KENNETH M. KARAS, District Judge.
Charles T. McIntosh ("Plaintiff"), proceeding pro se, brings this action against the United States of America, Patrick Conklin ("Conklin"), Monica Recktenwald ("Recktenwald"), Matthew Whinnery ("Whinnery"), David Susney ("Susney"), Jason Diehl ("Diehl"), Derek Hickman ("Hickman"), Andrew Dachisen ("Dachisen"), Joseph Miraglia ("Miraglia"), and Brad Magie ("Magie"), asserting a host of constitutional violations. Defendants move to dismiss on a variety of grounds, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Additionally, Plaintiff seeks an injunction preventing Defendants from destroying certain evidence and requesting sanctions in connection with Defendants' failure to preserve those materials. For the reasons that follow, Defendants' Motion is granted in part, and Plaintiff's Motion is denied in part.
The following facts are taken from Plaintiff's Amended Complaint and, for purposes of resolving Defendants' Motion only, are presumed true.
At the time of the events giving rise to the instant Amended Complaint, Plaintiff was an inmate in Unit D-B at Otisville Correctional Facility ("Otisville"), and Conklin was a corrections officer at least initially in Unit D-A. (See Am. Compl. ¶¶ 1-2, 6 (Dkt. No. 22).) At some point in October or November 2013, after Conklin and another corrections officer completed the 10:00 pm lockdown count, Conklin told the inmates in Unit D-B that, "if he continue[d] to smell [cigarette] smoke in the dorm, he was going to turn off the TV[]s every night at 10[]pm." (See id. ¶¶ 1-2.)
On December 6, 2013, Plaintiff walked out of Unit D-B "at the call of Insulin-line" and, after dinner, walked back to his unit, which required him to walk through Unit D-A. (Id. ¶ 7.) As he was doing so, for under two minutes, he fielded a "legal question" from an inmate in Unit D-A "about the drug law[]s being litigated on by [C]ongress." (See id. ¶¶ 8-9.) That inmate followed Plaintiff into Unit D-B, (see id. ¶ 9), but was not issued an incident report, "[s]howing a clear case of targeting, personal vendetta, and retaliation against this Plaintiff etc.," (see id. ¶¶ 27-28). Plaintiff entered his living area, and, about 30 minutes later, Conklin entered Unit D-B, walked past everyone directly to Plaintiff, and asked for his ID. (Id. ¶¶ 10-12.) Plaintiff asked Conklin why, and Conklin said that "he didn[']t have to tell [Plaintiff] why." (Id. ¶ 12 (internal quotation marks omitted).) When Plaintiff replied that Conklin indeed had to tell Plaintiff because Conklin was "not [Plaintiff's] unit officer" and because Plaintiff "should know why [his] ID [was] being requested," Conklin replied that Plaintiff would "find out soon." (See id. (internal quotation marks omitted).) Conklin then approached the same Unit D-B inmates whom he had earlier walked past and asked for their IDs in an attempt to avoid creating the impression that he was "singling Plaintiff out" or otherwise "personally attacking . . . Plaintiff." (See id. ¶ 13.) These inmates were not issued incident reports. (See id.) Plaintiff asked the inmates why Conklin was taking the inmates' IDs, and, after the inmates said that "[Conklin] was writing . . . up incident report[s] for being up-front in his unit," Plaintiff informed the inmates "that he has [Plaintiff] fucked up because [Plaintiff] [doesn't] associate with anyone in [Unit] D-A like that." (See id. ¶ 14.) Conklin heard this conversation as he was exiting Unit D-B. (Id. ¶ 15.)
Plaintiff then went to the office of the unit officer, whom he told that "Conklin just came . . . and took [Plaintiff's] ID for some unknown reason." (Id. ¶ 16.) The unit officer said that he would call Conklin and find out why, after which time Plaintiff's case manager, Ms. Ferdula ("Ferdula"), came into Unit D-B, had a conversation with the unit officer, and called Plaintiff into her office to ask what happened between Plaintiff and Conklin. (Id. ¶¶ 16-17.) After Plaintiff told her, she asked him to wait outside while she spoke to the unit officer and the other inmates whose IDs were taken. (Id. ¶ 17.) Ferdula then told Plaintiff that he was being called into the lieutenant's office. (Id.)
As Plaintiff entered the lieutenant's office, he noticed Lt. Munios ("Munios"), who supposedly had a problem with Plaintiff because he "exerc[ised] his due process right to grieve" by filing grievances on staff and others. (Id. ¶ 18.) Plaintiff knew that he would be assigned to the Special Housing Unit ("SHU") because the lieutenant finally had the opportunity. (Id.) Lt. Heli ("Heli") told Plaintiff what Conklin wrote in his incident report and then asked Plaintiff what happened. (Id. ¶ 19.) Plaintiff told the lieutenants the statement that he made was to directed to the inmates to whom he was talking, that Conklin was already out the door, and that "in no way was any threatening statement . . . made directly to . . . Conklin." (Id.) Plaintiff told the lieutenants that they could check his record and that Plaintiff was not one to disrespect staff or a fellow inmate in all his years in prison. (Id.) Plaintiff explained that he had just finished a heated phone call and was upset but never made a threatening statement toward Conklin. (Id.) Munios said that, if it were up to him, he would throw Plaintiff in the SHU right then and there. (Id. ¶ 20.) Heli then told Plaintiff that he would be placed in the SHU for the weekend to "`cool off' just in case [Plaintiff] made another phone call and g[o]t more upset and [took] it out on his officer." (Id. ¶ 21.) Plaintiff then said that that sort of behavior was "not his styl[e]" and that it was not "in his jacket [sic] to ever ac[t] like that." (Id. ¶ 22.) Plaintiff then said that sending him to the SHU was a "retaliation act [for] Plaintiff filing on staff" and that Munios "was tak[ing] this opportunity to place Plaintiff in the SHU." (Id. (internal quotation marks omitted).) Munios stated that, "even though [P]laintiff made it direct or indirect to the officer, he still heard it and took it the way he wanted."
At 7:20 pm that evening, Plaintiff was placed in the SHU, where he received a "false and fraudulent" incident report made by Conklin, which indicated that, upon asking Plaintiff for his ID card, Plaintiff responded in a very loud manner that Conklin (1) "need[ed] a reason to take it" and (2) was "fucking with the wrong guy." (Id. ¶ 24 (internal quotation marks omitted).) With regard to the first statement, Plaintiff concedes that he uttered these words but disputes that he said them in a loud manner. (See id. ¶ 25.) With respect to the second sentence, however, Plaintiff claims that Conklin "altered" his statement because "Plaintiff is a[n] African American" and, apparently consequently, "has never used the word [`]guy['] in his vocabulary," and the relevant statement and conversation "was taking place among inmates, not inmates and officers." (Id. ¶ 26.)
On March 11, 2014, the SHU lieutenant and officer refused to take Plaintiff to the shower, despite it being no more than ten feet from his cell. (Id. ¶ 58.) Magie, despite knowing that Plaintiff is handicapped, walks with a cane, and has a back injury and swollen feet, nonetheless refused to allow Plaintiff to use the closest shower and instead "intended to walk Plaintiff on the other[ ]side of the building without his cane." (Id.) Magie also refused to allow Plaintiff to use a "belly-chain" with the handcuffs, "which [Magie] intended to handcuff Plaintiff [with] behind his back." (Id.)
Plaintiff refused to be "placed on the other side of the building" and to be cuffed from the back. (Id. ¶ 59.) In response, Magie went ballistic, yelling, "This is [my] fucking house! You have to do what I say to do! Not the other way around! You don't tell me what you want! I tell you what I want! I run things back here! etc." (Id.) Plaintiff was then forced to wash up in the cell-sink of a "very severe freezing cell," in which Magie made him remain without clothing despite Plaintiff repeatedly saying that he was naked and freezing. (Id. ¶ 60.) Plaintiff called for the SHU lieutenant, but he did not answer, so Plaintiff banged on and kicked the SHU cell door. (See id. ¶ 61.) The lieutenant then came to the cell-door, where Plaintiff explained the situation to him. (Id.) The SHU lieutenant requested that the SHU officer provide Plaintiff with clothing, to which Magie responded that "he [would] get [the clothes] when he's ready[] because . . . Plaintiff [doesn't] run shit back here." (Id. ¶ 62.) Magie then continued to ignore Plaintiff's living conditions, instead walking by Plaintiff's cell without giving Plaintiff any clothing. (Id. ¶ 63.) Fifteen minutes later, Plaintiff kicked and banged on the cell door for the lieutenant's attention to show him that Magie still had not provided Plaintiff with clothing. (Id. ¶ 64.) As a result, the lieutenant then turned around and took clothing off of a cart across from Plaintiff. (See id.)
At some point in 2014, Plaintiff received a letter from an attorney regarding civil action settlement conditions. (Id. ¶ 65.) Plaintiff forwarded a request to Mr. Repecki ("Repecki"), the unit manager, who told Plaintiff that he would instruct Mr. Demeo ("Demeo"), Plaintiff's counselor, to provide Plaintiff with a legal phone call. (Id.)
On the day Plaintiff was packing his property to prepare for his upcoming transfer from Otisville to MDC Brooklyn, Plaintiff told Demeo that Repecki indicated that he would tell Demeo that Plaintiff was to be allowed to place a call to an attorney. (Id. ¶ 66.) Demeo responded that he just met with Repecki, who had said nothing about providing Plaintiff with a legal call. (Id.) Demeo said that, in any event, Plaintiff was "outta here" and "[didn't] need any m[]ore legal calls to the law firm of Reed Smith LLP." (Id. ¶ 66.)
A week later, Plaintiff was transferred to MDC Brooklyn. (Id.) The legal proceedings would be delayed for a month until Plaintiff reached his destination at F.C.I. Terre Haute. (Id.)
Just over three weeks after Plaintiff was initially put in the SHU, on December 28, 2013, he filed his "BP-8 informal resolution for the submi[ss]ion of a false incident report, `official/legal' filing against . . . Plaintiff to the D-unit counselor, Mr. Demeo," which was then submitted to Whinnery on December 30, 2013.
In early January 2014, Plaintiff received Diehl's response to Plaintiff's BP-8, which said, among other things, that allegations such as Plaintiff's are "taken seriously" and received "an appropriate amount of review" but that, "[d]ue to the privacy interest of the staff member which [Plaintiff] name[d], [the Bureau of Prisons] [was] unable to disclose to [Plaintiff] any findings or the result o[f] [the Bureau's] review of th[e] matter." (Id.; see also Pl.'s Opp'n ¶ 3; Pl.'s Opp'n Ex. C (BP-8 Response).) Afterwards, Conklin returned to work on his regular schedule and continued to target Plaintiff with "pat-searches" and "verbal com[m]ents degrading Plaintiff's effort[s] of filing his administrative remedy grievances." (Am. Compl. ¶ 32.) That same day, Plaintiff submitted his BP-9 administrative remedy to Dachisen, who turned Plaintiff's BP-9 over to Special Investigative Services ("SIS") instead of the administrative remedy coordinator for the facility. (Id. ¶ 33; see also Pl.'s Opp'n ¶ 4; Pl.'s Opp'n Ex. D (BP-9 Form and Response).)
A few weeks later, Hickman summoned Plaintiff to the lieutenant's office to address his BP-9 grievance form.
On February 12, 2014, Recktenwald responded to Plaintiff's BP-9, stating that, "[o]n December 10, 2013, the UDC found [Plaintiff] committed [Code] 312, Insolence Towards a Staff Member and sanctioned, accordingly" and that "[a]dditionally, [Plaintiff] also admitted that [he] made the statement in reference to the staff member." (Id. ¶ 41; see also Pl.'s Opp'n ¶ 5; Pl.'s Opp'n Ex. E (BP-9 Response).)
Sometime around February 16 or 17, 2014, Conklin, who was assigned to Unit D-B for the quarter, called Plaintiff to come retrieve his mail. (See id. ¶ 36.) About 15 to 30 minutes after Plaintiff did so and returned to his living area, Conklin called Plaintiff to an office where Conklin "with a sm[i]rk on his face" handed Plaintiff his BP-9. (Id.) About 30 minutes later, Conklin walked out of his office, directly to Plaintiff's living area, and started searching. (Id. ¶ 37.) Conklin made two or three more visits to Plaintiff's living area that same night. (Id.) At the 5:00 pm call for insulin, Conklin waited outside the Unit D-B doors where he stopped Plaintiff and questioned him about his double mattress that Plaintiff had had since before Conklin began working there. (Id. ¶ 38.) "Upon return back to [the] D-B unit[,] . . . Conklin stood outside the entrance to D-B from the D-A unit [and] . . . threatened . . . Plaintiff[,] stating[,] `if you don't put that second mattress in[ ]front of my office[,] you will be going to the SHU.'" (Id.) Plaintiff then immediately took the mattress off his bed and put it in front of Conklin's office. (Id. ¶ 39.) That night, Conklin "repeatedly made his rounds stric[t]ly at Plaintiff's living area." (Id. ¶ 40.)
On February 20, 2014, Plaintiff filed a "Notice of Motion for Restraining O[r]der against [Bureau of Prisons ("BOP")] staff employee at [Otisville], on . . . Conklin for har[]assment, which was being done with malicious intent[] [t]o the United States District Court sentencing Judge[] William C. Griesbach, to the United States Attor[ne]y General, Eric Holder, Jr., and to the B[OP] Regional O[]ffice." (Id. ¶ 43; see also Pl.'s Opp'n ¶ 16; Pl.' Opp'n Ex. P. (E.D. Wis. Mot.); Pl.'s Opp'n Ex. V (E.D. Wis. Mot.).)
In March 2014, Plaintiff filed a "complaint of reprisal/abridgment of right to redress Plaint[]iff's filing complaint of retaliation." (Id. ¶ 47.) "Stating that at around 9:15 or 9:30am, Plaintiff [was] es[]corted off the F.C.I. Otisville compound and [was] place[d] in the SHU for filing complaint."
In his Amended Complaint and Opposition to Defendant's Motion, Plaintiff also alleged he raised other issues with various prison and other governmental officials.
First, and apparently not directly connected with his claims in this case, Plaintiff complained that he believed the prison was tampering with his mail. (See Pl.'s Opp'n ¶ 6; Pl.'s Opp'n Ex. F (Letter from M. Whinnery to Plaintiff (Sept. 30, 2013)).)
