Leniart v. MurphyLeniart v. Murphy
- Reporters:
- ,
- Before:
- Sarah A. L. Merriam
The plaintiff, George M. Leniart (“plaintiff“), brings this action against the defendants1 pursuant to
Pending before the Court is defendants’ Motion for Summary Judgment. [Doc. #163].2 Plaintiff has filed a Memorandum of Law in Opposition to defendants’ motion [Doc. #174], to which
For the reasons articulated below, the defendants’ Motion for Summary Judgment [Doc. #163] is GRANTED.
I. Background
Plaintiff filed his complaint pro se on October 21, 2011. [Doc. #1].4 Counsel was appointed pro bono on March 4, 2014. [Doc. #128]. Following several amendments of his initial pleading, plaintiff now proceeds under the operative Second Supplemental Amended Complaint (the “Complaint“), which purports to be verified. [Doc. #80 at 33]. The Complaint alleges five counts, each of which implicates several of the named defendants as identified supra. The crux of plaintiff‘s Complaint is that his rights secured by the First, Fifth, Sixth, and Fourteenth Amendments were violated by the various defendants when his
II. Local Rule 56(a) Statements
Before turning to a recitation of the undisputed material facts, the Court will address the argument raised in defendants’ reply brief that the Court should deem certain facts admitted. Defendants assert that plaintiff has “chosen not to offer any evidence to controvert many facts, and instead alleges ‘neither admit or deny - not material,‘” as to the following paragraphs of defendants’ Local Rule 56(a) Statement: 34, 35, 37, 38, 39, 78, 80, 81, 83-88, 94-96, 103, 105-09, 111-14, 117-26, 133-35, 137-39, 141-43, 149-61, 164-78, 189, 192-95, 197, 199, 220-22, 225, and 227-32. [Doc. #176 at 4]. Plaintiff has not responded to this argument.
District of Connecticut Local Civil Rule (“D. Conn. L. Civ. R.“) 56(a)1 requires that every summary judgment motion be accompanied by a “Local Rule 56(a)1 Statement,” setting forth in separately numbered paragraphs “a concise statement of each material fact as to which the moving party contends there is no genuine issue to be tried.” D. Conn. L. Civ. R. 56(a)1. A party
which states in separately numbered paragraphs meeting the requirements of Local Rule 56(a)3 and corresponding to the paragraphs contained in the moving party‘s Local Rule 56(a)1 Statement whether each of the facts asserted by the moving party is admitted or denied.
D. Conn. L. Civ. R. 56(a)2. Local Rule 56(a)3 further mandates that
each denial in an opponent‘s Local Rule 56(a)2 Statement, must be followed by a specific citation to (1) the affidavit of a witness competent to testify as to the facts at trial and/or (2) evidence that would be admissible at trial[.] ... [F]ailure to provide specific citations to evidence in the record as required by this Local Rule may result in the Court deeming certain facts that are supported by the evidence admitted[.]
D. Conn. L. Civ. R. 56(a)3 (alterations added).
Courts in this District have not hesitated to deem admitted facts that are not appropriately denied at summary judgment. See Carone v. Mascolo, 573 F. Supp. 2d 575, 581 (D. Conn. 2008) (“When a party fails to appropriately deny material facts set forth in the movant‘s Rule 56(a)(1) statement, those facts are deemed admitted.” (quoting Knight v. Hartford Police Dep‘t, No. 3:04CV969(PCD), 2006 WL 1438649, at *4 (D. Conn. May 22, 2006))); see also Giglio v. Derman, 560 F. Supp. 2d 163, 166 (D. Conn. 2008) (failure of Local Rule 56(a)2 statement to cite to evidence in the record “allow[ed] the Court to deem such
Accordingly,
[w]here the Plaintiff has objected to Defendant‘s facts but has failed to support her objection with any admissible evidence in the record, where the record itself does not support Plaintiff‘s denials, or where the Plaintiff has neither admitted nor denied a fact and where the record supports such fact, those facts are deemed be admitted. Where a statement is not supported by the record, the Court either notes such or does not rely on the purported fact in its determination.
Johnson v. Conn. Dep‘t of Admin. Servs., 972 F. Supp. 2d 223, 229 (D. Conn. 2013) (collecting cases), aff‘d, 588 F. App‘x 71 (2d Cir. 2015).
