Opinion
9:99-CV-2068 (HGM)(RFT)
January 21, 2003
DONAHUE A. MILLER, JR., Plaintiff, Pro Se, McDonough, N.Y.
MICHAEL R. VACCARO, Esq., MELVIN, MELVIN LAW FIRM, Syracuse, NY, Attorney for Defendants
REPORT-RECOMMENDATION
This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b) and N.D.N.Y.L.R. 72.3(c).
Plaintiff Donahue Miller ("plaintiff" or "Miller") brings this pro se complaint pursuant to 42 U.S.C. § 1983, alleging defendants violated his constitutional rights while he was incarcerated at the Chenango County Jail ("Jail"). Specifically, Miller alleges that defendants provided inadequate law library facilities, did not allow him unlimited access to a typewriter, violated his right to privacy, and retaliated against him for filing a grievance in violation of the First and Fourteenth Amendments. Presently pending are cross motions for summary judgment pursuant to Fed.R.Civ.P. 56. Docket Nos. 19 and 32.
Plaintiff's motion papers also address alleged freezing of his inmate account. However, that claim was not included in the complaint in this action. In addition, plaintiff's motion papers address a number of events and alleged violations occurring after the November 29, 1999 filing of this action which were never added to this action by way of an amended pleading. Therefore, these issues are not properly before the Court in this action.
For the reasons that follow, it is recommended that plaintiff's motion for summary judgment be denied and defendants' motion for summary judgment be granted in part and denied in part.
I. Facts
Plaintiff was placed in the Jail on June 19, 1999. Originally, he was housed in a cell block, but was moved to a dorm after about one month. During plaintiff's incarceration he had a divorce action and an unspecified state court civil action pending. Plaintiff alleges he was pursuing both of these civil actions pro se. It is also evident from the record that plaintiff was also defending against criminal charges with the assistance of appointed counsel.
Plaintiff alleges that the inmates in the dormitory have freer movement, more access to showers, and physical access to the law library. Inmates in the cell block must request specific materials from the law library and only three books are allowed per request.
Plaintiff alleges that the law library facilities at the Jail were inadequate to allow him to prosecute his civil actions or to assist his appointed counsel on the criminal matter. Plaintiff complains that a number of his requests to have books or materials brought from the county library were not granted, and that his access to the typewriter was curtailed if there were others who needed to use the room where it was kept. With respect to the typewriter, the exhibits annexed to defendants' motion reveal that many of plaintiff's requests were granted and that each denial stated a reason why the room could not be accessed on a particular day (e.g., use for provision of mental health services, probation interviews, inmate visitation days, attorney visits). With respect to access to legal materials, the exhibits also reveal that a majority of the materials requested by plaintiff from the law library were granted. The exhibits in the record also reveal that plaintiff's requests for notary services and photocopies were recorded and honored. Plaintiff alleges that not being able to go to the law library, having to request specific legal materials, and not being able to get officers to make more than one trip per day to the library for him, required him to "spread his research out over a period of days" and caused him mental distress. Plaintiff does not allege that he suffered any harm or legal prejudice in any of his ongoing cases as a result of the alleged inadequacies of the law library facilities.
Plaintiff identifies four dates when his requests were not granted: August 25, October 4, October 6, and November 12, 1999.
Plaintiff alleges that in September and early October of 1999, he was providing legal advice to other inmates and that he was admonished not to do so by Sergeant Robertson. Plaintiff alleges that Sergeant Robertson promised to allow plaintiff to stay in the dorm provided he ceased giving legal advice to other inmates.
On October 14, 1999, plaintiff filed a letter of complaint against Officer Biviano regarding delivery of laundry. Plaintiff alleges that he was moved from the dorm to the cell block immediately after filing the complaint. On October 21, 1999, plaintiff wrote a letter to Officer Biviano stating that "I now realize there was ample rhyme and/or reason to your actions . . . if my complaint was filed, please let me know how I can go about withdrawing it. . . ." (Docket No. 32, Exhibit L). Further, plaintiff wrote to Sergeant Robertson on October 22, 1999, and stated ". . . I have come to the conclusion that I am at the loosing end of the stick . . . if my complaint was filed, I will withdraw it . . . I don't have time to help anyone else with legal work and therefore, I shouldn't be giving legal advice. I'm not going to ask to be moved back to the dorm, as I'm sure that will never happen but, if allowed to physically go to the law library, I am willing to accept a `write-up' for any advice I give without express permission. (Inmate Rules Regulations, pg 24, sect. (7)(B) . . . I ask that you consider this and, note that I am ready to do what ever necessary to re-gain my rights." (Id).
