Brown v. Donahue

PS

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

SAMMY L. BROWN,

Plaintiff,

v. ORDER

J DONAHUE, TAMMY HICKEY, MS. 6:22-CV-6549-EAW

O’DELL, and D MOORE-BASHTA,

Defendants.

Pro se Plaintiff Sammy Brown (“Plaintiff”), a prisoner currently confined at the

Elmira Correctional Facility (“Elmira”), filed this action seeking relief under

42 U.S.C. § 1983. (Dkt. 2). In his complaint, Plaintiff alleges that Defendants J Donahue,

Superintendent (“Defendant Donahue”); Tammy Hickey, Inmate Grievance Resolution

Committee (“IGRC”) Chairperson (“Defendant Hickey”); and Ms. O’Dell, IGRC Supervisor

(“Defendant O’Dell”) (collectively “Defendants”) interfered with his access to the courts

and access to his legal mail. (Id.).

The Court previously granted Plaintiff permission to proceed in forma pauperis.

(Dkt. 11). The Court, noting that the complaint was unsigned, found that Plaintiff

sufficiently stated a claim for interference with legal mail and granted Plaintiff leave to

amend his claim for interference with access to the courts. (Id.).

Plaintiff timely filed a signed amended complaint and added “D Moore-Bashta”

(“Defendant Moore-Bashta”) identified as “DSP” (“Deputy Superintendent of Programs”),

as a Defendant.1 (Dkt. 12 at 3). Plaintiff also added “the Central Office of Albany” as a

Defendant in the amended complaint. (Id.). However, the Court previously denied

Plaintiff’s motion to add this Defendant (Dkt. 11 at 13), and the Central Office of Albany

will therefore be terminated from this action.

For the reasons that follow, the amended complaint will proceed to service against

the remaining Defendants.

DISCUSSION

Section 1915 “provide[s] an efficient means by which a court can screen for and

dismiss legally insufficient claims.” Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007)

(citing Shakur v. Selsky, 391 F.3d 106, 112 (2d Cir. 2004)). The court shall dismiss a

complaint in a civil action in which a prisoner seeks redress from a governmental entity,

or an officer or employee of a governmental entity, if the court determines that the action

(1) fails to state a claim upon which relief may be granted or (2) seeks monetary relief

against a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1)-(2).

I. PLAINTIFF’S AMENDED COMPLAINT

In evaluating a complaint, the court must accept all factual allegations as true and

must draw all inferences in the plaintiff’s favor. See Larkin v. Savage, 318 F.3d 138, 139

(2d Cir. 2003) (per curiam); King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999). “Specific

facts are not necessary,” and the plaintiff “need only ‘give the defendant fair notice of what

the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89,

93 (2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)); see also Boykin

v. Keycorp, 521 F.3d 202, 216 (2d Cir. 2008) (“[E]ven after Twombly, dismissal of a pro

1 The Court has updated the caption accordingly.

se claim as insufficiently pleaded is appropriate only in the most unsustainable of cases.”).

Although “a court is obliged to construe [pro se] pleadings liberally, particularly when they

allege civil rights violations,” McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004),

even pleadings submitted pro se must meet the notice requirements of Rule 8 of the

Federal Rules of Civil Procedure, Wynder v. McMahon, 360 F.3d 73, 79 n.11 (2d Cir.

2004).

The amended complaint, which largely mirrors the allegations set forth in the

original complaint, states that Edward Narrow (“Narrow”), Plaintiff’s attorney in his

underlying criminal case, sent documents to Plaintiff to assist him with challenging his

conviction. (Dkt. 12 at 5). However, prison officials denied Plaintiff access to those

documents. (Id. at 5, 6). Plaintiff attached as exhibits to the amended complaint

documents demonstrating his efforts to access these materials.2

In response to Plaintiff’s grievance seeking access to his legal documents, prison

officials instructed that they be submitted on a thumb drive or CD. (Id. at 18). On April

21, 2022, Narrow sent documents on a DVD disk and thumb drive to Elmira.3 (Id. at 34).

A U.S. Postal Service tracking document indicates that an item was picked up in Elmira

on April 25, 2022. (Id. at 35). However, on July 1, 2022, Defendant Hickey advised

Plaintiff that Elmira did not receive documents from his attorney. (Id. at 39). Defendant

2 The Court’s review of Plaintiff’s claims includes exhibits accompanying the

amended complaint, (Dkt. 12 at 13-46). See Cooper v. Dennison, No. 08-CV-6238 CJS,

2011 WL 1118685, at *1 (W.D.N.Y. Mar. 24, 2011).

3 The amended complaint and accompanying exhibits do not indicate that Narrow is

continuing to represent Plaintiff in his criminal case.

