Kimbrough v. Fischer et al
Filing
73
MEMORANDUM-DECISION AND ORDER: ORDERED that Magistrate Judge Dancks' September 29, 2014 62 Report-Recommendation and Order is ACCEPTED in its entirety for the reasons stated therein. ORDERED that Magistrate Judge Dancks' October 21, 2 014 65 Report-Recommendation and Order is ACCEPTED in its entirety for the reasons stated therein. ORDERED that Defendants' motion for summary judgment, see Dkt. No. 47 , is GRANTED with respect to Plaintiff's (1) First Amendment claims against Defendants Hai and Abate; (2) equal protection claims against Defendants Hai, McCarthy, and Fauss; and (3) Eighth Amendment claims against Defendants Hai, Abate, Fauss, Prack and Fischer; and is DENIED in all other respects. ORDERED that Plaintiff's motion for summary judgment, see Dkt. No. 49 , is GRANTED with respect to his due process claims against Defendants Fauss and Prack and is DENIED with regard to his other claims as moot. ORDERED that, on or before March 17, 2016 , each party shall file a memorandum of law, not to exceed ten (10) pages, addressing the issue of the appropriate relief that Plaintiff could receive on his due process claims against Defendants Fauss and Prack under the PLRA and the best method for determining that relief. Signed by Senior Judge Frederick J. Scullin, Jr on 2/18/16. (served on plaintiff by regular mail with copies of the unpublished cases cited herein) (alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________________
MELVIN KIMBROUGH,
Plaintiff,
v.
9:13-CV-100
(FJS/TWD)
BRIAN FISCHER, Commissioner of NYS
DOCCS; ALBERT PRACK, Acting Director
of S.H.U., DOCCS; T. FAUSS, Educational
Supervisor, C.H.O., Mohawk Correctional
Facility; ABATE, Lieutenant/Watch Commander,
Auburn Correctional Facility; J. HAI,
Correctional Officer, C.I.U., Auburn Correctional
Facility; and MCCARTHY, Captain, Acting Deputy
Superintendent of Security, Auburn Correctional
Facility,
Defendants.
__________________________________________________
APPEARANCES
OF COUNSEL
MELVIN KIMBROUGH
00-A-2134
Attica Correctional
Box 149
Attica, New York 14011
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants
SCULLIN, Senior Judge
RACHEL M. KISH, AAG
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Pending before the Court are Magistrate Judge Dancks' September 29, 2014, and October 21,
2014 Report-Recommendations and Orders, see Dkt. Nos. 62, 65, and the parties' objections thereto,
see Dkt. Nos. 66, 67, 68.
II. BACKGROUND
Plaintiff is a prison inmate entrusted to the care and custody of the New York State
Department of Corrections and Community Supervision ("DOCCS"). At the times relevant to the
claims in this action, Plaintiff was housed at Auburn Correctional Facility and Mohawk Correctional
Facility.
In July 2003, Plaintiff was housed at Upstate Correctional Facility, where he ordered and
received a pamphlet entitled "Black Nationalism," which officials at Upstate Correctional Facility
allowed him to possess. One month later, he was transferred to Auburn Correctional Facility. On
June 6, 2010, Plaintiff was informed that he would be transferred to a medium security facility. The
next day, Plaintiff passed "an abundance of papers," which included Black Nationalist literature, to
another inmate to discard. Defendant Hai confiscated the papers from the other inmate.
On June 8, 2010, Plaintiff arrived at Mohawk Correctional Facility and was immediately
placed in solitary confinement without an explanation. On June 9, 2010, Plaintiff was issued a
misbehavior report that charged him with violating Rule 105.13, Unauthorized Organizations; Rule
105.14, Unauthorized Organizational Activities; Rule 113.22, Possessing Prohibited Articles; and
Rule 114.10, Smuggling.
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On June 11, 2010, Defendant Fauss commenced a Tier III disciplinary hearing to address the
charges contained in the misbehavior report. Defendant Faust adjourned the hearing to allow
Plaintiff to receive assistance, a rule book, and his personal property, including receipts for the
allegedly unauthorized literature. Plaintiff was provided with an outdated rule book and was unable
to recover receipts for the literature. Plaintiff's legal assistant advised him to obtain a monthly
statement from DOCCS Central Office.
Defendant Fauss reconvened the disciplinary hearing on June 14, 2010. Plaintiff pled not
guilty to all of the charged violations and moved to dismiss the charges for violating Rule 105.13
and Rule 105.14 because those rules were not listed in the copy of the rule book that was provided
to him. Plaintiff, Defendant Hai, and the inmate who received the literature from Plaintiff provided
testimony. On June 12, 2010, Defendant Fauss found Plaintiff guilty of all rule violations and
imposed sanctions of 120 days solitary confinement, 120 days loss of good time credits, and loss of
phone, commissary, and package privileges.
Plaintiff appealed Defendant Fauss' determination; and, on July 20, 2010, Defendant Prack,
Acting Director of Special Housing/Inmate Disciplinary Program, modified Defendant Fauss'
decision and dismissed the Rule 105.13 charge. However, Defendant Prack did not reduce
Plaintiff's sanctions.
Finally, Plaintiff alleges that, while he was housed in solitary confinement, he was locked in
his cell twenty-four hours a day with the lights on throughout the night. Plaintiff contends that he
had no privacy and was not allowed to participate in sports and social gatherings, attend religious
services, or have contact visits. Plaintiff claims that he received only the bare minimum of personal
property and food rations. Plaintiff was released from solitary confinement on April 21, 2012. On
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January 28, 2013, he filed this action. See Dkt. No. 1.
