Opinion
06 Civ. 6910 (SAS).
March 1, 2007
Plaintiff (Pro Se): H.E. Elya Peker, Brooklyn, New York.
Counsel for Defendant: Lawrence Heath Fogelman, Assistant United States Attorney, New York, New York.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Elya Peker is suing Anna Steglich, a Deputy Clerk of the United States Court of Appeals for the Second Circuit ("Steglich" or "Government"), alleging violations of the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-2680 ("FTCA"). Peker alleges that Steglich damaged his property when she folded his posters, which had been filed with the court as an exhibit in a copyright infringement suit he had been pursuing. Peker seeks damages in the amount of one thousand dollars.
See Plaintiff's Motion for Summary Judgment ("Pl. Motion") ¶ 3.
See Complaint ("Compl.") at 1. Citations to the complaint refer to page numbers, not paragraph numbers.
See id.
See Plaintiff's Request for Pre-Motion Conference re: Summary Judgment ("Pl. Request") ¶ 4. The Government characterizes the one thousand dollars as both compensatory and punitive in nature. See Government's Memorandum of Law in Support of Defendant's Motion to Dismiss the Complaint ("Gov. Mem."), at 1. The FTCA provides, however, that the United States shall not be liable for punitive damages. See 28 U.S.C. § 2674 ("The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.").
The Government first moves to substitute the United States as a defendant in this action in place of Steglich. The Government then moves to dismiss this case on two grounds: first, lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1); second, failure to state a claim on which relief may be granted under Rule 12(b)(6). For the following reasons, the Government's motions to substitute the United States as a defendant and to dismiss for failure to state a claim are granted, but its motion to dismiss for lack of subject matter jurisdiction is denied.
See Gov. Mem. at 2-3.
See id. at 3-7.
See id. at 8-11.
II. BACKGROUND
Several years ago, Peker filed a copyright infringement suit. To prosecute the appeal in that case, Peker filed with the Second Circuit Court of Appeals an exhibit containing fourteen large posters and ten small prints. Steglich folded the large posters so that they would fit in the court's document folder. When Peker retrieved his posters, he objected to the fact that they were in "badly damaged condition."
See Compl. at 1.
See Plaintiff's Motion for Summary Judgment: Concise Statement of Undisputed Facts ("Pl. Motion #2") ¶ 1.
See id. ¶ 2.
Id. ¶ 1.
Peker sought compensation in the amount of one thousand dollars from the Administrative Office of the United States Courts, which denied his claim in full. Peker then commenced the present case, in which he seeks one thousand dollars in damages because his posters, which "have been folded into pieces, with creases, are aesthetically spoiled, not enjoyable, not sellable and not presentable, badly damaged."
See Letter from John L. Chastain, Assistant General Counsel for the Administrative Office of the United States Courts, to Elya A. Peker, dated January 24, 2006.
Pl. Motion #2 ¶ 2.
III. LEGAL STANDARD
A. Rule 12(b)(1)
"A court must decide a 12(b)(1) motion before other motions to dismiss." Rule 12(b)(1) provides for the dismissal of a claim when the federal court lacks subject matter jurisdiction. A federal court generally lacks subject matter jurisdiction over a case commenced against the United States because the United States "is immune from suit save as it consents to be sued." Waiver of sovereign immunity is thus a prerequisite to finding subject matter jurisdiction. "[T]he burden of demonstrating that the court has subject matter jurisdiction over the case falls on the plaintiff as it is the plaintiff who seeks to invoke the court's jurisdiction." When the plaintiff is proceeding pro se, a court must construe his submissions liberally.
Integrated Util. Inc. v. United States, No. 96 Civ. 8983, 1997 WL 529007, at *2 (S.D.N.Y. Aug. 26, 1997).
See Williams v. United States, 947 F.2d 37, 39 (2d Cir. 1991).
United States v. Mitchell, 445 U.S. 535, 538 (1980) (citing United States v. Sherwood, 312 U.S. 584, 586 (1941)).
See Presidential Gardens Assoc. v. United States ex. rel. Sec'y of Hous. and Urban Dev., 175 F.3d 132, 140 (2d Cir. 1999).
Goonewardena v. New York, No. 05 Civ. 8554, 2007 WL 510097, at *6 (S.D.N.Y. Feb. 14, 2007).
See Bernstein v. New York, No. 06 Civ. 5681, 2007 WL 438169, at *2 (S.D.N.Y. Feb. 9, 2007).
B. Rule 12(b)(6)
Under Rule 12(b)(6), a motion to dismiss for failure to state a claim should be granted "when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." " All complaints must be read liberally; dismissal on the pleadings never is warranted unless the plaintiff's allegations are doomed to fail under any available legal theory." Pro se complaints are to be read even more liberally than other complaints. Nonetheless, "[w]hile the pleading standard is a liberal one, bald assertions and conclusions of law will not suffice."
Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005).
Phillips v. Girdich, 408 F.3d 124, 128 (2d Cir. 2005) (emphasis in original).
See id.
Amron v. Morgan Stanley Inv. Advisors Inc., 464 F.3d 338, 344 (2d Cir. 2006) (citing Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996)).
IV. APPLICABLE LAW
Section 2679(d)(1) of the FTCA provides,
Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.
28 U.S.C. § 2679(d)(1) (emphases added).
The Code of Federal Regulations clarifies how the certification is to be made: "The United States Attorney for the district where the civil action or proceeding is brought . . . is authorized to make the statutory certification that the Federal employee was acting within the scope of his office or employment with the Federal Government at the time of the incident out of which the suit arose."
B. Rule 12(b)(1)
Upon the substitution of the United States as the defendant, the action "shall proceed in the same manner as any action against the United States filed pursuant to 1346(b) of this title and shall be subject to the limitations and exceptions applicable to those actions." A pertinent limitation for this case is that district courts do not have subject matter jurisdiction unless "the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." "The statute looks to state substantive law to determine whether the plaintiff has a valid cause of action." If there is no tort cognizable under state law, the United States has not waived sovereign immunity under the FTCA and the case must be dismissed for lack of subject matter jurisdiction.
Syms v. Olin Corp., 408 F.3d 95, 107 (2d Cir. 2005).
See Contemporary Mission, Inc. v. United States Postal Serv., 648 F.2d 97, 104 n. 9 (2d Cir. 1981).
New York recognizes judicial immunity for its clerks under certain circumstances. The Appellate Division has stated the test as follows: "[J]udicial immunity applies to all acts of auxiliary court personnel that are basic and integral parts of the judicial function, unless those acts are done in the clear absence of all jurisdiction." New York courts, however, have not granted judicial immunity to all clerks' actions. Notably, they do not grant judicial immunity to ministerial acts performed after the "judicial decision making process ha[s] ended."
See Swain v. State, 741 N.Y.S.2d 788, 789 (4th Dep't 2002) ("[T]he allegedly negligent acts of the Court and its clerks in connection with the assignment [of counsel for an indigent defendant] are cloaked with judicial immunity."); Weiner v. State, 710 N.Y.S.2d 325, 327 (1st Dep't 2000) ("The preparation of petitions by Family Court petition clerks is an integral part of the judicial process of hearing and ruling upon a violation of visitation claim, and, accordingly, judicial immunity precludes any negligence claim.").
Weiner, 710 N.Y.S.2d at 327 (citations and quotation marks omitted).
Schwandt v. State, 777 N.Y.S.2d 599, 603 (Ct.Cl. 2004) ("The judicial decision making process had ended leaving the Clerks with the ministerial duty to transmit the information about a concluded proceeding to ensure an individual's liberty would not be jeopardized. The transmittal of information, or the failure to do so, on these facts is not an integral part of the judicial process which would warrant application of judicial immunity.").
C. Rule 12(b)(6)
A plaintiff fails to state a cause of action under the FTCA if the United States can effectively assert an immunity defense that the employee would have been able to raise. Federal law confers judicial immunity on clerks under some circumstances and qualified immunity under others. To determine whether a clerk's actions are cloaked with absolute immunity, the Second Circuit, at the direction of the United States Supreme Court, follows a functional approach and grants absolute immunity when the clerk is performing a discretionary act or is performing a duty that inherently relates to resolving a dispute. The Second Circuit's analysis of a qualified immunity claim is a three-step process;
See 28 U.S.C. § 2674 ("With respect to any claim under [the FTCA], the United States shall be entitled to assert any defense based upon judicial or legislative immunity which otherwise would have been available to the employee of the United States whose act or omission gave rise to the claim, as well as any other defenses to which the United States is entitled."); see also Tinsley v. Widener, 150 F. Supp. 2d 7, 12 (D.D.C. 2001) (finding that "[j]udicial immunity also protects the United States from the plaintiff's FTCA suit," and therefore dismissing the suit for failure to state a cause of action).
See, e.g., Gutierrez v. Vergari, 499 F. Supp. 1040, 1047 n. 5 (S.D.N.Y. 1980) ("Ministerial conduct enjoys only a qualified immunity.").
See Cleavinger v. Saxer, 474 U.S. 193, 201 (1985) ("[I]n general, our cases have followed a `functional' approach to immunity law.") (citation omitted).
See Oliva v. Heller, 839 F.2d 37, 39-40 (2d Cir. 1988).
See Rodriguez v. Weprin, 116 F.3d 62, 66 (2d Cir. 1997) ("A court's inherent power to control its docket is part of its function of resolving disputes between parties. This is a function for which judges and their supporting staff are afforded absolute immunity.").
First, we must determine whether the plaintiff has alleged a violation of a constitutional right. Then we consider if the violated right was clearly established at the time of the conduct. Finally, if plaintiff had a clearly established, constitutionally protected right that was violated by the actions of the [defendants], he or she must demonstrate that defendants' actions were not objectively reasonable. This three step should typically be done in sequential order.
Harhay v. Town of Ellington Bd. of Educ., 323 F.3d 206, 211 (2d Cir. 2003) (citations omitted).
"Stated differently, an official is entitled to qualified immunity (1) if the plaintiff has not alleged a violation of a constitutional right, (2) if that right was not clearly established at the time of the conduct, or (3) if the official's actions were not objectively unreasonable in light of clearly established law."
Almonte v. City of Long Beach, ___ F.3d ___, 2007 WL 466250, at *6 (2d Cir. Feb. 14, 2007).
V. DISCUSSION
The United States Attorney for the Southern District of New York has certified that Deputy Clerk Anna Steglich was acting within the scope of her employment at the time of the incident out of which this suit arose. Because this certification is proper, Peker's tort claims against Steglich are dismissed, and the United States is substituted as the defendant.
See Certification of Michael J. Garcia, United States Attorney for the Southern District of New York, dated December 8, 2006.
See Celestine v. Mount Vernon Neighborhood Health Ctr., 289 F. Supp. 2d 392, 298 (S.D.N.Y. 2003), aff'd, 403 F.3d 76 (2d Cir. 2005) (substituting the United States as a party in place of a federal employee based on the certification of a United States Attorney); Bueno v. Sheldon, No. 99 Civ. 10348, 2000 WL 565192, at *2 (S.D.N.Y. May 9, 2000) (same).
B. Rule 12(b)(1)
New York case law suggests that the handling of exhibits after the conclusion of a case is not an "integral part of the judicial process" because the judicial process has ended. It is unclear from the pleadings whether the judicial process had indeed ended in Peker's copyright suit before Steglich folded the posters; however, in light of the fact that "[w]e construe complaints filed by pro se litigants liberally and interpret them to raise the strongest arguments that they suggest," I shall assume that Peker is alleging that the posters were damaged after their use as an exhibit. Because Peker has a valid cause of action under New York law, this Court has subject matter jurisdiction over this case.
Weiner, 710 N.Y.S.2d at 327.
Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006) (quotation marks and citation omitted).
See Pl. Motion #2 ¶ 2 (stating that the damage occurred when Steglich was trying to "make [the posters] fit into the court's document folder").
C. Rule 12(b)(6)
Steglich's actions were ministerial and, because her actions occurred after the case had ended, they did not relate to resolving the parties' dispute. Therefore, the Government is not entitled to absolute immunity. Nonetheless, ministerial conduct still enjoys qualified immunity under federal law. Because Peker has failed to allege a constitutional violation, he has not overcome the Government's claim of qualified immunity. Therefore, Peker has failed to state a claim on which relief may be granted.
See Oliva, 839 F.2d at 39-40.
See Rodriguez, 116 F.3d at 66.
See Kitchen v. Doe, No. 88 Civ. 7885, 1991 WL 4730, at *1 (S.D.N.Y. Jan. 16, 1991) ("[A] court clerk acting within the scope of his official duties enjoys at least qualified immunity from suit."); Kane v. Yung Won Han, 550 F. Supp. 120, 123 (E.D.N.Y. 1982) ("[T]he type of immunity extended should depend on whether the particular act in question was of a judicial nature, in which case the immunity should be absolute, or of a ministerial nature, to which only qualified immunity should attach."); Gutierrez, 499 F. Supp. at 1047.
Even if Peker were to allege an injury to a constitutional right, he could not demonstrate that Steglich acted unreasonably when she folded his posters. At the conclusion of a case, a court must file certain documents. It is reasonable that a clerk would fold documents to fit them into a folder for storage. Cf. Federal Rule of Appellate Procedure 11(b)(2) ("If the exhibits are unusually bulky or heavy, a party must arrange with the clerks in advance for their transportation and receipt.").
VI. CONCLUSION
For the foregoing reasons, defendant's motion is denied in part and granted in part. The Clerk of the Court is directed to close this motion (docket no. 11) and this case.
SO ORDERED: