intricacies of the present case render the contours of this right far more nebulous than it otherwise might appear in theory.
The Court regards the context in which the subject objection was made to impel the conclusion that a reasonable court reporter could have believed that Curro's appellate rights would not be prejudiced through the omission of this objection from the transcript. Most significantly, the context in which the subject objection arose was not one in which the prosecutor's summation was suddenly interrupted by the dissenting voice of Curro's trial counsel. Rather, a review of the transcript of plaintiff's criminal trial shows that, during the course of the prosecutor's summation--which was not unusually long, spanning 37 pages of the trial transcript, see Tr. 822-59--Curro's trial counsel voiced objections on at least 24 separate occasions. Tr. at 822, 822-23, 823, 824, 825, 825, 825-30, 834, 835, 835, 838, 839, 839, 840, 843, 844, 846, 851, 852, 853, 854, 855, 855, 859. According to Curro, on a twenty-fifth occasion, corresponding to page 837 of the transcript, lines 12 and 13, a record of the objection was deliberately omitted. There does not appear to have been anything remarkable about the omitted objection that would render it especially memorable in relation to the 24 recorded objections; according to the plaintiff, the missing objection was in response to the following statement of the prosecutor: "She went home and whatever happened, happened after that." Tr. at 837; see Transcript Settlement Hearing, supra, at 5. In view of the totality of the circumstances, including the substantial frequency with which Curro's trial counsel objected to the prosecutor's summation during a relatively short period of time, the Court concludes that a competent court reporter, faced with these exact circumstances, "could have reasonably believed" that the omission of the subject objection would not prejudice Curro's appellate rights.
Eng, 858 F.2d at 895 (citing Robison v. Via, 821 F.2d 913, 921 (2d Cir. 1987)); see Anderson, 483 U.S. at 636-37, 646, 107 S. Ct. at 3037, 3042 (Answering in the negative the question of "whether a federal law enforcement officer who participates in a search that violates the Fourth Amendment may be held personally liable for money damages if a reasonable officer could have believed that the search comported with the Fourth Amendment.") (emphasis added); cf. P.C. v. McLaughlin, 913 F.2d 1033, 1040 (2d Cir. 1990) (qualified immunity defense available insofar as existence of generalized right pursuant to federal statute to a free appropriate public education did not clearly establish a particularized right of the plaintiff, a mildly retarded youth, to any specific residential placement); Walentas v. Lipper, 862 F.2d 414, 423 (2d Cir. 1988) ("Harlow and its progeny make clear that the objective legal reasonableness of an official's actions must be viewed in light of the action's relationship to the clearly established law at the time, and not to some more general standards of reasonable and appropriate governmental conduct."), cert. denied, 490 U.S. 1021, 104 L. Ed. 2d 183, 109 S. Ct. 1747 (1989); Robison v. Via, 821 F.2d 913, 921 (2d Cir. 1987) (Although "it has long been clearly established that an arrest without probable cause is a constitutional violation, nonetheless, the arresting officer is entitled to qualified immunity as a matter of law if the undisputed facts and all permissible inferences favorable to the plaintiff show either (a) that it was objectively reasonable for the officer to believe that probable cause existed, or (b) that officers of reasonable competence could disagree on whether the probable cause test was met.") (emphasis added) (citing Malley v. Briggs, 475 U.S. 335, 106 S. Ct. 1092, 1096, 89 L. Ed. 2d 271 (1986)) (other citation omitted).
In sum, therefore, the Court is unpersuaded that the unlawfulness of the alleged conduct should have been apparent to the defendant court reporters in light of pre-existing law. See Anderson, 483 U.S. at 640, 107 S. Ct. at 3039. Otherwise stated, even assuming that a purposeful failure of the defendant court reporters to transcribe the objection in question abridged Curro's liberty interest, there is no basis for this Court to conclude that such conduct, at the time that it occurred, and in view of the all of the factual intricacies presented, violated "clearly established [federal] . . . rights of which a reasonable [court reporter] would have known." Harlow, 457 U.S. at 818, 102 S. Ct. at 2738. Accordingly, the defense of qualified immunity protects each of the defendants from suit for damages. See Davis, 468 U.S. at 197, 104 S. Ct. at 3020-21; see also Carson v. Veasy, 849 F.2d 608, 1988 WL 60725, at *1 (6th Cir. 1988) (defendant court reporter entitled to qualified immunity against claim that he intentionally falsified and altered a transcript). Inasmuch as injunctive relief is not sought, this action must be dismissed.
In accordance with the foregoing, the Court enters the following orders in this action:
(1) Plaintiff's motion, pursuant to Fed. R. Civ. P. 37(a), for an order directing the prosecutor at his criminal trial to disclose certain information relative to the testimony of the plaintiff's brother therein, and directing the production of other related information, is DENIED.
(2) Plaintiff's motion, pursuant to Fed. R. Civ. P. 37(a), for an order compelling the Brooklyn House of Detention for Men, a nonparty to this action, to produce its Inmate Law Library Log, is DENIED.
(3) Plaintiff's cross-motion to estop the defendants from relitigating issues previously addressed in their motions to dismiss is DENIED.
(4) Defendants' motion for summary judgment pursuant to Fed. R. Civ. P. 56(b) is GRANTED as to each defendant. Accordingly, the Clerk of the Court is directed to enter judgment in favor of the defendants dismissing this case in its entirety.
Joanna Seybert, U.S.D.J.
Dated: Uniondale, New York
April 28, 1995