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Waters v. Sunshine

March 19, 2009

KEITH WATERS, PRO SE, PLAINTIFF,
v.
NANCY T. SUNSHINE, CHIEF CLERK, DENNIS ALMOVODAR, COURT AIDE, JANE/JOHN DOE, MOTION CLERK, DEFENDANTS.



The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge

MEMORANDUM & ORDER

Plaintiff Keith Waters, appearing pro se, brought this action under 42 U.S.C. § 1983 against various employees of the New York Supreme Court, Kings County including Nancy T. Sunshine, the County Clerk, Dennis Almovodar, a court aide, and an unnamed motion clerk. Plaintiff alleges that these individuals violated his constitutional right to access the court by failing to: (1) forward his substitution of counsel application and habeas petition to his attorney; (2) file his habeas petition and substitution of counsel application; and (3) forward his substitution of counsel application to a judge for consideration. All parties moved for summary judgment. For the reasons set forth more fully below, the court denies Plaintiff's motion in its entirety and grants Defendants' motion in its entirety.

Plaintiff cannot survive summary judgment because even assuming that Defendants engaged in the alleged misconduct, the undisputed evidence shows that Plaintiff had available remedies. Furthermore, there is no evidence suggesting that Defendants acted with the requisite intent or that Plaintiff suffered actual injury. Additionally, this Section 1983 suit cannot be sustained against Sunshine because it is undisputed that she was not personally involved with any of the alleged events. Finally, under the principles of federalism and comity, the Eleventh Amendment, and Section 1983, the court cannot grant the declaratory relief that Plaintiff seeks.

I. Background

Plaintiff is currently in state custody at Coxsackie Correctional Facility following his May 1, 2006 conviction by a jury in Kings County Supreme Court for robbery in the first degree. He was arrested in September 2005 and has been incarcerated since. In December 2005, the state court appointed Ayisha Amjad of the Legal Aid Society of Brooklyn to represent him. Plaintiff claims that, on or about January 28, 2006, he filed a habeas petition with the Kings County Supreme Court. (Pl.'s Compl. at ¶ 32.) The return receipt indicates that Almovodar received the petition on behalf of the court. (Id.) According to Plaintiff, the Criminal Term Motion Department of the Brooklyn Supreme Court notified him on February 8, 2006 that his habeas petition had been forwarded to Amjad. (Id. at ¶ 33.) During a hearing held on March 2, 2006, Amjad, however, denied ever receiving the petition. (Id. at ¶ 34.) Records from the Criminal Term Motion Department show that it did not forward the petition to Amjad until April 7, 2006. (Aff. of James Imperatrice at ¶ 11, Ex. C.)

On March 21, 2006, Plaintiff filed an application to substitute counsel with the Kings County Supreme Court that Almovodar received on or about April 3, 2006. ((Pl.'s Compl. at ¶ 35, Ex. A-1.) Plaintiff alleges that upon receiving the application, the court staff failed to file or otherwise submit the application to the judge for consideration. (Id. at ¶ 36.) He also claims that Defendants did not forward his application to his counsel. Defendants submitted documents indicating that the court clerk forwarded the application to Amjad on April 4, 2006. (Aff. of James Imperatrice at ¶ 10, Ex. B.) In the application, Plaintiff alleged that Amjad "failed to properly investigate[,] notify[,] and consult with [him] regularly in the preparation of the defense . . . [thus] [r]endering the representation less than meaningful." (Pl.'s Mem. of Law for Summ. J. at Ex. A-1.)

The state court did not consider this application until after his conviction when Plaintiff sought to vacate his conviction pursuant to CPL § 440.10. (Aff. of James Imperatrice at ¶ 13, Ex. E.) In this motion, Plaintiff argued that his sentence must be set aside because the trial court failed to consider his pro se motion to reassign counsel. (Id.) On October 13, 2006, the Kings County Supreme Court denied his motion as meritless noting that his complaints about Amjad were belied by Plaintiff's own correspondence in which he "thanks counsel with [sic] providing him with documents, comments on various documents sent to him by counsel and looks forward to a video conference." (Id. at Ex. E. at 3.) The court also found that his "counsel provided meaningful representation at trial" and noted that, other than his April 2, 2006 application, "there is no indication that defendant had any further conflict with counsel or that he attempted to bring his complaints to the court's attention." (Id.) The court dismissed Plaintiff's protest regarding the trial court's failure to address his motion by explaining that "even though it would have been better for the motion to have been brought to the [trial] court's attention, had it come before the court, it is clear that it would have been denied." (Id.) The Appellate Division, Second Department, denied Plaintiff's appeal of this decision on January 18, 2007. (Id. at ¶ 14, Ex. F.) There is no record that Plaintiff appealed his conviction. (Id. at ¶¶ 16-17.)

The Criminal Term Office of the Kings County Supreme Court handles all filings in criminal matters. That office is separate from the County Clerk's Office where Sunshine is employed. (Aff. of Nancy T. Sunshine, at ¶ 7.) According to Sunshine, the only involvement that the County Clerk's office had in Plaintiff's case "was the ministerial duty of stamping the entry date of the document when the document was filed in the Supreme Court, Criminal Term."

(Id. at ¶ 8.) Furthermore, Sunshine claims that, aside from the current suit, she has had no personal involvement with Plaintiff's filings in his criminal case. (Id. at ¶¶ 9-10.)

On November 8, 2007, Plaintiff filed this suit under Section 1983. In it, he complains about Defendants' failures to file and forward his habeas petition and application to substitute counsel. He attributes these failures, at least in part, to the lack of "authorization for court clerks or court aides to forward pro-se applications submitted by a petitioner to attached counsel." (Pl.'s Compl. at ¶¶ 19, 21, 29-31.) Consequently, Plaintiff claims that he was precluded from: (1) applying for a substitution of counsel; (2) proceeding pro se; and (3) raising ineffective assistance of counsel claims for his counsel's failure to challenge a search and seizure and to raise Brady and Rosario violations. (Pl.'s Compl. at ¶¶ 21-25, 27-28.) Plaintiff seeks punitive damages of $3,000 against each defendant as well as declaratory relief including "an order declaring that plaintiff is in custody in violation of the U.S. Constitution." (Pl.'s Compl. at ¶¶ 46-51, Pl.'s Amend. Compl. at ¶ 1-2.)

II. Discussion

Plaintiff moved for summary judgment. In support of their opposition and cross-motion for summary judgment, Defendants argue that: (1) the suit against Sunshine is improper because Plaintiff failed to allege that she had any direct involvement in the alleged conduct; (2) Plaintiff's claims are barred by qualified and quasi-judicial immunity; and (3) there was no violation of the constitutional right of access to the courts.

a. Summary Judgment Standard

Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).*fn1 The court must view all facts in the light most favorable to the nonmoving party, but "only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 127 S.Ct. 1769, 1776 (2007). "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Id. A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmoving party, however, may not rely on "[c]onclusory allegations, conjecture, and speculation," Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998), but must affirmatively "set out specific facts showing a genuine issue for trial," Fed. R. Civ. P. 56(e). The nonmoving party must show, by affidavits or as otherwise provided in Rule 56, that there are specific issues that can only be resolved at trial. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995). "When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine ...


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