United States District Court, Southern District of New York
May 14, 1991
HOMER AKI MATHIS ON BEHALF OF HIMSELF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
THOMAS J. BESS, AS SUPERVISING COURT STENOGRAPHER, CRIMINAL COURT, NEW YORK CITY, HAROLD J. REYNOLDS, AS CLERK OF THE APPELLATE DIVISION OF THE FIRST JUDICIAL DEPARTMENT OF NEW YORK; PHILLIP L. WEINSTEIN, AS ATTORNEY-IN-CHARGE, THE CRIMINAL APPEALS BUREAU OF THE LEGAL AID SOCIETY OF NEW YORK; GEOFFREY Q. RALLS, AS ADMINISTRATOR OF WEST PAGE 59 THE ASSIGNED COUNSEL PLAN; THOMAS COUGHLIN, III AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES; ALBERT M. ROSENBLATT, AS THE CHIEF ADMINISTRATIVE JUDGE OF THE STATE OF NEW YORK; DONALD OSHINSKY; LINDA PAZZANI; ANNA L. BOLGIER; JOEL MACHLIS; ROSE DUNN; ANTHONY MOSCATO; SANFORD ARANOW; MICHAEL FRANKEL; PETER F. ANDERSON; AND RUBEN S. SCHOFIELD, DEFENDANTS.
The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.
OPINION AND ORDER
Defendants have moved pursuant to Rule 3(j) of the Local Civil
Rules for the United States District Courts for the Southern and
Eastern Districts of New York for reargument of the Court's
Opinion and Order of March 28, 1991 on two grounds: (1) that the
Court failed to address the qualified immunity defense of the
individual stenographers and (2) that Shamel Atkins, joined as a
plaintiff sua sponte by the Court, cannot assert claims for
equitable relief because any such claims are now moot.
A motion for reargument should be directed to factual matters
or legal authority which counsel believes was present during the
motion but which the Court has overlooked. See Ashley Meadows
Farm, Inc. v. American Horse Shows Ass'n, Inc., 624 F. Supp. 856,
857 (S.D.N.Y. 1985). The matters counsel believes were overlooked
must be matters "which, had they been considered, might reasonably
have altered the result reached by the court." Adams v. United
States, 686 F. Supp. 417, 418 (S.D.N.Y. 1988). For the reasons
set forth below, defendants' motion for reargument is
denied and the Court's opinion of March 28, 1991, 761 F. Supp. 1023
is modified as indicated.
1. Qualified Immunity
In the amended complaint filed October 8, 1987 plaintiff claims
the individual stenographers violated his rights to due process
and equal protection (Count 6). In the proposed second amended
complaint, a copy of which was appended to the affidavit of
Charles Millard filed October 5, 1990, plaintiff also asserts
claims against the stenographers alleging cruel and unusual
punishment under the eighth amendment (Count 9).*fn1 The
stenographers seek protection under the doctrine of qualified
immunity. Because the issue was fully briefed by the parties and
was addressed by counsel at oral argument, reargument is
unnecessary for the Court to make a ruling.
The doctrine of qualified immunity protects government officials
sued in their personal capacities from liability for discretionary
acts provided their conduct did not violate any "clearly
established" federal statutory or constitutional rights existing
at the time. See Anderson v. Creighton, 483 U.S. 635, 639,
107 S.Ct. 3034, 3038-39, 97 L.Ed.2d 523 (1987); Davis v. Scherer,
468 U.S. 183, 190-91, 193-96, 104 S.Ct. 3012, 3017, 3018-20,
82 L.Ed.2d 139, reh'g denied, 468 U.S. 1226, 105 S.Ct. 26,
82 L.Ed.2d 919 (1984); Harlow v. Fitzgerald, 457 U.S. 800, 818,
102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Whether a federal
right was "clearly established" at the time of a challenged action
is an issue of law for the Court, see Yalkut v. Gemignani,
873 F.2d 31, 35 (2d Cir. 1989), and should be resolved at the
earliest possible stage of the litigation. See Harlow, 457 U.S.
at 818, 102 S.Ct. at 2738. If the law was not "clearly
established" at the time of the purported violation, summary
judgment dismissing the claims against the official is
appropriate. See Walentas v. Lipper, 862 F.2d 414, 422 (2d Cir.
1988), cert. denied, 490 U.S. 1021, 109 S.Ct. 1747, 104 L.Ed.2d 183
(1989). It is thus necessary to examine whether any of the
constitutional rights alleged to have been violated by the acts
or omissions of the stenographers were "clearly established" in
the period from October 1981, when Mathis filed his Notice of
Appeal, to March 1983, when his trial transcript was filed.
