Opinion
9:18-cv-336 (TJM/TWD)
05-31-2022
DEREK A. HEYLIGER, Plaintiff, v. KARIN WEST and TOM FORBES, Defendants.
DEREK A. HEYLIGER HON. LETITIA JAMES KASEY K. HILDONEN
DEREK A. HEYLIGER
HON. LETITIA JAMES
KASEY K. HILDONEN
ORDER AND REPORT-RECOMMENDATION
THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
In this action, Derek A. Heyliger, an inmate at the Sing Sing Correctional Facility in New York, claims Karin West and Tom Forbes (“Defendants”) violated his rights under the United States Constitution by denying his access to the courts and interfering with his legal mail. (See Dkt. Nos. 7, 8.) Defendants' first motion for summary judgment was denied, and their request to file a second motion for summary judgment was granted. (See Dkt. Nos. 63, 66, 73.) For the following reasons, the undersigned recommends that the District Court DENY Defendants' second motion for summary judgment. (Dkt. No. 68.)
I. BACKGROUND
A. Procedural History
On March 19, 2018, Heyliger initiated this action pro se pursuant to 28 U.S.C. § 1983, asserting various claims against unknown officers at the Great Meadow Correctional Facility. (Dkt. No. 1.) The Honorable Thomas J. McAvoy, Senior United States District Judge, granted Heyliger's application to proceed in forma pauperis and concluded three claims survived initial review: (1) denial of access to the courts; (2) interference with legal mail; and (3) gross negligence based on the alleged interference with legal mail. (Dkt. No. 4.) Because Heyliger could not identify the defendants, the Court requested help from the New York State Attorney General's Office (“AG's Office”) ascertaining their names. See id. at 13-15 (requesting help pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d. Cir. 1997)).
On July 19, 2018, Heyliger filed an Amended Complaint wherein he named Defendants Karen West and Tom Forbes. (Dkt. No. 7.) Judge McAvoy concluded the same three claims survived initial review. (Dkt. No. 8 at 3-4; see also Heyliger v. Doe, No. 9:18-CV-0336 (TJM) (TWD), 2018 WL 3951340, at *2-3 (N.D.N.Y. Aug. 13, 2018).) Defendants moved to dismiss those claims on various grounds, including for failure to exhaust administrative remedies. (Dkt. No. 15-1 at 6-11.) Judge McAvoy denied Defendants' motion to dismiss Heyliger's constitutional claims but granted their unopposed motion to dismiss his New York State common law claim for gross negligence. (Dkt. No. 23 at 6-9; see also Heyliger v. West, No. 9:18-CV-0336 (TJM) (TWD), 2019 WL 4757334, at *3-4 (N.D.N.Y. Sept. 30, 2019).) Defendants subsequently filed an Answer, and the case proceeded through discovery. (See Dkt. Nos. 24, 25, 28, 38, 44, 47.)
On May 14, 2021, Defendants moved for summary judgment on the grounds that Heyliger had failed to exhaust his administrative remedies. (Dkt. No. 56 at 8, 12-18.) However, Defendants failed to file and serve a Statement of Material Facts, as required by Local Rule 56.1(a). (See generally Dkt. No. 56; see also Heyliger v. West, No. 9:18-CV-336 (TJM) (TWD), 2021 WL 5605231, at *1 (N.D.N.Y. Nov. 2, 2021), report and recommendation adopted, 2021 WL 5585929 (N.D.N.Y. Nov. 30, 2021).) Because of this failure, the Court denied Defendants' motion. (Dkt. No. 63; see also Heyliger v. West, No. 9:18-CV-336 (TJM) (TWD), 2021 WL 5585929, at *1 (N.D.N.Y. Nov. 30, 2021).) Defendants requested leave to file a second motion for summary judgment, which the Court granted over Heyliger's objection. (Dkt. Nos. 65, 66, 67, 73.) Defendants accordingly filed their second motion for summary judgment on February 25, 2022, and Heyliger filed an opposition on March 21, 2022. (Dkt. Nos. 68, 72.)
B. Heyliger's Claims
Heyliger claims Defendants violated 28 U.S.C. § 1983 by blocking his access to the courts and interfering with his legal mail. (See Dkt. Nos. 7, 8.) His access to the courts claim stems from an incident at the Clinton Correctional Facility on October 28, 2015, where several officers allegedly assaulted him and used excessive force. (Dkt. No. 7 at 5.) Heyliger asserts Defendants blocked his ability to pursue a common law assault claim in the New York Court of Claims by: (1) refusing to send legal mail on October 26, 2016; (2) improperly opening that legal mail; (3) improperly returning that legal mail; (4) losing a piece of evidence (i.e., an envelope) included in that legal mail, (5) delaying the re-mailing of that legal mail for over a month, and (6) causing the dismissal of his untimely assault claim. Id. at 5-10.
Heyliger's interference with legal mail claim stems from much of the same conduct. (See Dkt. No. 7 at 5-10; see generally Dkt. No. 4 at 10-11 (describing the interference claim); see also Heyliger, 2019 WL 4757334, at *3 (same).) He claims that conduct interfered with his legal mail and chilled his access to the courts. (Dkt. No. 7 at 5-10; Dkt. No. 72-1 at 14-15; see also Heyliger, 2019 WL 4757334, at *3.)