Additionally, by letter dated February 24, 2014, Plaintiff requested that Attorney General Eric Holder and a component of the Department of Justice issue a restraining order against Conklin and suspend him without pay for 60 days because, Plaintiff asserted, Conklin harassed him and retaliated against him. (See Pl.'s Opp'n Ex. O (Letter from Pl. to "Special Investigation Attorney General" (Feb. 24, 2014)); see also Pl.'s Opp'n ¶ 15.)
Several days later, on February 26, 2014, at around 12:30 pm, the warden, "both A.W's Captain," the health service administrator, warden assistant, and the unit manager for D-Unit were made aware of Plaintiff's living conductions in cell #209 of the SHU. (Am. Compl. ¶ 52.) Additionally, on March 4, 2014, Plaintiff wrote a "notice" to Recktenwald, which was submitted to her the next day. (Id. ¶ 53; see also Pl.'s Opp'n ¶ 7; Pl.'s Opp'n Ex. G (Letter from Pl. to Warden (Mar. 4, 2014)).) That notice addressed four issues: (1) that Plaintiff signed an affidavit on February 24, 2014 with Susney but had not yet received a copy of it despite repeatedly asking for one; (2) that Plaintiff wears hand braces for both hands but that neither the SHU nor the medical staff had replaced a set as promised on February 25, 2014; (3) that there was no heat in Plaintiff's cell, which, with all the windows being either open or broken, made the experience akin to being outside at night in the middle of a blizzard when the temperature is fifteen degrees below zero, causing Plaintiff's feet, toes, and hands to be frozen ever since he was placed in the SHU; (4) that Plaintiff is being "subjected to cruel and unusual punishment by [her] administration" and that Plaintiff was "placing [her] on notice with this document of this deliberate indifference, cruel and unusual punishment[,] . . . reprisal[,] and abridgment of [Plaintiff's] right to redress and grieve an injustice acts [sic] upon [his] person." (See Am. Compl. ¶ 53; Pl.'s Opp'n Ex. G (Letter from Pl. to Warden (Mar. 4, 2014)).)
Next, Plaintiff submitted a letter dated February 27, 2014 to "special investigation attorney general," in the Civil Rights Division's Special Litigation Section at the Department of Justice complaining about, among other things, the fact that Plaintiff was photographed by the compound officer, that his cell was freezing, that Plaintiff was not permitted a pair of medical shoes, that he does not have hand braces, and that he was being retaliated against. (See generally Pl.'s Opp'n Ex. Q (Feb. 27, 2014 complaint packet); see also Pl.'s Opp'n ¶ 17.) Although it is unclear whether it relates to Plaintiff's February 27 letter, Plaintiff received a letter dated April 3, 2014 from Jonathan Smith, chief of the Special Litigation Section of the Department of Justice, thanking him for his letter and indicating that the section "d[id] not have the resources to follow-up [sic] on every letter," but he "[would] review [Plaintiff's] letter to decide whether it [was] necessary to contact [Plaintiff] for additional information." (Pl.'s Opp'n Ex. S (Letter from Jonathan Smith to Pl. (Apr. 3, 2014)), at unnumbered 1; see also Pl.'s Opp'n ¶ 19.) The letter stressed that "[t]he Special Litigation Section only handles cases that arise from widespread problems that affect groups of people" and that it could not "assist with individual problems" or "help [inmates] recover damages or any personal relief." (Pl.'s Opp'n Ex. S (Letter from Jonathan Smith to Pl. (Apr. 3, 2014)), at unnumbered 1.) In a separate letter dated April 3, 2014, also from Jonathan Smith, the Special Litigation Section informed Plaintiff that it "d[id] not have jurisdiction in [Plaintiff's] matter" but "believe[d] that authority for handling this matter may rest with the Federal Bureau of Prisons" to whom it would refer the matter. (Pl.'s Opp'n Ex. T (Letter from Jonathan M. Smith to Pl. (Apr. 3, 2014)); see also Pl.'s Opp'n ¶ 20.) That letter was sent to the BOP by letter dated April 3, 2014, which, in turn, informed Plaintiff on May 20, 2014 that a review of it revealed that it contained issues that should first be brought to the attention of prison staff. (See Pl.'s Opp'n Ex. Q (Feb. 27, 2014 complaint packet) at unnumbered 1-3.)
On March 5, 2014, Plaintiff also "placed the warden on notice" that he was being prevented from using the phone as needed, that he was not housed in the SHU for breaking any BOP policies, and that it was "cruel and unusual punishment" and "deliberate indifference" to be subjected to cold confinements yet not charged with a crime or violation. (See Am. Compl. ¶ 54; see also Pl.'s Opp'n ¶ 13; Pl.'s Opp'n Ex. M (Letter from Pl. to Warden (Mar. 5, 2014)).) That same day, Plaintiff wrote a letter addressed to Mary Patrice Breun at the Department of Justice, complaining of a number of issues, including that he had a freezing cell, was not permitted to wear his medical shoes, needs to wear hand braces, was forced to give up his mattress, and was retaliated against. (See generally Pl.'s Opp'n Ex. N (Letter from Pl. to Mary Patrice Breun (Mar. 5, 2014)); see also Pl.'s Opp'n ¶ 14.)
At the breakfast serving the following day, Plaintiff contacted the SHU lieutenant and informed him that Plaintiff was in the SHU "right now for a restraining order against . . . Conklin and `for [his] protection' as SIS claim [sic]," but that "the same officer [was] at [the] door feeding [Plaintiff]" (See Am. Compl. ¶ 56; Pl.'s Opp'n Ex. K (Letter from Pl. to SHU lieutenant (Mar. 6, 2014)); see also Pl.'s Opp'n ¶ 11.) Also on March 6, Plaintiff submitted a letter to the SHU lieutenant complaining that he had not yet received a copy of his signed affidavit. (See Pl.'s Opp'n ¶ 9; Pl.'s Opp'n Ex. I (Letter from Pl. to SHU lieutenant (Mar. 6, 2014)).)
Additionally, the next morning, Plaintiff submitted to the SHU lieutenant a request to make more than one phone call, on the grounds that he was not placed in the SHU for breaking BOP policies. (See Am. Compl. ¶ 55; Pl.'s Opp'n Ex. L (Letter from Pl. to SHU lieutenant (Mar. 7, 2014)); see also Pl.'s Opp'n ¶ 12.)
On March 9, 2014, Plaintiff submitted a letter requesting to speak to Susney, who, the letter said, was on duty at that time. (Pl.'s Opp'n ¶ 10; Pl.'s Opp'n Ex. J (Letter from Pl. (March 9, 2014)).) On March 11, 2014, Plaintiff wrote a note directed to Demeo indicating that Plaintiff "need[ed] to talk to [Demeo] about being authorized to have a third (3rd) box of legal documents transferred with [Plaintiff] and [his] property." (Pl.'s Opp'n Ex. W (Letter from Plaintiff to Demeo (Mar. 11, 2014)) (emphasis omitted).) Finally, on March 12, 2014, Plaintiff again informed the warden that he was "being hindered from contacting his lawyers[] [and] making a legal call" by virtue of the fact that he was being held in the SHU despite not violating any BOP policies and that he was "restricted" in his normal activities and was "subjected to one call every 30 days." (See Am. Compl. ¶ 57; Pl.'s Opp'n Ex. H (Letter from Pl. to Warden Recktenwald (Mar. 12, 2014)); Pl.'s Opp'n Ex. X (Letter from Pl. to Warden Recktenwald (Mar. 12, 2014)) see also Pl.'s Opp'n ¶ 8.)
On September 29, 2015 Plaintiff brought suit against Conklin, Dachisen, Diehl, Hickman, Recktenwald, Susney, Whinnery, the United States of America, and a number of John and Jane Doe defendants, and, in that Complaint, requested the appointment of counsel. (Dkt. No. 1.) That same day, Plaintiff requested to proceed in forma pauperis ("IFP"), (Dkt. No. 2), and file a motion entitled "Complaint Supplemental `Emergency Ex Parte' Motion to Preserve Evidence," (Dkt. No. 4), which the Court denied without prejudice until Plaintiff served Defendants, (Dkt. No. 8). Plaintiff also moved to vacate the order granting his IFP status, (Dkt. No. 5), relief the Court granted shortly on December 1, 2014, (Dkt. No. 6). On December 10, 2014, the Court denied Plaintiff's request for the appointment of counsel without prejudice. (Dkt. No. 9.)
On April 9, 2015, Plaintiff filed an Amended Complaint against Conklin, Dachisen, Diehl, Susney, Hickman, Recktenwald, Whinnery, Miraglia, Magie, and the United States of America. (Dkt. No. 22.) The next day, Defendants submitted a pre-motion letter in advance of their Motion to Dismiss, (Dkt. No. 19), and the Court set a briefing schedule for that Motion, (Dkt. No. 21). On May 20, 2015, Defendants filed their Motion to Dismiss and accompanying papers, (Dkt. Nos. 23-27); Plaintiff filed his opposition on June 25, 2015, (Dkt. No. 28); and Defendants filed their Reply on July 14, 2015, (Dkt. No. 29). On August 4, 2015, Plaintiff filed (1) a document entitled "Pro Se Plaintiff's Sworn Affidavit in Support of Response to Defendant's Motion to Dismiss Amended Complaint Sworn Affidavit of Plaintiffs' [sic] Proof of PLRA Compliance," and (2) a Motion entitled "Complaint Supplemental `[E]mergency Ex Parte' Motion to Preserve Evidence," which sought preservation of certain video footage and logbooks. (Dkt. Nos. 31-32.) On August 21, 2015, Defendants filed their opposition to this latter Motion, along with accompanying papers. (Dkt. Nos. 34-35.) On September 2, 2015, Plaintiff filed a document entitled "Pro Se Motion for Release Detained Legal Document[]s/Access to Law[ ]Library," (Dkt. No. 37), to which Defendants responded on September 10, 2015, (Dkt. Nos. 38-39), and upon which the Court ruled on September 10, 2015, (Dkt. No. 40), and as to which it clarified its ruling on September 18, 2015 (Dkt. No. 44).
On December 9, 2015 Plaintiff filed a document entitled "Motion for Release of Legal Property/Documents and Access to Law-Library," (Dkt. No. 46), to which Defendants responded on December 30, 2015, (Dkt. Nos. 49-52). Additionally, on December 22, 2015, Plaintiff filed a document entitled "Pro Se Plaintiff's Response and Sanction for Spoliation of Evidence Motion to the Defendant[]s['] Memorandum of Law in Response to Plaintiff's Motion To Preserve Evidence," (Dkt. No. 48), comprising a belated reply in support of his earlier motion for preservation of documents and a request for an adverse inference relating to that same documents. Subsequently, Plaintiff, characterizing Defendants' December 30, 2015 opposition as a "motion," requested on January 20, 2016 an additional 30 days to respond, so that he could "submit exhibits" and "reach access to the SHU Law Library," (Dkt. No. 53), relief the Court denied on January 22, 2016, on the grounds that a reply was not necessary, (Dkt. No. 54). Shortly thereafter, Defendants, noting a new argument raised in Plaintiff's reply, sought leave to file a sur-reply on February 11, 2016, (Dkt. No. 58), which the Court granted the same day, (Dkt. No. 59). Defendants then filed their sur-reply. (Dkt. Nos. 61-64.)
Additionally, on February 5, 2016, Plaintiff filed without permission a 105-page motion, entitled "Pro Se Plaintiff [sic] Motion for Leave to File Supplemental Pleadings [sic] Pursuant to Federal Rules [sic] of Civil Procedure 15(d) & Response to the Government Motion to Dismiss," (Dkt. 55), which the Court noted appeared to lack relevance to this lawsuit, and granting Plaintiff permission to submit an explanation in a two-page letter by February 29, 2016, (Dkt. No. 57). Pursuant to Plaintiff's requests, (Dkt. Nos. 65, 67), the Court granted Plaintiff two final extensions, (Dkt. Nos. 66, 68).
"The standards of review for a motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction and under 12(b)(6) for failure to state a claim are `substantively identical.'" Gonzalez v. Option One Mortg. Corp., No. 12-CV-1470, 2014 WL 2475893, at *2 (D. Conn. June 3, 2014) (quoting Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir. 2003)); see also Neroni v. Coccoma, No. 13-CV-1340, 2014 WL 2532482, at *4 (N.D.N.Y. June 5, 2014) (same), aff'd, 591 F. App'x 28 (2d Cir. 2015). "In deciding both types of motions, the Court must accept all factual allegations in the complaint as true, and draw inferences from those allegations in the light most favorable to the plaintiff." Gonzalez, 2014 WL 2475893, at *2 (internal quotation marks omitted); see also Seemann v. U.S. Postal Serv., No. 11-CV-206, 2012 WL 1999847, at *1 (D. Vt. June 4, 2012) (same). However, "[o]n a Rule 12(b)(1) motion, . . . the party who invokes the Court's jurisdiction bears the burden of proof to demonstrate that subject matter jurisdiction exists, whereas the movant bears the burden of proof on a motion to dismiss under Rule 12(b)(6)." Gonzalez, 2014 WL 2475893, at *2; see also Sobel v. Prudenti, 25 F.Supp.3d 340, 352 (E.D.N.Y. 2014) ("In contrast to the standard for a motion to dismiss for failure to state a claim under Rule 12(b)(6), a plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." (internal quotation marks omitted)). This difference as to the allocation of the burden of proof is "[t]he only substantive difference" between the standards of review under these two rules. Smith v. St. Luke's Roosevelt Hosp., No. 08-CV-4710, 2009 WL 2447754, at *9 n.10 (S.D.N.Y. Aug. 11, 2009), adopted by 2009 WL 2878093 (S.D.N.Y. Sept. 2, 2009); see also Fagan v. U.S. Dist. Court for S. Dist. of N.Y., 644 F.Supp.2d 441, 446-47 & n.7 (S.D.N.Y. 2009) (same).
"A federal court has subject matter jurisdiction over a cause of action only when it has authority to adjudicate the cause pressed in the complaint." Bryant v. Steele, 25 F.Supp.3d 233, 241 (E.D.N.Y. 2014) (internal quotation marks omitted) (quoting Arar v. Ashcroft, 532 F.3d 157, 168 (2d Cir. 2008), vacated and superseded on reh'g on other grounds, 585 F.3d 559 (2d Cir. 2009) (en banc)). "Determining the existence of subject matter jurisdiction is a threshold inquiry[,] and a claim is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (internal quotation marks omitted), aff'd, 561 U.S. 247 (2010); see also N.Y. State Citizens' Coal. for Children v. Carrion, 31 F.Supp.3d 512, 516 (E.D.N.Y. 2009) (same).
