This action brought under 42 U.S.C. §§ 1983 and 1985 and 28 U.S.C. § 1343(3) and (4) involves alleged non-compliance with the terms of an elaborate agreement allegedly worked out between plaintiffs, who are now incarcerated at Sing Sing Prison, and defendants, all of whom are alleged to have been either directly or indirectly connected with the agreement.
On February 17, 1969, when plaintiffs were scheduled to appear for trial in the New York Supreme Court for Richmond County on charges of robbery and grand larceny, a robbery was сommitted in Queens County in which 2,000 pieces of jewelry valued at approximately $4,000,-000 were taken from the Provident Loan Society of New York (“Provident”). On June 11, 1969, a grand jury in Queens County indicted plaintiffs for the Provident robbery. On June 27, 1969, plaintiffs were convicted by a jury in Richmond County of robbery in the first dedegree, convictions based on incidents unrelated to the Provident robbery. Plaintiff Palermo was sentenced to imprisonment of 25 years on the robbery count and 7 years on the larceny charge; plaintiff Saltzman was sentеnced to 15 years and 5 years on the corresponding counts. All of the sentences were to run concurrently.
In an effort to recover the jewelry taken in the Provident robbery, negotiations were conducted, beginning during the Richmond County trial, between the District Attorney for Queens County, Thomas J. Mackell (“Mackell”), and plaintiffs who were represented by their attorney, Jacob R. Esveroff (“Esveroff”). It also appears that a representative of the New York City Police Department, Mr. John O’Connors (“O’Connors”), and an attorney for Provident, Norman Rein (“Rein”), were present at and participated in the negotiations to some extent. After some deliberation, plaintiffs agreed to procure the return of the proceeds of the Provident robbery and to plead guilty to the charges against them arising from it. Mackell agreed to appear at plaintiffs’ sentencing on the foregoing guilty pleas in Queens County Court, to intercede on behalf of plaintiffs with the New York State Parole Board (“Pаrole Board”) in an effort to secure plaintiffs’ release on parole after 18 months of their Richmond County sentences had been served, to move to dismiss an assault charge then pending against Palermo in Queens County, and to request the District Attorney of Oneida County to drop charges against plaintiffs relating to possession of a stolen automobile. Mackell rejected plaintiffs’ request for a reward of up to $100,-000 for return of the jewelry, but the other elements of the agreement were substantially as requested by plaintiffs through their attorney.
On or about October 24, 1969, most of the proceeds of the Provident robbery were returned to Mackell’s representatives. On April 16, 1970, plaintiffs pleaded guilty to the crime of robbery in the third degree in Supreme Court, Queens County, in connection with the Provident robbery. On April 24, 1970, Mackell wrote to the Parole Board requesting consideration for plaintiffs on their Richmond County sentences. This letter appears to have been unavailing, however, as the Parole Board denied plaintiffs’ application for release on parole. Mackell also communicated with the Oneida County District Attorney regarding the charge of possession of a stolen motor vehicle. That charge is still pending against plaintiffs. On September 30, 1970, an Assistant District Attorney appeared in Queens County Supreme Court, in which plaintiffs were to be sentenced upon their guilty pleas, to inform the sentencing judge that the proceeds of the robbery had been returned. At that time, Palermo moved to withdraw his plea of guilty because he had not been paroled as scheduled on August 17, 1970. The sentencing of both plaintiffs for their part in the Provident robbery was adjourned pending the determination of Palermo’s motion. Hearings on the motion are now in progress in Queens County Supreme Court.
*481 On August 25, 1970, plaintiffs commenced this action against numerous defendants alleging non-compliance with the agreement described above. They now seek unconditional release from custody, an injunction against the initiation or continuance of further prosecutions against them, an order for return of the jewelry which they returned to Provident, damages in the amount of $1,000,-000 plus $25 for each day spent in custody beyond August 17, 1970, the date at which they allege they were to be released pursuant to the agreement, and reimbursement for the costs of prosecuting the action.
