Stone et al v. White et al
Filing
41
MEMORANDUM-DECISION and ORDERED, that Defendants Motion (Dkt. No. 32) to dismiss is GRANTED in part and DENIED in part; and it is further ORDERED, that the following claims are dismissed against all Defendants: First Amendment right of free associati on; Watsons equal protection claim based on gender; conspiracy; and sexual harassment under § 1983; and it is further ORDERED, that all claims against DOCCS and Cape Vincent C.F. are dismissed except for Plaintiffs Title VII claim for intentiona l discrimination against DOCCS; and it is further ORDERED, that Plaintiffs equal protection based on race and § 1981 claim for racial discrimination are dismissed except as to Defendants Eamer, Black, and Kirkland; and it is further ORDERED, tha t Plaintiffs retaliation claim under the First Amendment is dismissed except as to Defendants Jones, Martin, Pratt, Knapp, McAuliffe, and Graves; and it is further ORDERED, that Plaintiffs due process claim is dismissed except as to Defendant Jones; and it is further ORDERED, that Fischer, White, Mustizer, Grant, and Miller, as well as John and Jane Doe Defendants are dismissed as Defendants in this action. Signed by Senior Judge Lawrence E. Kahn on March 31, 2016. (sas)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ANTHONY STONE, et al.,
Plaintiffs,
-against-
7:15-cv-0097 (LEK/ATB)
OFFICER JASON WHITE, et al.,
Defendants.
MEMORANDUM-DECISION and ORDER
I.
INTRODUCTION
Plaintiffs Anthony Stone (“Stone”) and Jaclyn Watson (“Watson”) (collectively “Plaintiffs”)
filed this civil rights action alleging that Defendants1 violated their rights under the First and
Fourteenth Amendments based on their status as an interracial couple while Stone was incarcerated
at Cape Vincent Correctional Facility (“Cape Vincent C.F.”). Dkt. Nos. 1 (“Complaint”); 4
(“Amended Complaint”). Presently before the Court is Defendants’ Motion to dismiss the
Amended Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure
12(b)(6). Dkt Nos. 32 (“Motion”); 32-1 (“Memorandum”). Plaintiffs filed a Response in
Opposition and Defendants filed a Reply. Dkt. Nos. 35 (“Response”); 40 (“Reply”). For the
following reasons, Defendants’ Motion is granted in part and denied in part.
1
Plaintiffs have named as Defendants the New York State Department of Corrections and
Community Supervision (“DOCCS”), former DOCCS Commissioner Brian Fischer, Cape Vincent
Correctional Facility (“Cape Vincent C.F.”), Officer Jason White, Officer Eamer, Officer Martin,
Officer Black, Sergeant Ernest Mustizer, Captain Jeremy Knapp, Deputy Superintendent Brian
McAuliffe, Sergeant Matthew Grant, Officer Norman Kirkland, Officer Pratt, Marc Miller,
Lieutenant Robynn Graves, Lieutenant Norman Jones, and John Doe(s) and Jane Doe(s).
II.
BACKGROUND2
Stone is an African-American male who was incarcerated at Cape Vincent C.F. beginning on
January 26, 2012. Am. Compl. ¶¶ 6, 24. Watson is a white female and the fiancée of Stone. Id.
¶ 7. Watson visited Stone at Cape Vincent weekly and Plaintiffs allege that on or about January 28,
2012, they were harassed and mistreated by Defendants on account of their status as an interracial
couple. Id. ¶¶ 25-26.
A. Discrimination Against Watson
Plaintiffs allege that on several instances, Stone was called a “n***er” by Defendants and
Watson was called a “n***er lover.” Id. ¶ 28. On one occasion, an officer asked Watson, “[y]ou
can have anyone you want. Why be with someone who’s ghetto?” Id. ¶ 29. Watson also alleges
that she was regularly subjected to invasive searches of her person while individuals who were not
in interracial relationships were not placed under such scrutiny. Id. ¶ 39. Watson was frequently
selected by the officers to receive drug screenings, a practice that only began after she complained to
the Superintendent and the Department of Corrections in Albany. Id.
After a search, Watson was told to hold her bra and was not allowed to put it back on despite
her repeated requests. Id. ¶ 40. An officer suggested that he would “like to help her with that” and
put Watson’s bra on for her. Id. Defendant Mustizer entered the room and asked why Watson was
holding her bra; he allowed Watson to put her bra back on but did not reprimand the officers
2
Because this matter is before the Court on a motion to dismiss, the allegations of the
Complaint are accepted as true and form the basis of this section. See Boyd v. Nationwide Mut. Ins.
Co., 208 F.3d 406, 408 (2d Cir. 2000); see also Matson v. Bd. of Educ., 631 F.3d 57, 72 (2d Cir.
2011) (noting that, in addressing a motion to dismiss, a court must view a plaintiff’s factual
allegations “in a light most favorable to the plaintiff and draw[] all reasonable inferences in her
favor”).
2
responsible. Id. When Watson complained about the incident, she was told “[s]tay with your own
kind, and this wouldn’t happen.” Id. ¶ 41.
On another occasion, Defendant White told Watson “pull your dress up over your stomach
and chest. Pull your dress up or I’m ending your visit.” Id. ¶ 31. Plaintiff contends that she could
not do that, because her dress was short enough that pulling it up would reveal her thighs. Id. Soon
after, Defendant Grant arrived and Watson asked to speak to him about the incident with Defendant
White. Id. Defendant Grant stated that Watson “was a beautiful woman with a nice body,” and that
because of Watson’s “curves,” she was going to have “these problems with these officers” because
they “do not like that [she] deals with a black guy.” Id.
B. Discrimination Against Watson and Stone as an Interracial Couple
Visitors and inmates at Cape Vincent C.F. are allowed to have their pictures taken if they
purchase a token, which can be redeemed for one picture. Id. ¶ 33. Plaintiffs purchased a token, but
Defendant Kirkland refused to allow them to take a picture and told them, in reference to the token,
“I should make you f***ing eat it.” Id. ¶ 33.
Plaintiffs allege that they were frequently treated differently than non-interracial couples.
While non-interracial couples were allowed to kiss and hug during their visitation periods, Plaintiffs
were told that they were allowed to kiss and hug once at the beginning of the visitation and once at
the end. Id. ¶ 30. On another occasion, Defendant Eamer saw Watson with her hand on Stone’s
arm during a visit. Id. ¶ 32. He told Plaintiffs “[o]n my watch, you don’t touch her.” Id.
