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DAVID C. MOORE, 92-A-6533, Plaintiff
vs. DEANE GARDNER,RICHARD
GANTERT, MIKE FURMAN, MICHAEL McGINNIS,
RICHARD CERIO, RICHARD MORSE,TERRENCE CLEVELAND, CHRIS HUGHSON, JAMES AMEIGH,
RICHARD MURPHY, and DARYL SHAW, Defendants.
00-CV-6076 CJS
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEWYORK
199 F. Supp. 2d 17
DECISION AND ORDER
This is an action in which the pro se prisoner plaintiff is suing
various employees of the New York State Department of Correctional Services
("DOCS"), pursuant to 42 U.S.C. §§ 1983 and 1985. Now before the
Court is plaintiff's motion for summary judgment [# 40] and defendants'
cross-motion for summary judgment [# 45]. For the reasons that follow,
plaintiff's motion is denied in its entirety, and defendants' motion is granted
in part and denied in part.
BACKGROUND
Plaintiff, an inmate at
Southport Correctional Facility, commenced this action on February 26, 2000.
The general facts of this case were set forth in an earlier Decision and Order
[# 6] of this Court. It is sufficient at this point to note that, while
plaintiff's complaint contains eighteen n1 causes of action, he is essentially
asserting four claims: 1) that, on multiple occasions, defendants Gardner,
McGinnis, Morse, Cleveland, and Murphy, conspired to violate, and did violate,
his civil rights by withholding his mail, reading his mail, and disposing of
his legal documents; 2) that on August 29, 1998, defendants Furman,
Gantert, Hughson, and Ameigh, acting with deliberate indifference, failed to
protect him from an assault by another inmate; [*21] 3) that, on September 8,
1998, defendant Cerio, in his capacity as a Disciplinary Hearing Officer,
convicted plaintiff of refusing to obey an order, despite a lack of evidence;
and 4) that defendants McGinnis, Morse, Cleveland, and Shaw, acting with
deliberate indifference, deprived him of his bed linens during cold weather.
On
February 7, 2001, plaintiff filed a motion for partial summary judgment [# 40]
as to defendants McGinnis, Morse, Gardner, Shaw, and Cleveland, with regard to
claims 1, 2, 3, 5, 7, 8, which pertain to some of the alleged instances of mail
and legal tampering, and as to McGinnis, Morse, Cleveland, and Shaw, with
regard to claim 29, which pertains to the alleged deprivation of his bed
sheets. n2 In support of the motion, plaintiff has submitted an affidavit, in
which he essentially reiterates the allegations contained in the complaint,
documentary exhibits, consisting primarily of correspondence between plaintiff
and various prison officials, and inmate grievances concerning alleged
violations of prison procedures. Plaintiff indicates that he is entitled to
summary judgment, not because there are no triable issues of fact, but because
"the preponderance of the evidence weighs in [his] favor."
(Plaintiff's Declaration, P6; Plaintiff's Brief, PP16, 23, 41, 42).
On
May 25, 2001, defendants McGinnnis, Morse, Gardner, Cleveland, Murphy, Shaw,
and Cerio filed an opposition to plaintiff's motion, as well as a cross-motion
for partial summary judgment [# 45].
Defendants' first ground for summary judgment is that many of the claims
in the instant case are barred by a settlement agreement from an earlier proceeding,
98-CV-6554 CJS. It is necessary, for purposes of analyzing defendants' motion,
to summarize the facts of that earlier matter. On December 1, 1998, the
plaintiff, David C. Moore, commenced case number 98-CV-6554 in the United
States District Court for the Western District of New York, against the
following individuals: Glenn Goord, Commissioner of the New York State
Department of Correctional Services ("DOCS"); Michael McGinnis,
Superintendent of Southport Correctional Facility; Deputy Superintendent
Richard Morse; Captain Rocky Hazelton; Lieutenant Palmer; Sergeant D. Shaw;
Corrections Officer Edwin Huffner; Corrections Officer James Santos;
Corrections Officer James Moss; Corrections Officer M. Furman; nurse Kathy
Felker; and nurse Paul Daugherty. In that action, plaintiff alleged that, on
October 4, 1997, Huffner, Moss, and Santos, assaulted him, while Shaw observed
the incident but failed to intervene. Plaintiff further alleged that Felker and
Daugherty acted with deliberate indifference to his medical needs, by failing
to treat the injuries he sustained during the alleged assault. Plaintiff also
contended that subsequently, Huffner and Santos issued false misbehavior
reports about the incident. Additionally, plaintiff claimed that he wrote
letters about the incident to McGinnis and Goord, but that they took no action,
and that, subsequently, defendant Palmer conducted an unfair disciplinary
hearing of the charges against him. Plaintiff's complaint also referred to a
disciplinary report which Furman wrote against him on August 30, 1998, and
alleged that McGinnis unfairly suspended his visiting privileges on September
6, 1998, and that, between October 4, 1997 and August 29, 1998, Goord,
McGinnis, Morse, and Hazelton, unlawfully imposed [*22] deprivation/restraint
orders against him. (98-CV-6554 Complaint [# 1]).
On October 12, 1999, in connection with that lawsuit, plaintiff wrote to the clerk of this Court, asking that he be provided with copies of his filings, because the "jail" had destroyed his copies of his legal papers. Plaintiff also indicated that he had filed inmate grievances against the "jail for destroying [his] law work." On December 9, 1999, during pre-trial proceedings in that case, plaintiff submitted an affidavit [# 10] to the Honorable Jonathan W. Feldman, United States Magistrate Judge, complaining that Ms. Deane Gardner, Senior Mail Clerk at Southport, was unlawfully prohibiting plaintiff from receiving certain mail. More specifically, he alleged that, on November 23, 1999, Gardner had improperly returned mail which had been sent to him by his friend, Linda Maricle, who was assisting him with the typing of his legal papers. Plaintiff asked Magistrate Judge Feldman to direct Gardner to allow him to receive his mail from Ms. Maricle, so that he could be prepared for a scheduling conference to be held before Judge Feldman on December 22, 1999. The court file does not indicate what, if any, action Judge Feldman took in response to plaintiff's application. In any event, although plaintiff notified the Court about the alleged destruction of his papers and the alleged tampering with his mail, he never amended the complaint in case number 98-CV-6554 to add those claims.
On
October 19, 2000, the parties to case number 98-CV-6554 settled that action.
The Stipulation and Order of Settlement [# 17], drafted by counsel for the
defendants, and approved and ordered by the undersigned, recited that, in
exchange for payment of $3,000, plaintiff was agreeing that, "any and all
claims for damages by plaintiff which are the subject of this action or
otherwise arise out of any incident alleged in the complaint are hereby
settled." (Settlement Agreement, P2). The settlement agreement further
stated that plaintiff agreed to release each of the defendants and any and all
current or former employees of the New York State Department of Correctional
Services, in his/her/their individual and official capacities, and
his/her/their heirs, executors, administrators and assigns, and the State of
New York and the New York State Department of Correctional Services, from any
and all claims, liabilities and causes of action including but not limited to
claims related to or arising out of any alleged violation of plaintiff's
constitutional rights, and all other causes of action and claims of liability
arising out of the circumstances set forth in the complaint in the
above-captioned action.
(Id., P4).
Defendants now contend that, as part of the settlement agreement in case
number 98-CV-6554, plaintiff released them from liability for many of the
causes of action asserted in this action. More specifically, they contend that
the 1st, 3rd, 4th, 5th, 7th, 25th, 26th, 27th, and 30th causes of action are
barred, because in them, plaintiff alleges that they tampered with mail and
papers pertaining to case number 98-CV-6554. In other words, they contend that
because some of the claims in this action involve alleged tampering with mail
and papers from the settled action, they are barred by the settlement
agreement. Defendants further contend that they are entitled to summary
judgment on the merits as to all of plaintiff's claims.