We deal now with motions made on behalf of each of the 22 defendants to dismiss the action. We shall deal with the motions of the dеfendants as they fall into the following categories, and in the following order: (1) the State of New York and the City of New York, (2) New York Supreme Court Justices Kern and Farrell, (3) Mayor Lindsay, former Police Commissioner Leary, and Governor Rockefeller, (4) attorneys Esveroff, Rein, and the firm of Rein, Mound & Cotton, (5) Provident, (6) defendant Darrigrand, Oneida County District Attorney, (7) various Parole Board officials, (8) various District Attorneys and their assistants in Richmond and Queens Counties, and (9) O’Connor.
Section 1983 provides a federal remedy for the actions of “persons.” It is settled law that a state is not a person within the meaning of this section. Fear v. Commonwealth of Pennsylvania,
As to the defendant City of New York, the mandate of the Supreme Court is equally clear. “The response of the Congress to the proposal to make municipalities liable for certain actions being brought within federal purview by [§ 1983] was so antagonistiс that we cannot believe that the word ‘person’ was used in this particular Act to include them.” Monroe v. Pape,
We next consider the allegations concerning Michael Kern and Peter T. Farrell, Justices of the Supreme Court of the State of New York. These allegations relate to the part which Justice Kern played in negotiations regarding the Provident robbery, consisting of discussions before trial in Richmond County, during trial, and prior to sentencing there. Compl. ¶ 5(a) and (b). Plaintiffs allege that references to those conferences are to be found in the trial minutes of the Richmond County case, Compl. ¶ 5(c), which are not now before us. It *482 is alleged that plaintiffs were offered a maximum sentence of five years in the Richmond County matter if they would arrange for the return of the jewels, Compl. ¶ 5(d), and that plaintiffs were told that they would never be paroled if they did not arrange for thе return of the jewels, Compl. ¶ 5(d), but these assertions are not attributed directly to either Judge Kern or Judge Farrell. The complaint, indeed, does not even allege that Judge Farrell participated in the plea negotiations.
Section 1983 did not abolish the common law immunity of judges.
“It is a judge’s duty to decide all eases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have tо fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation.” Pierson v. Ray,386 U.S. 547 , 554,87 S.Ct. 1213 , 1218,18 L.Ed.2d 288 (1967).
A judge is immune from suits, at least those seeking damages and not injunctive relief, cf. Law Students Civil Rights Research Council, Inc. v. Wadmond,
Since the criminal proceedings brought against plaintiffs in Richmond and Queens Counties were clearly within the jurisdiction of Justices Kern and Farrell, we need deal only with the question of whether the actions of these judges, assuming for purposes of the motion to dismiss that the allegations concerning their actions are true, departed sufficiently from the judicial role to justify depriving them of immunity, cf. Brown v. Dunne,
The Canons of Judicial Ethics, Canon 4 (“Avoidance of Impropriety”), has been construed to caution strongly against the direct involvement of judges in arranging guilty pleas:
“A judge should not be a party to- advance arrangements for the determination of sentence, whether as a result of a guilty plea or a finding of guilt based on proof.” American Bar Association, Opinions on Professional Ethics 202 (1967) (Informal Opinion No. 779).
Cf. United States ex rel. Elksnis v. Gilligan,
There has been an increasing tendency, however, toward official recognition of the fact that plea negotiations between the prosecuting attorney and defense counsel are widespread and that they can facilitate the administration of justice under certain conditions. See, e. g., American Bar Association Project on Minimum Standards for Criminal Justice, Pleas of Guilty, Tentative Draft, pp. 10-12 (Part III, Plea Discussions and Plea Agreements). For instance, The Advisory Committee on Federal Rules of Criminal Procedure has recently recommended the amendment of Rule 11, F.R.Cr.P. to permit the court to accept or reject a negotiated plea presented to it by counsel, provided the agreement is spread on the record and the court reserves the right to reconsider its acceptance’ if it later finds’ that the pre-sentence report contains information inconsistent with that disclosed by the parties at the time of the plea. In the latter event the defendant’s not guilty plea is reinstated and the record of the plea negotiation and presentation is inadmissible at trial.
*483 Some states would go even further in permitting the court to become involved in plea agreements. A revised rule recently proposed to the Supreme Court of Illinois would, for instance, permit the trial judge to participate in discussion of the plea agreement at the request of the defendant, Proposed Rule 402(d) (1) (“Pleas of Guilty”). The Illinois Committee Comments to the Proposed Rule, dated January 16, 1970, indicatе that the Committee believes that there is no reason for prohibiting such participation when both the defendant and the judge consent.
In light of the potential which plea agreements have for enhancing the efficiency of the criminal process, a particularly important consideration in a time of long dockets and serious delays of trial, we cannot say that participation of a trial judge in plea negotiations is a
per se
departure from the judicial role in which a judge is immune from suit, cf. United States ex rel. Rosa v. Follette,
Plaintiffs further allege (1) that as Mayor of the City of New York and former Commissioner of its Police Department defendants Lindsay and Leary are vicariously liable under § 1983 for the actions of their agent, police officer O’Connors, Compl. ¶ 5, and (2) that plaintiffs were told that Lindsay, Leary, and defendant Rockefeller were members of the Board of Directors of Provident and had sanctioned the agreement, “leading plaintiffs to believe that contract was valid” [Compl. ¶ 5(h)]. Rockefeller’s alleged connection with Provident appears to be plaintiffs’ only claim for relief against him. In the absence of any allegation that these three defendants took affirmative action of any kind in connection with the agreement, plaintiffs’ contentions, apparently founded solely on the theory of respondeat superior are too thin to sustain a claim for relief against Lindsay, Leary, and Rockefellеr. Salazer v. Dowd,
Esveroff was counsel to Palermo but not to Saltzman in the Richmond County trial. His alleged association with the negotiations leading to the agreement was limited to discussions of the Queens County robbery with representatives of the Police Department, the Richmond County District Attorney’s office, and Justice Kern [Compl. ¶ 5(a)]. Palermo discharged him as counsel after Palermo had been convicted in the Richmond County trial but before he was sentenced there. (Esveroff Aff. p. 1). Rein and his firm represеnted Provident in the negotiations which led to the agreement (Bobick Aff. p. 1). Provident was undisputedly the victim of the robbery.
Federal jurisdiction under 42 U.S.C. § 1983 does not extend to all controversies between individual citizens, but only to deprivations of constitutional rights arising from the actions of persons acting under color of state law, Monroe v. Pape,
District Attorney Darrigrand of Oneida County is not alleged to have entered into any agreement with plaintiffs regarding the criminal charge that was pending against them in his county; it is only alleged that certain other defendants would see to it that the charge was dropped (Bobick Aff. p. 1). Darrigrand’s failure to drop the charge thus does not give plaintiffs a claim for relief against him, and as to him, the complaint is dismissed.
The portions of the complaint relating to defendants Oswald, Jones, Doe and Roe (the latter two being members of the Parole Board whose names are unknown to plaintiffs) are as follows:
“g) Plaintiffs were made to believe by Edward Bobick, Esq., and by certain other Respondents that conversations had been held between those Respondents and Respondents Oswald, Jones and other members of the New York State Parole Commission and that said Oswald, et al, stated that Plaintiffs would never be paroled at any time, in any case in New York State unless alleged рroceeds of the alleged Queens crime were recovered and further, that if proceeds were recovered through Plaintiffs efforts, Plaintiffs would be paroled after serving 18 months of their sentence.” (Compl. ¶ 5(g))
“9) That contract was not fulfilled by Respondents in that Plaintiffs were not released on parole on 17 August 1970 which was the termination date of the 18 month period.” (Compl. ¶ 9)
Members of the Parole Board act under color of state law and thus may be sued under § 1983 for deprivations of constitutionаl rights. Although we recognize that in the usual case their decisions require a special competence quite unlike that appropriate in an adversary setting, Menechino v. Oswald,
