Braithwaite v. Tropea

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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KESTON BRAITHWAITE,

Plaintiff,

-against- ORDER

23-CV-1431(JS)(AYS)

FRANK TROPEA, Clerk of Court,

County Court, Suffolk County;

HONORABLE JOHN B. COLLINS,

Justice Supreme Court; and

SUSAN CONNER,

Senior Court Reporter;

Defendants.

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APPEARANCES

For Plaintiff: Keston Braithwaite, pro se

22B4593

Clinton Correctional Facility

P.O. Box 2000

Dannemora, New York 12929

For Defendants: No appearance.

SEYBERT, District Judge:

Presently before the Court are two pro se filings by

incarcerated Plaintiff Keston Braithwaite (“Plaintiff”): (1) an

Application to Proceed in District Court Without Paying Fees or

Costs (Application, ECF No. 2); and (2) a Motion for an Order to

Show Cause (a) seeking an order directing Defendants Frank Tropea

(“Tropea”), Honorable John B. Collins (“Judge Collins”), and Susan

Conner (“Conner”; collectively, the “Defendants”) to show cause

“why a preliminary injunction should not issue” enjoining “them

from denying the Plaintiff access to the Records in his Case,

County Court Ind. No. 308C-2020 and falsifying documents in the

past and in the future,” and (b) requesting Defendants temporarily

be ordered to “restrain[] from commiting [sic] crimes including

concealment of Records and falsifying documents.” (OSC Motion,

ECF. No. 4; see also Pl.’s Support Aff., ECF No. 4-1.) This Order

rules on the Application and addresses only that portion of the

OSC Motion seeking a temporary restraining order (“TRO”). 1

Hereafter, the OSC Motion is referred to as the TRO Motion.

1 The Court holds in abeyance any determination regarding

Plaintiff’s request for a preliminary injunction pending its

initial screening of Plaintiff’s Complaint pursuant to 28 U.S.C.

§ 1915A. See Braithwaite v. Collins, No. 22-CV-0161, 2022 WL

1624122, at *2 (E.D.N.Y. May 23, 2023) (“Section 1915A of Title 28

requires federal district courts to screen complaints brought by

prisoners who seek relief against a governmental entity or an

officer or employee of a governmental entity. See Prison

Litigation Reform Act, 28 U.S.C. § 1915A(a). The Court must dismiss

a prisoner’s civil rights complaint, or any portion of that

complaint, that is frivolous or malicious, fails to state a claim

upon which relief may be granted, or seeks monetary relief from a

defendant who is immune from such relief. 28 U.S.C. § 1915A(b);

see also Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). The

Court must also dismiss a complaint without prejudice if the Court

lacks subject matter jurisdiction. See FED. R. CIV. P. 12(h)(3).

The Court is required to dismiss the action as soon as it makes

such a determination. See 28 U.S.C. § 1915A; Avant v. Miranda,

No. 21-CV-0974, 2021 WL 1979077, at *2 (E.D.N.Y. May 18, 2021).”).

If Plaintiff’s Complaint survives Section 1915A screening,

Defendants will be served with summonses and the Complaint.

The Court further notes that there is no indication upon the

present record that Plaintiff has given Defendants notice of his

OSC Motion. Accordingly, at this juncture, Plaintiff’s

preliminary injunction request is procedurally premature. See

Rule 65(a)(1) (“Notice. The court may issue a preliminary

injunction only on notice to the adverse party.” (emphasis added)).

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I. Plaintiff’s Application

Having reviewed his financial status, the Court finds

that Plaintiff is qualified to commence this action without

prepayment of the filing fee. See 28 U.S.C. § 1915(a)(1).

Therefore, Plaintiff’s Application (ECF No. 2) is GRANTED.

II. Plaintiff’s TRO Motion

Based on Plaintiff’s Complaint (ECF No. 1), the TRO

Motion, Plaintiff’s Support Affidavit, and his accompanying 20

exhibits (ECF Nos. 7-1 through 7-4), the Court finds that Plaintiff

has not met his burden of establishing an entitlement to a TRO.

Accordingly, the TRO Motion (ECF No. 4) is DENIED.

[Remainder of page intentionally left blank.]