The
Court has thoroughly reviewed the parties' submissions and the entire record in
this action. [*23]
ANALYSIS
The
standard for granting summary judgment is well established. Summary judgment
may not be granted unless "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A
party seeking summary judgment bears the burden of establishing that no genuine
issue of material fact exists. See,
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90
S. Ct. 1598 (1970). "The movant must make a prima facie showing that the
standard for obtaining summary judgment has been satisfied." 11 MOORE'S
FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). "In moving for
summary judgment against a party who will bear the ultimate burden of proof at
trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential
element of the nonmoving party's claim." Gummo v. Village of Depew, 75
F.3d 98, 107 (2d Cir. 1996)(citing Celotex Corp. v. Catrett, 477 U.S. 317,
322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)), cert denied, 517 U.S. 1190
(1996).
Once that burden has been established, the burden then shifts to the
non-moving party to demonstrate "specific facts showing that there is a
genuine issue for trial." Fed. R. Civ. P. 56(e); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). To
carry this burden, the non-moving party must present evidence sufficient to
support a jury verdict in its favor.
Anderson, 477 U.S. at 249. Summary judgment is appropriate only where,
"after drawing all reasonable inferences in favor of the party against
whom summary judgment is sought, no reasonable trier of fact could find in
favor of the non-moving party." Leon v. Murphy, 988 F.2d 303, 308 (2d Cir.
1993). The parties may only carry their respective burdens by producing
evidentiary proof in admissible form. FED. R. CIV. P. 56(e). The underlying
facts contained in affidavits, attached exhibits, and depositions, must be
viewed in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655, 8
L. Ed. 2d 176, 82 S. Ct. 993 (1962).
A
court should read a pro se litigant's papers liberally, interpreting them
"to raise the strongest arguments that they suggest." Burgos v.
Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However, when alleging a violation of
a civil rights statute, even a pro se litigant must make "specific
allegations of fact indicating a deprivation of rights, instead of a litany of
general conclusions that shock but have no meaning." Barr v. Abrams, 810
F.2d 358, 363 (2d Cir. 1987).
Plaintiff brings this action pursuant to 42 U.S.C. §§ 1983 and 1985(3).
As to claims for conspiracy pursuant to 42 U.S.C. § 1985, it is well settled
that,
to
prevail on a § 1985(3) claim, a plaintiff must prove that the defendants: (1)
engaged in a conspiracy; (2) for the purpose of depriving him or her of equal
protection, or equal privileges and immunities under the law; (3) acted in
furtherance of the conspiracy; (4) deprived the plaintiff of the exercise of
any right or privilege of a citizen of the United States; and (5) were
motivated by discriminatory animus.
See
New York State Nat'l Org. for Women v. Terry, 886 F.2d 1339, 1358 (2d
Cir. 1989), cert. denied, 495 U.S. 947, 109 L. Ed. 2d 532, 110 S. Ct. 2206
(1990). However, "§ 1985(3) may not be construed as a general federal tort
law," but rather, "a plaintiff must demonstrate some racial, or [*24]
perhaps otherwise class-based, invidiously discriminatory animus behind the
conspirators' action." Id. (Citations and internal quotations omitted). At
the outset, then, plaintiff's conspiracy claims must be dismissed, since he
clearly has not alleged that the defendants conspired against him because of
any class-based, invidious discriminatory animus.
With regard to claims under 42
U.S.C. § 1983, a plaintiff must allege (1) that the challenged conduct was
attributable at least in part to a person acting under color of state law, and
(2) that such conduct deprived the plaintiff of a right, privilege, or immunity
secured by the Constitution or laws of the United States. Dwares v. City of New York, 985 F.2d 94, 98
(2d Cir. 1993). To be liable for money damages under 42 U.S.C. § 1983, a
defendant must have been personally involved in the alleged constitutional
deprivation. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
Personal involvement by a supervisory official may be shown by evidence that:
(1) the defendant participated directly in the alleged constitutional
violation, (2) the defendant, after being informed of the violation through a
report or appeal, failed to remedy the wrong, (3) the defendant created a
policy or custom under which unconstitutional practices occurred, or allowed
the continuance of such a policy or custom, (4) the defendant was grossly
negligent in supervising subordinates who committed the wrongful acts, or (5)
the defendant exhibited deliberate indifference to the rights of inmates by failing to act
on information indicating that unconstitutional acts were occurring.
Id. (citations omitted). A plaintiff may not
rely upon the doctrine of respondeat superior to establish supervisory
liability under 42 U.S.C. § 1983. Monell v. New York City Department of Social
Services, 436 U.S. 658, 691-95, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978).
Plaintiff's Motion for Summary Judgment
Plaintiff's motion for summary judgment [# 40] must be denied, because
plaintiff has not met the requirements of Fed. R. Civ. P. 56. As noted above,
plaintiff, in his motion papers, indicates that he is entitled to summary
judgment because "the preponderance of the evidence weighs in [his]
favor." (Plaintiff's Declaration, P6; Plaintiff's Brief, PP16, 23, 41,
42). Plaintiff does not claim, and has not demonstrated, that there are no
triable issues of fact, or that he is entitled to judgment as a matter of law.
Accordingly, his motion for summary judgment is denied.
Defendants' Motion for Partial Summary Judgment Based Upon the
Settlement in Case Number 98-CV-6554
Defendants' motion on this ground is also denied. Defendants' allege
that many of the claims in this action are barred simply because they relate to
the action that plaintiff agreed to settle. However, the settlement agreement
does not pertain to the claims in this action, but rather, by its own terms,
pertains only to claims arising out of the matters set forth in the complaint
in case number 98-CV-6554. n3 The claims in this lawsuit were not [*25]included
in that complaint, and, at best, are merely collateral to the prior case.
Defendants contend that, the pro se prisoner plaintiff "obviously
knew the instant complaint was inextricably intertwined with 98-CV-6554 when he
agreed to the settlement."
(Defendants' Memo, p. 2). In essence, defendants' counsel contends that the
settlement agreement was intended to settle both 98-CV-6554 and many of the
claims in this case. However, defendants' counsel fails to explain why the
settlement agreement, which his office drafted, does not mention this action.
The Court further notes that, although defendants submitted an affidavit from
the attorney who represented the defendants in 98-CV-6554, it does not indicate
that the settlement agreement was intended to settle any of the claims in this
matter. (See, Steinman Affidavit [# 56]). Accordingly, defendants' motion to
dismiss the claims as settled is denied.
Defendants' Motion for Summary Judgment on the Merits
1.
Plaintiff's Claims Pertaining to Mail and Legal Papers
Most of plaintiff's claims
involve eleven separate incidents, between November 1997 and November 1999, in
which defendants allegedly tampered with his mail and/or seized his legal
papers. The third, fourth, fifth, seventh, n4 eighth, twenty-fifth,
twenty-sixth, and twenty-eighth claims of the complaint allege that defendants
tampered with his mail and legal papers in an effort to deny him access to the
court, in connection with his prior lawsuit, case number 98-CV-6554. The sixth,
twenty-first, twenty-third, thirtieth, and thirty-second claims allege
retaliation. The first, second, and twenty-seventh claims do not expressly allege either denial
of court access or retaliation, but instead, allege interference with plaintiff's
right to send and receive mail, therefore, the Court will treat those claims as
alleging a violation of plaintiff's First Amendment right to send and receive
mail.
a.
Denial of Access to the Courts
It
is well settled that,
Prisoners
have a First Amendment right of access to the courts, and where there is a
deliberate and malicious interference with that right they may seek redress
from the court. Washington v. James,
782 F.2d 1134, 1138 (2d Cir. 1986). To state a valid § 1983 claim for denial of
access to the courts due to interference with an inmate's legal mail, an inmate
must allege that a defendant's deliberate and malicious interference actually
impeded his access to the court or prejudiced an existing action. Lewis v. Casey, 518 U.S. 343, 349, 135 L.
Ed. 2d 606, 116 S. Ct. 2174 (1996). Therefore, in order to survive a motion to
dismiss a plaintiff must allege not only that the defendant's alleged conduct was deliberate and
malicious, but also that the defendant's actions resulted in actual injury to
the plaintiff such as the dismissal of an otherwise meritorious legal claim.)
Id. at 351. In other words "the plaintiff must show that a 'non-frivolous
legal claim had been frustrated or was being impeded' due to the [*26] actions
of prison officials." Warburton v. Underwood, 2 F. Supp. 2d 306, 312
(W.D.N.Y. 1998) (quoting Lewis, 518
U.S. at 353); see also Monsky v.
Moraghan, 127 F.3d 243, 247 (2d Cir. 1997).
