West v. RiveraWest v. Rivera
- Reporters:
- ,
- Before:
- Ronnie Abrams
RONNIE ABRAMS, United States District Judge:
Pro se Plaintiff Ernest West brings this action pursuant to
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
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
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.
LEGAL STANDARD
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
DISCUSSION
I. Access to the Courts
Prison inmates’ constitutional right to access to the courts under the First and Fourteenth Amendments includes the right to send and receive legal mail. See Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003); Bounds v. Smith, 430 U.S. 817, 825 (1977). To establish an access to the courts claim, a plaintiff must show an actual injury; in other words, the plaintiff must “demonstrate that the prison hindered his efforts to pursue a non-frivolous legal or administrative action.” Guarneri v. West, 495 F. App‘x 142, 144 (2d Cir. 2011); Lewis v. Casey, 518 U.S. 343, 351 (1996). “Mere ‘delay in being able to work on one‘s legal action or communicate with the courts,“’ however, “does not rise to the level of a constitutional violation.” Davis, 320 F.3d at 352 (quoting Jermosen v. Coughlin, 877 F.Supp. 864, 871 (S.D.N.Y. 1995)). See also Cancel v. Goord, No. 00 Civ. 2042 (LMM), 2001 WL 303713, at *4 (S.D.N.Y. Mar. 29, 2001) (“[I]n order to survive a motion to dismiss a plaintiff must allege not only that the defendant‘s alleged conduct was deliberate and malicious, but also that the defendant‘s actions resulted in actual injury to the plaintiff such as the dismissal of an otherwise meritorious legal claim.“).
Defendants argue that Plaintiff has not alleged a cognizable injury in connection with his access to the courts claim. (Def. Mem. at 5-6.) The Court agrees. Although Plaintiff generally alleges that the prison‘s policy “denie[d] [his] access to the courts in a timely fashion in filing motions in ... [his] criminal defense case” (Compl. at 3), he makes no reference to particular
Nevertheless, while the Complaint does not recount any specific violations, Plaintiff‘s second opposition brief provides additional factual support for the claim. Plaintiff claims to have submitted a habeas corpus petition as “Certif[i]ed Legal Mail” on April 26, 2013 and May 2, 2014 but he did not receive a response; he asserts that he would have received a hearing if the petition had been received. (Pl. Mem 2 at 8, 10.) Because these allegations were not included in the Complaint, they may not be considered by the Court for the purposes of this motion to dismiss. See, e.g., Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007); Brown v. City of New York, No. 14 Civ. 2668 (PAE), 2014 WL 5394962, at *1 n.1 (S.D.N.Y. Oct. 23, 2014) (“[I]t is axiomatic that the Complaint cannot be amended by the briefs in opposition to a motion to dismiss.“) (citing Weir v. City of New York, No. 05 Civ. 9268 (DFE), 2008 WL 3363129, at *9 (S.D.N.Y. Aug. 11, 2008)). Read in conjunction with the facts alleged in the Complaint, however, these allegations suggest that amendment may not be futile. See Nielsen v. Rabin, 746 F.3d 58, 64 (2d Cir. 2014) (reversing district court decision to dismiss without leave to amend where facts raised in pro se plaintiff‘s opposition brief set forth factual basis for claim).
Therefore, to the extent that Plaintiff seeks to assert a claim based on his habeas corpus petition, he may amend his Complaint to include such allegations. As explained above, to state
II. Free Flow of Mail
In addition to a guarantee of access to the courts, inmates also have a general right to the “free flow of incoming and outgoing mail” under the First Amendment. Davis, 320 F.3d at 351 (citing Heimerle v. Attorney General, 753 F.2d 10, 12-13 (2d Cir. 1985); Hudson v. Greiner, No. 99 Civ. 12339 (LAP), 2000 WL 1838324, at *5 (S.D.N.Y. Dec. 13, 2000)). “Restrictions on prisoners’ mail are justified only if they ‘further[] one or more of the substantial governmental interests of security, order, and rehabilitation ... [and] must be no greater than is necessary or essential to the protection of the particular governmental interest involved.“’ Id. (quoting Washington v. James, 782 F.2d 1134, 1139 (2d Cir. 1986)); Ahlers v. Rabinowitz, 684 F.3d 53, 64 (2d Cir. 2012). In deference to this balance of interests, “courts have consistently afforded greater protection to legal mail than to non-legal mail, as well as greater protection to outgoing mail than to incoming mail.” Davis, 320 F.3d at 351 (citations omitted).
With regard to legal mail, “an isolated incident of mail tampering is usually insufficient
Plaintiff has failed to plausibly allege a free flow of mail claim based on either legal or non-legal mail. Although he generally alleges that his mail was not delivered on Mondays or during the 3:00 p.m. to 11:00 p.m. shift, Plaintiff cites no instances in which there was a failure to deliver his mail—legal or non-legal—for an unreasonable period of time. Similarly, he alleges no instances in which Defendants tampered with either his outgoing or incoming mail. In fact, Plaintiff‘s Complaint contains no references whatsoever to any specific pieces of mail. These allegations simply do not rise to the level of unlawful interference with the free flow of mail. See, e.g., Davis, 320 F.3d at 352 (affirming dismissal where plaintiff failed to allege an ongoing practice of prison officials tampering with his legal mail or any harm suffered by him as a result); Harris v. Fischer, No. 11 Civ. 6260 (CM), 2014 WL 3859242, at *25 (S.D.N.Y. Aug. 1,
Furthermore, Plaintiff fails to state a claim for relief based on the mail policy itself.6 In evaluating the reasonableness of a prison restriction, courts consider several factors: (1) whether there is “a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it,” (2) “whether there are alternative means of exercising the right that remain open to prison inmates,” (3) “the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally,” and (4) “the challenged regulation in relation to proposed alternatives.” Ahlers, 684 F.3d at 65 (citing Johnson v. Goord, 445 F.3d 532, 535 (2d Cir. 2006)).
Here, although Plaintiff alleges that his injuries resulted from the prison‘s policy, he has not provided any information about the policy that would suggest that it was unreasonable. Indeed, the Complaint contains no description of the policy at all beyond the mail delivery schedule. Plaintiff is advised that a policy that merely limits the time of mail delivery to certain days and times is unlikely to raise a constitutional concern; in any event, Plaintiff‘s bare allegations do not permit the Court to properly evaluate the policy under Ahlers. Plaintiff has thus failed to plausibly allege that the mail policy is unlawful.
As with his access to the courts claim, however, Plaintiff will be granted leave to amend his Complaint to include more specific allegations of mail interference. If Plaintiff opts to amend the Complaint, he should include not only the allegations relating to his habeas petition,
III. Personal Involvement Requirement
Because Plaintiff has failed to plausibly allege a constitutional violation, the Court need not reach Defendants’ argument that he failed to adequately allege the personal involvement of the Defendants in the alleged unconstitutional conduct. The Court reminds Plaintiff, however, that personal involvement is a requirement in all
CONCLUSION
In sum, Plaintiff has failed to plausibly allege that Defendants violated his First and Fourteenth Amendment rights to access to the courts and the free flow of mail. Defendants’ motion to dismiss is thus granted. Plaintiff will be granted an opportunity to amend his Complaint to include the factual allegations contained in his opposition brief as well as any
Accordingly, the Complaint is dismissed without prejudice to the filing of an Amended Complaint by May 5, 2015. If no Amended Complaint is filed by that date, this dismissal will become final. The Clerk of the Court is respectfully directed to close items 39 and 44 on the docket.
SO ORDERED.
Dated: March 6, 2015
New York, New York
Ronnie Abrams
United States District Judge