Opinion
05-CV-00017S(Sr).
March 1, 2006.
REPORT, RECOMMENDATION AND ORDER
This case was referred to the undersigned by the Hon. William M. Skretny, pursuant to 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #13.
Currently before the Court is plaintiff's motion for summary judgment (Dkt. #10); defendant Frances Gonzalez' motion for summary judgment (Dkt. #17); and plaintiff's motions for default judgment against defendants J. Johnson (Dkt. #20), Booker (Dkt. #21), and John Doe. Dkt. #22. For the following reasons, it is recommended that plaintiff's motion for summary judgment be denied; defendant Gonzales' motion for summary judgment be granted; and plaintiff's motions for default judgment be denied.
BACKGROUND
Plaintiff, Luis Nieves, an inmate at Auburn Correctional Facility, paid the filing fee and commenced this action, pro se, pursuant to 42 U.S.C. § 1983, in the Eastern District of New York on November 12, 2004. Dkt. ##1 3. The Clerk of the Court issued Summons' for all four of the defendants, to wit, Frances Gonzalez; C.O. Booker; C.O.J. Johnson; and John Doe, on November 12, 2004. Dkt. #1. Plaintiff filed a Return of Service form for each defendant with the Clerk of the Court on December 3, 2004. Dkt. #2. Each form indicates that plaintiff executed service by mail from his address at P.O. Box 618, 135 State Street, Auburn, New York. Dkt. #2. Receipts from the United States Postal Service, Express Mail, are attached to these forms. Dkt. #2. Three of these forms were addressed to defendants at the Attica Correctional Facility, P.O. Box 149, Attica, New York 14011 and the fourth was addressed to Frances Gonzalez, New York Police Department, 480 Knickerbocker Avenue, Brooklyn, NY 11237. Dkt. #2.Plaintiff's Complaint alleges that on June 28, 2004, while in protective custody at the Attica Correctional Facility ("Attica"), Corrections Officer ("C.O.") J. Johnson conducted a random search of plaintiff's cell. Dkt. #3. During this search, C.O. Johnson and the porter accompanying him, a gang leader named Billy, stole plaintiff's property, including "addresses, phone numbers, bank notes, non legal and legal letters. . . ." Dkt. #3. Billy was subsequently observed passing these addresses and phone numbers to other members of his gang. Dkt. #3. C.O. Johnson and Billy then began "to steal" all plaintiff's incoming and outgoing mail with his wife, family, friends, attorneys, and law enforcement agencies. Dkt. #3. Billy impersonated plaintiff and responded to his mail. Dkt. #3.
On August 4, 2004, plaintiff alleges that he handed a sealed letter of complaint addressed to the Superintendent or Sergeant of Attica to a correctional counselor for the Special Housing Unit named as defendant John Doe. Dkt. #3. This individual allegedly diverted the grievance to C.O. Booker, who gave it to Billy. Dkt. #3.
Plaintiff also alleges that on August 5, 2004, plaintiff gave C.O. Booker a letter addressed to the New York City Police Department, which contained the address of his wife and family members, and thereafter observed C.O. Booker, C.O. Johnson and Billy passing xeroxed copies of the letter to other inmates, who wrote letters to his wife, family members and the New York City Police Department, thereby misleading the New York Police Department's investigations and endangering lives. Dkt. #3.
On August 7, 2004, plaintiff states that New York City Police Officer Frances Gonzalez signed for a letter sent by plaintiff and then returned the letter to sender without investigating the allegations contained within the letter. Dkt. #3. Plaintiff also complains that Officer Gonzalez' failure to investigate caused the Superintendent of Attica to restrict plaintiff's communication with his wife. Dkt. #3.
In a Memorandum and Order filed January 7, 2005, United States District Judge Gershon transferred this matter, sua sponte, to the Western District of New York. Dkt. #3.
In support of his motion for summary judgment, plaintiff attached a copy of his August 5, 2004 letter to the 83rd Precinct of the New York City Police Department, which requested that the police send undercover officers to the home of his wife and family members to remove them before they were kidnaped and murdered by gang members. Dkt. #10, pp. 16-17. Plaintiff also attached a copy of a memorandum from the Superintendent of Auburn, dated October 12, 2004, informing plaintiff that Maya Jones Nieves had informed the facility that she did not wish to receive any communication from him, either in writing or by telephone, and warning plaintiff that disciplinary action would be taken against him if he attempted any further contact with her. Dkt. #10, pp. 24 39. Plaintiff also submitted a copy of a misbehavior report arising from plaintiff's violation of an order preventing him from any communication with Officer Gonzalez after plaintiff sent her mail on January 27, 2004. Dkt. #10, p. 29. Plaintiff was found not guilty of harassment, but was sentenced to 75 days in the Special Housing Unit ("SHU"), for refusing a direct order. Dkt. #10, p. 30.