C. The Parties' Arguments
Defendants seek summary judgment on both of Heyliger's claims. (See Dkt. No. 68-11.) First, Defendants argue Heyliger's access to courts claim fails as a matter of law because (1) he failed to produce evidence they acted deliberately and maliciously, and (2) he suffered no actual injury. Id. at 7-13. Heyliger contends he produced evidence that Defendants acted deliberately and maliciously-they did not send his legal mail on October 26, 2016, they opened and improperly returned that legal mail, they delayed its re-mailing for nearly a month, and they lost evidence included in that legal mail. (Dkt. No. 72-1 at 8-13.) He asserts summary judgment is precluded because some, if not all, of this evidence raises triable issues of fact. Id. at 9, 13. He further contends he was injured by this conduct, which caused the dismissal of his common law assault claim before the New York Court of Claims on the grounds that it was untimely and thus jurisdictionally defective. Id. at 12-13.
Through their second motion for summary judgment, Defendants do not argue Heyliger failed to demonstrate they are individually responsible for the conduct and injuries alleged. (See generally Dkt. No. 68-11.)
Second, Defendants argue Heyliger's interference with legal mail claim fails as a matter of law because (1) he produced no evidence that they engaged in an ongoing practice of censorship, and (2) any alleged tampering, if true, was insufficient to chill Heyliger's First Amendment activities. (Dkt. No. 68-11 at 1-15.) Heyliger contends Defendants interfered with his outgoing legal mail several times and chilled his access to the courts by causing the forfeiture of his common law assault claim in the New York Court of Claims. (Dkt. No. 72-1 at 13-15.)
II. SUMMARY JUDGMENT STANDARD
“A motion for summary judgment may not be granted unless the court determines that there is no genuine issue of material fact to be tried, and that the facts as to which there is no such issue warrant judgment for the moving party as a matter of law.” S. Katzman Produce Inc. v. Yadid, 999 F.3d 867, 877 (2d Cir. 2021). “A material fact is one capable of influencing the case's outcome under governing substantive law, and a genuine dispute is one as to which the evidence would permit a reasonable juror to find for the party opposing the motion.” Figueroa v. Mazza, 825 F.3d 89, 98 (2d Cir. 2016) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)); see also Selevan v. New York Thruway Auth., 711 F.3d 253, 256 (2d Cir. 2013). “The moving party is entitled to a judgment as a matter of law [where] the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); El-Nahal v. Yassky, 835 F.3d 248, 252 (2d Cir. 2016).
Unless otherwise indicated, in quoting cases, all alterations, internal quotation marks, emphases, footnotes, and citations are omitted. See, e.g., Sczepanski v. Saul, 946 F.3d 152, 157 n.4 (2d Cir. 2020).
The party moving for summary judgment bears the initial burden of identifying “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323; see generally Fed.R.Civ.P. 56(c)(1). “Where, as here, the burden of persuasion at trial would be on the non-moving party . . . the party moving for summary judgment may satisfy [its] burden of production under Rule 56 in either of two ways: (1) by submitting evidence that negates an essential element of the non-moving party's claim, or (2) by demonstrating that the non-moving party's evidence is insufficient to establish an essential element of the non-moving party's claim.” Nick's Garage, Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107, 114 (2d Cir. 2017). “If the movant makes this showing in either manner, the burden shifts to the nonmovant to point to record evidence creating a genuine issue of material fact.” Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006).
On a motion for summary judgment, “the evidence of the non-movant is to be believed, all permissible inferences are to be drawn in [his] favor, and the court must disregard all evidence favorable to the moving party that the jury is not required to believe.” Redd v. New York Div. of Parole, 678 F.3d 166, 174 (2d Cir. 2012); see also S. Katzman Produce Inc., 999 F.3d at 877; see generally Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 151 (2000) (explaining the jury is not required to believe contradicted evidence or impeached testimony).“[I]n reviewing the evidence and considering what inferences may reasonably be drawn, the court may not make credibility determinations or weigh the evidence.” S. Katzman Produce Inc., 999 F.3d at 877. Moreover, “[t]he evaluation of ambiguous acts is a task for the jury, not for the judge on summary judgment.” Redd, 678 F.3d at 174. “In sum, summary judgment is proper only when, with all permissible inferences and credibility questions resolved in favor of the party against whom judgment is sought, there can be but one reasonable conclusion as to the verdict . . . i.e., it is quite clear what the truth is.” Id.; Kaytor v. Elec. Boat Corp., 609 F.3d 537, 546 (2d Cir. 2010).
The Court is mindful of the Second Circuit's instruction that a party's pro se pleading- including a written opposition to a motion for summary judgment-must be construed liberally and interpreted to raise the strongest arguments that it suggests. Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
III. DISCUSSION
Defendants are not entitled to summary judgment because there are genuine issues of material fact, and they have failed to demonstrate they are entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a). First, a reasonable juror could believe that Defendants deliberately and maliciously prevented Heyliger from timely filing his assault claim with the New York Court of Claims. See Figueroa, 825 F.3d at 98; Selevan, 711 F.3d at 256. Moreover, Heyliger suffered actual injury when the New York Court of Claims dismissed his common law assault claim-he was completely foreclosed from seeking redress because his claim was untimely and dismissed as jurisdictionally defective. See Dixon v. von Blanckensee, 994 F.3d 95, 106 (2d Cir. 2021); Sousa v. Marquez, 702 F.3d 124, 127 (2d Cir. 2012). Second, a reasonable juror could find that Defendants interfered with Heyliger's outgoing mail several times and chilled his access to the courts by causing his common law assault claim to be dismissed. See Washington v. James, 782 F.2d 1134, 1139-40 (2d Cir. 1986). The undersigned accordingly recommends DENYING Defendant's motion for summary judgment. (Dkt. No. 68.)
