Leniart v. Murphy et al

Filing 181

RULING granting 163 Motion for Summary Judgment. The Clerk of the Court is directed to enter judgment in favor of the defendants. Signed by Judge Sarah A. L. Merriam on 3/31/2016. (Katz, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
GEORGE M. LENIART
:
:
v.
:
:
PETER MURPHY, et al.
:
:
------------------------------x

Civ. No. 3:11CV01635(SALM)

March 31, 2016

RULING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [Doc. #163]
The plaintiff, George M. Leniart (“plaintiff”), brings this
action against the defendants1 pursuant to 42 U.S.C. §1983,
alleging, inter alia, that the defendants interfered with his
attorney-client privileged material, both as a pre-trial
detainee and as a convicted prisoner, in violation of the First,
Fifth, Sixth, and Fourteenth Amendments to the United States
Constitution. [Doc. #80].
Pending before the Court is defendants‟ Motion for Summary
Judgment. [Doc. #163].2 Plaintiff has filed a Memorandum of Law
in Opposition to defendants‟ motion [Doc. #174], to which
1

The named defendants are: Warden Peter Murphy, John Patz,
Captain Salius, Ronald Black, Karen Martucci, Allen M. Coachman,
John Flemming, Antonio Villarini, Thomas C. Morrarty, C.J.
Yother, C.T.U. Bowen, J. Lawrie, and Sarah Skribiski
(hereinafter collectively referred to as the “defendants”). See
Doc. #80 at 2-3. The defendants are all employees, or former
employees, of the Department of Correction.
2

With the permission of the Court, on July 27, 2015, defendants
filed a supplemental memorandum of law and Rule 56(a)(1)
statement, in support of the motion for summary judgment. [Doc.
##164, 165].
1

defendants have filed a reply [Doc. #176] and supplemental reply
[Doc. #177].3 At the Court‟s direction, plaintiff filed a surreply on December 9, 2015. [Doc. ##179, 180].
For the reasons articulated below, the defendants‟ Motion
for Summary Judgment [Doc. #163] is GRANTED.
I.

Background
Plaintiff filed his complaint pro se on October 21, 2011.

[Doc. #1].4 Counsel was appointed pro bono on March 4, 2014.
[Doc. #128]. Following several amendments of his initial
pleading, plaintiff now proceeds under the operative Second
Supplemental Amended Complaint (the “Complaint”), which purports
to be verified. [Doc. #80 at 33]. The Complaint alleges five
counts, each of which implicates several of the named defendants
as identified supra. The crux of plaintiff‟s Complaint is that
his rights secured by the First, Fifth, Sixth, and Fourteenth
Amendments were violated by the various defendants when his
3

Plaintiff filed an objection to the “second, third and fourth
paragraphs [of the supplemental reply] to the extent those
paragraphs offer further arguments for the granting of summary
judgment.” [Doc. #178 at 1]. The Court OVERRULES this objection
and will consider the contested paragraphs in the supplemental
reply as the arguments set forth therein relate to defendants‟
arguments in reply that “[p]laintiff‟s affidavit is lacking in
both personal knowledge and foundation.” [Doc. #176 at 2].
4

District Judge Stefan Underhill‟s Initial Review Order disposed
of all claims against defendant “Lieutenant Kavanaugh.” [Doc.
#6]. Plaintiff later withdrew his claims against the “John Doe”
defendants. See Doc. ##73, 79. Judge Underhill also dismissed
all claims for denial of access to the courts pursuant to 28
U.S.C. §§1915A and 1915(e)(2)(B)(i). [Doc. #6].
2

handwritten “legal notes,” in which he contends he had an
expectation of “legal privacy,” were read and/or confiscated.
[Doc. #80 at 24-25]. Plaintiff also alleges that certain
defendants failed to investigate and/or act upon his
“constitutional complaints[.]” Id. at 25-27.
II.

Local Rule 56(a) Statements
Before turning to a recitation of the undisputed material

facts, the Court will address the argument raised in defendants‟
reply brief that the Court should deem certain facts admitted.
Defendants assert that plaintiff has “chosen not to offer any
evidence to controvert many facts, and instead alleges „neither
admit or deny – not material,‟” as to the following paragraphs
of defendants‟ Local Rule 56(a) Statement: 34, 35, 37, 38, 39,
78, 80, 81, 83-88, 94-96, 103, 105-09, 111-14, 117-26, 133-35,
137-39, 141-43, 149-61, 164-78, 189, 192-95, 197, 199, 220-22,
225, and 227-32. [Doc. #176 at 4]. Plaintiff has not responded
to this argument.
District of Connecticut Local Civil Rule (“D. Conn. L. Civ.
R.”) 56(a)1 requires that every summary judgment motion be
accompanied by a “Local Rule 56(a)1 Statement,” setting forth in
separately numbered paragraphs “a concise statement of each
material fact as to which the moving party contends there is no
genuine issue to be tried.” D. Conn. L. Civ. R. 56(a)1. A party

3

opposing summary judgment must include with its opposition a
“Local Rule 56(a)2 Statement,”
which states in separately numbered paragraphs meeting
the
requirements
of
Local
Rule
56(a)3
and
corresponding to the paragraphs contained in the
moving party‟s Local Rule 56(a)1 Statement whether
each of the facts asserted by the moving party is
admitted or denied.
D. Conn. L. Civ. R. 56(a)2. Local Rule 56(a)3 further mandates
that
each denial in an opponent‟s Local Rule 56(a)2
Statement, must be followed by a specific citation to
(1) the affidavit of a witness competent to testify as
to the facts at trial and/or (2) evidence that would
be admissible at trial[.] ... [F]ailure to provide
specific citations to evidence in the record as
required by this Local Rule may result in the Court
deeming certain facts that are supported by the
evidence admitted[.]
D. Conn. L. Civ. R. 56(a)3 (alterations added).
Courts in this District have not hesitated to deem admitted
facts that are not appropriately denied at summary judgment. See
Carone v. Mascolo, 573 F. Supp. 2d 575, 581 (D. Conn. 2008)
(“When a party fails to appropriately deny material facts set
forth in the movant‟s Rule 56(a)(1) statement, those facts are
deemed admitted.” (quoting Knight v. Hartford Police Dep‟t, No.
3:04CV969(PCD), 2006 WL 1438649, at *4 (D. Conn. May 22,
2006))); see also Giglio v. Derman, 560 F. Supp. 2d 163, 166 (D.
Conn. 2008) (failure of Local Rule 56(a)2 statement to cite to
evidence in the record “allow[ed] the Court to deem such

