Mallet v. Johnson
Filing
28
MEMORANDUM OPINION AND ORDER, The Court has carefully considered all of the arguments raised by the parties. To the extent not specifically discussed above, they are either moot or without merit. For the reasons explained in this Opinion and Order, t he defendants' motion to dismiss is granted. The plaintiff's requests for appointment of counsel and production of a hearing transcript are denied as moot. The Clerk is directed to enter judgment dismissing the complaint and closing this case. The Clerk is also directed to close all pending motions. (Signed by Judge John G. Koeltl on 7/6/11) (pl)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
ANTONIO MALLET,
Plaintiff,
09 Civ. 8430 (JGK)
- against -
MEMORANDUM OPINION AND
ORDER
ROBERT T. JOHNSON, BRONX COUNTY
DISTRICT ATTORNEY,
Defendant.
────────────────────────────────────
JOHN G. KOELTL, District Judge:
The plaintiff, Antonio Mallet, a prisoner incarcerated at
Eastern Correctional Facility, brought this action pro se
against Bronx County District Attorney Robert T. Johnson under
42 U.S.C. § 1983.
The plaintiff seeks the release of
fingerprint and ballistic evidence collected in connection with
his 1999 criminal trial.
The plaintiff also requests the
release of records and reports prepared during the
investigation, along with the personnel records for the
investigation’s lead detective.
The defendant moves to dismiss
for failure to state a claim upon which relief may be granted
pursuant to Federal Rule of Civil Procedure 12(b)(6).
The
plaintiff also requests a copy of the transcript of another
proceeding, as well as the appointment of counsel.
I.
In deciding a motion to dismiss pursuant to Rule 12(b)(6),
the allegations in the Complaint are accepted as true, and all
reasonable inferences must be drawn in the plaintiff's favor.
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.
2007).
The Court's function on a motion to dismiss is “not to
weigh the evidence that might be presented at a trial but merely
to determine whether the complaint itself is legally
sufficient.”
1985).
Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.
The Court should not dismiss the complaint if the
plaintiff has stated “enough facts to state a claim to relief
that is plausible on its face.”
U.S. 544, 570 (2007).
Bell Atl. Corp. v. Twombly, 550
“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.”
(2009).
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949
While the Court should construe the factual allegations
in the light most favorable to the plaintiff, “the tenet that a
court must accept as true all of the allegations contained in
the complaint is inapplicable to legal conclusions.”
Id.
When faced with a pro se complaint, the Court must
“construe [the] complaint liberally and interpret it to raise
the strongest arguments that it suggests.” Chavis v. Chappius,
618 F.3d 162, 170 (2d Cir. 2010) (brackets and internal
2
quotation marks omitted).
“Even in a pro se case, however, . .
. threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
(internal quotation marks omitted).
Id.
Thus, although the Court is
“obligated to draw the most favorable inferences” that the
complaint supports, it “cannot invent factual allegations that
[the plaintiff] has not pled.”
Id.; see also Benavides v.
Grier, No. 09 Civ. 8600, 2011 WL 43521, at *1 (S.D.N.Y. Jan. 6,
2011).
II.
The following allegations are assumed to be true for the
purposes of this motion.
On September 23, 1999, following a jury trial, the
plaintiff was convicted in the New York State Supreme Court,
Bronx County, of murder in the second degree.
to a term of twenty years to life imprisonment.
He was sentenced
On December 12,
2000, the Appellate Division, First Department, affirmed the
plaintiff’s conviction on appeal. People v. Mallet, 717 N.Y.S.2d
530 (App. Div. 2000).
Appeals was denied.
2001).
Leave to appeal to the New York Court of
People v. Mallet, 750 N.E.2d 82 (N.Y.
By motion to the Supreme Court, Bronx County, the
plaintiff moved to vacate the judgment pursuant to New York
Criminal Procedure Law § 440.10 based on the grounds of
3
ineffective assistance of counsel.
The court denied this
motion, and leave to appeal to the Appellate Division denied.
The plaintiff sought relief in federal court by filing a
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Judge Marrero denied the plaintiff’s petition and rejected all
of his claims.
The plaintiff moved for reconsideration, and
Judge Marrero denied that motion.
The plaintiff moved a second
time for reconsideration, this time on the basis on “newly
obtained” evidence.
