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Daniel J. Wik v. Donald R. Kunego

October 9, 2012


The opinion of the court was delivered by: Charles J. Siragusa United States District Judge


Lippman O'Connor 300 Olympic Tow ers 300 Pearl Street Buffalo, NY 14202 INTRODUCTION Siragusa, J. This is an action in which the pro se Plaintiff is suing Defendant, who is a Town Justice in the Town of Bergen, New York, because Defendant allegedly failed to provide him with certain documents pertaining to a prosecution against him. Now before the Court is Defendant's motion for summary judgment, filed April 13, 2012, ECF No. 25. The application is granted and this action is dismissed.


The following facts are taken from the Complaint and from Defendant's summary judgment motion. Defendant is one of two town justices in the Town of Bergen. The other town justice is the Honorable Robert G. Swapcienski, against whom Plaintiff filed a separate lawsuit in this Court. See, Wik v. Swapcienski, 11-CV-6220-CJS. Plaintiff alleges that on or about July 27, 2010, he was "unlawfully restrained in his liberty at Bergen Town, Genesee county [sic], New York under force of arms," and appeared before Defendant. Compl. ¶¶ 35--36. He alleges that although Defendant "holds himself out to be a New York public officer namely a Bergen Town Court Justice," he is "not titled to possess the office of Bergen Town Court Justice." Compl. ¶¶ 39--40. Plaintiff contends that Defendant is not a judicial officer because he does not have "certificates from the Genesee County Clerk" attesting to that fact, because the Town of Bergen has "never authorized the use of a blanket bond," and because Defendant has "refused to present his pocket commission."*fn1 Compl.¶¶ 40--46.

In or about July 2010, Plaintiff was prosecuted in Bergen Town Court in a case assigned to Defendant. The prosecution involved a number of traffic violations and a misdemeanor charge of Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree ("AUO2nd"). Plaintiff pleaded guilty to AUO2nd. Nevertheless, in this lawsuit, Plaintiff has various complaints about the manner in which Defendant handled his case. For example, Plaintiff maintains that Defendant violated his rights by referring to him, in a document, as "DANIEL J WIK" rather than "Daniel J. Wik." On this point, Plaintiff states:

"Daniel J. Wik" is both Plaintiff's name and Plainitiff's complete address. Plaintiff's name was given to Plaintiff by Plaintiff's Father in a solemn religious ceremony and when Plaintiff came of competent age Plaintiff convenanted with God to keep Plaintiff's name sacred and free from perversions. Thus violating Plaintiff's name violates Plaintiff's rights to religious freedom. Plaintiff's name is an English language proper noun. Therefore, according to the rules of the English language, said name must at all times be spelled with capital and lower case letters. . . . According to English language rules Proper nouns not properly capitalized are misspelled; and, Implications at law indicate spellings in the nature of all capital letters can only indicate dead persons or some fictitious business name or corporate capacity; and, Plaintiff is neither dead nor in corporate capacity. Compl. ¶¶ 10--12. The foregoing excerpt is fairly representative of the nature and quality of the grievances that Plaintiff has directed at Defendant. His complaint contains thirteen causes of action, all alleging constitutional violations.

On April 13, 2012, Defendant filed the subject motion for summary judgment.*fn2 Defendant contends that this action is barred by the doctrine of absolute judicial immunity. In response, Plaintiff has raised four arguments:

Point 1 Defendant acted in the complete absence of all jurisdiction; Point 2 Judicial Immunity does not apply to Constitutional Tort Causes of Action.

Point 3 Smith lacks authority to certify any facts except as to documents she is in custody of or facts she has first hand knowledge of.

Point 4 Defendant not titled to the original jurisdiction office of Bergen Town Justice for Bergen, New York.

Compl. at 1, 11, 13 & 16. Defendant has not filed a reply.


Summary Judgment

The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie ...

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