4

paragraphs admitted”); Wanamaker v. Town of Westport Bd. of
Educ., No. 3:11CV1791(MPS)(WIG), 2013 WL 3816592, at *3 n.3 (D.
Conn. July 22, 2013) (“[C]ertain decisions from this District
have held that it is an improper response for a non-moving party
to respond that he or she lacks personal knowledge and can
neither admit nor deny the statement.” (citing cases)).
Accordingly,
[w]here the Plaintiff has objected to Defendant‟s
facts but has failed to support her objection with any
admissible evidence in the record, where the record
itself does not support Plaintiff‟s denials, or where
the Plaintiff has neither admitted nor denied a fact
and where the record supports such fact, those facts
are deemed to be admitted. Where a statement is not
supported by the record, the Court either notes such
or does not rely on the purported fact in its
determination.
Johnson v. Conn. Dep‟t of Admin. Servs., 972 F. Supp. 2d 223,
229 (D. Conn. 2013) (collecting cases), aff‟d, 588 F. App‟x 71
(2d Cir. 2015).
Here, plaintiff‟s response to 91 out of 232 paragraphs in
the defendants‟ Local Rule 56(a) statement is: “NEITHER ADMIT OR
DENY – NOT MATERIAL.” [Doc. #174-1, ¶¶34, 35, 37, 38, 39, 78,
80, 81, 83-88, 94-96, 103, 105-09, 111-14, 117-26, 133-35, 13739, 141-43, 149-61, 164-78, 189, 192-95, 197, 199, 220-22, 225,
and 227-32]. Because plaintiff fails to support any response to
these paragraphs with a citation to the record in compliance
with D. Conn. L. Civ. R. 56(a)3, the Court will deem admitted

5

any fact that is in fact material, which is neither admitted nor
denied, and supported by the record.
III. Legal Standard
The standards governing summary judgment are wellsettled. Summary judgment is appropriate only “if the
pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits
... show that there is no genuine issue as to any
material fact and that the moving party is entitled to
a judgment as a matter of law.” Fed. R. Civ. P.
56(c)[.]
Marvel Characters, Inc. v. Simon, 310 F.3d 280, 285-86 (2d Cir.
2002). Summary judgment is proper if, after discovery, the
nonmoving party “has failed to make a sufficient showing on an
essential element of [his] case with respect to which [he] has
the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986) (alterations added).
“The party seeking summary judgment has the burden to
demonstrate that no genuine issue of material fact exists.”5
Marvel Characters, 310 F.3d at 286. The moving party may
discharge this burden by “pointing out to the district court ...
that there is an absence of evidence to support the nonmoving
party‟s case.” Celotex Corp., 477 U.S. at 325; see also Goenaga
v. Mar. of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir.
1995) (“In moving for summary judgment against a party who will

5

A fact is “material” if it might affect the outcome of the suit
under the substantive law applicable to the case. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
6

bear the ultimate burden of proof at trial, the movant‟s burden
will be satisfied if he can point to an absence of evidence to
support an essential element of the nonmoving party‟s claim.”).
In deciding a motion for summary judgment, “[t]he court
must resolve all ambiguities and draw all inferences in favor of
the nonmoving party[.]” Aldrich v. Randolph Cent. Sch. Dist.,
963 F.2d 520, 523 (2d Cir. 1992). “If there is any evidence in
the record that could reasonably support a jury‟s verdict for
the non-moving party, summary judgment must be denied.” Am. Home
Assur. Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313,
315 (2d Cir. 2006) (internal quotation marks omitted) (quoting
Marvel, 310 F.3d at 286). However, “the mere existence of some
alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)
(emphases in original).
“In ruling on a motion for summary judgment, the district
court may rely on any material that would be admissible or
usable at trial.” Major League Baseball Props., Inc. v. Salvino,
Inc., 542 F.3d 290, 309 (2d Cir. 2008) (internal quotation marks
omitted) (quoting Azrielli v. Cohen Law Offices, 21 F.3d 512,
517 (2d Cir. 1997)). Where, as here, “a summary judgment motion
is supported or opposed by affidavits, those „affidavits shall
7

be made on personal knowledge, shall set forth such facts as
would be admissible in evidence, and shall show affirmatively
that the affiant is competent to testify to the matters stated
therein.‟” Id. at 310 (quoting Fed. R. Civ. P. 56(e)).
Therefore,
[i]n order to defeat a properly supported summary
judgment motion, the opposing party must proffer
admissible evidence that “set[s] forth specific facts”
showing a genuinely disputed factual issue that is
material under the applicable legal principles. Fed.
R. Civ. P. 56(e); see, e.g., Patterson v. County of
Oneida, 375 F.3d 206, 219 (2d Cir. 2004)[.] A party
opposing summary judgment does not show the existence
of a genuine issue of fact to be tried merely by
making assertions that are conclusory, see, e.g.,
Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir.
1996), or based on speculation, see, e.g., id.
(“Though we must accept as true the allegations of the
party defending against the summary judgment motion,
drawing all reasonable inferences in his favor, ...
conclusory statements, conjecture, or speculation by
the party resisting the motion will not defeat summary
judgment.”)[.]
Major League Baseball, 542 F.3d at 310 (alterations added).
IV.

Facts
The Court sets forth only those facts deemed necessary to

an understanding of the issues raised in, and decision rendered
on, this motion for summary judgment. The following factual
summary is based on plaintiff‟s Complaint [Doc. #80],
defendants‟ Local Rule 56(a)1 Statement of Material Facts [Doc.
#163-2] and Supplemental Local Rule 56(a)1 Statement [Doc. #1654] (collectively “Def. 56(a)1 Statement”), plaintiff‟s Local

8

Rule 56(a)2 Statement of Material Facts [Doc. #174-1] (“Pl.
56(a)2 Statement”), and accompanying affidavits, depositions and
exhibits, to the extent that they are admissible evidence. The
following factual summary, therefore, does not represent factual
findings of the Court. All facts stated below are undisputed (or
have been deemed undisputed) unless stated otherwise.
On June 22, 2010, plaintiff was sentenced in Connecticut
Superior Court, Judicial District of New London, to a term of
imprisonment of life without parole for three counts of capital
felony murder and one count of murder. [Def. 56(a)1 Statement,
¶2, Pl. 56(a)2 Statement, ¶2 (admitted)]. Plaintiff is currently
incarcerated at Cheshire Correctional Institution, where he has
been held since August 9, 2012. Id. at ¶¶1, 6. Prior to
plaintiff‟s transfer to Cheshire, he was held in the MacDougall
Walker Correctional Institution (“MWCI”), which is a
high/maximum level facility for adult males. Id. at ¶¶4, 185.
MWCI is comprised of two facilities, the Walker building and the
MacDougall building. Id. at ¶186. From April 1, 2008, until
August 11, 2010, plaintiff was housed in the Walker Building of
MWCI, and then from August 12, 2010, until August 9, 2012, in
the MacDougall building of that same facility. Id. at ¶¶4, 5.
A.

