of the lower court on July 22, 1993. Plaintiff Burt did not appeal the order entered at the December 1, 1993 Hearing.
Plaintiff Burt filed her Amended Complaint in the immediate case on December 20, 1996. She alleges that the conduct of all Defendants violated 42 U.S.C. § 1983 and the common law, and she seeks declaratory relief (with respect to all Defendants) and damages (with respect to all Defendants except Defendant Schwartz). Plaintiff Burt claims that "improper ex parte contacts and improper communications between Judge Peter Wolf, opposing counsel Stefanie Schwartz, U.S. Marshal John Doe and other persons unknown to Plaintiff [were] part of the unlawful conspiracy . . . to deprive Plaintiff here of the federal constitutional right to due process." Amended Complaint P VII. Plaintiff Burt alleges further that Judge Wolf is not protected by judicial immunity in this matter, and that Defendants District of Columbia and Walter Ridley failed to appropriately educate, supervise, train and/or discipline the Defendant correction officers, U.S. Marshals and police officers with whom Plaintiff Burt came in contact after her incarceration on December 1, 1993.
A. Defendant Schwartz's Motion to Dismiss
1. Defendant Schwartz did not act "under color of state law"
In order to state a claim under 42 U.S.C. § 1983, a plaintiff must be able to allege and prove that the defendant "under color of any statute, ordinance, regulation, custom or usage, of any State or Territory or the District of Columbia deprived the plaintiff of any rights, privileges or immunities secured by the Constitution and law." 42 U.S.C. § 1983. The first and most fundamental element of a § 1983 claim is that the defendant acted "under the color of state law." Polk County v. Dodson, 454 U.S. 312, 70 L. Ed. 2d 509, 102 S. Ct. 445 (1981).
Courts have uniformly held that attorneys are not engaged in state action merely as a result of their participation in judicial proceedings. Polk County, supra (public defender held not to have acted under color of state law); Russell v Millsap, 781 F.2d 381 (5th Cir. 1985), cert. denied, 479 U.S. 826, 93 L. Ed. 2d 53, 107 S. Ct. 103 (1986) (privately retained defense counsel held not to have acted under color of state law); Anderson v. D.C. Public Defender Service, 756 F. Supp. 28 (D.D.C. 1991).
The D.C. Circuit has held explicitly that attorneys representing clients in court do not engage in state action and are, therefore, not subject to suit under § 1983. See, McCord v. Bailey, 204 U.S. App. D.C. 334, 636 F.2d 606 (D.C. Cir. 1980). In McCord, the circuit court affirmed the granting of summary judgment in favor of the defendant, plaintiff's former criminal defense counsel, in a case brought by the former client against his counsel under 42 U.S.C. § 1983. The circuit court noted that "lawyers may be officers of the court, but they are not officers of the state within the meaning of [Section 1983]." 636 F.2d at 608.
Defendant Schwartz was the opposing counsel in the Estate Case, representing Walk-In. Plaintiff Burt claims that Defendant Schwartz "acted in concert with Judge Wolf under color of State law to deny [her] a right to a fair trial by conspiring through ex parte communication to produce a verdict based upon extrajudicial considerations of personal animosity and financial gain . . ." Affidavit of Plaintiff in Response to Stefanie L. Schwartz's Motion to Dismiss/Motion for Summary Judgment, P13. But Defendant Schwartz appeared in Court as privately retained counsel for Estate's adversary, Walk-In. Under such circumstances, as the McCord case makes clear, it is a matter of law in this Circuit that Defendant Schwartz was not acting "under color of state law."
2. Defendant Schwartz did not conspire with a "state actor"
Federal Rule of Civil Procedure 8(a) requires a plaintiff to provide a "short and plain statement of the claim showing that the pleader is entitled to relief and a demand for judgment for the relief the pleader seeks." This Circuit subscribes to a heightened pleading standard for § 1983 cases which requires a plaintiff to provide more than bare allegations. "Unsupported allegations which fail to specify in detail the factual basis necessary to enable [defendants] intelligently to prepare their defense will not suffice to sustain a claim of governmental conspiracy to deprive appellants of their constitutional rights." Hobson v. Wilson, 237 U.S. App. D.C. 219, 737 F.2d 1, 30 (D.C. Cir. 1984), cert. denied, 470 U.S. 1084, 85 L. Ed. 2d 142, 105 S. Ct. 1843 (1985)
In this case, Plaintiff Burt advances a single, conclusory allegation of conspiracy against Defendant Schwartz.
She appears to have no direct knowledge of any conspiracy and fails to allege any facts in support of a conspiracy. She has not established a basis for Defendant Schwartz to establish a defense, as Hobson requires. Plaintiff Burt's single, unsupported allegation of a conspiracy involving Defendant Schwartz and others is so vague that it is insufficient to satisfy even the minimal pleading requirements of Fed.R.Civ.P. 8(a)(2), not to mention the heightened pleading standard required by this Circuit in Hobson.
3. Plaintiff's opposition to Defendant Schwartz's Motion to Dismiss was not timely
The local rules of this Court state that "within 11 days of the date of service or at such other time as the Court may direct, an opposing party shall serve and file a memorandum of points and authorities in opposition to [a] motion. If such a memorandum is not filed within the prescribed time, the Court may treat the motion as conceded." Rule 108(b) of the Rules of the United States District Court for the District of Columbia. Defendant Schwartz filed her Motion to Dismiss on March 3, 1997 and served the motion on Plaintiff's attorney by mail on the same date. Plaintiff Burt only filed her affidavit in response to Defendant Schwartz's Motion to Dismiss a few hours prior to argument on Defendant's motion, on April 4, 1997. Her papers were almost three weeks late.
Plaintiff Burt's opposition to Defendant Schwartz's motion to dismiss was not timely. It is fundamentally unfair to expect Defendant Schwartz to respond to opposition papers filed just hours before argument. As an attorney who is also represented by counsel in this matter, Plaintiff Burt should know to adhere more carefully to procedure. The Court will treat the facts and law argued in Defendant Schwartz's motion to dismiss as conceded by Plaintiff Burt, and such treatment provides alternate grounds for dismissal of Plaintiff Burt's claim against Defendant Schwartz.
A. Judge Wolf's Motion to Dismiss
1. Judge Wolf is protected by judicial immunity
It is well established that "government officials are entitled to some form of immunity from suits for damages." Harlow v. Fitzgerald, 457 U.S. 800, 806, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). In particular, court officers, acting within the scope of their official duties, are immune from prosecution even if the decision rendered was erroneous, malicious, or an egregious error. This broad protection afforded by the doctrine of judicial immunity is well established. See, Stump v. Sparkman, 435 U.S. 349, 355-57, 55 L. Ed. 2d 331, 98 S. Ct. 1099 (1978) (the scope of a judge's jurisdiction "must be construed broadly where the issue is the immunity of the judge"); Pierson v. Ray, 386 U.S. 547, 554, 18 L. Ed. 2d 288, 87 S. Ct. 1213 (1976); Sindram v. Circuit City, 1992 U.S. Dist. LEXIS 18857, *4 (D.D.C. 1992).
In the immediate case, Judge Wolf is protected from suit under the doctrine of judicial immunity. Plaintiff Burt has brought this action as a result of Judge Wolf's alleged conduct during the course of a matter over which he was the presiding judge. While Judge Wolf denies Plaintiff Burt's allegations that he used outrageous and abusive language during the December 1, 1993 Hearing, judicial immunity would still give him broad protection against any such claims.
Plaintiff Burt argued orally that Judge Wolf lost judicial immunity when he allegedly lost jurisdiction in the Estate Case. Any such argument has no basis in law.
2. Judge Wolf did not participate in a conspiracy
As described above, this Circuit subscribes to a heightened pleading standard for § 1983 cases, requiring a plaintiff to provide more than bare allegations of conspiratorial wrongdoing. Hobson, supra.
Plaintiff Burt advances a single, conclusory allegation of conspiracy against Judge Wolf, just as she did against Defendant Schwartz.
She again appears to have no knowledge of any conspiracy involving Judge Wolf and fails to allege any facts in support of a conspiracy. Plaintiff Burt's single, unsupported allegation, involving an ex parte conversation between Defendant Schwartz and Judge Wolf, is so vague that it is insufficient to satisfy even the minimal pleading requirements of Fed.R.Civ.P. 8(a)(2). Her allegation of conspiracy involving Judge Wolf certainly falls short of the heightened pleading standard required by Hobson.
3. Plaintiff Burt's opposition to Judge Wolf's Motion to Dismiss is untimely
As described above, the local rules of court state that opposition to a motion shall be filed "within 11 days of the date of service" of the motion and "if such a memorandum is not filed within the proscribed time, the Court may treat the motion as conceded." Rule 108(b), supra. Judge Wolf filed his motion to dismiss in the immediate case on February 20, 1997 and served the motion on Plaintiff's attorney by mail on the same date. Plaintiff Burt only filed her affidavit in response to Judge Wolf's Motion to Dismiss a few hours prior to argument on Defendant's motion, on April 4, 1997. Her papers were over thirty days late.
Plaintiff Burt's opposition to Judge Wolf's motion to dismiss was not timely and it is fundamentally unfair to expect Judge Wolf to respond to opposition papers filed just hours before argument. As the Court has suggested, an attorney such as Plaintiff Burt who is also represented by counsel in this matter should adhere more carefully to procedure. The Court will treat the facts and law argued in Judge Wolf's motion to dismiss as conceded by Plaintiff Burt. The untimeliness of Plaintiff Burt's opposition to Judge Wolf's motion to dismiss establishes an alternate grounds for granting the motion.
Defendant Schwartz's motion to dismiss will be granted since, as a private attorney, she did not act "under color of state law" and because Plaintiff Burt failed to allege with sufficient specificity that she conspired with a "state actor." Judge Wolf's motion to dismiss will be granted due to judicial immunity and also because Plaintiff Burt failed to allege any conspiracy with sufficient specificity. The complaint against Walter Ridley, former D.C. Chief of Corrections, will be dismissed by consent of the parties. An appropriate order is attached hereto.
United States District Judge
This matter is before the Court on the motions to dismiss the immediate case submitted by two of the defendants, Ms. Stefanie L. Schwartz and the Honorable Peter H. Wolf. The Court has considered the motions and the opposition thereto and heard argument on April 4, 1997. For the reasons cited in the accompanying Memorandum Opinion, it is hereby
ORDERED that Ms. Schwartz's motion to dismiss is GRANTED ; and it is
FURTHER ORDERED that Judge Wolf's motion to dismiss is GRANTED ; and it is
FURTHER ORDERED that Plaintiff's complaint against Walter Ridley is hereby DISMISSED by consent of the parties.
United States District Judge