Wik v. Kunego
Filing
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DECISION AND ORDER granting 25 Motion for Summary Judgment. Defendants motion for summary judgment, ECF 25, is granted, and this action is dismissed with prejudice. Signed by Hon. Charles J. Siragusa on 10/9/12. (KAP)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DANIEL J. WIK,
Plaintiff,
DECISION and ORDER
-vsDONALD R. KUNEGO, in his personal and
individual capacity,
Defendant.
11-CV-6205-CJS
APPEARANCES
For Plaintiff:
Daniel J. Wik, pro se
659 Averill Avenue
Rochester, NY 14607
For Defendant:
Robert H. Flynn, Esq.
Lippman O’ Connor
300 Olympic Tow ers
300 Pearl Street
Buffalo, NY 14202
INTRODUCTION
Siragusa, J. This is an action in which the pro se Plaintiff is suing Defendant, who
is a Town Justice in the Town of Bergen, New York, because Defendant allegedly failed
to provide him with certain documents pertaining to a prosecution against him. Now before
the Court is Defendant’s motion for summary judgment, filed April 13, 2012, ECF No. 25.
The application is granted and this action is dismissed.
BACKGROUND
The following facts are taken from the Complaint and from Defendant’s summary
judgment motion. Defendant is one of two town justices in the Town of Bergen. The other
town justice is the Honorable Robert G. Swapcienski, against whom Plaintiff filed a
separate lawsuit in this Court. See, Wik v. Swapcienski, 11-CV-6220-CJS. Plaintiff alleges
that on or about July 27, 2010, he was “unlawfully restrained in his liberty at Bergen Town,
Genesee county [sic], New York under force of arms,” and appeared before Defendant.
Compl. ¶¶ 35–36. He alleges that although Defendant “holds himself out to be a New York
public officer namely a Bergen Town Court Justice,” he is “not titled to possess the office
of Bergen Town Court Justice.” Compl. ¶¶ 39–40. Plaintiff contends that Defendant is not
a judicial officer because he does not have “certificates from the Genesee County Clerk”
attesting to that fact, because the Town of Bergen has “never authorized the use of a
blanket bond,” and because Defendant has “refused to present his pocket commission.”1
Compl.¶¶ 40–46.
In or about July 2010, Plaintiff was prosecuted in Bergen Town Court in a case
assigned to Defendant. The prosecution involved a number of traffic violations and a
misdemeanor charge of Aggravated Unlicensed Operation of a Motor Vehicle in the
Second Degree (“AUO2nd”). Plaintiff pleaded guilty to AUO2nd. Nevertheless, in this
lawsuit,
Plaintiff has various complaints about the manner in which Defendant handled
his case. For example, Plaintiff maintains that Defendant violated his rights by referring to
him, in a document, as “DANIEL J WIK” rather than “Daniel J. Wik.” On this point, Plaintiff
states:
“Daniel J. Wik” is both Plaintiff’s name and Plainitiff’s complete address.
Plaintiff’s name was given to Plaintiff by Plaintiff’s Father in a solemn
religious ceremony and when Plaintiff came of competent age Plaintiff
convenanted with God to keep Plaintiff’s name sacred and free from
1
A “ pocket commission” is an identification credential carried by agents employed by the
Internal Revenue Service. See, Jew ett v. U.S., No. 3:04CV7640, 2005 WL 1120316 at * 2 (N.D.
Ohio Feb. 18, 2005).
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perversions. Thus violating Plaintiff’s name violates Plaintiff’s rights to
religious freedom. Plaintiff’s name is an English language proper noun.
Therefore, according to the rules of the English language, said name must
at all times be spelled with capital and lower case letters. . . . According to
English language rules Proper nouns not properly capitalized are misspelled;
and, Implications at law indicate spellings in the nature of all capital letters
can only indicate dead persons or some fictitious business name or
corporate capacity; and, Plaintiff is neither dead nor in corporate capacity.
Compl. ¶¶ 10–12. The foregoing excerpt is fairly representative of the nature and quality
of the grievances that Plaintiff has directed at Defendant. His complaint contains thirteen
causes of action, all alleging constitutional violations.
On April 13, 2012, Defendant filed the subject motion for summary judgment.2
Defendant contends that this action is barred by the doctrine of absolute judicial immunity.
In response, Plaintiff has raised four arguments:
Point 1
Defendant acted in the complete absence of all jurisdiction;
Point 2
Judicial Immunity does not apply to Constitutional Tort Causes
of Action.
Point 3
Smith lacks authority to certify any facts except as to
documents she is in custody of or facts she has first hand
knowledge of.
Point 4
Defendant not titled to the original jurisdiction office of Bergen
Town Justice for Bergen, New York.