Plaintiff alleges that the defendants retaliated against him for giving legal advice to other inmates, and for filing the October complaint against Officer Biviano. This alleged retaliation included removing him from the dorm, placing him in a cell block and refusing to return him to the dorm, and denying him access to the facility grievance forms.
II. Discussion A. Summary Judgment Standard
Summary judgment may be granted when the moving party carries its burden of showing the absence of a genuine issue of material fact. Fed.R.Civ.P. 56; Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990) (citations omitted). "Ambiguities or inferences to be drawn from the facts must be viewed in the light most favorable to the party opposing the summary judgment motion." Id. However, when the moving party has met its burden, the nonmoving party must do more than "simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). At that point, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Id.
Given these principles, a non-moving party cannot survive a motion for summary judgment merely by relying on the allegations contained in its pleadings. Corselli v. Coughlin, 842 F.2d 23, 25 (2d Cir. 198). Although a pro se plaintiff is entitled to special latitude when defending against summary judgment, he or she must establish more than merely "metaphysical doubt as to the materials facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Vital v. Interfaith Medical Cir., 168 F.3d 615, 620-21 (2d Cir. 1999) (noting obligation of court to consider whether pro se plaintiff understood the nature of summary judgment process); Flores v. Graphtex, No. 96-CV-820, 1999 WL 185260, at *1 (N.D.N.Y. Mar. 31, 1999)(Munson, S.J.) ( pro se party's motions should be liberally construed).
B. Local Rules
The Local Rules of the Northern District of New York ("Local Rules") include the following provision:
Any motion for summary judgment shall contain a Statement of Material Facts. The Statement of Material Facts shall set forth, in numbered paragraphs, each material fact the moving party contends there exists no genuine issue. Each fact listed shall set forth a specific citation to the record where the fact is established. The record for purposes of the Statement of Material Facts includes the pleadings, depositions, answers to interrogatories, admissions and affidavits. It does not, however, include attorney's affidavits. Failure of the moving party to submit an accurate and complete Statement of Material Facts shall result in a denial of the motion.
N.D.N.Y.L.R. 7.1(a)(3) (emphasis in original).
Defendants have wholly failed to comply with the requirements of the Local Rules by failing to annex to their motion for summary judgment a Statement of Material Facts, and failing to respond to pro se plaintiff's Statement of Material Facts. The District's requirements are not empty formalities. Rules such as Local Rule 7.1(a)3 "serve to notify the parties of the factual support for their opponent's arguments, but more importantly inform the court of the evidence and arguments in an organized way — thus facilitating its judgment of the necessity for trial." Little v. Cox's Supermarkets, 71 F.3d 637, 641 (7th Cir. 1995). Each of these functions is vital. When a party fails to comply with these provisions it is unfair to his or her adversary, which has a right to know the factual bases of his or her opponent's case and the specific foundations for those assertions of fact; and such conduct is adverse to the conservation of judicial resources, which are most efficiently deployed when the parties fulfill their adversarial functions in a rigorously organized, coherent fashion. Jackson v. Broome County Correctional Facility, 194 F.R.D. 436, 437 (N.D.N.Y. 2000) (Kahn, J.); Grassi v. Lockheed Martin Fed. Sys., 186 F.R.D. 277, 278 (N.D.N.Y. 1999) (McAvoy, C.J.) (summary judgment motion dismissed for failure to file Statement of Material Facts); F.D.I.C. v. Rizzo, No. 95-CV-183,.1997.1997 WL 727551, at *1 (N.D.N.Y. Aug. 4, 1997) (McAvoy, C.J.) (same).
While defendants' failure is grounds for dismissing their motion per se, the Court notes that much of plaintiff's Statement of Material Facts is devoted to events occurring after the filing of this action. Therefore, the Court lacks jurisdiction to consider such events. Furthermore, even if deemed admitted, many of plaintiff's claims fail as a matter of law. Therefore, judicial economy is best served by determining the pending motions. However, counsel is advised that any future motion before this Court must comply fully with the Local Rules and failure to comply will result in dismissal of the motion.
