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Peterkin v. Cicchiello

United States District Court, D. Connecticut

July 15, 2019

GARY CICCHIELLO, et al., Defendants.



         Preliminary Statement

         Plaintiff, Doram Anthony Peterkin (“Peterkin”), currently confined at Corrigan-Radgowski Correctional Center in Uncasville, Connecticut, and his wife, Karol Peterkin, filed this complaint pro se under 42 U.S.C. § 1983. Peterkin contends that the defendants, Attorney Gary Cicchiello, Cicchiello and Cicchiello LLC, and John Doe provided ineffective assistance in several criminal matters thereby depriving Peterkin of equal protection of the laws and due process. The complaint was received on May 24, 2019, and Peterkin's motion to proceed in forma pauperis was granted on July 12, 2019.

         Standard of Review

         Under section 1915A of title 28 of the United States Code, the Court must review prisoner civil complaints and dismiss any portion of the complaint that is frivolous or malicious, that 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. Id. In reviewing a pro se complaint, the Court must assume the truth of the allegations, and interpret them liberally to “raise the strongest arguments [they] suggest[].” Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). see also Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010) (discussing special rules of solicitude for pro se litigants). Although detailed allegations are not required, the complaint must include sufficient facts to afford the defendants fair notice of the claims and the grounds upon which they are based and to demonstrate a right to relief. Bell Atlantic 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.


         In 2015, Peterkin and his wife retained Cicchiello and Cicchiello LLC to represent him in four criminal cases. Attorney Gary Cicchiello and an associated began working on his cases. Doc. No. 1, ¶ 1. During the court proceedings, Peterkin asked Attorney Cicchiello and his associate to obtain judicial pretrial discovery, a bill of particulars, an affidavit of criminal complaint, and all the state's evidence against him. Peterkin never received any of these items. Id., ¶ 2.

         Peterkin repeatedly asked Attorney Cicchiello and his associate to seek return of seized property and file motions to suppress and dismiss. They falsely told him such motions are not permitted in Connecticut. Id., ¶ 4. They did not adequately represent him in the criminal cases. Id., ¶ 6.

         Attorney Cicchiello intimidated and coerced Peterkin to accept a plea agreement. Id., ¶ 7. Attorney Cicchiello lied about the plea agreement. He told Peterkin that he would be pleading to a charge of possession as a drug-dependent person. Instead, Peterkin pleaded to a charge of intent to sell as a non-dependent person. Id., ¶ 8.


         Karol Peterkin

         As a preliminary matter, the Court notes that Peterkin's wife Karol is identified in the caption as a plaintiff. As a pro se litigant, Peterkin cannot assert claims on behalf of his wife. See Berrios v. New York Hous. Auth., 564 F.3d 130, 133 (2d Cir. 2009) (pro se litigant can represent only himself). Federal Rule of Civil Procedure 11 requires that every pleading be signed by an attorney of record or, if the litigant is not represented, by the litigant herself. Fed.R.Civ.P. 11(a). Karol Peterkin did not sign the complaint. In addition, to commence an action, the plaintiffs must pay the filing fee or each plaintiff must submit an application to proceed in forma pauperis. See 28 U.S.C. §§ 1914(a) (requiring parties to pay filing fee to commence action) and 1915(a) (person may be excused from prepayment of filing fee by seeking leave to proceed in formal pauperis). The filing fee was not paid in this case and Karol Peterkin did not submit a motion to proceed in forma pauperis. As she has not complied with any of the requirements to commence an action, all claims purportedly asserted by Karol Peterkin are dismissed.

         Section 1983

         To state a claim under 42 U.S.C. § 1983, Peterkin must allege that his constitutionally or federally protected rights were violated by a person acting under color of state law. A person acts under color of state law when he exercises “some right or privilege created by the State … or by a person for whom the State is responsible, ” and is “a person who may fairly be said to be a state actor.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). “It is well established that private attorneys … are not state actors for the purposes of § 1983 claims.” Licari v. Voog, 374 Fed.Appx. 230, 231 (2d Cir. 2010) (citing Rodriguez v. Weprin, 116 F.3d 62, 65-66 (2d Cir. 1997)). Peterkin alleges a private attorney-client relationship with Attorney ...

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