Hernandez v. Sposato et al

Filing 24

ORDER granting 11 Motion to Dismiss for Failure to State a Claim For the reasons discussed herein, the Court grants defendants motion to dismiss and dismisses the Section 1983 claim with prejudice. The Clerk of the Court shall enter judgment acco rdingly and close the case. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Memorandum and Order would not be taken in good faith and, therefore, in forma pauperis status is denied for purpose of an appeal. SO ORDERED. Ordered by Judge Joseph F. Bianco on 7/8/2015. (Mesrobian, David)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 14-CV-4593 (JFB)(ARL)
_____________________

DERICK HERNANDEZ,
Plaintiff,
VERSUS

SHERIFF MICHAEL SPOSATO, UNDERSHERIFF HESSE, CAPTAIN FORD, SGT. CURTIN,
JOHN DOE,
Defendants.
_______________________
MEMORANDUM AND ORDER
July 8, 2015
_______________________

JOSEPH F. BIANCO, District Judge
Incarcerated pro se plaintiff Derick
Hernandez (“plaintiff” or “Hernandez”)
brings this action against defendants Sheriff
Michael Sposato (“Sposato”), Undersheriff
Hesse, Captain Ford, Sgt. Curtin, and John
Doe (collectively, “defendants”), alleging a
violation of his constitutional rights pursuant
to 42 U.S.C. § 1983. Plaintiff claims that,
while he was housed at the Nassau County
Correctional Center (“NCCC”) pending trial,
defendants wrongfully prevented him from
any “contact visits” after he was involved in
violent altercations with another inmate.

failed to allege a violation of a
constitutionally protected right. 1 For the
following reasons, the Court agrees, and
grants the motion to dismiss.
I. BACKGROUND
A. Factual Background
The Court takes the following facts from
the complaint. These are not findings of fact
by the Court; instead, the Court assumes
these facts to be true for purposes of deciding
the pending motion and construes them in a
light most favorable to plaintiff, the nonmoving party.

Defendants move to dismiss the
complaint on the ground that plaintiff has

Plaintiff was in detention at NCCC when
the events at issue occurred, pending trial in

1

issues are moot in light of the Court’s ruling that
plaintiff has failed to state a plausible claim under
Section 1983 and, thus, the Court does not address
them.

Defendants also argue, inter alia, that plaintiff failed
to exhaust his administrative remedies as required by
the Prison Litigation Reform Act (“PLRA”), 42 U.S.C.
§ 1997e(a), that his complaint fails to allege a plausible
Monell claim, and that the individually named prison
officials are shielded by qualified immunity. Such

state court.2 On or about November 9, 2013,
plaintiff alleges that he was involved in a
violent altercation with another inmate,
Isaiah Johnson, in his housing unit. (Compl.
at IV.) Plaintiff alleges that the prison
officials intervened, moved plaintiff and
Johnson to cells further from each other, and
put a “keep separate” order in place. (Id.)

dismiss on October 6, 2014.
Plaintiff
opposed on November 19, 2014, and the
defendants replied on December 19, 2014.
The matter is fully submitted, and the Court
has fully considered the submissions of the
parties.

Plaintiff then alleges that, on or about
November 12, 2013, he was called down to
the visit floor for a contact visit. (Id.)
Approximately twenty minutes after plaintiff
was called down to the visit floor, plaintiff
alleges Johnson was also brought down by
the guards for a visit. (Id.) Plaintiff alleges
the guards seated Johnson behind plaintiff,
and Johnson then punched him from behind,
causing plaintiff to turn around to “protect
myself.” (Id.)

In reviewing a motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6),
the Court must accept the factual allegations
set forth in the complaint as true and draw all
reasonable inferences in favor of the plaintiff.
See Cleveland v. Caplaw Enters., 448 F.3d
518, 521 (2d Cir. 2006); Nechis v. Oxford
Health Plans, Inc., 421 F.3d 96, 100 (2d Cir.
2005). “In order to survive a motion to
dismiss under Rule 12(b)(6), a complaint
must allege a plausible set of facts sufficient
‘to raise a right to relief above the speculative
level.’” Operating Local 649 Annuity Trust
Fund v. Smith Barney Fund Mgmt. LLC, 595
F.3d 86, 91 (2d Cir. 2010) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555
(2007)). This standard does not require
“heightened fact pleading of specifics, but
only enough facts to state a claim to relief that
is plausible on its face.” Twombly, 550 U.S.
at 570.

II. STANDARD OF REVIEW

Plaintiff alleges that, after the second
incident on the visit floor, defendants sent
him a letter notifying him that he was
restricted from having any further contact
visits. (Id.) Plaintiff asserts that he has had
no contact visits since that incident and that
defendants have not responded to his appeals
of the restriction; 3 plaintiff asserts this
restriction is unjust because defendants
precipitated the incident by bringing Johnson
to the visit floor when plaintiff was present,
despite the fact that they should have been
aware a “keep separate” order was in place.
(Id.)

The Supreme Court clarified the
appropriate pleading standard in Ashcroft v.
Iqbal, setting forth a two-pronged approach
for courts deciding a motion to dismiss. 556
U.S. 662 (2009). The Supreme Court
instructed district courts to first “identify[ ]
pleadings that, because they are no more than
conclusions, are not entitled to the
assumption of truth.” Id. at 679 (explaining

B. Procedural Background
Plaintiff filed the complaint in this action
on July 31, 2014. Defendants moved to
2

After plaintiff was tried and convicted in state court
in February 2014, he was indicted in federal court on
separate charges and is currently pending trial before
Judge Joanna Seybert. (See United States v. Derick
Hernandez et al., No. 14-CR-00264 (JS).)
3
The length of the contact visit restriction is unclear—
plaintiff appears to assert that he has had no contact
visits from the time of the second fight to the filing of

the complaint, but also alleges that defendants
informed him the restriction would last only “till I
leave and return.” (Compl. at 2.) For the purposes of
the motion, the Court will assume that the restriction
lasted at least from November 2013 through July 2014,
when plaintiff filed the complaint, but that there was a
defined endpoint connected to plaintiff’s ongoing
criminal case.

2

that though “legal conclusions can provide
the framework of a complaint, they must be
supported by factual allegations”). Second,
if a complaint contains “well-pleaded factual
allegations, a court should assume their
veracity and then determine whether they
plausibly give rise to an entitlement to relief.”
Id. A claim has “facial plausibility when the
plaintiff pleads factual content that allows the
court to draw the reasonable inference that
the defendant is liable for the misconduct
alleged. The plausibility standard is not akin
to a ‘probability requirement,’ but it asks for
more than a sheer possibility that a defendant
has acted unlawfully.” Id. at 678 (quoting
and citing Twombly, 550 U.S. at 556-57
(internal citation omitted)).

III. DISCUSSION
Plaintiff asserts that defendants violated
his constitutional rights under Section 1983.
To prevail on a claim under Section 1983, a
plaintiff must show: (1) the deprivation of
any rights, privileges, or immunities secured
by the Constitution and laws, (2) by a person
acting under the color of state law. 42 U.S.C.
§ 1983. Section 1983 does not itself create
substantive rights; it offers “a method for
vindicating federal rights elsewhere
conferred.” Patterson v. Cnty. of Oneida,
375 F.3d 206, 225 (2d Cir. 2004).
Plaintiff asserts that defendants’
restriction of his contact visits was a violation
of his Fourteenth Amendment right to due
process. 4 (Pl.’s Opp. at 1-2.) Plaintiff
demands injunctive relief (presumably
restoring his contact visits), as well as
compensatory and punitive damages.
(Compl. at V.)

