Opinion
6:16-CV-01312 (FJS/TWD)
02-09-2017
IVAN RAMOS, Plaintiff, v. GREGORY J. CULICK, Chief of Amsterdam Police Department, SERGEANT CARL J. RUST, Amsterdam Police Department, Defendants.
APPEARANCES: IVAN RAMOS 12-B-2475 Plaintiff, pro se Green Haven Correctional Facility P.O. Box 4000 Stormville, NY 12582
APPEARANCES: IVAN RAMOS
12-B-2475
Plaintiff, pro se
Green Haven Correctional Facility
P.O. Box 4000
Stormville, NY 12582 THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
I. INTRODUCTION
Pro se Plaintiff Ivan Ramos' initial complaint (Dkt. No. 1) in this civil rights action against Defendant Carl J. Rust ("Rust"), brought under 42 U.S.C. § 1983, was dismissed for failure to state a claim on initial review pursuant to 28 U.S.C. §§ 1915(e). (Dkt. No. 12.) The dismissal was without prejudice, and the Hon. Frederick J. Scullin, Senior District Judge, has referred Plaintiff's amended complaint (Dkt. No. 11) to the Court for initial review. Plaintiff has added Gregory J. Culick ("Culick") as a Defendant in his amended complaint. Id.
II. INITIAL SCREENING
Having found that Plaintiff meets the financial criteria for commencing this case in forma pauperis, and because Plaintiff seeks relief from an officer or employee of a governmental entity, the Court must consider the sufficiency of the allegations set forth in the Complaint in light of 28 U.S.C. §§ 1915(e) and 1915A. Section 1915(e) directs that when a plaintiff proceeds in forma pauperis, "the court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
To determine whether an action is frivolous, a court must look to see whether the complaint "lacks an arguable basis either in law or fact." Neitzke v. Williams, 490 U.S. 319, 327 (1989).
Similarly, under 28 U.S.C. § 1915A, a court must review any "complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity" and must "identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint . . . is frivolous, malicious, or fails to state a claim upon which relief can be granted; or . . . seeks monetary relief against a person who is immune from such relief." 28 U.S.C. § 1915A.
In reviewing a pro se complaint, the Court has the duty to show liberality towards pro se litigants, see Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990), and should exercise "extreme caution . . . in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and both parties (but particularly the plaintiff) have had an opportunity to respond." Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983) (internal citations omitted). Therefore, a court should not dismiss a complaint if the Plaintiff has stated "enough facts to state a claim that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although the Court should construe the factual allegations in the light most favorable to Plaintiff, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555). "[W]here the well-pleaded facts do not permit the court to infer more than the possibility of misconduct, the complaint has alleged but it has not "show[n] that the pleader is entitled to relief." Id. at 679 (quoting Federal Rule of Civil Procedure 8(a)(2)). While Rule 8(a) of the Federal Rules of Civil Procedure, which sets forth the general rules of pleading, "does not require detailed factual allegations, . . . it demands more than an unadorned, the-defendant-harmed-me accusation." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Thus, a pleading that only "tenders naked assertions devoid of further factual enhancement" will not suffice. Id. (internal quotations marks and alterations omitted). Allegations that "are so vague as to fail to give the defendants adequate notice of the claims against them" are subject to dismissal. Sheehy v. Brown, 335 F. App'x 102, 104 (2d Cir. 2009).
Where a pro se complaint fails to state a cause of action, the court generally "should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation and internal quotation marks omitted). An opportunity to amend is not required where "the problem with [the plaintiff's] causes of action is substantive" such that "better pleading will not cure it." Id. (citation omitted).
III. PLAINTIFF'S AMENDED COMPLAINT
Plaintiff is presently imprisoned after being convicted by a jury of a double homicide. (Dkt. No. 11 at ¶ 4.) Defendant Rust is a Sergeant in the Amsterdam Police Department in Amsterdam, New York. Id. at ¶ 3. On March 2, 2012, at approximately 5:50am, Rust arrived at the crime scene of the double homicide at 359 Locust Avenue, and upon entering the apartment saw one male victim and one female victim in close proximity. Id. at 5. Rust took four photographs on his department phone and backed out of the crime scene. Id.
