Morgan v. Parmiter et al, No. 9:2022cv00147 - Document 4 (N.D.N.Y 2022)

Court Description: DECISION AND ORDER: ORDERED that if Plaintiff wishes to proceed with this action, he must file an Amended Complaint as set forth above within thirty (30) days from the date of the filing of this Decision and Order. ORDERED that, if Plaintiff timel y files an Amended Complaint, this matter be returned to the Court for further review. ORDERED that if Plaintiff fails to timely file an Amended Complaint as directed, the Clerk shall enter judgment indicating that this action is DISMISSED withou t prejudice without further order of this Court pursuant to 28 U.S.C. § 1915(A) for failure to state a claim upon which relief may be granted and for failure to comply with this Decision and Order. In that event, the Clerk is directed to close t his case. ORDERED that the Clerk of the Court shall provide Plaintiff with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebronv. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam). ORDERED th at the Clerk serve a copy of this Decision and Order on Plaintiff, together with a copy of the Complaint. Signed by Judge Brenda K. Sannes on March 28, 2022. (Attachments: # 1 case law cited, # 2 case law cited, # 3 case law cited, # 4 case law cited, # 5 case law cited, # 6 case law cited) ( Notice of Compliance Deadline 4/29/2022, Case Review Deadline 5/31/2022){order and copy of complaint served via regular mail on plaintiff}(nas )

Download PDF

Morgan v. Parmiter et al Doc. 4 Att. 6 Cancel v. Goord, Not Reported in F.Supp.2d (2001) KeyCite Yellow Flag - Negative Treatment Distinguished by Collins v. Artus, N.D.N.Y., March 9, 2009 2001 WL 303713 Only the Westlaw citation is currently available. United States District Court, S.D. New York. Frankie CANCEL and Melvin Owens, Plaintiffs, v. Glenn S. GOORD, Commissioner of New York State Department of Correctional Services, et al. Defendants. No. 00 CIV 2042 LMM. | March 29, 2001. MEMORANDUM AND ORDER MCKENNA, J. *1 Frankie Cancel and Melvin Owens (collectively “Plaintiffs”), inmates at Fishkill Correctional Facility (“Fishkill”), bring this pro se civil rights action pursuant to 42 U.S.C. § 1983 against Defendants Glenn S. Goord, Commissioner of the New York State Department of Correctional Services (“DOCS”); Anthony Annucci, Deputy Commissioner of DOCS; Jennifer Jones, Staff Attorney at DOCS; William Mazzuca, Fishkill Superintendent; Robert Ercole, Fishkill Deputy Superintendent; Robert Erbert, Fishkill Deputy Superintendent, Administration; Ada Perez, Fishkill Deputy Superintendent, Programs; Stephan Lowry, Fishkill Captain; Lewis Goidel, Fishkill Inmate Grievance Program (“I.G.P.”) Supervisor; Christine O'Dell, Fishkill Senior Mail Clerk; Sandie Breen, Fishkill Mail Clerk; and John/Jane Doe[s], unknown Members of the Fishkill Mail Room Staff (collectively “Defendants”) for unconstitutionally implementing the inmate grievance program and for deliberately tampering and interfering with their regular and legal mail. The Plaintiffs seek injunctive relief as well as compensatory and punitive damages from each Defendant individually and in their official capacities. The Defendants filed a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons set forth below the Defendants' motion is granted in part and denied in part. 1 Statement of Facts 2 On Friday August 28, 1998 Plaintiff Cancel received a piece of legal mail marked as such from the Criminal Term Clerk's Office of the Supreme Court in the State of New York which had been opened outside his presence. (Am.Compl.¶ 22.) The letter had been opened by Defendants O'Dell, Breen, and unknown members of Fishkill mail room staff even though it was clearly marked as privileged legal mail. (Id. ¶¶ 22–24.) On August 31, 1998 Cancel filed a grievance with the Fishkill I.G .P. Supervisor, Defendant Goidel, regarding the August 28 legal mail incident. (Id. ¶¶ 25–26.) Goidel failed to process Cancel's grievance. (Id.) Subsequently, on October 5, 1998 Cancel filed a second grievance, this time against Goidel for refusing to process Cancel's original grievance. (Id. ¶¶ 27–28.) This second grievance was not processed. (Id.) On October 19, 1998 Cancel wrote a letter to the I.G.P. Director informing him of Goidel's refusal to process the two grievances. (Id.) Subsequently, on November 2, 1998 both grievances were processed (Id. ¶ 29) and on November 19, 1998 Cancel received a grievance decision by Defendant O'Dell who wrote that “such mistakes should not occur in the future.” (Id. ¶ 36.) Despite this statement both Cancel's legal mail and regular mail were continually interfered with. (Id. ¶ 37.) On December 4, 1998 Cancel put together a complaint pursuant to New York State Civil Service Law § 75 seeking a hearing, disciplinary action and the removal of Goidel for his improper actions and unlawful manner of running the I.G.P. 3 (Id. ¶ 33.) On December 9, 1998 the complaint was mailed to Defendants Goord and Goidel. (Id. ¶¶ 33–35.) The complaint was ignored by both of these Defendants. (Id.) On December 14, 1998 Cancel sent a letter with a copy of the complaint to Defendant Annucci who also did not respond. (Id. at 35.) *2 On June 28, 1999 Cancel filed another grievance stating that both his regular and legal mail were being withheld. (Id. ¶ 38.) Subsequent to the filing of this grievance, but on the same day, Cancel received sixteen pieces of regular mail that had been withheld for several weeks by Defendants Mazzuca, O'Dell, Breen and unknown members of the Fishkill mail room staff. (Id.) Cancel filed a grievance about this interference with his regular mail recommending there be an investigation; however, his recommendation was denied. (Id. ¶ 39.) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 1 Dockets.Justia.com Cancel v. Goord, Not Reported in F.Supp.2d (2001) On December 21, 1999 Cancel received another piece of legal mail which had not been processed or handled as legal mail because it was opened outside his presence. (Id. ¶ 40.) Cancel filed a complaint regarding this incident and attached photocopies of the legal mail that had been opened outside his presence. (Id. ¶ 41.) On April 17, 2000 Cancel notarized two documents for a personal Family Court matter concerning his son, placed the legal documents in an envelope, sealed it, placed stamps on it and placed it in the outgoing mail addressed to “the other party in the matter.” (Id. ¶ 49.) The envelope was intercepted, opened and photocopied by Mazzuca, O'Dell, Breen and unknown members of the Fishkill mail room staff and the photocopies were placed in Cancel's file. (Id. ¶¶ 49– 51.) On July 12, 2000 Cancel met with a member of the Parole board who had Cancel's file which contained a memo from Mazzuca with the Family Court documents attached. (Id. ¶ 51.) Defendants continue to withhold Cancel's legal and regular mail. (Id.) factual conclusions” to survive a motion to dismiss. Gebhardt v. Allspect, Inc., 96 F.Supp.2d 331, 333 (S.D.N.Y.2000). *3 Furthermore, since the Plaintiffs are proceeding pro se their submissions should be judged on a more lenient standard than that accorded to formal pleadings drafted by lawyers. McNeil v. United States, 508 U.S. 106, 113 (1993). The court must make some reasonable allowances so that a pro se plaintiff does not forfeit his rights by virtue of a lack of legal training. Hudson, 2000 U .S. Dist. LEXIS 17913, at * 3. However, proceeding pro se does not altogether relieve a plaintiff from the usual pleading requirements. Id. at * 4. Plaintiffs' Civil Rights Claims A plaintiff has a civil cause of action under Every person who, under the color of any statute, ordinance, regulation, custom, or usage, of any State or Territory of the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other 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 injured in an action at law, suit in equity, or other proper proceedings for redress. On November 5, 1999 Plaintiff Owens picked up a piece of legal mail that had been opened and photocopied outside his presence and had been withheld for about a week. (Id. ¶ 45.) As a result, Owens was unable to “research and file a timely Criminal motion for which he received an adverse decision.” (Id.) The Defendants responsible for withholding this piece of legal mail were Mazzuca, Ercole, Erbert, Perez, O'Dell, Breen and unknown members of the Fishkill mail room staff. (Id.) Owens filed a grievance for the opening and photocopying of his legal mail denying him access to the courts, but it was denied. (Id. ¶ 47.) Legal Standard On a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6), the court must accept as true all well pleaded factual allegations set forth in the complaint and must draw all positive inferences in favor of the pleader. Hudson v. Greiner, No. 99 Civ. 12339, 2000 U.S. Dist. LEXIS 17913, at * 4 (S.D.N.Y. Dec. 12, 2000). A case should only be dismissed when “it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” § 1983 against: 42 U.S.C. § 1983. Plaintiffs bring this action under § 1983 alleging that Defendants violated their rights under the First, Fourth, Sixth and Fourteenth Amendments by unconstitutionally implementing the inmate grievance programs and by deliberately tampering and interfering with their regular and legal mail thereby denying them access to the courts and impinging on their rights to free speech. Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir.1994) (quoting Conley v. Gibson, 355 U.S. 41, 45–46 (1957)). A plaintiff must do more than plead mere “conclusory allegations or legal conclusions masquerading as Discussion 1. Denial of Access to Grievances and the Unlawful Operation of the Inmate Grievance Program © 2022 Thomson Reuters. No claim to original U.S. Government Works. 2 Cancel v. Goord, Not Reported in F.Supp.2d (2001) The amended complaint alleges that Defendant Goidel failed to process Cancel's grievance complaints and that the improper and unlawful running of the I.G.P. violated Cancel's First Amendment right to petition the government for redress and right of access to the courts. (Am.Compl.¶ 52.) Cancel also claims that Defendants Goord, Annucci, Mazzuca, Ercole, Perez, Erbert and Lowry failed to take action to “curb the unlawful practices of Defendant Goidel” even though they were aware that his unlawful conduct proximately caused the above constitutional violation. (Id. ¶ 53.) While there is a First Amendment right of meaningful access to the courts and a right to petition the government for redress, e.g ., Bill Johnson's Rest., Inc. v. NLRB, 461 U.S. 731, 741 (1983) (finding that “the right of access to the courts is an aspect of the First Amendment right to petition the Government for redress of grievances”), inmate grievance procedures are not required by the Constitution and therefore a violation of such procedures does not give rise to a claim under § 1983. Justice v. Coughlin, III, No. 94–CV–1287, 1996 U.S. Dist. LEXIS 15341, at * 11 (N.D.N.Y. July 1, 1996). When an inmate sets forth a constitutional claim in a grievance to prison officials and the grievance is ignored, the inmate has the right to directly petition the government for redress of that claim. Flick v. Alba, 932 F.2d 728, 729 (8th Cir.1991). Therefore, the refusal to process an inmate's grievance or failure to see to it that grievances are properly processed does not create a claim under § 1983. Id. *4 Thus, Cancel's claim that the Defendants violated his First Amendment right of access to the courts and right to petition the government for redress by failing to process his grievances lacks merit and is dismissed with prejudice. Cancel also claims that Goidel's failure to process his grievances and his unlawful and unfair running of the inmate grievance program violates New York State Correction Law § 139 which sets forth prison grievance procedures. (Am.Compl.¶ 52.) First, the failure to process a grievance in a timely manner only entitles an inmate to review at the next appeal level in the grievance process. See Cliff v. Goodman, 710 N.Y.S.2d 718 (App.Div.2000) (citing 7 NYCRR § 701.8 (2001)). Second, under New York law a claim generally challenging the constitutionality of the inmate grievance program does not constitute an actual controversy reviewable in an Article 78 proceeding or otherwise. Matter of Hall v. State of N.Y. Dept. of Corr., 453 N.Y.S.2d 58 (App.Div.1992). When Cancel's grievances were ignored by Goidel, Cancel sought review at the next level and his grievances were subsequently processed. Further, Cancel's general dissatisfaction with the inmate grievance program does not constitute an actual controversy reviewable by the Court. Id. Therefore, Cancel's claim that Goidel's actions violated New York State Corrections Law dismissed with prejudice. § 139 is 2. Denial of Access to the Courts as a Result of Legal Mail Tampering Prisoners have a First Amendment right of access to the courts, and where there is a deliberate and malicious interference with that right they may seek redress from the court. Washington v. James, 782 F.2d 1134, 1138 (2d Cir.1986). To state a valid § 1983 claim for denial of access to the courts due to interference with an inmate's legal mail, an inmate must allege that a defendant's deliberate and malicious interference actually impeded his access to the court or prejudiced an existing action. Lewis v. Casey, 518 U.S. 343, 349 (1996). Therefore, in order to survive a motion to dismiss a plaintiff must allege not only that the defendant's alleged conduct was deliberate and malicious, but also that the defendant's actions resulted in actual injury to the plaintiff such as the dismissal of an otherwise meritorious legal claim. Id. at 351. In other words “the plaintiff must show that a ‘non-frivolous legal claim had been frustrated or was being impeded’ due to the actions of prison officials.” Warburton v. Underwood, 2 F. Supp .2d 306, 312 (W.D.N.Y.1998) (quoting Lewis, 518 U.S. at 353); see also Moraghan, 127 F.3d 243, 247 (2d Cir.1997). Monsky v. Plaintiff Cancel does not state a cognizable § 1983 claim for denial of access to the courts because he has not alleged any actual injury resulting from Defendants' actions. Cancel alleges three instances where his legal mail was handled inappropriately. 4 Cancel must show that because Defendants opened his outgoing and incoming legal mail he was prejudiced in a legal action he sought to pursue. Because Cancel has not alleged such an injury, his claim under the First Amendment for denial of access to the courts is dismissed with leave to amend the complaint with allegations, if true, that (1) Defendants' interference with Cancel's legal mail injured him by prejudicing him in a legal action; and © 2022 Thomson Reuters. No claim to original U.S. Government Works. 3 Cancel v. Goord, Not Reported in F.Supp.2d (2001) (2) that the outgoing envelope containing the Family Court documents mailed on April 17, 2000 was clearly identifiable as legal mail. 5 *5 As to Plaintiff Owens' claim with respect to legal mail, the amended complaint alleges that because Owens' mail was opened and withheld for about a week he was “unable to research and file a timely response to a Criminal motion for which he received an adverse decision.” (Am.Compl.¶ 45.) A delay in being able to work on one's legal action or communicate with the courts does not rise to the level of a constitutional violation. Jermosen v. Coughlin, 877 F.Supp. 864, 871 (S.D.N.Y.1995) (citing Jones v. Smith, 784 F.2d 149, 151–52 (2d Cir.1986)). However, if Owens' adverse judgment to his otherwise meritorious Criminal motion was the result of the named Defendants' opening and withholding of his legal mail then he has stated a claim under § 1983 for denial of access to the courts. For purposes of this motion, the Court accepts all allegations as true and draws all positive inferences in favor of Plaintiff. See Hudson, 2000 U.S. Dist LEXIS 17913, at * 3. Therefore, Defendants' motion is denied as to Plaintiff Owens' claim under the First Amendment for denial of access to the courts. 3. Violation of the First Amendment Right to Free Speech for Interference with Cancel's Mail Cancel alleges that Defendants' continuous actions of opening and reading his incoming legal mail, the temporary withholding of his regular mail and the opening and photocopying of his outgoing legal mail impinges on his constitutional right to free speech. (Am.Compl.¶¶ 54, 60, 63.) Inmates unquestionably have a First Amendment right of free speech to send and receive mail, Wolfish v. Levi, 573 F.2d 118, 130 (2d Cir.1978), rev'd in part on other grounds sub nom., Bell v. Wolfish, 441 U.S. 520 (1979), and a prison official's interference with an inmate's mail may violate his First Amendment right to free speech, which includes the “right to be free from unjustified governmental interference with communication.” 820 (5th Cir.1993). Brewer v. Wilkinson, 3 F.3d 816, The boundary between an inmate's First Amendment right to free speech and the ability of prison officials to open or otherwise interfere with an inmate's mail is not precise. However, when analyzing such claims courts have consistently made distinctions between outgoing and incoming mail and legal and non-legal mail based on the various rights and interests at stake. See Taylor v. Sterrett, 532 F.2d 462, 475 (5th Cir.1976) (holding that the governmental interest in monitoring incoming mail is more substantial than its interest regarding outgoing mail); see also Lewis, 518 U.S. at 353 (holding that prison regulations or practices that affect a prisoner's legal mail are of particular concern because of the potential for interference with a prisoner's right of access to the courts). With respect to the first distinction, the Supreme Court has recognized that “the implications of outgoing correspondence for prison security are of a categorically lesser magnitude than the implications of incoming materials.” Thornburgh v. Abbott, 490 U.S. 401, 413 (1989). Therefore, the penological interests for interference with outgoing mail must be more than just the general security interest which justifies most interference with incoming mail. F.2d 50, 53 (2d Cir.1982). Davidson v. Scully, 694 *6 