Murdock v. Legal Aid Society, et al

Filing 51

MEMORANDUM & ORDER granting 37 Motion to Dismiss for Failure to State a Claim; granting 38 Motion to Dismiss for Failure to State a Claim; granting 46 Motion to Dismiss for Failure to State a Claim; granting 17 Motion to Dismiss for F ailure to State a Claim; granting 24 Motion to Dismiss for Failure to State a Claim. For the foregoing reasons, Defendants' motions to dismiss the Complaint (Docket Entries 17, 24, 37, 38, 46) are GRANTED, and Plaintiff's Section 1983 claims are DISMISSED WITH PREJUDICE. To the extent Plaintiff asserts legal malpractice claims under state law, such claims are DISMISSED WITHOUT PREJUDICE to refiling in state court. The Court certifies that pursuant to 28 U.S.C. § 1915(a)(3) th at any appeal from this Order would not be taken in good faith and in forma pauperis status is therefore DENIED for the purpose of any appeal. The Clerk of the Court is directed to mark this matter CLOSED and to mail a copy of this Memorandum and Order to pro se Plaintiff. So Ordered by Judge Joanna Seybert on 1/6/2015. C/M; C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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EDDIE MURDOCK,
Plaintiff,
-against-

MEMORANDUM & ORDER
14-CV-0508(JS)(SIL)

LEGAL AID SOCIETY; CINDY D’AMBRA;
P. SPIKE KAUFMAN; ASSIGNED COUNSEL
DEFENDERS PLAN OF NASSAU COUNTY;
GLENN F. HARDY; DEVANE AND GRODER;
JEFFREY GRODER; and KATHLEEN M. RICE,
NASSAU COUNTY DISTRICT ATTORNEY,
Defendants.
---------------------------------------X
APPEARANCES
For Plaintiff:
Eddie Murdock, pro se
#13003401
Nassau County Correctional Center
100 Carman Avenue
East Meadow, NY 11554
For Defendants
Legal Aid,
D’Ambra, and
Kaufman:

Assigned Counsel
Defenders Plan:

Hardy:

Gregg D. Weinstock, Esq.
Garbarini & Scher, P.C.
432 Park Avenue South
New York, NY 10016
John P. McEntee, Esq.
Farrell Fritz, P.C.
EAB Plaza
West Tower, 14th Floor
Uniondale, NY 11556
Andrew Seth Kowlowitz, Esq.
Eric D. Mercurio, Esq.
Furman Kornfeld & Brennan LLP
61 Broadway, 26th Floor
New York, NY 10006

Devane and Groder,
and Groder:

Michael Anthony Miranda, Esq.
Brian S. Condon, Esq.
Miranda Sambursky Slone
Sklarin Verveniotis LLP
240 Mineola Blvd.
Mineola, NY 11501

DA Rice:

Thomas Lai, Esq.
Nassau County Attorney’s Office
1 West Street
Mineola, NY 11501

SEYBERT, District Judge:
Plaintiff

Eddie

Murdock,

currently

incarcerated

and

proceeding pro se, commenced this action on January 23, 2014
pursuant to 42 U.S.C. § 1983 against the Nassau County District
Attorney, Kathleen M. Rice (“District Attorney Rice”), and his
former

criminal

defense

attorneys--Legal

Aid

Society,

Cindy

D’Ambra, P. Spike Kaufman, Assigned Counsel Defenders Plan of
Nassau County, Glenn F. Hardy, Devane and Groder, and Jeffrey
Groder

(collectively,

“Defendants”).

Plaintiff

claims

that

Defendants deprived him of his rights to due process and a speedy
trial in connection with a criminal case against him in New York
State Supreme Court.

Defendants move to dismiss the Complaint for

failure

claim

to

state

Procedure 12(b)(6).

a

pursuant

to

Federal

Rule

(Docket Entries 17, 24, 37, 38, 46.)

of

Civil

For the

following reasons, Defendants’ motions to dismiss are GRANTED.

2

BACKGROUND1
On May 6, 2013, Plaintiff was arrested and charged with
grand larceny in Nassau County.
Plaintiff

contends

that

his

(Compl. at 52.)
court-appointed

In this action,
criminal

defense

attorneys violated his rights to due process and a speedy trial by
consenting, without his knowledge and/or consent, to adjournments
requested by District Attorney Rice.

(Compl. at 5-6.)

He claims

that this conduct constitutes a conspiracy between his attorneys
and District Attorney Rice to deprive him of his constitutional
rights in violation of 42 U.S.C. § 1983.

