Nieves et al v. Gonzalez et al, No. 1:2005cv00017 - Document 100 (W.D.N.Y. 2013)
Court Description: -CLERK TO FOLLOW UP-ORDER granting 94 Motion for Summary Judgment. Signed by Hon. H. Kenneth Schroeder, Jr on 8/28/2013. (KER)
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Nieves et al v. Gonzalez et al Doc. 100 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK LUIS NIEVES, Plaintiff, 05-CV-00017S(Sr) v. C.O. BOOKER, C.O. JOHNSON, and CORRECTIONS COUNSELOR ZIMMERMAN, Defendants. DECISION AND ORDER Pursuant to 28 636(c), the parties have consent@d to the 'U.S.C. $ assignment of this case to the undersigned to conduct all proceedings in this case, including the entry of finaljudgment. Dkt. #72. Currently before the Court is defendants' motion for sumrhary judgnxent. Dkt. #94. For the following reasons, defendants' motion is granted. PROCEDURAL BACKGROUND , Plaintiff, Luis Nieves, a former inmate of the New York State Department of Corrections and Community Supervision ("NYSDOCCS"), paid the filing fee and commenced this action, pro se, pursuant to 42 U.S.C. S 1983, in the Eastern District of New York on Novem ber 12,2004. Dkt. ##1 & 3. The matter was transferred to the Western District of New York, which granted summary judgment to defOndant Frances Gonzalez. Dkt. #36. Thereafter, the Court dismissed plaintiff Maya Jones as a party. Dkt. #77. Dockets.Justia.com FACTUAL BACKGROUND Plaintiff's amended complaint alleges that on June 28,2004, while in the Special Housing Unit ("SHU"), at the Attica Correctional Facility ('Attical), Corrections Officer ('C.O.') J. Johnson conducted a random search of plaintiff's cell. Dkt. #79, 1l1l 8-9. During this search, C.O, Johnson and the porter accompanying him, a gang leader named Billy, stole plaintiff's property, including "personal and private papers and documents . . . containing names, numbers and addresses" for plaintiffs "family, lawyers [and] banks." Dkt. #79, 11 10. Plaintiff subsequently observed tsilly passirg these addresses and phone numbers to other members of his gang. Dkt. #79, 11 13 Plaintiff alleges that his incoming and outgoing mail with his wife, family, friends, attorneys, and law enforcement agencies was intercepted and "[B]illy u*as observed answering all of plaintiffs incoming mail" which had been "given to him by C.O. Johnson and C.O. Booker. Dkt. #79, tlfl 15-16. On August 4,2A04, plaintiff alleges that he handed a seabd letter of complaint addressed to the $uperintendent or Sergeant of Attica detailing his difficulties with C.O. Booker and C.O. Johnson to Corrections Counselor Zimmerman, who gave it to C.O. Booker, who gave it to Billy. Dkt. #79, fllI22-25. Plaintiff also alleges that on August 5, 2004, he gave C.O. Booker a,letter addressed to the New York City Police Department,l which contained the address of his ln support of his prior r,notion for summary judgment, plaintiff attached a copy of his August 5,2OO4letter to the 83d Precinct of the New York City Police Departnlent requesting tnai the police send undercover officers to the home of his wife and family members to remove them before they were kidnaped and murdered by gang members. Dkt. #10, pp.16-17. 1 wife and family members, and observed C.O. Booker place the letter "into the SeQurity Mail box for the outgoing mail." Dkt. #79, 111117-18. Shortly thereafter, plaintiff observed Billy passing xeroxed copies of the letter to other inmates, who wrote lefters to his wife, family members and the New York City Police Department, thereby misleading the New York Police Department's investigations and endadgering plaintiff and his family. Dkt. #79, 1l1l17-21. Plaintiff claims that the diversion of his mail violated his First Amendment rights; the search and seizure of his personal information violated his Fourth Amendment rights; and the defendants'failure to safeguard his personal propertyspd their deliberate indifference to his right to communicate with his family violated his right to privacy under the due process clause of the Fourteenth Amendment. and his Eighth Amendment rights to be free from cruel and unusual punishment. Dkt..#79. When questioned at his deposition as to the source of his knowledge for the allegations set forth in his complaint, plaintiff testified that federal government surveillancerecordedeverythingandrelayedmessagestohimthroughwireless communications which exposed him to radioactive material. Dkt. #91. Plaintiff's complaint also alleges that he was subjected to satellite and radar surr,eillance under the U.S. Patriot Act which extracted information from his brain waves and shocked his central neryous system. Dkt. #79, 1]1142-45. Plaintiff acknowledges that he suffers from mental illness. Dkt. #79, It28. -J- Maya Jones' deposition testimony denies receiving any correspondence from anyone other than plaintiff, denies being threatened and denies any knowledge of other inmates impersonating plaintiff or stealing information and using ft to harass her. Dkt. #92, pp.6-7, 10 & 25. Ms. Jones testified that All my correspondence has been from [plaintiff]. To the point where we don't even open the mail anymore. We throw it in the garbage. Dkt #92, p.8. Ms. Jones is divorced from plaintiff and asked to be placed on plaintiff's no contact list. Dl(. #92, pp.,12 & 18-19. By memorandum dated October 12,2004,the Superintendent of Auburn informed plaintiff that Ms. Jones had informed the facility that she did not wish to receive any communication from him, either in writiqg or by telephone, and warned plaintiff that disciplinary action would be taken against him if he attempted any further contast with her. Dkt. #1 O, pp.24 & 39. On October 16, 2004, Maya Jones filed a complaint with the 83'd Precinct alleging that plaintiff sent her , threatening letters. Dkt. #17, Exh. H. DISCUSSION AND ANALYSIS Defendants argue plaintiffs claims are fanciful and lack factual support. Dkt. #96. Plaintiff failed to respond to defendants' motion despite