Opinion
98 Civ. 2663 (JGK)
March 29, 2002
OPINION AND ORDER
The plaintiff, Anthony D. Amaker, an inmate who is presently incarcerated at Clinton Correctional Facility ("Clinton") and was previously incarcerated at Green Haven Correctional Facility ("Green Haven"), brings this action pro se pursuant to 42 U.S.C. § 1981, 1983, 1985 and 1986 alleging that the defendants, all of whom are current or former prison officials at Green Haven, denied him access to the courts, retaliated against him for having brought administrative grievances and legal actions against Green Haven officials and medical providers, subjected him to cruel and unusual punishment by transferring him to Clinton without a doctor's order, and violated his right to receive mail, including two packages and a catalog.
The plaintiff's Amended Complaint also contained a claim for racial discrimination and a violation of the Equal Protection Clause of the United States Constitution. On March 31, 2000, the Court dismissed this claim without prejudice to repleading because the plaintiff's allegations were purely conclusory. See Amaker v. Haponik, No. 98 Civ. 2663, 2000 WL 343772, at *4 (S.D.N.Y. March 31, 2000). This was the second dismissal with an opportunity to replead. The plaintiff has not repleaded this claim and no longer pursues it in this action. Thus, the claims for a violation of the Equal Protection Clause, as well as for alleged violations 42 U.S.C. § 1981, 1985(3) and 1986 were insufficiently pleaded and dismissed and have not been repleaded despite the opportunity to do so.
There are currently three motions pending before the Court. The defendants move pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment dismissing all of the plaintiff's pending claims. The plaintiff moves pursuant to Rule 56(f) for additional discovery to oppose the defendants' summary judgment motion. The plaintiff also moves pursuant to Rule 56 for summary judgment on his claim for violation of his right to court access and his First Amendment right to receive mail.
I.
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that the nonmving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Gallo v. Prudential Residential Servs. Ltd. Partnership, 22 F.3d 1219. 1223 (2d Cir. 1994). "The trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224.
The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate [s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The substantive law governing the case will determine those facts that are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citingUnited States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223.
If the moving party meets its burden, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). With respect to the issues on which summary judgment is sought, if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994).
Finally, although the same standards for summary judgment apply when a pro se litigant is involved, the pro se litigant should be given special latitude in responding to a summary judgment motion. See McPherson v. Coombe, 174 F.3d 276, 279 (2d Cir. 1999) (courts "read the pleadings of a pro se plaintiff liberally and interpret them `to raise the strongest arguments that they suggest'") (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). The pro se party must also be given express notice of the consequences of failing to respond appropriately to a motion for summary judgment, unless the plaintiff's papers establish that the pro se litigant understood the nature and consequences of summary judgment. See Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir. 1999);Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996); Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994). In this case, by Notice to Pro Se Litigant Opposing Motion for Summary Judgment dated June 1, 2001, the plaintiff was advised of the procedures for responding to a motion for summary judgment, including the requirement to submit a response to the defendant's Rule 56.1 Statement and to submit counter-evidence. The plaintiff also has a number of actions pending before this Court and has demonstrated that he understands the procedures for summary judgment. See Amaker v. Coombe, No. 96 Civ. 1622; Amaker v. Goord, No. 98 Civ. 3634. The plaintiff has submitted an appropriate response to the defendants' motion in this case, together with supporting affirmations.
II.
The Court has laid out a number of the relevant facts and allegations in this case in its prior decisions, familiarity with which is assumed.See Amaker v. Haponik, No. 98 Civ. 2663, 2000 WL 343772 (S.D.N.Y. Mar. 31, 2000); Amaker v. Haponik, No. 98 Civ. 2663, 1999 WL 76798 (S.D.N.Y. Feb. 7, 1999). The following facts are either undisputed or are matters of public record, unless otherwise indicated.
A.
The plaintiff is an inmate who was been incarcerated since November 3, 1989, and was incarcerated at Green Haven from November 9, 1994 through June 12, 1998. See Historical Movement Report, attached as Ex. A to Declaration of Douglas B. Botsford dated May 25, 2001 ("Botsford Decl."); Botsford Decl. ¶ 7. On November 19, 1995, after a prison disciplinary proceeding, the plaintiff was found guilty of assault on prison staff, violent conduct and attempted possession of a weapon arising out of an incident on November 3, 1995 involving the plaintiff and several prison staff members. See Hearing Record Sheet, attached as Ex. B to Declaration of Donald Selsky dated May 24, 2001 ("Selsky Decl."). The plaintiff has raised a number of challenges to this disciplinary proceeding in another action before this Court, alleging, among other things, that the conduct of the proceeding violated his rights to due process and was based on false and retaliatory misbehavior reports, but the Court has dismissed these claims on a motion for summary judgment.See Amaker v. Coombe, 96 Civ. 1622. The petitioner also challenged his resulting confinement in the SHU in a petition for a writ of habeas corpus, which was later dismissed by another judge of this Court, who found the petition objectively frivolous. See Amaker v. Artuz, No. 98 Civ. 536, 1999 WL 370645, at *3 (S.D.N.Y. May 28, 1999). The plaintiff was also charged in New York state court with assaulting one of the prison officials involved in the November 3, 1995 incident and was subsequently found guilty of Assault in the Third Degree on the basis of those charges. See People v. Amaker, 98-842 D CR (N.Y.App. Term. Oct. 26, 1998) This conviction corroborates the findings in the disciplinary proceeding.
As a result of his conviction in the prison disciplinary proceedings, the plaintiff was sentenced to 60 months in. the Special Housing Unit ("SHU") and 60 months loss of privileges, later commuted to 30 months in the SHU and 30 months loss of privileges. See Selsky Decl. Exs. B C. Directive 4933 of the New York Department of Correctional Services ("DOCS") sets forth the general policies governing operation of the SHU. This Directive states, among other things, that "[n]o packages may be received at any time by an inmate in an SHU except books, periodicals and legal materials." DOCS Directive 4933 § 302.2(j)(3), attached as Ex. B to Declaration of Jose Maldonado dated May 31, 2001 ("Maldonado Decl."). The Directive also states that "each inmate . . . will be granted the right to receive and/or send privileged or personal correspondence," and that "[o]ne nonlegal visit per week will be permitted during visiting hours scheduled by the facility," although "[t]here will be no limits on the number of legal visits, subject to reasonable scheduling." Id. at §§ 302.2(i) (j)(1)(i).
