Gillard v. Rovelli et al
Filing
92
DECISION and ORDER: ORDERED that 84 Report and Recommendation is APPROVED and ADOPTED in its ENTIRETY. ORDERED, that Defendants' Motion (Dkt. No. 41 ) to dismiss is GRANTED as to Plaintiff's: (1) § 1983 claims against all ind ividual Defendants in their official capacities; and (2) conspiracy claims against all Defendants. ORDERED, that Defendants' Motion (Dkt. No. 41) to dismiss is DENIED as to: (1) Plaintiff's Fourteenth Amendment due process claims; and (2) Defendants' qualified immunity defense. ORDERED, that Plaintiff's First Amendment claims based on access to courts and interference with mail are DISMISSED without prejudice. ORDERED, that as to those claims, Plaintiff may file an ame nded complaint within twenty days from the filing date of this Order if he wishes to pursue those claims. ORDERED, that, if within twenty days, such an amended complaint is not filed, those claims shall be dismissed pursuant to this Order without further action of the Court. ORDERED, that Defendants' request for a protective order is GRANTED and discovery in this matter is stayed until the issuance of a scheduling order pursuant to Federal Rule of Civil Procedure 16. Signed by Senior Judge Lawrence E. Kahn on 9/30/13. {order served via regular mail on plaintiff}(nas)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
GARY GILLARD,
Plaintiff,
-against-
9:12-CV-0083 (LEK/CFH)
MICHAEL ROVELLI; et al.,
Defendants.
DECISION and ORDER
I.
INTRODUCTION
This matter comes before the Court following a Report-Recommendation filed on July 18,
2013, by the Honorable Christian F. Hummel, United States Magistrate Judge, pursuant to 28
U.S.C. § 636(b) and Local Rule 72.3 of the Northern District of New York. Dkt. No. 84 (“ReportRecommendation”). After fourteen days from the service thereof, the Clerk has sent the entire file
to the undersigned, including Defendants’ and Pro se Plaintiff Gary Gillard’s Objections. Dkt. Nos.
85 (“Defendants’ Objections”); 86 (“Plaintiff’s Objections”). For the following reasons, the Court
approves and adopts the Report-Recommendation in its entirety and grants in part Defendants’
Motion to dismiss. Dkt. No. 41 (“Motion”).
II.
BACKGROUND
A. Factual Background
The Court presumes the parties’ familiarity with the facts underlying this case. For a
complete statement of the facts, reference is made to the Report-Recommendation.
B. Procedural History
On January 18, 2012, Plaintiff commenced this action, seeking relief under 42 U.S.C.
§ 1983. Dkt. No. 1 (“Complaint”). Plaintiff alleges that Defendants, fourteen current and retired
employees of the New York State Department of Correctional and Community Supervision
(“DOCCS”) and one inmate, violated his constitutional rights under the First, Eighth, and
Fourteenth Amendments. See generally id.
On October 17, 2012, all Defendants except Defendant Jose Nunez filed the Motion seeking:
(1) dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6); and (2) a protective order
pursuant to Federal Rule of Civil Procedure 26(c)(1). Mot. Plaintiff then filed a Response opposing
the Motion. Dkt. No. 50 (“Response”).
Judge Hummel recommends that Defendants’ Motion be granted as to Plaintiff’s: (1) § 1983
claims against all individual Defendants in their official capacities; and (2) conspiracy claims
against all Defendants. See Report-Rec. However, Judge Hummel recommends that the Motion be
denied as to the Fourteenth Amendment procedural due process claims. Id. Judge Hummel also
recommends that Plaintiff’s First Amendment claims based on access to courts and interference
with mail be dismissed without prejudice. Id. Finally, Judge Hummel recommends that
Defendants’ request for a protective order staying discovery be granted. Id.
III.
LEGAL STANDARDS
A. Review of a Magistrate Judge’s Report-Recommendation
A district court must review de novo any objected-to portions of a magistrate judge’s report-
recommendation or specific proposed findings or recommendations therein and “may accept, reject,
or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28
U.S.C. § 636(b); accord FED. R. CIV. P. 72(b); see also Morris v. Local 804, Int’l Bhd. of Teamsters,
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167 F. App’x 230, 232 (2d Cir. 2006); Barnes v. Prack, No. 11-CV-0857, 2013 WL 1121353, at *1
(N.D.N.Y. Mar. 18, 2013). If no objections are made, or if an objection is general, conclusory,
perfunctory, or a mere reiteration of an argument made to the magistrate judge, a district court need
review that aspect of a report-recommendation only for clear error. Chylinski v. Bank of Am., N.A.,