As to the second distinction, many courts have held that a prisoner's legal mail is entitled to a higher degree of protection than his regular mail. See Morgan v. Montanye, 516 F.2d 1367, 1368 (2d Cir.1975) (holding that although prison officials can inspect an inmate's general correspondence, different procedures apply to an inmate's legal mail which should be treated as confidential material); see also Taylor, 532 F.2d at 475. Therefore, prison polices or practices which interfere with legal mail on a regular basis whether incoming or outgoing must be supported by a legitimate penological interest other than mere general security concerns which permit interference with regular mail. Washington, 782 F.2d at 1139 (citing New York State Department of Corrections Directive 4421). A. Incoming Mail 1. Withholding of Incoming Non–Legal Mail Cancel alleges that Defendants withheld his incoming nonlegal mail and relies on a single instance when he received sixteen pieces of regular mail on the same day he filed a grievance about the opening of his legal mail. (Am.Compl.¶ 38.) These sixteen pieces of regular mail had been withheld for several weeks. (Id.) Prison regulations or practices affecting a prisoner's receipt of non-legal mail must be “reasonably related to legitimate penological interests,” © 2022 Thomson Reuters. No claim to original U.S. Government Works. 4 Cancel v. Goord, Not Reported in F.Supp.2d (2001) Abbott, 490 U.S. at 409 (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)), and “prison security is a sufficiently important governmental interest to justify limitations on a prisoner's [F]irst [A]mendment rights.” Gaines v.. Lane, 790 F.2d 1299, 1304 (7th Cir.1986). However, this general security interest will not justify a regular pattern and practice of such interference absent other prison concerns with regards to a particular inmate. F.3d 778, 782 (7th Cir.1999). Rowe v. Shake, 196 This Court agrees with the reasoning of the Seventh Circuit in Rowe that in order for an inmate to state a claim for interference with incoming non-legal mail he must show a pattern and practice of interference that is not justified by any legitimate penological concern. Id. Because Cancel only alleges that prison officials withheld his regular mail on one occasion, rather than showing a pattern and practice of such behavior, his First Amendment free speech claim for the withholding of his regular incoming mail is dismissed with leave to amend the complaint to include specific allegations, if true, establishing such a pattern and practice. 2. Opening and Withholding of Incoming Legal Mail Cancel alleges two occasions upon which the Defendants opened his incoming legal mail outside his presence. (Am.Compl.¶¶ 22, 40.) Although legal mail is “privileged” and is afforded a higher degree of protection, there still must be a showing that prison officials regularly and unjustifiably interfered with the incoming legal mail rather than merely showing an isolated incident. F.2d 1134, 1139 (2d Cir.1986). Washington v. James, 782 *7 In Washington, the Second Circuit held that more than one incident of interference with legal mail could give rise to a constitutional claim if it indicated ongoing activity. 782 F.2d at 1139; see also Bieregu v. Berman, 59 F.3d 1445, 1452 (3d Cir.1995) (finding that an allegation that prison officials had opened an inmate's incoming legal mail on fifteen occasions was sufficient to show a pattern and practice of deliberate interference). However, in the present case Plaintiff proffers only two instances of opening incoming legal mail with no indication that such practices are ongoing. Without alleging additional facts to establish a pattern and practice that rises to the level of constitutionally impermissible censorship, Plaintiff's complaint is deficient. Therefore, Cancel's claim that Defendants violated his First Amendment right to free speech for interference with his incoming legal mail is dismissed with leave to amend the complaint to include specific allegations, if true, that establish the requisite pattern and practice of interference. 6 B. Outgoing Legal Mail Cancel's claim that prison officials interfered with his outgoing legal mail poses a different question. As previously stated, the Supreme Court has explicitly recognized that there are “differing penological concerns with respect to outgoing and incoming mail.” Brewer v. Wilkinson, 3 F.3d 816, 825 (5th Cir.1993) (citing Thornburgh v. Abbott, 490 U.S. 401, 413 (1989)). The Second Circuit has held that prison officials can only open an inmate's outgoing legal mail if there is a “rational justification” for doing so. Davidson, 694 F.2d at 54 (citing Wolfish, 573 F.2d at 130.). The Fifth Circuit has applied the same standard to an instance where an inmate's outgoing legal mail was opened and censored without a “legitimate penological interest” and found the practice to violate the inmate's First Amendment right to free speech. Brewer, 3 F.3d at 825. In the present case, Defendants have failed to state any rational justification for opening and photocopying Cancel's outgoing legal mail. Because interference with outgoing legal mail cannot be based on a general prison security interest, Defendants must provide additional justification for their actions. Therefore, because Defendants have interfered with Cancel's outgoing legal mail without providing any legitimate penological interest, Cancel has stated a valid claim under the First Amendment right to free speech. 7 Defendants' motion to dismiss Cancel's claim for violation of his First Amendment right to free speech is denied with respect to his outgoing legal mail. 4. Money Damages Barred by 42 U.S.C. § 1997e(e) of the Prison Litigation Reform Act Defendants argue that the money damages Plaintiffs seek are barred by 42 U.S.C. § 1997e(e) of the Prison Litigation Reform Act because the complaint does not allege any physical injury. (Defs.' Mem. at 8–9.) Section 1997e(e) states, “[n]o federal civil action may be brought by a prisoner confined in jail, prison, or other correctional facility, for © 2022 Thomson Reuters. No claim to original U.S. Government Works. 