Opinion
01 Civ. 2597 (JSR) (GWG)
December 18, 2001
REPORT AND ROCOMMENDATION To the Honorable Jed S. Rakoff
On March 27, 2001, Patricio Mamot, appearing pro se, filed this action under 42 U.S.C. § 1983 against the New York City Board of Education ("Board of Education"), the Corporation Counsel of New York City ("Corporation Counsel"), and Neal Howard Rosenberg. On May 24, 2001, the Board of Education and the Corporation Counsel (collectively, the "City defendants") moved to dismiss the complaint for failure to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6). On May 29, 2001, Rosenberg also moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6). As of July 19, 2001, no opposition to the motions had been filed and Mamot was therefore ordered to respond to the motions to dismiss by August 9, 2001. On July 26, 2001, Mamot submitted a document entitled "Notice of Motion to Oppose Motion to Dismiss." This document contains allegations duplicative of those in the original complaint. To the extent that there are additional factual allegations, they are considered as supplementing the complaint for purposes of ruling on the defendants' motions.
The plaintiff added the term "et al." following the Board of Education and the Corporation Counsel on the caption of his complaint. He does not specify, however, what additional defendants have been named nor has he effectuated service on any other defendants. See Return of Service, filed April 2, 2001.
THE ALLEGATIONS OF THE COMPLAINT
Plaintiff is a speech therapist/pathologist with professional licenses and a certificate issued by the New York State Education Department. Complaint ¶ 3. The Complaint alleges that in December 1993, Mamot, represented by Rosenberg, filed a complaint against the Board of Education in New York Supreme Court, Kings County (the "1993 Complaint"). See Complaint ¶¶ 6(a), 6(b), 7, 10(b), 10(c), 12-14, 16, 19 (second), 20(a); Annex D (second). The 1993 Complaint alleges various claims against the Board of Education based principally on its alleged improper failure to provide plaintiff with work relating to his business as a speech pathologist. Complaint, Annex D.
Some exhibit letters and paragraph numbers appear twice in the Complaint. In addition, the paragraph numbering is not always sequential. As a result, the Court's identification of exhibit letters and paragraph numbers in some instances reflects additional information to permit the accurate location of the exhibit or paragraph within the Complaint. In addition, Mamot calls some of his exhibits "Annexes" and they are so designated herein.
According to Mamot, the Board of Education's answer to the 1993 Complaint was due in January 1994. Complaint ¶ 20(a). Rosenberg, however, "kept [Mamot] in complete utter darkness in terms of communication between client (plaintiff) and legal counsel (Mr. Rosenberg)." Complaint ¶ 19 (first). Mamot called Rosenberg numerous times, but Rosenberg "refused to talk to" Mamot. Complaint ¶ 8. On July 7, 1997, Mamot went to Rosenberg's office in New York City to deliver copies of correspondence relevant to the 1993 case but was not permitted to see Rosenberg. See Complaint ¶ 10(a). Rosenberg wrote to Mamot on July 16, 1997, stating that he was "following up with the Office of Corporation Counsel to determine their position in defending the Board of Education in your case." See Notice of Motion to Oppose Motion to Dismiss, dated July 26, 2001 ("Mamot Op."), Exhibit J.
On January 18, 1998, Mamot wrote a letter to Mary C. Tucker, Counsel to the President of the Board of Education, and Simon P. Gourdine, Counsel to the Chancellor of the Board of Education, regarding the lawsuit. See Complaint ¶ 6(b). Gourdine responded on February 23, 1998, and Tucker responded on March 19, 1998, both stating that Mamot's lawsuit was still pending "before the State Supreme Court." See Complaint ¶ 6(a), 6(b); Exhibits C, D (first). On July 10, 1998, Mamot wrote a letter to the Records Division of the Supreme Court, Kings County, about the status of his case, and was allegedly told that there was no case pending. See Complaint ¶ 13(a). He submits a docket sheet for the 1993 action, however, indicating only that a summons, complaint and an affidavit of service had been filed. Complaint, Exhibit L. Nonetheless, Mamot alleges that the 1993 case was in fact not pending and thus that the responses by Tucker and Gourdine were "perjurious" and a "lie." Complaint ¶¶ 11-12.
