19‐973‐cv
Kaminski v. Semple

                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                                  SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A
PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED
BY COUNSEL.


              At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 18th day of December, two thousand nineteen.

PRESENT:            ROBERT D. SACK,
                    BARRINGTON D. PARKER,
                    DENNY CHIN,
                                         Circuit Judges.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
JOHN S. KAMINSKI,
                                        Plaintiff‐Appellant,

                                        v.                                         19‐973‐cv

SEMPLE, COMMISSIONER OF DEPT. OF
CORRECTIONS, DECLARATORY ONLY, GEORGE
JEPSEN, ATTORNEY GENERAL (FORMERLY),
STATE OF CONNECTICUT, DECLARATORY
ONLY, WALTER CHARLES BANSLEY, IV,
ATTORNEY, OF BANSLEY, ANTHONY & BURDO
(INMATE LEGAL ASSISTANCE CONTRACTOR)
(ILAP), INDIVIDUAL/CORPORATE,
                                        Defendants‐Appellees.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
FOR PLAINTIFF‐APPELLANT:                  JOHN S. KAMINSKI, pro se, Suffield,
                                          Connecticut.

FOR DEFENDANTS‐APPELLEES:                  No appearance.

              Appeal from a judgment of the United States District Court for the District

of Connecticut (Underhill, J.).

              UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

              Plaintiff‐appellant John Kaminski, pro se, appeals the judgment of the

district court, entered April 15, 2019, dismissing his complaint sua sponte for failure to

state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). The complaint, filed

pursuant to 42 U.S.C. § 1983, alleged that Scott Semple, the former commissioner of the

Connecticut Department of Corrections (ʺDOCʺ), George Jepsen, the former Connecticut

Attorney General, and Walter Scott Bansley IV, a private attorney who was hired by the

DOC to provide legal services to inmates in a legal assistance program, violated his

rights by denying him access to the courts. Specifically, he alleges that after he elected

to proceed pro se in his habeas proceeding, DOC denied him legal assistance and access

to the law library. We assume the partiesʹ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

              We review the sua sponte dismissal of a complaint de novo. McEachin v.

McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004). Pro se submissions are reviewed with

                                              2
ʺspecial solicitude,ʺ and ʺmust be construed liberally and interpreted to raise the

strongest arguments that they suggest.ʺ Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,

474‐75 (2d Cir. 2006) (internal quotation marks and citations omitted).

              The district court properly dismissed Kaminskiʹs claims against Semple

and Jepsen to the extent he sought retrospective relief. If a complaint ʺalleges an

ongoing violation of federal law and seeks relief properly characterized as prospective,ʺ

the Eleventh Amendment cannot bar it. Verizon Md., Inc. v. Pub. Serv. Commʹn of Md.,

535 U.S. 635, 645 (2002) (internal quotation marks omitted); see also In re Deposit Ins.

Agency, 482 F.3d 612, 617 (2d Cir. 2007) (ʺ[A] plaintiff may sue a state official acting in

his official capacity ‐‐ notwithstanding the Eleventh Amendment ‐‐ for prospective

injunctive relief from violations of federal law.ʺ (internal quotation marks and citations

omitted)). But a declaration dealing only with past events would be retrospective and

barred. See Ward v. Thomas, 207 F.3d 114, 120 (2d Cir. 2000) (ʺAny declaration could say

no more than that Connecticut had violated federal law in the past . . . [and] would have

much the same effect as a full‐fledged award of damages or restitution by the federal

court, the latter kinds of relief being of course prohibited by the Eleventh Amendment.ʺ

(internal quotation marks omitted)). Here, Kaminski sought only a declaration that

Semple and Jepsen violated his right to access the courts. Both defendants are no longer

state officials; they are therefore no longer denying him a right to access the law library.




                                              3
The district court correctly held that claims against Semple and Jensen for retroactive

relief are barred by the Eleventh Amendment. See id.

               To the extent that Kaminskiʹs complaint may be construed as seeking

prospective relief, his claim for denial of access to the courts also fails.1 While the

Supreme Court has long recognized that prisoners have a right to meaningful access to

the courts and that prison officials are barred from ʺactively interfering with inmatesʹ

attempts to prepare legal documents,ʺ Lewis v. Casey, 518 U.S. 343, 350 (1996) (citing

Bounds v. Smith, 430 U.S. 817 (1977)), prisoners do not have an abstract right to a law

library or legal assistance. Id. To state a denial‐of‐access‐to‐the‐courts claim, a prisoner

must show that: (1) he suffered an ʺactual injury,ʺ id. at 349, (2) to a non‐frivolous legal

claim, (3) concerning his criminal conviction, habeas corpus petition, or conditions of

confinement. Id. at 352–54. Actual injuries include the dismissal of a complaint for a

technical deficiency that would have been cured with appropriate legal facilities, or that

a prisoner was ʺstymiedʺ from bringing an arguably actionable claim by the

ʺinadequacies of the law library.ʺ Id. at 351.

               Here, Kaminski has failed to allege that the denial of access to a law

library resulted in any actual injury relating to his habeas corpus petition. Kaminski

alleged that he discovered a dismissed criminal charge on his own, when none of his



1       Where a public officer sued in his official capacity ʺresigns, or otherwise ceases to hold
office while the action is pending,ʺ the action continues, and ʺ[t]he officerʹs successor is
automatically substituted as a party.ʺ Fed. R. Civ. P. 25 (d).
                                                 4
appointed attorneys caught the issue. Further, he was able to file and prosecute a

petition for a writ of mandamus without access to a law library. His complaint suggests

that his habeas proceeding was not hindered by his lack of access to a library. Indeed,

the state court forgave a technical error (mislabeling of a motion) that Kaminski

attributed to his lack of access to a law library or legal services.

              Although Kaminski acknowledges that his individual claims do not

establish a denial of access to the courts, he asserts that Connecticutʹs legal services for

prisoners are worse than the system addressed in Lewis. But Lewis makes clear that ʺan

inmate cannot establish relevant actual injury simply by establishing that his prisonʹs

law library or legal assistance program is subpar in some theoretical sense.ʺ 518 U.S. at

351. Kaminski therefore cannot show any actual injury and he does not state a plausible

claim for denial of access to the courts.

              The district court also properly dismissed the claims against Bansley. To

be liable under § 1983, a defendant must be a state actor. Am. Mfrs. Mut. Ins. Co. v.

Sullivan, 526 U.S. 40, 49–50 (1999). Generally, a court‐appointed attorney ʺperforming a

lawyerʹs traditional functions as counselʺ to a party is not a state actor under § 1983.

Rodriguez v. Weprin, 116 F.3d 62, 65–66 (2d Cir. 1997). We have also held that legal aid

agencies are not state actors, ʺnotwithstanding the receipt of substantial government

funds,ʺ as long as the State does not ʺexercise control or supervision over the internal

operationsʺ of the agency. See Graseck v. Mauceri, 582 F.2d 203, 208 (2d Cir. 1978); see also


                                               5
Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000) (reaffirming Graseckʹs holding that ʺa

legal aid society ordinarily is not a state actor amenable to suit under § 1983ʺ). Bansley,

as the Inmate Legal Assistance Program contractor, acted in the capacity of a legal aid

society by performing legal services on behalf of Connecticut state prisoners. Because

Kaminski offered no allegation that Bansley performed duties outside the traditional

counselʹs role, or that DOC controlled or supervised Bansley, he failed to sufficiently

allege that Bansley was a state actor. See Rodriguez, 116 F.3d 65–66; Graseck, 582 F.2d at

208.

              Finally, the district court also did not err in denying Kaminski leave to

amend his complaint. A pro se plaintiff should be afforded leave to amend following

dismissal ʺwhen a liberal reading of the complaint gives any indication that a valid

claim might be stated.ʺ Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (internal

quotation marks omitted). Here, however, amendment would have been futile because

Bansley is not a state actor and Kaminski cannot allege that his habeas proceeding was

harmed by any of the defendantsʹ actions. Accordingly, the district court properly

dismissed Kaminskiʹs complaint.

                                         *   *   *




                                             6
             We have considered Kaminskiʹs remaining arguments and conclude they

are without merit. For the foregoing reasons, we AFFIRM the judgment of the district

court.

                                       FOR THE COURT:
                                       Catherine OʹHagan Wolfe, Clerk




                                          7
