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Alexander v. Deming

April 15, 2009

EDWARD R.L. ALEXANDER, 99-A-4752, PLAINTIFF,
v.
CORRECTIONAL OFFICER DEMING, ET AL., DEFENDANTS.



The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge

DECISION AND ORDER

Pursuant to 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct any and all further proceedings in this case, including entry of final judgment. Dkt. #15.

Plaintiff filed this pro se action seeking relief pursuant to 42 U.S.C. § 1983. Dkt. #1. Plaintiff alleges that while an inmate at the Southport Correctional Facility ("Southport"), his rights pursuant to the First, Sixth*fn1 , Eighth and Fourteenth Amendments to the United States Constitution were violated. Id. Currently before the Court is a motion for summary judgment on plaintiff's claims by defendants Donahue, Murphy and Demming. Dkt. #44. Also before this Court is plaintiff's motion for protection from retaliation seeking transfer out of Southport. Dkt. #64. For the following reasons, defendants' motion for summary judgment is granted in part and denied in part and plaintiff's motion for protection from retaliation is denied.

BACKGROUND

Plaintiff, proceeding pro se, filed this action on February 24, 2003, against defendants Michael McGinnis*fn2 , "Correctional Officer Demming" (incorrectly spelled Deming in the complaint), "Correctional Lieutenant Donahue" and "Correctional Officer Murphy," pursuant to 42 U.S.C. § 1983, seeking $2 million in compensatory damages and to be removed from the Special Housing Unit and returned to the general population in one of the following correctional facilities, Sing Sing, Green Haven, or Eastern. Dkt. #1. Specifically, plaintiff complains that while he was housed at Southport, defendant Demming interfered with plaintiff's incoming/outgoing mail beginning in November 2002 and continuing through December 2002, in violation of his First, Sixth*fn3 and Fourteenth Amendment rights. Id. Plaintiff further alleges that defendant Demming harassed plaintiff and that on December 26, 2002, defendant Demming issued a misbehavior report in retaliation for plaintiff making complaints about him. Id. As against defendant Murphy, plaintiff alleges that he denied plaintiff his property when he was transferred to a different cell and further, that defendant Murphy destroyed plaintiff's property, including religious items in violation of plaintiff's First Amendment rights. Finally, plaintiff alleges that on January 3, 2003, defendant Donahue used excessive force. Id.

Interference with Incoming/Outgoing Mail and Denial of Access to Courts

Beginning on or about November 22, 2002 and continuing through December 2002, plaintiff claims that defendant Demming interfered with his incoming and outgoing mail. Dkt. #1. Specifically, plaintiff alleges:

1) On or about November 22nd, 2002 Officer Deming [sic] starting [sic] taking inmate Edward R.L. Alexander #99A4752 (hereafter Petitioner) incoming mail after the facilities mailroom sends it to the housing area for it to be handed out by the Correctional Officer to the Inmate in [sic] which it came.

2) Petitioner notice to [sic] he was not receiving any mail and thought that something had happened to his loveones [sic].

5) On or about December 10th, 2002 Officer Deming [sic] stood in front of the Petitioner [sic] cell and alouded [sic] told the Petitioner so that all other inmates can hear that he has been taking the Petitioner incoming mail for the pass [sic] two weeks or so.

6) To show and prove that he in fact was [sic] his [sic] started calling the Petitioner by a nickname that he is only known to [sic] by his Mother, Sisters, And wife which [sic] "Snuggles."

9) Starting that night Officer Deming [sic] stopped picking up the Petitioner's out going mail so that the Petitioner can [sic] write to anyone to let them know what he was doing ...

40) On [sic] the week of December 18th 2002 the petitioner received by legal mail a copy of a [sic] Application for an Extension of Time submitted by Stephen F. Gawlick Assistant Attorney General of Eliot Spitzer Attorney General of the State of New York.

* * * 42) The Petitioner wished to answer to [sic] the Court on the Assistant Attorney General Application ...

43) The Petitioner was denied his right to do so by Officer Deming [sic] who refused to pick up the Petitioner's out going mail.

Dkt. #1. Plaintiff's only allegation of injury with respect to his denial of access to the courts claim is that he was prohibited from responding to a motion for an extension of time filed in Alexander v. Goord, 02-CV-589. Dkt. #45, ¶ 8. The motion for an extension of time filed on December 18, 2002, was granted by United States District Judge William M. Skretny on January 2, 2003. Id. at ¶ 10; Dkt. #58, ¶¶ 7-8. Notably, there was no separate order from Judge Skretny specifically providing plaintiff with the opportunity to respond or scheduling oral argument. Id. Plaintiff claims that "[i]f the petitioner was able to mail out, out going mail he would have been able to answer the motion and the judgment might have went in his favor and not have been granted." Dkt. #1, ¶ 46.

Harassment of Plaintiff/Retaliation

Plaintiff further alleges that defendant Demming harassed him by turning out his lights and verbally harassing him. Dkt. #1, ¶ 4; Dkt. #45, ¶ 12. In support of their motion for summary judgment, defendants submit that plaintiff testified that defendant Demming never physically abused plaintiff. Dkt. #45, ¶ 12. Plaintiff claims that in furtherance of his threats to do so, defendant Demming issued a Misbehavior Report to plaintiff on December 26, 2002, in retaliation for plaintiff making complaints against defendant Demming. Specifically, the complaint alleges,

[o]n December 26, 2002 Officer Deming [sic] wrote the petitioner a Misbehavior Report that he made up against the Petitioner which he threaten the petitioner that he was going to do (the misbehavior was a Tier II). The Petitioner informed Sergant [sic] Furmen [sic] and Sergant [sic] Osborne counseler [sic] Ms. Klapp that Officer Deming [sic] threaten to write and make up Misbehavior Report on his [sic] so that the Petitioner will be removed from going up to a higher level and put on a lower level ... a week before he did it.

Dkt. #1, ¶¶ 35-36.

Excessive Use of ...


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