WILLIAM M. SKRETNY, District Judge.
In this action, George Chavis, a long-time prisoner in the custody of the New York Department of Corrections and Community Services ("DOCCS"), asserts a number of civil rights claims pro se under 42 U.S.C. § 1983 against a multitude of DOCCS employees and officials. By order filed March 30, 2018, this Court accepted in part and set aside in part the Report and Recommendation of the Honorable Michael J. Roemer, United States Magistrate Judge, who principally recommended that the defendants' motion to dismiss Chavis's second amended complaint be denied. (Docket Nos. 40, 49, 64.) This Court granted the defendants' objections to the Report and Recommendation, granted their motion to dismiss, and dismissed Chavis's second amended complaint. (Docket No. 64.) It also denied Chavis's objections. (
This case has a long and tortured history.
Chavis initially filed his complaint together with a motion to proceed in forma pauperis more than a decade ago, on August 16, 2006. (Docket No. 1.) On October 24, 2006, the Honorable John T. Elfvin, United States District Judge, denied Chavis's motion to proceed in forma pauperis on the basis that Chavis had received more than three "strikes" under the Prison Litigation Reform Act ("PLRA") and had not sufficiently demonstrated that he was in imminent danger of serious physical injury such that his case could proceed despite the three-strike bar in 28 U.S.C. § 1915 (g). (Docket No. 4.) Judge Elfvin therefore ordered that Chavis's complaint be dismissed, unless he paid the full filing fee by November 28, 2006. (
But instead of paying the filing fee, Chavis filed a motion to amend his complaint and an "Order to Show Cause for Preliminary Injunction and TRO Order." (Docket Nos. 5, 6.) On May 11, 2007, the Honorable Charles J. Siragusa, United States District Judge, construed Chavis's motion to amend as a motion for reconsideration and then promptly denied both that motion and Chavis's motion for injunctive relief. (Docket No. 7.) Judge Siragusa also dismissed Chavis's complaint for failure to pay the required filing fee. (Docket No. 7.)
Chavis appealed Judge Siragusa's decision to the United States Court of Appeals for the Second Circuit, which, on August 17, 2010, reversed the denial of Chavis's motion to amend as an abuse of discretion and strongly suggested that the allegations in Chavis's submissions satisfied the imminent danger standard in § 1915 (g) such that Chavis should be permitted to proceed in forma pauperis.
Upon remand, the Honorable H. Kenneth Schroeder, Jr., United States Magistrate Judge, directed Chavis to file an amended complaint, which Chavis filed on October 31, 2011. (Docket Nos. 15, 18.) Chavis's amended complaint, however, did not completely replace his initial complaint, as required.
Chavis filed his second amended complaint on July 26, 2012, using this district's Prisoner Complaint Form. (Docket No. 20.) He largely ignored the section of the form seeking information about other lawsuits involving the same facts, other than to answer "too many pre-maturely [sic] dismissed I could not prepare an appeal brief due to judicial corruption here!." (SAC, Docket No. 20, pp. 2, 14.) In addition, when asked on the form whether he had begun any other lawsuits in federal court relating to his imprisonment, Chavis listed only "`this one pending now," referring to the present case (06-CV-543S).
On March 31, 2015, this Court screened Chavis's second amended complaint pursuant to § 1915 (e)(2)(B) and § 1915A, and reviewed it to determine whether Chavis established "imminent danger of serious physical injury" such that he could proceed in forma pauperis, as the Second Circuit suggested. (Docket No. 23.) In a 39-page decision, this Court found that Chavis alleged sufficient facts to meet the imminent danger standard in § 1915 (g) and screened out a number of claims and defendants.
On November 30, 2015, to facilitate effectuating service, Judge Schroeder directed the New York State Attorney General's office to provide contact information for the defendants, consistent with
On August 16, 2016, the defendants filed a motion to dismiss Chavis's second amended complaint under Rules 11 and 12 of the Federal Rules of Civil Procedure. (Docket No. 40.) In particular, the defendants sought dismissal under Rule 12 (b)(5) for insufficient service of process, under Rule 12 (b)(6) for failure to state a claim upon which relief can be granted, and under Rule 11 and this Court's inherent authority due to Chavis's "vituperative conduct" and his inclusion of false information in his pleadings. (Docket No. 40.) The parties fully briefed the defendants' motion before Judge Roemer, who reserved decision without oral argument. (Docket No. 40, 45, 47.)