Paragraph references are used where the referenced document contains consecutively numbered paragraphs.
Page references to documents identified by docket number are to the numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office.
Plaintiff, who was sentenced to life in prison without parole, has denied committing the crimes, and since his conviction has begun his own investigation and allegedly learned from a reliable source that the actual perpetrator of the double homicide had left his orange and blue parka at the crime scene and had been unsuccessful in retrieving it. Id. at ¶¶ 7-9. The Plaintiff has identified the alleged perpetrator and the alleged source of the information in his amended complaint. Id. at ¶ 10.
Plaintiff contends he needs the four pictures in order to demonstrate that someone other than he committed the double homicide. Id. at ¶ 16. According to Plaintiff, if he had the pictures, he could show them to his source to ascertain if the orange and blue parka belonged to the person Plaintiff believes to have been the actual perpetrator of the crimes. Id. at ¶ 17. Plaintiff alleges that the discovery will lead to DNA testing, and that without the four photos, his access to the courts will be curbed. Id. at ¶ at 18.
On April 12, 2016, Plaintiff submitted a Freedom of Information Law ("FOIL") request under N.Y. Pub. Off. Law §§ 87-89, requesting:
1.) A complete list of all Departmental Equipment/Gear issued to Sgt. Carl Rust, Badge # 207, for the dates of 2/28/2012 - 3/3/2012.(Dkt. No. 11 at 9.) On April 13, 2016, Defendant Culick denied the request on the grounds that it would require the creation of a document, something not required under FOIL. Id. at 10. On July 20, 2016, Plaintiff wrote to Culick in response to his April 13, 2016, denial letter. (Dkt. 11 at 7.) Plaintiff enclosed a copy of Rust's March 2, 2012, statement disclosing that he had taken the four pictures at the crime scene, id. at 5, and described it as indicating "in no uncertain terms of the photographs requested under the FOIL back in April 12th, along with the time and date the photographs were taken." Id. at 7. Although Culick could likely have inferred from Plaintiff's July 20, 2016, follow up letter that Plaintiff wanted copies of the photographs, no specific request for the photographs was made in the April 12, 2016, FOIL request. Id. at 7, 9.
2.) The listing of the documents required which should include all of the Departmental Equipments/Gear's "Item I.D. number, Item Description, Issue date, e.t.c., which would correspond to each item issued to Sgt. Carl J. Rust, Badge # 207, during the requested dates above.
Plaintiff followed up on his July 20, 2016, letter to Culick with an August 19, 2016, letter enclosing another copy of Rust's statement and again mentioning the four photographs. Id. at 6. On September 1, 2016, Culick again responded that Plaintiff's request would require creation of a document, and the request was denied because no such document existed. Id. at 11. Presumably, the document referenced by Culick was the list initially requested by Plaintiff.
Plaintiff has alleged that the refusal to give him the four pictures constitutes a violation of his rights under the First and Fourth Amendments to the Constitution. Id. at ¶ 19. He seeks relief directing Defendants to produce the cell phone used by Rust in taking the photographs and the photographs. Id.
IV. ANALYSIS
A. Defendant Rust
Personal involvement of an official sued in his official capacity is not necessary where a plaintiff is seeking only injunctive or declaratory relief under § 1983. See Davidson v. Scully, 148 F.Supp. 2d 249, 254 (S.D.N.Y. 2001). "Actions involving claims for prospective declaratory or injunctive relief are permissible provided the official against whom the action is brought has a direct connection to, or responsibility for, the alleged illegal action." Marshall v. Switzer, 900 F.Supp. 604, 615 (N.D.N.Y. 1995); see also Schallop v. New York State Dept. of Law, 20 F.Supp. 2d 384, 391 (N.D.N.Y. 1998) (claim for injunctive relief proper "where the state official has the authority required to perform the act.")
