Williams v. Lane

Filing 96

ORDER adopting 92 Report and Recommendations; granting 57 Motion for Summary Judgment and dismissing this action. Signed by Judge Brenda K. Sannes on 8/15/16 (served on plaintiff via regular mail). (rjb, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________________
WONDER WILLIAMS,
Plaintiff,
v.
9:13-CV-0965 (BKS/DJS)
CORRECTIONAL OFFICER LANE, et al.,
Defendants.
________________________________________________
Appearances:
Wonder Williams
10-A-0102
Five Points Correctional Facility
Caller Box 119
Romulus, NY 14541
Plaintiff, pro se
Keith J. Starlin, AAG
Hon. Eric T. Schneiderman
Office of New York State Attorney General
The Capitol
Albany, NY 12224
Attorney for Defendants
Hon. Brenda K. Sannes, U. S. District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se Wonder Williams brought this action against defendants under 42 U.S.C.
§ 1983 asserting a First Amendment claim arising out of the alleged interference with his mail
while he was incarcerated in the Special Housing Unit (SHU) at the Auburn Correctional

1

Facility. Dkt. No. 12. Plaintiff alleges that defendant Correctional Officer Lane withheld
Plaintiff’s incoming mail and that Plaintiff complained to defendants Captain Chuttey and
Captain McCarthy who did not respond to his complaints. Dkt. No. 12, pp. 1-7.
Defendants filed a motion for summary judgment on October 16, 2015. Dkt. No. 57.
Plaintiff filed a response in opposition (Dkt. Nos. 64 and 80) and Defendants filed a reply (Dkt.
No. 82). This matter was assigned to United States Magistrate Judge Daniel J. Stewart who, on
June 14, 2016, issued a Report-Recommendation and Order recommending that Defendant’s
motion for summary judgment be granted and that this action be dismissed. Dkt. No. 92, p. 11.
Magistrate Judge Stewart advised the parties that under 28 U.S.C. § 636(b)(1), they had fourteen
days within which to file written objections to the report, and that the failure to object to the
report within fourteen days would preclude appellate review. Dkt. No. 92, pp. 11-12.
Plaintiff filed a timely objection to the Report-Recommendation (Dkt. No. 93) and
Defendants have responded to the objection (Dkt. No. 94). Plaintiff has replied to the
Defendant’s response. Dkt. No. 95. For the reasons set forth below, the ReportRecommendation is adopted in its entirety.
II. Standard of Review
This Court reviews de novo those portions of the Magistrate Judge’s findings and
recommendations that have been properly preserved with a specific objection. Petersen v.
Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). Findings and
recommendations as to which there was no properly preserved objection are reviewed for clear
error. Id.

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III. Discussion
A. Standard for Summary Judgment
Under Federal Rule of Civil Procedure 56(a), summary judgment may be granted only if
all the submissions taken together “show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). The moving party bears the initial burden of demonstrating “the absence
of a genuine issue of material fact.” Celotex, 477 U.S. at 323. A fact is “material” if it “might
affect the outcome of the suit under the governing law,” and is genuinely in dispute “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Jeffreys v. City of New York,
426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson).
“When ruling on a summary judgment motion, the district court must construe the facts
in the light most favorable to the non-moving party and must resolve all ambiguities and draw all
reasonable inferences against the movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d
775, 780 (2d Cir. 2003). Still, the nonmoving party “must do more than simply show that there
is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986), and cannot rely on “mere speculation or conjecture as to the
true nature of the facts to overcome a motion for summary judgment.” Knight v. U.S. Fire Ins.
Co., 804 F.2d 9, 12 (2d Cir. 1986) (quoting Quarles v. Gen. Motors Corp., 758 F.2d 839, 840 (2d
Cir. 1985)).
Where the plaintiff proceeds pro se, the Court must read his submissions liberally and
interpret them “to raise the strongest arguments that they suggest.” McPherson v. Coombe, 174

3

F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
However, a pro se party’s “‘bald assertion,’ completely unsupported by evidence, is not
sufficient to overcome a motion for summary judgment.” Jordan v. New York, 773 F. Supp. 2d
255, 268 (N.D.N.Y. 2010) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)); see also
Wagner v. Swarts, 827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011).
B. The Report-Recommendation
As Magistrate Judge Stewart noted, in order to establish a First Amendment claim for
interference with incoming, non-legal mail an inmate “‘must show a pattern and practice of
interference that is not justified by any legitimate penological concern.’” Singleton v. Williams,
No. 12 Civ. 2021 (LGS), 2014 WL 2095024, *4, 2014 U.S. Dist. LEXIS 69181, at *9 (S.D.N.Y.
May 20, 2014) (quoting Cancel v. Goord, No. 00 Civ. 2042, 2001 WL 303713, at *6, 2001 U.S.
Dist. LEXIS, at *18-19 (S.D.N.Y. Mar. 29, 2001)) 1; see, e.g., Ahlers v. Rabinowitz, 684 F.3d 53,
65 (2d Cir. 2012) (affirming dismissal of complaint alleging interference with incoming nonlegal mail because eleven alleged instances of interference over four months could not support a
claim that interference was regular and unjustifiable). Dkt. No. 92, pp. 7-8.
In the Report-Recommendation Magistrate Judge Stewart considered what evidence
supported Plaintiff’s allegation that “for months,” whenever Lane was working, Plaintiff would
not receive his incoming mail. Dkt. No. 92, p. 8; Dkt. No. 30, p. 2. 2 Magistrate Judge Stewart
found that Plaintiff’s claim that Lane withheld his mail on dates other than the three specific
incidents alleged – May 13, September 7, and October 6, 2010 “is wholly speculative.” Dkt. No.

