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August 9, 2005.

JAMES CASSANO, 99-A-1689, Plaintiff,
WILLIAM POWERS, Deputy Superintendent, et. al., Defendants.

The opinion of the court was delivered by: CHARLES SIRAGUSA, District Judge



This is an action pursuant to 42 U.S.C. § 1983, brought by the plaintiff, a former prison inmate, proceeding pro se. Now before the Court is defendants' motion [#50] for summary judgment, pursuant to FED. R. CIV. P. 56(b), on the grounds that plaintiff has not exhausted his administrative remedies as required by 42 U.S.C. § 1997e(a). Alternatively, defendants seek summary judgment on the merits. For the reasons that follow the motion is granted.


  Plaintiff's claims are based on incidents that allegedly occurred while he was incarcerated at Orleans Correctional Facility ("Orleans").

  Plaintiff alleges that on or before September 15, 2001, while he was housed at Orleans, his rights to free speech and access to the courts were impaired by a correction officer who took legal papers that plaintiff was attempting to mail to a relative. Plaintiff was attempting to resolve a legal matter, which required that he obtain certain documents from the Criminal Investigation Unit ("CIU") in the State of New Jersey. In order to do so, CIU required that he submit a properly certified fingerprint card. In late July, or early August of 2001, plaintiff contacted defendant Karen Brown ("Brown"), the Inmate Records Coordinator at Orleans, in an attempt to obtain his fingerprints. On August 10, 2001, Brown sent plaintiff a memo in which she informed him that the New York State Department of Correctional Services ("DOCS") does not provide fingerprints for such purposes, and that CIU could request them from the New York Division of Criminal Justice Services ("DCJS"). On August 13, 2001, plaintiff sent a Freedom of Information Law ("FOIL") Request to Brown, in which he again requested that the fingerprints be provided. Brown was not the correct person to receive a FOIL request. Rather it should have been sent to defendant William Powers ("Powers"), the Deputy Superintendent at Orleans, who in fact responded to the request on August 14, 2001. Powers informed plaintiff that DOCS does not provide fingerprints for inmates or other agencies, and that application must be made directly to DCJS. Plaintiff claims that subsequent to the `denial' of his FOIL request, he appealed to the DOCS Inspector General. Plaintiff's account of this `appeal' is confusing, but he appears to be claiming that it resulted in Superintendent John Beaver providing, or being required to provide, the assistance necessary for submission of plaintiff's fingerprints to CIU. Plaintiff also claims to have contacted the FBI's FOIL Unit, from which he obtained a Freedom of Information Package, which contained, inter alia, a fingerprint card. Plaintiff apparently did write a letter to the FBI on July 26, 2001, and has submitted a letter received in response, dated July 31, 2001. The letter from the FBI informed plaintiff that he could have his fingerprints taken at the facility in which he was incarcerated. There is no evidence that plaintiff attempted to obtain a fingerprint card from DCJS.

  As discussed earlier, Brown and Powers believed that it was against DOCS' policy to assist inmates in obtaining fingerprints. DOCS subsequently clarified that corrections staff could assist inmates in obtaining their fingerprints, provided that the inmates never actually possessed the fingerprint cards. Specifically, DOCS stated that if an inmate supplied the facility with a fingerprint card and a properly addressed envelope, facility personnel could fingerprint the inmate, place the card in the envelope, and mail the envelope, thereby preventing the inmate from ever actually possessing the completed card.

  It is undisputed that plaintiff subsequently attempted to utilize this procedure to mail a completed fingerprint card to a family member. However, defendant Corrections Sergeant Makowski ("Makowski") observed that plaintiff's envelope, which was marked as "legal mail," was addressed to a family member, in violation of DOCS' legal mail policy, and opened the mail. Upon finding the completed fingerprint card, Makowski, believing it to be contraband, confiscated it. Makowski issued plaintiff a Misbehavior Report for possessing contraband, and for violating facility correspondence rules by using legal mail to send items to a family member. At a Tier III disciplinary hearing, the hearing officer found plaintiff guilty of violating the rules concerning legal mail, but not guilty of possessing contraband. Plaintiff has offered no evidence showing that he appealed the Tier III hearing decision, though he did sign the decision form which described the appeal process. Plaintiff subsequently obtained the information that he was seeking from CIU in connection with his legal proceedings in New Jersey. Despite the delay occasioned by the foregoing events, there is no indication in the record that the delay affected plaintiff's legal proceeding in New Jersey.

  On December 4, 2002, plaintiff filed a lawsuit in this Court, in which he claims he was denied access to the courts, in violation of his rights as protected by the 1st and 14th Amendments to the United States Constitution. Defendants now seek summary judgment, on the grounds that plaintiff never exhausted his administrative remedies, as required by 42 U.S.C. § 1997e(a). In support of this, defendants have submitted affidavits by Brian Fitts ("Fitts"), Inmate Grievance Program Supervisor at Orleans, and Thomas G. Eagan ("Eagan"), Director of the Inmate Grievance Program of DOCS. In his affidavit, Fitts states that he has
[F]ound no record of any grievances filed by [plaintiff] regarding the alleged refusal of [defendants Powers, Brown, or Jelonek] interfering [sic] with his rights to access to Courts in connection with providing him with copies of his finger print cards or refusing to assist him to generate finger print cards to be submitted to a New Jersey state agency.
(Fitts Decl. ¶ 8.) He further states that he has found no evidence of any appeal to the Superintendent or to the Central Office Review Committee ("CORC"). (Id. at ¶ 9.) Eagen states in his affidavit that CORC has no record of a grievance appeal regarding the above-described matter. (Eagen Decl. ¶ 3.)

  Additionally, defendants argue that plaintiff cannot prove two essential elements of his claim, namely, that the actions of the defendants were deliberate and malicious, and that his access to the courts was actually impeded. The Court notes that, in their notice of motion, defendants gave the pro se plaintiff the notice as required by Irby v. New York City Transit Auth., 262 F.3d 412, 413 (2d Cir. 2001).


  Summary Judgment

  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).

  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 do this, the non-moving party must present evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 249; see also, FED. R. CIV. P. 56(e) ("When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial."). 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 ...

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