White v. Marinelli et al
Filing
36
MEMORANDUM-DECISION AND ORDER: ORDERED, that the Report-Recommendation (Dkt. No. 34 ) is ADOPTED in part and MODIFIED in part as described in this Memorandum-Decision and Order. ORDERED, that the Motion to Dismiss (Dkt. No. 19 ) is DENIED w ith respect to Plaintiff's Eighth Amendment conditions- of-confinement claim against Randel Smith and his First Amendment retaliation claim against Nelson, but GRANTED with respect to the Eighth Amendment medical indifference claim against Water son. ORDERED, that the Motion to Amend (Dkt. No. 28 ) is DENIED without prejudice. Plaintiff may renew his Motion to Amend with a revised proposed amended complaint that alleges only the following claims: (1) the First Amendment retaliation c laim against Tracy Nelson, Denise Bernier, and Roxanne LeClerc; (2) the Eighth Amendment deliberate medical indifference claims against Sergeants Luc Maynard and Patrick Baker, Officer Richard Winston, mental health worker John Marinelli, Nurse Heath Baker, and Lieutenant Robert Barkman, and nurse Michele Byno based on Plaintiff's mental health needs; (3) the Eighth Amendment conditions of confinement claims against (a) Maynard, Winston, Officer Adam Gallagher, Officer Brian Fournier, and S ergeant Richard Scott based on unsanitary conditions in Cell 13 in May 2014; (b) Sergeants Michael Eddy and Laura Gokey, Marinelli, and Randel Smith for keeping him in Cell 15 next to inmate Reeder, resulting in sleep deprivation, in May 2014; and ( c) Sergeant Randel Smith for placing him in Cell 18 next to inmate Reeder in December 2015; (4) the Eighth Amendment excessive force claims against Michael Gokey, Sarah Tompkins, and the unidentified Doe guards who participated in the September 2014 and 2015 assaults on Plaintiff; (5) the First Amendment retaliation claims against (a) Tompkins and her Doe accomplices regarding the 2015 assault and false disciplinary report; and (b) Laura Gokey and Randel Smith regarding inmate Reeder; (6) the Fo urteenth Amendment due process claims against Eric Gutwine and Plaintiff's Jane Doe inmate assistant regarding his December 2015 disciplinary hearing; and (7) any other claims that the Court has not already dismissed. ORDERED, that Plaintiff s hall file any such renewed motion to amend his complaint within thirty days of the filing date of this Memorandum-Decision and Order. ORDERED, that any such renewed motion to amend will be Plaintiff's final opportunity to amend his Complaint without a showing of good cause. ORDERED, that Plaintiff's Motion to Show Cause (Dkt. No. 35 at 2125) is DENIED. ORDERED, that this case continues to be referred to Magistrate Judge Andrew Baxter for full pretrial and report-recommendations concerning dispositive motions. Signed by Senior Judge Lawrence E. Kahn on 3/8/19. {order served via regular mail on plaintiff}(nas )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
EQUARN WHITE,
Plaintiff,
-against-
9:17-CV-1094 (LEK/ATB)
JOHN MARINELLI, et al.,
Defendants.
___________________________________
MEMORANDUM-DECISION AND ORDER
I.
INTRODUCTION
Plaintiff, a state prisoner, brings various constitutional claims stemming from his
incarceration at Upstate Correctional Facility. Dkt. No. 1 (“Complaint”). The Complaint names
twenty-two correctional officers as defendants. Id. at 1. On November 17, 2017, the Court
granted Plaintiff leave to proceed in forma pauperis, reviewed the Complaint, and dismissed
many of Plaintiff’s claims. Dkt. No. 4 (“November Order”). Defendants Tracy Nelson, Randel
Smith, and George Waterson have moved to dismiss the surviving claims. Dkt. No. 19 (“Motion
to Dismiss”). While the Motion to Dismiss was pending, Plaintiff filed his Motion to Amend,
attaching a 253-page proposed Amended Complaint that seeks to revive the dismissed claims and
add numerous claims and defendants. Dkt. Nos. 28 (“Motion to Amend”), 28-2 (“Amended
Complaint”). The Honorable Andrew T. Baxter, U.S. Magistrate Judge, issued a reportrecommendation concerning both motions. Dkt. No. 34 (“Report-Recommendation”). Plaintiff
has filed objections. Dkt. No. 35 (“Objections”).
For the reasons set forth below, the Court adopts the Report-Recommendation in part and
modifies it in part. It grants the Motion to Dismiss the Eighth Amendment claim against
Waterson, but it denies the motion as to the Eighth Amendment conditions-of-confinement claim
against Randel Smith and First Amendment retaliation claim against Nelson. It denies the Motion
to Amend. However, Plaintiff may renew his Motion to Amend with a revised proposed amended
complaint.
II.
LEGAL STANDARD
Within fourteen days after a party has been served with a copy of a magistrate judge’s
report-recommendation, the party “may serve and file specific, written objections to the
proposed findings and recommendations.” Fed. R. Civ. P. 72(b); L.R. 72.1(c). “The district judge
must determine de novo any part of the magistrate judge’s disposition that has been properly
objected to” and it “may accept, reject, or modify the recommended disposition; receive further
evidence; or return the matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3);
28 U.S.C. § 636. However, “where [the] parties receive clear notice of the consequences, failure
timely to object to a magistrate’s report and recommendation operates as a waiver of further
judicial review of the magistrate’s decision.” Mario v. P & C Food Markets, Inc., 313 F.3d 758,
766 (2d Cir. 2002); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) (holding that Congress did
not “intend[] to require district court review of a magistrate’s factual or legal conclusions, under
a de novo or any other standard, when neither party objects to those findings”).
The Court may excuse a party’s failure to object “in the interests of justice,” and modify
or reject the report-recommendation, if “the magistrate judge committed plain error in ruling
against the defaulting party.” Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d
162, 174 (2d Cir. 2000). Therefore, when no party objects to a magistrate judge’s
report-recommendation, courts in this circuit review it only to determine whether the magistrate
2
judge made a clear error. Boice v. M+W U.S., Inc., 130 F. Supp. 3d 677, 684 (N.D.N.Y. 2015);
see also Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition (“When no timely
objection is filed, the court need only satisfy itself that there is no clear error on the face of the
record in order to accept the recommendation.”).
III.
PROCEDURAL HISTORY
A. Initial Review
On November 17, 2017, the Court held that the following claims survived its initial sua
sponte review conducted pursuant to 28 U.S.C. § 1915:
(1)
An Eighth Amendment medical indifference claim against Nurse George
Waterson for failing to treat an infected rodent bite;
(2)
An Eighth Amendment conditions-of-confinement claim against Sergeant
Randel Smith for placing Plaintiff in Cell 18 next to an inmate “Reeder” who
kicked and banged on Plaintiff’s cell, depriving him of sleep, in December
2015; and
(3)
A First Amendment claim alleging that Offender Rehabilitation Counselors
Denise Bernier, Tracy Nelson, and Roxanne LeClerc retaliated against Plaintiff
by withholding copies of video footage he had requested to support a grievance
and referring him to the sex offender program.
The Court also found that the following claims were plausible, but were time-barred
because they accrued before September 24, 2014; however, it allowed Plaintiff an opportunity to
amend if he could identify a reason the Court should toll the statute of limitations:
(4)
Eighth Amendment deliberate medical indifference claims against Sergeants
Luc Maynard and Patrick Baker, Officer Richard Winston, mental health
worker John Marinelli, Nurse Heath Baker, and Lieutenant Robert Barkman,
based on Plaintiff's mental health needs in Spring 2014; and
(5)
Eighth Amendment conditions of confinement claims against: (a) Maynard,
Winston, Officer Adam Gallagher, Officer Brian Fournier, and Sergeant
Richard Scott based on unsanitary conditions in Cell 13 May 2014; and
3
(b) Sergeants Michael Eddy and Laura Gokey, Marinelli, and Randel Smith for
keeping Plaintiff in Cell 15 next to Reeder (the loud neighbor), resulting in
sleep deprivation, in May 2014.
Finally, the Court dismissed the following claims for failure to plausibly allege a
constitutional violation:
(6)
A Fourteenth Amendment deprivation of property claim against Scott and
Bernier;
(7)
Eighth Amendment medical indifference claims against: (a) Heath Baker, for
failing to treat a rash, foot fungus, and shingles; (b) Nurse Michele Byno, for
discontinuing Plaintiff’s mental health medication in October 2014; and (c)
Nurse Christy Conklin, for failing to treat an infected rodent bite;
(8)
Eighth Amendment conditions of confinement claims against: (a) Fournier and
Officer Michael Bashaw for not allowing Plaintiff to attend dinner on May 6,
2014; and (b) Fournier, Officer Jeffry Premo, Officer Nicholas Ashline, and
Randel Smith for barring him from the barber shop and commissary;
(9)
An Eighth Amendment claim against Nelson for verbal sexual harassment;
(10)
Fourteenth Amendment due process claims against: (a) Bernier and LeClerc for
placing Plaintiff in a sex offender program; and (b) Eddy related to Plaintiff’s
security status;
(11)
Fourteenth Amendment equal protection claims against Bernier and LeClere
for placing him in the sex offender program;
(12)
Fourteenth Amendment due process claims against Bernier and Nelson for
failing to respond to Plaintiff’s FOIL requests;
(13)
First Amendment claims alleging that Scott, Heath Baker, Nurse Administrator
Nancy Smith, Fournier, Bashaw, Randel Smith, Premo, Ashline, and Laura
Gokey retaliated against Plaintiff for filing grievances;
(14)
A First Amendment access-to-court claim against Bernier;
(15)
Conspiracy claims against Heath Baker and Marinelli; and
(16)
Related claims against two supervisory officers: (a) Nancy Smith, for failing
to remedy the violations regarding Plaintiff’s medical needs; and
4
(b) Superintendent Donald Uhler, for failing to transfer Plaintiff from his noisy
cell.
