The opinion of the court was delivered by: HUGH SCOTT, Magistrate Judge
Before the Court are the following motions: defendants' motion
for summary judgment. (Docket No. 75); and plaintiff's motion for
declaratory relief (Docket No. 82).
The plaintiff, Eric M. Gordon ("Gordon"), commenced this action
by filing a complaint against Carol Bridge ("Bridge") and Captain
Vaughn ("Vaughn") on February 6, 2002 alleging that the
defendants violated his constitutional rights and
42 U.S.C. § 1983 by tampering with his outgoing mail while he was being held
in the Erie County Holding Center ("ECHC"). (Docket No. 1).
Bridge was an Assistant District Attorney with the Erie County
District Attorney's Office. Vaughn was the Assistant
Superintendent of the ECHC.
Bridge states that in her role as Assistant Bureau Chief for
the Domestic Violence/Sexual Assaults Bureau, she was assigned to prosecute Gordon on a number
of occasions for various incidents involving a girlfriend named
Allison ("Tracey") Coleman ("Coleman"). The record reflects that
in March of 1999, Gordon was convicted of criminal contempt in
the second degree*fn1 for having violated an order of
protection relating to Coleman. The March 5, 1999 Order of
Protection required Gordon, among other things, to "refrain from
harassing, intimidating, threatening or interfering or having
contact either in person or through a third party with Allison
Coleman and members of victim's family or household, and refrain
from contact by telephone, mail or through third party with
Allison Coleman." (Docket No. 77, Exhibit B, page 18). The Order
of Protection was to stay in effect through March 5, 2002.
(Docket No. 77, Exhibit B, page 15).
On December 3, 1999, an Erie County Grand Jury issued an
indictment against Gordon charging him with fifteen counts,
alleging multiple counts of criminal contempt, assault, criminal
possession of a weapon, aggravated criminal contempt and
tampering with a witness. This indictment arose from allegations
that between May 1, 1999 and May 31, 1999, Gordon burglarized
Coleman's apartment; and on June 6, 1999, Gordon assaulted
Coleman with a knife resulting in a deep stab wound to her thigh.
Bridge was assigned to prosecute Gordon with respect to the
charges in the indictment.
At some time while the prosecution relating to the indicted
charges was pending, Bridge was contacted by Coleman or members
of Coleman's family who advised Bridge that Gordon continued to
write to Coleman from the ECHC to try to convince Coleman not to
testify against him. (Docket No. 77, Exhibit A at ¶ 8). At some
point in May of 2000, Bridge contacted a Lieutenant Webster at the ECHC and advised him that Gordon
continued to contact Coleman in violation of the Order of
Protection. Bridge stated that Webster advised that if an Order
of Protection existed, the ECHC could block calls and intercept
mail from Gordon to the individual listed in the Order. In
response to this information, Vaughn consulted the New York State
Commission of Corrections Minimum Standards, 9 N.Y.C.R.R. Part
7004.2(f) which provides that outgoing nonprivileged mail of an
inmate may be opened or read when "there is reasonable suspicion
to believe that the contents of such correspondence endanger or
threaten the safety or security of the facility or the safety,
security or health of another person." Vaughn determined that
Gordon's alleged violation of the Order of Protection provided
sufficient reasonable suspicion to inspect Gordon's mail.
On May 24, 2000, the ECHC issued a memorandum to Gordon
advising him that all of his outgoing mail would be inspected to
insure that Gordon was not in violation of the Order of
Protection. (Docket No. 77, Exhibit E). This memorandum advised
Gordon that his failure to adhere to the Order would result in
further criminal charges.
Notwithstanding the notice to Gordon that his mail would be
inspected to insure that he was not contacting Coleman in
violation of the Order of Protection, Gordon continued to write
to Coleman. These letters were confiscated and provided to Bridge
to be used in connection with the prosecution of Gordon for
violation of the Order of Protection. (Docket No. 77, Exhibit F).
After a jury trial on June 1, 2000, Gordon was ultimately
convicted of four counts of criminal contempt in the second
degree and three counts of tampering with a witness.
Gordon contends that the inspection of his mail under these
circumstances constitutes a violation of his First Amendment
rights. The defendants seek summary judgment on various grounds. The plaintiff seeks declaratory judgement finding that
the defendants' conduct violated his First Amendment rights.
Exhaustion of Administrative Remedies
The Prisoner Litigation Reform Act ("PLRA"),
42 U.S.C. § 1997e(a), provides that "[n]o action shall be brought with
respect to prison conditions under section 1983 of this title, or
any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative
remedies as are available are exhausted." It is well settled that
the PLRA's exhaustion requirement "applies to all inmate suits
about prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force or
some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002).
This requirement applies even to suits seeking relief, such as
money damages, that may not be available in prison administrative
proceedings, as long as other forms of relief are obtainable
through administrative channels. Booth v. Churner, 532 U.S. 731
It is undisputed that Gordon did not file an administrative
grievance relating to the May 2000 confiscation of his mail in
either 2000 or 2001. Gordon filed this action in 2002. Subsequent
to the commencement of this action, Gordon did file an
administrative grievance in 2003 relating to the confiscation of
his mail in 2000. That grievance was denied as untimely. Gordon
has not demonstrated that he made a timely attempt to file a
grievance regarding the claims in the complaint. Gordon testified
that he was generally familiar with the grievance process and
that he had received a copy of the inmate handbook (Docket No.
77, Exhibit M at page 17-19). However, Gordon asserts that during his criminal
trial in May and June of 2000, he attempted to bring the
constitutional claim to the Court's attention. He asserts that
the Judge presiding over his trial in New York State Supreme
Court advised him to "make the appropriate application to the
appropriate court." (Docket No. 81 at page 3). Gordon's ...