Bliven v. Hunt, 05-CV-4852 (SJF)(LB).

• Citation: 478 F.Supp.2d 332
• Decision Date: 09 February 2007
• Docket Number: No. 05-CV-4852 (SJF)(LB).,05-CV-4852 (SJF)(LB).
• Parties: David BLIVEN, Plaintiff, v. Hon. John HUNT, both in his individual and official capacity; Hon. Barbara Salinitro, both in her individual and official capacity; Hon. Guy Dephillips, both in his individual and official, capacity; Douglas Foreman, both in his individual and official capacity; Julie Stanton, both in her individual and official capacity; Cheryl Joseph-Cherry, both in her individual and official capacity; Hon. Joseph Lauria, both in his individual and official capacity; City of New York; and "John Does," 1-10, both in their individual and official capacities, the identity and number of whom is presently unknown to the plaintiff, Defendants.
• Court: United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)

478 F.Supp.2d 332

David BLIVEN, Plaintiff, v. Hon. John HUNT, both in his individual and official capacity; Hon. Barbara Salinitro, both in her individual and official capacity; Hon. Guy Dephillips, both in his individual and official, capacity; Douglas Foreman, both in his individual and official capacity; Julie Stanton, both in her individual and official capacity; Cheryl Joseph-Cherry, both in her individual and official capacity; Hon. Joseph Lauria, both in his individual and official capacity; City of New York; and "John Does," 1-10, both in their individual and official capacities, the identity and number of whom is presently unknown to the plaintiff, Defendants.

No. 05-CV-4852 (SJF)(LB).

United States District Court, E.D. New York.

February 9, 2007.

COPYRIGHT MATERIAL OMITTED

David Bliven, Jamaica, NY, pro se.

Monica Anne Connell, Office of the New York State Attorney General, Duncan Archie Peterson, New York City Law Department, Office of the Corporation Counsel, Martha Anne Calhoun, New York City Department of Law, New York, NY, for Defendants.

OPINION AND ORDER

FEUERSTEIN, District Judge.

I. Introduction

On October 17, 2005, pro se plaintiff David Bliven ("Plaintiff' or "Bliven"), an attorney admitted to practice in the State of New York, commenced this action pursuant to, inter alia, 42 U.S.C. §§ 1983 and 1985. Defendant City of New York ("Defendant" or "the City") now moves for dismissal pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons set forth below, Defendant's motion to dismiss is granted.

II. Plaintiff's Pleadings

Although Plaintiff proceeds pro se he is an experienced attorney and accordingly his pleading is not entitled to the degree of liberality given to non-attorney pro se plaintiffs. Chira v. Columbia University in New York City, 289 F.Supp.2d 477, 482 (S.D.N.Y.2003) (citing Goel v. United States DOJ, No. 03 Civ. 0579, 2003 WL 22047877, at *1 (S.D.N.Y. Aug. 27, 2003)); Smith v. Plati, 258 F.3d 1167, 1174 (10th Cir.2001) ("While we are generally obliged to construe pro se pleadings liberally, we decline to do so here because Smith is a licensed attorney.") (citations omitted). See also Goktepe v. Lawrence, No. 03 Civ. 89, 2005 WL 293491, at * 1 (D.Conn. Jan. 26, 2005) (holding that pleadings of licensed attorney proceeding pro se are not construed using liberal standard typically afforded pro se litigants).

III. Background

A. Facts

Bliven was appointed to the New York City Public Defender Panel in 2000. Complaint at ¶ 13. He has worked primarily as a public defender in Queens County Family Court. Id.

According to Bliven, at the termination of a case in Queens Family Court, the public defender submits a voucher issued by either the Assigned Counsel Panel or the Law Guardian Program, Appellate Division, Second Department to the judge who presided over the case, itemizing the number of hours he or she has invested on the case. Id. at ¶ 16. The vouchers are reviewed by the judge's court attorney, signed by the judge, and then returned to the public defender. Id. at ¶¶ 17-18. The public defender then submits the signed form to the City of New York and/or the State of New York for payment. Id. Within four (4) to five (5) weeks of submission, the public defender receives payment. Id.

Prior to January 2004, public defenders were compensated at a rate of twenty-five dollars ($25.00) per hour for out-of-court work and forty dollars ($40.00) per hour for in court appearances. Id. at ¶ 19. Effective January 1, 2004, all public defender work is compensated at a rate of seventy-five dollars ($75.00) per hour. Id.

Family Court judges have discretion to determine whether a public defender is entitled to the compensation sought and authority to provide excess compensation in "extraordinary circumstances." Administrative Judge Joseph Lauria reviews vouchers in instances where a public defender alleges that a Family Court judge abused his or her discretion in reducing the amount of compensation that a public defender seeks. Id. at ¶ 21.