Another Directive, Directive 4911 (II) (J), sets forth the DOC's more general (non-SHU) policies with regard to "[p]ackages received for an inmate serving a disciplinary disposition which involves `loss of packages privileges' . . . . ." See DOCS Directive 4911 (II) (J), attached as Ex. A to Maldonado Decl. According to this directive, if an inmate receives a package from any source other than a commercial source or a publisher during the first five days of "loss of privileges," the package will be delivered to the inmate. See id. at § 2(c)(1). If the inmate receives a package after this five day period, then the package will be returned to the sender unopened. See id. at § 2(c) (2).
While in the SHU, the plaintiff has filed numerous actions against various prison officials at Green Haven, most of which he has been pursuing pro se. These actions include three before this Court; a separate petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 before a different judge of this Court, challenging his disciplinary conviction and confinement in the SHU; an Article 78 Proceeding in New York State Supreme Court, challenging the same conviction and confinement; a § 1983 action in the District Court for the Eastern District of New York; and an action in the New York Court of Claims alleging, among other things, failure to prevent the theft of property. While pursuing these actions, the plaintiff has chosen to maintain many of his legal files at his mother's home, rather than in his prison cell, and to transfer certain legal documents to his mother to be photocopied and returned, with some regularity, so as not to have to use the photocopy machine at Green Haven. See Deposition of Anthony D. Amaker ("Amaker Dep.") at 102-05, attached as Ex. A to Declaration of Stacy Sabatini dated May 30, 2001 ("Sabatini Decl."). The plaintiff's mother, Grace D. Amaker, has testified that she "maintain[s] files of all his current and pending legal work." Declaration of Grace D. Amaker dated July 20, 2001 ("Grace D. Amaker Decl."), at ¶ 1. Through the use of this system, the plaintiff has been able to pursue numerous actions from within the SHU and, at least before this Court, has supported his claims with numerous filings and correspondences.
B.
Despite his record of successfully pursuing multiple court actions from within the SHU, the plaintiff has identified four incidents that serve as the basis for his complaints in this case concerning alleged interference with his court access. First, on or shortly before September 2, 1997, the Green Haven facility received a package addressed to the plaintiff from his mother. See Def's Rule 56.1 Statement ¶ 9; Amaker Dep. at 52. The plaintiff alleges that this package contained only materials from his legal files. On September 2, 1997, the package was returned to the sender, with the notations "LOP" (loss of packages and "RTS" (return to sender) written on the front of the package. See Maldonado Decl. Ex. C at 1. The plaintiff alleges that the package was opened before it was returned and that some of its contents had been tampered with or were missing.
On September 10, 1997, the plaintiff's mother received the returned package. See Amaker Dep. at 41. She brought it with her to Green Haven on a family visit on September 12, 1997, at which point she gave all of the legal papers it allegedly contained to the plaintiff. See id. at 41, 52.
The plaintiff alleges that these events delayed his receipt of documents needed to put together certain papers for his § 1983 action in the District Court for the Eastern District of New York. See id. at 41, 56. However, the plaintiff has also testified that he moved for an extension of time in that case, because of these difficulties, and that he believes the extension was granted. See id. at 56. The court ultimately dismissed that action on the ground that the claims raised were better suited to a petition for a writ of habeas corpus than a § 1983 action, and, on appeal, the Court of Appeals for the Second Circuit held that this dismissal was without prejudice. See Amaker v. Weiner, 179 F.3d 48, 52 (2d Cir. 1999).
The plaintiff alleges that the return of this September package may have also caused him some delay in obtaining documents needed to pursue a New York Criminal Procedure Law § 440.10 mction in New York State Supreme Court. See Amaker Dep. at 41. With regard to this action, the plaintiff has testified that he "expected . . . [the judge in that case] to deny the 440 [motion]" and "didn't expect him to be impartial," but "was building a record for [the] future" and wanted to "make sure everything was complete on the record." Id. at 61. The New York State Supreme Court ultimately denied the plaintiff's 440.10 motion on the ground that the same issues had been raised and decided on a prior motion before that court. See id. at 62.
Second, on or about December 7, 1997. the plaintiff was briefly transferred to Wende Correctional Facility ("Wende") so that an attorney could take his deposition for an action by the plaintiff in the Western District of New York. See Amend. Compl. ¶ 4; Gate Clearance Form at 1-2, attached as Ex. A to Declaration of George Schneider dated June 1, 2001 ("Schneider Decl."). The plaintiff was sent back on or about December 15, 1997, and was transferred into Green Haven on or about December 17, 1997. See Historical Movement Record at 2.
Prior to his transfer to Wende, the plaintiff's cell, with all of his legal documents, was packed up in his presence. See Schneider Decl. Ex. C. Deputy Superintendent Schneider also informed officials at Wende that the plaintiff was in the SHU on loss of privilege status, but did not issue any order that the plaintiff's legal mail be withheld. See Schneider Decl. ¶¶ 8, 11; see generally DOCS Directive 4919 (III) (B) (requiring that receiving facilities be notified of SHU status in cases of temporary transfers), attached as Ex. B to Schneider Decl. The plaintiff alleges that when he proceeded with his deposition at Wende, which took place on November 9, 1997, he did so "basically" without any of his legal documents and that he was unable to prepare adequately for his deposition. See Amaker Dep. at 79. The plaintiff was represented by counsel at the deposition, who decided to proceed with knowledge of the plaintiff's concerns. See id. at 80.
The plaintiff also alleges that because his room was packed up for his trip to Wende and he allegedly had restricted access to his legal work product during the trip, it was more difficult for him to prepare for trial in his action in the New York Court of Claims, which was set to begin in early January 1998, and made it impossible for him to move for an extension of the trial date and for additional discovery in that case in the weeks prior to the trial. See Amaker Dep. at 82-83.
Third, on or about December 26, 1997, after the plaintiff returned from Wende, Green Haven received another package addressed to the plaintiff from his mother, which was marked "urgent legal documents." See Schneider Decl. Ex. C at 2. Officer McDonnell, acting under the supervision of Sergeant Maldonado, handled the package and returned it to the sender noting "LOP" (loss of packages) and "not legal address" on the front of it. See Maldonado Decl. ¶ 6 Ex. C at 2. The plaintiff alleges that this package contained certain receipts and a complaint that he wanted to review and use in his upcoming trial in January 1998, which was for "the negligence of the State of New York for allowing the theft of personal property and the intentional destruction of legal property, herein." Sabatini Decl. Ex. B; see also Amaker Dep. at 86.
On December 28, 1997, the plaintiff wrote a letter of complaint to Deputy Superintendent of Administration Gayle Haponik regarding the returned packages from his mother. See Letter from Amaker to Haponik dated December 28, 1997, attached as Ex. A to Declaration of Gayle Haponik dated May 29, 2001 ("Haponik Decl."), at 2. This grievance was handled by Sergeant Maldonado, who spoke with the plaintiff about a manner of resolving the problem and later confirmed the communication by letter with Haponik and Schneider copied. See Maldonado Decl. Ex. D.
Fourth, on or about June 4, 1996, the plaintiff attempted to mail an audiotape to the District Court for the Eastern District of New York through the Green Haven mail room. On July 3, 1996, C.O. Brady approved a disbursement request for a certified return receipt of the package to that district court. See Maldonado Decl. ¶ 10 Ex. E. The defendants have produced a copy of the certified mail receipt for shipping this audiotape, which was stamped by the Stormville post office on July 3, 1996. See Maldonado Decl. Ex. F. However, the most recent return receipt indicates "no record of delivery on file," and the plaintiff alleges that this audiotape was never received by the District Court for the Eastern District of New York. See id.
C.
In November 1997, Green Haven received a catalog addressed to the plaintiff entitled "Cell Block Publications." See Maldonado Decl. ¶¶ 13-15. The plaintiff was not allowed to have the catalog. On November 10, 1997, the plaintiff grieved this issue and was informed that the catalog was not from an approved vendor. See Maldonado Decl. Ex. H.
D.
The plaintiffs' claims for retaliation in this case all relate, at least in part, to an incident that occurred during the proceedings concerning his petition for a writ of habeas corpus, which was decided by another judge of this Court. At a conference on April 28, 1998 in that case, counsel for the respondents indicated to the Magistrate Judge that arrangements had been made for the petitioner's immediate release from the SHU because his challenged time was allegedly set to expire on May 13, 1998. See Amaker v. Artuz, 1999 WL 370645, at *1. The respondents indicated that they would send the petitioner a proposed Stipulation of Voluntary Dismissal of the case due to its impending mootness. The plaintiff did not sign the April 29, 1998 Stipulation, explaining to the Magistrate Judge that he did not believe his petition was moot because his privileges had not yet been restored. The plaintiff had apparently been given an additional sentence of 30 days beyond May 13, 1998, on a different charge, although one related to the incident that led to his initial incarceration in the SHU. On May 28, 1999. the plaintiff's petition for a writ of habeas corpus was dismissed by the court. The court found the petitioner's claims to be frivolous and denied a certificate of appealability. See id.
Two grievance reports were filed against the plaintiff shortly after his refusal to voluntarily dismiss his habeas petition. On May 13, 1998, C.O. Dier issued the plaintiff a misbehavior report charging him with verbal threats, disobeying a direct order, interference with an employee, verbally harassing an employee, failure to produce an identification card and violating messhall serving procedures. See Misbehavior Report dated May 13, 1998, attached as Ex. E, at 1, to Schneider Decl. The report alleges that the plaintiff was delaying movement of the food line and that when Officer Dier directed the plaintiff to keep moving, the plaintiff responded, "Your [sic] always sweating the small shit; I ain't holding up your fucking line," placed his hands on the gate above the counter, bent over the counter and stared at the Officer. Officer Dier allegedly directed the plaintiff to produce his identification card, and the plaintiff allegedly responded "Why don't you fuckin come out here and fuckin get it if you can." The plaintiff then allegedly left the line laughing and saying. "You're a punk bitch."Id. The plaintiff was later found guilty after a hearing of the charges in the report. See Disciplinary Hearing disposition, attached as Ex. E, at 2, to Schneider Decl.
On May 14, 1998, Officer Ayotte issued a misbehavior report against the plaintiff for, among other things, harassment and interference with an employee. See Misbehavior Report dated May 14, 1998, attached as Ex. F, at 1, to Schneider Decl. The report alleges that Officer Ayotte went to the plaintiff's cell to deliver legal mail. While Ayotte was waiting for the plaintiff to sign receipts for the mail, the plaintiff allegedly became very animated and abusive and complained about a "lock in" earlier in the day. Officer Ayotte allegedly asked if the plaintiff was going to sign the returns, and the plaintiff allegedly responded: "You better stop playing fucking games with me, what are you a racist, you fucking racist." The Officer once again told the plaintiff that he had to sign for his legal mail, at which point the plaintiff allegedly stated "Ask Schneider, you will be in the lawsuit." According to the report, the plaintiff signed one paper, received his mail, then took a second sheet of paper confirming his express mail, did not sign it, and instead crumpled it into a ball. See id. The plaintiff was later found guilty after a hearing of harassment and interference with an employee. See Hearing Disposition Report, attached as Ex. F, at 2, to Schneider Decl.
On June 12, 1998, shortly before the plaintiff's term in the SHU was to expire, the plaintiff was transferred from Green Haven to Clinton. The plaintiff alleges that this transfer was done in retaliation for his failure to settle his habeas petition, and for a number of complaints he had been making against the medical personnel at Green Haven, and that he was transferred "without a doctor's order." See Amend. Compl. ¶ 15; Amaker Dep. at 19. Shortly after the transfer, the plaintiff brought an Article 78 proceeding in New York State Supreme Court alleging, among other things, that the transfer violated his Eighth Amendment right to be free from cruel and unusual punishments because it was allegedly done with deliberate indifference to his serious medical needs and because Clinton has medical facilities that are allegedly inferior to Green Haven's. See Amaker v. Goord, 721 N.Y.S.2d 139, 139-40 (App.Div. 2001). The court in that case dismissed the plaintiff's Eighth Amendment claims on the merits, and the decision was affirmed on appeal. See id. at 140.
The plaintiff filed the present action on April 15. 1998.
III.