Hickey stated that “[y]our attorney may need to supply another copy of the documents for

your review.” (Id.).

On July 11, 2022, Narrow sent another thumb drive to Elmira, explaining that “[t]his

drive contains legal documents and discovery materials provided to [Plaintiff] by the

Jefferson County District Attorney’s Office, with regards to his case.” (Id. at 17).

Defendant Hickey reviewed these documents without Plaintiff’s consent and denied him

access when Defendant Hickey saw that they “contain[ed] autopsy photos.” (Id. at 26).

Defendant O’Dell’s August 15, 2022 investigation report states that Elmira is awaiting

“direction from Central Office” “due to the nature of the information contained on the CD

Rom and thumb drive.” (Id. at 19). After a hearing conducted on August 22, 2022, the

grievance committee agreed with Plaintiff that he “has a legal right to any and all

documents that the court deemed permiss[i]ble for him to possess.” (Id. at 20). The

committee further explained that “ANY denial or delay may be construed as a denial of

access to the courts.” (Id. (emphasis in original)).

However, on October 13, 2022, Defendant Donahue signed a Superintendent’s

response denying Plaintiff’s grievance. (Id. at 16). The reason for the denial was that

due to “the amount of time it would take to have someone sit with grievant and go through

[the information on the thumb drive], direction was requested through DOCCS Counsel’s

office.” (Id.). The Superintendent’s response further states that “Counsel’s office has

sent a written request to grievant’s attorney to have the information sent to the facility in

hard copy, again no response has been received.” (Id.).

In February 2023, Plaintiff wrote to this Court, stating that he was “still being denied

access to courts.” (Id. at 5). On July 26, 2023, Defendant Moore-Bashta told Plaintiff he

did not have a right to access his legal mail when he “want[s] to” and there was “no one

to sit and baby sit” him when he reviewed his legal documents. (Id.). Prison officials still

had not allowed Plaintiff to access the documents in electronic form by the time that he

filed the amended complaint, which caused him “mental stress.” (Id. at 6). Plaintiff seeks

“[a]ll interferences with legal material sent by lawyers [to] cease and desist immediately

and restitution to compensate for ongoing delay.” (Id.). On August 17, 2023, Narrow sent

Plaintiff more than nine hours of “audio and video” to review. (Dkt. 13 at 1). On

September 20 and 29, 2023, Plaintiff wrote to Defendant Moore-Bashta, “so that [Plaintiff]

could complete [his] review of [his] case file.” (Id.). Defendant Moore-Bashta denied

Plaintiff further access to the USB drive, stating that there is a DOCCS policy allowing

Plaintiff to review his “thumb drive on a one-time basis, for . . . no longer than 2 hours.”

(Id. at 2, 7).

II. SECTION 1983 CLAIMS

“To state a valid claim under 42 U.S.C. § 1983, the plaintiff must allege that the

challenged conduct (1) was attributable to a person acting under color of state law, and

(2) deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or

laws of the United States.” Whalen v. County of Fulton, 126 F.3d 400, 405 (2d Cir. 1997)

(citing Eagleston v. Guido, 41 F.3d 865, 875-76 (2d Cir. 1994)). “Section 1983 itself

creates no substantive rights; it provides only a procedure for redress for the deprivation

of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citing

City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)).

To establish liability against an official under § 1983, a plaintiff must allege that

individual’s personal involvement in the alleged constitutional violation; it is not enough to

assert that the defendant is a link in the chain of command. See McKenna v. Wright, 386

F.3d 432, 437 (2d Cir. 2004). Moreover, the theory of respondeat superior is not available

in a § 1983 action. See Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003). “[T]here

is no special rule for supervisory liability. Instead, a plaintiff must plead and prove that

each Government-official defendant, through the official’s own individual actions, has

violated the Constitution.” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020)

(internal quotation marks and citation omitted).

A. Interference with Legal Mail

As stated in the Court’s first screening order, (Dkt. 11 at 7), prisoners have a well-

settled First Amendment right to receive and send mail. See Davis v. Goord, 320 F.3d

346, 351 (2d Cir. 2003) (recognizing prisoners’ rights to “the free flow of incoming and

outgoing mail”). “[A]s few as two incidents of mail tampering could constitute an

actionable violation (1) if the incidents suggested an ongoing practice of censorship

unjustified by a substantial government interest, or (2) if the tampering unjustifiably chilled

the prisoner’s right of access to the courts or impaired the legal representation received.”

