Opinion
19-CV-2904 (LLS)
05-29-2019
DONALD J. POTTER, Plaintiff, v. JAMIE T. FERRARA, ESQ., Defendant.
ORDER OF DISMISSAL :
Plaintiff, currently incarcerated at Orange County Jail, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendant violated his rights under federal law. By order dated May 22, 2019, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis. The Court dismisses the complaint for the reasons set forth below.
Prisoners are not exempt from paying the full filing fee even when they have been granted permission to proceed in forma pauperis. See 28 U.S.C. § 1915(b)(1).
STANDARD OF REVIEW
The Court must dismiss a complaint, or portion thereof, that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the "strongest [claims] that they suggest," Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original).
BACKGROUND
On November 28, 2018, Plaintiff was arraigned in Orange County Court on several felony and misdemeanor counts. (See Compl. at 4.) The court appointed Defendant Ferrara to serve as Plaintiff's attorney in the criminal action. (Id.) Plaintiff alleges that Defendant has denied his right to a speedy trial by failing to file pre-trial motions, not coming to visit him, and failing to collect facts related to his case. (Id.) Plaintiff further alleges that Defendant "has been working with" the prosecution and withholding information and documents from him. (Id.) Plaintiff requests $100,000 in monetary damages. (Id. at 5.)
DISCUSSION
A. Section 1983 claims
A claim for relief under § 1983 must allege facts showing that each defendant acted under the color of a state "statute, ordinance, regulation, custom or usage." 42 U.S.C. § 1983. Private parties are therefore not generally liable under the statute. Sykes v. Bank of America, 723 F.3d 399, 406 (2d Cir. 2013) (citing Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001)); see also Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir. 2002) ("[T]he United States Constitution regulates only the Government, not private parties.") (internal quotation makes and citations omitted).
Absent special circumstances suggesting concerted action between an attorney and a state representative, see Nicholas v. Goord, 430 F.3d 652, 656 n.7 (2d Cir. 2005) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970)), the representation of a defendant by private counsel in state criminal proceedings does not constitute the degree of state involvement or interference necessary to establish a claim under § 1983, regardless of whether that attorney is privately retained, court-appointed, or employed as a public defender. See Bourdon v. Loughren, 386 F.3d 88, 90 (2d Cir. 2004) (citing Polk Cnty. v. Dodson, 454 U.S. 312, 324-25 (1981)); see also Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000) (holding that legal aid organization ordinarily is not a state actor for purposes of § 1983). While Plaintiff alleges that Defendant is "working with" the prosecution and "withholding information and documentation" from him, he fails to assert any facts supporting those allegations. Because Defendant is not a state actor, the Court dismisses Plaintiff's claim for failure to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).
B. Leave to amend
District courts generally grant a pro se plaintiff an opportunity to amend a complaint to cure its defects, but leave to amend is not required where it would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Because the defects in Plaintiff's complaint cannot be cured with an amendment, the Court declines to grant Plaintiff leave to amend his complaint.
CONCLUSION
The Clerk of Court is directed to reassign this matter to my docket, mail a copy of this order to Plaintiff, and note service on the docket. The Court dismisses Plaintiff's complaint, filed in forma pauperis under 28 U.S.C. § 1915(a)(1), pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
The Court certifies under 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 an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of Court is further directed to docket this as a "written opinion" within the meaning of Section 205(a)(5) of the E-Government Act of 2002. SO ORDERED. Dated: May 29, 2019
New York, New York
/s/_________
LOUIS L. STANTON
U.S.D.J.