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alterations, citations, and internal quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil Procedure "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement." Id. (internal quotation marks and alterations omitted). Instead, a complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. Although "once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint," id. at 563, and a plaintiff must allege "only enough facts to state a claim to relief that is plausible on its face," id. at 570, if a plaintiff has not "nudged [his or her] claim[ ] across the line from conceivable to plausible, the[ ] complaint must be dismissed," id.; see also Iqbal, 556 U.S. at 679 ("Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where 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 `show[n]'—`that the pleader is entitled to relief.'" (second alteration in original) (citation omitted) (quoting Fed. R. Civ. P. 8(a)(2))); id. at 678-79 ("Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.").
For the purposes of Defendants' Motion To Dismiss, the Court is required to consider as true the factual allegations contained in the Amended Complaint. See Ruotolo v. City of N.Y., 514 F.3d 184, 188 (2d Cir. 2008) ("We review de novo a district court's dismissal of a complaint pursuant to Rule 12(b)(6), accepting all factual allegations in the complaint and drawing all reasonable inferences in the plaintiff's favor." (internal quotation marks omitted)); Gonzalez v. Caballero, 572 F.Supp.2d 463, 466 (S.D.N.Y. 2008) (same). "In adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken." Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (internal quotation marks omitted). Moreover, it is appropriate to consider statements made by Plaintiff "submitted in response to a defendant[']s request for a premotion conference" for the purpose of resolving the instant Motion. Jones v. Fed. Bureau of Prisons, No. 11-CV-4733, 2013 WL 5300721, at *2 (E.D.N.Y. Sept. 19, 2013). Finally, the Court construes "the submissions of a pro se litigant . . . liberally" and interprets them "to raise the strongest arguments that they suggest." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and some italics omitted).
Defendants have moved to dismiss portions of Plaintiff's claims on a variety of grounds. The Court will address each in turn.
In his Amended Complaint, Plaintiff names the United States of America as a defendant, (see Am. Compl. 1), and, further, specifies that he brings suit against "the above Defendant(s) . . . acting in their official and in their individual capacities," (id. at 2). Defendants, however, argue (1) that Plaintiff's claims against the individual Defendants in their official capacities are also considered suits against the United States, (Mem. of Law of Defs. in Supp. of their Mot. To Dismiss the Am. Compl. ("Defs.' Mem.") 20 (Dkt. No. 24)), (2) that the United States has not waived sovereign immunity for constitutional torts, (id.), and (3) that, to the extent that Plaintiff tries to allege a tort claim, it fails for failure to exhaust his administrative remedies under the Federal Tort Claims Act ("FTCA"), (id. at 20-21 n.8). Plaintiff responds that, while he has "show[n] . . . that all 4-[ph]ases of exhaustion under [the Prison Litigation Reform Act] w[]ere completed, the retaliat[ory] transfer of Plaintiff deter[r]ed his exhaustion to the Federal Tort Claim Act § 2671 filing." (Pl.'s Opp'n 29.) Therefore, the Court is faced with two questions: (1) can Plaintiff bring a Bivens claim against the individual Defendants in their official capacities; and (2) does the FTCA's administrative exhaustion requirement bar Plaintiff's suit?
"Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." Dep't of the Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999) (internal quotation marks omitted); see also Diaz v. United States, 517 F.3d 608, 611 (2d Cir. 2008) (same). "The waiver of sovereign immunity is a prerequisite to subject matter jurisdiction." Presidential Gardens Assocs. v. U.S. ex rel. Sec. of Hous. & Urban Dev., 175 F.3d 132, 139 (2d Cir. 1999). "[W]aivers of sovereign immunity must be `unequivocally expressed' in statutory text, and cannot simply be implied." Adeleke v. United States, 355 F.3d 144, 150 (2d Cir. 2004) (quoting United States v. Nordic Vill., Inc., 503 U.S. 30, 33 (1992)). Moreover, a plaintiff bears the burden to demonstrate that sovereign immunity has been waived. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) ("[T]he plaintiff bears the burden of establishing that [his or] her claims fall within an applicable waiver.").
"The United States has not waived its sovereign immunity with respect to claims that its employees have committed constitutional torts." Alston v. Sebelius, No. 13-CV-4537, 2014 WL 4374644, at *8 (E.D.N.Y. Sept. 2, 2014) (quoting Castro v. United States, 34 F.3d 106, 110 (2d Cir. 1994)). Accordingly, "Bivens claims do not lie against federal employees in their official capacities, because such suits are considered actions against the United States, and are barred by the doctrine of sovereign immunity." Wright v. Condit, No. 13-CV-2849, 2015 WL 708607, at *1 (S.D.N.Y. Feb. 18, 2015) (citing Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994)); see also Gonzalez v. Shahnoon, No. 15-CV-2961, 2015 WL 6118528, at *4 (E.D.N.Y. Oct. 16, 2015) ("Bivens claims against federal officials in their official capacity are barred by the sovereign immunity doctrine."). Therefore, to the extent that Plaintiff (1) brings a Bivens claim against the individual defendants in their official capacities, or (2) a tort claim against the United States directly, his claim is barred by the doctrine of sovereign immunity and must therefore be dismissed.
The same is not true, however, with respect to any claims that Plaintiff brings pursuant to the FTCA. Before delving into why that is so, the Court notes that it is less than entirely clear what Plaintiff's putative FTCA claim is. In the section of their Memorandum of Law in support of their Motion to Dismiss identifying Plaintiff's claims, Defendants do not even list an FTCA claim, (see Defs.' Mem. 10)—and seemingly for good reason: the only hints that Plaintiff attempts to bring such a claim are stray allusions to the FTCA or the "tort claim act" in the Amended Complaint's cover page or sections concerning venue and subject matter jurisdiction, (see Am. Compl. 1, 3), and his assertion for the first time in his Opposition that he was "deter[r]ed" from exhausting his FTCA claim, (Pl.'s Opp'n 29). Nevertheless, for the reasons that follow, whatever Plaintiff's FTCA claim consists of, the Court lacks jurisdiction over it.
In enacting that statute, Congress created a "limited waiver by the United States of its sovereign immunity and allows for a tort suit against the United States under specified circumstances." Liranzo v. United States, 690 F.3d 78, 85 (2d Cir. 2012) (quoting Hamm v. United States, 483 F.3d 135, 137 (2d Cir. 2007)); see also Regnante v. Sec. & Exch. Officials, No. 14-CV-4880, 2015 WL 5692174, at *13 (S.D.N.Y. Sept. 28, 2015) (same). An FTCA action "against the United States is the exclusive remedy for a suit for damages for injury resulting from the negligent or wrongful act or omissions of any employee of the Government while acting within the scope of his office or employment." Bearam v. Sommer, No. 12-CV-1858, 2013 WL 5405492, at *8 (S.D.N.Y. Sept. 25, 2013) (internal quotation marks omitted) (citing, inter alia, 28 U.S.C. § 2679(b)(1)); see also Finley v. Hersh, No. 12-CV-162, 2013 WL 3450270, at *7 (D. Vt. July 9, 2013) ("As to [the plaintiff's] tort claims, his exclusive remedy for monetary damages against the United States is under the Federal Tort Claims Act.").
When bringing an FTCA claim, plaintiffs are required to first exhaust their administrative remedies. See, e.g., Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005) ("The FTCA requires that a claimant exhaust all administrative remedies before filing a complaint in federal district court."); Morrow v. Dupont, No. 08-CV-3083, 2010 WL 1005856, at *3 (E.D.N.Y. Mar. 15, 2010) (same); see also 28 U.S.C. § 2675(a) ("An action shall not be instituted upon a claim against the United States for money damages for . . . personal injury . . . caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail."). The FTCA's exhaustion requirement is "jurisdictional and cannot be waived." Celestine, 403 F.3d at 82; see also Bastien v. Samuels, No. 14-CV-1561, 2015 WL 5008837, at *2 (E.D.N.Y. Aug. 21, 2015) (same); R.C.L. Infant v. Bronx-Lebanon Hosp. Ctr., No. 13-CV-6764, 2015 WL 1499745, at *4 (S.D.N.Y. Mar. 31, 2015) (same).
Here, Plaintiff has not attempted to plead or argue that he complied with the FTCA's exhaustion requirement. To the contrary, he argues that he was "deter[r]ed" from exhausting his FTCA claim. (Pl.'s Opp'n 29.) That is not the same thing, and, so, this Court simply does not have jurisdiction to entertain Plaintiff's FTCA claim, to the extent one even is to be found in the Amended Complaint. See Sherman-Amin-Braddox:Bey, 2011 WL 795855, at *2 (noting that "[t]he plaintiff bears the burden of pleading compliance with the FTCA's exhaustion requirement").
Defendants also argue that Plaintiff has failed to administratively exhaust the bulk of his claims—indeed, all of his claims save those relating to the December 6, 2013 dispute with Conklin—and that, accordingly, his allegations should be dismissed. (See Defs.' Mem. 12-16.)
The Prison Litigation Reform Act ("PLRA") provides that "[n]o action shall be brought with respect to prison conditions under [§] 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). The exhaustion requirement applies to all personal incidents while in prison, Porter v. Nussle, 534 U.S. 516, 532 (2002) (holding exhaustion is required for "all inmate suits about prison life, whether they involve general circumstances or particular episodes"); see also Johnson v. Killian, 680 F.3d 234, 238 (2d Cir. 2012) (same), and includes actions for monetary damages despite the fact that monetary damages are not available as an administrative remedy, Booth v. Churner, 532 U.S. 731, 741 (2001) (holding exhaustion is required "regardless of the relief offered through administrative procedures"). Moreover, the PLRA mandates "`proper exhaustion'—that is, `using all steps that the agency holds out, and doing so properly,' . . . [which] entails . . . `completing the administrative review process in accordance with the applicable procedural rules.'" Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011) (quoting Woodford v. Ngo, 548 U.S. 81, 88, 90 (2006)).
The Second Circuit has made clear that "administrative exhaustion is not a jurisdictional predicate," but rather "failure to exhaust is an affirmative defense." Giano v. Goord, 380 F.3d 670, 675 (2d Cir. 2004) (citation omitted). Accordingly, "defendants bear the burden of proof[,] and prisoner plaintiffs need not plead exhaustion with particularity." McCoy v. Goord, 255 F.Supp.2d 233, 248 (S.D.N.Y. 2003); see also Miller v. Bailey, No. 05-CV-5493, 2008 WL 1787692, at *3 (E.D.N.Y. Apr. 17, 2008) (explaining that the exhaustion requirement "must be pleaded and proved by a defendant" (citing Jones v. Bock, 549 U.S. 199, 216 (2007))). Further, "`[a] court may not dismiss for failure to exhaust administrative remedies unless it determines that such remedies are available.'" Rossi v. Fischer, No. 13-CV-3167, 2015 WL 769551, at *4 (S.D.N.Y. Feb. 24, 2015) (quoting Abney v. McGinnis, 380 F.3d 663, 668 (2d Cir. 2004)). The Second Circuit has recently made clear that "[w]hether an administrative remedy was available to a prisoner in a particular prison or prison system is ultimately a question of law," and "defendants bear the initial burden of establishing, by pointing to legally sufficient sources such as statutes, regulations, or grievance procedures, that a grievance process exists and applies to the underlying dispute." Hubbs v. Suffolk Cty. Sheriff's Dep't, 788 F.3d 54, 59 (2d Cir. 2015) (citation, alteration, and internal quotation marks omitted); see also Perez v. City of N.Y., No. 14-CV-7502, 2015 WL 3652511, at *2 (S.D.N.Y. June 11, 2015) (same).
Finally, the Second Circuit has recognized certain exceptions to the exhaustion requirement that apply when "(1) administrative remedies are not available to the prisoner; (2) defendants have either waived the defense . . . or acted in such a[ ] way as to estop them from raising the defense; or (3) special circumstances, such as a reasonable misunderstanding of the grievance procedures, justify the prisoner's failure to comply with the exhaustion requirement." Ruggiero v. Cty. of Orange, 467 F.3d 170, 175 (2d Cir. 2006) (citing Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004)). "[T]he resolution of the exhaustion issue does not necessarily fit exactly into any of these three categories, and a particular fact pattern may implicate one or a combination of these factors." Pagan v. Brown, No. 08-CV-724, 2009 WL 2581572, at *5 (N.D.N.Y. Aug. 19, 2009) (citing Giano, 380 F.3d at 677 n.6). Therefore, a motion to dismiss pursuant to Rule 12(b)(6) for failure to exhaust should be granted only if "nonexhaustion is clear from the face of the complaint, and none of the exceptions outlined by the Second Circuit are germane." Lovick v. Schriro, No. 12-CV-7419, 2014 WL 3778184, at *4 (S.D.N.Y. July 25, 2014) (alterations and internal quotation marks omitted); see also Lee v. O'Harer, No. 13-CV-1022, 2014 WL 7343997, at *3 (N.D.N.Y. Dec. 23, 2014) ("Dismissal under Rule 12(b)(6) for failure to exhaust is appropriate if such failure is evidenced on the face of the complaint and incorporated documents."); Sloane v. Mazzuca, No. 04-CV-8266, 2006 WL 3096031, at *4 (S.D.N.Y. Oct. 31, 2006) ("[B]y characterizing non-exhaustion as an affirmative defense, the Second Circuit suggests that the issue of exhaustion is generally not amenable to resolution by way of a motion to dismiss." (internal quotation marks omitted)).
Of note, it is not entirely clear that the above-discussed factors—colloquially referred to as the Hemphill exceptions—remain good law after the Supreme Court's decision in Woodford v. Ngo, 548 U.S. 81 (2006). In Woodford, the Supreme Court held that the PLRA's exhaustion requirement mandates not merely "exhaustion simpliciter" but rather "proper exhaustion," which "demands compliance with an agency's deadlines and other critical procedural rules." 548 U.S. at 83, 88, 91. Although Second Circuit has confirmed that Woodford may indeed have imperiled the Hemphill exceptions' vitality, it has not yet explicitly decided the question. See, e.g., Amador, 655 F.3d at 102 ("Subsequent decisions have questioned the continued viability of this framework following the Supreme Court's decision in Woodford. . . ."); Ruggiero, 467 F.3d at 176 ("We need not determine what effect Woodford has on our case law in this area, however, because [the plaintiff] could not have prevailed even under our pre-Woodford case law."); Rambert v. Mulkins, No. 11-CV-7421, 2014 WL 2440747, at *11 (S.D.N.Y. May 30, 2014) (noting that "the Second Circuit has left unresolved the continuing vitality of the Hemphill exceptions in light of the Supreme Court's ruling in Woodford v. Ngo," but concluding that "Hemphill remains good law").