On January 4, 2017, Judge Roemer issued a Report and Recommendation that addressed a number of motions, including the defendants' motion to dismiss. (Docket No. 49.) As it pertains to the motion to dismiss, Judge Roemer recommended that it principally be denied. (
Both parties filed objections to the Report and Recommendation, which were fully briefed by February 15, 2017. (Docket Nos. 50, 52, 54.) Thereafter, this Court accepted the Report and Recommendation over objection as it pertained to the other motions addressed therein, but reserved decision on the defendants' objections as it related to the defendants' motion to dismiss. (Docket No. 57.) Subsequently, as noted above, this Court accepted the Report and Recommendation in part and set it aside in part as it related to the motion to dismiss,
Chavis's claims are difficult to navigate. His handwritten, 75-page second amended complaint contains a litany of disconnected allegations, complaints, and accusations. After screening, the events underlying the remaining largely disjointed claims span more than six years and three correctional facilities. In its initial screening order, this Court identified those claims that required dismissal, but did not specifically identify the remaining claims. (Docket No. 23.) In his Report and Recommendation, Judge Roemer identified the remaining defendants and generally identified the remaining claims. (Docket No. 49, pp. 10-13.) Building on those two decisions, and having reviewed the second amended complaint in detail, this Court identifies the remaining claims as follows below.
Scattered within Chavis's second amended complaint are nine claims arising out of the Southport Correctional Facility.
First, Chavis alleges that on August 12, 2005, Defendant P. Jayne refused to provide him state-issued winter clothing, which resulted in Chavis receiving no outdoor recreation for one year while he was in the SHU. (SAC, Docket No. 20-1, p. 8.)
Second, Chavis alleges that Defendant D. Selsky violated his due process rights in November or December 2005 (and again on June 19-20, 2006) by affirming hearing officers' rulings in Tier 3 hearings where Chavis was unsuccessful. (SAC, Docket No. 20-4, p. 6.)
Third, Chavis alleges that on May 7, 2006, Defendant P. Jayne illegally confiscated his property in retaliation for Chavis filing numerous grievances against him. (SAC, Docket No. 20-1, p. 8.) He further alleges that on this same date, Defendant J. Litwiler delayed sending him four of his "actively pending case property draft bags," in an effort to cause him to miss a filing deadline in litigation he had pending in federal court. (
Fourth, Chavis alleges that on July 3-4, 2006, Defendant J. Litwiler took away his medically-issued men's briefs, which aggravated a groin injury that he had since 2004. (
Fifth, as set forth in the margin, Chavis alleges that a number of the defendants attacked him—or failed to stop the attack—in the Draft Room on July 17, 2006.
Sixth, Chavis alleges that from September 4-6, 2006, Defendant P. Chappius participated in a conspiracy to file false misbehavior reports against him to cause his cell relocation and change in status from SHU-Level 2 status to SHU-Level 1 status. (SAC, Docket No. 20-1, pp. 3-4.) Chavis alleges that on September 4, 2006, Defendant P. Chappius "ordered repeated officer cell searches on me while in SHU-housing, that resulted in four to five harassment searches." (
Seventh, Chavis alleges that on September 15, 2006, Defendant P. Corcoran violated his due process rights during a Tier 3 hearing concerning the "contraband ticket" written by Defendant P. Carpenter several days earlier. (SAC, Docket No. 20-2, pp. 6-7.)
