Curtis v. Fischer et al

Filing 48

MEMORANDUM-DECISION AND ORDER: ORDERED that the Report-Recommendation (Dkt. No. 43 ) is adopted in part and rejected in part as set forth herein. ORDERED that plaintiff file a third amended complaint within thirty (30) days of the filing date of this Decision and Order in which he may assert claims regarding his meals, his due process claim regarding the combined disciplinary hearing, and his equal protection claim. Any amended complaint submitted in response to this Decision and Order mu st identify by name the individuals alleged to have been personally involved in the acts of misconduct or wrongdoing complained of and must set forth a short and plain statement of the facts plaintiff relies on in support of his claim that the def endants' conduct violated his constitutional rights. Plaintiff's third amended complaint, which shall supersede and replace in its entirety the second amended complaint, must be signed by plaintiff and must be a complete pleading which s ets forth all of the claims that plaintiff wants this Court to consider as a basis for awarding relief herein. ORDERED that in the event plaintiff files a signed third amended complaint within thirty (30) days in accordance with this Order, the C lerk shall return the file to this Court for further review. ORDERED that in the event plaintiff fails to file a signed third amended complaint within thirty (30) days in accordance with this Order, defendants Fischer, Haug, and Jacobsen shall b e terminated from this action, and defendants Smith, Gardner, and Venettozzi shall answer plaintiff's due process claim regarding the combined disciplinary hearing in his second amended complaint within twenty-one (21) days. ORDERED that the following claims are dismissed with prejudice: (1) the due process claim regarding SHU confinement; (2) the Eighth Amendment claim regarding SHU confinement; (3) the First Amendment and equal protection claims regarding reading materials; and (4) the retaliation claim. Signed by Senior Judge Norman A. Mordue on 9/30/15. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
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DONALD LEE CURTIS,
Plaintiff,
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9:12-CV-1140 (NAM/TWD)

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DONALD HAUG, F.S.A., Upstate Correctional
Facility; BRIAN FISCHER, Commissioner, NYS
DOCCS; CATHERINE JACOBSEN, Asst.
Commissioner for Programs; LT. G. GARDNER,
Shawangunk Corr. Facility; J. SMITH,
Superintendent Shawangunk Corr. Facility;
DOMINICK VENETTOZZI, Acting Direction of
Special Housing Disciplinary Programs,
Defendants.
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APPEARANCES:

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Donald Lee Curtis
Din # 86-A-3111
Upstate Correctional Facility
P.O. Box 2001
Malone, NY 12953
Plaintiff, Pro Se
Hon. Eric T. Schneiderman, Attorney General for the State of New York
Richard Lombardo, Esq., Assistant Attorney General
The Capitol
Albany, NY 12224
Counsel for Defendants

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Hon. Norman A. Mordue, Senior U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
In this pro se inmate civil rights case under 42 U.S.C. § 1983, United States Magistrate
Judge Thérèse Wiley Dancks has issued a Report-Recommendation (Dkt. No. 43) recommending
that the Court, upon screening plaintiff’s second amended complaint,1 dismiss without leave to
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Plaintiff brought this civil rights action alleging that defendants violated his constitutional
rights by holding a combined disciplinary hearing on two separate misbehavior reports without informing
him, forcing him to choose between the kosher meal required by his religion and the meal required by his

amend plaintiff’s due process claim regarding special housing unit (“SHU”) confinement and his
Eight Amendment claims regarding SHU confinement; dismiss as abandoned plaintiff’s claims
regarding meals, reading materials, and retaliation; terminate defendants Fischer, Haug, and
Jacobsen from the action; and direct defendants Smith, Gardner, and Venettozzi to answer the due
process claims regarding the combined disciplinary hearing.
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court reviews de novo those parts of a report
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and recommendation to which a party specifically objects. Here plaintiff has filed an objection
and a supplemental objection (Dkt. Nos. 44, 45) objecting to the dismissal the majority of these
claims. As set forth below, the Report-Recommendation and Order is adopted in part and rejected
in part.
A.

Claims Regarding Meals

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In her Report-Recommendation, Judge Dancks recommended dismissal of plaintiff’s
claims regarding the meals he received, finding that he did not assert these claims in his Second
Amended Complaint and determining that he had decided not to pursue these claims. (Dkt. No. 43
at 11). Judge Dancks noted that she previously recommended dismissing plaintiff's claim under
the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc,
regarding meals as moot because he was no longer housed at Upstate Correctional Facility. This

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Court granted plaintiff leave to name any individuals involved in this alleged RLUIPA violation at
Green Haven, where he was housed at the time, in his second amended complaint. (Dkt. No. 36 at

medical needs, censoring his reading materials, confining him to the Special Housing Unit (“SHU”), and
retaliating against him for filing grievances. (Dkt. No. 1). Defendants moved to dismiss the original
complaint. (Dkt. No. 20). In opposition, plaintiff included a proposed amended complaint. (Dkt. No. 231). After review of the amended complaint, Judge Dancks recommended dismissal of certain claims.
(Dkt. No. 32). Plaintiff objected. (Dkt. No. 33). In light of plaintiff’s claims in his objection, this Court
granted him leave to file a second amended complaint. (Dkt. No. 36).

