Hayes v. Barnell
OPINION & ORDER granting 2 Motion for Leave to Proceed in forma pauperis. SO ORDERED that plaintiffs application to proceed in forma pauperis is granted and the complaint is sua sponte dismissed in its entirety pursuant to 28 U.S.C. §§ 1 915(e)(2)(B)(ii) and 1915A(b). The Clerk of the Court shall close this case and, pursuant to Rule 77(d)(1) of the Federal Rules of Civil Procedure, serve notice of entry of this Order upon plaintiff in accordance with Rule 5(b) of the Federal Rules o f Civil Procedure. 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. CM to pro se plaintiff. Ordered by Judge Sandra J. Feuerstein on 4/20/2015. (Florio, Lisa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
4/20/2015 1:40 pm
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
OPINION AND ORDER
MR. STEVEN BARNWELL, ESQ.,
FEUERSTEIN, District Judge:
On November 5, 2014, incarcerated pro se plaintiff John Hayes (“plaintiff”) filed a
complaint against his court appointed attorney, defendant Steven Barnwell, Esq. (“Barnwell”),
pursuant to 42 U.S.C. § 1983, with an application to proceed in forma pauperis.
A review of the declaration in support of the application to proceed in forma pauperis
establishes that plaintiff’s financial status qualifies him to commence this action without
prepayment of the filing fee. See 28 U.S.C. §§ 1914(a); 1915(a)(1). Therefore, plaintiff’s
request to proceed in forma pauperis is granted. However, for the reasons that follow, the
complaint is sua sponte dismissed.
The complaint alleges that during his arraignment, plaintiff advised the state court that he
wanted to testify before the grand jury and that he had not waived any related constitutional
rights. Compl. p. 5. Thereafter, Barnwell advised plaintiff that he had waived plaintiff’s grand
jury rights. Id. As a result of the waiver, plaintiff claims he suffered psychological torment,
All material allegations in the complaint are assumed to be true for the purposes of this Order, see,
e.g., Rogers v. City of Troy, New York, 148 F.3d 52, 58 (2d Cir. 1998) (in reviewing a pro se
complaint for sua sponte dismissal, a court is required to accept the material allegations in the
complaint as true).
emotional abuse and lost a significant amount of weight, for which he seeks damages in the sum
of five million dollars ($5,000,000). Id. at ¶¶ IV.A.; V.
In Forma Pauperis Application
Upon review of plaintiff’s declaration in support of his application to proceed in forma
pauperis, the Court finds that 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.
Application of 28 U.S.C. § 1915
Under the in forma pauperis statute, 28 U.S.C. § 1915(e)(2)(B), a district court must
dismiss a complaint if it is frivolous or malicious, fails to state a claim upon which relief may be
granted or seeks monetary relief from a defendant who is immune from such relief.
It is axiomatic that district courts are required to read pro se complaints liberally,
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)); Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013), and to construe them “to raise the
strongest arguments that they suggest.” Gerstenbluth v. Credit Suisse Securities (USA) LLC, 728
F.3d 139, 142-43 (2d Cir. 2013) (quotations and citations omitted). Moreover, at the pleadings
stage of the proceeding, the Court must assume the truth of “all well-pleaded, nonconclusory
factual allegations in the complaint.” Harrington v. Cnty. of Suffolk, 607 F.3d 31, 33 (2d Cir.
2010); see also Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
Nevertheless, a complaint must plead sufficient facts “to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The pleading
of specific facts is not required; rather a complaint need only give the defendant “fair notice of
what the . . . claim is and the grounds upon which it rests.” Erickson, 551 U.S. at 93 (quotations
and citation omitted); see also Anderson News, LLC v. Am. Media, Inc., 680 F.3d 162, 182 (2d
Cir. 2012), cert. denied by Curtis Circulation Co. v. Anderson News, LLC, 133 S. Ct. 846 (2013)
(accord). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the
elements of a cause of action will not do.’ ” Ashcroft, 556 U.S. at 678 (quoting Twombly, 550
U.S. at 555). The plausibility standard requires “more than a sheer possibility that a defendant
has acted unlawfully.” Ashcroft, 556 U.S. at 678; see also In re Amaranth Natural Gas
Commodities Litig., 730 F.3d 170, 180 (2d Cir. 2013).
Tile 42 U.S.C. § 1983 provides, in relevant part:
Every 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 . . . .
