United States District Court, D. Connecticut
SCOTT R. PALMENTA, Plaintiff,
v.
LISA R. STEVENS, SENIOR ASSISTANT PUBLIC DEFENDER, Defendant.
INITIAL REVIEW ORDER
STEFAN
R. UNDERHILL, UNITED STATES DISTRICT JUDGE.
Scott
R. Palmenta (“Palmenta”) is incarcerated at
Willard-Cybulski Correctional Institution. He has filed a
motion for appointment of counsel, a motion to freeze assets
and a civil complaint under 42 U.S.C. § 1983 naming
Senior Assistant Public Defender Lisa R. Stevens as a
defendant. For the reasons set forth below, the complaint is
dismissed and the motions for appointment of counsel and to
freeze assets are denied.
I.
Standard of Review
Under
28 U.S.C. § 1915A, I must review prisoner civil
complaints and dismiss any portion of the complaint that is
frivolous, malicious, or 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. 28 U.S.C. §
1915A. Although detailed allegations are not required, the
complaint must include sufficient facts to afford the
defendants fair notice of the claims and grounds upon which
they are based and to demonstrate a plausible right to
relief. Bell Atl. Corp. 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 570. Nevertheless, it is
well-established that “[p]ro se complaints
‘must be construed liberally and interpreted to raise
the strongest arguments that they suggest.'”
Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir.
2013) (quoting Triestman v. Fed. Bureau of Prisons,
470 F.3d 471, 474 (2d Cir. 2006)); see also Tracy v.
Freshwater, 623 F.3d 90. 101-02 (2d Cir. 2010)
(discussing special rules of solicitude for pro se
litigants).
II.
Facts
Palmenta
alleges that Assistant Public Defender Lisa Stevens
represented him prior to and during the trial in his
Connecticut criminal case, State v. Palmenta, Case
No. S01S-CR16-0190101-S. See Compl., ECF No. 1, at 6
¶¶ 4, 7-9. On February 15, 2017, Assistant Public
Defender Stevens filed motions to dismiss, to suppress,
in limine, and for uncharged misconduct. See
Id. ¶¶ 4, 6. The court never ruled on the
motions. See Id. ¶ 4. The State of Connecticut
offered Palmenta a plea deal on March 27, 2017. See
Id. ¶ 6. Palmenta claims that he could not consider
the offer because the court had not ruled on motions filed by
Assistant Public Defender Stevens. See Id. ¶ 7.
Palmenta's
criminal trial began on April 27, 2017. See Id. at
¶ 9. That day, the State of Connecticut filed an amended
information charging Palmenta with one count of burglary in
the third degree. See Id. At the conclusion of the
trial, on April 28, 2017, a jury found Palmenta guilty of
burglary in the third degree and of being a serious felony
offender. See Id. at 27, 39; State v.
Palmenta, Case No. S01S-CR16-0190101-S (Conn. Super. Ct.
Apr. 28, 2017) (Verdict Date).[1] On October 6, 2017, a judge
imposed a seven-year sentence to be served consecutively to
the sentence that Palmenta was serving at the time. See
Id. at 7, 9, 39-40.
On
October 16, 2017, Assistant Public Defender Stevens informed
Palmenta that the court would consider a modification to his
sentence to reduce the sentence to a one-year consecutive
sentence. See Id. at 43. Palmenta would serve the
one-year sentence at the expiration of the sentence that
Palmenta was serving at the time. See Id. In
exchange for the sentence modification, Palmenta was required
to agree to waive his rights to appeal the conviction and
sentence, to file a habeas petition challenging the
conviction and sentence, and to file an application for
sentence review. See Id. at 44. On October 24, 2017,
Palmenta filed an application for sentence modification to
reduce his sentence to one-year of imprisonment to be served
consecutively to the sentence that he was serving at the
time. See Id. at 46. On November 27, 2017, a judge
granted the application absent objection. See Id. at
46, 53-56. The sentence modification was conditioned on
waiving any claims that might be asserted on appeal, in a
habeas petition or in an application for sentence review.
See id.
III.
Discussion
The
complaint asserts that during her representation of Palmenta
in connection with his Connecticut criminal case, State
v. Palmenta, Case No. S01S-CR16-0190101-S, Assistant
Public Defender Stevens was ineffective in multiple ways.
