Ramos v. New York State et al

Filing 13

DECISION AND ORDER: ORDERED that the amended complaint (Dkt. No. 12 ) is ACCEPTED for filing and is the operative pleading in this action. ORDERED that the Clerk shall (i) terminate New York State, Andrew Cuomo, Anthony Annucci, and Supt. &quo t;Doe" as defendants; and (ii) revise the docket to add Sgt. "John Doe," Lt. "John Roe," and the unnamed Area Supervisors and Watch Commanders as defendants. ORDERED that plaintiff's Eighth and Fourteenth Amendment cla ims arising out of his confinement in a "dry cell" for twenty-six days SURVIVE initial review and require a response from the Area Supervisors and Watch Commanders. ORDERED that plaintiff's remaining claims are DISMISSED without prej udice in accordance with 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1) for failure to state a claim upon which relief may be granted. ORDERED that the Clerk shall terminate C.O. Rose, Sgt. "John Doe," and Lt. "J ohn Roe" as defendants. ORDERED that to the extent possible, the New York State Attorney General's Office is requested to produce the information specified above regarding the unidentified Area Supervisors and Watch Commanders within thir ty (30) days of the filing date of this Decision and Order; upon receipt of this information, the Clerk of the Court shall return the file to the Court for further review. Signed by Judge Brenda K. Sannes on 11/30/17. (Attachments: # 1 Unpublished Decision Cited) (served on plaintiff by regular mail; served on NYS AG's Office with dkt. no. 12 by regular mail)(alh, )

Joseph v. Conway, 567 Fed.Appx. 56 (2014)

Vacated and remanded.
567 Fed.Appx. 56
This case was not selected for
publication in the Federal Reporter.
Not for Publication in West's Federal Reporter.
RULINGS BY SUMMARY ORDER DO NOT HAVE
PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY
1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT'S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE(WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING
A SUMMARY ORDER MUST SERVE A COPY OF IT
ON ANY PARTY NOT REPRESENTED BY COUNSEL.
United States Court of Appeals,
Second Circuit.
Roy JOSEPH, Petitioner–Appellant,
v.
James CONWAY, Superintendent,
Respondent–Appellee.
No. 13–1154.
|
May 27, 2014.
Synopsis
Background: After affirmance, 20 A.D.3d 435, 797
N.Y.S.2d 310, of his state conviction and sentence for
murder in second degree, attempted murder in second
degree, and criminal possession of weapon in second
degree, and 45 A.D.3d 865, 845 N.Y.S.2d 754, denial of
his application for writ of error coram nobis, petitioner
sought federal habeas relief. The United States District
Court for the Eastern District of New York, Mauskopf,
J., 2013 WL 632118, dismissed petition as time barred and
subsequently granted certificate of appealability.

Holding: The Court of Appeals held that further
factfinding was required to determine petitioner's
eligibility for statutory or equitable tolling of limitations
period.

West Headnotes (1)
[1]

Habeas Corpus
Particular issues and problems
District court's dismissal of habeas petition
as time barred, under Antiterrorism and
Effective Death Penalty Act (AEDPA), would
be remanded for additional factfinding to
determine whether petitioner was eligible for
statutory or equitable tolling of limitations
period based on his attempt to file writ of error
coram nobis petition for which he invoked
prison mailbox rule, providing that pro se
prisoner's notice of appeal was filed upon
delivery to prison authorities for forwarding
to district court. 28 U.S.C.A. § 2244(d)(2).
5 Cases that cite this headnote

*57 Appeal from the United States District Court for the
Eastern District of New York (Mauskopf, J.).
UPON DUE CONSIDERATION, IT IS ORDERED,
ADJUDGED, AND DECREED that the judgment
of the district court is VACATED and the case is
REMANDED.
Attorneys and Law Firms
Georgia J. Hinde, New York, NY, for Petitioner–
Appellant.
Diane R. Eisner, Assistant District Attorney (Leonard
Joblove, Amy M. Applebaum, Assistant District
Attorneys, on the brief), for Kenneth P. Thompson,
District Attorney, Kings County, Brooklyn, NY, for
Respondent–Appellee.
PRESENT: ROSEMARY S. POOLER,
RAGGI, DENNY CHIN, Circuit Judges.

REENA

SUMMARY ORDER

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

1

Joseph v. Conway, 567 Fed.Appx. 56 (2014)

Petitioner-appellant Roy Joseph appeals the district
court's judgment dated February 20, 2013, dismissing
his petition for a writ of habeas corpus filed pursuant
to 28 U.S.C. § 2254. By memorandum decision entered
February 20, 2013, the district court dismissed the petition
as time-barred, concluding that Joseph was not entitled to
either statutory or equitable tolling of the one-year statute
of limitations set forth in 28 U.S.C. § 2244(d)(1).
Joseph seeks relief from a 2002 New York State
conviction, following a jury trial, for murder in the
second degree, attempted murder in the second degree,
and criminal possession of a weapon in the second
degree. He is serving a sentence of consecutive terms of
imprisonment of twenty years to life on the murder and
attempted murder counts and a concurrent term of ten
years' imprisonment on the weapon count.
This Court granted a certificate of appealability, see
28 U.S.C. § 2253(c), limited solely to whether Joseph's
attempt to file a coram nobis petition in 2006 sufficed to
toll the limitations period and render his § 2254 petition
timely. We assume the parties' familiarity with the facts
and record of the prior proceedings.

1. Applicable Law
The timeliness of a habeas petition presents a question
of law that we review de *58 novo. See Pratt v. Greiner,
306 F.3d 1190, 1195 (2d Cir.2002) (citing Smaldone v.
Senkowski, 273 F.3d 133, 136 (2d Cir.2001)). Where
the district court makes factual findings relevant to an
assessment of timeliness under a provision of 28 U.S.C.
§ 2244(d), we review those findings for clear error, see
Hemstreet v. Greiner, 491 F.3d 84, 89 (2d Cir.2007),
but ultimately review de novo the legal determination of
whether on those facts the petition was timely filed, see
Fernandez v. Artuz, 402 F.3d 111, 112 (2d Cir.2005).
The tolling provision of the Antiterrorism and Effective
Death Penalty Act (“AEDPA”) provides:
The time during which a properly
filed application for State postconviction or other collateral review
with respect to the pertinent
judgment or claim is pending shall
not be counted toward any period of
limitation under this subsection.

28 U.S.C. § 2244(d)(2). Under § 2244(d)(2), therefore, a
petition is statutorily tolled from the time it is “properly
filed” and while it is “pending.” Id.
The limitations period in § 2244(d) may also be “subject
to equitable tolling in appropriate cases”—specifically,
where the petitioner shows “(1) that he has been pursuing
his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely
filing.” Holland v. Florida, 560 U.S. 631, 645, 649, 130
S.Ct. 2549, 177 L.Ed.2d 130 (2010) (internal quotation
marks omitted); see also Doe v. Menefee, 391 F.3d 147,
159 (2d Cir.2004) (“To qualify for [equitable tolling], the
petitioner must establish that extraordinary circumstances
prevented him from filing his petition on time, and that he
acted with reasonable diligence throughout the period he
seeks to toll.” (internal quotation marks omitted)).
Under the “prison mailbox rule,” a pro se prisoner's notice
of appeal is filed when he delivers it to prison authorities
for forwarding to the district court. See Houston v. Lack,
487 U.S. 266, 270–72, 108 S.Ct. 2379, 101 L.Ed.2d 245
(1988). We have extended the prison mailbox rule to
apply to prisoners' filings of coram nobis petitions. See
Fernandez, 402 F.3d at 111–13, 116 (deeming coram nobis
petition timely where it was placed in prison mailbox two
days before statutory deadline, but not received until ten
days after; delay was caused by the “prison's mistaken
belief that Fernandez's prison account had insufficient
funds to cover postage”).

2. Application
In the district court, Joseph filed an affirmation and an
affidavit, accompanied by certain documentary evidence.
He stated that during the week of August 24, 2006, a
“legal research clerk assigned to assist [him] filed his
writ of error coram nobis with the Appellate Division,
Second Department.” (App. 47). Joseph was incarcerated
at Attica Correctional Facility at the time, and he (or his
legal research clerk) apparently filed his papers by handing
them to a prison official. In June 2007, Joseph wrote
the Clerk of the Court of the Appellate Division, Second
Department, to inquire as to the “motion of Writ of Error
Coram Nobis” he had “submitted” on August 24, 2006.
(App. 49). The Second Department responded on June 19,
2007, advising that the court had not received his motion.
By letter dated August 10, 2007, Joseph wrote the Inmate
Correspondence Office at Attica asking for information

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

2

Joseph v. Conway, 567 Fed.Appx. 56 (2014)

about “legal papers” he had sent to the “Kings County
Supreme Court” in August 2006. (App. 51). Someone in
the Correspondence Office wrote back, confirming that
“one free legal envelope” went out for Joseph during the
week of August *59 21, 2006, but that no record was
made of to whom the envelope was sent. (Id.).
Joseph then sent a new set of coram nobis papers to the
Appellate Division on August 21, 2007. The Appellate
Division denied the petition on November 27, 2007.
Joseph acknowledges that his habeas petition would be
time-barred unless the limitations period is statutorily or
equitably tolled. 1 On appeal, he argues that pursuant to
the prison mailbox rule, he filed the coram nobis petition
with the state court in August 2006—when he contends
he submitted the papers to the prison authorities—and
the petition remained pending until the Appellate Division
denied it on November 27, 2007. Because the state court
never received the petition, however, the district court
declined to apply the prison mailbox rule, stating it did
“not believe based on the record before it that a coram
nobis application was properly filed with the Appellate
Division.” Joseph v. Conway, No. 07–CV–05223 (RM),
2013 WL 632118 at *5 (E.D.N.Y. Feb. 20, 2013).
1

As Joseph's conviction became final for the purposes
of AEDPA on November 28, 2005, he had until
November 28, 2006 to seek habeas relief, unless he
had (1) a pending state application for collateral
review or (2) grounds for equitable tolling. See 28
U.S.C. § 2244(d).

We remand to the district court for amplification of
the record. As noted in the certificate of appealability,
“[w]hat constitutes sufficient evidence of a properly filed
petition in compliance with the applicable law and rules
governing filing” is unsettled in this Circuit. (App. 69).
Indeed, the question whether the prison mailbox rule is
available when the state court never receives an alleged
filing is unanswered in this Circuit, and other circuits
have reached different results. Compare Ray v. Clements,
700 F.3d 993, 1008 (7th Cir.2012) (setting forth burdenshifting standard, in which petitioner must make prima
facie showing of delivery before burden shifts to state to
disprove delivery), and Allen v. Culliver, 471 F.3d 1196,
1198 (11th Cir.2006) (per curiam) (same), and Caldwell
v. Amend, 30 F.3d 1199, 1202–03 (9th Cir.1994) (same),
with Grady v. United States, 269 F.3d 913, 916–17 (8th
Cir.2001) (placing “ultimate burden” on petitioner to

show he should “benefit from the [prison mailbox] rule”).
We decline to answer this question on the record before us,
however, because of the factual uncertainties. See Grimo
v. Blue Cross/Blue Shield of Vt., 34 F.3d 148, 152–53
(2d Cir.1994) (remand is proper where factual record is
“unclear”). Moreover, depending on the answers to the
factual questions, it may be that the statutory tolling
question need not be reached.
First, the record contains conflicting evidence as to
whether Joseph sent his coram nobis petition to the
Appellate Division or to the Supreme Court, Kings
County. The district court resolved the conflict against
Joseph, even though he submitted some evidence that he
did send the papers to the Appellate Division. Second,
although the Inmate Correspondence Office reported
using one free legal envelope for Joseph during the period
he purportedly mailed his petition, the record is unclear
as to what was sent and where it was sent. Indeed,
as the state conceded at oral argument, no effort was
undertaken to locate whatever prison mail logs exist.
Third, Joseph states in his affidavit that “the legal research
clerk assigned to assist [him] filed his writ of error coram
nobis petition.” (App. 47). It is unclear who this “legal
research clerk” was, and we cannot discern whether he or
she qualifies as a “prison authority” within the meaning
of the prison mailbox rule. See *60 Knickerbocker v.
Artuz, 271 F.3d 35, 37 (2d Cir.2001) (suggesting that the
prison mailbox rule is unavailable where the “delay ... is
not attributable to prison officials”). Finally, the record
is unclear whether Joseph has a copy of the coram nobis
petition he allegedly filed in 2006. Counsel argues that
a document apparently dated August 21, 2007 is the
document that Joseph submitted in 2006, with the “6”
in 2006 altered to a “7.” But this is just speculation,
and further inquiry should be made. The district court
essentially concluded that because Joseph did not submit
a copy, he must not have actually submitted the original
in 2006. Again, the district court drew an inference against
Joseph.
The State argues that the district court's order to show
cause of January 10, 2008 gave Joseph the opportunity
to make a case for statutory or equitable tolling, but
Joseph failed to do so. Joseph clearly attempted to
make his case, however, as he filed an affirmation, an
affidavit, and supporting documentation. But some of
the information he needed was not in his possession,
such as the mail log or other records from the Inmate

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

3

Joseph v. Conway, 567 Fed.Appx. 56 (2014)

Correspondence Office, and some of Joseph's statements
were not as clear as they could have been. Because
he is incarcerated, Joseph is not in a position to carry
out his own investigation to substantiate his allegations.
As Joseph's pro se status entitled him to “special
solicitude” and “liberal” construction of his submissions,
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474–
75 (2d Cir.2006) (internal quotation marks omitted) (per
curiam), 2 the district court should have inquired further.
Accord Valentin v. Dinkins, 121 F.3d 72, 75–76 (2d
Cir.1997) (holding that district courts must assist pro se
incarcerated litigants with their inquiry into the identities
of unknown defendants); Traguth v. Zuck, 710 F.2d 90,
95 (2d Cir.1983) (noting the “obligation on the part of
the court to make reasonable allowances to protect pro
se litigants from inadvertent forfeiture of important rights
because of their lack of legal training”).
2

‘to raise the strongest arguments that they suggest.’ ”
Triestman, 470 F.3d at 474 (quoting Pabon v. Wright,
459 F.3d 241, 248 (2d Cir.2006)).

We remand to the district court for additional factfinding and to decide, on the basis of a more complete
factual record, whether Joseph is eligible for statutory
or equitable tolling. If the facts do not support Joseph's
contention that he attempted to file a coram nobis petition
in August 2006, the question posed by the certificate of
appealability may not need to be reached. If the facts
do demonstrate that Joseph “properly filed” his petition,
then the district court shall decide whether the statute of
limitations was tolled.
For the foregoing reasons, we VACATE the judgment of
the district court and REMAND for further proceedings.

All Citations
“It is well established that the submissions of a pro
se litigant must be construed liberally and interpreted

End of Document

567 Fed.Appx. 56
© 2017 Thomson Reuters. No claim to original U.S. Government Works.

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

4

Bejjani v. Manhattan Sheraton Corp., 567 Fed.Appx. 60 (2014)

567 Fed.Appx. 60
This case was not selected for
publication in the Federal Reporter.
Not for Publication in West's Federal Reporter.
RULINGS BY SUMMARY ORDER DO NOT HAVE
PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY
1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT'S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE(WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING
A SUMMARY ORDER MUST SERVE A COPY OF IT
ON ANY PARTY NOT REPRESENTED BY COUNSEL.
United States Court of Appeals,
Second Circuit.

[1] legal and non-arbitrary actions taken by union by
entering into concealed agreement were not retaliatory,
and thus, were not in breach of duty of fair representation;
[2] union had no duty to disclose to union workers
agreement in negotiations to settle prior lawsuit against
union in which union workers were represented by
counsel; and
[3] six-week delay between workers' prior lawsuit against
union and concealed agreement in settlement of lawsuit
did not state claim for bad faith or conspiracy to retaliate.

Affirmed.

West Headnotes (3)
[1]

Joseph BEJJANI, Henry Bolejszo, Alain Breda,
Ahmad Bulla, Geoffrey Haberer, Ruhel Hassan,
Ricky Garcia, Abdelkabir Kahtane, Mohammed
Khanfri, Kathy Krinke, Stylianos Loukissas, Erich
Lunzer, Jario Martinez, Edilberto Morcos, Aart
Van Derlaan, Oscar Flores, Plaintiffs–Appellants,
John O'Connor, Plaintiff,
v.
MANHATTAN SHERATON CORPORATION,
dba St. Regis Hotel, New York Hotel and Motel
Trades Council, AFL–CIO, Defendants–Appellees.
No. 13–2860–cv.
|
May 27, 2014.

Legal and non-arbitrary actions taken by
hotel workers' union by entering into
concealed agreement that benefited certain
union members were not retaliatory, and
thus, were not in breach of duty of fair
representation, simply because the agreement
did not benefit hotel banquet workers, absent
showing that union's actions were irrational,
dishonest, or unrelated to union objectives.
3 Cases that cite this headnote
[2]

Synopsis
Background: Hotel union workers filed suit against union
for breach of duty of fair representation. The United
States District Court for the Southern District of New
York, J. Paul Oetken, J., dismissed complaint for failure
to state claim, 2013 WL 3237845, and workers appealed.

Holdings: The Court of Appeals held that:

Labor and Employment
Duty to Act Impartially and Without
Discrimination; Fair Representation

Labor and Employment
Duty to Act Impartially and Without
Discrimination; Fair Representation
Union had no duty to disclose to union
workers agreement in negotiations to settle
prior lawsuit against union in which union
workers were represented by counsel.
1 Cases that cite this headnote

[3]

Conspiracy
Conspiracy to injure in property or
business

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

1

Bejjani v. Manhattan Sheraton Corp., 567 Fed.Appx. 60 (2014)

Labor and Employment
Duty to Act Impartially and Without
Discrimination; Fair Representation
Six-week delay between union workers'
lawsuit against union for breach of duty of
fair representation and concealed agreement
in settlement of lawsuit did not state claim
for bad faith or conspiracy to retaliate against
union workers.
7 Cases that cite this headnote

*61 Appeal from a judgment of the United States District
Court for the Southern District of New York (J. Paul
Oetken, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY
ORDERED, ADJUDGED, AND DECREED that the
judgment entered on June 28, 2013, is AFFIRMED.
Attorneys and Law Firms
Robert N. Felix, Esq., New York, NY, for Appellants.
Michael Starr (Katherine Healy Marques, on the brief),
Holland & Knight, LLP, New York, NY, for Appellee
Manhattan Sheraton Corp., dba St. Regis Hotel.
Barry Neal Saltzman (Vincent F. Pitta, Danya Ahmed,
on the brief), Pitta & Giblin LLP, New York, NY,
for Appellee New *62 York Hotel and Motel Trades
Council, AFL–CIO.
PRESENT: ROBERT D. SACK, REENA RAGGI,
DENNY CHIN, Circuit Judges.

SUMMARY ORDER
Plaintiffs are banquet servers employed by defendant
Manhattan Sheraton Corporation, doing business as St.
Regis Hotel (the “Hotel”), and represented by defendant
New York Hotel and Motel Trades Council, AFL–
CIO (the “Union”). Plaintiffs appeal from the dismissal
of their claims that the Hotel violated terms of the
operative collective bargaining agreement and that the
Union violated its duty of fair representation. We review
de novo the dismissal of a complaint under Fed.R.Civ.P.
12(b)(6), see Vaughn v. Air Line Pilots Ass'n, Int'l, 604 F.3d
703, 709 (2d Cir.2010), accepting all factual allegations

as true and drawing all reasonable inferences in favor of
the plaintiffs, see Askins v. Doe No. 1, 727 F.3d 248, 252–
53 (2d Cir.2013). We assume the parties' familiarity with
the facts and the record of underlying proceedings, which
we reference only as necessary to explain our decision to
affirm.

