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February 19, 1986

CHARLES JAMES, Superintendent of the Collins Correctional Facility, CORRECTIONS OFFICER J. NOWAKAWSKI, and THOMAS COUGHLIN, III, Commissioner of the New York State Department of Correctional Services, Defendants VINCENT MORELLO, Plaintiff, v. HAROLD J. SMITH, Superintendent of the Attica Correctional Facility, COMMISSIONER THOMAS COUGHLIN, III, and UNKNOWN CORRECTIONAL OFFICERS, Defendants

The opinion of the court was delivered by: TELESCA



 These two civil rights actions present a question of recurring concern for federal district courts: Does the doctrine of Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), bar a federal civil rights action for the theft or destruction of a prisoner's legal materials by correctional officers when the State provides an adequate post-deprivation remedy?


 In these two pro se civil rights actions, which are consolidated for the purposes of this decision, *fn1" Vincent Morello alleges the following facts. *fn2" In the early morning of November 6, 1983, while Morello was incarcerated at the Collins Correctional Facility, he completed work on a brief for an appeal he had pending before the Appellate Division of the New York Supreme Court, Fourth Department. Later that day, before his appellate brief could be notarized, Morello was segregated from the general population and placed in confinement. All of his property was "packed up," and placed in another room by Corrections Officer Nowakawski.

 The following day, Morello was transferred to the Attica Correctional Facility. He did not receive any of his personal belongings until six days later, on November 13, 1983. When Morello's property was finally turned over to him, two of his eleven legal folders were missing. At some point during his transfer from Collins to Attica, Morello alleges that as yet unidentified correctional officers searched his bags, and arbitrarily stole various items of his personal property, including his appellate briefs and records of a phone call made by his attorney to the Niagara Falls police. Also taken were all of his notes, research materials, and rough draft work-sheets. Morello alleges that the loss caused him irreparable harm in perfecting his appeal, since he had received legal assistance in the preparation of his appellate brief that could not be replaced.

 Morello's complaint, brought pursuant to 42 U.S.C. § 1983, seeks punitive and compensatory damages, as well as other appropriate relief, for the "theft and removal" of his appellate pro se brief and research.

 Presently pending before me is a motion by the defendant prison officials to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. *fn3" Defendants cite Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981) and Hudson v. Palmer, 468 U.S. 517, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984) for the proposition that the intentional or negligent deprivation of a prisoner's property does not violate the prisoner's constitutional rights where adequate post-deprivation remedies exist under State law.


 It is by now familiar ground that pro se complaints must be liberally construed, and should not be held to as rigorous a standard as formal pleadings prepared by an attorney. Hughes v. Rowe, 449 U.S. 5, 9, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980); Salahuddin v. Coughlin, 781 F.2d 24, Slip Opinion at 953 (2d Cir. 1986). When subjected to such a liberal construction, Morello's complaint may be fairly read as asserting two distinct constitutional claims. First, as the defendants' argument implicitly acknowledges, Morello's statement of facts may be interpreted as asserting a claim that he was deprived of property without due process of law, in violation of the Fourteenth Amendment to the United States Constitution. In addition, Morello's pro se complaint can also be reasonably read to allege that State prison officials intentionally violated his constitutional right of reasonable access to the courts. See Washington v. James, 782 F.2d 1134, Slip Opinion at 1413-14 (2d Cir. 1986). Nevertheless, defendants argue that dismissal of the entire complaint is compelled under the authority of Parratt v. Taylor and its progeny, *fn4" since the State of New York provides adequate post-deprivation remedies for the destruction of Morello's legal materials. For the reasons that follow, I am compelled to accept the defendants' position, despite serious misgivings, by controlling Second Circuit authority.

 After careful consideration, this Court is constrained to grant defendants' motion on the authority of Love v. Coughlin, 714 F.2d 207 (2d Cir. 1983) (per curiam), a case which is virtually indistinguishable from the factual and legal issues presented by Morello's complaint. The plaintiff in that case, John Love, Jr., filed a pro se civil rights complaint concerning the loss of two of his three duffel bags during a transfer within the New York State prison system. The bags allegedly contained various items of personal belongings, including legal documents and communications pertaining to four civil and two criminal lawsuits. Love sought compensatory and punitive damages from State correctional officers *fn5" for failing to safeguard his property from theft or loss. The plaintiff in that case specifically alleged a claim of "interference with his access to the courts," and emphasized that the theft or loss of prisoners' property was a "recurring" problem. Id. at 208.

 Despite Love's allegations of ongoing interference with his access to the courts, the Second Circuit Court of Appeals held that dismissal of the entire complaint was required by Parratt, which it cited for the general proposition that "no civil rights action lies" for the deprivation of a prison inmate's "personal belongings" by correctional officers, if the State provides an adequate compensatory remedy. Id. at 208-209. By clear implication, the court rejected without discussion the plaintiff's argument that Parratt should not apply to the theft or loss of his legal materials, and the concomitant obstruction of his access to the courts. Indeed, the Court of Appeals held that the inmate's pleadings, liberally construed, were so "clearly foreclose[d]" by Parratt that the District Court properly dismissed the complaint sua sponte without service of process upon the named defendants. *fn6" Id.

 The factual background and legal issues which were presented in the Love case simply cannot be distinguished in any meaningful way from the case now before me. *fn7" On the authority of that controlling Second Circuit precedent, therefore, this Court is bound by the doctrine of stare decisis to accept defendants' position that Morello's complaint, liberally construed, is foreclosed by the Parratt doctrine, since New York State provides adequate post-deprivation remedies in the Court of Claims. Accordingly, like the Court of Appeals in Love, I need not decide whether this prisoner complaint has alleged facts which would otherwise be adequate to establish an actionable violation of his constitutional right of reasonable access to the courts.

 Although Love still retains its vitality as controlling authority within this Circuit, its reasoning is in need of re-examination, since it rests on the questionable assumption that Parratt is generally applicable to the deprivation of any of a prisoner's "personal ...

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