Hikel v. King, 84 CV 1788.

• Decision Date: 13 February 1987
• Docket Number: No. 84 CV 1788.,84 CV 1788.
• Parties: Jacob A. HIKEL, Plaintiff, v. C.O. KING, C.O. J. Francis, C.O. Russell, and Sgt. Ford, Defendants.
• Court: U.S. District Court — Eastern District of New York

659 F. Supp. 337

Jacob A. HIKEL, Plaintiff, v. C.O. KING, C.O. J. Francis, C.O. Russell, and Sgt. Ford, Defendants.

No. 84 CV 1788.

United States District Court, E.D. New York.

February 13, 1987.

Mitchell Gittin, Brentwood, N.Y., for plaintiff.

Robert Abrams, Atty. Gen., State of N.Y., Mineola, N.Y. by Robert K. Drinan, Asst. Atty. Gen., for defendants.

MEMORANDUM AND ORDER

PLATT, District Judge.

This decision is issued in conjunction with the decision of the Court dated February 13, 1987.

Plaintiff, a State prisoner, brought this action pursuant to 42 U.S.C. § 1983 against the defendant corrections officers, alleging physical assault, verbal harassment, deprivation of personal property, and denial of medical care. The defendants moved pursuant to Fed.R.Civ.P. 12(c) for judgment on the pleadings with respect to plaintiff's claims of verbal harassment and deprivation of property, moved pursuant to Fed.R. Civ.P. 56 for summary judgment on the physical assault and medical care claims and moved for dismissal of all claims as barred by the Eleventh Amendment. In connection with defendants' motions, United States Magistrate David Jordan submitted a Report and Recommendation dated November 20, 1985, to then United States District Judge Altimari. The case was subsequently reassigned to this Court.

Briefly stated, the facts alleged are as follows. At some point, plaintiff had been the victim of a shooting. Examinations Before Trial of Jacob Hikel, Jan. 4, 1985 ("Hikel EBT") at 9-10. On the morning of April 5, 1984, plaintiff was taken from Long Island Correctional Facility to a New York State court to testify as a prosecution witness in the criminal trial of the alleged gunman. Id. at 10. Plaintiff took with him two pieces of paper. One was a document from plaintiff's own convicting court indicating his conviction and the sentence he was serving. Id. at 10-11. The other was a summary, written by plaintiff, of the testimony he planned to give at the criminal trial, which he intended to show the prosecutor. Id. at 11. That evening, when plaintiff returned to the correctional facility, he was searched. One of the defendants took from plaintiff and destroyed three photographs of plaintiff's girlfriend and the two papers plaintiff had taken to court. Then the defendants threatened plaintiff, shoved him against a wall, and repeatedly punched him without provocation.

Magistrate Jordan recommended that defendants' Rule 12(c) motion be granted with respect to plaintiff's claim of verbal harassment as a de minimus violation. See Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973). The Magistrate concluded, however, that defendants' Rule 12(c) motion addressed to plaintiff's claim for destruction of personal property should be granted in part and denied in part. The Magistrate reasoned that the claim was based on two kinds of property: personal property consisting of the photographs, and documents that the Magistrate characterized as "legal papers." Accordingly, the Magistrate recommended that the motion be granted with respect to any claim based on the photographs, as a de minimus violation, but denied with respect to the destruction of the documents, as a violation of plaintiff's substantive right of access to the courts.

Magistrate Jordan also recommended that defendants' Rule 56 motion be granted unless plaintiff submitted objections that included allegations sufficient to raise material issues of fact with respect to the claims for physical assault and denial of medical care. Finally, the Magistrate recommended that defendants' motion based on the Eleventh Amendment be denied.

On December 10, 1985, defendants submitted objections to the Magistrate's report, specifically addressing his conclusions with respect to plaintiff's claim based on destruction of the documents. On February 9, 1987, after a lengthy hiatus to enable plaintiff to obtain court-appointed counsel, plaintiff, by his newly obtained attorney, filed an objection addressing the Magistrate's recommendation concerning the claim of physical assault and defendants' arguments concerning the destruction of the documents. The objection included an affidavit by plaintiff alleging facts with respect to the physical assault claim.

By Memorandum and Order dated February 13, 1987, this Court concluded that plaintiff's affidavit filed with his objection was sufficient to raise material issues of fact with respect to the physical assault claim and accordingly denied defendants' motion for summary judgment on that ground. The opinion did not address the other parts of the motion. On February 24, 1987, defendants submitted a memorandum of law arguing that plaintiff's affidavit did not raise sufficient issues of fact to survive a Rule 56 motion and that the papers allegedly destroyed in this case were not "legal" papers.

A review of defendants' memorandum, however, does not convince the Court that its decision of February 13 was in error. The Court now addresses the remaining portion of the Rule 56 motion and the remaining motions.

The Court adopts the recommendation of Magistrate Jordan with respect to plaintiff's claims for verbal harassment and destruction of plaintiff's photographs, and with respect to defendants' Eleventh Amendment motion. Since plaintiff's objection and affidavit fail to address the claim for denial of medical care, the Court adopts the Magistrate's recommendation with respect to that claim also.

The Court disagrees, however, with the Magistrate's recommendation concerning plaintiff's claim arising out of the destruction of the documents. Because the Court believed it necessary to look beyond the pleadings with respect to this claim, the Court notified the parties, by letter dated March 27, 1987, that it intended to convert defendants' Rule 12 motion into a Rule 56 motion and gave the parties three weeks to submit any additional, relevant material. Plaintiff's attorney submitted additional argument but no new evidentiary material; defendants submitted no additional material.

Having recited the lengthy procedural history of this case, we now turn to the merits of the claim based on the destruction of plaintiff's documents. Unless part of a systematic practice, the intentional deprivation of personal property is not actionable under 42 U.S.C. § 1983 if the State provides a meaningful post-deprivation remedy. Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). The existence of an adequate State remedy negates any claim of deprivation of property without due process of law within the meaning of the Fourteenth Amendment. Parratt v. Taylor, 451 U.S. 527, 542, 101 S.Ct. 1908, 1916, 68 L.Ed.2d 420 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). A claim based on the destruction of legal material rather than mere personal property is not a due process claim at all. Rather, such a claim is based on the substantive right of access to the courts and so does not fall under the rule of Hudson and Parratt. Morello v. James, 810 F.2d 344, 348 (2d Cir.1987).

Whether an allegation of destruction of property asserts a...