3:12-cv-01030 | D. Conn. | Nov 27, 2012
Case 3:12-Cv-01030-.]BA Document 8 Filed 11/27/12 Page 1 of 9
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UNITED STATES DISTRICT COURT _55
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DISTRICT OF CONNECTICUT
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TYEHIMBA A. ADEYEMI,
Plaintiff,
PRISONER
v. CASE NO. 3:12-cv~1030(JBA)
COUNSELOR PALMIERI, et al.,
Defendants.
RULING AND.QBDER
The plaintiff, currently incarcerated at Corrigan-Radgowski
Correctional Institution in Uncasville, Connecticut, has filed a
complaint pro se under 42 U.S.C. § 1983. The plaintiff names
Counselor Palmieri, Mailroom Supervisor John or Jane Doe and
Attorney Kenneth Speyer as defendants.
Pursuant to 28 U.S.C. § 1915A(b), the Court must review
prisoner civil complaints against governmental actors and “dismiss
any portion of [a] complaint [that] is frivolous, malicious, or
fails to state a claim upon which relief may be granted,” or that
“seeks monetary relief from a defendant who is immune from such
relief.” Id. This requirement applies both where the inmate has
paid the filing fee and where he is proceeding in forma pauperis,
See Carr V. Dvorin, 171 F.3d 115" date_filed="1999-03-18" court="2d Cir." case_name="Peter L. Carr v. Jeffrey M. Dvorin, Assistant Nys Attorney General">171 F.3d 115 (2d Cir. 1999) (per curiam). Rule
8 of the Federal Rules of Civil Procedure requires that a complaint
contain “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
Case 3:12-Cv-01030-.]BA Document 8 Filed 11/27/12 Page 2 of 9
Although detailed allegations are not required, “a complaint
must contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face. 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" date_filed="2009-05-18" court="SCOTUS" case_name="Ashcroft v. Iqbal">556 U.S. 662, 678 (2009) (internal quotation marks and
citations omitted). A complaint that includes only “‘labels and
conclusions,’ ‘a formulaic recitation of the elements of a cause of
action' or ‘naked assertion[s]' devoid of ‘further factual
enhancement,’ ” does not meet the facial plausibility standard.
Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544" date_filed="2007-05-21" court="SCOTUS" case_name="Bell Atlantic Corp. v. Twombly">550 U.S. 544, 555, 557
(2007)). Although courts still have an obligation to liberally
construe a pro se complaint, see Harris V. Mills, 572 F.3d 66" date_filed="2009-07-09" court="2d Cir." case_name="Harris v. Mills">572 F.3d 66, 72
(2d Cir. 2009), the complaint must include sufficient factual
allegations to meet the standard of facial plausibility.
The plaintiff alleges that on January 19, 2010, he filed a
civil action in New Haven Superior Court against Department of
Correction officials regarding injuries he suffered when he fell in
the shower in a correctional facility. The plaintiff filed motions
and responded to motions. On April 26, 2010, the plaintiff was
transported to University of Connecticut Health Center for hip
replacement surgery. In May 2010, he received copies of two
motions to dismiss filed in the state court matter. The plaintiff
sent a letter to the clerk in the New Haven Superior Court
Case 3:12-Cv-01030-.]BA Document 8 Filed 11/27/12 Page 3 of 9
requesting an extension of time to respond to the motions to
dismiss. On July 7, 2010, the plaintiff filed a motion for
judgment on the pleadings and September 9, 2010, the plaintiff
filed a motion for default in the state case. On November 2, 2010,
the plaintiff sent a letter to the Chief Clerk in the New Haven
Superior Court seeking a status report. The plaintiff did not
receive a response to his motions or his letters.
On November 14, 2010, the plaintiff wrote to Attorney Kenneth
Speyer at the Inmates' Legal Assistance Program and asked him to
inquire about the status of his state case. On December 16, 2010,
the plaintiff spoke to Attorney Speyer on the telephone and learned
that his state case had been dismissed in June 2010. The Notice of
Dismissal had been mailed to the plaintiff at Cheshire Correctional
Institution. The plaintiff seeks monetary damages.
