United States District Court, W.D. New York
PATRICK GUILLORY, Pro Se Clinton Correctional Facility Dannemora, New York.
ERIC T. SCHNEIDERMAN, Attorney General, State of New York KATHLEEN M. KACZOR, Assistant Attorney General, of Counsel Buffalo, New York, Attorney for Defendants.
REPORT AND RECOMMENDATION
DECISION and ORDER
LESLIE G. FOSCHIO, Magistrate Judge.
This case was referred to the undersigned by Honorable Richard J. Arcara on June 17, 2014, for all pretrial matters including preparation of a report and recommendation on dispositive motions. The matter is presently before the court on Defendants' motion (Doc. No. 12), filed May 24, 2013, seeking to dismiss the action for failure to state a claim, and Plaintiff's motion (Doc. No. 31), filed June 26, 2014, seeking leave to file an amended complaint.
BACKGROUND and FACTS
Plaintiff Patrick Guillory ("Guillory" or "Plaintiff"), proceeding pro se, commenced this civil rights action pursuant to 42 U.S.C. § 1983 ("§ 1983"), on December 3, 2012, in the Northern District of New York alleging Defendants, all employees of New York State Department of Corrections and Community Supervision ("DOCCS"), committed acts against Plaintiff in violation of the Constitution. Plaintiff named as Defendants Kathleen Washburn ("Washburn" or "Defendant"), Senior Mail Room Supervisor at Southport Correctional Facility ("Southport" or "the correctional facility"), DOCCS Deputy Commissioner Maureen Boll ("Boll"), and Bare Hill Correctional Facility ("Bare Hill") Lieutenant B. Johnston ("Johnston"). Because the claims Plaintiff asserted against Defendants Boll and Johnston arose out of Plaintiff's confinement in Bare Hill, located within the Northern District of New York, and the claims against Washburn arose out of Plaintiff's confinement in Southport, located within the Western District of New York, by order filed February 5, 2013 (Doc. No. 7), District Judge Frederick J. Scullin severed Plaintiff's claims against Washburn, and the case as against Washburn was transferred to the Western District of New York on February 7, 2013.
As relevant here, Plaintiff claims that while incarcerated at Southport, Washburn denied Plaintiff access to the court by intentionally destroying Plaintiff's legal mail. Complaint § A. In particular, Plaintiff maintains that on September 16, 2012, Plaintiff completed an "advance form" for the disbursement for postage to mail by certified mail, return receipt requested ("CMRRR"), as required under relevant New York law for filing an action with the New York Court of Claims ("Court of Claims"). Complaint ¶ 1. Plaintiff's advance form was approved on September 21, 2012, and $5.05 was deducted from Plaintiff's prison account for the CMRRR. Id. ¶ 2. In a note dated September 26, 2012, Southport Deputy Superintendent of Programs Angela Bartlett ("Bartlett"), advised Plaintiff to be patient as Plaintiff had paid for CMRRR. Id. ¶ 3. On September 27, 2012, Plaintiff filed an inmate grievance against unidentified Southport mailroom employees and Washburn for refusing to provide Plaintiff with the CMRRR number. Id. ¶ 4. A decision by Southport's Inmate Grievance Committee issued on October 2, 2012 denying Plaintiff's grievance was upheld on October 4, 2012 by Southport Superintendent Thomas Griffin who further advised that Plaintiff's legal mail had been mailed. Id. ¶ 5.
On November 19, 2012, New York State Assistant Attorney General Joan Matalavage ("Matalavage"), served an answer in Plaintiff's Court of Claims action asserted as an affirmative defense a jurisdictional defect based on Plaintiff's failure to serve the Attorney General by CMRRR, alleging Plaintiff had attempted service only by regular mail. Complaint ¶ 6. Plaintiff alleges this affirmative defense asserted by Matalavage constitutes an injury, id. ¶ 7, which Plaintiff attributes to a custom and policy maintained by Southport mailroom employees, including Washburn, to destroy any legal mail submitted by any inmate intending to sue the state. Id. ¶ 8. Plaintiff further alleges he filed an inmate grievance against Washburn regarding the alleged destruction of his legal mail which denied Plaintiff access to the courts, id. ¶ 29, and that Washburn, by destroying Plaintiff's legal mail, retaliated against Plaintiff for filing the grievance. Id. ¶ 32.
On May 24, 2013, Defendant filed the instant motion (Doc. No. 12) ("Defendant's Motion"), seeking to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim for which relief can be granted, and Defendant's Memorandum of Law in Support of the Motion to Dismiss (Doc. No. 13) ("Defendant's Memorandum"). In opposition to Defendant's Motion, Plaintiff filed on June 6, 2013 Objections to Defendant's Motion to Dismiss Filed May 24, 2013 (Doc. No. 16) ("Plaintiff's Response"), and, on June 19, 2013, the Supplemental Response to Defendant's Motion to Dismiss (Doc. No. 17) ("Plaintiff's Supplemental Response"). In further support of Defendant's Motion, Defendant filed on July 11, 2013, Defendant's Reply Memorandum of Law in Support of the Motion to Dismiss (Doc. No. 19), and the Declaration of Assistant New York State Attorney General Kathleen M. Kaczor (Doc. No. 20) ("Kaczor Declaration"). With leave of the court, Plaintiff filed on August 7, 2013, the Affidavit of Patrick Guillory in Support of Plaintiff's Reply to Defendant's Reply (Doc. No. 24) ("Plaintiff's Sur-Reply").
On June 26, 2014, Plaintiff moved for leave to file an amended complaint (Doc. No. 31) ("Plaintiff's Motion"). On July 30, 2014, Defendant filed Defendant's Memorandum of Law in Opposition to Plaintiff's Motion to Amend (Doc. No. 35) ("Defendant's Memorandum - Motion to Amend"). In further support of Plaintiff's Motion, Plaintiff filed on August 4, 2014, a proposed amended complaint. (Doc. No. 36) ("Proposed Amended Complaint"). Oral argument was deemed unnecessary.
Based on the following, Defendant's Motion seeking dismissal of the Complaint should be GRANTED; Plaintiff's Motion for ...