Opinion
9:14-CV-0803 (BKS/TWD)
10-16-2015
JOHNATHAN JOHNSON, Plaintiff, v. JEFF MCKAY, GAIL HAPONIK, JOSEPH BELLINIER, MAUREEN E. BOLL, BRIAN FISCHER, DAVID ROCK, THEODORE ZERNIAK, and DONALD UHLER, Defendants.
APPEARANCES: Plaintiff Pro Se Jonathan Johnson 89-A-1042 Upstate Correctional Facility P.O. Box 2001 Malone, NY 12953 For Defendants: Hon. Eric T. Schneiderman Attorney General for the State of New York by Ryan L. Belka, Assistant Attorney General Main Place Tower 350 Main Street, Suite 300A Buffalo, NY 14202
APPEARANCES: Plaintiff Pro Se
Jonathan Johnson
89-A-1042
Upstate Correctional Facility
P.O. Box 2001
Malone, NY 12953
For Defendants:
Hon. Eric T. Schneiderman
Attorney General for the State of New York
by Ryan L. Belka, Assistant Attorney General
Main Place Tower
350 Main Street, Suite 300A
Buffalo, NY 14202
Hon. Brenda K. Sannes, United States District Court Judge
MEMORANDUM-DECISION AND ORDER
INTRODUCTION
Plaintiff pro se Johnathan Johnson commenced this action against Defendants Jeff McKay, Gail Haponik, Carl Koenigsmann, Joseph Bellinier, Maureen E. Boll, Brian Fischer, David Rock, Theodore Zerniak, and Donald Uhler, asserting claims under 42 U.S.C. § 1983 and New York state law arising out of his incarceration at Upstate Correctional facility. (Dkt. No. 5). After Defendants moved to dismiss the Complaint for failure to state a claim (Dkt. No. 2), the matter was referred to United States Magistrate Judge Thérèse Wiley Dancks, who issued a Report-Recommendation on March 4, 2015, recommending that Plaintiff be granted leave to amend his claim regarding denial of access to the courts, but denied leave to amend his claim regarding denial of access to prison grievance procedures. (Dkt. No. 19). On April 16, 2015, the Court adopted the Report-Recommendation in its entirety. (Dkt. No. 21).
On April 24, 2015, Plaintiff filed an Amended Complaint. (Dkt. No. 24). Plaintiff alleges that Defendants: (1) denied him access to the courts by depriving him of paper, mail, outside communications, and access to the prison law library; and (2) retaliated against him for filing lawsuits and grievance complaints. (Dkt. No. 24). On April 29, 2015, Defendants moved to dismiss the Amended Complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 26). The matter was again referred to Magistrate Judge Dancks, who issued a Report-Recommendation on September 3, 2015, recommending that Plaintiff's claim for denial of access to the courts be dismissed with prejudice, but that Plaintiff be granted leave to amend his First Amendment retaliation claim against Defendants Donald Uhler and Theodore Zerniak. (Dkt. No. 30).
DISCUSSION
Plaintiff filed objections to the Report-Recommendation on September 14, 2015, objecting only to the recommended dismissal of his access to the courts claim. (Dkt. No. 32). Plaintiff asserts that he "misconstrued the court's directions" that he must allege facts to plausibly suggest a nonfrivolous underlying claim that has been frustrated by the Defendants' actions in order to state a claim for denial of access to the courts. (Id., pp. 1-2). Plaintiff further states that he "can and should be granted leave to interposes [sic] the claims that he sustained injury..." (Id., p. 2). Thus, Plaintiff requests leave to amend his claim and file a Second Amended Complaint. (Id., p. 4). Defendants have not responded to Plaintiff's objections.
This Court reviews de novo those parts of a report and recommendation to which a party specifically objects. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3). Under de novo review, the Court must "examine the entire record, and make an independent assessment of the magistrate judge's factual and legal conclusions." Almonte v. N.Y. State Div. of Parole, No. 04 Civ. 484, 2006 WL 149049, at *5, 2006 U.S. Dist. LEXIS 2926, at *15 (N.D.N.Y. Jan. 18, 2006) (citing United States v. Raddatz, 447 U.S. 667, 675 (1980)). Findings and recommendations as to which there was no properly preserved objection are reviewed for clear error. Petersen v. Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); see also Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition.
Upon de novo review, the Court accepts and adopts the Report-Recommendation to the extent it recommends dismissal of Plaintiff's denial of access to the courts claim. Magistrate Judge Dancks accurately recounted the facts and procedural history of this case and employed the proper legal standards in finding deficiencies in Plaintiff's claim. However, in light of Plaintiff's pro se status and his representation that he misunderstood the Court's previous decision, Plaintiff will be granted leave to amend his denial of access to the courts claim. See Fed. R. Civ. P. 15(a)(2) ("The court should freely give leave when justice so requires."); Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (A pro se complaint should not be dismissed "without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.") (internal citation omitted). As explained in the Court's decision dated April 16, 2015 (Dkt. No. 21), to state a claim for denial of access to the courts under § 1983, Plaintiff must allege facts to plausibly suggest: "(1) a 'nonfrivolous, arguable underlying claim' that has been frustrated by the defendants' actions, and (2) a continued inability to obtain the relief sought by the underlying claim." Arar v. Ashcroft, 585 F.3d 559, 592 (2d Cir. 2009) (quoting Christopher v. Harbury, 536 U.S. 403, 415 (2002)). Thus, Plaintiff must specifically identify and describe the nonfrivolous claims or court cases that were frustrated by Defendants' actions.
Upon review of the remainder of the Report-Recommendation for clear error, the Court finds none. Plaintiff has failed to state a plausible claim for First Amendment retaliation against Defendants Uhler and Zerniak, for the reasons stated in the Report-Recommendation. As recommended by Magistrate Judge Dancks, Plaintiff will be granted leave to amend this claim.
CONCLUSION
It is therefore
ORDERED that the Report-Recommendation (Dkt. No. 30) is ADOPTED in part and REJECTED in part; and it is further
ORDERED that Defendants' Motion to Dismiss (Dkt. No. 26) is GRANTED; and it is further
ORDERED that Plaintiff's claim for denial of access to the courts is DISMISSED without prejudice; and it is further
ORDERED that Plaintiff's claim for First Amendment retaliation is DISMISSED without prejudice; and it is further
ORDERED that within 30 days of the date of this Memorandum-Decision and Order, Plaintiff may file a Second Amended Complaint limited to his claims for denial of access to the courts and First Amendment retaliation; and it is further
ORDERED that if Plaintiff fails to file a Second Amended Complaint within 30 days of this Memorandum-Decision and Order, this action will be dismissed; and it is further;
ORDERED that the Clerk of the Court shall serve on the parties a copy of this Memorandum-Decision and Order in accordance with the Local Rules of the Northern District of New York; and it is further
ORDERED that the Clerk of the Court shall provide Plaintiff with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
IT IS SO ORDERED. October 16, 2015
Syracuse, New York
/s/_________
Brenda K. Sannes
U.S. District Judge