United States District Court, D. Connecticut
INIITAL REVIEW ORDER
A. Bolden United States District Judge.
Brown ("Plaintiff), currently incarcerated at Etowah
County Detention Center in Gadsden, Alabama, filed this
Complaint pro se under 42 U.S.C. § 1983. Mr.
Brown's Complaint was received on February 1, 2017, and
his motion to proceed in forma pauperis was granted
on February 8, 2017. See Compl., ECF Nos. 1; Order,
ECF No. 2. Defendant is Attorney Austin Ryan McGuigan. Mr.
Brown alleges that Mr. McGuigan afforded him ineffective
assistance during his criminal trial and seeks a refund of
the fees his mother paid on his behalf.
Standard of Review
section 1915 A of title 28 of the United States Code, the
Court must review prisoner civil complaints and dismiss any
portion of the complaint that is frivolous or malicious, that
fails to state a claim upon which relief may be granted, or
that seeks monetary relief from a defendant who is immune
from such relief. Id. In reviewing a pro se
complaint, the Court must assume the truth of the
allegations, and interpret them liberally to "raise the
strongest arguments that they suggest." Sykes v.
Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013); see
also Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d Cir.
2010) (discussing special rules of solicitude for pro se
detailed allegations are not required, this Complaint must
include sufficient facts to afford Defendant fair notice of
the claims and the grounds upon which they are based and to
demonstrate a right to relief. Bell Atlantic v.
Twombly, 550 U.S. 544, 555-56 (2007). Conclusory
allegations are not sufficient. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). The plaintiff must plead
“enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at
December 20, 2011, Mr. Brown plead guilty and was convicted
in the state of Connecticut Superior Court in Hartford,
Connecticut for the offense of sale of controlled substance.
Pl.'s Argument, Compl., Ex. A ECF No. 1-2, 1. In March of
2016, Mr. Brown allegedly retained Mr. McGuigan to have his
2011 conviction for sale of a controlled substance vacated.
Id. at 2. The parties allegedly agreed that Mr.
McGuigan would charge $10, 000 as a retainer. Id.
Allegedly, after he received $7, 500.00 from Mr. Brown's
family members, Attorney McGuigan agreed to begin working on
the case. Id. In April 2016, Mr. Brown alleges, he
asked Attorney McGuigan how long it would take to vacate the
conviction. Id. Attorney McGuigan allegedly
responded that “it will be a ninety day cap.”
Id. Mr. Brown allegedly interpreted Mr.
McGuigan's statement to mean “within ninety days it
should be done.” Id. In May and June 2016, Mr.
McGuigan allegedly reported progress to Mr. Brown and
requested the remainder of the retainer. Id. Mr.
Brown's family members allegedly provided the remaining
$2, 500. Id. In September 2016, Mr. McGuigan
allegedly reported that he had sought to have the conviction
vacated in the wrong court and that he had to file a motion
in the Connecticut Appellate Court. Id. at 3.
Brown started to feel “betrayed by Mr. McGuigan”
and allegedly began “losing [his] confidence and
trust” in the attorney's ability. Pl.'s
Argument, 4. He allegedly requested that Mr. McGuigan return
the retainer. Id. Mr. McGuigan allegedly responded
“I already blew through that money, and I'm (now)
working for you for free.” Id. at 4. After the
retainer was been paid in full, Mr. Brown alleges, Attorney
McGuigan was generally unresponsive to Mr. Brown's
requests and has not filed the motion to vacate Mr.
Brown's conviction in the Connecticut Appellate Court.
Id. at 5.
Brown alleges that Mr. McGuigan has “not held up to his
professional responsibilities.” Pl.'s Argument, 5.
He claims that he has suffered injuries including
“splinting headaches, migraines, and severe
stress” and requests that the Court order Mr. McGuigan
to reimburse his retainer fee. Id.
state a section 1983 claim, Mr. Brown must allege that his
constitutional or federally protected rights were violated by
a person acting under color of state law. A person acts under
color of state law when he exercises “some right or
privilege created by the State … or by a person for
whom the State is responsible, ” and is “a person
who may fairly be said to be a state actor.” Lugar
v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). Private
attorneys are not state actors. See Licari v. Voog,
374 F. App'x 230, 231 (2d Cir. 2010) (“It is well
established that private attorneys-even if the attorney was
court appointed-are not state actors for the purposes of
§ 1983 claims.”). All claims against Attorney
McGuigan are dismissed pursuant to 28 U.S.C. §
1915A(b)(1). If Mr. Brown wishes to file a claim for legal
malpractice or breach of contract he should do so in state
an otherwise private person, including a private attorney,
can act under color of state law if he “engaged in a
conspiracy with state officials to deprive another of federal
rights.” Tower v. Glover, 467 U.S. 914, 920
(1984). A conspiracy claim must be pleaded with specificity.
See Dwares v. City of New York, 985 F.2d 94, 100 (2d
Cir. 1993) (“We have, of course, repeatedly held that
in order to state a claim of conspiracy under § 1983 the
complaint must contain more than mere conclusory
allegations”). A plaintiff must allege “an
agreement between a state actor and a private party to act in
concert to inflict an unconstitutional injury, and an overt
act done in furtherance of the conspiracy that causes the
plaintiff damages.” See Ciambriello v. County of
Nassau, 292 F.3d 307, 324-25 (2d Cir. 2002). Mr. Brown
alleges no facts suggesting that Attorney McGuigan conspired
with any state actor. Thus, this exception does not save his
accordance with the foregoing analysis, the Court enters ...