THÉRÈSE WILEY DANCKS, Magistrate Judge.
Pro se Plaintiff Jamal Salaam Bey, a/k/a Raymond Davis, an inmate in the custody of the New York Department of Corrections and Community Supervision ("DOCCS") and housed at Great Meadow Correctional Facility ("Great Meadow"), commenced this civil rights action pursuant 42 U.S.C. § 1983 on July 11, 2014. (Dkt. No. 1.) Plaintiff originally brought suit only against DOCCS, claiming that because he is Moorish, neither the United States nor New York State have jurisdiction over him, and that he had been unlawfully stolen and was illegally confined by DOCCS and forced into slavery. Id. Plaintiff's original complaint was construed as alleging a claim under the First Amendment Free Exercise Clause for failing to allow Plaintiff to freely practice his Muslim faith. Id. Plaintiff's claims were all dismissed upon initial review pursuant to 28 U.S.C. §§ 1915(e) and 1915A, and Plaintiff was granted leave to serve an amended complaint with regard to the claims dismissed without prejudice. (Dkt. No. 7 at 15.)
On January 15, 2015, Plaintiff filed an amended complaint, which is the operative pleading in the action. (Dkt. No. 11.) Upon initial review, two newly named defendants and all of the claims in Plaintiff's amended complaint were dismissed except for Plaintiff's First Amendment retaliation claims against newly named Defendants Ms. Karen Johns ("Johns") and Ms. Murphy ("Murphy"), teachers at Great Meadow, and a Fourteenth Amendment claim against newly named Defendant Christopher Miller ("Miller"), Superintendent at Great Meadow. (Dkt. No. 13 at 8-9.
Remaining Defendants Johns, Murphy, and Miller have now moved for summary judgment. (Dkt. No. 27.) Plaintiff has opposed the motion, and Defendants have filed a reply. (Dkt. Nos. 35
Plaintiff was housed at Great Meadow during the January 2014 through December 2014 time period relevant to his claims. (Dkt. No. 11 at 2, 4.) According to Johns, a teacher at Great Meadow during the summer of 2014, Plaintiff was assigned to her classroom in July 2014 as a part of his mandatory program assignment and failed to attend class on July 17, 2014. (Dkt. No. 27-8 at ¶¶ 1, 4-5.) Green Meadow security personnel located Plaintiff in the law library and directed him to class. Id. at ¶ 6; Dkt. No. 27-3 at 22.
Plaintiff claims that he did not have a program card assigning him to school at the time, and he had been in the law library working on an appeal. (Dkt. No. 27-3 at 22.) Plaintiff does not believe he was ever properly assigned to a school program. Id. at 19. Plaintiff testified at his deposition that he had never been to class prior to July 17, 2014, and had not previously met Johns. Id. at 23, 35.)
When Plaintiff entered Johns' classroom, she directed him to take a seat. (Dkt. No. 27-8 at ¶ 7.) According to Johns, Plaintiff turned and faced her and yelled "I won't do anything" at her in front of the inmates in class, causing a disturbance among the students. Id. at ¶ 8. Johns ordered Plaintiff to go sit on the bench outside of the classroom with Officer Nitche ("Nitche") and told Nitche that Plaintiff had yelled and disrupted her class. Id. at ¶¶ 9-10. Plaintiff claims that Johns was belligerent and acted "real hostile" towards him. (Dkt. No. 27-3 at 23.)
Johns issued a misbehavior report on Plaintiff regarding the July 17, 2014, incident charging him with 102.10 threats; 109.10 out of place; 104.13 creating a disturbance; 106.10 refusing a direct order; and 107.10 interference with employees Id. at ¶ 11; Dkt. No. 26-6 at 7. Bey was put in keeplock. (Dkt. No. 26-6 at 8.) Plaintiff plead not guilty to the charges at his Tier II hearing. Id. at 10. Following the hearing, Plaintiff was found guilty of 104.13 creating a disturbance and 107.10 interference with employee. He was found not guilty on the remaining charges in the misbehavior report. Id. at 14. The penalty imposed by the hearing officer included thirty days in keeplock and corresponding loss of various privileges. Id.
Murphy is a teacher at Great Meadow. (Dkt. No. 27-9 at ¶ 1.) According to Murphy, Plaintiff was enrolled in her class at Great Meadow on September 29, 2014, as a part of his mandatory program assignment. Id. at ¶ 4. Plaintiff did not attend class on September 29, 2014, and was reported to be "in cell/AWOL." Id. at ¶ 5. Plaintiff did not attend class on September 30, 2014, October 1, 2014, and October 3, 2014, and was reported to be in the law library. Id. at ¶ 6. On October 6, 2014, Plaintiff again failed to attend class and was reported to be "in cell/AWOL." Id. at ¶ 7. Murphy wrote a misbehavior report on Plaintiff on October 6, 2014, for 109.10 being out of place. Id. at ¶ 9; Dkt. No. 27-7 at 10. Murphy had never met Plaintiff at the time she wrote the misbehavior report. (Dkt. No. 27-9 at ¶ 9.) Plaintiff was found guilty of the charge at his Tier II hearing, and a penalty of thirty days in keeplock and corresponding loss of various privileges was imposed. (Dkt. No. 27-7 at 17.)
Plaintiff has sued Great Meadow Superintendent Miller for failing to overturn the determinations of guilt on the Tier II hearings held on the misbehavior reports issued by Johns and Murphy. (Dkt. Nos. 11 at 7; 27-3 at 51-52; 35-1 at 7-9.) Miller has stated in his Declaration that he did not review Plaintiff's appeal or participate in the review or affirmance of the hearing officers' determinations in either of the two Tier II hearings. (Dkt. No. 27-5 at ¶¶ 10, 17.) The appeals from the Tier II hearing determination on Johns' July 17, 2014, and Murphy's October 6, 2014, misbehavior reports were referred by Miller's office to Captain Zazistaski ("Zazistaski") for review and determination. (Dkt. Nos. 27-5 at 8, 15; 27-6 at 2; 27-7 at 12.) Zazistaski affirmed the hearing determinations on the two misbehavior reports. (Dkt. Nos. 27-5 at ¶¶ 9, 16; 27-6 at 1; 27-7 at 1.)
Summary judgment may be granted only if the submissions of the parties taken together "show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating that genuine issues of material fact exist. Salahuddin, 467 F.3d at 272-73. The nonmoving party must do more than "rest upon the mere allegations . . . of the [plaintiff's] pleading" or "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). "Conclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).
A party opposing summary judgment is required to submit admissible evidence. See Spiegel v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) ("It is well established that in determining the appropriateness of a grant of summary judgment, [the court] . . . may rely only on admissible evidence.") (citation and internal quotation marks omitted). In Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005), the Second Circuit reminded that on summary judgment motions "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." "At the summary judgment stage, a nonmoving party must offer some hard evidence showing that its version of the events is not wholly fanciful." Id. (citation and internal quotation marks omitted). A plaintiff's verified complaint is to be treated as an affidavit.
In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). Where a party is proceeding pro se, the court is obliged to "read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However, "a pro se party's `bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, No. 93 Civ. 5981 (WHP) (JCF), 1999 WL 983876 at *3 (S.D.N.Y. Oct. 28, 1999)
Plaintiff has failed to respond to Defendants' Statement Pursuant to L.R. 7.1(a)(3) setting forth the material facts as to which Defendants assert no genuine issue of fact exists. (See generally Dkt. Nos. 28, 34, 35-1.) L.R. 7.1(a)(3) provides that "
While pro se litigants are undeniably "entitled to some measure of forbearance when defending against summary judgment motions, the deference owed to pro se litigants . . . does not extend to relieving them of the ramifications associated with the failure to comply with the courts local rules." Liberati v. Gravelle, No. 12-CV-00795 (MAD/DEP), 2013 WL 5372872, at * 7 (N.D.N.Y. Sept. 24, 2013) (quoting Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)); Latouche v. Tompkins, No. 09-CV-0308 (NAM), 2011 WL 1103045, at * 1 (N.D.N.Y. Mar. 23, 2911) ("a pro se litigant is not relieved of his duty to meet the requirements necessary to defeat a summary judgment motion").
Where, as in this case, a party has failed to respond to the movant's statement of material facts in the manner required under L.R. 7.1(a)(3), the facts in the movant's statement will be accepted as true (1) to the extent they are supported by evidence in the record, and (2) the nonmovant, if proceeding pro se, has been specifically advised of the possible consequences of failing to respond to the motion. See Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d. Cir. 2004) ("[I]n determining whether the moving party has met his burden of showing the absence of a genuine issue for trial, the district court may not rely solely on the statement of undisputed facts in the moving party's [Statement of Material Facts]. It must be satisfied that the citation to evidence in the record supports the assertion.") (citations omitted); Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996) (requirement that pro se be advised of possible consequences of failing to respond to summary judgment motion, including movant's statement of material facts pursuant to local rules); L.R. 56.2 ("Notice to Pro Se Litigants of the Consequences of Failing to Respond to a Summary Judgment Motion").
Courts in this district have found it appropriate to enforce L.R. 7.1(a)(3) and its predecessor L.R. 7.1(f), by deeming facts set forth in a statement of material facts not in dispute to have been admitted based upon the opposing party's failure to properly respond to the statement. See, e.g., Borihane v. Outhouse, No. 9:05-CV-1256 (NAM/DEP), 2007 WL 2071698, at * 3 (N.D.N.Y. July 18, 2007) (following L.R. 7.1(a)(3) and accepting statement of material facts as uncontroverted) (citing Elgamil v. Syracuse Univ., No. 99-CV-611 (NPM/GLS), 2000 WL 1264122, at * 1 (N.D.N.Y. Aug. 22, 2000) (listing cases)). The Court recommends that notwithstanding Plaintiff's pro se status, the District Court follow the practice of enforcing L.R. 7.1(a)(3) and accept the facts set forth in Defendants' Material Statement of Facts as uncontroverted to the extent supported by record evidence.
One of the grounds on which Defendants Johns and Murphy seek summary judgment is Plaintiff's failure to exhaust his administration remedies with regard to the retaliation claims he has asserted against them. (Dkt. No. 27-1 at 9-11.)
Under the Prison Litigation Reform Act ("PLRA"), "[n]o action shall be brought with respect to prison conditions under section 1983 . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002).
In order to properly exhaust administrative remedies under the PLRA, inmates are required to complete the administrative review process in accordance with the rules applicable to the particular institution to which they are confined. Jones v. Bock, 549 U.S. 199, 218 (2007) (citing Woodford v. Ngo, 548 U.S. 81, 88 (2006)). In New York state prisons, DOCCS has a well-established three-step inmate grievance program. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5 (2013).
Generally, the DOCCS Inmate Grievance Program ("IGP") involves the following procedure for the filing of grievances. First, an inmate must file a complaint with the facility's IGP clerk within twenty-one calendar days of the alleged occurrence. Id. at § 701.5(a) (2010). A representative of the facility's inmate grievance resolution committee ("IGRC") has sixteen calendar days from receipt of the grievance to informally resolve the issue. Id. at § 701.5(b)(1). If there is no such informal resolution, the full IGRC conducts a hearing within sixteen calendar days of receipt of the grievance (Id. at § 701.5(b)(2)), and issues a written decision within two working days of the conclusion of the hearing. Id. at § 701.5(b)(3).
Second, a grievant may appeal the IGRC decision to the facility's superintendent within seven calendar days of receipt of the IGRC's written decision. Id. at § 701.5(c)(1). If the grievance involves an institutional issue (as opposed to a DOCCS-wide policy issue), the superintendent must issue a written decision within twenty calendar days of receipt of the grievant's appeal. Id. at § 701.5(c)(3)(ii). Grievances regarding DOCCS-wide policy issues are forwarded directly to the central office review committee ("CORC") for a decision under the process applicable to the third step. Id. at § 701.5(c)(3)(i).
Third, a grievant may appeal to CORC within seven working days of receipt of the superintendent's written decision. Id. at 701.5(d)(1)(i). CORC is to render a written decision within thirty calendar days of receipt of the appeal. Id. at 701.5(d)(3)(ii). If a prisoner has failed to properly follow each of the applicable steps prior to commencing litigation, he has failed to exhaust his administrative remedies. Woodford, 548 U.S. at 93. Because failure to exhaust is an affirmative defense, defendants bear the burden of showing by a preponderance of the evidence that a plaintiff has failed to exhaust his available administrative remedies. See Murray v. Palmer, No. 9:03-CV-1010 (GTS/GHL), 2010 WL 1235591, at *4 (N.D.N.Y. Mar. 31, 2010); Bailey v. Fortier, No. 09-CV-0742 (GLS/DEP), 2012 WL 6935254, at *6 (N.D.N.Y. Oct. 4, 2012) (the party asserting failure to exhaust bears the burden of proving its elements by a preponderance of the evidence).
A prisoner's failure to exhaust, however, does not end a court's exhaustion review. For more than ten years, courts in this district were guided by the Second Circuit's decision in Hemphill v. New York. 380 F.3d 680, 686 (2d Cir. 2004). Under Hemphill, the Second Circuit established a three-part inquiry to determine whether, inter alia, a plaintiff's failure to exhaust available administrative remedies could nevertheless be justified by "special circumstances."
Id. at 1854-55. (internal citation omitted).
The Supreme Court rejection of the "special circumstances" exception still, however, does not end a court's review "because the PLRA contains its own, textual exception to mandatory exhaustion." Id. at 1858. Under the PLRA, "the exhaustion requirement hinges on the `availab[ility]' of administrative remedies: An inmate, that is, must exhaust available remedies, but need not exhaust unavailable ones." Id. Thus, courts are still tasked with determining whether or not a prisoner's administrative remedies are, in fact "available."
To guide courts in this analysis, the Supreme Court identified "three kinds of circumstances" in which an administrative remedy, "although officially on the books," is not "available." Id. at 1853. First, "an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end with officers unable or consistently unwilling to provide any relief to aggrieved inmates." Id. "Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use." Id. at 1853-54. Finally, an administrative remedy is not "available" when "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id.
Defendants assert that Plaintiff filed five grievances while incarcerated at Great Meadow. (Dkt. Nos. 28 at ¶ 42.) Defendants' record evidence shows that Plaintiff filed the following grievances in 2014: Grievance No. 57,344-14, dated February 19, 2014, complaining of tooth pain (Dkt. No. 27-4 at 15); Grievance No. 57,537-14, dated Match 17, 2014, complaining of medical indifference regarding his hearing, id. at 20; Grievance No. 57,546-14, dated March 29, 2014, complaining of being pat frisked while working in the mess hall, id. at 32; and Grievance No. 57,895-14, dated June 15, 2014, complaining of unnecessary cell search and excessive cruel and unusual punishment. Id. at 57.
The grievance records submitted by Defendants show that Plaintiff's Grievance No. 58, 975-15, although dated January 8, 2014, was filed on January 9, 2015, and appears to refer to an incident that occurred on January 5, 2015, in which Plaintiff was taken from the law library to a class for which he had not been authorized. (Dkt. No. 27-4 at 2.) Plaintiff complained in the grievance that he had not had a program card for three weeks and an unidentified male had attempted to give him a program care without proper authority. Id. at 4. Plaintiff claimed not to need school and asked to go before the Program Committee. Id. Plaintiff's January 21, 2015, note signing off on the grievance states "I have a date to be seen by the Program Committee." Id. at 3.
In his opposition to Defendants' motion, Plaintiff submitted a grievance complaint form, dated July 17, 2014, in which he complains of retaliation by the same female school teacher against whom he had filed a grievance three weeks earlier. (Dkt. No. 34 at 1.) Plaintiff has not submitted evidence regarding the filling or resolution of the grievance, and there is no evidence in the record showing the filing by Plaintiff of a grievance against a school teacher three weeks earlier. According to Defendants, the grievance was not filed with the IGP at Great Meadow, and Plaintiff did not produce the grievance during the course of discovery. (Dkt. No. 36 at ¶ 8.)
Even if Plaintiff had filed the grievance submitted with his opposition papers, or any grievance at all, against Johns and Murphy, he did not exhaust his administrative remedies under the PLRA. Defendants have submitted the results of a record search by the Assistant Director of the Inmate Grievance Program for DOCCS which establishes that Plaintiff has not appealed any facility level grievances to CORC. (Dkt. No. 27-10 at ¶¶ 1, 8-12.) Based upon the foregoing, the Court finds that Plaintiff has failed to exhaust his administrative remedies with regard to his retaliation claims against Johns and Murphy. See Woodford, 548 U.S. at 93 (in order to exhaust his administrative remedies, a prisoner must properly follow each of the applicable steps of the DOCCS IGP, including an appeal to CORC, prior to commencing litigation).
Furthermore, the summary judgment record is devoid of evidence raising a genuine issue of fact with regard to whether the administrative remedies under the IGP were "available" to Plaintiff. See Ross, 136 Sup. Ct. at 1858. There is no evidence that the DOCCS IGP operates as a "simple dead end," id.; no evidence that the provisions of the IGP relevant to the grievance process to be followed by Plaintiff were "so opaque" as to be practically speaking incapable of use, id. at 1853-54; and no evidence that prison administrators thwarted Plaintiff from taking advantage of the IGP.
Plaintiff claims that Defendants Johns and Murphy filed false misbehavior reports against him in retaliation for grievances he had filed with regard to his participation in the school program. (Dkt. Nos. 27-3 at 35, 46-48; 35-1 at 10, 14, 16
To prevail on a First Amendment retaliation claim, an inmate must establish "(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) there was a causal connection between the protected speech [or conduct] and the adverse action." Holland v. Goord, 758 F.3d 215, 225 (2d Cir. 2014) (quoting Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009); see also Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004) (quoting Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001), overruled on other grounds, Swierkiewicz v. Sorema, 534 U.S. 506, 508 (2002)). "Adverse action" for purposes of a retaliation claim has been defined objectively as "retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising . . . constitutional rights." Pidlypchak, 389 F.3d at 381. Otherwise, the retaliatory act is simply de minimis and outside the scope of constitutional protection. See Roseboro v. Gillespie, 791 F.Supp.2d 353, 370 (S.D.N.Y. 2011) (citing Dawes, 239 F.3d at 292-93).
An inmate bears the burden of showing that "the protected conduct was a substantial or motivating factor" in the defendants' decision to take action against the plaintiff. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). In evaluating whether a causal connection exists between the plaintiff's protected activity and a prison official's actions, "a number of factors may be considered, including: (i) the temporal proximity between the protected activity and the alleged retaliatory act; (ii) the inmate's prior good disciplinary record; (iii) vindication at a hearing on the matter; and (iv) statements by the defendant concerning his or her motivation." Baskerville v. Blot, 224 F.Supp.2d 723, 732 (S.D.N.Y. 2002) (citing Colon, 58 F.3d at 873). "The causal connection must be sufficient to support an inference that the protected conduct played a substantial part in the adverse action." Id. A showing of temporal proximity, without more, has generally been found insufficient to survive summary judgment. See Roseboro, 791 F. Supp. 2d at 370 (citations omitted).
Because of the relative ease with which claims of retaliation can be incanted, courts have scrutinized retaliation claims with particular care. See Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983), overruled on other grounds, Swierkiewicz, 534 U.S. 506. As the Second Circuit has noted,
Dawes, 239 F.3d at 491. Accordingly, claims of retaliation must be supported by specific and detailed facts; conclusory statements are not sufficient. Flaherty, 713 F.2d at 13; see also Houston v. Goord, No. 9:03-CV-1412 (GTS/DEP), 2009 WL 890658, at * 11 (N.D.N.Y. March 31, 2009) ("Analysis of retaliation claims . . . requires thoughtful consideration of the evidence presented concerning the protected activity in which the inmate has engaged and the adverse action taken against him or her, as well as the evidence tending to link the two. When such claims, which ordinarily are exceedingly case specific, are alleged in conclusory fashion, and are not supported by evidence establishing the requisite nexus between any protected activity and the adverse action complained of, the entry of summary judgment dismissing plaintiff's retaliation claims is warranted.").
Even if a plaintiff makes the appropriate showing of retaliation, a defendant may avoid liability if he demonstrates that he would have taken the adverse action even in the absence of the protected conduct. See Scott v. Coughlin, 344 F.3d 282, 287-88 (2d Cir. 2003) ("Regardless of the presence of retaliatory motive, . . . a defendant may be entitled to summary judgment if he can show . . . that even without the improper motivation the alleged retaliatory action would have occurred.") (citation omitted); Roseboro, 791 F. Supp. 2d at 371.
Plaintiff claims that Johns and Murphy filed false misbehavior reports against him in retaliation for filing grievances. The filing of grievances has been found to constitute protected First Amendment conduct for purposes of a retaliation claim. See Davis v. Goord, 320 F.3d 346, 352-53 (2d Cir. 2003) ("the filing of prison grievances is a constitutionally protected activity" for purposes of a retaliation claim). In addition, the filing a false misbehavior report can be adverse action for retaliation purposes. Gill, 389 F.3d at 384.
Plaintiff's retaliation claims against Johns and Murphy fail, however, on the issue of causation. In her Declaration, Johns has stated that at the time she prepared the misbehavior report on July 17, 2014, she was unaware of any grievances filed by Plaintiff. (Dkt. No. 27-8 at ¶ 12.) Johns has asserted that the misbehavior report was based solely upon the events of July 17, 2014, and not in retaliation for any actions taken by Plaintiff at any other time. Id. at ¶ 13.
In addition, although the July 17, 2014, grievance against a female teacher submitted by Plaintiff in opposition to Defendants' motion (Dkt. No. 34 at 1) references a grievance against the same teacher three weeks earlier, evidence submitted by Defendants shows that no grievances relating to the school program were filed by Plaintiff until July 9, 2015. (Dkt. No. 27-4 at 2.) At his deposition, Plaintiff testified that he had never met Johns prior to the day he was called to her classroom. (Dkt. No. 27-3 at 35.) He also testified that he had not written a grievance regarding school prior to the incident with Johns on July 17, 2014. Id. at 36.
Based upon the record evidence, Plaintiff did not file a grievance against Johns prior to the issuance of the misbehavior report on July 17, 2014, thus negating the possibility that the filing of a grievance was "a substantial or motivating factor" in Johns' filing the misbehavior report, Graham, 89 F.3d at 79, and entitling Johns to summary judgment on Plaintiff's retaliation claim.
Murphy has stated in her Declaration that she had not met Plaintiff at the time she issued a misbehavior report against him on October 6, 2014, and she was unaware of any grievances filed by Plaintiff. (Dkt. No. 27-9 at ¶¶ 9-10.) According to Murphy, her misbehavior report was based solely upon Plaintiff's failure to attend class on October 6, 2014, and during the previous week and not in retaliation for any action by Plaintiff prior to that time. Id. at ¶ 11. Plaintiff testified at his deposition that he had never met Murphy prior to October 6, 2014. (Dkt. No. 27-3 at 51.)
Contrary to Plaintiff's conclusory assertion that Murphy filed the misbehavior report in retaliation for grievances he had filed against her (Dkt. No. 35-1 at 10, 14, 16), DOCCS grievance records reveal that Plaintiff filed no grievance against Murphy or anyone else regarding the school program prior to her issuance of the misbehavior report. (Dkt. Nos. 27-2 at ¶ 4; 27-4 at 1-77.) Moreover, since Plaintiff admittedly did not know Murphy prior to issuance of the misbehavior report, there is no evidentiary support for Plaintiff's conclusory claim.
In sum, based upon the foregoing, the Court finds that even if Plaintiff had been found to have exhausted his administrative remedies or been excused from doing so, Johns and Murphy would be entitled to summary judgment on Plaintiff's retaliation claims because no reasonable jury could conclude from the evidence that the filing of grievances by Plaintiff was a substantial motivating factor in the issuance of the misbehavior reports. See Jeffreys, 426 F.3d at 554 (in order to avoid summary judgment, "there must be evidence on which the jury could reasonably find for the plaintiff").
Plaintiff has alleged a Fourteenth Amendment denial of due process claim against Superintendent Miller for failing to overturn the determinations of guilt against Plaintiff at the Tier II hearings on the misbehavior reports issued by Johns and Murphy. (Dkt. No. 27-3 at 51-52.) Miller has stated in his Declaration that Plaintiff's appeals from the hearing officer's determination of guilt and imposition of penalties on the Johns and Murphy misbehavior reports were forwarded to Zazistaski for review and determination, and that Miller himself did not review the appeals or participate in the review or affirmation of the hearing officer's determinations or penalties. (Dkt. No. 27-5 at ¶¶ 8-10, 15-17.) According to Miller, it was Zazistaski who affirmed the hearing officer's determinations and penalties. Id. at ¶¶ 9, 16. Miller's statements are supported by record evidence. (See Dkt. Nos. 27-5 at 8, 15; 27-6 at 1-2; 27-7 at 1,12.)
To be held liable for a constitutional violation under § 1983, a defendant must have had the requisite amount of personal involvement in the violation. Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). Supervisory officials may not be held liable merely because they hold a position of authority. Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). Moreover, "a supervisory official . . . cannot be held liable under section 1983 solely for the acts of his subordinates." Friedland v. Otero, Civil No. 3:11cv606 (JBA), 2014 WL 1247992, at * 9 (D. Conn. Mar. 25, 2014) (citing Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985)). The Second Circuit has held that personal involvement by a supervisor necessary to state a claim under § 1983 may be found where: "(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring." Colon, 58 F.3d at 873.
