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Fox v. Harris

United States District Court, N.D. New York

April 7, 2017

JAVELL FOX, Plaintiff,
SGT. HARRIS, Defendant.


          Lawrence E. Kahn U.S. District Judge


         Pro se plaintiff Javell Fox commenced the present action in Oneida County Supreme Court under 42 U.S.C. § 1983, alleging violations of his right of access to the courts. Dkt. No. 2 (“Complaint”). The case was removed to the Northern District of New York on May 20, 2015. Dkt. No. 1 (“Notice of Removal”). Presently before the Court is defendant Sergeant Deborah Harris's motion for summary judgment. Dkt. No. 29 (“Motion”); see also Dkt. Nos. 29-27 (“Memorandum”), 29-26 (“Harris Statement of Material Facts”). Fox filed a response, Dkt. No. 34-1 (“Response”); see also Dkt. No. 34-2 (“Fox Statement of Material Facts”), and Harris filed a reply, Dkt. No. 37 (“Reply”). For the following reasons, the Motion is granted.


         A. Factual Background

         On October 27, 2011, Fox was charged in the County Court of Oneida County, New York, with third- and fourth-degree criminal possession of a controlled substance, resisting arrest, and second-degree harassment. Dkt. No. 29-16 (“Zennamo Declaration”) ¶ 3. One day earlier, Cory Zennamo, an assistant public defender in Oneida County, had been assigned to represent Fox in the case. Id. ¶¶ 1-2. Zennamo represented Fox throughout the criminal proceedings, “including at trial and sentencing.” Id. ¶ 4. Zennamo also filed pretrial motions, including a motion to suppress, and participated in Huntley and Mapp hearings. Dkt. Nos. 29-17 (“Exhibit A”), 29-18 (“Exhibit B”), 29-19 (“Exhibit C”), 29-20 (“Exhibit D”).[1] Without the assistance of Zennamo, Fox filed his own motions in the case. Dkt. No. 29-24 (“Exhibit 5”). On April 5, 2012, after a two-day bench trial, Fox was found guilty on all counts. Dkt. No. 29-22 (“Exhibit E”) at 145:13-25. On May 21, 2012, Fox received a ten-year sentence for his crimes, Dkt. No. 29-23 (“Exhibit F”) at 5:3-14, and the Appellate Division of the New York Supreme Court, Fourth Department, affirmed Fox's conviction on January 2, 2015, People v. Fox, 999 N.Y.S.2d 293, 295 (App. Div. 2015).

         Fox was not pleased with Zennamo's performance. Fox SMF ¶ 11. Specifically, Fox alleges that Zennamo “failed to call [Fox's] alibi witness to go to the Grand Jury” or the trial, id. ¶¶ 5, 8, “refused to allow [Fox] to review pretrial motions before he submitted them, ” id. ¶ 6, and “failed to preserve [d]iscovery in the form of dashcam footage that would have gotten the narcotics [Fox] was charged with suppressed and the case dismissed, ” id. ¶ 8. Fox has been pursuing an ineffective assistance of counsel claim stemming from Zennamo's representation; the Appellate Division, in affirming Fox's conviction, rejected that claim. Fox, 999 N.Y.S.2d at 294-95. Fox also sued Zennamo in the Northern District for depriving him of his constitutional rights and committing attorney malpractice, and this Court dismissed his complaint with prejudice on March 18, 2016. Fox v. Zennamo, No. 15-CV-587, 2016 WL 1090583, at *3 (N.D.N.Y. Mar. 18, 2016) (Kahn, J.).

         Fox was incarcerated at the Oneida County Correctional Facility (the “Jail”) from August 20, 2010, to March 1, 2011, and then from October 4, 2011, to June 1, 2012. Dkt. Nos. 29-4 (“Zurek Affidavit”) ¶ 2, 29-15 (“Harris Affidavit”) ¶ 3. Thus, Fox was incarcerated in the Jail from charging to sentencing for the crimes discussed above. The Jail usually “houses over 500 inmates and has one Corrections Service Aide assigned to its law library.” Zurek Aff. ¶ 6; Harris Aff. ¶ 6. The Jail maintains a policy of both allowing inmates to “consult with counsel and making available legal reference materials.” Zurek Aff. ¶ 5; Harris Aff. ¶ 5. Fox took advantage of the policy; he testified to having made requests for 300 to 400 cases during his time at the Jail. Dkt. No. 29-3 (“Fox Deposition”) at 46:23-47:5. That is unsurprising, for Fox is a prolific litigant, having filed fourteen lawsuits in state court in 2011 and 2012 alone. Dkt. No. 29-25 (“Exhibit 6”) at 1.

         Sometime in late October or early November 2010, the law librarian at the Jail told Harris, one of the Jail's supervisors of inmate programs, Harris Aff. ¶ 2, that Fox was making “a large number of requests for [legal] materials, ” id. ¶ 9; Zurek Aff. ¶ 10. Harris informed Captain Liddy of Fox's behavior, and Liddy referred the matter to Lisa Zurek, another supervisor of inmate programs at the Jail. Zurek Aff. ¶¶ 1, 10; Harris Aff. ¶ 9. Zurek then asked Harris to tell her how many requests Fox had made, and on November 2, 2010, Harris told Zurek that Fox “had made over 100 requests, all of which had been honored.” Zurek Aff. ¶ 10; Harris Aff. ¶ 9.

         After receiving this information, Zurek informed Liddy that Fox's requests “contained at least 5 items per request.” Zurek Aff. ¶ 10. On November 4, 2010, Liddy responded to Zurek by directing that Fox “be limited to one item per day with a maximum of 20 pages, 5 days per week.” Id.; Harris Aff. ¶ 9.[2] The same day, Zurek informed Fox of the new restrictions. Zurek Aff. ¶ 10. Harris says she was “involved subsequently from time to time in regard to . . . Fox's law library usage, ” but stresses that she “never personally imposed restrictions” on Fox's access to legal materials. Harris Aff. ¶ 10.

         Fox filed grievances about the restrictions on his access to legal materials. Zurek Aff. ¶¶ 11, 14. He now claims that but for these restrictions, he would have been able, during pretrial proceedings and the trial itself, to perform the research necessary to correct the deficiencies he saw in Zennamo's representation, namely, Zennamo's failure to make use of the alibi witness and obtain the dashcam footage. Resp. at 8-9. That, according to him, shows that he was denied access to the courts. Id.

         B. Procedural History

         Fox brought this case against defendants Edna P. Hobbie, Anne Lamont, Harris, Zurek, Liddy, and the Jail. Compl. at 3.[3] On May 25, 2015, Defendants filed an unopposed motion to dismiss, Dkt. No. 5 (“Motion to Dismiss”), which the Court granted in part and denied in part on March 18, 2016, Fox v. Hobbie, No. 15-CV-616, 2016 WL 1090585, at *4 (N.D.N.Y. Mar. 18, 2016) (Kahn, J.). The Court dismissed all claims against Hobbie, Lamont, Zurek, Liddy, and the Jail. Id. On November 29, 2016, Harris, the sole remaining defendant, moved for summary judgment. Mot. She argues that Fox's access-to-the-courts claim fails because he has not demonstrated actual injury from the restrictions on his access to legal materials, and because his right of access to the courts during pretrial proceedings and the trial itself was satisfied by Zennamo's representation. Mem. at 4-7. Harris also argues that she is entitled to qualified immunity. Id. at 7-8.[4]

         III. ...

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