1. Legal Standard for Hybrid “ § 301/Fair
Representation” Claims
To pursue this “ § 301/Fair Representation” claim,
plaintiffs were required plausibly to allege both (1) the
employer's breach of a collective bargaining agreement
and (2) the union's breach of “its duty of fair
representation vis-a-vis the union members.” White v.
White Rose Food, Div. of DiGiorgio Corp., 237 F.3d 174,
178 (2d Cir.2001). The latter breach cannot be supported
only by allegations of negligence. See Barr v. United
Parcel Serv., Inc., 868 F.2d 36, 43 (2d Cir.1989). Rather,
plaintiffs must plausibly allege union actions “are wholly
arbitrary, discriminatory, or in bad faith.” Spellacy v.
Airline Pilots Ass'n–Int'l, 156 F.3d 120, 126 (2d Cir.1998)
(internal quotation marks and alteration omitted). To
be “arbitrary,” the alleged actions, considered “in light
of the factual and legal landscape at the time of the
union's actions,” must fall “so far outside a wide range
of reasonableness as to be irrational.” Vaughn v. Air Line
Pilots Ass'n, Int'l, 604 F.3d at 709. To be “discriminatory,”
the allegations must plausibly allege disparate treatment
“that was intentional, severe, and unrelated to legitimate
union objectives.” Id. (internal quotation marks omitted).
Finally, “bad faith” requires allegations that the union
engaged in “fraud, dishonesty, [or] other intentionally
misleading conduct” with “an improper intent, purpose or
motive.” Id. at 709–10 (internal quotation marks omitted).
Our review of a claimed breach of the duty of fair
representation is “highly deferential, recognizing the wide
latitude that [unions] need for the effective performance of
their bargaining responsibilities.” Air Line Pilots Ass'n v.
O'Neill, 499 U.S. 65, 78, 111 S.Ct. 1127, 113 L.Ed.2d 51
(1991); accord Vaughn v. Air Line Pilots Ass'n, Int'l, 604
F.3d at 709. Thus, to plead breach, plaintiffs must further
plausibly allege a “causal connection between the union's
wrongful conduct and their injuries.” Spellacy v. Airline
Pilots Ass'n–Int'l, 156 F.3d at 126; accord Vaughn v. Air
Line Pilots Ass'n, Int'l, 604 F.3d at 709.

2. Application

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

2

Bejjani v. Manhattan Sheraton Corp., 567 Fed.Appx. 60 (2014)

[1] On independent review of the record and relevant case
law, we conclude that plaintiffs failed to plead a plausible
claim of union breach essentially for the reasons stated
by the district court in its thorough and well-reasoned
Memorandum Opinion and Order granting dismissal of
*63 the hybrid action. On appeal, plaintiffs argue that the
district court failed to consider the context and history of
the parties' relationship and, therefore, failed to recognize
that the complaint plausibly alleged that the Union
had endeavored to retaliate against them by entering
into a concealed agreement (the “Adour Agreement”)
benefitting Union members who are not banquet servers
at the expense of banquet servers. The record does not
support this argument. 1
1

Plaintiffs argued below that the Union breached its
duty of fair representation by failing to arbitrate
the Hotel's alleged practice of shifting work to nonbanquet servers. Plaintiffs concede that the Union has
since sought arbitration on this issue and, instead,
argue that the Union cannot be trusted to address
their grievances in the arbitration. This new argument
effectively asserts that other alleged breaches of
the duty of fair representation preclude effective
arbitration and allow them to maintain a hybrid
action in court against both the Union and the Hotel.
Because we conclude that plaintiffs have not plausibly
alleged a breach of the duty of fair representation, the
argument is without merit.

[2] The complaint alleges nothing more than legal and
non-arbitrary Union actions that plaintiffs conclusorily
construe as retaliatory because they do not benefit
banquet servers. Even assuming the Adour Agreement
operated to the disadvantage of banquet servers, it
was hardly irrational, dishonest, or unrelated to Union
objectives for the Union to enter into such an agreement,
given its benefits for other Union members. See Spellacy
v. Airline Pilots Ass'n–Int'l, 156 F.3d at 129 (“A union's
reasoned decision to support the interests of one group
of employees over the competing interests of another
group does not constitute arbitrary conduct.”); see also
Vaughn v. Air Line Pilots Ass'n, Int'l, 604 F.3d at 712
(stating that “there is no requirement that unions treat
their members identically as long as their actions are
related to legitimate union objectives” and “[t]he complete
satisfaction of all who are represented is hardly to be
expected” (internal quotation marks omitted)). Nor does
the Union's failure to disclose the Adour Agreement
plausibly state a claim of breach. Although the Union

represents plaintiffs in negotiations and disputes with
the Hotel, it was under no duty to disclose the Adour
Agreement in negotiations to settle a prior lawsuit in
which plaintiffs were represented by counsel, not the
Union, as the Union was adverse to plaintiffs. See White
v. White Rose Food, Div. of DiGiorgio Corp., 237 F.3d
at 179 n. 3 (stating that duty of fair representation
arises from exclusive representational status); see also
Freeman v. Local Union No. 135, 746 F.2d 1316, 1321
(7th Cir.1984) (“If a union does not serve as the exclusive
agent for the members of the bargaining unit with respect
to a particular matter, there is no corresponding duty
of fair representation.”). Moreover, not alerting plaintiffs
to the Adour Agreement when they complained about
the Hotel shifting work to non-banquet servers does not
create an inference of bad faith because plaintiffs do
not plausibly allege that the Adour Agreement violated
any “unambiguous contractual entitlement[s],” Spellacy v.
Airline Pilots Ass'n–Int'l, 156 F.3d at 129, and plaintiffs
do not allege any “intentionally misleading conduct” with
regard to plaintiffs' rights, id. at 126. Indeed, plaintiffs
have cited no authority holding that the duty of fair
representation requires disclosure of all agreements that
may in some way affect certain union members. Cf. White
v. White Rose Food, a Div. of DiGiorgio Corp., 237 F.3d
at 183 (“[T]he mere failure to provide notice and an
opportunity to be heard regarding [an agreement], without
more, does not amount to bad faith.”).
*64 [3] Plaintiffs argue that the timing of the Adour
Agreement in relation to plaintiffs' first lawsuit allows
a plausible inference of collusive Union and Hotel
retaliation against them. We disagree. The six-week
delay between plaintiffs' first suit against the Union
and the Ardour Agreement, by itself, fails to raise a
plausible inference of bad faith or conspiracy to retaliate,
leaving nothing but plaintiffs' conclusory allegations. See
Anderson News, LLC v. Am. Media, Inc., 680 F.3d 162, 182
(2d Cir.2012) ( “Conclusory allegations of ‘participation’
in a ‘conspiracy’ have long been held insufficient to state
a claim.”). Moreover, the specific misstatements at issue,
see, e.g., J.A. 19–23 (alleging that Union misrepresented
that it sent requests for information to the Hotel); id.
at 22–23 (alleging “[c]ertain previous meeting dates were
claimed to have contained facts that belonged to other
meeting dates”), are minor discrepancies that do not
indicate intentional misrepresentation and, when viewed
in totality, instead support at most an inference of
negligence, not bad faith or a conspiracy to retaliate. See

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

3

Bejjani v. Manhattan Sheraton Corp., 567 Fed.Appx. 60 (2014)

Vaughn v. Air Line Pilots Ass'n, Int'l, 604 F.3d at 710; see
also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007) (requiring allegations
to “nudge[ ] ... claims across the line from conceivable to
plausible” in order to survive motion to dismiss).
Accordingly, we affirm substantially for the reasons stated
by the district court in its Memorandum Opinion and
Order of Dismissal.
End of Document

We have considered the remainder of plaintiffs' claims and
consider them to be without merit. The order of the district
court is AFFIRMED.

All Citations
567 Fed.Appx. 60

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

4

Murray v. Pataki, 378 Fed.Appx. 50 (2010)

KeyCite Yellow Flag - Negative Treatment
Distinguished by Johnson v. Brown, N.D.N.Y., September 3, 2010

378 Fed.Appx. 50
This case was not selected for
publication in West's Federal Reporter.
United States Court of Appeals,
Second Circuit.
Joel MURRAY, Plaintiff–Appellant,
v.
George E. PATAKI, Governor of New York
State, Kang Yeon Lee, M.D., Daniel Senkowski,
Superintendent of Clinton Correctional Facility,
Dr. Melendez, R. Leduc, Corrections Officer, N.
Irwin, J. Travers, J. Forth, Corrections Officer, R.
Girdich, Superintendent at Franklin Correctional
Facility, Glenn S. Goord, Commissioner of
N.Y.S. D.O.C.S., Richard Roy, Inspector General,
T. Reif, Corrections Officer, CNY Psychiatric
Center, S. Jones, Defendants–Appellees. *
*

The Clerk of the Court is respectfully directed to
amend the official caption as it appears above.

No. 09–1657–pr.
|
May 24, 2010.
Synopsis
Background: Pro se prisoner brought civil rights action
against various government defendants. The United
States District Court for the Northern District of New
York, dismissed certain § 1983 claims, Lawrence E. Kahn,
J., 2007 WL 956941, and granted summary judgment
in favor of defendants on his remaining § 1983 and
§ 1985 claims, and dismissed his claim against prison
employee defendant, Suddaby, J., 2009 WL 981217.
Prisoner appealed.

West Headnotes (1)
[1]

Process
Time for service
Pro se prisoner provided information
sufficient to identify prison employee
defendant, and therefore United States
Marshals'
failure
to
effect
service
automatically constituted “good cause” for an
extension of time in which to serve. Fed.Rules
Civ.Proc.Rule 4(m), 28 U.S.C.A.
24 Cases that cite this headnote

*50 Appeal from a judgment of the United States District
Court for the Northern District of New York (Suddaby,
J., Treece, M.J.).
UPON DUE CONSIDERATION, IT IS HEREBY
ORDERED, ADJUDGED, AND DECREED that the
judgment of the district court is AFFIRMED IN PART
and VACATED AND REMANDED IN PART.
Attorneys and Law Firms
Joel Murray, pro se, Romulus, NY.
Andrew M. Cuomo, Attorney General of the State
of New York; Barbara D. Underwood, Solicitor
General; Benjamin N. Gutman, Deputy Solicitor General
(Sudarsana Srinivasan, Assistant Solicitor General; *51
Kate H. Nepyeu, of Counsel), New York, NY, for
Defendants–Appellees.
PRESENT:
B.D.
PARKER,
DEBRA
ANN
LIVINGSTON, and DENNY CHIN, Circuit Judges.

SUMMARY ORDER
Holding: The Court of Appeals held that United
States Marshals' failure to effect service automatically
constituted “good cause” for extension of time in which to
serve prison employee defendant.

Affirmed in part, and vacated and remanded in part.

**1 Plaintiff–Appellant Joel Murray appeals pro se from
an order of the United States District Court for the
Northern District of New York (Suddaby, J. ), entered
March 29, 2007, 2007 WL 956941, dismissing certain of his
42 U.S.C. § 1983 claims against various of the Defendants–
Appellees, and from a second order, entered on April

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

1

Murray v. Pataki, 378 Fed.Appx. 50 (2010)

9, 2009, 2009 WL 981217, granting summary judgment
in favor of Defendants–Appellees on Murray's remaining
claims under 42 U.S.C. §§ 1983 and 1985, and dismissing
his claim against Defendant–Appellee Dr. Melendez for
failure to timely effect service of process upon her
pursuant to Federal Rule of Civil Procedure 4(m). We
assume the parties' familiarity with the underlying facts
and procedural history of the case, and with the issues
presented on appeal.
We review de novo a district court's dismissal of
claims pursuant to Fed.R.Civ.P. 12(b)(6), “construing the
complaint liberally, accepting all factual allegations in the
complaint as true, and drawing all reasonable inferences
in the plaintiff's favor.” Chambers v. Time Warner, Inc.,
282 F.3d 147, 152 (2d Cir.2002). A complaint must plead
“enough facts to state a claim to relief that is plausible
on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim will
have facial plausibility “when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937,
1949, 173 L.Ed.2d 868 (2009). We also review a district
court's grant of summary judgment de novo, and determine
whether there are no genuine issues of material fact and
the moving party is entitled to judgment as a matter of
law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d
292, 300 (2d Cir.2003). While we construe the evidence
in the light most favorable to the non-moving party,
id., “conclusory statements or mere allegations [are] not
sufficient to defeat a summary judgment motion,” Davis
v. New York, 316 F.3d 93, 100 (2d Cir.2002).
We have undertaken a de novo review of the record and
relevant cases and, except as noted below, we affirm the
dismissal of Murray's claims against all defendants for
substantially the same reasons set forth in Magistrate
Judge Treece's thorough reports and recommendations of
March 5, 2007, and March 3, 2009; these reports were
adopted by the district court in their entirety.
We vacate the district court's dismissal of Murray's claim
against Dr. Melendez for failure to serve process. We
review a district court's dismissal pursuant to Federal Rule
of Civil Procedure 4(m) for abuse of discretion. Zapata
v. City of New York, 502 F.3d 192, 195 (2d Cir.2007). A
district court abuses its discretion if it bases its ruling on
an erroneous view of the law or clearly erroneous findings

of fact, or its decision “cannot be located within the range
of permissible decisions.” Lynch v. City of New York, 589
F.3d 94, 99 (2d Cir.2009) (quoting Sims v. Blot, 534 F.3d
117, 132 (2d Cir.2008)).
**2 Rule 4(m) provides that “[i]f a defendant is not
served within 120 days after the complaint is filed, the
court—on motion or on its own after notice to the plaintiff
—must dismiss the action without prejudice against that
defendant or order that service be made within a specified
time.” Fed.R.Civ.P. 4(m). If the plaintiff shows “good
cause for the failure” to serve, the *52 district court is
required to grant an “appropriate” extension of time in
which to serve. Id. District courts also have discretion to
enlarge the 120–day period even in the absence of good
cause. See Zapata, 502 F.3d at 196. A pro se prisoner
proceeding in forma pauperis, such as Murray, is “entitled
to rely on service by the U.S. Marshals.” Romandette
v. Weetabix Co., 807 F.2d 309, 311 (2d Cir.1986). As
long as the pro se prisoner provides the information
necessary to identify the defendant, the Marshals' failure
to effect service automatically constitutes “good cause”
for an extension of time within the meaning of Rule
4(m). See, e.g., id.; see also Moore v. Jackson, 123 F.3d
1082, 1085–86 (8th Cir.1997); Byrd v. Stone, 94 F.3d
217, 220 (6th Cir.1996); Dumaguin v. Sec'y of Health
& Human Servs., 28 F.3d 1218, 1221 (D.C.Cir.1994);
Sellers v. United States, 902 F.2d 598, 602 (7th Cir.1990);
Puett v. Blandford, 912 F.2d 270, 275 (9th Cir.1990).
A pro se prisoner proceeding in forma pauperis is only
required to provide the information necessary to identify
the defendant, see, e.g., Sellers, 902 F.2d at 602, and it is
“unreasonable to expect incarcerated and unrepresented
prisoner-litigants to provide the current addresses of
prison-guard defendants who no longer work at the
prison,” Richardson v. Johnson, 598 F.3d 734, 739–40
(11th Cir.2010).
Here, albeit after receiving a number of extensions of
time within which to serve Melendez, Murray provided
information that was sufficient to identify Dr. Melendez
by full name and as an employee formerly assigned to
Clinton Correctional Facility. See Doc. 103, Murray v.
Pataki, 9:03–CV–1263 (N.D.N.Y. Apr. 13, 2007) (letter
from Murray to the district court styled “Notification
of Defendant”). This was sufficient to satisfy Murray's
burden to provide sufficient information for the Marshals
to identify the defendant. Although the Marshals
subsequently failed to serve Dr. Melendez at the Clinton

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

2

Murray v. Pataki, 378 Fed.Appx. 50 (2010)

facility on March 11, 2008, id. Doc. 134, they were clearly
able to identify her from the information proffered by
Murray, and service was unsuccessful merely because Dr.
Melendez apparently no longer worked at Clinton. See id.
As Murray had satisfied his burden, it was an abuse of
discretion for the district court to require him to provide
additional information regarding Dr. Melendez, and to
dismiss Murray's claims against her pursuant to Rule
4(m) for failure to serve process upon her. District courts
have a responsibility to assist pro se plaintiffs in their
efforts to serve process on defendants. See Valentin v.
Dinkins, 121 F.3d 72, 75–76 (2d Cir.1997) (recognizing
district court's obligation to allow pro se plaintiff limited
discovery to identify defendant for service of process).
With the information that Murray provided, the district
End of Document

court here could have ordered the other defendants to
contact Dr. Melendez to see if she would accept service or
to provide the Marshals with Dr. Melendez's last known
address.
**3 For the foregoing reasons, the judgment of the
district court dismissing the claims against Dr. Melendez
for failure to serve process is VACATED, and we
REMAND to the district court for further proceedings
in accordance with this decision. The judgment is
AFFIRMED in all other respects.

All Citations
378 Fed.Appx. 50, 2010 WL 2025613
© 2017 Thomson Reuters. No claim to original U.S. Government Works.

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

3

Walker v. Shaw, Not Reported in F.Supp.2d (2010)
2010 WL 2541711

for about two months. As a result, Plaintiff says he was
threatened by another inmate and feared for his life.
KeyCite Yellow Flag - Negative Treatment
Disagreement Recognized by Abreu v. Nicholls, S.D.N.Y., March 22,

2011

2010 WL 2541711
Only the Westlaw citation is currently available.
This decision was reviewed by West editorial
staff and not assigned editorial enhancements.
United States District Court,
S.D. New York.
Michael WALKER, pro se, Plaintiff,
v.
Robert SHAW, Warden, Gang Intelligence
Unit, the City of New York, New York City
Department of Corrections, Department of
Placement and Movements, Defendants.
No. 08 Civ. 10043(CM).
|
June 23, 2010.
Attorneys and Law Firms
Michael Walker, Newark, NJ, pro se.

DECISION AND ORDER GRANTING
DEFENDANTS' MOTION TO DISMISS
McMAHON, District Judge.
*1 Pro se plaintiff Michael Walker (“Plaintiff”) brings
this action pursuant to 42 U.S.C. § 1983 against the City of
New York (the “City”), the New York City Department
of Corrections, the New York City Department of
Placement and Movements, the George R. Vierno Center
Correctional Facility's Gang Intelligence Unit, and the
Warden of the George R. Vierno Center, Robert Shaw
(collectively, “Defendants”). Plaintiff alleges that GRVC
officials deprived him of his right to due process by
classifying him as an “SRG [Security Risk Group] Bloods
gang member” without giving him notice or affording
him an opportunity to be heard. Plaintiff also alleges
that George R. Vierno Center Correctional Facility
(“GRVC”) officials exhibited deliberate indifference to his
well-being and put his life in danger by housing him in
an area occupied by members of the rival “Crips” gang

On November 23, 2009, the City filed a motion to
dismiss under Federal Rule of Civil Procedure 12(b)
(6). For the reasons set forth in more detail below,
Plaintiff's complaint fails to state a claim—he brings this
action against three non-suable entities (the Department
of Corrections, the Department of Placement and
Movements and the Gang Intelligence Unit), has not
adequately pleaded his claim for municipal liability
against the City of New York, and has failed to allege that
Warden Robert Shaw is amenable to suit, since Warden
Shaw does not appear to have been personally involved in
any of the facts giving rise to Plaintiff's claims.
However, Plaintiff has pleaded sufficient facts, which,
if proven, would state a deliberate indifference claim
against the specific (albeit as of yet unnamed) prison
officials who are alleged to have deprived Plaintiff of his
constitutional rights, and against Warden Shaw, assuming
Warden Shaw was personally involved in the events
giving rise to Plaintiff's claim. Because Plaintiff has failed
to name these individual officials as defendants in this
action, his complaint is dismissed with prejudice as to
all claims against all named defendants except for his
deliberate indifference claim against Warden Shaw, which
is dismissed without prejudice. Plaintiff has 60 days from
the date of this order to amend his complaint to name
the relevant officials as defendants and/or to plead specific
facts alleging that Warden Shaw was personally involved
in the events underlying Plaintiff's claim. If Plaintiff fails
to amend his complaint in the next 60 days, the Court will
dismiss the action.