Nevertheless, when nonexhaustion is not clear from the face of the complaint, a defendant's motion can and should be converted to a motion for summary judgment "limited to the narrow issue of exhaustion and the relatively straightforward questions about [the] plaintiff's efforts to exhaust, whether remedies were available, or whether exhaustion might be, in very limited circumstances, excused." Stevens v. City of N.Y., No. 12-CV-1918, 2012 WL 4948051, at *3 (S.D.N.Y. Oct. 11, 2012) (quoting McCoy, 255 F. Supp. 2d at 251); see also Rambert, 2014 WL 2440747, at *6 (same); Smalls v. Jummonte, No. 08-CV-4367, 2010 WL 3291587, at *3 (S.D.N.Y. Aug. 13, 2010) (same). When doing so in the context of an action brought by a pro se prisoner, the potential consequences of a motion for summary judgment as well as the procedural requirements for responding to one must first be explained, and the Court must also allow Plaintiff the opportunity to take discovery. See Hernández v. Coffey, 582 F.3d 303, 305, 307-08 (2d Cir. 2009) (noting that "[i]n the case of a pro se party . . ., notice is particularly important because the pro se litigant may be unaware of the consequences of his failure to offer evidence bearing on triable issues" and that, "[a]ccordingly, pro se parties must have unequivocal notice of the meaning and consequences of conversion to summary judgment" (alterations, italics, and internal quotation marks omitted)). As a result, in the PLRA exhaustion context, courts typically have insisted upon limited discovery before converting a motion to dismiss for failure to exhaust administrative remedies as required by the PLRA into a motion for summary judgment. See, e.g., Lovick, 2014 WL 3778184, at *5 (observing that "when converting a Motion to Dismiss into a Motion for Summary Judgment under Fed. R. Civ. P. 12(d), notice to the parties is mandated, particularly when a pro se litigant is involved," and accordingly "permit[ting] the parties to engage in limited discovery confined solely to the issue of administrative exhaustion" (italics omitted)); Pratt v. City of N.Y., 929 F.Supp.2d 314, 319 (S.D.N.Y. 2013) (noting that the court could convert motion to dismiss into motion for summary judgment on issue of PLRA exhaustion but observing that, if it were to do so, "the parties would be entitled to an opportunity to take discovery and submit additional relevant evidence, and the parties have not yet been allowed such an opportunity"); Stevens, 2012 WL 4948051, at *6 (noting that it was appropriate before converting the motion to dismiss into a summary judgment motion to permit discovery limited to the issue of administrative exhaustion).
A number of courts have, however, declined to convert the motion where discovery may reveal whether administrative remedies were available to a plaintiff or other special circumstances would excuse his failure to exhaust. See, e.g., McNair v. Rivera, No. 12-CV-6212, 2013 WL 4779033, at *6 (S.D.N.Y. Sept. 6, 2013) (declining to convert motion because "bifurcating discovery, with additional motion practice, creates the potential for complication and delay," and because "the court [did] not anticipate that full fact discovery [would] be sufficiently laborious . . . to counter [the] plaintiffs' interest in a just disposition of their suits"); Shapiro v. Cmty. First Servs., Inc., No. 11-CV-4061, 2013 WL 1122628, at *6 (E.D.N.Y. Mar. 18, 2013) (declining to convert Rule 12(b)(1) motion to dismiss into motion for summary judgment because discovery had not yet occurred and because FRCP 12(d) contained no authority to convert a Rule 12(b)(1) motion into a motion for summary judgment).
Here, Plaintiff's non-exhaustion is not clear from the face of the Amended Complaint, and, indeed, Plaintiff argues in his Opposition to Defendants' Motion that his any non-exhaustion should be excused under one of the Hemphill exceptions. (See Pl.'s Opp'n 16-17 (section entitled "`Special Circumstances' Justifying Failure To Exhaust").)
Therefore, the Court will allow conversion of the instant Motion to one for summary judgment but will allow for limited discovery on the issue of administrative exhaustion. "Plaintiff may, for example, respond with evidence of his efforts to exhaust, and/or evidence that (a) administrative remedies were unavailable, (b) he was inhibited from exhausting available remedies by one or more Defendant's actions, or (c) special circumstances exist that justify his failure to comply with the exhaustion requirements." Smalls, 2010 WL 3291587, at *3 (citing Hemphill, 380 F.3d at 686; McCoy, 255 F. Supp. 2d at 251).
Defendants also move to dismiss the Amended Complaint insofar as it seeks relief against Whinnery, Dachisen, Diehl, Hickman, and Susney, and to the extent that it seeks to hold Recktenwald liable for anything beyond her denial of Plaintiff's grievance relating to Conklin's allegedly false incident report. (See Defs.' Mem. 17-20.) The Court agrees.
"A plaintiff bringing a claim under Bivens must allege that he has been deprived of a constitutional right by a federal agent acting under color of federal authority." Thomas v. Ashcroft, 470 F.3d 491, 496 (2d Cir. 2006) (citing Bivens, 403 U.S. at 389). "Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 556 U.S. at 676; see also Thomas, 470 F.3d at 496 ("Because the doctrine of respondeat superior does not apply in Bivens actions, a plaintiff must allege that the individual defendant was personally involved in the constitutional violation." (some italics omitted)); see also J.S. v. T'Kach, No. 11-CV-103, 2014 WL 4100589, at *8 (S.D.N.Y. Aug. 20, 2014) (same).
"Before Iqbal, the most important case in this Circuit regarding the evidence required to establish the personal involvement of a supervisory official was Colon v. Coughlin, 58 F.3d 865 (2d Cir. 1995)." Haynes v. Mattingly, No. 06-CV-1383, 2014 WL 4792241, at *7 (S.D.N.Y. Sept. 24, 2014), aff'd, (2d Cir. Oct. 27, 2015); see also Correa v. Hastings, No. 13-CV-5862, 2015 WL 6681186, at *4 (S.D.N.Y. Nov. 2, 2015) (identifying Colon as establishing the test for finding personal involvement in Bivens claim where showing of intent is not required).
Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013) (italics omitted) (quoting Colon, 58 F.3d at 873); see also Raspardo v. Carlone, 770 F.3d 97, 116 (2d Cir. 2014) (quoting Colon, 58 F.3d at 873) (same). Since then, the Second Circuit has recognized that the "[Iqbal] decision . . . may have heightened the requirements for showing a supervisor's personal involvement with respect to certain constitutional violations," Grullon, 720 F.3d at 139; however, "[it] has thus far declined to resolve the question." Golodner v. City of New London, No. 14-CV-173, 2015 WL 1471770, at *7 (D. Conn. Mar. 31, 2015); see also Fortunato, 2015 WL 5813376, at *6 (noting that "the continuing validity of the Colon factors has been called into question by the Supreme Court's ruling in Iqbal").
Before delving into Plaintiff's specific allegations against each of these Defendants and whether he sufficiently alleges personal involvement, it bears noting that Plaintiff alleges that "Recktenwald, Whinnery, Dachisen, Susney, Diehl, and Hickman[] rec[ei]ved Plaintiff['s] grievances/complaints about . . . Conklin['s] misconduct and fals[e] fraudulent incident report . . . and conspired to cover it up until Plaintiff served them their copies of his restraining order/motion on Feb. 25.14." (Pl.'s Opp'n 6 (citing id. Ex. O (Letter from Pl. to "Special Investigation Attorney General" (Feb. 24, 2014)), id. Ex. P (E.D. Wis. Mot.).) This broad assertion does not create personal involvement.
To state a legal truism, just because a litigant posits the existence of a conspiracy does not make it plausible. Indeed, the Supreme Court has made clear, "conclusory . . . allegations" are "disentitle[d] . . . to the presumption of truth." Iqbal, 556 U.S. 681.
With respect to Whinnery, Plaintiff essentially alleges that (1) his BP-8 was submitted to Whinnery, (see Am. Compl. ¶ 29; see also Pl.'s Opp'n ¶ 2; Pl.'s Opp'n Ex. B (BP-8 Form)), (2) that Whinnery responded to a grievance he brought relating to Conklin's alleged tampering with his mail, (see Pl.'s Opp'n ¶ 6; Pl.'s Opp'n Ex. F (Letter from M. Whinnery to Plaintiff (Sept. 30, 2013))), and (3) that "the Supervisory Officials to [sic] actions on Feb. 25, 2014 at or around 9:a.m. or 9:30 a.m., ordered the compound officer to enter into the educational department and called Plaintiff to the front entrance, to[ ]where Plaintiff was escorted to the Lt.'s/Captains' office where Captain Whinnery stated, quote `this is for my protection. [W]e want to make sure you[']r[e] not hurt,'" (Pl.'s Opp'n 6-7).
The first of these allegations fails to establish personal involvement because mere receipt of a complaint or grievance from an inmate is insufficient to establish personal involvement, even under the Colon regime. See, e.g., Whitenack v. Armor Med., No. 13-CV-2071, 2014 WL 5502300, at *6 (E.D.N.Y. Oct. 30, 2014) ("Since [the] plaintiff has pled no facts, beyond [the sheriff's] presumed receipt of grievances and his position atop the correctional center . . ., [the plaintiff] has failed to plausibly plead [the sheriff's] personal involvement in any infringement of [the plaintiff's] constitutional rights." (alterations and internal quotation marks omitted)); Rivera v. Bloomberg, Nos. 11-CV-629, 11-CV-4325, 2012 WL 3655830, at *10 (S.D.N.Y. Aug. 27, 2012) (concluding that the "[p]laintiffs [did] not ple[a]d facts sufficient to demonstrate that [one defendant] was personally involved in the alleged violation of their constitutional rights," despite allegation that the "[p]laintiffs [had] informed [her] of their claims"); Johnson v. Goord, No. 01-CV-9587, 2004 WL 2199500, at *7 (S.D.N.Y. Sept. 29, 2004) ("[T]he receipt of letters or grievances or complaints from inmates is insufficient to impute personal involvement."); Rivera v. Goord, 119 F.Supp.2d 327, 344 (S.D.N.Y. 2000) (dismissing complaint against five defendants as to whom the plaintiff failed to allege any facts demonstrating that personal involvement in or knowledge of the alleged constitutional violations, where the plaintiff instead "merely assert[ed] that he wrote to these defendants complaining about the conduct of various [other] [d]efendants and that his complaints were ignored").
The second of these allegations fails because it relates to conduct that actually predates the conduct at issue in this case. (Compare Pl.'s Opp'n Ex. F (Letter from M. Whinnery to Plaintiff (Sept. 30, 2013)) with, e.g., Am. Compl. ¶ 1 (indicating that the day upon which Conklin first complained about smelling cigarette smoke was "[o]n or about October into November of 2013").) While a court "evaluating the legal sufficiency of a pro se plaintiff's claims . . . may rely on the plaintiff's opposition papers," Vlad-Berindan v. MTA N.Y. City Transit, No. 14-CV-675, 2014 WL 6982929, at *6 (S.D.N.Y. Dec. 10, 2014) (italics omitted), a plaintiff may not assert new claims through those opposition papers, see Weerahandi v. Am. Statistical Ass'n, No. 14-CV-7688, 2015 WL 5821634, at *8 (S.D.N.Y. Sept. 30, 2015) (noting that the plaintiff raised new claims in his papers opposing the motion to dismiss but "declin[ing] to address them for the purposes of [the] [d]efendant's motion to dismiss" "[b]ecause these claims were not raised in the complaint"); Bernstein v. City of N.Y., 06-CV-895, 2007 WL 1573910, at *10 (S.D.N.Y. May 24, 2007) ("New claims not specifically asserted in the complaint may not be considered by courts when deciding a motion to dismiss." (alterations and internal quotation marks omitted)). Because Whinnery's handling of a mail dispute several months before the action underlying Plaintiff's Bivens claim as described in the Amended Complaint alleges not personal involvement but, at best, a new claim, the Court need not address it. See Weerahandi, 2015 WL 5821634, at *8.
Similar logic also dooms Plaintiff's allegations concerning Whinnery's statement to Plaintiff in the office. (See Pl.'s Opp'n 6-7.) See also Weerahandi, 2015 WL 5821634, at *8 (declining to address new claims in the plaintiff's opposition to the motion to dismiss "[b]ecause these claims were not raised in the complaint"). Even if this statement did not predate the events at issue in this case, it does not fit into any of the existing claims currently included in the Amended Complaint. Additionally, one struggles to understand what prong of the Colon analysis this statement could possibly implicate. It does not include (1) direct participation in a constitutional violation, (2) a failure to remedy a wrong, (3) creation or perpetuation of a policy or custom under which unconstitutional practices occurred, (4) gross negligence in supervising subordinates, or (5) failure to act upon information. See Colon, 58 F.3d at 873.
Therefore, Plaintiff fails to adequately allege Whinnery's personal involvement in any constitutional fouls allegedly suffered by Plaintiff.
Plaintiff similarly fails to adequately plead Diehl's personal involvement. As a refresher, Plaintiff alleges that he met with Diehl, who told Plaintiff that he had to wait for the "DHO hearing" before he could file a grievance against Conklin, and Plaintiff said that this was "not [a] DHO matter, but an administrative matte[]r dealing with criminal conduct and acts by a[] United States Government employee in official duties." (Am. Compl. ¶ 30.) Plaintiff also alleges that, in early January, 2014, he received a response from Diehl confirming receipt of Plaintiff's BP-8 and telling Plaintiff, among other things, that it was the policy of BOP and the facility "to treat all inmates in a fair and impartial manner," but that "[d]ue to the privacy interest of the staff member which [Plaintiff] name[d]," the findings or result of the review of the matter could not be disclosed to Plaintiff. (Id. ¶ 31; Pl.'s Opp'n Ex. C (Jan. 3, 2014 response); see also Pl.'s Opp'n ¶ 3.) At best, these assertions can be taken as an allegation that Diehl received Plaintiff's grievance, which, as stated, is insufficient by itself to establish personal involvement. See, e.g., Acevedo v. Fischer, No. 12-CV-6866, 2014 WL 5015470, at *16 (S.D.N.Y. Sept. 29, 2014), appeal dismissed (Jan. 8, 2015) ("[R]eceipt of letters or grievances is insufficient to impute personal involvement. Were it otherwise, virtually every prison inmate who sues for constitutional torts by prison officials could name the supervisor as a defendant since the plaintiff must pursue his prison remedies, and invariably the plaintiff's grievance will have been passed upon by the supervisor." (internal quotation marks omitted)).