2008 Events

Defendant Antonio Villarini (“Villarini”) was working as an
Admitting and Processing (“A&P”) Officer in the Walker building
9

of MWCI on October 20, 2008, and November 17, 2008. [Def. 56(a)1
Statement, ¶8, Pl. 56(a)2 Statement, ¶8 (admitted)]. As an A&P
Officer, Villarini was responsible for processing inmates in and
out of holding cells for transportation to court. Id. at ¶11.
When Villarini processed a prisoner in the A&P area, the inmate
would be moved from one holding cell to another; if an inmate
had legal documents with him, he was not permitted to keep these
documents with him while in the holding cell. Id. at ¶¶13-14,
75. Rather, an inmate‟s legal papers were placed on a stainless
steel table outside of the holding cell, where manila envelopes
containing legal papers were searched within the view of
inmates, and inspected to ensure they did not contain any drugs,
weapons, paper clips, or other contraband. Id. at ¶¶15-16, 75.
Although an individual inmate could lose sight of his legal
materials during a strip search, the materials otherwise stayed
within the view of all inmates confined in the holding cells.
Id. at ¶16.
The following events are denied by defendants. Plaintiff
alleges that on October 20, 2008, he was brought to the A&P room
for transport to a scheduled court appearance. [Doc. #80 at
¶12]. Upon arrival to the A&P room, Villarini ordered plaintiff
to place his legal folder, which plaintiff contends was marked
“legal/confidential”, on a steel table, to which plaintiff
initially objected, but then obeyed upon receiving a direct
10

order from another officer. Id. at ¶13. Plaintiff alleges that
following a strip search, he was moved to a holding cell to
await transport, where he observed Villarini spending over
thirty minutes reading through his legal documents, making
comments about their contents, and removing newspaper clippings
and handwritten documents. Id. at ¶¶14-15, 19. Plaintiff alleges
that he was able to see these events “through a reflection in
the glass of a opposite holding cell window.” Id. at ¶20 (sic).
When plaintiff received his materials, he noticed “numerous
documents were missing” and as a result, was “unable to proceed
with critical lines of discussion” with his criminal defense
attorney, with whom he was meeting on that day. Id. at ¶¶26-27.
Plaintiff also alleges that a similar violation occurred on
November 17, 2008. Unless otherwise stated, defendants deny the
following events as alleged by plaintiff. Plaintiff alleges that
on November 17, 2008, he was “brought on another 3am[] court
trip which mirrored the last on 10-20-08.” [Doc. #80 at ¶31].
Plaintiff alleges that while awaiting transport, he watched
defendant Villarini and other officers search through his manila
envelope, which contained, among other items, a 26 page handwritten timeline containing “crucial information of facts
explaining in detail a twelve year occurrence of events critical
to [his] capitol felony arrest, and a six page outline of a
posed defense strategy[.]” Id. at ¶¶32-33. Plaintiff alleges
11

that the correctional officers, including Villarini, read these
materials and that Villarini then took the documents to a corner
office, after which plaintiff was able to see “flashes from the
photocopier.” [Doc. #80 at ¶¶34-35]. While this was happening,
plaintiff began yelling, kicking and rattling the cell door. Id.
at ¶¶35-36. Plaintiff‟s actions prompted defendant Ronald Black
to enter the A&P room and give plaintiff a direct order to stop
kicking the door. [Def. 56(a)1 Statement, ¶¶205-206, Pl. 56(a)2
Statement, ¶¶205-206 (admitted)]; [Doc. #80 at ¶37].6 Following
Black‟s direct order to plaintiff, plaintiff told Black that
Villarini was reading and making copies of his legal materials.
[Def. 56(a)1 Statement, ¶207, Pl. 56(a)2 Statement, ¶207
(admitted)]. Black followed up on this complaint with Villarini,
who denied reading or making copies of plaintiff‟s legal work.
Id. at ¶¶207-208; Doc. #80 at ¶¶38-39.
Plaintiff alleges that following this interaction with
defendant Black he was then transported to state court. [Doc.
#80 at ¶44]. The Department of Correction (“DOC”) transports
inmates using its Correctional Transportation Unit (“CTU”).
6

At the time of the events in question, defendant Black worked
as a correctional lieutenant in MWCI, with his duties including
supervising staff and managing the housing units, the A&P area,
inmate work detail, and the overall operations of the facility.
[Def. 56(a)1 Statement, ¶204, Pl. 56(a)2 Statement, ¶204
(admitted)]. Defendant Black has worked for the Department of
Correction since 2000, previously as a correctional officer, and
has been assigned to MWCI for his entire tenure. Id. at ¶¶203204.
12

[Def. 56(a)1 Statement, ¶40, Pl. 56(a)2 Statement, ¶40
(admitted)]. When transporting an inmate from MWCI to New London
Superior Court, DOC procedure was to transport the inmate first
to the “hub” at Corrigan-Radgowski CC (“Corrigan”) in
Uncasville, Connecticut, where the inmate would then await his
next ride with the judicial marshals to the New London Superior
Court. Id. at ¶¶41-42. Upon return from New London Superior
Court, the judicial marshals would transport plaintiff to
Corrigan, where plaintiff and his property were admitted and
processed while awaiting CTU transport from Corrigan to MWCI.
Id. at ¶43. Because plaintiff was housed in the Walker building
of MWCI, CTU would drop plaintiff off directly at that building.
Id. at ¶44. Plaintiff alleges that when he arrived at Corrigan
during the course of his transport on November 17, 2008, he
noticed documents missing from his legal materials, including
his handwritten documents. [Doc. #80 at ¶45]. Defendants deny
this allegation.
Defendant John Bowen has worked with the DOC since 2001 as
a correctional officer. [Def. 56(a)1 Statement, ¶46, Pl. 56(a)2
Statement, ¶46 (admitted)]. In 2008, Bowen worked as a
correctional officer assigned to the CTU, and would typically
transport inmates in state vehicles to and from correctional
facilities and the inmates‟ court appearances. Id. at ¶¶47-48.
At his deposition, Bowen explained that he first drops inmates
13

off at the Walker building at MWCI, and then proceeds to the
MacDougall building, where he finishes his transport route and
refuels the transport van. Id. at ¶53. Bowen stated it would be
“silly” to first go to the MacDougall building, and then to
Walker, only to double back to MacDougall to refuel the van. Id.
at ¶54.
Defendants deny the following allegations. Plaintiff
alleges that on November 17, 2008, upon his return to MWCI, he
was the last inmate to be dropped off and was alone with
defendant Bowen, when Bowen stopped the vehicle between the two
buildings comprising MWCI, and stated to plaintiff that “we are
all around you, that was a nice little story you wrote for your
lawyer[.]” [Doc. #80 at ¶¶48-49]. Plaintiff further alleges that
Bowen told plaintiff he had given a copy of plaintiff‟s
handwritten documents “to a family member that was a detective
at Troop E who was investigating plaintiff‟s case and if there
was any more „tapes‟, that he wanted to trade for his paperwork,
„because we are going to do what we have to do to keep you in
here.‟” Id. at ¶¶49-50.
Attached to the Affidavit of defendant Bowen is a
Correctional Transportation Unit Daily Route Schedule &
Equipment Inventory for November 17, 2008. [Doc. #163-7, Bowen
Aff., Ex. A]. On this date, Bowen left Corrigan at 8:04PM, with
three inmates, one of whom was plaintiff. Id.; [Def. 56(a)1
14