BACKGROUND
I. Facts
Because Plaintiff is proceeding pro se, the Court looks
to all of Plaintiff's pleadings and motion papers in
ascertaining the facts underlying his claim.
Plaintiff was, at all relevant times, a pre-trial detainee at
the GRVC. The GRVC has a policy of separating and
housing inmates based on gang affiliation. (Pl.'s Mem. of
Law in Opp. to Defs.' Mot. to Dismiss, Dec. 15, 2009
(“Pl.'s Mem.”), at 4.) Crips are housed in cell blocks 15,
17 and 19, and Bloods are housed in cell blocks 3–10.

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

1

Walker v. Shaw, Not Reported in F.Supp.2d (2010)
2010 WL 2541711

(Id.) This policy of separation extends to all areas of the
GRVC, including the law library, the clinic, the yard, the
gym room and the visiting area. (Id.) The policy is the
result of “a long and violent history between these gangs,”
and the safety issues that arise when members of rival
gangs are housed in close proximity to one another. (Id.)
*2 In January 2008, Plaintiff was housed in a Crips cell
block. On or about January 30, 2008, another inmate
told Plaintiff that Plaintiff was classified as an “SRG
[Security Risk Group] Bloods leader.” (Am. Compl. at
3.) This inmate, who was a member of the Crips gang,
confronted Plaintiff about his purported involvement in
the Bloods immediately after speaking to a corrections
officer. The Crips member suggested that this officer was
“my boy.” (Pl.'s Mem. at Addendum.) The Crips member
told Plaintiff that he should “leave the ‘Block’ “ because
he “deserved to be fucked up,” and that the “only thing
saving [him] was [his] age.” (Am. Compl. at 3.) (Plaintiff
is fifty-two years old.)
Plaintiff alleges that he has never been a member of the
Bloods gang and has never received a “ticket” for gang
activity or for any other infraction. (Id.)
Plaintiff believed his life to be in danger while he was
housed in a Crips cell block as a result of his SRG
classification. Plaintiff alleges that a former inmate who
had been a Crips gang member was killed while placed in
a Bloods housing area. (Id. at 6.) The Court is certainly
aware of the long-lasting feud between two vicious gangs;
it has been a feature of a number of cases before this Court.
Plaintiff feared an attack by Crips inmates, so he
went to “the bubble”—an enclosed security area in
each housing unit that is manned by prison officers—
to tell prison officials about his misclassification. (Id.)
The officer on duty was the very officer who Plaintiff
believed had disclosed his (mis)classification as a Blood
to the Crips gang member. According to Plaintiff, the
(unnamed) officer in the “bubble” was “belligerent and
uncooperative,” and chased Plaintiff away, saying “get
of [sic] [my] window with that shit.” (Pl.'s Mem. at
Addendum.)
Plaintiff then asked to speak to a captain. Although the
officer in the bubble refused to give Plaintiff permission,
the floor officer granted him access to Captain Van
Williams and Gang Intelligence Officer Louis. They told

Plaintiff that his classification was “a matter of security
and they [would] get back to [him]—just wait.” (Am.
Compl. at 3.) Both officers allegedly were sympathetic to
Plaintiff's claim that he had been erroneously classified;
they indicated that Plaintiff was “probably ... labelled [sic]
erroneously by an overjealous [sic] officer in the intake,
because the computer doesn't given [sic] any specifics as to
why [he] was so labelled [sic], neither was [he] ever given a
ticket for gang activity or for any other infraction.” (Id.)
Plaintiff also complained to Security Captain Colon and
Officer Stolely about his classification as a Blood, but “to
no avail.” (Id.) They “seem[ed] to find his situation funny”
because they laughed at him. They also allegedly asked
him to name other inmates who had threatened him as a
condition to removing him from the Crips cell block.
Plaintiff filed a grievance with the GRVC Grievance
Committee. Because no grievance forms were available,
Plaintiff put his name on a “programs list in the cell block”
and “sp[oke] to three people about [his] complaint at the
programs office.” (Id. at 5–6.) He complained that he was
wrongly classified as a Bloods gang member and then
placed in a Crips housing area. (Id. at 5.) The Grievance
Committee said only that his classification “was a security
issue.” (Id.) Neither the Grievance Committee nor the
prison officials provided him with guidance or advice
about what remedies were available to him. (Id. at 6.)
*3 Plaintiff was moved to a different housing area in
March, when his classification “went down.” (Id.)

II. Procedural History
Plaintiff filed a complaint with the Pro Se Office in the
U.S. District Court, Southern District of New York on
June 20, 2008.
By Order dated November 19, 2008, Judge Harold Baer,
Jr. directed Plaintiff to amend his complaint within sixty
days. (Pl.'s Mem. Ex. A.) On March 19, 2009, Judge
Baer dismissed the complaint because he never received
an amended complaint. But on April 3, 2008, Plaintiff
submitted a Motion to Reconsider the Judgment, alleging
that he had in fact submitted an amended complaint.
Plaintiff attached his amended complaint to the motion.
Judge Baer granted the motion and reopened the case.
(Id.) The case was reassigned in accordance with the
procedures of the Clerk's Office, and is now before this
Court.

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

2

Walker v. Shaw, Not Reported in F.Supp.2d (2010)
2010 WL 2541711

Defendants have moved to dismiss the amended
complaint. They argue that (1) Plaintiff failed to state
a claim for deprivation of due process, deliberate
indifference or municipal liability; (2) Plaintiff failed to
exhaust his administrative remedies as required under the
Prison Litigation Reform Act (“PLRA”), 42 U.S.C. §
1997e; (3) Plaintiff cannot recover damages for emotional
or mental injury without a prior showing of physical
injury, as required under PLRA § 1997e(e); (4) the
Department of Corrections, Department of Placement
and Movements and Gang Intelligence Unit are nonsuable entities under the New York City Charter, Chapter
17 § 396; and (5) Warden Shaw (the only individual named
as a defendant) was not alleged to have been personally
involved in any conduct causing the deprivation of
Plaintiff's constitutional rights, and should be dismissed
from the suit.
The Court concludes that Plaintiff has failed to raise a
viable constitutional claim for deprivation of due process
or municipal liability, and therefore grants the motion
to dismiss with respect to those claims. But Plaintiff has
raised a claim of deliberate indifference against the GRVC
prison officials who allegedly failed to promptly relocate
him to a different cell block, and so the Court denies
the Defendants' motion to dismiss Plaintiff's deliberate
indifference claims. Finally, the Court grants the motion
to dismiss Warden Shaw from the suit for lack of personal
involvement.

DISCUSSION
I. Standard of Review
In deciding a motion to dismiss pursuant to Rule 12(b)
(6), the Court must liberally construe all claims, accept
all factual allegations in the complaint as true, and draw
all reasonable inferences in favor of the plaintiff. See
Cargo Partner AG v. Albatrans, Inc., 352 F.3d 41, 44 (2d
Cir.2003); see also Roth v.. Jennings, 489 F.3d 499, 510 (2d
Cir.2007).
To survive a motion to dismiss, “a complaint must contain
sufficient factual matter ... to ‘state a claim to relief that is
plausible on its face.’ “ Ashcroft v. Iqbal, 129 S.Ct. 1937,
1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. (citing Twombly,
550 U.S. at 556). “While a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff's obligation to provide the grounds
of his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of
a cause of action will not do.” Twombly, 550 U.S. at 555
(internal quotations, citations, and alterations omitted).
Thus, unless a plaintiff's well-pleaded allegations have
“nudged his claims across the line from conceivable to
plausible, [the plaintiff's] complaint must be dismissed.”
Id. at 570; Iqbal, 129 S.Ct. at 1950–51.
*4 Despite this recent tightening of the standard for
pleading a claim, complaints by pro se parties continue to
be accorded more deference than those filed by attorneys.
Erickson v. Pardus, 551 U.S. 89, 127 (2007). So Twombly
and Iqbal notwithstanding, this Court must continue to
“construe [a pro se complaint] broadly, and interpret [it] to
raise the strongest arguments that [it] suggests.” Weixel v.
Bd. of Educ., 287 F.3d 138, 146 (2d Cir.2002). Allegations
made in a pro se plaintiff's memorandum of law, where
they are consistent with those in the complaint, may also
be considered on a motion to dismiss. Braxton v. Nichols,
No. 08 Civ. 08568, 2010 WL 1010001, at *1 (S.D.N.Y.
Mar. 18, 2010).

II. Three Defendants Are Non–Suable Entities
As a threshold matter, Plaintiff has named the
Department of Corrections (“DOC”), the Department
of Placement and Movements (“DPM”), and the Gang
Intelligence Unit (“GIU”) as parties to this lawsuit. The
DOC is a city agency, and the DPM and GIU are both
departments within the DOC. (See Defs.' Mem. at 13.)
However, Plaintiff cannot sue an agency of the City of
New York; he must sue the City. See N.Y. City Charter
ch. 17, § 396. “[T]he overwhelming body of authority holds
that DOC is not a suable entity.” Renelique v. Doe, No.
99 Civ. 10425, 2003 WL 23023771, at *6 (S.D.N.Y. Dec.
29, 2003). Since the DPM and GIU are entities within the
DOC, they too are non-suable entities. Therefore, to the
extent that Plaintiff asserts § 1983 claims against the DOC,
DPM and GIU, those claims are dismissed.

III. Plaintiff Has Failed to State a Claim for Deprivation
of Due Process

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

3

Walker v. Shaw, Not Reported in F.Supp.2d (2010)
2010 WL 2541711

Plaintiff asserts that he was deprived of due process
because he was not notified about his classification as an
SRG Bloods gang member or about the criteria used to
classify him. (Pl.'s Mem. at 3 .)
To succeed on a procedural due process claim, a plaintiff
must establish that (1) he possessed a liberty interest, and
(2) he was deprived of that interest through insufficient
process. Ortiz v. McBride, 380 F.3d 649, 654 (2d Cir.2004);
Giano v. Selsky, 238 F.3d 223, 225 (2d Cir.2001). “Liberty
interests protected by the Fourteenth Amendment may
arise from two sources—the Due Process Clause itself and
the laws of the states.” Hewitt v. Helms, 459 U.S. 460, 466
(1983).
It is well settled that the administrative classification of
prisoners does not give rise to a protectable liberty interest
under the Due Process Clause. See Hewitt, 459 U.S. at
468; Lowrance v. Achtyl, 20 F.3d 529, 535 (2d Cir.1994);
Corvino v. Vt. Dep't of Corr., 933 F.2d 128, 129 (2d
Cir.1991). Administrative classification is used to separate
potentially disruptive groups of inmates. It is precisely
“the sort of [condition of] confinement that inmates
should reasonably anticipate receiving at some point in
their incarceration.” Hewitt, 459 U.S. at 468. Prison
officials have “full discretion” to control conditions of
confinement such as prisoner classification, and prisoners
have “no legitimate statutory or constitutional entitlement
sufficient to invoke due process” in connection with such
conditions. Pugliese v. Nelson, 617 F.2d 916, 923 (2d
Cir.1980).
*5 Because prisoners have no liberty interest in being
free from classification, they are also not entitled to due
process before they are classified or prior to the imposition
of conditions necessitated by their classification. Cf.
McFadden v. Solfaro, No. 95 Civ. 1148, 1998 WL 199923
(S.D.N.Y., 1998) (non-punitive transfers of inmates are a
“condition of confinement” that does not give rise to a
liberty interest, and so plaintiff has no constitutional right
to process before or after a transfer).
States can create liberty interests through statutes or
regulations, but in order to do so, they must use
“explicitly mandatory language in connection with ...
specific substantive predicates.” Hewitt, 459 U.S. at 472.
A liberty interest could arise, for instance, when a state
creates “some right or justifiable expectation ... that [a
detainee] will not be transferred except for misbehavior

or upon the occurrence of other specified events.” Cofone
v. Munson, 594 F.2d 934, 937–38 (2d Cir.1979) (quoting
Montanye v. Haymes, 427 U.S. 236, 242 (1975)). However,
“the mere adoption of procedural guidelines governing
day-to-day prison administration, without more, will not
give rise to a state-generated liberty interest.” Hewitt, 459
U.S. at 472; see also Mativn v. Henderson, 841 F.2d 31, 34
(2d Cir.1988).
The New York City Board of Correction has implemented
regulations (called “Minimum Standards”) that set forth
procedures for the administrative classification of inmates
in New York City correctional facilities for security
purposes:
(i) [The security classification] shall be in writing and
shall specify the basic objectives, the classification
categories, the variables and criteria used, the
procedures used and the specific consequences to the
prisoner of placement in each category.
(ii) It shall include at least two classification categories.
(iii) It shall provide for an initial classification
upon entrance into the corrections system. Such
classification shall take into account only relevant
factual information about the prisoner, capable of
verification.
(iv) It shall provide for involvement of the prisoner at
every stage with adequate due process.
(v) Prisoners placed in the most restrictive security
status shall only be denied those rights, privileges and
opportunities that are directly related to their status
and which cannot be provided to them at a different
time or place than provided to other prisoners.
(vi) It shall provide mechanisms for review of prisoners
placed in the most restrictive security status at
intervals not to exceed four weeks for detainees and
eight weeks for sentenced prisoners.
40 RCNY § 1–02(e).
If Plaintiff's allegations are true, then GRVC prison
officials did not follow procedures when they classified
Plaintiff as a Blood. According to Plaintiff, he was not
notified in writing of his classification, was not involved
in his classification or afforded any process, and was not
given any classification review when he protested.

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

4

Walker v. Shaw, Not Reported in F.Supp.2d (2010)
2010 WL 2541711

*6 However, despite the City's use of mandatory
language and the words “due process,” several of my
colleagues have concluded that the Minimum Standards
do not create a protectable liberty interest. Adams v.
Galletta, No. 96 Civ. 3750, 1999 WL 959368, at *5–
6 (S .D.N.Y. Oct. 19, 1999) (Koeltl, J.); Korkala v.
N.Y.C. Dep't of Corr., No. 84 Civ. 5740, 1986 WL
9798, at *4–5 (S.D.N.Y. Sep. 4, 1986) (Carter, J.). They
place no “substantive limitations on official discretion,”
Korkala, 1986 WL 9798, at *4–5, and “do not purport
to grant individual prisoners the right not to be in
any particular category,” Adams, 1999 WL 959368, at
*5–6. The implementing regulation for the Minimum
Standards (Directive 4505) also gives prison officials
“unlimited discretion to select inmates for evaluation or
reclassification and to determine whether ... they may be
assigned to restrictive housing units.” Id. at *4–5; see also
Adams, 1999 WL 959368, at *6. “[T]he adoption of such
procedural guidelines, without more, suggests that it is
these restrictions alone, and not those federal courts might
also impose under the Fourteenth Amendment, that the
state chose to require.” Korkala, 1986 WL 9798, at *4.
Because of the lack of a protectable liberty interest, the
court in Korkala dismissed the due process claims of
a prisoner who was wrongly classified as a maximumsecurity inmate and denied a proper hearing to address his
classification. Korkala, 1986 WL 9798.
In the case at bar, which is analogous to Korkala,
Plaintiff was also wrongly classified as a security risk.
Plaintiff believes he should have received “constructive
notice of being assessed” as an SRG Blood, and of
the “criteria of assessment” used to classify him. (Am.
Compl. at 3.) But neither the Due Process Clause nor
the Minimum Standards gives rise to a liberty interest
that protects Plaintiff from security classification (or misclassification). And because Plaintiff's “designation [as an
SRG Bloods member] is not the deprivation of a liberty
interest, the prison authorities were not constitutionally
required to afford due process in imposing it.” Adams,
1999 WL 959368, at *6 n. 2. Plaintiff's claim for denial of
due process is dismissed.

IV. Plaintiff Has Failed to State a Claim for Municipal
Liability
In order to plead a § 1983 claim against a municipality,
plaintiff must allege that a municipal policy or custom

caused the deprivation of his constitutional rights. Monell
v. Dep't of Soc. Serv., 436 U.S. 658, 690–91 (1978);
Sarus v. Rotundo, 831 F.2d 397, 400 (2d Cir.1987). A
municipality may not be held liable solely on the basis of
respondeat superior in a 1983 action. Monell, 436 U.S.
at 694–95. Rather, the plaintiff must first allege “the
existence of a municipal policy or custom in order to show
that the municipality took some action that caused his
injuries.... Second, the plaintiff must establish a casual
connection—an “affirmative link”—between the policy
and deprivation of his constitutional rights.” Vippolis v.
Village of Haverstraw, 768 F.2d 40, 44 (2d Cir.1985),
cert. denied, 480 U.S. 916 (1987) (citing Oklahoma City v.
Tuttle, 471 U.S. 808, 824 n. 8 (1985)).
*7 Plaintiff makes two separate claims of municipal
liability against the City of New York. First,
Plaintiff claims that his misclassification by the Gang
Intelligence Unit was deliberate and “stem[med] from City
policy.” (Am. Compl. at 3, 6.) However, he alleges no
specific facts to support his conclusory statement; rather,
the facts alleged in his pleadings suggest either the absence
of any such policy or the failure to follow a policy (which
is the antithesis of a link between policy and action).
Plaintiff was told by prison officials that he was likely
misclassified by an “overjealous [sic] officer in the intake,
because the computer doesn't give any specifics as to why
[he] was so labelled [sic], neither was [he] ever given a
ticket for gang activity or for any other infraction.” (Am.
Compl. at 3.) It appears the prison has in place some
system of labeling inmates based on information collected
and stored in its database, and the prior gang activity of
the detainee. Plaintiff also describes in his motion papers
the GRVC's policy of separating inmates based on gang
affiliation—a policy that was created to prevent the safety
issues that may arise when members of rival gangs are
housed in close proximity to one another. (Pl.'s Mem. at
4.) There is no allegation of fact suggesting that GRVC
prison officials followed a City policy by deliberately
misclassifying Plaintiff as a member of one gang and then
placing him in a rival gang's cell block.
Furthermore, Plaintiff pleads no facts to show that his
misclassification was more than an isolated incident. A
single incident alleged in a complaint can be sufficient to
establish a municipal policy, but only if it is accomplished
by a city official with final policymaking authority.
Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986).

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

5

Walker v. Shaw, Not Reported in F.Supp.2d (2010)
2010 WL 2541711

Here, the individual officers in the Gang Intelligence Unit
who were responsible for making the SRG assessments
and classifying inmates are not alleged to have had final
policymaking authority.
Second, Plaintiff also claims that the City failed to
properly train its prison officials in making gang
intelligence assessments. But he has not alleged any of
the following elements of a failure-to-train claim: “(1)
that a policymaker knows ‘to a moral certainty’ that
city employees will confront a particular situation; (2)
that the situation presents the employee with ‘a difficult
choice of the sort that training or supervision will make
less difficult;’ and (3) that ‘the wrong choice by the
city employee will frequently cause the deprivation of a
citizen's constitutional rights.’ “ Cabbie v. City of New
York, No. 04 Civ. 9413, 2010 WL 1222035 (S.D.N.Y. Mar.
29, 2010) (quoting Walker v. City of New York, 974 F.2d
293, 297–98 (2d Cir.1992)).
A “simple recitation that there was a failure to train ...
does not suffice to allege that a municipal custom or policy
caused the plaintiff's injury.” Dwares v. City of New York,
985 F.2d 94, 100–101 (2d Cir.1993). Because Plaintiff does
not allege a single fact in support of this claim, both of
Plaintiff's municipal liability claims are dismissed with
prejudice.

