immunity on court reporters, id. at 2172.
In light of Antoine, this court declines to grant defendants here summary judgment on the ground that they are absolutely immune from suit. There is at least a question of fact regarding whether the function of referring a pro se motion to an applicant's attorney of record involves any exercise of discretion, and in addition, the court is not aware of any common law tradition of according absolute immunity to court clerks. It therefore is necessary to consider whether defendants are entitled to summary judgment on the ground that they are qualifiedly immune from plaintiff's claim for money damages. It bears noting that "because the defense of qualified immunity is designed to relieve government officials of the burdens of litigation as well as of the threat of damages, summary judgment is encouraged as a device for disposing of claims barred by qualified immunity." Gan, 996 F.2d at 532.
Under the doctrine of qualified immunity, an official is liable for damages only where his or her conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982); see also Buckley v. Fitzsimmons, 125 L. Ed. 2d 209, U.S. , 113 S. Ct. 2606, 2613 (1993). The availability of the defense depends on the "'objective legal reasonableness' of the allegedly unlawful official action, 'assessed in light of the legal rules that were clearly established at the time it was taken.'" Gan, 996 F.2d at 531 (quoting Anderson v. Creighton, 483 U.S. 635, 639, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987) (internal quotations and citations omitted)). The Supreme Court has noted that "as the qualified immunity defense has evolved, it provides ample support to all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986).
Here, plaintiff asserts that defendants' claim for qualified immunity should be denied because defendants "knew or reasonably should have known that the action they took within their sphere of official responsibility would violate the fundamental constitutional and statutory rights of the plaintiff." Affidavit of Victor Woodard, Sworn to July 18, 1994 ("Woodard Aff.") P 5 n.5. Based on a liberal reading of plaintiff's papers, the court construes the "rights" plaintiff claims were denied him as the right of access to the court to present a petition for a writ of habeas corpus, and the right to proceed pro se while being represented by counsel.
With respect to plaintiff's claim against defendants for denial of access to the court, plaintiff largely relies on § 7003(c) of the N.Y. Civ. Prac. L. & R. to allege that he is entitled to damages for defendants' "dismissal" of his pro se petition. That section describes generally when a writ of habeas corpus shall issue, and provides for damages of $ 1,000 from each judge or member of the court who violates the section in refusing to issue a writ.
A facial review of this section readily reveals that it does not provide a cause of action for the type of claim alleged here, and moreover, the defendants from whom plaintiff seeks damages are neither judges nor members of the court; thus, plaintiff had no clearly established right under § 7003(c) at the time his pro se petition was filed.
As to plaintiff's constitutional right of access to the court, it is well-settled that the due process clause of the Fourteenth Amendment protects an individual's right of access to the civil courts, e.g., Chambers v. Baltimore & Ohio R.R., 207 U.S. 142, 52 L. Ed. 143, 28 S. Ct. 34 (1907); Boddie v. Connecticut, 401 U.S. 371, 28 L. Ed. 2d 113, 91 S. Ct. 780 (1971), and a deprivation of this right is actionable under § 1983. E.g., Abdul-Akbar v. Watson, 901 F.2d 329 (3d Cir. 1990). However, even though the "contours of the plaintiff's federal rights" may have been clearly delineated at the time of the complained-of acts, summary judgment may still be appropriate if "'it was objectively reasonable for [the official] to believe that his acts did not violate those rights.'" Gan, 996 F.2d at 532 (quoting Robison v. Via, 821 F.2d 913, 921 (1987)). In this case, it was objectively reasonable for defendants to believe that their act of forwarding Woodard's pro se motion to his counsel of record did not violate Woodard's right of access to the court: in the first place, defendants did not "dismiss" his petition, as plaintiff claims; in the second place, forwarding the petition to plaintiff's attorney would seem to be an objectively reasonable means of ensuring plaintiff's access to the court;
and finally, in forwarding the petition, defendant Toma was acting pursuant to a state court policy which he is charged with implementing.
