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Whitelaw v. Kennedy

April 28, 2010


The opinion of the court was delivered by: Charles J. Siragusa United States District Judge



This is an action pursuant to 42 U.S.C. § 1983, in which Robbin Whitelaw ("Plaintiff") alleges that Defendant violated her constitutional rights by failing to provide her with an assigned defense attorney in a timely manner, as discussed more fully below. Now before the Court is a Report and Recommendation ("R&R") (Docket No. [#33]), recommending that Plaintiff's motion [#29] to amend her complaint be granted in part and denied in part, and Plaintiff's Objections [#36] to the R&R. For the reasons that follow, the R&R is modified, the motion to amend is denied, and this action is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).


Unless otherwise noted, the following factual allegations are taken from Plaintiff's proposed amended complaint [#29]. On or about October 9, 2001, Plaintiff was arrested in connection with a felony complaint charging her with one count of Scheme to Defraud, in violation of New York Penal Law ("PL") § 190.65(1) and two counts of Grand Larceny in the Fourth Degree in violation of PL § 155.30. In that regard, Plaintiff was charged with stealing a woman's purse, containing over one thousand dollars in cash, from a nail salon in a shopping mall.*fn1 A witness saw Plaintiff steal the purse, and the victim's cell phone was found in Plaintiff's apartment.*fn2 Plaintiff admitted that she had been in the nail salon at the time of the theft, but denied stealing the purse, and suggested that the victim's cell phone had fallen into Plaintiff's purse.*fn3 Subsequently, a Grand Jury in Ontario County, New York, indicted Plaintiff on three counts of Grand Larceny in the Fourth Degree and one count of Petit Larceny. After a jury trial, Plaintiff was convicted of all charges, and sentenced to six months in jail, five years of probation, and restitution.*fn4 After exhausting her state-court appeals, Plaintiff commenced a habeas corpus action in this Court, pursuant to 28 U.S.C. § 2254. As part of that action, Plaintiff claimed that her conviction should be overturned, because she was "incarcerated for 16 days without representation or assigned counsel," and deprived of preliminary hearing. (See, Egan v. Spitzer, 04-CV-6544 MAT, Docket No. [#1], Habeas Petition at 6c). Plaintiff further alleged that she was forced to participate in Ontario County's "Pre-Trial Release Program." (Id. at 6c-6d). On July 17, 2009, the Honorable Michael Telesca, Senior United States District Judge, dismissed the habeas petition on the merits. (04-CV-6544 MAT, [#16]).

In this action, Plaintiff again asserts claims arising from some of the same incidents described in her habeas petition. In that regard, on October 9, 2001, Plaintiff was arraigned on the felony complaint in Victor Town Court, and "committed to the Ontario County Jail in lie of bail. (Amended Complaint at ¶ 21). Plaintiff remained in jail until October 25, 2001, when she was released through the "Ontario County Pretrial Release Program." (Id. at ¶ ¶ 22-26). During that period, Plaintiff "repeatedly requested the assignment of counsel to represent her." (Id. at 23).*fn5 Specifically, Plaintiff "placed numerous [collect]*fn6 telephone calls to Ontario County Assigned Counsel Administrator John Kennedy [("Kennedy")] to request counsel appointment, but each such [collect] call was rejected by him or his representative." (Id. at ¶ 25). There is no indication that Plaintiff actually spoke with Kennedy or with anyone at his office during this period. Subsequently, Plaintiff made requests "orally to jail personnel and in writing in accordance with jail policy."

With respect to this, Plaintiff alleges that, pursuant to a policy of "the Assigned Counsel Administrator and/or the Ontario County Jail," jail staff would ask inmates if they wanted assigned counsel, and if so, jail staff took the detainee's name and transmitted it to the Assigned Counsel Administrator. Pursuant to that same policy, Plaintiff contends, the Assigned Counsel Administrator would "travel to the Ontario County Jail to personally interview" each inmate requesting assigned counsel. (Amended Complaint ¶ ¶ 43-44). Plaintiff states that she directed such requests to jail personnel only after*fn7 her attempts to contact the Assigned Counsel Administrator by phone failed, but she does not indicate the date that she first made such request to jail staff. She states, however, that on October 14, 2001, unidentified jail staff told her that her request had been transmitted to the Assigned Counsel Administrator. (Third Amended Complaint [#7] ¶ 63). On October 25, 2001, Plaintiff was released from jail through the Pre-trial Release Program.

Plaintiff maintains that Ontario County is at fault for failing to provide her with an assigned attorney during the period October 9, 2001 - October 25, 2001, and that such failure violated her federal constitutional rights. Additionally, Plaintiff contends that such failure resulted in additional constitutional violations. Most notably, Plaintiff indicates that pursuant to New York Criminal Procedure Law ("CPL") § 180.80, she should have been released from jail on her own recognizance 120 hours after arraignment on the felony complaint. (Amended Complaint at p. 8) ("Defendant . . . caused or allowed Plaintiff to be deprived of her Sixth Amendment right to the appointment of counsel for 17 days, thereby resulting in denial of her statutory right to a timely preliminary hearing pursuant to [CPL] § 180.80."). On this point, she maintains that she was prevented from making an application under CPL § 180.80, because she did not have an assigned attorney. (Amended Complaint ¶ 51) ("Plaintiff could not, however, force her statutorily-mandated release on her own recognizance by reason of her not having been appointed counsel to represent her."). Plaintiff further contends that because of her inability to make an application under CPL § 180.80, her rights were further violated, because she was compelled to provide personal information to the Ontario County Pretrial Release Program, in order to be released from jail, and to abide by conditions of release. (Amended Complaint at ¶ 26-27).

