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March 12, 2002


The opinion of the court was delivered by: Charles J. Siragusa, United States District Judge.


This is an action in which the pro se prisoner plaintiff is suing various employees of the New York State Department of Correctional Services ("DOCS"), pursuant to 42 U.S.C. § 1983 and 1985. Now before the Court is plaintiff's motion for summary judgment [#40] and defendants' cross-motion for summary judgment [#45]. For the reasons that follow, plaintiff's motion is denied in its entirety, and defendants' motion is granted in part and denied in part.


Plaintiff, an inmate at Southport Correctional Facility, commenced this action on February 26, 2000. The general facts of this case were set forth in an earlier Decision and Order [#6] of this Court. It is sufficient at this point to note that, while plaintiff's complaint contains eighteen*fn1 causes of action, he is essentially asserting four claims: 1) that, on multiple occasions, defendants Gardner, McGinnis, Morse, Cleveland, and Murphy, conspired to violate, and did violate, his civil rights by withholding his mail, reading his mail, and disposing of his legal documents; 2) that on August 29, 1998, defendants Furman, Gantert, Hughson, and Ameigh, acting with deliberate indifference, failed to protect him from an assault by another inmate; 3) that, on September 8, 1998, defendant Cerio, in his capacity as a Disciplinary Hearing Officer, convicted plaintiff of refusing to obey an order, despite a lack of evidence; and 4) that defendants McGinnis, Morse, Cleveland, and Shaw, acting with deliberate indifference, deprived him of his bed linens during cold weather.

On February 7, 2001, plaintiff filed a motion for partial summary judgment [#40] as to defendants McGinnis, Morse, Gardner, Shaw, and Cleveland, with regard to claims 1, 2, 3, 5, 7, 8, which pertain to some of the alleged instances of mail and legal tampering, and as to McGinnis, Morse, Cleveland, and Shaw, with regard to claim 29, which pertains to the alleged deprivation of his bed sheets.*fn2 In support of the motion, plaintiff has submitted an affidavit, in which he essentially reiterates the allegations contained in the complaint, documentary exhibits, consisting primarily of correspondence between plaintiff and various prison officials, and inmate grievances concerning alleged violations of prison procedures. Plaintiff indicates that he is entitled to summary judgment, not because there are no triable issues of fact, but because "the preponderance of the evidence weighs in [his] favor." (Plaintiff's Declaration, ¶ 6; Plaintiff's Brief, ¶¶ 16, 23, 41, 42). On May 25, 2001, defendants McGinnnis, Morse, Gardner, Cleveland, Murphy, Shaw, and Cerio filed an opposition to plaintiff's motion, as well as a cross-motion for partial summary judgment [#45].

Defendants' first ground for summary judgment is that many of the claims in the instant case are barred by a settlement agreement from an earlier proceeding, 98-CV-6554 CJS. It is necessary, for purposes of analyzing defendants' motion, to summarize the facts of that earlier matter. On December 1, 1998, the plaintiff, David C. Moore, commenced case number 98-CV-6554 in the United States District Court for the Western District of New York, against the following individuals: Glenn Goord, Commissioner of the New York State Department of Correctional Services ("DOCS"); Michael McGinnis, Superintendent of Southport Correctional Facility; Deputy Superintendent Richard Morse; Captain Rocky Hazelton; Lieutenant Palmer; Sergeant D. Shaw; Corrections Officer Edwin Huffner; Corrections Officer James Santos; Corrections Officer James Moss; Corrections Officer M. Furman; nurse Kathy Felker; and nurse Paul Daugherty. In that action, plaintiff alleged that, on October 4, 1997, Huffner, Moss, and Santos, assaulted him, while Shaw observed the incident but failed to intervene. Plaintiff further alleged that Felker and Daugherty acted with deliberate indifference to his medical needs, by failing to treat the injuries he sustained during the alleged assault. Plaintiff also contended that subsequently, Huffner and Santos issued false misbehavior reports about the incident. Additionally, plaintiff claimed that he wrote letters about the incident to McGinnis and Goord, but that they took no action, and that, subsequently, defendant Palmer conducted an unfair disciplinary hearing of the charges against him. Plaintiff's complaint also referred to a disciplinary report which Furman wrote against him on August 30, 1998, and alleged that McGinnis unfairly suspended his visiting privileges on September 6, 1998, and that, between October 4, 1997 and August 29, 1998, Goord, McGinnis, Morse, and Hazelton, unlawfully imposed deprivation/restraint orders against him. (98-CV-6554 Complaint [#1]).

On October 12, 1999, in connection with that lawsuit, plaintiff wrote to the clerk of this Court, asking that he be provided with copies of his filings, because the "jail" had destroyed his copies of his legal papers. Plaintiff also indicated that he had filed inmate grievances against the "jail for destroying [his] law work." On December 9, 1999, during pre-trial proceedings in that case, plaintiff submitted an affidavit [#10] to the Honorable Jonathan W. Feldman, United States Magistrate Judge, complaining that Ms. Deane Gardner, Senior Mail Clerk at Southport, was unlawfully prohibiting plaintiff from receiving certain mail. More specifically, he alleged that, on November 23, 1999, Gardner had improperly returned mail which had been sent to him by his friend, Linda Maricle, who was assisting him with the typing of his legal papers. Plaintiff asked Magistrate Judge Feldman to direct Gardner to allow him to receive his mail from Ms. Maricle, so that he could be prepared for a scheduling conference to be held before Judge Feldman on December 22, 1999. The court file does not indicate what, if any, action Judge Feldman took in response to plaintiff's application. In any event, although plaintiff notified the Court about the alleged destruction of his papers and the alleged tampering with his mail, he never amended the complaint in case number 98-CV-6554 to add those claims.

On October 19, 2000, the parties to case number 98-CV-6554 settled that action. The Stipulation and Order of Settlement [#17], drafted by counsel for the defendants, and approved and ordered by the undersigned, recited that, in exchange for payment of $3,000, plaintiff was agreeing that, "[a]ny and all claims for damages by plaintiff which are the subject of this action or otherwise arise out of any incident alleged in the complaint are hereby settled." (Settlement Agreement, ¶ 2). The settlement agreement further stated that plaintiff agreed to release

each of the defendants and any and all current or former employees of the New York State Department of Correctional Services, in his/her/their individual and official capacities, and his/her/their heirs, executors, administrators and assigns, and the State of New York and the New York State Department of Correctional Services, from any and all claims, liabilities and causes of action including but not limited to claims related to or arising out of any alleged violation of plaintiff's constitutional rights, and all other causes of action and claims of liability arising out of the circumstances set forth in the complaint in the above-captioned action.

(Id., ¶ 4).

Defendants now contend that, as part of the settlement agreement in case number 98-CV-6554, plaintiff released them from liability for many of the causes of action asserted in this action. More specifically, they contend that the 1st, 3rd, 4th, 5th, 7th, 25th, 26th, 27th, and 30th causes of action are barred, because in them, plaintiff alleges that they tampered with mail and papers pertaining to case number 98-CV-6554. In other words, they contend that because some of the claims in this action involve alleged tampering with mail and papers from the settled action, they are barred by the settlement agreement. Defendants further contend that they are entitled to summary judgment on the merits as to all of plaintiff's claims.

The Court has thoroughly reviewed the parties' submissions and the entire record in this action.


The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)), cert denied, 517 U.S. 1190 (1996).

Once that burden has been established, the burden then shifts to the non-moving party to demonstrate "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). To carry this burden, the non-moving party must present evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 249. Summary judgment is appropriate only where, "after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party." Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993). The parties may only carry their respective burdens by producing evidentiary proof in admissible form. FED. R. CIV. P. 56(e). The underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962).

A court should read a pro se litigant's papers liberally, interpreting them "to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However, when alleging a violation of a civil rights statute, even a pro se litigant must make "specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning." Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987).

Plaintiff brings this action pursuant to 42 U.S.C. § 1983 and 1985(3). As to claims for conspiracy pursuant to 42 U.S.C. § 1985, it is well settled that,

[t]o prevail on a § 1985(3) claim, a plaintiff must prove that the defendants: (1) engaged in a conspiracy; (2) for the purpose of depriving him or her of equal protection, or equal privileges and immunities under the law; (3) acted in furtherance of the conspiracy; (4) deprived the plaintiff of the exercise of any right or privilege of a citizen of the United States; and (5) were motivated by discriminatory animus.

