Publicola v. Lomenzo

Decision Date05 April 2022
Docket Number1:21-CV-1303
PartiesPUBLIUS PUBLICOLA, Plaintiff, v. JOHN LOMENZO, TOWN OF PENFIELD, JOSEPH VALENTINO, DOUGLAS RANDALL, DESTINI BOWMAN, KAREN BAILEY TURNER, CRAIG DORAN, LEAH MERVINE, COUNTY OF MONROE, WILLIAM HOOKS, CARA BROUSSEAU, NEW YORK STATE LAW REPORTING BUREAU, SHAWN KERBY, and NANCY BARRY, Defendants.
CourtU.S. District Court — Northern District of New York

PUBLIUS PUBLICOLA Plaintiff, Pro Se

SCHWAB & GASPARINI, PLLC

OF COUNSEL: ANDREW J. SCHWAB, ESQ.

Attorneys for Defendants John

Lomenzo and Town of Penfield

SCHWAB & GASPARINI, PLLC

OF COUNSEL: JAMES A. RESILA, ESQ.

Attorneys for Defendants John

Lomenzo and Town of Penfield

HON. LETITIA JAMES

OF COUNSEL: BRITTANY M. HANER, ESQ., Ass't Attorney General

New York State Attorney General

Attorneys for Defendants Joseph Valentino, Douglas Randall, Destini Bowman, Karen Bailey Turner, Craig Doran, William Hooks, Cara Brousseau, New York Law Reporting Bureau, Shawn Kerby, and Nancy Barry

MONROE COUNTY LAW DEPARTMENT

OF COUNSEL: BRIAN P. GREEN, ESQ.

Attorneys for Defendants Leah Mervine and County of Monroe

MEMORANDUM-DECISION AND ORDER

DAVID N. HURD, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

On December 7, 2021, pro se plaintiff Publius Publicola (plaintiff), proceeding under a pseudonym, filed this 42 U.S.C. § 1983 action against defendants John Lomenzo, the Town of Penfield, Joseph Valentino, Douglas Randall, Destini Bowman, Karen Bailey Turner, Craig Doran, Leah Mervine, County of Monroe, William Hooks, Cara Brousseau, the New York State Law Reporting Bureau, Shawn Kerby, and Nancy Barry. Dkt. No. 1.

According to plaintiff's five-count, seventy-eight-page complaint and its forty-four attached exhibits, the fourteen named defendants have violated plaintiff's federal constitutional rights: initially, through their involvement in state court proceedings where plaintiff attempted to seal old criminal records; and later, by publishing or continuing to disseminate a state court order that includes plaintiff's name and personal identifying information.[1] See id.

On January 25, 2022, defendants Leah Mervine and the County of Monroe (the “County defendants) moved under 28 U.S.C. § 1404(a) to transfer this matter to the Western District of New York. Dkt. No. 15. According to the County defendants, most of the events alleged in plaintiff's complaint occurred in the Town of Penfield, which is situated in the Western District of New York. Id. Thereafter, the County defendants also moved under Federal Rule of Civil Procedure (“Rule”) 12(b) to dismiss the complaint for failure to state any plausible claims for relief against them. Dkt. No. 29.

On January 31, 2022, defendants John Lomenzo and the Town of Penfield (the “Town defendants) moved to transfer venue to the Western District of New York. Dkt. No. 21. They too argued that the relevant events occurred in the Western District of New York. Id. In addition to their venue transfer motion, the Town defendants also moved under Rule 12(b) to dismiss the complaint. Dkt. No. 28. According to the Town defendants, John Lomenzo, a former Town Justice in the Town of Penfield, is entitled to absolute judicial immunity from the § 1983 claims asserted by plaintiff and, as a result, plaintiff's claims alleging that the Town of Penfield failed to properly train Lomenzo regarding his federal constitutional obligations must also fail. Id.

On February 28, 2022, defendants Joseph Valentino, Douglas Randall, Destini Bowman, Karen Bailey Turner, Craig Doran, William Hooks, Cara Brousseau, New York State Law Reporting Bureau, Shawn Kerby, and Nancy Barry (the State defendants) moved under Rule 12(b) to dismiss plaintiff's complaint. Dkt. No. 32. According to the State defendants, plaintiff's § 1983 claims are barred by various immunity and jurisdictional principles and, even assuming otherwise, the complaint fails to state any plausible claims for relief under the First or Fourteenth Amendments. Id.

The motions have been fully briefed and will be decided on the basis of the submissions without oral argument.

II. BACKGROUND[2]

On July 15, 2015, plaintiff submitted a request to the Penfield Town Court seeking “all court records related to himself, including Certificates of Disposition and transcripts.” Compl. ¶ 30. As plaintiff explains, he was seeking a complete record of “matters from when he was a child, which included a traffic infraction and other violations, ” in anticipation of filing an application for a professional license that required him to “be candid” about this category of information. Id. ¶ 1.

On August 3, 2015, plaintiff contacted the Penfield Town Court to inquire about the cost of producing the court records he had requested and to offer to pay the cost in advance. Compl. ¶ 31. According to plaintiff, Elyse Voigt, an employee in the Penfield Town Court, “demanded that plaintiff pay [redacted sum] for a purported judgment outstanding from 2006.” Id.

Plaintiff further alleges that Ms. Voigt told him he must request any court records directly from John Lomenzo, who was then a judge in Penfield Town Court (Town Justice Lomenzo). Compl. ¶ 6; see also id. ¶ 31 (alleging that “at all relevant times, ” Lomenzo “was a judge with the Penfield Town Court).

On August 4, 2015, plaintiff received from Town Justice Lomenzo a letter that stated, inter alia, that plaintiff's records request would not be considered until it was notarized. Compl. ¶ 32. Plaintiff sought out a notary public, had his written request notarized, and re-sent it to the Penfield Town Court less than a week later. Id. ¶ 33.

On August 18, 2015, plaintiff received from Town Justice Lomenzo two telephone calls in which Lomenzo allegedly demanded that plaintiff pay a sum of money in exchange for the court records. Compl. ¶ 34. Plaintiff complied and sent a money order to the Penfield Town Court. Id.

On September 10, 2015, plaintiff received two “case history reports” in response to his records request. Compl. ¶ 35. Because plaintiff believed that these “case history reports” were an incomplete response to his records request, he re-contacted the Penfield Town Court to reiterate his desire for a complete set of records. Id. Plaintiff continued contacting the Penfield Town Court over the “next two months” in an effort to have his records request fully satisfied. Id. ¶ 36.

On October 26, 2015, plaintiff received from the Penfield Town Court a telephone call in which he was told that he needed to contact a transcriber for the transcripts.” Compl. ¶ 37. The Penfield Town Court provided plaintiff with contact information for a person who could perform this task. Id. He immediately contacted them. Id. As plaintiff explains, he was also told by the Penfield Town Court that only two of his cases could be transcribed at a time, so he would need to send additional notarized requests for his other cases. Id. Plaintiff did so on October 28, 2015. Id. ¶ 38.

On November 12, 2015, plaintiff telephoned Ms. Voigt at the Penfield Town Court to inquire about the status of his requests. Compl. ¶ 39. Ms. Voigt “stated that she would mail the court records he had requested on November 13, 2015 and provide the transcriber with the tapes to be transcribed by the end of that day, November 12, 2015.” Id.

The next day, November 13, 2015, plaintiff contacted the transcriber to inquire about the status of his requests. Compl. ¶ 40. The transcriber explained to plaintiff that she had not yet received the tapes from the Penfield Town Court, but that Ms. Voigt had told her she would receive them “no later than November 16, 2015.” Id.

On November 18, 2015, plaintiff telephoned Ms. Voigt to inquire about the status of his requests and to determine whether the transcriber had been provided with the tapes she needed. Compl. ¶ 41. Ms. Voigt promised to provide the transcriber with the tapes that day. Id. However, when plaintiff called Ms. Voigt the next day, he learned that she had not sent the tapes to the transcriber. Id. ¶ 42.

Instead, Ms. Voigt told plaintiff that he “needed to go before the judge” to explain “why” he needed the records. Compl. ¶ 42. Plaintiff re-contacted the Penfield Town Court. Id. ¶ 43. This time he spoke with Kerry Egerton instead of Ms. Voigt. Id. According to plaintiff, Ms. Egerton told him that Town Justice Lomenzo would call him about his records request. Id.

On November 19, 2015, plaintiff received from Town Justice Lomenzo a voicemail in which he stated that [b]oth of my court clerks indicate that you have been nasty on the phone. I'm telling you right now, do not call the court clerk's office for anything . . . . Under no circumstances are you to call my court clerks again.” Compl. ¶ 44. Later that day, plaintiff contacted the New York State Office of Court Administration to complain about the tone and nature of Town Justice Lomenzo's voicemail. Id. ¶ 45. He was referred to the agency's Rochester, New York office, which in plaintiff's view “did nothing to resolve the matter amicably.” Id.

On November 19, 2015, plaintiff wrote a letter to Town Justice Lomenzo in which he “ rightly criticiz[ed] what he viewed as Lomenzo's “disturbing conduct.” Compl. ¶¶ 46-47. Thereafter, Lomenzo responded in writing that plaintiff must apologize to him and his clerks before the court would further consider his outstanding records requests. Id. ¶ 47.

On December 8, 2015, plaintiff contacted the transcriber and learned that the Penfield Town Court had not provided her with the tapes; instead, the transcriber told plaintiff that the Town Court employees had “told her that the tapes do not exist.” Compl. ¶ 49.

In January of 2016, plaintiff filed a civil lawsuit in federal court to vindicate what he perceived to be...

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