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August 12, 2002


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. 12(b)(6).


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 ...

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