United States District Court, D. Connecticut
DR. ERNEST C. GARLINGTON, Plaintiff,
SUSAN CLIFFORD and COLDWELL BANKER REAL ESTATE AGENCY, Defendants.
ORDER ON MOTION TO AMEND COMPLAINT AND MOTION FOR
TEMPORARY RESTRAINING ORDER
A. Bolden United States District Judge.
Ernest C. Garlington (“Plaintiff”) brings this
action against Susan Clifford and Coldwell Banker Real Estate
Agency (“Coldwell Banker”) (collectively, the
“Defendants”). ECF No. 1. He previously filed two
ex parte motions for a temporary restraining order,
ECF No. 9; ECF No. 10, which the Court denied without
prejudice to renewal because neither motion attached a
memorandum of law explaining why Dr. Garlington was entitled
to the requested relief. ECF No. 11. On June 26, 2017, Dr.
Garlington filed an Amended Complaint. ECF No. 12. On August
4, 2017, Ms. Clifford filed a motion to dismiss the Amended
Complaint. ECF No. 24.
August 7, 2017, Dr. Garlington filed a motion for leave to
amend his Amended Complaint, attaching a proposed Second
Amended Complaint. ECF No. 29. The proposed Second Amended
Complaint seeks to add several additional defendants to this
case: Susan O. Storey, Brian Carlow, John Day, Theodore Koch
III, David DeRosa, and Bruce McIntyre (collectively, the
“Public Defender Defendants”). Each of these
parties is, according to the proposed Second Amended
Complaint, either affiliated with the Office of the Chief
Public Defender in Hartford, Connecticut or had been
appointed as a Special Public Defender in Dr.
Garlington's underlying state court criminal or habeas
corpus proceedings. See Second Amend. Compl. at 4-5,
ECF No. 29-1. Dr. Garlington has also filed a renewed motion
for a temporary restraining order against Defendants and the
Public Defender Defendants. ECF No. 30.
reasons that follow, the Court DENIES Dr.
Garlington's motion for leave to amend his Amended
Complaint, ECF No. 29. The Court also DENIES
Dr. Garlington's renewed motion for a temporary
restraining order, ECF No. 30.
MOTION FOR LEAVE TO AMEND COMPLAINT
Dr. Garlington is litigating this case pro se, the
Court must afford him “special solicitude, ”
including in procedural matters. See Ruotolo v.
I.R.S., 28 F.3d 6, 8 (2d Cir. 1994) (providing that
district court “should have afforded [pro se
plaintiffs] special solicitude” and “had an
obligation to make certain that the [plaintiffs] were aware
of and understood the consequences to them of their failure
to comply with the Local Rules”). As Dr. Garlington
prepared his proposed Second Amended Complaint pro
se, the Court construes his pleadings
“liberally” and interprets them “to raise
the strongest arguments that they suggest.”
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
474 (2d Cir. 2006). Despite the special solicitude that the
Court must show Dr. Garlington out of consideration for his
pro se status, however, his proposed Second Amended
Complaint must still meet the “pleading standards
otherwise prescribed by the Federal rules of Civil
Procedure.” Suares v. Verizon Commc'ns
Inc., No. 11-CIV-5050 (LAP), 2012 WL 4571030, at *3
(S.D.N.Y. Sept. 29, 2012) (internal quotation marks omitted).
Rule 15, when a party is no longer entitled to amend his
pleading as a matter of course he “may amend [his]
pleading only with the opposing party's written consent
or the court's leave, ” but the “court should
freely give leave when justice so requires.”