Judge Marrero rejected this motion as
repetitive of his previous motions, and the Second Circuit
denied the plaintiff’s subsequent motion for a certificate of
appealability and dismissed his appeal.
Mallet v. Miller, 432
F. Supp. 2d 366 (S.D.N.Y. 2006), recons. denied, 438 F. Supp. 2d
276 (S.D.N.Y. 2006), recons. denied, 442 F. Supp. 2d 156
(S.D.N.Y. 2006), appeal dismissed, No. 06-3255-pr (2d Cir. Dec.
26, 2006).
On August 17, 2006, the plaintiff returned to state court
and submitted a second § 440.10 motion to vacate the judgment of
conviction, this time on the basis of, among other things,
allegedly newly-discovered evidence.
(“Second § 440.10 Order”) at 3.)
(Aroubas Decl., Ex. B
The plaintiff alleged that
the ballistics detective who testified at trial was capable of
performing microscopic analysis, and if the jury were given more
information about the detective’s ability to perform such
4
analysis, it would have been evidence for the plaintiff.
As
relevant to this case, the Supreme Court denied the plaintiff’s
request on two grounds.
First, it determined that the evidence
of the detective’s capabilities was available to the plaintiff
before and during trial, which precluded a motion under §
440.10.
Id. at 4.
Second, it found plaintiff’s argument that
the evidence would have affected the outcome of the trial to be
speculative at best. Id. at 4-5.
On March 5, 2008, the plaintiff returned to federal court
and moved for an order vacating the denial of his habeas
petition on the basis of newly-discovered evidence.
Miller, 553 F. Supp. 2d 336 (S.D.N.Y. 2008).
Mallet v.
The plaintiff
presented an article published in the New York Law Journal on
September 15, 2005 that described a detective who used
microscopic analysis to examine a bullet.
Id. at 336.
Judge
Marrero rejected this motion on the grounds that the evidence
was not “new,” because it was published before the court’s
denial of the plaintiff’s petition, and moreover, because the
evidence “would not be sufficient to establish by clear and
convincing evidence that no reasonable jury would have found
[the plaintiff] guilty of the offense, given the substantial
record otherwise supporting his conviction.”
Id. at 336-37.
On June 10, 2008, the plaintiff returned to state court
and filed a third motion to vacate his judgment pursuant to CPL
5
§ 440.10, and a motion to release the fingerprints and ballistic
evidence used in his case pursuant to CPL § 440.30(1-a).
(Aroubas Decl., Ex. C (“Third § 440.10 Order”) at 1.)
The court
denied the plaintiff’s motion to vacate on all grounds.
7.
Id. at
The court also denied the plaintiff’s request for access to
evidence on the ground that the plaintiff had articulated this
request in previous applications and had repeatedly failed to
provide an exception for reviving the claim.
Id. at 6-7.
Meanwhile, the plaintiff filed several Freedom of
Information Law (“FOIL”) requests to obtain evidence from his
criminal investigation.
On October 5, 2006, the plaintiff filed
a FOIL request for the fingerprints and ballistic evidence
collected at the crime scene.
2.)
(Compl., Ex. D, (“FOIL Order”) at
On October 19, 2006, the plaintiff filed a FOIL request for
the police reports and paperwork from the investigation.
After
receiving an insufficient response, the plaintiff appealed to
the Records Access Appeals Officer (“RAAO”), who denied his
appeal on May 11, 2007.
After the appeal was denied, the
plaintiff commenced an Article 78 proceeding.
Id. at 3.
On
April 2, 2008, the Supreme Court denied a motion to dismiss the
Article 78 petition.
Id. at 9-10.
On May 16, 2008, the Records
Access Officer (“RAO”) provided the plaintiff with photostatic
copies of the fingerprint evidence.
(Compl., Ex. H at 3.)
plaintiff was unable to retest these copies.
6
(Compl. at 4.)
The
The RAO also certified that “police reports, photographs and
audiotapes of all wiretaps and surveillance,” which the
plaintiff had requested, could not be located.
(Compl., Ex. H
at 3.)
On February 5, 2008, the plaintiff filed a FOIL request to
obtain the personnel records of Detective Nieves, the lead
detective in his criminal investigation.
(Compl., Ex. K.)
The
request was denied pursuant to Public Officers Law §§ 87(2)(e)
and (a), which exempts police officer personnel records from
disclosure. (Compl., Ex. L.)