III. DISCUSSION
A.
Procedural background
On November 14, 2010, Plaintiff commenced a special proceeding in New York State
Supreme Court pursuant to Article 78 of New York Civil Practice Law and Rules, which was
subsequently transferred to the Appellate Division, Third Department. On June 21, 2012, the
Appellate Division reversed the Tier III disciplinary hearing decision and ordered DOCCS to
expunge the disciplinary conviction, restore all of Plaintiff's privileges, and restore Plaintiff's good
time credits.
On January 28, 2013, Plaintiff commenced this action pursuant to 42 U.S.C. § 1983 against
Defendants Brian Fischer, Albert Prack, T. Fauss, Timothy Abate, J. Hai and T. McCarthy. In his
complaint, Plaintiff asserted the following causes of action: (1) a First Amendment claim against
Defendant Hai for confiscating his papers and issuing a misbehavior report and against Defendant
Abate for failing to dismiss the misbehavior report; (2) a due process claim against Defendant Fauss
for his conduct during the disciplinary hearing, against Defendant Prack for affirming the majority
of the hearing results, and against Defendant Fischer for failing to reverse the disciplinary decision;
(3) an equal protection claim against Defendants Hai, McCarthy, and Fauss; and (4) an Eighth
Amendment claim against Defendants Hai, Abate, Fauss, Prack and Fischer. Plaintiff requested
declaratory and injunctive relief, compensatory damages, and punitive damages.
Defendants moved for summary judgment. On September 29, 2014, Magistrate Judge
Dancks issued a Report-Recommendation and Order, in which she recommended that this Court
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grant Defendants' motion for summary judgment with regard to all of Plaintiff's claims except his
claims that Defendant Fauss and Defendant Prack violated his due process rights. Plaintiff then
moved for summary judgment. In a Report-Recommendation and Order dated October 21, 2014,
Magistrate Judge Dancks recommended that this Court grant Plaintiff's motion with regard to his
due process claims against Defendants Fauss and Prack and deny his motion with regard to his other
claims as moot.
Pending before the Court are the parties' objections to both of Magistrate Judge Dancks'
Report-Recommendation and Orders. See Dkt. Nos. 66, 67, 68.
B.
The parties' objections to Magistrate Judge Dancks' Report-Recommendation and
Orders
1. Parties' objections to Magistrate Judge Dancks' September 29, 2014 ReportRecommendation and Order
Plaintiff filed objections to Magistrate Judge Dancks' September 29, 2014 Report-
Recommendation and Order. See Dkt. No. 67. First, Plaintiff argued that Magistrate Judge Dancks
erred in finding that Defendant Fischer was not personally involved in the alleged unconstitutional
incidents. See id. at 1-2. Second, Plaintiff objected to Magistrate Judge Dancks' finding that
Defendants were entitled to judgment in their favor on unexhausted claims. See id. at 3. Third,
Plaintiff objected to Magistrate Judge Dancks' recommendation that this Court grant Defendants'
motion for summary judgment with regard to his First Amendment confiscation claim against
Defendant Hai. See id. at 4-5. Finally, Plaintiff objected to Magistrate Judge Dancks'
recommendation that this Court grant Defendants' motion for summary judgment with regard to his
First Amendment claim against Defendant Abate.
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Defendants also filed objections to Magistrate Judge Dancks' September 29, 2014 ReportRecommendation and Order. First, Defendants argued that Magistrate Judge Dancks erred in
denying their motion for summary judgment with regard to Plaintiff's due process claims. See Dkt.
No. 66 at 10. Second, they argued that Defendants Fauss and Prack were entitled to qualified
immunity because their actions were objectively reasonable in light of the record produced at
Plaintiff's disciplinary hearing. See id. at 11.
2. Parties' objections to Magistrate Judge Dancks' October 21, 2014 ReportRecommendation and Order
Plaintiff filed objections to Magistrate Judge Dancks' October 21, 2014 ReportRecommendation and Order. See Dkt. No. 68. First, Plaintiff objected to Magistrate Judge Dancks'
recommendation that this Court find Plaintiff's motion for summary judgment with regard to his
First Amendment, equal protection, and Eighth Amendment claims moot. See id. at 1. Second,
Plaintiff objected to Magistrate Judge Dancks' finding that the Prison Litigation Reform Act
("PLRA") limited his relief, arguing that the Court could award him punitive damages under the
PLRA. See id. at 3.
Defendants also filed objections to Magistrate Judge Dancks' October 21, 2014 ReportRecommendation and Order. See Dkt. No. 66. Defendant argued that Magistrate Judge Dancks
erred when she granted Plaintiff's motion for summary judgment because, contrary to established
principles of summary judgment analysis, Magistrate Judge Dancks resolved a genuine dispute of
material fact in Plaintiff's favor instead of affording Defendant Fauss the benefit of every reasonable
inference. See id. at 9.
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C.
Standard of review
1. Review of a magistrate judge's report-recommendation
In reviewing a magistrate judge's report-recommendation, the district court may accept,
reject or modify the recommendations. See 28 U.S.C. § 636(b)(1). The court conducts a de novo
review of the portions of the magistrate judge's recommendations to which a party objects. See
Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). If, however, a party fails to file specific
objections, de novo review is not required. See Wilds v. United Parcel Serv., 262 F. Supp. 2d 163,
169 (S.D.N.Y. 2003). Nor is a court required to conduct a de novo review if the parties' objections
repeat the arguments they made in their original pleadings. See Edwards v. Fischer, 414 F. Supp.
