Opinion
20-CV-8722 (LLS)
03-09-2021
GABINO GENAO, Plaintiff, v. CITY OF NEW YORK; MDC MAILROOM OFFICER PEREZ; MAILROOM OFFICER ESPINOSA; MDC WARDEN BANKS; MDC DEPUTY OF SECURITY SHANNON; MDC CAPTAIN COTTMAN; MDC PROGRAMS CAPTAIN JOHN/JANE DOE; OSIU CHIEF STUKES; SOCIAL SERVICES GLADDEN; SOCIAL SERVICES FLORES, Defendants.
ORDER TO AMEND :
Plaintiff, currently detained in the Manhattan Detention Complex (MDC), brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants violated his constitutional rights by tampering with his legal mail on April 20, 2020, May 20, 24, 2020, July 8, 9, 2020, and August 12, 13, 2020. By order dated March 5, 2021, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis (IFP). For the reasons set forth below, the Court grants Plaintiff leave to file an amended complaint within sixty days of the date of this order.
Prisoners are not exempt from paying the full filing fee even when they have been granted permission to proceed IFP. See 28 U.S.C. § 1915(b)(1).
STANDARD OF REVIEW
The Prison Litigation Reform Act requires that federal courts screen complaints brought by prisoners who seek relief against a governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The Court must dismiss a prisoner's IFP complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). The Court must also dismiss a complaint if the Court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).
While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the "strongest [claims] that they suggest," Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the "special solicitude" in pro se cases, id. at 475 (citation omitted), has its limits - to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief.
The Supreme Court has held that under Rule 8, a complaint must include enough facts to state a claim for relief "that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true "[t]hreadbare recitals of the elements of a cause of action," which are essentially just legal conclusions. Twombly, 550 U.S. at 555. After separating legal conclusions from well-pleaded factual allegations, the Court must determine whether those facts make it plausible - not merely possible - that the pleader is entitled to relief. Id.
BACKGROUND
Plaintiff Gabino Genao alleges the following facts. On several dates between April 20, 2020 through August 13, 2020, Defendants tampered with his legal mail. Plaintiff asserts that his legal mail was opened outside of his presence. He asserts that paperwork was tampered with, and that he did not sign the logbook for that mail, but the logbook reflected that the mail was delivered to him. Plaintiff asserts further that he received legal mail on July 18, 2020, but that the postage on the envelope was dated June 18, 2020. When Plaintiff opened the envelope, the cover letter was a copy and not an original. He asserts that it looked like the contents were not complete and that it appeared that "Security read and took out important documentation pertaining to an SJO order." (ECF No. 2 at 5.) Plaintiff looked through the logbook and discovered that the logbook reflected that mail was delivered to Plaintiff that he never received.
On or about July 9, 2020, Plaintiff received time-sensitive mail back from the mailroom. Plaintiff again completed the necessary paperwork for the mail to be sent out. Plaintiff was told that his mail would be sent out the next day, and it was acknowledged that the mail was in fact sent out, but on August 10, 2020, Plaintiff received the mail back again. Plaintiff asserts further that on or about September 23, 2020, he received legal mail with a postage date of August 26, 2020. Plaintiff alleges that he spoke with Defendant Shannon and Defendant Banks about the problems with his mail. He also filed numerous grievances and complaints about the problems with his mail. Plaintiff alleges that Defendants' actions are a "deliberate obstruction of [his] right to communicate with the outside world [in] direct retaliation by the Chief of the Department." (Id. at 8.) He alleges further that because of Defendants' actions, he was unable "to seek legal remedy that [he] would've been entitled to." (Id. at 9.)
DISCUSSION
A. Mail Interference Claims
A prisoner's First Amendment rights encompass the right to "adequate, effective and meaningful" access to the courts and to the free flow of incoming and outgoing mail. Bounds v. Smith, 430 U.S. 817, 822 (1977); Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003). "[C]ourts have consistently afforded greater protection to legal mail than to non-legal mail, as well as greater protection to outgoing mail than to incoming mail." Davis, 320 F.3d at 351 (citing Thornburgh v. Abbott, 490 U.S. 401, 413 (1989)).
Plaintiff' s allegations concerning his legal mail implicates both an access-to-courts claim and a general mail tampering claim.
1. Access-to-courts Claim
Prisoners have "a constitutional right of access to the courts [that] gives rise to a number of derivative rights, including the right to access legal materials to prepare a case, and the right of indigent inmates to be provided with paper and pens to draft legal documents and stamps to mail them." Collins v. Goord, 581 F. Supp. 2d 563, 573 (S.D.N.Y. 2008) (citing Bounds, 420 U.S. at 824-28). Protecting these rights "require[] prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." Bourdon v. Loughren, 386 F.3d 88, 92-93 (2d Cir. 2004) (quoting Bounds, 420 U.S. at 821, 828). But assistance from prison authorities is "only the means for ensuring a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts." Lewis v. Casey, 518 U.S. 343, 351 (1996) (internal quotation marks omitted).
