United States District Court, S.D. New York
June 14, 2005.
LE HONG HUNG, Plaintiff,
C.O. LINDA LYDER, ET AL. Defendants.
The opinion of the court was delivered by: GEORGE DANIELS, District Judge
MEMORANDUM DECISION AND ORDER
Pro se Plaintiff initially filed an action against
corrections officers S. Currie, Linda Lyder, and the
Superintendent of Green Haven Correctional Facility, William
Phillips, alleging violation of his constitutional rights under
the First, Eighth, and Fourteenth Amendments pursuant to
42 U.S.C. § 1983. Defendants S. Curries, Linda Lyder, and William
Phillips move to dismiss the action pursuant to Fed.R.Civ.P.
12(b)(6).*fn1 Plaintiff opposes the motion. For the
following reasons, Defendants' motion is granted.
Motions to dismiss are granted where the Amended Complaint
"fail[s] . . . to state a claim upon which relief can be
granted[.]" Fed.R.Civ.P. 12(b)(6); Conley v. Gibson,
355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Gant
v. Wallingford Bd. of Ed., 69 F.3d 669, 673 (2d Cir. 1995). In
reviewing a motion to dismiss, the district court accepts the
allegations set forth in the Amended Complaint as true and draws
all reasonable inferences in favor of the non-moving party. See
Patel v. Searles, 305 F.3d 130, 134-35 (2d Cir. 2002). However,
"bald contentions, unsupported characterizations, and legal conclusions
are not well-pleaded allegations," and are insufficient to defeat
a motion to dismiss. Citibank, N.A. v. Itochu Int'l. Inc., No.
01 Civ. 6007, 2003 WL 1797847, at *1 (S.D.N.Y. Apr. 4, 2003)
(Daniels, J.). This Court is mindful of the fact that plaintiff
is pro se and that his amended complaint must be held to less
stringent standards than those drafted by lawyers. See Haines
v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652
(1972) (per curium); Ortiz v. Cornetta, 867 F.2d 146, 148 (2d
The majority of Plaintiff's allegations are indecipherable. It
appears that he is complaining of a problem with his personal
mail since his arrival at the Green Haven Correctional Facility
("Green Haven") on or about August 22, 2002.*fn2 Plaintiff
appears to allege that some inmates*fn3 requested that the
mail clerk, Defendant corrections officer, Linda Lyder, send his
mail to them. Plaintiff contends that he wrote to the
Superintendent of Green Haven, Defendant William Phillips
("Superintendent"), and also wrote to the "Grievance Sergeant."
Plaintiff does not state what he wrote to the Superintendent or
the Grievance Sergeant. Plaintiff asserts he did not receive a
response from either the Superintendent or the Grievance Sergeant
for over a year.
After writing to Commissioner Glenn S. Goord,*fn4 two
sergeants Jan Doe and a "Hann" came to speak with him. They
asked Plaintiff whether he wanted protection. Plaintiff states
that he informed Sergeant Hann that he did not want protection,
that he did not want any problems, that he only wanted inmates to
stop writing to his family, relatives and friends. He alleges that the inmates continued to do what they wanted.
Plaintiff asserts that his personal mail was continually given to
other inmates. The inmates would change or rewrite the letters,
or mark "grievance" on his mail. The inmates even put feces in
his mail. A corrections officer, by the name of Marry, would give
Plaintiff's packages to other inmates. Further, Plaintiff seems
to allege that another corrections officer, Thorpe, was working
in the mess hall and some inmates asked Thorpe to take his
personal mail to give to them as a favor. Plaintiff appears to
allege that "civilians", in particular, Mr. Dan from the barber
shop, Mrs. Zorolnic, a teacher, and Mr. Woody, a gym worker, were
"involved" in his personal mail.
Additionally, when Plaintiff's family, relatives, and friends
visited, they were lied to and threatened. It is unclear who
Plaintiff alleges lied to or threatened his family. Plaintiff
also contends that he was stopped from seeing his family.
Pictures of his grandchildren were passed around among the
inmates. Some inmates threatened to kidnap his kids. He wrote to
his family to warn them, but an officer R. Kutz informed the
inmates. Also, Officer Kutz took his phone number, blocked it,
and gave his phone numbers to inmates to make calls threatening
harassment. Plaintiff wrote to his counselor that this was
unlawful retaliation from the prison guard.
