Bellezza v. Holland et al

Filing 28

OPINION re: 22 MOTION to Dismiss filed by R.J. Cunningham, L. Clark, B. Fisher, S. Katz, D. Holland. Upon the conclusions set forth in this Opinion, Defendants' motion to dismiss Plaintiff's denial of access to courts claim is granted, and Defendants' motion to dismiss Plaintiff's First Amendment claim is denied. (Signed by Judge Robert W. Sweet on 7/11/2011) (tro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

---x
FRANK BELLEZZA,

09 Civ. 8434

Plaintiff[

OPINION

-againstD. HOLLANDi
L. CLARKi
R.J. CUNNINGHAM;
B. FISCHER[

\1

USDC <;DNY
OOC{Jf\1F;'fT

ELECT~()~~r" 1.'"Jv

Defendants.

XII

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~~#~ILtJjili-u;;-;.~

A P PEA RAN C E S:
Pro Se
FRANK BELLEZZA,97A4585

Orleans Correctional Facility

3531 Gaines Basin Road

Albion, New York 14411

for Defendants
ANDREW M. CUOMO

Attorney General of the State of N.Y.

120 Broadway, 24th Floor

New York, NY 10271

By: Kevin R. Harkins [ Esq.

Assistant Attorney General

Sweet, D. J.

Defendants D. Holland (ftHolland H), L. Clark (ftClarkH),
S. Katz

R.J.

("KatzH),

Cunningham ("Cunningham")

and B.

Fischer

(ftFischer")

(collectively, the "Defendants") have moved pursuant

to

Rules

Federal

of

Civil

Procedure

12(b) (6)

to

dismiss

the

Amended Complaint of plaintiff Frank Bellezza ("Bellezza" or the
leging a violation of 42 U.S.C.

"Plaintiff")

conclusions set forth below,

§

1983.

Upon the

the motion is granted in part and

denied in part.

Prior Proceedings

The complaint in this action was filed by Plaintiff,
an

inmate

at

the

October 5, 2009.

Orleans

Correctional

Facility,

pro

It alleged that Holland and Clark,

se

on

concert

with the remaining Defendants, withheld legal documents pursuant
to

a

policy

"instituted

and

enforced"

by

Holland,

whereby

Plaintiff "is and shall be subjected to disciplinary action" if
he

participates

prove any
burden of

in

any

civil

litigation

and

"is

required

to

legations raised in legal claims to an unspecified
proof

set

arbitrarily by Holland."

(Compl.

~

15.)

Specifically, Plaintiff alleged that Clark opened mail addressed
to Plaintiff on April 15,

2009 and withheld a check for $55.98
3

(the

"Settlement

knowledge and consent of
issue

a

receipt

confiscation.

contained

Check")

for
~~

Id.

in

the

mailing,

with

the

the remaining Defendants and did not
the

Settlement

Check

following

its

Plaintiff also alleged that

16-18/ 20.)

on April 21, 2009, as a result of having received the Settlement
Check,

he was

Impersonation,

Inmate Misbehavior Report

180.11

"Correspondence

("IMRIf)

Rule

Violation,

and 180.17 "Unauthorized Legal Assistance.

II

Id.

If

by

111.10

Solicitation,

103.20

with

him

charging

Holland,

Lying,

issued an

107.20
~

21.)

He was found guilty of the charges and on appeal his penalty was
modified,
leged

but
that

not

Id.

vacated.

Plaintiff

is

~ 25.)

at

precluded

from

future, unspecified class actions because
expect []
Id. at

The

participating

if he did so.

28.)

On February 19,
original complaint.

2010, Defendants moved to dismiss the

On July 27,

2010,

the Court dismissed the

Complaint with leave to replead within 40 days,
that

Plaintiff's

(1 )

denial

of

access

interference with legal mail and

(2)

by the

of

denial

adequately

in

could "reasonabl[y]

to be subjected to disciplinary action"
~

complaint

of

the

leged,

free

flow

and

because

to

on the grounds
the

courts

by

First Amendment violation
mail

claims

Plaintiff's

had not

been

claim

for

deprivation of property was precluded because adequate state law
4

remedies

existed

which

he

had

not

The

pursued.

additionally dismissed the claims against Katz,

Court

Cunningham and

scher for failure to allege their personal involvement in the
alleged constitutional deprivations.

