Opinion
00 CV 4164
June 19, 2001
ABDEL ELTAYIB, #13882-050, Lexington, KY, plaintiff Pro Se.
JORGE PENA, #13883-050, FCI Bastrop, Bastrop, TX, plaintiff pro se.
Andrew Bronsnick, NAGEL, RICE, DREIFUSS MAZIE, LLP, Livingston, NJ, for defendant.
MEMORANDUM AND ORDER
Plaintiffs pro se Abdel Eltayib and Jorge Pena brought this action alleging violations under 42 U.S.C. § 1983, 1985, and 1986 by defendant Lawrence Barocas.
Plaintiffs' complaint alleges that Barocas violated their civil rights because he "in a knowing, intelligent, and voluntary manner provided under oath a false testimony against plaintiffs in court" on May 14, 1999. They claim that such testimony was motivated by "the desire to avoid admitting malpractice" and was "inten[ded] to please the government and to aid in the denial of plaintiffs' claims seeking relief from the conviction."
Defendant Barocas moves to dismiss plaintiffs' complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
I
The record shows, in substance, the following. Eltayib and Pena were arrested on July 24, 1991 and charged with intent to distribute cocaine ( 21 U.S.C. § 841(a)(1)), conspiracy to possess cocaine with intent to distribute ( 21 U.S.C. § 846), and conspiracy to import cocaine ( 21 U.S.C. § 952(a), 960(a)(1), 963). Eltayib and Pena went to trial on December 7, 1992. Defendant Lawrence Barocas, a court appointed attorney, represented Pena and Eric Schlosser, Esq. represented Eltayib. On December 23, 1992 a jury found Eltayib and Pena guilty. Several weeks after the trial's conclusion Barocas ceased to represent Pena.
Pena and Eltayib both filed petitions under 28 U.S.C. § 2255 to set aside their convictions on the grounds that they were denied due process and effective assistance of counsel. The court denied the petitioners' due process claims but held a hearing on the issue of ineffective assistance of counsel on May 14, 1999. At the hearing Eltayib and Pena testified that they "always requested from [their] lawyer[s] to arrange for civilian clothes" for them to wear at trial. Pena testified that despite his request he "found himself present at trial in prison clothes." He claimed that he "never had a discussion with his lawyer (Barocas) as to whether it would be a good strategy to wear civilian or prison clothes at the trial."
Barocas testified that there were two "group meetings" with all of the defendants in the case and their attorneys present. At these meetings Barocas claimed the participants discussed what the defendants would wear during the trial. According to Barocas all of the defendants agreed to wear prison clothes to elicit sympathy from the jury.
In a Memorandum and Order dated August 10, 1999 the court denied Eltayib's and Pena's claim for ineffective assistance of counsel.
II
Generally the court must liberally construe the complaint of a plaintiff proceeding pro se. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596 (1972).
Defendant states in his motion to dismiss that plaintiffs' claims must be dismissed because (1) Barocas did not act under color of state law; (2) Barocas did not represent plaintiff Eltayib; and (3) Plaintiffs' claims are barred by the statute of limitations.
As a preliminary matter the court finds that plaintiffs' claims are not barred by the statute of limitations. The applicable limitations period for the relevant statutes is 3 years. Plaintiffs claim that Barocas violated their civil rights by falsely testifying under oath on May 14, 1999. Plaintiffs filed their action on July 18, 2000, just over one year from the date the cause of action accrued. Therefore the action is timely.
III
Tile 42 U.S.C. § 1983 prohibits the deprivation of civil rights by one acting "under color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia."
It is well settled that § 1983 does not authorize a claim against private witnesses. See Briscoe v. LaHue, 460 U.S. 325, 335, 103 S.Ct. 1108, 1115 (1983). Witnesses have absolute immunity from damages liability for their testimony in judicial proceedings. Id. at 334.
Plaintiffs allege that Barocas acted under "color of law" because at the May 14, 1999 hearing he was "the government's witness" and was therefore "a participant with the U.S. government." Plaintiffs cite U.S. v. Price, 383 U.S. 787 (1966), for the proposition that "willful participation by private persons in joint activity with the state or its agents satisfies the `color of law' requirement of 42 U.S.C. § 1983."
Courts have consistently held that witnesses at trial are not acting under color of state law and thus their false testimony does not create a cause of action under § 1983. See Warren v. Applebaum, 526 F. Supp. 586 (E.D.N.Y. 1981). Without state action there can be no violation of § 1983. Accordingly plaintiffs' claims under that statute are dismissed.
Although not addressed by the defendant in his papers, plaintiffs in their amended complaint allege violations of §§ 1985 and 1986.
Section 1985(3) provides in pertinent part:
If two or more persons in any State or Territory conspire . . . for the purpose of depriving either directly or indirectly, any person or class of persons of the equal protection of the laws; . . . if one or more persons . . . do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is . . . deprived of having any right or privilege of a citizen of the United States, the party so injured may have an action for the recovery of damages . . .
To recover under § 1985 plaintiffs must allege (1) an agreement between two or more parties to commit constitutional violations and (2) the conspirators were motivated by racial or similar class-based discriminatory animus. Conclusory statements and vague allegations are insufficient to state a conspiracy claim. See Posr v. Court Officer Shield #207, 180 F.3d 409, 419 (2d Cir. 1999).
Plaintiffs have failed to allege any facts to support their claim that Barocas had any agreement with the government to violate their civil rights. Moreover, plaintiffs have not presented any facts to suggest that Barocas was motivated by discriminatory animus. The mere fact that the plaintiffs are members of minority groups and the defendant is white does not support plaintiffs' allegations of a racially motivated conspiracy. Plaintiffs' claims are insufficient to state a cause of action under § 1985(3) and should be dismissed.
Plaintiffs also allege a claim under 42 U.S.C. § 1986, which provides a cause of action against a person who has knowledge of a conspiracy proscribed by § 1985(3). Thus claims under § 1986 are contingent on a viable conspiracy claim under § 1985(3). Since plaintiffs have failed to state a claim under § 1985(3) they cannot state a claim under § 1986. Plaintiffs' claims under § 1986 are dismissed.
Defendant's motion to dismiss is granted in all respects.
So ordered.