1

The Court has appended copies of all unreported decisions cited in this Decision for the convenience of the pro se
plaintiff.
2
Plaintiff alleges that this occurred over a six-month period, from May 2010 to October 2010. Dkt. No. 12, p. 6.

4

92, p. 8. Magistrate Judge Stewart noted that Plaintiff was “unable to specifically identify any
mail that he did not receive;” that Plaintiff acknowledged receiving mail during this period; and
that Plaintiff did not provide any evidence suggesting that the reason he did not receive mail is
because it was confiscated by Lane. Dkt. No. 92, pp. 8-9. Magistrate Judge Stewart found that
Plaintiff’s speculation that he did not receive mail whenever Lane was working was insufficient
to create an issue of fact. Dkt. No. 92, p. 9.
Magistrate Judge Stewart noted that Plaintiff, “at most” only identified three specific
incidents on which Lane allegedly interfered with Plaintiff’s mail -- May 13, September 7 and
October 6, 2010 -- and that three instances are insufficient as a matter of law to establish a
pattern or practice. Dkt. No. 92, p. 8-9. In addition, with respect to two of these dates – May 13,
2010 and September 7, 2010 – Magistrate Judge Stewart found that Plaintiff had failed to raise a
triable issue of fact that Lane interfered with his mail. Plaintiff’s tampering claim was based
upon “inadmissible hearsay statements of unidentified correctional officers” who allegedly told
Plaintiff that Lane had Plaintiff’s mail. Dkt. No. 92, p. 10. Moreover, the SHU log books
evidence that “Lane was not even on duty on either of those dates.” Dkt. No. 92, pp. 9-10.
With respect to the third date -- October 6, 2010 – Magistrate Judge Stewart noted that it
is undisputed that Lane confiscated a photograph from Plaintiff’s incoming mail. Dkt. No. 92, p.
10. Plaintiff asserts that Lane withheld other letters and photographs as well. Dkt. No. 92, p. 9.
Lane stated that he confiscated a photograph depicting nudity, in accord with DOCCS policy
which forbids personal nude photographs in order to prevent conflicts between inmates and
access by sex offenders. Dkt. No. 92, p. 10. Magistrate Judge Stewart found that Lane’s
confiscation of a photograph depicting nudity was justified by a legitimate penological interest.

5

Id. 3 Although Plaintiff denied that the photograph depicted nudity, Magistrate Judge Stewart
found that Plaintiff’s “denial is mere speculation based upon his belief that people sending him
mail knew not to send him photographs depicting nudity.” Dkt. No. 92, p. 10. Thus, even if the
three alleged incidents of mail interference were sufficient to constitute a pattern or practice,
Magistrate Judge Stewart found that Plaintiff failed to establish a genuine issue of fact to show
that his mail was confiscated on May 13 or September 7 or that Lane’s confiscation of a
photograph on October 7 was not justified by legitimate penological interests. Magistrate Judge
Stewart accordingly recommended that the Defendants’ motion for summary judgment be
granted as to Plaintiff’s claims against Lane, and that Plaintiff’s supervisory claims against
defendants Chuttey and McCarthy be dismissed because Plaintiff’s claim against Lane was
unfounded. Dkt. No. 92, p. 11.
C. Objection and Analysis
a. Lane’s Alleged Admission
Plaintiff has objected to the Report-Recommendation arguing, inter alia, that his claim of
mail interference on occasions beyond May 13, September 7 and October 6, 2010 is not “wholly
speculative” because Plaintiff presented evidence, in his sworn declaration, that Defendant Lane
admitted that he had interfered with Plaintiff’s mail for months. Dkt. No. 93, p. 3-4.
In Plaintiff’s sworn declaration, filed in opposition to the motion for summary judgment,

3

In his declaration filed in support of the motion for summary judgment Lane explained that mail sent to inmates at
the Auburn SHU “first went through and was processed by the inmate correspondence department at Auburn,” and
that incoming mail was opened by individuals in that department before it arrived at the SHU. Dkt. No. 57-10, p. 7.
Lane stated that he saw a “plainly visible photograph” of a nude woman in an already opened envelope for Williams
and that he confiscated the photograph. Lane noted that inmates work in the mail room and “the presence of
contraband in envelopes sent out from the mail room is a real possibility.” Id., p. 8. Lane stated that this was the
only occasion on which he confiscated mail from Williams. Id.