V. Plaintiffs Claim for Deliberate Indifference
*8 Plaintiff claims that unnamed prison officials acted
with deliberate indifference to his safety by: (1) failing
to promptly remove him from the Crips cell block once
notified of his classification as a Blood; (2) disclosing his
classification as a Blood to a Crips member; (3) laughing
at him when he asked to be transferred; and (4) retaliating
against him for accusing the officer in the bubble of
disclosing his status, by demanding that he name other
inmates who threatened him as a condition of removing
him from the Crips cell block. (See Am. Compl. at 3; Pl.'s
Mem. at 4.)
The failure to name as defendants any of the officials who
allegedly did these things—even as “John Does” (there
is no allegation that the warden or the only individual
defendant in the caption did any of the above)—dooms
this claim. However, this particular claim must be
dismissed without prejudice.

Because “a detainee may not be punished prior to an
adjudication of guilt in accordance with due process
of law,” the constitutional rights of a detainee are
analyzed under the Due Process Clause of the Fourteenth
Amendment. Bell v. Wolfish, 441 U.S. 520, 535–36 (1979).
However, claims of prison officials' deliberate indifference
to the health or safety of a prisoner are “analyzed under
the same standard irrespective of whether they are brought
under the Eighth or Fourteenth Amendment.” Caiozzo v.
Koreman, 581 F.3d 63, 72 (2d Cir.2009). “[P]rison officials
owe the same duty to provide the same quantum of basic
human needs and humane conditions of confinement to
both [convicted inmates and pretrial detainees] .... [T]here
is no legally significant situation in which a failure to
provide an incarcerated individual with ... protection from
violence is punishment yet is not cruel and unusual.” Id.
(quoting Hare v. City of Corinth, Miss., 74 F.3d 633, 649
(5th Cir.1996)). Therefore, Plaintiff's claims are analyzed
under the Eighth Amendment “deliberate indifference”
standard.
The Eighth Amendment proscribes the unnecessary and
wanton infliction of pain, and imposes a duty on prison
officials to take “reasonable measures to guarantee the
safety of inmates.” Farmer, 511 U.S. at 532. In light of
this duty, a prison official acts with deliberate indifference
when two requirements are met: (1) a plaintiff was
subjected to conditions posing a substantial risk of serious
harm, and (2) the prison officials knew of and disregarded
the risk by failing to take reasonable measure to abate the
harm. Haves v. N.Y.C. Dep't of Corr., 84 F.3d 614, 620
(2d Cir.1996) (citing Farmer v. Brennan, 511 U.S.825, 834
(1994)).

A. Prison Officials Failed to Promptly Remove Plaintiff
From the Crips Cell Block
Plaintiff would meet both requirements of a deliberate
indifference claim if he alleged that identified, responsible
prison officials failed to promptly relocate him from the
Crips cell block after he was classified as a Blood.
*9 First, Plaintiff was subjected to a “substantial risk of
serious harm” by prison officials, whose alleged acts or
omissions were “sufficiently serious” as to create “unduly
harsh conditions of confinement.” Branham v. Meachum,
77 F.3d 626, 630 (2d Cir.1996); see also Farmer, 511 U.S.
at 834. Plaintiff requested a transfer from his Crips cell
block in January 2008, when he first complained to prison
officials about his misclassification as an SRG Blood. At

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

6

Walker v. Shaw, Not Reported in F.Supp.2d (2010)
2010 WL 2541711

that time, Plaintiff's classification as a Blood was known to
at least one Crips inmate in the cell block, who threatened
Plaintiff by saying that Plaintiff “deserved to be fucked
up.” (Am. Compl. at 3.) There had already been at least
one prior instance of deadly gang violence between the
Bloods and Crips at the GRVC, where a Crips member
was killed while housed in a Bloods cell block, and the
Court would have to be woefully ignorant not to be aware
of the bloody history between these two deadly gangs.
Yet prison officials did not grant Plaintiff's request to be
removed from the Crips cell block until two months after
Plaintiff's initial complaint.

“any inmate perceived to be a Neta member was physically
harmed.” Green, 2008 WL 2485402, at *7.

Defendants argue that Plaintiff cannot maintain any
claims for constitutional deprivation because he did not
suffer any physical attack during those two months. (See
Defs.' Br. at 9.) But an actual attack is not necessary
to allege the existence of a substantial risk of serious
harm, since it is based on hindsight rather than on
“circumstances of which [an] official was aware at the time
he acted or failed to act.” Heisler v. Kralik, 981 F.Supp.
830, 837 (S.D.N.Y.1997).

Plaintiff could also successfully allege that the responsible
officers knew of and disregarded the risk by failing to take
reasonable measure to abate the harm, provided he named
them as defendants.

In the absence of a physical attack, “extreme and
officially sanctioned psychological harm” can also give
rise to an Eighth Amendment Claim. See id. at 837. The
fear of assault, when unaccompanied by specific threats
or imminent harm, is “not the kind of extreme and
officially sanctioned psychological harm that supports
a claim of damages under the Eighth Amendment.”
Manos v.. Decker, No. 03 Civ. 2370, 2005 WL 545215,
at *8–9 (S.D.N.Y. Mar. 7, 2005); Cruz v. Hillman, No.
01. Civ. 4169, 2002 WL 31045864, at *8–9 (S.D.N.Y.
May 16, 2002); Bolton v. Goord, 992 F.Supp. 604, 627
(S.D.N.Y.1998). However, when a prisoner is subjected
to specific threats from another inmate, and there are
“indication[s] that the threat will be carried out,” the
failure of prison officials to act may give rise to a deliberate
indifference claim. Green v. City of N.Y. Dep't of Corr.,
No. 06 Civ. 4978, 2008 WL 2485402, at *6–7 (S.D.N.Y.
June 19, 2008).
In Green v. City of New York Department of Corrections,
a prisoner who was falsely designated as a member of
the Netas gang claimed that prison officials acted with
deliberate indifference by failing to change his designation
for six months. The court dismissed the complaint for,
among other things, the plaintiff's failure to allege that

*10 In this case, unlike in Green, Plaintiff has alleged that
the violent history between the Bloods and Crips caused at
least one inmate to be killed while placed in the opposing
gang's housing area. The existence of a policy of separating
rival gang members further demonstrates that the threat of
harm to inmates housed in a rival gang's cell block is real
and significant. Due to these factors, the prison officials'
failure to relocate Plaintiff created a substantial risk of
serious harm to Plaintiff.

In order to act with “sufficient culpable intent” to
constitute deliberate indifference, a prison official must be
aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he
must also draw the inference. See Hayes v. N.Y.C. Dep't
of Corr., 84 F.3d 614, 620 (2d Cir.1996); Hathaway v.
Coughlin, 37 F.3d 63, 66 (2d Cir.1994). The prison official
“need not desire to cause such harm or be aware that such
harm will surely or almost certainly result. Rather, proof
of awareness of a substantial risk of the harm suffices.”
Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir.2006).
Here, Plaintiff alleges that unnamed prison officials acted
with the requisite mental state. Plaintiff complained to
them numerous times. The officials knew that Plaintiff
was classified as an SRG Bloods member and housed in
a Crips cell block—facts from which they could draw the
inference that Plaintiff was at a substantial risk of serious
harm.
These officials also allegedly drew the inference that
Plaintiff was subjected to a substantial risk of harm.
A plaintiff can satisfy this criteria by “showing that
a substantial risk of inmate attacks was longstanding,
pervasive, well-documented or expressly noted by prison
officials in the past, and ... that the defendant[s] ...
had been exposed to information concerning the risk.”
Warren v. Goord, 476 F.Supp.2d 407, 411 (S.D.N.Y.2007)
(internal quotations and citations omitted). According to
Plaintiff, the GRVC's policy of separating inmates based
on gang affiliation is the result of “a long and violent

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

7

Walker v. Shaw, Not Reported in F.Supp.2d (2010)
2010 WL 2541711

history between [the Bloods and Crips].” (Pl.'s Mem. at 4.)
The policy demonstrates that the prison is well aware of
the substantial risk of attack to inmates who are affiliated
with one gang and housed with members of a rival gang.
Given that Plaintiff complained to several prison officials,
including Gang Intelligence Officer Louis and Captain of
Security Colon, Plaintiff has pleaded facts that establish
that the prison officials knew that Plaintiff was subjected
to a substantial risk of serious harm.
Yet the prison officials allegedly disregarded this risk by
failing to take reasonable measures to abate the threatened
harm to Plaintiff. They left Plaintiff in the Crips cell block
for two months, while Plaintiff feared for his safety. Even
if Plaintiff's SRG classification was a “security issue” that
was not immediately addressable by the prison officials,
this Court cannot think of any reason why Plaintiff
could not have been moved to a different cell block in
the meantime. After all, Plaintiff was still classified as a
Blood at that time, and his then-classification should have
warranted an immediate relocation to a different housing
area.
*11 In Swift v. Tweddell, 582 F.Supp.2d 437, 446–
47 (W.D.N.Y.2008), the court determined that prison
officials took reasonable measures to protect the safety
of a prisoner by granting the prisoner's request to be
transferred to a different housing area within one or
two hours of the prisoner's complaints about threats
from other inmates. In contrast, the court in Warren v.
Goord denied a motion to dismiss a prisoner's deliberate
indifference claims against prison officials who were
allegedly aware of a substantial risk to the prisoner's
safety and did nothing to remedy the situation. Warren,
476 F.Supp.2d at 412; see also Hayes v. New York City
Department of Corrections, 84 F.3d 614, 621 (2d Cir.1996)
(determining that a genuine issue of fact existed about
whether prison officials acted reasonably in denying the
threatened prisoner a transfer, when the record indicated
that another inmate who reported that he was threatened
was transferred that same day, and DOC officials testified
that “it is standard procedure to relocate an inmate
whenever an inmate informs officials that his life is
threatened”).
In the present case, Plaintiff was left in the Crips cell
block for two months, during which time nothing was
done to move him, despite the threats to Plaintiff's safety.
Plaintiff was relocated only upon his reclassification (i.e.,

not as a Blood) in March 2008. Given these facts, a trier of
fact could conclude that the prison officials failed to take
reasonable measures to abate the harm. Thus, Plaintiff's
allegations relating to deliberate indifference are sufficient
to state a cause of action against the individual officials
who participated in the actions of which he complains.
However, Plaintiff has failed to name these individual
officers in his amended complaint. Rather, Plaintiff brings
his complaint against three non-suable entities as well
as against the GRVC Warden, Robert Shaw, who is
not alleged to have been personally involved in the
deprivation of Plaintiff's constitutional rights. The only
other defendant Plaintiff has named in this case is the City
of New York—but as explained above, Plaintiff fails to
state a claim for municipal liability.
Plaintiff could amend his complaint to add these
individuals as defendants if he knows their names or badge
numbers; indeed, it is possible that he already knows who
some of them are (Louis and Colon are possibilities). If
not, Plaintiff could amend to sue “John Doe” defendants
and then take discovery to learn the identity of the officers
he wishes to sue. The Court grants Plaintiff 60 days from
the date of this order to file an amended complaint that
does one or the other.

B. Prison Officials Acted With Deliberate Indifference
to Plaintiff's Safety by Disclosing Plaintiffs SRG
Classification to a Crips Gang Member
As with the officials discussed above, although Plaintiff
has not named the prison official in “the bubble” as an
individual defendant, he has also sufficiently pleaded that
one corrections officer acted with deliberate indifference
by disclosing Plaintiff's SRG classification to another
inmate.
*12 A prison official's disclosure of information about
one inmate to other inmates may give rise to a cause of
action if the “alleged disclosure ... caused plaintiff to be
subjected to any harm, actual or threatened.” Swift v.
Tweddell, 582 F.Supp.2d 437, 447–48 (W.D.N.Y.2008).
Here, the officer in the bubble clearly created the
substantial risk of serious harm to Plaintiff by disclosing
Plaintiff's SRG Blood classification to a Crips inmate
who was housed in the same Crips cell block as Plaintiff.
Because of the officer's disclosure, Plaintiff was threatened
by the Crips inmate, who told Plaintiff that he “deserved
to be fucked up.”

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

8

Walker v. Shaw, Not Reported in F.Supp.2d (2010)
2010 WL 2541711

Furthermore, the officer allegedly knew of and
disregarded the risks to Plaintiff by failing to take
reasonable measures to abate the harm. The bubble is an
enclosed security area within each housing area (Defs.'
Mem. of Law in Supp. of Mot. to Dismiss, Nov. 23,
2009, at 3 n. 3), and the officer in the bubble knew that
Plaintiff was housed in his cell block—a Crips cell block.
However, he allegedly still revealed Plaintiff's SRG Blood
classification to the Crips inmate in the same cell block.
Given the violent history between the rival gangs, and
the GRVC's policy of separating inmates affiliated with
rival gangs, the prison official allegedly drew the inference
that his act subjected Plaintiff to a substantial risk of
serious harm. See Warren v. Goord, 476 F.Supp.2d 407,
411 (S.D.N.Y.2007) (internal quotations and citations
omitted).
Finally, this unnamed officer failed to take reasonable
measures to abate the harm by chasing Plaintiff away
from the bubble when Plaintiff tried to complain, saying
“get of [sic] my window with that shit.” (Pl.'s Mem.
at Addendum.) Therefore, Plaintiff could state a claim
against the prison official in the bubble—but he must
identify and name his as a defendant.

C. Prison Officials Did Not Act with Deliberate
Indifference By Laughing When Plaintiff Asked To Be
Transferred
Although Plaintiff's other deliberate indifference
allegations do state a claim, his argument that Captain
Colon and Officer Stolely (who are identified but not
named as defendants) acted with deliberate indifference
to his safety by laughing at him when he asked to be
transferred is plainly insufficient.
Laughter, verbal harassment or even spitting by prison
officials, when “unaccompanied by any injury, no matter
how inappropriate, unprofessional, or reprehensible
it might seem,” does not constitute the violation
of any federally protected right. Aziz Zarif Shabazz
v. Pico, 994 F.Supp. 460, 475 (S.D.N.Y.1998); see
also Show v. Patterson, 955 F.Supp. 182, 191–92
(S.D.N.Y.1997); Greene v. Mazzuca, 485 F.Supp.2d 447,
451 (S.D.N.Y.2007); Moncrieffe v. Witbeck, No. 97
Civ. 253, 2000 WL 949457, at (N.D.N.Y. June 29,
2000). Therefore, Plaintiff has failed to raise a deliberate
indifference claim on the ground that two prison officials
laughed at him.

D. Prison Officials Did Not Retaliate Against Plaintiff
By Asking Him To Name Other Inmates Who
Threatened Him As A Condition of Relocating Plaintiff
*13 Finally, Plaintiff claims that prison officials
retaliated against him by asking him to name other
inmates that had threatened him as a condition to moving
Plaintiff from the Crips cell block. Plaintiff believes the
officials were retaliating against him for claiming that
the officer in the bubble had disclosed Plaintiff's SRG
classification.
“Courts must approach prisoner claims of retaliation
with skepticism and particular care” for two reasons:
they are “easily fabricated,” and “any adverse action
taken against a prisoner by a prison official ... can be
characterized as a ... retaliatory act.” Dawes, 239 F.3d
at 491 (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d
Cir.1983)). To plead retaliation, a plaintiff must advance
“non-conclusory allegations” that (1) he engaged in a
protected action, (2) the prison officials took adverse
action against him, and (3) a causal connection existed
between the protected act and the adverse action. See
Dawes, 239 F.3d at 491–92.
Here, Plaintiff claims that Captain Colon and Officer
Stolely took adverse action against him by asking him
to name other inmates who had threatened him as a
condition of relocating him. But asking for information,
in and of itself, does not amount to adverse action. The
issue is whether conditioning a move that was dictated
by safety concerns on providing information constituted
retaliation—not whether the request for information itself
constituted retaliation. Because Plaintiff alleges no facts
to suggest that these two officials retaliated against him,
the Court dismisses Plaintiff's retaliation claims.

VI. Dismissal for Failure to Exhaust Administrative
Grievances At This Stage Would Be Improper
Defendants assert the affirmative defense that Plaintiff
failed to exhaust his administrative remedies, as required
by the Prison Litigation Reform Act (“PLRA”).
Section 1997e(a) of the PLRA provides that “no action
shall be brought with respect to prison conditions [under
section 1983] ... 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. §

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

9

Walker v. Shaw, Not Reported in F.Supp.2d (2010)
2010 WL 2541711

1997e(a). The exhaustion requirement “applies to all
inmate suits about prison life, whether they involve
general or particular episodes, and whether they allege
excessive force or some other wrong.” Porter v. Nussle, 534
U.S. 516, 532 (2002). The requirement cannot be satisfied
by an “untimely or otherwise procedurally defective
administrative grievance or appeal.” Woodford v. Ngo, 548
U.S. 81, 83–84 (2006). Instead, the plaintiff must properly
exhaust his remedies by “using all steps that the agency
holds out, and doing so properly (so that the agency
addresses the issues on the merits).” Id. at 90 (internal
quotation marks omitted).
The Second Circuit has recognized three circumstances,
however, that may excuse a plaintiff from the exhaustion
requirements: (1) when administrative remedies are
not available to plaintiff, (2) when defendant is
estopped from asserting exhaustion as an affirmative
defense, and (3) when special circumstances, such as a
reasonable misunderstanding of the grievance procedures,
otherwise justify the prisoner' failure to comply with the
requirements. See Macias v. Zenk, 495 F.3d 37, 41 (2d
Cir.2007) (citing Hemphill v. New York, 380 F.3d 680, 686
(2d Cir.2004)).
*14 Plaintiff contends that he exhausted administrative
remedies by complaining to several prison officials, filing
a grievance with the GRVC Grievance Committee, and
filing a “follow up grievance as a form of appeal.” (Am.
Compl. at 4; Pl.'s Mem. at 6.)

These actions do not technically comply with the
DOC Inmate Grievance Resolution Program (“IGRP”),
which requires an inmate at Rikers Island must take
the following four steps to exhaust his administrative
remedies: (1) file a complaint with the grievance
committee, (2) appeal to the facility warden, (3) appeal
to the Central Office Review Committee, and (4) appeal
to the NYC Board of Correction. (See DOC Directive
3375 R–A, at 1, available at http:// www.nyc.gov/html/
doc/downloads/pdf/3375R-A.pdf.)
However, the pleadings raise the possibility that Plaintiff
has met either one or two of the three exceptions excusing
his failure to exhaust. First, Plaintiff's failure to exhaust
could be excusable because administrative remedies
were unavailable to him. See Marias, 495 F.2d at 41.
Under DOC Directive 3375 R–A, certain “classification
designations” are considered non-grievable, and SRG
classifications may fall within that category. (Id. at 2.)