A supervisory official has no personal involvement for purposes of § 1983 when his involvement was limited to forwarding Plaintiff's "disciplinary appeals . . . to other staff members." Pilgrim v. Artus, No. 9:07-CV-1001 (GLS/RFT), 2010 WL 3724883, at * 7 (N.D.N.Y. Mar. 18, 2010); see also Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997) (holding that referral of appeals down the chain of command does not create personal involvement on the part of the referee); Brown v. Goord, No. 9:04-CV-0785 (TJM/GHL), 2007 WL 607396, at * 10 (N.D.N.Y. Feb. 20, 2007) (citing cases for the proposition that a supervisor may "delegat[e] to high-ranking subordinates the responsibility to read and respond to . . . complaints by prisoners" without becoming personally involved).
The Court finds, based upon the evidence in the record, that Miller had no personal involvement in the review and determination of Plaintiff's appeals and is entitled to summary judgment on Plaintiff's Fourteenth Amendment claim. Therefore, the Court recommends that summary judgment be granted in Miller's favor.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court.
Hancock Estabrook LLP, Michael J. Sciotti, Esq., Robert
Thorpe, Esq., of Counsel, Syracuse, NY, for Plaintiff.
Hon. Richard S. Hartunian, United States Attorney, Charles E. Roberts, Esq., Assistant U.S. Attorney, of counsel, Syracuse, NY, for Defendant.
DAVID E. PEEBLES, United States Magistrate Judge.
Currently at the forefront of the action is the threshold question of whether Bailey, who admits that he did not file a grievance following the procedures in place at Bureau of Prisons ("BOP") facilities, should be excused from the requirement of exhausting administrative remedies before commencing suit due to the alleged refusal of prison officials to provide him with the forms necessary to file a grievance. Because I find, based upon an evidentiary hearing conducted, that Bailey was not prevented by the actions of prison officials from filing a grievance regarding his claim against Fortier, and that he has offered no special circumstances providing a basis to excuse his failure to exhaust administrative remedies, I recommend that his complaint be dismissed on this procedural basis, without addressing its merits.
Bailey is a federal prison inmate currently being held in the custody of the BOP as a result of a 2007 criminal conviction entered in the United States District Court for the Eastern District of Pennsylvania. See generally Complaint (Dkt. No. 1); see also Van Weelden Decl. (Dkt. No. 10-4) ¶ 5; June 20, 2012 Hearing Transcript (Dkt. No. 44) at p. 84.
On the morning of February 23, 2009, while housed in a six-person cell in the Mohawk Housing Unit at FCI Ray Brook, Bailey was confronted and physically assaulted by one of his cellmates after being accused of stealing that inmate's prayer oil. Complaint (Dkt. No. 1) ¶¶ 8-9; see also Van Weelden Decl. (Dkt. No. 10-4) Exh. D. Bailey reported the incident to Fortier, and requested that he be moved to another cell. Complaint (Dkt. No. 1) ¶ 10. That request was denied, and Bailey was directed by Fortier to return to his cell in light of an impending inmate count. Id. at ¶ 11.
Following the inmate count, Bailey again was accosted by the same inmate, who on this occasion threw hot oil from a ceramic mug onto his face.
If the complaint cannot be resolved informally, the inmate may next submit a formal written Administrative Remedy Request ("ARR") to the warden of the facility, utilizing a BP-9 form, within twenty calendar days of the event that generated the inmate's complaint.
Despite the existence of the ARP, Bailey did not avail himself of that process by filing a grievance regarding the assault or the defendant's alleged failure to protect him from it. Tr. 101-02, 106. Bailey claims that he requested the appropriate forms for commencing the grievance process from several prison workers, including Hawley Snyder, Barbara Darrah, and the warden at FCI Ray Brook. Tr. 86-88, 91, 93-95, 107-09. Employees at FCI Ray Brook, however, uniformly testified that Bailey never requested the appropriate grievance forms from them. See Tr. 72, 131, 146-47, 153, 155, 168; see also Tr. 49 (Robin Van Weelden); 161 (Jean Marie Diehl); 166 (Michelle Gonyea). I credit the testimony of defendant's witnesses and find that Bailey failed to ask his corrections counselor, or any other BOP employee at FCI Ray Brook, for the necessary forms to commence the grievance process.
The record also reflects that Bailey had abundant opportunity to secure the necessary grievance forms. In February and March of 2009, he was assigned a unit team that included Barbara Darrah, his unit manager; Michelle Gonyea, a case worker; Hawley Snyder, his assigned corrections counselor; and one other corrections counselor.
Despite all of those visits and requests as to whether he needed anything, Bailey did not ask any of those individuals for the forms necessary to grieve Fortier's alleged failure to protect him from harm. Tr. 161-62, 166, 49-50, 72, 132, 144, 154-55, 161, 166.
As previously indicated, plaintiff was absent from FCI Ray Brook receiving outside treatment for his injuries during the fourteen-day period immediately following the inmate assault. In accordance with FCI Ray Brook policy requiring visits by prison officials to any inmate hospitalized for more than five days, Darrah, as plaintiffs unit manager, visited him in or about March of 2009, while he was a patient at the Adirondack Medical Center in Saranac Lake, in order to insure that his needs were being met. Tr. 133. When asked on that occasion whether he needed anything, Bailey replied, "No."
Bailey commenced this action on June 29, 2009. Dkt. No. 1. His complaint identifies Corrections Officer M. Fortier as the sole named defendant, and alleges that she violated his constitutional rights by failing to protect him from foreseeable harm. Id.
On January 8, 2010, prior to answering, Fortier moved to dismiss Bailey's complaint for failure to state a claim upon which relief may be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure or, alternatively, for summary judgment pursuant to Rule 56. Dkt. No. 10. The sole basis for Fortier's motion was her contention that Bailey's complaint is subject to dismissal based upon his failure to exhaust available administrative remedies before commencing suit, as required under 42 U.S.C. § 1997e(a). That motion resulted in my issuance of a report on August 30, 2010, recommending that the motion be denied, based upon the existence of genuine disputes of material fact to be resolved before addressing whether a proper basis for excusing the governing exhaustion requirement had been demonstrated. Dkt. No. 19. That recommendation was adopted by Chief District Judge Gary L. Sharpe on October 12, 2010. Dkt. No. 21.
The Prison Litigation Reform Act of 1996 ("PLRA"), Pub.L. No. 104-134, 110 Stat. 1321 (1996), which imposes several restrictions on the ability of prisoners to maintain federal civil rights actions, expressly requires that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a); see Woodford v. Ngo, 548 U.S. 81, 84, 126 S.Ct. 2378, 2382, 165 L.Ed.2d 368 (2006); Hargrove v. Riley, No. CV-04-4587, 2007 WL 389003, at *5-6 (E.D.N.Y. Jan.31, 2007). "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 992, 152 L.Ed.2d 12 (2002). An inmate plaintiffs complaint is subject to dismissal if the evidence establishes that he or she failed to properly exhaust available remedies prior to commencing the action, his or her complaint is subject to dismissal. See Pettus v. McCoy, No. 04-CV-0471, 2006 WL 2639369, at *1 (N.D.N.Y. Sept. 13, 2006) (McAvoy, J.); see also Woodford, 548 U.S. at 94-95, 126 S.Ct. at 2387-88 (holding that the PLRA requires "proper exhaustion" of available remedies). "Proper exhaustion" requires a plaintiff to procedurally exhaust his or her claims by "compl[ying] with the system's critical procedural rules." Woodford, 548 U.S. at 95, 126 S.Ct. at 2388; see also Macias, 495 F.3d at 43 (citing Woodford). Complete exhaustion has not occurred, for purposes of the PLRA, until all of the steps of that available process have been taken. Macias, 495 F.3d at 44; see also Johnson v. Rowley, 569 F.3d 40, 45 (2d Cir.2009); Strong v. Lapin, No. 90-CV-3522, 2010 WL 276206, at *4 (E.D.N.Y. Jan.15, 2010) ("Until the BOP'S Central Office considers the appeal, no administrative remedy is considered to be fully exhausted.").
Before applying the foregoing legal principles, I must first consider who bears the burden of proof, and whether that burden shifts throughout the analysis prescribed under Hemphill.
As an affirmative defense, Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007), exhaustion is a claim upon which the party asserting it typically bears the ultimate burden of proving its essential elements by a preponderance of the evidence. Soria v. Girdich, No. 9:04-CV-727, 2007 WL 4790807, at *2 (N.D.N.Y. Dec. 2007) (DiBianco, M.J.) (citing McCoy v. Goord, 255 F.Supp.2d 233, 247 (S.D.N.Y.2003)); McEachin v. Selsky, No. 9:04-CV-83(FJS/RFT), 2005 WL 2128851, at *4 (N.D.N.Y. Aug.30, 2005) (Scullin, C.J.) (citing Howard v. Goord, No. 98-CV-7471, 1999 WL 1288679, *3 (E.D.N.Y. Dec. 28, 1999)), aff'd in part, vacated in part, 225 F. App'x 36 (2d Cir.2007). The issue is somewhat complicated, however, by consideration of the three-part analysis mandated by Hemphill and related cases because that line of cases incorporates concepts—such as estoppel, for example— that typically require the party asserting them to bear the ultimate burden of proof. See e.g., Abbas v. Dixon, 480 F.3d 636, 642 (2d Cir.2007) ("The plaintiff bears the burden of showing that the action was brought within a reasonable period of time after the facts giving rise to the equitable tolling or equitable estoppel . . . ."); In re Heflin, 464 B.R. 545, 554 (D.Conn.2011) ("The burden of providing every element of an estoppel is upon the party seeking to set up the estoppel.") (citing Comm'r v. Union Pac. R.R. Co., 86 F.2d 637, 640 (2d Cir.1936)).
I have been unable to uncover any cases squarely holding that the defendant bears the ultimate burden of proof with regard to all elements of a Hemphill analysis. In the final analysis, however, Hemphill addresses all of the elements a court is required to consider when analyzing an exhaustion defense. See Macias, 495 F.3d at 41 ("In Hemphill we "read together" [a series of cases] and formulated a three-part test.. . .") (emphasis added). Therefore, I recommend a finding that, while the burden of production may shift to the plaintiff when a court undertakes a Hemphill analysis, the ultimate burden of proof with respect to the exhaustion defense remains, at all times, with the defendant. See Soria, 2007 WL 4790807, at *2 ("[A]s with other affirmative defenses, the defendant has the burden of proof to show that plaintiff failed to exhaust his administrative remedies.").
In this instance, the question of whether the ARP was available to Bailey is at the heart of the exhaustion analysis. The hearing testimony confirmed, and Bailey admitted, that at all times relevant to this litigation, there was an inmate grievance procedure in place at FCI Ray Brook. This, however, does not necessarily mean that it was "available" to the plaintiff.
Bailey contends that the grievance process was not available to him in light of the alleged refusal of prison officials to provide him with the forms necessary to file an ARR and pursue the grievance to culmination. Having considered the competing testimony, however, I conclude that Fortier has established, by a preponderance of the evidence, that the forms necessary to pursue a grievance in accordance with the ARP in place at FCI Ray Brook were available to Bailey through several sources, but were not requested. As such, Fortier has satisfied the first Hemphill factor.
"`Generally, a defendant in an action may not be estopped from asserting the affirmative defense of failure to exhaust administrative remedies based on the actions (or inactions) of other individuals.'" Atkins v. Menard, No. 9:11-CV-9366, 2012 WL 4026840, at *3 (N.D.N.Y. Sept.12, 2012) (Suddaby, J.) (citing Murray, 2010 WL 1235591, at *5 and n. 26 (collecting cases)). Put differently, a plaintiff must allege that a defendant named in the lawsuit acted to interfere with his ability to exhaust in order to establish a basis to estop that defendant from invoking the exhaustion defense. Calloway, 2011 WL 4345299, at *4 (citing Bennett v. James, 737 F.Supp.2d 219, 226 (S.D.N.Y.2010), aff'd, 441 F. App'x 816 (2d Cir.2011)) (other citations omitted).
The question of whether, in this instance, prison officials should be estopped from asserting failure to exhaust as an affirmative defense as a result of their conduct is inextricably intertwined with the question of availability of the remedy. Assuming, however, that this presents a distinct inquiry, the court must examine whether, through her conduct, Fortier has provided a basis to estop her from asserting an exhaustion defense.
In this instance, Bailey does not allege that Fortier engaged in a campaign to preclude him from filing a grievance regarding her actions. Instead, his focus is upon the alleged refusal of other officials at FCI Ray Brook to provide him with necessary forms and cooperate in his efforts to present his grievance against Fortier. Accordingly, Bailey has failed to present any evidence that would support an estoppel against the defendant from raising the issue of exhaustion. Atkins, 2012 WL 4026840, at * 3. Therefore, I conclude that Fortier has proven, by a preponderance of the evidence, that she did not, through her own actions, preclude Bailey from taking advantage of the ARP and therefore should not be estopped from asserting the defense.
The third, catchall factor that must be considered under the Second Circuit's prescribed exhaustion rubric centers upon whether special circumstances sufficient to justify excusing the plaintiffs failure to exhaust administrative remedies have been demonstrated. Hemphill, 380 F.3d at 689; see also Giano, 380 F.3d at 676-77; Hargrove, 2007 WL 389003, at *10. Among the circumstances potentially qualifying as "special" under this prong of the test is where a plaintiffs reasonable interpretation of applicable regulations regarding the grievance process differs from that of prison officials and leads him or her to conclude that the dispute is not grievable. Giano, 380 F.3d at 676-77; see also Hargrove, 2007 WL 389003, at *10 (quoting and citing Giano). Special circumstances may also exist when a facility's "[f]ailure to provide grievance deposit boxes, denial of forms and writing materials, and a refusal to accept or forward plaintiffs appeals-which effectively rendered the grievance process unavailable to him." Murray, 2010 WL 1235591, at *6 (quoting Sandlin v. Poole, 488 (W.D.N.Y.2008) (noting that "[s]uch facts support a finding that defendant's are estopped from relying on exhaustion defense as `special circumstances' excusing plaintiffs failure to exhaust")).
The credible testimony and evidence adduced at the recent hearing, held to address the merits of defendant's exhaustion defense, establishes that (1) Bailey failed to avail himself of the BOP grievance process, which was available to him, before commencing this action; (2) Fortier did not, through her actions, preclude Bailey from filing a grievance regarding the claims set forth in his complaint, or otherwise engage in conduct for which she should be estopped from asserting failure to exhaust as an affirmative defense; and (3) Bailey has offered no special circumstances warranting that he be excused from the PLRA's exhaustion requirement. Accordingly, it is therefore hereby respectfully
RECOMMENDED, that plaintiffs complaint in this action be DISMISSED, based upon his failure to comply with the exhaustion requirements of 42 U.S.C. § 1997e(a).
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the Clerk of the Court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir.1993).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.
Not Reported in F.Supp.2d, 2012 WL 6935254
Inthanousone Borihane, pro se.
Kenneth M. Alweis, Esq., Sandra J. Sabourin, Esq., of Counsel, Goldberg Segalla, LLP, Syracuse, NY, for the Defendant.
NORMAN A. MORDUE, Chief Judge.
After careful review of all of the papers herein, including the Magistrate Judge's Report-Recommendation, and no objections submitted thereto, it is
ORDERED, that:
1. The Report-Recommendation is hereby approved.
2. The defendant's motion seeking the entry of summary judgment dismissing plaintiffs complaint against him (Dkt. No. 22) is granted, and the plaintiffs complaint is dismissed in all respects on the basis of mootness.
3. The Clerk of the Court shall serve a copy of this Order upon all parties and the Magistrate Judge assigned to this case.
IT IS SO ORDERED.
DAVID E. PEEBLES, U.S. Magistrate Judge.
Plaintiff Inthanousone
Defendant has moved seeking dismissal of plaintiffs claims against him. Defendant's motion is predicated upon plaintiff's transfer out of the CCJ and into a federal prison facility, an occurrence which, Outhouse asserts, renders plaintiff's claim for injunctive relief academic. For the reasons set forth below I agree, and therefore recommend that defendant's motion be granted.
When his complaint in this action was filed, plaintiff was an inmate incarcerated in the CCJ, located in Auburn, New York, awaiting sentencing on a federal conviction.
Initially, plaintiff's complaint alleges that he was not provided with adequate legal resources and assistance while confined within the RHU. Id. at ¶ 7. Specifically, plaintiff asserts that the law library at the CCJ did not include all of the materials required under the New York Code of Rules and Regulations; did not offer the services of a notary public available to inmates, upon request, also as required; and did not make available a trained person to help him with his preparation of legal documents. Complaint (Dkt. No. 1) Attachment ¶ 4. Plaintiff further claims that over time, his requests for photocopies and law books were denied or severely restricted by prison officials, and these actions had the effect of unlawfully interfering with his access to the courts. Id. at ¶¶ 2, 3.
Plaintiff commenced this action on October 3, 2005, and was subsequently granted leave to proceed in forma pauperis. Dkt. Nos. 1, 4. In his complaint, plaintiff alleges interference with the free exercise of his religious beliefs and impaired access to the courts due to the inadequacy of the law library at the CCJ and the denial by prison officials of his requests for legal materials. Plaintiffs complaint requests only equitable relief, seeking a directed transfer to another facility where he would have access to the requisite religious and legal resources; plaintiff has not requested recovery of monetary damages against the defendant.
Issue in the case was joined on July 7, 2006 by the filing of an answer generally denying plaintiffs allegations and asserting various affirmative defenses including, inter alia, the lack of existence of a justiciable controversy, in light of plaintiffs transfer to another jail facility. Dkt. No. 9. Defendant has since moved, by motion filed on February 15, 2007, under Rules 56 and 12(b)(1) & (6) of the Federal Rules of Civil Procedure, in the alternative, urging dismissal of plaintiffs claims against him as moot, based upon his transfer out of the CCJ. Dkt. No. 22. Defendant's motion, to which plaintiff has filed no opposition, is now ripe for determination, and has been referred to me for the issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See also Fed.R.Civ.P. 72(b).
Confronted with a motion by the defendant seeking dismissal of his complaint, plaintiff has not provided the court with the benefit of any argument as to why that motion should not be granted. Before turning to the merits of defendant's motion, I must address the plaintiffs failure to respond to that motion and determine what, if any, consequences should result from that failure.
This court's rules provide that
N.D.N.Y.L.R. 7.1(b)(3). While recognizing that pro se plaintiffs are entitled to special latitude when defending against summary judgment motions, see Jemzura v. Pub. Serv. Comm'n, 961 F.Supp. 406, 415 (N.D.N.Y.1997) (McAvoy, C.J.), courts in this district have found it appropriate to grant a dispositive motion pursuant to Local Rule 7.1(b)(3) based upon a pro se plaintiffs failure to respond. Robinson v. Delgado, 96-CV-169, 1998 WL 278264, at *2 (N.D.N.Y. May 22, 1998) (Pooler, J. & Hurd, M.J.); Cotto v. Senkowski, 95-CV-1733, 1997 WL 665551, at *1 (N.D.N.Y. Oct. 23, 1997) (Pooler, J. & Hurd, M.J.); Wilmer v. Torian, 980 F.Supp. 106, 106-07 (N.D.N.Y.1997) (Pooler, J. & Hurd, M.J.). As can be seen by the face of Local Rule 7.1(b) (3), however, before summary judgment can be granted in this instance, even in the absence of opposition, the court must review the motion to determine whether it is facially meritorious. See Allen v. Comprehensive Analytical Group, Inc., 140 F.Supp.2d 229, 231-32 (N.D.N.Y.2001) (Scullin, C.J.); Leach v. Dufrain, 103 F.Supp.2d 542, 545-46 (N.D.N.Y.2000) (Kahn, J.).
Summary judgment is governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, summary judgment is warranted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10 (1986); Security Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir.2004). A fact is "material", for purposes of this inquiry, if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir.2005) (citing Anderson ). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. Though pro se plaintiffs are entitled to special latitude when defending against summary judgment motions, they must establish more than mere "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986); but see Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir.1999) (noting obligation of court to consider whether pro se plaintiff understood nature of summary judgment process).
When summary judgment is sought, the moving party bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue; the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n. 4, 106 S.Ct. at 2511 n. 4; Security Ins., 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material issue of fact for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; Anderson, 477 U.S. at 250, 106 S.Ct. at 2511.
Article III of the United States Constitution confers upon federal courts the authority to decide actual cases and controversies. Catanzano v. Wing, 277 F.3d 99, 107 (2d Cir.2001); see also Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 1253 (1990); Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1950-51 (1969). Consequently, a federal court presented with an action in which no live controversy exists may not entertain jurisdiction, but instead order dismissal of the case as moot. Catanzano, 277 F.3d at 107.
Addressing the concept of mootness, the Second Circuit has noted that
Martin-Trigona v. Shiff, 702 F.2d 380, 386 (2d Cir.1983). Under most circumstances, the transfer of an inmate plaintiff complaining of civil rights violations out of the prison facility in which those violations are alleged to have occurred presents just such a situation, thus mooting any claim for injunctive relief against prison officials of the transferring facility. Salahuddin v. Goord, 467 F.3d 263, 272 (2d Cir.2006); Prins v. Coughlin, 76 F.3d 504, 506 (2d Cir.1996); Young v. Coughlin, 866 F.2d 567, 568 n. 1 (2d Cir.), cert. denied, 492 U.S. 909, 109 S.Ct. 3224 (1989); Beyah v. Coughlin, 789 F.2d 986, 988 (2d Cir.1986); Candelaria v. Greifinger, No. 96-CV-0017, 1998 WL 312375, at *1 (N.D.N.Y. June 8, 1998) (Pooler, J. and Scanlon, M.J.).
The constitutional deprivations of which Borihane now complains allegedly occurred while he was confined as an inmate within the CCJ. It has been established to the court's satisfaction, both by virtue of plaintiffs failure to respond to the portion of defendant's Local Rule 7.1(a)(3) Statement making this allegation, and from the court's own records, that plaintiff is no longer an inmate at that facility, having instead apparently been transferred into the custody of the Federal Bureau of Prisons, following his sentencing in connection with his bank robbery conviction. See Defendant's Local Rule 7.1(a)(3) Statement (Dkt. No. 22-6) ¶ 3; see also Dkt. No. 14. Since it thus appears that plaintiff is no longer incarcerated at the CCJ, and there is no reason to conclude that the defendant, as the Cayuga County Sheriff, has any further involvement with the terms and conditions of Borihane's confinement, plaintiffs complaint, which seeks only equitable relief including a transfer to another facility where he can be provided with the requested legal and religious materials and services, must be dismissed as moot. Prins, 76 F.3d at 506; Salahuddin, 467 F.3d at 272.
RECOMMENDED that defendant's motion seeking the entry of summary judgment dismissing plaintiffs complaint against him (Dkt. No. 22) be GRANTED, and that plaintiffs complaint, be DISMISSED in all respects on the basis of mootness.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court within TEN days. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir.1993).
It is hereby ORDERED that the clerk of the court serve a copy of this Report and Recommendation upon the parties in accordance with this court's local rules.
Not Reported in F.Supp.2d, 2007 WL 2071698
Joseph Brown, Elmira, NY, Plaintiff, Pro Se.
Hon. Eliot L. Spitzer, Attorney General for the State of New York, Roger W. Kinsey, Esq., Assistant Attorney General, Albany, NY, for Defendants.
THOMAS J. McAVOY, Senior United States District Judge.
The Report-Recommendation dated November 20, 2006 recommended that Defendants' motion for summary judgment be granted and that the action be dismissed in its entirety. In the Report-Recommendation, Magistrate Judge Lowe found that Plaintiff had failed to adduce any evidence indicating that Defendants were personally involved in the alleged constitutional violations. Plaintiff filed objections to the Report-Recommendation.
When objections to a magistrate judge's Report-Recommendation are lodged, the Court reviews the record de novo. See 28 U.S.C. § 636(b)(1). After such a review, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate [judge]. The [Court] may also receive further evidence or recommit the matter to the magistrate [judge] with instructions." Id.
Having reviewed the record de novo and having considered the issues raised in Plaintiffs objections, this Court has determined to accept and adopt the recommendation of Magistrate Judge Lowe for the reasons stated in the November 20, 2006 Report-Recommendation. The Court has considered Plaintiffs grounds for objection and has found them to be without merit.
It is therefore
GEORGE H. LOWE, United States Magistrate Judge
This matter has been referred to me for Report and Recommendation by the Honorable Thomas J. McAvoy, Senior United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule N.D.N.Y. 72.3(c). This is a pro se civil rights action brought pursuant to 42 U.S.C. § 1983 by Inmate Joseph Brown ("Plaintiff") against New York State Department of Correctional Services ("DOCS") Commissioner Glenn S. Goord, Clinton Correctional Facility ("Clinton C.F.") Superintendent Dale Artus, and Clinton C.F. Sergeant Roy Lynch ("Defendants"). Generally, in his Complaint, Plaintiff alleges that Defendants violated his rights under the First, Eighth and Fourteenth Amendments due to their involvement in (1) the allegedly improper searching of his mail on or about October 8, 2003, (2) the allegedly improper searching of his prison cell on or about October 8, 2003, (3) the allegedly improper testing of his urine for drug usage on or about October 9, 2003, and January 25, 2004, and (4) the allegedly improper conducting of three disciplinary hearings concerning Plaintiff, which occurred in October of 2003 and February of 2004. (Dkt. No. 1 & Attachments [Plf.'s Compl.].)
