Marino v. Watts et al

Filing 49

MEMORANDUM-DECISION AND ORDER: ORDERED, that the Report-Recommendation and Order (Dkt. No. 47 ) is accepted insofar as it summarizes the facts and procedural background of this case, and otherwise rejected. ORDERED that defendants motion to dismi ss (Dkt. No. 34 ) is granted as set forth herein. ORDERED that the complaint is dismissed with leave to replead in accordance with this Memorandum-Decision and Order. ORDERED that if plaintiff does not submit a timely amended complaint, the matt er will be reviewed by this Court for judgment dismissing the action. ORDERED that if plaintiff does submit a timely amended complaint, the case shall be returned to the magistrate judge for further proceedings. ORDERED that ANY AMENDED COMPLAINT SHALL BE FILED AND SERVED ON OR BEFORE JUNE 6, 2014. ORDERED that PLAINTIFF IS WARNED THAT IF HE FAILS TO FILE AND SERVE AN AMENDED COMPLAINT IN COMPLIANCE WITH THIS MEMORANDUM-DECISION AND ORDER ON OR BEFORE JUNE 6, 2014, THE CASE WILL BE DISMISSED. Signed by Senior Judge Norman A. Mordue on 5/6/14. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
gggggggggggggggggggggggggggggggggggggggggggggggggggggggg

VINCENT MICHAEL MARINO,
Plaintiff,
-v-

9:12-CV-801 (NAM/RFT)

N

HARRELL WATTS, General Counsel/BOP/DOJ,
DEBORAH G. SCHULT, Warden/BOP/DOJ,
ROBERT HELMS, SIS Lieutenant/BOP/DOJ,
JASON POIRIER, Correctional Officer/BOP/DOJ,
D. RYAN, Disciplinary Hearing Officer/BOP/DOJ,
MS. SEPANEK, Counselor/BOP/DOJ, MR.
LUCAS, Case Manager/BOP/DOJ, JOSEPH
SMITH, Correctional Officer/BOP/DOJ, JOHN
and JANE DOES 1-20;
Defendants.
gggggggggggggggggggggggggggggggggggggggggggggggggggggggg

A

APPEARANCES:
VINCENT MICHAEL MARINO
14431-038
FCI MCDOWELL
PO BOX 1009
Welch, West Virginia 24801
Plaintiff, Pro Se

M

THE HON. RICHARD S. HARTUNIAN
United States Attorney of the Northern District of New York
KAREN F. LESPERANCE, Esq., Attorney for Defendants
James T. Foley U.S. Courthouse
445 Broadway
Albany, New York 12207

Hon. Norman A. Mordue, Senior U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
INTRODUCTION
Plaintiff, an inmate in the federal correctional system, brings this pro se civil rights action

pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S.
388 (1971). Defendants move (Dkt. No. 41) to dismiss the action, on the ground of failure to
state a claim and/or res judicata. Upon referral pursuant to 28 U.S.C. § 636(b)(1)(B) and Local
Rule 72.3(c), United States Magistrate Judge Randolph F. Treece has prepared a ReportRecommendation and Order (Dkt. No. 47) recommending dismissal. Plaintiff has filed objections
(Dkt. No. 41). Given the extensive nature of plaintiff’s objections, the Court conducts a de novo
N

review. See 28 U.S.C. § 636(b)(1)(C). As set forth below, the Report-Recommendation and
Order is accepted insofar as it summarizes the facts and procedural background of this case, and
otherwise rejected. The Court grants dismissal of the complaint with leave to replead certain
claims.
BACKGROUND

A

Magistrate Judge Treece sets forth in detail the procedural history of this action. The
Court briefly summarizes it here. On December 22, 1999, plaintiff was convicted in the
Worcester Division of the United States District Court for the District of Massachusetts on a
Racketeer Influence and Corrupt Organizations Act violation and related crimes. Plaintiff’s
claims in this action arise from an incident occurring on December 3, 2009, while plaintiff was
incarcerated at Ray Brook Federal Correctional Institute (“Ray Brook”). During a search of

M

plaintiff’s cell, prison authorities found betting slips, $2,729.32 worth of unused stamps, and ten
gallons of homemade intoxicants. Plaintiff was charged with making, possessing, or using
intoxicants, possessing gambling paraphernalia, conducting a gambling pool, and possessing
unauthorized items. On December 15, 2009, after a disciplinary hearing presided over by
defendant Disciplinary Hearing Officer (“DHO”) D. Ryan, plaintiff was found guilty. As a result,