The first issue is whether to postpone decision of the defendants' summary judgment motion and grant the plaintiff's Rule 56(f) motion for additional discovery for his opposition. It is well-established that. a party resisting summary judgment on the ground that the party needs discovery in order to defeat a Rule 56(f) motion must submit an affidavit showing (1) what facts are sought to resist the motion and how they are to be obtained, (2) how those facts are reasonably expected to create a genuine issue of material fact, (3) what effort the affiant has made to obtain them, and (4) why the affiant was unsuccessful in those efforts. Gurary v. Winehouse, 190 F.3d 37, 43 (2d Cir. 1999) (collecting cases). The plaintiff argues that he should have been given the opportunity to depose defendants in this matter, but the Magistrate Judge plainly gave the plaintiff that opportunity and the plaintiff has not shown why he did not use that opportunity before the discovery cut-off date. In his Rule 56(f) Affirmation, the plaintiff requests some documents that he alleges the defendants would need to establish their claims for summary judgment, but these alleged deficiencies go to the merits of the motion and do not provide a basis for the plaintiff to postpone decision of the motion. See Pl.'s Rule 56(f) Aff. ¶ 1. The plaintiff also asks for a number of documents that are either duplicative or are, for the reasons discussed below, not relevant or needed to decide the legal issues in these motions. See id. at ¶¶ 2-6. There is no showing that any of those documents could reasonably be expected to create a genuine issue of material fact. In any event, the plaintiff has been given ample time for discovery, and discovery is now complete. See also Contemporary Mission v. United States Postal Svc., 648 F.2d 97, 107 (2d Cir. 1981) (bare assertion that the evidence supporting a plaintiff's allegation is in the hands of the defendant is insufficient to justify denial of a motion for summary judgment under Rule 56(f)). Hence, the plaintiff has failed to meet his burden for a Rule 56(f) motion, and the motion is denied.
IV.
The defendants move first for summary judgment dismissing the plaintiff's claims for denial of court access. The plaintiff's claims are based on three basic allegations: (i) that the two packages that his mother sent him while he was on loss-of-package status in the SHU were returned; (ii) that the plaintiff was allegedly deprived of access to certain legal materials during his temporary transfer to Wende; and (iii) that C.O. Brady allegedly did not mail an audio tape on behalf of the plaintiff to the District Court for the Eastern District of New York for his case pending :n that court.
Prisoners have a First Amendment right of access to the courts, which is violated if prison officials deprive prisoners of meaningful access to the courts. See Lewis v. Casey, 518 U.S. 343, 346, 351 (1996). This constitutional right can, in turn, give rise to a number of derivative rights, including the right to access legal materials needed to prepare certain cases, including materials from a law library, and to send and receive legal mail. See, e.g., Bounds v. Smith, 430 U.S. 817 (1977) (access to law library); Cancel v. Goord, No. 00 Civ. 2042, 2001 WL 303713, at *4 (S.D.N.Y. March 29, 2001) (legal mail); see also Benjamin v. Fraser, 264 F.3d 175, 185 (2d Cir. 2001) (explaining distinction between constitutional right to court access and these derivative rights). The Court of Appeals explained in Benjamin that in order to succeed on a claim for violation of one of these derivative rights, a prisoner must demonstrate that the violation caused the prisoner actual injury because the judicial branch must leave to political branches the choice among alternative means to achieve meaningful access to the courts. See Benjamin, 264 F.3d at 185.
The plaintiff appears to argue that the right to receive legal documents from his family members in package form, while on loss-of-package status, is a derivative right or a means to assure his access to the courts. The plaintiff also appears to argue that any interference with this alleged right is a per se constitutional violation. The law is clear, however, that to establish a violation of the right to court access, an inmate must establish both a deliberate and malicious violation of one of these derivative rights and that the violation caused or will cause the prisoner actual injury, in the sense that "a `nonfrivolous legal claim had been frustrated or was being impeded' due to the actions of prison officials." Warburton v. Underwood, 2 F. Supp.2d 306, 312 (W.D.N.Y. 1998) (quoting Lewis, 518 U.S. at 353); see also Monsky v. Moraghan, 127 F.3d 243, 247 (2d Cir. 1997); Cancel v. Goord, 2001 WL 303713, at *4.
The actual injury requirement derives from the constitutional principle of standing. See Benjamin, 264 F.3d at 185. In addition, prison administrators may place reasonable restrictions on a prisoner's constitutional rights, so long as these restrictions are "reasonably related to legitimate penological interests." Turner v. Safely, 482 U.S. 78, 89 (1987). Prison administrators should be "afforded considerable deference" with respect to how, "in the interest of security, [to] regulate the relations between prisoners and the outside world." Thornburgh v. Abbott, 490 U.S. 401, 408 (1989).
A.
The plaintiff alleges that the two packages sent to him from his mother, which were returned, contained only legal materials, and that by returning these packages or supervising their return, Maldonado, McDonnell, Brady, Haponik and Bliden violated his right to receive legal mail. As the plaintiff correctly argues, the fact that a package was sent to him from his mother does not necessarily mean that it did not contain documents for use in his litigation activities.
However, it is unclear from the record whether the plaintiff's packages from his mother did in fact contain only legal materials, and there is no reasonable method for prison officials to ensure that such packages contain only legal materials without opening them. The plaintiff lost his basic privilege to receive packages while in the SHU for assaulting a staff member, violent conduct and attempted possession of a weapon. The defendants correctly argue that the loss of these basic privileges was reasonably related to the legitimate penological interests of enforcing the rules of inmate discipline and ensuring that contraband not enter the SHU. See also Frazier v. Coughlin, 81 F.3d 313, 315-17 (2d Cir. 1996) (loss of commissary, recreation, packages and telephone privileges while in SHU did not amount to deprivation of constitutional right); Pitsley v. Ricks, No. 96-CV-0372, 2000 WL 362023, at *4 n. 9 (N.D.N.Y. Mar. 31, 2000); DeMaio v. Kelly, No. 95-CV-0329, 1996 WL 685729, at *2 (W.D.N.Y. Nov. 22, 1996). This legitimate interest would be subverted if inmates could evade their loss of packages status simply be having family members mark "legal documents" on the front of packages.
