CHRISTIAN F. HUMMEL, Magistrate Judge.
Plaintiff
The facts are related herein in the light most favorable to plaintiff as the nonmoving party.
Am. Compl. ¶ 28. On October 27, 2014 Capt. Webbe received a copy of plaintiff's FOIA request from non-party Criminal Intelligence Coordinator at the Hazard Device School Richard Browning.
On October 29, 2014, Lt. Ferrier issued plaintiff a misbehavior report charging him with soliciting goods and services from a business without approval (103.20) and attempted possession of material that depicts the construction of an explosive device (117.10). Am. Compl. ¶ 36. On November 3, 2014, DSP Colao commenced a Tier III disciplinary hearing.
On November 10, 2014, DSP Colao found plaintiff guilty of attempted possession of materials that depict the construction of an explosive device (117.10), and not guilty of solicitation of goods and services without approval (103.20). Am. Compl. ¶ 44. On November 17, 2014, plaintiff requested a discretionary review of the Tier III hearing, and Supt. Lee "reviewed the penalty imposed [by Hearing Officer Colao] and [found] it appropriate."
In support of their Motion for Summary Judgment, the DOCCS defendants filed a Statement of Material Facts.
Dkt. No. 78-1 ¶ 29 (quoting Dkt. No. 78-13 at 4). Pursuant to the October 7, 2014 letter, Capt. Webbe believed that plaintiff was requesting or soliciting contraband within a correctional facility.
Pursuant to the results of the investigation, Lt. Ferrier issued plaintiff a misbehavior report charging him requesting or soliciting goods or services from a business or person without approval (103.20) and attempting to possess an explosive device or material which depicts or described the construction or use of an explosive device (117.10). Dkt. No. 78-1 ¶ 45. In the misbehavior report, Lt. Ferrier offered a general summary of plaintiff's October 7, 2014 letter, and did not characterize the report as directly quoting the letter.
On November 3 2014, DSP Colao commenced a Tier III hearing on the charges contained in the October 24, 2014 misbehavior report. Dkt. No. 78-1 ¶¶ 76-77. During the hearing, plaintiff testified that he understood that an inmates' attempt to obtain materials and/or information explosives was "really touchy stuff," and that "[he knew] it" and was "aware of it."
On November 13, 2014, plaintiff filed a grievance in connection with this matter (ECF-26171-15). Dkt. No. 78-1 ¶¶ 102, 103. Plaintiff filed the grievance several days before Supt. Lee began working at Eastern.
In support of their Motion for Summary Judgment, the Federal Bureau of Investigation ("FBI") filed a Statement of Material Facts. On June 9, 2014, plaintiff filed a FOIA request with the FBI seeking an "Explosive Train technical Manual" for pipe bombs from the Redstone Arsenal. Dkt. No. 75-9 ¶ 2. On September 18, 2014, the FBI informed plaintiff that it had conducted the search, but could not locate a technical manual for pipe bombs.
"A court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The moving party has the burden of showing the absence of disputed material facts by providing the Court with portions of "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which support the motion. FED. R. CIV. P. 56(c);
To avoid summary judgment, a non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts."
Where, as here, a party seeks judgment against a
Plaintiff contends that Capt. Webbe, Lt. Ferrier, DSP Colao, and Supt. Lee retaliated against him for filing a FOIA request with the Hazardous Device School.
"To prove a First Amendment retaliation claim under Section 1983, a prisoner must show that `(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action.'"
Assuming for the purpose of this motion that plaintiff's filing of a FOIA request constitutes protected conduct,
The record is clear that on October 7, 2014, plaintiff requested, in part, "a copy of the `Explosive Train Manual' used in disarming pipe bombs . . . [o]r . . . information relative to the operating procedure itself." Dkt. No. 78-13 at 4. On October 27, 2014, DSS Russo informed Capt. Webbe that DOCCS personnel had been contacted by Mr. Browning at the Redstone Arsenal concerning plaintiff's request for material and/or information on explosives. Dkt. No. 78-5 ("Webbe Decl.") ¶ 6. Capt. Webbe spoke with Mr. Browning, who voluntarily faxed him a copy of plaintiff's FOIA request.
Aside from his conclusory allegations, plaintiff proffers no evidence that Lt. Ferrier or Capt. Webbe subjected him to "conduct . . . would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights. . . ."
Moreover, plaintiff has failed to demonstrate that his FOIA request, in and of itself, was "a substantial or motivating factor in the prison officials' decision to discipline the plaintiff."
In opposition, plaintiff offers a series of arguments attempting to establish defendants' retaliatory motives. First, plaintiff seems to suggest that Lt. Ferrier could not have charged him with violating Rule 117.10 because the FBI determined no such manual existed.
Even assuming plaintiff had established a proper retaliation claim, defendants have demonstrated that they would have issued plaintiff the misbehavior report even in the absence of the protected conduct.
Defendants have proffered relevant portions of the DOCCS "Standards of Inmate Behavior" Handbook, which designates prohibited behavior in all DOCCS facilities.
Lt. Ferrier declared that
Ferrier Decl. ¶ 17. Plaintiff does not dispute sending the letter.
In opposition, plaintiff attempts to rebut defendants' contention that the October 7, 2014 letter posed a threat to the safety and security of the facility. First, plaintiff argues that he would have kept the requested material and/or information in a combination locked steel locker, thereby, negating the threat of another inmate accessing the material.
Second, plaintiff argues that non-party DOCCS Senior Investigator Douglas Holland determined that plaintiff's October 7, 2014 letter was not a threat to the safety and security of the facility, and that defendants had access to this determination prior to issuing the misbehavior report; thus, plaintiff suggests that defendants cannot claim they would have issued the misbehavior report absent a retaliatory motive.
Accordingly, as plaintiff has failed to demonstrate a prima facie case for retaliation against Lt. Ferrier and Capt. Webbe, it is recommended that defendants' motion be granted.
Plaintiff alleges that DSP Colao "directly participated in the retaliation infraction by finding plaintiff guilty of the fabricated charge, 117.10, and subsequently sentencing [ ] plaintiff to 6-months in SHU" and one year recommended loss of good-time credit. Am. Compl. ¶ 101. The undersigned finds that plaintiff has failed to demonstrate why DSP Colao would find him guilty at a disciplinary hearing in retaliation for filing a FOIL request.
Plaintiff contends that Supt. Lee, "in his supervisory capacity, [ ] deprived plaintiff of his constitutional rights . . . by not correcting his subordinates, and reversing [DSP] Colao's hearing disposition, once [plaintiff] made him aware that his officers were retaliating against him by filing frivolous misbehavior reports for his federally protected right to request documents [through FOIA]." Am. Compl. ¶ 87. Defendants argue that Supt. Lee was not personally involved in any alleged violation of plaintiff's constitutional rights, and, to the extent that plaintiff's complaint is interpreted as alleging a surviving supervisory liability claim, such claim must be dismissed.
Supervisory officials may not be held liable merely because they held a position of authority.
The record demonstrates that Supt. Lee began working at Eastern on November 17, 2014 — after (1) plaintiff sent the October 7, 2014 letter; (2) the investigation into whether plaintiff violated DOCCS inmate rules; (3) the October 28, 2014 misbehavior report; and (4) the Tier III disciplinary hearing had concluded and a disposition had been rendered.
Second, even if the undersigned had determined that there was an underlying constitutional deprivation, courts in this Circuit are split as to "whether an allegation that a defendant affirmed a disciplinary proceeding determination is sufficient to establish personal liability for supervisory officials."
Lee Decl. ¶ 10. Supt. Lee's memorandum in response to plaintiff's request states, "I have reviewed the penalty imposed and find it appropriate. Your request for a modification is denied." Dkt. No. 78-7 at 5. Thus, as Supt. Lee's affirmance of the November 2014 disciplinary hearing acts as a "mere rubber-stamp[ ]" of DSP Colao's disposition, it does not amount to his personal involvement.
To the extent that plaintiff contends that defendants transferred him from Eastern in retaliation for his FOIA request, the undersigned finds that this claim is meritless. Plaintiff has not proffered evidence establishing that Supt. Lee, DSP Colao, Capt. Webbe, or Lt. Ferrier were personally involved in the decision to transfer plaintiff from Eastern, or otherwise had the authority to effectuate such transfer; in fact, the record establishes the opposite. Supt. Lee, DSP Colao, Capt. Webbe, and Lt. Ferrier all declare that they do not have the authority to transfer inmates between facilities.
Defendants argue that, even if plaintiff's First Amendment claim is substantiated, they are entitled to qualified immunity. Def. Mem. of Law at 14-15. Qualified immunity shields public officials from being sued for conduct undertaken in the course of their duties so long as that conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."
Here, plaintiff has not established a constitutional violation to satisfy the first prong of the qualified immunity test.
Defendants argue that they are entitled to Eleventh Amendment immunity relating to plaintiff's claims for money damages against them in their official capacities. Def. Mem. of Law at 15-17. The Eleventh Amendment provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. CONST. amend. XI. "[D]espite the limited terms of the Eleventh Amendment, a federal court [cannot] entertain a suit brought by a citizen against his [or her] own State."
A suit against a state official in his or her official capacity is a suit against the entity that employs the official.
Accordingly, it is recommended that defendants' motion on this ground be granted.
The FBI moves for summary judgment on the basis that (1) after a two reasonable searches and two direct inquiries, the FBI was unable to locate a technical manual for pipe bombs; and (2) if the FBI had located such a manual, it should not be released to an inmate for security reasons, and is protected from disclosure pursuant to FOIA's "law enforcement exception." Dkt. No. 75-10 at 4.
"In response to a request for records under FOIA, agencies are required to conduct a search `reasonably designed to identify and locate responsive documents' but need not `take extraordinary measures to find the requested records.'"
Mr. Hardy declares that after receiving plaintiff's initial FOIA request in June 2014, RIDS searched the Automated Case Support system via the UNI application for the search terms "Explosive Train Technical Manual," "Explosive Train Manual," and "Explosive Technical Manual," but the searches failed to locate records responsive to plaintiff's request. Dkt. No. 75-1 ¶ 20. The format of plaintiff's FOIA request did not mirror the manner in which FBI investigative records are indexed — i.e., the subject matter of the request was not a named individual or a common investigation subject like the "Oklahoma City Bombing."
After plaintiff commenced this lawsuit on October 7, 2016, RIDS conducted an additional search of the Automated Case System via the UNI, and added Sentinel, searching "Explosive Train Technical Manual," Explosive Train Manual," and "Explosive Technical Manual."
In his opposition, plaintiff concedes that the FBI "conducted a reasonable search for records, as required by FOIA[,] . . . and that they were unable to locate any records" responsive to his request. Dkt. No. 85-3 ¶ 53 (internal quotation marks omitted). However, he seems to suggest that the October 7, 2014 FOIA request — which was duplicative of the June 9, 2014 request — was directed to the United States Army, not the FBI, and that the United States Army's failure to respond to plaintiff's request violated federal statutory law.
Accordingly, the undersigned finds that the two document searches and two personal inquiries made by the FBI constitute a reasonable search to locate documents responsive to plaintiff's request.
Defendants argue that even if a technical manual for pipe bombs did exist, such manual would be exempt from disclosure pursuant to FOIA's "law enforcement exception." Dkt. No. 75-10 at 13. "Exemptions in the FOIA are to be `narrowly construed since disclosure, not secrecy, is the dominant objective of the Act.'"
Dkt. No. 75-10 at 13 (quoting 5 U.S.C. § 552(b)(7)(E), (F). The FBI argues that "a technical manual for pipe bombs, if it existed, would undoubtedly reveal `techniques and procedures for law enforcement'" and "could easily be shared with inmates throughout the prison and beyond."
Accordingly, it is recommended that the FBI's motion for summary judgment is granted.
Plaintiff also requests appointment of counsel. Dkt. No. 84. Plaintiff has previously requested counsel on October 7, 2016 and February 10, 2017, and those requests were denied.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), 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.
John P. Orilio, Assistant Corporation Counsel, City of Utica Law Department, Utica, NY, for Appellants.
John W. Dillon, New Hartford, NY, for Appellee.
PRESENT: JOHN M. WALKER, JR., GERARD E. LYNCH and CHRISTOPHER F. DRONEY, Circuit Judges.
The plaintiff's are representatives of the estate of Kristin Longo, who was murdered by her husband, Joseph Longo, a Utica, New York, police officer, who killed himself after the murder. LaBella was the chief of police in Utica at the time; Roefaro was the mayor. On appeal, LaBella and Roefaro argue that they are entitled to qualified immunity from the plaintiffs' 42 U.S.C. § 1983 substantive due process claims, brought under the "state created danger" theory. See, e.g., Pena v. DePrisco, 432 F.3d 98, 107-12 (2d Cir.2005).
"When, as here, the district court resolves a qualified immunity issue on a motion to dismiss, we review the court's determination de novo, accept as true all the material allegations of the complaint, and draw all reasonable inferences in the plaintiff's favor." Anderson v. Recore, 317 F.3d 194, 197 (2d Cir.2003).
The district court concluded that the plaintiff's had sufficiently stated a "state created danger" claim, see Pearce, 766 F.Supp.2d at 375, and that neither LaBella nor Roefaro was entitled to qualified immunity. The court held that the "plaintiffs' amended complaint sufficiently alleges that [LaBella and Roefaro] implicitly communicated to Longo that his abusive and threatening behavior would go unpunished and unimpeded. This conduct created, or at the very least increased, the danger to Kristin and violated a constitutional right that was clearly established at the time." Id. at 377.
The district court was correct with respect to LaBella but incorrect with respect to Roefaro.
As to LaBella, the amended complaint alleged, inter alia, that (1) he was unqualified for the job of police chief and had obtained the position "wrongfully and surreptitiously," see Am. Compl. ¶¶ 10-13; (2) he and Joseph Longo "had been close friends for several years" prior to LaBella's appointment as chief "and had been partners for many years" in the Utica Police Department, id. ¶ 14; (3) after word of Joseph Longo's domestic violence began to spread throughout the police department, another officer "urged" LaBella "to take action, including but not limited to confiscating" Joseph Longo's weapons, but LaBella "denied these requests, and directly ordered" that Officer Longo "be allowed to keep his weapons, and remain on duty without psychiatric and/or mental health intervention, notwithstanding the representations [by a Utica police official] to [Kristin Longo] that his weapons would be confiscated and that all measures would be taken to protect" Kristin Longo "and her children," id. ¶26; (4) the Utica Police Department "had a policy, custom and practice," either established or approved by LaBella, "of turning a blind eye to
However, the allegations against Roefaro as mayor are plainly insufficient to establish liability or defeat qualified immunity. As to Roefaro, the amended complaint alleged merely that (1) he appointed his friend LaBella as police chief, even though LaBella was not qualified for the job and other applicants had achieved equal or higher scores on the qualifying civil-service exam, Am. Compl. ¶¶ 10-12; (2) Roefaro hired LaBella as police chief despite knowing that LaBella "lacked the requisite education, qualifications, and experience to serve competently" as chief," id. ¶ 13; (3) LaBella's appointment constituted a "wrongful and illegal conspiracy" between Roefaro, LaBella, and other unspecified members of the Utica city government, carried out "with reckless disregard," that "created a danger to" Kristin Longo because it made her "vulnerable to the dangers posed by" her husband, id. ¶¶ 42, 44, 45; and (4) Kristin Longo's "great pain and suffering," "apprehension of death," and death were all "foreseeable consequences of the appointment of an unqualified individual to act as chief of police," id. ¶ 50.
These allegations do not allege a violation of any "clearly established" constitutional or statutory right. Plaintiff's do not allege that Roefaro knew or should have known about Joseph Longo's violent behavior, or knew or should have known that LaBella, as police chief, would ignore such behavior, or refused to take appropriate steps once he learned (if he ever did) of Joseph Longo's domestic violence or of LaBella's inaction. Rather, the only reasonably specific allegations against the mayor are that he knowingly hired an unqualified police chief, and that at some later point the unqualified chief failed to prevent a subordinate from murdering his wife.
These allegations do not come close to clearing the two hurdles required to overcome qualified immunity: establishing that (1) the mayor's "conduct violated a constitutional right," Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); and (2) that the right was "clearly established" that is, that it "would be clear to a reasonable [mayor] that his conduct" in hiring an unqualified friend as police chief "was unlawful," see id. at 202, 121 S.Ct. 2151.
Furthermore, even if the complaint had properly made out an allegation of a substantive due process violation, the mayor would nonetheless be entitled to qualified immunity under the second prong of the qualified immunity test, because the purported mayoral "duty" asserted by the plaintiff's — a duty to prevent officers like Joseph Longo from committing domestic violence by assuring that the candidate most qualified to prevent such is hired as police chief— cannot be said to have been a "clearly established" one. See Anderson, 317 F.3d at 197. Elected executives on occasion appoint cronies of questionable qualification to important government positions, and such appointments have not been held to implicate the Fifth or Fourteenth Amendments to the U.S. Constitution. Indeed, we know of no case, in our circuit or any other, that contemplates the existence of a duty like the one that the plaintiff's assert here. Such a duty certainly was not "clearly established" when Roefaro hired LaBella as police chief or when Joseph Longo killed his wife.
In addition to the allegations listed above, the amended complaint contains several conclusory allegations against "the defendants" collectively that do not distinguish between the individual defendants. For example, the plaintiff's allege:
Am. Compl. ¶ 47. The qualified immunity doctrine certainly does not permit government officials to turn a blind eye to or encourage such conduct. See, e.g., Okin, 577 F.3d at 434 (concluding that "the state-created danger theory, at the time of defendants' actions here, clearly established that police officers are prohibited from affirmatively contributing to the vulnerability of a known victim by engaging in conduct, whether explicit or implicit, that encourages intentional violence against the victim, and as that is the substantive due process violation alleged here, qualified immunity does not apply"). But in the present case, the plaintiffs' broad and conclusory allegations against "the defendants" as a group do not suffice to overcome Roefaro's individual qualified immunity.
For the foregoing reasons, the judgment is AFFIRMED with respect to LaBella but REVERSED with respect to Roefaro. The case is remanded with directions to enter judgment for Roefaro.
Gary P. Clements, Loyola Death Penalty Resource Center, New Orleans, LA.
Thomas J. McIntyre, Senior Attorney, Office of Information & Privacy, United States Department of Justice, Washington, DC.
URBINA, District Judge.
Granting Defendants' Motion for Summary Judgment.
Upon consideration of the parties' submissions, the applicable law, and the entire record,
Plaintiff in this case is a federal death row inmate convicted of several murder charges. By letter dated February 3, 1995, plaintiff submitted a FOIA request to FBI Headquarters ("FBIHQ") for records concerning himself, maintained at FBIHQ and at the FBI offices at Shreveport and New Orleans, Louisiana.
By letter dated March 2, 1995, the FBI New Orleans Field Office advised plaintiff that his request to the Shreveport Resident Agency had been forwarded to the New Orleans Field Office for processing.
FBIHQ notified plaintiff by letter dated March 14, 1995 that it had received plaintiff's request.
By letter dated May 5, 1995, FBIHQ advised plaintiff that the records responsive to his request had been processed and requested payment of fees in the amount of $34.90.
Plaintiff administratively appealed the denial of information withheld by the FBI by letter dated June 2, 1995.
Summary Judgment is appropriate where "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). In FOIA cases, a district court may grant summary judgment solely on the basis of agency affidavits if they are clear, specific, reasonably detailed, and there is no contradictory evidence on the record or evidence of agency bad faith. Hayden v. Nat'l Sec. Agency, 608 F.2d 1381, 1387 (D.C.Cir.1979), cert. denied, 446 U.S. 937, 100 S.Ct. 2156, 64 L.Ed.2d 790 (1980). A plaintiff can rebut the presumption of good faith in favor of the agency by proffering evidence of agency bad faith. Maynard v. CIA, 986 F.2d 547, 560 (1st Cir.1993) (internal citation omitted); see also SafeCard Servs. Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.Cir.1991); Kuffel v. United States Bureau of Prisons, 882 F.Supp. 1116, 1120 (D.D.C.1995) (citing Weisberg v. DOJ, 705 F.2d 1344, 1351 (D.C.Cir.1983)). The defendant agency has the burden of justifying nondisclosure. DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989); Voinche v. FBI, 940 F.Supp. 323, 327 (D.D.C.1996) (citing Nat'l Cable Television Ass'n. Inc. v. FCC, 479 F.2d 183, 186 (D.C.Cir.1973)).
An agency must respond to FOIA requests by conducting an adequate search. In reviewing a plaintiff's claim challenging the adequacy of an agency's search, courts employ a standard of reasonableness taking into account the particular circumstances of the case. Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C.Cir.1990); Kronberg v. DOJ, 875 F.Supp. 861, 869 (D.D.C.1995). In the courts' application of this reasonableness standard, it is well established that the determinative question is whether the search conducted by the agency was "reasonably calculated to uncover all relevant documents," Weisberg v. DOJ, 705 F.2d 1344, 1351 (D.C.Cir.1983), not whether additional responsive documents may exist. Steinberg v. DOJ, 23 F.3d 548, 551 (D.C.Cir.1994) (internal citations omitted); Summers v. DOJ, 934 F.Supp. 458, 460-61 (D.D.C.1996). Even where a requester submits subsequent clarifying requests and the government conducts additional searches in response to those requests, the government must still demonstrate "beyond a material doubt" that the search was reasonable. Truitt, 897 F.2d at 542-45 (internal citations omitted); Campbell v. DOJ, 1996 WL 554511 (D.D.C.1996).
A defendant agency can withstand a challenge to its search by demonstrating that it made a "good faith effort" and that the search was "reasonably expected to produce the information requested." Oglesby, 920 F.2d 57, 68 (D.C.Cir.1990). There is no requirement that an agency search every record system, Truitt, 897 F.2d at 542-45 (D.C.Cir.1990), nor that a search be perfect. Meeropol v. Meese, 790 F.2d 942, 956 (1986). In order for a district court to determine the adequacy of a search at the summary judgment phase, however, the agency must provide affidavits that "[set] forth the search terms and the type of search performed, and [aver] that all files likely to contain responsive materials (if such records exist) were searched." Oglesby v. DOJ, 920 F.2d at 68; see Nation Magazine v. United States Customs Serv., 71 F.3d 885, 890 (D.C.Cir.1995), remanded, 937 F.Supp. 39 (D.D.C.1996).
The Declaration of Kevin O'Brien ("O'Brien Decl.") in conjunction with the Supplemental Declaration of Kevin O'Brien ("Supp.Decl.") repudiate plaintiff's allegations.
The O'Brien Declaration details the various searches of the filing systems conducted by the FBI at three locations.
The court rules that the agency declarations and exhibits are sufficiently detailed to allow the court to conclude that the FBI's searches in question were reasonable given the parameters of plaintiff's initial request and subsequent inquiries. Specifically, the court notes that the declarations defendants have provided set forth the terms of the searches and aver that all files likely to contain responsive information were searched. Moreover, there has been no allegation of bad faith.
Upon consideration of the Supplemental Declaration of Kevin O'Brien, the court concludes that the search effort outlined in that declaration was adequate.
Having determined that the FBI searches of its Headquarters and its New Orleans Field Office were adequate, the court now turns to a review of the FOIA exemptions invoked. The government has withheld documents pursuant to the law enforcement exception, 5 U.S.C. § 552(b)(7) ("Exemption (b)(7)"). As a preliminary matter, the court must ascertain whether the records withheld were compiled for law enforcement purposes. A district court reviews an agency exemption claim de novo and has the explicit authority and discretion to conduct its own in camera review of agency files to determine the applicability of the invoked exemptions. The district court shall base its determinations on whether to conduct an in camera review on the sufficiency of the government's affidavits. Quinon v. FBI, 86 F.3d 1222, 1227 (D.C.Cir.1996) (quoting S.Conf.Rep. No. 1200, 93d Cong., 2d Sess. 9 (1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6287).
Access to law enforcement records is limited by the six subcategories delineated under § 552(b)(7) of the FOIA. The government has withheld certain materials from plaintiff pursuant to 7(C), 7(D), and 7(E). Exemption 7 reads, in pertinent part:
5 U.S.C. § 552(b)(7). In order to withhold documents under any Exemption 7 subcategory, the agency must initially show that the record was compiled for a law enforcement purpose. The D.C. Circuit has held that "less exacting proof" and a "more deferential attitude" are justified with respect to the FBI. Pratt v. Webster, 673 F.2d 408, 418-21 (D.C.Cir.1982). Nevertheless, agencies like the FBI, where criminal investigations are a primary duty, are still required to demonstrate the existence of a "nexus between [their] activit [ies] and [their] law enforcement duties" for each document withheld. Keys v. United States Dep't of Justice, 830 F.2d 337, 340 (D.C.Cir.1987).
In the present case, the government avers that the records withheld under Exemption 7 were compiled for law enforcement purposes in satisfaction of the exemption's threshold requirement. With the exception of a one-page document, all other responsive files were compiled in connection with the FBI's efforts to assist the Shreveport Police Department in solving a series of local homicides.
Upon conducting an in camera review of 9A-NO-59359-14, the court found that the document was created in the process of the FBI's investigation of a criminal violation that occurred subsequent to plaintiff's prosecution and sentencing. Consequently, the court determines that this document was indeed created for law enforcement purposes. Accordingly, the court concludes upon review of the supporting declarations and exhibits that the government has satisfied its threshold showing under Exemption 7, including the single page document 9A-NO-59359-14. Each FOIA exemption invoked is discussed seriatim.
Defendants divided into five categories the types of information Exemption 7(C) allegedly safeguards from disclosure in the present case: 1) information pertaining to law enforcement personnel; 2) names of sources or potential sources of information; 3) names and identifying information regarding individuals of investigative interest to the FBI and local law enforcement officials; 4) identities of crime victims; and 5) identities of third parties mentioned in investigative files. In its opposition, plaintiff only challenges the non-disclosure of the first category, information pertaining to law enforcement personnel. See Pl. Opp. at 3.
In the instant case, plaintiff states that the primary purpose for requesting the files is to serve the "public interest . . . by a full and complete examination of all aspects of the crime and the appropriateness of the sentence of death." Plaintiff's FOIA request at Def.Mem., Exh. A-1. Plaintiff asserts that the public interest requires confidence in the judicial system. Id. Given plaintiff's stated purpose, which appears to question the judicial process and not the FBI's performance of its investigatory duties, there is no nexus between the asserted public interest and the substance of plaintiff's request. Even if plaintiff's stated purpose did concern FBI operations, plaintiff still fails to demonstrate an overriding public interest which would warrant disclosure because plaintiff presents no factual basis upon which the court can find that there exists a question as to the FBI's performance of its duties. Tanks, 1996 WL 293531, at *4 (D.D.C.1996); Regime, 775 F.Supp. at 11. Specifically, plaintiff has offered no evidence that the disclosure of the individuals' identities would shed light on the FBI's conduct with respect to its investigations. See Paranee v. FBI, 908 F.Supp. 24, 27 (D.D.C.1995).
The court concludes that because plaintiff has failed to demonstrate an overriding public interest in revealing the information in question, the agency properly invoked exemption 7(C) to protect the identities of individuals involved in the FBI investigations.
Exemption 7(D) protects the disclosure of information gleaned from and about confidential sources. The exemption governs two types of confidentiality: express and implied. Express assurances of confidentiality are vigorously protected under Exemption 7(D). Implied assurances of confidentiality, which "are inherently implicit when the FBI solicits information," are sometimes protected. Keys v. DOJ, 830 F.2d 337, 345 (D.C.Cir.1987) (internal quotations omitted).
Under DOJ v. Landano, the government is not entitled to a presumption of confidentiality for all sources who supply information to the FBI; assurances of confidentiality, however, may be inferred under certain circumstances. DOJ v. Landano, 508 U.S. 165, 113 S.Ct. 2014, 124 L.Ed.2d 84 (1993). In Landano, the Court held that an implied grant of confidentiality can be inferred when 1) the character of the crime at issue, and 2) the source's relation to the crime is such that the source would not have given the information to the agency without believing that it would be kept confidential. Id. at 175.
