Harmon v. Vance et al

Filing 57

OPINION & ORDER re: 37 FIRST MOTION to Dismiss Second Amended Complaint filed by Robert M. Morgenthau, Cyrus R. Vance, Jr. For the foregoing reasons, defendants' motions to dismiss the SAC are granted. The Clerk of Court is respectfully directed to terminate all pending motions, and to close this case. (Signed by Judge Paul A. Engelmayer on 3/17/2014) (cd)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ROBERT TYRONE HARMON,
Plaintiff,
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:
-v:
:
:
NEW YORK COUNTY DISTRICT ATTORNEY’S
OFFICE, CYRUS R. VANCE, JR., individually and in his :
official capacity as District Attorney of New York County, :
ROBERT M. MORGENTHAU, individually and in his
:
official capacity as former District Attorney of New York :
County, STEPHANIE KAPLAN, DONNA KLETT, and :
THE CITY OF NEW YORK,
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Defendants.
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13 Civ. 1711 (PAE)

OPINION & ORDER

PAUL A. ENGELMAYER, District Judge:
Pro se plaintiff Robert Tyrone Harmon (“Harmon”) brings this action, under 42 U.S.C.
§§ 1983, 1985(3), and 1986, alleging that the named defendants violated his constitutional rights.
The gravamen of Harmon’s Complaint is that the defendants, in 2001, caused a New York State
Supreme Court Justice to erroneously sentence him as a predicate felony offender under N.Y.
Criminal Procedure Law § 400.21 and N.Y. Penal Law § 70.06, based on his prior federal
conviction for conspiracy to distribute narcotics under 21 U.S.C. § 846. As Harmon emphasizes,
years later, in 2012, after he served his sentence, it was retrospectively reduced from the original
three-to-six years to one year, based on a new decision from the New York Court of Appeals
holding, for the first time, that a federal conspiracy convictions under § 846 do not constitute a
predicate felony under New York law.
Following his resentencing, Harmon filed this lawsuit against three sets of defendants:
(1) the New York County District Attorney’s Office (“NYDA”), Cyrus R. Vance, Jr. (“Vance”),

and Robert M. Morgenthau (“Morgenthau”) (collectively, the “DA defendants”); (2) Harmon’s
former defense counsel, Legal Aid attorneys Stephanie Kaplan (“Kaplan”) and Donna Klett
(“Klett”) (collectively, the “Legal Aid defendants”); and (3) the City of New York (“the City”).
Harmon claims that the classification in 2001 of his federal conviction as a predicate felony was
erroneous, caused him injury (in the form of a longer sentence), and is today actionable. Harmon
asserts that the defendants committed, and conspired to commit, malicious prosecution, and
violated his Fourth Amendment rights, by wrongly charging him as a predicate felony offender.
Harmon also claims ineffective assistance of counsel on the part of the Legal Aid defendants.
The defendants now move to dismiss for failure to state a claim under Federal Rule of
Civil Procedure 12(b)(6). For the reasons that follow, defendants’ motions are granted.
I.

Background1
A.

Harmon’s Conviction and Sentencing

On December 11, 2000, in New York State Supreme Court in Manhattan, Harmon pled
guilty before Justice Daniel FitzGerald to the attempted sale of a controlled substance in the third
degree, N.Y. Penal Law § 220.39(1). SAC ¶ 2. That same day, Harmon was arraigned on a
statement of predicate felony conviction, which alleged that Harmon had been convicted, on
January 3, 1999, of conspiracy to distribute cocaine base, in violation of 21 U.S.C. § 846, in the
U.S. District Court for the Southern District of West Virginia.2 Id. ¶¶ 1–2. At the arraignment,

1

The facts below are drawn from the Second Amended Complaint, Dkt. 35 (“SAC”). On a
motion to dismiss, the Court accepts all factual allegations in the SAC as true, drawing all
reasonable inferences in the plaintiff’s favor. See Koch v. Christie’s Int’l PLC, 699 F.3d 141,
145 (2d Cir. 2012).
2

