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DIAZ v. COUGHLIN

August 22, 1995

RAFAEL DIAZ, Plaintiff, against THOMAS A. COUGHLIN, III, DOCS Commissioner; CHRISTOPHER ARTUZ, Green Haven Superintendent; W. WRIGHT, Captain; C. ROBINSON, Sergeant; K. OLDEN, C.O., in their individual and official capacities, Defendants.


The opinion of the court was delivered by: GRUBIN

 SHARON E. GRUBIN, United States Magistrate Judge:

 Pending in this action brought by plaintiff pro se pursuant to 42 U.S.C. § 1983 are the defendants' motions for judgment on the pleadings and plaintiff's motion for a temporary restraining order and preliminary injunction. For the following reasons, I recommend that defendants' motions be granted and plaintiff's be denied.

 I.

 The standard for determining whether to grant a motion for judgment on the pleadings under Fed. R. Civ. P. 12(c) is the same as that governing a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.), cert. denied, 130 L. Ed. 2d 28, 115 S. Ct. 73 (1994); Ad-Hoc Committee v. Bernard M. Baruch College, 835 F.2d 980, 982 (2d Cir. 1987). The court must accept the factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 113 S. Ct. 1160, 1161, 122 L. Ed. 2d 517 (1993); Walker v. City of New York, 974 F.2d 293, 298 (2d Cir. 1992), cert. denied, 507 U.S. 961, 122 L. Ed. 2d 762, 113 S. Ct. 1387 (1993) and 113 S. Ct. 1412 (1993); Ad-Hoc Committee v. Bernard M. Baruch College, 835 F.2d at 982. "Consideration is limited to the factual allegations in [the] complaint, to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit." Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993). A complaint should not be dismissed unless, "after viewing plaintiff's allegations in this favorable light, it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Walker v. City of New York, 974 F.2d at 298 (quotation omitted). See Sheppard v. Beerman, 18 F.3d at 150; Ad-Hoc Committee v. Bernard M. Baruch College, 835 F.2d at 982. Moreover, pro se complaints are to be 1iberally construed and given even greater latitude than complaints drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980) (per curiam); Haines v. Kerner, 404 U.S. 519, 520-21, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972) (per curiam); Salahuddin v. Coughlin, 781 F.2d 24, 28 (2d Cir. 1986).

 II.

 Plaintiff is an inmate at the Green Haven Correctional Facility. Named as defendants, in both their individual and official capacities, are Thomas A. Coughlin, III, the former Commissioner of the New York State Department of Correctional Services, Green Haven Superintendent Christopher Artuz, and three officers at Green Haven, Captain W. Wright, Sergeant C. Robinson and Correction Officer K. Olden. On or about November 2, 1993 plaintiff mailed an order for an electric beard trimmer to J & R Music World, enclosing an institutional check for $ 53.44 drawn from his personal account. Complaint PP 9, 10, Ex. A. As set forth in an April 19, 1988 Inter-Departmental Communication from defendant Robinson to the Package Room (the "Package room Memorandum"), Green Haven's policy is that, upon being notified that an item received in the package room is not permitted under New York State Department of Correctional Services ("NYSDOCS") Directive 4911 (on "Packages and Articles Sent or Brought to Facilities"), an inmate must choose immediately between having it returned to the sender or having it destroyed, and if he fails to make that choice at the time of such notification it shall be considered contraband, recorded and destroyed. Complaint P 26, Ex. H. Pursuant to decisions of the NYSDOCS Inmate Grievance Program Central Office Review Committee ["C.O.R.C."], it is also a policy at Green Haven that an inmate who questions a package room officer's determination under Directive 4911 should be allowed to speak with a supervisory staff member prior to disposition of the package. Complaint P 24, Exs. F, I, K, L, M & N.

 When plaintiff's beard trimmer arrived on November 9, 1993, he was called to the package room. Id. P 11. Defendant Olden, the package room officer, refused to deliver it to him, telling him that it was not allowed under Directive 4911. Id. P 12. Plaintiff disagreed and insisted that many Green Haven inmates were using beard trimmers. Id. P 13. Olden continued to explain the device was not permitted and told plaintiff he must choose between having it returned to the store and having it destroyed. Id. P 14. Plaintiff asked to see the package room sergeant or the area supervisor, but Olden denied his request. Id. P 15. Plaintiff refused to make the choice and told Olden that he would bring the matter before the "grievance committee or the grievance sergeant" the following morning. Id. P 16. By the following morning, however, the trimmer had been destroyed. Id. PP 18-19, see Ex. F.

 Directive 4911 includes detailed lists of articles that inmates may receive, subject to various restrictions and qualifications, through a NYSDOCS facility's package room. Some items are allowed to inmates throughout the NYSDOCS system; others, such as electric beard trimmers, are allowed only in facilities that issue "local permits" for them. Neither the complaint nor the text of Directive 4911 makes clear whether local permits were available for electric beard trimmers at Green Haven or, if so, what procedures a Green Haven inmate must follow to obtain one. Drawing all reasonable inferences in favor of plaintiff, I will assume for purposes of the instant motions that it is Green Haven policy to issue local permits for electric beard trimmers, that the ordinary procedure is for such permits to be issued to inmates by the package room officer at the time the inmate receives the item, and that plaintiff therefore had complied with Green Haven's "local permit" requirements. *fn1"

 On November 19, 1993 plaintiff filed two inmate grievances. Complaint P 20. In his first, he attacked the requirement of an immediate choice between return and destruction as, among other things, a violation of the Due Process Clause of the United States Constitution and argued that a "meaningful predeprivation process" was required, either "some kind of a hearing" or a 30-day grace period within which to pursue a grievance. Id. PP 26-27, Ex. D at pp. 2, 4, 7. Defendant Artuz denied this grievance on January 27, 1994, relying on prior C.O.R.C. decisions that

 
there is no requirement that such items be held for [30 days] while an inmate makes up his mind regarding the disposition. It is only required that the inmate be given a clear notice and the opportunity to make a choice regarding disposition. If the inmate refuses to make a choice, the Package Room staff may proceed to dispose of the property. C.O.R.C. believes it is reasonable, however, to allow an inmate to speak to a supervisory staff member if there is a question regarding the acceptability of a certain item prior to its disposition.

 Id. Ex. I. *fn2" On plaintiff's second grievance, which simply requested the return of his trimmer, id. P 22, Ex. E, Artuz ruled as follows:

 
Grievance is accepted in part, to the extent that the disputed item should have been reviewed by the area supervisor prior to destruction. Grievant is referred to the Inmate Claims Process.

 Id. Ex. G. Plaintiff does not state that he made any attempt to follow up Artuz's ruling by pursuing the matter through the Inmate Claims Process, nor is there anything in the record to suggest that he would not have ...


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