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Garlington v. Clifford

United States District Court, D. Connecticut

March 24, 2018

SUSAN CLIFFORD, et al., Defendants.



         Ernest Garlington (“Plaintiff”), incarcerated at the MacDougall-Walker Correctional Institution in Suffield, Connecticut, and proceeding pro se, has sued Susan Clifford and Coldwell Banker Real Estate Agency (“Coldwell Banker”) (collectively “Defendants”) under 42 U.S.C § 1983 for conspiring to violate his rights under the Fifth, Sixth, and Fourteenth Amendments of the U.S. Constitution and under 42 U.S.C. § 1985.

         This ruling addresses a number of filings by the parties in this case. Both Ms. Clifford and Coldwell Banker move to dismiss the Amended Complaint. ECF No. 42, ECF No. 45. Mr. Garlington has moved for the Court to reconsider its Order, dated August 20, 2017, denying his motion to file a second amended complaint and a separate motion for a temporary restraining order. ECF No. 53. Mr. Garlington also has moved to file a second amended complaint. ECF No. 57. Finally, Mr. Garlington has moved for the appointment of counsel, ECF No. 60, and for injunctive relief. ECF No. 61.

         For the reasons that follow, the Court GRANTS Ms. Clifford's and Coldwell Banker's motions to dismiss. The Court DENIES Mr. Garlington's motion to amend and DENIES his motions for reconsideration, appointment of counsel, and injunctive relief as moot.


         A. Factual Allegations

         Mr. Garlington is currently serving a thirty-three year term of incarceration for allegedly conspiring to murder Derek Hopson, the ex-husband of Mr. Garlington's wife. Am. Compl. at 19. Mr. Hopson allegedly married the mother of former professional basketball player Ray Allen. Id.

         In August of 2005, Ms. Clifford's family friends, the Dolans, allegedly met with Mr. Allen who had expressed interest in purchasing the Dolans' home in Meriden, Connecticut. Id. ¶ 4. In October 2006, Ms. Clifford, who is a real estate broker with Coldwell Banker, allegedly met with the Dolans, who had hired her to help sell their waterfront home. Id. ¶ 5. Ms. Clifford allegedly stood to gain a commission of over $240, 000 and the Dolans would profit two-to-three million dollars, if Ms. Clifford was successful in selling the Dolans' property. Id. ¶ 5.

         In July 2007, Ms. Clifford's husband, Connecticut Superior Court Judge Patrick Clifford, allegedly was assigned to preside over Mr. Garlington's criminal case. Id. ¶ 6. Judge Clifford allegedly is a basketball “fanatic” and is acquainted with Mr. Allen and is closely associated with the Dolans. Id. In August 2007, before Mr. Garlington's criminal trial, Mr. Allen allegedly contacted Ms. Clifford to express his continued interest in purchasing the Dolans' home. Id. ¶ 8.

         In October of 2007, during jury selection for Mr. Garlington's criminal trial, Ms. Clifford allegedly was the subject of a private conversation between Judge Clifford, the prosecuting attorney, and Mr. Garlington's criminal defense attorney, surreptitiously recorded without their knowledge. Id. ¶ 9. During this conversation, Judge Clifford allegedly said that Ms. Clifford “better start shaking the money tree” because the Cliffords needed money to pay for their daughters upcoming wedding. Id. Allegedly, Mr. Garlington's attorney commented that, if Ms. Clifford helped sell the Dolans' property to Mr. Allen, the Cliffords could collect the commission for their retirement savings. Id.

         In November 2007, a jury convicted Mr. Garlington. Before his sentencing, he allegedly hired a Boston law firm to represent him in the criminal matter. Id. ¶ 11. Mr. Garlington's attorney allegedly filed motions for Judge Clifford to recuse himself from Mr. Garlington's case and requested the case be tried again, due to the “lack of an appearance of impartiality.” Id. ¶ 13. In response to the motions, the prosecutor in the matter allegedly submitted documentary evidence supposedly signed by the Dolans, but that allegedly was forged by Ms. Clifford, stating that Ms. Clifford would earn no commission, if she sold the Dolan property. Id. ¶ 14.

         Mr. Garlington's recusal motion was assigned to Connecticut Superior Court Judge Robert Holzberg. Id. ¶ 15. Mr. Garlington asserts that Judge Holzberg was biased against Mr. Garlington because Judge Holzberg had convicted Robert Santos, the person whom Dr. Garlington allegedly hired to murder Mr. Hopson, the subject of Mr. Garlington's criminal matter pending before Judge Clifford. Id. Judge Holzberg denied Mr. Garlington's motion. Id. ¶ 16.

         Judge Clifford allegedly sentenced Mr. Garlington to thirty-three years' incarceration as retaliation for Mr. Garlington having exposed Judge Clifford's financial conflict of interest. Id. ¶ 17. Mr. Garlington further alleges that, if Ms. Clifford's alleged act of forgery had been revealed, “the wrongful conviction would have been vacated and Dr. Garlington would be a free, innocent man.” Id. ¶ 20.

         Mr. Garlington alleges that the Connecticut Public Defender Service appointed Theodore Koch to represent Mr. Garlington in his habeas appeal. Id. ¶ 21. Mr. Garlington maintains that Ms. Clifford had clandestine telephone conversations with Mr. Koch, during which she allegedly intimidated, coerced, and colluded with Mr. Koch, resulting in Mr. Koch withdrawing from his representation of Mr. Garlington. Id. ¶¶ 21-22. Mr. Koch allegedly sent Mr. Garlington a letter, which stated:

When I told you I would take your habeas case, I did not know Judge Clifford. Then he was assigned to be the Presiding Judge of New London, and I got to know him from that. I know that you and I have discussed your claims against him, and you have somewhat tamped them down at my advice, but I do not want to restrict you from making as powerful an attack against your conviction as you wish to make. There arises a sense of conflict of interest when I have cases before Judge Clifford in which I am asking him to be as fair to my client as possible, and on the other hand I am accusing him of insidious corruption in a habeas. I don't think he would handle that well, and my trial-level clients may suffer from it. I hope you understand.

Id. at 32-33. Mr. Garlington maintains that Mr. Koch's letter demonstrates that the Cliffords and Coldwell Banker met with Mr. Koch to offer him an ultimatum, i.e., either Mr. Koch withdraw his representation of Mr. Garlington or Mr. Koch's “trial level clients may suffer.” Id. ¶ 24.

         Mr. Garlington maintains that Coldwell Banker colluded with Ms. Clifford by enabling Ms. Clifford to forge documents under its seal for the purpose of obstructing the due course of justice. Id. ¶ 34.

         B. ...

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