Fox v. Hobbie et al

Filing 22

MEMORANDUM-DECISION and ORDERED, that Defendants Motion (Dkt. No. 5) to dismiss is GRANTED in part, as to the dismissal of Plaintiffs claims against Defendants Hobbie, Lamont, Zurek, Liddy, and the Oneida County Jail; and DENIED in part, as to Plaint iffs claim against Harris; and it is further ORDERED, that the Clerk terminate Edna P. Hobbie, Anne Lamont, Lt. Zurek, Chief Liddy, and the Oneida County Jail are terminated as Defendants in this action. Signed by Senior Judge Lawrence E. Kahn on March 18, 2016.***A copy of this order was served upon the pro se plaintiff by regular US mail. (sas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JAVELL FOX,
Plaintiff,
-against-

6:15-cv-0616 (LEK/ATB)

EDNA P. HOBBIE, et al.,
Defendants.

MEMORANDUM-DECISION and ORDER
I.

INTRODUCTION
Pro se Plaintiff Javell Fox (“Plaintiff”) commenced the present action against Defendants

Edna P. Hobbie (“Hobbie”), Anne Lamont (“Lamont”), Sergeant Harris (“Harris”), Lieutenant
Zurek (“Zurek”), Chief Liddy (“Liddy”), and the Oneida County Jail (the “Jail”) (collectively
“Defendants”) in Oneida County Supreme Court pursuant to 42 U.S.C. § 1983. Dkt. No. 2
(“Complaint”). Defendants removed the case to the Northern District on May 20, 2015. Dkt. No. 1
(“Notice of Removal”). Presently before the Court is Defendants’ unopposed Motion to dismiss.
Dkt. Nos. 5 (“Motion”); 5-3 (“Memorandum”). For the following reasons, the Motion is granted in
part and denied in part.

II.

BACKGROUND1
Plaintiff is currently incarcerated pursuant to a 2012 conviction. Compl. ¶¶ 1, 3.2 Plaintiff

claims that during the pendency of his criminal proceedings, he was denied access to his legal
papers. Id. ¶ 2. He notes that Lamont informed him on February 23, 2012 that he could not have
his legal work as Hobbie was not present. Id. Furthermore, his legal papers were subject to review
by Harris, who was working pursuant to regulations from Zurek and Liddy. Id. Plaintiff cites
restrictions to “one case . . . per day” as well as blanket review of all papers, claiming that it took
thirty days to get a notary and two weeks to receive legal materials. Id. Plaintiff also broadly states
that “there is no physical access to the law library” and alleges incompetence on the part of the
clerks. Id. ¶ 3.
Plaintiff commenced the instant action on March 9, 2015 in Oneida County Supreme Court,
alleging a deprivation of his constitutional right of access to the courts. Notice Removal ¶ 1;

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Because this case is before the Court on a motion to dismiss for failure to state a claim, the
allegations of the Complaint are accepted as true and form the basis of this section. See Boyd v.
Nationwide Mut. Ins. Co., 208 F.3d 406, 408 (2d Cir. 2000); see also Matson v. Bd. of Educ., 631
F.3d 57, 72 (2d Cir. 2011) (noting that, in addressing a motion to dismiss, a court must view a
plaintiff’s factual allegations “in a light most favorable to the plaintiff and draw[ ] all reasonable
inferences in her favor”). Furthermore, as Plaintiff is proceeding pro se, the Complaint “must be
construed liberally and interpreted to raise the strongest arguments that they suggest.” Sykes v.
Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 474 (2d Cir. 2006)).
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Neither party has pleaded the underlying facts of Plaintiff’s conviction, so the Court will
take judicial notice of Plaintiff’s records on the Department of Corrections and Community
Supervision (“DOCCS”) website, where Plaintiff’s current term of confinement is listed under DIN
12B1626. See Inmate Information, N.Y. Dep’t of Corr. & Community Supervision,
http://nysdoccslookup.doccs.ny.gov (last visited Mar. 15, 2016). It appears that Plaintiff was
returned from parole and convicted of criminal possession of a controlled substance in the third
degree and in the fourth degree. Id. Plaintiff has been housed in the state system since June 1,
2012, eleven days after the sentencing date pleaded in his Complaint. Id.
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Compl. at 6.3 Defendants then removed the case to the Northern District based on its federal
question jurisdiction on May 20, 2015. Notice Removal ¶ 4. Defendants filed a Motion to dismiss
on May 25, 2015. Mot. Defendants state that Plaintiff’s representation by a public defender renders
Plaintiff’s claim noncognizable. Mem. at 7-8.4 Defendants also note that personal involvement has
not been sufficiently pleaded on the part of any named defendant and that liability on the part of the
Oneida County Jail is subject to Monell v. Department of Social Services, 436 U.S. 658 (1978),
which Plaintiff has not addressed. Id. at 9-10.
III.

DISCUSSION
A. Representation by Appointed Counsel
Prisoners “have a constitutional right of access to the courts.” Bourdon v. Loughren, 386

F.3d 88, 92 (2d Cir. 2004) (quoting Bounds v. Smith, 430 U.S. 817, 821 (1977)). This right,
however, is not “an abstract, freestanding right to a law library or legal assistance.” Lewis v. Casey,
518 U.S. 343, 351 (1996). “The point is to provide prisoners with the tools” to present their claims
to the courts. Bourdon, 386 F.3d at 93. Defendants, to show that Plaintiff was not denied access to
the courts, argue that Plaintiff was represented by counsel at all relevant times during this
proceeding. Mem. at 7-8. “[T]he appointment of counsel can be a valid means of fully satisfying a
state’s constitutional obligation to provide prisoners, including pretrial detainees, with access to the
courts in conformity with the [Constitution].” Id. Plaintiff does not plead the existence or absence
of appointed counsel in his Complaint.

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For all citations to sections of the Complaint that are not in paragraph form, the Court uses
the pagination assigned by the Electronic Court Filing (“ECF”) system.
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The Court uses the pagination assigned by the Electronic Court Filing (“ECF”) system.
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In support of their claim that Plaintiff was represented by counsel at all times, Defendants
attach a complaint filed by Plaintiff against his public defender in support of the fact that Plaintiff
was represented by counsel. Dkt. No. 5-2 (“Zennamo Complaint”). However, before the Court
relies on the allegations in the Zennamo Complaint, it must determine how this Exhibit can be
considered for purposes of the Motion to dismiss.
“[A] ruling on a motion for dismissal pursuant to Rule 12(b)(6) is not an occasion for the
court to make findings of fact.” Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007). However, if
documents are either (1) attached to the complaint or (2) incorporated by reference into the
complaint, they may be considered. Id.; see also ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493
F.3d 87, 98 (2d Cir. 2007). Additionally, “a document ‘upon which [the complaint] solely relies and
which is integral to the complaint” may be considered by the court in ruling on such a motion.”
Roth, 489 F.3d at 509 (alteration in original) (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949
F.2d 42, 47 (2d Cir. 1991)). If public records are integral to a complaint, “the court, in considering a
Rule 12(b)(6) motion, is permitted to take judicial notice of those records.” Id. Exhibits offered by
a defendant are not considered on a motion to dismiss if they do not fit within one of these
categories. Leonard F. v. Isr. Discount Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999).
Here, the Zennamo Complaint is neither attached to the Complaint nor incorporated by
reference, as it is an Exhibit offered and first mentioned by Defendants. Plaintiff also cannot have
solely relied on the Zennamo Complaint in his current Complaint, as the claims in the Zennamo
Complaint are not at issue in the instant action. Therefore, the only potential rationale under which
the Zennamo Complaint can be considered is through judicial notice.
Judicial notice is appropriate for “a document filed in another court not for the truth of the
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matters asserted in the other litigation, but rather to establish the fact of such litigation and related
filings.” Global Network Commc’ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir. 2006)
(quoting Int’l Star Class Yacht Racing Ass’n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d
Cir. 1998)). The Second Circuit has clearly established that judicial notice of documents is taken
“in order ‘to determine what statements [they] contained”—but “again not for the truth of the
matters asserted.” Roth, 489 F.3d at 509 (alteration in original) (quoting Kramer v. Time Warner
Inc., 937 F.2d 767, 774 (2d Cir. 1991)). Defendants’ claim that Plaintiff was represented by counsel
is an allegation contained in the Zennamo Complaint. Zennamo Compl. ¶¶ 2-3. As a result, while
the Court can take judicial notice of the Zennamo Complaint, it cannot use the Zennamo Complaint
to establish that Plaintiff was represented by counsel at the motion to dismiss stage. Defendants’
arguments also merely state that Plaintiff was represented “at all times” by a public defender. Given
that inferences are to be drawn in favor of a plaintiff at the motion to dismiss stage, and that the
Zennamo Complaint does not allege a period of time during which Plaintiff was represented, this
blanket statement could not be taken as true even if the Zennamo Complaint were to be considered.
The Court therefore declines to dismiss on this ground.
B. Monell Claim Against Oneida County Jail
It is well established that in order to hold a municipality liable under § 1983, the alleged
injury must be the result of an official policy, custom, or practice. Monell v. Dep’t of Soc. Servs.,
436 U.S. 658 (1978); Askins v. Doe No. 1, 727 F.3d 248, 253 (2d Cir. 2013). “Isolated acts of
municipal employees are typically not sufficient to establish municipal liability.” Wright v. City of
Syracuse, No. 10-CV-0661, 2014 WL 1293527, at *15 (N.D.N.Y. Mar. 31, 2014). A series of acts
must be “sufficiently widespread and persistent to support a finding that they constituted a custom,
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policy, or usage of which supervisory authorities must have been aware.” Jones v. Town of E.
Haven, 691 F.3d 72, 81 (2d Cir. 2012). “[T]he mere assertion of the existence of policy is not
enough.” Scalpi v. Town of E. Fishkill, No. 14-CV-2126, 2016 WL 858916, at *6 (S.D.N.Y. Feb.
29, 2016). Plaintiff’s Complaint, liberally construed, alleges discrete acts regarding the delay of his
legal papers and broadly notes that the clerks available to assist with legal research were
incompetent. Compl. ¶¶ 2-3. Therefore, Plaintiff has not alleged sufficient facts under Monell to
survive Defendants’ Motion to dismiss. Defendants’ Motion to dismiss, insofar as it seeks to
dismiss claims against the Jail, is granted.
C. Personal Involvement
Defendants claim that Plaintiff has not pled sufficient facts to show that deliberate acts were
taken by any Defendants to deny Plaintiff his right of access to the courts. Mem. at 9. “Personal
involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of
damages under § 1983.” Gee v. Fischer, No. 09-CV-1057, 2011 WL 4965297, at *10 (N.D.N.Y.
Sept. 21, 2011) (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)); adopted, 2011 WL
4965038 (Oct. 19, 2011). “Plaintiffs must allege actual interference with their access to the courts
or prejudice of an existing action.” Bartley v. Artuz, No. 95 Civ. 10161, 1999 WL 942425, at *9
(S.D.N.Y. Oct. 19, 1999). While Plaintiff’s Complaint does “specify the role” of some Defendants
in the alleged violation, Taylor v. Santana, No. 05 Civ. 1860, 2007 WL 737485, at *7 (S.D.N.Y.
2007), the only deliberate acts which could be inferred from the Complaint are that Lamont
informed Plaintiff that his legal work was subject to review and, under a liberal reading, that Harris
reviewed the legal work, which resulted in Plaintiff’s inability to prepare for his legal defense. The
Court finds that Lamont informing Plaintiff about the delay in his legal papers is not sufficient to
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show that Lamont was personally involved in denying Plaintiff access to the courts. However,
without addressing the overall sufficiency of the allegation against Harris, which is not raised by
Defendants here, Plaintiff’s allegation that Harris was holding Plaintiff’s legal papers is sufficient to
constitute personal involvement in an alleged deprivation of Plaintiff’s constitutional rights.
With respect to the remaining defendants, Plaintiff does not plead that they were personally
involved in any way. Therefore, they can only be found to be personally involved under the
supervisory liability framework outlined in Colon v. Coughlin:
The personal involvement of a supervisory defendant may be shown by
evidence that: (1) the defendant participated directly in the alleged
constitutional violation, (2) the defendant, after being informed of the
violation through a report or appeal, failed to remedy the wrong, (3) the
defendant created a policy or custom under which unconstitutional
practices occurred, or allowed the continuance of such a policy or
custom, (4) the defendant was grossly negligent in supervising
subordinates who committed the wrongful acts, or (5) the defendant
exhibited deliberate indifference to the rights of inmates by failing to act
on information indicating that unconstitutional acts were occurring.
58 F.3d 865, 873. Plaintiff has not provided any facts showing the remaining Defendants were
direct participants. He has also not pleaded either actual knowledge, deliberate indifference, or
gross negligence on the part of any named Defendant or that the restrictions approved by Zurek and
Liddy led to unconstitutional practices. As a result, Plaintiff has failed to state a claim against all
Defendants other than Harris.
IV.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that Defendants’ Motion (Dkt. No. 5) to dismiss is GRANTED in part, as to

the dismissal of Plaintiff’s claims against Defendants Hobbie, Lamont, Zurek, Liddy, and the

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Oneida County Jail; and DENIED in part, as to Plaintiff’s claim against Harris; and it is further
ORDERED, that the Clerk terminate Edna P. Hobbie, Anne Lamont, Lt. Zurek, Chief
Liddy, and the Oneida County Jail are terminated as Defendants in this action; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and
Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.

DATED:

March 18, 2016
Albany, New York

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