United States District Court, D. Connecticut
RULING ON DEFENDANTS' MOTION FOR SUMMARY
Michael P. Shea United States District Judge
plaintiff, Kareem Hedge, commenced this civil rights action
against Commissioner Scott Semple and Counselor Supervisor R.
Digennaro. He contends that defendant Digennaro
violated his right of access to the courts when she delayed
the mailing of a response to a court order causing a habeas
corpus action filed in federal court in New York to be
dismissed. The defendants move for summary judgment. For the
reasons that follow, the defendants' motion is granted.
Standard of Review
motion for summary judgment may be granted only where there
is no genuine dispute as to any material fact and the moving
party is entitled to judgment as a matter of law. Rule 56(a),
Fed. R. Civ. P.; In re Dana Corp., 574 F.3d 129, 151
(2d Cir. 2009). The moving party may satisfy his burden
“by showing-that is pointing out to the district
court-that there is an absence of evidence to support the
nonmoving party's case.” PepsiCo, Inc. v.
Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002) (per
curiam) (internal quotation marks and citations omitted).
Once the moving party meets this burden, the nonmoving party
must set forth specific facts showing that there is a genuine
issue for trial. Wright v. Goord, 554 F.3d 255, 266
(2d Cir. 2009). He must present such evidence as would allow
a jury to find in his favor to defeat the motion for summary
judgment. Graham v. Long Island R.R., 230 F.3d 34,
38 (2d Cir. 2000). The nonmoving party “must offer some
hard evidence showing that its version is not wholly
fanciful.” D'Amico v. City of New York,
132 F.3d 145, 149 (2d Cir. 1998).
times relevant to this action, the plaintiff was confined in
a Connecticut correctional facility serving a Connecticut
sentence. On November 7, 2013, the petitioner filed a
petition for writ of habeas corpus in the U.S. District Court
for the Eastern District of New York (the “Eastern
District”) challenging a New York state sentence.
November 26, 2013, the Eastern District entered an Order to
Show Cause directing the plaintiff to submit a written
affirmation explaining why the petition should not be
dismissed. In the affirmation, the plaintiff was directed to
answer two simple questions: had he served the New York
sentence, and were there factors to warrant equitable tolling
of the one-year limitations period set forth in 28 U.S.C.
§ 2244(d). The plaintiff was cautioned that the
affirmation had to be filed within thirty days from the date
of the order, i.e., by December 26, 2013. The order
informed the plaintiff that if he did not timely file the
affirmation, his petition would be dismissed.
plaintiff gave his affirmation to Counselor Schaffer for
mailing on December 29 or 30, 2013. The affirmation was not
mailed and later was found to have been held by defendant
Digennaro. On January 14, 2014, the Eastern District
dismissed the habeas petition without prejudice.
plaintiff contends that the actions of defendant Digennaro
violated his right of access to the courts. In response, the
defendants argue that the plaintiff cannot establish that he
suffered an actual injury as a result of defendant
state a claim for denial of access to the courts, the
plaintiff must demonstrate that the defendants acted
deliberately and maliciously and that he suffered an actual
injury. See Lewis v. Casey, 518 U.S. 343, 353
(1996). To establish an actual injury, the plaintiff must
allege facts showing that the defendants took or were
responsible for actions that hindered his efforts to pursue a
legal claim, prejudiced one of his existing actions, or
otherwise actually interfered with his access to the courts.
See Monsky v. Moraghan, 127 F.3d 243, 247 (2d Cir.
2002). The right of access to the courts “is ancillary
to the underlying claim, without which [an inmate] cannot
have suffered injury by being shut out of court.”
Christopher v. Harbury, 536 U.S. 403, 415 (2002).
Thus, to establish an actual injury, the plaintiff must show
that his underlying claim was not frivolous and that his
pursuit of that claim was frustrated by the defendants'
actions. See id.; Lewis, 518 U.S. at
351-54. “[T]he predicate claim [must] be described well
enough to apply the ‘nonfrivolous' test and to show
that the ‘arguable' nature of the underlying claim
is more than hope.” Christopher, 536 U.S. at
lawsuit at issue was a habeas corpus action, and the case was
dismissed because the affirmation was not timely filed. The
defendants argue, however, that they were not responsible for
the plaintiff's failure to timely file his affirmation.
The court order directed the plaintiff to file the
affirmation within thirty days from November 26, 2013,
i.e., on or before December 26, 2013, and stated
that the petition would be dismissed if he did not do so.
See Defs.' Mem. Attachment A,
Branker v. New York, No. 13-CV-6252(WFK),
2013 WL 6199986 (E.D.N.Y. Nov. 26, 2013), ECF No. 14-2 at 4.
The plaintiff states in his verified complaint that he did
not give the document to Counselor Schaffer for mailing until
December 30, 2013 and states in his affidavit that he gave it
to Counselor Schaffer on December 29, 2013. In either case,
he did not give the document to Counselor Schaffer for
mailing until at least three days after the deadline. Thus,
by the plaintiff's own admission, his petition was
subject to dismissal before any actions were taken by
opposition to the motion for summary judgment, the plaintiff
states that, on December 15, 2013, he gave Counselor Schaffer
an envelope containing motions for extension of time and
appointment of counsel to be mailed to the Eastern district,
but she did not mail the envelope. ECF No. 34-2 at 1 &
34-3 at 2. These motions were not responsive to the
court's order in Branker. Even assuming that the
court would have granted the motion for extension of time,
however, this event does not demonstrate that the defendants
caused the required actual injury.
Schaffer is not named as a defendant in this case. Although
the plaintiff did include John or Jane Doe as a defendant,
Counselor Schaffer cannot be the Doe defendant as the
plaintiff was aware of her identity at the time he filed the
complaint and referred to her in the complaint. The plaintiff
has presented no evidence in opposition to the motion for
summary judgment demonstrating that defendant Digennaro or
defendant Semple had any involvement in the failure to mail
the envelope given to Counselor Schaffer on ...