Cancel v. Goord, 2001 U.S. Dist. Lexis 3440,
No. 00 CIV 2042 LMM, 2001 WL 303713 at *4 (S.D.N.Y. Mar. 29, 2001). With regard
to demonstrating actual injury, a mere "delay in being able to work on
one's legal action or communicate with the courts does not rise to the level of
a constitutional violation." Id. at *5.
Applying the foregoing principles, the Court finds that defendants are entitled to summary
judgment on all of the denial of court access claims. First, plaintiff has
failed to demonstrate defendants' personal involvement in several of the
claims. For example, plaintiff's fourth claim, against defendants McGinnis and
Morse n5, alleges that on March 11, 1999, he sent legal work to the prison law
library to be photocopied, that the documents were lost, and that when he
complained to McGinnis and Morse about the loss of his papers, they told him
that "accidents happen," and "I hope you don't think I had
anything to do with that." McGinnis and Morse deny making any such
statements. (McGinnis Affidavit, P51, Morse Affidavit, P14). However, even
assuming, as the Court must, that they did make those statements, plaintiff has still failed to show that they
had anything to do with the disappearance of his papers. Similarly, in
his eighth claim, plaintiff alleges that, on September 15, 1999, he received a
package of documents in response to a request under the Freedom of Information
Law (FOIL), from which certain pages were missing. Plaintiff further alleges
that someone altered his "package room sign sheet," and that the
foregoing acts were committed by McGinnis, Morse, and Gardner, all of whom deny
the allegation. In fact, Gardner indicates that, although she was the Senior
Mail Clerk, the mail room was not involved with the processing of FOIL requests
or the processing of packages. (Gardner Affidavit, P57-60). Rather, she indicates
that packages were handled "by the package room, a unit which is entirely
separate from the Mail Room." (Id., P27). Further, she alleges that she
had "nothing to do with how packages [were] handled." (Id.). In
response, plaintiff alleges only that, "defendant Gardner received
plaintiff's package on May 3, 1999, as U.S. Mail, Sr. Mail Clerk responsible
for processing to Package Room." (Plaintiff's Affidavit [# 69], P58).
However, apart from mere speculation, plaintiff has not come forward with any evidence
that McGinnis or Morse had anything to do with the alleged tampering with his
FOIL request, and his claim against Gardner appears to rest solely on a theory
of respondeat superior liability, which as noted, is insufficient under Section
1983.
As
for plaintiff's third claim, it is clear that the particular document was
confiscated because plaintiff had violated the prison's directives. Plaintiff
alleges that on March 5, 1999, defendant Morse directed Cleveland to file a
false misbehavior report against him, which Cleveland did. This misbehavior
report alleged that plaintiff had violated the inmate correspondence
regulations by sending out mail using the return address of another inmate.
Using another inmate's return address, a practice known as "kiting,"
is prohibited by DOCS Directive 4422, §§ III(B)(12) & (19). Plaintiff has
presented no evidentiary proof in admissible form to suggest that [*27] Morse
directed Cleveland to file the misbehavior report. Moreover, plaintiff admits
that he sent the mail out using another inmate's return address, although he
attempts to justify his actions on the grounds that he feared corrections staff
might try to destroy his legal work. (Plaintiff's Affidavit [# 64], P29).
Therefore, it is clear that Cleveland's misbehavior report was warranted.
In
his twenty-sixth claim, plaintiff alleges that the prison library lost certain
documents which he had sent there to be photocopied, and he blames defendants
Murphy and Shaw for failing to assist him in finding the papers. However, he
has produced no proof that either Murphy or Shaw actually destroyed the
documents or failed to search for them. Rather, his claim against Murphy
appears to be based upon respondeat superior ("Defendant Murphy is
Supervisor and in charge of safeguarding our Legal documents." (Complaint
[# 1], P178)), and he admits that he has no personal knowledge regarding Shaw's
actions ("I can't verify that he did or did not [attempt to locate the
documents.] I was not there to give honest testimony to his actions. Based on
past performance I can only allege nothing was done." (Plaintiff's Second
Affidavit [# 78], P71)).
In addition, plaintiff has not
demonstrated that he suffered any actual injury as a result of the alleged
tampering with his mail and legal documents. For example, in his third claim,
plaintiff alleges that on February 25, 1999, defendants Gardner and Cleveland
confiscated a proposed amended complaint in his case number 98-CV-6554,
"resulting in the amended complaint not reaching the courts as it had to
be typed and copied, Plaintiff lost (8) Defendants as a result."
(Complaint, P17). As noted above, the proposed amended complaint was properly
seized because plaintiff attempted to mail it using another inmate's return
address. Even assuming, however, that the confiscation had been improper, the
following chronology demonstrates that plaintiff suffered no actual injury.
Plaintiff admits that he learned of the confiscation of his proposed amended
complaint as early as March 16, 1999. (Id., P14). Subsequently, on April 9,
1999, the Court signed a Decision and Order [# 3], which, inter alia, gave
plaintiff until May 14, 1999, to file an amended complaint. In his fifth claim,
plaintiff alleges that he attempted to comply with this deadline for filing an
amended complaint, and that on April 30, 1999, Ruth Moore, who is
apparently his mother, typed and sent him three copies of an amended complaint.
Plaintiff further alleges that he notified Gardner in advance that he needed
the package in order to meet a court-ordered deadline, but Gardner
"forwarded mail to the facility package room where it continued to sit on
a shelf until June 15, 1999, one month past court ordered date."
(Complaint, PP23-24). As to that, it is undisputed that the papers were in a
box, as opposed to an envelope, and it is also undisputed that Gardner was not
involved with the operation of the package room. However, plaintiff also fails
to mention that he was later given
additional time to file a motion to amend his complaint. See, 98-CV-6554,
Scheduling Order [# 11]: "All motions to join other parties or to amend
pleadings shall be filed by March 31, 2000."). Plaintiff never filed any
such motion to amend the complaint, nor does he allege that he attempted to do
so. Instead, on February 28, 2000, he commenced this action. Thus, at the time
plaintiff commenced this action, he still had a month in which to file a motion
to amend the pleadings in his other case. Subsequently, as previously
indicated, he settled the action for the sum of three thousand dollars. (See,
98-CV-6554, Stipulation [*28] and Order of Settlement [# 17]). In light of all
the foregoing, the Court finds that plaintiff has not shown actual injury.
Similarly, in his twenty-fifth claim, plaintiff alleges that on September
13, 1999, he attempted to send 452 pages of legal mail to "Attorney A.
Plasse," apparently in connection with case number 98-CV-6554, in two
sealed envelopes, and that, thereafter, Gardner twice refused to mail the
envelopes, and returned them to him having been opened, and that the second
time the envelopes were returned, papers were missing. (Complaint, PP161-62).
However, apart from delaying his ability to communicate with the attorney,
plaintiff has not explained how this alleged destruction caused him to suffer
any actual injury in connection with 98-CV-6554, or any other law suit.
Finally, plaintiff's thirtieth claim alleges that Gardner returned the
affidavit of another inmate which Maricle had mailed to plaintiff for use at a
"conference" in case number 98-CV-65554. Plaintiff indicates that he
initially possessed the original of the affidavit, but mailed it out to
Maricle, so that she could type a copy of it and return both the original and
the copy to him. (Plaintiff's Affidavit [# 69], PP114, 116). When Maricle
attempted to mail the original and a typed copy back to him, it was confiscated
as third-party mail, since the affidavit was from another inmate. As discussed
further below, it appears that this affidavit was properly returned as prohibited
third-party mail. Moreover, plaintiff has not explained how the returning of
the affidavit caused him to suffer any actual injury. As to that, plaintiff was
certainly not required to send the original of the affidavit out to be re-typed
by Maricle, thus there was nothing to prevent him from submitting the affidavit
directly to the Court.
