Opinion
04-CV-6260Fe.
June 17, 2004
MEMORANDUM and ORDER
INTRODUCTION
Plaintiff James Pettus, an inmate of the Elmira Correctional Facility, has filed this pro se action seeking relief under 42 U.S.C. § 1983 (Docket No. 1). Plaintiff claims that the defendants, Southport Correctional Facility Deputy of Programs Bartlett and the Supervisor of the Southport Correctional Facility Mail Room and Correspondence, violated his constitutional rights by opening his mail outside his presence and removing a check that plaintiff received in settlement of another lawsuit.
Plaintiff has both requested permission to proceed in forma pauperis and filed a signed Authorization (Docket No. 2). Also, plaintiff has submitted a discovery request seeking the name of the Mail room supervisor who worked on the date in question, (Docket No. 3), and a motion for injunctive relief, (Docket No. 4), in which plaintiff seeks replacement of the money he claims was taken form his mail. For the reasons discussed below, plaintiff's request to proceed as a poor person is granted, his claims regarding the wrongful taking of his check are dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) and 1915A, the motion for a preliminary injunction is denied, his discovery request is directed to be served, and service by the U.S. Marshals is ordered with respect to the remaining First Amendment claims.
DISCUSSION
Because plaintiff has met the statutory requirements of 28 U.S.C. § 1915(a) and filed an Authorization with respect to this action, plaintiff is granted permission to proceed in forma pauperis. Sections 1915(e)(2)(B) and 1915A(a) of 28 U.S.C. require the Court to conduct an initial screening of this complaint. In evaluating the complaint, the Court must accept as true all factual allegations and must draw all inferences in plaintiff's favor. See King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999). Plaintiff brings this action pursuant to 42 U.S.C. § 1983. "To state a valid claim under 42 U.S.C. § 1983, the plaintiff must allege that the challenged conduct (1) was attributable to a person acting under color of state law, and (2) deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States." Whalen v. County of Fulton, 126 F.3d 400, 405 (2d. Cir. 1997) (citing Eagleston v. Guido, 41 F.3d 865, 875-76 (2d Cir. 1994)). Dismissal is not appropriate "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). "This rule applies with particular force where the plaintiff alleges civil rights violations or where the complaint is submitted pro se." Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998).
Complaint
Based on its evaluation of the complaint, the Court finds that, to the extent plaintiff is claiming defendants improperly took or kept his check, such claims must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 1915A(b) because the fail to state a claim upon which relief may be granted. It has long been held that:
an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful post-deprivation remedy for the loss is available.Hudson v. Palmer, 468 U.S. 517, 533 (1984). New York provides such a remedy in § 9 of the New York Court of Claims Act. Assuming that plaintiff was deprived of property within the meaning of the Fourteenth Amendment, the deprivation was not without due process of law because New York provides an adequate post-deprivation remedy. Love v. Coughlin, 714 F.2d 207, 208-09 (2d Cir. 1983). Plaintiff thus has an adequate remedy under state law and the claims regarding the conversion of plaintiff's property are hereby dismissed. The remaining First Amendment claims regarding the improper handling and interference with his mail may go forward as pleaded.
Injunctive Relief
In his motion for a preliminary injunction, plaintiff seeks immediate replacement of the $650 plus interest, which he claims was taken from his mail. "A party seeking a preliminary injunction must demonstrate `(1) irreparable harm should the injunction not be granted, and (2) either (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits and a balance of hardships tipping decidedly toward the party seeking injunctive relief.'" N.A.A.C.P., Inc. v. Town of East Haven, 70 F.3d 219, 223 (2nd Cir. 1995) (quoting Resolution Trust Corp. v. Elman, 949 F.2d 624, 626 (2d Cir. 1991)); PSC, Inc. v. Reiss, 111 F. Supp.2d 252, 254 (W.D.N.Y. 2000). The "`serious questions' prong is also frequently termed the `fair ground for litigation' standard." N.A.A.C.P., Inc. v. Town East Haven, 70 F.3d at 223.Here, the claims regarding the wrongful taking of the check have been dismissed. His First Amendment claims survive this initial review, because an inmate has a right to be present when his legal mail is opened, Wolff v. McDonnell, 418 U.S. 539, 574-76 (1974), and plaintiff has alleged intentional tampering with his legal mail outside his presence. See Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003). Nevertheless, plaintiff has not demonstrated either irreparable harm or sufficient likelihood of success on the merits as to warrant the extraordinary relief of a preliminary injunction. Distribution Systems of America, Inc. v. Village of Old Westbury, 785 F. Supp. 347, 352 (E.D.N.Y. 1992) (quoting JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 79 (2d Cir. 1990)). Accordingly, the motion for preliminary injunctive relief is denied.
CONCLUSION
Because plaintiff has met the statutory requirements of 28 U.S.C. § 1915(a) and filed an Authorization with respect to the filing fee, his request to proceed in forma pauperis is hereby granted. For the reasons discussed above, plaintiff's claims regarding the wrongful taking of the check from his mail are dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 1915A. The motion for a preliminary injunction is denied. The U.S. Marshal is directed to serve the summons and complaint on Deputy Bartlett regarding the remaining First Amendment claims.
Further, plaintiff has sought to identify defendant Mail room/Correspondence Supervisor through discovery. While his interrogatories are premature as issue has not yet been joined, plaintiff is proceeding pro se and is an inmate presently held at a Correctional Facility other than the facility where the complained — of events allegedly occurred. Therefore, the Court directs that the interrogatory be served with the summons and complaint, and defendant Deputy Bartlett respond. See Valentin v. Dinkins, 121 F.3d 72, 76 (2d Cir. 1997) (district courts must assist pro se incarcerated litigants with their inquiry into the identities of unknown defendants). Plaintiff may pursue further discovery, if necessary, to learn the identity of the Supervisor of the Mail room and Correspondence at Southport Correctional Facility. He may then apply to this Court for an order directing amendment of the caption and service on the defendant as soon as he or she has been identified.
ORDER
IT HEREBY IS ORDERED, that plaintiff's request to proceed in forma pauperis is granted;
FURTHER, that the claims regarding the wrongful taking of plaintiff's check out of his mail are dismissed with prejudice;
FURTHER, that plaintiff's motion for a preliminary injunction is denied;
FURTHER, that the Clerk of the Court is directed to file plaintiff's papers, and to cause the United States Marshal to serve copies of the Summons, Complaint, Interrogatory (Docket No. 3), and this Order upon Deputy Bartlett without plaintiff's payment therefor, unpaid fees to be recoverable if this action terminates by monetary award in plaintiff's favor;
FURTHER, that defendant Bartlett respond to the discovery request (Docket No. 3); and
FURTHER, that pursuant to 42 U.S.C. § 1997e(g)(2), the defendants are directed to answer the complaint.
SO ORDERED.