There is also nothing in the present record to indicate that a policy of returning packages from family members marked "legal mail" would unreasonably interfere with an inmate's meaningful access to the courts. The plaintiff does not allege that he was denied any packages from attorneys or from the courts while in the SHU. He alleges only that the return of these two packages caused him some delays and difficulties in making his own filings to the courts. However, the plaintiff could have avoided these problems simply by maintaining his legal files in his cell — whether or not he chose to have his mother maintain duplicate copies for safekeeping — and by using the photocopy machine at; Green Haven, rather than regularly transferring documents to his mother to photocopy. Even given his less traditional choices, the plaintiff had adequate means to obtain legal documents from his family while in the SHU, either through ordinary correspondence, which was unrestricted, or on family visits, which were allowed once per week. See DOCS Directive 4933 §§ 302.2(i) (j)(1)(i). The plaintiff could and often did transfer documents to and from his family by those alternative means. Indeed, the plaintiff's complaints with his inability to receive legal materials from his mother in package form while on loss of package status are significantly undercut by the basic fact that he has pursued numerous litigations using his system, and has successfully supported his claims with consistent filings and many correspondences. See Gittens v. Sullivan, 848 F.2d 389, 390 (1988) (per curiam) ("The number of actions filed by the plaintiff as well as the avalanche of papers submitted by plaintiff in the instant suit indicate that the procedures followed by the defendants have been sufficient to provide plaintiff with meaningful access to the courts" (quoting Gittens v. Sullivan, 670 F. Supp. 119, 123 (S.D.N.Y. 1987) (Weinfeld, J.).).
In any event, the plaintiff has failed to establish any actual injury resulting from the return of these two packages. With regard to the September package, the plaintiff claims that it contained documents related to two pending lawsuits, one in the United States District Court for the Eastern District of New York and one in New York State Supreme Court. See Amaker Dep. at 41. However, the plaintiff obtained these papers from his mother during a family visit on September 12, 1997, shortly after the package was returned, and the plaintiff has testified that he moved for an extension of time and received one from the District Court for the Eastern District of New York because of this brief delay.See id. at 52, 56. Moreover, the case in the Eastern District of New York was ultimately dismissed without prejudice because the allegations were more appropriate for a writ of habeas corpus than a § 1983 action.See Amaker v. Weiner, 179 F.3d at 48. Although the plaintiff claims that some of the contents of this package were missing, he has not identified any missing documents or explained how they may have been relevant to the question whether his action was in fact appropriate for a § 1983 action rather than a petition for a writ of habeas corpus. The plaintiff agrees that his documents would not have made any difference to the New York State Supreme Court in his 440.10 motion, and this case was dismissed on the ground that the plaintiff had already raised the same claims in a prior proceeding.
Turning to the December package, the plaintiff claims actual injury based on the allegation that this package contained receipts and court documents that he wanted to review in order to prepare for a trial that was to begin in January 1998 for alleged negligence by the State of New York in allowing the theft of personal property and the intentional destruction of legal property at the prison. However, it is well established that while the Fourteenth Amendment gives inmates a right to court access, it does not give them the right to "litigate effectively once in Court." Lewis, 518 U.S. at 343. In this case, the plaintiff's original complaint to the Court of Claims listed all of the property that was allegedly stolen or destroyed and indicated values for each piece in great detail, and the plaintiff presented his claims to the court and successfully obtained a verdict of $400, although he was seeking $1200 to $1400. See Amaker Dep. at 86. The plaintiff has not identified any property that he was unable to identify in this case. Hence, there is nothing in the record to indicate that failure to obtain the receipts or other documents caused him actual injury in being able to present a claim to the court or resulted in the court dismissing any non-frivolous claims.
The plaintiff also fails to explain why he would have transferred documents that were allegedly critical to prepare for his trial to his mother shortly before his trial, or why any critical documents were sent to him in package form when there had been difficulties with the last package.
The plaintiff also argues that Deputy Superintendent Haponik is liable for interference with his legal mail because he wrote her a letter complaining about the returned mail from his mother and she did not remedy the alleged wrong. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (allowing for supervisory liability for failure to remedy a known wrong). The foregoing analysis is dispositive of this claim. In addition, the plaintiff wrote this letter after the two packages in question were returned.
B.
The plaintiff's second claim for denial of court access arises from his transfer to Wende on or about December 6, 1997, in order to be deposed for one of his pending cases. See Amend. Compl ¶ 4. The plaintiff argues that it was a violation of procedure to pack up his entire cell before this transfer, and that the pack-up disrupted his legal work. However, DOCS Directive 4919 clearly indicates that an inmate's cell should be packed up for transfers, and Deputy Superintendent Schneider has testified that "[w]hen an inmate is leaving the facility for a court transfer for more than one day, the inmate's cell is packed up, in his presence, for the purpose of having this cell available to the facility for another inmate." Schneider Decl. ¶ 9; see also Directive 4919 (III)(B)(2)(b)(6), attached as Ex. B to Schneider Decl. This policy is reasonably related to legitimate penological interests. Moreover, the plaintiff signed a form stating that he was present during the pack-up and that all of his personal property was included. See Schneider Decl. Ex. C. He does not dispute that he was allowed to take a "court" bag with him, as is ordinarily allowed under Directive 4919. See Schneider Decl. Ex. B at III (B)(2)-(4). Finally, the plaintiff was transferred in order to have a deposition taken in another case, and making himself available for depositions in his own cases is an important part of the process of accessing the courts.
The plaintiff alleges that he was transferred pursuant to a "Deprivation Order." However, he has conceded that he never saw any order requiring that he be deprived of legal materials while at Wende, and he has produced no material evidence that such an order was made. See Amaker Dep. at 78-79. Schneider has testified. that he notified officials at Wende of the plaintiff's SHU and loss of privileges status pursuant to prison policies regarding such transfers. See Schneider Decl. at ¶¶ 8, 11. However, for the reasons explained above, these losses of privileges did not violate the plaintiff's right to court access.
Finally, the plaintiff cannot establish any actual injury resulting from the problems he may have had accessing his legal materials while at Wende. The plaintiff claims, first, that he was unable to prepare adequately for his deposition at Wende. However, the plaintiff was transferred only days before his deposition, and he had ready access to all of the materials in his cell prior to the transfer. The plaintiff was also represented by counsel at his deposition, who decided to proceed with the deposition after being made aware that the plaintiff did not have documents. See Amaker Dep. at 80. As noted above, the plaintiff does not have a constitutional right to litigate effectively once in court, and the plaintiff's deposition was a part of that larger case. There is nothing in the record to suggest that the plaintiff was unable meaningfully to present all of his claims to the court in that case.
