Geer v. Pheffer et al
MEMORANDUM AND ORDER: Plaintiff Pakenauth Geer, currently incarcerated at Washington Correctional Facility, in Comstock, N.Y., brings this pro se complaint, under 42 U.S.C. § 1983. Plaintiff's request for in forma pauperis status, pursuant to 28 U.S.C. § 1915, is granted for the limited purpose of this order. For the reasons set forth below, plaintiff's complaint is dismissed for failure to state a claim upon which relief may be granted. Ordered by Chief Judge Carol Bagley Amon on 1/22/2015. c/m to pro se pltf. (Fernandez, Erica)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
NOT FOR PUBLICATION
MEMORANDUM & ORDER
I~ fLERK'S OFFICE
U.S. D ~' RICT COURT E D
AUDREY I. PHEFFER, Chief Clerk;
JACK WARSA WSKY, District Attorney,
CATHERINE H. TABINSKY, Court Reporter,
JAN 2 3 2014
AMON, Chief United States District Judge:
Plaintiff Pakenauth Geer, currently incarcerated at Washington Correctional Facility, in
Comstock, N.Y., brings this prose complaint, under 42 U.S.C. § 1983. Plaintiffs request for in
forma pauperis status, pursuant to 28 U.S.C. § 1915, is granted for the limited purpose of this
order. For the reasons set forth below, plaintiffs complaint is dismissed for failure to state a
claim upon which relief may be granted. 1
Plaintiff alleges that, on April 4, 2005, he was sentenced - apparently in New York state
court-to a "12-17 years split bid, with parole release within (5 years)." (Complaint ("Comp!.") at
4.) Plaintiffs complaint sets forth three claims, which arise out of alleged actions by state
On February 28, 2014, plaintiff filed an action pursuant to 42 U.S.C. § 1983 against the same
defendants making similar factual allegations. Plaintiff's submission failed to include the filing fee or a
completed in forrna pauperis application. By letter entered March 5, 2014, plaintiff was provided with
the proper form and was instructed that, in order to proceed, he had to return the completed in forrna
pauperis application to the Court. Plaintiff failed to do so, and the Court dismissed the matter on May 9,
2014. See Geer v. Pheffer, No. 14-cv-1447.
officials subsequent to the imposition of that sentence. First, he alleges that Audrey Pheffer identified as "chief clerk at [the] Queens County Clerk's office" - violated unspecified rights
under the United States Constitution by refusing to provide him with copies of documents relating
to his sentencing and imprisonment. (Comp!. at 4-5, 11-13, 16-18.) Based on the complaint and
correspondences included as part of it, plaintiff appears to have filed requests for these documents
based on two distinct freedom of information regimes. Plaintiff made one request pursuant to
New York's state Freedom oflnformation Law ("FOIL"), under N.Y. Pub. Off. Law§ 87.
(Comp!. at 4, 11-13.) He made a second pursuant to the federal Freedom oflnformation Act
("FOIA"), under 5 U.S.C. § 552. (Comp!. at 5, 12-13.) The office appears to have responded that
his sentencing and commitment papers could be viewed but not copied. (Comp!. at 16-17.)
Second, plaintiff alleges that Jack Warsawksy, as a member of the Queens District
Attorney's Office, induced court reporter Catherine Tabinsky to falsify a transcript in plaintiffs
case. (Comp!. at 4-5.) That, plaintiff claims, resulted in the extension of his sentence to seventeen
years. (Comp!. at 4.) Plaintiff remains in prison even though, according to plaintiff, his April 4,
2005, sentence contemplated release on parole after five years, which due in part to time served in
pre-trial detention, would have led to plaintiffs release in 2006. (Id.)
Plaintiff asks that the Court: (I) order state officials to comply with his FOIL and FOIA
requests; (2) order him released from his allegedly "illegal imprisonment"; and (3) award him
monetary damages totaling $10 million on the basis of that illegal imprisonment. (Comp!. at 5.)
Standard of Review
Under the Prison Litigation Reform Act ("PLRA"), a district court "shall review, before
docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil
action in which a prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity." 28 U.S.C. § 1915A. Upon review, a district court shall dismiss a prisoner's
complaint sua sponte if the complaint is "frivolous, malicious, or fails to state a claim upon which
relief may be granted; or seeks monetary relief from a defendant who is immune from such relief."
