Anderson v. Bender et al
Filing
56
DECISION AND ORDER: Defendants' 46 Motion for Summary Judgment is GRANTED and this case is dismissed with prejudice. The Clerk of Court will enter judgment and close this case. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 7/19/2019. A copy of the NEF and Decision and Order were mailed to Plaintiff. (AFM)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LA SEAN ANDERSON,
Plaintiff,
v.
Case # 15-CV-6735-FPG
DECISION AND ORDER
AMY BENDER, et al.,
Defendants.
INTRODUCTION
Pro se Plaintiff La Sean Anderson seeks relief under 42 U.S.C. § 1983 for alleged
violations of his First Amendment rights while he was an inmate at Lakeview Shock Incarceration
Facility. ECF No. 1. Specifically, he alleges that Defendants Amy Bender and Debra Brakefield
denied him access to the courts when they interfered with his legal mail. Plaintiff also alleges that,
after he filed grievances about them, Defendants retaliated against him by interfering with his mail
again.
On April 5, 2019, Defendants filed a Motion for Summary Judgment, which Plaintiff
opposes. ECF Nos. 46, 50. For the reasons that follow, the Court grants Defendants’ motion and
dismisses this case.
DISCUSSION
I.
Summary Judgment Standard
A court grants summary judgment when the moving party demonstrates that there are no
genuine issues of material fact and that it is entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56(a)-(b); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Hicks v. Baines, 593 F.3d
159, 166 (2d Cir. 2010). It is the movant’s burden to establish the nonexistence of any genuine
issue of material fact. If there is record evidence from which a reasonable inference in the non-
1
moving party’s favor may be drawn, a court will deny summary judgment. See Celotex, 477 U.S.
at 322.
Once the movant has adequately shown the absence of a genuine issue of material fact, the
burden shifts to the nonmoving party to present evidence sufficient to support a jury verdict in its
favor, without simply relying on conclusory statements or contentions. Goenaga v. March of
Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995) (citing Fed. R. Civ. P. 56(e)).
“[F]actual issues created solely by an affidavit crafted to oppose a summary judgment motion are
not genuine issues for trial.” Hayes v. N.Y. City Dep’t of Corr., 84 F.3d 614, 619 (2d Cir. 1996)
(quotation marks omitted). Here, in light of Plaintiff’s pro se status, the Court will construe his
opposition papers liberally “to raise the strongest arguments that they suggest.” Triestman v. Fed.
Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2009) (quotation marks omitted).
II.
Undisputed Facts
A.
Access to Courts
The Appellate Division, Third Department, affirmed Plaintiff’s conviction and the New
York Court of Appeals denied his application for leave to appeal. See People v. Anderson, 118
A.D.3d 1137 (3d Dep’t 2014); People v. Anderson, 24 N.Y.3d 1000 (2014). Plaintiff wanted to
move for reconsideration of this denial and to get an exhibit from his trial attorney, George Mehm,
to attach to the motion. ECF No. 47-3 at 33-35, 45-47.
On October 28, 2014, Lakeview received a letter from Plaintiff’s appellate counsel,
Donnial Hinds, about the reconsideration motion. ECF No. 47 ¶ 18; ECF No. 47-8 at 8. The letter
was delayed because it originally went to Five Points Correctional Facility, where Plaintiff was
previously confined. ECF No. 47-3 at 15, 17-18. Other than the return address reading “D. Hinds,
Esq.,” there was no indication that it was legal mail and therefore it was opened per DOCCS’s
2
policies for non-privileged correspondence. ECF No. 50 at ¶ 17. Once opened, mailroom
personnel realized the error and resealed it, entered it in the Privileged Correspondence Log, and
noted the error. ECF No. 47 ¶ 19. Defendant Brakefield, a Senior Mail Supply Clerk, wrote “sorry
didn’t realize it was legal opened in error” on the envelope and Plaintiff received it the next
morning. Id. Plaintiff did not know who opened the letter and did not believe it was done
intentionally. Id. ¶ 20.
Between November 5 and November 19, 2014, Plaintiff attempted to mail letters to Hinds
and Mehm, but they were returned to him because he: (1) did not mark most of his envelopes as
legal mail; (2) attempted to purchase more postage even though he was not eligible to do so; and
(3) used up his allotment of five free legal mailings per week. ECF No. 47 ¶¶ 26-33. Mailroom
staff advised Plaintiff of the first two issues on multiple occasions. Id. ¶ 33. Both letters were
eventually sent, along with 21 other pieces of legal mail from Plaintiff between November 1 and
November 28, 2014. Id. ¶¶ 38-40. The above delays and Defendants mistakenly opening the letter
from Hinds led Plaintiff to file his reconsideration motion pro se, which the Court of Appeals
denied. Id. ¶¶ 19, 34-35; see Anderson, 24 N.Y.3d at 1117.