The only allegations in Plaintiff's amended complaint regarding Rust are that he is employed as a Sergeant by the Amsterdam Police Department, was the first to arrive on the scene of the double homicide, and took four pictures with his department issued cell phone. (Dkt. No. 11 at ¶¶ 3-4.) The amended complaint is devoid of factual allegations plausibly showing involvement on the part of Defendant Rust in Plaintiff's lack of success in obtaining the four photographs, or that Rust, as a Sergeant in the Amsterdam Police Department, has the authority in his official capacity to release the photographs to Plaintiff. (See generally Dkt. No. 11.) Plaintiff's April 12, 2016, FOIL request was sent to the "Records Access Officer" and the request was handled by Police Chief Culick with no mention of Rust. Id. at 6-11.
Plaintiff has not alleged whether he is suing Rust in his official or individual capacity, or both. Since Plaintiff is seeking solely injunctive relief, the Court has assumed that Rust is being sued in his official capacity. (See Dkt. No. 11.)
In light of the absence of any allegations in Plaintiff's amended complaint plausibly showing that Rust had any direct connection to, or responsibility for, Plaintiff's attempt to obtain copies of the four photographs, the Court recommends that the action be dismissed as against Rust. See Marshall, 900 F.Supp. at 615. Plaintiff has failed to allege any facts showing that Rust was in any way involved in the denial of Plaintiff's FOIL request, despite having had two opportunities to do so. There is nothing in Plaintiff's amended complaint suggesting that if given a third opportunity, Plaintiff would be able to state a claim for relief against Rust. See Cuoco, 222 F.3d at 112. Therefore, the Court recommends that dismissal of the action against Rust be dismissed with prejudice.
B. Defendant Culick
1. Plaintiff's Fourteenth Amendment Right to Due Process
Plaintiff has alleged that denial of the photographs violated his rights under the First and Fourth Amendments. (Dkt. No. 11 at ¶ 19.) The Fourth Amendment to the Constitution protects people from unreasonable searches and seizures, U.S. Const. amend. IV, and has no relevance to Plaintiff's claim. Surmising that Plaintiff may have intended to allege a claim for denial of due process under the Fourteenth Amendment, rather than a Fourth Amendment claim, the Court has treated it as such.
In District Attorneys Office for the Third Judicial Dist. v. Osborne, 557 U.S. 52, 68-69 (2009), the Supreme Court found that a valid conviction constitutionally deprives a criminal defendant of his liberty. Thus, a post-conviction "right to due process is not parallel to a trial right, and rather must be analyzed in light of the fact that [the convicted party] has already been found guilty at a fair trial, and has only a limited interest in postconviction relief." Id. at 69. States are given more flexibility in deciding the procedures needed in the context of post-conviction relief. Id. "'[W]hen a State chooses to offer help to those seeking relief from convictions,' due process does not dictat[e] the exact form such assistance must assume.'" Id. (quoting Pennsylvania v. Finley, 481 U.S. 551, 559 (1987)). Although there is no requirement to exhaust state-law remedies, see Patsy v. Board of Regents of Fla., 457 U.S. 496, 500-01 (1982), a plaintiff bears the burden of showing the inadequacy of the state law procedures available to him in seeking state post-conviction relief. Osborne, 557 U.S. at 71. "Federal courts may upset a State's postconviction relief procedures only if they are fundamentally inadequate to vindicate the substantive rights provided." Id. at 69.
