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concluding that defendants were entitled to summary judgment based on qualified immunity where plaintiff was involved in illegal activities
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Civil Action No. 9:11-CV-0792 (NAM/DEP)
08-02-2012
RICHARD M. GREENE, Plaintiff, v. T. NAPOLI, Defendant.
FOR PLAINTIFF : RICHARD M. GREENE, Pro Se OF COUNSEL: FOR DEFENDANT: HON. ERIC T. SCHNEIDERMAN Office of the Attorney General DAVID E. PEEBLES U.S. MAGISTRATE JUDGE ROGER W. KINSEY, ESQ. Assistant Attorney General
APPEARANCES: FOR PLAINTIFF: RICHARD M. GREENE, Pro Se
OF COUNSEL:
FOR DEFENDANT:
HON. ERIC T. SCHNEIDERMAN
Office of the Attorney General
DAVID E. PEEBLES
U.S. MAGISTRATE JUDGE
ROGER W. KINSEY, ESQ.
Assistant Attorney General
REPORT AND RECOMMENDATION
Pro se plaintiff Richard Greene, a New York State prison inmate, has commenced this action pursuant to 42 U.S.C. § 1983 claiming deprivation of his civil rights. Although originally naming additional defendants and asserting other causes of action as well, the scope of plaintiff's complaint has been narrowed and now includes only a claim against defendant T. Napoli, an employee at the correctional facility in which plaintiff was incarcerated at the relevant times. The complaint alleges that Napoli unlawfully intercepted and monitored Greene's outgoing mail in violation of his constitutional rights.
Currently pending before the court is defendant Napoli's motion for the entry of summary judgment dismissing plaintiff's remaining claim for failure to state a cognizable constitutional cause of action. For the reasons set forth below, I recommend that defendant's motion be granted. I. BACKGROUND
In light of the procedural posture of the case the following recitation is derived from the record now before the court, with all inferences drawn and ambiguities resolved in favor of the plaintiff. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
Plaintiff is a prison inmate being held in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"). See generally Complaint (Dkt. No. 1). At the times relevant to his claims, plaintiff was designated to the Cayuga Correctional Facility ("Cayuga"), located in Moravia, New York, where he remains incarcerated. Id.
On April 7, 2011, David A. Stallone, the superintendent at Cayuga, instituted a mail watch, requiring that all of plaintiff's incoming and outgoing mail be diverted to defendant Thomas Napoli, an inmate grievance supervisor at Cayuga and the designated mail watch person for the facility, for a period of sixty days. Napoli Decl. (Dkt. No. 27-4) ¶¶ 3-4, 6-7 and Exh. B. Napoli understood the basis for the mail watch to be Superintendent Stallone's concern that plaintiff was attempting to file fraudulent UCC forms. Id. at ¶ 8. In accordance with the mail watch, Napoli was authorized to open envelopes containing plaintiff's mail, scan their contents, and confiscate those containing fraudulent UCC forms or otherwise evidencing plaintiff's misuse of the prison mail system. Id. at ¶ 9 and Exhs. B, C.
That mail watch order was renewed on August 18, 2011, and again on October 17, 2011. See Napoli Decl. (Dkt. No. 27-4) ¶ 7 and Exh. C.
On June 6, 2011, defendant Napoli opened and reviewed a letter sent by the plaintiff to his mother discussing a plan to obtain a UCC form and file a lien against his ex-wife. Napoli Decl. (Dkt. No. 27-4) ¶ 11 and Exh. D. After reading the letter defendant Napoli issued a misbehavior report to the plaintiff accusing him of two violations of prison rules, one prohibiting the filing of unauthorized liens (Rule 107.21) and the second related to facility correspondence (Rule 180.11). Id. at. ¶ 12 and Exh. E.
June 6, 2011 was the last effective date of the April 7, 2011, sixty-day mail watch directive.
A Tier III disciplinary hearing was conducted on June 12, 2011 to address the charges set forth in the misbehavior report. Id. at ¶ 13 and Exh. F. During the hearing Greene admitted attempting to use a lien as a means of punishing his ex-wife and ascertaining her whereabouts, which were apparently unknown to him at the time. Id. at Exh. F. at pp. 10-14. At the close of the hearing Greene was found guilty on both counts, resulting in the imposition of a penalty which included twelve months of disciplinary SHU confinement, a corresponding loss of package, commissary and telephone privileges, and a recommended ten month loss of good time credits. Id. at pp. 15-16.
