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Roache v. Hogan

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK
Aug 7, 2015
Civil Action No. 9:13-CV-0253 (BKS/DEP) (N.D.N.Y. Aug. 7, 2015)

Opinion

Civil Action No. 9:13-CV-0253 (BKS/DEP)

08-07-2015

WALTER J. ROACHE, Plaintiff, v. MICHAEL HOGAN, et al., Defendants.

APPEARANCES: FOR PLAINTIFF: WALTER J. ROACHE, Pro Se 17129-404 Central New York Psychiatric Center P.O. Box 300 Marcy, NY 13403 FOR DEFENDANT: HON. ERIC T. SCHNEIDERMAN New York State Attorney General The Capitol Albany, NY 12224 OF COUNSEL: ADRIENNE J. KERWIN, ESQ. Assistant Attorney General


APPEARANCES: FOR PLAINTIFF: WALTER J. ROACHE, Pro Se
17129-404
Central New York Psychiatric Center
P.O. Box 300
Marcy, NY 13403
FOR DEFENDANT: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224
OF COUNSEL: ADRIENNE J. KERWIN, ESQ.
Assistant Attorney General
DAVID E. PEEBLES U.S. MAGISTRATE JUDGE

REPORT AND RECOMMENDATION

Pro se plaintiff Walter Roache, a resident of the Central New York Psychiatric Center ("CNYPC"), a facility operated by the New York State Office of Mental Health ("OMH"), has commenced this action against Shelby Ferguson, Jeffrey Nowicki, Michael Hogan, and Donald Sawyer, current and former OMH employees, pursuant to 42 U.S.C. § 1983, alleging that, as a result of being denied access to his legal papers since being placed into the CNYPC, he lost the opportunity to pursue appeals in connection with two legal actions filed by him in state and federal court.

Currently pending before the court is a motion for summary judgment brought by defendants seeking dismissal of plaintiff's claims on various grounds. For the reasons set forth below, I recommend that defendants' motion be granted in part, and otherwise denied. I. BACKGROUND

In light of the procedural posture of the case, the following recitation is derived from the record now before the court, with all inferences drawn and ambiguities resolved in plaintiff's favor. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).

Plaintiff has been civilly confined in the CNYPC, a secure treatment facility operated by the OMH pursuant to New York Mental Hygiene Law § 10.03(o), since on or about April 29, 2010, having been transferred there after being incarcerated at the Fishkill Correctional Facility. Dkt. No. 5 at 2; Dkt. No. 40-1 at 13. Upon plaintiff's arrival at the CNYPC, two unidentified individuals employed at the facility began searching his property, including his four laundry bags filled with papers relating to plaintiff's legal actions, for contraband. Dkt. No. 5 at 2; Dkt. No. 40-1 at 12-13. According to plaintiff, the two unidentified individuals halted the search before finishing and told him the search would be completed at a later date. Dkt. No. 5 at 2; Dkt. No. 40-1 at 13. Approximately one month later, after the search had not been resumed and he had not received any of the legal papers contained in the two bags that had yet to be searched, plaintiff inquired into the matter, and was instructed to "write long-term storage and personal property and tell them what happened." Dkt. No. 40-1 at 13-14, 16; see also Dkt. No. 5 at 2.

At the times relevant to plaintiff's claims, defendant Ferguson was employed as a Secure Care Treatment Aide I ("SCTA I") and the Property Manager of long-term storage at the CNYPC. Dkt. No. 40-2 at 1, 3. Plaintiff claims that he wrote to defendant Ferguson to "explain[] what happened and how [he] had never [been provided the opportunity] to review the other half [of his legal papers]." Dkt. No. 40-1 at 14; see also Dkt. No. 5 at 2. Plaintiff informed defendant Ferguson that, at the time, he had two cases pending that needed his immediate attention, one filed in federal court regarding his good time credits, and a second pending in state court concerning parole. Id. While defendant Ferguson did not respond to plaintiff's requests in writing, he spoke to plaintiff regarding the issue at least two times when he was on plaintiff's gallery. Dkt. No. 5 at 3; Dkt. No. 40-1 at 22. On one occasion, defendant Ferguson explained to plaintiff that he needed to "get rid of [some] papers." Dkt. No. 5 at 3. On the second occasion, after plaintiff had written several letters, defendant Ferguson threatened to never answer plaintiff's requests if he continued to write letters. Dkt. No. 40-1 at 22.

In July 2011, defendant Ferguson was promoted to Secure Care Treatment Aide II ("SCTA II"). Dkt. No. 40-2 at 5.

According to plaintiff, because defendant Ferguson ignored his requests, he began to write to (1) defendant Nowicki, the Chief of the Mental Health Treatment Services for the Sex Offender Treatment Program at the CNYPC; (2) defendant Sawyer, the Executive Director of the CNYPC at the relevant times; and (3) defendant Hogan, the former Commissioner of the OMH, for assistance in gaining access to his legal papers located in long-term storage. Dkt. No. 40-1 at 17-18, 19; see also Dkt. No. 40-3 at 1; Dkt. No. 40-4 at 1; Dkt. No. 40-5 at 1. Although defendant Nowicki responded to plaintiff's letter, the substance of the response is not clear. See Dkt. No. 40-1 (plaintiff testifying vaguely at his deposition that "[defendant Nowicki] said he notified him and he would contact him to do so" without further explanation). Defendant Sawyer wrote plaintiff a letter indicating that he "'concur[red]'" with defendant Nowicki's decisions regarding the matter. Id. at 41-42. Plaintiff does not recall if defendant Hogan ever responded to him. Id. at 44.

Defendant Sawyer left his position at the CNYPC in June 2011. Dkt. No. 40-5 at 1. Defendant Hogan left the OMH in October 2012. Dkt. No. 40-3 at 1.

Attached to defendant Nowicki's declaration submitted in support of defendants' motion for summary judgment are memoranda addressed to plaintiff from defendant Nowicki in response to various letters from plaintiff. Dkt. No. 40-4 at 18, 20, 26, 33, 36, 39, 41, 52, 55. The earliest memorandum, however, is dated November 10, 2010, and responds to a complaint from plaintiff regarding a search of his room by OMH officials. Id. at 18. None of the memoranda respond to complaints from plaintiff regarding access to his property in long-term storage. Dkt. No. 40-4 at 18, 20, 26, 33, 36, 39, 41, 52, 55.