In New York State, FOIL "provides the only state-created right to documentary evidence for a New York prisoner." McLean v. Brown, 08-CV-5200 (JG), 2010 WL 2609341, at * 7 (E.D.N.Y. June 25, 2010); see also Mallet v. Johnson, No. 09 Civ. 8430 (JGK), 2011 WL 2652570, at * 4 (S.D.N.Y. July 7, 2011) (FOIL provides a mechanism by which an inmate may obtain evidence related to a prior conviction); N.Y. Pub. Off Law § 89. A violation of New York FOIL does not give rise to a claim under § 1983. Sonds v. Cuomo, No. 9:11-CV-0895 (NAM/ATB), 2012 WL 952540, at * 3 (N.D.N.Y. Feb. 3, 2012) ("Plaintiff's state FOIL request cannot be the basis of a federal action."). "The appropriate vehicle for challenging denials of access guaranteed by the New York Freedom of Information Law is a state court proceeding pursuant to N.Y.C.P.L.R. Article 78 upon exhaustion of administrative remedies." Schuloff v. Fields, 950 F.Supp. 66, 67-68 (E.D.N.Y. 1997); Posr v. City of N.Y., No. 10-CV-2551 (RPP), 2013 WL 2419142, at * 14 (S.D.N.Y. June 4, 2013) ("Under New York state law, if an agency or governmental official fails to comply with the provisions of FOIL, the person submitting the FOIL request must pursue an administrative appeal or seek remedies in state court pursuant to N.Y.C.P.L.R. Article 78." (citing N.Y. Pub. Off. Law § 89)).
Photographs are included in the definition of "records" covered by FOIL. N.Y. Pub. Off. Law § 86(4).
Copies of all unpublished decisions cited herein will be provided to Plaintiff in accordance with LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
"The sufficiency of Article 78 proceedings to satisfy due process requirements is well established." Mallett, 2011 WL 2652570, at * 4; see also Hellenic Am. Neighborhood Action Comm., 101 F.3d 877, 880-81 (2d Cir. 1996) ("An Article 78 proceeding is adequate for due process purposes even though the petitioner may not be able to recover the same relief that he could in a § 1983 suit"); Davis v. Guarino, 52 F. App'x 568, 569 (2d Cir. 2002) (denial of plaintiff's FOIL request did not violate due process because "an Article 78 proceeding is a perfectly adequate post-deprivation remedy"); Blount v. Brown, No. 10-CV-01548 (ARR), 2010 WL 1945858, at * 2 (E.D.N.Y. May 11, 2010) ("[W]ith respect to the question of constitutional due process and FOIL requests, adequate process is clearly available through an Article 78 proceeding to remedy an improper denial of disclosure.") (citation and internal quotation marks omitted); Papay v. Haselhuhn, No. 07 Civ. 3858 (LAP) (JG), 2010 WL 4140430, at * 9-10 (S.D.N.Y. Oct. 21, 2010) (availability of Article 78 proceeding defeats claim that denial of FOIL request violates due process).
In sum, the New York FOIL procedures are sufficient to protect any property interest Plaintiff may have in the receipt of FOIL documents. Accordingly, the Court finds that Plaintiff has failed to state a claim under the Fourteenth Amendment for violation of his right to due process with regard to his FOIL request for the four crime scene photographs. Therefore, the Court recommends that Plaintiff's Fourteenth Amendment due process claim with regard to his FOIL application be dismissed without prejudice, but without leave to replead in this action in light of its futility. Cuoco, 222 F.3d at 99.
2. Plaintiff's First Amendment Claim for Denial of Access to the Courts
Plaintiff has also alleged a First Amendment claim for denial of access to the courts. The Supreme Court has long held that inmates are guaranteed a right of access to the courts under the First Amendment to the Constitution. See Lewis v. Casey, 518 U.S. 343, 350 (1996); Bounds v. Smith, 430 U.S. 817, 828 (1977). To state a claim for violation of the constitutional right of access to court, a plaintiff must allege facts plausibly suggesting: "(1) a 'nonfrivolous, arguable underlying claim' that has been frustrated by the defendants' actions, and (2) a continued inability to obtain the relief sought by the underlying claim." Arar v. Ashcroft, 585 F.3d 559, 592 (2d Cir. 2009) (quoting Christopher v. Harbury, 536 U.S. 403, 415-16 (2002)); see also Whitfield v. Inperatrice, No. 08 CV 3395 (CBA)(LB), 2010 WL 6032636 at *5 (E.D.N.Y. Sept. 17, 2010) (plaintiff's complaint "must identify a separate, 'ancillary' legal claim that has been thwarted or prejudiced by the alleged denial, and that is 'non-frivolous' and arguable in nature."), adopted as modified on other grounds, 2011 WL 864703 (March 9, 2011), aff'd 477 F. App'x 806 (2d Cir. 2012). A plaintiff must set forth sufficient facts in the complaint to suggest that success on the underlying claim is founded on more than mere "hope." Christopher, 536 U.S. at 415. In addition, a plaintiff must point to deliberate and malicious acts by the defendant that frustrated his efforts to commence or prosecute that claim. Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003) (citing Lewis, 518 U.S. at 353.)