The statement of predicate felony conviction, pursuant to N.Y. Criminal Procedure Law
§ 400.21 and N.Y. Penal Law § 70.60, was originally filed on September 5, 2000 by ADA
Jennifer Gaffney (“Gaffney”) in the New York Supreme Court, County of New York. SAC ¶ 1;
id. Ex. A. Harmon does not dispute the fact of his prior conviction. See id. ¶¶ 1, 2.
2

the court advised Harmon’s defense counsel that any challenge to the statement of predicate
felony conviction should be raised before sentencing. Id. ¶ 2.
On January 9, 2001, Klett, one of Harmon’s attorneys, spoke with Assistant District
Attorney (“ADA”) Michael Dougherty (“Dougherty”) “off the record” and outside Harmon’s
presence. Id. ¶ 3. Klett acknowledged to Dougherty that the defense would “probably lose” the
predicate felony issue. Id.
Some time before the January 31, 2001 sentencing, Harmon spoke with defense attorney
Kaplan about the predicate felony conviction. Id. ¶ 4. Harmon noted that he had never been
convicted of a felony in the State of New York, and asked why a federal conviction should affect
a state court sentence. Id. Kaplan informed Harmon, “It’s a felony. . . . To challenge the
predicate felony statement would be to no avail.” Id. At no time during the sentencing process
did Klett or Kaplan challenge the statement of a predicate felony conviction. Id. ¶ 5.
On January 31, 2001, Harmon was sentenced as a predicate felony offender and received
a prison sentence of three-to-six years. Id. ¶ 5; id. Ex. F at 7. Slightly more than two years later,
on May 28, 2003, Harmon was released on parole. Id. ¶ 5; id. Ex. F at 7. On November 4, 2005,
Harmon’s parole was revoked, and he was again incarcerated until January 27, 2006. Id. ¶ 5; id.
Ex. F at 7–8. After another short release on parole, Harmon was incarcerated again from August
22, 2006 until October 26, 2006. Id. ¶ 5; id. Ex. F at 8. On October 5, 2007, Harmon was
discharged from parole. Id. ¶ 5; id. Ex. F at 8.
B.

Harmon’s Motion for Resentencing

In early 2012, Harmon’s independent research led him to believe that New York State’s
“strict equivalency” standard for determining whether a prior conviction from another
jurisdiction qualified as a predicate felony meant that his treatment in 2001 as a predicate felony

3

offender had been in error. Id. ¶ 6. On January 26, 2012 Harmon moved to set aside and correct
his sentence. Id.; id. Ex. G. On May 8, 2012 ADA Gaffney filed a response, arguing that the
motion should be summarily denied on the grounds that Harmon provided “no facts or arguments
explaining why his sentence should be set aside.” Id. ¶ 7; id. Ex. B.
On May 24, 2012 Harmon filed a reply. Id. ¶ 8; id. Ex. H. He argued that his federal
conviction under 21 U.S.C. § 846 was not equivalent to any felony under New York State law,
and alleged that no prosecutor or defense attorney on his state case had adequately investigated
that issue. Id. Ex. H. Unlike the federal drug conspiracy statute, the New York felony
conspiracy statute requires the commission of an overt act. Compare United States v. Ogando,
547 F.3d 102, 107 (2d Cir. 2008) (“to establish a conspiracy [under 21 U.S.C. § 846], the
Government is not required to prove the commission of any overt acts in furtherance of the
conspiracy”), with N.Y. Penal Law § 105.20 (“A person shall not be convicted of conspiracy
unless an overt act is alleged and proved to have been committed by one of the conspirators in
furtherance of the conspiracy.”). Harmon asserted that this difference meant that a federal drug
conspiracy conviction could not qualify as a predicate felony under New York’s strict
equivalency standard. SAC ¶ 8; id. Ex. H.
On June 25, 2012, the NYDA’s office consented to Harmon’s resentencing as a first-time
felony offender. Id. ¶ 9; id. Ex. I. The NYDA explained that this outcome followed from People
v. Ramos, 19 N.Y.3d 417 (2012), a New York Court of Appeals decision handed down two
weeks earlier, on June 12, 2012. Ramos held, for the first time, that “under New York’s ‘strict
equivalency’ standard for convictions rendered in other jurisdictions, a federal conviction for
conspiracy to commit a drug crime [i.e., for violating 21 U.S.C. § 846,] may not serve as a
predicate felony for sentencing purposes.” Id. at 418. Because the New York statute requires

4

proof of an element that 21 U.S.C. § 846 does not—namely, an overt act in furtherance of the
conspiracy—the Court of Appeals held that “defendant’s federal conspiracy conviction cannot
serve as a predicate.” Id. at 420. Based on Ramos, the NYDA recommended that Harmon be
retrospectively resentenced to one to three years in prison. SAC Ex. I.
On August 27, 2012, Justice FitzGerald resentenced Harmon to one year in prison.
Id. ¶ 10; id. Ex. J. He noted that the minutes from the original sentencing indicated that, if
Harmon was “not a predicate [felon,] he should get one year.” Id. Ex. J.
C.

