Alexander, et al v. Deming, et al
Filing
66
ORDER granting in part and denying in part 44 Motion for Summary Judgment; denying 64 Motion. Signed by Hon. H. Kenneth Schroeder, Jr. on April 15, 2009. (APG)
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
EDWARD R.L. ALEXANDER, 99-A-4752, Plaintiff, v. CORRECTIONAL OFFICER DEMING, et al., Defendants. 03-CV-0147(Sr)
DECISION AND ORDER Pursuant to 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct any and all further proceedings in this case, including entry of final judgment. Dkt. #15.
Plaintiff filed this pro se action seeking relief pursuant to 42 U.S.C. § 1983. Dkt. #1. Plaintiff alleges that while an inmate at the Southport Correctional Facility ("Southport"), his rights pursuant to the First, Sixth1, Eighth and Fourteenth Amendments to the United States Constitution were violated. Id. Currently before the Court is a motion for summary judgment on plaintiff's claims by defendants Donahue, Murphy and Demming. Dkt. #44. Also before this Court is plaintiff's motion for protection from retaliation seeking transfer out of Southport. Dkt. #64. For the following
Plaintiff's conclusory allegation that defendants violated his Sixth Amendment rights, without more, is insufficient and such a claim fails as a matter of law.
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reasons, defendants' motion for summary judgment is granted in part and denied in part and plaintiff's motion for protection from retaliation is denied.
BACKGROUND Plaintiff, proceeding pro se, filed this action on February 24, 2003, against defendants Michael McGinnis 2, "Correctional Officer Demming" (incorrectly spelled Deming in the complaint), "Correctional Lieutenant Donahue" and "Correctional Officer Murphy," pursuant to 42 U.S.C. § 1983, seeking $2 million in compensatory damages and to be removed from the Special Housing Unit and returned to the general population in one of the following correctional facilities, Sing Sing, Green Haven, or Eastern. Dkt. #1. Specifically, plaintiff complains that while he was housed at Southport, defendant Demming interfered with plaintiff's incoming/outgoing mail beginning in November 2002 and continuing through December 2002, in violation of his First, Sixth3 and Fourteenth Amendment rights. Id. Plaintiff further alleges that defendant Demming harassed plaintiff and that on December 26, 2002, defendant Demming issued a misbehavior report in retaliation for plaintiff making complaints about him. Id. As against defendant Murphy, plaintiff alleges that he denied plaintiff his property when he was transferred to a different cell and further, that defendant Murphy destroyed plaintiff's property, including religious items in violation of plaintiff's First
On January 13, 2004, this Court granted defendant McGinnis' motion to dismiss the complaint. Dkt. #30.
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2
See footnote 1, supra. -2-
Amendment rights. Finally, plaintiff alleges that on January 3, 2003, defendant Donahue used excessive force. Id.
Interference with Incoming/Outgoing Mail and Denial of Access to Courts Beginning on or about November 22, 2002 and continuing through December 2002, plaintiff claims that defendant Demming interfered with his incoming and outgoing mail. Dkt. #1. Specifically, plaintiff alleges: 1) On or about November 22nd, 2002 Officer Deming [sic] starting [sic] taking inmate Edward R.L. Alexander #99A4752 (hereafter Petitioner) incoming mail after the facilities mailroom sends it to the housing area for it to be handed out by the Correctional Officer to the Inmate in [sic] which it came. 2) Petitioner notice to [sic] he was not receiving any mail and thought that something had happened to his loveones [sic]. *** 5) On or about December 10th, 2002 Officer Deming [sic] stood in front of the Petitioner [sic] cell and alouded [sic] told the Petitioner so that all other inmates can hear that he has been taking the Petitioner incoming mail for the pass [sic] two weeks or so. 6) To show and prove that he in fact was [sic] his [sic] started calling the Petitioner by a nickname that he is only known to [sic] by his Mother, Sisters, And wife which [sic] "Snuggles." *** 9) Starting that night Officer Deming [sic] stopped picking up the Petitioner's out going mail so that the Petitioner can [sic] write to anyone to let them know what he was doing ... *** 40) On [sic] the week of December 18th 2002 the petitioner received by legal mail a copy of a [sic] Application for an -3-
Extension of Time submitted by Stephen F. Gawlick Assistant Attorney General of Eliot Spitzer Attorney General of the State of New York. *** 42) The Petitioner wished to answer to [sic] the Court on the Assistant Attorney General Application ... 43) The Petitioner was denied his right to do so by Officer Deming [sic] who refused to pick up the Petitioner's out going mail. Dkt. #1. Plaintiff's only allegation of injury with respect to his denial of access to the courts claim is that he was prohibited from responding to a motion for an extension of time filed in Alexander v. Goord, 02-CV-589. Dkt. #45, ¶ 8. The motion for an extension of time filed on December 18, 2002, was granted by United States District Judge William M. Skretny on January 2, 2003. Id. at ¶ 10; Dkt. #58, ¶¶ 7-8. Notably, there was no separate order from Judge Skretny specifically providing plaintiff with the opportunity to respond or scheduling oral argument. Id. Plaintiff claims that "[i]f the petitioner was able to mail out, out going mail he would have been able to answer the motion and the judgment might have went in his favor and not have been granted." Dkt. #1, ¶ 46.