A. Access to the Courts
“The First Amendment provides, in relevant part, that ‘Congress shall make no law . . . abridging . . . the right of the people . . . to petition the Government for a redress of grievances.” Friedman v. Bloomberg L.P., 884 F.3d 83, 90 (2d Cir. 2017) (quoting U.S. Const. amend. I.). “The right to petition, which applies to the states through the Fourteenth Amendment, extends to all departments of the Government, including the courts.” Id. An individual's “constitutional right of access to the courts is violated where government officials obstruct legitimate efforts to seek judicial redress.” Id.; see also Christopher v. Harbury, 536 U.S. 403, 415 n.12 (2002) (“Decisions of this Court have grounded the right of access to courts in the Article IV Privileges and Immunities Clause, . . . the First Amendment Petition Clause, . . . the Fifth Amendment Due Process Clause, . . . and the Fourteenth Amendment Equal Protection, . . . and Due Process Clauses”). “[M]eaningful access to the courts is the touchstone” of this right, which extends to incarcerated individuals. See Lewis v. Casey, 518 U.S. 343, 350-51 (1996); Dixon, 994 F.3d at 106; Kaminski v. Semple, 796 Fed.Appx. 36, 38-39 (2d Cir. 2019).
“In general, claims alleging the loss of a right of access to the courts fall into two categories: so-called ‘forward-looking' and ‘backward-looking.'” Kern v. Contento, No. 211672, 2022 WL 1112767, at *3 (2d Cir. Apr. 14, 2022); see generally Christopher, 536 U.S. at 413. Through forward-looking claims, plaintiffs complain of “systemic official action” that frustrates their ability to prepare or file suits at the present time. Christopher, 536 U.S. at 413; see also Sousa, 702 F.3d at 127. “In cases of this sort, the essence of the access claim is that official action is presently denying an opportunity to litigate for a class of potential plaintiffs.” Christopher, 536 U.S. at 413. Forward-looking claims accordingly aim “to place the plaintiff in a position to pursue a separate claim for relief once the frustrating condition has been removed.” Id.
Through backward-looking claims, plaintiffs complain of “official acts” that “caused the loss or inadequate settlement of a meritorious case, . . . the loss of an opportunity to sue, . . . or the loss of an opportunity to seek some particular order of relief.” Id. at 414. Backward-looking claims “do not look forward to a class of future litigation, but backward to a time when specific litigation ended poorly, or could not have commenced, or could have produced a remedy subsequently unobtainable.” Id.; see also id. at 415 (explaining “when the access claim (like this one) looks backward, the complaint must identify a remedy that may be awarded as recompense but not otherwise available in some suit that may yet be brought.”). “The ultimate object of these sorts of access claims, then, is not the judgment in a further lawsuit, but simply the judgment in the access claim itself.” Id. at 414.
The “justification for recognizing each kind of claim is the same . . . to provide some effective vindication for a separate and distinct right to seek judicial relief for some wrong.” Id. at 414-15. The right of access to the courts is “ancillary to the underlying claim, without which a plaintiff cannot have suffered injury by being shut out of court.” Id. at 415. Accordingly, the underlying claim-the claim motivating plaintiffs' efforts to seek redress in the courts-must not be frivolous. Id. at 415-16; see also Lewis, 518 U.S. at 350-51.
Here, Heyliger asserts a backward-looking access to courts claim. (See generally Dkt. No. 7 at 5-10.) He claims Defendants' interference with his legal mail caused his common law assault claim to be delivered late, resulting in its dismissal on the grounds that it was untimely and thus jurisdictionally defective before the New York Court of Claims. See id. “The viability of backward-looking right-of-access claims is far from clear in this Circuit.” Sousa, 702 F.3d at 128; but see id. (“Such claims, if recognized, would be available only if the governmental action caused the plaintiff's suit to be dismissed as untimely”); Christopher, 536 U.S. at 422 n.22 (suggesting a plaintiff may have lost a remedy, and thus suffered a backward-looking access to the courts violation, “where the statute of limitations had run” on the underlying claim). However, Defendants do not dispute the viability of Heyliger's backward-looking claim. (See Dkt. No. 68-11.) The undersigned accordingly assumes the validity of Heyliger's backwardlooking claim for this analysis. See, e.g., Blake v. Dowe, 36 F.Supp.3d 271, 277 n.2 (D. Conn. 2014).
“Because the availability of a backward-looking access claim is unclear in this circuit, its elements are not well settled.” Jean-Laurent v. Lawrence, No. 12-CV-1502 (JPO), 2015 WL 1208318, at *4 (S.D.N.Y. Mar. 17, 2015); compare Mahon v. Moultrie, 657 Fed.Appx. 52, 53 (2d Cir. 2016) (“To state a claim of denial of court access, a plaintiff must allege that the defendant took or was responsible for actions that hindered a plaintiff's efforts to pursue a legal claim and that the defendant's actions resulted in actual injury to the plaintiff.”), with DeMeo v. Tucker, 509 Fed.Appx. 16, 18 (2d Cir. 2013) (“To succeed on a denial of access claim, a plaintiff must show that the defendants (1) engaged in deliberate and malicious conduct that (2) resulted in actual injury, i.e., that hindered the plaintiff's effort to pursue a legal claim.”). However, “case law from the Supreme Court and the courts in this circuit suggests four elements.” Jean-Laurent, 2015 WL 1208318, at *4.