The DOCCS conducts three types of inmate disciplinary hearings. See 7 N.Y.C.R.R. § 270.3. Tier I hearings address the least serious infractions and can result in minor punishments such as the loss of recreation privileges. Tier II hearings involve more serious infractions and can result in penalties which include confinement for a period of time in the Special Housing Unit ("SHU"). Tier III hearings concern the most serious violations and can result in unlimited SHU confinement and the loss of "good time" credits. See Hynes v. Squillace, 143 F.3d 653, 655 (2d Cir.), cert. denied, 525 U.S. 907, 119 S. Ct. 246 (1998).
The hearing officer's determination reflects that the correspondence violation was plaintiff's third within three months, and that he was also previously found guilty of attempting to file an unauthorized lien within that same time frame. See Napoli Decl. (Dkt. No. 27-4) Exh. F at p. 16.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on July 12, 2011. Dkt. No. 1. In his complaint, as originally constituted, plaintiff named the Cayuga Correctional Facility, Corrections Captain Chapin, Plant Superintendent T. Caza, T. Napoli, and Ms. S. Flanagan, a senior counselor at the facility, as defendants, and asserted claims under the First Amendment as well as the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, additionally alleging that defendants are "operating in commerce without a license" and engaged in criminal conduct. See id. Plaintiff's complaint was accompanied by a motion for leave to proceed in forma pauperis ("IFP"). See Dkt. No. 4.
In his complaint, which he declared under penalty of perjury is true and correct, Greene asserted that prior to commencing this action he had not filed any other lawsuits in any state or federal court relating to his imprisonment. See Complaint (Dkt. No. 1) § 5. That sworn statement is demonstrably false. On June 21, 2011, approximately three weeks before initiating this action, plaintiff filed suit against the DOCCS, Cayuga Superintendent Stallone, and another corrections officer at the facility, also complaining of interference with his outgoing mail. See Greene v. Rich, 9:11-CV-0691 (LEK/GHL) (N.D.N.Y.). A third action was commenced by Greene on September 8, 2011, after this action was opened, against the DOCCS, its Commissioner, Superintendent Stallone, and the Cayuga Correctional Facility, similarly complaining of prison conditions. See Greene v. Fischer, 9:11-CV-1061 (LEK/DRH) (N.D.N.Y.). In his complaint in that action, also given under penalty of perjury, plaintiff stated that the had not filed any prior lawsuits involving his imprisonment, despite previously having initiated two such proceedings. See Greene, No. 9:11-CV-1061 (LEK/DRH), Dkt. No. 1 at § 5. That action was dismissed by the court as frivolous on June 11, 2012. See id. at Dkt. Nos. 1, 11.
On October 4, 2011, then Chief United States District Judge Norman A. Mordue issued a decision and order granting plaintiff's IFP application and, after engaging in a sua sponte review of plaintiff's complaint pursuant to 28 U.S.C. §§ 1915(e) and 1915A, dismissed 1) plaintiff's claims against the Cayuga Correctional Facility; 2) his causes of action under the FOIA and any deemed to have been asserted pursuant to New York's FOIA counterpart, the Freedom of Information Law, N.Y. Pub. Officers Law Article 6; 3) all claims against defendants Flanagan, Chapin, and Caza; 4) his cause of action for harassment and interference with his legal work; 5) plaintiff's claims for mental or emotional injury, pursuant to 42 U.S.C. § 1997e(e), based upon his failure to make a showing of accompanying physical injury; and 6) all other potential claims referenced in plaintiff's complaint and the accompanying "nature of suit" code listings, leaving only his cause of action against defendant Napoli for tampering with his outgoing mail in violation of the First Amendment. Dkt. No. 9.
On February 29, 2012, following the close of discovery, defendant Napoli moved for summary judgment seeking dismissal of plaintiff's remaining claim. Dkt. No. 27. Plaintiff has responded in opposition to that motion by the filing of various documents, most of which are entitled "truth affidavits". See Dkt. Nos. 29, 31, and 33. In addition, plaintiff appears to have submitted a request to the court for interim injunctive relief precluding defendant from monitoring his outgoing mail while at Cayuga. See Dkt. No. 35; see also Dkt. Nos. 40, 41, 42, 43, and 44.
