The opinion of the court was delivered by: John T. Elfvin S.U.S.D.J.
Plaintiff, Elizabeth Thomas, a former inmate at the New York State Correctional Facility at Albion ("Albion"), alleges that various officials and officers with the New York State Department of Correctional Services ("DOCS") at Albion conspired*fn2 to deprive her and deprived her of her civil rights in violation of 42 U.S.C. §1983.*fn3
Thomas alleges that defendants Andrews*fn4 , Morse*fn5 , Martinez, Post, Taylor, Watson, Henriquez, Montague and Canella denied her access to the courts in violation of her First and Fourteenth Amendment rights by confiscating her legal documents on several occasions, refusing to make copies of legal documents for her and preventing her from serving legal papers. Thomas alleges that defendants Andrews, Post, Taylor, Scalise, Bailey, Watson and Galbreath took various actions against her, including confiscating her legal documents, issuing misbehavior reports falsely accusing her of wrongdoing, subjecting her to an unwritten set of rules and regulations pertaining only to her and denying her medical treatment, in retaliation for her numerous grievances and lawsuits, including the instant matter, also in violation of her First and Fourteenth Amendment rights.
She further alleges that defendant Taylor sexually harassed her - both verbally and physically - and on February 5, 1998, physically assaulted her in retaliation for her filing of grievances and this litigation.*fn6 She further alleges that Taylor's harassment and assault violated her Fourteenth Amendment due process rights and constituted cruel and unusual punishment in violation of the Eighth Amendment. Thomas seeks compensatory and punitive damages and injunctive relief as to all defendants.*fn7
Currently pending before the Court are four separate Motions for Summary Judgment filed by various groups of defendants. Bailey and Galbreath filed their Motion (#250) on May 13, 2005. Taylor filed his Motion (#253) on June 23, 2005. Scalise filed her Motion (#257) on August 15, 2005 and Andrews, Morse, Martinez, Watson, Canella, Henriquez, Montague and Post filed their Motion (#258) on October 14, 2005. Thomas filed a single memorandum in opposition to all four Motions on January 4, 2006. The defendants filed reply memoranda and the Motions were submitted on the papers and without oral argument on February 24, 2006.
Thomas was transferred to Albion from the Bedford Hills Correctional Facility on or about December 17, 1996.*fn9 From January 1997 until some time in April 1997, Thomas worked in the law library under the direction of defendant Taylor. She alleges that during her employment in the library Taylor subjected her to verbal and physical sexual harassment and that after she requested reassignment to another work location, Taylor continued to verbally harass her and retaliated against her for her complaints regarding his harassment by physically assaulting her on February 5, 1998, causing injury to her left shoulder.
During her incarceration at Albion, Thomas prosecuted a number of lawsuits pertaining to her criminal conviction, her conditions of confinement and also civil litigation unrelated to her incarceration. She alleges that numerous defendants interfered in her ability to prosecute those lawsuits by, inter alia, failing to make copies of her legal documents, refusing to assist her in serving papers and confiscating her legal documents on several occasions. She further alleges that several defendants thereafter retaliated against her for complaining about the interference by again confiscating her legal materials, issuing misbehavior reports and applying a special set of unwritten rules to her.
The specific facts will be discussed as they relate to each claim.
A motion for summary judgment will be granted when "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." FRCvP 56(c). In determining whether genuine issues of material fact exist, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (internal citation omitted). However, to defeat a motion for summary judgment, the non-movant cannot simply rely on allegations in the pleadings that merely raise "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, the non-movant must offer "concrete evidence from which a reasonable juror could return a verdict in his [or her] favor." Anderson, at 256.
"When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Residential Servs. Ltd., 22 F.3d 1219, 1223-24 (2d Cir. 1994). Upon a motion for summary judgment, the Court's role is limited to determining whether there exists a genuine issue of material fact requiring trial.
A. First Claim - Denial of Access to the Courts
Plaintiff alleges that defendants Andrews, Morse, Martinez, Post, Taylor, Watson, Henriquez, Montague and Canella all violated her First and Fourteenth Amendment right of access to the courts with respect to her criminal appeal, her Orleans County Article 78 proceeding, a Court of Claims matter, her Eastern District of New York federal habeas corpus petition, another civil action against Mary Louise Bruneau, referred to herein as "the Bruneau litigation" and with respect to the instant matter.*fn10 At her deposition and in her memorandum opposing these Motions, however, Thomas acknowledged that she either was not impeded or cannot prove that she was impeded in the prosecution of most of the above-referenced matters.