Plaintiff also does not allege enough with respect to Dachisen. In his submissions, Plaintiff makes only two allegations that unambiguously refer to Dachisen.
Plaintiff likewise fails to satisfactorily allege Hickman's personal involvement. Plaintiff alleges that, a few weeks after submitting his BP-9, Hickman called him to the lieutenant's office to address his BP-9 grievance form against Conklin. (Am. Compl. ¶ 34; see also Pl.'s Opp'n ¶ 4; Pl.'s Opp'n Ex. D (BP-9 Form and Response).) Plaintiff allegedly told the "lieutenant" that, if Conklin were to continue to work in the unit, Plaintiff would wish to proceed and exhaust his administrative remedy because it was clear to him that "this F.C.I. Otisville administration has no intentions o[f] ever remed[y]ing this situation of the officer submission of fraudulent and misleading incident reports." (Am. Compl. ¶ 34.)
Here, Plaintiff's allegations are that Hickman helped Plaintiff move his grievance process along and waited for Plaintiff to fill out an affidavit. As is hopefully clear by now, the first founders because mere receipt of a grievance—if that is even what is alleged here—does not amount to personal involvement. See Acevedo, 2014 WL 5015470, at *16; Vega v. Artus, 610 F.Supp.2d 185, 199 (N.D.N.Y. 2009) (observing that the facility superintendent's act of "referring [the plaintiff's] letters to staff for investigation [was] not sufficient to establish [his] personal involvement"). The second fails because it is not clear how waiting for Plaintiff to fill out an affidavit could amount to personal involvement in depriving him of his constitutional rights. Indeed, if receiving a grievance detailing the facts at issue in this case cannot create personal involvement, simply alleging Hickman's presence while Plaintiff filled out an affidavit falls shorter still.
Plaintiff makes a number of allegations about Recktenwald; however, they can be distilled into two categories: First, Plaintiff alleges that, on February 12, 2014, she "responded to Plaintiff's BP-9 stating that `On December 10, 2013, the UDC found you committed [Code] 312, [I]nsolence [T]owards a [S]taff Member and sa[n]ctioned, accordingly. Additionally, you also admitted that you made the statement in reference to the staff member,'" (Am. Compl. ¶ 41; see also Pl.'s Opp'n ¶ 5; Pl.'s Opp'n Ex. E.), a statement which Conklin read as giving him "the green light to do as he pleased," (Id. ¶ 42). Second, Plaintiff also alleges that he submitted a number of complaints to Recktenwald, the details of which need not be recited here, or that she was otherwise on notice. (See Am. Compl. ¶¶ 52-54, 57; Pl.'s Opp'n ¶¶ 7, 8, 13; Pl.'s Opp'n 6; Pl.'s Opp'n Ex. G (Letter from Pl. to Warden (Mar. 4, 2014); Pl.'s Opp'n Ex. H (Letter from Pl. to Warden Recktenwald (Mar. 12, 2014)); Pl.'s Opp'n Ex. M (Letter from Pl. to Warden (Mar. 5, 2014)).) Defendants, apparently, do not seek dismissal of Plaintiff's claims against Recktenwald on the basis of personal involvement with respect to the first category. (See Defs.' Mem. 19 ("Only Plaintiff's exhausted allegations regarding Recktenwald's denial of Plaintiff's BP-9 Form could be arguably sufficient to withstand a motion to dismiss, because the allegation that Recktenwald or any other defendant was on notice of Plaintiff's complaints fails to state a claim.").) With respect to the latter, suffice it to say that "the receipt of letters or grievances or complaints from inmates is insufficient to impute personal involvement," Johnson, 2004 WL 2199500, at *7, and generalized allegations of knowledge are too conclusory, see Iqbal, 556 U.S. at 680-81. Therefore, the Court grants the Motion to dismiss Recktenwald with regard to this second category.
Finally, Plaintiff's claim also fails with respect to Susney. Along with Hickman, Susney allegedly "waited for Plaintiff to state an affidavit stating the reason why Plaintiff filed his motion" before he was processed into the SHU. (Am. Compl. ¶ 46.) Additionally, Susney "stated to Plaintiff that after he signed the affidavit Plaintiff would receive a[] copy of this document," but failed to subsequently provide one. (Id.; see also id. ¶ 53 (indicating that he wrote to Recktenwald that he signed an affidavit on February 25, 2014 with Susney but had not received a copy).) Susney also allegedly "met . . . Plaintiff in R & D" before Plaintiff's transfer from F.C.I. Otisville and "stated `because it involves staff, Plaintiff can[]not receive a copy of his own affidavit.'" (Id. ¶ 46.) Plaintiff also alleges that, on March 6, 2014 and on March 9, 2014, he requested to speak with Susney, knowing he was on duty at the latter time but that Susney did not show up to speak with Plaintiff. (See Pl.'s Opp'n ¶ 9-10; Pl.'s Opp'n Ex. I (Letter from Pl. to SHU lieutenant (Mar. 6, 2014)), Pl.'s Opp'n Ex. J (Letter from Pl. (March 9, 2014)).) The Court is frankly unsure how Plaintiff's allegations about Susney could be construed to allege involvement in the purported constitutional infractions at issue in this case. While it is obligatory to liberally construe Plaintiff's submissions, see Triestman, 470 F.3d at 474-75, there exists a line between liberal construction and gratuitous revision. Because, ultimately, it is Plaintiff's burden to plead personal involvement, cf. Ramrattan v. Fischer, No. 13-CV-6890, 2015 WL 3604242, at *10 (S.D.N.Y. June 9, 2015) ("Plaintiff has not met the burden of pleading personal involvement for any of the 12 individual [d]efendants."), and because Plaintiff has not done so, his claim against Susney must also be dismissed.
Defendants further argue that "Plaintiff's Bivens claims against Whinnery, Dachisen, Hickman, Susney, Diehl, and Recktenwald fail for the additional reason that these Defendants are entitled to a qualified immunity from suit on such claims." (Defs.' Mem. 19.) Plaintiff's claims against Whinnery, Dachisen, Hickman, Susney, and Diehl have, however, already been dismissed for failure to allege personal involvement. There is thus no need to address the qualified immunity argument as to those Defendants. See Kelsey v. Cty. of Schoharie, 567 F.3d 54, 62 (2d Cir. 2009) ("When the facts, viewed in light most favorable to the plaintiff, do not demonstrate that an officer's conduct violated a constitutional right, the court need not further pursue the qualified immunity inquiry."); see also Dawson v. City of N.Y., No. 13-CV-5956, 2014; WL 5020595, at *2 (S.D.N.Y. Oct. 8, 2014) (same); Cooper v. Marrero, No. 11-CV-9260, 2013 WL 2529723, at *5 (S.D.N.Y. June 11, 2013) (same). Because Defendants did not move to dismiss the claim for denying Plaintiff's grievance on appeal asserted against Recktenwald on the grounds of insufficient personal involvement, however, the Court must consider whether it may be dismissed pursuant to the doctrine of qualified immunity.
"The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted). Qualified immunity "`gives government officials breathing room to make reasonable but mistaken judgments' by `protect[ing] all but the plainly incompetent or those who knowingly violate the law.'" City & Cty. of S.F. v. Sheehan, 135 S.Ct. 1765, 1774 (2015) (alteration in original) (quoting Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2085 (2011)). Because qualified immunity is "an affirmative defense [that] . . . reflects an immunity from suit rather than a mere defense to liability[,] . . . it is appropriate to decide the issue of qualified immunity, when raised, at an early stage of the litigation, such as when deciding a pre-answer motion to dismiss." Betts v. Shearman, No. 12-CV-3195, 2013 WL 311124, at *4 (S.D.N.Y. Jan. 24, 2013) (italics and internal quotation marks omitted), aff'd, 751 F.3d 78 (2d Cir. 2014).
In determining whether a right is clearly established, "th[e] inquiry turns on the objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken." Pearson, 555 U.S. at 244 (internal quotation marks omitted). "In the Second Circuit, `a right is clearly established if (1) the law is defined with reasonable clarity, (2) the Supreme Court or the Second Circuit has recognized the right, and (3) a reasonable defendant would have understood from the existing law that his conduct was unlawful.'" Schubert v. City of Rye, 775 F.Supp.2d 689, 702 (S.D.N.Y. 2011) (quoting Luna v. Pico, 356 F.3d 481, 490 (2d Cir. 2004)).
Rectkenwald is entitled to qualified immunity. As she accurately recounted when denying Plaintiff's BP-9, Plaintiff alleged that "staff made and submitted fraudulent, false[,] and misleading statements personally targeting [Plaintiff]." (Pl.'s Opp'n Ex. E (BP-9 Response); see also id. Ex. D (BP-9 Form and Response).) Moreover, Recktenwald also noted that "[a] review of the matter" was conducted and concluded that "[Plaintiff] admitted that [he] made the statement [at issue in his disciplinary proceedings] in reference to the staff member." (Pl.'s Opp'n Ex. E (BP-9 Response).) Recktenwald additionally informed Plaintiff of his right to appeal her decision to the Regional Director for the Northeast Region of the Federal Bureau of Prisons. (Id.) This is enough to safely conclude, at the absolute minimum, "a reasonable [warden] would not have understood from the existing law that her conduct was unlawful." Schubert, 775 F. Supp. 2d at 702; see also Green v. Bauvi, 46 F.3d 189, 195 (2d Cir. 1995) ("[A]dherence to [state] regulations may be pertinent in considering whether a reasonable official would have known his [or her] actions violated the Constitution."); Selah v. Fischer, No. 09-CV-1363, 2015 WL 1893340, at *13 (N.D.N.Y. Apr. 15, 2015) (dismissing complaint against correctional facility superintendent on qualified immunity grounds where "he denied plaintiff's appeals in connection with the grievances based on his belief that plaintiff was seeking relief that he was not authorized to provide, and he provided plaintiff with instructions regarding how to seek the relief requested" and followed all relevant New York State Department of Corrections and Community Supervision policies).
Defendants also move to dismiss Plaintiff's § 1986 claim for neglect to prevent conspiracy on the grounds that he has not alleged the existence of a conspiracy sufficient under § 1985. (Defs.' Mem. 21-22.) Defendants' point is a fair one, and, accordingly, Plaintiff's § 1986 claim is dismissed.
"[A] § 1986 claim must be predicated upon a valid § 1985 claim." Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1088 (2d Cir. 1993); see also Karam v. Cty. of Rensselaer, No. 13-CV-1018, 2016 WL 51252, at *21 (N.D.N.Y. Jan. 4, 2016) (same); Poulos v. City of N.Y., No. 14-CV-3023, 2015 WL 5707496, at *8 (S.D.N.Y. Sept. 29, 2015) (same); Townsend v. New York, No. 14-CV-6079, 2015 WL 4692604, at *7 (E.D.N.Y. Aug. 6, 2015) (same). The Second Circuit has made clear that the four elements of a § 1985(3) claim are:
Mian, 7 F.3d at 1087 (citing United Bhd. of Carpenters, Local 610 v. Scott, 463 U.S. 825, 828-29 (1983)); see also Townsend, 2015 WL 4692604, at *7 (same); Robinson v. Bratton, No. 14-CV-2642, 2015 WL 3496460, at *6 (E.D.N.Y. July 8, 2014) (same).
Next, Plaintiff brings a claim under the Fifth and Sixth Amendments for a "violation of [his right of] access to the court[s]," (Am. Comp. ¶ 83), which Defendants move to dismiss, (Defs.' Mem. 22-23).
First, Plaintiff cannot make out a Sixth Amendment claim because his Sixth Amendment rights are not implicated by the facts alleged. "The Sixth Amendment provides that `[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.'" United States v. Mills, 412 F.3d 325, 328 (2d Cir. 2005) (second alteration in original) (quoting U.S. Const. amend. VI). However, the words "prosecutions" and "accused" are not mere surplusage, and "the Sixth Amendment only guarantees the right to counsel after formal proceedings have begun against a suspect." Fountain v. City of White Plains, No. 13-CV-7016, 2015 WL 5602869, at *6 (S.D.N.Y. Sept. 23, 2015); see also Mills, 412 F.3d at 328 ("The Sixth Amendment right to counsel does not attach until a prosecution is commenced . . . ."); Smart v. City of N.Y., No. 08-CV-2203, 2009 WL 862281, at *8 (S.D.N.Y. Apr. 1, 2009) ("[T]he Sixth Amendment right to counsel does not attach until the Government commits itself to prosecution by initiating adversary judicial proceedings." (citing Moran v. Burbine, 475 U.S. 412, 431 (1986)); cf. Benjamin v. Fraser, 264 F.3d 175, 186 (2d Cir. 2001) (explaining that "[t]he reason pretrial detainees need access to the courts and counsel is not to present claims to the courts, but to defend against the charges brought against them"). However, here, Plaintiff has made no allegations that would suggest his desire to speak with his attorney had anything to do with defending criminal proceedings. (See Am. Comp. ¶ 83.) To the contrary, Plaintiff alleges that he "rec[ei]ved a correspondent letter from attorney Bonnie M. Mangold regard[ing] civil action settlement conditions." (Id. ¶ 65 (emphasis added); see also id. ¶ 83 (referring to "attorney Ms. Bonnie Mangold from the law office of Reed[ ]Smith" in a paragraph alleging that "Otisvill[e] staff and administration ignored and refused the request for legal phone call to attorney").) "[T]he Sixth Amendment does not govern civil cases." Turner v. Rogers, 564 U.S. 431, 131 S.Ct. 2507, 2516 (2011). Consequently, his Sixth Amendment right-to-counsel claim must be dismissed.
Plaintiff's Fifth Amendment right-of-access-to-the-courts claim is also infirm, albeit for different reasons.
Plaintiff's claim relating to his access to the courts suffers from a second deficiency, however, which is that he alleges no injury from it. When asserting a claim for deprivation of the right to access the courts, a plaintiff must allege facts sufficient to show that he suffered an actual injury. See Lewis v. Casey, 518 U.S. 343, 349 (1996); see also Groenow, 2014 WL 941276, at *7 ("[A] plaintiff must show that deprivation of his right to access the courts unfairly prejudiced his case." (citing Lewis, 518 U.S. at 353)); Quezada v. Roy, No. 14-CV-4056, 2015 WL 5970355, at *12 (S.D.N.Y. Oct. 13, 2015) ("In order to establish a constitutional violation based on a denial of access to the courts, a plaintiff must show that the defendant's conduct was deliberate and malicious, and that the defendant's actions resulted in an actual injury to the plaintiff." (internal quotation marks omitted)). To do so, a plaintiff must "demonstrate that the defendant's conduct frustrated the plaintiff's efforts to pursue a nonfrivolous claim." Quezada, 2015 WL 5970355, at *12 (internal quotation marks omitted); see also Monsky v. Moraghan, 127 F.3d 243, 247 (2d Cir. 1997) ("In order to establish a violation of a right of access to courts, a plaintiff must demonstrate that a defendant caused actual injury, i.e., took or was responsible for actions that hindered a plaintiff's efforts to pursue a legal claim." (alterations and internal quotation marks omitted)); Williams v. Superintendent of Brooklyn Det. Ctr., No. 15-CV-6085, 2015 WL 7281646, at *2 (E.D.N.Y. Nov. 17, 2015) ("[T]he plaintiff must show that a nonfrivolous legal claim had been frustrated or was being impeded due to the actions of prison officials." (alterations and internal quotation marks omitted)). "Mere delay in being able to work on one's legal action or communicate with the courts does not rise to the level of a constitutional violation." Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003) (internal quotation marks omitted); see also Smith v. City of N.Y., No. 14-CV-443, 2015 WL 1433321, at *3 (S.D.N.Y. Mar. 30, 2015) (same).
Although it is not entirely clear, Plaintiff seems to argue that he suffered prejudice in that the "attorney contact stated that if there was any questions in the proceedings, Plaintiff was to contact them." (Am. Compl. ¶ 83.) Because forcing Plaintiff to correspond with attorneys by means other than a phone call seems to eke out, at best, a claim for "mere delay," Davis, 320 F.3d at 352, Plaintiff's allegations do not state a constitutional injury. Indeed, nothing else in his submissions indicates that that Plaintiff has suffered the type of injury needed to state an accessto-courts claim. See Lewis, 518 U.S. at 349, 353. Therefore, Plaintiff's access-to-the-courts claim is dismissed.
Next, Defendants move to dismiss Plaintiff's claims for retaliation, arguing that some of his retaliation claims are unexhausted and the others relating to Conklin—contained in ¶¶ 5-6, 10-14, and 24-26—fail to state a claim. (Defs.' Mem. 23-25.) Because the Court cannot reach the former question until after the Parties have had the chance to engage in limited discovery concerning the exhaustion issue for the reasons discussed earlier, the Court takes up the question of whether Plaintiff has stated a claim for the false incident report grievance.
"To state a First Amendment retaliation claim . . ., a plaintiff must allege `(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.'" Dolan, 794 F.3d at 294 (quoting Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009)); see also Quezada, 2015 WL 5970355, at *19 (same); Ramrattan, 2015 WL 3604242, at *12 (same).
Regardless of whether Plaintiff has suffered an adverse action, his claim fails because he has not pled that he engaged in protected activity causally connected to at least potentially adverse action. By the Court's liberal reading, Plaintiff has alleged several actions that arguably could count as protected activity:
Similarly, Plaintiff alleges the following potentially adverse actions:
At the outset, it merits clarifying that not every statement an inmate makes in prison is afforded First Amendment protection. Indeed, "[t]he Supreme Court has held that `[i]n a prison context, an inmate does not retain those First Amendment rights that are inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." Pilgrim v. Luther, 571 F.3d 201, 205 (2d Cir. 2009) (second alteration in original) (quoting Jones v. N.C. Prisoners' Labor Union, Inc., 433 U.S. 119, 129 (1977)); see also Williams v. Walter Ford, No. 14-CV-1181, 2015 WL 8490910, at *5 (D. Conn. Dec. 10, 2015) (same).
Nevertheless, there is authority in the Second Circuit for the proposition that verbal complaints can be protected action for purposes of a First Amendment retaliation claim. See, e.g., Tirado v. Shutt, No. 13-CV-2848, 2015 WL 774982, at *9 (S.D.N.Y. Feb. 23, 2015) ("[C]ase law in this Circuit indicates that a prisoner's oral complaints to a correction officer may serve as the basis for a First Amendment retaliation claim."), adopted in part by 2015 WL 4476027 (S.D.N.Y. July 22, 2015); Lunney v. Brureton, No. 04-CV-2438, 2007 WL 1544629, at *24 n.10 (S.D.N.Y. May 29, 2007) ("The [c]ourt notes that some case law indicates that a prisoner's oral complaints to prison guards may provide the basis for a retaliation claim under § 1983."); Smith v. Woods, No. 03-CV-480, 2006 WL 1133247, at *10 (N.D.N.Y. Apr. 24, 2006) ("I acknowledge that the First Amendment protects, not only the filing of written grievances and complaints, but, under some circumstances, the making of oral complaints to corrections officers."), aff'd, 219 F. App'x 110 (2d Cir. 2007); Gill v. Riddick, No. 03-CV-1456, 2005 WL 755745, at *10 (N.D.N.Y. Mar. 31, 2005) (finding the "filing of the grievance agenda and making oral complaints" to be "clearly protected"). But see Allah-Kasiem v. Sidorowicz, No. 09-CV-9665, 2012 WL 2912930, at *1, *8-9 (S.D.N.Y. July 17, 2012) (rejecting plaintiff's argument that he filed an "`oral sexual harassment complaint' or grievance" when he made an "extremely graphic" comment to a prison guard, reasoning that, "[h]aving chosen not to use the grievance process . . ., [the plaintiff] [could not] claim that his comments to [the guard] [were] entitled to the same protection that adheres to properly filed grievances").
However, courts in the Second Circuit and others have distinguished between unambiguously protected activity and situations where an inmate verbally confronts a prison official. See, e.g., Rodriguez v. Phillips, 66 F.3d 470, 478 (2d Cir. 1995) (finding in the qualified immunity context "no clearly established First Amendment right to approach and speak to" an officer who allegedly retaliated against the plaintiff inmate where the plaintiff "`approached [the officer] and . . . told [him] that according to institutional policy that was wrong what he was doing'" after seeing that the officer "`was trying to implement something on another inmate'" who "`couldn't defend himself'"); Young v. Ice, No. 14-CV-1475, 2015 WL 471675, at *3 (N.D. Ohio Feb. 4, 2015) ("While prisoners have a clear right protected by the First Amendment to file formal grievances against prison officials, arguing with corrections officers, or being insolent or disrespectful toward corrections officers is not conduct protected by the First Amendment." (citation omitted)); Martin v. Hurley, No. 14-CV-66, 2014 WL 7157336, at *2 (E.D. Mo. Dec. 15, 2014) ("Prisoners have no constitutionally protected right to confront staff and discuss issues with them, particularly when ordered not to do so."); Riddick v. Arnone, No. 11-CV-631, 2012 WL 2716355, at *7 (D. Conn. July 9, 2012) (finding the inmate plaintiff's statement that a correctional facility employee could not issue a disciplinary report "more like a schoolyard taunt than an attempt to petition the government for redress of grievances," and, therefore, unprotected); Rossi v. Goord, No. 00-CV-1521, 2006 WL 2811505, at *10 n.16 (N.D.N.Y. Sept. 28, 2006) ("The questioning by an inmate of a lawful order given by a corrections officer, however, does not constitute protected speech deserving of First Amendment protection." (citing Rodriguez, 66 F.3d at 478-79), reconsideration granted in part on other grounds, 2007 WL 952051 (N.D.N.Y. Mar. 29, 2007); Garrido v. Coughlin, 716 F.Supp. 98, 101 (S.D.N.Y. 1989) ("While there is a claim of retaliation here . . ., it was not for exercise of [the plaintiff's] First Amendment rights; rather, the alleged retaliation arose out of a verbal confrontation."). But cf. Lugo v. Van Orden, No. 07-CV-879, 2008 WL 2884925, at *3 n.4 (N.D.N.Y. July 23, 2008) ("A simple discussion with a corrections officer would not be protected speech unless that discussion was in the form of a complaint or concern about the officer or some policy involved.").
The Court does not underestimate the importance—both as a practical and a constitutional matter—of preserving inmates' ability to bring grievances. See, e.g., Davis, 320 F.3d at 352-53 ("[T]he filing of prison grievances is a constitutionally protected activity . . . ."). Nevertheless, there is a distinction to be made between the inmate who stridently challenges a prison official's authority in the moment and his peer who instead brings his complaints through the designated channels, such as the prison's grievance procedure, where feasible. Cf. Rodriguez, 66 F.3d at 478. For that reason, Plaintiff's comments fall on the wrong side of the line. Indeed, Plaintiff's fall — attempt to "address[] th[e] issue" of Conklin's authority to restrict television use at 10 pm should the smell of cigarette smoke continue unabated, (see Am. Compl. ¶¶ 1-4), amounted to little if anything more than an effort to "confront [a member of] staff and discuss [an] issue[] with him," Martin, 2014 WL 7157336, at *2, which, in prison, simply does not enjoy First Amendment protection, see Garrido, 716 F. Supp. at 101 (distinguishing between "[an] exercise of [the plaintiff's] First Amendment rights" and "a verbal confrontation"). Likewise, no greater protection is afforded to Plaintiff's December 6, 2013 demand to know why Conklin wanted his ID coupled with the comment that Conklin was "not [Plaintiff's] unit officer and [that] [Plaintiff] should know why [his] ID [was] being requested," (see Am. Compl. ¶¶ 8, 12), or Plaintiff's remark "that [Conklin] has [Plaintiff] fucked up because [Plaintiff] do[es]n[']t associate with anyone in D-A like that," (id. ¶ 14), as each plainly falls somewhere on the spectrum between "schoolyard taunt," Riddick, 2012 WL 2716355, at *7, and "[t]he questioning by an inmate of a lawful order given by a corrections officer," Rossi, 2006 WL 2811505, at *10 n.16. Accordingly, Plaintiff's complaints to Conklin or about him to the other inmates were not protected activity, and his retaliation claim with respect to those incidents collapses as a consequence. (See Am. Compl. ¶¶ 1-4, 12, 14, 24-26.)
Plaintiff's decision to speak with another officer and Ferdula about his run-ins with Conklin, (id. ¶¶ 16-17), and his subsequent conversation with Heli, (id. ¶ 19), may, conceptually, be another matter; however, they also fail. As noted, a retaliation claim requires a "causal connection" between the protected action and the adverse action. Dolan, 794 F.3d at 294. It is true that "[a] plaintiff can establish a causal connection that suggests retaliation by showing that protected activity was close in time to the adverse action." Espinal, 558 F.3d at 129; see also Colon, 58 F.3d at 872 ("Temporal proximity between an inmate's lawsuit and disciplinary action may serve as circumstantial evidence of retaliation."); Quezada, 2015 WL 5970355, at *20 (same). However, it is also true that, where the allegedly adverse action occurs before the allegedly protected activity, a court may appropriately decline to find a causal connection. See Winfield v. Bishop, No. 09-CV-1055, 2012 WL 1657190, at *4 (N.D.N.Y. May 10, 2012) ("[T]he [a]mended [c]omplaint states that other adverse action preceded the protected conduct. . . . Given these facts and the particular care with which courts must scrutinize retaliation claims, the [c]ourt finds that [the] [p]laintiff has failed to state a retaliation claim against [one of the] [d]efendant[s]."); Rose v. Goldman, No. 02-CV-5370, 2009 WL 4891810, at *14 (E.D.N.Y. Dec. 9, 2009) (rejecting the plaintiff's assertions of causal connection upon motion for summary judgment, and noting that the defendant took the allegedly adverse action before the plaintiff engaged in any alleged protected activity), adopted by 2011 WL 1130214 (E.D.N.Y. Mar. 24, 2011); cf. Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001) (noting in employment context that, "[w]here timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise"). Here, Plaintiff alleges that Conklin's report—that is, the adverse action for his retaliation claim—preceded those conversations. (See id. ¶¶ 16-21 (describing, inter alia, how, Plaintiff spoke with another officer about Conklin, and "then" Ferdula called Plaintiff to her office where they had a conversation, after which "Ferdula . . . stated to Plaintiff that he was being called to the Lt. office," where he "listened to the Lt. Heli state what . . . Conklin wrote and filed in his incident report").) Even if Plaintiff's complaints to this officer and Ferdula were protected activities—which the Court does not hold at this time—there is simply no causal connection between it and the allegedly adverse activities.
Since submission of Defendants' Motion to Dismiss, Plaintiff also submitted an August 4, 2015 "Complaint Supplemental `[E]mergency Ex Parte' Motion To Preserve Evidence." In that Motion, Plaintiff requests certain video footage and sign-in logs. (See Compl. Suppl. `[E]mergency Ex Parte' Mot. To Preserve Evidence ("Pl.'s Evid. Mot.") 2-3 (Dkt. No. 32).)
In response to Plaintiff's Motion, Defendants submitted a declaration from Wayne D. McBride ("McBride"), a technician in the Special Investigative Service Department at Otisville. (See Decl. of Wayne D. McBride ("McBride Decl.") ¶ 1 (Dkt. No. 35).) According to McBride, Otisville has 208 security cameras running nonstop, which capture video but not audio, and footage from which is stored for a maximum of 21 days, unless staff overrides that automatic purge in order to preserve specific recordings. (Id. ¶¶ 3-5.) McBride indicated that the requested video footage had already been deleted by the date of Plaintiff's Motion. (See id. ¶ 8.) Additionally, McBride states that Plaintiff had previously requested some of the same video footage in connection with his January 7, 2014 BP-9 but that it had already been deleted by that time. (Id.)
In his Motion, Plaintiff did not appear to request any sanctions; however, anticipating that he might, Defendants argued in their Memorandum of Law that, should he do so, sanctions would be inappropriate and that Defendants had not spoliated evidence. (See, e.g., Defs.' Mem. of Law in Response to Pl.'s Mot. To Preserve Evid. ("Defs.' Evid. Opp'n.") 7 (Dkt. No. 34).) Moreover, Defendants argue that Plaintiff incorrectly seeks injunctive relief when he should seek discovery and that his request is, in any event, mooted as the relevant logs were being produced in response to the Motion. (Id. at 3-5.)
Plaintiff's request for an injunction is meritless. In order to obtain a preliminary injunction, a movant must ordinarily show: "(1) a likelihood of irreparable harm in the absence of the injunction; and (2) either a likelihood of success on the merits or sufficiently serious questions going to the merits to make them a fair ground for litigation, with a balance of hardships tipping decidedly in the movant's favor." Doninger v. Niehoff, 527 F.3d 41, 47 (2d Cir. 2008); see also VIDIVIXI, LLC v. Grattan, No. 15-CV-7364, 2016 WL 106241, at *3 (S.D.N.Y. Jan. 11, 2016) (same); Ins. Co. of the State of Pa. v. Lakeshore Toltest JV, LLC, No. 15-CV-1436, 2015 WL 8488579, at *1 (S.D.N.Y. Nov. 30, 2015) (same). While a district court has wide discretion in determining whether to grant a preliminary injunction, see Moore v. Consol. Edison Co., 409 F.3d 506, 510 (2d Cir. 2005); NM v. Hebrew Acad. Long Beach, No. 15-CV-7004, 2016 WL 105950, at *9 (E.D.N.Y. Jan. 9, 2016), it is nevertheless an "an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion," Mazurek v. Armstrong, 520 U.S. 968, 972 (1997); see also Patton v. Dole, 806 F.2d 24, 28 (2d Cir. 1986) ("[P]reliminary injunctive relief is an extraordinary remedy and should not be routinely granted."); Safe Step Walk-In Tub Co. v. CKH Indus., Inc., No. 05-CV-7543, 2015 WL 6504284, at *1 (S.D.N.Y. Oct. 26, 2015) (same). "The purpose of a preliminary injunction is to preserve the status quo between the parties pending a final determination of the merits." SymQuest Grp., Inc. v. Canon U.S.A., Inc., No. 15-CV-4200, 2015 WL 6813599, at *4 (E.D.N.Y. Aug. 7, 2015), adopted by 2015 WL 6813494 (E.D.N.Y. Aug. 28, 2015); see also In re Baldwin-United Corp. (Single Premium Deferred Annuities Ins. Litig.), 770 F.2d 328, 338 (2d Cir. 1985) ("Preliminary injunctions under Rule 65 are designed to preserve the status quo between the parties before the court pending a decision on the merits of the case at hand."); In re HSBC Bank, USA, N.A., Debit Card Overdraft Fee Litig., 99 F.Supp.3d 288, 301 (E.D.N.Y. 2015) (same).
Plaintiff has not carried his burden of persuasion. Most obviously, his preliminary injunction does not seek to preserve the status quo because essentially all of the material that he seeks (a) was destroyed long before his motion, (b) has been turned over to him, or (c) will be preserved. (See McBride Decl. ¶¶ 6-10.)
As Defendants predicted, on December 22, 2015, Plaintiff requested—albeit in a submission that at least partly functioned as a reply in support of his August 4, 2015 Motion—an adverse inference because the evidence was destroyed. (See Pro Se Pl.'s Resp. and Sanction for Spoliation of Evid. Mot. to the Def.'s Mem. of Law in Response to Pl.'s Mot. To. Preserve Evid. ("Pl.'s Evid. Reply"), at unnumbered 1 (Dkt. No. 48).) Plaintiff is, however, not entitled to an adverse inference at this time.
Spoliation refers to "the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation." Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 107 (internal quotation marks omitted) (2d Cir. 2001); see also West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999) (same). Historically, "[a] court's authority to impose sanctions in response to spoliation derives from at least two sources." Richard Green (Fine Paintings) v. McClendon, 262 F.R.D. 284, 288 (S.D.N.Y. 2009). As one court explained:
Id.
Second Circuit law makes clear that, in order to obtain an adverse inference based on the destruction of evidence, the moving party must show, first, "that the party having control over the evidence had an obligation to preserve it at the time it was destroyed," second, "that the records were destroyed with a culpable state of mind," and, third, "that the destroyed evidence was relevant to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense." Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002) (internal quotation marks omitted); see also Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 430 (S.D.N.Y. 2004) (same). Well-established Second Circuit law also makes clear that mere negligence is sufficient to trigger the "culpable state of mind" requirement. See Residential Funding, 306 F.3d at 108; see also, e.g., In re: Gen. Motors LLC Ignition Switch Litig., No. 14-MD-2543, 2015 WL 9480315, at *2 (S.D.N.Y. Dec. 29, 2015); Zubulake, 229 F.R.D. at 431; Johnson v. Waterford Hotel Grp., Inc., No. 09-CV-800, 2011 WL 87288, at *2 (D. Conn. Jan. 11, 2011).
Until December 1, 2015, Fed. R. Civ. P. 37(e) provided that, "[a]bsent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system." However, courts in the Second Circuit did not apply a different culpability standard for the deletion of electronically stored information than for other evidence. See, e.g., Bravia Capital Partners Inc. v. Fike, No. 09-CV-6375, 2015 WL 1332334, at *5 (S.D.N.Y. Mar. 25, 2015) ("Since there was no intervening act of God or other circumstance beyond [the] [p]laintiff's control, the destruction of the emails was at a minimum negligent. Thus, [the] [p]laintiff acted with a culpable state of mind." (citation omitted) (citing Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 220 (S.D.N.Y. 2003))). The Second Circuit's approach was consistent with the logic that "[a] court's authority to impose sanctions in response to spoliation derives from at least two sources," first, when a party has violated a court order, Fed. R. Civ. P. 34(b), and, second, the court's "inherent power to manage its own affairs," Richard Green, 262 F.R.D. at 288 (quoting Residential Funding, 306 F.3d at 106-07).
On December 1, 2015, however, the new Fed. R. Civ. P. 37(e) went into effect. Pursuant to that provision:
Fed. R. Civ. P. 37(e). The Advisory Committee has explained that subdivision 37(e)(2) of Rule 37 "rejects cases such as Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99 (2d Cir. 2002), that authorize the giving of adverse-inference instructions on a finding of negligence or gross negligence." Fed. R. Civ. P. 37(e) advisory committee's note to 2015 amendment. Therefore, Plaintiff stands on shakier legal footing than previous litigants seeking adverse inferences if the December 2015 amendments apply to his Motion.
Under Fed. R. Civ. P. 86(a), any amendments to the Federal Rules of Civil Procedure "take effect at the time specified by the Supreme Court, subject to 28 U.S.C. § 2074," and "govern . . . proceedings after that date in an action then pending unless . . . the Supreme Court specifies otherwise; or . . . the court determines that applying them in a particular action would be infeasible or work an injustice."
Here, the Court concludes that it would fall short of justice and practicability to apply the new Rule 37(e) to Plaintiff's Motion. As a general matter, the Court thinks that it makes sense to apply the old rules to motions briefed before the new rules came into effect. See Trowery v. O'Shea, No. 12-CV-6473, 2015 WL 9587608, at *5 n.11 (D.N.J. Dec. 30, 2015) ("Since the parties briefed the motions and conducted oral argument under the prior rule, the [c]ourt finds that it is not just and practicable to apply the amended rules in connection with these motions."). Here, Plaintiff filed an "emergency" motion before discovery even began in his case seeking material that he could have requested in discovery. Additionally, he did not actually request sanctions until his December 22, 2015 submission to this Court, over four months after Defendants objected to his original Motion and after the new Rule 37(e) went into effect. (See generally Defs.' Evid. Opp'n; Pl.'s Evid. Reply.) The Court is reluctant to reward Plaintiff's capriciously aggressive tactics by adjudicating his request under a more permissive standard. Nevertheless, because the Court takes seriously its obligation to afford special solicitude to pro se plaintiffs and because the Court does not think that justice would be served by inviting further motion practice surrounding the applicability of Rule 37(e), should Plaintiff initiate it, the Court applies the familiar law of Residential Funding and its progeny here.
The first requirement for a finding of spoliation—that "the party having control over the evidence had an obligation to preserve it at the time it was destroyed," see Residential Funding, 306 F.3d at 107—is sufficient to deny Plaintiff's Motion with respect to the December footage. Under well-established Second Circuit law, this obligation "arises when the party has notice that the evidence is relevant to litigation," which is "most commonly when suit has already been filed, providing the party responsible for the destruction with express notice, but also on occasion in other circumstances, as for example when a party should have known that the evidence may be relevant to future litigation." Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998); see also Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 436 (2d Cir. 2001); Stinson v. City of N.Y., No. 10-CV-4228, 2016 WL 54684, at *4 (S.D.N.Y. Jan. 5, 2016); Zubulake, 220 F.R.D. at 216.
As noted, Plaintiff seeks footage from December 6, 2013, December 7, 2013, December 16, 2013, and various points in March 2014. (See Pl.'s Evid. Mot. 2-3.) With respect to the first two, because the tapes would have been erased by December 28, 2013 at the latest absent staff override, (see McBride Decl. ¶¶ 4-5), Plaintiff would have to show that Defendants had "notice that the [tapes] were relevant to litigation" before that date, Kronisch, 150 F.3d at 126. Because Plaintiff's BP-8 was received on December 30, 2013, at least two days after the purge, (see Pl.'s Opp'n Ex. B. (BP-8 Form)), Plaintiff must provide some other basis to think Defendants were on notice before he filed his BP-8. In his reply, Plaintiff vehemently argues that he personally handed a "cop-out" complaint to Susney on December 9, 2013. (See Pl.'s Evid. Reply at 1, 2, 4-6, 11.)
This is insufficient. At the outset, it is worth noting that, unlike in the context of deciding a Motion to Dismiss, the Court is under no obligation to accept as true Plaintiff's submissions. To the contrary, "[a] party seeking spoliation sanctions has the burden of establishing the elements of a spoliation claim by a preponderance of the evidence." Dilworth v. Goldberg, 3 F.Supp.3d 198, 200 (S.D.N.Y. 2014) (citing Byrnie, 243 F.3d at 108); see also Gutierrez-Bonilla v. Target Corp., No. 08-CV-3985, 2009 WL 5062116, at *3 (E.D.N.Y. Dec. 16, 2009) ("The moving party bears the burden of proving that the alleged spoliator had an obligation to preserve evidence, acted culpably in destroying it, and that the evidence would have been relevant to the aggrieved party's case." (internal quotation marks omitted)). First, even assuming that Plaintiff did provide Susney with a cop-out requesting the videotapes, it is not at all clear that that would be sufficient to convey that the videotape may be relevant to future litigation. The cop-out may have made clear that the BOP should have been worried about litigation; on the other hand, perhaps the cop-out's tone, informality, and other characteristics would not forecast litigation to a reasonable observer. The missing details here matter, because imposing spoliation sanctions is serious business, and one which resists broad categorical pronouncements, like that which would be necessary to find notice based on a rumored cop-out per se sufficient to establish notice. Cf. Fujitsu, 247 F.3d at 436 ("The determination of an appropriate sanction for spoliation, if any, is confined to the sound discretion of the trial judge, and is assessed on a case-by-case basis."). Second and relatedly, even if Plaintiff made his desire that the footage be preserved unequivocally clear, it not obvious that Defendants should have known the footage "may be relevant to future litigation." Kronisch, 150 F.3d at 126. To the contrary, Plaintiff may have wanted the footage not to go on the offense as a plaintiff but rather to clear his name—albeit after his SHU punishment—in connection with Conklin's incident report. Third, the fact that Plaintiff purportedly requested the footage before filing his BP-8 may, if anything, make a reasonable observer less inclined to anticipate litigation. As courts have recognized, "[t]he first step [in the inmate grievance program] is to submit a BP-8, or informal grievance, to prison staff." Baez v. Kahanowicz, 469 F.Supp.2d 171, 178 (S.D.N.Y. 2007) (citing 28 C.F.R. Part 542 ("Administrative Remedy")), aff'd, 278 F. App'x 27 (2d Cir. 2008). To the extent Plaintiff declined to take that "first step" and submit a BP-8, opting instead to submit a cop-out first, a reasonable observer could conclude that Plaintiff was expressly declining to embark down the road to litigation.
To this, Plaintiff might well respond that his cop-out was, for all practical purposes, the same as a BP-8 and was similarly intended to initiate the litigation process. Such a response may well be sound, and the Court is certainly not prepared to conclude on the briefing in this case that a cop-out is per se a distinct creature from the BP-8. See 28 C.F.R. §§ 542.13-542.14 (indicating that "before an inmate submits a Request for Administrative Remedy," "an inmate shall first present an issue of concern informally to staff, and staff shall attempt to informally resolve the issue" and later describing a BP-9 as "a formal written Administrative Remedy Request"); see also Bailey v. Fortier, No. 09-CV-742, 2012 WL 6935254, at *2 (N.D.N.Y. Oct. 4, 2012) ("This informal, initial procedure [described in 28 C.F.R. § 542.13(a)] typically begins with the filing of a `cop-out,' which can be submitted either on a BP-8 form available to inmates through several sources, including their assigned counselors, or on paper of any other description."), adopted by 2013 WL 310306 (N.D.N.Y. Jan. 25, 2013); Bastien, 2015 WL 5008837, at *5 ("The law is clear that the `Inmate Request to Staff' forms submitted by [the] plaintiff, commonly known as `cop out' forms, are informal requests to prison staff to resolve disputes, and are only the first step in the clearly established multi-level system within the Bureau of Prisons Administrative Remedy Program."); Families Against Mandatory Minimums, How To Help your Loved Ones in Federal Prison, available at http://famm.org/wp-content/uploads/2013/08/FS-Help-a-Federal-Prisoner-2.23.11-NW.pdf ("The prisoner begins the administrative remedy process by filling out a `copout' (also known as a BP-8 form) and giving it to staff."). However, the problem with embarking down this road is that it would seem inconsistent with the many documents and statements in this case that Plaintiff submitted his BP-8 on December 28, 2013. (See, e.g., Am. Compl. ¶ 29; Pl.'s Opp'n ¶¶ 2-3; Pl.'s Opp'n Ex. B. (BP-8 Form); Pl.'s Opp'n Ex. C (BP-8 Response).) It may well be plausible that Plaintiff did submit a cop-out on December 9 that reasonably forecast his litigious designs and then later decided to submit a second informal grievance, rather than proceed to the next stage of the administrative remedy process. But that is not the question. Rather, the issue is whether Plaintiff has met his burden of showing that Defendants were under a duty to preserve the evidence at the time of its erasure. See Gutierrez-Bonilla, 2009 WL 5062116, at *3; Zubulake, 220 F.R.D. at 216. Here, there are just too many question marks hanging over the contents of Plaintiff's cop-out.
Likewise, Plaintiff has not met his burden with respect to the December 16, 2013 video. (See Pl.'s Evid. Mot. 2-3.) December 16 simply is not a meaningful date in this litigation. If the Court reviewing Plaintiff's Motion for spoliation sanctions cannot discern what about the December 16 footage is relevant to this litigation, it doubts very much that Defendants "should have known that the evidence may be relevant to future litigation" before it was destroyed. Kronisch, 150 F.3d at 126.
The Court is similarly not prepared to conclude that Defendants had notice of an obligation to preserve evidence from March 2014; however, the question is closer. Because Plaintiff's claims related to that footage may be barred by the PLRA exhaustion requirement, however, the Court declines to determine whether Defendants have indeed let documents which should have been preserved be destroyed.
To begin, Plaintiff submitted a large number of written complaints to prison authorities in early March 2014. (See Pl.'s Opp'n Ex. G (Letter from Pl. to Warden (Mar. 4, 2014)) (addressing Plaintiff's desire for signed copy of his February 25, 2014 affidavit, need for hand braces, lack of heat, and generalized allegations of cruel and unusual punishment); Pl.'s Opp'n Ex. H (Letter from Pl. to Warden Recktenwald (Mar. 12, 2014)) (complaining about inability to use phone in SHU); Pl.'s Opp'n Ex. I (Letter from Pl. to SHU lieutenant (Mar. 6, 2014)) (asking for copy of his affidavit); Pl.'s Opp'n Ex. J (Letter from Pl. (March 9, 2014)) (asking to speak with Susney); Pl.'s Opp'n Ex. K (Letter from Pl. to SHU lieutenant (Mar. 6, 2014)) (saying that he was in the SHU for a restraining order against Conklin but that Conklin is feeding him); Pl.'s Opp'n Ex. L (Letter from Pl. to SHU lieutenant (Mar. 7, 2014)) (saying that he "need[ed] to make more than one phone call"); Pl.'s Opp'n Ex. M (Letter from Pl. to Warden (Mar. 5, 2014)) (complaining that he was being prevented from using the phone, was "not allowed to w[]atch any T.V.," and was "subjected to . . . cold confinement"); Pl.'s Opp'n Ex. W (Letter from Plaintiff to Demeo (Mar. 11, 2014)); Pl.'s Opp'n Ex. X (Letter from Pl. to Warden Recktenwald (Mar. 12, 2014)).)
With the possible exception of Plaintiff's March 6, 2014 letter (to be discussed below), these letters do not indicate that Defendants "should have known that the evidence may be relevant to future litigation." Kronisch, 150 F.3d at 126. Indeed, to hold otherwise would essentially lay down a rule that prison officials should anticipate litigation whenever an inmate makes a complaint about any condition of his confinement. Given that "an adverse inference instruction is an extreme sanction and should not be imposed lightly," Curcio v. Roosevelt Union Free Sch. Dist., 283 F.R.D. 102, 107 (E.D.N.Y. 2012) (internal quotation marks omitted), the Court does not think the bar to finding its predicate obligation to preserve evidence should be so low, compare Grant v. Salius, No. 09-CV-21, 2011 WL 5826041, at *1, *3 (D. Conn. Nov. 18, 2011) (finding the defendants had no duty to preserve video footage despite the plaintiff's submitted administrative remedies where the loss was attributable to third parties), with Barnes v. Alves, 58 F.Supp.3d 296, 300 (W.D.N.Y. 2014) (considering inmate's spoliation motion where the inmate requested preservation of the tape at issue in an earlier grievance).
However, Plaintiff's March 6, 2014 letter may be different. That letter, addressed to "SHU Lt." and apparently written on "March 6, 2014 [at] 6:am [sic]," reads in its entirety:
(Pl.'s Opp'n Ex. K (Letter from Pl. to SHU lieutenant (Mar. 6, 2014)).
Although the Court is not prepared to say that Plaintiff's allusion to "future litigation" is per se enough to establish notice, cf. Siggers v. Campbell, No. 07-CV-12495, 2014 WL 4978648, at *3 (E.D. Mich. Mar. 25, 2014) (declining to find an obligation to preserve evidence despite "some rumblings" about filing a lawsuit, because the plaintiff had not established that she saw the document), aff'd 2014 WL 4978655 (E.D. Mich. Oct. 6, 2014), this letter is obviously a closer call than the others. However, as noted earlier, it is not enough to conclude that Defendants had a duty to preserve the video footage; rather, "to obtain an adverse inference instruction, a party must establish that the unavailable evidence is `relevant' to its claims or defenses." Residential Funding, 306 F.3d at 108; see also Zubulake, 220 F.R.D. at 218 (same). In this sense, relevance demands something more than that it be sufficiently probative under Fed. R. Evid. 401; "[r]ather, the party seeking an adverse inference must adduce sufficient evidence from which a reasonable trier of fact could infer that the destroyed or unavailable evidence would have been of the nature alleged by the party affected by its destruction." Residential Funding, 306 F.3d at 109 (alterations and internal quotation marks omitted); Stinson, 2016 WL 54684, at *7. Nevertheless, "[c]ourts must take care not to hold the prejudiced party to too strict a standard of proof regarding the likely contents of the destroyed or unavailable evidence," lest they "subvert the purposes of the adverse inference, and . . . allow parties who have destroyed evidence to profit from that destruction." Residential Funding, 306 F.3d at 109 (alterations and internal quotation marks omitted). Consequently, "a court's role in evaluating the `relevance' factor in the adverse inference analysis is limited to insuring that the party seeking the inference had adduced enough evidence of the contents of the missing materials such that a reasonable jury could find in its favor." Id. at 109 n.4 (emphasis in original).
The relevance of the March footage is very much in doubt. Indeed, as discussed above, Defendants have sought dismissal of Plaintiff's claims for failure to exhaust in accordance with the PLRA other than those relating to the December 6, 2013 dispute with Conklin. (See Defs.' Mem. 12-16.) And, as also discussed, Defendants may well be entitled to summary judgment on those claims if Plaintiff failed to exhaust his administrative remedies. If that should come to pass, it is not clear to this Court how Plaintiff "ha[s] adduced enough evidence of the contents of [that video tape] such that a reasonable jury could find in [his] favor" on the claims related to the events of December 6, 2013. Residential Funding, 306 F.3d at 109 n.4 (emphasis omitted). Accordingly, before delving into the thorny legal questions of whether Defendants had an obligation to preserve evidence and whether Plaintiff can show negligence, the Court declines to rule on Plaintiff's spoliation Motion with respect to the March videotape request until after it has decided the PLRA exhaustion issue.
Finally, and for sake of completeness, it is worth making explicit that Defendants need not have anticipated litigation of the March 2014 events on the basis of Plaintiff's late 2013 BP-8 and related filings. (Pl.'s Opp'n Ex. B. (BP-8 Form).) Although Plaintiff's Amended Complaint offers a single, comprehensive lament detailing his various run-ins with Conklin and stays in the SHU from December 2013 through early 2014, the events are conceptually distinct, and there is no reason to conclude Defendants were on notice of potential future litigation over the events of March 2014 through this earlier set of filings.
Lastly, appended on to the end of Plaintiff's Amended Complaint is a request for the appointment of pro bono counsel. (See Am. Compl. ¶¶ 113-15.) Although there is no constitutional right to counsel in civil cases, courts have the authority to appoint counsel for indigent plaintiffs. See 28 U.S.C. § 1915(e)(1). Nevertheless, "[b]road discretion lies with the district judge in deciding whether to appoint counsel pursuant to this provision." Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986). When analyzing whether appointment of counsel is appropriate, the Court undertakes a two-step inquiry. See Ferrelli v. River Manor Health Care Ctr., 323 F.3d 196, 203-04 (2d Cir. 2003). First, the Court "should [ ] determine whether the [movant]'s position seems likely to be of substance." Id. at 203 (quoting Hodge, 802 F.2d at 61); see also Johnston v. Maha, 606 F.3d 39, 41 (2d Cir. 2010) ("This [c]ourt considers motions for appointment of counsel by asking first whether the claimant has met a threshold showing of some likelihood of merit." (internal quotation marks omitted)). The claim must not be so "highly dubious" that the plaintiff appears to have no chance of success. Hodge, 802 F.2d at 60 (internal quotation marks omitted). In making this determination, the Court construes pleadings drafted by pro se litigants liberally and interprets them to raise the strongest arguments that they suggest. See Triestman, 470 F.3d at 474-75.
Second, if the threshold requirement is met, the Court will then proceed to consider other prudential factors such as the movant's
Ferelli, 323 F.3d at 203-04 (internal quotation marks omitted); see also Garcia v. USICE (Dep't of Homeland Sec.), 669 F.3d 91, 98-99 (2d Cir. 2011) (listing Hodge factors).
Here, Plaintiff requests counsel because, he says, "when a colorable claim of constitutional violation is presented, the trial court is under a mandatory duty to appoint counsel." (Am. Compl. ¶ 113.) Further, Plaintiff argues that his injuries are "the consequences of a [sic] numerous and continuing injuries, and that made of proceeding is much to be preferred to piece mail [sic] litigation despite the possible loss in accuracy." (Id. ¶ 114.) Plaintiff also recites several lines concerning the liberal construction of pro se complaints as well as the pre-Twombly 12(b)(6) standard. (Id.)
Even assuming that the threshold requirement has been met, the various prudential considerations militate against the appointment of counsel here. First, Plaintiff does not indicate why he would need counsel to help investigate the facts of the case. While a pro se litigant will often "be found unable to investigate the facts of his or her claim where, for example, he or she will be incarcerated for the duration of the case," Walters v. N.Y.C. Health Hosp. Corp., No. 02-CV-751, 2002 WL 31681600, at *2 (S.D.N.Y. Nov. 25, 2002) (citing Hendricks v. Coughlin, 114 F.3d 390, 394 (2d Cir. 1997)), that concern is less compelling here because Plaintiff was witness to most, if not all, of the events and facts giving rise to his claims, see Goodson v. Sedlack, No. 99-CV-10419, 2000 WL 278087, at *2 (S.D.N.Y. Mar. 14, 2000) (declining to appoint counsel where "[the] plaintiff ha[d] an intimate knowledge of the facts and circumstances which [were] the most relevant to [the] action[,]" though the "[p]laintiff's ability to investigate the case, due to his incarceration, is limited"). Moreover, Plaintiff's submissions to this Court suggest that Plaintiff will be able to adequately investigate the facts of his case. In addition to filing a motion—albeit a procedurally inappropriate one—successfully identifying discovery that Plaintiff felt was germane to his claims, Plaintiff attached a great many relevant documents to his Opposition to Defendants' Motion to Dismiss, suggesting that he should be able to investigate the facts of his case. See Bonilla v. Potter, No. 04-CV-3205, 2006 WL 995195, at *2 (S.D.N.Y. Apr. 17, 2006) (noting that "many of the documents attached to [the plaintiff's] complaint will undoubtedly be used by him as exhibits at the trial of the instant action to support the factual allegations he has made," and that he "[t]herefore . . . will not need the assistance of counsel to undertake any investigation to uncover these documents or relevant facts"). Additionally, although Plaintiff's claims are complicated by their volume and extent of attendant motion practice, the underlying legal issues are not so complex as to demand the appointment of counsel. See Davis v. Barrett, No. 02-CV-545, 2010 WL 1407291, at *1 (W.D.N.Y. Mar. 31, 2010) (denying request for pro bono counsel in connection with claim that the plaintiff was denied due process in course of administrative segregation hearing where "the facts in th[e] matter [were] not complex and [the] plaintiff ha[d] demonstrated his capacity to articulate to the [c]ourt both the facts and legal theories supporting his claim"); Armstrong v. N.Y.C. Dep't of Corr., No. 97-CV-7388, 1999 WL 61841, at *1 (S.D.N.Y. Feb. 10, 1999) (finding Eighth Amendment claim "not a complex issue"); Maldonado v. Candidus, No. 97-CV-4794, 1998 WL 690817, at *1 (S.D.N.Y. Sept. 30, 1998) ("[The plaintiff's] claims [including a claim of retaliatory action] do not appear so overwhelmingly complex that he cannot be afforded a just determination without legal representation"). Lastly, the fact that Plaintiff has not explained what attempts, if any, he has made to find an attorney on his own cuts against the appropriateness of the Court appointing pro bono counsel. See Wise v. Superintendent of Attica Corr. Facility, No. 08-CV-6312, 2009 WL 3165626, at *1 (W.D.N.Y. Sept. 25, 2009) ("[The plaintiff] does not explain what attempts, if any, he has made to retain an attorney, or have one represent him pro bono. He merely states that he is confined at Attica Correctional Facility. This fact alone does not preclude him from pursuing his own efforts, which he must do initially, to obtain representation for himself."). It is true that "conflicting evidence implicating the need for cross-examination" may be "the major proof presented to the fact finder," Hodge, 802 F.2d at 61-62, in light of the dispute over the accuracy of Conklin's incident report. However, as the foregoing analysis makes clear, this is just one of many factors, and, on balance, the Court thinks the appointment of counsel is not warranted in this matter at this time. Should circumstances change, Plaintiff may reapply for appointment of pro bono counsel.
For the foregoing reasons, the Court grants Defendants' Motion To Dismiss in part and denies in part Plaintiff's August 4, 2015 Motion. (See Dkt. Nos. 23, 32.) More specifically, the Court permits the Parties to engage in limited discovery on the issue of Plaintiff's PLRA exhaustion as described herein, and, with respect to the concededly exhausted claims:
Within 30 days of this Opinion, Plaintiff may fi le a Second Amended Complaint.
The Clerk of the Court is respectfully requested to terminate the pending Motions. (See Dkt. No. 23, 32.)
SO ORDERED.
Additionally, in his Opposition, Plaintiff attached as Exhibit U a February 25, 2014 an "Administrative Detention Order" signed by Hickman. (See Pl.'s Opp'n Ex. U (Administrative Detention Order).) To the extent that Plaintiff intends to bring a claim against Hickman over his role in a confinement to the SHU, he should clarify his claims in his Second Amended Complaint.
To be sure, "the right to counsel and the right of access to the courts are interrelated, since the provision of counsel can be a means of accessing the courts." Benjamin v. Fraser, 264 F.3d 175, 186 (2d Cir. 2001); see also Johnson v. Fischer, No. 12-CV-210, 2015 WL 670429, at *22 (N.D.N.Y. Feb. 17, 2015) (same). However, "the right of access to the courts is grounded not in the Sixth Amendment but in various other constitutional provisions. . . ." Bourdon v. Loughren, 386 F.3d 88, 95 (2d Cir. 2004); see also Osgood v. Amato, No. 12-CV-565, 2013 WL 3777189, at *6 (N.D.N.Y. July 17, 2013) ("[A]ccess claims concern the ability of prisoners to attack their sentences, directly or collaterally, and to challenge the conditions of their confinement. By contrast the Sixth Amendment confers the right of a pretrial detainee, in a case brought against him by the state, to utilize counsel in his defense." (alterations and internal quotation marks omitted)).
The sign-in logs Plaintiff requests are:
