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D'SOUZA v. HOWELL

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


July 22, 1992

SEBASTIAN ROBERT D'SOUZA, Plaintiff, against BERYL HOWELL, A.U.S.A., JOSEPH P. DENEHY, Sp. Agent DEA ARNOLD MOORIN, Sp. Agent DEA HAROLD ANDERSON, Sp. Agent DEA ELIZABETH HORAN, U.S.P.O. SUSAN G. KELLMAN, Attorney-at-Law, Defendants.

BRODERICK

The opinion of the court was delivered by: VINCENT L. BRODERICK

MEMORANDUM ORDER

VINCENT L. BRODERICK, U.S.D.J.

 This is a prisoner's civil rights action *fn1" seeking damages from various federal officials and an attorney in connection with alleged mistreatment at the time of arrest and improper conduct in connection with his prosecution for narcotics violations. The federal defendants have moved to dismiss. The complaint is dismissed in its entirety effective immediately as to the federal defendants, and 30 days from the date of entry of this order unless cause to the contrary is shown as to defendant Kellman, based upon:

 (a) res judicata as to the federal defendants, and

 (b) both collateral estoppel and failure to state a claim as to the remaining nonfederal defendant attorney Susan G. Kellman because of absence of any factual allegations against her as distinct from legal conclusions. *fn2"

 Plaintiff was convicted upon a plea of guilty to conspiring to import heroin, and the conviction was affirmed based in part upon rejection of claims that the plea was based on a conspiracy with government agents, or that he received ineffective assistance of counsel. United States v. Contractor (Robert Sebastian D'Souza, Defendant-Appellant), 926 F.2d 128, 133-34 (2d Cir. 1991). *fn3"

 D'Souza filed 89 Civ. 670 (E.D.N.Y.) against the United States Attorney for the Eastern District of New York and current defendants Denhy, Moorin and Anderson, alleging mistreatment upon his arrest and that he should not have been prosecuted because of numerous misstatements and other improprieties in the course of the criminal investigation. A second complaint in the Eastern District of New York (89 Civ. 4114) against the same defendants and additional parties including defendant Howell, alleged that plaintiff's constitutional rights were violated by his arrest and prosecution. The two actions were consolidated. In decisions dated July 31, 1991 and March 16, 1992 (responsive to application for reconsideration) Judge Sifton granted (and reaffirmed the grant of) summary judgment to defendants.

 The allegations against the federal defendants in the present complaint, 91 Civ. 3768, are substantially identical to those in the consolidated 89 Civ. 670 (E.D.N.Y.). Adjudication has been had as to these allegations and they have been dismissed. Res judicata is thus a bar to D'Souza's complaint against the federal defendants.

 The allegations against Ms. Kellman in paragraph 14 at p. 5-6 of 91 Civ. 3768 essentially charge her with failure to represent plaintiff properly or effectively in his criminal case, albeit using colorful pejorative language rather than factual details to press those allegations. These charges are inconsistent with the findings that plaintiff's plea of guilty was properly accepted, and that the claim of ineffective assistance of counsel was meritless, United States v. D'Souza, 926 F.2d 128, 133-34 (2d Cir. 1991).

 Having lost in litigation dealing with the same issue, plaintiff cannot proceed with the same claim against his former counsel. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 58 L. Ed. 2d 552, 99 S. Ct. 645 (1979); Blonder Tongue Laboratories v. University of Illinois Foundation, 402 U.S. 313, 28 L. Ed. 2d 788, 91 S. Ct. 1434 (1971); Schwartz v. Public Administrator, 24 N.Y.2d 65, 71, 298 N.Y.S.2d 955, 246 N.E.2d 725 (1969).

 Moreover, the allegations against Ms. Kellman are entirely conclusory, lacking any detailed information. Plaintiff's typewritten complaint shows verbal ability sufficient to set forth specific factual information if it existed. Perjury, conspiracy, bad faith, and retaliation are alleged, and strong language is used, but concrete facts are lacking.

 Because Ms. Kellman has made no motion alerting plaintiff that his complaint against her would be reviewed, plaintiff is granted leave to submit within 30 days of entry of this order any reasons available to him why the above disposition should be reconsidered. The reasons given in this memorandum order as to why the complaint against Ms. Kellman are untenable are tentative and intended to provide plaintiff with fair warning that the points described must be met for the complaint against Ms. Kellman to survive.

 Dismissal of the complaint as to Ms. Kellman will be stayed for 45 days to permit plaintiff to make such a showing if he is able to do so, and to submit a motion for leave to amend as to Ms. Kellman only, accompanied by a proposed amended complaint as to her only. Such complaint may not be served or filed as a pleading unless such leave is granted.

 Absent a showing suggesting that dismissal of the complaint as to Ms. Kellman is inappropriate, the complaint against her will be dismissed. Absent such a showing, retaining already-adjudicated conclusory charges against D'Souza's former counsel where there is no basis to do so would improperly discourage attorneys from willingness to represent criminal defendants such as plaintiff. *fn4"

 SO ORDERED.

 Dated: White Plains, New York

 July 22, 1992

 VINCENT L. BRODERICK, U.S.D.J.


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