Flynn v. Ward et al
Filing
21
DECISION AND ORDER: ORDERED that the amended complaint (Dkt. No. 20 ), and all exhibits annexed thereto is accepted for filing and is deemed the operative pleading. ORDERED that the Clerk of the Court is directed to add Goppert, Digert, Carpenter, and Tourtelot to the docket as defendants herein. ORDERED that the following claims are DISMISSED pursuant to U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be granted: (1) First Amendm ent access to court claims against Ward and Goppert; (2) Eighth Amendment excessive force claims against Wellenstein; (3) Eighth Amendment claims against Digert and Tourtelot; (4) Eighth Amendment conditions of confinement claims; (5) First Amendment freedom of religion claims; (6) claims based upon the destruction or deprivation of property; (7) FOIL claims; (8) retaliation claims related to the package room officer, urine test, cell search, and keeplock confinement; (9) retaliation claims agai nst Digert, Carpenter and Goppert; and (10) supervisory claims against Carpenter and Goppert. ORDERED that Digert, Tourtelot, Goppert and Carpenter are DISMISSED as defendants in this action. ORDERED that the Clerk shall issue summonses for rema ining defendants and forward it, along with copies of the amended complaint, to the United States Marshal for service upon the remaining defendants. The Clerk shall forward a copy of the summonses and amended complaint to the Office of the New Yor k Attorney General, together with a copy of this Decision and Order. ORDERED that a response to the complaint be filed by defendants, or their counsel, as provided for in the Federal Rules of Civil Procedure. Signed by Senior Judge Gary L. Sharpe on 4/4/16. (served on plaintiff by regular mail)(alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
BRUCE FLYNN,
Plaintiff,
v.
9:15-CV-1028
(GLS/CFH)
JOE WARD et al.,
Defendants.
APPEARANCES:
BRUCE FLYNN
10-A-1558
Plaintiff, pro se
Mid-State Correctional Facility
P. O. Box 2500
Marcy, New York 13403
GARY L. SHARPE
Senior United States District Judge
DECISION AND ORDER
I.
INTRODUCTION
Pro se plaintiff Bruce Flynn commenced this civil rights action asserting claims arising
out of his confinement in the custody of the New York State Department of Corrections and
Community Supervision ("DOCCS"). Dkt. No. 1 ("Compl."). In a Decision and Order filed
December 4, 2015 ("December Order"), the Court reviewed the complaint in accordance with
28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A, and determ ined that the complaint failed
to state a claim upon which relief could be granted and, therefore, was subject to dismissal.
Dkt. No. 11. In light of his pro se status, plaintiff was afforded an opportunity to submit an
amended complaint. See Dkt. No. 11 at 18. Currently before the Court is plaintiff's amended
complaint. Dkt. No. 20 ("Am. Compl.").
II.
LEGAL STANDARD
The legal standard governing the dismissal of a pleading for failure to state a claim
pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A w as discussed at length in the
December Order and it will not be restated in this Decision and Order. See Dkt. No. 11 at 23. The Court will construe the allegations in plaintiff's amended complaint with the utmost
leniency. See, e.g., Haines v. Kerner, 404 U.S. 519, 521 (1972) (holding that a pro se
litigant's complaint is to be held "to a less stringent standards than formal pleadings drafted
by lawyers").
III.
December Order and Amended Complaint1
Plaintiff, an inmate currently being held at Mid-State Correctional Facility ("Mid-State
C.F."), filed a complaint asserting claims against Joe Ward ("Ward"), Superintendent at MidState C.F. and Lief Wellenstein ("Wellenstein"), Correctional Officer/Law Library Supervisor
at Mid-State C.F. See generally Compl. In the December Order, the Court dismissed the
following, without prejudice: (1) claims that defendants denied plaintiff his right to access to
the courts in violation of the First Amendment; (2) claims that Wellenstein retaliated against
plaintiff in violation of his First Amendment rights; (3) claims that defendants violated DOCCS
Directives and the Facility Operations Manual; (4) claims related to plaintiff's FOIL request;
(5) supervisory claims against Ward; and (6) state law claims. See Dkt. No. 11.
In the amended complaint, plaintiff names four new defendants: L. Goppert
1
The amended complaint contains approximately 329 pages of exhibits. See Dkt. Nos. 20-1 through 207. The Court will consider the amended complaint as well as any documents attached as exhibits. See Cortec
Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991) (holding that the complaint is deemed to include
any written instrument attached to it as an exhibit or any statements or documents incorporated in it by
reference).
2
("Goppert"), Security Captain at Mid-State C.F.; Digert ("Digert"), Correctional Officer at MidState C.F.; Carpenter ("Carpenter"), Correctional Sergeant at Mid-State C.F.; and Tourtelot
("Tourtelot"), Nurse at Mid-State C.F.2 See Am. Compl. at 2, 3.
On November 15, 2010, plaintiff was transferred to DOCCS custody to serve a ten
year term for burglary and criminal use of a firearm. See Am. Compl. at 9. At the relevant
time, plaintiff was confined in the Long Term Protective Custody ("LTPC") Unit at Mid-State
C.F.3 See Am. Compl. In November 2010, the DOCCS Directive (#4833) regarding Law
Library Services provided, in pertinent part:
Cell Study Services: Inmates prohibited by their confinement
status from visiting the Law Library shall be allowed to study
Law Library materials in their cells and obtain legal services
normally available to general population inmates.
Such inmates may request, in writing, a maximum of two items
per day and these will be delivered, if available, within 24 hours
of receipt of the request. Inmates may retain said legal
materials for a period of not less than 16 hours nor more than
24 hours.
Dkt. No. 20-1 at 5.
Under the Cell Study Program, requests for legal materials are restricted to two per
day. See Am. Compl. at 15. As a result, inmates in protective custody often incur a two or
three month delay in obtaining material. See id.
On October 3, 2011, Captain Admik4 issued a memorandum to the security staff at
Mid-State C.F. directing that inmates in the LTPC Unit be permitted physical access to the
2
The Clerk of the Court is directed to add these defendants to the docket report for this action.
3
The LTPC Unit is part of the Special Housing Unit ("SHU"). See Am. Compl. at 9.
4
Captain Admik is not a defendant herein.
3
law library.5 See Am. Compl. at 9; Dkt. No. 20-1 at 2.
On September 5, 2014, the Inmate Law Library Procedures, as outlined in the MidState C.F. Facility Operations Manual (No. 21.04), provided, in relevant part:
3.
Inmates in SHU areas may request, in writing, legal
assistance from the Law Library.
a.
All requests for assistance must be sent to the
Law Library Officer via facility mail and each
request should document what kind of service is
needed.
...
c.
SHU inmates will only be allowed to have two (2)
legal research resources in their possession at a
time. Pick-up and delivery of legal materials will
be made on a daily basis, Monday through
Sunday.
Dkt. No. 20-1 at 17. 6
In October 2014, Wellenstein was designated as the law library officer. See Am.
Compl. at 11. In November 2014 and December 2014, plaintiff had several arguments with
Wellenstein over access to reference books available for SHU inmates, copies of legal work
and printing court cases. See id. Wellenstein also insisted that plaintiff leave his legal work
in the library. See id. One week after an argument with Wellenstein, plaintiff received a Tier
II misbehavior report from C.O. Jordan ("Jordan") involving a razor.7 See Am. Compl. at 12,
13; Dkt. No. 20-7 at 3. After a disciplinary hearing, plaintiff was sentenced to thirty days in
5
The memorandum was copied to Superintendent Ward. See Dkt. No. 20-1 at 2.
6
Plaintiff refers to this as the "Cell Study Program." See Am. Compl. at 15.
7
Jordan is not a named defendant in this action. The amended complaint does not contain facts related
to the report and the report was not annexed as an exhibit to the amended complaint.
4
keeplock and a loss of privileges including phones, packages, commissary, and recreation. 8
See id. Plaintiff served the entire sentence and appealed the determ ination.9 See Am.
Compl. at 13.
On January 6, 2015, plaintiff filed a grievance claiming that Wellenstein interfered with
plaintiff's access to the courts when he refused to perform "word" and "key number
searches." See Am. Compl. at 13; Dkt. No. 20-3 at 11. As a result of Wellenstein's refusal
to perform the searches, plaintiff had to delay filing a habeas corpus petition and writ of error
coram nobis while he performed manual research on "outdated" digests. See id. On
January 20, 2015, plaintiff forwarded a memorandum to Carpenter, the Law Library
Supervisor, advising Carpenter that the stapler in the law library was inoperable and asked
for a replacement. See Dkt. No. 20-4 at 4.
In February 2015, plaintiff filed two grievances against Wellenstein claiming that
Wellenstein refused to make copies of legal documents. See Dkt. No. 20-3 at 8, 10.
On March 5, 2015, Goppert issued a Memorandum to the LTPC Population stating
that law library services would be modified to comply with the Facility Operations Manual.
Dkt. No. 20-1 at 3. LTPC inmates were advised to request, in writing, legal assistance from
the law library and to forward requests to the law library officer via facility mail. See id.
Consequently, plaintiff was forced to use the cell study program, controlled by Wellenstein,
which limited his legal research. See Am. Compl. at 15. Wellenstein deliberately and
intentionally restricted access to materials by delivering the wrong materials or delivering the
8
The amended complaint lacks any facts related to the hearing.
9
The amended complaint does not include information related to when or to whom plaintiff filed his
appeal.
5
same material multiple times. See id. Wellenstein also denied requests for materials on
Friday, Saturday and Sunday. See id. As a result, plaintiff was prevented from filing his
habeas corpus petition and writ of error coram nobis, which could have reduced his prison
time. See id.
On March 10, 2015, plaintiff filed a grievance against Wellenstein for failing to provide
a list of books available to SHU inmates and tax forms. See Am. Compl. at 16; Dkt. No. 20-3
at 12. On March 13, 2015, plaintiff received a misbehavior report, issued by C.O. Miller, for
smoking.10 See id. As a result of the report, plaintiff was sentenced to keeplock for six days
with a loss of phone privileges. See id.
On April 5, 2015, plaintiff filed a grievance claiming that Wellenstein committed fraud,
destroyed his property, refused to provide envelopes, a stapler or hole punch for legal
papers, refused to answer requests for legal material on the weekends, denied plaintiff legal
supplies and denied plaintiff access to current legal materials. See Dkt. No. 20-3 at 15-21.
On April 28, 2015, plaintiff filed a grievance against Wellenstein claiming that Wellenstein
was harassing plaintiff and deliberately destroying plaintiff's documents related to plaintiff's
error coram nobis and habeas corpus petition. See Dkt. No. 20-3 at 34.
On April 30, 2015, Wellenstein entered plaintiff's cell, without plaintiff's permission and
"pushed [plaintiff] aside." See Am. Compl. at 17; Dkt. No. 20-3 at 42. On the same day,
plaintiff filed a grievance with respect to the incident. Plaintiff described the occurrence as
follows:
On 4/30/15 after having me sign for materials through the feed
up port. He said he could smell smoke. He opened my cell
10
The report is not part of the exhibits annexed to the complaint. Miller is not a defendant herein.
6
door and pushed me aside and came into my cell. Wellenstein
looked around my cell made a couple of smart remarks then
left.
Dkt. No. 20-3 at 42.
On the same day, plaintiff received a misbehavior report from Wellenstein related to
the incident.11 See Am. Compl. at 17. As a result of the report, plaintiff was confined to
keeplock for nineteen days with a loss of privileges. See id.
On May 8, 2015, Wellenstein appeared at plaintiff's cell shouting "threats." See Am.
Compl. at 18. Wellenstein called plaintiff names and threatened plaintiff with violence and
misbehavior reports. See id. On May 11, 2015, plaintiff field a grievance related to the
incident. See id.; Dkt. No. 20-3 at 44. On May 14, 2015, plaintiff filed a grievance against
Wellenstein for failing to provide books related to mental health treatment and property
rights. See Am. Compl. at 19; Dkt. No. 20-3 at 46. On the same day, plaintiff filed a second
grievance complaining that he could not order legal materials on Saturday and Sunday due
to mail restrictions. See Am. Compl. at 19; Dkt. No. 20-3 at 47.
On May 26, 2015, plaintiff sent correspondence to Dr. Liu ("Liu") at Mid-State C.F.,
stating that he asked defendant, Nurse Practitioner Tourtelot ("Tourtelot") to provide plaintiff
with his 2013 medications because the current level of his medication was not strong enough
to calm his nerves and anxiety.12 See Dkt. No. at 20-6 at 73. Despite plaintiff's repeated
requests, Tourtelot refused to increase plaintiff's medication. See Am. Compl. at 39.
On July 21, 2015, plaintiff filed a grievance against Wellenstein for refusing to provide
11
The misbehavior report is not part of the record herein.
12
In September 2012, plaintiff was diagnosed with schizoaffective disorder, depressed type. See Am.
Compl. at 41-42. Liu is not a defendant herein.
7
plaintiff with envelopes, intentionally making distorted copies and tampering with his mail.
See Am. Compl. at 19; Dkt. No. 20-6 at 2-3.
On August 1, 2015, plaintiff filed a grievance against Wellenstein for failing to provide
copies of cases. See Am. Compl. at 20; Dkt. No. 20-6 at 4. On the same day, plaintiff
received two misbehavior reports. The first report charged plaintiff with violating the rules
pertaining to smoking13 and the second misbehavior report, from Wellenstein, charged
plaintiff with failing to obey a direct order. See Am. Compl. at 20; Dkt. No. 20-6 at 5, 6. On
August 7, 2015, plaintiff filed a grievance against Wellenstein for failing to make copies of
legal documents. See Am. Compl. at 21.; Dkt. No. 20-6 at 7. Plaintiff claimed that
Wellenstein was acting in retaliation for plaintiff's grievances against him. See id. Ward
responded and denied the grievance noting that plaintiff had not, "substantiated his claim
that he has been the victim of harassment by staff." See Dkt. No. 20-6 at 53. On August 17,
2015, plaintiff received a misbehavior report charging plaintiff with placing a three-way call in
violation of facility phone procedures. 14 See Dkt. No. 20-6 at 8. As a result of the
misbehavior report, plaintiff was confined in keeplock for eighteen days with a loss of
privileges. See Am. Compl. at 21. On August 20, 2015, plaintiff filed a grievance
complaining that he was being harassed and threatened by Wellenstein. See id.; Dkt. No.
20-6 at 10. On August 22, 2015, plaintiff filed a grievance stating Wellenstein refused to
provide large manilla envelopes for plaintiff to mail his legal work. See id.; Dkt. No. 20-6 at
11. On August 24, 2015, plaintiff received a misbehavior report from Wellenstein charging
13
The name of the officer who reported this violation is illegible. Dkt. No. 20-6 at 6. However, plaintiff
does not contend that the report was issued by Wellenstein.
14
The misbehavior report was not issued by Wellenstein.
8
plaintiff with harassment and threats. Dkt. No. 20-6 at 12.
On September 16, 2015, plaintiff filed a grievance claiming that Wellenstein destroyed
forty-five pages of legal exhibits. See Am. Compl. at 32. On September 18, 2015, Goppert
issued a memorandum stating that, as of September 22, 2015, LTPC inmates would be
allowed physical access to the law library. See id. at 22. On September 27, 2015, C.O.
Kiernan,15 Wellenstein's friend, issued a misbehavior report charging plaintiff with smoking.
See id.
On October 23, 2015, plaintiff filed a grievance claiming that Wellenstein placed a sign
on the copier indicating that it was "not in use" and refused to give the relief officer the
password for the copier. Dkt. No. 20-6 at 14. As a result, plaintif f had to "remake" pages
and have "10 copies re-notarized." See Dkt. No. 20-6 at 14.
On November 6, 2015, plaintiff filed a grievance against Wellenstein claiming that he
refused to make copies and routinely closed the library early. Dkt. No. 20-6 at 15. On
November 12, 2015, another inmate set fire to plaintiff's cell. See Am. Compl. at 33. On the
same day, plaintiff received a misbehavior report, issued by U. Upshaw ("Upshaw"),16
charging him with smoking, arson, making false statements, and possessing flammable
materials. See id.; Dkt. No. 20-6 at 24. The charges in the misbehavior report were
dismissed after plaintiff was confined in keeplock for eight days. See Am. Compl. at 40.
After the incident, plaintiff cleaned his old cell but Goppert refused to allow plaintiff to return
to his cell. See id. Instead, plaintiff was forced to occupy the second cell on the company,
15
Kiernan is not a defendant in this action.
16
Upshaw is not a defendant in this action.
9
next to the cell used as the inmate bathroom. See id. Plaintiff filed numerous complaints
with the security staff regarding his placement in a cell where he was "constantly harassed by
other inmates" and subjected to slamming doors, banging on the walls and defamatory
remarks. See id. at 40-41.
On November 18, 2015, Wellenstein issued a misbehavior report charging plaintiff
with harassment. See Dkt. No. 20-6 at 16. On November 19, 2015, plaintiff's cell was
searched. See Am. Compl. at 34. During the search, the officers walked on his legal work
and dumped his work into a pile with trash on top of it. See id. Plaintiff's envelopes were
confiscated and plaintiff's Koran was thrown in the garbage and removed from his cell. See
id. On November 22, 2015, plaintiff's cell was searched and his legal work was placed in
draft bags. See id.
On December 11, 2015, plaintiff received a misbehavior report from Wellenstein
charging plaintiff with harassment and failing to obey a direct order. See Am. Compl. at 34;
Dkt. No. 20-6 at 26. On December 8, 2015 and December 23, 2015, Wellenstein disposed
of a list of cases that plaintiff printed related to a decision and order in the civil rights action
presently before this court. See Am. Compl. at 35. On December 15, 2015, Ward issued a
decision denying plaintiff's November 18, 2015 grievance regarding "inefficient operation in
law library."17 See Dkt. No. 20-6 at 55. Ward found that plaintiff failed to substantiate his
claim that he was the victim of harassment. Dkt. No. 20-6 at 55.
On January 4, 2015, plaintiff was forced to submit to a "urine analysis." See Am.
Compl. at 35. On January 14, 2016, plaintiff filed a grievance claiming that the photocopier
17
The November 18, 2015 grievance is not annexed as an exhibit to the amended complaint.
10
was not operating correctly because Wellenstein manipulated the memory function. Dkt. No.
20-6 at 60. On January 6, 2016, plaintiff filed a grievance related to his cell location claiming
that he receives verbal abuse from other inmates.18 See Am. Compl. at 41. On January 15,
2016, Ward responded and denied the grievance noting that plaintiff was not entitled to the
housing and/or bed location of his choice. See id.; Dkt. No. 20-6 at 58.
On January 14, 2016, plaintiff had a medical appointment and, at 8:30 A.M., plaintiff
was waiting for the medical trip officers to escort him to the appointment. See Am. Compl. at
42. At 8:30 A.M., 9:30 A.M., 10:30 A.M. and 12:30 P.M., def endant Corrections Officer
Digert ("Digert") repeatedly told plaintiff that the "trip officers were coming." See id. When
the trip officers failed to appear, plaintiff assumed that the medical appointment was
cancelled and, being a diabetic, plaintiff decided to eat and drink a cup of coffee. See id. at
42-43. At approximately 1:45 P.M., plaintiff was transferred to a local hospital for a heart
test. See id. at 43. Upon arrival, plaintiff was advised that the test could not be performed
and needed to be rescheduled because plaintif f drank coffee. See id. Plaintiff was deemed
to have "refused" the appointment. See Am. Compl. at 36, 42.
From 2010 until January 2016, plaintiff had a prayer rug in his cell. See Am. Compl.
at 37. On January 16, 2016, Carpenter told plaintiff that he did not have the proper permits
for the rug and confiscated the rug because plaintiff was not a registered Muslim.19 See id.
Plaintiff asked to retain his rugs until he filed the proper form and a grievance but his request
was denied. See Am. Compl. at 37. Plaintiff was compelled to mail the prayer rug to his
18
The grievance was not annexed as an exhibit to the complaint.
19
Plaintiff concedes that he changed he never filed a change of religion form. See Am. Compl. at 37.
11
home. See id.
On January 18, 2016, at approximately 4:00 P.M., someone "slammed plaintiff's cell
door" causing a coffee cup to spill onto plaintiff's legal work. See Am. Compl. at 38.
Plaintiff's legal work was destroyed. See id. Plaintiff assumed that the person who slammed
the door was Inmate Donah and retaliated by dropping a tray of milk in Donah's cell. See id.
at 44. At 9:05 P.M., Donah assaulted plaintif f while plaintiff was in the recreation room and a
fight ensured. See id. at 44. Plaintiff later learned that Wellenstein slammed plaintiff's cell
door shut. See Am. Compl. at 38, 44. After the assault, without a disciplinary hearing,
plaintiff was locked in his cell and his property, including legal work, was confiscated. See id.
Plaintiff's property was placed in a storage room. See id. On January 23, 2016, plaintiff's
property was returned to him, but his file related to his Section 1983 civil rights complaint was
missing. See id.
Construed liberally, the amended complaint contains the following claims: (1)
Wellenstein, Goppert and Ward violated plaintiff's First Amendment right to access to the
courts; (2) Wellenstein violated plaintiff's Eighth Amendment rights with use of excessive
force; (3) Digert and Tourtelot were deliberately indifferent to plaintiff's serious medical needs
in violation of plaintiff's Eighth Amendment rights; (4) conditions of confinement claims; (5)
Carpenter and Goppert violated plaintiff's First Amendment rights to religious freedom; (6)
Ward and Wellenstein denied plaintiff's FOIL requests; (7) plaintiff's property was destroyed
in violation of his constitutional rights; (8) defendants retaliated against plaintiff in violation of
his First Amendment rights; and (9) supervisory claims against Carpenter, Ward and
Goppert. See Am. Compl.
12
IV.
Analysis
A.
Access to Court Claims
The Court discussed the law pertaining to First Amendment claims and access to the
courts in the December Order. See Dkt. No. 11 at 5-6. The Court dismissed plaintiff's
access to court claims holding:
Here, plaintiff alleges that he was denied access to the courts
because he would not "be able to address conditions of
confinement, appeals, and the ability to respond to the Attorney
General now or in the future, or be able to submit any effective
brief's [sic] and memorandums of law." See Compl. at 10.
Plaintiff also claims that he was not able to bind any of his
briefs or documents due to defendants' failure to provide
supplies. Id. at 6. Plaintiff does not state any facts to plausibly
suggest that he suffered any injury related to a legal claim or
material prejudice as a result of defendants' actions, or
inactions. The complaint lacks facts establishing that
defendants' misconduct resulted in "actual harm" such as the
"the dismissal of an otherwise meritorious legal claim." See
Cancel v. Goord, No. 00 Civ 2042, 2001 WL 303713, at *4
(S.D.N.Y. March 29, 2001) ("[I]n order to survive a motion to
dismiss [an access-to-the-courts claim] a plaintiff must allege
not only that the defendant's conduct was deliberate and
malicious, but also that the defendant's actions resulted in
actual injury to the plaintiff such as the dismissal of an
otherwise meritorious legal claim.").
Dkt. No. 11 at 6.
In the amended complaint, plaintiff reasserts his allegations against Wellenstein and
pleads additional facts and a cause of action against Ward and Goppert.
1.
Wellenstein
Plaintiff claims that Wellenstein infringed upon his First Amendment right to access to
the courts. Plaintiff also claims that Wellenstein knew that the law library was inadequate
and refused to correct the deficiencies. See id. at 30. In the amended complaint, plaintiff
13
claims that from November 2014 until January 2016, Wellenstein refused to provide plaintiff
with legal materials including books, computer assistance, supplies, copies of cases and
exhibits for legal submissions. See Am. Compl. at 11, 14, 20, 21. Plaintiff also alleges that
Wellenstein deliberately "mixed up" and destroyed legal exhibits, played the radio in the
library to disrupt inmates and closed the library early. See id. at 13, 15, 20, 23, 25, 33, 38.
As the supervisor of the Cell Study Program, Wellenstein delivered the wrong materials and
refused to accept legal requests on Friday, Saturday, and Sunday. See id. at 15, 23 and 25.
With respect to the library, the books have not been updated since 2011 and the Law Journal
Magazine is the only publication available to LTPC inmates that contains current caselaw
and court decisions. See Am. Compl. at 30.
As a result of Wellenstein's actions, plaintiff asserts that he was prevented from filing
a writ of error coram nobis, a petition for habeas corpus relief, a petition with the Department
of Veterans' Affairs, an Article 78 petition and an appeal with the New York State Retirement
System. See Am. Compl. at 10, 11, 35, 39, 46, 47. Plaintif f also alleges that his
submissions in his Court of Claims case and in the civil matter currently before this court
were delayed as a result of defendants' actions. See Am. Compl. at 24, 32, 34, 35, 45.
At this juncture, the Court finds that plaintiff's First Amendment access to court claims
against Wellenstein survive sua sponte review and require a response. In so ruling, the
Court expresses no opinion as to whether these claims can withstand a properly filed motion
to dismiss or for summary judgment.
2.
Ward and Goppert
Plaintiff contends that Goppert and W ard violated his First Amendment rights because
14
he was denied plaintiff physical access to the law library.20 See Am. Compl. at 26.
The constitutional right to access to the courts encompasses the right to meaningful
access to legal materials, not physical access to a law library. See Benjamin v. Jacobson,
923 F.Supp. 517, 522 (S.D.N.Y. 1996) (citing Bounds v. Smith, 430 U.S. 817, 823 (1977)).
Here, plaintiff has failed to plead facts suggesting that defendants violated his constitutional
rights by restricting him to the cell study program from March 2015 until September 2015.
See Clanton v. Horn, 2009 WL 1285868, at *1 (S.D.N.Y. May 4, 2009) (finding no
constitutional violation in cell study program as the plaintiff was provided an "adequate
alternative means of performing legal research.").
Consequently, plaintiff's First Amendment claims against Ward and Goppert are
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) f or failure to
state a claim upon which relief may be granted.21
B.
Eighth Amendment Claims
1.
Excessive Force
The Eighth Amendment's prohibition against cruel and unusual punishment
encompasses the use of excessive force against an inmate, who must prove two
components: (1) subjectively, that the defendant acted wantonly and in bad faith, and (2)
objectively, that the defendant's actions violated "contemporary standards of decency."
Blyden v. Mancusi, 186 F.3d 252, 262-63 (2d Cir. 1999) (internal quotations omitted) (citing
20
In March 2015, Goppert issued a memorandum prohibiting LTPC inmates from having physical
access to the law library. See Dkt. No. 20-1 at 3. On September 18, 2015, Goppert issued a memorandum
directing that LTPC inmates have physical access to the law library. See Am. Compl. at 22.
21
Plaintiff also alleges that Goppert implemented a policy by which legal requests would not be picked
up on Friday, Saturday, and Sunday and Ward "knew the law library was inadequate." See Am. Compl. at 19,
30. These allegations are discussed in Part IV(F), infra.
15
Hudson v. McMillian, 503 U.S. 1, 8 (1992)). In this regard, while "a de minimis use of force
will rarely suffice to state a constitutional claim," Romano v. Howarth, 998 F.2d 101, 105 (2d
Cir. 1993), the malicious use of force to cause harm constitutes an Eighth Amendment
violation per se because in such an instance "contemporary standards of decency are always
violated." Blyden, 186 F.3d at 263 (citing Hudson, 503 U.S. at 9). The key inquiry into a
claim of excessive force is "whether force was applied in a good-faith effort to maintain or
restore discipline, or maliciously and sadistically to cause harm." Hudson, 503 U.S. at 7
(citing Whitley v. Albers, 475 U.S. 312, 321-22 (1986)); see Johnson v. Glick, 481 F.2d 1028,
1033 (2d Cir. 1973); see also Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam)
explaining that the nature of the force applied is the "core judicial inquiry " in excessive force
cases—not "whether a certain quantum of injury was sustained"). "Accordingly, when
considering the subjective element of the governing Eighth Amendment test, a court must be
mindful that the absence of serious injury, though relevant, does not necessarily negate a
finding of wantonness." Wynter v. Ramey, No. 11-CV-0257 (DNH/DEP), 2013 WL 5465343,
at *5 (N.D.N.Y. Sept. 30, 2013) (citations omitted).
In this case, plaintiff claims that Wellenstein "assaulted" him on April 30, 2015. See
Am. Compl. at 17. Plaintiff makes no specific accusation regarding the force exerted but
summarily states that Wellenstein "assaulted [him] by pushing me around my cell." See id.
Plaintiff's grievance, filed on the same day, belies his excessive force claims. In the
grievance, plaintiff stated that Wellenstein, "opened my cell door and pushed me aside and
came into my cell." See Dkt. No. 20-3 at 42. Plaintiff did not describe the incident as an
"assault" or an "attack" and did not suggest that the use of force was more than de minimis.
16
See Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997) (holding that the plaintiff's
allegations that he was "bumped, grabbed, elbowed, and pushed" by the defendants did not
"approach an Eighth Amendment claim"). Plaintiff's allegations against Wellenstein fail to
suggest that Wellenstein used malicious force that caused plaintiff harm. Consequently,
plaintiff's Eighth Amendment excessive force claims are dismissed pursuant to 28 U.S.C.
§ 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may
be granted.
2.
Deliberate Indifference to Serious Medical Needs
To state an Eighth Amendment claim for medical indifference, a plaintiff must allege
that the defendant was deliberately indifferent to a serious medical need. See Farmer v.
Brennan, 511 U.S. 825, 834 (1994). Deliberate indif ference has two necessary components,
one objective and the other subjective. See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.
1996). The objective component of an Eighth Amendment deliberate indifference claim
"requires that the alleged deprivation must be sufficiently serious, in the sense that a
condition of urgency, one that may produce death, degeneration, or extreme pain exists."
Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (quoting Hathaway, 99 F.3d at 553)
(internal quotation marks omitted). Under the subjective element, medical mistreatment rises
to the level of deliberate indifference only when it "involves culpable recklessness, i.e., an act
or a failure to act . . . that evinces 'a conscious disregard of a substantial risk of serious
harm.'" Chance v. Armstrong, 143 F. 3d 698, 703 (2d Cir. 1998) (quoting Hathaway, 99 F.3d
at 553). "Deliberate indifference requires more than negligence but less than conduct
undertaken for the very purpose of causing harm." Hathaway v. Coughlin, 37 F.3d 63, 66
17
(2d Cir. 1994). To assert a claim for deliberate indifference, an inmate must allege that (1) a
prison medical care provider was aware of facts from which the inference could be drawn
that the inmate had a serious medical need; and (2) the medical care provider actually drew
that inference. Farmer, 511 U.S. at 837; Chance, 143 F.3d at 702. The inmate must also
demonstrate that the provider consciously and intentionally disregarded or ignored that
serious medical need. Farmer, 511 U .S. at 835.
Here, plaintiff claims that he is diabetic and suffers from chest pains, anxiety,
depression, and stress. See Am. Compl. at 39, 43. Even assuming that plaintiff suffered
from a serious medical need, plaintiff must allege facts suggesting that defendants acted with
the necessary culpable state of mind.
a.
Digert
Plaintiff claims that due to Digert's deliberate and intentional conduct, plaintif f's heart
stress test was cancelled and rescheduled. See Am. Compl. at 36, 42. As a result, plaintiff
suffered from constant and "prolonged" chest pains. See id. "Non-medical prison personnel
engage in deliberate indifference where they 'intentionally delayed access to medical care
when the inmate was in extreme pain and has made his medical problem known to the
attendant prison personnel.'" Baumann v. Walsh, 36 F. Supp. 2d 508, 512 (N.D.N.Y. 1999).
Here, the amended complaint does not suggest that plaintiff was in any pain while he
awaited his transport to the hospital for the stress test. The amended complaint is void of
any facts suggesting that Digert knew that plaintiff suffered from any serious medical
condition or that plaintiff sustained any substantial harm or pain due to the delay in
transporting plaintiff. Plaintiff does not claim that he voiced any concern to Digert about the
18
delay. Cf. Hoover v. Hardman, No. 99-CV-1855 (FJS), 2005 WL 1949890, at *6 (N.D.N.Y.
Aug. 15, 2005) (finding an issue of fact where the plaintiff claimed that the defendant delayed
his access to medical care with the knowledge that the plaintiff was in extreme pain).
Moreover, plaintiff does not allege the Digert knew that plaintiff was diabetic or that Digert
somehow forced or compelled plaintiff to "have something to eat and a cup of coffee."
Rather, that was plaintiff's decision and, as a result, his stress test states was rescheduled.
See Am. Compl. at 43. Nothing in the amended complaint suggests that Digert was
deliberately indifferent to plaintiff's medical needs.
Plaintiff's Eighth Amendment deliberate indifference claims against Digert are
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) f or failure to
state a claim upon which relief may be granted.
b.
Tourtelot
Plaintiff claims that Tourtelot was deliberately indifferent to his medical needs when
she refused to provide plaintiff with his "2013 medications." See Am. Compl. at 39. Plaintiff
has not plead facts suggesting that Tourtelot was aware that withholding unspecified
medication would result in an excessive risk to plaintiff's health or that defendant acted with
the necessary culpable state of mind. See Baskerville v. Blot, 224 F. Supp. 2d 723, 735-36
(S.D.N.Y. 2002) (dismissing Eighth Amendment claim because the plaintiff's assertions did
not suggest that the defendant "acted intentionally to withhold prescribed medication or was
in any way responsible for the delay in obtaining a refill of his medication from the outside
pharmacy"). Plaintiff's allegation amounts to nothing more than a quarrel over the nature of
his treatment. See Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir.1998) ("Courts have
19
repeatedly held that disagreements over treatment do not rise to the level of a Constitutional
violation."). Plaintiff's Eighth Amendment deliberate indifference claims against Tourtelot are
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) f or failure to
state a claim upon which relief may be granted.
3.
Conditions of Confinement
From March 13, 2015 through January 31, 2016, plaintiff was placed in keeplock
confinement, with a loss of recreation, for a total of 108 days. See Am. Compl. at 42. As a
result, plaintiff suffered from severe mental disorders and "many other symptoms." See id.
Even assuming plaintiff's allegations are sufficient to satisfy the objective prong of the Eighth
Amendment analysis, the complaint lacks facts establishing which correctional officers were
responsible or personally involved in the alleged unconstitutional conditions. It is well settled
that "personal involvement of defendants 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)). Thus, "a
Section 1983 plaintiff must 'allege a tangible connection between the acts of the defendant
and the injuries suffered.'" Austin v. Pappas, No. 04-CV-7263, 2008 WL 857528, at *2
(S.D.N.Y. Mar. 31, 2008) (quoting Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986)) (other
citation omitted). Here, plaintiff does not identify who was responsible for his keeplock
confinement, whether he complained about his conditions of confinement and, if so, to whom
he forwarded complaints. Plaintiff has not pleaded any facts against the defendants related
to his conditions of confinement and thus, has failed to sufficiently allege that any defendant
acted with a deliberate state of mind. Consequently, plaintiff's Eighth Amendment claims
20
related to his conditions of confinement are dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)
and 28 U.S.C. § 1915A(b) for failure to state a claim. See Toliver v. Dep't of Corrs., No. 10
Civ. 6298, 2012 WL 4510635, at *9 (S.D.N.Y. Apr. 10, 2012) (dismissing the deliberate
indifference claim for failure to plead facts identifying a responsible official who acted with a
sufficiently culpable state of mind).
C.
First Amendment Religious Freedom Claims
Plaintiff claims that Carpenter and Goppert denied plaintif f the right to exercise his
religious beliefs when they confiscated plaintiff's prayer rug. See Am. Compl. at 51.
Prisoners have long been understood to retain some measure of the constitutional protection
afforded by the First Amendment's Free Exercise Clause. See Ford v. McGinnis, 352 F.3d
582, 588 (2d Cir. 2003) (citing Pell v. Procunier, 417 U.S. 817, 822 (1974)); see also Nolley
v. County of Erie, No. 07-CV-488S, 2008 WL 859165 (W.D.N.Y. Mar. 31, 2008) (applying
First Amendment freedom of religion protections to a pretrial detainee). "Balanced against
the constitutional protections afforded prison inmates, including the right to free exercise of
religion, [however,] are the interests of prison officials charged with complex duties arising
from administration of the penal system." Id. (citing Benjamin v. Coughlin, 905 F.2d 571, 574
(2d Cir. 1990)). To state a First Amendment Free Exercise claim, a plaintiff must allege that
(1) the practice asserted is religious in the person's scheme of beliefs, and that the belief is
sincerely held; (2) the challenged practice of the prison officials infringes upon the religious
belief; and (3) the challenged practice of the prison officials furthers some legitimate
penological objective. Farid v. Smith, 850 F.2d 917, 926 (2d Cir.1988) (citations omitted). A
prisoner "must show at the threshold that the disputed conduct substantially burdens his
21
sincerely held religious beliefs." Salahuddin v. Goord, 467 F.3d 263, 274–75 (2d Cir. 2006)
(citing Ford, 352 F.3d at 591). A religious belief is "sincerely held" when the plaintiff
subjectively, sincerely holds a particular belief that is religious in nature. Ford, 352 F.3d at
590. A prisoner's sincerely held religious belief is "substantially burdened" where "the state
puts substantial pressure on an adherent to m odify his behavior and to violate his beliefs."
Jolly v. Coughlin, 76 F.3d 468, 476–77 (2d Cir.1996). Once a p laintiff establishes that a
sincerely held religious belief has been substantially burdened,"[t]he defendants then bear
the relatively limited burden of identifying the legitimate penological interests that justify the
impinging conduct; the burden remains with the prisoner to show that these articulated
concerns were irrational." Salahuddin, 467 F.3d at 275 (quoting Ford, 352 F.3d at 595)
(punctuation omitted).
Here, the amended complaint lacks any facts establishing that plaintiff's religious
beliefs were "sincerely held" or that his beliefs were "substantially burdened." Indeed, the
complaint contains nothing more than vague accusations that plaintiff was forced to send his
rug home and is "still without a prayer rug to say his prayer's [sic]" without dates, times or
facts establishing how he was burdened. The allegations, without more, fail to plausibly
suggest that Carpenter or Goppert burdened plaintif f's right to freely practice his religion.
Thus, plaintiff's First Amendment claims against are dismissed pursuant to 28 U.S.C.
§ 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may
be granted.22
22
To the extent that the amended complaint could be construed as asserting a claim for a First
Amendment violation based upon the allegation that plaintiff's Koran was thrown in the garbage and removed
from his cell during the November 2015 cell search, that claim is subject to dismissal. The amended complaint
does not contain any facts related to who was responsible for this action. Indeed, the amended complaint lacks
any facts identifying any officer involved in the cell search.
22
D.
FOIL Requests
In the amended complaint, plaintiff claims that he filed twelve FOIL requests for the
following documents: Captain Goppert's March 2015 memorandum; all grievances filed
related to the law library; Directive 4933; facility operations manual; legal materials request
forms; and legal materials sign out sheet for April 20, 2015 and April 21, 2015. See Am.
Compl. at 31, 47; Dkt. No. 20-4 at 20-25.
A violation of New York State FOIL does not give rise to a federal claim under Section
1983. Sonds v. Cuomo, No. 9:11-CV-0895 (NAM/ATB), 2012 WL 952540, at *3 (N.D.N.Y.
Feb. 3, 2012) ("Plaintiff's state FOIL request cannot be the basis of a federal action."); see
also Pollnow v. Glennon, 757 F.2d 496, 501 (2d Cir. 1985) ("Clearly, a violation of state law
is not cognizable under § 1983."). "The appropriate vehicle for challenging denials of access
guaranteed by the New York Freedom of Information law is a state court proceeding
pursuant to N.Y.C.P.L.R. Article 78 upon exhaustion of administrative remedies." Schuloff v.
Fields, 950 F. Supp. 66, 67-68 (E.D.N.Y. 1997); Posr v. City of N.Y., No. 10-CV-2551, 2013
WL 2419142, at *14 (S.D.N.Y. June 4, 2013) ("Under New York state law, if an agency or
government official fails to comply with the provisions of FOIL, the person submitting the
FOIL request must pursue an administrative appeal or seek remedies in state court pursuant
to N.Y. C.P.L.R. Article 78." (citing N.Y. Pub. Off. Law § 89)).
Accordingly, plaintiff's claim that defendants violated FOIL is dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief
may be granted pursuant to Section 1983.
E.
Destruction of Property
23
Plaintiff claims that his property was destroyed during the January 2015 cell search.
See Am. Compl. at 38. The Supreme Court has held that the unauthorized intentional
destruction of prisoner's property may not be the basis for constitutional claims if sufficient
post deprivation remedies are available to address the claim. Hudson v. Palmer, 468 U.S.
517, 531 (1984) (citing Parratt v. Taylor, 451 U.S. 527, 541 (1981)); see Rivera-Powell v.
N.Y.C. Bd. of Elections, 470 F.3d 458, 465 (2d Cir. 2006) ("When the state conduct in
question is random and unauthorized, the state satisfies procedural due process
requirements so long as it provides meaningful post deprivation remedy."); Davis v. New
York, 311 F. App'x 397, 400 (2d Cir. 2009) ("An alleged loss of property, 'whether intentional
or negligent - will not support a due process claim redressable under § 1983 if adequate
state post-deprivation remedies are available.'") (quoting Hudson, 468 U.S. 533). "New York
in fact affords an adequate post-deprivation remedy in the form of, inter alia, a Court of
Claims action." Jackson v. Burke, 256 F.3d 93, 96 (2d Cir. 2001). Because plaintif f has
access to adequate state law remedies, he has not been deprived of property without due
process of law and therefore cannot state a claim for relief pursuant to Section 1983. See
Love v. Coughlin, 714 F.2d 207, 208-09 (2d Cir. 1983) (per curiam). Plaintiff's claims are
also subject to dismissal as plaintiff failed to identify any individual involved in or responsible
for the cell search. For the reasons set forth herein and in Part IV(B)(3), plaintiff's claim that
defendants destroyed his property is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28
U.S.C. § 1915A(b) for failure to state a claim upon which relief may be granted pursuant to
Section 1983
F.
Supervisory Claims
24
In the original complaint, plaintiff alleged that Ward was personally involved in the
constitutional violations because he reviewed plaintiff's grievance appeals and was
responsible for the "care and custody of inmates." See Compl. at 11. In the December
Order, the Court discussed the law related to supervisory liability. See Dkt. No. 11 at 10-12.
The Court dismissed plaintiff's claims holding:
Even assuming plaintiff sufficiently pleaded a constitutional
violation, plaintiff's claims against Ward are subject to dismissal
as the allegations are nothing more than legal conclusions,
unsupported by any facts. The complaint lacks any facts
establishing that Ward was personally involved in any decision
related to plaintiff's use of the law library or access to legal
materials. The conclusory assertion that Ward was responsible
for "grievance appeals" is unsupported by the 237 pages of
exhibits or any facts that plausibly suggest that Ward was
"confronted with a situation that he failed to remedy."
Id. at 12.
In the amended complaint, plaintiff attempts to cure the deficiencies in his allegations
against Ward and asserts new supervisory claims against Goppert and Carpenter.
1.
Ward
Plaintiff reiterates his claim that Ward was aware of Wellenstein's actions because he
responded to plaintiff's grievances. See Am. Compl. at 23, 27, 31. Plaintiff also contends
that Ward knew that the law library was inadequate. "[C]ourts in this circuit have held that
personal involvement may be found where a supervisor receives, reviews, and responds to a
plaintiff's grievance." Lewis v. Wallace, No. 9:11-CV-0867 (DNH/DEP), 2013 WL 1566557,
at *5 (N.D.N.Y. Feb. 22, 2013) (collecting cases) report and recommendation adopted, No.
9:11-CV-0867 DNH/DEP, 2013 WL 1566555 (N.D.N.Y. Apr. 12, 2013).
Plaintiff identified four grievances that he filed against Wellenstein in August 2015,
25
and December 2015 and annexed copies of Ward's responses to those grievances. See
Dkt. No. 20-6 at 53, 55. In those grievances, plaintiff refers to Wellenstein's alleged
retaliatory conduct and the inefficient operation in the law library. See id. At this juncture,
the Court finds that plaintiff's supervisory claims against Ward survive sua sponte review and
require a response. In so ruling, the Court expresses no opinion as to whether this claim can
withstand a properly filed motion to dismiss or for summary judgment.
2.
Goppert
In the amended complaint, plaintiff claims that Goppert was aware of Wellenstein's
harassment because Goppert responded to plaintif f's appeals related to his disciplinary
hearings. See Am. Compl. at 23, 27, 31, 40, 44. "[W]hile personal involvement cannot be
founded solely on supervision, liability can be found if the official proactively participated in
reviewing the administrative appeals as opposed merely to rubber-stamping the results."
Woodward v. Mullah, No. 08–CV–0436A, 2009 W L 4730309, at * 2–3 (W .D.N.Y. Dec.7,
2009) (quoting Hamilton v. Smith, 2009 WL 31995331, at * 22 (N.D.N.Y. 2009), report and
recommendation adopted as modified, 2009 WL 3199520). The amended complaint lacks
facts to plausibly suggest that Goppert reviewed any appeal. Indeed, the amended
complaint is void of any facts related to any disciplinary hearings or appeals including when,
where or how plaintiff appealed. Without such allegations, plaintiff has failed to plead that
Goppert investigated or reviewed his appeals to establish personal involvement in any
constitutional violation. See Brown v. Brun, No. 10-CV-0397A, 2010 WL 5072125, at *3
(W.D.N.Y. Dec. 7, 2010) (holding that the allegation that the defendant upheld the hearing,
without more, was insufficient to state a claim against the defendant).
26
Plaintiff also claims that Goppert implemented a policy inconsistent with Section 21.04
of the Facilities Operation Manual because he "told law library officers they did not have to
pick up request forms on weekends." See Am. Compl. at 19. In support of his claims against
Goppert, plaintiff annexed copies of correspondence addressed to Goppert wherein plaintiff
advised that his legal requests were not being picked up on the weekends and claimed that
Wellenstein intentionally destroyed his legal exhibits. See Dkt. No. 20-4 at 12, 14. The
Second Circuit has cautioned against dismissing claims for failure to allege personal
involvement without granting leave to amend where the plaintiff may allege that an official
failed to respond to a letter of complaint. Grullon v. City of New Haven, 720 F.3d 133, 141
(2d Cir. 2013) (holding that a prisoner's letter of complaint sent to a prison warden "at an
appropriate address and by appropriate means" would suffice to state facts plausibly
suggesting personal involvement). While cognizant of Grullon, the Court finds that, as
presently pleaded, plaintiff has failed to establish that Goppert was personally involved in any
constitutional deprivation. While the memoranda contain Goppert's name, plaintiff has failed
to plead facts establishing where the memoranda were sent, by what means they were
forwarded and what response, if any, he received from Goppert. Without more, the
allegations are not enough to allege personal involvement in any constitutional deprivation.
See Guillory v. Cuomo, 616 F. App'x 12, 14 (2d Cir. 2015) (summary order). Plaintiff's
supervisory claims against Goppert are dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) and
28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be granted.
3.
Carpenter
Plaintiff alleges that Carpenter, as the law library supervisor, was responsible for
27
Wellenstein's actions. As the Court discussed in the Decem ber Order, conclusory
allegations that a supervisor failed to monitor a subordinate are insufficient to establish
personal liability. See Dkt. No. 11 at 11. The allegations in the amended complaint do not
cure the deficiencies in plaintiff's supervisory claim against Carpenter. While plaintiff
annexed a copy of a letter to Carpenter, the letter does not mention Wellenstein and merely
advised Carpenter that the law library stapler was inoperable.23 See Am. Compl. at 14; Dkt.
No. 20-4 at 4. For the reasons set forth in the December Order, plaintiff's supervisory claims
against Carpenter are dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C.
§ 1915A(b) for failure to state a claim upon which relief may be granted.
G.
First Amendment Retaliation Claims
The Court discussed the law pertaining to retaliation claims in the December Order.
See Dkt. No. 11 at 6-8. In the amended complaint, plaintiff reiterates his retaliation claims
against Wellenstein and asserts additional retaliation claims against other defendants.
1.
Claims Against Wellenstein
In the original complaint, plaintiff alleged that Wellenstein retaliated against him when
he filed a false misbehavior report and destroyed plaintiff's legal work. See Compl. at 11.
The Court dismissed the claim holding:
In this instance, plaintiff annexed copies of several grievances
filed against Wellenstein. See Dkt. No. 1-2. Even assuming
plaintiff sufficiently pleaded that he engaged in protected
conduct and that the destruction of legal work and receipt of a
misbehavior report constitute adverse actions, the complaint
lacks any facts suggesting a causal connection between the
conduct and actions. The complaint is devoid of any facts
23
As discussed in Part IV(F)(2), the amended complaint does not contain any facts related to where
plaintiff forwarded this letter to Carpenter, how it was forwarded or what response, if any, plaintiff received.
28
related to the substance of the misbehavior report, the date
that it was issued, or any other circumstantial evidence to
suggest a causal relationship. Plaintiff's conclusory allegations
fail to state a claim for retaliation against Wellenstein. See
Geer v. Brown, No. 14-CV-650 (DNH/CFH), 2015 WL 847426,
at *2 (N.D.N.Y. Feb. 26, 2015) (finding that the plaintiff failed to
proffer any facts showing a causal connection between filing
grievances and a false misbehavior report).
Dkt. No. 11 at 8.
In the amended complaint, plaintiff provided facts related to eighteen grievances that
he filed against Wellenstein from January 6, 2015 through November 15, 2015. See Dkt. No.
20-3 at 2, 3, 8, 10-12, 15-21, 34, 42, 43, 44, 46 and 47; Dkt. No. 20-6 at 1-4, 10, 14 and 15.
Plaintiff also alleges that as a result of filing those grievances, Wellenstein retaliated against
him when he issued misbehavior reports in April 2015, August 2015, November 2015 and
December 2015.24 See Dkt. No. 20-6 at 5-6, 8, 12, 24 and 26. Plaintif f further contends that
Wellenstein assaulted him, denied him access to the courts and threatened him in retaliation
for grievances filed in April 2015 and May 2015. See Am. Compl. at 17, 18, 32.
The Court finds that the retaliation claims against Wellenstein survive sua sponte
review and require a response. In so ruling, the Court expresses no opinion as to whether
these claims can withstand a properly filed motion to dismiss or for summary judgment.
2.
Package Room Incident, Cell Search, and Urinalysis
Plaintiff asserts retaliation claims based upon the following incidents: (1) on August
22, 2015, the "package room officer" refused to provide a large manilla envelope for plaintiff
to mail his personal and legal mail; (2) retaliatory cell search on November 19, 2015; (3)
24
Plaintiff annexed copies of the grievances and misbehavior reports as exhibits to the amended
complaint.
29
January 14, 2016 "urine analysis"; and (4) keeplock confinement. See Am. Compl. at 18, 2021, 34, 35. Plaintiff contends that these incidents occurred in retaliation f or "the numerous
grievances filed on the law library." See id.
With respect to these incidents, plaintiff does not identify the person or persons
responsible for the alleged conduct and has not named any "John Doe" defendants.
Plaintiff's failure to identify the parties responsible for the aforementioned incidents requires
the Court to dismiss these retaliation claims. See Renelique v. Doe, No. 99 CIV.10425, 2003
WL 23023771, at *12 (S.D.N.Y. Dec. 29, 2003) (finding that plaintiff failed to name, as
defendants, any individuals who were personally involved with the denial of medical care).
3.
Retaliation Claims Based Upon Misbehavior Reports Issued by Other
Officers
Plaintiff claims that he received five misbehavior reports from individuals other than
Wellenstein, in retaliation for the grievances plaintiff filed against Wellenstein. Specifically,
plaintiff alleges that Jordan, 25 Miller, Upshaw, and Kieran, among others, issued misbehavior
reports in retaliation for plaintiff filing grievances against Wellenstein. See Am. Compl. at 13,
16, 20-21, 32 and 33. The aforementioned individuals are not named in the caption of the
complaint or otherwise identified as defendants in this action and thus, plaintiff's claims are
subject to dismissal. See Lewis v. Cunningham, No. 05 Civ. 9243, 2007 WL 2412258, at *3
(S.D.N.Y. Aug. 23, 2007) (dismissing retaliation claims against staff who were not defendants
in the action).
4.
Retaliation Claims Against Carpenter, Digert, and Goppert
25
With respect to the misbehavior report issued by Jordan, the amended complaint lacks any facts
suggesting that plaintiff engaged in any protected conduct prior to the date that the misbehavior report was
issued.
30
Plaintiff contends that, in November 2015, Goppert refused to allow him the return to
his original cell after the fire and confiscated his prayer rug in retaliation for the grievances
filed against Wellenstein. See Am. Compl. at 40. Plaintiff also claims that, in January 2016,
Carpenter confiscated his prayer rug in retaliation for the "many grievances and lawsuits filed
against them and their agents." See id. at 51. Plaintiff asserts a retaliation claim against
Digert claiming that, on January 14, 2016, Digert intentionally lied to plaintiff resulting in the
cancellation of plaintiff's medical appointment in retaliation for the grievances and law suits
plaintiff filed against Wellenstein. See id. at 20.
Even assuming that plaintiff engaged in protected conduct and that the
aforementioned actions were "adverse," these retaliation claims are subject to dismissal.
The amended complaint lacks facts suggesting a causal connection between the action and
any of plaintiff's grievances. Plaintiff has failed to plead how Goppert, Digert and Carpenter
became aware that plaintiff engaged in protected conduct, i.e., filed grievances. See Faulk v.
Fischer, 545 F. App'x 56, 59 (2d Cir. 2013) (holding that the plaintiff failed to produce
evidence suggesting that the defendants were "motivated by, or even aware of," his
grievance); see also Davidson v. Talbot, No. 01-CV-473 (RFT), 2005 WL 928620, at *16
(N.D.N.Y. March 31, 2005) (concluding that the plaintiff's allegation that he was attacked for
filing grievances failed to allege when the grievances were filed and thus, "th[e] Court had no
way of assessing the [ ] validity of such claim[]."); see Guillory v. Haywood, No. 13-CV-1564
(MAD/TWD), 2015 WL 268933, at *23 (N.D.N.Y. Jan. 21, 2015) (dismissing claim where the
plaintiff failed to allege facts identifying the lawsuits or facts from which her awareness could
be inferred). The allegations in the amended complaint fail to sufficiently plead a retaliation
31
claim related to these incidents.
V.
CONCLUSION
WHEREFORE, it is hereby
ORDERED that the amended complaint (Dkt. No. 20), and all exhibits annexed thereto
is accepted for filing and is deemed the operative pleading; and it is further
ORDERED that the Clerk of the Court is directed to add Goppert, Digert, Carpenter,
and Tourtelot to the docket as defendants herein; it is further
ORDERED that the following claims are DISMISSED pursuant to U.S.C.
§ 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may
be granted: (1) First Amendment access to court claims against Ward and Goppert; (2)
Eighth Amendment excessive force claims against Wellenstein; (3) Eighth Amendment
claims against Digert and Tourtelot; (4) Eighth Amendment conditions of confinement claims;
(5) First Amendment freedom of religion claims; (6) claims based upon the destruction or
deprivation of property; (7) FOIL claims; (8) retaliation claims related to the package room
officer, urine test, cell search, and keeplock confinement; (9) retaliation claims against Digert,
Carpenter and Goppert; and (10) supervisory claims against Carpenter and Goppert; it is
further
ORDERED that Digert, Tourtelot, Goppert and Carpenter are DISMISSED as
defendants in this action; and it is further
ORDERED that the Clerk shall issue summonses for remaining defendants and
forward it, along with copies of the amended complaint, to the United States Marshal for
service upon the remaining defendants. The Clerk shall forward a copy of the summonses
32
and amended complaint to the Office of the New York Attorney General, together with a copy
of this Decision and Order; and it is further
ORDERED that a response to the complaint be filed by defendants, or their counsel,
as provided for in the Federal Rules of Civil Procedure; and it is further
ORDERED that all pleadings, motions and other documents relating to this action
must bear the case number assigned to this action and be filed with the Clerk of the United
States District Court, Northern District of New York, 7th Floor, Federal Building, 100 S.
Clinton St., Syracuse, New York 13261-7367. Any paper sent by a party to the Court or
the Clerk must be accompanied by a certificate showing that a true and correct copy
of same was served on all opposing parties or their counsel. Any document received
by the Clerk or the Court which does not include a proper certificate of service will be
stricken from the docket. Plaintiff must comply with any requests by the Clerk’s Office for
any documents that are necessary to maintain this action. All parties must comply with Local
Rule 7.1 of the Northern District of New York in filing motions. Plaintiff is also required to
promptly notify the Clerk’s Office and all parties or their counsel, in w riting, of any
change in his address; their failure to do so will result in the dismissal of his action;
and it is further
ORDERED that the Clerk of the Court shall serve a copy of this Decision and Order on
plaintiff in accordance with the Local Rules.
April 4, 2016
Albany, New York
33
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?