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WOODARD v. MENNELLA

August 25, 1994

VICTOR WOODARD, Plaintiff,
v.
THOMAS L. MENNELLA, Chief Clerk of the Supreme Court, Kings County; and PAUL TIMA, Motion Clerk of the Supreme Court, Kings County, Defendants.



The opinion of the court was delivered by: I. LEO GLASSER

 GLASSER, United States District Judge:

 Plaintiff pro se Victor Woodard commenced this action pursuant to 42 U.S.C. § 1983 by filing a Complaint on June 21, 1993. As the basis for his Complaint, plaintiff alleges that defendants Thomas L. Mennella, Chief Clerk of the Supreme Court, Kings County ("Mennella") and Paul Tima, Motion Clerk of the Supreme Court, Kings County ("Toma") *fn1" violated his rights by failing to file his pro se motion for a writ of habeas corpus because he was represented by counsel in a pending state court criminal action. Defendants now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, their motion is granted.

 FACTS

 On October 22, 1992, Woodard was arrested and charged with attempted burglary in the second degree, possession of burglary tools and criminal mischief in the fourth degree. Woodard thereafter was ordered held "for the action of a grand jury proceeding." Pl.'s Answer to Defs.' Interrogs. P 7. On October 26, 1992, a grand jury convened in the State of New York, Kings County, returned an indictment charging Woodard with attempted burglary in the second degree and possession of burglary tools. See People v. Woodard, Kings Co. Indictment No. 12320/92. While defendants allege that plaintiff was represented by George Lewis, Esq. and the Legal Aid Society during the entirety of this criminal action, Defs.' 3(g) Statement P 8, plaintiff alleges that he was represented by Lewis during the arraignment, and that the court assigned Spiro L. Ferris, Esq. as his "legal advisor" and granted him permission to proceed pro se at pre-trial proceedings and at trial. Pl.'s Answer to Defs.' Interrogs. P 7 nn.1, 2. *fn2"

 Plaintiff alleges that on November 14, 1992, he sent a pro se application for a writ of habeas corpus from the Brooklyn Correctional Facility to the Supreme Court of the State of New York, Kings County (the "state court"). *fn3" Compl. p. 3. According to plaintiff, upon receiving the application, defendant Toma "without authorization from the Court and without a judge's mandatory initiative, unconstitutionally dismissed the plaintiff's pro se application for a writ of habeas corpus and forwarded it to the plaintiff's Court appointed attorney[,]" thereby "denying and obstructing the plaintiff's constitutional right to petition to the Court for a writ of habeas corpus." Compl. pp. 2-3 & n.1. Toma's action was memorialized in a letter dated November 25, 1992, in which Toma notified plaintiff that "this court will not entertain pro se applications by defendants who have counsel. Your application has been forwarded to your attorney[.]" Compl. Ex. G. Lewis, the attorney -- who has not been named as a party to this action -- apparently never resubmitted plaintiff's pro se application or advised the state court that he no longer was representing plaintiff. *fn4" Compl. p. 4; Defs.' 3(g) Statement P 9.

 Defendants maintain that the state court has a policy of referring to counsel pro se motions submitted by criminal defendants who are represented by counsel; they do not state whether this policy has been reduced to written form. Affidavit of Thomas L. Mennella, Sworn to June 6, 1994 ("Mennella Aff.") P 2; Affidavit of Paul Toma, Sworn to June 6, 1994 ("Toma Aff.") P 2. While defendants allege that they did not create this policy, they acknowledge that they are charged with its implementation. Mennella Aff. P 2; Toma Aff. P 2. Mennella alleges -- and plaintiff does not dispute -- that he was not personally involved in the decision to forward plaintiff's petition to Lewis, Mennella Aff. P 3; however, Toma describes his involvement as follows:

 
Upon review of plaintiff's pro se motion papers, I noted that plaintiff was challenging, inter alia, the constitutionality of his October 22, 1992 arrest by New York City Police Officer Robert Hardenfelder. I then looked through the state court records and noted plaintiff had been indicted as a result of that arrest and was a defendant in an action where he was represented by George Lewis, Esq. and the Legal Aid Society.
 
Therefore, in accordance with the state court policy, on November 25, 1992 I forwarded the pro se motion to Mr. Lewis. I also notified plaintiff by letter, that his motion had been forwarded to his attorney. . . .

 Toma Aff. PP 3-4.

 By the present action, plaintiff seeks compensatory damages in the amount of $ 1,000 from each defendant and punitive damages in the amount of $ 9,000 from each defendant, as well as a declaratory judgment that defendants' acts and policies violated his constitutional rights and violated state law. Compl. p. 5. In addition, plaintiff asks the court "to apply the applicable law to the full merits of [his] case." Compl. p. 5.

 DISCUSSION

 In support of their motion for summary judgment, defendants argue that plaintiff's action for money damages is barred by the Eleventh Amendment and the doctrine of qualified immunity; that the Complaint should be dismissed on the grounds of comity and federalism; and that the Complaint fails to state a claim under § 1983. After reviewing the general standards ...


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