On

filed

an

Amended

2010, Defendants moved to dismiss the

The

complaint.

Plaintiff

2010,

18,

On October 8,

Complaint.
amended

August

instant

motion

was

marked

fully

submitted on December 15, 2010.

~legations

Asserted in the Amended Complaint

The

Amended Complaint

alleges

that

on

at

least

two

separate occasions,

defendants Clark and Holland opened,

read,

photocopied,

withheld

legal

and

Plaintiff's

privileged

correspondence outside of his presence, in violation of New York
State

Correctional

Department

federal caselaw.

~

(Amend. Compl.

Services

10.)

withheld

Administrator

mail
in

the

from

the

class

Court

action of

and

Specifically, Plaintiff

alleges that on April 15, 2009 Clark opened,
and

regulations

read,

photocopied,

Appointed

Wilson v.

which Plaintiff alleges he was a class member

Settlement

Airbourne,
id.

~

11),

of
and

that Clark and Holland withheld the Settlement Check enclosed in
that

correspondence

(id.

~

15).
5

aintiff

asserts

that

on

another separate occasion Defendant Clark opened,

read,

and

with

withheld

action

of

legal

"TRACK

class member.
practice

of

correspondence

in

AWP"

Plaintiff

1

~

(Id.

was

Airbourne

sent

Francisco

Jaureuqi,

90-A-310B.

Id.

to

~

"requiring

superintendent

Marcelo

DIN#:

he

asserts

class
was

that

withholding

included

the

a

the

legal

same

with

Rogriguez,

87-A-2530,

and

DIN#:

Juan

76 -A-324 7,

Martinez,

DIN#:

14.)

also

alleges

Holland

to

inmates
before

court

and

and

a

related to the class action of Wilson v.

permission

get

corresponding

settlement administrators,
receiving

alleges

further

copying,

spread"

inmates

Plaintiff
rules

reading,

"wide

regard to legal mail

which

Plaintiff

18.)

opening,

correspondence

of

connection

copied,

and

with

Clark
from

fabricated

the

court

facility
appointed

participating in civil litigation,

authorized

settlement

funds l l

(id.

~

17),

or
and

that Holland created a policy requiring inmates to "prove their
legal claims to
raising
that

the

same

[the Department of Correctional Services] before

in a

Central

policy exists,

legal

claim"

~lB).

Office Review Committee

ainti ff

advised

that

states
no

such

in response to grievances which Plaintiff filed

(WB - 1458 0 0 9 and WB - 1457 8 - 0 9) .
that

id.

Id.

~

19.)

nonetheless Holland subj ected him to

Plaintiff asserts
discipl inary action,

resulting in the loss of good time, placement in Special Housing
6

at the Southport Correctional FacilitYI
rd.

the Settlement Check.

Plaintiff

,

avers

and the confiscation of

20.)

that

the

Defendants

actions

I

"did

deter Plaintiff from taking part in any additional class action
lawsuit

settlements
ly

Specifi
action

was

and

continue[s]

to

Plaintiff states that

I

not

frivolous

and

had

do

rd.

SO.II

,

24.)

his claim in the Airbourne
been

approved

by

the

Court

appointed settlement administrators and that he "is qualified to
take

part

in

several

other

class

action

claims l

including ll

against De Beers Diamonds and Air Cargo Shipping companies
well

as

with

"untold others.

regard
rd.

II

Plaintiff
amended

complaint

Defendants
Plaintiff
time.

S.

