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West v. Rivera

United States District Court, S.D. New York

March 6, 2015

ERNEST WEST, Plaintiff,


RONNIE ABRAMS, District Judge.

Pro se Plaintiff Ernest West brings this action pursuant to 42 U.S.C. ยง 1983 against New York City Department of Corrections ("DOC") officers Warden Rivera, Deputy Superintendent Canty, and Captain Matthew, for alleged violations of his First and Fourteenth Amendment rights regarding the delivery and pickup of mail at his housing area in the Anna M. Kross Center ("AMKC") on Rikers Island. This is the second of two identical complaints filed one week a part in this Court by different Plaintiffs.[1] Before the Court is Defendants' motion to dismiss Plaintiff's Complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. For the reasons set forth below, the motion to dismiss is granted, although Plaintiff will be given the opportunity to amend his Complaint, if he has a proper basis for doing so.


On January 12, 2013, Plaintiff was admitted to the AMKC, where he was housed in unit West 17 on the Lower A side. (Compl. at 2.) Upon his arrival, Plaintiff learned that mail was not being delivered to the facility on Mondays and/or during the 3:00 p.m. to 11:00 p.m. shift because of a "No Pass Policy" adopted by Warden Rivera and Deputy Superintendent Canty. (Compl. at 2-3.) Plaintiff claims that the policy violated his First, Eighth, and Fourteenth Amendment rights because it unlawfully prevented him from being able to "express" himself to his family through the mail, and denied him "access to the courts in a timely fashion in filing motions in [his] behalf in [his] criminal defense case." (Id. at 3.) The policy allegedly "barred" him from "receiving family letters and sentimental items" like photos and holiday cards, and hindered his ability to "educate" his children and keep them from "being psychologically damaged mentally in their growth." As a result of these restrictions, he claims to have suffered high blood pressure, "strain on [his] heart, " sleepless nights, migraine headaches, "extreme emotional stress, " "fear for [his] life, " and anxiety on the part of his family members. (Id.) For these injuries, Plaintiff seeks $2.5 million dollars in compensatory damages, $2.5 million dollars in punitive damages, and injunctive relief. (Id. at 5.)

Plaintiff did not grieve his claims through the DOC grievance procedure because, he asserts, no such procedure was available to him. (Compl. at 4.)[3] In lieu of that procedure, he made verbal complaints to Captain Matthew and Captain Francis-Gumbs, and sought assistance from Dale Wilker at the Prisoner's Rights Project, who purportedly contacted the Board of Corrections on Plaintiff's behalf. (Id.)

On June 7, 2013 eight days after Luther Simon filed his parallel case-Plaintiff filed this action in forma pauperis. (Dkt. 1, 2.) In his Complaint, Plaintiff appears to assert First and Fourteenth Amendment claims for access to the courts and the free flow of mail based on the restrictions to mail delivery and pickup under the prison's "No Pass Policy."[4]

The Complaint named five Defendants: Warden Rivera, Deputy Superintendent Canty, Captain Matthew, C.O. Morgan, and Captain Francis-Gumbs. After Plaintiff failed to serve Defendants Morgan and Francis-Gumbs, they were dismissed by the Court's Order on July 24, 2014. (Dkt. 38.) The remaining Defendants now move to dismiss the Complaint, arguing that (1) Plaintiff's allegations regarding mail delivery do not give rise to a cognizable constitutional claim, and (2) Plaintiff has failed to allege the personal involvement of any of the Defendants in the alleged violations. (Def. Mem. of Law in Support of Motion to Dismiss ("Def. Mem.) (Dkt. 39).)

On August 26, 2014, Plaintiff filed an opposition to the motion. (Pl. Mem. of Law in Opp. 1 ("Pl. Mem. 1") (Dkt. 44).)[5] On September 26, 2014, he filed a second opposition brief (Pl. Mem. of Law in Opp. 2 ("Pl. Mem. 2") (Dkt. 45).) In this submission, Plaintiff requests permission to amend the Complaint and provides new information about his claims: specifically, he alleges that he sent a petition for habeas corpus relief to the "R.J.I. Center" in April and May of 2013 and did not receive a response. (See Pl. Mem 2 at 7-8, 10, 13.) He claims that he would have had a hearing at the R.J.I. Center if the petition had been received. (Id. at 8.) According to Plaintiff, "[C]aptain Cant[y] spoke with Mr. West, in a group meeting on [J]une[] 3rd or 4th[] of 2013, " and Canty told him that "they are aw[a]re of it." (Id. at 8.) Plaintiff also alleges that Captain Matthew was aw[are] of the "problem concerning mail or Legal Mail, " but did not wan[]t to remedy it." (Id. at 16.)

On December 31, 2014, Plaintiff submitted a letter to the Court requesting that his Complaint not be dismissed. (Dkt. 46.) Although his last two submissions were untimely and filed without leave from the Court, in light of his pro se status, the Court has liberally construed the submissions and considered the arguments presented therein.


In reviewing Defendants' motions to dismiss for failure to state a claim, the Court accepts as true all of the factual allegations in the SAC. Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011). A plaintiff has the "responsibility to set forth in the complaint facts that state a claim that is plausible on its face." Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim has "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

With pro se complaints, however, the Court has a duty to construe the complaints liberally and examine the allegations with "special solicitude, " interpreting the complaint to "raise the strongest claims that it suggests." Id. (internal quotations and alterations omitted). Accordingly, "when a liberal reading of the complaint gives any indication that a valid claim might be stated, " a pro se plaintiff will be granted at least one opportunity to amend his complaint. Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013) (citing Chavis v. Chappius, 618 F.3d 162, 170 (2d. Cir. 2010)).


I. Access to the ...

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