434 F. App’x 47, 48 (2d Cir. 2011); Barnes, 2013 WL 1121353, at *1; Farid v. Bouey, 554 F. Supp.
2d 301, 306-07 & n.2 (N.D.N.Y. 2008); see also Machicote v. Ercole, No. 06 Civ. 13320, 2011 WL
3809920, at *2 (S.D.N.Y. Aug. 25, 2011) (“[E]ven a pro se party’s objections to a Report and
Recommendation must be specific and clearly aimed at particular findings in the magistrate’s
proposal, such that no party be allowed a second bite at the apple by simply relitigating a prior
argument.”). A district court also “may receive further evidence or recommit the matter to the
magistrate judge with instructions.” 28 U.S.C. § 636(b); accord FED. R. CIV. P. 72(b)(3).
B. Motion to Dismiss
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
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misconduct].” Id. at 556. The plausibility standard “asks for more than a sheer possibility that a
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. Additionally, when a party seeks judgment
against a pro se litigant, a court must afford the non-movant special solicitude. See Triestman v.
Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006). “[A] pro se litigant’s submissions must
be construed liberally, and . . . such submissions must be read to raise the strongest arguments that
they suggest.” Id.
IV.
DISCUSSION
A. The Report-Recommendation
In the Report-Recommendation, Judge Hummel refused to dismiss Plaintiff’s Fourteenth
Amendment due process claim, in which Plaintiff argues that Defendants deprived him of a hearing
regarding his 90-day keeplock confinement. See Report-Rec. at 19. Judge Hummel found that
there were questions of fact as to whether Plaintiff’s confinement was an atypical and significant
hardship in relation to the ordinary incidents of prison life, such that a liberty interest protected by
the Due Process Clause of the Fourteenth Amendment was implicated. See Sandin v. Conner, 515
U.S. 472, 484 (1995); Report-Rec. at 18-19. The Report-Recommendation acknowledged that: (1)
the length of Plaintiff’s confinement failed to amount to even the “intermediate duration’” for which
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the Second Circuit has determined that “‘a detailed record of the conditions of confinement relative
to ordinary prison conditions is required[]’” to establish a liberty interest; and (2) the Complaint did
not contain any such record or “any allegations to indicate that [Plaintiff’s] confinement was
atypical or significant in relation to the ordinary prison life.” Report-Rec. at 18-19 (citing Palmer v.
Richards, 364 F.3d 60, 64-65 (2d. Cir. 2004)). However, the Report-Recommendation noted that
dismissal of due process claims unsupported by a factual record is generally proper only where the
period of time spent in solitary confinement is less than thirty days and there is no indication the
prisoner endured unusual Special Housing Unit (“SHU”) conditions. See Palmer, 364 F.3d at 6465. Because Plaintiff is a pro se litigant whose submissions must be construed liberally, and
because Plaintiff’s keeplock confinement exceeded the thirty-day period set forth in Palmer, Judge
Hummel denied Defendants’ Motion with respect to Plaintiff’s Fourteenth Amendment procedural
due process claims. Id. at 19.
B. Objections
In their Objections, Defendants argue that Judge Hummel erred in finding that Palmer’s
thirty-day rule is controlling in the present case. Objs. at 3-4. They base this contention solely on
the Second Circuit’s holding in Sealey v. Giltner, 197 F.3d 578, 589-90 (2d Cir. 1999), that an
inmate’s 101-day confinement in SHU did not constitute an atypical or significant hardship under
Sandin. Objs. at. 4 Defendants argue that because: (1) Plaintiff’s 90-day confinement was shorter
than the 101-day confinement in Sealey; and (2) keeplock is less confining than SHU, Plaintiff’s
confinement cannot constitute an atypical and significant hardship. Id. (citing Sealey, 197 F.3d at
589-90). Defendants argue that even if Plaintiff had been confined to keeplock for up to 305 days,
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he still could not establish a liberty interest because he neglected to provide details of the conditions
of his confinement, as Palmer requires. Id.
Plaintiff asserts that the Report-Recommendation failed to understand that Plaintiff is
asserting a Fourteenth Amendment claim based on Defendants’ denial of his access to a hearing
regarding his 90-day confinement, rather than on the confinement itself. Pl’s Objs.