Among plaintiff's submissions is a letter in which he purports to seek a $1 million default judgment against defendant Napoli for failing to respond to Greene's "truth affidavit" and suggests that Napoli be deemed to be in involuntary bankruptcy. See Dkt. No. 33.
Defendant's summary judgment motion and plaintiff's subsequent application for interim injunctive relief are now ripe for determination and have been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See also Fed. R. Civ. P. 72(b).
III. DISCUSSION
A. Summary Judgment Standard
Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, summary judgment is warranted when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509-10 (1986); Security Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is "material", for purposes of this inquiry, if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S. Ct. at 2510; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S. Ct. at 2510.
A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue; the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n.4, 106 S. Ct. at 2511 n.4; Security Ins., 391 F.3d at 83. In the event this initial burden is met the opposing party must show, through affidavits or otherwise, that there is a material issue of fact for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324, 106 S. Ct. at 2553; Anderson, 477 U.S. at 250, 106 S. Ct. at 2511. Though pro se plaintiffs are entitled to special latitude when defending against summary judgment motions, they must establish more than mere "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356 (1986); but see Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir. 1999) (noting obligation of court to consider whether pro se plaintiff understood nature of summary judgment process).
When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences from the facts, in a light most favorable to the nonmoving party. Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). Summary judgment is warranted only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. See Building Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002) (citation omitted); see also Anderson, 477 U.S. at 250, 106 S. Ct. at 2511 (summary judgment is appropriate only when "there can be but one reasonable conclusion as to the verdict").
B. Plaintiff's Failure to File a Responsive Local Rule 7.1(a)(3) Statement
Although the plaintiff has submitted several documents in opposition to defendant Napoli's motion, he has not responded directly to defendant's statement of material facts not in issue, submitted pursuant to Northern District of New York Local Rule 7.1(a)(3). Before turning to the merits of defendant's motion the court must first address the significance, if any, of this failure.
The court's rules require that a party seeking the entry of summary judgment submit a statement of material facts with respect to which, the moving party contends, there exists no genuine issue. See N.D.N.Y.L.R. 7.1(a)(3). The purpose underlying this rule, which is typical of many local court rules governing summary judgment motion practice, is to assist the court in framing the issues and determining whether there exist any triable issues of fact that would preclude the grant of summary judgment. Anderson v. Dolgencorp of N.Y., Inc., Nos. 1:09-cv-360, 1:09-cv-363, 2011 WL 1770301, at *1, n.2 (N.D.N.Y. May 9, 2011) (Sharpe, J.). In order to fulfill this salutary purpose, it is obviously necessary for the court to have the benefit of both the moving party's statement and an opposition statement addressing the facts set forth in the initial statement.
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
Despite offering several submissions directed toward his claims and the defendant's motion, plaintiff Greene has failed to respond to defendant's Local Rule 7.1(a)(3) Statement. The consequences of this failure are significant. By its express terms, the governing rule provides that "[t]he Court shall deem admitted any facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." N.D.N.Y.L.R. 7.1(a)(3). Based upon plaintiff's failure, I recommend that the court invoke this rule and deem the facts set forth in Defendant's Local Rule 7.1(a)(3) Statement to have been admitted based upon Greene's failure to properly respond to that statement. See Elgamil v. Syracuse Univ., No. 99-CV-611, 2000 WL 1264122, at *1 (Aug. 22, 2000) (McCurn, S.J.) (listing cases); see also Monahan v. New York City Dep't of Corr., 214 F.3d 275, 292 (2d Cir. 2000) (discussing a district court's discretion to adopt local rules similar to 7.1(a)(3)).
Plaintiff was reminded of his obligation to submit a responsive Local Rule 7.1(a)(3) Statement in defendant's notice of motion. See Dkt. No. 27. That notice of motion was also accompanied by a document entitled "Notification of the Consequences of Failing to Respond to a Summary Judgment Motion," as required by this court's local rules in cases involving pro se litigants. See N.D.N.Y.L.R. 56.2.