Plaintiff argues that it was clearly established in 1981 that
delay in the filing of appellate transcripts constituted a denial
of due process. See Ralls v. Manson, 503 F.2d 491, 499 (2d Cir.
1974) (Lumbard, J., concurring) ("At the least, due process would
require the defendants who must endure [a delayed] appeal be
admitted to bail, lest they end by serving all or most of their
sentence before the propriety of the conviction has been
determined."); Isrile v. Benjamin, No. 74 Civ. 4710 (S.D.N.Y. June
25, 1975) (refusing to dismiss § 1983 action because "an
inordinate and inexcusable delay in the state appellate process
may in and of itself amount to a denial of due process cognizable
in federal court"). However, in 1981 there was also caselaw
pointing in the opposite direction. See Roberson v. Connecticut,
501 F.2d 305, 310 (2d Cir. 1974) (Mansfield, J., concurring and
dissenting) ("denial of a speedy appeal may not amount to denial
of due process"); United States v. Farley, 292 F.2d 789, 791
(2d Cir. 1961), cert. denied, 369 U.S. 857, 82 S.Ct. 937,
8 L.Ed.2d 15 (1962) (delay in hearing appeal stemming from
two-year lag in preparation of transcripts due to death of
reporter not a denial of due process).
It would be unreasonable to conclude that Isrile v. Benjamin, a
single unpublished decision of a lower court, "clearly established"
the law of this circuit for purposes of qualified immunity. See
Hawkins v. Steingut, 829 F.2d 317, 321 (2d Cir. 1987). Moreover,
the language cited from Ralls v. Manson does not bolster
plaintiff's argument that the law was "clearly established" because
the language is not that of the majority, which declined to reach
the constitutional issues underlying plaintiff's habeas corpus
petition. See Ralls,
503 F.2d at 493. Between 1981 and 1983 there simply did not exist
an "unequivocal holding" or "definitive authority" of which
reasonable stenographers should have been aware. See Molinelli v.
Tucker, 901 F.2d 13, 16 (2d Cir. 1990). Accordingly, the
individual stenographers are entitled to qualified immunity on
plaintiff's due process claims and those claims are dismissed.
Plaintiffs' second amended complaint shall reflect the dismissal.
Defendants' briefs do not address the issue of qualified
immunity as it pertains to plaintiff's equal protection or eighth
amendment claims against the stenographers. The Court is not
aware of any authority prior to 1983 of which the reporters
should have been aware suggesting that delay in the preparation
of transcripts amounts to denial of equal protection or violation
of the eighth amendment. The absence of authority suggests that a
finding of qualified immunity on these issues is warranted.
Unless counsel for plaintiff identifies within 10 days from the
date of entry of this opinion authority which "clearly
establishes" that the challenged behavior amounted to an equal
protection or eighth amendment violation prior to 1983, those
claims against the individual stenographers will be dismissed sua
2. Atkins' Claims for Equitable Relief
Defendants argue that Atkins' claim for equitable relief was
rendered moot by the filing of an appellate brief on his behalf
by appointed counsel on March 29, 1991 and because his appeal was
argued on May 8, 1991. Finnegan Aff. ¶ 8. Defendants rely on
Judge Goettel's prior ruling in this action, Mathis v. Bess,
692 F. Supp. 248 (S.D.N.Y. 1988), that Mathis' own claims for
equitable relief were moot. However, the basis for that ruling
was that "[Mathis'] claims were rendered moot by the affirmance
of his conviction." Id. at 258. The proposed second amended
complaint, as well as the amended complaint filed October 8, 1987,
defines the plaintiff class to include:
"all presently incarcerated indigent
criminal appellants represented on appeal
either by the Legal Aid Society of New
York ("Legal Aid") or by an 18-B attorney
in the Appellate Division of the First
Judicial Department of New York and
whose appeals have either not been
perfected within one year of the filing
of a notice of appeal or not been decided
within two years from such filing."
Proposed Second Amended Complaint ¶ 9 (emphasis added). Once
the Appellate Division decided Mathis' appeal, he fit neither
definition of the plaintiff class. In contrast, Atkins falls
within the latter definition because no decision has been
rendered on the merits of his appeal. Nearly four years have
passed since Atkins filed his Notice of Appeal on July 17, 1987.
Accordingly, Atkins' claims for equitable relief are not moot at
this stage in the litigation and the facts cited by defendants on
this motion would not have altered the Court's March 28, 1991
decision. Until his appeal is decided, Atkins faces a realistic
threat of continuing appellate delay for which he may be entitled
to relief in this action.
IT IS SO ORDERED.