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Plaintiff stated that on October 6, 2010, after Plaintiff confronted Lane about confiscating
Plaintiff’s mail, in violation of policy and Plaintiff’s rights, Lane responded maliciously that he
“doesn’t give a fuck about that,” and that Lane
admitted that he had indeed been interfering with and depriving me of my incoming mail
numerous times for the course of months. He stated “I’ve been doing it for months” and
“I’ll do whatever I fucking want or feel like” . . . He stated that I hadn’t received any of
my incoming mail when he was working due to his interference and continued to state
that I wouldn’t receive any mail when he was working on duty.

Dkt. No. 80, pp. 6-7; see also Verified Second Amended Complaint Dkt. No. 12, pp. 5 (alleging
that Lane said “I’ve been doing it for months,” and that Plaintiff “won’t receive any mail
whenever [Lane] is working.”). Plaintiff further stated that the entire verbal exchange on
October 6, 2010 was captured in the SHU video cameras. Dkt. No. 80, p. 7. Plaintiff argues that
his sworn statement regarding Lane’s alleged admission is sufficient to raise a triable issue of
fact. Lane, on the other hand, has submitted an affidavit stating that the only mail he ever
confiscated from Plaintiff was the nude photograph. Dkt. No. 57-10, p. 8. Lane denies having
made any such admission; Lane denies telling Plaintiff that Lane was withholding his mail. Dkt.
No. 57-10, pp. 6, 8.
In response to this objection, Defendants note that Plaintiff did not describe any
admission by Lane until the Second Amended Complaint, on January 3, 2014, more than three
years after the incident, and after the Court’s December 6, 2013 Decision and Order dismissing
the previous complaint which specifically informed Plaintiff that he needed to allege a pattern
and practice of mail interference to support a mail interference claim. Dkt. No. 94, p. 2.
Defendants allege that the Court is “free to discount” this alleged admission by Lane because it is

7

“not only wholly unbelievable, it is clearly contradicted by the detailed versions of that October
6, 2010 conversation that plaintiff himself gave, in writing, on three earlier occasions, including
in two (2) sworn pleadings filed in this action.” Dkt. No. 94, p. 2. The Court notes that
Defendant’s argument is supported by the record. In Plaintiff’s October 6, 2010 grievance, and
the October 8, 2010 “add on,” he provided a detailed, almost three-page description of the
October 6th incident, which did not include any admission by Lane to any prior interference of
mail. Dkt. No. 80-2, pp. 20-23. In his original verified complaint Plaintiff’s description of the
incident does not include any admission by Lane to any prior interference of mail. Dkt. No. 1,
pp. 6-7. And Plaintiff did not describe any such admission in the lengthy description of the
incident in his verified first amended complaint. Dkt. No. 9, pp. 6-10.
Defendants also argue that even if the Court does not discount Plaintiff’s latest version of
that conversation, the alleged admission by Lane is insufficient to support a mail interference
claim because it is “wholly devoid of the details required to sufficiently support plaintiff’s mail
interference claim.” Id. Defendants note that the alleged admission “says nothing about how
many times [Lane] supposedly confiscated plaintiff’s mail, what mail he supposedly confiscated
[or] when he supposedly confiscated it.” Id.
In response, Plaintiff asserts that his claim regarding Lane’s admission has been made
“consistently throughout this case,” and that Lane’s admission would have been captured on the
SHU video from that date. Dkt. No. 95, p. 3. The only document, however, which Plaintiff cites
in support of his claim that he has consistently alleged Lane’s admission does not support his
claim. Plaintiff cites to his October 8, 2010 “add-on” to the grievance, which asserts that his
incoming mail has been confiscated “for months,” but does not describe any admission by Lane.

8

Dkt. No. 95, p. 3; see Dkt. No. 80-2, p. 23.
As a general rule, at the summary judgment stage, courts must not weigh evidence or
assess the credibility of witnesses. Scott v. Coughlin, 344 F.3d 282, 289-90 (2d Cir. 2003).
However, in the “rare circumstance where the plaintiff relies almost exclusively on his own
testimony, much of which is contradictory and incomplete, it will be impossible for a district
court to determine whether the jury could reasonably find for plaintiff, and thus whether there are
any genuine issues of material fact, without making some assessment of the plaintiff's account.”
Jeffreys, 426 F.3d at 554 (internal quotations and citations omitted). In Jeffreys, the plaintiff’s
version of events directly contradicted the account he had previously and consistently provided,
was unsupported by any other evidence, and was inconsistent with all of the other evidence in
the record. Id. at 554-55. The Second Circuit found that summary judgment for the defendants
was appropriate because “no reasonable person would undertake the suspension of disbelief
necessary to give credit to the allegations made in the complaint.” 426 F.3d at 555 (internal
marks and quotation omitted). In so ruling, the Court noted that “[i]f there is a plausible
explanation for discrepancies in a party’s testimony, the court considering a summary judgment
motion should not disregard the later testimony because of an earlier account that was
ambiguous, confusing, or simply incomplete.” 426 F.3d at 555 n.2 (citing Langman Fabrics v.
Graff Californiawear, Inc., 160 F.3d 106, 112 (2d Cir.1998)).
In this case, Plaintiff has failed to advance any plausible explanation for why he did not
include Lane’s alleged admission in his detailed descriptions of this incident, shortly after the
incident, in October 2010, and in his first two verified complaints in this case. Nevertheless,
there is no contradiction between Plaintiff’s recent version and his prior versions, and