2d 342, 346-47 (S.D.N.Y. 2006) (citations omitted). However, even if the parties file no objections,
the court must ensure that the face of the record contains no clear error. See Wilds, 262 F. Supp. 2d
at 169.
2. Summary judgment standard
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, "[t]he court shall grant
summary judgment if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is "material" if
it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A material fact is genuinely in dispute "if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party." Id.
The moving party bears the initial burden of demonstrating that there is no genuine dispute
as to a material fact to be decided with respect to any essential element of the claim at issue. See id.
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at 250. Once the moving party meets its initial burden, the opposing party must show that there is a
material issue of fact for trial. See id. Although pro se parties are entitled to special latitude when
defending against summary judgment motions, they still must establish more than mere
"metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986) (citations omitted).
Finally, when deciding a motion for summary judgment, a court must resolve any
ambiguities and draw all reasonable inferences from the facts in a light most favorable to the nonmoving party. See Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (citation omitted);
Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). Summary judgment is proper only where
no reasonable trier of fact could rule in favor of the non-moving party. See Bldg. Trades Emp'rs
Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002) (citation omitted).
D.
Claims against Defendant Fischer
"'[P]ersonal involvement of [a] defendant[] in alleged constitutional deprivations is a
prerequisite to an award of damages under § 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)) (other citations
omitted). Thus, a prisoner's allegations that a supervisory official failed to respond to a grievance is
insufficient to establish that the official "failed to remedy the violation after learning about" it or
"exhibited deliberate indifference by failing to act on information indicating that the violation was
occurring." Simpson v. Town of Warwick Police Dep't, No. 13 Civ. 2854, 2016 WL 452156, *6
(S.D.N.Y. Feb. 4, 2016) (citations omitted); see also Watson v. McGinnis, 964 F. Supp. 127, 130
(S.D.N.Y. 1997) (stating that "[t]he law is clear that allegations that an official ignored a prisoner's
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letter are insufficient to establish liability" (citations omitted)). Furthermore, a person in a
supervisory capacity cannot be liable for damages under § 1983 solely by virtue of being a
supervisor as there is no respondeat superior liability under § 1983. See Richardson v. Goord, 347
F.3d 431, 435 (2d Cir. 2003) (quotation omitted); Wright, 21 F.3d at 501 (citation omitted). Finally,
vague or conclusory allegations that a supervisor has failed properly to monitor the actions of
subordinate employees will not suffice to establish the requisite personal involvement and support a
finding of liability. See Pettus v. Morgenthau, 554 F.3d 293, 300 (2d Cir. 2009).
In Williams v. Smith, 781 F.2d 319 (2d Cir. 1986), the Second Circuit detailed the various
ways in which a defendant could be personally involved in a constitutional deprivation. A plaintiff
can establish culpability on the part of a supervisory official for a civil rights violation in one of
several ways, including when the individual (1) has directly participated in the challenged conduct;
(2) after learning of the violation through a report or appeal, has failed to remedy the wrong; (3)
created or allowed to continue a policy or custom under which unconstitutional practices occurred;
(4) was grossly negligent in managing the subordinates who caused the unlawful event; or (5) failed
to act on information indicating that unconstitutional acts were occurring. See id. at 323-24
(citations omitted).
In this case, Plaintiff alleged a due process claim against Defendant Fischer for failing to
reverse the disciplinary decision of the Tier III hearing. Plaintiff did not allege that Defendant
Fischer directly participated in the challenged conduct. See Dkt. No. 67 at 3. Instead, Plaintiff
asserted that, as Commissioner, Defendant Fischer had a duty to investigate prisoner allegations of
his subordinates' unconstitutional conduct. See id.
Plaintiff's complaint does not include any facts that relate to Defendant Fischer.
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Furthermore, in his objections to Magistrate Judge Dancks' September 29, 2014 ReportRecommendation and Order, Plaintiff did not identify any facts to support a claim that Defendant
Fischer either knew, or should have known, of the events about which Plaintiff complained.
Therefore, there is no basis for Plaintiff's allegation that Defendant Fischer failed to remedy any
violation after learning about it.
Furthermore, Plaintiff has not introduced any facts to support a finding that Defendant
Fischer either created or allowed a policy or custom under which the violation occurred; had been
grossly negligent in managing subordinates who caused the violation; or exhibited deliberate
indifference to the rights of inmates by failing to act on information indicating that the violation was
occurring. The bare fact that Defendant Fischer occupied a high position in DOCCS is insufficient
to sustain a claim against him. See Colon v. Coughlin, 58 F.3d 865, 874 (2d Cir. 1995) (citations
omitted).
For all these reasons, the Court accepts Magistrate Judge Dancks' recommendation and
grants Defendants' motion for summary judgment with regard to all of Plaintiff's claims against
Defendant Fischer.
E.
Plaintiff's unexhausted claims
The PLRA imposes several restrictions on the ability of prisoners to maintain federal civil
rights actions. Within the PLRA is an exhaustion of remedies provision, which requires that "[n]o
action shall be brought with respect to prison conditions under section 1983 of this title, or any other
Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a); see Woodford v.
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Ngo, 548 U.S. 81, 85 (2006) (citation omitted); Hargrove v. Riley, No. CV-04-4587, 2007 WL
389003, *5-*6 (E.D.N.Y. Jan. 31, 2007) (citations omitted). The PLRA's exhaustion requirement
applies to all inmate suits that concern prison life, whether they involve general circumstances or
specific episodes, and regardless of the type of wrong they allege. See Porter v. Nussle, 534 U.S.