The
Court has considered all of plaintiff's denial of court access claims, and
finds that he has failed to raise triable issues of fact either as to the
defendants' personal involvement or as to the required element of actual
injury. Plaintiff has not demonstrated that the alleged acts of interference
resulted in him receiving a smaller settlement amount that he would have
otherwise, or that they otherwise affected the outcome of the action. Rather,
the record indicates that despite any alleged interference from defendants,
plaintiff was fully able to prosecute case number 98-CV-6554 and to resolve it
on terms that were satisfactory to him. Therefore, he has not shown that he
suffered any actual injury. Consequently, all of the claims alleging denial of
court access (3,5,7,8,25,26,28,30) are dismissed. n6 However, although the
twenty-fifth and thirtieth claims must be dismissed insofar as they claim
denial of court access, the Court will also consider them below, insofar as
they can also be construed as stating, respectively, a claim for retaliation
and a claim for violation of plaintiff's First Amendment right to send and
receive mail.
b.
Retaliation Claims
The
Second Circuit Court of Appeals has set forth the applicable law for
retaliation claims as follows:
[*29]
In Mount Healthy Sch. Dist. v. Doyle, 429
U.S. 274, 287, 97 S. Ct. 568, 576, 50 L. Ed. 2d 471 (1977), the Supreme Court
established the standard for a § 1983 claim that the state actor retaliated
against a plaintiff for exercising a constitutional right. The plaintiff bears
the burden of showing that the conduct at issue was constitutionally protected
and that the protected conduct was a substantial or motivating factor in the
prison officials' decision to discipline the plaintiff. Id. If the plaintiff
carries that burden, the defendants must show by a preponderance of the
evidence that they would have disciplined the plaintiff "even in the
absence of the protected conduct." Id. Thus, if taken for both proper and
improper reasons, state action may be upheld if the action would have been
taken based on the proper reasons alone.
Lowrance, 20 F.3d at 535 (citing Mount Healthy, 429 U.S. at 287, 97 S.
Ct. at 576; Sher v. Coughlin, 739 F.2d 77, 82 (2d Cir. 1984)) (affirming
summary judgment dismissal of prisoner's § 1983 retaliation claim). A finding
of sufficient permissible reasons to justify state action is "readily
drawn in the context of prison administration where we have been cautioned to
recognize that prison officials have broad administrative and discretionary
authority." Lowrance, 20 F.3d at 535 (quotation marks omitted).
Retaliation claims by prisoners are "prone to abuse" since prisoners
can claim retaliation for every decision they dislike. Flaherty v. Coughlin, 713 F.2d 10, 13 (2d
Cir. 1983). A complaint of retaliation that is "wholly conclusory"
can be dismissed on the pleadings alone. Id.
In short, [an inmate's] claim will not
survive summary judgment under the Mount Healthy test if he does not meet the
burden of demonstrating two genuine issues of material fact: (1) that the
disciplined conduct was constitutionally protected, and (2) that his punishment
was motivated, in whole or in part, by his conduct--in other words, that the
prison officials' actions were substantially improper retaliation. Assuming
[the inmate] meets his burden, his claim will still not survive summary
judgment under Mount Healthy if the defendants meet their burden of showing
that there is no genuine issue as to the fact that [he] would have received the
same punishment even if they had not been improperly motivated.
Graham v. Henderson, 89 F.3d 75, 79-80 (2d
Cir. 1996). Filing an inmate grievance is constitutionally protected
activity. Id. at 80 (citation omitted).
In
his sixth claim, plaintiff alleges that, in May of 1999, Gardner twice delayed his mailing of an order to a gift
catalog, in retaliation for unspecified complaints he made against her. More
specifically, he alleges that on April 29, 1999, he followed the proper prison
procedures for mailing out a catalog order, and in that regard, he has
submitted copies of his disbursement requests, which were approved by a
corrections officer. (See, Plaintiff's Exhausted Remedies & Exhibits, Sixth
Claim). On April 30, 1999, the mail room returned his order, with a
notification, indicating that he had failed to use separate disbursement forms
for his order and for his postage. The notification also contained a
handwritten notation, "Disbursement was included for order. Also second
disbursement for postage for both letters." Plaintiff indicates that Gardner
returned the mail to him because he attempted to use one disbursement form to
mail two items. (Plaintiff's Affidavit [# 69], P51, Exhibit U, dated April 30,
1999). However, he also indicates that inmates may use one form 2706 to mail
multiple letters. (Id., P69, Exhibit W). Subsequently, on May [*30] 13, 1999,
plaintiff again attempted to mail his catalog order, using separate
disbursement forms for the order and for the postage, and putting only one
postage request on the latter form. However, although a corrections officer
again approved the forms, the mail room returned the mail without explanation.
Gardner's affidavit in support of summary judgment does not purport to
say exactly why the mail was twice returned, but notes instead that "there
is no record in the mail room files showing that any mail was returned by the
mailroom to plaintiff during the time period in question in this claim."
(Gardner Affidavit [# 52], P51). However, she generally denies that she ever
tampered with plaintiff's mail or retaliated against him. (Id., PP93-96).
Considering all the foregoing, the Court finds, first, that plaintiff
has not demonstrated that Gardner was personally involved in the decision to
return the catalog order. Although plaintiff clearly indicates that the mailing
was returned to him by the mail room, that fact that Gardner ran the mail room
would not alone subject her to liability. Plaintiff's belief that Gardner has
respondeat superior liability is indicated by his affidavit [# 69], in which he
states: "Plaintiff sent mail to mailroom for mailing. Plaintiff told to
resubmit by correspondence, first mailing April 29, 1999. Mail clerk initialed
for DG. claiming request denied, two postage may not be on from 2706. Exhibit
U." (Plaintiff's Affidavit [# 69], P51, Exhibit U)(emphasis added).
Assuming that "DG" refers to the defendant, Deane Gardner,
plaintiff's affidavit indicates his belief that some other, unidentified, mail
clerk signed on behalf of Gardner.
Even assuming, however, that plaintiff had shown that Gardner personally
returned his catalog order, his allegations regarding retaliation are merely
conclusory. See, Boddie v. Schnieder,
105 F.3d 857, 862 (2d Cir. 1997)(noting that "unsupported, speculative,
and conclusory" claims of retaliation may be dismissed. )(citations
omitted). In his complaint, plaintiff merely alleges that Gardner "delayed
mail out of retaliation for Plaintiff's complaints." (Complaint [# 1],
P28). Plaintiff has not otherwise explained what specific "complaints"
of his are claimed to be protected activity, nor has he provided any
evidentiary proof in admissible form demonstrating a causal link between such
"complaints" and the returning of his catalog order. Accordingly,
Gardner is entitled to summary judgment as to the sixth claim.
Plaintiff's twenty-first claim alleges two separate incidents of
retaliation by Gardner. First, he alleges that, on June 26, 1999, Maricle sent
him a letter and a money order, and that Gardner held the letter for a week and
then returned it to Maricle without
notifying him. Then, he alleges that on July 1, 1999, he attempted to mail a
letter, and Gardner held the letter for eleven days before returning it to him.
He contends that these actions were in retaliation for his having filed a
grievance against Gardner for allegedly delaying his mail.
With regard to the first letter from Maricle, Gardner indicates that she
returned the letter because it contained "coding," in violation of
DOCS Directive 4422, and that any delay in the return was probably because July
5, 1999 was a business holiday. (Gardner Affidavit PP61-63). The record
contains a copy of the memo which Gardner sent to Maricle, which states, in
relevant part:
In accordance with [DOCS] correspondence
policy and procedure, the enclosed is being returned to you in its entirety as
it is unacceptable correspondence for [*31]one or more of the following reasons
and will not be delivered to the inmate: The letter enclosed contains
"coding" and is considered a breach of security.
(Plaintiff's Exhausted Remedies &
Exhibits, Twenty-first claim). The letter which allegedly contained coding is
not in the record. n7 Plaintiff filed an inmate grievance against Gardner,
which was denied, and in response to his appeal, the Central Office Review
Committee ("CORC") indicated that the coding in the letter appeared
to be "third party mail:" "The contents [of the letter] included
pages consisting of an arbitrary system of letters, and it was not possible to
determine who had written these pages." (CORC decision dated September 8,
1999). Accordingly, CORC indicated that it was appropriate to return the letter
without first notifying plaintiff, pursuant to Directive 4422, sec.
III(G)(4)(a), which states:
Third party mail - defined as correspondence
from a party who is not identified as the sender in the return address. The
facility staff shall return the entire correspondence to the sender with a
letter explaining that third-party mail is considered contraband, is against
Department rules, and therefore will not be delivered to the inmate.