Eighth, Chavis alleges that on July 17, 2007, Defendants P. Jayne and J. Litwiler stole and destroyed seven of his property bags after his transfer from the Southport Correctional Facility to the Elmira Correctional Facility on or about May 18 or June 18, 2007. (SAC, Docket No. 20-1, pp. 8, 12, 13.) This was allegedly done in retaliation for Chavis filing grievances. (
And finally, Chavis alleges that in 2010 (after he returned to Southport from Elmira), Defendants M. Deburgomaster and J. Squires intimidated and verbally threatened him by visiting him in his SHU cell. (
Chavis asserts two claims arising out of the Elmira Correctional Facility. He alleges that on November 9, 2009, he suffered a 5-inch long, ¼-inch deep cut on his face inflicted by a fellow inmate after Defendants S. Wenderline and M. Bradt refused his written requests to relocate him to another housing block, presumably to avoid the inmate who harmed him. (SAC, Docket No. 20-3, pp. 1-2; SAC, Docket No. 20-3, p. 10.) Chavis further alleges that Defendant J. Esgrow violated his due process rights during the course of the related Tier 3 hearing by denying him the opportunity to call expert witnesses. (SAC, Docket No. 20-4, p. 5.)
Chavis asserts four claims arising out of his incarceration at the Attica Correctional Facility.
First, Chavis alleges that in October 2010, Defendant J. Whiteford engaged in "ticket retaliation." (SAC, Docket No. 20-3, p. 8.) Chavis further claims that Whiteford "erased" his conditional discharge date and participated in a conspiracy with other defendants to limit his access to programs at Attica. (
Second, Chavis alleges that sometime in 2011, Defendant W. Murray violated his due process rights during a Tier 3 hearing by failing to consider certain evidence that he offered. (SAC, Docket No. 20-4, pp. 1-2.) Chavis also alleges that Murray conspired with Defendants Chappius and Fitz to burn his legal papers and relocate him. (
Third, Chavis alleges that on March 18, 2011, Defendant L. Hale "ticketed" him in retaliation for filing grievances. (SAC, Docket No. 20-3, p. 4.) He also alleges that Hale refused to release him from his cell on March 18, 2011, and was "reluctant" to release him from his cell on April 17, 2011. (SAC, Docket No. 20-3, p. 4.) He further alleges that Hale and Defendant Fitz verbally threatened him, harassed him, refused to release him from his cell, flooded his cell, and denied him food over a period of two weeks. (SAC, Docket No. 20-3, p. 4.)
Fourth, Chavis alleges that on April 20, 2011, Defendants P. Chappius and Fitz burned his legal papers in his cell. (SAC, Docket No. 20-1, p. 4; SAC, Docket No. 20-3, p. 5.) Chavis includes photographs in the second amended complaint that he maintains depict his burned papers, though the photographs are not very clear. (SAC, Docket No. 20-3, pp. 6-7.)
Cognizant of the distinct disadvantage that pro se litigants face, federal courts routinely read their submissions liberally and interpret them to raise the strongest arguments that they suggest.
The defendants move to dismiss Chavis's Southport and Elmira claims for failure to state a claim upon which relief can be granted on the basis that they are precluded by the doctrine of res judicata. They also seek dismissal of all claims for insufficient service of process and as a sanction under Rule 11 and this Court's inherent authority.
Rule 12 (b)(6) allows dismissal of a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12 (b)(6). Federal pleading standards are generally not stringent: Rule 8 requires only a short and plain statement of a claim. Fed. R. Civ. P. 8 (a)(2). But the plain statement must "possess enough heft to show that the pleader is entitled to relief."
When determining whether a complaint states a claim, the court must construe it liberally, accept all factual allegations as true, and draw all reasonable inferences in the plaintiff's favor.
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'"
A two-pronged approach is thus used to examine the sufficiency of a complaint, which includes "any documents that are either incorporated into the complaint by reference or attached to the complaint as exhibits."
Civil liability is imposed under 42 U.S.C. § 1983 only upon persons who, acting under color of state law, deprive an individual of rights, privileges, or immunities secured by the Constitution and laws.
Personal involvement in the deprivation of a federal constitutional right is the sine qua non of liability under § 1983.
The Second Circuit construes personal involvement in this context to mean "direct participation, or failure to remedy the alleged wrong after learning of it, or creation of a policy or custom under which unconstitutional practices occurred, or gross negligence in managing subordinates."