Procedural History

On March 13, 2013, Harmon filed his original Complaint in this case, claiming violations
of federal and state law relating to his treatment as a predicate offender and seeking money
damages. Dkt. 2. Harmon’s federal claims for violation of his civil rights are brought under 42
U.S.C. § 1983 (civil action for deprivation of rights), § 1985(3) (civil action for conspiracy to
interfere with civil rights), and § 1986 (civil action for neglect to prevent conspiracy to interfere
with civil rights). On April 16, 2013, Harmon filed an Amended Complaint. Dkt. 5. On May
13, 2013, the Court dismissed Harmon’s claims against ADAs Gaffney and Dougherty on
immunity grounds. Dkt. 12.
On July 15, 2013, the DA defendants filed a motion to dismiss, Dkt. 21, and a supporting
memorandum of law, Dkt. 17. On July 18, 2013, the Legal Aid defendants filed a motion to
dismiss, Dkt. 24, and a supporting memorandum of law, Dkt. 26. And on August 2, 2013, the
City filed a motion to dismiss, Dkt. 29, and a supporting memorandum of law, Dkt. 31.
On August 16, 2013, Harmon filed the SAC and a supporting memorandum of law
opposing dismissal. Dkt. 35 (“Pl. Br.”). The DA defendants, Legal Aid defendants, and the City

5

then filed letters stating that they would rely on their previously filed motions to dismiss. See
Dkt. 37, 38, 40.
On October 25, 2013, Harmon filed an opposition to the motions to dismiss. Dkt. 46.
The DA defendants, Legal Aid defendants, and the City all subsequently filed reply letters,
stating that they would rely on their previous submissions. See Dkt. 47, 49, 51.
II.

Applicable Legal Standards
To survive a motion to dismiss under Rule 12(b)(6), a Complaint must allege facts that,

accepted as true, “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. 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.” Iqbal, 556 U.S. at
678. “Where a complaint pleads facts that are merely consistent with a defendant’s liability, it
stops short of the line between possibility and plausibility of entitlement to relief.” Id. (quoting
Twombly, 550 U.S. at 557) (internal quotation marks omitted).
A complaint is not required to provide “detailed factual allegations,” but it must assert
“more than labels and conclusions” and more than “a formulaic recitation of the elements of a
cause of action.” Twombly, 550 U.S at 555. The facts pled “must be enough to raise a right to
relief above the speculative level on the assumption that all the allegations in the complaint are
true.” Id. (internal citations omitted). The Court must accept all factual allegations in the
complaint as true, and draw all reasonable inferences in favor of the nonmoving party. ATSI
Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007); Burnette v. Carothers, 192
F.3d 52, 56 (2d Cir. 1999). Further, pro se pleadings must be read liberally and should be

6

interpreted “to raise the strongest arguments that they suggest.” Green v. United States, 260 F.3d
78, 83 (2d Cir. 2001) (quoting Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996)).
III.

Discussion
The SAC, read liberally, raises multiple federal and state law claims. Harmon’s federal

claims against the DA defendants and the City include: (1) malicious prosecution against the
individual defendants in violation of Harmon’s Fourth Amendment right to be free from
unreasonable seizure; and (2) malicious prosecution against the City for its failure to properly
(a) hire, train, and supervise ADAs; (b) adopt policies, procedures, or standards; and
(c) investigate prior claims of similar unlawful acts committed by ADAs. Harmon’s federal
claims against the Legal Aid defendants include allegations that (1) Kaplan provided ineffective
assistance of counsel in violation of Harmon’s Sixth Amendment rights; (2) Klett conspired with
the ADA to interfere with Harmon’s Fourth Amendment right to be free from unreasonable
seizure; and (3) both Kaplan and Klett negligently failed to prevent a violation of Harmon’s
Fourth Amendment right to be free from unreasonable seizure.
For the following reasons, the SAC’s federal claims are dismissed for failure to state a
claim upon which relief may be granted, and the Court declines to exercise supplemental
jurisdiction over any state law claims.
A.