Under Fed.R.Civ.P. 56(c), summary judgment is warranted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In determining whether a genuine issue of material
However, when the moving party has met its initial burden of establishing the absence of any genuine issue of material fact, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
Imposed over this general burden-shifting framework is the generous perspective with which the Court generally views a pro se civil rights plaintiffs papers.
Having said that, "[p]roceeding pro se does not otherwise relieve a [party] from the usual requirements to survive a motion for summary judgment."
Moreover, it appears that Plaintiff has filed at least six federal court appeals in actions dealing with his imprisonment:
Finally, an important point bears mentioning with regard to the in forma pauperis ("IFP") status that Plaintiff has enjoyed during this action. On July 6, 2004, Plaintiff applied for permission to proceed IFP. (Dkt. No. 2.) On July 15, 2004, I granted that application. (Dkt. No. 7.) In so doing, I relied on Plaintiffs sworn assertion in his Complaint that he had previously filed only one other federal court action dealing with his imprisonment.
However, to be sufficient to create a factual issue, an affidavit (or verified complaint) must, among other things, be based "on personal knowledge."
Finally, even where an affidavit (or verified complaint) is based on personal knowledge and is nonconclusory, it may be insufficient to create a factual issue where it is (1) "largely unsubstantiated by any other direct evidence" and (2) "so replete with inconsistencies and improbabilities that no reasonable juror would undertake the suspension of disbelief necessary to credit the allegations made in the complaint."
While I apply these legal principles below in the Analysis section of this Report-Recommendation (to the extent necessary), I pause to make four general observations. First, all of the factual assertions set forth in Defendants' Rule 7.1 Statement are supported by the record (although I note that one of those paragraphs does not contain a factual assertion but a legal conclusion, which is not appropriate for a Rule 7.1 Statement).
Although Plaintiff cites the above-stated legal standard in his memorandum of law, he does not expressly identify which of the five ways that Defendant Goord was allegedly involved in the alleged constitutional violations.
More specifically, Plaintiffs papers can be read as setting forth the following three arguments in support of Defendant Goord's personal involvement: (1) as the Commissioner of DOCS, Defendant Goord was responsible for "creat[ing]" and "enforcing" the "procedures being implemented against plaintiff at Clinton [C.F.]" in October of 2003; (2) as the Commissioner of DOCS, Defendant Goord was responsible for managing his "administrative staff" in October of 2003 who included, among others, Defendants Artus and Lynch; and (3) Defendant Goord failed to take appropriate action after being placed on "actual or constructive notice of the unconstitutional procedures that were being implemented at Clinton [C.F.]" in October of 2003 through the three letters that Plaintiff sent to Defendant Goord between October of 2003 and March of 2004.
Based on the record before me, I find that each of these three arguments is wholly without evidentiary support.
There is no evidence that Defendant Goord created, or allowed to continue, a policy or custom that sanctioned any constitutional violation (assuming there was such a violation). Plaintiff does not even bother to specify the "policy, practice or custom[]" to which he is conclusorily referring.
If, instead, Plaintiff is referring to Defendant Goord's policy of delegating to high-ranking subordinates the responsibility to read and respond to, complaints by prisoners, then Plaintiff is mistaken that such a policy renders Defendant Goord personally involved in the constitutional violations of which the prisoners complain.
Similarly without merit is Plaintiffs argument that Defendant Goord was "grossly negligent" in managing any subordinates who caused any constitutional violations in October of 2003. Even assuming such a violation occurred, there is no evidence of gross negligence (or even ordinary negligence) by Defendant Goord for the reasons stated above and below (in Parts IV.A.1.a. and IV.A.1.c. of this Report-Recommendation). Plaintiff does not even bother to allege or argue that such violations had occurred previously and that Defendant Goord was on actual or constructive notice of any such prior violations.
This is perhaps Plaintiffs strongest argument in favor of Defendant Goord's personal involvement in the alleged constitutional violations in October of 2003. However, as with Plaintiffs prior two arguments in favor of personal involvement, this argument is wholly devoid of evidentiary support.
Specifically, Plaintiffs letter of October 10, 2003, which was addressed to the DOCS Inspector General and copied to Defendant Goord, stated as follows:
Moreover, Plaintiffs letter of March 22, 2004, which was addressed to Defendant Artus and copied to Defendant Goord, stated as follows:
Finally, Plaintiffs letter of March 24, 2004, to Defendant Goord, stated as follows:
As an initial matter, I find it extremely questionable that these three letters were sufficient to provide Defendant Goord with even "constructive notice" of the alleged constitutional violations in October of 2003. The second two letters were sent to Defendant Goord in late-March of 2004, several months after the completion of the alleged constitutional violations in October of 2003. As a result, I fail to see how the two letters could possibly indicate "that unconstitutional acts were occurring" at the time of their receipt, as required for the fifth type of personal involvement. Hernandez, 341 F.3d at 145 [emphasis added].
Moreover, the first letter was devoid of factual detail about (1) who in the "correspondence office" at Clinton C.F. "tamper[ed]" with Plaintiffs mail, when did they do so, and exactly how or why the alleged mishandling of Plaintiffs mail was unconstitutional, (2) who searched Plaintiffs prison cell, when did they do so, and exactly how or why was that search unconstitutional, (3) who conducted a urinalysis test of Plaintiff, when did they do so, and exactly how or why was that test unconstitutional, and (4) how Defendant Lynch could have been responsible for the improper cell search if, as Plaintiff alleges, he "did not participate in said cell search."
In any event, even if Plaintiffs three letters were sufficient to put Defendant Goord on constructive notice of the alleged constitutional violations, it is uncontroverted that, following the receipt of Plaintiffs letters, Defendant Goord's office took action. Specifically, following the receipt of Plaintiffs October 10, 2003, letter to Defendant Goord, Defendant Goord's office forwarded the letter to DOCS Inspector General's Office Director of Operations Kenneth McLaughlin for a response;
Simply stated, no record evidence exists upon which a reasonable fact-finder could conclude that Defendant Goord "fail[ed] to act," as required for the fifth type of personal involvement. Hernandez, 341 F.3d at 145. If Plaintiff is arguing that Defendant Goord's actions were inadequate somehow, then Plaintiff has failed to specify the inadequacy, or support it with even a modicum of evidence.
Again, although Plaintiff cites the above-stated five-part legal standard in his memorandum of law, he does not expressly identify which of the five ways that Defendant Artus was allegedly involved in the alleged constitutional violations.
More specifically, Plaintiffs papers can be read as setting forth the following three arguments in support of Defendant Artus's personal involvement: (1) as the Superintendent of Clinton C.F., Defendant Artus was responsible for "enforc[ing]" and "put[ting] into practical application" the "policy and custom" created by Defendant Goord, which sanctioned or caused the alleged constitutional violations; (2) as the Superintendent of Clinton C.F., Defendant Artus was responsible for managing the staff at Clinton C.F., which included, among others, Defendant Lynch; and (3) Defendant Artus failed to take appropriate action after being placed on "constructive or actual notice" of the alleged constitutional violations at Clinton C.F. through the two appeals and one letter that Plaintiff sent to Defendant Artus in February and March of 2004.
Based on the record before me, I find that each of these three arguments is wholly without evidentiary support.
There is no evidence that Defendant Artus enforced or allowed to continue a policy or custom that sanctioned any constitutional violation (assuming there was such a violation). As with his allegations concerning Defendant Goord, Plaintiff does not even bother to specify the "policy and custom" to which he is conclusorily referring.
Generally, the same problems that undermine Plaintiffs reliance on this theory of personal involvement to hold Defendant Goord liable undermine Plaintiffs reliance on this theory to hold Defendant Artus liable.
Because Plaintiff advances this theory of personal involvement in such a conclusory fashion, it is difficult to identify and discuss this theory.
If Plaintiff is arguing that Defendant Artus's gross negligence in supervising his subordinates caused one or more of the constitutional violations that occurred in October of 2003, then that argument fails for rather obvious reasons. Specifically, Plaintiff does not adduce any evidence (or even allege) that (1) one of Defendant Artus's subordinates exhibited some sort of inclination before October 8, 2003 to commit one of the alleged constitutional violations occurring in October of 2003, (2) Defendant Artus was on actual or constructive notice of any such inclination before October 8, 2003, or (3) Defendant Artus failed to take proper care in disciplining or training that subordinate before October 8, 2003.
Similarly, if Plaintiff is arguing that Defendant Artus's gross negligence in supervising his subordinates caused one or more of the alleged constitutional violations that occurred in January or February of 2004, then that argument fails for two independent reasons. First, Plaintiff has neither alleged nor supported any facts indicating that the staff member responsible for a particular constitutional violation (such as the improper testing of his urine) in October of 2003 was the same staff member (or was acting pursuant to some sort of conspiracy with the staff member) who committed a similar constitutional violation in January or February of 2004.
As stated earlier, the type of absolute liability that Plaintiff wishes to impose on Defendant Artus due to his position as a supervisor is simply inconsistent with the standard for personal involvement in Section 1983 actions.
Specifically, at some point between October 10, 2003, and November 19, 2003, the DOCS Inspector General's Office referred to Defendant Artus's office for review a letter of complaint sent by Plaintiff to the Inspector General's Office dated October 10, 2003, regarding the alleged events of October 8 and 9, 2003.
Furthermore, on February 9, 2004, Plaintiff appealed to Defendant Artus's office from the determination of guilt (on the charge of using drugs) at Plaintiffs disciplinary hearing on February 5, 2004.
Moreover, on February 20, 2004, Plaintiff appealed to Defendant Artus's office from the denial (by the Clinton C.F. Inmate Grievance Review Committee) of his grievance dated February 10, 2004 (Grievance No. CLA-4014-04), complaining that improper urinalysis test procedures were employed on February 5, 2004.
Finally, Plaintiff's letter of March 22, 2004, which was addressed to Defendant Artus, stated as follows:
The problem with Plaintiff's reliance on these appeals and letters to show Defendant Artus's personal involvement in the alleged constitutional violations is not that the appeals and letters do not put Defendant Artus on "constructive notice" of the alleged violations but that each of the appeals and letters was followed by action taken by Defendant Artus's office.
Specifically, following the receipt of Plaintiff's letter to the Inspector General's Office dated October 10, 2003, and Plaintiff's letter to Defendant Artus dated March 22, 2004, Defendant Artus's office forwarded the matter to Clinton C.F. Captain S. Brown for investigation and response.
Similarly, following Plaintiff's February 9, 2004, appeal to Defendant Artus's office from his disciplinary conviction of February 5, 2004, Defendant Artus's office reviewed and affirmed that conviction on March 16, 2004; the conviction was later also reviewed and affirmed by the Central Office Review Committee on March 30, 2004.
Finally, following Plaintiff's February 20, 2004, appeal to Defendant Artus's office from the denial (by the Clinton C.F. Inmate Grievance Review Committee) of Plaintiff's grievance dated February 10, 2004, Defendant Artus's office referred the appeal for review to First Deputy Superintendent, William D. Brown; First Deputy Superintendent Brown reviewed and upheld the disposition of the Inmate Grievance Review Committee on February 19, 2004, which disposition was later also reviewed and upheld by the Central Office Review Committee on March 17, 2004.
Simply stated, no record evidence exists upon which a reasonable fact-finder could conclude that Defendant Artus "fail[ed] to act," as required for the fifth type of personal involvement. Hernandez, 341 F.3d at 145. If Plaintiff is arguing that Defendant Artus's actions were inadequate somehow, then Plaintiff has failed to specify the inadequacy, or support it with evidence.
As a result, I recommend that the Court dismiss Plaintiff's Complaint against Defendant Artus due to Defendant Artus's lack of personal involvement in any of the alleged constitutional violations.
With respect to the various constitutional violations that Plaintiff alleges, Plaintiff has failed to either (1) allege facts indicating that Defendant Lynch was personally involved in any of those violations or (2) adduce any evidence upon which a reasonable fact-finder could base a conclusion that Defendant Lynch was personally involved in any of those violations.
As stated earlier, Plaintiff alleges that Defendants violated his rights under the First, Eighth and Fourteenth Amendments due to their involvement in (1) the allegedly improper searching of his mail on or about October 8, 2003, (2) the allegedly improper searching of his prison cell on or about October 8, 2003, (3) the allegedly improper testing of his urine for drug usage on or about October 9, 2003, and January 25, 2004, and (4) the allegedly improper conducting of three disciplinary hearings concerning Plaintiff, which occurred in October of 2003 and February of 2004.
With regard to the allegedly improper searching of Plaintiff's prison cell on or about October 8, 2003, Plaintiff alleges that Defendant Lynch ordered that search (which was conducted by corrections officers other than Defendant Lynch).
With respect to the allegedly improper conducting of two disciplinary hearings concerning Plaintiff, which occurred on October 16, 2003, Plaintiff's sole allegation against Defendant Lynch is that those hearings were the result of two unfounded misbehavior reports authored by Defendant Lynch.
With respect to the allegedly improper testing of Plaintiff's urine for drug usage on or about January 25, 2004, Plaintiff does not allege that Defendant Lynch was personally involved in that test (such as by ordering it or conducting it). The closest Plaintiff comes to making such an allegation is when he alleges, "While Plaintiff awaited his hearing in punitive segregation at Clinton Annex, Sergeant Lynch[] came to Plaintiff's cell and stated[,] `You know[,] Brown, some guys know how to quit while they're ahead. What's your problem?"
For these reasons, I recommend that the Court dismiss all of Plaintiff's claims against Defendants Goord, Artus and Lynch based on Plaintiff's failure to allege facts indicating, and/or his failure to adduce evidence showing, that they were personally involved in the alleged constitutional violations.
Because I have already concluded that adequate reason exists to dismiss Plaintiff's Complaint, I need not, and do not, reach the merits of Defendants' alternative argument that Plaintiff's Complaint should be dismissed due to the fact that Plaintiff has failed to state a due process claim under the Fourteenth Amendment concerning the conducting of his three disciplinary hearings.
Again, because I have already concluded that adequate reason exists to dismiss Plaintiff's Complaint, I need not, and do not, reach the merits of Defendants' alternative argument that Plaintiff's Complaint should be dismissed due to the fact that Defendants are protected by qualified immunity as a matter of law.
Finally, again, because I have already concluded that adequate reason exists to dismiss Plaintiff's Complaint, I need not, and do not, reach the merits of Defendants' alternative argument that Plaintiff's Complaint should be dismissed due to the fact that the Eleventh Amendment bars recovery from Defendants in their official capacity.
Not Reported in F.Supp.2d, 2007 WL 607396
Joch & Kirby, Ithaca, New York, for Plaintiff, Joseph Joch, of counsel.
Bond, Schoeneck & King, LLP, Syracuse, New York, for Defendant, John Gaal, Paul Limmiatis, of counsel.
McCURN, Senior J.
The facts of this case, which the court recites below, are affected by plaintiff's failure to file a Statement of Material Facts which complies with the clear mandate of Local Rule 7.1(a)(3) of the Northern District of New York. This Rule requires a motion for summary judgment to contain a Statement of Material Facts with specific citations to the record where those facts are established. A similar obligation is imposed upon the non-movant who
L.R. 7.1(a)(3) (emphasis in original).
In moving for summary judgment, the University filed an eleven page, twenty-nine paragraph Statement of Material Facts, replete with citations to the record in every paragraph. Plaintiff, in opposition, filed a two page, nine paragraph statement appended to her memorandum of law which failed to admit or deny the specific assertions set forth by defendant, and which failed to contain a single citation to the record. Plaintiff has thus failed to comply with Rule 7.1(a)(3).
As recently noted in another decision, "[t]he Local Rules are not suggestions, but impose procedural requirements upon parties litigating in this District." Osier v. Broome County, 47 F.Supp.2d 311, 317 (N.D.N.Y.1999). As a consequence, courts in this district have not hesitated to enforce Rule 7.1(a)(3) and its predecessor, Rule 7.1(f)
Each student is assigned an advisor, though it is not uncommon for students to change advisors during the course of their studies, for a myriad of reasons. The advisor's role is to guide the student in regard to course selection and academic progress. A tenured member of the CFS department, Dr. Jaipaul Roopnarine, was assigned as plaintiff's advisor.
As a student's comp. exams near, he or she selects an examination committee, usually consisting of three faculty members, including the student's advisor. This committee writes the questions which comprise the student's comp. exams, and provides the student with guidance and assistance in preparing for the exams. Each member of the committee writes one exam; one member writes two. Two evaluators grade each exam; ordinarily the faculty member who wrote the question, and one other faculty member selected by the coordinator of exams.
Roopnarine, in addition to his teaching and advising duties, was the coordinator of exams for the entire CFS department. In this capacity, he was generally responsible for selecting the evaluators who would grade each student's comp. exam, distributing the student's answer to the evaluators for grading, collecting the evaluations, and compiling the evaluation results.
The evaluators graded an exam in one of three ways: "pass," "marginal" or "fail." A student who received a pass from each of the two graders passed that exam. A student who received two fails from the graders failed the exam. A pass and a marginal grade allowed the student to pass. A marginal and a fail grade resulted in a failure. Two marginal evaluations may result in a committee having to decide whether the student would be given a passing grade. In cases where a student was given both a pass and a fail, a third evaluator served as the tie breaker.
These evaluators read and graded the exam questions independently of each other, and no indication of the student's identity was provided on the answer.
Pursuant to the University's procedures, she retook the two exams she failed in January of 1997. Despite being given the same questions, she only passed one, child development. She again failed research methods by getting marginal and fail grades from her evaluators. This time, Roopnarine was not one of the evaluators for either of her exam questions.
After this second unsuccessful attempt at passing research methods, plaintiff complained to the chair of the CFS department, Dr. Norma Burgess. She did not think that she had been properly prepared for her exam, and complained that she could no longer work with Roopnarine because he yelled at her, was rude to her, and was otherwise not responsive or helpful. She wanted a new advisor. Plaintiff gave no indication, however, that she was being sexually harassed by Roopnarine.
Though plaintiff never offered any additional explanation for her demands of a new advisor, Burgess eventually agreed to change her advisor, due to plaintiff's insistence. In March of 1997, Burgess and Roopnarine spoke, and Roopnarine understood that he would no longer be advising plaintiff. After that time period, plaintiff and Roopnarine had no further contact. By June of that year, she had been assigned a new advisor, Dr. Mellisa Clawson.
Plaintiff then met with Clawson to prepare to take her research methods exam for the third time. Despite Clawson's repeated efforts to work with plaintiff, she sought only minimal assistance; this was disturbing to Clawson, given plaintiff's past failures of the research methods exam. Eventually, Clawson was assigned to write plaintiff's third research methods exam.
The first time plaintiff made any mention of sexual harassment was in August of 1997, soon before plaintiff made her third attempt at passing research methods. She complained to Susan Crockett, Dean of the University's College of Human Development, the parent organization of the CFS department. Even then, however, plaintiff merely repeated the claims that Roopnarine yelled at her, was rude to her, and was not responsive or helpful. By this time Roopnarine had no contact with plaintiff in any event. The purpose of plaintiff's complaint was to make sure that Roopnarine would not be involved in her upcoming examination as exam coordinator. Due to plaintiff's complaints, Roopnarine was removed from all involvement with plaintiffs third research methods examination. As chair of the department, Burgess took over the responsibility for serving as plaintiff's exam coordinator. Thus, Burgess, not Roopnarine, was responsible for receiving plaintiff's answer, selecting the evaluators, and compiling the grades of these evaluators;
Busby Aff. Ex. B.
The undisputed evidence shows that Clawson, Kawamoto and Busby each evaluated plaintiffs exam answer independently, without input from either Roopnarine or anyone else. Kawamoto and Busby did not know whose exam they were evaluating.
After receiving the one passing and two failing evaluations, Burgess notified plaintiff in December of 1997 that she had, yet again, failed the research methods exam, and offered her two options. Although the University's policies permitted a student to only take a comp. exam three times (the original exam, plus two retakes), the CFS department would allow plaintiff to retake the exam for a fourth time, provided that she took a remedial research methods class to strengthen her abilities. Alternatively, Burgess indicated that the CFS department would be willing to recommend plaintiff for a master's degree based on her graduate work. Plaintiff rejected both offers.
The second time plaintiff used the term sexual harassment in connection with Roopnarine was six months after she was notified that she had failed for the third time, in May of 1998. Through an attorney, she filed a sexual harassment complaint against Roopnarine with the University. This written complaint repeated her allegations that Roopnarine had yelled at her, been rude to her, and otherwise had not been responsive to her needs. She also, for the first time, complained of two other acts: 1. that Roopnarine had talked to her about his sex life, including once telling her that women are attracted to him, and when he attends conferences, they want to have sex with him over lunch; and
2. that Roopnarine told her that he had a dream in which he, plaintiff and plaintiffs husband had all been present.
Prior to the commencement of this action, this was the only specific information regarding sexual harassment brought to the attention of University officials.
The University concluded that the alleged conduct, if true, was inappropriate and unprofessional, but it did not constitute sexual harassment. Plaintiff then brought this suit. In her complaint, she essentially alleges two things; first, that Roopnarine's conduct subjected her to a sexually hostile educational environment; and second, that as a result of complaining about Roopnarine's conduct, the University retaliated against her by preventing her from finishing her doctorate, mainly, by her failing her on the third research methods exam.
The principles that govern summary judgment are well established. Summary judgment is properly granted only when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). When considering a motion for summary judgment, the court must draw all factual inferences and resolve all ambiguities in favor of the nonmoving party. See Torres v. Pisano, 116 F.3d 625, 630 (2d Cir.1997). As the Circuit has recently emphasized in the discrimination context, "summary judgment may not be granted simply because the court believes that the plaintiff will be unable to meet his or her burden of persuasion at trial." Danzer v. Norden Sys., Inc., 151 F.3d 50, 54 (2d Cir.1998). Rather, there must be either an absence of evidence that supports plaintiffs position, see Norton v. Sam's Club, 145 F.3d 114, 117-20 (2d Cir.), cert. denied, 525 U.S. 1001 (1998), "or the evidence must be so overwhelmingly tilted in one direction that any contrary finding would constitute clear error." Danzer, 151 F.3d at 54. Yet, as the Circuit has also admonished, "purely conclusory allegations of discrimination, absent any concrete particulars," are insufficient to defeat a motion for summary judgment. Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.1985). With these principles in mind, the court turns to defendant's motion.
Title IX provides, with certain exceptions not relevant here, that
20 U.S.C. § 1681(a).
Recently, the Supreme Court reiterated that Title IX is enforceable through an implied private right of action, and that monetary damages are available in such an action. See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, ___, 118 S.Ct. 1989, 1994 (1998) (citing Cannon v. University of Chicago, 441 U.S. 677 (1979) and Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60 (1992)).
Provided that a plaintiff student can meet the requirements to hold the school itself liable for the sexual harassment,
Conduct that is "merely offensive" but "not severe or pervasive enough to create an objectively hostile or abusive work environment-an environment that a reasonable person would find hostile or abusive" is beyond the purview of the law. Harris, 510 U.S. at 21. Thus, it is now clear that neither "the sporadic use of abusive language, gender-related jokes, and occasional testing," nor "intersexual flirtation," accompanied by conduct "merely tinged with offensive connotations" will create an actionable environment. Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998). Moreover, a plaintiff alleging sexual harassment must show the hostility was based on membership in a protected class. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 77 (1998). Thus, to succeed on a claim of sexual harassment, a plaintiff "must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted discrimina[tion] . . . because of . . . sex." Id. at 81 (alteration and ellipses in original).
The Supreme Court has established a non-exclusive list of factors relevant to determining whether a given workplace is permeated with discrimination so severe or pervasive as to support a Title VII claim. See Harris, 510 U.S. at 23. These include the frequency of the discriminatory conduct, its severity, whether the conduct was physically threatening or humiliating, whether the conduct unreasonably interfered with plaintiffs work, and what psychological harm, if any, resulted from the conduct. See id.; Richardson, 180 F.3d at 437.
Although conduct can meet this standard by being either "frequent" or "severe," Osier, 47 F.Supp.2d at 323, "isolated remarks or occasional episodes of harassment will not merit relief [ ]; in order to be actionable, the incidents of harassment must occur in concert or with a regularity that can reasonably be termed pervasive."` Quinn, 159 F.3d at 767 (quoting Tomka v. Seiler Corp., 66 F.3d 1295, 1305 n. 5 (2d Cir.1995)). Single or episodic events will only meet the standard if they are sufficiently threatening or repulsive, such as a sexual assault, in that these extreme single incidents "may alter the plaintiffs conditions of employment without repetition." Id. Accord Kotcher v. Rosa and Sullivan Appliance Ctr., Inc., 957 F.2d 59, 62 (2d Cir.1992) ("[t]he incidents must be repeated and continuous; isolated acts or occasional episodes will not merit relief.").
The more detailed allegations brought forth for the first time in May of 1998 are equally unavailing. These allegations are merely of two specific, isolated comments. As described above, Roopnarine told plaintiff of his sexual interaction(s) with other women, and made a single, non-sexual comment about a dream in which plaintiff, plaintiffs husband, and Roopnarine were all present. Accepting as true these allegations, the court concludes that plaintiff has not come forward with evidence sufficient to support a finding that she was subject to abuse of sufficient severity or pervasiveness that she was "effectively denied equal access to an institution's resources and opportunities." Davis, 119 S.Ct. at 1675.
