Wood v. Colon et al
Filing
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ORDER granting in part and denying in part the Defendants' 28 Motion to Dismiss. The remaining claims in this case are the retaliation claims brought against Defendants Colon and Ocasio. The Clerk is directed to mail a copy of this Order and the accompanying Memorandum of Decision to the Plaintiff. Signed by Judge Vanessa L. Bryant on 5/19/2016. (Nadler, S.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JAMES P. WOOD,
Plaintiff,
v.
CAPTAIN COLON, et al.,
Defendants.
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CASE NO. 3:14-cv-1467 (VLB)
May 18, 2016
MEMORANDUM OF DECISION GRANTING AND DENYING IN PART DEFENDANTS’
MOTION TO DISMISS
Plaintiff, James P. Wood, currently incarcerated at the MacDougall-Walker
Correctional Institution in Suffield, Connecticut, has filed this action pro se
against defendants Captain Colon, Officer S. Ocasio, Social Worker Erica
Richardson and Warden Edward Maldonado.1 The remaining claims include use
of excessive force, use of threats, deliberate indifference to safety by knowingly
disseminating false information regarding gang affiliation, retaliation, conspiracy,
and failure to discipline staff. The defendants have filed a motion to dismiss all
remaining claims. For the reasons that follow, the defendants’ motion is granted
and denied in part.
I.
Standard of Review
When considering a motion to dismiss filed pursuant to Fed. R. Civ. P.
12(b)(6), the Court accepts as true all factual allegations in the complaint and
1
All claims against defendant Town of Somers were dismissed in the Initial
Review Order filed on October 6, 2015. See [Dkt. #14]. In addition, the Court
dismissed all claims for violation of the Health Insurance Portability and
Accountability Act, deprivation of property and denial of equal protection of the
laws. [Id.].
draws inferences from these allegations in the light most favorable to the plaintiff.
See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Flores v. Southern Peru Copper
Corp., 343 F.3d 140, 143 (2d Cir. 2003). The Court considers not whether the
plaintiff ultimately will prevail, but whether he has stated a claim upon which
relief may be granted so that he should be entitled to offer evidence to support
his claim. Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013).
In reviewing the complaint in response to a motion to dismiss, the Court
applies “a ‘plausibility standard,’ which is guided by two working principles.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). First, the requirement that the Court
accept the allegations in the complaint as true “‘is inapplicable to legal
conclusions,’ and ‘[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.’” Harris v. Mills, 572
F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 556 U.S. at 678). Second, to survive a
motion to dismiss, the complaint must state a plausible claim for relief.
Determining whether the complaint states a plausible claim for relief is “‘a
context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.’” Id. (quoting Iqbal, 556 U.S. at 679). Even under
this standard, however, the Court liberally construes a pro se complaint. See
Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013).
2
II.
Allegations2
The incidents underlying the complaint occurred at Osborn Correctional
Institution. On March 15, 2014, defendant Colon told the plaintiff that he had
entered into the Department of Correction main computer a statement that the
plaintiff was the “head/leader of the Pecker Wood A/B” gang. [Am. Compl., Dkt.
#10-1 at 1]. Defendant Colon stated that this information would prevent the
plaintiff from being granted parole. [Id.]
On March 21, 2014, defendants Colon and Ocasio searched the plaintiff’s
cell. [Compl., Dkt. #1 at 6]. During the search, they broke the plaintiff’s
headphone and destroyed family photos. [Id.] When the plaintiff complained that
they had damaged his personal property, defendant Colon verbally assaulted the
plaintiff. [Id.]
On March 31, 2014, the plaintiff spoke with defendant Richardson in the
mental health unit. When he complained about the cell search, she told him that
he could not complain about correctional staff and asked him to leave the mental
health unit. [Id.] That evening, the plaintiff was called to defendant Colon’s
office. Defendant Richardson and several unidentified officers were present.
Defendant Colon called the plaintiff a “cry baby and grown up bitch.” [Id.] The
2
In evaluating the allegations offered by the pro se plaintiff, the Court considers
the facts from the original complaint (Dkt. #1), that have not been repeated in
the amended complaint. See Washington v. Westchester Cnty. Dep’t of Corr.,
No. 13 Civ. 5322 (KPF), 2015 WL 408941, at *1, n. 1 (S.D.N.Y. Jan. 30, 2015)
(citations and quotations omitted).
