Gilmore v. Fitzmaurice ( 2021 )

19-2348-pr
Gilmore v. Fitzmaurice, 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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 28th day of January, two thousand twenty-one.
PRESENT: JOSÉ A. CABRANES,
GERARD E. LYNCH,
Circuit Judges,
VICTOR MARRERO,
Judge. *
FURMAN GILMORE,
Plaintiff-Appellee, 19-2348-pr
v.
WILLIAM FITZMAURICE, NEW YORK STATE POLICE INVESTIGATOR,
GREGORY OVERHOLT, NEW YORK STATE POLICE INVESTIGATOR,
DANIEL T. MITCHELL, NEW YORK STATE POLICE INVESTIGATOR,
Defendants-Appellants,
LANCE CROSSETT, PAROLE OFFICER, BRIAN MCMANNIS, CORRECTION
OFFICER, GREENE COUNTY JAIL, DONNA JULIANO, NURSE, GREEN
COUNTY JAIL, WALTER HUBICKI, DOCTOR, GREEN COUNTY JAIL,
AMY VANALSYTNE, NURSE, COLUMBIA COUNTY JAIL, CHARLES
Judge Victor Marrero, of the United States District Court for the Southern District of New York, sitting
*
by designation.
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JOHNSON, DOCTOR, COLUMBIA COUNTY JAIL.
Defendants.
FOR PLAINTIFF-APPELLEE: Furman Gilmore, pro se, Rome, NY.
FOR DEFENDANTS-APPELLANTS: Barbara D. Underwood, Solicitor General,
Jeffrey W. Lang, Deputy Solicitor General,
and Jonathan D. Hitsous, Assistant
Solicitor General, for Letitia James,
Attorney General, State of New York,
Albany, NY.
Appeal from a June 26, 2019 judgment of the United States District Court for the Northern
District of New York (David N. Hurd, Judge).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
AFFIRMED.
Plaintiff-Appellee Furman Gilmore (“Gilmore”), who is proceeding pro se in this appeal, filed
suit against various law enforcement officers and healthcare professionals (together, “Defendants”)
pursuant to 42 U.S.C. § 1983, principally alleging he was assaulted while in the custody of New York
State Police and subsequently denied medical treatment. The District Court scheduled trial and
appointed an attorney for Gilmore. After a two-day trial, the jury returned a verdict in favor of
Defendants on June 26, 2019. That same day, the District Court dismissed Gilmore’s complaint and
entered judgment. Gilmore timely appealed.
On appeal Gilmore challenges the District Court’s denial of his two motions to proceed pro
se, arguing that it abused its discretion. A civil litigant in federal court has a right to act as his or her
own counsel. 1 “The statutory right to proceed pro se reflects a respect for the choice of an individual
citizen to plead his or her own cause.” 2 But that right is not without some qualifications. We have
1 See 28 U.S.C. § 1654 (“In all courts of the United States the parties may plead and conduct their
own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and
conduct causes therein.”); see generally O’Reilly v. New York Times Co., 692 F.2d 863, 867–70 (2d Cir. 1982)
(discussing statutory right to self-representation in civil cases).
2 Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990) (citing O’Reilly, 692 F.2d
at 867 & n. 5.
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explained that “the right to self-representation must be timely asserted, preferably before trial.” 3
Second, “a party seeking to assert his statutory right to self-representation must clearly and
unequivocally discharge any lawyer previously retained.” 4 We have explained that an untimely
motion to proceed pro se is “committed to the discretion of the trial court, which may consider,
among other factors, the reason for the request, the quality of the counsel representing the moving
party, the party’s prior proclivity to substitute counsel, and the potential disruption to the
proceedings.” 5 We review a district court’s denial of a litigant’s untimely motion to proceed pro se for
abuse of discretion. 6
Gilmore made two motions to proceed pro se. In his first motion, made on June 12, 2019,
approximately two weeks before the trial, Gilmore explained that he and his attorney disagreed
about calling a particular doctor as an expert witness, and the District Court denied the motion by
docket order.
We conclude that Gilmore did not “clearly and unequivocally discharge” his attorney in that
first motion, as is required to assert one’s statutory right to proceed pro se. Indeed, the only reason
Gilmore provided in his letter motion to proceed pro se was that he disagreed with his attorney about
calling a particular doctor as a medical expert. And that dispute was resolved the next day, when
Gilmore’s attorney moved, successfully, to subpoena the doctor that Gilmore wanted. Furthermore,
Gilmore’s motion implied that, if Gilmore’s attorney agreed to call the doctor in question as an
expert witness, Gilmore would agree to his attorney’s continued representation. Because Gilmore
did not “clearly and unequivocally discharge” his attorney—and because the dispute Gilmore
identified was apparently resolved by his attorney filing a request to issue a subpoena the following
day—Gilmore’s first motion did not suffice to assert his statutory right to self-representation. 7
3 Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998); see also O’Reilly, 692 F.2d at 868 (describing a
motion to proceed pro se by a civil litigant made “well before trial” as being asserted “in [a] timely fashion”).
4 Iannaccone, 142 F.3d at 558; Williams v. Bartlett, 44 F.3d 95, 100 (2d Cir. 1994) (in the criminal
context, “[t]he right to self-representation does not attach until it is asserted ‘clearly and unequivocally.’”)
(quoting Faretta v. California, 422 U.S. 806, 835 (1975)). Furthermore, a party does not have a right to self-
representation and representation by counsel at the same time. See O’Reilly, 692 F.2d at 867-68.
5 Id.; United States v. Walker, 142 F.3d 103, 108 (2d Cir. 1998) (“On appeal, considerable weight will be
given to the district court’s assessment of this balance.”).