Here, plaintiff‘s response to 91 out of 232 paragraphs in the defendants’ Local Rule 56(a) statement is: “NEITHER ADMIT OR DENY - NOT MATERIAL.” [Doc. #174-1, ¶¶34, 35, 37, 38, 39, 78, 80, 81, 83-88, 94-96, 103, 105-09, 111-14, 117-26, 133-35, 137-39, 141-43, 149-61, 164-78, 189, 192-95, 197, 199, 220-22, 225, and 227-32]. Because plaintiff fails to support any response to these paragraphs with a citation to the record in compliance with D. Conn. L. Civ. R. 56(a)3, the Court will deem admitted
III. Legal Standard
The standards governing summary judgment are well-settled. Summary judgment is appropriate only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
Marvel Characters, Inc. v. Simon, 310 F.3d 280, 285-86 (2d Cir. 2002). Summary judgment is proper if, after discovery, the nonmoving party “has failed to make a sufficient showing on an essential element of [his] case with respect to which [he] has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (alterations added).
“The party seeking summary judgment has the burden to demonstrate that no genuine issue of material fact exists.”5 Marvel Characters, 310 F.3d at 286. The moving party may discharge this burden by “pointing out to the district court ... that there is an absence of evidence to support the nonmoving party‘s case.” Celotex Corp., 477 U.S. at 325; see also Goenaga v. Mar. of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (“In moving for summary judgment against a party who will
In deciding a motion for summary judgment, “[t]he court must resolve all ambiguities and draw all inferences in favor of the nonmoving party[.]” Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir. 1992). “If there is any evidence in the record that could reasonably support a jury‘s verdict for the non-moving party, summary judgment must be denied.” Am. Home Assur. Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313, 315 (2d Cir. 2006) (internal quotation marks omitted) (quoting Marvel, 310 F.3d at 286). However, “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphases in original).
“In ruling on a motion for summary judgment, the district court may rely on any material that would be admissible or usable at trial.” Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008) (internal quotation marks omitted) (quoting Azrielli v. Cohen Law Offices, 21 F.3d 512, 517 (2d Cir. 1997)). Where, as here, “a summary judgment motion is supported or opposed by affidavits, those ‘affidavits shall
Therefore,
[i]n order to defeat a properly supported summary judgment motion, the opposing party must proffer admissible evidence that “set[s] forth specific facts” showing a genuinely disputed factual issue that is material under the applicable legal principles.
Fed. R. Civ. P. 56(e) ; see, e.g., Patterson v. County of Oneida, 375 F.3d 206, 219 (2d Cir. 2004)[.] A party opposing summary judgment does not show the existence of a genuine issue of fact to be tried merely by making assertions that are conclusory, see, e.g., Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996), or based on speculation, see, e.g., id. (“Though we must accept as true the allegations of the party defending against the summary judgment motion, drawing all reasonable inferences in his favor, ... conclusory statements, conjecture, or speculation by the party resisting the motion will not defeat summary judgment.“)[.]
Major League Baseball, 542 F.3d at 310 (alterations added).
IV. Facts
The Court sets forth only those facts deemed necessary to an understanding of the issues raised in, and decision rendered on, this motion for summary judgment. The following factual summary is based on plaintiff‘s Complaint [Doc. #80], defendants’ Local Rule 56(a)1 Statement of Material Facts [Doc. #163-2] and Supplemental Local Rule 56(a)1 Statement [Doc. #165-4] (collectively “Def. 56(a)1 Statement“), plaintiff‘s Local
On June 22, 2010, plaintiff was sentenced in Connecticut Superior Court, Judicial District of New London, to a term of imprisonment of life without parole for three counts of capital felony murder and one count of murder. [Def. 56(a)1 Statement, ¶2, Pl. 56(a)2 Statement, ¶2 (admitted)]. Plaintiff is currently incarcerated at Cheshire Correctional Institution, where he has been held since August 9, 2012. Id. at ¶¶1, 6. Prior to plaintiff‘s transfer to Cheshire, he was held in the MacDougall Walker Correctional Institution (“MWCI“), which is a high/maximum level facility for adult males. Id. at ¶¶4, 185. MWCI is comprised of two facilities, the Walker building and the MacDougall building. Id. at ¶186. From April 1, 2008, until August 11, 2010, plaintiff was housed in the Walker Building of MWCI, and then from August 12, 2010, until August 9, 2012, in the MacDougall building of that same facility. Id. at ¶¶4, 5.