Fed.R.Evid. 15(a)(2). “Where it appears that granting
leave to amend [a complaint] is unlikely to be productive,
however, it is not an abuse of discretion [for the district
court] to deny leave to amend. One appropriate basis for
denying leave to amend is that the proposed amendment is
futile. An amendment to a pleading is futile if the proposed
claim could not withstand a motion to dismiss” under
Rule 12(b)(6). Lucente v. Int'l Bus. Machines
Corp., 310 F.3d 243, 258 (2d Cir. 2002) (internal
quotation marks and citations omitted); see also
Nwachukwu v. Liberty Bank, No. 3:16-cv-704 (CSH), 2016
WL 3647837, at *2 (D. Conn. July 1, 2016) (“Although
leave to amend must be freely given under ordinary
circumstances, denial is proper where the proposed amendment
would be ‘futile.' An amendment is considered
‘futile' if the amended pleading fails to state a
claim or would be subject to a successful motion to dismiss
on some other basis.”).
allowing Dr. Garlington leave to file the Second Amended
Complaint, the Court first considers whether the new
allegations in the Second Amended Complaint state a claim and
would survive a motion to dismiss under Rule 12(b)(6). A
motion to dismiss for failure to state a claim under Rule
12(b)(6) is designed “merely to assess the legal
feasibility of a complaint, not to assay the weight of
evidence which might be offered in support thereof.”
Official Comm. of Unsecured Creditors of Color Tile, Inc.
v. Coopers & Lybrand, LLP, 322 F.3d 147, 158 (2d
Cir. 2003) (internal citations omitted). When deciding a Rule
12(b)(6) motion to dismiss, a court must accept the material
facts alleged in the complaint as true, draw all reasonable
inferences in favor of the plaintiff, and decide whether it
is plausible that the plaintiff has a valid claim for relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009);
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56
(2007); In re NYSE Specialists Sec. Litig., 503 F.3d
89, 95 (2d Cir. 2007). A claim is facially plausible if
“the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556
U.S. at 678. Although “detailed factual
allegations” are not required, a complaint must offer
more than “labels and conclusions, ” “a
formulaic recitation of the elements of a cause of action,
” or “naked assertion [s]” devoid of
“further factual enhancement.” Twombly,
550 U.S. at 555-57. Plausibility at the pleading stage is
nonetheless distinct from probability, and “a
well-pleaded complaint may proceed even if it strikes a savvy
judge that actual proof of [the claims] is improbable, and .
. . recovery is very remote and unlikely.” Id.
at 556 (internal quotation marks omitted).
Garlington's proposed Second Amended Complaint intends to
adds claims against the Public Defender Defendants under 42
U.S.C. § 1983 (“Section 1983”), 42 U.S.C.
§§ 1985(2) and (3) (“Section 1985(2)”
and “Section 1985(3)”, and 42 U.S.C. § 1986
(“Section 1986”). See Second Amend.
Compl. at 3. As the Court explains below, because the Second
Amended Complaint fails to state these claims against the
Public Defender Defendants and would not survive a motion to
dismiss under Rule 12(b)(6), it would be futile to grant Dr.
Garlington's current motion for leave to amend his
pleading. See Lucente, 310 F.3d at 258. The Court
will therefore deny Dr. Garlington's motion for leave to
amend his Complaint.
Heck v. Humphrey
the claims that Dr. Garlington raises in his proposed Second
Amended Complaint are concerned with challenging the validity
of his underlying state court criminal conviction and
sentence, as they all center on allegations that the judge
presiding over his criminal proceeding and the subsequent
habeas proceedings had a financial conflict of interest.
See generally Second Amend. Compl. The Supreme Court
has explained that such allegations do not state a Section
We hold that, in order to recover damages for allegedly
unconstitutional conviction or imprisonment, or for other
harm caused by actions whose unlawfulness would render a
conviction or sentence invalid, a [Section 1983] plaintiff
must prove that the conviction or sentence has been reversed
on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such
determination, or called into question by a federal
court's issuance of a writ of habeas corpus. A claim for
damages bearing that relationship to a conviction or sentence
that has not been so invalidated is not cognizable under
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Thus,
whenever a “a state prisoner seeks damages in a
[Section 1983] suit, ” the Court must first “
consider whether a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or
sentence; if it would, the complaint must be dismissed unless
the plaintiff can demonstrate that the conviction or sentence
has already been invalidated.” Id. at 487;
see also Covington v. City of New York, 171 F.3d
117, 124 (2d Cir. 1999) (“In Heck, the Court
held that [Section 1983] actions, like civil tort actions,
are not appropriate vehicles for challenging the validity of
outstanding criminal judgments. In order to protect against
such collateral attack against state convictions or