“First, the plaintiff must identify a nonfrivolous, arguable underlying claim.” Id. “Second, the plaintiff must establish that the defendant took or was responsible for actions that hindered a plaintiff's efforts to pursue a legal claim.” Id. “Third, the plaintiff must show that the defendant's alleged conduct was deliberate and malicious.” Id. “Fourth, the plaintiff must demonstrate that the defendant's actions resulted in an actual injury to the plaintiff.” Id.
Although many courts in this Circuit have applied this “deliberate and malicious” element, members of this Court have questioned its origins. See, e.g., Rodriguez v. McKoy, No. 9:15-CV-0610 (MAD) (TWD), 2021 WL 4743431, at *8 n.4 (N.D.N.Y. Oct. 12, 2021) (tracing the origins of this element to a decision that cited two cases in support of such a requirement, and observing that neither of the cases cited “appear to contain a ‘malicious' interference requirement.”); Desmarat v. Artus, No. 9:08-CV-977 (DNH) (RFT), 2011 WL 1564605, at *7 (N.D.N.Y. Mar. 25, 2011), report and recommendation adopted, 2011 WL 1557914 (N.D.N.Y. Apr. 25, 2011) (observing “published decisions from the Second Circuit do not impose this extra element of maliciousness, though many district cases nonetheless have interjected it into their analysis, often erroneously citing to cases that are not supportive”); cf. Moreau v. Ellsworth, No. 9:20-CV-124 (DNH) (ATB), 2021 WL 3813172, at *9 n.21 (N.D.N.Y. July 15, 2021), report and recommendation adopted, 2021 WL 3793772 (N.D.N.Y. Aug. 26, 2021) (observing that in Desmarat, the Court questioned whether maliciousness is a proper element of a backwardlooking access to courts claim); Roache v. Fisher, No. 9:18-CV-825 (GLS) (ATB), 2021 WL 2366981, at *8 n.13 (N.D.N.Y. Feb. 8, 2021), report and recommendation adopted, 2021 WL 1920538 (N.D.N.Y. May 13, 2021) (same); Jean-Laurent, 2015 WL 1208318, at *4 n. (observing the same, and noting “[o]ther circuits do not include such an element”) (collecting cases). The undersigned is accordingly unconvinced the “deliberate and malicious” element derives from binding Supreme Court or Second Circuit precedent. Accord Rodriguez, 2021 WL 4743431, at *8 n.4; Desmarat, 2011 WL 1564605, at *7.
1. Deliberate and Malicious Action
Defendants argue they are entitled to judgment as a matter of law because Heyliger failed to produce evidence they acted deliberately and maliciously. (Dkt. No. 68-11 at 13; see also Nick's Garage, 875 F.3d at 114.) Heyliger contends summary judgment is improper because he did produce such evidence, and it raises triable issues of fact for the jury. (Dkt. No. 72-1 at 813.) Believing Heyliger's evidence and drawing permissible inferences in his favor, see Anderson, 477 U.S. at 248, 255, the undersigned concludes a reasonable juror could find that Defendants acted deliberately and maliciously, see Figueroa, 825 F.3d at 98.
First, Heyliger produced evidence indicating Defendants failed to send legal mail that was essential to preserve his common law assault claim before the New York Court of Claims. (See Dkt. No. 72-1 at 17-18, 20, 30, 32-33.) Heyliger produced evidence that on October 26, 2016, he gave a notice of claim to prison officials to mail to the New York Attorney General's Office. See id. at 17-18, 26. That evidence indicates he also gave copies of the notice of claim to prison officials to mail to the New York Court of Claims. See id. At his deposition on November 24, 2020, Heyliger testified that he mailed a notice of claim to the New York Court of Claims on October 26, 2016. (See Dkt. No. 68-3 at 57-59.) Heyliger also produced evidence indicating that after he sent his notice of claim to the New York Court of Claims, it was never mailed. (See Dkt. No. 72-1 at 20, 30.) In two letters, both dated October 28, 2016, Heyliger complained to the New York Court of Claims and the Inmate Grievance Resolution Committee that his notice of claim was not timely mailed to the New York Court of Claims on October 26, 2016. See id. At his deposition, Heyliger testified that the notice of claim he mailed to the New York Court of Claims on October 26, 2016, was improperly returned to him on October 28, 2016. (Dkt. No. 68-3 at 57-61, 71-74.)
Second, Heyliger produced evidence indicating Defendants improperly opened and inspected his legal mail. (Dkt. No. 72-1 at 20, 30.) Heyliger produced two letters, both dated October 28, 2016, wherein he complained the notice of claim he mailed to the New York Court of Claims on October 26, 2018, was returned to him “ripped open with a postage stamp at the top right hand corner of the envelope,” and “bears a reddish ink which also appears underneath the flap seal section of the envelope.” Id. at 20, 30. He further stated the envelope was “substantive proof” that his legal mail “was deliberately ripped open, read, and returned to me after postage bar # 02IM-0008003361 was printed on my envelope.” Id. at 20, 30. At his deposition, Heyliger testified that the mail was deliberately ripped opened, reviewed, and returned to him with a mark of red ink on the envelope. (Dkt. No. 68-3 at 49, 68-69, 72.)
