Braithwaite v. Tropea

UNITED STATES DISTRICT COURT

6/27/2023 1: 25 pm

EASTERN DISTRICT OF NEW YORK U.S. DISTRICT COURT

---------------------------------------X EASTERN DISTRICT OF NEW YORK

KESTON BRAITHWAITE, LONG ISLAND OFFICE

Plaintiff,

-against- MEMORANDUM AND 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.

---------------------------------------X

APPEARANCES

For Plaintiff: Keston Braithwaite, pro se

22B4593

Sing Sing Correctional Facility

354 Hunter Street

Ossinig, New York 10562

For Defendants: No appearance.

SEYBERT, District Judge:

By Order dated March 2, 2023 (the “Order”), the Court

granted the Application to Proceed in District Court Without Paying

Fees or Costs (Application, ECF No. 2) filed by incarcerated

Plaintiff Keston Braithwaite (“Plaintiff”) together with his pro

se Complaint (Compl., ECF No. 1).1 (See Order, ECF No. 9.) The

1 The Order also denied Plaintiff’s Motion for Order to Show Cause

seeking an order: (1) directing 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 (2) requesting Defendants temporarily be

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

Complaint is brought pursuant to 42 U.S.C. § 1983 (“Section 1983”)

against Frank Tropea, the Clerk of the Court, County Court Suffolk

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

and Susan Conner,2 Senior Court Reporter (“Conner”; collectively,

the “Defendants”).

Upon review of Plaintiff’s Complaint (ECF No. 1) in

accordance with 28 U.S.C. § 1915A(a), the Court finds that

Plaintiff has not alleged a plausible claim for relief.

Accordingly, for the reasons that follow, the Complaint is

DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915A(b). Given

the dismissal of the Complaint, Plaintiff’s motion seeking a

preliminary injunction (ECF No. 4) is DENIED.

RELEVANT BACKGROUND AND SUMMARY OF THE COMPLAINT

Plaintiff is a prolific filer in this Court; excluding

the instant action, since January 2022, he has filed eight

concealment of Records and falsifying documents.” (Order at 1-2

(citing OSC Motion, ECF. No. 4, and Pl.’s Support Aff., ECF No. 4-

1).) The Court ruled on Plaintiff’s OSC Motion to the extent it

sought a temporary restraining order (“TRO”) and held 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 Order at 2 n.1.)

2 Notably, the Sentencing Transcript filed by Plaintiff as Exhibit

18 to his Complaint (see ECF No. 7-4 at 2) reflects that the Court

Reporter’s sur-name is “Connors” rather than “Conner”. For

consistency with Plaintiff’s Complaint, the Court will use

“Conner” in this Memorandum and Order.

2

unsuccessful 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). In his

present Section 1983 Complaint, which relates to his arrest and

state court criminal prosecution,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 submitted the $143 copying fee (as

a money order), Tropea failed to turn over the requested copies of

Plaintiff’s state-court file (see Compl. at ECF pp. 5-7, 11-12);

3 The Court presumes 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

(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 in open court “to block Plaintiff from inspecting

his Court file” (id. at ECF pp.9, 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 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

4

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

[sic] 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.)

5

DISCUSSION

I. Legal Standards

A. Consideration of the Complaint Under 28 U.S.C. § 1915A

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 (“PLRA”),

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. See 28 U.S.C. § 1915A(b); see also Abbas

v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). 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).

Courts are obliged to construe the pleadings of a pro se

plaintiff liberally. See Sealed Plaintiff v. Sealed Defendant,

537 F.3d 185, 191 (2d Cir. 2008); McEachin v. McGuinnis, 357 F.3d

197, 200 (2d Cir. 2004). However, a complaint must plead

sufficient facts to “state a claim to relief that is plausible on

its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

6

“A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

The plausibility standard requires “more than a sheer possibility

that a defendant has acted unlawfully.” Id.; accord Wilson v.

Merrill Lynch & Co., 671 F.3d 120, 128 (2d Cir. 2011). While

“detailed factual allegations” are not required, “[a] pleading

that offers ‘labels and conclusions’ or ‘a formulaic recitation of

the elements of a cause of action will not do.’” Iqbal, 556 U.S.

at 678 (quoting Twombly, 550 U.S. at 555).

