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March 8, 1993

CHARLES J. SCULLY, Superintendent of Green Haven Correctional Facility; CHARLES R. WINCH, First Deputy Superintendent of Green Haven Correctional Facility; ROBERT J. SEITZ, Deputy Superintendent at Green Haven Correctional Facility; JOHN JOHNSON, Correction Officer at Green Haven Correctional Facility; EDGAR MALDONADO, Correction Counselor at Green Haven Correctional Facility; PATRICIA MILLER, Supervisor of Mailroom at Green Haven Correctional Facility; and PAT RAIMO, Supervisor of Inmate Grievance Resolution at Green Haven Correctional Facility, Defendants.

The opinion of the court was delivered by: ROBERT W. SWEET

 Sweet, D. J.

 Oral argument was heard on the motion on November 3, 1992. The Defendants submitted additional documents on November 4, 1992, and the motion is considered fully submitted as of that date.

 For the reasons set forth below, the Defendants' motion is granted.


 Herrera is a inmate incarcerated within the New York Department of Correctional Services ("DOCS") system and an accomplished pro se litigant. *fn1" During 1987, he was incarcerated in Green Haven, and he is currently detained in the Clinton Correctional Facility, Dannemora, New York.

 The Defendants were all employed by DOCS in 1987 and worked at Green Haven. Each is sued in his or her official capacity at Green Haven at least during the period from January 1987 to June 1988: Charles J. Scully ("Scully") as Superintendent, Charles R. Winch ("Winch") as First Deputy Superintendent, Robert J. Seitz ("Seitz") as Deputy Superintendent of Security, John Johnson ("Johnson") as a Correction Officer, Edgar Maldonado ("Maldonado") as a Correction Counselor, Patricia Miller ("Miller") as Supervisor of the Correspondence Department, and Pat Raimo ("Raimo") as Supervisor of Inmate Grievance Resolution.


 This action has a inexcusably long and tortured history, a history that exposes many of the problems arising out of pro se litigation by state prisoners. Herrera commenced this action on September 8, 1988. In his Complaint, he alleges violations of his constitutional rights arising in three separate instances in which his mail was allegedly delayed, lost, given to another inmate, or withheld by the Defendants. During the course of the pretrial motion practice, Herrera made three prior motions for orders compelling the Defendants to comply with various discovery requests and imposing sanctions. These motions were disposed of in Opinions filed on September 21, 1990, January 16, 1991, and October 9, 1992, familiarity with which is assumed. See Herrera v. Scully, 143 F.R.D. 545 (S.D.N.Y. 1992) ("Herrera III"); Herrera v. Scully, No. 88 Civ. 6616 (RWS), 1991 U.S. Dist. LEXIS 571 (S.D.N.Y. Jan. 16, 1991) ("Herrera II"); Herrera v. Scully, No. 88 Civ. 6616 (RWS), 1990 U.S. Dist. LEXIS 12473 (S.D.N.Y. Sept. 21, 1990) ("Herrera I").

 In Herrera III, this Court set forth the procedural facts surrounding the initial dismissal of this action as a result of Herrera's failure to comply with an order to submit a joint pretrial order and trial briefs and Herrera's subsequent motion to vacate the order of dismissal. See 143 F.R.D. at 547. This Court has also noted the numerous extensions of various discovery and filing cutoff dates requested by the Defendants because this case was assigned to no fewer than three different Assistant Attorneys General. See Herrera I, 1990 U.S. Dist. LEXIS 12473, at *2. This assigning and reassigning necessarily entailed excessive delays as each Assistant Attorney General was required to begin from scratch, familiarizing herself with the case, compiling the information and documents demanded by Herrera, and preparing a motion for summary judgment. See id.; see also Herrera III, 143 F. Supp. at 552 (recounting additional factors causing delays which were attributable to both Herrera and the Defendants).

 In Herrera III, the Defendants were order to supply sufficient responses to Herrera's Request for Admissions within 20 days of the data of that Opinion (October 9, 1992), and the action was placed upon the ready trial calendar. See 143 F.R.D. at 553. No responses were forthcoming and the trial date was set for November 3, 1992.

 On November 2, 1992, the Court executed a Writ of Habeas Corpus Ad Testificandum and had Herrera transported on a two-day journey from Clinton to the Metropolitan Correctional Center in Manhattan for the trial of his action on November 3. In the hindsight provided by only the first few minutes of the proceedings with the Defendants and Herrera, it became obvious that the Court was unwarranted in bringing Herrera to Manhattan for trial.

 It was at the outset of the proceedings that the Defendants finally renewed their motion for summary judgment, which rendered Herrera's sojourn entirely superfluous. However, taking advantage of Herrera's presence and in an attempt to expedite the ultimate resolution of this action, the Court placed Herrera on the stand and had him give his sworn affidavit (the "Oral Affidavit") in opposition to the Defendant's motion for summary judgment at that time.

 After giving his Oral Affidavit, Herrera moved the Court to allow him to amend his complaint to name three additional defendants and deem as admitted the statements that the Defendants were ordered to respond to in Herrera III. The Defendants objected that the proposed defendants Herrera wanted to add had been known to him for several months. The Court denied both motions and allowed the Defendants to provide responses to the statements at issue in Herrera III.

 Having received Herrera's testimony into evidence, the Court granted the Defendants' motion on the record presently before it. However, the Court noted that Herrera had been unable to bring any of his files with him from Clinton and indicated that it would reconsider that disposition of the Defendants' motion in light of any additional information or documentation Herrera subsequently were to submit to the Court.

 On November 4, 1992, the Defendants filed with the Court their responses to Herrera's Request for Admissions and an affirmation in further support of their motion for summary judgment in response to Herrera's Oral Affidavit. No further information or documentation has been forthcoming from Herrera.

 The Facts 2

 Herrera contends that his constitutional rights were violated on three separate occasions when his mail was allegedly delayed, lost, given to another inmate, or withheld by the Defendants. He further alleges that Raimo, Miller, and Maldonado deprived him of his constitutional rights by engaging in a conspiracy to cover up the actions of all of the Defendants. This was specifically accomplished by their distorting facts and withholding information when investigations were made by the grievance committee in response to grievances filed by Herrera. As a result of these violations, Herrera claims he effectively was denied access to the courts in violation of his First and Fourteenth Amendment rights. Finally, Herrera claims that the Defendants violated the law of New York State by their noncompliance with DOCS Directives 4421 and 4040.

 I. First Violation

 On January 28, 1987, Herrera filed a post-verdict motion, in the New York State Supreme Court, in connection with his criminal conviction. He was notified that the motion was placed on the motion calendar for April 2, 1987. On May 26, 1987, Herrera received a copy of the District Attorney's Affirmation in opposition to his motion. Herrera prepared a Reply Affirmation, and on June 3, 1987, he mailed the original to the Kings County Supreme Court by certified mail and a copy to the District Attorney's Office by regular mail by placing them in the Green Haven inmate's mail box. He attached a distribution form to this mail requesting that its cost be deducted from his inmate account.

 On June 9, 1987, Herrera's disbursement form of June 3 was processed. That same day, a disbursement form dated May 15, 1987 was also processed, leaving insufficient funds in Herrera's account to cover the expense of sending his legal mail to the court by certified mail. He was informed of this situation when he received the receipt from the disbursement form from sent to the court's clerk which had been marked "insufficient funds."

 Herrera alleges that, because he was concerned that his Reply Affidavit would not reach the court in a timely manner, he filed a grievance with the Inmate Grievance Resolution Committee ("IGRC") and requested that Scully or a subordinate write to the court and explain why his Affidavit was delayed. Although there was no investigation report setting forth any findings or conclusions regarding the delay in processing Herrera's legal mail by IGRC, the grievance was reviewed by the Office of the Superintendent, and Scully issued a report acknowledging delays in the processing of disbursement forms and legal mail generally and indicating that the problems were being addressed.

