Fusco v. Westchester County Department of Corrections

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

CHRISTOPHER FUSCO,

Plaintiff,

-against- 21-CV-1943 (CM)

WESTCHESTER COUNTY DEPARTMENT ORDER TO AMEND

OF CORRECTIONS,

Defendant.

COLLEEN McMAHON, Chief United States District Judge:

Plaintiff, currently detained in the custody of the Westchester County Department of

Correction (DOC), brings this pro se action under 42 U.S.C. § 1983. Plaintiff seeks to enjoin the

DOC from applying policies that limit law library hours and deny prisoners use of a computer to

draft pleadings. He further alleges that a correction officer told him that he could lose his

position as “law library trustee” if filed a second grievance about these policies.

By order dated March 17, 2021, the Court granted Plaintiff’s request to proceed without

prepayment of fees, that is, in forma pauperis.1 For the reasons set forth below, the Court grants

Plaintiff leave to file an amended complaint within thirty days of the date of this order.

STANDARD OF REVIEW

The Prison Litigation Reform Act requires that federal courts screen complaints brought

by prisoners who seek relief against a governmental entity or an officer or employee of a

governmental entity. See 28 U.S.C. § 1915A(a). The Court must dismiss a prisoner’s in forma

pauperis complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a

1 Prisoners are not exempt from paying the full filing fee, even when they have been

granted permission to proceed in forma pauperis. See 28 U.S.C. § 1915(b)(1).

claim upon which relief may be granted, or seeks monetary relief from a defendant who is

immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); see Abbas v. Dixon, 480 F.3d

636, 639 (2d Cir. 2007). The Court must also dismiss a complaint if the court lacks subject

matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).

While the law mandates dismissal on any of these grounds, the Court is obliged to

construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret

them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470

F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted, emphasis in

original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits –

to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil

Procedure, which requires a complaint to make a short and plain statement showing that the

pleader is entitled to relief.

The Supreme Court has held that under Rule 8, a complaint must include enough facts to

state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the

Court to draw the inference that the defendant is liable for the alleged misconduct. Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). In reviewing the complaint, the Court must accept all well-

pleaded factual allegations as true. Id. But it does not have to accept as true “[t]hreadbare recitals

of the elements of a cause of action,” which are essentially just legal conclusions. Id. (citing

Twombly, 550 U.S. at 555). After separating legal conclusions from well-pleaded factual

allegations, the Court must determine whether those facts make it plausible – not merely possible

– that the pleader is entitled to relief. Id. at 679.

BACKGROUND

Plaintiff Christopher Fusco states that his claims arose between January 14, 2021, and

February 25, 2021, during his detention as a pretrial detainee in the custody of the Westchester

County DOC. The DOC inmate rules and regulations indicate that the Westchester County Jail’s

library is open five days per week (1:00 p.m. to 9:00 p.m.) and that inmates may “stay in the

library as long as necessary to complete their legal work.” (ECF 2 at 39.) According to Plaintiff,

the DOC is restricting law library access to two hours daily (between 5:00 p.m. and 7:00 p.m.),

and closing the law library on weekends and holidays. (Id. at 7.) Moreover, due to “preliminary

quarantine procedures,” the law library is frequently closed at other times; for example, it was

closed February 1-2, 2021, February 6-7, 2021, February 12-15, 2021, and the weekends of

February 20-21, 2021, and February 27-28, 2021. (Id. at 8.)

Plaintiff “is litigating two state-level criminal appeals, three matters in Dutchess County

Family Court, a federal 18 U.S.C. § 2261A2 charge, [and] a 42 U.S.C. § 1983 complaint against

Andrew Cuomo.”2 (Id.) Plaintiff contends that because of law library limitations, his pro se

§ 1983 complaint against Cuomo had typographical errors and is “presumedly procedurally

ineffective.” (Id.) Plaintiff also “missed a 30 day filing window to take an appeal of an 02

December 2020 order of the Family Court . . . because [he] simply didn’t have enough time or

2 Plaintiff attaches documents showing that he faces pending criminal proceedings in the

County Court, Dutchess County, and is charged in this Court with interstate stalking, in violation

of 18 U.S.C. § 2261A, United States v. Fusco, No. 7:21-CR-0156 (CS) (S.D.N.Y.). An attorney

with the Federal Defenders of New York was appointed to represent him in the federal criminal

proceedings, though he has requested “hybrid” representation and filed pro se documents in that

action. Plaintiff has a family offense proceeding in the New York Family Court, Dutchess

County, and he attaches documents stating that an attorney has been appointed to represent him

in that proceeding. Plaintiff also filed Fusco v. Cuomo, No. 21-CV-1908 (rec’d Mar. 4, 2021

S.D.N.Y.), raising claims about his speedy trial rights in his state criminal proceedings.

information to make an informed decision on appellate action.” (Id. at 11.) 3 He was “unable to

keep up-to-date on all his other matters and bring an appeal under Covid-19 restrictions.” (Id.)

