Morris v. Jefferson County Public Defender's Office
Filing
68
DECISION AND ORDER granting Defts' 62 Motion for Summary Judgment. Signed by Senior Judge Thomas J. McAvoy on 8/7/12. [Served by mail.] (sfp, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
ALLEN MORRIS,
Plaintiff,
-v-
09-cv-1412
JEFFERSON COUNTY PUBLIC
DEFENDER’S OFFICE and JEFFERSON
COUNTY,
Defendants.
_________________________________________
THOMAS J. McAVOY,
Senior United States District Judge
DECISION & ORDER
I.
INTRODUCTION
Plaintiff Allen Morris commenced this civil right action pro se, asserting claims
pursuant to 42 U.S.C. § 1983. See Am. Compl., dkt. # 7.1 Defendants Jefferson County
Public Defender’s Office and Jefferson County move pursuant to Fed. R. Civ. P. 56 to
dismiss the action. Dkt. # 62. Plaintiff has opposed the motion, dkt. # 64, and Defendants
have filed a reply. Dkt. # 65. For the reasons that follow, the motion is granted.
1
The Am ended Com plaint is deem ed to have superseded the Com plaint in all respects. See
N.Y.N.D. L.R. 7.1(a)(4)(A party m oving to am end a pleading pursuant to Fed. R. Civ. P. 14, 15, 19-22 m ust
attach an unsigned copy of the proposed am ended pleading to its m otion papers. Except if the Court
otherwise orders, the proposed am ended pleading m ust be a com plete pleading, which will supersede the
original pleading in all respects. A party shall not incorporate any portion of its prior pleading into the
proposed am ended pleading by reference.)(em phasis added).
1
II.
BACKGROUND
On July 26, 2009, while Plaintiff was in the custody of the New York State
Department of Correctional Services (DOCS) incarcerated at the Cape Vincent
Correctional Facility in Jefferson County, New York, he was allegedly discovered excreting
from his anus a blue bag found to contain a brown powdery substance. A field test on the
brown powder identified it as heroin. Plaintiff was charged with various violations of
DOCS’s administrative regulations, and a Superintendent's Hearing was held on July 29th
through August 6, 2009. Plaintiff was found guilty at the hearing, and he thereafter
appealed this decision.
On August 13,2009, while his appeal was pending, Plaintiff was arrested and
arraigned in the Town of Cape Vincent Justice Court on the charges of Promoting Prison
Contraband 1st Degree in violation of N.Y. Penal Law § 205.25, and Criminal Possession
of a Controlled Substance 3rd Degree in violation of N.Y. Penal Law § 220.16(1). Plaintiff
was bound over for Grand Jury determination and returned to DOCS’s custody. Plaintiff
asserts that he “was sent out of the facility and arraigned before my procedural due
process rights [were] adjudicated and exhausted.” Am. Comp. ¶ 6.
On August 24, 2009, the Jefferson County Public Defender's Office received notice
that it was assigned to represent the Plaintiff and an Assistant Public Defender was
assigned to Plaintiff’s case. Plaintiff asserts that “[f]rom the very point of assignment of
counsel I expressed to the lawyer that my rights were violated,”2 but “[a]t no point did [the
2
On Septem ber 8, 2009, Plaintiff sent the assistant public defender a letter stating, inter alia, that his
rights at the arraignm ent had been violated because a lawyer was not present and because he had not been
provided copies of the laboratory results of the substance he was charged with bringing into the correctional
facility.
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assistant public defender] move to get this matter resolved.” Id. Plaintiff contends that the
Public Defender’s Office “was not acting in an adversarial capacity, zealously propounding
[sic] and representing me,” but instead “acting as an arm of the prosecution.” Id.
On September 11, 2009, the DOCS Appeals Officer hearing Plaintiff’s
Superintendent's Hearing appeal dismissed some of the administrative charges, stating:
"the drug testing evidence provided does not support a positive finding for opiates." On
September 24, 2009, the assistant public defender handling Plaintiff’s case had a
telephone conversation with Plaintiff. Plaintiff agreed to waive the 45-day rule contained in
N.Y. Crim. Pro. L. § 190.80 (providing for the speedy presentment of a criminal case to a
grand jury) because Plaintiff was already serving a sentence on an unrelated conviction.