Second, the plaintiff claims that his transfer to Wende interfered with his ability to move for additional discovery before his January 1998 trial. However, the plaintiff filed his complaint in that action in December 1995, and had had ample time for discovery. The plaintiff does not explain why he was moving for additional discovery only two weeks before the start of his trial or what relevant and non-cumulative evidence he hoped to obtain and could not have obtained earlier. Hence, there is nothing in the record to suggest that there would have been any basis for the plaintiff's motion. The plaintiff was also returned to Green Haven on December 17, 1997, and, if it were critical, he could have moved the court for an extension before trial. He did not do so, and there is no merit to his claim that he was denied meaningful access to the courts because of his transfer to Wende.
C.
Finally, the plaintiff alleges that C.O. Brady violated his right to court access by failing to send an audio tape to the District Court for the Eastern District of New York in July 1997. Brady has produced a certified return receipt for the audio tape in question, which shows that the audio tape was sent to the Clerk of the Court for the District Court of the Eastern District of New York. See Maldonado Decl. Ex. F. The return receipts do not indicate that the tape was ever delivered, but the action itself has been dismissed without prejudice because its claims were more amenable to a habeas petition than a § 1983 action. The plaintiff alleges that the tape had evidence going to the merits of his claims, not to this distinction in how to raise them properly. In these circumstances, there is no material evidence that C.O. Brady deliberately interfered with his ability to present his claims to the courts in a meaningful manner, or that the plaintiff suffered any actual injury from the failure to have the tape delivered, and the claim against Brady must be dismissed.
For the foregoing reasons, all of the plaintiff's claims for interference with court access against all of the defendants in this case must be dismissed.
V.
The defendants next move for summary judgment dismissing the plaintiff's claims for violations of the plaintiff's First Amendment right to receive mail. This right extends to non-legal mail because, as the Court noted in the motion to dismiss the Amended Complaint in this case, "[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution . . . nor do they bar free citizens from exercising their own constitutional rights by reaching out to those on the `inside.'" Thornburgh, 490 U.S. at 407 (internal citations and quotation marks omitted); see also Turner, 482 U.S. at 84; Procunier v. Martinez, 416 U.S. 396, 406 (1974). The Supreme Court has nevertheless noted that "the fact of confinement and the needs of the penal institution impose limitations on constitutional rights, including those derived from the First Amendment . . . ." Jones v. North Carolina Prisoners' Labor Union. Inc., 433 U.S. 119, 125 (1977). Accordingly, while inmates have a constitutional right to receive and send mail, including legal mail, interference with a prisoner's mail is allowable to the extent that it is "reasonably related to a legitimate penological interest." Turner, 482 U.S. at 89.
In Turner, the Supreme Court listed four factors that a court must consider in order to determine whether a prison regulation impinging on inmates' constitutional rights is permissible. Those factors are "(1) whether there is a rational connection between the restriction and the legitimate governmental interest used to justify it; (2) whether alternative avenues of exercising the right remain open to the inmate; (3) whether accommodation of the right will have an adverse impact on guards, other inmates, and prison resources generally; and (4) whether obvious, easy alternatives to the restrictions exist." Purnell v. Lord, 952 F.2d 679, 683 (2d Cir. 1992) (citing Turner, 482 U.S. at 89-90).
In this case, the plaintiff argues that his First Amendment rights were violated when the two packages from his mother were returned. However, Directive 4933 prohibits inmates who are confined to SHU from receiving packages, and, for the reasons discussed above, the defendants have established a legitimate penological interest in this kind of restriction as a punishment for major transgressions of the standards of inmate behavior that led to the plaintiff's placement in the SHU, and to keep contraband out of the SHU. Moreover, under Directive 4933, inmates in the the SHU are still allowed to send and receive privileged and personal correspondence, and, hence, this restriction on packages leaves ample means for inmates to exercise their First Amendment rights to correspond with non-inmates and vice versa.
The plaintiff argues that his First Amendment rights were also violated because Maldonado confiscated a catalog called "Cell Block Publications" that the plaintiff had received in the SHU in November 1997. However, under Directive 4933, inmates in the SHU are not generally permitted to have catalogs, and are instead permitted to have only books, magazines and newspapers in the SHU. See DOCS Directive 4933 § 302.2(e)(2) (xvi). Moreover, this publication was not on the Approved Vendor List, which is a list created by DOCS in Albany to restrict certain publications from entering the prison facilities that are either inflammatory in content or could lead to breaches in security. See Maldonado Decl. ¶ 14. Prison officials have a legitimate penological interest in restricting access to such publications based on the need for security in the SHU. The plaintiff's only complaint is that he was denied one catalogue from a vendor not on the Approved Vendor List. This did not restrict the plaintiff's ability to engage in correspondence, and there is no evidence that the restriction on incoming reading materials for the plaintiff extended beyond one publication. The plaintiff thus had significant avenues to exercise his First Amendment rights and receive publications. For the foregoing reasons, all of the plaintiff's First Amendment claims should be dismissed.
VI.
In any event, even if the plaintiff had produced sufficient evidence to support his claims for interference with court access and violation of the First Amendment, the defendants correctly argue that the defendants would be entitled to qualified immunity on the plaintiff's claims. A prison official is entitled to qualified immunity from civil suits arising from performance of their discretionary functions so long as their "conduct does not violate tlearly established statutory or constitutional rights of which a reasonable person would have known." Crawford-El v. Britton, 523 U.S. 574, 588 (1998) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Whether an official may invoke this defense "generally turns on the `objective legal reasonableness' of the action . . . assessed in light of the legal rules that were `clearly established' at the time it via staken." Anderson v. Creighton, 483 U.S. 635, 639 (1987) (internal citations omitted) (quoting Harlow, 457 U.S. at 818, 819).
In this case, for the reasons discussed above, none of the defendants violated any of the plaintiff's rights in question. See generally Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151, 2154 (2001) (holding that constitutional analysis must precede qualified immunity analysis). Even if they had, there is no basis for the contention that there could have been a clearly established right to receive packages of legal materials from one's family members simply by marking them "legal mail" when an inmate was on loss of package status when these events occurred. Moreover, there was no way for a reasonable person to have known that the plaintiff's packages contained only legal mail, if in fact they did.
