Opinion
95-CV-0547E(F)
August 23, 2000
ATTORNEYS FOR THE PLAINTIFF: Pamela Meyer-Scirri, Esq., c/o Silverberg, Yood, Sellers McGorry, 515 Brisbane Bldg., Buffalo, N.Y. 14203.
ATTORNEYS FOR THE DEFENDANT: William D. Lonergan, Esq., Asst. Attorney General of NYS, 107 Statler Towers, Buffalo, N.Y. 14202.
MEMORANDUM and ORDER
Plaintiff, currently incarcerated at the Attica Correctional Facility ("Attica"), has filed suit for damages arising out of two incidents at the facility in which he alleges has legal materials were taken by state employees and has civil rights thereby abridged. In particular, plaintiff claims that defendants denied has First Amendment right of access to the courts. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 1983. Defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("FRCvP"); such motion will be granted and this case will be closed.
The latter statute provides, in relevant part: "Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State . . . subjects, or causes to be subjected . . . [any] person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party in an action at law. . . ."
The standard for summary judgment is well established. Summary judgment "shall be rendered forthwith" if the record reveals "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); FRCvP 56(c). A factual dispute is material if its resolution "might affect the outcome of the suit under the governing law" and is genuine if it reasonably could be resolved in favor of any party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-250 (1986). Evidence submitted by the non-moving party is to be believed and all justifiable inferences are to be drawn in such party's favor. See Anderson, at 255. Summary judgment shall be entered against a party bearing the burden of proof at trial, if the existence of any element essential to such party's case is not established. See Celotex, at 322. As the non-movant, plaintiff also cannot defeat a summary judgment motion "by relying on the allegations in has pleading . . ., or on conclusory statements, or on mere assertions that affidavits supporting the motion are not credible." Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996).
In the instant case, plaintiff has not submitted a memorandum of law. Local Rule of Civil Procedure 7.1(e) states, in relevant part: "Absent leave of court . . ., upon any motion filed pursuant to [FRCvP] 12, 56 or 65(a), . . . the opposing party shall file and serve with the papers in opposition to the motion an answering memorandum and a supporting affidavit. Failure to comply with this subdivision may constitute grounds for resolving the motion against the non-complying party." (emphasis added). Despite this procedural non-compliance by plaintiff, this Court will consider the motion on the merits and rely upon plaintiff's affidavit (Doc. #60) and statement of disputed facts (Doc. #61).
A prerequisite to a finding of liability under section 1983 is a finding that the defendants deprived the plaintiff of an actual constitutional right. See Rizzo v. Goode, 423 U.S. 362, 370-371 (1976). The United States Supreme Court has stated that prison inmates have a substantive, constitutional right of access to the courts and such is protected by the First Amendment. See Bounds v. Smith, 430 U.S. 817 (1977); see also Morello v. James, 810 F.2d 344, 346 (2d Cir. 1987). This right of access is unconstitutionally denied if prison officials deliberately and maliciously confiscate legal materials, fail to return them and the confiscation materially prejudices a legal action which the inmate is pursuing. See Morello, at 347; Duff v. Coughlin, 794 F. Supp. 521, 524 (S.D.N.Y. 1992); Hikel v. King, 659 F. Supp. 337, 340 (E.D.N.Y. 1987). Negligence alone, however is insufficient to establish a constitutional violation because "section 1983 [can]not be made a vehicle for transforming mere civil tort injuries into constitutional injuries." Franco v. Kelly, 854 F.2d 584, 588 (2d Cir. 1988) (alteration in original) (quoting Morello, at 347). The Supreme Court has also recognized that the circumstances of confinement and the needs of the penal institution impose limitations on constitutional rights, including those protected under the First Amendment. See Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 125 (1977).
Plaintiff's allegations are bottomed on two temporally distant but interrelated incidents. The first incident, alleged to have occurred July 19, 1993, involved the confiscation of legal papers that had been transported in violation of prison rules. See Compl., Statement of Claim. The second incident, alleged to have occurred August 1, 1998, involved the confiscation from has prison cell of legal books and papers and is allegedly related to the aforementioned incident. See Supp. Compl.