“Section 1983 provides a cause of action against any person who deprives an individual of
federally guaranteed rights ‘under color’ of state law.” Filarsky v. Delia, 132 S. Ct. 1657, 1661
(2012). Thus, to state a § 1983 claim, 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)); see also Rehberg v. Paulk, 132 S. Ct. 1497 (2012).
Although § 1983 liability may be imposed only upon wrongdoers “who carry a badge of
authority of a State and represent it in some capacity, whether they act in accordance with their
authority or misuse it,” Nat’l Collegiate Athletic Ass’n. v. Tarkanian, 488 U.S. 179, 191 (1988)
(quotations and citation omitted); see also Hafer v. Melo, 502 U.S. 21, 28 (1991) (“Congress
enacted §1983 to enforce provisions of the Fourteenth Amendment against those who carry a
badge of authority of a State and represent it in some capacity, whether they act in accordance
with their authority or misuse it.”) (quotations and citations omitted)), “[a] private actor may be
liable under § 1983 . . . if there is a sufficiently close nexus between the State and the challenged
action that seemingly private behavior may be fairly treated as that of the State itself.” Sykes v.
Bank of Am., 723 F.3d 399, 406 (2d Cir. 2013) (quotations, internal quotations and citations
omitted); see also Fabrikant v. French, 691 F.3d 193, 206-07 (2d Cir. 2012) (“Conduct that is
formally ‘private’ may become so entwined with governmental policies or so impregnated with a
governmental character that it can be regarded as governmental action. . . . [T]here must be such
a close nexus between the state and the challenged action that the state is responsible for the
specific conduct of which the plaintiff complains.”) (quotations, alterations, emphasis and
citations omitted)). “Anyone whose conduct is fairly attributable to the state can be sued as a
state actor under § 1983.” Filarsky, 132 S. Ct. at 1661 (quotations and citation omitted); see also
Fabrikant, 691 F.3d at 207 (“The fundamental question . . . is whether the private entity’s
challenged actions are ‘fairly attributable’ to the state.”) (quoting Rendell-Baker v. Kohn, 457
U.S. 830, 838 (1982)). To determine whether private conduct amounts to state action, three tests
For the purposes of section 1983, the actions of a nominally private entity are
attributable to the state . . . (1) [when] the entity acts pursuant to the coercive
power of the state or is controlled by the state (‘the compulsion test’); (2) when
the state provides significant encouragement to the entity, the entity is a willful
participant in joint activity with the state, or the entity’s functions are entwined
with state policies (‘the joint action test’ or ‘close nexus test’); or (3) when the
entity has been delegated a public function by the state (‘the public function test’).
Fabrikant, 691 F.3d at 207 (quoting Sybalski v. Indep. Grp. Home Living Program, Inc., 546
F.3d 255, 257 (2d Cir. 2008) (alteration in original)).
A claim for relief under § 1983 must allege facts sufficient to establish that the defendant
acted under color of state “statute, ordinance, regulation, custom or usage.” 42 U.S.C. § 1983.
Private attorneys, whether court appointed or privately retained, are generally not liable under §
1983. See Rodriguez v. Weprin, 116 F.3d 62, 65-66 (2d Cir. 1997) (“[I]t is well-established that
court-appointed attorneys performing a 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.”)
(citing Housand v. Heiman, 594 F.2d 923, 924-25 (2d Cir. 1979)); accord Polk Cnty. v. Dodson,
454 U.S. 312, 325 (1981) (public defenders do not act under color of state law).
“Like the state-action requirement of the Fourteenth Amendment, the under-color-ofstate-law element of § 1983 excludes from its reach merely private conduct, no matter how
discriminatory or wrongful.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999)
(internal quotation marks and citations omitted). Plaintiff alleges no facts from which the Court
can reasonably find that the challenged conduct “may be fairly treated as that of the State itself.”
Sykes, 723 F.3d at 406. Thus, Barnwell is not a state actor for the purposes of § 1983 and,
accordingly, there is no state action and plaintiff’s § 1983 claim against Barnwell is dismissed
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a claim.
For the reasons set forth above, plaintiff’s application to proceed in forma pauperis is
granted and the complaint is sua sponte dismissed in its entirety pursuant to 28 U.S.C. §§
1915(e)(2)(B)(ii) and 1915A(b). The Clerk of the Court shall close this case and, pursuant to
Rule 77(d)(1) of the Federal Rules of Civil Procedure, serve notice of entry of this Order upon
plaintiff in accordance with Rule 5(b) of the Federal Rules of Civil Procedure.
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 (1962).
Dated: April 20, 2015
Central Islip, New York
Sandra J. Feuerstein, U.S.D.J.
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