Quinn, a recent Second Circuit hostile work environment case, illustrates the court's conclusion well. There, plaintiff complained of conduct directed towards her including sexual touching and comments. She was told by her supervisor that she had been voted the "sleekest ass" in the office and the supervisor deliberately touched her breasts with some papers he was holding. 159 F.3d at 768. In the Circuit's view, these acts were neither severe nor pervasive enough to state a claim for hostile environment. See id. In the case at bar, plaintiffs allegations are no more severe than the conduct alleged in Quinn, nor, for that matter, did they occur more often. Thus, without more, plaintiffs claims fail as well.
Even if plaintiffs allegations were sufficiently severe or pervasive, her hostile environment claim would still fail. As previously discussed, see supra note 5, the Supreme Court recently departed from the framework used to hold defendants liable for actionable conduct under Title VII. See Davis, 119 S.Ct. at 1671; Gebser, 118 S.Ct. at 1999. Pursuant to these new decisions, it is now clear that in order to hold an educational institution liable for a hostile educational environment under Title IX, it must be shown that "an official who at minimum has authority to address the alleged discrimination and to institute corrective measures on the [plaintiffs] behalf has actual knowledge of [the] discrimination [.]" Gebser, 118 S.Ct. at 1999 (emphasis supplied). What's more, the bar is even higher: after learning of the harassment, in order for the school to be liable, its response must then "amount to deliberate indifference to discrimination[,]" or, "in other words, [ ] an official decision by the [school] not to remedy the violation." Id. (Emphasis supplied). Accord Davis, 119 S.Ct. at 1671 ("we concluded that the [school] could be liable for damages only where the [school] itself intentionally acted in clear violation of Title IX by remaining deliberately indifferent to acts of teacher-student harassment of which it had actual knowledge."). This requires plaintiff to show that the school's "own deliberate indifference effectively `cause[d]' the discrimination." Id. (alteration in original) (quoting Gebser, 118 S.Ct. at 1999). The circuits that have taken the question up have interpreted this to mean that there must be evidence that actionable harassment continued to occur after the appropriate school official gained actual knowledge of the harassment. See Reese v. Jefferson Sch. Dist., 208 F.3d 736, 740 (9th Cir.2000); Soper v. Hoben, 195 F.3d 845, 855 (6th Cir.1999); Murreel v. School Dist. No. 1, Denver Colo., 186 F.3d 1238, 1246 (10th Cir.1999); Wills v. Brown Univ., 184 F.3d 20, 26-27 (1st Cir.1999).
There is no serious contention that plaintiff can satisfy this requirement.
As plaintiffs allegations of harassment are not severe or pervasive enough to state a claim, and in any event, this conduct can not be attributed to the University, her hostile environment claim is dismissed.
Plaintiff's retaliation claim must be dismissed as well. She cannot establish an actionable retaliation claim because there is no evidence that she was given failing grades due to complaints about Roopnarine. See Murray, 57 F.3d at 251 (retaliation claim requires evidence of causation between the adverse action, and plaintiffs complaints of discrimination). The retaliation claim appears to be based exclusively on plaintiffs speculative and conclusory allegation that Roopnarine was involved in or influenced the grading of her third research methods exam.
The undisputed evidence establishes that Roopnarine had no role in the selection of who would grade plaintiffs exam. Nor, for that matter, did he grade the exam; this was done by three other professors. Each of these professors has averred that they graded the exam without any input or influence from Roopnarine. More importantly, it is undisputed that none of the three had any knowledge that a sexual harassment complaint had been asserted by plaintiff against Roopnarine, not surprising since two of the three did not even know whose exam they were grading. Plaintiff's inability to show that her failure was causally related in any way to her complaint of harassment is fatal to her retaliation claim.
IT IS SO ORDERED.
Not Reported in F.Supp.2d, 2000 WL 1264122
Darrell Friedland, pro se.
Deann S. Varunes, Attorney General's Office, Hartford, CT, for Defendants.
JANET BOND ARTERTON, District Judge.
Plaintiff previously served a prison sentence in Ohio. After he was released on parole, the Ohio parole officers transferred Plaintiff's parole to Connecticut. On December 30, 2005, the Connecticut Board of Pardons and Paroles began supervising Plaintiff's parole.
On August 4, 2006, a Connecticut parole officer remanded Friedland to the custody of the Connecticut Department of Correction on a violation of the terms of his parole in connection with the Vernon Police Department's investigation of allegations that Plaintiff had been involved in an assault with a dangerous weapon in July 2006. Department of Correction officials remanded Plaintiff to Hartford Correctional Center at that time. Vernon Police Officers subsequently arrested Plaintiff in September 2006 on charges of assault in the second degree, reckless endangerment in the first degree, and carrying a dangerous weapon.
On August 10, 2006, prison officials at Hartford Correctional Center issued a disciplinary ticket charging Friedland with a Security Risk Group affiliation based on his membership in the Aryan Brotherhood and also notified Plaintiff that he would have a classification hearing to determine if he should be designated as a Security Risk Group Member or Security Risk Group Safety Threat Member.
On August 10, 2006, Plaintiff participated in a classification hearing. At the conclusion of the hearing, prison officials informed Plaintiff in writing that he had been designated as a Security Risk Group Member of the Aryan Brotherhood and that he had been placed on punitive segregation status. On September 26, 2006, prison officials transferred Plaintiff to Northern Correctional Institution in Somers, Connecticut ("Northern") and placed him in a Close Monitoring Unit. At the time, Northern was a designated facility for managing inmates who had been designated as Security Risk Group Members.
On April 16, 2008, two State of Connecticut Judicial Marshals transported Friedland from Northern to the Connecticut Superior Court for the Judicial District of Rockville in connection with the assault, reckless endangerment, and weapon possession charges pending against him. See State v. Friedland, Docket Nos. T19CR06-088011—S, T19R—CR06-0088012—S. At this court appearance, Plaintiff pleaded guilty to two counts of assault in the second degree in violation of Connecticut General Statutes § 53a-60, one count of reckless endangerment in the first degree Connecticut General Statutes § 53a-63 and one count of carrying a dangerous weapon in violation of Connecticut General Statutes § 53— 206.
During the ride to MacDougall—Walker, some of the inmates in the van argued about a baseball cap worn by an inmate sitting across the partition from Friedland. One or more of the inmates covered the van's cameras used to monitor what was happening in the rear of the van. When one of the inmates on the other side of the partition called Plaintiff a name, Plaintiff kicked out part of the partition for access to the other side of the van.
The Judicial Marshals radioed their supervisor about the incident, who advised them to remain in the area until the Connecticut State Police arrived at their location. After State Police Officers arrived approximately twenty minutes later, the officers and the Marshals' supervisor decided to keep the inmates in the van and to transport them to MacDougall—Walker. Upon arrival, MacDougall—Walker officials unloaded all of the other inmates, and Plaintiff was then transported to Northern.
On April 17, 2008, a prison official issued Friedland a disciplinary report charging him with the Class A Offense of Attempted Escape related to the April 16, 2008 van incident. On May 14, 2008, Defendant Otero presided over the hearing held on the disciplinary charge, finding Plaintiff guilty of attempted escape and imposing sanctions. Defendant Choinski upheld the disciplinary finding on appeal. On May 13, 2008, correctional officials at Northern issued an order that Plaintiff be placed on High Security Status. Plaintiff was not afforded a hearing prior to this High Security Status designation.
On August 15, 2008, prison officials transported Friedland back to Rockville Superior Court for sentencing on the charges to which he had pled guilty on April 16, 2008. During that court proceeding, Plaintiff was sentenced to a total effective sentence of five years' imprisonment, followed by two years of special parole. On March 4, 2009, Plaintiff appeared in state court pursuant to his guilty pleas to one count of disorderly conduct and one count of criminal mischief in connection with his involvement in the incident in the prison van on April 16, 2008. See State v. Friedland, Docket No. T19RCR08— 0092492—S. He was sentenced to thirty days' imprisonment on both counts to be served concurrently to each other and to his sentence on the Vernon charges, and was ordered to pay restitution in the amount of $585.00 for destruction to the prison van.
As a preliminary matter, for the purposes of this action, the parties do not dispute that Plaintiff was a pretrial detainee from at least April 16, 2008 through August 15, 2008, when he was sentenced to five years of imprisonment on the Vernon criminal charges. Because all of the relevant events in this case, such as the incident in the prison van, Friedland's disciplinary hearing, and his High Security designation, took place during this time period, Friedland's due process claims will be evaluated by the standards governing pretrial detainees.
The claims of a pretrial detainee confined in a state correctional facility are reviewed under the Due Process Clause of the Fourteenth Amendment. See Bell v. Wolfish, 441 U.S. 520, 535 & n. 16 (1979). Because "[a] person lawfully committed to pretrial detention has not been adjudged guilty of any crime," the Fourteenth Amendment dictates that he or she may not be punished in any manner-neither cruelly and unusually nor otherwise. Id. at 536-37. To state a claim for violation of procedural due process, a plaintiff must demonstrate that he "possessed a protected liberty or property interest, and that . . . [the defendants] deprived [him] of that interest without due process of law." McMenemy v. City of Rochester, 241 F.3d 279, 285-86 (2d Cir.2001) (citation omitted). "Liberty interests protected by the Fourteenth Amendment may arise from two sources the Due Process Clause itself and the laws of the States." Hewitt v. Helms, 459 U.S. 460, 466 (1983).
In determining the type of process due a pretrial detainee, courts have focused on the purpose and need for the restraint on the protected liberty interest. The Court of Appeals for the Second Circuit has held that a pretrial detainee who has been subjected to disciplinary sanctions or punitive restraints is entitled to the due process protections set forth in Wolff v. McDonnell, 418 U.S. 539 (1974). See Benjamin v. Fraser, 264 F.3d 175, 190 (2d Cir.2001) (affirming district court's application of Wolff to pretrial detainees and noting that the required Wolff procedures were applicable to a restraint on the detainee's liberty that was "imposed for disciplinary reasons" or constituted punishment due to its painful and injurious nature). Thus, if the purpose of the restraint on liberty is punitive in nature, the procedural protections set forth in Wolff apply. However, if the purpose of the restraint on liberty is administrative, then the minimal procedures outlined in Hewitt v. Helms, 459 U.S. 460 (1983) are all that is required. See Benjamin, 264 F.3d at 190. Administrative purposes include restraints that are employed to achieve a legitimate governmental interest in protecting the safety of the individual, prison staff or the general prison population.
Plaintiff does not dispute that he received a disciplinary report in connection with the attempted escape charge more than twenty-four hours before his disciplinary hearing, as required by Wolff. Rather, Plaintiff argues that the report was too vague to provide him with meaningful notice of the charge against him. In Taylor v. Rodriguez, 238 F.3d 188 (2d Cir.2001), the Second Circuit, considering the minimum requirements for notice to an inmate in the context of a disciplinary or administrative segregation hearing, held that notice is more than a "mere formality;" it must "be sufficiently specific as to the misconduct with which the inmate is charged to inform the inmate of what he is accused of doing so that he can prepare a defense to those charges and not be made to explain away vague charges set out in a misbehavior report." Id. at 192-93 (quoting McKinnon v. Patterson, 568 F.2d 930, 940 n. 11 (2d Cir.1977)).
The April 17, 2008 disciplinary report issued to Friedland by Lieutenant Bernard Loubier charged Plaintiff with the Class A Offense of Attempted Escape.
Plaintiff complains that the disciplinary report did not include specific facts as to what conduct constituted an attempted escape. The report includes the specific location, date, and time period during which the alleged attempted escape occurred, April 16, 2008 at approximately 3:05 P.M. in the transportation van on the way back from state court to MacDougall-Walker. The Court concludes that the lack of details as to the specific actions taken by Friedland in the van at approximately 3:05 P.M. does not render the report deficient.
During the investigation of the disciplinary report and at the hearing, Friedland's defense was that he was sitting at the end of the van, did not participate in knocking down the dividing partition and did not attempt to escape. In addition, he claimed that the other inmates in the van could corroborate that he had not attempted to escape from the van. Thus, the specific information as to time, date, and location and the nature of the charge provided minimally adequate notice to Friedland of the conduct at issue and enabled him to attempt to prepare his defense to the charge. See Kalwasinski v. Morse, 201 F.3d 103, (2d Cir.1999) ("discrepancy as to the precise nature of the threatened harm did not represent a failure of specificity that would impair [plaintiffs] ability to prepare his defense, especially since his defense was simply that the . . . report was a fabrication"); Wright v. Dixon, 409 F.Supp.2d 210, 214 (W.D.N.Y.2006) (although disciplinary report included misstatement as to the time of the misconduct alleged to have been committed by the plaintiff, "the report was otherwise sufficiently detailed to put the plaintiff on notice of the conduct at issue"). Therefore, Plaintiffs advance receipt of the disciplinary report was not constitutionally defective and Defendants' motion for summary judgment is granted as to this claim.
Plaintiff states that a prison official assigned Defendant Kay to be his advocate to assist him in preparing for the hearing on the disciplinary report. He contends that Defendant Kay failed to investigate the allegations against him or assist him in preparing a defense by securing witnesses to offer testimony or written statements at the hearing.
Plaintiff acknowledges that on April 21, 2008, Defendant Kay discussed the disciplinary report with him and that he informed Kay that he had not attempted to escape from the van. Friedland avers that he asked Kay to find out the names of the inmates who were on the transportation van with him and to arrange to have them testify on his behalf in support of his claim that he had not tried to escape from the van. Friedland contends that Kay informed him that the inmates could not be transported to Northern for the hearing. When Friedland asked Kay to obtain written statements from the inmates to be submitted at the hearing, he refused to do so. The parties dispute whether Kay was present at the hearing. (See Pl.'s Aff. ¶ 35; Otero Aff. [Doc. # 20-9] ¶ 13.) Defendants argue that Kay adequately performed his role as Friedland's advocate.
Here, Plaintiff states that he was in a restrictive housing unit at the time of the hearing, was only able to ascertain the name of one of the ten other inmates who were present on the prison van on April 16, 2008, and was unaware of the whereabouts of any of the inmates in order to secure their presence at his hearing. He instructed Kay to either arrange to have the inmates testify or get written statements from them, but Kay refused to do so and no witnesses were present nor were any witness statements introduced at the hearing. (See Pl.'s Aff. ¶¶ 27-32, 35.) Kay's Advocate Investigation Report is unclear regarding any requests for witness statements or testimony requested by Friedland as those sections were left blank and no mention was made of witnesses in the Conclusion and Recommendation section of the report. (See May 14, 2008 Disciplinary Process Summary Report at 8-9.)
Defendants contend that Kay's report suggests that Plaintiff did not ask to present witnesses at the hearing. Since Kay has not submitted an affidavit, there is conflicting evidence as to whether Friedland asked Kay to secure witness testimony or statements to be submitted at the hearing and whether the lack of access to these statements or testimony deprived Plaintiff of the opportunity to marshal evidence and present a defense. Thus, Defendants have not met their burden of demonstrating that there are no issues of material fact in dispute regarding the adequacy of the assistance provided to Plaintiff by Kay in preparation for the hearing, and their motion for summary judgment is therefore denied as to this procedural due process claim.
Plaintiff claims that Defendant Otero's Disciplinary Summary Process Report was deficient because it did not set forth the evidence that she relied on to support her finding of Friedland's guilt on the attempted escape charge. Defendants contend that Otero's Summary Process Report provided a sufficient description of the evidence that she may have relied on and her reasons for reaching her decision.
However, a review of Otero's Disciplinary Summary Process Report reflects that it does not include or describe any specific evidence relied on or the reasons for her disciplinary finding. Rather, the Summary Process Report simply refers generally to "documentation submitted" in support of the decision. It is only Defendant Otero's affidavit that says "documentation submitted" means the Incident Report Package prepared in connection with the disturbance that occurred on the prison van driven by Judicial Marshals, a Medical Incident Report and a Use of Force Report. (See Otero Aff. ¶ 16; see also May 14, 2008 Disciplinary Process Summary Report; April 16, 2008 Incident Report, Ex. 3 to Blais Aff.) Thus, in the absence of Otero's Affidavit, submitted in support of Defendants' motion for summary judgment, a reasonable jury could conclude that the Summary Report did not identify the documents that constituted the evidence Otero relied on in reaching her decision on the disciplinary charge against Friedland.
Defendant Otero's Summary Process Report provided no description of the evidence that she relied on to support her guilty finding and she offered no security justification for the omission. Without either, a reasonable jury could conclude that Defendant Otero's Summary Process Report fails to meet the requirement in Wolff that the hearing officer provide a written statement of the evidence relied on and the reasons for her disciplinary action. See Davidson v. Capuano, No. 78 CIV. 5724(RLC), 1988 WL 68189, at *12 (S.D.N.Y. June 16, 1988) (holding that hearing officer's report that simply listed a reference to a source of information a "Misbehavior Report" as the evidence relied did not satisfy the requirements of Wolff); Powell v. Ward, 487 F.Supp. 917, 930 (S.D.N.Y.1980) (finding limited statements listing only a source or sources of information related to charges were inadequate and failed to comply with Wolff), modified on other grounds, 643 F.2d 924 (2d Cir.1980), cert. denied, 454 U.S. 832 (1981). The Court concludes that Plaintiff has presented a viable due process claim with respect to Otero's failure to identify the specific evidence upon which she relied in her disciplinary decision, and Defendants' motion for summary judgment is therefore denied as to this procedural due process violation.
Plaintiff argues that there was no evidence to support Defendant Otero's decision that he was guilty of attempted escape. The Due Process Clause of the Fourteenth Amendment requires that a hearing officer's determination be supported by "some evidence." Superintendent v. Hill, 473 U.S. 445, 455 (1985). "This standard is extremely tolerant and is satisfied if `there is any evidence in the record that supports'" the hearing officer's disciplinary determination. Sira, 380 F.3d at 69 (quoting Friedl v. City of New York, 210 F.3d 79, 85 (2d Cir.2000)) (analyzing evidence in summary judgment record although the defendants failed to identify or describe this evidence in the disciplinary decision).
Defendants contend that the claims against Defendant Choinski should be dismissed because he lacked personal involvement in the alleged violation of Plaintiffs due process rights in that he did no more than deny Plaintiffs appeal of Defendant Otero's guilty determination. Plaintiff counters that the denial of his appeal constitutes sufficient personal involvement to impose supervisory liability on Defendant Choinski.
As a supervisory official, Defendant Choinski cannot be held liable under section 1983 solely for the acts of his subordinates. See Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir.1985). Plaintiff may show supervisory liability by demonstrating one or more of the following criteria: (1) the defendant actually and directly participated in the alleged unconstitutional acts; (2) the defendant failed to remedy a wrong after being informed of the wrong through a report or appeal; (3) the defendant created or approved a policy or custom that sanctioned objectionable conduct which rose to the level of a constitutional violation or allowed such a policy or custom to continue; (4) the defendant was grossly negligent in supervising the correctional officers who committed the constitutional violation; and (5) the defendant failed to take action in response to information regarding the occurrence of unconstitutional conduct. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995) (citation omitted). In addition, Plaintiff must demonstrate an affirmative causal link between the inaction of the supervisory official and his injury. See Poe v. Leonard, 282 F.3d 123, 140 (2d Cir.2002).
After Defendant Otero found Plaintiff guilty of attempted escape, Plaintiff filed an appeal of the decision and the sanctions imposed by Defendant Otero. In response, Defendant Choinski engaged in an extensive review of the appeal and concluded there was sufficient evidence to support the guilty finding and that no serious due process failure had occurred prior to or during the disciplinary hearing. (See Appeals Decision, Ex. 5 to Blais Aff.)
The Second Circuit has held that a supervisory official in charge of a correctional facility may be personally involved in depriving an inmate of his due process rights during a hearing on a disciplinary charge if he or she affirmed the appeal of the hearing officer's decision. See Williams v. Smith, 781 F.2d 319, 324 (2d Cir.1986) (concluding that the plaintiff had "sufficiently alleged that Superintendent Smith was personally involved in depriving him of his due process right to call witnesses" at the hearing on the misbehavior report when Smith affirmed the guilty finding on appeal); Wright v. Smith, 21 F.3d 496, 502 (2d Cir.1994) (concluding that Superintendent "Smith was [a] supervisory official [who], after learning of the violation through a report or appeal, . . . failed to remedy the wrong"). Furthermore, in situations where the supervisory official has actively considered the issues raised by the inmate in reviewing and responding to the appeal rather than simply rubber-stamping the underlying decision of the hearing officer, personal involvement on the part of the supervisory official has been found. See Molano v. Bezio, No. 10-CV-6481L, 2012 WL 1252630, at * 5 (W.D.N.Y. Apr. 13, 2012) (holding that a supervisory official was involved in a due process violation because he considered deficiencies underlying the hearing as well as exculpatory evidence in modifying the sentence imposed by the hearing officer); Thomas v. Calero, 824 F.Supp.2d 488 (S.D.N.Y.2011) (concluding that the Director of Special Housing/Inmate Disciplinary Programs' decision to affirm the Hearing Officer's "determination of guilt with only a modification of the penalty [was] sufficient to demonstrate involvement and could lead a trier or fact to impose liability under the second Colon factor").
Thus, Defendant Choinski's investigation of Plaintiffs due process claims in connection with the issuance of the disciplinary report and the hearing to dispose of the disciplinary report constituted sufficient involvement under the second Colon factor, and Defendant's motion for summary judgment is therefore denied as to claims against Defendant Choinski relating to his alleged failure to remedy the underlying procedural defects associated with the disciplinary hearing.
Plaintiff claims that Defendant Levesque's decision to place him on High Security Status before he had been found guilty of attempted escape violated his due process rights. Defendant Levesque counters that because the placement on High Security Status was not punitive, and rather was as a result of legitimate safety and security concerns, Plaintiffs security designation did not violate his due process rights.
The parties do not dispute that on April 29, 2008, Warden Jeffrey McGill sent a letter to Director of Offender and Classification and Population Management Levesque recommending that Plaintiff be placed on High Security Status pursuant to State of Connecticut Administrative Directive 9.4(14) due to his conduct in kicking the partition in the transport van on April 16, 2008. Warden Murphy determined that Friedland met the criteria for high security placement because he was an inmate who has engaged in "an instant serious escape [or] attempted serious escape." (See Admin. Dir. 9.4, Ex. 2 to Cruickshank Aff. [Doc. # 40-3] at 10.) In response, on May 8, 2008, Director Levesque sent a letter to Warden McGill indicating that he concurred with the recommendation of Plaintiffs placement on High Security Status and directed Warden McGill to hold a Classification Hearing to inform Plaintiff of his designation to this status. (See Levesque Letter, Ex. 2 to Milling Aff. [Doc. # 20-10].) However, no such hearing was held, and on May 13, 2008, Counselor Suse issued Friedland a document entitled High Security Placement, advising him that he had been placed on High Security Status pursuant to State of Connecticut Administrative Directive 9.4, and explaining the restrictions under which he would be managed during his placement on High Security Status. (See High Security Placement, Ex. 3 to Milling Aff.) Friedland signed the High Security Placement document on May 19, 2008. Friedland states that he was confined on High Security Status until his release on parole.
A pretrial detainee has a liberty interest in being free from punishment "prior to an adjudication of guilt in accordance with due process of law." Bell, 441 U.S. at 535. Defendant Levesque argues that Plaintiff has no protected liberty interest under the Due Process Clause of the Fourteenth Amendment because he was placed High Security Status not for punitive reasons, but rather for the legitimate governmental purpose of safety and security as a result of his attempted escape from the prison van on April 16, 2008. (See Aldi Aff. [Doc. # 40-4] ¶ 33.) Plaintiff has presented no evidence based on which a jury could reasonably conclude that his designation to High Security Status was punitive in any way.
Connecticut Department of Correction Security Risk Coordinator Aldi avers that an inmate's placement on High Security Status permits Department of Correction staff to engage in increased supervision of an inmate who might be a threat to the security of the prison facility, staff, inmates, or the public. (See id. at ¶ 13.) There is nothing in the Administrative Directives that prohibits a prison official from designating an inmate to High Security Status prior to a disciplinary finding of guilt as to an attempted escape charge. (See id. at ¶¶ 32-34.) Plaintiffs placement on High Security Status was based on his involvement in the incident in the prison van on April 16, 2008 and was documented in the Incident Report prepared by Department of Correction officials later that day. (See April 16, 2008 Incident Report.) Although Plaintiff avers that he did not attempt to escape from the prison van, he concedes that he kicked out the partition in the van, walked over the broken partition to the other side of the van and confronted an inmate sitting there. (See Pl.'s Aff. ¶¶ 16-20.)
Defendant Levesque further contends that Plaintiff's High Security Status designation was not an exaggerated response to Plaintiffs behavior, but was reasonably related to the legitimate penological objective of maintaining the safety and security of the prison staff and the public as well as monitoring and managing Plaintiffs custody. In light of the Department of Correction's consideration of the conversations overheard by the State Judicial Marshals who were driving the van, as well as their observations of Plaintiffs behavior, and Plaintiff's concession that he did kick out the partition in the van, the decision to place Plaintiff on High Security Status was not an unreasonable or excessive response to Plaintiffs conduct in the van. See Bell, 441 U.S. at 540 n. 23 (determination whether particular restriction or limitation is reasonably related to the function of pretrial confinement requires courts to remember that the implementation of such restrictive measures is "peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.")
