Baptiste v. Macedonio et al

Filing 8

ORDER - For the forgoing reasons, the plaintiff's 2 application to proceed in forma pauperis is granted, but plaintiff's claims are sua sponte dismissed for failure to allege a plausible claim for relief pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii-iii), 1915A(b). The Clerk of the Court is directed to mail a copy of this Order to the plaintiff at his last known address and 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 (1962). SEE ATTACHED ORDER for details. So Ordered by Judge Joan M. Azrack on 3/23/2017. c/m to pro se Plaintiff. (Coleman, Laurie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ANTHONY H. BAPTISTE, #453207,

Plaintiff,
ORDER
17-CV-00212 (JMA)(SIL)

-againstROBERT A. MACEDONIO, GEORGE DUNCAN,
Defendants.
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AZRACK, District Judge:

On January 11, 2017, incarcerated pro se plaintiff Anthony Baptiste filed
a in forma pauperis complaint against his defense attorneys in an underlying state court criminal
case, Robert A. Macedonio (“Macedonio”) and George Duncan (“Duncan” and together,
“defendants”) pursuant to 42 U.S.C. § 1983 (“Section 1983”) alleging a deprivation of his
constitutional rights. The Court grants plaintiff’s request to proceed in forma pauperis but, for the
reasons that follow, sua sponte dismisses the complaint pursuant to 28 U.S.C. §§
1915(e)(2)(B)(ii-iii), 1915A(b).
I.

BACKGROUND 1

Plaintiff’s handwritten complaint was submitted on the Court’s Section 1983 complaint
form with an additional fifteen pages and seeks to challenge the adequacy of the representation
provided by his privately retained attorneys during an on-going state court criminal prosecution in
Suffolk County Court - Criminal Term under case number 00396B-2016. 2 (Compl. ¶ II and
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All material allegations in the complaint are assumed to be true for the purpose 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).
2

See https://iapps.courts.state.ny.us/webcrim (last visited on February 15, 2017).

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attachments thereto.) Plaintiff alleges, inter alia, that his attorneys did not file motions on his
behalf, shared information about the case with plaintiff’s parents, and tried to coerce plaintiff to
accept a guilty plea. (Id.) As a result, plaintiff claims to have suffered “stress” from being kept
“in the dark” about his case. (Id. ¶ II.A.) Plaintiff claims he “was psychologically traumatized
and depressed” and seeks to recover a damages award in total sum of $2,535,000. (Id. ¶ III.)
II.
A.

DISCUSSION

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 fee. 28 U.S.C. § 1915(a)(1). Therefore, plaintiff’s application
to proceed in forma pauperis is granted.
B.

Standard of Review
Pro se submissions are afforded wide interpretational latitude and should be held “to less

stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519,
520 (1972) (per curiam); see also Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997).

In

addition, the court is required to read the plaintiff=s pro se complaint liberally and interpret it as
raising the strongest arguments it suggests. United States v. Akinrosotu, 637 F.3d 165, 167 (2d
Cir. 2011) (per curiam) (citation omitted); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009).
The Supreme Court has held that pro se complaints need not even plead specific facts;
rather the complainant “need only give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation
marks and citations omitted); cf. Fed. R. Civ. P. 8(e) (“Pleadings must be construed so as to do
justice.”). However, a pro se plaintiff must still plead “enough facts to state a claim to relief that

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is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (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 (2009) (citations omitted). The plausibility standard requires “more than a
sheer possibility that a defendant has acted unlawfully.” Id. at 678. 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.’” Id. at 678 (quoting Twombly, 550
U.S. at 555).
C.

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. Section 1983 “is not itself a source of substantive rights, but a method for
vindicating federal rights elsewhere conferred by those parts of the United States Constitution and
federal statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979); Thomas v.
Roach, 165 F.3d 137, 142 (2d Cir. 1999). In order to state a § 1983 claim, a plaintiff must allege
two essential elements. First, the conduct challenged must have been “committed by a person
acting under color of state law.”

Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010)

(quoting Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994)). 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.; see also Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999).
1.

Application to Plaintiff’s Claims

As noted above, in order to state a Section 1983 claim, a plaintiff must
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allege, inter alia, that the conduct challenged was “committed by a person acting under color of
state law.” Cornejo, 592 F.3d at 127 (citation omitted). Here, the sole defendants, Macedonio
and Duncan, are alleged to be plaintiff’s criminal defense attorneys in the underlying state court
criminal matter. Both defendants are alleged to be privately retained. 3 Thus, because these
defendants are private actors, they do not act under color of state law and cannot be liable under
Section 1983.
However, private actors, such as the defendants, may be considered to be acting under the
color of state law for purposes of Section 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 (1970)). Section 1983
liability may also extend to a private party who conspires with a state actor to violate a plaintiff’s
constitutional rights. Ciambriello, 292 F.3d at 323-24. To state a plausible conspiracy claim
under Section 1983, 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)).
Here, plaintiff has made no allegations from which the Court could construe joint action by
Macedonio or Duncan with a state actor or that either of these defendants conspired with a state
actor to deprive plaintiff of some constitutional right. Thus, plaintiff has not alleged a plausible
conspiracy claim. Because Macedonio and Duncan are not state actors, there is no legal basis for
a Section 1983 claim against them.

Accordingly, plaintiff’s Section 1983 claims against

Macedonio and Duncan fail as a matter of law, and are dismissed pursuant to 28 U.S.C. §§
3

Even if these attorneys were appointed by the Court to represent plaintiff in the underlying criminal case, they would
not be state actors for purposes of Section 1983. See, e.g., Polk Cnty. v. Dodson, 454 U.S. 312, 325 (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.”).

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1915(e)(2) (B)(ii), 1915A(b).
D.

Leave to Amend
A pro se plaintiff should ordinarily be given the opportunity “to amend at least once when

a liberal reading of the complaint gives any indication that a valid claim might be stated.” Shomo
v. City of New York, 579 F.3d 176 (2d Cir. 2009) (quoting Gomez v. USAA Fed. Sav. Bank, 171
F.3d 794, 795-96 (2d Cir. 1999) (internal quotation marks omitted)). Indeed, a pro se plaintiff
who brings a civil rights action, “should be ‘fairly freely’= afforded an opportunity to amend his
complaint.” Boddie v. New York State Div. of Parole, No. 08-CV-911, 2009 WL 1033786, at *5
(E.D.N.Y. Apr. 17, 2009) (quoting Frazier v. Coughlin, 850 F.2d 129, 130 (2d Cir. 1988)) (internal
quotation marks omitted). Yet while “pro se plaintiffs are generally given leave to amend a
deficient complaint, a district court may deny leave to amend when amendment would be
futile.” Id. (citations omitted).
Here, the court has carefully considered whether plaintiff should be granted leave to amend
his complaint. Because the defects in plaintiff’s claims are substantive, and could not be cured in
an amended complaint, leave to amend the complaint would be futile and is thus denied.
However, plaintiff may pursue any valid state law claims he may have against the defendants in
state court.

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III.

CONCLUSION

For the forgoing reasons, the plaintiff=s application to proceed in forma pauperis is granted,
but plaintiff’s claims are sua sponte dismissed for failure to allege a plausible claim for relief
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii-iii), 1915A(b). The Clerk of the Court is directed to
mail a copy of this Order to the plaintiff at his last known address and 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 (1962).
SO ORDERED.

_____/s/ (JMA)________________
Joan M. Azrack
United States District Judge

Dated: March 23, 2017
Central Islip, New York

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