The plaintiff alleges that Attorney Speyer’s failure to
respond to his November 14, 2010, letter made it impossible for him
to meet a deadline for re-filing his case with the Office of the
Claims Commissioner. The plaintiff concedes that the New Haven
Superior Court did not return copies of his complaint, motions and
other documents until February 2011.
In order to state a claim for relief under section 1983 of the
Civil Rights Act; the plaintiff must satisfy a two-part test.
First, he must allege facts demonstrating that defendant acted
under color of state law. Second, he must allege facts
demonstrating that he has been deprived of a constitutionally or
Case 3:12-Cv-01030-.]BA Document 8 Filed 11/27/12 Page 4 of 9
federally protected right. See Lugar v. Edmondson Oil Co., 457
U.S. 922, 930 (1982); Washington v. James, 782 F.2d 1134" date_filed="1986-02-03" court="2d Cir." case_name="Albert Washington v. Charles James">782 F.2d 1134, 1138 (2d
Cir. 1986). In Lugar, the Supreme Court held that conduct
constitutes state action when a deprivation of rights is “caused by
the exercise of some right or privilege created by the State
or by a person for whom the State is responsible,” and “the party
charged with the deprivation [is] a person who may fairly be said
to be a state actor.” Id. at 937.
As a general rule, a public employee acts under color of state
law when he or she acts in his or her official capacity or
exercises his or her responsibilities pursuant to state law. See
West V. Atkins, 487 U.S. 42" date_filed="1988-06-20" court="SCOTUS" case_name="West v. Atkins">487 U.S. 42, 50 (1988). In Polk County v. Dodson,
454 U.S. 312" date_filed="1981-12-14" court="SCOTUS" case_name="Polk County v. Dodson">454 U.S. 312 (1981), the Supreme Court recognized an exception to
the general rule, “[A] public defender does not act under color of
state law when performing the traditional functions of counsel to a
criminal defendant." Id. at 317. See also Housand v. Heiman, 594
F.2d 923, 924-25 (2d Cir. 1979). The Court distinguished a public
defender from the typical state employee or state actor and noted
that “[w]hile performing his duties, the public defender retains
all of the essential attributes of a private attorney, including,
most importantly, his ‘professional independence,' which the State
is constitutionally obliged to respect.” West, 487 U.S. 42" date_filed="1988-06-20" court="SCOTUS" case_name="West v. Atkins">487 U.S. at 50
(quoting Polk County, 454 U.S. 312" date_filed="1981-12-14" court="SCOTUS" case_name="Polk County v. Dodson">454 U.S. at 321-22). In addition, “when
representing an indigent defendant in a state criminal proceeding,
the public defender does not act under color of state law for the
Case 3:12-Cv-01030-.]BA Document 8 Filed 11/27/12 Page 5 of 9
purposes of § 1983 because he ‘is not acting on behalf of the
State; he is the State's adversary.'” Id. (quoting Polk County,
454 U.S. 312" date_filed="1981-12-14" court="SCOTUS" case_name="Polk County v. Dodson">454 U.S. at 323 n.13). Similarly, attorneys appointed to represent
indigent litigants are not considered to be acting under color of
state law. See, e.g., Peavey v. Polytechnic Institute of New York,
775 F. Supp. 75" date_filed="1991-10-17" court="E.D.N.Y" case_name="Peavey v. Polytechnic Institute of New York">775 F. Supp. 75 (E.D.N.Y. 1991) (private attorney), aff’d, 969 F.2d
1042, cert. denied, 506 U.S. 922" date_filed="1992-10-13" court="SCOTUS" case_name="Cotten v. Cotten">506 U.S. 922 (1992); Neustein v. Orbach, 732 F.
Supp. 333 (E.D.N.Y. 1990) (Legal Aid attorney does not act under
color of state law (citing Lefcourt v. Legal Aid Society, 445 F.2d
1150, 1157 (2d Cir. 1971)).
Defendant Speyer is a private attorney who provides legal
assistance to Connecticut inmates pursuant to a contract with the
Connecticut Department of Correction. This Court has previously
held that attorneys working for ILAP pursuant to a contract with
the State of Connecticut to provide legal assistance to inmates
incarcerated in Connecticut in civil matters against the Department
of Correction are not state actors under section 1983. See
McCarthy v. Armstrong, et al., Case No. 3:96cv517 (PCD) (HBF) (D.
