12-403-cv
Sousa v. Marquez



                            UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                           August Term, 2012

(Argued: December 6, 2012                                                 Decided: December 13, 2012)

                                         Docket No. 12-403-cv
                   _______________________________________________________________

                                             BRYAN J. SOUSA,

                                            Plaintiff-Appellant,


                                                     v.


                                           DEVIN J. MARQUEZ,

                                            Defendant-Appellee.
                   _______________________________________________________________

Before: CABRANES, RAGGI, and CARNEY, Circuit Judges.

         Plaintiff-appellant Bryan Sousa, a former employee at the Connecticut Department of

Environmental Protection, claims that he failed to prevail in a prior employment-related suit because

of false statements and deliberate omissions in an investigative report issued by defendant-appellee

Devin J. Marquez, a staff attorney at the Connecticut Department of Administrative Services. Sousa

brings this “right of access” suit against Marquez on the theory that Marquez’s actions “caused the

loss . . . of [his] meritorious case.” Christopher v. Harbury, 536 U.S. 403, 414 (2002).

         We reject Sousa’s argument on two grounds. First, even assuming that so-called “backward

looking” right-of-access claims are viable in this Circuit, such claims cannot proceed if the plaintiff,

asserting that the government concealed or manipulated relevant facts, was aware of the key facts at

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issue at the time of the earlier lawsuit. A plaintiff with knowledge of the crucial facts and an

opportunity to rebut opposing evidence does have adequate access to a judicial remedy. Second, the

District Court’s opinion in the prior suit demonstrates that the Court did not rely on statements or

omissions in Marquez’s report, and therefore Sousa has not shown that Marquez’s purported actions

caused a violation of his rights.

        Affirmed.

                                        JOHN R. WILLIAMS, New Haven, CT, for Plaintiff-Appellant
                                              Bryan J. Sousa.

                                        PETER M. HABERLANDT, Assistant Attorney General (Antoria
                                              D. Howard, Assistant Attorney General, on the brief),
                                              for George Jepsen, Attorney General of the State of
                                              Connecticut, Hartford, CT, for Defendant-Appellee Devin
                                              J. Marquez.

JOSÉ A. CABRANES, Circuit Judge:

        The question presented is whether a suit based on a state governmental official’s purported

concealment or “manipulation” of relevant facts in the course of a prior civil suit can form the basis

of a subsequent federal suit under 42 U.S.C. § 1983 alleging a denial of access to court where the

plaintiff was aware at the time of the earlier lawsuit of the facts giving rise to his claim. We hold that

“backward-looking” access-to-court claims are not cognizable when the plaintiff had knowledge of

the crucial facts and an opportunity to rebut opposing evidence, because such a plaintiff necessarily

had adequate access to a judicial remedy.

        Plaintiff-appellant Bryan Sousa worked at the Connecticut Department of Environmental

Protection (“DEP”) from 1987 to 2005. During that time, Sousa alleged that he experienced threats

of violence at work. His complaints led to four investigations. In August 2004, the Connecticut

Department of Administrative Services (“DAS”) assigned defendant-appellee Devin Marquez—a

DAS staff attorney—to conduct one of these investigations. Marquez interviewed Sousa and other



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DEP employees and then issued reports concluding that workplace violence had not occurred at

DEP.

         Sousa then sued various DEP employees alleging retaliation under the First Amendment,

violation of the Equal Protection Clause, and various state-law tort claims. The District Court

granted summary judgment in favor of the defendants in 2007, Sousa v. Roque, No. 3:05-cv-00822

(JCH), 2007 WL 1100318 (D. Conn. April 10, 2007), but we reversed with respect to Sousa’s

retaliation claim, explaining that our precedent was “at odds with the District Court’s conclusion

that Sousa’s speech did not address a matter of public concern solely because he was motivated by

employment grievances,” Sousa v. Roque, 578 F.3d 164, 166 (2d Cir. 2009). On remand, the District

Court adopted our suggestion that it “may wish to assume arguendo that Sousa’s statements did touch

on a matter of public concern, and proceed straight to Pickering balancing.” Id. at 175 n.8 (internal

quotation marks omitted). Applying the balancing test under Pickering v. Board of Education of Township

High School District 205, Will County, Illinois, 391 U.S. 563 (1968), the District Court held that “there is

no issue of material fact as to whether Sousa’s ‘interest in free comment is outweighed by the State’s

interest in the efficiency of its public services.’” Sousa v. Roque, 712 F. Supp. 2d 34, 46 (D. Conn.

2010) (quoting Sousa v. Roque, 578 F.3d at 175 n.8 (internal quotation marks omitted)). On appeal,

we affirmed.1 See Sousa v. Roque, 410 F. App’x 411 (2d Cir.), cert. denied, 132 S. Ct. 104 (2011).

         In the present case—which is distinct from the previously mentioned suits—Sousa alleges

that Marquez “discovered and concealed strong evidence in favor of [Sousa’s] contention that

workplace violence was a serious and ongoing problem at the DEP and had chosen not to interview

other witnesses who would have testified to the same effect.” Appellant’s Br. 12. Sousa’s claim

relies in large part on information gleaned from Marquez’s investigation notes, which Sousa


1 As the District Court summarized, Sousa has filed many other claims relating to the alleged conditions at DEP. See

Sousa v. Marquez, No. 3:07-cv-01787 (JCH), 2012 WL 3727618, at *2 (D. Conn. Jan. 4, 2012).


                                                           3
obtained pursuant to the Freedom of Information Act. Based on the alleged intentional omissions

in Marquez’s reports, Sousa claims that Marquez violated his constitutional right of access to courts.

In short, he argues that Marquez’s skewed findings undercut his otherwise meritorious claims.

        On January 4, 2012, the District Court granted Marquez’s motion for summary judgment.

The Court explained that Sousa could not demonstrate a violation of his right of access because its

prior decisions had relied on “Sousa’s deposition and affidavit” and “Roque’s Rule 56 Statement of

Facts”—not on Marquez’s reports. Sousa v. Marquez, No. 3:07-cv-01787 (JCH), 2012 WL 3727618,

at *3 (D. Conn. Jan. 4, 2012). The Court stated that it was “puzzled” by Sousa’s allegation because

“the court’s Ruling does not reference either of Marquez’s reports at all.” 2 Id.

        On appeal, Sousa argues that the District Court erred by considering only its 2010 decision

without also considering its 2007 decision. In particular, Sousa asserts that “the second ruling [in

2010] quoted from and relied upon the parts of the first ruling [in 2007] which had been based on

the defendant’s fraudulent report.” Appellant’s Br. 18. Sousa further argues that the District Court

should not have adjudicated the present dispute at all because the judge “inevitably was in the

position of deciding upon her own state of mind in deciding Sousa v. Roque.” Id. at 19.

                                                 DISCUSSION

        Summary judgment is appropriate “if 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).

“We review de novo the district court’s grant of summary judgment, drawing all factual inferences in

favor of the non-moving party.” Sousa v. Roque, 578 F.3d at 169 (internal quotation marks omitted;

italics supplied).




2Sousa also brought a common-law claim for spoliation of evidence. The District Court dismissed that claim without
prejudice after declining to exercise supplemental jurisdiction. See Sousa v. Marquez, 2012 WL 3727618, at *3.

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                                                      A.

        Courts of Appeals have recognized two variants of right-of-access claims. See Christopher v.

Harbury, 536 U.S. 403, 413–14 (2002). First, plaintiffs may allege that “systemic official action”

frustrated their ability to file a suit. Id. at 413. The object of this type of suit “is to place the plaintiff

in a position to pursue a separate claim for relief once the frustrating condition has been removed.”

Id. Such suits are therefore labeled “forward-looking.” Id. at 414 n.11. The second variant of right-

of-access claims is “backward-looking access claims,” id., covering suits that “cannot now be tried

(or tried with all material evidence), no matter what official action may be in the future,” id. at 413–

14. This may occur, for instance, if the official action “caused the loss or inadequate settlement of a

meritorious case.” Id. at 414. In either circumstance, however, “the right is ancillary to the

underlying claim, without which a plaintiff cannot have suffered injury by being shut out of court.”

Id. at 415.

        Sousa argues that “the law is clear that a denial of access to courts claim under the First

Amendment is viable if the official action in question ‘may allegedly have caused the loss or

inadequate settlement of a meritorious case.’” Appellant’s Br. 17 (quoting Harbury, 536 U.S. at 414).

Not so. The viability of backward-looking right-of-access claims is far from clear in this Circuit, and

Sousa has not pointed to any decision of this Circuit recognizing such a claim. As Judge Michael W.

McConnell stated shortly after the Harbury decision, “[t]he Supreme Court was careful not to endorse

the validity of these backwards looking claims.” Jennings v. City of Stillwater, 383 F.3d 1199, 1209

(10th Cir. 2004) (emphasis supplied). Instead, the Court explicitly stated that it “assume[d], without

deciding, the correctness of the [courts of appeals] decisions” recognizing a backward-looking right

of access. Harbury, 536 U.S. at 414 n.9.




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                                                             B.

         We need not decide that issue here, however, because even if we followed other circuits in

recognizing a backward-looking right of access, Sousa’s claim falls well outside the scope of that

purported right. Such claims, if recognized, would be available only if the governmental action

caused the plaintiff’s suit to be dismissed as untimely, see, e.g., Swekel v. City of River Rouge, 119 F.3d

1259, 1264 (6th Cir. 1997),3 or if official misconduct was so severe as to “render[ ] hollow his right

to seek redress,” Bell v. City of Milwaukee, 746 F.2d 1205, 1261 (7th Cir. 1984), overruled on other grounds

by Russ v. Watts, 414 F.3d 783 (7th Cir. 2005). This circumstance may arise, for example, if public

officials withheld from the plaintiff “key facts which would form the basis of the . . . claims for

redress.” Id. But such claims are available only if a judicial remedy was “completely foreclosed” by

the false statement or nondisclosure. Broudy v. Mather, 460 F.3d 106, 120 (D.C. Cir. 2006).

         Common to these decisions is the sensible recognition that when a plaintiff in a backward-

looking access suit alleges that the government concealed or manipulated relevant facts, the claim

may not proceed if the plaintiff was, at the time of the earlier lawsuit, aware of the facts giving rise to

his claim. See, e.g., Chappell v. Rich, 340 F.3d 1279, 1284 (11th Cir. 2003) (citing Ryland v. Shapiro, 708

F.2d 967 (5th Cir. 1983), and Bell, 746 F.2d 1205); Swekel, 119 F.3d at 1263 (“[T]he defendants did

not deny [the plaintiff’s] access to the courts, because [the plaintiff] had all of the relevant facts at

her disposal.”). That is because a plaintiff who has knowledge of the facts giving rise to his claim

and an opportunity to rebut opposing evidence does have adequate access to a judicial remedy. If a

governmental official is lying, for instance, the plaintiff can attempt to demonstrate the falsity of the

official’s statements through discovery and argument before the court. The point of the backward-

looking right of access recognized by other circuits is to ensure that plaintiffs have that



3Cf. Pearl v. City of Long Beach, 296 F.3d 76, 80 n.3 (2d Cir. 2002) (pointing out that a party’s fraudulent conduct can also
sometimes give rise to equitable tolling of statutes of limitations).

                                                              6
opportunity—not to convert every instance of deception by a governmental witness into a separate

federal lawsuit.

        In this case, Sousa claims to have been aware of the purportedly violent conditions at DEP,

and therefore he was necessarily aware of the alleged inaccuracies in Marquez’s reports at the time

he litigated his prior suit, even if he did not then appreciate that Marquez’s distortions were (as he

now claims) intentionally false or misleading. Moreover, Sousa had an opportunity to expose those

inaccuracies through discovery and argument before the District Court, which of course was not

bound by evidence presented or conclusions reached in Marquez’s reports.

        In other words, any intentionally misleading statements or omissions in Marquez’s report did

not foreclose Sousa’s ability to present his prior case in court. Quite to the contrary. Sousa could

have requested discovery with respect to the facts presented (or purportedly omitted) in Marquez’s

reports. See Fed. R. Civ. P. 56(d) (providing avenues for a nonmoving party to oppose summary

judgment if “it cannot present facts essential to justify its opposition”). “The premise of our

adversarial system,” after all, is that “courts do not sit as self-directed boards of legal inquiry and

research,” but rather adjudicate legal questions based on the facts and legal arguments “presented

and argued by the parties before them.” Coalition on W. Valley Nuclear Wastes v. Chu, 592 F.3d 306,

314 (2d Cir. 2009) (internal quotation marks omitted). It is a plaintiff’s ultimate responsibility to

allege and then prove the factual and legal basis for his claim. If a party is aware of the basic facts

undergirding his claim but fails to make his case, whether through inadequate discovery or

otherwise, he may not relitigate that dispute through a denial-of-access claim.

        In sum, Sousa has not shown a genuine dispute of material fact with respect to his access-to-

courts claim because he has not even stated a claim upon which relief could be granted. As other

courts of appeals have recognized, and as we now hold, backward-looking access claims are not




                                                     7
cognizable if the plaintiff, claiming that the government concealed or manipulated relevant facts, was

aware at the time of the earlier lawsuit of the facts giving rise to his claim.

                                                    C.

        Sousa’s claim also fails because he has not shown a genuine dispute of material fact with

respect to an alleged injury resulting from Marquez’s reports. See Harbury, 536 U.S. at 415 (“[T]he

[access] right is ancillary to the underlying claim, without which a plaintiff cannot have suffered

injury by being shut out of court.”). Sousa states in a conclusory fashion that the District Court’s

2010 decision was “based on the defendant’s fraudulent report,” Appellant’s Br. 18, and was

“permeated by the view” taken in that report because of the District Court’s prior decision in 2007,

id. But at no point in his brief does Sousa demonstrate that the Court’s 2010 decision relied in any

way on Marquez’s alleged omissions and misstatements. These sorts of conclusory allegations

cannot create a material dispute of fact, see Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir.

2010), and the District Court’s 2010 opinion demonstrates that the Court did not, in fact, rely on

Marquez’s reports when it granted summary judgment in favor of the defendants.

        Sousa further alleges that Judge Hall “inevitably was in the position of deciding upon her

own state of mind in deciding Sousa v. Roque.” Appellant’s Br. 19. But there is no reason to plumb

the depths of the District Court’s state of mind. Looking simply to the District Court’s written

explanation, see Sousa v. Roque, 712 F. Supp. 2d at 36–46, we conclude that the District Court’s 2010

decision did not rely at all on Marquez’s reports, and therefore Sousa has failed to show the requisite

injury resulting from the reports to state a right-of-access claim.

                                            CONCLUSION

        To summarize, we reject Sousa’s argument on two grounds. First, even assuming that so-

called “backward looking” right-of-access claims are viable in this Circuit, such claims are not

cognizable if the plaintiff, claiming that the government concealed or manipulated relevant facts, was


                                                     8
aware at the time of the earlier lawsuit of the facts giving rise to his claim. A plaintiff with

knowledge of the crucial facts and an opportunity to rebut opposing evidence does have adequate

access to a judicial remedy. Second, the District Court’s opinion in the prior suit demonstrates that

the District Court did not rely on statements or omissions in Marquez’s report, and therefore no

reasonable factfinder could find that Marquez’s purported actions denied him a right of access to the

courts in violation of his federal constitutional rights.

        Accordingly, the judgment of the District Court is AFFIRMED.




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