B. Section 1983

Section 1983 provides:

[e]very person who, under color of any

statute, ordinance, regulation, custom, or

usage, of any State . . . subjects, or causes

to be subjected, any citizen of the United

States . . . to the deprivation of any rights,

privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured . . . .

42 U.S.C. § 1983; accord Rehberg v. Paulk, 566 U.S. 356 (2012).

To state a claim under Section 1983, a plaintiff must “‘allege

that (1) the challenged conduct was attributable at least in part

to a person who was acting under color of state law and (2) the

conduct deprived the plaintiff of a right guaranteed under the

7

Constitution of the United States.’” Rae v. County of Suffolk,

693 F. Supp. 2d 217, 223 (E.D.N.Y. 2010) (quoting Snider v. Dylag,

188 F.3d 51, 53 (2d Cir. 1999)).

Plaintiff alleges a deprivation of his First, Fifth,

Sixth, and Fourteenth Amendment rights (Compl., ECF No. 1, at 4

(Section II.B)) and, as liberally construed, the Complaint

purports to allege denial of a fair trial, as well as procedural

and substantive due process claims.

C. Application

Before addressing the merits of Plaintiff’s Section 1983

claims, the Court first considers several threshold barriers to

the adjudication of his claims.

1. Immunity

a. Absolute Judicial Immunity

Plaintiff’s Section 1983 claims against Judge Collins

are subject to dismissal because, as a judge employed by the state

of New York, he is absolutely immune from suit. It is well-

established that judges “generally have absolute immunity” from

suit for judicial acts performed in their judicial capacities.

Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir. 2009) (citing Mireles

v. Waco, 502 U.S. 9, 11 (1991)); Hardy-Graham v. Southampton Just.

Ct., No. 20-CV-0981, 2021 WL 260102, at *5 (E.D.N.Y. Jan. 25, 2021)

8

(Seybert, J.). This absolute “judicial immunity is not overcome

by allegations of bad faith or malice,” nor can a judge “be

deprived of immunity because the action he took was in error . . .

or was in excess of his authority.” Mireles, 502 U.S. at 11, 13

(internal quotation marks and citation omitted; ellipsis in

original). Rather, judicial immunity is overcome in only two

instances. The first instance is “liability for nonjudicial

actions, i.e., actions not taken in the judge’s judicial capacity.”

Bliven, 579 F.3d at 209 (quoting Mireles, 502 U.S. at 11). The

second instance is liability arising from actions taken “‘in the

complete absence of all jurisdiction.’” Basile v. Connolly, 538

F. App’x 5, 7 (2d Cir. 2013) (quoting Mireles, 502 U.S. at 11-12;

emphasis in the original).

Here, even upon a liberal construction, Plaintiff’s

allegations do not suggest that either exception applies to

overcome absolute judicial immunity. Clearly Judge Collins acted

within his jurisdiction given that the alleged conducted occurred

in open court during the criminal prosecution that lead to

Plaintiff’s state court conviction. There can be no doubt that

state court prosecution for violations of state laws relating to

drug possession and weapon possession is the very kind of case

over which state courts have jurisdiction. Accordingly, Judge

9

Collins is shieled from suit by absolute immunity.4

The absolute immunity afforded to judges is not limited

to judges alone, but also extends to “certain others who perform

functions closely associated with the judicial process.” Oliva

v. Heller, 839 F.2d 37, 39 (2d Cir. 1988) (citation omitted); see

also McKeown v. N.Y. State Comm’n on Judicial Conduct, 377 F. App’x

121, 124 (2d Cir. 2016). Here, Tropea is entitled to absolute

immunity given that Plaintiff’s allegations against him concern

conduct that is “closely related to the judicial process.”

Jackson v. Pfau, 523 F. App’x 736, 737-38 (2d Cir. 2013) (affirming

4 Although “[t]he doctrine of judicial immunity does not shield

judges from claims for prospective declaratory relief,” Krupp v.

Todd, No. 14-CV-0525, 2014 WL 4165634, at *4 (N.D.N.Y. Aug. 19,

2014), “[a]bsolute judicial immunity bars declaratory judgment

claims that are retrospective in nature in that they seek a

declaration that a judge’s past behavior has violated the

Constitution.” Leathersich v. Cohen, No. 18-CV-6363, 2018 WL

3537073, at *4 (W.D.N.Y. July 23, 2018) (internal quotation

omitted) (citing cases); see also Moore v. City of N.Y., No. 12-

CV-4206, 2012 WL 3704679, at *2 (E.D.N.Y. Aug. 27, 2012) (“Judicial

immunity also bars . . . claims for retrospective declaratory

relief.”). A review of the Complaint makes clear that it is

targeted at Judge Collins’s conduct in Plaintiff’s concluded state

court action. (See Compl., ECF No. 1, in toto.) Indeed, Plaintiff

seeks not to vindicate some prospective right, but a declaration

that Judge Collins’s prior judicial actions were erroneous. Given

that Plaintiff seeks retrospective relief, such claims are barred.

Montesano v. New York, Nos. 05-CV-9574, 05-CV-10624, 2006 WL

944285, at *4 (S.D.N.Y. Apr. 12, 2006) (neither “injunctive nor

declaratory relief is available to be used as a vehicle for

disgruntled litigants to reverse adverse judgments”) (citing

Huminski v. Corsones, 396 F.3d 53 (2d Cir. 2005)).

10

dismissal pursuant to Section 1915(e)(2)(B) of pro se plaintiff’s

Section 1983 claims against judicial law clerk, the N.Y.S. Chief

Administrative Judge, court attorneys, and the Chief Clerks of

several state courts, finding “defendants were entitled to

judicial immunity, because [][the] allegations against each of

them concerned actions that were judicial in nature or closely

related to the judicial process” (citing Rodriguez v. Weprin, 116

F.3d 62, 66 (2d Cir. 1997) (noting that “[c]ourts have extended

the absolute judicial immunity afforded judges to individuals

. . . who perform functions closely associated with the judicial

process,” and holding that judges and their supporting staff are

absolutely immune in matters regarding “[a] court’s inherent power

to control its docket”)).

As a result, Plaintiff’s Section 1983 claims against

Judge Collins and Tropea are not plausible as a matter of law and

are, therefore, DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. §

1915A(b). See Mills v. Fischer, 645 F.3d 176, 177 (2d Cir. 2011)

(“Any claim dismissed on the ground of absolute judicial immunity

is ‘frivolous’ for purposes of [the IFP statute].”).

b. Eleventh Amendment Immunity

“‘[A]s a general rule, state governments may not be sued

in federal court unless they have waived their Eleventh Amendment

11

immunity or unless Congress has abrogate[d] the states’ Eleventh

Amendment immunity . . . .’” Griggs v. Crim. Ct. of City of N.Y.,

No. 21-CV-1899, 2021 WL 1535056, at *2 (S.D.N.Y. Apr. 19, 2021),

appeal dismissed (Oct. 28, 2021) (quoting Gollomp v. Spitzer, 568

F.3d 355, 366 (2d Cir. 2009) (internal quotation marks and citation

omitted, alteration in original)). “This immunity shields States

from claims for money damages, injunctive relief, and

retrospective declaratory relief.” Griggs, 2021 WL 1535056, at

*2 (citing Green v. Mansour, 474 U.S. 64, 72-74 (1985); Pennhurst

State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02 (1984)).

Plaintiff claims that Tropea failed to perform his

duties; yet, there are no allegations that Tropea acted outside of

his official capacity. (See Compl., in toto.) Indeed, Tropea is

a state officer because he is the Chief Clerk of the Suffolk County

Court, and the Suffolk County Court is an arm of the New York state

court system.5 See Gollomp, 568 F.3d at 366–67 (“[E]very court to

consider the question of whether the New York State Unified Court

System is an arm of the State has concluded that it is, and is

5 Although Plaintiff alleges Tropea is the Clerk of the Court,

County Court of Suffolk County (see ECF No. 1 at 2), the

information maintained by the New York State Office of Court

Administration on its public website reflects that Tropea is the

Chief Clerk of that court. See

https://ww2.nycourts.gov/courts/10jd/suffolk/county.shtml (last

visited on June 16, 2023).

12

therefore protected by Eleventh Amendment sovereign immunity.”);

Fishman v. Off. of Ct. Admin. N.Y.S. Cts., No. 18-CV-0282, 2020 WL

1082560, at *7 (S.D.N.Y. Mar. 5, 2020), aff’d, No. 20-1300, 2021

WL 4434698 (2d Cir. Sept. 28, 2021) (“[T]he Second Circuit has

specifically held that the New York State Unified Court System is

unquestionably an arm of the State, and is entitled to Eleventh

Amendment sovereign immunity.” (internal quotation marks and

citation omitted)). Accordingly, Tropea is shielded from suit by

the Eleventh Amendment, and Plaintiff’s Section 1983 claims are

therefore implausible. See Watanmaker v. Clark, No. 09-CV-3877,

2010 WL 3516344, at *7 (E.D.N.Y. Aug. 31, 2010) (dismissing Section

1983 claims alleged against the Chief Clerk of the Suffolk County

District Court as barred by the Eleventh Amendment (citing

Casaburro v. Guiliani, 986 F. Supp. 176, 182 (S.D.N.Y. 1997)

(granting state court clerk’s motion to dismiss official capacity

suit on Eleventh Amendment grounds)); Davis v. State of N.Y., No.

90-CV-6170, 1991 WL 156351, at *2 (S.D.N.Y. Aug. 6, 1991)

(dismissing claim against state-court officials on Eleventh

Amendment grounds), aff’d 106 F. App’x 82 (2d Cir. 2004); see also

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

13

allegations that clerk of court acted in individual capacity);

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))). Thus, Plaintiff’s Section 1983 claims against Tropea are

also barred by the Eleventh Amendment and are DISMISSED WITH

PREJUDICE as pursuant to 28 U.S.C. § 1915A(b).6

c. Qualified Immunity

Plaintiff’s Section 1983 claims against Conner are not

plausible because she is entitled to qualified immunity.

Qualified immunity shields government officials from civil

liability resulting from the performance of their discretionary

functions only where their conduct “does not violate clearly

established statutory or constitutional rights of which a

6 Similarly, given that Judge Collins is also a New York state

employee, he too is shielded from liability in his official

capacity by the Eleventh Amendment. See Silvels v. New York, 81

F. App’x 361, 362 (2d Cir. 2003) (affirming dismissal of Section

1983 claims sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)

on the grounds of judicial and Eleventh Amendment immunity).

Moreover, given Conner’s apparent employment by the New York State

Office of Court Administration as an Official Senior Court

Reporter, she too would be shieled from liability in her official

capacity by the Eleventh Amendment. However, the Court need not

reach that question for the reasons that follow.

14

reasonable person would have known.” Wallace v. Suffolk County

Police Dep’t, 396 F. Supp. 2d 251, 265 (E.D.N.Y. 2005) (Seybert,

J.) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To

determine whether qualified immunity applies, courts consider

“whether the facts shown make out a violation of a constitutional

right and whether the right at issue was clearly established at

the time of the defendant’s alleged misconduct.” Tankleff v.

County of Suffolk, No. 09-CV-1207, 2017 WL 2729084, at *17

(E.D.N.Y. June 23, 2017) (Seybert, J.) (quoting Estate of Devine

v. Fusaro, 676 F. App’x 61, at *1 (2d Cir. 2017) (cleaned up)).

Whether a right was clearly established should be analyzed from

the perspective of a reasonable official, and the relevant inquiry

is whether “it would be clear to a reasonable offic[ial] that his

conduct was unlawful in the situation he confronted.” Id.

The United State Supreme Court has long extended

qualified immunity to court reporters, such as Conner, where their

conduct does not violate clearly established statutory or

constitutional rights. See Antoine v. Byers & Anderson Inc., 508

U.S. 429 (1993) (holding that court reporters are qualifiedly, not

absolutely, immune from suit); Harlow, 457 U.S. at 818 (discussing

standard for establishing qualified immunity); see also Green v.

v. Maraio, 722 F. 2d 1013, 1019 (2d Cir. 1983) (finding Rule

15

12(b)(6) dismissal of claim against court reporter on grounds of

qualified immunity was appropriate where the complaint alleged

court reporter acted pursuant to judge’s explicit instructions).

Indeed, “there is no constitutional or federal statutory right to

an absolutely accurate trial transcript.” Burrell v. Swartz, 558

F. Supp. 91, 92 (S.D.N.Y. 1983). Thus, insofar as Plaintiff

complains that Conner excluded the words “ping data” at pages 86

and 87 from the 121-page sentencing transcript, in the absence of

any constitutional or federal statutory right to an “absolutely

accurate” transcript, Conner is protected by qualified immunity.7

7 Insofar as Plaintiff complains that the alleged transcript

errors prejudice an appeal of his conviction, such facts may form

the basis of a proper Section 1983 claim at the appropriate time.

A criminal defendant possesses a due process right to a

“substantially accurate” transcript in a criminal proceeding.

Argentieri v. Majerowicz, 158 F. App’x 306, 307 (2d Cir. 2005)

(summary order). However, “[m]ore than an inaccurate transcript

is necessary to state a claim, [] [and] a [p]laintiff must also

show that the alleged inaccuracies adversely affected the outcome

of her proceedings.” Wilson v. Richards, No. 14-CV-2459, 2014 WL

6682579, at *2 (S.D.N.Y. Nov. 25, 2014) (citing Tedford v. Hepting,

990 F.2d 745, 748 (3d Cir. 1993) (internal quotation marks

omitted); also citing Argentieri, 158 F. App’x at 308 (affirming

summary judgment for defendant because plaintiff was not “deprived

in any way of his access to courts or right to an effective

appeal”)). Any such claim is premature at this juncture given

that the appeal filed by Plaintiff is not yet perfected. See

People v. Braithwaite, No. 2022-09001, May 5, 2023 Decision and

Order (N.Y. App. Div., 2d Dep’t 2023) (granting Braithwaite leave

to prosecute the appeal as a poor person, assigning appellate

counsel, and granting extension to perfect appeal). In turn, any

related claim of prejudice is currently speculative, making it

implausible. See Burrell, 558 F. Supp. at 92 (“[I]f a state

16

McCaw v. McPartland, No. 17-CV-6431, 2018 WL 10701609, at *1

(S.D.N.Y. Apr. 2, 2018).

Accordingly, Plaintiff’s Section 1983 claims against

Conner are not plausible and are thus DISMISSED WITH PREJUDICE

pursuant to 28 U.S.C. § 1915A(b). See Green, 722 F. 2d at 1019

(affirming dismissal of claims against court reporter on basis of

qualified immunity and stating: “allowing . . . dismissal whenever

the basis for finding qualified immunity applicable is established

by the complaint itself ‘permit[s] ‘[i]nsubstantial lawsuits [to]

official intentionally alters a transcript in a way that prejudices

a defendant’s appeal, the due process clause of the fourteenth

amendment might be violated . . . . To prove such a violation

plaintiff would have to show . . . the existence of intentional

tampering; then, he would have to prove the alleged errors and

omissions in the trial transcript prejudice his statutory right to

appeal.” (citations omitted)); Godfrey v. Irvin, 871 F. Supp. 577,

584 (W.D.N.Y. 1994) (“In order to demonstrate denial of a fair

appeal, [plaintiff] must show prejudice resulting from the missing

or incomplete transcript.”). Thus, any substantive due process

claim is not plausible given the absence of any allegation that

Plaintiff suffered “some tangible harm.” Curro v. Watson, 884 F.

Supp. 708, 720 (E.D.N.Y. 1995), aff’d, 100 F.3d 942 (2d Cir. 1996);

see also Collins, 438 F. Supp. 2d 399, 415–16 (2d Cir. 2006)

(plaintiff alleging violation of right to access to the courts

must allege an “actual injury”). Upon careful review of the

Complaint, Plaintiff has not alleged any tangible harm. (See

Compl., in toto.) Plaintiff does not allege that he was not

successful in his Article 78 proceedings. Even if he was

unsuccessful in those proceedings, he does not allege that any

such failure stemmed from the transcriptions. Compare Collins,

438 F. Supp. 2d at 417 (prisoner adequately alleged tangible harm

where he alleged that his Article 78 proceeding was dismissed when

prison officials failed to provide him with necessary copies of

documents).