On October 16, 2004, Maya Jones Nieves filed a complaint with the 83rd Precinct alleging that plaintiff sent her threatening letters. Dkt. #17, Exh. H.
According to the misbehavior report, plaintiff received notice of the inclusion of Officer Gonzalez on his negative correspondence list on December 10, 2004. Dkt. #10, p. 29.
In support of her motion for summary judgment, defendant Gonzales affirms that she is a New York City Police Officer assigned to the 83rd Precinct. Dkt. #17, Exh. B, ¶ 2. On August 7, 2004, Officer Gonzalez was assigned to the reception area of the 83rd Precinct, where her job duties included signing for incoming mail. Dkt. #17, Exh. B, ¶ 3. She did not open or distribute such mail, but placed it in a basket for a Police Administrative Assistant to open and distribute. Dkt. #17, Exh. B, ¶ 3. She did not open or read plaintiff's letter dated August 5, 2004. Dkt. #17, Exh. B, ¶ 4.
Officer Gonzalez received and opened letters from plaintiff dated September 19, 2004 and October 20, 2004 which were addressed to her personally. Dkt. #17, Exh. B, ¶ 5. Because she did not understand the meaning of the letters, which contained cryptic references to gang activity and violence, and did not know plaintiff or understand why he was writing to her, Officer Gonzalez brought these letters to the attention of her supervisors and filed a complaint with the 83rd Precinct. Dkt. #17, Exh. B, ¶¶ 6-9.
The September 19, 2004 letter states, in part,
On Aug. 5th 2004 I sent a certified mail w/return receipt and haven't had a response regards [sic] my calls of emergencies. I sent a letter to have undercover officers to response [sic] to a possible on-going: extortion, kidnapping, hostage or any kind of illegal activities that would endangered [sic] a child's welfare. I came to find out that it was all true . . . and as a results [sic] of officers going into the apartment gunfire erupted and 2 of my children were murdered by suspects and wounding my wife by a gun shot.
Dk t. #17, Exh. E.
The October 20, 2004 letter states, in part,
On August 5th, 2004 I sent your station house a certified mail with return receipt it was return [sic] — sign by Frances Gonzales.
My mail were [sic] tamper with, and possibly or not sent to your station house with a letter complaint or not. No response was made regarding the matter.
I am still investigating this matter about the certified mail of August 5th, 2004.
Without your assistance, I'm obligated to sue this Police Department to obtain what I'm looking into regarding the certified mail of August 5th, 2004.
* * *
Also, shortly thereafter, other prisoners wrote letters to your precinct house regarding Maya Jones. . . .
Dk t. #17, Exh. F.
On November 1, 2004, Officer Gonzalez obtained the general number for the New York State Inspector General's Office and informed Inspector Frank Biggit that she was receiving unwanted personal correspondence from a prison inmate. Dkt. #17, Exh. B, ¶ 10. On November 15, 2004, Officer Gonzalez received a copy of the complaint in this action, by, mail, at the 83rd Precinct. Dkt. #17, Exh. B, ¶ 11.
On December 22, 2004, Officer Gonzales received a letter from officials at Auburn stating that plaintiff would not be allowed to write to her. Dkt. ##17, Exh. B, ¶ 12 Exh. G. On January 24, 2005, Officer Gonzalez received a copy of four documents labeled, "Interrogatories," from plaintiff. Dkt. #17, Exh. B, ¶ 15. She contacted Inspector Biggit, who subsequently asked Officer Gonzalez to testify at plaintiff's disciplinary hearing. Dkt. #17, Exh. B, ¶ 16. Officer Gonzalez declined to participate in plaintiff's disciplinary hearing. Dkt. #17, Exh. B, ¶ 16.
DISCUSSION AND ANALYSIS
Motion for Summary Judgment
Summary judgment is appropriate "if 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 judgment as a matter of law." Fed.R.Civ.P. 56(c). "In reaching this determination, the court must assess whether there are any material factual issues to be tried while resolving ambiguities and drawing reasonable inferences against the moving party, and must give extra latitude to a pro se plaintiff." Thomas v. Irvin, 981 F. Supp. 794, 799 (W.D.N.Y. 1997) (internal citations omitted).
A fact is "material" only if it has some effect on the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir. 1998). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248; see Bryant v. Maffucci, 923 F.2d 979 (2d Cir.), cert. denied, 502 U.S. 849 (1991).
Once the moving party has met its burden of "demonstrating the absence of a genuine issue of material fact, the nonmoving party must come forward with enough evidence to support a jury verdict in its favor, and the motion will not be defeated merely upon a 'metaphysical doubt' concerning the facts, or on the basis of conjecture or surmise." Bryant, 923 F.2d at 982. A party seeking to defeat a motion for summary judgment
must do more than make broad factual allegations and invoke the appropriate statute. The [party] must also show, by affidavits or as otherwise provided in Rule 56 of the Federal Rules of Civil Procedure, that there are specific factual issues that can only be resolved at trial.Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).
Pursuant to Fed.R.Civ.P. 56(e), affidavits in support of or in opposition to a motion for summary judgment "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Thus, affidavits "must be admissible themselves or must contain evidence that will be presented in an admissible form at trial." Santos v. Murdock, 243 F.3d 681, 683 (2d Cir. 2001), citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); see also H. Sand Co. v. Airtemp Corp., 934 F.2d 450, 454-55 (2d Cir. 1991) (hearsay testimony that would not be admissible if testified to at trial may not properly be set forth in an affidavit).
Duty to Investigate
Defendant Frances Gonzalez seeks summary judgment on the ground that she had no duty to investigate plaintiff's complaint. Dkt. #18, pp. 8-12.
As the Supreme Court of the United States has repeatedly noted, "§ 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred." Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotations omitted). "To state a claim for relief in an action brought under § 1983, [plaintiffs] must establish that they were deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law." American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). The Court must determine the specific constitutional right allegedly infringed before it can assess whether the defendant violated that right. Graham, 490 U.S. at 394.
The Supreme Court of the United States has "recognized that the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual." DeShaney v. Winnebago Soc. Servs., 489 U.S. 189, 196 (1989). As a result, "a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause." Id. at 197; see also Castle Rock v. Gonzales, ___ U.S. ___, 162 L.Ed.2d 658 (2005) (no property interest in police enforcement of a restraining order).
More specifically, courts within the Second Circuit have determined that "[t]here is . . . no constitutional right to an investigation by government officials." Bal v. City of New York, 1995 WL 46700, at *2 (S.D.N.Y. Feb. 7, 1995), quoting Dep't of Investigation of the City of New York v. Stone, 1992 WL 23202, at *2 (S.D.N.Y. Feb 4, 1992), aff'd 99 F.3d 402 (1995), cert. denied, 517 U.S. 1225 (1996). In Lewis v. Gallivan, for example, the Hon. David G. Larimer determined that plaintiff, an inmate at the Wende Correctional Facility, had "no cognizable claim" that the Erie County Sheriff and Erie County District Attorney, inter alia, "were under an obligation to investigate or prosecute" plaintiff's claims that correctional officers had threatened him. 315 F. Supp.2d 313, 317 (W.D.N.Y. 2004).
Reading the pro se complaint liberally, plaintiff alleges that Officer Frances Gonzalez failed to discharge her duty to investigate plaintiff's allegations of threats against his wife and family members and that, as a result of this failure, plaintiff's relationship with his wife was damaged. Dkt. #3. Since Officer Gonzalez was under no duty to investigate these claims, it is recommended that her motion for summary judgment dismissing plaintiff's complaint be granted.
Retaliation
In his motion for summary judgment, plaintiff claims that he was subjected to 75 days in SHU in retaliation for filing this lawsuit. Dkt. #10, p. 2. Officer Gonzalez asserts that she would be entitled to summary judgment on any claim of retaliation because her complaint to the Inspector General was not made under color of law and was not motivated by plaintiff's lawsuit. Dkt. #18, pp. 12-18.
Since the alleged retaliation followed the filing of the complaint, the complaint does not include a claim of retaliation. Accordingly, there is no such claim upon which the Court can grant or deny summary judgment. Thus, the appropriate question is whether plaintiff should be permitted to amend his complaint to assert a cause of action for retaliation. See Beckman v. United States Postal Serv., 79 F. Supp.2d 394, 407 (S.D.N.Y. 2000) (Although it is inappropriate to raise new claims in submissions in opposition to a summary judgment motion, the court may grant leave to amend the complaint to incorporate such claims).
Fed.R.Civ.P. 15(a) provides that a party may amend a pleading by leave of court or by written consent of the adverse party. Leave to amend is to be "freely granted" unless the party seeking leave has acted in bad faith, there has been an undue delay in seeking leave, there will be unfair prejudice to the opposing party if leave is granted, or the proposed amendment would be futile. Foman v. Davis, 371 U.S. 178, 182 (1962); State Teachers Retirement Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981); Fed.R.Civ.P. 15(a). The decision to grant or deny a motion for leave to amend a pleading is within the discretion of the district court. Foman, 371 U.S. at 182.
To establish a prima facie case of First Amendment retaliation, a plaintiff must establish: (1) that the speech or conduct at issue was protected; (2) that the defendant took adverse action against the plaintiff; and (3) that there was a causal connection between the protected speech and the adverse action. Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003).
A prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 125 (1977). However, prisoners do not have a right to unrestricted correspondence nor do they have a right to be free from reasonable punishment for violation of prison rules. Malsh v. Garcia, 971 F. Supp. 133, 137 (S.D.N.Y. 1997). DOCS Directive No. 4422, which permits disciplinary action against inmates who submit mail to individuals on their negative correspondence list, is a permissible restriction of an inmate First Amendment rights. See Hall v. Curran, 818 F.2d 1040, 1044 (2d Cir. 1987) ("Directive 4422 conforms to the Martinez requirement that the substantial government interest advanced must be unrelated to the suppression of expression"), citing Procunier v. Martinez, 416 U.S. 396, 413 (1974); Marsh, 971 F. Supp. at 137-38 (same); see also, Grant v. Hollins, 65 Fed. Appx., 351 (2003) (unpublished summary order). In addition, although prisoners retain the constitutional right to meaningful access to the courts, prisoners alleging violation of this right in the context of a § 1983 action must demonstrate actual harm, e.g., that a "nonfrivolous legal claim had been frustrated or was being impeded." Lewis v. Casey, 518 U.S. 343, 353 (1996) (footnotes omitted); see Bounds v. Smith, 430 U.S. 817, 823 (1977).
In the instant case, plaintiff successfully filed his lawsuit and mailed the summons and complaint to Officer Gonzalez prior to the inclusion of Officer Gonzalez on his negative correspondence list. Thus, his ability to access the Court to file his Complaint was not impeded in any way. Plaintiff's decision to serve interrogatories upon Officer Gonzalez subsequent to her inclusion on his negative correspondence list does not impact his right to meaningful access to the courts, as plaintiff does not need to communicate directly with Officer Gonzalez in order to prosecute his claim. See Malsh, 971 F. Supp. at 137 (plaintiff's First Amendment rights were not violated by disciplinary action taken against plaintiff who attempted to send documents regarding pending paternity suit to a woman on his negative correspondence list). Plaintiff could have simply waited for appearance of counsel on behalf of Officer Gonzalez before serving discovery demands or, if he felt there was an immediate need for such discovery, he could have advised the Court as to his inability to serve discovery demands upon Officer Gonzalez directly. Since the inclusion of Officer Gonzalez on plaintiff's negative correspondence list had no adverse effect upon the status of this action, and plaintiff had no independent constitutional right to correspond with her, it is recommended that plaintiff not be permitted to amend his complaint to assert a claim of retaliation.
Motions for Default Judgment
Plaintiff moves for default judgment against defendants J. Johnson, Booker, and John Doe. Dkt. ##20-22.
"The procedural steps contemplated by the Federal Rules of Civil Procedure following a defendant's failure to plead or defend as required by the Rules begin with the entry of a default by the clerk upon a plaintiff's request." Meehan v. Snow, 652 F.2d 274, 276 (2d Cir. 1981); see Fed.R.Civ.P. 55(a) ("When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party's default."). "Then, pursuant to Rule 55(c), the defendant has an opportunity to seek to have the default set aside." Id.; see Fed.R.Civ.P. 55(c) ("For good cause shown the court may set aside an entry of default . . ."). "If that motion is not made or is unsuccessful, and if no hearing is needed to ascertain damages, judgment by default may be entered by the court or, if the defendant has not appeared, by the clerk." Id.; see Fed.R.Civ.P. 55(b).
