DAVID E. PEEBLES, Chief Magistrate Judge.
This is a civil rights action brought by plaintiff Arrello Barnes, who is proceeding pro se and in forma pauperis ("IFP"), pursuant to 42 U.S.C. § 1983, against several individuals employed by the New York State Department of Corrections and Community Supervision ("DOCCS"). Plaintiff alleges that his First and Fourteenth Amendments rights were violated in connection with a series of incidents that resulted in disciplinary proceedings being brought against him while he was incarcerated at four different correctional facilities operated by the DOCCS.
Currently pending before the court are cross motions brought by the parties, both seeking the entry of summary judgment in their favor. For the reasons set forth below, I recommend that plaintiff's cross motion be denied, defendants' motion be granted, and plaintiff's second amended complaint ("SAC") be dismissed in its entirety.
Plaintiff is a New York State prison inmate currently being held in the custody of the DOCCS. See generally
On August 8, 2011, plaintiff's fellow inmate at Sullivan, George Mims, was assaulted with a razor while he was exercising in the West Yard of that facility. Dkt No. 97-3 at 65;
Plaintiff was initially found guilty following a disciplinary hearing held on October 25, 2011 at Sullivan.
Following the administrative expungement, a second hearing was conducted by defendant Raymond Coveny, a corrections captain, in August and September of 2012, while plaintiff was confined to Attica.
The documentary evidence adduced by the parties reflects that although inmate Mims provided testimony at plaintiff's original disciplinary hearing, see
On September 6, 2012, defendant Coveny dismissed one charge, but found plaintiff guilty of all remaining charges.
On January 24, 2013, a letter written by plaintiff to a female friend was returned to the mailroom at Attica, with the envelope having been marked "return to sender."
On January 29 and 30, 2013, a Tier III disciplinary hearing was held before defendant John Whiteford, a senior corrections counselor at Attica.
At the conclusion of the hearing, defendant Whiteford found plaintiff guilty as charged, and plaintiff was sentenced to one year of disciplinary SHU confinement, coupled with the loss of certain privileges.
On January 29, 2015, members of the CIU at Clinton received confidential information that inmate gang members, including plaintiff, were conspiring to assault security staff at the facility.
After plaintiff was removed from his cell, defendant Richard J. Mahuta, a corrections officer assigned to the CIU, and another officer conducted a cell search.
However, during the cell search, defendant Mahuta discovered three handwritten pages of material that he believed to be prohibited gang material.
Between February 5, 2015 and February 27, 2015, defendant Kenneth McKeighan, an industrial superintendent at Great Meadow, conducted a Tier III disciplinary hearing with respect to the two MBRs.
At the hearing, plaintiff also requested copies of the "call outs" or "yard go-arounds" for Clinton, contesting that those materials would demonstrate that he was not in the yard with his co-conspirators during the relevant times.
Plaintiff also requested that video footage from Clinton's North Yard be provided at the hearing, arguing that it would show that he was not in the area during the relevant time, thereby undercutting the claims made by the confidential informant. See, e.g.,
At the conclusion of the hearing, defendant McKeighan found plaintiff guilty as charged.
Following the conclusion of the hearing, plaintiff filed a series of appeals challenging defendant McKeighan's determination.
In addition to addressing one of his appeals to defendant Anthony Annucci, the Acting Commissioner of the DOCCS, see
On February 20, 2015, plaintiff filed a grievance in connection with defendant Mahuta's cell search, stating
Plaintiff commenced this action on or about June 25, 2015, by the filing of a complaint accompanied by an application for leave to proceed IFP and a motion for a preliminary injunction. Dkt. Nos. 1, 2, 4. Although plaintiff's original IFP application was denied by the court as incomplete, his subsequent motion for leave to proceed without prepayment of fees was granted. Dkt. Nos. 5, 6, 10.
By decision and order dated September 17, 2015, Senior District Judge Gary L. Sharpe denied plaintiff's motion for preliminary injunctive relief.
On October 26, 2015, and prior to service upon defendants, plaintiff filed an amended complaint ("FAC"), which was accepted by Judge Sharpe because it was deemed "a pleading which reflects the [c]ourt's rulings in the [initial] order." Dkt. No. 17. In response to plaintiff's FAC, defendants filed a motion on September 21, 2016, seeking its dismissal for failure to state a claim upon which relief may be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
On July 14, 2017, I issued a report, which recommended the dismissal of various claims and several defendants from the action. See generally
Plaintiff's SAC was referred to me for review to determine whether the deficiencies that were discerned in my July 14, 2017 report and recommendation had been cured by the filing of plaintiff's SAC.
On January 23, 2018, following the close of discovery, defendants filed a motion for summary judgment, seeking dismissal of plaintiff's claims on various grounds, both procedural and on the merits.
Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure, which provides that 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").
Defendants contend that plaintiff failed to fully exhaust his administrative remedies with respect to his First Amendment free speech claim against defendants Olles and Mahuta and his First Amendment free exercise claim against Mahuta.
The Prison Litigation Reform Act of 1996 ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996), which imposes several restrictions on the ability of prisoners to maintain federal civil rights actions, expressly provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a); see also Ross v. Blake, 136 S.Ct. 1850, 1856 (2016). Section 1997e(a)'s exhaustion provision is mandatory and applies to all inmate lawsuits regarding the conditions of their confinement. Ross, 136 S. Ct. at 1856; Woodford v. Ngo, 548 U.S. 81, 84 (2006); Porter v. Nussle, 534 U.S. 516, 524, 532 (2002); Williams v. Corr. Officer Priatno, 829 F.3d 118, 122 (2d Cir. 2016). In the event a defendant establishes that the inmate-plaintiff failed to fully comply with the administrative process prior to commencing an action in federal court, the plaintiff's complaint is subject to dismissal. See Woodford, 548 U.S. at 93 ("[W]e are persuaded that the PLRA exhaustion requirement requires proper exhaustion."); see also Wilson v. McKenna, 661 F. App'x 750, 752 (2d Cir. 2016). "Proper exhaustion" requires a plaintiff to procedurally exhaust his claims by "compl[ying] with the system's critical procedural rules." Woodford, 548 U.S. at 95; accord, Macias v. Zenk, 495 F.3d 37, 43 (2d Cir. 2007).
In New York, the DOCCS has instituted a grievance procedure, designated as the Inmate Grievance Program ("IGP"), for use by prison inmates to lodge complaints regarding the conditions of their confinement. Williams, 829 F.3d at 119. The IGP is comprised of three steps that inmates must satisfy when they have a grievance regarding prison conditions. 7 N.Y.C.R.R. §§ 701.1, 701.5; Williams, 829 F.3d at 119. The IGP requires that an inmate first file a grievance with "the clerk" within twenty-one days of the alleged occurrence giving rise to his complaint. 7 N.Y.C.R.R. § 701.5(a)(1). "The complaint may only be filed at the facility where the inmate is housed even if it pertains to another facility." Id. Representatives of the inmate grievance resolution committee ("IGRC")
A grievant may then appeal the IGRC's decision to the facility's superintendent within seven days after receipt of the IGRC's written decision. 7 N.Y.C.R.R. § 701.5(c). The superintendent must issue a written decision within a certain number of days after receipt of the grievant's appeal.
The third and final step of the IGP involves an appeal to the CORC, which must be taken within seven days after an inmate receives the superintendent's written decision. 7 N.Y.C.R.R. § 701.5(d)(1)(i). The CORC is required to render a written decision within thirty days of receipt of the appeal. 7 N.Y.C.R.R. § 701.5(d)(2)(i), (ii).
Where an inmate's grievance complains of employee harassment, the grievance is forwarded directly to the superintendent, bypassing the IGRC review. 7 N.Y.C.R.R. § 701.8(b), (c). The superintendent then has twenty-five days from the date of its receipt to render a decision. 7 N.Y.C.R.R. § 701.8(f). An inmate may appeal the superintendent's decision to the CORC within seven days of its receipt. 7 N.Y.C.R.R. § 701.8(h).
As can be seen, at each step of the IGP process, a decision must be rendered within a specified time period. 7 N.Y.C.R.R. § 701.5. Where the IGRC and/or superintendent do not timely respond, an inmate is permitted to appeal "to the next step." 7 N.Y.C.R.R. § 701.6(g)(2). Generally, if a plaintiff fails to follow each of the required three steps of the above-described IGP prior to commencing litigation, he has failed to exhaust his administrative remedies as required under the PLRA. See Ruggerio v. Cty. of Orange, 467 F.3d 170, 176 (2d Cir. 2006) ("[T]he PLRA requires proper exhaustion, which means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits)." (internal quotation marks omitted)).
While the PLRA mandates exhaustion of available administrative remedies, it also "contains its own, textual exception to mandatory exhaustion." Ross, 136 S. Ct. at 1858. More specifically, section 1997e(a) provides that only those administrative remedies that "are available" must first be exhausted. 42 U.S.C. § 1997e(a); see also Ross, 136 S. Ct. at 1858 ("[T]he exhaustion requirement hinges on the availab[ility] of administrative remedies." (alteration in original) (internal quotation marks omitted)). In the PLRA context, the Supreme Court has determined that "availability" means that "an inmate is required to exhaust those, but only those, grievance procedures that are capable of use to obtain some relief for the action complained of." Ross, 136 S. Ct. at 1859 (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)) (internal quotation marks omitted).
In Ross, the Supreme Court identified three circumstances in which a court could find that internal administrative remedies are not available to prisoners under the PLRA.
During his deposition, plaintiff testified that he had filed "a lot" of grievances during his time in DOCCS custody.
During his deposition, plaintiff was asked whether he had filed a grievance regarding the allegation that defendant Olles violated plaintiff's First Amendment right to free speech by his unjustified confiscation of plaintiff's "return to sender" letter in January of 2013. See
With respect to plaintiff's free exercise and free speech claims against defendant Mahuta, both of which arise out of the January 29, 2015 search of plaintiff's cell, plaintiff acknowledged that he filed only one grievance arising out of that incident on February 20, 2015 (GM 59, 12915).
Consistent with the objectives of the PLRA, "inmates must provide enough information about the conduct of which they complain to allow prison officials to take appropriate responsive measures." Johnson, 380 F.3d at 697. In determining whether exhaustion has been achieved, the standard for determining the sufficiency of an administrative grievance is analogous to that of notice pleading. Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006) (citing Johnson, 380 F.3d at 697).
Although it is "appropriate to afford pro se inmates a liberal grievance pleading standard, the grievance may not be so vague as to preclude prison officials from taking appropriate measures to resolve the complaint internally." Brownell, 446 F.3d at 310; see also Singh v. Lynch, 460 F. App'x. 45, 47 (2d Cir. 2012); Turner v. Goord, 376 F.Supp.2d 321, 324 (W.D.N.Y. 2005) ("[T]he mere fact that [the] plaintiff filed some grievance, and fully appealed all the decisions on that grievance, does not automatically mean that he can now sue anyone who was in any way connected with the events giving rise to that grievance."). Even affording plaintiff the appropriate lenity as a pro se litigant, plaintiff's grievance failed to describe any First Amendment concern arising out of defendant Mahuta's cell search.
Although it is true that "a claim may be exhausted when it is closely related to, but not explicitly mentioned in an exhausted grievance," Simmons v. Robinson, No. 07-CV-7383, 2011 WL 31066, at *4 (S.D.N.Y. Jan. 4, 2011) (citing Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009)), I am unable to conclude that the sole grievance filed by plaintiff provided the facility with sufficient information to permit an investigation of his concerns regarding the disposal of religious headwear or the seizure of three pages of gang-related material.
This, of course, does not end the court's inquiry with respect to exhaustion. Plaintiff, however, has not claimed that the IGP process was unavailable to him during the relevant times periods. To the contrary, the record evidence indicates that plaintiff was able to successfully navigate the grievance procedure while housed in a SHU at a different facility.
Accordingly, the undisputed facts in this case reveal that with respect to his First Amendment claims, plaintiff failed to fully comply with the IGP prior to the commencement of this action, despite his remedies remaining available to him at all relevant times. I therefore recommend that defendants' motion for summary judgment on this basis be granted on this procedural basis.
Defendants contend that plaintiff was afforded adequate due process during the disciplinary proceedings conducted by defendants Coveny, Whiteford, and McKeighan.
To establish a procedural due process claim under section 1983, a plaintiff must show that he (1) possessed an actual 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). Much like their prior motions, defendants do not seek dismissal of any of plaintiff's due process claims on the basis that he was not denied a constitutionally significant liberty interest, see generally
The procedural safeguards to which a prison inmate is entitled before being deprived of a constitutionally cognizable liberty interest are well established under Wolff v. McDonnell, 418 U.S. 539 (1974). In its decision in Wolff, the Court held that the constitutionally mandated due process requirements include (1) written notice of the charges to the inmate; (2) the opportunity to appear at a disciplinary hearing and a reasonable opportunity to present witnesses and evidence in support of his defense, subject to a prison facility's legitimate safety and penological concerns; (3) a written statement by the hearing officer explaining his decision and the reasons for the action being taken; and (4) in some circumstances, the right to assistance in preparing a defense. Wolff, 418 U.S. at 564-69; see also Luna v. Pico, 356 F.3d 481, 487 (2d Cir. 2004). To pass muster under the Fourteenth Amendment, a hearing officer's disciplinary determination must also garner the support of at least "some evidence." Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455 (1985); Luna, 356 F.3d at 487-88.
The due process clause of the Fourteenth Amendment also guarantees that "[a]n inmate subject to a disciplinary hearing is entitled to . . . an impartial hearing officer." Allen v. Cuomo, 100 F.3d 253, 259 (2d Cir. 1996) (citing, inter alia, Wolff, 418 U.S. at 570-71). The Second Circuit has explained that its "conception of an impartial decisionmaker is one who, inter alia, does not prejudge the evidence and who cannot say . . . how he would assess evidence he has not yet seen." Patterson v. Coughlin, 905 F.2d 564, 570 (2d Cir. 1990). "The degree of impartiality required of prison officials[, however,] does not rise to the level of that required of judges." Allen, 100 F.3d at 259. Indeed, "[i]t is well recognized that prison disciplinary hearing officers are not held to the same standard of neutrality as adjudicators in other contexts." Id. (citing Russell v. Selsky, 35 F.3d 55, 60 (2d Cir. 1996); Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir. 1989)). "A hearing officer may satisfy the standard of impartiality if there is 'some evidence in the record' to support the findings of the hearing." Allred v. Knowles, No. 06-CV-0456, 2010 WL 3911414, at *5 (W.D.N.Y. Oct. 5, 2010) (emphasis in original) (quoting Hill, 472 U.S. at 455).
According to plaintiff, defendant Coveny violated his due process rights during the second hearing by improperly denying his request to call Officer Connors, Officer Zarrias, and inmate Mims as witnesses.
In this case, after an exhaustive review of the record evidence, I conclude that no reasonable factfinder could conclude that defendant Coveny violated plaintiff's due process rights at the second hearing. First, with respect to plaintiff's alleged request to call Officer Zarrias, although it appears plaintiff did call him as a witness for the initial hearing, there is no record evidence that plaintiff sought his testimony in connection with the second hearing.
In addition, although plaintiff requested testimony from inmate Mims, who had also testified at the initial hearing, that witness refused to provide testimony at the second hearing and declined to elaborate on the reasons for his refusal beyond "[b]ecause I am not doing it."
Finally, with respect to the testimony of Officer Connors, the record reveals that plaintiff's request to call him as a witness was initially granted and defendant Coveny contacted him to "make arrangement for [his] testimony."
Accordingly, because no reasonable factfinder could conclude that defendant Coveny violated plaintiff's procedural due process rights, I recommend that the claim against defendant Coveny be dismissed.
Plaintiff alleges that defendant Whiteford violated his due process rights during the January 2013 disciplinary hearing when he denied his request to call Officer Kentzel as a witness.
During the disciplinary hearing, Sergeant O'Connell stated that he had compared the handwriting and signature on the "return to sender" letter with correspondence known to be written by plaintiff, and concluded that plaintiff was the author of the letter at issue.
Based upon the record evidence, no reasonable juror could find that defendant Whiteford violated plaintiff's due process rights by denying his request to call Officer Kentzel. See Delee v. Hannigan, 729 F. App'x 25, 31 (2018) ("[D]efendants had the right to refuse to hear irrelevant testimony from witnesses with no personal knowledge.") (citing 7 N.Y.C.R.R. § 253.6(c); Kingsley, 937 F.2d at 30 (2d Cir. 1991)); see also Kalwasinski, 201 F.3d at 109. I note moreover, courts have been cautioned not to "second guess" a hearing officer's decision to deny an inmate's witness requests where the hearing officer articulates a basis for his decision. See Wolff, 418 U.S. at 566 (explaining that courts "should not be too ready to exercise oversight and put aside the judgment of prison administrators").
Because no reasonable factfinder could conclude that defendant Whiteford violated plaintiff's procedural due process rights by refusing to call Officer Kentzel, I recommend that the claim against him be dismissed.
Plaintiff alleges that defendant McKeighan violated his due process rights in connection with the February 2015 disciplinary proceeding by (1) denying plaintiff's request to call his brother as a witness; (2) permitting the admission of fabricated evidence; and (3) denying plaintiff's request for video footage.
First, when the search of plaintiff's cell uncovered three pages of gang-related material, plaintiff was charged with violating Rule 105.13 of the standards of inmate behavior, see
Next, there is no merit to plaintiff's allegation that defendant McKeighan permitted the admission of evidence that was purportedly fabricated, and this allegation evinces plaintiff's misapprehension of the evidence that was provided pursuant to his own request. Plaintiff requested copies of what he referred to as "call outs" or "yard go-arounds" for Clinton which, he asserted, would demonstrate that he was not in the yard with his co-conspirators during the relevant times.
Finally, to the extent that defendant McKeighan denied plaintiff's request for certain video footage, the record is clear that the evidence did not exist inasmuch as it had been taped over in the normal course of business by the time the conspiracy had been uncovered. Accordingly, because no reasonable factfinder could conclude that defendant McKeighan violated plaintiff's procedural due process rights, I recommend that the claim against him be dismissed.
Defendants argue that plaintiff's supervisory liability claim against defendant Annucci must be dismissed because there is no evidence that he was personally involved in the review or determination of plaintiff's appeals.
It is well-established that a defendant cannot be liable under section 1983 solely by virtue of being a supervisor, "`and [liability] cannot rest on respondeat superior.'" Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003) (quoting Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003)); see also Wright, 21 F.3d at 501. To establish responsibility on the part of a supervisory official for a civil rights violation, a plaintiff must demonstrate that the individual (1) directly participated in the challenged conduct; (2) after learning of the violation through a report or appeal, failed to remedy the wrong; (3) created or allowed to continue a policy or custom under which unconstitutional practices occurred; (4) was grossly negligent in managing the subordinates who caused the unlawful event; or (5) failed to act on information indicating that unconstitutional acts were occurring. lqbal v. Hasty, 490 F.3d 143, 152-53 (2d Cir. 2007), rev'd on other grounds sub nom. Ashcroft v. lqbal, 556 U.S. 662 (2009); see also Richardson, 347 F.3d at 435; Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); Wright, 21 F.3d at 501.
Plaintiff alleges that he wrote to defendant "Annucci, making him aware of the [c]onstitutional violations, conducted by his subordinates[,]" but that Annucci "failed to remedy the wrong."
It is well settled that Annucci's failure to respond to plaintiff's amended appeal and letter, without more, is not sufficient to give rise to personal involvement under section 1983. Cole v. New York State Dep't of Corr. & Cmty. Supervision, No. 14-CV-0539, 2016 WL 5394752, at *22 (Aug. 25, 2016) (Peebles, M.J.), report and recommendation adopted by 2016 WL 5374125 (N.D.N.Y. Sept. 26, 2016) (Sannes, J.); see also, e.g., Houston v. Schriro, No. 11-CV-7374, 2014 WL 6694468, at *14 (S.D.N.Y. Nov. 26, 2014) ("[I]gnoring a prisoner's letter or complaint is insufficient to render an official personally liable."); Parks v. Smith, No. 08-CV-0586, 2011 WL 4055415, at *14 (N.D.N.Y. March 29, 2011) ("A prisoner's allegation that a supervisory official failed to respond to a grievance is insufficient to establish that official's personal involvement.").
For these reasons, I find that no reasonable factfinder could conclude, based on the record evidence, that defendant Annucci was personally involved in any of the allegations giving rise to this action.
With respect to defendant Venettozzi, plaintiff alleges that after learning of the violation of his due process rights through his appeal, defendant Venettozzi failed to remedy the wrong.
Here, there is no genuine dispute of material fact that Venettozzi received and decided plaintiff's appeal in connection with the February 27, 2015 disciplinary determination that was issued by defendant McKeighan. See generally
I affirmed the findings of guilt.
Id. at 3-4. As a result, defendant Venettozzi affirmed the finding of guilt, but reduced plaintiff's penalty from 910 days to twelve months of disciplinary SHU confinement.
As defendants observe, upon plaintiff's appeal defendant Venettozzi did not identify any constitutional violations, including the failure to provide plaintiff with due process of law.
For these reasons, I find that no reasonable factfinder could conclude, based on the record evidence, that defendant Venettozzi was personally involved in any of the constitutional deprivations giving rise to this action.
According to plaintiff, following a series of incidents that resulted in disciplinary proceedings being brought against him, defendants violated his First and Fourteenth Amendments rights. Discovery having closed, defendants seek dismissal of plaintiff's claims on a variety of grounds, while plaintiff has cross moved for the entry of summary judgment. Having carefully reviewed the record before the court, defendants are entitled to the entry of summary judgment dismissing all claims. Accordingly, it is hereby respectfully
RECOMMENDED that defendants' motion for summary judgment (
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.
ORDERED that the clerk of the court is respectfully directed to modify the court's records to change defendant Ollies to "Anthony Olles", defendant J. Whitford to "John Whiteford", and Donald Venetozzi to "Donald Venettozzi", as set forth in footnote number one; and it is further
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.
J. PAUL OETKEN, District Judge.
In January 2011, Abdur-Raheem was a prisoner at New York State's Green Haven Correctional Facility ("Green Haven"), and worked as a porter in the Family Reunion Program ("FRP"), where his duties included cleaning the FRP trailers. (Dkt. No. 1 ("Compl."), Ex. A ("N.Y.S.Decision").) Defendant Caffery was a Tier III hearing officer at Green Haven. (Compl. at 5.) Defendant Prack was the Director of Special Housing/Inmate Disciplinary Program for the New York State Department of Corrections and Community Supervision ("DOCCS"). (Id. Ex. B.)
On January 27, 2011, Abdur-Raheem cleaned the trailer where one of his own FRP visits was to be held and brought a few personal items into the trailer. (Compl. at 5; N.Y.S. Decision.) Soon thereafter, a corrections officer who worked in the FRP office noticed that two cartridges of film were missing from the office, and, after a search, discovered one cartridge hidden between the mattresses of the bed in the trailer in which Abdur-Raheem was to have his FRP visit. (N.Y.S.Decision.) Abdur-Raheem was immediately placed in the Special Housing Unit, or "SHU." (Compl. at 5.)
Abdur-Raheem was charged in a prison misbehavior report with smuggling, stealing, and violating FRP guidelines. (N.Y.S.Decision.) On February 14, 2011, he was found guilty of the charges following a Tier III disciplinary hearing before Defendant Caffery. (Id.; Compl. at 5; Compl. Ex. B.) Caffery sentenced Abdur-Raheem to six months in the S.H.U. The punishment included loss of packages, commissary, and phone privileges for the full six-month period. (Compl. at 5.) It appears from the complaint that Abdur-Raheem may have been released early on April 4, 2011. (Id.) In any event, Caffery's determination was affirmed on administrative appeal. (N.Y.S.Decision.)
Abdur-Raheem subsequently initiated a proceeding in New York state court pursuant to CPLR Article 78, contending that his right to call witnesses had been infringed at the Tier III hearing when Caffery failed to make a personal inquiry concerning the reason Abdur-Raheem's witness refused to testify. (N.Y.S.Decision.) The witness, a fellow inmate, was the other porter in the FRP program who had access to the FRP trailers. (Id.) He had initially agreed to testify, but later refused. (Id.) At the hearing, Caffery informed Abdur-Raheem of the inmate's refusal to testify and indicated that two officers had spoken to the inmate about his refusal. (Id.) In addition, Caffery gave Abdur-Raheem a copy of the inmate refusal form, which indicated that the requested witness did not "have knowledge of any photos" and "did not want to be involve[d]." (Id.)
On September 20, 2012, Prack sent a letter to Abdur-Raheem advising him "on behalf of the Commissioner" that his prison disciplinary determination had been "reviewed and administratively reversed," and that rehearing was "not warranted." (Compl.Ex.B.)
Abdur-Raheem sues Caffery and Prack in their official and individual capacities under 42 U.S.C. § 1983. He alleges that Caffery violated his Fourth, Eighth, and Fourteenth Amendment rights when he failed to personally inquire as to why the witness refused to testify, and that Prack "unconstitutionally left [him] confined to S.H.U. from Jan[uary] 27, 2011, until April 4, 2011." (Compl. at 5.) He seeks damages of $150 for each day in SHU, $.32 per hour for the wages he lost as a result of being held in SHU, and punitive damages of $2,500. (Id. at 5-6.)
The complaint was filed on July 8, 2013. (Dkt. No. 1.) On September 24, 2013, the Court sua sponte dismissed Abdur-Raheem's official-capacity claims against the Defendants on the ground that, as state agents, Caffery and Prack have Eleventh Amendment immunity from suit for damages in their official capacities.
In determining whether a plaintiff has pleaded facts sufficient to survive a motion to dismiss, a court will not consider mere conclusory allegations that lack a factual basis. Hayden v. Paterson, 594 F.3d 150, 160-61 (2d Cir.2010). A plaintiffs complaint "must at a minimum assert nonconclusory factual matter sufficient to nudge its claims across the line from conceivable to plausible to proceed." EEOC v. Port Auth. of N. Y. & N.J., 768 F.3d 247, 254 (2d Cir.2014) (quoting Iqbal, 556 U.S. at 680) (alterations and internal quotation marks omitted).
In assessing the sufficiency of the complaint, a court may consider "any written instrument attached to it as an exhibit, materials incorporated in it by reference, and documents that, although not incorporated by reference, are integral to the complaint." Sira v. Morton, 380 F.3d 57, 67 (2d Cir.2004) (citations and internal quotation marks omitted). "Integral" documents are those "either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit." Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002) (quoting Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.1993)). In order for a document to be "integral," however, a plaintiff must actually have relied on its terms and effect in drafting the complaint; mere possession or notice is not enough. Id. Finally, Abdur-Raheem's pro se complaint is subject to more lenient standards than a complaint filed by a represented party. "A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks omitted); see also Fed. Rule Civ. P. 8(e) ("Pleadings must be construed so as to do justice.").
To prevail on a claim under 42 U.S.C. § 1983, a plaintiff must "`show that [an] official, acting under color of state law, caused the deprivation of a federal right.'" Coon v. Town of Springfield, Vt., 404 F.3d 683, 686 (2d Cir.2005) (quoting Graham, 473 U.S. at 166 (1985)). There is no dispute here that Caffery and Prack, employees of the DOCCS, were acting under color of state law. The parties dispute the second element, that is, whether Abdur-Raheem has stated a plausible claim that Caffery or Prack deprived him of a right guaranteed by the United States Constitution. Abdur-Raheem alleges violations of his Fourth, Eighth, and Fourteenth Amendment rights.
Abdur-Raheem alleges that his Eighth Amendment rights were violated when he was placed in the SHU. (Id.) "In order to establish a violation of his Eighth Amendment rights, 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." Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir.2001) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). A prison official has a culpable state of mind if he "participated directly in the alleged event, . . . learned of the inmate's complaint and failed to remedy it, . . . created or permitted a policy that harmed the inmate, or acted with gross negligence in managing subordinates." Id.
Abdur-Raheem has not plausibly pleaded either of these elements. As to his detention in the SHU, he states only that he lost his privileges with respect to receiving packages, the commissary, and phone calls. Even assuming that Abdur-Raheem's SHU confinement lasted for the full six-month period, these allegations are not sufficient to give rise to an Eighth Amendment violation. See, e.g., Dixon v. Goord, 224 F.Supp.2d 739, 748-49 (S.D.N.Y.2002) (holding that "allegations of having been cut off from the prison population, a computer program, religious services, legal research, medical showers and personal property, as well as limits on food access, and other normal incidents of SHU confinement," which lasted ten months, were "not violations of the Eighth Amendment"). And he makes no allegation as to Caffery's culpable state of mind in sentencing him to six months in the SHU. Accordingly, Abdur-Raheem's Eighth Amendment claim is dismissed.
Abdur-Raheem's Fourteenth Amendment claim against Caffery is a procedural due process claim. To state such a claim, Abdur-Raheem must allege that he has a protected liberty interest and that he was deprived of sufficient process to protect that interest. See Sandin v. Conner, 515 U.S. 472, 484 (1995). Abdur-Raheem argues that Caffery deprived him of due process when he sentenced him to the SHU without inquiring into the requested witness's reason for refusing to testify at the Tier III hearing. (Compl. at 5.)
Liberty or Property Interest: A prisoner's liberty interest is implicated by SHU confinement only if the confinement "imposes [an] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. Factors relevant to determining whether the plaintiff endured an "atypical and significant hardship" include "the extent to which the conditions of the disciplinary segregation differ from other routine prison conditions" and "the duration of the disciplinary segregation imposed compared to discretionary confinement." Wright v. Coughlin, 132 F.3d 133, 136 (2d Cir.1998).
It is unclear from the complaint whether Abdur-Raheem spent 67 days or six months (180 days) in the SHU. Either way, he spent more than 30 days in the SHU, and therefore development of a detailed record of the SHU conditions he was subject to is advisable before the Court will dismiss this claim for failure to plead a protected liberty interest. The factual record before the Court is far from detailed; Abdur-Raheem states only that the SHU sanction "included loss of packages, commissary, [and] phone privileges." (Compl. at 5.) The Court will therefore not dismiss Abdur-Raheem's procedural due process claim on this ground. Rather, the Court assumes without deciding that Abdur-Raheem's SHU confinement implicates a protected liberty interest, and asks whether he was given sufficient process.
Process: "A prisoner may not properly be deprived of a cognizable liberty interest without due process of law." Gaston, 249 F.3d at 163. Due process requires that a prisoner be provided, at minimum, with "advance written warning of the charges against him, the opportunity to call witnesses, and a written final decision on the hearing describing how the state reached its determination." Odom v. Kerns, No. 99 Civ. 10668(KMK)(MHD), 2008 WL 2463890, at *9 (S.D.N.Y. June 18, 2008) (citing Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974)); see also Ponte v. Real, 471 U.S. 491, 495 (1985) ("Chief among the due process minima outlined in Wolff was the right of an inmate to call and present witnesses and documentary evidence in his defense before the disciplinary board."). Abdur-Raheem challenges only the second of these requirements; he alleges that his right to call witnesses was infringed when Caffery failed to make a personal inquiry into Abdur-Raheem's witness's refusal to testify. (Compl. at 5.)
"Clearly, if a witness will not testify if called, it cannot be a `necessity' to call him. [Therefore,] if a prison official . . . reasonably concludes that it would be futile to call a witness to testify, his refusal to do so will not constitute a violation of the prisoner's constitutional rights." Silva v. Casey, 992 F.2d 20, 22 (2d Cir. 1993). Courts in this and neighboring districts have consistently held that a prison hearing officer's failure to call a fellow inmate who refuses to testify does not violate due process. See Odom, 2008 WL 2463890, at *10 ("A witness's refusal to testify is a rational reason for denying Plaintiffs request to call witnesses."); Jamison v. Fischer, No. 11 Civ. 4697(RJS), 2013 WL 5231457, at *3 & n. 4 (S.D.N.Y. July 11, 2013) (holding that a hearing officer could have reasonably concluded that it would be futile to call witnesses where those witnesses submitted witness refusal sheets, and that therefore the fact that these witnesses were not made to testify did not deprive the plaintiff of due process); Turner v. Grant, No. 98 Civ. 706A, 2000 WL 362032, at *5 (W.D.N.Y. Mar. 29, 2000) (holding that a hearing officer did not violate the plaintiffs due process rights in failing to call a witness who refused to testify); Merced v. Moylan, No. 9:05 Civ. 1426 (FJS/RFT), 2007 WL 3171800, at *9 (N.D.N.Y. Oct. 29, 2007) ("A failure to summon the testimony of a witness who has refused to testify, in the absence of evidence that the refusal was linked to intimidation on the part of prison officials, does not violate due process because calling a witness who refuses to speak upon questioning would be futile.").
Moreover, "[t]here is no indication in Second Circuit or Supreme Court case law that a hearing officer must make an independent evaluation of the basis for the refusal to testify." Greene v. Coughlin, No. 93 Civ. 2805(DLC), 1995 WL 60020, at *14 (S.D.N.Y. Feb. 10, 1995) (holding that a Tier III hearing officer does not violate a prisoner's due process rights when he fails to investigate the reasons for an inmate refusing to testify); Jamison, 2013 WL 5231457, at *3 (same); Dumpson v. Rourke, No. 96 Civ. 621(RSP), 1997 WL 610652, at *1 (N.D.N.Y. Sept. 28, 2006) (same). While failure to make such an independent evaluation violates state regulations, it does not violate the complaining prisoner's federal constitutional rights. See Martinez v. Minogue, No. 9:06 Civ. 546, 2008 WL 4241746, at *5-6 (N.D.N.Y. Sept. 11, 2008).
Under this precedent, Caffery did not violate Abdur-Raheem's due process rights when he proceeded without the testimony of Abdur-Raheem's proposed witness. That witness had indicated, by way of an inmate refusal form, that he would not testify. Further, while Caffery may have had an obligation under New York law to further investigate the inmate's refusal to testify, he did not have an obligation under the Due Process Clause to do so. Rather, he was constitutionally required only to explain to Abdur-Raheem why the witness was not called. Caffery fulfilled this obligation when he gave Abdur-Raheem a copy of the inmate refusal form at the Tier III hearing, which indicated that the inmate had refused to testify because he did not have knowledge of the event and did not want to be involved. Accordingly, Abdur-Raheem's Fourteenth Amendment procedural due process claim against Caffery is dismissed.
The complaint also names Prack, who was the Director of the DOCCS Special Housing/Inmate Disciplinary Program when Abdur-Raheem was confined in the SHU. (Compl. at 5; id. Ex. B.) The complaint alleges only that Prack left Abdur-Raheem "unconstitutionally . . . confined to S.H.U. from Jan[uary] 27, 2011, until April 4, 2011." (Id. at 5.)
For the foregoing reasons, Defendants' motion to dismiss the complaint is GRANTED. The Clerk of Court is directed to close the motion at docket number 18 and to close the case.
SO ORDERED.
Jeffrey Allred, Queensvillage, NY, pro se.
Kim S. Murphy, NYS Attorney General's Office, Buffalo, NY, for Defendants.
H. KENNETH SCHROEDER, JR., United States Magistrate Judge.
Plaintiff, Jeffrey Allred, filed this pro se action seeking relief pursuant to 42 U.S.C. § 1983. Dkt. # 1. Plaintiff alleges that while an inmate at the Gowanda Correctional Facility ("Gowanda") his rights pursuant to the First, Eighth, and Fourteenth Amendments to the United States Constitution were violated. Id. Currently before the Court is defendants' motion for summary judgment. Dkt. # 18. For the following reasons, defendants' motion for summary judgment is granted and the plaintiffs complaint is dismissed in all respects.
Plaintiff filed this action on July 11, 2006, against defendants, Michael Knowles and Louis Noto, pursuant to 42 U.S.C § 1983, seeking monetary damages. Id. The action arises from a misbehavior report issued on or about July 27, 2003 by defendant Noto against plaintiff and the resulting Tier III disciplinary hearing conducted by defendant Knowles. Id. Specifically, the complaint alleges the issuance of a false misbehavior report, retaliation and violation of plaintiffs due process rights. Id.
At the time of the events alleged in the complaint, plaintiff was an inmate in the care and custody of the New State Department of Correctional Services ("DOCS") housed at Gowanda. Dkt. # 1, p. 2; Dkt. # 20, p. 1. Defendant Knowles was a Captain at Gowanda and his duties included, from time to time, conducting inmate disciplinary hearings. Dkt. # 1, pp. 3-4; Dkt. # 21, pp. 1-2. Sergeant Noto was a DOCS Sergeant on plaintiffs housing unit at Gowanda. Dkt. # 1, p. 4; Dkt. # 22, pp. 1-2.
On July 22, 2003, at approximately 8:30 p.m., Correctional Officer Millich discovered several marijuana cigarettes during a search of inmate Meja's cell. Dkt. # 22, p. 3. Consequently, defendant Noto initiated an investigation into the matter. Dkt. # 1, p. 8; Dkt. # 22, p. 3. Defendant Noto maintained that Meja told him that he had purchased the marijuana cigarettes from plaintiff. Dkt. # 22, p. 3. Based on Meja's identification of plaintiff and information allegedly received from confidential informant(s)—who identified plaintiff as a drug dealer and indicated that the sale in question occurred between 7:00 and 8:00 p.m. on July 22, 2003 in the prison yard —defendant Noto issued a misbehavior report charging plaintiff with violating Inmate Rule 113.25. Dkt. # 1, pp. 22 and 25; Dkt. # 22, p. 3. Inmate Rule 113.25 provides that "an inmate shall not make, possess, sell or exchange any narcotic, narcotic paraphernalia, controlled substance or marijuana. An inmate shall not conspire with any person to introduce such items into the facility." Dkt. # 22, p. 2; see also 7 NYCRR § 270.2(14)(xv).
On July 28, 2003, a Tier III disciplinary hearing was conducted before defendant Knowles. Dkt. # 1, p. 23; Dkt. # 21, p. 2. At the hearing, plaintiff testified in his own defense that he was at a Nation of Islam ("NOI")/ Black studies program during the period of the alleged drug sale in the prison yard. Dkt. # 1, p. 24; Dkt. # 21, p. 6. Plaintiff called two other inmates, Ford and Williams, as alibi witnesses. Dkt. # 1, p. 29; Dkt. # 21, p. 7. Ford and Williams attended the NOI/Black studies program with plaintiff, but could not verify the time plaintiff left. Dkt. # 21, pp. 7 and 16. The sign-out sheet for the NOI/Black studies class did not indicate the time plaintiff left, although it indicated that both Ford and Williams left at 7:00 p.m. Id. Plaintiff did not sign back into his housing unit until 8:10 p.m. and no one was able to verify his whereabouts after 7:00 p.m. Dkt. # 21, p. 17. Defendant Knowles interviewed the confidential informant(s) outside the presence of plaintiff and found them to be credible witnesses. Dkt. # 21, pp. 7-8. The confidential informant(s) identified plaintiff as a drug dealer and indicated that the sale of the drugs to Meja occurred between 7:00-8:00 p.m. in the prison yard. Id. Meja also testified at the hearing, and recanted his initial identification of plaintiff as the person who sold him drugs. Dkt. # 1, p. 26; Dkt. # 21, p. 11. When asked by defendant Knowles why he initially told defendant Noto that plaintiff was the individual who sold him drugs, Meja answered that he did so because he wanted defendant Noto to "leave [him] alone." Dkt. # 24, Ex. D, p 5. In response, defendant Knowles asked Meja to confirm, by answering in either the affirmative or the negative, if he initially identified plaintiff as the individual who sold him drugs, to which Meja answered in the affirmative. Id.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "In reaching this determination, the court must assess whether there are any material factual issues to be tried while resolving ambiguities and drawing reasonable inferences against the moving party, and must give extra latitude to a pro se plaintiff." Thomas v. Irvin, 981 F.Supp. 794, 799 (W.D.N.Y.1997) (internal citations omitted).
A fact is "material" only if it has some effect on the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir.1998). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248; see Bryant v. Maffucci, 923 F.2d 979 (2d Cir. 1991), cert. denied, 502 U.S. 849, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991).
Once the moving party has met its burden of "demonstrating the absence of a genuine issue of material fact, the nonmoving party must come forward with enough evidence to support a jury verdict in its favor, and the motion will not be defeated merely upon a `metaphysical doubt' concerning the facts, or on the basis of conjecture or surmise." Bryant, 923 F.2d at 982. A party seeking to defeat a motion for summary judgment must do more than make broad factual allegations and invoke the appropriate statute. The non-moving party must also show, by affidavits or as otherwise provided in Rule 56 of the Federal Rules of Civil Procedure, that there are specific factual issues that can only be resolved at trial. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).
Pursuant to Fed.R.Civ.P. 56(e), affidavits in support of or in opposition to a motion for summary judgment "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Thus, affidavits "must be admissible themselves or must contain evidence that will be presented in an admissible form at trial." Santos v. Murdoch, 243 F.3d 681, 683 (2d Cir.2001), citing Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also H. Sand & Co. v. Airtemp Corp., 934 F.2d 450, 454-55 (2d Cir.1991) (hearsay testimony that would not be admissible if testified to at trial may not properly be set forth in an affidavit).
To prevail on a procedural due process claim under § 1983, a plaintiff must show that he possessed a protected property or liberty interest and that he was deprived of that interest without being afforded sufficient procedural safeguards. See Tellier v. Fields, 280 F.3d 69, 79-80 (2d Cir.2000) (liberty interest); Hynes v. Squillace, 143 F.3d 653, 658 (2d Cir.1998).
"A prisoner's liberty interest is implicated by prison discipline, such as SHU confinement, only if the discipline `imposes [an] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.'" Palmer v. Richards, 364 F.3d 60, 64 (2d Cir.2004) (quoting Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). In assessing whether the discipline imposed rises to this level, the Court of Appeals for the Second Circuit has directed the district courts to consider both the conditions of confinement and their duration, "since especially harsh conditions endured for a brief interval and somewhat harsh conditions endured for a prolonged interval might both be atypical." Id., quoting Sealey v. Giltner, 197 F.3d 578, 586 (2d Cir. 1999). In light of this standard, the Court of Appeals has "explicitly avoided a bright line rule that a certain period of SHU confinement automatically fails to implicate due process rights" and has "explicitly noted that SHU confinements of fewer than 101 days could constitute atypical and significant hardships if the conditions were more severe than the normal SHU conditions . . . or a more fully developed record showed that even relatively brief confinements under normal SHU conditions were, in fact, atypical." Palmer, 364 F.3d at 64-65.
Notwithstanding the foregoing, courts in this Circuit "generally require that the duration of confinement be at least 100 days" to be categorized as constituting an "atypical and significant hardship." Palmer v. Goss, No. 02 Civ 5804(HB), 2003 U.S. Dist. LEXIS 18103, 2003 WL 22327110 (S.D.N.Y. Oct. 10, 2003), aff'd, Palmer, 364 F.3d 60; Sims v. Artuz, 230 F.3d 14, 24 (2d Cir.2003) (vacating dismissal of, inter alia, procedural due process claims, stating, during little more than a 4½ month period, Sims was sentenced to SHU for a total of nearly 3½ years); Durran v. Selsky, 251 F.Supp.2d 1208, 1214 (W.D.N.Y.2003) (quoting Tookes v. Artuz, No. 00CIV4969, 2002 U.S. Dist. LEXIS 12540, 2002 WL 1484391 (S.D.N.Y. July 11, 2002)) ("[c]ourts in this Circuit routinely hold that an inmate's confinement in special housing for 101 days or less, absent additional egregious circumstances, does not implicate a liberty interest."); Colon v. Howard, 215 F.3d 227, 232 (2d Cir.2000) (instructing district courts to develop detailed factual records "in cases challenging SHU confinements of durations within the range bracketed by 101 days and 305 days"). Here, following the Tier III disciplinary hearing, defendant Knowles imposed a penalty of 12 months of confinement in SHU and a loss of privileges between the period August 22, 2003 and August 22, 2004. Thus, there can be no dispute that plaintiff has demonstrated a protected liberty interest. The issue that remains and that which will be addressed below, is whether plaintiff was deprived of that protected liberty interest without due process. Defendants maintain that plaintiff was not. Dkt. # 21, p. 2; Dkt. # 22, p. 7.
Here, contrary to plaintiffs contention, he was afforded all of the procedural safeguards set forth in Wolff. Dkt. # 24, p. 4-5. Plaintiff was provided with a copy of defendant Noto's misbehavior report before the hearing, giving him advance notice of the charge against him.
Plaintiff contends, in particular, that his due process rights were violated because defendant Knowles was not an impartial hearing officer. See Dkt. # 1, p. 6-8. Plaintiff points to the following to support his allegation: (1) that defendant Knowles was involved in both the Tier III hearing and in the investigation into plaintiffs drug sale; (2) that defendant Knowles instructed Meja to respond affirmatively at the hearing that plaintiff had sold Meja drugs although Meja testified at the hearing that he did not know plaintiff; and (3) that defendant Knowles rejected his alibi and confused the time of the drug sale at issue. Dkt. # 1, pp. 28, 39; Dkt. # 24, p. 6.
Indeed, as plaintiff correctly contends, "[a]n inmate subject to a disciplinary hearing is entitled to an impartial hearing officer." Allen v. Cuomo, 100 F.3d 253, 259 (2d Cir.1996); see Wolff, 418 U.S. at 570-71; Russell v. Selsky, 35 F.3d 55, 59 (2d Cir. 1994). An impartial hearing officer "is one who, inter alia, does not prejudge the evidence and who cannot say . . . how he would assess evidence he has not yet seen." Patterson v. Coughlin, 905 F.2d 564, 569-70 (2d Cir.1990); Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir. 1989) ("it would be improper for prison officials to decide the disposition of a case before it was heard").
In this case, there is ample evidence to support defendant Knowles' guilty finding: defendant Noto's misbehavior report and his testimony that Meja originally identified plaintiff as the individual who sold him drugs; and the testimony of the confidential informant(s), which was considered outside the presence of plaintiff. Dkt. # 21, pp. 8-9.
Notably, plaintiffs only defense at the Tier III hearing was that he had been at an NOI/Black studies program at the time of the drug sale, which took place allegedly between 7:00-8:00 p.m. Dkt. # 21, p. 7. However, inmates Ford and Williams could not verify plaintiffs alibi defense. Id. Because plaintiff did not sign back into his cell area until 8:10 p.m., defendant Knowles determined that there was ample time for plaintiff to sell the drugs in the yard during the period of his unexplained absence. Dkt. # 21, pp. 7, 16-18.
