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Vazquez v. Greene

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


July 11, 2006

LUIS A. VAZQUEZ, PLAINTIFF,
v.
GARY GREENE, SUPERINTENDENT; M. MCALLISTER, COUNSELOR, GREAT MEADOW CORRECTIONAL FACILITY; N. VADNAIS, SENIOR COUNSELOR, GREAT MEADOW CORRECTIONAL FACILITY; CAPT. KELLY; SGT. MURRAY, DEFENDANTS.

The opinion of the court was delivered by: Thomas J. McAVOY, Senior Judge

DECISION and ORDER

By Decision and Order filed April 25, 2006, this Court ruled that the complaint filed by pro se plaintiff Luis Vazquez failed to state a claim against the named defendants upon which relief could be granted pursuant to 42 U.S.C. § 1983. Dkt. No. 6 at 2-5. In light of his pro se status, plaintiff was afforded an opportunity to file an amended complaint. Id. at 5-7.

Plaintiff's amended complaint is presently before this Court for consideration. Dkt. No. 8. Plaintiff has also filed a motion for a preliminary injunction. Dkt. No. 9.

In its prior Decision and Order, the Court determined that plaintiff's claims that his personal property was being wrongfully withheld by the defendants were not sufficient to state a claim for the violation of his federal constitutional and/or statutory rights. Dkt. No. 6 at 2-5. The Court also noted that plaintiff had failed to properly identify the individuals he sought to name as defendants in this action. Id. at 3.

Upon review of plaintiffs' amended complaint, the Court finds that plaintiff has failed to cure the deficiencies discussed by the Court in its prior Decision and Order. As in his original pleading, plaintiff alleges in his amended complaint that since his arrival at Great Meadow Correctional Facility in December, 2005, his personal belongings have been withheld and his incoming mail, particularly books and music, is not being delivered to him. Dkt. No. 8 at 1-3.*fn1 In addition, plaintiff alleges in conclusory terms that he is being extorted (Id. at 3), and that his meals have been tampered with. Dkt. No. 9 at 1.*fn2

Read in a light most favorable to plaintiff, the Court finds that the claims asserted in the amended complaint are not sufficient state a claim pursuant to 42 U.S.C. § 1983 for the violation of plaintiff's constitutional and statutory rights. As noted in the Court's prior Decision and Order, the wrongful withholding of personal property does not itself state a claim for the violation of an inmate's federal constitutional and statutory rights. Moreover, while such a deprivation may, in certain circumstances, infringe an inmate's right to access the courts (see Dkt. No. 6 at 4), plaintiff has not set forth in the amended complaint facts sufficient to state a claim that his Sixth Amendment rights have been violated.*fn3

Accordingly, this action is dismissed due to plaintiff's failure to file an amended complaint which states a claim upon which relief may be granted by this Court.

In light of the dismissal of this action, plaintiff's motion for injunctive relief is denied.

WHEREFORE, it is hereby

ORDERED, this action is dismissed, and it is further ORDERED, that plaintiff's motion for a preliminary injunction (Dkt. No. 9) is denied as moot, and it is further

ORDERED, that the Clerk serve a copy of this Order on plaintiff by regular mail.


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