Nov. Order at 14–43.
B. Motions to Dismiss and Amend
Bernier and LeClerc answered the Complaint. Dkt. No. 22 (“Answer”). Waterson, Randel
Smith, and Nelson moved to dismiss the three surviving claims against them. Mot. to Dismiss.
They argued that the Eighth Amendment allegations against Smith and Waterson, and the First
Amendment allegations against Nelson, fail to state claims. Id. at 2, 6–17. Plaintiff then filed his
Motion to Amend. Bernier, LeClerc, Nelson, Randel Smith, and Waterson opposed that motion.
Dkt. No. 32 (“Opp’n to Mot. to Amend”). The other defendants named in the original and
proposed amended complaints have not been served process. Id. at 4.
C. Report-Recommendation
On December 12, 2018, Judge Baxter issued the Report-Recommendation. In it, he
recommends that this Court deny the Motion to Dismiss and allow discovery concerning the
Eighth Amendment conditions-of-confinement claim against Randel Smith. R. &. R at 1.
However, he concludes that the Court should dismiss the other two surviving claims: the Eighth
Amendment medical indifference claim against Waterson and the First Amendment retaliation
claim against Nelson. Id. Judge Baxter also recommends that the Court deny Plaintiff’s Motion
to Amend because the 253-page proposed Amended Complaint is not appropriately“short and
plain.” Fed. R. Civ. P. 8(a)(2). In support, he finds that “most of plaintiff’s proposed amendments
are futile because they fail to correct the defects identified in the [November Order].” R. &. R. at
19. However, he suggests granting Plaintiff leave to file a revised proposed amended complaint
5
to add only his revised conditions-of-confinement claims against Maynard, Winston, Marinelli,
Patrick Baker, Heath Baker, Barkman, Scott, Gallagher, Fournier, Eddy, and Laura Gokey, which
the Court had previously dismissed as untimely. Id. at 2. He concluded that “[i]n his Proposed
Amended Complaint, Plaintiff has provided documentation that he had timely initiated the
administrative grievance process with respect to those claims, and that he had not received final
determinations on those grievances until at least October 2014. Therefore, Plaintiff has presented
a colorable argument in favor of equitable tolling with respect to those claims.” Id.
Accordingly, the Magistrate Judge concludes that “the revised amended complaint should
only include: (1) those claims that survive Defendants’ motion to dismiss,” meaning (a) the
Eighth Amendment claims against Randel Smith “related to inmate noise and rodent infestation,
and [(b)] retaliation claims against defendants Bernier and LeClerc,” and “(2) the [May and June
2014] conditions of confinement claims that have a colorable argument in favor of equitable
tolling.” Id. at 23 n.14; see also id. at 20–23 (describing conditions of confinement claims).
IV.
DISCUSSION
Since Defendants have not objected to the Report-Recommendation, the Court reviewed
the Magistrate Judge’s decisions in favor of Plaintiff for clear error. It has found none. Thus,
Plaintiff’s Eighth Amendment conditions-of-confinement claim against Randel Smith survives,
and Plaintiff may amend his complaint to add his conditions-of-confinement claim against
Maynard, Winston, Marinelli, the Bakers, Barkman, Scott, Gallagher, Fournier, Eddy, and Gokey
within thirty days.
At issue are Plaintiff’s objections, filed on January 2, 2019. Obj. He attacks the
Report-Recommendation on two fronts. First, he argues that the Eighth Amendment medical
6
indifference claim against Waterson and the First Amendment retaliation claim against Nelson
each state a claim and should not be dismissed. Second, he argues that the Motion to Amend
should be granted. He asserts that the claims raised in his proposed Amended Complaint are
plausible, not futile. The Court will address each set of objections in turn.
As explained below, the Court agrees with the Magistrate Judge that the Complaint fails
to state a claim against Waterson, but finds that it does state a valid retaliation claim against
Nelson. Furthermore, the Court adopts Judge Baxter’s recommendation to deny Plaintiff’s
Motion to Amend. It agrees that the proposed Amended Complaint fails to revive some claims
that were dismissed in the November 2017 Order. However, the Court finds that several of
Plaintiff’s claims in the proposed Amended Complaint are plausible. Accordingly, it will allow
Plaintiff to file an Amended Complaint with respect to those claims.
A. Motion to Dismiss
Rule 12(b)(6) requires a complaint to be dismissed if it “fail[s] to state a claim on which
relief may be granted.” To state a valid claim, a complaint must allege “enough facts to state a
claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007); Fed. R. Civ. P. 8(a)(2). The Court may disregard “legal conclusions couched as factual
allegations” that are “devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). However, a court must take the “well-pleaded factual allegations” as true, id. at 679,
and “draw[] all reasonable inferences in the plaintiff’s favor,” Harris v. Mills, 572 F.3d 66, 71
(2d Cir. 2009). To “‘nudge[] [the plaintiff’s] claims across the line from conceivable to
plausible,’” the facts need only “‘raise a reasonable expectation that discovery will reveal
evidence’ of the wrongdoing alleged, ‘even if it strikes a savvy judge that actual proof of those
7
facts is improbable.’” Citizens United v. Schneiderman, 882 F.3d 374, 380 (2d Cir. 2018)
(quoting Twombly, 550 U.S. at 556–57, 570). Where, as here, a plaintiff is litigating pro se, the
Court must construe his or her pleadings “liberally and interpret[] them to raise the strongest
arguments that they suggest.” Sykes v. Bank of Am., 723 F. 3d 399, 403 (2d Cir. 2013).
When deciding a motion to dismiss under Rule 12(b)(6), “a district court may consider
the facts alleged in the complaint, documents attached to the complaint as exhibits, and
documents incorporated by reference in the complaint.” DiFolco v. MSNBC Cable L.L.C., 622
F.3d 104, 111 (2d Cir. 2010). It may also consider “documents or information contained in [the]
defendant’s motion papers if the plaintiff has knowledge or possession of the material and relied
on it in framing the complaint,” as well as “facts of which judicial notice may properly be taken
under Rule 201 of the Federal Rules of Evidence.” Envtl. Servs. v. Recycle Green Servs., 7 F.
Supp. 3d 260, 270 (E.D.N.Y. 2014) (quoting In re Merrill Lynch & Co., 273 F. Supp. 2d 351,
356–57 (S.D.N.Y. 2003)).
The facts alleged in the Complaint and Amended Complaint were recited in the
November Order and Report-Recommendation, and they are elaborated as necessary below. To
decide the Motions to Dismiss and Amend, the Court will take them as true and draw all
permissible inferences in Plaintiff’s favor. Harris, 572 F.3d at 71.
1.
Eighth Amendment Medical Indifference Claim Against Waterson
The Magistrate Judge correctly found that the facts alleged in both the Complaint and
Amended Complaint failed to state an Eighth Amendment medical mistreatment claim agaisnt
Waterson. On April 16, 2016, a mouse bit Plaintiff on the toe. Am. Compl. at 109–110, ¶ 164.1
1
Because the Court is also addressing the Motion to Amend in this MemorandumDecision and Order, for efficiency, it cites to the facts in the proposed Amended Complaint. With
8
Waterson, a staff nurse, came to Plaintiff’s cell and viewed the “bite mark as it was bleeding.” Id.
He told Plaintiff he would get a bandage, but did not return that day. Id. On April 17, another
nurse, Heath Baker, treated the bite with povidone-iodine, an antiseptic. Id. ¶ 166. The next day,
April 18, Defendant Waterson returned, “s[aw] that Plaintiff[’s] foot was infected, but refused to
treat Plaintiff.” Id. Plaintiff gave him a sick call slip—a request to see a doctor—but Waterson
destroyed it. Id. ¶¶ 166–67. In his original Complaint, Plaintiff alleged that the next morning,
April 19, he experienced “severe stomach pain,” and his skin was “turning yellow and green”
around the bite mark. Compl. at 47, ¶ 123. That afternoon, he began “coughing up blood and
whispered that he need[ed an] emergency sick call.” Am. Compl. at 111, ¶ 168. “[F]ive minutes
later, nurse [Christy] Conklin came to Plaintiff’s cell. And 30 minutes later, [she] came back”
and treated him with pain medication for head and stomach pain, hydrogen peroxide antiseptic,
and bacitracin ointment for the bite. Id.
