Gee v. Annucci et al

Filing 8

DECISION AND ORDER: ORDERED that to the extent that plaintiff asserts claims under Section 1983, this action is DISMISSED with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon whic h relief may be granted against the named defendants. Plaintiff's state law claims, if any, are DISMISSED without prejudice, but without leave to replead in this action. The Clerk is directed to close this case. Signed by Senior Judge Norman A. Mordue on 1/4/17. (served on plaintiff by regular mail)(alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

CARL GEE,
Plaintiff,
9:16-CV-1040
(NAM/ATB)

v.

ANTHONY J. ANNUCCI, et al.,
Defendants.

APPEARANCES:
CARL GEE
98-B-1658
Plaintiff, pro se
Auburn Correctional Facility
P.O. Box 618
Auburn, NY 13021
NORMAN A. MORDUE, Senior United States District Judge
DECISION AND ORDER
I.

INTRODUCTION
Plaintiff Carl Gee commenced this action by filing a pro se civil rights complaint

pursuant to 42 U.S.C. § 1983 ("Section 1983"), together with an application to proceed in
forma pauperis. Dkt. No. 1 ("Compl."), Dkt. No. 2 ("IFP Application"). Plaintiff named four
defendants in his complaint: Anthony J. Annucci, Commissioner of the New York State
Department of Corrections and Community Supervision ("DOCCS"); Stephen O'Brien,
Monroe County Assistant District Attorney; Vincent M. Dinolfo Monroe County Court Judge;
and Shirley Troutman, Appellate Division Fourth Department Judge. Compl. at 1-2.
Construed liberally, the complaint alleged that defendants violated plaintiff's rights by using,

disseminating, or failing to correct misinformation contained in plaintiff's records. Id. at 4.
Plaintiff requested injunctive and declaratory relief. Id. at 15. By Decision and Order filed
October 12, 2016, plaintiff's IFP Application was granted, but the Court found that the
complaint failed to state a claim upon which relief may be granted, and therefore was subject
to dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b). Dkt. No. 4 (the
"October 2016 Order"). In light of his pro se status, plaintiff was provided an opportunity to
submit an amended complaint. Id. at 12-13. Presently before the Court is plaintiff's amended
complaint. Dkt. No. 6 ("Am. Compl.").
II.

DISCUSSION
The legal standard governing the dismissal of a pleading for failure to state a claim

pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) was discussed at length in
the October 2016 Order and will not be restated here. See October 2016 Order at 2-4.
Plaintiff has submitted an amended complaint in response to the October 2016 Order,
naming the same four defendants named in the original complaint. Dkt. No. 6 ("Am.
Compl."). In the amended complaint, plaintiff again alleges that information contained in his
criminal records and DOCCS records is incorrect. See generally Am. Compl. Specifically,
plaintiff alleges that the "misinformation is a November 12, 1985 conviction to a sentence of
four to twelve years from Nassau County Court." Id. at 3. Plaintiff alleges that this "false
information . . . was generated by the Monroe County District Attorney['s] [O]ffice, and is
maintained in their system of records." Id. Plaintiff also alleges that the misinformation is
contained in DOCCS records. Id. at 3-4.
Taking into account plaintiff's pro se status, the Court construes the allegations in
plaintiff's amended complaint with the utmost leniency. See, e.g., Haines v. Kerner, 404 U.S.

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519, 521 (1972) (holding that a pro se litigant's complaint is to be held "to less stringent
standards than formal pleadings drafted by lawyers."). Despite this liberal reading, for the
reasons discussed below, a review of plaintiff's amended complaint reveals that it does not
cure the deficiencies identified in the original complaint and fails to state a claim upon which
relief may be granted against the named defendants.
1. Defendant Annucci
After reviewing the original complaint, the Court found that even if plaintiff's allegations
against defendant Annucci were accepted as true and all inferences were drawn in plaintiff's
favor, the claims failed because (1) the Second Circuit has not recognized that prisoners
have a constitutional right to have incorrect information expunged from their files; (2) the filing
of a false report does not rise to the level of a constitutional violation; (3) defendant Annucci
cannot be liable for any alleged constitutional injury suffered as a result of false information
received from external sources; (4) plaintiff has repeatedly challenged in state court the
accuracy of the information contained in his records and has lost his challenge on each
occasion; and (5) plaintiff's claim that defendant Annucci will in the future provide the alleged
misinformation to the Parole Board, who will in turn rely on the alleged misinformation to
plaintiff's detriment, was speculative at best. October 2016 Order at 10-12.
In the amended complaint, plaintiff alleges that his DOCCS' records include
"misinformation" - namely a reference to "a November 12, 1985 conviction to a sentence of
four to twelve years from Nassau County Court." Am. Compl. at 3. Plaintiff also alleges that
DOCCS "has already increased the plaintiff's criminal history score based on the
misinformation." Id. at 4. As with the original complaint, the amended complaint contains no
facts to plausibly suggest that plaintiff's DOCCS' records are not accurate. Indeed, the

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exhibits attached to the amended complaint demonstrate the opposite - that the alleged
misinformation is not in contained in the DOCCS' records. See Dkt. No. 6-1 at 2-3 (noting
that DOCCS' records "do not have a sentence and judgment of conviction entered on
November 12, 1985, to 4 to 12 years, and inmate Carl Gee never served a sentence[ ] and
judgment of conviction reflecting these terms in DOCCS from Nassau County").1
Accordingly, for these reasons, and for all of the reasons set forth in the October 2016
Order, plaintiff fails to state a claim against defendant Annucci and all claims against him are
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b).
2. Defendant O'Brien
Plaintiff's claims against defendant O'Brien were dismissed because plaintiff's request
for prospective declaratory or injunctive relief against defendant O'Brien was not supported
by facts to plausibly suggest that the information that plaintiff wanted expunged from his
criminal records was incorrect. October 2016 Order at 7-9.
In his amended complaint, plaintiff now provides a copy of a Persistent Violent
Offender Information dated July 1, 1998, allegedly filed by the Monroe County District
Attorney in the course of a criminal proceeding against plaintiff in Monroe County Court. Dkt.
No. 6-1 at 5. The document contains the allegedly false information at issue here - namely it
lists as a predicate offense a Nassau County judgment of conviction for Second Degree
Robbery with a sentence of four to twelve years. Id. Plaintiff alleges that defendant O'Brien
"has supervisory authority of county records [but has] refused to correct the information."

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Moreover, plaintiff himself states that "DOCCS is without authority to filter out any statements
contained in defendants O'Brien and Dinolfo documents."). Am. Compl. at 4.

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Am. Compl. at 3.2 However, even if the Court accepts these allegations as true, defendant
O'Brien's alleged failure to correct false entries in county records does not rise to the level of
a constitutional violation and is not a cognizable claim under Section 1983. See Moore v.
Casselberry, 584 F. Supp. 2d 580, 582 (W.D.N.Y. 2008) ("There is no basis for a
constitutional claim alleging the mere filing of a false report.") (citing Freeman v. Rideout, 808
F.2d 949, 951 (2d Cir. 1986)); see also LaBounty v. Coombe, 208 F.3d 203 (2d Cir. 2000)
(summary order) (The Second Circuit has not recognized that prisoners have a constitutional
right to have incorrect information expunged from their files).
Accordingly, for these reasons, and for all of the reasons set forth in the October 2016
Order, plaintiff fails to state a claim against defendant O'Brien and all claims against him are
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b).
3. Defendants Dinolfo and Troutman
The October 2016 Order stated as follows:
Judges are immune from suits for damages arising out of judicial acts
performed in their judicial capacities. Mireles v. Waco, 502 U.S. 9, 11 (1991);
Forrester v. White, 484 U.S. 219, 225 (1988). The absolute judicial immunity of
the court and its members "is not overcome by allegations of bad faith or
malice," nor can a judicial officer be deprived of immunity "because the action
he took was in error or was in excess of his authority." Mireles, 502 U.S. at 11,
13 (quotations and citations omitted). This immunity may be overcome only if
the court is alleged to have taken nonjudicial actions or if the judicial actions
taken were "in the complete absence of all jurisdiction." Id. at 11-12.
Although judges are not absolutely immune from actions for prospective
injunctive relief, under the Federal Courts Improvement Act of 1996, injunctive
relief against a judicial actor is limited to situations in which a declaratory decree
was violated or where declaratory relief was unavailable. Montero v. Travis, 171
F. 3d 757, 761 (2d Cir. 1999) (citing the Federal Courts Improvement Act of
1996, § 309(c), Pub.L. No. 104-317, 110 Stat. 3847, 3853 (1996) (amending 42
U.S.C. § 1983)); see also Hili v. Sciarrotta, 140 F.3d 210, 215 (2d Cir. 1998).

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In the original complaint, plaintiff alleged that defendant O'Brien represented the State of New York in
"a series of unsuccessful CPL § 440.20 motions file[d] [by plaintiff] in the Monroe County Court" seeking "to
correct this misinformation." Compl. at 6.

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Plaintiff does not allege that defendants Dinolfo and Troutman violated a
declaratory decree, and there is nothing in the complaint to plausibly suggest
that declaratory relief was unavailable. "Indeed, declaratory relief against a
judge for actions taken within his or her judicial capacity is ordinarily available
by appealing the judge's order." Caldwell v. Pesce, 83 F. Supp. 3d 472, 484
(E.D.N.Y. 2015), aff'd, 639 F. App'x 38 (2d Cir. 2016) (citing Ashmore v. Prus,
No. 13-CV-2796, 2013 WL 3149458, at *4 (E.D.N.Y. June 19, 2013) (citing
LeDuc v. Tilley, No. 05-CV-0157, 2005 WL 1475334, at *7 (D. Conn. June 22,
2005) (citing cases))). Plaintiff did use the appellate process in state court.
See Dkt. No. 1-1 at 26-29. Moreover, to the extent that plaintiff seeks a
declaration that defendants Dinolfo and Troutman did not have "safeguards" in
place to prevent the "data entry error" in plaintiff's Predicate Statement, he
essentially seeks to correct past harm and the claim fails. See Ippolito, 958 F.
Supp. at 165 ("[C]ourts are not obliged to entertain actions for declaratory
judgment not seeking prospective relief but merely declaring past wrongs.").
October 2016 Order at 9-10.
Plaintiff's claims against defendants Dinolfo and Troutman are dismissed pursuant to
28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for the same reasons set forth in the
October 2016 Order.
III.

CONCLUSION
After reviewing plaintiff's amended complaint, and according it the utmost liberality in

light of his pro se status, the Court is not able to discern either a factual or legal basis for this
action against the named defendants. For all of the reasons set forth herein and in the
October 2016 Order, and because plaintiff has already had one opportunity to amend his
claims, plaintiff's Section 1983 claims are dismissed with prejudice pursuant to 28 U.S.C. §
1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be
granted.
WHEREFORE, it is hereby
ORDERED that to the extent that plaintiff asserts claims under Section 1983, this
action is DISMISSED with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. §
1915A(b) for failure to state a claim upon which relief may be granted against the named

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defendants. Plaintiff's state law claims, if any, are DISMISSED without prejudice, but
without leave to replead in this action. The Clerk is directed to close this case; and it is
further
ORDERED that the Clerk serve a copy of this Decision and Order on plaintiff.
IT IS SO ORDERED.
Dated: January 4, 2017
Syracuse, NY

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