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AGRON v. DUNHAM

March 31, 2004.

BATYAH LEVI AGRON, Plaintiff, -against -, DOUGLAS W. DUNHAM, ESQ. & ASSOCIATES, Defendant


The opinion of the court was delivered by: LORETTA PRESKA, District Judge

Memorandum Opinion and Order

This case arises out of Douglas W. Dunham, Esq.'s ("Mr. Dunham" or "Defendant") pro bono representation of Plaintiff Batyah Levi Agron ("Ms. Agron" or "Plaintiff") in her action against the Trustees of Columbia University. Ms. Agron filed her action against Columbia in 1988 pro se in the Southern District of New York (the "Original Action"). She asserted discrimination claims under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § sc § 794, based upon Columbia's rejection of her application for readmission to its School of General Studies. Mr. Dunham became her pro bono attorney in 1992. The Original Action came to trial in August 1999 before the Honorable Thomas P. Griesa, lasting approximately one week. The jury found that Ms. Agron was a handicapped person within the meaning of the Rehabilitation Act, but that she was not "otherwise qualified" for readmission to Columbia. (Declaration Page 2 of Douglas W. Dunham ("Dunham Decl."), sworn to July 3, 2003, Ex. 3 at 1.) Shortly after Judge Griesa, in September 1999, denied the motion for JNOV that Mr. Dunham filed on behalf of Ms. Agron (Dunham Decl. Ex. 3), Mr. Dunham withdrew from his representation of her because he determination that there was no meritorious ground for appeal. Ms. Agron pursued an appeal pro se before the Second Circuit, which denied her motion for appointment of counsel and found that her appeal lacked merit and therefore dismissed it. See Agron v. Trustees of Columbia University, No. 99-9407 (2d Cir. Sept. 1, 2000). Ms. Agron subsequently filed a petition for certiorari to the United States Supreme Court, which was also denied. See Agron v. Trustees of Columbia University, 534 U.S. 932 (2001).

Ms. Agron then brought this suit pro se against Mr. Dunham in August 2002. Her first complaint (which was never served on Mr. Dunham) was dismissed sua sponte by the Honorable Michael Mukasey on the grounds that she had not properly alleged an amount in controversy in excess of $75,000 and that she had not properly pled a claim for legal malpractice. See Agron v. Dunham, No. 02 Civ. 10071, Order at 2-4 (S.D.N.Y. Dec. 19, 2002). Plaintiff has now filed an Amended Complaint against Mr. Dunham, dated February 19, 2003. The Amended Complaint ("Complaint") appears to assert claims for violation of civil rights, legal malpractice and civil conspiracy. Page 3

  By notice of motion dated July 3, 2003, Defendant moved to dismiss the Complaint in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(6).

  Legal Standards

  I. Proceeding Pro Se

  In addressing the Defendant's motion, the Court is mindful that the Plaintiff is proceeding pro se and that her submissions should be judged by a more lenient standard than that accorded to "`formal pleadings drafted by lawyers.'" Hughes v. Rowe, 449 U.S. 5, 9 (1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)); see also Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) ("We read [the pro se party's] supporting papers liberally, and will interpret them to raise the strongest arguments they suggest."); Hanlin v. Mitchelson, 794 F.2d 834, 838-39 (2d Cir. 1986) (citing Haines, 404 U.S. 519, to support the principle that pro se pleadings are given a liberal construction). Nevertheless, proceeding pro se does not altogether relieve Ms. Agron from the usual pleadings requirements. See Kadosh v. TRW, Inc., No. 91 Civ. 5080, 1994 U.S. Dist. LEXIS 17390, at *16 (S.D.N.Y. Dec. 5, 1994) ("The work product of pro se litigants should be generously and liberally construed, but [the pro se's] failure to allege either specific facts or particular laws that have been violated Page 4 renders his attempt to oppose defendants' motion ineffectual.").

  II. Rule 12(b)(6) Standard

  In deciding a motion to dismiss, I must view the Complaint in the light most favorable to the Plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 237 (1974); Yoder v. Orthomolecular Nutrition Inst., Inc., 751 F.2d 555, 562 (2d Cir. 1985). I must accept as true the well-pleaded factual allegations stated in the Complaint, Zinermon v. Burch, 494 U.S. 113, 118 (1990), and draw all reasonable inferences in favor of the Plaintiff. Scheuer, 416 U.S. at 236; Hertz Corp. v. City of New York, 1 F.3d 121, 125 (2d Cir. 1993). Dismissal is proper only when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); accord Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994). In order to avoid dismissal, plaintiff must do more than plead mere "`conclusory allegations or legal conclusions masquerading as factual conclusions.'" Gebhardt v. Allspect, Inc., 96 F. Supp.2d 331, 333 (S.D.N.Y. 2000) (quoting 2 James Wm. Moore, Moore's Federal Practice P12.34[l] [b] (3d ed. 1997)). In construing the Complaint, documents attached to or referenced in the complaint may be considered on a motion to dismiss without converting the motion to dismiss into one for summary judgment. See Taylor v. Vermont Dep't of Educ., 313 F.3d 768, 776 (2d Cir. 2002) (court Page 5 may look to "facts as presented within the four corners of the complaint, to documents attachments to the complaint, or to document incorporated within the complaint by reference"); Hayden v. County of Nassau, 180 F.3d 42, 54 (2d Cir. 1999) (same). Additionally, matters as to which judicial notice may be taken, such as pleadings in other lawsuits and other public records may also be considered on a motion to dismiss. See, e.g., Rothman v. Gregor, 220 F.3d 81, 92 (2d Cir. 2000) (taking judicial notice of pleading in another lawsuit); Clarry v. United States, 891 F. Supp. 105, 109 (E.D.N.Y. 1995) (on motion to dismiss, court "permitted to take judicial notice of matters of public record"), aff'd, 85 F.3d 1041 (2d Cir. 1996).

  III. Discussion

  Although Plaintiff's Complaint is not entirely clear, Plaintiff appears to assert three causes of action — civil rights violations, legal malpractice, and civil conspiracy. Defendant moves to dismiss all three claims for failure to state a legally cognizable claim against him.

  A. Civil Rights

  Plaintiff makes numerous references regarding alleged violations of her civil rights. Plaintiff alleges that Defendant "interfere[d] with her Civil Rights" (Compl. at 2), "den[ied] her equal rights" (Compl. at 3), and violated "her equal protection under the Constitution" (Compl. at 4). Page 6 Plaintiff also purports to involve 42 U.S.C. § 1983 (Compl. at 1).

  The Court of Appeals has held that "[b]ecause the United States Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights [have been violated] must first establish that the challenged conduct constitutes `state action.'" Ciambriello v. County of Nassau, 292 F.3d 307, 323 (2d Cir. 2002) (citations omitted). Similarly, the Court of Appeals has stated that "[a] plaintiff pressing a claim of violation of his constitution rights under § 1983 is . . . required to show ...


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