516, 524 (2002) (citations omitted).
New York prison inmates are subject to DOCCS' Inmate Grievance Program ("IGP"), which
courts recognize as an "available" remedy under the PLRA. See Mingues v. Nelson, No. 96 CV
5396, 2004 WL 324898, *4 (S.D.N.Y. Feb. 20, 2004) (citing Mojias v. Johnson, 351 F.3d 606
(2003); Snider v. Melindez, 199 F.3d 108, 112-13 (2d Cir. 1999)). The IGP consists of a three-step
review process. First, the inmate submits a written grievance to the Inmate Grievance Review
Committee ("IGRC") within twenty-one days of the events at issue. See 7 N.Y.C.R.R. § 701.5(a).
Then the IGRC issues a determination regarding the grievance. See 7 N.Y.C.R.R. § 701.5(b). If the
inmate files an appeal from an adverse decision, the superintendent of the facility reviews the
IGRC's determination and issues a decision. See 7 N.Y.C.R.R. § 701.5(c). The third step provides
for the inmate to appeal a superintendent's adverse ruling to the Central Office Review Committee
("CORC"), which makes the final decision. See 7 N.Y.C.R.R. § 701.5(d). Ordinarily, only upon
exhaustion of this review process may a prisoner seek relief pursuant to § 1983 in federal court. See
Reyes v. Punzal, 206 F. Supp. 2d 431, 432 (W.D.N.Y. 2002).
In this case, CORC only ruled on the issue of whether Plaintiff's punishment should have
been reduced when the Rule 105.13 charge was dismissed. The CORC did not, however, rule on
Plaintiff's First Amendment, equal protection and Eighth Amendment claims. See id. Therefore,
Plaintiff did not exhaust all available remedies through the IGP. A finding of failure to exhaust,
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however, does not end the review. Rather, the Second Circuit has deemed that a three-part inquiry
is appropriate when a prisoner has failed to exhaust his administrative remedies. See id. In this
case, the third part of the inquiry was not met because there were "special circumstances" that
justified Plaintiff's failure to comply with the administrative procedural requirements. Specifically,
the prison officials rejected Plaintiff's grievance, advised him that some of the issues underlying his
disciplinary convictions were "non-grievable," and instructed him to pursue his issues in the courts.
Under these circumstances, the Court finds that Plaintiff has, at the very least, raised an issue
of fact that his failure to exhaust his administrative remedies was justified. Therefore, the Court
accepts Magistrate Judge Dancks' recommendation and denies Defendants' motion for summary
judgment on this ground.
F.
Plaintiff's First Amendment confiscation and retaliation claims
The three-step analysis that the Supreme Court enumerated in Turner v. Safley, 482 U.S. 78,
89-91 (1987), governs prison restrictions on inmates' receipt and possession of publications. See
Thornburgh v. Abbott, 490 U.S. 401, 414 (1989); Allen v. Coughlin, 64 F.3d 77, 79-80 (2d Cir.
1995) (quotation omitted). First, courts ask "whether the governmental objective underlying the
regulations at issue is legitimate and neutral, and [whether] the regulations are rationally related to
that objective." Thornburgh, 490 U.S. at 414. Second, courts look to see "'whether there are
alternative means of exercising the right that remain open to prison inmates.'" Id. at 417 (quotation
omitted). Third, courts examine "the impact that accommodation of the asserted constitutional right
will have on others (guards and inmates) in the prison." Id. at 418 (citation omitted).
In the prison context, preservation of security and discipline constitutes a legitimate
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penological interest. See Giano v. Senkowski, 54 F.3d 1050, 1054 (2d Cir. 1995) (citation omitted).
A governmental objective must be "legitimate" and "neutral." Thornburgh, 490 U.S. at 414.
Conduct expressly aimed at protecting prison security is "legitimate" beyond question and is in fact
"central to all other correctional goals." Id. at 415 (quoting Pell v. Procunier, 417 U.S., at 823, 94
S. Ct., at 2804). As for neutrality, "[w]here . . . prison administrators draw distinctions between
publications solely on the basis of their potential implications for prison security, the regulations are
'neutral' in the technical sense . . . ." Id. at 415-16 (footnote omitted). Furthermore, "[w]here the
regulations at issue concern . . . [publications in] prison, . . . a regulation which gives prison
authorities broad discretion is appropriate." Id. at 416. It is therefore rational to censor any
materials found "to create an intolerable risk of disorder under the conditions of a particular prison
at a particular time." Id. at 417 (footnote omitted).
In this case, Defendant Hai's confiscation of the materials was validly and rationally
connected to the legitimate governmental objective of maintaining order in the facility. Defendant
Hai reported that, to his eye, the materials "appear[ed] to advocate civil disobedience inside
prisons." See Dkt. No. 47-6 at ¶ 11. Furthermore, Defendant Hai only confiscated the materials as
Plaintiff was being transferred; and, therefore, Plaintiff never informed him that he had allegedly
been given permission to possess the materials. Defendant Hai's conclusion was, therefore, rational
as he believed the publication created a risk of civil disobedience within the prison. For all these
reasons, the Court accepts Magistrate Judge Dancks' recommendation and grants Defendants'
motion for summary judgment with regard to Plaintiff's First Amendment confiscation claim.