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2-3). Judge Dancks correctly observes that plaintiff did not include this claim in his second
amended complaint. However, in his objection, (Dkt. No. 44), plaintiff explains that this was
because he was "receiving Hot Kosher meals" while housed at Green Haven. Plaintiff states that
he has since been returned to Upstate Correctional Facility as of March 26, 2015. Therefore, based
on this change, the Court will reject the portion of the Report-Recommendation that recommends
dismissal of this claim. Plaintiff will be permitted to file a third amended complaint to include a
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claim for injunctive relief under RLUIPA regarding his meals.
Likewise, Judge Dancks found that plaintiff had decided not to pursue his Eighth
Amendment and First Amendment claims regarding meals. (Dkt. No. 43 at 12, 16). For the same
reasons explained above, this Court will permit plaintiff to include these claims regarding meals in
his third amended complaint.

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B.

Due Process Claim Regarding Combined Disciplinary Hearing
Judge Dancks recommended that plaintiff be permitted to proceed on his claim regarding

the combined disciplinary hearing against defendants Smith, Gardner, and Venettozzi. This Court
adopts Judge Dancks’ recommendation. Therefore, plaintiff should include this claim in his third
amended complaint.
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C.

Equal Protection Claim
Plaintiff also claims in his objections that the Court has never addressed his claim under the

Fourteenth amendment claim that the “white inmate written up for the same conduct” was treated
more favorably than plaintiff. (Dkt. No. 45 at 2-3). In his second amended complaint, plaintiff
asserts that “as plaintiff is African American and the other inmate was white and considered the
C.O.’s pet [] the disposition reeked of a double standard.” (Dkt. No. 39 at 7). In light of his pro se

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status, the court will permit plaintiff to include this claim in his third amended complaint.
D.

Claims Regarding SHU Confinement
The Court has thoroughly reviewed plaintiff’s objections and Judge Dancks’ report-

recommendation with respect to his due process and Eighth Amendment claims regarding his SHU
confinement and finds no error. These claims are dismissed without leave to amend, and should
not be included in the third amended complaint.
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E.

Abandoned Claims
Plaintiff confirms in his objection that, as noted by Judge Dancks, he abandons his

retaliation claim and his claim regarding reading materials. (Dkt. No. 45 at 7). Therefore, the
Court adopts Judge Dancks’ recommendation and dismisses these claims and they should not be
included in the third amended complaint.
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CONCLUSION
It is therefore
ORDERED that the Report-Recommendation (Dkt. No. 43) is adopted in part and rejected
in part as set forth herein; and it is further
ORDERED that plaintiff file a third amended complaint within thirty (30) days of the

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filing date of this Decision and Order in which he may assert claims regarding his meals, his due
process claim regarding the combined disciplinary hearing, and his equal protection claim. Any
amended complaint submitted in response to this Decision and Order must identify by name the
individuals alleged to have been personally involved in the acts of misconduct or wrongdoing
complained of and must set forth a short and plain statement of the facts plaintiff relies on in
support of his claim that the defendants' conduct violated his constitutional rights. Plaintiff's third

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amended complaint, which shall supersede and replace in its entirety the second amended
complaint, must be signed by plaintiff and must be a complete pleading which sets forth all of the
claims that plaintiff wants this Court to consider as a basis for awarding relief herein; and it is
further
ORDERED that in the event plaintiff files a signed third amended complaint within thirty
(30) days in accordance with this Order, the Clerk shall return the file to this Court for further
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review; and it is further
ORDERED that in the event plaintiff fails to file a signed third amended complaint within
thirty (30) days in accordance with this Order, defendants Fischer, Haug, and Jacobsen shall be
terminated from this action, and defendants Smith, Gardner, and Venettozzi shall answer
plaintiff’s due process claim regarding the combined disciplinary hearing in his second amended

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complaint within twenty-one (21) days; and it is further
ORDERED that the following claims are dismissed with prejudice: (1) the due process
claim regarding SHU confinement; (2) the Eighth Amendment claim regarding SHU confinement;
(3) the First Amendment and equal protection claims regarding reading materials; and (4) the
retaliation claim; and it is further

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ORDERED that the Clerk shall serve a copy of this Decision and Order on plaintiff by
regular mail.
IT IS SO ORDERED.
Date: September 30, 2015

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