5 Cancel v. Goord, Not Reported in F.Supp.2d (2001) mental or emotional injury suffered while in the custody without a prior showing of physical injury.” Id. *8 The plain language of the statute does not prohibit a plaintiff's First Amendment claim. Section 1997e(e) specifically prohibits federal civil action[s] for mental or emotional injury without a showing of physical injury. In this case Plaintiffs do not allege any claim of mental or emotional distress for which they are seeking redress. Furthermore, the few courts that have addressed this issue have held that: in the opening and withholding of his legal mail. Additionally, Mazzuca is implicated in Cancel's claim for violating his First Amendment right to free speech. Accepting these allegations as true, the Defendants' motion to dismiss for lack of personal involvement against Mazzuca, Ercole, Perez, and Erbert is denied. As to Defendants Goord, Annucci and Jones, in a § 1983 action supervisors cannot be held liable under the theory of respondeat superior for the acts of their subordinates. Id. at * 7. A supervisor can only be found to be personally involved if there is evidence that there was: (1) direct participation in the alleged constitutional violation, (2) failure to remedy a wrong after learning of it, (3) creation or maintenance of a policy under which unconstitutional violations occurred, (4) gross negligence in managing subordinates who committed the unconstitutional acts, or (5) deliberate indifference by failing to act on information indicating that constitutional the deprivation of First Amendment rights entitles a plaintiff to judicial relief wholly aside from any physical injury he can show, or any mental or emotional injury he may have incurred. Therefore, § 1997e(e) does not apply to First Amendment claims regardless of the form of relief sought. violations were occurring. Id.; see also Colon, 58 F.3d at 873. Allegations that a supervisor ignored an inmate's grievance letter of protest and request for an investigation is insufficient to find that a supervisor is personally involved in the alleged constitutional violations. Kinch v. Artuz, No. 97 Reynolds v. Goord, No. 98 Civ. 6722, 2000 U.S. Dist LEXIS 2140, at * 23 (S.D.N.Y. Mar. 1, 2000) (quoting Canell v. Lightner, 143 F.3d 1210, 1213 (9th Cir.1998)). Therefore, § 1997e(e) is not applicable to the present case and does not bar Plaintiffs from seeking recovery for First Amendment claims of denial of access to the courts and violation of free speech. 5. Lack of Personal Involvement of Defendants The personal involvement of defendants in an alleged constitutional violation is a prerequisite under § 1983. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995). A plaintiff must allege that each defendant was directly and personally responsible for the purported conduct and establish fault and causation on the part of each defendant. Motors, Inc. v. Ward, 814 F.2d 883 (2d Cir.1987). Alfaro Defendants move to dismiss all claims against Defendants Goord, Annucci, Jones, Mazzuca, Ercole, Perez and Erbert for lack of personal involvement. Plaintiffs' amended complaint as to Owens' legal mail claim alleges that Defendants Mazzuca, Ercole, Perez, and Erbert were personally involved Civ. 2419, 1997 U.S. Dist. LEXIS 13998, at * 8 (S.D.N.Y. Sept. 15, 1997). *9 Plaintiffs' amended complaint contains no allegations relating to the personal involvement of Defendants Goord, Annucci and Jones either through direct participation, maintenance of a policy or deliberate disregard for Plaintiffs' rights. Plaintiffs' sole claim against these three Defendants is that they were sent grievances and complaints by Cancel which were ignored. Plaintiffs' claims as to these three Defendants are dismissed with prejudice. Conclusion For the above stated reasons the Defendants' motion is granted in part and denied in part as follows: (1) Cancel's claims against Goidel under the First Amendment right to petition the government for redress and right of access to the courts for failure to process grievances and for the unlawful running of the I.G.P. are dismissed with prejudice. (2) Cancel's claims against Defendants Goord, Annucci, Mazzuza, Ercole, Perez, Erbert and Lowry for failure to curb © 2022 Thomson Reuters. No claim to original U.S. Government Works. 6 Cancel v. Goord, Not Reported in F.Supp.2d (2001) the unlawful practices of Goidel in his unlawful running of the I.G.P. are dismissed with prejudice. (3) Cancel's claim that Goidel's actions violated New York State Corrections Law § 139 is dismissed with prejudice. (8) Defendants' motion is denied as to Cancel's claim under the First Amendment for a violation of free speech for interference with his outgoing legal mail against Mazzuca, O'Dell, Breen and unknown members of the Fishkill mail room staff. (4) Cancel's claim under the First Amendment for denial of access to the courts is dismissed with leave to amend the complaint with allegations that (a) Defendants' interference with Cancel's legal mail injured him by prejudicing him in a legal action; and (b) that the outgoing envelope containing the Family Court documents mailed on April 17, 2000 was clearly identifiable as legal mail. (9) Defendants' motion to dismiss the claims against Mazzuca, Ercole, Perez, and Erbert for lack of personal involvement is denied. (5) Defendants' motion is denied as to Owens' claim under the First Amendment for denial of access to the courts against Mazzuca, Ercole, Perez, Erbert, O'Dell, Breen and unknown members of the Fishkill mail room staff. (11) The Court also considered Plaintiffs' claim that Defendants' actions violated Article 14 and 17 of the International Covenant on Civil and Political Rights (“ICCPR”). (Am.Compl.¶ 54, 55, 58, 60.) However, courts have uniformly held that the ICCPR is not self-executing and does not give rise to a private right of action. See Beazley v. (6) Cancel's claim under the First Amendment right to free speech for the withholding of his regular incoming mail is dismissed with leave to amend the complaint with specific allegations that establish a pattern and practice of interference. (7) Cancel's claim that Defendants violated his First Amendment right to free speech for interference with his incoming legal mail is dismissed with leave to amend the complaint with specific allegations that establish a pattern and practice of interference with Cancel's incoming legal mail. (10) Defendants' motion to dismiss the claims against Goord, Annucci and Jones for lack of personal involvement is granted with prejudice. Johnson, No. 99–41383, 2001 WL 118393, at * 18– * 19 (5th Cir.2001) (citing additional cases). Therefore, the Court sua sponte dismisses Plaintiffs' claims under the ICCPR. All Citations Not Reported in F.Supp.2d, 2001 WL 303713 Footnotes 1 2 3 Plaintiffs' independently move pursuant to Fed.R.Civ.P. 37(d) for an order compelling defendants to comply with Plaintiffs' interrogatories. As Defendants do not oppose this motion, and because the court has partially denied Defendants' motion to dismiss, Plaintiffs' motion is granted. Defendants are hereby required to respond to Plaintiffs' interrogatories, except those regarding the Inmate Grievance Program, within sixty days of the date hereof. The facts set forth herein are adduced from a liberal reading of Plaintiffs' complaint. See Lewinski, 848 F.2d 342, 344 (2d Cir.1998). Graham v. New York Civil Service Law § 75 provides a cause of action for civil service employees unlawfully removed. Although neither party addressed this claim in their motion papers, the Court notes that § 75 specifically delineates five categories of persons who may maintain a cause of action for removal. Because Cancel does not fall into one of these five categories he has no standing to bring suit under this provision. © 2022 Thomson Reuters. No claim to original U.S. Government Works. 7 Cancel v. Goord, Not Reported in F.Supp.2d (2001) 4 5 Liberally construing Plaintiffs' complaint, the Court assumes that the Family Court documents Cancel mailed on April 17, 2000 were in an envelope addressed to a person or entity that would clearly identify the letter as legal mail or that the envelope was marked as “legal mail.” Plaintiff only alleges that he sent these Family Court documents to “the other party in the matter” (Am.Compl.¶ 49) and the Court assumes for the purpose of this motion only that the envelope in question was clearly identified as legal mail. “[T]he court should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” 6 7 Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir.1999) (quoting Branum v. Clark, 927 F.2d 698, 705 (2d Cir.1991)). Plaintiffs' also allege that in October 1999 Defendant Lowery ordered mail sent to any inmate by the Legal Aid Society regarding contemplated litigation against the New York State Parole Board to be confiscated if seen. (Am.Compl.¶ 42.) In addition, Defendant Ercole also instructed the Fishkill mail room staff to confiscate all mail envelopes larger than regular size, to transfer the contents to a facility envelope and then forward it to the inmate to whom it is addressed. (Id. ¶ 43.) Plaintiffs make these allegations in their complaint without stating that they personally were to receive this letter from the Legal Aid Society or that Ercole's policy affected their mail in any way. Because there is no allegation that Plaintiffs' mail was affected by either policy they have no standing to bring a suit for these allegations and they are not addressed by the Court. Plaintiffs' are given leave to amend the complaint to allege, if that be the case, that these polices affected their personal legal mail. If such allegations are made they will be considered in establishing a pattern and practice of interference with legal mail. As originally stated in footnote 4, the Court again presumes that the Family Court documents were placed in an envelope marked or addressed in such a way that it could be identified as legal mail. If in fact this document was not privileged legal mail, this First Amendment free speech claim may require a different analysis. End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works. © 2022 Thomson Reuters. No claim to original U.S. Government Works. 8 Sanders v. Gifford, Not Reported in F.Supp.3d (2014) 2014 WL 5662775 Only the Westlaw citation is currently available. United States District Court, N.D. New York. James SANDERS, Plaintiff, v. A. GIFFORD, et al., Defendants. No. 9:11–CV–0326 (LEK/RFT). | Signed Nov. 4, 2014. Attorneys and Law Firms James Sanders, Haverstraw, NY, pro se. Hon. Eric T. Schneiderman, Attorney General of the State of New York, Cathy Y. Sheehan, Esq., Assistant Attorney General, of Counsel, Albany, NY, for Defendants. ORDER LAWRENCE E. KAHN, District Judge. *1 This matter comes before the Court following a Report–Recommendation filed on September 18, 2014, by the Honorable Randolph F. Treece, U.S. Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3. Dkt. No. 101 (“Report–Recommendation”). Within fourteen days after a party has been served with a copy of a magistrate judge's report-recommendation, the party “may serve and file specific, written objections to the proposed findings and recommendations.” FED. R. CIV. P. 72(b); L.R. 72.1(c). If no objections are made, or if an objection is general, conclusory, perfunctory, or a mere reiteration of an argument made to the magistrate judge, a district court need review that aspect of a reportrecommendation only for clear error. Chylinski v. Bank of Am., N.A., 434 F. App'x 47, 48 (2d Cir.2011); Barnes v. Prack, No. 11–CV–0857, 2013 WL 1121353, at *1 (N.D.N.Y. Mar. 18, 2013); Farid v. Bouey, 554 F.Supp.2d 301, 306–07 & n. 2 (N.D.N.Y.2008); see also Machicote v. Ercole, No. 06 Civ. 13320, 2011 WL 3809920, at *2 (S.D.N.Y. Aug. 25, 2011) (“[E]ven a pro se party's objections to a Report and Recommendation must be specific and clearly aimed at particular findings in the magistrate's proposal, such that no party be allowed a second bite at the apple by simply relitigating a prior argument.”). No objections were filed in the allotted time period. See Docket. Accordingly, the Court has reviewed the Report– Recommendation for clear error and has found none. Accordingly, it is hereby: ORDERED, that the Report–Recommendation (Dkt. No. 101) is APPROVED and ADOPTED in its entirety; and it is further ORDERED, that Defendants Harold Graham and Cheryl Parmiter's Motion (Dkt. No. 94) to dismiss is GRANTED; and it is further ORDERED, that Defendants Harold Graham and Cheryl Parmiter are DISMISSED from this action; and it is further ORDERED, that the Clerk of the Court serve a copy of this Order on the parties in accordance with the Local Rules. IT IS SO ORDERED. REPORT–RECOMMENDATION and ORDER RANDOLPH F. TREECE, United States Magistrate Judge. In March 2011, pro se Plaintiff James Sanders, while incarcerated at Auburn Correctional Facility (“Auburn”), commenced a civil rights action, pursuant to 42 U.S.C. § 1983, against Defendant Andrew Gifford, a correctional officer, for alleged use of excessive force during a pat frisk he conducted on or about February 15, 2011. Dkt. No. 1, Compl.; Dkt. No. 10, Am. Compl. On March 11, 2014, Sanders filed his Third Amended Complaint 1 to add two additional Defendants to the instant action: Harold Graham, Superintendent of Auburn Correctional Facility, and Cheryl Parmiter, Inmate Grievance Supervisor. Dkt. No. 83, Third Am. Compl., at ¶¶ 3(b)-(c). Specifically, Plaintiff alleges that Defendant Graham 1) failed to properly supervise and train Defendant Gifford, 2) failed to “put a stop” to the harassment/sexual harassment, and 3) failed to report a “sexual assault complaint” to the Inspector General pursuant to the Department of Corrections and Community Supervision's (“DOCCS”) policy directives. Id. at ¶ 6. In © 2022 Thomson Reuters. No claim to original U.S. Government Works. 1 Sanders v. Gifford, Not Reported in F.Supp.3d (2014) addition, Sanders alleges that Cheryl Parmiter violated his due process rights by failing to process his March 20, 2011 appeal to the Central Office Review Committee (“CORC”). Id. Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendants Graham and Parmiter filed a Motion to Dismiss all claims asserted against them. Dkt. No. 94. Plaintiff has “chosen not to respond.” Dkt. No. 98, Lt. I. DISCUSSION A. Standard of Review *2 On a motion to dismiss, the allegations of the complaint must be accepted as true. See Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972). The trial court's function “is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.” Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir.1980). “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is Ass'n, Local 1625, AFL–CIO v. Schermerhorn, 373 U.S. 746, 754 n. 6, 83 S.Ct. 1461, 10 L.Ed.2d 678 (1963); see also Arar v. Ashcroft, 532 F.3d 157, 168 (2d Cir.2008). Nevertheless, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Therefore, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citation omitted). A motion to dismiss pursuant to Rule 12(b)(6) may not be granted so long as the plaintiff's complaint includes “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Ashcroft v. Iqbal, 556 U.S. at 697 (citing Twombly ). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for (1974) (overruled on other grounds by Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984)). the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678. This plausibility standard “is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. In this respect, to survive dismissal, a plaintiff “must provide the grounds upon which his claim rests through factual allegations sufficient ‘to “Generally, in determining a 12(b)(6) motion, the court may only consider those matters alleged in the complaint, documents attached to the complaint, ... matters to which the court may take judicial notice[,]” as well as documents incorporated by reference in the complaint. Spence v. Senkowski, 1997 WL 394667, at *2 (N.D.N.Y. July 3, 1997) raise a right to relief above the speculative level.’ “ ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007) (quoting Bell Atl. Corp. v. Twombly, 440 U.S. at 555). Thus, in spite of the deference the court is bound to give to the plaintiff's allegations, it is not proper for the court to assume that “the [plaintiff] can prove facts [which he or she] has not alleged, or that the defendants have violated the ... entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (citing Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir.1991)); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.1991) (citing FED. R. CIV. P. 10(c)). Moreover, “even if not attached or incorporated by reference, a document ‘upon which [the complaint] solely relies and which is integral to the complaint’ may be considered by the court in ruling on such a motion.” F.3d 499, 509 (2d Cir.2007) (quoting v. Sum Holding L.P., 949 F.2d at 47). Roth v. Jennings, 489 Cortec Indus. ., Inc. The court is bound to give the plaintiff the benefit of every reasonable inference to be drawn from the “well-pleaded” allegations of the complaint. See Retail Clerks Intern. laws in ways that have not been alleged.” Assoc. Gen. Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983). The process of determining whether a plaintiff has “nudged [his] claims ... across the line from conceivable to plausible,” entails a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Ashcroft v. Iqbal, 556 U.S. at 679–80. *3 Furthermore, when a plaintiff is proceeding pro se, his submissions should be judged on a more lenient standard than that accorded to formal pleadings drafted by lawyers. Cancel v. Goord, 2001 WL 303713, at *3 (S.D.N.Y. © 2022 Thomson Reuters. No claim to original U.S. Government Works. 