Compl. at 1, 11, 13 & 16. Defendant has not filed a reply.
2
Defendant provided the pro se Plaintiff with the Irby notice required by the Local Rules of Civil
Procedure. See, Pro Se Notice, Apr. 13, 2012, ECF No. 25.
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STANDARDS OF LAW
Summary Judgment
The standard for granting summary judgment is well established. Summary
judgment may not be granted unless “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). A party seeking summary judgment bears the burden of establishing that no
genuine issue of material fact exists. See, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157
(1970). “[T]he movant must make a prima facie showing that the standard for obtaining
summary judgment has been satisfied.” 11 MOORE’S FEDERAL PRACTICE, § 56.11[1][a]
(Matthew Bender 3d ed.). “In moving for summary judgment against a party who will bear
the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an
absence of evidence to support an essential element of the nonmoving party's claim.”
Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986)), cert denied, 517 U.S. 1190 (1996).
The underlying facts contained in affidavits, attached exhibits, and depositions, must
be viewed in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369
U.S. 654, 655 (1962). Summary judgment is appropriate only where, "after drawing all
reasonable inferences in favor of the party against whom summary judgment is sought, no
reasonable trier of fact could find in favor of the non-moving party." Leon v. Murphy, 988
F.2d 303, 308 (2d Cir.1993). Moreover, since Plaintiff is proceeding pro se, the Court is
required to construe his submissions liberally, “to raise the strongest arguments that they
suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994).
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Civil Rights
Plaintiff is suing pursuant to 42 U.S.C. § 1983, and the legal principles generally
applicable to such claims are well settled:
In order to establish individual liability under § 1983, a plaintiff must show (a)
that the defendant is a “person” acting “under the color of state law,” and (b)
that the defendant caused the plaintiff to be deprived of a federal right. See,
e.g., Monroe v. Pape, 365 U.S. 167 (1961). Additionally, “[i]n this Circuit
personal involvement of defendants in alleged constitutional deprivations is
a prerequisite to an award of damages under § 1983.” McKinnon v.
Patterson, 568 F.2d 930, 934 (2d Cir.1977).
***
An individual cannot be held liable for damages under § 1983 “merely
because he held a high position of authority,” but can be held liable if he was
personally involved in the alleged deprivation. See Black v. Coughlin, 76 F.3d
72, 74 (2d Cir.1996). Personal involvement can 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 ... by failing to act on
information indicating that unconstitutional acts were occurring. See Colon
v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995).
Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 122, 127 (2d Cir.
2004).3
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Follow ing the Supreme Court’ s decision in Ashcroft v. Iqbal, 129 S.Ct. 1937, 1948
(2009), there is some disagreement among district courts in this Circuit as to w hether all of the
foregoing “ Colon factors” still apply. See, e.g., Dilw orth v. Goldberg, 2011 WL 3501869 at * 17
(2d Cir. Jul. 28, 2011) (“ Iqbal has caused some courts to question w hether all five of the personal
involvement categories survive that decision.” ) (collecting cases). It is unclear w hether Iqbal
overrules or limits Colon, therefore, in the absence of contrary direction from the Second Circuit,
the Court w ill continue to apply those factors. See, Platt v. Incorporated Village of Southampton,
391 Fed.Appx. 62, citing Back v. Hastings on Hudson Union Free Sch. Dist., w hich sets forth all
five of the Colon bases for imposing supervisory liability.
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Judicial Immunity
It is well settled that judges generally have absolute immunity from being sued for
actions arising out of their judicial activities:
[J]udges generally have absolute immunity from suits for money damages
for their judicial actions. Such judicial immunity is conferred in order to insure
that a judicial officer, in exercising the authority vested in him, shall be free
to act upon his own convictions, without apprehension of personal
consequences to himself. Thus, even allegations of bad faith or malice
cannot overcome judicial immunity. In addition, as amended in 1996, § 1983
provides that “in any action brought against a judicial officer for an act or
omission taken in such officer's judicial capacity, injunctive relief shall not be
granted unless a declaratory decree was violated or declaratory relief was
unavailable.” 42 U.S.C. § 1983.
Judges are not, however, absolutely immune from liability for nonjudicial
actions, i.e., actions not taken in the judge's judicial capacity. In determining
whether an act by a judge is ‘judicial,’ thereby warranting absolute immunity,
we are to take a functional approach, for such immunity is justified and
defined by the functions it protects and serves, not by the person to whom
it attaches. The factors determining whether an act by a judge is a ‘judicial’
one relate to the nature of the act itself, i.e., whether it is a function normally
performed by a judge, and to the expectations of the parties, i.e., whether
they dealt with the judge in his judicial capacity.
In employing this functional analysis, the Supreme Court has generally
concluded that acts arising out of, or related to, individual cases before the
judge are considered judicial in nature.
Bliven v. Hunt, 579 F.3d 204, 209-210 (2d Cir. 2009) (citations and internal quotation
marks omitted).
ANALYSIS
In this case, Plaintiff’s complaints against Judge Kunego arise from actions that he
took in his judicial capacity. As stated in Defendant’s Memorandum of Law at 4, April 13,
2012, ECF No. 25-11, “It is clear that all of the allegations as against Judge Kunego took
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place between the date of his arrest (July 27, 2010) and the date of his guilty plea (April
27, 2011). Any interactions between the plaintiff and Judge Kunego amounted to nothing
more than than [sic] routine court proceedings.” Nothing submitted by Plaintiff shows that
Defendant acted in other than a judicial capacity in his various interactions with Plaintiff.
Plaintiff also states that Defendant is not a duly elected Town Court Justice for the Town
of Bergen, New York. However, that issue was put to rest in the affidavit of Michelle M.
Smith, Town Clerk and Tax Collector for the Town of Bergen, who stated, “the Honorable
Donald R. Kunego is a duly elected Town Court Justice for the town of Bergen, New York.”
Smith Aff. ¶ 2, Apr. 13, 2012, ECF No. 25-12. Included in Defendant’s papers is his oath
of office, notarized by Ms. Smith on December 15, 2009. Plaintiff has submitted no
evidence in admissible form to contradict the Genesee County records showing that Judge
Kunego is a duly appointed town justice. Other than disputing the Town Clerk’s legal
capability to attest that Defendant is a town justice, Plaintiff has submitted no evidence in
admissible form to raise a material issue of fact with regard to Defendant’s position as a
town justice.
Plaintiff’s argument, that, “While absolute judicial immunity may apply for money
damages pursuant to a § 1983 claim no judicial immunity may be applied when the causes
of action is pursuant to Constitutional Torts,” is without authority and misstates the present
state of the law. See Butz v. Economou, 438 U.S. 478, 503 (1978) (“This Court
nevertheless ascertained and announced what it deemed to be the appropriate type of
immunity from § 1983 liability in a variety of contexts.… The federal courts are equally
competent to determine the appropriate level of immunity where the suit is a direct claim
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under the Federal Constitution against a federal officer.”); Harlow v. Fitzgerald, 457 U.S.
800, 818, n.30 (1982) (“This case involves no issue concerning the elements of the
immunity available to state officials sued for constitutional violations under 42 U.S.C.
§ 1983. We have found previously, however, that it would be ‘untenable to draw a
distinction for purposes of immunity law between suits brought against state officials under
§ 1983 and suits brought directly under the Constitution against federal officials.’ Butz v.
Economou, 438 U.S., at 504.”).
The appropriate level of immunity in a lawsuit against a judicial officer for having
exercised his judicial duties is absolute immunity. From reading Plaintiff’s memorandum
of law, it appears he is under the mistaken belief that immunity does not apply when a
lawsuit is brought directly under the Constitution, as opposed to bringing it under 42 U.S.C.
§ 1983. See Pl.’s Mem. of Law ¶ 28. However, Defendant’s right to absolute immunity does
not turn on whether Plaintiff’s lawsuit here was brought under § 1983, or somehow directly
under the Constitution. See Ferranti v. Heinemann, 468 Fed. App’x 85, 86 (2d Cir. 2012)
Further, Plaintiff’s request to transfer his lawsuit to the “correct” court is denied.
Federal district court is a correct court for bringing constitutional claims against State
actors, such as a State judge. Even in State court, though, this claim would be dismissed
for the same reason this Court is dismissing it here. Moreover, the Court rejects Plaintiff’s
contention that the Town of Bergen has lost “all sovereignty and must provide a contract
or agreement they seeks [sic] to enforce with Plaintiff in order to have standing to invoke
the Court[’s] jurisdiction.” Pl.’s Mem. of Law ¶¶ 31–32. Finally, to the extent that Plaintiff
disputes whether the Town of Bergen has properly filed a blanket bond, instead of an
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insurance policy, and whether the Town’s actions meet the requirements of State law, the
Court, having dismissed the Federal causes of action, declines to exercise jurisdiction over
the remaining potential State causes of action. 28 U.S.C. § 1367(c).
Accordingly, Defendant is entitled to summary judgment on the basis of absolute
judicial immunity.
CONCLUSION
Defendant’s motion for summary judgment, ECF 25, is granted, and this action is
dismissed with prejudice.
IT IS SO ORDERED.
Dated: October 9, 2012
Rochester, New York
ENTER:
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
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