The plaintiff appealed the
decision, (Compl., Ex. M), and on April 25, 2008, the RAAO
denied this appeal. (Compl., Ex. N.)
The RAAO informed the
plaintiff that he could seek judicial review of the decision by
commencing an Article 78 proceeding within four months of the
decision.
Id.
The plaintiff did not commence an Article 78
proceeding.
On October 5, 2009, the plaintiff filed this action
pursuant to § 1983 alleging that he was wrongfully denied posttrial access to evidence.
evidence:
The plaintiff requests the following
(1) the latent fingerprint lifts; (2) the seven
Polaroid photos of the fingerprint lifts; (3) the fingerprint
tape; (4) the white actual fingerprint cards; (5) the results
from the fingerprints report; (6) the deformed lead bullet and
fragments; (7) the crime scene color photographs of the
7
ballistic evidence; (8) all ballistic work sheets; (9) audio and
surveillance tapes, along with paperwork from the criminal
investigation; and (10) personnel records for Detective Nieves.
(Compl. at 2, 6.)
III.
Section 1983 provides a cause of action to those who
challenge a state’s “deprivation of any rights . . . secured by
the Constitution.”
42 U.S.C. § 1983.
The plaintiff claims that
the defendant, in denying him access to post-conviction
evidence, has deprived him of protections guaranteed by the Due
Process Clause and Equal Protection Clause.
The plaintiff also
alleges that this denial has deprived him of his right to access
the courts.
A.
In two recent decisions, the Supreme Court has instructed
how to proceed when a defendant brings a post-conviction due
process claim under 42 U.S.C. § 1983 and seeks access to
potentially exculpatory evidence.
See Skinner v. Switzer, 131
S. Ct. 1289 (2011); Dist. Attorney’s Office for Third Judicial
Dist. v. Osborne, 129 S. Ct. 2308 (2009).
Both Skinner and
Osborne involved requests for evidence for the purposes of DNA
testing.
Although the plaintiff in this case seeks fingerprint
and ballistic evidence, these recent decisions are instructive.
8
In Skinner, the Supreme Court held that a post-conviction
claim for access to evidence is properly brought under § 1983.
Skinner, 131 S. Ct. at 1293.
The Court reasoned that § 1983 was
the proper vehicle for such a claim rather than a petition for
habeas corpus because success in obtaining DNA testing would not
Id. at
“necessarily imply” the invalidity of the conviction.
1298.
While the outcome of the testing might prove exculpatory,
that outcome “is hardly inevitable.”
Id.
However, the Court
noted that its earlier decision in Osborne severely limited this
right.
Id. at 1293.
In Osborne, the Court held that a
convicted defendant has no freestanding substantive due process
right to obtain DNA testing.
Osborne, 129 S. Ct. at 2322.
Instead, the issue is whether the state’s procedures afforded to
post-conviction defendants for access to information to
vindicate the state right to post-conviction relief are
adequate.
Osborne, 129 S.Ct. at 2320; McLean v. Brown, No. 08
Civ. 5200, 2010 WL 2609341, at *7 (E.D.N.Y. June 25, 2010.)
Federal courts “may upset a State’s postconviction relief
procedures only if they are fundamentally inadequate to
vindicate the substantive rights provided.”
Osborne, 129 S. Ct.
at 2320; see also McKithen v. Brown, 626 F.3d 143, 151-55 (2d
Cir. 2010)(applying Osborne and finding that the procedures
under New York law for DNA testing are constitutionally
adequate).
9
In New York State, FOIL provides a mechanism by which a
prisoner may obtain evidence related to a prior conviction.
N.Y. Pub. Off. Law. § 84.
See
Under FOIL, government records are
presumptively open to the public, and post-conviction defendants
qualify as members of the public when seeking information about
Gould v. N.Y.C. Police Dep’t, 675 N.E.2d 808, 811
their cases.
(N.Y. 1996).
The plaintiff has failed to allege that FOIL procedures are
fundamentally inadequate.
In a thoughtful opinion, Judge Gibson
recently held that FOIL proceedings provide an “adequate means
of protecting the prisoner’s interests, including access to
judicial review in state Supreme Court.”
