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
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
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).
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[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 ...