Conn. May 28, 1998) (ruling granting defendants’ motion to dismiss
civil rights complaint because Schulman not acting under color of
state law). See also McArthur v. Bell, 788 F. Supp. 706" date_filed="1992-04-06" court="E.D.N.Y" case_name="McArthur v. Bell">788 F. Supp. 706, 710, n.l
(E.D.N.Y. 1992) (holding that a private attorney generally is not
considered a state actor for purposes of section 1983) (citations
omitted).
Because Attorney Speyer was acting as a private attorney in
Case 3:12-Cv-01030-.]BA Document 8 Filed 11/27/12 Page 6 of 9
performing obligations under the contract with the Department of
Corrections, the court concludes he is not acting under color of
state law. Thus, the plaintiff has failed to state a claim upon
which relief may granted against Attorney Speyer.
The plaintiff alleges that he filed a civil action in the New
Haven Superior Court on January 19, 2010. See Adeyemi v. Alves, et
al., Case No. NNH-CV10-5033109-S (filed Jan. 19, 2010).l The
defendants moved to dismiss the action on March 4, 2010. The
docket reflects that the plaintiff filed two motions to dismiss on
March 19, 2010 and a motion to amend the complaint on April 8,
2010. A clerk docketed a motion for extension of time filed by the
plaintiff on May 26, 2010. The court granted the defendants’
motion to dismiss without prejudice on June 3, 2010. The court
noted that it lacked jurisdiction as a result of insufficiency of
service of the complaint on the defendants. On June 18, 2010, the
Clerk docketed a letter filed by the plaintiff. In August and
September 2010, the Clerk docketed motions for default and for
judgment filed by the plaintiff.
It is well settled that inmates have a First Amendment right
1 The docket sheet for this case may be found at:
http://civilinquiry.jud.ct.gov/CaseDetail/PublicCaseDetail.aspx?D
ocketNo=NNHCV105033109S (last visited November 14, 2012). The
court takes judicial notice of the docket sheet. See Kramer V.
Time Warner, Inc., 937 F.2d 767" date_filed="1991-06-27" court="2d Cir." case_name="Laurence Kramer v. Time Warner Inc.">937 F.2d 767, 774 (2d Cir.199l) (“[C]ourts
routinely take judicial notice of documents filed in other
courts”); In re Enron Corp., 379 B.R. 425" date_filed="2007-08-27" court="S.D.N.Y." case_name="Enron Corp. v. Springfield Associates, L.L.C. (In Re Enron Corp.)">379 B.R. 425, 431 n. 18
(S.D.N.Y.2007) (“Judicial notice of public records such as court
filings, is clearly appropriate.”).
6
Case 3:12-Cv-01030-.]BA Document 8 Filed 11/27/12 Page 7 of 9
of access to the courts. See Bounds v. Smith, 430 U.S. 817" date_filed="1977-04-27" court="SCOTUS" case_name="Bounds v. Smith">430 U.S. 817, 828
(1977) (modified on other grounds by Lewis v. Casey, 518 U.S. 343" date_filed="1996-06-24" court="SCOTUS" case_name="Lewis v. Casey">518 U.S. 343,
350 (1996)). To state a claim for denial of access to the courts,
the plaintiff is required to demonstrate that the defendants acted
deliberately and maliciously and that he suffered an actual injury.
See Lewis, 518 U.S. 343" date_filed="1996-06-24" court="SCOTUS" case_name="Lewis v. Casey">518 U.S. at 353. To establish an actual injury,
plaintiff must allege facts showing that the defendant took or was
responsible for actions that hindered his efforts to pursue a legal
claim, prejudiced one of his existing actions, or otherwise
actually interfered with his access to the courts. See Monsky v.
Moraghan, 127 F.3d 243" date_filed="1997-10-02" court="2d Cir." case_name="Barbara Monsky, for Herself and on Behalf of All Women Similarly Situated v. Honorable Howard J. Moraghan">127 F.3d 243, 247 (2d Cir. 2002)).
