The opinion of the court was delivered by: Koeltl, District Judge.
The plaintiff, Stephen Mitchell, brought this action against
members of the Departmental Screening Committee (the
"Committee") of the Assigned Counsel Plan for the Appellate
Division, First Department, of the New York State Supreme Court
(the "Plan"), including the Committee's former and current
Chairs; the former and current Administrators of the Plan; the
City of New York; a City employee; and "other unknown persons,"
pursuant to 42 U.S.C. § 1981 and 1983, the anti-discrimination
laws of New York City and New York State, and theories of unjust
enrichment and quantum meruit. The plaintiff seeks declaratory
relief, injunctive relief, and money damages, alleging that he
was wrongfully denied re-certification to the panel of attorneys
(the "Panel") available for appointment, in accordance with N.Y.
County Law Art. 18-B, as counsel for indigent defendants in
criminal proceedings in New York County, and that he was not
paid for services performed pursuant to the Plan. See N.Y.
County Law § 722 et seq. The Committee members (Andrea Hirsch,
Gerald Lebovits, Jeffrey O. Pogrow, and Marvin Ray Raskin), the
current and former Chairs of the Committee (Harvey Fishbein and
Norman Reiner), and the current and former Administrators of the
Plan (George Golfinopoulos and Emily Olshansky) (collectively,
the "State Defendants") now move to dismiss the plaintiffs
second amended complaint against them pursuant to Fed.R.Civ.P.
On this motion to dismiss, the allegations in the Second
Amended Complaint are accepted as true. See Grandon v. Merrill
Lynch & Co., 147 F.3d 184, 188 (2d Cir. 1998). In deciding a
motion to dismiss, all reasonable inferences must be drawn in
the plaintiffs favor. See Gant v. Wallingford Bd. of Educ.,
69 F.3d 669, 673 (2d Cir. 1995); Cosmas v. Hassett, 886 F.2d 8,
11 (2d Cir. 1989). The Court's function on a motion to dismiss
is "not to weigh the evidence that might be presented at trial
but merely to determine whether the complaint itself is legally
sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.
1985). Therefore, the present motion should only be granted if
it appears that the plaintiff can prove no set of facts in
support of his claims against the State Defendants that would
entitle him to relief. See Swierkiewicz v. Sorema, N.A.,
534 U.S. 506, 122 S.Ct. 992, 998, 152 L.Ed.2d 1 (2002); Conley v.
Gibson, 355 U.S. 41, 4546, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957);
Grandon, 147 F.3d at 188; Goldman, 754 F.2d at 1065.
In deciding the motion, the Court may consider documents that
are referenced in the Second Amended Complaint, documents that
the plaintiff relied on in bringing suit and that are either in
the plaintiffs possession or the plaintiff knew of when bringing
suit, or matters of which judicial notice may be taken.
Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.
2002); see also Brass v. Am. Film Techs., Inc., 987 F.2d 142,
150 (2d Cir. 1993); Cortec Indus., Inc. v. Sum Holding L.P.,
949 F.2d 42, 47-48 (2d Cir. 1991); I. Meyer Pincus & Assoc.,
P.C. v. Oppenheimer & Co., Inc., 936 F.2d 759, 762 (2d Cir.
1991); Coffey v. Cushman & Wakefield, Inc., No. 01 Civ. 9447,
2002 WL 1610913, at *1 (S.D.N.Y. Jul 22, 2002); Skeete v. IVF
America, Inc., 972 F. Supp. 206, 208 (S.D.N.Y. 1997).
The Second Amended Complaint sets forth the following facts,
which are accepted as true for the purposes of this motion.
The plaintiff is an African-American attorney licensed in the
State of New York. (Second Am. Compl. at 1.) The plaintiff was a
member of the Panel from approximately 1995 to 1998. (Id. ¶
1.) Prior to becoming a member of the Panel, the plaintiff had
served as an Assistant District Attorney in New York County from
1986 to 1989 and had been a member of the 18-B panel in Kings
County between 1991 and 1995. (Id. ¶ 5.) By April, 1998, the
plaintiff had tried more than twenty felony matters to verdict,
including three murder trials; had negotiated dozens of felony
pleas; and had briefed and argued at least two appeals. (Id.
§§ 7, 9, 11.) The plaintiff had not been reprimanded for his
performance as a defense attorney by any judge, the Panel, or
the Kings County panel. (Id. §§ 6, 10.)
The plaintiff submitted applications seeking re-certification
to the Panel in 1996 and either 1997 or 1998. (Id. ¶ 16.) In
the attachments to his re-certification application and in an
interview with a member of the Committee, the plaintiff
complained that: many white members of the Panel were not
zealously representing their African-American and Latino
clients; the Plan deliberately limited the number of
African-American attorneys eligible to try homicide cases; the
Committee deliberately denied the re-certification applications
of African-American attorneys in an effort to reduce the number
of African-American attorneys on the Panel; and the plaintiffs
1995 temporary suspension from the Panel and/or the Kings County
panel was racially motivated. (Id. §§ 18-21.)
Based on these allegations, the plaintiff has sued five
members of the Committee, including its former Chair, in their
personal capacities. (Id. ¶¶ 14, 26, 38, 50, 74.) The plaintiff
has also sued the former Administrator of the Plan in her
personal capacity and has sued the City of New York on the basis
that it is responsible for her misconduct. (Id. ¶¶ 62, 99.) In
addition, the plaintiff has sued the current Chair of the
Committee, Harvey Fishbein, in both his official capacity (for
injunctive relief) and his personal capacity (for money
damages). (Id. ¶ 86.)
The plaintiff further alleges that he is owed between $85,000
and $100,000 in compensation for his previous representation of
indigent defendants pursuant to the Plan. (Id. ¶ 100, 102.)
The plaintiff has sued the City for that compensation on
theories of unjust enrichment and quantum meruit. (Id. ¶ 101.)
The plaintiff has also sued George Golfinopoulous, the current
Administrator of the Plan, and a City employee for withholding
the compensation due to the plaintiff. (Id. ¶ 103.) The
plaintiff alleges that the Administrator and the City employee
are withholding his compensation in retaliation for the
plaintiffs previous complaints about discriminatory practices in
the administration of the Plan and in retaliation for his
bringing this action. (Id. ¶ 104.)
The plaintiff has requested relief consisting of a declaration
that the defendants' conduct was unlawful; compensatory and
punitive damages; the money owed to him for past work, with
interest; "declaratory and injunctive relief so that he can earn
compensation as an indigent defense lawyer and so that he will
not be prejudiced with the stigma of being prohibited from
membership [in] an association of attorneys"; an order directing
the defendants to provide the plaintiff with copies of any and
all files kept by them that ...