In order to state a claim for denial of access, Plaintiff is required to "allege actual injury separate and apart from the claim that he was refused access to court records." Whitfield, 2010 WL 6032636, at * 6 (citing Christopher, 536 U.S. at 414-15, "[T]he very point of recognizing any access claims is to provide some effective vindication for a separate and distinct right to seek judicial relief for some wrong . . . our cases rest on the recognition that the right is ancillary to the underlying claim, without which a plaintiff cannot have suffered an injury by being shut out of court.")
Plaintiff does not allege in his amended complaint that the denial of his FOIL request prejudiced or interfered with an existing judicial proceeding, such as a post-conviction motion to vacate judgment pursuant N.Y. Criminal Procedure Law § 440.10(g). Moreover, Plaintiff has failed to set forth facts in his amended complaint suggesting that if he were to challenge his conviction relying on the four photographs, his success would be based on more than mere "hope." Christopher, 536 U.S. at 415. Plaintiff's amended complaint gives no indication that he has a reasonable basis, or any basis, for believing that the four photographs show the orange and blue parka he alleges belonged to the person whom he believes to be the actual killer. (Dkt. No. 11 at ¶ 17.) Even if they did, the amended complaint is devoid of factual allegations suggesting that the parka still exists, or could be located, or that it would provide any DNA evidence that would help establish Plaintiff's innocence or indeed be connected to the double homicide in any manner. Id. at ¶ 19. In short, the allegations in Plaintiff's amended complaint do not even provide an adequate basis for hope. In addition, Plaintiff has alleged no facts plausibly showing that Culick acted deliberately and maliciously in frustrating Plaintiff's efforts to commence or prosecute an underlying claim as is required for an access to the courts claim. Davis, 320 F.3d at 351.
As noted above, Plaintiff's April 12, 2016, FOIL request does not, by its terms, include a request for the four photographs Plaintiff is seeking in this action, despite what appears to have been Plaintiff's intent in making the request. (Dkt. No. 11 at 6.)
Based upon the foregoing, the Court finds that Plaintiff's amended complaint fails to state a First Amendment access to courts claim against Culick. Therefore, the Court recommends that Plaintiff's access to the courts claim be dismissed, but that the dismissal be without prejudice, and Plaintiff be granted one more opportunity to submit an amended complaint setting forth a claim for denial of access to court.
ACCORDINGLY, it is hereby
RECOMMENDED, that Plaintiff's amended complaint (Dkt. No. 11) be DISMISSED WITH PREJUDICE as against Defendant Rust upon initial review for failure to state a claim; and it is further
RECOMMENDED that the Plaintiff's amended complaint be DISMISSED as against Defendant Culick, and that the dismissal be WITHOUT PREJUDICE, BUT WITHOUT LEAVE TO AMEND IN THIS ACTION as to his Fourteenth Amendment due process claim, and WITHOUT PREJUDICE AND WITH LEAVE TO AMEND as to his First Amendment access to courts claim.
ORDERED, that the Clerk provide Plaintiff with a copy of this Order and Report- Recommendation, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW . Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Dated: February 9, 2017
If you are proceeding pro se and are served with this report and recommendation/order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the report and recommendation/order was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge