Bourdon v. Loughren

• Decision Date: 05 October 2004
• Docket Number: No. 03-0196.,03-0196.
• Parties: Ronald D. BOURDON, Plaintiff-Appellant, v. Thomas LOUGHREN, Chenango County Sheriff, Vincent Marcenelli, Chenango County Undersheriff, Henry Campbell, Chenango County Deputy Sheriff, Sergeant Robinson, Chenango County Deputy Sheriff, in their official and individual capacities, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

Page 88

386 F.3d 88

Ronald D. BOURDON, Plaintiff-Appellant, v. Thomas LOUGHREN, Chenango County Sheriff, Vincent Marcenelli, Chenango County Undersheriff, Henry Campbell, Chenango County Deputy Sheriff, Sergeant Robinson, Chenango County Deputy Sheriff, in their official and individual capacities, Defendants-Appellees.

No. 03-0196.

United States Court of Appeals, Second Circuit.

Submitted: February 19, 2004.

Decided: October 5, 2004.

Appeal from the United States District Court for the Northern District of New York, Scullin, C.J Ronald D. Bourdon, Auburn, NY, pro se.

John J. Walsh, Boeggeman, George, Hodges & Corde, P.C., White Plains, NY, for Defendants-Appellees.

Before: OAKES, KEARSE, and CABRANES, Circuit Judges.

Judge OAKES concurs in the result in a separate concurring opinion.

JOSE A. CABRANES, Circuit Judge.

Ronald Bourdon — a pretrial detainee in the Chenango County, New York jail at the time relevant to this appeal — claims that officials of the Chenango County Jail ("defendants") violated his constitutional right of access to the courts¹ by denying his request for reference materials from the jail's law library, failing to maintain a law library with adequate and up-to-date materials, and failing to provide timely services of a public notary, all of which allegedly harmed Bourdon in his efforts to prepare and file pro se a timely pretrial motion to dismiss the state criminal indictment pursuant to which he was being detained. At the time Bourdon requested the materials and notary services and ultimately moved to dismiss the indictment, Bourdon — an indigent prisoner — was represented by court-appointed counsel.

Raising only an access-to-the-courts claim, Bourdon filed a complaint in the United States District Court for the Northern District of New York (Frederick J. Scullin, Jr., Chief Judge) pursuant to 42 U.S.C. § 1983.² On cross-motions for summary judgment, the District Court granted defendants' motion and dismissed the complaint.

On appeal, Bourdon contends that the District Court erred in granting summary judgment to defendants. He argues that his appointed counsel was ineffective and therefore, notwithstanding his representation by that attorney, defendants hindered Bourdon's access to the state trial court, in violation of his constitutional right of access to the courts, when they denied Bourdon's request for reference materials. Bourdon, however, has not asserted a cause of action of ineffective assistance of counsel, and, in any event, an ineffectiveness cause of action would be inappropriate in a proceeding brought under § 1983. See Polk County v. Dodson, 454 U.S. 312, 318-19, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981) (holding that public defenders do not act "under color of state law" and therefore are not subject to suit under 42 U.S.C. § 1983); Rodriguez v. Weprin, 116 F.3d 62, 65-66 (2d Cir.1997) ("[I]t is well-established that court-appointed attorneys performing a lawyer's traditional functions as counsel to defendant do not act `under color of state law' and therefore are not subject to suit under 42 U.S.C. § 1983."). Rather, in service of his access-to-the-courts claim, Bourdon invokes the effectiveness inquiry relevant to the Sixth Amendment's guarantee of the assistance of counsel.³ It is true that the rights to assistance of counsel and of access to the courts "are interrelated.... However, the two rights are not the same." Benjamin v. Fraser, 264 F.3d 175, 186 (2d Cir.2001). For the reasons discussed below, we reject Bourdon's argument that the effectiveness inquiry pertinent to the Sixth Amendment right to counsel informs the inquiry relevant to an alleged violation of access to the courts. Instead, we conclude that the appointment of Bourdon's counsel satisfied the state's obligation to provide access to the courts, and we affirm the order of the District Court.

BACKGROUND

In the fall of 1996, Bourdon was incarcerated in the Chenango County Jail pursuant to New York State charges of possession of a stolen vehicle, driving while intoxicated, and aggravated unlicensed operation of a motor vehicle in the first degree. While incarcerated, Bourdon requested reference materials from the jail's law library in order to prepare, pro se, pretrial motions to dismiss the indictment and to be relieved of his current counsel and receive replacement counsel. Defendants denied Bourdon's request for materials, on the grounds that Bourdon was represented at the time by court-appointed counsel — namely, the Public Defender of Chenango County — from whom Bourdon could request the materials he desired. Defendants, who do not have supervisory authority over court-appointed counsel, adhered to their position when Bourdon, who never requested the materials from his attorney, stated only that he had not heard from his attorney and indicated that he was disappointed with his attorney's services.

Without reference materials from the library, Bourdon filed his pro se motions. The state trial court denied the motion to dismiss, finding that the motion was untimely⁴ and that Bourdon, rather than defendants, was responsible for the late filing. The court, however, granted Bourdon's motion for new counsel; that motion was not contested by the Public Defender.⁵

Shortly thereafter, on January 24, 1997, Bourdon filed the instant § 1983 lawsuit, claiming in an amended complaint that he had been deprived of his constitutional right of access to the courts when defendants denied his request for reference materials and delayed provision of notary services necessary for Bourdon to file properly his pro se motion to dismiss the state indictment against him. On March 6, 2000, on cross-motions for summary judgment, the District Court adopted the report and recommendation of then-Magistrate Judge David N. Hurd⁶ that recommended entry of judgment for defendants and dismissal of the complaint.

On Bourdon's appeal from the District Court's order granting summary judgment to defendants and dismissing the complaint, this Court held that the District Court, before ruling in favor of defendants, should have apprised Bourdon, a pro se litigant, of the consequences of failing to file a response to defendants' summary judgment motion. Accordingly, in a summary order, Bourdon v. Loughren, 7 Fed.Appx. 116, 2001 WL 345138, at *3 (2d Cir. Apr.6, 2001), the order was vacated and the cause remanded to the District Court.

On remand, the parties re-filed cross-motions for summary judgment. Then-Magistrate Judge Gary L. Sharpe concluded that Bourdon's right of access to the courts had not been denied, finding that Bourdon could have asked for an extension of time to move to dismiss the indictment and that the denial of Bourdon's motion to dismiss resulted from Bourdon's inaction, not because Bourdon was delayed access to notary services. The magistrate judge also determined that Bourdon was represented by counsel during all times that he claimed he was denied access to the courts. Accordingly, the magistrate judge recommended that the District Court again grant defendants' motion for summary judgment. On July 14, 2003, the District Court agreed, adopting in full the magistrate judge's report and recommendation and granting summary judgment to defendants. Bourdon timely appealed.

On appeal, Bourdon maintains that defendants' denial of his request for reference materials regarding his motions to dismiss the indictment and to obtain replacement counsel, the alleged deficiencies in the jail's law library, and the delay in the provision of notary services hindered his efforts to file a timely motion to dismiss and otherwise present his claims and grievances to the state trial court.⁷ He asserts: "Had the Defendants provided Plaintiff with legal assistance and research materials his pro se motion to dismiss the indictment would not have been dismissed as untimely, Plaintiff would have argued effectively that his motion was not untimely, that [certain days] should not have been included in the 5 day time limit." Appellant's Br. at 7. He further asserts that when he requested the library materials, he "was without effective assistance of counsel." Id. For these reasons, Bourdon claims that defendants deprived him of his constitutional right of access to the courts.

DISCUSSION

I. Standard of Review

We review a grant of summary judgment de novo, construing the record in the light most favorable to the non-moving party. See, e.g., Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003).

II. Right of Access to the Courts

Prisoners, including pretrial detainees, "have a constitutional right of access to the courts," Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977); accord Lewis v. Casey, 518 U.S. 343, 350, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996), grounded, as relevant to prisoners, in the constitutional guarantees of equal protection and due process, see, e.g., Murray v. Giarratano, 492 U.S. 1, 11 n. 6, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989) ("The prisoner's right of access has been described as a consequence of the right to due process of law, and as an aspect of equal protection." (internal citations omitted)); see also Christopher v. Harbury, 536 U.S. 403, 415 n. 12, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002) (observing that, in various civil and criminal cases, the Supreme Court has grounded the right of access to the courts in the Privileges and Immunities Clause of Article IV, the Petition Clause of the First Amendment, the Due Process Clauses of the Fifth and Fourteenth Amendments, and the Equal Protection Clause of the Fourteenth Amendment).⁸ The Supreme Court explained in Bounds that this right "requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." Bounds, 430 U.S. at 828, 97 S.Ct. 1491. But the Supreme Court has likewise instructed...