United States District Court, D. Connecticut
REBECCA L. JOHNSON and JOSEPHINE SMALLS MILLER. Plaintiffs,
v.
KARYL CARRASQUILLA and MICHAEL BOWLER, Defendants.
RULING ON MOTION TO DISMISS
Michael P. Shea, U.S.D.J.
Defendants
Karyl Carrasquilla (“Carrasquilla”) and Michael
Bowler (“Bowler” and collectively,
“Defendants”) move under Fed.R.Civ.P. 12(b)(1)
and (6) to dismiss the Second Amended Complaint
(“SAC”) brought by plaintiffs Rebecca L. Johnson
(“Johnson”) and Josephine Smalls Miller
(“Miller” and collectively,
“Plaintiffs”). (ECF No. 26.) Johnson and Miller
are attorneys who allege that they were singled out for
attorney disciplinary proceedings due to their race and civil
rights practice and assert claims for: (1) violation of their
Due Process rights under the Fourteenth Amendment; (2)
violation of the Equal Protection clause of the Fourteenth
Amendment; (3) violation of 42 U.S.C. § 1983 for
interfering with their right to use the federal courts; and
(4) against Bowler only, violation of 42 U.S.C. § 1983
for interfering with the rights of African-Americans
attorneys to make claims of racial discrimination. Plaintiffs
also move to strike several exhibits attached to
defendants' motion. (ECF No. 32.) Because the SAC suffers
from fatal jurisdictional and pleading flaws, I GRANT
Defendants' motion to dismiss and DENY plaintiffs'
motion to strike. In light of this opinion, Plaintiff's
motion for oral argument (ECF No. 40) is also DENIED.
I.
Factual Background
This
case largely repeats the allegations in an earlier case
brought by Miller that I dismissed, and adds similar
allegations by a second plaintiff, Johnson. For an extensive
discussion of Miller's substantially identical claims and
a description of Connecticut's Attorney Discipline
process, see Miller v. Sutton, No. 3:15-CV-1111
(MPS), 2016 WL 3976540, at *2 (D. Conn. July 21, 2016),
aff'd, 697 Fed.Appx. 27 (2d Cir. 2017). I recite only the
facts from Johnson's and Miller's SAC necessary to
decide this motion.
Johnson
and Miller are African-American attorneys licensed to
practice in the State of Connecticut. (ECF No. 20
(hereinafter “SAC”) at ¶¶ 1-2.)
Defendant Michael Bowler is Bar Counsel for the Statewide
Grievance Committee (“SGC”), and Defendant Karyl
Carrasquilla is Chief Disciplinary Counsel, Office of the
Chief Disciplinary Counsel (“OCDC”). (SAC at
¶¶ 3- 4.) I summarize Johnson's and
Miller's allegations in turn below.
A.
Johnson
Johnson
was licensed to practice law in Connecticut starting in
January 1994. (SAC at ¶ 6.) The SGC suspended Johnson in
2002, 2004, and 2006. (SAC at ¶¶ 6-11.) In each
instance, Johnson alleges that she was inexplicably singled
out for discipline from other attorneys and firms
participating in the same conduct. (Id.) During the
2006 suspension proceedings, Johnson also attempted to
present evidence to the trial judge that her discipline was
racially motivated, but the judge refused to consider the
evidence. (SAC at ¶¶ 13-16.) Johnson applied for
reinstatement in March 2009, but was denied. (SAC at
¶¶ 18-23.) The panel denying reinstatement
allegedly chastised Johnson for choosing plaintiff Miller as
her counsel for the proceedings. (SAC at ¶ 22.) Johnson
alleges that when she applied for reinstatement again in
2013, she was referred to an individual associated with a
group called Lawyers Concerned for Lawyers, who allegedly
made various statements to Johnson suggesting that the
Connecticut judiciary would be hostile to her application for
reinstatement if she continued to, among other things, engage
in a civil rights practice or retain Miller as her attorney.
(SAC at ¶¶ 24-27.) Johnson remains under
suspension. (SAC at ¶ 28.) The SAC does not allege that
Bowler and Carrasquilla were involved in Johnson's
suspensions or attempts at reinstatement.