In this case, tаking plaintiffs allegations as true, we find that they have stated a claim upon which, assuming it were proved, relief could be granted under § 1983 against the Parole Board. They allege that, prior to entering into an agreement pursuant to which they entered guilty pleas and gave up their right to a jury trial, direct promises were made by the Parole Board to their attorney that, in exchange for plaintiffs’ pleas and for the return of stolen property, they would be released on parole after sеrving 18 months of their sentences. Following this alleged agreement, the Parole Board refused to grant plaintiffs release on parole at the promised time. Proof of such facts would establish a violation of plaintiffs’ Due Process rights. While a plea of guilty, if voluntarily and knowingly made, may not be challenged on grounds which relate to the motivation for the plea, North Carolina v. Alford,
Turning to the defendants who were intimately involved in the negotiations leading up to the agreement— District Attorneys for Queens and Richmond Counties (Mackell and Braistead) and Various Assistant District Attorneys (Ludwig, Dilorio, Demaskos)— plaintiffs claim generally that they failed to fulfill the plea agreement. Ordinarily, prosecutors acting in their official capacity are entitled to immunity from civil suits, including actions under the Civil Rights Act, based on non-malicious conduct in their official capacities and within their jurisdiction. Scolnick v. Lefkowitz,
As a member of the Police Department, defendant O’Connors, if the charges against him were proved, could be held liablе under § 1983 for violation of plaintiffs’ constitutional rights, Monroe v. Pape, supra, and he is not protected by the immunity extended to members of the judiciary and public prosecutors.
Plaintiffs have painted their demands for relief with the same broad brush that was used in naming defendants: they seek release from prison, an injunction against further state prosecution (at least as to offenses and charges which were involved in the agreement), return to them of the jewels, damages, etc. In effect, they are asking for thе benefits of the agreement which they *486 have not received (i. e., specific performance) or recovery of the rights and property which they gave up in hopes of obtaining those benefits (i. e., recision). Because issues as to the propriety of certain forms of relief were raised in defendants’ briefs, we now take up the elements of relief requested in the complaint.
We do not believe that plaintiffs are entitled to return of the jewelry under any circumstances. While the complaint refers repeatedly to the Provident robbery as an “alleged” robbery [Compl. ¶¶ 4, 5(b), 5(e), 5(f), and 5(j)], plaintiffs admit that at the very least they made contact with “the actual robbers” in order to secure return of the jewelry to Provident [Compl. ¶ 6], Thus we give no weight to the contradictory assertion found in the following paragraph [Compl. ¶ 7] that ownership of the jewelry was vested in plaintiffs because proof was never made in court that the jewelry had been stolen. As stolen goods, the jewels were not the property of plaintiffs, and under New York law they are not entitled to employ legal process to recover them, McConnell v. Commonwealth Pictures Corp.,
In light of the foregoing, a complete recision, leaving the parties in the
status quo ante
which prevailed before the agreement, is not possible. Assuming plaintiffs proved their claims, we would be faced with the question of whether they should be limited to partial recision (that is, withdrawal of their guilty plea and perhaps damages) or, in view of the unavailability of complete recision, whether they would be entitled to an order directing the remaining defendants to comply fully with their part of the agreement. In the latter case, as defendants point out, we would be forced to consider whether adequate reason existed for abandoning the traditional reluctance of federal courts to enjoin pending state prosecution, compare Douglas v. City of Jeanette,
On the eve of our filing the foregoing we received a letter dated January 4, 1971, from plaintiff Palermo indicating doubt as to the sufficiency of his complaint and requesting a 30 to 60 day continuance to enable him to amend or modify his claims. Since defendants’ motions to dismiss were submitted for disposition more than two months ago and it appears that no valid claim for relief under § 1983 could in any event be stated against certain defendants, we grant the motions to dismiss as to defendants State of New York, City of New York, Kern, Farrell, Lindsay, Leary, Rockefeller, Esveroff, Rein, Rein, Mound & Cotton, Provident, Darrigrand, Mackell, Ludwig, Demaskos, Braistead and DiIorio without prejudice to plaintiffs’ filing an amended complaint within 30 days against such defendants, if any, as to whom plaintiffs are advised, after consultation with their legal counsel, that a valid claim for relief can be stated. The motions of defendants Oswald, Jones, Doe, Roe and O’Connors to dismiss the claims against them are hereby denied.
It is so ordered.