C. Analysis of Plaintiff's Mail Tampering Claim
In his complaint and various subsequent submissions, plaintiff asserts that prison officials at Cayuga are not authorized under any circumstances to monitor his outgoing mail, absent a contract with him granting permission to do so. See, e.g., Complaint (Dkt. No. 1) ¶ 6. The plaintiff is mistaken.
It is true that despite their circumstances, prison inmates do not shed all of the rights guaranteed to them under the constitution when passing through the prison gates. Hudson v. Palmer, 468 U.S. 517, 523, 104 S.Ct. 3194, 3198 (1984). Analysis of whether, and if so to what extent, such individuals enjoy the benefits of constitutional protection in many instances is dependent upon the balancing of those rights against the legitimate, penological interests of prison officials, which often exist in tension with those rights. Turner v. Safely, 482 U.S. 78, 89, 107 S. Ct. 2254, 2261 (1987).
Among the protections enjoyed by prison inmates, though not unfettered, is the right "to the free flow of incoming and outgoing mail" guaranteed by the First Amendment. LeBron v. Swaitek, No. 05-CV-172, 2007 WL 3254373, at *6 (N.D.N.Y. 2007) (Sharpe, J.) (quoting Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003)). That right, however, gives way to the legitimate penological interests of prison officials when mail is monitored for the purpose of ensuring order in the prison by preventing illegal activities, in which case no constitutional violation has occurred. United States v. Workman, 80 F.3d 688, 699 (2d Cir. 1996), cert. denied, 519 U.S. 938, 117 S. Ct. 319 (1996). Accordingly, "a prisoner's right to receive and send mail may . . . be regulated." Harris v. Taylor, No. 9:09-CV-0705, 2010 WL 3021531, at * 5 (N.D.N.Y. Jul. 14, 2010) (Lowe, M.J.) (citation omitted), report and recommendation adopted, 2010 WL 3021532 (N.D.N.Y. Jul. 29, 2010) (Kahn, J.).
Actions taken by prison administrators directed toward inmate mail are subject to the overarching consideration that a prison regulation infringing on an inmate's constitutional rights is valid so long as the regulation is "reasonably related to the legitimate penological interests." Turner, 482 U.S. at 89, 107 S. Ct. at 2261. Applying this precept, and for reasons that are obvious, "[c]ourts have constitutionally afforded greater protection . . . to outgoing mail than to incoming mail." Davis, 320 F.3d at 351 (citations omitted). In addition, "courts have consistently afforded greater protection to legal mail than to non-legal mail". Id. Nonetheless, the Second Circuit has held that "'where good cause is shown, outgoing mail can be read' without violating inmates' First Amendment rights." Workman, 80 F.3d at 698 (quoting Wolfish v. Levi, 573 F.2d 118, 130 n. 27 (2d Cir. 1978), rev'd in part on other grounds sub nom., Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861 (1979)).
Courts in this circuit have been somewhat schizophrenic in their approaches to the test to be applied to a regulation or practice interfering with an inmate's free flow of incoming and outgoing mail. See Harris, 2010 WL 3021531, at * 5 (collecting cases). The majority of cases have applied the test articulated by the Second Circuit in Davis v. Goord, providing that "'[r]estrictions on prisoners' mail are justified only if they further one or more of the substantial governmental interests of security, order, and rehabilitation and must be no greater than is necessary or essential to the protection of the governmental interest involved.'" See id. (quoting Davis, 320 F.3d at 351); e.g., LeBron v. Selsky, No. 05-CV-172, 2009 WL 6312275, at * 11 (N.D.N.Y. Sep. 11, 2009) (Homer, M.J.), report and recommendation adopted as modified, 2010 WL 1235593 (N.D.N.Y. Mar. 31, 2010) (Suddaby, J.); Midalgo v. Bass, No. 9:03-CV-1128, 2006 WL 2795332, at * 12 (N.D.N.Y. Sept. 26, 2006) (Mordue, C.J.). Other courts have utilized the more generic formulation derived from the Supreme Court's decision in Turner v. Safley, providing that "when a prison regulation impinges on inmate's constitutional rights the regulation is valid if it is reasonably related to legitimate penological interest." Turner, 482 U.S. at 89, 107 S. Ct. at 2261. Harris, 2010 WL 3021531, at *5; see also, e.g., Robinson v. N.Y. Dep't of Corr. Servs., No. 9:08-CV-911, 2009 WL 3246818, at *10-11 (N.D.N.Y. Sep. 30, 2009) (McAvoy, S.J.).
