Ford v. Fischer et al
Filing
85
DECISION AND ORDER: ORDERED that 82 Report-Recommendation is MODIFIED; Defendants' 74 motion for summary judgment is GRANTED; and the complaint is DISMISSED. Signed by Judge David N. Hurd on 10/2/12. {order served via regular mail on plaintiff}(nas)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------COREY FORD,
Plaintiff,
-v-
9:09-cv-723
(DNH/ATB)
JOSEPH T. SMITH, Superintendent/1st
Deputy Superintendent, Shawangunk
Correctional Facility; and JOHN MALY, Deputy
Superintendent of Security, Shawagunk
Correctional Facility,
Defendants.
-------------------------------APPEARANCES:
OF COUNSEL:
COREY FORD, Pro Se
95-A-8605
Shawangunk Correctional Facility
P.O. Box 700
Wallkill, NY 12584
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
Attorney for Defendants
The Capitol
Albany, NY12224
BRIAN J. O'DONNELL, ESQ.
Ass't Attorney General
DAVID N. HURD
United States District Judge
DECISION and ORDER
Plaintiff brought this civil rights action pursuant to 42 U.S.C. § 1983. On August 7,
2012, the Honorable Andrew T. Baxter, United States Magistrate Judge, advised, by Report-
Recommendation, that defendants' motion for summary judgment be denied as to plaintiff's
First Amendment claims based on interference with his general mail between January 2008
and March 2009, and granted as to all other remaining claims. Both parties timely filed
objections to the Report-Recommendation.
When reviewing a Report-Recommendation, a court "may accept, reject, or modify,
in whole or in part, the findings or recommendations made by the magistrate judge." 28
U.S.C. § 636(b)(1); Fed. R Civ. P. 72(b). A court must make "'a de novo determination of
those portions of the report or specified proposed findings or recommendations to which
objection is made.'" United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir.1997) (quoting
§ 636(b)(1)).
Specifically, defendants object to Magistrate Judge Baxter's conclusion that
"[w]ithout more specific documentation or evidence, an issue of fact exists as to whether
good cause existed for the continuing mail watch of plaintiff's general mail, at least after
January 2008." Dkt. No. 82, at 13. After a de novo review of both parties' objections to the
Report-Recommendation and review of plaintiff's First Amendment claims based on
interference with his general mail between January 2008 and March 2009, it is found that
defendants had good cause to conduct the mail watch between January 2008 and March
2009. This conclusion is based on the following: good cause for a mail watch leading into
2006 as established in Ford v. Phillips, No. 05 Civ. 6646, 2007 WL 946703, at *14–15
(S.D.N.Y. Mar. 27, 2007)1; plaintiff's disciplinary history while in the Special Housing Unit
1
In addition to the security concerns which prompted the commencement of the initial mail watch
in 2004, in or around 2006 prison officials confiscated at least one letter that was relevant to the prison's
investigation of plaintiff's assault against a correctional officer, and one letter through which plaintiff
attempted to influence a witness in his trial on those charges.
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since 2004, including prior correspondence violations; and the testimony of defendants Maly
and Smith that plaintiff continued to violate correspondence rules throughout 2008 and 2009.
See Maly Aff., Dkt. No. 74–10, ¶¶ 6–13, 15–17, 19–26; Smith Aff., Dkt. No. 74–3, ¶¶ 5–9.
Defendants have satisfied their burden to demonstrate a legitimate penological interest in
maintaining the safety, security, and order in Shawangunk Correctional Facility, and have
also shown that they had good cause to intercept plaintiff's mail. Accordingly, plaintiff cannot
show that the interference with his mail was greater than necessary to the protection of
defendants' asserted interests, and thus he cannot sustain his First Amendment claim.
After a de novo review of all objections, including those asserted by plaintiff and not
discussed herein, Judge Baxter's August 7, 2012, Report-Recommendation will be modified
to reflect that defendants' motion for summary judgment will be granted in its entirety and the
complaint will be dismissed.
Therefore, it is
ORDERED that
1. The Report-Recommendation is MODIFIED;
2. Defendants' motion for summary judgment is GRANTED; and
3. The complaint is DISMISSED.
IT IS SO ORDERED.
Dated: October 2, 2012
Utica, New York.
-3-
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