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Dinsio v. Appellate Division, Third Department

United States District Court, N.D. New York

July 14, 2017

AMIL DINSIO, Plaintiff,
v.
APPELLATE DIVISION, THIRD DEPARTMENT, A State Court of Appeals, Defendant.

          AMIL DINSIO, 97-A-5765 Plaintiff, Pro Se.

          HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Counsel for Defendants.

          COLLEEN D. GALLIGAN, ESQ. DENISE P. BUCKLEY, ESQ. Assistant Attorneys General.

          DECISION AND ORDER

          Hon. Glenn T. Suddaby Chief U.S. District Judge.

         Currently before the Court, in this pro se civil rights action filed by Amil Dinsio (“Plaintiff”) against the New York State Supreme Court, Appellate Division, Third Judicial Department (“Defendant” or “Third Department”), are Defendant's motion to dismiss Plaintiff's Amended Complaint for lack of subject-matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), and/or for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) (Dkt. No. 22), and Plaintiff's motion to “supplement [his] legal filings with additional evidence.” (Dkt. No. 33). For the reasons set forth below, Plaintiff's motion to supplement is granted, and Defendant's motion to dismiss is granted.

         I. RELEVANT BACKGROUND

         A. Plaintiff's Amended Complaint

         Generally, liberally construed, Plaintiff's Amended Complaint alleges as follows. (Dkt. No. 10.)[1] In June of 1997, Plaintiff was convicted of armed robbery and kidnapping a police officer in the Town of East Greenbush, New York. (Dkt. No. 1, ¶¶ 1-2 [Pl.'s Compl.].) Plaintiff was sentenced to serve 25 years in prison. (Id., ¶ 2.) Thereafter, Plaintiff appealed his conviction and filed federal habeas corpus petitions regarding his incarceration, which were denied. (Id., ¶ 4.)

         On May 27, 2011, the New York County Court, Rensselaer County (“Rensselaer County Court”), dismissed Plaintiff's motions to vacate his convictions, pursuant to N.Y. Crim. Proc. Law (“CPL”) § 440.10, which were based on various claims regarding the proof offered at trial, including an allegation that a tape recording of police radio transmissions was fabricated and/or fraudulent. (Id., ¶ 32; Dkt. No. 1, Attach. 4, at 11 [Pl.'s Ex. “14-14-14”]; Dkt. No. 1, Attach. 15, at 2 [Pl.'s Ex. “J”].)[2]

         On May 24, 2012, the Third Department issued a Decision and Order denying Plaintiff's application pursuant to CPL § 460.15 for permission to appeal the orders entered by the Rensselaer County Court, dated September 23, 2010, January 20, 2011, May 27, 2011, and February 8, 2012, which denied Plaintiff's attempts to overturn his conviction. (Dkt. No. 1, ¶ 33 [Pl.'s Compl.]; Dkt. No. 1, Attach. 18, at 2 [Pl.'s Ex. “L”].) Justices Robert S. Rose, Elizabeth A. Garry, Edward O. Spain, Michael E. Kavanagh, and Leslie E. Stein concurred in this decision. (Dkt. No. 1, Attach. 18, at 2 [Pl.'s Ex. “L”].)[3]

         On June 16, 2012, Plaintiff filed a motion requesting that the Third Department reconsider its order of May 24, 2012 (Dkt. No. 1, Attach. 51 [Pl.'s Ex. “111”]); and, while this motion was pending, Plaintiff filed, along with a petition for a writ of mandamus to compel pursuant to Article 78 of the New York Civil Practice Law and Rules (“CPLR”), a request for an Order directing the Third Department to show cause “why the Court should not be compelled to do its CPLR § 5501(c) duties to determine if the tape is fabricated, among other mandatory Court duties specified by the Plaintiff in his article 78.” (Dkt. No. 1, ¶ 34 [Pl.'s Compl.].)

         On October 19, 2012, the Third Department sent a letter to Plaintiff advising him that it was in receipt of his papers in support of his request for an order to show cause. (Dkt. No. 1, Attach. 19, at 2 [Pl.'s Ex. “M”].) The Third Department returned these papers to Plaintiff and suggested that he proceed by notice of petition instead. (Id.; Dkt. No. 1, ¶ 35 [Pl.'s Compl.].) In addition, the Third Department advised him that any petition filed with the court must be accompanied by a $315.00 filing fee or a request to proceed as a poor person. (Dkt. No. 1, Attach. 19, at 2 [Pl.'s Ex. “M”].)

         On October 26, 2012, Plaintiff wrote to the Clerk of the Third Department and advised the Clerk that his appeal was late because he attempted to file it with the wrong court and that he cannot re-write his order to show cause and petition. (Dkt. No. 1, ¶ 36 [Pl.'s Compl.]; Dkt. No. 1, Attach. 20, at 2-3 [Pl.'s Ex. “N”].) Plaintiff insisted that the Third Department accept and file his papers, while also accusing the court of “attempting to cover up prosecutorial misconduct.” (Id.)

