Cooper v. Barnett et al
Filing
11
MEMORANDUM & ORDER granting 2 Motion for Leave to Proceed in forma pauperis; For the reasons set forth above, Plaintiff's application to proceed in forma pauperis is GRANTED, however the Complaint is sua sponte DISMISSED WITH PREJUDICE for f ailure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 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 any appeal. The Clerk of the Court is directed to mail a copy of this Order to Plaintiff and to mark this case CLOSED. So Ordered by Judge Joanna Seybert on 7/30/2015. C/M (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
WARREN COOPER,
Plaintiff,
MEMORANDUM & ORDER
15-CV-1498(JS)(ARL)
-againstMITCHELL BARNET, Attorney at Law,
and JUDGE JERLD [SIC] CATER [SIC],
Defendants.
----------------------------------X
APPEARANCES
For Plaintiff:
Warren Cooper, pro se
15-A-1088
Sing Sing Correctional Facility
354 Hunter st.
Ossining, NY 10562
For Defendants:
No appearances.
SEYBERT, District Judge:
On March 16, 2015, incarcerated pro se plaintiff Warren
Cooper (“Plaintiff”) filed an in forma pauperis Complaint in this
Court pursuant to 42 U.S.C. § 1983 (“Section 1983”) against Michael
Barnet, Esq. (“Barnet”), and Judge Jerald Carter, Acting New York
State Supreme Court Judge, Nassau County (“Judge Carter” and
together, “Defendants”), accompanied by an application to proceed
in forma pauperis.
Upon
review
of
the
declaration
in
support
of
the
application to proceed in forma pauperis, the Court finds that
Plaintiff is qualified to commence this action without prepayment
of the filing fee.
See 28 U.S.C. § 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 WITH PREJUDICE for failure to state a claim pursuant to
28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1).
BACKGROUND1
Plaintiff’s sparse handwritten Complaint, submitted on a
Section 1983 complaint form, alleges that his criminal defense
attorney did not adequately represent him in the underlying state
court criminal case and that the presiding judge, Judge Carter,
“never ruled in my faver [sic].”
(Compl. at 6-7.)
The Statement
of Facts, in its entirety, reads as follows:
My rights was violated on the date of 3/26/15
I spoke to my lawyer and mu Judge whos name is
Jerld Carter on the record. About why i don’t
have any witness on my behalf dorning trail
witch is my right by law. Allso all the photo
evidance of the crime sceen or photo property
was never given to me before trail so i could
study my case only some of the paper work was
given to me witch is my right to have all my
paper work before trail in trail but not
afther trail is over or afther i have takeing
a copeout. As for my lawyer he said on the
record that he didn’t have to do anything it’s
the da’s job to make there case and that is
not true it’s his job to make a representation
on my behalf. And I never seen the property
witch was stolen so everything I said my
lawyer didn’t do is all a part of my rights
witch was violated . . .
i am locked up for a burglery charge I didn’t
do. What they siod it was my lawyers job to
fight for me. He said on the record he didn’t
have to do anything you don’t say that on
record about your clinte i know then my life
1
The following facts are taken from Plaintiff’s Complaint and
are presumed to be true for the purposes of this Memorandum and
Order.
2
was in his hands. not only that i need to get
a witness on my behalf no one made her show up
and i never got all my paper work at trail my
photo’s or missing page so how could i study
my case the judge never ruled in my faver so I
am putting a claim on that to because this is
my right i just wrote a brief letter to let
him know what is going on. I need your help
on this my life is at the hands of the court
for something thay said i did this was not a
fair trail i am scared to speak up for my self
because i don’t want to get hurt or more time.
thank you all this happen at trail 2/21/15 to
2/26/15 everything is on the record and i
wrote a letter to my judge.
thank you.
that’s my prove.2
(Compl. ¶ IV, and at 6-8.) For relief, Plaintiff demands eleven
million dollars. (Compl. ¶ V.)
DISCUSSION
I.
In Forma Pauperis Application
Upon review of Plaintiff’s declaration in support of the
application to proceed in forma pauperis, the Court finds that
Plaintiff is qualified 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.
II.
Application of 28 U.S.C. § 1915
Section 1915 of Title 28 requires a district court to
dismiss an in forma pauperis complaint if the action is frivolous
or malicious, fails to state a claim upon which relief may be
2
Plaintiff’s allegations have been reproduced here exactly as
they appear in the Complaint. Errors in spelling, punctuation,
and grammar have not been corrected or noted.
3
granted, or seeks monetary relief against a defendant who is immune
from
such
1915A(b).
relief.
See
28
U.S.C.
§§
1915(e)(2)(B)(i)-(iii),
The Court is required to dismiss the action as soon as
it makes such a determination.
See id. § 1915A(b).
Courts are obliged to construe the pleadings of a pro se
plaintiff liberally. See Sealed Plaintiff v. Sealed Defendant, 537
F.3d 185, 191 (2d Cir. 2008); McEachin v. McGuinnis, 357 F.3d 197,
200 (2d Cir. 2004).
However, 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,
1974, 167 L. Ed. 2d 929 (2007).
“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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.
Ct. 1937, 173 L. Ed. 2d 868 (2009) (citations omitted).
The
plausibility standard requires “more than a sheer possibility that
a defendant has acted unlawfully.”
Id. at 678; accord Wilson v.
Merrill Lynch & Co., Inc., 671 F.3d 120, 128 (2d Cir. 2011).
While
“‘detailed factual allegations’” are not required, “[a] pleading
that offers ‘labels and conclusions’ or ‘a formulaic recitation of
the elements of a cause of action will not do.’”
at
678 (quoting Twombly, 550 U.S. at 555).
4
Iqbal, 556 U.S.
III.