INTERFERENCE WITH PERSONAL MAIL
To plead a claim under 42 U.S.C. § 1983, Plaintiff must allege
that (1) Defendants acted under the color of law and (2) that
Defendants deprived him of a constitutionally protected right.
See Washington v. James, 782 F.2d 1134, 1138 (2d Cir. 1986).
With the exception of corrections officer, Marry, Plaintiff
attributes no specific conduct to the remaining individual
defendants. In pleading deprivation of constitutional rights
under section 1983, Plaintiff's complaint, must allege how
"defendants were directly and personally responsible for the
purported unlawful conduct", otherwise the complaint on its face
is "fatally defective." See Rosa R. v. Connelly,
889 F.2d 435, 437 (2d Cir. 1989); Alfaro Motors, Inc. v. Ward,
814 F.2d 883, 886 (2d Cir. 1987). In his Amended Complaint, Plaintiff alleges
that inmates requested that the mail clerk/corrections officer,
Lyder, or that corrections officer Thorpe, send these unnamed
inmates his mail. However, Plaintiff does not allege that Lyder
or Thorpe actually sent his mail to these or any other inmates.
Further, Plaintiff makes no specific allegation against the
Superintendent of Green Haven, other than to state that he wrote
to the Superintendent presumably on the mail tampering claims,
and that the Superintendent did not respond for over a year. He
asserts no personal involvement by the Superintendent in the
tampering of his mail. Nor does he contend that the
Superintendent somehow had knowledge of, or acquiesced in, some
alleged unlawful conduct of his subordinates. Absent such a
showing, the Superintendent cannot be held liable under section
1983. See Gill v. Mooney, 824 F.2d 192, 196 (2d Cir. 1987);
Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986);
accord Jermosen v. Coughlin, 877 F. Supp. 864, 868-70
(S.D.N.Y. 1995). Although Plaintiff does contend that inmates
rewrote his letters, wrote "grievance" on his mail, or placed
feces in his mail, Plaintiff does not allege how these inmates
actually obtained Plaintiff's mail, or that they somehow obtained
the mail from any named defendants. Therefore, as to these
Defendants, the motion to dismiss the Amended Complaint is
With regards to Defendant Marry, Plaintiff specifically alleges
that this Defendant gave his packages to other inmates. Plaintiff
does not assert how many times this conduct occurred. "[A]n
isolated incident of mail tampering is usually insufficient to
establish a constitutional violation." Davis v. Goord,
320 F.3d 346, 351 (2d Cir. 2003). Furthermore, courts have afforded greater protection to legal and outgoing mail than to
incoming personal mail. See id. (collecting cases); see also
Davidson v. Scully, 694 F.2d 50, 53 (2d Cir. 1982) (discussing
legal mail as more of a concern because of its potential
interference with a prisoner's right of access to the courts).
Plaintiff does not allege any specific harm caused by the other
inmates receiving his packages. He does not claim that he never
received his packages. See, e.g., Stinson v. Sheriff's Dep't
Sullivan County, 499 F. Supp. 259, 264 (S.D.N.Y. 1980).
Plaintiff's allegations center on his personal, incoming
mail.*fn6 Therefore, to succeed on his claim for violation
of his constitutional rights regarding his incoming non-legal
mail, Plaintiff's Amended Complaint must demonstrate "a pattern
and practice of interference that is not justified by any
legitimate penological concern." Cancel v. Goord, No.
00Civ2042, 2001 WL 303713, at *6 (S.D.N.Y. Mar. 29, 2001) (cited
in Davis, 320 F.3d at 351). Although, Plaintiff seems to allege
that his mail is continually interfered with, he does not
specifically allege that Defendant Marry (or the other
Defendants) regularly gave his packages or mail to inmates to
suggest a pattern or practice. As such, Plaintiff does not state
a cause of action for which relief can be granted.*fn7 For the foregoing reasons, Defendants' motion to dismiss is
granted and Plaintiffs' Amended Complaint is dismissed in its
entirety. It is not necessary for the Court to address the other
arguments raised in favor of dismissal.*fn8