Johnson v. Carrasquilla

          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 ...