Section 1983
Section 1983 provides that
[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; accord Rehberg v. Paulk, --- U.S. ----, 132 S.
Ct. 1497, 1501–02, 182 L. Ed. 2d 593 (2012).
under
Section
1983,
a
plaintiff
must
To state a claim
“‘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.’”
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)).
A.
Claim Against Barnet
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 RendellBaker v. Kohn, 457 U.S. 830, 837, 102 S. Ct. 2764, 2769, 73 L. Ed.
2d 418 (1982)).
Accordingly, “a litigant claiming that his
constitutional rights have been violated must first establish that
the challenged conduct constitutes state action.” Flagg v. Yonkers
Sav. & Loan Ass’n, 396 F.3d 178, 186 (2d Cir. 2005) (internal
5
quotation marks and citation omitted); Fabrikant v. French, 691
F.3d 193, 206 (2d Cir. 2012) (“A plaintiff pressing a claim of
violation of his constitutional rights under Section 1983 is
. . . required to show state action.” (internal quotation marks and
citation omitted)). Indeed, “the under-color-of- state-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, 119 S. Ct. 977, 985, 143 L. Ed. 2d 130
(1999) (internal quotation marks and citation omitted).
Private actors, such as Barnet, may be considered to be
acting under the color of state law for purposes of § 1983 if the
private actor was a “‘willful participant in joint activity with
the State or its agents.’”
Ciambriello v. Cnty. of Nassau, 292
F.3d 307, 324 (2d Cir. 2002) (quoting Adickes v. S.H. Kress & Co.,
398 U.S. 144, 152, 90 S. Ct. 1598, 1606, 26 L. Ed. 2d 142 (1970)).
Section 1983 liability may also extend to a private party who
conspires
with
a
state
constitutional rights.
actor
to
violate
a
plaintiff’s
Ciambriello, 292 F.3d at 323-24.
In order
to state a Section 1983 conspiracy claim, a plaintiff must allege:
“(1) an agreement between a state actor and a private party; (2) to
act in concert to inflict an unconstitutional injury; and (3) an
overt act done in furtherance of that goal causing damages.”
Id.
at 324-25 (citing Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir.
1999)).
6
Here, Plaintiff does not allege whether Barnet was his
privately retained defense counsel or whether Barnet was appointed
by the Court to defend Plaintiff in the underlying criminal case.
Whether or not an attorney is assigned by the Court is immaterial
because attorneys generally do not act under color of state law.
Indeed, it is well-established that attorneys, whether with the
Legal Aid Society, court-appointed, or privately retained, are
generally not state actors for purposes of Section 1983.
See,
e.g., Polk County v. Dodson, 454 U.S. 312, 325, 102 S. Ct. 445,
453, 70 L. Ed. 2d 509 (1981); see also 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 [a] defendant [in a criminal proceeding] do
not act ‘under color of state law’ and therefore are not subject to
suit under 42 U.S.C. § 1983.”) (citations omitted).
Additionally, Plaintiff has not alleged that Barnet acted
jointly with a state actor or conspired with a state actor to
deprive Plaintiff of some constitutional right.
Thus, in the
absence of any state action, Plaintiff’s Section 1983 claim against
Barnet is not plausible as a matter of law.
Ciambriello, 292 F.3d
at 325. Accordingly, Plaintiff’s Section 1983 claim against Barnet
is DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. §§ 1915(e)(2)(B)
(ii); 1915A(b)(1).
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B.
Claim Against Judge Carter
“It is well settled that judges generally have absolute
immunity from suits for money damages for their judicial actions.”
Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir. 2009) (citations
omitted).
The Supreme Court instructs that this immunity is “from
suit, not just from ultimate assessment of damages.”
Mireles v.
Waco, 502 U.S. 9, 11, 112 S. Ct. 286, 288, 116 L. Ed. 2d 9 (1991)
(citation omitted).
Here, the only relief sought by Plaintiff against Judge
Carter is a monetary damages award.
In addition, the only conduct
by Judge Carter challenged by Plaintiff is that “the Judge never
ruled in my faver.”
(Compl. at 6-7.)
Presiding over a criminal
trial and making rulings during such proceedings are clearly
judicial actions which fall squarely within the scope of judicial
immunity.
Accordingly, even liberally construing the Complaint,
Plaintiff has not alleged a plausible claim against Judge Carter
and it is thus DISMISSED WITH PREJUDICE pursuant to 28 U.S.C.
§§ 1915 (e)(2)(B)(ii); 1915A(b)(1).
C.
Leave to Amend
Given
the
Second
Circuit’s
guidance
that
a
pro
se
complaint should not be dismissed without leave to amend unless
amendment would be futile, Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d
Cir. 2000), the Court has carefully considered whether leave to
amend is warranted here.
Because the defect in Plaintiff’s claims
8
is substantive and would not be cured if afforded an opportunity to
amend, leave to amend the Complaint is DENIED.
However, insofar as Plaintiff seeks to challenge his
state court criminal conviction, the dismissal of the instant
Complaint is WITHOUT PREJUDICE to his filing a Petition for a Writ
of Habeas Corpus pursuant to 28 U.S.C. § 2254.
Plaintiff is
cautioned that a Petition for a Writ of Habeas Corpus has certain
prerequisites to filing in this Court, such as the exhaustion of
Constitutional claims in state court.
CONCLUSION
For the reasons set forth above, Plaintiff’s application
to proceed in forma pauperis is GRANTED, however the Complaint is
sua sponte DISMISSED WITH PREJUDICE for failure to state a claim
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 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
any appeal.
See Coppedge v. United States, 369 U.S. 438, 444-45,
82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).
The Clerk of the Court is directed to mail a copy of this
Order to Plaintiff and to mark this case CLOSED.
SO ORDERED.
Dated:
July
30 , 2015
Central Islip, NY
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
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