On September 17, 1998, Mamot sought a default judgment against the Board of Education and filed a document entitled Affidavit of Facts upon Application for Default Judgment. See Complaint ¶ 24 at p. 11; Exhibit B. In opposing the motion for a default judgment, an Assistant Corporation Counsel submitted an Affirmation, dated December 7, 1998, in which he alleged that an answer was served on Mr. Rosenberg on June 6, 1994 and that, following service of the answer, the Corporation Counsel "was made aware that plaintiff's counsel had decided not to pursue this action. As a result, this office did not take any further action on this case and did not file the answer with the court." Complaint ¶ 15; Exhibit M.
Plaintiff alleges that he "never authorized Mr. Rosenberg not to pursue or drop the complaint." Complaint ¶ 19 (first) at p. 8. Mamot also notes that Rosenberg once worked at the Board of Education and questions whether he was "still maintaining some relations with his former office" and suggests that this could explain why he "unilaterally . . . dropped plaintiff's case in June 1994." Complaint ¶¶ 16-17.
On January 5, 1999, Mamot appeared before Judge Steinhardt of the New York State Supreme Court, Kings County, in connection with Mamot's motion for a default judgment. Complaint ¶ 4. A "consultant" for the Corporation Counsel was present at this conference. Complaint ¶ 22. The judge ordered the Corporation Counsel to "submit a bill of particular[s]" and then adjourned the conference. See Complaint ¶ 22. No bill of particulars was submitted. Complaint ¶ "2$" [sic] at p. 10. On January 14, 1999, the judge denied the motion for a default judgment on the ground that the defendants had served an answer. See Complaint ¶ "2$" [sic] at p. 10; Exhibit A.
Mamot also alleges that the copy of the answer provided to him as part of the default proceedings was unsigned; that it was dated subsequent to the 30-day period required for an answer; and that it was in fact a "spurious or manufactured 'answer' done hastily to satisfy the demand of the plaintiff for a copy" and was "part of a deliberate attempt to engage in conspiracy to obstruct justice." Complaint ¶ 20(a), ¶ 21, ¶ 25 at p. 9.
On July 31, 1999, Mamot wrote letters to William Thompson of the Board of Education 4 and "Edward Stancyk" [sic], Special Commissioner of Investigation, regarding his 1993 lawsuit but received no response from either individual. See Complaint ¶ 10(b), 10(c); Exhibits H, I. Mamot also wrote a letter on July 31, 1999, to the Appellate Division, First Department, "regarding the professional conduct of Mr. Rosenberg," Complaint, Exhibit J, and, after a second letter, learned that while a review had been conducted of Rosenberg, no action would be taken. Complaint ¶ 10(d); Exhibit K.
Plaintiff asks that the defendants "be declared to have committed perjury and conspired to obstruct justice to the detriment of the plaintiff." Complaint at p. 11. He seeks "actual damages" based on his lack of work, for $500,000. He also seeks damages (including punitive damages) for "intentional infliction of emotional distress" and "malicious prosecution." Id.
DISCUSSION
A. Applicable Legal Principles
"On a motion to dismiss a court must accept all factual allegations as true and draw all inferences in the plaintiff's favor." Levy v. Southbrook Int'l Investments, Ltd., 263 F.3d 10, 14 (2d Cir. 2001) (citing Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.), cert. denied, 513 U.S. 816 (1994)). "[D]ismissal is appropriate if the plaintiff can prove no set of facts that would entitle him to relief." Levy, 263 F.3d at 14 (citing Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998)); Tarshis v. Riese Org., 211 F.3d 30, 35 (2d Cir. 2000). In deciding a Rule 12(b)(6) motion, the court must consider not only the matters contained in the complaint but also the documents attached thereto. See, e.g., Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001); Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991). Moreover, when considering a 5 motion to dismiss the claims of a plaintiff proceeding pro se, the court must construe the pleadings liberally. See, e.g., Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2001). This is especially true when dealing with civil rights complaints such as this one. See id.
Mamot claims violations of his civil rights under 42 U.S.C. § 1983 based on "perjury" by various City officials and his attorney as well as a "conspiracy to obstruct justice." Complaint ¶ 1. To state a claim under 42 U.S.C. § 1983, a plaintiff "must allege (1) that the conduct complained of was committed by a person acting under color of state law, and (2) that such conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States." Dwyer v. Regan, 777 F.2d 825, 828 (2d Cir. 1985); accord Gomez v. Toledo, 446 U.S. 635, 640 (1980); Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999). Each of these elements is analyzed in turn.
