393 F.Supp. 102 (E.D.La. 1975), Civ. A. 73-2258, State of Louisiana ex rel. Purkey v. Ciolino

Docket NºCiv. A. 73-2258
Citation393 F.Supp. 102
Party NameState of Louisiana ex rel. Purkey v. Ciolino
Case DateApril 17, 1975
CourtUnited States District Courts, 5th Circuit, Eastern District of Louisiana

Page 102

393 F.Supp. 102 (E.D.La. 1975)

STATE OF LOUISIANA ex rel. Larry Joe PURKEY and James Edward Cripps

v.

John C. CIOLINO et al.

Civ. A. No. 73-2258.

United States District Court, E.D. Louisiana.

April 17, 1975

Page 103

[Copyrighted Material Omitted]

Page 104

Larry Joe Purkey, in pro per.

James Edward Cripps, in pro per.

Louis A. Gerdes, Jr., Asst. Atty. Gen., New Orleans, La., for defendants Charles Ward, Matthew S. Braniff, Jerome Winsberg, Thomas M. Brahney, Jr., Rudolph F. Becker, Jr., Oliver P. Schulingkamp, Frank J. Shea, Bernard J. Bagert, Israel M. Augustine, Jr., Alvin V. Oser, Edwin W. Edwards and William J. Guste.

Edward G. Koch, in pro per.

Charles C. Foti, Jr., Asst. City Atty., New Orleans, La., for defendants Joseph R. Bossetta, Andrew C. Bucaro, James E. Glancy, Jr., W. Blair Lancaster, Jr., City of New Orleans.

JACK M. GORDON, District Judge.

The plaintiffs, Larry Joe Purkey and James Edward Cripps, initiated this civil rights action to redress alleged violations of their First, sixth, and Eighth Amendment rights. The vehicles the plaintiffs have chosen for the assertion of these alleged constitutional violations are 42 U.S.C. §§ 1981, 1983, 1985 and 1986. The plaintiffs ground jurisdiction on 28 U.S.C. §§ 1331, 1343(3) and (4), 2201 et seq., 2251, 2254 and 42 U.S.C. § 1988.

The defendants are Edward G. Koch, John C. Ciolino, Jim Garrison, who was the District Attorney of New Orleans, C. Murray Henderson, who is the Warden of the Louisiana State Penitentiary at Angola, Louisiana, Edward W. Edwards, who is the Governor of the State of Louisiana, William J. Guste, who is the Attorney General of the State of Louisiana, Louis Heyd, who was the Criminal Sheriff of Orleans Parish, Charles Ward, Matthew S. Braniff, Jerome Winsberg, Thomas M. Brahney, Jr., Rudolph F. Becker, Jr., Oliver P. Schulingkamp, Frank J. Shea, Bernard J. Bagert, Israel M. Augustine, Jr.,

Page 105

and Alvin v. Oser, who are the Judges of the Criminal District Court of Orleans Parish, Joseph R. Bossetta, Andrew C. Bucaro, James E. Glancy, Jr., W. Blair Lancaster, Jr., who are the Municipal Court Judges of the City of New Orleans, and the City of New Orleans. Though not identified in the caption of the complaint as a defendant, the State of Louisiana is named as a defendant in the body of the complaint.

The suit arises from a state criminal proceeding in which the plaintiffs, Mr. Purkey and Mr. Cripps, were defendants. The plaintiffs were charged with murder in the Criminal District Court of the Parish of Orleans, State of Louisiana. Since the plaintiffs were indigent, the Criminal District Court Judge appointed Mr. Ciolino to represent Mr. Purkey and Mr. Koch to represent Mr. Cripps. The trial resulted in the conviction of Mr. Purkey and Mr. Cripps and they were sentenced to death. Mr. Purkey and Mr. Cripps are incarcerated presently in the Louisiana State Penitentiary at Angola, Louisiana.

The plaintiffs allege that their appointed counsel initiated an appeal with the Louisiana Supreme Court but failed to file briefs or appear for argument. The Louisiana Supreme Court reprimanded Mr. Ciolino and Mr. Koch for that incident. See, State of Louisiana ex rel. Gremillion v. Ciolino, 257 La. 537, 242 So.2d 882 (1970). At the later hearing on their appeals, the plaintiffs, Mr. Purkey and Mr. Cripps, allege that Mr. Koch and Mr. Ciolino merely filed a perfunctory brief with the Louisiana Supreme Court. The Louisiana Supreme Court affirmed their convictions. The plaintiffs aver that Mr. Ciolino and Mr. Koch should have invited the Louisiana Supreme Court's attention to the fact that the United States Supreme Court had under consideration a case in which it was decided ultimately that the death penalty was unconstitutional. The plaintiffs further allege that Mr. Ciolino and Mr. Koch failed to call certain alibi witnesses who would testify in favor of Mr. Purkey and Mr. Cripps.

