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Barry D. Irvis v. Greg Seally

February 4, 2011

BARRY D. IRVIS, (GLS/ATB)
v.
GREG SEALLY, SHERIFF, GREENE COUNTY SHERIFF'S OFFICE; RICHARD HUSSY, FORMER SHERIFF, GREENE COUNTY; MICHAEL SPITZ, SUPERINTENDENT, GREENE COUNTY JAIL; KENNETH LIESE, SGT., GREENE COUNTY JAIL; EDWARD VOORHESE, SGT., GREENE COUNTY JAIL; ED WARGA, SGT. AND GRIEVANCE COORDINATOR AT GREENE COUNTY JAIL; DON RIVENBURG, FORMER SGT., GREENE COUNTY JAIL; AARON BEO JENKINS, FORMER C.O., GREENE COUNTY JAIL; HULBIKI, DR., GREENE COUNTY JAIL; DONNA JULIANO, NURSE, GREENE COUNTY JAIL; ROBERT CUTTITA, CORRECTIONAL FACILITY SPECIALIST #2; DEBORAH CLARK, CORRECTION REVIEW SPECIALIST; AND CAROL D. STEVENS, ATTORNEY, DEFENDANTS.



The opinion of the court was delivered by: Gary L. Sharpe District Court Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Pro se plaintiff Barry D. Irvis brings this action under 42 U.S.C. § 1983regarding incidents that occurred during his incarceration at Greene County Jail. (Dkt. No. 1) In a Report-Recommendation (R&R) filed September 2, 2010, Magistrate Judge Andrew T. Baxter recommended that defendants' motion to dismiss be granted and Irvis's complaint be dismissed.*fn1 (Dkt. No. 62.) Pending are Irvis's objections to the R&R. (Dkt.No. 64.) For the reasons that follow, the R&R is adopted in its entirety.

II. Standard of Review

Before entering final judgment, this court routinely reviews all report and recommendation orders in cases it has referred to a magistrate judge. If a party has objected to specific elements of the magistrate judge's findings and recommendations, this court reviews those findings and recommendations de novo. See Almonte v. N.Y. State Div. of Parole,No. 04-cv-484, 2006 WL 149049, at *6-7 (N.D.N.Y. Jan. 18, 2006). In those cases where no party has filed an objection, or only a vague or general objection has been filed, this court reviews the findings and recommendations of a magistrate judge for clear error. See id.

III. Discussion

A. Harassment

The first three of Irvis's fourteen causes of action are based on incidents of inappropriate touching by defendant Beojakian that allegedly occurred during three strip searches. (See Compl. at 4-5, Dkt. No. 1.)

In recommending the dismissal of these claims, Judge Baxter correctly observed that while "isolated episodes of harassment and touching," such as the three incidents alleged by Irvis, "are despicable and ... may potentially be the basis of state tort actions ... they do not involve a harm of federal constitutional proportions." (R&R at 10-11, Dkt. No. 62 (quoting Boddie v. Schneider, 105 F.3d 857, 861 (2d Cir. 1997)).) Other than generally objecting to this conclusion and highlighting the specific instances of alleged inappropriate touching already acknowledged and addressed in the R&R, Irvis fails to offer any sufficient basis to undermine Judge Baxter's findings or ultimate recommendation.*fn2 Accordingly, the court adopts the portion of the R&R recommending the dismissal of Irvis's first three causes of action.

Irvis's fourth cause of action is based on alleged racial slurs and threats made on August 25, 2007. Judge Baxter recommended dismissal of this claim because Irvis "did not assert, nor does the record support, any allegations of physical injury related to the verbal harassment, however inappropriate it might have been." (R&R at 11-12, Dkt. No. 62 (relying on, inter alia, Shabazz v. Pico, 994 F. Supp. 460, 474 (S.D.N.Y. 1998) ("[V]erbal harassment ... unaccompanied by any injury no matter how inappropriate, unprofessional, or reprehensible it might seem, does not constitute the violation of any federally protected right and therefore is not actionable under ... § 1983.") (citations and internal quotation marks omitted)).) Absent any apparent objection to this portion of the R&R, and discerning no error in its conclusion or the findings supporting it, the court adopts Judge Baxter's recommendation to dismiss Irvis's fourth cause of action.

B. Grievances and Investigations

Irvis's fifth, tenth, and twelfth causes of action pertain to the grievances and complaints made by Irvis in relation to the alleged harassment and defendants' alleged failure to respond or investigate them. (See Compl. at 6, 8-9, Dkt. No. 1.) In objecting to Judge Baxter's recommendation to dismiss these claims, Irvis takes issue with Judge Baxter's finding that the record "indicates that an investigation was [indeed] conducted," (R&R at 13, Dkt. No. 62), and devotes a good deal of his submission highlighting his belief that defendants failed to follow their own grievance procedures with respect to his complaints. (Objections at 20-25, Dkt. No. 64.) These objections miss the point. As Judge Baxter correctly explained, "inmates do not have a constitutional right to grievance procedures," (R&R at 12, Dkt. No. 1 (citing, inter alia, Torres v. Mazzuca, 246 F. Supp. 2d 334, 342 (S.D.N.Y. 2003)), and a "violation of the inmate grievance procedures does not give rise to a claim under [§] 1983," (id. (citing Cancel v. Goord, No. 00 CIV 2042, 2001 WL 303713, at *3 (S.D.N.Y. Mar. 29, 2001)). Thus, regardless of whether and to what extent defendants followed their grievance procedures in investigating or failing to investigate Irvis's complaints, his claims must fail as a matter of law as they are not actionable under § 1983. Accordingly, the court adopts the portion of the R&R recommending the dismissal of Irvis's fifth, tenth, and twelfth causes of action.

C. Mail Tampering and Access to Courts

Irvis's sixth, seventh, eighth, and ninth causes of action allege that his access to the courts was hindered due to the alleged inadequacy of the law library at the Greene County Jail, and because he was not permitted to contact his public defender as much as he would have liked. (See Compl. at 7-8, Dkt. No. 1.) And as to his mail tampering claim, Irvis alleges in his thirteenth cause of action that defendants "did something" to his notice of intention related to a claim he filed in the New York Court ...


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