With regard to Plaintiff's First Amendment retaliation claim, to sustain such a claim, a
prisoner must demonstrate the following: "(1) that the speech or conduct at issue was protected, (2)
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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." Dawes v. Walker, 239 F.3d 489,
492 (2d Cir. 2001), overruled on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506
(2002) (citations omitted).
Due to the relative ease with which a prisoner can allege a claim of retaliation, courts have
scrutinized such retaliation claims with particular care. See Flaherty v. Coughlin, 713 F.2d 10, 13
(2d Cir. 1983). As the Second Circuit has explained,
[t]his is true for several reasons. First, claims of retaliation are
difficult to dispose of on the pleadings because they involve questions
of intent and are therefore easily fabricated. Second, prisoners' claims
of retaliation pose a substantial risk of unwarranted judicial intrusion
into matters of general prison administration. This is so because
virtually any adverse action taken against a prisoner by a prison
official – even those otherwise not rising to the level of a
constitutional violation – can be characterized as a constitutionally
proscribed retaliatory act.
Dawes, 239 F.3d at 491 (citations omitted).
In this case, Plaintiff's allegations do not plausibly suggest that his conduct was protected.
Plaintiff testified at his deposition that his intent in passing the materials to the other inmate was for
the other inmate to discard the materials or retain the materials for himself. See Dkt. No. 47-1 at 8.
Accordingly, the Court accepts Magistrate Judge Dancks' recommendation and grants Defendants'
motion for summary judgment with regard to Plaintiff's First Amendment retaliation claim.
G.
Due process claims against Defendants Fauss and Prack
Plaintiff alleges that Defendant Fauss violated his procedural due process rights when he
failed to act as a fair and impartial hearing officer at Plaintiff's Tier III hearing. Plaintiff further
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asserts that Defendant Prack violated his procedural due process rights when he affirmed the
majority of Defendant Fauss' disciplinary hearing decision.
To state a procedural due process claim pursuant to the Fourteenth Amendment, an inmate
must first establish that he enjoys a protected liberty interest. See Arce v. Walker, 139 F.3d 329, 333
(2d Cir. 1998) (citing Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 460, 109 S. Ct. 1904,
1908, 104 L. Ed. 2d 506 (1989)). Such interests are derived from the Fourteenth Amendment Due
Process Clause itself or from a state statute or regulation. See id. (citation omitted). The Supreme
Court has narrowly circumscribed the scope of liberty interests emanating from the Due Process
Clause "to protect no more than the 'most basic liberty interests in prisoners.'" Id. (quoting Hewitt v.
Helms, 459 U.S. 460, 467, 103 S. Ct. 864, 869, 74 L. Ed. 2d 675 (1983)) (other citation omitted).
However, when a prisoner is subjected to conditions that are "unexpected," Sandin v. Conner, 515
U.S. 472, 484 (1995), and "qualitatively different from the punishment characteristically suffered by
a person convicted of [a] crime," the Due Process Clause itself confers a liberty interest, Vitek v.
Jones, 445 U.S. 480, 493 (1980).
Furthermore, the Supreme Court held in Sandin that state-created liberty interests shall be
limited to those deprivations that subject a prisoner to "atypical and significant hardship . . . in
relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 484. Thus, a prisoner asserting
a denial of due process as a result of segregated confinement or loss of privileges must (1) make a
threshold showing that an atypical and significant hardship was imposed on him and establish that
the "state has granted its inmates, by regulation or by statute, a protected liberty interest in
remaining free from that confinement or restraint." Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir.
1996).
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Although the Second Circuit has noted that "there is no bright-line rule regarding the length
or type of sanction" that meets the Sandin standard, Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir.
1999), it has made clear that excessive confinement in a separated housing unit deserves due process
protections, see Sims v. Artuz, 230 F.3d 14, 23 (2d Cir. 2000). In addition to duration, a court may
also consider the conditions of confinement in determining whether confinement rises to a severe
hardship. See Palmer v. Richards, 364 F.3d 60, 64 (2d Cir. 2004) (quotation omitted).
Furthermore, the Second Circuit has stated that, "[w]here the plaintiff was confined for an
intermediate duration – between 101 and 305 days – 'development of a detailed record' of the
conditions of the confinement relative to ordinary prisons conditions is required." Id. at 64-65
(quoting Colon, 215 F.3d at 232) (other citation omitted); see also Sims, 230 F.3d at 23 (noting that
segregated sentences of 125-288 days are "relatively long" and therefore necessitate "'specific
articulation of . . . factual findings' before the district court could properly term the confinement
atypical or insignificant" (quotation and other citations omitted)). Accordingly, the court must
"'make a fact-intensive inquiry'" that examines "'the actual conditions of SHU confinement.'"
Palmer, 364 F.3d at 65 (quotations omitted). If the conditions of confinement are undisputed, a
court may decide the Sandin issue as a matter of law. See id. (citations omitted). If, however,
normal conditions of SHU exist, but the period of confinement is longer than the intermediate
duration, then it would constitute a significant departure from ordinary prison life requiring the
protection of procedural due process under Sandin. See id. (quotation and other citations omitted).
Factors relevant to an analysis of what constitutes an atypical and significant hardship
include "(1) the effect of the confinement on the length of prison incarceration, (2) the extent to
which the conditions of segregation differ from other routine prison conditions, and (3) the duration
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of the disciplinary segregation compared to discretionary confinement." Spaight v. Cinchon, No.
96-CV-44, 1998 WL 167297, *5 (N.D.N.Y.) (citing Wright v. Coughlin, 132 F.3d 133, 136 (2d Cir.