Plaintiff further contends that defendant Knowles violated his constitutional right to due process by failing to adhere to the state guidelines for conducting prison disciplinary hearings (set forth in Title 7 of the NYCRR §§ 253.1(b), 254.1
This argument fails because violations of state law that do not deprive the plaintiff of a right "secured by the Constitution and laws" are insufficient to support a claim under § 1983. See Baker v. McCollan, 443 U.S. 137, 139-40, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979); Shakur v. Selsky, 391 F.3d 106, 119 (2d Cir.2004); Blouin v. Spitzer, 356 F.3d 348, 362 (2d Cir.2004). State procedural protections do not give rise to substantive federal rights. See Olim v. Wakinekona, 461 U.S. 238, 249-50, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983); Holcomb v. Lykens, 337 F.3d 217, 224 (2d Cir.2003) ("[S]tate statutes do not create federally protected due process entitlements to specific state-mandated procedures."). Moreover, "[s]tate procedures designed to protect substantive liberty interests entitled to protection under the federal constitution do not themselves give rise to additional substantive liberty interests." Blouin, 356 F.3d at 363. It is "federal law, not state regulations, [that] determines the procedures necessary to protect that liberty interest." Id. (citing Watson v. City of New York, 92 F.3d 31, 38 (2d Cir.1996)). Therefore, "the only relevant inquiry was whether the constitutional [procedures] were met, not whether state procedures were followed." Shakur, 391 F.3d at 119 (citing Holcomb, 337 F.3d at 224). As set forth above, plaintiffs constitutional rights were not violated during the Tier III hearing. Plaintiffs exclusive reliance on defendants' alleged violations of 7 NYCRR §§ 253.1(b) and 254.1 is insufficient to support his claim under § 1983. See Shakur, 391 F.3d at 119; Holcomb, 337 F.3d at 224; Ramsey v. Goord, 661 F.Supp.2d 370, 391-92 (W.D.N.Y.2009).
Plaintiff alleges that, in retaliation for attending a Nation of Islam ("NOI")/Black Studies course and/or for his affiliation therewith, defendant Noto filed a false misbehavior report and gave false testimony and that defendant Knowles found him guilty. Dkt. # 1, p. 43.
"In order to establish a claim of retaliation for the exercise of a constitutional right, plaintiff must show first, that he engaged in constitutionally protected conduct, and second, that the conduct was a substantial motivating factor for `adverse action' taken against him by defendants." Bennett v. Goord, 343 F.3d 133, 137 (2d Cir.2003) (citing Gayle v. Gonyea, 313 F.3d 677 (2d Cir.2002); see also Hendricks v. Coughlin, 114 F.3d 390 (2d Cir. 1997)). Third, the plaintiff must establish a causal connection between the protected speech and the adverse action. Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir.2004) (citing Dawes v. Walker, 239 F.3d 489, 491 (2d Cir.2001), overruled on other grounds, Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)).
The Second Circuit has defined "adverse action" in the prison context as "retaliatory conduct `that would deter a similarly situated individual of ordinary firmness from exercising . . . constitutional rights.'" Gill v. Pidlypchak, 389 F.3d at 381 (quoting Davis v. Goord, 320 F.3d 346, 353 (2d Cir.2003), superseded by 2003 U.S.App. LEXIS 13030, 2003 WL 360053 (2d Cir. Feb. 10, 2003)) (omission in the original). This objective test applies even if the plaintiff was not himself subjectively deterred from exercising his rights. Id.
The court must keep in mind that claims of retaliation are "easily fabricated" and "pose a substantial risk of unwarranted judicial intrusion into matters of general prison administration." Bennett, 343 F.3d at 137 (citing Dawes, 239 F.3d at 491). Accordingly, plaintiff must set forth non-conclusory allegations. Id. Finally, even if plaintiff makes the appropriate showing, defendants may avoid liability if they demonstrate that they would have taken the adverse action even in the absence of the protected conduct. Id.
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, as long as the prisoner is provided with procedural due process. Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir.1986). However, if a defendant initiated disciplinary proceedings against plaintiff in retaliation for his exercise of a constitutionally protected right, substantive due process rights are implicated even if the plaintiff did receive full procedural due process. Franco v. Kelly, 854 F.2d 584, 588-89 (2d Cir.1988). Any adverse action taken by defendant in retaliation for the exercise of a constitutional right, even if not unconstitutional in itself, states a viable constitutional claim. Id.
Assuming, arguendo, that plaintiff could show that the disciplinary actions were motivated by retaliatory animus (an assumption that has no basis in the record before this Court), plaintiffs retaliation claims would fail because defendants can easily show that they would have taken the same disciplinary actions even in the absence of the protected conduct. See Davidson v. Chestnut, 193 F.3d at 149 ("At the summary judgment stage, if the undisputed facts demonstrate that the challenged action clearly would have been taken on a valid basis alone, defendants should prevail."). The record shows that there was sufficient evidence, based on defendant Noto's investigation, to have charged plaintiff with a drug sale. Further, there was ample evidence at the Tier III disciplinary hearing for defendant Knowles to find plaintiff guilty of the drug sale charge. This is so particularly in the context of prison administration where courts must be cautious to recognize that prison officials have broad administrative and discretionary authority over the institutions they manage. Lowrance v. Achtyl, 20 F.3d 529, 535 (2d Cir. 1994).
Accordingly, defendants' motion for summary judgment on plaintiffs claim of retaliation is granted.
For the foregoing reasons, defendants' motion for summary judgment is granted. Dkt. # 18. The Clerk of the Court is directed to enter judgment in favor of the defendants.
The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a) (3), that any appeal from this Order would not be taken in good faith, and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). Further requests to proceed on appeal as a poor person should be directed, on motion, to the United States Court of Appeals for the Second Circuit, in accordance with Rule 24 of the Federal Rules of Appellate Procedure.
Escon Caimite, 01-A-2313, Greene Correctional Facility, P.O. Box 975, Coxsackie, New York 12051, Plaintiff pro se
Attorney General for the State of New York The Capitol, Albany, New York 12224, Attorney for defendants, OF COUNSEL: MATTHEW P. REED, ESQ., Assistant Attorney General
Christian F. Hummel, U.S. Magistrate Judge
The facts are reviewed in the light most favorable to plaintiff as the non-moving party.
On November 13, 2015, non-party Corrections Officer ("C.O.") Doan issued plaintiff a misbehavior report charging him with assault on an inmate (100.10), violent conduct (104.11), fighting (100.13) and refusing a direct order (106.10). Compl. ¶ 15; Dkt. No. 19-1 ("Def. Mem. of Law") at 3. In the misbehavior report, C.O. Doan stated that he had observed plaintiff making a stabbing motion at inmate Nesmith, throw a weapon onto the ground, and instigate a fist fight.
On November 19, 2015, Hearing Officer ("H.O.") Corbett commenced a Tier III disciplinary hearing concerning plaintiff's two misbehavior reports. Compl. ¶ 18; Def. Mem. at 4. Plaintiff requested inmate Nesmith as a witness, but his hearing assistant informed him that inmate Nesmith refused to testify. Compl. ¶ 19; Def. Mem. of Law at 4. At the start of the hearing, plaintiff informed H.O. Corbett that he never received a witness refusal form, and that he was not told the reason inmate Nesmith refused to testify.
On January 7, 2016, non-party C.O. Gebo issued plaintiff a misbehavior report charging him with possession of contraband (113.23), possession of marijuana (113.25), and smuggling (114.10). Compl. ¶¶ 27, 30; Def. Mem. of Law at 5. In the misbehavior report, CO. Gebo alleged that an x-ray of plaintiff's rectum showed an unidentified foreign object, that was later revealed to be 0.8 grams of marijuana. Compl. ¶¶ 28, 29; Def. Mem. of Law at 5. Soon after, plaintiff transferred to Southport Correctional Facility ("Southport"). Compl. ¶ 30; Def. Mem. of Law at 5. On January 28, 2016, H.O. Esgrow commenced a Tier III disciplinary hearing concerning the January 7, 2016 incident at Great Meadows. Compl. ¶ 31; Def. Mem. of Law at 5. At the hearing, plaintiff objected to the "unlawful strip frisk" that proceeded the finding of the unidentified foreign object, as he believed probable cause was never corroborated by reviewing the hospital log book, the SHU log book, or by Physicians Assistant ("P.A.") Nesmith.
Form 2176, Witness Interview Notice, states that six witnesses were called at the February 25, 2016 disciplinary hearing. Def. Mem. of Law at 5.
Under Rule 12 (b)(6), a defendant may move to dismiss a complaint for a plaintiff's "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). When considering such a motion, a court must "construe plaintiff['s] complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in plaintiff['s] favor."
Accordingly, to survive a motion to dismiss, a complaint must state a claim for relief that is "`plausible on its face.'"
Where, as here, a party seeks judgment against a
The Due Process Clause of the Fourteenth Amendment states: "[n]o State shall . . . deprive any person of life, liberty, or property without due process of law." U.S. CONST. amend. XIV § 1. To state a prima facie due process claim, "a plaintiff must establish (1) that he possessed a liberty interest and (2) that the defendant(s) deprived him of that interest as a result of insufficient process."
An inmate has a protected liberty interest in being free from segregated confinement but only where the alleged deprivation imposed amounts to an "atypical and significant hardship in relation to the ordinary incidents of prison life."
Although inmates retain their constitutional right to due process protections, "[p]rison disciplinary proceedings are not part of a criminal prosecution, and the fully panoply of rights due a defendant in such proceedings does not apply."
Plaintiff's due process claims center on his inability to call witnesses at the November 2015 disciplinary hearing presided over by H.O. Corbett at Great Meadow and the February 2016 disciplinary hearing presided over by H.O. Esgrow at Southport.
Here, plaintiff admits in his pleadings that both his nonparty hearing assistant and H.O. Corbett informed him that inmate Nesmith refused to testify. Compl. ¶ 19. When plaintiff continued to request inmate Nesmith as a witness, H.O. Corbett informed him that "he could not force an inmate to testify as a witness."
Moreover, although plaintiff indicates that H.O. Corbett failed to provide him with a witness refusal form and seems to suggest that such form must be provided to an inmate at his or her disciplinary hearing,
The undersigned notes that the only claim against Director Venettozzi is that he upheld C.O. Corbett's disciplinary determination on appeal "when there were clear violations of [plaintiff's] right to call witnesses," and then administratively reversed that determination after plaintiff had served his time. Compl. ¶¶ 26, 44. As the undersigned recommends dismissal of plaintiff's due process claim against H.O. Corbett because he fails to establish a constitutional violation, it is similarly recommended that plaintiff's due process claim against Director Venettozzi be dismissed.
As to the February 2016 disciplinary hearing at Southport, plaintiff contends that his constitutional rights were violated when C.O. Esgrow prevented him from calling certain witnesses.
Defendants have proffered Form 2176 entitled Witness Interview Notice concerning plaintiff's February 2016 disciplinary hearing.
The Second Circuit has held that it is the prison official's burden to establish the rationality of declining an inmate's witness request.
However, as to H.O. Esgrow's denial of J. Webster, there is no indication in the pleadings that H.O. Esgrow offered "some explanation" as to why he denied the witness, as is required under the Fourteenth Amendment.
The undersigned notes that the only claim against Acting Director Rodriguez is that he upheld C.O. Esgrow's disciplinary determination on appeal "when there were clear violations of [plaintiff's] right to call witnesses," and then administratively reversed that determination after plaintiff had served his time. Compl. ¶¶ 40-41, 44. "In general, the mere fact that a supervisory official affirmed the result of a disciplinary hearing will not suffice to establish that official's personal involvement in an alleged constitutional violation, which is a prerequisite to liability under § 1983."
"The Constitution does not mandate comfortable prisons but neither does it permit inhumane ones, and it is now settled that the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment."
The objective prong of the test can be satisfied where the plaintiff pleads "conditions [that] either alone or in combination, pose an unreasonable risk of serious damage to [the plaintiff's] health[.]"
Here, plaintiff contends that he was confined in SHU for twenty-three hours a day with visitation restrictions and without access to educational and work programs, telephone, or commissary. Compl. ¶ 42. The undersigned finds that plaintiff's complaint fails to raise facts plausibly suggesting that defendants subjected him to conditions that were sufficiently serious for the purposes of the Eighth Amendment. Plaintiff has failed to allege any deprivations of a single, identifiable human need.
As plaintiff has failed to adequately plead an Eighth Amendment conditions of confinement claim, it is recommended that defendants' motion on this ground be granted.
Plaintiff contends that defendants violated his right to be free from cruel and unusual punishment under Article I, § 5 of the New York State Constitution.
The undersigned recommends dismissal of plaintiff's state law claim concerning cruel and unusual punishment in light of the recommendation of dismissal of the federal Eighth Amendment claim pertaining to the same set of facts.
Even if the underlying federal cause of action survived, plaintiff's state law claim is still subject to New York Correction Law § 24. Pursuant to Correction Law § 24(1):
N.Y. CORR. LAW § 24(1). Courts look at the following factors to determine whether a defendant's action is within the scope of employment:
The test to determine whether the defendants' actions fall within the scope of their employment is "whether the act was done while the servant was doing his master's work no matter how irregularly, or with what disregard of the instructions."
(1) Insofar as it seeks dismissal of plaintiff's Fourteenth Amendment due process claim against H.O. Corbett and Director Venettozzi;
(2) Insofar as it seeks dismissal of plaintiff's Eighth Amendment conditions of confinement claim against H.O. Corbett, H.O. Esgrow, Director Venettozzi, and Acting Director Rodriguez;
(3) Insofar as it seeks dismissal of plaintiff's state law claims, the motion be
(1) Insofar as it seeks dismissal of plaintiff's Fourteenth Amendment due process claim against H.O. Esgrow and Acting Director Rodriguez, the motion be
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.
FOR PLAINTIFF: ECSON CAIMITE, Plaintiff Pro Se, 01-A-2313, Greene Correctional Facility, P.O. Box 975, Coxsackie, New York 12051.
FOR DEFENDANTS: HON. BARBARA D. UNDERWOOD, OF COUNSEL: MATTHEW P. REED, Assistant Attorney General, New York Attorney General, The Capitol, Albany, NY 12224.
Gary L. Sharpe, U.S. District Judge
No objections having been filed, and the court having reviewed the Report-Recommendation and Order for clear error, it is hereby
FOR PLAINTIFF: RONNIE COLE, Pro Se, 91-A-9212, Five Points Correctional Facility, Caller Box 119, Romulus, NY 14541.
FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN, New York State Attorney General, 615 Erie Boulevard West, Suite 102, OF COUNSEL: KEVIN M. HAYDEN, ESQ., Ass't Attorney General, Syracuse, NY 13204-2465.
DAVID E. PEEBLES, CHIEF U.S. MAGISTRATE JUDGE
Currently pending before the court is a motion filed by defendants requesting the entry of summary judgment dismissing plaintiff's claims on a variety of grounds. For the reasons set forth below, I recommend that defendants' motion for summary judgment be granted in part, but otherwise denied.
Plaintiff is a prison inmate currently being held in the custody of the DOCCS at the Five Points Correctional Facility ("Five Points"). Dkt. No.
On October 29, 2013, defendant Corrections Officer Anthony M. Durante entered plaintiffs room to conduct a strip frisk of plaintiff and a search of his area. Dkt. No. 29-1 at 15.
Plaintiff also alleges that on or around December 16, 2013, he was assaulted in a room in the A-Wing at Walsh. Dkt. No. 45-3 at 125-26. Plaintiff claims that three officers "waterboarded" him while defendant Lieutenant Timothy Michaels was present.
On October 29, 2013, shortly after the use of force incident, plaintiff attempted to hang himself. Dkt. No. 45-15 at 3;
On November 1, 2013, defendant Deputy Superintendent Amy A. Tousignant issued a property deprivation order depriving plaintiff of "all property."
It is at this point that the parties' versions of the relevant events again diverge. Defendants maintain that while on watch, plaintiff received a mattress, a clean urine bag, and was able to shower.
On October 31, 2013, plaintiff was examined by defendant Dr. Raja Mara for complaints of pain in his left eye. Dkt. No. 46 at 1. Dr. Mara's findings were benign for a left eye injury. Id. Plaintiff took his prescribed medications on that date and the following day, spoke with personnel from the Office of Mental Health, and was removed from the watch.
Plaintiff counters by claiming that Dr. Mara did not examine him on November 5, 2013, and that he was not informed that he had an appointment with an audiologist or Nurse Dutch.
On December 17, 2013, plaintiff was examined by an audiologist based upon a referral from Dr. Mara and defendant Facility Health Service Director Yogendra Sharma. Dkt. No. 45-15 at 11; Dkt. No. 46 at 106; Dkt.
Plaintiff was transferred, with a wheelchair, to Upstate on December 19, 2013.
Plaintiff maintains that he was physically unable to pull at his catheter because he was in full restraints with waist chains and leg irons. Dkt.
On December 24, 2013, plaintiff was transferred from the Upstate infirmary to a cell, via wheelchair. Dkt. No. 46 at 97. A sick call response was prepared, directing that: (1) medications would be issued three times daily; (2) Ensure would be issued four time each day; (3) the catheter would be changed monthly; and (4) dressing supplies would be provided on a daily basis. Id. at 98. A medical permit was also issued for the plaintiff providing for (1) a single cell, bottom bunk; (2) braces for plaintiffs right and left leg; (3) bilateral hearing aids; (4) gauze; (5) a catheter and drainage bag, (6) jock strap; and (7) dentures. Id. at 14.
From January 1, 2014 through April 4, 2014, plaintiff repeatedly refused to accept his dressing supplies, meals, and medications. Dkt. No. 46 at 35, 41, 47, 49, 55-56, 67, 71, 123-130, 132, 133, 134, 136, 139, 140, 142-147, 153-156, 158, 159, 161;
On January 2, 2014, plaintiff was examined by Defendant Dr. G. Schroyer, and was diagnosed with neurodermatitis. Dkt. No. 46 at 68, 70. Dr. Schroyer prescribed two rolls of cling wrap for each extremity and a tubular retainer. Id. Dr. Schroyer also examined plaintiffs scrotum and noted that it was "intact with [a] thin layer of skin." Id. at 68. Plaintiff was directed to apply ointment daily and use a jock strap, "to be changed as needed." Id. Dr. Schroyer also ordered plaintiffs catheter to be changed monthly. Dkt. No. 46 at 68. Defendants contend that plaintiff refused all medications and dressings. Dkt. No. 45-15 at 12. Plaintiff claims that he did not receive the supplies or medications.
On January 6, 2014, plaintiff was transported to the nurses' office for a catheter change. Dkt. No. 46 at 62. When plaintiff saw the catheter that the nurse intended to use, he stated, "I can't use that kind, it'll give me an infection." Id. The nurse called the pharmacy technician to request a clear catheter, and was advised that one would need to be located. Id. Plaintiff refused the catheter change and said he would wait for a new one to arrive. Id. The nurse told plaintiff to apply ointment to the area under his scrotum. Dkt. No. 46 at 62. The notations in plaintiffs records indicate that two packets of ointment were issued, although plaintiff claims that he never received the ointment. Dkt. No. 46 at 62;
Plaintiff was scheduled for physical therapy consultations on January 8, 2014 and February 10, 2014. Dkt. No. 46 at 103, 108. The therapist noted, however, that plaintiff refused to attend on those dates. Id. Plaintiff claims that security issues prevented his attendance.
On January 14, 2014, plaintiff submitted a request for a reasonable accommodation. Dkt. No. 46 at 12. In it he asked for a wheelchair that "fits" with a cushioned seat and a shower chair. Id. On January 23, 2014, Dr. Schroyer denied plaintiffs request for a new wheelchair, noting that "current wheelchair meets pts needs." Id. at 12.
Defendant Nurse Practitioner Mary Kowalachuk ("Kowalachuk") diagnosed plaintiff on February 4, 2014, with atopic dermatitis. Dkt. No. 46 at 42. On March 4, 2014, Kowalachuk attempted to change plaintiffs catheter. Id. at 34. While plaintiff was advised that he must be on the examination table for the nurse to perform the procedure, he refused to stand from his wheelchair. Id.
Defendant Facility Health Service Director V. Mandalaywala sent plaintiff to Alice Hyde Medical Center on March 22, 2014, after plaintiff accidentally pulled out his catheter while attempting to transfer from his wheelchair to the shower. Dkt. No. 46 at 76-84. Plaintiff was transported to the hospital for a procedure to reinsert his catheter. Id. at 32, 76-84. The procedure was successful and plaintiff returned to Upstate. Id.
On April 7, 2014, plaintiff was transferred to Five Points. Dkt. No. 46 at 30.
On November 1, 2013, plaintiff was issued a misbehavior report charging him with assault on staff, engaging in violent conduct, refusing a direct order, and failure to comply with a frisk search.
Plaintiff appealed the disciplinary determination on November 20, 2013. Id. at 27-32. Defendant Director of Special Housing Albert Prack modified plaintiffs sentence on January 14, 2014.
As a result of the misbehavior report and two hearings, plaintiff remained in disciplinary SHU confinement for a total of 170 days. Dkt. No. 29 ¶28.
Plaintiff commenced this action with the filing of a complaint, accompanied by an application for leave to proceed in forma pauperis ("IFP"), on May 8, 2014. Dkt. Nos. 1, 2. Following an initial review of the complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A, District Judge Mae A. D'Agostino issued an order granting plaintiffs IFP application and approving the filing of his complaint subject to dismissal of claims that arose under the Americans With Disabilities Act, as amended ("ADA"), 42 U.S.C. § 12,101 et seq., and claims for money damages pursuant to 42 U.S.C. § 1983 against the DOCCS and the defendants in their official capacities. See generally
On November 13, 2015, following the close of discovery, defendants moved for the entry of summary judgment seeking dismissal of the complaint on multiple grounds, including (1) failure to exhaust administrative remedies with respect to Eighth Amendment claims against defendants LoRusso and Michaels; (2) the absence of any evidence from which a reasonable factfinder could conclude that plaintiff sustained anything other than de minimis injuries as a result of the October 29, 2013 incident; (3) the lack of record evidence to give rise to a genuine dispute of material fact regarding whether defendants were deliberately indifferent to plaintiffs serious medical needs; (4) plaintiffs failure to demonstrate either the deprivation of a protected liberty interest or procedural due process associated with any such deprivation; (5) the lack of record evidence to give rise to a genuine dispute of material fact regarding whether defendants retaliated against plaintiff in violation of his First Amendment constitutional rights; (6) the lack of personal involvement of the supervisory defendants; (7) the failure to state a cause of action under the ADA; and (8) qualified immunity.
Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, the entry of summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material facts and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); 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.
When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences, in a light most favorable to the nonmoving party. 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").
As a procedural matter, defendants contend that plaintiff is precluded from judicial pursuit of his Eighth Amendment claims against defendants LoRusso and Michaels based upon his failure to comply with the exhaustion requirements of 42 U.S.C. § 1997e(a). Dkt. No. 45-16 at 16-18.
The Prison Litigation Reform Act of 1996 ("PLRA"), Pub.L. No. 104-134, 110 Stat. 1321 (1996), which imposes several restrictions on the ability of prisoners to maintain federal civil rights actions, expressly requires that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a); see also Woodford v. Ngo, 548 U.S. 81, 84 (2006) ("Exhaustion is . . . mandatory. Prisoners must now exhaust all `available' remedies[.]"); Hargrove v. Riley, No. 04-CV-4587, 2007 WL 389003, at *5-6 (E.D.N.Y. Jan. 31, 2007) ("The exhaustion requirement is a mandatory condition precedent to any suit challenging prison conditions, including suits brought under Section 1983.").
The failure of a prisoner to satisfy the PLRA's exhaustion requirement gives rise to an affirmative defense that must be affirmatively raised by a defendant in response to an inmate suit.
Despite the PLRA's mandate concerning exhaustion, there are circumstances under which the requirement can be excused. In its recent decision in Ross v. Blake, 136 S.Ct. 1850 (2016), the Supreme Court noted that the requirement hinges upon internal remedies being actually available to a plaintiff inmate Ross, 136 S.Ct. 1859. When internal administrative remedies are unavailable to an inmate, the PLRA's exhaustion requirement does not preclude commencement of an action. Id.
In Ross, the Supreme Court identified three circumstances in which a court could find that internal administrative remedies are not available. Under the first, "an administrative procedure is unavailable when (despite what regulations are guidance materials may promise) it operates as a simple dead end — with officers unable or consistently unwilling to provide any relief to aggrieved inmates." Ross, 136 S. Ct. at 1859. In addition, "an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use." Id. The Court explained that "[i]n this situation, some mechanism exists to provide relief, that no ordinary prisoner can discern or navigate it. Id. The Court went on to identify a third situation under which "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id. at 1860.
Since the Supreme Court's decision in Ross, the Second Circuit has weighed in on the issue in a case involving a district court's determination that a plaintiffs complaint should be dismissed for failure to exhaust remedies where the inmate claimed to have submitted a grievance concerning misconduct by corrections officers but received no response to the grievance, and took no further action with respect to it. Williams v. Priatno, F.3d ____, No. 14-1477, 2016 WL 3729383 (2d Cir. July 12, 2016). In Williams, plaintiff alleged that on December 31, 2012, while confined in the Downstate Correctional Facility ("Downstate"), his personal items were searched, his legal papers were confiscated, and he was assaulted by corrections officers. Id. at *2. Plaintiff claimed that on January 15, 2013, while still at Downstate and confined in an SHU cell, he drafted a grievance detailing the misconduct and gave it to a corrections officer to forward to the grievance office. Id. One week later, not having received a response to the grievance, the plaintiff inquired of the facility superintendent, who was making rounds in the SHU, concerning the grievance, and was told that the superintendent had no knowledge of the grievance but would look into it. Id. Shortly after that conversation, plaintiff was transferred into another facility. Plaintiff never received a response to the grievance, nor did he ever appeal to the superintendent and/or the CORC.
The initial burden of demonstrating non-exhaustion rests with the defendants. Once the defendants meet this burden, however, "it then becomes incumbent upon the plaintiff to counter with a showing of unavailability. . .". See, e.g., Murray v. Palmer, No. 03-CV-1010, 2010 WL 1235591, at *4 & n. 17 (N.D.N.Y. Mar. 31, 2010) (Suddaby, J.); see also Calloway v. Grimshaw, No. 09-CV-1354, 2011 WL 4345299, at *5 & n. 5 (N.D.N.Y. Aug. 10, 2011) (Lowe, M.J.) (citing cases), report and recommendation adopted by 2011 WL 4345296 (N.D.N.Y. Sept. 15, 2011) (McAvoy, J.); Cohn v. KeySpan Corp., 713 F.Supp.2d 143, 155 (E.D.N.Y. 2010) (finding that, in the employment discrimination context, the defendants bear the burden of establishing the affirmative defense of failure to timely exhaust his administrative remedies, but once defendants have done so, the plaintiff must plead and prove facts supporting equitable avoidance of the defense).
While acknowledging that plaintiff did file grievances generally addressing the October 2013 incident, defendant LoRusso maintains that the grievances fail to include or reference his claim that the officer used excessive force. Rather, defendant LoRusso contends that plaintiffs grievances against him related only to the destruction of property and, as such, do not suffice to meet the applicable exhaustion requirements. Dkt. No. 45-16 at 17.
Undeniably, there is no specific requirement within the IGP or otherwise that an inmate identify all persons alleged to be responsible for the acts giving rise to his or her constitutional claims. Espinal v. Goord, 558 F.3d 119, 126 (2d Cir. 2009). A grievance, however, must be sufficiently precise and illuminating in order to place defendants on notice of what, substantively, is claimed in order to permit a proper investigation. Johnson, 380 F.3d at 697 (quoting Strong v. David, 297 F.3d 646, 650 (2d Cir. 2002)).
In this instance, defendant LoRusso's argument lacks merit, as it overlooks both the fact that defendant LoRusso is named in plaintiffs grievances, and case law which firmly establishes that this alone does not necessarily provide a basis to conclude that a claim is unexhausted. See Brownell v. Krom, 446 F.3d 305, 311 n.1 (2d Cir. 2006). The undisputed record reveals that plaintiff filed several grievances related to the events that transpired at Walsh on October 29, 2013.
Defendants contend that plaintiff is barred from pursuing a claim based upon a "failure to protect" theory against defendant Michaels based upon Cole's failure to file a grievance relating to that claim. Dkt. No. 45-16 at 18. Plaintiff asks the court to excuse his failure to exhaust the available administrative remedies prior to commencing this action and including a failure to protect claim against defendant Michaels because (1) he forwarded a grievance to Upstate regarding the waterboarding incident but the grievance was returned with the explanation that plaintiff "needed to send the grievance to the facility responsible for the waterboard action," and (2) plaintiff sent a grievance to Walsh/Mohawk C.F. regarding the incident but did not receive a response. Dkt. No. 54-2 at 16-17.
As was previously noted, despite an inmate's entitlement in most instances to file and pursue a grievance in accordance with the IGP, there are circumstances under which the grievance procedure nonetheless is deemed not to have been available to an inmate plaintiff. See Ross, 136 S. Ct. at 1859-60. Thus, for example, exhaustion may be considered unavailable where the "plaintiff filed his initial grievance with the wrong facility, and he did not explicitly ask for additional time to file it properly," but the IGP Supervisor failed "to advise plaintiff of his ability to ask for an extension". Brooks v. Rock, No. 11-CV-1171 (GLS/ATB), 2014 WL 1292232, at *11 (N.D.N.Y. March 28, 2014).
When, as in this case, an inmate asserts that his or her resort to the grievance process was deterred, the question of whether a sufficient basis to negate a finding of "availability" has been established entails an objective inquiry, focusing upon whether "`a similarly situated individual of ordinary firmness' [would] have deemed them available." Hemphill, 380 F.3d at 688 (citing Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003)). In opposition to defendants' motion, plaintiff asserts that he attempted, twice, to file a grievance against defendant Michaels, but his grievances were rejected. The record contains a January 6, 2014 letter from plaintiff to Mr. J. Lovelace, Senior Investigator at the Office of the Inspector General. Dkt. No. 29-1 at 101. In that correspondence, plaintiff advises that he forwarded a letter on December 24, 2013 regarding "crimes committed against my person" on December 19, 2013 "before . . . administrative draft out." Id. at 101. In it, plaintiff refers to being "beat" and "drowning." Id. Plaintiff enclosed a grievance based upon the December 19, 2013 assault. Id. The record also contains a memorandum dated January 6, 2014 from the IGP Office informing plaintiff that Grievance No. UST 53210-14 related to harassment/misconduct was being investigated. Dkt. No. 29-1 at 100. The record, however, does not contain a copy of that grievance.
Based upon the record, this court cannot conclude that plaintiff did not properly submit a timely initial grievance regarding defendant Michaels' alleged violation of plaintiffs rights at Walsh, and that the IGP was available to him. Mindful that a court should not resolve credibility issues when deciding a motion for summary judgment, and that the defendants bear the ultimate burden of proving that plaintiff did not exhaust his administrative remedies, I conclude that there appears to be a material issue of fact as to whether plaintiff filed a timely initial grievance regarding his claim against defendant Michaels or whether his failure to do so should be excused under Ross.
A plaintiffs constitutional right against cruel and unusual punishment is violated by an "unnecessary and wanton infliction of pain." Whitley v. Albers, 475 U.S. 312, 319 (quotation marks omitted); Griffin v. Crippen, 193 F.3d 89, 91 (2d Cir. 1999). "A claim of cruel and unusual punishment in violation of the Eighth Amendment has two components-one subjective, focusing on the defendant's motive for his conduct, and the other objective, focusing on the conduct's effect." Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009) (citing Hudson v. McMillian, 503 U.S. 1, 7-8 (1992); Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999)). To satisfy the subjective requirement in an excessive force case, the plaintiff must demonstrate that "the defendant had the necessary level of culpability, shown by actions characterized by wantonness in light of the particular circumstances surrounding the challenged conduct." Wright, 554 F.3d at 268 (quotation marks omitted). This inquiry turns on "whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." Hudson, 503 U.S. at 6 (quotation marks omitted); accord, Blyden, 186 F.3d at 262. The Supreme Court has emphasized that the nature of the force applied is the "core judicial inquiry" in excessive force cases, rather than "whether a certain quantum of injury was sustained." Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam). Accordingly, when considering the subjective element of the governing Eighth Amendment test, a court must be mindful that the absence of serious injury, though relevant, does not necessarily negate a finding of wantonness.
"The objective component [of the excessive force analysis] . . . focuses on the harm done, in light of `contemporary standards of decency.'" Wright, 554 F.3d at 268 (quoting Hudson, 503 U.S. at 8); see also Blyden, 186 F.3d at 263 (finding the objective component "context specific, turning upon `contemporary standards of decency'"). In assessing this element, a court must ask whether the alleged wrongdoing is objectively harmful enough to establish a constitutional violation. Wilson v. Seiter, 501 U.S. 294, 303 (1991); accord Hudson, 503 U.S. at 8; see also Wright, 554 F.3d at 268. "But when prison officials use force to cause harm maliciously and sadistically, "contemporary standards of decency always are violated. This is true whether or not significant injury is evident.'" Wright, 554 F.3d at 268-69 (quoting Hudson, 503 U.S. at 9) (alterations omitted)). The extent of an inmate's injury is but one of the factors to be considered in determining whether a prison official's use of force was "unnecessary and wanton" because "injury and force . . . are imperfectly correlated[.]" Wilkins, 559 U.S. at 38. In addition, courts consider the need for force, whether the force was proportionate to the need, the threat reasonably perceived by the officials, and what, if anything, the officials did to limit their use of force. Hudson, 503 U.S. at 7; Whitley, 475 U.S. at 321; Romano, 998 F.2d at 105.
As was discussed earlier, an investigation was conducted regarding the incident, during which defendants LoRusso and Wagner provided statements. According to defendant LoRusso, he responded to plaintiffs room and "immediately grabbed Coles left arm with both hands and forced it to the small of his back despite much resistance from Cole. I then placed mechanical restraints on his left wrist and then assisted in rolling Cole on his left side." Dkt. No. 29-1 at 17. Additionally, defendant Wagner reported plaintiff did not comply with Durante's directives and that, "[f]orce had to be used to gain control of Inmate Cole." Dkt. No. 45-9 at 47. While defendants explain that the use of force was necessary because plaintiff refused to comply with their efforts to conduct a search and attacked him, plaintiff disputed their version of the events when he testified during his deposition that defendants used forced against him for reasons unrelated to restoring or maintaining discipline. Plaintiff testified that during an illegal cell search and strip search, defendants choked, kicked and punched him in the head, neck, face, legs, back and abdomen. Dkt. No. 45-3 at 32, 38, 40-43. He claims that the defendants pulled him out of his wheelchair, picked him up by his arms and "slammed" him to the ground on two occasions causing plaintiffs urine bag to break when he landed on his abdomen. Id. at 52-54. Plaintiff contends that the attack was in retaliation for filing grievances and lawsuits. Dkt. No. 45-3 at 25, 30, 50.
In further support of their motion, defendants also rely upon a surveillance video recording from Walsh.
Plaintiff claims that as a result of the incident he sustained two black eyes and suffered bruising, swelling, and pain in his face, back, abdomen and wrist. Dkt. No. 45-3 at 66, 68. Defendants argue that plaintiffs injuries were de minimis because the medical records associated with the treatment administered by Walsh personnel and the video recording do not support plaintiff's allegations concerning the extent of his injuries. See generally Dkt. No. 45-2. Defendants ignore the fact, however, that plaintiffs injuries are but one factor to consider in the excessive force analysis. See Wilkins, 559 U.S. at 38 (finding that the extent of an inmate's injuries is but one factor to consider in determining whether a defendant's use of force was "unnecessary and wanton" because "injury and force . . . are imperfectly correlated"). Although none of plaintiffs medical records reveal that he suffered anything but minimal injuries as a result of the alleged uses of force by the defendants, the dispositive inquiry is whether defendants used force in a malicious and sadistic manner, rather than in a good-faith effort to maintain or restore order. On a motion for summary judgment, where the record evidence could reasonably permit a rational factfinder to find that corrections officers used force maliciously and sadistically, dismissal of an excessive force claim is inappropriate. See Wright, 554 F.3d at 269 (reversing summary dismissal the plaintiffs complaint, though suggesting that prisoner's evidence of an Eighth Amendment violation was "thin" as to his claim that a corrections officer struck him in the head, neck, shoulder, wrist, abdomen, and groin, where the Amedical records after the . . . incident with [that officer] indicated only a slight injury") (citing Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003)).
In their motion defendants argue that plaintiff's claim against defendant Michaels for failing to protect him from harm at the hands of three unidentified corrections officers is subject to dismissal on the merits. A plaintiff asserting a failure to protect claim must prove that the defendant against whom the claim is asserted actually knew of and disregarded an excessive risk of harm to his health and safety. Hayes v. New York City Dept of Corrs., 84 F.3d 614, 620 (2d Cir. 1996). This "reckless disregard" to a plaintiffs health and safety can be proven by evidence establishing "a pervasive risk of harm to inmates . . . and a failure by prison officials to reasonably respond to that risk." Knowles v. N. Y. City Dep't of Corrs., 904 F.Supp. 217, 222 (S.D.N.Y. 1995) (quotation marks omitted). To establish liability on the part of a defendant under this theory, "the plaintiff must adduce evidence establishing that the officer had (1) a realistic opportunity to intervene and prevent the harm, (2) a reasonable person in the officer's position would know that the victim's constitutional rights were being violated, and (3) that officer does not take reasonable steps to intervene." Henry v. Dinelle, No. 10-CV-0456, 2011 WL 5975027, at *4 (N.D.N.Y. Nov. 29, 2011) (Suddaby, J.) (citing Jean-Laurent v. Wilkinson, 540 F.Supp.2d 501, 512 (S.D.N.Y. 2008)).
Plaintiff claims that three officers, who are not named as defendants in this action, "held" him in the "A-Wing holding closet" at Walsh and "play[ed] there [sic] game of water boarding."
In his complaint, plaintiff asserts claims addressed to the sufficiency of the medical care and treatment received by him at the relevant times. In their motion defendants also seek dismissal of this claim as a matter of law.
While the Eighth Amendment "`does not mandate comfortable prisons,' neither does it permit inhumane ones." Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 349, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)). "These elementary principles establish the government's obligation to provide medical care for those whom it is punishing by incarceration." Estelle v. Gamble, 429 U.S. 97, 102-03, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Failure to provide inmates with medical care, "[i]n the worst cases, . . . may actually produce physical torture or lingering death, [and] . . . [i]n less serious cases, . . . may result in pain and suffering no one suggests would serve any penological purpose." Id.
Salahuddin v. Goord, 467 F.3d 263, 279-80 (2d Cir. 2006) (citations omitted).
The second inquiry of the objective test requires a court to examine the seriousness of the inmate's medical condition if the plaintiff alleges a complete failure to provide treatment. Smith v. Carpenter, 316 F.3d 178, 185-86 (2d Cir. 2003). "Factors relevant to the seriousness of a medical condition include whether a reasonable doctor or patient would find it important and worthy of comment, whether the condition significantly affects an individual's daily activities, and whether it causes chronic and substantial pain." Salahuddin, 467 F.3d at 280 (quotation mark and alterations omitted).
If, on the other hand, a plaintiffs complaint alleges that treatment was provided but was inadequate, the second inquiry of the objective test is narrowly confined to that specific alleged inadequacy, rather than focusing upon the seriousness of the inmate's medical condition. Salahuddin, 467 F.3d at 280. "For example, if the prisoner is receiving ongoing treatment and the offending conduct is an unreasonable delay or interruption in that treatment, [the focus of the] inquiry [is] on the challenged delay or interruption in treatment, rather than the prisoner's underlying medical condition alone." Id. (quotations marks omitted).
To satisfy the subjective requirement, a plaintiff must demonstrate that the defendant had "the necessary level of culpability, shown by actions characterized by `wantonness.'" Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999). "In medical-treatment cases . . ., the official's state of mind need not reach the level of knowing and purposeful infliction of harm; it suffices if the plaintiff proves that the official acted with deliberate indifference to inmate health." Salahuddin, 467 F.3d at 280. "Deliberate indifference," in a constitutional sense, "requires that the charged official act or fail to act while actually aware of a substantial risk that serious inmate harm will result." Id. (citing Farmer, 511 U.S. at 837); see also Leach v. Dufrain, 103 F.Supp.2d 542, 546 (N.D.N.Y. 2000) (Kahn, J.); Waldo v. Goord, No. 97-CV-1385, 1998 WL 713809, at *2 (N.D.N.Y. Oct. 1, 1998) (Kahn, J., adopting report and recommendation by Homer, M.J.). "Deliberate indifference is a mental state equivalent to subjective recklessness, as the term is used in criminal law." Salahuddin, 467 F.3d at 280 (citing Farmer, 511 U.S. at 839-40).
Addressing the first objective element of the governing test, defendants argue that plaintiff has failed to establish that he suffered from any serious injury and contend that there is no evidence that plaintiff suffered from a MRSA infection while confined at Walsh or Upstate. Dkt. No. 45-16 at 15. Plaintiff's medical records, submitted in support of defendants' summary judgment motion, however, belie defendants' argument. Those records indicate that plaintiff attempted suicide, was positive for a MRSA infection suffered from asthma, urethral stricture, hearing loss, and neuropathy, and displayed an anti-social personality. Dkt. No. 46 at 99. Accordingly, a reasonable factfinder could conclude that plaintiff suffered from a serious medical need. See McCluskey v. Vincent, 505 Fed.Appx. 199, 202 (3d Cir. 2012) (holding that MRSA is a serious medical need); Miller v. Ramineni, No. 14-CV-1351(DNH/CFH), 2016 WL 1253684, at *4 (N.D.N.Y. Feb. 29, 2016), report and recommendation adopted, 2016 WL 1261125 (N.D.N.Y. Mar. 30, 2016) ("Several courts have concluded that MRSA constitutes a sufficiently serious medical condition.") (collecting cases); see also Zimmerman v. Burge, No. 06 CV 0176 (GLS/GHL), 2009 WL 9054936, at *6 (N.D.N.Y. April 20, 2009) (finding that objective element was satisfied because plaintiff attempted suicide and was diagnosed with depression).
Plaintiff claims that defendants Mara, Regional Medical Director Marshall Trabout, Dutch, Peterson, Health Care Assistant Joseph Henderson, and Nurse Administrator D. Williamson ignored his medical needs. In his deposition, plaintiff provided greater detail concerning this claim, testifying that defendants (1) refused to assess and treat his injuries after the excessive force incident; (2) failed to provide medication and medical supplies including Depends and urine bags; and (3) failed to repair his hearing aids.
The evidence before the court establishes that defendant Peterson examined plaintiff following the alleged assault, and documented her findings.
With regard to plaintiffs allegations related to his hearing aids, the record reveals that on December 17, 2013, he attended a consultative appointment with an audiologist and was advised that his left hearing aid was cracked and needed repair. Dkt. No. 46 at 106. Plaintiff refused to pay the cast of the needed repair. Id. The record does not contain any evidence related to plaintiffs right hearing aid, and specifically whether it was functional at that time. On December 30, 2013, plaintiff received new batteries for his hearing aids. Id. at 95. Even assuming that plaintiff was deprived of his hearing aids for any period of time, his claim is deficient based upon his failure to provide any evidence establishing that he was unable to function due to the deprivation. See Alster v. Goord, 745 F.Supp.2d 317, 334 (S.D.N.Y. 2010) (finding that the plaintiffs allegations related to uncomfortable or inadequate hearing aids failed to rise to the level of a constitutional violation) (citations omitted); see also Fate v. Goord, 2012 WL 3104884, at *7 (S.D.N.Y. July 31, 2012) (holding that the "short waiting period" before receiving hearing aids cannot be considered deliberate indifference).
In further support of his inadequate medical care claim, plaintiff recites facts related to the conditions of his cell. Plaintiff claims that the cell did not have a bed, his toilet was padlocked, he was denied meals, and he was forced to sleep on the floor. Dkt. No. 45-3 at 73-76. Even assuming these conditions existed, the evidence does not establish that plaintiffs medical conditions deteriorated due to those conditions. Moreover, this portion of his claim is also subject to dismissal since the record before the court does not establish that any named defendant was personally responsible for the conditions of plaintiffs cell, or that any named defendant possessed the authority to remedy those conditions. See Savage v. Brue, No. 05-CV-0857 (GLS/GHL), 2007 WL 3047110, at *12 (N.D.N.Y. Oct. 18, 2007) (holding that cell conditions were immaterial to Eighth Amendment medical claim because the complaint lacked allegations establishing that defendants were involved in decisions related to supplies or suggesting that the conditions contributed to plaintiffs serious medical condition).
The evidence now before the court also fails to disclose the precise involvement on the part of defendant D. Williamson in the alleged deprivation of treatment, and lacks factual assertions plausibly establishing that this defendant both knew of and disregarded an excessive risk to plaintiffs health or safety. Plaintiff vaguely testified that D. Williamson "failed to provide adequate medical care." Dkt. No. 45-3 at 183-84. This conclusory allegation is insufficient to establish defendant D. Williamson's role in the medical indifference alleged. See Schwartz v. Dennison, 518 F.Supp.2d 560, 573 n. 11 (S.D.N.Y. 2007) ("Plaintiffs complaint contained no allegations from which it can be inferred that defendants created, or allowed to continue, an unconstitutional policy."); Graham v. Poole, 476 F.Supp.2d 257, 261 (W.D.N.Y. 2007) ("Plaintiffs conclusory allegation that Poole failed to provide him with adequate medical care is also insufficient to state a claim.").
Plaintiff alleges that defendants Mandalaywala, Dr. Schroyer, Kowalachuk, Smith, Michaels, and Nurse M. Williamson were also deliberately indifferent to his serious medical needs, in violation of the Eighth Amendment. Specifically, plaintiff claims that those defendants (1) failed to treat his MRSA infection and wounds; (2) improperly discontinued medications; (3) confiscated plaintiffs wheelchair and denied his request for a suitable replacement; (4) attempted to provide a catheter that would have caused infection; and (5) failed to provide examinations or consultations with specialists.
Having carefully reviewed the record, I conclude that no reasonable factfinder could find that the Upstate medical defendants were deliberately indifferent to plaintiffs medical needs. Between December 2013 and April 2014, plaintiff was treated by prison medical staff on virtually a daily basis for a variety of ailments. Plaintiff received vitamins, dietary supplements, and various medications to treat his skin disorder, ulcer, overactive bladder, depression, and anxiety. Dkt. No. 46 at 35, 42, 51, 59, 64, 94-95. Plaintiff also received dressing supplies including gauze, sleeves, tubular dressing, Bacitracin and Clobetasol ointment. See generally Dkt. No. 46. Plaintiff was examined by Dr. Schroyer, as well as members of the nursing staff, and was referred to a hospital to have his catheter reinserted.
Addressing the discontinuance of medications, defendants explain that the decision to halt plaintiffs medications was based upon his non-compliance with staff directives and his continued refusal to accept medication. Plaintiff's deliberate indifference claims are undermined by his admission that he was not denied meals or medication, but rather, refused for fear it "would cause him more harm." Dkt. No. 54-2 at 10; see Mortimer Excell v. Fischer, No. 08-CV-0945 (DNH/RFT), 2009 WL 3111711, at *5 (N.D.N.Y. Sept. 24, 2009) (dismissing the plaintiffs Eighth Amendment claim because the plaintiff was provided with food but refused to eat it for fear that it was drugged). Even assuming that defendants acted improperly in discontinuing plaintiffs medication, at most the error constitutes negligence, which is not actionable under 1983. Johnson v. Connolly, No. 07-CV-0158 (LEK/GHL), 2008 WL 724167, at *5 (N.D.N.Y. March 17, 2008) (holding that allegations that medications were improperly discontinued amounts to negligence, not deliberate indifference).
