Hayes v. Dahkle et al

Filing 37

DECISION & ORDER: The Court ACCEPTS AND ADOPTS Magistrate Judge Hummel's October 27, 2017 33 Report-Recommendation and Order IN PART, and MODIFIES IT IN PART in accordance with this decision. Accordingly, defendants' partial motion to dismiss (Dkt. No. 26 ) is GRANTED: (1) insofar as it seeks dismissal of plaintiff's claims against C.O. Dahkle, C.O. Hoffman, and C.O. Meier for verbal harassment and/or threats, (2) insofar as it seeks dismissal of plaintiff's supervisor y liability claims against Supt. Martuscello for C.O. Dahkle's verbal harassment and/or threats. and (3) insofar as it seeks dismissal of plaintiff's First Amendment retaliation claims against C.O. Langtry, C.O. Bence, and C.O. Coon. Thes e claims are DISMISSED WITH PREJUDICE. Further, Defendants' partial motion to dismiss (Dkt. No. 26 ) is DENIED: (1) Insofar as it seeks dismissal of plaintiff's Eighth Amendment claim against C.O. Dahkle for sexual assault, (2) Inso far as it seeks dismissal of plaintiff's claims against Supt. Martuscello for verbal harassment and/or threats, (3) Insofar as it seeks dismissal of plaintiff's First Amendment claims against C.O. Meier and C.O. Hoffman for retaliation, and (4) Insofar as it seeks dismissal of plaintiff's supervisory liability claims against Supt. Martuscello and DSS Shanley for C.O. Meier's retaliation. Signed by Senior Judge Thomas J. McAvoy on 1/19/18. (served on plaintiff by regular mail)(alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
TAHEEN HAYES,
Plaintiff,
v.

9:16-CV-1368

T. DAHKLE, et al.,
Defendants.
________________________________________
THOMAS J. McAVOY,
Senior United States District Judge

DECISION & ORDER
I.

INTRODUCTION
This pro se action brought pursuant to 42 U.S.C. § 1983 was referred to the Hon.

Christian F. Hummel, United States Magistrate Judge, for a Report and Recommendation
pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c).
In his October 27, 2017 Report-Recommendation and Order [Dkt. No. 33], Magistrate
Judge Hummel recommends that defendants’ partial motion to dismiss [Dkt. No. 26] be
granted “[i]nsofar as it seeks dismissal of plaintiff’s claims against C.O. Dahkle, C.O.
Hoffman, and C.O. Meier for verbal harassment and/or threats,” and that these claims be
dismissed with prejudice. Dkt. No. 33, p. 36. Magistrate Judge Hummel also recommends
that defendants’ partial motion be denied:
(1) Insofar as it seeks dismissal of plaintiff’s Eighth Amendment claim against
C.O. Dahkle for sexual assault,

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(2) Insofar as it seeks dismissal of plaintiff’s claims against Supt. Martuscello
for verbal harassment and/or threats,
(3) Insofar as it seeks dismissal of plaintiff’s First Amendment claims against
C.O. Meier and C.O. Hoffman for retaliation,
(4) Insofar as it seeks dismissal of plaintiff’s supervisory liability claims against Supt.
Martuscello for C.O. Dahkle’s verbal harassment and/or threats, [and]
(5)1 Insofar as it seeks dismissal of plaintiff’s supervisory liability claims
against Supt. Martuscello and DSS Shanley for C.O. Meier’s retaliation.
Id., pp. 36-37.
Defendants object to that portion of the Report-Recommendation and Order denying
their motion “insofar as it seeks dismissal of plaintiff’s supervisory liability claims against
Supt. Martuscello for C.O. Dahkle’s verbal harassment and/or threats.” Obj., Dkt. No.
36)(quoting Dkt. No. 33, at p. 36).
II.

STANDARD OF REVIEW
When objections to a magistrate judge’s report and recommendation are lodged, the

district court makes a “de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1);
see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997) (The Court must
make a de novo determination to the extent that a party makes specific objections to a
magistrate judge’s findings.). After reviewing the report and recommendation, the Court
may “accept, reject, or modify, in whole or in part, the findings or recommendations made
by the magistrate judge. The judge may also receive further evidence or recommit the
matter to the magistrate judge with instructions.” 28 U.S.C. § 636(b).

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This sub-paragraph was enumerated as “(4)” in the Report-Recommendation and Order.

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III.

