moves for summary judgment. Defendants cross-move, arguing that loss of personal property fails to state a cause of action. (Def. Mem. 6-7)
Defendants are entitled to summary judgment dismissing plaintiff's property deprivation claim because no constitutional injury is alleged. New York's post-deprivation tort remedy provides all the process that is due, whether the deprivation of plaintiff's property was intentional or negligent. Daniels v. Williams, 474 U.S. 327, 328, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986); Hudson v. Palmer, 468 U.S. 517, 533, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984) (intentional deprivation); Parratt v. Taylor, 451 U.S. 527, 543, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981) (negligent deprivation).
Alleged Denial of Access to the Courts
Plaintiff alleges that he was denied access to legal materials and legal assistance from February 13, 1992 to October 12, 1992 while in keeplock status. (Pl. 10(J) St. P 14)
The Supreme Court has recognized a prisoner's constitutional right of access to the courts. Bounds v. Smith, 430 U.S. 817, 821-22, 52 L. Ed. 2d 72, 97 S. Ct. 1491 (1977). Bounds requires prison officials to provide adequate law libraries or assistance from persons trained in the law, id. at 828, and to furnish prisoners with basic supplies to render their access to the courts meaningful. Id. at 824-25. Plaintiff asserts that during the period in question he submitted requests for legal materials from the library and never received the materials, except on one occasion. (Amend. Cpt P 10)
Defendants have attached to the affirmation of Assistant Attorney General Siegfried portions of alleged library records. (Siegfried Aff. Ex. A) There is no evidence submitted beyond the records attached. The records appear to indicate that materials were signed out in the name of plaintiff on four occasions: February 19, 1992, February 28, 1992, February 29, 1992 and March 1, 1992. (Id.) Defendants' papers, however, do not sufficiently authenticate the records. But even if authenticated, the records do not establish whether plaintiff ever received the materials or that his legal needs adequately were attended to. As defendants have failed to submit evidence sufficient to carry their burden under Rule 56, their motion is denied as to this claim.
Alleged Assault by Defendant CO Lupo
Plaintiff alleges that he was assaulted by CO Lupo on March 9, 1992 while "preparing to be searched" by Lupo (Amend. Cpt P 5) and moves for summary judgment on this claim. CO Lupo submitted an affidavit denying that he used any physical force on plaintiff. (Lupo Aff. P 2, 5)
If Lupo had cross-moved for summary judgment, the claim against him would have been dismissed because no genuine issue of material fact would exist given the absence of any sworn evidence from plaintiff on this allegation. It is unclear that Lupo has made such a motion. The notice of cross-motion and defendants' brief are sufficiently ambiguous as to whether defendants seek dismissal of this claim so as to leave open the possibility that plaintiff failed to submit an affidavit on this point in the belief that dismissal of this claim against Lupo was not sought at this time. In the circumstances, it would not be appropriate to grant summary judgment on this claim in this posture.
Defendant Selsky's Immunity Defense
Defendants seek summary judgment dismissing the claim in the original complaint against defendant Selsky on the ground of absolute immunity. This branch of defendants' motion must be denied in light of Young v. Selsky, Nos. 1117, 93-2567, 1994 WL 653405 (2d Cir. Nov. 21, 1994), in which the Second Circuit addressed and rejected an argument identical to defendants' argument in this case.
Personal Involvement of Defendants Coughlin, Dann, Walker, Giambruno and Rosado
Defendants argue that defendants Coughlin, Dann, Walker, Giambruno and Rosado had no personal involvement in the alleged unlawful conduct and therefore may not be held liable for any Section 1983 violation under the standard of Monell v. Department of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978).
Even on a generous reading of the amended complaint, plaintiff alleges no facts indicating personal involvement of defendants Coughlin or Rosado in any of the alleged violations. Therefore, all claims are dismissed as to defendants Coughlin and Rosado.
Plaintiff alleges that defendants Dann, Walker and Giambruno had personal knowledge of the DOCS medical order that he be housed on a bottom gallery of the prison and yet ignored it. (Amend. Cpt P 8(a)) Plaintiff appears to allege that Giambruno had knowledge also of the alleged denial of plaintiff's access to legal materials. (Id. P 10) All claims therefore are dismissed against defendants Dann and Walker except for the Eighth Amendment allegation based the medical order to house plaintiff on a bottom tier. All claims are dismissed against defendant Giambruno except the Eighth Amendment claim based on the medical order and the claim of alleged denial of plaintiff's access to the courts.
Plaintiff's motion is denied in all respects. Defendants' cross-motion is granted to the extent of dismissing (a) all claims against Coughlin and Rosado, (b) all claims against Walker and Giambruno save the Eighth Amendment claim relating to housing plaintiff on the upper tier and, as to Giambruno, the claim relating to access to the courts, (c) all Eighth Amendment claims against the remaining defendants, except the claim relating to housing plaintiff on the upper tier, (d) the compensatory damage claim with respect to alleged deprivation of counsel, and (e) the property deprivation claims. It is denied in all other respects.
Dated: New York, New York
January 4, 1995
Lewis A. Kaplan
United States District Judge