Meanwhile, non inter-racial couples were embracing and kissing during their visitations. Id.
In the visitors area, there is a red line that inmates are not allowed to cross; however, a
microwave is located on the forbidden side of the red line and inmates are regularly permitted to use
3
it. Id. ¶ 34. Defendant Black told Plaintiffs they could not use the microwave because it was over
the line. Id. Meanwhile, a non-interracial couple was kissing while standing on the other side of the
red line. Id. Stone approached Defendant Black for clarification, and he responded “[d]on’t talk to
me. I said stay behind the red line.” Id. ¶ 35. Stone then approached another officer for
clarification, at which point Defendant Black told Stone “[h]ey f***er. Yeah you f***er. Come
over here. Why you talking [to the other officer]? Just like your kind, daddy tells you one thing,
you gotta run to mommy. I could send you to Canada, then see how you can see her then.” Id. ¶ 36.
Defendant Black later told Stone that he was going to “fix” him. Id. ¶ 37.
On another occasion, Defendant Black told Plaintiffs to sit at a table where there was a cloud
of gnats flying around some food. Id. ¶ 38. When Watson asked to be moved to a different table,
Defendant Black stated “where I sit you is where I sit you. If you don’t like it, don’t come here.
File a grievance, see how far that gets you.” Id.
C. Search of Stone’s Cube
On October 28, 2012, Plaintiffs each wrote letters to the Commissioner of the Department of
Corrections and Community Supervision (“DOCCS”) complaining of harassment and mistreatment.
Id. ¶ 42. In November 2012, Stone alleges that he was denied medical care and ended up fainting.
Id. ¶ 43. Plaintiffs complained to Cape Vincent C.F., and soon after, a cube search was conducted
on Stone. Id. During the search, several personal items that were not contraband were removed
from Stone’s cube and never returned. Id. When Stone asked why these items were removed, the
searching officer informed him that she was instructed to remove them by her superiors. Id.
Plaintiffs again sent letters complaining of their treatment at the hands of Defendants to the
Commissioner of DOCCS and to Dr. Carl Koenigsmann, Deputy Commissioner and Chief Medical
4
Officer. Id. ¶ 44. Watson also faxed a letter to the Inspector General’s office on November 21,
2012. Id. On December 20, 2012, Stone received a letter informing him that Cape Vincent C.F. had
been notified of his complaint. Id. ¶ 45.
On December 11, 2012, Defendant Jones interviewed Stone regarding the letter he sent on
November 21, 2012. Id. ¶ 46. Stone informed Jones that he was fearful of retaliation, and
Defendant Jones assured him that there would be no retaliation. Id. Defendant Jones informed
Stone that the conversation was being recorded and Stone observed Jones push “record” on the
audio recorder. Id. Stone discussed “all matters of harassment” with Defendant Jones and later
discussed the details of the meeting during a phone call with Watson, which was also recorded. Id.
At approximately 6:00 pm on December 11, Stone’s cube was searched by Defendant
Officers Pratt and Martin. Id. ¶ 47. During the search, Stone observed Defendant Martin take an
object out of his pocket and drop it to the floor. Id. ¶ 48. Defendant Martin then claimed that the
object had fallen from one of Stone’s possessions and revealed that it was a packet of drugs. Id.
¶¶ 48-49. Other inmates witnessed Defendant Martin plant the drugs and one inmate relayed the
information to his wife, who contacted Watson. Id. ¶ 50. Plaintiffs allege that this inmate was
disciplined shortly thereafter. Id.
Watson contacted Defendants Knapp and McAuliffe and asked them to review the recording
of Stone’s conversation with Defendant Jones. Id. ¶ 51. She also asked them to interview the
inmates who witnessed the search of Stone’s cell, but did not receive a response. Id. Watson was
later asked to take books from Stone’s cube. Id. ¶ 52. When she went to retrieve them, she was
confronted by Defendant Graves, who stated “I don’t do well with visitors who accuse my officers
who work with great integrity of doing things that they don’t do and I do not deal well with inmates
5
who lie on my officers and say that they did things that they did not do. They will be dealt with
accordingly.” Id. Watson perceived Defendant Graves to be “very threatening and hostile” toward
her during this conversation. Id.
As a result of the cube search, Stone was charged with a Tier III charge. Id. ¶ 53. A hearing
was held in response to the charge, but Stone was not permitted to call witnesses or present evidence
to support his defense that the drugs had been planted in his cell. Id. Stone requested that
Defendant Jones produce the recording of their previous conversation, but Defendant Jones denied
that any such recording existed. Id. Stone was then placed in the special housing unit (“SHU”) for
ninety one days. Id. ¶ 54. He was not allowed to have any visitors, access to a phone, receive
packages, and it was recommended that he lose his good time credits. Id. Stone was required to
take an alcohol and substance abuse training program (“ASAT”) and his placement in SHU also
prevented him from completing his bachelor’s degree program. Id. Watson alleges that she was not
permitted to visit Stone while he was in SHU and that she later learned there was no legal basis or
justification to deny her access to her fiancé. Id. ¶ 55. Plaintiffs contend that they continued to open
grievances against Cape Vincent C.F. and mail and fax letters to the DOCCS Commissioner’s office
and the Inspector General’s office, but they never received responses. Id. ¶ 56.
On March 12, 2013, Stone was released from SHU and transferred to a medium security
facility outside of Watertown. Id. ¶ 57. On May 21, 2014, the Inspector General’s office removed
Stone from ASAT and restored his loss of good time, which allowed Stone to be released on July 2,
2014. Id. ¶ 59.
As a result of Defendants’ actions, Plaintiffs allege that they suffer from numerous physical
and psychological ailments, including severe emotional distress and anxiety, sleeplessness,
6
headaches, and stomach aches. Id. ¶ 60. Plaintiffs also have incurred reputational damage,
humiliation, indignity, and shame. Id. Plaintiffs assert the following causes of action: (1) race
discrimination on behalf of Stone and Watson in violation of 42 U.S.C. §§ 1981, 1983, and the
Fourteenth Amendment; (2) gender discrimination on behalf of Watson in violation of 42 U.S.C.
§ 1983 and the Fourteenth Amendment; (3) retaliation in violation of 42 U.S.C. §§ 1981 and 1983
and the First Amendment on behalf of both Plaintiffs; (4) sexual harassment on behalf of Watson in
violation of 42 U.S.C. § 1983; (5) violation of Stone’s due process rights pursuant to 42 U.S.C.