Similarly, there was no clearly established right to receive catalogs while in the SHU or to receive unrestricted publications. This fact would alone entitle the defendants to qualified immunity on any claims related to the plaintiff's failure to be able to keep the catalog entitled "Cell Block Publications." It would have been reasonable for Maldonado to have relied on the fact that the publication did not appear on the Approved Vendor List to believe that the catalog should have been confiscated without any danger of violating the plaintiff's constitutional rights. These facts provide additional reasons to dismiss the plaintiff's First Amendment claims and claims for violation of his right to court access.
VII.
The defendants argue that they are entitled to summary judgment on the plaintiff's claims for violation of the Eighth Amendment on collateral estoppel grounds and because he has not produced any material evidence of deliberate indifference to his serious medical needs. The Eighth Amendment prohibits the infliction of "cruel and unusual punishments" on those convicted of crimes. U.S. Const. amend. XIII; see also Wilson v. Seiter, 501 U.S. 294, 297 (1991); Farmer v. Brennan, 511 U.S. 825, 834 (1994); Estelle v. Gamble, 429 U.S. 97, 102 (1976). inadequate medical treatment for a prisoner can constitute cruel and unusual punishment.See, e.g., Estelle, 429 U.S. at 102. In order to succeed on an Eighth Amendment claim for inadequate medical treatment, however, an inmate must show that a prison official acted with (i) "deliberate indifference" to (ii) an inmate's "serious medical needs." See. e.g., Helling v. McKinney, 509 U.S. 25, 32 (1993); Estelle, 429 U.S. at 104-05.
The plaintiff's Eighth Amendment claim is based on the allegation that his transfer to Clinton was an act of deliberate indifference to his serious medical needs because Clinton allegedly has poorer medical facilities than Green Haven and because he was allegedly transferred without a doctor's order. However, the plaintiff raised this same claim before the New York State Supreme Court in an Article 78 proceeding. See Amaker v. Goord, 721 N.Y.S.2d 139 (App.Div. 2001). The Court in that case dismissed the plaintiff's claim on the merits, explaining in part that "the record demonstrates that the responsible officials at Green Haven determined that petitioner's medical conditions had stabilized and that he was medically cleared for transfer." See id. The plaintiff has had a full and fair opportunity to litigate this issue in state court, and cannot relitigate it here. See. e.g., Giakoumelos v. Coughlin, 88 F.3d 56, 59 (2d Cir. 1996).
Moreover, the plaintiff has not produced any evidence that the facilities at Clinton are constitutionally inadequate. The plaintiff's argument that the treatment he will receive at Clinton is less adequate than the treatment he has been receiving at Green Haven is, in fact, undercut by the arguments he has been making in a related case before this Court: namely, that the medical personnel at Green Haven have been acting towards the plaintiff with indifference to his serious medical needs since 1995, out of retaliation for prior grievances and lawsuits that he filed against officials at Green Haven. See Amaker v. Coombe, No. 96 Civ. 1622. Finally, the plaintiff has not produced any evidence in this case of deliberate indifference to any serious medical needs while at Clinton. Hence, the plaintiff's Eighth Amendment claims for cruel and unusual punishment based on his transfer must also be dismissed.
VIII.
The defendants argue that the plaintiff's claims for retaliation should be dismissed. In order to establish a claim for retaliation in the prison context, a plaintiff bears the initial burden of showing that: (1) he was engaging in "conduct . . . [that] was constitutionally protected"; and (2) "the protected conduct was a substantial or motivating factor in the prison officials'" actions against the plaintiff. Davidson v. Chestnuts, 193 F.3d 144, 148 (2d Cir. 1999) (per curiam) (quotation marks omitted). Moreover, if a plaintiff claiming retaliation carries this initial burden, a defendant can still defeat a claim of retaliation by establishing by a preponderance of the evidence that the defendant would have acted in the same way absent the protected conduct. See Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). The Court of Appeals for the Second Circuit has warned that retaliation claims by prisoners are "prone to abuse" because retaliation can be alleged for almost any decision an inmate dislikes. See Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983); see also Lowrance v. Achtyl, 20 F.3d 529, 535 (2d Cir. 1994) ("[T]he conclusion that the state action would have been taken in the absence of improper motives is readily drawn in the context of prison administration where we have been cautioned to recognize that prison officials have broad administrative and discretionary authority over the institutions they manage.") (internal quotation marks and citations omitted).
In this case, the plaintiff claims that Schneider transferred him to Clinton on June 12, 1998 in retaliation for grievances and lawsuits filed against officials at Green Haven, including medical personnel. Prisoners do not have a constitutionally protected liberty interest in remaining at a particular correctional facility. See Meachum v. Fano, 427 U.S. 215, 225 (1976); Meriwether v. Coughlin, 879 F.2d 1037, 1047 (2d Cir. 1989). Moreover, prison authorities are generally given wide latitude in their decisions whether to transfer an inmate from one facility to another. See Repress v. Coughlin, 585 F. Supp. 854, 857 (S.D.N.Y. 1984); see also Montanye v. Haymes, 427 U.S. 236, 243 (1976). However, such transfers cannot be made in retaliation for the exercise of a constitutionally protected right. See Davis v. Kelly, 160 F.3d 917, 920 (2d Cir. 1998);Hendricks v. Coughlin, 114 F.3d 390, 393-94 (2d Cir. 1997); Gill v. Mooney, 824 F.2d 192, 194 (2d Cir. 1987).
The plaintiff's evidence for the claim that Schneider retaliated against him by transferring him to Clinton is that he was transferred on June 12, 1998, shortly after he refused to voluntarily dismiss his petition for a writ of habeas corpus on or about April 29, 1998. However, Douglas B. Botsford, a Classification Analyst at the DOCS Office of Classification and Movement, has testified that all inmates are reviewed for transfer on a quarterly basis pursuant to Directive 4401. See Botsford Decl. ¶ 11 Ex. B. As part of this quarterly review, the plaintiff's counselor submitted a transfer referral request for the plaintiff in February 1998, before the plaintiff ever refused to withdraw his petition for a writ of habeas corpus. See id. at ¶ 10; Selsky Decl. at ¶ 8. Final decisions on transfer requests are made by the Office of Classification and Movement for the entire State of New York.See Botsford Decl. at ¶¶ 1, 15; Selsky Decl. ¶¶ 14, 15, and the plaintiff has produced no evidence that Schneider was ever involved in either of these decisions.
