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April 6, 1973

UNITED STATES of America ex rel. Michael A. McCLAUGHLIN et al., Plaintiffs,
The PEOPLE OF the STATE OF NEW YORK et al., Defendants

Judd, District Judge.

The opinion of the court was delivered by: JUDD


JUDD, District Judge.

 Defendant Legal Aid Society has moved to dismiss the complaints against it for failure to state a claim upon which relief can be granted. F.R. Civ. P. 12(b)(6).

 The complaint in 73-C-55 asserts as a first cause of action that both The Legal Aid Society itself and the panel of attorneys assigned to indigents under Article 18-B of the County Law, McKinney's Consol. Laws, c. 11, fail to consult with plaintiffs at their place of detention or to conduct any effective fact-finding and that The Legal Aid Society refuses to submit requested motions on behalf of the plaintiff class. The second cause of action recites that the congested condition in the Kings County Supreme Court has forced Legal Aid attorneys to take a case load which precludes the necessary attention to individual defendants. The third cause of action recites that The Legal Aid Society's excessive burden makes it necessary for defendants to submit pro se motions which the Clerk of the Criminal Term, also a defendant, refuses to accept.

 The complaint in 73-C-113 asserts in its first cause of action that The Legal Aid Society and others are responsible for protecting indigent defendants' state and constitutional rights; that there have been various systematic violations of the legal and constitutional rights of persons accused of felonies, including forcing them to depend on inefficient and inadequate attorneys and condoning practices of court assigned counsel which are contrary to the canons of professional ethics; that counsel assigned through The Legal Aid Society fail to consult with their clients or to formulate effective and adequate defenses; and as a second cause of action that The Legal Aid Society fails to assign more black and Puerto Rican attorneys to indigent defendants.

 Both actions are described as class actions on behalf of all indigent incarcerated defendants indicted for felony in the County of Kings. Thus they supplement a prior pending action in this court, Wallace et al. v. Kern et al., 72-C-898, which was granted status as a class action by Memorandum and Order dated February 27, 1973 (after the filing of the two captioned McLaughlin actions). The present actions seek injunctive relief, and not damages.

 The facts alleged in the complaints must be taken as true for the purposes of this motion. In a pro se prisoner action, the complaints need not be as precise in their allegations as might be demanded of experienced attorneys. Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972).

 The Legal Aid Society relies on the cases which have held that an attorney appointed to represent an accused in a state criminal proceeding is not acting under color of state law and therefore is not subject to suit under the Civil Rights Act. E. g., Espinoza v. Rogers, 470 F.2d 1174 (10th Cir. 1972); Brown v. Duggan, 329 F. Supp. 207 (W.D. Pa. 1971).

 Almost uniformly, the cases cited represent suits for damages against individual attorneys based on their acts in individual cases. Most of the cases simply state that the Civil Rights Act does not encompass tort actions for malpractice.

 In none of the cases was there a request for equitable relief against concerted action among attorneys, state agencies and judges. The nearest example of such a case is Palermo v. Rockefeller, 323 F. Supp. 478 (S.D.N.Y. 1971), which related to non-compliance with an agreement to secure plaintiffs' release on parole. Judge Mansfield there refused to dismiss the complaint as against Parole Board officials and the Police Department representative, and granted leave to file an amended complaint against district attorneys and their assistants, although apparently not against private attorneys who had represented the plaintiffs. 323 F. Supp. at 486.

 Significantly, Judge Masterson stated in Myers v. Couchara, 313 F. Supp. 873, 874 (E.D. Pa. 1970):

We recognize that there may be cases where an attorney acts in conspiracy with state officers such that the attorney may lose his immunity to suit under the Civil Rights Act . . . This, however, is not such a case.

 See also Pugliano v. Staziak, 231 F. Supp. 347, 351 (W.D. Pa. 1964), aff'd, 345 F.2d 797 (3d Cir. 1965).

 In the present actions, the claims are not against individual attorneys, but against The Legal Aid Society itself, and against the City of New York and the judges who ...

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