Sousa v. Marquez
702 F.3d 124
2d Cir.2012Background
- Sousa, a former DEP employee, sues Marquez alleging backward-looking right-of-access to court claims based on alleged omissions in Marquez's investigative reports.
- Sousa previously litigated a retaliation/First Amendment suit against DEP personnel; prior rulings did not rely on Marquez's reports to grant summary judgment.
- Marquez, a DAS staff attorney, conducted an August 2004 investigation and produced reports denying workplace violence at DEP.
- Sousa obtained Marquez’s investigation notes via FOIA and contends omissions and distortions harmed the meritorious merits of his earlier case.
- District Court granted summary judgment in 2012, holding Sousa failed to show a cognizable right-of-access claim, because his access was not foreclosed and the prior ruling did not rely on Marquez’s reports.
- Court holds backward-looking claims are not cognizable here because Sousa knew the facts and could have discovered/exposed them in prior litigation, and the district court did not rely on Marquez’s reports in its 2010 decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether backward-looking right-of-access claim is cognizable. | Sousa argues the district court ignored Marquez's concealed evidence. | Marquez contends claims fail as Sousa had access to the courts and evidence. | Not cognizable; backward-looking claims require lack of access, which Sousa did not lack. |
| Whether Sousa adequately alleged injury from Marquez’s reports. | Sousa contends the 2010 decision relied on Marquez’s report. | District Court did not rely on Marquez’s reports in granting summary judgment. | No cognizable injury shown; district court did not rely on Marquez’s reports. |
| Whether Sousa could have exposed omissions through discovery. | Sousa needed discovery to prove deliberate omissions. | Discovery opportunities existed; failure to pursue does not create a right-of-access claim. | Discovery opportunities were available; failure does not state a claim. |
Key Cases Cited
- Christopher v. Harbury, 536 U.S. 403 (U.S. 2002) (backward-looking access claims discussed; underlying claim essential)
- Swekel v. City of River Rouge, 119 F.3d 1259 (6th Cir. 1997) (backward-looking access claims limited by prior knowledge of facts)
- Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984) (extreme cases where misconduct hollowed redress—limited scope)
- Broudy v. Mather, 460 F.3d 106 (D.C. Cir. 2006) (foreclosure of judicial remedy if facts known to plaintiff earlier)
- Chappell v. Rich, 340 F.3d 1279 (11th Cir. 2003) (knowledge of facts defeats backward-looking access claim)
- Ryland v. Shapiro, 708 F.2d 967 (5th Cir. 1983) (cited for knowledge-and-opportunity rationale)
- Harbury v. Christopher, 536 U.S. 403 (U.S. 2002) (origin of right-of-access framework; anticipatory statements by government)