(Plaintiff's Exhausted Remedies &
Exhibits, Twenty-first claim)(emphasis added).
Plaintiff's main complaint seems to be that he was denied "due
process," that is, he was not given notice and an opportunity to be heard
before the mail was returned to Maricle. His claim therefore depends upon a
technical distinction in Directive 4422, since, pursuant to that directive,
when an inmate is sent third-party mail, the facility is entitled to simply
return the entire correspondence to the sender, but when the inmate is sent
"unauthorized items," he is
notified and is given the option of either having the items returned to the
sender, donated, or destroyed at his cost. (Directive 4422, Sections
G(4)(a)&(b). Plaintiff acknowledges that June 26, 1999, was a Sunday, and
that July 5, 1999, was a holiday. (Plaintiff's Affidavit [# 69], PP61, 63).
As
to the first of these incidents, the Court finds that Gardner is entitled to
summary judgment. It is undisputed that prison officials may inspect incoming
correspondence for contraband. See, Directive 4422, Section G(1). Moreover, it
does not appear that Gardner did anything improper by treating the mail as
third-party mail, and returning it to the sender. Nor has plaintiff
demonstrated that Gardner unreasonably delayed returning the letter.
With regard to the letter which plaintiff attempted to mail on July 1,
1999, which was returned eleven days later for insufficient funds, defendants
have submitted a grievance which plaintiff wrote on July 15, 1999, in which he
stated, "If she [Gardner] had not held it until 7/12 (after Commissary), I would have had sufficient funds."
(McGinnis Affidavit [# 53], Exhibit N)(emphasis added). Clearly, this indicates
that, in fact, plaintiff did not have sufficient funds to mail the letter.
Moreover, as to his claim that Gardner intentionally delayed processing his
letter, she has stated, in her affidavit, that plaintiff's letter was processed
and sent on to the Business Office, whose function it was to determine whether
or not he had sufficient funds. Moreover, pursuant to DOCS Directive
2798(III)(A)(b), the Business Office has at least ten days in which to process
[*32] inmate disbursement requests. (McGinnis Affidavit [# 53], Exhibit V).
Accordingly, she indicates that she was not responsible either for the alleged
delay or for the letter being returned for insufficient funds. (Gardner
Affidavit [# 52], PP71-76). The Court also notes that July 3rd - 4th, 1999, was
a weekend, and that July 5th was a federal holiday. As to this claim, the Court
finds that plaintiff has failed to demonstrate either that his outgoing mail
was unreasonably delayed, or that Gardner had anything to do with his letter
being returned for insufficient funds. Accordingly, Gardner is entitled to summary judgment with regard
to the 21st claim, which is dismissed.
For
his twenty-third claim, plaintiff alleges that, on June 23 and June 27, 1999,
he attempted to mail letters, which Gardner held until June 30th before
mailing. Plaintiff alleges that this delay was retaliatory, although he again
does not identify the specific protected act for which Gardner was allegedly
retaliating. Gardner denies that she delayed plaintiff's mail, and notes that,
as discussed above, when inmates want to send a letter, they need to make a
disbursement request, which is forwarded to the prison's Business Office for
processing, and that, under DOCS Directive 2798, the Business Office has ten
days to process such requests. (Gardner Affidavit, PP64-72). Plaintiff admits
that the Business Office has ten days to process such requests. (Plaintiff's
Affidavit [# 70], P86). Moreover, Gardner noted that June 23, 1997 was a
Wednesday, and June 27, 1999 was a Sunday. Therefore, the former letter was
"delayed" 5 business days, and the latter letter just two business
days before they were mailed.
The
Court again finds that plaintiff has failed to raise a triable issue of fact as
to whether or not his outgoing mail was unreasonably delayed, and whether or
not Gardner had anything to do with such delay. Therefore, she is entitled to
summary judgment on the twenty-third claim, which is dismissed.
For
his thirtieth claim, also discussed above, plaintiff alleges that on November 17, 1999, Maricle mailed him a
letter containing an affidavit from another inmate. Plaintiff alleges that
defendant Gardner received the letter on or about November 19, 1999, then
returned it to Maricle on November 24th, as prohibited third-party mail.
Plaintiff has submitted a copy of the memo which Gardner sent to Maricle, which
does indicate that the mail was being returned as third-party mail.
(Plaintiff's Exhausted Remedies & Exhibits, Thirtieth claim).
Gardner indicates that she had no personal involvement in the decision
to return the mail to Maricle, however, she agrees that if the envelope
contained an affidavit from another inmate, it was prohibited third-party mail
under Directive 4422. (Gardner Affidavit, PP108-120, Exhibit N). In response,
plaintiff agrees that Gardner was not involved in returning the mail (See,
Moore Affidavit [# 69], PP108-11), but he contends that she is nonetheless
liable, since, as Senior Mail Clerk, she is "in charge of making sure
staff follow policy and procedure." (Id. at P120).
The Court finds that Gardner is entitled to
summary judgment, because plaintiff has not demonstrated her personal
involvement, and, as noted, there is no respondeat superior liability under
Section 1983. Moreover, the mail in question does fit the description of
third-party mail. Gardner is therefore entitled to summary judgment on the
thirtieth claim, which is dismissed.
Finally, for his thirty-second claim, in which he names defendant
Murphy, plaintiff alleges that on December 5, [*33] 1999, he sent documents,
pertaining to the instant lawsuit, to the prison library to be photocopied. n8
Subsequently, he received back a memo from Murphy, instructing him to explain
why those documents contained a misbehavior report belonging to another inmate.
In an affidavit, Murphy indicates that, pursuant to prison regulations,
plaintiff was not entitled to possess the other inmate's misbehavior report,
and that accordingly, he sent the memo to plaintiff telling him to explain how
he came to possess the report, or else would issue plaintiff a misbehavior
report. (Murphy Affidavit, PP8-14). Murphy subsequently did write a misbehavior
report, in which he alleged that plaintiff never responded to his memo.
Plaintiff, however, contends that he did give Murphy a written explanation,
explaining that he had been authorized to possess the other inmate's papers by
a Disciplinary Hearing Officer. (Id., P14, Exhibit D). Plaintiff also alleges
that, prior to his commencing a lawsuit against Murphy, Murphy had previously
photocopied the same document but had not questioned plaintiff about it.
Moreover, the alleged retaliation occurred shortly after the date Murphy would
have learned that plaintiff was naming him as a defendant in the instant
action. Based upon the foregoing, the Court finds that, as to the thirty-second
claim, plaintiff has at least demonstrated a triable issue of fact as to
whether or not Murphy retaliated against him. Therefore, the thirty-second
claim against Murphy may go forward.
c. First Amendment Right to Send and Receive Mail
Plaintiff's first, second, twenty-fifth, and twenty-seventh claims all
pertain to alleged tampering with his mail. It is clear that "prison
inmates have a First Amendment right to the free flow of both incoming and
outgoing mail," and that "prison restrictions on inmate mail must be
reasonably related to prison interests in security." Hudson v. Greiner,
2000 U.S. Dist. Lexis 17913, No. 99 CIV. 12339 (LAP), 2000 WL 1838324 at *5
(S.D.N.Y. Dec. 13, 2000)(citations omitted); see also, Wolfish v. Levi, 573 F.2d 118, 129-30 (2d
Cir. 1978), rev'd on other grounds, sub nom.
Bell v. Wolfish, 441 U.S. 520, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979).
Although prisoners' First Amendment mail claims are often intertwined with
claims for denial of court access, they may exist separately.
With regard to outgoing legal mail, "prison officials can only open
an inmate's outgoing legal mail if there is a 'rational justification' for
doing so." Cancel v. Goord, 2002 U.S. Dist. Lexis 3440, No. 00 CIV 2042
LMM, 2001 WL 303713 at *7 (citing
Davidson v. Scully, 694 F.2d 50, 54 (2d Cir. 1982). Moreover, DOCS
Directive 4421 states that "outgoing privileged correspondence may be
sealed by the inmate, and such correspondence shall not be opened, inspected,
or read without express written authorization from the facility
superintendent." As for incoming legal mail, it is undisputed that such
mail "shall not be opened outside the presence of the inmate to whom it is
addressed; and shall not be read without express written authorization from the
facility superintendent." DOCS Directive 4421, Section III(B)(1). Although
a single, isolated incident may fail to state a constitutional claim, multiple
occurrences of prison officials opening an inmate's privileged mail may give
rise to a Section 1983 action.