receiving notice of the requirements of Rute 56 of the Federal Rules of Civil Procedure and the consequences of noncompliance therewith, as set forth in lfuy v. New York City Transit Authority,262 F.3d 412 (2dCir. 2001). Dkt. #94. Motion for Summary Judgment Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 'any, show,that there is no genuine issue as to any material fact and that the moving party is entitted to judgment as a matter of law." Fed.R.Civ.P. 56(c). "ln reaching this determination, the court must assess whether there are any material factual issues to be tried while resolving ambiguities and drawing reasonable inferences against the moving party, and must give extra latitude to a pro se plaintiff." Thomas v. \ruin,981 F. Supp. 794,799 (W.D.N.Y. 1 997) (internal citations omitted). A fact is "material" only if it has some effect on the outcorhe of the suit. Anderson v. Liberty Lobby, inc.,477 U.5.242,248 (1986); see Catanzaro v. Weiden, 140 F.3d 91 , 93 (2d Cir. 1998). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson,477 U.S. at248; $ee Bryant v. Maffucci,923 F.2d 979 (2d Cir.), cefi. denied, 502 U.S.849 (1991). Once the moving party has met its burden of "demonstrating the abtence of a genuine issue of material fact, the nonmoving party must come fortruard with enough evidence to support a jury verdict in its favor, and the motion will not be defeated merely upon a 'metaphysical doubt'concerning the facts, or on the basis of conjecture or surmise ." Bryant, g23 F.2d at 982. A party for summary judgment -5- seeking to defeat a mdion must do more than make broad factual allegations and invoke the appropriate statute. The [party] must also show, by affidavits or as othenruise provided in Rule 56 of the Federal Rules of Civil Procedure, that there are specific factual issues that can only be resolved at trial. Colon v. Coughlin, 58 F.3d 8,65,872 (2d Cir. 1995). "The non-moving party may rtot rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence showing that its version of events is not wholly fanciful." D'Amico v. City of New York, 132 F.gd 145, 14g (2d Cir. 1998). 42 U.S.C. S 1983 "permits an individual deprived of a federal right by a person acting under color of state law to seek compensation in federal court. " Wimmer v. Suffolk Cty Police Dep't,176 F.3d 125, 136 (2d Cir.), cert. denied,528 U.S. 964 (1999). To prevail on a claim pursuant to S 1983, "plaintiff must prove that the challenged conduct was attributable at least in part to a person acting under color of state law, and that the conduct deprived the plaintiff of a right, privilege or immunity secured by the Constitution or laws of the United States." ld. a|137. Plaintiff cannot maintain a claim that he was subjected to an unreasonable cell search because "the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prisorn cell." Hudson v. Palmer,468 U.S. 517, 526(198a); See M7lrs v. Artuz,301 F.3d 65, 69 (2d Cir. '2002) ("convict has no expectation of privacy in his prison cell."). Moreover, any claim that defendants violated his due process rights by refusing to return seizedrproperty must fail since New York State courts provide adequate post-deprivation remedies. Koehl v. Dalsheim, SS F.3d 86, 88 (2d Cu. 1996). It is well-established that prison inmates have a First Amendment right to petition the Government for a redress of their grievances, which includes the right of reasonable acces$ to the courts. Amaker v. Hakes,g19 F. Supp. 127 , 130 (W.D:N.Y. 1996). ln order to state a valid claim, however, the inmate must allege facts tending to show that the alleged deprivation actually interfered with his or her acc6ss to the courts or prejudiced an existing action." /d. Plaintiffs vague allegations that his legal mail from attorneys and law enforcement agencies was withheld from him and diverted to inmate Billy is insufficient to establish this element. "ln addition to the right of access to the courts, a prisonerls right to the free flow of incoming and outgoing mail is protected by the First Amendment." Davis v. Goord,320 F.3d 346, 351 (2d Cir. 2OO3). Again, however, plaintiff must demonstrate actual injury resulting from the interference with his correspondence. /d. Plaintiff cannot meet this burden in light of Ms. Jones' deposition testimony that she received and discarded correspondence from plaintiff and asked prison officials to prevent plaintifffromcorrespondingwithher.Dkt.#92,p.8. "Under certain circumstances the disclosure by prison officials of inherently confidential and sensitive information regarding an inmate can support b due proces$ violation claim under the Fourteenth Amendment." Dorsey v. Fisher, No.,09-7- CV-101 1, 2010 WL 2008966, at * (N.D.N.Y. May 19, 2o1o). For example, sensitive medical information, such as HIV status, transexualism or diagnosis of mental illness, may be protected from disclosure to other inmates under the confidentiality prong of privacy interests recognized,in Whalen v. Roe,42g U.S. 589 (1gzz). Macomber, No. 97 Civ. 4127 ,1 999 WL 349696, at "2-3 (S. N.y. May 2T ,1 ggg) D. See Taytorv. (collecting cases), The information plaintiff alleges to have been disclosed, to wit, names, address and numbers for plaintiffs family, lawyers and banks, does not rise to the level of confidential and sensitive information which has been afforded constitutional protection. Plaintiffs remaining allegations are dismissed as factually frivolous. See Denton v. Hernandez, 504 U.s. 25, 32-33 (1992) (court may dismiss a claim as factually frivolous only if the facts alleged are "clearly baseless," a cateBory encompassing allegations that are "fanciful, "fantastic" and "delusional."). CONCLUSION For the foregoing reasons, defendants' motion for summary judgment (Dkt. #%), is granted. SO ORDERED. DATED: Buffalo, New York August 28,2013 s/ H. Kgnneth Schroeder. .fr. H. KENNETH SCHROEDER, i'R. United States Magistrate Judge
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