The opinion of the court was delivered by: Chief Magistrate Judge Susan Paradise Baxter
On May 7, 2008, Plaintiff, a prisoner filed the instant action pro se. Plaintiff has named Greg Hull, a Correctional Officer, and Deputy Warden Vincent Kinnane, both of the Erie County Prison, as Defendants to this action.
In his short complaint, Plaintiff alleged that on April 30, 2008, First of all I put a request slip in to ask the counselor for a greviance [sic] which read could I have a greviance [sic] about the shit they fed us the day before the food they served us was not cooked all the way so I was called up to desk and he told me I could not recive [sic] a greviance [sic] and so I told I was going to go to his supervisor so he decided to give me a misconduct ticket. And then I went to ask why was our mail being held and he would not commit so I asked for another grivance [sic] which was denid [sic]. So I had wife call the Warden Kinnane and she informed him as to what was going. And he stated to her he did not care.
Document, # 7, Complaint (in its entirety). Plaintiff claims that Defendants have violated his "due process of law prisoners rights to a grievance." Id. As relief, Plaintiff seeks monetary damages, as well as the "grievance procedure fixed." Id.
In a later filing, Plaintiff expanded upon the allegations of his complaint and summarized his claims as:
a. Plaintiff contends that the Defendants violated his First Amendment right to free speech when they retaliated and confined Plaintiff in his cell for eight (8) hours after he requested a grievance to complain about the inedible food he was served.
b. Plaintiff alleges that his Fourteenth Amendment due process rights were violated when the Defendants imposed upon him an eight (8) hour period of lock-down in his cell.
c. Plaintiff contends that the Defendants violated his Eighth Amendment right to decent conditions in prison when they served him food that was inedible.
d. Plaintiff contends that the Defendants violated his First Amendment right to access to the courts by rejecting legal correspondence that was mailed to him; and
e. Plaintiff alleges that his First Amendment and Fourteenth Amendment rights were violated by the Erie County Prison's handling of mail.
Document # 28, Plaintiff's Brief in Opposition to Defendants' Motion to Dismiss, pages 3-4.
This Court has liberally construed Plaintiff's filings to encompass five claims: 1) Plaintiff claims that he was retaliated against after he requested a grievance in order to complain about the poor quality of the prison food; 2) Plaintiff claims the punishment of eight hours of cell confinement violated his due process rights; 3) Plaintiff claims the denial of a grievance process violates his constitutional rights; 4) Plaintiff claims that the poor quality of the food violates his Eighth Amendment rights; and 5) Plaintiff claims that his mail was mishandled thereby restricting his access to the courts in violation of his First and Fourteenth Amendment rights.
In an Opinion and Order issued June 4, 2009, this Court dismissed the Eighth Amendment claims, the denial of grievance form claim, the mishandling of mail claim and the access to courts claims. Defendants motion for a more definite statement was granted and Plaintiff was ordered to file an amended complaint before Jun 19, 2009 to more fully allege his procedural due process and retaliation claims. Document # 33. This Order warned that Plaintiff's failure to comply would result in the dismissal of this action for failure to prosecute.
By Order dated September 15, 2009 Plaintiff was directed to show cause for his failure to file an amended complaint before September 25, 2009. Document # 37. This Order again warned that the failure to comply would result ...