Moreover, inmates are limited to using “a mechanical typewriter with no editing

capabilities.” (Id.) Although the law library has computers that inmates are permitted to use for

research, an inmate “may not use the existing computer terminal to draft and edit a complaint.”

(Id.) Plaintiff contends that this violates his constitutional rights.

Plaintiff filed a grievance regarding law library access. He attaches to the complaint

Sergeant Losco’s February 8, 2021 response, which denied the grievance on the ground that legal

materials were provided to inmates for free upon written request during the period that the law

library was unavailable because of a suspected case of Covid-19 in Plaintiff’s housing unit. (Id.

at 37.) The grievance response also denied Plaintiff’s request to expedite his inmate worker

application, on the ground that such applications are processed on a “first come, first served

basis.” (Id. at 38.)

Six days later, on February 14, 2021, Plaintiff wrote a second grievance regarding law

library access, and he gave that grievance to Sergeant Hurley. The Inmate Jobs Coordinator,

Sergeant Hogue, told Plaintiff that he “could lose [his] job as Core I Law Library Trustee by

filing the 14 February 2021 grievance because he was ‘making waves’ & ‘causing extra work for

officers.’” (Id. at 15.) This deterred Plaintiff from continuing with the second grievance.

Plaintiff brings this suit naming the DOC as the sole Defendant. Plaintiff seeks damages,

an order enjoining DOC from restricting law library hours, and a declaration that the restricted

hours and denial of computers violates his constitutional rights. On March 25 and 26, 2021, the

3 Plaintiff attaches documents showing that he filed a pro se motion to dismiss the family

offense proceeding against him on the ground of insufficient evidence (ECF 2 at 39-41), but it is

unclear if it is the denial of that motion that he considered appealing.

Court received identical affidavits signed by non-party inmates, in which they state that this

action is about “the quality of the law library at Westchester County Jail,” and that because it is

insufficient, they are “unable to properly defend” themselves against the pending charges against

them. (ECF Nos. 9-23.) Plaintiff also filed three additional affidavits. (ECF Nos. 24-26.)

DISCUSSION

A. Westchester County Department of Correction

Plaintiff’s claims against the Westchester County DOC must be dismissed because under

New York law, county agencies or departments do not have the capacity to be sued in their own

names. See Omnipoint Commc’ns, Inc. v. Town of LaGrange, 658 F. Supp. 2d 539, 552

(S.D.N.Y. 2009) (“In New York, agencies of a municipality are not suable entities.”); Hall v.

City of White Plains, 185 F. Supp. 2d 293, 303 (S.D.N.Y. 2002) (“Under New York law,

departments which are merely administrative arms of a municipality do not have a legal identity

separate and apart from the municipality and cannot sue or be sued.”); see also N.Y. Gen. Mun.

Law § 2 (“The term ‘municipal corporation,’ as used in this chapter, includes only a county,

town, city and village.”). Instead, claims against such agencies must be brought in the name of

the County. The Court therefore considers whether Plaintiff’s allegations state a claim against the

County of Westchester.

B. Access to the Courts

Prisoners “have a constitutional right of access to the courts,” and this generally “requires

prison authorities to assist inmates in the preparation and filing of meaningful legal papers by

providing prisoners with adequate law libraries or adequate assistance from persons trained in

the law.” Bourdon v. Loughren, 386 F.3d 88, 92-93 (2d Cir. 2004) (quoting Bounds v. Smith, 420

U.S. 817, 821, 828 (1977)).4 “[P]rison law libraries and legal assistance programs are not

[constitutionally mandated] ends in themselves, but only the means for ensuring a reasonably

adequate opportunity to present claimed violations of fundamental constitutional rights to the

courts.” Lewis v. Casey, 518 U.S. 343, 351 (1996) (internal quotation marks omitted).