Third, Heyliger produced evidence indicating Defendants failed to properly document the return of his legal mail. (Dkt. No. 72-1 at 46-47.) The evidence indicates he received no legal mail on October 28, 2016, the day his notice of claim for the New York Court of Claims was returned to him. See id. At his deposition, Heyliger testified the notice of claim he mailed to the New York Court of Claims on October 26, 2018, was returned to him via regular mail, not legal mail, on October 28, 2016. (Dkt. No. 68-3 at 71-72.) He testified that although the envelope had the serial bar number for legal mail in the upper right-hand corner, it was nonetheless returned to him via regular mail-which meant he did not have to sign for it in the legal mail log. Id. at 74. He testified “this particular mail deliberately was sent back to me in the wrong batch . . . by way of regular mail” so that it “was deliberately not recorded.” Id. at 74.
Fourth, Heyliger produced evidence indicating Defendants delayed the re-mailing of his legal mail for nearly a month. (Dkt. No. 72-1 at 20, 22, 28.) The evidence suggests that on October 31, 2016, he gave his notice of claim to officials at his facility so they would re-mail it to the New York Court of Claims. Compare id. at 20, with Dkt. No. 68-3 at 79. However, the postmark date on the envelope sent to the New York Court of Claims indicates the officials at the facility did not mail the notice of claim until November 30, 2016. (Dkt. No. 72-1 at 22.) Moreover, the New York Court of Claims did not receive Heyliger's notice of claim until December 2, 2016. Id. at 28. At his deposition, Heyliger testified the notice of claim he gave to the prison officials to re-mail on October 31, 2016, “wasn't mailed until November 30th of 2016.” (Dkt. No. 68-3 at 81.)
Fifth, Heyliger produced evidence suggesting that a key piece of evidence-an opened envelope of legal mail-was lost when he mailed it to the New York Court of Claims for safe keeping. (See Dkt. No. 72-1 at 20, 52-59.) Heyliger documented the return of his opened notice of claim in two letters-one sent to the New York Court of Claims, and the other sent to the Inmate Grievance Resolution Committee. See id. at 20, 30. He mailed the opened envelope to the New York Court of Claims, specifically asking the Court to preserve the envelope, which he told the Court was “substantive proof that this envelope was deliberately opened by Great Meadow Correctional Facility officials of the Inmate Correspondence Office and/or Business Office.” Id. at 20. Months after he sent the envelope to the New York Court of Claims, Heyliger requested a copy of the envelope. See id. at 54-59. The New York Court of Claims did not produce a copy of the envelope. See id.; see also Dkt. No. 72-1 at 11.
Finally, it is undisputed that the New York Court of Claims dismissed Heyliger's assault claim as jurisdictionally defective because he did not timely file his notice of claim. (See Dkt. No. 68-5 at 3-5.) In other words, the failed mailing and delayed re-mailing of Heyliger's notice of claim caused the New York Court of Claims to dismiss his assault claim as untimely and thus jurisdictionally defective. See id.; compare Dkt. No. 72-1 at 17-18, 26 (indicating Heyliger's notice of claim was mailed to the New York Attorney General's Office on October 28, 2016), with Dkt. No. 68-5 at 3-5 (indicating Heyliger timely filed a notice of claim with the New York Attorney General's Office, but not with the New York Court of Claims).
In sum, Heyliger produced evidence that: (1) Defendants failed to send his notice of claim to the New York Court of Claims on October 26, 2016, despite his instructions to do so; (2) Defendants may have opened and inspected his notice of claim even though it was marked as legal mail; (3) Defendants improperly returned his notice of claim through regular mail instead of legal mail; (4) Defendants delayed the re-mailing of his notice of claim for nearly a month; (5) the envelope Heyliger intended to use as evidence that Defendants tampered with his legal mail was lost when he included it in his re-mailed notice of claim; and (6) the New York Court of Claims dismissed his common law assault claim as untimely and thus jurisdictionally defective. (See generally Dkt. No. 72-1; Dkt. No. 68-5 at 3-5.) At his deposition, Heyliger described these events in detail. (See generally Dkt. No. 68-3.) Through their second motion for summary judgment, Defendants produced no evidence contradicting this version of events or impeaching Heyliger's deposition testimony. (See generally Dkt. No. 68-1.)
Believing Heyliger's evidence and drawing all permissible inferences in his favor, Redd, 678 F.3d at 174, the undersigned concludes a reasonable juror could find that Defendants acted deliberately and maliciously, see Figueroa, 825 F.3d at 98; see, e.g., Jean-Laurent, 2015 WL 1208318, at *5 (concluding ignoring an individual's “repeated oral and written requests for assistance . . . could plausibly rise to the level of deliberate and malicious behavior.”). Perhaps a single failed or delayed mailing might not give rise to a reasonable inference of deliberate and malicious conduct. Yet, the evidence here indicates Defendants repeatedly failed to process Heyliger's legal mail in a timely and professional manner. These delays caused Heyliger's notice of claim to be filed late at the New York Court of Claims, resulting in its dismissal as untimely and jurisdictionally defective. Taken together, this evidence gives rise to a reasonable inference that Defendants acted deliberately and maliciously. The undersigned accordingly recommends DENYING Defendants' motion for summary judgment on the grounds that Heyliger failed to produce evidence of deliberate and malicious conduct. (See Dkt. No. 68-11 at 13; see generally supra, note 4.)