Harassment of Plaintiff/Retaliation Plaintiff further alleges that defendant Demming harassed him by turning out his lights and verbally harassing him. Dkt. #1, ¶ 4; Dkt. #45, ¶ 12. In support of their motion for summary judgment, defendants submit that plaintiff testified that defendant Demming never physically abused plaintiff. Dkt. #45, ¶ 12. Plaintiff claims -4-
that in furtherance of his threats to do so, defendant Demming issued a Misbehavior Report to plaintiff on December 26, 2002, in retaliation for plaintiff making complaints against defendant Demming. Specifically, the complaint alleges, [o]n December 26, 2002 Officer Deming [sic] wrote the petitioner a Misbehavior Report that he made up against the Petitioner which he threaten the petitioner that he was going to do (the misbehavior was a Tier II). The Petitioner informed Sergant [sic] Furmen [sic] and Sergant [sic] Osborne counseler [sic] Ms. Klapp that Officer Deming [sic] threaten to write and make up Misbehavior Report on his [sic] so that the Petitioner will be removed from going up to a higher level and put on a lower level ... a week before he did it. Dkt. #1, ¶¶ 35-36.
Excessive Use of Force Plaintiff's complaint alleges that on January 3, 2003, defendant Donahue presided over a Tier II disciplinary hearing. Dkt. #1, ¶ 37. Plaintiff further alleges that during the hearing, [o]nce Lt Donahue stopped the hearing tape to get the Petitioner witnesses in [sic] which he asked for. While leaving the hearing room Lt Donahue raced after the Petitioner and shoved him around and hitting the petitioner's head against the wall behind him and started choking the Petitioner with his left hand around the Petitioner's neck. While choking the petitioner Lt. Donahue started stouting [sic] `you are sueing [sic] me you asshole' `I'll kill you' `My officer's [sic] will kill you!' Lt. Donahue kept choking the Petitioner who was hand cuff [sic] the hold [sic] time of the assault upon him by Lt. Donahue. Lt. Donahue then again hit the Petitioners [sic] head against the wall behind him. Dkt. #1, ¶¶ 47-50.
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Denial and Destruction of Property Plaintiff alleges that he was denied property when he was moved from one cell to another while housed at Southport. Specifically, plaintiff alleges, "[t]he Petitioner was then take [sic] to level 1 on the First Floor where he was put in a cell with no sheets, no matess [sic], no personal property, nothing The Petitioner asked Officer Murphy who is the study [sic] 7am to 3pm officer of C-1 company where the Petitioner was housed for his property and sheets tolet [sic] paper etc. The petitioner was denied the above for 3 days. Petitioner was without mattess [sic], sheets, toothpaste, books etc." Dkt. #1, ¶¶ 53 - 55. In support of their motion for summary judgment, defendants rely on portions of plaintiff's deposition testimony, wherein plaintiff testified that he was denied property on January 3, 2003, from 11:00 a.m. until midnight. Dkt. #45, ¶ 15. Thus, as revealed during plaintiff's deposition, the total time plaintiff claims he was denied these items was approximately twelve to thirteen hours. Dkt. #45, ¶ 16; Dkt. #48, p.35.
On or about January 8, 2003, plaintiff alleges that defendant Murphy destroyed his "Holy Qu rān, Kufi, and Prayer Rug, along with magazines, books, and personal photos, by cutting the [sic] up."4 Dkt. #1, ¶ 57. Plaintiff further alleges that defendant Murphy then placed the cut up photographs in a manilla envelope and threw it into plaintiff's cell. Id. at ¶ 58. Plaintiff claims that he wrote to the Superintendent,
In opposition to defendants' motion for summary judgment, plaintiff states that defendant Murphy's conduct, destruction of his "Holy Qu rān and Prayer Rug" took place on January 29, 2003. Dkt. #59, ¶ 5. -6-
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Sergeant Furman and the Inmate Grievance Review Committee ("IGRC") concerning defendant Murphy's actions and "nothing was done." Dkt. #1, ¶ 59. Plaintiff further claims that, "[d]uring the time of November 22, 2002 to January 4, 2003 the Petitioner had to inform the I.G.R.C., Superintendent, Deputy Superintendent, Brian Malone, Inspector General, and others in Albany by other inmate's writing them for him (the petitioner) suffered lost [sic] of property, stressed [sic] of not being able to contact family and courts." Dkt. #1, ¶ 61.
In opposition to defendants' motion for summary judgment, plaintiff claims that he was unable to file a grievance during the period January 29, 2003 to February 24, 2003 (when he left Southport) "because no property was given to him for him to know the damage and that he still had the proof until he was transferred on Feb 24 2003." Dkt. #58, ¶ 13. Plaintiff was familiar with the grievance process as he filed Grievance No. SPT-25679-03 on January 7, 2003 setting forth a number of complaints concerning staff misconduct at Southport. On January 24, 2003, plaintiff did, however, file a grievance, Grievance No. SPT-25822-03, complaining that on January 8, 2003, defendant Murphy "wrongfully stored plaintiff's books." Dkt. #47, pp.34-35. Grievance No. 25822-03 does not, however, set forth any complaint concerning defendant Murphy's destruction of plaintiff's property.5 Id.
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See footnote 4, supra. -7-
DISCUSSION AND ANALYSIS Summary Judgment Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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." Fed.R.Civ.P. 56(c). "In reaching this determination, the court must assess whether there are any material factual issues to be tried while resolving ambiguities and drawing reasonable inferences against the moving party, and must give extra latitude to a pro se plaintiff." Thomas v. Irvin, 981 F. Supp. 794, 798 (W .D.N.Y. 1997) (internal citations omitted).
A fact is "material" only if it has some effect on the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir. 1998). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248; see Bryant v. Maffucci, 923 F.2d 979 (2d Cir.), cert. denied, 502 U.S. 849 (1991).
Once the moving party has met its burden of ?demonstrating the absence of a genuine issue of material fact, the nonmoving party must come forward with enough evidence to support a jury verdict in its favor, and the motion will not be defeated merely upon a
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