. Dixon, 480 F.3d 636, 639 (2d. Cir. 2007). Similarly, the Court is required to dismiss sua sponte an in forma pauperis action if the Court determines it "(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B); see also Abbas, 480 F.3d at 639.

b. Plaintiff cannot bring an action against the 75th Precinct

Section 396 of the New York City Charter provides that "[a]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the City of New York and not in that of any agency, except where otherwise provided by law." N.Y. City Charter, chap. 17 § 396. This provision "has been construed to mean that New York City departments, as distinct from the City itself, lack the capacity to be sued." Ximines v. George Wingate High Sch., 516 F.3d 156, 159-60 (2d Cir. 2008) (per curiam). Because the 75th Precinct is a subdivision of the New York City Police Department, which is an agency of the City of New York, the 75th Precinct is not amenable to suit. See Jenkins v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007) ("[T]he NYPD is a non-suable agency of the City."); Morris v. NEC. Police Dep't, 59 F. App'x 421, 422 (2d Cir. 2003) (affirming dismissal of claims asserted against the NYPD due to non-suable-entity status). Any action against the 75th Precinct must be brought against the City of New York. Accordingly, Plaintiff's claims against the 75th Precinct are dismissed.

c. Plaintiff fails to state a claim against Klein

In order to sustain a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege (1) that the challenged conduct was "committed by a person acting under color of state law," and (2) that such conduct "deprived [the plaintiff] of rights, privileges, or immunities secured by the Constitution or laws of the United States." Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) (quoting Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994)). Section 1983 "constrains only state conduct, not the `acts of private persons or entities.'" Hooda v. Brookhaven Nat'l Lab., 659 F.Supp.2d 382, 393 (E.D.N.Y. 2009) (quoting Rendell-Baker v. Kohn, 457 U.S. 830, 837 (1982)); see also Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999) ("[T]he under color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful." (citation and internal quotation marks omitted)); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173 (1972). Thus, a claim for relief pursuant to section 1983 must allege facts showing that the challenged conduct was "committed by a person acting under color of state law." 42 U.S.C. § 1983.

It is well established that court-appointed attorneys do not act under color of state law when they perform traditional functions of counsel. Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981) ("[A] public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding."); Sash v. Rosahn, 450 F. App'x 42, 43 (2d Cir. 2011) ("[A] court appointed criminal defense attorney does not act under color of state law when representing a client" (citing Rodriguez v. Weprin, 116 F.3d 62, 65-66 (2d Cir. 1997))); Garcia v. City of New York, No. 13-CV-4655, 2013 WL 153756, at *3 (E.D.N.Y. Jan. 14, 2013) (finding that a Legal Aid Society attorney was not acting under color of state law when he represented a plaintiff in criminal court); Pecou v. Hirschfeld, No. 07-CV-5449, 2008 WL 957919, at *2 (E.D.N.Y. Apr. 3, 2008) ("Court-appointed attorneys do not act under color of state law merely by virtue of their appointment." (citing Polk Cty., 454 U.S. at 325)). Because Plaintiff has failed to plead any facts that would support a finding that Klein was acting under color of state law at the time of the alleged civil rights violations, Plaintiff's claim against Klein is dismissed. 28 U.S.C. § 1915(e)(2)(B).

d. Plaintiff fails to state a claim against ADA Perez and DA Gonzalez

"It is well established that a state prosecuting attorney who acted within the scope of his duties in initiating and pursuing a criminal prosecution is immune from a civil suit for damages under § 1983." Shmueli v. City of New York, 424 F.3d 231, 236 (2d Cir. 2005) (internal quotation marks omitted). "Prosecutorial immunity from § 1983 liability is broadly defined, covering virtually all acts, regardless of motivation, associated with [the prosecutor's] function as an advocate." Hill v. City of New York, 45 F.3d 653, 661 (2d Cir. 1995) (internal quotation marks and brackets omitted). Immunity extends to deciding which offenses to charge, initiating a prosecution, presenting the case at trial, and evaluating and organizing evidence for presentation at trial or to a grand jury. Id. Absolute immunity for prosecutorial acts can be defeated only if the prosecutor is alleged to have acted in the complete absence of jurisdiction. Shmueli, 424 F.3d at 237.