C. Personal Involvement
As a prerequisite to an award of damages under section 1983, a plaintiff must demonstrate the personal involvement of each named defendant. Moffit v. Town of Brookfield, 950 F.2d 880, 886 (2d Cir. 1991). In essence, there is no respondeat superior liability in section 1983 actions. See Dumpson v. Rourke, No. 96 CV 621, 1997 WL 610652, at *7 (N.D.N.Y. Sept. 26, 1997) (Pooler, J.) (citing Polk County v. Dodson, 454 U.S. 312, 325 (1981); Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)). Therefore, a supervisory official may be personally involved only where the official (1) directly participated in the alleged violation; (2) failed to remedy the violation after learning of it through a report or appeal; (3) either created or continued an unconstitutional policy, custom or practice; or (4) was grossly negligent in managing the subordinates who caused the violation. Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986), accord, Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citations omitted).
Here, plaintiff named as defendants Loughren and Cutting. However, the complaint is devoid of any factual allegations pertaining to Loughren. It is well settled that "`where the complaint names a defendant in the caption but contains no allegation indicating how the defendant violated the law or injured the plaintiff. . . .'" there is no personal involvement. Hyde v. Arresting Officer Caputo, No. 98 CV 6722, 2001 WL 521699, at *2 (E.D.N.Y. May 11, 2001) (quoting Morabito v. Blum, 528 F. Supp. 252, 262 (S.D.N.Y. 1981)). Similarly, the allegations against Cutting are limited to his allegedly ignoring a letter from plaintiff, on an unspecified topic, at an unspecified time. "`[I]t is well-established that an allegation that an official ignored a prisoner's letter of protest and request for an investigation of allegations made therein is insufficient to hold that official liable for the alleged violations.'" Higgins v. Artuz, No. 94 CIV 4810, 1997 WL 466505, at *7 (S.D.N.Y. Aug. 14, 1997) (quoting Greenwaldt v. Coughlin, No. 93 Civ. 6551, 1995 WL 232736 at *3 (S.D.N.Y. April 19, 1995) and collecting cases).
Accordingly, it is recommended that Loughren and Cutting be dismissed as defendants.
D. Access to Courts Claims
It is well established that "prisoners have a constitutional right to access to the courts." Bounds v. Smith, 430 U.S. 817, 821 (1977), holding limited on other grounds by Lewis v. Casey, 518 U.S. 343 (1996). To establish standing for a claim for denial of right of access to courts, an inmate must show that he has suffered an actual injury traceable to the challenged conduct of prison officials — that is, that a nonfrivolous legal claim had been frustrated or was being impeded due to the actions of prison officials. Lewis v. Casey, 518 U.S. 343, 350 (1996). "To state a claim that his constitutional right to access the court was violated, plaintiff must allege facts demonstrating that defendants deliberately and maliciously interfered with his access to the courts, and that such conduct materially prejudiced a legal action he sought to pursue." Smith v. O'Connor, 901 F. Supp. 644, 649 (S.D.N.Y. 1995); see Morello v. James, 810 F.2d 344, 347 (2d Cir. 1987).
In this action plaintiff did not allege in the complaint, nor produce any evidence with this motion, that he was in any way prejudiced or harmed by the alleged deficiencies in the facility's law library. At best, plaintiff's research was slowed by the procedures in place that required that legal materials be delivered to him in his cell. It is also evident from the record before the Court that the procedure utilized with plaintiff to enable his access to legal materials was applied to all prisoners who were housed in the cell blocks. The record further reveals that plaintiff's pro se litigation efforts were focused on the civil and divorce actions he had pending, not on attacking his sentence or challenging the conditions of his confinement. Such underlying actions do not state a claim for denial of access to the courts. See Lewis, 518 U.S. at 354-55 (underlying action must be direct appeal of conviction, habeas corpus or civil rights action). Moreover, the record reveals that plaintiff had assigned counsel on his criminal matter and plaintiff has failed to even allege that he was unable to participate in his defense because of the Jail's procedures.
With respect to the alleged deprivation of access to the facility typewriter, the Court notes that the right of access to the courts does not require that inmates be provided with typewriters. Taylor v. Coughlin, 29 F.3d 39, 40 (2d Cir. 1994). Moreover, plaintiff was not denied all access to the typewriter. Rather, plaintiff's access was limited when there were other individuals or groups who needed to use the room in which the typewriter was available. Plaintiff has never alleged or proven that theses sporadic denials were not based upon the legitimate needs of the facility. However, because "the threshold of an infringement upon constitutional rights is not crossed justification need not be addressed." Taylor, 29 F.3d at 40.
Accordingly, it is recommend that defendants' motion for summary judgment be granted on plaintiff's access to the courts claim.