17

be quickly terminated’’”) (quoting Harlow, 457 U.S. at 814; further

citation omitted); Griggs v. Crim. Ct. of City of N.Y., No. 21-

CV-1899, 2021 WL 1535056, at *3 (S.D.N.Y. Apr. 19, 2021), appeal

dismissed (Oct. 28, 2021) (sua sponte dismissing Section 1983

claims pursuant to 28 U.S.C. § 1915(e)(2)(B) against two court

reports in the absence of “any facts that suggest that the court

reporters’ conduct violated any of [p]laintiff’s clearly

established statutory or constitutional rights”).

Given the dismissal of Plaintiff’s federal claims

against the Defendants on immunity grounds, the Court need not

reach the merits. However, in light of his pro se status, the

Court explains, to the extent that Plaintiff complains that the

allegedly inaccurate sentencing transcript “deprived him of due

process, such a claim would fail, because New York has adequate

procedures for correcting alleged inaccuracies in transcripts.”

See id., (citing Curro, 884 F. Supp. at 720-23); Collins v. N.Y.

City, No. 19-CV-7156, 2019 WL 4805692, at *3 (S.D.N.Y., 2019) (sua

sponte dismissing Section 1983 claims upon initial screening,

explaining “[t]o the extent [p]laintiff 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”) (citing Curro, 884 F. Supp.

18

at 720-23) (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 and

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)).8

Moreover, “[a] claim that deficiencies in the trial

transcripts were so great that the plaintiff’s constitutional

rights on appeal were violated is ‘a direct challenge to the

validity of the conviction and the legality of plaintiff’s

8 Plaintiff’s allegation that the transcript was deliberately

tampered with does not save his procedural due process claim

because the state provides adequate post-deprivation remedies.

See Curro, 884 F. Supp. at 717–19 (prisoner who alleged that court

reporters deliberately altered the transcript of his criminal

trial did not state procedural due process claim because New York

provides a procedure for challenging inaccuracies in trial

transcripts).

19

confinement.’” Stokes v. Kreidler, No. 18-CV-0113, 2018 WL

1226027, at *3 (N.D.N.Y. Jan. 30, 2018), report and recommendation

adopted, 2018 WL 1229699 (N.D.N.Y. Mar. 8, 2018) (citing Davison

v. Reyes, No. 11-CV-0167, 2012 WL 948591, at *3 (E.D.N.Y. Mar. 20,

2012)). The sole remedy for a challenge to Plaintiff’s conviction

is under 28 U.S.C. § 2254, after exhausting his state court

remedies. See, e.g., Bridgeforth v. County of Rensselaer, No. 08-

CV-0779, 2008 WL 5156936, at *4 (N.D.N.Y. Dec. 8, 2008), adhered

to on denial of reconsideration, 2009 WL 102959 (N.D.N.Y. Jan. 13,

2009) (dismissing Section 1983 claims alleging, inter alia, that

the prosecutor, judge, and court reporter conspired to alter

official court records because “any attack on the sentence for

which Plaintiff is currently serving cannot be attacked in a § 1983

action without an indication that such sentence has been reversed”

(citing Heck v. Humphrey, 512 U.S. 477, 486-87 (1994)).

Accordingly, as is readily apparent, Plaintiff’s Section

1983 claims are not plausible even if the Court were to consider

the merits.

II. Leave to Amend

Given the Second Circuit’s guidance that a pro se

complaint should not be dismissed without leave to amend unless

amendment would be futile, see Cuoco v. Moritsugu, 222 F.3d 99,

20

112 (2d Cir. 2000), the Court has carefully considered whether

leave to amend is warranted. Here, because Plaintiff could not

cure the substantive deficiencies set forth above with better

pleading, amendment would be futile. Accordingly leave to amend

the Complaint is DENIED.

CONCLUSION

Accordingly, IT IS HEREBY ORDERED that, upon this

Court’s Section 1915A(a) screening of the Complaint, Plaintiff

fails to allege a plausible claim for relief for the reasons set

forth above; and

IT IS FURTHER ORDERED that the Complaint is DISMISSED

pursuant to 28 U.S.C. § 1915A(b) given that it fails to state a

claim and seeks monetary relief from Defendants who are immune

from such relief and it is frivolous; and

IT IS FURTHER ORDERED that Plaintiff’s motion seeking a

preliminary injunction (ECF No. 4) is DENIED; and

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

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

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

21

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: June 27, 2023

Central Islip, New York

22