2. Injury
Defendants claim they are entitled to judgment as a matter of law because Heyliger did not suffer an access to courts injury-he was able to pursue an Eighth Amendment excessive force claim in lieu of his common law assault claim. (Dkt. No. 68-11 at 7; Dkt. No. 68-7 at 2-3; see generally Heyliger v. Cymbrak, No. 17-CV-912.) Defendants accordingly argue Heyliger was “not completely foreclosed from seeking a judicial remedy with regard to the alleged October 28, 2015 excessive force incident.” (Dkt. No. 68-11 at 10.) Heyliger contends he was “completely foreclosed from seeking a non-frivolous” judicial remedy because the New York Court of Claims dismissed his untimely assault claim for lack of jurisdiction. (Dkt. No. 72-1 at 12.) He further argues he “sought a different remedy in the State than that which he sought in the federal forum,” and “the jury's determination in the federal court . . . has absolutely no bearing on what the outcome could have been in the State.” Id. Because Defendants' actions, as alleged, obstructed Heyliger's legitimate efforts to seek judicial redress in the New York Court of Claims, the undersigned concludes Heyliger suffered an access to courts injury. See Dixon v. von Blanckensee, 994 F.3d 95, 106 (2d Cir. 2021); Friedman, 884 F.3d at 90.
First, Heyliger suffered an access to courts injury because he was completely foreclosed from pursuing a common law assault claim in the New York Court of Claims. (See Dkt. No. 685 at 3-5.) The notice of claim Heyliger gave to the prison officials to mail on October 26, 2016, was timely delivered to the New York Attorney General. See id. at 4. Yet despite Heyliger's efforts, the notice of claim he gave to the prison officials that same day was not timely mailed to the New York Court of Claims. Compare id. at 5, with Dkt. No. 68-3 at 57-61, 71-74; Dkt. No. 72-1 at 17-18, 20, 30, 32-33. Because he did not timely serve the New York Court of Claims with a notice of claim, his common law assault claim was dismissed for lack of jurisdiction. (Dkt. No. 68-5 at 5; see generally Christopher, 536 U.S. at 422 n.22 (suggesting a backwards-looking access to courts claim would be viable “where the statute of limitations had run” on the underlying claim); Sousa, 702 F.3d at 128 (suggesting a backwards-looking access to courts claim “would be available only if the governmental action caused the plaintiff's suit to be dismissed as untimely.”).) In effect, Heyliger was “completely foreclosed” from prosecuting his common law assault claim before the New York Court of Claims. Sousa, 702 F.3d at 128. His legitimate efforts to seek judicial redress in the New York Court of Claims were stifled-he “could not . . . commence[]” his common law assault claim in the New York Court of Claims. See Christopher, 536 U.S. at 414. He enjoyed no access to the New York Court of Claims because it lacked jurisdiction over his untimely assault claim. See Friedman, 884 F.3d at 90. Heyliger was accordingly injured because he was denied the opportunity to pursue a non-frivolous claim in the court of his choosing. See Dixon, 994 F.3d at 106 (“In order to establish a violation of a right of access to courts, a plaintiff must demonstrate that a defendant caused actual injury . . . i.e., took or was responsible for actions that hindered a plaintiff's effort to pursue a legal claim.”).
Second, Heyliger's common law assault claim is a “species of property protected by the Fourteenth Amendment's Due Process Clause.” NY State NOW v. Pataki, 261 F.3d 156, 163 (2d Cir. 2001); see also Ponterio v. Kaye, No. 06 CIV. 6289 (HB), 2007 WL 141053, at *9 (S.D.N.Y. Jan. 22, 2007) (“Ponterio correctly notes that his denial of access claim is based on the alleged loss of his state court lawsuit itself, which is a species of property protected by the Fourteenth Amendment's Due Process Clause.”). It is a “cognizable property interest,” see Rosu v. City of New York, 742 F.3d 523, 526 (2d Cir. 2014), that involves a “separate and distinct right to seek judicial relief” than the property interest he has in an Eighth Amendment excessive force claim asserted under 28 U.S.C. § 1983, see Christopher, 536 U.S. at 414-15. Heyliger sought redress in this Court for an alleged Eighth Amendment excessive force claim, but he was prevented from seeking redress in the New York Court of Claims for a common law assault claim. (See Dkt. Nos. 68-5, 68-6.) Heyliger was forced to forfeit his common law assault claim before the New York Court of Claims because it was untimely. (See Dkt. No. 68-5 at 4-5.) He was deprived of a “species of property protected by the Fourteenth Amendment's Due Process Clause.” NY State NOW, 261 F.3d at 163. Heyliger was accordingly injured because he lost a cognizable property interest without due process.
Third, the New York State common law tort of assault is substantially different than an Eighth Amendment excessive force claim asserted under 28 U.S.C. § 1983. Compare Rivera v. State, 34 N.Y.3d 383, 389 (2019) (defining the common law torts of assault and battery), with Harris v. Miller, 818 F.3d 49, 63-65 (2d Cir. 2016) (explaining the subjective and objective elements of an Eighth Amendment excessive force claim). The two claims are governed by substantially different legal standards and are adjudicated in different judicial forums. The availability of any accompanying remedies is accordingly contingent upon Heyliger's ability to satisfy different legal standards by navigating the rules in different judicial forums. Heyliger had meaningful access to this Court because he presented his Eighth Amendment excessive force claim to a jury, which found for the defendants. (See Dkt. No. 68-7.) However, he did not have “meaningful access” to the New York Court of Claims, because it dismissed his untimely common law assault claim for lack of jurisdiction. Lewis, 581 U.S. at 351; see also Christopher, 536 U.S. at 422 n.22; Sousa, 702 F.3d at 128. Now, the only “remedy that may be awarded as recompense but not otherwise available in some suit that may yet be brought” is through Heyliger's instant access to courts claim. See Christopher, 536 U.S. at 415. Stated differently, Heyliger's access to courts claim is the only “presently existing claim” through which he seeks a judicial remedy for the underlying assault. See id. at 415-16, 422; see generally Kern, 2022 WL 1112767, at *3 (dismissing without prejudice the claimant's access to courts claim because she was “actively litigating the state law claims underlying her access claim,” and observing “[o]ther circuits in similar cases have concluded that such backward-looking claims were unripe and ordered that they be dismissed without prejudice.”) (collecting cases). Because Heyliger lost an opportunity to sue in the New York Court of Claims and no alternative existing claims can remedy the underlying harm, he suffered an access to courts injury. See Christopher, 536 U.S. at 415-16.