Statement, ¶57, Pl. 56(a)2 Statement, ¶57 (admitted)]. Bowen
then drove to the Hartford jail, arriving at 8:47PM. [Doc. #175,
Bowen Depo., 32:24-33:4; Doc. #163-7, Bowen Aff., Ex. A]. Bowen
dropped off one inmate, picked up two, and departed the Hartford
jail with four inmates. [Doc. #175, Bowen Depo., 33:5-11; Doc.
#163-7, Bowen Aff., Ex. A]. Bowen then departed for MWCI, and
dropped off one inmate, plaintiff, at the Walker building at
9:28PM. [Doc. #175, Bowen Depo., 33:13-17, 33:24-34:5; Doc.
#163-7, Bowen Aff., Ex. A; Doc. #163, Bowen Aff., at ¶14]. Bowen
next departed the Walker building at 9:36PM, and proceeded to
the MacDougall building where he dropped off the remaining three
inmates at 9:38PM. [Doc. #175, Bowen Depo., 33:21-23; Doc. #1637, Bowen Aff., Ex. A; Doc. #163, Bowen Aff., at ¶15]. Bowen
departed MacDougall at 9:47PM, arriving at “base” at 10:00PM
that evening. [Doc. #163-7, Bowen Aff., Ex. A; Doc. #163, Bowen
Aff., at ¶16].7

7

The Court adopts defendant Bowen‟s version of the November 17,
2008, transport, for purposes of this motion. “When opposing
parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could
believe it, a court should not adopt that version of the facts
for purposes of a ruling on a motion for summary judgment.”
Scott v. Harris, 550 U.S. 372, 380 (2007). The plaintiff‟s
version of events is blatantly contradicted by the documentary
evidence. Specifically, the record includes contemporaneous
documentation of the route and timeline of Bowen‟s travels on
November 17, 2008, as well as a logical explanation for that
route in Bowen‟s testimony. [Doc. #163-7 at 7; Def. 56(a)1
Statement, ¶¶53-54, Pl. 56(a)2 Statement, ¶¶53-54 (admitted)].
Plaintiff has made no claim that the records are inaccurate or
15

B.

2012 Events

Defendant Sara8 Skribiski (“Skribiski”) has worked at the
DOC in various roles since 2003. [Def. 56(a)1 Statement, ¶162,
Pl. 56(a)2 Statement, ¶162 (admitted)]. Skribiski is currently
employed by the DOC as a correctional counselor. Id. Skribiski‟s
duties in this role include, among others: assisting inmates in
making legal telephone calls; distributing legal mail; unit
classification; and assuring that inmates‟ requests are answered
in accordance with DOC policy and procedure. Id. at ¶163.
In 2012, Skribiski was assigned to the H-1 housing unit at
MWCI, and plaintiff was assigned to her caseload. Id. Plaintiff
alleges that Skribiski read his outgoing privileged legal mail.
[Doc. #80, at ¶105; Doc. #174-4, Leniart Aff., at ¶¶31-32].
Although not alleged in his Complaint, plaintiff also avers that

falsified; he has not responded to the records at all. Where a
plaintiff relies in opposition to summary judgment “almost
entirely on [his] own testimony, in the form of an affidavit and
excerpts from [his] depositions[,]” and the moving party
produces “competent and persuasive evidence, including
contemporaneous” documentation, summary judgment is not defeated
by the plaintiff‟s unsupported claims. Rojas v. Roman Catholic
Diocese of Rochester, 660 F.3d 98, 105 (2d Cir. 2011); see also
Zellner v. Summerlin, 494 F.3d 344, 371 (2d Cir. 2007)
(“Incontrovertible evidence ... whose accuracy is unchallenged,
should be credited by the court on” a motion for summary
judgment).
8

Plaintiff spells this defendant‟s first name “Sarah” in the
Complaint. However, all of the documentation provided by
defendants, including defendant Skribiski‟s deposition, spells
her name “Sara.” The Court assumes this is the correct spelling.
16

Skribiski read his incoming privileged legal mail. [Doc. #174-4,
Leniart Aff., at ¶30]. Defendants deny these allegations.
V.

Discussion
A.

Unopposed Claims

Because plaintiff‟s memorandum in opposition to the motion
for summary judgment limited its arguments to Sixth Amendment
claims against defendants Villarini, Bowen, Black and Skribiski,
and a First Amendment claim against Skirbiski, the Court ordered
that plaintiff file a sur-reply clarifying whether he intended
to pursue only those claims. [Doc. #179]. In compliance with
this order, plaintiff filed a sur-reply stating, inter alia:
The Plaintiff argues that there remain genuine issues
of material fact regarding the allegations of the
Second Supplemental Complaint that give rise to the
Plaintiff‟s claims of violations of his rights under
the First and Sixth Amendments against defendants
Villarini, Bowen, Black and Skribiski.
As to the remaining defendants and claims, the
plaintiff does not oppose the Defendants‟ Motion for
Summary Judgment to the extent of the allegations of
constitutional violations presented in the Second
Supplemental Complaint.
[Doc. #180 at 1-2].
Therefore, based on plaintiff‟s representations, and absent
objection, the Court GRANTS summary judgment in favor of the
following defendants on the following claims:

17

Antonio Villarini with respect to the claims based on the
Fifth and Fourteenth Amendments alleged in Counts 1 and 2 of the
Complaint;
John Patz as to all claims alleged in Counts 1 and 2 of the
Complaint;
John Bowen with respect to the claims based on the Fifth
and Fourteenth Amendments alleged in Count 2 of the Complaint;
David Yother as to all claims alleged in Count 3 of the
Complaint;
Thomas Morrarty as to all claims alleged in Count 3 of the
Complaint;
Karen Martucci as to all claims alleged in Count 4 of the
Complaint;
John Flemming as to all claims alleged in Count 4 of the
Complaint;
Scott Salius as to all claims alleged in Count 4 of the
Complaint;
Jay Lawrie as to all claims alleged in Count 5 of the
Complaint;
Sara Skribiski with respect to the claims based on the
Fifth and Fourteenth Amendments alleged in Count 5 of the
Complaint;
Peter Murphy as to all claims alleged in Counts 1, 2 and 4
of the Complaint;
18

Ronald Black as to the claims based on the Fifth and
Fourteenth Amendments alleged in Count 2 of the Complaint; and
Allen Coachman as to all claims alleged in Count 4 of the
Complaint.
Accordingly, the following claims remain ripe for
adjudication: Count 1 alleging Sixth Amendment claims against
defendant Villarini; Count 2 alleging Sixth Amendment claims
against defendants Villarini, Black and Bowen; and Count 5
alleging First and Sixth Amendment claims against defendant
Skribiski. The Court will address each remaining claim in turn.
B.

