In fact, Jermosen has failed to demonstrate that any of the correspondence clerks, with the possible exception of Raymond McCauley ("McCauley"), even came into contact with his mail. McCauley was the correspondence clerk assigned to handle the mail of prisoners whose last name begins with the letter "J". In the face of defendants' verified answers to plaintiff's interrogatories, which disclaim any personal knowledge of the alleged incidents, the mere possibility that the correspondence clerks may have had occasion to process Jermosen's outgoing mail is insufficient to establish any personal involvement in the alleged § 1983 constitutional deprivation. Furthermore, during the period of time Jermosen alleges that his mail was tampered with, defendant Margret Henry was an inmate records coordinator, and consequently had no contact with any prisoner's mail.
Nor has Jermosen demonstrated that any of the supervisory officials he named in his complaint -- former Commissioner Coughlin, ("Coughlin") former Superintendent Sullivan ("Sullivan") and First Deputy Superintendent Tucker ("Tucker") -- had any knowledge of or personal involvement in any of the alleged incidents.
It is well established that these officials cannot be held liable for the behavior of their subordinates on the theory of respondeat superior. See Monell v. New York City Dep't of Social Serv., 436 U.S. 658, 693-95, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978); Gill v. Mooney, 824 F.2d 192, 196 (2d Cir. 1987) ("absent some personal involvement by [the superintendent of a DOCS facility] in the allegedly unlawful conduct of his subordinates, he cannot be held liable under section 1983").
In this circuit, a supervisor may only be held liable under Section 1983 if 1) he was directly involved in the deprivation, 2) he participated in the creation of, or the acquiescence in a policy or custom allowing constitutional violations, 3) he failed to remedy a wrong after learning about it through an appeal or complaint, or 4) he was "grossly negligent" in the training or management of subordinates who caused the wrong. Williams v. Smith, 781 F.2d at 323-24. Coughlin, Sullivan, and Tucker uniformly stated in their verified responses to Jermosen's interrogatories that they had no knowledge of nor were they otherwise made aware of any of the purported incidents. Faced with these denials, plaintiff has not presented any evidence, whatsoever, demonstrating that these officials had any knowledge of the alleged incidents, even though it is his burden to do so. See Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065 (2d Cir. 1989) citing Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985) (per curiam) ("plaintiff must demonstrate 'personal involvement' of state commissioner of corrections and superintendent of prison, not mere 'linkage in the prison chain of command'"); Holmes v. Fell, 856 F. Supp. 181, 184 (S.D.N.Y. 1994) (summary judgment granted in favor of supervisory nurse where no evidence of administrator's personal involvement).
Furthermore, since Jermosen is claiming that his mail was tampered with in violation of DOCS' own regulations, he cannot attempt to hold these supervisors liable under Section 1983 on the premise that they have established a policy or custom under which unconstitutional practices are commonplace. McCann v. Coughlin, 698 F.2d 112, 125 (2d Cir. 1983). Even if all of the incidents alleged by Jermosen are assumed to have occurred, plaintiff has not alleged facts from which a trier of fact could find that these incidents were anything other than inadvertent negligent acts in contravention of established DOCS procedures.
As a result, summary judgment must be granted as to all the defendants who are not personally implicated by Jermosen's allegations of mail tampering. In other words, none of the defendants, with the exception of McCauley, can be held liable under 42 U.S.C. § 1983 because they were not personally responsible for handling the mail that Jermosen claims was interfered with, and have all declared in their answers to his interrogatories that they have no personal knowledge of these alleged incidents. Jermosen has advanced no concrete proof to refute the defendants' assertions. Accordingly, his Section 1983 action as applied to them must fail and summary judgment in favor of these defendants is granted.
McCauley has likewise stated that he has no personal knowledge of the incidents alleged in Jermosen's complaint, and Jermosen has failed to provide any concrete proof refuting McCauley's disavowal. Normally, this would be enough to grant summary judgment in favor of McCauley. A plaintiff cannot defeat a defendant's properly supported motion for summary judgment by "merely asserting that the jury might, and legally could, disbelieve the defendant's denial of [guilt]" Anderson, 477 U.S. at 256. However, the Court is willing to give the benefit of the doubt to Jermosen and, in addition to assuming that his allegations are true, will accept the inference that, as the correspondence clerk responsible for handling the correspondence of inmates whose last name begins with the letter "J," McCauley knew or should have known about any interference with Jermosen's mail.
B. Deliberate Indifference
In order to prevail on a 42 U.S.C. § 1983 claim alleging a violation of 14th Amendment due process rights, an inmate must prove that prison officials were. deliberately indifferent to those rights. See Daniels v. Williams, 474 U.S. 327, 330, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986); Davidson v. Cannon, 474 U.S. 344, 347, 88 L. Ed. 2d 677, 106 S. Ct. 668 (1986). A showing of mere negligence is insufficient. "The Due Process clause protects against an affirmative abuse of power; it is simply not implicated by a negligent act of an official causing loss of or injury to life, liberty, or property." Daniels, 474 U.S. at 328.