§ 1983 and the Fourteenth Amendment; (6) conspiracy to deprive Plaintiffs of their constitutional
rights and to retaliate against them for engaging in their constitutional rights pursuant to 42 U.S.C.
§ 1983; (7) violation of Plaintiffs’ rights under Article I of the New York State Constitution; and (8)
violation of Plaintiffs’ rights under Title VII of the Civil Rights Act of 1964. See Am. Compl.
III.
LEGAL STANDARD
To survive a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also FED. R. CIV. P. 12(b)(6). A court must
accept as true the factual allegations contained in a complaint and draw all inferences in favor of a
plaintiff. See Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d Cir. 2006). A complaint may be
dismissed pursuant to Rule 12(b)(6) only where it appears that there are not “enough facts to state a
claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. Plausibility requires
“enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the alleged
misconduct].” Id. at 556. The plausibility standard “asks for more than a sheer possibility that a
7
defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “[T]he
pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands
more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (citing Twombly,
550 U.S. at 555). Where a court is unable to infer more than the mere possibility of the alleged
misconduct based on the pleaded facts, the pleader has not demonstrated that she is entitled to relief
and the action is subject to dismissal. See id. at 678-79.
IV.
DISCUSSION
As a preliminary matter, the Court notes that the Amended Complaint does not specify
which claims apply to which Defendants. Accordingly, the Court has interpreted the allegations in
the Complaint in the light more favorable to Plaintiffs and evaluated the claims asserted against all
Defendants.
A. Sovereign Immunity
The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not
be construed to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.
CONST. amend. XI. “The ultimate guarantee of the Eleventh Amendment is that nonconsenting
States may not be sued by private individuals in federal court.” Bd. of Trs. of Univ. of Ala. v.
Garrett, 531 U.S. 356, 363 (2001). The Supreme Court has held that the Eleventh Amendment also
bars suits against a state brought by its own citizens. Hans v. Louisiana, 134 U.S. 1 (1890). “The
Eleventh Amendment bar to suit in federal courts extends not only to the state itself but also to any
entity that is deemed to be an arm of the State.” Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274, 280 (1977); see also Pennhurst State Sch. & Hosp., 465 U.S. at 100 (“It is clear, of
8
course, that in the absence of consent a suit in which the State or one of its agencies or departments
is named as the defendant is proscribed by the Eleventh Amendment.”).
Eleventh Amendment immunity is not absolute: a state “may consent to suit in federal court
and, in certain cases, Congress may abrogate the States’ sovereign immunity.” Port Auth. TransHudson Corp. v. Feeney, 495 U.S. 299, 304 (1990). It is well established that § 1983 does not
abrogate a state’s Eleventh Amendment immunity without its consent. Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 67 (1989); Komlosi v. N.Y. State Office of Mental Retardation &
Developmental Disabilities, 64 F.3d 810, 815 (2d Cir. 1995). It is equally well established that New
York state has not waived its right to sovereign immunity for actions brought under § 1983.
Goonewardena v. New York, 475 F. Supp. 2d 310, 329 (S.D.N.Y. 2007). Similarly, New York
State has not waived its sovereign immunity for actions brought under § 1981, nor has Congress
abrogated states’ immunity for such actions. Jackson v. Battaglia, 63 F. Supp. 3d 214, 220
(N.D.N.Y. 2014). Accordingly, Plaintiffs’ § 1981 and § 1983 claims against DOCCS and Cape
Vincent C.F. are barred under the Eleventh Amendment.
To the extent a state official is sued for damages in his or her official capacity, “such a suit is
deemed to be a suit against the state, and the official is entitled to invoke the Eleventh Amendment
immunity belonging to the state.” Rourke v. N. Y. State Dep’t of Corr. Servs., 915 F. Supp. 525,
539 (N.D.N.Y. 1995); see also Mathie v. Fries, 121 F.3d 808, 818 (2d Cir. 1997) (“A claim against
a government officer in his official capacity is, and should be treated as, a claim against the entity
that employs the officer . . . .”).
Plaintiffs’ claims for damages against the individual Defendants in their official capacities
are barred under the Eleventh Amendment. However, under Ex parte Young, 209 U.S. 123 (1908),
9
“acts of state officials that violate federal constitutional rights are deemed not to be acts of the state
and may be subject of injunctive or declaratory relief in federal court.” Berman Enters., Inc. v.
Jorling, 3 F.3d 602, 606 (2d Cir. 1993). Accordingly, Plaintiffs’ claims for injunctive relief against
the individual Defendants may proceed under the theory of Ex Parte Young.
B. 42 U.S.C. § 1981
Under 42 U.S.C. § 1981, “[a[ll persons within the jurisdiction of the United States shall have
the same right in every State and Territory to make and enforce contracts, to sue, be parties, give
evidence, and to the full and equal benefit of all laws and proceedings for the security of persons
and property as is enjoyed by white citizens . . . .” 42 U.S.C. § 1981. In order to state a claim under
§ 1981, a plaintiff must allege the following: (1) that he or she is a member of a racial minority; (2)
that the defendant intended to discriminate the plaintiff on the basis of race; (3) that the
discrimination concerned one or more of the activities enumerated in § 1981. Broich v. Inc. Vill. of
Southampton, 462 F. App’x 39, 42 (2d Cir. 2012). To establish the second element of a § 1981
claim, a plaintiff’s claim must meet “the same burden-shifting analysis as intentional discrimination
claims brought under Title VII of the Civil Rights Act of 1964” as set out in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Broich, 462 F. App’x at 42.
1. Watson
Defendant argues that Watson’s § 1981 claim must fail because she is not a member of a
racial minority group and therefore not entitled to the protections of § 1981. Mem. at 8.3 Under
§ 1981, a plaintiff does not have to be a member of a racial minority to bring a claim; rather, a nonminority plaintiff can allege personal injury stemming from a defendant’s discriminatory conduct
3
Citations to the parties’ briefs refer to the pagination used by the parties.