B. Color of Law
1. Rosenberg
A private individual may be subject to liability under section 1983 only "if he or she willfully collaborated with an official state actor in the deprivation of [a] federal right." Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993). Even if all of the allegations contained in the complaint are taken as true and all reasonable inferences are drawn in the plaintiff's favor, see Levy, 263 F.3d at 14, Mamot has not made a sufficient showing that his private attorney, Rosenberg, was "acting under color of state law." Dwyer v. Regan, 777 F.2d at 828. While Mamot claims that Rosenberg had previously served as "legal counsel in the New York City Board of Education," Complaint ¶ 16, Mamot does not allege that Rosenberg was employed by that office at the time of the events complained of. To act under color of state law for purposes 6 of section 1983, the defendant must "have exercised power 'possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'" West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)).
In addition, the Complaint does not contain sufficient allegations demonstrating that Rosenberg "wilfully collaborated" with governmental officials. Even under the most liberal reading of his complaint, Mamot merely questions whether Rosenberg was "still maintaining some relations with his former office." Complaint ¶ 16. Speculation about the motives for Rosenberg failing to pursue his suit are simply insufficient to constitute proper allegations that Rosenberg had been acting in concert with the Board of Education to deprive Mamot of his civil rights. See, e.g., Spear v. Town of West Hartford, 954 F.2d 63, 68 (2d Cir.) ("complaint must allege facts demonstrating that the private entity acted in concert with the state actor to commit an unconstitutional act"), cert. denied, 506 U.S. 819 (1992). Thus, the complaint must be dismissed as to Rosenberg for this reason alone.
To the extent that Mamot is claiming legal malpractice by Rosenberg for failing to prosecute the lawsuit against the Board of Education, see Complaint ¶¶ 8, 19 (first), 26(a), his complaint still fails to allege a violation of section 1983. See, e.g., Sommer v. Rankin, 449 F. Supp. 66, 67 (E.D.N.Y. 1978) (legal malpractice claims under section 1983 not cognizable because of a "total absence of state action as required by that section").
2. City Defendants
With respect to the Board of Education and Corporation Counsel, Mamot's complaint also does not meet the "color of law" requirement. To prevail on a section 1983 claim against the City defendants, the plaintiff must show that it was a "policy" or "custom" of the City defendants to cause the deprivation of the civil right at issue. See, e.g., Monnell v. Dep't of Social Servs., 436 U.S. 658, 690-91 (1978); Ricciuti v. New York City Transit Auth., 941 F.2d 119, 122 (2d Cir. 1991). No such claim appears or is even suggested by the allegations of the complaint. For this reason, the complaint must be dismissed as to the City defendants as well.
C. Deprivation of a Constitutional right
Even if Mamot could overcome the absence of allegations showing the defendants acted under "color of law," his complaint would still have be to dismissed because it fails to allege the deprivation of a constitutional or other federally-protected right.
Stripped of its conclusory allegations, the essence of Mamot's complaint is that Rosenberg never pursued the 1993 Complaint and that the City defendants lied both to him and to the State court about the status of the case and the filing of the answer. 42 U.S.C. § 1983, however, requires that the plaintiff specifically allege a violation of the constitution or an Act of Congress because "[s]ection 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993), cert. denied. 512 U.S. 1240 (1994); accord Graham v. Conner, 490 U.S. 386, 393-94 (1989). Furthermore, a section 1983 complaint "must contain specific allegations of fact which indicate a deprivation of constitutional rights; allegations which are nothing more than broad, simple, and conclusory statements are insufficient to state a claim under § 1983." Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987); Rivera v. Goord, 119 F. Supp.2d 327, 335 (S.D.N.Y. 2000) (to survive a motion to dismiss, a plaintiff must make specific allegations of fact indicating a deprivation of his or her constitutional rights). In this case, Mamot has not alleged a violation of a right cognizable under section 1983.
1. Perjury
With respect to the alleged acts of "perjury," the complaint must be dismissed because a section 1983 action generally cannot be brought based upon a witness's alleged perjurious statements to a Court. See, e.g., Briscoe v. LaHue, 460 U.S. 325, 329-30 (1983). To the extent that Mamot complains that the Board of Education officials or his attorney lied in letters they sent to him, this Court is unaware of any independent constitutional right not to be lied to by governmental officials.