None of the parties has briefed this issue, so the Court
lacks an adequate basis from which to form a conclusion
regarding grievability of SRG classifications.
Second, even if SRG classifications are grievable, there
is evidence to suggest that Plaintiff was prevented from
grieving. Every time Plaintiff complained about his
classification as an SRG, he was told that it was a security
issue. (Am. Compl. at 5.) He was unable to acquire a
grievance form and instead had to file his grievance on a
cell block “programs list.” (Am. Compl. at 5–6.) He was
never told that his grievances were denied, and he was
never advised that he could appeal. He was never provided
with available forms of relief. (Id.) In his complaint,
Plaintiff answered to the question, “Does the grievance
procedure at the jail, prison or other correctional facility
where your claim(s) arose cover some or all of your
claims(s)?” by checking “No.” (Am. Compl. at 5). At
this stage of the litigation, these allegations are more
than sufficient to warrant denial of defendants' motion
to dismiss on failure to exhaust grounds. See Burns v.
Moore, 2002 WL 91607, at 4–5 (S.D.N.Y.2002); Feliciano
v. Goord, No. 97 Civ. 263, 1998 WL 436358, at *2
(S.D.N.Y. July 27, 1998) (holding that dismissal for failure
to exhaust is not appropriate where plaintiff was unable
to file a grievance as a result of prison officials' telling
him that the incident he wished to complain about was
not a “grievance matter” and refusing to provide him with
grievance forms).
For these reasons, dismissal for failure to exhaust is not
appropriate at this stage.

VII. The Claims Against Warden Shaw Are Dismissed
Plaintiff also names Warden of GRVC Robert Shaw
as a Defendant to this lawsuit. However, § 1983 claims
must be brought against officials who were personally
involved in the conduct that allegedly violated a plaintiff's
constitutional rights. Williams v. Smith, 781 F.2d 319,
323 (2d Cir.1983). Since Plaintiff has failed to allege
any personal involvement by Shaw, or even mention
Shaw anywhere else in the Amended Complaint or
motion papers, any § 1983 claims that Plaintiff asserts
against Shaw are dismissed without prejudice. However,
since Plaintiff could plead a deliberate indifference claim
against Warden Shaw, if Warden Shaw was involved in the
events giving rise to Plaintiff's claim, Plaintiff is granted
60 days to replead his deliberate indifference claim against
Warden Shaw.

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

10

Walker v. Shaw, Not Reported in F.Supp.2d (2010)
2010 WL 2541711

VIII. No Claim for Unnecessary Searches as Seizures
*15 As a final matter, Plaintiff mentions in the
“Relief” section of his Amended Complaint that
his classification “left [him] up to unnecessary and
unreasonable searches.” (Am. Compl. at 6.) But “the
Fourth Amendment proscription against unreasonable
searches does not apply within the confines of the prison
cell.” Powell v.. Schriver, 175 F.3d 107, 112 n. 3 (2d
Cir.1999) (citing Hudson v.. Palmer, 468 U.S. 517, 526
(1984)). As Plaintiff does not even allege that he was
actually subjected to unnecessary searches as a result of his
SRG classification, Plaintiff fails to raise a claim for any
violation of his constitutional rights on those grounds.

IX. Failure to Meet the Physical Injury Requirement
under PLRA § 1997e(e)
Under the PLRA, an inmate who seeks to recover
compensatory damages for a mental or emotional injury
must first establish that he has suffered a “physical
injury.” See 42 U.S.C. § 1997e(e); Petty v. Goord, No. 00
Civ. 803, 2008 WL 2604809, *6 (S.D.N.Y. June 25, 2008).
However, a plaintiff is not required to show physical
injury in order to recover nominal damages, punitive
damages, or to obtain declaratory relief. In fact, it is error
for courts not to award nominal damages in § 1983 actions
when a constitutional violation has been established. See
Robinson v. Cattaraugus, 147 F.3d 153, 162 (2d Cir.1998).
Here, Plaintiff has failed to plead that he suffered a
physical injury; therefore, he is barred from recovering
compensatory damages for any alleged emotional injury
he suffered. But he is still entitled to recover nominal
and (potentially) punitive damages for the violation of his
constitutional rights.

End of Document

CONCLUSION
For the foregoing reasons, Defendants' motion to dismiss
is granted with prejudice as to all claims against all
defendants except Plaintiff's deliberate indifference claim
against Warden Shaw. Plaintiff is granted 60 days from
the date of this order to replead his deliberate indifference
claim, naming either (1) the appropriate individual
defendants by name; or (2) “John Doe” defendants, listed
separately so that it is possible to take discovery as to
who they are. Within the 60 day period, Plaintiff must
also plead specific facts alleging that Warden Shaw was
personally involved in the events underlying Plaintiff's
claim, or the Court will dismiss the remaining claim
against Warden Shaw. If Plaintiff fails to amend his
complaint during the next 60 days, the Court will dismiss
the action.
Plaintiff has also filed two motions to compel with this
Court (docket nos. 21 and 27). The motion to compel
at docket no. 27 was denied by Magistrate Judge Kevin
Nathaniel Fox, on January 26, 2010. (See docket no. 30.)
The magistrate judge has informed this Court that the
motion to compel at docket no. 21 is a duplicate of the
motion to compel at docket no. 27. Therefore, this Court
now denies the motion to compel at docket no. 21.
The Clerk of the Court is instructed to remove the motion
to dismiss (docket no. 16) and the motion to compel
(docket no. 21) from the Court's active motion list.
*16 This constitutes the order and decision of this Court.

All Citations
Not Reported in F.Supp.2d, 2010 WL 2541711
© 2017 Thomson Reuters. No claim to original U.S. Government Works.

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

11

Greene v. Garcia, Not Reported in F.Supp.2d (2013)
2013 WL 1455029

2013 WL 1455029
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Darryl GREENE, Plaintiff,
v.
Captain GARCIA, et al., Defendants.
No. 12 CV 4022(LAP)(MHD).
|
March 26, 2013.

Memorandum and Order
LORETTA A. PRESKA, Chief Judge.
*1 Plaintiff Darryl Greene (“Plaintiff”) filed the instant
action pro se on May 18, 2012 alleging that his
constitutional rights had been violated by Defendants
Captain Garcia (“Captain Garcia”) and Captain Van
Williams (“Captain Van Williams”), both of whom are
corrections officers at the New York City Department
of Corrections' George R. Vierno Center (“GRVC”).
In his Complaint, Plaintiff invokes 42 U.S.C. § 1983
and alleges that Garcia and Van Williams (together,
the “Defendants”) deprived him of due process and
acted with deliberate indifference to his safety when he
was incarcerated as a pre-trial detainee at the GRVC.
Defendants have moved to dismiss the Complaint in
its entirety, and for the reasons discussed, the Court
GRANTS in part and DENIES in part Defendants'
motion [dkt. no. 12].

I. BACKGROUND
For the purpose of deciding the motion to dismiss, the
Court takes as true the following factual allegations in the
Complaint and draws all reasonable inferences in favor
of Plaintiff. See Goldstein v. Pataki, 516 F.3d 50, 56 (2d
Cir.2008).
On June 20, 2011, while he was incarcerated as a pretrial detainee at the GRVC, Plaintiff went to the Law
Library to take an exam to become a Suicide Prevention
Aide. (Compl. 4–5, ¶¶ 1, 12 .) 1 While waiting to take
the exam, Plaintiff submitted his identification card to
the Law Library Officer, non-defendant Officer Harris.

Id. After reviewing Plaintiff's information, Officer Harris
informed Plaintiff that he was ineligible to be a Suicide
Prevention Aide because he had been designated in the
GRVC's database as “S.R.G., Bloods.” Id. The “S.R.G.
Bloods” designation refers to an inmate being identified
as a member of the “Security Risk Group” the Bloods'
gang. Id. ¶ 5. Officer Harris then informed Plaintiff that,
in order to correct his S.R.G. designation, he should speak
to GRVC Security. Id. 4, ¶ 2.
1

Because the paragraph numbers used in the
Complaint are repeated across sections, for ease of
reference, the Court cites to the Complaint's ECF
page number in addition to its paragraph number.

Plaintiff originally contacted non-defendant Security
Captain Butler on June 22, 2011 to inform him that
he had been incorrectly designated as a member of
the Bloods' gang, but because Captain Butler had since
retired, Plaintiff never received a response to this inquiry.
Id. 5, ¶ 5. However, on July 14, 2011, Plaintiff spoke
in the corridor with the new Security Captain, Captain
Garcia. Id. 5, ¶ 7. In the course of their conversation,
Plaintiff addressed with Captain Garcia his desire to
correct his improper designation as a member of the
Bloods. Id. Plaintiff further explained to Captain Garcia
that his incorrect designation was of particular concern
to him because he was being housed in an area for
inmates with an S.R.G. Crips designation. Id. 5, ¶ 8.
Although Plaintiff expressed that he had no preference in
his housing location, as long as his medical needs 2 were
accommodated, he expressed a clear desire to have his
assessment cleared of any gang affiliation. Id. In response
to Plaintiff's inquiry, Captain Garcia first responded that
he would look into the situation and see what he could
do. Id. 5, ¶ 9. Plaintiff then informed Captain Garcia
that, as a result of his incorrect designation and current
housing assignment, he feared that he may be threatened
or attacked by fellow inmates who believed him to be
a member of a rival gang. 3 Id. Captain Garcia then
responded to Plaintiff “Welcome to G ... R ... V ... C,”
before walking away as if nothing had been said to him.
Id. 5, ¶ 10.
2

3

Plaintiff has a medical condition which requires
him to be housed in a heat sensitive housing unit.
(Compl.5, ¶ 8.)
Due to a long and violent history between members
of the Bloods and Crips, at the time of Plaintiff's

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

1

Greene v. Garcia, Not Reported in F.Supp.2d (2013)
2013 WL 1455029
incarceration, the GRVC had a policy of separating
inmates based on gang affiliation. Id. 5, ¶¶ 12–14. This
policy of separation results in Bloods and Crips being
housed in separate housing facilities, as well as being
separated when in the communal areas of the GRVC
(i.e. Law Library, yard, gym, and visiting area.) Id.

*2 On or about January 19, 2012, Plaintiff was involved
in a physical altercation with a member of the Crips. Id.
6, ¶ 17. The incident was brought to the attention of
Captain Van Williams, who investigated the particulars
of the fight. Id. 6, ¶ 18. When questioned by Captain
Van Williams as to what had occurred, Plaintiff informed
Captain Van Williams that the fight had transpired
because a member of the Crips had assaulted Plaintiff
based on a belief that Plaintiff was a Blood “on the low.”
Id. Captain Van Williams then questioned Plaintiff as
to whether he was in fact a member of the Bloods, to
which Plaintiff responded in the negative. Id. 6, ¶ 19.
Captain Van Williams then reviewed the S.R.G. master
sheet and asked for Plaintiff's identification, both of
which reflected that Plaintiff was designated as “S.R.G.
Bloods.” Id. Upon seeing Plaintiff's designation, Captain
Van Williams said to Plaintiff “You don't even suppose to
be in this house.” Id. Plaintiff then responded to Captain
Van Williams that he had a medical condition which made
him sensitive to heat and he did not care where he was
housed, as long as the housing was heat-sensitive. Id.
Later, on the evening of January 19, 2012, Plaintiff was
taken to the GRVC Intake area to be re-housed in a
housing area designated for Bloods' members. Id. 6, ¶ 20.
Due to Plaintiff's heat sensitivity, however, Plaintiff was
later instructed to “pack-up” and was told that he was
being returned to a housing area designated for Crips'
members. Id. Although he was aware that his incorrect
designation as a Blood made it dangerous for him to be
housed with Crips, Plaintiff complied with the order to
move back to a Crips' housing area. Id. 6, ¶ 21.
At all times, Captain Van Williams was aware that:
(1) Plaintiff continued to be incorrectly designated as
a Bloods member; (2) Plaintiff was being returned to
a Crips housing area; and (3) Plaintiff had previously
been attacked by a Crips' affiliated inmate as a result
of his designation. Id. 6, ¶¶ 22, 23 and 28. Captain Van
Williams' decision to move an inmate designated as a
Blood into a Crips' housing area was in direct violation
of the GRVC's policy of separating inmates who are
designated as belonging to rival gangs. Id. 6, ¶¶ 22–23.

As a direct result of his incorrect designation as a member
of the Bloods, Plaintiff's right to work in the GRVC
Barber Shop has been revoked. Id. 7, ¶ 25. In addition,
Plaintiff has also been subjected to random searches,
including strip searches, of his cell and person. Id. 7,
¶ 26. Finally, Plaintiff has been subject to harm to his
reputation as well as threats from other inmates. Id. 7, ¶
26.
Plaintiff seeks as relief from the Defendants' actions: (1) to
have the “S.R.G. Bloods” assessment expunged from his
records; and (2) compensation in the amount of $350.00
for each day that he was incorrectly designated as a
member of the Bloods. Id. 7.
*3 In bringing the instant action, Plaintiff filed a sworn
declaration in which he stated that: (1) he had not received
income from any source in the past twelve months; (2)
he did not have any money; and (3) he understood that
the Court “shall dismiss this case if I give a false answer
to any questions in this declaration.” (Decl. in Supp. Of
Request to Proceed in Forma Pauperis 1–2.) Plaintiff's
Inmate Transaction List reflects that Plaintiff received
third party mail and/or visitor deposits in the total amount
of $8,826.48 during the twelve months preceding his IFP
application, and as of the date of his IFP application,
Plaintiff's inmate account reflected a balance of $3,981.85.
See (Decl. in Supp. Of Defs.' Mot. to Dismiss (“Yi Decl.”)
Ex. A.).

II. DISCUSSION
A. Standard of Review 4
4

The Court notes that, prior to instituting a federal
cause of action, an inmate like Plaintiff must satisfy
the exhaustion requirements of the Prison Litigation
Reform Act of 1996 (“PLRA”). 42 U.S.C. § 1997e(a).
Plaintiff's Complaint alleges that he has exhausted his
administrative remedies, id. 6, ¶ 16, and Defendants
have not argued otherwise in their motion to dismiss.
Because neither party has placed the question of
administrative exhaustion before the Court, the
Court will not address this issue in its decision on the
instant motion.

Defendants have moved to dismiss the Complaint
pursuant to 28 U.S .C. § 1915(e)(2)(A), or in the
alternative, pursuant to Rule 12(b) (6) of the Federal Rules
of Civil Procedure.

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

2

Greene v. Garcia, Not Reported in F.Supp.2d (2013)
2013 WL 1455029

In assessing a motion to dismiss under Rule 12(b)(6), a
court accepts as true all non-conclusory factual allegations
and draws all reasonable inferences in the plaintiff's favor.
Goldstein, 516 F.3d at 56. Although a complaint need
not contain “ ‘detailed factual allegations' “ to survive
a motion to dismiss, there must be “sufficient factual
matter” which, if accepted as true, would “ ‘state a claim
to relief that is plausible on its face.’ “ Ashcroft v. Iqbal,
556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570,
127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “The plausibility
standard is not akin to a ‘probability requirement,’ but
it asks for more than a sheer possibility that a defendant
acted unlawfully.” Id. Accordingly, a pleading that merely
offers “labels and conclusions” or “a formalistic recitation
of the elements of a cause of action will not do.” Twombly,
550 U.S. at 555.
In the case of a pro se litigant, the Court reads the
pleadings leniently and construes them to raise “the
strongest arguments that they suggest.” McPherson v.
Coombe, 174 F.3d 276, 280 (2d Cir.1999) (citation
omitted). This guidance applies with particular force when
the plaintiff's civil rights are at issue. See McEachin
v. McGuinnis, 357 F.3d 197, 200 (2d Cir.2004); see
also Flaherty v. Lang, 199 F.3d 607, 612 (2d Cir.1999).
Nevertheless, to survive a Rule 12(b)(6) motion to dismiss,
a pro se plaintiff's factual allegations must be “enough
to raise a right to relief above the speculative level.”
Twombly, 550 U .S. at 555.

B. Analysis
1. 28 U.S.C. § 1915(e)(2)(A)
Defendants argue in the first instance that the Complaint
should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(A).
This statute outlines the fees and costs for litigants who
proceed before the court in forma pauperis (“IFP”), and
the subsection relied upon by Defendants provides that
“[n]otwithstanding any filing fee, or any portion thereof,
that may have been paid, the court shall dismiss the case at
any time if the court determines that—(A) the allegation
of poverty is untrue....” 28 U.S.C. § 1915(e)(2)(A). Relying
on numerous decisions in this district in which the district
court judge dismissed a complaint based on the plaintiff's
misrepresentations in his/her IFP application, Defendants
argue that Plaintiff's actions in the instant case warrant
dismissal because “[i]t is well-established that an allegation

of poverty is untrue when an IFP applicant conceals
a source of income in order to gain access to a court
without prepayment of fees.” Cuoco v. U.S. Bureau of
Prisons, 328 F.Supp.2d 463, 468 (S.D.N.Y.2004). See also
Williams v. Dep't of Corr., 11 Civ. 1515, 2011 U.S. Dist.
LEXIS 100803, at *9 (S.D.N.Y. Sept. 6, 2011) (“[P]laintiff
deliberately concealed his finances and misrepresented on
his IFP application to convey the impression that he could
not pay the filing fee. Accordingly, plaintiff's IFP status
must be revoked and the instant case dismissed.”) (internal
quotations omitted); Smith v. City of New York, 11 Civ.
418, 2011 U.S. Dist. LEXIS 86753, at *3 (S.D.N.Y. Aug.
5, 2011) (“Here, because Plaintiff offers no explanation
for omitting the $832.20 from his application, this Court
finds that the omission was intentional ... and, further,
that the allegation of poverty is untrue.”); and Rodriguez
v. Shiro, 10 Civ. 8019, 2011 U.S. Dist. LEXIS 77554,
at *3 (S.D.N.Y. July 18, 2011) (“Here, because Plaintiff
offers no explanation for omitting the $3,770.00 from
his application, this Court finds that the omission was
intentional ... and, further, that the allegation of poverty
is untrue.”).
*4 From its review of the inmate account statements
submitted by Defendants, whose authenticity Plaintiff
has not disputed, 5 it appears to the Court that Plaintiff
misrepresented his financial circumstances in his IFP
application. Although the Court agrees with other courts
in this district which have held that “the ability to proceed
IFP is a privilege provided for the benefit of indigent
persons” and that “the court system depends on the
honesty and forthrightness of applicants to ensure that
the privilege is not abused,” Cuoco, 328 F.Supp.2d at
467 (internal citations omitted), it also acknowledges that
“[t]wo features of the IFP system as it applies to prisoners
are relevant in considering whether plaintiff acted in bad
faith: (1) prisoners are responsible for the full filing fee
even if they are granted IFP status, and (2) prisoners
must authorize the facility to disclose their prison account
statements to the court.” White v. Schriro, No. 11 Civ.
5285, 2012 WL 1414450, at *4 (S.D.N.Y. March 7,
2012). Although Plaintiff's IFP form did misrepresent
his finances, it simultaneously authorized the New York
City Department of Corrections to: (1) disclose to the
Court the Plaintiff's prison account statement for the
past six months; and (2) pay the Court's filing fee from
available funds in his prison account. (Decl. in Supp. Of
Request to Proceed in Forma Pauperis 3.) In light of
these circumstances, although the Court looks extremely

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

3

Greene v. Garcia, Not Reported in F.Supp.2d (2013)
2013 WL 1455029

critically upon any statement made by a litigant which
is less than completely truthful, the Court finds that
Plaintiff's actions in the instant action did not undermine
the “purpose of the Court's In Forma Pauperis form”
which is “to determine if the plaintiff is sufficiently
indigent to entitle him to a waiver of the Court's filing
fee,” Morales v. City of N.Y., No. 10 Civ. 9534, 2011 WL
4448951, at * 1 (S.D.N.Y. Sept.23, 2011). Accordingly, the
Court finds that dismissal pursuant to 28 U.S.C. § 1915(e)
(2)(A) is unwarranted.
5

Plaintiff did not file a formal opposition to the instant
motion, but he did send a letter to Magistrate Judge
Dolinger in response to the Defendants' motion.
Defendants have provided the Court a copy of
this letter (attached), in which Plaintiff states that
he received $4,809.47 into his inmate account in
February 2012.

