Morgan v. Perez et al

Filing 8

MEMORANDUM & ORDER: Plaintiff's 2 request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 is granted for the purpose of this Memorandum and Order. 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 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." 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 reas ons 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. SO ORDERED by Judge Margo K. Brodie, on 6/9/2017. W/Attachments: # 1 Appendix. (Copy of this Order and the attached copies of all unpublished decisions cited herein sent to pro se Plaintiff.) (Latka-Mucha, Wieslawa)

Pecou v. Hirschfeld, Not Reported in F.Supp.2d (2008)

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 Plaintiff's 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. Plaintiff's financial status qualifies
him to commence this action without prepayment of the
filing fees. See 28 U.S.C. § 1915(a)(1). Therefore, Plaintiff's
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 plaintiff's 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.

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

1

Pecou v. Hirschfeld, Not Reported in F.Supp.2d (2008)

*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 courtappointed 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, Plaintiff's 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

Footnotes

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.

End of Document

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

2

Garcia v. City of New York, Not Reported in F.Supp.2d (2013)

2013 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

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 .)

Germaine Garcia, Ossining, NY, pro se.
II. Discussion
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 Plaintiff's 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
Plaintiff's 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;

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

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

1

Garcia v. City of New York, Not Reported in F.Supp.2d (2013)

to read the plaintiff's 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,
Plaintiff's 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

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

2

Garcia v. City of New York, Not Reported in F.Supp.2d (2013)

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.
ofN.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 Plaintiff's 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

§ 1915A(b)(l). 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. Iqbal, 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)(l).

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)(l). 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

2

practice that would hold the City of New York liable.
Accordingly, this claim must be dismissed as it fails to state
a claim upon which relief may be granted. See 28 U.S.C.

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

Footnotes

1
2

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.)
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).

End of Document

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

3