Mathis v. Bess, 761 F. Supp. 1023 (S.D.N.Y. 1991)

*1024 Davis Polk & Wardwell, New York City (Charles E.F. Millard, Jr., Steven J. Pappas, Frederick Kessler, Ogden N. Lewis, of counsel, for plaintiff.

Robert Abrams, Atty. Gen. of the State of N.Y., Dept. of Law, New York City by Harvey Golubock, and Winthrop, Stimson, Putnam & Roberts, New York City by Peter H. Kaminer, Thomas F. Clauss, Jr., for defendants.

ROBERT P. PATTERSON, Jr., District Judge.

Defendant moves for judgment on the pleadings and plaintiff moves to file a second amended complaint in this § 1983 class action, commenced by plaintiff pro se on June 10, 1985, seeking injunctive, declaratory and monetary relief from defendants who he alleges were responsible for the six-year delay in his state criminal appeal.^[1] The facts underlying plaintiff's claims and the procedural history of this action are summarized in the Court's earlier opinions. See Mathis v. Bess, No. 85 Civ. 4426, 1989 WL 74409 (S.D.N.Y. June 29, 1989) (ordering that an evidentiary hearing be held on the issue of prejudice to plaintiff as a result of the delay); Mathis v. Bess, 692 F. Supp. 248 (S.D.N.Y.1988) (Goettel, J.) (denying class certification and dismissing certain claims); Mathis v. Clerk of the First Dep't, Appellate Div., 631 F. Supp. 232 (S.D.N.Y.1986) (Sweet, J.) (denying defendant's motion to dismiss and plaintiff's motion to amend complaint).^[2]

Plaintiff's first amended complaint, filed with assistance of counsel on October 8, 1987 and which is the subject of defendants' motion, named the following defendants: (1) Thomas J. Bess ("Bess") in his official capacity as Supervising Court Reporter, Criminal Court, New York City; (2) Geoffrey Q. Ralls ("Ralls") in his official capacity as administrator of the Assigned Counsel Plan for the Supreme Court of the State of New York, Appellate Division ("the Appellate Division"); (3) Phillip L. Weinstein ("Weinstein") in his official capacity as Attorney-in-Charge of the Criminal Appeals Bureau of the Legal Aid Society of New York City which represented plaintiff from the date of his conviction for armed robbery until May 17, 1983;^[3] (4) *1025 Thomas Coughlin, III ("Coughlin") in his official capacity as Commissioner of the Department of Correctional Services of the State of New York; (5) Harold J. Reynolds ("Reynolds") in his official capacity as Clerk of the Appellate Division; (6) Albert M. Rosenblatt ("Rosenblatt") in his official capacity as Chief Administrative Judge of the State of New York; (7) Donald Oshinsky, Linda Pazzani, Anna L. Bolgier, Joel Machlis, Rose Dunn, Anthony Moscato, Sanford Aranow and Michael Frankel (collectively "the individual stenographers") in their individual capacities as stenographers employed in the Criminal Division of the Supreme Court of New York County; (8) Peter F. Anderson ("Anderson"), a New York attorney assigned by the Appellate Division who represented plaintiff on appeal of his criminal conviction between May 17, 1983 and July 5, 1984; and (9) Ruben S. Schofield ("Schofield"), a New York attorney assigned by the Appellate Division who represented plaintiff on the same criminal appeal from July 5, 1984 to October 2, 1986. Amended Complaint ¶¶ 17-25. Plaintiff's first amended complaint asserts jurisdiction directly under the fourteenth amendment as well as under § 1983. Am. Compl. ¶¶ 5-6; see Pl. Reply Mem. filed Oct. 5, 1990 at 10. The individual counts in the complaint, however, are not specifically delineated as either statutory or constitutional claims.

On January 17, 1989 plaintiff filed his motion seeking leave under Rule 15 of the Federal Rules of Civil Procedure to file a second amended complaint.^[4] Plaintiff's "Revised Proposed Second Amended Complaint Class" [sic] asserts claims against: (1) Bess, Ralls, Coughlin, Reynolds, Rosenblatt, the individual stenographers, Anderson and Schofield, all named in plaintiff's first amended complaint;^[5] (2) John Doe and Jane Roe in their official capacities as Supervising Court Stenographers for the Supreme Court of the State of New York, New York and Bronx Counties, respectively; (3) the Central Screening Committee of the Assigned Counsel Plan for the Appellate Division of the First Department ("the Central Screening Committee" or "the Committee"); (4) Matthew T. Crosson ("Crosson") in his official capacity as Chief Administrator of the Office of Court Administration for the State of New York; and (5) the State of New York. Millard Aff. filed Oct. 5, 1990, Exh. 1 at ¶¶ 17-29. Like the first amended complaint, the Revised Proposed Second Amended Complaint contains both class claims and individual claims and seeks injunctive, declaratory and monetary relief.

On February 17, 1989 named and proposed defendants Bess, Ralls, Coughlin, Reynolds, Rosenblatt, the individual stenographers, John Doe, Jane Roe, the Central Screening Committee, Crosson and the State of New York (collectively "the state defendants") moved for judgment on the pleadings under Rule 12(c) on the first amended complaint or, in the alternative, for summary judgment dismissing the complaint under Rule 56(b). On July 26, 1989 at a joint pretrial conference in this action and plaintiff's habeas corpus action, the parties agreed to conduct joint discovery for the two actions, Mathis v. Bess and Mathis v. Hood. Discovery motions were filed in this action in and after August 1989, although other discovery proceeded relating to both actions. The Court heard oral argument on the instant motions on December 3, 1990, reserving decision, and on December 18, 1990 ordered additional briefing.

*1026 For the reasons set forth below, the state defendants' motion is granted in part and denied in part. Plaintiff's motion to file a second amended complaint is granted in part and denied in part. Shamel Atkins is joined as a plaintiff by the Court sua sponte pursuant to Rule 21 of the Federal Rules of Civil Procedure.

Because the parties have submitted matters outside the pleadings not excluded by the Court, the Court will treat defendants' motion for judgment on the pleadings as one for summary judgment. See Fed.R. Civ.P. 12(c). Summary judgment is appropriate if the evidence offered demonstrates that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The burden rests on the moving party to demonstrate the absence of a genuine issue of material fact, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608, 26 L. Ed. 2d 142 (1970), and the Court must view the facts in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed. 2d 176 (1962).

On February 28, 1991 the Court received an unsolicited letter from an inmate named Shamel Atkins serving a 4.5 to 9-year term at the Clinton Correctional Facility. Atkins has not received substitute counsel since his assigned counsel was dismissed in early March 1990. Atkins pleaded for assistance from this Court, noting that even if counsel were appointed immediately, it would be unlikely that his appeal would be heard before his October 15, 1991 release date. See Letter stamped Feb. 28, 1991 (attached as Exhibit A to this opinion).^[6]

The Atkins letter demonstrates that the problems Mathis sought to rectify by commencing this action in 1985 are real and persistent. Six years later, indigent criminal defendants still have no practical or meaningful way of obtaining the direct appeal belonging to them as of right. See Mathis v. Hood, 851 F.2d 612, 614 (2d Cir. 1988); Ralls v. Manson, 503 F.2d 491, 494 (2d Cir.1974) (Lumbard, J., concurring). Although Mathis' claims for injunctive relief appear moot and any injunctive award would not benefit him directly, the Court is convinced that joining Atkins as a plaintiff in this action sua sponte for the purpose of pursuing injunctive relief will serve the interests of judicial economy and substantial justice for all parties.

Rule 21 of the Federal Rules of Civil Procedure provides:

Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just.

See also Mullaney v. Anderson, 342 U.S. 415, 72 S. Ct. 428, 96 L. Ed. 458 (1952); Andujar v. Rogowski, 113 F.R.D. 151, 154 (S.D.N.Y.1986); In re Osage Exploration Co., 104 F.R.D. 45, 49 (S.D.N.Y.1984) (granting motion to add new plaintiffs); Savoia Film S.A.I. v. Vanguard Films, Inc., 10 F.R.D. 64 (S.D.N.Y.1950). Courts may join new parties as plaintiffs sua sponte in order to prevent defendants from being subjected to a multiple lawsuit over the same issues. See Reichenberg v. Nelson, 310 F. Supp. 248, 251 (D.Neb.1970); Rekeweg v. Federal Mut. Ins. Co., 27 F.R.D. 431 (N.D.Ind.1961). Although Rule 25 provides for substitution of parties in limited circumstances, parties may be substituted under Rule 21 in the discretion of the court in situations not covered by Rule 25. Hackner v. Guaranty Trust Co., 117 F.2d 95, 98 (2d Cir.), cert. denied, 313 U.S. 559, 61 S. Ct. 835, 85 L. Ed. 1520 (1941) (invoking Rule 21 to substitute a new plaintiff who met amount in controversy requirement). Atkins may be named in plaintiff's second amended complaint in the individual and class claims as counsel sees fit and is hereinafter treated as a plaintiff for *1027 purposes of examining the proposed second amended complaint.

Defendants in this action cannot claim to be prejudiced by the Court's joinder of Atkins as a second plaintiff for the purposes of asserting claims for equitable relief. Because claims to be asserted by Atkins arise from the same conduct, transactions and occurrences as Mathis' claims and since Atkins and Mathis share a strict identity of interest, Atkins' claims relate back to as early as the filing of the amended complaint for statute of limitations purposes. See Andujar v. Rogowski, 113 F.R.D. at 155 (collecting Rule 21 cases). Discovery thus far has focused on Mathis' habeas proceeding so that earlier joinder of Atkins would not have materially affected the course of this litigation. See Mullaney v. Anderson, 342 U.S. at 417, 72 S. Ct. at 430.

The general rule is that absent waiver or congressional override, the eleventh amendment bars any suit in federal court against a state itself regardless of the form of relief requested and bars damages suits in federal court against state officials sued in their official capacity. See Brandon v. Holt, 469 U.S. 464, 471, 105 S. Ct. 873, 877, 83 L. Ed. 2d 878 (1985); Kentucky v. Graham, 473 U.S. 159, 161 n. 2, 169, 105 S. Ct. 3099, 3103 n. 2, 3107, 87 L. Ed. 2d 114 (1985) (§ 1983 action); Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100-01, 104 S. Ct. 900, 907-08, 79 L. Ed. 2d 67 (1984); Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S. Ct. 347, 350, 89 L. Ed. 389 (1945). The immunity created by the eleventh amendment is a limitation on the subject matter jurisdiction of the federal courts, see Pennhurst, 465 U.S. at 98, 104 S. Ct. at 906, and state defendants are entitled to an early determination on the issue. See Smith v. Reagan, 841 F.2d 28, 30 (2d Cir.1988).

Relying on the eleventh amendment as a guide to congressional intent, the Supreme Court held in Will v. Michigan Dep't of State Police, 491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989), that "neither a State nor its officials acting in their official capacities are `persons' under § 1983" for the purpose of claims for money damages. Id. 109 S. Ct. at 2312. This interpretation applies equally to allegations of unconstitutional acts and unconstitutional omissions or failures to act. See id. at 2305-06. Will v. Michigan Department of State Police did not address the issue of whether suit may be brought based on the fourteenth amendment in appropriate cases when there is no statutory relief available. Accordingly, this Court held in Santiago v. New York State Dep't of Correctional Servs., 725 F. Supp. 780 (S.D.N.Y.1989), reh'g denied, 734 F. Supp. 653 (S.D.N.Y. 1990), appeal filed, No. 90-7020 (2d Cir. 1990), argued, (2d Cir. Feb. 13, 1991) (Pierce, Walker, Winter, JJ.), that the eleventh amendment did not bar plaintiff's claim against a state agency, the New York Department of Correctional Services (DOCS), for retroactive damages under the equal protection clause of the fourteenth amendment. Id. at 788.

Plaintiffs' proposed claims for injunctive and declaratory relief against the State of New York are not required in order to grant effective relief to plaintiffs and fall squarely within the prohibition of the eleventh amendment. Accordingly, plaintiffs' motion to amend on that basis is denied. Plaintiffs' proposed claims for damages against the State of New York under § 1983 are barred by Will v. Michigan Department of State Police. However, plaintiffs' proposed claims for damages against the State of New York directly under the fourteenth amendment may be brought under Santiago and leave to amend the complaint to assert such claims is granted.

Plaintiffs' motion to amend the complaint in order to add claims seeking money damages under § 1983 from Bess, Ralls, Reynolds, John Doe and Jane Roe in their *1028 official capacities is denied under Will.^[7] Plaintiffs' motion to add claims for damages under the fourteenth amendment against Bess, Ralls, Reynolds, John Doe and Jane Roe is also denied since Santiago would allow such claims only against state agencies not individual officers acting in their official capacity.

Any attempt by the individual state defendants to bar plaintiff Atkins' claims for injunctive relief on eleventh amendment grounds is ill-founded. See Ex Parte Young, 209 U.S. 123, 155-59, 28 S. Ct. 441, 452-53, 52 L. Ed. 714 (1908) (habeas corpus) (state officer may be enjoined despite eleventh amendment from enforcing rate act alleged to be unconstitutional under the fourteenth amendment). Interpreting Ex Parte Young, the Supreme Court has indicated that injunctive relief may be entered against state officers where compliance with the injunction would have only an ancillary effect on state funds. See Edelman v. Jordan, 415 U.S. 651, 668, 94 S. Ct. 1347, 1358, 39 L. Ed. 2d 662 (1974) ("State officials, in order to shape their official conduct to the mandate of the Court's decrees, would more likely have to spend money from the state treasury than if they had been left free to pursue their previous course of conduct.").

The Supreme Court's interpretation of § 1983 is consistent:

[o]f course a State official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because "official-capacity actions for prospective relief are not treated as actions against the State."

Will v. Michigan Dep't of State Police, 491 U.S. 58, 109 S. Ct. 2304, 2311, 105 L. Ed. 2d 45 (1989) (quoting Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 105 S. Ct. 3099, 3106 n. 14, 87 L. Ed. 2d 114 (1985)) (holding that neither state nor state officials acting in their official capacities were "persons" under § 1983).

Accordingly, because the injunctive relief requested by plaintiffs in this action would have only an ancillary effect on the state treasury and would not have the practical effect of a damage award against the state, the claims for injunctive relief asserted in the first amended complaint against Bess, Ralls, Coughlin, Reynolds and Rosenblatt are not subject to dismissal if such persons hold the official positions on which they were sued.^[8] The Court takes judicial notice of the fact that defendants Rosenblatt and Reynolds no longer hold such positions and dismisses plaintiffs' claims for injunctive relief as to them. In view of the Court's joinder of a new plaintiff having a live claim for injunctive relief, defendants' motion for summary judgment dismissing the claims for injunctive relief in the amended complaint against Bess, Ralls and Coughlin is denied without prejudice to renew. Plaintiffs' motion to assert claims for injunctive relief against John Doe, Jane Roe and Crosson in the second amended complaint is granted.

Because the individual stenographers are not sued in their official capacities, the eleventh amendment is of no assistance to them. See Dube v. State Univ. of New York, 900 F.2d 587 (2d Cir.1990), petition for cert. filed, No. 90-549 (Sept. 27, 1990). Applying Will v. Michigan Dep't of State Police to plaintiffs' § 1983 claims, the most this Court can conclude as a matter of law is that the individual stenographers are state employees. See N.Y. Jud.Law § 39(6) (McKinney 1983).^[9] Since *1029 the Court must draw all inferences in favor of Mathis as the non-moving party, summary judgment dismissing the existing complaint against the individual stenographers is denied.^[10]

Finally, neither absolute judicial immunity nor quasi-judicial immunity applies to the individual stenographers in this action. See Forrester v. White, 484 U.S. 219, 108 S. Ct. 538, 98 L. Ed. 2d 555 (1988) (state court judge sued in individual capacity for dismissing probation officer not entitled to absolute immunity for judicial acts); McLallen v. Henderson, 492 F.2d 1298, 1299-1300 (8th Cir.1974) (court reporters not entitled to defense of quasi-judicial immunity since their duties are ministerial); McCray v. State of Maryland, 456 F.2d 1, 4 (4th Cir.1972) (same).

The Central Screening Committee ("the Committee") is not yet a party to this action but is named in plaintiffs' Revised Proposed Second Amended Complaint. Because the state defendants answered the amended complaint on November 6, 1987, an amendment to the pleadings at this juncture is not plaintiffs' right but is instead a matter for the Court's discretion. Fed.R. Civ.P. 15(a). Plaintiffs seek to add claims for injunctive, declaratory and monetary relief against the Committee itself. There are no proposed claims against the Committee members. Tr. at 38.

Although the departmental screening committee was originally composed of volunteer attorneys consisting of representatives of various bar associations, the Central Screening Committee is an entity formed in 1979 composed of unpaid attorneys named by the Bar Associations to assist the City in screening attorneys' qualifications for the criminal defense of the indigent accused under Section 18-B of the County Law of New York. In 1980 the Appellate Division, First Department, by order made the Central Screening Committee an adjunct to that court's authority over the Assigned Counsel Plan. N.Y. Comp.Codes R. & Regs. tit. 22 § 612.1 (1986). The Committee has authority and responsibility to oversee the operation of the assigned counsel plan, id. § 612.3, to screen applicants for panel membership and determine their qualifications, id. § 612.6(a)-(b), to certify a list of qualified attorneys to the plan administrator, id. § 612.6(c), and to file annual evaluations of the plan with the Appellate Division. Id. § 612.7.

Despite these regulations, it is the plan administrator who "shall designate an attorney from the appropriate county panel" and who shall prepare panels for appeals upon receipt of the lists of attorneys certified by the bar associations. Assigned Counsel Plan approved April 28, 1966 para. IV.C (Def. Supp. Mem. filed Jan. 10, 1991, Exh. C). The Appellate Division may at any time add or remove panel attorneys. N.Y.Comp.Codes R. & Regs. tit. 22 § 612.9(a) (1986). Budgets for the Unified Court System covering the years 1983 through 1990 confirm that ultimate authority for the selection and appointment of counsel for indigent criminal defendants lies with the Appellate Division and the plan administrator. Def. Supp. Mem., Exh. D. See also N.Y.Comp.Codes R. & Regs. tit. 22 § 80.3(c) (1986) ("Supervision of the administration and operation of the following programs shall remain the responsibility of the appellate divisions or Presiding Justices, as now provided by statute: assignments of counsel...."). The Central Screening Committee's role is not functional but rather of a watchdog nature.

Since Ralls is already a defendant in this litigation, justice does not require that *1030 plaintiffs be granted leave to add separate claims against the Central Screening Committee. Accordingly, plaintiffs' motion to amend the complaint to add claims against the Central Screening Committee is denied.

Summary judgment dismissing all claims in the amended complaint seeking injunctive relief against Reynolds and Rosenblatt is granted. Summary judgment dismissing (1) the claims for damages against the individual stenographers and (2) the claims for injunctive relief against Bess, Ralls and Coughlin is denied.

Plaintiffs are granted leave to file a second amended complaint adding (1) claims for damages solely under the fourteenth amendment against the State of New York and (2) claims for injunctive relief whether under § 1983 or directly under the constitution against John Doe, Jane Roe and Crosson. The second amended complaint shall reflect the Court's joinder of Shamel Atkins as a plaintiff.

IT IS SO ORDERED.

*1031

*1032

[1] The Appellate Division affirmed plaintiff's conviction by memorandum decision on October 20, 1987. See People v. Mathis, 133 A.D.2d 1019, 519 N.Y.S.2d 989 (App.Div. 1st Dep't 1987), appeal denied, 70 N.Y.2d 957, 520 N.E.2d 559, 525 N.Y.S.2d 841 (1988), reh'g denied, 71 N.Y.2d 1030, 526 N.E.2d 57, 530 N.Y.S.2d 565 (1988).

[2] Plaintiff filed a separate petition for a writ of habeas corpus, Docket No. 87 Civ. 6234, on August 27, 1987. See Mathis v. Hood, 851 F.2d 612 (2d Cir.1988); Mathis v. Hood, No. 87 Civ. 6234, 1990 WL 100869 (S.D.N.Y. July 11, 1990). In the latter opinion, this Court held that inordinate appellate delay had violated petitioner's constitutional rights to due process and effective assistance of counsel. The Court ordered that the affirmance of Mathis' conviction be set aside and Mathis be released pending a new appeal. The July 11, 1990 decision is under appeal.

[3] Judge Goettel dismissed the first Amended Complaint against Weinstein on August 10, 1988. Although the proposed second amended complaint still contains references to Weinstein, it contains no new factual allegations involving him. In view of Judge Goettel's decision, counsel for plaintiff is directed to eliminate Weinstein from all further papers and pleadings filed in this action.

[4] In a letter to the Court dated May 24, 1990 counsel for plaintiff stated:

The first Amended Complaint was designed to put pressure on government officials [sued in their official capacities] involved in the appellate process by seeking injunctive relief on behalf of the class. When Judge Goettel refused to certify the class, Mathis sought permission to amend his complaint to name additional parties and to seek damages, in order to continue to press for systemic reform, against some of the defendants who had previously been sued in their official capacities for injunctive relief only.

Letter at 2.

[5] Weinstein is improperly named in the Revised Proposed Second Amended Complaint. See supra note 3.

[6] The Court also received a letter dated March 5, 1991 from Atkins' mother, Ms. D. Atkinson, requesting this Court's intervention. Ms. Atkinson's letter is appended to this opinion as Exhibit B.

[7] The Court rejects plaintiffs' argument, Tr. at 66, that although Bess, Ralls, Reynolds and John Doe are alleged to be state employees in the pleadings, they are being sued as local rather than state officials and thus not subject to the eleventh amendment. Plaintiff conceded at oral argument that as state employees they have no liability for damages under § 1983. Tr. at 33-34.

[8] Judge Goettel did not dismiss Mathis' claims for equitable relief. He held only that Mathis could not meet the typicality requirement imposed upon named plaintiffs in a class action because at the time the class would have been certified, Mathis no longer had a live controversy. See Mathis v. Bess, 692 F. Supp. 248, 257-58 (S.D.N.Y.1988).

[9] See generally Durante v. Evans, 116 Misc.2d 814, 456 N.Y.S.2d 911, 917 (Sup.Ct.1982), aff'd as modified, 94 A.D.2d 141, 464 N.Y.S.2d 264 (App.Div.1983), aff'd in relevant part, 62 N.Y.2d 719, 465 N.E.2d 367, 476 N.Y.S.2d 828 (1984).

[10] The Court rejects the state's argument that plaintiffs' § 1983 claim against the stenographers is untimely on statute of limitations grounds. Mathis' original pro se complaint provided these defendants with sufficient notice of the pendency of a lawsuit because it named "STENOGRAPHERS (In charge of transcribing my trial minutes)." See Mathis v. Bess, 692 F. Supp. 248, 253 (S.D.N.Y.1988) ("the substance of the original pro se complaint ... was addressed to the inaction of the court stenographers").