In this instance, the court does not have the benefit of an affidavit from Superintendent Stallone describing the basis for his initiating a mail watch of plaintiff's correspondence. The court is therefore somewhat disadvantaged in its ability to determine whether the defendant's watch of plaintiff's mail ran afoul of the First Amendment under the controlling test. Nonetheless, based upon the evidence now before the court, I conclude that no rational juror could find that plaintiff's constitutional rights were violated, regardless of which test is applied.
The DOCCS policy concerning inmate correspondence provides that outgoing mail may not be inspected "unless there is a reason to believe that the provisions of this or any directive or inmate rule or regulation have been violated, that any applicable state or federal law has been violated, or that such mail threatens the safety, security, or good order of a facility or the safety or well being of any person." DOCCS Directive No. 4422, § III.B.9(a). That provision goes on to require that a written authorization from the superintendent for the inspection of such outgoing mail "shall set forth specific facts forming the basis for the action." Id. In this instance, the court has not been provided with any authorization from the superintendent in compliance with this provision. It is well-established, however, that the failure of prison officials to comply with internal agency regulations is not actionable under 42 U.S.C. § 1983. Cabassa v. Gummerson, 01-CV-1039, 2008 WL 4416411, at *6 n. 24 (N.D.N.Y. Sept. 24, 2008) (Hurd, J.). Accordingly, even if Superintendent Stallone did in fact fail to comply with this regulation by not setting forth specific facts forming the basis for his mail watch, that failure does not give rise to a cognizable claim in this action.
Plaintiff, through his failure to respond, has admitted the portion of Defendant's Local Rule 7.1(a)(3) Statement reflecting Superintendent Stallone's concern that Greene was attempting, through use of mailed correspondence, to file fraudulent UCC forms. See Defendant's Local Rule 7.1(a)(3) Statement (Dkt. No. 27-1) ¶ 3. That concern was borne out by the intercepted letter to plaintiff's mother outlining his plan to file fraudulent liens against his ex-wife, as determined by the Tier III hearing officer, and is also buttressed by the fact that Greene committed two prior correspondence violations and made at least one earlier effort to file an unauthorized lien within the three months preceding his Tier III hearing. See Napoli Decl. (Dkt. No. 27-4) Exh. E at pp. 15-16. In view of the facts now before the court I conclude, as a matter of law, that plaintiff's First Amendment rights were not violated through the institution of the mail watch.
The filing of unauthorized UCC liens is not only improper, but indeed constitutes criminal conduct. N.Y. Penal Law § 170.10; see also Fludd v. Goldberg, 151 A.D.3d 153, 854 N.Y.S.2d 362 (1st Dep't 2008).
The interception of a prisoner's mail also potentially implicates rights under the Fourth Amendment. See United States v. Felipe, 148 F.3d 101, 108 (2d Cir. 1998); see also LeBron, 2009 WL 6312275, at * 11. In the end, however, the analysis is the same and boils down to whether a proper showing under Davis has been made for invoking the mail watch order.
D. Qualified Immunity
In addition to requesting dismissal of plaintiff's mail watch claim on the merits, in his motion defendant Napoli alternatively asserts his entitlement to qualified immunity. Qualified immunity shields government officials performing discretionary functions "from liability for damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 815 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982)) (internal quotations omitted); see also Reichle v. Howards, ___ U.S. ___, 132 S. Ct. 2088, 2093 (2012). "In assessing an officer's eligibility for the shield, 'the appropriate question is the objective inquiry whether a reasonable officer could have believed that [his actions were] lawful, in light of clearly established law and the information the officer[ ] possessed.' " Kelsey v. Cnty. of Schoharie, 567 F.3d 54, 61 (2d Cir. 2009) (quoting Wilson v. Layne, 526 U.S. 603, 615, 119 S. Ct. 1692 (1999)) (alterations in original). The law of qualified immunity seeks to strike a balance between the need to hold government officials accountable for irresponsible conduct and the need to protect them from "harassment, distraction, and liability when they perform their duties reasonably." Pearson, 555 U.S. at 129 S. Ct. at 815; see also Reichle, 132 S. Ct. at 2093.