Id.; Liner v. Goord, 196 F .3d 132, 134 & n. I (2d Cir. 1999) (noting that sua sponte dismissal of
frivolous prisoner complaints, pursuant to the PLRA, is not only permitted but mandatory); see
also Tapia-Ortiz v. Winter, 185 F.3d 8, 11 (2d Cir. 1999).
Moreover, at the pleadings stage of the proceeding, the Court must assume the truth of "all
well-pleaded, nonconclusory factual allegations" in the complaint. Kiobel v. Royal Dutch
Petroleum Co., 621F.3d111, 123 (2d Cir. 2010) (citing Ashcroft v. Igbal. 556 U.S. 662 (2009)).
A complaint must plead sufficient facts to "state a claim to relief that is plausible on its face." Bell
At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
It is axiomatic that pro se complaints are held to less stringent standards than pleadings
drafted by attorneys, and the Court is required to construe the plaintiffs pro se complaint liberally
and interpret it raising the strongest arguments it fairly suggests. Erickson v. Pardus, 551 U.S. 89,
94 (2007); Hughes v. Rowe, 449 U.S. 5, 9 (1980). Liberal construction is particularly important
when a prose litigant's pleadings allege civil rights violations. Sealed Plaintiffv. Sealed
Defendant #1, 537 F.3d 185, 191-93 (2d Cir. 2008). Finally, a prose complaint should not be
dismissed without granting a pro se plaintiff leave to amend "at least once when a liberal reading
of the complaint gives any indication that a valid claim might be stated." Gomez v. USAA Fed.
Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (internal quotation marks omitted).
1. FOIA and FOIL Requests
Plaintiff's freedom of information claim, as pleaded, is a component of the plaintiffs
Section 1983 claim. However, given the Court's responsibility to construe a prose complaint
liberally, the Court first evaluates this claim as if it were a standalone claim pursuant to FOIA and
FOIL. On that interpretation, this part of plaintiffs complaint fails.
First, FOIA only authorizes suits against federal agencies and does not apply to individual
officers or state agencies. See 5 U.S.C. §§ 551(1), 552(a)(4)(B), (f) (authorizing a private right of
action against a non-compliant "agency," the definition of which includes neither an individual
official nor a state agency); see also Grand Cent. Partnership, Inc. v. Cuomo, 166 F.3d 473, 484
(2d Cir.1999) (denying FOIA relief against an individual city official and stating that "it is beyond
question that FOIA applies only to federal and not to state agencies"). Second, although FOIL is
the right vehicle for a state agency documents request, federal district courts lack jurisdiction to
decide whether a defendant's actions violated FOIL. See Schuloffv. Fields, 950 F. Supp. 66, 67
(E.D.N.Y. 1997). The appropriate way to bring such a claim is "a state court proceeding pursuant
to N.Y. C.P.L.R. Article 78 upon exhaustion of administrative remedies."' Luo v. Baldwin Union
Free Sch. Dist., No. 12-cv-6054, 2013 WL 4719090, at *4 (E.D.N.Y. Sept. 3, 2013) (internal
quotation marks omitted) (quoting Schuloff, 950 F. Supp. at 67-68); see also N.Y. Pub. Off. Law
§ 89(4)(b) (laying out appeals procedure).
Here, plaintiffs FOIA claim fails because defendant Pheffer is not a federal agency but an
The "administrative remedies" typically involve a resort to the allegedly non-compliant
agency's appeals body. See McLean v. Brown, No. 08-cv-5200, 2010 WL 2609341, at *7
(E.D.N.Y. June 25, 2010).
individual employed by a state agency. See Grand Cent. Partnership, 166 F.3d at 484. Plaintiff's
FOIL claim fails because this Court lacks jurisdiction over it. 3 See Schuloff, 950 F. Supp. at 67.
Therefore, to the extent that plaintiff's complaint arises solely under FOIA or FOIL, as
distinguished from a Section 1983 violation, it is dismissed because it fails to state a claim upon
which relief may be granted. 28 U.S.C. § 1915A(b)(l).
2. Section 1983 and FOIL
Plaintiffs freedom of information requests fare no better when interpreted as predicates
for his Section 1983 claim. That is because, as a matter of law, FOIL violations do not give rise to
a colorable claim under 42 U.S.C. § 1983.4 To maintain a Section 1983 action, plaintiff must
allege that the conduct at issue: ( 1) was "committed by a person acting under color of state law"
and (2) "deprived [plaintiff] of rights, privileges, or immunities secured by the Constitution or
laws of the United States." Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) (quoting Pitchell v.