A. 2008 Events
Defendant Antonio Villarini (“Villarini“) was working as an Admitting and Processing (“A&P“) Officer in the Walker building
The following events are denied by defendants. Plaintiff alleges that on October 20, 2008, he was brought to the A&P room for transport to a scheduled court appearance. [Doc. #80 at ¶12]. Upon arrival to the A&P room, Villarini ordered plaintiff to place his legal folder, which plaintiff contends was marked “legal/confidential“, on a steel table, to which plaintiff initially objected, but then obeyed upon receiving a direct
Plaintiff also alleges that a similar violation occurred on November 17, 2008. Unless otherwise stated, defendants deny the following events as alleged by plaintiff. Plaintiff alleges that on November 17, 2008, he was “brought on another 3am[] court trip which mirrored the last on 10-20-08.” [Doc. #80 at ¶31]. Plaintiff alleges that while awaiting transport, he watched defendant Villarini and other officers search through his manila envelope, which contained, among other items, a 26 page handwritten timeline containing “crucial information of facts explaining in detail a twelve year occurrence of events critical to [his] capitol felony arrest, and a six page outline of a posed defense strategy[.]” Id. at ¶¶32-33. Plaintiff alleges
Plaintiff alleges that following this interaction with defendant Black he was then transported to state court. [Doc. #80 at ¶44]. The Department of Correction (“DOC“) transports inmates using its Correctional Transportation Unit (“CTU“).
Defendant John Bowen has worked with the DOC since 2001 as a correctional officer. [Def. 56(a)1 Statement, ¶46, Pl. 56(a)2 Statement, ¶46 (admitted)]. In 2008, Bowen worked as a correctional officer assigned to the CTU, and would typically transport inmates in state vehicles to and from correctional facilities and the inmates’ court appearances. Id. at ¶¶47-48. At his deposition, Bowen explained that he first drops inmates
Defendants deny the following allegations. Plaintiff alleges that on November 17, 2008, upon his return to MWCI, he was the last inmate to be dropped off and was alone with defendant Bowen, when Bowen stopped the vehicle between the two buildings comprising MWCI, and stated to plaintiff that “we are all around you, that was a nice little story you wrote for your lawyer[.]” [Doc. #80 at ¶¶48-49]. Plaintiff further alleges that Bowen told plaintiff he had given a copy of plaintiff‘s handwritten documents “to a family member that was a detective at Troop E who was investigating plaintiff‘s case and if there was any more ‘tapes‘, that he wanted to trade for his paperwork, ‘because we are going to do what we have to do to keep you in here.‘” Id. at ¶¶49-50.
Attached to the Affidavit of defendant Bowen is a Correctional Transportation Unit Daily Route Schedule & Equipment Inventory for November 17, 2008. [Doc. #163-7, Bowen Aff., Ex. A]. On this date, Bowen left Corrigan at 8:04PM, with three inmates, one of whom was plaintiff. Id.; [Def. 56(a)1
B. 2012 Events
Defendant Sara8 Skribiski (“Skribiski“) has worked at the DOC in various roles since 2003. [Def. 56(a)1 Statement, ¶162, Pl. 56(a)2 Statement, ¶162 (admitted)]. Skribiski is currently employed by the DOC as a correctional counselor. Id. Skribiski‘s duties in this role include, among others: assisting inmates in making legal telephone calls; distributing legal mail; unit classification; and assuring that inmates’ requests are answered in accordance with DOC policy and procedure. Id. at ¶163.
In 2012, Skribiski was assigned to the H-1 housing unit at MWCI, and plaintiff was assigned to her caseload. Id. Plaintiff alleges that Skribiski read his outgoing privileged legal mail. [Doc. #80, at ¶105; Doc. #174-4, Leniart Aff., at ¶¶31-32]. Although not alleged in his Complaint, plaintiff also avers that
V. Discussion
A. Unopposed Claims
Because plaintiff‘s memorandum in opposition to the motion for summary judgment limited its arguments to Sixth Amendment claims against defendants Villarini, Bowen, Black and Skribiski, and a First Amendment claim against Skirbiski, the Court ordered that plaintiff file a sur-reply clarifying whether he intended to pursue only those claims. [Doc. #179]. In compliance with this order, plaintiff filed a sur-reply stating, inter alia:
The Plaintiff argues that there remain genuine issues of material fact regarding the allegations of the Second Supplemental Complaint that give rise to the Plaintiff‘s claims of violations of his rights under the First and Sixth Amendments against defendants Villarini, Bowen, Black and Skribiski.