10
against a racial minority. See Robledo v. Bond No. 9, 965 F. Supp. 2d 470, 476 (S.D.N.Y. 2013)
(denying motion to dismiss where a white plaintiff alleged that she protested defendant’s verbal
abuse against a racial minority); see also Rosenblatt v. Bivone & Cohen, P.C., 946 F. Supp. 298,
301 (S.D.N.Y. 1996) (finding that white plaintiff had standing under § 1981 where he alleges that he
had been discriminated against on account of his marriage to a black woman). In the present case,
Watson alleges that she protested Defendants’ discrimination against Stone, a black man, and
Defendants’ discrimination of Stone and Watson as an interracial couple. “It is well-settled that a
claim of discrimination based on an interracial relationship or association is cognizable under
Section 1981.” Rosenblatt, 946 F. Supp. at 301. Accordingly, Defendants’ argument that Watson
lacks standing under § 1981 is without merit.4
2. Stone
Defendants argue that Stone has failed to state a prima facie case under § 1981 because he
fails to allege that Defendants have deprived him of the right to make and enforce contracts or that
Defendants have denied him the equal benefit of a law for the security of persons or property
(“equal benefit clause”). Mem. at 8-9. Plaintiffs concede that they do not seek to enforce their
rights to make or enforce contracts but argue that their § 1981 claims can proceed under the equal
benefit clause. Resp. at 9-11.
Under the equal benefit clause, a violation of § 1981 may be found when a “private
individual injures ‘the security of persons and property’ in violation of a state law, and does so with
a racially discriminatory purpose.” Wong v. Mangone, 450 F. App’x 27, 30 (2d Cir. 2011) (finding
4
The scope of Watson’s § 1981 claim will be further narrowed, consistent with the Court’s
discussion of Stone’s § 1981 claim, discussed infra.
11
that plaintiff produced enough evidence for a reasonable fact-finder to find that defendant violated
New York State laws prohibiting assault and battery, which are clearly intended to protect the
security of persons and property); see also Martin v. J.C. Penney Corp., 28 F. Supp. 3d 153, 157
(E.D.N.Y. 2014) (finding that allegations of assault, battery, and false imprisonment fell “within the
ambit of ‘laws or proceedings for the security of persons and property’ protected by 1981’s equal
benefit clause”). In Tchatat v. City of New York, the court granted plaintiff’s motion for
reconsideration, finding that plaintiff pleaded a colorable claim under § 1981 where the plaintiff
alleged that defendants conspired to violate his “right to equal protection of the laws because of his
race.” No. 14 Civ. 2385, 2015 WL 6159320, at *2-3 (S.D.N.Y. Oct. 30, 2015). Similar to Tchatat,
Stone’s equal protection claim may serve as the basis for his § 1981 claim under the equal benefit
clause. Accordingly, the Court finds that Stone’s § 1981 claim may proceed to the extent that he has
stated a valid equal protection claim, discussed infra.
C. 42 U.S.C. § 1983 Claims
42 U.S.C. § 1983 provides “a private right of action against any person who, acting under
the color of state law, causes another person to be subjected to the deprivation” of a right, privilege,
or immunity secured by the Constitution or laws of the United States. Blyden v. Mancusi, 186 F.3d
252, 264 (2d Cir. 1999). “Section 1983 itself creates no substantive rights, [but] only a procedure
for redress for the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519
(2d Cir. 1993).
A valid claim under § 1983 requires a showing of personal involvement by the defendant in
the alleged constitutional deprivation. Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). In § 1983
actions, the doctrine of respondeat superior is unavailable. Polk County v. Dodson, 454 U.S. 312,
12
325 (1981). In the Amended Complaint, Plaintiffs make no factual allegations against Defendant
Marc Miller and therefore they fail to show that Defendant Miller was personally involved in any
alleged constitutional deprivation. Accordingly, all claims against Defendant Miller are dismissed.
1. First Amendment Right of Free Association
The Supreme Court has determined that a prisoner “retains those First Amendment rights
that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of
the corrections system.” Pell v. Procunier, 417 U.S. 817, 822 (1974). “An inmate does not retain
rights inconsistent with proper incarceration,” and freedom of association “is among the rights least
compatible with incarceration.” Overton v. Bazzetta, 539 U.S. 126, 131 (2003). “The [Supreme]
Court has counseled judicial restraint in the federal courts’ review of prison policy and
administration, noting that ‘courts are ill equipped to deal with the increasingly urgent problems of
prison administration and reform.’” Giano v. Senkowski, 54 F.3d 1050, 1053 (2d Cir. 1995)
(quoting Turner v. Safley, 482 U.S. 78, 84 (1987)). “[T]his deferential standard applies
notwithstanding that this case implicates the rights of non-inmates as well as those of a prisoner.”
Hernandez v. McGinnis, 272 F. Supp. 2d 223, 226 (W.D.N.Y. 2003).
Prison officials are entitled to impose measures reasonably calculated to preserve the safety
and security of a prison facility and its employees and inmates, even though such measures may
impinge upon an inmate’s ability to speak freely or to associate with others. See Auleta v.
LaFrance, 233 F. Supp. 2d 396, 399 (N.D.N.Y. 2002) (Kahn, J.) (noting that restrictions on inmate
communication are constitutional if reasonably related to legitimate penological interests).
However, “prison officials may not deter the right of a prison inmate to voice complaints regarding
prison conditions through established processes by taking adverse actions which are intended, or
13
which have the affect, of chilling or abridging such rights.” Esclara v. Charwand, No. 04-CV-0983,
2008 WL 699273, at *6 (N.D.N.Y. Mar. 12, 2008).
Plaintiffs do not specifically identify which factual allegations support their free association
claim, instead grouping their free association claim with their equal protection claim. Although
Plaintiffs mention specific prison regulations such as not allowing inmates to cross the red line to
access the microwave, or restrictions on when inmates and visitors are allowed to embrace during a
visit, Plaintiffs seem to challenge the way in which these regulations were applied to them, rather
than the validity of those regulations themselves. Therefore, Plaintiffs’ claims are more
appropriately addressed under the Equal Protection Clause, discussed infra, rather than the First
Amendment.
In their Opposition, Plaintiffs cite Stone’s placement in SHU as an example of how
Defendants deprived Plaintiffs of their right to freely associate. Am. Compl. ¶ 55. Plaintiffs allege
that while Stone was placed in SHU, Watson was informed that she was not allowed to visit him.
Id. It is well established that prison visitation is a privilege, and not a right, and that limiting
visitation temporarily in response to a disciplinary action is appropriate. Midalao v. Bass, No. 03CV-1128, 2006 WL 2795332, at *16-17 (N.D.N.Y. Sept. 26, 2006) (finding that family visitations
for inmates only constitute a privilege and not a right); Hernandez, 272 F. Supp.2d at 227 (finding
three-year revocation of inmate’s visitation privileges following disciplinary hearing did not violate
First Amendment). Accordingly, the Court finds Plaintiffs’ allegation that Watson was informed
she could not visit Stone during his temporary placement in SHU insufficient to state a claim under
the First Amendment; therefore, Plaintiffs’ First Amendment freedom of association claim is
dismissed.