E. Violation of Right to Privacy
Plaintiff contends that his right to privacy was violated because he was forced to send his legal paperwork to an officer who did the photocopying and because he was forced to send his in forma pauperis application to the Commissary Officer fully completed before she would complete it. In the prison setting the constitutional right to privacy may be restricted to the extent necessary to further the penal institution's legitimate goals or policies. Bell v. Wolfish, 441 U.S. 520, 546 (1979).
With respect to the in forma pauperis application, it is not a document that plaintiff is entitled to maintain confidential. Rather, it is information that must be disclosed to the Court in order to determine whether plaintiff qualifies for such status. Moreover, it is a form that requires a prison official to complete and certify the financial data contained therein. See N.D.N.Y.L.R. 5.4. As a practical matter, in order for a commissary officer to complete such a form on behalf of an inmate they must know what inmate it pertains to. Otherwise, it could not be accurately completed. Thus, this Court finds that there is no expectation of privacy regarding the in forma pauperis application, and no constitutional violation arising from the conduct plaintiff complains of.
With respect to the access to photocopies, the Court first notes that plaintiff was not required to utilize the facility photocopier. Rather, as other decisions have noted, carbon paper or handwritten documents are accepted in the courts in this state. Cf. Gittens v. Sullivan, 670 F. Supp. 119 (1987), aff'd 848 F.2d 389 (2d Cir. 1988). Moreover, from the record before the Court, it is clear that the facility kept records of the legal copying requests and the facility's compliance with those requests, and kept records of the number of copies requested by an inmate for payment purposes. Plaintiff has not alleged, nor offered this Court any proof that the procedures about which he complains were not necessary to further the institution's legitimate goals or policies of securing payment and ensuring that photocopying requests were honored, or that he sustained any injury or prejudice as a result of the procedures about which he complains. Accordingly, this Court finds that the procedures about which plaintiff complains neither denied him access to the courts or violated any constitutionally protected right to privacy and the Court recommends that defendants' motion for summary judgment on the privacy claim be granted.
There is no requirement that an inmate receive "free or unlimited access to photocopying machines." Johnson v. Parke, 642 F.2d 377, 380 (10th Cir. 1981). Requiring inmates to pay for the cost of photocopies is not tantamount to the denial of access to the courts. Id.
F. Retaliation Claim
Retaliation is a viable claim when plaintiff alleges that adverse actions are taken in retaliation for the exercise of a constitutional right. See Franco v. Kelly, 854 F.2d 584, 588-90 (2d Cir. 1988). The Second Circuit has recently revisited the issue of retaliation claims. See Dawes v. Walker, 239 F.3d 489, 491-93 (2d Cir. 2001). In Dawes, the Court stated that courts must approach claims of retaliation "with skepticism and particular care." Id. at 481 (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)). In order to survive dismissal, the plaintiff must advance "non-conclusory" allegations establishing:
(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 [or conduct] and the adverse action.Id. at 492 (citations omitted). In considering these claims, the Court is mindful that because "retaliation claims can be fabricated easily, plaintiff's bear a somewhat heightened burden of proof, and summary judgment can be granted if the claim appears insubstantial." Justice v. Coughlin, 941 F. Supp. 1312, 1317 (N.D.N.Y. 1996) (Pooler, J.); Gill v. PACT Org., 1997 WL 539948, *12 (S.D.N.Y. Aug. 28, 1997) (citations omitted). If the plaintiff satisfies his burden, the defendants must then prove that they would have taken the action even in the absence of plaintiff's protected conduct — that is, "even if they had not been improperly motivated." Graham v. Henderson, 89 F.3d 75. 79 (2d Cir. 1996).
Plaintiff alleges that the defendants moved him to the cell block, denied him the right to return to the dorm setting, and denied him access to the facility grievance forms and grievance procedures, in retaliation for exercise of his constitutional rights. Plaintiff alleges that the acts of retaliation were due to plaintiff's filing of the complaint against Officer Biviano on or about October 14, 1999, and due to plaintiff providing legal advice to other inmates.
The Court acknowledges that plaintiff does not have a constitutional right to remain in preferred housing. However, any action done in retaliation for the exercise of a constitutional right, even if not unconstitutional in itself, states a viable constitutional claim. Franco v. Kelly, 854 F.2d 584, 588-90 (2d Cir. 1988).
