The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge
The parties to this action consented to proceed before the undersigned on May 30, 2003. The matter is presently before the court on motions to dismiss filed by Defendants Berbary and Stoerr on September 11, 2006 (Doc. No. 45), and by Defendant Baker on July 25, 2007 (Doc. No. 66).
Plaintiff Jonathan Odom ("Plaintiff") commenced this civil rights action on October 3, 2002, pursuant to 42 U.S.C. § 1983 (" § 1983") and 42 U.S.C. § 1985 ("§ 1985"), alleging Defendants violated his rights under the First, Fifth, Eighth and Fourteenth Amendments in connection with incidents occurring at Attica Correctional Facility ("Attica") where Plaintiff was then housed. An amended complaint (Doc. No. 43) ("Amended Complaint"), was filed as of right on September 1, 2006. In particular, Plaintiff alleges that on May 4, 2000, while Plaintiff was incarcerated at Attica Correctional Facility ("Attica"), Defendants Department of Correctional Services ("DOCS") employees Sergeant Brian Baker ("Sgt. Baker"), and Corrections Officers Alan Barker ("Barker"), Kenneth Berbary ("Berbary"), and Eric Stoerr ("Stoerr") ("Defendants"), conspired to violate Plaintiff's constitutional rights by locking Plaintiff in the shower, searching his property and confiscating his legal material, including books, research papers and documents, pertaining to Plaintiff's civil rights actions pending in various district courts, as well as a habeas petition, then pending in the Southern District of New York, challenging the constitutionality of the state criminal conviction for which Plaintiff is incarcerated. Plaintiff maintains such conduct violated his rights under the First, Fifth, and Fourteenth Amendments, for which Plaintiff seeks declaratory, injunctive, and monetary relief.
On September 11, 2006, Berbary and Stoerr filed a motion to dismiss (Doc. No. 45) ("the First Motion"), supported by Stoerr and Berbary's Memorandum of Law in Support of Their Motion to Dismiss Plaintiff's Amended Complaint (Doc. No. 46) ("First Motion Memorandum") in support. On May 8, 2007, Plaintiff filed a supplemental amended complaint (Doc. No. 55), as of right ("Second Amended Complaint"), alleging that Defendants' unlawful confiscation of his legal materials rendered Plaintiff unable to "perfectly prosecute" both his pending habeas petition, as well as several other pending civil actions.*fn3 In opposition to the First Motion, Plaintiff, on May 14, 2007, filed an Affirmation (Doc. No. 57) ("Plaintiff's First Affirmation"), which was supplemented by Plaintiff's letter to the undersigned filed May 29, 2007 (Doc. No. 62) ("Plaintiff's Supplemental Letter").
On July 25, 2007, Sgt. Baker filed a motion to dismiss (Doc. No. 66) ("the Second Motion"), and the Memorandum of Law in Support of and Defendant Brian Baker's Motion to Dismiss Plaintiff's Amended Complaint (Doc. No. 67) (Second Motion Memorandum"). In opposition to the Second Motion, Plaintiff, on November 28, 2007, filed an affirmation (Doc. No. 69) ("Plaintiff's Second Affirmation"). Oral argument was deemed unnecessary.
Based on the following, the First Motion and the Second Motion are GRANTED.
Defendants seek to dismiss the Amended Complaint for failure to state a claim and, with regard to Berbary, as barred by the applicable statute of limitations.*fn4 The essence of Plaintiff's claims is Defendants' alleged arbitrary confiscating of Plaintiff's legal materials, including books, research and court papers pertaining both to civil rights actions filed by Plaintiff in unspecified federal district courts, and a habeas proceeding pending in the Southern District Court. According to Petitioner, Defendants' conduct deprived him of property in violation of his right to procedural due process under the Fifth and Fourteenth Amendments, and his First Amendment right of access to the courts.
On a motion to dismiss, the court looks to the four corners of the complaint and is required to accept the plaintiff's allegations as true and to construe those allegations in the light most favorable to the plaintiff. Scheurer v. Rhodes, 416 U.S. 232, 236 (1974); Darey v. New York County Lawyers' Association, 423 F.2d 188, 191 (2d Cir. 1969), cert. denied, 398 U.S. 929 (1970). The court is required to read the complaint with great generosity on a motion to dismiss. Yoder v. Orthomolecular Nutrition Institute, 751 F.2d 555, 558 (2d Cir. 1985). A complaint will be dismissed only if "it appears beyond doubt" that the plaintiff can prove no set of facts which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Goldman v. Belden, 754 F.2d 1059, 1065 (2d Cir. 1985). Matters of which a court may take judicial notice, including matters of public record and other orders of record in the action, may be considered on a motion to dismiss without converting the motion to one for summary judgment. Blue Trees Hotel Inv. (Canada), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004).
Defendants are alleged to have violated Plaintiff's civil rights under 42 U.S.C. § 1983, pursuant to which an individual may seek damages against any person who, under color of state law, subjects such individual to the deprivation of any rights, privileges, or immunities protected by the Constitution or laws of the United States. 42 U.S.C. § 1983. Section 1983, however, "'is not itself a source of a substantive rights,' but merely provides 'a method for vindication of federal rights elsewhere conferred.'" Albright v. Oliver, 510 U.S. 266, 271 (1994) (citing Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). Thus, "[t]he first step in any such claim is to identify the specific constitutional right allegedly infringed." Id. (citing Graham v. Connor, 490 U.S. 386, 394 (1989); and Baker, supra, at 140). Here, Plaintiff's claims that ...