On December 23, 2004, Plaintiff commenced this action and applied for permission to proceed in forma pauperis ("IFP"). On January 7, 2005, Plaintiff filed an Amended Complaint. On March 8, 2005, the Court granted IFP, and dismissed several of Plaintiff's claims pursuant to 28 U.S.C. § 1915(e)(2)(B). (Docket No. [#4]). The Court further indicated that the remainder of Plaintiff's claims were subject to dismissal, but it granted her an opportunity to file a second amended complaint. (Id.). On March 24, 2005, Plaintiff filed a Second Amended Complaint [#5]). On April 11, 2005, Plaintiff filed a Third Amended Complaint [#7]. The amended complaints purported to state various claims under 42 U.S.C. § 1983, including claims against the prosecutors, investigating police officers, assigned counsel administrator, and the County of Ontario. On November 21, 2005, the Court issued a Decision and Order [#8], dismissing all of the proposed claims, except for the "Fourteenth Amendment claims," consisting of "allegations that she was unlawfully detained following her arrest and or otherwise had her pre-trial liberty restrained without the requisite procedural protections." (Decision and Order [#8] at 5). The Court dismissed Plaintiff's "privacy" claim, including her claim that she was forced to provide personal information to the pre-trial release program. (Id. at 7). As for the "Fourteenth Amendment claim" that was allowed to go forward, the Court construed the claim as having two parts: 1) claim that she was unlawfully detained; and 2) a claim that Ontario County has a policy of "denying indigent criminal defendants access to counsel in order [to] deprive them of the opportunity to assert their entitlement to release." (Id. at 8). The so-called Fourteenth Amendment claims were permitted to proceed against Ontario County and John Kennedy, the Administrator of the Assigned Counsel Program. (Id. at 9).

Ontario County and Kennedy subsequently filed a motion [#15] to dismiss the complaint, alleging that. it was time-barred by Section 1983's three-year statute of limitations. Defendants did not allege that the complaint failed to state a claim. The Court dismissed the claim against Kennedy as being time-barred, but indicated that there could be an issue of fact as to whether Plaintiff's claim against Ontario County was timely: "[I]t is not clear that the claim is time-barred, since the Complaint does not indicate when Plaintiff became aware, or should have become aware, of the alleged county policy to deny representation to indigent defendants." (Decision and Order [#23] at 6). Consequently, the only claim remaining was Plaintiff's claim that Ontario County violated her constitutional rights by denying her timely representation, pursuant to a policy to deny indigent defendants the services of assigned counsel.

The parties subsequently had the opportunity to conduct discovery. On December 18, 2008, Plaintiff moved [#29] to file a Fourth Amended Complaint. Such motion was untimely, since it was filed three days beyond the court-imposed deadline for such motions. (See, Scheduling Order [#27]). Nevertheless, according to Plaintiff, the proposed amended complaint would "streamline the issues and make less confusing the nature of the causes of action permitted to go forward." (Motion to Amend [#29], Plaintiff's Affirmation, ¶ 10). The proposed fourth amended complaint purports to allege violations of Plaintiff's rights under the "First, Fourth, Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the U.S. Constitution," against Ontario County. The proposed fourth amended complaint contains essentially the same factual allegations as before, and alleges that Defendant violated Plaintiff's Sixth Amendment right to counsel by failing to provide her with an attorney during the seventeen days that she spent in jail, and that such denial prevented Plaintiff from requesting a hearing pursuant to CPL § 180.80. The proposed fourth amended complaint further contends that the County caused Plaintiff to be "subjected to unlawful conditions of her eventual release [through] the Ontario County Pretrial Release Program," in violation of her rights under the "First, Fourth, Fifth, Eighth, Ninth, and Fourteenth Amendments to the U.S. Constitution." (Id. at p. 11). On this point, Plaintiff maintains that she was entitled to be released from jail on her own recognizance pursuant to CPL § 180.80, that such conditions restricted her freedom, and that "her pretrial release should not have been made contingent on her agreeing to such conditions." (Id. at ¶ ¶ 57-58). Plaintiff further alleges that questions posed to her by the Pretrial Release Program violated her rights to privacy. (Id. at ¶ ¶ 59-60). Additionally, in her proposed fourth amended complaint, Plaintiff alleges that a conspiracy and policy existed between the Ontario County District Attorney, the Ontario County Probation Department, and the Ontario County Courts, to violate criminal defendants' rights by "compiling a 'Pre-Plea investigation Report.'" (Id. at p. 13). Alternatively, Plaintiff alleges that Ontario County has "knowingly acquiesced to such a policy" between the District Attorney and the Probation Department. (Id.). According to Plaintiff, such reports contain "forced inculpatory statements," which prosecutors use against her at her trial. (Id. at ¶ ¶ 79-80). The proposed fourth amended complaint demands, inter alia, one million dollars in damages.

On September 4, 2009, the Honorable Jonathan W. Feldman, United States Magistrate Judge, issued the subject R&R [#33], recommending that the Court grant Plaintiff's motion to amend in part, and deny it in part. The Report and Recommendation found that the second and third causes of action in the proposed fourth amended complaint were merely re-statements of claims that the Court had already dismissed, and that amendment should therefore be denied as to those causes of action. However, the Report and Recommendation indicated that amendment should be allowed as to the first claim, since it merely asserted new legal theories, involving the Sixth and Fourteenth Amendments, based on the same factual allegations as the prior complaint, and since Defendant would not be prejudiced by the amendment.

On November 17, 2009, Plaintiff filed objections to that portion of the R&R which recommended that ...

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