Kalican v. Dzurenda , 583 F. App'x 21 ( 2014 )

13-4011-cv
Kalican v. Dzurenda
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.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the
2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
3 21st day of November, two thousand fourteen.
4
5 PRESENT:
6 ROSEMARY S. POOLER,
7 RICHARD C. WESLEY,
8 RAYMOND J. LOHIER, JR.,
9 Circuit Judges.
10 _____________________________________
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12 Kurtulus K. Kalican,
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14 Plaintiff-Appellant,
15
16 v. 13-4011
17
18 James E. Dzurenda, et al.,
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20 Defendants-Appellees.
21 _____________________________________
22
23 FOR PLAINTIFF-APPELLANT: Kurtulus K. Kalican, pro se, Suffield, CT
24
25 FOR APPELLEES: No Appearance
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1 Appeal from a judgment and order of the United States District Court for the District of
2 Connecticut (Underhill, J.).
3
4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
5 DECREED that the judgment of the district court is AFFIRMED in part, VACATED in part,
6 and REMANDED for further proceedings consistent with this opinion. IT IS FURTHER
7 ORDERED that the order denying reconsideration is AFFIRMED in part and, in part,
8 DISMISSED as moot.
9
10 Appellant Kurtulus Kalican, proceeding pro se, appeals from the district court’s
11 February 26, 2013 judgment dismissing his civil rights complaints, and its August 6, 2013 order
12 denying reconsideration of the dismissal of those claims. We assume the parties’ familiarity
13 with the underlying facts, the procedural history of the case, and the issues on appeal.
14
15 We review a district court’s sua sponte dismissal of a complaint de novo. See McEachin
16 v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004). Pro se submissions are generally reviewed
17 with “special solicitude,” and we interpret them to raise the strongest claims suggested.
18 Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006). A district court should
19 not dismiss a pro se complaint without granting leave to amend unless doing so would be futile.
20 See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). We review a district court’s
21 determination that a claim is barred by the statute of limitations de novo and its decision not to
22 apply equitable tolling for abuse of discretion. A.Q.C. ex rel. Castillo v. United States, 656 F.3d
23 135, 140, 144 (2d Cir. 2011).
24
25 The district court properly ruled that Kalican’s due process claims failed as a matter of
26 law. In his first claim, Kalican alleged that, on August 26, 2009, Warden Alves wrongfully
27 denied his appeal from a prison grievance against correction officers for “conspiring against
28 him for no reason.” This allegation fails to state a claim. Grievance procedures, which are
29 creatures of state law, are not interests independently protected by the Constitution because the
30 failure to investigate a grievance does not increase a prisoner’s sentence or impose an “atypical
31 and significant hardship . . . in relation to the ordinary incidents of prison life.” Sandin v.
32 Conner, 515 U.S. 472, 483–84 (1995) (holding that Hawaii prison regulation did not afford
33 prisoner with a protected liberty interest); see also Geiger v. Jowers, 404 F.3d 371, 373–74 (5th
34 Cir. 2005) (applying Sandin and holding that prisoner did not have a due process right to have
35 his grievances investigated to his satisfaction). Further, the district court did not err by failing
36 to grant leave to amend because the claim would have failed even if artfully pleaded.
37
38 The district court also correctly ruled that Kalican’s stolen-property allegations failed to
39 state a claim. A prisoner cannot challenge the random and unauthorized deprivation of property
40 in a 42 U.S.C. § 1983 action if the State provides adequate postdeprivation process. Hudson v.
41 Palmer, 468 U.S. 517, 531–33 (1984). Connecticut provides a remedy for payment or refund of
42 stolen property. See Conn. Gen. Stat. § 4-141. Kalican does not argue that this procedure is
43 inadequate. Leave to amend would have been futile because Kalican does not seek to challenge
44 this review process as deficient in theory or in practice. See Port Dock & Stone Corp. v.
2
1 Oldcastle Ne., Inc., 507 F.3d 117, 127 (2d Cir. 2007) (denying remand to replead where
2 appellant failed to supply allegations that would have stated a claim). Accordingly, the district
3 court’s judgment is affirmed as to Kalican’s appeal from the dismissal of his due process claims
4 on the merits.
5
6 However, the district court erred in ruling that Kalican waited until July 2012 to file his
7 complaint. “A civil action is commenced by filing a complaint with the [district] court.” Fed.
8 Rawle Civ. P. 3. A complaint is deemed filed when the Clerk of Court receives it, see Rosenberg v.
9 Martin, 478 F.2d 520, 522 n.1a (2d Cir. 1973), or, in the case of a prisoner proceeding pro se,
10 when the complaint is given to prison officials to be mailed, see Dory v. Ryan, 999 F.2d 679,
11 682 (2d Cir. 1993). “The clerk must not refuse to file a paper solely because it is not in the
12 form prescribed by [the Federal Rules of Civil Procedure] or by a local rule or practice.” Fed.
13 Rawle Civ. P. 5(d)(4). We have held that “[t]he better course is for pro se submissions to be
14 docketed and filed so that they appear in the record of the case. If the submissions are deficient,
15 that matter can be addressed through an order or letter of the district court or the magistrate
16 judge.” Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 192 (2d Cir. 2008) (internal citation
17 omitted).
18
19 In this case, Kalican alleged that he mailed a complaint for filing in March 2012, but the
20 clerk refused to docket it because it was unsigned. The district court ruled that Kalican was not
21 entitled to equitable tolling under the circumstances alleged. However, if these allegations are
22 accepted as true, they establish the date when Kalican “filed” his complaint, even in the absence
23 of equitable tolling. See Contino v. United States, 535 F.3d 124, 127 (2d Cir. 2008) (explaining
24 that where an appellant fails to sign a notice of appeal, “the failure to sign may be remedied
25 after the time period for filing the notice has expired”) (citing Becker v. Montgomery, 532 U.S.
26 757, 768 (2001)); see also Toliver v. Sullivan Cnty., 841 F.2d 41, 42 (2d Cir. 1988) (holding
27 that complaint was timely filed where the clerk’s office received it prior to the expiration of the
28 limitations period, but did not formally file it on the docket until after granting plaintiff’s in
29 forma pauperis application, at which point the limitations period had run). Kalican’s unsigned
30 complaint should not have been rejected and returned; it should have been filed, and Kalican (a
31 foreign-born, pro se prisoner) should have been directed to fix any technical errors of legal
32 procedure. See Fed. R. Civ. P. 5(d)(4); Sealed Plaintiff, 537 F.3d at 191. Accordingly, the
33 judgment is vacated and remanded, in part, and the district court should determine when
34 Kalican delivered an unsigned complaint to prison officials for mailing and whether any of the
35 claims dismissed as barred by the statute of limitations would now be considered timely.
36
37 We review a district court’s denial of reconsideration for abuse of discretion. Johnson v.
38 Univ. of Rochester Med. Ctr., 642 F.3d 121, 125 (2d Cir. 2011). To the extent that Kalican
39 sought to challenge the district court’s dismissal of his claims on the merits, the district court’s
40 order is affirmed because the reconsideration motion sought only to “relitigate an issue already
41 decided.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). Kalican provided no
42 reason to second-guess the district court’s dismissal of those claims without leave to replead.
43 To the extent Kalican sought reconsideration of the district court’s statute-of-limitations ruling,
44 that appeal is mooted by our remand.
3
1 Accordingly, we AFFIRM the district court judgment in part and, in part, VACATE
2 and REMAND. Further, we AFFIRM the district court’s reconsideration order in part and, in
3 part, DISMISS the appeal therefrom as moot.
4
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
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4