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December 19, 1980

James L. CARTER, Plaintiff,
NEWBURGH POLICE DEPT., et al., Defendants

The opinion of the court was delivered by: MOTLEY


This is an action brought pro se by a New York State prisoner under 42 U.S.C. § 1983 against defendants Newburgh Police Department, Orange County Legal Aid Staff, Orange County Court, and Wilbur K. Sherwood, Sheriff of the Orange County Jail, for alleged violations of his civil rights. *fn1" Plaintiff requests declaratory and injunctive relief, as well as monetary damages.

 The question presented is whether the plaintiff's claims are sufficient under § 1983 to withstand motions to dismiss filed by three of the four defendants. *fn2" It is well-settled that pro se complaints must be examined liberally and dismissed only if it appears that beyond doubt the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 595-96, 30 L. Ed. 2d 652 (per curiam), rehearing denied, 405 U.S. 948, 92 S. Ct. 963, 30 L. Ed. 2d 819 (1972). The court also notes that on a motion to dismiss for failure to state a claim upon which relief can be granted, the factual allegations of the plaintiff's complaint must be taken as true. Blassingame v. United States Attorney General, 387 F. Supp. 418 (S.D.N.Y.1975). When measured by this liberal standard, it is the opinion of the court that the plaintiff's complaint must be dismissed against defendants Newburgh Police Department, Orange County Legal Aid Staff and Orange County Court for plaintiff's failure to exhaust his state remedies. However, the claims against Sheriff Wilbur K. Sherwood should not be dismissed, since it appears that the plaintiff has stated a valid § 1983 claim against this defendant.

 The plaintiff, James L. Carter, was arrested on January 29, 1980 by officers of the Newburgh Police Department. He was indicted and subsequently convicted of grand larceny and attempted coercion following a jury trial. From the time of his arrest until approximately September, 1980, the plaintiff was incarcerated in the Orange County Jail under the supervision of defendant Sherwood. While his state court trial was pending, the plaintiff sought writs of habeas corpus in both the Orange County Court and the Orange County Supreme Court. These motions were denied and the plaintiff has pursued no further habeas corpus actions in the New York state courts.


 The plaintiff challenges the legality of his arrest and interrogation by the Newburgh Police Department. His principal claims are that he was questioned in violation of his constitutional rights and misled by acts constituting "entrapment" by police officers, who allegedly offered a "deal" in return for his statements, resulting in an illegal confession. The plaintiff also contends that an officer tampered with key evidence in his criminal trial.

 The plaintiff's complaint against the Orange County Court seems to be that he was denied due process with respect to his writ of habeas corpus and his criminal indictment, and denied the opportunity to present a fair defense at his trial. The plaintiff further claims that the court's failure to advise him of his availability of appellate review violated his constitutional rights. He also complains of other allegedly improper acts by the Orange County Court.

 The plaintiff charges that improper representation and malpractice by attorneys for the Orange County Legal Aid Staff violated his constitutional rights and deprived him of an adequate defense. He also alleges that there was a conspiracy between his Legal Aid attorneys and the prosecutorial staff of Orange County, with the intent to deprive him of his civil rights, as well as a breach of the attorney-client privilege by the defendant attorneys.

 The defendants contend that the plaintiff's claims challenge the legality of his confinement, and should properly be brought in a habeas corpus petition. Since such an action is barred in the federal courts by the plaintiff's failure to exhaust state remedies, defendants argue, the action must be dismissed. This court agrees with the argument presented by the defendants.

 In Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S. Ct. 1827, 1841, 36 L. Ed. 2d 439 (1973), the Supreme Court held that "when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus," thus triggering the exhaustion rule. 411 U.S. at 490-92, 93 S. Ct. at 1836, 1837. In examining the legislative history of the Civil Rights Act, the Preiser Court concluded that "Congress has determined that habeas corpus is the appropriate remedy for state prisoners attacking the validity of the fact or length of their confinement, and that specific determination must override the general terms of § 1983." 411 U.S. at 490, 93 S. Ct. at 1836 (emphasis supplied). As the Court noted, the exhaustion rule in federal habeas corpus actions, codified in 28 U.S.C. § 2254, is based upon considerations of federal-state comity. "The strong considerations of comity that require giving a state court system that has convicted a defendant the first opportunity to correct its own errors thus also require giving the States the first opportunity to correct the errors made in the internal administration of their prisons." 411 U.S. at 492, 93 S. Ct. at 1837 (citations omitted); accord, Picard v. Connor, 404 U.S. 270, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971); Fulford v. Klein, 529 F.2d 377 (5th Cir. 1976), aff'd on issue of exhaustion, 550 F.2d 342 (5th Cir. 1977) (en banc, per curiam).