Moreover, Botsford has testified that an important factor in determining whether to transfer an inmate is misbehavior by the inmate and the direct effect that this behavior has or may have on the safety and security of a facility. See Botsford Decl. at ¶¶ 12-13. In this case, the plaintiff had been found guilty of assaulting a staff member at Green Haven, engaging in violent conduct and attempting to use a weapon in the assault. The plaintiff was transferred on June 12, 1998, just before his 30-month term in the SHU was to end, and just before he was to be released back into the general population, where some of the same officials were working. Selsky has testified that he requested a transfer for these reasons, and without having any knowledge of the plaintiff's lawsuits or grievances. See Selsky Decl. ¶¶ 9-14, 15. The plaintiff has produced no evidence to rebut this evidence that he was transferred for this legitimate reason, apart from his own conclusory allegations.See, e.g., See Flaherty, 713 F.2d at 13 (holding that allegations, suspicions and adverse actions are insufficient to establish retaliation absent evidence that gives substance to the claim of intent). The plaintiff's misconduct was also a sufficient reason to transfer the plaintiff, and, in these circumstances, the plaintiff's first retaliation claim must be dismissed. See Mount Healthy, 429 U.S. at 287.
The plaintiff next claims that Schneider directed the issuance of two misbehavior reports against him in retaliation for his refusal to dismiss his petition for a writ of habeas corpus. However, the misbehavior reports in question were not issued or signed by Schneider, and the plaintiff has produced no material evidence indicating that Schneider played a role in issuing these misbehavior reports. The plaintiff has not named either of the officers who issued these reports as defendants in this case, and the plaintiff has not produced any evidence to suggest that the reports are false. Finally, although the reports were issued not long after the plaintiff refused to dismiss his habeas petition, there is no reason to believe that Schneider or either of the two issuing officers were retaliating in any way for the petitioner's habeas proceeding because the officers were not defendants in that proceeding.
Therefore, there is no evidence from which a reasonable jury could find that the plaintiff can establish his claim of retaliation against Schneider.
IX.
The foregoing reasons are sufficient to dismiss all of the plaintiff's claims against all of the defendants. However, the defendants also correctly argue that a number of the plaintiff's claims directed at the defendants Artuz, Haponik and Bliden, in their supervisory capacities, should be dismissed for lack of personal involvement. In order to establish that the supervisor of a prison system is liable for a constitutional violation, an inmate must generally establish that the supervisor was personally involved in the violation. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). In particular, a plaintiff must establish either that: (i) the defendant participated directly in the alleged constitutional violation; (ii) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong; (iii) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom; (iv) the defendant was grossly negligent in supervising subordinates who committed the wrongful act; or (v) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.See Colon v. Coughlin, 58 F.3d at 873.
The plaintiff alleges that the defendant Artuz is liable for violating his constitutional rights by allegedly conspiring to transfer him to Wende and then to Clinton. The defendants have, however, produced evidence indicating that Schneider, rather than Artuz, was responsible for coordinating the plaintiff's transfer to Wende. See Schneider Decl. at ¶¶ 8, 11. The defendants have also produced evidence that the plaintiff's counselor, the Office of Classification and Movement, and the Office of Inmate Discipline/Special Housing Unit, were responsible for deciding to transfer the plaintiff out of Green Haven to Clinton. See Botsford Decl. ¶¶ 15-19; Selsky Decl. ¶ 14. The plaintiff's only evidence that Artuz was involved in any way in these events are his own conclusory statements, which are insufficient to establish Artuz's personal involvement. See Flaherty, 713 F.2d at 13.
The plaintiff similarly alleges that Haponik was personally involved in the decision to transfer him to Wende, but the plaintiff has produced nothing more than his own conclusory statements to support this allegation. This fact provides an additional ground to dismiss the claims against Haponik based on this transfer.
Finally, the plaintiff claims that Deputy Superintendent Bliden was informed of the "continuous violations concerning the mail," but he could not stop Sergeant Maldonado from retaliating against the plaintiff. See Amend. Compl. ¶ 8. This allegation falls short of a claim that Bliden was responsible for failing to prevent the conduct in question. The plaintiff does not press his claim against Bliden in his opposition papers, and the plaintiff has produced no material evidence that Bliden was deliberately indifferent to any known constitutional violations, that he was grossly negligent in managing subordinates, or that he helped create an unconstitutional policy or practice or was in any other way personally involved in the alleged constitutional violations in this case. The claims against Bliden should thus also be dismissed on these additional grounds.
X.
In his opposition papers, the plaintiff for the first time makes a number of new allegations and claims that has never before raised in this case. He argues that: (i) a package containing a thesaurus that sat on a shelf in Green Haven sat on a shelf for some time before being given to him; (ii) the plaintiff was transferred to Clinton because of an unspecified HMO problem; (iii) mail was not delivered to the Western or Northern Districts of New York in different cases; (iv) the plaintiff was prevented with visiting with his family on some occasions; (v) the plaintiff's phone conversations were interfered with. However, the plaintiff cannot raise new claims for the first time in his opposition papers in a motion for summary judgment. See McAllister v. New York City Police Dep't, 49 F. Supp.2d 688 (S.D.N.Y. 1999); Giovia v. Kiamesha Concord, Inc., 92 Civ. 3935, 1993 WL 539530, at *5 (S.D.N.Y. Dec. 23, 1993); Martin Ice Cream Co. v. Chipwich. Inc., 554 F. Supp. 933, 940 n. 15 (S.D.N.Y. 1983); Medical Arts Pharmacy, Inc. v. Blue Cross Blue Shield, Inc., 518 F. Supp. 1100, 1109 (D. Conn. 1981), aff'd, 675 F.2d 502 (2d Cir. 1982). The plaintiff's new allegations provide no basis for denying the fully briefed motion for summary judgment in this case.
The defendants have not asserted on this motion for summary judgment or on the prior motions to dismiss that this action should be dismissed because the plaintiff has failed to exhaust his prison grievance remedies. See 42 U.S.C. § 1997e(a); see also generally Porter v. Nussle, 122 S.Ct. 983, 987-92 (2002).