Here, Plaintiff's claims against ADA Perez involve her decisions to bring bail jumping charges which Plaintiff alleges were barred by the statute of limitations5 and to offer Plaintiff a plea deal, both of which are within the scope of her duties as a prosecutor. See, e.g., Peay v. Ajello, 470 F.3d 65, 67-68 (2d Cir. 2006) (prosecutorial immunity encompasses allegations of "fabricating evidence used at trial, withholding exculpatory evidence, suborning perjury, and attempting to intimidate [a defendant] into accepting a guilty plea."); Shmueli, 424 F.3d at 237 ("Once the court determines that the challenged prosecution was not clearly beyond the prosecutor's jurisdiction, the prosecutor is shielded from liability for damages for commencing and pursuing the prosecution, regardless of any allegations that his actions were undertaken with an improper state of mind or improper motive."). DA Gonzalez is likewise entitled to prosecutorial immunity.

Moreover, because Plaintiff fails to allege any conduct by DA Gonzalez that contributed to the violation of his constitutional rights, Plaintiff fails to state a claim against DA Gonzalez because there is no supervisory liability under section 1983. See, e.g., Iqbal, 556 U.S. at 676 ("Because vicarious liability is inapplicable to Bivens and [section] 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution."); Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003) ("Absent some personal involvement by [the supervisory official] in the allegedly unlawful conduct of his subordinates,' he cannot be liable under section 1983." (alteration in original) (quoting Gill v. Mooney, 824 F.2d 192, 196 (2d Cir. 1987))).

Thus, the claims against ADA Perez and DA Gonzalez are dismissed pursuant to 28 U.S.C. § 1915A(b)(2) and 28 U.S.C. § 1915(e)(2)(B)(iii).

e. Leave to amend

While it is unclear that Plaintiff can cure the defects with the Complaint, the Court grants Plaintiff leave to amend the Complaint to attempt to assert a claim against the City of New York to the extent Plaintiff can articulate a constitutional violation that would not call into question any pending charges against him or any conviction.6 In order to bring a claim against the City of New York instead of the 75th Precinct, Plaintiff must allege a policy or custom attributable to New York City. See Torraco v. Port Auth. of N.Y. & N.J., 615 F.3d 129, 140 (2d Cir. 2010) (holding that a municipality, like the City of New York, can be liable under section 1983 only if a Plaintiff can demonstrate "(1) an official [municipal] policy or custom that (2) cause[d] the plaintiff to be subjected to (3) a denial of a constitutional right." (quoting Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007))); Iacovangelo v. Corr. Med. Care, Inc., 624 F. App'x 10, 13-14 (2d Cir. 2015) (holding that proof of a single incident of unconstitutional activity is not sufficient to impose liability on a municipality unless a plaintiff can establish that the incident occurred pursuant to one of the following: (1) a formal policy officially endorsed by the municipality; (2) actions or decisions made by municipal officials with decision-making authority; (3) a practice so persistent and widespread that it constitutes a custom of which policymakers must have been aware; or (4) a failure by policymakers to properly train or supervise their subordinates, such that the policymakers exercised "deliberate indifference" to the rights of the plaintiff and others encountering those subordinates); see also Matusick v. Erie Cty. Water Auth., 757 F.3d 31, 62 (2d Cir. 2014) (widespread and persistent practice); Carter v. Inc. Vill. of Ocean Beach, 759 F.3d 159, 164 (2d Cir. 2014) (failure to train amounting to deliberate indifference); Jones v. Town of E. Haven, 691 F.3d 72, 81 (2d Cir. 2012) (policymaking official's "express" or "tacit" ratification of low-level employee's actions).

However, because Plaintiff cannot bring a section 1983 claim against his attorney Klein, who was not acting under color of state law, and because Plaintiff cannot bring a claim against ADA Perez and DA Gonzalez for actions taken pursuant to their prosecutorial duties, Plaintiff cannot amend his claims as to Defendants Klein, ADA Perez or DA Gonzalez.

III. Conclusion

For the foregoing reasons, the Complaint is dismissed pursuant to 28 U.S.C. § 1915A(b) and 28 U.S.C. § 1915(e)(2)(B). The Court grants Plaintiff thirty (30) days from the date of this Memorandum and Order to file an amended complaint. Should Plaintiff elect to file an amended complaint, the amended complaint must comply with Rule 8(a) of the Federal Rules of Civil Procedure, and it must "plead enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Plaintiff is advised that the amended complaint will completely replace the original complaint, must be captioned "Amended Complaint," and must bear the same docket number as this Memorandum and Order. If Plaintiff fails to file an amended complaint within the time allowed, the Court will enter judgment dismissing this action for the reasons set forth above. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

SO ORDERED.