14
2. Fourteenth Amendment Right to Equal Protection–Interracial Couple
The Equal Protection Clause “essentially mandates that all similarly situated persons be
treated alike.” Myers v. Barrett, No. 95-CV-1534, 1997 WL 151770, at *3 (N.D.N.Y. Mar. 28,
1997). The Equal Protection Clause prohibits the unequal enforcement of even valid laws where the
enforcement results from an improper motive. Yick Wo v. Hopkins, 118 U.S. 356 (1886). In order
to establish an equal protection violation, Plaintiffs must show that they were treated differently than
other similarly situated individuals and that such unequal treatment was the result of intentional and
purposeful discrimination. Myers, 1997 WL 151770, at *3.
Plaintiffs claim that they were treated differently than other couples at Cape Vincent C.F. on
account of their interracial status. Am. Compl. ¶¶ 25-26. Defendants argue that Myers is
dispositive of Plaintiffs’ claims. Mem. at 12-13; Myers, 1997 WL 151770, at *3-4. In Myers, the
court dismissed the plaintiffs’ claim that defendants deprived them of equal protection during
visitation at a prison based on their status as an interracial couple. Myers, 1997 WL 151770, at *34. There, the court found that the plaintiffs failed to cite any instances where other couples in their
situation were treated differently. Id. at *4. Additionally, the court found that the plaintiffs failed to
allege sufficient personal involvement of the individual defendants. Id.
Unlike the plaintiffs in Myers, the Court finds that Plaintiffs have stated numerous instances
in which they were treated differently than other non-interracial couples during visitations at Cape
Vincent C.F. Watson alleges that she was regularly subjected to invasive bodily searches that
individuals who were not in interracial relationships were not subjected to. Am. Compl. ¶ 39.
Additionally, Plaintiffs allege that visitors and inmates at Cape Vincent C.F. are allowed to have
their pictures taken if they purchase a token, but Defendant Kirkland refused to allow Plaintiffs to
15
take their picture after they had purchased a token. Id. ¶ 33. Plaintiffs claim that non-interracial
couples were allowed to kiss and hug throughout their visitations, but Plaintiffs were only allowed
to kiss and hug once at the beginning and once at the end of their visits. Id. ¶ 30. When Defendant
Eamer saw Watson with her hand on Stone’s arm he told her that she was not allowed to touch him
“on [his] watch.” Id. ¶ 32. Plaintiffs also allege that Defendant Black refused to allow them to use
a microwave that was across a line that inmates were not allowed to cross, even though other people
were routinely allowed to cross the line to use the microwave. Id. ¶ 34. Plaintiffs allege that at the
same time they were told that they could not use the microwave, a non-interracial couple was
standing on the other side of the line kissing. Id. When Plaintiffs complained about this, Defendant
Black responded by making a comment about Stone’s “kind” and threatened to send him to Canada.
Id. ¶¶ 35-37. The Court finds that these allegations are sufficient to allege that Plaintiffs were
treated differently than other similarly situated individuals and that such unequal treatment was the
result of intentional and purposeful discrimination by Defendants based on Plaintiffs’ status as an
interracial couple.
While Defendants are correct that verbal harassment and racially derogatory remarks,
without more, are not actionable under § 1983, Mem. at 11, the Court finds that the aforementioned
incidents involve not only verbal harassment, but also the deprivation of access to privileges that
Plaintiffs allege were available to non-interracial couples. See Johnson v. Eggersdorf, 8 F. App’x
140, 143 (2d Cir. 2001) (finding allegations of verbal harassment alone are not actionable under
§ 1983); see also King v. City of Eastpointe, 86 F. App’x 790, 814 (6th Cir. 2003) (“The use of
racially discriminatory language can provide some evidence of a discriminatory purpose when that
language is coupled with some additional harassment or constitutional violation.”).
16
Since Plaintiffs generally assert their equal protection claim against all Defendants, the Court
must determine which Defendants were “personally involved” in the conduct giving rise to
Plaintiffs’ equal protection claim. Wright, 21 F.3d at 501. Defendants Black, Eamer, and Kirkland
are the only Defendants specifically mentioned in the allegations giving rise to Plaintiff’s equal
protection claim. Accordingly, Plaintiffs’ equal protection claim against all Defendants other than
Black, Eamer, and Kirkland are dismissed for failure to allege personal involvement.5
3. Fourteenth Amendment Right to Equal Protection–Gender
Watson alleges that she was denied equal protection by Defendants based on her gender.
Opp’n at 15. Defendants argue that Watson’s claims resound in race discrimination, and that
“[n]owhere does she claim she was denied visits, or to hug and kiss Stone during visits, because she
is female.” Mem. at 13. To make out a claim for gender discrimination under the Equal Protection
Clause, a plaintiff must allege that she suffered purposeful or intentional discrimination on the basis
of gender. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-65 (1977).
When evaluating a discrimination claim based on a particular characteristic, the “sine qua non” of a
discrimination claim is that “the discrimination must be because of [a protected characteristic].”
Patane v. Clark, 508 F. 3d 106, 112 (2d Cir. 2007); see also Acosta v. City of New York, No. 11
Civ. 856, 2015 WL 1506954, at *4 (S.D.N.Y. Apr. 26, 2012) (“[T]he sine qua non of a race-based
discrimination or retaliation claim is that discrimination or retaliation was because of race”). It
follows that the sine qua non for a gender-based equal protection claim is that the discrimination
must be because of the plaintiff’s gender.
5
Since Stone’s § 1981 claim is predicated on his equal protection claim, Stone’s § 1981
claim against all Defendants other than Black, Eamer, and Kirkland is dismissed for failure to allege
personal involvement. The same reasoning applies to Watson’s § 1981 claim.
17
Watson alleges that after a search of her person, she was told to hold her bra and was not
allowed to put it back on, despite her protests. Am. Compl. ¶ 40. An unnamed officer said he
would “like to help her with that” and offered to put Watson’s bra on for her. Id. While this
conduct could possibly give rise to an equal protection claim based on gender, Watson fails to allege
the personal involvement of any Defendant. Should Watson obtain the identities of the persons
responsible for this conduct, she is instructed to amend the Amended Complaint. Therefore, this
claim is dismissed without prejudice.