In any event, Mamot's complaint itself does not indicate that there was any perjury or lies in this matter. The docket sheet he submits with the Complaint shows that the 1993 case is in fact pending inasmuch as it contains no entries indicating a closure or dismissal of the action. See Complaint, Exhibit L. The fact that the case is pending is also confirmed by Mamot's own allegations that the presiding judge on the case entertained an application for a default judgment in 1999, Complaint, Exhibit A, irrespective of the fact that it was ultimately denied. Id. Thus, the Board of Education could accurately state to Mamot in the 1998 letters that the case was pending.
Mamot also attacks the Corporation Counsel's representation that an answer had been "served" but not filed, leading Mamot to question the authenticity of the answer that he received as part of the default judgment proceedings, Complaint ¶ 20(a). But Mamot's sole ground for this attack is demonstrated in the question he poses: "[i]f [the Assistant Corporation Counsel] did not file the answer with the court, how can there be a service?" Mamot Op. ¶ 13. Mamot thus apparently believes that any court document that has been served must also be filed with the Court. In fact, it is possible to serve a document without filing it.
2. Conspiracy to obstruct justice
Mamot's allegations of "obstruction of justice" apparently rest on his contention that the failure to prosecute his lawsuit resulted from a conspiracy among the City defendants and his attorney. It is unclear, however, what constitutional or other federal right is at issue and Mamot does not specify what right is involved. Construing the complaint broadly, Mamot might be viewed as invoking some right to access to the courts. See, e.g., Monsky v. Monaghan, 127 F.3d 243, 246-47 (2d Cir. 1997), cert. denied, 525 U.S. 823 (1998); Brown v. Grabowski, 922 F.2d 1097, 1111-12 (3d Cir. 1990), cert. denied, 501 U.S. 1218 (1991). Mamot's claim fails, however, for several reasons.
First, Mamot does not allege that he has not had full access to the State court to present whatever claims he may have regarding the prosecution of his complaint and the City defendants' alleged failure to file an answer. Indeed, the complaint itself reflects that Mamot was able to present all these claims to the presiding judge on his case. Complaint ¶ 14, ¶ 26 at pp. 9-10, ¶ 22 at p. 10, ¶ 23, ¶ "2$" [sic] at p. 10. Second, Mamot has not even alleged any wrongdoing by any of the City defendants in this matter. The Complaint shows only that the Board of Education officials relied on the Corporation's Counsel's claim that the lawsuit was still pending, see Complaint, Exhibits C, D. Thus there is no reasonable inference that could be drawn that they were involved with Rosenberg's alleged failure to prosecute the suit. Third, the Corporation Counsel's failure to file an answer did not in and of itself cause defendant any injury. If anything caused injury to the plaintiff, it was his counsel's alleged failure to capitalize on the lack of an answer by seeking a default judgment (assuming he had legal grounds to do so). Suits under section 1983 must allege an actual injury that is "caused by" the party sued, Lewis v. Casey, 518 U.S. 343, 351 (1996), a condition that has not been met here. Fourth, Mamot's non-conclusory allegations show at most that he is dissatisfied with the course of proceedings in State court. It has been held, however, that "mere errors or irregularities [in State court proceedings] . . . are not sufficient to show a purposeful conspiracy to deny . . . due process." Adkins v. Underwood, 520 F.2d 890, 893 (7th Cir.) (quoting Skolnick v. Spolar, 317 F.2d 857, 859 (7th Cir.), cert. denied, 375 U.S. 904 (1963)), cert. denied, 423 U.S. 1017 (1975).
Finally, the allegations in the Complaint of conspiracy are hopelessly vague and conclusory with respect to the defendants' alleged conspiracy to obstruct the state court proceedings, see Complaint ¶¶ 19 (first), 24, 25, even under the most liberal reading of Mamot's complaint. See Weinstein, 261 F.3d at 132; Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995). As the Second Circuit has noted, "complaints containing only 'conclusory,' 'vague,' or 'general allegations' of a conspiracy to deprive a person of constitutional rights will be dismissed. . . . Diffuse and expansive allegations are insufficient, unless amplified by specific instances of misconduct." Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir. 1977) (citations omitted). None of the alleged instances of misconduct can reasonably be deemed to make out an allegation of a conspiracy, let alone a conspiracy to deny a specific constitutional right.
Conclusion
For the foregoing reasons, Mamot's complaint should be dismissed.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report to file any written objections. See also 11 Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Jed S. Rakoff, 500 Pearl Street, New York, New York 10007, and to the chambers of the undersigned at 40 Centre Street, New York, New York 10007. Any requests for an extension of time to file objections must be directed to Judge Rakoff. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140 (1985).