Li v. Weinstock et al

Filing 18

DECISION and ORDERED, that the Report-Recommendation is APPROVED and ADOPTED in its ENTIRETY; and it is further ORDERED, that Plaintiffs Complaint (Dkt. No. 1) is DISMISSED with prejudice for failure to state a claim on which relief may be granted; a nd it is further ORDERED, that no opportunity to amend the Complaint is provided to Plaintiff; and it is further ORDERED, that Plaintiffs renewed Application to proceed in forma pauperis (Dkt. No. 13) is DENIED as moot. Signed by Senior Judge Lawrence E. Kahn on June 16, 2011. (sas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
XIANG LI,
Plaintiff,
-against-

5:10-CV-0804 (LEK/GHL)

MICHAEL SEAN WEINSTOCK;
WONG, WONG AND ASSOCIATES
PC,
Defendants.

DECISION AND ORDER
This matter comes before the Court following a Report-Recommendation filed on May 4,
2011, by the Honorable George H. Lowe, United States Magistrate Judge, pursuant to 28 U.S.C. §
636(b) and L.R. 72.3 of the Northern District of New York. Report-Rec. (Dkt. No. 14). After
fourteen days from the service thereof, the Clerk has sent the entire file to the undersigned,
including the objections by Plaintiff Xiang Li (“Plaintiff”), which were filed on May 13, 2011, and
May 19, 2011. Objections (Dkt. No. 15); Supplemental Objections (Dkt. No. 16).
The Court is to “make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b). “A
[district] judge . . . may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” Id. Where, however, an objecting “party makes
only conclusory or general objections, or simply reiterates his original arguments, the Court reviews
the Report and Recommendation only for clear error.” Farid v. Bouey, 554 F. Supp. 2d 301, 307
(N.D.N.Y. 2008) (quoting McAllan v. Von Essen, 517 F. Supp. 2d 672, 679 (S.D.N.Y. 2007))
(citations and quotations omitted); see also Brown v. Peters, No. 95-CV-1641, 1997 WL 599355, at

*2-3 (N.D.N.Y. Sept. 22, 1997). “A [district] judge . . . may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
Plaintiff appears to rest his Objections on two main arguments. First, he claims that
Defendant Michael Sean Weinstock (“Defendant Weinstock”) “was not functioning as a counsel at
all before and during trial.” Pl.’s Obj. at 1. Second, Plaintiff argues that Defendant Weinstock,
though a privately retained attorney, may nonetheless be held liable as a state actor under 28 U.S.C.
§ 1983. Id. at 2. For the reasons given below, the Court rejects both of these contentions.
Plaintiff’s first objection does nothing more than reiterate his original assertions in his
Complaint - namely, that Defendant Weinstock performed poorly as his defense counsel.
Accordingly, the Court has reviewed only for clear error the portions of the ReportRecommendation to which this argument refers, and finds no such error here. See Farid, 554 F.
Supp. 2d at 307. Nowhere in the record does Plaintiff allege that Defendant Weinstock and the
government “‘carried out a deliberate, previously agreed upon plan,’ or that their conduct
‘constitute[d] a conspiracy or meeting of the minds.’” Johnson v. City of New York, 669 F. Supp.
2d 444, 450-51 (S.D.N.Y. 2009) (quoting Dahlberg. v. Becker, 748 F.2d 85, 93 (2d Cir. 1984)).
The Court thus finds no clear error in the Report-Recommendation.
Reviewing de novo Plaintiff’s argument that Defendant Weinstock may be liable as a state
actor despite his status as a private attorney, the Court finds that this objection has no merit. In his
Objections, Plaintiff states that both the Supreme Court and Second Circuit have held “only” that
public defenders and court-appointed attorneys do not act under color of state law when performing
traditional functions of counsel for defendants. Pl.’s Obj. at 2 (citing Polk County v. Dodson, 454
U.S. 312, 325 (1981); Rodriguez v. Weprin, 116 F.3d 62, 65-66 (2d Cir. 1997)). While Plaintiff
2

appears to suggest that these decisions are therefore inapplicable to privately retained attorneys, the
Court considers that if appointment by the state is insufficient to render an attorney a state actor
under § 1983, by extension, the nexus between a privately retained attorney and the state is even
more tenuous. See Krug v. McNally, 488 F. Supp. 2d 198, 200 (N.D.N.Y. 2007) (Kahn, J.) (finding
no § 1983 liability where “[d]efendants are clearly private attorneys, who served as privatelyretained defense counsel.”). Plaintiff’s argument that Defendant Weinstock is a state actor by virtue
of being licensed to practice by the State of New York also patently fails: If a license to practice law
were sufficient to render an attorney a state actor, any attorney could be found liable under § 1983
and such a result would plainly contradict the cases cited above. Id. (citing Polk County, 454 U.S.
at 324-25; Weprin, 116 F.3d at 65-66; Lemmons v. Law Firm of Morris & Morris, 39 F.3d 264, 266
(10th Cir. 1994)).
Plaintiff has also filed Supplemental Objections in support of his contention that Defendant
Weinstock – as well as his employer, Defendant Wong, Wong, and Associates – are state actors
under § 1983. Pl.’s Supp. Obj. Specifically, he argues in his Supplemental Objections that their
actions are attributable to the State because Plaintiff and his family complained to the trial court on
multiple occasions about his counsel’s performance, and the court notified Defendants of these
complaints. Id. at 1-2. Though Plaintiff does little here but reiterate the allegations in his
Complaint, even reviewing the relevant portions of the Report-Recommendation de novo, the Court
finds that Plaintiff’s factual allegations in his Supplemental Objections do not suggest any deliberate
plan or conspiracy between Defendants and the state. See Johnson, 669 F. Supp. 2d at 450-51.
Defendants are not state actors subject to § 1983 liability, and Plaintiff’s Complaint thus fails to
state a claim upon which relief can be granted.
3

Accordingly, it is hereby:
ORDERED, that the Report-Recommendation is APPROVED and ADOPTED in its
ENTIRETY; and it is further
ORDERED, that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED with prejudice for
failure to state a claim on which relief may be granted; and it is further
ORDERED, that no opportunity to amend the Complaint is provided to Plaintiff; and it is
further
ORDERED, that Plaintiff’s renewed Application to proceed in forma pauperis (Dkt. No.
13) is DENIED as moot; and it is further
ORDERED, that the Clerk serve a copy of this Report-Recommendation and Order on
Plaintiff by regular and certified mail, along with a copy of the decision available only electronically
and cited herein.
IT IS SO ORDERED.

DATED:

June 16, 2011
Albany, New York

4