After his efforts to obtain access to his property from OMH officials failed, plaintiff commenced an Article 78 proceeding in Oneida County Supreme Court. Dkt. No. 5 at 3; Dkt. No. 40-1 at 24. According to plaintiff, the proceeding was dismissed because he failed to exhaust the available administrative remedies. Id. Following the dismissal, plaintiff filed a request for "a reargument," which resulted in Supreme Court Justice Bernadette T. Clark ordering an in-person hearing concerning the matter on August 10, 2011. Id. Defendant Nowicki, plaintiff, Attorney Clark, and Jim Williams, a New York State Assistant Attorney General, appeared at the hearing. Dkt. No. 5 at 3; Dkt. No. 40-1 at 27. According to plaintiff, Justice Clark ordered the CNYPC to provide plaintiff an opportunity to review and organize his property in long-term storage. Dkt. No. 40-1 at 25, 146; see also Dkt. No. 5 at 3.

Although the record reflects some indication that plaintiff was granted access to at least some of his belongings in long-term storage with help from his attorney, Stephen Clark, Esq. in April and June 2011, it is not clear whether that occurred prior to the filing of plaintiff's Article 78 petition. Dkt. No. 40-1 at 123, 135-36.

Plaintiff's amended complaint in this action states that the hearing occurred on September 10, 2011. Dkt. No. 5 at 3. This appears to be a mistake because, at his deposition in connection with this matter, plaintiff was asked to read the date appearing on the transcript of the hearing, and he answered, "Oh, yeah. August 10, 2011." Dkt. No. 40-1 at 26.

It does not appear that Justice Clark's directive was memorialized in any written decision or order.

On or about September 6, 2011, plaintiff was summoned to the fifth floor of the CNYPC pursuant to Justice Clark's order, in order to afford him an opportunity to organize his property that was being held in long-term storage. Dkt. No. 40-1 at 28. Aside from plaintiff and Attorney Clark, defendants Ferguson and Nowicki, as well as another individual employed by the OMH, were present. Id. at 32; Dkt. No. 40-4 at 4-5. According to plaintiff, at some point while he was organizing his papers, defendant Ferguson told him that he would not be permitted to take any of his property with him back to his room despite Justice Clark's order. Dkt. No. 40-1 at 33; see also Dkt. No. 5 at 3-4. Defendants Ferguson and Nowicki, however, contend that, after a minute of looking at his belongings, plaintiff "became hostile. . .[,] expressed no interest in sorting his documents or property, [and] turned and walked out of the room." Dkt. No. 40-2 at 4; Dkt. No. 40-4 at 5. Plaintiff alleges that, after defendant Ferguson refused to permit plaintiff to store any of his property in his room, Attorney Clark agreed to file a motion in Oneida County Supreme Court asking Justice Clark to intervene. Dkt. No. 40-1 at 36. According to plaintiff, Justice Clark thereafter rendered another decision again finding that plaintiff had failed to exhaust available administrative remedies. Id. at 37-38.

II. PROCEDURAL HISTORY

Plaintiff commenced this action on March 7, 2013, by the filing of a complaint together with an application to proceed in forma pauperis ("IFP"), accompanied by a request for the appointment of pro bono counsel. Dkt. Nos. 1-3. Although plaintiff's IFP application was granted, Senior District Judge Lawrence E. Kahn denied plaintiff's motion for counsel and dismissed plaintiff's complaint without prejudice to his right to file an amended complaint. Dkt. No. 4. On June 18, 2013, plaintiff submitted an amended complaint, which was accepted for filing by Judge Kahn on November 13, 2013. Dkt. Nos. 5, 7. Plaintiff's amended complaint asserts that his rights under the First, Fifth, Sixth, and Fourteenth Amendments have been violated by defendants' refusal to allow him access to his property, including his legal papers, held in long-term storage at the CNYPC. See generally Dkt. No. 5. As relief, plaintiff seeks monetary damages in the total amount of nine million dollars. Id. at 15.

Following the close of discovery, defendants filed the currently pending motion for summary judgment requesting dismissal of all plaintiff's claims based on (1) the lack of personal involvement of defendants Sawyer and Hogan, (2) the lack of evidence demonstrating a genuine dispute of material fact with respect to whether plaintiff's rights have been violated, and (3) qualified immunity. See generally Dkt. No. 40-7. Defendants' motion, to which plaintiff has responded in opposition, Dkt. No. 44, has been referred to me for the issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).

III. DISCUSSION

A. Legal Standard Governing Motions for Summary Judgment

Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, the entry of summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material facts and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is "material" for purposes of this inquiry, if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248; see also Jeffreys v. City of N.Y., 426 F.3d 549, 553 (2d Cir. 2005). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.

A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue; the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n.4; Sec. Ins. Co., 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material dispute of fact for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250.

When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences, in a light most favorable to the nonmoving party. Anderson, 477 U.S. at 255; Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). The entry of summary judgment is justified only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. Bldg. Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002); see also Anderson, 477 U.S. at 250 (finding summary judgment appropriate only when "there can be but one reasonable conclusion as to the verdict").

B. Personal Involvement

Defendants seek dismissal of all claims asserted against defendants Sawyer and Hogan, arguing that neither of them was personally involved in any of the allegations giving rise to plaintiff's constitutional claims. Dkt. No. 40-7 at 5-8.

"Personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under [section] 1983." Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citing Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991); McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977)). As the Supreme Court has noted, a defendant may only be held accountable for his actions under section 1983. See Iqbal, 556 U.S. at 683 ("[P]etitioners cannot be held liable unless they themselves acted on account of a constitutionally protected characteristic."). To prevail on a section 1983 cause of action against an individual, a plaintiff must show "a tangible connection between the acts of a defendant and the injuries suffered." Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). "To be sufficient before the law, a complaint must state precisely who did what and how such behavior is actionable under law." Hendrickson v. U.S. Attorney Gen., No. 91-CV-8135, 1994 WL 23069, at *3 (S.D.N.Y. Jan. 24, 1994).