1998)), aff'd' in part, vacated in part on other grounds, 166 F.3d 1201 (2d Cir. 1998); see also
Palmer, 364 F.3d at 64 (stating that, in assessing what constitutes an atypical and significant
hardship, "'[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'" (quotation omitted)). Once a plaintiff makes a threshold
showing of atypical and significant confinement, the court should determine whether that prisoner,
prior to his confinement, was afforded the minimum requirements of due process. See Wolff v.
McDonnell, 418 U.S. 539, 556 (1974).
With regard to a disciplinary hearing, due process is satisfied if (1) "the inmate receive[s] at
least twenty-four hours written notice of the disciplinary charges against him;" (2) "the inmate [is]
permitted to call witnesses and present evidence 'when permitting him to do so would not be unduly
hazardous to institutional safety or correctional goals;''' (3) "the inmate [is] judged by a fair and
impartial hearing officer;" (4) "the disciplinary conviction [is] supported by some evidence;" and (5)
"the inmate [is] provided with a written statement of fact findings that support the disposition as
well as the reasons for the disciplinary action taken." Mohamed v. Powers, No. 9:14-CV-1389,
2015 WL 8492472, *4 (N.D.N.Y. Dec. 10, 2015) (citation omitted).
1. Liberty interest
Defendants concede, for purposes of this motion, that the penalty imposed against Plaintiff
implicates a liberty interest. See Dkt. No. 62 at 18. Accordingly, the Court need only determine
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whether Plaintiff was deprived of any of the minimum requirements of due process during the
disciplinary hearing and subsequent appeal of the hearing officer's decision.
2. Fair and impartial hearing officer, Defendant Fauss
Plaintiff does not challenge the sufficiency of the written notice he received, allege that he
was not given a reasonable opportunity to call witnesses and present evidence, or challenge the
sufficiency of the written statement of the disposition. Plaintiff alleges only that Defendant Fauss
was not a fair and impartial hearing officer.
"It is well settled that the degree of impartiality required of prison hearing officials does not
rise to the level of that required by judges generally.'" Espinal v. Goord, 180 F. Supp. 2d 532, 539
(S.D.N.Y. 2002) (quoting Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir. 1989)). Due process in this
context requires only that the hearing officer's decision not be arbitrary. Id. (quoting Wolff, 418 U.S.
at 571, 94 S. Ct. 2963). A decision is not "arbitrary" if it is supported by "some evidence."
Superintendent v. Hill, 472 U.S. 445, 455 (1985). "This standard is extremely tolerant and is
satisfied 'if there is any evidence in the record that supports' the disciplinary ruling." Sira v. Morton,
380 F.3d 57, 69 (2d Cir. 2004) (quoting Friedl v. City of New York, 210 F.3d 79, 85 (2d Cir. 2000)).
"[O]nly 'reliable' evidence can constitute 'some evidence.'" Id. at 76 (quoting Luna v. Pico, 356 F.3d
at 488).
In this case, Defendant Fauss' hearing determination that Plaintiff violated Rule 105.13 was
not supported by some evidence. This rules provides, in pertinent part, that
an inmate shall not engage in or encourage others to engage in gang
activities or meetings, or display, wear, possess, distribute, or use
gang insignia or materials including, but not limited to printed or
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handwritten gang or gang related material . . . . For purposes of this
rule, printed or handwritten gang or gang related material is written
material that, if observed in the inmate's possession, could result in an
inference being drawn about the inmate's gang affiliation, but
excludes published material that the inmate has obtained through the
facility library or that has been approved for the inmate to possess
through the media review process.
7 N.Y.C.R.R. § 270.2.
There was no evidence presented at the disciplinary hearing that Plaintiff distributed gang
materials. At that hearing, Plaintiff testified that the literature had been media reviewed, permitted,
and delivered to him at Upstate Correctional. Although Plaintiff asked his assigned assistant to
obtain copies of the disbursement receipts from the prison business office records, the assistant was
unsuccessful because the facility records only went back three years. The hearing continued with
testimony from the inmate to whom Plaintiff handed the materials and from Defendant Hai.
However, neither of them testified as to how Plaintiff came into possession of the literature.
Significantly, the documents that Plaintiff possessed did not refer to any particular organization, nor
did they advocate violence or acts of disobedience. Additionally, no evidence was presented in the
misbehavior report, hearing testimony, or elsewhere to sustain the remaining charges on a basis
independent of a finding that the materials Plaintiff possessed were unauthorized.
Finally, although Defendant Prack subsequently reversed Defendant Fauss' guilty finding,
this reversal does not protect Defendant Fauss from liability. It is well-established in the Second
Circuit that subsequent administrative reversals do not cure procedural defects in disciplinary
hearings. See Walker v. Bates, 23 F.3d 652, 657 (2d Cir. 1994).
For all these reasons, the Court finds that there was no reliable evidence to support
Defendant Fauss' finding that Plaintiff was guilty of violating Rule 105.13. Therefore, the Court
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accepts Magistrate Judge Dancks' recommendation and grants Plaintiff's motion for summary
judgment with regard to his due process claim against Defendant Fauss.
3. Due process claim against Defendant Prack
Plaintiff alleges that Defendant Prack was liable in his supervisory capacity for Defendant
Fauss' alleged due process violation because he knew of but failed to remedy the violation when he
affirmed the majority of Defendant Fauss' disciplinary determination. See Dkt. No. 65 at 12.
