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April 3, 1995


JOHN T. CURTIN, United States District Judge

The opinion of the court was delivered by: JOHN T. CURTIN

CURTIN, District Judge

 Plaintiff Donald Frazier *fn1" filed suit against defendant Correctional Officers Adolph Forgione and Michael Williams *fn2" under 42 U.S.C. § 1983, claiming that the defendants intentionally withheld certain legal papers from him for a period of more than two years in violation of the First Amendment, the due process clause of the Fifth and Fourteenth Amendments, and the privilege and immunities clauses. Defendants do not dispute their failure to deliver the legal materials, but deny any intent to deprive plaintiff of his papers. Defendants contend that while plaintiff may have shown some negligence on their part, he has not proven that their conduct was intentional.

 I. Admission of Plaintiff's Deposition Testimony

 As a preliminary matter, the plaintiff seeks inclusion of his deposition testimony into evidence because he was not present at the trial. The trial was originally scheduled to begin on November 7, 1994. Notice of the trial date was given to plaintiff's counsel at a meeting in early September and confirmed by order entered several days later. Notice of the trial date was also given to plaintiff, who was then in custody in a New York State correctional facility. Before the trial began, plaintiff completed his state court sentence and was released.

 A few days before November 7, plaintiff's counsel informed the court that he had not been able to contact his client. On November 7, 1994, at counsel's urging, the trial was adjourned until December 6, 1994, with the understanding that the trial would proceed on that date whether or not plaintiff was available.

 When plaintiff did not arrive in court on December 6, his attorney attempted to offer his deposition testimony, citing Rule 32(a)(3)(B) of the Federal Rules of Evidence. Under that section, the deposition of a witness, whether or not a party, may be used at trial by any party for any purpose if the court finds that the witness is at a greater distance than 100 miles from the place of trial, unless it appeared that the absence of the witness was procured by the party offering the deposition. In several cases, depositions of missing plaintiffs have been permitted. Richmond v. Brooks, 227 F.2d 490 (2d Cir. 1965); Carey v. Bahama Cruise Lines, 864 F.2d 201 (1st Cir. 1988). In this district, in Nash v. Heckler, 108 F.R.D. 376 (W.D.N.Y. 1985), Judge Elfvin permitted a deposition into evidence where the witness was more than 100 miles from the place of trial.

 II. Factual Findings

 Since plaintiff was not present, the record was developed through exhibits and the testimony of the defendants, who were called as witnesses by plaintiff's attorney. Based on that record, the following constitutes the court's findings of fact and conclusions of law.

 In 1987, plaintiff Donald Frazier was an inmate at Collins Correctional Facility, assigned to work in the prison library as a clerk. Generally, he was under the supervision of Michael Williams, who was the regularly assigned law library officer. When Williams was unavailable or had a day off, defendant Adolph Forgione took his place. Frazier used an assigned desk where he stored various legal materials in the library.

 On April 17, 1987, another inmate accused plaintiff of assaulting him. Although plaintiff denied any involvement in the alleged attack, he was charged with violating prison rules prohibiting assault. A Tier III hearing was held, and plaintiff was found guilty of the charge and sentenced to two months' confinement in the Collins Secured Confinement Area ("SCA").

 Shortly after plaintiff went to the SCA, Williams instructed a clerk to take Frazier's legal papers from his desk and place them in an envelope, on which Williams printed "Frazier 86-T-0155." This envelope (Ex. 29) contained the legal papers at issue (Exs. 30-67). According to Williams, these papers were placed in the drawer of the desk which Frazier had been using.

 Correctional Officer Forgione testified that another officer asked him to retrieve Frazier's legal papers from Frazier's desk and take them to Frazier. Forgione searched the desk and located some papers, which he showed to Frazier. Frazier said that these were not the papers he was looking for. Rather, they were described as legal notes which Frazier had taken while ...

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