As to the remaining defendants and claims, the plaintiff does not oppose the Defendants’ Motion for Summary Judgment to the extent of the allegations of constitutional violations presented in the Second Supplemental Complaint.
[Doc. #180 at 1-2].
Therefore, based on plaintiff‘s representations, and absent objection, the Court GRANTS summary judgment in favor of the following defendants on the following claims:
John Patz as to all claims alleged in Counts 1 and 2 of the Complaint;
John Bowen with respect to the claims based on the Fifth and Fourteenth Amendments alleged in Count 2 of the Complaint;
David Yother as to all claims alleged in Count 3 of the Complaint;
Thomas Morrarty as to all claims alleged in Count 3 of the Complaint;
Karen Martucci as to all claims alleged in Count 4 of the Complaint;
John Flemming as to all claims alleged in Count 4 of the Complaint;
Scott Salius as to all claims alleged in Count 4 of the Complaint;
Jay Lawrie as to all claims alleged in Count 5 of the Complaint;
Sara Skribiski with respect to the claims based on the Fifth and Fourteenth Amendments alleged in Count 5 of the Complaint;
Peter Murphy as to all claims alleged in Counts 1, 2 and 4 of the Complaint;
Allen Coachman as to all claims alleged in Count 4 of the Complaint.
Accordingly, the following claims remain ripe for adjudication: Count 1 alleging Sixth Amendment claims against defendant Villarini; Count 2 alleging Sixth Amendment claims against defendants Villarini, Black and Bowen; and Count 5 alleging First and Sixth Amendment claims against defendant Skribiski. The Court will address each remaining claim in turn.
B. Sixth Amendment Claims -- Villarini, Black & Bowen
Plaintiff alleges in Counts One and Two that his Sixth Amendment right to counsel was violated by defendants Villarini, Black and Bowen when they read, copied and/or shared materials he had prepared that he deems “legal” materials. Defendants argue that plaintiff has failed to state a claim for a Sixth Amendment violation, and further, that plaintiff has no right to privacy in his legal papers.
“The right of the accused ‘[i]n all criminal prosecutions ... to have the Assistance of Counsel for his defence’ is a direct right, grounded squarely in the text of the Constitution.” Benjamin v. Fraser, 264 F.3d 175, 185 (2d Cir. 2001) (quoting
Defendants contend that plaintiff‘s section 1983 claims implicating the Sixth Amendment are barred by Heck v. Humphrey, 512 U.S. 477 (1994), as plaintiff‘s claims, if proven, would necessarily undermine the validity of his criminal conviction. In Heck, the Supreme Court held:
[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court‘s issuance of a writ of habeas corpus,
28 U.S.C. § 2254 . A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.
Id. at 486-87 (footnote omitted).
Plaintiff‘s opposition to the motion for summary judgment asserts that an invasion of the attorney-client privilege equates, per se, to a violation of plaintiff‘s Sixth Amendment right to counsel. [Doc. #174 at 8-9]. He cites no authority in support of this proposition, and the Court has found none. It is true that “government interference with the confidential relationship between a defendant and his counsel may implicate Sixth Amendment rights.” Clutchette v. Rushen, 770 F.2d 1469, 1471 (9th Cir. 1985). But the plaintiff must show more than the mere breach of the privilege to raise a viable constitutional claim. “Standing alone, the attorney-client privilege is merely a rule of evidence; it has not yet been held a constitutional right.” Id. (citing Maness v. Meyers, 419 U.S. 449, 466 n.15 (1975); Beckler v. Superior Court, 568 F.2d 661, 662 (9th Cir. 1978)). Here, there is no indication in the Complaint or in any
The only allegation which approaches an assertion of interference with Sixth Amendment rights draws a connection that is tenuous, at best. Plaintiff claims that the theft of some of his handwritten materials made it difficult for him to remember items he wished to discuss with his attorney. [Doc. #174-3, Leniart Depo., 51:22-52:11; Doc. #80 at ¶27]. Although the Complaint describes the missing documents as “irreplaceable,” [Doc. #80 at ¶140], plaintiff testified that the documents were in fact his own notes based on his own thoughts, ideas and recollections, and a few newspaper clippings. [Doc. #174-3, Leniart Depo., 32:8-21, 43:18-44:1]. There is no explanation of why these materials could not be recreated if necessary. The Court has been unable to identify any case in which the seizure or inspection of a criminal defendant‘s own notes, intended to assist his discussions with counsel but not for delivery to counsel, was found to constitute a violation of the right to counsel.
