Marino v. Watts et al
Filing
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ORDERED that defendants motion to dismiss (Dkt. No. 69) be DENIED to the extent it seeks to dismiss plaintiffs retaliation claims for failure to state a claim and GRANTED as to defendant Watts; Defendant Watts is terminated as a defendant in this action. Signed by Senior Judge Norman A. Mordue on 9/29/16. (jlm)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
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VINCENT MICHAEL MARINO,
Plaintiff,
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9:12-CV-801 (NAM/DJS)
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HARRELL WATTS, General Counsel/BOP/DOJ,
DEBORAH SCHULT, Warden/BOP/DOJ, ROBERT
HELMS, SIS Lieutenant/BOP/DOJ, MS. SEPANEK,
Counselor/BOP/DOJ, MR. LUCAS, Case
Manager/BOP/DOJ,
Defendants.
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APPEARANCES:
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Vincent Michael Marino
14431-038
FCI HAZELTON
PO Box 5000
Bruceton Mills, West Virginia 26525
Plaintiff, pro se
Hon. Eric T. Schneiderman, Attorney General of the State of New York
Karen Folster Lesperance, Esq., Assistant New York State Attorney
James T. Foley U.S. Courthouse
445 Broadway, Room 218
Albany, New York 12207
Attorney for Defendants
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Hon. Norman A. Mordue, Senior U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
Plaintiff, an inmate in the federal correctional system, brought this civil rights action
pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S.
388 (1971). Defendants moved (Dkt. No. 69) to dismiss the action, arguing that the Court should
decline to recognize a Bivens remedy for a First Amendment retaliation claim, the only claim that
survived initial review. Defendants also argued that all claims against defendant Watts should be
dismissed as he was not personally involved in the alleged retaliation. Upon referral pursuant to
28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c), United States Magistrate Judge Daniel J.
Stewart issued a Report-Recommendation and Order (Dkt. No. 79) recommending that the motion
be granted as to defendant Watts, but otherwise denied. Plaintiff filed a letter agreeing with the
Report-Recommendation. (Dkt. No. 82). Defendants have filed an objection to this ReportRecommendation. (Dkt. No. 83). Plaintiff has filed an opposition to defendants’ objections.
(Dkt. No. 85). Given the extensive nature of defendants’ objections, the Court conducts a de novo
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review. See 28 U.S.C. § 636(b)(1)(C). As set forth below, the Report-Recommendation and
Order is adopted in its entirety.
BACKGROUND
The factual background has been set forth in detail in both Judge Stewart’s ReportRecommendation (Dkt. No. 79) and in the previous Report-Recommendations and MemorandumA
Decision and Orders. (See Dkt. Nos. 47, 49, 56, 62). Therefore, the Court assumes familiarity
with the factual background and only briefly summarizes it here as necessary to its decision.
Plaintiff alleges that on April 8, 2008, while incarcerated at Ray Brook Federal
Correctional Institute (“Ray Brook”), he provided a sworn affidavit in support of a fellow
inmate’s anticipated litigation. Plaintiff’s affidavit was filed as part of the inmate’s federal
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pleading. According to plaintiff, defendants Helms and Poirier found a copy of this affidavit in
plaintiff’s cell on December 2, 2009. The next day, December 3, 2009, defendants Helms and
Poirier planted betting slips in his cell and confiscated unused stamps, and also found ten gallons
of homemade intoxicants. Plaintiff was subsequently 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, plaintiff was found
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guilty. Plaintiff was sanctioned with sixty days in disciplinary segregation, lost thirty-six days of
good time jail credit, and was restricted from using the telephone, visitation, and commissary.
While plaintiff was in SHU, defendants Helms and Schult told him that he was “going to
rot in this SHU for extra punishment for filing a[n] Affidavit on our staff.” Plaintiff further
claims that his security classification was changed from eleven to twenty-four points, that he was
transferred to a facility with a “history of over 15 murders, over 300 stabbings & over 300 knife
shots[,]” placed in a Diesel Therapy Program, and that his legal mail, legal work, and Civil
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Procedure Book were confiscated all following the discovery of his affidavit.
As noted above, defendants moved to dismiss on the ground that the Court should not
recognize a Bivens remedy under the First Amendment, and, alternatively, that the claims against
defendant Watts be dismissed for a lack of personal involvement, and Judge Stewart has
recommended denying the motion to dismiss as to the Bivens argument, and granting as to
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defendant Watts. Neither plaintiff nor defendants object to the portion of the ReportRecommendation and Order dismissing defendant Watts. The Court further agrees with Judge
Stewart’s thorough analysis on the Bivens argument.
DISCUSSION
As Judge Stewart explained in detail, in Bivens, the Supreme Court recognized “an
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implied private action for damages against federal officers alleged to have violated a citizen’s
constitutional rights,” and has since been very reluctant to extend Bivens to new contexts. (Dkt.
No. 79 at 6-7); see also Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001) (“In 30 years of
Bivens jurisprudence we have extended its holding only twice, to provide an otherwise
nonexistent cause of action against individual officers alleged to have acted unconstitutionally, or
to provide a cause of action for a plaintiff who lacked any alternative remedy for harms caused by
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an individual officer’s unconstitutional conduct.”) (emphasis in original).
Under Second Circuit law, the first step in the analysis, is to determine whether allowing
the action to proceed would extend Bivens to a new context. Arar v. Ashcroft, 585 F.3d at 572.
Judge Stewart concluded that plaintiff’s First Amendment retaliation claim does, indeed, present a
new Bivens context.1 (Dkt. No. 79 at 9-10) (citing Turkmen v. Hasty, 789 F.3d 218 (2d Cir. 2015)
(declining to extend Bivens to the free exercise claims that plaintiffs were denied copies of the
Koran and Halal food and that their prayers were interfered with, brought by Muslim and Arab
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citizens arrested and detained in the post-9/11 investigation)).
After concluding that the claim raises a new Bivens context, Judge Stewart then proceeded
to consider: 1) whether there is an alternative remedial scheme available to plaintiff; and 2)
whether there are any special factors that counsel hesitation before creating a Bivens remedy in
this context. Arar v. Ashcroft, 585 F.3d at 572. Judge Stewart concluded that neither the
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alternative remedies nor any special factors weighed against allowing plaintiff’s action to
proceed, and recommended denying plaintiff’s motion to dismiss on this ground. (Dkt. No. 79 at
17-18). The Court adopts with Judge Stewart’s well-reasoned analysis.
The Court agrees with Judge Stewart’s discussion regarding the lack of an alternative
comprehensive remedial scheme established by Congress that would provide “roughly similar”
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incentives and compensation. (Dkt. No. 79 at 11-16). The Court adds that although defendants
argue that the Supreme Court’s decision in Malesko held that the Bureau of Prison’s
Administrative Remedy Program (“ARP”) “constituted a sufficient alternative remedy precluding
the need to extend Bivens,” (Dkt. No. 83 at 7), this Court does not read the Malesko decision so
broadly. The plaintiff in Malesko sought recovery against a private corporation operating a
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Defendants agree with this portion of the Report-Recommendation. (Dkt. No. 83 at 3).
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halfway house under contract with the Bureau of Prisons, not against individual officers. See
generally Malesko, 534 U.S. 61. In concluding that Malesko did not present a situation
warranting extension of Bivens to a new context, the Supreme Court noted that inmates in
plaintiff’s position had access to the ARP, and went on to explain that “unlike the Bivens remedy,
which we have never considered a proper vehicle for altering an entity’s policy, injunctive relief
has long been recognized as the proper means for preventing entities from acting
unconstitutionally.” Id. at 74 (emphasis added). The Supreme Court, therefore, did not discuss,
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in Malesko, a situation such as the plaintiff’s where he is seeking a cause of action against the
individual officers. Similarly, the Court rejects defendants’ argument that the Supreme Court’s
decision in Minneci v. Pollard, 132 S. Ct. 617 (2012) compels the conclusion here that plaintiff’s
available remedies are sufficient to conclude that Bivens should not be extended to this context.
While it is true that the Minneci court noted that state-law remedies and a potential Bivens remedy
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“need not be perfectly congruent,” in Minneci, the Court addressed a claim against employees of
a privately operated federal prison who had state-tort law remedies available against a private
firm, unlike prisoners who “ordinarily cannot bring state-law tort actions against employees of
the Federal Government.” Minneci v. Pollard, 132 S. Ct. at 623 (emphasis in original). Here,
plaintiff’s retaliation claims lie against government employees, not employees of a private firm.
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The Court likewise agrees with Judge Stewart’s discussion regarding whether special factors
counsel hesitation.
CONCLUSION
Therefore, the Report-Recommendation and Order is adopted in its entirety.
It is therefore
ORDERED that the Order and Report-Recommendation (Dkt. No. 79) is accepted; and it
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is further
ORDERED that defendants’ motion to dismiss (Dkt. No. 69) be DENIED to the extent it
seeks to dismiss plaintiff’s retaliation claims for failure to state a claim and GRANTED as to
defendant Watts; and it is further
ORDERED that defendant Watts be terminated as a defendant to this action; and it is
further
ORDERED that the Clerk of the Court is directed to serve copies of this MemorandumN
Decision and Order in accordance with the Local Rules of the Northern District of New York.
IT IS SO ORDERED.
Date:
September 29, 2016
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