Caldwell v. Barrier

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

BOISEY CALDWELL,

Plaintiff,

v. No. 1:19-CV-01516

(BKS/CFH)

JAMES BARRIER,

Defendant.

CHRISTIAN F. HUMMEL

U.S. MAGISTRATE JUDGE

APPEARANCES:

Boisey Caldwell

25 Elliot Place, Apt. E7

Bronx, New York 10452

Plaintiff pro se

REPORT-RECOMMENDATION AND ORDER

Plaintiff pro se Boisey Caldwell purported to commence this action on February

12, 2020 with the filing of a complaint. Dkt. No. 1 (“Compl.). In lieu of paying this

Court’s full filing fee, plaintiff filed a Motion to Proceed In Forma Pauperis (“IFP”). Dkt.

No. 3.1 After reviewing plaintiff’s IFP application, Dkt. No. 3, undersigned determines

that plaintiff qualifies to proceed IFP for purposes of filing only.

I. Initial Review

1 Plaintiff payed a partial filing fee of $100. On December 20, 2019, the Court issued a text order

directing plaintiff to pay the remainder of the Court’s $400 filing fee, or file an application proceeding in

forma pauperis. Dkt. No. 2. Plaintiff filed the IFP application. Dkt. No. 3.

A. Legal Standards

Section 1915(e) of Title 28 of the United States Code directs that, when a

plaintiff seeks to proceed IFP, “the court shall dismiss the case at any time if the court

determines that ... the action or appeal (i) is frivolous or malicious; (ii) fails to state a

claim on which relief may be granted; or (iii) seeks monetary relief against a defendant

who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). It is a court's responsibility

to determine that a plaintiff may properly maintain his complaint before permitting her to

proceed with her action. Where, as here, a plaintiff proceeds pro se, “the court must

construe his submissions liberally and interpret them to raise the strongest arguments

that they suggest.” Kirkland v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (per

curiam) (internal quotation marks omitted). However, this does not mean the Court is

required to accept unsupported allegations that are devoid of sufficient facts or claims.

Although detailed allegations are not required at the pleading stage, the complaint must

still include enough facts to provide the defendants with notice of the claims against

them and the grounds upon which these claims are based. See, e.g., Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009); Bell Atlantic v. Twombly, 550 U.S. 544, 555-56 (2007).

Ultimately, the plaintiff must plead “enough facts to state a claim to relief that is

plausible on its face.” Twombly, 550 U.S. at 570.

Pleading guidelines are set forth in the Federal Rules of Civil Procedure.

Specifically, Rule 8 provides that a pleading which sets forth a claim for relief shall

contain, inter alia, "a short and plain statement of the claim showing that the pleader is

entitled to relief." See FED. R. Civ. P. 8(a)(2). “The purpose . . . is to give fair notice of

the claim being asserted so as to permit the adverse party the opportunity to file a

responsive answer, prepare an adequate defense and determine whether the doctrine

of res judicata is applicable.” Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y. 1999)

(internal quotation marks and citations omitted). Rule 8 also requires the pleading to

include:

(1) a short and plain statement of the grounds for the court’s

jurisdiction . . .;

(2) a short and plain statement of the claim showing that the

pleader is entitled to relief; and

(3) a demand for the relief sought . . . .

FED. R. CIV. P. 8(a). Although “[n]o technical form is required,” the Federal Rules make

clear that each allegation contained in the pleading “must be simple, concise, and

direct.” Id. at 8(d).

Further, Rule 10 of the Federal Rules provides in pertinent part

that:

[a] party must state its claims or defenses in numbered

paragraphs, each limited as far as practicable to a single set

of circumstances. A later pleading may refer by number to a

paragraph in an earlier pleading. If doing so would promote

clarity, each claim founded on a separate transaction or

occurrence – and each defense other than a denial – must

be stated in a separate count or defense.

FED. R. CIV. P. 10(b). This serves the purpose of "provid[ing] an easy mode of

identification for referring to a particular paragraph in a prior pleading[.]" Flores, 189

F.R.D. at 54 (internal quotation marks and citations omitted). A complaint that fails to

comply with the pleading requirements “presents far too a heavy burden in terms of

defendants' duty to shape a comprehensive defense and provides no meaningful basis

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for the Court to assess the sufficiency of their claims.” Gonzales v. Wing, 167 F.R.D.

352, 355 (N.D.N.Y. 1996). As the Second Circuit has held, “[W]hen a complaint does

not comply with the requirement that it be short and plain, the court has the power, on

its own initiative . . . to dismiss the complaint.” Salahuddin v. Cuomo, 861 F.2d 40, 42

(2d Cir. 1988) (citations omitted). However, “[d]ismissal . . . is usually reserved for

those cases in which the complaint is so confused, ambiguous, vague, or otherwise

unintelligible that its true substance, if any, is well disguised.” Id. (citations omitted). In

such cases of dismissal, particularly when reviewing a pro se complaint, the court

generally affords the plaintiff leave to amend the complaint. Simmons v. Abruzzo, 49

F.3d 83, 86-87 (2d Cir. 1995). A court should not dismiss a complaint if the plaintiff has

stated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (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.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (citation omitted).

B. Plaintiff's Complaint

Plaintiff seeks to bring this action for “Relief from the Misrepresentation of Pro

Bono Attorney James Barrier who knowingly and intentionally misrepresented the

matter 95-CV-1586, Caldwell v. Reynolds.” Compl. at 1. The complaint alleges that

Barrier

did not present my case to the all-white Jury, that instead he

allowed the defendant attorney to question me about

another matter, matter 95-CV-1586 Caldwell v. Reynolds,

where Reynolds died and I did not know that I needed to file

a motion for substitution that is because I am not an attorney

so the matter was dismissed and James Barrier was

informed of this matter (95-CV-1586 Caldwell v Reynolds) by

the opposing attorney and that is why he allowed (rigged

mater [sic] the minutes will prove that to be true) taht the

opposing attorney was allowed to act (with no objections that

is to freely act) in a way to make the jury think that I was not

subjected to the negligence of the defendants in the matters

of Caldwell v. Tschante Nos. 96cv0353, 96-cv-0358,

96cv0359, 96cv0360 and that is the reason why the all-white

jury found them (they are all white) they were therefore fund

[sic] not guilty when the truth is that they are my wrist still

hurts from time to time and James Barrier knows that there

is a Cause for action against him: because he - James

Barrie did not present my case to the all-white Jury, and that

is discrimination and that because he too is white or at least

is considered to be white he used this as the reason why he

misrepresented my case to the jury, because he never di

present the matter to the jury at all that the trial was rigged

see my co-respondence’s [sic] to him.

Compl. at 2.

C. Review

It is not clear from the complaint whether plaintiff is seeking to recover for legal

malpractice from Mr. Barrier’s representation of him in civil case number 95-cv-1586,

Caldwell v. Reynolds or in a different civil matter. Compl. at 2. However, plaintiff’s

claim must fail for several reasons. First, it appears that this Court has already

addressed this matter in a prior action Mr. Caldwell attempted to bring in 2004, Caldwell

v. James J. Barrier, et al., 1:04-CV-0036 (DNH/RFT). In this case, plaintiff alleged that

Barrier was racially biased against plaintiff, did not properly represent plaintiff at trial in

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a prior action, and conspired with state attorneys to deprive him of equal protection.

See Caldwell v. Barrier, et al., 1:04-CV-0036, dkt. no. 3. The Court dismissed plaintiff's

claims against Mr. Barrier. In so doing, the Court noted that Mr. Barrier was not acting

under color of state law and that a claim of legal malpractice is not actionable under 42

U.S.C. § 1983. Id. at 4. The Court further dismissed the apparent claims of conspiracy,

noting that such claims did not suffice to state a claim under §1983. Id. at 4-5.

Here, is not entirely clear whether the underlying trial representation to which

plaintiff refers is the same as that addressed in Caldwell v. James J. Barrier, et al.,

1:04-CV-0036 (DNH/RFT). However, to the extent plaintiff seeks to reallege the same

claim for legal malpractice against Mr. Barrier, that claim is barred, as this Court

dismissed it with prejudice, pursuant to 28 U.S.C. § 1915(e)(2), and his appeal was

dismissed by the Second Circuit Court of Appeals. Dkt. Nos. 3, 4, 8. Thus, plaintiff

may not attempt to bring a new action to raise these claims against the same

defendant.

Second, even if the present complaint may be about Mr. Barrier’s representation

of him in a different case, and, thus, not barred by this Court’s earlier decision, plaintiff

still fails to state a federal cause of action for the same reasons set forth in Caldwell v.

