Holmes v. Knipel et al

Filing 13

MEMORANDUM AND ORDER: Accordingly, the complaint is dismissed. Holmes' request for an order to show cause for a preliminary injunction and temporary restraining order is denied, (D.E. 4), as is his request for pro bono counsel, (D.E. 3, 7). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. Coppedge v. United States, 269 U.S. 438, 444-45 (1962). Ordered by Chief Judge Carol Bagley Amon on 12/29/2014. (fwd for judgment) (Fernandez, Erica)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

-------------------------.------------------------------------x

DAMON MARK HOLMES,
NOT FOR PUBLICATION
MEMORANDUM AND ORDER
14-CV-6018 (CBA)(LB)

Plaintiff,

-againstHON. LAWRENCE P. KNIPEL; JUDGE BARRY
KAMINS; CHARLES J. HYNES; MICHAEL
VECCIONE; AARON I. BLINDER; MORGAN J.
DENNEHY; MAGDALENA ST. SURIN,

FILED
IN CLERK'S OFFICE
U.S. DISTRl('T r:ni 'RT E.D.N.V.

*

DEC 3 0 2014

*

BROOKLYN OFFICE

Defendants.

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AMON, Chief United States District Judge.

On October 10, 2014, plaintiff Damon Mark Holmes filed this pro se complaint pursuant
to 42 U.S.C. § 1983. (Docket Entry ("D.E.") 1.) Holmes' submission did not include a filing fee
or Prisoner Authorization form. By letter dated October 31, 2014, he was provided with the
proper form and was instructed to either pay the filing fee or, in order to seek in forma pauperis
status, return the completed Prisoner Authorization form within fourteen days. (D.E. 6.) On
November 18, 2014, Holmes filed a Prisoner Authorization form and an amended complaint.
(D.E. 9-10.) A letter appended to the front of Holmes' amended complaint explained that he had
been transferred from Southport Correctional Facility to Attica Correctional Facility, which had
delayed the filing of his Prisoner Authorization Form. (D.E. 9.)
Holmes' request to proceed in forma pauperis, pursuant to 28 U.S.C. § 1915(a)(l), is
granted for the limited purpose of this order. His request for an order to show cause for a
preliminary injunction and temporary restraining order is denied, (D.E. 4), and his complaint is
dismissed. His request for pro bono counsel is likewise denied. (D.E. 3, 7.)

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BACKGROUND
In July 2007, Holmes requested '"any and all' records held in the Kings County [District
Attorney's] office" that related to his 1993 state court indictment. (Amended Complaint
("Comp!.") at 4.) 1 He made this demand pursuant to New York's Freedom oflnformation Law
("FOIL"). See N. Y. Pub. Off. L. § 87. Holmes was advised that the records would be made
available to him on January 23, 2008. (Comp!. at 4.) He subsequently requested a reduction of
that time period. His request was construed as an appeal and denied. (.!QJ About five months
later, he filed an action under Article 78 of the New York Civil Practice Law and Rules, seeking
enforcement of his FOIL request.Mat 4-5.) Holmes alleges that he did not receive any
response to his Article 78 filing until April 25, 2011, when he received an order reducing his
filing fee based on his financial status. (Id. at 5.)
Shortly thereafter, Holmes filed a motion for a default judgment, which "has never been
decided." (Id.) Two and a half years later, he sought information as to the status of his Article 78
proceeding and received notification, on January 15, 2014, that "'no proceeding pursuant to
Article 78 in December 2007 was on Court record, under plaintiffs name."' (Id. at 5-6.) The
following month, a state law clerk informed Holmes that his Article 78 action could not proceed
until he paid a reduced $25 filing fee. (Id. at 6.) Holmes states that, although he paid the reduced
filing fee on March 11, 2014, his Article 78 action has not gone forward. (Id. at 6-7.) Holmes
seeks, among other relief, (I) a declaration that the defendants' failure to disclose the records
that he demanded under FOIL violated his constitutional rights, (2) a court order requiring
disclosure of all the documents he previously requested under FOIL, and (3) money damages.
(Id. at 8-10.)
1

The pages of the amended complaint do not include page numbers. The Court begins pagination on the page
headed "Civil Rights Complaint."

2

STAND ARD 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
ofa 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.§ 1915A(b)(l)-(2); see also Liner v. Goord, 196 F.3d 132, 134 & n.1 (2d
Cir. 1999) (noting that PLRA makes sua sponte dismissal of frivolous prisoner complaints
mandatory, not merely permissive).
Further, under 28 U.S.C. § 1915(e)(2)(8), a district court shall dismiss an in forma
pauperis action where it is satisfied that the action "(i) is frivolous or malicious; (ii) fails to state
a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is
immune from such relief." Courts construe prose pleadings liberally, see Erickson v. Pardus,
551 U.S. 89, 94 (2007), particularly when they allege civil rights violations, see Sealed Plaintiff
v. Sealed Defendant #1, 537 F.3d 185, 191-93 (2d Cir. 2008).
DISCUSSION

Plaintiff's complaint fails because, as a matter of law, FOIL violations cannot give rise to
a colorable claim under 42 U.S.C. § 1983. To maintain a§ 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

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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. See Old St. George's
LLC v. Bianco, 389 F. App'x 33, 35 (2d Cir. 2010) (summary order) (affirming district court
dismissal of§ 1983 claim based on FOIL violation). Moreover, courts in this district have
repeatedly held that FOIL violations do not constitute federal constitutional claims sufficient to
satisfy the second prong of§ 1983. See,!<,&, McLean v. Brown, No. 08-cv-5200, 2010 WL
2609341, at *2-3, 7 (E.D.N.Y. June 25, 2010) (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).
Furthermore, FOIL does not give rise to a private cause of action for money damages. See JennChing Luo v. Baldwin Union Free Sch. Dist., No. 12-cv-6054, 2013 WL 4719090, at *3
(E.D.N.Y. Sept. 3, 2013).
Here, Holmes' complaint fails for the simple reason that he cannot make out a colorable
claim under§ 1983 on the basis of the FOIL violation alleged in the instant case. The complaint,
therefore, does not satisfy the second prong of§ 1983 and is dismissed for failing to state a claim
upon which relief may be granted. 28 U.S.C. § 1915A(b)(l). The Court notes, however, that
nothing in this Order precludes Holmes from seeking further relief in New York state court or
before any relevant New York state administrative body.

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CONCLUSION

Accordingly, the complaint is dismissed. Holmes' request for an order to show cause for
a preliminary injunction and temporary restraining order is denied, (D.E. 4), as is his request for
pro bono counsel, (D.E. 3, 7). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any
appeal would not be taken in good faith and therefore in forma pauperis status is denied for
purpose of an appeal. Coppedge v. United States, 269 U.S. 438, 444-45 (1962).

SO ORDERED.

s/Carol Bagley Amon
Carol Bagley Afo~n'
Chief United S~s District Judge

Dated: Brooklyn, New York
December J-1•2014

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