For the foregoing reasons, the undersigned concludes Heyliger was injured. See Dixon, 994 F.3d at 106; Sousa, 702 F.3d at 128. The undersigned accordingly recommends that the Court DENY Defendants' motion for summary judgment on the grounds that Heyliger suffered no injury. (See Dkt. No. 68-11 at 7-13.)
B. Interference with Legal Mail
Defendants claim they are entitled to judgment as a matter of law on Heyliger's interference with legal mail claim because he failed to produce evidence essential to his claim. (Dkt. No. 68-11 at 14-15; see generally Nick's Garage, 875 F.3d at 114.) Specifically, Defendants argue Heyliger failed to produce evidence demonstrating they engaged in an ongoing practice of censorship, chilled his right of access to the courts, or impaired his legal representation. (Dkt. No. 68-11 at 14-15.) Heyliger contends Defendants are not entitled to judgment as a matter of law because he demonstrated that they repeatedly interfered with his outgoing legal mail, prevented him from timely filing his notice of claim, and caused him to forfeit an assault claim in the New York Court of Claims. (Dkt. No. 72-1 at 13-15.) Believing Heyliger's evidence and drawing permissible inferences in his favor, see Anderson, 477 U.S. at 248, 255, the undersigned concludes a reasonable juror could find that Defendants repeatedly interfered with his outgoing mail and prevented him from timely filing his notice of claim with the New York Court of Claims, see Figueroa, 825 F.3d at 98.
Prisoners have a First Amendment right to the free flow of incoming and outgoing mail. Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003). “Restrictions on prisoners' mail are justified only if they further one or more of the substantial governmental interests of security, order, and rehabilitation . . . and must be no greater than is necessary or essential to the protection of the particular governmental interest involved.” Id. “In balancing the competing interests implicated in restrictions on prison mail, courts 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; see, e.g., LeBron v. Swaitek, No. 9:05-CV-172 (GLS) (DRH), 2007 WL 3254373, at *7 (N.D.N.Y. Nov. 2, 2007) (declining to dismiss claimant's interference with outgoing mail claim where “defendants ha[d] not proffered any reasons for the confiscation”); Cancel v. Goord, No. 00 CIV 2042 (LMM), 2001 WL 303713, at *7 (S.D.N.Y. Mar. 29, 2001) (denying a motion to dismiss “because Defendants have interfered with Cancel's outgoing legal mail without providing any legitimate penological interest”). The Supreme Court has accordingly recognized that “[t]he implications of outgoing correspondence for prison security are of a categorically lesser magnitude than the implications of incoming materials.” Thornburgh v. Abbott, 490 U.S. 401, 413 (1989).
“The First Amendment protects prisoners' access to mail directly, unlike the right of access to courts, which protects prisoners' access to mail only derivatively and with respect to given claims.” Dublino v. McCarthy, No. 9:19-CV-0381 (GLS) (DJS), 2019 WL 2053829, at *10 (N.D.N.Y. May 9, 2019) (quoting Bellezza v. Holland, No. 09-CV-8434 (RWS), 2011 WL 2848141, at *6 (S.D.N.Y. July 12, 2011)). “It is thus not necessary to allege actual injury when asserting a violation of one's right to the free flow of mail.” Id. (quoting Antrobus v. City of New York, No. 11-CV-2524, 2014 WL 1285648, at *4 (S.D.N.Y. Mar. 27, 2014) (collecting cases)); see also Bradshaw v. Burns, No. 9:19-CV-0931 (BKS) (DJS), 2020 WL 1129870, at *11 (N.D.N.Y. Mar. 9, 2020). However, “an isolated incident of mail tampering is usually insufficient to establish a constitutional violation.” Davis, 320 F.3d at 351.
In Washington v. James, the Second Circuit evaluated a First Amendment interference with mail claim where the claimant alleged the prison “administration regularly opened [claimant's] outgoing mail to his legal counsel without any showing that a substantial governmental interest required this procedure.” 782 F.2d at 1139. The defendants contended he “did not state a constitutional claim because he asserted only an isolated instance of interference with privileged mail.” Id. The Second Circuit explained that an isolated instance of interference “might not give rise to an action for damages under 42 U.S.C. § 1983 where the infraction was not in accordance with official policy or practice [of the prison] and where no showing had been made that the inmate's right of access to the courts was chilled or the legal representation he received was impaired.” Id. Because the claimant alleged “two separate incidents of interference with mail,” the Second Circuit denied defendants' motion to dismiss. Id. at 103940.
The Court also concluded “summary judgment would not have been proper either” because there was “a genuine issue of material fact [concerning] whether there has been a regular, unjustified interference with Washington's outgoing legal mail.” Washington, 782 F.2d at 1140.