-2-

plaintiff spent two and one-half months in the Special Housing Unit (“SHU”) and lost 36 days of
earned good time credits. Plaintiff’s administrative appeal was denied.
Plaintiff filed a habeas corpus petition in this district pursuant to 28 U.S.C. § 2241,
seeking the restoration of the 36 days good time credits or, in the alternative, judicial review of
the December 3, 2009 video tape and an evidentiary hearing. On October 20, 2011, the petition
was transferred to Western District of Louisiana. On April 16, 2012, United States Magistrate
N

Judge James D. Kirk issued a Report and Recommendation recommending that the habeas
petition be denied with prejudice. Marino v. Schult, 2012 WL 2133630 (W.D. La. Apr. 16, 2012).
Magistrate Judge Kirk summarized plaintiff’s section 2241 claims as follows:
DHO Officer Ryan violated Marino’s due process rights by precluding
Marino from receiving core exculpatory material evidence at his DHO
hearing to prove the critical 10 gallons of "unknown liquid" depicted
in the BOP’s first incident report (#1950877) supports the BOP's
second incident report (#1951307) issued 2 full days later, which was
false, misleading, inaccurate and should be expunged, since Marino
was denied an opportunity to confront and refute the evidence.

2.

DHO Officer Ryan violated Marino’s right to due process and his
liberty interest by failing to allow Marino to call witnesses CO/Joe
Smith in his defense.

3.

DHO Officer Ryan's preclusion to review the critical video tape of
Mohawk-B Unit at FCl-Ray Brook in New York, from 8 a.m. through
2 p.m. on December 3, 2009, which data showed the second incident
report (# 1951307) dated December 5, 2009 to be inaccurate and false
since the 10 gallons of then "unknown liquid" could not have logically
turned into intoxicant 2 days later when it did not exist and it was
already deemed "unknown liquid" in the first incident report
(#1950877) by BOP staff and thus was not available for further
testing.

4.

BOP/DOJ staff retaliated against Marino when the BOP staff
intentionally manipulated Marino's security level points from 11
points (low level security institution) to 24 points (high level security
institution), which adversely affects Marino, placing Marino over 500

A

1.

M

-3-

miles away from his home, and again retaliated against Marino by
placing Marino on the "BOP's Diesel Therapy Program" by putting
him in transit without his legal mail and legal property from December
3, 2009 to February 12, 2010 through July 13, 2010, so Marino did not
receive his legal mail and legal material until August 2010 (eight
months).
The DHO officer's failure to dismiss the BOP's second incident report
(# 1952307) due to untimely service, in violation of Policy Statement
5270.07 Chapter 2, page 3, subsection I, and CFR 541.11 is refuted by
the BOP's first incident report (# 1950877), in violation of Marino's
right to due process and liberty interest, since Marino lost 36 days of
earned good time credit.

6.

The BOP’s intentional delay of over 6 months to respond to Marino's
BP-l1 (#570917-Al) was excessive and required review or dismissal
of the second incident report (# 19513077).

N

5.

Id. at *1-*2. On June 12, 2012, United States District Judge James T. Trimble denied the petition
and dismissed it with prejudice for the reasons set forth in Magistrate Judge Kirk’s Report and
A

Recommendation. Marino v. Schult, 2012 WL 2126944 (W.D. La. June 12, 2012).
On March 23, 2012 plaintiff filed the instant civil rights action.1 As Magistrate Judge
Treece observes: “Plaintiff re-alleged, nearly verbatim, the claims he raised in his federal habeas
petition ... and further expounded upon those claims adding additional facts and allegations, and
naming several new Defendants.” The causes of action in the complaint before this Court are as
follows2:

M

First Cause of Action
The willful, intentional actions of Defendants: Watts, Schult , Helms, Poirier,
Ryan , Sepanek, Lucas, Smith, & several John & Jane Does 1-20, all
conspired together with each other & others known & unknown BOP/DOJ
employees to file a false SECOND INCIDENT REPORT #1951307, used to
1

Plaintiff filed the action in District of Columbia District Court, which transferred it to the
Souuthern District of Virginia, which transferred it to this Court on May 15, 2012.
2

The Court quotes from the complaint directly without correcting or noting errors.

