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PALERMO v. ROCKEFELLER

January 15, 1971

Thomas PALERMO and Sheldon Saltzman, Plaintiffs,
v.
Nelson A. ROCKEFELLER, Russell Oswald, E. K. Jones, John Doe, Richard Roe (Parole Board Commissioners), Thomas Mackell, Fred Ludwig, Thomas Demaskos, Arthur A. Darrigrand, John A. Braistead, Mr. Ralph DiIorio, Peter T. Farrell, Michael Kern, John V. Lindsay, Howard Leary, John O'Connors, Norman Rein, Esq., Jacob Esveroff, Esq., the Provident Loan Society, the State of New York, the City of New York, Defendants


Mansfield, District Judge.


The opinion of the court was delivered by: MANSFIELD

MANSFIELD, District Judge.

This action brought under 42 U.S.C. §§ 1983 and 1985 and 28 U.S.C. § 1343(3) and (4) involves alleged non-compliance with the terms of an elaborate agreement allegedly worked out between plaintiffs, who are now incarcerated at Sing Sing Prison, and defendants, all of whom are alleged to have been either directly or indirectly connected with the agreement.

 On February 17, 1969, when plaintiffs were scheduled to appear for trial in the New York Supreme Court for Richmond County on charges of robbery and grand larceny, a robbery was committed in Queens County in which 2,000 pieces of jewelry valued at approximately $4,000,000 were taken from the Provident Loan Society of New York ("Provident"). On June 11, 1969, a grand jury in Queens County indicted plaintiffs for the Provident robbery. On June 27, 1969, plaintiffs were convicted by a jury in Richmond County of robbery in the first degree, convictions based on incidents unrelated to the Provident robbery. Plaintiff Palermo was sentenced to imprisonment of 25 years on the robbery count and 7 years on the larceny charge; plaintiff Saltzman was sentenced to 15 years and 5 years on the corresponding counts. All of the sentences were to run concurrently.

 In an effort to recover the jewelry taken in the Provident robbery, negotiations were conducted, beginning during the Richmond County trial, between the District Attorney for Queens County, Thomas J. Mackell ("Mackell"), and plaintiffs who were represented by their attorney, Jacob R. Esveroff ("Esveroff"). It also appears that a representative of the New York City Police Department, Mr. John O'Connors ("O'Connors"), and an attorney for Provident, Norman Rein ("Rein"), were present at and participated in the negotiations to some extent. After some deliberation, plaintiffs agreed to procure the return of the proceeds of the Provident robbery and to plead guilty to the charges against them arising from it. Mackell agreed to appear at plaintiffs' sentencing on the foregoing guilty pleas in Queens County Court, to intercede on behalf of plaintiffs with the New York State Parole Board ("Parole Board") in an effort to secure plaintiffs' release on parole after 18 months of their Richmond County sentences had been served, to move to dismiss an assault charge then pending against Palermo in Queens County, and to request the District Attorney of Oneida County to drop charges against plaintiffs relating to possession of a stolen automobile. Mackell rejected plaintiffs' request for a reward of up to $100,000 for return of the jewelry, but the other elements of the agreement were substantially as requested by plaintiffs through their attorney.

 On or about October 24, 1969, most of the proceeds of the Provident robbery were returned to Mackell's representatives. On April 16, 1970, plaintiffs pleaded guilty to the crime of robbery in the third degree in Supreme Court, Queens County, in connection with the Provident robbery. On April 24, 1970, Mackell wrote to the Parole Board requesting consideration for plaintiffs on their Richmond County sentences. This letter appears to have been unavailing, however, as the Parole Board denied plaintiffs' application for release on parole. Mackell also communicated with the Oneida County District Attorney regarding the charge of possession of a stolen motor vehicle. That charge is still pending against plaintiffs. On September 30, 1970, an Assistant District Attorney appeared in Queens County Supreme Court, in which plaintiffs were to be sentenced upon their guilty pleas, to inform the sentencing judge that the proceeds of the robbery had been returned. At that time, Palermo moved to withdraw his plea of guilty because he had not been paroled as scheduled on August 17, 1970. The sentencing of both plaintiffs for their part in the Provident robbery was adjourned pending the determination of Palermo's motion. Hearings on the motion are now in progress in Queens County Supreme Court.

 On August 25, 1970, plaintiffs commenced this action against numerous defendants alleging non-compliance with the agreement described above. They now seek unconditional release from custody, an injunction against the initiation or continuance of further prosecutions against them, an order for return of the jewelry which they returned to Provident, damages in the amount of $1,000,000 plus $25 for each day spent in custody beyond August 17, 1970, the date at which they allege they were to be released pursuant to the agreement, and reimbursement for the costs of prosecuting the action.