B.
Retaliation
Because his request for leave to appeal and reconsideration motion were denied, Plaintiff
wanted to file either a N.Y. C.P.L.R. Article 78 proceeding or a federal habeas corpus petition, and
he sought assistance from Prisoner Legal Services of New York (“PLS”) to do so. PLS sent
Plaintiff a letter with general advice on initiating an Article 78 proceeding and filing a habeas
corpus petition, but it did not agree to represent Plaintiff. The letter was treated as regular mail
and opened pursuant to DOCCS’s policies. Plaintiff testified that the opening of this letter did not
3
adversely impact him and that he did not know who sorted and opened it. ECF No. 47 ¶¶ 41-45;
ECF No. 47-3 at 58-59.
On November 17, Plaintiff wrote to Inmate Grievance Program Director Bellamy, and the
letter was opened and returned to him the same day. The letter was successfully mailed to Bellamy
on the second attempt. ECF No. 47 ¶¶ 47-48. In response to Plaintiff’s grievance about this event,
Defendant Brakefield stated that the outgoing mail log showed the letter as being sent on
November 17 and that she had no information suggesting it was returned to Plaintiff. Id. ¶ 51.
Plaintiff testified that the opening of this letter did not adversely impact him, except that he felt
like his privacy had been violated. Id. ¶ 48; ECF No. 47-3 at 75.
About one month later, Plaintiff received a letter from the New York Court of Claims
regarding the status of his case. ECF No. 47-3 at 76-77. The letter was treated as regular mail and
delivered to him opened. ECF No. 47 ¶ 52; ECF No. 47-3 at 75-77. Plaintiff filed a grievance and
Defendant Brakefield responded that there was no record of opening the letter and that if it was
opened it was a mistake. Brakefield also said that there were trainees in the mailroom and that the
letter may have “inadvertently been processed as regular mail.” ECF No. 47 ¶ 56. Plaintiff
testified that the opening of this letter did not adversely impact him, except that he felt like his
privacy had been violated. Id. ¶ 55; ECF No. 47-3 at 83.
III.
Analysis
A.
Denial of Access to Courts
A correctional facility must provide an inmate with meaningful access to the courts,
Bounds v. Smith, 430 U.S. 817, 828 (1977), but the limitation of a prisoner’s access to legal
materials, without more, does not state a constitutional claim. Jermosen v. Coughlin, 877 F. Supp.
4
864, 871 (S.D.N.Y. 1995) (stating that the Constitution requires only “reasonable access to the
courts” (citation omitted)).
Moreover, a plaintiff must show that he has suffered, or will imminently suffer, actual
harm; that is, that he was “hindered [in] his efforts to pursue a legal claim.” Lewis v. Casey, 518
U.S. 343, 351(1996); accord Morello v. James, 810 F.2d 344, 347 (2d Cir. 1987). Thus, a plaintiff
must show that he suffered actual injury traceable to the prison official’s conduct. To do so, he
must show that a “nonfrivolous legal claim had been frustrated or was being impeded” due to the
prison official’s actions. Lewis, 518 U.S. at 351-52. A delay in communicating with counsel does
not “amount to a constitutional deprivation of access.” Brown v. Williams, 95 CV 3872 (SJ), 1998
WL 841638, at *5 (E.D.N.Y. Dec. 4, 1998).
1.
Letters to and from Attorneys
Defendants are entitled to summary judgment on this claim because Plaintiff provides no
evidence suggesting that the delays or issues with his legal mail caused him actual injury.
Plaintiff asserts that having to file his reconsideration motion pro se constitutes actual
injury, but he cites no record evidence indicating that he was prejudiced when Defendants opened
the letter from Hinds. Hinds already applied for leave to appeal, which the Court of Appeals
denied. Plaintiff’s pro se reconsideration motion raised the same issues as those raised in Hinds’s
application for leave to appeal. Compare ECF No. 47-11 (Hinds’s letter to the Court of Appeals),
with ECF No. 1 at 27-28 (Plaintiff’s letter to the Court of Appeals). Plaintiff’s reconsideration
motion may have been delayed, but it was eventually filed. There are also no facts suggesting that
Hinds agreed to file a reconsideration motion on Plaintiff’s behalf. Plaintiff successfully accessed
the Court of Appeals, and he raises no genuine issue of material fact indicating that filing the
motion pro se prejudiced him.
