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TUCKER v. KENNEY

March 4, 1998

DAVID TUCKER, Plaintiff, against PATRICIA KENNEY, LEGAL AID DEPARTMENT, P.O. HAROLD GROSS SHIELD NO. 118, P.O. COLGAN SHIELD NO. 137, P.O. PANNAMAN SHIELD NO. 145, and P.O. KUEBLER, Defendants.


The opinion of the court was delivered by: SPATT

 SPATT, District Judge:

 The pro se plaintiff, David C. Tucker ("Tucker" or the "plaintiff'), initiated these separate actions pursuant to 42 U.S.C. § 1983. The defendants Patricia Kenney and the Legal Aid Society ("Kenney" and "Legal Aid"; collectively, "the Legal Aid defendants") characterize Tucker's complaints as "somewhat incoherent and inartfully drawn. It is difficult to ascertain what the plaintiff is attempting to claim as well as the relief he is seeking." (Affirmation of Leonard Weinstock, at P 3). While the Court agrees that is difficult to discern the grounds for the two lawsuits, which are set forth in nearly verbatim complaints, it appears that Tucker is contending that his constitutional rights were violated because: (1) the defendant Kenney, who served as Tucker's court-appointed attorney in State court criminal proceedings, impermissibly waived Tucker's right, pursuant to New York Criminal Procedure Law § 180.80, to be released on his own recognizance while felony charges were pending against him; and (2) the defendant Police Officers Gross, Colgan, Pannaman and Kuebler made "false statements," arrested him without a warrant, and charged him with more serious crimes than were justified by his conduct. Presently before the Court is the motion of the Legal Aid defendants to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), and, alternatively, for judgment on the pleadings pursuant to Rule 12(c) and for summary judgment pursuant to Rule 56. The Legal Aid defendants also move to dismiss the plaintiff's State law claim for legal malpractice, to the extent that such a claim is interposed, for lack of jurisdiction pursuant to 28 U.S.C. § 1367(c)(3), should the Court dismiss the federal Section 1983 claim.

 I. BACKGROUND

 According to the Police Officer defendants' Statement Pursuant to Rule 3(g) (since renumbered Rule 56.1) of the Local Civil Rules for the Eastern District of New York, a woman named Juanita Santana had a valid order of protection against Tucker issued by an unspecified State court. The 3(g) statement alleges that Santana filed four reports with the police alleging that Tucker had violated the order of protection, and that based on her complaints, the police arrested Tucker on December 25, 1995 on charges of Burglary in the Second Degree (New York Penal Law § 140.25) and Criminal Contempt in the Second Degree (New York Penal Law § 215.50). Tucker does not explain in his papers how the particular police officers named as defendants in this case are connected to his arrest and prosecution, but the Court assumes, for the purpose of this decision, that they took some part in his apprehension.

 The day after his arrest, Tucker was arraigned in Nassau County District Court on a felony complaint charging him with criminal mischief, harassment, two counts of burglary, and fourteen counts of criminal contempt. Evidently, Tucker was incarcerated for an unspecified period of time while the charges were pending against him. It is unclear whether Tucker was indicted on these charges, or was, instead, ultimately charged with misdemeanors.

 According to the Police Officer Defendants' 3(g) Statement, on February 7, 1997, Tucker was convicted, upon his plea of guilty, of two counts of Criminal Contempt in the Second Degree and Criminal Mischief in the Fourth Degree, in full satisfaction of the charges pending against him. It is unclear what sentence was imposed in connection with this conviction.

 A. The First Complaint: Docket Number CV 96-1098 (ADS)

 Tucker initiated his first lawsuit on March 12, 1996, by filing a complaint which was assigned Docker Number CV 96-1098. His complaint raised claims under 42 U.S.C. § 1983 against the defendants Kenney, the Legal Aid Society, and Police Officers Harold Gross, Colgan and Pannaman, alleging that the defendants violated his rights under the First, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth and Tenth Amendments of the Constitution.

 With regard to the facts underlying Tucker's complaint against the Legal Aid defendants, according to Tucker, on December 29, 1995, several days after his arrest, he was interviewed for eligibility for court-appointed counsel. Thereafter, Kenney, a trial attorney with the Legal Aid Society, was assigned to represent him in the state court criminal proceedings. However, Tucker alleges that Kenney was on vacation from December 29, 1995 through January 4, 1996. Tucker's complaint is that under New York Criminal Procedure Law § 180.80, he had a right to be released from incarceration while the criminal charges were pending if there was no Grand Jury action or the occurrence of a preliminary hearing within approximately 144 hours of his arrest. Evidently, Tucker contends that Kenney consented to an extension of time under Section 180.80 to accommodate her vacation. Tucker's theory seems to be that had Kenney not gone on vacation during the days immediately following his arrest and consented to an extension of 180.80 time, he would have been released from incarceration while the charges were pending. Tucker also contends that the Legal Aid Society should not have assigned his case to an attorney who was on vacation during the critical 180.80 period. Finally, Tucker asserts that Kenney's brief absence constituted an erroneous waiver of his statutory and constitutional rights to a speedy trial.

 With respect to the defendant police officers, Tucker complains, without elaboration, that the officers made "false statements," arrested him without a warrant, and charged him with more serious crimes than were justified by his conduct. He neglects to explain what roles, if any, the defendant police officers played in his apprehension.

 In the portion of his complaint entitled "Relief," Tucker states that he wants the Court to "Investigate the defendant[s], file the complaint in the Court, notify the parties of [the] lawsuit filed against them, proceed [with] the court action lawsuit, [and] protect my constitutional rights, which have been violated."

 B. The Second Complaint: Docket Number CV 96-2073 (ADS)

 By a complaint filed on April 26, 1996, Tucker initiated a second lawsuit, which was assigned Docket Number CV 96-2073. The only perceived difference between the first and second complaints is that the latter adds as a defendant Police Officer Kuebler, who, according to Tucker, was the "preparer of [an unspecified] deposition [in the State court criminal] case." In all ...


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