Access to the courts does not require prison authorities to furnish inmates with unlimited access to any and all resources that might support a prisoner in presenting his legal claim. Id. at 355. A claim that an individual's right of access to the courts has been denied may arise from the frustration or hindrance of "a litigating opportunity yet to be gained" (forward-looking access claim) or from the loss or inadequate settlement of a meritorious suit that cannot now be tried (backward-looking claim). Christopher v. Harbury, 536 U.S. 403, 412-15 (2002).
To state a claim for denial of access to the courts, a plaintiff must allege facts showing that the defendant's conduct: (1) "was deliberate and malicious," and (2) "resulted in actual injury to the plaintiff such as the dismissal of an otherwise meritorious legal claim." Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003) (internal quotation marks omitted); see also Harbury, 536 U.S. at 415. To demonstrate actual injury, a plaintiff must allege: (1) a valid underlying cause of action separate from the right-of-access claim; and (2) frustration or hindrance of the litigation caused by the defendant' s actions. See Harbury, 546 U.S. at 415. 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." Jermosen v. Coughlin, 877 F. Supp. 864, 871 (S.D.N.Y. 1995) (citing Jones v. Smith, 784 F.2d 149, 151- 52 (2d Cir. 1986)).
Because Plaintiff does not suggest any prejudice to an ongoing legal proceeding, his allegations are insufficient to state a claim that his right to access the courts has been violated. For example, Plaintiff does not detail the nature of his legal mail or the harm caused by Defendants' alleged actions.
2. Mail-tampering Claim
To state a claim based on mail tampering, a plaintiff must allege that the incidents: (1) suggest an ongoing practice of censorship unjustified by a substantial government interest, or (2) have unjustifiably chilled the prisoner's right of access to the court or impaired his legal representation. Davis, 320 F.3d at 351. "[A]n isolated incident of mail tampering is usually insufficient to establish a constitutional violation." Id. at 351-52. But as few as two incidents of mail tampering may constitute a First Amendment violation if indicative of "regular" and "unjustifiable" interference with a prisoner's mail. Id. at 351; see Washington v. James, 782 F.2d 1134, 1139 (2d Cir. 1986).
Plaintiff does not allege enough facts suggesting that Defendants interfered with his mail in a manner that rises to the level of a constitutional violation because he does not state that Defendants subjected him to regular and unjustifiable interference with his mail that affected his ability to access the courts. Plaintiff is no stranger to this Court, and a review of the Public Access to Court Electronic Records (PACER) system reveals that from June 23, 2020, through December 14, 2020, Plaintiff filed seven actions in this Court.
The Court therefore grants Plaintiff leave to amend his complaint to allege facts suggesting that Defendants' actions violated his constitutional rights. Plaintiff must set forth all facts concerning the legal mail that he was prevented from sending and the prejudice, if any, that resulted from Defendants not sending that mail. Plaintiff must also allege facts demonstrating that Defendants regularly and unjustifiably interfered with his ability to access the courts.
LEAVE TO AMEND
Plaintiff is granted leave to amend his complaint to provide more facts about his claims. First, Plaintiff must name as the defendants in the caption and in the statement of claim those individuals who were allegedly involved in the deprivation of his federal rights. If Plaintiff does not know the name of a defendant, he may refer to that individual as "John Doe" or "Jane Doe" in both the caption and the body of the amended complaint. The naming of John Doe defendants, however, does not toll the three-year statute of limitations period governing this action and Plaintiff shall be responsible for ascertaining the true identity of any "John Doe" defendants and amending his complaint to include the identity of any "John Doe" defendants before the statute of limitations period expires. Should Plaintiff seek to add a new claim or party after the statute of limitations period has expired, he must meet the requirements of Rule 15(c) of the Federal Rules of Civil Procedure.
The caption is located on the front page of the complaint. Each individual defendant must be named in the caption. Plaintiff may attach additional pages if there is not enough space to list all of the defendants in the caption. If Plaintiff needs to attach an additional page to list all defendants, he should write "see attached list" on the first page of the Amended Complaint. Any defendants named in the caption must also be discussed in Plaintiff's statement of claim.
For example, a defendant may be identified as: "Correction Officer John Doe #1 on duty August 31, 2010, at Sullivan Correctional Facility, during the 7-3 p.m. shift." --------
In the "Statement of Claim" section of the amended complaint form, Plaintiff must provide a short and plain statement of the relevant facts supporting each claim against each defendant. If Plaintiff has an address for any named defendant, Plaintiff must provide it. Plaintiff should include all of the information in the amended complaint that Plaintiff wants the Court to consider in deciding whether the amended complaint states a claim for relief. That information should include:
a) the names and titles of all relevant people;
b) a description of all relevant events, including what each defendant did or failed to do, the approximate date and time of each event, and the general location where each event occurred;
c) a description of the injuries Plaintiff suffered; and
d) the relief Plaintiff seeks, such as money damages, injunctive relief, or declaratory relief.
Essentially, Plaintiff's amended complaint should tell the Court: who violated his federally protected rights and how; when and where such violations occurred; and why Plaintiff is entitled to relief.
Because Plaintiff's amended complaint will completely replace, not supplement, the original complaint, any facts or claims that Plaintiff wants to include from the original complaint must be repeated in the amended complaint.
