Acevedo v. Fischer

• Decision Date: 29 September 2014
• Docket Number: No. 12-cv-6866 (RA),12-cv-6866 (RA)
• Parties: FRANCISCO ACEVEDO, Plaintiff, v. BRIAN FISCHER, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

FRANCISCO ACEVEDO, Plaintiff, v. BRIAN FISCHER, et al., Defendants.

No. 12-cv-6866 (RA)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

September 29, 2014

OPINION AND ORDER

RONNIE ABRAMS, United States District Judge:

In this § 1983 action, incarcerated pro se Plaintiff Francisco Acevedo asserts that he suffered a number of injuries while confined at three different prisons. He names twenty-three Defendants in his Second Amended Complaint ("SAC"), including a Westchester County Assistant District Attorney, detective from the Yonkers Police Department, and investigator from the New York State Inspector General's office who were involved in his prosecution; a mental health professional from the Green Haven Correctional Facility who diagnosed and treated him; and various corrections officers and supervisory officials from the prisons where he was incarcerated. The SAC alleges that Defendants improperly took a sample of his DNA, monitored his mail and disseminated the contents of that mail to other inmates, placed him on "suicide watch" without justification, harassed and verbally abused him, searched his prison cell without cause, and denied him due process when imposing various disciplinary sanctions. Acevedo seeks compensatory and punitive damages and injunctive relief.

Defendants have moved to dismiss the SAC for failure to state a claim. For the following reasons, the motions are granted in part and denied in part. Specifically, all of Acevedo's claims are dismissed, with the exception of his First Amendment claims against Defendants Geiss,Serrano, Lee, and Warrington for allegedly monitoring and interfering with his mail without good cause to do so.

BACKGROUND

The Court takes judicial notice that Plaintiff is currently serving a sentence of seventy-five years to life in prison as a result of his convictions for second-degree murder.¹ He was convicted after his DNA was found to match DNA found on his victims; many of his allegations in this case assert that various correctional employees attempted to coerce and pressure him into dropping his direct appeal of his criminal convictions, which apparently challenges the legality of the initial taking of his DNA. (See, e.g., SAC at 19;² State Defs.' Reply at 3 n.2.) Acevedo asserts that his constitutional rights were violated at three different institutions: Green Haven, Great Meadow, and Sullivan Correctional Facilities.³

The SAC spans thirty-three handwritten pages, and Acevedo has attached over two hundred additional pages of exhibits. In lieu of attempting to describe Acevedo's lengthy allegations at the outset, the Court will describe them individually in the following Section, when it assesses their sufficiency.

Plaintiff filed his initial Complaint on September 10, 2012. (ECF No. 2.) The Court dismissed certain claims and certain Defendants in its screening of the Complaint pursuant to 28 U.S.C. § 1915A. (ECF No. 6.) Plaintiff then filed a First Amended Complaint on January 18,2013. (ECF No. 7.) After Defendants moved to dismiss, Plaintiff sought—and the Court granted—leave to file the SAC. (ECF No. 38.) Defendants again moved to dismiss (ECF Nos. 93, 98), and Plaintiff, after receiving several extensions, filed over 550 pages in opposition (ECF No. 115)—many of which are irrelevant and attempt to challenge various evidentiary and other rulings made by the trial judge in Acevedo's criminal case.

Defendants' motions were fully submitted as of August 21, 2014. (ECF No. 129.)

DISCUSSION

To withstand a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief thai is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), Under this familiar standard, the Court assumes that "well-pleaded factual allegations" are true, disregards legal conclusions that are not entitled to an assumption of truth, and assesses whether the complaint "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678-79. Determining whether a complaint satisfies this standard is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679.

In undertaking this inquiry, the reviewing court is limited to the text of the complaint, "any written instrument attached to the complaint as an exhibit or incorporated in the complaint by reference," and "documents upon which the complaint relies and which are integral to the complaint." Subaru Distribs. Corp. v. Subaru of Am., Inc., 425 F.3d 119, 122 (2d Cir. 2005). Moreover, where, as here, the plaintiff is pro se, the complaint must be read liberally "with special solicitude" and interpreted "to raise the strongest claims that it suggests." Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011). Although litigants generally may not constructively amend their complaint by raising new factual allegations in their opposition papers, see, e.g.,Rosado v. Herard, 12-cv-8943, 2014 WL 1303513, at *11 (S.D.N.Y. Mar. 25, 2014), courts often consider such assertions when made by pro se litigants, see, e.g., id.; Rodriguez v. Rodriguez, 10-cv-00891 LGS, 2013 WL 4779639, at *1 (S.D.N.Y. July 8, 2013). In view of Acevedo's pro se status, the Court considers new factual allegations raised in his opposition both when determining whether the SAC survives Defendants' motions and in determining whether granting leave to amend would be futile.⁴

Broadly speaking, the SAC's claims can be divided into seven categories, which the Court now considers.