Palmenta claims that Assistant Public Defender Stevens failed
to: interview witnesses prior to trial, cross-examine
witnesses, object to evidence offered by the State of
Connecticut for admission during the trial, pursue motions
filed prior to trial, challenge the information and amended
information, ensure that DNA and fingerprint evidence was
processed before trial, and object to the instructions given
to the jury by the judge at the end of the trial. See
Id. at 67. Palmenta further asserts that Assistant
Public Defender Stevens conspired with the State of
Connecticut to violate his constitutional rights. See
Id. at 6 ¶ 3. For relief, Palmenta seeks monetary
damages.
Section
1983 creates a private federal cause of action against any
person, acting under color or state law, who deprives an
individual of federally or constitutionally protected rights.
See Rehberg v. Paulk, 566 U.S. 356, 361 (2012). To
state a claim for relief under section 1983, a plaintiff must
allege that: (1) he or she was “deprived of a right
secured by the Constitution or laws of the United States,
” and (2) the “deprivation was committed under
color of state law.” Am. Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 49-50 (1999). To demonstrate
state action, a plaintiff must establish both that his or her
“alleged constitutional ‘deprivation [was] caused
by the exercise of some right or privilege created by the
State or by a rule of conduct imposed by the State or by a
person for whom the State is responsible,' and
that ‘the party charged with the deprivation [is] a
person who may fairly be said to be a state
actor.'” Id. at 50 (quoting Lugar v.
Edmondson Oil Co., 457 U.S. 922, 937 (1982)).
Generally,
a “public defender does not act under color of state
law when performing a lawyer's traditional functions as
counsel to a defendant in a criminal proceeding.”
Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981);
Harrison v. New York, 95 F.Supp.3d 293, 328-29
(E.D.N.Y. 2015) (public defenders and court-appointed counsel
do not act under color of state merely by virtue of their
position) (collecting cases). A public defender who conspires
with a state official to deprive a criminal defendant of his
constitutional rights, however, may be deemed to be acting
under color of state law. See Tower v. Glover, 467
U.S. 914, 920-22 (1984).
The
conduct of Assistant Public Defender Stevens as described in
the complaint falls within the “traditional
function” of a public defender as counsel to plaintiff
in connection with his state criminal case. Palmenta
generally asserts that Assistant Public Defender Stevens
conspired with the State of Connecticut to deprive him of his
constitutional rights. The Second Circuit has held that a
conclusory and unsupported allegation that a private
individual or entity acted together with a state actor is
insufficient to state a claim under section 1983 against the
private individual or entity. See Brown v. Legal Aid
Soc., 367 Fed.Appx. 215, 216 (2d Cir. 2010) (“To
the extent Brown attempts to avoid Dodson's limitation by
alleging that the public defenders in his case conspired with
a state court judge to pursue his illegal prosecution, . . .
this conspiracy allegation is wholly conclusory and, as such,
insufficient even at the pleading stage to establish that the
public defenders were acting under color of state
law.”); Ciambriello v. County of Nassau, 292
F.3d 307, 324 (2d Cir. 2002) (“Absent from
Ciambriello's complaint are any factual allegations
suggesting that CSEA conspired with the County.”)
(citations omitted). Palmenta has failed to plead any
nonconclusory facts showing that Stevens was conspiring with
state actors during her representation of him. See
Hutchins v. Camardella, No. 3:16-CV-00999 (JAM), 2017 WL
6731715, at *2 (D. Conn. Dec. 29, 2017) (“Nor has
plaintiff alleged in anything but conclusory terms that his
public defenders conspired with state actors, such that they
should be deemed to be state actors liable under §
1983.”) (citations omitted). Furthermore, even if the
court were to conclude that Palmenta had sufficiently alleged
that Assistant Public Defender Stevens had conspired with
state actors during her representation of him in his state
criminal trial, the claim against her would be barred by the
Supreme Court's decision in Heck v. Humphrey,
512 U.S. 477, 486-88 (1994).
To
recover damages under section 1983 for an unconstitutional
conviction or imprisonment, a plaintiff “must prove
that the conviction or sentence has been reversed on direct
appeal, expunged by executive order, declared invalid by a
state tribunal ..., or called into question by ... the
issuance of a [federal] writ of habeas corpus.”
Heck, 512 U.S. at 486-87. Although Palmenta does not
directly challenge the lawfulness of his conviction, if the
court were to conclude that the alleged acts or omissions of
Assistant Public Defender Stevens that occurred prior to and
during Palmenta's criminal trial constituted ineffective
assistance of counsel, Palmenta's conviction would
necessarily be called into question. Because Palmenta has not
demonstrated that his ...