The Second Circuit has held that even if a restraint or restriction placed on a pretrial detainee is not punitive, a Court must also determine whether the state by "statute or regulation prescribes mandatory procedures that . . . create a liberty interest." Covino, 933 F.2d at 129 (citing Hewitt, 459 U.S. 103). In Hewitt, the Supreme Court analyzed Pennsylvania laws governing placement of prisoners in administrative segregation and concluded that these laws created a liberty interest because they included "language of unmistakably mandatory character, requiring that certain procedures be employed . . . and that administrative segregation will not occur absent specified substantive predicates . . . ." identified as "the need for control" and "the threat of a serious disturbance." Id. at 471-72 & n. 6 (internal quotation marks omitted).
Defendant Levesque neglects to engage in any examination or discussion of whether the State of Connecticut's Administrative Directives governing Classification and Restrictive Housing placement include mandatory language that might be construed to require procedural due process protections prior to or after a pretrial detainee's placement on or designation to High Security Status. Instead, without discussion, he simply concludes that Plaintiff has no liberty interest in his classification to High Security Status under state law because the Department of Correction has discretion to determine prisoner classifications.
Assuming that Plaintiff has demonstrated a liberty interest in his security status designation, Plaintiff was entitled to at least "the minimal procedures outlined in Hewitt." Benjamin, 264 F.3d at 190. In Hewitt, the Supreme Court held that "[a]n inmate must merely receive some notice of the charges against him and an opportunity to present his views [either orally or in writing] to the prison official charged with deciding whether to transfer him to administrative segregation," and the "proceeding must occur within a reasonable time following the inmate's transfer." Id. at 476 & n. 8.
Defendant Levesque has not addressed whether Plaintiffs receipt of written notice of his placement on High Security Status met the requirements of Hewitt. After Defendant Levesque approved Plaintiffs designation to High Security Status on May 9, 2008, Counselor Supervisor Mark R. Suse prepared a notice of High Security Placement dated March 13, 2008. On May 19, 2008, Plaintiff signed the notice indicating that he had been informed of his placement on High Security Status. The notice advised Plaintiff that he had been placed on High Security Status pursuant to Administrative Directive 9.4 and described the restrictions that would accompany the placement. The notice did not include the basis for the designation. Thus, although the notice was provided to Plaintiff within a reasonable time after Defendant Levesque's decision to place him on High Security Status, it did not include the charges against him or the basis for his designation to High Security Status. Furthermore, there is no evidence to suggest that the mere delivery of the notice to Plaintiff by Counselor Suse met the requirement that Plaintiff be given an opportunity to present his views to either Defendant Levesque or Warden McGill as to the decision to place him on High Security Status. Based on the modicum of evidence presented by parties, Defendant Levesque has failed to show that he is entitled to judgment as a matter of law on the claim relating to the process afforded to Plaintiff in connection with his placement on High Security Status in May 2008. Accordingly, Defendants' motion for summary judgment is denied with respect to this claim.
The Second Circuit has held that an inmate's request for injunctive relief against correctional staff or conditions of confinement at a particular correctional institution becomes moot when the inmate is discharged or transferred to a different correctional institution. See Mawhinney v. Henderson, 542 F.2d 1, 2 (2d Cir.1976). See also Martin-Trigona v. Shiff, 702 F.2d 380, 386 (2d Cir.1983) ("The hallmark of a moot case or controversy is that the relief sought can no longer be given or is no longer needed."). Other courts concur with this result. See, e.g., McAlpine v. Thompson, 187 F.3d 1213, 1215 (10th Cir.1999) (noting that an inmate's claim for prospective injunctive relief regarding conditions of confinement is rendered moot upon his release from confinement).
Plaintiff has informed the Court that he is no longer incarcerated within the Connecticut Department of Correction. In his response to Defendants' argument that the injunctive relief is moot, Plaintiff indicated that after his release on special parole from his Connecticut sentence on September 28, 2012, he was taken into custody by Massachusetts Department of Corrections and is confined in a Massachusetts Correctional Institution in South Walpole, Massachusetts. He acknowledged that the term of special parole from the Connecticut sentence expired on September 15, 2013. Thus, at this point, Plaintiff is currently no longer on parole or within the custody of the Connecticut Department of Correction. As such, he is no longer on High Security Status. The Court therefore concludes that Plaintiffs request for injunctive relief pertaining to his removal from High Security Status by Connecticut prison officials is moot.
With regard to Plaintiffs request that the disciplinary report for attempted escape be expunged, the Court concludes that this request is not moot. If a jury were to determine that Defendants denied Plaintiff due process in connection with the issuance of the disciplinary report, the Court might award relief in the form of expungement of the report. Therefore, Defendants' motion for summary judgment is granted as to the request for injunctive relief regarding Plaintiffs removal from High Security Status and denied as to the request for injunctive relief pertaining to the expungement of the disciplinary report.
Defendants argue that they are entitled to qualified immunity on all of Plaintiffs claims. Defendants have the burden of proving the affirmative defense of qualified immunity in a motion for summary judgment or at trial. See Vincent v. Yelich, 718 F.3d 157, 166 (2d Cir.2013).
Qualified immunity "protects government officials `from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To determine if an official is entitled to qualified immunity, a court considers whether (1) the facts alleged or shown by the plaintiff state a violation of a statutory or constitutional right by the official and (2) the right was clearly established at the time of the challenged conduct. See Ashcroft v. al-Kidd, 563 U.S. ___, ___, 131 S.Ct. 2074, 2080 (2011) (citation omitted). A negative answer to either question means that immunity from monetary damages claims is appropriate. Pearson, 555 U.S. at 236. The Supreme Court has held that district courts have the discretion to choose which of the two prongs of the qualified immunity standard to decide first in view of the particular circumstances surrounding the case to be decided. See id. at 236.
In support of their qualified immunity argument, Defendants state that:
Defs.' Mem. Supp. [Doc. # 40] at 25-26. Defendants offer no further discussion. It is apparent that Defendants are arguing that they are entitled to qualified immunity under the first prong of the standard.
In summary, the Court has determined that there are outstanding issues of material fact with regard to Plaintiffs due process claims relating to the disciplinary hearing and the decision to place Plaintiff on High Security Status that preclude summary judgment. Specifically, there are material facts in dispute as to the adequacy of the assistance provided to Plaintiff by Defendant Kay in preparation for the disciplinary hearing, including securing witness testimony or witness statements and whether Defendant Otero's Summary Process Report provided an adequate written statement of the evidence relied on and the reasons for the disciplinary action.
With regard to the claim that Defendant Levesque denied Plaintiff procedural due process in connection with his placement on High Security Status, the Court has concluded that there are issues of material fact as to whether a liberty interest was created under the circumstances of this case by the language of the Administrative Directives governing an inmate's placement on High Security Status. Furthermore, the evidence presented by Defendant Levesque precludes a finding that he is entitled to judgment as a matter of law on the issue of whether Plaintiff received all the process that he was due in connection with Plaintiffs placement on High Security Status. Thus, Defendants are not entitled to summary judgment on the first prong of the qualified immunity standard.
Although summary judgment might still be appropriate if Defendants could prove that the constitutional rights in questions were not "clearly established" at the time of the violations, Defendants do not address the second prong of the qualified immunity standard. At the time of the disciplinary hearing and Plaintiffs placement on High Security Status, it was well established under Bell that a pretrial detainee could not be punished prior to being sentenced for a criminal conviction, that the requirements in Wolff applied to the disciplinary hearing of a pretrial detainee involving punitive sanctions or restraints, and that a liberty interest could be created under state law that would require the procedural due process protections set forth in Hewitt before a pretrial detainee could be designated to a restrictive classification status for administrative purposes. See Wolff 418 U.S. 539; Bell, 441 U.S. 520; Hewitt, 459 U.S. 469; Benjamin, 264 F.3d 175; Covino, 933 F.2d 128. Because Defendants do not offer any argument with regard to the second prong of the qualified immunity standard, the Court will not consider the issue any further at this time.
Defendants' Amended Motion [Doc. # 39] for Summary Judgment is GRANTED as to Plaintiffs request for injunctive relief removing him from High Security Status; as to Plaintiffs claim that he received insufficient notice of the disciplinary charge against him; and as to Plaintiffs claim that there was no evidence to support the guilty finding on the escape charge; and is DENIED as to the due process claims relating to Defendant Levesque's decision to place Plaintiff on High Security status; the adequacy of Defendant Kay's assistance in preparing Plaintiff for the hearing on the escape charge; Defendant Otero's failure to identify or describe the evidence relied on to support the guilty finding as to the escape charge; and Defendant Choinski's decision not to remedy the due process violations of Defendants Kay and Otero after becoming aware of them on appeal.
As discussed in Note six on page six, Defendants failed to address Plaintiffs claim that Defendants lacked the authority to discipline him because he was not in the custody of the Department of Correction at the time of his alleged escape. Therefore, this claim also will be included in the trial of this case.
This case is now ready for trial. It will be administratively closed to permit the process for appointment of pro bono counsel for trial to proceed. This case will be reopened ten days from the date of pro bono counsel's appearance, at which time an expeditious trial schedule will be set.
IT IS SO ORDERED.
Not Reported in F.Supp.2d, 2014 WL 1247992
Tyrone Houston, Brooklyn, NY, pro se.
Hon. Andrew M. Cuomo, Attorney General for the State of New York, Stephen M. Kerwin, Esq., Assistant Attorney General, of Counsel, for Defendants.
Hon. GLENN T. SUDDABY, District Judge.
On November 21, 2003, Plaintiff filed this action against twenty-two (22) individuals currently and/or formerly employed by the New York State Department of Correctional Services, at various correctional facilities. Generally, in his Complaint, Plaintiff alleges that his rights under the First and Eighth Amendments were violated when (1) certain Defendants had him transferred in retaliation for grievances that he had filed, (2) certain Defendants issued false misbehavior reports against him in retaliation for grievances that he had filed, and (3) certain Defendants deprived him of the opportunity to engage in outdoor exercise on two separate occasions. (See generally Dkt. No. 1.)
On September 29, 2006, District Judge Lawrence E. Kahn issued a Memorandum Decision and Order dismissing (1) Plaintiffs claims for equitable relief due to Plaintiffs release from incarceration, which mooted this claim, and (2) Plaintiffs claims against the CORC and all of the individual defendants in their official capacities on Eleventh Amendment grounds. (Dkt. No. 69.)
On January 4, 2008, Defendants filed a motion for summary judgment seeking dismissal of all of Plaintiffs claims against them. (Dkt. No. 80.) Generally, Defendants' motion is premised on the following three grounds: (1) certain of Plaintiffs claims are procedurally barred based upon his failure to exhaust available administrative remedies with regard to those claims (2) no reasonable factfinder could conclude that the issuance of misbehavior reports or the transfer to different facilities were caused by Plaintiffs filing of grievances; and (3) no reasonable factfinder could conclude that Plaintiff was subjected to cruel and unusual punishment based on being denied certain exercise opportunities. (Id.) On February 1, 2008, Plaintiff filed a response in opposition to Defendants' motion. (Dkt. No. 82.).
On March 11, 2009, Magistrate Judge Peebles issued a Report-Recommendation recommending that Defendants' motion be granted, because (1) certain of Plaintiffs claims were not properly exhausted, and (2) no reasonable factfinder could rule in Plaintiffs favor on any of his claims. (Dkt. No. 85.) Familiarity with the grounds of the Report-Recommendation is assumed in this Decision and Order. On March 20, 2009, Plaintiff filed his Objections to the Report-Recommendation. (Dkt. No. 86.)
Under Fed.R.Civ.P. 56, summary judgment is warranted if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In addition, "[the moving party] bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the . . . [record] which it believes demonstrate[s] the absence of any genuine issue of material fact." Celotex v. Catrett, 477 U.S. 317, 323-24 (1986). However, when the moving party has met this initial responsibility, the nonmoving party must come forward with "specific facts showing a genuine issue [of material fact] for trial." Fed.R.Civ.P. 56(e)(2).
A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the novmoving party." Anderson, 477 U.S. at 248. As a result, "[c]onclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir.1998) [citation omitted]; see also Fed.R.Civ.P. 56(e)(2). As the Supreme Court has famously explained, "[The nonmoving party] must do more than simply show that there is some metaphysical doubt as to the material facts" [citations omitted]. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).
Implied in the above-stated burden-shifting standard is the fact that, where a nonmoving party fails to adequately respond to a motion for summary judgment, a district court has no duty to perform an independent review of the record to find proof of a factual dispute-even if that nonmoving party is proceeding pro se.
After carefully reviewing all of the papers in this action, including Magistrate Judge Peebles's Report-Recommendation and Plaintiffs Objections thereto, the Court rejects each of Plaintiffs Objections, and agrees with each of the conclusions stated in the Report-Recommendation. (See Dkt. Nos 85, 86.) Magistrate Judge Peebles employed the proper legal standards, accurately recited the facts, and reasonably applied the law to those facts. (See Dkt. No. 86.)
In particular, Magistrate Judge Peebles correctly determined that Plaintiff failed to exhaust some of his claims, as required by the Prison Litigation Reform Act, in that he failed to file grievances, and/or pursue these claims to completion, before bringing the claims to federal court.
In his Objections to the Report-Recommendation, Plaintiff argues, inter alia, that his failures to fully exhaust his available administrative remedies with regard to certain of his claims was due to his being transferred to different facilities shortly after filing grievances, and that his efforts to inform Defendant Goord and Wardens of this issue "are sufficient to invoke the limited exceptions to the grievance requirement." (Dkt. No. 86.) In addition, Plaintiff appears to argue that the Report-Recommendation should not be adopted because of its failure to appreciate that the "personal involvement on [the] part of all Defendants [regarding his retaliation claims]" constitutes sufficient evidence of a conflict, thereby warranting denial of summary judgment. (Dkt. No. 86.)
With regard to Plaintiffs exhaustion claim, as an initial matter, the Court is not persuaded by Plaintiffs argument that his letters to Defendants Goord and Wardens created an exception to the exhaustion requirement.
For all of these reasons, the Court grants Defendants' motion for summary judgment.
DAVID E. PEEBLES, United States Magistrate Judge.
Plaintiff Tyrone Houston, a former New York State prison inmate who is proceeding pro se and in forma pauperis, has commenced this action pursuant to 42 U.S.C. § 1983, inter alia, alleging violation of his civil rights. In his complaint, plaintiff maintains that as a result of having been engaged in activity protected under the First Amendment to the United States Constitution, including filing grievances and commencement and pursuit of prior lawsuits, he was subjected by prison officials to a series of inter-prison transfers, the filing of false misbehavior reports, the imposition of unwarranted disciplinary confinement, and unfavorable program assignments. Plaintiff also complains of the deprivation of outdoor exercise, contending that the denial represented cruel and unusual punishment, in violation of his rights under the Eighth Amendment. Plaintiffs complaint seeks both equitable relief and the recovery of compensatory and punitive damages.
Currently pending before the court is a motion filed on behalf of the defendants seeking the entry of summary judgment dismissing each of plaintiffs claims. In support of their motion, defendants assert that certain of plaintiffs causes of action are procedurally barred, based upon his failure to exhaust available administrative remedies before filing suit, and that all of his claims are subject to dismissal on the merits, arguing that no reasonable factfinder could conclude that he was subjected to unlawful retaliation or cruel and unusual punishment. For the reasons set forth below, I recommend that defendants' motion be granted.
During the period of his incarceration, plaintiff filed a series of grievances and commenced suits against various prison workers. Plaintiff claims that as a direct result of that activity he experienced recrimination, in the form of issuance of several false misbehavior reports, leading to procedurally flawed disciplinary hearings and ensuing unlawful disciplinary confinement in various facility special housing units ("SHUs"). Plaintiff also attributes the various inter-prison transfers which he experienced, including in October of 2000 to the Mohawk Correctional Facility in lieu of a facility closer to his place of residence, to retaliatory animus, in further response to his grievances and lawsuits. Plaintiff additionally asserts that while in disciplinary confinement, he was subject to a DOCS policy under which SHU inmates are ineligible for participation in outdoor exercise. As a result, plaintiff was unable to participate in such outdoor activities for an aggregate period of 222 days, extending intermittently from September of 2001 until mid-2003.
Plaintiff commenced this action on November 21, 2003. Dkt. No. 1. As defendants, plaintiffs complaint names twenty-two present or past employees of the DOCS including the agency's commissioner, Glenn S. Goord, as well as the Central Office Review Committee (the "CORC"), which was sued as an entity, and asserts claims against the defendants in both their individual and official capacities.
On January 4, 2008, following the completion of pre-trial discovery, defendants moved for summary judgment dismissing plaintiffs complaint in its entirety. Dkt. No. 80. In their motion, defendants argue that portions of plaintiffs claims are procedurally barred, based upon his failure to exhaust available administrative remedies before commencing suit. Addressing the merits, defendants assert that plaintiffs claims lack factual support and that the record fails to contain evidence from which a reasonable factfinder could conclude that the adverse actions attributed by the plaintiff to retaliatory animus were in fact motivated by his protected activity. Defendants also contend that as a matter of law plaintiffs complaints regarding the denial of exercise do not implicate constitutional considerations. Plaintiff has since responded in opposition to defendants' motion in papers filed with the court on February 1, 2008. Dkt. No. 83.
Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, the entry of summary judgment is warranted when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10 (1986); Security Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir.2004). A fact is "material", for purposes of this inquiry, if it "might affect the outcome of the suit under the governing law . . . ." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir.2005) (citing Anderson). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.
When summary judgment is sought, the moving party bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue; the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n. 4, 106 S.Ct. at 2511 n. 4; Security Ins., 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material issue of fact for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. Though pro se plaintiffs are entitled to special latitude when defending against summary judgment motions, they must establish more than mere "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986); but see Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir.1999) (noting obligation of court to consider whether pro se plaintiff understood nature of summary judgment process). When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences from the facts, in a light most favorable to the nonmoving party. Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir.1998). Summary judgment is appropriately granted only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. See Building Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir.2002) (citation omitted); see also Anderson, 477 U.S. at 250, 106 S.Ct. at 2511 (summary judgment is appropriate only when "there can be but one reasonable conclusion as to the verdict").
The failure of a prisoner to satisfy the PLRA's exhaustion requirement is not jurisdictional, but instead gives rise to a defense which must affirmatively be raised by a defendant in response to an inmate suit.
"Proper exhaustion" requires a plaintiff to procedurally exhaust his or her claims by "compl[ying] with the system's critical procedural rules." Woodford, 548 U.S. at 95, 126 S.Ct. at 2388; see also Macias v. Zenk, 495 F.3d 37, 43 (2d Cir.2007) (citing Woodford). While placing prison officials on notice of a grievance through less formal channels may constitute claim exhaustion "in a substantive sense", an inmate plaintiff nonetheless must meet the procedural requirement of exhausting his or her available administrative remedies within the appropriate grievance construct in order to satisfy the PLRA. Macias, 495 F.3d at 43 (quoting Johnson, 380 F.3d at 697-98) (emphasis omitted).
Without question the plaintiff, who by all accounts has frequently availed himself of New York's IGP while in DOCS custody, has filed grievances raising many of the issues forming the basis for his complaint in this action. The record now before the court, however, contains no indication that this is true with regard to all of Houston's claims. The only grievance which plaintiff claims to have lodged addressing the question of his many, allegedly retaliatory inter-prison transfers, for example, was filed on March 17, 2003. See Complaint (Dkt. No. 1) ¶ 46 and pp. 109-111.
Plaintiffs complaint centers principally upon his claim of retaliation, which is comprised of two discrete components. First, plaintiff maintains that the issuance of various misbehavior reports, alleged by him to have contained false accusations, and resulting findings of guilt following disciplinary hearings, were prompted by his having engaged in protected activity, including the filing of grievances and lawsuits. Additionally, plaintiff asserts that for the same retaliatory reasons he was excessively transferred among various prison facilities, including into some at remote locations from his place of residence. In their motion, defendants contend that the record fails to disclose the basis upon which a reasonable fact-finder could conclude that the adverse actions upon which plaintiffs retaliation claims hinge were in fact prompted by retaliatory animus.
When adverse action is taken by prison officials against an inmate, motivated by the inmate's exercise of a right protected under the Constitution, including the free speech provisions of the First Amendment, a cognizable retaliation claim under 42 U.S.C. § 1983 lies. See Franco v. Kelly, 854 F.2d 584, 588-90 (2d Cir.1988). As the Second Circuit has repeatedly cautioned, however, such claims are easily incanted and inmates often attribute adverse action, including the issuance of misbehavior reports, to retaliatory animus; courts must therefore approach such claims "with skepticism and particular care." Dawes v. Walker, 239 F .3d 489, 491 (2d Cir.2001) (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983)), overruled on other grounds, Swierkiewicz v. Sorema NA., 534 U.S. 506 (2002); Davis v. Goord, 320 F.3d 346, 352 (2d Cir.2003) (same).
In order to state a prima facie claim under section 1983 for retaliatory conduct, a plaintiff must advance nonconclusory allegations establishing that: 1) the conduct at issue was protected; 2) the defendants took adverse action against the plaintiff; and 3) there was a causal connection between the protected activity and the adverse action-in other words, that the protected conduct was a "substantial or motivating factor" in the prison officials' decision to take action against the plaintiff. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576 (1977); Dillon v. Morano, 497 F.3d 247, 251 (2d Cir.2007); Dawes, 239 F.3d at 492 (2d Cir.2001). If the plaintiff successfully shoulders this burden, then to avoid liability the defendants must show by a preponderance of the evidence that they would have taken action against the plaintiff "even in the absence of the protected conduct." Mount Healthy, 429 U.S. at 287, 97 S.Ct. at 576. If taken for both proper and improper reasons, state action may be upheld if the action would have been taken based on the proper reasons alone. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996) (citations omitted).
It should also be noted that personal involvement of a named defendant in any alleged constitutional deprivation is a prerequisite to an award of damages against that individual under section 1983. Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citing Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir.1991) and McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1282 (1978)). In order to prevail on a section 1983 cause of action against an individual, a plaintiff must show some tangible connection between the constitutional violation alleged and that particular defendant. See Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). As is true of other types of claims, this principle applies to causes of action claiming unlawful retaliation. See Abascal v. Hilton, No. 04-CV-1401, 2008 WL 268366, at *10 (N.D.N.Y. Jan. 30, 2008) (Kahn, D.J. and Lowe, M.J.).
In cases involving allegations of retaliation based on the filing of allegedly false misbehavior reports, "[t]he difficulty lies in establishing a retaliatory motive." Barclay v. New York, 477 F.Supp.2d 546, 558 (N.D.N.Y.2007). Mere conclusory allegations of such retaliatory motivation will not suffice to survive a summary judgment motion; to establish retaliatory animus, which ordinarily must be shown circumstantially since direct evidence of such motivation is typically lacking, a plaintiff may cite such factors as "temporal proximity, prior good discipline, finding of not guilty at the disciplinary hearing, and statements by defendants as to their motives." Id. (citations omitted); see also Rivera v. Goord, 119 F.Supp.2d 327, 339 (S.D.N.Y.2000).
Plaintiffs complaint alleges the issuance of nine allegedly false misbehavior reports, each authored by a different corrections officer, between April 8, 2001 and June 9, 2003. Complaint (Dkt. No. 1) ¶¶ 13-29. In each instance plaintiff attributes the issuance to retaliatory motives, citing different protected activity, as follows:
The only evidence offered by the plaintiff which could potentially support the finding of a nexus between an instance of protected activity alleged in his complaint and a corresponding misbehavior report is the inference to be drawn from the relevant chronology. It is true such an inference, flowing from a closeness in proximity between protected activity and the issuance of a misbehavior report can in certain instances suffice to avoid summary judgment dismissal of a retaliation claim. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1995) citing Flaherty v. Coughlin, 713. F.2d 10, 14 (2d Cir.1983). As defendants note, however, in many circumstances this alone is insufficient to avoid summary judgment. Williams v. Goord, 111 F.Supp.2d 280, 290 (S.D.N.Y.2000); citing Ayers v. Stewart, 1996 WL 346049, at *I (2d Cir.1999); see also Ethier v. City of Cohoes, No. 1:02 Civ. 1584, 2006 WL 1007780, *7 (N.D.N.Y. April 18, 2006).
In this instance there are misbehavior reports issued which, taken in isolation, could give rise to a determination by a reasonable factfinder that the misbehavior report was issued in retaliation for protected activity. Taken together and considered in the light of all relevant facts, however, the record in this instance simply does not support the inference of such a connection. Prior to April of 2001, plaintiff had amassed a disciplinary record which included twelve separate findings of guilt in connection with alleged violations between October, 1993 and July, 27, 1999. See Kerwin Decl. (Dkt. No. 80-8) Exh. B. The allegedly retaliatory misbehavior reports now in dispute were issued over a two-year period by nine different corrections workers, while plaintiff was incarcerated at four different prison facilities. With the exception of defendant Hammill, each of the individuals authoring the subject misbehavior reports has submitted an affidavit expressly denying having done so prompted by retaliatory motivation.
The second aspect of plaintiffs retaliation claim concerns his frequent transfer among prisons.
While the discretion of prison officials to place and transfer prisoners is broad, it is not unfettered; when such a transfer is made out of purely retaliatory motivation, in response to constitutionally protected activity, a claim of unlawful retaliation under the First Amendment is established. Meriwhether v. Coughlin, 879 F.2d 1037, 1046 (2d Cir.1989); Hohman v. Hogan, 597 F.2d 490, 492-93 (2d Cir.1979).
In this instance plaintiffs allegations of retaliatory transfers appear to center upon defendants Knapp-David, LeClaire and Goord. See Complaint (Dkt. No. 1) ¶¶ 32, 35-42, 45 and pp. 18-19, 79-81, 88-89, 91-92, 94-95. Plaintiff apparently theorizes that these high ranking DOCS officials undertook a campaign of retaliatory transfers in order to punish him for his filing of grievances and lawsuits against various corrections workers assigned to the prison to which plaintiff was assigned.
In an affidavit given in support of defendants' motion, defendant Knapp-David, formerly the Director of Classification and Movement for the DOCS, explains the hub system implemented by the agency to designate the 63,500 inmates in the system and the process utilized to effectuate inmate transfers. Knapp-David Decl. (Dkt. No. 80-22) ¶¶ 2-7. That affidavit reflects that "transfers of inmates between hubs or transfer of maximum security inmates were approved and made by classification analysts on [Knapp-David's] staff when [she] was the Director of Classification and Movement . . . . As a routine matter [she] was not personally involved in inmate transfer decisions."
The last element of plaintiffs complaint is focused upon the alleged denial of the opportunity to engage in outdoor exercise while confined to S-Blocks and at Ogdensburg. Complaint (Dkt. No. 1) ¶¶ 47-48. Defendants maintain that they are entitled to the entry of summary judgment dismissing this claim as well.
The Eighth Amendment's prohibition of cruel and unusual punishment encompasses punishments that involve the "unnecessary and wanton infliction of pain" and are incompatible with "the evolving standards of decency that mark the progress of a maturing society." Estelle v. Gamble, 429 U.S. 97, 102, 104, 97 S.Ct. 285, 290, 291 (1976); see also Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1076, 1084 (1986) (citing, inter alia, Estelle ). While the Eighth Amendment does not mandate comfortable prisons, neither does it tolerate inhumane treatment of those in confinement; thus the conditions of an inmate's confinement are subject to Eighth Amendment scrutiny. Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 1976 (1994) (citing Rhodes v. Chapman, 452 U.S. 337, 349, 101 S.Ct. 2392, 2400 (1981)).
A claim alleging that prison conditions violate the Eighth Amendment must satisfy both an objective and subjective requirement-the conditions must be "sufficiently serious" from an objective point of view, and the plaintiff must demonstrate that prison officials acted subjectively with "deliberate indifference". See Leach v. Dufrain, 103 F.Supp.2d 542, 546 (N.D.N.Y.2000) (Kahn, J.) (citing Wilson v. Seiter, 501 U.S. 294, 297-98, 111 S.Ct. 2321, 2323-2324 (1991)); Waldo v. Goord, No. 97-CV-1385, 1998 WL 713809, at *2 (N.D.N.Y. Oct. 1, 1998) (Kahn, J. and Homer, M .J.); see also, generally, Wilson, 501 U.S. 294, 111 S.Ct. 2321. Deliberate indifference exists if an official "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837, 114 S.Ct. at 1978; Leach, 103 F.Supp.2d at 546 (citing Farmer); Waldo, 1998 WL 713809, at *2 (same).
Without question, prison inmates must be afforded a reasonable opportunity for exercise. Anderson v. Coughlin, 757 F.2d 33, 35 (2d Cir.1985); see also Williams v. Greifinger, 97 F.3d 699, 704 (2d Cir.1996) and Sostre v. McGinnis, 442 F.2d 178, 193 & n .25 (2d Cir.1971) (en banc), rev'd on other grounds, cert. denied Sostre v. Oswald, 404 U.S. 1049, 92 S.Ct. 11190 (1972). Not every deprivation of this opportunity, however, rises to a level of constitutional significance; instead, to sustain an Eighth Amendment claim a plaintiff must show that he or she was denied of all meaningful exercise for a substantial period of time. See Davidson v. Coughlin, 968 F.Supp. 121, 129 (S.D.N.Y.I 997). When determining whether this showing has been made, a court may consider such relevant factors as 1) the duration of the deprivation; 2) its extent; 3) the availability of other out-of-cell activities; 4) the opportunity for in-cell exercise; and 5) the justification offered for the deprivation. See Williams v. Goord, 111 F.Supp.2d 280, 291 (S.D.N.Y.2000).
While confined in facility SHU's, plaintiff was restricted to an exercise area measuring eight feet five inches in width, six feet nine inches in depth, and with the ceiling height of twelve feet seven inches. Complaint (Dkt. No. 1) ¶¶ 47-48; Prack Aff. (Dkt. No. 80-30) ¶ 5. SHU exercise areas have three solid walls, with a fourth side made of woven rod security screen through which inmates can view the open surroundings. Prack Aff. (Dkt. No. 80-30) ¶ 5.
The relevant portions of plaintiffs complaint and exhibits describe standard SHU conditions of confinement, which have been found to pass constitutional muster. See, e.g., Sostre v. McGinnis, 442 F.2d at (outdoor exercise for one hour in small enclosed yard open to the sky consistent with Eighth Amendment); Anderson, 757 F.2d at 35) (holding that Eighth Amendment not violated when inmates confined to special housing unit were allowed one hour per day of outdoor exercise-with no access to indoor exercise area); Young v. Scully, Nos. 91 Civ. 4332, 91 Civ. 4801, 91 Civ. 6769, 1993 WL 88144, at *5 (S.D.N.Y. March 22, 1993) (holding that Eighth Amendment was not violated when inmate was deprived of exercise for periods lasting several days); and Jordan v. Arnold, 408 F.Supp. 869, 876-877 (M.D.Pa.1976) (holding that Eighth Amendment not violated when inmates confined to special housing unit were allowed two hours of exercise per week). In this instance the court declines plaintiffs invitation to enter the arena of prison management, and instead recommends a finding that this portion of plaintiffs complaint fails to allege a cognizable constitutional deprivation.
The second element of plaintiffs cruel and unusual punishment claim relates to the denial of exercise for a period of thirteen days while awaiting a disciplinary hearing. See Complaint (Dkt. No. 1) ¶ 49 and p. 116. In order to sustain a constitutional claim this cause of action must assert an "unquestioned and serious deprivation of basic human needs" or "depri[vation] of the minimal civilized measure of life's necessities. Anderson, 757 F.2d at 35. The denial of exercise for a period of thirteen days is, relatively speaking, de minimis and does not rise to a level sufficient to support a constitutional deprivation. See Young v. Scully, 91 Civ. 4332, 91 Civ. 4801, 91 Civ. 6768 and 91 Civ. 6769, 1993 WL 88144, at *5 (deprivation of exercise over several days found to be de minimis); Davidson v. Coughlin, 968 F.Supp. 121, 128-131 (S.D.N.Y.1997) (holding that "temporary and sporadic deprivations of outdoor activity [for no longer than fourteen days in a row] do not fall below the minimum standards of the Eighth Amendment"); see also Trammell v. Keane, 338 F.3d 155 (2d Cir.2003); Branham v. Meachum, 77 F.3d 626, 630-31(2d Cir.1996) (finding that keeping inmate on lockdown and "full restraint" status without outdoor exercise for a period of approximately twenty-two days does not violate the Eighth Amendment).
The plaintiff, a frequent litigator and an inmate who over the period of his confinement with the DOCS accumulated an extremely poor disciplinary record, now complains alleging that nine misbehavior reports authored by nine separate corrections officers at four corrections facilities over a two year period, seven of which resulted of findings of guilt following disciplinary hearings, were issued out retaliatory motivation. Having carefully considered the record now before the court, I conclude no reasonable factfinder could agree that those misbehavior reports were issued for retaliatory purposes. Plaintiff further claims that various inter-prison transfers which he experienced over time were retaliatory, in response to his having filed grievances and lawsuits. Once again, the record fails to contain evidence from which a reasonable factfinder could draw this conclusion. Finally plaintiff contends that he was subjected to cruel and unusual punishment by the denial of adequate opportunities for exercise. Having carefully reviewed the record, I conclude that no reasonable factfinder could determine that he was in fact subjected to cruel and unusual punishment.
For these reasons, and additionally because certain of his claims are procedurally barred based upon his failure to exhaust available administrative remedies, I recommend dismissal of plaintiffs complaint in its entirety. It is therefore respectfully
RECOMMENDED that defendants' motion for summary judgment (Dkt. No. 80) be GRANTED, and that all plaintiffs claims in this action be DISMISSED.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court within TEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir.1993).
It is hereby ORDERED that the clerk of the court serve a copy of this Report and Recommendation upon the parties in accordance with this court's local rules.
Not Reported in F.Supp.2d, 2009 WL 890658
Valery LaTouche, Ossining, NY, pro se.
Eric T. Schneiderman, Attorney General for the State of New York, Krista A. Rock, Esq., Assistant Attorney General, of Counsel, Albany, NY, for Defendants.
NORMAN A. MORDUE, Chief Judge.
Magistrate Judge Treece issued a Report and Recommendation (Dkt. No. 60) recommending that defendants' motion be granted in part and denied in part. Specifically, Magistrate Judge Treece recommended awarding summary judgment dismissing the following: (1) plaintiffs claims for monetary relief against all defendants in their official capacity; (2) plaintiffs claims of medical indifference against defendant Fitzgerald; and (3) plaintiffs allegations of verbal harassment by defendant Mason. Magistrate Judge Treece also recommended denying defendants' motion for summary judgment on plaintiffs excessive force claims against defendants Tompkins, LaClair, Mason, Malark and Reyell and plaintiffs failure to protect claims against defendants Ludwig and King.
Defendants filed specific objections to portions of the Report and Recommendation arguing: (1) that the Magistrate Judge erred in "overlooking" plaintiffs failure to comply with Local Rule 7.1(a) (3); (2) that the Magistrate Judge erred when he failed to apply the Jeffreys exception as plaintiffs testimony was incredible as a matter of law; and (3) plaintiffs excessive force claims against defendant Reyell are subject to dismissal for lack of personal involvement. (Dkt. No. 61). Plaintiff does not object to the Report and Recommendation. (Dkt. No. 62).
In view of defendants' objections, pursuant to 28 U.S.C. § 636(b) (1)(c), this Court conducts a de novo review of these issues. The Court reviews the remaining portions of the Report-Recommendation for clear error or manifest injustice. See Brown v. Peters, 1997 WL 599355, *2-3 (N.D.N.Y.), af'd without op., 175 F.3d 1007 (2d Cir.1999); see also Batista v. Walker, 1995 WL 453299, at *1 (S.D.N.Y.1995) (when a party makes no objection to a portion of the report-recommendation, the Court reviews that portion for clear error or manifest injustice). Failure to object to any portion of a report and recommendation waives further judicial review of the matters therein. See Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993).
The submissions of pro se litigants are to be liberally construed. Nealy v. U.S. Surgical Corp., 587 F.Supp.2d 579, 583 (S.D.N.Y.2008). However, a pro se litigant is not relieved of the duty to meet the requirements necessary to defeat a motion for summary judgment. Id. (citing Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir.2003)). Where a plaintiff has failed to respond to a defendant's statement of material facts, the facts as set forth in defendant's Rule 7.1 statement will be accepted as true to the extent that (1) those facts are supported by the evidence in the record, and (2) the non-moving party, if he is proceeding pro se, has been specifically advised of the potential consequences of failing to respond to the movant's motion for summary judgment. Littman v. Senkowski, 2008 WL 420011, at *2 (N.D.N.Y.2008) (citing Champion v. Artuz, 76 F.3d 483, 486 (2d Cir.1996)).
Transcript of Plaintiffs Deposition at 13.
A verified complaint may be treated as an affidavit for the purposes of a summary judgment motion and may be considered in determining whether a genuine issue of material fact exists. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1995) (the plaintiff verified his complaint by attesting under penalty of perjury that the statements in the complaint were true to the best of his knowledge). Based upon the aforementioned colloquy, the Court deems plaintiffs complaint to be "verified" and as such, will treat the complaint as an affidavit. See Torres v. Caron, 2009 WL 5216956, at *3 (N.D.N.Y.2009). While plaintiff has not formally and technically complied with the requirements of Local Rule 7.1(a)(3), his opposition to defendants' motion contains sworn testimony. In light of his pro se status and the preference to resolve disputes on the merits rather than "procedural shortcomings", to the extent that plaintiffs "Statement of Facts" and assertions in the complaint do not contradict his deposition testimony, the Court will consider those facts in the context of the within motion. See Mack v. U. 814 F.2d 120, 124 (2d Cir.1987); see also Liggins v. Parker, 2007 WL 2815630, at *8 (N.D.N.Y.2007) (citing Lucas v. Miles, 84 F.3d 532, 535 (2d Cir.1996)). The Court has reviewed plaintiffs complaint and compared the allegations with the testimony presented at his deposition and adopts Magistrate Judge Treece's summary of the "facts" as presented by both parties.
Defendants argue that the Court should apply Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir.2005) and award summary judgment dismissing all claims of excessive force based upon plaintiffs implausible and contradictory claims.
Id. at 554 (internal citations and citations omitted).
Here, while plaintiff relies exclusively on his own testimony, for Jeffreys to apply, the testimony must also be "contradictory and incomplete". In this regard, defendants argue that plaintiffs allegations are contradicted by his prior accounts of the incident. Defendants cite to the record and argue that plaintiff told Fitzgerald that, "I hit the officer first" and that "I was hurt when I was subdued". Moreover, defendants point out that these statements were documented in an Inmate Injury Report executed by plaintiff.
Plaintiff does not deny making the aforementioned statements. However, in his deposition, plaintiff explained those discrepancies and testified:
Transcript of Plaintiffs Deposition at 53-54.
Defendants also argue that plaintiff cannot identify which individuals participated in the attack; that plaintiff's injuries are consistent with the brief use of force as described by defendants to subdue plaintiff; and that plaintiff's version is contradicted by defendants' affidavits. Magistrate Judge Treece found that plaintiff was able to identify some individuals involved in the assault which, "stands in stark contrast to the plaintiff in Jeffreys who was unable to identify any of the officers involved in the alleged assault". Upon review of the record, as it presently exists, the Court agrees and finds that plaintiffs testimony is not wholly conclusory or entirely inconsistent to warrant application of the Jeffreys exception. See Percinthe v. Julien, 2009 WL 2223070, at *7 (S.D.N.Y.2009) (the court rejected the defendants' argument that the plaintiffs claims were subject to dismissal for implausibility as his injuries did not reflect the attack that he described and his description of the incident changed over time holding that the plaintiffs testimony, "[did] not reach the level of inconsistency and lack of substantiation that would permit the Court to dismiss on these grounds").
Magistrate Judge Treece provided an extensive summary of the record and applicable law and found that the evidence did not support deviating from the established rule that issues of credibility are not be resolved on summary judgment. On review, the Court agrees with the Magistrate's recommendations and concludes that the Jeffreys exception does not apply. Accordingly, the Court accepts and adopts the Report and Recommendation on this issue.
Defendants argue that the Magistrate Judge erred when he failed to dismiss the complaint against Reyell on the grounds that he was not personally involved in the attack. Defendants claim that the "RRO erroneously cites plaintiffs declaration as stating that `it was defendant Reyell and another officer who removed the shirt'". Defendants claim that the declaration and complaint clearly state that, "Officer Rock orchestrated the removal of plaintiffs shirt".
In Paragraph 22 of plaintiff's declaration, he states:
In his deposition, plaintiff testified:
* * *
Transcript of Plaintiffs Deposition at 63-64.
Here, the Magistrate Judge stated that any inconsistency or discrepancy [in plaintiffs testimony], "go[es] to the weight . . . accorded to plaintiffs testimony". The Court agrees. Any discrepancies or inconsistencies in plaintiffs testimony are for a jury to assess. In the Second Circuit case of Fischl v. Armitage, the plaintiff/inmate alleged that he was assaulted in his cell by other inmates. Fischl, 128 F.3d at 54. The district court dismissed the plaintiff's complaint as against one defendant based upon "inconsistent statements". Id. The Second Circuit vacated the judgment of the district court holding:
Fischl, 128 F.3d at 56.
In this matter, without a credibility assessment of plaintiff, the record does not warrant an award of summary judgment. Accordingly, the Court adopts the Magistrate's recommendation and denies summary judgment on this issue.
It is therefore
Not Reported in F.Supp.2d, 2011 WL 1103045
Aldo Contreras Liberati, Philipsburg, PA, pro se.
Lemire, Johnson Law Firm, Gregg T. johnson, Esq, Mary E. Kissane, Esq, of Counsel, Malta, NY, for Defendant.
MAE A. D'AGOSTINO, District Judge.
In a Report-Recommendation and Order dated August 9, 2013, Magistrate Judge Peebles recommended that the Court grant Defendant's motion for summary judgment and dismiss Plaintiffs complaint. See Dkt. No. 31 at 2. Specifically, although Magistrate Judge Peebles found that questions of fact preclude granting the motion on exhaustion grounds, he found that the motion should be granted on the merits because no reasonable factfinder could conclude that Defendant violated Plaintiffs Eighth Amendment rights. See id. at 21. Neither party objected to Magistrate Judge Peebles Report-Recommendation and Order.
On February 5, 2012, Plaintiff was transferred to Clinton Correctional Facility ("Clinton") located in Dannemora, New York. See Dkt. No. 22-2 at 3. During the transfer, the corrections officers escorting Plaintiff called Clinton to notify them that Plaintiff was difficult and combative. See id. Upon arrival, the staff at Clinton prepared Plaintiff for housing by performing the routine intake and booking procedures. See id. at 4. Part of the normal procedure was to conduct a patdown search to detect any contraband that was not detected by the "BOSS" chair. See id. at 3. During the pat-down, Plaintiff disobeyed orders on at least two occasions when he refused to face and keep his hands on the wall. See id. at 4.
When the Clinton officers realized that Plaintiff had a second layer of pants underneath his jeans, they instructed him to remove them in a private changeout room. See id. at 4. After removal of the pants Plaintiff refused to remain on the wall, so they attempted to physically restrain him. See id. at 5. Upon hearing this commotion, Defendant entered the changeout room to assist with the situation. See id. He observed Plaintiff resisting the officers that were trying to restrain him. See id. Defendant administered "a single, one second, application of O.C. spray towards other officers to continue to gain control over Plaintiff and secure his hands." Id. After he administered the spray, Defendant placed it back in his holster and retreated to allow the other officers to gain control of Plaintiff. See id. Although Defendant remained in the room, he used no further force against him other than to place his feet near the Plaintiff to prevent him from putting his hands under his body. See id. at 5-6. When the Plaintiff was fully secured, Defendant left the room. See id. at 6. Plaintiff was then escorted to a holding cell to provide him an opportunity to calm down, decontaminate his eyes with eye wash and see medical staff at the facility. See id.
When a party files specific objections to a magistrate judge's report-recommendation, the district court makes a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). However when a party files "[g]eneral or conclusory objections or objections which merely recite the same arguments [that he presented] to the magistrate judge," the court reviews those recommendations for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16, 2011) (citations and footnote omitted). After the appropriate review, "the court may accept, reject, or modify, in whole or in part, the findings or recommendation made by the magistrate judge." 28 U.S.C. § 636(b) (1).
A court may grant a motion for summary judgment only if it determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir.1994) (citations omitted). When analyzing a summary judgment motion, the court "cannot try issues of fact; it can only determine whether there are issues to be tried." Id. at 36-37 (quotation and other citation omitted). Morever, it is well-settled that a party opposing a motion for summary judgment may not simply rely on the assertions in its pleadings. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed.R.Civ.P. 56(c)(e)).
In assessing the record to determine whether any such issues of material fact exist, the court is required to resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2502, 2513-14, 91 L.Ed.2d 202 (1986)) (other citations omitted). Where the non-movant either does not respond to the motion or fails to dispute the movant's statement of material facts, the court may not rely solely on the moving party's Rule 56.1 statement; rather the court must be satisfied that the citations to evidence in the record support the movant's assertions. See Giannullo v. City of N.Y., 322 F.3d 139, 143 n. 5 (2d Cir.2003) (holding that not verifying in the record the assertions in the motion for summary judgment "would derogate the truth-finding functions of the judicial process by substituting convenience for facts").
"[I]n a pro se case, the court must view the submissions by a more lenient standard than that accorded to `formal pleadings drafted by lawyers.' "Govan v. Campbell, 289 F.Supp.2d 289, 295 (N.D.N.Y.2007) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (other citations omitted). The Second Circuit has opined that the court is obligated to "make reasonable allowances to protect pro se litigants" from inadvertently forfeiting legal rights merely because they lack a legal education. Govan v. Campbell, 289 F.Supp.2d 289, 295 (N.D.N.Y.2007) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.1983)). However, this does not mean that a pro se litigant is excused from following the procedural requirements of summary judgment. See id. at 295 (citing Showers v. Eastmond, No. 00 CIV. 3725, 2001 WL 527484, *1 (S.D.N.Y. May 16, 2001)). Specifically, "a pro se party's `bald assertion,' completely unsupported by evidenced" is not sufficient to overcome a motion for summary judgment." Lee v. Coughlin, 902 F.Supp. 424, 429 (S.D.N.Y.1995) (citing Cary v. Crescenzi, 923 F.2d 18, 21 (2d Cir.1991)).
"A claim of cruel and unusual punishment in violation of the Eighth Amendment has two componentsone subjective, focusing on the defendant's motive for his conduct, and the other objective, focusing on the conduct's effect." Wright v. Goord, 554 F.3d 255, 268 (2d Cir.2009) (citing Hudson v. McMillian, 503 U.S. 1, 7-8 (1992); Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir.1999)). The subjective element is satisfied when plaintiff demonstrates that "the defendant had the necessary level of culpability, shown by actions characterized by wantonness in light of the particular circumstances surrounding the alleged conduct." Wright, 554 F.3d at 268 (internal quotation marks omitted). This inquiry looks at "whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." Hudson, 503 U.S. at 6 (quoting Whitley v. Albers, 475 U.S. 312, 320 (1986)).
The objective element examines the harm inflicted in relation to "contemporary standards of decency." Wright, 554 F.3d at 268 (quoting Hudson, 503 U.S. at 8). Malicious or sadistic harm caused by prison officials, notwithstanding the extent of injury, always violates the "contemporary standards of decency." Wright, 554 F.3d at 268-69 (quoting Hudson, 503 U.S. at 9). The amount of force is examined in proportion to the need reasonably perceived by prison officials and what, if anything, did they do to limit such force. See Hudson, 503 U.S. at 7; Whitley, 475 U.S. at 321; Romano v. Howarth, 998 F.2d 101, 105 (2d Cir.1993).
In the present matter, no evidence in the record suggests that Defendant, Gravelle used force maliciously or sadistically against Plaintiff. The record reveals that action was initiated against Plaintiff in response to his repeated failures to obey orders to keep his hands on the wall during the pat-down search. Defendant administered a single O.C. spray to assist the corrections officers and then moved away from Plaintiff, using no more force or spray than was necessary to control Plaintiff. The undisputed material facts make clear that no reasonable factfinder could conclude that Defendant used malicious or sadistic force against Plaintiff because such actions were taken in response to Plaintiffs failure to obey orders and the need to restore order. Although Plaintiffs claim that Defendant punched him in the head would constitute malicious or sadistic force in violation of Plaintiffs Eighth Amendment rights, there is no evidence in the record to support such claim. Therefore, Plaintiff fails to state a claim that Defendant violated his Eighth Amendment rights.
DAVID E. PEEBLES, United States Magistrate Judge.
Pro se plaintiff Aldo Conteras Liberati has commenced this action pursuant to 42 U.S.C. § 1983, alleging the deprivation of his rights under the United States Constitution. In his complaint, plaintiff alleges that, upon his arrival at the Clinton County Correctional Facility ("Clinton"), he suffered injuries arising from the use of excessive force by defendant Gravelle, a sergeant corrections officer stationed at Clinton at the times relevant to this action.
Currently pending before the court is defendant's motion for summary judgment on the merits, and based also on plaintiffs failure to exhaust the available administrative remedies and defendant's assertion that he is entitled to qualified immunity from suit. For the reasons set forth below, I recommend that defendant's motion be granted, and plaintiffs complaint be dismissed.
On February 5, 2012, plaintiff was transported to Clinton, located in Dannemora, New York, by United States immigration officers. Gravelle Decl. (Dkt. No. 22-2) at ¶ 8. Prior to his arrival at Clinton, immigration officers called Clinton to notify staff that, during the transport, plaintiff was difficult and combative. Id. Upon arriving at Clinton, facility staff began to prepare plaintiff for housing by subjecting him to routine intake and booking procedures. Id. at ¶ 10. This process included scanning plaintiff using a "BOSS" chair, which is designed to detect any metal contraband, as well as pat-searching him in a private room called the "changeout room" for any contraband not detected by the BOSS chair.
During the pat-search, plaintiff was directed by Clinton corrections officers to face and keep his hands on the wall. Gravelle Decl. (Dkt. No. 22-2) at ¶ 11. On at least two occasions, however, plaintiff disobeyed this order, and turned toward the officer conducting the search. Gravelle Decl. Exh. A (traditionally filed) at 0:33, 1:05. At some point during the search, the officer performing the patdown discovered that plaintiff was wearing a second layer of pants underneath his jeans. Gravelle Decl. (Dkt. No. 22-2) at ¶ 12. Plaintiff was then directed to move into a more private part of the changeout room and remove his jeans. Id. When plaintiff refused to remain on the wall after he removed his jeans, several Clinton corrections officers attempted to take physical control of the plaintiff to restrain him. Id.; Gravelle Decl. Exh. A (traditionally filed) at 1:11.
In plaintiffs verified complaint, he alleges that defendant punched him twice in the head. Compl. (Dkt. No. 1) at 8. He also contends that he did not file a grievance regarding these allegations due to the refusal of corrections officers at Clinton to provide him with the necessary form. Id. at 2.
Plaintiff commenced this action on May 14, 2012, by the filing of a complaint, motion to stay deportation, and application to proceed in forma pauperis ("IFP"). Dkt. Nos. 1-3. Plaintiffs complaint is comprised of eight claims, and names six defendants, including defendant Gravelle. See generally Compl. (Dkt. No. 1). On August 27, 2012, District Judge Mae A. D'Agostino issued a decision and order granting plaintiffs request to proceed IFP, denying his motion to stay deportation, and dismissing all claims with the exception of plaintiffs Eighth Amendment excessive force cause of action asserted solely against defendant Gravelle. Dkt. No. 9.
Now that discovery in this matter is closed, the remaining defendant, Sergeant Gravelle, has moved for the entry of summary judgment, dismissing plaintiffs remaining claim, pursuant to Rule 56 of the Federal Rules of Civil Procedure. Dkt. No. 22. Defendant argues that dismissal is appropriate based on (1) plaintiffs failure to exhaust the available administrative remedies at Clinton before commencing suit; (2) the record evidence, from which no reasonable factfinder could conclude that he used force that violated plaintiffs constitutional rights; and (3) his entitlement to qualified immunity from suit. See generally Def.'s Memo. of Law (Dkt. No. 22-7).
A. Plaintiffs Failure to Oppose Defendant's Motion
The court's local rules require that a party seeking summary judgment must submit a statement of material facts that it contends are undisputed by the record evidence. N.D.N.Y. L.R. 7.1(a)(3). The local rules also instruct the non-moving party to respond to the moving party's statement of material facts by specifically admitting or denying each of the facts listed in the moving party's statement. Id. The purpose underlying this rule is to assist the court in framing the issues and determining whether there exist any triable issues of fact that would preclude the entry of summary judgment. Anderson v. Dolgencorp of N. Y., Nos. 09-CV0360, 09-CV-0363, 2011 WL 1770301, at *1 n. 2 (N.D.N.Y. May 9, 2011) (Sharpe, J.).
In this instance, defendant Gravelle has complied with local rule 7.1(a)(3), providing a statement setting forth twenty-three facts as to which, he contends, there is no genuine triable issue. Def.'s L.R. 7.1(a)(3) Statement (Dkt. No. 22-6). Plaintiff, however, has failed to respond either to that statement, or to defendant's motion generally.
By its terms, local rule 7.1 provides, in part, that "[t]he Court shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." N.D.N.Y. L.R. 7.1(a)(3) (emphasis in original). Courts in this district have routinely enforced this provision in cases where a non-movant fails to properly respond. See, e.g., Elgamil v. Syracuse Univ., No. 99-CV-0611, 2000 WL 1264122, at *1 (N.D.N.Y. Aug. 22, 2010) (McCurn, J.) (listing cases). Undeniably, pro se litigants are entitled to some measure of forbearance when defending against summary judgment motions. Jemzura v. Public Svc. Comm'n, 961 F.Supp. 406, 415 (N.D.N.Y.1997) (McAvoy, C.J.). The deference owed to pro se litigants, however does not extend to relieving them of the ramifications associated with the failure to comply with the court's local rules. Robinson v. Delgado, No. 96-CV0169, 1998 WL 278264, at *2 (N.D.N.Y. May 22, 1998) (Pooler, J., adopting report and recommendation by Hurd, M.J.). Stated differently, "a pro se litigant is not relieved of his duty to meet the requirements necessary to defeat a motion for summary judgment." Latouche v. Tompkins, No. 09-CV-0308, 2011 WL 1103045, at *1 (N.D.N.Y. Mar. 23, 2011) (Mordue, C.J.).
Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, the entry of summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material facts and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir.2004). A fact is "material" for purposes of this inquiry, if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir.2005) (citing Anderson). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue, and the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n. 4; Sec. Ins. Co., 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material dispute of fact for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250.
When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences, in a light most favorable to the nonmoving party. Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir.1998). The entry of summary judgment is justified only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. Bldg. Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir.2002); see also Anderson, 477 U.S. at 250 (finding summary judgment appropriate only when "there can be but one reasonable conclusion as to the verdict").
The Prison Litigation Reform Act of 1996 ("PLRA"), Pub.L. No. 104-134, 110 Stat. 1321 (1996), which imposes several restrictions on the ability of prisoners to maintain federal civil rights actions, expressly requires that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a); see also Woodford v. Ngo, 548 U.S. 81, 84 (2006) ("Exhaustion is . . . mandatory. Prisoners must now exhaust all `available' remedies[.]"); Hargrove v. Riley, No. 04-CV-4587, 2007 WL 389003, at *5-6 (E.D.N.Y. Jan. 31, 2007) ("The exhaustion requirement is a mandatory condition precedent to any suit challenging prison conditions, including suits brought under Section 1983."). "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002).
The requirement that inmates exhaust administrative remedies before filing a lawsuit, however, is not a jurisdictional requirement. Richardson v. Goord, 347 F.3d 431, 434 (2d Cir.2003). Instead, failure to exhaust is an affirmative defense under the PLRA, and "inmates are not required to specifically plead or demonstrate exhaustion in their complaints."
There are grievance procedures in place and available to any Clinton inmate who desires to complain regarding prison conditions at the facility. Gravelle Decl. (Dkt. No. 22-2) at ¶ 17; Johnson Decl. Exh. B (Dkt. No. 22-5). In this case plaintiffs complaint, which is signed under penalty of perjury, and thus has the same force and effect as an affidavit,
In this instance, although there is no record evidence to suggest that grievance procedures at Clinton were not fully available to plaintiff while he was at the facility, plaintiff does allege that corrections officers stationed at the facility refused to provide him with a grievance form. Under ordinary circumstances, this could justify a recommendation to the assigned district judge that she hold a hearing to develop plaintiffs allegation regarding special circumstances pursuant to Messa v. Goord, 652 F.3d 305 (2d Cir.2011). However, as is discussed more fully below, because I recommend that defendant's motion be granted based on a finding that no reasonable factfinder could conclude that defendant violated plaintiffs rights, a determination of whether plaintiff should be precluded from bringing this action based on a failure to exhaust administrative remedies is not necessary.
In support of defendant's motion, defendant Gravelle argues that there is no record evidence to support the allegation that he punched plaintiff, and that the record instead supports a finding that defendant's use of force against plaintiff did not violate his Eighth Amendment rights. Def.'s Memo. of Law (Dkt. No. 22-7) at 8-11.
Plaintiffs excessive force claim is grounded in the Eighth Amendment, which prohibits punishment that is "incompatible with `the evolving standards of decency that mark the progress of a maturing society,' or involve[s] the unnecessary and wanton infliction of pain[.]'" Estelle v. Gamble, 429 U.S. 97, 102-03 (1976) (quoting Trop v. Dulles, 356 U.S. 86, 100-01 (1958) and Gregg v. Georgia, 428 U.S. 153, 169-73 (1976) (internal citations omitted)). While the Eighth Amendment "`does not mandate comfortable prisons,' neither does it permit inhumane ones." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981)).
Additionally, courts must bear in mind that "[n]ot every push or shove, even if it later may seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights.' Romano v. Howarth, 998 F.2d 101, 105 (2d Cir.1993) (internal quotation marks omitted); see also Griffin, 193 F.3d at 91. "The Eighth Amendment's prohibition of cruel and unusual punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind.' Hudson, 503 U.S. at 9-10 (internal quotation marks omitted).
"The objective component [of the excessive force analysis] . . . focuses on the harm done, in light of `contemporary standards of decency." Wright, 554 F.3d at 268 (quoting Hudson, 503 U.S. at 8); see also Blyden, 186 F.3d at 263 (finding the objective component "context specific, turning upon `contemporary standards of decency"). In assessing this component, a court must ask whether the alleged wrongdoing is objectively harmful enough to establish a constitutional violation. Wilson v. Seiter, 501 U.S. 294, 303 (1991), accord Hudson, 503 U.S. at 8; see also Wright, 554 F.3d at 268. "But when prison officials use force to cause harm maliciously and sadistically, `contemporary standards of decency always are violated. This is true whether or not significant injury is evident." Wright, 554 F.3d at 268-69 (quoting Hudson, 503 U.S. (alterations omitted)). The extent of an inmate's injury is but one of the factors to be considered in determining whether a prison official's use of force was "unnecessary and wanton" because "injury and force . . . are imperfectly correlated[.]" Wilkins, 559 U.S. at 38. In addition, courts consider the need for force, whether the force was proportionate to the need, the threat reasonably perceived by the officials, and what, if anything, the officials did to limit their use of force. Hudson, 503 U.S. at 7; Whitley, 475 U.S. at 321; Romano, 998 F.2d at 105.
In this case, although plaintiffs complaint alleges that defendant Gravelle punched him twice in the head, there is no record evidence to support this claim. Compl. (Dkt. No. 1) at 8. Instead, the record reveals that defendant used O.C. spray against plaintiff on one occasion during the course of an altercation with corrections officers, while those officers attempted to gain control over him. The video recording submitted in support of defendant's motion shows defendant coming into the changeout room after plaintiff was already on the ground with several officers trying to restrain him. Defendant quickly applied the O.C. spray to plaintiffs face, and then moved away from plaintiff and the other officers. According to defendant, corrections officers initiated the use of force against plaintiff as a result of his failure to obey orders to keep his hands on the wall during the pat-search. Defendant's use of force lasted a matter of seconds, and he sprayed plaintiff only to assist corrections officers in restraining him. In addition, although defendant states that plaintiff was seen by medical staff at Clinton following the incident, nothing in the record, including plaintiffs complaint, indicates that plaintiff suffered a physical injury as a result of the incident. In light of all of this record evidence, I find that no reasonable factfinder could conclude that defendant used force against plaintiff maliciously or sadistically, or for any other purpose than restoring order. See Kopy v. Howard, No. 07-CVO417, 2010 WL 3808677, at *3 (N.D.N.Y. Aug. 11, 2010) (Treece, M.J.), report and recommendation adopted by 2010 WL 3807166 (N.D .N.Y. Sept. 21, 2010) (Hurd, J.) (granting summary judgment where the record evidence demonstrated that the defendants used pepper spray on the plaintiff only once after plaintiff was repeatedly ordered to return to his cell and plaintiff suffered no injuries). Accordingly, I recommend that defendant's motion be granted.
In defendant's motion, he challenges the legal sufficiency of plaintiffs excessive force claim. Because the record contains a dispute of material fact as to whether plaintiffs failure to exhaust available administrative remedies may be excused, defendant is not entitled to dismissal on that basis. However, after a careful review of the record evidence, including a video recording of defendant's use of force, I find that no reasonable factfinder could conclude that defendant violated plaintiffs Eighth Amendment rights.
RECOMMENDED that defendant's motion for summary judgment (Dkt. No. 22-7) be GRANTED, and that plaintiffs complaint be DISMISSED in its entirety.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 86 (2d Cir.1993).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.
All
Not Reported in F.Supp.2d, 2013 WL 5372872
James Murray, Malone, NY, pro se.
Bosman Law Office, AJ Bosman, Esq., of Counsel, Rome, NY, for Plaintiff.
Hon. Andrew M. Cuomo, Attorney General for the State of New York, Timothy Mulvey, Esq., James Seaman, Esq., Assistant Attorneys General, of Counsel, Albany, NY, for Defendants.
Hon. GLENN T. SUDDABY, District Judge.
The Prison Litigation Reform Act of 1995 ("PLRA") requires that prisoners who bring suit in federal court must first exhaust their available administrative remedies: "No action shall be brought with respect to prison conditions under § 1983 . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e. The PLRA was enacted "to reduce the quantity and improve the quality of prisoner suits" by "afford[ing] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case." Porter v. Nussle, 534 U.S. 516, 524-25, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). In this regard, exhaustion serves two major purposes. First, it protects "administrative agency authority" by giving the agency "an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court, and it discourages disregard of the agency's procedures." Woodford v. Ngo, 548 U.S. 81, 89, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). Second, exhaustion promotes efficiency because (a) "[c]laims generally can be resolved much more quickly and economically in proceedings before an agency than in litigation in federal court," and (b) "even where a controversy survives administrative review, exhaustion of the administrative procedure may produce a useful record for subsequent judicial consideration." Woodford, 548 U.S. at 89. "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter, 534 U.S. at 532.
In accordance with the PLRA, the New York State Department of Correctional Services ("DOCS") has made available a well-established inmate grievance program. 7 N.Y.C.R.R. § 701.7. Generally, the DOCS Inmate Grievance Program ("IGP") involves the following three-step procedure for the filing of grievances. 7 N.Y.C.R.R. §§ 701.5, 701.6(g), 701.7.
It is important to note that these procedural requirements contain several safeguards. For example, if an inmate could not file such a complaint within the required time period after the alleged occurrence, he or she could apply to the facility's IGP Supervisor for an exception to the time limit based on mitigating circumstances. If that application was denied, the inmate could file a complaint complaining that the application was wrongfully denied.
It is also important to note that DOCS has a separate and distinct administrative appeal process for inmate misbehavior hearings:
Generally, if a prisoner has failed to follow each of the required three steps of the above-described grievance procedure prior to commencing litigation, he has failed to exhaust his administrative remedies. Ruggiero v. County of Orange, 467 F.3d 170, 175 (2d Cir.2006) (citing Porter, 534 U.S. at 524). However, the Second Circuit has held that a three-part inquiry is appropriate where a defendant contends that a prisoner has failed to exhaust his available administrative remedies, as required by the PLRA. Hemphill v. State of New York, 380 F.3d 680, 686, 691 (2d Cir.2004), accord, Ruggiero, 467 F.3d at 175. First, "the court must ask whether [the] administrative remedies [not pursued by the prisoner] were in fact `available' to the prisoner." Hemphill, 380 F.3d at 686 (citation omitted). Second, if those remedies were available, "the court should . . . inquire as to whether [some or all of] the defendants may have forfeited the affirmative defense of non-exhaustion by failing to raise or preserve it . . . or whether the defendants' own actions inhibiting the [prisoner's] exhaustion of remedies may estop one or more of the defendants from raising the plaintiff's failure to exhaust as a defense." Id. [citations omitted]. Third, if the remedies were available and some of the defendants did not forfeit, and were not estopped from raising, the non-exhaustion defense, "the Court should consider whether `special circumstances' have been plausibly alleged that justify the prisoner's failure to comply with the administrative procedural requirements." Id. [citations and internal quotations omitted].
With regard to this third inquiry, the Court notes that, under certain circumstances, an inmate may exhaust his administrative remedies by raising his claim during a related disciplinary proceeding. Giano v. Goord, 380 F.3d 670, 678-79 (2d Cir.2004); Johnson v. Testman, 380 F.3d 691, 697 (2d Cir.2004).
Second, the Court recognizes that there is case law from within the Second Circuit supporting the view that the exhaustion issue is one of fact, which should be determined by a jury, rather than by the Court.
As an initial matter, Plaintiff argues that he exhausted his administrative remedies regarding the claims at issue in this action, by filing a grievance regarding those claims, and then appealing the non-response to that grievance all the way to CORC. Because the Court rejects this argument based on the evidence adduced at the hearing, the Court proceeds to an analysis of the three-step exhaustion inquiry established by the Second Circuit.
Here, after carefully considering the evidence submitted at the hearing in this action on March 1, 2010, the Court finds that administrative remedies were "available" to Plaintiff during the time in question. The Court makes this finding for the following four reasons.
First, in his sworn Complaint (which has the force and effect of an affidavit), Plaintiff stated, "Yes," in response to the question, "Is there a prisoner grievance procedure at this facility." (Dkt. No. 1, ¶ 4.a.)
After carefully considering the evidence submitted at the hearing in this action on March 1, 2010, the Court finds that Defendants did not forfeit the affirmative defense of non-exhaustion by failing to raise or preserve it, or by taking actions that inhibited Plaintiff's exhaustion of remedies. For example, Defendants' Answer timely asserted this affirmative defense. (Dkt. No. 35, ¶ 17.) Moreover, Plaintiff failed to offer any credible evidence at the hearing that Defendants in any way interfered with Plaintiff's ability to file grievances during the time in question. (Hearing Tr. at 127-34, 157-58, 169-70.) Generally, a defendant in an action may not be estopped from asserting the affirmative defense of failure to exhaust administrative remedies based on the actions (or inactions) of other individuals.
(1) The facility's "failure to provide grievance deposit boxes, denial of forms and writing materials, and a refusal to accept or forward plaintiff's appeals-which effectively rendered the grievance appeal process unavailable to him." Sandlin v. Poole, 575 F.Supp.2d 484, 488 (W.D.N.Y.2008) (noting that "[s]uch facts support a finding that defendants are estopped from relying on the exhaustion defense, as well as "special circumstances" excusing plaintiff's failure to exhaust");
(2) Other individuals' "threats [to the plaintiff] of physical retaliation and reasonable misinterpretation of the statutory requirements of the appeals process." Clarke v. Thornton, 515 F.Supp.2d 435, 439 (S.D.N.Y.2007) (noting also that "[a] correctional facility's failure to make forms or administrative opinions "available" to the prisoner does not relieve the inmate from this burden."); and
(3) When plaintiff tries "to exhaust prison grievance procedures[, and] although each of his efforts, alone, may not have fully complied, together his efforts sufficiently informed prison officials of his grievance and led to a thorough investigation of the grievance." Hairston v. LaMarche, 05-CV-6642, 2006 WL 2309592, at *8 (S.D.N.Y. Aug.10, 2006).
After carefully considering the issue, the Court finds that there exists, in this action, no "special circumstances" justifying Plaintiff's failure to comply with the administrative procedural requirements. Construed with the utmost of special leniency, Plaintiff's hearing testimony, and his counsel's cross-examination of Defendants' witnesses, raise the specter of two excuses for not having exhausted his available administrative remedies before he (allegedly) mailed his Complaint in this action on August 14, 2003: (1) that exhaustion was not possible because of the administrative procedures that DOCS has implemented regarding inmate grievances; and/or (2) that an unspecified number of unidentified corrections officers (who are not Defendants in this action) somehow interfered with the delivery of his grievance and appeals. For example, Plaintiff testified at the exhaustion hearing that he handed his grievance and appeals to various corrections officers making rounds where he was being housed, and that, if his grievance and/ or appeals were never received, it must have been because his letters were not properly delivered. (Hearing Tr. at 126-36.)
With regard to these excuses, the Court finds that, while these excuses could constitute special circumstances justifying an inmate's failure to exhaust his available administrative remedies in certain situations,
Prince Pilgrim, Attica, NY, pro se.
Hon. Andrew M. Cuomo, Attorney General for the State of New York, Aaron M. Baldwin, Esq., Assistant Attorney General, of Counsel, Albany, NY, for Defendant.
RANDOLPH F. TREECE, United States Magistrate Judge.
In addition, Plaintiff alleges that Artus failed to protect him from unconstitutional retaliation, his due process rights were violated during the course of several disciplinary hearings, and the penalties imposed as a result of his disciplinary convictions constituted "cruel and unusual punishment" in violation of the Eighth Amendment. Id.
Presently before the Court for a Report— Recommendation is Defendant's Motion for Summary Judgment. Dkt. No. 36. Since the filing of Defendant's Motion, the Court has granted Plaintiff four separate extensions of time to file a response in opposition to the Motion. See Dkt. No. 46, Order, dated Aug. 20, 2009, at p. 1 (cataloguing prior extensions). The final extension granted Plaintiff until September 4, 2009, to file a response, and warned Plaintiff that
For the reasons that follow, we recommend that Defendant's Motion be
The following facts were derived mainly from the Defendant's Statement of Material Facts, submitted in accordance with N.D.N.Y.L.R. 7.1, which were not, in their entirety, specifically countered nor opposed by Plaintiff. See N.D.N.Y.L.R. 7.1(a)(3) ("The Court shall deem admitted any facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." (emphasis in original)). In any event, most, if not all, of the material facts are not in dispute, but rather, the issue is whether those facts give rise to constitutional and statutory violations.
On November 18, 2006, Plaintiff was given a direct order by Corrections Officer ("C.O.") A. Appleby to remove his dreadlocks as per DOCS' policy, which allows only inmates of the Rastafarian faith to wear dreadlocks. Id. at ¶ 18; Dkt. No. 47-1, Prince Pilgrim Decl., dated Aug. 31, 2009 (hereinafter "Pl.'s Decl."), at ¶ 14. DOCS' hair policy is based on DOCS Directive # 4914, entitled "Inmate Grooming Standards," and relevant decisions from the Central Office Review Committee ("CORC"), which is the final appellate body for inmate grievances and whose decisions have the same effect as directives. Dkt. No. 36-6, Mark Leonard Decl., dated Apr. 30, 2009, at ¶ 59. DOCS Directive # 4914 allows inmates to wear long hair
On December 19, 2006, C.O.C. Strong observed Plaintiff, who was on his way to an NOI meeting, with his hair in dreadlocks that extended down to the middle of his back. Id. at ¶ 17; Pilgrim Decl. at ¶¶ 17-18. C.O. Strong issued Plaintiff a Misbehavior Report (hereinafter "First MR"), charging him with Refusal to Obey a Direct Order (Rule 106.10). Def.'s 7.1 Statement at ¶ 19. At a Tier II Hearing that concluded on December 27, 2006, Lieutenant ("Lt.") Boyle found Plaintiff guilty of the charge and assessed him a penalty of thirty (30) days keeplock,
On February 20, 2007, Plaintiff was issued another Misbehavior Report (hereinafter "Second MR") by C.O. Appleby for again failing to cut his dreadlocks and thereby refusing to comply with both a direct order and a prior hearing disposition. Id. at ¶¶ 22-23; Pl.'s Decl. at ¶ 21. A Tier II Hearing was conducted by Lt. Lucia, who found Plaintiff guilty of Refusal to Obey a Direct Order (Rule 106.10) and Noncompliance with a Hearing Disposition (Rule 181 .10), and assessed Plaintiff thirty (30) days keeplock, with corresponding loss of recreation, commissary, package and phone privileges, and an additional fifteen (15) days keeplock and loss of privileges invoked from a previous disciplinary hearing determination. Def.'s 7.1 Statement at ¶¶ 23-24; Pl.'s Decl. at ¶ 25. Artus referred Plaintiff's appeal of those convictions to Captain Bell, who reviewed and affirmed the hearing officer's decision on March 5, 2007. Def.'s 7.1 Statement at ¶ 25; Pl.'s Decl. at ¶ 26. By letters dated March 14, 2007, and March 21, 2007, Plaintiff requested a discretionary review of the March 1, 2007 Tier II Hearing disposition, raising issues as to whether or not he should have been credited for time spent in pre-hearing confinement. Def.'s 7.1 Statement at ¶ 26. Artus delegated that petition to G. Haponik, First Deputy Superintendent, who denied the requested relief. Id. at ¶ 27.
On August 1, 2007, Plaintiff was issued another Misbehavior Report (hereinafter "Third MR") by C.O. J. Way for failure to comply with a prior direct order to cut his hair. Id. at ¶ 28. Along with Refusal to Obey a Direct Order (Rule 106.10), Plaintiff was charged with Harassment (Rule 107.11) for using obscene language during his confrontation with C.O. Way, and Inmate Grooming (Rule 110.33) for failure to tie back his long hair. Id. at ¶ 31. Lt. Miller conducted a Tier II Hearing on August 1, 2007, at which time Plaintiff was found guilty of refusing a direct order and having unfastened long hair, but not guilty of harassment. Id. at ¶ 32. Plaintiff was penalized with thirty (30) days keeplock and loss of commissary, package, and phone privileges for the same amount of time. Id. at ¶ 33. Artus referred Plaintiff's appeal of those convictions to Captain Bell, who reviewed and affirmed the hearing officer's decision. Id. at ¶ 34.
On September 12, 2007, C.O. Edwards issued Plaintiff a fourth Misbehavior Report (hereinafter "Fourth MR") concerning his dreadlocks. Id. at ¶¶ 35-36. The Fourth MR charged Plaintiff with Refusal to Obey a Direct Order (Rule 106.10) and making a False Statement (Rule 107.20), the latter charge owing to Plaintiff's alleged statement that he was a Rastafarian when, in fact, he was registered as an NOI member. Id. at ¶¶ 36-37; Pl.'s Decl. at ¶ 34. A Tier II Hearing was held on September 17, 2007, before Lt. Miller, who found Plaintiff guilty on both charges and sentenced him to thirty (30) days keeplock with concurrent loss of commissary, package, and phone privileges. Def.'s 7.1 Statement at ¶ 38.