C. Decision to Adopt the Report-Recommendation
1. Defendants’ Objections
Upon a de novo review of the record and the Report-Recommendation, the Court concludes
that the Report-Recommendation’s denial of Defendants’ Motion to dismiss Plaintiff’s Fourteenth
Amendment claim was proper. Defendants contend that, because Sealey held that up to 101 days of
SHU confinement under normal conditions is not an atypical and significant hardship, any
confinement below that 101-day threshold necessarily fails to implicate a liberty interest. Defs’
Objs. at 4. But Sealey did not set any durational floor or deem duration dispositive; rather, the
Second Circuit held that “[b]oth the conditions [of confinement] and their duration must be
considered . . . since especially harsh conditions endured for a brief interval and somewhat harsh
conditions endured for a prolonged interval might both be atypical.” Sealey, 197 F.3d at 586
(internal citation omitted and emphasis added). Nor does Sealey even remotely suggest that,
because keeplock is generally less confining than SHU, keeplock confinement of less than 101 days
is necessarily insufficiently harsh to implicate a liberty interest. Under Sealey, even if Plaintiff’s
keeplock stay had been merely a “brief interval” rather than 90 days, it could still implicate a liberty
interest if the conditions were sufficiently harsh.
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Defendants, after making their 101-day-absolute-minimum argument, assert that the
Complaint should also be dismissed because Plaintiff must offer evidence of the conditions of his
confinement, which he has not done. But Defendants fail to distinguish between the ReportRecommendation’s treatment of: (1) the showing Plaintiff must make to prevail on his Fourteenth
Amendment due process claim; and (2) the showing Plaintiff must make to avoid dismissal of that
claim. Defendants argue that the Complaint fails to allege the requisite non-durational facts
suggesting atypicality. Defs’ Objs. at 4. The Report-Recommendation holds likewise. ReportRec. at 18-19. The Report-Recommendation, however, holds that, in light of Plaintiff’s pro se
status, his failure to allege such facts does not necessitate dismissal. Report-Rec. at 19. The only
authority cited by Defendants allegedly pertaining to dismissal involved a motion for summary
judgment, not a motion to dismiss. See Gee v. Fischer, No. 9-CV-1057, 2011 WL 4965297
(N.D.N.Y. Sept. 30, 2013); Defs’ Objs. at 6. It is therefore inapposite. In light of the Second
Circuit’s command that a pro se litigant’s complaints “must be construed liberally, and . . . read to
raise the strongest arguments that they suggest,” Palmer, 364 F.3d at 64-65, the Court adopts the
Report-Recommendation so that Plaintiff may further elaborate on the conditions of his keeplock
confinement.
2. Plaintiff’s Objections
Plaintiff argues that the Report-Recommendation failed to recognize that his Fourteenth
Amendment claim is premised on Defendants’ denial of his access to a disciplinary hearing. Pl’s
Objs. This is incorrect. The Report-Recommendation examines the nature of Plaintiff’s
confinement not to determine whether the confinement is itself actionable, but rather whether that
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confinement was sufficiently atypical and significant to implicate a liberty interest entitling Plaintiff
to a hearing. See Report-Rec. at 17-19.
V.
CONCLUSION
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 84) is APPROVED and
ADOPTED in its ENTIRETY; and it is further
ORDERED, that Defendants’ Motion (Dkt. No. 41) to dismiss is GRANTED as to
Plaintiff’s: (1) § 1983 claims against all individual Defendants in their official capacities; and (2)
conspiracy claims against all Defendants; and it is further
ORDERED, that Defendants’ Motion (Dkt. No. 41) to dismiss is DENIED as to: (1)
Plaintiff’s Fourteenth Amendment due process claims; and (2) Defendants’ qualified immunity
defense; and it is further
ORDERED, that Plaintiff’s First Amendment claims based on access to courts and
interference with mail are DISMISSED without prejudice; and it is further
ORDERED, that as to those claims, Plaintiff may file an amended complaint within twenty
days from the filing date of this Order if he wishes to pursue those claims; and is is further
ORDERED, that, if within twenty days, such an amended complaint is not filed, those
claims shall be dismissed pursuant to this Order without further action of the Court; and it is further
ORDERED, that Defendants’ request for a protective order is GRANTED and discovery in
this matter is stayed until the issuance of a scheduling order pursuant to Federal Rule of Civil
Procedure 16; and it is further
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ORDERED, that the Clerk of the Court serve a copy of this Decision and Order upon the
parties to this action.
IT IS SO ORDERED.
DATED:
September 30, 2013
Albany, New York
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