Turning to the facts surrounding the July 1993 incident, it is undisputed that, while plaintiff was eating breakfast, defendant Beatty, a corrections officer at Attica, conducted a search of plaintiff's school materials which had been placed on a "school cart" prior to has entering the prison messhall. See Statement of Undisputed Facts ¶¶ 3, 5; Aff. in Oppn. ¶ 8; Statement of Disputed Facts ¶ 1. During this search, Beatty observed a notebook containing handwritten notes that appeared legal in nature. Id. ¶ 6. Realizing that prison rules in effect at that time expressly prohibited bringing legal materials into the vocational and academic school area and that the inmates who placed materials on the cart were scheduled for school after breakfast, defendant Beatty confiscated the materials and placed them on top of a filing cabinet, after which they became lost and were not recovered following an investigation. See Statement of Undisputed Facts ¶¶ 8, 11, 13-15.
Incorrectly identified in the caption as "Beaty."
Plaintiff argues that possession of legal materials was not prohibited in the academic school area and it was only after this incident that prison rule was clarified in the "Inmate Orientation Guideline Manual" to specifically prohibit legal papers in the academic school and in the vocational school. Compare Aff. in Opp'n Ex. B with Ex. C; see also Statement of Disputed Facts ¶¶ 3-4. However, it remains undisputed that several months prior to the July 1993 incident, such clarification was first implemented by Memorandum dated March 5, 1993. Beatty Aff. Ex. C. It is also undisputed that plaintiff was proceeding to the vocational school after breakfast. For these reasons, plaintiff's argument fails to raise a genuine issue as to any material fact.
While the loss of these materials is certainly unfortunate, plaintiff has not shown how he has been materially prejudiced by the loss of what he describes as "irreplaceable momentous Legal and Educational Materials accumulated during the period of which I've been incarcerated" — Compl., Statement of Claim, lines 7-9 — and, just because an inmate has been deprived of has property by has jailer, a constitutional deprivation is not automatically assumed. See, e.g., Hudson v. Palmer, 468 U.S. 517, 536 (1984) (holding that inmate's personal property destroyed in a search of a prison locker was not a constitutional deprivation inasmuch as a state remedy existed); Boddie v. Brunelle, No. 95-CV-748H, 1997 WL 626407, at *9 (W.D.N.Y. Sept. 19, 1997) (finding no material prejudice when the plaintiff could not assist in the preparation of has appeal inasmuch as attorney was still able to perfect the appeal). Plaintiff is required to show actual injury and "demonstrate that the alleged shortcomings . . . hindered has efforts to pursue a legal claim." Lewis v. Casey, 518 U.S. 343, 351 (1996). Plaintiff has not alleged, for example, that he resultantly was unable to meet any court deadline, as for an appeal or habeas corpus petition.
It is also pertinent to note that plaintiff exercised has privilege of filing a grievance — Aff. in Opp'n ¶ 22 — and a lawsuit in state court which was ultimately dismissed for "failure to timely and/or properly serve the claim in accordance with the Court of Claims Act." Statement of Undisputed Facts ¶¶ 23-24. Inasmuch as the merits of plaintiff's claim were not adjudicated in the Court of Claims due to has own default, he may not claim that there was a constitutional violation in this situation because the merits of has claim were not heard by a state court. Plaintiff has not shown with specificity how has constitutional right of access to the courts, as developed by Bounds and its progeny, was infringed upon by the state defendants. Even viewing the record in the light most favorable to plaintiff, there is no genuine issue of material fact as to the incident alleged to have occurred July 14, 1993 and the defendants are entitled to summary judgment on this claim.
Turning to the second incident, Corrections Officer Stanton removed some boxes — which included a folder containing legal materials — from plaintiff's prison cell. Such materials purportedly violated prison fire regulations. The parties' versions of the subsequent events differ somewhat. Stanton states that he made "what [he] thought was a good faith effort to avoid confiscating any material which would be legal in nature" but concedes that he did in fact confiscate one "small folder of legal materials." Stanton Aff. ¶¶ 6, 7. Defendants claim they then tried to remedy the situation by attempting to return the legal materials but plaintiff has recalcitrantly refused accept such. See Sinicki Aff. ¶¶ 7-8. Plaintiff contends that he refused to sign for the legal materials because other items confiscated by Stanton were not being returned. See Aff. in Opp'n ¶ 37. He contends that all of the material was legal in nature and objects to characterization that Stanton acted in good faith. See id. ¶ 39.