As the former Executive Director of the CNYPC and Commissioner of the OMH, respectively, defendants Sawyer and Hogan cannot be liable for damages under section 1983 solely by virtue of being supervisors, "and [liability] cannot rest on respondeat superior." Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003); Wright, 21 F.3d at 501. Instead, to establish responsibility on the part of a supervisory official for a civil rights violation, a plaintiff must demonstrate that the individual (1) directly participated in the challenged conduct; (2) after learning of the violation through a report or appeal, failed to remedy the wrong; (3) created or allowed to continue a policy or custom under which unconstitutional practices occurred; (4) was grossly negligent in managing the subordinates who caused the unlawful event; or (5) failed to act on information indicating that unconstitutional acts were occurring. Iqbal v. Hasty, 490 F.3d 143, 152-53 (2d Cir. 2007), rev'd on other grounds sub nom. Ashcroft v. Iqbal, 556 U.S. 554 (2009); see also Richardson, 347 F.3d at 435; Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); Wright, 21 F.3d at 501.

The evidence before the court with respect to the personal involvement of both defendants Sawyer and Hogan is similar. In his amended complaint, plaintiff contends that he sent letters to those individuals complaining about being unable to access his personal belongings in long-term storage "to no avail." Dkt. No. 5 at 3. At his deposition, plaintiff originally stated that he could not recall if he ever received a response from defendant Hogan regarding his complaints about his property in long-term storage. See Dkt. No. 40-1 at 44. Later in the deposition, however, plaintiff testified as follows:

Q Is there a letter from the Commissioner telling - dealing with the papers that you didn't get originally? Did you ever get anything from the Commissioner about that? About the stuff what you are talking about today?
A Yes.
Q Okay. What did it say?
A Basically, it's up to Nowicki and his staff.
Q Okay. So Sawyer said it's up to Nowicki. Sawyer is the director.
A Everybody says it's up to him
Q Okay. I just wanted to go through them all. Sawyer says, 'I defer to Nowicki?'"
A Right.
Q And then Hogan says it's up to Nowicki?
A Right.
Dkt. No. 40-1 at 56-57.

Although defendant Hogan has no independent recollection of plaintiff or his individualized needs, Dkt. No. 40-3 at 5, the record reflects that defendant Hogan received a letter from the plaintiff and referred the matter to John Culkin, the Director of the Bureau of Sex Offender Evaluation and Treatment at the OMH. Dkt. No. 40-1 at 71. Culkin, in turn, informed plaintiff that, because the CNYPC was already investigating plaintiff's complaints, "it would be inappropriate for the Central Office to become involved in [his] case." Id. Because it is well established that a supervisor cannot be deemed personally involved if he refers the matter to a subordinate for response or investigation, and because there is no additional evidence that demonstrates defendant Hogan's involvement in plaintiff's allegations regarding his property in long-term storage, I recommend the court dismiss the claims asserted against defendant Hogan. Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997); accord, Rivera v. Fischer, 655 F. Supp. 2d 235, 238 (W.D.N.Y. 2009).

With respect to defendant Sawyer, the only evidence implicating him in the allegations that plaintiff was denied access to his property in long-term storage is plaintiff's deposition testimony that, in response to a letter, defendant Sawyer deferred to defendant Nowicki's decisions. See, e.g., Dkt. No. 40-1 at 56-57. Neither the letter from plaintiff to defendant Sawyer nor that from defendant Sawyer to plaintiff is in the record for the court to verify this testimony. While denying any independent recollection of plaintiff's specific requests in his declaration submitted in support of defendants' motion, defendant Sawyer states that, in the ordinary course of business, he would "assign staff to investigate the complaint." Dkt. No. 40-5 at 3, 5. In addition, although defendant Sawyer explains that plaintiff's attorney wrote to him in January 2011, regarding a search of plaintiff's room, that incident is not related to plaintiff's allegations that he has been denied access to his belongings in long-term storage. Id. at 4. Based on the evidence before the court, I find that a genuine dispute of material fact exists as to whether defendant Sawyer received plaintiff's letter and independently investigated his complaints before responding. Although it certainly seems plausible that, like defendant Hogan, defendant Sawyer may have referred the matter to a subordinate for investigation, the absence of any independent evidence to verify defendant Sawyer's suspicion that he did, in fact, refer it is enough to raise a genuine dispute of material fact. Plaintiff consistently testified at his deposition that defendant Sawyer responded to his letter and deferred to defendant Nowicki's decisions. Dkt. No. 40-1 at 41, 56-57. Defendant Sawyer, on the other hand, has only provided evidence suggesting that, notwithstanding his failure to independently recall plaintiff's individualized needs, he would have referred the matter to a subordinate in the ordinary course of business. Dkt. No. 40-5 at 3, 5. Based on the evidence, I find that a reasonable factfinder could conclude, if plaintiff's testimony is credited, that defendant Sawyer learned about plaintiff's alleged constitutional violations and failed to remedy them by simply deferring to defendant Nowicki's decisions. Accordingly, I recommend the defendants' motion be denied to the extent it seeks dismissal of plaintiff's claims against defendant Sawyer based on lack of personal involvement.

C. Plaintiff's Access to Courts Claim

Plaintiff characterizes this claim in his complaint in various ways, including describing defendants conduct as violating the First, Fifth, Sixth, and Fourteenth Amendments. See generally Dkt. No. 5. Although it could be construed as a substantive due process claim brought under the Fourteenth Amendment, the Supreme Court has instructed that, "where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing [the] claims." Cnty. of Sacramento v. Lewis, 523 U.S. 833, 842 (1998) (quotation marks omitted); Butler v. Hogue, No. 08-CV-0264, 2010 WL 4025886, at *2 (N.D.N.Y. Oct. 13, 2010) (Sharpe, J.). Thus, plaintiff's causes of action related to his allegations of the denial of access to his legal papers should be analyzed under the First Amendment, applicable through the Fourteenth Amendment, rather than as asserting a substantive due process cause of action.