2008 WL 957919 Only the Westlaw citation is currently available. United States District Court, E.D. New York. Alphonse PECOU, Plaintiff, v. Attorney Sidney HIRSCHFELD, Director of Mental Hygiene Legal Services; Attorney Lillian Sondon; Supervisor Jackie Civaltino, Esq.; Commissioner of Mental Health Sharon Carpinello; and Mr. Felds, Deputy Director of MHLS, Defendants. No. 07-cv-5449 (SJF). April 3, 2008.

Attorneys and Law Firms

Alphonse Pecou, Queens Village, NY, pro se.

OPINION AND ORDER

Dismissing Plaintiffs Complaint

FEUERSTEIN, District Judge.

I. Introduction

*1 On October 11, 2007, pro se Plaintiff, Alphonse Pecou, filed this civil action, ostensibly pursuant to 42 U.S.C. §§ 1983, 1985, and 1986, in the United States District Court for the Southern District of New York ("S.D.N.Y."). The case was transferred to this Court on December 28, 2007. Plaintiffs financial status qualifies him to commence this action without prepayment of the filing fees. See 28 U.S.C. § 1915(a)(1). Therefore, Plaintiffs request to proceed in forma pauperis is granted. For the reasons set forth below, the Complaint is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim upon which relief may be granted.

II. Background

On January 5, 2007, Plaintiff filed a previous civil action against the Office of Health Information and several other defendants, in which he sought to challenge information contained in his mental health records, which he alleged had affected his liberty interests. That case was ultimately dismissed by this Court. See Pecou v. Forensic Committee Personnel, et al., No. 06-cv-3714 (SJF), 2007 WL 1774693 (E.D.N.Y. June 18, 2007). In the instant Complaint, Plaintiff names as defendants several attorneys at Mental Hygiene Legal Services and the Commissioner of Mental Health. He alleges that his recent retention hearing violated his right to Due Process and that his attorneys failed to file an appeal of the unfavorable judgment. He seeks $10 million in damages.

III. Discussion

A. Standard of Review

Title 28, Section 1915(e)(2)(B) of the United States Code requires a district court to dismiss a case if the court determines that the action "(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S .C. § 1915(e)(2)(B). A pro se plaintiffs submissions are held "`to less stringent standards than formal pleadings drafted by lawyers.'" Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)). Indeed, a court must "read the pleadings of a pro se plaintiff liberally and interpret them `to raise the strongest arguments that they suggest.'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999) (quoting Burgos v. Hopkins, 14 F.3d 878, 790 (2d Cir.1994)). Nonetheless, a pro se plaintiff is not exempt from compliance with relevant rules of procedural and substantive law. See Traguth v. Zuck, 710 F.2d 90, 92 (2d Cir.1983).

B. Alleged Civil Rights Violations

Plaintiff alleges that Defendants' actions violated his civil rights. A claim for violations of constitutional rights is cognizable under 42 U.S.C. § 1983 (" § 1983"). Claims alleging conspiracy or failure to prevent a conspiracy to violate civil rights may be brought pursuant to 42 U.S.C. § 1985(3) and § 1986.1 In order to maintain a § 1983 action, a plaintiff must allege two essential elements. First, "the conduct complained of must have been committed by a person acting under color of state law ." Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir.1994) (citations omitted). Second, "the conduct complained of must have deprived a person of rights, privileges or immunities secured by the Constitution or laws of the United States." Id.

*2 Section 1983 imposes liability for constitutional deprivations caused by state actors and cannot be applied to the actions of private individuals. As the Supreme Court has held, "the under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful." American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) (quotations omitted). Court-appointed attorneys do not act under color of state law merely by virtue of their appointment. See Polk County v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981) (county public defender does not act under color of state law when performing traditional advocacy functions); Fisk v. Letterman, 401 F.Supp.2d 362, 378 (S.D.N.Y.2005) (holding that a court-appointed attorney is not a state actor, even if employed by the Mental Hygiene Legal Services, a state-funded legal services agency under the direction of the New York State Office of Court administration). Accordingly, all claims against Mental Hygiene Legal Services attorneys Sidney Hirschfield, Lillian Sondon, Jackie Civaltino, and Mr, Felds are dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) (ii).

