Opinion
9:13-CV-0965 (BKS/DJS)
08-15-2016
WONDER WILLIAMS, Plaintiff, v. CORRECTIONAL OFFICER LANE, et al., Defendants.
Appearances: Wonder Williams 10-A-0102 Five Points Correctional Facility Caller Box 119 Romulus, NY 14541 Plaintiff, pro se Keith J. Starlin, AAG Hon. Eric T. Schneiderman Office of New York State Attorney General The Capitol Albany, NY 12224 Attorney for Defendants
Appearances:
Wonder Williams
10-A-0102
Five Points Correctional Facility
Caller Box 119
Romulus, NY 14541
Plaintiff, pro se Keith J. Starlin, AAG
Hon. Eric T. Schneiderman
Office of New York State Attorney General
The Capitol
Albany, NY 12224
Attorney for Defendants Hon. Brenda K. Sannes, U. S. District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se Wonder Williams brought this action against defendants under 42 U.S.C. § 1983 asserting a First Amendment claim arising out of the alleged interference with his mail while he was incarcerated in the Special Housing Unit (SHU) at the Auburn Correctional Facility. Dkt. No. 12. Plaintiff alleges that defendant Correctional Officer Lane withheld Plaintiff's incoming mail and that Plaintiff complained to defendants Captain Chuttey and Captain McCarthy who did not respond to his complaints. Dkt. No. 12, pp. 1-7.
Defendants filed a motion for summary judgment on October 16, 2015. Dkt. No. 57. Plaintiff filed a response in opposition (Dkt. Nos. 64 and 80) and Defendants filed a reply (Dkt. No. 82). This matter was assigned to United States Magistrate Judge Daniel J. Stewart who, on June 14, 2016, issued a Report-Recommendation and Order recommending that Defendant's motion for summary judgment be granted and that this action be dismissed. Dkt. No. 92, p. 11. Magistrate Judge Stewart advised the parties that under 28 U.S.C. § 636(b)(1), they had fourteen days within which to file written objections to the report, and that the failure to object to the report within fourteen days would preclude appellate review. Dkt. No. 92, pp. 11-12.
Plaintiff filed a timely objection to the Report-Recommendation (Dkt. No. 93) and Defendants have responded to the objection (Dkt. No. 94). Plaintiff has replied to the Defendant's response. Dkt. No. 95. For the reasons set forth below, the Report-Recommendation is adopted in its entirety.
II. Standard of Review
This Court reviews de novo those portions of the Magistrate Judge's findings and recommendations that have been properly preserved with a specific objection. Petersen v. Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). Findings and recommendations as to which there was no properly preserved objection are reviewed for clear error. Id.
III. Discussion
A. Standard for Summary Judgment
Under Federal Rule of Civil Procedure 56(a), summary judgment may be granted only if all the submissions taken together "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." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of demonstrating "the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. A fact is "material" if it "might affect the outcome of the suit under the governing law," and is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson).
"When ruling on a summary judgment motion, the district court must construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant." Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). Still, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), and cannot rely on "mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986) (quoting Quarles v. Gen. Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985)).
Where the plaintiff proceeds pro se, the Court must read his submissions liberally and interpret them "to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). However, a pro se party's "'bald assertion,' completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Jordan v. New York, 773 F. Supp. 2d 255, 268 (N.D.N.Y. 2010) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)); see also Wagner v. Swarts, 827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011).
B. The Report-Recommendation
As Magistrate Judge Stewart noted, in order to establish a First Amendment claim for interference with incoming, non-legal mail an inmate "'must show a pattern and practice of interference that is not justified by any legitimate penological concern.'" Singleton v. Williams, No. 12 Civ. 2021 (LGS), 2014 WL 2095024, *4, 2014 U.S. Dist. LEXIS 69181, at *9 (S.D.N.Y. May 20, 2014) (quoting Cancel v. Goord, No. 00 Civ. 2042, 2001 WL 303713, at *6, 2001 U.S. Dist. LEXIS, at *18-19 (S.D.N.Y. Mar. 29, 2001)); see, e.g., Ahlers v. Rabinowitz, 684 F.3d 53, 65 (2d Cir. 2012) (affirming dismissal of complaint alleging interference with incoming non-legal mail because eleven alleged instances of interference over four months could not support a claim that interference was regular and unjustifiable). Dkt. No. 92, pp. 7-8.
The Court has appended copies of all unreported decisions cited in this Decision for the convenience of the pro se plaintiff.
In the Report-Recommendation Magistrate Judge Stewart considered what evidence supported Plaintiff's allegation that "for months," whenever Lane was working, Plaintiff would not receive his incoming mail. Dkt. No. 92, p. 8; Dkt. No. 30, p. 2. Magistrate Judge Stewart found that Plaintiff's claim that Lane withheld his mail on dates other than the three specific incidents alleged - May 13, September 7, and October 6, 2010 "is wholly speculative." Dkt. No. 92, p. 8. Magistrate Judge Stewart noted that Plaintiff was "unable to specifically identify any mail that he did not receive;" that Plaintiff acknowledged receiving mail during this period; and that Plaintiff did not provide any evidence suggesting that the reason he did not receive mail is because it was confiscated by Lane. Dkt. No. 92, pp. 8-9. Magistrate Judge Stewart found that Plaintiff's speculation that he did not receive mail whenever Lane was working was insufficient to create an issue of fact. Dkt. No. 92, p. 9.
Plaintiff alleges that this occurred over a six-month period, from May 2010 to October 2010. Dkt. No. 12, p. 6.
Magistrate Judge Stewart noted that Plaintiff, "at most" only identified three specific incidents on which Lane allegedly interfered with Plaintiff's mail -- May 13, September 7 and October 6, 2010 -- and that three instances are insufficient as a matter of law to establish a pattern or practice. Dkt. No. 92, p. 8-9. In addition, with respect to two of these dates - May 13, 2010 and September 7, 2010 - Magistrate Judge Stewart found that Plaintiff had failed to raise a triable issue of fact that Lane interfered with his mail. Plaintiff's tampering claim was based upon "inadmissible hearsay statements of unidentified correctional officers" who allegedly told Plaintiff that Lane had Plaintiff's mail. Dkt. No. 92, p. 10. Moreover, the SHU log books evidence that "Lane was not even on duty on either of those dates." Dkt. No. 92, pp. 9-10.
With respect to the third date -- October 6, 2010 - Magistrate Judge Stewart noted that it is undisputed that Lane confiscated a photograph from Plaintiff's incoming mail. Dkt. No. 92, p. 10. Plaintiff asserts that Lane withheld other letters and photographs as well. Dkt. No. 92, p. 9. Lane stated that he confiscated a photograph depicting nudity, in accord with DOCCS policy which forbids personal nude photographs in order to prevent conflicts between inmates and access by sex offenders. Dkt. No. 92, p. 10. Magistrate Judge Stewart found that Lane's confiscation of a photograph depicting nudity was justified by a legitimate penological interest. Id. Although Plaintiff denied that the photograph depicted nudity, Magistrate Judge Stewart found that Plaintiff's "denial is mere speculation based upon his belief that people sending him mail knew not to send him photographs depicting nudity." Dkt. No. 92, p. 10. Thus, even if the three alleged incidents of mail interference were sufficient to constitute a pattern or practice, Magistrate Judge Stewart found that Plaintiff failed to establish a genuine issue of fact to show that his mail was confiscated on May 13 or September 7 or that Lane's confiscation of a photograph on October 7 was not justified by legitimate penological interests. Magistrate Judge Stewart accordingly recommended that the Defendants' motion for summary judgment be granted as to Plaintiff's claims against Lane, and that Plaintiff's supervisory claims against defendants Chuttey and McCarthy be dismissed because Plaintiff's claim against Lane was unfounded. Dkt. No. 92, p. 11.
In his declaration filed in support of the motion for summary judgment Lane explained that mail sent to inmates at the Auburn SHU "first went through and was processed by the inmate correspondence department at Auburn," and that incoming mail was opened by individuals in that department before it arrived at the SHU. Dkt. No. 57-10, p. 7. Lane stated that he saw a "plainly visible photograph" of a nude woman in an already opened envelope for Williams and that he confiscated the photograph. Lane noted that inmates work in the mail room and "the presence of contraband in envelopes sent out from the mail room is a real possibility." Id., p. 8. Lane stated that this was the only occasion on which he confiscated mail from Williams. Id.
C. Objection and Analysis
a. Lane's Alleged Admission
Plaintiff has objected to the Report-Recommendation arguing, inter alia, that his claim of mail interference on occasions beyond May 13, September 7 and October 6, 2010 is not "wholly speculative" because Plaintiff presented evidence, in his sworn declaration, that Defendant Lane admitted that he had interfered with Plaintiff's mail for months. Dkt. No. 93, p. 3-4.
In Plaintiff's sworn declaration, filed in opposition to the motion for summary judgment, Plaintiff stated that on October 6, 2010, after Plaintiff confronted Lane about confiscating Plaintiff's mail, in violation of policy and Plaintiff's rights, Lane responded maliciously that he "doesn't give a fuck about that," and that Lane
admitted that he had indeed been interfering with and depriving me of my incoming mail numerous times for the course of months. He stated "I've been doing it for months" and "I'll do whatever I fucking want or feel like" . . . He stated that I hadn't received any of my incoming mail when he was working due to his interference and continued to state that I wouldn't receive any mail when he was working on duty.Dkt. No. 80, pp. 6-7; see also Verified Second Amended Complaint Dkt. No. 12, pp. 5 (alleging that Lane said "I've been doing it for months," and that Plaintiff "won't receive any mail whenever [Lane] is working."). Plaintiff further stated that the entire verbal exchange on October 6, 2010 was captured in the SHU video cameras. Dkt. No. 80, p. 7. Plaintiff argues that his sworn statement regarding Lane's alleged admission is sufficient to raise a triable issue of fact. Lane, on the other hand, has submitted an affidavit stating that the only mail he ever confiscated from Plaintiff was the nude photograph. Dkt. No. 57-10, p. 8. Lane denies having made any such admission; Lane denies telling Plaintiff that Lane was withholding his mail. Dkt. No. 57-10, pp. 6, 8.
In response to this objection, Defendants note that Plaintiff did not describe any admission by Lane until the Second Amended Complaint, on January 3, 2014, more than three years after the incident, and after the Court's December 6, 2013 Decision and Order dismissing the previous complaint which specifically informed Plaintiff that he needed to allege a pattern and practice of mail interference to support a mail interference claim. Dkt. No. 94, p. 2. Defendants allege that the Court is "free to discount" this alleged admission by Lane because it is "not only wholly unbelievable, it is clearly contradicted by the detailed versions of that October 6, 2010 conversation that plaintiff himself gave, in writing, on three earlier occasions, including in two (2) sworn pleadings filed in this action." Dkt. No. 94, p. 2. The Court notes that Defendant's argument is supported by the record. In Plaintiff's October 6, 2010 grievance, and the October 8, 2010 "add on," he provided a detailed, almost three-page description of the October 6th incident, which did not include any admission by Lane to any prior interference of mail. Dkt. No. 80-2, pp. 20-23. In his original verified complaint Plaintiff's description of the incident does not include any admission by Lane to any prior interference of mail. Dkt. No. 1, pp. 6-7. And Plaintiff did not describe any such admission in the lengthy description of the incident in his verified first amended complaint. Dkt. No. 9, pp. 6-10.
Defendants also argue that even if the Court does not discount Plaintiff's latest version of that conversation, the alleged admission by Lane is insufficient to support a mail interference claim because it is "wholly devoid of the details required to sufficiently support plaintiff's mail interference claim." Id. Defendants note that the alleged admission "says nothing about how many times [Lane] supposedly confiscated plaintiff's mail, what mail he supposedly confiscated [or] when he supposedly confiscated it." Id.
In response, Plaintiff asserts that his claim regarding Lane's admission has been made "consistently throughout this case," and that Lane's admission would have been captured on the SHU video from that date. Dkt. No. 95, p. 3. The only document, however, which Plaintiff cites in support of his claim that he has consistently alleged Lane's admission does not support his claim. Plaintiff cites to his October 8, 2010 "add-on" to the grievance, which asserts that his incoming mail has been confiscated "for months," but does not describe any admission by Lane. Dkt. No. 95, p. 3; see Dkt. No. 80-2, p. 23.