In sum, the record lacks any facts demonstrating that defendants' conduct exposed plaintiff to an excessive risk of harm, or that his condition deteriorated because of the defendants' actions. Accordingly, no reasonable factfinder could conclude that the Upstate defendants were deliberately indifferent to plaintiffs medical needs. Plaintiffs medical indifference claim against the Upstate defendants is therefore also subject to dismissal as a matter of law.
Plaintiff claims that defendant Tousignant issued a deprivation order confiscating Cole's property, bed, braces and "anything in his cell" in violation of his Fourteenth Amendment rights.
In the prison context, it is will established that the alleged destruction or loss of a plaintiffs personal property will not support a claim redressable under § 1983, provided that adequate post-deprivation remedies are available. Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). The deprivation of property does not constitute a Fourteenth Amendment violation because New York provides an adequate post-deprivation remedy in the Court of Claims with respect to property claims by prisoners. Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996).
Here, plaintiff does not allege a destruction or loss of any personal property. Instead, he claims that he was temporarily deprived of access to his personal property and wheelchair. Even assuming the record supported plaintiffs allegations, there was an adequate post-deprivation remedy available to the plaintiff before the New York State Court of Claims. See Davis v. New York, 311 Fed.Appx. 397, 400 (2d Cir. 2009). Accordingly, I recommend dismissal of plaintiffs due process claims related to his deprivation of property.
Plaintiff claims that defendants Corey and Bullis deprived him of due process when presiding over his disciplinary hearings.
To successfully state a claim under 42 U.S.C. § 1983 for a denial of procedural due process, a plaintiff must show that he 1) possessed an actual liberty interest, and 2) was deprived of that interest without being afforded sufficient procedural safeguards. See Tellier v. Fields, 280 F.3d 69, 79-80 (2d Cir. 2000) (citations omitted); Hynes v. Squillace, 143 F.3d 653, 658 (2d Cir. 1998); Bedoya v. Coughlin, 91 F.3d 349, 351-52 (2d Cir. 1996).
Atypicality in a Sandin inquiry is normally a question of law.
As to the duration of the disciplinary segregation, restrictive confinement of less than 101 days, on its own, does not generally rise to the level of an atypical and significant hardship. Davis, 576 F.3d at 133. Accordingly, when the duration of restrictive confinement is less than 101 days, proof of "conditions more onerous than usual" is required. Davis, 576 F.3d at 133 (citing Colon, 215 F.3d at 232-33 n.5). In those circumstances the court must examine "the [actual] conditions of [the plaintiffs] confinement `in comparison to the hardships endured by prisoners in general population, as well as prisoners in administrative and protective confinement, assuming such confinements are imposed in the ordinary course of prison administration.'" Davis, 576 F.3d at 134 (quoting Welch v. Bartlett, 196 F.3d 389, 392-93 (2d Cir. 1999)). On the other hand, the Second Circuit has found that disciplinary segregation under ordinary conditions of more than 305 days rises to the level of atypicality. See Colon, 215 F.3d at 231 ("Confinement in normal SHU conditions for 305 days is in our judgment a sufficient departure from the ordinary incidents of prison life to require procedural due process protections under Sandin.").
Defendants concede that as a result of the two disciplinary hearings and determinations, plaintiff served 170 days of SHU disciplinary confinement, but allege that he was not deprived of a liberty interest because during that time, "he was offered daily medical attention and meals, which he claims to have refused to eat because he did not `trust it.'" Dkt. No. 45-16 at 24. The record confirms that plaintiff spent 170 days in an SHU setting. Dkt. No. 29. Because this period of disciplinary confinement falls between 101 and 305 days, in order to determine whether plaintiff suffered an atypical hardship, and therefore has been deprived a constitutional significant liberty interest, the court is required "to articulate specific findings of the conditions of the imposed confinement relative to the ordinary prison conditions[.]" Reynoso v. Selsky, 292 Fed.Appx. 120, 123 (2d Cir. 2008). While plaintiffs testimony from his deposition suggests that the conditions of his SHU confinement were extraordinary,
Plaintiff alleges that defendants Corey and Bullis violated his due process rights when they conducted hearings based upon a false misbehavior report. Dkt. No. 54-2 at 25. The mere allegation of the issuance of a false misbehavior report to an inmate is not cognizable under section 1983. See Boddie v. Schneider, 105 F.3d 857, 862 (2d Cir. 1997) ("[A] prison inmate has no general right to be free from being falsely accused in a misbehavior report."). Similarly, an inmate does not possess a due process right to be free from having a hearing officer rely upon an alleged false misbehavior report at a disciplinary hearing. Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986), cert. denied, 485 U.S. 982, 108 S.Ct. 1273 (1988) ("It is well established that in the absence of other aggravating factors, an inmate enjoys no constitutional right against the issuance of a false misbehavior report."). This general rule recognizes that an inmate's procedural due process rights are adequately safeguarded by the opportunity to challenge and present evidence to rebut the false accusations at a disciplinary hearing. Freeman, 808 F.2d at 953.
Defendants claim that the issue of whether plaintiffs due process rights were violated during the first hearing is a nullity due to the subsequent reversal of the resulting determination and commencement of a second hearing. Dkt. No. 45-16 at 25. In support of that position, they rely upon the Second Circuit's decisions in Horne v. Coughlin, 155 F.3d 26 (2d Cir. 1998). The underlying facts in Horne are strikingly similar to those in the case at bar. In that case, a first disciplinary hearing was conducted on December 19, 1984, resulting in a finding of guilt and a sentence of one year of SHU disciplinary confinement. Home, 155 F. 3d at 28. That determination was ultimately reversed in May 1985. Id. A second hearing was conducted on May 9, 1985. Id. At the conclusion of that hearing, plaintiff was again found guilty and sentenced to serve three hundred days in SHU confinement, although that penalty was administratively modified to six months of SHU confinement. Id. Plaintiff in that case was credited with all of the time served as a result of the first hearing, and was released thirteen days after the modification on May 28, 1985, after having served six months of SHU confinement, including the time spent as a result of the first hearing.
Even assuming arguendo that the plaintiffs first hearing was not rendered a nullity, for purposes of the plaintiffs procedural due process claims, I will address his substantive arguments. In connection with the first hearing, plaintiff claims that defendant Corey precluded him from questioning witnesses and improperly removed him from the first hearing. Dkt. No. 29 ¶103; Dkt. No. 54-2 at 26-27. Plaintiff argues that Hearing Officer Corey's failure to call an inmate, nurses, and Imam Muhammad violated his Fourteenth Amendment rights. Id. Plaintiff claims that Muhammad was present in his room after the assault, and would have offered testimony concerning his injuries. Dkt. No. 45-3 at 109-110.
Among the due process violations cited by plaintiff in support of his procedural due process claim with regard to the first hearing is a deprivation of his right to call witnesses. While the Fourteenth Amendment guarantees an inmate's right to call witnesses and present evidence in his defense before being deprived of a cognizable liberty interest, that right is not without bounds; the law requires only that an inmate be permitted to present witness testimony only where "permitting him [or her] to do so will not be unduly hazardous to institutional safety or correctional goals." Hill v. Selsky, 487 F.Supp.2d 340, 342 (W.D.N.Y. 2007) (citing Wolff, 418 U.S. at 566, 94 S.Ct. at 2979). "[A] prisoner's request for a witness can be denied on the basis of irrelevance or lack of necessity." Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 (2d Cir. 1991). "Prison officials may be required to explain, in a limited manner, the reason why witnesses were not allowed to testify." Ponte v. Real, 471 U.S. 491, 497 (1985). "The burden is not upon the inmate to prove the official's conduct was arbitrary and capricious, but upon the official to prove the rationality of his position." Fox v. Coughlin, 893 F.2d 475, 478 (2d Cir. 1990).
During the first hearing, defendant Corey permitted plaintiff to call defendants Peterson and Judway as witnesses. Dkt. No. 45-9 at 42. On November 20, 2013, defendant Corey completed the required Form 2176 with an explanation of his decision not to call RN Hart, RN Schram, and Imam Muhammad as witnesses. Dkt. No. 29-1 at 22. Corey noted that Hart, Schram, and Muhammad did not witness the alleged assault, and were not involved in the incident that precipitated the hearing. Id. The fact that plaintiff was not present to execute the witness interview form reflecting the hearing officer's denial of plaintiff's request to call those three witnesses does not give rise to a due process violation.
Plaintiff claims that defendant Corey improperly ordered his removal from the hearing. Dkt. No. 54-2 at 26. Defendants contend that even if the court determines plaintiffs Fourteenth Amendment rights were violated when excluded from the hearing, defendant Corey is entitled to qualified immunity. Dkt. No. 45-16 at 27.
The Second Circuit has not conclusively resolved whether an inmate has a due process right to be present at disciplinary proceedings, and district courts within the circuit have issued varying opinions regarding the issue. See Vogelfang v. Capra, 889 F.Supp.2d 489, 514 (S.D.N.Y. 2012) ("[T]his Court finds it to be an open question in the Second Circuit whether there is an independent right of a prisoner to be present at all times during a disciplinary hearing, or whether such a right to be present exists only insofar as it is required to enable the prisoner to exercise his or her rights to call witnesses or present documentary evidence."); Clark v. Dannheim, No. 02-CV-6525L, 2011 WL 2973687, at *1 (W.D.N.Y. July 21, 2011) (collecting cases) ("[W]here an inmate disrupts a hearing, a hearing officer has discretion to order the inmate removed, particularly if the prisoner has been warned that continued unruly behavior may result in his expulsion."); Mims v. Ufland, No. 07 CIV. 1926, 2008 WL 2986497, at *5 (S.D.N.Y. Aug. 1, 2008) (citations omitted) (holding that the limited right to be present at the hearing is not absolute, and can be waived if the inmate engages in disruptive conduct). In this district, courts have reasoned that the Supreme Court's decision in Wolff affords an inmate the limited right to be physically present at disciplinary hearings in order to exercise basic due process rights. Johnson v. Doling, No. 05 CV 376 (TJM/RFT), 2007 WL 3046701, at *8-9 (N.D.N.Y. Oct. 17, 2007) (citations omitted). That right is "necessarily be limited by penological interests;" however, the "per se denial of such right would undermine the requirement that disciplinary hearings be held `at a meaningful time and in a meaningful manner.'" Id. (citing, inter alia Wolff, 418 U.S. at 566 (stating "we must balance the inmate's interest . . . against the needs of the prison, and some amount of flexibility and accommodation is required")).
Defendants contend that plaintiff was removed from the hearing due to his "beligerent [sic] and disruptive" behavior. Dkt. No. 45-9 at 42-44. Plaintiff maintains that he was improperly removed from the hearing because defendant Corey "didn't like the questions I was asking." Dkt. No. 45-3 at 111. Plaintiff avers that he did not yell, or struggle but "conduct[ed] [himself] as they were conducting themselves." Id. at 112. While a hearing officer retains the right to remove a disruptive inmate based on safety concerns, see Ponte, 471 U.S. at 495, the evidence before the court does not conclusively establish that plaintiff was disruptive during the hearing. The transcript of that disciplinary hearing is not part of the record before this court. Accordingly, there are genuine issues of fact as to whether plaintiffs due process rights were violated when defendant Corey removed him from the disciplinary hearing. Having made that determination, I must turn to the issue of whether Corey is entitled to qualified immunity with respect to this claim.
The determination of whether a government official is immune from suit is informed by two factors. Doninger v. Niehoff, 642 F.3d 334, 345 (2d Cir. 2011). Specifically, the inquiry is informed by whether the facts alleged, taken in a light most favorable to the plaintiff, show that the conduct at issue violated a statutory or constitutional right, and if so, whether that right "was clearly established at the time of the challenged conduct." Terebesi v. Torreso, 764 F.3d 217, 230 (2d Cir. 2014) (citing Reichle, 132 S.Ct. at 2093). The Supreme Court has said that an officer's "conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2083 (2011) (quotation marks and alterations omitted). "To this end, a plaintiff need not show a case `directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.'" Terebesi, 764 F.3d at 230 (quoting al-Kidd, 131 S.Ct. at 2083). However, "[e]ven where the law is `clearly established' and the scope of an official's permissible conduct is `clearly defined,' the qualified immunity defense also protects an official if it was `objectively reasonable' for him at the time of the challenged action to believe his acts were lawful." Higazy v. Templeton, 505 F.3d 161, 169-70 (2d Cir. 2007) (citations omitted). This "objective reasonableness" part of the test is satisfied if "officers of reasonable competence could disagree on [the legality of the defendant's actions]." Malley v. Briggs, 475 U.S. 335, 341 (1986).
In this instance, even assuming plaintiff is able to establish a constitutional violation, I recommend a finding that defendant Corey is entitled to qualified immunity based upon my conclusion that it was objectively reasonable for him to believe that his conduct did not violate plaintiffs constitutional rights. As a threshold matter, at the time of the disciplinary hearing, "the contours" of the right, or limited right, of an inmate to be present at his disciplinary hearing were not clearly established. Webb v. Selsky, No. 01-CV-1495, 2008 WL 796179, at *7-8 (W.D.N.Y. Mar. 24, 2008). In any event, a person in defendant Corey's position could have reasonably concluded that excluding plaintiff from the hearing would not violate any clearly established constitutional right. Accordingly, I recommend a finding that defendant Corey is entitled to qualified immunity.
During his deposition, plaintiff claimed that defendant Bullis refused to allow him to question witnesses and denied him due process when the hearing officer called witnesses before plaintiff was brought into the room. Dkt. No. 45-3 at 114. Plaintiff does not identify the witnesses in question or provide any argument related to the substance of the testimony. "It is not a violation of due process at a disciplinary hearing to take the testimony of a witness outside the presence of an inmate." Kalwaskinski v. Morse, 201 F.3d 103, 109 (2d Cir. 1999) (citations omitted). "Nor does an inmate have a constitutional right of confrontation." Id. (citations omitted). Accordingly, I recommend that plaintiffs due process claims related to the second disciplinary hearing be dismissed
In their motion, defendants also seek dismissal of retaliation claims asserted by the plaintiff. When prison officials take adverse action against an inmate, motivated by the inmate's exercise of a constitutional right, including the free speech provisions of the First Amendment, a section 1983 retaliation claim may be sustained. See Friedl v. City of N. Y, 210 F.3d 79, 85 (2d Cir. 2000) ("In general, a section 1983 claim will lie where the government takes negative action against an individual because of his exercise of rights guaranteed by the Constitution or federal laws."). The Second Circuit has cautioned, however, that, because of "the case with which claims of retaliation may be fabricated, courts should examine prisoners' claims of retaliation with skepticism and particular care." Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995); accord, Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2013).
To establish a claim under section 1983 for unlawful retaliation, a plaintiff must prove that (1) he engaged in protected conduct, (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, 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 (1977); Dillon v. Morano, 497 F.3d 247, 251 (2d Cir. 2007). "[P]rison officials' conduct constitutes an `adverse action' when it would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights." Alicea v. Howell, 387 F.Supp.2d 227, 237 (W.D.N.Y. 2005) (quoting Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001)).
As to the first element of the plaintiff's retaliation claim, it is well settled that the filing of grievances and lawsuits constitutes protected activity for purposes of a First Amendment retaliation analysis. See Johnson v. Eggersdorf, 8 Fed.Appx. 140, 144 (2d Cir. 2001) ("It is undisputed that retaliation by prison officials against an inmate for the filing of a grievance can act as a deprivation of a constitutionally protected right."). Turning to the second element of the retaliation claim, plaintiff must establish that he suffered an adverse action. See ThaddeusX v. Blatter, 175 F.3d 378, 398 (6th Cir. 1999). To establish the requisite connection between protected speech and adverse action, in order to satisfy the third element, the plaintiff must prove that the protected conduct was a "substantial and motivating factor to the adverse action taken by prison officials." Bennett v. Goord, 343 F.3d at 133, 137 (2d Cir. 2003).
Plaintiff has asserted retaliation claims against defendants Durante, Wagner, LoRusso, Sharma, Trabout, Mara, J. Henderson, P. Henderson, Tousignant, M. Williamson, Smith, Kumar, Schroyer, Kowalachuk, and Corey. Defendants argue that plaintiff cannot support retaliation claims with the "speculative" assertion that those defendants were motivated, in general, by plaintiffs litigious behavior. Defendants contend that plaintiffs failure to cite to any specific grievances or complaints as the basis for his retaliation claim warrants an award of summary judgment. Dkt. No. 45-16 at 22-23.
Plaintiff alleges that defendant Durante used excessive force in retaliation for plaintiff filing grievances and a lawsuit. Dkt. No. 54-2 at 14. The record before the court contains evidence that plaintiff filed complaints in September 2010 and October 2010 related to threats, harassment, and assaults involving Durante. Dkt. No. 29-1 at 1. In September 2010, plaintiff filed a complaint in this district against "DOCS" and various employees related to his confinement at Mohawk C.F.
As to the second element of the plaintiff's retaliation claim, it is clear that "an assault by corrections officers is sufficient to `chill a person of ordinary firmness from continuing to engage in his First Amendment activity.'"
As it relates to defendant LoRusso, the record before the court does not contain any evidence that plaintiff filed a grievance against defendant LoRusso prior to the October 2013 incident, and LoRusso was not a named defendant in Cole I. For this report, I assume that plaintiff engaged in protected conduct, as it relates to defendant LoRusso, based upon the July 2012 letter to defendant Gonyea. What is lacking, however, are any allegations of fact that connect the letter and the October 2013 incident. Plaintiff cannot rely solely upon the temporal proximity of the complaint and the alleged acts of misconduct by defendant LoRusso to survive summary judgment. Temporal proximity alone is insufficient to carry plaintiffs burden of proof beyond the pleading stage. Ethier v. City of Cohoes, No. 02-CV-1584, 2006 WL 1007780, at *7 (N.D.N.Y. Apr. 18, 2006) (McAvoy, S.J.) (citing cases); Freeman v. Goord, No. 02 Civ. 9033, 2005 WL 3333465, at *7 (S.D.N.Y. Dec. 7, 2005). Moreover, the thirteen months that elapsed between the alleged protected conduct, in July 2012, and the October 2013 incident, without more is insufficient to support a finding of the requisite nexus. See, e.g., Nicastro v. N.Y. City Dept of Design & Constr., 125 Fed.Appx. 357, 358 (2d Cir. 2005) (concluding that the plaintiff could not, at the summary judgment stage, establish even a prima facie case of retaliation where the adverse employment action occurred "almost ten months after" the plaintiff engaged in protected conduct and there was no other evidence of causation); Figueroa v. Johnson, 109 F.Supp.3d 532, 552 (E.D.N.Y. 2015). Accordingly, I recommend that plaintiffs retaliation claim against defendant LoRusso be dismissed
Plaintiff also claims that defendants Sharma, Trabout, Mara, J. Henderson, P. Henderson, Tousignant, M. Williamson, Smith, Kumar, Schroyer, and Kowalachuk retaliated against him when they confiscated his wheelchair and hearing aids, refused to provide Depends, pajamas, or soap, failed to treat his MRSA infection, and were deliberately indifferent to his medical needs. Dkt. No. 29 at ¶105; Dkt. No. 45-3 at 174. Plaintiff asserts that their retaliatory conduct was motivated by plaintiffs prior grievances and lawsuit.
Based upon the record before the court, no reasonable factfinder could conclude that plaintiff suffered any significant adverse action. While, plaintiff was dissatisfied the medical treatment received from prison officials, the record establishes a willingness on defendants' part to respond to plaintiffs medical needs. Moreover, as was discussed in depth above, plaintiff was not denied adequate or timely medical attention. Under these circumstances plaintiff did not suffer any adverse action as a result of defendants' medical treatment and thus, as a matter of law, cannot sustain a retaliation claim based upon that treatment.
With regard to defendants Wagner and Corey, plaintiff has failed to adduce any facts indicating that he engaged in protected conduct as it relates to these two defendants. The grievances at issue did not involve these defendants, and plaintiff has failed to offer any facts indicating these defendants knew that he had engaged in protected conduct. Indeed, plaintiff testified that he never saw defendant Wagner before the day of the alleged assault, and never filed any grievance against defendants Corey or Wagner. Dkt. No. 45-3 at 48-49; 120-121.
Plaintiff claims that defendant Corey was aware of his prior grievances and complaints regarding harassment based upon his position as Deputy Superintendent of Security. This contention, however, is unsupported by the record or any competent evidence, and instead appears to be the product of sheer surmise on plaintiff's part. Because the record contains no evidence from which a reasonable factfinder could conclude that there exists a causal connection between plaintiffs grievances, complaints and lawsuit and adverse action by defendant Wagner or defendant Corey, I recommend that the court grant this portion of defendants' motion and dismiss plaintiffs retaliation cause of action as against these two defendants.
Plaintiff asserts claims against defendants Judway, Upstate Deputy Superintendent of Administration Sandra Danforth, Sharma, Gonyea, Prack, and DOCCS Acting Commissioner Anthony Annucci. Those claims appear to be based solely upon their supervisory positions and plaintiffs contention that those defendants were aware of ongoing constitutional violations and failed to prevent them from continuing. See, e.g. Dkt. No. 29 at ¶102; Dkt. No. 54-2 at 18-19; Dkt. No. 45-3 at 122, 159, 168, 170. Plaintiff also maintains that defendant Annucci failed to transfer him out of Walsh after plaintiff settled his prior lawsuit. Dkt. No. 54-2 at 12. Defendants argue that the record before the court fails to establish their involvement in any constitutional violations.
"Personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under [42 U.S.C.] 1983." Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citing Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)); McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977). As the Supreme Court has noted, a defendant may only be held accountable for his own actions under section 1983. See Ashcroft v. Iqbal, 556 U.S. 662, 683 (2009) ("[P]etitioners cannot be held liable unless they themselves acted on account of a constitutionally protected characteristic."). In order to prevail on a section 1983 cause of action against an individual, a plaintiff must show "a tangible connection between the acts of a defendant and the injuries suffered." Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). "To be sufficient before the law, a complaint must state precisely who did what and how such behavior is actionable under law." Hendrickson v. U.S. Attorney Gen., No. 91-CV-8135, 1994 WL 23069, at *3 (S.D.N.Y. Jan. 24, 1994).
In the face of defendants' summary judgment motion, in which they assert the insufficiency of plaintiffs allegations against the aforementioned supervisory defendants, plaintiff must offer evidence which would implicate their personal involvement in the constitutional violations.
Plaintiff claims that defendant Judway was personally involved in the use of force incident, and cites to Judway's testimony during the November 2013 disciplinary hearing as support for that allegation. Plaintiff maintains that Judway testified that he authorized defendants Durante and Wagner to "get Cole by any means necessary." Dkt. No. 45-3 at 66. Unfortunately, the record now before the court does not contain either a transcript from that hearing or an affidavit from defendant Judway. Though admittedly tenuous, assuming there was a constitutional violation related to the use of force incident, it is conceivable that a reasonable factfinder could credit plaintiff's claim and conclude that defendant Judway was personally involved. This could suffice to potentially support a finding of the requisite personal involvement on the part of defendant Judway to support a finding of liability against him. For this reason, I have recommended a finding that plaintiff has raised genuine questions of material fact regarding defendant Judway's personal involvement, sufficient to avoid summary judgment on this basis.
Plaintiff alleges that defendant Gonyea received notice that defendants Durante and LoRusso were threatening and harassing plaintiff in July 2012. Defendants' motion does not contain any declaration or affidavit from defendant Gonyea. Rather, defendants summarily state, without reference to the July 2012 letter, that Gonyea is being sued solely due to his position in the prison hierarchy. The court finds that defendants have failed to sustain their initial burden of proving that there are no material issues of fact with respect to Gonyea's personal involvement. Accordingly, I recommend defendants' motion with respect to defendant Gonyea be denied.
Plaintiffs claims against defendant Prack arise from the two disciplinary hearings conducted to address the November 1, 2013 misbehavior report, and his role in reviewing the resulting determinations. Plaintiff appealed the disciplinary determinations by defendants Corey and Bullis, and defendant Prack responded to those internal appeals. Dkt. No. 29-1 at 44, 59; Dkt. No. 45-13 at 10; Dkt. No. 54-2 at 18. With respect to the first disciplinary hearing, for the same reasons cited in support of my recommendation that plaintiffs claims against defendant Corey be dismissed, I also recommend dismissal of all claims against defendant rack arising out of that first disciplinary hearing. Turning to the second hearing, I have found no basis to conclude that the second hearing was conducted in a manner that failed to comport with due process. Accordingly, I recommend the court also grant defendants' motion with respect to plaintiffs due process claim asserted against Prack arising from the second hearing. See, e.g., Lopez v. Whitmore, No. 13-CV-0952 (BKS/ATB), 2015 WL 4394604, at *11 (July 16, 2015) (dismissing due process claim against defendant Prack "[b]ecause his only involvement in plaintiffs claims was to affirm the results of a disciplinary hearing that th[e] court . . . found comported with due process").
At his deposition, plaintiff testified that he is suing Acting Commissioner Annucci in this action for four reasons, alleging that Annucci (1) is at the top of the chain of command as Deputy Commissioner of DOCCS; (2) failed to investigate the alleged assault on plaintiff; (3) failed to respond to letters from plaintiff; and (4) failed to transfer plaintiff out of Walsh after becoming aware of the prior lawsuit. Dkt. No. 45-3 at 121-122; Dkt. No. 54-23 at 12.
With regard to the failure to transfer plaintiff, "[a] supervisor's failure to transfer a prisoner out of a facility may constitute deliberate indifference where the supervisor 1) knows that the conditions of confinement expose the prisoner to serious risk of harm, and 2) the supervisor has the authority to transfer the prisoner to another facility." Kane v. Pierce, No. 106-CV-01564, 2009 WL 189955, at *3 (E.D. Cal. Jan. 26, 2009), report and recommendation adopted, 2009 WL 674127 (E.D. Cal. Mar. 16, 2009) (citations omitted).
Plaintiffs claims against Annucci are based upon plaintiffs unsupported assumption that Annucci received plaintiffs letters. Dkt. No. 45-3 at 123 ("I wrote him several times. He would refer back to the facility. He did nothing."). Indeed, there is no record evidence, including any testimony from plaintiff, regarding where, when, or by what means plaintiff forwarded a letter or complaint directly to Annucci. In any event, even assuming that Annucci received plaintiffs letters, Annucci's failure to respond to them is not sufficient to give rise to personal involvement under section 1983. Parks v. Smith, No. 08-CV-0586 (TJM/GHL), 2011 WL 4055415, at *14 (N.D.N.Y. March 29, 2011) ("A prisoner's allegation that a supervisory official failed to respond to a grievance is insufficient to establish that official's personal involvement.").
For these reasons, I find that no reasonable factfinder could conclude, based on the record evidence, that defendant Annucci was personally involved in any of the allegations giving rise to this action.
Plaintiff claims that defendant Judway failed to adhere to DOCCS policy when he authorized a strip search of the plaintiff without preparing the appropriate paperwork.
To establish a violation under the ADA, a plaintiff must demonstrate that (1) he is a qualified individual with a disability; (2) the defendant is subject to the ADA; and (3) he was denied the opportunity to participate in or benefit from defendants' services, programs, or activities, or were otherwise discriminated against by defendants, by reason of a disability. Henrietta D., 331 F.3d at 272. The ADA defines a "disability" in part as a "physical or mental impairment that substantially limits one or more of the major life activities of such individual." 42 U.S.C. § 12102(A). A "qualified individual with a disability" is one "who, with or without reasonable modifications to rules, policies or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." 42 U.S.C. § 12131(2).
Plaintiff claims that his hearing impairment was diagnosed by prison officials and known to all defendants, and constitutes a disability. Dkt. No. 54-2 at 20;
Id. (internal citations omitted).
Issue preclusion, often referred to as collateral estoppel, bars a party that had a full and fair opportunity to litigate an issue of fact or law from relitigating the same issue once it has been decided against that party. Proctor v. LeClaire, 715 F.3d 402, 414 (2d Cir. 2013); McKithen v. Brown, 481 F.3d 89, 105 (2d Cir. 2007), cert denied, 552 U.S. 1179, 128 S.Ct. 1218, 170 L.Ed.2d 59 (2008). Issue preclusion applies when
Ball v. A. O. Smith Corp., 451 F.3d 66, 69 (2d Cir. 2006) (quotation marks omitted); accord, Proctor, 715 F.3d at 414; see also McKithen, 481 F.3d at 105.
The burdens applicable to the factors informing the issue of collateral estoppel are variously allocated. The party seeking to invoke issue preclusion bears the burden of demonstrating that the nature of the issues are identical, and "they were necessarily decided in the prior action." Kulak v. City of N.Y., 88 F.3d 63, 72 (2d Cir. 1996). The burden of demonstrating that the prior action did not afford a full and fair opportunity to litigate the issue, however, rests with the party opposing application of the doctrine. Kulak, 88 F.3d at 72. The determination of whether the previous action provided a full and fair opportunity to litigate requires consideration of several factors, including
Shell v. Brun, 362 F.Supp.2d 398, 400 (W.D.N.Y. 2005) (quoting Ryan v. N. Y. Tel. Co., 62 N.Y.2d 500, 501 (1984)).
From the record now before the court, it is clear that plaintiff raised the claim now being asserted in Cole II, and that the precise issue now presented — that is, whether his hearing loss constitutes a disability under the ADA — was decided against him. There is nothing to suggest that plaintiff was not afforded a full and fair opportunity to litigate that claim in the prior proceeding. Even though Cole II was brought against different defendants, because the Southern District concluded that plaintiff did not suffer from a hearing disability for the purposes of the ADA, that determination is entitled to full faith and precludes plaintiff from mounting a challenge in this court. See Garrett v. Angelone, 940 F.Supp. 933, 940-41 (w.D. Va. 1996) ("Because the factual issue of discrimination on the basis of handicap at Deep Meadow was litigated and decided by the Eastern District in the previous action, [the plaintiff] is estopped from rearguing this factual issue in any later litigation."). Moreover, there is nothing in the record to suggest that plaintiffs hearing loss has materially deteriorated. Indeed, in opposition to defendants' motion, plaintiff relies solely upon medical evidence from 2004 and 2009. Dkt. No. 29-1 at 79-81. Accordingly, I find no basis to disagree with the Southern District's determination, and on this basis I recommend granting defendants' motion for summary judgment dismissing plaintiffs ADA claims under the doctrine of collateral estoppel.
Plaintiff claims that defendants Mandalaywala, Kowalachuk, Smith, Schroyer, and Danforth were negligent when they failed to order "follow-up examinations" and provide plaintiff with treatment by a urologist. Dkt. No. 29 ¶106.
N.Y. Correct. Law § 24; see also lerardi v. Sysco, 119 F.3d 183, 186-87 (2d Cir. 1997). Section 24 thus precludes claims against corrections personnel brought against them in any court in their personal capacities arising out of the discharge of their duties. Baker v. Couglin, 77 F.3d 12, 14-15 (2d Cir. 1996). Because "a federal court applying pendent jurisdiction is forced to apply state substantive law to a state claim, this would result in inmates being prohibited from advancing such pendent claims along with their federal claims in federal court." O'Diah v. Fischer, No. 08-CV-0941, 2012 WL 987726, at *21 (N.D.N.Y. Feb. 28, 2012) (Homer, M.J.), report and recommendation adopted by 2012 WL 976033 (N.D.N.Y. Mar. 22, 2012) (McAvoy, J.). Additionally, because the New York State Court of Claims is one of "limited jurisdiction," hearing only claims against New York State, "[section] 24 amounts to a grant of immunity for corrections officers sued in their personal capacities for claims arising out of the discharge of their duties." Rucano v. Koenigsmann, No. 12-CV-0035, 2014 WL 1292281, at *15 (N.D.N.Y. Mar. 31, 2014) (D'Agostino, J.).
In 2009, the Supreme Court held that section 24 violates the Supremacy Clause to the extent it delegates to the New York State Court of Claims jurisdiction to adjudicate civil rights cases arising under section 1983. Haywood v. Drown, 556 U.S. 729, 734-36 (2009). While the Supreme Court concluded that section 24 violates the Supremacy Clause as it applies to claims brought under section 1983, it did not find the statute unconstitutional when applied to claims arising under New York State law. Accordingly, "courts in this District have held that the Haywood decision does not affect the question of the district court's jurisdiction to hear pendent state law claims against DOCCS employees and have continued to dismiss those claims under Corrections Law § 24." Rounds v. Thompson, No. 12-CV-0953, 2013 WL 3187074, at *4 (N.D.N.Y. June 20, 2013) (Sharpe, J.); see also May v. Donneli, No. 06-CV-0437, 2009 WL 3049613, at *5 (N.D.N.Y. Sept. 18, 2009) (Sharpe, J., adopting report and recommendation by Treece, M.J.) ("A claim brought pursuant to state law does not implicate the Supremacy Clause, and therefore, the Haywood decision does not affect the question of whether this Court has proper jurisdiction to hear [a] pendent state law claim.").
Johnson, 2013 WL 5347468, at *3 (citing Riviello v. Waldron, 391 N.E.2d 1278, 128 (N.Y. 1979)). Ultimately, "an employee will be considered within the scope of his employment so long as he is discharging his duties, no matter how irregularly, or wi what disregard of instructions." Cepeda v. Coughlin, 513 N.Y.S.2d 528, 530 (N.Y. 1987) (quotation marks omitted).
In this case, all of plaintiffs allegations against the defendants now under consideration stem from events that occurred at Upstate while all defendants were on duty. Because each defendant in this case was "discharging his [or her] duties" relating to plaintiffs medical treatment, I find that the allegations in the amended complaint plausibly suggest that defendants were acting within the scope of their employment as DOCCS employees while undertaking the conduct alleged by plaintiff Cepeda, 513 N.Y.S.2d at 530. For this reason, I recommend that plaintiffs negligence claims arising under New York law be dismissed
Plaintiffs amended complaint in this action contains an amalgamation of claims against various defendants ranging from the Acting Commissioner of the DOCCS down to corrections officers and medical personnel employed at the facilities in which he was confined at the relevant times. All of plaintiffs claims relate to or stem from the alleged use of excessive force at Walsh and plaintiffs medical treatment at Walsh and Upstate. Having thoroughly reviewed the record now before the court, I find that the record discloses the existence of fact issues regarding whether plaintiff failed to exhaust his administrative remedies with respect to his claims against defendants LoRusso and Michaels. Turning to the merits of plaintiffs claims, I find the existence of genuine issues of material fact precluding the entry of summary judgment dismissing plaintiffs excessive force cause of action against defendants Durante, LoRusso, and Wagner; failure to protect claim against defendant Michaels; and retaliation claims asserted against defendant Durante.
I further find that plaintiffs claims of deliberate indifference against Walsh and Upstate employees are deficient because, even when accepted as true and interpreted in his favor, the evidence fails to reflect deliberate indifference to his condition, instead merely reflecting a disagreement and plaintiffs dissatisfaction with the course of his treatment. Additionally, I conclude that plaintiffs due process claims against Tousignant, Michaels, and Bullis; retaliation claims against LoRusso, Wagner, Sharma, Trabout, Mara, J. Henderson, P. Henderson, Tousignant, M. Williamson, Smith, Kumar, Schroyer, Kowalachuk, and Corey; ADA claims; and claims that defendant Judway violated DOCCS rules and policy are deficient as a matter of law, and thus I recommend that summary judgment be entered dismissing those claims. I also recommend a finding that plaintiffs state law negligence claims are subject to dismissal based on N.Y. Correction Law § 24.
It is therefore hereby respectfully RECOMMENDED that defendants' motion for summary judgment (Dkt. No. 45) be GRANTED, in part, and that plaintiffs claims against defendants DOCCS, Annucci, Prack, Bullis, Corey, Tousignant, Sharma, Trabout, Mara, Dutch, Peterson, P. Henderson, D. Williamson, J. Henderson, Danforth, Mandalaywala, Schroyer, Kowalachuk, Smith, and M. Williamson be DISMISSED and that plaintiffs retaliation claims against LoRusso and Wagner be DISMISSED, but that the motion otherwise be DENIED in all respects, and that the matter proceed with regard to plaintiffs excessive force claims against defendants Durante, Wagner, and LoRusso; retaliation claims against defendant Durante; supervisory claims against defendants Judway and Gonyea; and failure to protect claim against defendant Michaels based upon events occurring at Walsh.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.
Ronnie Cole, 91-A-9212, Five Points Correctional Facility, Caller Box 119, Romulus, NY 14541, Plaintiff, pro se.
Kevin M. Hayden, Esq., Hon. Eric T. Schneiderman, Office of New York State Attorney General, 615 Erie Blvd. West, Suite 102, Syracuse, NY 13204, Attorney for Defendants.
Hon. Brenda K. Sannes, United States District Judge.
As no objections to the Report and Recommendation have been filed, and the time for filing objections has expired, the Court reviews the Report and Recommendation for clear error. See Petersen v. Astrue, 2 F.Supp.3d 223, 228-29 (N.D.N.Y. 2012); Fed. R. Civ. P. 72(b) advisory committee's note to 1983 amendment. Having reviewed the Report and Recommendation for clear error and found none, the Report and Recommendation is adopted in its entirety.
For these reasons, it is
ALPHEAUS DAILEY, JR., also known as Alphaeus Daily, Jr., 13-B-1253, Franklin Correctional Facility, P.O. Box 10, Malone, NY 12953, Plaintiff, pro se.
ROBERT A. DURR, ESQ., ONONDAGA COUNTY ATTORNEY, Onondaga County Department of Law, John H. Mulroy Civic Center, 421 Montgomery St., 12th Floor, OF COUNSEL: CAROL L. RHINEHART, ESQ. Deputy County Attorney, Syracuse, NY 13202, Counsel for Defendants.
THERESE WILEY DANCKS, United States Magistrate Judge
Pro se Plaintiff Alpheaus Dailey, Jr., is an inmate in the custody of the New York Department of Corrections and Community Supervision ("DOCCS"), and is currently housed at the Franklin Correctional Facility ("Franklin").
(See Text Entry 11/04/2016.
Plaintiff's claim for medical indifference against Deputy Joshua Fuller ("Fuller") and Deputy Ms. Iriving
In his verified complaint, Plaintiff claims that on or about September 12, 2012, a seven-inch bolt fell from the gymnasium ceiling at the Onondaga County Justice Center, striking him on the head. (Dkt. No. 1 at 4.
Plaintiff alleges Defendants were deliberately indifferent to his serious medical needs. Id. at 4-6. More specifically, Plaintiff claims that Fuller did not "pull or push [the] emergency button when [the] injury took place" and Irving "did not call emergency medical attention which lead [sic] to [Plaintiff] having continuous pain and vomiting all nite [sic]." Id. at 4-5.
According to Defendants, on September 15, 2012, at approximately 5:25 p.m., while Fuller was supervising Unit 3A, Plaintiff approached the Deputy's Station holding a bolt and washer in one hand, while rubbing his head with his other hand. (Dkt. No. 16-7 at ¶ 9.)
Plaintiff informed Fuller that while he was in the recreation yard playing basketball, the bolt fell from the basketball hoop, striking him on the head. Id. at ¶¶ 7-10. Plaintiff told Fuller his head hurt and asked to see the nurse. Id. at ¶ 12. Fuller did not observe an open would or any blood coming from Plaintiff's head. Id. Fuller contacted the medical unit, speaking to Julianne Seaton ("Nurse Seaton"). Id. at ¶ 13. Nurse Seaton advised she would come to the pod to assess Plaintiff. Id.
Seven minutes later, at 5:32 p.m., Nurse Seaton arrived to evaluate Plaintiff. Id. at ¶ 15. Nurse Seaton provided Plaintiff with an ice pack and determined no further medical attention was required. Id. According to Fuller, Plaintiff appeared satisfied after receiving the ice pack from Nurse Seaton. Id. Pursuant to customary practice, Fuller documented Nurse Seaton's presence on the unit in the facility's log book, and generated an Incident Report documenting Plaintiff's incident. Id.
When Irving returned from her evening meal break to resume supervising Unit 3A, Fuller briefed Irving on the incident involving Plaintiff. (Dkt. No. 16-10 at ¶ 11.) Specifically, Fuller told Irving that Plaintiff stated a bolt fell from a piece of wood that was holding the basketball hoop to the wall in the large recreation yard and that Plaintiff said the bolt struck him on the head. Id. Fuller informed Irving that a nurse evaluated Plaintiff, and that Plaintiff was given an ice pack and did not require further medical attention. Id. at ¶ 12.
Thereafter, sometime around 6:00 p.m., while Irving was touring the pod, Plaintiff told Irving that his head hurt. Id. at ¶ 13. Irving called the medical unit and spoke to Nurse Seaton. Id. Irving informed Nurse Seaton that Plaintiff was complaining his head hurt. Id. Nurse Seaton told Irving she would notify a doctor. Id. Irving documented this information in the facility's log book. Id. Approximately ten minutes later, Nurse Seaton called Irving and stated that she had contacted the doctor and Plaintiff would be reevaluated by medical staff and given pain medication later that evening during the routine medicine pass. Id. at ¶ 14.
At approximately 7:19 p.m., Plaintiff was reexamined by Nurse Seaton. Id. at ¶ 18. Nurse Seaton provided Plaintiff with two more ice packs and indicated that no further medical attention was necessary. Id. Irving documented Nurse Seaton's presence in the facility's log book. Id. At 8:25 p.m., nursing staff entered Unit 3A to distribute medication. Id. at ¶ 19. Irving declares the nurse was present on the unit for approximately twenty-five minutes, and Plaintiff received pain medication from the nurse during the medication pass. Id.
At 9:20 p.m., Fuller returned to supervise Unit 3A, relieving Irving for a ten minute break. (Dkt. No. 16-7 at ¶ 20.) Fuller does not recall having a conversation with Plaintiff during this time, nor does Fuller recall Plaintiff issuing any complaints during this time. Id. At 9:30 p.m., Irving returned from her break. Id. at ¶ 21. Fuller declares he did not return to Unit 3A the remainder of his shift, which ended at 11:00 p.m., and does not recall having any further interaction with Plaintiff in the days that followed. Id. Fuller also declares he has no knowledge of Plaintiff losing consciousness after the incident or vomiting in his cell. (Dkt. No. 16-7 at ¶ 22.) Neither Plaintiff, nor any other inmate, informed Fuller that Plaintiff had lost consciousness. Id. at 23. Fuller states Plaintiff never told him that his vision was blurry, he was weak, or had vomited. Id.
At approximately 10:32 p.m., Nurse Seaton returned to Unit 3A to examine Plaintiff. Id. (Dkt. No. 16-10 at ¶ 21.) At 10:55 p.m., Deputy Peck arrived at Unit 3A to assume responsibility of supervising the inmates for the next shift. Id. at ¶ 23. Irving briefed Deputy Peck on the activities and the status of the inmates, including Plaintiff's incident. Id. at ¶ 23. At 11:00 p.m., Irving completed her shift, and she had no further contact or involvement with Plaintiff. Id. at ¶ 24.
Irving declares that during her shift, she conducted tours of the unit every thirty minutes, and did not observe Plaintiff vomiting at any time in his cell, nor did Plaintiff report that he had vomited. Id. at ¶ 22. Irving further states that had she been aware that Plaintiff had vomited, she would have reported this information to the medical unit and would have documented the incident in the facility's log book. Id.
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. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) ("A verified complaint is to be treated as an affidavit . . . and therefore will be considered in determining whether material issues of fact exist. . . .") (citations omitted).
In Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005), the Second Circuit reminded that on summary judgment motions "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." "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). Indeed, "[a]t 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); see also Smith v. Woods, 9:03-CV-480 (DNH/GHL), 2006 WL 1133247, at *3 & n.10 (N.D.N.Y. Apr. 24, 2006).
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) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).
While courts are required to give due deference to a plaintiff's pro se status, that status "does not relieve [a pro se] plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment." Jorgensen v. Epicl Sony Records, 351 F.3d 46, 50 (2d Cir. 2003). Here, Plaintiff has failed to respond to Defendants' Statement of Material Facts (Dkt. No. 16-5) as required under L.R.(a) (3).
This Circuit adheres to the view that nothing in Rule 56 imposes an obligation on the court to conduct a search and independent review of the record to find proof of a factual dispute where a non-movant willfully fails to respond to a properly filed summary judgment motion. Amnesty Am. v. Town of West Hartford, 288 F.3d 467, 470 (2d Cir. 2002). However, the Second Circuit has ruled that "[a] district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules," including local rules relating to requirements regarding the submission of and response to statements of material facts on summary judgment motions, and to "conduct an assiduous review of the record." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (citation and internal quotation marks omitted). In deference to Plaintiff's pro se status, the Court has opted to review the entire summary judgment record in this case.
According to Mark Casselmon ("Casselmon"), a Sergeant employed with the Onondaga County Sherriff's Office, the Onondaga County Justice Center has a written policy for handling inmate complaints and grievances, which is set forth in Directive CUS-007 entitled "Inmate Grievances." (Dkt. No. 16-11 at ¶¶ 1, 4.
First, prior to filing a written grievance, an inmate must attempt to resolve his compliant with the housing pod deputy. Id. In the event that the housing pod deputy cannot resolve the complaint, the inmate may fill out a grievance form. Id. The deputy with whom the inmate addressed is required to fill out a portion of the grievance form. Id. The deputy will then notify a sergeant of the inmate's grievance. Id.
The sergeant will then attempt to resolve the inmate's complaint. Id. In the event that the sergeant is unable to resolve the complaint, the sergeant must fill out a portion of the grievance form, and then submit the grievance to a lieutenant for review. Id. If the lieutenant cannot resolve the complaint, the grievance form will be forwarded to the Grievance Coordinator. Id.
The Grievance Coordinator must either meet with the inmate or respond in writing within five business days of receipt of an inmate's grievance. Id. An inmate who is not satisfied with the Grievance Coordinator's response may appeal to the Chief Custody Deputy in writing. Id. That appeal must be made within two business days of receiving the Grievance Coordinator's response. Id. The Chief Custody Deputy must respond to the inmate's appeal within five business days of receiving the appeal. Id. Finally, if the inmate is not satisfied with the Chief Custody Deputy's decision, within three days of receipt of the unsatisfactory decision, the inmate may appeal to the New York State Commission of Correction. Id.
If a prisoner has failed to properly follow each of the applicable steps, he has failed to exhaust his administrative remedies and is barred from commencing a federal lawsuit. See Woodford, 548 U.S. at 93 (holding the PLRA requires "proper exhaustion"—"using all steps that the agency holds out, and doing so properly that the agency addressed the issues on the merits").
Because failure to exhaust is an affirmative defense, the defendant bears the burden of showing by a preponderance of the evidence that the plaintiff has failed to exhaust his available administrative remedies. See Murray v. Palmer, No. 9:03-CV-1010 (GTS/GHL), 2010 WL 1235591, at *4 (N.D.N.Y. Mar. 31, 2010); Bailey v. Fortier, No. 9:09-CV-0742 (GLS/DEP), 2012 WL 6935254, at *6 (N.D.N.Y. Oct. 4, 2012) (the party asserting failure to exhaust bears the burden of proving its elements by a preponderance of the evidence).
