Whitaker v. Evans

          INITIAL REVIEW ORDER

          Michael P. Shea United States District Judge

         On July 23, 2019, the plaintiff, Percell Whitaker, an inmate who is confined at the Corrigan-Radgowski Correctional Center (“Corrigan”), brought this action pro se under 42 U.S.C § 1983 against the CRRC Mail Room for withholding his mail. ECF No. 1. On August 15, 2019, the plaintiff's motion to proceed informa pauperis was granted. ECF No. 9. However, on August 22, 2019, the Court dismissed his complaint without prejudice to repleading because the “CRCC mail room” is not a person under § 1983. ECF No. 10. After another unsuccessful attempt to file an amended complaint, on October 18, 2019, the plaintiff filed the instant amended complaint against “Jane” Evans, “Jane” Rainville, “Jane” Blackman and Captain “Jane or John” Diloreto. ECF. No. 15. The plaintiff alleges violation of his constitutional First, Sixth, and Fourteenth Amendments based on the alleged withholding of legal correspondence and magazine subscriptions. He also claims violation of Administrative Directive 10.7 and Regulations § 18-81-28 through 18-81-38.^[1] For the reasons set forth below, the court will dismiss the complaint in part.

         I. STANDARD OF REVIEW

         Under 28 U.S.C. § 1915A, the Court must review prisoner civil complaints and dismiss any portion of the complaint that is frivolous or malicious, that fails to state a claim upon which relief may be granted, or that seeks monetary relief from a defendant who is immune from such relief. Although detailed allegations are not required, the complaint must include sufficient facts to afford the defendants fair notice of the claims and the grounds upon which they are based and to demonstrate a right to relief. Bell Atlantic v. Twombly, 550 U.S. 544, 555-56 (2007). Conclusory allegations are not sufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the [C]ourt to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678 (citing Bell Atlantic, 550 U.S. at 556).

         Nevertheless, it is well-established that “[p]ro se complaints ‘must be construed liberally and interpreted to raise the strongest arguments that they suggest.'” Sykes v. Bank of America, 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)); see also Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010) (discussing special rules of solicitude for pro se litigants).

         II. FACTUAL ALLEGATIONS

         The plaintiff's amended complaint alleges that in June and July 2019, he sent an inmate request to the mail room workers, Ms. Evans, Ms. Reinville, and Captain Diloreto about his magazine subscriptions being withheld. ECF. No. 15, p. 4. He received a response that the magazines had been sent for renewal and that he would receive them. Id. However, he alleges that nothing was received. Id. at 5. His publication was renewed, but the mail room never sent him his magazines. Id.

         On August 22, 2019, defendant Blackman received the plaintiff's legal correspondence, but the plaintiff received it four days later. Id.

         He alleges that he has exhausted his administrative remedies. Id. at 7.

         III. DISCUSSION

         A. First Amendment

         The plaintiff alleges Ms. Evans, Ms. Reinville, and Captain Diloreto violated his First Amendment right to receive his magazine subscriptions; and that Ms. Blackman violated his First Amendment rights by interfering with his legal correspondence.

         a. Right to Receive Publications

         It is clearly established that “inmates have a First Amendment right to access to publications consistent with prison security[.]” Allen v. Coughlin, 64 F.3d 77, 81 (2d Cir. 1995). The plaintiff has alleged that his magazine subscription had been renewed but that Evans, Reinville and Diloreto prevented him from receiving the magazines. At this initial stage in the action, the plaintiff has adequately ...