Where, as here, the plaintiff proceeds pro
se, courts are “‘obliged to construe his
pleadings liberally.’” Sealed Plaintiff v.
Sealed Defendant, 537 F.3d 185, 191 (2d Cir.
2008) (quoting McEachin v. McGuinnis, 357
F.3d 197, 200 (2d Cir. 2004)); see also
McPherson v. Coombe, 174 F.3d 276, 280
(2d Cir. 1999) (stating that a pro se plaintiff’s
pleadings must be interpreted “to raise the
strongest arguments that they suggest”
(citation and internal quotation marks
omitted)). A pro se plaintiff’s complaint,
while liberally interpreted, still must “‘state a
claim to relief that is plausible on its face.’”
Mancuso v. Hynes, 379 F. App’x 60, 61 (2d
Cir. 2010) (quoting Iqbal, 556 U.S. at 678);
see also Harris v. Mills, 572 F.3d 66, 72 (2d
Cir. 2009).

Accepting the factual allegations set forth
in the complaint as true and drawing all
reasonable inferences in favor of the plaintiff,
the Court nonetheless finds that plaintiff has
failed to state a plausible claim under Section
1983. Defendants argue that plaintiff has
failed to state a claim under Section 1983
because his claim—which solely involves the
restriction of his contact visits—does not
involve the deprivation of any right,
privilege, or immunity secured by the
Constitution. (Defs.’ Mem., ECF No. 13, at
7-9.) The Court agrees.

4

It is not clear from the face of his complaint which
constitutional rights plaintiff asserts were violated by
this restriction. However, in plaintiff’s opposition to
the motion to dismiss, he asserts that, “My [complaint]
stated I was barred from having ‘contact visits,’ which
was a ‘double jeopardy’ punishment because I was
never given a sanctioned ‘loss of contact visits’ from
the hearing officer.” (Pl.’s Opp., ECF No. 17., at 1-2.)
Though plaintiff references the “double jeopardy”
provision of the Fifth Amendment, which prohibits an

individual from being prosecuted or punished twice
for the same offense, the rest of the statement—as well
as the assertions made by plaintiff in the complaint
with respect to his contact visits being taken away
without justification or review—appears to assert a
violation of due process caused by defendants’
restriction of plaintiff’s contact visits. The Court will
therefore construe plaintiff’s complaint, brought
against state officials, as a procedural due process
claim under the Fourteenth Amendment.

3

“To establish a claim under the Due
Process Clause, a plaintiff must demonstrate
that he possesses a constitutionally protected
interest in life, liberty, or property, and that
state action has deprived him of that interest.”
Doe v. Pataki, 3 F. Supp. 2d 456, 466
(S.D.N.Y. 1998) (citing Valmonte v. Bane, 18
F.3d 992, 998 (2d Cir. 1994)). In this case,
only plaintiff’s purported liberty interest—
not any interest in life or property—was
affected by the restriction of his contact
visits. See Baskerville v. Goord, No. 97 Civ.
6413 (BSJ), 1998 WL 778396, at *6
(S.D.N.Y. Nov. 5, 1998). To prevail on this
procedural due process claim under Section
1983, plaintiff must show that (1) he
possessed a protected liberty interest and (2)
defendants deprived him of that interest as a
result of insufficient process. See, e.g., Arce
v. Walker, 139 F.3d 329, 333 (2d Cir. 1998)
(citing Ky. Dep’t of Corr. v. Thompson, 490
U.S. 454, 460 (1989)); Bedoya v. Coughlin,
91 F.3d 349, 351-52 (2d Cir. 1996).