Sixth Amendment Claims –- Villarini, Black & Bowen

Plaintiff alleges in Counts One and Two that his Sixth
Amendment right to counsel was violated by defendants Villarini,
Black and Bowen when they read, copied and/or shared materials
he had prepared that he deems “legal” materials. Defendants
argue that plaintiff has failed to state a claim for a Sixth
Amendment violation, and further, that plaintiff has no right to
privacy in his legal papers.
“The right of the accused „[i]n all criminal prosecutions
... to have the Assistance of Counsel for his defence‟ is a
direct right, grounded squarely in the text of the
Constitution.” Benjamin v. Fraser, 264 F.3d 175, 185 (2d Cir.
2001) (quoting U.S. Const. amend. VI). “[I]n the context of the
right to counsel, unreasonable interference with the accused
19

person‟s ability to consult counsel is itself an impairment of
the right.” Id. Thus, “[i]n considering burdens on the Sixth
Amendment right to counsel,” the Second Circuit has not
“required that an incarcerated plaintiff demonstrate „actual
injury‟ in order to have standing.” Id. at 186 (collecting
cases). Plaintiff contends that the actions of the defendants
unlawfully obstructed his right to the assistance of counsel.
Defendants contend that plaintiff‟s section 1983 claims
implicating the Sixth Amendment are barred by Heck v. Humphrey,
512 U.S. 477 (1994), as plaintiff‟s claims, if proven, would
necessarily undermine the validity of his criminal conviction.
In Heck, the Supreme Court held:
[I]n
order
to
recover
damages
for
allegedly
unconstitutional conviction or imprisonment, or for
other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a § 1983
plaintiff must prove that the conviction or sentence
has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal
authorized to make such determination, or called into
question by a federal court‟s issuance of a writ of
habeas corpus, 28 U.S.C. § 2254. A claim for damages
bearing that relationship to a conviction or sentence
that has not been so invalidated is not cognizable
under § 1983. Thus, when a state prisoner seeks
damages in a § 1983 suit, the district court must
consider whether a judgment in favor of the plaintiff
would
necessarily
imply
the
invalidity
of
his
conviction or sentence; if it would, the complaint
must be dismissed unless the plaintiff can demonstrate
that the conviction or sentence has already been
invalidated.
Id. at 486-87 (footnote omitted).

20

Before reaching the Heck analysis, however, the Court first
inquires as to whether there is sufficient evidence in the
record to support a claim that the defendants‟ actions in fact
obstructed plaintiff‟s right to counsel. While no showing of
prejudice may be required, a showing that there was some actual
infringement of the right to counsel is essential. See Goenaga,
51 F.3d at 18 (summary judgment may be granted where the movant
defendant “can point to an absence of evidence to support an
essential element of” plaintiff‟s claim).
Plaintiff‟s opposition to the motion for summary judgment
asserts that an invasion of the attorney-client privilege
equates, per se, to a violation of plaintiff‟s Sixth Amendment
right to counsel. [Doc. #174 at 8-9]. He cites no authority in
support of this proposition, and the Court has found none. It is
true that “government interference with the confidential
relationship between a defendant and his counsel may implicate
Sixth Amendment rights.” Clutchette v. Rushen, 770 F.2d 1469,
1471 (9th Cir. 1985). But the plaintiff must show more than the
mere breach of the privilege to raise a viable constitutional
claim. “Standing alone, the attorney-client privilege is merely
a rule of evidence; it has not yet been held a constitutional
right.” Id. (citing Maness v. Meyers, 419 U.S. 449, 466 n.15
(1975); Beckler v. Superior Court, 568 F.2d 661, 662 (9th Cir.
1978)). Here, there is no indication in the Complaint or in any
21

of the materials submitted by the parties of how the alleged
reading of plaintiff‟s legal materials actually obstructed his
access to counsel and thus interfered with his Sixth Amendment
rights.
The only allegation which approaches an assertion of
interference with Sixth Amendment rights draws a connection that
is tenuous, at best. Plaintiff claims that the theft of some of
his handwritten materials made it difficult for him to remember
items he wished to discuss with his attorney. [Doc. #174-3,
Leniart Depo., 51:22-52:11; Doc. #80 at ¶27]. Although the
Complaint describes the missing documents as “irreplaceable,”
[Doc. #80 at ¶140], plaintiff testified that the documents were
in fact his own notes based on his own thoughts, ideas and
recollections, and a few newspaper clippings. [Doc. #174-3,
Leniart Depo., 32:8-21, 43:18-44:1]. There is no explanation of
why these materials could not be recreated if necessary. The
Court has been unable to identify any case in which the seizure
or inspection of a criminal defendant‟s own notes, intended to
assist his discussions with counsel but not for delivery to
counsel, was found to constitute a violation of the right to
counsel.
This case raises none of the usual bases for a finding of
interference with a pretrial detainee‟s right to counsel. There
is no allegation that plaintiff was refused meetings with his
22

counsel or counsel‟s representative. Cf. Smith v. Coughlin, 748
F.2d 783, 789 (2d Cir. 1984) (finding that a prison ban on all
visits by paralegals denied pre-trial detainee the effective
assistance of counsel). There is no allegation that plaintiff‟s
mail to his attorney was censored, or not sent out at all. Cf.
Washington v. James, 782 F.2d 1134 (2d Cir. 1986) (finding
plaintiff stated a claim for Sixth Amendment violation where a
letter from him to his counsel was intercepted and retained by
prison officials). There is no allegation against these
defendants of deprivation of a reasonable opportunity for legal
calls. Cf. Tucker v. Randall, 948 F.2d 388, 390-91 (7th Cir.
1991) (noting that “Sixth Amendment right to counsel would be
implicated if plaintiff was not allowed to talk to his lawyer”
for days at a time). In fact, plaintiff testified that his
attorney never visited him at the facility [Doc. #174-3, Leniart
Depo., 15:25-16:17], spoke to him on the phone only once or
twice, id. at 18:6-19, and never responded to his letters, id.
at 52:22-24, but that the lack of communication was due to his
attorney being “very busy,” rather than to any conduct by the
defendants or the facility. Id. at 19:3-12.
The Court therefore finds that plaintiff‟s allegations do
not suffice to state a claim for violation of his Sixth
Amendment right to confer with counsel.