9

considering all inferences in favor of the Plaintiff, the Court does not find that no reasonable
juror could believe Plaintiff’s recent version.
Even crediting Plaintiff’s testimony regarding Lane’s admission, however, the Court
finds that Plaintiff has failed to meet his burden of coming forward with “specific facts showing
that there is a genuine issue for trial.” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002)
(emphasis added); see Jeffreys, 426 F.3d at 554 (noting that, to defeat summary judgment “a
nonmoving party must offer some hard evidence showing that its version of the events is not
wholly fanciful”). Plaintiff has failed to provide admissible evidence of any specific instance of
mail interference beyond the incident on October 6, 2010, when Lane acknowledged confiscating
a nude photograph from Plaintiff’s mail. Beyond his general testimony that he did not always
receive the magazines to which he subscribed, Plaintiff has failed to identify any incoming mail
that he did not receive. Moreover, Lane’s alleged admission does not provide any information
regarding how many times Plaintiff’s incoming mail was confiscated, when it was confiscated,
what mail was confiscated or whether any confiscation was justified by penological interests.
Plaintiff’s speculation that had incoming mail which he did not receive because of Lane’s
interference is insufficient to raise a material issue of fact that the interference was regular or that
any interference was unjustified. See, e.g., Ahlers, 684 F.3d at 65 (“[E]leven instances over four
months does not in itself support an inference of regular interference. And the allegation that
mail was withheld is insufficient to support a claim that it was withheld unjustifiably.”)
The Court finds that there is insufficient evidence in this record from which a reasonable
juror could find that Plaintiff has established interference with his incoming non-legal mail rising
to the level of a First Amendment violation.

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b. Plaintiff’s Motion for Sanctions for Spoliation
Plaintiff also has objected to Magistrate Judge Stewart’s failure to make a
recommendation on plaintiff’s motion for spoliation of evidence sanctions. Dkt. No. 93, p. 5. In
the Report-Recommendation Magistrate Judge Stewart noted that he would not make a
recommendation on the plaintiff’s motion, which would “properly be a matter for the district
court, if this action should proceed to trial.” Dkt. No. 92, p. 10 n.3. Plaintiff argues that his
motion for spoliation “speaks directly to issues of the defendant’s repeated and gross destruction
of relevant and crucial evidence favorable to the plaintiff and his claims,” and that he was
prejudiced by the failure to resolve the issues in his motion for spoliation sanctions before the
defendants’ motion for summary judgment. Dkt. No. 93, pp. 2, 5.
“In borderline cases, an inference of spoliation, in combination with some (not
insubstantial) evidence for the plaintiff’s cause of action, can allow the plaintiff to survive
summary judgment.” Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 107 (2d Cir. 2001)
(internal quotations omitted). However, in order to establish spoliation the plaintiff must show:
“(1) that the party having control over the evidence had an obligation to preserve it at the time it
was destroyed; (2) that the records were destroyed ‘with a culpable state of mind’; and (3) that
the destroyed evidence was ‘relevant’ to the party’s claim or defense such that a reasonable trier
of fact could find that it would support that claim or defense.” Residential Funding Corp. v.
DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002) (quoting Byrnie, 243 F.3d at 107-12). A
district court has “broad discretion in crafting a proper sanction for spoliation,” West v.
Goodyear Tire and Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999), but “should impose the least
harsh sanction that can provide an adequate remedy.” Hawley v. Mphasis Corp., 302 F.R.D. 37,

11

46 (S.D.N.Y. 2014). An adverse inference is “an extreme sanction and should not be imposed
lightly.” Treppel v. Biovail Corp, 249 F.R.D. 111, 120 (S.D.N.Y. 2008).
As a preliminary matter, the Court notes that Plaintiff has failed to show how most of the
items that he alleges were destroyed by the defendants would have provided admissible evidence
germane to the issue here, i.e., to show that Lane engaged in a regular pattern and practice of
unjustified interference with Plaintiff’s mail. See Dkt. No. 79, pp. 3-4. 4 Plaintiff does assert that
the SHU video recording on October 6, 2010 would have captured Lane’s alleged verbal
admission that he had been interfering with Plaintiff’s mail for months, Dkt. No. 79, p. 3.
Although, as set forth above, even by Plaintiff’s account, Lane’s alleged admission would not
provide a material issue of fact showing the regular, unjustifiable interference with his incoming
mail, in light of this objection, the Court has considered Plaintiff’s motion for spoliation of
evidence sanctions and has reviewed Plaintiff’s motion (Dkt. No. 79), the Defendants’ response
(Dkt. No. 90), and the Plaintiff’s reply (Dkt. No. 91).
In response to Plaintiff’s motion, each of the defendants has filed a declaration stating
that he did not receive any request to preserve evidence, and that he did not receive the
preservation requests Plaintiff now claims to have submitted to various officials. Dkt. Nos. 90-2,
90-3, 90-4. Defendant Lane stated that he “immediately disposed of” the nude photograph that
he confiscated in October 2010 “as it was contraband;” it would not be used to charge the