The determination of whether a government official is immune from suit is informed by two factors. Doninger v. Niehoff, 642 F.3d 334, 345 (2d Cir. 2011). The inquiry turns on whether the facts alleged, taken in a light most favorable to the plaintiff, show that the conduct at issue violated a constitutional right, and if so, whether that right is clearly established at the relevant time. Nagle v. Marron, 663 F.3d 100, 114 (2d Cir. 2011) (quoting Saucier, 533 U.S. at 201, 121 S. Ct. at 2156); Doninger, 642 F.3d at 345 (citing cases).
When considering the first factor, "[i]f no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156 (2001).
In Okin v. Vill. of Cornwall-On-Hudson Police Dep't, 577 F.3d 415 (2d Cir. 2009), the Second Circuit clarified that the "'objectively reasonable' inquiry is part of the 'clearly established' inquiry", further noting that "once a court has found that the law was clearly established at the time of the challenged conduct and for the particular context in which it occurred, it is no defense for the [government] officer who violated the clearly established law to respond that he held an objectively reasonable belief that his conduct was lawful." Id. at 433 n.11 (citation omitted).
Until recently, courts were required to perform the two-part qualified immunity analysis by considering those two factors in precisely that order. Doninger, 642 F.3d at 345 (citing Saucier, 533 U.S. at 201, 121 S. Ct. 2151). "Following the Supreme Court's decision in Pearson v. Callahan, however, we may now exercise our discretion in deciding the order in which to conduct the qualified immunity [inquiry]." Id. (citing Pearson, 129 S. Ct. at 821).
Indeed, because qualified immunity is "an immunity from suit rather than a mere defense to liability. . .", Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806 (1985), the Court has "repeatedly . . . stressed the importance of resolving immunity questions at the earliest possible stage in the litigation." Pearson, 555 U.S. at 231, 129 S. Ct. at 815 (quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S. Ct. 524 (1991) (per curiam)).
"The relevant question after Pearson is 'which of the two prongs . . . should be addressed in light of the circumstances in the particular case at hand.' " Okin, 577 F.3d at 430 n.9 (quoting Pearson). "The [Saucier two-step] inquiry is said to be appropriate in those cases where 'discussion of why the relevant facts do not violate clearly established law may make it apparent that in fact the relevant facts do not make out a constitutional violation at all.' " Kelsey, 567 F.3d at 61 (quoting Pearson, 129 S. Ct. at 818).
Here, it is clear that the right at stake - the right of prison inmates to the free flow of incoming and outgoing mail absent interference for the purpose of preventing illegal activities or otherwise reasonably related to legitimate penological concerns - was clearly established at the relevant times. Defendant Napoli indicates in his affidavit that he was given a directive by the superintendent at Cayuga to implement a mail watch, and understood the mail watch to be based upon concerns that plaintiff was attempting to file fraudulent UCC forms. See Napoli Decl. (Dkt. No. 27-4) ¶ 8. Given these facts I conclude that no reasonable official in defendant Napoli's position would believe that plaintiff's clearly established First and Fourth Amendment rights were violated through the institution of the mail watch and the monitoring of the plaintiff's incoming and outgoing mail. Duamutef v. Hollins, 297 F.3d 108, 113 (2d Cir. 2001). Defendant is therefore entitled to dismissal of plaintiff's claims against him on this alternative basis.
IV. SUMMARY AND RECOMMENDATION
The record now before the court reflects that the monitoring of plaintiff's incoming and outgoing mail and the interception of a non-legal piece of correspondence written to his mother in furtherance of a scheme to file fraudulent liens was proper and related to a legitimate penological concern over detecting illegal conduct. Accordingly, I recommend the entry of summary judgment dismissing plaintiff's claims on the merits or, alternatively, concluding that in any event defendant Napoli is entitled to qualified immunity. I further recommend that plaintiff's motion for injunctive relief be denied in light of this determination.
It is therefore hereby respectfully
RECOMMENDED that defendants' motion for summary judgment (Dkt. No. 27) dismissing all remaining claims in this action be GRANTED, and judgment be entered in favor of defendant, and that plaintiff's application for interim injunctive relief (Dkt. No. 35) be DENIED, in light of this determination.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.
_________________
David E. Peebles
U.S. Magistrate Judge
Dated: August 2, 2012
Syracuse, NY