2 Sanders v. Gifford, Not Reported in F.Supp.3d (2014) Mar.29, 2001) (citing McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993)). “The court must make some reasonable allowances so that a pro se plaintiff does not forfeit his rights by virtue of a lack of legal training.” Id. With this standard in tow, we consider the plausibility of Plaintiff's Third Amended Complaint. B. Supervisory Liability The Second Circuit has held 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) (citations omitted). Moreover, “the doctrine of respondeat superior cannot be applied to section 1983 actions to satisfy the prerequisite of personal involvement.” Kinch v. Artuz, 1997 WL 576038, at *2 (S.D.N.Y. Sept.15, 1997) (citing Colon v. Coughlin, 58 F.3d 865, 874 (2d Cir.1995) & Wright v. Smith, 21 F.3d at 501) (further citations omitted). Thus, “a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the constitution.” Ashcroft v. Iqbal, 556 U.S. at 676. Plaintiff contends that he suffered a constitutional deprivation as a result of Defendant Graham's failure to properly supervise and train Defendant Gifford and for failing to intervene/stop Defendant Gifford from harassing him. Third Am. Compl. at ¶ 6. While mindful of our obligation to liberally construe the pro se Plaintiff's pleading, such liberality cannot be extended to this pleading as it is replete with nothing more than conclusions. Assoc. Gen. Contractors of California, Inc. v. California State Council oj Carpenters, 459 U.S. at 526. Plaintiff merely states that “Defendant Harold D. Graham who is the Superintendent of Auburn ... and who supervises all correctional officers and staff that are employed at Auburn ... failed to properly supervise and or train Defendant Gifford or put a stop to the harassment or sexual harassment [.]” Plaintiff further states that Defendant Graham was informed of Defendant Gifford's behavior through “complaints and grievances” but provides no particular facts regarding dates/times of such complaints nor the contents therein. Indeed, it appears that Plaintiff is attempting to hold Defendant Graham liable simply because of his position of authority. An individual cannot be held liable for damages under § 1983 merely because he holds a position of authority, but he can be held liable if he was personally involved in the alleged deprivation. The personal involvement of a supervisory defendant may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring. *4 Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995) (citations omitted). Without particularized facts delineating Defendant Graham's personal involvement, Plaintiff's supervisory liability claim against him cannot survive Defendants' Motion to Dismiss. See Ashcroft v. Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). C. Due Process Plaintiff contends that Defendant Graham violated his due process rights when, after informing Defendant Graham of Defendant Gifford's “abusive” conduct, he failed to report it contrary to DOCCS's policy directive concerning staff-on-inmate sexual abuse. However, even assuming that Defendant Graham deviated from state procedures or DOCCS Directives, a violation of such rules and regulations does not, standing alone, give rise to liability under © 2022 Thomson Reuters. No claim to original U.S. Government Works. § 1983. 3 Sanders v. Gifford, Not Reported in F.Supp.3d (2014) Doe. v. Conn. Dep't of Child and Youth Servs., 911 F.2d 868, 869 (2d Cir.1990); see also Ahlers v. Nowicki, 2014 WL 1056935, at *4 (N.D.N.Y. Mar.18, 2014) (“[C]laims involving the improper adherence to proprietary facility policies are incognizable under § 1983; only rights secured by the Constitution and federal law are actionable under 1983.” (citing § Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979) and Soto v. Walker, 44 F.3d 169, 173 (2d Cir.1995)). Thus, Defendant Graham's alleged failure to comply with DOCCS's policy directive is not a constitutional violation. Plaintiff also fails to state a cognizable claim under section 1983 against Defendant Parmiter. Plaintiff contends that Defendant Parmiter “who is the Inmate Grievance Supervisor” at Auburn violated his right to due process by failing to process his March 20, 2011 appeal to CORC. Third Am. Compl. at ¶ 6. “The First Amendment protects a prisoner's right to meaningful access to the courts and to petition the government for the redress of grievances.” Shell v. Brzezniak, 365 F.Supp.2d 362, 369 (W.D.N.Y.2005). However, “inmate grievance procedures are not required by the Constitution and therefore a violation of such procedures does not give rise to a claim under § 1983.” Cancel v. Goord, 2001 WL 303713, at *3. Thus, Defendant Parmiter's alleged refusal to process Plaintiff's grievance is not actionable pursuant to § 1983. 2 Thus, this Court recommends dismissing all claims against Defendant Parmiter. II. CONCLUSION For the reasons stated herein, it is hereby RECOMMENDED, that Defendants Graham's and Parmiter's Motion to Dismiss (Dkt. No. 94) be GRANTED and that they be dismissed from this action; and it is further ORDERED, that the Clerk of the Court serve a copy of this Report–Recommendation and Order upon the parties to this action. Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) 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 WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir.1989)); see also 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72 & 6(a). *5 Filed Sept. 18, 2014. All Citations Not Reported in F.Supp.3d, 2014 WL 5662775 Footnotes 1 2 On March 10, 2014, the Court granted Sanders's unopposed Motion to Amend the Amended Complaint. Dkt. No. 82, Rep.-Rec. & Order. To the extent Plaintiff is attempting to hold Defendant Parmiter liable for denying or interfering with his ability to access the courts, such claim must also fail as Plaintiff has not alleged any injury stemming therewith. Lewis v. Casey, 518 U.S. 343, 353, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (noting that in order to state a denial of the right to access courts, an inmate must show an actual injury, that is, that a “nonfrivolous legal claim had been frustrated or was being impeded” due to the official's actions). End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works. © 2022 Thomson Reuters. No claim to original U.S. Government Works. 4

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.