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Brown v. Cohen

September 3, 2008

THURMAN BROWN, PLAINTIFF,
v.
ROBIN COHEN, ALEXANDER PASHIAN, MARY LOU KEANE, CLAIRE ROMAN, JOAN MCKEOWN, BEHOURS OHEB, PAUL LICATA, WINDSOR CONTRACTING MANUFACTURE, DEFENDANTS.



The opinion of the court was delivered by: Joanna Seybert U.S.D.J.

MEMORANDUM AND ORDER

SEYBERT, District Judge

By Order dated March 7, 2008 ("March 2008 Order"), this Court granted Plaintiff in forma pauperis status, dismissed his Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B), and granted Plaintiff leave to file an Amended Complaint. Pending before the Court is Plaintiff's Amended Complaint.

BACKGROUND

Plaintiff's Amended Complaint, which totals 123 pages with exhibits, contains the same claims against the same Defendants from Plaintiff's original Complaint.*fn1 While difficult to follow, the Amended Complaint appears to allege that a criminal proceeding was terminated in Plaintiff's favor pursuant to CPL 160.50, and that each defendant met privately with "independent court stenographer Margaret O' Shea" who "counterfeited session minutes" which were "included in an illegal session transcript for phantom indictment 96469." Am. Compl. at 3, 7, 9, 11, 13, 15. Plaintiff brings his Amended Complaint pursuant to 42 U.S.C. §§ 1983 and 1985,*fn2 and seeks one million dollars in monetary damages per year "for plaintiff [sic] false imprisonment since October 7, 1996, and still tolling." Am. Compl. at 4. Plaintiff also seeks "N.Y. CPL § 160.60 emancipation and restoration." Id.

DISCUSSION

I. Application Of The Prisoner Litigation Reform Act

As stated in this Court's March 2008 order, Title 28, Section 1915(e)(2)(B) of the United States Code requires a district court to dismiss a case if the court determines that the action: "(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). A pro se plaintiff's submissions are held "'to less stringent standards than formal pleadings drafted by lawyers. . . .'" Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed. 2d 163 (1980) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed. 2d 652 (1972)). Indeed, a court must "read the pleadings of a pro se plaintiff liberally and interpret them 'to raise the strongest arguments that they suggest.'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 878, 790 (2d Cir. 1994)). Nonetheless, a pro se plaintiff is not exempt from compliance with relevant rules of procedural and substantive law. See Traguth v. Zuck, 710 F.2d 90, 92 (2d Cir. 1983).

II. 42 U.S.C. § 1983

The Amended Complaint fails to allege that Plaintiff's injuries were caused by a cognizable constitutional claim pursuant to 42 U.S.C. § 1983. As the Court set forth in its March 2008 Order, to state a claim under Section 1983, "a plaintiff must allege that: (1) the challenged conduct was attributable at least in part to a person who was acting under color of state law and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States." Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999) (citing Dwares v. New York, 985 F.2d 94, 98 (2d Cir. 1993)(overruled on other grounds)).

Plaintiff fails to allege any facts indicating that any of the Defendants are state actors, nor does he allege facts indicating that they deprived him of a constitutional right. The only discernable allegations as to the Defendants in the Amended Complaint are that they each met privately with "independent court stenographer Margaret O' Shea" who "counterfeited session minutes" which were "included in an illegal session transcript for phantom indictment 96469." Am. Compl. at 3, 7, 9, 11, 13, 15. These vague and conclusory claims are not supported by any concrete examples of potential misconduct and, as such, are insufficient to state a claim pursuant to Section 1983. See Ciambriello v. County of Nassau, 292 F.3d 307, 324-325 (2d Cir. 2002).

To the extent that Plaintiff alleges a conspiracy between state actors, i.e., the District Attorney, and private parties, Plaintiff fails to allege facts to support such a claim. "To state a claim against a private entity on a section 1983 conspiracy theory, the complaint must allege facts demonstrating that the private entity acted in concert with the state actor to commit an unconstitutional act." Spear v. Town of W. Hartford, 954 F.2d 63, 68 (2d Cir. 1992). In other words, a private actor acts under color of state law when the private actor "is a willful participant in joint activity with the State or its agents." Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 26 L.Ed. 2d 142 (1970) (quoting United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 16 L.Ed. 2d 267 (1966)). Here Defendants are all complainants or witnesses at Plaintiff's underlying criminal trial, and there are no discernable allegations pertaining to Windsor Contracting Manufacture at all. Merely conclusory allegations that a private entity acted in concert with a state actor does not suffice to state a Section 1983 claim against the private entity. Spear, 954 F.2d at 68. For these reasons, as well as those set forth in this Court's March 2008 opinion, Plaintiff's Section 1983 claim is dismissed in its entirety.

III. Claims Under 42 U.S.C. § 1985

Plaintiff also asserts conspiracy claims under 42 U.S.C. § 1985. "To state a conspiracy claim under 42 U.S.C. § 1985, plaintiff must allege (1) some racial or other class-based discriminatory animus underlying the defendants' actions, and (2) that the conspiracy was aimed at interfering with the plaintiff's protected rights." Porter v. Selsky, 287 F. Supp. 2d 180, 187 (W.D.N.Y. 2003) (citing Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 268 (1993); see ...


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