B.
Miller
Miller
has been admitted to practice in Connecticut since 2004 and
specializes in employment discrimination and civil rights
law. (SAC at ¶¶ 30, 31.) Miller has previously
brought civil rights cases in this Court against the City of
Bridgeport and state agencies alleging racial discrimination.
(SAC at ¶¶ 32-33.) Miller recites evidence of
discrimination she allegedly presented in those actions-in
particular, numerous incidents where the City of Bridgeport
refused to pay attorney's fees for her legal services but
did so for Caucasian attorneys in similar circumstances. (SAC
at ¶ 34(a)(1)-(7).) Miller also alleges that the
Connecticut judiciary has a conflict of interest in the
attorney discipline process by virtue of its employment of
the defendants. (SAC at ¶¶ 131-149.) Specifically,
the SAC asserts that state prosecutors in Connecticut used to
be part of the judicial branch, but, due to the appearance of
a conflict in housing the prosecutorial and adjudicatory
functions in the same branch of government, were later
reorganized in the executive branch and given institutional
protections from the judiciary. (SAC at ¶¶
135-141.) Unlike in the criminal system, however, Miller
alleges that the judicial branch has direct participation and
oversight over the prosecution and adjudication of attorney
discipline-in particular, Disciplinary Counsel are appointed
by Superior Court judges for terms of only one year (SAC at
¶¶ 134, 144) and the Disciplinary Counsel are
“assigned directly to the Chief Court
Administrator” (SAC at ¶ 148).
The
gravamen of Miller's allegations, however, centers around
allegedly racially discriminatory enforcement of rules of
professional conduct and actions taken during attorney
discipline proceedings against her. I summarize these
allegations in more detail below, after providing some
relevant background.
1.
Disciplinary Proceedings
The
Court recites the following information as background
only.[1] Miller has been subject to two
disciplinary proceedings that appear to form the basis of her
complaint. In the first, Grievance Complaint #14-0803, Judge
Jeffrey Meyer of this Court sanctioned Miller for false
statements made to the court by dismissing the case, imposing
a fine, and referring Miller to the SGC. (ECF No. 26-2 (Ex.
A) at 1-21.) The SGC forwarded Judge Meyer's referral to
the Danbury Grievance Panel, which filed a formal grievance
complaint against Miller. (ECF No. 26-2 (Ex. B) at 22-25.)
The SGC then forwarded that complaint to the Stamford/Norwalk
Grievance Panel, which found probable cause that Miller had
violated the relevant professional rules. (ECF No. 26-2 (Ex.
C) at 26-28.) The Complaint was forwarded to the Office of
Chief Disciplinary Counsel (“OCDC”) for
prosecution before the reviewing committee of the SGC.
(Id.) The SGC's formal proceeding against Miller
is described at length in Miller v. Sutton, 2016 WL
3976540, at *5. As relevant here, defendant Carrasquilla
presented evidence at the hearing on behalf of OCDC, arguing
that Miller had made the false statements before this Court,
but that the OCDC had not met its burden on certain
additional allegations of unrelated attorney misconduct
charged against Miller. (See, e.g., ECF No. 26-2 (Ex. E) at
66.) The reviewing SGC committee ultimately found Miller in
violation for the underlying false statements, but did not
find a violation for the additional allegations of
misconduct. (See ECF No. 26-2 (Ex. F) at 77-80.)
In the
other disciplinary action, Grievance Complaint #15-0688,
following a similar process as described above, a reviewing
committee of the SGC again held a formal hearing for
allegations of misconduct against Miller arising from
referrals from the Connecticut Appellate Court, a Connecticut
Superior Court Judge, and disciplinary counsel Suzanne
Sutton's investigation of misconduct in two other cases,
Igidi v. CT DOC et. al., No. 3:13 CV-01338-RNC (D.
Conn.), and Eaddy v. DCF et. al., No. HHD
CV-10-6013363 (Conn. Super.) (the “Igidi”
and “Eaddy” matters). (See ECF No. 26-2 (Exs. H)
at 89-92). (Attorney Sutton is not a defendant in this
action.) The SGC reviewing committee again found Miller in
violation, but instead of issuing discipline, directed the
OCDC to file a presentment proceeding in the Superior Court.