Plaintiff requested, however, that the criminal case against him be dismissed. Counsel
advised Plaintiff that the District Attorney would likely offer a plea bargain before the case
was indicted; that if the plea bargain was rejected the matter would be presented to the
Grand Jury; and that, pursuant to N.Y. Crim. Proc. Law § 255.20, the opportunity for
making a motion to dismiss would be after an indictment was returned.3
On November 4, 2009, the assistant public defender sent Plaintiff a letter advising
that the District Attorney’s Office had offered a plea bargain. On November 10, 2009, the
assistant public defender received a letter from Plaintiff indicating that some of the
administrative charges against Plaintiff had been dismissed,4 and directing the assistant
3
N.Y. Crim . Proc. Law § 255.20(1) provides that “[e]xcept as otherwise expressly provided by law,
whether the defendant is represented by counsel or elects to proceed pro se, all pre-trial m otions shall be
served or filed within forty-five days after arraignm ent and before com m encem ent of trial . . . .” Counsel
understood this to apply to an arraignm ent on charges contained in an indictm ent. Porter Aff., ¶ 8.
4
It is unclear from the record whether this is the first tim e that this inform ation was conveyed to the
assistant public defender, but for reasons discussed infra that fact is im m aterial.
3
public defender to move to have the criminal charges dismissed on the grounds of double
jeopardy. On November 13, 2009, the assistant public defender sent Plaintiff an
authorization to release Plaintiff’s disciplinary hearing records to counsel, but Plaintiff did
not execute and return the authorization.
On December 8, 2009, Plaintiff sent the assistant public defender a letter that
“reminded” counsel that “no case” against Plaintiff existed; that asserted that Plaintiff’s
constitutional due process rights were violated because he was arraigned on the criminal
charge before his appeal on the administrative charges was heard; and that stated that
“[i]n light of this, I’m asking that no further inquiry be made and this matter closed.”
On December 21, 2009, a representative of the Public Defender’s Office appeared
in Jefferson County Court and waived Plaintiff’s right to a speedy trial. The District
Attorney’s Office and the County Court Judge requested copies of Plaintiff’s DOCS inmate
disciplinary record and the appeals decision in which Plaintiff asserted that the DOCS
disciplinary charges had been dismissed. On December 22, 2009, the Public Defender's
Office became aware that Plaintiff commenced the instant action. The Public Defender’s
Office applied to be relieved of legal representation of the Plaintiff, and sought to revoke
the waiver of speedy trial with a reservation of that right for substitute counsel. The
Jefferson County Court relieved the Public Defender’s Office and assigned substitute
private legal counsel to represent Plaintiff.
Plaintiff appeared before the Grand Jury on January 27, 2010 with substitute legal
counsel. Plaintiff was thereafter indicted on the charges of Promoting Prison Contraband
1st Degree in violation of N.Y. Penal Law § 205.25, and Criminal Possession of a
Controlled Substance 3rd Degree in violation of N.Y. Penal Law §220.16(1). Subsequent
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to the indictment and the filing of the Amended Complaint in this action, and while being
represented by substitute legal counsel, Plaintiff pleaded guilty in Jefferson County Court
to the charge of Criminal Possession of a Controlled Substance 3rd Degree. Plaintiff’s
conviction was affirmed on appeal in People v. Morris, 94 A.D.3d 1450, 942 N.Y.S.2d 725
(4th Dept. 2012).
Plaintiff now asserts that the Public Defender’s Office violated his constitutional
rights by failing to move to dismiss the criminal accusatory instrument on the grounds that
the charges were "barred by the Doctrine of Res Judicata Administrative Collateral
Estoppel." Pl. Resp. L.R. 7.1(a)(3) Stat. of Facts, ¶ 1. He also asserts that “[t]he
municipality has liability because it is the provider to indigent defendants of legal
representation. Therefore, this raises a constitutional issue where injury was inflicted
pursuant to a municipal policy or custom.” Am. Compl. ¶ 7.
III.
STANDARD OF REVIEW
On a motion for summary judgment the Court must construe the properly disputed
facts in the light most favorable to the non-moving party, see Scott v. Harris, 127 S. Ct.
1769, 1776 (2007), and may grant summary judgment only where “there is no genuine
issue as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). That is, “[s]ummary judgment is appropriate only if, after drawing all
permissible factual inferences in favor of the non-moving party, there is no genuine issue
of material fact and the moving party is entitled to judgment as a matter of law.” O'Hara v.
National Union Fire Ins. Co. of Pittsburgh, PA, 642 F.3d 110, 116 (2d Cir. 2011)(citing
Anemone v. Metro. Transp. Auth., 629 F.3d 97, 113 (2d Cir. 2011)).
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IV.
DISCUSSION
As recognized by Magistrate Judge Lowe in his Report Recommendation
addressing the original complaint in this matter:
[S]ection 1983 creates a cause of action only against persons acting under
color of state law. See, e.g., Rodriguez v. Phillips, 66 F.3d 470, 473 (2d Cir.