 We deal now with motions made on behalf of each of the 22 defendants to dismiss the action. We shall deal with the motions of the defendants as they fall into the following categories, and in the following order: (1) the State of New York and the City of New York, (2) New York Supreme Court Justices Kern and Farrell, (3) Mayor Lindsay, former Police Commissioner Leary, and Governor Rockefeller, (4) attorneys Esveroff, Rein, and the firm of Rein, Mound & Cotton, (5) Provident, (6) defendant Darrigrand, Oneida County District Attorney, (7) various Parole Board officials, (8) various District Attorneys and their assistants in Richmond and Queens Counties, and (9) O'Connor.

 Section 1983 provides a federal remedy for the actions of "persons." It is settled law that a state is not a person within the meaning of this section. Fear v. Commonwealth of Pennsylvania, 413 F.2d 88 (3d Cir. 1969); Israel v. City Rent and Rehabilitation Administration of City of New York, 285 F. Supp. 908 (S.D.N.Y. 1968). The complaint is therefore dismissed as to the State of New York.

 As to the defendant City of New York, the mandate of the Supreme Court is equally clear. "The response of the Congress to the proposal to make municipalities liable for certain actions being brought within federal purview by [§ 1983] was so antagonistic that we cannot believe that the word 'person' was used in this particular Act to include them." Monroe v. Pape, 365 U.S. 167, 191, 81 S. Ct. 473, 486, 5 L. Ed. 2d 492 (1961) (footnote omitted). Fisher v. City of New York, 312 F.2d 890 (2d Cir.), cert. denied, 374 U.S. 828, 83 S. Ct. 1866, 10 L. Ed. 2d 1051 (1963). Although this seemingly definitive pronouncement may not bar a suit when only injunctive relief is sought, Schnell v. City of Chicago, 407 F.2d 1084, 1086 (7th Cir. 1969); Adams v. City of Park Ridge, 293 F.2d 585 (7th Cir. 1961), and plaintiffs in this case seek an injunction among other things [Compl. P 2(b)], plaintiffs primarily seek damages, recission, or specific performance of the agreement: the only form of injunctive relief which might issue against the City would be an injunction restraining further participation of its employees and agents in this and other plea negotiations, or perhaps merely restraining further breaches of agreements reached in such negotiations. Viewing the allegations in the complaint in a light most favorable to plaintiffs, it appears that the only agent of the City who was directly involved in the agreement to any extent was defendant O'Connors, who participated in the discussions leading to the agreement, personally received the jewelry, and then conveyed the jewels to Provident. It is not alleged that O'Connors has failed to comply with any promises that he may allegedly have made to plaintiffs. On these facts, an injunction against the City is unwarranted. The action against the City is therefore dismissed in all respects.

 We next consider the allegations concerning Michael Kern and Peter T. Farrell, Justices of the Supreme Court of the State of New York. These allegations relate to the part which Justice Kern played in negotiations regarding the Provident robbery, consisting of discussions before trial in Richmond County, during trial, and prior to sentencing there. Compl. P 5(a) and (b). Plaintiffs allege that references to those conferences are to be found in the trial minutes of the Richmond County case, Compl. P 5(c), which are not now before us. It is alleged that plaintiffs were offered a maximum sentence of five years in the Richmond County matter if they would arrange for the return of the jewels, Compl. P 5(d), and that plaintiffs were told that they would never be paroled if they did not arrange for the return of the jewels, Compl. P 5(d), but these assertions are not attributed directly to either Judge Kern or Judge Farrell. The complaint, indeed, does not even allege that Judge Farrell participated in the plea negotiations.

 Section 1983 did not abolish the common law immunity of judges.

 
"It is a judge's duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation." Pierson v. Ray, 386 U.S. 547, 554, 87 S. Ct. 1213, 1218, 18 L. Ed. 2d 288 (1967).

 A judge is immune from suits, at least those seeking damages and not injunctive relief, cf. Law Students Civil Rights Research Council, Inc. v. Wadmond, 299 F. Supp. 117, 123 (S.D.N.Y. 1969), arising from the performance of his duties as long as he is acting within the judicial role on matters that are within his jurisdiction, Bradford Audio Corp. v. Pious, 392 F.2d 67, 73 (2d Cir. 1968); Fanale v. Sheehy, 385 F.2d 866 (2d Cir. 1967).

 Since the criminal proceedings brought against plaintiffs in Richmond and Queens Counties were clearly within the jurisdiction of Justices Kern and Farrell, we need deal only with the question of whether the actions of these judges, assuming for purposes of the motion to dismiss that the allegations concerning their actions are true, departed sufficiently from the judicial role to justify depriving them of immunity, cf. ...


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