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PYLES v. KEANE

March 11, 1976

WALTER PYLES a/k/a SONNI PYLES and CHARLES PYLES a/k/a TIMBUK PYLES, Plaintiffs,
v.
DETECTIVE JOHN KEANE, SHIELD NO. 1543; DETECTIVE KELLER OR CALLOWAY, SHIELD NO. UNKNOWN; DETECTIVE JOHN DOE, SHIELD NO. UNKNOWN, and OTHER POLICE OFFICERS PRESENTLY UNKNOWN, Defendants



The opinion of the court was delivered by: CONNER

CONNER, D.J.:

 Plaintiffs, currently incarcerated pursuant to State court convictions for robbery, seek a declaratory judgment and money damages for alleged violations of their civil rights, under 42 U.S.C. §§ 1981, 1983, 1985, 1986 and 1988. *fn1" Jurisdiction over their claims is grounded on 28 U.S.C. §§ 1341 and 1343. Defendant Keane has moved to dismiss, pursuant to Rule 12(b) F.R.Civ.P., and has moved, in the alternative, for summary judgment pursuant to Rule 56 F.R.Civ.P.

 I.

 At the outset, this Court must observe that the motions before it stand in an uncommon procedural posture, i.e., plaintiffs have not, to date, submitted any papers in direct response to the merits of those motions. Rather, in a series of letters to this Court, plaintiffs have asked for (and have received) several extensions of their time to answer and have further requested that counsel be appointed to act on their behalf in the prosecution of the present action.

 Although plaintiffs had been represented by counsel at the time the instant complaint was framed and filed, their attorneys subsequently moved to be relieved; *fn2" that motion was granted by Judge Bauman, to whom the action had been originally assigned. On July 2, 1974, this Court appointed substitute counsel who had agreed to represent plaintiffs on a pro bono basis; thereafter, she too requested, and was granted, leave to withdraw from the case. *fn3" Since that time, plaintiffs have made repeated requests that new substitute counsel be appointed. Each time, plaintiffs have cited McClain v. Manson, 343 F. Supp. 382 (D.Conn. 1972), for the proposition that the appointment and compensation of counsel for a civil rights action plaintiff is authorized under the Criminal Justice Act. By letter dated April 22, 1975, the Court advised plaintiffs that, as acknowledged in McClain itself, "'there is no provision for appointment [of counsel] when prisoners present claims under § 1983'." This Court further noted that counsel had nevertheless been appointed in McClain on the ground that

 
"'the statutory reference selected by prisoners untutored in the law should [not] determine whether their court-appointed attorneys receive compensation' and 'there seems to be no reason to ignore the essential habeas corpus nature of these petitions for purposes of the Criminal Justice Act'."

 Thus, as this Court explained to plaintiffs,

 
"counsel was appointed in McClain pursuant to 18 U.S.C. § 3006A(g), which makes the appointment of counsel in habeas corpus cases discretionary with the district court when it is determined that the interests of justice so require. Unlike [the complaint in] the McClain case, the complaint in your case was framed by a team of three attorneys who were serving as your counsel at that time. Under these circumstances, it would be impossible to appoint counsel in your case pursuant to the Criminal Justice Act."

 In another letter to plaintiffs, this Court suggested that plaintiffs contact the Prisoners' Rights Project for assistance in obtaining legal representation. Whatever steps that plaintiffs may have taken in this regard, they apparently have not been able to secure counsel to date. Despite plaintiffs' insistence that they require additional extensions of time to answer the present motions and that a decision thereon, in the absence of answering papers, would necessarily be "unbalanced," this Court cannot further defer the disposition of those motions, filed almost one year ago. Plaintiffs may nonetheless take some solace from this Court's observation that the quality of defendants' own submissions on these motions reflects an effort of so little moment that the adversary scales are not so heavily weighted against plaintiffs as might ordinarily be expected.

 II.

 The present action has its roots in the March 6, 1971 arrest and subsequent detention of plaintiffs on robbery and related charges resulting in a series of criminal indictments. The complaint alleges that defendants, as police officers acting under color of state law, subjected plaintiffs to unlawful search, seizure, and detention and to unconstitutional out-of-court identifications and deprived plaintiffs of their right to counsel. Defendant Keane challenges these allegations on two grounds. First, defendant argues, so far as those allegations are intended to attack plaintiffs' convictions, they must be regarded as a petition for a writ of habeas corpus and therefore cannot be entertained by this Court unless and until plaintiffs have exhausted their state remedies. This argument need not detain us long: as indicated above, the complaint before this Court gives rise squarely and solely to a civil rights action, for which there is no exhaustion requirement. See, e.g., Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961); Rodriguez v. McGinnis, 456 F.2d 79 (2d Cir. 1972) (en banc) Sostre v. McGinnis, 442 F.2d 178, 182 (2d Cir. 1971) (en banc), cert. denied, 404 U.S. 1049, 92 S. Ct. 719, 30 L. Ed. 2d 740 (1972).

 Second, according to defendant, plaintiffs' claims are presently barred by the operation of collateral estoppel. Defendant contends that the collateral estoppel principle applies herein for the following reasons:

 
1) after a suppression hearing held prior to plaintiffs' trial on one of the abovementioned indictments, a decision was rendered by New York Supreme Court Justice Ivan Warner, wherein defendants' March 6, 1971 searches, seizures, and arrests of plaintiffs in the latters' respective apartments were ruled to have been lawfully executed; and
 
2) on November 7, 1973, plaintiff Charles Pyles entered a plea of guilty to the crime of Robbery in the Third Degree. That plea covered indictments which referred, inter alia, to the robbery of one William Callahan, whose "show-up" confrontation with plaintiffs ...

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