(Compl. at 5-6.)

The

Court also liberally construes the Complaint to assert legal
malpractice claims under state law against Plaintiff’s former
attorneys.
The
declaration

Complaint

that

“the

seeks:

(1)

monetary

policies

and

practices

damages;
[of

(2)

a

adjourning

Plaintiff’s criminal case] violate [his] due process rights” and
“constitute a conspiracy against [his] due process rights”; and
(3) an injunction “enjoining[,] prohibiting[,] and restraining
defendants from waiving [his] rights . . . without his knowledge
or consent . . . .”

(Compl. at 8-9.)

Defendants all move to

The following facts are taken from the Complaint and are
presumed to be true for the purposes of this Memorandum and
Order.
1

The page numbers of the Complaint are those supplied by the
Electronic Case Filing system.
2

3

dismiss the Complaint for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6).

(Docket Entries 17, 24,

37, 38, 46.)
DISCUSSION
The

Court

will

first

address

the

applicable

legal

standard before turning to Defendants’ motions.
I.

Legal Standard
In deciding a Rule 12(b)(6) motion to dismiss, the Court

applies a “plausibility standard,” which is guided by “[t]wo
working principles.”

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.

Ct. 1937, 173 L. Ed. 2d 868 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007);
accord Harris v. Mills, 572 F.3d 66, 71–72 (2d Cir. 2009).

First,

although the Court must accept all allegations as true, this
“tenet”

is

“inapplicable

to

legal

conclusions;”

thus,

“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
556 U.S. at 678; accord Harris, 572 F.3d at 72.

Iqbal,

Second, only

complaints that state a “plausible claim for relief” can survive
a Rule 12(b)(6) motion to dismiss.

Iqbal, 556 U.S. at 679.

Determining whether a complaint does so is “a context-specific
task that requires the reviewing court to draw on its judicial
experience and common sense.”

Id.; accord Harris, 572 F.3d at 72.

4

II.

Plaintiff’s Section 1983 Claims
Plaintiff’s

former

defense

attorneys

argue

that

Plaintiff’s Section 1983 claims against them should be dismissed
because they are not state actors.

(See Legal Aid Br., Docket

Entry 17-3, at 6-7; Devane and Groder Br., Docket Entry 26, at 25; Hardy Br., Docket Entry 38-1, at 11-13; Assigned Counsel Br.,
Docket Entry 46-3, at 3-4.)

District Attorney Rice contends that

Plaintiff’s Section 1983 claim against her should be dismissed
because she is entitled to absolute prosecutorial immunity.
Br., Docket Entry 37-3, at 6.)
A.

(Rice

The Court agrees with Defendants.

Plaintiff’s Attorneys
Plaintiff’s

Section

1983

claims

against

his

former

defense attorneys fail as a matter of law because they are not
state actors.

Section 1983 states:

[e]very person who, under color of any
statute, ordinance, regulation, custom, or
usage, of any State . . . subjects, or causes
to be subjected, any citizen of the United
States ... to the deprivation of any rights,
privileges, or immunities secured by the
Constitution and laws, shall be liable to the
party injured . . . .
42 U.S.C. § 1983.

To state a claim under Section 1983, a plaintiff

must “‘allege that (1) the challenged conduct was attributable at
least in part to a person who was acting under color of state law
and (2) the conduct deprived the plaintiff of a right guaranteed
under the Constitution of the United States.’”

5

Rae v. Cnty. of

Suffolk, 693 F. Supp. 2d 217, 223 (E.D.N.Y. 2010) (quoting Snider
v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999)).
“Private parties are not proper defendants in a Section
1983 action unless the private parties were acting under color of
state law.”

Lee v. Law Office of Kim & Bae, P.C., 530 F. App’x 9,

9 (2d Cir. 2013) (citations omitted).

It is well settled that

defense attorneys, even if they are court-appointed or are public
defenders, do not act under color of state law when performing
traditional functions of counsel.

Polk Cnty. v. Dodson, 454 U.S.

312, 325, 102 S. Ct. 445, 453, 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) (“[A] court-appointed criminal defense attorney does
not

act

under

client . . . .”);

color

of

state

law

when

representing

a

Delaraosa v. Serita, No. 14-CV-0737, 2014 WL

1672557, at *3 (E.D.N.Y. Apr. 28, 2014) (“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.”); Shorter v.
Rice, No 12–CV–0111, 2012 WL 1340088, at *4 (E.D.N.Y. Apr. 10,
2012) (“[I]t is axiomatic that neither public defenders, such as
Legal Aid attorneys, nor court-appointed counsel, nor private
attorneys, act under the color of state law merely by virtue of
6

their position.”).