Id.

The Court previously found that Plaintiff’s allegations were sufficient to allege an

ongoing and prolonged censorship of Plaintiff’s legal mail. (Dkt. 11 at 9). For the reasons

stated in the first screening Order (id. at 8-9), Plaintiff’s First Amendment interference with

mail claim will proceed to service against all Defendants.

B. Access to Courts

The Court previously dismissed Plaintiff’s access to courts claim, finding that he

failed to allege actual injury, which requires a showing that he was hindered in efforts to

pursue a legal claim. (Dkt. 11 at 11-12). As stated in the first screening order, (id. at 9-

11), the Constitution affords prisoners the right to access the courts. See Lewis v. Casey,

518 U.S. 343, 350 (1996)). In order to adequately state a denial of access to courts claim,

Plaintiff must assert that he has suffered, or will suffer, “actual harm,” id. at 349, to

“plaintiff’s efforts to pursue a nonfrivolous claim,” Bellezza v. Holland, 730 F. Supp. 2d

311, 315 (S.D.N.Y. 2010) (quoting Collins v. Goord, 581 F. Supp. 2d 563, 573 (S.D.N.Y.

2008)).

In his original complaint, Plaintiff alleged that the failure to provide access to the

criminal court documents mailed by his attorney delayed his filing of a motion authorized

by § 440.10 of the New York Criminal Procedure Law. (Dkt. 2 at 4). However, the Court

found that because Plaintiff may raise his § 440.10 motion “at any time,” the delay in filing

his motion does not constitute the kind of injury or prejudice that establishes the denial of

access to courts. (Dkt. 11 at 11 (collecting cases)).

Liberally construed, the amended complaint asserts that denying Plaintiff access

to his legal mail also hindered his ability to seek federal habeas corpus relief. (Dkt. 12 at

6). Unlike a § 440.10 motion, the time available to seek federal habeas corpus relief is

limited. 28 U.S.C. § 2244(d)(1) establishes a one-year statute of limitations for federal

habeas corpus proceedings. That provision permits tolling of the limitations period while

a criminal defendant seeks collateral review, stating that “[t]he time during which a

properly filed application for State post-conviction or other collateral review with respect

to the pertinent judgment or claim is pending shall not be counted toward any period of

limitation under this subsection.” 28 U.S.C. § 2244(d)(2).

Plaintiff alleges that his inability to access his legal documents delayed the filing of

motions and petitions in state court. He asserts that because he was unable to seek

collateral review of his conviction, the tolling provision set forth in § 2244(d)(2) does not

apply and his habeas corpus petition is now untimely. “[A]ccess to this habeas review in

particular is a fundamental aspect of the right of access to the courts.” Gray v.

Commissioner of Correction, No. 3:10CV1998 (JBA), 2014 WL 1316112, at *6 (D. Conn.

Mar. 31, 2014) (denying defendant’s motion for summary judgment on prisoner’s access

to courts claim based on denial of assistance with plaintiff’s preparation of § 2254

petition), corrected on other grounds, 2014 WL 2178246 (D. Conn. May 23, 2014). For

initial review purposes only, Plaintiff’s allegations regarding the impact of his inability to

access his legal documents state a plausible claim for interference with access to the

courts. This claim will proceed to service against all remaining Defendants.

CONCLUSION

For the reasons stated above, the amended complaint will proceed to service

against Defendants Donahue, Hickey, O’Dell, and Moore-Bashta. The Central Office of

Albany is terminated as a defendant.

ORDER

IT HEREBY IS ORDERED that the Clerk of Court is directed to cause the United

States Marshal to serve copies of the summons, amended complaint, and this Order upon

Defendants Donahue, Hickey, O’Dell, and Moore-Bashta, without Plaintiff’s payment

therefor; and it is further

ORDERED that the Clerk of Court is directed to forward a copy of this Order by

email to Ted O’Brien, Assistant Attorney General in Charge, Rochester Regional Office

<Ted.O’Brien@ag.ny.gov>; and it is further

ORDERED that, pursuant to 42 U.S.C. § 1997e(g), Defendants are directed to

answer the amended complaint upon service.

SO ORDERED.

Dated: January 2, 2024

Rochester, New York 7 □□□

ELIZABBTH WOKEQRD

CA JUDGE

UNITED STATES DISTRICT COURT