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A. Relevant Background

In his present Section 1983 Complaint, which relates to

his arrest and state court criminal prosecution,2, 3 Plaintiff

asserts that: (1) (a) even though Plaintiff requested specific

documents and his entire state-court file from May 5, 2022 from

the County Court, (b) the County Court responded to Plaintiff’s

request indicating those documents were available, consisted of

220 pages, and would cost $143 to copy, and (c) Plaintiff

submitting the $143 copying fee (as a money order), Tropea failed

to turn over the requested copies of Plaintiff’s state-court file

2 The Court presumes the parties’ familiarity with Plaintiff’s

underlying state court criminal action, but notes that according

to the information maintained by the New York State Office of Court

Administration on its public website, in Suffolk County Court,

Criminal Term, Case No. 00308C-2020, on July 18, 2022, Plaintiff

was convicted by a jury on a multi-count indictment including

Operating as a Major Trafficker, a class A-1 felony, and Conspiracy

in the Second Degree, a class B felony. See

https://iapps.courts.state.ny.us/webcrim (last visited on Sept.

16, 2022). In sum, Plaintiff challenges his arrest and

conviction, asserting that he was illegally apprehended, and then

convicted, based upon cellphone “ping data” collected without a

warrant; he also maintains that evidence used against him at trial

was illegally obtained via a warrantless search of his apartment.

(See Sept. 23, 2022 Sent’g Hr’g Tr., ECF No. 7-4, at ECF pp.81-

87; see also Compl. at ECF pp.16-17, 19.)

3 Plaintiff is a prolific filer in this Court; excluding the

instant action, since January 2022, he has filed eight pro se in

forma pauperis complaints relating to his arrest and state court

criminal prosecution. See Braithwaite v. Gaitman, No. 22-CV-0974,

2022 WL 14059127, at *1 n.2 (E.D.N.Y. Oct. 24, 2022) (identifying

those eight other actions).

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(see Compl. at ECF pp.11-12); (2) thereafter, “Tropea chose to

forward Plaintiff’s $143 money order to Judge John B. Collins”

(id. at ECF p.16); (3) in turn, Judge Collins returned Plaintiff’s

$143 money order to Plaintiff’s defense attorney “to block

Plaintiff from inspecting his Court file” (id. at ECF p. 12); and

(4) on July 5, 2022, Plaintiff’s defense attorney handed Plaintiff

a partial copy of his state-court file, which did not include

filings made prior to June 2022 (see id.; see also id. at ECF

p.16), and which Plaintiff believes was done under Tropea’s and

Judge Collin’s directives (see id. at ECF p.15). As to Conner,

Plaintiff further alleges: “Conner[] deliberatly [sic] falsified

documents for the District Attorney of Suffolk County and Judge

Collins to hinder Plaintiff’s appeal,” (id. at ECF p.16), to wit,

“Conner[]chose not to record Plaintiff’s Statement “Ping Data” in

favor for her colleages [sic] Jacob Kubetz [the Assistant District

Attorney] and Judge Collins.” (Id. at ECF p.18.) Moreover,

despite Plaintiff’s requests that Conner correct the sentencing

transcript during which Plaintiff referred to “Ping Data”, she has

not done so. (See id.)

Based upon these allegations, Plaintiff claims his

First, Fifth, Sixth, and Fourteenth Amendment constitutional

rights have been violated. (See Compl. at ECF p.4.) He further

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asserts the following ten purported causes of action:

1. denial of judicial records;

2. fraud on the court;

3. concealment of records;

4. falsify evidence/documents;

5. altered transcripts;

6. procedural due process;

7. substantive due process;

8. Fourteenth Amendment violation;

9. Conspiracy to interfere with civil rights; and

10. Deprivation of civil rights.

(Compl. at ECF p.19.) By way of relief, Plaintiff requests:

[d]eclaratory relief, injunctive relief in

that my court file that consist of 220 pages

that was filed before May 5th, 2022, that the

Clerk of the Court including Frank Tropea

refrain from falsifying documents for the

District Attorney Suffolk County, and Judge

Collins such as back dating and filing Search

and Arrest warrants after they admitted that

there was no Search and Arrest warrants filed

in their office, and Susan O’Conner [sic] fix

errors in my sentencing transcripts so I can

bring up those issues in my appeal. I am seek

compensatory damages in that I would like my

entire Court file with no pages missing

(Certified, true and accurate filing dates),

a True and accurate copy of my sentencing

transcript, and the costs and fees I spent to

prosecute this action, Past and future

damages, Punitive damages. I would like all

money damages in the sum of $30,000,000.00.

(Id. at ECF pp.20-21.)

