08-4702-pr
Montanez v. Cuoco, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 22 nd day of January, two thousand ten.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 ROBERT D. SACK,
9 PETER W. HALL,
10 Circuit Judges.
11
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13 FELIX MONTANEZ,
14
15 Plaintiff-Appellant,
16
17 -v.- 08-4702-pr
18
19 CORRECTIONAL OFFICER CUOCO and
20 LIEUTENANT FISHER,
21
22 Defendants-Appellees.
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24
25 APPEARING FOR APPELLANT: Felix Montanez, pro se,
26 Suffield, CT.
27
1
1 APPEARING FOR APPELLEES: Lynn D. Wittenbrink, Assistant
2 Attorney General, for Richard
3 Blumenthal, Attorney General of
4 the State of Connecticut.
5
6 Appeal from a judgment of the United States District
7 Court for the District of Connecticut (Kravitz, J.).
8
9 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
10 AND DECREED that the judgment of the district court be
11 AFFIRMED in part, VACATED in part, and REMANDED for further
12 proceedings consistent with this order.
13
14 Plaintiff-appellant Felix Montanez appeals from a
15 judgment of the United States District Court for the
16 District of Connecticut (Kravitz, J.) , which dismissed the
17 complaint pursuant primarily to Federal Rule of Civil
18 Procedure 12(b)(6). The complaint alleged, inter alia, that
19 prison officials denied Montanez access to the courts. We
20 assume the parties’ familiarity with the underlying facts,
21 the procedural history, and the issues presented for review.
22
23 The judgment from which Montanez appeals relied on a
24 July 28, 2008 order, which, inter alia, permitted Montanez
25 to “file a motion to reconsider (along with an Amended
26 Complaint)” by August 19, 2008 in order to (i) state a
27 retaliation claim, (ii) address any misconstructions of his
28 complaint by the district court, and (iii) provide any
29 information that would render viable his right-of-access
30 claim. Montanez failed to do so. Although Montanez moved
31 for and received an extension of time to file a notice of
32 appeal, there was no extension of the August 19, 2008
33 deadline for filing a motion to reconsider and an amended
34 complaint. Nevertheless, on September 19, 2008, Montanez
35 filed such documents along with his timely notice of appeal.
36 Because the notice of appeal ousted the district court of
37 jurisdiction, the court denied (without prejudice)
38 Montanez’s motions for reconsideration and to file an
39 amended complaint. Montanez did not appeal that ruling.
40 Accordingly, the new facts which Montanez sought to raise in
41 his amended complaint and raised in his appellate briefing
42 were never properly presented to the district court.
43
44 We will not consider those new facts here. “[I]ssues
45 raised for the first time on appeal will not be considered
46 unless consideration of the issue is necessary to avoid
2
1 manifest injustice or the issue is purely legal and requires
2 no additional fact-finding.” Duamutef v. O’Keefe, 98 F.3d
3 22, 25 (2d Cir. 1996); see also Leibowitz v. Cornell Univ.,
4 445 F.3d 586, 592 n.4 (2d Cir. 2006) (per curiam).
5 Montanez’s presentation of new facts suggests that the issue
6 is not purely legal. Moreover, we see no manifest injustice
7 given the district court’s explicit invitation for Montanez
8 to file a motion for reconsideration and an amended
9 complaint.
10
11 However, it appears likely that Montanez conflated the
12 two deadlines for filing the notice of appeal and the
13 amended complaint. In light of the leniency accorded to pro
14 se litigants, we hereby vacate and remand to the district
15 court to consider in the first instance whether it would be
16 appropriate to permit Montanez to now file an amended
17 complaint. Cf. Pabon v. Wright, 459 F.3d 241, 248 (2d Cir.
18 2006) (“We construe complaints filed by pro se litigants
19 liberally and interpret them to raise the strongest
20 arguments that they suggest.” (internal quotation marks and
21 citation omitted)). In particular, we focus on Montanez’s
22 attempt to plead a right-of-access claim and a retaliation
23 claim.
24
25 The district court concluded that Montanez failed to
26 state a right-of-access claim for two reasons. First, the
27 original complaint alleged only that unspecified “legal
28 papers” were confiscated; and he thus failed to plead that
29 “he was engaged in litigation to which the right of access
30 to courts extends.” The district court relied on
31 Lewis v. Casey, 518 U.S. 343 (1996), and Friedl v. City of
32 New York, 210 F.3d 79 (2d Cir. 2000), for the proposition
33 that inmates have a right of access to the courts that is
34 limited to “direct appeals from their convictions, petitions
35 for writ of habeas corpus and actions challenging the
36 conditions of their confinement.” In the context of the
37 state’s affirmative obligation to provide resources (such as
38 a prison law library or legal assistance program) and
39 thereby incur expenses, these cases support such a
40 limitation. See Lewis, 518 U.S. at 355 (evaluating the
41 adequacy of prison law library facilities and legal
42 assistance programs, the right of access to the courts
43 requires states to provide “[t]he tools . . . that the
44 inmates need in order to attack their sentences, directly or
45 collaterally, and in order to challenge the conditions of
46 their confinement”); Friedl, 210 F.3d at 86-87 (relying on
47 Lewis to permit “an administrative challenge by a prisoner
3
1 to the conditions of his confinement”); see also Monsky v.