Chavis is a litigious inmate. He has filed numerous actions throughout the state and federal courts in New York, including ten alone in this district. His complaints are typified by vitriol and acrimony, with one court characterizing Chavis as having an "incorrigible propensity for abusing the litigation process."
To determine whether res judicata applies, courts consider "(i) whether the previous action involved an adjudication on the merits; (ii) whether the previous action involved the same parties or those in privity with them; and (iii) whether the claims asserted in the subsequent action were, or could have been, raised in the prior action."
The defendants argue that the majority of Chavis's claims arising from Southport and Elmira are barred by res judicata. Citing three actions that Chavis brought in this district—
The next questions in the res judicata analysis are whether the resolved actions involved the same defendants (or those in privity) and whether the present claims were or could have been asserted in the resolved actions. To answer these questions, this Court has conducted an in-depth review of each of the voluminous complaints filed in the three cited actions. Based on that review, this Court finds that many of the claims, as set forth below, were filed against the same defendants and involved the same claims as asserted herein.
As it relates to the Southport claims, this Court first finds that Chavis's claim against Defendant D. Selsky for violation of his due process rights was raised against him in
In addition, many of Chavis's claims arising out of the July 17, 2006 attack were raised in
Chavis's remaining Southport claims were also raised in
As it relates to Chavis's Elmira claims, this Court finds that they too were raised in
Because the claims set forth above were resolved by an adjudication on the merits, involved the same defendants, and concerned the same claims, they are barred by res judicata. They must therefore be dismissed.
As indicated above, this Court screened Chavis's second amended complaint on March 31, 2015, pursuant to § 1915 (e)(2)(B) and § 1915A. (Docket No. 23.) At that time, this Court dismissed a number of claims and defendants, but did not specifically identify the remaining claims in the complaint. (
First, Chavis's Eighth Amendment denial-of-medical-care claims against Defendants M. Miles (SAC, Docket No. 20-1, p. 15), J. Litwiler (SAC, Docket No. 20-1, pp. 14-15), and R. Barnard (SAC, Docket No. 20-4, p. 7) related to the alleged denial of "medical supporters" or "medically-issued men's briefs" must be dismissed because this Court has found that "[Chavis's] alleged medical needs do not constitute a serious medical condition." (Docket No. 23, p. 21.) That is, Chavis "has not alleged a `deprivation of medical treatment [that] is, in objective terms, sufficiently serious—that is, [plaintiff] must prove that his medical need was a condition of urgency, one that may produce death, degeneration or extreme pain[,] nor has he alleged that [the defendant] acted with a sufficiently culpable state of mind.'" (Docket No. 23, p. 22 (citing
Second, Chavis's retaliation claim against Defendant P. Chappius involving him ordering cell searches as part of an alleged "ticket retaliation conspiracy" (SAC, Docket No. 20-1, pp. 2-4) must be dismissed for the same reason the claim was previously dismissed against Defendants P. Carpenter and Wetzel: the claim is wholly conclusory. (
Accordingly, these claims are dismissed under § 1915 (e)(2)(B) and § 1915A.
The defendants have not moved against Chavis's remaining claims under Rule 12 (b)(6), which but for the dismissal of this action as a sanction, would proceed. Those claims include the remaining Southport claims: (1) denial-of-winter-clothing claim against Defendant P. Jayne (SAC, Docket No. 20-1, p. 8); (2) denial-of-access-to-courts claim and religious-interference claims against Defendant M. Miles (SAC, Docket No. 20-1, p. 15); and (3) denial-of-medical-care claim against Defendant R. Barnard (SAC, Docket No. 20-4, p. 7). They also include Chavis's claims arising out of the Attica Correctional Facility, but for his claims against Defendant Fitz (SAC, Docket No. 20-3, p. 5), which are dismissed for Chavis's failure to properly identify this defendant. (
The defendants also move to dismiss each of Chavis's claims on the basis that he failed to properly serve them within 120 days of filing his complaint, as required by the version of Rule 4 (m) of the Federal Rules of Civil Procedure in effect at that time.