On another occasion, Watson alleges that Defendant White threatened to end her visit if she
did not pull her dress up to cover her stomach and chest. Id. ¶ 31. The Court finds this allegation
insufficient to state a claim against Defendant White, as it appears that Defendant White was simply
attempting to enforce the dress code for prison visitors, rather than harassing Watson based on her
gender. Accordingly, Watson’s equal protection claim based on gender against Defendant White is
dismissed.
When Watson complained about her interaction with Defendant White to Defendant Grant,
he told Watson she “was a beautiful woman with a nice body” and that because of her “curves,” she
was going to have “these problems with these officers” because they “do not like that [she] deals
with a black guy.” Id. ¶ 31. While these allegations may overlap with Plaintiffs’ claims for racial
discrimination based on their status as an interracial couple, the Court is aware of no case law that
supports Defendants’ argument that a plaintiff forgoes the right to bring a gender discrimination
claim because the same underlying conduct also forms the basis of a racial discrimination claim.
However, the Court finds that Defendant Grant’s comments to Plaintiff amount to nothing more
than verbal harassment, which is not actionable under § 1983. See Johnson, 8 F. App’x at 143.
18
Watson’s allegation that Defendant Mustizer did not reprimand or remove the officers
responsible for refusing to allow her to put her bra back on is insufficient to sustain an equal
protection claim based on gender. Am. Compl. ¶ 41. After Plaintiff explained what happened,
Defendant Mustizer allowed her to put her bra back on. Id.
4. Retaliation Claims
Courts are instructed to approach claims of retaliation “‘with skepticism and particular care’
because ‘virtually any adverse action taken against a prisoner by a prison official—even those
otherwise not rising to the level of a constitutional violation—can be characterized as a
constitutionally proscribed retaliatory act.’” Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003)
(quoting Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 1001)), overruled on other grounds by
Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). In order to state a claim for First Amendment
retaliation, a plaintiff must allege the following: “(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.” Id. at 352. At the motion
to dismiss stage, a “complaint which alleges retaliation in wholly conclusory terms may safely be
dismissed on the pleadings alone.” Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983).
Plaintiffs allege that they were retaliated against for making grievances about alleged racial
and discrimination when Defendant Martin planted drugs in Stone’s cube and subsequently searched
the cube, in violation of the First Amendment. Am. Compl. ¶¶ 48-49, 68. Since the filing of prison
grievances is a constitutionally protected activity, Plaintiffs have stated the first prong of a First
amendment retaliation claim. Franco v. Kelly, 854 F.2d 584, 590 (2d Cir. 1988) (filing a prison
grievance is a constitutionally protected activity).
19
To satisfy the second element, Plaintiffs must allege that Defendants took adverse action
against them because they filed grievances. The Second Circuit defines “adverse action” as
“retaliatory conduct ‘that would deter a similarly situated individual of ordinary firmness from
exercising . . . constitutional rights.’” Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir. 2004).
Inmates may be required to tolerate more than average citizens before a retaliatory action taken
against them is considered adverse. Dawes, 239 F. 3d at 491. If a retaliatory act against an inmate
would not be likely to “chill a person of ordinary firmness from continuing to engage” in the
protected activity, the retaliatory act does not rise to the level of warranting constitutional
protection. Id. at 493.
In the present case, Plaintiffs allege that Defendants retaliated against them by planting drugs
in Stone’s cube and subsequently searching the cube. Am. Compl. ¶¶ 48-49. This is a very serious
accusation, which taken as true, would certainly have a chilling effect on similarly situated inmates
exercising their First Amendment rights. As a result of drugs being found in his cube, Stone was
subject to a disciplinary hearing and placed in SHU. The Court finds this sufficient to satisfy the
second element of a First Amendment retaliation claim.
Turning to the third element, Plaintiffs must show that “the protected conduct was a
‘substantial or motivating factor’ in the prison officials’ decision to take action against the plaintiff.”
Ciaprazi v. Goord, No. Civ. 02CV00915, 2005 WL 3531461, at *6 (N.D.N.Y. Dec. 22, 2005).
When evaluating whether a causal connection exists, a court may consider “(1) the temporal
proximity between the protected activity and the alleged retaliatory act; (2) the inmate’s prior good
disciplinary record; (3) vindication at a hearing on the matter; and (4) statements by the defendant
concerning his motivation.” Vega v. Artus, 610 F. Supp. 2d 185, 207 (N.D.N.Y. 2009) (quoting
20
Holmes v. Grant, No. 03 Civ. 3426, 2006 WL 851753, at *15 (S.D.N.Y. Mar. 31, 2006)).
The Court finds that Plaintiffs have met their burden of pleading a causal connection
between their protected activity and the allegedly retaliatory act by Defendants. First, the Court
notes the temporal proximity between Stone’s meeting with Jones on December 11, during which he
claims he expressed concerns that he would be retaliated against because of his grievances, and the
search of Plaintiff’s cube that was executed at 6:00 pm the same day. Am. Compl. ¶¶ 46-47. Stone
contends that he and other inmates observed Defendant Martin take an object out of his pocket and
drop it to the floor, and then claim that the packet fell from Stone’s personal belongings. Id. ¶¶ 4849. Defendant Martin then claimed that the object had fallen from one of Stone’s possessions and
revealed that it was a packet of drugs. Id. An inmate who corroborated Stone’s account of events
was allegedly disciplined as a result. Id. ¶ 50.
Turning to the second factor, the Court finds nothing in the record to suggest that Stone had
a disfavorable behavioral record while incarcerated at Cape Vincent C.F. Furthermore, the Court
notes that at the time of the alleged retaliatory acts, prison officials were generally aware that Stone
and Watson had filed grievances against them. As for the third factor, Stone was not vindicated at
his disciplinary hearing, but alleges instead that the hearing was unfair. Id. ¶ 53. He claims he was
not permitted to call witnesses or to present evidence. Id. Stone requested that Defendant Jones
produce the recording of their previous conversation, but Defendant Jones denied that any such
recording existed. Id. Stone was then placed in SHU for ninety one days. Id. ¶ 54.