The SAC’s Malicious Prosecution Claims Against the DA Defendants and the
City Fail to State a Claim Upon Which Relief May Be Granted

“Section 1983 ‘was intended to create a species of tort liability in favor of persons who
are deprived of rights, privileges, or immunities secured to them by the Constitution.’” Singer v.
Fulton Cnty. Sheriff, 63 F.3d 110, 116 (2d Cir. 1995) (quoting Carey v. Piphus, 435 U.S. 247,
253 (1978)). Section 1983 claims based on deprivations of liberty following criminal
prosecutions implicate the Fourth Amendment right to be free from unreasonable seizure. See

7

Albright v. Oliver, 510 U.S. 266, 271–74 (1994); Singer, 63 F.3d at 115 (“[T]he Fourth
Amendment is the proper source of constitutional protection for claims, such as malicious
prosecution, that implicate a person’s liberty interest in respect of criminal prosecutions.”).
To state a malicious prosecution claim under § 1983, Harmon “must show a violation of
his rights under the Fourth Amendment, and must establish the elements of a malicious
prosecution claim under state law.” Manganiello v. City of New York, 612 F.3d 149, 160–61 (2d
Cir. 2010) (citations omitted); see also Murphy v. Lynn, 118 F.3d 938, 944 (2d Cir. 1997).
Under New York law, the elements of malicious prosecution are “(1) the initiation or
continuation of a criminal proceeding against plaintiff; (2) termination of the proceeding in
plaintiff’s favor; (3) lack of probable cause for commencing the proceeding; and (4) actual
malice as a motivation for defendant’s actions.” Manganiello, 612 F.3d at 161 (citation
omitted).3
The first two of these elements are fairly pled. ADA Gaffney filed a statement of
predicate felony conviction, SAC ¶ 1, initiating a criminal proceeding, pursuant to which
Harmon was sentenced as a predicate felony offender and served nearly two and a half years in
prison and approximately four years on parole. Id. ¶ 5. And Harmon was later resentenced, to a
3

Contrary to the DA defendants’ assertion, the SAC’s malicious prosecution claims under
§ 1983 are timely. The statute of limitations period for such claims accrues “only when the
underlying criminal action is conclusively terminated” in the plaintiff’s favor. Murphy v. Lynn,
53 F.3d 547, 548 (2d Cir. 1995); see also Walters v. City Dep’t of Corr., 517 F. App’x 41, 42–43
(2d Cir. 2013) (the limitations period for plaintiff’s malicious prosecution claim “started to run,
at the latest . . . the day he was acquitted of the drug charges”); Palmer v. City of New York, 315
F. App’x 350 (2d Cir. 2009) (plaintiff’s malicious prosecution claim accrued the day the charges
against him were dismissed since that is the day he “knew or should have known that he suffered
an injury”). Here, the underlying criminal action on which Harmon’s malicious prosecution
claim is based was terminated in his favor on August 27, 2012, when Harmon was resentenced to
one year in prison. See SAC ¶ 10; id. Ex. J. Harmon filed the initial Complaint in this action on
March 13, 2013, well within the three-year limitations period for claims under § 1983. See
Lawson v. Rochester City Sch. Dist., 446 F. App’x 327, 328 (2d Cir. 2011); Washington v. Cnty.
of Rockland, 373 F.3d 310, 317 (2d Cir. 2004); N.Y. C.P.L.R. § 214.
8

lower term of imprisonment, based on the elimination of predicate felony offender status. Id.
¶ 10; id. Ex. J. See Janetka v. Dabe, 892 F.2d 187, 189–90 (2d Cir. 1989) (“[T]erminations less
favorable than an acquittal have been found to be favorable for purposes of a malicious
prosecution claim.”) (collecting cases).
However, the SAC fails to plausibly plead the third or fourth elements of a malicious
prosecution claim. As to the third element, at the time the predicate-felony charge was brought,
the ADAs clearly had probable cause to treat Harmon as a predicate felony offender based on his
previous federal drug conspiracy conviction. Probable cause under New York law, in the context
of a malicious prosecution claim, is “the knowledge of facts, actual or apparent, strong enough to
justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in
the manner complained of.” Bernshtein v. City of New York, 496 F. App’x 140, 142 (2d Cir.
2012) (citing Rounseville v. Zahl, 13 F.3d 625, 629 (2d Cir. 1994)). And, at the time of
Harmon’s original sentencing, the law in New York clearly held that a federal drug conspiracy
conviction under 21 U.S.C. § 846 could validly serve as a predicate felony. It was therefore
reasonable for the ADAs on Harmon’s case to charge him as such.
Specifically, the test for determining whether a prior conviction in another jurisdiction
qualifies as a predicate felony for sentencing purposes under New York law was announced in
People v. Gonzalez, 61 N.Y.2d 586, 589 (1984). The Court of Appeals there stated:
For purposes of sentencing, a prior out-of-State conviction is a predicate felony
conviction in New York when the foreign conviction carries with it a sentence of
imprisonment in excess of one year and a sentence in excess of one year is also
authorized for the offense in this State. . . . [T]he statute [also] requires that the
conviction be for a crime whose elements are equivalent to those of a New York
felony. To determine whether a foreign crime is equivalent to a New York felony
the court must examine the elements of the foreign statute and compare them to
an analogous Penal Law felony.