The FBI invoked Exemption 7(D) to withhold 1) information provided by local law enforcement authorities to the FBI's National Center for the Analysis of Violent Crime ("NCAVC") as part of its Violent Crime Apprehension Program ("VICAP"),
In conclusion, the information in the document was collected through implied assurances of confidentiality as is apparent from the character of the crime, the source's relation to it, and the document itself. The court concludes that the government properly invoked Exemption (7) (D) to withhold New Orleans Cross Reference 9A-NO-59359-14.
Exemption 7(E) applies to information involving obscure or secret techniques. Jaffe v. CIA, 573 F.Supp. 377, 387 (D.D .C.1983). It is well established that Exemption 7(E) does not extend to "routine techniques . . . well known to the public." S.Rep. No. 221, 98th Cong., 1st Sess. 25 (1983) (internal citation omitted).
In the present case, the information withheld under Exemption 7(E) pertained to the compilation of Criminal Investigative Analysis and Criminal Personality Profiles prepared by the Behavioral Science Unit of the FBI's NCAVC.
Plaintiff's opposition does not challenge defendants' invocation of Exemption 7(E). Nevertheless, upon review of the record and the relevant law, the court concludes that the FBI's use of Exemption 7(E) was proper.
Plaintiff's Opposition requested a continuance in order to conduct discovery pursuant to Rule 56(g) of the Federal Rules of Civil Procedure. Rule 56(g) provides that a court may deny a motion for summary judgment or order a continuance to permit discovery if the party opposing the motion.
In the instant case, the court denies plaintiffs' request for discovery for two reasons. First, similar to Strang, plaintiff in the present case never offered the requisite explanation. Id. Plaintiff merely stated that he is entitled to discovery but failed to offer specific reasons why, absent discovery, plaintiff could not present by affidavit facts to justify plaintiffs' position as to defendants' summary judgment motion.
For the reasons stated above, the court grants defendants' motion for summary judgment.
Accordingly, it is this 26th day of March, 1997,
ORDERED that defendants' motion for summary judgment be and is hereby granted.
FURTHER ORDERED that judgment be and is hereby entered in favor of defendant.
SO ORDERED.
Joseph W. Kennedy, Jr., Rochester, NY, for plaintiff, pro se.
Christopher V. Taffe, Assistant U.S. Attorney, W.D.N.Y., Rochester, New York, for defendant.
SIRAGUSA, J.
Plaintiff Joseph W. Kennedy, Jr. ("plaintiff') was convicted on April 9, 1999 on three counts of bankruptcy fraud in the case of United States v. Joseph W. Kennedy, No. 98-CR-6049. On April 26, 1999, this Court requested that, prior to sentencing, the corporate book introduced by plaintiff in his defense be examined by the Federal Bureau of Investigations ("FBI") laboratory for authentication and aging. The U.S. Secret Service reported to the Court that the inks used were consistent with the types available on the dates of the signatures on the corporate documents.
On January 9, 2001, plaintiff submitted to the FBI a FOIA request for all information relating to physical examinations requested or performed on sixteen documents referenced on a 7-1 report dated July 30, 1999. Compl. [# 1], Ex. A. In addition to this blanket request, plaintiff specifically sought copies of "the communication dated April 28, 1999" and of the documents referred to as enclosures on a 7-1 report dated July 30, 1999. Id. Finally, he requested that, should any documents be withheld, the agency provide him with a "Vaughn Index," in accordance with the holding in Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977 (1974).
By letter dated January 29, 2001, the FBI acknowledged receipt of plaintiff's FOIA request. Compl. [# 1], Ex. D. On March 23, 2001, plaintiff notified the FBI of his change of address, and the FBI acknowledged this notification on April 13, 2001. Id., Exs. E & F. On December 11, 2001, plaintiff sent a follow-up letter to which he received no response. Id., Ex. G. On January 13, 2003, he informed the FBI that if he did not receive the requested information within twenty days, he would seek relief in court.
On February 6, 2003, the FBI responded by stating that a search of the automated indices to the Central Records System files at FBI Headquarters had not located any responsive documents. Id., Ex. J.
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "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). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir.1996) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)), cert denied, 517 U.S. 1190 (1996).
The burden then shifts to the non-moving party to demonstrate "specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). To do this, the non-moving party must present evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 249. Summary judgment is appropriate only where, "after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the nonmoving party." Leon v. Murphy, 988 F.2d 303, 308 (2d Cir.1993). The parties may only carry their respective burdens by producing evidentiary proof in admissible form. FED. R. CIV. P. 56(e). The underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed in the light most favorable to the nonmoving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Further, where a party is appearing pro se, the court must read his or her papers liberally and must interpret them to raise the strongest arguments they suggest. Burgos v. Hoplins, 14 F.3d 787, 790 (2d Cir.1994).
To prevail on a motion for summary judgment in a FOIA case, a defending agency must show (1) that its search was adequate, and (2) that any information withheld falls within an exception to FOIA. Carney v. U. S. Dep't of Justice, 19 F.3d 807, 812 (2d Cir.1994) (citing 5 U.S.C. § 552(a)(4)(B) and EPA v. Mink, 410 U.S. 73, 79 (1973)). Though the district court must be satisfied that all appropriate files have been searched, a search may be reasonable and adequate "even if it fails to produce all relevant material. The agency is not expected to take extraordinary measures to find the requested records, but only to conduct a search reasonably designed to identify and locate responsive documents." Garcia v. U.S. Dep't of Justice, 181 F.Supp.2d 356, 368 (S.D.N.Y.2002) (internal quotation marks and citations omitted). Exceptions to FOIA, on the other hand, must be narrowly construed since "disclosure, not secrecy, is the dominant objective of the Act." Dep't of the Air Force v. Rose, 425 U.S. 352, 361 (1976).
Plaintiff maintains that defendant did not perform an adequate search and that documents are being improperly withheld from him. Defendant disputes these assertions and also offers that the redactions in the released documents are proper. The Court will first consider the application of the Privacy Act in this matter. Second, the Court will address the redactions. Third, the Court will consider the adequacy of defendant's search and the possible withholding of additional documents. Fourth, the Court will consider plaintiff's request for in camera review of the documents.
The Privacy Act does not require disclosure of records that are maintained by agencies principally engaged in criminal law enforcement and that consist of, "(C) reports identifiable to an individual complied at any stage of the process of enforcement of the criminal laws from arrest or indictment through release from supervision." § 552a(j)(2). Clearly this exempts from disclosure under the Privacy Act records compiled by the FBI as part of a presentencing investigation following plaintiff's conviction for bankruptcy fraud. The Privacy Act, therefore, does not provide a basis for plaintiff to compel defendant to release to him the information he seeks.
The redactions in the documents released to plaintiff under FOIA consist only of the names of particular FBI agents and support personnel, and third parties merely mentioned in the documents, but not themselves subjects of FBI investigation. Keeley Decl. [# 16], ¶¶ 26-28. The redaction of this material does not appear to be an issue of concern to plaintiff. Certainly he offers no argument that he is entitled to this information, and the exemptions are justified on their face. As the Second Circuit has explained, "[e]xemption (b)(7)(C) covers investigatory records compiled for law enforcement purposes to the extent that they constitute an unwarranted invasion of personal privacy. This exemption protects the identities of investigative agents and of individuals under investigation or of investigatory interest." Doherty v. U. Dept of Justice, 775 F.2d 49, 52 (2d Cir.1985). In the absence of any evidence whatsoever of a public interest in disclosure, the privacy interests of the individuals in question must be preserved. To the extent that plaintiff may be disputing these redactions, therefore, defendant's application is granted.
Defendant first responded to plaintiff's request merely by searching the automated indices to the Central Records System files at FBI Headquarters. Keeley Decl. [# 16], ¶ 9. Defendant does not assert that this was itself an adequate response to plaintiff's FOIA request. At some unspecified time, however, the FBI initiated what it curiously terms a "re-review." Id., ¶ 17. The FBI's Record/Information Dissemination Section requested a hand search of the FBI Laboratory in Quantico, Virginia, and it was this hand search that produced the documents eventually released to plaintiff. Id. Defendant maintains that it performed an adequate search because, "[i]n light of the nature of plaintiff's FOIA request . . . the personnel in the FBI Laboratory were the most likely to either possess any potentially responsive records or know where responsive documents could be located." Id.
The Court is not satisfied that defendant's search was "reasonably designed to identify and locate responsive documents." Lawyers Comm. for Human Rights v. INS, 721 F.Supp. 552, 556 (S.D .N.Y.1989). Certainly the two locations searched were appropriately chosen, but they are not sufficient. The Buffalo Field Office should also have been searched. Though defendant did inform plaintiff that he could write directly to individual field offices to request that they search their files, this was not plaintiff's obligation. Plaintiff's FOIA request specifically mentioned the Buffalo Field Office. Keeley Decl. [# 16], Ex. A. A reasonable search, therefore, would have included the Buffalo Field Office. Cf. Kowalczyk v. U.S. Dep't of Justice, 73 F.3d 386, 389 (D.C.Cir.1996) (finding FBI search appropriate despite lack of search of the New York Field Office because plaintiff's FOIA request did not specifically refer to that office and "[t]he information in [plaintiff's] request, therefore, did not enable the FBI to determine that the New York field office had responsive records.").
Because defendant's search was inadequate, the Court is unable to conclude, as a matter of law, that defendant is not improperly withholding documents. Defendant, therefore, is not entitled to summary judgment with respect to plaintiff's claim that he is entitled to the release of additional documents.
Finally, plaintiff apparently requests in camera review of all documents: "Plaintiff requests that this Honorable Court order the FBI to turn over all requested documents and information to this Court for review. Plaintiff requests that this Court make the determination which documents be [sic] withheld and/or redacted." Pl.'s Resp. [# 19], at 5. FOIA specifically provides for the possibility of in camera review by the district court. § 552(a)(4)(B). However, "[i ]n camera review is considered the exception, not the rule, and the propriety of such review is a matter entrusted to the district court's discretion." Local 3, Internat'l Brotherhood of Elec. Workers v. NLRB, 845 F.2d 1177, 1180 (2d Cir.1988). It is unnecessary when the government's affidavits are sufficient, unless there is evidence of agency bad faith. See Brown, 658 F.2d at 74.
Accordingly, defendant's application [# 13] is granted in part and denied in part. To the extent that plaintiff may have been contesting the redactions in documents defendant has already released to him, defendant is entitled to judgment in its favor. With respect to plaintiff's claims that additional documents are being improperly withheld from him, defendant has failed to carry its burden and the application for summary judgment in that regard is denied. As to plaintiff's request for in camera review of documents, it is denied. In accordance with these determinations, the Court hereby orders the parties to a conference at 1290 U.S. Courthouse, 100 State Street, Rochester, New York, on October 19, 2004, at 2:00 p.m.
SO ORDERED.
Daire Brian Irwin, Buffalo, NY, for Plaintiff.
Kathryn L. Smith, U.S. Attorney's Office, Rochester, NY, Michael S. Cerrone, U.S. Attorney's Office, Buffalo, NY, for Defendant.
WILLIAM M. SKRETNY, District Judge.
Presently before this Court are the parties' competing Motions for Summary Judgment, brought under Rule 56 of the Federal Rules of Civil Procedure. (Docket Nos. 16, 23.) For the following reasons, Defendant's motion is granted and Plaintiff's motion is denied.
The facts concerning Plaintiff's FOIA request are not in dispute.
On January 31, 2012, Plaintiff submitted a FOIA request to the Federal Bureau of Investigation seeking copies of all records pertaining to the Occupy Buffalo Movement. (Defendant's Rule 56 Statement of Undisputed Facts ("Defendant's Statement"), Docket No. 17, ¶ 2.) The FBI responded by letter dated February 6, 2012, wherein it acknowledged receipt of Plaintiff's request and advised that a search for responsive documents in the Central Records System ("CRS") was underway. (Defendant's Statement, ¶ 3.)
But the FBI failed to respond to Plaintiff's request within the statutorily mandated 20 working days,
On May 21, 2012, the FBI notified Plaintiff that an analyst was reviewing his request. (Defendant's Statement, ¶ 6.) Approximately two months later, OIP informed Plaintiff that it had denied his appeal, because the FBI had not yet made an adverse determination that it could review. (Defendant's Statement, ¶ 7.) And although it noted that the FBI was processing his request, OIP further advised Plaintiff that the FOIA authorizes a requester to file a federal lawsuit when an agency takes longer than the statutory time period to respond to a request. (Defendant's Statement, ¶ 7.)
Plaintiff subsequently filed suit in this court on August 27, 2012. (Defendant's Statement, ¶ 8; Docket No. 1.) Less than one month later, on September 14, 2012, the FBI notified Plaintiff that it had discovered five pages of records responsive to his request but was withholding them in their entirety under certain FOIA exemptions. (Defendant's Statement, ¶ 9.) The notification was sent by David M. Hardy, Section Chief of the Record/Information Dissemination Section, Records Management Division, FBI. (Defendant's Statement, Exhibit G.)
On February 19, 2013, Defendant filed the instant Motion for Summary Judgment, along with its Vaughn index.
Federal courts are required to conduct de novo review of an agency's decision to withhold requested records under the FOIA. Massey v. FBI, 3 F.3d 620, 622 (2d Cir.1993). The preferred method of doing so is by summary judgment. See Fox News Network, LLC v. U. Dep't of the Treasury, 739 F.Supp.2d 515, 532 (S.D.N.Y.2010); Jones-Edwards v. Appeal Bd. of NSA, 352 F.Supp.2d 420, 423 (S.D.N.Y.2005).
Summary judgment is appropriate if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue of material fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
In deciding a motion for summary judgment, the evidence and the inferences drawn from the evidence must be "viewed in the light most favorable to the party opposing the motion." Addickes v. S.H. Kress and Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970). "Only when reasonable minds could not differ as to the import of evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.1991).
A plaintiff is entitled to summary judgment in a FOIA case "when an agency seeks to protect material which, even on the agency's version of the facts, falls outside the proffered exemption." New York Times Co. v. U. Dep't of Def, 499 F.Supp.2d 501, 509 (S.D.N.Y.2007).
Conversely, an agency is entitled to summary judgment when it has thoroughly searched for responsive records and has articulated reasonably detailed explanations why any withheld documents fall within an exemption. Carney v. U. Dep't of Justice, 19 F.3d 807, 812 (2d Cir.1994); see also Wilner v. Nat'l Sec. Agency, 592 F.3d 60, 69 (2d Cir.2009). To carry its burden, the defending agency may rely on a Vaughn index, which consists of "affidavits to the court that describe with reasonable specificity the nature of the documents at issue and the justification for nondisclosure; the description provided in the affidavits must show that the information logically falls within the claimed exemption." Lesar v. United States Dep't of Justice, 636 F.2d 472, 481 (D.C.Cir.1980); see also Halpern v. Fed Bureau of Investigation, 181 F.3d 279, 291 (2d Cir.1999) (citing Lesar.) The function of the Vaughn index is three-fold: "(1) it forces the government to analyze carefully any material withheld, (2) it enables the trial court to fulfill its duty of ruling on the applicability of the exemption, and (3) it enables the adversary system to operate by giving the requester as much information as possible, on the basis of which he can present his case to the trial court." Halpern, 181 F.3d at 291 (quoting Keys v. United States Dept of Justice, 830 F.2d 337, 349 (D.C.Cir.1987)).
In response to a request for records under the FOIA, agencies are required to conduct a search "reasonably designed to identify and locate responsive documents" but need not "take extraordinary measures to find the requested records." Kennedy v. United States Dep't of Justice, 03-CV-6077, 2004 WL 2284691, at *2 (W.D.N.Y.2004) (citing Garcia, 181 F.Supp.2d at 368). If an agency sufficiently demonstrates that it has conducted a reasonable search for responsive documents, it has fulfilled its obligations under the FOIA. See Garcia, 181 F.Supp.2d at 366 (citing Weisberg v. United States Dep't of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984)). The agency can meet its burden of showing a good faith search by supplying affidavits from appropriate officials setting forth facts indicating that a thorough search was conducted. See Rabin v. United States Dep't of State, 980 F.Supp. 116, 120 (E.D.N.Y.1997).
The Vaughn index in this case was prepared by David M. Hardy, Section Chief of the Record/Information Dissemination Section, Records Management Division, FBI. (Hardy Decl., ¶¶ 1-5.) Therein, Hardy states that in response to Plaintiffs FOIA request, the FBI searched its CRS using search terms that included "Occupy Buffalo," "Occupy Buffalo Movement," and "Buffalo Occupy Movement." (Hardy Decl., ¶ 20.) It also reviewed crossreference material by searching its Request Tracking System ("RTS"). (Hardy Decl., ¶ 21.) Hardy explains at length the content, organization, and manner of access of these indices. (Hardy Decl., ¶¶ 14-19; Supp. Hardy Decl., ¶¶ 5, 6, 8.) The searches yielded 454 pages of potentially responsive documents, which after agency review, resulted in five responsive pages. (Hardy Decl., ¶ 22; Supp. Hardy Decl., ¶ 10.)
Plaintiff next maintains that the FBI has not provided sufficient details about the declassification of three of the five responsive documents referenced in the Vaughn index. (Hardy Decl., ¶ 23.) In particular, Plaintiff complains that the Vaughn index "does not include the type of classification . . ., identity of the classifier, date or event for automatic declassification or classification review or downgrading." (Docket No. 23-2, p. 4.) The FBI, however, is not asserting an exemption under the FOIA based on classified status, and Plaintiff has provided no authority requiring an agency to provide the information he requests in the absence of such an assertion. (Hardy Decl., ¶ 11.)
Next, Plaintiff suggests that the FBI may be withholding FD-71a complaint forms and FD-302 record-ofinterview forms. (Docket No. 23-2, pp. 3, 4.) The FBI, however, did not conduct any interviews (Supp. Hardy Decl., ¶ 10 n. 3), and Plaintiff offers nothing but surmise and speculation that FD-71a forms may exist. See Grand Cent., 166 F.3d at 489 (noting that the presumption of good faith enjoyed by agency affidavits is not overcome by bare allegations or speculative claims that additional documents exist).
Finally, Plaintiff asserts that the FBI failed to conduct a "text search" of the ECF index. (Docket No. 23-2, p. 5.) But the Vaughn index makes clear that the FBI performed such a search, and in fact, it was this search that yielded the five responsive documents. (Hardy Decl., ¶ 21; Supp. Hardy Decl., ¶ 10.)
Consequently, finding no merit in Plaintiffs contentions otherwise, this Court finds that Defendant conducted a reasonable search for responsive documents, thereby fulfilling its search obligations under the FOIA. See Garcia, 181 F.Supp.2d at 366.
Exemptions in the FOIA are to be "narrowly construed since `disclosure, not secrecy, is the dominant objective of the Act.'" Kennedy, 2004 WL 2284691, at *2 (quoting Dep't of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976)). Nonetheless, when responsive records fall within any of the applicable exemptions, disclosure is not required. See FLRA v. United States Dep't of Veterans Affairs, 958 F.2d 503, 508 (2d Cir.1992).
(Hardy Decl., ¶ 24.)
As stated above, there are five pages responsive to Plaintiffs FOIA request. The five pages consist of two separate reports from "Guardian," the FBI's data system devoted to supporting the FBI's role in defending terrorism threats. (Hardy Decl., ¶ 23.) The first report consists of two pages (Kuzma-1 and Kuzma-2) and is dated November 2011. (Hardy Decl., ¶ 23.) The second report consists of three pages (Kuzma-3 through Kuzma-5) and is dated January 2012. (Hardy Decl., ¶ 23.) The second report contains the same information as the first report, with the addition of follow-up information, such as law enforcement checks, research, and current disposition. (Hardy Decl., ¶ 23.)
The FBI withheld all five pages in their entirety pursuant to the exemptions identified above. (Hardy Decl., Exhibit H; Supp. Hardy Decl., ¶ 5.) Plaintiff challenges both the complete withholding of the five pages and the applicability of the claimed exemptions.
The FOIA requires government agencies to disclose "[a]ny reasonably segregable portion of a record . . . after deletion of the portions which are exempt." 5 U.S.C. § 552(b). Non-exempt portions of a record may be withheld only if they are "inextricably intertwined" with the exempt portions. See Inner City Press/Cmty. on the Move v. Bd. of Governors of the Fed. Reserve Sys., 463 F.3d 239, 249 n. 10 (2d Cir.2006). If an agency determines that non-exempt portions of a record are not segregable, it must justify that determination in detail. See Mead Data Cent., Inc. v. U. Dep't of Air Force, 566 F.2d 242, 261 (D.C.Cir.1977). In this regard, an agency is entitled to a presumption that it complied with the FOIA's segregability requirements. Sussman v. U. Marshals Serv., 494 F.3d 1106, 1117 (D.C.Cir.2007). A district court "must make specific findings of segregability regarding the documents to be withheld" before ruling that an asserted FOIA exemption is applicable. Id. at 1116.
Plaintiffs only response to the FBI's segregability determination is that "selective redactions should have been made to the responsive pages . . . [t]he FBI, however, elected not to do so." (Docket No. 23-2, p. 6.) This type of non-evidentiary, bald allegation is insufficient to rebut the presumption of regularity that the FBI complied with the FOIA's segregability requirements, especially since Plaintiffs contention that the FBI "elected not to do so" is specifically rebutted by Hardy's representation that "the FBI made every effort" to segregate portions of the records. Sussman, 494 F.3d at 1117.
Nor is it cause for in camera review. Although, the FOIA specifically provides for in camera review by the district court if necessary, see 5 U.S.C. § 552(a)(4)(B), the Second Circuit has adopted a restrained approach. "When a government agent can attest in a sworn affidavit that the redactions are necessary, and elaborate on the reasons for the redactions with sufficient specificity, the district court should be able to rule on the appropriateness of the redactions without conducting an in camera review of the redacted materials." Halpern, 181 F.3d at 287. But in camera review may be appropriate "where the record show[s] the reasons for withholding [are] vague or where the claims to withhold [are] too sweeping or suggestive of bad faith, or where it might be possible that the agency ha[s] exempted whole documents simply because there [is] some exempt material in them." Halpern, 181 F.3d at 292. This, however, is the exception, not the rule, and is not the case here. See Local 3, Ina Bhd. of Elec. Workers, 845 F.2d 1177, 1180 (2d Cir.1988) ("In camera review is considered the exception, not the rule, and the propriety of such review is a matter entrusted to the district court's discretion."); Kennedy, 2004 WL 2284691, at *4.
Consequently, this Court finds that Plaintiff has failed to rebut the presumption that Defendant has complied with its segregability and non-exempt disclosure requirements under the FOIA and has failed to show cause for in camera review.
Exemption 6 permits the withholding of "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." See 5 U.S.C. § 552(b)(6). It is intended to "protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information." U.S. Dept of State v. Washington Post Co., 456 U.S. 595, 599, 102 S.Ct. 1957, 72 L.Ed.2d 358 (1982).
In keeping with the purpose of the FOIA, it is the personal nature of the information contained in a record that controls, not the label on the file in which it is contained. See Washington Post, 456 U.S. at 601 ("The protection of an individual's right of privacy which Congress sought to achieve by preventing the disclosure of information which might harm the individual surely was not intended to turn upon the label of the file which contains the damaging information." (internal alterations and citations omitted)). Here, this Court finds that the Guardian investigative records qualify as "similar files" given the personal nature of the information contained therein.
Second, if the record is a personnel or medical or similar file, the court must "balance the public need for the information against the individual's privacy interest in order to assess whether disclosure would constitute a clearly unwarranted invasion of personal privacy." Cook, 758 F.3d at 174 (quoting Associated Press v. U.S. Dep't of Del, 554 F.3d 274, 291 (2d Cir.2009). In this regard, the court must determine "whether disclosure of the files would compromise a substantial, as opposed to de minimis, privacy interest, because if no significant privacy interest is implicated FOIA demands disclosure." Long v. Office of Pers. Mgmt., 692 F.3d 185, 191 (2d Cir.2012) (quoting Multi Ag Medial LLC v. Dep't of Agric., 515 F.3d 1224, 1229 (D.C.Cir.2008)). On the other hand, the court must also consider "the extent to which disclosure would serve the `core purpose of the FOIA,' which is `contribut[ing] significantly to public understanding of the operations or activities of the government." U.S. Dep't of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 495, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994) (quoting U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 775, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989)).
Exemption 7(C) exempts from disclosure any records or information compiled for law enforcement purposes that could reasonably be expected to constitute an unwarranted invasion of personal privacy. See 5 U.S.C. § 552(b)(7)(C). It is properly invoked when the invasion of personal privacy outweighs the public's interest in disclosure. See Nat'l. Archives and Records Admin. v. Favish, 542 U.S. 157, 171-72, 124 S.Ct. 1570, 1580-81, 158 L.Ed.2d 319 (2004). This exemption is more expansive than Exemption 6, because it "applies to any disclosure that could reasonably be expected to constitute an invasion of privacy that is unwarranted." Associated Press v. Dep't of Justice, No. 06 Civ. 1758, 2007 WL 737476, at *4 (S.D.N.Y. Mar. 7, 2007). Because Exemptions 6 and 7(C) both balance individuals' privacy interests under similar standards, they are often analyzed together.
The FBI asserts that these individuals have strong privacy interests in keeping their identities and personal information confidential, interests that include personal safety, witness safety, protection of reputation, protection of sources, and avoidance of unwarranted suspicion. (Hardy Decl., ¶¶ 33-39.) In contrast, the FBI maintains that the public's need for the information is minimal, if any, as the information sheds no light on the operations or activities of the FBI. (Hardy Decl., ¶¶ 36, 39.)
Plaintiffs objection to the FBI's Exemptions 6 and 7(C) withholdings consists solely of its contention that "[p]rivacy interests do not outweigh the public interest in shedding light on FBI surveillance of Occupy Buffalo, a peaceful political movement." (Docket No. 23-2, p. 9. Plaintiff makes no effort, however, to explain how or why the disclosure of individuals' personal information would shed any light on the FBI's surveillance of Occupy Buffalo. Indeed, the FBI did not even have an investigative file concerning the Occupy Buffalo Movement; its role was limited to assisting local law enforcement with their investigative efforts. (Hardy Decl., ¶ 22.)
To the extent Plaintiffs submission can be read to suggest that the FBI acted improperly by assisting local law enforcement, Plaintiff must come forth with more than just that bare allegation. See Favish, 541 U.S. at 174 (where "the public interest being asserted is to show that responsible officials acted negligently or otherwise improperly in the performance of their duties, the requester must establish more than a bare suspicion in order to obtain disclosure"). Plaintiff has presented no evidence of impropriety or illegality by the FBI.
The Second Circuit has found it appropriate to redact information that, if released, would have disclosed "the identifies of FBI agents, cooperating witnesses and third parties, including cooperating law enforcement officials." Massey, 3 F.3d at 624. The circuit court explained that law enforcement officials have privacy interests in their own identities so that they can avoid being subjected to "embarrassment and harassment in the conduct of their official duties and personal affairs." Id. Third parties have an even stronger privacy interest, because revelation of their identities could suggest association or involvement in criminal activity or criminal investigation. See Reporters Comm., 489 U.S. at 767.
These privacy interests are weighed against the countervailing interests in public disclosure of government agency conduct. The public interest in learning the identities of law enforcement personnel is relatively small, particularly where the information provides little insight into the conduct and administration of criminal investigations. See Halpern, 181 F.3d at 297. Similarly, "there is little or no public interest in having the identities of private parties revealed because that information sheds little or no light on the FBI's performance." Id.