Bliven alleges that in 2001 he filed motions to compel disclosure of the case records from the Administration for Children Services ("ACS") in fifteen (15) cases. According to Bliven, while the motions were neither "frivolous [n]or inappropriate," they were "out of the norm" because public defenders usually accept "whatever portions of the case record" are provided by ACS. Id. at ¶¶ 22-23. Bliven claims that the ACS staff attorneys complained to their supervising attorneys, "who in turn complained to the Office of the Commissioner of ACS." Id. at ¶ 24. According to Bliven, following the ACS complaints, Judges John Hunt and Barbara Salinitro began reducing his compensation without explanation. Id. Bliven contends that the reduction in compensation was based on his filing of the motions on behalf of his clients.

Bliven alleges that although his practice of filing motions was raised during his review for recertification on the public defender panel, id. at ¶¶ 24-26, he was recertified as a public defender. Id. at ¶ 26.

Bliven's vouchers continued to be reduced by Judges Hunt and Salinitro between March 2002 and July 2004. Id. at ¶ 27, 30, 32, 34. He alleges that Judge Lauria conspired with Judges Hunt and Salinitro to reduce his compensation. Id. at ¶¶ 33, 35. Bliven also alleges that a voucher submitted to the supervising Judge of the Queen's Family Court, Judge Guy DePhillips, was reduced in March 2005. Id. at ¶¶ 36-37.

Bliven claims that on three (3) public defender cases which ended between 2004 and 2005, his vouchers were reduced to the rates in effect prior to January 1, 2004. Id. at ¶ 38.

B. Procedural History

On December 2, 2005, I dismissed sua sponte the claims asserted against the individual defendants (including John Does 1-10) on the ground that, as judges and related staff, they possessed absolute immunity from all of Plaintiff's claims. See Bliven v. Hunt, 418 F.Supp.2d 135 (E.D.N.Y.2005). Plaintiff moved for leave to amend his complaint on January 10, 2006. On June 7, 2006, Magistrate Judge Lois Bloom issued a Report and Recommendation that recommended that Plaintiff s motion for leave to amend be denied on the ground that amendment would be futile. Magistrate Judge Bloom also stated that "[a]s plaintiff's federal claims should all be dismissed, I further recommend that the Court should decline to extend supplemental jurisdiction over plaintiffs breach of contract claim against the municipal defendant." Report at 18. On June 30, 2006, I adopted the portion of Magistrate Judge Bloom's Report recommending denial of Plaintiff's motion for leave to amend but declined to adopt the portion of the Report recommending dismissal of Plaintiff's federal claim against Defendant because Defendant failed to move for dismissal of that claim.¹ I also declined to adopt the portion of the Report recommending against exercising supplemental jurisdiction over Plaintiff's state law claim against Defendant.

IV. Standard of Review

A motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6) should be granted where "it appears beyond a doubt that plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir.1998). The Court must liberally construe the claims, accept all factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. See Koppel v. 4987 Corp., 167 F.3d 125, 128 (2d Cir.1999). The Court's task "is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Levitt v. Bear Stearns & Co., 340 F.3d 94, 101 (2d Cir.2003) (internal citation omitted). The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. See Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995).

V. Analysis

A municipality or municipal entity cannot be held liable under Section 1983 on a respondeat superior theory. See Monell v. Department of Soc. Servs. of City of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Linder v. City of New York, 263 F.Supp.2d 585, 591 (E.D.N.Y.2003). However, a municipal entity may be liable if the alleged offending conduct was undertaken pursuant to "a policy statement, ordinance, regulation, or decision officially adopted and promulgated by [the municipal] officers[,] ... [or] governmental `custom' even though such a custom has not received formal approval through the [municipality's] official decision-making [sic] channels." Monell, 436 U.S. at 690, 98 S.Ct. 2018.

To establish the existence of a municipal policy or custom, a plaintiff must allege: (1) the existence of a formal policy which is officially endorsed by the municipality; (2) actions taken or decisions made by municipal officials with final decision making authority, which caused the alleged violation of plaintiff's civil rights; (3) a practice so persistent and widespread that it constitutes a custom of which constructive knowledge can be implied on the part of the policymaking officials; or (4) a failure by policymakers to properly train or supervise their subordinates, amounting to "deliberate indifference" to the rights of those who come in contact with the municipal employees. Moray v. City of Yonkers, 924 F.Supp. 8, 12 (S.D.N.Y.1996). See also Davis v. Lynbrook Police Dept., 224 F.Supp.2d 463, 478 (E.D.N.Y.2002). Although a single act of a city official "whose acts or edicts may fairly be said to represent official policy" may give rise to municipal liability under Section 1983, Monell, 436 U.S. at 694, 98 S.Ct. 2018, a municipality will only be liable under Section 1983, where a city official "responsible for establishing final policy with respect to the subject matter in question" makes a deliberate choice among competing alternatives that results...