Mathis v. Bess
| Decision Date | 10 August 1988 |
| Docket Number | No. 85 Civ. 4426 (GLG).,85 Civ. 4426 (GLG). |
| Citation | 692 F. Supp. 248 |
| Parties | Homer Aki MATHIS, on behalf of himself and on behalf of all others similarly situated, Plaintiffs, v. Thomas J. BESS, as Supervising Court Stenographer, Criminal Court, New York City, Harold J. Reynolds, as Clerk of the Appellate Division of the First Judicial Department of New York; Phillip L. Weinstein, as Attorney-in-Charge, the Criminal Appeals Bureau of the Legal Aid Society of New York; Geoffrey Q. Ralls, as Administrator of the Assigned Counsel Plan; Thomas Coughlin, III as Commissioner of the New York State Department of Correctional Services; Albert M. Rosenblatt, as the Chief Administrative Judge of the State of New York; Donald Oshinsky; Linda Pazzani; Anna L. Bolgier; Joel Machlis; Rose Dunn; Anthony Moscato; Sanford Aranow; Michael Frankel; Peter F. Anderson; and Ruben S. Schofield, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Robert Abrams, Atty. Gen., New York City (Melissa Saren, Asst. Atty. Gen., of counsel), for State defendants.
Ross & Hardies, New York City (Peter I. Livingston, of counsel), for defendant Phillip L. Weinstein, as Atty.-in-Charge, The Criminal Appeals Bureau of the Legal Aid Society of New York.
Davis Polk & Wardwell, New York City (Charles E.F. Millard, Jr., Richard Goldstein, of counsel), for plaintiffs.
Plaintiff Homer Mathis, a New York state prisoner, commenced a pro se civil rights action, 42 U.S.C. § 1983, alleging his constitutional rights were violated as a result of the delays attendant to the appeal of his conviction for first degree robbery. He sought injunctive and declaratory relief, as well as damages. This case is now before the court upon the plaintiff's motion for class certification with respect to the claims for equitable relief, Fed.R.Civ.P. 23, and upon one defendant's motion to dismiss or, in the alternative, for summary judgment, as to it.
For the reasons set forth below, summary judgment is granted and the complaint is dismissed as to defendant Weinstein and plaintiff's motion for class certification is denied.
Plaintiff Mathis was found guilty on May 28, 1981, after a jury trial in New York County of four counts of robbery in the first degree, N.Y. Penal Law § 160.15. On October 5, 1981, he was sentenced as a predicate felon to four concurrent indeterminate terms of ten to twenty years. During the trial, plaintiff was represented by appointed counsel and The Legal Aid Society ("Legal Aid") represented a co-defendant.
On October 13, 1981, plaintiff pro se filed a notice of appeal. On November 17, 1981, the Appellate Division, 1st Dept., granted his application for leave to appeal as a poor person and appointed The Legal Aid Society as plaintiff's appellate counsel. The Appellate Division ordered the court stenographers to produce plaintiff's trial transcript and file it with the Clerk of the Appellate Division within twenty days of receipt of the order, N.Y. Crim.Proc.Law § 460.70,1 and ordered Legal Aid to perfect plaintiff Mathis' appeal within 120 days from the date of the filing of the record.
On January 4, 1982, The Legal Aid Society wrote to plaintiff acknowledging receipt of the assignment of his appellate case. Legal Aid also explained that "once we obtain the entire record, we shall assign one of our staff attorneys to examine the record, research the law, and prepare a brief." Millard Affirmation, Exh. 1.2
On or about March 2, 1983, one year and three months after it was due, the stenographic transcript of plaintiff's trial was filed with the Clerk of the Appellate Division, 1st Dept. The record was forwarded to Legal Aid by the Clerk on March 30, 1983. Soon thereafter, Legal Aid discovered the conflict of interest in that it had represented Mathis' co-defendant at trial. Consequently, on April 7, 1983, Legal Aid applied to be relieved as appellate counsel. On May 17, 1983, Legal Aid's application was granted and Peter Anderson, Esq., was appointed from a list of lawyers who handle appeals of indigents for a fee, known as the 18-B panel. The transcript was forwarded to Anderson on or about May 31, 1983. Approximately five months later, plaintiff received a letter from Anderson in which he stated that he would be filing an appeal with the court within the next three months.
Anderson never filed a brief on behalf of plaintiff and twice during the period of his representation of plaintiff, Mathis was informed by the Appellate Division his case was to be placed on the dismissal calendar. Plaintiff corresponded with the Appellate Division and successfully prevented his appeal from being dismissed. In response to plaintiff's request of May 24, 1984, the Appellate Division relieved Anderson as appellate counsel.
On or about July 5, 1984, the Appellate Division appointed Ruben Schofield, Esq., from the 18-B panel as counsel. Schofield was directed to perfect the appeal within 120 from the time he received the record, which was about August 23, 1984.
Schofield filed a brief on November 28, 1986, twenty-seven months after receipt of the transcript. Plaintiff was given permission to file a supplemental brief pro se and did so on May 21, 1987. Subsequently, on August 20, 1987, the District Attorney filed an answering brief in response to both plaintiff's pro se and counsel Schofield's briefs.
On October 20, 1987, the Appellate Division, 1st Dept. affirmed the plaintiff's conviction without opinion. On November 20, 1987, plaintiff filed an application, which was denied on January 12, 1988, for leave to appeal to the New York Court of Appeals.
During the period plaintiff Mathis was waiting for his appeal to be perfected and decided by the state court, he commenced the instant action pro se on June 10, 1985. The initial defendants were the Clerk of the Appellate Division, 1st Dept., and the court stenographers. Plaintiff's pro se complaint, brought pursuant to 42 U.S.C. § 1983, alleged his constitutional rights to due process and equal protection were violated because of the lengthy delay in providing him with transcripts of his criminal trial, a delay he alleges is encountered only by indigent appellants, not those who can afford private counsel. On March 19, 1986, plaintiff's pro se motion for leave to amend the complaint to add as a defendant the Appellate Division, 1st Dept., charging the court with failure to provide him with adequate counsel for his appeal, was denied. Mathis v. Clerk of the First-Department, Appellate Division, 631 F.Supp. 232 (S.D. N.Y.1986) (). The original defendants' cross motion for dismissal, Fed.R.Civ.P. 12(b)(6), was denied because it appeared to the court Mathis "may have a colorable claim that his due process rights were violated through the State's failure to promptly provide his trial transcript for an appeal." Id. at 236. In recognition of the fact that plaintiff's claims raised complex issues, which are "treacherous pleading waters" for the layman, id., the court ordered appointment of counsel. Subsequently, plaintiff was assigned pro bono counsel.
On August 27, 1987, plaintiff also filed a petition for a writ of habeas corpus alleging the state's delay in deciding his appeal constituted a denial of due process. On September 25, 1987, the district court dismissed the petition for failure to exhaust state remedies. The Court of Appeals reversed the lower court on the grounds it was unclear whether he had in fact exhausted his state remedies, but, in any event, under the circumstances, use of the proposed writ of error coram nobis would have been ineffective to protect plaintiff's rights. Mathis v. Hood, 851 F.2d 612 (2d Cir.1988). The case was remanded "to the district court to address the merits of petitioner's due process claim and determine what relief, if any, may be available." Id. at 615.
Concurrent with the petition for a writ of habeas corpus, plaintiff, in the case at bar, sought leave to file an amended class action complaint, and the motion was granted on September 14, 1987. The amended putative class action complaint was filed on October 8, 1987, approximately two weeks before Mathis' conviction was affirmed by the Appellate Division on October 20, 1987.
The class action complaint seeks injunctive and declaratory relief on behalf of plaintiff Mathis and all indigent criminal appellants represented on appeal by either The Legal Aid Society, or by an attorney from the Assigned Counsel Panel, 18-B, whose appeals in the Appellate Division, 1st Dept., have not been perfected within one year after the filing of the notice of appeal or have not been decided within two years of such filing. Included in plaintiff's prayer for relief is a request that the federal court enjoin the state Department of Correctional Services, pending the decision of the appeal, from continuing to incarcerate those indigent criminal appellants whose appeals have not been perfected within one year nor decided within two years of filing of the notice of appeal. In other words, plaintiff seeks to have all class members released from prison pending the resolution of their appeals. The class action defendants include:
Thomas J. Bess, as Supervising Court Stenographer, Criminal Court, New York City;
Harold J. Reynolds, as Clerk of the Appellate Division, 1st Dept.;
Phillip L. Weinstein, as Attorney-in-Charge, Criminal Appeals Bureau of The Legal Aid Society of New York ("Legal Aid");
Geoffrey Q. Ralls, as Administrator of the Assigned Counsel Plan;
Thomas Coughlin, III, as Commissioner of the New York State Department of Correction Services; and,
Albert M. Rosenblatt, as the Chief Administrative Judge of the State of New York.
Additionally, plaintiff sought damages on his own behalf against individual court stenographers for failure to provide him with...
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