From these factual allegations, the plaintiffs cite numerous violations of their civil rights. The violations may be summarized as the rendition of ineffective counsel, appointment of Mr. Koch and Mr. Ciolino by judges who knew or should have known of Mr. Koch's and Mr. Ciolino's propensity to render an ineffective counsel, failure to provide funds with which appointed counsel were to be compensated and failure to allow the plaintiffs to seek other appointed counsel. As a state cause of action, the plaintiffs assert a legal malpractice claim against Mr. Koch and Mr. Ciolino. Based on these allegations and civil rights statutes, the plaintiffs seek the following relief:

1. Actual damages in the amount of $1,000,000 and punitive damages in the amount of $500,000 in favor of Mr. Purkey and against the State of Louisiana and Mr. Ciolino;

2. Actual damages in the amount of $1,000,000 and punitive damages in the amount of $500,000 in favor of Mr. Cripps and against the State of Louisiana and Mr. Koch;

3. A declaratory judgment that the system of appointing counsel without compensation in state criminal proceedings is unconstitutional;

4. An injunction prohibiting appointments under such a system;

5. A judgment releasing the plaintiffs from state confinement; and,

6. An injunction prohibiting further prosecution of the plaintiffs.

In connection with the requested declaratory and injunctive relief, the plaintiffs seek to represent the class of indigent, criminal defendants who have had court appointed attorneys.

By order of this Court on August 24, 1973, the plaintiffs were allowed to proceed in forma pauperis. The plaintiffs

Page 106

now request the appointment of counsel to aid their presentation of this case. The statutory authorization for such an appointment of counsel is 28 U.S.C. § 1915(d), which reads:

'The court may request an attorney to represent any such person unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.'

When an individual civil litigant applies for appointment of counsel, the court at that time should determine if the plaintiff's claim is frivolous or malicious. Allison v. Wilson, 277 F.Supp. 271 (N.D.Cal.1967). See, Muhammad v. McGinnis, 362 F.2d 587 (2nd Cir. 1966); Miller v. Pleasure, 296 F.2d 283 (2nd Cir. 1961). The reason for that procedure is to insure that the appointed counsel does not render service, for which there is no compensation, in a case which has no chance of success. Allison v. Wilson, supra.

An action is frivolous within the meaning of 28 U.S.C. § 1915(d) when the plaintiff's realistic chance of ultimate success is slight. Jones v. Bales, 58 F.R.D. 453 (N.D.Ga.1972), aff'd., 480 F.2d 805 (5th Cir. 1973). After studying the plaintiff's complaint, the court concludes that the plaintiffs' claims are frivolous. The plaintiffs have asserted claims based upon 42 U.S.C. §§ 1981, 1983, 1985 and 1986. The Court will discuss every claim asserted by the plaintiffs against the various defendants and will indicate why the plaintiffs' chance of ultimate success on those claims are either very slight or nonexistent.

First, the Court will address the plaintiffs' claims which are based on 42 U.S.C. § 1981. 42 U.S.C. § 1981 reads as follows:

'All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.'

The purpose of the section is to give all citizens equal benefit of all laws which provide for the security and property as enjoyed by white citizens. Gonzales v. Fairfax-Brewster School, Inc., 363 F.Supp. 1200 (E.D.Va.1973). Section 1981 applies only to claims of racial discrimination. Williams v. San Francisco Unified School District, 340 F.Supp. 438 (N.D.Cal. 1972); Schetter v. Heim, 300 F.Supp. 1070 (E.D.Wis.1969). See also, WRMA Broadcasting Co., Inc. v. Hawthorne, 365 F.Supp. 577 (M.D.Ala.1973). 28 U.S.C. § 1981 is not applicable in this case. No allegation of racial discrimination is made in this case. The complaint contains no allegation that Mr. Ciolino, Mr. Koch or any other appointed attorneys render more effective counsel to white indigent defendants than to black indigent defendants. Nor do the plaintiffs aver that the court appointed attorneys of white indigent defendants are compensated while the court appointed attorney of black indigent defendants are not compensated. Since racial discrimination is not present, a 1981 claim for damages or injunctive or declaratory relief has no chance of success against the named defendants.

The plaintiffs seek damages from Mr. Koch, Mr. Ciolino and the State of Louisiana. The plaintiffs base claims for recovery of damages on 42 U.S.C.§ 1983, which reads as follows:

'Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in

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an action at law, suit in equity, or other proper proceeding for redress.'

The plaintiffs each pray for damage recovery against the State of Louisiana in the amount of $1,500,000. Various state officials, the governor, the attorney general, the warden of a state prison, a district attorney, certain criminal district court judges and a criminal sheriff are named as defendants. A state is not a person for 1983 purposes and is not amenable to suit under 1983. United States ex rel. Gittlemacker v....