4

For example, while Plaintiff alleges that the October 6, 2010 SHU log book would show that Lane was on duty in
the SHU on that date, this fact is undisputed. Dkt. No. 79, p. 6. Also, as Magistrate Judge Stewart noted, SHU
videotapes on May 13, 2010 and September 7, 2010 containing alleged comments by unidentified correctional
officers informing the Plaintiff that Lane had his mail would be hearsay and would not be admissible to show that
Lane interfered with Plaintiff’s mail. Dkt. No. 92, p. 10 n.3. (As noted above, Lane has submitted a declaration,
supported by records, showing that he was not even on duty on May 13, 2010 or September 7, 2010. Dkt. No. 5710, pp. 2-4).

12

Plaintiff with any violation of prison rules; and no one asked Lane to preserve the photograph.
Lane stated that he did not destroy any of the other items at issue in Plaintiff’s motion. Dkt. No.
90-2, p. 3. Defendants Chuttey and McCarthy have submitted declarations stating that they did
not destroy any of the items at issue in Plaintiff’s motion. Dkt. Nos 90-3, 90-4. Both defendants
stated that it was their usual practice to “pull” and preserve video/audio tapes when there is a
request for a tape, and that they would have done so if they had received a request from Plaintiff.
Dkt. No. 90-3, p. 3; Dkt No. 90-4, pp. 3-4. Defendant McCarthy stated that video/audio
recordings from the SHU are only preserved for fourteen days “before they are automatically
deleted/taped over.” Dkt. No. 90-4, p. 3. The Defendants note that Plaintiff’s actual grievance
“makes no mention of any request to actually preserve video/audio tapes.” Dkt. No. 90-4, p. 4;
Dkt. No 90-3, p. 3.
Based on this record, the Court finds that Plaintiff has failed to establish spoliation:
Plaintiff has failed to meet his burden of establishing that defendants had an obligation to
preserve the evidence identified in his motion and that it was destroyed with a culpable state of
mind. The Court accordingly rejects Plaintiff’s objection founded on his motion for spoliation. 5
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge Stewart’s Report-Recommendation (Dkt. No. 92) is
ADOPTED in all respects; and it is further
ORDERED that Defendants’ motion for summary judgment (Dkt. No. 57) is
GRANTED and that this action DISMISSED, and it is further

5

Plaintiff’s remaining objections are without merit. As Defendants note that there is no support for Plaintiff’s
argument that a different standard applies to photographs in incoming mail than letters or other non-legal items in
incoming mail. Dkt. No. 94, p. 1.

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ORDERED that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order in accordance with the Local Rules of the Northern District of New York.
IT IS SO ORDERED.
Dated: August 15, 2016

14

Cancel v. Goord, Not Reported in F.Supp.2d (2001)
2001 WL 303713

reasons set forth below the Defendants' motion is granted
KeyCite Yellow Flag - Negative Treatment
Distinguished by
Collins v. Artus,
N.D.N.Y.,

in part and denied in part. 1
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

1

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.

Statement of Facts 2
2
The facts set forth herein are adduced from a
liberal reading of Plaintiffs' complaint. See Graham v.
Lewinski, 848 F.2d 342, 344 (2d Cir.1998).

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

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

1

Cancel v. Goord, Not Reported in F.Supp.2d (2001)
2001 WL 303713

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.)
3

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.

*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.)
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.)
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.” 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 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 § 1983 against:
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

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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.
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.

Discussion
1. Denial of Access to Grievances and the Unlawful
Operation of the Inmate Grievance Program
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 § 139 is
dismissed with prejudice.

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

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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 Monsky v. Moraghan, 127 F.3d 243, 247 (2d
Cir.1997).
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 (2) that the outgoing envelope containing
the Family Court documents mailed on April 17, 2000 was
clearly identifiable as legal mail. 5
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.” 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)).

*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.” Brewer
v. Wilkinson, 3 F.3d 816, 820 (5th Cir.1993).
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

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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. Davidson v. Scully, 694 F.2d 50, 53
(2d Cir.1982).
*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
non-legal 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,” 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.
Rowe v. Shake, 196 F.3d 778, 782 (7th Cir.1999).
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. Washington v.
James, 782 F.2d 1134, 1139 (2d Cir.1986).
*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
6

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.

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(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.

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.
7

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.

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 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:
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.
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

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and establish fault and causation on the part of each
defendant. Alfaro Motors, Inc. v. Ward, 814 F.2d 883 (2d
Cir.1987).
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 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 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 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.

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 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.
(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.
(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.
(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.
(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.

Conclusion

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2001 WL 303713

(9) Defendants' motion to dismiss the claims against
Mazzuca, Ercole, Perez, and Erbert for lack of personal
involvement is denied.

