McCrary v. Marks ( 2021 )

19-3477
McCrary v. Marks
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 TO 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 12th day of February, two thousand twenty-one.
PRESENT:
JOHN M. WALKER, JR.,
ROBERT D. SACK,
RICHARD J. SULLIVAN,
Circuit Judges.
_____________________________________
JC McCrary,
Plaintiff-Appellant,
v. 19-3477
John G. Marks, Individually and in his
official capacity, David Rich, Individually
and in his official capacity,
Defendants-Appellees.
_____________________________________
FOR PLAINTIFF-APPELLANT: JC McCrary, pro se, Napanoch, NY.
FOR DEFENDANTS-APPELLEES: Jackie L. Gross, Deputy County Attorney, for
Jared Kasschau, Nassau County Attorney,
Nassau County Attorney’s Office, Mineola,
NY.
Appeal from a judgment of the United States District Court for the Eastern District of New
York (Kiyo A. Matsumoto, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
JC McCrary, pro se and incarcerated, appeals the district court’s judgment dismissing his
civil rights action under 42 U.S.C. § 1983. McCrary claimed that John Marks, the executive
director of the Nassau County Traffic and Parking Violations Agency (“TPVA”), violated his First
Amendment rights by refusing to mail him another person’s traffic records. The district court
granted Marks’s motion to dismiss, concluding that McCrary had not stated a claim. We assume
the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal.
This Court “review[s] the grant of a motion to dismiss de novo, accepting as true all factual
claims in the complaint and drawing all reasonable inferences in the plaintiff’s favor.” Fink v.
Time Warner Cable, 714 F.3d 739, 740–41 (2d Cir. 2013). In doing so, “[w]e may affirm on any
ground that finds support in the record.” Dettelis v. Sharbaugh, 919 F.3d 161, 163 (2d Cir. 2019).
The First Amendment and the common law both “protect[] the public’s right to have access
to judicial documents.” United States v. Erie County, 763 F.3d 235, 239 (2d Cir. 2014); see also
Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132, 141–42 (2d Cir. 2016).
This right of access affords the public “a general right to inspect and copy public records and
documents.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978).
Here, we agree with the district court that McCrary failed to plausibly allege that he actually
requested the records from the TVPA. After receiving McCrary’s letter, the TVPA sent McCrary
a form to which he did not respond. Having failed to complete and return that form, McCrary has
not alleged that he was denied the documents he seeks; at most, he merely speculates that
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completing the form would have been futile. McCrary has therefore failed to allege a plausible
denial of access claim for the simple reason that he has not alleged the most basic element of such
a claim: that he was denied access to the documents he seeks. See Sheppard v. Beerman, 18
F.3d 147, 151–52 (2d Cir. 1994) (explaining that even if the allegations in the complaint are true,
“they do not indicate that [the plaintiff] was denied a right of access to criminal proceedings”
because, among other things, the plaintiff “admits that he was allowed to examine files outside of
[the] courtroom”); see also Collins v. Miller, 338 F. App’x 34, 36 (2d Cir. 2009) (noting that the
plaintiff “failed to state a First Amendment denial of access claim . . . because he d[id] not allege
that he ever sought the desired documents and information from the Criminal Court, let alone that
the court denied him access”); Collins v. City of New York, 336 F. App’x 9, 11 (2d Cir. 2009)
(similar).
We further conclude that McCrary failed to allege Marks’s personal involvement. See
Tangreti v. Bachmann, 983 F.3d 609, 618–19 (2d Cir. 2020) (explaining the standard for
supervisory liability). Drawing all inferences in McCrary’s favor, the most he has alleged is that
Marks received his letter and directed someone at the TVPA to respond to it. That is clearly not
enough to state a claim against Marks. See id.We have considered all of McCrary’s remaining arguments and find them to be meritless.
Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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