The time to effectuate service is tolled while an in forma pauperis application is pending.
Once this Court granted Chavis in forma pauperis status on remand, the responsibility for effectuating service shifted to the court.
Consequently, this Court denies the defendants' request to dismiss Chavis's complaint for insufficient service of process.
As an alternate basis for dismissal of the second amended complaint, the defendants argue that Chavis should be sanctioned with dismissal under Rule 11 and this Court's inherent authority for making material misrepresentations about his litigation history. This Court agrees.
Rule 11 provides as follows:
By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . . . the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery . . . .
Fed. R. Civ. P. 11 (b)(3).
As noted above, Chavis is a persistent filer and well versed in the federal rules. He has filed dozens of actions throughout the state and federal courts in New York.
Chavis well knows that if he chooses to complete the prisoner complaint form, he must do so truthfully. This is apparent because Chavis has twice before been sanctioned with dismissal for failing to truthfully convey his litigation history in his pleadings. In
In filing the second amended complaint here, Chavis failed to identify the other lawsuits involving the same facts, claiming "too many pre-maturely [sic] dismissed I could not prepare an appeal brief due to judicial corruption here!." (SAC, Docket No. 20, pp. 2, 14.) He also wholly misrepresented his litigation history when he attested that his only lawsuit in federal court relating to his imprisonment was "`this one pending now." (
These misrepresentations are material since they precluded the court from making the four determinations set forth above.
As required, this Court has considered sanctions less drastic than dismissal but finds them to be inadequate in light of Chavis's pattern of abusing the litigation process and his staunch refusal to conform to the requirements of civil litigation practice. Dismissal itself has proven an ineffective sanction as Chavis has twice before had complaints dismissed for lying about his litigation history, yet he persisted in doing the same thing here. Chavis continues to act with total disregard for the rules and the directives of the court. Such overt demonstration of bad faith and abuse of the judicial process will not be tolerated. Chavis's second amended complaint is therefore dismissed as a sanction under Rule 11 and this Court's inherent authority due to Chavis knowingly making material misrepresentations about his litigation history in the second amended complaint.
Chavis has earned the dismissal of this action. Despite numerous warnings and sanctions from several courts, Chavis continues to abuse the litigation process undeterred. His material misrepresentations here cloaked the fact that the majority of his claims are precluded by res judicata. Given Chavis's litigation history and his knowledge that misrepresentations can lead to dismissal, there can be no doubt but that his conduct here was intentional and likely designed to avoid early dismissal of his barred claims. In this Court's view, nothing short of dismissal will adequately deter such blatant disregard for the judicial process. For that reason, in addition to a majority of the claims being precluded by res judicata, the entire second amended complaint is alternatively dismissed as a sanction.
IT HEREBY IS ORDERED, that for the reasons stated above, this Court entered its Order entered on March 30, 2018 (Docket No. 64).
SO ORDERED.
At some point after Chavis arrived, Defendant E. Delaney allegedly ordered Chavis to vacate the Draft Room. (
From there, an attack allegedly ensued. Chavis claims to have "suffered punches by closed fists to [his] back kidney/liver area leading to serious trauma over a period of several years." (
In addition to claims against the alleged attackers, Chavis alleges that the Draft Room sergeant, Defendant James Morton, failed to stop the attack. (SAC, Docket No. 20-1, pp. 3, 12; SAC, Docket No. 20-2, p. 2.) He further alleges that Defendant T. Hana was present for the attack and presumably did not intervene. (SAC, Docket No. 20-2, p. 3.) He also alleges that Defendant M. DeLauro of the medical staff was summoned to the Draft Room, but instead of providing treatment, fabricated a "no injury" examination to cover up the alleged assault. (SAC, Docket No. 20-1, pp. 2, 5.) Chavis further alleges that Defendant R. Barnard denied him access to the medical infirmary and failed to refer him for hospital examination. (SAC, Docket No. 20-4, p. 7.) Chavis also contends that R. Barnard was deliberately indifferent to his medical needs when he stripped him of his medication and refused to allow him access to men's support briefs just before the July 2006 assault. (