An Eighth Amendment claim has “subjective” and “objective” components. Salahuddin
v. Goord, 467 F.3d 263, 280 (2d Cir. 2006). The subjective component requires that the
defendant have acted with a culpable state of mind: “deliberate indifference” to the plaintiff’s
health. Farmer v. Brennan, 511 U.S. 825, 834 (1994). The standard equates to criminal
recklessness; the prison official must “consciously disregard a substantial risk of serious harm.”
Id. at 839. Plaintiff asserts that Waterson acted with such deliberate indifference because he
ignored then intercepted Plaintiff’s requests for medical staff to treat the bite. Obj. at 4. The
Court assumes, without deciding, that these allegations are sufficient to satisfy the subjective
element.
respect to the Eighth Amendment claim against Waterson, the facts in the Amended Complaint
mirror the allegations in Plaintiff’s original Complaint unless otherwise noted.
9
However, Plaintiff must also make an objective showing that he (1) was “actually
deprived of adequate medical care,” meaning that prison officials “fail[ed] to take reasonable
measures in response to [his] medical condition;” and (2) that “the inadequacy in medical care is
sufficiently serious” in view of the “harm, if any, the inadequacy has caused or will likely cause”
Plaintiff. Salahuddin, 467 F.3d at 279. He must have had a “condition of urgency, one that may
produce death, degeneration or extreme pain.” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.
1998). Whether a condition is sufficiently serious depends on “[t]he existence of an injury that a
reasonable doctor or patient would find important and worthy of comment or treatment; the
presence of a medical condition that significantly affects an individual’s daily activities; or the
existence of chronic and substantial pain.” Id.
Even if Waterson had a culpable mindset, Plaintiff fails to satisfy the objective
element—because even if Waterson sought to withhold “adequate medical care” from Plaintiff,
he failed. Salahuddin, 467 F.3d at 279. Nurses Baker and Conklin “took reasonable measures in
response” to Plaintiff’s bite and infection when they treated his toe with antiseptic and pain
medication. Id.; Am. Compl. ¶ 168. Plaintiff’s wound was not even infected when Baker
sterilized it on April 17, and he does not allege that nurse Conklin’s April 19 treatment failed to
resolve the infection or other symptoms. Therefore, there is nothing to suggest that Plaintiff was
deprived of “reasonably necessary care.” Langley v. Coughlin, 888 F.2d 252, 254 (2d Cir. 1989).
That he requested a tetanus shot does not change the analysis. Nov. Order at 23–24; see also
Chance, 143 F.3d at 703 (“So long as the treatment is adequate, the fact that a prisoner might
prefer a different treatment does not give rise to an Eighth Amendment violation.”).
10
Therefore, at most, Plaintiff can allege that Waterson (by ignoring Plaintiff’s request for a
bandage on April 16, after the bite, and by destroying his sick call slip on April 18, when the
infection developed) delayed Baker and Conklin’s otherwise reasonable treatments by one day
each. “When a prisoner alleges ‘a temporary delay or interruption in the provision of otherwise
adequate medical treatment,’” the Court must “focus on the seriousness of the particular risk of
harm that resulted from ‘the challenged delay or interruption in treatment rather than the
prisoner’s underlying medical condition alone.’” Bellotto v. Cty. of Orange, 248 F. App’x 232,
236 (2d Cir. 2007) (quoting Smith v. Carpenter, 316 F.3d 178, 184–86 (2d Cir. 2003)). A delay
in providing necessary medical care only violates the Eighth Amendment if it exposes the inmate
to “the unnecessary and wanton infliction of pain,” or an “unreasonable risk” that he will suffer
similarly “serious harm” in the future. Smith, 316 F.3d at 186–87. The Second Circuit “has
reserved such a classification for cases in which, for example, officials deliberately delayed care
as a form of punishment, see Archer v. Dutcher, 733 F.2d 14, 16 (2d Cir. 1984)[where delay also
caused “extreme pain” and miscarriage], ignored a ‘life-threatening and fast-degenerating’
condition for three days, or delayed major surgery for over two years.’” Demata v. N.Y. State
Corr. Dep’t of Health Servs., 198 F.3d 233 (2d Cir. 1999) (citations omitted). In short, the facts
must demonstrate that the delay “exposed the inmate to undue suffering” before he was treated,
“or the threat of tangible residual injury” afterward. Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir.
2004).
Plaintiff does not provide facts suggesting that the one-day delays in treating his bite and
subsequent infection exposed him to extreme pain or threatened his future health. Even though
Waterson may have “deliberately delayed” the treatments, Plaintiff was not in pain at least until
11
the morning of April 19, and Conklin treated that pain within a few hours. Am. Compl. at 111,
¶ 168. Given the short time period, the pain was not “chronic,” and Plaintiff does not suggest that
it interfered with his daily activities. Chance, 143 F.3d at 702. In addition, the facts do not
indicate that the infection was “life-threatening,” “fast-degenerating,” or otherwise risked further
deterioration; it quickly resolved after Conklin applied another antiseptic, some pain medication,
and ointment. Am. Compl. ¶ 168. With any allegations of more severe injuries or lasting
complications, Plaintiff’s statement that his toe infection and stomach ache caused him “extreme
pain” for a few hours does not plausibly demonstrate that he endured “cruel and unusual
punishment” of a constitutional dimension. See Frith v. City of New York, 203 F. Supp. 3d 386,
389–90 (S.D.N.Y. 2016) (one-day delay in treating infected mouth abscess that allegedly caused
“extreme pain” did not state a claim because plaintiff did not provide enough facts to show “that
the delay itself caused or exacerbated the infection, caused him extreme pain, or caused any
permanent harm”).2
Therefore, even if Plaintiff’s Amended Complaint establishes that Waterson deliberately
ignored Plaintiff’s infected mouse-bite, its allegations demonstrate that other professionals gave
Plaintiff all the medical care that was “reasonably necessary” to treat his condition and did so
2
Compare Gomez v. Cty. of Westchester, 649 F. App’x 93, 96 (2d Cir. 2016) (one-day
delay in providing pain medication for “extreme tooth pain” did not support Eighth Amendment
claim) and Bilal v. New York State Dep’t of Corr., No. 09-CV-8433, 2010 WL 2506988, at *11
(S.D.N.Y. June 21, 2010), aff’d, 494 F. App’x 143 (2d Cir. 2012) (dismissing claim based on
allegations that plaintiff suffered “extreme” back and head pain for a “few hours” without pain
medication, where the delay did not worsen his condition); with Chance, 143 F.3d at 702–03
(six-month delay in treatment for dental condition that developed into infection and extreme
pain stated claim) and Archer, 733 F.2d at 16 (holding that beating that caused the pregnant
plaintiff “vaginal bleeding” and “cramps” causing “extreme pain” during twelve-day delay in
treatment, precipitating a miscarriage, stated claim).
12
before it became sufficiently serious. Langley, 888 F.2d at 254. As a result, Plaintiff’s Eighth
Amendment medical mistreatment claim against Waterson must be dismissed. Salahuddin, 467
F.3d at 279.
2.
First Amendment Retaliation Claim Against Tracy Nelson
Plaintiff also objects to the Magistrate Judge’s recommendation to dismiss Plaintiff’s
retaliation claim against Nelson, a Supervising Offender Rehabilitation Coordinator (“SORC”).
To prove a retaliation claim under § 1983, a prisoner must show “(1) that the speech or
conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff,
and (3) that there was a causal connection between the protected speech and the adverse action.”
Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir.2004). “It is well established that the filing of a
prison grievance is a constitutionally protected activity.” Burton v. Lynch, 664 F. Supp. 2d 349,
366 (S.D.N.Y. 2009) (citing Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996)). An “adverse
action” is one that “would deter a similarly situated individual of ordinary firmness from
exercising . . . constitutional rights” (by filing a grievance, for example). Gill, 389 F.3d at 381. A
“causal connection” is one in which the protected conduct was “a substantial or motivating factor
for the adverse actions taken by prison officials.” Bennett v. Goord, 343 F.3d 133, 137
(2d Cir.2003). Because “prisoner retaliation claims are easily fabricated, and . . . pose a
substantial risk of unwarranted judicial intrusion into matters of general prison administration,”
id., the Second Circuit has “insisted on a higher level of detail in pleading” prisoners’ retaliation
claims, Gill, 824 F.2d at 194, and instructed courts to “examine [them] with skepticism and
particular care,” Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1995). Thus, Plaintiff must supply
“specific and detailed factual allegations” suggesting that Defendants retaliated against him for
13
filing grievances, and may not rely on “wholly conclusory” statements to support such claims.
Dolan v. Connolly, 794 F.3d 290, 295 (2d Cir. 2015).