(“ICCPR”). (Am.Compl.¶ 54, 55, 58, 60.) However,
courts have uniformly held that the ICCPR is not selfexecuting and does not give rise to a private right of action.
See Beazley v. Johnson, No. 99–41383, 2001 WL 118393,

(10) Defendants' motion to dismiss the claims against
Goord, Annucci and Jones for lack of personal
involvement is granted with prejudice.

at * 18– * 19 (5th Cir.2001) (citing additional cases).
Therefore, the Court sua sponte dismisses Plaintiffs'
claims under the ICCPR.

(11) The Court also considered Plaintiffs' claim that
Defendants' actions violated Article 14 and 17 of the
International Covenant on Civil and Political Rights

End of Document

All Citations
Not Reported in F.Supp.2d, 2001 WL 303713
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8

Singleton v. Williams, Not Reported in F.Supp.3d (2014)
2014 WL 2095024

2014 WL 2095024
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Dwayne SINGLETON, Plaintiff,
v.
Correction Officer WILLIAMS, Defendant.
No. 12 Civ. 02021(LGS).
|
Signed May 20, 2014.

OPINION AND ORDER
LORNA G. SCHOFIELD, District Judge.
*1 Dwayne Singleton, pro se, brings this action pursuant
to 42 U.S.C. § 1983 against Defendant Correction
Officer Kimberly Williams, alleging interference with his
mail during his incarceration at the George R. Vierno
Center (“GRVC”) on Rikers Island, in violation of the
First and Fourteenth Amendments. Defendant moves
for summary judgment dismissing the Complaint in its
entirety (“Motion”). Because Plaintiff has failed to adduce
sufficient evidence to permit a reasonable juror to return
a verdict in his favor, Defendant's Motion is granted.

BACKGROUND
I. Factual Background
The following facts are taken from Plaintiff's deposition,
Plaintiff's Complaint, Defendant's Statement pursuant to
Local Rule 56.1 (“56.1 Statement”) and Defendant's other
filings in support of her Motion.
This case involves Plaintiff's allegations that his mail was
stolen or withheld while he was incarcerated at GRVC,
from December 2009 to May 2010, and from September
2011 to March 2012. While at GRVC, Plaintiff drafted
letters “everyday,” usually “ten, fifteen letters in one
shot.” Plaintiff corresponded with his mother, his cousins,
an ex-girlfriend, his lawyers, a friend named “Stacy,”
whose last name and contact information is unknown
to Plaintiff, and several other women whose names he
does not recall. Plaintiff also sent letters to outpatient

programs, drug programs, magazines, and “businesses,”
including a record company and a film company.
Plaintiff received “a lot of mail” while incarcerated at
GRVC, including from his mother, the ex-girlfriend, a
social worker and other individuals. Plaintiff also received
money from his mother and his cousins on numerous
occasions. In addition to personal mail, Plaintiff received
legal mail, which was recorded in a log. Plaintiff signed
for legal mail on twelve occasions between December 2011
and March 2012.
Plaintiff suspected he was not receiving all of his mail
because he “wrote to certain people and he didn't get [any]
response back [from] ... a few girls ... [and] businesses.” In
addition, Plaintiff's friend “Stacy” told him that she had
not received any of the four or five letters Plaintiff had sent
her, and that she had sent him letters, which Plaintiff did
not receive. Plaintiff testified that no one except Stacy told
him they had sent mail that he had not received.
While Plaintiff was an inmate at GRVC, Defendant was
the primary mail officer on duty from Monday to Friday,
and frequently distributed Plaintiff's mail, usually after
lunch. When Defendant was unavailable, other correction
officers filled in and distributed mail to the inmates.
Plaintiff and Defendant offer conflicting evidence
concerning Defendant's alleged interference with
Plaintiff's mail. Plaintiff asserts that he first suspected that
Defendant was stealing his mail because she spoke to him
disrespectfully. Plaintiff testified that “[t]hings started to
get out of hand when [Plaintiff] suspected that [Defendant]
was ... messing with [his] mail.” Plaintiff observed that
Defendant was friendly with some inmates and delivered
their mail, but heard that she was “playing with” the mail
of inmates she did not like.
*2 According to Plaintiff, when he confronted her, she
“would look at [him] with the mail in her hand, and
keep walking.” On March 5, 2012, Defendant made two
statements to Plaintiff, both of which he interpreted as
admissions that she was withholding his mail. Defendant
made the statements when Plaintiff was questioning or
accusing Defendant about his mail, apparently not for
the first time, and she responded, “[y]ou keep asking me
stupid questions, you aint' getting your f*ckin' mail.”
Defendant also said “you crazy, take ya' medication, cause
you got that right, you won't be getting no f*ckin' mail

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from me.” According to Plaintiff, he could not “prove”
that Defendant was interfering with his mail until she
made these statements. Plaintiff stated that during this
exchange he was being “volatile” and “probably having
bipolar disorder.” After that incident, Plaintiff did not
recall receiving mail from Defendant again, although he
did receive mail from other correction officers. Plaintiff
was transferred out of GRVC approximately one week
after the confrontation with Defendant.
According to Defendant, near the end of Plaintiff's
incarceration at GRVC, he accused her of stealing his
mail, spit on the glass separating them, and threatened to
kill her, at which point Defendant gave Plaintiff's mail to a
different correction officer for delivery. Defendant states
that after this incident, Plaintiff would “yell and threaten
[her]” and on multiple occasions, threatened to kill her and
her family. Defendant denies withholding, tampering, or
otherwise interfering with Plaintiff's mail.

