UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
April 10, 2008
SHAWN GREEN 97 A 0801, PLAINTIFF,
CENTRAL OFFICE REVIEW COMMITTEE, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Siragusa, J.
Before the Court is Plaintiff's motion (Docket No. 50) pursuant to Federal Rule of Civil Procedure 60(b) for reconsideration of the Court's decision denying a temporary restraining order and preliminary injunction.
The Court has reviewed Plaintiff's application, consisting of his notice of motion, supporting affirmation and memorandum of law, dated December 17, 2007, with an attached exhibit dated October 2, 2003, pertaining to braids. Considering this information in light of the standards under Rule 60(b), the Court determines that nothing raised in the papers supports a need for reconsideration of the Court's prior determination denying Plaintiff's motion for injunctive relief. Plaintiff's application (Docket No. 50) is denied.
Rochester, New York
CHARLES J. SIRAGUSA United States District Judge
Plaintiff contends that the modified diet shown in Elizabeth Culkin's affirmation and its attached exhibit (Docket No. 46), are proof of the inadequacy of his diet as a diabetic. He offers no additional evidence to contradict Ms. Culkin's conclusion that "DOCS' Controlled B diet provides a beneficial, nutritious amount of food to compliment and support plaintiff's diabetes care management." (Culkin Aff. ¶ 6.)
Plaintiff also argues that the Court's denial of immediate injunctive relief with regard to DOCS Directive 4421, pertaining to mail handling, was in error. He compares his situation to the one in Cancel v. Goord, No. 00 Civ. 2042 (LMM), 2001 U.S. Dist. LEXIS 3440, *18-*19 (S.D.N.Y. Mar. 29, 2001). The district court in Cancel addressed the plaintiff's complaints about non-legal and legal mail, stating that:
This Court agrees with the reasoning of the Seventh Circuit in Rowe that in order for an inmate to state a claim for interference with incoming non-legal mail he must show a pattern and practice of interference that is not justified by any legitimate penological concern. Id. Because Cancel only alleges that prison officials withheld his regular mail on one occasion, rather than showing a pattern and practice of such behavior, his First Amendment free speech claim for the withholding of his regular incoming mail is dismissed with leave to amend the complaint to include specific allegations, if true, establishing such a pattern and practice..
Cancel alleges two occasions upon which the Defendants opened his incoming legal mail outside his presence. (Am. Compl. PP 22, 40.) Although legal mail is "privileged" and is afforded a higher degree of protection, there still must be a showing that prison officials regularly and unjustifiably interfered with the incoming legal mail rather than merely showing an isolated incident. Washington v. James, 782 F.2d 1134, 1139 (2d Cir. 1986). Cancel, 2001 U.S. Dist. LEXIS 3440, *18-*19. In his original motion, Plaintiff stated that the "Mailroom staff have a pattern and practice of interfering with incoming non-legal mail for reasons unrelated to legitimate penological interests. Exhibit A." (Declaration in Support of Plaintiff's Motion for a Temporary Restraining Order and Preliminary Inunction, Docket No. 38 ¶ 5.) Exhibit A is a form entitled Southport Correctional Facility Correspondence Unit, a memorandum from the mailroom staff to Plaintiff regarding contraband received in the mail. The reason written seems to be "3rd party enclosure." Another similar memorandum indicates contraband as a result of "printed copy (in excess of 5)." A third indicates the same problem of too many copies. Far from showing that the correctional facility is interfering with incoming non-legal mail, the submissions by Plaintiff show that the facility was following its procedures and listing its concerns with regard to the correspondence the mailroom staff found to be contraband.
Finally, Plaintiff contends that the Court mistakenly presumed that Dove soap was not placed in his cell property during inventory and was not allowed as part of his cell property at Southport, even though Exhibit H establishes, according to Plaintiff, that he was issued Dove soap by medical personnel. Exhibit H, however, shows that on July 3, 2006, Plaintiff was issued "HC 1%" and "Fiber tabs." It also shows that on July 5, 2006, he was "advise cool compress." Both entries appear to relate to his complaint of dry, itchy skin. Exhibit H also contains a medical entry from September 27, 2004, and under "Meds Ordered" is the entry, "Dove 7 day refill."
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