     08-4702-pr
     Montanez v. Cuoco, et al.



                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 22 nd day of January, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                         Chief Judge,
 8                ROBERT D. SACK,
 9                PETER W. HALL,
10                         Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       FELIX MONTANEZ,
14
15                    Plaintiff-Appellant,
16
17                    -v.-                                         08-4702-pr
18
19       CORRECTIONAL OFFICER CUOCO and
20       LIEUTENANT FISHER,
21
22                Defendants-Appellees.
23       - - - - - - - - - - - - - - - - - - - -X
24
25       APPEARING FOR APPELLANT:               Felix Montanez, pro se,
26                                              Suffield, CT.
27

                                                  1
 1   APPEARING FOR APPELLEES:    Lynn D. Wittenbrink, Assistant
 2                               Attorney General, for Richard
 3                               Blumenthal, Attorney General of
 4                               the State of Connecticut.
 5
 6        Appeal from a judgment of the United States District
 7   Court for the District of Connecticut (Kravitz, J.).
 8
 9        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
10   AND DECREED that the judgment of the district court be
11   AFFIRMED in part, VACATED in part, and REMANDED for further
12   proceedings consistent with this order.
13
14        Plaintiff-appellant Felix Montanez appeals from a
15   judgment of the United States District Court for the
16   District of Connecticut (Kravitz, J.) , which dismissed the
17   complaint pursuant primarily to Federal Rule of Civil
18   Procedure 12(b)(6). The complaint alleged, inter alia, that
19   prison officials denied Montanez access to the courts. We
20   assume the parties’ familiarity with the underlying facts,
21   the procedural history, and the issues presented for review.
22
23        The judgment from which Montanez appeals relied on a
24   July 28, 2008 order, which, inter alia, permitted Montanez
25   to “file a motion to reconsider (along with an Amended
26   Complaint)” by August 19, 2008 in order to (i) state a
27   retaliation claim, (ii) address any misconstructions of his
28   complaint by the district court, and (iii) provide any
29   information that would render viable his right-of-access
30   claim. Montanez failed to do so. Although Montanez moved
31   for and received an extension of time to file a notice of
32   appeal, there was no extension of the August 19, 2008
33   deadline for filing a motion to reconsider and an amended
34   complaint. Nevertheless, on September 19, 2008, Montanez
35   filed such documents along with his timely notice of appeal.
36   Because the notice of appeal ousted the district court of
37   jurisdiction, the court denied (without prejudice)
38   Montanez’s motions for reconsideration and to file an
39   amended complaint. Montanez did not appeal that ruling.
40   Accordingly, the new facts which Montanez sought to raise in
41   his amended complaint and raised in his appellate briefing
42   were never properly presented to the district court.
43
44        We will not consider those new facts here. “[I]ssues
45   raised for the first time on appeal will not be considered
46   unless consideration of the issue is necessary to avoid


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 1   manifest injustice or the issue is purely legal and requires
 2   no additional fact-finding.” Duamutef v. O’Keefe, 98 F.3d
 3   22, 25 (2d Cir. 1996); see also Leibowitz v. Cornell Univ.,
 4   445 F.3d 586, 592 n.4 (2d Cir. 2006) (per curiam).
 5   Montanez’s presentation of new facts suggests that the issue
 6   is not purely legal. Moreover, we see no manifest injustice
 7   given the district court’s explicit invitation for Montanez
 8   to file a motion for reconsideration and an amended
 9   complaint.
10
11        However, it appears likely that Montanez conflated the
12   two deadlines for filing the notice of appeal and the
13   amended complaint. In light of the leniency accorded to pro
14   se litigants, we hereby vacate and remand to the district
15   court to consider in the first instance whether it would be
16   appropriate to permit Montanez to now file an amended
17   complaint. Cf. Pabon v. Wright, 459 F.3d 241, 248 (2d Cir.
18   2006) (“We construe complaints filed by pro se litigants
19   liberally and interpret them to raise the strongest
20   arguments that they suggest.” (internal quotation marks and
21   citation omitted)). In particular, we focus on Montanez’s
22   attempt to plead a right-of-access claim and a retaliation
23   claim.
24
25        The district court concluded that Montanez failed to
26   state a right-of-access claim for two reasons. First, the
27   original complaint alleged only that unspecified “legal
28   papers” were confiscated; and he thus failed to plead that
29   “he was engaged in litigation to which the right of access
30   to courts extends.” The district court relied on
31   Lewis v. Casey, 518 U.S. 343 (1996), and Friedl v. City of
32   New York, 210 F.3d 79 (2d Cir. 2000), for the proposition
33   that inmates have a right of access to the courts that is
34   limited to “direct appeals from their convictions, petitions
35   for writ of habeas corpus and actions challenging the
36   conditions of their confinement.” In the context of the
37   state’s affirmative obligation to provide resources (such as
38   a prison law library or legal assistance program) and
39   thereby incur expenses, these cases support such a
40   limitation. See Lewis, 518 U.S. at 355 (evaluating the
41   adequacy of prison law library facilities and legal
42   assistance programs, the right of access to the courts
43   requires states to provide “[t]he tools . . . that the
44   inmates need in order to attack their sentences, directly or
45   collaterally, and in order to challenge the conditions of
46   their confinement”); Friedl, 210 F.3d at 86-87 (relying on
47   Lewis to permit “an administrative challenge by a prisoner

