1 

12-403-cv 

Sousa v. Marquez 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 

August Term, 2012 

(Argued: December 6, 2012 Decided: December 13, 2012) 

Docket No. 12-403-cv 

_______________________________________________________________ 

BRYAN J. SOUSA, 

Plaintiff-Appellant, 

v. 

DEVIN J. MARQUEZ, 

Defendant-Appellee. 

_______________________________________________________________ 

Before: CABRANES, RAGGI, and CARNEY, Circuit Judges. 

Plaintiff-appellant Bryan Sousa, a former employee at the Connecticut Department of 

Environmental Protection, claims that he failed to prevail in a prior employment-related suit because 

of false statements and deliberate omissions in an investigative report issued by defendant-appellee 

Devin J. Marquez, a staff attorney at the Connecticut Department of Administrative Services. Sousa 

brings this “right of access” suit against Marquez on the theory that Marquez’s actions “caused the 

loss . . . of [his] meritorious case.” Christopher v. Harbury, 536 U.S. 403, 414 (2002). 

We reject Sousa’s argument on two grounds. First, even assuming that so-called “backward 

looking” right-of-access claims are viable in this Circuit, such claims cannot proceed if the plaintiff, 

asserting that the government concealed or manipulated relevant facts, was aware of the key facts at 
2 

issue at the time of the earlier lawsuit. A plaintiff with knowledge of the crucial facts and an 

opportunity to rebut opposing evidence does have adequate access to a judicial remedy. Second, the 

District Court’s opinion in the prior suit demonstrates that the Court did not rely on statements or 

omissions in Marquez’s report, and therefore Sousa has not shown that Marquez’s purported actions 

caused a violation of his rights. 

Affirmed. 

JOHN R. WILLIAMS, New Haven, CT, for Plaintiff-Appellant 

Bryan J. Sousa. 

PETER M. HABERLANDT, Assistant Attorney General (Antoria 

D. Howard, Assistant Attorney General, on the brief), 

for George Jepsen, Attorney General of the State of 

Connecticut, Hartford, CT, for Defendant-Appellee Devin 

J. Marquez. 

JOSÉ A. CABRANES, Circuit Judge: 

 The question presented is whether a suit based on a state governmental official’s purported 

concealment or “manipulation” of relevant facts in the course of a prior civil suit can form the basis 

of a subsequent federal suit under 42 U.S.C. § 1983 alleging a denial of access to court where the 

plaintiff was aware at the time of the earlier lawsuit of the facts giving rise to his claim. We hold that 

“backward-looking” access-to-court claims are not cognizable when the plaintiff had knowledge of 

the crucial facts and an opportunity to rebut opposing evidence, because such a plaintiff necessarily 

had adequate access to a judicial remedy. 

Plaintiff-appellant Bryan Sousa worked at the Connecticut Department of Environmental 

Protection (“DEP”) from 1987 to 2005. During that time, Sousa alleged that he experienced threats 

of violence at work. His complaints led to four investigations. In August 2004, the Connecticut 

Department of Administrative Services (“DAS”) assigned defendant-appellee Devin Marquez—a 

DAS staff attorney—to conduct one of these investigations. Marquez interviewed Sousa and other 
3 

DEP employees and then issued reports concluding that workplace violence had not occurred at 

DEP. 

Sousa then sued various DEP employees alleging retaliation under the First Amendment, 

violation of the Equal Protection Clause, and various state-law tort claims. The District Court 

granted summary judgment in favor of the defendants in 2007, Sousa v. Roque, No. 3:05-cv-00822 

(JCH), 2007 WL 1100318 (D. Conn. April 10, 2007), but we reversed with respect to Sousa’s 

retaliation claim, explaining that our precedent was “at odds with the District Court’s conclusion 

that Sousa’s speech did not address a matter of public concern solely because he was motivated by 

employment grievances,” Sousa v. Roque, 578 F.3d 164, 166 (2d Cir. 2009). On remand, the District 

Court adopted our suggestion that it “may wish to assume arguendo that Sousa’s statements did touch 

on a matter of public concern, and proceed straight to Pickering balancing.” Id. at 175 n.8 (internal 

quotation marks omitted). Applying the balancing test under Pickering v. Board of Education of Township 

High School District 205, Will County, Illinois, 391 U.S. 563 (1968), the District Court held that “there is 

no issue of material fact as to whether Sousa’s ‘interest in free comment is outweighed by the State’s 

interest in the efficiency of its public services.’” Sousa v. Roque, 712 F. Supp. 2d 34, 46 (D. Conn. 