Exemption 7(D) exempts from disclosure any records or information compiled for law enforcement purposes, but only to the extent that the production of such records or information could reasonably be expected to disclose the identity of a confidential source, including a State, local or foreign agency or authority or any private institution that furnished information on a confidential basis. See 5 U.S.C. § 552(b)(7)(D). In the case of records or information compiled by a criminal law enforcement agency in the course of a criminal investigation, the information provided by a confidential source may also be withheld. Id.
But "the mere fact that a person or institution provides information to a law enforcement agency does not render that person a `confidential source' within the meaning of Exemption 7(D)." Campbell v. U.S. Dept of Justice, 164 F.3d 20, 34 (D.C.Cir.1998) (citing U.S. Dept of Justice v. Landano, 508 U.S. 165, 178, 113 S.Ct. 2014, 124 L.Ed.2d 84 (1993)). Rather, the exemption applies only when "the particular source spoke with an understanding that the communication would remain confidential." Landano, 508 U.S. at 178. "Such understandings are reasonable when the law enforcement agency receiving information provides either an express or implied assurance of confidentiality." Campbell, 164 F.3d at 34.
The FBI has invoked Exemption 7(D) to withhold the name, identifying data, and information provided by a confidential source under an implied assurance of confidentiality. (Hardy Decl., ¶ 43.) Along with the identity of the confidential source, the FBI withheld portions of interviews from which the confidential source could be identified. (Hardy Decl., ¶ 44.) The confidential source's position and the sensitive nature of the information he or she provided supports an inference that he or she provided the information with the expectation of confidentiality. (Hardy Decl., ¶ 44.) Information from anonymous sources also establishes that the confidential source expected his or her identity to remain confidential. (Hardy Decl., ¶44.) In the FBI's view, disclosure of the singular-in-nature information provided by the confidential source, which involved a potential threat to local security, would reveal the source's identity and defeat the FBI's interests in maintaining confidential sources. (Hardy Decl., ¶ 44.)
Plaintiff challenges the FBI's withholding under Exemption 7(D) on the grounds that it failed to adequately detail the threat reported by the confidential source. (Docket 23-2, p. 10.)
The Government may establish implied confidentiality if it demonstrates that the nature of the crime investigated and the source's relation to it give rise to an inference that the source provided information with the expectation of confidentiality. See Landano, 508 U.S. at 179. "An inference of confidentiality is typically found where the crime was of a serious or potentially violent nature and the source had a close relationship to the individuals being investigated." Garcia, 181 F.Supp. at 375. For example, a finding of an implied confidentiality agreement may be appropriate where an informant would not provide information out of fear of retaliation but for the promise of confidentiality. Id. at 179-80.
This Court finds that Defendant has sufficiently established an implied grant of confidentiality. Implied grant of confidentiality can be found based on "the nature of the crime that was investigated and the source's relation to it." Landano, 508 U.S. at 180. For example, a finding of implied confidentiality is appropriate with respect to sources who, absent confidentiality, might be worried about retaliation because of the subject matter. Id. at 179-80.
Here, the Vaughn index establishes that the confidential source was in a position to provide unique information concerning a potential threat to local security in connection with the Occupy Buffalo Movement and did so with the expectation that the information and his or her identity would remain confidential. (Hardy Decl., ¶ 44.) The Occupy Movement was highly publicized on a national and local level. Given this publicity and the singular nature of the information provided, it is reasonable to conclude that the confidential source provided the information with an expectation of confidentiality. This Court therefore finds that Defendant has adequately demonstrated an implied assurance of confidentiality exists.
The confidential source in this case is precisely the type of individual who reasonably would fear retaliation in the event of disclosure. This is particularly true given the highly publicized and politicized nature of the Occupy Movement. Plaintiffs contention that the FBI must provide more details about the potential threat ignores the fact that the singular nature of the information provided would necessarily reveal the confidential source's identity. (Hardy Decl., ¶ 44.)
Exemption 7(E) protects from disclosure "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law." 5 U.S.C. § 7(E).
Once it is determined that the information at issue was compiled for law enforcement purposes, as it has been here, see n. 11 supra, a court must determine whether release of the records or information would disclose (1) techniques or procedures for law enforcement investigations or prosecutions, or (2) guidelines for law enforcement investigations or prosecutions, if disclosure could reasonably be expected to risk circumvention of the law.
The FBI has asserted Exemption 7(E) to protect procedures and techniques used by the FBI when it receives an anonymous tip. (Hardy Decl., ¶ 46.) According to Hardy, public knowledge of these techniques could enable individuals to circumvent them, thereby diminishing the value of anonymous tips. (Hardy Decl., ¶ 46; Supp. Hardy Decl., ¶ 17.)
Plaintiff argues that the FBI's assertion of Exemption 7(E) is improper because it has failed to establish that its anonymous tip techniques and procedures are not generally known to the public. (Docket No. 23-2, p. 11.) This argument, however, is grounded in Plaintiffs mistaken belief that the FBI carries this burden. It does not.
Exemption 7(E) is limited to techniques and procedures not generally known to the public. See Doherty v. U.S. Dep't of Justice, 775 F.2d 49, 52 & n. 4 (2d Cir.1985). But "[w]hile the government retains the burden of persuasion that information is not subject to disclosure under FOIA, a party who asserts that material is publicly available carries the burden of production on that issue." Inner City Press, 463 F.3d at 245 (internal quotations and citations omitted; emphasis added). Moreover, "it is well-established that `an agency does not have to release all details concerning law enforcement techniques just because some aspects of them are known to the public.'" Bishop v. U.S. Dep't of Homeland Sec., No. 13 Civ. 8620(GWG), 2014 WL 4627519, at *8 (S.D.N.Y. Sept.16, 2014) (citing ACLU v. U.S. Dep't of Justice, No. 12 Civ. 7412(WHP), 2014 WL 956303, at *7 (S.D.N.Y. Mar.11, 2014)).
Here, Plaintiff has produced no evidence that the FBI's anonymous-tip techniques and procedures are publicly available. Hardy, in contrast, fully explains the secret nature of the information being withheld. (Supp. Hardy Decl., ¶ 17.) In the absence of such a showing by Plaintiff, this Court finds that the FBI's withholding of this information pursuant to Exemption 7(E) is proper.
IT HEREBY IS ORDERED, that Defendant's Motion for Summary Judgment (Docket No. 16) is GRANTED.
FURTHER, that Plaintiffs Cross Motion for Summary Judgment (Docket No. 23) is DENIED.
FURTHER, that the Clerk of Court is directed to CLOSE this case.
SO ORDERED.
Harold J. Scott, Elmira, NY, pro se.
Hon. Eric T. Schneiderman, Attorney General of the State of New York, The Capitol, Colleen D. Galligan, Esq., Assistant Attorney General, of Counsel, Albany, NY, for Defendants.
THOMAS J. McAVOY, Senior District Judge.
In the Report-Recommendation, dated August 28, 2014, Magistrate Judge Treece recommends that Defendants' motion to dismiss for failure to state a claim upon which relief can be granted, dkt. # 15, be granted in part and denied in part. Magistrate Judge Treece recommends that the motion be: granted with respect to Defendants Edna Aiken, Captain J. Facteau, and Randy Nichols; granted without prejudice with respect to Defendant Albert Prack; granted with respect to Plaintiffs claims that Defendant Peter Frederick violated his due process rights by failing to provide sufficient notice of the disciplinary re-hearing, failing to record the entire hearing, and improperly re-starting the hearing; and denied with respect to Plaintiffs claims that Defendant Frederick denied him the opportunity to present a defense and for being biased.
Plaintiff filed a timely objection to the Report-Recommendation pursuant to 28 U.S.C. § 636(b) (1). When objections to a magistrate judge's Report-Recommendation are lodged, the Court makes a "de novo determination of those portions of the report or specified proposed findings or recommendations to which the objection is made." 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 judge 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 the Plaintiffs objections, this Court has determined to accept the recommendation of Magistrate Judge Treece for the reasons stated in the Report-Recommendation.
It is therefore ordered that:
(1) Plaintiffs Objections, dkt. # 30, to the Report-Recommendation of Magistrate Judge Treece, dkt. # 25, are hereby OVERRULED;
(2) The Report-Recommendation is hereby ADOPTED;
(3) The Defendants' motion to dismiss, dkt. # 15, is hereby GRANTED in part and DENIED in part, as follows:
-v-
RANDOLPH F. TREECE, United States Magistrate Judge.
Pro se Plaintiff Harold J. Scott brings this action, pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his due process rights in connection with a Tier III Superintendent's Hearing held at Clinton Correctional Facility ("CCF"). See generally Dkt. No. 1, Compl. Defendants move to dismiss Plaintiffs Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6), on the grounds that Plaintiff fails to state a claim for which relief can be granted and that they are entitled to qualified immunity. See generally Dkt. No. 15-1, Defs.' Mem. 7 of Law. Plaintiff opposes the Motion. Dkt. No. 19, Pl.'s Mem. of Law. For the reasons stated below, we recommend that the Defendants' Motion be
On a motion to dismiss, the allegations of the complaint must be accepted as true. See Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972). The trial court's function "is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir.1980). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984).
"Generally, in determining a 12(b)(6) motion, the court may only consider those matters alleged in the complaint, documents attached to the complaint, . . . matters to which the court may take judicial notice[,]" as well as documents incorporated by reference in the complaint. Spence v. Senkowski, 1997 WL 394667, at *2 (N.D.N.Y. July 3, 1997) (citing Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir.1991)); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.1991) (citing Fed. R. Civ. P. 10(c)). Moreover, "even if not attached or incorporated by reference, a document `upon which [the complaint] solely relies and which is integral to the complaint' may be considered by the court in ruling on such a motion." Roth v. Jennings, 489 F.3d 499, 509 (2d Cir.2007) (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d at 47). However, "even if a document is `integral' to the complaint, it must be clear on the record that no dispute exists regarding the authenticity or accuracy of the document." Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir.2006). "It must also be clear that there exists no material disputed issues of fact regarding the relevance of the document." Id.
A motion to dismiss pursuant to Rule 12(b)(6) may not be granted so long as the plaintiffs complaint includes "enough facts to state a claim to relief that is plausible on its face." Bell Ad. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Ashcroft v. Iqbal, 556 U.S. at 697 (citing Twombly). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. at 678. This plausibility standard "is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. In this respect, to survive dismissal, a plaintiff "must provide the grounds upon which his claim rests through factual allegations sufficient `to raise a right to relief above the speculative level.'" ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007) (quoting Bell Ad Corp. v. Twombly, 440 U.S. at 555). Thus, in spite of the deference the court is bound to give to the plaintiffs allegations, it is not proper for the court to assume that "the [plaintiff] can prove facts [which he or she] has not alleged, or that the defendants have violated the . . . laws in ways that have not been alleged." Assoc. Gen. Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983). The process of determining whether a plaintiff has "nudged [his] claims . . . across the line from conceivable to plausible," entails a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Ashcroft v. Iqbal, 556 U.S. at 679-80.
With this standard in tow, we consider the plausibility of Plaintiff's Complaint.
The following summary is taken from Plaintiffs Complaint.
On May 5, 2010, while at CCF, Plaintiff was ordered to submit a urine specimen for drug testing. Compl. at ¶ 6-1. Two days later, on May 7, Defendant Randy Nichols, a Corrections Officer at Clinton Annex, tested Plaintiffs urine using a SYVA VIVA—JR Emit drug test. Plaintiffs urine twice tested positive for opiates. Id. at ¶ 6-3. Defendant Nichols verified with CCF's main clinic that none of Plaintiffs medications could issue a false urine result. Id. at ¶ 6-4. Defendant Nichols issued a Misbehavior Report and had Plaintiff confined to keeplock status. Id. at ¶6-6.
Defendant Aiken left and returned with "a copy of the DOCS computer entry stating that Officer Nichols[ ] had passed training on the SYVA/ETS System on September 23, 2008, and a copy of Directive No. 4937." Id. at ¶ 6-13. Defendant Aiken did not provide Plaintiff with any other requested document, but informed him that "her secretary was `gathering the remaining documents on the list' and she would put them in the hearing officer's package to be given to him at the hearing." Id. at ¶¶ 6-14 & 6-15.
On May 13, 2010, Defendant Peter Frederick, a senior counselor at CCF, commenced a Tier III Superintendent's Hearing. Id. at ¶ 6-19. Plaintiff pled not guilty to drug use, objected to the fact that he had not received certain documents as promised, and pointed out that Defendant Aiken claimed she would place certain documents in the Hearing package. Id. at ¶¶ 6-20 & 6-21. Upon reviewing the Hearing package, Defendant Frederick found a "Certificate of Training for Officer RANDY E. NICHOLS[,] dated September 23-24, 2008, on a[n] EMIT VIVA—JR SYSTEM, a maintenance record from Siemen's Healthcare Diagnostics [,] dated April 15, 2010, regarding repairs[,] and daily and weekly maintenance records, but nothing else." Id. at ¶ 6-23. Defendant Frederick did not provide copies of these documents to Plaintiff. Id. at ¶ 6-24. Defendant Frederick determined that the other documents Plaintiff requested were irrelevant and denied their production or introduction at the Hearing. Id. at ¶ 6-25.
On May 17, 2010, the Hearing reconvened and Defendant Frederick provided Plaintiff with a copy of the CCF-main security urine log entries, but noted that the EMIT OPIATE ASSAY instruction sheet was irrelevant. Id. at ¶ 6-38. Plaintiff reinstated a previous objection regarding Defendant Frederick acting as both the hearing officer and his employee-assistant. Id. at ¶ 6-39. Defendant Frederick responded that "as long as he can go looking for the information, he can do both. [I]ts [his] prerogative to find out the information [he] need[s]; its [his] choice." Id. at ¶ 6-40. Plaintiff objected to not being able to question the officer who had given off-the-record testimony as to the reliability of the urinalysis machine, to which Defendant Frederick remarked that, "it was established that the machine is reliable." Id. at ¶¶ 6-41 through 6-44. Plaintiff then asked about the formal procedure recommended by Clinton Annex for forwarding his urine specimen, and the Hearing was adjourned so that the testing officer could be called as a witness. Id. at ¶¶ 6-45 & 6-46.
On May 25, 2010, the Hearing was reconvened and Defendant Nichols testified over the phone. Id. at ¶ 6-47. Plaintiff sought to ask Defendant Nichols a series of questions regarding his training, at least some of which were designed to "expose weaknesses in his testing ability." Id. at ¶¶ 6-49 through 6-53. Defendant Frederick refused to allow Plaintiff to ask several questions on "relevancy grounds claiming that it was not necessary to answer `because neither you nor I can understand the technical stuff, we don't have the skill and training to understand those things; what matters is that the machine is reliable and was working properly.' Id. at ¶ 6-54 (emphasis in original).
In the middle of questioning Defendant Nichols, the tape recorder shut-off. Id. at ¶ 6-57. Defendant Frederick turned the cassette tape over and started recording over previously recorded testimony and objections, and then adjourned the Hearing for disposition. Id. at ¶ 6-59. Upon realizing this technical snafu, Defendant Frederick sought Plaintiff's permission to begin the Hearing anew, but Plaintiff refused to consent. Id. at ¶¶ 6-60 through 6-62. Defendant Frederick then claimed that Defendant Captain Facteau advised him to start the Hearing over. Id. at ¶ 6-63. Plaintiff objected claiming that Defendant Facteau had no authority to order or advise Frederick to begin a new hearing, but Defendant Frederick started the Hearing over anyway. Id. at ¶¶ 6-64 through 6-66. At that point, Defendant Frederick noted that a copy of Appendix C had not been provided to Plaintiff with his Misbehavior Report and was not in the Hearing package; he adjourned the Hearing, retrieved a copy of the Appendix and, after giving Plaintiff approximately twenty-one minutes to review the Appendix, reconvened the Hearing and reviewed the Appendix on the record. Id. at ¶¶ 6-67 through 6-71. Plaintiff once again pled not guilty to the charge of drug use. The Hearing Officer reused Defendant Nichols's testimony from the prior Hearing and allowed Plaintiff to restate some of his previous objections. Id. at ¶¶ 6-72 through 6-74.
The Hearing concluded on May 25, 2010, and Plaintiff was found guilty of drug use and assessed a penalty of five months in special housing unit ("SHU") confinement, with one month deferred for seven months. Id. at ¶¶ 6-92 & 6-93. "The statement of Evidence relied on clearly states the misbehavior report and testimony given by CO R. NICHOLS and inmate Scott's testimony. `Reliability of testing done was main reason for finding of guilt. There was no proof offered regarding human or mechanical error.'" Id. at ¶ 6-83.
On May 26, 2010, Plaintiff wrote to Superintendent Thomas La Valley
Plaintiffs cell location was changed to a "lockdown block," cell D-3-8, where each gallery is sealed off and recreation occurs in small single-man cages for one-hour a day. Id. at ¶ 6-98.
On June 10, 2010, Plaintiff was packed up for a transfer to Upstate Correctional Facility ("UCF"), which is composed entirely of SHU units, to finish out his SHU sentence. Id. at ¶ 6-102. Plaintiff arrived at UCF on June 11, 2010. Id. at ¶ 6-103. Upon arrival, Plaintiffs property was placed in storage, but later confiscated after he had a verbal altercation with an officer. Id. at ¶¶6-105 through 6-107. Also, his legal mail was read, over his objection and mental health interviews were conducted within earshot of other inmates. Id. ¶¶ 6-108 through 6-110. Plaintiff complained about being deprived writing materials so as to appeal his Disciplinary Hearing as well as the deprivation of "adequate soap to wash himself with and to wash his clothing with." Id. at ¶¶ 6-111 & 6-113.
On March 11, 2011, Plaintiff initiated an Article 78 proceeding in State court challenging the May 25, 2010 disciplinary determination. Id. at ¶ 6-116. "On March 30, 2012, the defendant's
Plaintiff alleges that as a result of his May 2010 Disciplinary Hearing he was confined in keeplock and/ or SHU for 109 days. During this confinement, Plaintiff alleges that he was subjected to filthy and unhygienic conditions, including a dirty smelly cell at CCF, and while at UCF was deprived of his property, had his privacy invaded, and was denied adequate soap for washing himself and his clothing. He further expounds upon the isolating and restrictive conditions he endured during his time at UCF. Plaintiff asserts that in connection with his Disciplinary Hearing his due process rights were violated by the Defendants. Specifically, he claims that Defendant Aiken failed to provide adequate assistance by failing to provide him with all the documents he requested prior to his Disciplinary Hearing and also violated his confidentiality when instead of giving documents directly to him, she provided his list of requested documents to the Hearing Officer. Plaintiff claims that Defendant Frederick violated his due process rights during the course of his Disciplinary Hearing when he prejudged his guilt, acted as both assistant and hearing officer, failed to obtain and consider documents requested by Plaintiff, questioned a witness off-the-record and outside of Plaintiffs presence, prevented Plaintiff from fully interrogating certain witnesses as well as refused to call certain witnesses on Plaintiffs behalf, failed to properly record the entire Hearing, and restarted the Hearing without providing adequate notice. Plaintiff further contends that Defendant Nichols testified falsely and that Defendant Facteau improperly authorized Defendant Frederick to restart Plaintiffs Hearing. Lastly, Plaintiff contends that Defendant Prack improperly affirmed Defendant Frederick's disciplinary determination.
The Due Process Clause of the Fourteenth Amendment protects against restraints or conditions of confinement that "exceed[ ] the sentence in . . . an unexpected manner[.]" Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). To state a due process claim under § 1983, 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 Dept of Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989)). Inmates' liberty interests are derived from two sources: (1) the Due Process Clause of the Fourteenth Amendment; and (2) state statute or regulations. Id. With regard to liberty interests arising directly under the Due Process Clause, the Supreme Court has "narrowly circumscribed its scope to protect no more than the `most basic liberty interests in prisoners[,]' Arce v. Walker, 139 F.3d at 333 (quoting Hewitt v. Helms, 459 U.S. 460, 467, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983)), and limited to freedom from restraint that "exceed[ ] the sentence in . . . an unexpected manner[,]" Sandin v. Conner, 515 U.S. 472, 478, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995).
Factors relevant to an analysis of what constitutes an atypical and significant hardship include "(1) the effect of the confinement on the length of prison incarceration, (2) the extent to which the conditions of segregation differ from other routine prison conditions, and (3) the duration of the disciplinary segregation compared to discretionary confinement." Spaight v. Cinchon, 1998 WL 167297, at *5 (N.D.N.Y. Apr.3, 1998) (citing Wright v. Coughlin, 132 F.3d 133, 136 (2d Cir.1998)); see also Palmer v. Richards, 364 F.3d 60, 64 (2d Cir.2004) (stating that in assessing what constitutes an atypical and significant hardship, "[b]oth the conditions [of confinement] and their duration must be considered, since especially harsh conditions endured for a brief interval and somewhat harsh conditions endured for a prolonged interval might both be atypical" (citation omitted)). Though the length of the confinement is one guiding factor in a Sandin analysis, the Second Circuit has cautioned that "there is no bright-line rule regarding the length or type of sanction" that meets the Sandin standard. Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir.1999) (citations omitted). Nevertheless, the Court of Appeals has stated that "[w]here the plaintiff was confined for an intermediate duration between 101 and 305 days development of a detailed record' of the conditions of the confinement relative to ordinary prison conditions is required." Palmer v. Richards, 364 F.3d at 64-65 (quoting Colon v. Howard, 215, F.3d 227, 232 (2d Cir.2000)); see also Hanrahan v. Doling, 331 F.3d 93, 97-98 (2d Cir.2003) ("[W]here the actual period of disciplinary confinement is insignificant or the restrictions imposed relatively minor, such confinement may not implicate a constitutionally protected liberty interest."); Edmonson v. Coughlin, 1996 WL 622626, at *4-5 (W.D.N.Y. Oct.4, 1996) (citing cases for the proposition that courts within the Second Circuit tend to rule, as a matter of law, that "disciplinary keeplock or SHU confinement to 60 days or less in New York prisons is not an atypical or significant hardship in relation to the ordinary incidents of prison life"); Sims v. Artuz, 230 F.3d 14, 23 (2d Cir.2000) (noting that segregative sentences of 125-288 days are "relatively long" and therefore necessitate "specific articulation of . . . factual findings before the district court could properly term the confinement atypical or insignificant"). Accordingly, the court must "make a fact-intensive inquiry" that would examine the actual conditions of confinement within SHU. Palmer v. Richards, 364 F.3d at 65 (citations omitted); see also Wright v. Coughlin, 132 F.3d 133, 137 (2d Cir.1998); Brooks v. DiFasi, 112 F.3d 46, 49 (2d Cir.1997). If the conditions of confinement are undisputed, a court may decide the Sandin issue as a matter of law. Palmer v. Richards, 364 F.3d at 65. If, however, normal conditions of SHU exist, but the period of confinement is longer than the intermediate duration, then it would constitute a significant departure from ordinary prison life requiring the protection of procedural due process under Sandin. Id.
As noted above, Plaintiff alleges that as a result of his Disciplinary Hearing he was confined in keeplock/SHU for approximately 109 days, during which time he was subjected to filthy and unhygienic conditions and was deprived of adequate soap and other property. In light of the Second Circuit's requirement that we make detailed factual findings of the conditions endured by Plaintiff, and in light of the record before us, we find that for purposes of the pending Motion, Plaintiff sufficiently alleges that he had a protected liberty interest in remaining free from the atypical and significant hardships he endured during his segregated disciplinary confinement. See Samms v. Fischer, 2013 WL 5310215, at *7 (N.D.N.Y. Sept.20, 2013) (noting that is possible that 60 days in an unsanitary cell in SHU could . . . constitute an atypical and significant hardship in relation to the ordinary incidents of prison life sufficient to convey on a prisoner a protected liberty interest under the due process clause") (citations omitted); see also Palmer v. Richards, 364 F.3d at 65-66 (surveying cases in support of the proposition that "[i]n the absence of a detailed factual record, we have affirmed dismissal of due process claims only in cases where the period of time spent SHU was exceedingly short less than the 30 days that the Sandin plaintiff spent in SHU and there was no indication that the plaintiff endured unusual SHU conditions.") (citations omitted); Gonzalez—Cifuentes v. Torres, 2007 WL499620, at *3 (N.D.N.Y. Feb. 13, 2007) (finding that for the purposes of a motion to dismiss, plaintiffs allegation that he spent ninety days in keeplock was sufficient to require the court to engage in detailed fact finding before dismissing his claim). Accepting the Complaint as true, Plaintiff has adequately pled a liberty interest, however, we reach no conclusion as to whether or not these claims will be sufficient to withstand a properly filed motion for summary judgment after the development of a more detailed factual record.
Plaintiff alleges that Defendant Aiken provided constitutionally inadequate pre-hearing assistance because, inter alia, (1) she violated his duty to maintain inmate-employee-assistant confidentiality when she provided Defendant Frederick with a copy of the list of documents he had requested, and (2) she failed to provide Plaintiff with all of the documents he requested before the Hearing. See Compl. at ¶¶ 6-11 through 6-18, 6-21 through 6-24, 6-27 through 6-29, 7-2, & 7-4.
Plaintiff's claim that Defendant Aiken violated his purported right to inmate-employee-assistant confidentiality is completely meritless. While Plaintiff may have been entitled to prehearing assistance, he is not entitled to any sort of confidentiality by virtue of that arrangement. Accord Loving v. Selsky, 2009 WL 87452 at *2 (W.D.N.Y.2009) (citing Silva v. Casey, 992 F.2d 20, 22 (2d. Cir.1993), for the proposition that the duty to provide pre-hearing assistance "falls far short of the right to counsel that the Sixth Amendment guarantees to criminal defendants.'"); see also Jackson v. Johnson, 30 F.Supp.2d 613, 619 (S.D.N.Y.1998) ("An assistant's role is to act as `merely a surrogate for the inmate, not a legal adviser or advocate.").
Plaintiff also contends that Defendant Aiken provided constitutionally deficient assistance to him when she failed to provide him with all the requested documents. The Court acknowledges that Plaintiff had a right to receive some assistance prior to his Hearing, particularly in light of the fact that he was confined to keeplock status before the Hearing. Eng v. Coughlin, 858 F.2d 889, 897 (2d Cir.1988) ("Prison authorities have a constitutional obligation to provide assistance to an inmate in marshaling evidence and presenting a defense when he is faced with disciplinary charges."). Indeed, this duty is of particular importance when, as here, the prisoner is in segregative confinement prior to the disciplinary hearing. Id. ("When the inmate is disabled, either by being confined full-time to SHU or transferred from the prison in which the incidents occurred, the duty of assistance is greater because the inmate's ability to help himself is reduced."); Loving v. Selsky, 2009 WL 87452, at *1 ("In particular, an inmate must be provided some assistance when circumstances hamper the inmate's ability to prepare a defense, such as when the inmate is confined to SHU prior to the hearing."); see also Hernandez v. Selsky, 572 F.Supp.2d 446, 453 (S.D.N.Y.2008) ("The obligation to provide assistance is greater as the inmates' ability to prepare a defense is reduced."); Louis v. Ricks, 2002 WL 31051633, *10 (S.D.N.Y. Sept.13, 2002) (holding that inmates in keeplock confinement are entitled to pre-hearing assistance).
The doctrine of qualified immunity shields public officials from suit for conduct undertaken in the course of their duties if it "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Eng v. Coughlin, 858 F.2d 889, 895 (2d Cir.1988). Qualified immunity provides government officials "immunity from suit, rather than a mere defense to liability." Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). Whether an official protected by qualified immunity may be held liable for an alleged unlawful action turns on the objective legal reasonableness of the action assessed in light of the legal rules that were clearly established at the time the action was taken. Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Lewis v. Cowan, 165 F.3d 154, 166 (2d Cir.1999).
