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JERMOSEN v. COUGHLIN

March 2, 1995

DONALD JERMOSEN, Plaintiff, against THOMAS COUGHLIN, et al., Defendants.


The opinion of the court was delivered by: ROBERT J. WARD

 WARD, District Judge.

 Plaintiff pro se Donald R. Jermosen ("Jermosen") has moved for summary judgment pursuant to Rule 56(b), Fed. R. Civ. P., claiming that no genuine dispute exists as to any material fact in his 42 U.S.C. § 1983 civil rights action brought against several employees of the Correspondence Clerks' Office (the "correspondence clerks") at the Sing Sing Correctional Facility ("Sing Sing") and various officials of the New York State Department of Correctional Services (collectively, "the defendants"). Plaintiff has further moved pursuant to Rule 37(b)(2), Fed. R. Civ. P. for sanctions against three of the defendants, Thomas A. Coughlin, Edward V. Tucker, and T. Hockler for their failure to comply with plaintiff's pre-trial discovery demands. *fn1" In response, the defendants have moved pursuant to Rule 56(b), Fed. R. Civ. P., for an order granting summary judgment and dismissing Jermosen's complaint. For the reasons set forth below, defendants' motion is granted and plaintiff's motions are denied as moot.

 BACKGROUND

 From May 1986 to November 1986, Jermosen, who is currently incarcerated at Attica Correctional Facility, was a prisoner housed at Sing Sing. Plaintiff alleges that during that six month period, defendants improperly tampered with his privileged correspondence and in so doing, violated his constitutional rights under the First, Fifth, Sixth, and Fourteenth Amendments of the United States Constitution. To vindicate those rights, Jermosen, initiated a civil rights action under 42 U.S.C. § 1983 on December 29, 1988.

 Specifically, Jermosen contends that the defendants interfered with three types of privileged communications. First, he claims that three letters sent to him by Thomas Coughlin, the former Commissioner of the New York State Department of Correctional Services, ("DOCS") were opened and read by the defendants before being delivered to Jermosen. Plaintiff argues that this interference with his mail from the Commissioner was in violation of Directive 4421, "Privileged correspondence dated May 8, 1986." Defendants refute these accusations and claim to have no specific knowledge of Coughlin's letters to Jermosen being opened prior to delivery. They assert that plaintiff's privileged mail was handled in accordance with departmental directives, including Directive 4421.

 Secondly, Jermosen professes that his incoming legal mail was tampered with on three separate occasions. Plaintiff claims that a package containing a law book that was sent to him by United States District Judge John T. Elfvin was opened by the defendants out of his presence and that the book was then subsequently brought to his cell by prison guards. Jermosen also argues that a letter sent to him by an Assistant Attorney General was opened out of his presence by the correspondence department and then sent to him with a note apologizing for the mistake. Finally, Jermosen asserts that when Ruth N. Cassell, an attorney with Prisoner's Legal Services of New York, sent him a tape of his disciplinary proceeding, the package was improperly opened by defendants and the tape was never delivered to him. The empty envelope was then returned to Ms. Cassell. In their answers to Jermosen's interrogatories, all of the defendants assert that they have no knowledge of any of these alleged incidents.

 The last type of tampering Jermosen claims to have suffered was deliberate interference with his outgoing legal mail. Plaintiff alleges that he sent a letter to the Attorney General's Office in Buffalo on June 2, 1986. According to Jermosen, that letter was never sent by the correspondence clerks who later returned the opened letter to him on June 9, 1986. He also claims that other unidentified correspondence which was sent on unspecified dates was not delivered to the attorneys in the Buffalo Office. As with all of Jermosen's previous allegations, defendants claim to have no personal knowledge of these incidents.

 It is based on these allegations that plaintiff now moves for summary judgment, arguing that there can be no dispute that these incidents happened and that they violated his civil rights in contravention of 42 U.S.C. § 1983. Defendants likewise move for summary judgment based on these facts, asserting that any opening of plaintiff's mail was merely a negligent act and does not rise to the level of a constitutional violation. They further argue that Jermosen offers insufficient evidence to support his claims and, as a result, they are entitled to a judgment as a matter of law.

 I. Standards for Granting Summary Judgment

 In examining a motion for summary judgment, a court must determine whether the moving party has established "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The initial burden of establishing that no such dispute exists is borne by the party seeking summary judgment. Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986). However, while all ambiguities and inferences that can be drawn from the underlying facts must be viewed in favor of the nonmoving party, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991), a moving party may establish that no dispute exists merely by "setting forth specific facts denying [plaintiff's] claims." Williams v. Smith, 781 F.2d at 323.

 Once he has done so, the burden then shifts to the nonmoving party, who must then present concrete evidence tending to show that he can support his claims against the moving party. If, after scrutinizing the pleadings, depositions, answers to interrogatories, and affidavits, a court determines that "the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof" at trial, summary judgment must be entered in favor of the moving party. Celotex Corp. v. Catrett, 477 U.S. at 322-23.

 Thus, a nonmoving party cannot survive a motion for summary judgment merely by relying on the allegations contained in his pleadings. Corselli v. Coughlin, 842 F.2d 23, 25 (2d Cir. 1988). Rather, to defeat a motion for summary judgment, the nonmoving party "must do more than simply show there is some metaphysical doubt as to the material facts . . . the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986) (citation omitted). See also, Gibson v. American Broadcasting Companies, 892 F.2d 1128, 1132 (2d Cir. 1984). It follows then, that a moving party can win ...


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