Plaintiff alleges that on March 28, 2016, he filed a grievance against Nelson and Bernier
for ignoring Plaintiff’s Freedom of Information Law (“FOIL”) requests for video footage that
supported his grievances against Bernier, LeClerc, and others,3 and for charging an exorbitant
price for the footage ($96.00 instead of the appropriate $0.60 cents). Compl. at 44, ¶ 115; see
also id. at 38–45. Nelson showed up at Plaintiff’s cell on April 21, 2016 and had a protracted
conversation with him. Id. at 50–52, ¶¶ 127-32. Plaintiff states that this was highly unusual; in
his four years, six months in state custody, a SORC had never visited or spoken to him. Id. at 52,
¶ 131. Nelson was holding a copy of his March 2016 grievance. Id. at 52, ¶ 132. She “tried to get
[him] to apologize about calling her Denise Bernier[’s] flunky,” and for his accusation that she
was involved in “corruption.” Id. Plaintiff also alleges that she asked him to expose his penis. Id.
at 52, ¶ 131. When Plaintiff refused, Nelson threatened that she had “been working for DOCCS
for 15 years” and knew that “all [she] had to do [was] tell the C.O.” that Plaintiff exposed
himself and he would be disciplined. Id. Approximately fifteen months later, in August 2017, a
New York court ordered Nelson to grant Plaintiff’s FOIL request and produce the video footage.
Compl. at 62–63, ¶ 164(D). Instead of complying, Nelson destroyed “3 different DVDs and
multiple documents” related to Plaintiff’s request. Obj. at 9; Compl. at 44, ¶¶108, 113–14. And
3
Nelson allegedly destroyed footage of LeClerc “telling Plaintiff that [his] sex offense
referral was for grievances and complaints,” “of a nurse telling Plaintiff that a doctor at
Greenhaven [Correctional Facility] knew about an infection but failed to treat Plaintiff,”
Compl. at ¶ 164(D), and of the mouse biting Plaintiff and his subsequent conversation with
nurses, id. at 47–48, ¶ 124. Bernier allegedly withheld footage of a conversation between
Plaintiff and a hearing officer, Gutwine, during Plaintiff’s December 2015 disciplinary hearing.
Id. at 33, ¶ 91.
14
Nelson continued to insist that Plaintiff pay the excessive $96.00 to process his F.O.I.L. request.
Id.
The Magistrate Judge found that the Complaint lacks facts showing that Plaintiff’s March
2016 grievance prompted Nelson to charge the exorbitant fee and destroy the video footage.
R. & R. at 15. Indeed, Plaintiff concedes in the Complaint that Nelson had already decided to
charge Plaintiff $96.000 before Plaintiff filed the March 2016 grievance and, therefore, does not
plausibly suggest that the overcharging was retaliatory. Compl. at 38–40, 44, ¶¶ 103, 106–08,
114. However, at least two alleged facts plausibly suggest that Nelson acted with a retaliatory
animus in destroying the tapes: first, her April 16, 2016 visit to Plaintiff’s cell—in which she
rebuked Plaintiff for filing the grievance and tried to coax him expose himself so that she could
file disciplinary charges. Baskerville v. Blot, 224 F. Supp. 2d 723, 733 (S.D.N.Y. 2002)
(defendants’ statements chiding plaintiff for filing grievances, and administrative finding that
plaintiff’s discipline was unjustified, sufficed to allege that discipline was retaliatory, even
though plaintiff did not allege grievances were filed recently). Second, destroying the tapes
violated the state court’s order. Obj. at 9; Compl. at 38–44, 52, ¶¶108, 112–114, 131. Such
improper conduct evinces improper motives. See Shakur, 391 F.3d at 116 (“[F]ailure to abide by
established procedures or standards can evince an improper objective” or “personal prejudice.”).
Indeed, there is no obvious reason other than retaliation why Nelson would have
destroyed the video footage Plaintiff requested. The fact that a year passed before she did so does
not prove otherwise; until the state court ordered Nelson to produce the footage in 2017, she
could simply withhold it from Plaintiff; there was no reason to destroy it. Obj. at 9; see also
Espinal, 558 F.3d (finding passage of time less of an obstacle where there was a plausible reason
15
officers would have waited so long to retaliate); cf. Clark, 532 U.S. at 274 (“Action taken (as
here) 20 months later suggests, by itself, no causality at all”).
B. Motion to Amend
“Leave to file an amended complaint ‘shall be freely given when justice so requires,’ and
should not be denied unless there is evidence of undue delay, bad faith, undue prejudice to the
non-movant, or futility.” Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001)
(quoting Fed. R. Civ. P. 15 and citing Foman v. Davis, 371 U.S. 178, 182 (1962)). To determine
if an amendment would “prejudice” the opposing party, courts must consider whether its
allowance would: “(i) require the opponent to expend significant additional resources to conduct
discovery and prepare for trial; (ii) significantly delay the resolution of the dispute; or
(iii) prevent the plaintiff from bringing a timely action in another jurisdiction.” Block v. First
Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993). An amendment is “futile only if the proposed
new claim cannot withstand a 12(b)(6) motion to dismiss for failure to state a claim.” Id. at 110.
A proposed amended complaint may also be subject to dismissal (and therefore futile) if
it is not “short and plain.” Fed. R. Civ. P. 8(a)(2). As the Second Circuit has written:
Rule 8 [of the Federal Rules of Civil Procedure] provides that a complaint “shall
contain . . . a short and plain statement of the claim showing that the pleader is entitled
to relief.” Fed. R. Civ. P. 8(a)(2). The [complaint’s] statement [of the plaintiff’s claim]
should be plain because the principal function of pleadings under the Federal Rules is
to give the [defendants] fair notice of the claim asserted so as to enable [them] to
answer and prepare for trial. The statement should be short because “[u]nnecessary
prolixity [meaning too much unneeded detail] in a pleading places an unjustified
burden on the court and the party who must respond to it because they are forced to
select the relevant material from a mass of verbiage.”
When a complaint does not comply with the requirement that it be short and plain, the
court has the power, on its own initiative or in response to a motion by the defendant,
to strike any portions that are redundant or immaterial, Fed. R. Civ. P. 12(f), or to
16
dismiss the complaint. Dismissal, however, is usually reserved for those cases in which
the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true
substance, if any, is well disguised. When the court chooses to dismiss, it normally
grants leave to file an amended pleading that conforms to the requirements of Rule 8.
Salahuddin v. Cuomo, 861 F.2d 40, 41–42 (2d Cir. 1988) (concluding that the district court was
within its discretion to dismiss a 15-page, single-spaced complaint that was not “vague or
incomprehensible,” but contained too much detail; granting leave to amend); see also Jones v.
Nat’l Commc’ns & Surveillance Networks, 266 F. App’x 31, 33 (2d Cir. 2008) (“[T]he district
court’s determination, that [plaintiff’s] single-spaced 58–page complaint with 87 additional
pages of attachments, alleging over twenty separate causes of action against more than 40
defendants, violated the short and plain statement requirement of Rule 8, was not an abuse of
discretion.”).
1.
Excessive Length
Plaintiff’s proposed Amended Complaint comprises 308 paragraphs, divided into
numerous subparagraphs, and spans 253 pages. Large portions of it are devoted to legal
argument. Accordingly, it is neither “short” nor “plain,” as Rule 8(a)(2) requires. In addition, the
Magistrate Judge was correct to conclude that it fails to allege information adequate to revive
many of the claims dismissed in the November Order. Requiring defendants to answer such a
lengthy complaint, with so much extraneous material, would waste their time and stall this case
unnecessarily. The Court could comb through the proposed amended complaint to identify and
strike the irrelevant and non-factual material. But doing so “would [waste] resources upon which
other litigants have an equal call.” VTech Holdings Ltd. v. PriceWaterhouseCoopers, LLP, No.
03-CV-1419, 2003 WL 21756623, at *2 (S.D.N.Y. July 30, 2003). In sum, allowing the Motion
17
to Amend would prejudice Defendants, delay this case, and strain judicial time and
resources—which alone justifies denying it. Block, 988 F.2d at 350.
That said, the Court agrees with Plaintiff that many of the allegations in his proposed
Amended Complaint provide enough detail to correct defects in certain claims that were
dismissed in the November Order. Obj. at 11–12. Therefore, the Court will allow Plaintiff to file
a proposed Amended Complaint that includes only the facts relevant to the claims that survive
this Memorandum-Decision and Order, which the Court will list below.4 The revised amended
complaint should not include claims that this Court has previously dismissed or deems futile in
this opinion. Since Plaintiff has had two opportunities to plead those claims and has described
the underlying events in significant detail, and since this case has stalled in the pleading stage for
over a year and consumed significant judicial time and resources in the interim, the Court
dismisses those claims without leave to re-plead. See De Jesus v. Sears, Roebuck & Co., 87 F.3d
65, 72 (2d Cir. 1996) (stating that a court may “dismiss a [claim] without leave to replead when a
party has been given ample prior opportunity to allege [the] claim”).5
The Court will first address the claims in the proposed Amended Complaint that are
viable; then, it will address the claims that are futile.