Qualified immunity is an affirmative defense that must be pled by the official claiming it. Satchel v. Dilworth, 745 F.2d 781, 784 (2d Cir.1984) (citing Harlow v. Fitzgerald, 457 U.S. at 815). The only pleading filed in the present case thus far is the Complaint. Defendants have not raised this affirmative defense in a responsive pleading, as set forth in Federal Rule of Civil Procedure 8(c), but rather in their Memorandum of Law in support of the Motion to Dismiss. Dkt. No. 15-1. Generally, "the defense of qualified immunity cannot support the grant of a . . . 12(b) (6) motion for failure to state a claim upon which relief can be granted." Green v. Maraio, 722 F.2d 1013, 1018 (2d Cir.1983); see also McKenna v. Wright, 386 F.3d 432, 435 (2d Cir.2004) (quoting Green). An exception to this general rule exists where the complaint itself sets up, on its face, the qualified immunity defense; in such an occasion, dismissal for failure to state a claim would be appropriate. Roniger v. McCall, 22 F.Supp.2d 156, 162 (S.D.N.Y.1998) (citing Green v. Maraio, 722 F.2d at 1019); see also McKenna v. Wright, 386 F.3d at 435.
The Court is unable to find any Supreme Court or Second Circuit precedents clearly establishing that Defendant Aiken either owed a duty of confidentiality to Plaintiff or was required to provide Plaintiff with every document he requested. While attorney-client communications are protected by a privilege of confidentiality, it is clear that Plaintiff was not entitled to assistance from an attorney in order to help prepare a defense to the charges pending against him and that Defendant Aiken was not acting in such capacity. Silva v. Casey, 992 F.2d at 22 ("The assistant is not obliged to go beyond the specific instructions of the inmate because if he did so he would then be acting as counsel in a prison disciplinary proceeding, assistance to which a prisoner is not entitled."). Furthermore, the applicable State regulations that establish a New York State inmate's right to employee assistance do not extend a cloak of confidentiality to any discussion between the assistant and inmate, nor do the applicable rules place an obligation on the assistant to procure every item requested by an inmate. See, e.g., N.Y. COMP.CODES R. & REGS. tit. 7, § 251-4.2.
Plaintiff alleges, inter alia,
Plaintiff alleges that during the course of his Disciplinary Hearing and Re-hearing, Defendant Frederick violated his due process rights in a variety of ways. Specifically, Plaintiff alleges, inter cilia,
As noted above, pursuant to Wolff Plaintiff is entitled to minimum due process protections including (1) advanced written notice of the charges against them at least twenty-four hours prior to the hearing; (2) the opportunity to appear at the hearing, to call witnesses, and to present rebuttal evidence; and (3) written statement as to the evidence relied upon and the reasons for the disciplinary action.
"Notice" should be something more than a mere formality. Benitez v. Wolff 985 F.2d 662, 665 (2d Cir.1993). "The effect of the notice should be to compel `the charging officer to 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." Taylor v. Rodriguez, 238 F.3d at 192-93 (quoting McKinnon v. Patterson, 568 F.2d 930, 940 n. 11 (2d Cir.1977)) (alteration in original).
Plaintiff's claim that Defendant Frederick failed to give him adequate notice of the Rehearing falls short of stating a due process claim. In liberally construing Plaintiffs Complaint, it appears that once the decision was made to restart the Hearing, Plaintiff believed he was entitled to have the entire process begin anew, including the notion that he be provided with notice of the charges against him twenty-four hours in advance of the hearing. To be clear, Plaintiff does not accuse the Defendants of failing to give proper notice of the charges against him prior to the commencement of the initial Hearing. Instead, he imposes an extra notice requirement on the Defendants at the point in the Hearing when Defendant Frederick determined that he needed to start the Hearing anew. Based upon the allegations in the Complaint, it is clear that Plaintiff received a copy of the Misbehavior Report at 8:30 a.m. on May 8, 2010, and that his Disciplinary Hearing initially began on May 13, 2010. Compl. at ¶¶ 6-7 & 6-19. Thus, it is clear that Plaintiff received constitutionally adequate notice well in advance of the twenty-four hour minimum. See Sira v. Morton, 380 F.3d 57, 70 (2d Cir.2004) (citing, inter alia, Wolff v. McDonnell, 418 U.S. at 564, for the proposition that "[d]ue process requires that prison officials give an accused inmate written notice of the charges against him twenty-four hours prior to conducting a disciplinary hearing"). Plaintiff does not challenge the sufficiency of that notice, and, indeed, his specific attempts to gather evidence and mount a defense belie any notion that the content of the initial notice failed to adequately apprise him of the charges against him and the factual basis for such charges. This Court finds no basis for Plaintiffs claim that upon restarting the Hearing, Defendant Frederick was constitutionally compelled to provide identical notice of which Plaintiff already received. Accordingly, we find that Plaintiff was provided with proper notice and has failed to state a due process violation.
Plaintiff asserts that Defendant Frederick prejudged his guilt and conducted the Hearing in a biased fashion. While an inmate is not entitled to a hearing officer with the same level of impartiality required by judges, he is entitled to a hearing untainted by arbitrary or predetermined findings of guilt. Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir.1989). Nonetheless, a hearing officer's limited impartiality requirements are satisfied where the record contains "some evidence" to support the officer's findings. Superintendent v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985). "Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached." Id. at 455-56 (citations omitted). That being said, only "`reliable' evidence can constitute `some evidence.'" Sira v. Morton, 380 F.3d at 76 (citing Luna v. Pico, 356 F.3d 481, 488 (2d. Cir.2004)).
Plaintiff alleges that Defendant Frederick violated his due process rights when he failed to record the entire Hearing improperly restarted the Hearing. Neither of these allegations rise to the level of a due process protection.
First, Defendant Frederick's failure to record the entire Hearing did not deprive Plaintiff of any minimum requirements of due process. See Ramsey v. Goord, 661 F.Supp.2d 370, 393 (W.D.N.Y.2009) (failure to record a portion of Plaintiffs disciplinary hearing did not rise to a due process violation). Indeed, "the only process due an inmate is that minimal process guaranteed by the Constitution as outlined in Wolff." Ramsey v. Goord, 661 F.Supp.2d 370, 393 (W.D.N.Y.2009) (quoting Shakur v. Selsky, 391 F.3d 106, 119 (2d Cir.2004)). "Significantly, Wolff did not include electronic recording of a disciplinary hearing among the due process requirements." Id.; see also Holcomb v. Lykens, 337 F.3d 217, 224 (2d Cir.2003) (cited in Ramsey for the proposition that New York State's regulation requiring that a disciplinary hearing be recorded does not impute a federal constitutional protection).
Second, Plaintiffs argument that Defendant Frederick lacked authority/jurisdiction to restart his Hearing purportedly in violation of state regulations, does not allege a cognizable due process violation. See A'Gard v. Perez, 919 F.Supp.2d 394, 403 (S.D.N.Y.2013) (citing Russell v. Coughlin, 910 F.2d 75, 78 n. 1 (2d Cir.1990), for the proposition that "[a]ny alleged violations of prison directives or regulations do not give rise to a federal claim, because federal constitutional standards rather than state law define the requirements of procedural due process.") (internal alterations and quotation marks omitted); Johnson v. Goord, 487 F.Supp.2d 377, 400 (S.D.N.Y.2007) (quoting Rivera v. Wohlrab, 232 F.Supp.2d 117, 123 (S.D.N.Y.2002) for the proposition that "a § 1983 claim brought in federal court is not the appropriate forum to urge violations of prison regulations or state law").
Plaintiff alleges that Defendant Facteau lacked authority to order or advise Defendant Frederick to restart the Hearing. Compl. at ¶¶ 16-61 through 6-64, 6-95, 6-96, 7-22, & 7-23. Plaintiff also claims that Defendant Facteau was aware of, yet failed to remedy, the fact that Plaintiff did not receive twenty-four hours notice of the disciplinary rehearing. Id. at ¶¶ 7-10 & 7-11. Plaintiffs theories of liability against Defendant Facteau are diametrically opposed. On the one hand, he appears to question Defendant Facteau's authority to authorize a rehearing, while at the same time, he criticizes Defendant Facteau's failure to remedy purported due process violations committed by Defendant Frederick. Based upon the factual allegations of the Complaint, it appears, to some extent, that Plaintiff seeks to hold Defendant Facteau liable based upon a theory of supervisory liability.
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 cannotbe 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. Ighal, 556 U.S. 662, 676, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
The Second Circuit has stated that a supervisory defendant may have been personally involved in a constitutional deprivation within the meaning of § 1983 if he: (1) directly participated in the alleged infraction; (2) after learning of the violation, failed to remedy the wrong; (3) created a policy or custom under which unconstitutional practices occurred or allowed such policy or custom to continue; or (4) was grossly negligent in managing subordinates who caused the unlawful condition or event. Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986) (citations omitted). Pointedly, "mere `linkage in the prison chain of command' is insufficient to implicate a state commissioner of corrections or a prison superintendent in a § 1983 claim." Richardson v. Goord, 347 F.3d 431, 435 (2d Cir.2003) (quoting Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir.1985)); see also Wright v. Smith, 21 F.3d at 501 (defendant may not be held liable simply because he holds a high position of authority).
As noted above, no due process violation occurred when Defendant Frederick restarted Plaintiffs Hearing, thus, Plaintiff cannot maintain an action against Defendant Facteau based on the fact that he authorized or advised Defendant Frederick to re-record the Disciplinary Hearing or for his failure to remedy that alleged violation. See Wesolowski v. Harvey, 784 F.Supp.2d 231, 234 (W.D.N.Y.2011) (citing Campo v. Keane, 913 F.Supp. 814, 826 (S.D.N.Y.1996), for the proposition that "plaintiff cannot state a claim [against a supervisory official] for personal involvement in a constitutional violation, where no underlying constitutional violation occurred").
Aside from a slew of wholly conclusory allegations in his wherefore clause, Plaintiffs sole allegation against Defendant Prack is that he affirmed Defendant Frederick's disciplinary determination. Compl. at ¶ 6-114. Courts within the Second Circuit are split over whether such an allegation is sufficient to establish personal liability for supervisory officials. We subscribe to the affirmance-plus standard, which holds that the mere rubber-stamping of a disciplinary determination is insufficient to plausibly allege personal involvement. See Brown v. Brun, 2010 WL 5072125, at *2 (W.D.N.Y. Dec.7, 2010) (noting that courts within the Second Circuit are split with regard to whether the act of affirming a disciplinary hearing is sufficient to allege personal involvement of a supervisory official, and concluding that the distinction appears to hinge upon whether the official proactively participated in reviewing the administrative appeal or merely rubber-stamped the results). Here, Plaintiff fails to allege a single fact from which it could plausibly be inferred that Defendant Prack did anything other than rubber-stamp his disciplinary determination. See generally Compl. Accordingly, we recommend that Defendants' Motion be
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.
PHILLIP JEAN-LAURENT, P.O. Box 200016, South Ozone Park, New York 11420, Plaintiff pro se.
HON. ERIC T. SCHNEIDERMAN, Attorney General for the State of New York, The Capitol, OF COUNSEL: JOHN F. MOORE, ESQ., Assistant Attorney General, Albany, New York 12224, Counsel for Defendants.
Thérèse Wiley Dancks, United States Magistrate Judge
The claims on which Defendants seek summary judgment are: (1) First Amendment claims for retaliation against Defendants Lane, Beard, Pawlin, and Moehs; (2) Eighth Amendment medical indifference claims against Defendants Moehs, McAuliffe, Barkley, Hulihan, and Lindquist; (3) Eighth Amendment cruel and unusual punishment claims against Defendants Pawlin and Barkley, in his supervisory capacity; and (4) a Fourteenth Amendment violation of due process claim against Defendants McAuliffe and Bezio. (Dkt. 88-1 at ¶ 11.) Plaintiff has opposed the motion, and Defendants have filed a reply. (Dkt. Nos. 99 and 103.)
According to Plaintiff, shortly after he was transferred to Cape Vincent on January 23, 2008, Defendant Lane informed him that he was not allowed to store two draft bags of his belongings under his bunk bed and would have to purchase storage bins for his excess belongings from the commissary. (Dkt. No. 88-1 at 36.) Plaintiff claims Lane gave him permission to store the bags under his bunk until his funds arrived from his prior facility in about two weeks. Id. Three consecutive times in January and February 2008 when Plaintiffs funds arrived they were encumbered and unavailable for the purchase of storage bins. Id. at 36. While Plaintiff claims Lane continued to allow him to keep the draft bags under his bunk, Lane denies ever having granted Plaintiff permission to keep the bags under his bunk and claims he was without authority to do so. (Dkt. Nos. 88-1 at 37; 88-6 at ¶ 8.)
On February 19, 2008, Lane issued a Tier I inmate misbehavior report to Plaintiff stating that while doing the daily dormitory inspection he had noted that Plaintiff had two draft bags under his bunk. (Dkt. No. 99-3 at 6.) The misbehavior report charged Plaintiff with improperly keeping the draft bags under his bunk from January 24, 2008, through February 18, 2008. Id. at ¶ 2. Plaintiff testified at his deposition that Lane issued the Tier I misbehavior report the day he learned that Plaintiff was pursuing an excessive force lawsuit against New York City corrections officers in the Southern District of New York. (Dkt. No. 88-1 at 37, 43; see also Dkt. No. 99-1 at 4.) Lane's Declaration omits any reference to the February 19, 2008, misbehavior report (see Dkt. No. 88-6), but he does deny seeing any correspondence regarding Plaintiff's excessive force litigation prior to issuing a second misbehavior report, also involving the draft bags, on February 25, 2008. Id. at ¶ 11.
Plaintiff was found guilty at the Tier I hearing held before Defendant Pawlin the following Saturday. (Dkt. No. 46 at ¶ 24.) The evening of the hearing, Plaintiff determined that DOCCS Directive 4913 and Facility Operations Management ("FOM") § 786 authorized the storage of the draft bags under his bunk. Id. at ¶ 25. Plaintiff claims that he informed Lane about the draft bag policy in DOCCS Directive and FOM on the morning of February 25, 2008, and Lane expressed his disregard for the policy. (Dkt. No. 46 at ¶ 25.) Plaintiff then began writing Grievance No. CV8241-08, dated February 25, 2008, regarding the draft bag issue and the Tier I misbehavior report, in which he noted that he had no money to purchase storage bins and claimed that DOCCS Directive 4913 and FOM 786 allowed him to store excess property in draft bags under his bed. Id.; Dkt. Nos. 88-1 at 44; 99-3 at 30. In the Grievance, Plaintiff wrote that Lane had persisted in maintaining that Plaintiff had to get rid of the draft bags and purchase property bags from the commissary despite being informed of the Directive and FOM section, leaving Plaintiff at risk for further misbehavior reports. (Dkt. No. 99-3 at 31.) The grievance was filed by the Grievance Clerk on February 28, 2008. Id. at 30.
Lane denies that he had any communications with Beard concerning the subject matter of the February 25, 2008, misbehavior report before issuing the report. Id. at ¶ 9. According to Lane, at approximately 11:00am on February 25, 2008, he found that Plaintiff had two draft bags under his bunk and gave him a direct order to place his property in his locker and bring the draft bags to the Correction Officers' desk. Id. at ¶ 5. When Plaintiff still had the draft bags under his bunk at 12:25 pm, Lane repeated the order. Id. Lane claims that Plaintiff became very upset and began yelling that he was allowed to have two draft bags under his bed per the Directive and FOM. Id. Lane gave Plaintiff a direct order to be quiet and go to his cube at which point Lane emptied all of the property out of the draft bags onto the floor of his cube and brought the draft bags to the Corrections Officers' desk. Id.
In Lane's February 25, 2008, misbehavior report, arising out of the draft bag incident of that date, Plaintiff was charged with violating 106.10 Direct Order, 104.13 Disturbance, 118.21 Fire Hazard, and 118.30 Untidy Person or Cell. (Dkt. 88-7 at 5.) Beard claims that he became aware of the February 25, 2008, misbehavior report on that date and escorted Plaintiff to the Special Housing Unit ("SHU") at 1:32pm that afternoon on the authorization of Lieutenant Alexander. Id. at ¶ 7; 46 at ¶ 26; 88-1 at 41, 88-7 at ¶ 6. At the hearing on the misbehavior report, Plaintiff was found not guilty of 104.13 Creating a Disturbance, 118.21 Flammable Materials, and 106.10 Refusing a Direct Order. (Dkt. No. 88-7 at 9.) Plaintiff was found guilty of 118.30 Untidy Cell or Person. Id.
Beard denies having any knowledge of Grievance No. CV-8241-08 before he was asked to investigate the grievance on February 28, 2008. (Dkt. No. 88-7 at ¶ 7.) Based upon his investigation, Beard determined that Plaintiff's personal items had to be stored in his locker and/or approved personal property storage bags available at the commissary. Id.
On July 29, 2008, Plaintiff was issued a misbehavior report for fighting with another inmate in the facility law library. (Dkt. Nos. 88-1 at 45; 88-5 at 9-10.) According to the misbehavior report, Plaintiff complained to the inmate about the manner in which he had handed Plaintiff a book and punched the inmate in the face, then rushed around the counter swinging at the inmate. (Dkt. No. 88-5 at 9.) Plaintiff is stated to have then struggled with the inmate and shoved him backwards at which point a corrections officer intervened. Id. During the course of the altercation, a microfiche machine was knocked over and broken. Id. at 10. Plaintiff was charged with violating 110.13 Fighting, 106.10 Direct Order, 104.11 Violent Conduct, 116.10 Destruction of State Property, 109.10 Out of Place, and 104.13 Disturbance. Id.
Plaintiff was allowed to choose an assistant in defending against the charges and met with the assistant on July 30, 2008. Id. at 13-14, 33. The assistant met with four witnesses whom Plaintiff wanted to testify at his Tier III hearing. Id. at 14. Two agreed to testify and two refused. Id. at 14, 21-22. Plaintiff also requested that his assistant obtain, among other things, the misbehavior report issued to the other inmate involved in the altercation.
While McAuliffe did inform Plaintiff that the other inmate also had a Tier III misbehavior report, he would not disclose information regarding the charges against the other inmate or whether the other inmate would have to share in restitution for the microfiche machine. Id. at 43-45. When McAuliffe asked Plaintiff if his concern was with not wanting to be held responsible for the entire cost of the microfiche machine when they were both fighting, Plaintiff responded "right." Id. at 45. Following the discussion regarding the other inmate, Plaintiff reaffirmed his desire to plead guilty to all charges. Id. at 46. McAuliffe advised Plaintiff of his right to an appeal. Id. at 49-50.
Following Plaintiff's guilty plea, McAuliffe found him guilty on all charges except 109.10 Out of Place, and McAuliffe imposed a penalty of six months in SHU, six months loss of recreation, packages, commissary, phone, and special events, and three months recommended loss of good time. Id. at 25. Plaintiff appealed McAuliffe's determination to Defendant Bezio. (Dkt. No. 88-5 at 27-29.) Plaintiff argued in his August 11, 2008, appeal that denial of documentary evidence, presumably the other inmate's the misbehavior report requested by him at the hearing, had rendered his guilty pleas involuntary. Id. at 27. In addition, Plaintiff argued that denial of the misbehavior report deprived him of the opportunity to present evidence in mitigation of the penalties imposed. Id. Plaintiff asked that the penalties be modified and the SHU time and recommended loss of good time be reduced. Id.
On August 13, 2008, Plaintiff wrote a supplement to his appeal after finding out that the other inmate involved in the altercation had been released from SHU fifteen days after the fight. Id. at 28-29. Plaintiff claimed bias and impartiality on McAuliffe's part in the sentence imposed on Plaintiff. Id. at 28. Plaintiff also claimed that McAuliffe had misinformed him at the hearing by explicitly telling him that when two people fight they are penalized the same. Id. According to Plaintiff he would not have plead guilty but for the blatant and deliberate misrepresentation by McAuliffe. Id. at 29.
Bezio issued a determination on October 1, 2008, affirming the Superintendent's Hearing held before McAuliffe. Id. at 30. In response to interrogatories from Plaintiff, Bezio indicated that a review of Plaintiff's Tier III hearing records regarding the hearing held on August 1, 2008, had been conducted and confirmed that Plaintiff's August 13, 2008, letter had been considered on the appeal. (Dkt. No. 88-1 at ¶ 21.) Bezio declined to respond to an interrogatory requesting information as to whether the other inmate involved in the altercation had been punished on the grounds that it would constitute an unwarranted invasion of personal privacy and could impair security of the facility and safety of the inmates and corrections staff. Id. at ¶ 23.
A February 4, 2008, note in Plaintiff's Ambulatory Health Record Progress Notes ("Progress Notes") shows that Plaintiff complained of long term chronic back pain. (Dkt. No. 89 at 8.) X-rays of Plaintiff's lumbar spine, thoracic spine, and a frontal view of chest and abdomen were ordered and taken on February 14, 2008. Id.; Dkt. No. 88-4 at ¶ 7. A report on the x-rays with respect to the lumbar and thoracic spine revealed that "the vertebra are well mineralized and properly aligned, moderate degenerative changes are seen." (Dkt. No. 89 at 11.) According to Defendant Dr. Moehs, based on the x-ray, there was no evidence of significant back pathology. (Dkt. No. 88-4 at ¶ 7.)
A March 3, 2008, note reveals that Plaintiff complained of having lower back pain since the age of twelve and noted "x-rays arthritis and scoliosis." (Dkt. No. 89 at 17.) The Progress Notes indicate that Plaintiff was found "OK to work." Id. Plaintiff was given a bottom bunk pass on March 3, 2008. Id. at 16. A March 28, 2008, Progress Note reports that Plaintiff wanted to get off the Utility Gang work detail to which he was assigned because his back was still killing him and it hurt to straighten up, and that he requested pain medication (he was already taking Naprosyn). Id. The Note indicates that Plaintiff ambulated with a steady gate and moved his arms well, that no distress was noted, and that he "bends easily." Id. The Note appears to state that the nurse could not change his work program, denied his request to take the day off, and referred him back to the doctor. Id.
A March 31, 2008, Progress Note reveals that Plaintiff again complained that he was not fit for Utility Gang work because of his scoliosis and back pain. Id. at 18. The Note indicates that Plaintiff was cleared for work per Dr. Rosner, and that based on Plaintiff's x-rays, there was no limitation on specific kinds of work. Id. Upon examination, it was noted that Plaintiff was almost able to touch his toes, reached his hands above his head easily, twisted his trunk, and could squat, stand, and sit without difficulty. Id. Plaintiff was scheduled to see Dr. Rosner on April 7, 2008, but did not keep the appointment. Id. at 19.
On April 11, 2008, Plaintiff complained of shoulder pain. Id. at 20. He was taken to SHU that evening, and his Progress Notes reveal that he made no relevant medical complaints during SHU rounds through April 23, 2008. Id. at 20-24. On April 25, 2008, Plaintiff requested a note from the nurse excusing him from carrying his bags on a move from SHU to his housing unit, and the request was denied. Id. at 26. Thereafter, on April 30, 2008, Plaintiff wrote to Dr. Lester Wright, DOCCS Chief Medical Officer, describing his long time chronic back problem that caused him excruciating pain, and complaining: (1) that his work assignment on the Utility Gang put considerable strain on his back, chest, and shoulder; (2) that he had been forced to carry his bags in moving from housing units without a push cart or the help of a fellow prisoner, and that the nurse he saw when he felt pain carrying the bags refused to excuse him from lifting his bags; and (3) he was receiving inadequate medical care at Cape Vincent. (Dkt. No. 88-1 at 16-17.)
Dr. Rosner agreed to order an MRI, but his request was denied at DOCCS Central Office because Plaintiff did not meet the criteria. Id. at 27, 37-38. Dr. Rosner's request for a sternal CT scan was initially denied but later authorized, and while degenerative changes were observed on the June 6, 2008, CT scan, osteomyelitis was found unlikely. Id. at 35, 43. An x-ray of Plaintiff's clavicle was negative. Id. at 36. After the MRI was denied, on May 28, 2008, Plaintiff agreed to go back to physical therapy, and on June 12, 2008, was found by the physical therapist to have decreased lumbar extension but excellent flexion and rotation, and posture consistent with mild scoliosis. Id. at 38, 44. The physical therapist believed Plaintiff should benefit from a TENS unit and recommended the trial of a unit for three physical therapy visits. Id. at 44-45. On June 26, 2008, the physical therapist noted that Plaintiff had reported the TENS unit provided some relief. Id. at 48. The July 10, 2008, Physical Therapist Consultant Report revealed that Plaintiff had a bad day and had gained little relief from the TENS unit. Id. at 49. The Report from Plaintiff's final visit on July 15, 2008, indicated that the TENS unit had helped some so far, and the physical therapist suggested a TENS unit be purchased for Plaintiff's use. Id.
On July 25, 2008, Plaintiff saw Defendant Dr. Moehs for the first time. (Dkt. Nos. 88-4 at ¶ 22; 89 at 51.) Dr. Moehs was the Medical Director at Cape Vincent at the time. (Dkt. No. 88-4 at ¶ 1.) Plaintiff told Dr. Moehs that he had suffered from back pain since childhood and nothing he had taken at home had helped. (Dkt. Nos. 88-4 at ¶ 22; 89 at 51.) Dr. Moehs diagnosed Plaintiff with basic arthritis and told Plaintiff he would have to learn to live with it. Id. The Progress Note on the visit reports that after Dr. Moehs made that comment, Plaintiff got up and "quickly with normal stride walked out." (Dkt. No. 89 at 51.) Dr. Moehs declined to approve the TENS unit recommended by the physical therapist. (Dkt. No. 88-1 at 51.) According to Dr. Moehs, in his professional medical judgment, Plaintiff was not in need of any additional medical care at the time, including a TENS machine. (Dkt. No. 88-4 at ¶ 27.)
Plaintiff's Progress Notes show that he did not receive any relevant medical treatment at Cape Vincent between July 25, 2008, and his transfer to Mid-State on August 26, 2008. (Dkt. No. 89 at 52-57.)
Plaintiff's Dental Treatment Record indicates that he had his teeth cleaned by a dental hygienist on February 12, 2008, and a consult with the dentist was requested. (Dkt. No. 89-2 at 8.) Plaintiff saw Cape Vincent dentist Dr. James L. Marks on February 28, 2008. (Dkt. No. 88-9 at ¶ 4.) Dr. Mark's treatment plan identified the following treatment as indicated for Plaintiff: (1) "OS (4)," which according to Dr. Marks means oral surgery probably after x-rays and fillings; "X-Ray (2)", meaning x-rays would be performed first; and "OPER (3)," which indicates fillings would be needed. Id. X-rays were to be taken on the next appointment. Id.
On July 7, 2008, Plaintiff underwent a surgical extraction of his lower right wisdom tooth. (Dkt. Nos. 88-9 at ¶ 8; 89-2 at 8.) Plaintiff had a post-surgical follow up on July 14, 2008, and was not seen by dental again prior to his transfer to Mid-State on August 26, 2008. (Dkt. No. 89 at 8.)
In his amended complaint, Plaintiff claims that Defendant Pawlin informed housing unit officers that Plaintiff was on his target list and encouraged them to harass him and issue him infractions because Plaintiff "adamantly complained that the work detail assigned required him to perform certain work that aggravated his existing medical conditions." (Dkt. No. 46 at ¶ 36.) At his deposition, Plaintiff testified that Pawlin began harassing him after finding out about Plaintiff's Southern District lawsuit against corrections officers. (Dkt. No. 88-1 at 87, 114-15.)
Plaintiff claims that Pawlin knew about his bad back because he sat on the Grievance and Program Committees where Plaintiff had complained of his medical condition. Id. at 90, 93. According to Plaintiff, Pawlin always gave him the most strenuous work like shoveling snow and lawn work. Id. at 92. Plaintiff's work assignment records at Cape Vincent reveal that on February 11, 2008, he was assigned to the Utility Gang, and on March 18, 2008, was moved to Dorm Porter before being reprogrammed back to Utility Gang on April 2, 2008. (Dkt. No. 88-3 at ¶ 13.) On May 9, 2008, Plaintiff was moved from Utility Gang to lighter duty such as Painting, Dorm Porter, and Sanitation. Id.
Pawlin claims it is not part of his duties to assign work to inmates or make the determination as to what work program an inmate is assigned that work assignments are done by the Program Committee. (Dkt. No. 88-3 at ¶ 12.) Plaintiff, however, claims that Pawlin was on the Program Committee, and that when Plaintiff told Pawlin at Program Committee hearings that he could not do the job to which he was assigned because of his back, Pawlin told him there were no other jobs. (Dkt. No. 88-1 at 94.)
Plaintiff also claims that Pawlin caused him to be subjected to unusual patterns of movement from housing units and instructed housing unit officers not to allow Plaintiff to use available push-carts (also referred to as "draft carts") or to allow other prisoners to assist him in the moves. Id. at ¶ 35. DOCCS records reveal that Plaintiff's first move occurred on February 25, 2008, when he was moved from a top bunk in Dorm C-1, Cube 48 to a bottom bunk in Cube 42, a few cubes away in the same Dorm. (Dkt. No. 88-3 at ¶ 6.) The same day, Plaintiff was moved to SHU as a result of the misbehavior report filed by Lane. Id. at ¶ 7; Dkt. No. 88-7 at ¶ 7.
When Plaintiff was released from SHU on March 3, 2008, he was moved to Dorm D-1 and four days later was moved to a bottom bunk a few cubes away in Dorm-D. Id. On March 13, 2008, Plaintiff was moved from Dorm D-1 to Dorm F-2, a two or three minute walk away. Id. at ¶ 8. According to Pawlin, he does not know the reason for that move. Id. Plaintiff was moved from Dorm F-2 to Dorm G-1, a ten to twenty second walk, on April 3, 2008. Id.
Plaintiff claims that each time he moved, he had to carry two bags of state issued property, a bag of food, and a number of bags of legal papers weighing at least eighty pounds each. (Dkt. No. 88-1 at 99-100.) Plaintiff moved one bag at a time. Id. at 101. Plaintiff contends that prisoners were generally allowed to use push-carts to transport their things from one housing unit to another, but that Pawlin had told corrections officers not to allow Plaintiff to use them and not to allow any inmates to assist him. Id. at 102-03, 105-06. Pawlin, however, claims that inmates are not permitted to use push-carts to move personal belongings, and that inmates are expected to carry their own property to new housing units. (Dkt. No. 88-3 at ¶ 10.) Pawlin also claims that other inmates are not allowed to assist in moving property unless the inmate being moved has a documented medical condition that prohibits him from carrying his own property, in which case a porter would be assigned to assist the inmate. Id. On May 16, 2008, Pawlin issued a memorandum which he describes as memorializing the policy that inmates were to carry their own property to their new housing unit and were not allowed assistance from other inmates absent a medical condition. Id.; see also Dkt. No. 88-3 at 11.
At his deposition, Plaintiff testified that on March 3, 2008, the first time he was released from SHU, Pawlin told the corrections officers to make him carry his own bags to the housing unit and told another individual, who was helping Plaintiff, to put the bag he was carrying down. (Dkt. No. 88-1 at 110.) Plaintiff was forced to walk from the SHU to his housing unit through snow and slush up to his ankles without taking shortcuts. Id. at 111, 117-18.
Plaintiff also testified concerning an instance on April 25, 2008, in which Pawlin required him to carry his property from SHU to his dorm. Plaintiff was coming out of SHU and his belongings were already in push-carts. (Dkt. No. 88-1 at 106.) When Pawlin came into the SHU, he told the corrections officer not to allow Plaintiff to use pushcarts. Id. Plaintiff lifted a bag, and his back cracked. Id. at 107. He went to the infirmary and, according to Plaintiff, the nurse ridiculed him when he told her he was injured and needed to use a push-cart and denied his request. Id. Plaintiff's April 25, 2008, Progress Note reports that Plaintiff went to medical and requested a note stating that he had pain and did not want to carry his bags from SHU. The nurse noted no apparent distress and that when Plaintiff left, he threw his bag over his shoulder and walked out with no difficultly. (Dkt. No. 89-4 at 26.)
In addition to Grievance No. 8241-08 (Dkt. No. 99-3 at 30) discussed above, while housed at Cape Vincent, Plaintiff filed: (1) Grievance No. 8285-08, dated April 10, 2008, complaining that he should not have been assigned to the Utility Gang given his chronic back problem (Dkt. No. 89-3 at 8); (2) Grievance No. 8335-08, dated June 12, 2008, complaining of inadequate dental care, id. at 19; and (3) Grievance No. 8406-08, dated July 31, 2008, complaining of inadequate medical treatment by Dr. Moehs in denying the physical therapist's recommendation that a TENS unit be purchased for Plaintiff. Id. at 32.
In Grievance No. 8335-08, Plaintiff claimed that he had been waiting over three months to have a wisdom tooth extracted, and it still had not been removed. (Dkt. No. 89-3 at 19.) The IGRC responded that as of June 18, 2008, Plaintiff was currently on the list to be appointed for dental treatment per Dr. Marks. Id. at 20-21. The July 9, 2008, finding on appeal by the Assistant Superintendent at Cape Vincent noted that a follow-up with dental revealed Plaintiff had an appointment on July 7, 2008, and directed Plaintiff to address any further concerns on the matter to dental. Id. at 17. CORC upheld the determination of the Superintendent on appeal finding that it had not been presented with sufficient evidence to substantiate any malfeasance by staff. Id. at 13. CORC noted that Plaintiff had dental appointments on February 24, 2008, April 28, 2008, July 2, 2008, July 7, 2008 (wisdom tooth extraction), and follow up July 14, 2008. Id. CORC further noted that Plaintiff had been a no show for an April 11, 2008, appointment and had an outside medical trip on June 6, 2008, missing a scheduled dental appointment as a result. Id. at 13.
In Grievance No. 8406-08, Plaintiff complained regarding Dr. Moehs' denial of a TENS unit that had been recommended by Plaintiff's physical therapist and requested that either Dr. Rosner be reinstated as his health care provider and he be provided with a TENS unit, or he be granted compensatory damages for his suffering. Id. at 32. The IGRC responded to the grievance in the following manner: "Per Dr. Moehs[,] [d]ue to lack of symptoms, and overall movement, and development of inmate behavior, providing a tens unit is considered inappropriate." Id. at 34. On appeal, Superintendent Barkley noted that Dr. Moehs' had indicated a tens unit was not medically necessary "due to [Plaintiff's] fluid movement, normal gait and based on x-rays which revealed [Plaintiff's] condition [was] considered mild." Id. at 31. In addition, the Superintendent noted that when Plaintiff had previously used the TENS unit during physical therapy sessions, the effect was limited. Id. CORC unanimously denied Plaintiff's grievance for lack of substantial evidence of staff malfeasance; because the Facility Health Services Director, Dr. Moehs, has sole responsibility for providing medical care to inmates and did not find a TENS unit to be medically indicated; inmates are not entitled to see the physician of their choice; and monetary damages are not available through the grievance system. Id. at 24.
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; 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.
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). A plaintiff's verified complaint is to be treated as an affidavit.
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." "To defeat summary judgment, . . . nonmoving parties "may not rely on conclusory allegations or unsubstantiated speculation."" Jeffreys, 426 F.3d at 554 (citation and internal quotation marks omitted). "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). "[T]o satisfy Rule 56(e), affidavits must be based upon `concrete particulars,' not conclusory allegations." "Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997) (citation omitted)." "Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar Coll, 196 F.3d 435, 452 (2d Cir. 1999).
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)
A number of courts have held that relief under Rule 56(d) is generally unavailable when summary judgment motions are made after the close of discovery. See, Jean-Laurent v. Bowman, No. 12 CV 2954 (KAM)(LB), 2014 WL 4662221, at *13 (E.D.N.Y. July 7, 2014) ("The parties had ample time and opportunity to conduct discovery in this matter and relief under 56(d) is not available when summary judgment motions are made after the close of discovery.") (internal punctuation, quotation marks, and citations omitted); Capitol Records, Inc. v. MP3tunes, LLC, No. 07 Civ. 9931 (WHP), 2013 WL 1987225, at *8 (S.D.N.Y. May 14, 2013) (quoting Espada v. Schneuder, 522 F.Supp.2d 544, 549 (S.D.N.Y. 2007) (relief "under Rule 56(d) is not available when summary judgment motions are made after the close of discovery")).
This action was commenced more than five years ago on February 17, 2011. (Dkt. No. 1.) June 29, 2013, was set as the original discovery cut-off date by the Court on March 4, 2013. (Dkt. No. 34.) Following initial review of Plaintiff's amended complaint on October 10, 2014 (Dkt. No. 54), the cut-off date for discovery was reset by the Court to January 9, 2015, with dispositive motions due on March 16, 2015. (Dkt. No. 57.) On January 8, 2015, the cut-off date was reset by the Court to February 13, 2015. (Dkt. No. 59.) On January 12, 2015, Plaintiff moved for a further extension of the cut-off date for discovery to March 2, 2015 (Dkt. No. 60), and the Court granted the motion on January 13, 2015. (Dkt. No. 61.) The Court further extended the discovery cut-off date to June 1, 2015, in a Text Order dated March 19, 2015. On October 15, 2015, the Court granted in part a motion to compel discovery filed by Plaintiff and ordered that, with the exception of the Court ordered service of interrogatory responses by Defendants Lindquist and Hulihan, discovery was closed. (Dkt. No. 79.)
Defendants did not move for summary judgment until after the close of discovery (Dkt. No. 88), and the Court finds that Plaintiff had ample time and opportunity to conduct discovery in this case prior to the close of discovery some two and a half years after the Court set the initial discovery cut-off for June 29, 2013. Even if Plaintiff were found to have been denied adequate time or opportunity to conduct discovery, or discovery had not closed before the summary judgment motion was filed, the Court would recommend denial of the motion on the grounds that Plaintiff's Declaration fails to satisfy all of the requirements set forth in Hudson River, 891 F.2d at 422. More specifically, Plaintiff's Declaration does not describe the efforts made by him to obtain the documents or categories of documents he claims to need to oppose the motion or why he was unsuccessful in those efforts. In light of the foregoing, the Court recommends that Plaintiff's Rule 56(d) application be denied.
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). There are, however, decisions by the Second Circuit in which courts have concluded that temporal proximity between protected activity and allegedly false disciplinary charges may be enough to withstand summary judgment where combined with evidence that the author of the charges knew of the protected conduct, as well as evidence of a prior record of good behavior, or that the charges were dismissed or successfully appealed. See Washington v. Donahue, 146 F.Supp.3d 503, 506-07 (2015) (collecting Second Circuit cases).
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 facts; conclusory statement 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.").
Plaintiff's amended complaint, construed liberally, alleges retaliation claims against Defendant Lane with regard to both the February 19 and 25, 2008, misbehavior reports. (Dkt. No. 46 at ¶¶ 23-26.) Plaintiff claims that Lane, who previously had been allowing him to keep two draft bags under his bunk, wrote the February 19, 2008, Tier I misbehavior report charging him with improperly keeping the bags under his bunk from January 24 to February 18, 2008, in violation of 118.30 Untidy Cell or Person, the same day Plaintiff had shown him a paper regarding an action for excessive force Plaintiff had pending against New York City corrections officers. (Dkt. Nos. 46 at ¶ 23; 88-1 at 37, 43; 99-3 at 6.) Plaintiff claims that Lane wrote the February 25, 2008, misbehavior report after observing Plaintiff writing Grievance No. 8241-08 regarding the draft bag storage issue and the Tier I misbehavior report that morning. (Dkt. Nos. 46 at ¶ 26; 88-1 at 42-44.)
The filing of lawsuits is protected First Amendment conduct for purposes of a retaliation claim. See Colon, 58 F.3d at 872 ("Prisoners, like non-prisoners have a constitutional right of access to the courts and to petition the government for redress of grievances."). Although the filing of a false misbehavior report can qualify as an adverse action for purposes of establishing the second element of a retaliation claim, Pidlypchak, 389 F.3d at 384, the Court finds, based upon the evidence in the record, that the February 19, 2008, misbehavior report was not false. See Woodward v. AU, No. 9:13-cv-1304 (LEK/RFT), 2015 WL 5711899, at *11 (N.D.N.Y. Sept. 29, 2015) (denying Plaintiff summary judgment where the court, while recognizing that the filing of a false misbehavior report may constitute an adverse action, found that the record was devoid of evidence that the misbehavior report was false); see also Lowrance v. Achtyl, 20 F.3d 529, 535 (2d Cir. 1994) ("When it is undisputed that an inmate has in fact committed prohibited conduct, no retaliatory discipline claim can be sustained").
The misbehavior report charged Plaintiff with keeping two draft bags under his bunk from January 24 through February 18, 2008, in violation of prison rules. (Dkt. No. 99-3 at 6.) Plaintiff does not deny that the bags were under his bed; he claims only that he was allowed to have them there. Id. at 5. In affirming the finding of guilt at Plaintiff's disciplinary hearing, Superintendent Barkley determined that Plaintiff was mistaken; that the only allowable storage containers were those sold at the commissary and Plaintiff's property must be stored only in those containers or in his locker. Id.; see also Dkt. Nos. 88-7 at ¶ 7; 88-10 at 2, 5.
In addition, even were the Court to assume that the misbehavior report did constitute adverse action, the evidence supports summary judgment in Lane's favor on the issue of causation. The Court finds that there is a question of fact as to whether Lane saw a document regarding Plaintiff's excessive force lawsuit against the New York City corrections officers prior to issuing the February 19, 2008, misbehavior report. Plaintiff claims that he showed Lane a document that disclosed the lawsuit, and Lane issued the misbehavior report the same day. (Dkt. No. 46 at ¶ 23.) Lane denies seeing correspondence concerning any litigation involving Plaintiff prior to the time he issued the second misbehavior report on February 25, 2008. (Dkt. No. 88-6 at ¶ 11.)
As a general matter, it is difficult to establish that a defendant had cause to retaliate against a plaintiff for protected conduct against another party. See Wright v. Goord, 554 F.3d 255, 274 (2d Cir. 2009) (dismissing retaliation claim against a corrections officer when the only alleged basis for retaliation was a complaint about an incident involving another corrections officer); Guillory v. Ellis, No. 9:11-CV-600 (MAD/ATB), 2014 WL 4365274, at 18 at *49 (N.D.N.Y. Aug. 28, 2014) ("it is difficult to establish one defendant's retaliation for complaints against another defendant"). Plaintiff's speculation that Lane retaliated against him because of his lawsuit against New York City corrections, without any supporting evidence, is insufficient to defeat summary judgment. See McPherson v. N.Y. City Dep't of Educ., 457 F.3d 211, 215 (2d Cir. 2006) (speculation alone is insufficient to defeat a summary judgment motion).
In addition, in his appeal from the guilty finding on the February 19, 2008, misbehavior report, Plaintiff stated that "[t]his ticket was given to me because I had no money to purchase property bags from commissary because I owe encumbrance money I've recently received was taken so I could not afford to buy storage bags. This ticket was written and the disposition rendered because of my inability to purchase property bags, not because my cube did not conform with the cleanliness and orderliness policy." (Dkt. No. 99-3 at 5.) There is no mention in Plaintiff's appeal of the misbehavior report having been filed for retaliatory reasons. Id.
Based upon the foregoing, the Court recommends that Lane be granted summary judgment on Plaintiff's retaliation claim regarding the February 19, 2008, misbehavior report.
Inasmuch as the filing of grievances is protected First Amendment conduct for purposes of a retaliation claim, see Colon, 58 F.3d at 872, the Court finds that Plaintiff has satisfied the first element of a retaliation claim. In addition, because the filing of a false misbehavior report can qualify as an adverse action, Pidlypchak, 389 F.3d at 384, the Court will assume for purposes of this motion that Plaintiff has also satisfied the second element.
Lane argues that there is no causal connection between Plaintiff's Grievance No. 8241-08 regarding the draft bag storage issue and the Tier I misbehavior report and the February 25, 2008, misbehavior report and taking Plaintiff to SHU. (Dkt. No. 88-14 at 6-9.) Lane claims that he did not know about the grievance at the time he issued the misbehavior report. (Dkt. No. 88-6 at ¶ 10.) Lane also argues that the grievance cannot serve as the causal connection for his retaliation claim because Plaintiff acknowledged at his deposition that he wrote the grievance after receiving the misbehavior report on the draft bags. (Dkt. No. 88-14 at 8.)
Plaintiff contends that he wrote the grievance before Lane issued the misbehavior report, and that Lane was aware of the grievance before the report was issued and Plaintiff was taken to SHU and issued the report in retaliation for the grievance. (Dkt. Nos. 46 at ¶¶ 25-26; 88-1 at 41-43.) The Court finds some confusion in Plaintiff's deposition testimony regarding the timing of the grievance.
(Dkt. No. 81-1 at 43.) Lane is alleged to have issued the misbehavior report later that day. (Dkt. No. 46 at ¶¶ 5-7.) While the temporal proximity weighs in favor of finding a causal connection, the statement in Plaintiff's appeal as to why the misbehavior report was issued weighs against it. Plaintiff stated in his appeal that "[t]his misbehavior report was written because I could not afford to purchase storage containers from commissary because my funds were take (sic) to pay for encumbrances." (Dkt. No. 88-6 at 11.) The appeal makes no mention of a retaliatory motive on Lane's part. Id.
Even if the Court were to find that a material issue of fact exists on the issue of causation, it would recommend summary judgment in Lane's favor because the record shows that Lane would have taken the adverse action in the absence of protected conduct. See Scott, 344 F.3d at 287-88. The two draft bags that had been the subject of Lane's February 19, 2008, misbehavior report were still in Plaintiff's cube on February 25, 2008, despite the hearing officer's finding of guilt. (Dkt. Nos. 46 at ¶ 24; 88-6 at ¶ 5.) By Plaintiff's own admission, he informed Lane that morning that he was allowed to keep the bags there under DOCCS Directive 4913 and FOM § 786. (Dkt. No. 46 at ¶ 25.)
The evidence establishes that Plaintiff's interpretation of DOCCS Directive 4913 was erroneous and that FOM § 786 had been rescinded in 2003. (Dkt. Nos. 88-7 at 11; 88-10 at 2, 5, 7.) Plaintiff has relied upon Directive 4913 Sections II(A)(1)(c) and III(A) & (B) in support of his claim that he was authorized to store property in two draft bags in his cell. (Dkt. Nos. 88-7 at 11; 99-3 at 5.) Prior to its revision on September 21, 2006, Part II(A) (1)(c) provided that newspapers, magazines, books, and audio tapes "shall be stored in the locker provided and/ or in cardboard boxes which can be neatly stored under the bed to reduce their potential as a fire hazard." (Dkt. No. 88-10 at 5.) The section, as revised and in effect as of February 2008, provides that "[t]hese items shall be stored in the locker provided and/or in authorized storage containers which can be neatly stored under the bed to reduce their potential as a fire hazard." Id. at 2. The revision is disclosed in the Superintendent's Reply to Plaintiff's appeal from the disciplinary determination on the February 25, 2008, misbehavior report. (Dkt. No. 88-7 at 11.)
Directive 4913 Part III(A) & (B) set forth the rules with regard to personal property limits in double cell housing. (Dkt. No. 88-10 at 7.) Section (A) allows an inmate in double cell housing to possess in his cell two draft bags for storage of property beyond that which can be stored in the individual lockers. Id. It also allows both inmates to store property under the bottom bunk. Id. The Supervisor's Reply to Plaintiff's appeal explains that Part III refers to inmates in double cell housing, that Plaintiff was in a cube, and the provision for cells does not apply to cubes. (Dkt. No. 88-7 at 11.)
Therefore, the Court finds that a retaliation claim based upon the February 25, 2008, misbehavior report cannot be sustained and recommends that summary judgment be granted in Lane's favor. See Lowrance, 20 F.3d at 535; Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002) (defendant's burden of establishing that plaintiff would have received the same punishment even absent the retaliatory motive can be met "by demonstrating that there is no dispute that plaintiff committed the most serious, if not all, of the prohibited conduct charged in the misbehavior report.") (citation and internal quotation marks omitted).
Plaintiff has also asserted a retaliation claim against Beard with regard to the February 25, 2008, misbehavior report. Plaintiff's retaliation claim rests entirely on speculation that Lane was speaking on the phone with Beard on February 25, 2008, after discovering that Plaintiff was writing a grievance regarding the draft bags, and that the two somehow colluded in the report. (Dkt. Nos. 46 at ¶ 26; 88-1 at 41-42.) Lane denies having any communications with Beard regarding the subject matter of the February 25, 2008, misbehavior report. (Dkt. No. 88-6 at ¶ 9.) Beard denies any knowledge of Plaintiff's February 25, 2008, grievance until he was asked to investigate it on February 28, 2008. (Dkt. No. 88-7 at ¶ 9.)
Because unsubstantiated speculation is insufficient to avoid summary judgment, see Jeffreys, 426 F.3d at 554, the Court recommends that Beard be granted summary judgment on Plaintiff's retaliation claim.
Plaintiff has asserted Eighth Amendment medical indifference and retaliation claims against Defendant Dr. Moehs, arising out of his denial of the TENS unit the physical therapist had recommended for Plaintiff's use. (Dkt. No. 46 at ¶¶ 45, 53-54, 58.)
The Eighth Amendment protects prison inmates from "cruel and unusual punishment" in the form of "unnecessary and wanton infliction of pain" at the hands of prison officials. Wilson v. Seiter, 501 U.S. 294, 297 (1991); Estelle v. Gamble, 429 U.S. 97, 104 (1976). The constitutional prohibition against cruel and unusual punishment includes the right to be free from conditions of confinement that impose an excessive risk to an inmate's health or safety. Farmer v. Brennan, 511 U.S. 825, 837 (1994); Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). While the Eighth Amendment does not mandate comfortable prisons, neither does it tolerate inhumane treatment of those in confinement. Farmer, 511 U.S. at 832. To satisfy their obligations under the Eighth Amendment, prison officials must "ensure that inmates receive adequate food, shelter, and medical care, and must take reasonable measures to guarantee the safety of inmates." Id.
To establish an Eighth Amendment claim arising out of inadequate medical care, an inmate must make a threshold showing that prison officials were deliberately indifferent to his serious medical needs. Smith v. Carpenter, 316 F.3d 178, 183 (2d Cir. 2003). A serious medical condition is one which presents "a condition of urgency that may result in degeneration or extreme pain." Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (citation and internal quotation marks omitted); see also Harrison v. Barkley, 219 F.3d 132, 136-37 (2d Cir. 2000) ("A serious medical condition exists where the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain." (internal citation and quotation marks omitted)). Relevant factors to consider when determining whether an alleged medical condition is sufficiently serious include, but are not limited to: "(1) the existence of an injury that a reasonable doctor or patient would find important and worthy of treatment; (2) the presence of a medical condition that significantly affects an individual's daily activities; and (3) the existence of chronic and substantial pain." Chance, 143 F.3d at 702-03.
Because the second requirement for an Eighth Amendment violation is subjective, the defendant prison official must act with a sufficiently culpable state of mind. Salahuddin, 467 F.3d at 280. The subjective showing is "deliberate indifference," which is akin to criminal recklessness: that the defendant acted or failed to act "while actually aware of a substantial risk that serious harm will result." Id. It is well-established that "a difference of opinion between a prisoner and prison officials regarding medical treatment does not, as a matter of law, constitute deliberate indifference." Sonds v. St. Barnabas Hosp. Corr. Health Serv., 151 F.Supp.2d 303, 311 (S.D.N.Y. 2001). Furthermore, an "inadvertent failure to provide adequate medical care" does not constitute "deliberate indifference." Estelle, 429 U.S. at 105-06. "A complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim . . . under the Eighth Amendment." Id. at 106. Stated another way, "medical malpractice does not become a constitutional violation merely because the victim is a prisoner." Id.; see also Smith, 316 F.3d at 184 ("Because the Eighth Amendment is not a vehicle for bringing medical malpractice claims, nor a substitute for state tort law, not every lapse in prison medical care will rise to the level of a constitutional violation.").
Depending on the circumstances, back pain may qualify as a serious medical condition. See, e.g., Howard v. City of New York, No. 12 Civ. 4069 (PAE)(JCF), 2012 WL 7050623, at *7 (S.D.N.Y. Dec. 20, 2012) (dismissing claim as insufficiently pled claim of deliberate indifference to serious medical need where plaintiff alleged mild scoliosis), adopted as modified on other grounds, 2013 WL 504164 (S.D.N.Y. Feb. 13, 2013); Cain v. Jackson, No. 05 Civ. 3914 (LAP)(MHD), 2007 WL 2193997 at *1, 6 (S.D.N.Y. July 27, 2007) (plaintiff's degenerative disc disease not sufficiently serious medical condition); Nelson v. Rodas, No. 01 Civ. 7887 (RCC)(AJP), 2002 WL 31075804, at *1, 6 (S.D.N.Y. Sept. 17, 2002) ("severe back pain, especially if lasting an extended period of time, can amount to a `serious medical need' under the Eighth Amendment.").
Even if the Court were to assume solely for purposes of this motion that Plaintiff's mild scoliosis, moderate degenerative changes in his lumbar and thoracic spine, and what he has described as "excruciating pain" (Dkt. Nos. 88-1 at 16; 89 at 11, 17, 89), together constituted a serious medical condition, the evidence establishes that Plaintiff was given adequate medical treatment, and Dr. Moehs did not act with deliberate indifference in denying the physical therapist's recommendation that Plaintiff be provided with a TENS unit. When Dr. Moehs examined Plaintiff on July 25, 2008, he observed that Plaintiff had a normal range of motion and moved well. (Dkt. No. 88-4 at ¶ 22.) Dr. Moehs' observation was in accord with Plaintiff's medical records which reported that on March 31, 2008, Plaintiff was "almost able to touch his toes, reached his hands above his head easily, twisted his trunk, and could squat, stand, and sit without difficulty." (Dkt. No. 89 at 19.) Dr. Moehs was also aware that Plaintiff was doing exercises such as weight lifting, as treatment for his back. (Dkt. No. 88-1 at ¶ 27.)
In a memorandum he prepared in response to Plaintiff's grievance over denial of the TENS unit, Dr. Moehs explained that the physical therapist's notes reported that the TENS unit "helped only somewhat, on one occasion, and little help on the other," and that in physical therapy, Plaintiff "move[d] fluidly with a normal gait," and while "his range of motion was slightly limited in extension [it was] excellent in flexion and lateral movement." (Dkt. No. 89 at 89.) Dr. Moehs concluded in the memorandum that "[g]iven the limited effectiveness in the formal physical therapy sessions, and the lack of symptoms overall, demonstrated by [Plaintiff's] movement and behavior, not providing the tens unit is justified. . . ." Id.
The Court finds that Plaintiff's and Dr. Moehs' disagreement regarding the TENS unit does not create a constitutional claim for medical indifference. See Sonds, 151 F. Supp. 2d at 311. The evidence clearly shows that Dr. Moehs made a reasoned medical decision based upon Plaintiff's medical records, his own observations, and Plaintiff's ongoing treatment with Naprosyn and had no reason to conclude that serious harm would befall Plaintiff were he not given a TENS unit. Salahuddin, 467 F.3d at 280. Therefore, the Court recommends that Dr. Moehs be granted summary judgment on Plaintiff's Eighth Amendment medical indifference claim.
