matters in a federal court. See Kimble, 648 F.2d at 348; Redcross, 511 F. Supp. at 374.
Moreover, Herrera made no showing that Raimo, Miller, or Maldonado were involved in a conspiracy and used force, intimidation, or threats in furtherance thereof. See Morast, 807 F.2d at 930. In fact, Herrera's allegations on this point are contradicted by his own statement of the facts, to wit, that every alleged violation brought to the Defendants' attention through his grievances was investigated and efforts were made by the Defendants to redress any negligent actions of Green Haven employees and to facilitate his access to the courts.
Finally, as was noted above with respect to Herrera's § 1983 claims, he has failed to make any showing that he suffered an actual injury as a result of the alleged conspiracy. See id.
Therefore, Herrera has failed to raise a genuine issue of material fact, and the Defendants are entitled to summary judgment on the claims set forth in the Third Cause of Action as a matter of law.
III. Herrera's State Law Claims Fail
The law of the Second Circuit requires that a plaintiff must do more than merely rely on the allegations set forth in his complaint to withstand a defendant's motion for summary judgment supported by sworn affidavits. See Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir. 1983) ("mere allegations in the non-moving party's pleadings are insufficient to show that there is a triable issue of fact if the moving party had made the necessary Rule 56(c) showing"); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980) (opposing party "may not rest upon mere conclusory allegations or denials," quoting SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978)); United States v. Pent-R-Books, Inc., 538 F.2d 519, 592 (2d Cir. 1976), cert. denied, 430 U.S. 906 (1977) (if moving party carries its preliminary burden, the opposing party may not defeat motion by relying on contentions in pleadings; rather, it must produce "significant probative evidence tending to support" its position); Kletschka v. Driver, 411 F.2d 436, 449 (2d Cir. 1969) (general allegations sufficient to state a cause of action in complaint become insufficient once opposed by a motion for summary judgment supported by affidavits).
Herrera's Fourth Cause of Action alleges that the Defendants violated the law of New York State by failing to comply with the policies and procedures promulgated by DOCS and set forth in Directives 4421 and 4040. The relevant sections of Directive 4421 address the procedure to be followed in inspecting an inmate's privileged correspondence and Directive 4040 describes the grievance procedure and the Inmate Grievance Program. Herrera fails to offer any evidence beyond the recitation of allegations in the Complaint to support these claims. Herrera had failed to produce the requisite "significant probative evidence tending to support" his position in the face of the Defendants' sworn affidavits. Project Release, 722 F.2d at 968. As a result, this Court must necessarily find those affidavits to have persuasive weight in determining the viability of Herrera's claims.
Herrera contends that Directive 4421 was violated by Johnson when he opened Herrera's mail and confiscated the photographs that were sent to Herrera on July 12, 1987. While Herrera contends that the envelope was opened and the photographs removed before Johnson brought the envelope and letter to him, in violation of DOCS procedures, Johnson testified in his sworn affidavit that he followed those procedures by opening the envelope in Herrera's presence, examined the contents, and confiscated only the two photographs. Herrera was also given a receipt for the confiscated photographs.
In the absence of any factual support for the allegations in Herrera's Complaint regarding Johnson's handling of Herrera's mail and photographs, this Court accepts Johnson's sworn statements as true for the purposes of this motion, and grants summary judgment against Herrera's claims arising from the alleged violations of Directive 4421.
With regard to Herrera's allegations of the Defendants' Directive 4040 violations, a review of the record and the sworn affidavit of Earl Hughs, the Supervisor of Inmate Grievance Resolution at Green Haven, supports the conclusion that the Defendants acted in compliance with established policies and procedures in handling each of Herrera's grievances.
In response to Herrera's grievance regarding the events of the alleged First Violation, the IGRC investigated the grievance. That investigation was reviewed by the Office of the Superintendent, and a report was issued by Scully's in which he made the offer to intervene on Herrera's behalf with the New York Supreme Court. Similarly, the responses of Scully and Winch to Herrera's letter regarding the confiscation of the photographs was consistent with DOCS procedures. The Defendants acted in conformity with Directive 4040 when his grievance arising out of the allegations of the Third Violation was dismissed with leave to refile upon his leaving Green Haven to appear in Family Court. Finally, Scully's denial of Herrera's request to have his future legal mail forwarded to Albany for processing also was appropriate and consistent with DOCS policies and procedures, and this was evidenced in the affirmation of Scully's decision on Herrera's appeal to the Central Office Grievance Review Committee.
Therefore, summary judgment as to Herrera's claims arising from alleged violations of Directive 4040 is granted.
For the reasons set forth, the Court finds that there is no genuine issue of material fact remaining for trial in this action, and that the Defendants are entitled to judgment as a matter of law on every claim raised by Herrera. The Defendants' motion for summary judgment is granted.
It is so ordered.
New York, N. Y.
March 8, 1993
ROBERT W. SWEET