Callan, 13 F.3d 545, 547 (2d Cir. 1994)) (internal quotation marks omitted). Section 1983 "does
not create a federal right or benefit; it simply provides a mechanism for enforcing a right or
benefit established elsewhere." Morris-Hayes v. Bd. of Educ. of Chester Union Free Sch. Dist.,
423 F.3d 153, 159 (2d Cir. 2005) (citing Okla. City v. Tuttle. 471 U.S. 808, 816 (1985)).
"[A) violation of state law is not cognizable under §1983." Pollnow v. Glennon, 757 F.2d
496, 501 (2d Cir. 1985). FOIL violations are no exception to that rule. Old St. George's LLC v.
However, nothing in this order prevents the plaintiff from pursuing his FOIL claim
through the state administrative appeals process and, if necessary, an Article 78 proceeding.
FOIA non-compliance is immaterial to a Section 1983 claim because FOIA, as noted in
the prior section, only applies to federal agencies. See Reed v. Medford Fire Dep't.. Inc., 806 F.
Supp. 2d 594, 607 (E.D.N.Y. 2011). Therefore, defendant Pheffer could not have violated any of
plaintiffs rights based on her response to plaintiffs FOIA request.
Bianco, 389 F. App'x 33, 35 (2d Cir. 2010). Moreover, courts in this district have repeatedly held
that FOIL violations do not constitute federal constitutional claims sufficient to satisfy the second
prong of Section 1983. See,~, Luo, 2013 WL 4719090, at *4 (holding that FOIL violations do
not violate First Amendment); McLean, 2010 WL 2609341, at *2-3, 7 (finding, in due process
challenge, that FOIL procedures are not "fundamentally unfair" on their face and that a nearly six
year delay in disclosing documents did not imbue alleged FOIL violation with constitutional
significance); Blount v. Brown, No. 10-cv-1548, 2010 WL 1945858, at *2 (E.D.N.Y. May 11,
2010) (holding that plaintiffs, in procedural due process context, have no property interest in FOIL
documents); Schuloff, 950 F. Supp. at 68 (FOIL requests cannot implicate First Amendment
because it "does not encompass the right to compel a speaker to speak or otherwise provide
information and ideas.")
Here, plaintiff states that defendant Pheffer's failure to comply with his FOIL request
violated his "Federal Rights" under "the United States Constitution."' (Comp!. at 5.) He does not
specify to which rights he is referring. Efforts in Section 1983 cases to link FOIL violations to
federal rights violations have repeatedly and uniformly failed to persuade courts in this district.
That includes cases involving what appear to be fairly egregious FOIL violations. See McLean,
2010 WL 2609341, at *2-3, 7 (six year delay in disclosing FOIL documents to prisoner). Nothing
Plaintiff claims that defendant Pheffer's alleged failure to comply with his FOIL request
violates "section 2255," (Comp!. at 5), likely a reference to 28 U.S.C. § 2255. That statute is
wholly inapplicable to plaintiffs situation. It applies only to prisoners sentenced under federal
law by a federal court. 28 U.S.C. § 2255(a). Plaintiff was sentenced under state law by a state
court. (See Comp!. at 14-15.) Even if plaintiff intended to refer to the state custody habeas
statute, an order requiring a state official to comply with a FOIL request - if granted - would not
constitute a remedy under that statute. See 28 U.S.C. § 2254; see also Section 3, infra.
in plaintiffs complaint suggests that his FOIL-related claim is distinguishable from past cases.
The complaint, therefore, does not satisfy the second prong of Section 1983 and is dismissed for
failing to state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b)(l).
3. Section 1983 and Illegal Imprisonment
Insofar as plaintiff seeks relief from his allegedly illegal imprisonment, his complaint must
be dismissed. Construed broadly, plaintiffs complaint may be read to seek relief in the form of
release from Washington Correctional Facility or money damages. (Comp!. at 5.) United States
Supreme Court precedent forecloses either form of relief.