2010) (quoting Sousa v. Roque, 578 F.3d at 175 n.8 (internal quotation marks omitted)). On appeal, 

we affirmed.1 See Sousa v. Roque, 410 F. App’x 411 (2d Cir.), cert. denied, 132 S. Ct. 104 (2011).

In the present case—which is distinct from the previously mentioned suits—Sousa alleges 

that Marquez “discovered and concealed strong evidence in favor of [Sousa’s] contention that 

workplace violence was a serious and ongoing problem at the DEP and had chosen not to interview 

other witnesses who would have testified to the same effect.” Appellant’s Br. 12. Sousa’s claim 

relies in large part on information gleaned from Marquez’s investigation notes, which Sousa 

 

1 As the District Court summarized, Sousa has filed many other claims relating to the alleged conditions at DEP. See 

Sousa v. Marquez, No. 3:07-cv-01787 (JCH), 2012 WL 3727618, at *2 (D. Conn. Jan. 4, 2012). 
4 

obtained pursuant to the Freedom of Information Act. Based on the alleged intentional omissions 

in Marquez’s reports, Sousa claims that Marquez violated his constitutional right of access to courts. 

In short, he argues that Marquez’s skewed findings undercut his otherwise meritorious claims. 

On January 4, 2012, the District Court granted Marquez’s motion for summary judgment. 

The Court explained that Sousa could not demonstrate a violation of his right of access because its 

prior decisions had relied on “Sousa’s deposition and affidavit” and “Roque’s Rule 56 Statement of 

Facts”—not on Marquez’s reports. Sousa v. Marquez, No. 3:07-cv-01787 (JCH), 2012 WL 3727618, 

at *3 (D. Conn. Jan. 4, 2012). The Court stated that it was “puzzled” by Sousa’s allegation because 

“the court’s Ruling does not reference either of Marquez’s reports at all.” 2

 Id.

On appeal, Sousa argues that the District Court erred by considering only its 2010 decision 

without also considering its 2007 decision. In particular, Sousa asserts that “the second ruling [in 

2010] quoted from and relied upon the parts of the first ruling [in 2007] which had been based on 

the defendant’s fraudulent report.” Appellant’s Br. 18. Sousa further argues that the District Court 

should not have adjudicated the present dispute at all because the judge “inevitably was in the 

position of deciding upon her own state of mind in deciding Sousa v. Roque.” Id. at 19. 

DISCUSSION 

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as 

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 

“We review de novo the district court’s grant of summary judgment, drawing all factual inferences in 

favor of the non-moving party.” Sousa v. Roque, 578 F.3d at 169 (internal quotation marks omitted; 

italics supplied). 

 

2 Sousa also brought a common-law claim for spoliation of evidence. The District Court dismissed that claim without 

prejudice after declining to exercise supplemental jurisdiction. See Sousa v. Marquez, 2012 WL 3727618, at *3. 
5 

A. 

Courts of Appeals have recognized two variants of right-of-access claims. See Christopher v. 

Harbury, 536 U.S. 403, 413–14 (2002). First, plaintiffs may allege that “systemic official action” 

frustrated their ability to file a suit. Id. at 413. The object of this type of suit “is to place the plaintiff 

in a position to pursue a separate claim for relief once the frustrating condition has been removed.” 

