Waters v. Gallagher et al
Filing
111
DECISION AND ORDER: ORDERED, that the Report-Recommendation (Dkt. No. 107 ) is APPROVED and ADOPTED in part in accordance with this Decision and Order. ORDERED, that Defendants' Cross-Motion for Summary Judgment (Dkt. No. 86 ) is GRAN TED. ORDERED, that Plaintiff's Motion for Summary Judgment (Dkt. No. 80 ) is DENIED. ORDERED, that Plaintiff's Amended Complaint (Dkt. No. 14 ) is DISMISSED in its entirety. Signed by Senior Judge Lawrence E. Kahn on 9/7/17. {order served via regular mail on plaintiff}(nas)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
KEITH WATERS,
Plaintiff,
-against-
9:15-CV-804 (LEK/DEP)
GALLAGHER, Captain, Bare Hill
Correctional Facility, et al.,
Defendants.
DECISION AND ORDER
I.
INTRODUCTION
This civil rights action comes before the Court following a report-recommendation filed
on August 7, 2017, by the Honorable David E. Peebles, U.S. Magistrate Judge, pursuant to 28
U.S.C. § 636(b) and Local Rule 72.3. Dkt. No. 107 (“Report-Recommendation”). Pro se plaintiff
Keith Waters timely filed objections. Dkt. No. 110 (“Objections”).
II.
LEGAL STANDARD
Within fourteen days after a party has been served with a copy of a magistrate judge’s
report-recommendation, the party “may serve and file specific, written objections to the proposed
findings and recommendations.” Fed. R. Civ. P. 72(b); L.R. 72.1(c). If no objections are made, or
if an objection is general, conclusory, perfunctory, or a mere reiteration of an argument made to
the magistrate judge, a district court need review that aspect of a report-recommendation only for
clear error. Barnes v. Prack, No. 11-CV-857, 2013 WL 1121353, at *1 (N.D.N.Y. Mar. 18,
2013); Farid v. Bouey, 554 F. Supp. 2d 301, 306 n.2 (N.D.N.Y. 2008), abrogated on other
grounds by Widomski v. State Univ. of N.Y. at Orange, 748 F.3d 471 (2d Cir. 2014); see also
Machicote v. Ercole, No. 06-CV-13320, 2011 WL 3809920, at *2 (S.D.N.Y. Aug. 25, 2011)
(“[E]ven a pro se party’s objections to a Report and Recommendation must be specific and
clearly aimed at particular findings in the magistrate’s proposal, such that no party be allowed a
second bite at the apple by simply relitigating a prior argument.”). “A [district] judge . . . may
accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge.” § 636(b). Otherwise, a court “shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which objection is
made.” Id.
III.
BACKGROUND
Plaintiff is an inmate currently in the custody of the New York State Department of
Corrections and Community Supervision (“DOCCS”). Docket. Plaintiff commenced this action
on July 1, 2015. Dkt. No. 1. An Amended Complaint, dated August 13, 2015, was subsequently
filed on October 15, 2015, and is currently the operative pleading. Dkt. No. 14 (“Amended
Complaint”). For a detailed account of the Amended Complaint, reference is made to the ReportRecommendation. Rep.-Rec. at 3–10.
Following the completion of discovery, Plaintiff moved for summary judgment on
December 27, 2016. Dkt. Nos. 80 (“Motion”); 80-2 (“Plaintiff’s Statement of Material Facts”).
Defendants filed opposition papers and cross-moved for summary judgment on February 18,
2017. Dkt. Nos. 86 (“Cross-Motion”); 86-2 (“Defendants’ Statement of Material Facts”).
Plaintiff filed a reply, Dkt. No. 96, as did Defendants, Dkt. No. 103. Pursuant to § 636(b) and
Local Rule 72.3, these motions were referred to Judge Peebles. He issued the ReportRecommendation on August 7, 2017. Rep.-Rec.
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Plaintiff first challenges Judge Peebles’s recommendation to dismiss his equal protection
claim. Objs. 1–5. Plaintiff specifically objects to Judge Peebles’s reliance on defendant Thomas
LeClair’s explanation for his actions and on Defendants’ claim that monitoring prisoners’
movements is central to DOCCS’s mission. Id. at 3. Plaintiff claims that a reasonable factfinder
could conclude that LeClair intentionally discriminated against him and that the other defendants,
due to their “commonality of race,” supported LeClair’s intentional discrimination. Id. at 4.
Second, Plaintiff reiterates his challenge to DOCCS Inmate Rule 109.10, which is
codified at 7 N.Y.C.R.R. § 270.2(B)(10)(i). Id. at 5. Plaintiff objects that Judge Peebles failed to
address this claim explicitly, and argues that this Court must do so. Id.
IV.
DISCUSSION
The Court has considered the Objections and has undertaken a de novo review of the
record and has determined that the Report-Recommendation should be approved and adopted in
part. The Court fully approves Judge Peebles’s dismissal of Plaintiff’s procedural due process
claims. Rep.-Rec. at 13–16. The Court also agrees with Judge Peebles’s dismissal of Plaintiff’s
equal protection claim, Rep.-Rec. at 17–22, but does so for different reasons. Finally, the Court
will explicitly address Plaintiff’s vagueness challenge. See Sharabi v. Recktenwald, No. 15-CV2466, 2017 WL 1957040, at *1 n.1 (S.D.N.Y. May 10, 2017) (“Because Magistrate Judge Pitman
did not address an insufficiency-of-the-evidence claim in the [Report-Recommendation], this
Court reviews that claim de novo.” (citing Charles v. County of Nassau, 116 F. Supp. 3d 107,
121 (E.D.N.Y. 2015))).
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A. Vagueness Challenge
Plaintiff contends that DOCCS Inmate Rule 109.10 is unconstitutionally vague and seeks
a declaratory judgment. Am. Compl. at 14, 16, 19. The Court will not address this claim on the
merits, however, because it is barred by the doctrine of res judicata.
Under the doctrine of res judicata, “a judgment on the merits in a prior suit bars a second
suit involving the same parties or their privies based on the same cause of action.” Parklane
Hosiery Co. v. Shore, 439 U.S. 322, 326 n.5 (1979). Res judicata applies to any claim or defense
previously available, whether or not it was actually litigated or determined. Tucker v. Arthur
Anderson & Co., 646 F.2d 721, 727 (2d Cir. 1981). The main concern underlying the doctrine of
res judicata is to bring litigation to an end after the parties have had a fair opportunity to litigate
their claims. Seneca Nation of Indians v. State of New York, 26 F. Supp. 2d 555, 566 (W.D.N.Y.
1998). “Res judicata does not apply to bar a claim, however, when the first court did not have the
power to award the relief sought in the later action.” Allen v. Coughlin, No. 92-CV-6137, 1996
WL 363120, at *2 (citing Davidson v. Capuano, 792 F.2d 275, 278 (2d Cir. 1986)).
Plainly, Plaintiff’s prior Article 78 proceeding arose from the same foundation of facts as
his federal suit. In addition, Plaintiff could have challenged Inmate Rule 109.10 in his Article 78
proceeding and received his requested relief. Justices of the Supreme Court of the State of New
York are empowered to adjudicate void-for-vagueness challenges in special proceedings brought
pursuant to Article 78 of the New York Civil Practice and Rules. See, e.g., Nicholas v. Herbert,
600 N.Y.S.2d 545, 545 (App. Div.) (holding, on the merits, that Inmate Rule 109.10 is not void
for vagueness), lv. denied, 625 N.E.2d 588, 605 (N.Y. 1993); Turner v. Municipal Code
Violations Bur. of City of Rochester, 977 N.Y.S.2d 876, 876 (App. Div.) (holding, on the merits,
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that Rochester Code § 120-175 is unconstitutionally vague and issuing a declaratory judgment).
Because a declaratory judgment was a remedy available in Plaintiff’s prior Article 78 proceeding,
his claim for this relief in federal court is barred by res judicata. See Natale v. Koehler, No. 89CV-6566, 1991 WL 130192, at *3 (S.D.N.Y. Jul. 9, 1991) (“Fay could have litigated his claims
for injunctive relief in the Article 78 proceeding and is therefore barred from doing so now.”
(quoting Fay v. South Colonie Central School District, 802 F.2d 21, 30 (2d Cir. 1986))).
B. Equal Protection Claim
In contrast, Plaintiff seeks monetary damages in response to the alleged violation of his
right to equal protection under the law. Am. Compl. at 17–18. “Because [P]laintiff could not
have received damages for violations of his civil rights in the Article 78 proceeding, his damage
claim [is] not barred by res judicata.” Natale, 1991 WL 130192, at *3. Nor is it barred by the
doctrine of collateral estoppel, because Plaintiff did not allege it in his prior Article 78
proceeding. Dkt. No. 86-25 (“Article 78 Petition”); see also Linden Airport Mgmt. Corp. v. New
York City Econ. Dev. Corp., No. 08-CV-3810, 2011 WL 2226625, at *6 (S.D.N.Y. Jun. 1, 2011)
(“[C]ollateral estoppel effect will only be given to matters actually litigated and determined in a
prior action.” (quoting Evans v. Ottimo, 469 F.3d 278, 282 (2d Cir. 2006))). Nevertheless, the
Court affirms Judge Peebles’s recommendation that Plaintiff’s equal protection claim must be
dismissed.
The Fourteenth Amendment commands that “[n]o State shall . . . deny to any person
within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. The Equal
Protection Clause prohibits the unequal enforcement of even valid laws where the enforcement
results from an improper motive. Yick Wo v. Hopkins, 118 U.S. 356 (1886).
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“Generally, a plaintiff challenging law enforcement conduct on equal protection grounds
‘must demonstrate that . . . he was treated differently from other similarly-situated individuals.’”
Ali v. Connick, 136 F. Supp. 3d 270, 275–76 (E.D.N.Y. 2015) (quoting Vilkhu v. City of New
York, No. 06-CV-2095, 2008 WL 1991099, at *5 (E.D.N.Y. May 5, 2008)). “However, a
plaintiff need not ‘show a better treated, similarly situated group of individuals of a different race
in order to establish a claim of denial of equal protection’ where he or she has alleged ‘an express
racial classification, or alleges that a facially neutral law or policy has been applied in an
intentionally discriminatory race-based manner, or that a facially neutral statute or policy with an
adverse effect was motivated by discriminatory animus.’” Id. (quoting Pyke v. Cuomo, 258 F.3d
107, 110 (2d Cir. 2001)); see also Snoussi v. Bivona, No. 05-CV-3133, 2010 WL 3924255, at *4
(E.D.N.Y. Feb. 17, 2010) (holding that a claim of intentional discrimination “does not require
plaintiff to plead or prove that he was treated differently than other similarly situated
individuals”), adopted by 2010 WL 3924683 (E.D.N.Y. Sept. 29, 2010). If a plaintiff
demonstrates that a facially neutral law or policy has been applied in an intentionally
discriminatory race-based manner, “‘at least in part,’ the defendant must show that the same
result would have occurred even without consideration of the plaintiff’s race or national origin.”
Ali, 136 F. Supp. 3d at 279 (quoting United States v. City of Yonkers, 96 F.3d 600, 612 (2d Cir.
1996)).
1. Defendant Thomas LeClair
Plaintiff alleges that LeClair issued the misbehavior report at the root of this lawsuit due
to racial animus. Am. Compl. at 8. He also alleges that LeClair told him to “return your black ass
to the housing unit” and admonished him for “arriv[ing] on colored people time.” Id. While
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LeClair denies making these statements, Dkt. 86-18 (“LeClair Delcaration”) at 14, “this is the
type of ‘he said, she said’ dispute common in discrimination cases, where ‘the only direct
evidence available very often centers on what the defendant allegedly said or did,’ and ‘the
defendant will rarely admit to having said or done what is alleged . . . .’” Ali, 136 F. Supp. 3d at
281 (quoting Danzer v. Norden Sys., Inc., 151 F.3d 50, 57 (2d Cir. 1998)).
However, LeClair has presented evidence that he would have issued the misbehavior
report against Plaintiff regardless of racial bias. LeClair testified that Black or African-American
inmates arrived at the law library at 4:00PM or later on nineteen occasions in May 2014 while he
was on duty. LeClair Decl. at 12; see also Dkt. No. 86-16 (“Law Library Log”) at 1–2. Based on
these nineteen incidents, LeClair only issued a misbehavior report to Plaintiff on May 24, 2014,
because Plaintiff—unlike all of the other inmates—“did not have a legitimate reason for being
late.” LeClair Decl. at 12; see also id. at 3 (“I further issued that misbehavior report to [P]laintiff
because he failed to give me any explanation for why he was so late arriving to the law library, or
where he had gone after leaving the J2 housing unit, when I asked for that information.”). As
Judge Peebles noted, Plaintiff has not produced any evidence that contradicts this sworn
statement. Rep.-Rec. at 21. Plaintiff does not claim that he provided a reason for being late to
LeClair, nor did he produce any testimony that LeClair ignored similar failures to offer reasons
for being late to the library. Therefore, LeClair has satisfied his burden, and Plaintiff’s equal
protection claim against him must be dismissed.
2. Defendant Jeffrey LaGray
Plaintiff also alleges that defendant Jeffrey LaGray’s decision-making was tainted by
racial animus. Am. Compl. at 10. Plaintiff claims that LaGray, who oversaw the hearing to
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review the misbehavior report issued by LeClair, responded to Plaintiff’s decision to plead not
guilty by stating, “[Y]our kind of people never know when to cut your losses and run.” Id.
Unsurprisingly, LaGray denies making this statement. Dkt. No. 86-8 (“LaGray Declaration”) at
16–17.
Like LeClair, LaGray has presented evidence that he would have found Plaintiff guilty of
the allegations in the misbehavior report regardless of racial bias. At the hearing, Plaintiff did not
present any defense other than stating that he was not twenty-five minutes late to the library on
May 24, 2014. Id. at 7. LaGray testified that Plaintiff “offered no version of the relevant events to
counter the description in the misbehavior report . . . .” Id. In addition,
He offered no reason for why he was not at the law library on time;
did not dispute that he failed to offer any explanation for his delay to
C.O. LeClair at the time of the incident; did not allege any ulterior or
improper motives on the part [of] C.O. LeClair in charging him;
made no allegations regarding any alleged conspiracy or effort to
wrongfully charge him or wrongfully designate the charges as Tier II
infractions; did not explicitly dispute any specific fact described in
the misbehavior report; offered no description or allegation regarding
anything C.O. LeClair might have said during their encounter at the
law library on May 24, 2014; made me no claim that the DOCCS
rules he was charged with violating were unclear, unconstitutional or
otherwise improper; mentioned nothing about his race/ethnicity or
any claim that he thought that was a factor in C.O. LeClair charging
him or in the charges against being designated as Tier II infractions;
etc.
Id. at 7–8. Since Plaintiff does not allege that he presented a defense at his hearing, or that
LaGray had any reason to disbelieve LeClair’s uncontested testimony at the hearing, the Court
finds that LaGray has satisfied his burden in demonstrating that he would have found Plaintiff
guilty of the alleged offenses regardless of racial animus. Therefore, Plaintiff’s equal protection
claim against him must be dismissed.
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3. Defendants David Gallagher and David Theobold
As Judge Peebles noted, Plaintiff did not present any direct evidence of racial animus
from defendants Gallagher and Theobold. Rep.-Rec. at 22. Plaintiff’s allegations that their
decision-making was tainted by racial animus are wholly conclusory and must be dismissed.
II.
CONCLUSION
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 107) is APPROVED and
ADOPTED in part in accordance with this Decision and Order; and it is further
ORDERED, that Defendants’ Cross-Motion for Summary Judgment (Dkt. No. 86) is
GRANTED; and it is further
ORDERED, that Plaintiff’s Motion for Summary Judgment (Dkt. No. 80) is DENIED;
and it is further
ORDERED, that Plaintiff’s Amended Complaint (Dkt. No. 14) is DISMISSED in its
entirety; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Decision and Order on all
parties in accordance with the Local Rules.
IT IS SO ORDERED.
DATED:
September 07, 2017
Albany, New York
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