-4-

take 36 days of earned good time jail credits from Marino, as retaliation for
Marino exercising his First Amendment's Freedom of Speech & Fifth & Sixth
Amendment's Due Process as described supra. Also violating the 8th
Amendment's Cruel & Unusual Punishment without due process of law.

N

Second Cause of Action
The willful & intentional actions of Defendants: Watts, Schult, Helms, Poirier,
Ryan, Sepanek, Lucas, Smith & several John & Jane Does 1-20, all conspired
together with each other & others known & unknown to retaliate against
Marino for leaving Marino in FCI Ray Brook's SHU without access to flush
the toilet, without access to control the lights, without a shower, without clean
linen & clothes without his legal work & legal mail, over 2 months over his
sanctioned DHO time in violations of the First Amendment's Freedom of
Speech, Fifth & Sixth Amendment's Due Process failing to allow Marino the
use of the Administrative Remedy Process, and in violations of the Eighth
Amendment's Cruel & Unusual Punishment of the United States Constitution
leaving Marino in SHU for over 2 months for a false INCIDENT REPORT
TWO #1951307.

A

Third Cause of Action
The willful & intentional actions of Defendants: Watts, Schult , Helms, Ryan,
Sepanek, Lucas, Smith, Poirier, & several John & Jane Does 1-20, retaliated
against Marino by taking Marino's Federal Rules of Civil Procedure Book on
December 3, 2009, over 600 books Commissary bought United States Postage
Stamps bought 3 books per week for the past 13-14 years at various prison
commissaries as the commissary records so supports, taking Marino's 300
commissary bought fish, seizing Marino's legal mail & legal work preventing
Marino from access to the courts, in violations of the 1st Amendments
Freedom of Speech, 5th & 6th Amendment's Due Process & 8th Amendment's
Cruel & Unusual Punishment of the U.S. Constitution.

M

Fourth Cause of Action
The willful & intentional actions of Defendants: Watts, Schult , Helms, Ryan,
Sepanek, Lucas, Smith, Poirier, & several John & Jane Does 1-20, retaliated
against Marino by "Manipulation of Marino's Custody & Security Points"
from 11 points to 24 points...
Against Marino for exercising his First Amendment's Freedom of Speech &
Fifth & Sixth Amendment's Due Process as seen supra, violating Marino's 1st,
5th, & 6th Amendments, designed to place Marino in USP Pollock, Louisiana
that has a history of 15 murders, over 300 stabbings, over 300 knife shots &
known as a "Lock Down" institution preventing Marino from access to the
Courts, Law Library & the exercise of his Due Process, also in violations of
the 8th Amendment's Cruel & Unusual Punishment.
-5-

Fifth Cause of Action
The willful & intentional actions of Defendants: Watts, Schult, Helms, Poirier,
Ryan, Smith, Sepanek, Lucas, & several John & Jane Does 1-20, placing
Marino on "Defendants/BOP'S Diesel Therapy Program" from December 3,
2009 through July 13, 2010, Marino was without his legal mail & legal work.
In fact Marino did not receive his legal work until August 2010. Marino
received some of his "Legal Mail" from 3-6 months later, some was lost, some
was destroyed, some was sent back to sender.

N
A

Sixth Cause of Action
The willful & intentional actions of Defendants: Watts, Schult, Helms, Poirier,
Ryan, Smith, Sepanek, Lucas, & several John & Jane Does 1-20, intentional
infliction of emotional distress and anguish, as the defendants intended to
inflict emotional distress or knew or should have known that emotional
distress was the likely result of Defendants unconstitutional conduct as
described supra; That the conduct was extreme and outrageous was beyond
all possible bounds of decency and utterly intolerable in a civilized
community; That the actions of Defendants were the cause of Plaintiff
Marino's distress; and That the emotional distress sustained by Marino was
severe and of a nature that no reasonable man could be expected to endure it,
in violations of the 8th Amendment of the United States Constitution & Due
Process.
(References to exhibits omitted.)
DISCUSSION
In addressing this motion to dismiss, the Court views the facts alleged in the complaint in
the light most favorable to plaintiff and construes the complaint liberally, accepting all factual
allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor.

M

See Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013). The Court interprets this
pro se plaintiff’s factual allegations to raise the strongest arguments that they suggest. See id.
“The court should freely give leave [to amend] when justice so requires.” Fed.R.Civ.P. 15(a)(2).
Moreover, a court should not dismiss a complaint without leave to amend at least once when a
liberal reading of the complaint gives any indication that a valid claim might be stated. See

-6-

Grullon, 720 F.3d at 139. Leave to amend, however, is not required where “the problem with
[plaintiff’s] causes of action is substantive” such that “better pleading will not cure it.” Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
Plaintiff’s claim in this Court for money damages and other relief for constitutional
violations committed by federal agents acting under color of federal law is properly brought under
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). A
N

Bivens action shares the same “practicalities of litigation” with claims under 42 U.S.C. § 1983 for
constitutional violations committed by state agents acting under color of state law; thus, federal
courts “have typically incorporated § 1983 law into Bivens actions.” Tavarez v. Reno, 54 F.3d
109, 110 (2d Cir. 1995). For purposes of this Memorandum-Decision and Order, the Court relies
on both Bivens and section 1983 case law.

A

Defendants seek dismissal on the ground that plaintiff’s claims are barred by application
of the doctrine of res judicata (claim preclusion). This argument lacks merit. Under the doctrine
of res judicata, a final judgment on the merits of an action precludes the parties or their privies
from relitigating issues that were or could have been raised in that action. See EDP Med.
Computer Sys. v. United States, 480 F.3d at 621, 624 (2d Cir. 2007). Defendants cite no authority
supporting the contention that the dismissal of plaintiff’s habeas corpus petition bars his Bivens

M

claims on res judicata grounds, nor is the Court aware of any.3 A Bivens claim that necessarily

3

The Court has found one unpublished Ninth Circuit decision issued in 1998, Brown v. Paige,
162 F.3d 1167 (Table), 1998 WL 756970 (9th Cir. 1998), which dismissed a Bivens action on alternative
grounds, one of which was the application of res judicata to the dismissal of the plaintiff’s petition under
28 U.S.C. § 2241. In support of dismissal on this ground, the Ninth Circuit cited Hawkins v. Risely, 984
F.2d 321, 325 (9th Cir. 1993), which concerned collateral estoppel, not res judicata, and Van Strum v.
Lawn, 940 F.2d 406, 409 (9th Cir. 1991), which stated only that section 1983 actions and Bivens actions
“are identical save for the replacement of a state actor under § 1983 by a federal actor under Bivens.” The
Brown case has never been cited, and the Court does not view it as authoritative.

-7-

implicates the validity or duration of an inmate’s confinement “is not cognizable” until the inmate
successfully challenges the validity or duration of that confinement by way of a habeas
proceeding. Tavarez, 54 F.3d at 110 (citing Heck v. Humphrey, 512 U.S. 477, 484-85 (1994));
accord Edwards v. Balisok, 520 U.S. 641, 645-48 (1997) (extending Heck rule to inmates’
challenges to prison disciplinary proceedings that resulted in loss of good time credits). Such a
Bivens claim does not accrue until the successful conclusion of the habeas proceeding, see Heck,
N

512 U.S. at 489-90; thus, it could not properly have been raised within the habeas proceeding. To
the extent that plaintiff in the case at bar seeks relief that implicates the validity of his disciplinary
penalty, and thus the duration of his confinement, his claims are not barred by res judicata. Nor
is there any basis to apply the doctrine to his other claims.
In support of their res judicata argument, defendants cite only two cases that could

A

arguably apply to the instant case: Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996), and
Burgos v. Hopkins, 14 F.3d 787, 792-93 (2d Cir. 1994). Kulak and Burgos, however, concern
collateral estoppel (issue preclusion), not res judicata (claim preclusion). Collateral estoppel
precludes a party from relitigating an issue that has been actually litigated and decided in a prior
action, provided that: (1) there is an identity of issue which has necessarily been decided in the
prior action and is decisive of the present action; and (2) there has been a full and fair opportunity

M

to contest the decision now said to be controlling. See Kulak, 88 F.3d at 71-72. Kulak and
Burgos applied the doctrine of collateral estoppel to preclude inmates from relitigating in section
1983 actions issues that had been decided in the inmates’ unsuccessful habeas proceedings.
Because collateral estoppel precludes relitigation of only those issues that have already been
litigated and decided, it does not bar relitigation of issues that could have been raised previously

-8-

but were not. Therefore, even if the doctrine of collateral estoppel were applied in the instant
case, it would not warrant dismissal of the entire complaint now before the Court. Moreover,
even where there is an identity of issues, collateral estoppel does not bar a plaintiff’s claims if he
can show he did not have a full and fair opportunity to litigate the issues in the prior proceeding.
Id. Whether plaintiff had a full and fair opportunity cannot be resolved on this Rule 12(b)(6)
motion.4 Dismissal on the ground of res judicata or collateral estoppel is denied.
N

The Court now considers the merits of plaintiff’s section 1983 claims.
First Cause of Action
The first cause of action claims that defendants filed the incident report (#1951307)
underlying the disciplinary proceeding in issue in retaliation for plaintiff’s exercise of his First
Amendment rights. To state a First Amendment retaliation claim, a plaintiff must allege “(1) that

A

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.” Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004). A finding in plaintiff’s
favor would necessarily imply that there was no proper non-retaliatory basis for the misbehavior
report and subsequent disciplinary proceeding and punishment.5 Such a finding necessarily
implicates the duration of plaintiff’s confinement and thus is barred by Heck and Balisok.

M

Because plaintiff’s habeas corpus petition was denied – and apparently not appealed – he cannot

4

Plaintiff might well succeed in making such a showing; he was unrepresented, and the habeas
court held no evidentiary hearing. Compare Kulak and Burgos, both of which concerned the collateral
estoppel effect of issues determined after full hearings.
5

There is no constitutional violation where a misbehavior report is motivated by a sufficient
proper reason, even if it was also motivated by an improper reason. See Lowrance v. Achtyl, 20 F.3d 529,
535 (2d Cir. 1994).

-9-

now collaterally attack the duration of his confinement by way of this Bivens action. See Balisok,
520 U.S. at 645-48. Therefore, repleading this cause of action would be futile; better pleading
will not cure it. The first cause of action, claiming that the filing of incident report #1951307 was
retaliatory, is dismissed without leave to replead.
Second Cause of Action
The second cause of action may be read as challenging the conditions of plaintiff’s
N

confinement in the special housing unit (“SHU”) resulting from the disciplinary proceeding based
on incident report #1951307. Judge Trimble’s dismissal of the habeas petition forecloses plaintiff
from challenging the SHU sentence itself on the ground that it was based on an invalid
disciplinary sanction. See Heck and Balisok. Any such claim is dismissed without leave to
replead on the ground of futility.

A

Plaintiff is not necessarily foreclosed, however, from obtaining relief based on the
conditions he experienced while in SHU. Although he is precluded by the outcome of his habeas
proceeding from claiming that his SHU confinement denied him a liberty interest without due
process, he may be able to establish an Eighth Amendment claim of cruel and unusual
punishment. The Second Circuit explains:

M

To demonstrate that the conditions of his confinement constitute cruel and
unusual punishment, the plaintiff must satisfy both an objective test and a
subjective test. First, the plaintiff must demonstrate that the conditions of his
confinement result in unquestioned and serious deprivations of basic human
needs. Second, the plaintiff must demonstrate that the defendants imposed
those conditions with deliberate indifference.
Jolly v. Coughlin, 76 F.3d 468, 480 (2d Cir. 1996) (citations and quotation marks omitted).
Petitioner’s allegations fail to meet either test sufficiently to allege a plausible claim.
In view of plaintiff’s pro se status, the Court gives him an opportunity to replead this
-10-

claim. The Court adds that, in addition to addressing the two tests set forth in Jolly, plaintiff
should include allegations supporting a finding of personal involvement of each defendant against
whom he wishes to pursue this claim. With respect to supervisory defendants, the Second Circuit
has construed personal involvement “to mean direct participation, or failure to remedy the alleged
wrong after learning of it, or creation of a policy or custom under which unconstitutional
practices occurred, or gross negligence in managing subordinates.” Black v. Coughlin, 76 F.3d
N

72, 74 (2d Cir. 1996). If plaintiff chooses to replead an Eighth Amendment claim based on the
conditions of his SHU confinement, the Court recommends that he also plead whether and how he
exhausted his administrative remedies regarding SHU conditions.
Third Cause of Action
The third cause of action alleges defendants retaliated against plaintiff by confiscating his

A

property, including his legal mail. A prison official’s conduct in confiscating, losing, or
destroying an inmate’s property may constitute an adverse action for purposes of a retaliation
claim. See, e.g., Mateo v. Bristow, 2013 WL 3863865, *5 (S.D.N.Y. Jul. 16, 2013). As noted
above, to state a First Amendment retaliation claim, a plaintiff must allege “(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.” Gill,

M

389 F.3d at 380. Depending on the circumstances, confiscation of legal mail may qualify as an
adverse action. Although he lists a number of lawsuits he has brought, letters of complaint he has
written to governmental officials and entities, and grievances he has filed, plaintiff does not
specify which constitute a protected action in the context of this claim. Nor does he specify
which of the many defendants may have known of any particular lawsuit, letter, or grievance;

-11-

which specific defendants participated in the adverse action; or on what basis plaintiff alleges a
causal connection between a particular lawsuit, letter, or grievances and the confiscation of his
mail or other property. Nor does he set forth a basis for imposing liability on the supervisory
defendants. Plaintiff does not plausibly plead a retaliation claim based on confiscation of his mail
or other property.
The allegation that prison officials intentionally confiscated plaintiff’s legal mail might
N

also support a claim of unconstitutional denial of plaintiff’s access to the courts. See Franco v.
Kelly, 854 F.2d 584, 588 (2d Cir. 1988). To state a claim for denial of access to the courts,
including a claim based on interference with legal mail, plaintiff must allege actual injury, i.e.,
that the defendants’ actions hindered his efforts to pursue a particular legal claim. See Davis v.
Goord, 320 F.3d 346, 351 (2d Cir. 2003). Accordingly, without identification of the underlying

A

action that was hindered, and the manner in which it was hindered, plaintiff does not properly
plead actual injury, and thus does not plead a First Amendment violation. See Christopher v.
Harbury, 536 U.S. 403, 415 (2002) (“[T]he underlying cause of action ... is an element that must
be described in the complaint, just as much as allegations must describe the official acts
frustrating the litigation.”). Plaintiff fails to satisfy this requirement.6 Moreover, plaintiff does
not specify how each named defendant was personally involved in this alleged deprivation.

M
6

Plaintiff asserts that, due to the misconduct of defendants Helms, Poirier, and Schults, his
“Petition for Rehearing and/or Suggestion for Rehearing En Banc” in United States v. Marino, First
Circuit Appeal No. 09-1854, was not filed until December 21, 2009 and was dismissed as untimely on
January 8, 2010. A review of the docket in that appeal establishes that the First Circuit’s January 8, 2010
order striking the petition states as follows: “The petition for panel rehearing and for rehearing en banc is
stricken as unauthorized. See Lykus v. Corsini, 565 F.3d 1 (1st Cir. 2009); 28 U.S.C. § 2244(b)(3)(E).”
Thus, the petition was stricken not because it was untimely, but because a petition for rehearing or
rehearing en banc of an application for leave to file second or successive habeas petition is barred by 28
U.S.C.A. § 2244(b)(3)(E).

-12-

Plaintiff does not plausibly plead a claim for denial of access to the courts. The third cause of
action is dismissed with leave to replead.
Fourth Cause of Action
Plaintiff claims that defendants retaliated against him by manipulating his custody and
security points from 11 to 24 points, resulting in his transfer to United States Penitentiary Pollock,
Louisiana, a facility which “has a history of 15 murders, over 300 stabbings, over 300 knife shots
N

& known as a ‘Lock Down’ institution preventing Marino from access to the Courts, Law Library
& the exercise of his Due Process, also in violations of the 8th Amendment’s Cruel & Unusual
Punishment.” It is not clear what protected action underlies this claim. As for an adverse action,
some courts have indicated that a prison transfer may constitute an adverse action where, as here,
a plaintiff claims he was transferred to a facility imposing more onerous conditions. See, e.g.,

A

Tuitt v. Chase, 2013 WL 877439, *9 (“The transfer of a prisoner is not considered an ‘adverse
action’ unless it results in the prisoner being subjected to more onerous conditions.”). Here, even
assuming that plaintiff’s transfer constitutes an adverse action, plaintiff pleads no basis for
finding the transfer was retaliatory. Attached to the complaint is a form dated April 27, 2006
showing his classification as 11, and a form dated February 2, 2011 showing his classification as
24. These forms, showing an increase in plaintiff’s security classification at an unspecified time