II. Procedural History
On December 19, 2013, Defendant filed her Motion,
56.1 Statement, and supporting papers, including
excerpts from Plaintiff's deposition. On January 22,
2014, Plaintiff filed his opposition to the Motion
(“Opposition”). Plaintiff's Opposition consisted of six
declaratory sentences reiterating the assertions in his
Complaint. Plaintiff filed no supporting affidavits or
other evidence, and no opposition to Defendant's 56.1
Statement. On January 29, 2014, Defendant filed her reply
to Plaintiff's Opposition. On March 17, 2014, Plaintiff
filed a “response” to Defendant's reply, asserting that he
“did overhear [Defendant] tell [him] with her own words
that she was stealing [his] mail,” and that “there are
no witnesses because it was just [Defendant] in front of
[Plaintiff's] cell.”

STANDARD
The standard for summary judgment is well established.
Summary judgment is appropriate where the record
before the court establishes that there is no “genuine
dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The
moving party bears the initial burden of informing the
court of the basis for the summary judgment motion and
identifying those portions of the record that demonstrate
the absence of a genuine dispute as to any material fact.
Fed.R.Civ.P. 56(c); see, e.g., Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986); Koch v. Town of Brattleboro, 287
F.3d 162, 165 (2d Cir.2002). The court must construe the
evidence in the light most favorable to the non-moving
party and must draw all reasonable inferences in the nonmoving party's favor. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986); In re “Agent Orange” Prod. Liab.
Litig., 517 F.3d 76, 87 (2d Cir.2008).
*3 If the non-moving party has the burden of proof
on a specific issue, the moving party may satisfy its own
initial burden by demonstrating the absence of evidence in
support of an essential element of the non-moving party's
claim. See, e.g., Celotex, 477 U.S. at 322–23; PepsiCo,
Inc. v. Coca–Cola Co., 315 F.3d 101, 105 (2d Cir.2002).
In other words, summary judgment is warranted if a
party “fails to make a showing sufficient to establish the
existence of an element essential to that party's case, and
on which that party will bear the burden of proof at trial.”
Celotex, 477 U.S. at 322.
“Although pro se plaintiffs are entitled to special latitude,
when defending against summary judgment motions,
absent a showing of concrete evidence from which a
reasonable juror could return a verdict in [the non-moving
party's] favor, summary judgment must be granted to
the moving party.” Jermosen v. Coughlin, 877 F.Supp.
864, 867 (S.D.N.Y.1999) (alteration in original) (citations
omitted) (internal quotation marks omitted). “Evidence
which is merely colorable, conclusory, speculative or
not significantly probative is insufficient to withstand
a summary judgment motion.” Id. (internal quotation
marks omitted).
Where the non-moving party fails to respond to a Rule
56.1 statement submitted by the moving party, the facts
in the moving party's Rule 56.1 statement may be deemed
admitted as a matter of law. S.D.N.Y.R. 56.1–56.2. In the
Second Circuit, however, “[c]ourts ... typically forgive a
pro se plaintiff's failure to file a Local Rule 56.1 Statement,
and generally conduct their own independent review of
the record.” Lloyd v. Holder, No. 11 Civ. 3154, 2013 WL
6667531, at *5 (S.D.N.Y. Dec. 17, 2013).

DISCUSSION
The Complaint alleges a violation of “federal laws,”
including the First Amendment to the Constitution and
“Section 1309 of the U.S. Postal Code” 1 on account
of Defendant “stealing” “personal mail ... business mail

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and more,” and asserts that jurisdiction is proper under
42 U.S.C. § 1983. Construing the Complaint broadly,
Plaintiff has stated claims pursuant to 42 U.S.C. §
1983 for deprivation of Plaintiff's First Amendment
rights on account of interference with non-legal mail,
and deprivation of Plaintiff's First and Fourteenth
Amendment rights on account of interference with legal
mail. Because Plaintiff has failed to adduce evidence
sufficient for a reasonable juror to find that the alleged
interference with his mail amounted to a constitutional
violation, summary judgment is granted on all claims.
1

Because no such legal provision exists, this claim will
not be addressed.