Id. Such suits are therefore labeled “forward-looking.” Id. at 414 n.11. The second variant of rightof-access claims is “backward-looking access claims,” id., covering suits that “cannot now be tried 

(or tried with all material evidence), no matter what official action may be in the future,” id. at 413–

14. This may occur, for instance, if the official action “caused the loss or inadequate settlement of a 

meritorious case.” Id. at 414. In either circumstance, however, “the right is ancillary to the 

underlying claim, without which a plaintiff cannot have suffered injury by being shut out of court.” 

Id. at 415. 

Sousa argues that “the law is clear that a denial of access to courts claim under the First 

Amendment is viable if the official action in question ‘may allegedly have caused the loss or 

inadequate settlement of a meritorious case.’” Appellant’s Br. 17 (quoting Harbury, 536 U.S. at 414). 

Not so. The viability of backward-looking right-of-access claims is far from clear in this Circuit, and 

Sousa has not pointed to any decision of this Circuit recognizing such a claim. As Judge Michael W. 

McConnell stated shortly after the Harbury decision, “[t]he Supreme Court was careful not to endorse 

the validity of these backwards looking claims.” Jennings v. City of Stillwater, 383 F.3d 1199, 1209 

(10th Cir. 2004) (emphasis supplied). Instead, the Court explicitly stated that it “assume[d], without 

deciding, the correctness of the [courts of appeals] decisions” recognizing a backward-looking right 

of access. Harbury, 536 U.S. at 414 n.9. 
6 

B. 

We need not decide that issue here, however, because even if we followed other circuits in 

recognizing a backward-looking right of access, Sousa’s claim falls well outside the scope of that 

purported right. Such claims, if recognized, would be available only if the governmental action 

caused the plaintiff’s suit to be dismissed as untimely, see, e.g., Swekel v. City of River Rouge, 119 F.3d 

1259, 1264 (6th Cir. 1997),3 or if official misconduct was so severe as to “render[ ] hollow his right 

to seek redress,” Bell v. City of Milwaukee, 746 F.2d 1205, 1261 (7th Cir. 1984), overruled on other grounds 

by Russ v. Watts, 414 F.3d 783 (7th Cir. 2005). This circumstance may arise, for example, if public 

officials withheld from the plaintiff “key facts which would form the basis of the . . . claims for 

redress.” Id. But such claims are available only if a judicial remedy was “completely foreclosed” by 

the false statement or nondisclosure. Broudy v. Mather, 460 F.3d 106, 120 (D.C. Cir. 2006). 

Common to these decisions is the sensible recognition that when a plaintiff in a backwardlooking access suit alleges that the government concealed or manipulated relevant facts, the claim 

may not proceed if the plaintiff was, at the time of the earlier lawsuit, aware of the facts giving rise to 

his claim. See, e.g., Chappell v. Rich, 340 F.3d 1279, 1284 (11th Cir. 2003) (citing Ryland v. Shapiro, 708 

F.2d 967 (5th Cir. 1983), and Bell, 746 F.2d 1205); Swekel, 119 F.3d at 1263 (“[T]he defendants did 

not deny [the plaintiff’s] access to the courts, because [the plaintiff] had all of the relevant facts at 

her disposal.”). That is because a plaintiff who has knowledge of the facts giving rise to his claim 

and an opportunity to rebut opposing evidence does have adequate access to a judicial remedy. If a 

governmental official is lying, for instance, the plaintiff can attempt to demonstrate the falsity of the 

official’s statements through discovery and argument before the court. The point of the backwardlooking right of access recognized by other circuits is to ensure that plaintiffs have that 

 

3 Cf. Pearl v. City of Long Beach, 296 F.3d 76, 80 n.3 (2d Cir. 2002) (pointing out that a party’s fraudulent conduct can also 

sometimes give rise to equitable tolling of statutes of limitations).
7 

opportunity—not to convert every instance of deception by a governmental witness into a separate 

federal lawsuit. 

In this case, Sousa claims to have been aware of the purportedly violent conditions at DEP, 

and therefore he was necessarily aware of the alleged inaccuracies in Marquez’s reports at the time 

he litigated his prior suit, even if he did not then appreciate that Marquez’s distortions were (as he 

now claims) intentionally false or misleading. Moreover, Sousa had an opportunity to expose those 

inaccuracies through discovery and argument before the District Court, which of course was not 

bound by evidence presented or conclusions reached in Marquez’s reports. 