2 Moraghan, 127 F.3d 243, 246 (2d Cir. 1997) (“[T]he right of
3 access may include affording prisoners who are preparing
4 legal papers adequate law libraries or adequate assistance
5 from persons trained in the law, at least for those
6 challenging their sentences or the conditions of
7 confinement.” (internal quotation marks and citations
8 omitted)).
9
10 However, there is at least a question as to whether an
11 inmate’s right of access to the courts is so confined in the
12 context of interference--as in this case, where a prison
13 guard allegedly confiscated an inmate’s legal documents.
14 See, e.g., Bourdon v. Loughren, 386 F.3d 88, 93 & n.8 (2d
15 Cir. 2004) (recognizing that the right of access to the
16 courts “ensur[es] that all citizens have the right to sue
17 and defend in the courts,” and that for prisoners “defending
18 against criminal charges, challenging convictions and
19 sentences, and raising civil rights claims about the
20 conditions of their confinement,” the right-of-access has a
21 “particular application” which additionally requires the
22 provision of the necessary “tools” (internal quotation
23 marks, citations, and brackets omitted)); Morello v. James,
24 810 F.2d 344, 347 (2d Cir. 1987) (discussing the state’s
25 “obligation [to] provid[e] a prisoner access to the legal
26 resources necessary to prepare” an appeal of his criminal
27 convictions, and the state’s separate obligation not to
28 deprive a prisoner of his legal papers (regardless of the
29 subject of the litigation) because such “intentional
30 obstruction of a prisoner’s access to the courts is
31 precisely the sort of oppression that the Fourteenth
32 Amendment and section 1983 are intended to remedy”); id. at
33 346-47 (“The right of access to the courts is substantive
34 rather than procedural. Its exercise can be shaped and
35 guided by the state, but cannot be obstructed, regardless of
36 the procedural means applied.” (internal citations
37 omitted)); Michael B. Mushlin, Rights of Prisoners § 12.6
38 (3d ed. 2002) (“Even though these courts do not recognize a
39 right to state-sponsored assistance of access for civil
40 matters not connected with conditions of confinement, this
41 does not mean that prison officials may obstruct inmates
42 from bringing such claims or retaliate against them if they
43 do.”). Given this question, the district court may seek to
44 assign pro bono counsel to represent Montanez on remand.
45
46 Second, the district court determined that Montanez did
47 not allege actual injury. “In order to establish a
4
1 violation of a right of access to courts, a plaintiff must
2 demonstrate that a defendant caused actual injury, i.e.,
3 took or was responsible for actions that hindered a
4 plaintiff’s efforts to pursue a legal claim.” Monsky, 127
5 F.3d at 247 (internal quotation marks, citations, and
6 brackets omitted). The original complaint alleged only that
7 unspecified “legal papers” were confiscated. Montanez
8 alleged in his appellate briefing that the confiscated legal
9 documents “include[], but were not limited to, exhibits,
10 proofs, pleadings in the development, applications,
11 administrative remedies (and their responses), personal and
12 confidential information pertaining to a medical malpractice
13 action, visitation rights[] action, and matters relating to
14 the benefit and well-being of Plaintiff’s three (3) children
15 in [Department of Children and Families] custody.” Montanez
16 further alleges that some of the allegedly confiscated
17 documents were the “only copies of supporting evidentiary
18 exhibits.” He explained that the alleged confiscation
19 “caused him to lose standing . . . because [he] was unable
20 to meet filing time requirements as mandated by statutory
21 civil procedure,” he “could not pursue matters in
22 litigation,” and “his actions were dismissed.” We do not
23 decide whether these new facts plead actual injury. If the
24 district court allows Montanez to file an amended complaint,
25 it should evaluate whether these new facts (and any other
26 facts that Montanez may add) sufficiently allege that
27 defendants-appellants’ actions hindered Montanez’s efforts
28 to pursue a legal claim.
29
30 In his appellate briefing, Montanez seeks to raise a
31 retaliation claim. If the district court allows Montanez to
32 file an amended complaint, it should evaluate whether
33 Montanez sufficiently pleads a retaliation claim.
34
35 Following de novo review of the record of the
36 proceedings before the district court and Montanez’s
37 contentions on appeal, we find no merit in Montanez’s
38 remaining arguments and affirm all other aspects of the
39 district court’s decision. We hereby AFFIRM in part, VACATE
40 in part, and REMAND for further proceedings consistent with
41 this order.
42
43 FOR THE COURT:
44 CATHERINE O’HAGAN WOLFE, CLERK
45
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