A § 1983 plaintiff seeking to recover money damages must establish that the named individual defendants were personally involved in the wrongdoing or misconduct of which complained. A supervisory official is deemed to have been personally involved only if: (1) that official directly participated in the infraction; (2) after learning of a violation through a report or appeal, the official failed to remedy the wrong; (3) the official either created a policy or custom under which unconstitutional practices occurred or allowed such a policy or custom to continue; or (4) the official was grossly negligent in managing subordinates who caused the unlawful condition or event. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (quoting Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986)). Defendant Sharon Carpinello, the Commissioner of Mental Health, is a supervisory official. Plaintiff has not alleged any direct personal involvement by this individual, nor has he identified any specific acts or failures to act that may be attributed to her. Therefore, this claim, too, must be dismissed for failure to state a claim, pursuant to 28 U.S.C. § 1915(e)(2) (B)(ii).

IV. Conclusion

For the foregoing reasons, Plaintiffs Complaint is dismissed with prejudice, sua sponte, pursuant to 28 U.S.C. § 1915(e)(2) (B)(ii). The Clerk of Court is directed to close this case. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).

IT IS SO ORDERED.

All Citations

Not Reported in F.Supp.2d, 2008 WL 957919

21313 WL 153756 Only the Westlaw citation is currently available. United States District Court, E.D. New York. Germaine GARCIA, Plaintiff, v. The CITY OF NEW YORK and Attorney at Law David Seamen, Defendants. No. 12-CV-4655 (MKB). Jan. 14, 2013.

Attorneys and Law Firms

Germaine Garcia, Ossining, NY, pro se.

MEMORANDUM & ORDER

MARGO K. BRODIE, District Judge.

*1 On September 14, 2012, Plaintiff Germaine Garcia, currently incarcerated at Sing Sing Correctional Facility,1 filed the above-captioned pro se action pursuant to 42 U.S.C. § 1983 against Defendants City of New York and David Seaman, the defense attorney assigned to Plaintiffs arraignment in his state court criminal proceeding. Plaintiff seeks monetary damages for injuries arising out of his state court criminal proceeding and claims he suffered "legal injury, mental anguish, loss of freedom, [c]onstitutional [i]njury, [c]ivil assault and [p]ersonal injury." (Compl. at 33.) The Court grants Plaintiffs request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a), solely for the purpose of this Order. For the reasons discussed below, the Complaint is dismissed for failure to state a claim upon which relief may be granted.

I. Background

On or about October 9, 2009, Plaintiff was arraigned in Kings County Criminal Court on the following charges: burglary in the first degree; burglary in the second degree; assault in the second degree; burglary in the third degree; aggravated criminal contempt; criminal contempt in the first degree; assault in the third degree; criminal trespass in the second degree; criminal mischief in the fourth degree; criminal contempt in the second degree; menacing in the third degree; criminal trespass in the third degree; trespass; and harassment in the second degree. (Compl. at 31.) According to Plaintiff, he waived indictment by the Grand Jury on October 11, 2009, and an indictment was returned by the Grand Jury on or about November 19, 2009 to include the following charges: burglary in the second degree; burglary in the third degree; aggravated criminal contempt; criminal contempt in the first degree; criminal contempt in the second degree; menacing in the third degree; criminal mischief in the fourth degree; attempted assault in the third degree. (Id. at 19, 31, 5152, 58.) Plaintiff appears to allege that the waiver of indictment was "illegal" as he did not sign the waiver in open court. (Id. at 35.) Plaintiff also alleges violations of the Federal Rules of Evidence. (See, e.g., id. at 36, 38, 50.)

II. Discussion

a. Standard of Review

Under 28 U.S.C. § 1915(e)(2)(B), a district court shall dismiss an in forma pauperis action where it is satisfied that the action "(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 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.'" Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir.1998) (internal citation omitted); see also Pacheco v. Connecticut, 471 F. App'x 46, 47 (2d Cir.2012) (summary order) (upholding sua sponte dismissal of a pro se complaint under § 1915A); Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir.2007) (discussing dismissal under the statute).