3
verbal harassment continued over the next few weeks. [Id.]
On May 22, 2014, the plaintiff wrote a letter to defendant Warden
Maldonado complaining about defendant Colon’s behavior. [Id. at 9]. When
defendants Colon and Ocasio learned about the letter, they pushed the plaintiff in
the hallway and threatened harm to him and his family if he continued writing to
the warden. [Id. at 8]. Specifically, the plaintiff contends that one of the two
officers told him that if he kept “writing the warden [defendant] Colon will have
[the plaintiff] and [his] family taken care of[].” [Id.].
On June 13, 2014, defendant Ocasio searched the plaintiff’s cell and issued
him a disciplinary report for possession of sexually explicit materials and
nuisance contraband. [Id.] Upon receiving the disciplinary report, the plaintiff
was taken to the restrictive housing unit. During transport, defendant Ocasio
pushed and verbally assaulted the plaintiff. [Id.].
The following day, June 14, 2014, the plaintiff wrote a letter to Sandy Wood.
[Id.] Defendant Ocasio opened and read the letter. [Id.] Defendant Ocasio
claimed the letter contained specific threats against defendant Colon and issued
the plaintiff a second disciplinary report. [Id.]. The plaintiff pled guilty to both
charges. [Id. at 9].
On June 24, 2014, the plaintiff learned that he had been denied parole
because of the statement defendant Colon had entered into the Department of
Correction computer regarding gang affiliation. [Dkt. #10, Am. Compl. at 1].
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III.
Analysis
The defendants move to dismiss all remaining claims. First, they argue
that the Eleventh Amendment bars all claims for damages against them in their
official capacities. Second, they contend that the plaintiff’s allegations are
insufficient to support a claim for conspiracy. Third, the defendants argue that
the allegations of verbal harassment, sexual harassment and use of excessive
force do not rise to the level of constitutional violations. Fourth, they note that
the plaintiff fails to demonstrate personal involvement of defendant Warden
Maldonado in his claim for improper supervision of subordinates. Finally, the
defendants contend that any retaliation claims are conclusory.
A.
Eleventh Amendment Immunity, Injunctive Relief and Declaratory Relief
The plaintiff names each of the defendants in his or her individual and
official capacities. In his prayer for relief, he seeks $250,000.00 in compensatory
damages and unspecified punitive damages. The plaintiff also seeks unspecified
declaratory and injunctive relief.
The Eleventh Amendment divests the district court of subject matter
jurisdiction over any claims for monetary damages against a state official acting
in his official capacity unless the state has waived this immunity or Congress has
abrogated it. See Kentucky v. Graham, 473 U.S. 159, 169 (1985). Section 1983
does not abrogate state sovereign immunity. See Quern v. Jordan, 440 U.S. 332,
341-45 (1979). Nor has the plaintiff alleged any facts suggesting that Connecticut
has waived this immunity. Accordingly, any claims for monetary damages
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against the defendants in their official capacities are barred by the Eleventh
Amendment. The defendants’ motion to dismiss is granted as to these claims.
The incidents underlying the complaint occurred at Osborn Correctional
Institution and all defendants are located there. The plaintiff now is confined at
MacDougall-Walker Correctional Institution. His transfer renders moot any claims
for injunctive relief against correctional staff at Osborn Correctional Institution.
See Shepherd v. Goord, 662 F.3d 603, 610 (2d Cir. 2011) (requests for injunctive
relief against officials at a particular correctional facility become moot when
inmate is transferred to a different facility). Any requests for injunctive relief are
dismissed pursuant to 28 U.S.C. § 1915A(b)(1).
The plaintiff also seeks unspecified declaratory relief. Declaratory relief
serves to “settle legal rights and remove uncertainty and insecurity from legal
relationships without awaiting a violation of the rights or a disturbance of the
relationships.” Colabella v. Am. Inst. of Certified Public Accountants, No. 10-cv2291(KAM/ALC), 2011 WL 4532132, at *22 (E.D.N.Y. Sept. 28, 2011) (citations
omitted). Declaratory relief operates prospectively to enable parties to adjudicate
claims before either side suffers great damages. See In re Combustible Equip.
Assoc., 838 F.2d 3, 37 (2d Cir. 1988). The incidents underlying this action have
already occurred. The plaintiff has not identified any legal relationships or issues
that require resolution via declaratory relief. Accordingly, the request for
declaratory relief is dismissed pursuant to 28 U.S.C. § 1915A(b)(1). See Camofi
Master LDC v. College P’ship, Inc., 452 F. Supp. 2d 462, 480 (S.D.N.Y. 2006)
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(concluding that claim for declaratory relief that is duplicative of adjudicative
claim underlying action serves no purpose).
B.
Verbal Harassment and Use of Excessive Force
The defendants next argue that the plaintiff’s allegations of verbal sexual
harassment and use of excessive force do not rise to the level of constitutional
violations.
Verbal threats and harassment have been held not to state a cognizable
claim under section 1983. See Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir.
1986) (name-calling without appreciable injury not constitutional injury); Murray
v. Pataki, No. 03-CV-1263 (LEK/RFT), 2007 WL 956941, at *8 (N.D.N.Y. Mar. 29,
2007) (“Plaintiff’s claim for verbal harassment in the form of racial statements and
threats is not actionable under 42 U.S.C. § 1983.”); Jean-Laurant v. Wilkerson, 438
F. Supp. 2d 318, 325 (S.D.N.Y. 2006) (“[V]erbal intimidation does not rise to the
level of a constitutional violation . . . .”); Shabazz v. Pico, 994 F. Supp. 460, 474
(S.D.N.Y. 1998) (verbal harassment or profanity alone, regardless of how
inappropriate or unprofessional, is not actionable under section 1983).
The plaintiff alleges only that defendants Colon and Ocasio made threats
and sexual statements. He does not allege that he suffered any actionable injury
as a result of the verbal harassment. Thus, the statements do not rise to the level
of a constitutional violation. The defendants’ motion to dismiss is granted as to
the claims for verbal and sexual harassment.
The plaintiff also includes claims for excessive use of force based on his
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allegations that defendant Ocasio pushed him while he was being escorted to
restrictive housing and that defendants Colon and Ocasio pushed and pulled him
in the hallway. The Second Circuit considers brief confrontations between
inmates and prison guards that cause de minimis injuries insignificant for Eighth
Amendment purposes. See Perry v. Stephens, 659 F. Supp. 2d 577, 582-83
(S.D.N.Y. 2009) (citing cases). The plaintiff alleges only two brief encounters with
no physical injuries. Thus, he fails to state a plausible claim, and the defendants’
motion to dismiss is granted as to the excessive force claim.
C.
Conspiracy
In his third claim, the plaintiff alleges that defendant Richardson conspired
with the other defendants to deprive him of his Eighth and Fourteenth
Amendment rights. The plaintiff cites 42 U.S.C. § 1985(c) in the jurisdiction
section of his complaint. There is no such section. The Court assumes that the
plaintiff is referencing section 1985(3), and that he brings his conspiracy claim
pursuant to that section.
Section 1985(3) prohibits conspiracies motivated by racial or otherwise
class-based invidious discriminatory animus. Iqbal v. Hasty, 490 F.3d 143, 176
(2d Cir. 2007), rev’d on other grounds sub nom. Ashcroft v. Iqbal, 556 U.S. 62
(2009). Section 1985(3) may not be construed as a “general federal tort law”; it
does not provide a cause of action based on the denial of due process or any
other constitutional right. Griffin v. Breckenridge, 403 U.S. 88, 101-02 (1971). As
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the plaintiff makes no reference to racial or class-based discrimination, his
section 1985(3) claim fails.
Even if the plaintiff is asserting his conspiracy claim under section 1983, it
should be dismissed. To state a section 1983 claim for conspiracy, the plaintiff
must allege facts demonstrating an agreement between two or more state actors,
or between a state actor and a private party, to act in concert to inflict an
unconstitutional injury and an overt act done in furtherance of the agreement that
causes damages. See Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999).
Since the conspiracy plaintiff alleges concerns the cell searches, verbal, and
physical harassment which the Court has already found to be insufficient to
establish a constitutional violation, his conspiracy claim must also fail. The
defendants’ motion to dismiss is granted as to the conspiracy claim.
D.
Supervisory Liability
The plaintiff asserts a claim for supervisory liability against defendant
Maldonado for failing to properly supervise the other defendants.
The Second Circuit has historically recognized five ways in which a
supervisory official may be held liable for a civil rights violation. To state a claim
for supervisory liability, the plaintiff must allege that the defendant either: (1)
actually and directly participated in the constitutional violation; (2) failed to
remedy a wrong after being informed of the wrong through a report or appeal; (3)
created a policy or custom that sanctioned conduct amounting to a constitutional
violation, or allowed such a policy or custom to continue; (4) was grossly
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negligent of subordinates who committed a violation; or (5) failed to act on
information indicating that unconstitutional acts were occurring. See Hernandez
v. Keane, 341 F.3d 137, 145 (2d Cir. 2003) (citing Colon v. Coughlin, 58 F.3d 865,
873 (2d Cir. 1995)). The plaintiff also must demonstrate a causal link between the
supervisor’s inaction and his injuries. See Poe v. Leonard, 282 F.3d 123, 140 (2d
Cir. 2002).
In 2009, the Supreme Court addressed this issue and indicated that the
term “supervisory liability” is a misnomer; a government official, regardless of
his position, is accountable only for his own conduct. See Ashcroft v. Iqbal, 556
U.S. 662, 676 (2009). The Second Circuit has not addressed the viability of all of
the categories of supervisory liability following Iqbal. Some district courts have
concluded that only the first and third categories remain. See, e.g., Bellamy v.
Mount Vernon Hosp., No. 07 Civ. 1801(SAS), 2009 WL 1835939 (S.D.N.Y. June 26,
2009), aff’d, 387 F. App’x 55 (2d Cir. 2010). Others continue to consider the
particular violations alleged and the role of the supervisory official in deciding
whether any of the five categories apply. See, e.g., D’Olimpio v. Crisafi, 718 F.
Supp. 2d 340, 347 (S.D.N.Y. 2010).
The defendants rely on the Second Circuit’s affirmance in Bellamy to argue
that this Court should consider only the first and third categories of supervisory
liability claims. However, the Second Circuit has more recently declined to
address the impact of Iqbal on the five categories of supervisory liability. See
Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013) (“Although the
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Supreme Court’s decision in Ashcroft v. Iqbal … may have heightened the
requirements for showing a supervisor’s personal involvement with respect to
certain constitutional violations, we need not reach Iqbal’s impact on Colon in
this case….”); see also Hogan v. Fischer, 738 F.3d 509, 519 n. 3 (2d Cir. 2013)
(expressing “no view on the extent to which [Iqbal] may have heightened the
requirements for showing a supervisor’s personal involvement with respect to
certain constitutional violations”). Until the Second Circuit specifically addresses
the impact of Iqbal, this Court will continue to consider all categories of
supervisory liability claims.
Here, the plaintiff alleges that he wrote to defendant Maldonado on May 22,
2014, complaining about the actions taken by defendant Colon. Although merely
writing to defendant Maldonado may not be sufficient for the plaintiff to prevail on
his claim, it is sufficient to survive a motion to dismiss. See Grullon, 720 F.3d at
141 (holding that although insufficient at trial or on summary judgment,
allegations that prisoner informed supervisory officials of his claim are sufficient
to state a claim for supervisory liability).