Thus, Plaintiff’s Section 1983 claims against

his former defense attorneys fail as a matter of law, and these
claims are dismissed.
B.

District Attorney Rice
Plaintiff’s

Section

1983

claims

against

District

Attorney Rice also fail as a matter of law because prosecutors are
entitled to absolute immunity from liability in suits seeking
monetary damages for acts related to prosecutorial duties.

Burns

v. Reed, 500 U.S. 478, 486, 111 S. Ct. 1934, 114 L. Ed. 2d 547
(1991) (“[P]rosecutors are absolutely immune from liability under
§ 1983 for their conduct in initiating a prosecution and in
presenting the State’s case . . . .” (internal quotation marks and
citation omitted)); Shmueli v. City of N.Y., 424 F.3d 231, 236 (2d
Cir. 2005) (“It is by now 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.” (internal quotation marks and citation
omitted)); Dellarosa, 2014 WL 1672557, at *4 (dismissing Section
1983 claim for money damages against assistant district attorney
based on absolute immunity); Shorter, 2012 WL 1340088, at *3
(same).
Here, the challenged conduct of District Attorney Rice-i.e,

requesting

adjournments

of

Plaintiff’s

criminal

case--

unquestionably falls within the scope of her prosecutorial duties.
7

Accordingly,
immunity

with

District

Attorney

respect

to

Rice

Plaintiff’s

is

entitled

claims

to

absolute

seeking

monetary

damages under Section 1983, and these claims are dismissed.
III. Plaintiff’s Section 1983 Conspiracy Claims
As noted, Plaintiff also alleges that his former defense
attorneys and District Attorney Rice engaged in a conspiracy in
violation of Section 1983.

Plaintiff’s conspiracy claims also

fail as a matter of law.
“[A] private actor acts under color of state law when
the private actor is a willful participant in joint activity with
the State or its agents.”

Lee, 530 F. App’x at 9.

To state a

Section 1983 conspiracy claim, a plaintiff must allege: “(1) an
agreement between two or more state actors or an agreement between
a state actor and private party; (2) concerted acts to inflict an
unconstitutional injury; and (3) an overt act done in furtherance
of the goal of causing damages.”

Dellarosa, 2014 WL 1672557, at

*4 (internal quotation marks and citations omitted).
A conspiracy claim under Section 1983 cannot exist where
the alleged state actors have absolute immunity for the underlying
conduct.
1995)

Pinaud v. Cnty. of Suffolk, 52 F.3d 1139, 1148 (2d Cir.

(“[S]ince

regardless

of

absolute

motivation,

immunity

covers

associated

with

virtually
[the

all

acts,

prosecutor’s]

function as an advocate, when the underlying activity at issue is
covered by absolute immunity, the plaintiff derives no benefit
8

from

alleging

a

conspiracy.”

(internal

quotation

marks

citations omitted) (second alteration in original)).

and

Here, as

explained above, District Attorney Rice is entitled to absolute
immunity for the alleged underlying conduct.

Plaintiff’s defense

attorneys therefore had no state actor with whom they could have
conspired, rending Plaintiff’s conspiracy claim deficient as a
matter of law.
Section

1983

See Dellarosa, 2014 WL 1672557, at *4 (dismissing
conspiracy

claim

because

the

assistant

district

attorney was immune from suit and the criminal defense attorney
therefore had no “state actors with whom [he] could have conspired
to deprive Plaintiff of his Constitutional rights”).

Plaintiff’s

Section 1983 conspiracy claims therefore fail as a matter of law
and are dismissed
IV.

Plaintiff’s Claims for Declaratory and Injunctive Relief
Against District Attorney Rice
Finally, although District Attorney Rice is entitled to

absolute immunity from Plaintiff’s claim for monetary damages,
this

immunity

does

not

extend

to

Plaintiff’s

declaratory and injunctive relief against her.

request

for

See Shmeuli, 424

F.3d at 239 (“[A]n official’s entitlement to absolute immunity
from a claim for damages, however, does not bar the granting of
injunctive

relief,

or

of

other

equitable

quotation marks and citations omitted)).
Court

has

dismissed

Plaintiff’s

9

relief.”

