By: Daily Record Staff//August 13, 2010
By: Daily Record Staff//August 13, 2010//
U.S. District Court, WDNY
State Actor Requirement-Independent Court Reporter
Yevstifeev v. Steve
Background: Plaintiffs Igor Yevstifeev and his wife, Sviatlana Harnizonava proceeding pro se, bring action against the Town of Brighton Police Department, its police chief, two police officers, the Brighton Town Court and court reporter Frank Scarcelli. In brief, the plaintiffs allege the defendants unlawfully arrested and tried him for driving while intoxicated and other offenses, in violation of his First, Fourth, Fifth, Sixth and 14th Amendment constitutional rights, and that the defendants later conspired to cover up their misconduct. With reference to Scarcelli, the plaintiff alleges Scarcelli supplied him with “heavily altered transcripts” of the plaintiff’s probable cause hearing and trial, delayed production of the transcripts to the point that judicial intervention was needed to force their production in time for the plaintiff’s appeal, and that Scarcelli thereby permitted himself to be “used” by the Town of Brighton as part of its cover-up. Scarcelli moved to dismiss.
Ruling: The claims against Scarcelli are dismissed in their entirety. The plaintiff does not allege that Scarcelli is a state actor or that he is employed by the New York Unified Court System, nor does the plaintiff allege any basis on which Scarcelli’s conduct may be “fairly attributable to the State.” As Scarcelli asserts, and as reflected in correspondence filed by the plaintiff, Scarcelli is a freelance court reporter working in Brighton Town Court and is not employed by the town or the state court system. As such, the plaintiffs’ §1983 claims cannot be maintained against him.
Igor Yevstifeev and Sviatlana Harnizonava, pro se; Jon P. Getz of Muldoon and Getz for Scarcelli; Adam M. Clark of Harris, Chesworth, O’Brien, Johnstone, Welch & Leone for the town