M

during a period of almost five years, do not support a finding of a causal connection between
whatever protected act plaintiff relies on and the change in his classification. Moreover, plaintiff
appears to claim that his security classification was revised shortly after the December 3, 2009
incident, in which case the December 3, 2009 incident and the December 15, 2009 disciplinary
determination would provide defendants with a proper non-retaliatory ground for raising

-13-

plaintiff’s security points, regardless of whether they also had a retaliatory motive, thus defeating
this claim. See Lowrance v. Achtyl, 20 F.3d 529, 535 (2d Cir. 1994) (stating that where adverse
action “is motivated by both proper and improper reasons, the action may be sustained if it would
have been taken even in the absence of the improper reason.”). This cause of action is dismissed
with leave to replead. If plaintiff chooses to replead, he should spell out what protected action he
is relying on, which of the defendants he claims is responsible for the reclassification, and the
N

basis for alleging a causal connection between the protected action and the reclassification.
Fifth Cause of Action
The fifth cause of action alleges defendants intentionally placed plaintiff in their “Diesel
Therapy Program” (that is, transferred him frequently) from December 3, 2009 through July 13,
2010. As a result, plaintiff claims, he “was without his legal mail & legal work.” He adds: “In

A

fact Marino did not receive his legal work until August 2010. Marino received some of his ‘Legal
Mail’ from 3-6 months later, some was lost, some was destroyed, some was sent back to sender.”
As discussed above in the context of the third cause of action, to state a claim for denial of access
to the courts based on interference with legal mail, plaintiff must allege actual injury, that is, that
the defendants’ actions hindered his efforts to pursue a particular legal claim. See Davis, 320
F.3d at 351. Accordingly, without identification of the underlying action which was hindered,

M

and the manner in which it was hindered, plaintiff does not properly plead actual injury. Thus, he
does not plead a First Amendment violation in this respect. See Christopher, 536 U.S. at 415.
Moreover, plaintiff does not specify how most of the named defendants were involved in this
alleged deprivation, nor does he set forth a basis for supervisory liability. Plaintiff does not
plausibly plead a claim for denial of access to the courts. The fifth cause of action is dismissed

-14-

with leave to replead.
Sixth Cause of Action
The sixth cause of action is for intentional infliction of emotional distress, a New York
State common-law claim. The Prisoner Litigation Reform Act, 42 U.S.C. § 1997e(e), provides:
“No Federal civil action may be brought by a prisoner confined in a jail, prison, or other
correctional facility, for mental or emotional injury suffered while in custody without a prior
N

showing of physical injury or the commission of a sexual act.”7 Plaintiff’s claim for intentional
infliction of emotional distress is barred as a matter of law by section 1997e(e). See Thompson v.
Carter, 284 F.3d 411, 417-18 (2d Cir. 2002). The sixth cause of action is dismissed without
prejudice.
Equal Protection
In his objection to the Report-Recommendation and Order, plaintiff refers to an equal

A

protection “class of one” claim. To succeed on such a claim, a plaintiff must establish that no
rational person could regard plaintiff’s circumstances to differ from those of a comparator to a
degree that would justify the differential treatment on the basis of a legitimate government policy.
See Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 59-60 (2d Cir. 2010). There is
nothing in plaintiff’s papers to suggest that he has a viable class of one claim. Any such claim is
M

dismissed without prejudice.
Due Process
In the body of the complaint, plaintiff repeatedly refers to the Fifth Amendment right to
7

Section 1997e(e) does not, however, warrant dismissal of the entire complaint. The absence of
physical injury does not restrict a plaintiff’s ability to recover nominal damages, punitive damages, or
injunctive or declaratory relief for constitutional wrongs. See Thompson v. Carter, 284 F.3d 411, 417-18
(2002).

