Antrobus v. George R. Vierno Center et al
OPINION AND ORDER re: 47 MOTION to Dismiss, filed by City of New York, 63 MOTION to Amend/Correct 38 Affirmation in Opposition to Motion, filed by Andre Antrobus. For the foregoing reasons, Plaintiffs claim that the City violated his constituti onal right of access to the courts is dismissed. Plaintiff's First Amendment claim may proceed under the theory that he may be entitled to nominal or compensatory damages for the City's alleged interference with his right to the free flow o f mail. The City shall notify the Court by April 3, 2014 if referral for a settlement conference with Magistrate Judge Gorenstein would be productive at this time. The Clerk of Court is respectfully directed to close the motions at docket numbers 47 and 63. SO ORDERED. (Signed by Judge Ronnie Abrams on 3/27/2014) (ja)
at two New York City correctional facilities, the George R. Vierno Center (“GRVC”) and the
Anna M. Kross Center (“AMKC”). (Am. Compl. 1-3.) 1 Plaintiff alleges that correction officers
have withheld his mail, stolen it, and failed to send it altogether. He further alleges that they
have admitted to regularly opening and reading his legal mail. (Id. at 3, 5, 22, 33.) In particular,
he states that officers have “been throwing away, [r]eading and thie[v]ing [his] mail” and that
they “stole and thr[e]w [away] garbage [b]ags of mail[,] some stamped.” (Id. at 3.) Plaintiff also
asserts that he would “put something in the mail [and] get no response . . .” and that he has “no
communication with [his] [a]ttorney [be]cause . . . mail do[es]n’t go out or [it is] held and
return[ed] read or takes 3 to 4 weeks.” (Id. at 5.) The witness statements further allege that an
officer in the mail room said she was not sending out Plaintiff’s mail on instructions from her
supervisors, that his mail was thrown away “many times,” and that his mail has been held for a
period of time and then returned to him without being sent. (Id. at 22, 29, 32, 35-37.)
One witness statement asserts that there is “a [l]imit on legal mail and when you hit your
max you can’t send mail to courts, [l]egal agencies and witnesses.” (Id. at 23.) Another states
that Plaintiff and other inmates have been told that they could not “send mail for several months”
or “for 12 months.” (Id. at 23, 26.) The Amended Complaint also appears to assert that Plaintiff
has been improperly denied the right to send mail because he has no money to pay for postage.
(See id. at 3, 22, 28, 30.)
Plaintiff alleges that, as a result, the City was responsible for “hampering and stopping
[Plaintiff’s] defense [and] not allowing [his] motions to [b]e adopted [be]cause of untimely
fashion with courts . . . .” (Id. at 4.) He also accuses the City of “stopping access to legal
agencies witnesses [l]awyers [l]osing cases civil and criminal . . . and tactics to be unlawfully
For ease of reference, any citations to specific pages of the Amended Complaint reflect page number designations
made by the Court’s Electronic Case Filing system.
convicted.” (Id. at 7.)
According to Plaintiff, these events were “ongoing for 26 ½ months” or “24 months,”
starting when he was in custody at GRVC in 2011 and continuing through his 2013 detention at
AMKC. (Id. at 2-3, 5.) He contends that he complained to numerous correction officers and
attempted to file grievances, but that his complaints and grievances were ignored. (Id. at 3, 6.)
Plaintiff also seems to indicate that he initiated Article 78 proceedings. (Id. at 6, 12.) Since
filing his Amended Complaint, Plaintiff has been transferred to Green Haven Correctional
Facility in Stormville, NY. (Dkt. 65.)
Plaintiff requests a court investigation and “a ruling about indigent persons and legal mail
[and] legal mail in general.” (Am. Compl. 4.) He also seeks $10 million in compensatory
damages “for pain suffering, . . . health issues and mental stress disorders . . . .” and $20 million
in punitive damages. (Id. at 4, 7.)
Applicable Legal Standard
“In considering a motion to dismiss . . . the court is to accept as true all facts alleged in
the complaint . . . . [and] draw all reasonable inferences in favor of the plaintiff.” Kassner, 496
F.3d at 237 (citation omitted). “This rule applies with particular force where the plaintiff alleges
civil rights violations or where the complaint is submitted pro se.” Thompson v. Carter, 284
F.3d 411, 416 (2d Cir. 2002) (quoting Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998)).
A pro se complaint “must be construed liberally with special solicitude and interpreted to raise
the strongest claims that it suggests. Nonetheless, a pro se complaint must state a plausible claim
for relief.” Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013) (internal quotation marks and
The Second Circuit has explained that tampering with a prisoner’s mail may constitute an
actionable violation of § 1983 “(1) if the incidents suggested an ongoing practice of censorship
unjustified by a substantial government interest, or (2) if the tampering unjustifiably chilled the
prisoner’s right of access to the courts or impaired the legal representation received.” Davis v.
Goord, 320 F.3d 346, 351 (2d Cir. 2003). Interference with a prisoner’s mail thus may implicate
two distinct rights: the “right of access to the courts” and the “right to the free flow of incoming
and outgoing mail.” Id.
Right of Access to the Courts
Reading the Amended Complaint liberally, Plaintiff alleges that the City violated his
constitutional right of access to the courts by interfering with his legal mail. He claims that the
correction officers delayed and failed to send his outgoing legal mail, thereby causing him to lose
motions and “hampering” his criminal defense. (Am. Compl. 4, 7.) Plaintiff also asserts that
correction officers violated his rights by reading his legal mail outside of his presence. (Id. at 3,
5, 11, 33.)
To state a valid access-to-the-courts claim, however, “a prisoner must [also] allege that
the prison officials’ deliberate and malicious interference resulted in actual injury, such as the
dismissal of an otherwise meritorious legal claim on direct appeal.” John v. New York Dep’t of
Corr., 130 F. App’x 506, 507 (2d Cir. 2005) (internal quotation marks omitted and emphasis
added); see also Christopher v. Harbury, 536 U.S. 403, 415 (2002) (plaintiff must allege injury to
a “nonfrivolous” and “arguable” legal claim). In alleging actual injury, Plaintiff must specify in
his Amended Complaint which legal matter the City has hindered him from pursuing. See
Christopher, 536 U.S. at 415; see also Collins v. Goord, 581 F. Supp. 2d 563, 573 (S.D.N.Y.
2008) (explaining that, to show “actual injury” in this context, “plaintiff must demonstrate that
the defendant’s conduct frustrated the plaintiff’s efforts to pursue a nonfrivolous claim”).
The allegations of injury in Plaintiff’s Amended Complaint are not specific enough to
state a plausible access-to-the-courts claim. Plaintiff appears to assert that he lost one or more
motions due to mail delays (Am. Compl. 4), but he provides no case names or numbers and does
not even specify the court in which his motions were filed. Although Plaintiff further accuses
the City of “hampering and stopping my defense . . .” and “[l]osing cases civil and criminal
sabotage effort and tactics to [b]e unlawfully convicted,” (id. at 4, 7), these allegations are “no
more than conclusions . . . not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009). Accordingly, Plaintiff’s access-to-the-courts claim must be dismissed. See,
e.g., Bellezza v. Holland, No. 09 Civ. 8434, 2011 WL 2848141, at *5 (S.D.N.Y. July 12, 2011)
(dismissing access-to-the-courts claim for failure to allege injury where plaintiff stated that he
was “precluded from participating in future unspecified class-action litigation”); Amaker v.
Haponik, No. 98 Civ. 2663 (JGK), 1999 WL 76798, at *3 (S.D.N.Y. Feb. 17, 1999) (dismissing
access-to-the-courts claim for failure to allege injury where plaintiff asserted that interference
with his mail delayed his court filings and caused the possible loss of two legal claims).
To the extent that Plaintiff claims that the City’s interference with his mail caused him to
be wrongfully convicted, there is another basis for dismissal. “In Heck v. Humphrey, 512 U.S.
477, 487 (1994), [the Supreme Court] held that a state prisoner’s claim for damages is not
cognizable under 42 U.S.C. § 1983 if ‘a judgment in favor of the plaintiff would necessarily
imply the invalidity of his conviction or sentence,’ unless the prisoner can demonstrate that the
conviction or sentence has previously been invalidated.” Edwards v. Balisok, 520 U.S. 641, 643
Plaintiff, therefore, is not permitted to seek monetary relief based on his alleged
wrongful conviction, because he has not shown that his conviction has been invalidated. See,
e.g., Blake v. Coughlin, 205 F.3d 1321 (2d Cir. 2000) (affirming dismissal of prisoner’s
wrongful conviction claim under § 1983 because his “conviction has not been reversed or
vacated”); Hoard v. Reddy, 175 F.3d 531, 533 (7th Cir. 1999) (explaining why monetary
damages are not available under Heck for an access-to-the-courts claim until after a prisoner’s
conviction has first been set aside); Holmes v. Grant, No. 03 Civ. 3426 (RJH)(RLE), 2006 WL
851753, at *12-13 (S.D.N.Y. Mar. 31, 2006) (section 1983 claim that the defendants caused
dismissal of prisoner’s habeas petition was barred by Heck).
First Amendment Right to the Free Flow of Mail
The Amended Complaint can also be read to assert a claim that the City violated
Plaintiff’s First Amendment right to the free flow of incoming and outgoing mail. 2 Plaintiff
alleges that correction officers regularly read his legal mail outside of his presence and that they
withheld, stole, threw away, and refused to send out his mail for months at a time. The City has
not responded to this claim.
Prisoners have a First Amendment right to the free flow of incoming and outgoing mail.
See Heimerle v. Attorney General, 753 F.2d 10, 12-13 (2d Cir. 1985). To establish a violation of
this right, the prisoner must show that the interference with his mail was both regular and
unjustified. See Davis, 320 F.3d at 351. “Restrictions on prisoners’ mail are justified only if
they ‘further[ ] one or more of the substantial governmental interests of security, order, and
rehabilitation . . . [and] must be no greater than is necessary or essential to the protection of the
particular governmental interest involved.” Id. (alterations in original) (quoting
Although this claim is not explicitly asserted in the Amended Complaint, as previously noted, the Court must
interpret the Amended Complaint “to raise the strongest claims that it suggests.” Hogan, 738 F.3d at 515.
Washington v. James, 782 F.2d 1134, 1139 (2d Cir. 1986)). “The First Amendment protects
prisoners’ access to mail directly, unlike the right of access to courts, which protects prisoners’
access to mail only derivatively and with respect to given claims.” Bellezza, 2011 WL 2848141,
at *5-7 (dismissing access-to-the-courts claim for failure to allege injury, but holding that
plaintiff adequately alleged a violation of his right to send and receive mail). It is thus not
necessary to allege actual injury when asserting a violation of one’s right to the free flow of mail.
See, e.g., Cancel v. Goord, No. 00 Civ. 2042 (LMM), 2001 WL 303713, at *4, 7 (S.D.N.Y. Mar.
29, 2001) (same); Amaker, 1999 WL 76798, at *3, 5-6 (same).
Plaintiff’s assertions that correction officers read, withheld, threw away, and refused to
send out his mail for months at a time adequately allege a constitutional violation. When
correction officers regularly and unjustifiably read prisoners’ mail, whether legal or non-legal, it
violates their First Amendment right to the free flow of incoming and outgoing mail. See, e.g.,
Heimerle, 753 F.2d at 13-14 (plaintiff stated a First Amendment claim where he challenged a
prison regulation that permitted guards to routinely read all incoming, non-legal mail); Bellezza,
2011 WL 2848141, at *6-7 (plaintiff stated a First Amendment claim where he alleged that the
defendants regularly read his incoming legal mail and withheld it).
Similarly, if officers
regularly and unjustifiably withheld or threw away Plaintiff’s mail, that would also violate his
First Amendment rights. See, e.g., Purcell v. Coughlin, 790 F.2d 263, 264-65 (2d Cir. 1986)
(plaintiff stated a claim where he alleged that the defendants refused to deliver periodicals to him
and interfered with his outgoing mail on one occasion); Moore v. Gardner, 199 F. Supp. 2d 17,
20, 25, 34-36 (W.D.N.Y. 2002) (plaintiff stated a First Amendment claim where plaintiff
accused the defendant of “withholding his mail, reading his mail, and disposing of his legal
In addition, Plaintiff has asserted that the interference with his mail continued for
approximately two years (Am. Compl. 2-3, 5), which is more than sufficient to allege that the
City’s conduct was regular. See Washington, 782 F.2d at 1139 (although pro se prisoner
specifically described only two instances of mail interference he had adequately alleged a
“continuing activity”). The City’s motion to dismiss is therefore denied as to Plaintiff’s claim
that it violated his First Amendment right to the free flow of incoming and outgoing mail.
The City contends that Plaintiff “has failed to allege a basis for municipal liability.”
(Def.’s Mem. of Law 7.) “[T]o hold a city liable under § 1983 for the unconstitutional actions
of its employees, a plaintiff is required to plead and prove three elements: (1) an official policy
or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.”
Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007) (alteration in original) (quoting
Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983)).
Although Plaintiff has not pointed to an official, written policy, it can reasonably be
inferred from the Amended Complaint that Plaintiff has alleged the existence of a policy or
custom which was established at the supervisory level or which was “so manifest as to imply the
constructive acquiescence of senior policy-making officials.” Sorlucco v. N.Y. City Police
Dep’t, 971 F.2d 864, 870-71 (2d Cir. 1992). Reading the Amended Complaint liberally, it
alleges that numerous correction officers withheld, threw away, stole, and refused to send out
Plaintiff’s mail regularly and without justification for approximately two years. (Am. Compl. 23, 5, 22-23, 26, 28-30, 32, 35-37.) Plaintiff asserts that the events occurred at two different
facilities and that he filed grievances and made repeated complaints. (Id. at 2-3, 5-6.) Plaintiff
explicitly refers to the existence of a “policy,” asserting that, when he complained to a correction
officer in the mail room “she gave me attitude about that[’]s the[ir] policy.” 3 (Id. at 5.)
Beyond Plaintiff’s own assertions, the signed witness statements incorporated into his
Amended Complaint support Plaintiff’s allegation regarding the existence of a policy or custom.
One statement alleges that “the mail lady” said she had read Plaintiff’s mail and that she was not
sending out Plaintiff’s mail, “[b]ecause her supervisors and courts told her she won’t get paid.”
(Am. Compl. 22.) Another alleges that “superiors and sub[ord]inates” have placed “a [l]imit on
legal mail and when you hit your max you can’t send mail to courts, [l]egal agencies and
witnesses” and that Plaintiff and other inmates were informed that they could not “send mail for
several months.” (Id. at 23.) Yet another attests that “they” were “holding [b]ack mail [be]cause
the[ir] supervisors and courts told them to or they don’t get paid.” (Id. at 35.)
Taking into account the liberal pleading standards applicable to pro se litigants, the Court
finds that Plaintiff has adequately stated a claim for municipal liability. In Carrasquillo v. City
of New York, 324 F. Supp. 2d 428, 437 (S.D.N.Y. 2004), a pro se prisoner asserted “that the
City [was] liable for causing his injuries . . . by failing to provide him with a seatbelt,” and the
district court concluded that “[r]ead charitably, Plaintiff’s complaint alleges that the City has
adopted the policy of not providing prisoners with adequate protection on corrections buses.”
See also Gachette v. Metro N. High Bridge, No. 12 Civ. 3838 (AJN), 2013 WL 144947, at *5-6
(S.D.N.Y. Jan. 14, 2013) (inferring from pro se plaintiff’s assertions of pay- and workassignment disparities that he had alleged discrimination due to a municipal policy or custom).
Plaintiff’s Amended Complaint therefore meets the standard for a pro se litigant to assert
municipal liability in this Circuit.
Plaintiff also refers to the personal involvement of the former Kings County District Attorney and two Assistant
District Attorneys. (Am. Compl. 3, 27, 31.) In addition to the fact that the District Attorney is a representative of
New York State, not the City, see Baez v. Hennessy, 853 F.2d 73, 77 (2d Cir. 1988), other than bare conclusory
allegations, Plaintiff has not alleged any facts from which the Court could plausibly infer that these individuals were
involved in the alleged interference with Plaintiff’s mail.
As described above, Plaintiff seeks, among other things, $10 million in compensatory
damages and $20 million in punitive damages. (Id. at 4, 7.) The Prison Litigation Reform Act
precludes plaintiffs from recovering damages “for mental or emotional injury suffered while in
custody without a prior showing of physical injury.” 42 U.S.C. § 1997e(e). Although Plaintiff
alleges that, in addition to “[e]motional distress, emotional d[e]spair, mental anguish, post
traumatic stress disorder, . . . [and] paranoia disorder,” he also suffers from “kidney diseases”
and other physical injuries, he has not explained how these alleged physical injuries are
connected in any way to the asserted interference with his mail. (Am. Compl. 3.) Accordingly,
Plaintiff is barred from recovering damages for mental or emotional injuries.
Plaintiff is also precluded from recovering punitive damages from the City of New York
under § 1983. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981); Ciraolo v.
City of New York, 216 F.3d 236, 242 (2d Cir. 2000).
He is similarly unable to obtain
declaratory or injunctive relief, because he is no longer in the custody of the City and those
claims are thus moot. See, e.g., Young v. Coughlin, 866 F.2d 567, 568 n.1 (2d Cir. 1989). If
Plaintiff prevails in this action, however, he may be entitled to other relief, such as nominal
damages 4 or damages for the loss of any property. See Thompson v. Carter, 284 F.3d 411, 41820 (2d Cir. 2002). Therefore, his lawsuit need not be dismissed at this stage.
For the foregoing reasons, Plaintiff’s claim that the City violated his constitutional right
of access to the courts is dismissed. Plaintiff’s First Amendment claim may proceed under the
theory that he may be entitled to nominal or compensatory damages for the City’s alleged
Nominal damages can be defined as “[a] trifling sum awarded when a legal injury is suffered but there is no
substantial loss or injury to be compensated.” 447 Black’s Law Dictionary (9th ed. 2009).
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