(internal

Nonetheless, because the

claims

against

his

former

attorneys and his monetary claims against District Attorney Rice,
the Court must also dismiss Plaintiff’s claims for declaratory and
injunctive

relief

against

District

Attorney

Rice.

Plaintiff

specifically seeks a declaration that “the policies and practices
[of adjourning Plaintiff’s criminal proceedings] violate [his] due
process rights” and “constitute a conspiracy against [his] due
process rights . . . .”

(Compl. at 8.)

The Court reads the

Complaint to seek an injunction prohibiting this conduct.
at 8.)
Court

(Compl.

However, in seeking this relief, Plaintiff only asks the
“to

recognize

a

past

wrong,

which,

in

the

context

of

declaratory relief, does not in itself ‘amount to that real and
immediate

threat

controversy.’”

of

injury

necessary

to

make

out

a

case

or

Morales v. City of N.Y., --- F. Supp. 3d ----,

2014 WL 4967207, at *5 (S.D.N.Y. Oct. 6, 2014) (quoting City of
Los Angeles v. Lyons, 461 U.S. 95, 103, 103 S. Ct. 1660, 75 L. Ed.
2d 675 (1983)); see also LeDuc v. Tilley, No. 05–CV–157, 2005 WL
1475334, at *7 (D. Conn. 2005) (dismissing a claim for declaratory
relief against a defendant with absolute immunity when the claim
for declaratory relief was “intertwined” with the claim for money
damages); Ippolito v. Meisel, 958 F. Supp. 155, 165 (S.D.N.Y. 1997)
(“[C]ourts are not obliged to entertain actions for declaratory
judgment not seeking prospective relief but merely declaring past
wrongs.”).

Accordingly, Plaintiff’s claims for declaratory and

10

injunctive relief against District Attorney Rice also must be
dismissed.
V.

Leave to Amend
The Second Circuit has stated that “[w]hen a motion to

dismiss is granted, the usual practice is to grant leave to amend
the complaint.”

Hayden v. Cnty. of Nassau, 180 F.3d 42, 53 (2d

Cir. 1999); see also FED. R. CIV. P. 15(a)(2) (“The court should
freely

give

leave

[to

amend]

when

justice

so

requires.”).

“Nonetheless, courts may deny leave to replead where amendment
qualifies as futile.”

Herbert v. Delta Airlines, No. 12–CV–1250,

2014 WL 4923100, at *5 (E.D.N.Y. Sept. 30, 2014) (citing Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)).

Here, because

Plaintiff’s claims fail a matter of law, there is no possibility
that he can state plausible Section 1983 claims against Defendants.
Thus,

any

attempt

to

replead

would

be

futile

and

therefore will not grant Plaintiff leave to replead.

the

Court

See Cuoco v.

Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (“The problem with [the
pro

se

plaintiff’s]

causes

pleading will not cure it.

of

action

is

substantive;

better

Repleading would thus be futile.

a futile request to replead should be denied.”).

Such

Plaintiff’s

claims are DISMISSED WITH PREJUDICE.
VI.

Legal Malpractice Claim
Finally,

malpractice

claims

to

the

under

extent
state
11

Plaintiff
law,

the

asserts
Court

legal

declines

supplemental jurisdiction over them.
WITHOUT PREJUDICE.

These claims are DISMISSED

See Tops Marks, Inc. v. Quality Markets, Inc.,

142 F.3d 90, 103 (2d Cir. 1998) (“[W]hen all federal claims are
eliminated in the early stages of litigation, the balance of
factors

generally

favors

declining

to

exercise

pendent

jurisdiction over remaining state law claims and dismissing them
without prejudice.” (emphasis in original)).
CONCLUSION
For

the

foregoing

reasons,

Defendants’

motions

to

dismiss the Complaint (Docket Entries 17, 24, 37, 38, 46) are
GRANTED, and Plaintiff’s Section 1983 claims are DISMISSED WITH
PREJUDICE.

To the extent Plaintiff asserts legal malpractice

claims under state law, such claims are DISMISSED WITHOUT PREJUDICE
to refiling in state court.
The

Court

certifies

that

pursuant

to

28

U.S.C.

§ 1915(a)(3) that any appeal from this Order would not be taken in
good faith and in forma pauperis status is therefore 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).

12

The Clerk of the Court is directed to mark this matter
CLOSED and to mail a copy of this Memorandum and Order to pro se
Plaintiff.

SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

January
6 , 2015
Central Islip, NY

13