23

Even if the plaintiff had stated a viable claim, however,
this action would be barred by Heck. The primary focus of
plaintiff‟s Complaint is the alleged use of his handwritten
materials to prejudice him in the criminal proceedings and trial
against him. Plaintiff alleges that the defendant Correction
Officers conspired with the State Police and others to falsely
accuse and convict him of the crime for which he is currently
serving a sentence. [Doc. #80 at ¶¶139(C), 141(C)]. Plaintiff
further contends that “there was a broad sweeping informal
policy and daily procedure at Walker CI ... by correctional
intelligence in collusion with law enforcement efforts to gain
strategy information to prosecute weak cases.” [Doc. #80 at
¶30]. Plaintiff testified that he believed the DOC and the State
Police to “have a working relationship, and they share
information.” [Doc. #174-3, Leniart Depo., 57:21-25].
In sum, plaintiff alleges that the defendants read, copied
and shared his handwritten notes regarding legal strategy and
other legal materials as part of a conspiracy with the
investigating officers to influence his state criminal case.
Plaintiff testified: “They were setting me up, basically.” Id.
at 60:10.9 If plaintiff were to succeed in proving these claims

9

When asked to provide the names of the correctional officers
that were involved in “setting him up,” plaintiff stated: “The
correctional –- all of them.” [Doc. #174-3, Leniart Depo., 80:911].
24

in this civil case, he would be proving at the same time that
his state prosecution and conviction were infected by police
misconduct and collusion. Such a result “would necessarily imply
the invalidity of his conviction or sentence,” Heck, 512 U.S. at
487, and thus these claims are barred by Heck.
Plaintiff‟s counsel is correct that nominal damages can be
available for violation of the Sixth Amendment right to counsel
where no prejudice is shown. See Doc. #174 at 8. A nominal
violation is not the allegation here, however. Here, there are
allegations of significant prejudice. Here, plaintiff clearly
and strongly asserts that the actions of Villarini, Black and
Bowen were part of a concerted effort, in collusion with a State
Police officer and others, to deny plaintiff a fair trial in
state court and in fact to “set [him] up” for a murder
conviction. Given that plaintiff was convicted and sentenced to
a term of life imprisonment without parole, his allegations
necessarily suggest that the conviction was illegally obtained.
Were the Court to find that defendants read, shared and/or
confiscated plaintiff‟s legal materials as part of a conspiracy
to frame him for a crime he did not commit, that finding would
necessarily undermine plaintiff‟s state court criminal
conviction. See, e.g., Zarro v. Spitzer, 274 F. App‟x 31, 34-35
(2d Cir. 2008) (“[A] ruling in Plaintiff‟s favor as to Counts 2
and 7 [accusing defendants of interfering with plaintiff‟s
25

ability to pay attorney‟s fees in his criminal case], which
raise questions about Plaintiff‟s Sixth Amendment right to
counsel, and Counts 4 and 8, which accuse the defendants of
tampering with evidence and intimidating a witness, would also
implicate the validity of his conviction.” (alterations added)).
This is precisely the scenario prohibited by Heck.
Plaintiff relies on two cases to support his arguments in
opposition to defendants‟ motion as it concerns these three
defendants. Plaintiff cites to Prater v. City of Philadelphia,
Civ. No. 11CV1618, 2015 WL 3456659, at *5 (E.D. Pa. June 1,
2015), an unpublished District Court decision, for the
proposition that “nominal damages are available even where no
actual injury occurs, e.g., where interference with the right to
assistance of counsel does not result in a wrongful conviction.”
[Doc. #174 at 8]. Prater is inapposite. As noted, plaintiff here
contends that the alleged interference with his right to counsel
did result in a wrongful conviction. Further, the allegations in
Prater were of actual denials of contact with counsel by way of
restricting which attorneys could be placed on call lists and
throwing away legal mail rather than delivering it. See Prater,
2015 WL 3456659, at *4.
Plaintiff‟s reliance on the Ninth Circuit case of Nordstrom
v. Ryan, 762 F.3d 903 (9th Cir. 2014), also misses the mark. The
plaintiff in Nordstrom did not seek money damages, but rather to
26

“enjoin[] the continuation of an unconstitutional practice[;]”
namely the correctional facility‟s practice of reading inmate
outgoing legal mail. Nordstrom, 762 F.3d at 907, 911. Indeed,
the Ninth Circuit explicitly recognized that plaintiff was not
challenging “a conviction following an improper intrusion into
the attorney-client relationship[.]” Id. at 911. Conversely,
plaintiff here does not challenge any alleged practice as a
matter of principle, but rather claims that improper intrusion
into the attorney-client privilege caused him prejudice
including the “fabrication and prosecution of a weak criminal
case” against him, [Doc. #80 at ¶139(C)], for which he should be
awarded money damages. Accordingly, plaintiff‟s reliance on
Nordstrom is misplaced.
Given that plaintiff‟s claims necessarily imply the
invalidity of his state conviction, in order to pursue this
case, under Heck, he “must prove that the conviction or sentence
has been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court‟s
issuance of a writ of habeas corpus.” Heck, 512 U.S. at 487.
Defendants represent, and plaintiff does not dispute, that
plaintiff in fact withdrew his habeas petition against his
criminal defense attorney on the eve of his habeas trial. See

27

Doc. #163-1 at 17.10 The record provides no evidence that
plaintiff‟s conviction has been invalidated in any way.
Accordingly, the Court finds that Heck bars plaintiff from
litigating Counts 1 and 2 of the Complaint, and therefore GRANTS
defendants‟ motion for summary judgment on Counts 1 and 2 of the
Complaint as to defendants Villarini, Black and Bowen.
C.

Sixth Amendment Claims -- Skribiski

Plaintiff‟s Complaint, which he filed pro se before the
appointment of pro bono counsel, specifically alleges a Fifth
Amendment violation (among others) against defendant Skribiski.
[Doc. #80 at 31]. It does not allege a Sixth Amendment
violation. However, in his motion for summary judgment, prepared
by counsel, plaintiff alleges that Skribiski violated his First
and Sixth Amendment rights, apparently abandoning any Fifth
Amendment claim. Notably, counsel does not specifically
articulate a basis for plaintiff‟s Sixth Amendment claim against
Skribiski, but rather refers the Court to the arguments made
with respect to defendants Villarini, Black and Bowen: “The same
Sixth Amendment right to counsel protects the Plaintiff‟s legal
correspondence, discussed above[.]” [Doc. #174 at 10]. However,
neither the timing of the allegations against Skribiski, nor a