A claim for deprivation of access to the courts requires two allegations: (1) a valid

underlying cause of action separate from the right-of-access claim; and (2) frustration or

hindrance of the litigation caused by the defendant’s actions. See Christopher v. Harbury, 536

U.S. 403, 415 (2002) (citing Lewis, 518 U.S. at 353). “[A]n inmate cannot establish relevant

actual injury simply by establishing that his prison’s law library or legal assistance program is

subpar in some theoretical sense.” Lewis, 518 U.S. at 351. And mere “delay in being able to

work on one’s legal action or communicate with the courts does not rise to the level of a

constitutional violation.” Jermosen v. Coughlin, 877 F. Supp. 864, 871 (S.D.N.Y. 1995) (citing

Jones v. Smith, 784 F.2d 149, 151- 52 (2d Cir. 1986)).

Moreover, prison law libraries are merely “one constitutionally acceptable method to

assure meaningful access to the courts,” id., and “the provision of counsel can be a means of

accessing the courts.” Benjamin v. Fraser, 264 F.3d 175, 186 (2d Cir. 2001). “Because attorneys,

by definition, are trained and qualified in legal matters, when a prisoner with appointed counsel

claims that he was hindered by prison officials in his efforts to defend himself or pursue other

relevant legal claims, he must show that, on the facts of his case, the provision of counsel did not

4 “[T]he Supreme Court has grounded the right of access to the courts in the Privileges

and Immunities Clause of Article IV, the Petition Clause of the First Amendment, the Due

Process Clauses of the Fifth and Fourteenth Amendments, and the Equal Protection Clause of the

Fourteenth Amendment.” Bourdon, 386 F.3d at 95 (citation omitted).

furnish him with the capability of bringing his challenges before the courts.” Bourdon, 386 F.3d

at 98.

Here, Plaintiff alleges that in light of limited law library access, he was unable to

determine whether he should appeal an unspecified Family Court order. (ECF 2 at 11.) First,

Plaintiff’s vague allegations do not identify any “nonfrivolous, ‘arguable’ underlying claim,”

Harbury, 546 U.S. at 415, that he was unable to litigate in the Family Court because of restricted

library hours. Moreover, it appears from Plaintiff’s complaint that he is represented by counsel in

the Family Court proceedings, and he makes no allegation that he lacked access to his attorney.

See Bourdon, 386 F.3d at 98 (“[T]he term ‘adequate’ as used in Bounds to modify ‘assistance

from persons trained in the law,’ refers not to the effectiveness of the representation, but to the

adequacy of the prisoner’s access to his or her court-approved counsel or other law-trained

assistant.”). Because Plaintiff has not pleaded facts suggesting that he was hindered from

pursuing an arguably meritorious legal claim, and representation by counsel establishes

constitutionally acceptable access to courts, Plaintiff’s allegations are insufficient to plead a

cognizable harm to his constitutional rights.

Plaintiff’s allegations that there may be typographical errors or procedural defects in his

complaint in Fusco., No. 21-CV-1908 (S.D.N.Y.), are purely speculative and thus also fail to

show that he suffered a cognizable injury for purposes of a claim that Defendants have violated

his right of access to the courts.

Even if Plaintiff had sustained a cognizable injury, he fails to plead facts showing that the

prison policies violate prisoner’s constitutional rights. In the prison context, “when a prison

regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably

related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987); see also

Thornburgh v. Abbott, 490 U.S. 401, 414 (1989) (holding, in the context of prison policy

governing incoming mail, that “we must determine whether the governmental objective

underlying the regulations at issue is legitimate and neutral, and that the regulations are

rationally related to that objective”).5 An important factor in determining the reasonableness of a

prison restriction is whether alternative means of exercising the right remain open to prison

inmates. Id. at 90. “Where “other avenues” remain available for the exercise of the asserted right,

courts should be particularly conscious of the ‘measure of judicial deference owed to corrections

officials . . . in gauging the validity of the regulation.’” Id. (citations omitted).

Here, Plaintiff alleges that current policies, which limit law library hours and prohibit the

use of computers to draft pleadings, are arbitrary. (ECF 2 at 14.) It appears from the complaint

and attachments thereto that access to the law library was restricted due to a suspected case of

COVID-19 – a presumptively neutral and legitimate reason – and that alternative means of

obtaining legal research were available to Plaintiff without visiting the law library. Plaintiff also

makes clear that he has access to pen, paper, and some typewriter access to draft his complaints.

Plaintiff thus alleges facts showing that he has alternative means of fully vindicating his right of

access to the courts. As such, Plaintiff fails to plead facts stating a claim that the DOC’s policies

regarding law library hours and computer use violates his constitutional rights.