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15 practice notes
  • 71 F.R.D. 34 (E.D.Pa. 1976), C. A. 74-1313, Presseisen v. Swarthmore College
    • United States
    • Federal Cases United States District Courts 3th Circuit United States District Court (Eastern District of Pennsylvania)
    • 25 Marzo 1976
    ...omitted.) Accord, Blackburn v. Fisk University, 443 F.2d 121, 124 (6th Cir. 1971); State of Louisiana ex rel. Purkey v. Ciolino, 393 F.Supp. 102, 109 (E.D.La.1975); Scott v. University of Delaware, 385 F.Supp. 937, 944 (D.Del.1974). Accordingly, plaintiff's § 1985(3) cause of action will be......
  • 80 F.R.D. 686 (W.D.Mo. 1978), 78 4200 CV C, Green v. Jenkins
    • United States
    • Federal Cases United States District Courts 8th Circuit Western District of Missouri
    • 27 Noviembre 1978
    ...aff'd 516 F.2d 898 (5th Cir. 1975); Boston v. Stanton, 450 F.Supp. 1049 (W.D.Mo.1978); State of Louisiana ex rel. Purkey v. Ciolino, 393 F.Supp. 102 (E.D.La.1975); and Clark v. Zimmerman, 394 F.Supp. 1166 (M.D.Ga.1975). " A determination as to frivolity is a legal determination as to w......
  • 414 F.Supp. 379 (N.D.Tex. 1976), Civ. A. CA 4--75--84, Shore v. Howard
    • United States
    • Federal Cases United States District Courts 5th Circuit United States District Courts. 5th Circuit. Northern District of Texas
    • 20 Mayo 1976
    ...action based on racial discrimination. Jones, 392 U.S. at 415--444, 88 S.Ct. at 2190--2205, 20 L.Ed.2d at 1194--1210; Purkey v. Ciolino, 393 F.Supp. 102, 106 (E.D.La.1975); Cahill v. Cedar County, Iowa,367 F.Supp. 39, 45 (N.D.Iowa 1974), aff'd, 419 U.S. 806, 95 S.Ct. 21, 42 L.Ed.2d 35 (1974......
  • 700 F.2d 37 (2nd Cir. 1983), 85, Anderson v. Coughlin
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (2nd Circuit)
    • 26 Enero 1983
    ...Boston v. Stanton, 450 F.Supp. at 1053; Clark v. Zimmerman, 394 F.Supp. 1166, 1178 (M.D.Pa.1975); Louisiana ex rel. Purkey v. Ciolino, 393 F.Supp. 102, 106 (E.D.La.1975); Jones v. Bales, 58 F.R.D. at 464; see also Urbano v. Sondern, 370 F.2d 13, 14 (2d Cir.1966), cert. denied, 386 U.S. 1034......
  • Request a trial to view additional results
15 cases
  • 71 F.R.D. 34 (E.D.Pa. 1976), C. A. 74-1313, Presseisen v. Swarthmore College
    • United States
    • Federal Cases United States District Courts 3th Circuit United States District Court (Eastern District of Pennsylvania)
    • 25 Marzo 1976
    ...omitted.) Accord, Blackburn v. Fisk University, 443 F.2d 121, 124 (6th Cir. 1971); State of Louisiana ex rel. Purkey v. Ciolino, 393 F.Supp. 102, 109 (E.D.La.1975); Scott v. University of Delaware, 385 F.Supp. 937, 944 (D.Del.1974). Accordingly, plaintiff's § 1985(3) cause of action will be......
  • 80 F.R.D. 686 (W.D.Mo. 1978), 78 4200 CV C, Green v. Jenkins
    • United States
    • Federal Cases United States District Courts 8th Circuit Western District of Missouri
    • 27 Noviembre 1978
    ...aff'd 516 F.2d 898 (5th Cir. 1975); Boston v. Stanton, 450 F.Supp. 1049 (W.D.Mo.1978); State of Louisiana ex rel. Purkey v. Ciolino, 393 F.Supp. 102 (E.D.La.1975); and Clark v. Zimmerman, 394 F.Supp. 1166 (M.D.Ga.1975). " A determination as to frivolity is a legal determination as to w......
  • 414 F.Supp. 379 (N.D.Tex. 1976), Civ. A. CA 4--75--84, Shore v. Howard
    • United States
    • Federal Cases United States District Courts 5th Circuit United States District Courts. 5th Circuit. Northern District of Texas
    • 20 Mayo 1976
    ...action based on racial discrimination. Jones, 392 U.S. at 415--444, 88 S.Ct. at 2190--2205, 20 L.Ed.2d at 1194--1210; Purkey v. Ciolino, 393 F.Supp. 102, 106 (E.D.La.1975); Cahill v. Cedar County, Iowa,367 F.Supp. 39, 45 (N.D.Iowa 1974), aff'd, 419 U.S. 806, 95 S.Ct. 21, 42 L.Ed.2d 35 (1974......
  • 700 F.2d 37 (2nd Cir. 1983), 85, Anderson v. Coughlin
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (2nd Circuit)
    • 26 Enero 1983
    ...Boston v. Stanton, 450 F.Supp. at 1053; Clark v. Zimmerman, 394 F.Supp. 1166, 1178 (M.D.Pa.1975); Louisiana ex rel. Purkey v. Ciolino, 393 F.Supp. 102, 106 (E.D.La.1975); Jones v. Bales, 58 F.R.D. at 464; see also Urbano v. Sondern, 370 F.2d 13, 14 (2d Cir.1966), cert. denied, 386 U.S. 1034......
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