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SMITH v. O'CONNOR

September 26, 1995

ERIC SMITH, Plaintiff, against SGT. F.V. O'CONNOR; OFFICER M. BLACK; OFFICER E. DERIOS, Defendants.


The opinion of the court was delivered by: SOTOMAYOR

 Pro se plaintiff brings this 42 U.S.C. § 1983 action alleging that defendants scattered and destroyed his personal property, including legal papers, during a search of his cell at Sing Sing Correctional Facility on August 26, 1994. Defendants, Sing Sing correctional officers, move to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure on the ground that the complaint fails to state a claim upon which relief can be granted. In response to defendants' motion, plaintiff filed a "Notice of Motion Amended Complaint" which I construe as his opposition to defendants' motion to dismiss as well as a cross-motion to amend the complaint. Defendants submitted additional papers opposing plaintiff's cross-motion to amend and in further support of their motion to dismiss. For the reasons discussed below, defendants' motion to dismiss the complaint is granted and plaintiff's motion to amend the complaint is denied.

 DISCUSSION

 Once a defendant files a motion to dismiss under Rule 12(b)(6), the district court must review the complaint "to assess the legal feasibility of the complaint." Moore v. Murphy, No. 94 Civ. 3287 (SS), 1995 U.S. Dist. LEXIS 5468, at *6 (S.D.N.Y. Apr. 26, 1995) (citing Kopec v. Coughlin, 922 F.2d 152, 155 (2d Cir. 1991)). The issue "is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). Therefore, the court must view the complaint in a light most favorable to the plaintiff, and accept the factual allegations stated in the complaint as true. See Jackson Nat'l Life Ins. Co. v. Merrill Lynch & CO., 32 F.3d 697, 699-700 (2d Cir. 1994) (citation omitted); Walker v. City of New York, 974 F.2d 293, 298 (2d Cir. 1992), cert. denied, 507 U.S. 961, 113 S. Ct. 1387, 122 L. Ed. 2d 762, (1993); Frazier v. Coughlin, 850 F.2d 129, 129 (2d Cir. 1988).

 A Rule 12(b)(6) motion can only be granted where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Staron v. McDonald's Corp., 51 F.3d 353, 355 (2d Cir. 1995) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957) (footnote omitted)); see Cohen v. Koenig, 25 F.3d 1168, 1171-72 (2d Cir. 1994) (same); Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (same), cert. denied, 129 L. Ed. 2d 867, U.S. , 114 S. Ct. 2749 (1994); Ricciuti v. New York City Transit. Auth., 941 F.2d 119, 123 (2d Cir. 1991) (same); Frazier, 850 F.2d at 129 (same). Moreover, as a pro se litigant, plaintiff is entitled to significant liberality in how his pleadings are construed and pleadings such as plaintiff's are held "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520-21, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972) (per curiam); see Ortiz v. Cornetta, 867 F.2d 146, 148 (2d Cir. 1989).

 To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that a person acting under color of state law, deprived him of a right, privilege or immunity secured by the Constitution, laws or treaties of the United States. 42 U.S.C. § 1983; see Sykes, 13 F.3d at 519 (citing Day v. Morgenthau, 909 F.2d 75, 77 (2d Cir. 1990), cert. denied, 506 U.S. 821, 113 S. Ct. 71, 121 L. Ed. 2d 37 (1992)). "Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere." Sykes, 13 F.3d at 519 (citation omitted). The instant action may be viewed as raising two different claims under § 1983: a claim that plaintiff was deprived of his property without due process, and a claim that defendants' actions improperly obstructed plaintiff's access to the courts.

 BACKGROUND

 Plaintiff alleges that on August 26, 1994, while reading in his cell, defendants O'Connor, Black and Derior "showed up for a special cell frisk". Proposed Amended Complaint, at 2. Plaintiff watched defendants search his cell and rummage through his personal property. Complaint, at 3; Proposed Amended Complaint, at 2. Defendants scattered plaintiff's belongings throughout the cell and dropped plaintiff's legal papers into the toilet "as though that was where they belonged." Proposed Amended Complaint, at 3. Defendants then flipped over plaintiff's locker and "stepp[ed] on paper work that they had intentionally dropped on the floor, without making any attempt to put it where they originally got it, as required by facility policy and procedure." Id.

 A. Plaintiff's Due Process Property Deprivation Claim

 A claim for deprivation of property cannot lie in federal court if the state courts provide an adequate remedy for the deprivation of that property. Hudson v. Palmer, 468 U.S. 517, 533, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984); Parratt v. Taylor, 451 U.S. 527, 542-43, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981) overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327, 330-31, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986); Marino v. Ameruso, 837 F.2d 45, 47 (2d Cir. 1988) (citations omitted). New York provides such a remedy in § 9 of the New York Court of Claims Act which permits an inmate to pursue a claim for deprivation of property against the State of New York in the New York Court of Claims. See DeMaio v. Mann, 877 F. Supp. 89, 95 (N.D.N.Y. 1995); McCorkle v. Walker, 871 F. Supp. 555, 560 (N.D.N.Y. 1995); Forman v. Coughlin, No. 93 Civ. 8412 (LAK), 1994 U.S. Dist. LEXIS 18103, at *3-4 (S.D.N.Y. Dec. 20, 1994) ("New York has adequate remedies [for deprivation of property claims] via recourse to the New York Court of Claims. The Constitution requires nothing further."). Because New York State provides an adequate post-deprivation remedy for destruction of his property, plaintiff may pursue his claim in state court.

 Plaintiff's failure to take advantage of the state procedures does not convert his cause of action into a constitutional due process claim. See Franco v. Kelly, 854 F.2d 584, 588 (2d Cir.) ("Parratt continues, even after Daniels v. Williams, to stand for the proposition that 'section 1983 cannot be made a vehicle for transforming mere civil tort injuries into constitutional injuries.'" Id. (quoting Morello v. James, 810 F.2d 344, 347 (2d Cir. 1987))). Because plaintiff was not deprived of his property without due process of law in that he had an adequate remedy to vindicate his alleged loss, he cannot state a claim for relief under § 1983 that his constitutional rights were violated. See Love v. Coughlin, 714 F.2d 207, 208-09 (2d Cir. 1983) (per curiam).

 Plaintiff's claim that defendants failed to follow the New York State Department of Corrections Directives regarding cell search procedures must also be dismissed. Under Directive #4910, correctional officers are required to conduct a cell search "thoroughly and orderly." In addition,

 
care is to be taken to avoid damage or destruction to property. Every effort shall be made to leave the living quarters in the same condition they were prior to inspection. If an inmate's property is damaged, the employee conducting the search shall report it to his supervisor in writing . . . If possible, ...

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