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Michael Hill 90-B-0732 v. Kathy Washburn

October 7, 2011

MICHAEL HILL 90-B-0732, PLAINTIFF,
v.
KATHY WASHBURN, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Siragusa, J.

DECISION and ORDER

INTRODUCTION

This prisoner civil rights case is before the Court on Plaintiff's motion (Doc. No. 36) for reconsideration of the Court's Decision and Order (Doc. No. 39) which granted Plaintiff's motion to amend the complaint, and granted in part Defendants' motion to dismiss. Plaintiff asks the Court to reconsider his claims under 42 U.S.C. § 1985(2) and the personal involvement of the correctional facility superintendent. For the reasons stated below, the application to reconsider is granted, and upon reconsideration, the Court adheres to its original Decision and order.

BACKGROUND

The Court's prior Decision and Order, Hill v. Washburn, No. 08-CV-6285-CJS, 2011 WL 846558 (W.D.N.Y. Feb. 7, 2011), contains a more detailed recitation of Plaintiff's allegations and will not be repeated here. The present application pertains to Plaintiff's complaints about the handling of his legal mail while at Southport Correctional Facility.

STANDARDS OF LAW

As the Fifth Circuit has recognized, "[t]he Federal Rules of Civil Procedure do not provide for a 'Motion for Reconsideration' but such motions may properly be considered either a Rule 59(e) motion to alter or amend judgment or a Rule 60(b) motion for relief from judgment." Hamilton v. Williams, 147 F.3d 367, 371 n.10 (5th Cir. 1998). "The standard for granting such a motion is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked-matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).

ANALYSIS

Section 1985(2)

In its prior Decision and Order, the Court reviewed Plaintiff's amended complaint with respect to 42 U.S.C. § 1985(3). In his motion for reconsideration, Plaintiff asks the Court to review his complaint with respect to his civil rights conspiracy claim under 42 U.S.C. § 1985(2), which reads in full as follows: (2) Obstructing justice; intimidating party, witness, or juror [b]*fn1 If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or of his being or having been such juror; [c] or if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, [d] or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws. in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators. 42 U.S.C. § 1982(2) (1874). The Supreme Court observed about § 1985, in Kush v. Rutledge, 460 U.S. 719, 724 (1983), that [a]lthough § 2 contained only one long paragraph when it was originally enacted, that single paragraph outlawed five broad classes of conspiratorial activity. In general terms, § 2 proscribed conspiracies that interfere with (a) the performance of official duties by federal officers; (b) the administration of justice in federal courts; (c) the administration of justice in state courts; (d) the private enjoyment of "equal protection of the laws" and "equal privileges and immunities under the laws"; and (e) the right to support candidates in federal elections. As now codified in § 1985, the long paragraph is divided into three subsections. One of the five classes of prohibited conspiracy is proscribed by § 1985(1), two by § 1985(2), and two by § 1985(3). The civil remedy for a violation of any of the subsections is found at the end of § 1985(3). The reclassification was not intended to change the substantive meaning of the 1871 Act..

Three of the five broad categories, the first two and the fifth, relate to institutions and processes of the federal government-federal officers, § 1985(1); federal judicial proceedings, the first portion of § 1985(2); and federal elections, the second part of § 1985(3). The statutory provisions dealing with these categories of conspiratorial activity contain no language requiring that the conspirators act with intent to deprive their victims of the equal protection of the laws.

Kush, 460 U.S. at 724 (footnote omitted).

Plaintiff's amended complaint (Doc. No. 40) contains the following allegations with regard to conspiracy: 37.) THIRD CAUSE OF ACTION; CONSPIRATORIAL ACTS IN VIOLATION OF § 1985.. Plaintiff Re-Alleges and incorporates by referencing his allegations in Paragraph (1-through-36) as if fully stated herein. 38.) Defendant VonHagn acted as a conspirator by knowing plaintiff was attempting to exhaust his remedies to bring a lawsuit against Co-Workers and did sabotage his grievances. 39.) Defendant Bartlett acted as a conspirator by joining in with Washburn to deny plaintiff free flow of Incoming & Outgoing mail and by confiscating his property to further cause him to suffer. (Am. Compl. ¶¶ 37--39.) Sabrina VonHagn is identified as a Grievance Supervisor (id. ¶ 8), Kathleen Washburn as a Senior Mail Room Clerk (id. ¶ 6) and Angela Bartlett as Deputy Superintendent of Programs (id. ¶ 7). Plaintiff claims that on or about February 6, 2007, Washburn "opened and prevented legal mail from going out to lawyer." (Am. Compl. ¶ 13.) Plaintiff filed a grievance against Washburn and Bartlett was assigned to investigate the grievance. (Id. ¶ 22.) Plaintiff alleges that "Bartlett shared the contents of plaintiff's legal mail with Washburn and the Senior Corrections Counselor and returned it to him vandalized with personnel purchase forms, and other memorandums stuck between the pages." (Id. ¶ 23.) Plaintiff further alleges that VonHagen "deliberately prevented plaintiff from exhausting the most serious grievance(s) against her fellow employees which egged on the Senior Mail Clerk and Bartlett to continue their abuse." (Id. ¶ 24.)

Plaintiff's motion to reconsider concentrates on what the Supreme Court in Kush categorized as clause "c" of ยง 1985(2): "if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws.." The "equal protection" language infers the need to allege racial or other invidious discrimination. See Kush, 460 U.S. at 725 ("Each of these portions of the statute contains language requiring that the conspirators' actions be motivated by an intent to deprive their victims of the equal protection of the laws.). Thus, if construed as argued by Plaintiff, then the amended complaint would be deficient, since it does not allege an intent to deprive Plaintiff of equal protection of the law. See Fox v. County of Yates, No. 10-CV-6020, 2010 WL 4616665, *4 n.4 (W.D.N.Y. Nov. 12, 2010) (The Honorable ...


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