McLean, 2010 WL
2609341, at *7; see also Blount v. Brown No. 10 Civ. 01548, 2010
WL 1945858, at *2 (E.D.N.Y. May 11, 2010)(“the procedures set
forth under New York law are sufficient to protect any property
interest that a person might have in the receipt of FOIL
documents”).
A prisoner may make a FOIL request for relevant
records, and if a request is denied, the prisoner may appeal
this decision.
After exhausting all administrative remedies, a
prisoner may challenge the denial in a state-court action for
judicial review under Article 78 of the CPLR.
Off. L. § 89(4)(b).
See N.Y. Pub.
The sufficiency of Article 78 proceedings
to satisfy due process requirements is well-established.
See
Hellenic Am. Neighborhood Action Comm. v. City of New York, 101
10
F.3d 877, 880-81 (2d Cir. 1996)(“An Article 78 proceeding is
adequate for due process purposes even though the petitioner may
not be able to recover the same relief that he could in a § 1983
suit.”); see also Papay v. Haselhuhn, No. 07 Civ. 3858, 2010 WL
4140430, at *9-10 (S.D.N.Y. Oct. 21, 2010) (availability of
Article 78 proceeding defeats claim that denial of FOIL request
violates due process); Getso v. CUNY, No. 08 Civ. 7469, 2009 WL
4042848, at *4 (S.D.N.Y. Nov. 18, 2009) (same).
Accordingly,
the availability of an Article 78 proceeding satisfies any
procedural due process right of the plaintiff to avail himself
of the state law rights in question.
Additionally, the plaintiff has failed to use fully the
state process.
Like the state prisoner in Osborne, this leaves
the petitioner, “in a very awkward position.”
S.Ct. 2321.
Osborne, 129
While there is no requirement to exhaust state-law
remedies, see Patsy v. Board of Regents of Fla., 457 U.S. 496,
500-1 (1982), it is the plaintiff’s burden to show the
inadequacy of the state law procedures available to him in state
post-conviction relief.
Osborne, 129 S.Ct. at 2321.
There is
no indication that the petitioner followed up on his Article 78
petition after the Supreme Court refused to dismiss it.
There
is also no indication that the petitioner sought Article 78
relief from the May 16, 2008 decision of the RAO or the April
25, 2008 decision of the RAAO.
As in Osborne, the procedures
11
are adequate on their face, and without pursuing them, the
plaintiff cannot argue that they do not work in practice.
Id.
To the extent the plaintiff alleges that the inability to
obtain the actual fingerprint and ballistic evidence makes these
procedures inadequate, the plaintiff does not have a statecreated right to this evidence and therefore has no recognizable
claim under § 1983.
Under FOIL, physical evidence is exempted
from disclosure because physical evidence does not fit within
the statutory definition of “record.”
See Sideri v. Office of
Dist. Atty., 663 N.Y.S.2d 206, 206 (App. Div. 1997); see also
N.Y. Pub. Off. Law § 86(4).
Moreover, there is no state-created
right to post-conviction access to such evidence.
See Nwobi v.
Kelly, No. 06 Civ. 4848, 2006 WL 2882572, at *3 (E.D.N.Y. Oct.
6, 2006). 1
B.
The plaintiff also alleges an equal protection violation on
the ground that he is being treated differently from others who
are similarly situated.
“The Equal Protection Clause requires that the Government
treat all similarly situated people alike.”
Harlen Assocs. v.
Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001). “[T]he
1
In an effort to narrow the issues in this case, the Court urged counsel for
the defendant to determine what additional documents could be produced. The
defendant’s counsel, without waiving any rights, produced color photographs
of the crime scene. The plaintiff rejected these documents as inadequate.
12
prototypical equal protection claim involves discrimination
against people based on their membership in a vulnerable class .
. . .”
Id.
Courts also recognize equal protection claims by
individuals “who allege no specific class membership but are
nonetheless subjected to invidious discrimination at the hands
of government officials.”
Id.
The Supreme Court has instructed
that “[o]ur cases have recognized successful equal protection
claims brought by a ‘class of one,’ where the plaintiff alleges
that she has been intentionally treated differently from others
similarly situated and that there is no rational basis for the
difference in treatment.” Vill. of Willowbrook v. Olech, 528
U.S. 562, 564 (2000) (per curiam).
Here, the plaintiff has not set forth an equal protection
claim on either ground.
First, the plaintiff had not claimed
class membership because prisoners who seek evidence are not
members of a protected class.
