Justice v. Hulihan et al

Filing 49

MEMORANDUM-DECISION AND ORDER: ORDERED, that Magistrate Judge David E. Peebles' July 16, 2013 Report-Recommendation and Order (Dkt. No. 47 ) is ADOPTED in part and REJECTED in part, as follows; 1. The R&R is ADOPTED, and the motion for sum mary judgment (Dkt. No. 41 ) GRANTED in regard to Tapia and Hulihan. 2. The R&R is REJECTED, and the motion for summary judgment (Dkt. No. 41 ) DENIED in regard to Wiggins. 3. The R&R is REJECTED, and the motion for summary judgment DENIED in r egard to Fischer. ORDERED, that Wiggins may file a dispositive motion within fourteen (14) days of the filing of this order. ORDERED, that Justice may file a response, if necessary, in accordance with the local rules. Signed by Chief Judge Gary L. Sharpe on 10/4/13. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
JOHN D. JUSTICE,
Plaintiff,

9:11-cv-419
(GLS/DEP)

v.
WILLIAM HULIHAN et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
John D. Justice
Pro Se
87-B-0385
Great Meadow Correctional Facility
Box 51
Comstock, NY 12821
FOR THE DEFENDANTS:
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224

CATHY Y. SHEEHAN
Assistant Attorney General

Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se John D. Justice commenced this action against

defendants William Hulihan (hereinafter “Hulihan”), Charles Tapia, R.
Wiggins, Christopher Holmer, Eric Chandler, the Town of Marcy, Hon.
Donald S. Buttenschon, Scott D. McNamara, Robert L. Bauer, Michael
Hulihan, Richard Roy, and Brian Fischer pursuant to 42 U.S.C. §§ 1983
and 1985. (Compl., Dkt. No. 1.) Justice’s eight enumerated claims pertain
to: interference with the right to petition government for the redress of
grievances, equal protection, deliberate indifference to potential harm, and
violations of due process. (Id. at 30-32, 36.) He expressly seeks a
declaration that defendants violated his civil rights, and compensatory
damages. (Id. at 32-34, 36.)
Following initial review of the complaint, this court dismissed all but
two of Justice’s causes of action: an Eighth Amendment claim that
corrections officers were deliberately indifferent and failed to protect
Justice from an assault by a fellow inmate, and a Fourteenth Amendment
procedural due process claim that evidence was intentionally withheld from
Justice during a disciplinary hearing. (Dkt. No. 8 at 15-16, 20-21, 22.) The
remaining defendants–Hulihan, Tapia, Wiggins, and Fischer– interposed
an answer, (Dkt. No. 16), and subsequently moved for summary judgment,
(Dkt. No. 41). In a Report-Recommendation and Order (R&R) dated July
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16, 2013, Magistrate Judge David E. Peebles recommended that
defendants’ motion be granted and Justice’s complaint be dismissed. (Dkt.
No. 47.) Justice subsequently filed objections to the R&R. (Dkt. No. 48.)
For the reasons that follow, the R&R is adopted with respect to the claims
against Tapia and Hulihan, and rejected with respect to the claims against
Wiggins and Fischer.
II. Background
Justice is an inmate in the custody of the New York State
Department of Corrections and Community Supervision (DOCCS). (Defs.’
Statement of Material Facts (SMF) ¶ 1, Dkt. No. 41, Attach. 14.) During
the relevant time period, Justice was incarcerated in the Mid-State
Correctional Facility (“Mid-State”). (Id. ¶ 6.) At Mid-State, Justice served
on the Inmate Grievance Resolution Committee. (Id. ¶¶ 39-40.) Beginning
in early July 2008, Justice became aware of rumors that the Mid-State
administration was unhappy with his participation on the grievance
committee, and he became concerned that the administration was “going
to either set [him] up with a weapon or a drug charge, just to get [him] out
of the jail.” (Dkt. No. 41, Attach. 2 at 52.)
After hearing of these rumors, Justice discussed his concerns with
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Tapia, the supervisor of the inmate grievance program at Mid-State, and
also wrote a letter to District Judge Richard J. Arcara of the Western
District of New York. (Id. at 52-55.) Justice sent a copy of that letter to
Tapia, Hulihan, the superintendent of Mid-State, and Fischer, the
commissioner of DOCCS. (Id. at 55-56.) The letter to Judge Arcara
explained the reports Justice had heard regarding the administration’s
dissatisfaction with his presence on the grievance committee, and
expressed his concern that the administration would have him “set-up” by
way of “a weapon planted...on [his] person, or in [his] living area in [his]
housing unit[, o]r with a fictitious drug charge.” (Id. at 87.)
On July 26, 2008, Justice was allegedly assaulted by Sean
McAleese, a fellow inmate at Mid-State. (Compl. at 15; Defs.’ SMF ¶ 14.)
During the altercation, Justice allegedly suffered a facial injury which
required medical attention. (Compl. at 17-18; Defs.’ SMF ¶ 17.)
As a result of the incident, both Justice and inmate McAleese were
accused of violating prison rules and issued misbehavior reports. (Dkt. No.
41, Attach. 3 ¶ 11.) Following a disciplinary hearing, Justice was
disciplined for failing to report his injury. (Dkt. No. 41, Attach. 2 at 43-44.)
Justice alleges that, in preparation for this disciplinary hearing, he
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requested a copy of the Unusual Incident Report (“UI Report”) in order to
prepare his defense at the hearing. (Compl. at 35.) Justice was allegedly
told by the hearing office that such a report did not exist, and therefore
could not be provided to him. (Id.) Justice was subsequently found guilty
of the offense, which was affirmed on administrative appeal. (Id.) Almost
six months after the appeal, the New York State Attorney General’s Office
produced the UI Report to Justice, and Justice alleges that the report was
therefore in existence at the time of his disciplinary hearing. (Id.)
Justice commenced this action in April 2011. (Compl.) In October
2012, defendants moved for summary judgment dismissing Justice’s
complaint. (Dkt. No. 41.)
III. Standard of Review
Before entering final judgment, this court reviews report and
recommendation orders in cases it has referred to a magistrate judge. If a
party properly objects to a specific element of the magistrate judge’s
findings and recommendations, this court reviews those findings and
recommendations de novo. See Almonte v. N.Y. State Div. of Parole, No.
Civ. 904CV484GLS, 2006 WL 149049, at *3, *5 (N.D.N.Y. Jan. 18, 2006).
In those cases where no party has filed an objection, only vague or general
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objections are made, or a party resubmits the same papers and arguments
already considered by the magistrate judge, this court reviews the findings
and recommendations of the magistrate judge for clear error. See id. at *45.
The standard of review pursuant to Fed. R. Civ. P. 56 is well
established and will not be repeated here. For a full discussion of the
standard, the court refers the parties to its decision in Wagner v. Swarts,
827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011), aff’d, 489 F. App’x 500 (2d Cir.
2012).
IV. Discussion
Because Justice has made specific objections to Judge Peebles’
recommendations, the court has reviewed those objections de novo. (Dkt.
No. 48); see Almonte, 2006 WL 149049, at *3, *5.
A.

