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WARBURTON v. UNDERWOOD

March 19, 1998

JOHN WARBURTON, 94-B-1581, Plaintiff,
v.
ROXANNE UNDERWOOD, Inmate Records Coordinator Groveland Correctional Facility; M. E. JONES, Correction Counselor, individually as inmate assistant; DEBBIE ZEH, Committee Member, Individually; DEPUTY SUPERINTENDENT PERKINS, Committee Member, Individually; TIMOTHY MURRAY, Superintendent, Individually, Affirming Determination; GLENN S. GOORD, Commissioner of Corrections, Individually, Affirming Determination; and DONALD SELSKY, Commissioner's Designee, Individually, Affirming Determination; Defendants.



The opinion of the court was delivered by: SIRAGUSA

DECISION AND ORDER

 INTRODUCTION

 Plaintiff John Warburton, an inmate of the Groveland Correctional Facility, has filed this pro se action seeking relief under 42 U.S.C. § 1983 (Docket # 1) and has both requested permission to proceed in forma pauperis and filed a signed Authorization (Docket # 2). Plaintiff has also filed an amended complaint (Docket # 3) and a motion for default judgment (Docket # 4). Plaintiff claims that the defendants, Inmate Records Coordinator Roxanne Underwood, Correction Counselor M. E. Jones, Debbie Zeh, Superintendent Timothy Murray, Deputy Superintendent Perkins, of the Groveland Correctional Facility, and Commissioner Glenn S. Goord and Donald Selsky, of the New York State Department of Correctional Services (DOCS), have violated his constitutional rights by denying him access to the courts and in the conduct and result of a Time Allowance Committee Hearing. For the reasons discussed below, plaintiff's request to proceed as a poor person is granted, a number of plaintiff's claims are dismissed pursuant to 28 U.S.C. § 1915, plaintiff's request for entry of default judgment is denied, and service is directed with respect to the remaining claim.

 FACTS

 Plaintiff alleges in his original complaint, filed December 16, 1997, that on November 24, 1997, defendant Underwood served him court papers one day before the scheduled court date, after she allegedly had held them for nearly two weeks, thereby allegedly violating his constitutional right of access to the courts.

 In his amended complaint filed January 30, 1998, plaintiff alleges that on January 16, 1998, defendant Underwood scheduled a Time Allowance Hearing in retaliation for his filing grievances and the complaint in this action against her. On January 20, 1998, defendant M. E. Jones allegedly failed to perform her duty as his inmate counselor in that she was "evasive in answering Plaintiff's Questions," refused to tell him why the hearing had been convened, and refused to obtain "certain relevant documents relating to Plaintiff Defense," allegedly in retaliation for plaintiff's grievances and lawsuit. Amended Complaint, P Four.

 Plaintiff claims that on January 21, 1998 he was transported to the main facility of Groveland Correctional Facility, apparently to attend a court-ordered deposition in another case. Plaintiff told the officers who were transporting him that he had filed an appeal of the order, which he claims had the effect of staying the deposition. The officers nevertheless took him to the deposition, telling him that if they are told to take him somewhere, they must take him, and that if he refuses to go, he will be charged with a Tier III offense. According to plaintiff, the officers, whom plaintiff has not named as defendants, were under the supervision of defendant Murray, who was not physically present during the transportation.

 Defendant Underwood allegedly came to the room in which the deposition was being held and introduced herself to several of the people present. She allegedly had no reason to be there other than to "inflame plaintiff" and in retaliation for his filing of the grievances and complaint. Amended Complaint, P Six.

 Plaintiff's Time Allowance Committee ("TAC") hearing, convened on January 22, 1998, was "attended" by people plaintiff claims are his legal adversaries in state and federal Court proceedings, thereby allegedly depriving him of his right to a fair and impartial hearing. Amended Complaint, P Seven. Plaintiff also alleges that defendants Underwood, Zeh and Perkins conspired to deprive him of due process by refusing to record the hearing and refusing to permit him to enter evidence in his defense, in retaliation for his filing of grievances and lawsuits.

 Plaintiff also alleges that defendants Underwood, Zeh, Perkins and a defendant in another of his lawsuits, identified only as Wenderlich, conspired to violate his right to be free of religion and to coerce and extort him by withholding his earned time allowance from him and utilizing tax monies to force religion on him by directing him to participate in the Narcotics Anonymous program as a condition of the restoration of some of his good time. He further alleges that these acts were done in retaliation for his having filed grievances and lawsuits. *fn1"

 The TAC determination was subsequently upheld, first by defendant Murray and then by defendant Selsky acting on behalf of defendant Goord, allegedly in conspiracy with all the other defendants and in violation of plaintiff's constitutional rights.

 Plaintiff seeks $ 3,000,000 in damages for each of the claims against the defendants; plaintiff also seeks release from custody.

 DISCUSSION

 Plaintiff has met the statutory requirements of 28 U.S.C. § 1915(a) and filed an Authorization with respect to this action. Therefore, plaintiff is granted permission to proceed in forma pauperis.

 Section 1915 mandates that when the court grants in forma pauperis status, it also must conduct an initial screening of the action to ensure that it goes forward only if it meets certain qualifications. A review of plaintiff's complaint demonstrates that most of plaintiff's claims are based on indisputably baseless legal theories and thus these claims are subject to dismissal under 28 U.S.C. § 1915(e). Neitzke v. Williams, 490 U.S. 319, 327, 104 L. Ed. 2d 338, 109 S. Ct. 1827 (1989).

