11-1488-pr
Whitfield v. Imperatrice

                                   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
Court’s 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 “summary order”).
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
Richard C. Lee United States Courthouse, 141 Church Street, in the City of New Haven,
Connecticut, on the 30th day of April, two thousand twelve.

PRESENT:

      GUIDO CALABRESI,
      JOSÉ A. CABRANES,
      DENNY CHIN,
                   Circuit Judges.
__________________________________________

John Whitfield,

                     Plaintiff-Appellant,

                              v.                                       No. 11-1488-pr

James F. Imperatrice, Chief Clerk, et al.,

            Defendants-Appellees.
__________________________________________

FOR PLAINTIFF-APPELLANT:                               John Whitfield, pro se, Woodbourne
                                                       Correctional Facility, Woodbourne, NY.

FOR DEFENDANT-APPELLEES:                               Barbara D. Underwood, Solicitor General,
                                                       Michael S. Belohlavek, Senior Counsel, and
                                                       Marion R. Buchbinder, Assistant Solicitor
                                                       General, for Eric T. Schneiderman, Attorney
                                                       General of the State of New York, New York,


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                                                               NY, counsel for the State Defendants; Larry
                                                               Sonnenshein and Julian L. Kalkstein, of counsel,
                                                               for Michael A. Cardozo, Corporation Counsel
                                                               of the City of New York, New York, NY,
                                                               counsel for the City Defendants.

       Appeal from a judgment of the United States District Court for the Eastern District of New
York (Carol Bagley Amon, Chief Judge).

     UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the March 9, 2011 judgment of the District Court is
AFFIRMED.

        Plaintiff-appellant John Whitfield (“Whitfield”), pro se, appeals from the March 9, 2011
judgment of the District Court dismissing his 42 U.S.C. § 1983 complaint. In a Memorandum and
Order dated March 9, 2011, the District Court granted the State Defendants’ motion for summary
judgment, granted the City Defendants’ motion to dismiss, and denied the plaintiff’s motions for
summary judgment, to amend his complaint for a second time, to reopen discovery, to hold the
Kings County District Attorney’s Office in contempt, and to compel the production of certain grand
jury minutes from the Kings County District Attorney’s Office.1

        We assume the parties’ familiarity with the underlying facts, the procedural history of the
case, and the issues on appeal. Briefly, Whitfield alleges that in April and May 2008, he filed records
requests with the Kings County Supreme Court to obtain (1) the 1982 criminal case file of Richard
Doyle, who had been convicted of assault and criminal use of a firearm, and (2) the certificate of
disposition and sentencing minutes filed in that case.2 Whitfield claims that by failing to comply
with his requests for records and transcripts, (1) the State and City Defendants denied him
meaningful access to the courts in violation of his rights under the First and Fourteenth
Amendments; (2) in response to his complaint filed with the Office of Court Administration, the
State Defendants retaliated against him by failing to process his Article 78 petition; (3) the State and


         1
           The State Defendants are James F. Imperatrice, Chief Clerk of the Kings County Supreme Court (“KCSC”),
Criminal Term; Edward J. Volpe, Chief Clerk of KCSC, Civil Term; Ellen Neri, Principal Court Reporter of KCSC;
Donna Johnson, Senior Court Clerk of KCSC, Criminal Term; Barbara Zahler-Gringer, Counsel of Administration and
Operations, New York Office of Court Administration (“OCA”); and Sherrill Spatz, Inspector General, OCA. The City
Defendants are James Russo, Record Access Officer, and Jonathan David, Record Access Appeals Officer, both of the
New York Police Department Freedom of Information Law Unit.
         2
           Whitfield sought these materials in connection with his N.Y. Criminal Procedure Law § 440.10 motion to
vacate his 1989 conviction, which he filed in June 2008. See Am. Compl. ¶ 24.



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City Defendants conspired with the Kings County District Attorney’s Office to deny him access to
the requested records; and (4) the State of New York, through the failure of the State and City
Defendants to process his requests, violated State Judiciary Law §§ 255 and 301.

        We review an order granting summary judgment de novo, drawing all factual inferences in
favor of the non-moving party. See, e.g., Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, 107
(2d Cir. 2008). “Summary judgment is proper only when, construing the evidence in the light
most favorable to the non-movant, ‘there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.’” Doninger v. Niehoff, 642 F.3d 334, 344 (2d
Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). We also review de novo a district court’s grant of a
motion to dismiss, “accepting all factual claims in the complaint as true, and drawing all
reasonable inferences in the plaintiff’s favor.” Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d
106, 108 (2d Cir. 2010).

        Our review of the record confirms that Whitfield failed to state a cognizable claim
against either the State or City Defendants for the denial of his right to access the courts. “The
constitutional right of access to the courts is violated where government officials obstruct
legitimate efforts to seek judicial redress.” City of New York v. Beretta U.S.A. Corp., 524 F.3d 384,
397 (2d Cir. 2008) (internal quotation marks and alteration omitted). To succeed on an
access-to-court claim, a plaintiff must demonstrate “actual injury” by proving that the denial of
access “hindered his efforts” to pursue a non-frivolous legal claim. See Lewis v. Casey, 518 U.S.
343, 349, 351–53 (1996); see also Christopher v. Harbury, 536 U.S. 413, 415 (2002) (“[O]ur cases rest
on the recognition that the right [of access to the courts] is ancillary to the underlying claim,
without which a plaintiff cannot have suffered injury by being shut out of court.”).

         In this case, Whitfield’s access claim is based on his allegation that the State and City
Defendants refused to provide or delayed in providing him copies of another individual’s 25-
year-old criminal record, which he sought to use in connection with a § 440.10 motion to vacate
his 1989 conviction. But on this record, no reasonable jury could find that any delay by the
Defendants in producing these materials hindered Whitfield’s ability to pursue post-conviction
relief. Indeed, the state court ultimately denied Whitfield’s § 440.10 motion based on a finding
that his claims were procedurally barred—not because he failed to produce the evidence he
sought from the Defendants. Whitfield’s argument on appeal that the District Court should
have conducted a de novo review of the state court decision is without merit, since that decision is
entitled to full faith and credit pursuant to 28 U.S.C. § 1738. See Univ. of Tennessee v. Elliott, 478
U.S. 788, 796 (1986) (holding that § 1738 “requires that state-court judgments be given both
issue and claim preclusive effect in subsequent actions under 42 U.S.C. § 1983”).



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         Whitfield similarly failed to state a cognizable claim for retaliation against the State
Defendants. To state a First Amendment retaliation claim under § 1983, a plaintiff must allege
that: (1) he has a right protected by the First Amendment; (2) the defendant’s actions were
motivated by or substantially caused by plaintiff’s exercise of that right; and (3) the defendant’s
actions effectively chilled the plaintiff’s exercise of his rights. See Connell v. Signoracci, 153 F.3d
74, 79 (2d Cir. 1998). Whitfield argues on appeal that there is an “obvious[ ]” causal connection
between the complaints he filed with court personnel and the State Defendants’ alleged refusal
to respond to his requests. He also asserts that the State Defendants’ actions were “intentional,
malicious and prompted” by his complaints. An independent review of the record, however,
does not reveal any such causal connection. Rather, Whitfield’s arguments appear to be based
solely on his own speculation, which is insufficient to defeat a summary judgment motion. See
Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002) (“conclusory statements or mere allegations
[are] not sufficient to defeat a summary judgment motion”).

       Because Whitfield failed to state an access-to-court or a retaliation claim, his conspiracy
claim was also properly dismissed as a matter of law. See Young v. County of Fulton, 160 F.3d 899,
904 (2d Cir. 1998) (“[Where t]here was no deprivation of a federal constitutional right, . . . there
can be no civil rights conspiracy to deprive that right.”).

         Finally, we review the District Court’s denial of Whitfield’s motion for leave to amend
for abuse of discretion, “keeping in mind that leave to amend should be freely granted when
‘justice so requires.’” Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 177 (2d Cir. 2006) (internal
quotations marks omitted); see Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008) (explaining that the
term of art “abuse of discretion” includes errors of law). After having reviewed Whitfield’s
arguments on appeal, we find no such abuse of discretion in the District Court’s decision to
deny his motion to amend on the basis of futility.

                                          CONCLUSION

       We have considered all of Whitfield’s remaining arguments on appeal and found each of
them to be without merit. Accordingly, the March 9, 2011 judgment of the District Court is
AFFIRMED.




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         Whitfield has also filed a motion to strike and for the imposition of sanctions due to the
failure of counsel for the City Defendants to timely serve him with a copy of their brief. That
motion is DENIED.


                                                FOR THE COURT,
                                                Catherine O’Hagan Wolfe, Clerk of Court




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