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Robert Rivera v. Max Patnode

March 26, 2012


The opinion of the court was delivered by: Mae A. D'agostino, U. S. District Judge



In this pro se action under 42 U.S.C. § 1983, plaintiff, an inmate in the custody of the New York State Department of Correctional and Community Supervision ("DOCCS"), claims that defendants improperly denied his request for funds and therefore violated his constitutional rights to the "free flow of mail" and his access to the courts. Defendants filed a motion to dismiss plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(6). The motion was referred to United States Magistrate Judge Andrew T. Baxter for a Report-Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3( c ). Magistrate Judge Baxter converted defendants' motion to a motion for summary judgment because both the parties submitted materials outside the scope of a motion to dismiss. The parties were given notice and an opportunity to present additional submissions to the Court. On March 2, 2012, Magistrate Judge Baxter issued a Report-Recommendation (Dkt. No. 41) recommending that defendants' motion for summary judgment pursuant to Fed. R. Civ. P. 56 be granted.*fn1

Plaintiff filed specific objections to the Report-Recommendation. (Dkt. No. 49). In view of the objections and pursuant to 28 U.S.C. § 636(b)(1), this Court conducts a de novo review of these issues. The Court reviews the remaining portions of the Report-Recommendation for clear error or manifest injustice. See Brown v. Peters, 1997 WL 599355, at *2-3 (N.D.N.Y.) aff'd without op., 175 F.3d 1007 (2d Cir. 1999). After the appropriate review, "the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).

Plaintiff objects to portions of Magistrate Judge Baxter's "Facts and Contentions". However, upon a review of the record, the Court adopts Magistrate Judge Baxter's recitation of the facts. Plaintiff objects to the Report-Recommendation arguing that he was unable to provide the Court with proof to oppose the summary judgment motion because the Department of Corrections does not allow indigent inmates to photocopy (Directive #4483). Plaintiff also claims that defendants failed to provide him with his requested discovery. Plaintiff further contends that collateral estoppel does not apply to his claims because the Court of Claims lacked jurisdiction to decide constitutional claims and further, because plaintiff was not provided with a full and fair opportunity to litigate the matter. Specifically, plaintiff claims that the only intervention he sought from the Court of Claims was a Protective Order and an extension of time to serve his claim on the Attorney General. (Dkt. No. 42).


On October 15, 2009, plaintiff filed a claim in the Court of Claims against the State of New York alleging that defendant was negligent in failing to prevent an assault upon plaintiff by another inmate.*fn2 Prior to service of the claim upon defendant, on November 5, 2009, plaintiff filed a Notice of Motion, in the Court of Claims, seeking a Protective Order. On March 31, 2010, the Court issued a Decision and Order in the case of Rivera v. State of New York (Claim No. 1175333, M-77414), denying plaintiff's motion.*fn3 However, the Court held:

While the relief requested by Claimant, an order preventing the State from refusing to process the service of his claim by certified mail, return receipt requested, is not within my power to grant and must be denied, I am disturbed by Claimant's allegations. Neither party has provided the Court with sufficient information to determine whether or not Defendant's multiple refusals to process Claimant's requests were appropriate.

Accordingly, while I am constrained to deny Claimant's motion, the parties should note that I have not determined that Defendant's refusal to serve the claim certified mail, return receipt requests as requested was appropriate. That question may be ripe at some later point in time when either a motion to dismiss based upon the manner of service is made by Defendant, or a motion for permission to file a late claim is made by Claimant.

On December 14, 2010, the Court of Claims issued another Decision and Order resolving plaintiff's motion for an extension of time to file his claim and defendant's motion for dismissal of the claim.*fn4

Claimant has failed to submit adequate proof, such as a copy of the return receipt or his mailing disbursement form, to demonstrate his alleged attempts to serve the claim by certified mail, return receipt requested.

Further, in response to Claimant's assertions, Defendant has submitted the affidavit of Karen Crowley, Senior Mail and Supply Clerk at Clinton Correctional Facility. Her affidavit explains how Claimant's failure to properly fill out the necessary paperwork required that his requests for service by certified mail, return receipt requested be refused. Accordingly, I find that Claimant has failed to demonstrate that Defendant acted improperly with regard to the timely processing of Claimant's mail, and that it would be inappropriate to estop Defendant from asserting a defense relating to the service of the claim. Accordingly, the Court dismissed plaintiff's claim in its entirety. On May 11, 2011, plaintiff filed the within action and alleged that defendants violated his First and Fourteenth Amendment rights, "to the free flow of mail and access to the courts", because defendants, "knowingly and intelligently interfered with Mr. Rivera's outgoing legal mail without any reasonable penological justification by repeatedly denying properly submitted requests to serve a Claim upon the Attorney General . . . resulting in the dismissal of a properly filed State Civil action for lack of jurisdiction which can only be established when a claim is served upon the Attorney General by certified mail, return receipt".

Defendants moved for summary judgment, and after a telephone conference with the Court, limited their argument for summary judgment to the issue of collateral estoppel. Specifically, defendants argued that based upon the Court of Claims holding that plaintiff failed to demonstrate that defendants acted improperly with respect to the timely processing of his mail, plaintiff cannot demonstrate, as a matter of law, that defendants acted maliciously. Defendants further argued that because plaintiff cannot ...

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