In Preiser v. Rodriguez, the Supreme Court held that Section 1983 is not a proper means
for a state prisoner to "challeng[e] the very fact or duration of ... physical imprisonment," as
opposed to the conditions of his imprisonment. 411U.S.475, 499-500 (1973); see also Poventud
v. City of New York, 750 F.3d 121, 128 (2d Cir. 2014) (outlining Preiser doctrine). For such
challenges, the "sole federal remedy is a writ of habeas corpus." Abdul-Hakeem v. Koehler, 910
F.2d 66, 69 (2d Cir. 1990) (quoting Preiser, 411 U.S. at 500) (internal quotation marks omitted).
Subsequently, in Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held further that a
Section 1983 suit for money damages grounded in an allegedly unlawful criminal sentence must
comply with what has come to be called the "favorable termination" rule. See Foster v. Diop, No.
l l-cv-4731, 2013 WL 1339408, at *7 (E.D.N.Y. Mar. 31, 2013) (citing Peralta v. Vasquez, 467
F.3d 98, 100 (2d Cir. 2006)). That rule states:
[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for
In fact, it seems from materials included as part of plaintiffs complaint, that the Queens
County Clerk's Office has responded to plaintiffs request and alerted him to the fact that the
requested documents "may be viewed but not copied." (Comp!. at 16-20.)
other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a
§ 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28
u.s.c. § 2254.
Peralta, 467 F.3d at 102 (quoting Heck, 512 U.S. at 486-87). Heck tasked district courts with
deciding, when a state prisoner seeks damages under Section 1983, whether a favorable judgment
"would necessarily imply the invalidity of his conviction or sentence .... " Id. at 102 (quoting
Heck, 512 U.S. at 487). If so, dismissal is required, unless the plaintiff can show that his
conviction or sentence has already been invalidated. On the other hand, Heck is no bar to suit if a
successful Section 1983 damages claim would not necessarily imply that his conviction or
sentence was invalid. Id.
To the extent plaintiff seeks release from prison, he must file a federal habeas petition,
pursuant to 28 U.S.C. § 2254. 7 As for money damages, the plaintiffs core contention is that his
imprisonment is illegal and that his sentence is the product of a fraud perpetrated by defendants
Warsawsky and Tabinsky. (Comp!. at 4-5 (On the basis of documents allegedly falsified by these
defendants, "my sentence [was] change[d] behind my back by an unknown illegitimate judge and
that's how I'm in jail illegally .... ").) The Court, therefore, finds that, should plaintiffs Section
1983 claim succeed, it would "necessarily imply the invalidity" of his sentence. See Heck, 512
U.S. at 487. The only way for plaintiffs claim to survive is for him to show that his conviction or
sentence has already been invalidated in one of the ways set forth in Heck. Id. at 486-87. Plaintiff
Since filing the instant suit, plaintiff has sought a writ of habeas corpus before this
Court. The petition was filed September 4, 2014, and has not yet been adjudicated. See Geer v.
People of the State ofNew York, No. 14-cv-5216. This order does not affect or make any
representation as to the merit of plaintiffs habeas petition.
has not put forth any allegations to that effect. Accordingly, his claim must be dismissed for
failure to state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b)(l).
Plaintiffs complaint is dismissed for failure to state a claim upon which relief may be
granted. 28 U.S.C. § 1915A(b)(l). The Court does not grant leave to amend because the
complaint, even when liberally construed, fails to give "any indication that a valid claim might be
stated" in this particular case. See Gomez, 171 F.3d at 795. However, that does not mean plaintiff
is without recourse. With respect to his FOIL request, it bears emphasizing that nothing in this
order precludes plaintiff challenging the response to his request through the administrative appeals
processes or Article 78 proceedings referenced above. See Section 1, supra. Moreover, as to
claims arising from plaintiffs sentencing and imprisonment, he has already filed a habeas petition
and nothing in this order impedes his ability to pursue that avenue of relief. See Geer v. People of
the State of New York, No. l 4-cv-5216. Moreover, should plaintiff succeed in invalidating his
sentence, a valid Section 1983 claim for money damages may arise at a later date. See Heck, 512
U.S. at 486-87.
The Court certifies, pursuant to 28 U.S.C. § l 915(a)(3), that any appeal from this order
would not be taken in good faith and therefore in forma pauperis status is denied for the purpose
of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
s/Carol Bagley Amon
- Carol BaglefA~
- Chief United States District Judge
Dated: Brooklyn, New York
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