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February 6, 1980

FRIZELL W. SELDON, Plaintiff, against NORMAN GOODMAN, County Clerk and Clerk of the Supreme Court and JOSEPH J. CHRISTIAN, Chairman of the New York City Housing Authority, Defendants.

The opinion of the court was delivered by: CANNELLA


On the motion of defendant Goodman, for summary judgment, and on the motion of defendant Christian, to dismiss the complaint, the Court dismisses the complaint against both defendants for want of a substantial federal question. Fed.R.Civ.P. 12(b)(1).


 The factual allegations of the complaint are presumed to be true. On September 15, 1975, the New York City Housing Authority, of which the defendant Christian is Chairman, discharged plaintiff from his employment as a Housing Authority Police Officer. This discharge was based upon a recommendation by a hearing officer who found plaintiff guilty of "incompetency and misconduct." Although plaintiff claims that there was no evidence to substantiate some of the charges against him, he makes no claim of denial of procedural due process by the hearing officer.

 On December 3, 1975, plaintiff commenced a special proceeding pursuant to Article 78 of the New York Civil Practice Law and Rules ("CPLR") in the New York Supreme Court, New York County, to compel the Housing Authority to reinstate him. Then, on May 18, 1976, the Supreme Court transferred the special proceeding to the Appellate Division, First Department, pursuant to section 7804(g) of the CPLR. *fn1" The proceeding, however, was never transferred, and therein lies the essence of this complaint.

 Pursuant to the rules of the Appellate Division, First Department, the petitioner in a proceeding transferred pursuant to section 7804(g) must "file the record or cause the same to be filed with the clerk of (the) court within 30 days after entry of the order of transference." 22 N.Y.C.R.R. § 600.7(b) (1978). This was not done, however, because, according to the complaint, the "defendant, Norman Goodman, New York County Clerk and Clerk of the Supreme Court for the County of New York negligently and carelessly did lose, misplace or misfile, the Court file" for plaintiff's special proceeding. Complaint P 9 (filed June 1, 1979).

 Although plaintiff's counsel claims to have made "vigorous and persistent efforts to locate said missing court file," id. P 10, he made no formal application until December 12, 1977, when he moved for an order compelling the Housing Authority to furnish him a copy of the hearing transcript, id. P 11. After the Housing Authority furnished the transcript voluntarily, plaintiff moved in the Supreme Court "sometime in 1978," see id. P 12, to resettle the record, and this motion was granted on July 19, 1978. Plaintiff then moved in the Appellate Division for an extension of time to perfect his special proceeding, but the motion was denied on September 26, 1978. According to the defendant Goodman, the Appellate Division granted the Housing Authority's cross-motion to dismiss the proceeding. Plaintiff's motion to reargue was thereafter denied on February 22, 1979.

 Plaintiff then filed the instant complaint on June 1, 1979, alleging that he "has been deprived of his right to State Judicial Review and to resulting restoration of his job . . . by the negligence and carelessness of Defendant, Norman Goodman, acting under color of (state law) . . . ." Id. P 15. Plaintiff further alleges that "the negligence and carelessness of defendant, Norman Goodman, a State Officer, is attributed to defendant, New York Housing Authority, a State instrumentality . . . ." Id. P 16. *fn2" Plaintiff characterizes his cause of action as one based upon 42 U.S.C. § 1983, suggesting that jurisdiction exists under 28 U.S.C. § 1331(a).


 Plaintiff alleges no act or conduct by the defendant Goodman that was done maliciously, intentionally, recklessly or in bad faith. Indeed, all that plaintiff has alleged is negligence or carelessness. Consequently, even if a state court clerk is entitled to only qualified immunity from suit under section 1983, see Marty's Adult World of New Britain, Inc. v. Guida, 453 F. Supp. 810, 814-17 (D.Conn.1978), the defendant Goodman is immune in this case, because the complaint alleges no act or conduct that was not in good faith. See, e.g., Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1975).

 An even greater obstacle to plaintiff's complaint is its failure to allege a deprivation of a constitutional right. Plaintiff asserts that he has a constitutional right to "access to the Courts and judicial review" of his dismissal. Plaintiff's Memorandum at 2 (filed December 11, 1979). This, however, is something of an overstatement. What he at most has is a right not to be deprived by the state of such access and review without due process of law. This distinction was recently drawn by the Supreme Court in Baker v. McCollan, 443 U.S. 137, 99 S. Ct. 2689, 61 L. Ed. 2d 433 (1979), where the Court held that a person mistakenly arrested pursuant to a facially valid warrant did not have a federal cause of action against the arresting officer. The Court rejected the contention that the Constitution establishes an unqualified right to liberty:

The Fourteenth Amendment does not protect against all deprivations of liberty. It protects only against deprivations of liberty accomplished "without due process of law."

 Id. at 146, 99 S. Ct. at 2695.

 The Court expressly held, over the dissent of Mr. Justice Stevens, in which Justices Brennan and Marshall joined, that there is no constitutional requirement that an arresting officer "independently investigate every claim of innocence," or follow certain procedures to prevent mistaken identification. *fn3" Consequently, a failure to follow such procedures does not ...

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