5 “[T]he Second Circuit regularly applies the Turner test to challenges to the conditions under

which pretrial detainees are held.” United States v. Loera, No. 09-CR-466S4 (BMC), 2017 WL

9481022, at *4 (E.D.N.Y. Sept. 27, 2017), report and recommendation adopted in part, No. 09-

CR-00466 (BMC), 2017 WL 4675773 (E.D.N.Y. Oct. 17, 2017); United States v. El-Hage, 213

F.3d 74, 81 (2d Cir. 2000) (applying Turner to pretrial detainee's challenge to conditions of

confinement).

C. Refusal to Accept Grievance

“The First Amendment protects a prisoner’s right to meaningful access to the courts and

to petition the government for the redress of grievances.” Harris v. Westchester Cnty. Dep’t of

Corr., No. 06-CV-2011 (RJS), 2008 WL 953616, at *5 (S.D.N.Y. Apr. 3, 2008). District courts

have explained that:

[I]nmate grievance procedures are not required by the Constitution and therefore a

violation of such procedures does not give rise to a claim under § 1983. When an

inmate sets forth a constitutional claim in a grievance to prison officials and the

grievance is ignored, the inmate has the right to directly petition the government

for redress of that claim. Therefore, the refusal to process an inmate’s grievance or

failure to see to it that grievances are properly processed does not create a claim

under § 1983.

Cancel v. Goord, No. 00-CV-2042 (LMM), 2001 WL 303713, at *3 (S.D.N.Y. 2001); see also

Johnson v. Barney, No. 04-CV-10204 (LBS), 2007 WL 900977, at *1 (S.D.N.Y. Mar. 22, 2007)

(“While a prisoner’s right to meaningful access to the courts is clearly protected by the First

Amendment right to petition the government, the same cannot be said for the prison grievance

system.”). Plaintiff’s allegations that a correction officer refused to accept his second grievance

therefore fails to state a claim on which relief can be granted because his remedy is a lawsuit,

such as this one, litigating the underlying claim.

LEAVE TO AMEND

Plaintiff proceeds in this matter without the benefit of an attorney. District courts

generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its

defects, unless amendment would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir.

2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Indeed, the Second Circuit has

cautioned that district courts “should not dismiss [a pro se complaint] without granting leave to

amend at least once when a liberal reading of the complaint gives any indication that a valid

claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting Gomez v.

USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). Because Plaintiff may be able to allege

additional facts to state a valid claim for the denial of his rights to access the courts, the Court

grants Plaintiff 30 days’ leave to amend his complaint to detail his claims.

Plaintiff is granted leave to amend his complaint to provide more facts about his claims.

In the “Statement of Claim” section of the amended complaint form, Plaintiff must provide a

short and plain statement of the relevant facts supporting each claim against each defendant. If

Plaintiff has an address for any named defendant, Plaintiff must provide it. Plaintiff should

include all of the information in the amended complaint that Plaintiff wants the Court to consider

in deciding whether the amended complaint states a claim for relief. That information should

include:

the names and titles of all relevant people;

a description of all relevant events, including what each defendant did or failed to do,

the approximate date and time of each event, and the general location where each

event occurred;

a description of the injuries Plaintiff suffered; and

the relief Plaintiff seeks, such as money damages, injunctive relief, or declaratory

relief.

Essentially, Plaintiff’s amended complaint should tell the Court: who violated his

federally protected rights and how; when and where such violations occurred; and why Plaintiff

is entitled to relief.

Plaintiff’s amended complaint will completely replace, not supplement, the original

complaint, and therefore any facts or claims that Plaintiff wants to include from the original

complaint must be repeated in the amended complaint.

CONCLUSION

The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on

the docket. Plaintiff is granted leave to file an amended complaint that complies with the

standards set forth above. Plaintiff must submit the amended complaint to this Court’s Pro Se

Intake Unit within thirty days of the date of this order, caption the document as an “Amended

Prisoner Civil Rights Complaint,” and label the document with docket number 21-CV-1943

(CM). An Amended Complaint form is attached to this order. No summons will issue at this

time. If Plaintiff fails to comply within the time allowed, and he cannot show good cause to

excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief

may be granted. See 28 U.S.C. § 1915(e)(2)(B) (ii).

The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would

not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an

appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

SO ORDERED.