In footnote 3 on page 22 of her opposition memorandum, Thomas admits that because she was represented by counsel as to her criminal appeal, she cannot state a claim for interference in violation of her First Amendment rights with respect to the filing of her pro se supplemental brief. In that same footnote, Thomas admits that she cannot prove that the outcome of her Article 78 proceeding in Orleans County would have been different had defendants not committed the alleged interference. Thus, she cannot state a claim as to interference with that lawsuit. With respect to the unspecified Court of Claims matter, at her deposition, Thomas stated that the case had been litigated and dismissed. (Thomas March 3, 2004 Depo. at 339-340.)*fn11 Also in her deposition, Thomas stated that her federal habeas corpus petition had not been impeded. (Thomas March 3, 2004 Depo. at 344, lns. 2-8.) Accordingly, she fails to state a First Amendment claim with respect to the Court of Claims matter. With respect to the instant case, Thomas has stated to this Court, on the record, that she was satisfied with the return of her documents after they were properly redacted and Thomas has failed to assert any actual impediment to her litigation of the instant matter. (Schroeder September 8, 2000 Report & Recommendation at 4.) In fact, the Court has already found that Thomas's ability to litigate the instant matter has not been impeded. Id. at 7-8. Accordingly, the only remaining matter for the Court's consideration is Thomas's claim to have been impeded in her prosecution of the Bruneau litigation by Andrews, Morse and Martinez.
Thomas commenced a civil action against Bruneau in order to recover the expenses Thomas allegedly incurred in performing certain home renovations for Bruneau. Bruneau's name had been placed - at Bruneau's request - on Thomas's "negative correspondence" list, which placement prevented Thomas from directly corresponding with or otherwise contacting Bruneau from DOCS custody. Thomas alleges that she inquired of Andrews on several occasions as to whether a special procedure could be implemented - as had allegedly been implemented previously for her at Bedford Hills - to allow her to serve legal papers on Bruneau.*fn12 Thomas alleges that the requests were denied by Morse and Martinez despite confirmation from Bedford Hills that such procedure had been implemented for Thomas. Thomas also alleges that she was instructed to bring her legal materials to Martinez for review and that certain documents, namely her receipts of her expenses to be used to prove her case against Bruneau, were never returned to her.
Defendants Andrews, Martinez and Morse argue that Thomas cannot state a First Amendment claim for denial of access to the courts with respect to the Bruneau litigation because the First Amendment does not guarantee an inmate access to civil litigation. Thomas failed to address defendants' argument in her opposition memorandum and simply asserts that there exist genuine issues of material fact requiring trial.
Incarcerated persons have a constitutional right of access to the courts such that states are required "to give prisoners a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights." Bounds v. Smith, 430 U.S. 817, 822, 825 (1977). A claim for interference with that right is actionable under 42 U.S.C. §1983 only if the inmate can show an "actual injury" to the ability to challenge - directly or collaterally - the inmate's sentence or the conditions of confinement. See Lewis v. Casey, 518 U.S. 343, 351, 355 (1996). "Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration." Id. at 355.
Assuming Thomas's version of the facts is correct, she cannot state a claim for interference with her First Amendment right of access to the courts. The Bruneau litigation is civil in nature, and does not seek- directly or collaterally - to attack her conviction or conditions of confinement or to otherwise vindicate her constitutional rights.
Defendants' Motions for Summary Judgment are granted as to this claim and Thomas's first cause of action is dismissed in its entirety.
B. Second Claim - Retaliation
Thomas alleges that defendants Andrews, Taylor, Scalise, Bailey, Watson and Galbreath took numerous adverse actions against her in retaliation for the exercise of her civil rights including her filing of grievances and the instant litigation.*fn13 "In order to prevail on a claim of retaliation, plaintiff bears the burden of showing '(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action.'" Lashley v. Wakefield, 367 F. Supp. 2d 461, 466 (W.D.N.Y. 2005) (quoting Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003), and Gayle v. Gonyea, 313 F.3d 677 (2d Cir. 2002)). "Assuming that ...