Plaintiff has also asserted a retaliation claim against Dr. Moehs, claiming that Dr. Moehs took over his medical care and denied him a TENS unit because of Plaintiff's April 30, 2008, letter to Dr. Wright complaining he was receiving inadequate medical care at Cape Vincent. (Dkt. Nos. 46 at ¶ 63; 88-1 at 50.) The letter of complaint to Dr. Wright was protected First Amendment activity for purposes of his retaliation claim. See Decayette v. Goord, No. 9:06-CV-783 (TJM/GHL), 2009 WL 1606753, at *9 (N.D.N.Y. June 8, 2009) ("[p]laintiff's right to send a letter of complaint to [a prison official] was a constitutionally protected activity").
The Court finds it questionable, however, whether denying the TENS unit is sufficiently adverse to deter "a similarly situated individual of ordinary firmness" from exercising his constitutional rights. Pidlypchak, 389 F.3d at 381. Assuming solely for purposes of this motion that the denial did constitute an adverse action, there is not one shred of evidence establishing a causative link between the letter to Dr. Wright and Dr. Moehs' actions, let alone proof that it played a "substantial part in" Dr. Moehs' action. See Baskerville, 224 F. Supp. 2d at 732.
Dr. Moehs was not copied on the letter to Dr. Wright. (Dkt. No. 88-1 at 16-17.) Moreover, Dr. Moehs denies seeing Dr. Wright's letter prior to July 25, 2008, when he saw Plaintiff. (Dkt. No. 88-4 at ¶ 30.) Dr. Moehs was copied on a July 29, 2008, letter from DOCCS Regional Health Services Administrator Holly A. Collett regarding the letter to Dr. Wright. (Dkt. No. 88-1 at 19.) However, as Dr. Moehs points out in his Declaration, that letter was not sent until after he saw Plaintiff. (Dkt. No. 88-4 at ¶ 30.)
Unsubstantiated speculation is insufficient to avoid summary judgment. See Jeffreys, 426 F.3d at 554. Therefore, the Court recommends that Dr. Moehs also be granted summary judgment on Plaintiff's retaliation claim.
Plaintiff has also asserted Eighth Amendment medical indifference claims against Defendants McAuliffe, Barkley, Hulihan, and Lindquist.
Plaintiff's claim that McAuliffe violated his Eighth Amendment right to adequate medical care because of his inability to go to scheduled medical and dental appointments while in SHU is based solely on Plaintiff's allegation that "[o]n one occasion when defendant McAuliffe was making rounds in the SHU and plaintiff inquired why he was not taken to the medical facility for his medical and dental appointments; Defendant McAuliffe simply answered `because you're in SHU' and walked away." (Dkt. No. 46 at ¶ 38.) Plaintiff conceded at his deposition that he never made McAuliffe aware of any particulars regarding his medical and dental condition. (Dkt. No. 88-1 at 140.) Furthermore, in his Declaration, McAuliffe, who under HIPAA has no authority to look at Plaintiff's medical records, claims to have no recollection of ever telling Plaintiff he could not receive medical care in SHU.
Based upon the foregoing, it is clear that McAuliffe did not undertake responsibility for Plaintiff's medical and dental care while he was in SHU, and McAuliffe cannot be found to have known of and disregarded an excessive risk to Plaintiff's health or safety, a requirement for the imposition of liability for the violation of an inmate's right to adequate medical care under the Eighth Amendment. Chance, 143 F.3d at 702. Therefore, the Court recommends that McAuliffe be granted summary judgment on the claim.
At his deposition, Plaintiff initially identified his Eighth Amendment medical indifference claims against Barkley as being solely for affirming the denial of, or denying, Plaintiff's grievances without properly reviewing his medical records. (Dkt. No. 88-1 at 141-42.) Later in his testimony, Plaintiff clarified that when he referred to grievances, he meant "all grievances, formal or informal, interfacility correspondence, complaints," id. at 146, thereby raising the possibility that he intended to include Barkley's alleged inaction with regard to Plaintiff's April 30, 2008, letter to Dr. Wright complaining about inadequate medical care at Cape Vincent, on which Barkley was copied, in his claim. (See Dkt. 46 at ¶ 43.) The Court has therefore considered Grievance Nos. 8285-08, dated April 10, 2008, and 8406-08, dated July 31, 2008, as well as the April 30, 2008, letter to Dr. Wright in its analysis of Plaintiff's Eighth Amendment medical indifference claim against Barkley.
In Grievance No. 8406-08, Plaintiff complained about Dr. Moehs' denial of the TENS unit recommended by the physical therapist. Id. at 32. Barkley affirmed the decision of the IGRC denying Plaintiff's request for a TENS unit, finding it medically inappropriate based upon the opinion of Dr. Moehs that the TENS unit was not needed due to, among other things, Plaintiff's "fluid movement, normal gait and based on x-rays which revealed [Plaintiff's] condition [was] considered mild." Id. at 31.
"[P]ersonal 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 and internal quotation marks omitted). Vicarious liability of prison officials is not allowed under § 1983. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). 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.
Merely affirming the denial of an inmate's grievance has been found insufficient to establish the personal involvement required for supervisory liability under § 1983. See Joyner v. Greiner, 195 F.Supp.2d 500, 506 (S.D.N.Y. 2002) ("The fact that [the] Superintendent . . . affirmed the denial of Plaintiff's grievance . . . is [alone] insufficient to establish personal involvement."); Watson v. Wright, No. 08-CV-00960 (A)(M), 2013 WL 1791079, at *8 (W.D.N.Y. March 26, 2013) (collecting cases). Furthermore, a prison official is permitted "to rely upon and be guided by the opinions of medical personnel concerning the proper course of treatment administered to prisoners and cannot be held to have been `personally involved' if he does so." Joyner, 195 F. Supp. 2d at 506; Battle v. Recktenwald, No. 14 CV 2738 (VB), 2016 WL 698145 *10 (S.D.N.Y. Feb. 19, 2016) ("A defendant's denial of an administrative grievance or refusal to override the medical advice of medical personnel are insufficient to establish liability for an Eighth Amendment violation") (citing Graham v. Wright, No. 01 Civ. 9613 NRB, 2003 WL 22126764, at *1 (S.D.N.Y. Sept. 12, 2003) ("It is well established that supervisory officials are generally entitled to delegate medical responsibility to facility medical staff's and are entitled to reply on the opinion of medical staff concerning the proper course of treatment.")).
In light of the foregoing, the Court recommends that Defendant Barkley be granted summary judgment on Plaintiff's Eighth Amendment medical indifference claim.
Plaintiff alleges in his amended complaint that after he was transferred to Mid-State, where Defendant Hulihan is Superintendent, he continued to be denied adequate medical and dental treatment and filed grievances as to both.
Plaintiff testified at his deposition that his Eighth Amendment medical indifference claim against Defendant Lindquist, who was Assistant Director of the Inmate Grievance Program, was based upon Lindquist's affirmance of Plaintiff's Grievance No. 8355-08 concerning Plaintiff's dental treatment, and Grievance No. 8406-08 concerning denial of a TENS unit by Dr. Moehs. (Dkt. No. 46 at ¶¶ 57, 59, 69-70.) Plaintiff complains that Lindquist failed to investigate his medical and dental conditions. (Dkt. No 88-1 at 151.)
The Court finds that Plaintiff's Eighth Amendment medical indifference claims against Hulihan and Lindquist for affirming the denial of Plaintiff's grievances without investigating his medical and dental conditions fail for the same reason as the essentially identical claim against Barkley. Affirmance of the grievances did not constitute personal involvement, and Hulihan and Lindquist were entitled to rely upon the opinions of medical and dental personnel concerning the proper course of treatment administered to Plaintiff. See Graham, 2003 WL 22126764, at *1. Therefore, the Court recommends that Defendants Hulihan and Lindquist be granted summary judgment on Plaintiff's Eighth Amendment medical indifference claims.
Plaintiff has asserted an Eighth Amendment claim for cruel and unusual punishment against Defendants Pawlin and Barkley in his supervisory capacity. (Dkt. No. 46 at ¶¶ 34, 36, 62, 71-72.) Punishment is cruel and unusual if it involves the unnecessary and wanton infliction of pain, or it is incompatible with "the evolving standards of decency that mark the progress of a maturing society." Estelle, 429 U.S. at 97. "To establish an Eighth Amendment violation, an inmate must show: `(1) a deprivation that is objectively, sufficiently serious that he was denied the minimal civilized measure of life's necessities[;] and (2) a sufficiently culpable state of mind on the part of the defendant official, such as deliberate indifference to inmate health or safety.'" Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir. 2012) (quoting Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001)).
Under the objective component of this test, "a prisoner must prove that the conditions of his confinement violate contemporary standards of decency." Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002) (internal quotation marks omitted). Under the subjective component, "[a] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety[.]" Farmer, 511 U.S. at 837.
Plaintiff claims that despite knowing of Plaintiff's painful back condition, Pawlin: (1) assigned him to the Utility Gang and refused to change the assignment; and (2) caused Plaintiff to be subjected to unusual patterns of movement in housing without justification and required him to carry his own bags during the moves, without using a push-cart or being assisted by another inmate, although other inmates were allowed to use push-carts. (Dkt. Nos. 46 at ¶¶ 33-36, 41-42, 71; 88-1 at 87-107.)
Pawlin has stated in his Declaration that it was not part of his duties as Housing Sergeant to make determinations as to work assignments for inmates, and that he was not made aware of any documented medical issue that limited Plaintiff from any work assignment at Cape Vincent. (Dkt. No. 88-3 at ¶ 12.) Pawlin has further stated that inmates are expected to carry their own belongings on housing unit moves, without the use of push-carts or the assistance of other inmates, unless the inmate has a documented medical condition prohibiting him from carrying his property. Id. at ¶ 10. On May 23, 2008, following both incidents in which Plaintiff was required to carry his property from SHU to his housing unit, Pawlin issued a memorandum, which he claims memorialized existing policy, indicating that inmates were required to carry their own property without assistance from other inmates. Id. at 11.
Because Plaintiff was found by medical to be able to work without limitation, and medical declined his requests to be relieved of his Utility Gang assignment and to be excused from carrying his own bags for medical reasons, the Court finds that Pawlin cannot be found to have "know[n] of and disregard[ed] an excessive risk to [Plaintiff's] health or safety," as required to satisfy the subjective component of the test for cruel and unusual punishment. See Farmer, 511 U.S. at 837. Therefore, the Court recommends that Pawlin be granted summary judgment on Plaintiff's Eighth Amendment cruel and unusual punishment claim.
Plaintiff has also asserted a retaliation claim against Pawlin. (Dkt. No. 46 at ¶ 36.) Plaintiff claims that Pawlin retaliated against him by subjecting him to unusual patterns of movement from housing units without assistance despite his back pain; requiring him to carry his own bags without use of a push-cart or inmate assistance on two occasions when he moved from SHU to his housing unit; and informing other housing officers that Plaintiff was on his target list and encouraging them to harass him and issue infractions to him either because of Plaintiff's adamant complaining regarding his work detail assignment or his excessive force lawsuit in the Southern District of New York.
As noted above, the filing of grievances and lawsuits is protected First Amendment conduct for purposes of a retaliation claim. See Colon, 58 F.3d at 872. Plaintiff has identified the complaints regarding his work assignment as having been made to medical and in a grievance. (Dkt. No. 88-1 at 89.) As noted above, sending letters of complaint to prison officials has been found to constitute protected conduct for purposes of retaliation claims. See Decayette, 2009 WL 1606753, at *9.
However, even if Court were to conclude that Plaintiff's complaints to medical, his grievance regarding his assignment to the Utility Gang (Dkt. No. 89-3 at 8), and his Southern District lawsuit satisfy the protected conduct element of a retaliation claim, his retaliation claim against Pawlin would fail because the record establishes that Pawlin's actions were not adverse. The adverse action relied upon by Plaintiff is Pawlin forcing him into an unusual pattern of movements and forcing him to carry his own bags when he was moved, including two moves from SHU to his housing unit, despite knowledge of Plaintiff's painful back condition. (Dkt. No. 46 at ¶¶ 33-36, 40-42). Pawlin has stated in his Declaration that he was not made aware of any documented medical issue that prevented Plaintiff from moving his personal property. (Dkt. No. 88-3 at ¶¶ 11-12.)
The Court's objective assessment of Plaintiff's claim of adverse action in this case, given the determination by medical that Plaintiff was physically able to do work assignments without limitation and the denial by medical of his request to be excused from carrying his belongings due to his back pain, is that requiring Plaintiff to move with some frequency and to carry his personal belongings, including when he moved from SHU, did not, as a matter of law, constitute adverse action for purposes of his retaliation claim against Pawlin.
The Court further finds that Plaintiff has failed to raise an issue of fact on the issue of causation. Pawlin has denied taking action against Plaintiff for preparing grievances and has also denied seeing or being informed of any litigation involving Plaintiff during the time he was at Cape Vincent.
Even if Pawlin had been aware of Plaintiff's letters to medical, grievance, and the Southern District litigation, Plaintiff's claim that Pawlin retaliated against him because of those things is wholly conclusory. See Flaherty, 239 F.3d at 491 (claims of retaliation must be supported by specific facts; conclusory statements are not sufficient). Temporal proximity is not enough to avoid summary judgment in this case. Roseboro, 791 F. Supp. 2d at 370.
Based on the foregoing, the Court recommends that Pawlin be granted summary judgment on Plaintiff's retaliation claim.
In his amended complaint, Plaintiff alleged that he had copied Barkley on Plaintiff's April 30, 2008, letter to Dr. Wright complaining, inter alia, about his work assignment on the Utility Gang, and Barkley had failed to act. (Dkt. No. 46 at ¶ 43.) On initial review of Plaintiff's amended complaint, this Court found that for purposes of the initial screening, Plaintiff had adequately alleged personal involvement by Defendant Barkley with regard to Plaintiff's claim against Pawlin for cruel and unusual punishment for purposes of stating a claim for supervisory liability. (Dkt. No. 50 at 15-16.)
Plaintiff has asserted a Fourteenth Amendment due process claim against Defendants McAuliffe and Bezio with respect to the Tier III disciplinary hearing held before hearing officer McAuliffe and the affirmance of McAuliffe's determination by Bezio. (Dkt. No. 46 at ¶ 75.) To prevail on a claim under § 1983 for denial of due process, a plaintiff must establish both the existence of a protected liberty or property interest, and that he was deprived of that interest without being afforded sufficient process. See Shakur v. Selsky, 391 F.3d 106, 118 (2d Cir. 2004). In this case, Defendants McAuliffe and Bezio make no claim that Plaintiff lacked a liberty interest, instead arguing solely that he was not denied due process in the hearing.
Plaintiff claims that he was denied due process by McAuliffe as a result of: (1) McAuliffe's denial of Plaintiff's request for the misbehavior report issued to the other inmate participant in the altercation leading to the Tier III hearing for use in his defense (Dkt. Nos. 46 at ¶ 47; 88-1 at 45; 88-5 at 14.); (2) McAuliffe's false representation at the hearing that because both Plaintiff and the other inmate were involved in the fight, both would be equally punished, which influenced Plaintiff's decision to plead guilty and denied Plaintiff the right to present a defense, to confront McAuliffe concerning his bias, and to request that he recuse himself (Dkt. Nos. 88-1 at 46-48; 88-5 at 29); and (3) McAuliffe's bias and impartiality in "unfairly and unilaterally penaliz[ing] plaintiff for an altercation he had with another prisoner, sanctioning him to punitive segregation for a period of six (6) months while the other prisoner was not sanctioned at all." (Dkt. No. 46 at ¶ 49.)
The Supreme Court has found that "[p]rison disciplinary hearings are not part of a criminal prosecution and the panoply of rights [do] not apply." Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Under Wolff, the procedural due process protections to which a prison inmate is entitled in disciplinary hearings include: (1) written notice of the charges; (2) the opportunity to appear and be heard at a disciplinary hearing and to present witnesses and evidence subject to legitimate safety and penological concerns; (3) a limited right to assistance in preparing a defense; and (4) a written statement from the hearing officer explaining his or her decision, and the reasons for the actions taken. Id. at 563-67. A prison inmate is also entitled to a fair and impartial hearing officer, Sira v. Morton, 380 F.3d 57, 69 (2d Cir. 2004), and a determination that is supported by "some evidence" in the record. Superintendent v. Hill, 472 U.S. 445 (1985).
The Court also finds that, contrary to Plaintiff's claims, he was given the opportunity to appear and be heard at his disciplinary proceeding and to present evidence, subject to legitimate safety and penological concerns, and instead made the decision of his own volition, to plead guilty to all charges. At the outset of the hearing on August 1, 2008, McAuliffe told Plaintiff to feel free to call witnesses and during the course of the hearing specifically informed Plaintiff that he could call the other inmate involved in the altercation as a witness. (Dkt. No. 88-5 at 34, 42.) Although Plaintiff did not request that corrections officer Wanerka, who had filed the misbehavior report, be called as a witness, McAuliffe let Plaintiff know that he was going to see if she was available to testify when the hearing resumed on Monday to clear up those areas with respect to which Plaintiff had plead not guilty. Id. at 41. It was at that point that Plaintiff informed McAuliffe that he wanted to plead guilty to all of the charges and proceeded to do so, despite being told by McAuliffe that if Plaintiff was not guilty, he did not want him to plead guilty. Id. at 42, 45-46.
Although McAuliffe's refusal to provide Plaintiff with a copy of the other inmate's misbehavior report did deprive Plaintiff of the opportunity to present it as evidence at the hearing, the record evidence establishes that McAuliffe's refusal was based on legitimate safety and penological concerns. The Supreme Court has instructed that "prison administrators should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." Bell v. Wolfish, 441 U.S. 520, 547 (1979). "Such considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters." Pell v. Procunier, 417 U.S. 817, 827 (1974).
In his Declaration, McAuliffe has explained that "records of or information regarding other inmates, including disciplinary records, are confidential and disclosure of such information to other inmates could constitute and (sic) unwarranted invasion of personal privacy and could impair the security of the facility and the safety of correctional staff and inmates." (Dkt. No. 88-5 at ¶ 15.) In objecting to Plaintiff's interrogatory asking for information regarding the disciplinary hearing of the other inmate involved in the altercation including when his disciplinary hearing commenced, the name of the hearing officer, and the outcome, Bezio gave the same explanation as McAuliffe for objecting to the request. (Dkt. No. 88-1 at ¶ 23.) According due deference to the articulated DOCCS practices regarding the confidentiality and non-disclosure of records and documents such as another inmate's misbehavior report, the Court finds that Plaintiff's due process rights were not violated by the denial of the misbehavior report.
Plaintiff claims McAuliffe made false representations regarding the other inmate involved in the altercation, and he was not a fair and impartial hearing officer. As noted above, inmates are entitled to a fair and impartial hearing officer. Sira, 380 F.3d at 69. "The degree of impartiality required of prison officials does not rise to the level of that required of judges generally. It is well recognized that prison disciplinary hearing officers are not held to the same standard of neutrality as adjudicators in other contexts." Allen v. Cuomo, 100 F.3d 253, 259 (2d Cir. 1996). "Administrators serving as adjudicators are presumed to be unbiased.," id., and a prisoner's "own subjective belief that [the hearing officer] was biased . . . is not enough to create a genuine issue of fact." Wright v. Conway, 584 F.Supp.2d 604, 609 (W.D.N.Y. 2008).
Plaintiff claims that McAuliffe falsely represented that he and the other inmate both received Tier III misbehavior reports and because they were both involved in a fight, they would be equally punished, when in fact the other inmate received no punishment.
Plaintiff also claims that McAuliffe was biased and unfairly sentenced him to six months in SHU, six months loss of privileges, and three months recommended loss of good time when the other inmate, who had provoked the altercation, received no punishment. (Dkt. No. 46 at ¶¶ 49-50.) There is no evidence of McAuliffe's involvement, if any, in the disciplinary handling of the altercation with respect to the other inmate. The record does show, however, that Plaintiff admitted that he had hit the other inmate. (Dkt. No. 88-5 at 40.) Moreover, there is evidence in the record that Plaintiff of his own volition elected to plead guilty to all of the charges against him, despite being told by McAuliffe that he could present witnesses, including the other inmate, at the hearing, and that McAuliffe told Plaintiff he did not want him to plead guilty if he was not guilty. Id. at 42. In short, the only evidence of bias on the part of McAuliffe is Plaintiff's own subjective belief which is not enough to avoid summary judgment. Wright, 584 F. Supp. 2d at 609.
Plaintiff claims that Bezio showed bias and violated his right to due process by affirming McAuliffe's determination despite all of the evidence Plaintiff provided on appeal showing that the determination was unfair. Id. at 76. According to Plaintiff, Bezio "just rubber-stamped [McAuliffe's determination] and allowed [Plaintiff] to lose the privileges, good time credit, and all that other stuff, allowed [him] to be punitively confined when what he should have done was overturn, dismissed the disciplinary, vacate it, whatever." (Dkt. No. 89-1 at 78.)
Courts in the Second Circuit are split over whether an allegation that a defendant affirmed a disciplinary proceeding determination is sufficient to establish personal liability for supervisory officials. See Scott v. Frederick, No. 13-CV-605 (TJM), 2015 WL 127864, at * 17 (N.D.N.Y. Jan. 8, 2015). In Scott, the court subscribed to the "affirmance-plus standard, which holds that the mere rubber-stamping of a disciplinary determination is insufficient to plausibly allege personal involvement." Id. (citing Brown v. Brun, No. 10-CV-0397A (MAT), 2010 WL 5072125, at *2 (W.D.N.Y. Dec. 7, 2010)) (noting that courts within the Second Circuit are split with regard whether to the act of affirming a disciplinary hearing is sufficient to allege personal involvement of a supervisory official, and concluding that the distinction appears to hinge upon whether the supervisory official proactively participated in reviewing the appeal or merely rubber-stamped the results).
This Court also subscribes to the "affirmance-plus standard" and concludes that Bezio, in affirming McAuliffe's determination, did not violate Plaintiff's due process rights and recommends that Bezio be granted summary judgment on Plaintiff's Fourteenth Amendment due process claim.
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.
David E. Peebles, U.S. Magistrate Judge
Currently pending before the court are the parties' cross-motions for summary judgment. For the reasons set forth below, I recommend that defendants' motion be granted in part and denied in part, and that plaintiff's motion be denied.
Plaintiff is a prison inmate currently being held in the custody of the DOCCS. See generally
On January 18, 2013, plaintiff was issued a misbehavior report by a corrections sergeant who is not a named defendant, accusing him of accepting compensation in exchange for providing legal services to other inmates and violating a direct order from the law library officer prohibiting him from accepting remuneration for his services.
A Tier III disciplinary hearing was conducted by defendant Eric Gutwein, beginning on January 22, 2013, and concluding on March 21, 2013, to address the charges set forth in the misbehavior report.
Plaintiff appealed defendant Gutwein's determination to defendant Albert Prack who, prior to his retirement on December 31, 2014, was the director of the DOCCS Special Housing/Inmate Disciplinary Program. Dkt.
On or about May 21, 2013, plaintiff commenced a proceeding pursuant to Article 78 of the New York Civil Practice Law and Rules challenging the Tier III determination.
In addition to his claims against defendants Gutwein and Prack, plaintiff alleges that defendant Arthur Dixie, who at the relevant times served as the Deputy Superintendent of Security at Greene and, at some unidentified point in time, as the facility's Acting Superintendent, (1) refused to undertake a review of plaintiff's appeal from the Tier III hearing determination, (2) transferred plaintiff to a different correctional facility, and (3) removed plaintiff from his law library clerk position at Greene all in retaliation for plaintiff complaining to him concerning defendant Gutwein's bias during the Tier III hearing and a dormitory sanction policy in place at Greene.
On April 29, 2016, following the close of discovery, defendants moved for the entry of summary judgment dismissing plaintiff's remaining claims.
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 fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); 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 N. Y., 426 F.3d 549, 553 (2d Cir. 2005). 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; 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 non-moving party. Anderson, 477 U.S. at 255; 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").
In a case such as this, where the parties have filed cross-motions for summary judgment, "a court must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration." Boy Scouts of Am. V. Wyman, 335 F.3d 80, 88 (2d Cir. 2003) (quotation marks omitted).
To establish a procedural due process claim under section 1983, a plaintiff must show that he (1) possessed an actual property or liberty interest, and (2) was deprived of that interest without being afforded sufficient process. Tellier v. Fields, 280 F.3d 69, 79-80 (2d Cir. 2000); Hynes v. Squillace, 143 F.3d 653, 658 (2d Cir. 1998); Bedoya v. Coughlin, 91 F.3d 349, 351-52 (2d Cir. 1996). In this case, defendants contend that plaintiff was not deprived of a cognizable liberty or property interest as a result of defendant Gutwein's determination.
Liberally construed, plaintiff's SAC and his papers submitted in response to defendants' motion identify five alleged deprivations as a result of the Tier III determination, including (1) his SHU confinement, (2) the recommended loss of good time credits, (3) the denial of an area of preference transfer whereby he would be moved to a prison facility closer to his home, (4) the loss of his position as a law library clerk and the corresponding deprivation of wages, and (5) the loss of telephone and commissary privileges.
In Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court determined that, to establish a liberty interest deprivation in the context of a prison disciplinary proceeding resulting in removal of an inmate from the general prison population, a plaintiff must demonstrate that (1) the state actually created a protected liberty interest in being free from segregation, and (2) the segregation would impose an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 483-84; Tellier, 280 F.3d at 79-80; Hynes, 143 F.3d at 658. The prevailing view in this circuit is that, by its regulatory scheme, the State of New York has created a liberty interest in remaining free from disciplinary confinement, thus satisfying the first Sandin factor. See, e.g., LaBounty v. Coombe, No. 95-CV-2617, 2001 WL 1658245, at *6 (S.D.N.Y. Dec. 26, 2001); Alvarez v. Coughlin, No. 94-CV-0985, 2001 WL 118598, at *6 (N.D.N.Y. Feb. 6, 2001) (Kahn, J.).
In cases like this one that involve restrictive confinement of less than 101 days, where the confinement occurs under ordinary conditions found in a typical SHU setting, the disciplinary punishment does not rise to the level of an atypical and significant hardship.
In this instance, there is no evidence in the record suggesting that, while serving his disciplinary sentence, plaintiff was exposed to conditions that vary from the ordinary incidents of SHU confinement. Accordingly, and because the duration of his SHU confinement was less than 101 days, no reasonable factfinder could conclude that this represented a deprivation of plaintiff's protected liberty interests.
In his hearing determination, defendant Gutwein recommended that plaintiff forfeit three months of good time credits.
Plaintiff further contends that, as a result of defendant Gutwein's determination, he was deprived of the opportunity to work as a law library clerk at Greene.
The final deprivation alleged by plaintiff to implicate a cognizable liberty or property interest concerns the loss of his telephone and commissary privileges while in SHU confinement. Such privileges, however, do not constitute protected liberty or property interests. See Johnson v. Enu, No. 08-CV-0158, 2011 WL 3439179, at *12 (N.D.N.Y. July 13, 2011) (Homer, M.J., report and recommendation adopted by 2011 WL 3439524 (N.D.N.Y. Aug. 5, 2011) (Scullin, J.)) ("Moreover, the loss of phone, telepackage, and commissary privileges does not give rise to a protected liberty interest under New York law." (quotation marks omitted)); Pitsley v. R. Ricks, No. 96-CV-0372, 2000 WL 362023, at *4 (N.D.N.Y. Mar. 31, 2000) (Mordue, J.) (recognizing that prison inmates to not enjoy a constitutional right to unlimited telephone use (citing cases)); DeMaio v. Kelly, No. 95-CV-0329, 1996 WL 685729, at *2 (W.D.N.Y. Nov. 22, 1996) ("Loss of certain privileges viz., recreation, special events, telephone and packages does not represent the type of grievous loss which could reasonably be viewed as imposing an atypical and significant hardship on a prison inmate."). Accordingly, no reasonable factfinder could conclude that a three-month deprivation of telephone and commissary privileges rises to a level sufficient to support a procedural due process violation.