On or about November 26, 2007, Plaintiff filed another grievance with the IGP, dated November 17, 2007, complaining that DOCS' policy regarding dreadlocks did not comply with DOCS Directive # 4914 and violated his First Amendment rights. Id. at ¶ 48. That grievance was consolidated with similar grievances filed by other inmates at Clinton who were given similar orders and/ or warnings regarding their hair. Id. at ¶ 49; Pl.'s Decl. at ¶ 36. After conducting an investigation, First Deputy Superintendent W.F. Hulihan issued a determination, dated December 19, 2007, stating that "DOCS policy is that registered Rastafarian religion inmates are the only inmates allowed to have dreadlock hairstyles . . . . This issue has been addressed in numerous CORC decisions . . . . Based on DOCS established policy and CORC decisions, no compelling evidence has been submitted to support a change in policy." Def.'s 7.1 Statement at ¶ 52. Plaintiff and the other grievants appealed Hulihan's determination to CORC, which upheld the decision. Id. at ¶ 53.
Pursuant to FED. R. CIV. P. 56(c), summary judgment is appropriate only where "there is no genuine issue as to any material fact and [the moving party] is entitled to judgment as a matter of law." The moving party bears the burden to demonstrate through "`pleadings, depositions, answers to interrogatories, and admissions on file, together with [ ] affidavits, if any,'" that there is no genuine issue of material fact. F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir.1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). "When a party has moved for summary judgment on the basis of asserted facts supported as required by [Federal Rule of Civil Procedure 56(e)] and has, in accordance with local court rules, served a concise statement of the material facts as to which it contends there exist no genuine issues to be tried, those facts will be deemed admitted unless properly controverted by the nonmoving party." Glazer v. Formica Corp., 964 F.2d 149, 154 (2d Cir.1992).
To defeat a motion for summary judgment, the nonmovant must "set out specific facts showing [that there is]a genuine issue for trial," and cannot rest "merely on allegations or denials" of the facts submitted by the movant. FED. R. CIV. P. 56(e); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir.2003) ("Conclusory allegations or denials are ordinarily not sufficient to defeat a motion for summary judgment when the moving party has set out a documentary case."); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir.1994). To that end, sworn statements are "more than mere conclusory allegations subject to disregard . . . they are specific and detailed allegations of fact, made under penalty of perjury, and should be treated as evidence in deciding a summary judgment motion" and the credibility of such statements is better left to a trier of fact. Scott v. Coughlin, 344 F.3d at 289 (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983) and Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1995)).
When considering a motion for summary judgment, the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir.1998). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir.1994). Furthermore, where a party is proceeding pro se, the court must "read [his or her] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994), accord, Soto v. Walker, 44 F.3d 169, 173 (2d Cir.1995). Nonetheless, mere conclusory allegations, unsupported by the record, are insufficient to defeat a motion for summary judgment. See Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir.1991).
The Second Circuit has held that "personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (citations omitted). Moreover, "the doctrine of respondeat superior cannot be applied to section 1983 actions to satisfy the prerequisite of personal involvement." Kinch v. Artuz, 1997 WL 576038, at *2 (S.D.N.Y. Sept. 15, 1997) (citing Colon v. Coughlin, 58 F.3d 865, 874 (2d Cir.1995) & Wright v. Smith, 21 F.3d at 501) (further citations omitted). Thus, "a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the constitution." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1948 (2009).
Nonetheless, if a plaintiff seeks to bring a § 1983 action for supervisory liability, liability on the part of the supervisor may exist
Hernandez v. Keane, 341 F.3d 137, 145 (2d Cir.2003) (citing Colon v. Coughlin, 58 F.3d at 873) (further citations omitted).
In this case, Plaintiff does not allege that Defendant Artus directly participated in any of the alleged harassment, retaliation, due process violations, nor disciplinary actions that were taken against him. Rather, Plaintiff hangs his hat on the second of the five aforementioned ways in which supervisory liability may attach: "failure to remedy a wrong after being informed through a report or appeal." Id. at 145. Plaintiff asserts that he sent several grievances, complaint letters, and appeals of his disciplinary convictions to Artus, who was thereby made aware of the allegedly unconstitutional policy regarding dreadlocks and the harassments and retaliatory misbehavior reports that were being filed against Plaintiff, but that Artus nonetheless failed to intervene on Plaintiff's behalf. The record establishes that Plaintiff appealed to Artus at least three of the four Tier II Hearing dispositions that are relevant to this lawsuit, and that he filed several grievances and complaint letters with Artus.
In this case, Artus asserts that he referred each and every one of Plaintiff's appeals and grievances to subordinate staff members for review, investigation, and appropriate action. Artus Decl. at ¶ 13. The documentary record confirms that contention. Artus referred Plaintiff's appeals of his convictions on the First, Second, and Third MRs to Captain Bell, who reviewed and affirmed the dispositions rendered at the corresponding Tier II Hearings. Id., Exs. B-D, Interdep't Comm'ns, dated Jan. 3, 2006, Mar. 5, 2007, & Aug. 16, 2007. In addition, all of the grievances, complaints, and appeals of grievances mentioned in Plaintiff's Response to Defendant's Motion were forwarded by Artus to staff members in order to investigate, render a decision, and take appropriate actions. Artus Decl. at ¶ 13; Dkt. No. 47, Prince Pilgrim Aff., dated Aug. 31, 2009 (hereinafter "Pl.'s Aff.") at p. 5. Namely, Plaintiff's grievances dated November 9, 2006, November 21, 2006, November 28, 2006, February 20, 2007, July 1, 2007, August 1, 2007, and October 5, 2007,
Moreover, even if we were to look past Plaintiff's failure to demonstrate Artus's personal involvement, we would still find all of his constitutional claims (again with the notable exception of his First Amendment religious expression claim) to be without merit.
In his Complaint, Plaintiff appears to make a due process claim based on "prejudicial" hearings and other unspecified procedural violations that occurred during those Hearings. Compl. at ¶ 10; Pl.'s Aff. at ¶ 15; see also Pl.'s Decl. at ¶ 24 (stating that the proceedings were "hollow"). This claim is wholly conclusory. Plaintiff does not identify which of the four Tier II Disciplinary Hearings was conducted in a prejudicial manner, nor does he describe any of the alleged procedural violations that occurred. See Bell. Atl. Corp. v. Twombly, 550 U.S. at 545 (stating that a valid claim must have enough factual allegations "to raise a right to relief above the speculative level"). In short, Plaintiff has not stated a plausible due process claim.
Even if we were to look past the conclusory nature of Plaintiff's due process claim, we would still recommend dismissal of such claim. In order to state a procedural due process claim pursuant to the Fourteenth Amendment, an inmate must first establish that he enjoys a protected liberty interest. Arce v. Walker, 139 F.3d 329, 333 (2d Cir.1998) (citing Kentucky Dep't of Corrs. v. Thompson, 490 U.S. 454, 460 (1989)). The Supreme Court held in Sandin v. Conner that state created liberty interests shall be limited to those deprivations which subject a prisoner to "atypical and significant hardship . . . in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995).
Here, Plaintiff alleges that he was sentenced to and served three separate thirty (30) day and one forty-five (45) day period of keeplock with reduced privileges, but alleges no additional aggravating circumstances present during that confinement. Courts in this Circuit have held that such periods of keeplock, absent additional egregious circumstances, are not "atypical and significant" so as to create a liberty interest and thereby trigger the protections of the Due Process Clause. See Rivera v. Goord, 2008 WL 5378372, at *2-3 (N.D.N.Y. Dec. 22, 2008) (holding that 40 days of room restriction "did not constitute a constitutionally cognizable liberty deprivation"); Uzzell v. Scully, 893 F.Supp. 259, 263 (S.D.N.Y.1995) (45 days of keeplock is not atypical and significant), Rivera v. Coughlin, 1996 WL 22342, at *5 (S.D.N.Y. Jan. 22, 1996) (89 days in keeplock does not create a liberty interest). Indeed, courts have roundly rejected the notion that such a short period of confinement, without additional hardships, creates a liberty interest even when that confinement is completely segregated, such as when an inmate is sent to the Special Housing Unit ("SHU"). See Sealey v. Giltner, 197 F.3d 578, 589-90 (2d Cir.1999) (101 days in normal SHU conditional was not atypical or significant) (cited in Ochoa v. DeSimone, 2008 WL 4517806, at *4 (N.D.N.Y. Sept. 30, 2008) (30 days in SHU, without more, did not create a liberty interest)); Thompson v. LaClair, 2008 WL 191212, at *3 (N.D.N.Y. Jan. 22, 2008) (30 days in SHU does not create a liberty interest). Therefore, we find that Plaintiff has failed to allege he suffered from an atypical and significant hardship and it is recommended that his due process claims be
The Second Circuit has stated that courts must approach prisoner retaliation claims "with skepticism and particular care," since "virtually any adverse action taken against a prisoner by a prison official—even those otherwise not rising to the level of a constitutional violation—can be characterized as a constitutionally proscribed retaliatory act." Dawes v. Walker, 239 F.3d 489, 491 (2d Cir.2001) (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983) & Franco v. Kelly, 854 F.2d 584, 590 (2d Cir.1988)), overruled on other grounds by Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002).
In order to prevail on a retaliation claim, a plaintiff bears the burden to prove that (1) he engaged in constitutionally protected conduct; (2) prison officials took an adverse action against him; and (3) a causal connection exists between the protected speech and the adverse action. Bennett v. Goord, 343 F.3d 133, 137 (2d Cir.2003) (citations omitted); see also Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir.2004) (citation omitted).
A plaintiff may meet the burden of proving an inappropriate retaliatory motive by presenting circumstantial evidence of a retaliatory motive, such as temporal proximity, thus obviating the need for direct evidence. Bennett v. Goord, 343 F.3d at 138-39 (holding that plaintiff met his burden in proving retaliatory motive by presenting circumstantial evidence relating to, inter alia, the temporal proximity of allegedly false misbehavior reports and the subsequent reversal of the disciplinary charges on appeal as unfounded). Other factors that can infer an improper or retaliatory motive include the inmate's prior good disciplinary record, vindication at a hearing on the matter, and statements by the defendant regarding his motive for disciplining plaintiff. McEachin v. Selsky, 2005 WL 2128851, at *5 (N.D.N.Y. Aug. 30, 2005) (citing Colon v. Coughlin, 58 F.3d 865, 872-73 (2d Cir.1995)).
Moreover, "in the prison context [the Second Circuit has] previously defined `adverse action' objectively, as retaliatory conduct `that would deter a similarly situated individual of ordinary firmness from exercising . . . constitutional rights.'" Gill v. Pidlypchak, 389 F.3d at 381 (quoting Davis v. Goord, 320 F.3d 346, 353 (2d Cir.2003) (emphasis in original). This objective test will apply even though a particular plaintiff was not himself deterred. Id. If the plaintiff can carry that burden, the defendants will still be entitled to summary judgment if they can show, by a preponderance of the evidence, that they would have taken the same action in the absence of the prisoner's First Amendment activity. Davidson v. Chestnut, 193 F.3d 144, 148-49 (2d Cir.1999); see Hynes v. Squillace, 143 F.3d 653, 657 (2d Cir.1998); Lowrance v. Achtyl, 20 F.3d 529, 535 (2d Cir.1994).
However, the record is clear that all of the disciplinary actions taken against Plaintiff were due to his failure to abide by orders directing his compliance with DOCS' hair policy. See Artus Decl Exs. B-E, Disciplinary Packets for MR's 1-4. Therefore, even assuming Plaintiff could show that such disciplinary actions were motivated by retaliatory animus (an assumption that finds no basis in the record), Plaintiff's retaliation claims would fail because it is undisputed that his dreadlocks violated DOCS' policy, and thus, the DOCS employees who disciplined Plaintiff can easily show that they would have taken the same disciplinary actions even in the absence of his protected conduct. See Davidson v. Chestnut, 193 F.3d at 149 ("At the summary judgment stage, if the undisputed facts demonstrate that the challenged action clearly would have been taken on a valid basis alone, defendants should prevail."). Although Plaintiff has challenged DOCS' hair policy in this lawsuit, there is no suggestion that at the time he was disciplined, that policy was not valid. Thus, because there is unrefuted evidence that Plaintiff was disciplined pursuant to a valid DOCS' policy, his retaliation claims must fail.
Although unclear, it appears that Plaintiff asserts an Eighth Amendment claim based on the conditions of his confinement while he served his disciplinary sanctions, which included serving three thirty (30) day and one forty-five (45) day periods in keeplock, loss of phone and commissary privileges, no regular visits, twenty-three (23) hour confinement, and only three showers a week. Compl. at ¶ 6.
In order to state a valid conditions of confinement claim under the Eighth Amendment, a plaintiff must allege: (1) the conditions were so serious that they constituted a denial of the "minimal civilized measure of life's necessities," and (2) the prison officials acted with "deliberate indifference." Wilson v. Seiter, 501 U.S. 294, 297-99 (1991) (citation omitted) (cited in Branham v. Meachum, 77 F.3d 626, 630-31 (2d Cir.1996)). Here, Plaintiff does not allege that he was denied the "minimal civilized measure of life's necessities," rather, he states that he was placed on keeplock and denied various privileges for three thirty (30) day and one forty-five (45) day periods.
No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person
42 U.S.C. § 2000cc-1(a).
Thus, Plaintiff can establish a RLUIPA violation by proving that the prison regulations constitute a "substantial burden" on his religious exercise without promoting a compelling governmental interest that is advanced through the least restrictive means. As such, RLUIPA places a much higher burden on defendants than does the First Amendment, which, as articulated in the case of Turner v. Safely, requires only that a burden be "reasonably related to legitimate penological interests," not the least restrictive means of protecting compelling governmental interests. 482 U.S. 78, 89 (1987).
The first issue is whether Plaintiff's freedom of religious expression has been substantially burdened. Plaintiff is a registered NOI member. The NOI does not require him to wear dreadlocks, however, Plaintiff asserts that he wears dreadlocks pursuant to his own personal faith and interpretations of the Qu'ran and Bible. Pl.'s Decl. at ¶ 43. As Plaintiff explains, his
Id. at ¶ 43 (emphasis in original).
Defendant contends that because Plaintiff's desire to wear dreadlocks is "merely a personal choice and is not based upon NOI tenant or dogma," DOCS' policy does not substantially burden his sincerely held religious beliefs. Dkt. No. 36, Def.'s Mem. of Law at p. 31; see also Leonard Decl. at ¶ 65. RLUIPA defines "religious exercise" as "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." 42 U.S .C. § 2000cc-5(7)(A). Thus, the question of whether Plaintiff's personal religious beliefs are founded in any particular established religion is inapposite. However, RLUIPA "does not preclude inquiry into the sincerity of a prisoner's professed religiosity." Cutter v. Wilkinson, 544 U.S. at 725 n. 13. On that subject, the record shows that Plaintiff has been growing dreadlocks for religious reasons since approximately 1993. Dkt. No. 36-3, Pl.'s Dep. at p. 12. In addition, Plaintiff's continued refusal to cut his hair despite the successive punishments he received arguably supports his professed sincerity. Simply put, there is nothing in the record undermining the sincerity of Plaintiff's religious beliefs.
Once an RLUIPA plaintiff meets his burden of showing a substantial burden on his exercise of religion, the evidentiary burden shifts to the defendant, who must show that the regulation (1) is in furtherance of a compelling governmental interest and (2) is the least restrictive means of furthering such interest. 42 U.S.C. § 2000cc-2(b). On the first point, Defendant has asserted an interest in maintaining prison security, which he alleges could be undermined if more prisoners are allowed to wear dreadlocks, which can be used to conceal weapons. Def.'s Mem. of Law at pp. 32-33; Dkt. No. 36-8, Lucien J. LeClaire, Jr., Decl., dated Apr. 30, 2009, at ¶¶ 7-21; Leonard Decl. at ¶¶ 48-57 & 68. Without question, DOCS' interest in safety and security is a compelling governmental interest. See Cutter v. Wilkinson, 544 U.S. at 725 n. 13.
But, in order to defeat Plaintiff's RLUIPA claim, Defendant must also show that DOCS' policy is the least restrictive means of furthering its compelling interest in security. We believe there are questions of material fact on that issue. Despite the alleged security concerns, DOCS' policy allows inmates of the Rastafarian faith to wear dreadlocks. Leonard Decl. at ¶ 63. Also, Directive # 4914 allows all inmates to grow their hair long, provided they wear it pulled back in a ponytail, and also allows inmates to wear their hair in a "Afro-natural" style. Leonard Decl., Ex. B, DOCS Directive # 4914(III)(B)(2)(a),(d). Thus, DOCS affords a degree of leeway with respect to inmates' hairstyles, but has drawn a line in the sand with respect to dreadlocks worn by non-Rastafarian prisoners. Plaintiff asserts that the least restrictive means of ensuring security is already provided in DOCS Directive # 4914(111) (B)(2) (e), which states that
Id.
DOCS Deputy Commissioner for Correctional Facility Security Lucien J. LeClaire, Jr., responds to that argument in his Declaration, asserting that "[l]arge, long dreads and the matted hair close to the scalp create a hairstyle that is extremely difficult to visually inspect and nearly impossible for inmates to run their fingers through to allow staff to insure that no contraband is contained therein." LeClaire Decl. at ¶ 18. LeClaire further argues that if an inmate need only declare a personally held religious belief in growing dreadlocks in order to be given permission to do so, DOCS will have no ability to restrict the number of inmates wearing dreadlocks. Id. at ¶ 19. The Court does not overlook the weight of these arguments nor the deference courts must accord prison officials when analyzing their policies. However, we question the assumption that permitting dreadlocks to be worn by inmates whose sincerely held religious beliefs require them would open the proverbial floodgates. Under DOCS' current policy, any nefariously motivated inmate need only register himself as a Rastafarian in order to be given permission to wear dreadlocks, and there is no evidence presented to the Court that such policy has resulted in a substantial increase in the Rastafarian/ dreadlock-wearing inmate population. Leonard Decl. at ¶ 63; see also Artus Decl., Ex. D, Misbehavior Rep., dated Aug. 1, 2007 (stating "[i]nmate Pilgrim was given a direct order on July 1st 2007 to cut his dreadlocks or become a registered Rastafarian") & Leonard Decl., Ex. C, CORC Decision, dated Feb. 9, 2005 (ruling that "staff have correctly directed the grievant to remove his dreadlocks, or change his religious designation"). Moreover, because DOCS has deemed its current policy adequate to protect its safety interests with respect to all of the other permitted hairstyles as well as for Rastafarian inmates with dreadlocks, a material question of fact exists as to why that policy would not also suffice for inmates in Plaintiff's position. See Amaker v. Goord et al., 2007 WL 4560595.
Even under a First Amendment analysis, questions of fact remain. Courts must analyze free exercise claims by evaluating "1) whether the practice asserted is religious in the person's scheme of beliefs, and whether the belief is sincerely held; 2) whether the challenged practice of the prison officials infringes upon the religious belief; and 3) whether the challenged practice of the prison officials furthers some legitimate penological objective." Farid v. Smith, 850 F.2d 917, 926 (2d Cir.1988) (citations omitted).
DOCS has a compelling and legitimate penological interest in maintaining prison security. The policy in question, which seeks to limit the number of prisoners who are allowed to wear dreadlocks, which can be used to hide small weapons, is rationally related to that interest. The other remaining three factors, however, weigh against Defendant. On the second Turner factor, the Court is not aware of any other means of exercising this particular religious belief other than physically growing dreadlocks. As to the third factor, as previously discussed, questions of fact exist as to what effect the accommodation of Plaintiff's beliefs would have on the entire prison system, especially considering the fact that DOCS' current policy allows any inmate who self-identifies as Rastafarian to wear dreadlocks. For the same reasons, we believe a question of fact exists as to whether there are ready alternatives to DOCS' current policy, including the procedures already applied to those whom DOCS currently allows to wear dreadlocks and other long hair styles. Overall, there are material questions of fact as to the reasonableness of DOCS' policy Plaintiff has challenged. See Benjamin v. Coughlin, 905 F.2d 571, 576-77 (2d Cir.), cert. denied, 498 U.S. 951 (1990) (affirming district court's finding that DOCS' policy requiring Rastafarian inmates to cut their dreadlocks upon arrival into DOCS' custody was not reasonably related to the asserted penological interests when defendants did not demonstrate that the religious accommodation sought by prisoners would have "more than a de minimis effect on valid penological interests"); see also Francis v. Keane, 888 F.Supp. 568, 577 (S.D.N.Y.1995) (denying summary judgment where two Rastafarian C.O.'s challenged DOCS' grooming regulation prohibiting dreadlocks for officers); Amaker v. Goord, 2007 WL 4560595.
In this case, the uncontroverted record shows that Artus took no actions relevant to Plaintiffs claims beyond referring Plaintiffs complaints, grievances, and appeals to his subordinates. Artus Decl. at ¶ 13. Moreover, the record does not show, and it is not alleged, that Artus was the creator of the DOCS' policy Plaintiff is challenging. Id. at ¶ 8 (noting that the policy is based on DOCS Directive # 4914 and relevant CORC determinations, which have the effect of Directives). Plaintiff has not sued DOCS, nor any DOCS employee responsible for creating and/or enforcing the challenged policy.
However, considering Plaintiffs pro se status, the lack of finality in this Circuit on the issue of personal involvement in RLUIPA claims, and judicial economy, the Court recommends that DOCS and DOCS Commissioner Brian Fischer be substituted as proper Defendants to this action solely as to Plaintiffs RLUIPA and First Amendment free exercise claims.
However, the district courts in this Circuit have held that monetary damages are not available under RLUIPA against state defendants in either their official or individual capacities.
Defendant asserts the affirmative defense of qualified immunity. Qualified immunity shields "government officials from liability for civil damages when their conduct does not violate `clearly established statutory or constitutional rights of which a reasonable person would have known.'" African Trade & Info. Ctr., Inc. v. Abromaitis, 294 F.3d 355, 359 (2d Cir.2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); see also Mollica v. Volker, 229 F.3d 366, 370 (2d Cir.2000). Accordingly, governmental officials sued for damages "are entitled to qualified immunity if 1) their actions did not violate clearly established law, or 2) it was objectively reasonable for them to believe that their actions did not violate such law." Warren v. Keane, 196 F.3d 330, 332 (2d Cir.1999) (citation omitted).
Should the district court adopt this Court's recommendations, Plaintiffs RLUIPA and First Amendment religious expression claims against DOCS and Commissioner Fischer are all that will remain in this case. Qualified immunity does not apply to suits against individuals in their official capacities. See Kentucky v. Graham, 473 U.S. 159, 167 (1985) ("The only immunities that can be claimed in an official-capacity action are forms of sovereign immunity that the entity, qua entity, may possess, such as the Eleventh Amendment."). We have already held that, with respect to Plaintiffs RLUIPA claim, monetary damages are not available against defendants in their individual or official capacities. As such, Plaintiffs RLUIPA claims will be limited to injunctive and declaratory relief against DOCS employees in their official capacities. Therefore, qualified immunity has no bearing on Plaintiffs RLUIPA claim. See, e.g., Rodriguez v. City of New York, 72 F.3d 1051, 1065 (2d Cir.1995) ("[T]he defense of qualified immunity protects only individual defendants sued in their individual capacity, not governmental entities . . . and it protects only against claims for damages, not against claims for equitable relief."); see also Rodriguez v. Phillips, 66 F.3d 470, 481 (2d Cir.1995) (noting that qualified immunity does not apply to claims for injunctive and declaratory relief against a defendant in his official capacity).
Because we find that DOCS' policy did not violate clearly established law, qualified immunity would apply to all those who participated in its creation and enforcement. As such, should the District Court adopt our recommendation that Commissioner Fischer be substituted as a Defendant, Plaintiffs only potential relief against Fischer in his individual capacity could be nonmonetary. See Rodriguez v. Phillips, 66 F.3d at 481. Likewise, the Eleventh Amendment's protection of the States' sovereign immunity would preclude any monetary damages Plaintiff would seek against Fischer in his official capacity. See Farid v. Smith, 850 F.2d at 921.
As such, should the District Court adopt our recommendations, DOCS and Commissioner Fischer will be substituted as Defendants and Plaintiff will be limited to non-monetary relief against those Defendants under both RLUIPA and § 1983.
For the reasons stated herein, it is hereby
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court.
Not Reported in F.Supp.2d, 2010 WL 3724883
It bears noting that courts examining sexual harassment claims sometimes decide first whether the alleged conduct rises to a level of actionable harassment, before deciding whether this harassment can be attributed to the defendant employer or school, as this court does here. See, e.g., Distasio v. Perkin Elmer Corp., 157 F.3d 55 (2d Cir.1998). Sometimes, however, courts first examine whether the defendant can be held liable for the conduct, and only then consider whether this conduct is actionable. See, e.g., Quinn v. Green Tree Credit Corp., 159 F.3d 759, 767 n. 8 (2d Cir.1998). As noted in Quinn, the Circuit has not instructed that the sequence occur in either particular order. See id.
Local Rule 7.1(a)(3) (emphasis in original).