,

AWP

Track

2

prescription

drugs

as
and

28.)

disclaims
(AC

Katz I

to

I

,

R. J.

33)

pursuing
I

and

property claim in his

abandons

Cunningham I

likewise disclaims

a

seeking

any

and B.

claims

Fischer

reinstatement

of

against

(AC

,

7).

any good

(Pl. Reply, 6).

The Law of the Case Doctrine Does Not Control The Outcome Here

At
Complaint

the

threshold l

Defendants assert

should be dismissed pursuant
7

to the

that

the Amended

law of

the case

doctrine

the

because

Amended

(Mem.

identical to the Original Complaint."
of Defs.'
adheres

Mot.
"'to

litigation'
not to,

own

unless

such as

availability of

decision

there

are

of Law in Support

Under that doctrine,

to Dismiss 9.)
its

"substantively

is

Complaint

at

an

'cogent'

earlier
or

stage

of

'compelling'

the

reasons

'an intervening change of controlling law,
new evidence,

or the

need to correct

error or prevent manifest injustice.'ff Sanders v.
F.2d 601

a court

(2d Cir.

1990)

(quoting Doe v. New
______

Social Services, 709 F.2d 782,

789

~__________

(2d Cir.

a

the

clear

Sullivan,

_ _ _ _- L_ _

1983).

~~

900
_ _ _ __

The law of

the case doctrine does not control here, however, as the Amended
Complaint alleges materially different and more detailed claims
than the original Complaint, as discussed below.

The 12 (b) (6) Standard

In considering a
12 (b) (6) ,

the

Court

motion to dismiss pursuant

construes

the

complaint

to Rule

liberally,

"accepting all factual allegations in the complaint as true, and
drawing

all

reasonable

inferences

_C~h.~a_mb e_r_s v . ____~__~.~~~I~n~c~.,
__ ____

(citing Gregory v.
Though

the

court

complaint as true,

Daly,
must

243

in

the

plaintiff's

282 F.3d 147,
F. 3d

accept

the

687,

691

factual

152
(2d

favor."

(2d Cir. 2002)
r.

allegations

2001)).
of

a

it is "not bound to accept as true a legal
8

legation."

conclusion couched as a factual

--- u.s.
Corp.

v.

dismissal,

Twombly,

550

1937,

1949

(2009)

U.S.

129 S.Ct.

544,

555

Ashcroft v.

Iqbal,

(quoting Bell Atl.
(2007)).

To

survive

"a complaint must contain sufficient factual matter,

accepted as true,

Iqbal,

on its face.'"
U.S. at 570).

to 'state a claim to relief that is plausible

In other words,

facts to "nudge[]
to plausible."

129 S.Ct.

at 1949

(quoting Twombly,

550

Plaintiff must allege sufficient

their claims across the line from conceivable

Twombly, 550 U.S. at 570.

As the Second Circuit has recognized, in Iqbal, the
Supreme Court suggested a "two-pronged approach" to evaluate the
sufficiency of a complaint.

Iqbal, 129 S.Ct. at 1949-50.

v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010)

See
A

court may "begin by identifying pleadings that, because they are
no more than conclusions, are not entitled to the assumption of
truth." Iqbal, 129 S.Ct. at 1950.

"At the second step, a court

should determine whether the 'well pleaded factual allegations,'
assumed to be true,

'plausibly give rise to an entitlement to

relief.'" __~__ , 594 F.3d at 161 (quoting Iqbal, 129 S.Ct. at
1950) .

"The plausibility standard is not akin to a probability

requirement, but it asks for more than a sheer possibility that
a

fendant has acted unlawfully."

(internal quotation marks omitted) .
9

Iqbal, 129 S. Ct. at 1949

In addressing the present motion, the Court is mindful
that

Bellezza

plaintiffs

is

lack

familiarity
[courts]

requirements,
liberally,

proceeding

than

232 F.3d 135,

[pro se pleadings]

with

most

formalities

pro

of

pleading

complaints

se

would

when

Lerman v.

Bd.

139-40

(2d Cir.

reviewing

a

complaint

of Elections in
2000).

Courts

"interpret

'to raise the strongest arguments that they

Hopkins,

14 F.3d 787,

790

(2d Cir.

rules

of

procedural

and

substantive

Triestman v. Fed. Bureau ofPrisons , 470 F.3d 471, 477

I.

1994)).

"pro se status 'does not exempt a party from compliance

relevant

2006)

(quoting

~~~~~~v~.__
Z~u~c~k,

law.

A.

710 F.2d 90, 95 (2d Cir. 1983)).

Right of Access to Courts

It is well established that prisoners have a
constitutional right to "adequate r effective r and meaningful"
access to the courts.
see

--'--==-=--='

'If

(2d Cir.

Plaintiff's Interference with Legal Mail Claims

(1977) i

se

McPherson v. Coombe, 174 F.3d 276, 279 (2d Cir. 1999)

II'

(quoting Burgos v.
However,

the

construe

must

[they]

submitted by counsel.1/

suggest.

with

"Since

se.

applying a more flexible standard to evaluate their

sufficiency

N.Y.,

pro

Bounds v. Smith, 430 U.S. 817, 822

Lewis v. Casey, 518 U.S. 343, 346 (1996)
10

i

Bourdon v. Loughren, 386 F.3d 88, 92-93 (2d Cir. 2004) i Davis v.
Goord, 320 F.3d 346, 351-52 (2d Cir. 2003).

The Supreme Court

has alternately grounded this right in the constitutional
guarantees of equal protection, due process, privileges and
immunities, and the right to petition the government for
grievances.

Bourdon, 386 F.3d at 92.

Whether
an
access
claim turns
on
a
litigating
opportunity yet to be gained or an opportunity already
lost, the very point of recognizing any access claim
is to provide
some effective vindication
for a
separate and distinct right to seek judicial relief
for some wrong.
However unsettled the basis of the
consti tutional right of access to courts, our cases
rest on the recognition that the right is ancillary to
the underlying claim without which a plaintiff cannot
have suffered injury by being shut out of court.

Christopher v. Harbury, 536 U.S. 403, 414 15 (2002).

The right of access to courts gives rise to a number
of derivative rights, including the right of inmates to receive
legal mail without interference.
("Interference

Davis, 320 F.3d at 351

th legal mail implicates a prison inmate's

rights to access to the courts and free speech as guaranteed by
the First and Fourteenth Amendments to the U.S. Constitution.")
Collins v. Goord, 581 F. Supp. 2d 563, 573

i

(S.D.N.Y. 2008)

(noting that "[t]he constitutional right of access to the courts
gives rise to a number of derivative rights").

This right

requires state prisons "to give prisoners a reasonably adequate
11

opportunity to present claimed violations of fundamental
constitutional rights to the courts."

"To state a claim

Bounds, 430 U.S. at 825.

denial of access to the courts-­

in this case due to interference with legal mail- a plaintiff
must allege that the defendant took or was responsible for
actions that hindered [a plaintiff's] efforts to pursue a legal
claim./I

Davis, 320 F.3d at 351 (internal quotation marks and

citations omitted).

See also Collins, 581 F. Supp. 2d at 573

(finding plaintiff must show actual injury, that is that "the
defendant's conduct frustrated the plaintiff's efforts to pursue
a nonfrivolous claim."

(citing Lewis, 518 U.S. at 353)).

"Unlike prisoners who bring a claim for the violation of a
constitutionally protected right, who have standing to assert
that right even if the denial of the right did not cause an
'actual injury,' prisoners who bring a claim for the violation
of a derivative right of access to the courts must demonstrate
'actual injury' in order to have standing."

Id.

(citing

Benjamin v. Fraser, 264 F.3d 175, 185 (2d

. 2001)).

Thi s

requirement "ensures that courts provide relief to claimants
only when they have suffered or will imminently suffer actual
harm and prevents courts from undertaking tasks assigned to the
other political branches."

(c

343, 349 (1996)).
12

ing Lewis v.

, 518 U.S.

In the context of the derivative right to legal
libraries in prisons, the Supreme Court has articulated that the
actual injury requirement nis not satisfied by just any type of
frustrated legal claim."

Lewis, 518 U.S. at 354.

In Lewis, the

Court noted that right does nnot guarantee inmates the
wherewithal to transform themselves into litigating engines
capable of filing everything from shareholder derivative actions
to slip-and-fall claims."

Id. at 355.

Instead, the right

requires that inmates be provided with what they need to "attack
their sentences, directly or collaterally, and.
conditions
actions.

. challenge

confinement," id., and not be impeded in these

Claims that have provided the basis for actual injury

in access to courts cases include direct appeals of convictions,
n'civil rights actions'

.e., actions under 42 U.S.C.

vindicate 'basic constitutional rights. '" Id. at 354
omitted) .

"Impairment of any other litigating capaci

§

1983 to

(citations
is

simply one of the incidental (and perfectly constitutional)
consequences of conviction and incarceration."
(emphasis in original).

Id. at 355

See also Hoffenberg v. Bodell, No. 01

Civ. 9729 (LAP), 2002 WL 31163871 (S.D.N.Y. Sept. 3D, 2002)
(rejecting argument that statute of limitations should be tolled
legal malpractice action due to prison official's depriving

13

inmate of related legal documents (citing Lewis, 518 U.S. at
355)).

Here, the Amended Complaint alleges that Clark read,
photocopied, and withheld mail from the Court Appo
Settlement Administrator in Wilson v. Airbourne (AC ~ 11), that
Clark and Holland withheld the Settlement Check

id. ~ 15), that

on another separate occasion Defendant Clark opened, read,
copied[ and withheld

correspondence in connection with a

class action of "TRACK 1 AWp

ll

(Id. ~ lB.), that the practice of

opening, reading, copying, and withholding I
was "wide spread
mail related to

ll

correspondence

and included the same with regard to legal
class action of Wilson v. Airbourne sent to

inmates Marcelo Rogriguez, DIN#: 76-A-3247, Francisco Jaureuqi,
DIN#: 87-A-2530, and Juan Martinez[ DIN#: 90-A-310B.
~

14.)

(Id.

The Amended Complaint additionally alleges that

Plaintiff did not recover what he otherwise would have [ namely
the check[
deprivation

of interference with
documents relating to

action prevented his participation
Plainti

leges that Clark and Holl

him of various legal materials and

s mail and that the
"TRACK 1 AWp
suit.

ll

class

In sum,

effectively deprived
such deprivation impeded

his ability to successfully pursue and receive remedies in two
civil class actions, as well as unnamed others.
14

is precluded from

Bellezza's allegation that

participating in future unspecified class-action litigation is
insufficient to state an actual injury. Bellezza v. Holland, 730
F. Supp. 2d 311, 316 (S.D.N.Y. 2010)
Harbury, 536 U.S. 403

i

see also Christopher v.

(dismissing access to courts claim where

plaintiff did not identi

underlying cause of action as

insufficiently alleging actual i

ury) i Amaker v.

98 Civ. 2663, 1999 WL 76798, at *3

, No.

(S.D.N.Y. Feb. 17, 1999)

(granting motion to dismiss access to courts claim for failure
to demonstrate actual injury).
access to courts

The remainder of

aintiff's

aim is based on allegations regarding the

Airbourne and Track 1 AWP class actions.

A broad range of

causes of action could be understood to fall within the right of
access to courts guaranteed to inmates, and it might well be
reasonable to permit a greater range of claims with regard to
interference with legal mail than with respect to the
firmative provision of legal materials in a

son library or

otherwise--that is, where an inmate seeks to avoid interference
with a claim, not to gain tools (and use state resources) to
pursue one.

However, the class actions at issue here do not

fall within the range of those previously recognized, and the
Court will not today expand the right so as to encompass them.
Plaintiff's access to courts claim is therefore dismissed.
15

B.

First Amendment Right to Free Flow of Mail

"In addition to the right of access to

courts, a

prisoner's right to the free flow of incoming and outgoing mail
is protected by the

rst Amendment."

Davis, 320 F.3d at 351.

A prisoner's mail may only be restricted to further "'one or
more of the substantial governmental interests of securitYI
order, and rehabilitation'" and the rest
greater than is necessary or essenti

ction "'must be no

to the protection of the

particular governmental interest involved. 'II

Id.

(quoting

Washington v. James, 782 F.2d 1134, 1139 (2d Cir. 1986)).

The

rst Amendment protects prisoners' access to mail directly,
unlike the right of access to courts, which protects prisoners'
access to mail only derivat

ly and with respect to given

claims.

A prisoner

a right to be present when his legal

mail is opened, but "an isolated incident of mail tampering is
usually insufficient to establish a constitutional violation."
Id.

(c

ing Wolff v. McDonnell, 418 U.S. 539, 574 76 (1974)

Morgan v. Montanye, 516 F.2d 1367, 1371 (2d
Washington, 782 F.2d at 1139).
prison

i

. 1975) i

Rather, an inmate must show that

ficials "regularly and unjustifiably interfered with
16

the incoming legal mail./I

Id.

When balancing the competing

interests implicated by restricting prison mail,

"courts have

consistently afforded greater protection to legal mail than to
non-legal mail, as well as greater protection to outgoing mail
than to incoming mail.

1I

rd.

(citing

v. Abbott, 490

U.S. 401, 413 (1989); Washington, 782 F.2d at 1138 39; Davidson
v. Scul

,694 F.2d 50, 53

(2d Cir. 1982)).

In Washington v. James, 782 F.2d 1134, the Second
Circuit found that "as few as two incidents of mail tampering
could constitute an actionable violation (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.

1I

Davis,

320 F.3d at 351 (citing Washington, 782 F.2d at 1139); see also
Turner v. Saf

482 U.S. 78, 84 91 (1987)

(prison regulations

impinging constitutional rights must be "reasonably related to
legitimate penological interests

ll

).

As noted above, the Amended Complaint alleges that
Clark read, photocopied, and withheld mail from the Court
Appointed Settlement Administrator in Wilson v. Ai
11), that Clark and Holland withhe
17

the Settlement Check

(AC ~
id.

~

15), that on another separate occasion Defendant Clark opened,
read, copied, and withheld legal correspondence in connection
with a class action of "TRACK 1 AWP"

Id. ~ 18.), that the

practice of opening, reading, copying, and withholding legal
correspondence was "wide spread" and included the same with
regard to legal mail related to the class action of Wilson v.
Airbourne sent to inmates Marcelo Rogriguez, DIN#: 76-A-3247,
Francisco Jaureuqi, DIN#: S7-A-2530, and Juan Martinez, DIN#:
90-A-310S.

(Id. ~ 14.)

The AC further alleges that Holland and Clark
fabricated rules "requiring inmates to get permission from the
facility superintendent before corresponding with court
appointed settlement administrators, participating in civil
litigation, or receiving court authorized settlement funds"
~

id.

17), and that Holland created a policy requiring inmates to

"prove their legal claims to [the Department of Correctional
Services) before raising same in a legal claim"

(id.

~

IS).

aintiff has adequately plead that Defendants engaged
in an ongoing practice of censorship.

Defendants make no effort

to justify the alleged interference with the Plaintiff's mail in

IS

terms of a substantial governmental interest.
therefore made

1

Plaintiff has

ficient allegations to state a First Amendment

claim for interference with legal mail, and Defendants' motion
to dismiss that claim is accordingly denied.

II. Defendants' Qualified Immunity Claim

Defendants argue that they are entitled to qualified
immunity because it was reasonable for them to believe that
their actions did not violate clearly established law.

The doctrine

qualified immunity provides "that

government officials performing discretionary functions
generally are shielded from liability for civil damages insofar
as their conduct does not violate clearly established .
constitutional rights of which a reasonable person would have
known."

Harlow v. Fit

, 457 U.S. 800, 818

(1982).

While

not mandatory, Courts utilize the two-step analysis articulated
in Saucier v. Katz, 533 U.S. 194, 201 (2001), when appropriate
in assessing a claim of qualified immunity.

Pearson v.

Because Plaintiff alleges that the check and related correspondence was
confiscated and as was legal mail relating to the "Track 1 AWP" litigation,
Defendants cannot successfully argue that the Amended Complaint alleges a
mere delay in the plaintiff's receipt of the mailed items.
See Davis, 320
F.3d at 352 ("Mere '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. "') (quoting
877 F. Supp. 864, 871
(S.D.N.Y.)).

19

lahan, 55 U.S. 223, 129 S.Ct. 808, 821 (2009)

("Because the

two step Saucier procedure is often, but not always 1
advantageous 1 the judges of the dist

ct courts and the courts

of appeals are in the best position to determine the order of
decisionmaking that will best facilitate
disposition of each case.").

fair and efficient

Qualified immunity is appropriate

either if Plaintiff/s allegations, if true

l

do not establish a

constitutional violation, or if the right was not clearly
established at the time it was
Pearson

l

55 U.S. 223

Wolcott

l

599 F.3d 129 1 133

1

legedly infringed.

See

129 S.Ct. at 815-16; Taravella v. Town
&

n.2 (2d Cir. 2010)

(citations

omitted) .

To be clearly established, "[t]he contours of the
right must be sufficiently clear that a reasonable
off ial would understand that what he is doing
violates that right." Anderson v. Cre
, 483 U. S.
635
640 (1987).
An official is therefore entitled to
immunity if
his action was
"objectively legally
reasonable in light of the legal rules that were
clearly established at the time it was taken." X-Men
Sec'
Inc. v. Pataki, 196 F.3d 56 1 66 (2d Cir. 1999)
(citing Anderson, 483 U.S. at 639) (quotation marks
and alterations omitted) .
1

l

Taravella

l

599

F.3d

at

In

133.

determining

particular right was clearly established
(1)

whether

the

right

"reasonable specificity"

i

in

question

l

courts

was

whether

a

look to:

defined

with

(2) whether the decisional law of

the Supreme Court and the applicable circuit court support
20

the

existence

the

right

in

question;

and

(3)

whether

under preexisting law a reasonable defendant offici
have

understood

that

his

or her

acts

were

would

unlawful.

See

Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir. 1991).

It is clear that prohibiting a prisoner from receiving
legal mail may violate the

rst Amendment.

contention that "they could not know that

Defendants'
aintiff had a

constitutionally protected ability to participate in class
action lawsuits"

(Def. Mem. Of Law in Support of Def. Mot. to

smiss 22) misses the point.

On a number of occasions prior to the events in
question, the Supreme Court has recognized that prisoners have a
protected First Amendment right in sending and receiving
correspondence.

See

., Thornburgh, 490 U.S. at 407, 415;

---'---=<-

Procunier v. Martinez, 416 U.S. 396, 406, 415 (1974).
has the Second Circuit.
Allen v.