Washington v. James, 782 F.2d 1134, 1139 (2d Cir. 1986).[*34]
At
the outset, the Court notes that all of plaintiff's mail claims are against the
backdrop of his belief that he was the subject of an unauthorized "mail
watch," instituted by defendant Superintendent McGinnis. Mail watches may
only be imposed under certain circumstances:
Incoming general correspondence ... will not
be read unless there is evidence that [it] may contain one or more of the following:
a. plans for sending contraband ... b. plans for criminal activity ... and c.
information which, if communicated, would create a clear and present danger....
Written authorization from the facility
Superintendent to read incoming mail must be placed in the inmate's file
specifying the reasons such action is considered necessary and whether all mail
or certain correspondence shall be read. ...
(DOCS Directive 4422, Section G(5)&(6);
see also, Section (B)(8): "Outgoing correspondence shall not be opened,
inspected, or read without express written authorization from the facility
Superintendent."). As proof that such a mail watch existed, he has
submitted a memo which his prison counselor, Patricia Klatt, sent to him, after
he asked her to check on the status of his mail. The memo, dated April 30,
1998, states as follows: "Mr. Moore: I spoke with Mrs. Gardner in
Correspondence. She advised me that your mail is being checked by the
Superintendent currently and as soon as she has a response from him you will be
hearing from her." (Plaintiff's Affidavit [# 68], Exhibit B). Plaintiff
contends that this memo demonstrates that the mail watch existed and that
Gardner and McGinnis had an ongoing
practice of improperly checking his
mail. Klatt contends that her memo only pertained to one letter about which
plaintiff had asked her, and that there was no mail watch. Plaintiff, however,
maintains that he had asked Klatt to check on the status of several pieces of
mail, and that her memo indicates that McGinnis was checking all of his mail,
which would have been prohibited, since there was no written authorization from
McGinnis for a mail watch. (Klatt Affidavit [# 49], P5; Plaintiff's Affidavit
[# 68]).
Turning to the specific claims of mail interference, plaintiff's first
claim involves a piece of mail, which he contends was properly labeled as
confidential legal correspondence, that he attempted to mail, and which Gardner
and McGinnis opened and returned to him. He claims that on November 20, 1997,
he attempted to send a letter to an F.B.I. agent, Robert J. Wick, Jr.,
concerning alleged constitutional violations at the prison, but that Gardner,
with McGinnis' permission and agreement, opened the letter, "pryed into
its contents," and then returned it to plaintiff. Plaintiff indicates that
Wick had previously come to the prison to interview him as part of an
investigation into alleged civil rights violations at the prison. The record
indicates that Gardner sent plaintiff's letter to McGinnis, asking whether or not
the letter should be classified as legal mail, and that McGinnis classified it
as non-legal mail, whereupon it was opened and returned to plaintiff. Plaintiff
alleges that Gardner and McGinnis conspired to open and read this mail, because
they feared what plaintiff might have been communicating to the F.B.I.
McGinnis indicates that he never tampered with or destroyed plaintiff's
mail, and that he is not aware of any of his staff doing so. (McGinnis
Affidavit, P88). Moreover, he indicates that, "every time plaintiff's mail
was opened, returned, or otherwise interfered with, it was due to a violation
of the correspondence regulations." (Id., P94). Gardner also indicates
[*35] that the letter was opened and returned because plaintiff did not follow
the Department of Correctional Services' Directive 4421 regarding privileged
correspondence. Section(III)(B)(10) of that directive requires that all mail
include the addressee's full address, and that if it does not, the mail is to
be opened to ensure that it is returned to the appropriate inmate. Gardner
indicates that plaintiff violated this rule, since his letter was addressed
only to "Robert J. Wick, Jr., Special Agent, P.O. Box 150, Elmira NY
14901," from which it was not possible to determine that Wick was a
governmental or public official. (Gardner Affidavit, P4-11, Exhibit A).
Plaintiff, however, maintains that he did include the term "F.B.I."
on the envelope, and that someone, presumably Gardner, deleted that term from
the envelope. (Plaintiff's Affidavit [# 70], P24; see also, Plaintiff's
Affidavit [# 69], P11). Plaintiff also indicates that McGinnis knew that Wick
was an F.B.I. agent, since he had been to the prison and signed in on the
prison's log book. Considering all of the foregoing, the Court finds that there
are triable issues of fact surrounding the first claim, therefore, defendants'
motion for summary judgment as to that claim is denied.
The
twenty-fifth claim, as noted above, indicates that on September 13, 1999,
plaintiff attempted to mail 452 pages of documents pertaining to a Section 1983
action to an attorney named A. Plasse. Plaintiff sent the documents to be
mailed in two sealed envelopes. The following day, Gardner returned the
envelopes to plaintiff, claiming that his postage disbursement form was
incomplete, because it had not been signed by a corrections officer. Plaintiff
alleges Gardner had no reason to return the mail, since his disbursement form
had been signed by a corrections officer. Moreover, he contends that when he
received the envelopes back, they had
been opened and stapled shut. Plaintiff again attempted to mail the envelopes,
using new disbursement forms signed by a corrections officer, but Gardner again
returned the envelopes. Plaintiff contends that the envelopes had again been
opened, and that 372 pages of documents were missing. (Complaint, PP161-66). In
support of the motion for summary judgment, Gardner contends that on both
occasions, the envelopes were returned, unopened, because plaintiff had not
followed the proper mailing procedures. (Gardner Affidavit [# 52], PP77-84).
Based upon the foregoing, the Court finds that there are triable issues of
fact, and defendants' motion for summary judgment is denied as to the
twenty-fifth claim, with regard to the claim for mail interference.
Plaintiff's twenty-seventh claim pertains to a letter sent to him by the
United States Department of Justice, which clearly qualifies as legal mail.
Plaintiff contends that the letter was opened before he received it, because
the tape re-sealing the envelope was placed over a stamp indicating the date
the letter had been received at the prison. Plaintiff also alleges that the
corrections officer who brought the envelope to his cell indicated that he had
received it from Gardner. Gardner, however, denies that she opened plaintiff's
legal mail, and notes that, pursuant to DOCS policy, legal mail is delivered to
the inmate by the Legal Mail Officer, who opens the mail in the inmate's
presence to insure that it complies with DOCS directives, and that the inmate
then must sign a receipt. Gardner states that the receipt which plaintiff
signed does not indicate that the mail had been opened. (Gardner Affidavit,
PP85-96, Exhibit I). Clearly, there is a triable issue of fact as to whether or
not this piece [*36] of legal mail was opened. Accordingly, defendants' motion
for summary judgment as to the twenty-seventh claim is denied.
Finally, in his second claim, plaintiff alleges that in April of 1998,
Gardner, upon McGinnis' orders, refused to deliver sixteen pieces of mail
addressed to him, and instead, returned them to the sender, without
justification. It is well-settled that
"prison regulations or practices affecting a prisoner's receipt of non-legal
mail must be reasonably related to legitimate penological interest."
Cancel, 2001 U.S. Dist. Lexis 3440, 2001 WL at *6 (Citations and internal
quotations omitted). Pursuant to § 27 of Southport's Orientation Manual,
inmates are only permitted to receive up to five photocopies in the mail. Moreover,
inmates are not permitted to possess posters, defined as being larger than
14" x 18". (Gardner Affidavit, Exhibit C).
In
support of the summary judgment motion, Gardner states: "The 16 letters
that plaintiff refers to in this claim were 16 oversize envelopes, each
containing more than 5 photocopies. ... The photocopies were larger than
poster-size, which is not allowed." (Gardner Affidavit [# 52], PP21-22).
Plaintiff, however, maintains: "Plaintiff's 16 letters were not oversize,
they were standard manilla envelopes smaller than the legal envelopes the
facility gives prisoners. ... [The envelopes] contained 6 pages, five copies
and none notebook page letter." (Moore Affidavit [# 69], P21). Therefore,
plaintiff asserts that each of the envelopes contained only five copies.
