Kelsey v. Duwe

Background

Michael N. Kelsey, who was incarcerated at Hudson Correctional Facility, filed a self-represented action under 42 U.S.C. § 1983, a federal law allowing damages claims for violations of federal rights by people acting under state authority. He had permission to proceed without paying the filing fee upfront.

Kelsey sued Lenore Duwe, the mother of a minor whom Kelsey was prosecuted and convicted of assaulting, and Jeffrey Rutledge and Darren Nesbitt, New York State Police investigators. The complaint alleged that Kelsey mailed Duwe legal documents in two state-court cases he filed against her. Duwe then submitted depositions to the State Police and requested Kelsey’s prosecution for violating a 2016 order of protection that barred him from contacting her. A town justice later issued an arrest warrant charging Kelsey with two counts of second-degree criminal contempt.

Kelsey alleged that mailing the legal documents was constitutionally protected. He claimed that Rutledge and Nesbitt failed to protect his First Amendment rights, denied him due process, abused legal process, and participated in a conspiracy, retaliatory arrest, and malicious prosecution. He sought money damages.

Screening standard

Because Kelsey was a prisoner proceeding without prepaying the filing fee, the court screened the complaint under the Prison Litigation Reform Act. The court had to dismiss claims that were frivolous, malicious, inadequately pleaded, sought money from an immune defendant, or fell outside the court’s subject-matter jurisdiction. Although courts generally interpret self-represented complaints liberally, the court stated that Kelsey was a former attorney representing himself and therefore was not entitled to the usual special consideration given to self-represented litigants.

Claims against Duwe

The court held that Kelsey failed to state a claim against Duwe under § 1983. A private person generally is not liable under that statute because the person is not acting under state authority. A private person may sometimes be treated as a state actor when there is a sufficiently close connection to state conduct or when the person knowingly participates in joint action with state officials.

The court found that Kelsey alleged only that Duwe reported alleged crimes and provided information to law-enforcement authorities. He did not allege facts showing that Duwe played an active role in his prosecution or acted jointly with the State. The court therefore dismissed Kelsey’s claims against Duwe for failure to state a claim.

Service on Rutledge and Nesbitt

The court did not dismiss the claims against Rutledge and Nesbitt in this order. Because Kelsey had permission to proceed without prepaying fees, he could rely on the court and the U.S. Marshals Service to serve those defendants. The court extended the service period to 90 days after summonses are issued. It directed the clerk to prepare the required service forms, issue the summonses, and provide the necessary documents to the Marshals Service.

The court also instructed Kelsey to notify the court in writing if his address changes and stated that the action could be dismissed if he failed to do so.

Disposition

The court dismissed Kelsey’s claims against Lenore Duwe. It directed the clerk to issue summonses and arrange service on Jeffrey Rutledge and Darren Nesbitt. The court certified that an appeal from the order would not be taken in good faith and denied Kelsey permission to proceed without prepaying fees for an appeal. The order did not resolve the merits of the claims against Rutledge and Nesbitt.