Since the plaintiff has not moved for entry of default, the motion for default judgment is premature. See Multani v. United States Dep't of Justice, 1998 WL 951813, No. 97-CV-628A, at * (W.D.N.Y. 1998) (plaintiff not entitled to a default judgment where the initial step of securing the entry of default was omitted). Moreover, entry of default would not be warranted because it is clear that plaintiff's attempted service of the complaint was insufficient to obtain personal jurisdiction over the defendants. See Multani, 1998 WL 951813, at *3; Kearney v. New York State Legislature, 103 F.R.D. 625, 628-29 (E.D.N.Y. 1984).
The Return of Service form provided to the plaintiff by the court specifically advises plaintiff to see Rule 4 of the Federal Rules of Civil Procedure with respect to who may serve a summons. Dkt. #2. Fed.R.Civ.P. 4(c)(2) provides that service of a summons and complaint "may be effected by any person who is not a party and who is at least 18 years of age." However, the Return of Service forms indicate that plaintiff attempted to serve the summons and complaint himself. Dkt. #2. In addition, although plaintiff checked the box indicating that the summons and complaints were served personally upon the defendants, the attached receipts from the United States Postal Service, Express Mail, indicate that they were sent by mail to the Attica Correctional Facility. Dkt. #2. This is insufficient. See Fed.R.Civ.P. 4) (d) (e); N.Y.C.P.L.R. 308.
"Where service of process is insufficient, the courts have broad discretion to dismiss the action or to retain the case but quash the service that has been made on defendant." Overhoff v. Health Care Plan, No. 99-CV-152A, 1999 WL 605706, at * 2 (W.D.N.Y. June 22, 1999), quoting Montalbano v. Easco Hand Tools, 766 F.2d 737, 740 (2d Cir. 1985). "Where there is a strong probability that process can be properly effectuated, the service should be quashed and the action preserved." Id., quoting Montalbano, 766 F.2d at 740. Here, there is a reason to believe that plaintiff will be able to properly serve defendants Johnson and Booker and that he will be able to discern the identity of the correctional counselor for the Special Housing Unit on duty on August 24, 2004 through discovery so as to obtain proper service over the John Doe defendant. Accordingly, it is recommended that service upon these defendants be quashed and plaintiff afforded 120 days to file proof of service with the court in accordance with Fed.R.Civ.P. 4(l) (m). See id.
Inasmuch as it does not appear that plaintiff's complaint was screened in accordance with 28 U.S.C. § 1915A by the Eastern District of New York, the Court notes that plaintiff's remaining allegations withstand such criteria.
CONCLUSION
For the foregoing reasons, it is RECOMMENDED that plaintiff's motion for summary judgment (Dkt. #10), be DENIED; defendant Gonzalez' motion for summary judgment (Dkt. #17), be GRANTED; plaintiff's motion for default judgment against defendant J. Johnson (Dkt. #20), be DENIED; plaintiff's motion for default judgment against defendant Booker (Dkt. #21), be DENIED; and plaintiff's motion for default judgment against defendant John Doe (Dkt. #22), be DENIED.Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED, that this Report, Recommendation and Order be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report, Recommendation and Order must be filed with the Clerk of this Court within ten (10) days after receipt of a copy of this Report, Recommendation and Order in accordance with the above statute, Fed.R.Civ.P. 72(b) and Local Rule 72.3(a)(3).
The district judge will ordinarily refuse to consider de novo arguments, case law and/or evidentiary material which could have been, but was not presented to the magistrate judge in the first instance. See, e.g., Patterson-Leitch Co. v. Massachusetts Mun. Wholesale Electric Co., 840 F.2d 985 (1st Cir. 1988).
Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed.2d 435 (1985); Wesolek v. Canadair Ltd., 838 F.2d 55 (2d Cir. 1988).
The parties are reminded that, pursuant to Rule 72.3(a)(3) of the Local Rules for the Western District of New York, "written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority." Failure to comply with the provisions of Rule 72.3(a)(3), or with the similar provisions of Rule 72.3(a)(2) (concerning objections to a Magistrate Judge's Report, Recommendation and Order), may result in the District Judge's refusal to consider the objection.
The Clerk is hereby directed to send a copy of this Report, Recommendation and Order to the plaintiff and to the attorney for the defendant Frances Gonzales.
If the district judge accepts the recommendation to permit service, the Clerk of the Court should be directed to issue to summons for defendants Booker and Johnson to plaintiff. Because plaintiff paid the filing fee, he is responsible for service of the summons and complaint. However, as an inmate of a correctional facility proceeding pro se, he may request service by the United States Marshal at a nominal cost, as explained in the attached Notice Regarding Service of Summons and Complaint with Attached Request for U.S. Marshal Service.