Dated: April 1, 2021 ,

New York, New York hie. Iu Wik

Chief United States District Judge

11

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

CVE

Write the full name of each plaintiff. (Include case number if one has been

assigned)

“against- COMPLAINT

(Prisoner)

Do you want a jury trial?

ssssssss...0.0.0. L1Yes LINo

Write the full name of each defendant. If you cannot fit the

names of all of the defendants in the space provided, please

write “see attached” in the space above and attach an

additional sheet of paper with the full list of names. The

names listed above must be identical to those contained in

Section IV.

NOTICE

The public can access electronic court files. For privacy and security reasons, papers filed

with the court should therefore not contain: an individual’s full social security number or full

birth date; the full name of a person known to be a minor; or a complete financial account

number. A filing may include only: the last four digits of a social security number; the year of

an individual’s birth; a minor’s initials; and the last four digits of a financial account number.

See Federal Rule of Civil Procedure 5.2.

Rev. 5/20/16

I. LEGAL BASIS FOR CLAIM

State below the federal legal basis for your claim, if known. This form is designed primarily for

prisoners challenging the constitutionality of their conditions of confinement; those claims are

often brought under 42 U.S.C. § 1983 (against state, county, or municipal defendants) or ina

“Bivens” action (against federal defendants).

L] Violation of my federal constitutional rights

L] Other:

II. PLAINTIFF INFORMATION

Each plaintiff must provide the following information. Attach additional pages if necessary.

First Name Middle Initial Last Name

State any other names (or different forms of your name) you have ever used, including any name

you have used in previously filing a lawsuit.

Prisoner ID # (if you have previously been in another agency’s custody, please specify each agency

and the ID number (such as your DIN or NYSID) under which you were held)

Current Place of Detention

Institutional Address

County, City State Zip Code

II. PRISONER STATUS

Indicate below whether you are a prisoner or other confined person:

L] Pretrial detainee

L] Civilly committed detainee

Immigration detainee

L] Convicted and sentenced prisoner

L] Other:

IV. DEFENDANT INFORMATION

To the best of your ability, provide the following information for each defendant. If the correct

information is not provided, it could delay or prevent service of the complaint on the defendant.

Make sure that the defendants listed below are identical to those listed in the caption. Attach

additional pages as necessary.

Defendant 1:

First Name Last Name Shield #

Current Job Title (or other identifying information)

Current Work Address

County, City State Zip Code

Defendant 2:

First Name Last Name Shield #

Current Job Title (or other identifying information)

Current Work Address

County, City State Zip Code

Defendant 3:

First Name Last Name Shield #

Current Job Title (or other identifying information)

Current Work Address

County, City State Zip Code

Defendant 4:

First Name Last Name Shield #

Current Job Title (or other identifying information)

Current Work Address

County, City State Zip Code

STATEMENT OF CLAIM

Place(s) of occurrence:

Date(s) of occurrence:

FACTS:

State here briefly the FACTS that support your case. Describe what happened, how you were

harmed, and how each defendant was personally involved in the alleged wrongful actions. Attach

additional pages as necessary.

INJURIES:

If you were injured as a result of these actions, describe your injuries and what medical treatment,

if any, you required and received.

VI. RELIEF

State briefly what money damages or other relief you want the court to order.

VII. PLAINTIFF’S CERTIFICATION AND WARNINGS

By signing below, I certify to the best of my knowledge, information, and belief that: (1) the

complaint is not being presented for an improper purpose (such as to harass, cause unnecessary

delay, or needlessly increase the cost of litigation); (2) the claims are supported by existing law

or by anonfrivolous argument to change existing law; (3) the factual contentions have

evidentiary support or, if specifically so identified, will likely have evidentiary support after a

reasonable opportunity for further investigation or discovery; and (4) the complaint otherwise

complies with the requirements of Federal Rule of Civil Procedure 11.

I understand that if I file three or more cases while I am a prisoner that are dismissed as

frivolous, malicious, or for failure to state a claim, I may be denied in forma pauperis status in

future cases.

I also understand that prisoners must exhaust administrative procedures before filing an action

in federal court about prison conditions, 42 U.S.C. § 1997e(a), and that my case may be

dismissed if I have not exhausted administrative remedies as required.

I agree to provide the Clerk's Office with any changes to my address. I understand that my

failure to keep a current address on file with the Clerk's Office may result in the dismissal of my

case.

Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to

proceed without prepayment of fees, each plaintiff must also submit an IFP application.

Dated Plaintiff's Signature

First Name Middle Initial Last Name

Prison Address

Date on which | am delivering this complaint to prison authorities for mailing: