Wilson v. Denise Richards & S. Dist. Reporters, P.C.
| Decision Date | 25 November 2014 |
| Docket Number | 14-cv-6262 (AJN),14-cv-2459 (AJN) |
| Parties | Zomara Wilson, Plaintiff, v. Denise Richards and Southern District Reporters, P.C., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Plaintiff Zomara Wilson brings this action pro se against a court reporter, Denise Richards, and the reporter's employer, Southern District Reporters, P.C. Plaintiff alleges that Defendants violated her due process rights by not preparing an accurate transcript of a May 2, 2011 hearing before Magistrate Judge Gorenstein wherein Plaintiff pleaded guilty to one misdemeanor count of aiding and abetting financial fraud. She claims the inaccuracies impeded her ability to subsequently withdraw her guilty plea. Plaintiff asks the Court to (1) dismiss her guilty plea reflected in the transcript at issue; (2) vacate her conviction or overturn Judge Gorenstein's ruling that she could not withdraw her guilty plea; (3) reopen her criminal case for the purpose of dismissing it with prejudice; and (4) award her $750,000 in damages.
Plaintiff has previously filed substantially the same suit, which the Court dismissed sua sponte for failure to state a claim on which relief could be granted. See Wilson v. Richards, No. 14-cv-2459 (AJN) (S.D.N.Y. June 18, 2014). The order of dismissal did not state whether the dismissal was with or without prejudice, but because the case was dismissed without prior notice to Plaintiff, that prior order should be viewed as dismissing the case without prejudice. The Court will therefore construe the most recent complaint as being accompanied by an implicit motion to reopen or reconsider, along with a motion for leave to amend the complaint.Considered as such, both of those motions are granted. For the following reasons, the amended complaint is DISMISSED.
When a plaintiff proceeds in forma pauperis, the district court "shall dismiss the case at any time" if it determines, among other things, that the complaint fails to state a claim on which relief can be granted. 28 U.S.C. § 1915(e)(2)(B)(ii); see, e.g., Sykes v. Bank of America, 723 F.3d 399, 403 (2d Cir. 2013). Because Plaintiff is proceeding pro se, her submissions "must be construed liberally and interpreted 'to raise the strongest arguments that they suggest.'" Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (emphasis omitted) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)). Even with the benefit of liberal construction, the complaint must still "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While well-pleaded factual allegations must be accepted as true, "a plaintiff's obligation to provide the 'grounds' of his ' entitle [ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (alteration in original) (quoting Fed. R. Civ. P. 8(a)(2)). When evaluating whether a complaint has stated a claim on which relief can be granted, a court may consider "documents attached to the complaint as an exhibit or incorporated in it by reference, matters of which judicial notice may be taken, or documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit." Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (quotation marks and alterations omitted) (quoting Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993). In this case, that means that both prior orders from Plaintiff's criminal case and the transcript of her plea proceeding itself—to which the Plaintiff refers heavily and in detail, even if it were not judicially noticeable—may be considered by the Court.
As the Court explained in its prior order, Plaintiff's claim is based on a federal conviction and brought against federal officers, and therefore best understood as arising under Bivens v. SixUnknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Although the cause of action provided by Bivens for suits against federal officers is considerably narrower than that afforded to plaintiffs suing state officials under 42 U.S.C. § 1983, there is an implied cause of action and damages remedy under the due process clause of the Fifth Amendment. See Davis v. Passman, 442 U.S. 228, 244, 248 (1979). A criminal defendant possesses a due process right to a "substantially accurate" transcript in a criminal proceeding. Argenderi v. Majerowicz, 158 F. App'x 306, 307 (2d Cir. 2005) (summary order). More than an inaccurate transcript is necessary to state a claim, however: a Plaintiff must also show that the alleged inaccuracies "adversely affected the outcome" of her proceedings. Tedford v. Hepting, 990 F.2d 745, 748 (3d Cir. 1993); accord Argentieri, 158 F. App'x at 308 ().
Plaintiff's first complaint was dismissed because it did not contain sufficient factual allegations to plausibly show that the inaccuracies in her transcript adversely affected the outcome of her proceedings or caused her any tangible harm. See Wilson v. Richards, 14-cv-2459 (AJN), slip op. at 3 (S.D.N.Y. June 18, 2014). Her amended complaint, despite its additional factual allegations, suffers from the same deficiency. Plaintiff alleges four inaccuracies in the transcript of her guilty plea: 1) an inaccurate date on the first page; 2) an inaccurate time at which the proceeding commenced; 3) that it reflects she was placed under oath when the proceeding began, when she was not; and 4) that a portion of her allocution wherein she admitted the factual basis for her plea was fabricated in the transcript. She alleges that these inaccuracies tangibly harmed her by rendering her unable to later withdraw her guilty plea.
Plaintiff's first two allegations—that the date and time on the transcript were inaccurate—require little discussion. Such perfunctory portions of the transcript have no rational relationship to Plaintiff's ability to withdraw her guilty plea. Indeed, neither Judge Gorenstein nor the Second Circuit on appeal mentioned these matters when evaluating Plaintiff's motion towithdraw the plea. See United States v. Wilson, 09-cr-1086 (DAB) (GWG), Dkt. No. 48 (Dec. 1, 2011); United States v. Wilson, 523 F. App'x 30, 31 (2d Cir. 2013). Thus, even accepting these allegations as true, they provide no basis upon which a claim may be stated.
Plaintiff's third allegation is that the transcript inaccurately reflects her being placed under oath. She refers specifically to lines 9-14 on page 3, which reflect her being sworn in:
Plaintiff does not challenge the accuracy of the following lines, which read:
Accordingly, even taking Plaintiff's version of the hearing as true, she acknowledges that she understood the need to give truthful answers to the court's questions.
Plaintiff's allegations regarding the oath fail to state a claim for two reasons. First, Plaintiff's guilty plea would still be valid even if she had not been placed under oath. She does not contend that her statements inculpating herself were lies, and a district court is not required to place a defendant under oath before accepting a guilty plea. The Federal Rules of Criminal Procedure permit, but do not require, a court to place a defendant under oath before accepting a guilty plea. Fed. R. Crim. P. 11(b)(1) () (emphases added). It is not error to conduct a Rule 11 plea colloquy without placing a defendant under oath. See United States v. Asaifi, No. 04-401-02 (RMC), 2007WL 1322098, at *7 ; Hill v. West, No. 04-cv-6601CJS, 2009 WL 3491274, at *4 n.1 (W.D.N.Y. Oct. 23, 2009); United States v. Sanchez, 258 F. Supp. 2d 650, 663 n.14 (S.D. Tex. 2003); see also United States v. Journet, 544 F.2d 633, 637 n.6 (2d Cir. 1976) ().
Second, Plaintiff has already presented the claim that she was not placed under oath to Judge Gorenstein and to the Second Circuit in her direct appeal of her criminal conviction, and both found it without merit. When attempting to withdraw her plea, Plaintiff made no indication either that the statements she made at the plea colloquy were false or that they were not under oath. See United States v. Wilson, 09-cr-1086 (DAB) (GWG), Dkt. No. 43-1 (Sept. 16, 2011). Judge Gorenstein, considering Plaintiff's claim that the transcript was inaccurate after Plaintiff raised them to him in a post-judgment letter, explained that even if true the changes to the transcript "would not affect the validity of the guilty plea" and were not material. Id. at Dkt. No. 54 (Apr. 10, 2012). Meanwhile, Plaintiff defaulted on the claim that she was not put under oath in her appeal to the Second Circuit, even though she was fully aware of it by that time. Despite this, the circuit court explicitly noted that "the record reveals that Wilson was under oath when she pleaded guilty." See United States v. Wilson, 523 F. App'x 30, 31...
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