6 See O’Reilly, 692 F.2d at 867–68; United States v. Brown, 744 F.2d 905, 908 (2d Cir. 1984) (reviewing
the district court’s denial of criminal appellant’s mid-trial request to proceed pro se and finding that “‘[the
district court] acted well within [its] discretion’ in denying the request”); see also, e.g., Barclay v. New York, 602 F.
App’x 7, 12 (2d Cir. 2015) (non-published summary order) (affirming district court’s order where civil
plaintiff “waited until trial had already commenced to make his request for new counsel, and, when the court,
in its discretion, denied his request, he proceeded with the lawyer he had”).
7 See Tuduj v. Newbold, 958 F.3d 576, 579 (7th Cir. 2020) (per curiam) (applying O’Reilly and concluding
that district court did not err in denying pretrial motion to proceed pro se made in conditional terms).
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Gilmore made his second motion to proceed pro se, which the District Court also denied, on
the day that his trial was scheduled to begin. Indeed, the minute entry on the District Court docket
reflects that Gilmore’s motion was made after the jury was sworn in. It thus appears from the record
before us that Gilmore made his second motion after trial commenced, which would render it
untimely. 8 Gilmore maintains, however, that he made the motion before jury selection.
Our ability to review Gilmore’s challenge to the denial of his second motion to proceed pro
se is precluded by his failure to provide a transcript of the proceeding, despite several notices from
this Court of his obligation as an appellant to do so. 9 While it is not mandatory to dismiss an appeal
for failure to obtain a trial transcript, 10 it is our practice to do so where the failure to provide the
relevant transcripts “deprives this Court of the ability to conduct meaningful appellate review.” 11 On
this record, we are unable to consider the timeliness of Gilmore’s second motion to proceed pro se.
Furthermore, even were we to credit Gilmore’s assertion that he timely made the motion prior to
jury selection, it would still be impossible for us to review the District Court’s reasons for denying
8 O’Reilly, 692 F.2d at 867-68; Walker, 142 F.3d at 108–09 (defendant’s motion to proceed pro se must
be made before commencement of trial proceedings, and motion made at the end of voir dire was untimely);
United States v. Stevens, 83 F.3d 60, 66-67 (2d Cir. 1996) (holding that a defendant’s motion made “just after the
start of jury selection” was a motion “made after the start of trial”).
9 It is the appellant’s duty to “order from the reporter a transcript of such parts of the proceedings
not already on file as the appellant considers necessary [or] file a certificate stating that no transcript will be
ordered.” Fed. R. App. P. 10(b)(1); see also Fed. R. App. P. 10(b)(2).
In a December 2019 order denying Gilmore’s motion for reversal of judgment, this Court noted that
the motion raised issues concerning Gilmore’s jury trial, and that it was his duty to order a transcript of the
proceedings or file a certificate stating that no transcript would be ordered.
In a February 2020 order, the Court noted that it had previously advised Gilmore of the options
pertaining to transcripts and observed that Gilmore failed to submit any documents in response. Accordingly,
this Court explained that Gilmore’s appeal would be dismissed by February 26, 2020 unless Gilmore: (1) filed
a motion in the District Court for free transcripts and submitted a letter with proof to this Court that he
ordered the transcripts; or (2) filed a letter in which he certified he did not need transcripts to proceed with
his appeal and listed the issues he planned to challenge on appeal that did not require a transcript. On
February 25, 2020, Gilmore filed a letter certifying that he would not be requesting transcripts.
In September 2020, Gilmore filed a copy of a letter he had sent the District Court requesting the trial
transcripts. In the letter, Gilmore asserted that the issue he raised on appeal was that the District Court
abused its discretion by denying his motions to proceed pro se, both before trial and on June 26, 2019 prior to
jury selection. He stated that “[t]he transcript is needed for meaningful appeal review.” Doc. 75 at 2. In
response, the court reporter stated that “[t]he transcripts without jury selection total $766.50 and the
transcripts with jury selection total $949.00.” Gilmore v. Crossett et al, No. 16-cv-1300, Dkt. 72 (N.D.N.Y, Sept.
18, 2020). She directed him to send a money order for her to produce the transcripts to him. Id. Nothing
further is indicated on the District Court docket.
10 See Savard v. Marine Contracting Inc., 471 F.2d 536, 543 (2d Cir. 1972).
11 See Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000) (per curiam) (dismissing with prejudice the
portion of an appeal challenging certain post-trial findings and conclusions “because the [pro se] plaintiff failed
to provide this Court with the trial transcripts needed to conduct meaningful appellate review, despite two
extensions of time and advice from this Court to move in the district court for trial transcripts”).
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the motion. Without a transcript it is unclear whether Gilmore’s second motion was merely a
renewal of his first motion to proceed pro se or whether it was based on new and independent
reasons, let alone whether Gilmore had “clearly and unequivocally discharge[d]” his attorney in his
second motion. 12 Nor can we determine, let alone assess, the District Court’s reason for denying
Gilmore’s second motion.
We accordingly dismiss Gilmore’s appeal insofar as he challenges the District Court’s denial
of his second motion to proceed pro se. Because Gilmore has failed to provide the trial transcripts
needed for us to conduct meaningful appellate review, despite being advised on multiple occasions
by this Court about his responsibility to obtain the transcript, dismissal with prejudice is warranted. 13
CONCLUSION
We have reviewed all the arguments raised by Gilmore on appeal and find them to be
without merit. We AFFIRM the June 26, 2019 judgment of the District Court to the extent that
Gilmore challenges it on the basis of his first motion to proceed pro se. Insofar as Gilmore appeals
the District Court’s judgment dated June 26, 2019 on the basis of its denial of his second motion to
proceed pro se, we DISMISS his appeal with prejudice.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
12 O’Reilly, 692 F.2d at 867–68.
13 See Wrighten, 232 F.3d at 120.
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