Defendants also seek dismissal of plaintiff's First Amendment denial of access to the courts claim based on their contention that no reasonable factfinder could conclude that (1) plaintiff suffered any prejudice as a result of defendants' actions, or (2) defendants acted deliberately and maliciously. Dkt. No. 40-7 at 9-13.

Undeniably, prisoners have a constitutional right to meaningfully access the courts. Bounds v. Smith, 430 U.S. 817, 824 (1977); accord, Lewis v. Casey, 518 U.S. 343, 350 (1996) ("The right that Bounds acknowledged was the (already well-established) right of access to the courts." (emphasis in original)). This right is implicated when prison officials "actively interfer[e] with inmates' attempts to prepare legal documents, or file them[.]" Lewis, 518 U.S. at 350 (citations omitted). A plaintiff asserting a denial of access to courts claim must allege that the defendant was "responsible for actions that hindered his efforts to pursue a legal claim." Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003) (quotation marks omitted). To establish a denial of access to courts claim, a plaintiff must satisfy two prongs. First, a plaintiff must show that the defendant acted deliberately and maliciously. Davis, 320 F.3d at 351. Second, a plaintiff must demonstrate that he suffered an actual injury. Id.

1. Actual Injury

Plaintiff contends that he was prejudiced by defendants' refusal to allow him access to his legal papers in long-term storage since he arrived at the CNYPC in April 2010, because he was precluded from filing an appeal in two particular cases, both of which plaintiff was unable to identify except to describe the first as a federal court case filed in this district, related to good time credits, and the second as a state court case concerning parole. Dkt. No. 5 at 1, 5; Dkt. No. 40-1 at 14-15, 33-34, 61-62. Plaintiff contends that, because he was denied access to his papers, he cannot provide the case numbers or any other identifying information for these actions. Dkt. No. 5 at 9.

According to the Federal Judiciary's Public Access to Court Electronic Records ("PACER") system, aside from this pending lawsuit, plaintiff has filed three actions in the Northern District of New York, including (1) Roache v. Schneiderman ("Roache I"), No. 12-CV-1034 (N.D.N.Y. filed June 26, 2012); (2) Roache v. Connell ("Roache II"), No. 09-CV-1302 (N.D.N.Y. filed Nov. 20, 2009); and (3) Roache v. Connell ("Roache III"), No. 06-CV-0200 (N.D.N.Y. filed Feb. 15, 2006). Because Roache I was commenced by plaintiff after his transfer into the CNYPC and judgment was entered closing Roache III in 2006, years before his arrival at the CNYPC, those actions cannot be the ones to which plaintiff refers when he contends, in this case, that he was denied access to his legal papers concerning good time credits. In addition, Roache I was a civil rights action asserting a due process claim based on an allegation that plaintiff was unlawfully detained in the CNYPC, and did not involve good time credits. See generally Roache I, No. 12-CV-1034, Dkt. No. 1. In the same vein, plaintiff filed a petition for writ of habeas corpus in Roache III that sought review of state court decisions and did not concern good time credits. See generally Roache III, No. 06-CV-0200, Dkt. No. 7. Plaintiff's petition for writ of habeas corpus in Roache II, however, does contain allegations regarding good time credits, and the case was pending at the time plaintiff was transferred into the CNYPC. See generally Roache II, No. 09-CV-1302. Accordingly, for purposes of this action, I have assumed that plaintiff is referring to Roache II when he contends he was denied access to his legal papers concerning a federal court case filed in this district involving good time credits.

At his deposition in connection with this matter, plaintiff testified that he believed he commenced the federal court case to which he refers "in 2007 or something like that." Dkt. No. 40-1 at 15. According to PACER, however, plaintiff did not commence any action in this district in 2007.

Turning now to whether plaintiff suffered an actual injury from the alleged denial of access to his papers in connection with Roache II, plaintiff contends that the lack of access precluded him from appealing the dismissal of his petition. See, e.g., Dkt. No. 5 at 10; Dkt. No. 40-1 at 15. On February 22, 2012, Senior District Judge Frederick J. Scullin, Jr., issued a decision and order dismissing plaintiff's petition in Roache II based on multiple grounds, including that plaintiff asserted claims that are not cognizable on federal habeas review. Roache II, No. 09-CV-1302, Dkt. No. 28. Plaintiff does not allege, and there is no indication from the docket sheet in Roache II, that he did not receive this decision and order. To appeal the order, plaintiff would have been required to file a motion with the Court of Appeals for the Second Circuit requesting the issuance of a certificate of appealability ("COA") since Judge Scullin did not issue one, finding that plaintiff had "failed to make a substantial showing of the denial of a constitutional right as 28 U.S.C. § 2253(c)(2) requires[.]" Dkt. No. 28 at 14 (quotation marks omitted). Pursuant to 28 U.S.C. § 2253, "[u]nless a circuit justice or judge issues a [COA], an appeal may not be taken to the court of appeals from . . . the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court[.]" 28 U.S.C. § 2253(c)(1)(A). The Second Circuit requires any motion for a COA to include the following materials:

(1) the Court's Form T-1080 Motion Information Statement, (2) a copy of the district judge's decision denying the COA, and (3) a statement that (a) identifies each issue to be raised on appeal and the relevant facts and (b) makes a substantial showing of the denial of a constitutional right as to each issue.
HOW TO FILE HABEAS CORPUS PETITIONS OR APPEALS, http://www.ca2.uscourts.gov/clerk/case_filing/appealing_a_case/pdf/How%20to%20File%20a%20Prisoner%20Habeas%20Appeal.pdf (last visited July 29, 2015). Assuming it is true that, as plaintiff alleges, he was not granted access to his legal papers regarding Roache II after arriving at the CNYPC in April 2010, a reasonable factfinder could conclude that plaintiff would have been unable to "make[] a substantial showing of the denial of a constitutional right" without access to those papers. Depending on the issues raised in plaintiff's motion for COA, it seems likely he would need to refer to his legal papers in connection with the action. For this reason, I find the record before the court gives rise to a genuine dispute of material fact as to whether plaintiff suffered an actual injury with respect to defendants' alleged decision to deny plaintiff access to his legal papers in long-term storage concerning the federal court case to which plaintiff refers.

