810 F.2d 344 (2nd Cir. 1987), 183, Morello v. James

Docket Nº:183, Docket 86-2106.
Citation:810 F.2d 344
Party Name:Vincent MORELLO, Plaintiff-Appellant, v. Charles JAMES, J. Nowakawski, Correction Officer, and Thomas A. Coughlin, Commissioner of the New York State Department of Correctional Services, Defendants-Appellees. Vincent MORELLO, Plaintiff-Appellant, v. Harold J. SMITH, Superintendent, Thomas A. Coughlin, and Unknown Correctional Officers, Defendants-A
Case Date:January 26, 1987
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 344

810 F.2d 344 (2nd Cir. 1987)

Vincent MORELLO, Plaintiff-Appellant,

v.

Charles JAMES, J. Nowakawski, Correction Officer, and Thomas

A. Coughlin, Commissioner of the New York State

Department of Correctional Services,

Defendants-Appellees.

Vincent MORELLO, Plaintiff-Appellant,

v.

Harold J. SMITH, Superintendent, Thomas A. Coughlin, and

Unknown Correctional Officers, Defendants-Appellees.

No. 183, Docket 86-2106.

United States Court of Appeals, Second Circuit

January 26, 1987

Argued Oct. 28, 1986.

Page 345

Thomas J. Moloney, New York City (Mitchell A. Lowenthal, Cleary, Gottlieb, Steen & Hamilton, New York City, of counsel), for plaintiff-appellant.

Peter G. Crary, Asst. Atty. Gen., Albany, N.Y. (Robert Abrams, Atty. Gen., Peter H. Schiff, Deputy Sol. Gen., Nancy A. Spiegel, Asst. Atty. Gen., Albany, N.Y., of counsel), for defendants-appellees.

Before MESKILL, MINER and ALTIMARI, Circuit Judges.

MESKILL, Circuit Judge:

Vincent Morello appeals from two judgments of the United States District Court for the Western District of New York, Telesca, J., dismissing his civil rights claims brought under 42 U.S.C. Sec. 1983 (1982) for failure to state a claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(6). Morello complained that New York state prison officials violated his constitutional right of access to the courts by intentionally and selectively taking the pro se legal materials that he had prepared for his state court appeal of his criminal convictions. The district court decided that, even if the facts alleged by Morello were sufficient to support a claim of substantive due process violation, the opinion in Love v. Coughlin, 714 F.2d 207 (2d Cir.1983) (per curiam), required dismissal. We reverse.

BACKGROUND

We adopt the district court's succinct statement of the facts, which accepts as true Morello's account of events:

In the early morning of November 6, 1983, while Morello was incarcerated at the Collins Correctional Facility, he completed work on a brief for an appeal he had pending before the Appellate Division of the New York Supreme Court, Fourth Department. Later that day, before his appellate brief could be notarized, Morello was segregated from the general population and placed in confinement. All of his property was "packed up," and placed in another room by Corrections Officer Nowakawski.

The following day, Morello was transferred to the Attica Correctional Facility. He did not receive any of his personal belongings until six days later, on November 13, 1983. When Morello's property was finally turned over to him, two of his eleven legal folders were missing. At some point during his transfer from Collins to Attica, Morello alleges that as yet unidentified correctional officers searched his bags, and arbitrarily stole various items of his personal property, including his appellate briefs and records of a phone call made by his attorney to the Niagara Falls police. Also taken were all of his notes, research materials, and rough draft worksheets. Morello alleges that the loss caused him irreparable harm in perfecting his appeal, since he had received legal assistance in the preparation of his appellate brief that could not be replaced.

Morello's complaint, brought pursuant to 42 U.S.C. Sec. 1983, seeks punitive and compensatory damages, as well as other appropriate relief, for the "theft and removal" of his appellate pro se brief and research.

Page 346

Morello v. James, 627 F.Supp. 1571 (W.D.N.Y.1986) (consolidating Morello's substantially identical claims against officials at Collins Correctional Facility and Attica Correctional Facility).

Although Morello has since obtained legal assistance, he brought his section 1983 complaint pro se before the district court and received a liberal construction of his pleadings as required by Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 175, 66 L.Ed.2d 163 (1980) (per curiam); Salahuddin v. Coughlin, 781 F.2d 24, 28-29 (2d Cir.1986). The district court read Morello's section 1983 complaint as alleging that state prison officials acted intentionally and in violation of his substantive constitutional right of access to the courts, but did not decide whether the facts alleged were...

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