As a general rule, at the summary judgment stage, courts must not weigh evidence or assess the credibility of witnesses. Scott v. Coughlin, 344 F.3d 282, 289-90 (2d Cir. 2003). However, in the "rare circumstance where the plaintiff relies almost exclusively on his own testimony, much of which is contradictory and incomplete, it will be impossible for a district court to determine whether the jury could reasonably find for plaintiff, and thus whether there are any genuine issues of material fact, without making some assessment of the plaintiff's account." Jeffreys, 426 F.3d at 554 (internal quotations and citations omitted). In Jeffreys, the plaintiff's version of events directly contradicted the account he had previously and consistently provided, was unsupported by any other evidence, and was inconsistent with all of the other evidence in the record. Id. at 554-55. The Second Circuit found that summary judgment for the defendants was appropriate because "no reasonable person would undertake the suspension of disbelief necessary to give credit to the allegations made in the complaint." 426 F.3d at 555 (internal marks and quotation omitted). In so ruling, the Court noted that "[i]f there is a plausible explanation for discrepancies in a party's testimony, the court considering a summary judgment motion should not disregard the later testimony because of an earlier account that was ambiguous, confusing, or simply incomplete." 426 F.3d at 555 n.2 (citing Langman Fabrics v. Graff Californiawear, Inc., 160 F.3d 106, 112 (2d Cir.1998)).
In this case, Plaintiff has failed to advance any plausible explanation for why he did not include Lane's alleged admission in his detailed descriptions of this incident, shortly after the incident, in October 2010, and in his first two verified complaints in this case. Nevertheless, there is no contradiction between Plaintiff's recent version and his prior versions, and considering all inferences in favor of the Plaintiff, the Court does not find that no reasonable juror could believe Plaintiff's recent version.
Even crediting Plaintiff's testimony regarding Lane's admission, however, the Court finds that Plaintiff has failed to meet his burden of coming forward with "specific facts showing that there is a genuine issue for trial." Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (emphasis added); see Jeffreys, 426 F.3d at 554 (noting that, to defeat summary judgment "a nonmoving party must offer some hard evidence showing that its version of the events is not wholly fanciful"). Plaintiff has failed to provide admissible evidence of any specific instance of mail interference beyond the incident on October 6, 2010, when Lane acknowledged confiscating a nude photograph from Plaintiff's mail. Beyond his general testimony that he did not always receive the magazines to which he subscribed, Plaintiff has failed to identify any incoming mail that he did not receive. Moreover, Lane's alleged admission does not provide any information regarding how many times Plaintiff's incoming mail was confiscated, when it was confiscated, what mail was confiscated or whether any confiscation was justified by penological interests. Plaintiff's speculation that had incoming mail which he did not receive because of Lane's interference is insufficient to raise a material issue of fact that the interference was regular or that any interference was unjustified. See, e.g., Ahlers, 684 F.3d at 65 ("[E]leven instances over four months does not in itself support an inference of regular interference. And the allegation that mail was withheld is insufficient to support a claim that it was withheld unjustifiably.")
The Court finds that there is insufficient evidence in this record from which a reasonable juror could find that Plaintiff has established interference with his incoming non-legal mail rising to the level of a First Amendment violation.
b. Plaintiff's Motion for Sanctions for Spoliation
Plaintiff also has objected to Magistrate Judge Stewart's failure to make a recommendation on plaintiff's motion for spoliation of evidence sanctions. Dkt. No. 93, p. 5. In the Report-Recommendation Magistrate Judge Stewart noted that he would not make a recommendation on the plaintiff's motion, which would "properly be a matter for the district court, if this action should proceed to trial." Dkt. No. 92, p. 10 n.3. Plaintiff argues that his motion for spoliation "speaks directly to issues of the defendant's repeated and gross destruction of relevant and crucial evidence favorable to the plaintiff and his claims," and that he was prejudiced by the failure to resolve the issues in his motion for spoliation sanctions before the defendants' motion for summary judgment. Dkt. No. 93, pp. 2, 5.
"In borderline cases, an inference of spoliation, in combination with some (not insubstantial) evidence for the plaintiff's cause of action, can allow the plaintiff to survive summary judgment." Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 107 (2d Cir. 2001) (internal quotations omitted). However, in order to establish spoliation the plaintiff must show: "(1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed 'with a culpable state of mind'; and (3) that the destroyed evidence was 'relevant' to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense." Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002) (quoting Byrnie, 243 F.3d at 107-12). A district court has "broad discretion in crafting a proper sanction for spoliation," West v. Goodyear Tire and Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999), but "should impose the least harsh sanction that can provide an adequate remedy." Hawley v. Mphasis Corp., 302 F.R.D. 37, 46 (S.D.N.Y. 2014). An adverse inference is "an extreme sanction and should not be imposed lightly." Treppel v. Biovail Corp, 249 F.R.D. 111, 120 (S.D.N.Y. 2008).
As a preliminary matter, the Court notes that Plaintiff has failed to show how most of the items that he alleges were destroyed by the defendants would have provided admissible evidence germane to the issue here, i.e., to show that Lane engaged in a regular pattern and practice of unjustified interference with Plaintiff's mail. See Dkt. No. 79, pp. 3-4. Plaintiff does assert that the SHU video recording on October 6, 2010 would have captured Lane's alleged verbal admission that he had been interfering with Plaintiff's mail for months, Dkt. No. 79, p. 3. Although, as set forth above, even by Plaintiff's account, Lane's alleged admission would not provide a material issue of fact showing the regular, unjustifiable interference with his incoming mail, in light of this objection, the Court has considered Plaintiff's motion for spoliation of evidence sanctions and has reviewed Plaintiff's motion (Dkt. No. 79), the Defendants' response (Dkt. No. 90), and the Plaintiff's reply (Dkt. No. 91).
For example, while Plaintiff alleges that the October 6, 2010 SHU log book would show that Lane was on duty in the SHU on that date, this fact is undisputed. Dkt. No. 79, p. 6. Also, as Magistrate Judge Stewart noted, SHU videotapes on May 13, 2010 and September 7, 2010 containing alleged comments by unidentified correctional officers informing the Plaintiff that Lane had his mail would be hearsay and would not be admissible to show that Lane interfered with Plaintiff's mail. Dkt. No. 92, p. 10 n.3. (As noted above, Lane has submitted a declaration, supported by records, showing that he was not even on duty on May 13, 2010 or September 7, 2010. Dkt. No. 57-10, pp. 2-4).
In response to Plaintiff's motion, each of the defendants has filed a declaration stating that he did not receive any request to preserve evidence, and that he did not receive the preservation requests Plaintiff now claims to have submitted to various officials. Dkt. Nos. 90-2, 90-3, 90-4. Defendant Lane stated that he "immediately disposed of" the nude photograph that he confiscated in October 2010 "as it was contraband;" it would not be used to charge the Plaintiff with any violation of prison rules; and no one asked Lane to preserve the photograph. Lane stated that he did not destroy any of the other items at issue in Plaintiff's motion. Dkt. No. 90-2, p. 3. Defendants Chuttey and McCarthy have submitted declarations stating that they did not destroy any of the items at issue in Plaintiff's motion. Dkt. Nos 90-3, 90-4. Both defendants stated that it was their usual practice to "pull" and preserve video/audio tapes when there is a request for a tape, and that they would have done so if they had received a request from Plaintiff. Dkt. No. 90-3, p. 3; Dkt No. 90-4, pp. 3-4. Defendant McCarthy stated that video/audio recordings from the SHU are only preserved for fourteen days "before they are automatically deleted/taped over." Dkt. No. 90-4, p. 3. The Defendants note that Plaintiff's actual grievance "makes no mention of any request to actually preserve video/audio tapes." Dkt. No. 90-4, p. 4; Dkt. No 90-3, p. 3.
Based on this record, the Court finds that Plaintiff has failed to establish spoliation: Plaintiff has failed to meet his burden of establishing that defendants had an obligation to preserve the evidence identified in his motion and that it was destroyed with a culpable state of mind. The Court accordingly rejects Plaintiff's objection founded on his motion for spoliation.
Plaintiff's remaining objections are without merit. As Defendants note that there is no support for Plaintiff's argument that a different standard applies to photographs in incoming mail than letters or other non-legal items in incoming mail. Dkt. No. 94, p. 1. --------
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge Stewart's Report-Recommendation (Dkt. No. 92) is ADOPTED in all respects; and it is further
ORDERED that Defendants' motion for summary judgment (Dkt. No. 57) is GRANTED and that this action DISMISSED, and it is further
ORDERED that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order in accordance with the Local Rules of the Northern District of New York.
IT IS SO ORDERED.
Dated: August 15, 2016
/s/_________
Brenda K. Sannes
U.S. District Judge