5
Plaintiff also alleges that the trial exhibit he wanted from Mehm would have shown
“extraordinary and compelling circumstances” necessary to raise new issues on appeal under the
New York Court of Appeals Rules of Practice. Plaintiff asserts, without support, that this exhibit
would have met that burden. But Plaintiff must use evidence, not conjecture and speculation, to
show that a genuine issue of material fact exists as to whether not having this exhibit caused him
actual harm.
Accordingly, because Plaintiff has failed to raise a triable issue of fact as to whether he
suffered actual injury, his denial of access to the courts claim related to his correspondence with
Hinds and Mehm must be dismissed.
2.
Letters from PLS and to Bellamy
Plaintiff also claims that a letter from PLS was opened and treated as regular mail, and that
a letter he tried to send to Bellamy was opened and returned to him. ECF No. 1 at 11-15; ECF No.
47 ¶¶ 41-43, 47-51. Plaintiff claims that Defendants interfered with these letters to discourage him
from filing grievances. ECF No. 1 at 12, 14.
To the extent Plaintiff alleges that these letters denied him access to the courts, he has not
raised a genuine issue of fact as to whether he suffered actual harm. Plaintiff testified that, other
than feeling like his privacy was violated, Defendants opening those letters did not adversely
impact him. ECF No. 47 ¶¶ 48, 51; ECF No. 47-3 at 58-59, 63, 74-75. Accordingly, these claims
must be dismissed.
3.
Letter from New York Court of Claims
Finally, Plaintiff alleges that a letter from the New York Court of Claims was opened as
regular mail and thus denied him access to the courts. ECF No. 1 at 15-16, 80; ECF No. 47-3 at
75-77. Plaintiff testified, however, that the opening of the letter, other than violating his privacy,
6
did not adversely impact him. ECF No. 47-3 at 82. Because there is no genuine issue of material
fact as to whether this incident caused Plaintiff actual harm, his claim must be dismissed.
For all of the reasons stated, the Court grants Defendants’ Motion for Summary Judgment
on all of Plaintiff’s denial of access to the courts claims.
B.
Retaliation
Plaintiff alleges that Defendants improperly handled his mail in retaliation for grievances
that he filed. ECF No. 1 at 17-19. Defendants contend that they are entitled to summary judgment
on this claim because Plaintiff cannot show that he suffered adverse action sufficient to constitute
a First Amendment violation.
To state a First Amendment retaliation claim, a plaintiff must show that: (1) he engaged in
constitutionally protected speech or conduct; (2) the defendant took adverse action against him;
and (3) there is a causal link between the protected conduct and the adverse action. Dawes v.
Walker, 239 F.3d 489, 492 (2d Cir. 2001), overruled on other grounds by Swierkiewicz v. Sorema
N.A., 534 U.S. 506 (2002). Adverse action is any conduct “that would deter a similarly situated
individual of ordinary firmness from exercising . . . constitutional rights.” Davis v. Goord, 320
F.3d 346, 353 (2d Cir. 2003).
“[L]imited withholding or delay of a prisoner’s mail does not constitute an adverse action
sufficient to support a retaliation claim.” See, e.g., Green v. Niles, No. 11 Civ. 1349 (PAE), 2012
WL 987473, at *5 (S.D.N.Y. Mar. 23, 2012) (collecting cases). Similarly, “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).
Defendants are entitled to summary judgment on Plaintiff’s retaliation claims because mail
interference does not constitute adverse action to support such a claim. Moreover, by Plaintiff’s
7
own admission, he was not adversely impacted by having his mail opened or delayed and thus was
not deterred from exercising his constitutional rights. ECF No. 47-3 at 58-59, 75, 82-83,
Accordingly, the Court grants Defendants’ Motion for Summary Judgment as to Plaintiff’s
retaliation claims.
CONCLUSION
Defendants’ Motion for Summary Judgment (ECF No. 46) is granted and this case is
dismissed with prejudice. The Clerk of Court will enter judgment and close this case.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order
would not be taken in good faith and therefore denies leave to appeal to the Court of Appeals as a
poor person. See Coppedge v. United States, 369 U.S. 438 (1962). Plaintiff should direct requests
to proceed on appeal as a poor person to the United States Court of Appeals for the Second Circuit
on motion in accordance with Federal Rule of Appellate Procedure 24.
IT IS SO ORDERED.
Dated: July 19, 2019
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?