This case raises none of the usual bases for a finding of interference with a pretrial detainee‘s right to counsel. There is no allegation that plaintiff was refused meetings with his
The Court therefore finds that plaintiff‘s allegations do not suffice to state a claim for violation of his Sixth Amendment right to confer with counsel.
In sum, plaintiff alleges that the defendants read, copied and shared his handwritten notes regarding legal strategy and other legal materials as part of a conspiracy with the investigating officers to influence his state criminal case. Plaintiff testified: “They were setting me up, basically.” Id. at 60:10.9 If plaintiff were to succeed in proving these claims
Plaintiff‘s counsel is correct that nominal damages can be available for violation of the Sixth Amendment right to counsel where no prejudice is shown. See Doc. #174 at 8. A nominal violation is not the allegation here, however. Here, there are allegations of significant prejudice. Here, plaintiff clearly and strongly asserts that the actions of Villarini, Black and Bowen were part of a concerted effort, in collusion with a State Police officer and others, to deny plaintiff a fair trial in state court and in fact to “set [him] up” for a murder conviction. Given that plaintiff was convicted and sentenced to a term of life imprisonment without parole, his allegations necessarily suggest that the conviction was illegally obtained.
Were the Court to find that defendants read, shared and/or confiscated plaintiff‘s legal materials as part of a conspiracy to frame him for a crime he did not commit, that finding would necessarily undermine plaintiff‘s state court criminal conviction. See, e.g., Zarro v. Spitzer, 274 F. App‘x 31, 34-35 (2d Cir. 2008) (“[A] ruling in Plaintiff‘s favor as to Counts 2 and 7 [accusing defendants of interfering with plaintiff‘s
Plaintiff relies on two cases to support his arguments in opposition to defendants’ motion as it concerns these three defendants. Plaintiff cites to Prater v. City of Philadelphia, Civ. No. 11CV1618, 2015 WL 3456659, at *5 (E.D. Pa. June 1, 2015), an unpublished District Court decision, for the proposition that “nominal damages are available even where no actual injury occurs, e.g., where interference with the right to assistance of counsel does not result in a wrongful conviction.” [Doc. #174 at 8]. Prater is inapposite. As noted, plaintiff here contends that the alleged interference with his right to counsel did result in a wrongful conviction. Further, the allegations in Prater were of actual denials of contact with counsel by way of restricting which attorneys could be placed on call lists and throwing away legal mail rather than delivering it. See Prater, 2015 WL 3456659, at *4.
Plaintiff‘s reliance on the Ninth Circuit case of Nordstrom v. Ryan, 762 F.3d 903 (9th Cir. 2014), also misses the mark. The plaintiff in Nordstrom did not seek money damages, but rather to
Given that plaintiff‘s claims necessarily imply the invalidity of his state conviction, in order to pursue this case, under Heck, he “must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court‘s issuance of a writ of habeas corpus.” Heck, 512 U.S. at 487. Defendants represent, and plaintiff does not dispute, that plaintiff in fact withdrew his habeas petition against his criminal defense attorney on the eve of his habeas trial. See
C. Sixth Amendment Claims -- Skribiski
Plaintiff‘s Complaint, which he filed pro se before the appointment of pro bono counsel, specifically alleges a Fifth Amendment violation (among others) against defendant Skribiski. [Doc. #80 at 31]. It does not allege a Sixth Amendment violation. However, in his motion for summary judgment, prepared by counsel, plaintiff alleges that Skribiski violated his First and Sixth Amendment rights, apparently abandoning any Fifth Amendment claim. Notably, counsel does not specifically articulate a basis for plaintiff‘s Sixth Amendment claim against Skribiski, but rather refers the Court to the arguments made with respect to defendants Villarini, Black and Bowen: “The same Sixth Amendment right to counsel protects the Plaintiff‘s legal correspondence, discussed above[.]” [Doc. #174 at 10]. However, neither the timing of the allegations against Skribiski, nor a
“The Sixth Amendment right to counsel applies only to ‘critical stages’ of a criminal prosecution.” Meadows v. Kuhlmann, 812 F.2d 72, 76 (2d Cir. 1987). “Unlike criminal defendants, prisoners and indigents filing civil actions have no constitutional right to counsel.” Mackey v. DiCaprio, 312 F. Supp. 2d 580, 581 (S.D.N.Y. 2004) (quoting Barzey v. Daley, No. 99CV11917(BSJ)(KNF), 2000 WL 959713, at *1 (S.D.N.Y. July 11, 2000)). There is, in other words, no Sixth Amendment right to counsel in connection with civil proceedings. See, e.g., United States v. Coven, 662 F.2d 162, 176 (2d Cir. 1981).
