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January 18, 2002


The opinion of the court was delivered by: William C. Conner, Senior District Judge.


Pro se plaintiff Garrick John brings the instant action under 42 U.S.C. § 1983 against defendants New York City Department of Corrections ("NYDOC"), Warden Albert Thompson, Captain Steven Watts, Correction Officer ("C.O.") Gloria Dry and C.O. Michael Lello. Plaintiff alleges deprivation of due process under the Fourteenth Amendment and denial of his right of access to the courts in violation of the First and Fourteenth Amendments. Defendants move to dismiss the Complaint pursuant to: (1) the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e for failure to properly exhaust available administrative remedies; (2) FED.R.CiV.P. 12(b)(6) for failure to state a claim; and (3) collateral estoppel and res judicata. Plaintiff cross-moves for leave to amend the Complaint to: (1) reflect the personal involvement of Thompson; (2) allege an injury suffered; (3) allege a disparate treatment claim; (4) allege a claim for ineffective assistance of counsel; and (5) name as defendant then Commissioner of the NYDOC Bernard Kerick. For the reasons that follow defendants' motion to dismiss is granted and plaintiffs motion for leave to amend is denied.


The facts set forth herein are gleaned from the pleadings and affidavits, and are construed in the light most favorable to plaintiff.*fn1 They do not constitute findings by the Court.

I. The Complaint

During the relevant time period, plaintiff was an inmate at the Manhattan Detention Complex ("MDC") in New York. On August 18, 1998, Dry called plaintiffs name while delivering mail to the MDC inmates. (Complt. ¶¶ 1-2.) When plaintiff responded, he noticed that Dry was inspecting legal materials sent through the mail to plaintiff by his attorney. (Id. ¶¶ 4-7.) Plaintiff protested and requested that Dry call the captain on duty, but Dry refused. Plaintiff then notified Celia Uehara, legal coordinator for the MDC law library, that Dry was reading his legal mail. (Id. ¶¶ 9-10.) When plaintiff returned to Dry's desk, he was informed that Dry was confiscating several photocopies of U.S. currency because it was considered contraband. (Id. ¶ 11.) Plaintiff requested a copy of the prison rule that categorized photocopies of money as contraband. (Id. ¶ 13.) Dry refused to give plaintiff a copy of the rule and, as a consequence, plaintiff refused to sign a book indicating that he had received all of his legal mail. (Id. ¶¶ 11-15.) The mail was subsequently returned to plaintiffs attorney. (Id. ¶ 17.) Later the same day, plaintiff informed Watts of the incident and again requested a copy of the prison regulation. (Id. ¶¶ 20, 22.) Watts refused and told plaintiff to file a grievance. (Id. ¶¶ 23.) Plaintiffs attorney, Michael Yucevicius, visited on September 1, 1998 with the photocopies of the money that were previously returned. However, at the conclusion of the meeting, Lello confiscated the photocopies and returned them to Yucevicius. (Id. ¶ 27.)

Plaintiff argues that all defendants acted in concert pursuant to a policy directive issued by Thompson. He alleges that, as a result, he was denied the First Amendment right of access to the courts as well as procedural due process under the Fourteenth Amendment. (Id. ¶ 36.)

II. Proposed First Amended Complaint

Plaintiff concedes that the Complaint failed to properly allege Thompson's personal involvement, failed to provide all the allegations necessary to establish the injury suffered and failed to name NYDOC Commissioner Bernard Kerick as a defendant. (Pl.Mem.Supp.Mot.Am.Complt. ¶¶ 13.) In his Proposed First Amended Complaint, plaintiff names Kerick and supplements the factual allegations in the initial Complaint as follows:

The photocopies of money that Dry confiscated on August 18, 1998 were attached to photocopies of Western Union checks. (Proposed 1st Am.Complt. ¶ 16.) Other inmates with drug sale charges successfully receive photocopies of United States currency through the mail from their attorneys. (Id. ¶ 17.) On August 24, 1998, plaintiff filed a grievance with the Inmate Grievance Resolution Committee ("IGRC") regarding the incident. (Id. Ex. F.) In his grievance, plaintiff alleged that his mail was improperly searched and confiscated. (Id.) Plaintiff explained that he expected his attorney to visit on September 1, 1998, and that he did not want to encounter a similar problem with Dry. (Id.) He further explained that he needed the photocopies because they would be admissible as evidence against him at his trial. (Id.)

Plaintiff additionally alleged in his grievance that the prison regulations did not give proper notice that photocopies of currency are contraband. The relevant prison regulations state:

Section 12.5 Prohibited Items in Incoming Correspondence
(a) When an item found in incoming correspondence involves a criminal offense, it may be forwarded to the appropriate authority for possible criminal prosecution. In such situations, the notice required by Section 12.6(c) may be delayed if necessary to prevent interference with an ongoing criminal investigation.
(b) A prohibited item found in incoming prisoner correspondence that does not involve a criminal offense shall be returned to the sender, donated or destroyed, as the prisoner wishes.
(c) Within 24 hours of the removal of an item, the Board and the intended prisoner shall be sent written notification of this action. This written notice shall include:

(i) the name and address of the sender;

(ii) the item removed;

(iii) the reasons for removal;

(iv) the choice provided by Section 12.6(b); and

(v) the appeal procedure.

(Id., Ex. H.) Plaintiff argues that this provision is unconstitutionally vague and failed to provide the minimal procedural safeguards required by the Constitution. (Id. ¶¶ 47, 50.)

During his meeting with Yucevicius on September 1, 1998, plaintiff observed a conversation between Dry and Lello. (Id. ¶ 29.) Plaintiff alleges that Lello searched and confiscated the photocopies as a result of this conversation. (Id. ¶ 31.) After the meeting, plaintiff filed a second grievance with the IGRC. (Id., Ex. F-1.) Plaintiff notified the IGRC that he had not received a response from his prior grievance and again requested a hearing. (Id.) After failing to receive any response to either grievance, plaintiff filed a notice of appeal directly to Kerick on December 18, 1998. (Id., Ex. G.) Plaintiff did not receive any response and a grievance hearing was never held.

In plaintiffs criminal trial, the State contended that plaintiff was paid with the Western Union checks to commit assault, attempted murder, murder in the second degree and conspiracy to commit murder. (Id. ¶ 34.) Plaintiff alleges that he was unable to challenge the State's witness because he was not allowed to keep the photocopies of the checks. (Id. ¶ 35.) He argues that if he had been given the opportunity to examine the checks prior to trial, he would have been able to locate and question the individuals responsible for wiring the money to plaintiff. (Id. ¶ 36.) Plaintiff claims that ...

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