Opinion
CV 00-5419 (RR)
March 19, 2002
KENNETH STANISLAS, East Elmhurst, New York, Plaintiff Pro Se
HONORABLE MICHAEL A. CARDOZO, NEW YORK CITY CORPORATION COUNSEL, New York City Law Department, New York, New York, By: Brett H. Klein, Esq., Attorney for Defendants.
Memorandum and ORDER
Plaintiff Kenneth Stanislas, proceeding pro se, sues Andrew Tolson, the Warden of the Brooklyn House of Detention ("BID"), and Correction Officer Suber, a BHD mailroom clerk, for failing to mail his state court petition for habeas corpus relief, thereby violating his constitutional fights of access to the courts and due process. See 42 U.S.C. § 1983. Defendants move for dismissal pursuant to Fed.R.Civ.P. 12(b)(6) on the grounds that Stanislas fails to state a claim upon which relief can be granted. Having reviewed the parties' submissions, the court denies defendants' motion.
Factual Background
In reviewing defendants' motion to dismiss, this court is obliged to assume the truth of all material facts alleged in the complaint and to draw all reasonable inferences in plaintiff's favor. See Sweet v. Sheahan, 235 F.3d 80, 82 (2d Cir. 2000). Further, because plaintiff proceeds pro se, the court liberally construes his affidavit in opposition to the motion as an amendment to his original pleadings See Washington v. James, 782 F.2d 1134, 1138-39 (2d Cir. 1986) (holding that court should consider pro se plaintiff's affidavit in opposition to Rule 12 motion as an amendment to the challenged complaint).
On July 21, 2000, plaintiff Kenneth Stanislas, then incarcerated at BID, placed a state court petition for a writ of habeas corpus in the prison mailbox. Since plaintiff had no funds in his BID account, he requested that his legal mail be forwarded to the court without cost pursuant to the policies and procedures of the New York City Department of Correction. Instead of doing this, the BID returned Stanislas's petition to him on August 7, 2000.
Stanislas asserts that the petition challenged the denial of his due process rights in a "preliminary hearing proceeding" on July 18, 2000.
Stanislas asserts that he discussed BHD's failure to transmit his with defendant Officer Suber, who was then a clerk in the mailroom. She told him that was "how Brooklyn House runs its program." Plaintiff also submitted written complaints about the incident to defendant Warden Tolson and the "administration," but received no response. When he discussed the matter with the BID grievance coordinator, Ms. Reeves, she told him that his complaint was not grievable.
Stanislas asserts that BHD's failure to transmit his habeas petition prevented him from filing a timely request for relief with the state courts.
Discussion
I. Exhaustion of Administrative Remedies
The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) (Supp. 2001) ("PLRA"), provides that "[n]o action shall be brought with respect to prison conditions . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." See Porter v. Nussle, ___ U.S. ___, 122 S.Ct. 983, 992 (2002) (holding that statute's reference to "prison conditions" applies "to all inmate suits about prison life, whether they involve general circumstances or particular episodes"). If, however, administrative officers have no authority to act on the subject of a complaint, the inmate has nothing to exhaust. See Booth v. Churner, 532 U.S. 731, ___, 121 S.Ct. 1819, 1822 n. 4 (2001). For purposes of this motion, the court accepts Stanislas's unchallenged representation that his complaint about prison mail was not grievable and, therefore, assumes that the exhaustion requirement of the PLRA does not bar his suit.
II. Failure to State a Claim
Defendants concede, as they must, that established case law recognizes prisoners' constitutional right of access to the courts. See Bounds v. Smith, 430 U.S. 817, 821 (1977); accord Lewis v. Casey, 518 U.S. 343, 350 (1996). Indeed, the Supreme Court has held that, for this access to be meaningful, "indigent inmates must be provided at state expense with paper and pen to draft legal documents . . . and with stamps to mail them." Bounds v. Smith, 430 U.S. at 824-25. Nevertheless, a prisoner suing for a violation of his right of access to the courts must allege both a deliberate interference with the right see Morello v. James, 810 F.2d 344, 347 (2d Cir. 1987); Washington v. James, 782 F.2d at 1139, and an actual ensuing injury, see Lewis v. Casey, 518 U.S. at 357 (stating that a prisoner must assert that an actionable claim regarding his sentence or condition of confinement "has been lost or rejected, or that the presentation of such a claim is currently being prevented").
Defendants argue that Stanislas has not adequately alleged either of these required elements. To the extent Stanislas accuses defendants of mere negligence, defendants are correct that he fails to state a claim for deliberate interference with his constitutional rights. See Daniels v. Williams, 474 U.S. 327, 328 (1986) (holding that due process clause not implicated by negligent act of official); accord Grune v. Rodriguez, 176 F.3d 27, 33 (2d Cir. 1999) (stating that plaintiffs bringing due process claims under § 1983 must establish more than mere negligence by defendant). A liberal reading of Stanislas's papers, however, reveals that his claim is not limited to negligence. He also accuses Officer Suber of deliberately failing to mail his papers and delaying their return to him because. as she is alleged to have stated, that was "how Brooklyn House runs its program." Such a statement, if proved, would not only support an inference of deliberate conduct by Officer Suber, it could support a claim of supervisory liability by Warden Tolson. See Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001) (holding that supervisor may be liable for creating or permitting a policy that violates a party's constitutional rights); Wright v. Smith, 781 F.2d 319, 323 (2d Cir. 1994). Similarly, Stanislas asserts direct harm from defendants' failure to mail his habeas petition on July 21, 2000, i.e., his subsequent application for relief was rejected as untimely by the state courts. Undoubtedly, defendants will use discovery to ascertain if plaintiff was indeed time-barred from presenting viable claims for relief in his criminal case, but on the present record this court cannot say that Stanislas could not, as a matter of law, prove that he has been injured by the alleged constitutional violation.
Conclusion
For the reasons stated in this memorandum, plaintiff's complaint is deemed amended to include the allegations contained in his May 3, 2001 affidavit; the caption of this case is hereby amended to identify Correction Officer Suber as a named defendant, and defendants' motion to dismiss is denied.
The court assumes that Corporation Counsel accepts service for Officer Suber. If that is not the case such that the United States Marshal must be put to the burden of serving this defendant with the complaint and affidavit, defense counsel is to advise the court in writing on or before April 1, 2002.
SO ORDERED.