Nelson v. Brown

Filing 24

ORDER: For the reasons stated in the enclosed Memorandum and Order, the court dismisses plaintiff's complaint in its entirety and grants defendant's 9 motion to dismiss. Although plaintiff paid the filing fee, the court certifies pursuan t 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 purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is respectfully requested to enter judgment in favor of defendant, serve a copy of this Memorandum and Order and the judgment on pro se plaintiff within two days of the date of this order, and close this case. Ordered by Judge Kiyo A. Matsumoto on 9/10/2014. (Tsai, Denise)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
DERIC NELSON,

MEMORANDUM & ORDER
13-CV-3446 (KAM) (MDG)
Plaintiff,

-againstDAMIEN BROWN,
Defendant.
-------------------------------------X
MATSUMOTO, United States District Judge:
On June 18th, 2013, pro se plaintiff Deric Nelson
(“plaintiff”) filed this action pursuant to 42 U.S.C. § 1981
and the Trust Indenture Act of 1939, codified at 15 U.S.C. §§
77aaa through 77bbbb, alleging that defendant Damien Brown
(“defendant”) violated his constitutional and statutory rights
during the course of Defendant’s legal representation of
Plaintiff. (See generally ECF No. 1, Complaint filed 6/18/13
(“Compl.”).)
law.

Plaintiff also asserts tort claims under state

(See id. ¶¶ 110-121).

punitive damages.

(Id. ¶ 1).

Plaintiff seeks compensatory and
For the reasons set forth

below, the court dismisses plaintiff’s complaint in its
entirety.

1

BACKGROUND
The following facts, taken from the complaint, are
assumed to be true unless otherwise indicated.
On December 28, 2009, plaintiff was arrested and
charged with Attempted Grand Larceny in the first degree,
offering to file a false instrument in the first degree, and
falsifying business records in the first degree in the state
of New York, County of Kings. 1

See

http://iapps.courts.state.ny.us/webcrim_ attorney, Case Number
00046-2010 (last visited 9/8/14); (ECF No. 9, Motion to
Dismiss filed 9/12/13 (“Def. Mot.”) at 4).

During the course

of his prosecution, plaintiff, proceeding pro se, submitted a
“writ of defense” alleging that false allegations and false
county documents had been “levied against him.”
48.)

(Compl. ¶

Defendant was appointed to represent plaintiff in his

state court criminal proceedings.

(Id. at ¶ 50.)

Plaintiff instructed defendant that he “was looking
to have pre-trial hearings in order to prove beyond a reason
1

Plaintiff, on his own behalf or through his family members, has
previously filed four petitions in the United States District Court for the
Eastern District of New York, challenging plaintiff’s pre-trial detention
on the same state indictment. In those prior petitions, plaintiff raised
many of the same claims he brings in this federal action. The four prior
petitions were each dismissed. See Nelson v. Thompson, et al., No. 14-CV3414 (KAM); Nelson v. Hynes, et al., No. 12-CV-4913 (KAM); Nelson v. Hynes,
et al., No. 13-CV-3447 (KAM), and Nelson v. Hynes, et al., No. 14-CV-603
(KAM). Plaintiff also filed a federal civil action, currently pending,
against his current attorney in the pending state criminal proceeding. See
Nelson v. Stella, 13-CV-6812 (KAM).

2

of a doubt his civil rights had been violated by various
officers in the City of New York and the County of Kings
during his arrest in connection with the charges against him.”
(Id. ¶ 53.)

Specifically, plaintiff gave defendant a

document, entitled “Constructive Notice to Attorney,
Instructions for Representation for Deric Nelson,” which
consists of instructions to defendant regarding how to pursue
plaintiff’s criminal defense, and excerpts from the Model Code
of Professional Responsibility. 2

(Id. ¶ 54; Compl., Ex. C,

“Constructive Notice to Attorney” dated 4/18/13.)

Plaintiff

also “demanded” that defendant seek Mapp/Dunaway, Huntley, and
Sandoval hearings, as well as a hearing to determine whether
the New York state speedy trial statute had been violated.
(Compl. ¶¶ 54-55.)
Defendant did not make any pre-trial motions and
instead notified the state court that plaintiff was prepared
to proceed with the criminal trial. 3 (Id. ¶ 56.) After
defendant did not file any pre-trial motions, plaintiff served

2

Defendant asserts that he refused to sign the Notice, but assured
plaintiff that he would devote time and attention to plaintiff’s case, as
well as answer plaintiff’s questions throughout the course of his criminal
case. (ECF No. 9, Motion to Dismiss filed 9/12/13 (“Def. Mot.”), at 3.)
3
According to defendant, he did not request these hearings on plaintiff’s
behalf because there was no basis to hold them, as there was no property
and/or evidence that was seized from plaintiff at the time of his arrest or
at any time thereafter, and there were no statements or identification of
the plaintiff to be introduced at trial. (Def. Mot. at 4; see also Compl.,
Ex. F, Transcript of New York State Court Criminal Proceeding, Indictment
No. 0046/2010, dated 4/24/13 (“State Ct. Tr.”), at 5-9.)

3

defendant with a “Notice of Dishonor and Default” because
defendant’s “representation [was] being used to assist
[plaintiff’s] accusers.”

(Id. ¶ 65; Compl., Ex. D, “Notice of

Dishonor and Default” dated 4/13/13 and filed 5/13/13.)
According to the plaintiff, “numerous attempts” were made to
“sit down” with defendant “to discuss strategies in having his
rights honored,” but these attempts were unsuccessful as
defendant was in “a conspiracy to conceal securities fraud and
not be liable to the plaintiff’s accusers as a [sic] attorney
licensed in the State of New York.”

(Compl. ¶ 73.)

Although hardly a model of clarity, plaintiff’s
complaint appears to allege that defendant, by failing to
honor plaintiff’s “Constructive Notice to Attorney”
instructions, violated plaintiff’s civil and constitutional
rights under the Fourth Amendment, Eighth Amendment,
Fourteenth Amendment, and 42 U.S.C. §§ 1981 and 1983; and
conspired to violate plaintiff’s constitutional rights under
the Trust Indenture Act (“TIA”), codified at 15 U.S.C. §§
77aaa through 77bbb.

(Compl. at 9-13.)

Plaintiff also raises

various state law claims, including claims of unreasonable
seizure, negligence, intentional infliction of emotional
distress, and negligent infliction of emotional distress.
(Compl. at 13-14.)

4

Defendant now moves to dismiss the complaint for
failure to state a claim under Federal Rule of Civil Procedure
12(b)(6) (“Rule 12(b)(6)”).

(See ECF No. 9, Motion to Dismiss

filed 9/12/13 (“Def. Mot.”); ECF No. 15, Plaintiff’s Omnibus
Motion filed 9/26/13 (“Pl. Opp.”); ECF No. 16, Plaintiff’s
Affidavit in Response to Motion to Dismiss filed 9/26/13 (“Pl.
Br.”) 4.)
DISCUSSION
I.

Standard of Review
In reviewing plaintiff’s complaint, the court is

mindful that the submissions of a pro se litigant must be
construed liberally and interpreted “to raise the strongest
arguments that they suggest.”

Triestman v. Fed. Bureau of

Prisons, 470 F.3d 471, 474 (2d Cir. 2006).

Nonetheless, a

court “should not hesitate to dismiss a pro se complaint if it
fails altogether to satisfy the pleading standard.”

Henry v.

Davis, No. 10 Civ. 7575, 2011 WL 3295986, at *2 n.5 (S.D.N.Y.
Aug. 1, 2011).

Under Federal Rule of Civil Procedure

12(b)(6), to survive a motion to dismiss, a complaint “must
contain sufficient factual matter, accepted as true, to state
4

By order dated October 21, 2013, following a telephonic conference
with both parties, the court deemed plaintiff’s “Omnibus Motion” and
“Affidavit in Response to Memorandum in Opposition to Motion to Dismiss” to
constitute plaintiff’s response to defendant’s motion to dismiss. (Minute
Order dated 10/21/13.) Defendant did not file a reply. (See ECF No. 19,
Def. Letter filed 10/23/13.)

5

a claim to relief that is plausible on its face.”

Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (internal quotations omitted);
Fed. R. Civ. P. 12(b)(6).

A claim “has facial plausibility

when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
Under this standard, “a plaintiff's obligation to provide the
grounds of his entitlement to relief requires more than labels
and conclusions, and a formulaic recitation of a cause of
action's elements will not do.”

Bell Atl. Corp. v. Twombly,

550 U.S. 544, 545 (2007) (internal quotations omitted).
II.

First and Second Causes of Action: Violations of Civil
Rights Under § 1981
Plaintiff first alleges that as a “direct and

proximate result” of defendant’s actions, he was “deprived of
rights, privileges, and immunities secured to him under the
Constitution and the laws of the state of New York and the
United States” including the “Fourth, Eighth, and Fourteenth
Amendments of the United States Constitution and 42 U.S.C.
Section 1981 in regards to contracts.”

(Compl. ¶ 82.)

The

Fourth Amendment protects “the right of people to be secure in
their persons” and protects against “unreasonable searches and
seizures.”

U.S. CONST. amend. IV.

Plaintiffs wishing to seek

civil damages for a Fourth Amendment violation bring may bring

6

claims, pursuant to 42 U.S.C. § 1983, against the state actors
acting under color of state law who are allegedly directly
responsible for the constitutional violation.

See Brower v.

Cnty. of Inyo, 489 U.S. 593, 599 (1989) (unreasonable seizure
in violation of the Fourth Amendment gives rise to § 1983
liability); Carpenter v. City of New York, 984 F. Supp. 2d
255, 263 (S.D.N.Y. 2013).
The Eighth Amendment protects against the infliction
of “cruel and unusual punishment.”

U.S. CONST. amend. VIII.

To “establish civil liability for a violation of the
conditions of confinement under the Eighth Amendment, a § 1983
plaintiff must demonstrate that (1) the conditions were so
serious that they constituted a denial of the ‘minimal
civilized measure of life's necessities,’ and (2) the prison
officials acted with ‘deliberate indifference.’” Simmons v.
Nalley, No. 03-CV-1093, 2009 WL 3199552, at *10 (N.D.N.Y.
Sept. 30, 2009) (quoting Wilson v. Seiter, 501 U.S. 294, 297–
99 (1991)); see also Phelps v. Kapnolas, 308 F.3d 180, 185 (2d
Cir. 2002).
Here, liberally construing plaintiff’s
constitutional claims against defendant as arising under 42
U.S.C. § 1983, plaintiff fails to state a claim.

First, it is

well established that “court-appointed attorneys performing a

7

lawyer’s traditional functions as counsel to defendant do not
act ‘under color of state law’ and therefore are not subject
to suit under 42 U.S.C. § 1983.”

Rodriguez v. Weprin, 116

F.3d 62, 65-66 (2d Cir. 1997) (citing Housand v. Heiman, 594
F.2d 923, 924-25 (2d Cir. 1979) (per curiam)).

Here,

defendant was appointed by the New York state court to defend
plaintiff in his criminal proceeding and, thus, is not a state
actor for purposes of § 1983. 5
Second, even if defendant were a state actor who
could be held liable under § 1983, plaintiff fails to state a
plausible claim that his Eighth Amendment or Fourth Amendment
rights were violated at all, let alone violated by defendant.
Plaintiff attempts to connect defendant to the alleged
constitutional violations, by claiming that defendant “allowed
a conspiracy to take place without consequence,” and engaged
“in systematic and ubiquitous perjury . . . to cover up
constitutional and state law violations committed against
civilians by him or fellow officers, and/or superiors.”
(Compl. ¶ 87.)

Plaintiff, however, offers no specific factual

5
In addition, “the United States Constitution regulates only the
Government, not private parties.” Ciambriello v. Cnty. of Nassau, 292 F.3d
307, 323 (2d Cir. 2002). Thus, plaintiff cannot state a claim for an
Eighth Amendment or Fourth Amendment violation without alleging additional
facts, lacking here, that would establish that defendant’s conduct
constituted state action. Id. Plaintiff’s conclusory allegations of a
conspiracy (see Compl. at 10) lack the specificity required to state a
constitutional claim against a private party.

8

allegations regarding any search or seizure committed by the
defendant, does not specify what “punishment” occurred, and
fails to allege that defendant was in any way responsible for
or indifferent to any “punishment” inflicted upon plaintiff.
Thus, plaintiff’s claims alleging violations of his Eighth and
Fourth Amendment constitutional rights are dismissed for
failure to state a claim.
Furthermore, the court finds that plaintiff’s claim
arising under § 1981 is similarly meritless.

Title 42 U.S.C.

§ 1981 “protects the equal right of all persons within the
jurisdiction of the United States to make and enforce
contracts without respect to race.”

Underdog Trucking, L.L.C.

v. Cellco P'ship, 514 F. App'x 31, 32 (2d Cir. 2013) (internal
quotations omitted).

Under § 1981, “a plaintiff is entitled

to relief ‘when racial discrimination blocks the creation of a
contractual relationship, as well as when racial
discrimination impairs an existing contractual relationship.’”
Underdog, 514 F. App'x at 32 (quoting Domino's Pizza, Inc. v.
McDonald, 546 U.S. 470, 476 (2006)).

To successfully state a

claim under § 1981, a plaintiff must allege that the
defendant’s actions “were purposefully discriminatory and
racially motivated.”

Yusuf v. Vassar Coll., 827 F. Supp. 952,

955 (S.D.N.Y. 1993), rev’d in part on other grounds, 35 F.3d

9

709 (2d Cir. 1994).

A complaint that consists “of nothing

more than naked assertions, and setting forth no facts upon
which a court could find a violation of the Civil Rights Acts,
fails to state a claim under Rule 12(b)(6).”

Martin v. N.Y.S.

Dep’t of Mental Hygiene, 588 F.2d 371, 372 (2d Cir. 1978)
(citation omitted).

To survive a motion to dismiss under Rule

12(b)(6), “the events of the intentional and purposeful
discrimination, as well as the racial animus constituting the
motivating factor for the defendant’s actions must be
specifically pleaded in the complaint.”

Yusuf, 827 F. Supp.

at 955.
Here, plaintiff has not alleged facts supporting a
prima face case of a violation under § 1981.

While it is true

that plaintiff, as an African American (see Compl. ¶ 47), is a
member of a protected class, it is unclear from plaintiff’s
complaint whether and how the plaintiff was impaired by the
defendant in the making or enforcement of a contract.
Plaintiff’s § 1981 claim appears to be based largely on the
plaintiff’s “Constructive Notice to Attorney” document that
defendant did not agree to.

Even assuming, arguendo, that

such a document could constitute a contract and that the
parties agreed to it, plaintiff fails on the third prong of
the prima facie test, as he pleads no plausible facts

10

supporting any inference that defendant impaired the making or
enforcing of any contract due to racial discrimination.
Plaintiff’s complaint alleging racial discrimination
is wholly conclusory, and lacks specific factual allegations.
Plaintiff alleges that the defendant’s law offices
“established a custom, policy and/or practice of encouraging,
approving and/or tolerating the County of Kings use of
excessive force and acts of misconduct against civilians,
especially those civilians who are of African American descent
and of a different religious faith.”

(Compl. ¶ 88.)

Plaintiff alleges that defendant was “deliberately
indifferent” to improper detention procedures by police
officers, “especially [the detention and arrest of] those
civilians of African American descent.”

(Compl. ¶ 89.)

Thus, plaintiff fails to allege any specific facts
that would make his § 1981 claim remotely plausible.
Plaintiff offers no factual allegations to allow the court to
infer that defendant’s failure to pursue certain pre-trial
hearings, the subject of the “Constructive Notice to
Attorney,” was at all caused or motivated by racial
discrimination.

In addition, although plaintiff alleges in

conclusory fashion that defendant’s law practice routinely
discriminates against African American civilians, plaintiff

11

offers no facts to support this assertion.

Moreover, even

assuming plaintiff’s allegations are true, as the court does
for purposes of deciding this motion, they simply do not
relate to any alleged contract between plaintiff and
defendant.

Because plaintiff fails to plead any specific

factual allegations relating to the racially-motivated
impairment of a contract between plaintiff and defendant, the
court dismisses plaintiff’s cause of action under § 1981.
III. Plaintiff’s Third Cause of Action: the Trust Indenture
Act
Plaintiff’s third cause of action arises under the
Trust Indenture Act (“TIA”).

Plaintiff alleges defendant “is

liable under 15 U.S.C. §§ 77aaa through 15 U.S.C. §§ 77bbbb
for conspiring to violate claimant’s rights.”
101.)

(Compl. at ¶

Plaintiff seeks relief under § 77ppp, which provides in

part that “the right of any holder of any indenture security
to receive payment of the principal of and interest on such
indenture security . . . shall not be impaired or affected
without the consent of such holder, except as to a
postponement of an interest payment consented to as provided
in paragraph (2) of subsection (a) of this section.” 6

(Compl.

¶¶ 4-5.)

6

Plaintiff relies on statutory provision § 77ppp(b), but attributes
the quoted language to § 316(b) of the TIA. (See Compl. ¶ 4-5); 15 U.S.C.
§ 77ppp(b).