It is worth noting that the docket sheet in Roache II reflects that plaintiff was able to, and did, contact the court on two occasions between the time that he was transferred into the CNYPC and when Judge Scullin dismissed his petition. Roache II, No. 09-CV-1302, Dkt. Nos. 24, 26. In a letter dated September 27, 2010, plaintiff requested a status update regarding the action and identified the matter with the correct case number. Roache II, No. 09-CV-1302, Dkt. No. 24 at 1. On or about July 1, 2011, plaintiff again wrote a letter to the court requesting he be released "on his own recognizance or on reasonable bail." Roache II, No. 09-CV-1302, Dkt. No. 26. These letters rebut plaintiff's allegation that he did not have the case numbers for any of the actions to which his legal papers in long-term storage relate. The letters do not, however, provide any meaningful evidence that plaintiff was not denied access to the legal papers. In this regard, the letters merely reflect that plaintiff could access the court with respect to Roache II, not that defendants did not deny him access to his legal papers in connection with the action. Nevertheless, it is curious that plaintiff did not complain to the court in either of the letters about being denied access to his legal papers. It is also noteworthy that plaintiff also failed to claim that he was denied access to his legal papers in his notice of appeal to the Second Circuit of Judge Scullin's decision dismissing the habeas petition in Roache II, which plaintiff filed on July 15, 2015. Roache II, No. 09-CV-1302, Dkt. No. 30. While the absence of any complaint in these filings raises a suspicion regarding the plausibility of plaintiff's allegations, it does not necessarily disprove them.

As it relates to plaintiff's contention that he could not appeal one of his cases filed in state court regarding parole, defendants have provided a list of all of plaintiff's cases filed in New York State and argue that "there is no admissible evidence that any deadline to file a notice of appeal or perfect an appeal was missed because the plaintiff could not access documents." Dkt. No. 40-7 at 10-11; Dkt. No. 40-1 at 185-200. This contention, however, ignores plaintiff's allegations contained both in his verified complaint and his deposition testimony - both of which constitute admissible evidence - that he was unable to file an appeal in connection with a state court case concerning parole. Dkt. No. 5 at 5, 9, 13, 14; Dkt. No. 40-1 at 15, 62-63. Defendants have offered only a list of plaintiff's state cases, without any accompanying context, docket sheets, or proof that would demonstrate that plaintiff's lack of access to his legal papers did not cause him to miss an opportunity to file an appeal. Accordingly, because there is nothing in the record that disputes plaintiff's testimony concerning whether he was precluded from filing an appeal, I find that a genuine dispute of material fact exists as to whether plaintiff suffered an actual injury by defendants' alleged failure to allow plaintiff access to his legal papers.

2. Deliberate and Malicious Intent

To succeed on his court access claim, plaintiff must also show, in addition to actual injury, that defendants acted deliberately and maliciously in denying him access. See, e.g., Dawes v. VanBenschoten, 21 F. App'x 29, 31 (2d Cir. 2001) (citing Morello v. James, 810 F.2d 344, 347 (2d Cir. 1987)). This inquiry turns on whether the defendant under consideration "intended to hinder a plaintiff's ability to obtain a remedy in a court of law." Rodriguez v. Diaz, No. 05-CV-1831, 2011 WL 3427147, at *3 (S.D.N.Y. Aug. 3, 2011); see also Davis, 320 F.3d at 351 ("To state a claim for denial of access to the courts. . .a plaintiff must allege that the defendant took or was responsible for actions that hindered a plaintiff's efforts to pursue a legal claim."); Washington v. James, 782 F.2d 1134, 1139 (2d Cir. 1989) (finding the pro se plaintiff's complaint stated a claim for denial of access to the courts where the complaint could "reasonably be read to allege that state prison officials intentionally violated [the plaintiff's] right of reasonable access to the courts"). Because I have recommended dismissal of plaintiff's claims against defendant Hogan based on lack of personal involvement, I have analyzed this element of plaintiff's denial of access to the courts claim only as against defendants Sawyer, Nowicki, and Ferguson.

i. Defendant Sawyer

The only evidence regarding defendant Sawyer's involvement in allegedly denying plaintiff access to the courts is plaintiff's testimony that, in response to a letter from plaintiff complaining of being denied access to his property in long-term storage, defendant Sawyer deferred to defendant Nowicki's decisions. See, e.g., Dkt. No. 40-1 at 56-57. Neither the letter from plaintiff to defendant Sawyer nor that from defendant Sawyer to plaintiff is in the record and available to corroborate this testimony. Even assuming he failed to remedy plaintiff's complaints, and was thus personally involved, there is no record evidence upon which a reasonable factfinder could conclude that defendant Sawyer acted deliberately and maliciously. Accordingly, I recommend plaintiff's access to the courts claim asserted against defendant Sawyer be dismissed on this basis.

ii. Defendant Nowicki

The record is similarly devoid of any evidence from which a reasonable factfinder could conclude that defendant Nowicki acted deliberately and maliciously. The record reflects that defendant Nowicki responded to plaintiff's letters, in which he complained of being denied access to his property in long-term storage, and informed plaintiff he would contact defendant Ferguson in an attempt to remedy the situation. Dkt. No. 40-1 at 19. In addition, defendant Nowicki was present at the hearing before Justice Clark concerning plaintiff's Article 78 petition and seemingly cooperated with the judge and plaintiff's own attorney in accommodating plaintiff's requests. Id. at 123. According to plaintiff's own testimony, while he was examining his legal papers held in long-term storage on September 6, 2011, defendant Nowicki appeared and asked whether "'everything was going all right.'" Id. at 32. In light of this evidence, and the lack of any evidence to suggest defendant Nowicki intentionally denied plaintiff access to his legal papers, no reasonable factfinder could conclude that defendant Nowicki acted deliberately and maliciously in denying plaintiff access to the courts. Accordingly, I recommend that this claim be dismissed as against defendant Nowicki.

iii. Defendant Ferguson

Plaintiff alleges defendant Ferguson denied him access to his legal papers by continuously refusing to retrieve plaintiff's papers from long-term storage and denying plaintiff permission to store any of his legal documents, apparently in violation of Justice Clark's order. Dkt. No. 5 at 7, 9; Dkt. No. 40-1 at 33. At his deposition, plaintiff testified that, when he made an inquiry to defendant Ferguson regarding his long-term storage requests, defendant Ferguson responded, "'If you keep writing, I am never going to answer you.'" Dkt. No. 40-1 at 22. Defendant Ferguson also allegedly told plaintiff that he "didn't care what [Justice Clark] said" and denied plaintiff permission to hold onto any of his papers in long-term storage. Dkt. No. 5 at 4; Dkt. No. 40-1 at 33.

