United States District Court, W.D. New York
May 9, 2005.
LUIS A. VAZQUEZ, Plaintiff,
MICHAEL P. McGINNIS, Superintendent; CAPTAIN SULLIVAN; JANE DOE, white female Sgt.; GLENN GOORD, Commissioner; DEPUTY COMMISSIONER JOHN DOE (1) white male Sing Sing; DEPUTY COMMISSIONER JOHN DOE (2) white male Sing Sing; DEPUTY COMMISSIONER JANE DOE-white female Sing Sing; GRIEVANCE CLERK JOHN DOE white male with glasses; CASTLER, Sgt.; HANNAH, Sgt. at Southport; MRS. HAYWORD, counselor Southport; MS. MRS. HESS, Counselor; MANOR, Sgt.; McGRAIN, Sgt. at Southport; and SHEENAN, Captain; Defendants.
The opinion of the court was delivered by: CHARLES SIRAGUSA, District Judge
DECISION AND ORDER
Plaintiff Luis A. Vazquez, an inmate of the Southport
Correctional Facility, filed a pro se action seeking relief
under 42 U.S.C. § 1983 (Docket No. 1). The complaint was screened
pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(a), some of
plaintiff's claims were dismissed, and plaintiff was ordered to
amend his complaint on the remaining claim or face dismissal
(Docket No. 5). Plaintiff claims that the defendants, New York
State Department of Corrections officials and correctional
officers, violated his constitutional rights, subjecting him to
cruel and unusual punishment, illegal search and seizure and violation of due process and equal protection, when his legal
papers, legal books and money were withheld by defendants. For
the reasons discussed below, plaintiff's complaint is dismissed
pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A.
Plaintiff's claims concerning denial of his property without
due process, illegal search and seizure and conspiracy were
previously dismissed with prejudice for failure to state a claim.
Plaintiff was allowed an opportunity to amend his claim of denial
of access to the courts in order to allow the Court to determine
if plaintiff could state the necessary allegations regarding that
Plaintiff appears to have disregarded the Order of the Court,
because he has essentially restated the initial claims, including
those that were dismissed. As addressed in the Court's previous
Order, plaintiff has no claim for deprivation of property without
due process because he has an adequate remedy before the New York
State Court of Claims to address the deprivation of his legal
materials, inmate account and other property. In addition,
because a prison inmate has no legitimate expectation of privacy
in his cell, he has no claim for illegal search and seizure.
With regard to the one claim that plaintiff was allowed to
amend, plaintiff has failed to allege any further facts with
regard to his claim of denial of access to the Courts, despite
the Court's explanation that a claim of failure to provide legal
materials, without an allegation of a specific harm having
resulted, does not state a claim for denial of access to the
courts. Accordingly, because plaintiff has not made any
allegation that he has been harmed in his ability to make a claim
before a court, the claim for denial of access to the courts is
dismissed. Because no claim remains and the complaint is
dismissed in it's entirety, plaintiff's motions for a subpoena duces tecum and
change of venue are denied as moot.
For the reasons set forth above, plaintiff's sole remaining
claim of denial of access to the courts is dismissed pursuant to
28 U.S.C. § 1915(e)(2)(B). Plaintiff's motions for a subpoena
duces tecum and change of venue are denied as moot.
IT HEREBY IS ORDERED, that plaintiff's claim regarding denial
of access to the courts is dismissed;
FURTHER, that the complaint is dismissed in its entirety and
the Clerk of the Court is directed to close this case; and
FURTHER, that plaintiff's motions for a Subpoena Duces Tecum
and change of venue are denied; and
FURTHER, the Clerk of the Court is directed to correct the
docket to reflect the names and descriptions of the defendants as
indicated in the Caption of this Order.
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