*2 Moreover, at the pleadings stage, the Court must assume the truth of "all well-pleaded, nonconclusory factual allegations" in the complaint. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 124 (2d Cir.2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 677-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). A complaint must plead sufficient facts to "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

Pro se complaints are held to less stringent standards than pleadings drafted by attorneys and the Court is required to read the plaintiffs pro se complaint liberally and interpret it as raising the strongest arguments it suggests. Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) ("A document filed pro se is `to be liberally construed,' and `a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" (citations omitted)); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191-93 (2d Cir.2008) (When "[a] plaintiff proceeds pro se, . . . a court is obliged to construe his pleadings liberally." (alteration in original)); Abbas, 480 F.3d at 639. (A court "must liberally construe [pro se] pleadings, and must interpret [pro se] complaint to raise the strongest arguments it suggests."). If a liberal reading of the complaint "gives any indication that a valid claim might be stated," the Court must grant leave to amend the complaint. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000); see Abbas, 480 F.3d at 639 (A court "must accord the inmate an opportunity to amend the complaint `unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would succeed in stating a claim.'").

b. Defendant Seaman

Plaintiff cannot sustain a § 1983 claim against Defendant Seaman. In order to maintain a § 1983 action, Plaintiff must allege two essential elements. First, "the conduct complained of must have been committed by a person acting under color of state law." Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir.1994); see Filarsky v. Delia, 566 U.S. ___, ___, 132 S.Ct. 1657, 1661-62, 182 L.Ed.2d 662 (2012) ("Section 1983 provides a cause of action against any person who deprives an individual of federally guaranteed rights `under color' of state law."). Second, "the conduct complained of must have deprived a person of rights, privileges or immunities secured by the Constitution or laws of the United States." Pitchell, 13 F.3d at 547; see Isaacs v. City of New York, No. 10 Civ. 4177, 2012 WL 314870, at *2 (E.D.N.Y. Feb. 1, 2012). "Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir.1993) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985)). A private actor acts under color of state law when his or her actions are "fairly attributable to the state." Filarsky, 566 U.S. at ___, 132 S.Ct. at 1661-62; see also Abdullahi v. Pfizer, Inc., 562 F.3d 163, 188 (2d Cir.2009) ("Under § 1983, state action may be found when there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself." (quoting Brentwood Acad. v. Tenn. Secondary Schl. Athletic Ass'n, 531 U.S. 288, 295, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001) (internal quotation marks omitted)). "[T]he under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful." American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) (internal quotation marks omitted).

*3 Plaintiff alleges that Defendant Seamen, an attorney with the Legal Aid Society, improperly represented him at his criminal court hearing, leading to an "illegally constituted indictment." (Compl. at 35.) It is well established that court-appointed attorneys, including attorneys associated with a legal aid organization, do not act under color of state law when performing traditional functions of counsel. Polk County v. Dodson, 454 U.S. 312, 32425, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981) ("[A] public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding."); Sash v. Rosahn, 450 F. App'x 42, 43 (2d Cir.2011) (summary order) ("[A] court-appointed criminal defense attorney does not act under color of state law when representing a client" (citing Rodriguez v. Weprin, 116 F.3d 62, 65-66 (2d Cir.1997))); Krug v. McNally, 488 F.Supp.2d 198, 200 (N.D.N.Y. Feb. 8, 2007) ("[D]efense attorneys even if court-appointed or public defenders do not act under color of State law when performing traditional functions of counsel."). Plaintiff has failed to plead any facts that would, even if accepted as true, support a finding that Defendant Seamen was acting under color of state law at the time of the alleged civil rights violations. Accordingly, Plaintiffs claim against Defendant Seamen is dismissed. See 28 U.S.C. § 1915(e)(2)(B)(ii); 28 U.S.C. § 1915A(b)(1).

c. Defendant City of New York

Plaintiff cannot sustain a § 1983 action against the City of New York. In order to sustain a claim for relief under § 1983 against a municipal defendant, a plaintiff must show the existence of an officially adopted policy or custom that caused injury, and a direct causal connection between that policy or custom and the deprivation of a constitutional right. Monell v. Dep't of Social Servs. of City of N.Y., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ("[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom . . . inflicts the injury that the government as an entity is responsible under § 1983."); see Torraco v. Port Auth. of N.Y. & N.J., 615 F.3d 129, 140 (2d Cir.2010) ("[T]o hold a city liable under § 1983 for the unconstitutional actions of its employees, a plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right." (alteration in original) (quoting Wray v. City of New York, 490 F.3d 189, 195 (2d Cir.2007))). "[A] municipality cannot be made liable [under § 1983] by the application of the doctrine of respondeat superior." Pembaur v. City of Cincinnati, 475 U.S. 469, 478, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986); see Perez v. Metro. Transp. Auth., No. 11 Civ. 8655, 2012 WL 3195078 (S.D.N.Y. Aug. 7, 2012).