person convicted of crime, and [have]
stigmatizing consequences”) (citation and
internal quotation marks omitted).
State statutes and regulations also confer
liberty interests on prisoners. Arce, 139 F.3d
at 334. A prisoner’s confinement or restraint
violates a state liberty interest if it “imposes
[an] atypical and significant hardship on an
inmate in relation to the ordinary incidents of
prison life.” Palmer v. Richards, 364 F.3d 60,
64 (2d Cir. 2004) (quoting Sandin, 515 U.S.
at 484).
With respect to the contact visits at issue
in this case, courts in the Second Circuit have
consistently held that neither the Due Process
Clause nor New York state law create a
protected liberty interest for inmates with
respect to contact visits. Baskerville, 1998
WL 778396, at *6 (dismissing Section 1983
claims under Fifth and Fourteenth
Amendments for deprivation of contact visits
because “contact visits of prison inmates are
a privilege for inmates, not a right, and thus
do not give rise to a liberty interest protected
by the due process clause”); Mateo v. Heath,
No. 11 Civ. 636 (LAP), 2012 WL 1075836,
at *3 (S.D.N.Y. Mar. 29, 2012) (same);
Zimmerman v. Burge, No. 06-CV-0176
(GLS)(GHL), 2008 WL 850677, at *2
(N.D.N.Y. Mar. 28, 2008) (finding that
“there is abundant case law establishing that
inmates have no liberty or property interest in
contact visits” under the Due Process Clause
or New York law); Saxon v. Goord, No. 06CV-0826, 2007 WL 1695582, at *4
(W.D.N.Y. June 7, 2007) (“It is wellestablished that contact visits are a privilege
for inmates, not a right.”) (emphasis in
original). This Court finds the analysis
contained in these cases to be persuasive.
Their logic follows from the Supreme
Court’s holding in Overton v. Bazzetta, 539
U.S. 126 (2003), which found that “‘[a]n
inmate does not retain rights inconsistent
with proper incarceration,’ and that ‘freedom

Inmates’ liberty interests derive from two
sources: (1) the Due Process Clause itself, or
(2) state statutes or regulations. Arce, 139
F.3d at 333. The Supreme Court, however,
“has narrowly circumscribed [the scope of
the Due Process Clause itself] to protect no
more than the ‘most basic liberty interests in
prisoners,’” id. (quoting Hewitt v. Helms, 459
U.S. 460, 467 (1983)), limiting it to freedom
from restraints that “exceed[] the sentence in
. . . an unexpected manner,” Sandin v.
Conner, 515 U.S. 472, 478 (1995). Thus, the
Due Process Clause does not protect against
an adverse change in an inmate’s conditions
of confinement so long as the change is
“‘within the normal limits or range of custody
which the conviction has authorized the State
to impose.’” Arce, 139 F.3d at 333-34
(quoting Sandin, 515 U.S. at 484); see
Sandin, 515 U.S. at 479 n.4 (observing that
proscribed conditions of confinement must
be “qualitatively different from the
punishment characteristically suffered by a
4

institution of a “keep separate” order.
Notwithstanding this purported error, on the
face of plaintiff’s complaint, he admits to
being involved in these incidents of violence,
including one incident on the visitation floor
when other inmates and their outside visitors
were apparently present, and only disclaims
responsibility for initiating one of the
altercations. Therefore, as discussed above,
given the discretion granted to prison
officials to maintain order and safety at the
institution, plaintiff alleges no facts that
would support a plausible claim that
defendants somehow acted arbitrarily or
without purpose in restricting his contact
visits. See id. at 548 n.29 (finding that the
body of the Supreme Court’s precedent
regarding restrictions on convicted inmates
and pretrial detainees reflects that “courts
should defer to the informed discretion of
prison administrators because the realities of
running a corrections institution are complex
and difficult, courts are ill equipped to deal
with these problems, and the management of
these facilities is confided to the Executive
and Legislative Branches, not to the Judicial
Branch.”).5