With respect to the claim that plaintiff was retaliated against because he provide legal advice to other inmates, while prisoners have a constitutional right of access to the courts, they do not have a constitutional right to assist other inmates in petitioning the courts. Shaw v. Murphy, 532 U.S. 223, 231 (2001) (a prisoner possesses no First Amendment right to provide legal assistance to other prisoners); see also Smith v. Maschner, 899 F.2d 940, 950 (10th Cir. 1990) (no constitutional right to assist other inmates with legal claims); Gassier v. Rayl, 862 F.2d 706, 707-08 (8th Cir. 1988). While there is no independent right to provide legal assistance to other inmates, "prison officials may not prevent such assistance or retaliate for providing such assistance where no reasonable alternatives are available." See Gibbs v. Hopkins, 10 F.3d 373, 378 (6th Cir. 1993). In this case, Miller has not alleged that there was no other reasonable alternative available or that other inmates were denied legal assistance. He has only alleged a violation of his constitutional rights in retaliation for his engaging in this conduct. Since the conduct at issue is not protected, it is recommended that defendants' motion for summary judgment be granted on Miller's retaliation claim based upon his legal advisory activities.
Turning to the claim that plaintiff was retaliated against due to his filing of a complaint against officer Biviano, Miller's allegations that adverse action was taken against him for exercising a constitutionally protected right, such as filing a grievance, satisfied the first two elements of a retaliation claim. Clearly, plaintiff has a right to "free and uninhibited access . . . to both administrative and judicial forums for the purposes of seeking redress of grievances against state officers." Franco v. Kelly, 854 F.2d at 589. Defendants have not controverted plaintiff's assertion that he was moved to the cell block on the day he filed his complaint, other than the general denial in their answer. Rather, defendants submitted an affidavit by counsel suggesting that the action by the defendants was justified. Defense counsel, however, does not have personal knowledge of the underlying facts; therefore, his affidavit on this issue is not considered.
Plaintiff must also establish that there is a causal connection between the protected activity and the adverse action. A number of facts are to be considered in determining whether a causal connection exists between plaintiff's protected activity and defendants' actions in the context of a retaliation claim: (1) the temporal proximity between the protected activity and the adverse action; (2) the inmate's prior disciplinary record; (3) the outcome of any hearing concerning the charges alleged to be retaliatory; and, (4) any statements of the defendants concerning their motivation. Colon v. Coughlin, 58 F.3d 865, 872-73 (2d Cir. 1995); Walker v. Goord, 2000 WL 297249, at *5 (S.D.N.Y. Mar. 22, 2000).
In this case, Miller has alleged that he was moved from the dormitory to the cell block on the same day that the that he filed his complaint. This, "temporal proximity" serves as circumstantial evidence of retaliatory action. See Gayle v. Gonyea, 313 F.3d 677, ___, 2002 WL 31757056, at *5 (2d. Cir. Dec. 10, 2002). As to the three other factors this Court could consider in this determination, there has been no proof offered that would allow this Court to draw any inferences as to any of those factors. Finally, although defendants could have provided the Court with evidence of that the movement of Miller would have occurred despite the protected activity, they did not.
With respect to the allegations that plaintiff was denied access to grievance forms in retaliation for his filing of the complaint, plaintiff has offered this Court no allegations or information as to when those denials allegedly occurred. In light of the pleading requirements for a retaliation claim, plaintiff's conclusory allegations are insufficient. Furthermore, plaintiff has failed to establish a temporal relationship or any of the other factors that would permit this Court to draw inferences with respect to a causal connection between the protected activity and the alleged adverse consequences.
Accordingly, this Court finds that there is a genuine issue of material fact as to whether retaliation for the grievance was a substantial factor in the defendants' decision to move plaintiff to the cell block, and the Court will recommend that summary judgment on this claim be denied. The Court finds that plaintiff has failed to allege a nonconclusory claim with respect to the denial of access to the grievance forms and thus it is recommend that defendants' motion on that claim be granted.
WHEREFORE, based on the above, it is hereby
RECOMMENDED that defendants' motion for summary judgment (Docket No. 32) be GRANTED with respect to the access to the courts claim, the privacy claim, and the retaliation claims based upon plaintiff's legal advisory activities and based upon alleged denial of access to grievance forms, but DENIED as to the retaliation claim based upon plaintiff's filing of the grievance against Officer Biviano and plaintiff's subsequent move to the cell block, and it is further,
RECOMMENDED that plaintiff's motion for summary judgment (Docket No. 19) be DENIED.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have ten 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 TO THE ASSIGNED DISTRICT JUDGE WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racete, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).