 Plaintiff brings this action pursuant to 42 U.S.C. § 1983. In order to state a claim under § 1983, a plaintiff must allege: (1) that the challenged conduct was attributable at least in part to a person acting under color of state law; and (2) that such conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States. Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993).

 As an initial matter, the Court notes that plaintiff did not grieve the issues raised in the original complaint, and it appears that he may well have not grieved the claims against the defendants in his amended complaint either. Although plaintiff states that he did not grieve his claim against defendant Underwood in the original complaint because it is not grievable, 42 U.S.C. § 1997e in fact requires that administrative remedies must be exhausted with respect to all actions brought by a prisoner regarding prison conditions. *fn2" Thus, because plaintiff failed to exhaust his administrative remedies, the claim against defendant Underwood that she denied plaintiff access to the courts is subject to dismissal pursuant to § 1997e(a). As for his allegations in the amended complaint, the only allegation that plaintiff appears to have exhausted is the determination of the Time Allowance Committee. Accordingly, all of plaintiff's claims except for the determination of the Time Allowance Committee are also subject to dismissal for plaintiff's failure to exhaust his administrative remedies before bringing this action.

 The Court does not rely upon § 1997e(a), however, because the claims are also subject to dismissal for substantive reasons under § 1997e(c), which provides that

 
in the event that a claim is, on its face, frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief, the court may dismiss the underlying action without first requiring the exhaustion of administrative remedies.

 42 U.S.C. § 1997e(c).

 THE ORIGINAL COMPLAINT

 Plaintiff claims that defendant Underwood did not serve him with court papers until the day before the court date. While it is true that under the Constitution a correctional facility must provide an inmate with meaningful access to the courts, Bounds v. Smith, 430 U.S. 817, 828, 52 L. Ed. 2d 72, 97 S. Ct. 1491 (1977), the mere delay in serving some court documents does not state a constitutional claim. "'The Constitution requires no more than reasonable access to the courts.'" Jermosen v. Coughlin, 877 F. Supp. 864, 871 (S.D.N.Y. 1995), quoting Pickett v. Schaefer, 503 F. Supp. 27, 28 (S.D.N.Y. 1980). Moreover, in order to state a constitutional claim, a plaintiff must make a showing that he has suffered, or will imminently suffer, actual harm, that is, that he was "hindered [in] his efforts to pursue a legal claim." Lewis v. Casey, 518 U.S. 343, , 116 S. Ct. 2174, 2180, 135 L. Ed. 2d 606 (1995). Accord Morello v. James, 810 F.2d 344, 347 (2d Cir. 1987).

 Thus, plaintiff must show that he has suffered an actual injury traceable to the challenged conduct of prison officials -- that is, that a "nonfrivolous legal claim had been frustrated or was being impeded" due to the actions of prison officials. Lewis, 518 U.S. 343, , 116 S. Ct. 2174, 2179, 2181, 135 L. Ed. 2d 606. Taking plaintiff's claim as true, he nevertheless "offers no facts to explain how a fourteen day delay in service prejudiced [plaintiff's] ability to seek redress from the judicial system." Smith v. O'Connor, 901 F. Supp. 644, 649 (S.D.N.Y. 1995). Accordingly, plaintiff's claim that he has been denied access to the courts by defendant Underwood is hereby dismissed with prejudice.

 THE AMENDED COMPLAINT

 The January 21, 1998 Deposition Claim

 Plaintiff's allegation that defendant Underwood violated his constitutional rights by appearing at his January 21, 1998 deposition and introducing herself to others at the deposition "with a direct intent to inflame Plaintiff," Amended Complaint, P Six, also fails to state a claim. Although plaintiff does not state the basis for his claim that this conduct violates his constitutional rights, giving plaintiff's complaint a liberal interpretation, Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972), the Court construes this as a claim that plaintiff was subjected to cruel and unusual punishment in violation of the Eighth Amendment. A prison official violates the Eighth Amendment prohibition against "cruel and unusual punishment "when two requirements are met." Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir. 1997). First, the alleged punishment must be found to be "'objectively, sufficiently serious.'" Id., quoting Farmer v. Brennan, 511 U.S. 825, 834, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994). "'Under the objective standard, conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional.'" Boddie, supra, quoting Rhodes v. Chapman, 452 U.S. 337, 347, 69 L. Ed. 2d 59, 101 S. Ct. 2392 (1981). "Second, the prison official involved must have a 'sufficiently culpable state of mind.'" Boddie, supra, quoting Farmer, supra. Plaintiff has failed to meet either prong of this test here; the fact that he became "inflamed" by the presence of the defendant fails to demonstrate that her presence was objectively serious. In addition, plaintiff's conclusory allegation regarding defendant Underwood's alleged intent in stopping by the deposition, especially taken in conjunction with his description of what Underwood did when she was there (she merely introduced herself to two people), fails to demonstrate the requisite culpable state of mind.

 The Court also construes this claim as asserting a violation of plaintiff's right to privacy, in that plaintiff alleges that defendant Underwood had no legitimate reason for appearing at his deposition. However, the courts have continually held that prisoners have only limited rights to privacy. See e.g. Bell v. Wolfish, 441 U.S. 520, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979) (upholding constitutionality of double-bunking and body cavity searches); Hudson v. Palmer, 468 U.S. 517, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984) (prisoners have no reasonable expectations of privacy in their cell). Given that plaintiff has alleged only that the defendant introduced ...


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