With regard to claims under 42 U.S.C. § 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). To be liable for money damages under 42 U.S.C. § 1983, a defendant must have been personally involved in the alleged constitutional deprivation. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). Personal involvement by a supervisory official may be shown by evidence that:

(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.

Id.(citations omitted). A plaintiff may not rely upon the doctrine of respondeat superior to establish supervisory liability under 42 U.S.C. § 1983. Monell v. New York City Department of Social Services, 436 U.S. 658, 691-95 (1978).

Plaintiff's Motion for Summary Judgment

Plaintiff's motion for summary judgment [#40] must be denied, because plaintiff has not met the requirements of Fed.R.Civ.P. 56. As noted above, plaintiff, in his motion papers, indicates that he is entitled to summary judgment because "the preponderance of the evidence weighs in [his] favor." (Plaintiff's Declaration, ¶ 6; Plaintiff's Brief, ¶¶ 16, 23, 41, 42). Plaintiff does not claim, and has not demonstrated, that there are no triable issues of fact, or that he is entitled to judgment as a matter of law. Accordingly, his motion for summary judgment is denied.

Defendants' Motion for Partial Summary Judgment Based Upon the Settlement in Case Number 98-CV-6554

Defendants' motion on this ground is also denied. Defendants' allege that many of the claims in this action are barred simply because they relate to the action that plaintiff agreed to settle. However, the settlement agreement does not pertain to the claims in this action, but rather, by its own terms, pertains only to claims arising out of the matters set forth in the complaint in case number 98-CV-6554.*fn3 The claims in this lawsuit were not included in that complaint, and, at best, are merely collateral to the prior case.

Defendants contend that, the pro se prisoner plaintiff "obviously knew the instant complaint was inextricably intertwined with 98-CV-6554 when he agreed to the settlement." (Defendants' Memo, p. 2). In essence, defendants' counsel contends that the settlement agreement was intended to settle both 98-CV-6554 and many of the claims in this case.

However, defendants' counsel fails to explain why the settlement agreement, which his office drafted, does not mention this action. The Court further notes that, although defendants submitted an affidavit from the attorney who represented the defendants in 98-CV-6554, it does not indicate that the settlement agreement was intended to settle any of the claims in this matter. (See, Steinman Affidavit [#56]). Accordingly, defendants' motion to dismiss the claims as settled is denied.

Defendants' Motion for Summary Judgment on the Merits

1. Plaintiff's Claims Pertaining to Mail and Legal Papers

Most of plaintiff's claims involve eleven separate incidents, between November 1997 and November 1999, in which defendants allegedly tampered with his mail and/or seized his legal papers. The third, fourth, fifth, seventh,*fn4 eighth, twenty-fifth, twenty-sixth, and twenty-eighth claims of the complaint allege that defendants tampered with his mail and legal papers in an effort to deny him access to the court, in connection with his prior lawsuit, case number 98-CV-6554. The sixth, twenty-first, twenty-third, thirtieth, and thirty-second claims allege retaliation. The first, second, and twenty-seventh claims do not expressly allege either denial of court access or retaliation, but instead, allege interference with plaintiff's right to send and receive mail, therefore, the Court will treat those claims as alleging a violation of plaintiff's First Amendment right to send and receive mail.

a. Denial of Access to the Courts

It is well settled that,

Prisoners have a First Amendment right of access to the courts, and where there is a deliberate and malicious interference with that right they may seek redress from the court. Washington v. James, 782 F.2d 1134, 1138 (2d Cir. 1986). To state a valid ยง 1983 claim for denial of access to the courts due to interference with an inmate's legal mail, an inmate must allege that a defendant's deliberate and malicious interference actually impeded his access to the court or prejudiced an existing action. Lewis v. Casey, 518 U.S. 343, 349 (1996). Therefore, in order to survive a motion to dismiss a plaintiff must allege not only that the defendant's alleged conduct was deliberate and malicious, but also that the defendant's actions resulted in actual injury to the plaintiff such as the dismissal of an otherwise meritorious legal claim.) Id. at 351. In other words "the plaintiff must show that a `non-frivolous legal claim had been ...

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