Moreover, he indicates that Gardner previously stated, in a memo to him, that
only one of the envelopes contained a postersized photocopy. (Id., P22 &
Exhibit F).
Based on the foregoing, the Court finds that there are triable issues of
fact as to whether or not plaintiff's sixteen pieces of mail were properly
returned. For example, it is unclear whether the prison's limit on five
photocopies is intended to limit the receipt to five copies per day, or five
copies per letter. Moreover, even if
Gardner's affidavit is true, it does not appear that she complied with the
prison's regulations, because she returned all of the mail, while the SHU
manual indicates only that, "excess of 5 must be sent home or
destroyed." (McGinnis Affidavit [# 53], Exhibit A)(Emphasis added). While
a failure to follow prison regulations does not of itself state a
constitutional claim, in the context of the instant action is does lend some
weight to plaintiff's claim. Therefore summary judgment is denied as to the
second claim.
Plaintiff's Claims Pertaining to His Conditions of Confinement
In
his twenty-ninth claim, plaintiff complains that defendants McGinnis, Morse,
Cleveland, and Shaw, acting with deliberate indifference, deprived him of his
bed linens during cold weather. The law regarding Eighth Amendment claims as to
conditions of confinement is well settled:
While the Eighth Amendment's prohibition
against cruel and unusual punishment does not mandate comfortable prisons, the
conditions of confinement must be at least humane. In order to establish a
violation of his Eighth Amendment rights, an inmate must show (1) a deprivation
that is objectively, sufficiently serious that he was denied the minimal
civilized measure of life's necessities, and (2) a sufficiently culpable state
of mind on the part of the defendant official, such as deliberate indifference
to inmate health or safety. A prison official may be found to have had a
sufficiently culpable state of mind if he participated directly in the alleged
event, or learned of the inmate's complaint and failed to remedy it, or created
[*37] or permitted a policy that harmed the inmate, or acted with gross
negligence in managing subordinates.
Gaston v. Coughlin, 249 F.3d 156, 164 (2d
Cir. 2001)(citations and internal quotations omitted). As to the objective
prong of the analysis set forth above, "an Eighth Amendment claim may be
established by proof that the inmate was subjected for a prolonged period to
bitter cold." Id. (citing
Corselli v. Coughlin, 842 F.2d 23 (2d Cir. 1988)).
In
Gaston, the plaintiff alleged that there were numerous broken windows in his
cell block, and that he "was subject to temperatures near or well below
freezing for a five-month period." Id. 249 F.3d at 165. The Second Circuit
held that those facts set forth a "colorable Eighth Amendment claim."
Id. Similarly, in Corselli, an inmate alleged that
he was deliberately exposed to bitterly cold
temperatures for approximately three months in the fall and winter of 1983-84 when
the large window frames in his cell block were empty and corrections officers
made things worse by tearing down plastic sheeting partially covering the
frames. [The plaintiff] submitted to the district court climate data charts
that demonstrated that temperatures in the Sing Sing environs were in the
subfreezing range for most of that period. [The plaintiff] further asserted at
his deposition that 'it was so cold ... there was ice in the toilet bowl.'
842 F.2d at 27. In response, the defendants
indicated that they had given the inmates an additional blanket. Id. The Second
Circuit, reversing a grant of summary judgment for the defendants, held that
the issue of whether or not plaintiff had established an 8th Amendment
violation had to "be resolved by the trier of fact." Id. Also, in
Wright v. McMann, 387 F.2d 519, 521 (2d Cir. 1967), the Second Circuit found an
8th Amendment violation where the inmate alleged, inter alia, that "the
windows in front of his confinement cell were
opened wide throughout the evening and night hours of each day during
subfreezing temperatures causing plaintiff to be exposed to the cold air and
winter weather without clothing or other means of protecting himself or to
escape the detrimental effects thereof." Id.; see also, Maguire v. Coughlin, 901 F. Supp. 101, 105
(N.D.N.Y. 1995)(Denying summary judgment where the plaintiff alleged that he
was confined in a cold cell without bed linens.); but see, Grant v. Riley, 1993 U.S. Dist. Lexis
16605, No. 89 Civ. 0359 (MBM), 1993 WL 485600 at *4 (S.D.N.Y. Nov. 24,
1993)(Wherein plaintiff alleged that he was kept in a cold cell with a broken
window for three days, nine of those hours without "coat, bedding, or
blankets," but district court granted summary judgment for defendants,
noting that, "plaintiff does not claim that any defendant deliberately
subjected him to the cold, and has alleged only a three-day period of
exposure.").
In
his Complaint, plaintiff alleges that on Friday, November 26, 1999, he placed
four bed sheets into the laundry, and that later that day, he received back
only one full sheet and a half of another torn sheet. He also alleges that
"the weather was ten to twelve degrees and [his] window had weather strips
missing allowing cold air into [the] cell." (Complaint, P194). In
addition, plaintiff had his usual clothing, as well as one summer-weight
blanket. (Plaintiff's Response [# 58], P91). He alleges that over the following
three weeks, he notified Cleveland, Morse, and Shaw, that the sheets were
missing and that his cell was cold, and offered to pay for new sheets, but that
they did not provide him with additional sheets. He also indicates that he
wrote two letters to Superintendent McGinnis regarding the situation. In [*38]
one of the letters to McGinnis, plaintiff wrote, "It is still quite cold
and I'm not able to sleep like this." (Plaintiff's letter to Supt.
McGinnis dated December 5, 1999). He indicates that he was finally given two
new sheets on December 14, 1999.
In
support of the summary judgment motion, Morse indicates that he had nothing to
do with the laundry at Southport, and denies that plaintiff ever complained to
him about missing sheets or a cold cell. (Morse Affidavit, P26). Cleveland does
not dispute that plaintiff asked for new sheets, but he does deny that
plaintiff ever complained to him about his cell being cold or drafty, and
indicates that the temperature in plaintiff's cell was kept at 68 to 72 degrees
Fahrenheit. (Cleveland Affidavit PP15-17, 22). As to the temperature, however,
plaintiff indicates that "temperatures in cells do not exceed 68 degrees
in Winters with [outdoor] temps below twenty degrees." (Plaintiff's
Affidavit [# 64], P22). Shaw also denies that plaintiff ever complained to him
about the temperature in his cell. (Shaw Affidavit, P19). McGinnis indicates
that he does not recall ever receiving a letter from plaintiff regarding his
sheets. (See, McGinnis Affidavit, P98). Defendants also indicate that, pursuant
to prison rules, plaintiff was only supposed to place one set of sheets in the
laundry.
Much of the defendants' arguments as to this claim center upon the fact
that, pursuant to prison guidelines, inmates are not supposed to put both sets
of sheets into the laundry at the same time. By emphasizing this point, defendants
seem to be suggesting that it is plaintiff's own fault that he lost both sets
of sheets. The Court disagrees. First, defendants do not claim that plaintiff
destroyed his sheets, or that he was in any way responsible for the loss of his
two sets of sheets. Rather, it seems undisputed that the sheets were lost due
to the prison laundry's mistake. Second, plaintiff indicates in his affidavit
that "prisoners are so cold in D-Block, both sets [of sheets] are used
daily." (Plaintiff's Opposition [#
58], P92). Third, in Cleveland's affidavit, he states that if in inmate fails
to report a discrepancy with their laundry, they must pay to replace the
missing items. (Cleveland Affidavit [# 48], PP20-21). To the Court, this
suggests that if the inmate does immediately notify the prison of a laundry
discrepancy, that he will have the missing items replaced at no cost. However,
plaintiff did immediately notify the defendants, and apparently, as a result,
received no additional sheets.
Having considered all of the foregoing Applying the foregoing
principles, the Court finds that there is a triable issue of fact as to whether
or not plaintiff has demonstrated an 8th Amendment violation. Plaintiff claims
that for approximately three weeks during the winter he was kept in a cold,
drafty cell, without his bed sheets, and with only one blanket. Plaintiff does
not claim that he was deprived of his clothing. Clearly, these facts are not
nearly as egregious as most of the cases cited above. However, there are
several matters which are unclear in the record, such as the actual temperature
in plaintiff's cell, the condition of the sheets he received on November 26th,
the sufficiency of his blanket, and the condition of the allegedly drafty
window and its location in relation to plaintiff's cell. n9 Accordingly, the
Court will deny summary judgment on this claim and leave these issues to be
resolved at trial.