The Complaint fails to allege facts from which the Court could infer that any alleged injury was caused by any policy or custom of the City of New York. Conclusory claims that Plaintiffs rights were violated due to an allegedly "illegal" waiver of indictment do not give rise to an inference of the existence of a custom, policy or practice that would hold the City of New York liable.2 Accordingly, this claim must be dismissed as it fails to state a claim upon which relief may be granted. See 28 U.S.C. § 1915A(b)(1). As Plaintiff fails to allege facts sufficient to "allow[ ][a] court to draw the reasonable inference that the [municipal] defendant is liable for the misconduct alleged," Ashcroft v. lqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), the Complaint is dismissed against the City of New York for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1).

III. Conclusion

*4 For the forgoing reasons, the Complaint is dismissed for failure to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii); 28 U.S.C. § 1915A(b)(1). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and, therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).

SO ORDERED.

All Citations

Not Reported in F.Supp.2d, 2013 WL 153756.

FootNotes


1. Although Plaintiff identifies himself in the caption as Memphis D. Morgan, based on the allegations in the Complaint, it appears that Plaintiff is also known as Dante Morgan and was charged in state criminal proceedings under that name. (Compl. 6-11.)
2. Because the Complaint is not consecutively paginated, the Court refers to the page numbers assigned by the electronic document filing system (ECF).
3. Plaintiff attaches as an exhibit to the Complaint a Voluntary Disclosure Form from the Kings County District Attorney's Office noting the offense of bail jumping in the second and third degree occurred at 12:00 PM on September 23, 2009. (Compl. 8-10.)
4. The additional copies of the Complaint are formatted slightly differently than the original Complaint but include the same factual details.
5. The statute of limitations is not jurisdictional. See, e.g., People v. Mills, 1 N.Y.3d 269, 274 (2003) ("New York courts have long recognized that the statute of limitations defense is not jurisdictional and can be forfeited or waived by a defendant." (collecting cases)).
6. See Heck v. Humphrey, 512 U.S. 477, 487 (1994) ("[w]hen a state prisoner seeks damages in a § 1983 suit, the district 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 or sentence has already been invalidated.").
1. Sections 1985(3) and 1986 may be invoked to protect against conspiracies to deprive individuals of their constitutional rights. Among other requirements, a § 1985(3) plaintiff must show that the conspiracy was motivated by "some racial, or perhaps otherwise class-based, invidiously discriminatory animus." Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 268, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993) (quoting Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971)). Here, Plaintiff has not alleged a deprivation of rights on account of his membership in a protected class, thus he has failed to state a claim for violation of § 1985. See Thomas v. Roach, 165 F.3d 137, 147 (2d Cir.1999). In order to establish a violation of § 1986, a plaintiff must first establish a violation of § 1985 which the § 1986 defendant failed to prevent. Brown v. City of Oneonta, 221 F.3d 329, 341 (2d Cir.2000) ("[A] § 1986 claim must be predicated upon a valid § 1985 claim.") (quotation marks and citation omitted). As Plaintiff has failed to state a valid claim under these sections, these claims are also dismissed.
1. Plaintiff was previously incarcerated in Rikers Island Correctional Facility. Plaintiff indicated by letter, received December 20, 2012, that he is now being detained at the Sing Sing Correctional Facility. (Docket No. 5.)
2. Furthermore, since Plaintiff cannot sustain a claim against Defendant Seaman, the sole individual defendant in this case, Plaintiff cannot sustain a claim against the City of New York predicated on Monell liability. Segal v. City of New York, 459 F.3d 207, 219 (2d Cir.2006) ("Monell does not provide a separate cause of action for the failure by the government to train its employees; it extends liability to a municipal organization where that organization's failure to train, or the policies or customs that it has sanctioned, led to an independent constitutional violation."); Mendoza v. County of Nassau, No. 11-CV-02487, 2012 WL 4490539, at *7 (E.D.N.Y. Sept. 27, 2012) ("When there is no underlying constitutional violation, there can be no municipal liability under Monell."). "Since the complaint fails to state a plausible Section 1983 cause of action against the individual defendant[ ] based upon any independent constitutional violation, plaintiff cannot state a claim for municipal liability under Monell."Mendoza, 2012 WL 4490539, at *7 (E.D.N.Y. Sept. 27, 2012).

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