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SMITH v. CITY OF NEW YORK

December 9, 1996

Charles Smith, Plaintiff, against City of New York et alia, Defendants.


The opinion of the court was delivered by: SIFTON

 SIFTON, Chief Judge.

 Plaintiff Charles Smith brings this action pro se pursuant to 42 U.S.C. ยงยง 1983, 1985 and 1986 against defendants the City of New York, the Department of Corrections of the City of New York, the New York City Police Department, the Manhattan County Department of Justice (the "city defendants"), and the Legal Aid Society of New York ("Legal Aid") alleging a series of constitutional violations arising out of his arrest, incarceration, and trial for the murder of his wife. In addition, plaintiff asserts several pendent state claims including battery, false arrest, false imprisonment, violation of the right of privacy, intentional infliction of emotional distress, gross negligence against the city defendants, and legal malpractice against Legal Aid.

 Legal Aid moves to dismiss all claims against it pursuant to Federal Rule of Civil Procedure 12(b) or (c) or, in the alternative, for summary judgment pursuant to Rule 56(b). The city defendants move to consolidate this action with two prior cases pending before Judge Leisure in the United States District Court for the Southern District of New York. For the reasons set forth below, Legal Aid's motion is granted in part and denied in part. The remaining action is transferred to the Southern District for consideration with CV 95-4159 and CV 95-5438.

 BACKGROUND

 The following facts, taken from plaintiff's complaint and answer, are assumed to be true for the purposes of this motion. On January 1, 1995, plaintiff was arrested in Manhattan by New York City police officers as a suspect in his wife's murder. He was held over night in the Washington Heights precinct but does not state where he was subsequently taken. *fn1"

 Plaintiff alleges that the city defendants deprived him of his constitutional rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments. He alleges, among other things, that the arresting officers conspired to alter unspecified legal documents in order to effectuate his imprisonment, that his belongings were unconstitutionally searched, and that he was battered by various police officers and coerced into confessing. He further alleges an ongoing pattern of physical brutality and official coverup.

 During the subsequent prosecution, plaintiff was represented by Messrs. Cook and Bennett of Legal Aid. *fn2" Plaintiff alleges that his Legal Aid attorneys forced him to sign a confession, refused to assert a mistaken identification defense, failed to move for a speedy trial, failed to obtain an investigator, failed to obtain exculpatory evidence from eyewitnesses, and received but failed to file a writ of coram nobis which had been drafted by plaintiff.

 Plaintiff has also alleged that Judge Andrias of the New York State Supreme Court participated in a conspiracy to deprive plaintiff of his civil rights by ordering Cook and Bennett to remain advisors to his defense team after plaintiff requested that they be removed.

 Plaintiff also alleges that the negligent conduct of his Legal Aid attorneys and the state court judges is evidence of their participation in a conspiracy to deprive plaintiff of his constitutional rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments.

 DISCUSSION

 Legal Aid moves to dismiss all federal and state claims against it pursuant to Fed. R. Civ. P. 12(b)(6) and 12(c) or, in the alternative, for summary judgment pursuant to Rule 56(b). The city defendants have moved for transfer or and consolidation of this action with the cases pending in the Southern District of New York.

 Legal Aid's Motion to Dismiss

 The standard applicable to a motion to dismiss for failure to state a claim under Rule 12(b)(6) applies to a motion for judgment on the pleadings under Rule 12(c). Sheppard v. Beerman, 18 F.3d 147 (2d Cir.), cert. denied, 130 L. Ed. 2d 28, 115 S. Ct. 73 (1994). This Court may dismiss this complaint only if it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). Moreover, the court must accept as true all factual allegations presented in the complaint. Bio-Technology Gen. Corp. v. Genentech, Inc., 886 F. Supp. 377, 380 (S.D.N.Y. 1995) ("The court's function on a Rule 12(b)(6) motion is ...


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