plaintiffs' eighth amendment claim against the individual
stenographers is dismissed.
As for plaintiffs' equal protection claim against the
individual stenographers, the doctrine of qualified immunity
protects government officials sued in their personal capacities
from liability for civil damages for discretionary acts provided
the challenged conduct did not violate "clearly established
statutory or constitutional rights of which a reasonable person
would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102
S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). See also Anderson v.
Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 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 (1984), reh'g denied,
468 U.S. 1226, 105 S.Ct. 26, 82 L.Ed.2d 919 (1984). The question
here is whether it was "clearly established" in the period from
October 1981, when Mathis filed his Notice of Appeal, to March
1983, when his trial transcript was filed, that delay in the
preparation of transcripts violated an indigent appellant's equal
protection rights. If the law was not "clearly established" at
that time, summary judgment dismissing the equal protection claim
against the stenographers 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).
There is some disagreement in this circuit as to the quantum of
judicial authority sufficient to support a finding that a federal
right was "clearly established." Compare Francis v. Coughlin,
891 F.2d 43, 46 (2d Cir. 1989) ("the court must determine whether
the decisional law of the Supreme Court or the appropriate
circuit court has clearly established the right in question")
with Weber v. Dell, 804 F.2d 796, 803 (2d Cir. 1986) (three
decisions by other circuits plus supportive language in several
Second Circuit decisions sufficient), cert. denied,
483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987). In this action it
makes no difference which test is applied since the result is the
same under both.
Plaintiffs base their equal protection claim on the theory that
the reimbursement system for court transcripts created incentives
for stenographers to prepare transcripts for paying parties ahead
of transcripts provided at no cost to indigent persons.
Plaintiffs cite numerous cases standing for the proposition that
once a state grants the right to an appeal, the equal protection
clause forbids the state from discriminating against indigent
persons in the process of that appeal. See, e.g., Griffin v.
Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1955).
However, the most that these cases hold is that indigent
appellants are constitutionally entitled to obtain free
transcripts. They leave unanswered the question of whether, and
more importantly, at what point delay in the preparation of
transcripts for indigent appellants amounts to a "denial" of free
transcripts. To defeat qualified immunity, the rights that
plaintiffs assert were violated must have been clearly
established in a "particularized sense." P.C. v. McLaughlin,
913 F.2d 1033, 1039 (2d Cir. 1990). Plaintiff has not cited any
legal authority of which the individual stenographers should
reasonably have been aware clearly establishing in a
particularized sense the point at which delay in providing
transcripts becomes constitutionally impermissible. The
stipulation entered in Isrile v. Benjamin, No. 74 Civ. 4710
(S.D.N.Y. June 14, 1979), the case relied upon by plaintiffs, did
not prohibit delay in excess of six months but instead merely
required an explanation for it. Pl. Second Mem. in Opp., Exh. A
at 4. Absent a specific prohibition in the caselaw, an individual
court stenographer could not reasonably have been expected to be
aware in 1981-83 that a fifteen-month delay in the preparation of
Mathis' transcript — as opposed to a ten-, twelve- or
twenty-month delay — denied an indigent appellant like Mathis
equal protection under the laws. Under these circumstances, the
doctrine of qualified immunity protects the stenographers'
discretion. Accordingly, plaintiffs' equal protection claim
against the individual
stenographers is dismissed.*fn2
IT IS SO ORDERED.