In sum, because plaintiff has failed to demonstrate a genuine dispute of material fact with respect to whether he was deprived a cognizable liberty or property interest resulting from defendant Gutwein's disciplinary hearing determination, I recommend that defendants' motion be granted with respect to plaintiff's due process claims asserted against defendant Gutwein.
A prison official engages in unlawful retaliation when he takes adverse action against an inmate, motivated by that inmate's exercise of a constitutional right, including the free speech provisions of the First Amendment. Franco v. Kelly, 854 F.2d 584, 588-90 (2d Cir. 1988). To establish such a claim, a plaintiff must prove that (1) he engaged in protected activity; (2) the defendants took adverse action against him; and (3) there was a causal connection between the protected activity and the adverse action in other words, the protected conduct was a "substantial or motivating factor" and the prison official's decision to take action against the plaintiff. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Dillon v. Morano, 497 F.3d 247, 251 (2d Cir. 2007); Garrett v. Reynolds, No. 99-CV-2065, 2003 WL 22299359, at *4 (N.D.N.Y. Oct. 3, 2003) (Sharpe, M.J.). If the plaintiff succeeds in carrying this burden, defendants may nonetheless avoid liability by showing, by a preponderance of the evidence, that they would have taken the same action against the plaintiff "even in the absence of the protected conduct." Mount Healthy, 429 U.S. at 287. If taken for both proper and improper reasons, defendants' actions may be upheld if the same action would have been taken based solely on the proper reasons. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (citations omitted).
There is record evidence suggesting that plaintiff lodged two complaints that he claims served as the basis for defendant Gutwein's allegedly retaliatory disciplinary hearing determination and sanction. In his SAC, plaintiff alleges that defendant Gutwein retaliated against plaintiff "with the imposition of ninety days SHU confinement and loss of good time credits" after learning that plaintiff wrote "complaints [to Gutwein's] supervisors."
In response to plaintiff's assertions, defendant Gutwein states that he was unaware of any complaints lodged against him at the time of the hearing, and that "[a]t no time during the hearing did [he] offer plaintiff a deal wherein [he] would find [plaintiff] not guilty of the charges in exchange for his silence with regard to the dorm sanction policy."
This finding, however, does not end the inquiry. As was previously noted, once a prima facie case of retaliation is established, a defendant may nonetheless avoid liability by showing, by a preponderance of the evidence, that he would have taken the same action even in the absence of the protected conduct. See, e.g., Mount Healthy, 429 U.S. at 287. In this instance, even assuming a factfinder concludes that there is also record evidence to support a finding that defendant Gutwein rendered his disciplinary hearing determination out of retaliatory animus, there is evidence from the disciplinary hearing record that supports defendant Gutwein's determination finding plaintiff guilty of receiving compensation for providing legal services. More specifically, at the disciplinary hearing, Sergeant Melendez, the officer who authored the misbehavior report, testified that, in addition to finding the letter addressed to plaintiff from another inmate in which the inmate inferred (but did not explicitly state) that he would compensate plaintiff for assisting him with a legal matter in the same way he had in the past,
A plaintiff's retaliation claim will "not survive summary judgment under Mount Healthy if the defendants meet their burden of showing that there is no genuine issue as to the fact that [the plaintiff] would have received the same punishment even if they had not been improperly motivated." Graham, 89 F.3d at 80. Because there is evidence from the disciplinary hearing record that supports defendant Gutwein's determination, and defendant Gutwein stated in his declaration that he would have imposed the same sanction against any inmate that he had found guilty of violating the same prison rule, Dkt. 110-4 at 3, I find that plaintiff's retaliation claim fails because defendant Gutwein would have taken the same action against plaintiff absent the constitutionally protected conduct. See Graham, 89 F.3d at 79 ("[I]f 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."). Accordingly, I recommend that the portion of defendants' motion seeking dismissal of plaintiff's retaliation claim asserted against defendant Gutwein be granted.
Plaintiff's SAC alleges that defendant Dirie took three adverse actions against him in retaliation for complaining about defendant Gutwein and the dormitory sanction policy. In particular, he contends that defendant Dirie (1) refused to review defendant Gutwein's disciplinary determination on appeal, (2) requested that plaintiff be transferred from Greene "for the sole purpose of punishment and to interfere with plaintiff's association in person with his daughter at a facility closer to the New York City area," and (3) ordered that plaintiff be removed from his position as a clerk in the law library.
With respect to plaintiff's first allegation of adverse action, aside from plaintiff's bare allegations, there is no record evidence from which a reasonable factfinder could conclude that defendant Dirie had the authority to conduct a review on appeal of a disciplinary determination. Defendant Dirie flatly denies possessing such authority as Deputy Superintendent of Security,
Next, plaintiff alleges that defendant Dirie ordered or requested that plaintiff be transferred to a different correctional facility "for the purpose of punishment and to interfere with plaintiff's association in person with his daughter at a facility closer to the New York City area."
Lastly, plaintiff alleges that defendant Dirie removed him from his position as a law library clerk at Greene in retaliation for plaintiff complaining about defendant Gutwein and the dormitory sanction policy at Greene.
Even at this late stage in the litigation, the allegations surrounding plaintiff's retaliation cause of action asserted against defendant Prack remain unclear. Based on my review of the allegations in plaintiff's SAC and his filings submitted in connection with the pending motions, it appears plaintiff alleges that, in retaliation for plaintiff writing to defendant Prack about the dormitory sanction policy and defendant Gutwein's bias during the disciplinary hearing, defendant Prack took adverse action against him by (1) affirming defendant Gutwein's disciplinary determination and (2) approving defendant Gutwein's requests for extensions of the disciplinary hearing.
The remaining two causes of action in this matter concern plaintiff's allegations that his due process rights were violated during the course of a disciplinary hearing conducted by defendant Gutwein, the results of which were affirmed by defendant Prack, and that defendants Gutwein, Prack, and Dirie retaliated against him for engaging in constitutionally protected activity. With respect to the procedural due process claim, no reasonable factfinder could conclude that plaintiff was deprived of a cognizable liberty or property interest. Accordingly, his procedural due process claim fails. Turning to the claims of retaliation, while there is sufficient evidence from which a reasonable factfinder could conclude that defendant Dirie retaliated against plaintiff by removing him from his law library clerk position, plaintiff's remaining retaliation claims fail for various reasons, including the absence of any record evidence that plaintiff engaged in protected activity and any evidence from which a reasonable factfinder could conclude there is a causal connection between plaintiff's protected activity and the alleged adverse action. Accordingly, it is hereby respectfully
(1) Plaintiff's due process claims asserted against defendants Gutwein and Prack should be DISMISSED;
(2) Plaintiff's retaliation claim asserted against defendant Gutwein should be DISMISSED;
(3) Plaintiff's retaliation claims asserted against defendant Dirie regarding his failure to undertake a review of the disciplinary hearing determination and his alleged transfer of plaintiff to a different correctional facility should be DISMISSED;
(4) Plaintiff's retaliation claim asserted against defendant Dirie regarding his removal of plaintiff as a law library clerk at Greene should survive defendants' motion and proceed to trial;
(5) Plaintiff's retaliation claims asserted against defendant Prack should be DISMISSED.
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.
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.
Aror Ark O'Diah, Albion, NY, pro se.
Hon. Eric T. Schneiderman, Attorney General for the State of New York, Kristen M. Quaresimo, Esq., Assistant Attorney General, of Counsel, Albany, NY, for Defendant.
CHRISTIAN F. HUMMEL, United States Magistrate Judge.
The specific facts of the case are set forth in the Report-Recommendation dated February 28, 2012, familiarity with which is assumed. See Dkt. No. 73. The Court dismissed all of O'Diah's claims except the following: (1) medical indifference against defendants Cully, Thomas, Guter, and Mawhir; (2) retaliation against defendants Pepin, Richardson, Cully, Hahn, Shaw and Swierk; (3) the filing of false misbehavior reports against defendants Pepin, Richardson, Hahn, Shaw and Swierk; and (4) denial of access to courts against defendants Thomas, Hahn, Shaw, Swierk and Moscicki. Id. at 42-43; Dkt. No. 76 (Decision & Order) at 5-6. The facts discussed will be those relevant to the claims herein remaining. Those claims occurred during O'Diah's incarceration at Cayuga Correctional Facility ("Cayuga"), Livingston Correctional Facility ("Livingston"), and Lakeview Shock Correctional Facility ("Lakeview").
O'Diah was housed at Cayuga until May 9, 2008. Dkt. No. 84-34. O'Diah alleged that on March 7, 2008, defendant Thomas, a correction officer, refused to process his legal mail even though he had received prior authorization from an unnamed sergeant and made subsequent arrangements with an advocate to pick up the legal mail from Cayuga. Am. Compl. ¶ 54. O'Diah alleged that Thomas possessed and withheld his legal mail. Id. ¶ 55. On the same day, Thomas issued a false misbehavior report against him for failing to obey a direct order. Id. ¶ 57. On March 8, O'Diah received the misbehavior report and was sent to keeplock.
The only evidence in the record concerning an Eastern District of New York case is a court notice informing the parties that a scheduled status conference was canceled. Dkt. No. 87-1 at 123. A search in Westlaw revealed that O'Diah filed six actions making claims stemming from the same nucleus of facts, some of which were frivolous, all of which were consolidated into one docket. O'Diah v. City of New York, No. 08-CV-1646 (SJF)(ARL), 2008 WL 1968303, at *1-2 (E.D.N.Y. Apr. 30, 2008).
On March 14, 2008, O'Diah was prescribed neurontin. Guter Decl. ¶ 11; Dkt. No. 84-22 (Dkt. No. 84-21) at 1. On March 19, 2008, defendant Guter, a registered nurse, arrived at O'Diah's cell to administer the neurontin, with which O'Diah was unfamiliar. Am. Compl. ¶ 59; Guter Decl. ¶¶ 1, 12. O'Diah requested the information insert for the drug, which would contain the drug's name, purpose and reported side effects, as well as to see the physician. Am. Compl. ¶ 60; Guter Decl. ¶ 13. O'Diah alleged that when he refused to take the medication, Guter and Thomas, at the direction of Mawhir, forced O'Diah to take the unknown medication. Id. ¶ 61. After taking the medication, O'Diah alleged that he experienced serious intestinal issues including bowel movements, stomach pain, bleeding, and inflammation of his rectum. Id.
Guter affirmed that he told O'Diah he would obtain the requested information from a physician and then O'Diah voluntarily took the medication. Guter Decl. ¶ 16-18. Guter explained that he authored the misbehavior report because after he informed O'Diah of the physician's unavailability, O'Diah became verbally abusive and Guter had to seek Thomas's assistance. Guter Decl. ¶¶ 15, 27; Dkt. No. 84-24 at 6, 9.
On March 22, 2008, non-party Hearing Officer Rocker conducted a disciplinary hearing and determined that O'Diah was guilty of creating a disturbance and interference with an employee and not guilty as to harassment and refusing a direct order. Dkt. No. 84-25 at 34. Rocker sentenced O'Diah to two months of keeplock and loss of packages, commissary, and phones but deferred the sentence for three months. Id.
On March 24 and 28 of 2008, O'Diah refused to take his medication. Guter Decl. ¶¶ 23-24; Dkt. No. 84-23 at 1. On April 9, 2008, O'Diah reported to Guter that he was feeling much better and the medication worked well.
On May 10, 2008, while working at his placement, O'Diah suffered from irregular and elevated blood pressure, headaches, and increased pain as a result of having to clean up the cigarettes. Am. Compl. ¶ 69. On May 19, 2008, O'Diah experienced a severe headache and dizziness, informed an unnamed supervising corrections officer that he was not feeling well, and requested a change in his work placement. Id. ¶ 70. O'Diah was instructed to seek a medical excuse instead. Id. While pursuing that request, O'Diah claims to have been told by someone in the front office that Cully had placed him in that position as a sanction. Id.
On May 20, 2008, O'Diah was given a choice between two work programs, though he did not prefer either position because of his health conditions. Am. Compl. ¶ 72. O'Diah chose one of the placements, and was then told by an unidentified sergeant that he was going to the other per Cully's authorization. Id. The placement resulted in an aggravation of O'Diah's pre-existing medical conditions of severe headaches, dizziness, and depression. Id.
On June 2, 2008, O'Diah was summoned by medical and told the physician that he was unable to work around excessive amounts of cigarette smoke or cigarette butts and ashes and requested a work excuse. Am. Compl. ¶ 74. Cully allegedly told the Livingston physician that supervisors prohibited him from giving work excuses. Id. That same day O'Diah returned to his work assignment where he again began cleaning up the cigarettes, butts, and ashes and began feeling dizzy and developing a headache. Id. ¶ 75. One of the corrections officers ordered O'Diah back to his cell to rest, and further advised him to file a grievance and again request a work program reassignment. Id.
O'Diah alleged that on June 3, 2008, defendant Richardson, a lieutenant, and defendant Pepin, a correctional officer, issued O'Diah a false misbehavior report at Cully's direction. Am. Compl. ¶ 78. However, record evidence shows that Pepin authored the misbehavior report, not Richardson. Dkt. No. 84-49 at 8. On June 5, Richardson conducted the disciplinary hearing. Dkt. No. 84-45 at 2. Non-party and Correction Officer Brockway
Non-party and Nurse Rinders testified that O'Diah's medical records mentioned nothing about O'Diah's intolerance to cigarette smoke or O'Diah having an issue with blood pressure correlating to cigarette smoke. Dkt. No. 84-45 at 14-15. Rinders saw O'Diah on May 29 because O'Diah was experiencing urinary pain and his blood pressure was slightly elevated, which could have been caused by the urinary tract infection.
Richardson determined that O'Diah was guilty of refusing a direct order and making threats. Dkt. No. 84-45 at 17. Richardson invoked O'Diah's deferred sentence and in addition, sentenced O'Diah to thirty-days of keeplock. Id.
O'Diah was housed at Lakeview between June 10, 2008 and October 1, 2008. Dkt. No. 84-34 at 1. O'Diah alleged that on June 11, 2008, defendant Hahn, a correction officer, issued O'Diah a misbehavior report for receiving unauthorized postage stamps from his cell mate. Am. Compl. ¶ 87. This resulted in the dismissal of his Article 78 petition.
O'Diah demanded the return of the funds he applied to be disbursed for his postage prior to his transfer to Lakeview. Am. Compl. ¶ 91. According to O'Diah, Moscicki and Cully denied that there was ever funds available. Id. O'Diah filed a grievance which resulted in a disposition that he was owed a refund. Id. O'Diah alleged that on June 17, 2008, Hahn and defendant Shaw, a lieutenant, issued O'Diah a false misbehavior report for exchanging stamps with his cell mate. Id. ¶ 92. O'Diah alleged he provided Hahn, Shaw, and Swierk his legal mail at various times in June 2008, but Moscicki directed them not to send it out. Id. ¶¶ 89-90.
Hahn explained that he issued O'Diah the misbehavior report because O'Diah received stamps from Inmate Carter, which constituted an unauthorized exchange in violation of DOCCS Rule 113.15.
Defendant Superintendent Moscicki attested that he never contacted or supervised DOCCS employees of other facilities. Moscicki Decl. (Dkt. No. 84-33) ¶ 8. He maintains that he never directed anyone to author any misbehavior report against O'Diah or was involved in the postage stamp matter. Id. ¶¶ 11, 21, 27.
O'Diah contends that on August 8, 2008, defendant Swierk, a senior mail clerk, was instructed by Hahn, Moscicki, and Cully, to falsely charge O'Diah with correspondence violations. Am. Compl. ¶ 94; Swierk Decl. (Dkt. No. 84-5) ¶ 1. The hearing occurred on August 13 and O'Diah was found not guilty of the charges. Id. ¶ 94. Swierk attested that she never spoke with O'Diah and Cully was not the superintendent at Lakeview at the time she authored the misbehavior report. Swierk Decl. ¶¶ 5, 7. On August 5, 2008, Swierk found mail labeled as "legal" but was actually being sent to O'Diah's wife. Id. ¶ 8. Swierk believed that Directives # 4421 and # 4422 prohibited such mailings. Id. ¶ 9; see, e.g ., Directive # 4421 (Dkt. No. 84-7) at 1 ("[Privileged correspondence are benefitted by] allowances of limited free postage and advances of inmate funds for postage."). However, Swierk conceded that the charges were dismissed. Id. ¶ 10.
Defendants Richardson, Pepin, Hahn, Shaw, Swierk, Moscicki, Thomas, and Guter attested that Cully did not order them to issue a false misbehavior report. Richardson Decl. ¶¶ 3-4; Pepin Decl. ¶¶ 3-4; Hahn Decl. ¶¶ 3-4; Shaw Decl. ¶¶ 3-4; Swierk Decl. ¶¶ 6-7; Moscicki Decl. ¶¶ 3-4; Thomas Decl. ¶¶ 5, 7; Guter Decl. ¶¶ 8-9. Defendants Hahn, Shaw, Swierk, Thomas, and Guter attested that Cully was not their supervisor as the defendants did not work at Livingston. Hahn Decl. ¶ 5; Shaw Decl. ¶ 6; Swierk Decl. ¶ 7; Thomas Decl. 8; Guter Decl. ¶ 9. Only Richardson and Pepin worked at the same facility as Cully. Richardson Decl. ¶ 1; Pepin Decl. ¶ 1.
Cully maintains that he did not order Thomas, Hahn, Shaw, Swierk, Moscicki, Richardson, Pepin, or Guter to author false misbehavior reports against O'Diah in retaliation for complaints and grievances filed and did not contact or supervise DOCCS employees of other facilities. Cully Decl. ¶¶ 1, 3-4, 8. Cully never spoke with O'Diah. Id. ¶ 5. Cully attested that DOCCS records indicated that O'Diah was cleared for the work program and nothing in O'Diah's record prevented the assignment of work involving exposure to respiratory agents. Id. ¶ 11; Dkt. No. 84-10 at 1.
O'Diah contends that his Eighth Amendment rights were violated when he was forced to (1) work in a placement which exposed him to cigarettes, aggravating his prior health conditions, and (2) take an unknown medication. O'Diah also contends that his First Amendment rights were violated because (1) false and retaliatory misbehavior reports were issued against him and (2) his access to courts was impeded.
Defendants contend that O'Diah's complaint must be dismissed because (1) O'Diah's allegations did not meet federal pleading requirements, (2) defendants Cully and Moscicki were not personally involved in any of the claims, (3) O'Diah's claims are without merit, and (4) in the alternative, defendants are entitled to a qualified immunity defense. Defs.' Mem. of Law (Dkt. No. 84-1) at 2.
A motion for summary judgment may be granted if there is no genuine issue as to any material fact if supported by affidavits or other suitable evidence and the moving party is entitled to judgment as a matter of law. The moving party has the burden to show the absence of disputed material facts by informing the court of portions of pleadings, depositions, and affidavits which support the motion. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Facts are material if they may affect the outcome of the case as determined by substantive law. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). All ambiguities are resolved and all reasonable inferences are drawn in favor of the non-moving party. Skubel v. Fuoroli, 113 F.3d 330, 334 (2d Cir.1997).
The party opposing the motion must set forth facts showing that there is a genuine issue for trial. The nonmoving party must do more than merely show that there is some doubt or speculation as to the true nature of the facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). It must be apparent that no rational finder of fact could find in favor of the non-moving party for a court to grant a motion for summary judgment. Gallo v. Prudential Residential Servs. 22 F.3d 1219, 1223-24 (2d Cir.1994); Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir.1988).
Id. (citations and footnote omitted); see also Sealed Plaintiff v. Sealed Defendant # 1, 537 F.3d 185, 191-92 (2d Cir.2008) ("On occasions too numerous to count, we have reminded district courts that `when [a] plaintiff proceeds pro se, . . . a court is obliged to construe his pleadings liberally.'" (citations omitted)). However, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion; the requirement is that there be no genuine issue of material fact. Anderson, 477 U.S. at 247-48.
When considering cross-motions for summary judgment, a court "must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration." Hotel Employees & Rest. Employees Union, Local 100 of N. Y. Dep't of Parks & Recreation, 311 F.3d 534, 543 (2d Cir.2002) (quoting Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir.1993)). "[N]either side is barred from asserting that there are issues of fact, sufficient to prevent the entry of judgment, as a matter of law, against it . . . [and] a district court is not required to grant judgment as a matter of law for one side or the other." Heublein, Inc. v. United States, 996 F.2d at 1461.
Defendants argue that the balance of O'Diah's amended complaint should be dismissed because it failed to meet Fed.R.Civ.P. 12(b) (6)'s plausibility pleading standard. Defs.' Mem. of Law at 4-6. Rule 12(b)(6) tests "the formal sufficiency of the plaintiff's statement of a claim for relief without resolving a contest regarding its substantive merits." Global Network Comm'ns, Inc. v. City of New York, 458 F.3d 150, 155 (2d Cir.2006). This rule and standard were already applied to O'Diah's remaining claims. See Dkt. Nos. 66, 73, 76. Because defendants' motion for summary judgment addresses the merit of O'Diah's surviving claims, a second plausibility review of those claims would be futile.
"`[P]ersonal 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) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir.1991)). Thus, supervisory officials may not be held liable merely because they held a position of authority. Id.; Black v. Coughlin, 76 F.3d 72, 74 (2d Cir.1996). However, supervisory personnel may be considered "personally involved" if:
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995) (citing Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986)).
In this case, superintendents Cully and Moscicki must be dismissed from this action because of their lack of personal involvement. O'Diah alleged that Cully acted with deliberate indifference and retaliatory intent by mandating O'Diah to remain in a dangerous work environment after O'Diah complained to medical staff and filed a grievance. O'Diah further alleged that Cully directed subordinates to issue him a false misbehavior report. As for Moscicki, O'Diah alleged that Moscicki intentionally failed to send out his legal mail.
Despite O'Diah's conclusory allegations, record evidence does not show how Cully or Moscicki either directly participated in the alleged constitutional violations or were informed of both the alleged constitutional violations and O'Diah's health problems. O'Diah cannot attempt to establish personal involvement based on the supervisory role of these defendants. Wright, 21 F.3d at 501 (holding that a position in a hierarchical chain of command, without more, is insufficient to support a showing of personal involvement). In particular, other defendants corroborated Cully's position that he had no knowledge of O'Diah's intolerance of cigarette smoke or ever ordered subordinates, those within and outside of his own facility, to issue false misbehavior reports. Hahn also attested that Moscicki was not involved in the postage stamp matter that allegedly prevented O'Diah from sending mail. Therefore, beyond O'Diah's conclusory allegations, there is nothing in the record refuting Cully's and Moscicki's corroborated declarations that they were not directly involved in the claims alleged or had knowledge of the alleged constitutional violations.
Accordingly, defendants' motion on this ground should be granted.
To state an actionable claim for retaliation under the First Amendment, a prisoner must establish by a preponderance of the evidence that: (1) the speech or conduct at issue was protected; (2) the defendant took adverse action against the plaintiff; and (3) there was a causal connection between the protected speech and the adverse action. Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir.2004) (internal quotation marks and citation omitted); Talari v. McCarthy, 714 F.Supp.2d 317, 347 (N .D.N.Y.2010). In the prison context, "adverse action" is objectively defined as conduct "that would deter a similarly situated individual of ordinary firmness from exercising . . . constitutional rights." Davis v. Goord, 320 F.3d 346, 353 (2d Cir.2003). "[A]dverse action taken for both proper and improper reasons may be upheld if the action would have been taken based on the proper reasons alone." Jackson v. Onondaga Cnty., 549 F.Supp.2d 204, 215 (N.D.N.Y.2008).
Burton v. Lynch, 664 F.Supp.2d 349, 367 (S.D.N.Y.2009) (internal quotation marks and citations omitted).
Courts must view retaliation claims with care and skepticism to avoid judicial intrusion into matters of prison administration. Jackson, 549 F.Supp.2d at 214-15. Therefore, conclusory allegations alone are insufficient. Id. at 214 (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983) (explaining that "claim[s] supported by specific and detailed factual allegations . . . ought usually be pursued with full discovery.")). If the plaintiff establishes these elements, the burden shifts to the defendants to show by a preponderance of the evidence that they would have taken the same action against the plaintiff absent his exercising of the protected conduct. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996).
An inmate has a right not to be deprived of a liberty interest without due process. However, a "prison inmate has no constitutionally guaranteed immunity from being falsely or wrongly accused of conduct which may result in the deprivation of a protected liberty interest." Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir.1986)). "There must be more, such as retaliation against the prisoner for exercising a constitutional right." Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir.1997) (citing Franco v. Kelly, 854 F.2d 584, 588-90 (2d Cir.1988)).
O'Diah's work assignment claims against Pepin and Richardson are without merit. O'Diah contends that his First Amendment rights were violated when Pepin and Richardson issued him a false misbehavior report in retaliation for complaining about his work placement in June 2008. Inmates are not entitled to any rights to his job assignment. Gill v. Mooney, 824 F.2d 192, 194 (2d Cir.1987) (citations omitted). However, inmates are entitled to lodge written grievances and verbal complaints, thus, O'Diah has satisfied the first prong of the analysis as both his verbal complaint to supervisor and informal written grievance to Brock constitute protected speech. Brewer v. Kamas, 533 F.Supp.2d 318, 328-29 (W.D.N.Y.2008) (citations omitted) (stating that both written and verbal grievances to a correctional officer constitute protected activity). Furthermore, thirty-days of keeplock may deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights to file such complaints. Gill v. Pidlypchak, 389 F.3d at 382 (noting that the imposition of keeplock constitutes adverse action). However, the causation requirement cannot be established. While Pepin issued the report shortly after O'Diah complained about his job placement, the issuance of the report was motivated by O'Diah's threats and failure to obey orders in violation of facility rules, which indicated that the report was issued for a proper purpose. Dkt. No. 84-49 at 8. Moreover, Richardson did not issue the report but only conducted the disciplinary hearing concerning the misbehavior report. Because O'Diah failed to satisfy the required threeprong test, O'Diah's retaliation claims against Pepin and Richardson should be dismissed.
Lastly, O'Diah's retaliation claim against Swierk is also without merit. O'Diah contends that Swierk issued him a false misbehavior report in retaliation for submitting a grievance about reimbursement. As indicated, filing grievances is a constitutionally protected activity. Further, the issuance of a misbehavior report constituted adverse action. Cusamano v. Sobek, 604 F.Supp.2d 416, 434 (N.D.N.Y.2009). Moreover, Swierk firmly believed that O'Diah's manner of labeling his mail violated Directives #4421 and #4422 and would have issued the report regardless of O'Diah's grievance. As Swierk's intent indicated authoring the report for proper purposes, namely a facility rules violation because O'Diah labeled his mail as "legal" when O'Diah's wife was the intended recipient of the mail. Thus, O'Diah has also failed to satisfy the three-prong test against Swierk.
Accordingly, defendants' motion on this claim should be granted.
"Interference with legal mail implicates a prison inmate's rights to access to the courts and free speech as guaranteed by the First and Fourteenth Amendments to the U.S. Constitution." Davis v. Goord, 320 F.3d 346, 351 (2d Cir.2003). In order to state a claim for denial of access to the courts, including those premised on interference with legal mail, a plaintiff must allege "that a defendant caused `actual injury,' i.e. took or was responsible for actions that `hindered [a plaintiff's] efforts to pursue a legal claim.'" Id. (citing Monsky v. Moraghan, 127 F.3d 243, 247 (2d Cir.1997) (quoting Lewis v. Casey, 518 U.S. 343, 351 (1996)). Such injury must affect "a non-frivolous legal claim [which] had been frustrated or was being impeded due to the actions of prison officials." Warburton v. Underwood, 2 F.Supp.2d 306, 312 (W.D.N.Y.1998) (citations omitted); Shine v. Holman, 548 F.Supp.2d 112, 117-18 (D.Vt.2008) (explaining that actual injury "is not satisfied by just any type of frustrated legal claim because the Constitution guarantees only the tools that inmates need in order to attack their sentences . . . and . . . challenge the conditions of their confinement.") (internal quotation marks and citations omitted).
