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Krug v. McNally

February 7, 2007

ROBERT L. KRUG, PLAINTIFF,
v.
RICHARD MCNALLY, JR.; BARTLE, MCGRANE, DUFFY, & JONES LAW FIRM; PETER B. JONES, DEFENDANTS.



MEMORANDUM-DECISION AND ORDER*fn1

I. Background

Plaintiff Robert L. Krug ("Plaintiff") brings this action claiming violations of 42 U.S.C. § 1983 against Defendants who were Plaintiff's retained counsel in a State criminal matter. See Amended Complaint (Dkt. No. 26). Plaintiff alleges, inter alia, that Defendants deprived Plaintiff of his constitutional rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, by interfering with and depriving Plaintiff of the effective assistance of counsel in connection with criminal charges pending in State court. Id. Plaintiff also alleges legal malpractice and negligence. Id. Plaintiff argues that Defendants are State actors by virtue of their oaths of office as officers of the courts, and because of professional licensing and oversight by the State. Plaintiff also alleges conspiratorial activities on the part of Defendants, in collusion with State prosecutors and the trial judge. See id.; Plntf's Mem. of Law (Dkt. No. 40, Attach. 1).*fn2

For a complete version of the background and facts, reference is made to the Amended Complaint (Dkt. No. 26), and to Plaintiff's Memorandum of Law in Opposition (Dkt. No. 40, Attach. 1) that contains both factual recitations and legal analysis.*fn3

Presently before this Court is Defendants' Motion for summary judgment (Dkt. No. 36). Plaintiff has filed a Response in opposition to Defendants' Motion (Dkt. No. 40). Defendants have filed a Reply to Plaintiff's Response (Dkt. No. 42). For the reasons that follow, Defendants' Motion is granted, and Plaintiff's Amended Complaint is dismissed.

II. Discussion

A. Standard for Claims Pursuant to 42 U.S.C. § 1983

Section 1983 provides, in relevant part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress,...

42 U.S.C. § 1983 (emphasis added).

It is also well settled that in order for a plaintiff to bring a § 1983 claim against a defendant, that defendant must be a State actor, acting under color of State law. See Rodriguez v. Weprin, 116 F.3d 62, 65 (2d Cir. 1997) ("To state a claim under § 1983, a plaintiff must allege (1) the deprivation of a right secured by the Constitution or laws of the United States (2) which has taken place under color of state law.") (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982)). Or, if the defendant is a private actor, then that private actor-defendant must have willingly participated in an activity with the State or participated in an activity where the State encouraged or required the action by the private defendant at the time of the alleged offense.

The involvement of a state official in... a conspiracy plainly provides the state action essential to show a direct violation of petitioner's Fourteenth Amendment equal protection rights, whether or not the actions... were officially authorized, or lawful;... Moreover, a private party involved in such a conspiracy, even though not an official of the State, can be liable under [§] 1983. "Private persons, jointly engaged with state officials in the prohibited action, are acting 'under color' of law for purposes of the statute. To act 'under color' of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents".

Adickes v. S. H. Kress & Co., 398 U.S. 144, 152 (1970). See also Lugar, 457 U.S. at 930-31; Hoai v. Vo, 935 F.2d 308, 313 (D.C. Cir. 1991).

Additionally, defense attorneys - even if court-appointed or public defenders - do not act under color of State law when performing traditional functions of counsel. See Polk County v. Dodson, 454 U.S. 312, 324-25 (1981); Weprin, 116 F.3d at 65-66. See also Lemmons v. Law Firm of Morris & Morris, 39 F.3d 264, 266 (10th Cir. 1994) ("The conduct of retained counsel does not rise to the level of state action within the meaning of § 1983."); Bilal v. Kaplan, 904 F.2d 14, 15 (8th Cir. 1990) (per curiam).

B. Summary Judgment Standard

Federal Rule of Civil Procedure 56 provides that summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In applying this standard, courts must "'resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party ...


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