Brown v. Legal Aid Society , 367 F. App'x 215 ( 2010 )

08-2996-pr
Brown v. Legal Aid Soc’y
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 23 rd day of February, two thousand ten.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 GUIDO CALABRESI,
9 Senior Circuit Judge,
10 CHRISTOPHER F. DRONEY, *
11 District Judge.
12
13 - - - - - - - - - - - - - - - - - - - -X
14 Thurman J. Brown,
15 Plaintiff-Appellant,
16
17 -v.- 08-2996-pr
18
19 Legal Aid Society,
20 Defendant-Appellee.
21 - - - - - - - - - - - - - - - - - - - -X
22
23 FOR APPELLANT: Thurman J. Brown, pro se, Rome, NY.
24
*
Christopher F. Droney, Judge of the United States
District Court for the District of Connecticut, sitting by
designation.
1
1 FOR APPELLEE: William D. Buckley, Garbarini &
2 Scher, P.C., New York, NY.
3
4 Appeal from a judgment of the United States District
5 Court for the Eastern District of New York (Seybert, J.).
6 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
7 AND DECREED that the order of the district court be
8 AFFIRMED.
9 New York State prisoner Thurman J. Brown appeals pro se
10 from the district court’s sua sponte dismissal of his
11 complaint brought pursuant to 42 U.S.C. § 1983 for failure
12 to state a claim. We assume the parties’ familiarity with
13 the underlying facts, the procedural history of the case,
14 and the issues on appeal.
15 We review a district court’s 28 U.S.C. § 1915A
16 dismissal of a complaint de novo. See Shakur v. Selsky, 391
17 F.3d 106, 112 (2d Cir. 2004). Section 1983 creates a cause
18 of action only against persons acting under color of state
19 law. See, e.g., Rodriguez v. Phillips, 66 F.3d 470, 473 (2d
20 Cir. 1995). A “public defender does not act under color of
21 state law when performing a lawyer’s traditional functions
22 as counsel to a defendant in a criminal proceeding.” Polk
23 County v. Dodson, 454 U.S. 312, 325 (1981); accord Rodriguez
24 v. Weprin, 116 F.3d 62, 65-66 (2d Cir. 1997). To the extent
25 Brown attempts to avoid Dodson’s limitation by alleging that
26 the public defenders in his case conspired with a state
27 court judge to pursue his illegal prosecution, see Tower v.
28 Glover, 467 U.S. 914, 920 (1984), this conspiracy allegation
29 is wholly conclusory and, as such, insufficient even at the
30 pleading stage to establish that the public defenders were
31 acting under color of state law. Accordingly, the district
32 court properly dismissed Brown’s complaint.
33 We have considered each of Brown’s remaining arguments
34 and find them to be without merit. We remind Brown that he
35 has been warned by this Court that the continued filing of
36 duplicative and meritless appeals will result in the
37 imposition of a leave to file sanction, under which Brown
38 will be required to obtain permission from this Court prior
39 to filing any further submissions in this Court. See In re
40 Martin-Trigona, 9 F.3d 226, 229 (2d Cir. 1993); Sassower v.
41 Sansverie, 885 F.2d 9, 10-11 (2d Cir. 1989). For the
2
1 foregoing reasons, we AFFIRM the judgment of the district
2 court.
3 FOR THE COURT:
4 CATHERINE O’HAGAN WOLFE, CLERK
5
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3