4
Any legal argument should be limited to indicating which legal claims his factual
allegations are intended to support. Plaintiff will have the opportunity to submit a more detailed
legal analysis, with citations to caselaw, if Defendants file another motion to dismiss or for
judgment in their favor.
5
The Court will not set a page limit for the amended complaint, but advises Plaintiff
that it does not appear that his surviving claims should require him to use more than the
approximately seventy pages he used in his original Complaint.
18
2.
Assault Claims against Michael Gokey, Sarah Tomkins, and John Does
First, Plaintiff alleges that on September 2, 2014, he was “sexually assaulted by staff”
including Michael Gokey and unidentified officers at Green Haven. Am. Compl. at 52,
¶ 101(F)(1). He states that he was “punched in the testicles, and staff . . . rammed their fingers in
[Plaintiff’s] anus,” causing swelling and other injuries. Id. He also alleges that at least eight times
from March 24 to September 8, 2015, Officer Sarah Tompkins would “pull Plaintiff to the side”
in the “library and make inappropriate comments.” Am. Compl. at 63, ¶ 109. Among other
things, she said that her “home girl,” referring to Tracy Smith, “said your sexy ass is scared of
pussy.” Am. Compl. at 63, ¶ 109. After Plaintiff filed a grievance against Smith for sexual
harassment, Tompkins chided him about it, saying, “you[’re] not stupid enough to file a
grievance against me.” Id. ¶ 115. Plaintiff then describes how, on September 22, 2016, Tompkins
conspired with four other officers to assault Plaintiff in a vacant classroom near the prison
library. Id. ¶¶ 118–19. The officers then falsely charged Plaintiff with “lewd conduct” and
assaulting staff. Id. ¶¶ 119–21.
i. Eighth Amendment Claims Against Gokey, Tomkins, and Does
Prison guards may not use force in such a way—“maliciously and sadistically to cause
harm”—even if they cause only minor injuries (or, for that matter, no injuries). Griffin v.
Crippen, 193 F.3d 89, 92 (2d Cir. 1999). Such physical assaults by guards to humiliate an inmate,
or in retaliation for past conduct, violate the Eighth Amendment. Crawford v. Cuomo, 796 F.3d
252, 257 (2d Cir. 2015) (“A corrections officer’s intentional contact with an inmate’s genitalia or
other intimate area, which serves no penological purpose and is undertaken with the intent to
gratify the officer’s sexual desire or humiliate the inmate, violates the Eighth Amendment.”);
19
Edwards v. McGrain, No. 09-CV-582, 2012 WL 6701826, at *5 (W.D.N.Y. Dec. 26, 2012)
(Eighth Amendment claim based on beating by correctional officers in retaliation for grievance
overcame summary judgment despite only minor injuries). Accordingly, Plaintiff states a valid
Eighth Amendment excessive force claim against Gokey, Tompkins, and the John Doe officers
who acted in concert with them.6
ii. First Amendment Retaliation Claims Against Tompkins
Given the facts suggesting that Tracey Smith was friends with Tompkins and told her
about her sexual harassment of Plaintiff and his grievance about it, it is also plausible that
Tompkins instigated the September 22, 2016 beating in retaliation for that grievance. See Am.
Compl. at 63–64, ¶¶ 109, 115. Therefore, Plaintiff also states a First Amendment retaliation
claim against Tompkins—both for the beating and the false disciplinary charges (for lewd
conduct and assault) designed to fabricate a justification for it. Ford v. Martuscello, No. 14-CV1566, 2016 WL 5322166, at *5 (N.D.N.Y. June 23, 2016), adopted, 2016 WL 5256901
(N.D.N.Y. Sept. 22, 2016) (inmate stated claim that defendants, in beating inmate, retaliated for
complaints against other officers where facts suggested the officers were aware of his grievances
against their friends and assaulted plaintiff within one to four months of their filing); Gill, 389
F.3d at 384 (holding that filing a false misbehavior report was an adverse action for purposes of
retaliation analysis).
6
Although the claims regarding Gokey accrued two weeks before the September 24,
2014 time-bar, Plaintiff’s September 8, 2014 grievance may have tolled the limitations period.
R. & R. at 21 (citing Gonzales v. Hasty, 651 F.3d 318, 324 (2d Cir. 2011)).
20
3.
First Amendment Retaliation Claim Against Laura Gokey and Randel Smith
In his original Complaint, Plaintiff also alleged that Sergeants Laura Gokey and Randel
Smith retaliated against him by keeping him in a cell neighboring inmate Reeder, who loudly
“banged and kicked” Plaintiff’s cell door so incessantly that Plaintiff “was only able to sleep two
to three hours a day and began to hallucinate, developed migraines, and lost his impulse control.”
Nov. Order at 27. “Plaintiff claim[ed] that he was placed in a cell adjacent to [Reeder] on two
occasions: first, during his initial confinement at Upstate in Cell 15 from May 2014 until
[September] 2014 and, second, in Cell 18 from December 29, 2015 until April 25, 2016.” Id. at
40. Plaintiff repeats the same allegations in his proposed Amended Complaint. Am. Compl. at
51–59, ¶ 101. The Court previously upheld Plaintiff’s Eighth Amendment claim based on these
allegations, but dismissed his related retaliation claim because Plaintiff failed to describe any
particular grievance that precipitated his cell placements. Nov. Order at 27, 35–36; R. & R. at
9–11, 26.
However, additional facts in the Amended Complaint describe just such a grievance and
plausibly allege a causal connection to Gokey and Smith’s actions. Plaintiff now asserts that on
September 8, 2014, he filed a grievance regarding the September 2, 2014 sexual assault by staff.
Am. Compl. at 52, ¶ 101(F)(1). “A couple of inmates told Plaintiff that one of the officers was
[Laura] Gokey’s husband Michael Gokey, who’s known for assaulting inmates.” Id. ¶101(F)(2).
Laura Gokey plausibly knew about the grievance because it was against her husband, and on
September 10, 2014, she took Plaintiff from his cell for another guard to photograph his injuries
and questioned him about the assault. Id. During the questioning, she told him that he “should let
it go.” Id. Later, when Plaintiff asked why other inmates around him were being transferred to
21
different cells when he was not, even though Reeder was “depriving him of sleep,” Gokey
“whispered, ‘because they don’t write grievances.’” Id. ¶ 101(F)(3).
On September 19, 2014, Plaintiff received a letter stating that he should have been moved
to a different floor, and that Randel Smith, Laura Gokey, and another officer (Eddy) knew why
he had not yet been moved. Id. ¶ 101(M). When Plaintiff asked Smith why, he lied that there was
“no [other] cell open.” Id. Smith also allegedly misrepresented to the IGRC that he interviewed
Plaintiff about his September 8, 2014 grievance against Smith and Gokey concerning Reeder.
Am. Compl. at 55–56, ¶ 101(L), (M), (N)(2); Dkt. Nos. 28-3 at 40–41 (Exhibit S”), 28-3 at
42–43 (“Exhibit T”). The Inmate Grievance Review Committee (“IGRC”) dismissed the
grievance because Smith stated that Plaintiff could not “substantiate” it. Id. On December 29,
2015, when Plaintiff was transferred back to Upstate, Smith interviewed him and returned him to
the cell neighboring Reeder over Plaintiff’s protest. Id. at 58, ¶ 101(N)(7).
The proposed allegations, taken as true, suggest that Gokey and Smith had retaliatory
motives and influenced the decision to keep Plaintiff in the cell next to Reeder. According to the
Amended Complaint, Gokey: (1) was married to subject of Plaintiff’s grievance and therefore,
had a reason to retaliate; (2) warned Plaintiff to withdraw the grievance; (3) had the power to
prevent Plaintiff’s transfer; and (4) suggested that Plaintiff was being kept in Cell 15 next to
Reeder because of his grievances. And Smith: (1) must have known about Plaintiff’s 2014
grievance regarding Reeder, given that he told the IGRC he had interviewed Plaintiff about it; (2)
was willing to lie to Plaintiff and the IGRC to keep Plaintiff in the cell; and (3) another officer
suggested that Smith knew the reasons Plaintiff was not being moved despite protocol indicating
that he should have been. Finally, Plaintiff alleges that it was a common practice at Upstate to
22
place inmates who filed grievances next to Reeder as punishment. Am. Compl. at 60, ¶ 104; Dkt.
No. 28-3 at 63 (“Exhibit EE”). These facts make it plausible that Gokey and Smith refused to
move Plaintiff in late 2014, and that Smith returned him to the same cell when he returned to
Upstate, in retaliation for Plaintiff’s grievances against them.
Although Smith and Gokey’s 2014 actions were outside the applicable limitation period
(that is, before September 24, 2014), the Magistrate Judge concluded that equitable tolling may
apply to the claims based on those actions, a conclusion to which Defendants did not object. R.
&. R. at 22. Thus, the allegations against both Gokey (in 2014) and Smith (in 2014 and 2015)
regarding Reeder and Plaintiff’s resulting sleep deprivation state a claim for First Amendment
retaliation.
4.
Due Process Claim against Eric Gutwine
In December 2015, Officer Gutwine held a disciplinary hearing concerning Tompkins’
and her cohorts’ allegedly false charges that Plaintiff engaged in “lewd conduct” and assaulted
staff members in the classroom near the prison library. Am. Compl. at 68–69, ¶¶ 120–21.
Gutwine found Plantiff guilty and sentenced him to 270 days of confinement in the Special
Housing Unit (“SHU”) and “loss of privileges.” Id. at 83, ¶ 124(C). The finding caused
Plaintiff’s subsequent transfer back to Upstate on December 24, 2015 (where Randel Smith
allegedly placed him next to inmate Reeder) and was used as the basis for referring Plaintiff to
the Sex Offender Counseling and Treatment Program (“SOCTP”). Id. at 83–84, ¶ 127; Obj. at 15.
Plaintiff alleges that he was denied due process at the hearing. These allegations may state a
claim under the Fourteenth Amendment, and the Court cannot conclude they are futile.
23
To establish that prison officials violated the Due Process Clause, Plaintiff must show
that they deprived him of a liberty interest without adequate procedural protections. Ortiz v.
McBride, 380 F.3d 649, 654 (2d Cir. 2004). “A prisoner’s liberty interest is implicated by prison
discipline, such as SHU confinement, only if the discipline ‘imposes [an] atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life.’” Palmer v. Richards,
364 F.3d 60, 64 (2d Cir. 2004) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)).
“[W]hether the conditions of a segregation amount to an ‘atypical and significant hardship’ turns
on the duration of the segregation and a comparison with the conditions in the general population
and in other categories of segregation.” Arce v. Walker, 139 F.3d 329, 336 (2d Cir. 1998).
In the Complaint, Plaintiff focused on his referral to SOCTP as the relevant liberty
deprivation underlying his due process claim. Compl. at 61–64. The Court previously concluded
that such “sex offender classification and programming do not trigger due process rights” in
prison. Nov. Order at 30–31 (citing Blake v. Fischer, No. 09-CV-266, 2010 WL 2522198, at *10
(N.D.N.Y. Mar. 5, 2010), adopted, 2010 WL 2521978 (N.D.N.Y. June 15, 2010)). In his
Amended Complaint and Objection, however, Plaintiff clarifies that he was also confined in the
SHU for 290 days. Obj. at 15; Am. Compl. at 83, ¶ 124(C). “Where the plaintiff was confined [in
SHU] for an intermediate duration—between 101 and 305 days—‘development of a detailed
record’ of the conditions of the confinement relative to ordinary prison conditions is required [to
determine whether a prisoner’s liberty interest was infringed].” Palmer, 364 F.3d at 64–65. “In
the absence of a detailed factual record,” the Second Circuit has “affirmed dismissal of due
process claims only in cases where the period of time spent in SHU was exceedingly short—less
than the 30 days that the Sandin plaintiff spent in SHU—and there was no indication that the
24
plaintiff endured unusual SHU conditions.” Id. at 65–66. In this case, Plaintiff’s allegation that
he was held in the SHU for 270 days, especially coupled with the sleep-depriving conditions he
allegedly experienced there, implicate a liberty interest. See Colon v. Howard, 215 F.3d 227, 232
(2d Cir. 2000) (holding after a trial that confinement in SHU for 305 days implicated a liberty
interest); Thomas v. Calero, 824 F. Supp. 2d 488, 500 (S.D.N.Y. 2011) (denying motion to
dismiss because 291 days in SHU implicated liberty interest).
Nonetheless, to state a claim for a violation of due process, Plaintiff must also allege facts
showing that the hearing lacked “that minimal process guaranteed by the Constitution” to assure
basic fairness in the correctional context. Shakur v. Selsky, 391 F.3d 106, 119 (2d Cir. 2004); see
also Sira v. Morton, 380 F.3d 57, 69 (2d Cir. 2004) (listing constitutional requirements). Many of
the alleged defects in Plaintiff’s hearing were not so fundamental as to deny him the process due
under the Constitution.
First, Gutwine delayed the hearing six times, from October 5 to December 9, 2015. Am.
Compl. ¶¶ 122(A), (B)(11). New York regulations provide that when an inmate is in segregated
confinement pending his disciplinary hearing, the hearing must commence within seven days
unless the “commissioner or his designee” authorizes the delays. 7 N.Y.C.R.R. 251-5.1.
However, violations of New York regulations governing disciplinary hearings do not always
violate the stricter, minimum standards imposed by the Fourteenth Amendment. Shakur, 391
F.3d at 119. Here, the delay did not violate the regulation because the hearing officer granted
requests for extensions of time. Am. Compl. ¶¶ 122(A), (B)(11). In any event, the delay only
resulted in Plaintiff’s pre-hearing confinement in the SHU for approximately 65 days—a duration
which, in normal SHU conditions, does not implicate a liberty interest (or, therefore, any
25
constitutional right to process) under normal SHU conditions. See Tafari v. McCarthy, 714 F.
Supp. 2d 317, 375 (N.D.N.Y. 2010) (stating that sixty and ninety-day SHU confinements “fall
within the ‘short range’ of disciplinary confinement and thus implicate a liberty interest only if
‘the conditions were more severe than the normal SHU conditions’” (quoting Palmer, 364 F.3d at
65)).
Second, Plaintiff asserts that an off-the-record conversation shows that Gutwine
“predetermin[ed] Plaintiff’s guilt.” Am. Compl. at 81, ¶ 124. Gutwine allegedly advised Plaintiff
he was “digging [him]self in a deeper hole” because he had “contradicted [him]self” several
times, and asked Plaintiff why he believed the corrections officers would lie, among other things.
Id. ¶ 124(A). But “[i]t is well recognized that prison disciplinary hearing officers are not held to
the same standard of neutrality as adjudicators in other contexts.” Allen v. Cuomo, 100 F.3d 253,
259 (2d Cir. 1996). Gutwine’s skepticism would have been a rational response to perceived
contradictions within Plaintiff’s testimony. Even if Gutwine was mistaken, and Plaintiff’s
testimony was consistent, such a misunderstanding does not suggest that Gutwine prejudged any
evidence he had not yet seen. Sawyer v. Prack, No. 14-CV-1198, 2016 WL 5440596, at *11
(N.D.N.Y. July 29, 2016), adopted, 2016 WL 5415790 (N.D.N.Y. Sept. 28, 2016). Accordingly,
Plaintiff has not stated a claim that Gutwine was so biased as to deny Plaintiff a fundamentally
fair hearing.
Nevertheless, the other defects Plaintiff alleges—that Gutwine denied without
explanation his requests to present witnesses and documents, and that his inmate assistant failed
to marshal any such evidence while Plaintiff was incapacitated in the SHU—may provide a
viable basis for a due process claim.
26
A prisoner facing a loss of liberty has a qualified “right . . . to call and present witnesses
and documentary evidence in his defense before the disciplinary board.” Ponte v. Real, 471 U.S.
491, 495 (1985) (citing Wolff v. McDonnell, 418 U.S. 539, 563–66 (1974)). Institutional
interests in safety and “swift discipline in individual cases” give prison officials the “discretion to
keep the hearing within reasonable limits and to refuse to call witnesses” when doing so “may
create a risk of reprisal or undermine authority.” Id. Thus, a hearing officer may deny a request to
call a witness “on the basis of irrelevance or lack of necessity,” Scott v. Kelly, 962 F.2d 145, 147
(2d Cir. 1992), and may “limit access to other inmates to collect statements or to compile other
documentary evidence,” Ponte, 471 U.S. at 495. “Courts will not . . . second guess the
[reasonable] judgment of prison officials with respect to such matters.” Sira, 380 F.3d at 75. Still,
“prison officials who decide to circumscribe inmates’ procedural rights at disciplinary
proceedings must offer a reasonable justification for their actions, if not contemporaneously, then
when challenged in a court action.” Id.; Ponte, 471 U.S. at 492 (holding that due process
“requires that prison officials at some point state their reason for refusing to call witnesses
requested by an inmate at a disciplinary hearing”). “The burden is not upon the inmate to prove
the official’s conduct was arbitrary and capricious, but upon the official to prove the rationality
of [his or her] position.” Kingsley v. Bureau of Prisons, 937 F.2d 26, 30–31 (2d Cir. 1991).
In addition, prisoners who are confined to the SHU and “unable to ‘marshal evidence and
present a defense’” have a right to “be assigned to the inmate [or staff member] to act as his
surrogate—to do what the inmate would have done were he able.” Silva v. Casey, 992 F.2d 20,
22 (2d Cir. 1993) (quoting Eng v. Coughlin, 858 F.2d 889, 898 (2d Cir. 1988)).“[S]uch help
certainly should include gathering evidence, obtaining documents and relevant tapes, and
27
interviewing witnesses”—the investigatory tasks which the inmate, were he able, could perform
for himself.” Eng, 858 F.2d at 898. Furthermore:
The assistance must be provided in good faith and in the best interests of the
inmate. “For example, an assistant . . . who is requested to interview a group
of prisoners too numerous to interview must attempt to determine
independently who the most relevant witnesses might be and to interview them.
Id. “[A]n assigned assistant who does nothing to assist a disabled prisoner—one who is
segregated from the general prison population—has failed to accord the prisoner his limited
constitutional due process right of assistance.” Id.
The proposed Amended Complaint plausibly alleges that before the hearing, Plaintiff’s
staff inmate assistant declined to interview witnesses or retrieve documents, and that at the
hearing, Gutwine denied Plaintiff’s requests to call witnesses. Am. Compl. at 71, ¶¶ 122(B)–124.
Neither defendant offered any legitimate reason for their decisions. Id. Thus, Plaintiff appears to
state a claim that the inmate assistant (who is not identified) and Gutwine prevented Plaintiff
from marshaling witnesses and evidence in his defense and did so without justification.
Nevertheless, Plaintiff’s due process claims may face another hurdle. It is “inappropriate
to overturn the outcome of a prison disciplinary proceeding because of a procedural error without
making the normal appellate assessment as to whether the error was harmless or prejudicial.”
Powell v. Coughlin, 953 F.2d 744, 750 (2d Cir. 1991). Since it is not clear from the Proposed
Amended Complaint why any of the requested documents or witnesses were relevant to
Plaintiff’s case, the Court cannot determine whether Gutwine may have acquitted Plaintiff if he
had been allowed to present the evidence he requested. Still, it appears reasonably likely that
Plaintiff will be able to clarify the relevance of the suppressed evidence and witnesses in his
28
revised Amended Complaint. Therefore, Court will allow him to attempt to replead his due
process claim against Gutwine and the inmate assistant in his revised amended complaint.
That said, the Court expresses no opinion on whether Plaintiff’s present allegations,
which do not show prejudice, state a due process claim. It may indeed be sufficient for Plaintiff
to plead what he already does: that the staff assistant and Gutwine prevented Plaintiff from
presenting the requested witnesses and evidence and did so without justification. See Chavis v.
Zodlow, 128 F. App’x 800, 805 (2d Cir. 2005) (denying pre-Twombly motion to dismiss because
prisoner was denied opportunity to call witnesses; not requiring prisoner to plead prejudice). In
other words, it is possible that “harmless error” is an affirmative defense; if so, it would be
incumbent on prison officials to show it “clear from the face of the complaint and matters of
which the court may take judicial notice” that any such errors were harmless. Ellul v.
Congregation of Christian Bros., 774 F.3d 791, 798 (2d Cir. 2014) (describing standard for
dismissal based on affirmative defense). Indeed, in an appeal from or collateral attack on a
criminal conviction, the state has the burden to show that any constitutional error was harmless.
Lainfiesta v. Artuz, 253 F.3d 151, 158 (2d Cir. 2001) (holding that “[w]hen evaluating
presumptively correct convictions on collateral habeas review” [t]he burden of persuasion is on
the government” to show “harmless error”); Chapman v. California, 386 U.S. 18, 24 (1967)
(holding that on direct review of a criminal conviction the state must “prove beyond a reasonable
doubt that the error complained of did not contribute to the verdict obtained.”).
On the other hand, to show that the state unconstitutionally suppressed evidence in the
first place, even a criminal defendant must show that the suppression “deprive[d] [him] of a fair
trial.” United States v. Bagley, 473 U.S. 667, 674 (1985). Therefore, he must demonstrate “a
29
reasonable probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” Kyles v. Whitley, 514 U.S. 419, 433 (1995). Likewise, a
criminal defendant alleging his attorney was unconstitutionally inadequate must show that “any
deficiencies in counsel’s performance [were] prejudicial to the defense,” meaning that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland v. Washington, 466 U.S. 668, 691–92 (1984).
Accordingly, the Court’s tentative view is that to state a due process claim based on the
suppression of witnesses or evidence at his disciplinary hearing, Plaintiff must plead facts
showing that the evidence and testimony the hearing officer suppressed, or that his inmate
assistant failed to marshal, would have been reasonably likely to change the outcome of the
hearing. Accord Sawyer v. Prack, No. 14-CV-1198, 2016 WL 5440596, at *12 (N.D.N.Y. July
29, 2016), adopted, No. 14-CV-1198, 2016 WL 5415790 (N.D.N.Y. Sept. 28, 2016) (dismissing
due process claim because Plaintiff failed to “demonstrate prejudice and non-harmless error from
a disciplinary hearing officer’s refusal to ask that potential witness to participate in the hearing”);
Hinton v. Prack, No. 12-CV-1844, 2014 WL 4627120, at *12 (N.D.N.Y. Sept. 11, 2014)
(dismissing due process claim based on unexplained denial of witnesses “because Plaintiff failed
to allege, in any fashion, how he was prejudiced”).
The issue of who must show prejudice (or lack thereof) will be moot, and the due process
claims will survive, if Plaintiff explains more clearly in his revised amended complaint why the
suppressed evidence could have changed the outcome of his disciplinary hearing. Therefore, the
Court will not decide now whether Plaintiff must plead prejudice to state a viable claim that the
30
hearing officer’s exclusion of witnesses and documents violated the Due Process Clause. It will
assess such claims based on any allegations supporting them in any revised amended complaint.
5.
Access-to-Courts Claim Against Bernier
Plaintiff’s “access to courts” claim against Bernier concerns video footage of Plaintiff’s
disciplinary hearing, including the “off-the-record” conversation with Gutwine. Plaintiff alleges
that he requested copies of the video footage to support his petition for judicial review of the
hearing outcome under Article 78 of the New York Civil Practice Law and Rules, but that
Bernier withheld that footage, Obj. at 13; Am. Compl. at 88, ¶ 136. The state court ultimately
denied Plaintiff’s petition, stating that it “did not find that petitioner[’s] claims that he was
denied the right to call witnesses and present documentary evidence demonstrated a violation of
his due process rights.” Id. ¶ 136(D).
The Constitution guarantees prisoners “a reasonably adequate opportunity to present
claimed violations of fundamental constitutional rights to the courts.” Lewis v. Casey, 518 U.S.
343, 351 (1996). To establish a constitutional claim for denying access to the courts, a plaintiff
must show that the defendant acted deliberately and maliciously, Davis v. Goord, 320 F.3d 346,
351 (2d Cir. 2003), and “hindered” the plaintiff’s efforts to pursue a “non-frivolous” legal claim,
Lewis, 518 U.S. at 353–54. “Depriving someone of an arguable (though not yet established)
claim inflicts actual injury because it deprives [the plaintiff] of something of value—arguable
claims are settled, bought, and sold. Depriving someone of a frivolous claim, on the other hand,
deprives him of nothing at all, except perhaps the punishment of Federal Rule of Civil Procedure
11 sanctions.” Id. at 353 n.3.
31
Plaintiff does not explain how the video footage might have changed the state court’s
conclusion that the exclusion of witnesses and documentary evidence from his hearing was
constitutional. Am. Compl. at 90, ¶ 136(D). Therefore, he does not plausibly allege that Bernier
“hindered” his case in state court. Lewis, 518 U.S. at 353–54. And the conversation Plaintiff
describes in his Amended Complaint did not even “arguably” support his claim that Gutwine was
unconstitutionally biased. Id. Accordingly, even if Bernier withheld the video of that
conversation, she did not violate Plaintiff’s right to access the courts.
6.
Eighth Amendment Medical Indifference Claim Against Michele Byno
Plaintiff’s proposed Amended Complaint would also revive his Eighth Amendment claim
that by withholding Plaintiff’s mental health medication (“Romeron and Celexa”) from October
14 to 30, 2014, Byno was deliberately indifferent to the “substantial risk of serious harm” posed
by Plaintiff’s depression. Obj. at 13; Am. Compl. at 39–43, ¶¶ 81–83.
In its November Order, the Court concluded that withholding Plaintiff’s depression
medication for sixteen days plausibly posed a “substantial risk of serious harm,” but that Plaintiff
had “not pleaded facts suggesting that Byno was aware that withholding . . . medication would
result in [such] an excessive risk to Plaintiff’s health or that [she] acted with the necessary
culpable state of mind.” Nov. Order at 21. Now, Plaintiff alleges that he told Byno at his Upstate
intake on May 3, 2014 “about his previous suicide attempts before arriving at Upstate,” had
“actually . . . just arrived from Downstate C.F. mental health observation cell for trying to hang
himself,” and that he “felt homicidal and suicidal.” Am. Compl. at 41, ¶ 83(A)(2). After Heath
Baker and Marinelli allegedly discontinued Plaintiff’s medical health medication in June 2014,
Plaintiff attempted suicide again, and on September 1, 2014, he told Byno that “my mental health
32
meds being discontinued . . . was a factor for me trying to kill myself.” Id. ¶ 83(A)(4). Moreover,
although Byno had stopped supplying Plaintiff’s pills and told him on October 16, 2014 that they
had been “discontinued,” she told prison administrators that he “ha[d] been receiving [his]
medication on a regular basis” during the same period. Am. Compl. at 39–40, ¶¶ 82,
83(A)(5)–(6); see also Dkt. No. 28-3 at 31 (“Exhibit N”) (letter from New York Office of Mental
Health stating that “nursing” staff at Upstate so indicated).