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 1   to the conditions of his confinement”); see also Monsky v.
 2   Moraghan, 127 F.3d 243, 246 (2d Cir. 1997) (“[T]he right of
 3   access may include affording prisoners who are preparing
 4   legal papers adequate law libraries or adequate assistance
 5   from persons trained in the law, at least for those
 6   challenging their sentences or the conditions of
 7   confinement.” (internal quotation marks and citations
 8   omitted)).
 9
10        However, there is at least a question as to whether an
11   inmate’s right of access to the courts is so confined in the
12   context of interference--as in this case, where a prison
13   guard allegedly confiscated an inmate’s legal documents.
14   See, e.g., Bourdon v. Loughren, 386 F.3d 88, 93 & n.8 (2d
15   Cir. 2004) (recognizing that the right of access to the
16   courts “ensur[es] that all citizens have the right to sue
17   and defend in the courts,” and that for prisoners “defending
18   against criminal charges, challenging convictions and
19   sentences, and raising civil rights claims about the
20   conditions of their confinement,” the right-of-access has a
21   “particular application” which additionally requires the
22   provision of the necessary “tools” (internal quotation
23   marks, citations, and brackets omitted)); Morello v. James,
24   810 F.2d 344, 347 (2d Cir. 1987) (discussing the state’s
25   “obligation [to] provid[e] a prisoner access to the legal
26   resources necessary to prepare” an appeal of his criminal
27   convictions, and the state’s separate obligation not to
28   deprive a prisoner of his legal papers (regardless of the
29   subject of the litigation) because such “intentional
30   obstruction of a prisoner’s access to the courts is
31   precisely the sort of oppression that the Fourteenth
32   Amendment and section 1983 are intended to remedy”); id. at
33   346-47 (“The right of access to the courts is substantive
34   rather than procedural. Its exercise can be shaped and
35   guided by the state, but cannot be obstructed, regardless of
36   the procedural means applied.” (internal citations
37   omitted)); Michael B. Mushlin, Rights of Prisoners § 12.6
38   (3d ed. 2002) (“Even though these courts do not recognize a
39   right to state-sponsored assistance of access for civil
40   matters not connected with conditions of confinement, this
41   does not mean that prison officials may obstruct inmates
42   from bringing such claims or retaliate against them if they
43   do.”). Given this question, the district court may seek to
44   assign pro bono counsel to represent Montanez on remand.
45
46        Second, the district court determined that Montanez did
47   not allege actual injury. “In order to establish a

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 1   violation of a right of access to courts, a plaintiff must
 2   demonstrate that a defendant caused actual injury, i.e.,
 3   took or was responsible for actions that hindered a
 4   plaintiff’s efforts to pursue a legal claim.” Monsky, 127
 5   F.3d at 247 (internal quotation marks, citations, and
 6   brackets omitted). The original complaint alleged only that
 7   unspecified “legal papers” were confiscated. Montanez
 8   alleged in his appellate briefing that the confiscated legal
 9   documents “include[], but were not limited to, exhibits,
10   proofs, pleadings in the development, applications,
11   administrative remedies (and their responses), personal and
12   confidential information pertaining to a medical malpractice
13   action, visitation rights[] action, and matters relating to
14   the benefit and well-being of Plaintiff’s three (3) children
15   in [Department of Children and Families] custody.” Montanez
16   further alleges that some of the allegedly confiscated
17   documents were the “only copies of supporting evidentiary
18   exhibits.” He explained that the alleged confiscation
19   “caused him to lose standing . . . because [he] was unable
20   to meet filing time requirements as mandated by statutory
21   civil procedure,” he “could not pursue matters in
22   litigation,” and “his actions were dismissed.” We do not
23   decide whether these new facts plead actual injury. If the
24   district court allows Montanez to file an amended complaint,
25   it should evaluate whether these new facts (and any other
26   facts that Montanez may add) sufficiently allege that
27   defendants-appellants’ actions hindered Montanez’s efforts
28   to pursue a legal claim.
29
30        In his appellate briefing, Montanez seeks to raise a
31   retaliation claim. If the district court allows Montanez to
32   file an amended complaint, it should evaluate whether
33   Montanez sufficiently pleads a retaliation claim.
34
35        Following de novo review of the record of the
36   proceedings before the district court and Montanez’s
37   contentions on appeal, we find no merit in Montanez’s
38   remaining arguments and affirm all other aspects of the
39   district court’s decision. We hereby AFFIRM in part, VACATE
40   in part, and REMAND for further proceedings consistent with
41   this order.
42
43                              FOR THE COURT:
44                              CATHERINE O’HAGAN WOLFE, CLERK
45



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