The opinion of the court was delivered by: Howard G. Munson, Senior District Judge
MEMORANDUM DECISION AND ORDER
This matter is composed of two civil rights actions: Konigsberg v. Lefevre and Rodney, 80-CV-609, and Konigsberg v. Kavanagh, et al, 80-CV-657. Both actions were instituted in 1980 approximately two weeks apart, but because of the facts and occurrences touched on in the pleadings and motion papers, they have become permanently affiliated. Consequently, they will be examined coincidently.
In the first case Lefevre/Moody, plaintiff alleges that he was imprisoned at the Clinton Correctional Facility, Dannemora, N.Y. ("Clinton") from 1976 until January 1979, when he was transferred to the Attica Correctional Facility, Attica, N.Y. ("Attica").
Under then Department of Correctional Services ("DOCS") Directive § 4931, a transferring inmate is allowed to take four bags of personal property with him. Any excess personal property may be (1) shipped to the inmate's relatives at the inmate's expense; (2) given to a charitable organization; (3) transferred to another inmate; (4) destroyed; or (5) forwarded to the correctional facility to which the inmate is being transferred at the inmate's expense.
At the time plaintiff was transferred to Attica, he had over 1,540 lbs of excess personal property, stored in twenty-two boxes and two duffle bags at Clinton. Plaintiff refused to accept any one of the five options set out in Directive § 4913, would not authorize a disbursement from his inmate account for the cost of shipment, and claimed that it was DOCS' obligation to have the excess property shipped to Attica at their expense. When plaintiff was transferred to Attica, Clinton placed $418 from his inmate account in escrow until the payment for the shipment of the excess property controversy was settled.
Plaintiff's family then offered to pay the shipment costs from the Correctional Facility to their residence. Plaintiff's wife was told that the shipping charge would be $140.80, but plaintiff refused to sign an authorization that would permit the property to be sent to his relatives.
Plaintiff then brought two proceedings under Article 78 of the New York Civil Practice Law and Rules in the New York State Supreme Court for Wyoming County. In March 1980, a stipulation ("the Stipulation") was entered by the parties to the two Article 78 proceedings.
Under the Stipulation's terms, DOCS agreed that; (A) plaintiff would be transferred from Attica to Eastern Correctional Facility ("Eastern"); (B) plaintiff would not be transferred from Eastern without the approval of DOCS' Director of Special Housing and DOCS' Deputy Commissioner for operations: (C) plaintiff would be transferred only if there was "a perception that [plaintiff] had become a threat to the safety and security of [Eastern]"; (D) all of plaintiff's property at Clinton would be shipped to Eastern within twenty days of his arrival at Eastern, at no cost to plaintiff; and (E) the balance of account escrowed at Clinton would be transferred to his account at Eastern.
Plaintiff was transferred to Eastern on April 11, 1980. His property that was stored at Clinton was received at Eastern 55 days later at about 8:30 am on June 6, 1980; he was escorted to Eastern' baggage storage room to inspect the 22 boxes and two duffel bags that had been received from Clinton. At that point, plaintiff declined to take possession of, or inventory the boxes or bags. He did, however, sign statements acknowledging that he had seen his property at Eastern and would not take possession of it because DOCS violated the Stipulation by not delivering his property within 20 days of his reaching Eastern. He further alleged that not all of his legal papers were delivered, some were copies, others had been removed or destroyed, and the money in his account at Clinton had not been transferred to Eastern because it had been embezzled.
Plaintiff then sent two letters dated June 6, 1980, to Defendant LeFevre accusing him of violating the Stipulation because plaintiff had not delivered his property within twenty days of his arrival at Eastern. Defendant LeFevre replied to these letters with his own letter of June 25, 1980. The letter stated that the records at Clinton show that twenty-two boxes, two duffle bags and a desk board were delivered to Eastern and that these items constituted all of plaintiff's personal property held at Clinton. It also explained that the property was originally in bags, but had been placed in boxes for transport because bags were unacceptable for shipment. The letter concluded that all of plaintiff's property had been inventoried and listed on DOCS Form 264, and plaintiff could check his property against Form 264 when he accepted receipt of it at Eastern. Plaintiff declined to do so. Plaintiff has offered no explanation as to how he determined that certain legal materials had been removed, copied or destroyed without opening the shipping containers and examining their contents.
Plaintiff was also advised that the $418 being held in escrow at Clinton had been forwarded to Eastern and placed in his inmate account there.
Plaintiff then filed the first lawsuit, Konigsberg v. Lefevre and Moody, 80-CV-609, asserting that defendants breached the order of the New York court by the late delivery of his property, delaying the transfer to Eastern of the $418 in his inmate account, and not delivering all of his excess personal property in the condition in which it had been packed at Clinton. He further maintains that defendants' delay in delivering his legal materials and their condition upon receipt thereof, unconstitutionally denied him access to the courts. The complaint seeks return of his property and monies as well as compensatory and punitive damages.
In the second lawsuit, Konigberg v. Kavanaugh et al., 80-CV-657, plaintiff asserts that the defendants entered into a conspiracy to violate his constitutional, statutory and civil rights, to harass him so that he couldn't prepare his legal papers, and to create a reign of terror in order to have plaintiff transferred from Eastern thereby preventing his access to the courts, his attorney of record, legal assistants, and his family. This complaint seeks compensatory damages and injunctive relief.
The complaint in the Konigsberg v. Leferve and Moody action was filed on July 30, 1980 and the complaint in the Konigsberg v. Kavanagh, et al. was filed on July 12, 1980. Both cases are civil rights actions that ...