Defendant Ferguson, on the other hand, contends that he "retrieved the item/items [in long-term storage requested by plaintiff] to the best of his abilities" when plaintiff submitted requests. Dkt. No. 40-2 at 4. He and defendant Nowicki also maintain that, contrary to plaintiff's allegation that defendant Ferguson ignored Justice Clark's order on September 6, 2011, plaintiff became hostile and "expressed no interest in sorting his documents or property, turned and walked out of the room." Id. In viewing the foregoing evidence in the light most favorable to plaintiff, I find that a reasonable factfinder could infer, if plaintiff's testimony is credited, that defendant Ferguson deliberately and maliciously interfered with his access to the courts by denying him access to his legal papers in long-term storage.

In summary, although there exists a genuine dispute of material fact with respect to whether plaintiff suffered an actual injury in connection with his alleged lack of access to his legal papers, a reasonable factfinder could conclude that only defendant Ferguson denied plaintiff access to this property with the requisite intent.

Defendants implicitly contend that plaintiff was denied access to his property in long-term storage, including his legal papers, because allowing him to do so would violate CNYPC rules regarding the limits on storing personal property in his room. Dkt. No. 40-7 at 11. There is no record evidence to support this conclusion. While defendants Ferguson and Nowicki explain the CNYPC rule regarding the limitations on personal property storage in their declarations submitted in support of the pending motion, they fail to provide necessary context by adducing evidence that plaintiff violated this rule at any time or that plaintiff was denied access to his property because doing so would create a violation of the rule. See Dkt. No. 40-2 at 2-3; Dkt. No. 40-4 at 2-3. Accordingly, to the extent defendants seek to evade liability on plaintiff's access to the courts claim on the basis that they were enforcing a policy reasonably related to legitimate penological interests, Arce v. Walker, 58 F. Supp. 2d 39, 44 (W.D.N.Y. 1999), I find there is no evidence to support a conclusion that plaintiff violated any CNYPC policy.

D. Plaintiff's Retaliation Claim

In their motion, defendants also seek dismissal of plaintiff's retaliation claim asserted against all of them based on plaintiff's failure to "identify any alleged reason why [they] would do so." Dkt. No. 40-7 at 13.

A cognizable section 1983 retaliation claim lies when prison officials take adverse action against an inmate that is motivated by the inmate's exercise of a constitutional right, including the free speech provisions of the First Amendment. See Friedl v. City of N.Y., 210 F.3d 79, 85 (2d Cir. 2000) ("In general, a section 1983 claim will lie where the government takes negative action against an individual because of his exercise of rights guaranteed by the Constitution or federal laws."). The Second Circuit has cautioned, however, that, because of "the ease with which claims of retaliation may be fabricated, courts should "examine prisoners' claims of retaliation with skepticism and particular care." Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995); accord, Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2013).

To establish a claim under section 1983 for unlawful retaliation, a plaintiff must prove that (1) he engaged in protected conduct, (2) the defendants took adverse action against him, and (3) there was a causal connection between the protected activity and the adverse action - in other words, that the protected conduct was a "substantial or motivating factor" in the prison officials' decision to take action against the plaintiff. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Dillon v. Morano, 497 F.3d 247, 251 (2d Cir. 2007); Garrett v. Reynolds, No. 99-CV-2065, 2003 WL 22299359, at *4 (N.D.N.Y. Oct. 3, 2003) (Sharpe, M.J.). "[P]rison officials' conduct constitutes an 'adverse action' when it 'would deter a similar situated individual or ordinary firmness from exercising his or her constitutional rights.'" Alicea v. Howell, 387 F. Supp. 2d 227, 237 (W.D.N.Y. 2005) (quoting Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001)).

In this case, liberally construed, plaintiff's complaint asserts a retaliation claim against the defendants based on an allegation that they precluded him access to his legal papers in long-term storage in retaliation for his filing the Article 78 proceeding. Dkt. No. 5 at 3-4, 14. The filing of an Article 78 proceeding is a protected activity under the First Amendment, see, e.g., Cabassa v. Gummerson, No. 01-CV-1039, 2008 WL 4416411, at *22 (N.D.N.Y. Sept. 24, 2008) (Hurd, J., adopting report and recommendation by Lowe, M.J.), and depriving an inmate access to legal papers may constitute adverse action, see, e.g., Smith v. City of N.Y., No. 03-CV-7576, 2005 WL 1026551, at *3 (S.D.N.Y. May 3, 2005). Thus, the question in this case is whether there is sufficient record evidence from which a reasonable factfinder could conclude that there is a causal connection between plaintiff's filing of the Article 78 petition and defendants' alleged denial of access to his legal papers.

