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RESPASS v. NEW YORK CITY POLICE DEPT.

May 19, 1994

KENNETH RESPASS (LEANDER), Plaintiff,
v.
NEW YORK CITY POLICE DEPARTMENT, NEW YORK CITY DEPARTMENT OF CORRECTIONS, NEW YORK CITY LEGAL AID SOCIETY, QUEENS COUNTY DISTRICT ATTORNEY, Defendants.



The opinion of the court was delivered by: I. LEO GLASSER

 GLASSER, United States District Judge:

 Defendant the Legal Aid Society of New York, sued here as the New York City Legal Aid Society ("Legal Aid"), moves to dismiss the Complaint, or, alternatively, for summary judgment. Plaintiff pro se Kenneth Leander Respass ("Respass") has submitted papers in opposition to the motion, and also has cross-moved for leave to amend his Complaint; only defendant Legal Aid has opposed the cross-motion. For the reasons set forth below, Legal Aid's motion to dismiss is granted *fn1" and plaintiff's cross-motion to amend the Complaint is granted in part and denied in part.

 FACTS

 Respass commenced this action against the New York City Police Department (the "Police Department"), the New York City Department of Corrections (the "Department of Corrections"), Legal Aid and the Queens County District Attorney (the "District Attorney") by Complaint filed December 23, 1993.

 For purposes of this motion to dismiss, the following allegations in the Complaint are accepted as true. Plaintiff was arrested without cause on September 16, 1993, and was charged with criminal possession of a controlled substance in the third degree. He thereafter was prosecuted notwithstanding the "plain" deficiencies in the claims against him.

 On September 21, 1993, Legal Aid attorney Daniel Liebersohn was assigned to represent plaintiff. Liebersohn thereafter is alleged to have conspired with the Police Department and the District Attorney "to help further the conspiracy conjured up by" the police Department. In violation of plaintiff's rights, Liebersohn forced plaintiff to make an unknowing, involuntary and unintelligent guilty plea "to a complaint which was devoid of prerequisite corroborating affidavit and lab report," and allowed the process "to play itself out" while aware of its illegality. *fn2" More specifically, in his papers in opposition to Legal Aid's motion to dismiss, plaintiff has alleged that Liebersohn "never considered consciously putting up a defence [sic] on behalf of plaintiff. His main objective was to comply with the wishes of the Assistant District Attorney, of having plaintiff plead guilty, though plaintiff stressed the fact that he wouldn't plead guilty." Plaintiff's Reply Memorandum of Law ("Pl.'s Mem.") at p. 3. In Affidavit D annexed to his Reply Memorandum of Law, plaintiff further alleges that Liebersohn told him that he would be "stupid, foolish [and] dumb" not to accept the plea agreement, and that plaintiff ultimately was made to feel that he had no choice but to accept the agreement. When he went before the court for his plea allocution, plaintiff admitted that he was in possession of a controlled substance for his own consumption; when the court refused the plea, his counsel advised him that he was required to admit that he intended to sell the drugs; plaintiff unwillingly stated as much; and the court accepted the plea. Aff. D at pp. 1-2.

 On October 12, 1993, plaintiff informed the judge in the New York State Supreme Court, Queens County, that he wished to withdraw his guilty plea because it was not entered knowingly, voluntarily and intelligently. *fn3" The court reassigned counsel to represent plaintiff, and on October 18, 1993, directed both parties to submit motions regarding the withdrawal of the guilty plea. In his motion to withdraw, *fn4" plaintiff, who for some unexplained reason was proceeding pro se, argued that he was denied his rights to due process and equal protection of the law when he entered his plea without first being informed of his rights to be heard and indicted by the grand jury, and that his plea therefore was unknowing, involuntary and unintelligent. The state court denied plaintiff's motion to withdraw his guilty plea on December 6, 1993.

 Plaintiff now seeks damages from all defendants in their "official" and "individual" capacities for his false arrest, malicious prosecution and violation of his "civil, state and federal rights."

 DISCUSSION

 I. Cross-Motion for Leave To Amend the Complaint

 Turning first to plaintiff's cross-motion for leave to amend the Complaint, because plaintiff filed his motion to amend subsequent to the filing of an Answer by the Police Department and the Department of Corrections, *fn5" he may not amend the Complaint as of right; rather, pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, leave of the court is required. See Fed. R. Civ. P. 15(a). The Supreme Court has interpreted Rule 15(a) to permit amendments only when the party seeking the amendment (1) has not unduly delayed, (2) is not acting in bad faith or with a dilatory motive, (3) when the opposing party will not be unduly prejudiced by the amendment and (4) when the amendment is not futile. Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962); see also Thomas v. New York City, 814 F. Supp. 1139, 1145 (E.D.N.Y. 1993); Storwal Int'l, Inc. v. Thom Rock Realty Co., L.P., 784 F. Supp. 1141, 1143 (S.D.N.Y. 1992). The grant or denial of a motion to amend is within the sound discretion of the district court, Sugrue v. Derwinski, 808 F. Supp. 946, 951 (E.D.N.Y. 1992); however, leave to amend should be freely given, particularly in the case of a pro se civil rights plaintiff who has not yet had the benefit of discovery. Mathis v. Clerk of First Dep't, Appellate Div., 631 F. Supp. 232, 235 (S.D.N.Y. 1986).

 A. The Proposed Amendments

 Here, plaintiff seeks leave to amend the Complaint in order to name as defendants the arresting officer, Timothy P. Breen; the warden of the New York City Department of Corrections, Edward Riley; and the Assistant District Attorney assigned to his case, Stephen Sturman. Plaintiff is granted leave to amend his Complaint to name the additional defendants; however, the court must consider whether permitting the substantive ...


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