1. Plaintiff's Due Process Claims
The Complaint asserts as a first cause of action that
Defendants' erroneous S.R.G. designation “deprived
Plaintiff of his liberty without due process of
law.” (Compl.7, ¶ 27). The Court finds, however, that
the Complaint's allegations are insufficient to support
a claim for a violation of procedural due process. “To
present a due process claim, a plaintiff must establish
(1) that he possessed a liberty interest and (2) that the
defendants deprived him of that interest as a result of
insufficient process.” Ortiz v. McBride, 380 F.3d 649, 654
(2d Cir.2004) (internal quotations omitted). With respect
to the first requirement, that plaintiff possessed a liberty
interest, “[l]iberty interests protected by the Fourteenth
Amendment may arise from two sources-the Due Process
Clause itself and the laws of the States.” Hewitt v. Helms,
459 U.S. 460, 466, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983).
In the instant action, Plaintiff cannot prevail on his due
process claim because, as a matter of law, he does not
have a constitutionally protected interest in his S.R.G.
designation.
*5 It is well established that the administrative
classification of prisoners does not give rise to a
protectable liberty interest under the Due Process Clause
itself. See Hewitt, 459 U.S. at 468; and Lowrance v.
Achtyl, 20 F.3d 529, 535 (2d Cir.1994). Because prison
officials have “full discretion to control ... conditions of
confinement” such as a prisoner's security classification,
prisoners have no “legitimate statutory or constitutional

entitlement sufficient to invoke due process” in connection
with such conditions. Pugliese v. Nelson, 617 F.2d 916, 923
(2d Cir.1980). To the extent that Plaintiff asserts a liberty
interest created by the GRVC's own policies on inmate
S.R.G. designations, this Court agrees with other judges in
this district who have held that “[t]he laws and regulations
applicable to the classification of prisoners in the custody
of the New York City DOC provide substantial discretion
to the DOC and do not create a liberty interest.” Adams
v. Galleta, No. 96 Civ. 3750, 1999 WL 959368, at *5
(S.D.N.Y. Oct.19, 1999). See also Walker v. Shaw, No.08
Civ. 10043, 2010 U.S. Dist. LEXIS 62664, at *16–17
(S.D.N.Y. June 23, 2010) (“[N]either the Due Process
Clause nor the Minimum Standards gives rise to a liberty
interest that protects Plaintiff from security classification
(or mis-classification).”) The Court accordingly grants
Defendants' motion as to this cause of action.

2. Plaintiff's Claims of Deliberate Indifference
In addition to his due process claim, Plaintiff also
asserts causes of action for deliberate indifference to his
safety. Plaintiff alleges that both Captain Garcia and
Captain Van Williams acted with deliberate indifference
to his safety by placing him in a Crips housing area
in spite of his S.R.G. Bloods designation. (Compl.7, ¶¶
28–29.) Pre-trial detainees' § 1983 claims for deliberate
indifference to serious threats to their health and safety
are analyzed under the same standard used to address
Eighth Amendment claims, regardless of whether the
plaintiff has brought the claims under the Eighth or
Fourteenth Amendment. Caiozzo v. Koreman, 581 F.3d
63, 72 (2d Cir.2009). The Court accordingly engages in
an Eighth Amendment deliberate indifference analysis to
assess Plaintiff's claims, and following this analysis, it finds
that the Complaint sufficiently pleads this cause of action
against Defendants.
When assessing a claim that prison officials acted
with deliberate indifference in violation of the Eighth
Amendment, courts conduct a two-pronged analysis.
“First, the plaintiff must demonstrate that he is
incarcerated under conditions posing a substantial risk of
serious harm. Second, the plaintiff must demonstrate that
the defendant prison officials possessed sufficient culpable
intent.” Hayes v. N.Y. City Dept. of Corr., 84 F.3d 614,
620 (2d Cir.1996). The second prong of the analysis itself
involves a two-tier inquiry. “Specifically, a prison official
has sufficient culpable intent if he has knowledge that an
inmate faces a substantial risk of harm and he disregards

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

4

Greene v. Garcia, Not Reported in F.Supp.2d (2013)
2013 WL 1455029

that risk by failing to take reasonable measures to abate
the harm.” Id. Defendants argue in their pending motion
to dismiss that Plaintiff has failed to plead either: (1) that
he faced a substantial risk of harm; or (2) that Defendants
acted with a culpable mindset.
*6 With respect to whether the Complaint alleges that
Plaintiff faced a substantial risk of serious harm, the
Court finds Defendants' arguments wholly unavailing.
Defendants first argue that, because Plaintiff did not
request to be re-housed, the Court should discredit the
Complaint's allegation that Plaintiff's housing assignment
posed a substantial risk. This argument misconstrues
the source of Plaintiff's alleged concerns. The Complaint
asserts that Plaintiff faced a substantial risk of harm
because he was simultaneously: (1) designated S.R.G.
Bloods; and (2) housed in a Crips housing area. Due to
his heat-sensitivity, Plaintiff requested that the risk to
him be addressed by correcting his S.R.G. designation.
The Complaint makes very clear, however, that, to the
extent the Defendants failed to correct his S.R.G. Bloods
designation, Plaintiff consistently felt that his assignment
to a Crips housing area placed him at substantial
risk. (Compl.5–6, ¶¶ 8–9, 21.) The Defendants' second
argument on this point, that Plaintiff cannot demonstrate
a substantial risk of harm because he prevailed in
the sole physical altercation which resulted from his
incorrect designation, is similarly flawed. Even accepting
the Defendants' position that Plaintiff was not injured in
the altercation, that Plaintiff happened to escape injury
when the attack that he feared ultimately occurred does
not undermine the Complaint's allegations that, due to
the history of extreme violence between Bloods and Crips
within the GRVC, Defendants' actions placed Plaintiff
in a position of great personal risk. See Walker, 2010
U.S. Dist. LEXIS 62664, at *22–23 (“Plaintiff would meet
both requirements of a deliberate indifference claim if he
alleged that identified, responsible prison officials failed
to promptly relocate him from the Crips cell block after
he was classified as a Blood.”) The Court accordingly
finds that the Amended Complaint adequately pleads that
Plaintiff was subject to conditions that posed a substantial
risk of serious harm.
Defendants' second argument in support of their motion
to dismiss Plaintiff's claims of deliberate indifference is
that the Complaint fails to allege that either defendant
acted with the requisite culpable mindset. Specifically,
Defendants argue that the Complaint fails to allege that:

(1) Defendants were aware of specific threats to Plaintiff;
(2) Plaintiff's S.R.G. designation was known by other
inmates; (3) Defendants were aware that Plaintiff's S.R.G.
designation was known by other inmates; and (4) Plaintiff
complained to either defendant of his subsequent rehousing in a Crips area.
Having reviewed the allegations in the Complaint, the
Court disagrees that Plaintiff has failed to allege sufficient
facts to support his claims of deliberate indifference. The
Complaint alleges that there was an extensive history
of violence between the Bloods and Crips and that
there were in fact policies in place to respond to this
history. (Compl.5, ¶¶ 13–15.) The Complaint further
alleges that Defendants were each informed by Plaintiff
that his designation and housing assignment were together
in violation of this policy but that Defendants each
consciously disregarded this information. Id. 5–6, ¶¶ 9–10,
19–22. “[C]onstru[ing] the complaint liberally, accepting
all factual allegations in the complaint as true, and
drawing all reasonable inferences in the plaintiff's favor,”
Looney v. Black, 702 F.3d 701, 719–20 (2d Cir.2012), the
Court finds that the Complaint adequately pleads that
Defendants acted with the requisite culpable mindset to
support a claim of deliberate indifference.

3. 42 U.S.C. § 1997e(e)
*7 Defendants' final argument in support of their motion
to dismiss is that the Complaint must be dismissed because
Plaintiff is not entitled to any of the relief that he seeks in
this action. In support of their position, Defendants cite
to Section 1997e(e) of the PLRA, which states 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.” Defendants argue
that, because the Complaint does not specify a physical
injury sustained by Plaintiff, Plaintiff's Complaint must
be dismissed because Section 1997e(e) bars Plaintiff from
recovery.
As an initial matter, the Court notes that Plaintiff does
not exclusively seek compensatory damages. In addition
to compensation in the form of $350 for each day that
he was incorrectly designated, Plaintiff also seeks to
have the S.R.G. Bloods designation expunged from his
record and classification. See (Compl.7.) Therefore, given
that the Court has found that the Complaint adequately
pleads a claim for deliberate indifference, dismissal of

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

5

Greene v. Garcia, Not Reported in F.Supp.2d (2013)
2013 WL 1455029

the entire action pursuant to Section 1997e(e) would be
inappropriate. See Thompson v. Carter, 284 F.3d 411, 418
(2d Cir.) (“Both in its text and in its caption, Section
1997e(e) purports only to limit recovery for emotional
and mental injury, not entire lawsuits. Therefore, it does
not prevent Thompson from vindicating his constitutional
right to be free of cruel and unusual treatment ... without
due process by injunctive and declaratory relief.”)
Furthermore, although Section 1997e (e) does not itself
define “physical injury,” to the extent that “the developing
case law in this area reflects the view that” the “predicate
injury” must be “consistent with Eighth Amendment
jurisprudence,” Warren v. Westchester Cnty. Jail, 106
F.Supp.2d 559, 570 (S.D.N.Y.2000), having found that
the Complaint adequately pleads a substantial risk of
serious harm, the Court finds that it satisfies the physical
injury requirement of Section 1997e(e) as well.

III. CONCLUSION
For the foregoing reasons, the Court grants in part and
denies in part Defendants' motion to dismiss [dkt. no.
12]. The Complaint's claims for violations of Plaintiff's
procedural due process are dismissed, but its claims for
deliberate indifference survive.
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3),
that any appeal from this Order would not be taken
in good faith, and therefore in forma pauperis status
is denied for the purpose of an appeal. See Coppedge
v. United States, 369 U.S. 438, 444–45, 82 S.Ct. 917, 8
L.Ed.2d 21 (1962).

SO ORDERED:
All Citations
Not Reported in F.Supp.2d, 2013 WL 1455029

End of Document

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

6

McNair v. Sgt. Jones, Not Reported in F.Supp.2d (2002)
2002 WL 31082948

regarding these claims. 42 U.S.C.A. §§ 1983,
1997e(a); 7 N.Y.C.R.R. §701.
KeyCite Yellow Flag - Negative Treatment
Declined to Follow by Farid v. Ellen, S.D.N.Y., December 23, 2003

9 Cases that cite this headnote

2002 WL 31082948
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.

[2]

State prisoner's verbal complaints of
confinement conditions, letters to legal aid
organization for indigent litigants, and letters
to offices for prison superintendent and
inspector general were not sufficient to
satisfy requirement of Prison Litigation
Reform Act (PLRA) that he exhaust his
administrative remedies before bringing §
1983 action; prisoner was required to
go through prison administrative process
requiring written grievances and setting forth
procedure for such grievances which did not
allow submission of letters directly to prison
management. 42 U.S.C.A. §§ 1983, 1997e(a); 7
N.Y.C.R.R. §701.

Larry McNAIR, Plaintiff,
v.
SGT. JONES, C.O. Shepherd, C.O. Zoufaly,
Registered Nurse Matthews, C.O. K. Koenig,
Sick Call Nurse for Shu, Dr. Supple, Capt.
Lowry, Superintendent Strack, Jose Pico, Nurse
Daly and Lieutenant A. Caves, Defendants.
No. 01 Civ. 3253(RCC)(GWG).
|
Sept. 18, 2002.
State prisoner brought § 1983 action against prison
officials alleging claims such as excessive force, unsanitary
conditions, conspiracy, and denial of medical needs.
Prison officials moved to dismiss. The District Court,
Gorenstein, J., recommended that: (1) prisoner failed to
exhaust his administrative remedies pursuant to Prison
Litigation Reform Act (PLRA) regarding certain claims
or justify such failure, and (2) allegations that conduct of
prison disciplinary hearings was procedurally flawed and
that inappropriate penalties were imposed did not state a
claim under § 1983.

12 Cases that cite this headnote
[3]

West Headnotes (5)
Civil Rights
Criminal Law Enforcement; Prisons
State prisoner did not file grievance through
state administrative prison grievance process
regarding his § 1983 claims of excessive
force, unsanitary conditions, conspiracy, and
denial of medical needs, and, thus, failed to
exhaust his administrative remedies pursuant
to Prison Litigation Reform Act (PLRA)

Civil Rights
Criminal Law Enforcement; Prisons
State prisoner's general allegations of
conspiracy by prison officials, and his claims
that he did not file prison grievance due
to pending disciplinary charges against him
because he did not trust prison officers
to file charges and because such grievance
would be futile, did not excuse prisoner's
failure to file prison grievance regarding
disciplinary charges before bringing § 1983
action, for purposes of showing exhaustion
of administrative remedies under Prison
Litigation Reform Act (PLRA). 42 U.S.C.A.
§§ 1983, 1997e(a); 7 N.Y.C.R.R. §701.

Report and recommendation issued.

[1]

Civil Rights
Criminal Law Enforcement; Prisons

6 Cases that cite this headnote
[4]

Civil Rights
Administrative Remedies in General
Exhaustion of administrative remedies after §
1983 complaint is filed will not save case from

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

1

McNair v. Sgt. Jones, Not Reported in F.Supp.2d (2002)
2002 WL 31082948

dismissal for failure to exhaust administrative
remedies. 42 U.S.C.A. §§ 1983, 1997e(a).
5 Cases that cite this headnote
[5]

Civil Rights
Discipline and Classification; Grievances
Prison disciplinary proceeding and penalties
imposed on state prisoner, such as loss of good
time credit, were not invalidated on appeal,
and thus prisoner's claims that conduct of
hearings was procedurally flawed and that
inappropriate penalties were imposed did not
state a claim under § 1983. 42 U.S.C.A. §1983.
2 Cases that cite this headnote

A. Allegations of Excessive Force
At approximately 5:50 p.m. on June 7, 1999, while McNair
was proceeding to his evening program at the Fishkill
prison, Sergeant Jones directed McNair into the prison
yard for a random pat frisk. Complaint, dated March
1, 2001 (“Complaint”), at § IV; Memorandum from
E. Shepherd, dated June 7, 1999 (“Shepherd Report”)
(reproduced as Ex. D to Exhibits “A to D” in Support
of Plaintiff's Statement Pursuant to Local Civil Rule
56.1, dated April 15, 2002), at 1. 1 Officer Shepherd
instructed McNair to remove everything from his pockets
and to stand against the wall so that the search could be
performed. Shepherd Report at 1. McNair cooperated,
first handing the officers his books, cigarettes and wallet,
and then turning to place his hands on the wall. Complaint
at § IV; Shepherd Report at 1.
1

REPORT AND RECOMMENDATION
GABRIEL W. GORENSTEIN, Magistrate Judge.
*1 Larry McNair, the pro se plaintiff, brings this action
pursuant to 42 U.S.C. § 1983, alleging that correction
officers used excessive force against him during a pat
frisk that occurred on June 7, 1999 while McNair
was imprisoned in the Fishkill Correctional Facility;
that medical personnel were deliberately indifferent to
his serious medical needs; that he was forced to live
in unsanitary conditions while confined as part of a
“drug watch”; that all of the defendants were involved
in a conspiracy to cover up the officers' malicious
conduct; and that certain procedural defects occurred
during his disciplinary hearing. The defendants have
moved to dismiss pursuant to Fed.R.Civ.P. 12(b) or
in the alternative for summary judgment pursuant
to Fed.R.Civ.P. 56. For the following reasons, the
defendants' motions should be granted.

I. STATEMENT OF FACTS
The details of the incident underlying the complaint are
not directly relevant to the grounds for dismissal that
are the subject of this Report and Recommendation.
Nonetheless, they are recounted here to provide some
background for the dispute.

A number of documents discussed herein, including
the Rule 56.1 Statement cited above, were not
filed with the Clerk at the time of their service
or submission to Chambers. The documents consist
of: (1) the defendants' notice of motion and
memorandum of law dated August 6, 2001; (2) the
exhibits, identified as “A to U,” that were submitted
as part of McNair's opposition papers to this motion,
dated September 5, 2001; and (3) McNair's papers
submitted in opposition to the defendants' February
2002 motion to dismiss or for summary judgment,
consisting of an affirmation, memorandum of law,
statement under Rule 56.1, a declaration and two sets
of exhibits, all of which are dated April 15, 2002.
These documents are now being docketed along with
this Report and Recommendation.

According to a misbehavior report filed by Officer
Shepherd, during the frisk Shepherd discovered a rolled
up piece of toilet paper containing a small white packet
of paper in McNair's wallet. At this point, according
to the report, McNair began pushing Shepherd's hands,
knocking the white packet to the ground. McNair
immediately bent down, picked up the white packet and
put it in his mouth. A struggle ensued, during which
Shepherd lost his balance and fell to the ground. Shepherd
ordered McNair to spit out the packet but McNair
refused. Shepherd then placed his hands under McNair's
chin in an attempt to force McNair to spit out the item.
McNair, however, responded “I swallowed it.” Officers
Shepherd and Zoufaly then placed restraints on McNair,
with Shepherd controlling McNair's left arm and Zoufaly
controlling his right. Shepherd Report at 1–2.

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

2

McNair v. Sgt. Jones, Not Reported in F.Supp.2d (2002)
2002 WL 31082948

According to McNair's version of events, however,
Shepherd never discovered a white packet of paper in
McNair's wallet. Rather, after McNair placed his hands
against the wall, Shepherd asked McNair about a bulge
in his left shoe. McNair, who was injured in a basketball
game the night before, reached down to his ankle,
revealing an ace bandage protecting his Achilles tendon.
Shepherd reacted to this gesture by attacking McNair—
choking him and knocking him to the ground. Sergeant
Jones then instructed Zoufaly to grab McNair's right arm
and to break it if necessary. McNair claims that Shepherd
held him on the ground in a choke hold as Zoufaly twisted
his arm and wrist. When Sergeant Jones asked Shepherd
what happened, Shepherd replied that he thought McNair
had swallowed something. Complaint at § IV.
*2 Officer Jones and another unnamed officer then
escorted McNair through the facility, toward the Special
Housing Unit. McNair claims that the officers took a
route that placed the men out of view of the general
population. According to McNair, during this trip
Sergeant Jones threatened to harm him if he reported any
injuries to the medical staff. Complaint at § IV.

