Colon v. Sullivan

S.D. New York

Colon v. Sullivan

681 F. Supp. 222, 1988 U.S. Dist. LEXIS 2040, 1988 WL 22419

CourtDistrict Court, S.D. New York

DecidedMarch 15, 1988

DocketNo. 86 Civ. 7655 (JES)

StatusPublished

Cited by5 cases

This text of 681 F. Supp. 222 (Colon v. Sullivan) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Colon v. Sullivan, 681 F. Supp. 222, 1988 U.S. Dist. LEXIS 2040, 1988 WL 22419 (S.D.N.Y. 1988).

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Opinion

MEMORANDUM OPINION AND ORDER

SPRIZZO, District Judge:

Pro Se prisoner Juvenal Colon brings this action pursuant to 42 U.S.C. § 1983 (1982). Plaintiff alleges that while incarcerated at the Sing Sing Correctional Facility, he was wrongfully denied permission to attend his grandmother’s funeral. Defendants have moved to dismiss the complaint for failure to state a claim upon which relief can be granted pursuant to Fed.R. Civ.P. 12(b)(6). Plaintiff has not responded to the motion.

Plaintiff alleges that after being informed that his grandmother had died, he sought permission to attend her funeral. See Complaint at 3-4. Although the grandmother’s name was on an approved correspondence and visiting list, the list was not located before the funeral. An internal grievance investigator found that plaintiff was denied permission to attend because of the failure to find the list and the short time involved. The investigator further found that the list was not available because of a breakdown in the procedure on transfer between correctional facilities. See Inmate Grievance Committee Investigation Report, attached to Complaint at 8-9.

In order to recover under section 1983, a plaintiff must allege that the defendants deprived him of a federal right and that they acted under color of state law. See Gomez v. Toledo, 446 U.S. 635, 638, 100 S.Ct. 1920, 1922-23, 64 L.Ed.2d 572 (1980). Here, plaintiff has not met that burden. Denying a prisoner permission to attend the funeral of a relative does not involve the denial of a liberty interest protected by the Constitution. See Hicks v. New York State Department of Corrections, No. CV-84-3497, slip op. at 5-6 (E.D. N.Y. Nov. 30, 1984) (Altimari, J.); Wood-son v. Malcolm, No. 78 Civ. 1383 (CBM), slip op. (S.D.N.Y. Aug. 9,1980) (Motley, J.). In addition, plaintiff has made no allegation of intentional wrongful conduct. Therefore, even assuming that the actions of defendants were negligent, the complaint must be dismissed because there can be no recovery under section 1983 on the basis of negligence. See Daniels v. Williams, 474 U.S. 327, 335-36, 106 S.Ct. 662, 667-68, 88 L.Ed.2d 662 (1986).

For the reasons stated above, defendants’ motion to dismiss is granted and the complaint is dismissed.

It is SO ORDERED.

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MEMORANDUM OPINION AND ORDER

SPRIZZO, District Judge:

Pro Se prisoner Juvenal Colon brings this action pursuant to 42 U.S.C. § 1983 (1982). Plaintiff alleges that while incarcerated at the Sing Sing Correctional Facility, he was wrongfully denied permission to attend his grandmother’s funeral. Defendants have moved to dismiss the complaint for failure to state a claim upon which relief can be granted pursuant to Fed.R. Civ.P. 12(b)(6). Plaintiff has not responded to the motion.

Plaintiff alleges that after being informed that his grandmother had died, he sought permission to attend her funeral. See Complaint at 3-4. Although the grandmother’s name was on an approved correspondence and visiting list, the list was not located before the funeral. An internal grievance investigator found that plaintiff was denied permission to attend because of the failure to find the list and the short time involved. The investigator further found that the list was not available because of a breakdown in the procedure on transfer between correctional facilities. See Inmate Grievance Committee Investigation Report, attached to Complaint at 8-9.

In order to recover under section 1983, a plaintiff must allege that the defendants deprived him of a federal right and that they acted under color of state law. See Gomez v. Toledo, 446 U.S. 635, 638, 100 S.Ct. 1920, 1922-23, 64 L.Ed.2d 572 (1980). Here, plaintiff has not met that burden. Denying a prisoner permission to attend the funeral of a relative does not involve the denial of a liberty interest protected by the Constitution. See Hicks v. New York State Department of Corrections, No. CV-84-3497, slip op. at 5-6 (E.D. N.Y. Nov. 30, 1984) (Altimari, J.); Wood-son v. Malcolm, No. 78 Civ. 1383 (CBM), slip op. (S.D.N.Y. Aug. 9,1980) (Motley, J.). In addition, plaintiff has made no allegation of intentional wrongful conduct. Therefore, even assuming that the actions of defendants were negligent, the complaint must be dismissed because there can be no recovery under section 1983 on the basis of negligence. See Daniels v. Williams, 474 U.S. 327, 335-36, 106 S.Ct. 662, 667-68, 88 L.Ed.2d 662 (1986).

For the reasons stated above, defendants’ motion to dismiss is granted and the complaint is dismissed.

It is SO ORDERED.

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681 F. Supp. 222, 1988 U.S. Dist. LEXIS 2040, 1988 WL 22419, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colon-v-sullivan-nysd-1988.

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