DISCUSSION
a. Defendants’ Objection
As Magistrate Judge Hummel correctly points out, “[a]bsent a subordinate’s

underlying constitutional violation, there can be no supervisory liability.” Dkt. No. 33, at p. 30
(citing Hernandez v. Keane, 341 F.3d 137, 145 (2d Cir. 2003); Elek v. Inc. Vill. of Monroe,
815 F. Supp. 2d 801, 808 (S.D.N.Y. 2011)). The Court accepts and adopts Magistrate
Judge Hummel’s conclusion that C.O. Dahkle’s statements “constitute vague threats that
lack the specificity and seriousness ‘to deter an inmate from exercising his First Amendment
rights’ as no real threat exists.” Id. p. 19 (quoting Davis v. Goord, 320 F.3d 346, 353 (2d
Cir. 2003)). The Court also agrees with Magistrate Judge Hummel that C.O. Dahkle’s
statements and threats “do not qualify as constitutional violations because ‘harassing
comments and hostile behavior do not constitute adverse actions sufficient to state a
retaliation claim.’” Id. p. 18 (quoting Quezada v. Roy, No. 14 Civ. 4056(CM), 2015 WL
5970355, at *21 (S.D.N.Y. Oct. 13, 2015)); see also Espinal v. Goord, 558 F.3d 119, 128
(2d Cir. 2009)("To prove a First Amendment retaliation claim under Section 1983, a prisoner
must show that '(1) that the speech or conduct at issue was protected, (2) 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.'")(quoting Gill v.
Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004), overruled on other grounds by Swierkiewicz
v. Sorema, N. A., 534 U.S. 506, 560 (2002)). Because the underlying claims against C.O.
Dahkle for verbal harassment and/or threats will be dismissed, plaintiff cannot sustain
supervisory liability claims against Supt. Martuscello for C.O. Dahkle’s verbal harassment

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and/or threats. Thus, Defendants’ objection is sustained.
b.

First Amendment Retaliation Claims Against C.O. Langtry,
C.O. Bence, and C.O. Coon

As indicated in the Report-Recommendation and Order, plaintiff concedes that he
fails to allege legally viable First Amendment retaliation claims against defendants C.O.
Langtry, C.O. Bence, and C.O. Coon. Dkt. No. 33, at 23 (citing Dkt. No. 30 at 20). Thus,
Magistrate Judge Hummel recommends in the Discussion section that “plaintiff’s retaliation
claims against C.O. Langtry, C.O. Bence, and C.O. Coon be dismissed as plaintiff fails to
provide any factual allegations to support a claim that these defendants violated his First
Amendment rights.” Id. at 25-26. This recommendation, however, does not appear in the
Conclusion section of the Report Recommendation and Order.
Because plaintiff has already been given an opportunity to amend his complaint, and
because he does not assert that there are any addition facts that would support legally
plausible First Amendment retaliation claims against defendants C.O. Langtry, C.O. Bence,
and C.O. Coon, these claims will be dismissed without leave to re-plead.
IV.

CONCLUSION
For the reasons discussed above, the Court ACCEPTS AND ADOPTS Magistrate

Judge Hummel’s October 27, 2017 Report-Recommendation and Order IN PART, and
MODIFIES IT IN PART in accordance with this decision.
Accordingly, defendants’ partial motion to dismiss [Dkt. No. 26] is GRANTED:
(1) insofar as it seeks dismissal of plaintiff’s claims against C.O. Dahkle, C.O.
Hoffman, and C.O. Meier for verbal harassment and/or threats,
(2) insofar as it seeks dismissal of plaintiff’s supervisory liability claims against Supt.
Martuscello for C.O. Dahkle’s verbal harassment and/or threats.
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and
(3) insofar as it seeks dismissal of plaintiff’s First Amendment retaliation claims
against C.O. Langtry, C.O. Bence, and C.O. Coon.
These claims are DISMISSED WITH PREJUDICE.
Further, Defendants’ partial motion to dismiss [Dkt. No. 26] is DENIED:
(1) Insofar as it seeks dismissal of plaintiff’s Eighth Amendment claim against
C.O. Dahkle for sexual assault,
(2) Insofar as it seeks dismissal of plaintiff’s claims against Supt. Martuscello
for verbal harassment and/or threats,
(3) Insofar as it seeks dismissal of plaintiff’s First Amendment claims against
C.O. Meier and C.O. Hoffman for retaliation,
and
(4) Insofar as it seeks dismissal of plaintiff’s supervisory liability claims against
Supt. Martuscello and DSS Shanley for C.O. Meier’s retaliation.
IT IS SO ORDERED.
Dated: January 19, 2018

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