(ECF No. 26-2 (Ex. K) at 112-114.)
2.
Allegations against Bowler
Miller's
allegations against Bowler focus on his role in assisting the
SGC with Grievance Complaint No. 15-0688.
Miller
alleges that Bowler “caused an investigation to be made
of at least two of Miller's race discrimination/civil
rights cases while refusing to perform investigation of
Caucasian attorneys” and “caused a hearing to be
held regarding allegations of professional misconduct that
had been raised by members of the Connecticut judicial
branch.” (SAC at ¶¶ 34(c), 61.) In
particular, Miller states that the SGC, through Bowler, filed
a complaint against Miller for “the alleged filing of
false, unmeritorious, frivolous complaints or allegations of
racial discrimination” in the Igidi and Eaddy matters.
(SAC at ¶ 34(d).) Miller also alleges that Bowler
improperly allowed the Connecticut Superior Court judge's
referral against Miller to proceed through the disciplinary
process when he knew that the allegations were biased and
based on false evidence. (SAC at ¶¶ 50-52.) Miller
further alleges that Bowler failed to advise her about the
existence of a hearing transcript that the SGC reviewing
committee relied on in reaching its decision. (SAC at
¶¶ 62-69.) The SAC also alleges that Bowler should
have known that the Appellate Court's referral in the
15-0688 matter was inappropriate because the underlying
conduct did not rise to an ethical violation, among other
reasons. (SAC at ¶ 113.)
Miller's
other allegations do not specifically pertain to the
disciplinary proceedings against her. For example, Miller
alleges that Bowler took no action to investigate her
complaint about alleged misstatements made by a Connecticut
Assistant Attorney General. (SAC at ¶ 34(b).) Miller
alleges that Bowler acted in concert with Carrasquilla and
others to “interfere with Miller's pursuit of
racial discrimination complaints on behalf of her clients,
” and singled out racial discrimination complaints in
particular. (SAC at ¶¶ 35-37.) Miller also alleges
that Bowler sought to insulate several other attorneys from
discipline for professional misconduct because they were
Caucasian. (SAC at ¶¶ 38-60.) The complaint alleges
that several of these complaints were resolved at the
probable cause stage or otherwise no referral was made. (See,
e.g., SAC at ¶¶ 38- 42 (no probable cause against
Attorney Ingraham), 49(a)(1) (no referral against Attorney
Jordano), 49(a)(2) (no referral against Attorney Trotta),
49(a)(3) (no referral against Attorney Johnson), 49(a)(4) (no
referral against Attorney Cotter), 49(a)(7) (no referral
against Attorney Tallberg), 54- 57 (no probable cause against
Attorney Rome). The complaint does not clearly allege
Bowler's role in these comparator cases, with one
exception. For Attorney Brouillet, Miller alleges Bowler
failed to timely process Miller's complaint, but also
alleges that the local grievance panel dismissed the
complaint for lack of probable cause. (SAC at ¶¶
43-47.)
3.
Allegations against Carrasquilla
Miller's
allegations against Carrasquilla are largely identical to
those against Bowler. (See SAC at ¶ 34(b), (c), 35,
49-52, 58, 61, 62-69, 113.) Miller's additional
allegations pertaining to Carrasquilla are that: Carrasquilla
recommended that one of the disciplinary actions against
Miller advance to a presentment proceeding because, among
other things, Miller's “attitude” was
improper (SAC at ¶ 34(d));[2] that in the 14-0803 action,
Carrasquilla improperly sought a voluntary suspension for
Miller's false pleading and relied on an inappropriate
Caucasian comparator (SAC at ¶ 34(e)); Carrasquilla had
ex parte communications with the reviewing committee
concerning Miller's decision not to seek reinstatement
following the Grievance Complaint 15-0688 decision (SAC at
¶¶ 78-85); and Carrasquilla improperly permitted
evidence of the Igidi and Eaddy cases to be used during the
hearing in Grievance Complaint No. 15-0688 (SAC at ¶
116).[3]
C.
