Shechter v. Comptroller of City of New York

• Decision Date: 21 March 1996
• Docket Number: D,No. 157,157
• Citation: 79 F.3d 265
• Parties: Stanley SHECHTER, Plaintiff-Appellee, v. COMPTROLLER OF the CITY OF NEW YORK, Corporation Counsel of the City of New York, Court of Appeals of the State of New York, George Vasquez, John Doe, Howard L. Lapidus, Michael G.T. Brookes, Peter L. Zimroth, Peter B. Panes, Queensborough Community College, Kurt R. Schmeller, Sandra Seltzer, City University of New York and John H. Snyder, Defendants, Antonia Levine, Gerald Maslon and Chana Schwartz, Defendants-Appellants. ocket 95-7226.
• Court: U.S. Court of Appeals — Second Circuit

Page 265

79 F.3d 265

Stanley SHECHTER, Plaintiff-Appellee, v. COMPTROLLER OF the CITY OF NEW YORK, Corporation Counsel of the City of New York, Court of Appeals of the State of New York, George Vasquez, John Doe, Howard L. Lapidus, Michael G.T. Brookes, Peter L. Zimroth, Peter B. Panes Queensborough Community College, Kurt R. Schmeller, Sandra Seltzer, City University of New York and John H. Snyder, Defendants Antonia Levine, Gerald Maslon and Chana Schwartz Defendants-Appellants.

No. 157, Docket 95-7226.

United States Court of Appeals Second Circuit.

Argued Oct. 18, 1995.

Decided March 21, 1996.

Stanley Shechter, New York City, pro se, Plaintiff-Appellee.

Cheryl Payer, Assistant Corporation Counsel of the City of New York, New York City (Paul A. Crotty, Corporation Counsel, Stephen J. McGrath, and Alan Schlesinger, Assistant Corporation Counsel, New York City, of counsel), for Defendants-Appellants.

Before: MESKILL, MAHONEY, and WALKER, Circuit Judges.

MAHONEY, Circuit Judge:

Defendants-appellants Antonia Levine, Gerald Maslon, and Chana Schwartz appeal from an order entered February 7, 1995 in the United States District Court for the Southern District of New York, David N. Edelstein, Judge, that denied their motion for judgment on the pleadings on the basis of qualified immunity.

Affirmed.

Background

The facts, as alleged in plaintiff-appellee Stanley Shechter's complaint and accepted as true on this motion for judgment on the pleadings, are as follows. On August 25, 1983, Shechter was offered a full-time position as an assistant professor at Queensborough Community College ("QCC"), a subdivision of the City University of New York ("CUNY"). Shechter accepted this offer, and began preparing to teach several courses in the upcoming semester.

On September 16, 1983, defendant Paul B. Panes, the chairman of QCC's Department of Basic Educational Skills, called Shechter on behalf of QCC and its president, defendant Kurt R. Schmeller, and rescinded QCC's offer of employment. In response, Shechter served a notice of claim upon CUNY and its attorney, the Corporation Counsel of the City of New York (the "Corporation Counsel"), on November 15, 1983.

In December 1983, Shechter attempted to obtain a copy of his filed notice of claim in order to prepare a complaint against QCC and CUNY. He visited the offices of the Corporation Counsel, the Comptroller of the City of New York (the "Comptroller"), and defendant-appellant Gerald Maslon, an attorney in the Office of Legal Affairs at CUNY. None of the people he spoke with in these offices was able to locate his file. Despite repeated visits and telephone calls to these offices, Shechter was unable to obtain a copy of his filed notice of claim.

As a result of the loss of the notice of claim, defendants-appellants Chana Schwartz, an attorney employed by the Comptroller, and Antonia Levine, an attorney employed by the Corporation Counsel, both advised Shechter to file another notice of claim and then wait for thirty days before initiating a proceeding pursuant to Article 78 of the New York Civil Practice Law and Rules. In reliance upon this advice, Shechter filed a second notice of claim on January 12, 1984, and thereafter delayed initiating an Article 78 proceeding in accordance with the attorneys' advice.

In fact, no notice of claim is necessary in order to bring an Article 78 proceeding. See In re Caggiano, 78 Misc.2d 187, 189-90, 342 N.Y.S.2d 203, 206 (Sup.Ct.1973) ("[L]ack of service of any notice of claim ... is not determinative since no such notice is required before bringing an Article 78 proceeding.") (citing Accredited Demolition Constr. Corp. v. City of Yonkers, 37 A.D.2d 708, 324 N.Y.S.2d 377 (2d Dep't 1971) (mem.)), aff'd sub nom Caggiano v. Frank, 44 A.D.2d 828, 355 N.Y.S.2d 170 (2d Dep't 1974) (mem). Moreover, as a result of the additional time that elapsed due to Shechter's refiling of the notice of claim and subsequently delaying the commencement of litigation, Shechter failed to initiate his Article 78 proceeding within the applicable four-month statute of limitations. See N.Y.Civ.Prac.L. & R. § 217.

Accordingly, on May 8, 1984, the New York Supreme Court dismissed Shechter's Article 78 petition as time-barred, and the Appellate Division affirmed this ruling on May 23, 1985. See Schechter v. Queensborough Community College, 111 A.D.2d 602, 489 N.Y.S.2d 970 (1st Dep't 1985) (table). The New York Court of Appeals denied Shechter's motion for leave to appeal on November 21, 1985. See Schechter v. Queensborough Community College, 66 N.Y.2d 604, 489 N.E.2d 769, 498 N.Y.S.2d 1024 (1985) (table).

On July 17, 1987, Shechter initiated the present action pursuant to 42 U.S.C. §§ 1983, 1985, and 1988, seeking reinstatement to his position at QCC, back pay, damages, and a declaratory judgment that the Article 78 proceeding was void. The defendants moved to dismiss the complaint in September 1987 on statute of limitations grounds or, in the alternative, because Shechter's claim failed to state a cause of action. Judge Edelstein referred the motion to Magistrate Judge Leonard Bernikow.

Magistrate Judge Bernikow issued a report and recommendation which proposed that the motion be granted as to all defendants except Maslon, Schwartz, and Levine. The report and recommendation construed Shechter's complaint against these three remaining defendants to allege that the provision of erroneous legal advice had deprived Shechter of his right of access to the courts. Judge Edelstein adopted Magistrate Judge Bernikow's recommendation, but remanded the matter to Magistrate Judge Bernikow as to Maslon, Schwartz, and Levine for consideration of their claims of absolute immunity. Magistrate Judge Bernikow issued a second report and recommendation that proposed rejection of the absolute immunity claim. Judge Edelstein adopted this report and recommendation in its entirety on September 17, 1991.

Having previously answered Shechter's amended complaint, defendants-appellants then moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) on the ground of qualified immunity. ¹ On March 30, 1993, Magistrate Judge Bernikow issued a report and recommendation which proposed that the motion be denied. See Shechter v. Queensborough Community College, No. 87 Civ. 5110(DNE), slip op. (S.D.N.Y. Mar. 30, 1993) ("Shechter I "). Judge Edelstein adopted this conclusion in a memorandum and order dated February 6, 1995. Shechter v. Queensborough Community College, No. 87 Civ. 5110(DNE), slip op., 1995 WL 46668 (S.D.N.Y. Feb. 6, 1995) ("Shechter II "). Both Magistrate Judge Bernikow and Judge Edelstein concluded that defendants-appellants were not entitled to qualified immunity both because the conduct complained of was outside of the scope of their duties, and because the conduct violated Shechter's clearly established right of access to the courts. Shechter I, slip op. at 8-17; Shechter II, slip op. at 3-5.

This appeal followed.

Discussion

The doctrine of qualified immunity "shields government officials from liability for damages on account of their performance of discretionary official functions 'insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' " Rodriguez v. Phillips, 66 F.3d 470, 475 (2d Cir.1995) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). In order to sustain a qualified immunity defense, a public official must demonstrate that two conditions are satisfied.

First, the defendant must show that the conduct of which the plaintiff complains falls within the scope of the defendant's official duties. See Butz v. Economou, 438 U.S. 478, 495, 98 S.Ct. 2894, 2905, 57 L.Ed.2d 895 (1978) (doctrine does not "abolish the liability of federal officers for actions manifestly beyond their line of duty"); Jones v. Clinton, 72 F.3d 1354, 1358 (8th Cir.1996) ("We are unaware ... of any case in which any public official ever has been granted any immunity from suit for his unofficial acts...."); Rich v. Dollar, 841 F.2d 1558, 1563 (11th Cir.1988) ("The defendant public official must first prove that 'he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred.' " (quoting Zeigler v. Jackson, 716 F.2d 847, 849 (11th Cir.1983) (per curiam))). Second, the defendant must demonstrate that his alleged conduct did not violate one of the plaintiff's clearly established statutory or constitutional rights. See Young v. Selsky, 41 F.3d 47, 54 (2d Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1837, 131 L.Ed.2d 756 (1995). But cf. Rich, 841 F.2d at 1564 ("Once the defendant public official satisfies his burden of moving forward with the evidence, the burden shifts to the plaintiff to show lack of good faith on the defendant's part. This burden is met by proof demonstrating that the defendant public official's actions 'violated clearly established constitutional law.' " (quoting Zeigler, 716 F.2d at 849)). If both of these conditions are satisfied, the defendant is entitled to qualified immunity. Judge Edelstein, adopting the recommendations of Magistrate Judge Bernikow, concluded that neither of these requirements was satisfied by defendants-appellants in this case.

With respect to the first inquiry, Magistrate Judge Bernikow reasoned that because the specific act of giving legal advice to a pro se litigant was not within defendants-appellants' authorized duties, such conduct stripped them of qualified immunity. Shechter I, slip op. at 9. Judge Edelstein endorsed this reasoning, adding that the defendants-appellants' "alleged actions--withholding legal documents and giving false or misleading legal advice to an unrepresented adversary--did not fall within the scope of their discretionary functions." Shechter II, slip op. at 3.

We disagree with the district court's analysis of this issue. The approach...