B. Medical Examination and Drug Watch
Upon arrival at the Special Housing Unit, Nurse
Matthews examined McNair. Complaint at § IV.
Matthews asserts that, although McNair told Matthews
that he had a cut on his face, Matthews was not able
to find any damage. Defendant Matthews' Declaration
in Support of Defendants' Motion to Dismiss And/
Or for Summary Judgment, dated February 21, 2002
(“Matthews Decl.”) (annexed to Notice of Motion to
Dismiss And/Or for Summary Judgment, filed February
22, 2002 (“Feb.Mot.”) (Docket  22)), at ¶ 7. Nurse
Matthews did notice that McNair's knuckle was swollen
but states that McNair retained a full range of motion
in his hand. Id. McNair denies this, claiming that he was
unable to clench his hand into a fist. Complaint at § IV.
During the examination, Matthews states that McNair
also drew attention to his ankle, which had been injured
the previous night. Matthews Decl. at ¶ 7. Matthews'
observations, however, revealed that McNair did not have
difficulty walking. Id.
McNair asserts that he also discussed his history of high
blood pressure with Nurse Matthews but was not placed
on a low cholesterol diet. Complaint at § IV. McNair

alleges that Dr. Supple, a physician who had examined
McNair on three prior occasions for problems unrelated
to the June 7 incident, should have either placed Nurse
Matthews on notice of his condition or prescribed a
remedy himself. See Affirmation in Opposition, dated
September 5, 2001, (“McNair Aff.”) (filed December 4,
2001, Docket  20), at ¶¶ 2–3. Dr. Supple states that upon
review of McNair's medical records, McNair did have
high cholesterol, but his failure to prescribe special dietary
provisions did not affect McNair negatively. Defendant
Dr. Supple's Declaration in Support of Defendants'
Motion to Dismiss And/Or for Summary Judgment, dated
February 21, 2002, at ¶ 7. After the exam, McNair was not
given any medication nor was he deemed to require any
further medical attention. Matthews Decl. at ¶ 10.
At the conclusion of his examination, Officer Koenig took
pictures of McNair as required by Directive No. 4944. See
Photographs Taken by Officer K. Koenig After Use of
Force and Directive 4944 (reproduced as Ex. O to Exhibits
“A to U” in Support of Affirmation in Opposition, dated
September 5, 2001 (“9/5/2001 Exs.”)). McNair, however,
claims that Officer Koenig refused to take pictures of his
ankle and right hand. Complaint at § IV. McNair was then
placed on a drug watch in the Special Housing Unit. Id.
The purpose of such a watch is to monitor the progress of
contraband suspected to have been ingested by the inmate.
Declaration of Robert Ercole in Support of Defendants'
Motion to Dismiss And/Or Summary Judgment, dated
February 21, 2002 (“Ercole Decl.”) (annexed to Feb.
Mot.), at ¶ 6. Consequently, McNair was placed in a “dry
cell” in which the water supply was turned off to enable
the officers to monitor his bowel movements. Ercole Decl.
at ¶ 7. McNair's cell was also lacking soap, a towel,
toothpaste and a toothbrush. Complaint at § IV. However,
as required by DOCS Directive No. 4910, such items were
to have been provided to McNair when he was allowed
out of his cell to wash himself. Ercole Decl. at ¶¶ 6–8.
Though inmates are permitted to have bed linens in their
cells, Ercole Decl. at ¶ 7, McNair alleges that his mattress
remained undressed. Complaint at § IV.
*3 On the morning of June 8, 1999, Nurse Daly walked
through the Special Housing Unit. Though she refused to
stop at his cell, as she walked by, McNair told her that his
ankle was causing him pain. According to McNair, Daly
agreed to send him something to relieve his discomfort.
However, no medication was ever sent. Complaint at §

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

3

McNair v. Sgt. Jones, Not Reported in F.Supp.2d (2002)
2002 WL 31082948

IV; Amended Complaint, dated July 2001 (“Amended
Complaint”), at ¶ 2.

package, commissary and phone call privileges. Disc. Hg.
Transcript at 1.

McNair remained on the drug watch for a total of 48
hours. Complaint at § IV. During this time, no contraband
was found. A urinalysis test designed to recognize the
existence of drugs also came back negative. Id.

McNair immediately sought to appeal this finding. On
July 2, 1999, McNair sent Superintendent Strack the
first of two letters requesting discretionary review of his
disciplinary hearing. Letter to Wayne Strack, dated July 2,
1999 (reproduced as Ex. I to Exhibits “A to M” in Support
of Plaintiff's Affirmation in Opposition to Defendant's
Motion to Dismiss And/Or Summary Judgment, dated
April 15, 2002 (“4/15/2002 A to M Exs.”)). In his first
letter, McNair stated that Officer Pico denied him his right
to call a witness during the hearing. Id. That same day,
William Mazzuca, on Strack's behalf, wrote to McNair,
refusing to alter the results of the disciplinary hearing.
Letter to McNair, dated July 2, 1999 (reproduced as Ex.
K to 4/15/2002 A to M Exs.). On July 3, 1999, McNair
sent a second letter to Superintendent Strack, this time
informing him that he may be held personally liable if he
failed to remedy the alleged violation of McNair's right to
call witnesses. Letter to Wayne Strack, dated July 3, 1999
(reproduced as Ex. J to 4/15/2002 A to M Exs.).

McNair received no further medical treatment during his
stay at the Fishkill Facility. Plaintiff's Statement Pursuant
to Local Civil Rule 56.1, dated April 15, 2002 (“McNair
56.1”), at ¶ 24. McNair alleges that as a result of the
incident, the tendon in his right hand was torn and his left
ankle was injured. Complaint at § IV–A. He also alleges
that he needed physical therapy on his right hand and
surgery, resulting in diminished usage of his hand. Id.
On July 6, 1999, McNair was transferred to Southport
Correctional Facility. McNair 56.1 at ¶ 24. At Southport,
McNair was given a health screening, Ambulatory Health
Record, dated July 6, 1999 (reproduced as Ex. Q to
9/5/2001 Exs.), at 1, after which he was placed on a low
cholesterol, low fat diet. Therapeutic Diet Order Form,
dated July 6, 1999 (reproduced as Ex. Q to 9/5/2001 Exs.),
at 2. In July 2000, a medical report showed that the
tendon in the long finger of McNair's right hand had
been torn. Surgical Pathology Report, dated July 11, 2000
(reproduced as Ex. T to 9/5/2001 Exs.).

C. The Disciplinary Charge and Appeal
On June 7, 1999, the day of the pat frisk, Shepherd filed
an Inmate Misbehavior Report in which he described
his version of events. Inmate Misbehavior Report, dated
June 7, 1999 (reproduced as Ex. E to Strack Declaration
in Support of Defendants' Motion to Dismiss And/Or
Summary Judgment, dated February 21, 2002 (“Strack
Decl.”) (annexed to Feb. Mot.)). As a result, a disciplinary
hearing was held before officer Jose Pico on June 18,
1999 in which McNair was charged with refusing a direct
order, assaulting staff, and refusing to be searched or
frisked. Inmate Disciplinary History (reproduced as Ex.
P to 9/5/2001 Exs.). In support of his version of events,
McNair presented a witness. Excerpt of Transcript from
Disciplinary Hearing (“Disc.Hg.Transcript”) (reproduced
as Ex. P to 9/5/2001 Exs.), at 2. Nevertheless, Officer
Pico found McNair guilty of all charges and sentenced
him to loss of twelve months “good time” credits and
365 days in the Special Housing Unit, with a loss of

*4 McNair also claims that he sent a letter to
Superintendent Strack on June 16, 1999 in which he
complained about the lack of medical attention he
was receiving. McNair 56.1 at ¶ 20. Superintendent
William Mazzuca apparently received this letter, although
he asserted in January 2001 that he no longer had
a copy. See Mazzuca Sworn Affidavit, dated January
26, 2001 (reproduced as Ex. G to 9/5/2001 Exs.), at
¶¶ 215, 220. Confusingly, defendants have submitted a
copy of a letter dated June 16, 1999, from McNair to
Superintendent Strack, which does not mention McNair's
medical status or his disciplinary hearing but relates only
to a missing package of cigarettes. Letter dated June 16,
1999 (reproduced as Ex. B to Hartofilis Declaration in
Support of Defendant's Motion for Summary Judgment,
dated February 22, 2002).
On September 1, 1999, McNair formally appealed the
ruling in the disciplinary hearing. Inmate Disciplinary
History (reproduced as Ex. P to 9/5/2001 Exs.). His
appeal was heard by Donald Selsky, the Director of the
Special Housing and Inmate Disciplinary Programs, who
affirmed Hearing Officer Pico's order. Id. McNair sent
out another letter appealing the ruling on October 19,
1999. See Response from Donald Selsky, dated October
28, 1999 (“Selsky Response”) (reproduced as Ex. C to

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

4

McNair v. Sgt. Jones, Not Reported in F.Supp.2d (2002)
2002 WL 31082948

Affirmation in Opposition Exhibits “A to P”, Docket
 41, dated June 11, 2002 (“6/11/2002 Exs.”)). Selsky
and Lucien J. Leclaire, Jr., Deputy Commissioner of the
Department of Correctional Services, each received copies
of the letter. Both declined to reconsider Pico's ruling
and refused to reduce McNair's confinement time. See
Selsky Response; Letter from Lucien J. Leclaire, Jr., dated
November 8, 1999 (reproduced as Ex. D to 6/11/2002
Exs.).
McNair then filed a petition with the Supreme Court of
the State of New York, Dutchess County, challenging
his disciplinary hearing. See Order to Show Cause, dated
November 29, 1999 (reproduced as Ex. A to 6/11/2002
Exs.). On August 11, 2000, that court entered a judgment
against McNair. Cf. Notice of Appeal for Article 78, dated
August 23, 2000 (reproduced as Ex. E to 6/11/2002 Exs.).
McNair then filed a notice of appeal on August 23, 2000.
Id. On May 30, 2001, the Appellate Division, Second
Department, dismissed the appeal because it had not been
perfected within the time limit specified in 22 N.Y.C.R.R.
§ 670.8(e). Decision & Order on Motion, dated May 30,
2001 (reproduced as Ex. O to 6/11/2002 Exs.), at 2–3.

D. Complaint to Inspector General
In December 1999, McNair made a complaint to the
Inspector General's Office. See Inspector General's Office
Investigative Report, dated May 25, 2000 (“Investigative
Report”) (annexed to Memorandum of Law in
Opposition of Defendant's Motion to Dismiss And/Or
Summary Judgment and Supplemental Brief, dated April
15, 2002 (“McNair 4/15/2002 Mem.”)). On December
15, 1999, Officer Todd of the Inspector General's Office
interviewed McNair about his complaints. Supplemental
Brief and Memorandum of Law in Decision of Interest,
dated June 11, 2002 (Docket  40) (“McNair Supp.
Mem.”), at 2. In May 2000, a second officer, Investigator
Holland took over the investigation. Id. This officer,
Investigator Holland, found McNair's claims to be
unsubstantiated and recommended that the case be closed.
See Investigative Report.

E. The Present Action
*5 On April 19, 2001, McNair filed the complaint
in this matter pursuant to 42 U.S.C. § 1983 against
defendants Jones, Shepherd, Zoufaly, Matthews, Koenig,
an unidentified “sick call nurse,” Dr. Supple, Captain
Lowry and Superintendent Strack. The complaint,

brought under 42 U.S.C. § 1983, describes the alleged
attack, the resulting injuries, the denial of medical care and
unsanitary conditions. McNair seeks monetary damages
in the amount of $5 million. Complaint at § V. On July
25, 2001, McNair filed an Amended Complaint which
did not repeat any of the allegations in the original
complaint but instead stated that it was being filed to
add three new defendants: Jose Pico, Nurse T. Daly and
a “Watch Commander.” Amended Complaint at ¶¶ 1–3.
McNair alleges that Pico, as Hearing Officer of McNair's
disciplinary hearing, imposed improper penalties, denied
“witnesses” and “adequate assistance,” and was arbitrary
and capricious. Id. at ¶ 1. McNair alleges that Daly
failed to provide adequate medical care. Id. at ¶ 2. The
“Watch Commander” is alleged to have “approved the
photographs[ ] that were taken on June 7, 1999, with
knowledge that these photographs were not in accordance
with the ‘Use of Force’ Directive.” Id. at ¶ 3.
On August 6, 2001, the defendants submitted a motion to
dismiss the complaint arguing that the complaint should
be dismissed because of McNair's failure to exhaust his
administrative remedies and because the complaint did
not state a claim for the various constitutional violations
alleged. McNair thereafter submitted an “Affirmation
in Opposition” dated September 5, 2001, along with
other papers, that provided additional detail about
his allegations—particularly the allegations regarding
his improper medical treatment. See McNair Aff.;
Memorandum of Law dated September 5, 2001, filed
December 4, 2001 (Docket  21). Upon McNair's
request, made by letter dated November 3, 2001, the
Court construed this affirmation as supplementing his
complaint. See generally Order, dated October 25, 2001
(Docket  18).
On February 22, 2002, defendants Shepherd, Matthews,
Supple and Strack moved to dismiss McNair's complaint,
as amended, pursuant to Fed.R.Civ.P. 12(b)(1), 12(b)
(6) and/or 56(c). See Feb. Mot. They argued that the
complaint should be dismissed for a number of reasons:
McNair had not exhausted his administrative remedies;
he had failed to state a “deliberate indifference” claim
with respect to his medical needs; there was no personal
involvement by certain of the defendants; the defendants
were entitled to qualified immunity; McNair had failed
to state a claim regarding the allegation that a false
misbehavior report had been filed; and he had failed
to state a claim for conspiracy. On March 28, 2002,

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

5

McNair v. Sgt. Jones, Not Reported in F.Supp.2d (2002)
2002 WL 31082948

these same defendants filed a supplemental memorandum
(Docket  30) to argue the effect of the Supreme Court's
decision the previous month in Porter v. Nussle, 534
U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). By
memorandum endorsement dated, April 2, 2002 (Docket
 31), the defendants' motion was deemed to include
defendants Pico, Daly, Jones, and the Watch Commander
(who had since been identified as A. Caves). The plaintiff
submitted opposition papers to this motion, which are
all dated April 15, 2002, and included an affirmation, a
statement under Local Civil Rule 56.1, a memorandum of
law, and exhibits identified as “A to M.” On May 9, 2002,
the defendants filed a reply memorandum of law (Docket
 34).
*6 On the same date that the defendants filed the
reply brief on the pending motion, defendants Pico and
Strack again moved to dismiss McNair's complaint—this
time citing Fed.R.Civ.P. 12(b)(1) and (6). See Notice of
Motion, dated May 9, 2002 (Docket  32). While Pico
and Strack had previously made (or, in Pico's case, been
deemed to have made) the motion filed February 22, 2002
to dismiss or in the alternative for summary judgment,
Pico and Strack filed the 12(b)(1) and (6) motion in
order to make specific arguments regarding McNair's
claims that the disciplinary hearing had not been properly
conducted. See Memorandum of Law In Support of Jose
Pico and Superintendent Strack's Motion to Dismiss the
Amended Complaint, filed May 9, 2002 (Docket  33),
at 1 n. 1. McNair opposed this new motion with an
affirmation, exhibits and a brief, all of which are dated
June 11, 2002 (Docket  's 39, 40 and 41). The defendants
filed a reply brief on July 26, 2002 (Docket  42).

II. Discussion
A. Summary Judgment Standard
A district court may grant summary judgment only if
“the pleadings, depositions, answers to interrogatories,
and admissions on file, together with affidavits, if any,
show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment
as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986); New York Stock Exchange, Inc. v.
New York, New York Hotel LLC, 293 F.3d 550, 554 (2d
Cir.2002). A genuine issue is one that “may reasonably
be resolved in favor of either party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d

202 (1986); McPherson v. Coombe, 174 F.3d 276, 280
(2d Cir.1999). A material issue is a “dispute[ ] over facts
that might affect the outcome of the suit under the
governing law.” Anderson, 477 U.S. at 248. Thus, “ ‘[a]
reasonably disputed, legally essential issue is both genuine
and material’ “ and precludes a finding of summary
judgment. McPherson, 174 F.3d at 280 (quoting Graham
v. Henderson, 89 F.3d 75, 79 (2d Cir.1996)).
When determining whether a genuine issue of material
fact exists, courts must resolve all ambiguities and draw
all factual inferences in favor of the non-moving party.
McPherson, 174 F.3d at 280. Moreover, the pleadings of
a pro se plaintiff must be read liberally and interpreted
“to raise the strongest arguments that they suggest.”
Id. (citation omitted). Nonetheless, “mere speculation
and conjecture is insufficient to preclude the granting of
the motion.” Harlen Assocs. v. Incorporated Village of
Mineola, 273 F.3d 494, 499 (2d Cir.2001).

B. Exhaustion of Administrative Remedies
Under the Prison Litigation Reform Act, 110 Stat. 1321–
73, as amended, 42 U.S.C. § 1997e(a), “[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.” This means the prisoner “must pursue
his challenge to the conditions in question through the
highest level of administrative review prior to filing suit.”
Flanagan v.. Maly, 2002 WL 122921, at *2 (S.D.N.Y.
Jan.29, 2002); see also Porter v. Nussle, 534 U.S. 516, ––––,
122 S.Ct. 983, 988, 152 L.Ed.2d 12 (2002) (“All ‘available’
remedies must now be exhausted; those remedies need not
meet federal standards, nor must they be ‘plain, speedy
and effective.’ ”) (citations omitted). The Supreme Court
has clarified that “PLRA's exhaustion requirement applies
to all inmate suits about prison life, whether they involve
general circumstances or particular episodes, and whether
they allege excessive force or some other wrong.” Porter,
122 S.Ct. at 992. 2
2

Even though McNair filed this action before Porter
v. Nussle was decided, “the broad exhaustion
requirement announced in Nussle applies with full
force” to litigants in such a situation. Espinal v. Goord,
2002 WL 1585549, at *2 n. 3 (S.D.N.Y. July 17, 2002).
See generally Harper v. Virginia Dep't of Taxation, 509

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

6

McNair v. Sgt. Jones, Not Reported in F.Supp.2d (2002)
2002 WL 31082948
U.S. 86, 97, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993)
(“When [the Supreme] Court applies a rule of federal
law to the parties before it, that rule is the controlling
interpretation of federal law and must be given full
retroactive effect in all cases still open on direct review
and as to all events, regardless of whether such events
predate or postdate [the] announcement of the rule.”).

*7 7 N.Y.C.R.R. § 701 outlines the Inmate Grievance
Program under which New York prison inmates may file
grievances regarding prison life. First, the inmate must
file a complaint with the Inmate Grievance Resolution
Committee (“IGRC”). 7 N.Y.C.R.R. § 701.7(a). Next,
after receiving a response from the IGRC, the inmate
may appeal to the Superintendent of the facility. Id.
at § 701.7(b). Finally, after receiving a response from
the Superintendent, the prisoner can seek review of
the Superintendent's decision with the Central Office
Review Committee (“CORC”). Id. at § 701.7(c). See, e.g.,
Anderson v. Pinto, 2002 WL 1585907, at *1 (S.D.N.Y. July
17, 2002). In New York, a “prisoner has not exhausted
his administrative remedies until he goes through all
three levels of the grievance procedure.” Hemphill v. New
York, 198 F.Supp.2d 546, 548 (S.D.N.Y.2002). As was
noted in Flanagan, “New York permits inmates to file
internal grievances as to virtually any issue affecting their
confinement.” 2002 WL 122921, at *1. Exhaustion is
not accomplished by an inmate's appeal of a disciplinary
hearing decision brought against the inmate. See, e.g .,
Benjamin v. Goord, 2002 WL 1586880, at *2 (S.D.N.Y.
July 17, 2002) (citing Cherry v. Selsky, 2000 WL 943436,
at *7 (S.D.N.Y. July 7, 2000)).
[1] McNair's claims regarding the assault and subsequent
denial of medical care were grievable under the prison
regulations. See 7 N.Y.C.R.R. § 701.2(a) (permitting
grievances for any “complaint about the substance or
application of any written or unwritten policy, regulation,
procedure or rule of the Department of Correctional
Services or any of its program units, or the lack of a
policy, regulation, procedure or rule”); 7 N.Y.C.R.R. §
701.11 (describing special expedited grievance process for
“[e]mployee misconduct meant to ... harm an inmate”);
see also Espinal v. Goord, 2002 WL 1585549, at *2
(S.D.N.Y. July 17, 2002) (“It is undisputed that ‘[a] claim
of excessive force is a proper subject of a grievance inmates
may file through [DOCS's] Inmate Grievance Program.’
”) (citation omitted); Cruz v. Jordan, 80 F.Supp.2d
109, 111–12 (S.D.N.Y.1999) (“New York State provides
administrative remedies that are available to prevent, stop

and mitigate deliberate indifference to the medical needs
of prisoners.”); Thomas G. Eagen's Affidavit in Support
of Defendant's Motion to Dismiss, dated August 2, 2001
(“Eagen Aff.) (annexed to Feb. Mot.), at ¶ 4.
[2] In the face of defendants' assertions that McNair's
complaint must be dismissed for his failure to
exhaust administrative remedies, McNair argues that he
accomplished exhaustion through verbal complaints and
by writing to the Legal Aid Society, the Superintendent's
office, and the Inspector General's Office. McNair
4/15/2002 Mem. at 2.
Making a verbal complaint, however, does not satisfy
the exhaustion requirement because the administrative
grievance process permits only written grievances. See
Flanagan, 2002 WL 122921, at *2. A complaint made
to the Legal Aid Society is likewise not permitted by
the administrative grievance process. McNair's letters
to the Superintendent could not satisfy the exhaustion
requirement for two reasons. First, the only letters in the
record complain of procedural defects in the disciplinary
hearing and do not assert any of his other claims. See
Exhibits “A to M”, dated April 15, 2002, Exs. I, J.
Second, forgoing the step of filing a claim with the IGRC
by submitting letters directly to the superintendent does
not satisfy the exhaustion requirement. See, e.g., Byas
v. New York, 2002 WL 1586963, at *2 (S.D.N.Y. July
17, 2002) (“Permitting a plaintiff to bypass the codified
grievance procedure by sending letters directly to the
facility's superintendent would undermine the efficiency
and the effectiveness that the prison grievance program is
intended to achieve.”); Nunez v. Goord, 2002 WL 1162905,
at *1 (S.D.N.Y. June 3, 2002). 3
3

Although the Inmate Grievance Program does allow
for an expedited procedure for allegations of inmate
harassment by prison employees, which in some cases
allows for review by the IGRC to be bypassed, the
inmate must still file a grievance with the employee's
supervisor before the superintendent can review the
allegations to determine if the grievance presents
a bona fide harassment issue. See 7 N.Y.C.R.R. §
701.11(b); Hemphill v. New York, 198 F.Supp.2d 546,
549 (S.D.N.Y.2002) (describing expedited grievance
procedure). The regulations provide that if the
superintendent fails to respond, the prisoner may
appeal the grievance to the CORC. 7 N.Y.C.R.R. §
701.11(b)(6).