Plaintiff alleges that Skribiski read his privileged legal mail in June 2012, well after his conviction in state court. [Doc. #80 at ¶¶104-106]. The events forming the basis of plaintiff‘s Sixth Amendment claims against Villarini, Bowen and Black, all occurred prior to plaintiff‘s state court conviction and plaintiff claims that those defendants read, copied and disseminated his legal materials as part of a conspiracy with the investigating officers in an effort to influence his state criminal case. The plain allegations of plaintiff‘s Complaint as to Skribiski, however, do not implicate criminal proceedings against him. Rather, they specifically refer to plaintiff‘s civil lawsuits:
104. During mid month of June 2012, plaintiff sent out by U.S. mail over 300 interrogatories and request for admissions to the correctional defendants, many of whom worked at M.W.C.I. facility where plaintiff was housed.
105. The procedure in the H1-unit for inmate‘s to send out over-weight legal correspondence is to hand it to the counselor un-sealed so that it could be inspected before it is sent out, at that time that the interrogatories were sent out an argument ensued regarding counselor Skribiski, reading the privileged documents[.]
106. ... [Skribiski] threatened plaintiff that “she could fuck everything up regarding plaintiff‘s civil action against other staff members[.]”
...
147. The defendant‘s were recklessly indifferent to the plaintiff‘s rights secured and protected by the First Amendment to the United States Constitution, in one or more of the following ways:
(A) In that, defendant Skribiski ... interfered with a federal civil action[.]
[Doc. #80 at ¶¶104-106, 147 (sic) (alterations added)].
Plaintiff fails to allege any facts implicating his Sixth Amendment right to counsel in a criminal matter with respect to defendant Skribiski. Accordingly, the Court finds that plaintiff “has failed to make a sufficient showing on an essential element of [his] case with respect to which [he] has the burden of proof.” Celotex, 477 U.S. at 323 (alterations added). Therefore, the Court GRANTS defendants’ motion for summary judgment as to
C. First Amendment Claim
Plaintiff alleges that defendant Skribiski violated his First Amendment rights by interfering with and reading his legal mail. Defendants contend that there is no First Amendment violation.11
“[A] prisoner‘s right to the free flow of incoming and outgoing mail is protected by the First Amendment.” Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003) (collecting cases). “To establish a violation of this right, the prisoner must show that the interference with his mail was both regular and unjustified.” Smith v. City of New York, No. 14CV443(LTS)(KNF), 2015 WL 1433321, at *4 (S.D.N.Y. Mar. 30, 2015); see also Davis, 320 F.3d at 351 (“[A]n isolated incident of mail tampering is
Reading the allegations of the fifth count of plaintiff‘s verified Complaint, one is hard pressed to find allegations supporting a First Amendment claim on the basis of free flow of mail. Instead, amidst a backdrop of sordid allegations relating to unwanted sexual advances and retaliation, there is but one factual allegation that defendant Skribiski read, or otherwise interfered with, plaintiff‘s legal mail:
105. The procedure in the H-1 unit for inmate‘s to send out over-weight legal correspondence [here, 300 interrogatories and request for admissions in plaintiff‘s civil action] is to hand it to the counselor un-sealed so that it could be inspected before it is sent out, at that time that the interrogatories were sent out an argument ensued regarding counsel Skribiski, reading the privileged documents and also because plaintiff was denying this counselor‘s advances for intimate contact.