 Scully also offered to write a letter to the court on Herrera's behalf if Herrera could show that the date his Reply Affirmation was due was three or four working says subsequent to his submission of his disbursement, and that his post-verdict motion was denied because the facility failed to process his mail in a timely manner. It appears that Herrera took no action on this offer, and in any event, no letter was written by Scully to the court.

 Herrera's Reply Affirmation was sent to the court by first class mail and reached the court on June 10, 1987. On June 12, 1987, he was notified by the court that his motion was denied. It appears from the record, however, that Herrera did not file his grievance regarding the delay in the mail service until June 17, 1992, five days after he learned his motion had been denied.

 II. Second Violation

 On November 2, 1987, while Herrera was confined to his cell for disciplinary reasons, Johnson brought him an envelope containing legal mail. Herrera alleges that the envelope was opened, the letter was attached to the outside of the envelope, and a "contraband receipt" was attached to the letter. The receipt indicated that the envelope had contained two photographs which had been removed by Johnson and turned over to Seitz.

 On or about August 12, 1987, Herrera made a Freedom of Information Law appeal to the Assistant Deputy Commissioner of the New York City Police Department, requesting photographs taken of him after his arrest and a copy of the photo array whom to the complainant in his criminal case be sent to him at Green Haven. It was the post-arrest photographs of Herrera which were confiscated by Johnson and given to Seitz.

 On November 7, 1987, Herrera wrote to Scully concerning the importance of the photographs for his appeal. Scully referred the matter to Winch, and on December 18, 1987, Winch informed Herrera that the photographs had been lost. Winch requested that Herrera give him the name and address of the agency that sent the photographs so another copy of them could be obtained. Herrera complied with this request.

 As of the date of the Complaint, Herrera alleges he had heard nothing more regarding the photographs and that, as a result, he has been hindered from perfecting a meritorious identification issue in his appeal of his criminal case. On January 20, 1989, Herrera was notified by the Office of the Superintendent that two photographs were in his personal property file in the Inmate Record Coordinator's Office. *fn3" Herrera also was informed that, pursuant to DOCS Directive 4035, he was not permitted to possess the photographs but that if he needed them for a court case, he could contact the Inmate Record Coordinator ("IRC") who would arrange for the photographs to be included in the papers for filing with the courts.

 In a letter dated January 23, 1989, Herrera wrote to Scully, arguing that he should be allowed to have the photographs because they did not fall under the classification of "identification cards" described in DOCS Directive 4035. He refused to make arrangements with the IRC to use the photographs in his legal proceedings, requesting instead that they be forwarded to this Court. This Court received the photographs on February 6, 1989.

 In his Oral Affidavit, Herrera testified that the post-verdict motion in which he intended to use the photographs challenged an identification of him based on a photo array admitted in evidence at his trial.

 III. Third Violation

 On December 30, 1987, Herrera deposited a manila envelope in the Green Haven inmate mail box. This envelope contained motion papers and supporting exhibits, and attached thereto was a disbursement form requesting that the envelope be mailed via "special delivery" to the Chief Justice of the New York State Family Court. On the envelope Herrera had written, "Legal Correspondence; Privilege [sic] and Confidential"; "Special Delivery, Receipt Requested."

 On January 4, 1988, Herrera received the disbursement form marked "insufficient funds," a 2708 form filled out with his name, number, and cell location, and an interdepartmental communication dated January 5, 1988, stating that Herrera was to use the 2708 form to forward legal correspondence with first class mail. The envelope and its contents were not returned with any of these forms.

 On January 5, 1988, Herrera wrote a memo to Miller and acknowledged that he had received the forms and requested that she either process a new disbursement form and forward the legal mail as requested or return the envelope to him. On January 6, Herrera received his memo back from Miller with the new disbursement form but not the envelope. On January 12, ...

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