~~~---~~~--

-~"-----

at 1139.

See

e . . , Davis

320 F.3d at 351;

l

, 64 F.3d 77, 81 (2d Cir. 1995); Purcell v.

, 790 F.2d 263, 264

(2d Cir. 1986)

i

Washington, 782 F.2d

Both the Supreme Court and the Second Circuit have

held that inmates' right to receive mail may be impinged only by
regulations that are "reasonably related to legitimate
penological interests." See Turner, 482 U.S. at 89; Davidson v.
21

Mann, 129 F.3d 700 1 701 (2d Cir. 1997)

(noting that prison

regulation limiting stamps available to prisoners for non legal
mail was subject to Turner analysis and upholding the regulation
so Nicholas v. Miller l 189 F.3d 191 (2d

---------

Cir. 1999)

(vacating and remanding for failure to apply Turner

factors to prison regulation allegedly impinging First Amendment
rights).
dist

The Second Circuit has on numerous occasions reversed

ct court decisions dismissing a prisoner1s claim that his

right to send or receive mail was being violated. See Allen, 64
F.3d at 79-80 (reversing dismissal of claim relating to prison
regulaitons forbidding the receipt of newspapers other than
those sent directly from the publi
distributor)

i

or an approved

Purcell 1 790 F.2d at 265 (revers

dismissal of

claims relating to the interference of inmate/s outgoing and
incoming mail)

i

Washington, 782 F.2d at 1139 (same) .