12

The TIA was “enacted because previous abuses by
indenture trustees had adversely affected the national public
interest and the interest of investors in notes, bonds and
debentures.”

Bluebird Partners, L.P. v. First Fid. Bank, N.A.

New Jersey, 85 F.3d 970, 974 (2d Cir. 1996) (internal
quotations and alteration omitted.)

Therefore, “[t]he Act is

“designed to vindicate a federal policy of protecting
investors.”

Id.

Additionally, “Section 316(b) ... proscribes

certain ... majority action clauses ... [and] expressly
prohibits use of an indenture that permits modification by
majority security holder vote of any core term of the
indenture, i.e., one affecting a security holder's right to
receive payment of the principal of or interest on the
indenture security.”

In re Bd. of Dirs. of Multicanal S.A.,

307 B.R. 384, 388-89 (Bankr. S.D.N.Y. 2004) (internal
quotations omitted).

Thus, the TIA concerns indenture

trustees, investors, and prohibiting improper clauses in
indentures.
Here, plaintiff has alleged no facts supporting his
cause of action under the TIA.

Neither plaintiff nor

defendant is an indenture trustee of the other, and the
plaintiff alleges no facts establishing that he falls within
the scope of protected investors contemplated by the statute.

13

Rather, plaintiff was proceeding to trial on various criminal
charges, and defendant was his court-appointed lawyer.
Additionally, plaintiff has not alleged any facts regarding
majority action clauses, improper use of an indenture, or
evidence of any indenture whatsoever.

In light of the failure

of plaintiff to allege any facts supporting his claim under
the TIA, the court must dismiss this claim. 7
IV.

State Law Claims
Plaintiff also raises several state law claims.

(See Compl. at 13-14.)

Under 28 U.S.C. § 1367, which governs

a federal court’s exercise of supplemental jurisdiction,
“[t]he district court may decline to exercise supplemental
jurisdiction over a claim . . . [if] the district court has
dismissed all claims over which it has original jurisdiction.”
28 U.S.C. § 1367(c)(3).

Here, plaintiff’s federal law claims

are dismissed for failure to state a claim under Rule
12(b)(6).

Even assuming there is only a remote possibility

that plaintiff could succeed on the merits of his state law
claims, the court, in its discretion, declines to exercise
supplemental jurisdiction over plaintiff’s state law claims.
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)
7
Plaintiff previously raised claims under the TIA in his prior
petitions before this court. Those claims were also dismissed. See Nelson
v. Hynes, et al., No. 13-CV-3447 (KAM), 2013 WL 5502901 (E.D.N.Y. Oct. 2,
2013); Nelson v. Thompson, et al., No. 14-CV-3414 (KAM), 2014 WL 3882322
(E.D.N.Y. Aug. 7, 2014).

14

(“[I]n the usual case in which all federal-law claims are
eliminated before trial, the balance of factors [of judicial
economy, convenience, fairness, and comity] will point toward
declining to exercise jurisdiction over the remaining statelaw claims.”); see also Warrne v. Fischl, 33 F. Supp. 2d. 171,
178 (E.D.N.Y. 1999) (declining to exercise supplemental
jurisdiction over state law legal malpractice claim where
federal claims were dismissed under Rule 12(b)(6)).
Accordingly, plaintiff’s state law claims are dismissed.
V. Futility of Amendment
The court declines to grant leave to plaintiff to
replead his claims, given that doing so would be futile for
the reasons stated herein.

Ruotolo v. City of New York, 514

F.3d 184, 191 (2d Cir. 2008) (citing Foman v. Davis, 371 U>S.
178, 182 (1962)) (leave to amend may properly be denied for
futility of amendment); In re American Exp. Co. Shareholder
Litig., 39 F.3d 395, 402 (2d Cir. 1994) (affirming district
court’s denial of leave to amend complaint where it was not
apparent plaintiffs could plead facts to state sufficient
allegation of proximate injury).

15

CONCLUSION
For the foregoing reasons, the court dismisses
plaintiff’s complaint in its entirety.

Although plaintiff

paid the filing fee, 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 purpose of an appeal.
369 U.S. 438, 444-45 (1962).

Coppedge v. United States,

The Clerk of Court is

respectfully requested to enter judgment in favor of
defendant, serve a copy of this Memorandum and Order and the
judgment on pro se plaintiff within two days of the date of
this order, and close this case.
SO ORDERED.
Dated:

Brooklyn, New York
September 10, 2014

_________/s/_______________
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

16