Plaintiff alleges that all of has legal books were seized, including legal dictionaries and several "hornbooks." See Supp. Compl. ¶¶ 7-8.
With respect to the loss of law books, such as Black's Law Dictionary and those covering the state and federal rules of civil and criminal procedure, plaintiff has not shown material prejudice inasmuch as such material undoubtedly has been and is available in the prison library at Attica. This incident also occurred in August 1998, some nine months after this Court appointed counsel for plaintiff. There is simply nothing in the record to suggest that plaintiff was materially prejudiced in has efforts to prosecute this case by actions attributable to any defendant. Even assuming, arguendo, that the actions of certain prison officials delayed has lawsuit or forced him to spend more time in pursuance thereof, there remains no sufficient showing of a deprivation of a constitutional right as to create a cognizable section 1983 claim. See Roston v. Mantello, No. 88-CV-1273E(M), 1995 WL 129044, at *3 (W.D.N.Y. Mar. 20, 1995); Herrera v. Scully, 815 F. Supp. 713, 725 (S.D.N.Y. 1993). With respect to the second claim, there is no genuine issue as to any material fact and defendants are entitled to summary judgment.
Defendants further argue that the claim against defendant Donnelly, Deputy Superintendent for Security at Attica during the time of the first incident, should be dismissed because he was not personally involved in alleged violations of plaintiff's civil rights. It is well settled that "personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)). In the instant case, Donnelly did not conduct the search or confiscate any of the materials in question and did not directly participate in the inmate grievance process. See Donnelly Aff. ¶¶ 4-5. Consequently, for Donnelly to be held liable for a section 1983 violation, the Second Circuit Court of Appeals has outlined four discrete methods to impute liability, Donnelly must have (1) participated directly or be directly involved through ordering an action, (2) failed to remedy a wrong after learning of the violation, (3) created a policy or custom under which the unconstitutional practice occurs or (4) have been grossly negligent in managing the subordinate who directly caused the violation. See Williams v. Smith, 781 F.2d 319, 323-324 (2d Cir. 1986).
Plaintiff relies on the second basis for liability of Donnelly — i.e., that he failed to remedy the confiscation of the legal materials after he became aware the July 1993 incident. See Aff. in Opp'n ¶¶ 25-26. The record, however, does not substantiate a finding that Donnelly was made aware of the situation such that he could correct any problem. His most direct contact with this incident is as a recipient (along with six other individuals) of a courtesy copy of the grievance decision on August 12, 1993. See Aff. in Opp'n Ex. F. The confiscated materials had been placed on top of a filing cabinet shortly after the July incident, were deemed "lost" on or about July 22, 1993 and it was likely already too late for anything to be done concerning such when, nearly one month later, Donnelly was finally made aware of the incident. Plaintiff has not shown the Donnelly had been in a position to correct the problem and, even if he had been, it well may have been too late to do so. Several cases have held more significant involvement to be insufficient to create section 1983 liability. See, e.g., Rode v. Dellarciprete, 845 F.2d 1195, 1207-1208 (3d Cir. 1988) (holding that merely transmitting a complaint to a recipient's office is insufficient to impose liability on such recipient absent the pleading of participation or direct knowledge); Garrido v. Coughlin, 716 F. Supp. 98, 100 (S.D.N.Y. 1989) (holding that receipt of a letter of protest and a request for an investigation is insufficient to hold defendant Commissioner of Department of Corrections liable). In the instant case, plaintiff has not provided evidence with sufficient particularity of how Donnelly was informed of a problem and failed to remedy the wrong. Accordingly, Donnelly is also entitled to dismissal on the ground that he was not personally involved in the alleged violations of plaintiff's civil rights.
There is nothing in the record indicating anything other than such were deemed "lost" on July 22, 1993.
Plaintiff has not produced sufficient evidence, even when it is believed and all justifiable inferences are drawn in has favor, to indicate that he suffered a deprivation of has constitutional right of access to the courts. Accordingly, it is hereby ORDERED that defendants' motion for summary judgment is granted and that this case shall be closed.