Given the existing precedent

1

Defendants should have

been aware that Plaintiff/s First Amendment right to receive
mail could only be impinged by reasonable regulations connected
to the legitimate concerns of prison officials.
Haponikl No. 98 Civ. 2663 (JCK)
171

1999)

1

See Amaker v.

1999 WL 76798 (S.D.N.Y. Feb.

(addressing issue similar to that here and finding

that right to receive mail absent reasonable prison regulation
was well established for purposes of qualified immunity inquirYI
22

independent of access to courts claim).2

Defendants have failed

to explain how their actions comport with well-established First
Amendment law or how reasonable officials should have so
concluded, and they fail to cite any case law in support of
their argument.

Furthermore, as in Amaker v. Haponik, at this stage of
the proceedings it is premature to find that Defendants are
entitled to qualified immunity.

See Amaker v.

Civ. 2663, 1999 WL 76798 at *8.

The Court has no information

bearing on the Turner factors from which

, No. 98

could determine

whether the defendants violated any clearly established
constitutional right of Plaintiff.

Defendants have not provided

the Court with information concerning: 1) whether there is a
legitimate penological justification for the

leged policy

regarding correspondence with court appointed settlement
administrators, 2) whether there are alternative means by which
aintiff could exercise his First Amendment rights, 3) whether
an accommodation of

aintiff's right to rece

mail would have

an adverse impact on guards, other inmates, and prison resources
As here, Amaker involved alleged interference with an inmate's legal
mail, assertedly in violation of prison regulations; Plaintiff alleged both
an access to courts claim and a First Amendment free flow of legal mail
claim; and Defendants asserted qualified immunity on a motion to dismiss.
No. 98 Civ. 2663, 1999 WL 76798. Similarly, the court in Amaker was not in
possession of the relevant regulations, and Defendants failed to provide
information regarding whether a legitimate penological justification existed
for the alleged interference.
. at *8. The Court adopts Judge Koeltl's
reasoning in
in
part here.

23

generally, or 4) whether obvious, easy
st.

restrict

ternatives to the

Nor has the Court been presented with

adequate information regarding

ations at issue in this

case, which Plaintiff asserts Defendants' actions violated (AC ~
21), or how these regulations were
finding of qualified immunity is

ied to Plaintiff.
fore premature.

A

See

, Amaker v. Haponik, No. 98 Civ. 2663, 1999 WL 76798, at *8
(finding qualified immunity defense premature on a motion to
dismiss)

i

Burgess v. Goord, No. 98 Civ. 2077, 1999 WL 33458, at

*6 (S.D.N.Y. Jan. 26, 1999)

(same); Thomas v. Coombe, No. 95

Civ. 10342, 1998 WL 391143, at *5 (S.D.N.Y. July 13, 1998)
(same); ------~------------------------------------~--~ , No. 97
Whitl
v. Westchester Correctional
. 0420, 1997 WL 659100, at *9 (S.D.N.Y. Oct. 22, 1997)
(same) .

Defendants' motion to dismiss Plaintiff's
Amendment claim based on qualified immunity is there
without prejudice.

24

rst
denied

Conclusion

Upon the conclusions set forth above, Defendants'
motion to dismiss Plaintiff's denial of access to courts claim
is granted, and Defendants' motion to dismiss Plaintiff's First
Amendment claim is denied.

It is so ordered.

New York, NY
July I /, 2011
U.S.D.J.

25