[Doc. #80 at ¶105 (sic) (alteration added)]. Likewise, plaintiff‘s “claims for relief” relating to the fifth count of
The only source of support for what plaintiff now asserts is a claim in Count Five that Skribiski interfered with his legal mail in violation of his First Amendment rights, is plaintiff‘s affidavit. There, plaintiff avers in a completely conclusory fashion that defendant Skribiski “read” both his outgoing and incoming legal mail “on more than ten occasions[.]” [Doc. #174-2, Leniart Aff. at ¶¶30, 31].
Turning first to plaintiff‘s assertion in his affidavit that defendant Skribiski read his incoming legal mail on more than ten occasions, such statements are entirely self-serving and not supported by any personal knowledge, or other evidence in the record. There is no claim that plaintiff witnessed Skribiski reading his incoming legal mail or that he has any first-hand knowledge that in fact occurred. Such allegations are
The only evidence on this issue comes from defendant Skribiski‘s own deposition, in which she testified that she opened and inspected plaintiff‘s incoming legal mail for contraband, but that she did not read it. [Doc. #174-5, Skribiski Depo., 13:12-14:7]. Accordingly, plaintiff‘s affidavit offering nothing more than conclusory statements that Skribiski read his incoming legal mail on more than ten occasions carries no weight. “As the Supreme Court has held, a self-serving affidavit that merely reiterates conclusory allegations in affidavit form is insufficient to preclude summary judgment, and ‘it will not do to “presume” the missing facts because without them the affidavits would not establish the injury that they generally allege.‘” United Magazine Co. v. Murdoch Magazines Distribution, Inc., 393 F. Supp. 2d 199, 211 (S.D.N.Y. 2005) (quoting Lujan v. Nat‘l Wildlife Fed‘n, 497 U.S. 871, 888-90 (1990)), aff‘d sub nom. United Magazine Co., Inc. v. Curtis Circulation Co., 279 F. App‘x 14 (2d Cir. 2008).
With respect to plaintiff‘s outgoing legal mail, Skribiski similarly testified that she inspected, as opposed to read, plaintiff‘s outgoing legal mail. [Doc. #174-5, Skribiski Depo., 14:9-22]. Specifically, Skribiski stated that she “[t]humbed through [plaintiff‘s outgoing legal mail] and made sure there
“[A] party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant‘s previous deposition testimony.” Hayes v. New York City Dep‘t of Corr., 84 F.3d 614, 619 (2d Cir. 1996) (collecting cases)).
Even if the Court credits plaintiff‘s allegation in the Complaint that defendant Skribiski read his outgoing legal mail on one occasion, that would not be sufficient to establish a First Amendment violation. See Davis, 320 F.3d at 351 (“[A]n isolated incident of mail tampering is usually insufficient to
Plaintiff emphasizes that defendant Skribiski “violated the Connecticut Regulations on outgoing legal mail when she required the Plaintiff to give her his outgoing legal mail unsealed.” [Doc. #174-2, Leniart Aff., at ¶32]. That may be true. It would not, however, mean that a constitutional violation had necessarily occurred. The Connecticut DOC maintains regulations concerning the handling of inmate legal mail providing that outgoing privileged correspondence
shall be inserted into an envelope clearly identifying a privileged correspondence addressee as enumerated in Subsection (e) of Section 18-81-28 and sealed by the inmate. Outgoing privileged correspondence shall not be opened, nor read. Each facility shall provide a special mailbox for unfranked privileged correspondence directed toward Department officials[.]
Indeed, the Second Circuit has upheld a New York Department of Correction policy, on what appears to be First and Sixth Amendment grounds, permitting precisely the type of inspection conducted by Skribiski. See Wilkinson v. Skinner, 462 F.2d 670 (2d Cir. 1972). The policy approved there provided that outgoing “special correspondence,” including legal mail, “may be examined in the presence of the prisoner to insure absence of contraband prior to mailing but shall not be read or censored.” Id. at 672 n.3. The Court concluded:
Clearly the regulation forbids examination or censorship of the content of such correspondence, even while it permits inspection for contraband, in the presence of the detainee. Such a provision adequately protects the sixth amendment right of detainees to effective assistance of counsel and precludes the official censorship or the reading that may so adversely affect the [] inmate‘s free exercise of the right to consult with counsel.
VI. Conclusion
Therefore, for the reasons stated, defendants’ Motion for Summary Judgment [Doc. #163] is GRANTED. The Clerk of the Court is directed to enter judgment in favor of the defendants.
SO ORDERED at New Haven, Connecticut, this 31st day of March 2016.
/s/
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE