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Thomas D. Briel v. Cindy D'amber

August 21, 2012

THOMAS D. BRIEL, PLAINTIFF,
v.
CINDY D'AMBER, ESQ., NASSAU COUNTY, NASSAU COUNTY LEGAL AID SOCIETY, DEFENDANTS.



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

ORDER

By Order dated August 2, 2012, the undersigned granted the in forma pauperis application filed by incarcerated pro se plaintiff Thomas D. Briel ("Plaintiff") but sua sponte dismissed his civil rights Complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B); 1915A(b) because he failed to allege a plausible claim against the Defendants, namely his Legal Aid attorney Cindy D'Amber Esq., who is alleged to have represented him in his underlying criminal case, Nassau County, and the Nassau County Legal Aid Society (collectively "Defendants"). Plaintiff was afforded leave to file an Amended Complaint alleging a plausible claim against any Defendant within thirty (30) days from the date that the August 2, 2012 Order was served upon him. On August 13, 2012, Plaintiff timely filed an Amended Complaint. However, Plaintiff has not cured any of the defects noted in the Court's prior order. Accordingly, the Amended Complaint is now dismissed with prejudice and the Clerk of the Court is directed to close this case.

I. The Amended Complaint

Plaintiff's Amended Complaint is brief. In its entirety,

Plaintiff alleges:

Cindy D'Amber has violated and deprived of the state regulations to represent me as a client which was omitted on the following court dates: April 24th, May 24th, June "not sure"; July 18th but was reassigned in July. This conspiracy between Cindy D'Amner and Nassau County Legal Aid Society and Nassau County deprives one's life to fail by adequate representation to fight for my freedom. They allowed my rights to a speedy trial when I had written the request and waived my rights to a 180.80 right to a felony hearing without knowledge or consent.

Compl. at ¶ IV. As a result, Plaintiff claims to have suffered "Mental Anguish from numerous times of saying we will get you home to your wife who is disabled and my daughter." Plaintiff further claims to have suffered weight loss, stress, and now has difficulty sleeping. Accordingly, he seeks to recover one hundred thousand dollars ($100,000.00). Compl. at ¶¶ IV.A, V.

II. The Court's Screening

The Prison Litigation Reform Act, codified at 28 U.S.C. § 1915, requires a district court to dismiss an in forma pauperis complaint if the action is frivolous or malicious; fails to state a claim on which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(i-iii); 28 U.S.C. § 1915A(a) & (b); Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). The Court is required to dismiss the action as soon as it makes such a determination. 28 U.S.C. § 1915A(a).

It is axiomatic that pro se complaints are held to less stringent standards than pleadings drafted by attorneys and the Court is required to read the Plaintiff's pro se Complaint liberally, Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976)); Chavis v. Chappius, 618 F.3d 162, (2d Cir. 2010), and to construe them "'to raise the strongest arguments'" suggested. Chavis, 618 F.3d at 170 (quoting Harris v. City of New York, 607 F.3d 18, 24 (2d Cir. 2010)). Moreover, at the pleadings stage of the proceeding, the Court must assume the truth of "all well-pleaded, nonconclusory factual allegations" in the complaint. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 124 (2d Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949-50, 173 L. Ed. 2d 868 (2009)); see also Jackson v. Birmingham Board of Education, 544 U.S. 167, 171, 125 S. Ct. 1497, 161 L. Ed. 2d 361 (2005).

A complaint must plead sufficient facts "to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949 (citations omitted). While "detailed factual allegations" are not required, "[a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Id. (quoting Twombly, 550 U.S. at 555).

III. Section 1983

Section 1983 provides that

[e]very 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 . . . to the deprivation of any rights, privileges, or immunities secured by the ...


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