The following rule emerged from Washington: “as few as two incidents of mail tampering could constitute an actionable [interference with mail] violation (1) if the incidents suggested an ongoing practice of censorship unjustified by a substantial government interest, or (2) if the tampering unjustifiably chilled the prisoner's right of access to the courts or impaired the legal representation received.” Davis, 320 F.3d at 351; see also Bradshaw, 2020 WL 1129870, at *12. Courts apply the Washington rule to claims involving both incoming and outgoing mail. See, e.g., Davis, 320 F.3d at 352 (applying the Washington rule to an instance of incoming mail tampering and an instance of outgoing mail tampering); Amaker v. Boyd, No. 9:19-CV-1253 (LEK) (ATB), 2020 WL 210317, at *8 (N.D.N.Y. Jan. 14, 2020) (applying the Washington rule to a claim involving incoming and outgoing mail); but see Davis, 320 F.3d at 351 (stating “courts have consistently afforded greater protection . . . to outgoing mail than to incoming mail.”); LeBron, 2007 WL 3254373, at *7 (applying different standard to claim involving outgoing mail); Cancel, 2001 WL 303713, at *7 (same).
Here, Heyliger produced evidence suggesting Defendants failed to send outgoing legal mail on October 26, 2016, improperly opened and returned that legal mail, delayed its re-mailing for nearly a month, may have been responsible for losing a key piece of evidence related to that legal mail, and caused the untimely delivery of his notice of claim to the New York Court of Claims. (See Dkt. No. 68-3 at 49, 57-61, 68-69, 71-74, 79, 81; Dkt. No. 68-5 at 3-5; Dkt. No. 72-1 at 11, 17-18, 20, 22, 26-28, 30, 32-33, 46-47, 52-59.) Defendants produced no evidence to contradict the evidence or impeach the testimony Heyliger offered in support of this version of events. (See Dkt. Nos. 68-1, 68-11.) Defendants have also failed to advance any reasons for why they needed to open or delay Heyliger's outgoing legal mail. (See Dkt. No. 68-11; see generally Acevedo v. Fischer, No. 12-CIV-6866 (RA) (AJP), 2015 WL 7769486, at *10 (S.D.N.Y. Dec. 2, 2015), report and recommendation adopted, 2016 WL 884909 (S.D.N.Y. Mar. 2, 2016) (applying different standards to the incoming and outgoing legal mail, and observing, “[t]he connection between the restriction on Acevedo's outgoing legal mail and the government interest served is not clear”); LeBron, 2007 WL 3254373, at *7; Cancel, 2001 WL 303713, at *7.)
Viewing this evidence, a reasonable juror could find that Defendants interfered with Heyliger's outgoing mail on at least two-if not three-separate occasions. See Figueroa, 825 F.3d at 98. A reasonable juror could conclude Defendants opened his outgoing notice of claim on October 26, 2016, failed to mail it to the New York Court of Claims, and improperly returned it to Heyliger. See id. A reasonable juror could also conclude Defendants delayed the re-mailing of his notice of claim for nearly a month. See id. This evidence is sufficient to defeat Defendants' motion for summary judgment. See Washington, 782 F.2d at 1139; Rossi v. Stevens, No. 04-CIV-1836 (CM) (LMS), 2005 WL 8146896, at *16-17 (S.D.N.Y. May 2, 2005); see also Antrobus v. City of New York, No. 11 CIV. 2524 (RA), 2014 WL 1285648, at *4 (S.D.N.Y. Mar. 27, 2014) (“Plaintiff's assertions that correction officers read, withheld, threw away, and refused to send out his mail for months at a time adequately allege a constitutional violation.”). Moreover, a reasonable juror could find that Defendants chilled Heyliger's right of access to the courts by delaying his outgoing legal mail, thus causing the New York Court of Claims to dismiss his untimely assault claim for lack of jurisdiction. See Figueroa, 825 F.3d at 98. This evidence indicates Defendants did not simply chill, but completely blocked Heyliger's access to the New York Court of Claims. Defendants advanced no reason for opening, failing to send, improperly returning, and delaying the re-mailing of Heyliger's legal mail. (See generally Dkt. No. 68-11; see also LeBron, 2007 WL 3254373, at *7; Cancel, 2001 WL 303713, at *7.) Heyliger has accordingly produced sufficient evidence to suggest Defendants “unjustifiably chilled [his] right of access to the courts.” See Davis, 320 F.3d at 351.
For the foregoing reasons, the undersigned concludes Heyliger met his burden of producing evidence that Defendants unjustifiably interfered with his outgoing mail and chilled his access to the courts. See id. The undersigned accordingly recommends that the Court DENY Defendants' motion for summary judgment on the grounds that Heyliger failed to produce evidence essential to his claim. (Dkt. No. 68-11 at 14-15; see generally Nick's Garage, 875 F.3d at 114.)
IV. CONCLUSION
For the foregoing reasons, the undersigned concludes Heyliger produced sufficient evidence for a reasonable juror to find in his favor on both claims, and Defendants are not entitled to judgment as a matter of law. See Figueroa, 825 F.3d at 98.
ACCORDINGLY, it is hereby
RECOMMENDED that Defendants' second motion for summary judgment (Dkt. No. 68) be DENIED; and it is further
ORDERED that the Clerk provide Plaintiff with a copy of this Order and ReportRecommendation, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW . Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed.R.Civ.P. 72, 6(a).
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. 6(a)(1)(C).