of association is among the rights least
compatible with incarceration.’” Mills v.
Fischer, No. 09-CV-0966A, 2010 WL
364457, at *2 (W.D.N.Y. Feb. 1, 2010)
(quoting Overton, 539 U.S. at 131).
Moreover, even if there were a protected
liberty interest in plaintiff’s contact visits, the
facts alleged in the complaint clearly
demonstrate that defendants were well within
their discretion to restrict plaintiff’s visitation
privileges. “The evaluation of whether or not
[visitation privileges] should be granted to a
prisoner once he is in a facility that has
developed such a program is committed to
the considered judgment of prison
administrators, who are actually charged with
and trained in the running of the particular
institution under examination.” Hernandez v.
Coughlin, 18 F.3d 133, 138 (2d Cir. 1994)
(internal quotations omitted) (citing Olone v.
Estate of Shabazz, 482 U.S. 342, 349 (1987);
Bell v. Wolfish, 441 U.S. 520, 562 (1979)
(“[e]nsuring security and order at the
institution is a permissible nonpunitive
objective” sufficient to justify restrictions on
prisoners)). As the Supreme Court held in
Bell, prison officials have wide latitude “to
take appropriate action to ensure the safety of
inmates and corrections personnel.” 441 U.S.
at 547. Here, by his own admission in the
complaint, plaintiff was involved in at least
two violent altercations with another inmate,
the second of which actually occurred on the
visitation floor. Plaintiff also alleges that his
contact visits were restricted after that second
altercation occurred; the locus of his
complaint against defendants is that the
second altercation only occurred because
defendants negligently precipitated the fight
by bringing Johnson to the visitation floor
when plaintiff was there, despite the
5

Furthermore,
opposition that,
taken away for
allowed “booth

Therefore, the Court finds that plaintiff
has failed to state a plausible claim under
Section 1983, because the alleged injury
caused by defendants does not affect a right,
privilege, or immunity protected by the Due
Process Clause or New York law. The
motion to dismiss is granted in its entirety.
IV. LEAVE TO AMEND
Having concluded that plaintiff has failed
to state a plausible claim under Section 1983,
the Court has considered whether he should
be afforded an opportunity to amend his
complaint. The Second Circuit instructs that
cannot “touch, hold, or kiss” his family when they visit
him. (Pl.’s Opp. at 5.) His ability to visit with family
members, therefore, appears not to have been totally
abridged, only limited.

plaintiff appears to assert in his
even though his contact visits were
some undefined period, he is still
visits” with his family, though he

5

a district court should not dismiss a pro se
complaint “without granting leave to amend
at least once when a liberal reading of the
complaint gives any indication that a valid
claim might be stated.” Cuoco v. Moritsugu,
222 F.3d 99, 112 (2d Cir. 2000) (quotation
omitted). Nevertheless, “[l]eave to amend,
though liberally granted, may properly be
denied for: ‘undue delay, bad faith or dilatory
motive on the part of the movant, repeated
failure to cure deficiencies by amendments
previously allowed, undue prejudice to the
opposing party by virtue of allowance of the
amendment, futility of amendment, etc.’”
Ruotolo v. City of New York , 514 F.3d 184,
191 (2d Cir. 2008) (quoting Foman v. Davis,
371 U.S. 178, 182 (1962)); see also Burch v.
Pioneer Credit Recovery, Inc., 551 F.3d 122,
126 (2d Cir. 2008).

SO ORDERED.

________________________
JOSEPH F. BIANCO
United States District Judge
Dated:

July 8, 2015
Central Islip, NY

***
Plaintiff proceeds pro se. The defendants are
represented by Pablo Fernandez of the
Nassau County Attorney’s Office, One West
Street, Mineola, NY 11501.

Though mindful of the plaintiff’s pro se
status, the Court finds that any attempt to
amend the complaint would be futile. Here,
the deficiencies in plaintiff’s claim are
substantive in nature and, as such, cannot be
remedied by amendment. Accordingly, the
Court declines to grant plaintiff leave to file
an amended complaint.
V. CONCLUSION
For the foregoing reasons, the Court
grants defendants’ motion to dismiss and
dismisses the Section 1983 claim with
prejudice. The Clerk of the Court shall enter
judgment accordingly and close the case. The
Court certifies pursuant to 28 U.S.C. §
1915(a)(3) that any appeal from this
Memorandum and Order would not be taken
in good faith and, therefore, in forma
pauperis status is denied for purpose of an
appeal. See Coppedge v. United States, 369
U.S. 438, 444–45 (1962).

6