The plaintiff alleges that in May 2010, defendants Palmieri
and Doe did forward to him at UCONN Health Center copies of motions
to dismiss filed in his state case. The plaintiff claims that
Counselor Palmieri and Mailroom Supervisor Jane or John Doe
neglected to forward his legal mail to him during the month of June
2010. As a result, he did not find out that the court had granted
the defendants’ motion to dismiss until November 2010. The
plaintiff contends that at the time he found out that the case had
been dismissed, the deadline for filing a claim with the Office of
the Claims Commissioner had elapsed.
Allegations of negligence are not cognizable in a Section
1983 action. See Davidson v. Cannon, 474 U.S. 344" date_filed="1986-01-21" court="SCOTUS" case_name="Davidson v. Cannon">474 U.S. 344, 347-48 (1986)
(holding that negligence on the part of prison officials is
insufficient to establish liability under section 1983); Poe v.
7
Case 3:12-Cv-01030-.]BA Document 8 Filed 11/27/12 Page 8 of 9
Leonard, 282 F.3d 123" date_filed="2002-02-19" court="2d Cir." case_name="Peggy Poe v. John Leonard, Defendant-Third Party-Plaintiff-Appellant, Douglas Pearl, State of Connecticut, Third-Party-Defendant">282 F.3d 123, 145 (2d Cir. 2001) (“mere negligence is
insufficient as a matter of law to state a claim under section
1983”); Hayes v. New York City Dep’t of Corrections, 84 F.3d 614" date_filed="1996-05-24" court="2d Cir." case_name="Ronald Hayes v. New York City Department of Corrections">84 F.3d 614,
620 (2d Cir. 1996) (same). Thus, the claim that Mailroom
Supervisor Doe and Counsel Palmieri neglected to forward legal mail
to him in June 2010 does not state a claim upon which relief may be
granted.
Furthermore, the alleged failure of Defendants does not
constitute a denial of access to courts. The plaintiff claims that
he sent letters and motions to the court in July, September and
November 2010, but received no response from the Clerk. Defendants
Doe and Palmieri had no control Over the Clerk's failure to respond
to letters from the plaintiff about the status of his case. In
addition, the plaintiff does not assert that he attempted to call
the Connecticut Superior Court Clerk to find out the status of his
case after the Clerk failed to respond to his letters.
Furthermore, the Connecticut Superior Court Judge dismissed the
case without prejudice for failure to effect service of the
complaint. Thus, the plaintiff was not precluded from moving to
reopen the case or filing a new action. Accordingly, the claims
against defendants Palmieri and Doe are dismissed for failure to
state a claim upon which relief may be granted. See 28 U.S.C. §
1915A(b)(1).
ORDERS
The court enters the following orders:
Case 3:12-Cv-01030-.]BA Document 8 Filed 11/27/12 Page 9 of 9
(l) The federal claims against the defendants are DISMISSED
pursuant to 28 U.S.C. § 1915A(b)(l). The plaintiff's Motions for
Judgment on the Pleadings and for Summary Judgment [Docs. Nos. 5,
6] are DENIED as moot. The court declines to exercise supplemental
jurisdiction over any state law claims. See United Mine Workers v.
Gibbs, 383 U.S. 715" date_filed="1966-03-28" court="SCOTUS" case_name="United Mine Workers of America v. Gibbs">383 U.S. 715, 715-26 (1966) (holding that, where all federal
claims have been dismissed before trial, pendent state claims
should be dismissed without prejudice and left for resolution by
the state courts).
If the plaintiff chooses to appeal this decision, he may not
do so in forma pauperis, because such an appeal would not be taken
in good faith. See 28 U.S.C. § 1915(a)(3). The Clerk is directed
to enter judgment for the defendants and close this case.
(2) The Pro Se Prisoner Litigation Office shall send a
courtesy copy of the Complaint and this Order to the Connecticut
Attorney General and the Department of Correction Legal Affairs
Unit and a copy of this Ruling and Order to the plaintiff.
*r\.
so oRDERED at New Haven, connecticut this 7/{ day of
h§::b_, 2012.
/S/
ANE{ BOND ARTERTON
JNI`WD STATES DISTRICT JUDGE