-15-

due process. Any due process claim plaintiff may assert based on the disciplinary proceeding
regarding the December 3, 2009 incident lacks merit as a matter of law because it is barred by
Heck and Balisok. Any due process property interest claim regarding the items allegedly
confiscated from plaintiff’s cell on December 3, 2009 lacks merit as a matter of law because
plaintiff had statutory post-deprivation remedies available. See 31 U.S.C. §§ 3723(a)(1); 3724. If
plaintiff intended to plead either of these claims, they are dismissed without leave to replead on
N

the ground of futility.
Plaintiff also refers to his Sixth Amendment due process rights. It appears that he is
claiming that the procedures utilized in the disciplinary hearing violated his Sixth Amendment
rights to be confronted with the witnesses against him, to have compulsory process for obtaining
witnesses in his favor, and to have the assistance of counsel for his defense. A prison disciplinary

A

proceeding is not, however, a criminal prosecution, and the Sixth Amendment does not apply.
See Sash v. Zenk, 439 F.3d 61, 63 (2d Cir. 2006) (“Prison disciplinary hearings are not treated as
‘criminal’ for purposes of the Sixth Amendment.”). In any event, any such claim would be barred
by Heck and Balisok. Any Sixth Amendment claims based on the procedures utilized in the
disciplinary proceeding are dismissed without leave to replead on the ground that they are futile.
Fourth Amendment

M

Plaintiff also cites to the Fourth Amendment. Plaintiff cannot maintain a Fourth
Amendment claim that he was subjected to an unreasonable cell search, because “the Fourth
Amendment proscription against unreasonable searches does not apply within the confines of the
prison cell.” Hudson v. Palmer, 468 U.S. 517, 526 (1984). Any Fourth Amendment claim based
on the fact that his cell was searched on December 3, 2009 is dismissed without leave to replead

-16-

on the ground of futility.
Other Allegations
In various parts of the complaint, plaintiff refers to lawsuits he has brought, letters he has
written, and grievances he has filed. In this rambling, single-spaced 34-page complaint, which
contains more than 100 numbered paragraphs and an additional 20 pages of exhibits, these
references are insufficient to apprise the Court of what additional claims plaintiff may wish to
N

assert. All claims not specifically addressed above are dismissed with leave to replead. If
plaintiff decides to file an amended complaint, the Court recommends that he avoid inserting
repetitious or irrelevant allegations.
CONCLUSION
The complaint is dismissed with leave to replead, except that, as explained above, certain

A

claims are dismissed without leave to replead on the ground of futility. If plaintiff decides to
serve and file an amended complaint, he is advised that the amended complaint will completely
supersede and replace the initial complaint. Therefore, the amended complaint should contain all
claims plaintiff wishes to pursue. Any defendant not named in the amended pleading will no
longer be a defendant in the action. If plaintiff claims that his rights were violated by more than
one defendant, or on more than one occasion, he should include a corresponding number of

M

paragraphs in his amended complaint for each such allegation, with each paragraph specifying the
alleged act of misconduct; the date on which such misconduct occurred; the names of each and
every individual who participated in such misconduct; where appropriate, the location where the
alleged misconduct occurred; and the nexus between such misconduct and the rights allegedly
infringed.

-17-

Any amended complaint shall be filed and served on or before the date set forth below.
Plaintiff is warned that if he fails to file and serve an amended complaint in compliance with this
Memorandum-Decision and Order on or before that date, the case will be dismissed.
It is therefore
ORDERED that the Report-Recommendation and Order (Dkt. No. 47) is accepted insofar
as it summarizes the facts and procedural background of this case, and otherwise rejected; and it
N

is further
ORDERED that defendants’ motion to dismiss (Dkt. No. 34) is granted as set forth herein;
and it is further
ORDERED that the complaint is dismissed with leave to replead in accordance with this
Memorandum-Decision and Order; and it is further

A

ORDERED that if plaintiff does not submit a timely amended complaint, the matter will
be reviewed by this Court for judgment dismissing the action; and it is further
ORDERED that if plaintiff does submit a timely amended complaint, the case shall be
returned to the magistrate judge for further proceedings; and it is further
ORDERED that ANY AMENDED COMPLAINT SHALL BE FILED AND SERVED

M

ON OR BEFORE JUNE 6, 2014; and it is further
ORDERED that PLAINTIFF IS WARNED THAT IF HE FAILS TO FILE AND
SERVE AN AMENDED COMPLAINT IN COMPLIANCE WITH THIS
MEMORANDUM-DECISION AND ORDER ON OR BEFORE JUNE 6, 2014, THE CASE
WILL BE DISMISSED; and it is further
ORDERED that the Clerk of the Court is directed to serve copies of this Memorandum-

-18-

Decision and Order in accordance with the Local Rules of the Northern District of New York.

IT IS SO ORDERED.

Date: May 6, 2014
Syracuse, New York

N
A
M

-19-