Opinion
No. 07-2521-pr.
February 10, 2009.
Appeal from the United States District Court for the Southern District of New York (Swain, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the orders of said District Court be and they hereby are AFFIRMED.
Appearing for Appellant: Blake Wingate, pro se, E. Elmhurst, NY.
Appearing for Appellees: Michael A. Cardozo, Corporation Counsel of the City of New York, Fay Ng, Assistant Corporation Counsel, New York, NY, for the New York City appellees; Andrew M. Cuomo, Attorney General of the State of New York, Barbara D. Underwood, Solicitor General, Michael S. Belohlavek, Senior Counsel, Division of Appeals Opinions, Patrick J. Walsh, Assistant Solicitor General, New York, NY, for the New York State appellees; Michael J. Garcia, United States Attorney for the Southern District of New York, Emily E. Daughtry, Special Assistant United States Attorney, Ross E. Morrison, Assistant United States Attorney,for the federal appellees.
Blake Wingate filed a civil rights action against (1) Commissioner Horn of the New York City Department of Corrections, Grievance Coordinators Pauline Mimms and Mr. Robinson, and Stanley Kreitman, the former chair of the New York City Board of Correction (collectively, "NYC DOCS defendants"); (2) the New York City Board of Elections and its Commissioner and members (collectively, "NYC BOE defendants"); (3) Commissioner Croce of the New York State Commission of Correction, and the New York State Board of Elections and its Commissioner and members (collectively, "State defendants"); and (4) the Federal Election Commission ("FEC"), and its Commissioners and employees (collectively, "FEC defendants"). Wingate appeals from orders of the District Court that (1) granted summary judgment to the FEC defendants, State defendants, and NYC BOE defendants; (2) granted partial summary judgment to the NYC DOCS defendants; (3) approved a stipulation between the parties dismissing with prejudice Wingate's remaining claims against the NYC DOCS defendants; and (4) denied reconsideration. We assume the parties' familiarity with the facts, procedural background, and specification of issues on appeal.
Because the FEC defendants offered an affidavit establishing that the FEC's authority was limited to campaign finance and did not extend to supervising elections and Wingate provided only conclusory allegations that the FEC's authority and responsibility extended to ensuring that pre-trial detainees in local facilities were allowed to vote, the District Court correctly granted summary judgment dismissing Wingate's claims against the FEC defendants. See Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993) (holding that in opposing summary judgment, a party "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible").
Wingate's right-to-vote claims against all the defendants are also barred by Supreme Court precedent. Unless a detainee is able to demonstrate that he is completely barred from voting, an equal protection challenge to diminished access to voting must fail if the defendant's provisions for voting by detainees are rationally related to a legitimate state end. See McDonald v. Bd. of Election Comm'rs, 394 U.S. 802, 808-09 (1969). In this case, the NYC DOCS defendants provided inmates with information regarding voting, application forms, and instructions as to deadlines and procedures for filing absentee ballot applications. Refusing to set up voting booths and provide monitors in detention facilities — the remedy that Wingate seeks — is rationally related to controlling the expenses of an election. Therefore, while the provision of additional benefits, such as on-site voting, may have been helpful to detainees, Wingate, who was detained prior to the deadline for filing an absentee ballot application, cannot sustain an equal protection claim.
Wingate also claims that Croce, Kreitman, and Horn failed to investigate or respond to his letters of complaint concerning denial of his right to vote. To the extent Croce was sued in his official capacity, he was not a person within the meaning of Section 1983 and thus not subject to suit. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). Assuming that defendants were sued in their individual capacities, Wingate failed to show the personal involvement of any defendant in a constitutional deprivation. Therefore, Croce, Kreitman, and Horn cannot be liable under Section 1983.See Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994).
The District Court did not abuse its discretion by denying Wingate's motion to reopen as Wingate's proffered new evidence did not concern the 2004 election that was the subject of his claims. See Transaero, Inc. v. La Fuerza Aerea Boliviana, 162 F.3d 724, 729 (2d Cir. 1998) (explaining abuse of discretion standard).
We do not consider Wingate's claims against defendants Pauline Mimms or Mr. Robinson because those defendants were never served. Further, because Wingate has not requested that the District Court vacate the order approving the settlement agreement or award him attorney's fees, we do not reach those claims. See Singleton v. Wulff, 428 U.S. 106, 120-21 (1976).
We have considered all of Wingate's remaining arguments and found them to lack merit. We, therefore, affirm the orders from which an appeal was taken. Wingate has also made various requests to the court while his appeal was pending and has denominated at least one of these requests as a motion. We deny all pending requests as moot.