Mahon v. Doe et al
Filing
47
OPINION AND ORDER re: 46 MOTION for Leave to File Surreply to Defendant's Reply filed by Kalonji Mahon, 36 MOTION to Dismiss filed by Roslyn McCall, Kimberly Williams, Deborah Moultrie. Defendants' motion to dismiss is grant ed in its entirety. Plaintiff has not alleged a plausible claim for interference with legal mail in violation of his right of access to the courts, nor has he plausibly alleged that the denial of his grievance - erroneous or not - amounted to a viola tion of any Due Process rights. Accordingly, Plaintiff's Amended Complaint is dismissed. The Clerk of Court is respectfully requested to close the motions pending at ECF numbers 36 and 46, and to close the case. SO ORDERED. (Signed by Judge Ronnie Abrams on 9/15/2014) (ajs)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
lSDC-SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#: _ _ _ _ __.,.___
DA TE FILED: Of I 15 I j \../
I
KALONJJ MAHON,
Plaintiff,
-against-
No. 13 Civ. 2076 (RA)
NYC Corrections Officer ROSSLYN
MCCALL, NYC Corrections Officer
KIMBERLY WILLIAMS, DEBORAH
MOULTRIE, Grievance Supervisor at NYC
Corrections/Rikers Island,
OPINION AND ORDER
Defendants.
RONNIE ABRAMS, United States District Judge:
Pro se Plaintiff Kalonji Mahon brings this 42 U.S.C. § 1983 action against Defendants,
two Correction Officers ("COs") and a grievance supervisor employed by the New York City
Department of Correction ("DOC"). Plaintiff alleges the two COs denied his right of access to the
courts by deliberately mishandling his legal mail while he was in custody at the George R. Vierno
Center ("GRVC") on Rikers Island. Plaintiff also alleges that the grievance he filed in response
to this deliberate mishandling was improperly denied by the Rikers grievance supervisor, in
violation of his due process rights.
All three Defendants jointly move to dismiss Plaintiff's
complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Defendants'
motion to dismiss is granted.
I.
BACKGROUND
For the purposes of deciding this motion, the Court accepts as true all facts alleged by
Plaintiff, see Kassner v. 2nct Ave Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007), including
those facts alleged in Plaintiff's opposition papers, see Nielsen v. Rabin, 746 F.3d 58, 62-64 (2d
Cir. 2014) (considering facts alleged in prose plaintiff's opposition papers in determining whether
motion to dismiss or order granting leave to amend plaintiff's complaint was proper); Gill v.
Mooney, 824 F.2d 192, 195 (2d Cir. 1987) (considering facts alleged in pro se plaintiff's
opposition papers in deciding motion to dismiss). 1
Plaintiff Mahon first alleges that"[ o Jn or around July 12, 2012," he visited the mail room
at GRVC to send a piece of legal mail (Am. Com pl. at 3), either a letter requesting additional time
to file a prose motion to set aside the verdict in a then-active state criminal court case (Am. Compl.
Ex. E), or the underlying motion itself, (Am. Compl. Ex. F; Pl. 's Opp. at 1). Defendant CO
Rosslyn McCall, the on-duty mail officer that day, provided Plaintiff a "certified return receipt
slip" and told him that his letter could not be mailed until he completed an Inmate Request for
Withdrawal of Funds form authorizing the withdrawal of funds sufficient to cover postage from
his account. (Am. Compl. at 3.) Plaintiff eventually returned to the mail room, where he handed
CO McCall his letter and was told that it would "go out as soon as possible." (Id.) The Amended
Complaint appears to allege that CO McCall was aware both that the mail in question was legal
mail and that it was urgent-Plaintiff claims that the letter was due in state court by the week of
July 16, 2012. (Id.)
When Plaintiff appeared m state court on July 16, 2012, however, he was allegedly
informed that his 'motion' had not arrived. (Id.) It is unclear which motion Plaintiff claims had
not arrived-his letter motion for an extension of time or the underlying motion to set aside the
1
Also pending before the Court is Plaintiff's March 24, 2014 motion to file a surreply in response to
Defendants' joint reply memorandum of law. (ECF No. 46). Because Plaintiff has indicated that his surreply would
respond only to Defendants' charge that he raised new facts in his opposition papers (id.), and because the Court has
agreed to consider those facts in deciding the pending motion to dismiss, a surreply is unnecessary. Accordingly,
the Court exercises its discretion in denying Plaintiff's motion to file a surreply. See Kapiti v. Kelly, No. 07 CIV.
3782(RMB)(KNF), 2008 WL 754686, at *1 n. I (S.D.N.Y. Mar. 12, 2008) ("[T]he decision to permit a litigant to
submit a surreply is a matter left to the Court's discretion .... "), aft'd, 07 CIV. 3782, 2008 WL 1882652 (S.D.N.Y.
Apr. 28, 2008).
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verdict itself-but the record indicates that he was nonetheless granted an extension until July 24,
2012 to file his prose motion pursuant to New York State Criminal Procedure Law ("CPL") §
330.30. (Id.)
