Gambino v. Payne et al

Filing 124

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTTORDER re 123 Notice (Other) filed by David August GambinoPlaintiff's Notice, with motion requesting this Court to order parties to comply with plaintiff's FOIL request, is denied.Copy of Order mailed to plaintiff at the Cumberland Federal Correctional Facility by Chambers.So Ordered. Signed by Hon. Hugh B. Scott on 6/3/2015. (DRH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DAVID AUGUST GAMBINO,
Plaintiff,
Hon. Hugh B. Scott
12CV824A
v.
Order

CAPTAIN PAYNE, et al.,
Defendants.

Before the Court is plaintiff’s notice that non-parties had not responded to his Freedom of
Information Law (“FOIL”) requests (Docket No. 123). Plaintiff here moves that this Court order
the Niagara County Legislature’s clerk and an assistant Niagara County attorney to respond to
his pending FOIL requests (id.). Also pending are a series of motions (a) from plaintiff seeking
to compel production (Docket Nos. 113, 121); (b) from plaintiff seeking leave to amend the
Complaint (Docket No. 107); (c) from plaintiff seeking a protective Order (Docket No. 105); and
(d) from defendants cross-moving to compel (Docket No. 111). These motions will be addressed
in a separate Order.
BACKGROUND
This is a civil rights action commenced by plaintiff, proceeding pro se as an inmate. On
August 30, 2012, plaintiff filed his original Complaint (Docket No. 1), alleging that defendants
exposed plaintiff’s naked body in violation of his Jewish religious beliefs in modesty, that
plaintiff endured corporal punishment and suffered sexual abuse while in Niagara County

custody (Docket No. 11, Am. Compl). Plaintiff was in Niagara County’s custody while awaiting
disposition of his federal charges, see United States v. Gambino, No. 09CR372A. In 2012, when
the incidents in this case allegedly occurred, plaintiff was awaiting sentencing, see id., Docket
No. 605, sentencing adjourned to April 5, 2012; see also id., text minute entry Nov. 20, 2013,
sentencing held.1
This Court granted plaintiff’s in forma pauperis motion on his initial Complaint (Docket
No. 2), dismissing the First Claim and granting him leave to amend some of the remaining
claims (Docket No. 6). Plaintiff then filed his Amended Complaint (Docket No. 11, asserting
claims that survived this in forma pauperis review) and defendants answered (Docket Nos. 14,
58).
Among the various motions now before this Court, plaintiff notes that Niagara County
Legislature Clerk and an assistant County attorney failed to respond to his FOIL request by an
April 26, 2015, deadline (Docket No. 123, Pl. Notice). Plaintiff claims that this delay and denial
of his FOIL request is hindering him in preserving evidence in this case (id. ¶ 2). A copy of the
FOIL request, however, was not included in plaintiff’s moving papers.
DISCUSSION
Rather than have defendants respond to this motion, this Court will address it now. As
previously noted (see Docket No. 88, Order of Mar. 2, 2015, at 6 (quashing subpoena)), Niagara
County and its Jail is not a defendant in this action and this Court does not have jurisdiction over
the County Legislature or its officers or staff now named by plaintiff.

1

Plaintiff is currently in custody in a federal facility in Maryland.

2

FOIL arises from the New York State Public Officers Law §§ 84, et seq., where the
remedy for a FOIL violation is a court Order requiring disclosure, W. Harlem Bus. Group v.
Empire State Dev. Corp., 13 N.Y.3d 882, 885, 893 N.Y.S.2d 825, 827 (2009); Markowitz v.
Serio, 11 N.Y.3d 43, 47, 862 N.Y.S.2d 833 (2008); see also Reed v. Medford Fire Dep’t, Inc.,
806 F. Supp.2d 594, 607-08 (E.D.N.Y. 2011) (appropriate vehicle for challenging denial of FOIL
requests is state court Article 78 proceeding, N.Y. CPLR 7801); Boyd v. Albany County Dep’t
of Soc. Servs., No. 1:14cv1386, 2015 U.S. Dist. LEXIS 68965, at *12 (N.D.N.Y. Mar. 27, 2015)
(Treece, Mag. J.) (citing cases, no denial of federal due process to pro se plaintiff for denied
FOIL request since plaintiff did not have a property or liberty interest in having her FOIL request
addressed), adopted, 2015 U.S. Dist. LEXIS 68686 (N.D.N.Y. May 28, 2015); Horace v. Gibbs,
No. 14CV655, 2015 U.S. Dist. LEXIS 28445, at *2 n.2 (W.D.N.Y. Mar. 9, 2015) (Arcara, J.) (in
pro se action, FOIL request would be separate from federal pro se action and would not be
litigated in this action). As held by the Boyd court, 2015 U.S. Dist. LEXIS 68965, at *12, “if
indeed Plaintiff submitted a FOIL request through proper channels, any challenge to a denial of
her request should be brought in State court pursuant to Article 78 [of the N.Y. Civil Practice
Law and Rules],” and plaintiff had post-deprivation process available in New York State courts
depriving her of a due process claim, id. at *12-13. The Second Circuit has held that a plaintiff
cannot maintain a due process claim for an alleged violation of state law, in particular for failure
to respond to a FOIL request, Reed, supra, 806 F. Supp. 2d at 607 (citing cases).
Plaintiff here has not alleged a due process claim that would have this Court examine
whether or not denial of his FOIL request was appropriate. Since neither official named by

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plaintiff here nor the County itself nor its Legislature is a party in this action, this Court cannot
compel them to answer plaintiff’s FOIL requests in this action.
CONCLUSION
For the reasons stated above, plaintiff’s motion (Docket No. 123) for this Court to compel
non-parties to respond to plaintiff’s FOIL requests is denied.
So Ordered.

/s/ Hugh B. Scott
Hon. Hugh B. Scott
United States Magistrate Judge

Dated: Buffalo, New York
June 3, 2015

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