See Lee v. Governor of N.Y., 87
F.3d 55, 60 (2d Cir. 1996) (noting that “prisoners . . . are not
a suspect class”); see also McLean, 2010 WL 2509341, at *8 n.7.
Second, the plaintiff has not alleged that he is being treated
differently from any similarly situated individuals.
The
plaintiff appears to argue that seekers of DNA evidence and
seekers of other types of evidence should have the equal access
to evidence.
However, the plaintiff is not similarly situated
13
to those seeking DNA evidence.
The difference in treatment of
the two types of claimants has a rational basis, in that DNA
evidence may have a greater capacity to exonerate individuals,
and therefore, the New York legislature chose to afford greater
protections to post-conviction defendants who seek DNA evidence
than those who seek, for example, ballistic or fingerprint
evidence.
The plaintiff cites Frails v. City of New York, 236 F.R.D.
116 (E.D.N.Y. 2006), as evidence that he is being treated
differently from others who are similarly situated.
In Frails,
the court provided the plaintiff with access to evidence of an
officer’s prior misconduct.
Id. at 117-18.
However, Frails is
inapposite because the plaintiff in Frails and the plaintiff in
this case are not similarly situated.
The plaintiff in Frails
brought an excessive force claims against the police officer
whereas the plaintiff in this case seeks evidence to challenge
his conviction.
Therefore, the plaintiff’s equal protection claim fails as
a matter of law.
C.
The plaintiff also brings an access to courts claim.
The
plaintiff contends that the defendant’s failure to provide him
with his requested evidence has “hampered his ability to prove
14
his innocence,” and that this has “denied him meaningful access
to the courts.”
In order to establish a constitutional violation based on a
denial of access to the courts, a plaintiff must show that the
defendant's conduct was deliberate and malicious, and that the
defendant's actions resulted in an actual injury to the
plaintiff.
Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003).
To show actual injury, the plaintiff must demonstrate that the
defendant's conduct frustrated the plaintiff's efforts to pursue
a non-frivolous claim.
Lewis v. Casey, 518 U.S. 343, 352-53
(1996).
Here, the plaintiff was not denied access to the courts for
any non-frivolous claim.
He repeatedly presented his arguments
to the state courts with respect to the purported evidence and
they were rejected.
He specifically argued to Judge Marrero
that fingerprint evidence would be exculpatory, and Judge
Marrero denied that claim on the merits.
at 377.
Mallet 432 F. Supp.2d
Accordingly, the plaintiff has failed to show that he
has any plausible claim for denial of access to the courts.
D.
The plaintiff has also failed to allege District Attorney
Johnson’s personal involvement in the events at issue in this
case.
Johnson’s involvement is pleaded in the conclusory terms
15
that “[t]he Office of The Bronx Country District Attorney,
Robert T. Johnson, violated plaintiff’s rights under the United
States Constitution. . . .”
(Compl. at 7.)
Because there are
no allegations of the personal involvement of Johnson, the
claims against him must be dismissed.
See, e.g., Farrell v.
Burke, 449 F.3d 470, 484 (2d Cir. 2006)(Sotomayor,J); Haygood v.
City of New York, 64 F. Supp. 2d 275, 279-80 (S.D.N.Y. 1999).
Moreover, District Attorney Johnson is also entitled to absolute
prosecutorial immunity.
See, e.g., Buckley v. Fitzsimmons, 509
U.S. 259, 273 (1993); Day v. Morgenthau, 909 F.2d 75, 77 (2d
Cir. 1990).
E.
In light of the dismissal of the plaintiff's complaint, the
plaintiff's requests for the appointment of counsel and the
production of a portion of a hearing transcript in McKithen are
denied as moot.
CONCLUSION
The Court has carefully considered all of the arguments
raised by the parties.
To the extent not specifically discussed
above, they are either moot or without merit. 2
2
For the reasons
It is unnecessary to reach the remaining arguments raised by the defendant
for dismissal including the statute of limitations and collateral estoppel.
16
explained above, the defendants' motion to dismiss is granted.
The plaintiff's requests for appointment of counsel and
production of a hearing transcript are denied as moot.
The
Clerk is directed to enter judgment dismissing the complaint and
closing this case.
The Clerk is also directed to close all
pending motions.
SO ORDERED.
Dated:
New York, New York
July G ' 2011
States District Judge
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