Although district courts are split in the Second Circuit on the issue of whether simply
affirming an allegedly unconstitutional disciplinary decision will implicate the requisite personal
involvement for § 1983 liability, some district courts have found personal involvement where a
supervisory official affirms an allegedly infirm hearing. See Thomas v. Calero, 824 F. Supp. 2d
488, 509-10 (S.D.N.Y. 2011). These courts find that there is an "ongoing" violation because having
the power to vacate an allegedly unconstitutional decision, in refusing to do so, and allowing an
inmate to remain in the Special Housing Unit knowingly "continu[es] a deprivation of liberty
without due process of law." Delgado v. Bexio, No. 09 Civ. 6899, 2011 WL 1842294, *9 (S.D.N.Y.
May 9, 2011).
Furthermore, some courts have distinguished between simply affirming the denial of a
grievance and "'review[ing] and respond[ing] to a prisoner's complaint,'" finding personal
involvement only in the latter case. Pugh v. Goord, 571 F. Supp. 2d 477, 515 (S.D.N.Y. 2008)
(quotation and other citations omitted). Others have drawn a distinction between a pro forma denial
of a grievance and a "'detailed and specific'" response to a grievance's allegations. Brooks v.
Chappius, 450 F. Supp. 2d 220, 226 (W.D.N.Y. 2006) (quotation and other citations omitted).
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Many courts in the Second Circuit have held that an alleged constitutional violation complained of
in a grievance must be "ongoing" in order to find personal involvement, such that the "supervisory
official who reviews the grievance can remedy [it] directly." Vega v. Artus, 610 F. Supp. 2d 185,
198 (N.D.N.Y. 2009) (citation omitted).
In this case, Defendant Prack, who was the Acting Director of Special Housing/Inmate
Disciplinary Program, modified Defendant Fauss' decision by dismissing the Rule 105.13 charge.
See Dkt. No. 1 at 8. However, Defendant Prack affirmed the other sanctions and did not reduce
Plaintiff's solitary confinement time, loss of good time credits, or loss of privileges. Following
Defendant Prack's determination, Plaintiff submitted a four-page grievance. See Dkt. No. 51-6 at
17-20. Plaintiff argued that his punishment should have been modified when Defendant Prack
dismissed the Rule 105.13 charge. The Inmate Grievance Program responded to Plaintiff's
complaint by advising him that the issues were non-grievable. Plaintiff subsequently filed a second
grievance requesting that all penalties imposed for the guilty finding for violation of Rule 105.13 be
lifted. The Superintendent denied modification of the penalties.
In this case, Plaintiff's appeal of Defendant Fauss' decision to Defendant Prack and his
subsequent two grievances complained of "ongoing" violations that Defendant Prack could have
remedied. Plaintiff's first grievance, which he filed on August 16, 2010, requested punishment
modification, specifically removal from special housing. The request for modification refers to an
ongoing harm that Defendant Prack could have remedied by removing Plaintiff from the Special
Housing Unit. Plaintiff's second grievance, which he filed on August 17, 2010, requested similar
relief and also requested that all penalties, including the 120 days' solitary confinement, 120 days
loss of good time credits, and loss of phone, commissary and package privileges be lifted with
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respect to the Rule 165.13 be dismissed. Since these requests referred to remedies for an ongoing
violation of constitutional rights, the Court finds that Defendant Prack was personally involved in
the violation of Plaintiff's constitutional rights. Accordingly, the Court accepts Magistrate Judge
Dancks' recommendation and grants Plaintiff's motion for summary judgment with regard to his due
process claim against Defendant Prack.
H.
Qualified immunity
Defendants assert that Defendant Fauss and Defendant Prack are entitled to qualified
immunity because their actions were objectively reasonable in light of the record produced at
Plaintiff's disciplinary hearing.
The doctrine of qualified immunity shields public officials from suit for conduct they
undertake in the course of their duties if it "does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982) (citations omitted). Whether an official protected by qualified immunity may
be liable for an alleged unlawful action turns on the objective legal reasonableness of the action
assessed in light of the legal rules that were clearly established at the time he took the action. See
Anderson v. Creighton, 483 U.S. 635, 639 (1987); Lewis v. Cowan, 165 F.3d 154, 166 (2d Cir.
1999) (quotation and other citation omitted). Until recently, courts faced with qualified immunity
defenses have applied the procedure that the Supreme Court set out in Saucier v. Katz, 533 U.S.
194, 194 (2001). Under this two-pronged approach, a court must first decide whether the facts
alleged make out a violation of a constitutional right. If the allegations do so, the court must then
decide whether the right at issue was "clearly established" at the time of the alleged misconduct.
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See id. Recently, the Supreme Court has softened the rigid approach enunciated in Saucier. See
Pearson v. Callahan, 555 U.S. 223 (2009). Under Pearson, the court may address the two Saucier
prongs in any order. See id. at 236.
To determine whether a right was clearly established for purposes of qualified immunity,
courts must consider "whether the right was defined with reasonable specificity; whether decisional
law of the Supreme Court and the [Second Circuit] supports its existence; and whether, under
preexisting law, a defendant official would have reasonably understood that his actions were
unlawful." Rodriguez v. Phillips, 66 F.3d 470, 476 (2d Cir. 1995) (citation omitted).
A defendant is entitled to summary judgment on qualified immunity grounds if the court
finds that the rights that the plaintiff asserts were not clearly established or that
"no reasonable jury, looking at the evidence in the light most
favorable to, and drawing all inferences most favorable to, the
plaintiffs, could conclude that it was objectively unreasonable for the
defendant[] to believe that he was acting in a fashion that did not
clearly violate an established federally protected right."