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

7

McNair v. Sgt. Jones, Not Reported in F.Supp.2d (2002)
2002 WL 31082948

*8 Finally, although McNair eventually made a
complaint to the Inspector General, that action does not
satisfy the exhaustion requirement. Grey v. Sparhawk,
2000 WL 815916, at *2 (S.D.N.Y. June 23, 2000)
(“Any complaint [plaintiff] may have made directly to
the Inspector General's office does not serve to excuse
plaintiff from adhering to the available administrative
procedures. To allow plaintiff to bypass those procedures
would obviate the purpose for which the procedures were
enacted.”); Houze v. Segarra, 2002 WL 1301555, at *2
(S.D.N.Y. July 16, 2002).
In any event, McNair at no time suggests that he went
through the appeal process permitted by 7 N.Y.C.R.R. §§
701.7(b), (c); 701.11(b)(6). This failure alone means that
McNair has not exhausted his administrative remedies.
Hemphill, 198 F.Supp.2d at 548.
[3] McNair offers several arguments why the lack
of exhaustion should be excused. First, he seems to
argue that he should be excused from the exhaustion
requirement because he seeks “monetary damages.”
McNair 4/15/2002 Mem. at 2. In Booth v. Churner,
532 U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001),
however, the Supreme Court held that the exhaustion
requirement applies to a plaintiff seeking relief unavailable
in the prison administrative proceeding such as monetary
damages. Id. at 740–41. Second, McNair adverts generally
to a conspiracy among the defendants to cover up their
misconduct. See, e.g., Complaint at § IV. He does not,
however, claim that any of the defendants prevented him
from filing a grievance complaint.
Third, McNair contends that had he filed a complaint
earlier it would have been disregarded because of
the pending disciplinary charges against him. McNair
4/15/2002 Mem. at 1. Assuming for purposes of argument
that use of the administrative process would have been
futile, the Supreme Court has made clear that where a
statute mandates exhaustion, even a futile administrative
process must be observed. Booth, 532 U.S. at 741 n. 6.
Fourth, McNair implies that the “Grievance supervisor”
failed to conduct his rounds in the segregated housing
unit he was in at the time. McNair 4/15/2002 Mem. at 1–
2. 4 But the grievance process allowed McNair to have
filed a grievance without interacting with the “Grievance
supervisor”—either by requesting a grievance form from
any accessible officer, 7 N.Y.C.R.R. 701.13(a)(1), or

simply writing the complaint on a plain sheet of paper. 7
N.Y.C.R.R. 701.7(a)(1).
4

McNair never directly states that the “Grievance
supervisor” failed to conduct these rounds. Instead,
his memorandum states that the defendants' motion
papers did not verify that this occurred. McNair
4/15/2002 Mem. at 2.

In fact, McNair admits that the reason the grievance
was not filed was not due to any inability to file such a
grievance but rather that he “could not trust an officer to
mail his grievance due to the assault on staff he was being
charged with.” McNair 4/15/2002 Mem. at 3. McNair's
own distrust of the system, however, in the absence of
any indication that he made an affirmative effort to file
a grievance, does not permit avoidance of the exhaustion
requirement. See Reyes v. Punzal, 206 F.Supp.2d 431, 434
(W.D.N.Y.2002) (“There is no suggestion in the record
that plaintiff was somehow prevented from appealing
his grievance, and even if plaintiff believed that further
attempts to seek relief through administrative channels
would prove fruitless, ‘the alleged ineffectiveness of
the administrative remedies that are available does not
absolve a prisoner of his obligation to exhaust such
remedies when Congress has specifically mandated that
he do so.’ ”) (citing Giano v. Goord, 250 F.3d 146,
150–51 (2d Cir.2001)). The fact that McNair does not
suggest that prison employees prevented him from filing
a complaint distinguishes this case from those where the
failure to exhaust was excused because the prisoner made
reasonable efforts to exhaust but was prevented from
doing so by prison employees. See, e.g., Rodriguez v.
Hahn, 2000 WL 1738424 (S.D.N.Y. Nov.22, 2000); see
also Miller v. Norris, 247 F.3d 736, 740 (8th Cir.2001)
(“a remedy that prison officials prevent a prisoner from
‘utiliz[ing]’ is not an ‘available’ remedy under § 1997e(a)”).
*9 With respect to his medical needs claim, McNair
states that he was threatened by Sergeant Jones and
warned not to complain to the medical staff about
his injuries. Complaint at § IV. Mere verbal threats
from correctional officers, however, do not excuse the
exhaustion requirement. See Flanagan v. Maly, 2002 WL
122921, at *2 n. 3 (rejecting argument that prisoner
could be excused from exhausting administrative remedies
where correctional officers threatened him with violence if
he filed a grievance because the prisoner “made no effort
to file a written grievance, and verbal discouragement by

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

8

McNair v. Sgt. Jones, Not Reported in F.Supp.2d (2002)
2002 WL 31082948

individual officers does not prevent an inmate from filing
a grievance”).
Finally, McNair argues that he has not submitted
“sufficient information” to establish whether he exhausted
administrative remedies and that he should be allowed
to take discovery concerning the Inspector General's
investigations and to depose various prison officials.
McNair Supp. Mem. at 4. In support of this argument
he cites Perez v. Blot, 195 F.Supp.2d 539 (S.D.N.Y.2002).
In Perez, the plaintiff was permitted to take discovery
on his informal grievance efforts because the Court
concluded that it was not clear if the plaintiff had
complied with the “informal” provisions of § 701.11. Id.
at 546. Here, McNair has explicitly stated what he in
fact did with respect to submitting his complaints and
nothing he states suggests that he complied with the §
701.11 procedures. Thus, discovery is not necessary. See,
e.g., Byas, 2002 WL 1586963, at *3 (plaintiff's attempt
to invoke Perez to suggest that he satisfied exhaustion
requirement unavailing because, among other reasons, he
did not submit evidence that he notified the defendants'
supervisor of the alleged assaults as required by § 701.11).
In sum, having determined that McNair has not exhausted
his administrative remedies nor offered a justification for
failing to do so, the claims of excessive force, unsanitary
conditions, conspiracy, and denial of medical needs must
be dismissed without prejudice. See Morales v. Mackalm,
278 F.3d 126, 126 (2d Cir.2002) (dismissal for failure to
exhaust should be without prejudice to refiling following
exhaustion).
[4] In a recent filing with the Court, McNair states that
on April 7, 2002, nearly a year after the complaint in
this case was filed, he filed a grievance with the Inmate
Grievance Resolution Committee. See Grievance, dated
April 7, 2002 (annexed to Affirmation in Opposition
to Defendant's Motion to Dismiss, filed July 29, 2002
(Docket  39)). He does not contend, however, that he
has completed this process. 5 In any event, exhausting
administrative remedies after a complaint is filed will not
save a case from dismissal. Neal v. Goord, 267 F.3d 116,
121–23 (2d Cir.2001), overruled on other grounds by Porter
v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12
(2002).
5

In fact, McNair complains that the Department of
Corrections has failed to respond to his grievance

complaint. See Letter, dated June 11, 2002 (annexed
as last page to Affirmation in Opposition to
Defendant's Motion to Dismiss, filed July 29, 2002
(Docket  39)). The Court notes that McNair
filed this grievance nearly three years after the
alleged incidents, and that inmate grievances must
be filed within 14 days of the incident or be timebarred, unless the inmate demonstrates mitigating
circumstances justifying the delay. 7 N.Y.C.R.R.
§ 701.7(a)(1). In any event, the Inmate Grievance
Program regulations provide that “matters not
decided within the time limits” for the initial step of
review (14 days) “may be appealed to the next step.”
7 N.Y.C.R.R. § 701.8.

C. Claims of Procedural Defects
[5] At the conclusion of his disciplinary hearing on
June 18, 1999, McNair was found guilty of various rule
violations. Disc. Hg. Transcript at 1. McNair challenges
the conduct of this hearing on the grounds that it
was procedurally flawed. He alleges that Pico “imposed
inappropriate penalties of 365 days Special Housing Unit,
365 days loss of Telephones, Packages, and 365 days
of recommended loss of good time” based on a prior
weapons charge and a misbehavior report that is not in
McNair's disciplinary record. Amended Complaint at ¶
1; McNair Aff. at ¶ 3. McNair also claims that Pico
denied McNair his right to call witnesses in his defense,
denied him “adequate assistance,” and that his ruling
was “arbitrary and capricious.” Amended Complaint at
¶ 1. In addition, McNair claims that because he gave
Superintendent Strack notice of the alleged constitutional
violations by way of his July 3, 1999 letter, Strack is
also liable for damages. See Affirmation in Opposition
Of Motion To Dismiss And/Or for Summary Judgment,
dated April 15, 2002 (“McNair April Aff.”). Defendants
now move to dismiss these claims not on exhaustion
grounds but rather pursuant to Fed.R.Civ.P. 12(b)(1)
and (b)(6) on the ground that McNair's claims are not
cognizable under 42 U.S.C. § 1983. See Notice of Motion,
dated May 9, 2002 (Docket  32); Memorandum of
Law In Support of Jose Pico and Superintendent Strack's
Motion to Dismiss the Amended Complaint, filed May 9,
2002 (Docket  33).

1. Standard for Motion to Dismiss
*10 A court should dismiss a complaint pursuant to Rule
12(b)(6) if it appears beyond doubt that the plaintiff can
prove no set of facts in support of the complaint that

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

9

McNair v. Sgt. Jones, Not Reported in F.Supp.2d (2002)
2002 WL 31082948

would entitle the plaintiff to relief. See, e.g., Strougo v.
Bassini, 282 F.3d 162, 167 (2d Cir.2002); King v. Simpson,
189 F.3d 284, 286–87 (2d Cir.1999). The Court must
accept all factual allegations in the complaint as true and
draw all reasonable inferences in favor of the plaintiff.
See, e.g., Koppel v. 4987 Corp., 167 F.3d 125, 130 (2d
Cir.1999); Jaghory v. New York State Dep't of Educ., 131
F.3d 326, 329 (2d Cir.1997). The issue is not whether a
plaintiff will ultimately prevail but whether the plaintiff
is entitled to offer evidence to support his or her claims.
See, e.g., Villager Pond, Inc. v. Town of Darien, 56 F.3d
375, 378 (2d Cir.1995), cert. denied, 519 U.S. 808, 117 S.Ct.
50, 136 L.Ed.2d 14 (1996). The Court must “confine its
consideration ‘to facts stated on the face of the complaint,
in documents appended to the complaint or incorporated
in the complaint by reference, and to matters of which
judicial notice may be taken.’ “ Leonard F. v. Israel Disc.
Bank of New York, 199 F.3d 99, 107 (2d Cir.1999) (quoting
Allen v. WestPoint–Pepperell, Inc., 945 F.2d 40, 44 (2d
Cir.1991)); Hayden v. County of Nassau, 180 F.3d 42, 54
(2d Cir.1999).
When considering motions to dismiss the claims of a
plaintiff proceeding pro se, pleadings must be construed
liberally. See, e.g., Haines v. Kerner, 404 U.S. 519, 520–21,
92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (a pro se complaint
may not be dismissed under Rule 12(b)(6) unless “ ‘it
appears beyond doubt that the plaintiff can prove no set
of facts in support of his claim which would entitle him
to relief.’ ”) (quoting Conley v. Gibson, 355 U.S. 41, 45–
46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); Lerman v. Board of
Elections, 232 F.3d 135, 139–40 (2d Cir.2000), cert. denied,
533 U.S. 915, 121 S.Ct. 2520, 150 L.Ed.2d 692 (2001);
Flaherty v. Lang, 199 F.3d 607, 612 (2d Cir.1999).

2. Merits of McNair's Claims
In Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129
L.Ed.2d 383 (1994), the Supreme Court held that a state
prisoner's claim for damages is not cognizable under 42
U.S.C. § 1983 if “a judgment in favor of the plaintiff
would necessarily imply the invalidity of his conviction or
sentence,” unless the prisoner can demonstrate that the
conviction or sentence had previously been invalidated. Id.
at 486–87. Later in Edwards v. Balisok, 520 U.S. 641, 117
S.Ct. 1584, 137 L.Ed.2d 906 (1997), the Court made clear
that a claim may not be brought under 42 U.S.C. § 1983
alleging a violation of procedural due process in a prison
disciplinary proceeding where the nature of the challenge
to the procedures necessarily implies the invalidity of the

judgment or punishment imposed, unless of course the
disciplinary proceeding is first invalidated. Id. at 648.
Here, McNair seeks damages based on his allegations that
the disciplinary proceedings were improperly conducted,
inter alia, because McNair was not permitted to call
witnesses, he did not have adequate assistance, and
the hearing officer relied on improper evidence (the
prior weapons charge). Amended Complaint at ¶ 1.
McNair's own filings with this Court concede that his
disciplinary sanction—the loss of good time credits and
other privileges—has never been invalidated. See, e.g.,
Notice of Appeal for Article 78, dated August 23, 2000
(reproduced as Ex. E to 6/11/2002 Exs.); Decision & Order
on Motion, dated May 30, 2001 (reproduced as Ex. O
to 6/11/2002 Exs.), at 2–3. Thus, Heck and Edwards bar
consideration of his claim in a § 1983 action.
*11 McNair asserts in reply that his appeal to the
Appellate Division, Second Department, was dismissed
for failure to perfect his appeal within 10 days and
that he was unable to perfect the appeal because of the
disruption of his legal mail. See Affirmation in Opposition
to Defendant's Motion to Dismiss, filed July 29, 2002
(Docket  39), at ¶ 19. But even assuming this to be true,
any attempt to seek relief for the untimely filing would
have been properly addressed only to the state court.
Because McNair has not “fully exhausted available state
remedies,” he has “no cause of action under § 1983 unless
and until the conviction or sentence is reversed, expunged,
invalidated, or impugned by the grant of a writ of habeas
corpus.” Heck, 512 U.S. at 489. In fact, nothing prevents
McNair from returning to federal court on some later date
if in fact he is able to obtain review from the state court
and that review results in a reversal or expungement of
the disciplinary action. See id. (statute of limitations for
bringing § 1983 claim does not commence until state court
proceedings have terminated in plaintiff's favor).
In addition, the Court notes that the case of Jenkins
v. Haubert, 179 F.3d 19 (2d Cir.1999), is of no help
to McNair because Jenkins held only that a § 1983
action would be available to a prisoner challenging the
constitutionality of a disciplinary proceeding where the
suit “does not affect the overall length of the prisoner's
confinement.” Id. at 27. Here, however, the sanction
against McNair included the loss of “good time” credits,
which is precisely the sort of sanction that affects the
length of confinement. See Edwards, 520 U.S. at 646–

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

10

McNair v. Sgt. Jones, Not Reported in F.Supp.2d (2002)
2002 WL 31082948

48; Hyman v. Holder, 2001 WL 262665, at *3 (S.D.N.Y.
Mar.15, 2001).
While McNair does not make the argument, it is also of
no moment that McNair's disciplinary hearing resulted
in additional sanctions that did not affect the length
of McNair's sentence (for example, the placement in
segregated housing and the loss of telephone privileges).
This is because a judgment in favor of McNair in a § 1983
suit for damages would nonetheless imply the invalidity
of his sentence through its reinstatement of good-time
credits. McNair has not suggested that he seeks damages
for the non-good-time sanctions by themselves and he
would be unable in any event to so “split” his claim. See
Gomez v. Kaplan, 2000 WL 1458804, at *7–11 (S.D.N.Y.
Sept.29, 2000) (citing cases) (dictum).
Accordingly, McNair's claim challenging the process and
validity of the disciplinary decision is not cognizable under
§ 1983 and must be dismissed with prejudice for failure
to state a claim upon which relief can be granted under
Fed.R.Civ.P. 12(b)(6). 6
6

The claim is not so patently without merit, however,
that dismissal is appropriate for lack of subject matter
jurisdiction under Fed.R.Civ.P. 12(b)(1). See, e.g.,
Town of West Hartford v. Operation Rescue, 915 F.2d
92, 100 (2d Cir.1990). Accordingly, the defendants'
motion must be denied on this ground.
Additionally, the request to dismiss unserved
defendants, made in a reply brief, see Defendants
Reply Memorandum of Law in Further Support of
Their Motion to Dismiss the Amended Complaint
And/Or For Summary Judgment, dated July 26,

End of Document

2002, at 1 n. 1, is now moot as the complaint does
not state a claim against any defendant.

III. CONCLUSION
Judgment should be entered in favor of the defendants
on all claims. With respect to McNair's claims against
Pico and Strack alleging due process violations, these
claims should be dismissed with prejudice. All other
claims should be dismissed without prejudice for failure to
exhaust administrative remedies.

Notice of Procedure for Filing of Objections
to this Report and Recommendation
*12 Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of
the Federal Rules of Civil Procedure, the parties have ten
(10) days from service of this Report to file any written
objections. See also Fed.R.Civ.P. 6. Such objections (and
any responses to objections) shall be filed with the Clerk
of the Court, with extra copies delivered to the chambers
of the Honorable Richard C. Casey, 40 Centre Street,
New York, New York 10007, and to the chambers of
the undersigned at the same address. Any request for an
extension of time to file objections must be directed to
Judge Casey. The failure to file timely objections will result
in a waiver of those objections for purposes of appeal.
See Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 88
L.Ed.2d 435 (1985).

All Citations
Not Reported in F.Supp.2d, 2002 WL 31082948

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

11