10

The Court‟s review of the online records of the Superior Court
confirms this.
28

liberal reading of plaintiff‟s Complaint, support an allegation
of a Sixth Amendment violation.
“The Sixth Amendment right to counsel applies only to
„critical stages‟ of a criminal prosecution.” Meadows v.
Kuhlmann, 812 F.2d 72, 76 (2d Cir. 1987). “Unlike criminal
defendants, prisoners and indigents filing civil actions have no
constitutional right to counsel.” Mackey v. DiCaprio, 312 F.
Supp. 2d 580, 581 (S.D.N.Y. 2004) (quoting Barzey v. Daley, No.
99CV11917(BSJ)(KNF), 2000 WL 959713, at *1 (S.D.N.Y. July 11,
2000)). There is, in other words, no Sixth Amendment right to
counsel in connection with civil proceedings. See, e.g., United
States v. Coven, 662 F.2d 162, 176 (2d Cir. 1981).
Plaintiff alleges that Skribiski read his privileged legal
mail in June 2012, well after his conviction in state court.
[Doc. #80 at ¶¶104-106]. The events forming the basis of
plaintiff‟s Sixth Amendment claims against Villarini, Bowen and
Black, all occurred prior to plaintiff‟s state court conviction
and plaintiff claims that those defendants read, copied and
disseminated his legal materials as part of a conspiracy with
the investigating officers in an effort to influence his state
criminal case. The plain allegations of plaintiff‟s Complaint as
to Skribiski, however, do not implicate criminal proceedings
against him. Rather, they specifically refer to plaintiff‟s
civil lawsuits:
29

104. During mid month of June 2012, plaintiff sent out
by U.S. mail over 300 interrogatories and request
for admissions to the correctional defendants,
many of whom worked at M.W.C.I. facility where
plaintiff was housed.
105. The procedure in the H1-unit for inmate‟s to send
out over-weight legal correspondence is to hand
it to the counselor un-sealed so that it could be
inspected before it is sent out, at that time
that the interrogatories were sent out an
argument ensued regarding counselor Skribiski,
reading the privileged documents[.]
106. ... [Skribiski] threatened plaintiff that “she
could fuck everything up regarding plaintiff‟s
civil action against other staff members[.]”
...
147. The defendant‟s were recklessly indifferent to
the plaintiff‟s rights secured and protected by
the
First
Amendment
to
the
United
States
Constitution, in one or more of the following
ways:
(A)

In that, defendant Skribiski ... interfered
with a federal civil action[.]

[Doc. #80 at ¶¶104-106, 147 (sic) (alterations added)].
Plaintiff fails to allege any facts implicating his Sixth
Amendment right to counsel in a criminal matter with respect to
defendant Skribiski. Accordingly, the Court finds that plaintiff
“has failed to make a sufficient showing on an essential element
of [his] case with respect to which [he] has the burden of
proof.” Celotex, 477 U.S. at 323 (alterations added). Therefore,
the Court GRANTS defendants‟ motion for summary judgment as to

30

any Sixth Amendment violation alleged against defendant
Skribiski.
C.

First Amendment Claim

Plaintiff alleges that defendant Skribiski violated his
First Amendment rights by interfering with and reading his legal
mail. Defendants contend that there is no First Amendment
violation.11
“[A] prisoner‟s 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. 2003) (collecting cases). “To
establish a violation of this right, the prisoner must show that
the interference with his mail was both regular and
unjustified.” Smith v. City of New York, No. 14CV443(LTS)(KNF),
2015 WL 1433321, at *4 (S.D.N.Y. Mar. 30, 2015); see also Davis,
320 F.3d at 351 (“[A]n isolated incident of mail tampering is

11

“The Second Circuit has explained that tampering with a
prisoner‟s mail may constitute an actionable violation of § 1983
„(1) if the incidents suggested an ongoing practice of
censorship unjustified by a substantial government interest, or
(2) if the tampering unjustifiably chilled the prisoner‟s right
of access to the courts or impaired the legal representation
received.‟” Antrobus v. City of New York, No. 11CV2524(RA), 2014
WL 1285648, at *2 (S.D.N.Y. Mar. 27, 2014) (quoting Davis v.
Goord, 320 F.3d 346, 351 (2d Cir. 2003)). Because Judge
Underhill previously dismissed all claims for denial of access
to the courts, see Doc. #6, the Court interprets plaintiff‟s
First Amendment claim as limited to the first possibility. In
that regard, the Court notes that plaintiff alleges only that
his mail was read, not that it was censored.

31

usually insufficient to establish a constitutional violation.
Rather, the inmate must show that prison officials regularly and
unjustifiably interfered with the incoming legal mail.”
(internal citation and quotation marks omitted)). Because “[t]he
First Amendment protects prisoners‟ access to mail directly, ...
it is unnecessary to allege „actual injury‟ when asserting a
violation of prisoners‟ right to the free flow of mail.” Smith,
2015 WL 1433321, at *5 (internal citations and quotation marks
omitted).
Reading the allegations of the fifth count of plaintiff‟s
verified Complaint, one is hard pressed to find allegations
supporting a First Amendment claim on the basis of free flow of
mail. Instead, amidst a backdrop of sordid allegations relating
to unwanted sexual advances and retaliation, there is but one
factual allegation that defendant Skribiski read, or otherwise
interfered with, plaintiff‟s legal mail:
105. The procedure in the H-1 unit for inmate‟s to
send out over-weight legal correspondence [here, 300
interrogatories
and
request
for
admissions
in
plaintiff‟s civil action] is to hand it to the
counselor un-sealed so that it could be inspected
before it is sent out, at that time that the
interrogatories were sent out an argument ensued
regarding counsel Skribiski, reading the privileged
documents and also because plaintiff was denying this
counselor‟s advances for intimate contact.
[Doc. #80 at ¶105 (sic) (alteration added)]. Likewise,
plaintiff‟s “claims for relief” relating to the fifth count of

32

the Complaint make no claims relating to any First Amendment
right to the free flow of mail, but rather, seek relief for
Skribiski‟s alleged retaliation and impeding plaintiff‟s access
to the Courts, see id. at ¶¶147(A)-(C), claims which have either
been abandoned or dismissed by the Court. There is no mention in
the claims for relief as to Count Five of interference with
mail. See Doc. #80 at ¶¶147, 147(A), 147(B), 148. Indeed, the
Complaint suggests that plaintiff was familiar with, and did not
object to, the practice of reviewing the contents of oversized
outgoing legal mail. [Doc. #80 at ¶105].
The only source of support for what plaintiff now asserts
is a claim in Count Five that Skribiski interfered with his
legal mail in violation of his First Amendment rights, is
plaintiff‟s affidavit. There, plaintiff avers in a completely
conclusory fashion that defendant Skribiski “read” both his
outgoing and incoming legal mail “on more than ten occasions[.]”
[Doc. #174-2, Leniart Aff. at ¶¶30, 31].
Turning first to plaintiff‟s assertion in his affidavit
that defendant Skribiski read his incoming legal mail on more
than ten occasions, such statements are entirely self-serving
and not supported by any personal knowledge, or other evidence
in the record. There is no claim that plaintiff witnessed
Skribiski reading his incoming legal mail or that he has any
first-hand knowledge that in fact occurred. Such allegations are
33