9

Id. (emphasis added) (citations omitted).4 The federal drug conspiracy statute does not require
proving the commission of an overt act. See 21 U.S.C. § 846. Had commission of an overt act
been treated at the time as an element of the New York crime of felony conspiracy, a conviction
for violating that statute could not have served as a predicate felony conviction. However,
between 1991 and 2012, New York courts had uniformly held that the overt act requirement in
the State’s felony conspiracy statute was not an element of that statute, but was merely an
“evidentiary requirement.” See, e.g., People v. Rossney, 577 N.Y.S.2d 683 (3d Dep’t 1991);
United States v. Stone, 531 F. Supp. 2d 486, 493 (E.D.N.Y. 2008) (canvassing New York law
and stating that “[T]his Court’s review of New York law makes clear that the overt act
requirement is an evidentiary provision and not a substantive element of criminal conspiracy.”).
For instance, in Rossney, the Third Department held that proof of an overt act was not
required to establish a prima facie case of conspiracy. The court stated:
The elements of the substantive crime [of conspiracy] are the requisite mental
state for the commission of the underlying crime and an agreement to commit that
crime. . . . The legislative mandate that there must be proof of an overt act before
a conviction may be had (see, Penal Law § 105.20) is an evidentiary requirement
unrelated to the elements of the substantive crime.
Id. at 685 (emphasis added). Rossney was still good law in 2001, when Harmon was sentenced.
It was therefore reasonable for the ADAs in Harmon’s case to treat the federal drug conspiracy

4

New York’s predicate felony offender statute states, in relevant part:
For the purpose of determining whether a prior conviction is a predicate felony
conviction the following criteria shall apply:
(i) The conviction must have been in this state of a felony, or in any other
jurisdiction of an offense for which a sentence to a term of imprisonment
in excess of one year or a sentence of death was authorized and is
authorized in this state.

N.Y. Penal Law § 70.06(1)(b).
10

statute as analogous to the state felony conspiracy statute—because, under Rossney, neither had
an overt act as an element—and to charge Harmon as a predicate felony offender.
Confirming the reasonableness of the prosecutors’ charging decision, shortly after
Harmon was sentenced, both the Third and First Departments each held, relying on Rossney, that
because the New York conspiracy statute’s overt act requirement was not an element of the
crime, a defendant who had previously been convicted of an offense under 21 U.S.C. § 846 could
be sentenced as a predicate felony offender under New York law. First, in People v. Miller, 728
N.Y.S.2d 526 (3d Dep’t 2001), the Appellate Division, Third Department, upheld a defendant’s
enhanced sentencing, in January 1998, on the basis of a federal drug conspiracy conviction. It
stated:
[T]here is no merit to defendant’s claim that a discrepancy between State and
Federal law regarding the need for an overt act to support a conviction of
conspiracy precludes the use of defendant’s Federal conspiracy conviction as a
predicate felony in New York. In determining whether a foreign crime is
equivalent to a New York felony for the purposes of enhanced sentencing, the
inquiry focuses upon a comparison of the elements of the foreign statute with the
elements of the analogous Penal Law felony. Inasmuch as the Penal Law
§ 105.20 requirement of an overt act in furtherance of the conspiracy “is an
evidentiary requirement unrelated to the elements of the substantive crime”, the
alleged discrepancy upon which defendant relies is irrelevant to the predicate
felony issue.
Id. at 528 (quoting Rossney, 577 N.Y.S.2d at 685) (emphasis added). Thus, less than five
months after Harmon was sentenced, the Third Department affirmed the conviction of a
defendant who was identically situated to Harmon. And in so doing, the court expressly rejected
the claim that an overt act was an element of the offense under New York’s felony conspiracy
statute that precluded a conviction under 21 U.S.C. § 846 from being treated as a predicate
felony.