         On November 8, 2012, the Third Department responded to Plaintiff and advised him, among other things, that no filing fee had been received and that it was returning his motion papers because a proceeding had not been properly commenced. (Dkt. No. 1, ¶ 37 [Pl.'s Compl.]; Dkt. No. 1, Attach. 21, at 2 [Pl.'s Ex. “O”].) However, Plaintiff's original Article 78 papers were not returned at this time, leading Plaintiff to believe that the Third Department had “stole[n]” them. (Dkt. No. 1, ¶ 38 [Pl.'s Compl.].) Plaintiff requested in subsequent letters that his motion papers be returned. (Id., ¶¶ 39-40.)

         On April 26, 2013, Plaintiff filed a fourth motion for reconsideration[4] of the Third Department's Decision and Order dated May 24, 2012, which denied Plaintiff's application seeking to appeal the Rensselaer County Court's denial of his motions to vacate his conviction pursuant to CPL § 440.10. (Dkt. No. 1, Attach. 50, at 35 [Pl.'s Ex. “999”].)

         On May 13, 2013, the Third Department advised Plaintiff that it had not received a filing fee in connection with Case No. 516101. (Id. at 36.) On May 15, 2013, Plaintiff responded to the Third Department and advised that a filing fee would be sent and that the Third Department had his original Article 78 petition. (Id. at 37.) On May 23, 2013, the Third Department issued a Decision and Order in Case No. 516101, which denied Plaintiff's motions for reconsideration and transfer. (Id. at 43.) Justices Stein, Spain, Garry, and John A. Lahtinen concurred in the decision.[5] (Id.)

         On June 13, 2013, Plaintiff wrote to the Third Department and requested a receipt for his $315.00 filing fee and complained that CPLR § 506(b) needs to be changed because “I am sure the Court will never compel itself to do a ministerial court act that it was required to do in the first place.” (Id. at 38.) On June 18, 2013, the Third Department wrote to Plaintiff acknowledging that it had received his letter of June 13, 2013, along with his moving papers for Case No. 516101. (Id. at 13, 39.) The Third Department further advised him that it could not give him a receipt for a filing fee because it had not received a filing fee from him. (Id.)

         On July 20, 2013, Plaintiff wrote to the Third Department and demanded to know what Justice ordered his Article 78 petition to be filed without having first received the $315.00 filing fee. (Id. at 40.) Plaintiff also provided a receipt for a money order for Case No. 516101 as evidence that the filing fee had been received by the Third Department. (Id.) On August 8, 2013, the Third Department wrote to Plaintiff and acknowledged receipt of his July 20, 2013, letter and explained that a matter could be filed with the court but that it would not be acted upon without a filing fee. (Id. at 41.) The Third Department repeated its assertion that it had not yet received a filing fee from Plaintiff. (Id.)

         On September 5, 2013, Plaintiff wrote to the Third Department and advised it that he had discovered that the court had his filing fee since May 23, 2013, and alleged that the Third Department was attempting to steal his money. (Id. at 42.) Plaintiff threatened that, if the Third Department did not “remit the fraud tape issue, ” the judges and clerks of the Third Department could face criminal charges. (Id.) On the same date, Plaintiff signed an amended notice of petition and verified petition in the Matter of Amil Dinsio v. Third Department, Case No. 517441. (Id. at 3-7.) Through this petition, Plaintiff sought to compel the Third Department to “process” his Article 78 petition that was filed on October 12, 2012. (Id. at 4.) Plaintiff also accused the Justices of the Third Department of stealing his original Article 78 petition. (Id. at 5, ¶ 5.)

         On September 18, 2013, the Third Department wrote to Plaintiff to acknowledge receipt of his notice of petition and verified petition. (Id. at 33.) In addition, the Third Department advised that it did in fact have his filing fee of $315.00, which had been received on May 23, 2013, and deposited into the court's account on May 28, 2013, but that it had not been properly noted in the computer file. (Id.) Because Plaintiff's motions in Case No. 516101 had already been denied, the Third Department asked Plaintiff whether he would like to have the filing fee returned to him. (Id.)

         On November 18, 2013, Plaintiff signed and filed an amended notice of petition and amended petition in Matter of Amil Dinsio v. Third Department (Case No. 517441). (Id. at 16-28.) Through this petition, Plaintiff once again sought to compel the Third Department to process his Article 78 petition that was filed on October 12, 2012. (Id. at 17, ¶ 3.) On December 12, 2013, the Third Department wrote to Plaintiff to acknowledge receipt of his amended notice of petition. (Id. at 2.) The Third Department further advised that it would be seeking legal representation from the New York State Office of the Attorney General. (Id.; Dkt. No. 1, ¶ 63 [Pl.'s Compl.].)

