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.
Dated: White Plains, New York
July 22, 1992
VINCENT L. BRODERICK, U.S.D.J.