Tapia and Hulihan
With respect to Justice’s claims against Tapia and Hulihan, this court

adopts Judge Peebles’ R&R, and therefore dismisses the claims against
those defendants. The Eighth Amendment to the United States
Constitution prohibits “cruel and unusual” punishments. “Punishment”
refers not only to deprivations imposed as a sanction for criminal
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wrongdoing, but also to deprivations suffered during imprisonment. Estelle
v. Gamble, 429 U.S. 97, 102-03 (1976). Punishment is “cruel and unusual”
if it involves the unnecessary and wanton infliction of pain or if it is
incompatible with “the evolving standards of decency that mark the
progress of a maturing society.” Id. at 102. Thus, the Eighth Amendment
imposes on jail officials the duty to “provide humane conditions of
confinement” for prisoners. Farmer v. Brennan, 511 U.S. 825, 832 (1994).
Prison officials must “ensure that inmates receive adequate food, clothing,
shelter, and medical care, and must ‘take reasonable measures to
guarantee the safety of the inmates.’” Id. (quoting Hudson v. Palmer, 468
U.S. 517, 526-27 (1984)).
“The failure of custodial officers to employ reasonable measures to
protect an inmate from violence by other prison residents has been
considered cruel and unusual punishment.” Ayers v. Coughlin, 780 F.2d
205, 209 (2d Cir. 1985). A plaintiff asserting a failure to protect claim must
prove that the defendant actually knew of and disregarded an excessive
risk of harm to the plaintiff’s health and safety. Hayes v. N.Y.C. Dep’t of
Corrs., 84 F.3d 614, 620 (2d Cir. 1996).
As alleged in the complaint, Hulihan and Tapia failed to protect
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Justice from a known risk of harm posed by inmate McAleese; Justice
alleges that Wiggins “explicitly authorized” the assault. (Compl. at 17.)
After reviewing the record, the court agrees with the R&R that there is
insufficient evidence to oppose defendants’ motion for summary judgment,
because the record evidence fails to establish that Hulihan and Tapia had
knowledge of, and subsequently disregarded, an excessive risk of harm to
Justice’s health and safety. (R&R at 13-17.) Both Justice’s conversations
with Tapia and the letter Justice sent to Judge Arcara simply indicate that
Justice was concerned for the potential that the prison administration may
try to “set him up” due to his role on the inmate grievance committee, (Dkt.
No. 41, Attach. 2 at 52, 86-87), and there is no evidence in the record that
Hulihan and Tapia were on notice of a threat to Justice’s health and safety.
Therefore, although the record is equivocal as to which defendants actually
received Justice’s letter, even assuming Hulihan and Tapia had received
the letter, the language of the letter would not have put them on notice of a
threat to Justice’s health and/or safety. Consequently, Justice’s claims
against Hulihan and Tapia based on a failure to protect are dismissed.
B.

Wiggins
Justice’s claim against Wiggins arises from his alleged authorization
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of the assault on Justice. (Compl. at 17.) In his R&R, Judge Peebles
recommended that this claim be dismissed because of the lack of
admissible evidence in the record to oppose defendants’ motion for
summary judgment. (R&R at 13-14.) Specifically, Judge Peebles pointed
out that the only record evidence supporting Justice’s allegations against
Wiggins was Justice’s testimony that another inmate, Eslay Martinez,
heard Wiggins instruct McAleese to assault Justice. (Id. at 13.) Because
this evidence would be inadmissible hearsay, Justice could not rely on it in
opposing defendants’ motion. See Burlington Coat Factory Warehouse
Corp. v. Esprit de Corp., 769 F.2d 919, 924 (2d Cir. 1985) (“[A party]
cannot rely on inadmissible hearsay in opposing a motion for summary
judgment”).
However, in a footnote, Judge Peebles mentions that “[d]efendants’
motion is equivocal concerning its scope,” as the notice of motion states
that all defendants, including Wiggins, seek dismissal, while defendants’
memorandum in support of their motion only addresses arguments with
respect to three of the four defendants: Hulihan, Tapia and Fischer. (R&R
at 10.) Nevertheless, Judge Peebles sua sponte considered whether there
was sufficient record evidence to support Justice’s claims against Wiggins,
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and recommended dismissal of the claims. (Id.) He then permitted the
parties to argue, in their objections to the R&R, why the district judge
should consider any additional evidence on this point. (Id.)
In his objections, Justice asserts that Wiggins did not move for
summary judgment, and therefore Judge Peebles’ recommendation on this
claim resulted in Justice being “wrongfully precluded from offering any
evidence or argument” to this point. (Dkt. No. 48 at 3.) Pursuant to Judge
Peebles’ footnoted instructions, Justice seeks an opportunity to present
additional, admissible evidence on this point, namely an affidavit from
inmate Martinez. (Id.)
As such, the court rejects the portion of the R&R recommending that
summary judgment be granted on the claims against Wiggins. Further,
Wiggins is given leave to file a dispositive motion no later than 14 days
from the date of this Memorandum-Decision and Order.
C.

Fischer
With respect to the claims against Fischer, Justice alleges that the

withholding of the UI Report constituted a violation of his Fourteenth
Amendment due process rights. (Compl. at 34-36.) He seeks “declaratory
relief, to the effect that the Inmate Misbehavior Report is declared
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dismissed, and the prison disciplinary proceeding declared expunged” from
Justice’s prison records. (Id. at 36.) In his R&R, Judge Peebles
recommended that this claim be dismissed due to the lack of record
evidence demonstrating Fischer’s personal involvement in the alleged
withholding of the report. (R&R at 17-20.) For the reasons set forth below,
the court rejects this portion of the R&R.
“It is well-settled in this Circuit that ‘personal involvement of
defendants in alleged constitutional deprivations is a prerequisite to an
award of damages under [section] 1983.’” Wright v. Smith, 21 F.3d 496,
501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885
(2d Cir. 1991)). However, “[w]hile a plaintiff may not pursue money
damages against an individual defendant who lacks personal involvement
with the underlying offense, that does not preclude a plaintiff from seeking
prospective, injunctive [or declaratory] relief against the same defendant.”
Bodie v. Morgenthau, 342 F. Supp. 2d 193, 203 (S.D.N.Y. 2004); see
Marshall v. Switzer, 900 F. Supp. 604, 615 (N.D.N.Y. 1995)
(“notwithstanding [defendant’s] lack of personal involvement in the alleged
wrongful conduct, plaintiff’s claims for declaratory and injunctive relief . . .
are not barred”).
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Justice argues that because he is only seeking declaratory relief
against Fischer, and not money damages, he should not be required to
prove personal involvement by Fischer in order to maintain his claim. (Dkt.
No. 45, Attach. 1 at 2-4.) This argument was unaddressed in the
underlying R&R even though Justice raised it in his opposition to
defendants’ motion for summary judgment. (Id.) Additionally, Justice
objected to the R&R on these same grounds. (Dkt. No. 48 at 6.) At this
juncture, the court finds Justice’s argument on this point persuasive, such
that summary judgment dismissing the claims against Fischer is not
appropriate. The court therefore rejects this portion of the R&R.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge David E. Peebles’ July 16, 2013
Report-Recommendation and Order (Dkt. No. 47) is ADOPTED in part and
REJECTED in part, as follows:
1.

The R&R is ADOPTED, and the motion for summary judgment
GRANTED in regard to Tapia and Hulihan.

2.

The R&R is REJECTED, and the motion for summary judgment
DENIED in regard to Wiggins.
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3.

The R&R is REJECTED, and the motion for summary judgment
DENIED in regard to Fischer; and it is further

ORDERED that Wiggins may file a dispositive motion within fourteen
(14) days of the filing of this order; and it is further
ORDERED that Justice may file a response, if necessary, in
accordance with the local rules; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
October 4, 2013
Albany, New York

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