CONCLUSION
The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket.
Plaintiff is granted leave to file an amended complaint that complies with the standards set forth above. Plaintiff must submit the amended complaint to this Court's Pro Se Intake Unit within sixty days of the date of this order, caption the document as an "Amended Complaint," and label the document with docket number 20-CV-8722 (LLS). An Amended Civil Rights Complaint form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and he cannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief may be granted. SO ORDERED. Dated: March 9, 2021
New York, New York
/s/_________
Louis L. Stanton
U.S.D.J. __________ Write the full name of each plaintiff. -against- __________ Write the full name of each defendant. If you cannot fit the names of all of the defendants in the space provided, please write "see attached" in the space above and attach an additional sheet of paper with the full list of names. The names listed above must be identical to those contained in Section IV. ___CV__________
(Include case number if one has been assigned) AMENDED COMPLAINT
(Prisoner) Do you want a jury trial?
[ ] Yes [ ] No
NOTICE
The public can access electronic court files. For privacy and security reasons, papers filed with the court should therefore not contain: an individual's full social security number or full birth date; the full name of a person known to be a minor; or a complete financial account number. A filing may include only: the last four digits of a social security number; the year of an individual's birth; a minor's initials; and the last four digits of a financial account number. See Federal Rule of Civil Procedure 5.2.
I. LEGAL BASIS FOR CLAIM
State below the federal legal basis for your claim, if known. This form is designed primarily for prisoners challenging the constitutionality of their conditions of confinement; those claims are often brought under 42 U.S.C. § 1983 (against state, county, or municipal defendants) or in a "Bivens" action (against federal defendants). [ ] Violation of my federal constitutional rights [ ] Other: __________
II. PLAINTIFF INFORMATION
Each plaintiff must provide the following information. Attach additional pages if necessary. __________
First Name __________
Middle Initial __________
Last Name __________ State any other names (or different forms of your name) you have ever used, including any name you have used in previously filing a lawsuit. __________ Prisoner ID # (if you have previously been in another agency's custody, please specify each agency and the ID number (such as your DIN or NYSID) under which you were held) __________
Current Place of Detention __________
Institutional Address __________
County, City __________
State __________
Zip Code
III. PRISONER STATUS
Indicate below whether you are a prisoner or other confined person: [ ] Pretrial detainee [ ] Civilly committed detainee [ ] Immigration detainee [ ] Convicted and sentenced prisoner [ ] Other: __________
IV. DEFENDANT INFORMATION
To the best of your ability, provide the following information for each defendant. If the correct information is not provided, it could delay or prevent service of the complaint on the defendant. Make sure that the defendants listed below are identical to those listed in the caption. Attach additional pages as necessary. Defendant 1:
__________
First Name
__________
Last Name
__________
Shield #
__________
Current Job Title (or other identifying information)
__________
Current Work Address
__________
County, City
__________
State
__________
Zip Code Defendant 2:
__________
First Name
__________
Last Name
__________
Shield #
__________
Current Job Title (or other identifying information)
__________
Current Work Address
__________
County, City
__________
State
__________
Zip Code Defendant 3:
__________
First Name
__________
Last Name
__________
Shield #
__________
Current Job Title (or other identifying information)
__________
Current Work Address
__________
County, City
__________
State
__________
Zip Code Defendant 4:
__________
First Name
__________
Last Name
__________
Shield #
__________
Current Job Title (or other identifying information)
__________
Current Work Address
__________
County, City
__________
State
__________
Zip Code
V. STATEMENT OF CLAIM
Place(s) of occurrence: __________ Date(s) of occurrence: __________
FACTS:
State here briefly the FACTS that support your case. Describe what happened, how you were harmed, and how each defendant was personally involved in the alleged wrongful actions. Attach additional pages as necessary. __________
INJURIES:
If you were injured as a result of these actions, describe your injuries and what medical treatment, if any, you required and received. __________
VI. RELIEF
State briefly what money damages or other relief you want the court to order. __________
VII. PLAINTIFF'S CERTIFICATION AND WARNINGS
By signing below, I certify to the best of my knowledge, information, and belief that: (1) the complaint is not being presented for an improper purpose (such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are supported by existing law or by a nonfrivolous argument to change existing law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the complaint otherwise complies with the requirements of Federal Rule of Civil Procedure 11. I understand that if I file three or more cases while I am a prisoner that are dismissed as frivolous, malicious, or for failure to state a claim, I may be denied in forma pauperis status in future cases. I also understand that prisoners must exhaust administrative procedures before filing an action in federal court about prison conditions, 42 U.S.C. § 1997e(a), and that my case may be dismissed if I have not exhausted administrative remedies as required. I agree to provide the Clerk's Office with any changes to my address. I understand that my failure to keep a current address on file with the Clerk's Office may result in the dismissal of my case. Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to proceed without prepayment of fees, each plaintiff must also submit an IFP application. __________
Dated
__________
Plaintiff's Signature __________
First Name __________
Middle Initial __________
Last Name __________
Prison Address __________
County, City __________
State __________
Zip Code Date on which I am delivering this complaint to prison authorities for mailing: __________