1995). 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." Polk County v. Dodson, 454 U.S. 312, 325 (1981);
accord Rodriguez v. Weprin, 116 F.3d 62, 65-66 (2d Cir. 1997).
Rep. Rec., p. 2.
Inasmuch as the allegations against Defendants arise solely within in the context of
Plaintiff’s representation by his assigned assistant public defender and concern only
counsel’s performance of a "lawyer's traditional functions," Defendants could not act under
color of state law such to support Plaintiff's causes of action against them pursuant to 42
U.S.C. §1983. See Franklin v. Warren County D.A.'s Office, 1:08CV801 (GLS/RFT), 2009
WL 161314 (N.D.N.Y. Jan. 21, 2009)(Treece, MJ).5
Further, Plaintiff fails to establish that anything the assistant public defender did or
failed to do amounted to a deprivation of Plaintiff’s constitutional or federally protected
rights. Plaintiff's mere allegations that the Public Defender's Office was acting "as an arm
of the prosecution" as opposed to zealously advocating for Plaintiff's interests fails to set
forth any specific facts supporting an actionable claim for the deprivation of a federally
protected right. Likewise, Plaintiff’s contention that the assistant public defender caused a
5
("[I]t is clear that a public defender, in representing an indigent client, is not acting under color of
state law. Polk County v. Dodson, 454 U.S. 312, 321, 102 S. Ct. 445, 70 L. Ed.2d 509 (1981); Bourdon v.
Loughren, 386 F.3d 88, 90 (2d Cir.2004) (noting that a claim for ineffective assistance of counsel is not
actionable in a § 1983 proceeding and further citing Polk County for the proposition that public defenders do
not act under color of state law and are not subject to suit under § 1983.”)
6
constitutional injury by failing to seek dismissal of the criminal charges because of the
apparent dismissal of some of the DOCS's administrative charges fails to establish a
claim. The fact that, after the Public Defender’s Office’s representation of Plaintiff ended,
Plaintiff was indicted by a Grand Jury on the same charges he asked to have dismissed;
that Plaintiff eventually pleaded guilty to one of those charges; and that his conviction was
affirmed on appeal all negate the conclusion that his counsel acted in a constitutionally
deficient manner. See Strickland v. Washington, 466 U.S. 668, 694 (1984) (To
successfully prove a claim of ineffective assistance of counsel, a petitioner must
demonstrate that: (1) "counsel's representation fell below an objective standard of
reasonableness"; and (2) there is a "reasonable probability that, but for counsel's errors
the result of the proceeding would have been different."). Moreover, even if there was a
basis for dismissal of the charges at a preliminary stage of the proceedings, the fact that
Plaintiff was held in the custody of DOCS on an unrelated matter during the pendency of
the criminal charges in Jefferson County Court defeats any claim that he suffered any
prejudice by counsel’s failure to move for dismissal. Id.
Plaintiff’s policy and custom claim against the municipal entity is wholly conclusory
and fails to state an actionable claim. A municipality can only be held liable when the
municipality itself commits a wrong, and liability may not be based on a theory of
respondeat superior. Bd. of County Commissioners v. Brown, 520 U.S. 397, 403, 117 S.
Ct. 1382 (1997); Pembaur v.City of Cincinatti, 475 U.S. 469, 478, 106 S. Ct. 1292 (1986).
For a municipality to be held liable under 42 U.S.C. § 1983 for an official custom or policy,
Plaintiff must prove "(1) actions taken under color of law; (2) deprivation of a constitutional
or statutory right; (3) causation; (4) damages; and (5) that an official policy of the
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municipality caused the constitutional injury." Roe v. City of Waterbury, 542 F.3d 31,36 (2d
Cir. 2008); see Monell v. Dept. of Social Services. 436 U.S. 658, 690-91, 98 S. Ct. 2018
(1978).
As indicated above, Plaintiff fails to establish that any complained of actions were
taken under color of state law, or that any of the actions of the Public Defender’s Office
violated Plaintiff’s federally protected rights thus to support a § 1983 claim. Because the
Public Defender’s Office’s actions fail to support a § 1983 claim, it follows that the
allegations fail to support a § 1983 municipality policy, custom, or practice claim. See
Franklin, 2009 WL 161314, at *4-6 (N.D.N.Y. Jan. 21, 2009) (Sharpe, J.) (dismissing claim
against county because there was no indication that any of plaintiff’s federal rights were
violated pursuant to a county policy or custom).
V.
CONCLUSION
For the reasons set forth above, Defendants’ motion for summary judgment [dkt. #
62] is GRANTED and the action is DISMISSED.
IT IS SO ORDERED
Dated: August 7, 2012
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