[*39]
Plaintiff's Claims Pertaining to the Alleged Assault
Plaintiff's sixteenth claim alleges that, on August 29, 1998, another
inmate attacked him, and that defendants Gantert, Furman, Hughson, and Ameigh
witnessed the attack but failed to take action to protect him. Defendants have
not moved for summary judgment as to this claim, and accordingly, that claim may
go forward.
Due
Process Claim Against Cerio
For
his nineteenth cause of action, plaintiff alleges that on September 8, 1998,
although he was innocent, defendant Cerio found him guilty at a disciplinary
hearing on charges of fighting and refusing to obey a direct order. The
evidence at the hearing showed that, on August 29, 1998, plaintiff was in the
facility visiting room, when he was attacked by another inmate. Plaintiff
knocked the other inmate to the ground and punched him repeatedly, despite being
told to stop by corrections officers. Plaintiff was found guilty and sentenced
to four months in the SHU, with a loss of four months of good time credit.
Plaintiff filed an appeal with Donald Selsky, DOCS Director of Special
Housing/Inmate Disciplinary Program, and stated, inter alia,
I
stated no objections since my hearing
officer did a fair job. I only ask you to review my appeal and be fair .... All
I ask is will you modify this, remove recommended 4 months loss of good time. I
don't care about 4 months SHU, I'll be here till 2006 anyway. I shouldn't lose
good time for defending myself.
(Plaintiff's Exhibits to Claim # 19)(emphasis
added). In response, Selsky reduced plaintiff's sentence to two months in SHU
and loss of two months of good time credit. (Id.).
Plaintiff now contends that Cerio's determination was erroneous, because
he was being attacked and had the right to defend himself. Plaintiff also
alleges that McGinnis conspired to assign Cerio as the hearing officer on the
case. McGinnis admits that he assigned Cerio to the case, but indicates that
hearing officers are assigned on a rotating basis. (McGinnis Affidavit, P80,
82). In response, plaintiff admits that hearing officers are assigned on a
rotating basis, but contends that "since defendant Cerio became a hearing
officer, not one hearing on Tier 3 for assault or fighting as been a 'not
guilty.'" (Plaintiff's Affidavit [# 70], PP80, 83).
The
law in this area is well settled:
A prisoner may not properly be deprived of a
cognizable liberty interest without due process of law. See, e.g., Wolff v. McDonnell, 418 U.S. 539, 555, 556,
94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974). In Superintendent, Massachusetts
Correctional Institution v. Hill, 472 U.S. 445, 105 S. Ct. 2768, 86 L. Ed. 2d
356 (1985), the Supreme Court ruled that where the prisoner claims he was
denied due process in a prison disciplinary hearing because he was found guilty
on the basis of insufficient evidence, the claim must be rejected if there was
at least "some evidence" to support the decision. Id. at 455, 105 S. Ct. 2768. The Court
stated that
ascertaining whether this standard is
satisfied does not require examination of the entire record, independent
assessment of the credibility of witnesses, or weighing of the evidence.
Instead, the relevant question is whether there is any evidence in the record
that could support the conclusion reached by the disciplinary board.
[*40]
Id. at 455-56, 105 S. Ct. 2768 (emphasis
added).
Gaston v. Coughlin, 249 F.3d 156, 163 (2d
Cir. 2001).
Moreover, "a prisoner punished after a disciplinary hearing has not
thereby been deprived of a liberty interest unless the punishment imposed an
atypical and significant hardship on him in relation to the ordinary incidents
of prison life." Id. at 162 (quoting
Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 132 L. Ed. 2d 418
(1995))(internal quotations omitted). There is no bright-line rule for
determining whether or not a period of confinement in SHU constitutes an
atypical and significant hardship. However, the Second Circuit has held that
101 days of confinement under normal New York State SHU conditions, does not,
as a matter of law, constitute such hardship. See, Colon v. Howard, 215 F.3d 227, 231 (2d Cir. 2000).
Applying the foregoing principles, the Court finds, first, upon its
review of the entire record, that plaintiff's sentence did not constitute an
atypical and significant hardship,
within the meaning of Sandin. Second, even assuming that such confinement did constitute
an atypical and significant hardship, Cerio would nonetheless be entitled to
summary judgment, since it is clear that his determination of plaintiff's guilt
was supported by some evidence. As to that, plaintiff does not dispute that he
fought with another inmate, rather, he merely opines that he was justified,
because he was not the initial aggressor. Moreover, although plaintiff now
claims that Cerio convicted him unjustly, he originally admitted that Cerio had
been fair. Accordingly, plaintiff's claim against Cerio is dismissed.
CONCLUSION
For
all of the foregoing reasons, plaintiff's motion for summary judgment [# 40] is
denied, and defendants' cross-motion for summary judgment [# 45] is granted in
part and denied in part. The following claims are dismissed: all Section 1985
claims; all denial of court access claims (3,4,5,7,8,25,26,28,30); all
retaliation claims against Gardner (6,21,23,30); and, the due process claim
against Cerio (19). Summary judgment is denied as to the following claims:
claims for interference with mail (1,2,25,27); the conditions of confinement
claim (29); and the retaliation claim against Shaw (32). Defendants did not
seek summary judgment as to the 16th claim. The Court will issue a separate
Pretrial Order, and the parties are advised that this matter may be scheduled
for trial upon two weeks notice. The Clerk of the Court is directed to delete
Richard Cerio's name from the caption of this action.
So
ordered.
Dated: Rochester, New York
March 12, 2002
ENTER:
CHARLES J. SIRAGUSA
United States District Judge
FOOTNOTES:
n1 The Complaint originally
contained thirty-two causes of action, but the balance were dismissed in a
prior Decision and Order.
n2 Plaintiff indicates, in his affidavit, that defendant Morse
defaulted as to claims 3 and 29, by failing to deny them in his Answer,
however, that is incorrect. See, Morse Answer [# 20], PP1-4).
n3 Ironically, accepting
plaintiff's factual statements as true, many of the claims in this action would
have been included in an amended complaint in 98-CV-6554, but for alleged
interference by the defendants. (As will be discussed further below, however,
this alleged interference did not cause plaintiff any actual injury, since he
opted not to take advantage of additional opportunities to amend the complaint,
and instead agreed to settle the action.)
n4 The seventh claim of the
complaint alleges that defendants returned a package of mail to the sender
without notifying plaintiff, but it is clear from the record, and plaintiff
admits, that the papers in claim seven are the same papers referred to in the
fifth claim, which were not returned to the sender, but which were delayed in
being delivered to plaintiff, allegedly because defendants wanted to deny plaintiff
access to the court in connection with case number 98-CV-6554. (See, Gardner
Affidavit [# 52], P56; Moore Affidavit [# 58], P32).
n5 The fourth claim of the
complaint actually only purports to allege a cause of action against McGinnis,
but since it also refers to Morse, the Court, liberally construing the pro se
complaint, will treat it as a claim against both McGinnis and Morse.
n6 It may be that, in his twenty-fifth and twenty-eighth claims,
plaintiff is actually alleging that defendants tried to deny him court access
not in connection with case number 98-CV-6554, but
in connection with the instant case. To the extent that may be the case, those claims must nonetheless be dismissed, since plaintiff has still not demonstrated any actual injury. Rather, it is clear that plaintiff has been fully able to prosecute this action, and in so doing has managed to
file more documents and
exhibits, many of them repetitive, than any other litigant in the Court's
recent memory.
n7 As for whether or not the
letter contained coding, plaintiff indicates: "On July 7, 1999 a letter
containing coding, along with a money order, returned per directive 4422."
(Id., P62).
n8 Although this action was
not commenced until February 28, 2000, it appears that the documents plaintiff
sent to be copied were part of a draft complaint in this action, which included
the twenty-sixth claim against Murphy.
n9 In their memorandum of
law, defendants make a passing reference to a qualified immunity defense:
"At the very least, given the facts regarding the temperatures, defendants
are entitled to qualified immunity." (Memo of Law [# 47], p. 32). However,
even if the court were to treat this defense as having been properly briefed,
there is an issue of fact as to the temperature in plaintiff's cell.