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LEVY v. LERNER

May 26, 1994

DENNIS LEVY, Plaintiff,
v.
ALFRED LERNER, Judge Chief Administrator Supreme Court Queens County; CHARLES THOMAS, Judge Supreme Court, K-5 Queens County; RICHARD BROWN, Prosecutor Queens County; RICHARD SHANKLEY, Assistant District Attorney Queens County; JOHN DOE, Assistant District Attorney Queens County, in their individual and official capacities, Defendants.



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

 GLASSER, United States District Judge:

 Pro se plaintiff Dennis Levy commenced this action by filing a Complaint on September 8, 1993. Plaintiff has named as defendants the Honorable Alfred Lerner and the Honorable Charles Thomas, Justices of the Supreme Court of the State of New York, Queens County (collectively the "State Justices"), as well as Richard Brown, the Queens County District Attorney, and Richard Shanley *fn1" and John Doe, Assistant District Attorneys in Queens County (collectively the "District Attorney defendants"). The State Justices and the District Attorney defendants have filed separate motions to dismiss; for the reasons described below, both motions are granted.

 As a preliminary matter, subsequent to receiving the State Justices' motion to dismiss, plaintiff filed a motion for leave to amend the Complaint. Rule 15(a) of the Federal Rules of Civil Procedure states that "[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served. . . ." (emphasis added). Because a motion to dismiss does not constitute a responsive pleading under Rule 15(a), no responsive pleading has been served in this case, and plaintiff is entitled to amend the Complaint "as a matter of course." See Centifanti v. Nix, 865 F.2d 1422, 1431 n.9 (3d Cir. 1989); Vernell v. United States Postal Serv., 819 F.2d 108, 110 (5th Cir. 1987) ("A motion to dismiss is not a responsive pleading and therefore does not extinguish the right to amend an initial pleading."). This court accordingly will treat defendants' motions to dismiss as pertaining to the Amended Complaint.

 FACTS

 A. The Underlying State Criminal Proceeding

 For purposes of this motion to dismiss, the following allegations in the Amended Complaint will be accepted as true. In January 1993, plaintiff, an African American, was indicted on two counts of robbery in the first degree and two counts of robbery in the second degree under Queens County Indictment number 5853/92. Am. Compl. P 8. Justice Lerner, the judge alleged to be "responsible for the administration of the Queens Supreme Court," Am. Compl. P 3, assigned Justice Thomas to preside over the prosecution of the plaintiff. Am. Compl. P 10. Richard Brown is alleged to have assigned Assistant District Attorneys ("ADAs") Shanley and Doe to prosecute the case. Am. Compl. P 8.

 Plaintiff alleges that he appeared before Justice Thomas in January 1993, at which time ADA Shanley requested that bail be set at $ 100,000 and plaintiff asked for lower bail or to be released on his own recognizance; Justice Thomas set bail at $ 40,000. Am. Compl. P 11. Plaintiff, who was represented by counsel, Am. Compl. P 9, thereafter submitted a pro se motion for reduction of bail, which Justice Thomas denied. Am. Compl. P 12. In February 1993, Justice Thomas granted plaintiff's motion for a Wade hearing. Am. Compl. P 13. Justice Thomas ultimately denied plaintiff's motion to suppress an "eyewitness identification" of plaintiff, and allegedly made no determination with respect to plaintiff's allegations that the District Attorney defendants had refused to disclose basic Rosario materials. Am. Compl. PP 13-15. Plaintiff also alleges that his attorney's representation was deficient -- for example, his cross-examination of the eyewitness made a "farce and mockery of the defense" -- but that Justice Thomas nonetheless denied his motion for reassignment of counsel made in April 1993. Am. Compl. PP 14, 16.

 Plaintiff claims that on June 10, 1993, he testified at a pretrial hearing that he was suffering from a mental disease or defect caused by cocaine addiction, and that he requested a psychiatric examination; Justice Thomas denied the motion. Am. Compl. P 16. On June 15, he moved "to be allowed to take the affirmative defense of lack of criminal responsibility by reason of mental disease or defect pursuant to C.P.L. 220.15.," which motion ADA Doe opposed; Justice Thomas denied this motion, as well. Am. Compl. P 17. That same day, Justice Thomas conducted a competency hearing, at which he allegedly deliberately "failed to seek a determination of plaintiffs [sic] recollection of crimes so as to be able to assist in his own defense." Am. Compl. P 18.

 Justice Thomas refused to accede to plaintiff's request for a disposition without jail time, and trial commenced shortly thereafter. Am. Compl. P 19. Plaintiff claims that while he was testifying, he experienced a "psychological episode (Amnesia) and he could not remember committing the crimes." Am. Compl. P 21. ADA Doe allegedly "badgered" plaintiff and called him a "fake" in front of the jury, and Justice Thomas did not declare a mistrial. Am. Compl. P 21. Plaintiff also alleges that Justice Thomas denied his motion for a new trial, Am. Compl. P 22; permitted ADA Doe to make prejudicial remarks to the jury in his summation, Am. Compl. P 23; charged the jury in a misleading and prejudicial manner, Am. Compl. P 24; and "summarily dismissed . . . without reading" plaintiff's motion to set aside the verdict and order a new trial. Am. Compl. P 25. Justice Thomas then sentenced plaintiff to two sentences of five and one-half to seventeen years for the first degree robbery counts, and four and one-half to nine years for the second degree robbery counts. Am. Compl. P 25. Plaintiff filed a notice of appeal from his conviction on August 10, 1993. See Municipal Defs.' Mem. of Law in Opp'n to Pl.'s Mot. to Amend the Compl. and in Further Support of Municipal Defs.' Mot. to Dismiss the Compl. at 8 n.2.

 B. The Present Action

 Plaintiff now alleges that the above-described actions by defendants violated his constitutional rights to due process and equal protection of the law. Specifically, for his first cause of action, plaintiff claims that Justice Thomas's denial of his various motions (and presumably the District Attorney defendants' opposition to those motions) was motivated by racial animus, and that Justice Thomas would have granted reasonable bail, granted the motion for reassignment of counsel, granted an alternative to incarceration and imposed a lesser sentence if he were a similarly situated white American. Am. Compl. PP 26-29. Plaintiff further claims that defendants have a history of discriminating against African Americans in this manner, and that this pattern of discrimination has led to a "gross disparity" between the numbers of African Americans and white Americans in pretrial detention and prison. Am. Compl. PP 26-29.

 For his second cause of action, plaintiff claims that by denying his discovery and suppression motions, defendants

 
engaged in a conspirancy [sic] to withhold Rosario materials from the plaintiff for the purpose of impeding, hindering, obstructing, or defeating the due course of justice entitled to the plaintiff because he is black with the intention of denying the plaintiff the equal protection and due process of the law or were aware of such a conspiracy and have the power to prevent the ...

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