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PEREZ v. METROPOLITAN CORRECTIONAL CTR. WARDEN

May 26, 1998

RAMON PEREZ, Plaintiff, against METROPOLITAN CORRECTIONAL CENTER WARDEN; CORRECTIONAL OFFICER MR. RAMSAMMY; CORRECTIONAL OFFICER MR. MEDINA; CORRECTIONAL OFFICER MR. GOLDEN; CORRECTIONAL OFFICER MR. RODRIGUEZ; OTHER UNKNOWN CORRECTIONAL OFFICERS WHO WORKED IN R&D ON JULY 20, 1992, Defendants.


The opinion of the court was delivered by: SOTOMAYOR

OPINION AND ORDER

 SONIA SOTOMAYOR, U.S.D.J.

 Plaintiff, Ramon Perez, originally filed this Bivens action in June 1995, seeking monetary damages for events arising out of his incarceration at Metropolitan Correctional Center ("MCC") in July 1992. The complaint was initially dismissed sua sponte by Chief Judge Griesa as lacking "an arguable basis in law or in fact" pursuant to 28 U.S.C. § 1915(d). *fn1" Upon appeal, the Second Circuit remanded the complaint to this Court on the limited question of whether defendants' alleged loss or destruction of plaintiff's legal papers violated his constitutional right of access to the courts. Defendants now move to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) or alternatively, for summary judgment pursuant to Fed. R. Civ. P. 56(b). For the reasons discussed below, the Court grants the defendants' motion for summary judgment *fn2" in its entirety and dismisses the complaint.

 BACKGROUND

 In the original complaint, plaintiff alleged that defendant correction officers conspired with plaintiff's cellmate, Kenneth Baez, to trick plaintiff's family into paying him over ten thousand dollars to secure plaintiff's release on bail pending appeal. *fn3" In addition, plaintiff claimed that his personal property, including legal documents, were never forwarded to Otisville from MCC. Plaintiff alleged that correction officer Ramsammy was the person responsible for "packing up" and sending plaintiff's belongings to Otisville. While unclear, plaintiff alleges that this act was part of a conspiracy involving correction officers at MCC and inmate Kenneth Baez. However, plaintiff also argues that his legal documents may have been lost by correction officials.

 After entry of the district court's order and judgment dismissing the complaint, plaintiff filed a notice of appeal in the Second Circuit and moved to proceed in forma pauperis. The Second Circuit granted plaintiff's motion to proceed in forma pauperis :

 
for the following limited purpose: appellant may present argument on the issue of whether the allegations in the complaint regarding the loss of legal documents states a non-frivolous claim for denial of access to the courts.

 The Second Circuit affirmed the district court's dismissal of the conspiracy claim, finding that "plaintiff has failed to allege facts sufficient to show the existence of any conspiracy designed to deprive him of his rights." The Circuit also affirmed the district court's dismissal of plaintiff's loss of personal property claim as plaintiff had failed to exhaust administrative remedies under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-80.

 Thereafter, defendants moved to remand the complaint for the limited purpose of litigating the lost legal documents claim. The Second Circuit granted defendants' motion and remanded the action to this Court "for further proceedings on the issue of whether [plaintiff's] right of access to the courts was violated." The amended complaint recounts in substance the same facts alleged in plaintiff's initial complaint. However, the amended complaint details the legal materials lost and the harm plaintiff allegedly suffered as a result of their loss. According to the amended complaint, plaintiff lost "reports of drug enforcement officers, court orders, transcripts and other legal materials necessary and relevant to plaintiff's then forthcoming sentencing and appeal of his conviction." The complaint also alleges that these materials "would have enabled plaintiff to make challenges to the quantity of illegal substances seized by drug enforcement officers as it related to the appropriate punishment for his conviction; the sufficiency of the evidence for a conviction, and the competence and credibility of prosecution's witnesses." Amended Complaint at P 11. According to plaintiff, because MCC lost "DEA Reports," he was unable to challenge his sentence with respect to the quantity of cocaine seized during his arrest. Perez. Dec. at P 3. In addition, plaintiff maintains that because he did not have documents pertaining to his co-defendant, he was unable to appeal his conviction based on his trial counsel's failure to challenge the co-defendant's competence and credibility. Perez. Dec. at P 4.

 SUMMARY JUDGMENT STANDARD

 Summary judgment may not be granted unless the submissions of the parties taken together "show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995). It is the moving party who bears the

 
initial responsibility . . . of informing the court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact.

 Federal Deposit Ins. Corp. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). Once the moving party has provided sufficient evidence to support a motion for summary judgment, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on "mere allegations or denials" of the facts asserted by the movant. Fed. R. Civ. P. 56(e); accord Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994).

 When deciding a motion for summary judgment, this Court must "view the evidence in a light most favorable to the non-moving party and draw all reasonable inferences in its favor." American Casualty Co. v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir. 1994). Where, as here, a party is proceeding pro se, this Court also has an obligation to "read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994); accord, Soto v. Walker, 44 F.3d 169 (2d Cir. 1995). However, a pro se party's "bald assertion," completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment. Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1995). Rather, to overcome a motion for summary judgment, the non-moving party must provide this Court with some basis to believe that his or her "version of relevant events is not fanciful." Christian Dior-New York, Inc. v. Koret, Inc., 792 F.2d 34, 38 (2d Cir. 1986); Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986) (a non-moving party "must do more than simply show that ...


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