Opinion
12 Civ. 7404 (GBD)
02-11-2013
ANTHONY BRIAN MALLGREN, Plaintiff, v. NEW YORK STATE SUPREME COURT, JAMES A. ROSSETTI, CAPTAIN OF SECURITY, Defendants.
MEMORANDUM DECISION AND ORDER
:
Pro se Plaintiff Anthony Brian Mallgren filed his initial complaint in this Court on October 2, 2012, alleging unconstitutional denial of access to the state courts. Plaintiff alleged that the clerk of the New York Supreme Court prevented him from filing an appeal because Plaintiff did not attach an affirmation of service to his filing. Plaintiff alleged that this was not only improper, but that it rose to the level of an unconstitutional barrier because Plaintiff had properly served his opponent electronically in accordance with the First Department's rules for electronic filing, 22 N.Y.C.R.R. § 202.5b.
This Court issued an Order to Amend on January 8, 2013. (Dkt. No. 7). In it, this Court ordered Plaintiff to include in his amended complaint, inter alia, facts sufficient to plead compliance with "the filing requirements set forth in 22 N.Y.C.R.R. § 202.5(d)(1) [concerning the requirements for traditional paper-filing]; or, if the Plaintiff's case was an electronic case, whether the Plaintiff complied with filing and service requirements set forth in 22 N.Y.C.R.R. § 202.5b(d), (f)." Dkt. No. 7 at 5. Absent pleading facts consistent with such compliance, this Court could not draw the inference that the Plaintiff suffered "actual injury," because if Plaintiff did not fully comply with the First Department's filing requirements, then the clerk's decision to deny Plaintiff's filing may well have been legitimate, and certainly not unconstitutional. See Lewis v. Casey, 518 U.S. 343, 349 (1996) (stating that for a denial of access to courts claim requires "actual injury"). If the clerk's actions were legitimate, then Plaintiff cannot state a claim upon which relief can be granted. Plaintiff filed his amended complaint on February 1, 2013.
This Court has the authority to screen sua sponte a complaint filed in forma pauperis at any time, and must dismiss the complaint if it fails to state a claim upon which relief can be granted. 28 U.S.C. § 1915(e)(2)(B); Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). Although the law mandates dismissal if Plaintiff's complaint fails to state a claim, this Court is obligated to construe a pro se complaint liberally and interpret it to raise the strongest claims it suggests. Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006).
Plaintiff's amended complaint must be dismissed because it does not demonstrate that he complied with the First Department's filing requirements (electronic or otherwise). Section 202.5b states that a party can only accomplish service upon other parties electronically if those other parties have consented to receive documents electronically. 22 N.Y.C.R.R. § 202.5(b)(2)(i). To obtain consent, a party must submit a document stating "that the party providing it agrees to the use of e-filing in the action and to be bound by the filing and service provisions in this section." Id. at § 202.5(b)(2)(ii). "Documents may be filed or served electronically only by a person who has registered as an authorized e-filing user." Id. at § 202.5b(c)(1).
The Rules also contemplate that all electronic filing and service should take place through the New York state court system's electronic filing database, NYSCEF. The portion of the rules concerning "how service is made" states "[w]here parties to an action have consented to e-filing, . . .the NYSCEF site shall automatically transmit electronic notification to all e-mail service addresses in such action. . . . The electronic transmission of the notification shall constitute service of the document on the e-mail service addresses identified therein." Id. § 202.5b(f)(2)(ii). "A party may, however, utilize other service methods permitted by the CPLR provided that, if one of such other methods is used, proof of service shall be filed electronically." Id.
Plaintiff's amended complaint undercuts any contention that he complied with these electronic filing requirements. Plaintiff does not claim that the party upon which he had supposedly effected service ever consented to receive service electronically. Nor does Plaintiff plead that he ever registered himself as an authorized e-filing user. Without consent or registration, it is not possible for Plaintiff to have properly served papers electronically on his opponent in a way that complied with § 202.5b. Further, if Plaintiff's state court action had been subject to electronic filing, then not only would he have had to properly serve his documents electronically, but he would have been required to file his documents electronically. Id. § 202.5b(d)(1) (requiring all documents in electronic filing actions to be served and filed electronically) (emphasis added). Although Plaintiff would have been required to file his documents electronically, he nonetheless came to the court to file them in person, which undermines his claim to have fully complied with the First Department's electronic filing requirements.
The only factual support Plaintiff offers to demonstrate service is an email he sent to his opponent's counsel that provided a link to "the documents thus far." This email, alone, does not demonstrate compliance as required by New York law, or this Court's Order, as it does not demonstrate consent by Plaintiff's opponent to receive service electronically or that Plaintiff had registered as an electronic filer. As service by personal email is a mode of filing outside the prevue of NYSCEF, Plaintiff would have had to electronically file a proof of service, which he never claims to have done. As Plaintiff concedes that he did not serve his opponent in the traditional manner (nor did he file an affirmation to that effect), the clerk of the court appears to have acted legitimately—most certainly not unconstitutionally—when he rejected Plaintiff's filing. Plaintiff's amended complaint fails to state a claim for unconstitutional denial of access to the courts and must be dismissed.
Plaintiff's underlying state court action, that is the subject of his appeal, is against Mayor Michael Bloomberg and Bloomberg L.P. for negligence and fraudulent misrepresentation, apparently based on a generalized conflict of interest between Bloomberg's job as mayor and his interest in his company, Bloomberg L.P. Plaintiff alleges that he suffered mental anxiety and emotional distress as a result of this alleged conflict of interest. --------
Conclusion
Plaintiff's complaint is DISMISSED. As Plaintiff has already had an opportunity to amend his complaint and has demonstrated that he cannot make out his cause of action, further amendment would be futile, and his complaint is dismissed with prejudice. The Clerk of the Court is directed to close all outstanding motions and this case. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, thus in forma pauperis status is denied for purposes of appeal. See Coppedge v. United States, 369 U.S. 438, 444 (1962). Dated: February 11, 2013
New York, New York
SO ORDERED:
/s/_________
GEORGE B. DANIELS
United States District Judge