Circuit Judges. FREDERICK J. DAVIS, Plaintiff-Appellant, v. JOSEPH GUARINO, Defendant-Appellee. APPEARING FOR APPELLANT: Davis, et al v. Guarino, Plaintiff-appellant Frederick J. Davis, acting pro se, appeals (2nd Cir. 2002)

Federal Circuits, 2nd Cir. (December 16, 2002)

Docket number: 01-0226

Permanent Link: http://vlex.com/vid/judges-guarino-appearing-pro-18534689
Id. vLex: VLEX-18534689

Click here to download this article in graphic format (Acrobat Reader)

Document language

Request manual translation

Search in this document

Document options

Citations:

Loading article preview... cerrar

US Code - Title 42: The Public Health and Welfare - 42 USC 1983 - Sec. 1983. Civil action for deprivation of rights

U.S. Court of Appeals for the 2nd Cir. - Patrick Graham, Plaintiff-Appellant, v. R.J. Henderson, Former Superintendent, Auburn Correctional Facility; Hans Walker, Superintendent, Auburn Correctional Facility; Lieutenant v. Mahunik; Sergeant M. Vasquez; C. Ciaschi, Correction Officer; Gary Anthony, Industrial Superintendent, Auburn Correctional Facility; William A. Gabak, General Foreman; John Nelson Decker, I.T.S., Defendants-Appellees., 89 F.3d 75 (2nd Cir. 1996) Plaintiff-Appellant, v. R.J. Henderson, Former Superintendent, Auburn Correctional Facility; Hans Walker, Superintendent, Auburn Correctional Facility; Lieutenant v. Mahunik; Sergeant M. Vasquez; C. Ciaschi, Correction Officer; Gary Anthony, Industrial Superintendent, Auburn Correctional Facility; William A. Gabak, General Foreman; John Nelson Decker, I.T.S., Defendants-Appellees.

U.S. Court of Appeals for the 2nd Cir. - Hellenic American Neighborhood Action Committee, Plaintiff-Appellee, v. the City of New York, Mayor Rudolph Giuliani, City of New York Human Resources Administration, Marva Livingston Hammons, Deputy Commissioner Seth Diamond, Deputy Commissioner Violet Mitchell and City of New York Department of Youth Services, Defendants-Appellants., 101 F.3d 877 (2nd Cir. 1996)

U.S. Court of Appeals for the 2nd Cir. - James Mcdarby, Plaintiff-Appellant, v. David N. Dinkins, * Mayor of the City of New York; Elizabeth Holtzman,* Comptroller of the City of New York; Lee P. Brown,* Police Commissioner of the City of New York and Chairman, Police Pension Fund, Article Ii; Board of Trustees, Police Pension Fund, Article Ii; Medical Board, Police Pension Fund, Article Ii; and Director of Personnel, City of New York, Defendants-Appellees., 907 F.2d 1334 (2nd Cir. 1990)

U.S. Court of Appeals for the 2nd Cir. - Interboro Institute, Inc., Plaintiff-Appellee-Cross-Appellant, v. Cornelius J. Foley, Individually and as President of the New York State Higher Education Services Corporation, the Higher Education Services Corporation, Edward v. Regan, Individually and as Comptroller of the State of New York and the Office of the Comptroller of the State of New York, Department of Audit and Control, Defendants-Appellants-Cross-Appellees., 985 F.2d 90 (2nd Cir. 1993)

See other documents that cite the same legislation

Text:

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 16th day of December , Two Thousand and Two.

PRESENT: HONORABLE Fred I. Parker, HONORABLE Chester J. Straub, HONORABLE Reena Raggi, Circuit Judges.

FREDERICK J. DAVIS, Plaintiff-Appellant, v. No. 01-0226 (pro se)

JOSEPH GUARINO, Defendant-Appellee.

APPEARING FOR APPELLANT: Frederick J. Davis, pro se, Dannemora, NY APPEARING FOR APPELLEE: Julie Steiner, New York, NY Appeal from the United States District Court for the Eastern District of New York ( Raymond J. Dearie, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the decision of said district court be and it hereby is AFFIRMED.

Davis, et al v. Guarino, Docket No. 01-0226 (pro se)

Plaintiff-appellant Frederick J. Davis, acting pro se, appeals from the August 17, 2001 order of the United States District Court for the Eastern District of New York (Raymond J. Dearie, Judge), dismissing his complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted.

We review the district court's dismissal of a complaint pursuant to Rule 12(b)(6) de novo. See Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998). In addition, pro se submissions are construed liberally and are treated as raising the strongest arguments that they might suggest. Graham v. Henderson, 89 F.3d 75, (2d Cir. 1996).

Davis argues that Joseph Guarino, the Deputy General Counsel of the New York State Department of Corrections, improperly failed to respond to his request for information "pertinent to [Davis's]

preparation" of his criminal defense. Davis made his request pursuant to the New York Freedom of Information Law, N.Y. Pub. Off.

Law §§ 84-90, ("FOIL"), and Guarino's failure to respond operates as a denial of the request. Davis contends that this denial deprives him of due process of law under 42 U.S.C. § 1983.

Appellee Guarino moved to dismiss pursuant to Rule 12(b)(6), on the basis that Davis's claim raises no federal question and there is no diversity between the parties. Further, Guarino argues that the appropriate procedure for a FOIL challenge is a New York C.P.L.R.

Davis, et al v. Guarino, Docket No. 01-0226 (pro se)

Article 78 proceeding.

Construing the appellant's brief liberally, we consider the possibility of a claim under 42 U.S.C. § 1983. When an alleged denial of liberty or property without due process is the result of an unauthorized random act of a state employee, the Fourteenth Amendment is not implicated if there is an adequate post-deprivation remedy for such a denial. See Hellenic Am. Neighborhood Action Comm. v. City of N.Y., 101 F.3d 877, 880-81 (2d Cir. 1996).

We have held on numerous occasions that an Article 78

proceeding is a perfectly adequate post-deprivation remedy. See, e.g., Interboro Inst., Inc. v. Foley, 985 F.2d 90, 93 (2d Cir. 1993); McDarby v. Dinkins, 907 F.2d 1334, 1338 (2d Cir. 1990).

Because Guarino's denial of Davis's F.O.I.L. request amounts to a random unauthorized act of a state employee, and Davis has access to an adequate post-deprivation remedy, the district court dismissal was correct.

The judgment of the district court is AFFIRMED.

FOR THE COURT, Roseann B. MacKechnie, Clerk By:

Lucille Carr, Operations Manager