1. Defendant Ferguson

With respect to defendant Ferguson, there is evidence that, in denying plaintiff permission to store any legal papers from long-term storage in his room on September 6, 2011, defendant Ferguson told plaintiff he "did not care who said what" and that "he didn't care what [Justice Clark] said, he was doing what he wants, and that [plaintiff] wasn't getting nothing [sic]." Dkt. No. 5 at 4. Assuming these allegations are true, a reasonable factfinder could infer that defendant Ferguson was motivated by plaintiff's Article 78 petition in denying plaintiff permission to store his property. Although defendant Ferguson did not explicitly credit plaintiff's Article 78 proceeding for his decision to deny plaintiff permission, when these statements are considered in conjunction with the evidence demonstrating that, in April and August 2010, approximately a year prior to the Article 78 hearing before Justice Clark in August 2011, he was granted at least some access to his property in long-term storage, Dkt. No. 40-1 at 121; Dkt. No. 40-2 at 4, a factfinder could conclude that it was the Article 78 proceeding that motivated defendant Ferguson to deny plaintiff permission to store his property in his room on September 6, 2011. Said differently, the record demonstrates that, while defendant Ferguson may have denied plaintiff access to his property in long-term storage for a certain period of time after plaintiff was transferred into the CNYPC, Dkt. No. 5 at 7, 9, 10; Dkt. No. 40-1 at 16-17, there is also evidence that defendant Ferguson, as the property manager for the CNYPC, granted plaintiff's requests for access before the Article 78 hearing. See e.g., Dkt. No. 40-1 at 121; Dkt. No. 40-2 at 4. Defendant Ferguson's statements on September 6, 2011, which reference the hearing, could give rise to an inference that, on that date, he intended to retaliate against plaintiff for obtaining a favorable ruling from Justice Clark. In addition, when defendant Ferguson's statements from September 6, 2011, are considered in conjunction with plaintiff's allegation that he had earlier told plaintiff that he would never respond if plaintiff continued to write letters requesting access to his long-term storage, it seems reasonable that a factfinder may conclude that defendant Ferguson developed a pattern of retaliatory conduct with respect to plaintiff and his requests for access to his property in long-term storage. For these reasons, I recommend the court deny defendants' motion with respect to plaintiff's retaliation claim asserted against defendant Ferguson.

Although plaintiff testified at his deposition that defendant Ferguson warned him that, if he continued to write letters, defendant Ferguson would not respond, I do not construe this as asserting a retaliation claim based on defendant Ferguson's alleged refusal to answer plaintiff's letters or provide plaintiff with access to his property in long-term storage out of retaliation for plaintiff writing his letter requests. Plaintiff's complaint does not contain allegations to this effect, and the primary focus of plaintiff's complaint, deposition testimony, and opposition to the pending motion is on his denial of court access claim.

2. Defendant Nowicki

Turning to defendant Nowicki, plaintiff alleges in his complaint that, after the Article 78 hearing, defendant Nowicki "allowed [defendant] Ferguson to continue with [his] abuse of authority and commit contempt of court[.]" Dkt. No. 5 at 14. Additionally, when asked if he wrote to defendant Nowicki after September 6, 2011, at which time defendant Ferguson refused to allow plaintiff to store some of his property in his room, plaintiff responded that he wrote to defendant Nowicki "off and on throughout the months" because more papers were subsequently confiscated after that date. Dkt. No. 40-1 at 46. Plaintiff also testified that he wrote letters to "everybody" after he was denied his legal papers on September 6, 2011. Id. at 44, 46. Even assuming all of this is true, however, it does not give rise to a genuine dispute of material fact with respect to whether defendant Nowicki's actions were motivated by retaliatory intent for plaintiff filing an Article 78 petition. Plaintiff's vague allegation that he wrote "everybody" after September 6, 2011, apparently with no satisfactory response, fails to demonstrate that defendant Nowicki retaliated against plaintiff for engaging in any protected activity. Instead, the evidence demonstrates that defendant Nowicki was cooperative during and after the Article 78 proceeding, answering Justice Clark's questions, scheduling the meeting on September 6, 2011, for plaintiff to organize his legal papers pursuant Justice Clark's order, and checking-in during the meeting to be sure "'everything [was] going all right.'" Dkt. No. 40-1 at 32, 137, 146, 154; Dkt. No. 40-4 at 69.

In his complaint and during his deposition in connection with this matter, plaintiff consistently characterized defendant Ferguson's refusal to give him his legal papers after the Article 78 hearing as "contempt of court." Dkt. No. 5 at 12; Dkt. No. 40-1 at 37.

Even construing the evidence in the light most favorable to plaintiff, no reasonable factfinder could conclude that defendant Nowicki retaliated against plaintiff for filing an Article 78 petition. Accordingly, I recommend the court dismiss plaintiff's retaliation claim asserted against defendant Nowicki.

3. Defendants Hogan and Sawyer

As for defendants Hogan and Sawyer, there is no record evidence from which a reasonable factfinder could conclude that either of these defendants took adverse action against plaintiff in retaliation for plaintiff filing an Article 78 petition. With respect to defendant Sawyer, there is no evidence that he was aware of the Article 78 proceeding. As to defendant Hogan, while plaintiff alleges in his complaint that defendant Hogan became aware of the Article 78 proceeding through defendant Nowicki, these are conclusory and insufficient to support a finding that defendant Hogan's conduct was motivated by plaintiff's protected activity. Dkt. No. 5 at 14. Even assuming, however, that defendant Hogan learned of the Article 78 proceeding, the only evidence regarding the alleged adverse action by defendant Hogan is plaintiff's allegation that, after the incident with defendant Ferguson on September 6, 2011, he wrote "everybody" - without alleging or otherwise providing any proof that (1) "everybody" included defendant Hogan, (2) defendant Hogan failed to respond to plaintiff's satisfaction, or (3) assuming defendant Hogan failed to respond to plaintiff's satisfaction, he did so with retaliatory animus for the Article 78 proceeding. Accordingly, in light of the absence of any evidence from which a reasonable factfinder could conclude that either defendant Sawyer or defendant Hogan retaliated against plaintiff for filing an Article 78 proceeding, I recommend the court grant defendants' motion with respect to plaintiff's retaliation claim asserted against these individuals.

E. Plaintiff's Sixth Amendment Claim

To the extent plaintiff asserts a Sixth Amendment claim based on his allegation that defendant Ferguson violated the attorney-client privilege by remaining present for plaintiff's review of his property on September 6, 2011, I recommend it be dismissed. The Sixth Amendment "only protect[s] the attorney-client relationship from intrusion in the criminal setting[.]" Wolff v. McDonnell, 418 U.S. 539, 576 (1974). Because plaintiff's allegations regarding defendant Ferguson's conduct do not arise in the context of a criminal proceeding, plaintiff has failed to assert a cognizable constitutional right.