1. Mail Monitoring Claims

Acevedo alleges that Defendants Ward, Geiss, Serrano, and Lee monitored his mail—without his knowledge or consent—and then disclosed the contents of that mail to other inmates in a "psychological ploy to extort and coerce a false confession." (SAC at 5-6.) In particular, the SAC alleges that Westchester County Assistant District Attorney Tim Ward attempted to "introduce a box full of letters spanning 3 yrs. and 3 prisons into evidence" at a pretrial suppression hearing. (Id. at 5.) When the trial judge asked Ward where he obtained the letters, Ward allegedly stated that he "got them from I.G."—apparently, the state Inspector General's office—who, in turn, "got them from the Warden." (Id.) Acevedo names Defendant William Lee—the superintendent of Green Haven, which is apparently one of the prisons where Acevedowas housed during the monitoring—as well as Defendant Anselmo "Sonny" Serrano, who was the individual at the Inspector General's office responsible for obtaining the letters. (Id.) Defendant Geiss was the detective assigned to investigate Acevedo; attached to the SAC is a memorandum from Geiss stating that he reviewed twenty-five letters either addressed to or sent by Acevedo from prison over approximately a four-month period in late 2009 and early 2010. (Id. at 38.) Another memorandum from Detective Geiss, which Acevedo submitted with his opposition, confirms that Acevedo was placed on a "mail watch" and states that Geiss obtained the letters from Defendant Serrano. (See Pl.'s Opp. at ECF No. 115-9 at 13, 18.) According to the SAC, this "uninformed mail watch" did not "serv[e] any legitimate penological interest" but rather was aimed at acquiring evidence "to use in an indictment and trial." (SAC at 5.)

The Second Circuit has recognized that the First Amendment protects "a prisoner's right to the free flow of incoming and outgoing mail." Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003). This right, however, is not unlimited. "[T]hcre is no question that prison officials may open incoming mail to ensure that no contraband is contained in the correspondence." Word v. Croce, 169 F. Supp. 2d 219, 228 (S.D.N.Y. 2001). Moreover, "interception of a defendant's prison correspondence does not violate that individual's First or Fourth Amendment rights if prison officials had 'good' or 'reasonable' cause to inspect the mail." United States v. Felipe, 148 F.3d 101, 108 (2d Cir. 1998); accord United States v. Workman, 80 F.3d 688, 698 (2d Cir. 1996).

The Second Circuit has not provided a precise definition of what constitutes "good or reasonable cause" to read an inmate's mail. The Circuit has, however, explained that when determining whether an inmate's mail may be read, courts should employ "the same First Amendment analysis" the Supreme Court uses when addressing the broader question of whethera prison regulation impermissibly infringes on a prisoner's right to send and receive mail. Heimerle v. Attorney Gen., 753 F.2d 10, 12 (2d Cir, 1985^s): see Workman, 80 F.3d at 698. In those cases, the Supreme Court has drawn a distinction between incoming and outgoing mail: limitations on outgoing mail must "further[ ] one or more of the substantial governmental interests of security, order, and rehabilitation," and the restriction "must be no greater than is necessary or essential to the protection of the particular governmental interest involved." Thornburgh v. Abbott, 490 U.S. 401, 408 (1989) (quoting Procunier v. Martinez, 416 U.S. 396, 413 (1974)); id. at 413 (explaining that the Martinez standard applies to outgoing mail). Regulations on incoming mail are subject to a less rigorous standard—one that considers only whether the restriction is "reasonably related to legitimate penological interests." Id. at 409 (quoting Turner v. Safley, 482 U.S. 78, 89 (I987)).⁵

Here, Defendants rely on cases that found no First Amendment violation when prisoners' mail was monitored in the following circumstances: after officials learned an inmate was "the leader of the Latin Kings, was actively recruiting new members, had violated prison regulations related to mail, and had written about the commission of illegal acts," United States v. Felipe, 148 F.3d 101, 108 (2d Cir. 1998); after an inmate assaulted a correctional officer and wrote a letter to his girlfriend about the assault, Ford v. Phillips, 05 CIV. 6646 (NRB), 2007 WL...