B. The Present TRO Motion

In his Support Affidavit, Braithwaite avers this action

was commenced “to recover documents and restrain Defendants from

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any wrongdoing.” (Support Aff. ¶ 2.) He further contends that

the Defendants have “been adamant in their refusal to provide

Plaintiff with Certified copy of his Court file . . . and to

correct errors in his Court minutes,” which “may hinder [his]

appeal.” (Id. at ¶ 12 (emphasis added).)

Pursuant to Rule 65(b) of the Federal Rules of Civil

Procedure:

The court may issue a temporary restraining

order without written or oral notice to the

adverse party or its attorney only if:

(A) specific facts in an affidavit or a

verified complaint clearly show that

immediate and irreparable injury, loss,

or damage will result to the movant

before the adverse party can be heard in

opposition; and

(B) the movant’s attorney certifies in

writing any efforts made to give notice

and the reasons why it should not be

required.

FED. R. CIV. P. 65(b)(1) (emphasis added). In this Circuit, courts

employ the same standard when deciding whether to issue a TRO or

a preliminary injunction, although a TRO is often granted ex parte

and has, at most, a limited 14-day lifespan. See Omnistone Corp.

v. Cuomo, 485 F. Supp. 3d 365, 367 (E.D.N.Y. 2020); see also Pan

Am. World Airways, Inc. v. Flight Engineers’ Int’l Ass’n, PAA

Chapter, AFL-CIO, 306 F.2d 840, 842 (2d Cir. 1962) (“The purpose

of a temporary restraining order is to preserve an existing

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situation in status quo until the court has an opportunity to pass

upon the merits of the demand for a preliminary injunction.”). “A

plaintiff seeking a preliminary injunction must establish [1] that

he is likely to succeed on the merits, [2] that he is likely to

suffer irreparable harm in the absence of preliminary relief, [3]

that the balance of equities tips in his favor, and [4] that an

injunction is in the public interest.” Winter v. Nat’l Res. Def.

Council, Inc., 555 U.S. 7, 20 (2008); Louis Vuitton Malletier v.

Dooney & Bourke, Inc., 454 F.3d 108, 114 (2d Cir. 2006). Plaintiff

has failed to make the requisite showing.

1. Likelihood of Success on the Merits

Plaintiff is unable to demonstrate that he is likely to

succeed on the merits of his claims. First, Judge Collins is

“absolutely immune from suit for damages for any actions taken

within the scope of [his] judicial responsibilities.” Griggs v.

Criminal Court of the City of N.Y., No. 21-CV-1899, 2021 WL

1535056, at *2 (S.D.N.Y. Apr. 19, 2021) (citing Mireles v. Waco,

502 U.S. 9, 11 (1991)). Plaintiff does not allege that Judge

Collins acted outside his judicial capacity in the underlying state

court action; hence, the Judge’s actions – or inactions – in this

instance are “considered judicial in nature.” Id. (quoting Sliven

v. Hunt, 579 F.3d 204, 210 (2d Cir. 2009)). Therefore, Plaintiff’s

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claims against Judge Collins are likely to be dismissed on the

ground of absolute judicial immunity.

Second, Tropea is similarly immune. In essence,

Plaintiff’s claims against Tropea are that Tropea failed to perform

his duties; there are no allegations that Tropea acted outside of

his official capacity. See Manko v. Steinhardt, No. 11-CV-5430,

2012 WL 213715, at *3 (E.D.N.Y. Jan. 24, 2012) (finding clerk of

court immune from claims arising from alleged failure to perform

duties where there were no allegations that clerk of court acted

in individual capacity); see also Peterkin v. Carr, No.20-CV-0524,

2020 WL 7186796, *3 (E.D.N.Y. Dec. 7, 2020) (finding court staff

member named in his official capacity entitled to judicial

immunity) (citing Treistman v. McGinty, 804 F. App’x 98 (2d Cir.

2020) (affirming district court’s determination that family court

employees were immune from suit)).