 Although Preiser specifically limited its holding to cases in which equitable relief, and not monetary damages, were sought, *fn3" many subsequent decisions have held that where a prisoner's suit for monetary damages under § 1983 would require a federal court to rule upon the validity of a state criminal conviction, the exhaustion requirement should likewise be applicable. Meadows v. Evans, 529 F.2d 385 (5th Cir. 1976), aff'd, 550 F.2d 345 (en banc, per curiam), cert. denied, 434 U.S. 969, 98 S. Ct. 517, 54 L. Ed. 2d 457 (1977); Fulford v. Klein, supra; Guerro v. Mulhearn, 498 F.2d 1249 (1st Cir. 1974); Doe v. Russotti, 503 F. Supp. 942 (S.D.N.Y.1980) (memorandum opinion); Won v. People of New York, No. 77 Civ. 3743 (S.D.N.Y. Jan. 29, 1979); Holland v. Rubin, 460 F. Supp. 1051 (E.D.N.Y.1978); cf., Cicero v. Olgiati, 410 F. Supp. 1080 (S.D.N.Y.1976) (Preiser interpreted as requiring exhaustion of state remedies where § 1983 suit is "close to the core" of habeas corpus); Williams v. Ward, 556 F.2d 1143 (2d Cir. 1977) (plaintiff permitted to maintain s 1983 action for injunctive relief from allegedly false information in his prison files; fact or duration of his confinement not an underlying issue). Contra, Glinton v. Carey, No. 78 Civ. 819 (S.D.N.Y. Jan. 26, 1977).

 This court agrees that the appropriate remedy in such situations is a writ of habeas corpus, notwithstanding the fact that the plaintiff may choose to characterize his suit as a § 1983 action for "damages." Moreover, in the present action the plaintiff, while requesting monetary damages, has specifically asked the court to review the constitutionality of the defendants' acts by way of declaratory relief and ordering a new trial.

 Since the determination of the plaintiff's claims against the Newburgh Police Department, the Orange County Legal Aid Staff and the Orange County Court will necessarily involve a decision on the validity of his state conviction, we hold that the plaintiff must bring his claim in the form of a petition of habeas corpus, after exhausting his available state remedies. Although the plaintiff has brought habeas corpus actions as far as the Orange County Supreme Court, it cannot be said that state remedies have been exhausted until the highest court of the state has had "a fair opportunity" to consider the plaintiff's claims and to "correct that asserted constitutional defect" in the plaintiff's conviction. Picard v. Connor, supra, 404 U.S. at 276, 92 S. Ct. at 512; accord, Guerro v. Mulhearn, supra; cf., Gruttola v. Hammock, No. 78 Civ. 3940 (S.D.N.Y. June 12, 1980). Plaintiff's claims against these defendants are therefore dismissed, without prejudice to the plaintiff's maintaining a future action for monetary damages and for a federal writ of habeas corpus, after exhausting his state remedies.

 The Legal Aid Staff also argues that the plaintiff failed to state a cause of action against it since the alleged acts did not involve state action. The court notes that it cannot adopt this position. While a court-appointed attorney defending an indigent client involves a private relationship, which does not reach the threshold requirement of state action, Lefcourt v. Legal Aid Society, 445 F.2d 1150 (2d Cir. 1971); Harris v. Ward, 418 F. Supp. 660 (S.D.N.Y.1976), it is also true that willful participation by a private individual, such as an attorney, in joint activity with the state or its agents in order to deprive one of constitutionally protected rights has been held to ...

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