I. Non–Legal Mail
An inmate has a First Amendment right to “the free flow
of incoming and outgoing mail.” Davis v. Goord, 320
F.3d 346, 351 (2d Cir.2003); Heimerle v. Attorney General,
753 F.2d 10, 13 (2d Cir.1985). Restricting prisoners'
right to mail is permissible only where it “further[s]
one or more of the substantial governmental interests
of security, order, and rehabilitation ... [and is] no
greater than is necessary or essential to the protection
of the particular governmental interest involved.” Ahlers
v. Rabinowitz, 684 F.3d 53, 64 (2d Cir.2012) (quoting
Davis, 320 F.3d at 351). To establish a claim for
interference with regular, non-legal mail in violation of
the First Amendment, an inmate “must show a pattern
and practice of interference that is not justified by any
legitimate penological concern.” Cancel v. Goord, No. 00
Civ.2042, 2001 WL 303713, at *6 (S.D.N.Y. Mar. 29,
2001) (dismissing First Amendment claim where inmate
identified only a “single instance” of interference with his
regular mail). The Second Circuit has directed that “an
isolated incident of mail tampering is usually insufficient
to establish a constitutional violation.” Davis, 320 F.3d at
351.
*4 Here, the evidence in the record is insufficient for
a reasonable juror to find that Plaintiff has established
interference with his incoming non-legal mail rising to the
level of a First Amendment violation. Even construing
the evidence in Plaintiff's favor, Plaintiff has alleged only
one specific incident involving interference with his mail—
that he attempted to exchange mail with his friend Stacy,
whose last name and contact information he does not
know, and that neither Plaintiff nor Stacy received each
other's mail. Plaintiff's assertion that Defendant interfered

with his mail is otherwise based upon three facts: (1) that
he wrote numerous letters to individuals, businesses and
organizations, and did not receive responses to all of his
letters; (2) that approximately one week before Defendant
was transferred from GRVC, Defendant responded to
Plaintiff's allegations that she was stealing his mail by
stating “you crazy, take ya' medication, cause you got that
right, you won't be getting no f*ckin' mail from me” and
“[y]ou keep asking me stupid questions, you' aint' getting
your f*ckin' mail”; and (3) that he heard from “some other
guys” that Defendant was “playing with the mail” of the
inmates she did not like. These allegations are insufficient
to “establish a pattern and practice of interference [with
Plaintiff's mail],” particularly where Plaintiff also testified
that he otherwise received mail from “a lot of people”
and that no other individuals told him that they had
sent mail that he had not in fact received. Accordingly,
Defendant's Motion as to Plaintiff's First Amendment
claim for interference with non-legal mail is granted.

II. Legal Mail
Interference with legal mail may constitute a violation
of the right to free speech under the First Amendment
and the right of access to the courts under the First
and Fourteenth Amendments. Davis, 320 F.3d at 351;
Monsky v. Moraghan, 127 F.3d 243, 246–47 (2d Cir.1997)
(citing Lewis v. Casey, 518 U.S. 343 (1996)). As with
interference with non-legal mail, interference with legal
mail is permissible only where it “further[s] one or more
of the substantial governmental interests of security,
order, and rehabilitation ... [and is] no greater than is
necessary or essential to the protection of the particular
governmental interest involved.” Ahlers, 684 F.3d at 64
(internal quotation marks omitted). Legal mail, however,
is “afforded greater protection ... than ... non-legal mail.”
Davis, 320 F.3d at 351; accord Cancel, 2001 WL 303713,
at *6. To establish a violation of the right to free speech,
an inmate must still demonstrate that prison officials
“regularly and unjustifiably interfered with the ... legal
mail.” Cancel, 2001 WL 303713, at *6 (citing Washington
v. James, 782 F.2d 1134, 1139 (2d Cir.1986)). To establish
a claim of denial of access to the courts, a plaintiff
must show: (1) that the defendant acted deliberately and
maliciously; and (2) that the plaintiff suffered actual injury
in pursuing a legal claim. Davis, 320 F.3d at 351 (internal
quotation marks omitted).
*5 The record does not contain sufficient evidence
to permit a reasonable juror to find that Plaintiff

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has established that Defendant's conduct in respect
of Plaintiff's legal mail amounted to a constitutional
violation. First, Plaintiff has neither alleged nor produced
evidence that his receipt or delivery of legal mail was
impeded. Plaintiff testified that he “sent a lot of different
pieces of mail” to his lawyers, that “legal mail is always
recorded when you receive it,” and that he “received mail
from the lawyer.” 2 The record indicates at least twelve
occasions on which Plaintiff signed for legal mail for the
period from December 2011 through March 2012. Second,
there is no evidence that Plaintiff suffered any injury in
pursuing his legal claims as a result of any interference
with his legal mail. For example, when asked during
his deposition whether his criminal case was affected in
any way by the incident involving “[the] messing with
[his] mail,” Plaintiff responded “[o]nly in a mental way.”
Defendant's Motion for summary judgment on Plaintiff's
claims in respect of his legal mail is accordingly granted.
End of Document

2

Similarly, because Plaintiff has not alleged any
interference with his access to counsel, nor did any of
the evidence indicate as much, a Sixth Amendment
claim would also fail on these facts.

CONCLUSION
For the reasons discussed above, Defendant's Motion for
summary judgment dismissing all of Plaintiff's claims is
hereby GRANTED.
The Clerk of Court is directed to close the motion at
docket number 38, to close this case, and to mail a copy of
this Opinion and Order to the pro se Plaintiff.

All Citations
Not Reported in F.Supp.3d, 2014 WL 2095024
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