Plaintiff alleges that on or about September 15, 2012, while confined at the Onondaga County Justice Center, he was struck on the head by a large bolt that fell from the basketball hoop in the recreation yard of Pod 3A. (Dkt. No. 1 at 4-5.) Plaintiff claims that Defendants were deliberately indifferent to his serious medical needs in violation of his constitutional rights. Id. More specifically, Plaintiff alleges Fuller failed to "pull or push [the] emergency button when [the] injury took place" and Irving "did not call emergency medical attention," which resulted in Plaintiff having continuous pain and vomiting throughout the night. Id. at 5. Plaintiff claims he was denied medical attention for "a whole 24 hours while [he] sat in pain." Id. According to Plaintiff, he was not seen by a nurse until one o'clock in the morning. Id. At that time, he was informed he had a concussion. Id.
Defendants argue Plaintiff failed to exhaust his administrative remedies regarding his medical indifference claim. (Dkt. No 16-15 at ¶ 28; Dkt. No. 16-16 at 6-7.) The Court agrees.
In support of their motion for summary judgment, Defendants submit the affidavit of Casselmon, who served as the Compliance Supervisor at the Onondaga County Justice Center from 2012 to 2014. (Dkt. No. 16-11 at ¶ 2.) In that capacity, Casselmon also served as the Grievance Coordinator and was responsible for ensuring that all written complaints filed by inmates were properly investigated and that all policies and procedures were followed at the Onondaga County Justice Center. Id. at ¶ 3. As the Grievance Coordinator, Casselmon maintained a Grievance Log for all submitted inmate grievances. Id. at ¶ 13.
According to Casselmon, Plaintiff was an inmate at the Onondaga County Justice Center on eight separate occasions between 2006 and 2013, including the period from August 17, 2012, through April 29, 2013. Id. at ¶ 14. Casselmon reviewed the Grievance Log for the relevant time period, which indicated Plaintiff filed one grievance (Number 12-349) dated September 18, 2012. Id. at ¶¶ 15-16. Plaintiff's grievance states in full:
(Dkt. No. 16-14 at 2.)
Plaintiff's grievance was submitted to a deputy, sergeant, and watch commander. (See Dkt. No. 16-14 at 2.) Eventually it was received by the Grievance Coordinator. Id. at 3. On September 26, 2012, Casselmon accepted Plaintiff's grievance. Id. In so doing, Casselmon verified with the deputy about the missing screw (bolt), and confirmed that the recreational yard was checked before each shift. Id. Casselmon also placed a work order request to have maintenance check the basketball backboard in pod 3A. Id. Casselmon avers Plaintiff was satisfied with his response. (Dkt. No. 16-11 at ¶ 17.)
As set forth above, Plaintiff's sole grievance makes no mention of delayed or inadequate medical care. (See Dkt. No. 16-14 at 2-3.) Plaintiff's failure to describe any problem in his grievance concerning the lack of medical treatment after the incident did not give the facility enough information to investigate the allegations against Fuller and Irving. Because Plaintiff's grievance contains no mention of inadequate or delayed medical care after the incident, the Court finds Plaintiff's claim for medical indifference has not been exhausted.
Even if Plaintiff's Inmate Grievance could be liberally construed as filing a grievance for medical indifference against Fuller and Irving, Casselmon avers Plaintiff was satisfied with his response. (Dkt. No. 16-11 at ¶ 17.) Had Plaintiff been unsatisfied with the Grievance Coordinator's response, in order to fully exhaust his administrative remedies, Plaintiff was required to submit an appeal to the Chief Custody Deputy in writing within two days of receipt of Casselmon's Response. See id. at ¶ 11. Moreover, had Plaintiff had been unsatisfied with the Chief Custody Deputy's response, Plaintiff was required to appeal to the New York State Commission of Correction. Id. Here, Plaintiff did not appeal to the Chief Custody Deputy. (See Dkt. No. 16-14 at 3.) Thus, in the alternative, Plaintiff's grievance for medical indifference was not properly exhausted before commencing this action. See Woodford, 548 U.S. at 90 (holding the PLRA requires "proper exhaustion"—"using all steps that the agency holds out, and doing so properly that the agency addressed the issues on the merits").
In light of the above, the Court finds Defendants have "adequately supported the affirmative defense of failure to exhaust." See, e.g., Bennett v. Onua, No. 09-cv-7227 (SAS), 2010 WL 2159199, at *3 (S.D.N.Y. May 26, 2010) (finding that defendants discharged their initial burden on summary judgment by producing affidavits that a search of prison records indicated that no grievances were ever filed). Furthermore, there is no evidence that administrative remedies were unavailable to Plaintiff. It is undisputed there was a grievance program in place at the Onondaga County Justice Center, which was set forth in the inmate handbook. (Dkt. No. 16-15 at ¶ 25.) There is no evidence that the grievance procedure operated as a "simple dead end" or that it was "so opaque" it was incapable of use. To the contrary, Plaintiff utilized the administrative procedure to file a grievance concerning the lack of maintenance at the facility, which was addressed to Plaintiff's apparent satisfaction. (Dkt. No. 16-14 at 2-3.) Lastly, the record is devoid of evidence that Defendants "thwarted" Plaintiff "from taking advantage of a grievance process through machination, misrepresentation, or intimidation." See Ross, 136 S. Ct. at 1860. Thus, Plaintiff's medical indifference claim against Fuller and Irving has not been exhausted.
Even if Plaintiff had properly exhausted his medical indifference claim, the Court would still recommend summary judgment for Defendants on the merits. Claims that prison officials have intentionally disregarded an inmate's serious medical needs fall under the Eighth Amendment umbrella of protection from the imposition of cruel and unusual punishments. Farmer v. Brennan, 511 U.S. 825, 832 (1994).
Although medical deliberate indifference claims are most often asserted against medical personnel, non-medical personnel may also be held liable for deliberate indifference to medical needs where a plaintiff proves that "prison personnel intentionally delayed access to medical care when the inmate was in extreme pain and has made his medical problem known to the attendant prison personnel." Hodge v. Coughlin, No. 92 Civ. 0622(LAP), 1994 WL 519902, at *11 (S.D.N.Y. Sept. 22, 1994) (citations and internal quotation marks omitted), aff'd, 52 F.3d 310 (2d Cir. 1995) (table); Baumann v. Walsh, 36 F.Supp.2d 508, 512 (N.D.N.Y. 1999) (same); see also Estelle v. Gamble, 429 U.S. 97, 104-05 (1976) (noting that deliberate indifference may be manifested when prison guards intentionally deny or delay access to medical care).
Here, Defendants contend Plaintiff cannot demonstrate they were deliberately indifferent to Plaintiff's serious medical condition. (Dkt. No. 16-16 at 7-11.) The Court agrees.
Plaintiff claims Defendants showed deliberate indifference to his serious medical needs by failing to "pull or push" the emergency button when the injury took place, and failing to "call emergency medical attention," causing Plaintiff to have "continuous pain and vomiting" all night. (Dkt. No. 1 at 4-5.) However, the record belies Plaintiff's claims.
Nurse Seaton arrived at Plaintiff's housing unit at 5:32 p.m., approximately seven minutes after Fuller placed the call to the medical unit to assess Plaintiff's injury. (Dkt. No. 16-15 at ¶ 12.) Upon examination, Nurse Seaton found that Plaintiff had no change in mood/affect, he was alert and orientated, his pupils were equal and reactive to light, and his grips and gait were normal. Id. at ¶ 13. Nurse Seaton provided Plaintiff with an ice pack and informed Fuller that no further medical attention was necessary. Id. at ¶¶ 13-14. Fuller had no further interaction with Plaintiff concerning his medical needs. (Dkt. No. 16-6 at ¶¶ 19-21.)
The record establishes that Irving contacted the medical unit on two occasions after Plaintiff reported head pain and discomfort, which resulted in the issuance of two more ice packs, pain medication, and neurological checks of Plaintiff every four hours. (See Dkt. No. 16-15 at ¶¶ 16-23; Dkt. No. 17 at 37, 101-102; Dkt. No. 16-8 at 4-6.
About thirty minutes later, around 7:00 p.m., Plaintiff approached Irving at the Deputy's Station stating that his head and face hurt and that his face was numb. Id. at ¶ 19. Irving again contacted the medical unit and Nurse Seaton arrived at approximately 7:19 p.m., to reevaluate Plaintiff. Id. at ¶ 20. Nurse Seaton provided Plaintiff with two more ice packs and indicated that no further medical attention was needed. Id. at ¶ 21. Plaintiff received pain medication sometime between 8:25 p.m. and 9:00 p.m. Id. at ¶ 22. At approximately 10:30 p.m., nursing staff conducted a neurological check of Plaintiff. Id. at ¶ 23. At 11:00 p.m., both Fuller and Irving ended their shifts and had no further contact with Plaintiff. Id. at 24.
Based on the foregoing, Defendants did not withhold medical care from Plaintiff or delay treatment of his serious medical condition. Every time Plaintiff complained of pain, Defendants appropriately responded to Plaintiff's complaints, and Plaintiff received treatment from medical personnel. As custody deputies, Fuller and Irving were entitled to rely on the opinions of the medical staff. See Rosario, 2015 WL 5692550, at *12 (supervisory official entitled to rely on the opinions of medical staff concerning the proper course of treatment) (citing Abdush-Shahid v. Coughlin, 933 F.Supp. 168, 183 (N.D.N.Y. 1996) (collecting cases)).
In light of the above, no issue of fact exists as to whether Defendants were deliberately indifferent to Plaintiff's serious medical needs. See Bickerstaff v. Vassar Coll., 196 F.3d 435, 451 (2d Cir. 1999) (affidavits based on conclusory allegations insufficient at summary judgment). Accordingly, the Court also recommends granting summary judgment for Defendants on the merits.
Lastly, the Court notes that this action could also be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. Rule 41(b) of the Federal Rules of Civil Procedure provides that a court may, in its discretion, dismiss an action based upon the failure of a plaintiff to prosecute the case, or to comply with the procedural rules or orders of the court. Fed. R. Civ. P. 41(b); see also Link v. Wabash R.R Co., 370 U.S. 626 (1962). This power to dismiss may be exercised when necessary to achieve orderly and expeditious disposition of cases. See Freeman v. Lundrigan, No. 95-CV-1190 (RSP/RWS), 1996 WL 481534, at *1 (N.D.N.Y. Aug. 22, 19961). It is also well-settled that the term "these rules" in Rule 41(b) refers not only to the Federal Rules of Civil Procedure, but also to the local rules of practice for a district court. See Tylicki v. Ryan, 244 F.R.D. 146, 147 (N.D.N.Y. 2006).
Courts consider a Rule 41(b) dismissal in light of five factors: (1) the duration of the plaintiff's failure to comply with the court order (or the court's procedural rules); (2) whether the plaintiff was on notice that failure to comply would result in dismissal; (3) whether the defendant is likely to be prejudiced by further delay in the proceedings; (4) a balancing of the court's interest in managing its docket with the plaintiff's interest in receiving a fair chance to be heard; and (5) whether the judge has adequately considered a sanction less drastic than dismissal. Lucas v. Miller, 84 F.3d 532, 535 (2d Cir. 1996); Davis v. Citibank, N. A., 607 Fed.Appx. 93, 94 (2d Cir. 2015).
As to the first factor, the Court notes that Local Rule 41.2(a) states that "the plaintiff's failure to take action for four (4) months shall be presumptive evidence of lack of prosecution." N.D.N.Y.L.R. 41.2(a). In this case, a review of the docket reveals that Plaintiff has failed to take any action in this case for more than ten months. Plaintiff's motion for appointment of counsel dated January 8, 2016, which was denied without prejudice, was Plaintiff's last communication with the Court. (See Dkt. Nos. 14 and 15.) In further support of Plaintiff's lack of interest in pursuing this case, Plaintiff failed to respond to Defendants' motion for summary judgment. Thus, the Court finds that the first factor weighs in favor of dismissal.
Thus, the second factor also weighs in favor of dismissal. See e.g., Nolan v. Primagency, Inc., No. 07 Civ. 134, 2008 WL 1758644, at *3 (S.D.N.Y. Apr. 16, 2008) ("The Second Circuit has held that where a court puts a plaintiff on notice that the court is considering dismissal, and a plaintiff fails to file a document explaining the failures and outlining why the action should not be dismissed, this element has been met.") (citing Shannon v. General Elec. Co., 186 F.3d 186, 194-95 (2d Cir. 1999)); Europacific Asset Mgmt. Corp. v. Tradescape, Corp., 233 F.R.D. 344, 353 (S.D.N.Y. 2005) ("A court's prior warning of dismissal, and subsequent inaction by a plaintiff, weighs in favor of dismissal.").
The third factor is also satisfied as further delay is likely to prejudice Defendants. The events giving rise to Plaintiff's medical indifference claim occurred in September 2012. (See Dkt. No. 1 at 4-5.) This action was commenced in August 2015, and Defendants filed their answer more than one year ago. (Dkt. Nos. 1 and 8.) See, e.g., Georgiadis v. First Boston Corp., 167 F.R.D. 24, 25 (S.D.N.Y. 1996) (noting that passage of time would cause memories to fade). Moreover, Defendants filed their motion for summary judgment on July 25, 2016. (Dkt. No. 16.)
Under the circumstances, the Court finds that the need to alleviate congestion on the Court's docket would outweigh Plaintiff's right to receive a further chance to be heard in this case. It is the need to monitor and manage cases such as this that delay the resolution of other cases and contribute to the Second Circuit's relatively long median time to disposition for such civil rights cases. Finally, the Court has also carefully considered sanctions less drastic than dismissal and would find them to be inadequate under the circumstances.
In light of the above, the Court finds that Plaintiff has exhibited an apparent unwillingness to participate in this litigation. Accordingly, based upon Plaintiff's failure to comply with directives from the Court, and after considering the factors relevant to dismissal under Rule 41(b) of the Federal Rules of Civil Procedure, the Court also recommends dismissal for failure to prosecute.
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.
Leonard Hinton, Malone, NY, pro se.
Hon. Eric T. Schneiderman, Attorney General of the State of New York, Joshua E. Mcmahon, Esq., Assistant Attorney General, of Counsel, Albany, NY, for Defendants.
LAWRENCE KAHN, District Judge.
When a party makes a timely objection to a Report—Recommendation, it is the duty of the Court to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b). Where, however, an objecting "party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error." Farid v. Bouey, 554 F.Supp.2d 301, 307 (N.D.N.Y.2008) (quoting McAllan v. Von Essen, 517 F.Supp.2d 672, 679 (S.D.N.Y.2007)) (citations omitted); see also Brown v. Peters, No. 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997). "A [district] judge . . . may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b).
Plaintiff argues that the evidence presented at his first disciplinary hearing was not "reliable evidence" sufficient to support the hearing officer's determination that Plaintiff was guilty of the alleged conduct. Objs. at 1. Specifically, Plaintiff argues that the evidence was insufficient because there was no independent credibility assessment of, or written statements by, the confidential informant or alleged victim to corroborate Sergeant Gower's testimony. Id. at 1-2.
Plaintiff already raised this argument in great detail in his Motion for summary judgment, see Dkt. No. 39 at 19-22, and Judge Treece explicitly addressed it in the Report—Recommendation, Report—Rec. at 12-15. Because Plaintiffs argument is "a mere reiteration of an argument made to the magistrate judge," Dove v. Smith, No. 13-CV-1411, 2014 WL 1340061, at *1 (N.D.N.Y. Apr. 3, 2014) (Kahn, J.) the Court reviews Plaintiffs objection only for clear error, see Chylinski v. Bank of Am., NA., 434 F. App'x 47, 48 (2d Cir.2011)). The Court finds that Judge Treece committed no clear error in determining that Sergeant Gower's testimony was sufficiently corroborated by his written report and other evidence in the record. See Report—Rec. at 12-15; see also Kotler v. Daby, No. 10-CV-0136, 2013 WL 1294282, at *10 (N.D.N.Y. Mar. 28, 2013) (finding guard's testimony and written report constituted "reliable evidence" under the "some evidence" standard, and that an independent assessment of the witnesses' credibility was not required).
To establish a procedural due process claim in connection with a prison disciplinary hearing, an inmate must show that he was prejudiced by the alleged procedural errors, in the sense that the errors affected the outcome of the hearing. See Powell v. Coughlin, 953 F.2d 744, 750 (2d Cir.1991). In his Objections, Plaintiff states that "[c]learly there is relevance of every witness that Plaintiff requested to testify on his behalf." Objs. at 2. However, Plaintiff fails to advance any specific arguments as to how these witnesses' testimonies would have affected the outcome of his disciplinary hearing.
Indeed, as Judge Treece points out, Kinderman and Scarafile were merely supervisors who were informed of the incident after it had already transpired. Report—Rec. at 19. Thus, they did not have first-hand knowledge of the events, and there is no indication that they would have testified favorably to Plaintiff. See id. Moreover, Ruggerio did not arrive until after the incident occurred, and his misbehavior report was virtually identical to that of Officer Betti, who testified at the hearing. Id. Thus, there is no indication that Ruggerio's testimony would have affected the outcome of the hearing. Finally, although Burton presumably could have offered relevant testimony, as he was the alleged victim of Plaintiffs attack, Plaintiff has not demonstrated how Burton's testimony would have affected the outcome of his hearing. To the contrary, as indicated in Sergeant Betti's Fight Investigation Report, Burton stated that Plaintiff began yelling at him for no reason and Plaintiff then hit him in the head with a frying pan. Report—Rec. at 20. Thus, Plaintiffs arguments that these witnesses' testimonies would have affected the outcome of his hearing are entirely speculative, and do not warrant finding a constitutional violation. See Report—Rec. at 2; see also Grossman v. Bruce, 447 F.3d 801, 805 (10th Cir.2006) ("[A] prisoner cannot maintain a due process claim for failure to permit witness testimony if he fails to show that the testimony would have affected the outcome of his case.").
Plaintiff next argues that he has established an actual injury in connection with his third disciplinary hearing because he was confined in the Special Housing Unit ("SHU") "as a result of the constitutional violations." Objs. at 2. Plaintiff is correct that his constitutional rights were violated by Defendants' failure to timely provide Plaintiff with a copy of the disciplinary hearing determination. See Report—Rec. at 25-26. However, the copy of the hearing determination was merely the means by which to inform Plaintiff of the penalty to be imposed. Thus, Defendants' failure to provide Plaintiff with a copy of the hearing decision did not affect the actual determination, because the determination had already been made. In other words, Defendants' failure to provide Plaintiff with the hearing decision did not cause him to be confined in SHU—the penalty had already been imposed and was entirely independent of the failure to serve Plaintiff with a written confirmation of the penalty. See McCann v. Coughlin, 698 F.2d 112, 126 (2d Cir.1983) (noting that failure to provide a copy of a hearing determination occurs after the decision has been rendered). Therefore, Plaintiff has failed to show actual injury in relation to his third disciplinary hearing.
Accordingly, it is hereby:
RANDOLPH F. TREECE, United States Magistrate Judge.
Pro se Plaintiff Leonard Hinton brings this action, pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his right to due process at three separate disciplinary hearings. See Dkt. No. 1, Compl. Plaintiff has moved for summary judgment. Dkt. No. 39. Defendants oppose that Motion, and Cross—Move for Summary Judgment. Dkt. No. 42. Plaintiff opposes Defendants' Cross—Motion. Dkt. Nos. 44, Pl.'s Opp'n, & 45, Pl.'s Supp. Opp'n. For the reasons that follow, we recommend that Plaintiffs Motion for Summary Judgment be
Pursuant to FED. R. CIV. P. 56(a), summary judgment is appropriate only where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The moving party bears the burden to demonstrate through "pleadings, depositions, answers to interrogatories, and admissions on file, together with [] affidavits, if any," that there is no genuine issue of material fact. F.D.I. C. v. Giammettei, 34 F.3d 51, 54 (2d Cir.1994) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). "When a party has moved for summary judgment on the basis of asserted facts supported as required by [Federal Rule of Civil Procedure 56(e)] and has, in accordance with local court rules, served a concise statement of the material facts as to which it contends there exist no genuine issues to be tried, those facts will be deemed admitted unless properly controverted by the nonmoving party." Glazer v. Formica Corp., 964 F.2d 149, 154 (2d Cir.1992).
When considering a motion for summary judgment, the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir.1998). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir.1994). Furthermore, where a party is proceeding pro se, the court must "read [his or her] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994), accord, Soto v. Walker, 44 F.3d 169, 173 (2d Cir.1995). Nonetheless, mere conclusory allegations, unsupported by the record, are insufficient to defeat a motion for summary judgment. See Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir.1991).
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. v. City 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.
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 (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 (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 (1983)), and limited to freedom from restraint that "exceed[ ] the sentence in . . . an unexpected manner[,]" Sandin v. Conner, 515 U.S. 472, 478 (1995).
Turning to liberty interests created by the state, the Supreme Court states that such liberty interests shall be limited solely to those deprivations which subject a prisoner to "atypical and significant hardship . . . in relation to the ordinary incidents of prison life." Sandin v. Connor, 515 U.S. at 484; see also Giano v. Selsky, 238 F.3d 223, 225 (2d Cir.2001) (citing Sandin); Welch v. Bartlett, 196 F.3d 389, 392 (2d Cir.1999).
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 brightline 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 at 137; 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.
With these principles in tow, we discuss the process that was provided at each of the disciplinary hearings at issue seriatim.
Defendants concede that, in the aggregate, the amount of time Plaintiff spent in the solitary housing unit ("SHU"), as a result of the three disciplinary hearings at issue, was sufficient to implicate a protected liberty interest.
The following facts are undisputed.
On July 25, 2010, Sgt. Gower
It is undisputed that Plaintiff was served with a copy of the misbehavior report on October 6, 2010. Pl.'s App., Sec. I, Ex. D, Hr'g Disposition. Accordingly, Plaintiff received notice, as required, more than twenty-four hours prior to his hearing. 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"). Moreover, the misbehavior report noted, inter alia: "[biased on an investigation [Sgt. Gower] conducted it has been determined that inmate Hinton . . . was attempting to solicit sexual acts and was attempting to extort money from a family member of inmate Veach. . . . Inmate Hinton also gave inmate Veach two packs of tobacco without authorization of any staff." 1st Misbehavior Rep. Such notice was adequate to inform Plaintiff of the nature of the offenses for which he was charged. See Sira v. Morton, 380 F.3d at 70 (quoting Taylor v. Rodriguez, 238 F.3d at 193, for the proposition that "due process requires more than a conclusory charge; an inmate must receive notice of at least some specific facts underlying the accusation such that he can prepare a defense to those charges and not be made to explain away vague charges set out in a misbehavior report.") (internal quotation marks omitted).
The record clearly establishes that Plaintiff was present at the hearing, able to question witnesses, and present rebuttal evidence. See generally 1st Hr'g Tr. This remains true notwithstanding the fact that four of the witnesses Plaintiff called refused to testify. See id. at p. 10. Crucially, "it is well settled that [a]n inmate does not possess a constitutional right to confront or cross-examine witnesses in prison disciplinary hearings." Fernandez v. Callens, 2010 WL 4320362, at *11 (W.D.N.Y. Oct. 29, 2010) (citing Wolff v. McDonnell, 418 U.S. at 567-68; Kalwasinski v. Morse, 201 F.3d 103, 109 (2d Cir.1999); & Silva v. Casey, 992 F.2d 20, 22 (2d Cir.1993)). The fact that these witnesses refused to testify on Plaintiffs behalf does not alter the fact that he was given the opportunity to call witnesses. See Creech v. Schoellkoph, 688 F.Supp.2d 205, 213 (W.D.N.Y.2010) (finding no due process violation where two witnesses called by inmate refused to testify); see also Edmonson v. Coughlin, 1996 WL 622626, at *8 (W.D.N.Y. Oct. 4, 1996) (citing Wolff v. McDonnell, 418 U.S. at 568-69 for the proposition that "Wolff specifically recognized the discretion of prison officials to decline to call as witnesses fellow inmates who do not wish to testify, or witnesses who know nothing of the underlying events"); Jamison v. Fischer, 2013 WL 5231457, at *3 (S.D.N.Y. July 11, 2013) (citing cases for the proposition that "if a requested witness refuses to testify at a disciplinary hearing, the hearing officer is not constitutionally required to compel the witness to testify."). Moreover, in such situations, all that is required of the hearing officer is that he provide the inmate with notice of the fact that witnesses are being withheld and explain the reasons why. See N.Y. COMP.CODES R. & REGS. tit. 7, § 254.5(a) ("If permission to call a witness is denied, the hearing officer shall give the inmate a written statement stating the reasons for the denial, including the specific threat to institutional safety or correctional goals presented."). Here, Defendant Bullis explained at the hearing that:
1st Hr'g Tr. at p. 10.
Thus, we can find no evidence of any constitutional deficiency in Plaintiffs opportunity to appear, call witnesses, or present rebuttal evidence at the first disciplinary hearing. See Wolff v. McDonnell, 418 U.S. at 564-66.
It is clear from the record that at 11:15 a.m., on October 8, 2010, Plaintiff received a written statement as to the evidence relied upon and the reasons for the disciplinary action that was taken. Pl.'s App., Sec. I, Ex. D, Hr'g Disposition Form.
Therefore, under Wolf v. McDonnell, Plaintiff received all of the process due to him. 418 U.S. at 564-66.
Plaintiff also argues that there was no credible evidence to support Defendant Bullis's disciplinary determination. While an inmate is not entitled to a hearing officer with the same level of impartiality required by judges; it is true that he is entitled to a hearing untainted by arbitrary or pre-determined 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 (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., 472 U.S. 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 at 488).
Here, Defendant Bullis's determination was supported by ample reliable evidence, chiefly, the testimony and misbehavior report of Sgt. Gower. See Pl.'s App., Sec. I at Ex. C.
As noted above, the misbehavior report stated, inter alia: "[b]ased on an investigation [Sgt. Gower] conducted it has been determined that inmate Hinton . . . was attempting to solicit sexual acts and was attempting to extort money from a family member of inmate Veach Inmate Hinton also gave inmate Veach two packs of tobacco without authorization of any staff." 1st Misbehavior Rep. At the hearing, Sgt. Gower explained, in sum and substance, that on the morning of July 25, 2010, an unidentified inmate told him that Plaintiff had attempted to solicit sex from Inmate Veach. As a result, Sgt. Gower conducted an investigation during which he interviewed Inmate Veach, who reported that "approximately 2 weeks before that he got two packs of tobacco from [Plaintiff] he was unable to pay him so [Plaintiff] had requested he perform sexual acts for approximately ten days to pay him for the tobacco." 1st Hr'g Tr. at p. 6. Veach also informed Sgt. Gower that Plaintiff had attempted to pull him into a toilet stall but stopped when Inmate Moody walked into the bathroom area. Gower verified with Inmate Moody that he saw Veach and Hinton in the bathroom at the same time; however, Moody did not see Hinton pulling Veach into the stall. Gower ordered that Veach be examined by medical, and no evidence of sexual misconduct was found. Gower also testified that Veach informed him that Plaintiff and Inmate McGee had set up a three-way call in an attempt to extort fifteen dollars from Inmate Veach's sister for the tobacco. Gower reported that he verified this with inmate McGee who admitted to helping to orchestrate the three-way call. Id. at pp. 6-8.
Furthermore, Plaintiffs argument that Inmate Veach's statements to Sgt. Gower during his investigation are unreliable in light of the fact that Inmate Veach subsequently refused to testify at Plaintiffs hearing— reportedly, on the grounds that he knew nothing about the alleged incident—are also unavailing. See Pl.'s Mem. of Law at pp. 17-20; Pl.'s App., Sec. I, Ex. C, Inmate Refusal Form, dated Oct. 8, 2010; see also Louis v. Ricks, 2002 WL 31051633, at *13 (S.D.N.Y. Sept. 13, 2002) (surveying cases for the proposition that no due process violation occurred where the hearing assistant relied on testimony from the alleged victim which the victim later recanted).
Plaintiff alleges that Defendant Prack was liable in his supervisory capacity for Defendant Bullis's alleged due process violation because he knew of but failed to remedy the violation when he affirmed Defendant Bullis's disciplinary determination. Pl.'s Mem. of Law at p. 25. An individual cannot be held liable for damages under § 1983 merely because he holds a position of authority, but he can be held liable if he was personally involved in the alleged deprivation.
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995) (citations omitted).
However, having failed to find any evidence of an underlying constitutional violation, we recommend that Plaintiffs Motion for Summary Judgment be
The following facts are undisputed.
On August 11, 2010, Plaintiff was charged with violent conduct, assault on an inmate, and fighting by Sergeant Betti, and violent conduct, creating a disturbance, and fighting by Corrections Officer Ruggerio.
In his Motion, Plaintiff claims he is entitled to summary judgment as to his due process claims against Defendant Haug because he was improperly denied the right to call witnesses on his behalf, and against Defendant Venettozzi for affirming Defendant Haug's disciplinary determination. See Pl.'s Opp'n at p. 5. Defendants argue that they are entitled to summary judgment on this claim because Plaintiff received all of the process that was due at his second disciplinary hearing. Defs.' Mem. of Law at pp. 17-19.
It is uncontested that Plaintiff received a copy of the misbehavior reports at issue on August 12, 2010. Haug Decl. at ¶ 9 & Ex. A, Tier III Data Sheet, dated Aug. 22, 2010. Furthermore, each report contained a detailed factual account of the basis of the charges, the names of those involved, and the date of the relevant events. Id. at Ex A, Misbehavior Reports, dated Aug. 11, 2010. Accordingly, Plaintiff clearly received constitutionally sufficient notice.
According to the Fourth Department, the "denial of petitioner's request to call C.O. Ruggerio, Inmate Burton, Captain Scarafile and Deputy Superintendent Kinderman as witnesses, without a stated good faith reason[ ], constituted a clear constitutional violation." Id. at Ex. B, Dec. & J. at p. 5. As a result of the Fourth Department's decision, Plaintiffs disciplinary determination was subsequently administratively overturned. However, neither of these facts is dispositive for purposes of the instant action. Gutierrez v. Coughlin, 841 F.2d 484, 486 (2d Cir.1988) (citing cases for the proposition that collateral estoppel does not preclude defendants from re-litigating due process violations decided in an Article 78 proceeding in a subsequent 1983 case because, inter alia, "appellees could not have been held personally liable in such a proceeding, they did not have the same incentive to litigate that state court action as they did the federal § 1983 action[,]" and "the defenses of absolute or qualified immunity, or lack of personal involvement, were not available to appellees"); see also LaTorres v. Selsky, 2011 WL 7629515, *6 n. 10 (N.D.N.Y. Aug. 1, 2011) (citing Guitierrez v. Coughlin).
Here, notwithstanding the fact that a denial of the right to call witnesses without an explanation is a violation of New York's prison disciplinary regulations, N.Y. COMP.CODES R. & REGS. tit. 7, § 254.5(a), Defendant Haug's decision to deny, without reason, Plaintiffs request to call as witnesses Deputy Superintendent Geoghegan, Captain Scarafile, and Officer Rugerio did not rise to the level of a due process violation because Plaintiff failed to allege, in any fashion, how he was prejudiced. Indeed, it is undisputed that Deputy Superintendent Geoghegan and Captain Scarafile had no personal knowledge of the event; their only involvement was that they were informed about the alleged fight after the fact. Haug Aff. at ¶ 18 & Ex. A, Unusual Incident Report, dated Aug. 19, 2010, at p. 2. Similarly, Officer Ruggerio's misbehavior report confirms that he arrived on scene after the event, and the details of his report are nearly identical to those provided by Officer Betti, who testified at the hearing. Id. at ¶¶ 10 & 16-17, & Ex. A, Misbehavior Reports. Accordingly, their testimony was at best cumulative, and quite possibly irrelevant. See Hamilton v. Fischer, 2013 WL 3784153, at *10 (W.D.N.Y. July 18, 2013) (dismissing due process claims based on a hearing officer's failure to call witness who were not present for the incident at issue because the error was harmless).
Likewise, the record in this case compels us to reach a similar conclusion with regard to the fourth witness, Inmate Burton, although by a slightly different route. With respect to his decision to deny Plaintiffs request to call Inmate Burton, Defendant Haug avers that "I have no recollection of who that inmate was or why his testimony would have had any bearing on whether or not Plaintiff Hinton hit another inmate with a frying pan. Had I believed that this inmate had information that was pertinent to Plaintiff Hinton's defense, I would have requested his testimony." Id. at ¶ 19. It cannot seriously be argued that Inmate Burton, the inmate Plaintiff allegedly hit over the head with the frying pan, did not have any relevant information with regard to the incident at issue.
Given the lack of any indication in the record that Inmate Burton would have testified favorably, as well as his own admissions to Sergeant Betti that he struck Inmate Burton with the pan, Plaintiff has failed to establish that he was prejudiced by Defendant Haug's refusal to call Inmate Burton as a witness. See Clark v. Dannheim, 590 F.Supp.2d at 430-31 (concluding, after examining the record, that failure to call a witness who had clearly relevant information was non-prejudicial because "there [wa]s no indication or reason to believe that his testimony would have been helpful to plaintiff"); see also Sims v. Artuz, 103 F. App'x at 436 (upholding magistrate's determination that exclusion of witnesses from disciplinary hearing was harmless error where plaintiff "ha [d] not shown that he was prejudiced in any way"); Tafari v. Rock, 2012 WL 1340799 (W.D.N.Y. Apr. 18, 2012) ("A prisoner cannot demonstrate prejudice and thus non-harmless error based upon pure speculation.").
It is undisputed that Plaintiff received a copy of the notice of decision including the evidence that was relied upon, as well as an explanation of the reasons for the punishment assigned. Id. at Ex. A, Hr'g Disposition Form, dated Sep. 13, 2010, at p. 2.
Accordingly, we recommend that Plaintiffs Motion be
Having established the absence of any underlying constitutional violation, Plaintiff cannot maintain a cause of action against Defendant Venettozzi based on supervisory liability for affirming Defendant Haug's disciplinary determination. See Elek v. Inc. Vill. of Monroe, 815 F.Supp.2d at 808.
Accordingly, we recommend that Plaintiffs Motion for Summary Judgment be
The following facts are undisputed.
On January 19, 2011, Plaintiff was charged with two counts of possessing unauthorized medication and smuggling. 3rd Hr'g Tr. at p. 1. On February 2-3, 2011, Defendant Uhler conducted a Tier III disciplinary hearing, from which Plaintiff was excluded. See generally id. Plaintiff was convicted of all three offenses and sentenced to thirty-six months in SHU as well as thirty-six months loss of packages, commissary, phone, and good time credits. Id at p. 1. On February 3, 2011, Plaintiff appealed Defendant Uhler's disciplinary determination. Compl. at p. 6. On March 29, 2011, Defendant Venettozzi modified Plaintiffs punishment to eighteen months SHU and corresponding loss of privileges. Uhler Decl., Ex. B, Appeal Dec., dated Mar. 29, 2011. On June 21, 2011, Defendant D. Rock, Superintendent of Upstate Correctional facility, refused Plaintiffs request for discretionary review of his disciplinary determination. Id. at Ex. C, Lt., dated June 21, 2011.
Plaintiff contends that he is entitled to summary judgment against Defendant Uhler because he held the third disciplinary hearing in Plaintiffs absence and because he failed to provide Plaintiff with written notice of the disciplinary determination and the evidence on which it was based. Pl.'s Mem. of Law at pp. 25-27. Plaintiff further claims that Defendants Venettozzi, Prack, and Rock were personally involved in depriving him of his due process right because they affirmed Defendant Uhler's determination. Pl's Opp'n at ¶ 53. Defendants argue that they are entitled to summary judgment on this claim because Plaintiff received all of the process that was due at the subsequent disciplinary hearing. Defs.' Mem. of Law at pp. 20-24.
Plaintiff concedes that he "receive[d] advance notice of the charges, by service of the misbehavior report." Dkt. No. 39-2, Pl.'s Mem. of Law, at ¶ 34.
Originally, Plaintiff contended that Defendant Uhler violated his right to due process by unlawfully excluding him from attending the third disciplinary hearing. Pl.'s Mem. of Law at pp. 25-27. However, Plaintiff has since conceded that he is barred from re-litigating this issue in the instant matter by the doctrine of collateral estoppel.
A review of Judge Feldstein's decision reveals that he indeed already considered the issue of whether "the Tier III Superintendent's Hearing was unlawfully conducted in his absence" in Plaintiffs Article 78 action. Pl.'s App. at Sec. III, Ex. A, at p. 3. Judge Feldstein noted that, "an inmate has a fundamental right to be present at a Superintendent's Hearing unless he or she refused to attend, or is excluded for reasons of institutional safety or correctional goals." Id. (internal quotations, alterations, and citations omitted). After considering the evidence before him, including a transcript of the hearing conducted in Plaintiffs absence—containing on-the-record testimony from multiple prison officials stating, in sum and substance, that they made every effort to bring Plaintiff to his disciplinary hearing but Plaintiff refused to comply with prison handcuffing procedures —Judge Feldstein concluded that "the hearing officer did not err in conducting the Tier III Superintendent's Hearing in the absence of petitioner." Id. at pp. 3-6.
Accordingly, Plaintiffs due process rights were not violated when his third disciplinary hearing was held in his absence.
It is clear that Defendant Uhler's disciplinary determination was supported by sufficient reliable evidence. Specifically, Defendant Uhler read the following into the record:
3rd Disciplinary Hr'g Tr. at p. 4.
Given the specificity of these reports as well as the fact that they were authored by officers with first hand knowledge of the events, no rational juror could conclude that Defendant Uhler lacked sufficient reliable evidence to support his determination. See Thomas v. Connolly, 2012 WL 3776698, at *23; Creech v. Schoellkoph, 688 F.Supp.2d 205, 214-15 (W.D.N.Y.2010) (finding disciplinary determination relying on misbehavior report was sufficient for purposes of "some evidence" standard where "the misbehavior report was made by the officer personally involved in the . . . incident, and is based on his first hand observation, and contains a detailed account of that incident, including the time, place, circumstances, and names of participants").
It is undisputed that Plaintiff did not receive a formal written statement of the third disciplinary determination "until at least six months after the hearing was actually held." Pl.'s Opp'n at Ex. A, Hinton Aff.
Here, notwithstanding the fact that Plaintiffs constitutional rights were violated, he cannot establish actual injury. To begin with, Plaintiff cannot argue that the failure to provide him with a written notice of the determination caused him to be sentenced to a term of SHU imprisonment; indeed, that determination was made before the duty to provide Plaintiff with a copy of the notice even arose. Cf. McCann v. Coughlin, 698 F.2d at 126 (noting that "the failure to provide McCann with a written statement of the Committee's decision and underlying reasons could not have caused his injury. If he had received such a written statement, it would have been after the Committee rendered its decision."). Thus, in order to establish that the Defendants' failure to provide him with a copy of the notice caused him actual injury, Plaintiff would have to show that because he did not have access to the information contained in the notice, he was unable to mount a meritorious appeal, and therefore, was forced to remain in SHU longer than necessary. Cf. Miner v. City of Glens Falls, 999 F.2d 655, 660 (2d Cir.1993) (citing McCann v. Coughlin, 698 F.2d at 126, for the proposition that "[i]n this Circuit, the burden is normally on the plaintiff to prove each element of a § 1983 claim, including those elements relating to damages. . . . It was therefore Miner's burden to show that the property or liberty deprivation for which he sought compensation would not have occurred had proper procedure been observed.").
Yet, despite the fact that he ultimately received a copy of the notice prior to commencing the instant action, Plaintiff fails to allege that had he known the evidentiary basis for his conviction as contained in the notice earlier, he would have been able to successfully appeal the determination. Indeed, according to his Complaint, despite the fact that Judge Feldestein explicitly granted him the right to file additional appeals after he had obtained a copy of the notice, his subsequent attempts were unsuccessful. See Compl. at p. 6; see also Pl.'s App. at Sec. III, Ex. A, at pp. 5-6.
Having failed to establish any actual injury, Plaintiff is only entitled to receive nominal damages in the amount of one dollar. McCann v. Coughlin, 698 F.2d at 126. Accordingly, we recommend that Defendants' Cross—Motion for Summary Judgment be
Plaintiff claims that "[s]ince Venettozzi, Prack[,] and Rock all had [a] hand in affirming the [third disciplinary] decision, they as well are liable." Pl.'s Mem. of Law at p. 27. Courts within the Second Circuit are split over whether the mere allegation that a supervisory official affirmed a disciplinary determination is sufficient to establish personal liability. 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 regards 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 rubberstamped the results). Here, Plaintiff fails to make a single non-conclusory allegation from which a reasonable juror could conclude that Defendants Venettozzi, Prack, and Rock did anything other than rubberstamp Plaintiffs disciplinary determination.
Accordingly, we recommend that Plaintiffs Motion for Summary Judgment as to his claims against Defendants Venettozzi, Prack, and Rock, for affirming the third disciplinary disposition be
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 (1982); Eng v. Coughlin, 858 F.2d 889, 895 (2d Cir.1988). 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 (1987); Lewis v. Cowan, 165 F.3d 154, 166 (2d Cir.1999). Until recently, courts faced with qualified immunity defenses have applied the procedure mandated in Saucier v. Katz, 533 U.S. 194 (2001). That case set forth a two-pronged approach whereby the court must first decide whether the facts alleged, or shown, make out a violation of a constitutional right. If yes, the court must then decide whether the right at issue was "clearly established" at the time of the alleged misconduct. Saucier v. Katz, 533 U.S. 194 at 201-02. Recently, however, the Supreme Court softened the rigid approach enunciated in Saucier. See Pearson v. Callahan, 555 U.S. 223 (2009). Now, the Saucier two-pronged test is not mandated in terms of the order in which the prongs may be addressed, though the sequence of review may remain appropriate or beneficial. Id. at 818.
To determine whether a right was clearly established for purposes of qualified immunity, courts must consider "whether the right was defined with reasonable specificity; whether decisional law of the Supreme Court and the [Second Circuit] supports its existence; and whether, under preexisting law, a defendant official would have reasonably understood that his [or her] actions were unlawful." Rodriguez v. Phillips, 66 F.3d 470, 476 (2d Cir. 1995); see also Nicholas v. Miller, 189 F.3d 191, 195 (2d Cir.1999).
A party is entitled to summary judgment on qualified immunity grounds if the court finds that the rights asserted by the plaintiff were not clearly established, or that "no reasonable jury, looking at the evidence in the light most favorable to, and drawing all inferences most favorable to, the plaintiff [], could conclude that it was objectively unreasonable for the defendant to believe that he was acting in a fashion that did not clearly violate an established federally protected right." Lee v. Sandberg, 136 F.3d 94, 102 (2d Cir.1997) (citations omitted).
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.
LORETTA A. PRESKA, Chief Judge.
Houston is an inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS") who currently resides at the Five Points Correction Facility in Romulus, New York ("Five Points"). Between August, 2009 and November, 2011, the time period relevant to Plaintiff's claims, Houston was housed at three facilities operated by the New York City Department of Corrections ("DOC"): the Anna M. Kross Center ("AMKC"), the Manhattan Detention Complex ("MDC"), and the George R. Vierno Center ("GVRC") on Riker's Island. Houston initiated this action on October 17, 2011. (Second Amended Complaint ("SAC"), [dkt. no. 2].) On August 20, 2013, Judge Harold Baer, Jr. granted Defendants' motion to dismiss in part. Houston v. Schriro, No. 11-CV-7374, 2013 WL 4457375 (S.D.N.Y. Aug. 20, 2013) [dkt. no. 80]. Six sets of claims survived, each of which is discussed below.
Prior to his initial incarceration in August, 2009, Plaintiff alleges that he visited a dentist who informed him that surgery was required to treat a broken tooth on the back left side of his mouth. (Houston Dep. at 52:6-18.) In March, 2010, Plaintiff was treated by a DOC dentist, Dr. Brian Martin, at which point he complained about pain in the upper right side of his mouth. (Martin Decl. ¶ 9.) According to Plaintiff, Dr. Martin determined that he would need to be treated by an outside oral surgeon. (SAC ¶ 14.) Based on his review of medical records maintained by Corizon Health Services, Dr. Martin denies referring Houston to an oral surgeon or suggesting that a visit to an oral surgeon was necessary. (Martin Decl. ¶ 10, Ex. A.) Plaintiff states that he filed complaints requesting to be seen by an oral surgeon and claiming that he was in substantial pain. (SAC ¶ 17.) Plaintiff was never treated by an oral surgeon during his time in DOC custody.
According to DOC records, Houston visited Dr. Martin again on May 10, 2011. (Martin Decl. Ex. D.) During this visit, Martin identified a fractured filling in his top left molar. (Id. ¶ 14-15.) Martin replaced the filling ten days later. (Id. Ex. P.) Following his transfer to State custody, a dentist at Five Points determined that Houston needed to have five front teeth removed from the top of his mouth. (Pl's Opp. to Summ. J. ¶ 6, Ex. B.) Plaintiff claims that Defendants' failure to provide appropriate dental care during his time in DOC custody—specifically, the failure of the Defendants named in this claim
Second, Plaintiff contends that in March 2010 Yvette Bowers, the AKMC grievance officer, directed prison staff to search his cell and destroy his blood pressure, blood thinning, and glaucoma medication in retaliation for filing a lawsuit against Rosamund Padmore, the grievance program supervisor. (SAC ¶ 38.) Houston says he was present when several guards performing an institutional (pre-scheduled) search of his entire cell block threw his medication on the floor and swept it up with other trash. (Houston Dep. at 205:5-19.) He alleges that he was subsequently treated for a blood clot at Elmhurst Hospital as a result of his inability to take his medication. (SAC ¶ 57.) When he returned from the hospital, Houston says that Bowers told him he "should have dropped dead." (Houston Dep. 231:14-24.) Bowers denies these allegations. (Bowers Decl.) She claims that she is usually unaware of inmates' medication requirements unless such issues are raised in a grievance and does not recall learning that an inmate filed a grievance or lawsuit against Ms. Padmore. (Id. at ¶¶ 9, 11.)
Plaintiff claims that Defendants were deliberately indifferent to his need for orthopedic footwear in violation of the Eighth Amendment. Houston alleges that his prison-issued footwear caused him injuries, including gout, swelling, bunions, and painful corns. (SAC ¶ 20.) He claims that he visited a DOC podiatrist who issued him a pass to obtain workboots on May 4, 2010 and recommended further care from an outside podiatrist. (Houston Decl. at 124:18-125:25.) Plaintiff states that he did not receive workboots until over a year later, at some point between July and September, 2012, when an officer in the barber shop helped him to acquire them. (Id. at 144:11-145:10.) As a result of the delay, Houston alleges that his foot injuries worsened, causing difficulty walking and standing as well as the need for foot surgery. (SAC ¶ 55.) In response, Defendants claim that Houston was, in fact, seen by a podiatrist and issued appropriate footwear in a timely manner. In the alternative, they argue that the alleged denial of footwear does not amount to a sufficiently serious deprivation of care in violation of the Eighth Amendment.
Houston alleges that he was strip searched on six occasions between August 10, 2011 and August 20, 2011 (Houston Dep. at 270:1-16) in violation of his rights under the Free Exercise Clause, RLUIPA, and the Fourth Amendment. He claims that Officer Webb, a female security captain, observed the searches. (SAC ¶ 42, 57.) As a practicing Muslim, Houston maintains that it is a violation of his religious beliefs for a woman who is not his wife to view his naked body. (Id. at 276:14-25.) He claims that Webb continued to observe the searches even after he objected and informed her that such conduct violates his religious beliefs. (Id. at 277:19-278:15, 274:9-12.)
DOC policies prohibit female staff from observing strip searches of male inmates absent an emergency. (Hall Decl., Ex. A at 10.) Webb denies Houston's allegations. (Webb Decl. ¶¶ 10-13.) Thomas Hall, former MDC warden, and Artemio Colon, former deputy warden, claim that they have never witnessed a female staff member observing male inmates during strip searches. (Hall Decl. ¶ 10; Colon Decl. ¶ 20.) Houston states that Hall and Colon were "probably" present at four of the six alleged searches. (Houston Dep. at 286:4-5.)
According to DOC records, at least two of the six searches were "institutional searches," which are generally scheduled one month in advance by the Deputy Warden of Security. (Webb Decl. Ex. A, Ex. B; Hall Decl. ¶ 8.) The logs for these searches, which were conducted on August 12, 2011 and August 15, 2011, indicate that Webb was not involved in the searches of Houston's cell, although she is listed as the security captain for the August 15th search. (Id.) DOG was unable to uncover records regarding the other four alleged searches. (Webb Dec. ¶ 21.)
Summary judgment is appropriate only if the court concludes that there is no genuine dispute as to the material facts and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 322 (1986). "An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. A fact is material if it might affect the outcome of the suit under governing law." Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir.2008) (internal quotations and citation omitted). In determining whether there are genuine triable issues, "the court is required to resolve all ambiguities, and to credit all factual inferences that could rationally be drawn, in favor of the party against whom summary judgment is sought." Howley v. Town of Stratford, 217 F.3d 141, 150-51 (2d Cir.2000).
If this burden is satisfied, the opposing party must then "produce specific facts indicating that a genuine factual issue exists." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998) (internal quotations and citation omitted). The non-movant must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd., v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). If, however, the non-movant provides "a reasonable conflicting interpretation of a material disputed fact," summary judgment must be denied. Schering Corp. v. Home Ins. Co., 712 F.2d 4, 9 (2d Cir. 1983).
Plaintiff brings claims against Defendants under 42 U.S.C. § 1983, which provides citizens with a private right of action to safeguard their constitutional rights. See 42 U.S.C. § 1983. To succeed on a § 1983 claim, Plaintiff must prove "the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1998) (citations omitted); see also Gleason v. Scoppetta, 566 Fed.Apx. 65 (2d Cir.2014).
The Prison Litigation Reform Act ("PLRA") mandates that "[n]o action shall be brought with respect to prison conditions under [§ 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Prisoners must "properly" exhaust all available remedies before proceeding to court, Woodford v. Ngo, 548 U.S. 81, 83 (2006), which requires "compliance with an agency's deadlines and other critical procedural rules. . . ." Id. at 90. Since procedures vary from system to system, "it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion." Jones v. Bock, 549 U.S. 199, 219 (2007). However, a Plaintiff can successfully counter a defendant's failure to exhaust contention if administrative remedies were not, in fact, available. Chavis v. Goord, 333 Fed.Appx. 641, 643 (2d Cir.2009) (citing Hemphill v. Mew York, 380 F.3d 680, 686 (2004)); see also Johnson v. Maha, 460 Fed. Appx. 11, 15 (2d Cir.2012) (holding that Woodford v. Ngo "does not abrogate the unavailability defense to nonexhaustion." Id. at 15 n. 6).
The Department of Corrections employs a specific grievance procedure known as the Inmate Grievance Resolution Program ("IGRP"). (See Johnson Decl. Ex. H.) The IGRP is designed to resolve inmate complaints related to "aspects of his/her confinement that fall within the scope of [the Program]." (Id. at 1.) The first step in the process requires the inmate to complete a written complaint on either an "Inmate Interview Slip" (Form # 143) or an "Inmate Grievance Form" (Form # 7101R) for submission to the IGRC. (Id. at 8.) However, "[i]f these forms are not available, a complaint may be submitted on plain paper." (Id.) If DOC staff determines that the complaint is grievable, the Grievance Supervisor or Grievance Officer conducts an investigation and issues a written response. (Johnson Decl. ¶ 6.) Not all complaints relating to a prisoner's confinement are grievable. "Grievances that request actions that are not obtainable via the IGRP, will result in dismissal at the IGRC level." (Johnson Decl. Ex. H at 2.)
Four levels of appeal are available following the initial determination. The inmate can request a formal IGRP hearing, review by the Warden, review by the Central Office Review Committee ("CORC"), and review by the Board of Correction ("BOC"). (Johnson Decl. ¶¶ 7-10.) At each stage in the process, the inmate must indicate his desire to appeal on the formal determination form provided to the inmate along with the applicable reviewing body's decision. (Id.) Appeals must be filed within 5 days of the receipt of the committee's written response to the Grievance. (Id., Ex H. at 9.)
A material question of fact exists as to whether Houston submitted a grievance regarding his strip searches and filed the relevant appeals in accordance with DOC policies. Defendants claim that they have no records of Houston's alleged strip search grievance filings. (Johnson Decl. ¶¶ 12, 13, Ex. A-G.) Houston claims that he did submit a grievance, which he includes as Exhibit N. Viewed in the light most favorable to Plaintiff, the evidence reduces to competing assertions that cannot be resolved on summary judgment. See Amnesty Am. v. Town of West Hartford, 361 F.3d 113, 122 (2d Cir.2004) (noting that courts should "eschew credibility assessments" in ruling on summary judgment motions) (internal citation omitted).
Assuming, arguendo, that Houston failed to comply with DOC's grievance procedures, administrative remedies were nevertheless unavailable for the specific claim he sought to assert against Webb. The IGRP explicitly provides that "allegations of assault or harassment by either staff or inmates are not grievable. . . ." (Johnson Decl. Ex. H at 2.) Plaintiff repeatedly alleges that Webb's viewing of his strip searches constituted "sexual harassment." (SAC.¶ 42.) Since the grievance procedure offered Houston no prospect for relief related to a harassment claim, Defendants' non-exhaustion contention cannot succeed. See Booth v. Churner, 532 U.S. 731, 738 (2001) ("[T]he modifier `available' requires the possibility of some relief for the action complained of."). Whether Houston could have filed a different complaint that is grievable under the IGRP—alleging, for instance, a violation of DOC's strip search policy—is of no consequence. Viewing the record in the light most favorable to Plaintiff, his complaint would have raised a sexual harassment allegation, which is not grievable under DOC's policies.
Defendants argue that Plaintiff failed to exhaust his administrative remedies by accepting the IGRP's favorable response to his two footwear grievances and declining to submit further appeals. (See Johnson Decl. Ex. E, F.) This argument is unpersuasive. "Where . . . prison regulations do not provide a viable mechanism for appealing implementation failures, prisoners . . . have fully exhausted their available remedies." Abney v. McGinnis, 380 F.3d 663, 669 (2d Cir.2004). Similar to the New York State Department of Correctional Services procedures at issue in Abney, IGRP procedures do not provide a practical means to challenge prison authorities' failure to implement favorable decisions. An inmate has only five days to appeal a grievance resolution, (Johnson Decl. Ex. H at 10,) which is "insufficient to provide adequate time to assess, in many cases, whether prison officials have implemented a favorable disposition of an inmate's . . . grievance." Abney, 380 F.3d at 668.
The parties dispute whether Plaintiff submitted any grievances or appeals with respect to Houston's dental care and cell flooding claims. Defendants allege that Plaintiffs grievance files do not contain any records related to these claims. (See Johnson Decl. ¶¶ 12-15; Johnson Decl. Ex. A-G.) Similar to Plaintiffs strip search claims, Defendants suggest that Houston's alleged grievance appeals were not submitted on the official forms. (See John Decl. ¶ 16.) Viewed in the light most favorable to Houston, the evidence once again reduces to competing assertions about whether Houston submitted the forms he claims to have filed and whether the official grievance and appeal forms were actually available.
Houston contends that he received constitutionally inadequate medical care while in DOC custody. Specifically, he alleges that his dental care, footwear provisions, and meals were improper. To succeed on such a claim, whether brought under the Eighth or Fourteenth Amendments, Plaintiff must demonstrate "deliberate indifference" to a need that is objectively "serious." Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir.2009) (reaffirming the deliberate indifference standard for threats to health or safety of persons in custody). "The standard for deliberate indifference includes a subjective and an objective component." Hill, 657 F.3d at 122. Objectively, the Plaintiff must demonstrate an actual deprivation of medical care and that "the inadequacy . . . is sufficiently serious." Salahuddin v. Goord, 467 F.3d 263, 279-80 (2d Cir.2006). Subjectively, the Plaintiff must prove that the defendant acted with "a sufficiently culpable state of mind," which "requires that the charged official act or fail to act while actually aware . . . that serious inmate harm [would] result." Id.
Defendants successfully demonstrate that there is no genuine question of material fact regarding Houston's dental care claims. Drawing all reasonable inferences in favor of the Plaintiff, a trier of fact might credit Houston's testimony over Dr. Martin's and determine that oral surgery was required to treat Plaintiffs alleged pain in the upper right portion of his mouth. But even in this scenario, Houston fails to establish that the inadequate care was sufficiently serious and that Dr. Martin acted with awareness of the harm that would result—later extraction of five teeth. Houston puts forth no evidence that the teeth he had removed upon his arrival at Five Points (his top front teeth) are the same as those that he initially complained about, or otherwise related to them. (See SAC ¶ 6; Martin Decl. ¶ 9) (noting Houston's initial complaints about pain in the upper right side of his mouth). Plaintiff fails to provide evidence that the eventual removal of his front teeth was the result of inadequate care from Dr. Martin. For these reasons, Plaintiffs dental care claims are dismissed.
Additional records, including medical reports and Houston's own grievance submissions, point to the same conclusion. On June 21, 2010, for example, Houston was issued a workboot pass from a physician's assistant with the notation "please continue workboot." (Porter Decl., Ex. 1) (emphasis added). On September 3, 2010, records from Houston's visit with another physician's assistant indicate that he inquired about workboots and the established treatment plan was to "[c]ontinue to wear workboots." (Porter Decl., Ex. J) (emphasis added). Moreover, Plaintiffs first grievance related to footwear, filed on June 7, 2011, requested that he "keep work boots, in place of medical boots," (Johnson Decl., Ex. E), suggesting that he already possessed workboots. In reply to his second footwear grievance, filed on August 10, 2011, the IGRP response stated: "You have been given a pair of workboots from the MDC clothesbox, your action requested has been granted." (Johnson Decl., Ex. F at 3.)
Even if the evidence establishes a genuine question of fact as to whether Houston was in fact provided with workboots, Plaintiff offers no evidence to demonstrate that Defendants operated with a "sufficiently culpable state of mind" and an awareness of serious harm that would result. See Salahuddin, 467 F.3d at 263, 279-80. The documentation available indicates that Defendants intended Plaintiff to have access to workboots. Moreover, Houston admits that he rarely wore the prison-issued footwear that he complained about; rather, he generally wore one of two pairs of slippers, which he claims were comfortable and appropriately sized. (Houston Dep. at 149:5-150:19.) He therefore fails to identify a genuine dispute of fact as to whether the alleged deprivation was sufficiently serious. For these reasons, Plaintiffs footwear claims are dismissed.
Viewed in the light most favorable to Plaintiff, the evidence provides a basis for a reasonable jury to conclude that Houston was denied low-sodium halal meals and compelled to choose between maintaining a low-sodium or a halal diet. Houston filed a grievance on September 7, 2010, alleging that Sharon Jones, the MDC dietician, informed him "via [his] 6S steady 3-11 officer Ms. C," that he "had to change [his] diet from Muslim to regular because Muslim prisoners don't get special diet meals-low sodium." (Johnson Decl., Ex. G at 3.) Ms. Jones denies that she has ever informed an inmate that he or she must alter his or her religious practices to receive a particular diet and claims that she is "not aware of a DOC policy which requires" it. (Id. at ¶¶ 6, 8.) This is not fully responsive to Houston's allegations, as another officer may still have informed Houston of his choice and a policy may have been in place at the time of Houston's incarceration that is no longer in effect. Jones does not explicitly attest that meals that were both halal and low-sodium were in fact available to Plaintiff. In any case, Houston's conflicting testimony creates a dispute of fact requiring a credibility determination. See Amnesty Am., 361 F.3d at 122.
Medical records provide additional evidentiary support for Houston's claim. On three separate occasions, Houston complained to a physician's assistant that he was not receiving a low-sodium diet. He first raised this issue with medical staff on October 7, 2010, at which point a low-sodium diet was ordered. (Pl.'s Ex. G at 3.) He brought the same complaint four days later; a low-sodium diet was once again included in the treatment plan. (Id. at 4.) Finally, on December 1, 2010, he alleged that he was still not receiving low-sodium meals, calling into question Defendants' claim that low-sodium meals were provided to all prisoners beginning in November. (Id. at 7.) The records submitted do not establish when, if ever, Houston was restored to a halal diet.
Plaintiff asserts that the alleged denial of low-sodium meals constitutes a violation of the Eighth Amendment under the deliberate indifference standard. "The denial of a medically prescribed diet may constitute an Eighth Amendment violation under certain circumstances." Rush v. Fischer, 923 F.Supp.2d 545, 555 (S.D.N.Y.2013) (citations omitted). See, e.g., Mandala v. Coughlin, 920 F.Supp. 342 (E.D.N.Y.1996) (denying summary judgment where the plaintiff claimed he was not provided with a medically-required high-fiber diet); Johnson v. Harris, 479 F.Supp. 333 (S.D.N.Y.1979) (holding that the failure to provide a diabetic inmate with an appropriate diet violated the Eighth Amendment).
The first inquiry is whether the denial of low-sodium meals, as a factual matter, resulted in "objectively serious" harm, see Salahuddin, 467 F.3d at 279-80, such that it denied "the minimal civilized measure of life's necessities." Wilson v. Seiter, 501 U.S. 294, 298 (1991). High blood pressure has been held to constitute a serious medical condition. Baskerville v. Bolt, 224 F.Supp.2d 723, 735 (S.D.N.Y.2002) (Plaintiffs "prescription for high blood pressure arguably indicates that he may have an objectively serious medical condition that needed to be controlled through medication.") However, Houston fails to offer evidence indicating that in this instance, the interruption of his low sodium meals caused serious harm.
First, prison records suggest that the period of the denial was relatively short. DOC dietary records indicate that Houston was returned to a low-sodium diet beginning on October 12, 2010. (Jones Decl. Ex. A at 1.) DOC's dietician claims that all inmates were placed on a low-sodium diet beginning in November, meaning that Houston would have been denied a low sodium diet for less than two months. (Id. ¶ 16.) Houston argues that he was not provided with a low-sodium diet until December 2011, when he was transferred to GVRC. (Houston Dep. at 258:20-259:2.)
These records are consistent with Defendants' position that the denial of low-sodium meals lasted for a period of several weeks rather than the remainder of Houston's stay in DOG custody. Moreover, Plaintiff fails to provide any evidence that that his somewhat elevated blood pressure, sustained for a period of only a few weeks, amounts to a serious medical condition. For these reasons, Plaintiffs Eighth Amendment claim with respect to his alleged denial of low-sodium meals is dismissed.
Plaintiff also raises First Amendment and RLUIPA claims arising out of the same facts. Inmates are entitled to reasonable accommodation of religious beliefs, including dietary restrictions. See, e.g., Ford v. McGinnis, 352 F.3d 582, 597 (2d Cir.2003) (It is "clearly established that a prisoner has a right to a diet consistent with his or her religious scruples."). RLUIPA requires that the government "not `impose a substantial burden' on the `religious exercise' of inmates . . . unless the government shows that the burden furthers a compelling governmental interest by the least restrictive means." Salahuddin, 467 F.3d at 273 (2d Cir.2006) (citing 42 U.S.C. § 2000cc-1(a)). The free exercise clause requires limitations on prisoner's religious practices to be "reasonably related to legitimate penological interests" Id. (quoting O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987)). It remains unclear whether or not the substantial burden requirement must be met in order for a prisoner to state a claim under the Free Exercise Clause, but "courts have generally found that to deny prison inmates the provision of food that satisfies the dictates of their faith does unconstitutionally burden their free exercise rights." Holland v. Goord, 758 F.3d 215, 221 (2d Cir.2014) (quoting McEachin v. McGuinnis, 357 F.3d 197, 203 (2d Cir.2004)).
In this case, there is a genuine question of fact as to whether Plaintiffs halal meal requirement was, in his "own scheme of things, religious." Fifth Ave. Presbyterian Church v. City of New York, 293 F.3d 570, 574 (2d Cir.2002) (quoting Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir.1984)). Determining the sincerity of a prisoner's religious beliefs "does not lend itself to a decision on summary judgment." Pugh v. Goord, 571 F.Supp.2d 477, 498 (S.D.N.Y.2008); See also Patrick v. LeFevre, 745 F.2d at 157 ("[A]ssessing a claimant's sincerity of belief demands a full exposition of facts and the opportunity for the factfinder to observe the claimant's demeanor during direct and cross-examination.").
Defendants seek summary judgment on this claim on the basis that Plaintiff was not required to choose between his religious beliefs and adhering to a low-sodium diet. Because Defendants do not argue that the denial of halal meals served a legitimate penologial objective, Salahuddin, 467 F.3d at 275, let alone that it furthered a "compelling government interest" through the "least restrictive means," 42 U.S.C. § 2000cc-1(a), Plaintiffs First Amendment and RLUIPA meal claims survive summary judgment.
To establish a claim for retaliation under the First Amendment, Plaintiff must demonstrate: "(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." Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir.2004) (citing Dawes v. Walker, 239 F.3d 489, 492 (2d Cir.2001)) (internal quotations omitted). Houston fails to demonstrate that a reasonable jury could find in his favor on either the second or third prongs.
First, Houston offers no reasonable basis upon which to conclude that Cipio intentionally flooded his cell. He did not witness Cipio cause the flooding (Houston Dep. at 192:2-16), and no other inmate or staff member informed him that Cipio intentionally flooded his cell. (Id. at 190:21-191:2.) Houston finds it to be "common sense" that because Cipio did not move his documents from the floor he intended them to be destroyed. (Houston Dep. 191:5-21.) However, even if Cipio were negligent in attempting to repair the clog without clearing the area in case of overflow, it would not amount to intentional adverse action. The fact that Cipio gave Houston a "look" that Houston interpreted to communicate that he "did it intentionally" is also insufficient to create an issue of fact. (Houston Dep. at 192:20-193:16.) In sum, Houston's allegation that Cipio flooded his cell is conclusory.
Plaintiffs First Amendment retaliation claim regarding the alleged destruction of medication did not survive Defendants' motion to dismiss, see Houston, 2013 WL 4457375, at *8; however, Houston did plead an actionable Eighth Amendment claim, which is subject to a deliberate indifference standard. See Caiozzo, 581 F.3d at 72. Plaintiffs destruction of medication claim fails to meet this standard.
First, Plaintiff is unable to establish that Bowers ordered prison staff to destroy his medication. In her declaration, Bowers states that she did not have the authority to order staff to conduct searches; she did not have knowledge of inmates' medication regimes; and she does not recall Padmore's informing her about Houston's grievances. (Bowers Decl. ¶¶ 7, 9, 11.) Houston offers no evidence to suggest that these claims are untrue. In fact, Houston's deposition makes clear that he has no reasonable basis upon which to believe that Padmore or Bowers was even aware of his medication requirements. He acknowledges that he did not overhear any discussions between Padmore and Bowers regarding his medication; he never spoke to Bowers regarding his medication; none of the staff searching his cell mentioned Bowers's name; and he never filed a grievance with Bowers regarding his medication. (Houston Dep. at 212:23-213:4, 213:17-23, 214:3-15, 231:3-7.) His only basis for claiming that Bowers ordered the destruction of his medication is her alleged statement "[y]eah, you should have dropped dead," which, even if assumed to be true, is insufficient to establish Bowers' involvement in the destruction of his medication. (Id. at 231:12-17.)
Moreover, Plaintiff fails to establish that he experienced objectively serious harm. Houston claims that he was taken to Elmhurst Hospital on March 22, 2010 to treat a blood clot (Houston Dep. at 6:17-25), but the medical record of that visit indicates that the only diagnosis was "foreign body—esophagus." (Porter Decl. Ex. P.) Doctors recommended that he "cut [his] food into smaller pieces and chew more before swallowing." Id. Because Plaintiff cannot satisfy either element of the deliberate indifference standard, his destruction of medication claim is dismissed.
Defendants do not argue that a female officer observing strip searches of a male inmate furthers a legitimate penological interest, particularly in non-emergency situations such as scheduled institutional searches where alternative staffing arrangements can be planned in advance. Rather, Defendants seek summary judgment on the theory that Webb did not, as a factual matter, observe Houston's strip searches. However, the record does not establish that there is no genuine dispute as to the truth of this theory.
Houston testified in his deposition that Webb was present at and observed each of the six alleged strip searches. (SAC ¶ 42, 57; Houston Dep. at 276:7-25, 279:17-280:2.) In response, Defendants rely on two pieces of evidence in addition to Webb's denials: declarations from Hall and Colon, the warden and deputy warden, and log reports from two of the six searches. Both are insufficient to meet Defendants' burden to demonstrate that there is no genuine dispute of fact.
Although Colon and Hall deny ever witnessing Webb observe the strip search of a male inmate, neither is in a position to offer a firsthand account of the six alleged strip searches at issue. Hall states that he "would be present and observe these searches on occasion," but neither he nor Colon represents that they participated in or witnessed any searches between August 10, 2011 and August 20, 2011. (Hall Decl. ¶ 8.) DOC search logs cover only two of the six alleged searches and suggest that Hall and Colon were not present. (See Webb Ex. A, Ex. B.)
Viewed in the light most favorable to the Plaintiff, the evidence reduces to competing assertions on the part of Houston and Webb. Weighing these contradictory statements requires a credibility assessment, which is not appropriate at the summary judgment stage. See Amnesty Am., 361 F.3d at 122 (noting that courts should "eschew credibility assessments" in ruling on summary judgment motions) (internal citation omitted); X v. Bratten, 32 F.3d 564 (4th Cir.1994) (competing assertions over whether a female guard observed a male inmate's strip search created a genuine issue of material fact that should have precluded summary judgment). Therefore, Defendants' motion with respect to Plaintiffs strip search claims is denied.
Because Plaintiffs medical and destruction of property claims have been dismissed, there can be no supervisory liability for these claims. See Farid v. Ellen, 593 F.3d 233, 249 (2d Cir.2010). In addition, Plaintiffs claims against Brown, Harris, Agro, Halyard-Saunders, Wolf, and Schriro for failing to address his complaints about his specialized diet also fail to withstand summary judgment.
Whatever the status of Colon, "[t]he law is clear . . . that a prison official's mere response to a grievance, by itself, is not sufficient to establish personal involvement for purposes of § 1983 . . .," although a detailed response may be sufficient. Watson v. Wright, No. 08-CV-00960, 2013 WL 1791079 at *8 (W.D.N.Y. Mar. 26, 2013), adopted No. 08-CV-960A, 2013 WL 1789578 (W.D.N.Y. Apr. 26, 2013) (quoting Hidalgo v. Kikendall, No. 08-CV-7536 (DC), 2009 WL 2176334, *4 (S.D.N.Y.2009). Similarly, ignoring a prisoner's letter or complaint is insufficient to render an official personally liable. Simmons v. Cripps, No. 12-CV-1061(PAC)(DF), 2013 WL 1290268 at *10 (S.D.N.Y. Feb. 15, 2013), adopted 2013 WL 1285417 (S.D.N.Y. Mar. 28, 2013).
Even assuming Houston's account of the grievances that he filed to be accurate, there is insufficient evidence to establish the personal involvement of the supervisory-defendants. Houston initially filed a grievance with Brown, IGRAC Supervisor for MDC, who responded that the issue was non-grievable. (SAC ¶ 35; Brown Decl. ¶ 16; Johnson Decl., Ex. G.) This response was a form letter in which Brown had placed an "X" to indicate that the complaint "[did] not fall under the purview of the IGRP," (Id.) and is far from the substantive response required to establish personal involvement. See Rosario v. Fischer, No. 11-CV-4617 (JPO)(FM), 2012 WL 4044901, *5 (S.D.N.Y.2012), adopted 2012 WL 6681695 (S.D.N.Y.2012) ("a pro forma response to a letter or grievance" is insufficient.).
For the foregoing reasons, Defendants' motion for summary judgment is GRANTED with respect to Plaintiffs claims regarding dental care, destruction of property, inadequate footwear, and supervisory liability. The motion is DENIED with respect to Plaintiffs claims concerning strip searches and the denial of low-sodium halal meals.
SO ORDERED.
Richard Lighthall, Marcy Correctional Facility, Marcy, NY, Plaintiff, pro se.
Hon. Eliot Spitzer, Attorney General for the State of New York, Bruce J. Boivin, Assistant Attorney General, The Capitol, Albany, New York, for Defendants.
Bruce J. Boivin, Assistant Attorney General, of counsel.
MORDUE, Chief J.
Presently before the Court are the following motions: (1) plaintiff seeks a preliminary injunction to have the Defendants provide medical treatment, to receive reasonable accommodations for his attendance at the Alcohol and Substance Abuse Training program ("ASAT"), and to enjoin the Defendants from "withholding good time credits and parole eligibility" (Dkt. No. 11); (2) defendant Dr. Krishna Kumar Vadlamudi moves for summary judgment on certain of plaintiffs claims (Dkt. No. 27); and (3) the remaining defendants, joined by Dr. Vadlamudi, move to dismiss the amended complaint pursuant to Fed.R.Civ.P. 12(b)(6) (Dkt. No. 42).
The motions were referred to United States Magistrate Judge Randolph F. Treece for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c). Magistrate Judge Treece has submitted a Report and Recommendation (Dkt. No. 51) which recommends that the motion for a preliminary injunction be denied, the motion for summary judgment be granted, the motion to dismiss be granted, and the amended complaint be dismissed in its entirety.
Plaintiff has submitted objections to the Report and Recommendation (Dkt. No. 53). Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court conducts a de novo review of those parts of a magistrate judge's Report and Recommendation to which a party specifically objects. Failure to object to any portion of a Report and Recommendation waives further judicial review of the matters therein. See Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993). Defendants have no objection to the Report and Recommendation (Dkt. No. 54).
Upon de novo review, the Court determines that the Report and Recommendation of Magistrate Judge Treece is correct in all respects. It is therefore
ORDERED that plaintiffs motion for a preliminary injunction (Dkt. No. 11) is denied; and it is further
ORDERED that the motion for summary judgment by defendant Dr. Krishna Kumar Vadlamudi (Dkt. No. 27) is granted; and it is further
ORDERED that the defendants' motion to dismiss (Dkt. No. 42) is granted; and it is further
ORDERED that the amended complaint (Dkt. No. 10) is dismissed in its entirety.
IT IS SO ORDERED.
TREECE, Magistrate J.
Pro se Plaintiff Richard Lighthall brings causes of action pursuant to 42 U.S.C. § 1983 alleging violations of the Eighth Amendment, Due Process and Equal Protection under the Fourteenth Amendment, 42 U.S.C. § 1985, the American with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101, et seq., and § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. Dkt. No. 10, Am. Compl. at ¶¶ 79, 80, 83-86, 89-90, 92-93, 95-96, 99-100, 102, 104-07, & 109-110. Plaintiff also seeks a Preliminary Injunction to have the Defendants provide medical treatment, to receive reasonable accommodations for his attendance at the Alcohol and Substance Abuse Training program ("ASAT"), and to enjoin the Defendants from "withholding good time credits and parole eligibility." Dkt. No. 11, Prelim. Inj. Mot., Mem. of Law at pp. 7 & 16. Dr. Krishna Kumar Vadlamudi, Director of Medical Services at Marcy Correctional Facility, opposes the Preliminary Injunction and brings this Cross-Motion for Summary Judgment on Plaintiffs Eighth Amendment claims, Conspiracy claims, and ADA claims. Dkt. Nos. 27-30. Rather than joining Dr. Vadlamudi in filing a Motion for Summary Judgment, William Lape, Superintendent of Marcy Correctional Facility ("Superintendent"), Barbara Schultz-Inman, Corrections Counselor at Marcy Correctional Facility ("Corrections Counselor"), J.E. Rowlands, Senior Alcohol and Substance Abuse Counselor ("Senior ASA Counselor") at Marcy Correctional Facility, and Lester Wright, Associate Commissioner of Health Services ("Associate Commissioner") bring a Motion to Dismiss pursuant to FED. R. CIV. P. 12(b)(6) and Dr. Vadlamudi joins in Defendants' Motion to Dismiss as to all other claims. Dkt. No. 42. For the reasons to follow, it is hereby recommended that the Motion for a Preliminary Injunction be denied, the Motion for Summary Judgment be granted, the Motion to Dismiss be granted, and the Amended Complaint be dismissed in its entirety.
A few days after his transfer to Marcy Correctional Facility ("Marcy") in early 2003,
Soon after the transfer, Plaintiff was also placed into ASAT. Id. at ¶ 32. Plaintiff states that the location of ASAT was not set up for the "medically disabled." Id. Nevertheless, Plaintiff participated in ASAT until his hospitalization,
In March 2003, Plaintiff had requested vitamin B-12 shots from Dr. Vadlamudi. Id. at ¶ 39. Plaintiff also complained of "swelling of his left testicle," burning in his legs, and back pain. Id. at ¶¶ 40 & 41. Because of these complaints, Plaintiff requested to see a specialist and Dr. Vadlamudi prescribed antibiotics. Id. at ¶ 41. In July 2003, Dr. Vadlamudi placed a referral for Plaintiff to be examined by a gastroenterology specialist due to rectal pain and the enlarged testicle. Id. at ¶ 42; Ex. D, Patient Referral Form & Req. and Report of Consultation.
On September 14, 2003, Plaintiff made a formal request for "reasonable accommodations" for participation in ASAT due to his disabilities. Id. at ¶ 43; Ex. E, Req. for Reasonable Accommodations. This request was denied by Dr. Vadlamudi and the Deputy Superintendent of Administration affirmed the denial. Id. at ¶¶ 45 & 46; Req. for Reasonable Accommodations. Plaintiff filed a grievance complaint, which was denied by Superintendent Lape on December 23, 2003.
On October 20, 2003, Corrections Counselor Schultz-Inman stated to Lighthall that he had been cleared to rejoin ASAT by the authorization of Dr. Vadlamudi. Id. at ¶ 55; Exs. I, Schultz-Inman Lt. to Lighthall, dated Oct. 20, 2003, & J, Schultz-Inman Lt. to Dr. Vadlamudi, dated Oct. 14, 2003. However, that same month, Plaintiff was denied "eligibility for Merit Time and Presumptive Release" for failing to complete ASAT. Id. at ¶ 57; Ex. K, Merit Time Determination Notice & Presumptive Release Determination. On November 11, 2003, Plaintiff wrote a letter to Senior ASA Counselor Rowlands requesting that he be allowed to participate in ASAT, which Plaintiff states went unanswered. Id. at ¶ 58; Ex. L, Lighthall Lt. to Rowlands, dated Nov. 10, 2003.
In January 2004, Plaintiff was taken to Rome Memorial Hospital in regards to the enlarged testicle. Id. at ¶ 59; Ex. M, Rome Memorial Hosp. Notes & Lab Result. After determining there were two small cysts on the right testicle and one large cyst on the left testicle, an operation was performed to drain the cysts. Id.; Rome Memorial Hosp. Notes & Lab Result. Plaintiff then returned to Marcy and was told by Dr. Vadlamudi that "surgery [was not] necessary [for the enlarged testicle]" and that "the only medication" to be dispensed to him would be Motrin. Id. at ¶ 60.
On February 23, 2004,
Pursuant to the summary judgment standard,
Prior to Plaintiffs complaints made to Dr. Vadlamudi involving any rectal pain, testing had been conducted on February 18, 2003, regarding some complaints by Plaintiff to the medical staff on rectal problems, where it was found that cultures were negative. Dr. Vadlamudi Aff., Ex. A at p. 108. On March 14, 2003, Plaintiff made his first complaint about rectal pain. Id. at p. 80. After several more complaints were made, Plaintiff was again tested on May 9, 2003, where the culture came back negative. Id. at pp. 72-80 & 106. After two more complaints on May 11
On June 19, 2003, Dr. Vadlamudi requested that Plaintiff receive a colonoscopy, which was scheduled for and performed on September 25, 2003. Id. at pp. 169 & 171. On October 10, 2003, the surgeon who performed the procedure recommended Plaintiff receive a neurological consult for his 1998 back surgery, a urological consult for his prostate and bladder dysfunction, and Flomax twice a day. Id. at pp. 169-70 & 171-72. On September 30, 2003, a urological consult was ordered and the consultation occurred on December 12, 2003, where it was found that Plaintiff had an enlarged testicle and that medications should be prescribed along with a follow up visit in two months. Pl.'s Stat. of Material Facts at ¶¶ 21, 22, & 23; Dr. Vadlamudi's Stat. of Material Facts at ¶ 7; Dr. Vadlamudi Aff., Ex. A at pp. 51, 157, & 168. Follow up tests were conducted and another appointment was scheduled for February 13, 2004. Pl.'s Stat. of Material Facts at ¶¶ 27, 28, 30, & 31; Dr. Vadlamudi Aff, Ex. A at pp. 51, 100-01, 120, 140, & 156.
When Plaintiff was examined upon his entry into Marcy, it was noted that Plaintiff had a heart condition for which he received medications. Dr. Vadlamudi Aff., Ex. A at p. 86. On March 3, 4, and 18, 2003, Plaintiff complained about chest pains. Id. at pp. 77 & 82-83. At those times and because of the complaints, Lighthall was prescribed medication and was told to come back to see Dr. Vadlamudi if he had pains again. Id. However, during the March 4
On June 23, 2003, Plaintiff was seen by a cardiologist who recommended several medications and that Plaintiff stop smoking. Dr. Vadlamudi Aff., Ex. A at pp. 64 & 180. On December 1, 2003, Plaintiff was again seen by a heart specialist who recommended certain medications and a catheterization. Dr. Vadlamudi Aff., Ex. A at p. 166; Pl.'s Stat. of Material Facts at ¶ 44. On December 18, 2003, Plaintiff refused to have the catheterization performed until he was seen by the heart specialist. Pl.'s Stat. of Material Facts at ¶ 45; Dr. Vadlamudi Aff., Ex. A at p. 165. Besides having chest pain, Plaintiff also complained of rectal and back pain. On October 25, 2004, in conjunction with the possibility of surgery on his back, cardiology clearance was needed and it was at this time when Plaintiff was willing to have the catheterization performed. Dr. Vadlamudi Aff., Ex. A at p. 264. On October 26, 2004, a request was made to schedule the catheterization. Id. at pp. 17 & 263. On November 10, 2004, Plaintiff received a consultation with the heart specialist who performed a catheterization. Pl.'s Stat. of Material Facts at ¶ 47; Dr. Vadlamudi's Stat. of Material Facts at ¶ 6; Dr. Vadlamudi Aff., Ex. A at pp. 280-281. Prior to the catheterization, Plaintiff has been treated for his heart ailments by receiving blood pressure and cholesterol medications, stress tests, and referrals to a cardiologist. Dr. Vadlamudi's Stat. of Material Facts at ¶ 6; see generally Dr. Vadlamudi Aff., Ex. A at pp. 17-282. Since the catheterization, the cardiologist recommended Plaintiff take certain medications and follow up with Dr. Vadlamudi. Dr. Vadlamudi Aff., Ex. A at p. 280.
As a facility physician, Dr. Vadlamudi notes that he has no role in deciding parole eligibility or the dispensation of good time credits, which Plaintiff admits. Dr. Vadlamudi's Stat. of Material Facts at ¶ 8; Pl.'s Stat. of Material Facts at ¶ 8. Moreover, Dr. Vadlamudi does not have the authority to "approve or disapprove requests for reasonable accommodations" as he can only provide medical recommendations regarding the requests.
Upon a motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6), a court may dismiss a complaint "only if `it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Equal Employment Opportunity Comm'n v. Staten Island Sav. Bank, 207 F.3d 144, 148 (2d Cir.2000) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957) & citing Drake v. Delta Air Lines, Inc., 147 F.3d 169, 171 (2d Cir.1998)); see also Green v. New York State Dep't of Corr. Serv. et al, 2003 WL 22169779, at *1 (N.D.N.Y. Aug. 27, 2003). Furthermore, "the court must accept as true the factual allegations in the complaint, and draw all reasonable inferences in favor of the plaintiff." Harris v. City of New York, 186 F.3d 243, 247 (2d Cir.1999); see also Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir.2002) (citations omitted). Additionally, "[i]n assessing the legal sufficiency of a claim [under 12(b)(6)], the court may consider those facts alleged in the complaint, documents attached as an exhibit thereto or incorporated by reference . . . and documents that are integral to plaintiffs claims, even if not explicitly incorporated by reference." Green, 2003 WL 22169779, at *1 (internal quotation marks and citations omitted) (alterations in original).
Pursuant to FED. R. CIV. P. 56(c), summary judgment is appropriate only where "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." The moving party bears the burden to demonstrate through "pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any," that there is no genuine issue of material fact. F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir.1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). "When a party has moved for summary judgment on the basis of asserted facts supported as required by [Federal Rule of Civil Procedure 56(e)] and has, in accordance with local court rules, served a concise statement of the material facts as to which it contends there exist no genuine issues to be tried, those facts will be deemed admitted unless properly controverted by the nonmoving party." Glazer v. Formica Corp., 964 F.2d 149, 154 (2d Cir.1992).
To defeat a motion for summary judgment, the nonmoving party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on "mere allegations or denials" of the facts submitted by the moving party. FED. R. CIV. P. 56(e); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir.2003) ("Conclusory allegations or denials are ordinarily not sufficient to defeat a motion for summary judgment when the moving party has set out a documentary case."); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir.1994). To that end, sworn statements are "more than mere conclusory allegations subject to disregard . . . they are specific and detailed allegations of fact, made under penalty of perjury, and should be treated as evidence in deciding a summary judgment motion" and the credibility of such statements is better left to a trier of fact. Scott v. Coughlin, 344 F.3d at 289 (citing Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1995) and Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983)).
When considering a motion for summary judgment, the court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir.1998). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir.1994).
The Eleventh Amendment states "[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. The Eleventh Amendment bars a suit against the state in federal court unless the state consents to being sued or Congress legislatively overrides a state's immunity. Huang v. Johnson, 251 F.3d 65, 69 (2d Cir.2000). The state's immunity extends to state officials "act[ing] on behalf of the state" when the state is the "`real, substantial party in interest.'" Id. at 69-70 (citing Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddie, Inc., 506 U.S. 139, 142-47 (1993) & quoting Pennhurst State School and Hosp. v. Halderman, 465 U.S. 89, 101-02 (1984)). Moreover, the Eleventh Amendment will bar recovery for money damages in a suit "against state officials in their official capacities." Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir.2003).
Therefore, the Defendants cannot be sued in their official capacities in a claim for money damages. However, Lighthall may seek damages from them in their individual capacities. Furthermore, Plaintiff may sue the Defendants for declaratory and injunctive relief in both their individual and official capacities because "`official-capacity actions for prospective relief are not treated as actions against the State.'" Cruz v. Gomez, 202 F.3d 593, 595 n. 2 (2d Cir.2000) (quoting Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 n. 10 (1989)).
Lighthall claims that Dr. Vadlamudi violated his Eighth Amendment rights by acting with deliberate indifference to his medical needs when Dr. Vadlamudi did not adequately treat Plaintiffs conditions, delayed treatment, failed to follow another doctor's recommendations, and provided medications that were ineffective. Am. Compl. at ¶¶ 83, 92, & 93. Plaintiff states that Dr. Vadlamudi declined to take additional measures to "improve his deteriorating serious medical conditions." Id. at ¶ 93. Additionally, Plaintiff claims that Associate Commissioner Wright was deliberately indifferent by failing to "train and supervise health services employees under his authority." Id. at ¶¶ 79 & 80. Plaintiff also states that Associate Commissioner Wright implemented policies that allowed for denial of Plaintiffs grievances, thus aiding in Dr. Vadlamudi's Eighth Amendment violations. Id. at ¶ 86. Plaintiff further alleges that Superintendent Lape was deliberately indifferent to his medical needs when Lape affirmed Dr. Vadlamudi's determination and the denial of Plaintiffs grievances. Id. at ¶ 84 & 102.
This deliberate indifference must be in regards to the "prisoner's serious illness or injury[.]" Estelle v. Gamble, 429 U.S. 97, 105 (1976). Additionally, "`[b]ecause society does not expect that prisoners will have unqualified access to health care,' a prisoner must first make this threshold showing of serious illness or injury in order to state an Eighth Amendment claim for denial of medical care." Smith, 316 F.3d at 184 (quoting Hudson v. McMillian, 503 U.S. 1, 9 (1992)) (further citation omitted). Some factors that determine whether a prisoner's medical condition is serious include: "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) (internal quotation marks and citations omitted) (noting that an inmate is not required to show "that he or she experiences pain that is the limit of human ability to bear, nor [does the court] require a showing that his or her condition will degenerate into a life threatening one").
The prisoner has to show "more than an inadvertent failure to provide adequate medical care by prison officials to successfully establish Eighth Amendment liability." Smith, 316 F.3d at 184 (internal quotation marks and citation omitted). Prison officials act with deliberate indifference "when [they] `know [ ] of and disregard[ ] an excessive risk to inmate health or safety; the official[s] must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [they] must also draw the inference.'" Chance, 143 F.3d at 702 (quoting Farmer v. Brennan, 511 U.S. at 837). The Eighth Amendment deals with "the particular risk of harm faced by a prisoner due to the challenged deprivation of care, rather than the severity of the prisoner's underlying medical condition, considered in the abstract[.]" Smith, 316 F.3d at 186 (citations omitted). Moreover, the "severity of the alleged denial of medical care should be analyzed with regard to all relevant facts and circumstances." Id. at 187 (citation omitted).
Id. (quoting Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F.Supp.2d 303, 312 (S.D.N.Y.2001)).
Notably, when a prisoner, in essence, claims medical malpractice,
Hathaway v. Coughlin, 99 F.3d at 553 (quoting Estelle, 429 U.S. at 106 & n. 14).
If the malpractice involved "culpable recklessness, i.e., an act or failure to act by the prison doctor that evinces `a conscious disregard of a substantial risk of harm,'" then it may constitute deliberate indifference. Id. (quoting Farmer, 511 U.S. at 839). Additionally, "[p]rison officials and medical personnel have wide discretion in treating prisoners, and Section 1983 is not designed to permit federal courts to interfere in the ordinary medical practices of state prisons." Ifill v. Goord, 2004 WL 1663994, at *3 (internal quotation marks and citation omitted).
Because every doctor does not treat an illness in the same way, the mere difference in treatment by a defendant physician does not amount to culpability. McKenna v. Wright, 2002 WL 338375, at *8 (S.D.N.Y. Mar. 4, 2002) (citing Douglas v. Stanwick, 93 F.Supp.2d 320, 325 (N.D.N.Y.2000)). There will be no Eighth Amendment claim then "`when a doctor disagrees with the professional judgment of another doctor.'" Id. (quoting White v. Napoleon, 897 F.2d 103, 110 (3d Cir.1990) (emphasis in original)); see also Webb v. Jackson, 1994 WL 86390, at *3 (S.D.N.Y.), aff'd 47 F.3d 1158 (2d Cir.1995) (stating that "mere differences in opinion, whether between doctors or laymen, based on medical care does not give rise to an Eighth Amendment violation of inadequate medical treatment pursuant to section 1983" (citation omitted)).
Furthermore, a delay in medical treatment does not necessarily invoke the Eighth Amendment. The "delay in treatment does not violate the constitution unless it involves an act or failure to act that evinces `a conscious disregard of a substantial risk of serious harm." 'Thomas v. Nassau County Corr. Ctr., 288 F.Supp.2d 333, 339 (E.D.N.Y.2003) (quoting Chance, 143 F.3d at 703). Although a delay in providing necessary medical care may in some cases constitute deliberate indifference, such a classification is reserved "for cases in which, for example, officials deliberately delayed care as a form of punishment; ignored a life-threatening and fast degenerating condition for three days; or delayed major surgery for over two years." Freeman v. Stack, 2000 WL 1459782, at *6 (S.D.N.Y. Sept. 29, 2000) (internal quotation marks omitted).
Id. at 145 (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995)) (further citations omitted).
In this case, it must first be determined whether Lighthall's illnesses and injuries are serious. It has been well documented that Lighthall at least suffered from back, chest, and testicular pain as well as conditions resulting from his stroke. See Am. Compl. at ¶¶ 16, 17, 30, 33, 42, 50, 59, & 71; see also Dr. Vadlamudi's Aff., Ex. A at pp. 1-282. None of the Defendants dispute whether Lighthall's illnesses or injuries were serious. Dkt. No. 29, Dr. Vadlamudi's Mem. of Law in Opp'n to Prelim. Inj. and for Mot. for Summ. J. at pp. 13-18; Dkt. No. 42, Mot. to Dismiss, Mem. of Law at pp. 15-16. In fact, Defendants fail to address the issue of serious illness or injuries.
Next, Lighthall must show deliberate indifference on the part of Dr. Vadlamudi. Plaintiff must show that Dr. Vadlamudi disregarded excessive risk to his health or safety. Lighthall must also show that Dr. Vadlamudi committed something more than mere negligence. Here, Plaintiff claims that Dr. Vadlamudi failed to treat his illnesses and injuries by "disregarding" the recommendations of other doctors and specialists. Am. Compl. at ¶ 92. Lighthall also claims that despite receiving medications and treatment from Dr. Vadlamudi, they were ineffective and Dr. Vadlamudi did nothing further to alleviate his pain. Id. at ¶ 93.
Here, there were over a hundred Ambulatory Health Records entries dealing with Lighthall's medical complaints and the treatment provided or course of action to be taken. See Dkt. No. 33, Pl.'s Aff., Ex. at pp. A1 & A47; see generally Dr. Vadlamudi's Aff., Ex. A at pp. 17-282. Plaintiff also had several lab analyses performed for his various conditions. See generally Dr. Vadlamudi's Aff., Ex. A at pp. 1-282. In addition, there were numerous requests and reports for consultations provided by Dr. Vadlamudi. Pl.'s Aff., Ex. at pp. A16, A19, A20-21, A24, & A26-27; Dr. Vadlamudi's Aff., Ex. A at pp. 26-28, 32, 52-53, 61, 74, 118, 121-24, 128-31, 133, 136-41, 145-51, 153-59, 161-62, 166-68, 171-73, 177-80, 182-83, 185-90, 192, 197, 199-200, 237, 262-65, 267-69, & 274-76. Plaintiff also received several hospital stays and emergency room visits for his ailments including chest and testicular pain. Pl.'s Aff., Ex. at p. A15; Dr. Vadlamudi's Aff., Ex. A at pp. 90, 93, 195, & 203-06. Moreover, Plaintiff received medications and treatment, some pursuant to recommendations by other doctors. Pl.'s Aff., Ex. at pp. A22, A28, & A42-43; Dr. Vadlamudi's Aff., Ex. A at pp. 29, 39-40, 44-46, 50, 54, 58, 63-65, 68, 71, 73, 84, 88, 91, 169-70, 223, & 249.
In addition, Plaintiff claims substantial delays in the treatment of his numerous ailments. However, delay in and of itself will not necessarily implicate the Eighth Amendment unless "it involves an act or failure to act that evinces `a conscious disregard of a substantial risk of serious harm.'" Thomas, 288 F.Supp.2d at 339 (citing Chance, 143 F.3d at 703). That is not the case here. Plaintiffs Ambulatory Health entries reflect, beginning in January 2003 and up till October 26, 2004, that there were over one hundred entries dealing with Plaintiffs chest, back, and testicular pain along with other ailments involving his stomach. Dr. Vadlamudi Aff., Ex. A at pp. 17-86. Presumably, the only ostensible delay was that of the B-12 vitamin injections. However, Plaintiff had been tested with results in the normal range in March 2003 and it was not until he was tested for his heart problems when it was revealed that the levels were only slightly below the normal range; injections were immediately ordered. There was no conscious disregard of risk to Plaintiff. In the mean time, Plaintiff was treated for all his other ailments. Some delays in receiving consultations naturally occurred since they had to be approved ostensibly by either the administration or consultant. Once approved, however, appointments and even follow-up visits were scheduled. See supra Part I.B. For example, a urological consult was ordered a few days after Plaintiffs colonoscopy and Plaintiff received the consult about two months after the request was placed. Dr. Vadlamudi Aff., Ex. A at pp. 51, 157, & 168. There were no appreciable gaps in the treatment of Plaintiff and Plaintiff has failed to show that Dr. Vadlamudi evinced a conscious disregard of a substantial risk of serious harm. All of Plaintiffs arguments with regard to the Eighth Amendment could connote at best negligence on the part of Dr. Vadlamudi possibly amounting to medical malpractice, but it does not implicate the Eighth Amendment. Therefore, Plaintiff has failed to show that Dr. Vadlamudi violated his Eighth Amendment rights.
Lighthall has stated that Associate Commissioner Wright did not properly train and supervise his health employees. Am. Compl. at ¶ 79. Plaintiff also alleges that Wright implemented health policies that in turn aided in Dr. Vadlamudi's deliberate indifference. Id. at ¶ 86. Plaintiff does not allege that Wright had actual and direct participation in the constitutional violation in either case. Therefore, with regard to employee training and supervision, it must be shown that Wright was grossly negligent in the supervision of employees who committed a constitutional violation. Richardson v. Goord, 347 F.3d 431, 435 (2d Cir.2003) (citation omitted); Hernandez v. Keane, 341 F.3d at 145 (quoting Colon v. Coughlin, 58 F.3d at 873); see also Brock v. Wright, 315 F.3d at 165. As to the health policies, Wright could be held liable if Lighthall could prove that "a jury could reasonable find that [Wright] `created a policy or custom under which unconstitutional practices occurred or [that Wright] allowed the continuance of such a policy or custom.'" Brock, 315 F.3d at 165 (quoting Colon, 58 F.3d at 873).
Plaintiff has failed to plead facts that Wright was grossly negligent in any fashion in the training or supervision of his health employees who may have committed a constitutional violation. Furthermore, according to Lighthall, his sole complaint is that the health policy gives Dr. Vadlamudi "sole discretion as to what treatments Plaintiff would receive, regardless of the recommendations of specialists[.]" Am. Compl. at ¶ 86. This is akin to the argument of differing medical opinions as stated previously. See supra at pp. 18-19. As previously stated, no Eighth Amendment constitutional violation was found to have occurred by Dr. Vadlamudi. Because Associate Commissioner Wright's Motion to Dismiss on this issue is derivative of Dr. Vadlamudi's Motion for Summary Judgment regarding violations of the Eighth Amendment, and since no unconstitutional practices occurred, no supervisory liability exists against Defendant Wright on any basis.
In regards to Superintendent Lape, Plaintiff states that the denial of his appeals which were affirmed by Lape and the failure to act upon the grievance constituted deliberate indifference in violation of Plaintiffs rights. Am. Compl. at ¶¶ 84 & 102. As noted above, Dr. Vadlamudi was not deliberately indifferent to Lighthall's medical needs in violation of the Eighth Amendment. Since no constitutional violation occurred and there was no wrong to remedy, no supervisory liability exists as to Defendant Lape.
For the reasons stated above, it is hereby recommended that the Motion for Summary Judgment be granted, and the Motion to Dismiss be granted on the issue of deliberate indifference to Lighthall's medical needs in violation of the Eighth Amendment.
The Due Process Clause of the Fourteenth Amendment states that no "State [shall] deprive any person of life, liberty, or property, without due process of law." U.S. CONST. amend. XIV, § 1. It is well-established that a prisoner who has been lawfully incarcerated will only have "a narrow range of protected liberty interests." Morris v. Dann, 1996 WL 732559, at *3 (N.D.N.Y. Dec. 11, 1996). The Supreme Court has stated that "the criminal defendant has been constitutionally deprived of his liberty to the extent that the State may confine him and subject him to the rules of its prison system so long as the conditions of confinement do not otherwise violate the Constitution." Meachum v. Fano, 427 U.S. 215, 224 (1976); see also Benjamin v. Fraser, 264 F.3d 175, 189 (2d Cir.2001). Therefore, in order to succeed on a § 1983 claim based on the Fourteenth Amendment, the prisoner would have to prove "a deprivation of a liberty interest protected by the Due Process Clause itself, or a violation of a state-created liberty interest." Morris, 1996 WL 732559, at *3.
It is well-settled that "[t]here is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." Greenholtz v. Inmates of Nebraska Penal and Corr. Complex, 442 U.S. 1, 7 (1979); see also Leevon v. Goord, 2003 WL 22384787, at *7 (W.D.N.Y. Sept. 4, 2003). And, for a prisoner to survive a motion to dismiss on a Due Process claim, the prisoner must allege that: 1) "the State has granted inmates, by regulation or statute, a protected liberty interest with respect to the terms or conditions of confinement; and 2) the defendants' action creates an `atypical and significant hardship' with regard to those terms or conditions of confinement." Shariff v. Artuz, 2000 WL 1219381, at *6 (S.D.N.Y. Aug. 28, 2000) (citing Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir.1996) & quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)).
Even if Plaintiff's allegations that documents were forged and falsified were taken as true, as the standard of review for a motion to dismiss directs, Lighthall could not survive a motion to dismiss on his Fourteenth Amendment cause of action. Since there is no constitutional right to be conditionally released, Plaintiff must show that New York created a protected liberty interest in the terms of confinement and that the Defendants created an "atypical and significant hardship" as a result of the interest. Shariff, 2000 WL 1219381, at *6. Here, N.Y. CORRECT. LAWW § 803(4) is clear that the state did not create a protected liberty interest. Additionally, Plaintiff has failed to plead any atypical and significant hardship that was placed upon him with regard to his conditions of confinement. "Merit Time" and good time credits are not guaranteed to any prisoner. Therefore, Plaintiff has not stated a cause of action based on the Due Process Clause of the Fourteenth Amendment.
In addition to Lighthall's first claim under the Fourteenth Amendment, Plaintiff alleges that Dr. Vadlamudi violated the Due Process Clause when he acted with deliberate indifference to Plaintiffs medical needs. Am. Compl. at ¶ 96. Plaintiffs cause of action for deliberate medical indifference through the Fourteenth Amendment is misplaced.
"[I]ncarcerated prisoners are protected from cruel and unusual punishment in the form of inadequate medical care by the Eighth Amendment, as applied to the state by the Fourteenth Amendment." McKenna v. Wright, 2002 WL 338375, at *9 (S.D.N.Y. Mar. 4, 2002) (citing Estelle v. Gamble, 429 U.S. 97, 101-05 (1976)). A cause of action for deliberate indifference of medical care brought by a pro se prisoner under the Fourteenth and Eighth Amendments will only be construed as a claim pursuant to the Eighth Amendment. McKenna, 2002 WL 338375, at *9. Therefore Lighthall's cause of action under the Due Process Clause of the Fourteenth Amendment against Dr. Vadlamudi is construed as an Eighth Amendment claim, a claim that was disposed of above. See supra Part II.D.
The Equal Protection Clause of the Fourteenth Amendment states no "State [shall] deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend. XIV, § 1. It further "directs that all persons similarly circumstanced shall be treated alike." Plyler v. Doe, 457 U.S. 202, 216 (1982) (citation omitted).
The Second Circuit has held that in order for a prisoner to state a violation of the Equal Protection Clause, the prisoner "must demonstrate that he was treated differently than others similarly situated as a result of intentional or purposeful discrimination." Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir.2005) (citation omitted). An Equal Protection claim may be brought "by a `class of one' where a plaintiff alleges that [ ]he has been `intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.'" African Trade & Info. Ctr., Inc. v. Abromaitis, 294 F.3d 355, 362-63 (quoting Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). However, the plaintiff need not specifically identify "actual instances where others have been treated differently" in order for the equal protection claim to be sufficient. DeMuria v. Hawkes, 328 F.3d 704, 707 (2d Cir.2003).
As to Plaintiffs claim against Dr. Vadlamudi, it seems as if Lighthall disguises another Eighth Amendment claim under the Equal Protection Clause. Plaintiff fails to state a cause of action under the Equal Protection Clause since he fails to allege that he was treated differently than other inmates who were similarly situated. See generally Am. Compl. Additionally, as Plaintiff claims with a marvelously creative theory that Dr. Vadlamudi increased his punishment by failing to treat his medical conditions, nowhere does Plaintiff state that his sentence was increased by any amount of time. See generally id.
In regards to Corrections Counselor Schultz-Inman, Superintendent Lape, and Senior ASA Counselor Rowlands, construing that documents were falsified and forged, Plaintiff has failed to plead a cause of action. As noted above, Plaintiff does not claim that he was treated differently. Even though he does not have to state the disparity with specific or particular instances, it still must be pled, which Plaintiff has failed to do. Lighthall also has not shown that any dissimilar treatment was intentional or purposeful discrimination. Since Lighthall failed to plead the inescapable crux of the Equal Protection claim, it is unnecessary to determine whether any rational basis existed for a possible disparity in treatment.
Plaintiff asserts that Dr. Vadlamudi and Associate Commissioner Wright conspired by implementing policies and customs that "denied Plaintiffs grievances without investigating the facts" and the conspiracy also deprived Plaintiff of medical treatment. Am. Compl. at ¶¶ 99 & 100. Additionally, Plaintiff claims that Corrections Counselor Schultz-Inman and Senior ASA Counselor Rowlands conspired to deprive him of early release "by forging documents and relaying false information" to Superintendent Lape about Plaintiffs participation in ASAT. Id. at ¶ 89. Plaintiff also states that Superintendent Lape furthered the conspiracy by affirming the denial of Plaintiffs grievance and "acting in concert with Defendant's [sic] Schultz-Inman and Rowlands." Id. at ¶ 90.
42 U.S.C. § 1985(3) states that if two or more people conspire to deprive a person of equal protection of the laws thereby injuring the person, then that party "may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators."
The conspiracy need not be shown by an "explicit agreement" between the parties, but can be established through "the parties hav[ing] a tacit understanding to carry out the prohibited conduct." Id. (internal quotation marks and citations omitted). If the allegations of a conspiracy to deprive a person of his constitutional rights are "`conclusory, vague or general,'" then dismissal is proper. Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir.1997) (quoting Leon v. Murphy, 988 F.2d 303, 311 (2d Cir.1993)); see also Webb v. Goord, 340 F.3d 105, 111 (2d Cir.2003). However, the conspiracy does have to be "motivated by `some racial or perhaps otherwise class-based, invidious discriminatory animus behind the conspirators' action." Thomas, 165 F.3d at 146 (quoting Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1088 (2d Cir.1993)).
In this case, Plaintiff has failed to state a cause of action under § 1985. First of all, Plaintiffs assertions regarding Superintendent Lape are general and as such warrant dismissal. Plaintiff merely states that Lape affirmed grievances that had been denied. Am. Compl. at ¶ 90. Despite the general allegations as to Lape, Plaintiff has not pled that any of the conspiracies claimed to have occurred were motivated by some racial or class-based discriminatory animus. Even though no racial discrimination was alleged, as Plaintiff noted, "Marcy Correctional Facility is designated as a Medical Facility [ ] because it is set up on flat ground for medically disabled inmates, has housing units designated as wheelchair accessible and does not have stairs." Id. at ¶ 27 n. 3. In spite of Plaintiffs residence in a facility for the medically disabled, Plaintiff has also failed to allege that he was discriminated against based on medical disabilities.
Plaintiff states that Dr. Vadlamudi and Superintendent Lape violated the ADA and § 504 of the Rehabilitation Act by discriminating against him based on his disability in making a determination of whether he could "participate in therapeutic programming." Am. Compl. at ¶ 109. In addition, Plaintiff claims that Dr. Vadlamudi and Superintendent Lape discriminated against Lighthall in their refusal of Plaintiffs request for "reasonable accommodations so that he would be able to participate and complete his recommended therapeutic programs [1" Id. at ¶ 110.
The Supreme Court has stated that Title II of the ADA applies to state prisons and inmates. Pennsylvania Dep't of Corr. v. Yeskey, 524 U.S. 206, 210-12 (1998) (cited in Singleton v. Perilli, 2004 WL 74238, at *4 (S.D.N.Y. Jan. 16, 2004)). Although suit may be brought against a prison, the Second Circuit has held "neither Title II of the ADA nor § 504 of the Rehabilitation Act provides for individual capacity suits against state officials." Garcia v. State Univ. of New York Health Sciences Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir.2001).
42 U.S.C. § 12202 states that "[a] State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in [a] Federal or State court of competent jurisdiction for a violation of this [Act]." The Supreme Court has affirmed that this statute is "an unequivocal expression of Congress's intent to abrogate state sovereign immunity." Unites States v. Georgia et al., 546 U.S. 151, 126 S.Ct. 877, 879 (2006). Moreover, the Supreme Court has held that Title II of the ADA creates a private cause of action for damages for conduct that actually violates the Fourteenth Amendment as Title II validly abrogates the sovereign immunity of the states. Unites States v. Georgia et al., 126 S.Ct. at 882; see also Tennessee v. Lane, 541 U.S. 509, 518 & 520 (2004) (holding that "Congress can abrogate a State's sovereign immunity when it does so pursuant to a valid exercise of its power under § 5 of the Fourteenth Amendment to enforce the substantive guarantees of that Amendment" if "`congruence and proportionality [exists] between the injury to be prevented or remedied and the means adopted to that end.'" (citing Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976) & quoting City of Boerne v. Flores, 521 U.S. 507, 520 (1997))).
The Second Circuit has stated that "a private suit for money damages under Title II of the ADA may only be maintained against a state if the plaintiff can establish that the Title II violation was motivated by discriminatory animus or ill will due to the disability[.]" Garcia, 280 F.3d at 111-12. If a plaintiff were to sue individuals in their official capacities for money damages, the Second Circuit has held that it would in fact be a suit against New York and therefore the Eleventh Amendment would shield the individuals to the same extent as it would shield New York. Garcia, 280 F.3d at 107 (citing Will v. Michigan Dept of State Police, 491 U.S. 58, 71 (1989) & Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)). As the Supreme Court has abrogated sovereign immunity against the states under Title II, a plaintiff may bring a lawsuit against individuals in their official capacities. In addition to a lawsuit for money damages, a plaintiff may pursue prospective injunctive relief against a person in his or her official capacity. Ex parte Young, 209 U.S. 123, 155-56 (1908); Cruz v. Gomez, 202 F.3d at 595 n. 2.
Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir.2003) (citation omitted).
Additionally, to establish a cause of action under § 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), the prisoner must show:
(1) that he has a disability for purposes of the Rehabilitation Act; (2) that he was "otherwise qualified" for the benefit that has been denied; (3) that he has been denied the benefits "solely by reason" of his disability; and (4) that the benefit is part of a "program or activity receiving Federal financial assistance."
Doe v. Pfrommer, 148 F.3d 73, 82 (2d Cir.1998) (quoting Flight v. Gloeckler, 68 F.3d 61, 63 (2d Cir.1995)).
Since Title II of the ADA and § 504 of the Rehabilitation Act are so closely related, "unless one of those subtle distinctions is pertinent to a particular case, [the Second Circuit will] treat claims under the two statutes identically." Henrietta D., 331 F.3d at 272.
A disability under the ADA is defined as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such impairment." 42 U.S.C. § 12102(2) (quoted in Bragdon v. Abbott, 524 U.S. 624, 630 (1998)). The consideration of subsection A requires a three step process set forth by the Supreme Court. First, it must be determined if a plaintiffs conditions constitute a physical impairment. Bragdon, 524 U.S. at 631. The Supreme Court, looking to the Department of Health, Education and Welfare regulations to interpret the Rehabilitation Act, defines a physical or mental impairment as:
45 C.F.R. § 84.3(j)(2)(i) (1997) (quoted in Bragdon v. Abbott, 524 U.S. at 632).
Second, upon determining whether a physical or mental impairment exists, an identification must be made as to the "life activity upon which [plaintiff] relies . . . and determine whether it constitutes a major life activity under the ADA." Id. at 631. Major life activities include "`functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.'" 45 C.F.R. § 84.3(j)(2)(ii) (1997) & 28 C.F.R. § 41.31 (b)(2) (1997) (quoted in Bragdon v. Abbott, 524 U.S. at 638-39) (noting that the list is not exhaustive and that reproduction, the claimed activity, was a major life activity). The final step is to ascertain whether "the impairment substantially limited the major life activity." Id. at 631.
Plaintiff must state a cause of action under Title II of the ADA and § 504 of the Rehabilitation Act. First, it must be determined if Lighthall is a "qualified individual" within the meaning of Title II. Although Lighthall does not state with any specificity which of his conditions constitute physical impairments, it could be concluded that his heart troubles along with testicular and back problems fall within the definition of physical impairments which include cardiovascular, genito-urinary, and musculoskeletal conditions. The second step concerning the major life activity becomes difficult to address since Plaintiff again fails to identify a major life activity upon which he relies. However, reviewing his Amended Complaint, Lighthall alleges that he has trouble speaking, walking, using the bathroom, and needs assistance in caring for himself. See Am. Compl. at ¶¶ 17, 18, 19, 23, & 31. These would constitute major life activities. The last step, which Plaintiff also fails to address, is to determine whether the physical impairments substantially limit the major life activities asserted. It would be a logical conclusion that Plaintiffs physical impairments have substantially limited the life activities described in the Amended Complaint. Therefore, Plaintiff would be a "qualified individual."
Nevertheless, Plaintiffs claim for reasonable accommodations must fail. Pursuant to Title II of the ADA, "a public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity being offered." 28 C.F.R. § 35.130(b) (7). Therefore, the prison need only make reasonable modifications to policies to avoid discrimination on the basis of disability. However, since there is a lack of evidence to show discrimination, the prison would not be required to make the modifications.
Even though the prison would not have to make reasonable modifications, Plaintiff received reasonable accommodations. It must be noted, however, that Dr. Vadlamudi does not have the authority to approve or disapprove requests for reasonable accommodations and that he merely provides medical advice. Dr. Vadlamudi Aff. at ¶ 100. ASAT requires a participant to sit for an hour and a half "followed by a break," then another forty minute class is held. Id. at ¶ 105. In Plaintiff's September 14, 2004 request for reasonable accommodations to attend ASAT, he stated that he was "limited in his ability" to walk, stand, or sit for a long period of time and that he was requesting "that [he] not be held to the same physical standards and expectations as a person . . . that had no medical problems or disabilities." Am. Compl., Ex. E. The request was denied stating that Lighthall could "receive a medical excuse for a specific medical need if medically warranted." Id. Lighthall, on several occasions, did indeed request medical excuses so that he would not have to participate in ASAT. Dr Vadlamudi Aff., Ex. A at pp. 34, 36, 37, 59, & 76. Notwithstanding, conditions were placed so that Lighthall could participate in the program. On August 18, 2004, Dr. Haidershah stated that Lighthall did not have to sit for more than two hours and that he could stand every ten to fifteen minutes. Dr. Vadlamudi Aff. at ¶ 106, Ex. A at p. 24. Then, on August 30, 2004, Dr. Haidershah modified the conditions so that Lighthall could attend ASAT for up to three hours, while allowing Plaintiff to stand every ten to fifteen minutes. Pl.'s Stat. of Material Facts at ¶¶ 70 & 71; Dr. Vadlamudi Aff. at ¶ 107, Ex. A at p. 23. Plaintiff contests the discretion other officials would have on when and how he could stand. Pl.'s Stat. of Material Facts at ¶ 72. Despite Plaintiffs claim of discrimination, it would, in fact, seem as though Plaintiffs requests were granted. Contrary to his Amended Complaint, Plaintiff is receiving benefits that the normal inmate would not solely because of Plaintiffs disabilities and medical conditions.
Therefore, it is recommended that the Motion for Summary Judgment and the Motion to Dismiss be granted on this issue.
Plaintiff seeks a preliminary injunction to obtain medical treatment for sleep apnea, his vitamin B-12 deficiency, his heart condition, and physical therapy for his stroke. Prelim. Inj. Mot., Mem. of Law at pp. 9-11. As a component to this relief, Lighthall also requests reasonable accommodations to attend ASAT. Id. at p. 11. Additionally, Plaintiff seeks a preliminary injunction to enjoin the Defendants from "withholding good time credits and parole eligibility" because of Plaintiffs failure to complete ASAT. Id. at p. 16.
Plaintiff's first ground for a preliminary injunction arises out of a deliberate indifference claim under the Eighth Amendment and a claim under the ADA for reasonable accommodations. Plaintiffs second ground for a preliminary injunction arises from the Due Process Clause of the Fourteenth Amendment. As stated above, by virtue of his claims being dismissed, the preliminary injunction motion is now moot. See supra Parts II.D, II.E, & II.G.
For the reasons stated above, it is hereby recommended that the Motion for a Preliminary Injunction be denied.
For the reasons stated herein, it is hereby
RECOMMENDED, that the Motion for a Preliminary Injunction (Dkt.11) be DENIED; and it is further
RECOMMENDED, that the Cross-Motion for Summary Judgment (Dkt. No. 27) be GRANTED; and it is further
RECOMMENDED, that the Motion to Dismiss (Dkt. No. 42) be GRANTED; and it is further
RECOMMENDED, that since all the claims have been disposed of by the above Recommendations, it is further recommended that the Amended Complaint be DISMISSED in its entirety (Dkt. No. 10); and it is further
ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation and Order upon the parties to this action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have ten (10) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN (10) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir.1989)); see also 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72, 6(a), & 6(e).
NICHOLAS MARTIN, 00-A-0008, Shawangunk Correctional Facility, P.O. Box 700, Wallkill, NY 12589, pro se.
HON. ERIC T. SCHNEIDERMAN, Attorney General of the State of New York, OF COUNSEL: SHANNAN C. KRASNOKUTSKI, ESQ., Assistant Attorney General, The Capitol, Albany, NY 12224, Counsel for Defendants.
THÉRÈSE WILEY DANCKS, United States Magistrate Judge
On November 18, 2016, Defendants moved pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the amended complaint in its entirety for failure to state a claim upon which relief may be granted. (Dkt. No. 17.) Plaintiff opposed the motion. (Dkt. No. 19.) By Decision and Ordered filed September 20, 2017, Plaintiff's amended complaint was dismissed in its entirety without prejudice and with leave to file a second amended complaint. (Dkt. No. 31.)
Plaintiff's second amended complaint is before the Court for initial review. (Dkt. No. 34.) Construed liberally, Plaintiff restates the Fourteenth Amendment due process claim against Oey, Venettozzi, and Annucci, and raises Eighth Amendment claims against Defendants Corrections Officer ("C.O.") Wyckoff,
For the reasons below, the Court recommends dismissal of Plaintiff's Fourteenth Amendment due process claim against Oey, Venettozzi, and Annucci with prejudice because Plaintiff does not allege he was denied any of the procedural protections to which he was entitled under Wolff v. McDonnell, 418 U.S. 539 (1974). As to Plaintiff's newly asserted claims against Wyckoff, Wentzel, and Mitchell, mindful of the Second Circuit's instruction that a pro se plaintiff's pleadings must be liberally construed, Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008), the Court recommends that Wyckoff be directed to respond to Plaintiff's Eighth Amendment excessive force claim but that all other claims be sua sponte dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A.
Even when a plaintiff meets the financial criteria for in forma pauperis, 28 U.S.C. § 1915(e) directs that when a person proceeds in forma pauperis, "the court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
To survive dismissal for failure to state a claim, a complaint must plead enough facts to state a claim that is "plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "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. 662, 678 (2009) (citation omitted). While Rule 8(a) of the Federal Rules of Civil Procedure, which sets forth the general rules of pleading, "does not require detailed factual allegations, . . . it demands more than an unadorned, the-defendant-harmed-me accusation." Id. (internal quotation marks and citation omitted). In determining whether a complaint states a claim upon which relief may be granted, "the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
Plaintiff alleges numerous claims arising out of his confinement at Upstate Correctional Facility ("Upstate") and Clinton Correctional Facility ("Clinton"). (Dkt. No. 34.) Plaintiff was transferred to Upstate on January 23, 2015. Id. at ¶ 19. During his initial interview with a sergeant, Plaintiff requested that he not be placed in a double bunk because of a prior incident. Id. The sergeant agreed and Plaintiff was assigned to Housing Unit-B, C1-19T. Id.
Approximately thirty minutes later, Wyckoff walked to Plaintiff's cell, looked in, and yelled, "you are trying to kill yourself, huh? You are trying to commit suicide." Id. at ¶ 20. Wyckoff then "pulled the pin or activated the alarm on his radio." Id. at ¶ 21. A sergeant and several officers responded to the alarm. Id. Plaintiff was handcuffed and slammed into the sink. Id. Plaintiff was kicked and fell to the floor. Id. Wyckoff and the responding officers proceeded to kick, beat, and strike Plaintiff on his head, face, arms, legs, ankles, and back. Id. at ¶¶ 21, 41. Subsequently, the sergeant, who was standing by, yelled, "that is enough, get him the fuck up and the hell out of here." Id. at ¶ 21. Plaintiff was "pulled up from the floor by way of the handcuffs to his feet," and escorted to a medical holding cell. Id. at ¶ 22. At some point, Plaintiff lost consciousness and fell to the floor. Id.
After the incident, Plaintiff was transported to the infirmary. Id. at ¶ 22. Plaintiff fell off of the stretcher. Id. at ¶ 22. At the infirmary, the attending nurse "found nothing wrong" with Plaintiff. Id. at ¶ 24. Plaintiff was not physically examined and X-rays were not taken. Id.
On January 26, 2015, Plaintiff was interviewed by an [Office of Mental Health] physician or attending MHU staff. Id. at ¶ 28. Without any tests or examinations, it was determined that Plaintiff would remain in the MHU "to cover-up or hid (sic) the wounds and injuries that Plaintiff had sustained from the physical beating and mayhem." Id. The next day, Plaintiff was transferred to Clinton's MHU. Id. at ¶ 29. Plaintiff was provided a smock and paper slippers. Id.
Plaintiff's MHU cells consisted of a mat bolted to the floor, which was covered with a blanket. Id. The lights were extremely bright and hot, and on twenty-four hours a day. Id. His food at Clinton was never hot, mixed together, and served on a styroform tray without utensils. Id. Due to the conditions of the MHU cells at Upstate and Clinton, Plaintiff suffered from sleep deprivation. Id. at ¶ 26. Plaintiff remained in these "barbaric conditions" twenty-four hours a day until February 2, 2015, when Plaintiff was transferred back to Upstate. Id. at ¶ 31. Upon his arrival at Upstate, Plaintiff was interviewed, "cleared," and assigned to Housing Unit-B, C1-19T. Id.
On February 3, 2015, Wentzel personally served Plaintiff a "sham, false, and fictious (sic)" inmate misbehavior report relating to the January 23, 2015, incident that was authored by Wyckoff and reviewed by Mitchell. Id. The false misbehavior report charged Plaintiff with violating Rules 102.10 (threats) and 109.15 (refusing to double bunk). Id. at ¶¶ 32-34. Mitchell also "made the determination" that the false misbehavior report "should be adjudicated under the provision of 7 NYCRR Part 254 et seq., as amended." Id. at ¶ 33.
On February 6, 2015, Oey conducted Plaintiff's Tier III disciplinary hearing. Id. During the hearing, Oey did not use, or even attempt to use, the codified provision of 7 NYCRR Part 254 Section 254.6(c) to (g), as amended." Id.
Plaintiff seeks relief for violation of his constitutional rights pursuant to 42 U.S.C. § 1983, which "provides a cause of action for `the deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983); see also Myers v. Wollowitz, No. 95-CV-0272 (TJM/RWS), 1995 WL 236245, at *2 (N.D.N.Y. Apr. 10, 1995
Liberally construing the second amended complaint, Plaintiff alleges he was issued a false misbehavior report, subjected to excessive force, subjected to inhumane conditions of confinement, denied medical care, and denied procedural due process.
It is well settled that "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 (1988)); accord Pittman v. Forte, No. 9:01-CV-0100 (LEK/GLS), 2002 WL 31309183, at *5 (N.D.N.Y. July 11, 2002); see also Santana v. Olson, No. 07-CV-0098A (DGL), 2007 WL 2712992, at *2 (W.D.N.Y. Sept. 13, 2007) ("[T]he filing of a false behavior report by a correctional officer does not state a claim for relief."). Further, "[t]he filing of a false report does not, of itself, implicate the guard who filed it in constitutional violations which occur at a subsequent disciplinary hearing." Williams v. Smith, 781 F.2d 319, 324 (2d Cir. 1986) (rejecting the prisoner's "but for" argument as to guard who prepared the misbehavior report but was not involved the disciplinary hearing) (citation omitted).
Therefore, to the extent Plaintiff claims Wyckoff issued a false misbehavior report, and Mitchell, Wentzel, and Oey, "aided and abetted" Wyckoff by reviewing the report, serving the report, and being designated as the hearing officer, respectively, the Court recommends dismissing this claim with prejudice pursuant to 28 U.S.C. §§ 1915e(2) (B)(ii) and 1915A(b)(1) for failure to state a claim.
The Eighth Amendment protects prisoners from "cruel and unusual punishment" at the hands of prison officials. Wilson v. Seiter, 501 U.S. 294, 296-97 (1991); Estelle v. Gamble, 429 U.S. 97, 104 (1976). Prison officials must "ensure that inmates receive adequate food, clothing, shelter, and medical care, and must `take reasonable measures to guarantee the safety of the inmates.'" Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)).
The Eighth Amendment prohibition against cruel and unusual punishment encompasses the use of excessive force against an inmate, who must prove two components: (1) subjectively, that the defendant acted wantonly and in bad faith, and (2) objectively, that the defendant's actions violated "contemporary standards of decency." Blyden v. Mancusi, 186 F.3d 252, 262-63 (2d Cir. 1999) (internal quotation marks omitted) (citing Hudson v. McMillian, 503 U.S. 1, 8 (1992)).
The key inquiry into a claim of excessive force is "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson, 503 U.S. at 7 (citing Whitley v. Albers, 475 U.S. 312, 321-22 (1986)); see also Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam) ("[t]he Supreme Court has emphasized that the nature of the force applied is the core judicial inquiry in excessive force cases—not whether a certain quantum of injury was sustained.").
Mindful of the Second Circuit's instruction that a pro se plaintiff's pleadings must be liberally construed, Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008), Plaintiff claims Wyckoff and nine officers subjected him to excessive force on January 23, 2015, while a sergeant was present and failed to intervene. (Dkt. No. 34 at ¶¶ 40-41.) Therefore, the Court recommends that Wyckoff be directed to respond to Plaintiff's Eighth Amendment claim for excessive force.
The Eighth Amendment imposes on jail officials the duty to "provide humane conditions of confinement" for prisoners. Farmer, 511 U.S. at 832. To demonstrate that the conditions of his confinement constitute cruel and unusual punishment a plaintiff must show that (1) he was incarcerated under conditions which posed a substantial risk of serious harm, and (2) prison officials acted with deliberate indifference to his health or safety. Id. at 834; Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). "Only those deprivations denying the minimal civilized measure of life's necessities are sufficiently grave to form the basis of an Eighth Amendment violation." Wilson, 501 U.S. at 298-99.
"Sleep is critical to human existence, and conditions that prevent sleep have been held to violate the Eighth Amendment." Walker v. Schult, 717 F.3d 119, 126 (2d Cir. 2013) (citing, inter alia, Tafari v. McCarthy, 714 F.Supp.2d 317, 367 (N.D.N.Y. 2010) ("Courts have previously recognized that sleep constitutes a basic human need and conditions [including constant illumination] that prevent sleep violate an inmate's constitutional rights.")). "Requiring inmates to live in constant illumination can . . . under certain circumstances, rise to the level of an Eighth Amendment violation." Jones v. Rock, No. 9:12-CV-447 (NAM/TWD), 2013 WL 4804500, *10 (N.D.N.Y. Sept. 6, 2013) (citing, inter alia, Keenan v. Hall, 83 F.3d 1083, 1090-91 (9th Cir. 1996) (an allegation that large fluorescent lights directly in front of and behind an inmate's cell that shown into his cell twenty-four hours a day, causing him grave sleeping problems and other mental and psychological problems stated a claim of cruel and unusual punishment that could withstand a motion for summary judgment)).
The Eighth Amendment also requires that prisoners be provided with "nutritionally adequate food that is prepared and served under conditions which do not present an immediate danger to the health and well being of the inmates who consume it." Robles v. Couglin, 725 F.2d 12, 15 (2d Cir. 1983); Brown v. Eagen, No. 9:08-CV-0009 (TJM/DRH), 2009 WL 815724, *10 (N.D.N.Y. Mar. 26, 2009); Midalgo v. Bass, No. 9:03-CV-1128 (NAM/RFT), 2006 WL 2795332, *11 (N.D.N.Y. Sept. 26, 2006). "The provision of cold food, is not, by itself, a violation of the Eighth Amendment as long as it is nutritionally adequate and is prepared and served under conditions which do not present an immediate danger to the health and well being of the inmates who consume it." Waring v. Meachum, 175 F.Supp.2d 230, 239 (D. Conn. 2001) (internal quotation marks and citation omitted); see also Phelan v. Hersh, No. 9:10-CV-0011 (GLS/RFT), 2011 WL 6031940, at *12 (N.D.N.Y. Sept. 13, 2011) ("There is no constitutional right to have a hot meal every day, but only that inmates be provided nutritionally adequate food prepared under safe conditions."), report and recommendation adopted by, 2011 WL 6031071 (N.D.N.Y. Dec. 5, 2011); Brooks v. NYC DOC Comm'r, No. 14-CV-6283 (RRM/CLP), 2016 WL 4530456, at *4-5 (E.D.N.Y. Aug. 29, 2016) (sua sponte dismissing cause of action based on the failure to provide hot meals where there was no allegation that the inmate did not receive nutritionally adequate meals) (collecting cases).
Upon review, and even assuming Plaintiff has alleged facts sufficient to plausibly suggest that the conditions of his MHU confinement posed a substantial risk of serious harm to his health and safety, the second amended complaint does not allege any facts which even suggest that any Defendant was aware of the conditions, including constant illumination, let alone that they acted with deliberate indifference to or refused to take steps to address this situation. See, e.g., Gomez v. Sepiol, No. 11-CV-1017SR, 2014 WL 1575872, at *9 (W.D.N.Y. Apr. 11, 2014); see also Toliver v. Dep't of Corrs., No. 10 Civ. 6298 (LAP/JCF), 2012 WL 4510635, at *9 (S.D.N.Y. Apr. 10, 2012) (dismissing the deliberate indifference claim for failure to plead facts identifying a responsible official who acted with a sufficiently culpable state of mind).
Here, Plaintiff has not sufficiently alleged that any Defendant acted with a deliberate state of mind. See Gaston v. Coughlin, 249 F.3d 156, 157 (2d Cir. 2001). Therefore, it is recommended that Plaintiff's condition of confinement claim be dismissed without prejudice for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) (B)(ii) and 1915A(b)(1).
There are two elements to a claim that officials violated a plaintiff's right to receive adequate medical care: "the plaintiff must show that she or he had a serious medical condition and that it was met with deliberate indifference." Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir. 2009) (citation and punctuation omitted).
"[D]isagreements over medications, diagnostic techniques (e.g., the need for X-rays), forms of treatment, or the need for specialists or the timing of their intervention are not adequate grounds for a section 1983 claim." Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F.Supp.2d 303, 312 (S.D.N.Y. 2001); see also Mendoza v. McGinnis, No. 9:05-CV-1124 (TJM/DEP), 2008 WL 4239760, at *11 (N.D.N.Y. Sept. 11, 2008) ("Determinations made by medical providers within their discretion are given a `presumption of correctness' when it concerns the care and safety of patients."). Rather, the plaintiff must allege conduct that is "repugnant to the conscience of mankind" or "incompatible with the evolving standards of decency that mark the progress of a maturing society." Ross v. Kelly, 784 F.Supp. 35, 44 (W.D.N.Y. 1992) (quoting Estelle, 429 U.S. at 102, 105-06).
In the second amended complaint, Plaintiff alleges he sustained cuts, bruises, and swollen limbs as a result of the "severe physical beating he had received" on January 23, 2015. (Dkt. No. 34 at in ¶¶ 22-24.) At some point, Plaintiff lost consciousness. Id. at ¶ 24. Generally, such injuries do not amount to a condition of urgency that may produce death, degeneration or extreme pain. See, e.g., Benitez v. Straley, No. 01-CV-0181 (RCC/RLE), 2006 WL 5400078, at *3, 4, 12 (S.D.N.Y. Feb. 16, 2006) (cut on the plaintiff's lips and head, and "severe cuts" to his wrists-none of which required stitches-did not constitute a medical condition that was sufficiently serious for purposes of Eighth Amendment, even if the allegations were assumed to be true); Hickey v. City of New York, 01-CV-6506 (GEL), 2004 WL 2724079, at *16 (S.D.N.Y. Nov. 29, 2004) (cuts and bruises do not constitute sufficiently serious medical needs); Decayette v. Goord, 06-CV-0783 (TJM), 2009 WL 1606753, at *1 (N.D.N.Y. June 8, 2009) (injures limited to cuts, bruises, and swelling do not constitute sufficiently serious medical need); Rodriguez v. Mercado, 00-CV-8588, 2002 WL 1997885, at *3, 8 (S.D.N.Y. Aug. 28, 2002) (bruises to inmate's head, back and wrists, accompanied by back pain and migraines but no loss of consciousness, did not constitute a medical condition that was sufficiently serious for purposes of Eighth Amendment); Sonds, 151 F. Supp. 2d at 311 ("cut finger, even where skin is `ripped off,' . . . does not, as a matter of law, qualify as an injury severe enough to justify civil rights relief").
Even assuming Plaintiff's cuts, bruises, and swelling, along with loss of consciousness, constitute a serious medical need for purposes of an Eighth Amendment claim, Plaintiff has failed to allege any facts establishing which medical personnel were responsible or personally involved in the alleged unconstitutional medical care. As discussed above, "personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Wright, 21 F.3d at 501 (quoting Moffitt, 950 F.2d at 885); see also Gaston, 249 F.3d at 157.
Therefore, the Court recommends dismissing Plaintiff's Eighth Amendment medical indifference claim without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1).
To successfully state a claim under § 1983 for denial of due process, a plaintiff must show both the existence of a protected liberty or property interest, and that he or she was deprived of that interest without being afforded sufficient process. See Ortiz v. McBride, 380 F.3d 649, 654 (2d Cir. 2004); 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). Due process generally requires that the state afford individuals "some kind of hearing" prior to depriving them of a liberty or property interest. DiBlasio v. Novello, 344 F.3d 292, 302 (2d Cir. 2003).
An inmate's protected liberty interest is implicated where the punishment at issue imposes an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995). The duration of the challenged confinement, while not determinative, is a significant factor under Sandin. The Second Circuit generally takes the position that confinement in a SHU, without unusual conditions, for a period of 101 days will not constitute an atypical hardship, while confinement for a period of more than 305 days has been held to be atypical even if under "normal condition." Ortiz, 380 F.3d at 654; Colon v. Howard, 215 F.3d 227, 231 (2d Cir. 2000) (citing Sealey v. Giltner, 197 F.3d 578, 589-90 (2d Cir. 1999)).
"The due process protections afforded inmates facing disciplinary hearings that affect a liberty or property interest include advance written notice of the charges, a fair and impartial hearing officer, a hearing that affords the inmate the opportunity to call witnesses and present documentary evidence, and a written statement of the evidence upon which the hearing officer relied in making his determination." Sira v. Morton, 380 F.3d 57, 69 (2d Cir. 2004) (citing, inter alia, Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974)). In addition, the hearing officer's findings must be supported by "some" "reliable evidence." Id. (citing, inter alia, Superintendent v. Hill, 472 U.S. 445, 455 (1985)).
In the second amended complaint, Plaintiff alleges Oey sentenced him to serve 60 days in the SHU. (Dkt. 34 at ¶ 37.) As set forth above, the Second Circuit generally takes the position that normal confinement in a segregated housing unit of 101 days or less does not constitute an "atypical and significant hardship" under Sandin. Colon, 215 F.3d at 231. In this case, however, Plaintiff argues for the aggregation of his various SHU sentences, amounting to 330 days of consecutive SHU confinement. (Dkt. No. 34 at ¶ 57.)
As set forth above, to state a claim under § 1983, a plaintiff must allege that the conduct deprived him or her of a right guaranteed under the Constitution of the United States. Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999) (citing Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993)). In the second amended complaint, Plaintiff claims Oey conducted Plaintiff's February 6, 2015, disciplinary hearing in violation of DOCCS rules and regulations. (Dkt. No. 34 at ¶ 36.) Further, when Oey "was asked about it, she was from the outset outright arrogrant (sic), haughty, beligerent (sic), hostile, bias, aggressive and bigotry (sic)." These allegations do not state a plausible Fourteenth Amendment due process claim.
First, as this Court explained in the July 19, 2017, Report-Recommendation (Dkt. No. 28), whether prison regulations were followed precisely is not a basis to conclude that any constitutional rights have been violated. See Pollnow v. Glennon, 757 F.2d 496, 501 (2d Cir. 1985). An alleged violation of prison directives or regulations does not give rise to a federal claim, because "[f]ederal constitutional standards rather than state law define the requirements of procedural due process." Russell v. Coughlin, 910 F.2d 75, 78 n.1 (2d Cir.1990) (citations omitted); see also Hyman v. Holder, No. 96 Civ. 7748, 2001 WL 262665, at *6 (S.D.N.Y. Mar. 15, 2001). Thus, "regardless of state procedural guarantees, the only process due an inmate is that minimal process guaranteed by the Constitution, as outlined in Wolff. . . ." Shakur v. Selsky, 391 F.3d 106, 119 (2d Cir. 2004).
Second, although an inmate does have the right to an impartial hearing officer, the degree of impartiality required of prison hearing officers does not rise to the level required of judges generally. Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir. 1989) (citations omitted). Further, because prison officials serving as hearing officers "enjoy a rebuttable presumption that they are unbiased," Plaintiff's conclusory allegation of "bias," without more, fails to state a due process claim. Rodriguez v. Selsky, No. 9:07-CV-0432 (LEK/DEP), 2011 WL 1086001, at *11 (N.D.N.Y. Jan. 25, 2011) (citation omitted). Indeed, "[a]n inmate's own subjective belief that the hearing officer was biased is insufficient to create a genuine issue of material fact." Johnson v. Fernandez, No. 9:09 CV-626 (FJS/ATB), 2011 WL 7629513, at *11 (N.D.N.Y. Mar. 12, 2011) (citing Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir. 1989)). Additionally, "disagreement with rulings made by a hearing officer does not constitute bias." Johnson v. Doling, No. 9:05-CV-376 (TJM/RFT), 2007 WL 3046701, at *10 (N.D.N.Y. Oct. 17, 2007) (citing Dumpson v. Rourke, No. CIVA96CV621 (RSP/GJD), 1997 WL 610652, at *6 (N.D.N.Y. Sept. 26, 1997) (stating "[t]he fact that the hearing officer did not decide in the plaintiff's favor does not make him biased in the constitutional sense")).
As to Plaintiff's allegations against Annucci and Venettozzi, Plaintiff claims they "knew or should have known" that Plaintiff's due process rights were violated at the hearing and yet they refused and failed to correct Oey's "wrongdoing" on appeal. Id. at ¶ 53. Here, because the Court finds Oey did not violate Plaintiff's constitutional rights, there was no "misconduct" for Annucci and Venettozzi to "correct" on appeal. See, e.g., Toole v. Connell, No. 9:04-CV-0724 (LEK/DEP), 2008 WL 4186334, at *1, 7 (N.D.N.Y. Sep. 10, 2008) (supervisory defendant cannot be liable for failing to investigate or correct conduct that has already been found to be not actionable under § 1983); Linares v. Mahunik, No. 9:05-CV-0625 (RFT/GLS), 2006 WL 2595200, at *11 (N.D.N.Y. Sept. 11, 2006) (finding the plaintiff could not "sustain a supervisory liability claim as there was no wrong for [supervisor-defendant] to remedy since there [was] no constitutional violation").
Lastly, Plaintiff claims Annucci and Venettozzi violated his due process rights because they "failed and refused to follow-up and comply with the Judicial mandate to insure (sic) that [Plaintiff's] rehearing was in fact timely[.]" Id. at ¶ 55. The Court construes this claim as an alleged violation of the so-called "fourteen-day rule" set forth in 7 N.Y.C.R.R. § 251-5.1. However, as discussed above, this allegation, without more, is not sufficient to state a federal constitutional claim. See Shakur, 391 F.3d at 119 ("regardless of state procedural guarantees, the only process due an inmate is that minimal process guaranteed by the Constitution, as outlined in Wolff . . ."); see, e.g., Bolanos v. Coughlin, No. 91 CIV. 5330, 1993 WL 762112, at *14 (S.D.N.Y. Oct. 15, 1993) (stating that an inmate does not have a federally created right to have his disciplinary hearing commenced within a certain time); see also Barnes v. Henderson, 628 F.Supp.2d 407, 413 (W.D.N.Y. 2009) (collecting cases) (stating that the failure to provide a speedy hearing under the state regulation is not enough to establish a federal due process violation).
In the second amended complaint, Plaintiff alleges that his rehearing was not timely commenced but does not allege that the delay was unreasonable or that the delay resulted in a constitutional violation. Further, documents attached to the second amended complaint indicate Venettozzi "cancelled the rehearing and the matter [was] completely expunged from [Plaintiff's] records" because "the facility failed to timely conduct the ordered rehearing." (Dkt. No. 34-1 at 18.)
Based on the forgoing, the Court recommends that Plaintiff's Fourteenth Amendment due process claim against Oey, Annucci, and Venettozzi be dismissed pursuant to 28 U.S.C. §§1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a claim. Because Plaintiff has already been afforded two opportunities to amend this claim, and the allegations in the second amended complaint, liberally construed, give no indication that a valid Fourteenth Amendment due process claim might be stated if Plaintiff were provided another opportunity to amend, see Gomez, 171 F.3d at 795, the Court recommends that the dismissal against Oey, Venettozzi, and Annucci be with prejudice.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report.
Nicholas Martin, Wallkill, NY, pro se.
Thomas J. McAvoy, Senior, U.S. District Judge
Plaintiff filed objections to the Report-Recommendation. 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 objection is made."
Having reviewed the record de novo and having considered the issues raised in the Plaintiff's objections, this Court has determined to accept and adopt the recommendations of Magistrate Judge Dancks for the reasons stated in the Report-Recommendation.
Accordingly:
The Plaintiff's objections to the Report-Recommendation, dkt. # 36, are hereby OVERRULED. The Report-Recommendation, dkt. # 35, is hereby ACCEPTED. According:
Joseph Parks, Wallkill, NY, pro se.
Hon. Eric T. Schneiderman, Attorney General for the State of New York, Aaron M. Baldwin, Esq., of Counsel, Albany, NY, for Defendants.
GEORGE H. LOWE, United States Magistrate Judge.
Plaintiff, who is now and was at all relevant times an inmate at Shawangunk Correctional Facility ("Shawangunk"), was raised as a Jehovah's Witness, but did not fully accept the religion until 2000 or 2001. (Dkt. No. 51-8 at 6:6-11.
On February 27, 2007, Plaintiff attempted to mail a letter and photograph to a personal ad service. (Dkt. No. 51-4 at 2 ¶ 6.) The photograph depicted Plaintiff, clad in a shirt and red pants, sitting on a chair. (Dkt. No. 51-6; Dkt. No. 51-8 at 16:14-18.) Plaintiffs feet were placed wide apart and his elbows were resting on his thighs. (Dkt. No. 51-6.) His hands were pressed together with his fingertips pointed downward and his thumbs meeting at the top to form a heart or diamond shape. Id. At his deposition, Plaintiff testified that he was not praying or meditating when the picture was taken. (Dkt. No. 51-8 at 28:14-16.) Rather, he "was just trying to relax and in the course of just trying to relax," he made the hand sign. Id. at 28:14-23. In the letter that accompanied the photograph, Plaintiff indicated that he wanted "to begin a good friendship" with "someone special" and hoped to "find my ideal woman who can complete me . . . as I complete her." (Dkt. No. 51-5 at 7.) In the letter, Plaintiff referred to himself several times as a "spiritual" person, but did not mention that he is a Jehovah's Witness. (Id.; Dkt. No. 51-8 at 36:3-7.) At his deposition, Plaintiff testified that he included the photograph with the letter to "have a resemblance of me. . . . [t]o show what I looked like." (Dkt. No. 51-8 at 16:19-23.) In a declaration submitted in opposition to Defendants' motion for summary judgment, Plaintiff states that he "included the photo, not only to show what I look like but to attract someone who practices the same religion I do." (Dkt. No. 55 at 36.)
There is no written DOCS policy, procedure, or directive governing specifically how to identify gang insignia or materials. (Dkt. No. 51-3 at 3 ¶ 12.) Rather, staff members such as Defendant Franco receive training from the DOCS Central Intelligence/Special Investigations Unit. Id. ¶ 13. During this training, staff hear oral instruction and see examples of gang signs and symbols. Id. ¶ 15. The training includes "information on particular groups, such as `The United Bloods Nation,' also known as `The Bloods,' which is an unauthorized organization that is active and making an adverse impact within DOCS." Id. at 4 ¶ 16. Staff learn that "The Bloods original color is RED . . . Members' display of hand signs varies depending on the Set they belong to. The most common hand sign is indicated by making a circle with the thumb and index finger, touching at the finger's tip and extending the remainder of the fingers." Id. ¶ 17 (emphasis in original).
Based on this training, Defendant Franco concluded that the photograph depicted Plaintiff making a Bloods hand sign. Id. at 5 ¶ 22. He reached that conclusion because of the "manner in which the plaintiff is holding his hands together, facing downwards, in a heart or triangular shaped fashion with the fingers and thumbs touching" and because Plaintiff was wearing red pants in the picture. Id. at ¶¶ 23-24.
Accordingly, Defendant Skwera wrote a misbehavior report charging Plaintiff with, inter alia, violating DOCS Rule 105.12. (Dkt. No. 51-4 at 2 ¶ 10.) That rule, which has since been repealed, stated that "an inmate shall not engage in or encourage others to engage in unauthorized organizational activities or meetings, or display, wear, possess, distribute or use unauthorized organizational insignia or materials." N.Y. Comp.Codes R. & Regs. tit. 7, § 270.2 (2004).
The disciplinary hearing regarding the misbehavior report was held on March 2 and 7, 2007. (Dkt. No. 51-5 at 3, 13.) Defendant Lt. G. Gardner served as the hearing officer. Id. at 3. Plaintiff alleges that Defendant Gardner "created a hostile environment, using intimidation tactics of taunting and facial gestures." (Dkt. No. 1 at 8 ¶ 16.)
Plaintiff told Defendant Gardner that he is a religious man, that there is a religious justification for the hand gesture, and that because he had "been trained for a period of time within my meditation . . . I reacted when trying to get calm for the picture." Id. at 12, 14.
Defendant Gardner found Plaintiff guilty of the unauthorized organizations and activities charge. Id. at 16. He stated that he relied on Defendant Skwera's report, Plaintiffs testimony that the hand sign was a form of meditation, Defendant Franco's testimony "verifying that the hand sign is that of an unauthorized organization known as the Bloods," and the photograph itself in reaching his decision. Id. at 17. He imposed a penalty of fifteen days' keeplock, thirty days' loss of packages and events, and fifteen days' loss of commissary and phone privileges. Id. He stated that the reason for his decision was "to impress upon the inmate that unauthorized organizations or displays with the hand signs are prohibited." Id.
Plaintiff appealed Defendant Gardner's decision. (Dkt. No. 51-5 at 18.) In his appeal, he stated that the hand sign he made in the photograph was "an unconscious gesture that is relevant to my religious beliefs . . . so to find me guilty is to infringe on my Constitutional rights that guarantee[] me freedom of religion, and freedom of speech and equal protection under the law." Id. at 40. Defendant John Maly, acting as Defendant Superintendent Joseph T. Smith's designee, affirmed the disposition on March 21, 2007. Id. at 18.
On March 12, 2007, Plaintiff filed a grievance with Defendant J. Krom, the facility's inmate grievance supervisor, alleging that Defendant Gardner was biased, had deprived Plaintiff of due process, and had deprived Plaintiff of the free exercise of his religion. (Dkt. No 1 at 9 ¶ 21.) Plaintiff also alleged that Defendant Smith allowed "a pattern of unchecked, unconstitutional conduct to take place at the hearings . . . due to an unwritten Shawangunk policy promoting, encouraging and/or condoning such." Id. When Krom did not reply within three weeks, Plaintiff filed an appeal of his grievance with Defendant Smith. Id. ¶ 22. When Plaintiff did not receive a reply within four weeks, he appealed to Defendant Thomas G. Egan, the facility's inmate grievance director. Id. at 9-10 ¶ 23. Plaintiff did not receive a response. Id. at 10 ¶ 24.)
Defendants moved for judgment on the pleadings. (Dkt. No. 20.) As a result of that motion, the Court dismissed six of Plaintiffs claims. (Dkt. No. 30.) Plaintiffs sole remaining claims are that Defendants violated his religious rights under the First Amendment and RLUIPA and retaliated against him for exercising his religious rights. Defendants now move for summary judgment of those claims. (Dkt. No. 51.) Plaintiff has opposed the motion. (Dkt. No. 55.) Defendants have filed a reply. (Dkt. No. 56-2.)
Under Federal Rule of Civil Procedure 56, 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). 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, 272-73 (2d Cir.2006). Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating that genuine issues of material fact exist. Id. The nonmoving party must do more than "rest upon the mere allegations . . . of his pleading" or "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, a dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether a genuine issue of material
A defendant may move to dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) on the ground that the complaint fails to state a claim upon which relief can be granted. In order to state a claim upon which relief can be granted, a complaint must contain, inter alia, "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a) (2). The requirement that a plaintiff "show" that he or she is entitled to relief means that a complaint "must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S. ____, ____, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)) (emphasis added). "Determining whether a complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial experience and common sense . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not shown—that the pleader is entitled to relief." Id. at 1950 (internal citation and punctuation omitted).
"In reviewing a complaint for dismissal under Rule 12(b) (6), the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiffs favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.1994) (citation omitted). Courts are "obligated to construe a pro se complaint liberally." Harris v. Mills, 572 F.3d 66, 72 (2d Cir.2009). However, "the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S.Ct. at 1949.
Plaintiff claims that Defendants violated his rights under RLUIPA. (Dkt. No. 1 at 11.) RLUIPA provides that
42 U.S.C. § 2000cc-1(a).
Defendants argue that Plaintiffs RLUIPA claim should be dismissed because (1) Plaintiff was not disciplined for engaging in a "religious exercise"; (2) even if Plaintiff was engaged in a religious exercise, it was not substantially burdened by the misbehavior report and disciplinary sentence; (3) Defendants acted in furtherance of a compelling governmental interest and used the least restrictive means of furthering that interest; and (4) RLUIPA does not authorize money damages. (Dkt. No. 51-10 at 6-13.)
Defendants argue that they are entitled to judgment because Plaintiff has not raised a triable issue of fact that he was disciplined for engaging in a "religious exercise." (Dkt. No. 51-10 at 8-9.) I find that Plaintiff has raised a triable issue of fact on this issue.
Under RLUIPA, a "religious exercise" is "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." 42 U.S.C. § 2000cc-5(7)(A). Defendants argue that Plaintiff was not engaged in an "exercise" because "[P]laintiff admits that he was neither praying nor meditating in the photograph that gave rise to the misbehavior report." (Dkt. No. 51-10 at 8.)
The evidence shows that while Plaintiff was not actively praying or meditating in the photograph, he has maintained since the incident occurred that his hand gesture in the photograph was the result of his prayer practice. At his disciplinary hearing, he told Defendant Gardner that because he had "been trained for a period of time within my meditation," he "reacted" with the hand sign "when trying to get calm for the picture." (Dkt. No. 51-5 at 12, 14.) Plaintiff testified at his deposition that he "fell into [his] meditation gesture unconsciously" as he was "trying to relax for the picture." (Dkt. No. 51-8 at 29:7-11.) Defendants have not cited, nor can I find, any case law discussing whether such an unconscious manifestation of one's faith (which seems akin to the practice of some Catholics to reflexively cross themselves in moments of stress) is an "exercise" within the meaning of RLUIPA. Because the burden on a motion for summary judgment is on the moving party, and because I must view the facts in the light most favorable to Plaintiff, I therefore find that Defendants have not established as a matter of law that Plaintiff was not engaged in an "exercise" of religion.
Defendants argue that even if Plaintiff was engaged in an "exercise," it was not "religious" because (1) the Jehovah's Witness religion does not require adherents to assume any special position when praying; and (2) the way Plaintiff is holding his hands in the photograph is different than the hand poses depicted in the book from which Plaintiff says he adopted the prayer practice. (Dkt. No. 51-10 at 8-9.)
Courts have routinely expressed reticence about deciding, on summary judgment, whether or not an individual's beliefs are sincere. As the Second Circuit has noted, "the judiciary is singularly ill-equipped to sit in judgment on the verity of an adherent's religious beliefs" because the "[s]incerity analysis is exceedingly amorphous, requiring the factfinder to delve into the claimant's most veiled motivations. . . ." Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir.1984).
The fact that the prayer gesture employed by Plaintiff is not mandated by any central authority of the Jehovah's Witness faith is immaterial to the sincerity analysis. As the Supreme Court has noted:
Thomas v. Review Bd. of the Indiana Empl. Sec. Div., 450 U.S. 707, 715-16, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981) (holding that one Jehovah's Witness's belief that his religion prevented him from working in area of factory that produced tank turrets was sincere, despite fact that another Jehovah's Witness believed that such work did not violate the faith).
Similarly, I cannot conclude as a matter of law that Plaintiffs conduct was not sincere because his hand position in the photograph did not perfectly match the pictures in the book from which he adopted the pose. As a matter of fact, of course, a reasonable juror could consider this issue and conclude that the imperfection of the hand pose is evidence that Plaintiffs assertion is insincere and that he was, in fact, making a gang sign. But a reasonable juror could also conclude that the imperfection of the hand pose supports Plaintiffs claim that he unconsciously assumed the position, honed from years of using it to pray five or six times per day, in order to relax. But as a matter of law, I cannot credit one interpretation over the other. The Supreme Court has cautioned that the "religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit . . . protection." Thomas, 450 U.S. at 714. Further, "[c]ourts should not undertake to dissect religious beliefs because the . . . [plaintiff's] beliefs are not articulated with the clarity and precision that a more sophisticated person might employ." Id. at 715.
Therefore, I find that Plaintiff has raised a triable issue of fact that he was engaged in a "religious exercise."
RLUIPA prohibits only government action that places a "substantial burden" on religious exercise. 42 U.S.C. § 2000cc-1(a). Defendants argue that even if Plaintiff was disciplined for engaging in a religious exercise, that punishment did not place a "substantial burden" on Plaintiff. (Dkt. No. 51-10 at 9-11.) I find that Plaintiff has raised a triable issue of fact on this issue.
A prisoner's sincerely held religious belief is substantially burdened "where the state puts substantial pressure on an adherent to modify his behavior and to violate his beliefs." Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir.1996) (punctuation omitted).
Defendants argue that Plaintiffs religious exercise has not been substantially burdened because Plaintiff can still pray in the privacy of his living quarters or "in designated religious areas whenever feasible as determined by the Superintendent" and because "Plaintiff is allowed to use . . . meditation poses . . . while praying. . . ." (Dkt. No. 51-10 at 10.) Defendants cite Defendant Franco's declaration as support for the latter assertion. In the cited paragraph, Defendant Franco declares that "Plaintiff would be allowed to use those `meditation poses' depicted in his Complaint while praying . . ., which poses are different from that unauthorized group symbol made by the plaintiff in the photograph. . . ." (Dkt. No. 51-3 at 6 ¶ 33, emphasis added.) In other words, Defendants argue that Plaintiffs religious exercise has not been substantially burdened because he can still pray, but only if he does it in designated areas and only so long as he does not use the prayer gesture he unconsciously assumed on February 27, 2007. I cannot find as a matter of law that such restrictions do not place substantial pressure on Plaintiff to modify his behavior and to violate his beliefs. A reasonable juror could conclude that this pressure was substantial, and another reasonable juror could conclude that this pressure was not substantial. Therefore, Plaintiff has raised a triable issue of fact that Defendants substantially burdened his religious exercise.
Under RLUIPA, government officials may substantially burden an inmate's religious exercise if they are motivated by a compelling governmental interest and use the least restrictive means of furthering that interest. 42 U.S.C. § 2000cc-1(a). The burden of proving this element is on Defendants. Redd v. Wright, 597 F.3d 532, 536 (2d Cir.2010) ("[T]he state may overcome a RLUIPA claim by demonstrating that the challenged policy or action furthered a compelling governmental interest and was the least restrictive means of furthering that interest.").
Id. ¶ 6.
"Prison security and penological institutional safety goals are indeed a most compelling governmental interest . . ." Campos v. Coughlin, 854 F.Supp. 194, 207 (S.D.N.Y.1994) (Sotomayor, J.); see also Orafan v. Goord, 411 F.Supp.2d 153, 160 (N.D.N.Y.2006), rev'd on other grounds, Orafan v. Rashid, 249 Fed. App'x 217 (2d Cir.2007). Courts must be sensitive to these interests and apply RLUIPA's "compelling interest" standard "with `due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security, and discipline, consistent with consideration of costs and limited resources.'" Cutter v. Wilkinson, 544 U.S. 709, 723, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005). This, however, does not end the inquiry.
In Jova v. Smith, 582 F.3d 410, 415 (2d Cir.2009), the Second Circuit noted with approval that "[o]ther circuits have . . . recognized that the state may not merely reference an interest in security . . . in order to justify its actions. . . ." Indeed, "inadequately formulated prison regulations and policies grounded on mere speculation, exaggerated fears, or post-hoc rationalizations will not suffice to meet [RLUIPA's] requirements." Id. at 416 (quoting 146 Cong. Rec. S7775 (daily ed. July 27, 2000) (joint statement of Sens. Hatch and Kennedy on RLUIPA)). The Second Circuit also noted with approval that "[o]ther circuits . . . have required that, for a state to demonstrate that its practice is the least restrictive means, it must show that it `actually considered and rejected the efficacy of less restrictive measures before adopting the challenged practice.'" Id. (quoting Warsoldier v. Woodford, 418 F.3d 989, 999 (9th Cir.2005)). As another district court has noted, Jova thus suggests that Defendants are required to present evidence of having considered less restrictive practices. Forde v. Baird, 720 F.Supp.2d 170, 180 (D.Conn.2010).
Id. ¶ 10.
Although this is a close question, I find that Defendant Franco's declaration adequately meets Defendants' burden of showing, as a matter of law, that they had a compelling interest and used the least restrictive means to further that interest when they disciplined Plaintiff for attempting to mail a photograph of himself wearing red pants and making a hand gesture that resembled one used by the Bloods. If Plaintiff had been punished simply for making the hand sign, particularly in his cell or in some other area designated for inmate prayer, I would likely recommend that the Court deny Defendants' motion for summary judgment. However, Plaintiff was attempting to disseminate the photograph and, in DOCS' experience, gang members sometimes use hidden messages in newspaper classified advertisements to communicate. (Dkt. No. 51-3 at 2 ¶ 6.) Accordingly, applying the due deference I must give to prison administrators in establishing necessary procedures to maintain security, I recommend that the Court grant Defendants' motion for summary judgment and dismiss Plaintiffs RLUIPA claim.
Defendants argue that even if Plaintiff had raised a triable issue of fact and could proceed to trial on his RLUIPA claim, he would be entitled only to injunctive relief. (Dkt. No. 51-10 at 13.) Defendants are correct.
RLUIPA allows prevailing plaintiffs to recover "appropriate relief against a government." 42 U.S.C. § 2000cc-2(a). The United States Courts of Appeals are divided on the issue of whether "appropriate relief" includes money damages. Compare Madison v. Commonwealth of Virginia, 474 F.3d 118, 131-32 (4th Cir.2006) (money damages not available) with Smith v. Allen, 502 F.3d 1255, 1265 (11th Cir.2007) (money damages available). The Second Circuit has not resolved the issue. The consensus of opinion among district courts in the Second Circuit is that RLUIPA does not authorize suits for money damages. See Pugh v. Goord, 571 F.Supp.2d 477, 506-09 (S.D.N.Y.2008). The issue is currently pending before the Supreme Court in Sossamon v. Texas, 560 F.3d 316 (5th Cir.2009), cert. granted ___ U.S. ___, 130 S.Ct. 3319, 176 L.Ed.2d 1218 (2010) (argued Nov. 2, 2010). In the event that the District Court concludes that Plaintiff has raised a triable issue of fact as to his RLUIPA claim and, at that time, the Supreme Court has not yet issued a decision in Sossamon, I would recommend that the Court allow only Plaintiffs RLUIPA claim for injunctive relief to proceed.
Under the Free Exercise Clause of the First Amendment, a prison regulation or individualized decision to deny a prisoner the ability to engage in a religious exercise "is judged under a reasonableness test less restrictive than that ordinarily applied [to burdens on fundamental rights]: a regulation that burdens a [prisoner's] protected right passes constitutional muster if it is reasonably related to legitimate penological interests." Salahuddin v. Goord, 467 F.3d 263, 274 (2d Cir.2006) (quoting O'Lone v. Estate of Shabazz, 482 U.S. 342, 349, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987) (punctuation omitted).
To establish a free exercise claim, a prisoner "must show at the threshold that the disputed conduct substantially burdens
Here, as discussed above, Defendants have established that they are entitled to judgment under the strict
Plaintiff claims that Defendants retaliated against him for exercising his right to freely exercise his religion. (Dkt. No. 1 at 11.)
Claims of retaliation find their roots in the First Amendment. See Gill v. Pidlypchak, 389 F.3d 379, 380-81 (2d Cir.2004). Central to such claims is the notion that in a prison setting, corrections officials may not take actions that would have a chilling effect upon an inmate's exercise of First Amendment rights. See Gill, 389 F.3d at 381-383. Because of the relative ease with which claims of retaliation can be incanted, however, courts have scrutinized such retaliation claims with particular care. See Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983). As the Second Circuit has noted,
Dawes v. Walker, 239 F.3d 489, 491 (2d Cir.2001) (citations omitted), overruled on other grounds, Swierkewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002).
To prevail on a retaliation claim under 42 U.S.C. § 1983, a plaintiff must prove by the preponderance of the evidence that: (1) the speech or conduct at issue was "protected"; (2) the defendants took "adverse action" against the plaintiff —namely, action that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights; and (3) there was a causal connection between the protected speech and the adverse action—in other words, that the protected conduct was a "substantial or motivating factor" in the defendants' 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, 50 L.Ed.2d 471 (1977); Gill, 389 F.3d at 380 (citing Dawes v. Walker, 239 F.3d 489, 492 (2d. Cir.2001)).
Defendants argue that Plaintiffs conduct was not protected because Plaintiff "was not praying or meditating in the photograph which led to the misbehavior report." (Dkt. No. 51-10 at 11-12.) As discussed above, Plaintiff has raised a triable issue of fact that he was engaged in a religious exercise in the photograph. Therefore, I find Defendants' argument regarding the first prong to be without merit.
Regarding the second prong, Defendants concede that "the misbehavior report constitutes adverse action . . ." (Dkt. No. 51-10 at 11.)
Regarding the third prong:
Vega v. Artus, 610 F.Supp.2d 185, 207 (N.D.N.Y.2009) (citations and punctuation omitted) (Suddaby, J.).
Here, there is simply no evidence in the record from which a reasonable juror could conclude that Defendants were substantially motivated by Plaintiffs religion. Defendants Franco and Skwera have both filed declarations stating that they were not aware of Plaintiffs religion until they heard him testify at the disciplinary hearing. (Dkt. No. 51-3 at 5-6 ¶¶ 27-30; Dkt. No. 51-4 at 4-5 ¶¶ 21-25.) Although Defendant Gardner was aware of Plaintiffs faith when he found Plaintiff guilty of the disciplinary charge, there is no evidence in the record that he was substantially motivated by Plaintiffs religion to punish Plaintiff. Although the complaint characterizes Defendant Gardener's conduct at the hearing as "hostile" and "intimidating" (Dkt. No. 1 at 8 ¶ 16), nothing in the transcript indicates that Defendant Gardener said anything derogatory about Jehovah's Witnesses or people who use hand poses to pray. As for the other defendants, Plaintiff asserts that they must have known about his religion because, when he became a Jehovah's Witness, he filled out a form designating Jehovah's Witness as his religion. (Dkt. No. 51-8 at 6:2-20.) However, there is no evidence that any of the named defendants were aware of that form. Accordingly, I find that Plaintiff has not raised a triable issue of fact that there was a causal connection between his protected conduct and the adverse action. Therefore, I recommend that the Court grant Defendants' motion and dismiss Plaintiffs retaliation claim.
Under Second Circuit precedent, "`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) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir.1991)). In order to prevail on a § 1983 cause of action against an individual, a plaintiff must show some tangible connection between the unlawful conduct and the defendant. Bass v. Jackson, 790 F.2d 260, 263 (2d Cir.1986). If the defendant is a supervisory official, a mere "linkage" to the unlawful conduct through "the prison chain of command" (i.e., under the doctrine of respondeat superior) is insufficient to show his or her personal involvement in that unlawful conduct. Polk County v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981); Richardson v. Goord, 347 F.3d 431, 435 (2d Cir.2003); Wright, 21 F.3d at 501; Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir.1985). In other words, supervisory officials may not be held liable merely because they held a position of authority. Black v. Coughlin, 76 F.3d 72, 74 (2d Cir.1996). Rather, supervisory personnel may be considered "personally involved" if they (1) directly participated in the violation, (2) failed to remedy that violation after learning of it through a report or appeal, (3) created, or allowed to continue, a policy or custom under which the violation occurred, (4) had been grossly negligent in managing subordinates who caused the violation, or (5) exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that the violation was occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995).
Plaintiff claims that Defendant Smith violated his constitutional rights by (1) designating Plaintiffs appeal of the disciplinary decision to Defendant Maly, who then affirmed the decision (Dkt. No. 1 at 9 ¶¶ 19-20); (2) ignoring Plaintiffs grievance (Dkt. No. 1 at 9-10 ¶¶ 22-23); and (3) allowing "a pattern of unchecked, unconstitutional conduct to take place at the hearings . . . due to an unwritten Shawangunk policy promoting, encouraging and/or condoning such." (Dkt. No 1 at 9 ¶ 21.) Even if Plaintiff had raised a triable issue of fact as to his substantive claims, he has not raised a triable issue of fact that Defendant Smith was personally involved.
Regarding the appeal, the evidence shows that Defendant Smith personally took no action at all. Even if he had handled Plaintiffs appeal personally rather than designating the task to Defendant Maly, courts have held that "merely affirming the hearing determination is not a sufficient basis to impose liability." Woodward v. Mullah, No. 08-CV-463A, 2009 WL 4730309, at *2-3 (W.D.N.Y. Dec.7, 2009).
Finally, Plaintiff has not produced any evidence of "a pattern of unchecked, unconstitutional conduct" at hearings, much less any that occurred "due to an unwritten Shawangunk policy promoting, encouraging and/or condoning such." (Dkt. No 1 at 9 ¶ 21.) Therefore, Plaintiff has not raised a triable issue of fact that Defendant Smith was personally involved in any alleged constitutional violations.
Plaintiffs only claim against Defendant Maly is that he affirmed the disciplinary conviction. (Dkt. No. 1 at 9 ¶¶ 19-20.) As discussed above, such a claim is insufficient to establish personal involvement unless there is evidence that the defendant was proactively involved in the appeal. Here, there is no such evidence regarding Defendant Maly. Therefore, Plaintiff has not raised a triable issue of fact that Defendant Maly was personally involved in any alleged constitutional violations.
Plaintiffs only claim against Defendants Krom and Egan is that they ignored his grievance. (Dkt. No. 1 at 9-10 ¶¶ 22-24.) As discussed above regarding Defendant Smith, this is insufficient to establish personal involvement. Therefore, Plaintiff has not raised a triable issue of fact that Defendants Krom and Egan were personally involved in any alleged constitutional violations.
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.
YANTHIS, Magistrate J.
Plaintiff Laura Rambaldi signed and submitted a City Liability Waiver at Mount Vernon Police Headquarters in October 1995, received rabies vaccinations in December 1995, and together with defendants Jean Johnson and Peggy Slattery, began to volunteer at the Mount Vernon Animal Shelter ("the Shelter"). In 1996, Johnson and Slattery became members of the Mount Vernon Animal Shelter Task Force ("the Task Force"), formed by Mayor Ernest Davis to facilitate communication between the Shelter and the City; plaintiff was not a member of this Task Force. In 1998, defendant Madden became the officer in charge of the Shelter and its volunteers.
From 1995 to 1999, in her capacity as a Shelter volunteer, plaintiff brought animals to the veterinarian for medical care, placed advertisements to promote animal adoptions, exercised and walked the dogs, administered medicines and tended to injuries, and fed the animals. Madden alleges that during this period, plaintiff also interfered with adoptions, criticized and questioned Madden's authority, particularly with regard to decisions to euthanize certain animals, disobeyed Madden's instructions, declined to perform all the duties required of Shelter volunteers, such as cleaning, criticized Shelter practices in front of members of the public, and disregarded Shelter rule and guidelines.
On February 10, 1999, plaintiff sent a get-well card to Assistant Dog Warden Tom Smith, who was facing amputation surgery at Mount Vernon Hospital. In this card, plaintiff wrote the following words, which she characterizes as a joke: "Hope you get well soon. Sorry to hear about your toe. At least it's not your dick. Best regards, Mayor Davis." Plaintiff later relayed the contents of the card to Madden. The same day, the Task Force held a vote, and decided to dismiss plaintiff as a Shelter volunteer, based on the card she wrote to Tom Smith— which they deemed to be an act of forgery—and her prior violations of Shelter rules. The Task Force sent plaintiff a letter dated February 15, 1999, and signed by Task Force members including Slattery and Johnson, informing her that her dismissal was based upon "your disregard for the `Mt. Vernon Animal Shelter Volunteer Guidelines & Rules' and your highly damaging actions of forgery pertaining to an Animal Shelter worker." Plt.'s Exh. V.
Plaintiff entered the Shelter again on November 21, 1999. She claims that Madden took her by the arm and removed her from the building, locking the doors behind her. The police told plaintiff to go to Police Headquarters to file a Civilian Complaint, and she did so. On December 5, 1999, plaintiff entered the Shelter and went to the kennels to see the animals, despite a Shelter worker informing her that she was not allowed to be there. When the worker called the police, plaintiff agreed to leave the building. Finally, on January 2, 2000, plaintiff entered the Shelter lobby and found Johnson, Slattery and another volunteer, Isobel Doyle, working there. Plaintiff tried to proceed to the kennel area, but Madden allegedly pushed the door shut against her. Plaintiff claims that Madden again held her by the arm and removed her from the Shelter, locking the door behind her. Plaintiff filed a Civilian Complaint regarding this incident and requested a copy of the complaint, but not receive one from the officers at Police Headquarters or from defendant Mosca's office.
On February 3, 2000, plaintiff went to Police Headquarters to obtain a police report regarding the incidents of November 21, 1999 and January 2, 2000. Plaintiff alleges that defendant Pizzuti refused to give her a copy of the police report, and filed another Civilian Complaint regarding this incident on March 20, 2000. Plaintiff also alleges that defendant Davis promised to schedule a meeting for March 1, 2000, at which time Davis would attempt to mediate between plaintiff, the police and other Shelter volunteers. However, plaintiff claims this meeting was cancelled by the City and never rescheduled.
Local Civil Rule 56.1 (former Local Civil Rule 3(g)) reads as follows:
Federal Rule of Civil Procedure 56(c) further provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir.1995); see generally, Celotex Corp. v. Catrett, 477 U.S. 317, 320-23 (1986). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, 477 U.S. 242, 247 (1986).
The Court's responsibility is to perform "the threshold inquiry of determining whether there is the need for a trial—whether, in other words, there are any genuine factual issues that properly can be resolved by a finder of fact because they may reasonably be resolved in favor of either party." McNeil v. Aguilos, 831 F.Supp. 1079, 1082 (S.D.N.Y.1993), aff'd, 107 F.3d 3 (2d Cir.1996), cert. denied, 117 S.Ct. 1721 (1997), quoting Anderson, 477 U.S. at 250. "The moving party has the burden of identifying the evidence that it believes demonstrates the absence of a genuine issue of material fact." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir.1997), citing Celotex, 477 U.S. at 323.
In deciding whether a genuine issue of material fact exists, "the court is required to draw all inferences in favor of the party against whom summary judgment is sought." Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir.1989). If the opposing party "propounds a reasonable conflicting interpretation of a material disputed fact," summary judgment must be denied. Schering Corp. v. Home Ins. Co., 712 F.2d 4, 9-10 (2d Cir.1983). "On a motion for summary judgment, a court `cannot try issues of fact; it can only determine whether there are issues to be tried'." Cronin, 46 F.3d at 203, quoting Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir.1987). "Only when no reasonable trier of fact could find in favor of the nonmoving party should summary judgment be granted." Cruden v. Bank of New York, 957 F.2d 961, 975 (2d Cir.1992).
Pro se pleadings and papers are to be liberally construed, Estelle v. Gamble, 429 U.S. 97, 106 (1976), and are to be interpreted "to raise the strongest arguments that they suggest." Soto v. Walker, 44 F.3d 169, 173 (2d Cir.1995). "[A] pro se complaint, `however inartfully pleaded,' must be held to `less stringent standards than formal pleadings drafted by lawyers'." Estelle, 429 U.S. at 106, quoting Haines v. Kerner, 404 U.S. 519, 510-21 (1972). However, dismissal is warranted when statute or controlling precedent clearly forecloses the liberally construed pleadings. See Love v. Coughlin, 714 F.2d 207, 208 (2d Cir.1983). With these principles in mind, this Court considers the instant motions.
There are two threshold elements of a Section 1983 claim: (1) the defendant acted under color of state law; and (2) as a result of the defendant's actions, the plaintiffs suffered a denial of their federal rights and privileges. See Annis v. County of Westchester, 136 F.3d 239, 245 (2d Cir.1998) (citation omitted). No action pursuant to § 1983 may be maintained unless the challenged conduct is attributable at least in part to a person acting under color of state law. See Chan v. City of New York, 1 F.3d 96, 106 (2d Cir.1993) (citing Rendell-Baker v. Kohn, 457 U.S. 830, 835 (1982)).
"A private individual can be held liable under § 1983 `only as a willful participant in joint activity with the State or its agents.'" Carlucci v. Kalsched, 78 F.Supp.2d 246, 251 (S.D.N.Y.2000) (quoting Spear v. Town of West Hartford, 954 F.2d 63, 68 (2d Cir.1992) (internal quotations omitted)). The Supreme Court has set forth three tests to determine whether a private individual is deemed to be a `state actor' for § 1983 purposes: (1) the public function test, see West v. Atkins, 487 U.S. 48, 4950 (1988); (2) the state compulsion test, see Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970); and (3) the symbiotic relationship or nexus test, see Burton v. Wilmington Parking Auth., 365 U.S. 715 (1961).
Under the `public function' test, a plaintiff must show that a defendant's function "has been `traditionally the exclusive prerogative of the State.'" Rendell-Baker, 457 U.S. at 842 (emphasis in original). "If the private actor is functioning as the government, that private actor becomes the state for purposes of state action." Atkinson v. B. C. C. Assoc. Inc., 829 F.Supp. 637, 648 (S.D.N.Y.1993). Pursuant to the `state compulsion' test, the private actor's actions are "otherwise chargeable to the State . . . when the State, by its law, has compelled the act." Albert v. Carovano, 824 F.2d 1333, 1341 (2d Cir.1987) (citations omitted). In other words, the private actor becomes a state actor when "the state has provided `significant encouragement, either overt or covert,' for the actions of the parties." Atkinson, 829 F.Supp. at 648 (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982). The `symbiotic relationship' test focuses on the state's over-all relationship with the private actor, and examines whether "the state has so far insinuated itself into a position of interdependence . . . that it must be recognized as a joint participant in the challenged activity." Burton, supra; see also Hadges v. Yonkers Racing Corp., 918 F.2d 1079, 1082 (2d Cir.1990). One of the factors in determining whether a symbiotic relationship between the state and the private actor exists is whether the state shared in any profits. See Rendell-Baker, 457 U.S. at 843. Finally, the `close nexus' test examines the state's link to the challenged action. See Hadges, 918 F.2d at 1082. This test is not satisfied "merely by the fact that the private entity is a business `affected with the public interest'; or that the state `approved of or acquiesced in the initiatives' of the private entity." Chan, 1 F.3d at 106 (internal quotations omitted). Neither "the mere existence of a contract between a governmental agency and a private party" nor the fact that "a private entity leases space from a governmental agency" is sufficient to create state action. Simescu v. Emmet County Dept. of Social Servs., 942 F.2d 372, 375 (6
Plaintiff has presented to the Court no evidence showing that operation of the Shelter, now in the purview of the Task Force and volunteers, has even been the "exclusive prerogative" of the City of Mount Vernon. Rendell-Baker, 457 U.S. at 842 (emphasis omitted). Nor is there evidence that either the Mayor or any other City official compelled Johnson, Slattery or any other Task Force member to behave in a certain way or take certain action against plaintiff. The Court also sees no evidence that a symbiotic relationship or a close nexus existed between the City and the Task Force or other volunteers at the Shelter. Accordingly, the Court finds that Johnson and Slattery are not state actors subject to suit under Section 1983. Therefore, the Court grants summary judgment in favor of defendants Johnson and Slattery on all of plaintiffs claims against them.
A municipality cannot be held liable under Section 1983 for the conduct of an employee solely on the basis of respondeat superior. See Ricciuti v. New York City Transit Auth., 941 F.2d 119, 122 (2d Cir.1991). Instead, the municipal entity will be held responsible if the violation of the plaintiffs rights resulted from municipal custom or policy. See Pembaur v. City of Cincinnati, 475 U.S. 469, 478-79 (1986); City of Oklahoma v. Tuttle, 471 U.S. 808, 818 (1985); Monell v. Dept. of Social Servs., 436 U.S. 658, 694 (1978). Liability may be imposed even if the policy or custom alleged is informal and not an explicitly adopted rule or regulation. See Sorlucci v. New York City Police Dept., 971 F.2d 864, 870 (2d Cir.1992) (citing Ricciuti, 941 F.2d at 122). However, mere assertions "that a municipality has . . . a custom or policy is insufficient in the absence of allegations of fact tending to support, at least circumstantially, such an inference." Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir.1993); see also City of Canton v. Harris, 489 U.S. 378, 388-92 (1989).
In the instant case, plaintiff alleges that the City maintained a custom or policy of failing to train and supervise its employees, and failing to conduct meaningful investigations into civilian complaints such as hers. However, she has presented no evidence to support these claims against the City. Accordingly, the Court grants summary judgment in favor of defendant City of Mt. Vernon on all of plaintiffs claims against it.
A non-state entity can conspire with a state actor and thus act under color of state law. See Skinner v. Dwyer, et al., No. 91 Civ. 238, 1992 WL 265995, at *2 (N.D.N.Y. Sept. 9, 1992) (citing Spear, 954 F.2d at 68). Such a conspiracy claim must allege that "the nonstate actor `acted in concert with a state actor to commit an unconstitutional act.'" Id. "[A] plaintiffs conclusory allegation that a nonstate actor conspired with a state actor does not suffice to state a section 1983 violation." Id. (citing Zemsky v. New York, 821 F.2d 148, 151-52 (2d Cir.1987)).
Here, plaintiff has made only conclusory allegations of conspiracy between defendants Johnson, Slattery and Madden to violate her constitutional rights. Moreover, her allegations are unsupported by any facts tending to show conspiracy. Plaintiff has not identified any material issues of fact regarding a Section 1983 conspiracy. Accordingly, the Court grants summary judgment in favor of defendants on all of plaintiffs conspiracy claims against them.
Defendants claim that they are entitled to qualified immunity and/or Eleventh Amendment immunity because their actions lacked the necessary mental culpability and causality to reach a Section 1983 violation of plaintiffs constitutional rights.
It is well-settled that the Eleventh Amendment bars suits against a state "unless Congress has abrogated or the state has waived its sovereign immunity." Aguilar v. New York Convention Ctr. Operating Corp., 174 F.Supp.2d 49, 51 (S.D.N.Y.2001). See also, Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 (1984). Here, however, plaintiff has not sued New York State, but the City of Mount Vernon. The Supreme Court has made clear that Eleventh Amendment immunity protects states and state officials, "but does not extend to counties and similar municipal corporations." Mt. Healthy City Sch. Dist., 429 U.S. at 280. In fact, the Supreme Court has refused to extend Eleventh Amendment protection to counties and municipalities, even if they exercise "a slice of state power." Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 401 (1979). Accordingly, the Court finds that defendants are not entitled to Eleventh Amendment immunity.
Qualified immunity shields government officials from Section 1983 liability as long as "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person should have known." Dockery v. Barnett, 167 F.Supp.2d 597, 605 (S.D.N.Y.2001) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The extent of the protection of qualified immunity depends upon the "objective legal reasonableness of defendants' actions assessed in light of the legal rules that were clearly established at the time [they were] taken." Dockery, 167 F.Supp.2d at 605 (quoting Anderson v. Creighton, 483 U.S. 635 (1987)(internal quotations omitted)). A defendant is entitled to summary judgment on the grounds of qualified immunity "only if, drawing all inferences in favor of plaintiff [], no rational jury could conclude that it was objectively unreasonable for him to believe that his actions did not violate a clearly established right." Dockery, 167 F.Supp.2d at 605. See also Tierney v. Davidson, 133 F.3d 189, 196 (2d Cir.1998); Williams v. Greifinger, 97 F.3d 699, 706 (2d Cir.1996).
However, qualified immunity may not protect supervisory officials if they are found to be sufficiently involved in the acts of their subordinates to impose liability, as evidenced by their "(1) direct participation in the alleged constitutional violation; (2) failure to remedy a wrong after learning of it; (3) creation or maintenance of a policy under which constitutional violations occurred; (4) gross negligence in managing subordinates who committed the unconstitutional acts; or (5) exhibiting deliberate indifference to the rights of others by failing to act on information indicating the unconstitutional acts were occurring." Dockery, 167 F.Supp.2d at 605 (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995)).
In the instant case, the record demonstrates that no rational jury could conclude that defendants Mosca, LaForgia, and Davis reasonably knew or should have known that their actions violated plaintiffs First and Fourth Amendment rights. With respect to her First Amendment claim, defendants' alleged actions were objectively reasonable, given the information they possessed and relied upon regarding the circumstances of plaintiffs dismissal as a Shelter volunteer. With respect to her Fourth Amendment claim, defendants' actions were objectively reasonable, in light of the fact that they received her complaints regarding Officer Madden and forwarded them through appropriate channels to the office of the Mt. Vernon Corporation Counsel. Accordingly, the Court finds that defendants Mosca, LaForgia and Davis are entitled to the defense of qualified immunity on plaintiffs First and Fourth Amendment claims.
A Section 1983 claim that a state actor retaliated against a plaintiff for exercising a constitutional right is analyzed pursuant to a burden-shifting scheme, defined by the Supreme Court in Mt. Healthy Sch. Dist. v. Doyle, 429 U.S. 274 (1977), as follows: the plaintiff bears the initial burden of demonstrating that (1) her speech—that is, the criticisms and complaints she leveled against the officers in charge of the Shelter and other Shelter employees— may be "fairly characterized as constituting speech on a matter of public concern," Connick v. Myers, 461 U.S. 138 (1983), and (2) the speech was "at least `a substantial' or `motivating' factor in the adverse action taken by the employer." White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1058 (2d Cir.1993) (quoting Mt. Healthy City Sch. Dist., 429 U.S. at 287). Whether speech is protected as a matter of public concern is a question of law for the court to decide. See Brennan v. Straub, et al., No. 02 Civ. 7655, 2003 WL 554620, *5 (S.D.N.Y. Feb. 27, 2003). If plaintiff so demonstrates, the burden then shifts to defendants to show by a preponderance of the evidence that they would have taken the action in question "even in the absence of the protected conduct." Mt. Healthy Sch. Dist., 429 U.S. at 287. "Thus, 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).
To constitute speech of public concern, it must "relat[e] to [a] matter of political, social, or other concern to the community." Connick, 461 U.S. at 146. The Court must consider "the content, form, and context of a given statement, as revealed by the whole record." Id. at 147-48. Plaintiff does not deserve First Amendment protection if she "speaks not as a citizen upon matters of public concern, but instead as [a volunteer] upon matters only of personal interest." Id at 147; see also Versarge v. Township of Clinton, 984 F.2d 1359, 1364 (3
Further, Madden's conduct in barring plaintiff from the Shelter occurred after Madden received notice from the Task Force that plaintiff had been dismissed See Plt.'s Exh. C at 18-19. Plaintiff has failed to show any causal connection between her protected speech and Madden's conduct. Moreover, Madden's actions in barring plaintiff from the Shelter were objectively reasonable given the contents of the Task Force letter dismissing plaintiff as a volunteer, and she is entitled to qualified immunity.
Defendant Pizzuti arrived at the Shelter at plaintiff's request, after she was removed by Madden. See Plt.'s Exh. F at 13-14. The Court finds that plaintiff has failed to establish a causal connection between her protected speech and Pizzuti allegedly threatening her with arrest and not providing her with copies of her civilian complaints. A First Amendment violation is not evident on this record. In any event, Pizzuti would be entitled to qualified immunity. Accordingly, the First Amendment claims against Madden and Pizzuti are dismissed.
Plaintiff claims that defendant Madden violated her Fourth Amendment right to be free from unreasonable seizure by "grabbing [plaintiff]" and "forcibly turning [plaintiff] around and removing her from the building." Plt.'s Memo. of Law in Opp. at 7. Plaintiff also alleges that defendant Pizzuti violated her Fourth Amendment rights by using his authority to "intimidate Plaintiff and thereby restrain[ ] her liberty interest in entering or going to the [S]helter." Id at 19.
The Fourth Amendment protects "[t]he right of the people to be secure in their persons . . ., against unreasonable searches and seizures." U.S. Const. Amend. IV; Atwater v. City of Lago Vista, 532 U.S. 318, 326 (2001). A person has been "seized" within the meaning of the Fourth Amendment when she is physically or constructively detained by a police officer in such a manner that a reasonable person would not feel that she is free to leave. See Terry v. Ohio, 392 U.S. 1 (1968); Tennessee v. Garner, 471 U.S. 1 (1985). A seizure under the Fourth Amendment does not occur "whenever there is a governmentally caused termination of [a person's] freedom of movement . . . nor even whenever there is a governmentally caused [ ] termination of [a person's] freedom of movement . . . but only when there is a governmental termination of freedom of movement through means intentionally applied" Brower v. County of Inyo, 489 U.S. 593, 596-97 (1989) (emphasis in original).
Plaintiff also alleges that defendants Mosca, LaForgia and Davis violated her Fourth Amendment rights by failing to properly train and supervise the police, failing to investigate her complaints against Madden, and failing to afford her the relief she requested.
In order to establish personal liability pursuant to Section 1983, plaintiff must prove that the defendants caused the deprivation of her rights. See Taylor v. Brentwood Union Free Sch. Dist., 143 F.3d 679, 685 (2d Cir.1998) (citing Monell v. Dept. of Social Servs., 436 U.S. 658, 692 (1978)). The Second Circuit has delineated several ways in which a defendant may be personally involved in a constitutional deprivation so as to be liable under Section 1983:(1) "[t]he defendant may have directly participated in the infraction;" (2) "[a] supervisory official, after learning of the violation through a report or appeal, may have failed to remedy the wrong;" (3) "[a] supervisory official may be liable because he or she created a policy or custom under which unconstitutional practices continue;" (4) "a supervisory official may be personally liable if he or she 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).
Here, plaintiff asserts that on at least two occasions, she filed civilian complaints against Madden for allegedly unreasonably seizing her and removing her from the Shelter. Plaintiff also claims that she made several phone calls to the Mayor's office, as well as Mt. Vernon Police Headquarters in efforts to follow up on her complaints. Defendants acknowledge that they received, saw or knew of plaintiff's complaints against Madden, and state that they appropriately forwarded the paperwork to Mosca's office, or the office of the Mt. Vernon Corporation Counsel. As aforementioned, Madden's conduct was not wrongful. Therefore, there were no `wrongs' to remedy. Moreover, plaintiff has not raised a material issue of fact or shown that any defendant was grossly negligent in supervising Madden. Accordingly, the Court grants summary judgment on plaintiff's Fourth Amendment claims against said defendants.
A plaintiff "must have a property interest in [her] former employment in order to bring a claim under the Fourteenth Amendment." Brennan, No. 02 Civ. 7655, 2003 WL 554620, at *6. In order to claim a property interest in a benefit, plaintiff must have a "legitimate claim of entitlement to it," and must have "more than a unilateral expectation of it." Board of Regents v. Roth, 408 U.S. 564, 577 (1972). Further, property interests are not created by the United States Constitution, but "are created and . . . defined by existing rules or understandings that stem from an independent source such as state law." Id. "A person's interest in a benefit is a property interest for due process purposes if there are . . . rules or mutually explicit understandings that support [her] claim of entitlement." Perry v. Sindermann, 408 U.S. 593, 601 (1972); see also Hamid v. John Jay College of Criminal Justice, No. 99 Civ. 8669, 2000 WL 666344, at *5 (S.D.N.Y. May 19, 2000). Plaintiff will fail to state a due process violation if she "has not demonstrated that [s]he was deprived of a constitutionally protected interest in . . . property and that `such deprivation was achieved under color of law.'" Laupot v. City of New York, No. 01 Civ. 3294, 2002 WL 83673, at *2 (S.D.N.Y. Jan. 18, 2002) (quoting Paul v. Davis, 424 U.S. 693, 696 (1976)).
Here, plaintiff was appointed by defendant Davis as a Shelter volunteer in October of 1995. See Plt.'s Exh. HH. The Volunteer Service Statement and Release signed by plaintiff at that time indicates that she would be providing "uncompensated services" at the Shelter for the specified period of one year, from October 30, 1995 to October 30, 1996. Id. The Release also specifies that plaintiff is "not an employee . . . of the City of Mount Vernon and [is] not entitled to any compensation, benefit, or health insurance coverage from the City." Id. Finally, the Release suggests that the City is entitled to terminate plaintiff's volunteer services at any time "if such is deemed necessary," and makes no provisions for the continuation or renewal of plaintiff's volunteer status. Id. See Roth, 408 U.S. at 578 ("the terms of the respondent's appointment . . . supported absolutely no possible claim of entitlement to re-employment. . . . Nor, significantly, was there any [] rule or policy that secured his interest in re-employment or that created any legitimate claim to it."). Therefore, the Court finds that plaintiff has no secured property interest in her volunteer status at the Shelter. Accordingly, the Court grants summary judgment in favor of defendants on plaintiff's Fourteenth Amendment due process claims.
Summary judgment is GRANTED in favor of all defendants, dismissing all claims. Plaintiff's cross-motion for summary judgment is DENIED. The Clerk of the Court shall enter judgment accordingly.
SO ORDERED.
DEBORAH A. BATTS, District Judge.
Pursuant to 28 U.S.C. § 636(b)(1)(C), the District Court is required to make a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." This Court, therefore, reviews de novo Plaintiff's objections regarding exhaustion of his claims, cross-contamination at Sing Sing, and religious discrimination. Where a party raises only general objections, and for portions of the Report to which no objection is made, "a district court need only satisfy itself there is no clear error on the face of the record." See Advance Coatina Tech. Inc. v. LEP Chem. Ltd., 142 F.R.D. 91, 94 (S.D.N.Y.1992). Because Plaintiff's remaining objections regarding the scope of discovery and bias in the proceedings are general or seek to relitigate prior arguments, this Court reviews the remainder of the Report for clear error.
After conducting the appropriate level of review, the Court may then accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate. 28 U.S.C. § 636(b)(1)(C); see also Local Rule 72.1(d). For the reasons contained herein, this Court ADOPTS the findings of Magistrate Judge Eaton and grants Defendants' Motion for Summary Judgment.
The facts in this matter are described in Judge Eaton's Report and will not be restated fully here. Magistrate Judge Eaton found that 1) Plaintiff failed to exhaust his claims relating to food preparation at Attica, Green Haven, and the Food Production Center in Rome, New York; 2) there is no genuine issue of material fact as to whether the food sanitation at Sing Sing unlawfully burdened Plaintiff's religious rights; 3) the Religious Alternative Menu ("RAM") program is nutritionally adequate
Subsequently, on March 2, 2010, Plaintiff filed numerous objections to the Report, which raise the following concerns: 1) the scope of discovery was limited improperly; 2) the proceedings were biased toward the Defendants; 3) Plaintiff's claims regarding policies and practices at Attica, Green Haven, and the Food Production Center were exhausted properly; 4) there is a genuine issue of material fact as to whether the utensils or components of the RAM meal were subject to cross-contamination; 5) the food service at Sing Sing is discriminatory to Muslim inmates when compared to the services available to Jewish inmates; and 6) Plaintiff was not permitted to question Defendants' expert witness. On May 7, 2010, Defendants filed a Response to Plaintiff's Objections to the Report.
Even construed liberally, Plaintiff's objection regarding Judge Eaton's bias toward the Defendant does not challenge any factual finding or set forth any legal ground on which Magistrate Judge Eaton erred. The Court need not, and does not, give this objection de novo review.
Furthermore, "a pro se party's objections to the Report and Recommendation must be specific and clearly aimed at particular findings in the magistrate's proposal, such that no party will be allowed a second bite at the apple by simply relitigating a prior argument." DiPilato v. 7-Eleven, Inc., 662 F.Supp.2d 333, 340 (S.D.N.Y.2009) (citing Pickney v. Progressive Home Health Services, No. 06 Civ. 5023, 2008 WL 2811816, at *1 (S.D.N.Y. July 21, 2008)). Here, Plaintiff's objection regarding the scope of discovery simply restates the same arguments set forth in Plaintiff's previously rejected motions and papers, and thus is reviewed for clear error. The remainder of Plaintiff's objections are reviewed de novo.
Accordingly, the Court reviews de novo the following objections: 1) Plaintiff's claims regarding policies and practices at Attica, Green Haven, and the Food Production Center ("FPC") were exhausted properly; 2) there is a genuine issue of material fact as to whether the utensils or components of the RAM meal were subject to cross contamination in violation of Plaintiff's rights under the First Amendment and RLUIPA; 3) the food service at Sing Sing discriminates against Muslim inmates; and 4) Plaintiff was not permitted to question the Defendants' expert witness.
A district court should grant summary judgment when there is "no genuine issue as to any material fact," and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P 56(c). "Only when no reasonable trier of fact could find in favor of the nonmoving party should summary judgment be granted." James v. New York Racing Ass'n, 223 F.3d 149, 152 (2d Cir.2000). While a court must always construe "the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor," Mathirampuzha v. Potter, 548 F.3d 70, 74 (2d Cir.2008), the non-moving party may not rely on "conclusory allegations or unsubstantiated speculation" to preclude summary judgment. Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir.2005). Instead, when the moving party has documented particular facts in the record, "the opposing party must `set forth specific facts showing that there is a genuine issue for trial.'" Zelnik v. Fashion Institute of Technology, 464 F.3d 217, 224 (2d Cir.2006) (quoting Fed.R.Civ.P. 56(e)). Establishing such facts requires going beyond the allegations of the pleadings, as the moment has arrived "`to put up or shut up.'" Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.2000) (citation omitted).
In order to satisfy the PLRA exhaustion requirement, an inmate must exhaust administrative remedies properly, meaning that an inmate "must complete the administrative review process in accordance with the applicable procedural rules—rules that are defined not by the PLRA, but by the prison grievance process itself." Woodford v. Ngo, 548 U.S. 81, 88, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). DOCS has a three-step Inmate Grievance Program ("IGP") that an inmate must complete to exhaust administrative remedies fully. See Neal v. Goord, 267 F.3d 116, 112 (2d Cir.2001).
In this case, Plaintiff filed and fully exhausted his 2006 Sing Sing grievance, which alleged: (1) that the manner in which pork was being served at Sing Sing subjected the Religious Alternative Menu ("RAM") option to cross contamination; and (2) that the dishes and utensils at Sing Sing were washed in the same machine as those used for the general population and thus were also subject to cross contamination. (Compl.Ex. B).
Plaintiff subsequently commenced this action, alleging that Defendants violated his constitutional rights by: (1) failing to investigate his Sing Sing grievance properly; (2) failing to maintain the integrity of the food service at Sing Sing; (3) causing Plaintiff to use dishes and utensils contaminated by pork products at Sing Sing; (4) discriminating against Muslim inmates by not providing them with hermetically sealed meals and utensils similar to those provided to Jewish inmates at Sing Sing; (5) "failing to ensure all mess halls in all correctional facilities in the State of New York . . . provide Muslim inmates with foods that are `wholly free of pork products,'" (Compl.¶ 41); and (6) failing to notify Plaintiff that products produced at DOCS Food Production Center ("FPC") are possibly made haram, or unlawful for him to eat, because they are prepared and packaged with the same equipment used to prepare and package pork items.
Claims (1) through (3) were raised in Plaintiff's grievance. Defendants concede that Plaintiff has exhausted the discrimination claim (Claim (4)) because it "closely followed issues Plaintiff raised in his grievance." (Reply Mem. at 4). Defendants object to Plaintiff's attempts to raise the remaining claims (Claim (5) and Claim (6)) "to serve as additional constitutional violations or to bolster his claims concerning the constitutionality of Sing Sing's food service." (Reply Mem. at 4). Defendants contend that these claims should be barred because Plaintiff did not file any grievances regarding issues beyond Sing Sing and has thus failed to exhaust his available administrative remedies. Judge Eaton agreed with Defendants and limited Plaintiff's claims to those raised in his Sing Sing grievance. (Report at 4).
The Second Circuit has held that "alerting the prison officials to the nature of the wrong for which redress is sought,' [without filing a formal grievance] does not constitute proper exhaustion." Macias v. Zenk, 495 F.3d 37, 44 (2d Cir.2007) (internal citations omitted). Nevertheless, a claim may be exhausted when it is closely related to, but not explicitly mentioned in an exhausted grievance. See Espinal v. Goord, 558 F.3d 119, 128 (2d Cir.2009) (holding that a claim for denial of medical care was exhausted where a grievance alleged excessive force and retaliation because "it was clear that the state had considered these allegations when reviewing [the] grievance"). Thus, the question for the Court is whether Plaintiff's grievance "provided enough information to alert the prison to the nature of the wrong for which redress [was] sought, and to afford[ ] . . . time and opportunity [for the State] to address [the] complaint internally," Espinal v. Goord, 558 F.3d at 127 (internal citations omitted).
Drawing all inferences in Plaintiff's favor, the Court finds that Plaintiff's Sing Sing grievance cannot be construed to place Defendants on notice of claims regarding alleged cross contamination at DOCS FPC and at Attica and Green Haven, or claims regarding the cleaning procedures at Attica and Green Haven. Plaintiff's fully exhausted grievance alerted Defendants to two alleged problems: (1) that when pork was served in the Sing Sing mess hall, the manner in which it was served subjected the RAM option to cross contamination; and (2) that all of the dishes at Sing Sing were washed in same machine and thus also subject to cross contamination. (Compl.Ex. B). Defendants investigated Plaintiff's grievance and issued a decision that addressed the service of pork and the cleaning of dishes at Sing Sing. (Compl. Ex. B; Robinson Decl. Exs. A-C.) The record does not indicate, nor does Plaintiff suggest, that Defendants investigated food production and cleaning procedures at other facilities when addressing Plaintiff's Sing Sing grievance. Accordingly, the Court finds that Plaintiff's claims regarding possible cross contamination at DOCS FPC, Attica, and Green Haven, and his claims regarding the cleaning procedures at Attica and Green Haven are not exhausted for the purposes of this action. Accordingly, Plaintiff's objection to Magistrate Judge Eaton's finding on exhaustion is overruled.
Defendants produced evidence that the sanitation and RAM service procedures at Sing Sing were intended to preserve the rights of Muslim inmates to a diet consistent with their religious strictures. The Declaration of Sing Sing Food Administrator Anthony Chu states that pork is served only rarely and is separated from the RAM to the extent practicable. (Chu Decl. ¶¶ 5-6.) Additionally, a serving tray serves as a barrier between the pork and other food items. (Chu Decl., ¶ 6.) Serving equipment, utensils, and cooking pots are cleaned and sanitized by New York State Board of Health-approved methods, either through hand washing or use of a dish machine. (Id., ¶ 8.) The Westchester Department of Health inspects the facility annually and the facility keeps temperature logs showing dishwasher temperatures. (Id., ¶ 9.)
To state a claim under the First Amendment or RLUIPA, an inmate "must show at the threshold that the disputed conduct substantially burdens his sincerely held religious beliefs." Salahuddin v. Goord, 467 F.3d 263, 274-75 (2d Cir.2006). A recent case found that the sanitation procedures at Green Haven Correctional Facility did not substantially burden the religious beliefs of Muslim inmates. Majid v. Fischer, 07 Civ. 4584, 2009 U.S. Dist. LEXIS 71616 (S.D.N.Y. July 31, 2009). In reaching that conclusion, the court relied on the opinion of Defendants' expert, Imam Feisal Abdul Rauf (the "Imam"), who also toured Sing Sing's dining facility to evaluate the claims made in this case. On the subject of proper sanitation, the Imam concluded that the sanitation policies and procedures in place at Sing Sing complied with Islamic dietary law. (Bauman Decl., Ex. C, p. 6.) Nevertheless, the Imam noted the need for greater oversight to ensure that sanitation policies were followed. (Id.) In response, DOCS issued a memorandum on RAM service policies and implemented new food service training requirements. (Culkin Decl, ¶ 14; Ex. A.)
Plaintiff objects to the Report on the grounds that Muslim inmates are provided with cheaper, soy-based products that are kosher and therefore meet the dietary requirements of Jewish inmates, but Jewish inmates get more expensive products in their CAD meals (Obj. ¶ 14; Pl.'s Opp. Mem. p. 4; Pl.'s Decl. ¶ 57), and that a Rabbi oversees the CAD program while no Muslim chaplain inspects food production (Obj. ¶ 41e; Pl.'s Decl. ¶ 58).
To make a claim under the Equal Protection Clause, a claimant "must demonstrate that he was treated differently than others similarly situated as a result of intentional or purposeful discrimination." Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir.2005). Further, "[h]e . . . must show that the disparity in treatment cannot survive the appropriate level of scrutiny which, in the prison setting, means that he must demonstrate that his treatment was not `reasonably related to any legitimate penological interests.'" Id. (quoting Shaw v. Murphy, 532 U.S. 223, 225, 121 S.Ct. 1475, 149 L.Ed.2d 420 (2001)).
Where prison regulations draw distinctions among inmate groups, whether the regulation is reasonably related to a legitimate penological interest depends on application of the four factors described in Turner v. Safley, 482 U.S. 78, 89-91, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). Those factors are: 1) whether there is a rational relationship between the regulation and the legitimate government interest asserted; 2) whether the inmates have alternative means to exercise the right; 3) the impact that the accommodation of the right will have on the prison system; and 4) whether ready alternatives exist which accommodate the right and satisfy the governmental interest. Benjamin v. Coughlin, 905 F.2d 571, 574 (2d Cir.1990).
Here, Plaintiff's claims fail as a matter of law because he has put forth no evidence tending to show that the disparity in treatment between Muslim and Jewish inmates was the result of intentional or purposeful discrimination. As the court pointed out in Abdul—Malik v. Goord, 96 Civ. 1021, 1997 U.S. Dist. LEXIS 2047, at *24-25, 1997 WL 83402 (S.D.N.Y. Feb. 27, 1997), using meat versus vegetables as a proxy for discrimination is inappropriate. The CAD program is not necessarily more desirable, since it is cold and has less menu variety than the RAM program, which provides hot meals. Id. Both programs provide nutritionally adequate meals that conform to the respective religious demands. Id
Replacing the meat in the CAD meal with soy-based vegetarian products similar to those served in the RAM program may be more cost-effective, but where the meals provided are nutritionally adequate and meet the religious requirements of the inmates, courts will not "micromanage DOCS's menu planning." Abdul—Malik, 1997 U.S. Dist. LEXIS 2047, at *29. Accordingly, Plaintiff's Objection with respect to the Equal Protection claim is overruled.
Finally, Plaintiff objects that he was not permitted to depose Defendants' expert witness, Imam Feisal Abdul Rauf, (the "Imam"), because of his inability to pay the Imam's witness fees. (Obj.¶ 31).
The Second Circuit has held that federal courts are not authorized to waive or pay witness fees on behalf of an in forma pauperis litigant. Malik v. La Valley, 994 F.2d 90, 90 (2d Cir.1993); see also Murray v. Palmer, 2006 WL 2516485, at *1 (N.D.N.Y.) (holding that the plaintiff's in forma pauperis status did not excuse him from paying the costs of a deposition). Plaintiff was allowed to submit interrogatories, but the record does not show that Plaintiff submitted any interrogatory to the Imam. Furthermore, Plaintiff made his request to depose the Imam on October 21, 2008, which was after the close of discovery. (Obj. Ex. C; Defs.' Mem. p. 8.) Plaintiff cannot now raise the issue when he had ample to time to present his request to the Court. Plaintiff's objection is overruled.
As explained above, Plaintiff's remaining objections are either general, or restate arguments already submitted to and rejected by Magistrate Judge Eaton. Therefore this Court need only review the remainder of the Report for clear error. Having reviewed the Report and finding no clear error, and having conducted an independent de novo review of the specifically objected-to portions of the Report, it is ORDERED and ADJUDGED as follows:
1. The Report and Recommendation of United States Magistrate Judge Eaton dated January 28, 2010 is APPROVED, ADOPTED AND RATIFIED by the Court.
2. Defendants' Motion for Summary Judgment GRANTED with regard to all of Plaintiff's claims.
3. The Clerk of Court is directed to CLOSE the docket in this case.
SO ORDERED.
Lawrence Toole, pro se.
Hon. Andrew Cuomo, New York State Attorney General, David L. Cochran, Esq., Assistant Attorney General, of Counsel, Albany, NY, for Defendants.
LAWRENCE E. KAHN, District Judge.
Within ten days, excluding weekends and holidays, after a party has been served with a copy of a Magistrate Judge's Report—Recommendation, the party "may serve and file specific, written objections to the proposed findings and recommendations," FED. R. CIV. P. 72(b), in compliance with L.R. 72.1. No objections have been raised in the allotted time with respect to Judge Peebles' Report—Recommendation. Furthermore, after examining the record, the Court has determined that the Report—Recommendation is not subject to attack for plain error or manifest injustice.
Accordingly, it is hereby
DAVID E. PEEBLES, United States Magistrate Judge.
Plaintiff Lawrence Toole, a New York State prison inmate who is proceeding pro se and in forma pauperis, has commenced this action pursuant to 42 U.S.C. § 1983, claiming deprivation of his civil rights. In his complaint, plaintiff alleges that 1) he was sexually harassed by Corrections Officer Prusinowski; 2) the remaining defendants failed to fulfill their responsibilities to investigate and remediate the constitutional deprivation associated with that sexual harassment, including by their failure to properly address his grievances concerning the matter; and 3) a misbehavior report was issued against him in retaliation for complaining of the sexual harassment, all in violation of his constitutional rights.
Having already succeeded in securing dismissal of plaintiff's sexual harassment claim against defendant Prusinowski, based upon a finding that the factual allegations offered in support of that cause of action, even if proven, do not rise to a level sufficient to establish an Eighth Amendment violation, defendants now move for summary judgment in their favor dismissing the balance of plaintiff's complaint as a matter of law. In their motion, defendants assert that because the underlying sexual harassment did not rise to a level of constitutional significance, there can be no corresponding liability on the part of the other defendants for failing to investigate the matter and remedy the claimed harassment. Noting that plaintiff has no constitutional right of access to the internal prison grievance process, and that the record is lacking in any evidence linking the issuance of the disputed misbehavior report—authored by an individual who is not a party to the action—to plaintiff's efforts to obtain redress for Corrections Officer Prusinowski's behavior, defendants seek dismissal of plaintiff's remaining claims.
At the times relevant to his complaint plaintiff was a prison inmate entrusted to the custody of the New York State Department of Correctional Services ("DOCS"), and designated to the Oneida Correctional Facility ("Oneida"). See generally Complaint (Dkt. No. 1). On February 5, 2004, while confined within a dormitory unit at Oneida, plaintiff awoke to someone, later identified as Corrections Officer H. Prusinowski, shaking his buttocks and standing over him, smiling.
On February 20, 2004 plaintiff filed a grievance with the Inmate Grievance Resolution Committee ("IGRC") at Oneida, claiming that defendant Prusinowski had sexually harassed him on February 3, 4, and 5, 2004. Complaint (Dkt. No. 1) Exh. A. In addition to detailing his encounters with defendant Prusinowski, in that grievance plaintiff also complained that his attempt to report the February 5, 2004 incident to the desk sergeant had been unsuccessful, and asserted that defendant Prusinowski had arranged to have Toole transferred to a different prison dormitory unit on February 6, 2004.
Because Toole's grievance alleged harassment by a staff member, it bypassed the IGRC stage of the normal grievance process and was forwarded directly to the superintendent's office for a determination. Debejian Decl. (Dkt. No. 53-7) ¶ 6. Toole's grievance was subsequently denied by Oneida Superintendent Connell on March 12, 2004. Complaint (Dkt. No. 1) Exh. B. As a basis for her determination, defendant Connell relied principally upon Prusinowski's denial of having engaged in any inappropriate behavior and the lack of any evidence tending to independently substantiate Toole's allegations. Id.
Plaintiff appealed the denial of his grievance to the Central Office Review Committee ("CORC"). Complaint (Dkt. No. 1) Exhs. B, C. By decision dated April 14, 2004, Toole's appeal was "unanimously denied with clarification." In its decision the CORC found that the sexual harassment complaint was properly investigated at the facility level, and that substantiation of plaintiff's allegations was lacking.
Plaintiff commenced this action on June 23, 2004. Dkt. No. 1. Listed as defendants in plaintiff's complaint are Oneida Superintendent Susan A. Connell; IGS David DeBejian; Corrections Officer Prusinowski; and K. Bellamy, the Assistant Director of New York's Inmate Grievance Program. Although plaintiff's claims are less than artfully stated, they appear to include his assertions that 1) he was subjected to cruel and unusual punishment, in violation of the Eighth Amendment, based upon defendant Prusinowski's actions; 2) the remaining defendants are implicated in that constitutional violation based upon their awareness of the relevant events and failure to conduct a proper investigation and remediate the violation; 3) plaintiff's rights were violated based upon defendants' failure to properly process and address his inmate grievance concerning the sexual harassment allegations; and 4) the defendants unlawfully retaliated against him, in violation of his First Amendment rights, by arranging for the issuance of a misbehavior report in retaliation for his complaint regarding the matter.
As their initial response to plaintiff's complaint, defendants Connell, Debejian and Bellamy moved to dismiss his claims for failure to satisfy the pleading requirements of Rules 8 and 10 of the Federal Rules of Civil Procedure. Dkt. No. 13. Defendant Prusinowksi filed a separate motion seeking dismissal of the sexual harassment claims against him for failure to state a legally cognizable claim that Toole's constitutional rights were violated by his conduct. Dkt. No. 18.
By order filed March 20, 2006, acting upon a report issued by me recommending that relief, District Judge Lawrence E. Kahn granted defendant Prusinowski's motion to dismiss plaintiff's sexual harassment claim against him. Dkt. No. 29. Defendants' companion motion to dismiss the complaint, however, was denied based upon the court's finding that while not a model of clarity, plaintiff's complaint sufficiently apprised the defendants of the nature of plaintiff's claims to permit a meaningful investigation of those claims and formulation of a defense. Id. at 2.
Defendants' motion, which is now ripe for determination, has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See also Fed.R.Civ.P. 72(b).
Summary judgment is governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, summary judgment is warranted when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10 (1986); Security Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir.2004). A fact is "material", for purposes of this inquiry, if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir.2005) (citing Anderson). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. Though pro se plaintiff's are entitled to special latitude when defending against summary judgment motions, they must establish more than mere "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986); but see Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir.1999) (noting obligation of court to consider whether pro se plaintiff understood nature of summary judgment process).
When summary judgment is sought, the moving party bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue; the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n. 4, 106 S.Ct. at 2511 n. 4; Security Ins., 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material issue of fact for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; Anderson, 477 U.S. at 250, 106 S.Ct. at 2511.
When liberally construed, plaintiff's complaint could be deemed to include a retaliation cause of action. The potential retaliation claim discerned from plaintiff's allegations stems from the issuance by Corrections Sergeant James Allison of the March 12, 2004 misbehavior report, and plaintiff's contention that it was prompted by his having complained of Corrections Officer Prusinowski's actions towards him. Defendants seek dismissal of this claim, citing the lack of evidence suggesting their involvement in the issuance of that disciplinary charge.
When adverse action is taken by prison officials against an inmate, motivated by the inmate's exercise of a right protected under the Constitution, including the free speech provisions of the First Amendment, a cognizable retaliation claim under 42 U.S.C. § 1983 lies. See Franco v. Kelly, 854 F.2d 584, 588-90 (2d Cir.1988). As the Second Circuit has repeatedly cautioned, however, such claims are easily incanted and inmates often attribute adverse action, including the issuance of misbehavior reports, to retaliatory animus; courts must therefore approach such claims "with skepticism and particular care." Dawes v. Walker, 239 F.3d 489, 491 (2d Cir.2001) (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983)), overruled on other grounds, Swierkiewicz v. Sorema NA., 534 U.S. 506 (2002); Davis v. Goord, 320 F.3d 346, 352 (2d Cir.2003) (same).
In order to state a prima facie claim under section 1983 for retaliatory conduct, a plaintiff must advance nonconclusory allegations establishing that 1) the conduct at issue was protected; 2) the defendants took adverse action against the plaintiff; and 3) there was a causal connection between the protected activity and the adverse action—in other words, that the protected conduct was a "substantial or motivating factor" in the prison officials' decision to take action against the plaintiff. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576 (1977); Dillon v. Morano, 497 F.3d 247, 251 (2d Cir.2007); Dawes, 239 F.3d at 492 (2d Cir.2001). If the plaintiff carries this burden, then to avoid liability the defendants must show by a preponderance of the evidence that they would have taken action against the plaintiff "even in the absence of the protected conduct." Mount Healthy, 429 U.S. at 287, 97 S.Ct. at 576. If taken for both proper and improper reasons, state action may be upheld if the action would have been taken based on the proper reasons alone. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996) (citations omitted).
It should also be noted that personal involvement of a named defendant in any alleged constitutional deprivation is a prerequisite to an award of damages against that individual under section 1983. Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (citing Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir.1991) and McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1282 (1978)). In order to prevail on a section 1983 cause of action against an individual, a plaintiff must show some tangible connection between the constitutional violation alleged and that particular defendant. See Bass v. Jackson, 790 F.2d 260, 263 (2d Cir.1986). As is true of other types of claims, this principle applies to causes of action claiming unlawful retaliation. See Abascal v. Hilton, No. 04-CV-1401, 2008 WL 268366, at *10 (N.D.N.Y. Jan. 30, 2008) (Kahn, D.J. and Lowe, M.J.).
In support of their motion, defendants have submitted a declaration from Corrections Sergeant Allison, the author of the misbehavior report in issue, in which he states that the decision to issue the charge was his, and his alone, and was based upon his own personal observations and determination that plaintiff had committed one or more disciplinary infractions. See Allison Decl. (Dkt. No. 53-4) ¶ 4. In addition, defendants Connell and Prusinowski have submitted declarations attesting to their official duties and responsibilities as DOCS employees, and expressly disavowing any involvement in the issuance of the misbehavior report by Sergeant Allison.
It may be that plaintiff's retaliation claim, particularly as against Oneida Superintendent Connell, is predicated upon the defendants' positions as supervisors, and his assertion that in light of their positions they should be held accountable for any retaliation committed by Corrections Sergeant Allison. It is well-established, however, that a supervisor cannot be liable for damages under section 1983 solely by virtue of being a supervisor—there is no respondeat superior liability under section 1983. Richardson v. Goord, 347 F.3d 431, 435 (2d Cir.2003); Wright, 21 F.3d at 501. A supervisory official can, however, be liable in one of several ways; 1) the supervisor may have directly participated in the challenged conduct; 2) the supervisor, after learning of the violation through a report or appeal, may have failed to remedy the wrong; 3) the supervisor may have created or allowed to continue a policy or custom under which unconstitutional practices occurred; 4) the supervisor may have been grossly negligent in managing the subordinates who caused the unlawful event; or 5) the supervisor may have failed to act on information indicating that unconstitutional acts were occurring. Iqbal v. Hasty, 490 F.3d 143, (2d Cir.2007); see also Richardson, 347 F.3d at 435; Wright, 21 F.3d at 501; Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986). None of these circumstances apply in this instance, based upon the evidence now before the court.
In an argument which also implicates personal involvement, at least tangentially, defendants assert that based upon the court's earlier finding that Corrections Officer Prusinowski's actions did not rise to a level of constitutional significance, any claim against the remaining defendants based upon their failure to investigate his allegations of unlawful harassment also fails to state a constitutional claim.
Undeniably, where a supervisory employee knows or reasonably should know of the existence of facts revealing a constitutional deprivation and, by virtue of his or her failure to properly investigate and remediate the matter, perpetuates or fails to prevent additional constitutional violations despite authority to do so, that defendant may face liability under section 1983. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995); see also Meriwether v. Coughlin, 879 F.2d 1037, 1048 (2d Cir.1989) (indicating that supervisory liability was proper where "an official has actual or constructive notice of unconstitutional practices" by his or her subordinates "and demonstrates gross negligence or deliberate indifference by failing to act"). This principle applies equally to claims of sexual harassment; accordingly, a supervisory prison official who fails to address and take appropriate remedial actions, upon finding the existence of actionable sexual harassment of a prison inmate, bears legal responsibility for a resulting violation of the inmate's Eighth Amendment rights. See Doe v. Barrett, No. 3:01-CV-519, 2006 WL 3741825, at *8-9 (D.Conn., Dec. 19, 2006); Safadi v. Almanzar, No. 98 Civ. 7995, 2000 WL 1738403, at *3 (S.D.N.Y. Nov. 22, 2000). The mere failure to investigate an allegation of unconstitutional activity, without more, however, does not provide a basis for finding liability under section 1983. Wingate v. Horn, No. 05-Civ.2001, 2007 WL 30100, at *6 (S.D.N.Y. Jan. 4, 2007) (citing cases).
In this instance, the court has already determined that Officer Prusinowski's actions, however boorish or offensive they may have been, if substantiated, did not rise to a level of constitutional significance. It logically follows, based upon that finding, that neither could the defendants now accused of failing to investigate and remediate that conduct, already found not to be actionable under section 1983, be held liable for a constitutional deprivation. See Linares v. Mahunik, No. 05 Civ. 625, 2006 WL 2595200, at *11 (N.D.N.Y. Sept. 11, 2006) (Sharpe, D.J. and Treece, M.J.) (holding plaintiff could not "sustain a supervisory liability claim as there was no wrong for [supervisor-defendant] to remedy since there [was] no constitutional violation"). I therefore recommend dismissal of plaintiff's failure to investigate claims against the defendants.
Since New York's inmate grievance program ("IGP"), provides a vehicle to permit inmates to seek internal remedial action within the relevant prison facility before commencing legal action complaining of their conditions of confinement, see 7 N.Y.C.R.R. § 701 et. seq. (setting forth the stages of the inmate grievance resolution process); see also Rodriguez v. Hahn, 209 F.Supp.2d 344, 347 (S.D.N.Y.2002) (requiring New York State prison inmates to avail themselves of the DOCS IGP three step administrative process for the resolution of grievances), and allows them to satisfy their exhaustion requirement under 42 U.S.C. § 1997e, in order to bring an action such as this. Soto v. Belcher, 339 F.Supp.2d 592, 595 (S .D.N.Y.2004) (An inmate must first exhaust administrative remedies that are available before he may file an action in federal court). It is well-established, however, that a prison inmate has no constitutional right of access to such an internal grievance process. Rhodes v. Hoy, No. 05-CV-836, 2007 WL 1343649, at *6 (N.D.N.Y. May 5, 2007) (Scullin, J.) (noting that inmates have "no constitutional right of access to the established inmate grievance program"); Davis v. Buffardi, No. 01 CV0285, 2005 WL 1174088, at *3 (N.D.N.Y. May 4, 2005) (Magnuson, J.) ("[P]articipation in an inmate grievance process is not a constitutionally protected right.") (citations omitted). Accordingly, plaintiff's allegations to the effect that the defendants failed to afford him an adequate investigation and remedial action under section 1983 response to his grievance, provides no basis for finding liability against them. Cancel v. Goord, No. 00. CIV.2042, 2001 WL 303713, at *3 (S.D .N.Y. Mar. 29, 2001) (holding that "inmate grievance procedures are not required by the Constitution" and therefore failure to see to it that grievances are properly processed does not create a claim under section 1983). I therefore recommend dismissal of this remaining claim against the defendants, as a matter of law, based upon the lack of any underlying constitutional obligation on their part to afford plaintiff meaningful access to the internal grievance procedure, and to investigate and properly determine any such grievance.
Pivotal to the plaintiff's claims in this case are actions of Corrections Officer Prusinowski, characterized by him as constituting unlawful sexual harassment, but already found by the court not to rise to a level of constitutional significance, and defendants' alleged failure to properly address and remediate those actions. In light of the court's finding that Corrections Officer Prusinowski's actions, as alleged by the plaintiff, did not constitute cruel and unusual punishment or otherwise result in a cognizable unconstitutional deprivation, and the fact that the Constitution does not guarantee him access to the internal grievance process, I recommend dismissal of plaintiff's claims.
RECOMMENDED that defendants' motion for summary judgment (Dkt. No. 53) be GRANTED, and that the remaining claims contained within the plaintiff's complaint be DISMISSED.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have ten days within which to file written objections to the foregoing report. Objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir.1993).
The Clerk of the Court is directed to serve a copy of this report and recommendation upon the parties in accordance with the court's local rules.
SHAMEL WRIGHT, 346 Furman Street, 1st Floor, Schenectady, NY 12304, pro se.
HON. ERIC T. SCHNEIDERMAN, Attorney General for the State of New York, The Capitol, OF COUNSEL: RYAN E. MANLEY, ESQ., Assistant Attorney General, Albany, NY 12224, Counsel for Defendants.
THÉRÉSE WILEY DANCKS, United States Magistrate Judge
Specifically, Plaintiff claims that on August 30, 2013, Defendants Sergeant Rowland Potter ("Potter"), Sergeant Michael Barkman ("Barkman"), Sergeant John Doe ("Sergeant Doe"), Correction Officer John Doe #1 ("Officer Doe #1"), and Correction Officer John Doe #2 ("Officer Doe #2") subjected him to excessive force as well as failed to intervene or to protect Plaintiff. (See generally Dkt. No. 1.) Plaintiff also alleges an Eighth Amendment violation arising out of medical indifference against Defendant James Thomsen ("Thomsen"). Id. Currently pending before the Court is Defendant Thomsen's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. (Dkt. No. 30.) Plaintiff has not opposed the motion. For the following reasons, I recommend that the Court grant Defendant Thomsen's motion for summary judgment.
The following facts are set forth as alleged in Plaintiff's verified complaint.
At approximately 9:30pm, Plaintiff was brought to the nurse's office by Barkman and non-party Correction Officer Castillo ("Castillo").
Plaintiff alleges that Defendant Thomsen exercised deliberate indifference by failing to provide adequate medical care in violation of his Eighth Amendment rights. (Dkt. No. 1 at ¶ 54.) Specifically, Plaintiff alleges that Defendant Thomsen signed a form falsely indicating that Plaintiff had refused medical care for a laceration on Plaintiff's forehead instead of properly treating the injury. Id.
On September 12, 2013, Plaintiff filed an Inmate Grievance Complaint alleging that he had been struck on the head with a chair wielded by Officer Doe #2 on August 30, 2013. (Dkt. No. 30-8.) Plaintiff indicated that Potter, Barkman, and Officer Doe #1 were present for the alleged altercation. Id. Plaintiff titled his grievance "CO Assaulted Me With Chair." Id. Plaintiff did not fill out any other grievances associated with the incident. (Dkt. No. 30-5 at ¶¶ 10-18.)
The grievance was filed with Greene's inmate grievance resolution committee ("IGRC") office on September 12, 2013. (Dkt. No. 1 at ¶ 41.) On October 15, 2013, Plaintiff's grievance was denied. Id. at ¶ 42. Plaintiff's appeal was received by the IGRC office on October 21, 2013. Id. at ¶ 22. Plaintiff appealed the IGRC decision through the Central Office Review Committee ("CORC") and the appeal was received by CORC on November 15, 2013. Id. at ¶ 44. On March 26, 2014, CORC subsequently denied the appeal citing insufficient evidence to substantiate Plaintiff's claim. Id. at ¶ 45; see also Dkt. No. 1 at 12.
Plaintiff commenced this action on August 22, 2014. Id. Defendant Thomsen now moves for summary judgment on the grounds that Plaintiff failed to properly exhaust his available administrative remedies with respect to his medical indifference claim. (Dkt. No. 30-2 at 3-6.) In the alternative, Defendant moves for summary judgement on the merits and also argues that he is entitled to qualified immunity. (Dkt. No. 30-2 at 3-6.) Plaintiff has not opposed the motion. The Court addresses only the exhaustion argument, as it is dispositive.
Summary judgment may be granted only if the submissions of the parties taken together "show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248.
Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating that genuine issues of material fact exist. Salahuddin, 467 F.3d at 273 (citations omitted). The nonmoving party must do more than "rest upon the mere allegations . . . of the [plaintiff's] pleading" or "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). "Conclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).
In Jeffreys v. City of New York, 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." 426 F.3d 549, 554 (2d Cir. 2005) (emphasis in original). To defeat summary judgment, "nonmoving parties may not rely on conclusory allegations or unsubstantiated speculation." Id. (citation and internal quotation marks omitted). "At the summary judgment stage, a nonmoving party must offer some hard evidence showing that [his] version of the events is not wholly fanciful." Id (citation and internal quotation marks 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). "[I]n a pro se case, the court must view the submissions by a more lenient standard than that accorded to formal pleadings drafted by lawyers." Govan v. Campbell, 289 F.Supp.2d 289, 295 (N.D.N.Y. 2003) (quoting Haynes v. Kerner, 404 U.S. 519, 520 (1972)) (other citations omitted). The Second Circuit has opined that the court is obligated to "make reasonable allowances to protect pro se litigants" from inadvertently forfeiting rights merely because they lack a legal education. Id. (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). 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, this does not mean that a pro se litigant is excused from following the procedural formalities of summary judgment, Govan, 289 F. Supp. 2d at 295, and "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)
When a plaintiff fails to respond to a defendant's motion for summary judgment, "[t]he fact that there has been no [such] response . . . does not . . . mean that the motion is to be granted automatically." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Rather, the Court must (1) determine what material facts, if any, are undisputed in the record; and (2) assure itself that, based on the undisputed material facts, the law indeed warrants judgment for the defendants. See Id.; Allen v. Comprehensive Analytical Grp., Inc., 140 F.Supp.2d 229, 232 (N.D.N.Y. 2001); L.R. 7.1(b)(3).
Plaintiff was sent a notice of motion (Dkt. No. 30) by Defendant's counsel as well as an attached notification of the consequences of failing to respond to a summary judgment motion. (Dkt. No. 30-1.) Plaintiff failed to submit any papers in opposition to summary judgment as noted above.
Defendant Thomsen argues that Plaintiff's Eighth Amendment claim of medical indifference should be dismissed because Plaintiff failed to properly exhaust his available administrative remedies, as required by the Prison Litigation Reform Act ("PLRA"), prior to filing this federal civil rights action. (Dkt. No. 30-2 at 3-6.) Defendant is correct.
Under the PLRA, "[n]o action shall be brought with respect to prison conditions under section 1983 . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). In order to properly exhaust administrative remedies under the PLRA, inmates are required to complete the administrative review process in accordance with the rules applicable to the particular institution to which they are confined. Jones v. Bock, 549 U.S. 199, 218 (2007) (citing Woodford v. Ngo, 548 U.S. 81, 88 (2006)). In New York state prisons, DOCCS has a well-established three-step inmate grievance program. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5 (2013).
Generally, the DOCCS Inmate Grievance Program ("IGP") involves the following procedure for the filing of grievances. First, an inmate must file a complaint with the facility's IGP clerk within twenty-one calendar days of the alleged occurrence. Id at § 701.5(a) (2010). A representative of the facility's IGRC has sixteen calendar days from receipt of the grievance to informally resolve the issue. Id at § 701.5(b)(1). If there is no such informal resolution, then the full IGRC conducts a hearing within sixteen calendar days of receipt of the grievance (id at § 701.5(b)(2)), and issues a written decision within two working days of the conclusion of the hearing. Id. at § 701.5(b)(3).
Second, a grievant may appeal the IGRC decision to the facility's superintendent within seven calendar days of receipt of the IGRC's written decision. Id. at § 701.5(c)(1). If the grievance involves an institutional issue (as opposed to a DOCCS-wide policy issue), the superintendent must issue a written decision within twenty calendar days of receipt of the grievant's appeal. Id at § 701.5(c)(3)(ii).
Third, a grievant may appeal to CORC within seven working days of receipt of the superintendent's written decision. Id. at § 701.5(d)(1)(I). CORC is to render a written decision within thirty calendar days of receipt of the appeal. Id. at § 701.5(d)(3)(ii).
Plaintiff filed a single grievance concerning the August 30, 2013, chair incident. (Dkt. No. 30-5 at ¶¶ 10-18.) CORC issued its decision on March 26, 2013. (Dkt. No. 1 at 12.) However, the grievance at no point mentioned Defendant Thomsen or medical personnel at Greene, nor did the grievance mention receiving inadequate medical care after the incident. (See Dkt. No. 30-8.)
Although it is appropriate to afford pro se inmates a liberal grievance pleading standard, the grievance may not be so vague as to preclude prison officials from taking appropriate measures to resolve the complaint internally. Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006). Consistent with this purpose, a prisoner must allege facts sufficient to alert corrections officials "to the nature of the claim," and "provide enough information about the conduct" at issue "to allow prison officials to take appropriate responsive measures." Singh v. Lynch, 460 Fed.Appx. 45, 47 (2d Cir. 2012) (quoting Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004)). Even though "a New York state prisoner is not required to name responsible parties in a grievance in order to exhaust administrative remedies," the inmate is required to "provide a specific description of the problem." Espinal v. Goord, 558 F.3d 119, 126-27 (2d Cir. 2009) (citing NYCRR § 701.7(a)(1)(i)).
While Plaintiff is not required to specifically name Defendant Thomsen in his grievance, Plaintiff's failure to specifically describe any problem in his grievance concerning medical treatment after the incident did not give the facility enough information to investigate allegations against Defendant Thomsen. See Hemby v. Ferrari, No. 9:13-CV-613, 2014 WL 1584160, at *26 (N.D.N.Y. Apr. 21, 2014) (holding that Plaintiff had failed to exhaust medical indifference claim alleging denial of medication for an ulcer where Plaintiff had filed a grievance only alleging improper wound care of the ulcer.)
Plaintiff filed a single grievance concerning the August 30, 2013, chair incident. (Dkt. No. 30-5 at ¶¶ 10-18.) In the grievance, Plaintiff stated that he was hit in the head with a chair while handcuffed and subsequently taken to Albany Medical Center where he received staples before being released. (Dkt. No. 30-8.) Plaintiff described the assault as occurring in a sergeant's office with three sergeants and two correction officers present. Id. Plaintiff admitted he did not know the names of the correction officers but would be able to identify them in a picture. Id. Plaintiff did identify Sergeant Barkman and Sergeant Potter in the grievance. Id. Yet, in that same grievance, Plaintiff failed to mention Defendant Thomsen by name or profession, failed to reference any medical personnel, and failed to reference receiving inadequate medical treatment. Id. Because Plaintiff's grievance contained no mention of inadequate medical care after the incident, Plaintiff's Eighth Amendment medical indifference claim against Defendant Thomsen has not been exhausted.
However, on June 6, 2016, the Supreme Court rejected the "special circumstances" exception applied by many circuits, and held that "[c]ourts may not engraft an unwritten `special circumstance' onto the PLRA's exhaustion requirement." Ross v. Blake, 578 U.S. ___ (2016) available at 2016 WL 3128839, at *11 (June 6, 2016). In Ross, the question before the Court was whether there is a "special circumstances" exception under the PLRA when the inmate erroneously believed that he had satisfied the exhaustion requirement. 2016 WL 3128839, at *3. In an opinion by Justice Elena Kagan, the Supreme Court held that there is no such exception:
Id. (internal citation omitted).
The Supreme Court's rejection of the "special circumstances" exception, however, still does not end a court's review "because the PLRA contains its own, textual exception to mandatory exhaustion." Id. at *7. Under the PLRA, "the exhaustion requirement hinges on the `availab[ility]' of administrative remedies: An inmate, that is, must exhaust available remedies, but need not exhaust unavailable ones." Id. Thus, courts are still tasked with determining whether or not a prisoner's administrative remedies are, in fact "available."
To guide courts in this analysis, the Supreme Court identified "three kinds of circumstances" in which an administrative remedy, "although officially on the books," is not "available." Id.
First, "an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates." Id. "Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use." Id. at *8. Finally, an administrative remedy is not "available" when "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id.
In light of the above, the Court must now consider whether Plaintiff exhausted his available administrative remedies regarding his Eighth Amendment medical indifference claim before commencing this action.
Here, Plaintiff has not claimed that the administrative procedure was unavailable to him. To the contrary, Plaintiff utilized the administrative procedure to file a grievance concerning the August 30, 2013, incident.
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.
SHAMEL WRIGHT, 346 Furman Street, 1
HON. ERIC T. SCHNEIDERMAN, Attorney General for the State of New York, The Capitol, OF COUNSEL: RYAN E. MANLEY, ESQ., Ass't Attorney General, Albany, NY 12224, Attorneys for Defendant James Thomsen.
DAVID N. HURD, United States District Judge
Based upon a de novo review of the Report-Recommendation, the Report-Recommendation is accepted in whole.
Therefore, it is ORDERED that:
1. Defendant James Thomsen's motion for summary judgment (ECF No. 30) is
2. All claims against defendant James Thomsen are
3. The Clerk serve a copy of this Decision and Order upon plaintiff in accordance with the Local Rules.
The Clerk of the Court shall enter judgment and close this case.
IT IS SO ORDERED.
Home, 155 F. 3d at 31, n. 4.
