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BILLUPS v. NEW YORK STATE

March 15, 1995

BILLY BILLUPS, Plaintiff, against NEW YORK STATE, ET AL., Defendants.


The opinion of the court was delivered by: HAROLD BAER, JR.

 Plaintiff Billy Billups, pro se, originally initiated this civil rights lawsuit along with two other plaintiffs, Collin Fearon and Bradshaw Samuels, by complaint filed February 7, 1985. Plaintiffs brought a multitude of claims under 42 U.S.C. §§ 1981, 1982, 1983, 1985(2) and (3), 1986 and 2000(d) seeking declaratory, injunctive and compensatory relief from fifty-four defendants for certain alleged violations of their federal rights committed at Clinton Correctional Facility ("Clinton") during the period 1981 through 1983.

 On May 5, 1985, defendants moved to dismiss the complaint, or in the alternative, for summary judgment. By Order dated April 8, 1987, Judge Munson of the Northern District of New York, adopted the September 26, 1986 Report-Recommendation of Magistrate Conan in its entirety, and granted summary judgment as to all but ten state defendants: Eugene S. LeFevre, Superintendent of Clinton; J.W. Curran, Deputy Superintendent of Security Services; D.A. McGuire, Deputy Superintendent of Program Services; T. Howard, Vocational School Supervisor; Lee Atkinson, Vocational School Instructor; Crane R. Rock, Substitute Vocational School Instructor; P. Welch, Chairperson of the Program Committee; R. Cox, Correspondence Supervisor; and J.J. Woods and D.P. Maggy, Correctional Officers.

 On November 21, 1991, the district court sent notice to plaintiffs, pursuant to Local Rule 11, that the action would be dismissed against the remaining defendants for failure to prosecute unless, within twenty-one days of receipt of the notice, the plaintiffs showed good cause why the action should be preserved. Because the court did not receive a response, it dismissed the case by order dated January 6, 1992, with judgment entered on January 9, 1992.

 Plaintiff Billups appealed, maintaining that he never received the Rule 11 notice. By summary order dated October 21, 1992, the Second Circuit reversed the dismissal as to Billups, and remanded the case to the district court so that another Local Rule 11 notice could be mailed to him. On December 7, 1992, the district court sent a notice to Billups, to which he timely responded.

 Two claims now remain and are the subject of this motion: (1) the defendants' alleged improper handling of Billups' mail; and (2) the defendants' removal of Billups from a vocational program in alleged retaliation for his use of the law library.

 Billups moves for summary judgment pursuant to Fed. R. Civ. P. 56(a). The ten remaining defendants cross-move for summary judgment.

 I. Facts

 Billups was incarcerated at Clinton from September 1980 until March 1984. The relevant facts for purposes of Billups' remaining claims, which are not in dispute, consist of the following two unrelated events.

 Plaintiff's first claim, although stated in less than artful prose, can reasonably be read to allege that certain defendants improperly handled his legal mail and deprived him of his constitutional right to access to the courts. Billups filed a grievance on August 20, 1981, claiming that he mailed a letter to an attorney bearing the legend "privileged and confidential." The letter was improperly addressed and subsequently returned to Billups marked "undeliverable," but only after prison officials opened and inspected it for contraband.

 Superintendent LeFevre denied Billups' grievance by Response Memorandum dated September 11, 1981, stating that incoming mail being returned to its sender was not recognized as a privileged correspondence under Directive #4421 and, therefore, could be opened out of Billups' presence. Had the letter been sent by a person designated as a privileged correspondent (e.g., attorney, judges, courts and commissioners, etc.), and not by Billups himself, Billups' presence would have been required.

 On October 28, 1991, the CORC upheld Superintendent LeFevre's determination. Plaintiff appealed the denial of his grievance to the Central Office Review Committee ("CORC"), which sustained the denial.

 Plaintiff's second cause of action alleges that his use of the law library resulted in retaliatory dismissal from his assignment in the vocational welding shop program. Billups entered the program on January 18, 1982. According to his November 3, 1982 progress report, Billups showed interest in and a propensity for the subject. In that report, his instructor commented that Billups was one of ...


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