In other words, any intentionally misleading statements or omissions in Marquez’s report did 

not foreclose Sousa’s ability to present his prior case in court. Quite to the contrary. Sousa could 

have requested discovery with respect to the facts presented (or purportedly omitted) in Marquez’s 

reports. See Fed. R. Civ. P. 56(d) (providing avenues for a nonmoving party to oppose summary 

judgment if “it cannot present facts essential to justify its opposition”). “The premise of our 

adversarial system,” after all, is that “courts do not sit as self-directed boards of legal inquiry and 

research,” but rather adjudicate legal questions based on the facts and legal arguments “presented 

and argued by the parties before them.” Coalition on W. Valley Nuclear Wastes v. Chu, 592 F.3d 306, 

314 (2d Cir. 2009) (internal quotation marks omitted). It is a plaintiff’s ultimate responsibility to 

allege and then prove the factual and legal basis for his claim. If a party is aware of the basic facts 

undergirding his claim but fails to make his case, whether through inadequate discovery or 

otherwise, he may not relitigate that dispute through a denial-of-access claim. 

In sum, Sousa has not shown a genuine dispute of material fact with respect to his access-tocourts claim because he has not even stated a claim upon which relief could be granted. As other 

courts of appeals have recognized, and as we now hold, backward-looking access claims are not 
8 

cognizable if the plaintiff, claiming that the government concealed or manipulated relevant facts, was 

aware at the time of the earlier lawsuit of the facts giving rise to his claim. 

C. 

Sousa’s claim also fails because he has not shown a genuine dispute of material fact with 

respect to an alleged injury resulting from Marquez’s reports. See Harbury, 536 U.S. at 415 (“[T]he 

[access] right is ancillary to the underlying claim, without which a plaintiff cannot have suffered 

injury by being shut out of court.”). Sousa states in a conclusory fashion that the District Court’s 

2010 decision was “based on the defendant’s fraudulent report,” Appellant’s Br. 18, and was 

“permeated by the view” taken in that report because of the District Court’s prior decision in 2007, 

id. But at no point in his brief does Sousa demonstrate that the Court’s 2010 decision relied in any 

way on Marquez’s alleged omissions and misstatements. These sorts of conclusory allegations 

cannot create a material dispute of fact, see Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir. 

2010), and the District Court’s 2010 opinion demonstrates that the Court did not, in fact, rely on 

Marquez’s reports when it granted summary judgment in favor of the defendants. 

Sousa further alleges that Judge Hall “inevitably was in the position of deciding upon her 

own state of mind in deciding Sousa v. Roque.” Appellant’s Br. 19. But there is no reason to plumb 

the depths of the District Court’s state of mind. Looking simply to the District Court’s written 

explanation, see Sousa v. Roque, 712 F. Supp. 2d at 36–46, we conclude that the District Court’s 2010 

decision did not rely at all on Marquez’s reports, and therefore Sousa has failed to show the requisite 

injury resulting from the reports to state a right-of-access claim. 

CONCLUSION 

To summarize, we reject Sousa’s argument on two grounds. First, even assuming that socalled “backward looking” right-of-access claims are viable in this Circuit, such claims are not 

cognizable if the plaintiff, claiming that the government concealed or manipulated relevant facts, was 
9 

aware at the time of the earlier lawsuit of the facts giving rise to his claim. A plaintiff with 

knowledge of the crucial facts and an opportunity to rebut opposing evidence does have adequate 

access to a judicial remedy. Second, the District Court’s opinion in the prior suit demonstrates that 

the District Court did not rely on statements or omissions in Marquez’s report, and therefore no 

reasonable factfinder could find that Marquez’s purported actions denied him a right of access to the 

courts in violation of his federal constitutional rights. 

Accordingly, the judgment of the District Court is AFFIRMED.