nowhere to be found in plaintiff‟s verified Complaint. Nor did
plaintiff testify at his deposition concerning such conduct.
The only evidence on this issue comes from defendant
Skribiski‟s own deposition, in which she testified that she
opened and inspected plaintiff‟s incoming legal mail for
contraband, but that she did not read it. [Doc. #174-5,
Skribiski Depo., 13:12-14:7]. Accordingly, plaintiff‟s affidavit
offering nothing more than conclusory statements that Skribiski
read his incoming legal mail on more than ten occasions carries
no weight. “As the Supreme Court has held, a self-serving
affidavit that merely reiterates conclusory allegations in
affidavit form is insufficient to preclude summary judgment, and
„it will not do to “presume” the missing facts because without
them the affidavits would not establish the injury that they
generally allege.‟” United Magazine Co. v. Murdoch Magazines
Distribution, Inc., 393 F. Supp. 2d 199, 211 (S.D.N.Y. 2005)
(quoting Lujan v. Nat‟l Wildlife Fed‟n, 497 U.S. 871, 888-90
(1990)), aff‟d sub nom. United Magazine Co., Inc. v. Curtis
Circulation Co., 279 F. App‟x 14 (2d Cir. 2008).
With respect to plaintiff‟s outgoing legal mail, Skribiski
similarly testified that she inspected, as opposed to read,
plaintiff‟s outgoing legal mail. [Doc. #174-5, Skribiski Depo.,
14:9-22]. Specifically, Skribiski stated that she “[t]humbed
through [plaintiff‟s outgoing legal mail] and made sure there
34

was no contraband going out for safety.” Id. at 14:11-12
(alterations added). Plaintiff‟s Complaint, as noted, alleges
only one instance of Skribiski reading his outgoing privileged
mail. See Doc. #80 at ¶105. Only plaintiff‟s affidavit claims
that Skribiski read his mail “[o]n more than ten occasions[.]”
[Doc. #174-2, Leniart Aff. at ¶31]. Again, the affidavit is
entirely self-serving and not supported by any claim of personal
knowledge, or other evidence in the record. Further, plaintiff
did not testify at his deposition concerning any such conduct.12
“[A] party may not create an issue of fact by submitting an
affidavit in opposition to a summary judgment motion that, by
omission or addition, contradicts the affiant‟s previous
deposition testimony.” Hayes v. New York City Dep‟t of Corr., 84
F.3d 614, 619 (2d Cir. 1996) (collecting cases)).
Even if the Court credits plaintiff‟s allegation in the
Complaint that defendant Skribiski read his outgoing legal mail
on one occasion, that would not be sufficient to establish a
First Amendment violation. See Davis, 320 F.3d at 351 (“[A]n
isolated incident of mail tampering is usually insufficient to

12

The deposition transcript provided to the Court in support of
plaintiff‟s opposition to the motion for summary judgment
concludes with a comment by defendants‟ counsel that Count Five
had not yet been addressed, and the parties would continue the
deposition at another time. [Doc. #174-3, Leniart Depo., 116:511]. No evidence relating to any continued deposition has been
provided, though plaintiff has had numerous opportunities and
several months to supplement the record if necessary.
35

establish a constitutional violation.”). Plaintiff does not
claim that the mail Skribiski read was censored or confiscated,
only that it was read, and tampering with prisoner mail is
actionable only if there is “an ongoing practice of censorship
unjustified by a substantial government interest[.]” Id.
Plaintiff emphasizes that defendant Skribiski “violated the
Connecticut Regulations on outgoing legal mail when she required
the Plaintiff to give her his outgoing legal mail unsealed.”
[Doc. #174-2, Leniart Aff., at ¶32]. That may be true. It would
not, however, mean that a constitutional violation had
necessarily occurred. The Connecticut DOC maintains regulations
concerning the handling of inmate legal mail providing that
outgoing privileged correspondence
shall be inserted into an envelope clearly identifying
a privileged correspondence addressee as enumerated in
Subsection (e) of Section 18-81-28 and sealed by the
inmate. Outgoing privileged correspondence shall not
be opened, nor read. Each facility shall provide a
special
mailbox
for
unfranked
privileged
correspondence directed toward Department officials[.]
Conn. Agencies Regs.

§18-81-35 (2015) (hereinafter “DOC Reg.

18-31-35”). In her deposition, defendant Skribiski admitted that
she did not follow the letter of DOC Reg. 18-81-35. However, “a
violation of State law or regulations does not automatically
rise to the level of a constitutional violation.” Gill v. Smith,
283 F. Supp. 2d 763, 777 (N.D.N.Y. 2003) (citing Young v. County
of Fulton, 160 F.3d 899, 902 (2d Cir.1998) (violation of state
36

law is not the “benchmark” for determining whether a
constitutional violation has occurred); Soto v. Walker, 44 F.3d
169, 173 (2d Cir. 1995) (state law violation does not
necessarily rise to the level of a constitutional violation));
see also Stahl York Ave. Co., LLC v. City of New York, No.
15CV2000, 2016 WL 860431, at *3 (2d Cir. Mar. 7, 2016) (“[T]he
mere violation of a state [law] does not automatically give rise
to a violation of federal Constitutional rights.” (quoting Yale
Auto Parts, Inc. v. Johnson, 758 F.2d 54, 55 (2d Cir. 1985))).
Indeed, the Second Circuit has upheld a New York Department
of Correction policy, on what appears to be First and Sixth
Amendment grounds, permitting precisely the type of inspection
conducted by Skribiski. See Wilkinson v. Skinner, 462 F.2d 670
(2d Cir. 1972). The policy approved there provided that outgoing
“special correspondence,” including legal mail, “may be examined
in the presence of the prisoner to insure absence of contraband
prior to mailing but shall not be read or censored.” Id. at 672
n.3. The Court concluded:
Clearly
the
regulation
forbids
examination
or
censorship of the content of such correspondence, even
while it permits inspection for contraband, in the
presence of the detainee. Such a provision adequately
protects the sixth amendment right of detainees to
effective assistance of counsel and precludes the
official censorship or the reading that may so
adversely affect the [] inmate‟s free exercise of the
right to consult with counsel.
Id. at 672.
37

In response to a motion for summary judgment, the nonmoving
party “must offer some hard evidence showing that its version of
the events is not wholly fanciful.” D‟Amico v. City of New York,
132 F.3d 145, 149 (2d Cir. 1998). This plaintiff has failed to
do. Plaintiff‟s allegations do not establish a viable First
Amendment claim against Skribiski. Therefore, the Court GRANTS
defendants‟ motion for summary judgment as to any claimed First
Amendment violation against defendant Skribiski.
VI.

Conclusion
Therefore, for the reasons stated, defendants‟ Motion for

Summary Judgment [Doc. #163] is GRANTED. The Clerk of the Court
is directed to enter judgment in favor of the defendants.
SO ORDERED at New Haven, Connecticut, this 31st day of
March 2016.
_____/s/_____________________
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

38