Third, Conner, as a court-reporter, is likely entitled

to qualified immunity. “Under the doctrine of qualified immunity,

court reporters are shielded from suit for civil damages as long

as their conduct does not violate clearly established statutory or

constitutional rights.” Griggs, 2021 WL 1535056, at *3 (citing

Antoine v. Byers & Anderson Inc., 508 U.S. 429 (1993)). As this

Court has previously ruled, the right to an absolutely accurate

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trial transcript is not clearly established for purposes of

determining the viability of a qualified immunity defense in a

Section 1983 Action. See Curro v. Watson, 884 F. Supp. 708, 721-

24 (E.D.N.Y. 1995), aff’d 100 F.3d 942 (2d Cir. 1996); see also

Burrell v. Swartz, 558 F. Supp. 91, 92 (S.D.N.Y. 1983) (“No

constitutional or federal statutory right exists to an absolutely

accurate trial transcript.”). Moreover, “[t]o the extent

Plaintiff attempts to assert that inaccurate transcriptions

deprived him of due process, such a claim would fail, because New

York has adequate procedures for correcting alleged inaccuracies

in transcripts.” Collins v. New York City, No. 2019 WL 4805692,

at *3 (S.D.N.Y., 2019) (citing Curro, 884 F. Supp. at 720-23); see

also Curro, 884 F. Supp. at 718 (discussing New York’s transcript

settlement procedures and finding they provide all the process due

plaintiff). Notwithstanding having filed a complaint with the

Tenth District Administrative Office, Suffolk County (“Tenth

District AO”) (see Compl. at ECF p.18.), Plaintiff has not alleged

to have availed himself of other available transcript settlement

procedures.

2. Likelihood of Suffering Irreparable Harm

The Court understands that Plaintiff has timely filed an

appeal of his conviction. See People v. Braithwaite, No. 2022-

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09001 (N.Y. App. Div., 2d Dep’t Sept. 27, 2022). However,

Plaintiff has not clearly demonstrated immediate and irreparable

injury, loss, or damage to his appellate rights if the requested

TRO does not issue. Indeed, by his own admission, Plaintiff

asserts that not receiving the requested documents and corrected

transcript “may hinder” his appeal. “[S]peculative, remote or

future injury is not the province of injunctive relief.” Abreu

v. Thomas, No. 9:17-CV-1312, 2019 WL 11153865, at *3 (N.D.N.Y. May

22, 2019) (citing Los Angeles v. Lyons, 461 U.S. 95, 111-12

(1983)). Moreover, as to his request for a corrected sentencing

transcript, while Plaintiff alleges to have filed a grievance with

the Tenth District AO, he further states he “did not receive a

confirmation nor a decision.” (Compl. at ECF p.18.) Thus, it is

unclear whether that avenue for correction remains open. Further,

as noted above, Plaintiff has not indicated whether he has pursued

any other available transcript settlement procedures. See Curro,

884 F. Supp. at 718 (discussing New York’s transcript settlement

procedures).

3. Balancing of Equities and the Public Interest

Plaintiff does not address these prongs of the TRO

analysis. In any event, upon the present record, the Court finds

the equities do not tip in Plaintiff’s favor or that it is in the

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public interest to issue the requested TRO especially since,

pursuant to Section 1983, “in any action brought against a judicial

officer for an act or omission taken in such officer’s judicial

capacity, injunctive relief shall not be granted unless a

declaratory decree was violated, or declaratory relief was

unavailable.” 42 U.S.C. § 1983. Further, as already addressed

regarding his claims against Conner, Plaintiff has other means to

seek the correction of his sentencing transcript. See Curro, 884

F. Supp. at 718 (“In addition [to available N.Y.S. post-deprivation

remedies], any significant unresolved questions concerning the

transcript’s accuracy could be raised on appeal, and if found to

be substantial, would permit a remand of the proceedings back to

the original trial judge to resettle the transcript. (citations

omitted)).

CONCLUSION

Accordingly, IT IS HEREBY ORDERED that Plaintiff’s TRO

Motion (ECF No. 4) is DENIED; to the extent Plaintiff also seeks

preliminary injunctive relief, that request is held in abeyance

pending the Court’s Section 1915A screening of the Complaint.

IT IS FURTHER ORDERED that, pursuant to 28 U.S.C.

§ 1915(a)(3), the Court certifies any appeal from this Order would

not be taken in good faith. Therefore, in forma pauperis status

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is DENIED for the purpose of any appeal. See Coppedge v. United

States, 369 U.S. 438, 444-45 (1962); and

IT IS FURTHER ORDERED that the Clerk of Court mail a

copy of this Order to the pro se Plaintiff at his address of

record, including the notation “LEGAL MAIL” on the mailing

envelope.

SO ORDERED.

/s/ JOANNA SEYBERT______

Joanna Seybert, U.S.D.J.

Dated: March _2_, 2023

Central Islip, New York

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