Claims
Based
on the foregoing allegations, Johnson and Miller allege four
claims against Bowler and Carrasquilla in both their
individual and official capacities. (SAC at 2, 42-46.) First,
plaintiffs claim that defendants violated the Due Process
Clause of the Fourteenth Amendment by (a) “[r]efusing
to allow the calling of witnesses chosen by them in support
of their defenses at the time of probable cause
hearings”; (b) “[v]acating subpoenas lawfully
issued to witnesses that would have supported the defense at
probable cause hearings”; (c) “[r]efusing to
permit access to all records, documents or other materials to
which the reviewing panel has access at the time of probable
cause hearings”; (d) “[c]laiming attorney client
privilege, work product privilege or other privileges in
avoidance of providing full access to records, documents or
other material to which the reviewing panel has access at the
time of probable cause hearings”; and (e)
“[b]ringing multiple prosecutions of probable cause
hearings instead of consolidation of complaint.” (SAC
at 42, ¶ 150.) Second, plaintiffs claim that defendants
violated the equal protection clause of the Fourteenth
Amendment by: (a) “[i]nvestigat[ng] . . .
African-American attorneys under circumstances where
similarly situated Caucasian attorneys were not
investigated”; (b) “[i]nvestigating
African-American attorneys at the insistence of judicial
authorities under circumstances when they knew or should have
known that those judicial complaints were made for biased,
harassing and unwarranted reasons”; and (c) that
defendants “knew or should have known of the propensity
of Connecticut court system authorities to engage in a shadow
process. . . .” (SAC at 44, ¶ 150.) Third,
plaintiffs claim that defendants violated 42 U.S.C. §
1983, because by “finding professional misconduct in
the circumstances as alleged herein, Carrasquilla and Bowler
have interfered with Johnson and Miller's rights under 42
U.S.C. § 1983, the right to make a claim of racial
discrimination, utilizing the federal district courts.”
(SAC at 44, ¶ 150.) Fourth, plaintiffs claim that
defendants violated 42 U.S.C. § 1983 because by
“finding professional misconduct in the bringing of
claims of racial discrimination against Johnson and Miller,
Carrasquilla and Bowler have maintained a policy and practice
of interfering with the rights of African-American attorneys
under 42 U.S.C. § 1983, to make claims of racial
discrimination.” (SAC at 45, ¶¶ 151.) They
further allege that “the defendants have engaged in a
continuous practice and policy of racially discriminatory
enforcement of its attorney discipline processes, beginning
at least since January 2002 and continuing through the
present.” (SAC at 45, ¶¶ 152.) Plaintiffs
seek compensatory damages, declaratory relief, costs, and
fees. (SAC at 46.)
II.
Legal Standard
Generally,
pro se plaintiffs are “entitled to special solicitude,
” and courts must interpret their submissions “to
raise the strongest arguments that they suggest.”
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
477 (2d Cir. 2006) (internal quotation marks and citations
omitted). Pro se attorneys, however, are generally
experienced in litigation and cannot claim such
“special consideration.” Holtz v. Rockefeller
& Co., 258 F.3d 62, 82 n.4 (2d Cir. 2001) (citation
and internal quotation marks omitted); Tracy v.
Freshwater, 623 F.3d 90, 102 (2d Cir. 2010)
(“[T]he degree of solicitude may be lessened where the
particular pro se litigant is experienced in litigation and
familiar with the procedural setting presented . . . [A]
lawyer representing himself ordinarily receives no such
solicitude at all.”) (internal citations omitted). As
discussed above, Miller is an attorney licensed to practice
in Connecticut, and she is representing Johnson in this
action, so no solicitude is required.
Because
this is a motion to dismiss, I take the plaintiffs'
factual allegations in the complaint “to be true and
[draw] all reasonable inferences in” their favor.
Harris v. Mills,572 F.3d 66, 71 (2d Cir. 2009).
“To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal,556 U.S. 662, 678, (2009)
(citation and quotation marks omitted). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. A ...