         On December 31, 2013, Assistant Solicitor General Frank Brady from the Office of the Attorney General wrote to Plaintiff and the Third Department that he was in receipt of the Third Department's letter dated December 12, 2013. (Dkt. No. 1, Attach. 49, at 12; Dkt. No. 1, ¶ 64 [Pl.'s Compl.].) Mr. Brady advised Plaintiff and the Third Department that Plaintiff never obtained personal jurisdiction over the Third Department and, in any event, his Article 78 petition seeking an order to compel the Third Department to grant him permission to appeal from the orders of the Rensselaer County Court fails on its merits. (Dkt. No. 1, Attach. 49, at 12-13.) Specifically, Mr. Brady argued in his letter that “[m]andamus only lies to compel the performance of acts that are mandatory, not discretionary, and only when there is a clear legal right to the relief sought.” (Id. at 13.) Mr. Brady argued that the decision whether to grant permission to appeal an order pursuant to CPL § 460.15 is a discretionary act and Plaintiff does not have a clear legal right to such permission. (Id.)

         On January 10, 2014, the Third Department wrote to Plaintiff to acknowledge receipt of Mr. Brady's letter and that it would be treating the letter as a motion to dismiss Case Nos. 516101 and 517441. (Id. at 14; Dkt. No. 1, ¶ 65 [Pl.'s Compl.].) The Third Department advised Plaintiff to file any papers in opposition by January 24, 2014. (Dkt. No. 1, Attach. 49, at 14.)

         On March 4, 2014, Plaintiff opposed the Third Department's application to dismiss Case Nos. 516101 and 517441. (Dkt. No. 1, Attach. 61, at 2-22 [Pl.'s Ex. “12-12-12”].) Among other things, Plaintiff asserted that the Third Department's motion to dismiss was “a conspiracy between the Attorney General's Office and some Appellate Division Justices” and that “Justices Rose, Spain, Stein, Kavanagh and Garry are caught up in attempting to cover up the People's egregious prosecutorial misconduct[.]” (Id. at 10-11, ¶¶ 32, 34.) Plaintiff also asserted that he had not filed a notice of petition, dated February 12, 2013, as alleged in the motion to dismiss. (Id. at 10.)

         On April 16, 2014, Plaintiff wrote to the Third Department and acknowledged receipt of its letter, dated April 7, 2014, which contained a copy of his notice of petition dated February 12, 2013, and stamped “as received in this office on 2/19/13.” (Id. at 24.) On May 30, 2014, Plaintiff wrote to the Third Department and asked the court to explain why some of his previous filings were not assigned Case No. 516101 as well as questioning the court's assertion that it had not received a money order in the amount of $305.00. (Id. at 31-32; Dkt. No. 1, ¶ 68 [Pl.'s Compl.].) In addition, Plaintiff threatened that, if he is not released from prison by June 10, 2014, “a federal or state jury will be [giving his case] some very serious thought.” (Dkt. No. 1, Attach. 61, at 31 [Pl.'s Ex. “12-12-12”].) Plaintiff also threatened that he would be providing the public with information about his case and how the Third Department stole his pleadings and filing fee. (Id. at 32.)

         On June 2, 2014, Plaintiff filed an “Addendum” to his papers filed in opposition to the Third Department's motion to dismiss. (Id. at 26-27.) On June 26, 2014, the Third Department, upon its own motion, transferred all three actions, entitled Matters of Dinisio v. Supreme Court, Appellate Division, Third Department (Case Nos. 516101, 517441, and 518363), to the Appellate Division, Fourth Department (“the Fourth Department”). (Dkt. No. 1, Attach. 46, at 2, 5 [Pl.'s Ex. “U”]; Dkt. No. 1, ¶ 71 [Pl.'s Compl.].) In the Third Department's letter noting that these cases had been transferred, the Third Department stated that these matters “were discussed previously by Presiding Justice Peters [of the Third Department] and Presiding Justice Scudder [of the Fourth Department].” (Dkt. No. 1, Attach. 46, at 2 [Pl.'s Ex. “U”]; Dkt. No. 1, ¶ 72 [Pl.'s Compl.].) Based on this statement, Plaintiff alleges that “Presiding Justices Peters and Scudder had their plan of fraud all setup before June 26, 2014, when the [Third Department] transferred the matters to the Fourth Appellate Division.” (Dkt. No. 1, ¶ 73 [Pl.'s Compl.].) Plaintiff further alleges that his original Article 78 motion was not transferred to the Fourth Department for its consideration but that this made little difference “because from the beginning of the transferred matters on June 26, 2014, . . . Justice Scudder was in on the cover up of the (5) Third Appellate Division Justices stealing the Plaintiff's original article 78, and its filing fee.” (Id., ¶¶ 73, 81-84.)

         On February 6, 2015, the Fourth Department dismissed all three special proceedings Plaintiff had commenced against the Third Department. (Dkt. No. 1, Attach. 4, at 7-10 [Pl.'s Ex. “14-14-14”].) On March 23, 2015, Plaintiff filed a notice of motion for leave to appeal the Fourth Department's decision to the New York State Court of Appeals, which was subsequently denied on June 9, 2015. (Id. at 2-6.) Based on these allegations, Plaintiff claims that, because the Third Department stole his original Article 78 petition, he was denied access to a court, in ...


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