In further support of their contention that Defendants acted with retaliatory animus, Plaintiffs
allege that Defendant Jones denied the existence of a recording of his meeting with Stone and that
Defendants never responded to Watson’s request to interview inmates who witnessed the search of
21
Stone’s cube. Id. ¶ 51. When Watson went to the prison to retrieve books from Stone’s cube, she
was allegedly confronted by Defendant Graves, who stated “I don’t do well with visitors who accuse
my officers who work with great integrity of doing things that they don’t do and I do not deal well
with inmates who lie on my officers and say that they did things that they did not do. They will be
dealt with accordingly.” Id. While these statements alone are not necessarily indicative of
retaliatory animus, the Court finds that considering the factors discussed above and the totality of
the circumstances, Plaintiffs have plausibily pleaded that Defendants planted the drugs in Stone’s
cube in retaliation for Plaintiffs’ protected activity. However, Plaintiffs only allege that Defendants
Jones, Martin, Pratt, Knapp, McAuliffe, and Graves were personally involved in the conduct giving
rise to Plaintiffs’ retaliation claim. Accordingly, Plaintiffs’ retaliation claim against only these
Defendants survives Defendants’ Motion to dismiss.
5. Watson’s Claim for Sexual Harassment
Plaintiffs argue that the terms and conditions of Plaintiffs’ visitation were “altered for the
worse” because of sexual harassment by Defendants. Plaintiffs appear to argue that Defendants’
conduct created a “hostile visiting environment” for them at Cape Vincent C.F. The parties have
not identified any cases in which such a claim has been recognized in federal court.
In Hayut v. State Univ. of N.Y., the Second Circuit evaluated whether the plaintiff had
stated a claim for a “hostile education environment” involving alleged sexual harassment by a
professor toward a student. 352 F.3d 733, 746 (2d Cir. 2003). The court stated that § 1983 claims
that are based on a hostile environment theory are governed by Title VII’s hostile environment
jurisprudence. Id. at 744. Therefore, a plaintiff must state that not only did the victim subjectively
perceive the environment to be hostile or abusive, but also that the environment was objectively
22
hostile and abusive. Id. at 745. In other words, the environment created was “permeated with
‘discriminatory intimidation, ridicule, and insult’ . . . that is ‘sufficiently severe or pervasive to alter
the conditions’ of the visiting environment.” Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17,
21 (1993). As the Hayut court articulated, making a “hostility” determination in the educational
context, as in the employment context, entails examining the totality of the circumstances,
including: “the frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it reasonably interferes with”
the victim’s right to visitation. Id. Finding the harassment “pervasive” means that the challenged
incidents are “more than episodic; they must be sufficiently continuous and concerted.” Carrero v.
N.Y.C. Hous. Auth., 890 F.2d 569, 577 (2d Cir. 1989). There must also be evidence that the alleged
discrimination was carried out because of sex. Hayut, 352 F.3d at 745.
Defendants argue that Plaintiffs’ claim for sexual harassment pursuant to § 1983 must fail
because Plaintiffs have not pleaded the personal involvement of any Defendant sufficient to show
that such conduct was “pervasive enough” to state a claim under a hostile environment theory.
Reply at 12-13. Defendants argue that Plaintiffs cannot group the conduct of Defendants in the
aggregate, and must instead state a claim against each Defendant independently. Because DOCCS
and Cape Vincent C.F. cannot be liable under § 1983, the Court finds that Defendants’ argument is
correct and that Plaintiffs have failed to allege the personal involvement of any one Defendant that
is sufficient to show that their sexual harassment created an environment that was permeated with
discriminatory intimidation that was “sufficiently severe or pervasive to alter the conditions” of
Plaintiffs’ visitation. As previously discussed with respect to Watson’s equal protection claim
based on gender, the allegations in the Amended Complaint pertaining to sexual harassment and
23
gender consist of either isolated incidents of verbal harassment or fail to identify the personal
involvement of a particular Defendant. Similarly, the Court finds that Plaintiffs have failed to plead
sufficient allegations to show that the material terms of Plaintiffs’ visitation were altered to sustain a
hostile environment claim based on sexual harassment under § 1983.
6. Stone’s Claim for Denial of Due Process During his Disciplinary Hearing
Stone alleges that the planting of drugs in his cell and subsequent denial of his right to
present evidence and call witnesses at his disciplinary hearing amounts to a denial of due process
rights. Am. Compl. ¶ 75. Defendants argue that Plaintiffs have failed to allege the personal
involvement of any Defendant with respect to Stone’s disciplinary hearing. Reply at 13. While the
Court finds that Plaintiffs have stated enough facts to assert a plausible due process claim against
“the unnamed hearing officer,” due to Plaintiffs’ failure to allege the personal involvement of any
named Defendant, this claim is subject to dismissal, without prejudice. Should Plaintiffs ascertain
the identity of the unnamed hearing officer, they are instructed to file a Second Amended
Complaint.
The Court finds that the only Defendant Plaintiffs identify who was personally involved with
respect to Stone’s due process claim is Defendant Jones, who allegedly denied Stone the recording
that was allegedly created during their meeting. Am. Compl. ¶ 53. Accordingly, Plaintiffs’ due
process claim against Defendant Jones survives Defendants’ Motion to dismiss.
7. Conspiracy
Plaintiffs argue that Defendants were acting in concert and with collaboration and purpose to
deny Plaintiffs their federally protected rights and to retaliate against them for engaging their
constitutional rights. Am. Compl. ¶ 78. Defendants argue that Plaintiffs do not articulate which
24
Defendants were involved in the alleged conspiracy and therefore fail to allege the personal
involvement of any of the alleged Defendants. Reply. at 14. “[W]here the personal involvement of
a defendant in a Section 1983 violation is premised upon a claim of conspiracy, ‘[i]t is incumbent
on a plaintiff to state more than conclusory allegations to avoid dismissal of a claim predicated on a
conspiracy to deprive him of his constitutional rights.’” Vega, 610 F. Supp. 2d at 199 (quoting
Polur v. Raffe, 912 F.2d 52, 56 (2d Cir. 1990)).
The Court finds that Plaintiffs fail to assert any factual allegations to suggest that the
individual Defendants were acting in concert to deprive them of their constitutional rights or to
retaliate against them. Moreover, Plaintiffs’ failure to assert the personal involvement of any
Defendant with respect to their conspiracy claim is also proper grounds for dismissal. Accordingly,
Plaintiffs’ § 1983 conspiracy claim is dismissed.
8. Supervisory Liability
Where a plaintiff asserts a claim against a supervisory official, a mere “linkage” to the
unlawful conduct through “the prison chain of command” (i.e., under the doctrine of respondeat
superior) is insufficient to show his or her personal involvement in that unlawful conduct. See Polk
County v. Dodson, 454 U.S. 312, 325 (1981); Richardson v. Goord, 76 F.3d 431, 435 (2d Cir.
2003). In other words, supervisory officials may not be held liable merely because they held a
position of authority. Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). Rather, supervisory
personally may be considered “personally involved” only if they (1) directly participated in the
alleged constitutional violation, (2) failed to remedy that violation after learning of it through a
report or appeal, (3) created, or allowed to continue, a policy or custom under which the violation
occurred, (4) were grossly negligent in managing subordinates who caused the violation, or (5)
25
exhibited deliberate indifference to the rights of inmates by failing to act on information indicating
that the violation was occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (citing
Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986)).
Although the Amended Complaint does not specifically articulate these claims, it appears
that Plaintiffs attempt to hold Defendant Fischer and Defendant Jones liable for their constitutional
deprivations under the theory of supervisory liability, because they were aware of Plaintiffs’
grievances and did not take appropriate action to remedy them. Am. Compl. ¶¶ 46, 58. However, it
is well settled that the failure of a supervisory official to investigate a letter of protest by an inmate
is not sufficient to show personal involvement. Smart v. Goord, 441 F. Supp. 2d 631, 642-43
(S.D.N.Y. 1006); see also Harnett v. Barr, 538 F. Supp. 2d 511, 524 (N.D.N.Y. 2008) (stating that it
is well established that an allegation that a prison official ignored a prisoner’s letter of protest and
request for an investigation is insufficient to hold that official liable for the alleged violations).
Accordingly, to the extent that Plaintiffs attempt to hold Defendant Fischer and Defendant Jones
liable on a theory of supervisory liability, those claims are subject to dismissal.
D. Title VII
As a preliminary matter, the Court notes that DOCCS and Cape Vincent C.F. are not
immune from suit for claims of intentional discrimination under Title VII. See Alexander v.
Sandoval, 532 U.S. 275, 280-81 (2001). Defendants contend that Plaintiffs have failed to state a
claim for racial discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000d et.
seq.. Mem. at 21. Plaintiffs allege that DOCCS and Cape Vincent C.F. are recipients of federal
funding and have intentionally discriminated and/or have policies, practices, and/or procedures
26
which have the effect of discrimination on the basis of race. Am. Compl. ¶¶ 84-85.6 Plaintiffs do
not identify any specific policies, practices, or procedures on behalf of Defendants to sustain their
Title VII claim. Rather, Plaintiffs’ Amended Complaint focuses on Defendants’ conduct with
respect to Plaintiffs specifically.
The nature of Plaintiffs’ Title VII claim is a bit muddled. In their Opposition, Plaintiffs
clarify that the nature of their Title VII claim is a “private right of action under Title VII for
disparate treatment,” Opp’n at 21, but later state that “the court should disregard any arguments
regarding disparate impact as they are irrelevant,” Opp’n at 22. Plaintiffs contend that their
allegations of racial discrimination is “all that is required to succeed on a Title VII claim.” Id. at 22.
Defendants rely on the Supreme Court’s holding in Alexander v. Sandoval, 532 U.S. 275
(2001) and argue that Plaintiffs must prove that DOCCS intentionally discriminated against them on
the basis of their race in order to sustain a Title VII claim. Mem. at 21-23. In order to state a claim
under Title VII, a plaintiff must show that the defendant discriminated against him on the basis of
race, that the discrimination was intentional, and that the discrimination was a substantial or
motivating factor for the defendant’s actions. Tolbert v. Queens Coll., 242 F.3d 58, 69 (2d Cir.
2001).
The United States Supreme Court established that an entity may be liable for intentional
discrimination when it has been “deliberately indifferent.” Davis ex rel. LaShonda D. v. Monroe
Cty. Bd. of Educ., 526 U.S. 629, 643 (1999) (finding that board of education can be liable for
student-on-student harassment under Title IX). The Second Circuit later extended Davis’ deliberate
6
In their Opposition, Plaintiffs clarify that they only assert a Title VII claim against DOCCS.
Opp’n at 21.
27
indifference standard to the Title VII context. Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655,
664-665 (2d Cir. 2012). Deliberate indifference based on racial discrimination can be shown from a
defendants’ actions or inaction in light of known circumstances. Gant v. Wallingford Bd. of Educ.,
195 F.3d 134, 140-41 (2d Cir. 1999).
In the present case, the Court finds that Plaintiffs have pleaded a prima facie case of
intentional discrimination by DOCCS under Title VII. As previously discussed with respect to
Plaintiffs’ equal protection claim, Plaintiffs have set forth numerous examples of racial
discrimination carried out by the individual Defendants against Plaintiffs. Plaintiffs reported these
instances to supervisory personnel on numerous occasions. Drawing all inferences in Plaintiffs’
favor, it is reasonable to conclude that DOCCS was aware of Plaintiffs’ allegations and failed to
take action. Accordingly, Plaintiffs have stated a claim of intentional discrimination based on their
race against DOCCS based on a deliberate indifference standard.
E. Supplemental Jurisdiction
Having found the several of Plaintiffs’ causes of action survive Defendants’ Motion to
dismiss, the Court finds that it is appropriate to exercise supplemental jurisdiction over Plaintiffs’
state law claim, as these claims arise from the same transaction or occurrence. Treglia v. Town of
Manlius, 313 F.3d 713, 723 (2d Cir. 2002)) (“[E]xercise of supplemental jurisdiction was proper
where plaintiff’s state and federal claims arose ‘out of approximately the same set of events.’”).
III.
CONCLUSION
Accordingly, it is hereby:
ORDERED, that Defendants’ Motion (Dkt. No. 32) to dismiss is GRANTED in part and
DENIED in part; and it is further
28
ORDERED, that the following claims are dismissed against all Defendants: First
Amendment right of free association; Watson’s equal protection claim based on gender; conspiracy;
and sexual harassment under § 1983; and it is further
ORDERED, that all claims against DOCCS and Cape Vincent C.F. are dismissed except for
Plaintiffs’ Title VII claim for intentional discrimination against DOCCS; and it is further
ORDERED, that Plaintiffs’ equal protection based on race and § 1981 claim for racial
discrimination are dismissed except as to Defendants Eamer, Black, and Kirkland; and it is further
ORDERED, that Plaintiffs’ retaliation claim under the First Amendment is dismissed
except as to Defendants Jones, Martin, Pratt, Knapp, McAuliffe, and Graves; and it is further
ORDERED, that Plaintiffs’ due process claim is dismissed except as to Defendant Jones;
and it is further
ORDERED, that Fischer, White, Mustizer, Grant, and Miller, as well as John and Jane Doe
Defendants are dismissed as Defendants in this action; and it is further
ORDERED, that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
DATED:
March 31, 2016
Albany, New York
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