With respect to plaintiff's claim for violation of his right to proceed pro se while being represented by counsel, it is axiomatic that "the right to self-representation and the assistance of counsel are separate rights depicted on the opposite side of the same Sixth Amendment coin hence to choose one obviously means to forego the other." United States v. Purnett, 910 F.2d 51, 54 (2d Cir. 1990); see also United States v. Mitchell, 137 F.2d 1006, 1010 (2d Cir. 1943) (rights of self-representation and representation by counsel "cannot both be exercised at the same time"); but cf. People v. Renaud, 145 A.D.2d 367, 368, 535 N.Y.S.2d 985, 987-88 (1st Dep't 1988) ("The court . . . may not simply disregard a motion filed directly by the defendant because there is an attorney on the scene. A motion, whether made by counsel or a pro se defendant, mandates a ruling or else the court must clearly state its reasons for refusing to decide the motion."). Hence plaintiff here had no clearly established right to file his petition pro se while the record indicated that he was represented by counsel in a related criminal proceeding. See Toma Aff. P 3; accord Murph v. Parisi, No. 78 Civ. 270 (E.D.N.Y. June 6, 1978) (Nickerson, J.) (finding that clerk of court was entitled to qualified immunity for, inter alia, forwarding the plaintiff's pro se motion to counsel). Accordingly, defendants are entitled to summary judgment dismissing plaintiff's claims against them for money damages based on the doctrine of qualified immunity.
Finally, to the extent the Complaint seeks to assert individual-capacity claims against Mennella, it is deficient for the additional reason that a supervisory official cannot be held liable under § 1983 on a theory of respondeat superior. Gan, 996 F.2d at 536 (citing Monell v. Department of Social Servs., 436 U.S. 658, 691, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978); East Coast Novelty Co., Inc. v. City of N.Y., 809 F. Supp. 285, 298-99 (S.D.N.Y. 1992). Because Mennella has alleged that he "was not personally involved in the decision to deliver plaintiff's pro se motion to George Lewis, Esq." and that he did not create the challenged policy, Mennella Aff. PP 2-3, and plaintiff has not controverted these allegations, plaintiff's damages claim against Mennella must fail.
III. The Remaining Claims
The immunity doctrines do not bar this court from considering plaintiff's claim that he is entitled to a declaratory judgment that defendants' actions and policies violated his constitutional rights, Edelman v. Jordan, 415 U.S. 651, 664, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974); Pulliam v. Allen, 466 U.S. 522, 541-42, 80 L. Ed. 2d 565, 104 S. Ct. 1970 (1984); accordingly, the court turns to defendants' remaining arguments as they relate to plaintiff's request for a declaratory judgment and for application of "the applicable law to the full merits of the plaintiff's case."
With respect to plaintiff's claim for declaratory relief, the court finds that defendants are entitled to summary judgment on this claim under principles of comity and federalism. In Wallace v. Kern, 481 F.2d 621, 622 (2d Cir. 1973), cert. denied, 414 U.S. 1135, 38 L. Ed. 2d 761, 94 S. Ct. 879 (1974), the Second Circuit reviewed a district court decision which, inter alia, ordered the Clerk of the Criminal Term of the Supreme Court, Kings County, "to place on the court's calendar all pro se motions filed by inmates of the Brooklyn House of Detention." The Second Circuit reversed this order, holding that "'under the principles known as comity a federal district court has no power to intervene in the internal procedures of the state courts.'" Id. (citation omitted). These same principles require this court to decline to award plaintiff the declaratory relief he seeks.
Plaintiff also asks the court to "apply the applicable law to the full merits" of his case, which defendants construe as a request that this court order his release. Reading the pro se Complaint generously, the court agrees that it can be interpreted to include such a request. As defendants concede, this court has held that the refusal to consider a petitioner's pro se application satisfies the exhaustion requirement of 28 U.S.C. § 2254(b). See United States ex rel. Napoli v. State of N.Y., 379 F. Supp. 603, 605 (E.D.N.Y. 1974). Defendants nonetheless contend that this court cannot entertain plaintiff's habeas action because it does not have jurisdiction over plaintiff's present custodian, as it must to adjudicate the petition. See Billiteri v. United States Bd. of Parole, 541 F.2d 938, 948 (2d Cir. 1976); see also Peon v. Thornburgh, 765 F. Supp. 155, 156 (S.D.N.Y. 1991) ("A petition for habeas corpus must be brought against the petitioner's custodian, and the court considering the petition must have jurisdiction over that custodian."). Defendants are correct that because plaintiff has not named his custodian as a defendant in this action, but rather only has named Mennella and Toma -- who obviously do not have custody of him -- this court lacks jurisdiction to entertain plaintiff's petition for a writ of habeas corpus. Accordingly, the court cannot afford plaintiff the relief he seeks.
For the foregoing reasons, defendants' motion for summary judgment is hereby granted.
Dated: Brooklyn, New York
August 25, 1994
I. LEO GLASSER, U.S.D.J.