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Nelson v. Brown

United States District Court, E.D. New York

September 10, 2014

DERIC NELSON, Plaintiff,
DAMIEN BROWN, Defendant.


KIYO A. MATSUMOTO, District Judge.

On June 18th, 2013, pro se plaintiff Deric Nelson ("plaintiff") filed this action pursuant to 42 U.S.C. § 1981 and the Trust Indenture Act of 1939, codified at 15 U.S.C. §§ 77aaa through 77bbbb, alleging that defendant Damien Brown ("defendant") violated his constitutional and statutory rights during the course of Defendant's legal representation of Plaintiff. ( See generally ECF No. 1, Complaint filed 6/18/13 ("Compl.").) Plaintiff also asserts tort claims under state law. ( See id. ¶¶ 110-121). Plaintiff seeks compensatory and punitive damages. ( Id. ¶ 1). For the reasons set forth below, the court dismisses plaintiff's complaint in its entirety.


The following facts, taken from the complaint, are assumed to be true unless otherwise indicated.

On December 28, 2009, plaintiff was arrested and charged with Attempted Grand Larceny in the first degree, offering to file a false instrument in the first degree, and falsifying business records in the first degree in the state of New York, County of Kings.[1] See attorney, Case Number XXXXX-XXXX (last visited 9/8/14); (ECF No. 9, Motion to Dismiss filed 9/12/13 ("Def. Mot.") at 4). During the course of his prosecution, plaintiff, proceeding pro se, submitted a "writ of defense" alleging that false allegations and false county documents had been "levied against him." (Compl. ¶ 48.) Defendant was appointed to represent plaintiff in his state court criminal proceedings. ( Id. at ¶ 50.)

Plaintiff instructed defendant that he "was looking to have pre-trial hearings in order to prove beyond a reason of a doubt his civil rights had been violated by various officers in the City of New York and the County of Kings during his arrest in connection with the charges against him." ( Id. ¶ 53.) Specifically, plaintiff gave defendant a document, entitled "Constructive Notice to Attorney, Instructions for Representation for Deric Nelson, " which consists of instructions to defendant regarding how to pursue plaintiff's criminal defense, and excerpts from the Model Code of Professional Responsibility.[2] ( Id. ¶ 54; Compl., Ex. C, "Constructive Notice to Attorney" dated 4/18/13.) Plaintiff also "demanded" that defendant seek Mapp/Dunaway, Huntley, and Sandoval hearings, as well as a hearing to determine whether the New York state speedy trial statute had been violated. (Compl. ¶¶ 54-55.)

Defendant did not make any pre-trial motions and instead notified the state court that plaintiff was prepared to proceed with the criminal trial.[3] ( Id. ¶ 56.) After defendant did not file any pre-trial motions, plaintiff served defendant with a "Notice of Dishonor and Default" because defendant's "representation [was] being used to assist [plaintiff's] accusers." ( Id. ¶ 65; Compl., Ex. D, "Notice of Dishonor and Default" dated 4/13/13 and filed 5/13/13.) According to the plaintiff, "numerous attempts" were made to "sit down" with defendant "to discuss strategies in having his rights honored, " but these attempts were unsuccessful as defendant was in "a conspiracy to conceal securities fraud and not be liable to the plaintiff's accusers as a [sic] attorney licensed in the State of New York." (Compl. ¶ 73.)

Although hardly a model of clarity, plaintiff's complaint appears to allege that defendant, by failing to honor plaintiff's "Constructive Notice to Attorney" instructions, violated plaintiff's civil and constitutional rights under the Fourth Amendment, Eighth Amendment, Fourteenth Amendment, and 42 U.S.C. §§ 1981 and 1983; and conspired to violate plaintiff's constitutional rights under the Trust Indenture Act ("TIA"), codified at 15 U.S.C. §§ 77aaa through 77bbb. (Compl. at 9-13.) Plaintiff also raises various state law claims, including claims of unreasonable seizure, negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress. (Compl. at 13-14.)

Defendant now moves to dismiss the complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)"). ( See ECF No. 9, Motion to Dismiss filed 9/12/13 ("Def. Mot."); ECF No. 15, Plaintiff's Omnibus Motion filed 9/26/13 ("Pl. Opp."); ECF No. 16, Plaintiff's Affidavit in Response to Motion to Dismiss filed 9/26/13 ("Pl. Br.")[4].)


I. Standard of Review

In reviewing plaintiff's complaint, the court is mindful that the submissions of a pro se litigant must be construed liberally and interpreted "to raise the strongest arguments that they suggest." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006). Nonetheless, a court "should not hesitate to dismiss a pro se complaint if it fails altogether to satisfy the pleading standard." Henry v. Davis, No. 10 Civ. 7575, 2011 WL 3295986, at *2 n.5 (S.D.N.Y. Aug. 1, 2011). Under Federal Rule of Civil Procedure 12(b)(6), to survive a motion to dismiss, a complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations omitted); Fed.R.Civ.P. 12(b)(6). 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, 556 U.S. at 678. Under this standard, "a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007) (internal quotations omitted).

II. First and Second Causes of Action: Violations of Civil Rights Under § 1981

Plaintiff first alleges that as a "direct and proximate result" of defendant's actions, he was "deprived of rights, privileges, and immunities secured to him under the Constitution and the laws of the state of New York and the United States" including the "Fourth, Eighth, and Fourteenth Amendments of the United States Constitution and 42 U.S.C. Section 1981 in regards to contracts." (Compl. ¶ 82) The Fourth Amendment protects "the right of people to be secure in their persons" and protects against "unreasonable searches and seizures." U.S. CONST. amend. IV. Plaintiffs wishing to seek civil damages for a Fourth Amendment violation bring may bring claims, pursuant to 42 U.S.C. § 1983, against the state actors acting under color of state law who are allegedly directly responsible for the constitutional violation. See ...

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