However, none of the actions discussed in the letter, namely, verbal
harassment, destruction of property, and the entry of false information into
Department of Correction records for the purpose of denying plaintiff parole rise
to the level of constitutional violations. As for the latter, a prisoner “has no
constitutionally or federally protected right to parole.” Hicks v. Lantz, No. 3:08cv-1012 (MRK), 2009 WL 2869753, at **3-4 (D. Conn. Sept. 1, 2009). Thus,
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plaintiff’s claim falls outside the scope of the Fourteenth and Eighth
Amendments. See Colon v. Furiani, No. 07-cv-6022L, 2008 WL 5000521, at **4-5
(W.D.N.Y. Nov. 19, 2008) (granting summary judgment to defendants on § 1983
claim where plaintiff contended that a defendant “wrongfully denied plaintiff the
opportunity to complete [a] class, which jeopardized plaintiff’s chances for
parole” because the claim was “purely speculative and does not demonstrate a
violation of any constitutional right”) (quoting Vitek v. Jones, 445 U.S. 480, 488,
100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (“There is no ‘constitutional or inherent
right’ to parole”)).
E.
Retaliation
Finally, the Court determined that the plaintiff alleged facts supporting a
claim of retaliation against defendants Ocasio and Colon. An inmate asserting a
First Amendment retaliation claim must demonstrate that his speech or conduct
was protected, the defendants took adverse action against him, and there was a
causal connection between the adverse action and the protected speech or
conduct. Holland v. Goord, 758 F.3d 215, 225 (2d Cir. 2014).
The plaintiff alleges that he wrote a letter of complaint to the warden. This
arguably is protected conduct. See King v. McIntyre, No. 9:11-CV-1457, 2015 WL
1781256, at *13 (N.D.N.Y. Apr. 8, 2015) (“[W]riting a letter of complaint to a
superior officer is at least arguably protected conduct”). The plaintiff alleges
that, once defendants Colon and Ocasio learned of the letter, they threatened the
plaintiff and his family and used excessive force against him. The two
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disciplinary reports also were issued soon after defendants Colon and Ocasio
learned of the letter. These allegations are sufficient to demonstrate the
defendants’ awareness of the protected conduct and a causal connection
between the protected activity and the allegedly retaliatory conduct. See Espinal
v. Goord, 558 F.3d 119, 129 (2d Cir. 2009) (“A plaintiff can establish a causal
connection that suggests retaliation by showing that the protected activity was
close in time to the adverse action”).
The adverse action by the defendants must “deter a similarly situated
inmate of ordinary firmness from exercising his or her constitutional rights….”
Id. at 128 n. 7 (2d Cir. 2009). It need not necessarily deter the plaintiff. General
comments and verbal abuse are insufficient to constitute adverse action. See,
e.g., King, 2015 WL 1781256, at **20-21 (statement that plaintiff would “have a
hard time here” if he continued to write complaints considered too vague to
constitute adverse action); Bartley v. Collins, No. 95 Civ. 10616, 2006 WL 1289256,
at *6 (S.D.N.Y. May 10, 2006) (“[V]erbal threats such as ‘we going to get you, you
better drop the suit,’ do not rise to the level of adverse action”). Depending on
context, more specific threats may constitute adverse action. See King, 2015 WL
1781256, at *21; Barrington v. New York, 806 F. Supp. 2d 730, 746 (S.D.N.Y. 2011)
(verbal threats can constitute adverse action even if they do not rise to level of
Eighth Amendment violations if sufficiently direct and specific).
The plaintiff alleges that defendants Colon and Ocasio threatened to harm
both the plaintiff and his family if he continued to write letters to the warden. He
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also identifies use of force and issuance of disciplinary reports as the retaliatory
conduct. Because the plaintiff identifies more than verbal threats, the Court
considers the allegations sufficient to state a claim for retaliation. The
defendants’ motion to dismiss is denied as to the retaliation claim.
IV.
Conclusion
The defendants’ motion to dismiss [Dkt. #28] is GRANTED as to the claims
for verbal sexual harassment, use of excessive force, conspiracy, and as against
the defendants in their official capacities. The motion is DENIED as to the claims
for retaliation against defendants Colon and Ocasio. In addition, the requests for
injunctive and declaratory relief are DISMISSED pursuant to 28 U.S.C. §
1915A(b)(1). Accordingly, the remaining claims in this case are First Amendment
retaliation claims against defendants Colon and Ocasio.
As all claims against defendants Richardson and Maldonado have been
dismissed, the Clerk is directed to terminate them as defendants in this case.
SO ORDERED this 19th day of May 2016, at Hartford, Connecticut.
/s/
Vanessa L. Bryant
United States District Judge
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