Sometime thereafter, Plaintiff returned to the mail room at GRVC to inquire as to the status
of the mail he had sent on July 12, 2012. (Id.) Defendant CO Kimberly Williams, the officer
assigned to the mail room that day, informed Plaintiff that the status of his mail was "unknown."
(Id.) However, on August 6, 2012, Plaintiff's letter of July 12, 2012 was returned to him by CO
McCall, who told him that "it was the wrong form even though she had supposedly processed [his]
legal mail." (Id.)
Plaintiff alleges that the handling of his mail by Defendants McCall and Williams was
"grossly negligent" and amounted to "deliberate indifference and disregard." (Id. at 4.) He claims
that this indifference and disregard "caused plaintiff to miss deadline by court in order to preserve
and address issues of constitutional and due process dimensions." (Id. at 4.) He further contends
that, had "plaintiff's pro-se [motion to set aside the verdict] ... been received by court in time
plaintiff would have been entitled to 'some form of relief' as a clear matter of law, And would
have been pending new trial on bail." (Id. at 4.) A September 10, 2012 New York State Supreme
Court opinion attached to Plaintiff's opposition papers makes it clear, however, that his motion to
set aside the verdict was received by the state court, as the court's opinion explicitly relies upon
sworn factual allegations made therein. (Pl. 's Opp. Ex. B, at 2 n.1.)
Nevertheless, on August 20, 2012, Plaintiff filed a formal grievance in this matter with
Defendant Deborah Moultrie, the GRVC Grievance Supervisor. (Am. Comp!. at 4.) On August
22, 2012, Plaintiff received notice, signed by Ms. Moultrie, that his complaint was "non-grievable"
because it had not been filed within 10 days of the incident in question, as DOC requires. (Am.
3
Comp!. Ex. B.) Plaintiff refused to sign the form acknowledging the denial of his complaint (id.),
arguing that Ms. Moultrie had erroneously considered calendar, and not business days in
calculating this 10-day filing period, (Am. Comp!. at 4 ). On December 28, 2012, Plaintiff again
raised this concern in a letter to Ms. Moultrie, in which he also alleged that she "purposefully
mislead [him] and never forwarded the grievance"-or his claim that the grievance was wrongfully
denied-to the 'warden,' despite promising to do so. (Am. Comp!. Ex. C-1.)
An exhibit attached to Plaintiffs Amended Complaint indicates that he also sought redress
for his right of access to the courts claim with the City of New York, filing a notice of claim and
demand with the Office of the Comptroller on October 24, 2012. (Am. Comp!. Ex. D.) The record
does not indicate whether Plaintiff was successful in pursuing this claim.
Plaintiff filed his first complaint with this Court on March 27, 2013. (ECF No. 2.) He was
granted leave to amend, and filed an amended complaint ("Am. Comp!.") on September 14, 2013,
which alleges the facts recounted above. In his opposition papers, filed on February 24, 2014 in
response to Defendants' motion to dismiss, Plaintiff provides a more detailed account of the
incidents alleged in his Amended Complaint, and attaches several new exhibits, among them the
denial of Plaintiff's motion to set aside the verdict in his state criminal court proceeding. (Pl.' s
Opp. Ex. B.) Plaintiff has requested an array of injunctive relief for his alleged constitutional
injuries, as well as $10 million in compensatory damages and $2 million in punitive damages.
(Am. Comp!. at 7.)
II.
APPLICABLE LEGAL STANDARD
"To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Igbal, 556 U.S.
662, 678 (2009) (internal quotation marks omitted). However, in "considering a motion to dismiss
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... the court is to accept as true all facts alleged in the complaint ... [and] draw all reasonable
inferences in favor of the plaintiff." Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d
Cir. 2007). "This rule applies with particular force where plaintiff alleges civil rights violations
or where the complaint is submitted prose." Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir.
1998). Indeed, "[ w]here, as here, the complaint was filed pro se, it must be construed liberally to
raise the strongest arguments it suggests. Nonetheless, a prose complaint must state a plausible
claim for relief." Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013) (internal citations, quotation
marks, and brackets omitted).
DISCUSSION
III.
Plaintiff's Amended Complaint raises two distinct claims: (l) that Defendants McCall and
Williams interfered with his legal mail in violation of his constitutional right of access to the courts,
and (2) that Defendant Moultrie violated his due process rights by erroneously denying his right
of access to a meaningful prison grievance procedure.
A. Rights of Access to the Courts
The Supreme Court has recognized that prisoners have a right of access to the courts, a
right alternately grounded in the "Article IV Privileges and Immunities Clause, the First
Amendment Petition Clause, the Fifth Amendment Due Process Clause, and the Fourteenth
Amendment Equal Protection, and Due Process Clauses." Christopher v. Harbury, 536 U.S. 403,
414-415 & n.12 (2002) (internal citations omitted); see also Morello v. James, 810 F.2d 344, 346
(2d Cir. 1987).
Tampering with prison mail implicates this right where "the tampering
unjustifiably chilled the prisoners' right of access to the courts or impaired the legal representation
received." Davis v. Goard, 320 F.3d 346, 351 (2d Cir. 2003). 2
2
To the extent Plaintiff also alleges tampering with mail in violation of his constitutional right to the free
flow of incoming and outgoing mail, this argument is unavailing; Plaintiff has only alleged a single instance of
5
To state such a claim, a plaintiff "must allege that the defendant took or was responsible
for actions that hindered a plaintiffs efforts to pursue a legal claim." Id. In addition, a complaint
must allege actual injury and specify which legal matter Defendant's alleged tampering hindered
Plaintiff 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 a showing of "actual injury" requires a plaintiff to
"demonstrate that the defendant's conduct frustrated the plaintiffs efforts to pursue a nonfrivolous
claim.")
Here, Plaintiff fails to allege any cognizable injury. Whether he claims that the mishandling
of his legal mail delayed the state criminal court's receipt of his letter requesting additional time
to file a prose motion to set aside the verdict or the underlying motion itself, his opposition papers
and the attachment thereto flatly contradict such allegations. In particular, in a footnote to the state
court's September 10, 2012 decision denying Plaintiffs CPL§ 330.30 motion, the court indicates
that it reviewed Plaintiffs prose motion in rendering its decision. (Id. ("However, prior to defense
counsel's motion, defendant [Mahon] had filed a prose motion, which contained sworn factual
allegations raising this issue.").) Plaintiff also expressly notes in his opposition papers that his pro
se CPL§ 330.30 motion did, eventually, reach the state court-on August 14, 2014, nearly a full
month before the state court's decision denying his motion. (Pl.'s Opp. at 2.)
As the documents make clear that the state court did indeed receive and consider his pro
se motion to set aside the verdict prior to rendering a decision, (Pl.' s Opp. Ex. B at 2, n. l ), Plaintiff
is unable to establish that any harm resulted from Defendants' alleged tampering. At best, Plaintiff
alleges a delay in communicating with the state court. A mere delay, however, "in being able to
work on one's legal action or communicate with the courts does not rise to the level of a
tampering. See Davis 320 F.3d at 351 ("[A]n isolated incident of mail tampering is usually insufficient to establish a
constitutional violation.").
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constitutional violation."
Jermosen v. Coughlin, 877 F.Supp. 864, 871 (S.D.N.Y. 1995).
Accordingly, Plaintiff's right of access to the courts claim must be dismissed. 3
B. Due Process Violations
In reviewing a plaintiff's Due Process claims, a court "must first determine ... whether
plaintiffs possessed a protected liberty or property interest." Sealed v. Sealed, 332 F.3d 51, 55 (2d
Cir. 2003). Prisoners do "have the constitutional right to petition the Government for redress of
their grievances." Hudson v. Palmer, 468 U.S. 517, 523 (1984). Notwithstanding this right,
however, a "prisoner has no constitutional right to a prison grievance procedure or to have his
grievance investigated." Hayes v. County of Sullivan, 853 F.Supp. 2d 400, 434 (S.D.N.Y. 2012).
See also Alvarado v. Westchester County, 13 Civ. 2515, 2014 WL 2217873, *3 (S.D.N.Y. Apr.
24, 2014) (quoting Shell v. Brzezniak, F.Supp. 2d 362, 369-70 (W.D.N.Y. 2005) ("[I[nmate
grievance programs created by state law are not required by the Constitution.").
"[C]onsequently[,] allegations that prison officials violated these procedures do not give
rise to a cognizable Section 1983 claim." Id.; see also Brown v. Graham, 4 70 F. App'x 11, 13 (2d
Cir. 2012) ("[Plaintiff's] argument that he has a federally protected liberty interest in the state's
compliance with its own prison grievance procedures is meritless."). Thus, whether Plaintiff's
claim is construed to argue that he was denied access to a meaningful prison grievance procedure
or that Defendant Moultrie failed to properly follow the prescribed DOC procedure, he has not
alleged a protected liberty interest, and so his claim must be dismissed. 4
3
Because Plaintiff alleges no cognizable injury, it is unnecessary to address whether plaintiffs raising right
of access to the courts claims must allege more than mere negligence by state or local officials, as Defendants argue.
4
In light of the Court's ruling, it is unnecessary to reach Defendants' argument that Plaintiff failed to exhaust
his administrative remedies.
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IV.
CONCLUSION
Defendants' motion to dismiss is granted in its entirety. Plaintiff has not alleged a plausible
claim for interference with legal mail in violation of his right of access to the courts, nor has he
plausibly alleged that the denial of his grievance-erroneous or not-amounted to a violation of
any Due Process rights. Accordingly, Plaintiff's Amended Complaint is dismissed.
The Clerk of Court is respectfully requested to close the motions pending at ECF numbers
36 and 46, and to close the case.
SO ORDERED.
Dated:
September 15, 2014
New York, New York
United States District Judge
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