F. Qualified Immunity

Defendants contend that they are all entitled to qualified immunity because "it was objectively reasonable for [them] to believe that they were not violating plaintiff's constitutional rights." Dkt. No. 40-7 at 15. Because I have recommended the dismissal of all claims against defendants Nowicki, Hogan, and Sawyer, I will proceed with analyzing defendants' qualified immunity argument with respect to only plaintiff's court access claim and retaliation claims against defendant Ferguson.

"Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct." Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012); see also Pearson v. Callahan, 555 U.S. 223, 231 (2009); Sudler v. City of N.Y., 689 F.3d 159, 174 (2d Cir. 2012). The law of qualified immunity seeks to strike a balance between "the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson, 555 U.S. at 231. Government officials are shielded from liability by qualified immunity when making "reasonable mistakes" concerning the lawfulness of their conduct. Sudler, 689 F.3d at 174 (citing Saucier v. Katz, 533 U.S. 194, 206 (2001), abrogated on other grounds by Pearson, 555 U.S. 223)).

Because qualified immunity is "an immunity from suit rather than a mere defense to liability," Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), the Supreme Court has "repeatedly . . . stressed the importance of resolving immunity questions at the earliest possible stage in the litigation," Pearson, 555 U.S. at 231 (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam)).

The determination of whether a government official is immune from suit is informed by two factors. Doninger v. Niehoff, 642 F.3d 334, 345 (2d Cir. 2011). Specifically, the inquiry turns on whether the facts alleged, taken in a light most favorable to the plaintiff, show that the conduct at issue violated a statutory or constitutional right, and if so, whether that right "was clearly established at the time of the challenged conduct." Terebesi v. Torreso, 764 F.3d 217, 230 (2d Cir. 2014) (citing Reichle, 132 S. Ct. at 2093). The Supreme Court has said that an officer's "conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (quotation marks and alterations omitted). "To this end, a plaintiff need not show a case 'directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.'" Terebesi, 764 F.3d at 230 (quoting al-Kidd, 131 S. Ct. at 2083). However, '[e]ven where the law is 'clearly established' and the scope of an official's permissible conduct is 'clearly defined,' the qualified immunity defense also protects an official if it was 'objectively reasonable' for him at the time of the challenged action to believe his acts were lawful." Higazy v. Templeton, 505 F.3d 161, 169-70 (2d Cir. 2007) (citations omitted). This "objective reasonableness" part of the test is satisfied if "officers of reasonable competence could disagree on [the legality of the defendant's actions]." Malley v. Briggs, 475 U.S. 335, 341 (1986).

In this instance, plaintiff's rights to access the courts and to be free from retaliation for engaging in a protected activity were firmly established at the time defendant Ferguson allegedly violated those rights, and defendants do not contest this point. Instead, defendants argue that, even assuming defendant Ferguson did violate plaintiff's rights, he lacked the requisite knowledge, "constructive or actual, that [his] conduct violated plaintiff's constitutional rights." Dkt. No. 40-7 at 15. This contention, however, is not borne out in the record. The record exposes genuine disputes of material fact with respect to whether defendant Ferguson denied plaintiff access to his legal papers with the requisite deliberate and malicious intent and whether he did so with retaliatory animus for plaintiff filing an Article 78 petition in state court. In his declaration submitted in support of the pending motion, defendant Ferguson states that he "retrieved the item/items [requested by plaintiff]" on different occasions, and that he was present on two occasions while plaintiff went through and sorted some of his property held in long-term storage. Dkt. No. 40-2 at 4. This evidence, however, fails to resolve the disputes of material fact regarding plaintiff's access to courts and retaliation claims, and, accordingly, precludes a finding of qualified immunity at this juncture. Assuming a reasonable factfinder credits plaintiff's allegations regarding defendant Ferguson's conduct, no reasonable person in defendant Ferguson's position would believe that he was not violating plaintiff's rights. Moreover, as was noted above, to the extent defendants seek to rely on a CNYPC policy regarding the amount of personal property a resident may store in his room as justification for their conduct, there is no evidence in this matter that plaintiff violated this rule or that he would have violated this rule had defendant Ferguson permitted him to access his legal paper in long-term storage, as requested on numerous occasions by plaintiff. Accordingly, I recommend the court deny defendants' motion to the extent it seeks a finding of qualified immunity.

IV. SUMMARY AND RECOMMENDATION

Although no reasonable factfinder could conclude that defendants Nowicki, Sawyer, and Hogan violated plaintiff's rights to access the courts or to be free from adverse action in retaliation for engaging in protected activity, the record now before the court contains genuine disputes of material fact regarding whether defendant Ferguson deliberately and maliciously denied plaintiff access to his legal papers in long-term storage and whether he did so out of retaliation for plaintiff's filing of an Article 78 petition in state court. Accordingly, it is hereby respectfully

RECOMMENDED that defendants' motion for summary judgment (Dkt. No. 40) be GRANTED in part and DENIED in part, as follows:

(1) All of plaintiff's claims asserted against defendants Nowicki, Sawyer, and Hogan be DISMISSED; and

(2) Plaintiff's denial of access to the courts and retaliation claims asserted against defendant Ferguson survive defendants' motion and be set down for trial.

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).

It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules. Dated: August 7, 2015

Syracuse, New York

/s/_________

David E. Peebles

U.S. Magistrate Judge


Summaries of

Roache v. Hogan

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK
Aug 7, 2015
Civil Action No. 9:13-CV-0253 (BKS/DEP) (N.D.N.Y. Aug. 7, 2015)
Case details for

Roache v. Hogan

Case Details

Full title:WALTER J. ROACHE, Plaintiff, v. MICHAEL HOGAN, et al., Defendants.

Court:UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

Date published: Aug 7, 2015

Citations

Civil Action No. 9:13-CV-0253 (BKS/DEP) (N.D.N.Y. Aug. 7, 2015)