James J. Barrier, et al., 1:04-CV-0036 (DNH/RFT). Private attorneys, whether court

appointed or privately retained, are not liable under 42 U.S.C. § 1983. See Rodriguez

v. Weprin, 116 F.3d 62, 65-66 (2d Cir.1997) (‘“[l]t is well-established that

court-appointed attorneys performing a lawyer's traditional functions as counsel to

defendant do not act ‘under color of state law’ and therefore are not subject to suit

under 42 U.S.C. § 1983.”) (citation omitted), accord Polk Cnty. v. Dodson, 454 U.S.

312, 325 (1981) (holding that a public defender was not acting under color of state law

when performing an attorney's traditional functions as defense counsel).”

Finally, even if this Court were to construe plaintiff's complaint as attempting to

set forth a state law claim and review it under its supplemental jurisdiction — which it

would not do as there is no question of federal law presented, Kolari v. New York-

Presbyterian Hosp., 455 F.3d 118, 120 (2d Cir. 2006) (noting that district court has

discretion to decline to exercise supplemental jurisdiction over state law claims because

all claims over which the federal court has original jurisdiction have been dismissed) —

as it appears the legal representation occurred in or around 1995, “the claim would be

barred by the applicable three year statute of limitations for legal malpractice, which

begins to run on ‘the day an actionable injury occurs,’ regardless of when a plaintiff

discovers the injury.” Kunz v. Brazill, et al., 6:14-CV-1471 (MAD/TWD), 2015 WL

792096, at *6 (N.D.N.Y. Feb. 25, 2015) (citing N.Y. C.P.L.R. § 214; Protostorm, LLC v.

Antonelli, Terry, Stout & Kraus, LLP, 834 F. Supp. 2d 141, 155 (E.D.N.Y. 2011)); see

also Coffin v. Law Offices of Danielle Neroni, 1:19-CV-111 (LEK/CFH), 2019 WL

2359610, at *3 (N.D.N.Y. Apr. 18, 2019) (same).° Thus, insofar as plaintiff attempts to

? To set forth a cause of action under section 1983, a plaintiff must demonstrate that the alleged

onduct was (1) “committed by a person acting under color of state law’; and (2) “deprived [the plaintiff] of

ights, privileges, or immunities secured by the Constitution or laws of the United States.” Cornejo v. Bell,

92 F.3d 121, 127 (2d Cir. 2010) (quoting Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994) (internal

uotation marks omitted)). “The purpose of § 1983 is to deter state actors from using the badge of their

uthority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such

eterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161 (1992).

3 The Court has provided copies of these unpublished cases to plaintiff.

set forth a legal malpractice claim, such claim is also barred by the statute of limitations.

A court ordinarily should not dismiss a complaint filed by a pro se litigant without

granting leave to amend at least once “when a liberal reading of the complaint gives

any indication that a valid claim might be stated,” Branum v. Clark, 927 F.2d 698, 704-

05 (2d Cir. 1991). However, an opportunity to amend is not required where “the

problem with [plaintiff’s] causes of action is substantive” such that “better pleading will

not cure it.” Id. Here, as plaintiff cannot cure the defects in his pleading, dismissal with

prejudice and without opportunity to amend is warranted as it is clear there is no

reworking of the complaint which could entitle plaintiff to relief in this Court.

III. Conclusion

WHEREFORE, for the reasons set forth herein, it is hereby

ORDERED, that plaintiff’s application to proceed in forma pauperis (dkt. no. 3)

be GRANTED for purposes of filing only; and it is

RECOMMENDED, that plaintiff’s complaint (dkt. no. 1) be DISMISSED with

prejudice and without leave to amend; and it is

ORDERED, that the Clerk of the Court serve this Report-Recommendation &

Order on plaintiff in accordance with Local Rules.

IT IS SO ORDERED.

Pursuant to 28 U.S.C. § 636(b)(1), plaintiff has FOURTEEN (14) days within which to

file written objections to the foregoing report. Such objections shall be filed with the

Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN

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(14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85,

89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d

Cir. 1989)); see also 28 U.S.C. § 636(b)(1); FED. R. Civ. P. 72 & 6(a).4

Dated: February 26, 2020

Albany, New York f ft □□

Christian F. Hummel

U.S. Magistrate Judge

4 if you are proceeding pro se and are served with this Order by mail, three additional days will

e added to the fourteen-day period, meaning that you have seventeen days from the date the Order was

ailed to you to serve and file objections. FED. R. Civ. P. 6(d). If the last day of that prescribed period

alls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day

hat is not a Saturday, Sunday, or legal holiday. Id. § 6(a)(1)(C).