Lee v. Sandberg, 136 F.3d 94, 102 (2d Cir. 1997) (quoting Robison, 821 F.2d at 921 (quoting
Halperin v. Kissinger, 807 F.2d 180, 189 (D.C. Cir. 1986))).
With respect to Plaintiff's due process claims against Defendants Fauss and Prack, an inmate
has an established right to due process when facing disciplinary charges. See Wolff v. McDonnell,
418 U.S. 539, 563-67 (1974). In this case, a rational juror could conclude that it was not objectively
reasonable for Defendant Fauss to find Plaintiff distributing gang materials where no evidence was
presented at the disciplinary hearing that Plaintiff did so. Although Defendant Prack dismissed the
Rule 105.13 charge, he affirmed the other sanctions and did not reduce Plaintiff's solitary
confinement time, loss of good time credits, or his loss of privileges. As Defendant Prack had the
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power to vacate the allegedly unconstitutional decision and, in refusing to do so, allowed Plaintiff to
remain in the Special Housing Unit, a rational juror could conclude that Defendant Prack knowingly
continued a deprivation of liberty without due process of law. Accordingly, the Court finds that
Defendants Fauss and Prack are not entitled to qualified immunity with respect to Plaintiff's due
process claims and denies Defendants' motion for summary judgment on this ground.
I.
PLRA and Plaintiff's claims for relief
Section 1997e(e) of Title 42 of the United States Code provides that "[n]o 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 showing of physical injury. . .
." 42 U.S.C. § 1997e(e). The Second Circuit has held that § 1997e(e) applies to all federal civil
actions, including those based on claims alleging constitutional violations. See Thompson v. Carter,
284 F.3d 411, 416 (2d Cir. 2002). Furthermore, the Second Circuit has held that "to collect
compensatory damages in an action brought pursuant to 42 U.S.C. § 1983, a plaintiff must prove
more than a mere violation of his constitutional rights. He must also demonstrate that the
constitutional deprivation caused him some actual injury." McCann v. Coughlin, 698 F.2d 112, 126
(2d Cir. 1983) (citations omitted). Thus, "[a]bsent a showing of causation and actual injury, a
plaintiff is entitled only to nominal damages." Miner v. City of Glens Falls, 999 F.2d 655, 660 (2d
Cir. 1993) (citations omitted).
Although § 1997e(e) "is a limitation on recovery of damages for mental and emotional injury
in the absence of a showing of physical injury, it does not restrict a plaintiff's ability to recover
compensatory damages for actual injury, nominal or punitive damages, or injunctive and declaratory
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relief." Thompson, 284 F.3d at 416. Provided that a plaintiff can demonstrate actual injury,
§ 1997e(e) permits compensatory damages for the loss of the plaintiff's property. See id. at 418
(citing Robinson v. Page, 170 F.3d 747, 748 (7th Cir. 1999) (indicating in dicta that suit for
damages resulting from prison officials' seizure of inmate's property without due process should not
be dismissed merely because inmate alleges emotional suffering from the same incident)).
In this case, Plaintiff alleges no physical injuries as a result of the due process violation. See
Dkt. No. 68 at 3. In her Report-Recommendation and Order, Magistrate Judge Dancks
recommended that, if the Court adopted her recommendation, it should allow the parties an
opportunity to brief the issue of the appropriate relief and the best method for determining that
relief.
Although the PLRA may limit Plaintiff's relief to some extent, he may still be entitled to
nominal damages, punitive damages, and/or injunctive or declaratory relief with regard to his due
process claims against Defendants Fauss and Prack. Furthermore, it is unclear whether Plaintiff's
$200,000 request for compensatory damages reflects any portion of damages for actual injury, such
as the loss of prison job wages or the value of his property. Accordingly, the Court accepts
Magistrate Judge Dancks' recommendation and will require the parties to file memoranda of law
addressing the issue of the appropriate relief and the best method for determining that relief.
IV. CONCLUSION
After reviewing the entire file in this matter, Magistrate Judge Dancks' September 29, 2014
Report-Recommendation and Order and her October 21, 2014 Report-Recommendation and Order,
and the parties' objections thereto, as well as the applicable law, and for the above-stated reasons,
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the Court hereby
ORDERS that Magistrate Judge Dancks' September 29, 2014 Report-Recommendation and
Order is ACCEPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that Magistrate Judge Dancks' October 21, 2014 Report-Recommendation and
Order is ACCEPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that Defendants' motion for summary judgment, see Dkt. No. 47, is GRANTED
with respect to Plaintiff's (1) First Amendment claims against Defendants Hai and Abate; (2) equal
protection claims against Defendants Hai, McCarthy, and Fauss; and (3) Eighth Amendment claims
against Defendants Hai, Abate, Fauss, Prack and Fischer; and is DENIED in all other respects; and
the Court further
ORDERS that Plaintiff's motion for summary judgment, see Dkt. No. 49, is GRANTED
with respect to his due process claims against Defendants Fauss and Prack and is DENIED with
regard to his other claims as moot; and the Court further
ORDERS that, on or before March 17, 2016, each party shall file a memorandum of law,
not to exceed ten (10) pages, addressing the issue of the appropriate relief that Plaintiff could
receive on his due process claims against Defendants Fauss and Prack under the PLRA and the best
method for determining that relief; and the Court further
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ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and
Order, as well as copies of the unpublished cases that the Court has cited herein, on the parties in
accordance with the Local Rules.
IT IS SO ORDERED.
Dated: February 18, 2016
Syracuse, New York
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