As has been previously noted, plaintiff has failed to provide the Court with any evidence linking the defendants to the constitutional deprivations allegedly suffered. Even accepting Jermosen's version of events, they do little more than demonstrate that certain correspondence clerks, most probably McCauley, were negligent is handling his mail. The only relevant evidence presented is two envelopes that were reportedly signed by the correspondence department stating, "Opened by mistake. Sorry." Jermosen offers no evidence to suggest that these envelopes were not, in fact, opened by mistake, no evidence that defendants had a motive to be "deliberately or callously indifferent" to his mailing privileges, and no evidence that defendants had an established policy to open legal and privileged mail out of the presence of an inmate. To the contrary, all parties to this lawsuit agree that DOCS Directive 4421 forbids the opening of properly marked legal mail and all of the defendants have indicated that they handled prisoner's mail in accordance with that directive.
Viewing the evidence in a light most favorable to plaintiff, the most that the evidence can be construed as demonstrating is that, on certain isolated occasions, plaintiff's privileged mail was handled negligently by the Sing Sing correspondence clerks. As the Supreme Court has made abundantly clear, "the protections of the Due Process Clause, whether procedural or substantive, are just not triggered by lack of due care by prison officials." Davidson v. Cannon, 474 U.S. at 348. The plaintiff must show that the defendant acted with "deliberate or callous indifference" to plaintiff's constitutional rights. Id. at 347. Inasmuch as Jermosen has failed to demonstrate such deliberate indifference, summary judgment must be granted in favor of all the defendants, including McCauley.
C. Right to Access Claim
Under current Supreme Court precedent, an inmate has a constitutional right to reasonable access to the courts. See Bounds v. Smith, 430 U.S. 817, 821, 52 L. Ed. 2d 72, 97 S. Ct. 1491 (1977); Wolff v. McDonnell, 418 U.S. 539, 556, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974). However, "the Constitution requires no more than reasonable access to the courts." Pickett v. Schaefer, 503 F. Supp. at 28 (S.D.N.Y. 1980).
To state a valid § 1983 claim that he has been denied reasonable access to the courts, Jermosen must show that the alleged deprivation actually interfered with his access to the courts or prejudiced an existing action. See Hikel v. King, 659 F. Supp. 337, 340 (E.D.N.Y. 1987) (plaintiff failed to show how the destruction of documents could have impeded any suit that he had or could have brought). A delay in being able to work on one's legal action or communicate with the courts does not rise to the level of a constitutional violation. See Jones v. Smith, 784 F.2d 149, 151-52 (2d Cir. 1986) (access to courts not denied when inmate was prevented from working on legal case while confined to Attica's Special Housing Unit for violation of prison rules): Richardson v. McDonnell, 841 F.2d 120, 122 (5th Cir. 1988) (unintentional delay in mailing inmate's legal mail was noted in time to permit inmate to re-prepare and timely file his writ application).
In his complaint, Jermosen claims that a tape of his disciplinary hearing, sent to him by an attorney at Prisoner's Legal Services of New York, was removed from inside its envelope by the correspondence clerks, thus depriving him from presenting certain unspecified information in a civil action. Putting aside the fact that plaintiff has presented no evidence that the correspondence clerks improperly handled or confiscated the tape,
Jermosen has failed to demonstrate that he was in any way prejudiced in pursuit of his legal action or that his access to the court was otherwise impaired. Indeed, plaintiff concedes that this civil action was settled. Furthermore, Jermosen's claim that he would have been able to achieve a better settlement had he had access to the tape is belied by the fact that plaintiff had ready access to the tape at Sing Sing and could have used it in the preparation of his civil action had he chosen to do so. Thus, as a matter of law, plaintiff has failed to establish prejudice, an essential element of his Fourteenth Amendment right to access to the court claim, and summary judgment must be granted in favor of the defendants. Morgan v. Montanye, 516 F.2d 1367, 1371 (2d Cir.), cert. denied, 424 U.S. 973, 47 L. Ed. 2d 743, 96 S. Ct. 1476 (1976) (where no evidence demonstrating that inmate was prejudiced by opening of legal mail, dismissal of action affirmed); Pickett v. Schaefer, 503 F. Supp. 27, 28 (S.D.N.Y. 1990) (where no prejudicial effect demonstrated reasonable access to court not been denied).
For the foregoing reasons, defendants motion for summary judgment is granted and the action is dismissed. Plaintiff's motions are denied as moot.
It is so ordered.
Dated: New York, New York
March 2, 1995
Robert J. Ward