Moreover, Thomas maintains that he did not tamper with O'Diah's legal mail. Even assuming the contrary, "an isolated incident of mail tampering is usually insufficient to establish a constitutional violation . . . Mather, the inmate must show that prison officials regularly and unjustifiably interfered with the . . . legal mail." Davis, 320 F.3d at 351 (internal quotation marks and citations omitted). Here, there is nothing in the record supporting a regular and unjustifiable practice of censoring inmates' legal mail at Cayuga, where Thomas worked. Thus, even viewing the facts in the light most favorable to O'Diah, O'Diah's access to courts claim against Thomas is without merit and should be denied.
The same holds true for O'Diah's remaining claim. Since the Article 78 petition filed at Cayuga County Court was dismissed for failure to state claim, O'Diah's contentions against Hahn, Shaw, Swierk and Moscicki must also fail as O'Diah did not sustain any actual injury. Davis, 320 F.3d at 351.
Accordingly, defendants' motion on these claims should be granted.
The Eighth Amendment explicitly prohibits the infliction of "cruel and unusual punishment." U.S. CONST. amend. VIII. Eighth Amendment obligations include the duty to protect prisoners from other known harms. Farmer v. Brennan, 511 U.S. 825, 829 (1970); Matthews v. Armitage, 36 F.Supp.2d 121, 124 (N.D.N.Y.1999) (citations omitted). It also includes the provision of medical care. Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994). The test for a § 1983 claim is twofold. First, the prisoner must show that the condition to which he was exposed was sufficiently serious. Farmer, 511 U.S. at 834. Second, the prisoner must show that the prison official demonstrated deliberate indifference by having knowledge of the risk and failing to take measures to avoid the harm. Id.
"`Because society does not expect that prisoners will have unqualified access to healthcare,' a prisoner must first make [a] threshold showing of serious illness or injury" to state a cognizable claim. Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir.2003) (quoting Hudson v. McMillian, 503 U.S. 1, 9 (1992)). Because there is no distinct litmus test, a serious medical condition is determined by factors such as "(1) whether a reasonable doctor or patient would perceive the medical need in question as `important and worthy of comment or treatment,' (2) whether the medical condition significantly affects daily activities, and (3) the existence of chronic and substantial pain." Brock v. Wright, 315 F.3d 158, 162-63 (2d Cir.2003) (citing Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998)). The severity of the denial of care should also be judged within the context of the surrounding facts and circumstances of the case. Smith, 316 F.3d at 185.
To satisfy the objective prong and establish a serious illness or injury resulting from exposure to ETS, "a plaintiff must show that he himself is being exposed to unreasonably high levels of ETS." Warren v. Keane, 196 F.3d 330, 333 (2d Cir.1999) (citing Helling v. McKinney, 509 U.S. 25, 35 (1993)) (internal quotation marks omitted); Gill v. Smith, 283 F.Supp.2d 763, 766 (N.D.N.Y.2003) (citing Helling v. McKinney). Not only must the exposure actually cause the inmate potential harm but "society [must] consider[ ] the risk . . . to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk." Id. (quoting Helling, 509 U.S. at 35-36). Subjectively, a plaintiff must demonstrate that the defendant "knew of and disregarded an excessive risk to inmate health or safety." Colon v. Drew, 335 F. App'x 86, 87-88 (2d Cir.2009) (alterations and citations omitted). Additionally, the court must assess "the prison authorities' current attitudes and conduct," towards the environment, evaluating whether "prison authorities are ignoring the possible dangers posed by exposure to ETS." Helling, 509 U.S. at 36-37.
In this case, O'Diah has failed to establish either prong of an Eighth Amendment claim based on ETS exposure. "[Courts have] granted summary judgment for the defendant because the plaintiff failed to provide any evidence about the level of smoke in the facility, the degree of exposure, or any medical problems associated with exposure to ETS." Gill v. Smith, 283 F.Supp.2d at 767 (citing inter alia, Davidson v. Coughlin, 920 F.Supp. 305, 309 (N.D.N.Y.1996); LaCroix v. Williams, No. 97-CV-790E(F), 2000 WL 1375737 (W.D.N.Y. Sept. 21, 2000) (holding that even though plaintiff was housed in a poorly ventilated twenty-two-bed dormitory with twenty-one smokers, the lack of documentation to support the alleged resulting medical issues was insufficient to craft an Eighth Amendment claim)). Viewing the facts in the light most favorable to the plaintiff, O'Diah contends that he was exposed to ETS on May 9, 2008, May 10, 2008, and June 2, 2008. O'Diah claims that the resulting harm materialized into dizziness, headaches, shoulder and back pain, and elevated blood pressure. However, O'Diah provided no evidence, and the record does not reflect otherwise, to show the level of smoke or degree of exposure around the cans containing cigarette butts, or how O'Diah's medical problems were associated with ETS exposure. In fact, O'Diah's medical records contain no reference to a sensitivity to ETS or to him experiencing the complications articulated above. The only time medical records show any of these symptoms was when O'Diah's blood pressure increased, presumably due to an urinary tract infection. Thus, O'Diah has failed to establish the first prong.
Accordingly, defendants' motion on this ground should be granted.
Mere disagreement over treatment does not amount to a constitutional claim as long as the treatment is adequate. Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir.1998) (citation omitted). A defendant who acted reasonably with regard to an inmate's health risk is not liable under the Eighth Amendment. Salahuddin v. Goord, 467 F.3d 279-80 (2d Cir.2006). Under New York common law, an adult is entitled to refuse medication except in the narrow circumstances of when the adult "presents a danger to himself or other members of society or engages in dangerous or potentially destructive conduct within the institution." Kulak v. City of New York, 88 F.3d 63, 74 (2d Cir.1996).
Here, O'Diah has also failed to establish a medical indifference claim based on forced medication. The medical record shows that after O'Diah's pleas of refusing neurontin, O'Diah eventually and voluntarily took the medication upon Guter's assurance that his requested information would be obtained. Further, O'Diah's refusals to take neurontin were respected, which belies O'Diah's claims of being forced to take medication. Thus, O'Diah's medical record refutes his claims of forced medication. Moreover, Guter and Thomas both attested that they did not physically touch O'Diah during the course of administering the medicine and O'Diah did not oppose this in response. Even though O'Diah disagreed with the proper treatment prescribed, the prescription was reasonable as O'Diah indicated that he felt better after taking it. Furthermore, to the extent there was a delay in treatment, that can only be attributed to O'Diah and his decision to take the medication intermittently over a one-month period. Thus, despite O'Diah's conclusory allegations, the record is devoid of any evidence suggesting that the prescribed medication was inadequate or O'Diah was forced to take any medication. No genuine issue of material fact exists with regard to this claim.
To the extent that O'Diah alleged non-party Mawhir directed Guter and Thomas to force medication on O'Diah, as recognized in the Report-Recommendation dated February 28, 2012, such a claim is meritless. Dkt. No. 73 at 42. As previously discussed, this claim cannot stand as no record evidence shows that O'Diah was forced to take medication. Further, nothing in the record even suggests that Mawhir ordered or directed anyone to force O'Diah to take any medication. Accordingly, any liberally construed claims alleged against Mawhir must, as a matter of law, fail for the aforementioned reasons.
Moreover, where a defendant has not been served with process within 120 days of the filing of the complaint, the complaint must be dismissed without prejudice as to that defendant or the court must order "service be made within a specified time." FED. R. CIV. P. 4(m). If, however, the plaintiff demonstrates good cause for service failures, the Court must also extend the time to serve. Id. Additionally, the Second Circuit has held that "district courts have discretion to grant extensions even in the absence of good cause." Zapata v. City of New York, 502 F.3d 192, 196 (2d Cir.2007). Here, more than 120 days have passed since O'Diah filed his complaint. O'Diah has also failed to provide any reasons constituting good cause for failing to serve or add Mawhir as a defendant.
Accordingly, to the extent the previous Report and Recommendation recognized potential claims against Mawhir, such claims would fail as a matter of law and including Mawhir in the case would be futile.
Defendants claim that even if O'Diah's constitutional claims are substantiated, they are nevertheless entitled to qualified immunity. Qualified immunity generally protects governmental officials from civil liability "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Aiken v. Nixon, 236 F.Supp.2d 211, 229-30 (N.D.N.Y.2002) (McAvoy, J.), gild, 80 F. App'x 146 (2d Cir.2003). However, even if the constitutional privileges "are so clearly defined that a reasonable public official would know that his actions might violate those rights, qualified . . . immunity might still be available . . . if it was objectively reasonable for the public official to believe that his acts did not violate those rights." Kaminsky v. Rosenblum, 929 F.2d 922, 925 (2d Cir.1991); Magnotti v. Kuntz, 918 F.2d 364, 367 (2d Cir.1990) (internal citations omitted)).
A court must first determine whether, if plaintiff's allegations are accepted as true, there would be a constitutional violation. Saucier v. Katz, 533 U.S. 194, 201 (2001). Only if there is a constitutional violation does a court proceed to determine whether the constitutional rights were clearly established at the time of the alleged violation. Aiken, 236 F.Supp.2d at 230. Here, the second prong of the inquiry need not be addressed with respect to O'Diah's First and Eighth Amendment claims because, as discussed supra, it has not been shown that defendants violated O'Diah's First and Eighth Amendment rights.
For the reasons discussed above, O'Diah's cross-motion for summary judgment should be denied in all respects.
For the reasons stated above, it is hereby
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.
Benji D. Reed, Elmira, NY, pro se.
Hon. Eric T. Schneiderman, Attorney General of the State of New York, James Seaman, Esq., Assistant Attorney General, Albany, NY, for Defendant Soto.
DAVID E. PEEBLES, United States Magistrate Judge.
In response to plaintiff's complaint the sole remaining named defendant has moved for dismissal of all claims against him for failure to state a plausible cause of action upon which relief may be granted. The plaintiff, in turn, has applied for leave to amend his complaint, and for appointment of counsel to represent him pro bona For the reasons set forth below, I recommend that defendant's motion to dismiss be granted, and will deny plaintiff's application for leave to amend, on the basis of futility in light of my recommendation regarding the legal sufficiency of his existing claims, as well as his request for assignment of counsel.
Plaintiff is a prison inmate entrusted to the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"). See generally Complaint (Dkt. No. 1). At the times relevant to the claims remaining in the action, he was designated to Eastern, located in Napanoch, New York. Id. at ¶ 3.
The events giving rise to plaintiff's claims were set in motion on September 14, 2010, when Reed developed an illness he attributed to food consumed in the mess hall at Eastern. Complaint (Dkt. No. 1) ¶¶ 32-37. Plaintiff maintains that the food causing his intestinal issues was known by defendant John Doe No. 1 to have been contaminated, and should have been inspected by defendant John Doe No. 2 prior to being served to the inmates. Complaint (Dkt. No. 1) ¶¶ 41-42.
Plaintiff was initially treated on the following day at the facility's medical clinic, along with several other affected inmates, and given "dymotabs" to address the condition. Complaint (Dkt. No. 1) ¶ 38. The medication was subsequently discontinued on that same day, however, and plaintiff was confined to his cell and placed on a water diet for one day. Id. at ¶¶ 39-40.
While at Eastern, plaintiff was designated to undergo alcohol and substance abuse treatment in a program ("ASAT") overseen by defendant M. Soto, a counselor at the facility. See Complaint (Dkt. No. 1) ¶¶ 6, 31. Based apparently upon his absence from ASAT treatment while confined to his cell due to illness, plaintiff received a misbehavior report authored by defendant M. Soto accusing him of lying regarding his location on September 15, 2010, after being asked why he did not appear for ASAT treatment, and for failing to follow facility rules regarding attendance in the program. Complaint (Dkt. No. 1) ¶ ¶ 46-47. At a subsequent disciplinary hearing conducted to address the accusations set forth in the misbehavior report, however, the charges were dismissed. Id. at ¶ 49.
Plaintiff was subsequently transferred out of Eastern and into the Southport Correctional Facility, located in Pine City, New York, in December 2010. Complaint (Dkt. No. 1) ¶ 71.
Plaintiff commenced this action on March 8, 2011. Complaint (Dkt. No. 1). Plaintiff's complaint named the two Doe defendants, M. Soto, and seven corrections employees assigned to Southport as defendants, and asserted claims under the Eighth Amendment to the United States Constitution, the Americans With Disabilities Act, 42 U.S.C. § 12,101 et seq., and section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, additionally setting forth a pendent claim of negligence. By order issued on August 2, 2011, based upon an initial review of plaintiff's complaint and accompanying in forma pauperis application, Senior District Judge McAvoy ordered all claims arising from events occurring at Southport severed, and directed that those claims be transferred to the Western District of New York. Dkt. No. 4.
In lieu of answering plaintiff's complaint defendant Soto, the sole remaining named defendant in this action, moved on October 17, 2011 for dismissal of plaintiff's claims, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. No. 11. In his motion defendant argues that plaintiff's complaint fails to allege a plausible claim upon which relief may be granted, and that in any event he is entitled to qualified immunity from suit. Id. Plaintiff has since submitted a response in opposition to defendant's motion. Dkt. No. 18.
Following the filing of defendant's dismissal motion, plaintiff moved on December 7, 2011 for leave to file an amended complaint, pursuant to Rule 15(a) of the Federal Rules of Civil Procedure. Dkt. No. 14. In his motion Reed asserts that amendment is sought to permit elimination of the claims and references to the defendants affected by the transfer to the Western District of New York, and to clarify and expand upon facts set forth in his original complaint relating to events at Eastern. See Motion for Leave to Amend (Dkt. No. 14) ¶¶ 1-2. Plaintiff has also requested appointment of counsel to represent him in the action, pro Bono. Dkt. No. 15. Defendant Soto has since responded in opposition to those motions, by letter dated January 6, 2011 from his counsel, Megan A. Brown, Esq., arguing that the motion for leave to amend should be denied as futile for the same reasons as set forth in his dismissal motion, and taking no position with regard to plaintiff's request for appointment of counsel. Dkt. No. 17.
Defendant's motion to dismiss a complaint, brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, calls upon a court to gauge the facial sufficiency of that pleading, utilizing as a backdrop a pleading standard which, though unexacting in its requirements, "demands more than an unadorned, the-defendant-unlawfully-harmed me accusation" in order to withstand scrutiny. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929, ____, (2007)). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). While modest in its requirement, that rule commands that a complaint contain more than mere legal conclusions; "[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft, 129 S.Ct. at 1950.
To withstand a motion to dismiss, a complaint must plead sufficient facts which, when accepted as true, state a claim that is plausible on its face. Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir.2008) (citing Twombly, 550 U.S. at 570, 127 S.Ct. at 1974). As the Second Circuit has observed, "[w]hile Twombly does not require heightened fact pleading of specifics, it does require enough facts to `nudge [plaintiff's] claims across the line from conceivable to plausible.'" In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir.2007) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. at 1974).
In deciding a Rule 12(b)(6) dismissal motion, the court must accept the material facts alleged in the complaint as true and draw all inferences in favor of the non-moving party. Cooper v. Pate, 378 U.S. 546, 546, 84 S.Ct. 1723, 1734 (1964); Miller v. Wolpoff & Abramson, LLP, 321 F.3d 292, 300 (2d Cir.2003), cert. denied, 540 U.S. 823, 124 S.Ct. 153, 157 L.Ed.2d 44 (2003); Burke v. Gregory, 356 F.Supp.2d 179, 182 (N.D.N.Y.2005) (Kahn, J.). The burden undertaken by a party requesting dismissal of a complaint under Rule 12(b)(6) is substantial; the question presented by such a motion is not whether the plaintiff is likely ultimately to prevail, "`but whether the claimant is entitled to offer evidence to support the claims." Log On America, Inc. v. Promethean Asset Mgmt. L.L.C., 223 F.Supp.2d 435, 441 (S.D.N.Y.2001) (quoting Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir.1995) (citations and quotations omitted)).
Plaintiff alleges that defendant Soto, motivated by Reed's use of the medical facilities at Eastern, issued two false misbehavior reports to him in September 2010. In response, Soto argues that plaintiff's vague and conclusory allegations offered in support of this retaliation claim are insufficient to survive a motion to dismiss.
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 provisions of the Eighth Amendment, a cognizable retaliation claim under 42 U.S.C. § 1983 lies. See Franco v. Kelly, 854 F.2d 584, 588-90 (2d Cir.2008). Claims by inmates that adverse actions taken by prison workers are, of course, 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 N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Davis, 320 F.3d at 352 (same).
In order to state a prima facie claim under section 1983 for retaliatory conduct, a plaintiff must advance non-conclusory 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, 50 L.Ed.2d 471 (1977); Dillon v. Morano, 497 F.3d 247, 251 (2d Cir.2007); Dawes, 239 F.3d at 492 (2d Cir.2001). If the plaintiff succeeds in carrying 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).
Having assumed plaintiff's ability to establish that he engaged in protected activity, the court's focus turns next to the question of whether he has sufficiently alleged that he experienced adverse action at the hands of the defendant. In the prison context, "[o]nly retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action for a claim of retaliation." Dawes, 239 F.3d at 493; see also Davis, 320 F.3d at 353. The adverse action inquiry is a contextual one. Davis, 320 F.3d at 353. Courts should bear in mind that "[p]risoners may be required to tolerate more . . . than average citizens, before a [retaliatory] action taken against them is considered adverse." Id.
The adverse action alleged by the plaintiff in support of his retaliation claim consists of the issuance of two false misbehavior reports. The filing of a false misbehavior report can qualify as an adverse action for purposes of a First Amendment retaliation. See Gill v. Pidlypchak, 389 F.3d 379, 384 (2d Cir.2004). The false misbehavior reports at issue led to plaintiff's keeplock cell confinement for a period of fourteen days. At this early procedural juncture, I am unable to conclude that this allegation is insufficient to support a plausible finding of adverse action. See Edwards v. Horn, No. 2012 WL 76012, at *16 (S.D.N.Y. Mar. 8, 2012) (citing Gill, 389 F.3d at 384) (false misbehavior report and placement in keeplock constitutes adverse action)).
The third requirement for pleading a cognizable retaliation claim involves linking the protected activity and adverse action alleged. It is in connection with this element that plaintiff's retaliation claim fails. In cases involving claims 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). When evaluating whether a misbehavior report is the product of retaliatory animus, an analysis most typically undertaken on a motion for summary judgment, courts generally look to several factors as bearing upon any potential nexus between the protected conduct and the misbehavior report, including "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).
In light of the plaintiff's failure to state facts sufficient to satisfy this critical element of a retaliation claim, I recommend that the defendant's motion be granted, and that plaintiff's retaliation cause of action under the First Amendment be dismissed.
Liberally construed, plaintiff's complaint could be interpreted as also asserting a claim, independent of retaliation, under the Eighth Amendment for harassment and for issuance of false misbehavior reports.
As was previously observed, the mere issuance of a false misbehavior report, standing alone, is insufficient to support a cognizable claim under the Eighth Amendment or otherwise on behalf of a prison inmate; a "prison inmate has no general constitutional right to be free from being falsely accused in a misbehavior report." Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir.1997) (citing Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir.1986), cert. denied, 485 U.S. 982, 108 S.Ct. 1273, 99 L.Ed.2d 484 (1988)). As such, plaintiff's claim related to the filing of a false misbehavior report, independent of his First Amendment retaliation cause of action, is subject to dismissal.
Defendant also interprets plaintiff's complaint as alleging that he was generally harassed by Soto, and that Soto stated to other inmates that Reed was a monster with whom they should not associate. These allegations appear to be calculated to state a violation of his Eighth Amendment's right to be free from cruel and unusual punishment. Reed's complaint, however, fails to allege any conduct that would warrant Eighth Amendment protection. As a general matter, mere verbal harassment, including that accompanied by the use of profanity, without any corresponding physical injury does not support a cognizable claim under section 1983, however boorish and unprofessional the alleged conduct may be. See Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir.1986); Gill v. Hoadley, 261 F.Supp.2d 113, 129 (N.D.N.Y.2003); Aziz Zarif Shabazz v. Pico, 994 F.Supp. 460, 474 (S.D.N.Y.1998). Nor do threats amount to a constitutional violation. Malsh v. Austin, 901 F.Supp. 757, 763 (S.D.N.Y.1995). Because plaintiff's complaint lacks allegations that would plausibly support an Eighth Amendment violation claim, I recommend dismissal of that cause of action, to the extent that his complaint may properly be construed as raising such a claim.
Motions for leave to amend are governed by Rule 15(a) of the Federal Rules of Civil Procedure which provides, in pertinent part, that unless amendment as a matter of right is permitted-under circumstances not applicable here-a party may amend its pleading "only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Fed.R.Civ.P. 15(a). Under Rule 15(a), leave to amend ordinarily should be liberally granted absent undue delay, bad faith, dilatory tactics, undue prejudice in being served with the proposed pleading, or futility. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Elma RT v. Landesmann Int'l Mktg. Corp., No. 98-CIV.662, 2000 WL 297197, at *3 (S.D.N.Y. Mar. 22, 2000) (citing Foman).
Notwithstanding the familiar and well-accepted precept that leave to amend should be granted freely and is typically permitted, if a claim contained in a proposed amended complaint would be vulnerable in the face of a Rule 12(b)(6) motion, then permitting amendment would be an act of futility that should not be sanctioned. See, e.g., Saxholm AS v. Dynal, Inc., 938 F.Supp. 120, 124 (E.D.N.Y.1996); In re Boesky Sec. Litig., 882 F.Supp. 1371, 1379 (S.D.N.Y.1995). If, on the other hand, a proposed claim sets forth facts and circumstances that may entitle the pleader to relief, then futility is not a proper basis on which to deny the right to amend. Saxholm, 938 F.Supp. at 124 (citing Allstate Ins. v. Administratia Asigurarilor De Stat, 875 F.Supp. 1022, 1029 (S.D.N.Y.1995) and Mathon v. Marine Midland Bank, N.A., 875 F.Supp. 986, 1003 (E.D.N.Y.1995) (leave to replead granted where court could not say that under no circumstances would proposed claims provide a basis for relief)).
The court has reviewed plaintiff's proposed amended complaint, and finds that it suffers from the same deficiencies as are noted above with respect to his initial complaint. Accordingly, plaintiff's motion for leave to file the proposed amended complaint accompanying his motion will be denied on basis of futility.
I am unable to conclude that if given the opportunity plaintiff nonetheless would be unable to set forth allegations sufficient to avoid dismissal of his claims at this early stage in the litigation. If he opts to amend, however, the plaintiff is advised that the law requires that "complaints relying on the civil rights statutes are insufficient unless they contain some specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning." Hunt v. Budd, 895 F.Supp. 35, 38 (N.D.N.Y.1995) (McAvoy, C.J.) (citing Barr v. Abrams, 810 F.2d 358, 363 (2d Cir.1987) (other citations omitted)); Pourzandvakil v. Humphry, No. 94-CV-1594, 1995 U.S. Dist. LEXIS 7136, at *24-25 (N.D.N.Y. May 22, 1995) (Pooler, D.J.) (citation omitted). Such an amended complaint will replace the existing second amended complaint, and therefore must be a wholly integrated and complete pleading that does not rely upon or incorporate by reference any pleading or document previously filed with the court. See Harris v. City of N. Y, 186 F.3d 243, 249 (2d Cir.1999) (citing Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir.1994)); see also Fed.R.Civ.P. 10(a). The proposed amended complaint also specifically allege facts indicating the involvement of each of the named defendants in the constitutional deprivations alleged, providing sufficient detail to establish the they were tangibly connected to those deprivations. See Bass v. Jackson, 790 F.2d 260, 263 (2d Cir.1986).
In addition to seeking leave to amend, plaintiff has applied to the court for appointment of counsel. As a threshold matter, prior to requesting appointment of pro hono counsel, a party must first demonstrate that he or she has been unable to obtain counsel through the private sector or public interest firms. Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 173-74 (2d Cir.1989) (quoting Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir.1986)). Given that plaintiff has not provided the court with information regarding any efforts by him to obtain counsel, his request is subject to denial on this basis alone.
Turning to the merits of his application, I find that Reed has not demonstrated entitlement to appointment of counsel under the applicable statute. 28 U.S.C. § 1915(e) (1) affords district courts broad though not limitless discretion in determining whether to appoint counsel to represent indigent civil litigants. Hodge, 802 F.2d at 60. In Hodge, the Second Circuit noted that when exercising that discretion the court
Id. at 61-62; see also Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir.1994) (citing Hodge). As can be seen, of the criteria enunciated by the Second Circuit to be considered when determining whether assignment of pro bono counsel is appropriate, the most important is the merits that is, "whether the indigent's position [is] likely to be of substance." Cooper, 877 F.2d at 172 (citations and internal quotations omitted). Where a plaintiff does not provide a court with evidence, as opposed to mere allegations, relating to his or her claims, that party does not meet this threshold requirement. See Herman v. Runyon, No. 96 CIV. 6080, 1997 WL 118379, at *1 (S.D.N.Y. Mar. 17, 1997).
Each case must be decided on its own facts. Velasquez v. O'Keefe, 899 F.Supp. 972, 974 (N.D.N.Y.1995) (McAvoy, J.) (citing Hodge, 802 F.2d at 61). Although the Constitution guarantees indigent litigants "meaningful access" to the courts, it does not entitle all such parties to receive the benefit of pro hono representation. Hodge, 802 F.2d at 60. While, as was previously indicated, the appointment of counsel to represent indigent parties in civil suits is authorized by statute, when that authority is exercised the court is required to call upon attorneys to donate their time pro bono to the benefit of indigent litigants and the court. Accordingly, in deference to the limited resources available to the court to serve the interests of the many indigent litigants who pursue claims before it, and recognizing the "thankless burden" associated with such assignments, Miller v. Pleasure, 296 F.2d 283, 285 (2d Cir.1961), cert. denied, 370 U.S. 964, 82 S.Ct. 1592, 8 L.Ed.2d 830 (1962), courts should not grant such applications indiscriminately, but instead must exercise good judgment and restraint in doing so. Cooper, 877 F.2d at 172.
In this instance, plaintiff has failed to make a sufficient showing to warrant appointment of counsel to represent him at this early stage in the litigation. Plaintiff's application for appointment of counsel will therefore be denied, without prejudice to renewal.
The claims now remaining before this court, following severance and transfer of a portion of plaintiff's original complaint to the Western District of New York, include causes of action against two John Doe defendants arising from plaintiff's alleged investigation of contaminated food, as well as claims of retaliation, harassment, and cruel and unusual punishment against defendant M. Soto. Because the Doe defendants in this case have not yet been identified and thus have not yet appeared in the action, the court has not been called upon to gauge the sufficiency of plaintiff's claims against those defendants.
Based upon the foregoing it is hereby respectfully,
RECOMMENDED that the motion of defendant M. Soto to dismiss plaintiff's claims against him in this action (Dkt. No. 11) be GRANTED, and that all claims against that defendant be DISMISSED, with leave to file an amended complaint as directed above within thirty days from the date of the filing a decision and order acting upon my recommendation of dismissal; and it is further
ORDERED, that plaintiff's motions for leave to amend (Dkt. No. 14) and for appointment of counsel (Dkt. No. 15) be DENIED in all respects, without prejudice to renewal.
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 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; Roland 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.
N.D.N.Y. L.R. 7.1(a)(3).
N.Y. COMP.CODES R. & REGS. tit. 7, § 1020.4(f)(2)(iii).
N.Y. COMP.CODES R. & REGS. tit. 7, § 251-4.2