11

The following year, the Appellate Division, First Department, reached the same result, in
People v. Hiladrio, 738 N.Y.S.2d 19 (1st Dep’t 2002). It stated:
Defendant’s contention that he was improperly sentenced as a second felony
offender is unpreserved and we decline to reach it in the interest of justice. Were
we to reach the issue, we would find the sentence proper as it was based on a
federal conviction of conspiracy to sell cocaine, and the New York requirement of
an overt act, which is not found in federal conspiracy law, is an evidentiary
requirement concerning the manner in which conspiracy must be established,
rather than being an element of the crime.
Id. at 20 (citing People v. Miller, 728 N.Y.S.2d at 528) (emphasis added).
The case law, both before and immediately after Harmon’s sentencing in 2001, thus
reveals a uniform understanding of New York law by the courts charged with its interpretation.
The ADAs had every reason, and certainly had probable cause at that time, to seek an enhanced
sentence against Harmon as a predicate felony offender.
To sustain Harmon’s claim here of malicious prosecution would, therefore, be an exercise
in 20/20 hindsight. At the time the decision was made to prosecute Harmon as a predicate felony
offender, the law uniformly supported that charging decision. Not until 2012 did the New York
Court of Appeals, in Ramos, hold otherwise. Indeed, in Ramos, the intermediate appellate court,
the Appellate Division, First Department, had affirmed the trial court’s sentencing of a defendant
as a predicate felony offender on the basis of a conviction under 21 U.S.C. § 846. See 914
N.Y.S.2d 897 (1st Dep’t 2011). This affirmance was 10 years after Harmon’s sentencing.5

5

In seeking to argue that established law as of 2001 supported his position, Harmon cites three
cases, but none is on point. Each instead addresses the proper state analogy to a different foreign
statute. See People v. Muniz, 74 N.Y.2d 464, 469 (1989) (“the statutory elements of the New
Jersey crime of which defendant was convicted, which requires an intent to commit any
‘offense,’ differ materially from the elements of its closest New York analog, third degree
burglary, which requires an intent to commit a ‘crime’” because New Jersey’s definition of
“offense” differs substantially from New York’s definition of “crime”); People v. Jackson, 499
N.Y.S.2d 749, 751 (1st Dep’t 1986) (the North Carolina crime of assault with a deadly weapon
would not be a felony in New York, because in North Carolina, such an assault lacked the
12

Charging Harmon as a predicate felon was, therefore, as a matter of law, reasonable at the
time Harmon was prosecuted and sentenced. Harmon’s prosecutors cannot be held liable for
failing to foresee the U-turn that the law would take more than a decade later. Harmon’s
malicious prosecution claim against the DA defendants must fail.
Furthermore, the SAC pleads no other facts—beyond the fact of a later change in legal
doctrine—supporting its claim that the prosecutors in his case acted with malice. The SAC
therefore fails to plead the fourth element of a malicious prosecution claim. Even reading the
SAC liberally, it is devoid of factual allegations that could give rise to a plausible inference that
the prosecutors who charged Harmon as a predicate felony offender had a “wrong or improper
motive” or anything “other than a desire to see the ends of justice served.” Lowth v. Town of
Cheektowaga, 82 F.3d 563, 573 (2d Cir. 1996) (quoting Nardelli v. Stamberg, 44 N.Y.2d 500,
503 (1978)).
The SAC’s malicious prosecution claims against the City also fail. These claims allege
that the City failed to properly: (1) hire, train, and supervise ADAs; (1) adopt policies,
procedures, or standards; and (3) investigate prior claims of similar unlawful acts committed by
ADAs. These claims are derivative of Harmon’s malicious prosecution claim against the DA
defendants, in that they claim that his malicious prosecution stemmed from these system
delinquencies. See Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978)

element of intentional infliction of physical injury or infliction of serious physical injury);
People v. Love, 489 N.Y.S.2d 513, 514–15 (1st Dep’t 1985) (because “the critical element of
specified minimum monetary value of the property stolen is not an element of the Federal crime,
that crime cannot be construed as a felony in [New York] State”). The point for which these
cases stand is undisputed: New York law requires that the elements of the foreign felony match
the elements of the analogous state felony. But the precise issue that is decisive here is what
New York law was, as of 2001, on the question of whether the overt act requirement in the
state’s conspiracy statute was a statutory element. The law on that point, between 1991 and
2012, when Ramos was decided, is uniformly against Harmon.

13

(to prevail, plaintiff must allege, among other things, that a “municipal policy of some nature
caused a constitutional tort”). They must, therefore, be dismissed for the same reasons. See
Lynch v. Suffolk Cnty. Police Dep’t, Inc., 348 F. App’x 672, 675 (2d Cir. 2009) (“[P]laintiff’s
claim pursuant to [Monell] is essentially derivative of his other § 1983 claims and fails for the
same reasons that those claims fail.”).
B.

The SAC’s Claims Against the Legal Aid Defendants Are Untimely and Fail
to State a Claim Upon Which Relief May Be Granted

The SAC also asserts the following federal claims against the Legal Aid defendants: that
they (1) provided Harmon with ineffective assistance of counsel under the Sixth Amendment
(under § 1983); (2) conspired with the ADAs to violate Harmon’s Fourth Amendment right to be
free from unreasonable seizure (under § 1985(3)); and (3) neglected to prevent the ADAs from
violating Harmon’s Fourth Amendment right to be free from unreasonable seizure (under
§ 1986). For two independent reasons, these claims fail.
First, as the Legal Aid defendants argue, the SAC’s claims against them are time-barred.
In § 1983 actions, courts apply the statute of limitations for personal injury actions under state
law. Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013); Pearl v. City of Long Beach, 296 F.3d
76, 79 (2d Cir. 2002). Accordingly, for a § 1983 claim arising in New York, the statute of
limitations is three years. The statute of limitations is also three years for § 1985(3) claims, and
one year for § 1986 claims. See Paige v. Police Dep’t of Schenectady, 264 F.3d 197, 199 n.2 (2d
Cir. 2001); 12 U.S.C. § 1986 (“[N]o action under the provisions of this section shall be sustained
which is not commenced within one year after the cause of action has accrued.”).
Federal law determines “when a federal claim accrues notwithstanding that a state statute
of limitations is to be used.” Morse v. Univ. of Vermont, 973 F.2d 122, 125 (2d Cir. 1992);
accord Cornwell v. Robinson, 23 F.3d 694, 703 (2d Cir. 1994). “[A]ccrual occurs ‘when the

14

plaintiff knows or has reason to know of the injury which is the basis of his action.’” Pearl, 296
F.3d at 80 (2d Cir. 2002) (quoting Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir.
1980)). In an action based on distinct wrongful acts, courts must analyze each claim separately
to determine when each accrued. See Singleton, 632 F.2d at 192.
The SAC’s claims against the Legal Aid defendants all arise out of events that took place
between September 2000, when ADA Gaffney filed the statement of predicate felony conviction,
and January 31, 2001, when Harmon was sentenced as a predicate felony offender. By his own
account, Harmon questioned his Legal Aid attorneys’ decision not to contest his predicate felony
status at the time of his sentencing. SAC ¶ 4. If Harmon believed that his attorneys’
representation was ineffective or that his attorneys conspired with the ADAs to maliciously
prosecute him, he was on notice that he needed to bring his claim within the time mandated by
the statute of limitations. Accordingly, Harmon’s claims against the Legal Aid defendants
accrued on or by January 31, 2001. Because Harmon did not file suit until more than 12 years
later, these claims—under § 1983, § 1985(3), or § 1986—are all time-barred.
Second, even if the claims against the Legal Aid defendants were timely, they would still
fail to state a claim on the merits. This in turn is true for two reasons. First, § 1983 actions
require that the “conduct complained of [be] committed by a person acting under color of state
law.” Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994). A private actor acts under color of
state law when his or her actions are “fairly attributable to the state.” Filarsky v. Delia, 132 S.
Ct. 1657, 1661 (2012). But it is well established that defense attorneys, even if they are courtappointed, do not act under color of state law when performing traditional functions of counsel.
See 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

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criminal proceeding.”); Brown v. Legal Aid Soc’y, 367 F. App’x 215, 216 (2d Cir. 2010);
Rodriguez v. Weprin, 116 F.3d 62, 65–66 (2d Cir. 1997). Harmon’s claim that his Legal Aid
attorneys conspired with the ADAs to cause Harmon to be sentenced as a predicate felon is
conclusory. Harmon’s threadbare claim on this point is insufficient to transform the Legal Aid
defendants into state actors for purposes of § 1983. See Brown, 367 F. App’x at 216 (similar
conspiracy allegation held to be “insufficient even at the pleading stage to establish that the
public defenders were acting under color of state law”). Because the Legal Aid defendants were
not state actors, they are not subject to suit under § 1983.
Second, the SAC’s claim of ineffective assistance under § 1983 fails for the same reasons
that the malicious prosecution claim fails. Because at the time Harmon was sentenced, settled
New York law permitted him to be charged as a predicate felon, it would have been “of no avail”
for his attorneys to challenge the prosecution’s decision to charge him as such. Their decision
not to do so was therefore reasonable. Accordingly, Harmon has failed to plead a plausible
violation of his Sixth Amendment rights.
The SAC’s claims against the Legal Aid defendants under § 1985(3) also fail to state a
claim. The four elements of a § 1985(3) claim are “(1) a conspiracy; (2) for the purpose of
depriving a person or class of persons of the equal protection of the laws, or the equal privileges
and immunities under the laws; (3) an overt act in furtherance of the conspiracy; and (4) an
injury to the plaintiff’s person or property, or a deprivation of a right or privilege of a citizen of
the United States.” Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999). “Furthermore, the
conspiracy must also be motivated by ‘some racial or perhaps otherwise class-based, invidious
discriminatory animus behind the conspirators’ action.’” Mian v. Donaldson, Lufkin & Jenrette

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Sec. Corp., 7 F.3d 1085, 1088 (2d Cir. 1993) (quoting United Bhd. of Carpenters, Local 610 v.
Scott, 463 U.S. 825, 829 (1983)).
Here, not only has Harmon failed to plead any deprivation of his rights, he has also failed
to allege facts that “would permit the Court to conclude or infer that the named defendants were
conspiring or that [Harmon was] targeted on account of [his] race.” Mione v. McGrath, 435 F.
Supp. 2d 266, 272 (S.D.N.Y. 2006) (citation omitted). Harmon’s claims under § 1985(3) that the
Legal Aid defendants conspired to deprive him of his constitutional rights must therefore be
dismissed.
Finally, the SAC’s claim under § 1986 that the Legal Aid defendants’ neglect caused the
malicious prosecution that deprived Harmon of his Fourth Amendment rights must be dismissed.
A § 1986 claim “must be predicated upon a valid § 1985 claim.” Mian, 7 F.3d at 1088 (citing
Katz v. Morgenthau, 709 F. Supp. 1219, 1236 (S.D.N.Y.), aff’d in part and rev’d in part on other
grounds, 892 F.2d 20 (2d Cir.1989)); see also id. (Section 1986 “provides a cause of action
against anyone who having knowledge that any of the wrongs conspired to be done and
mentioned in section 1985 are about to be committed and having power to prevent or aid,
neglects to do so”). Because Harmon has failed to state a claim under § 1985(3), he has also
failed to state one under § 1986. See Mione, 435 F. Supp. 2d at 272.6
C.

The Court Declines to Exercise Supplemental Jurisdiction Over Harmon’s
Claims under New York Law

Having dismissed all of Harmon’s federal claims, the Court must next determine whether
to exercise supplemental jurisdiction over the remaining state law claims. Federal district courts
have supplemental jurisdiction over state-law claims “that are so related to claims in the action

6

To the extent that the SAC may be read to assert § 1985(3) and § 1986 claims against the DA
defendants or the City, those claims would also be dismissed for these same reasons.
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within such original jurisdiction that they form part of the same case or controversy under Article
III of the United States Constitution.” 28 U.S.C. § 1367(a). However, such jurisdiction is
discretionary, see Klein & Co. Futures, Inc. v. Bd. of Trade of New York, 464 F.3d 255, 263 (2d
Cir. 2006), and a district court “may decline to exercise supplemental jurisdiction” if it “has
dismissed all claims over which it has original jurisdiction,” 28 U.S.C. § 1367(c)(3). A district
court should, in deciding whether to exercise its supplemental jurisdiction, balance the traditional
“values of judicial economy, convenience, fairness, and comity.” Carnegie–Mellon Univ. v.
Cohill, 484 U.S. 343, 350 (1988). Both the Second Circuit and the Supreme Court have held
that, as a general rule, “when the federal claims are dismissed the ‘state claims should be
dismissed as well.’” In re Merrill Lynch Ltd. P’ships Litig., 154 F.3d 56, 61 (2d Cir. 1998)
(quoting United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966)). Although the exercise of
supplemental jurisdiction is discretionary, the ordinary case “will point toward declining
jurisdiction over the remaining state-law claims.” Id. (citing Carnegie-Mellon, 484 U.S. at 350
n.7).
Here, no circumstances counsel in favor of exercising supplemental jurisdiction over
Harmon’s claims arising under New York law. The Court has done little more than resolve
motions to dismiss, which did not address the state law claims. The Court has not yet invested
the resources necessary to familiarize with these claims, let alone to resolve them. Nor do
convenience, fairness, or comity counsel in favor of retaining jurisdiction. The Court
accordingly declines to exercise supplemental jurisdiction over these claims. The SAC’s state
law claims against the defendants are dismissed without prejudice. Harmon is at liberty to re-file
those claims in state court.

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CONCLUSION

For the foregoing reasons, defendants' motions to dismiss the SAC are granted. The
Clerk of Court is respectfully directed to terminate all pending motions, and to close this case.

SO ORDERED.

P~A ~fi

Paul A. Engelmayer
United States District Judge
Dated: March 17,2014
New York, New York

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