Byno’s awareness of Plaintiff’s recent history of suicide attempts when Plaintiff was
denied medication, and dissimulation to hide the sixteen-day gap in Plaintiff’s medication in
October 2014, would provide plausible grounds to infer that she possessed the culpable mental
state required to violate the Eighth Amendment. Therefore, Plaintiff’s Eighth Amendment claim
against her is not futile.
7.
Eighth and First Amendment Claims Against Heath Baker
i. Shingles
Plaintiff asserts that in misdiagnosing Plaintiff’s shingles as “stretch marks” in October
2014 and failing to treat them, nurse Heath Baker “was deliberately indifferent to Plaintiff[’s]
serious medical needs” in retaliation for Plaintiff’s filing grievances, which violated his First and
Eighth Amendment rights. Obj. at 12–13 (citing Am. Compl. ¶¶ 77–80 and numerous exhibits).
Plaintiff alleges that “around May 19, 2014,” Baker learned that Plaintiff filed grievances
against him on May 10, 13, and 14 for allegedly denying Plaintiff medical treatment. Am.
Compl. at 36–38, ¶¶ 80(F)(2)–(5), (10); Dkt. No. 28-3 at 12–13 (“Exhibit E”) (grievance review
letter stating that Baker “saw the grievant at sick call on 5/7/14, 5/12/14, 5/14/14, and 5/20/14”).7
7
Plaintiff believes that Baker learned about another grievance Plaintiff filed against
Baker in September 2014. Am. Compl. at 38, ¶ 80(F)(12). He cites a letter stating that “RN
33
Burton, 664 F. Supp. 2d at 367 (noting that grievances are protected activities). As explained
earlier, grievances are protected activities, and courts have found it “plausible that a denial of
medical evaluation, treatment, and adequate pain medication would suffice to deter a similarly
situated individual of ordinary firmness from filing a constitutionally protected grievance against
a prison doctor.” Id. at 367. Therefore, Plaintiff’s allegations against Baker regarding his shingles
satisfy the first two elements of a retaliation claim.
However, Plaintiff’s allegations do not suggest that Baker intentionally mis-diagnosed his
shingles because of the grievance filed five months earlier. True, a “plaintiff can establish a
causal connection that suggests retaliation by showing that [the] protected activity was close in
time to the adverse action.” Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009). But to support
an inference of retaliatory intent on its own, without other evidence, “the [temporal] proximity
must be ‘very close.’” Dhar v. City of New York, 655 F. App’x 864, 866 (2d Cir. 2016) (citing
Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)); compare Hollander v. Am.
Cyanamid Co., 895 F.2d 80, 85–86 (2d Cir. 1990) (holding that there was insufficient evidence
of a “causal nexus” when the only evidence was temporal and there was a three-and-a-half-month
lapse between the complaint and the alleged adverse action) with Espinal, 558 F.3d at 122, 129
(finding lapse of six months supported retaliation claim, where facts suggested that officers
“waited to exact their retaliation at an opportune time” to beat plaintiff, and told him that “this is
what happens to [i]nmates when they submit law suits against us”). And there is reason to
demand a particularly close proximity in this case, where Plaintiff admits that Baker examined
Baker assessed the grievant on 9/10/14 for claims of sexual assault by staff.” Am. Compl. at 38,
¶80(F)(12) (citing Dkt. No. 28-3 at 29 (“Exhibit M”). The fact that the writers knew this
information, which was presumably available in Plaintiff’s medical records, does not suggest
that they informed Baker of Plaintiff’s grievance.
34
the rash but asserts that he mis-diagnosed it. “Determinations made by medical providers within
their discretion are given a ‘presumption of correctness’ when it concerns the care and safety of
patients.” Banks v. Annucci, 48 F. Supp. 3d 394, 409 (N.D.N.Y. 2014). The fact that Baker’s
alleged mis-diagnosis came five months after the grievance is insufficient to raise a “reasonable
expectation” that Plaintiff will discover evidence to overcome that presumption and establish
retaliatory intent. Twombly, 550 U.S. at 556. Therefore, the First Amendment retaliation claim
against Baker is futile.
Given that same “presumption of correctness,” Banks, 48 F. Supp. 3d at 409, the facts in
the proposed Amended Complaint also fail to show that Baker “consciously disregard[ed] a
substantial risk of serious harm” to Plaintiff’s health, Farmer, 511 U.S. at 839, or even that
Plaintiff was denied adequate care, so as to violate the Eighth Amendment. Salahuddin, 467 F.3d
at 279. Even if Baker misdiagnosed Plaintiff’s shingles symptoms, Plaintiff concedes that prison
medical staff treated the virus after four days, Am. Compl. at 33, ¶ 78, and provides no facts
suggesting “that the delay . . . caused or exacerbated the infection, caused him extreme pain, or
caused any permanent harm,” Frith, 203 F. Supp. 3d at 390. As with his infected bite, Plaintiff’s
general statements that the shingles caused “unbearable pain,” Am. Comp. at 33, ¶ 80, in those
four days are insufficient. Gomez, 649 F. App’x at 96; Frith, 203 F. Supp. 3d at 389.
Accordingly, any Eighth Amendment claim based on Baker’s delayed treatment for Plaintiff’s
shingles would fail.
ii. Mental Health
The Objections also reference claims that in May and June, 2014, Baker was deliberately
indifferent to Plaintiff’s mental health needs. Obj. at 10–11; see also Nov. Order at 19–21. The
35
Court previously found that the mental health-related allegations would survive sua sponte
screening if they were not time-barred. Nov. Order at 19. Defendants do not object to the
Magistrate Judge’s finding that the proposed Amended Complaint sets forth a potential basis to
toll the statute of limitations with respect to those claims. Therefore, the Court adopts that
finding.
iii. Rash, Acne, Fungus
Plaintiff also alleges that Baker ignored conditions in “May and June,” which may refer to
Plaintiff’s facial acne, a rash on his thigh, and/or a foot fungus. Obj. at 12; see also Nov. Order at
22. However, he points to no allegations in the Amended Complaint that would show that his
acne, rash, or fungus constituted “serious medical conditions,” as required to support an Eighth
Amendment violation. Nov. Order at 22 (citing Thompson v. Carlsen, No. 08-CV-965, 2010 WL
3584409, at *6 (N.D.N.Y. Aug. 16, 2010)). The facts do not indicate that they were
“‘condition[s] of urgency’ that may result in ‘degeneration’ or ‘extreme pain,’” meaning that they
do not state an Eighth Amendment claim. Chance, 143 F.3d at 702 (citation omitted). Moreover,
although Plaintiff refers to Baker’s actions in “May and June,” 2014, Plaintiff asserts that Baker
decided that the acne, fungus, and rash did not require treatment on May 14, 2014, around five
days before Baker learned of Plaintiff’s grievances against him. Am. Compl. ¶¶ 80(F)(10). Thus,
based on those allegations, Baker’s decisions concerning those physical conditions were not First
Amendment retaliation, either. As such, they fail to state a claim for relief.
36
8.
Supervisory Liability Claims
i. Nancy Smith
Plaintiff claims that Nancy Smith violated his First and Eighth Amendment rights by
failing to correct Baker’s retaliatory indifference to Plaintiff’s acne, rash, fungus, and shingles.
Specifically, Plaintiff asserts that Smith, like Baker, was “deliberate[ly] [indifferent] to
Plaintiff[’s] serious medical needs in retaliation for filing multiple grievances.” Am. Compl. at
35, ¶ 80(F).
To state an Eighth Amendment claim based on a supervisor’s acquiescence in
subordinates’ unconstitutional conduct alleged in a grievance, Plaintiff’s claim must meet the
same elements as it would against a line officer; the Amended Complaint must show that the
supervisor “knew of and disregarded and excessive risk to [Plaintiff’s] heath or safety.” Turkmen
v. Hasty, 789 F.3d 218, 250 (2d Cir. 2015), rev’d on other grounds, Ziglar v. Abbasi, 137 S. Ct.
1843 (2017); see also Zenon v. Downey, No. 18-CV-458, 2018 WL 6702851, at *7 (N.D.N.Y.
Dec. 20, 2018) (discussing supervisory liability in light of Iqbal and Turkman). In addition, the
“constitutional violation complained of in [the] grievance must [have been] ‘ongoing’ . . . such
that the ‘supervisory official who review[ed] the grievance [could] remedy [it] directly.’” Burton,
664 F. Supp. 2d at 360. (citations omitted). “’Receiving post hoc notice does not constitute
personal involvement in the unconstitutional activity and cannot be said to have proximately
caused the damage suffered by the inmate,’ because the violation is not ‘ongoing and the
defendant has [no] opportunity to stop the violation after being informed of it.’” Id. at 361
(citation omitted).
37
As discussed, the failure to treat the skin conditions and fungus, and the delay in treating
the shingles, did not pose a “substantial risk of serious harm” to Plaintiff’s health. Chance,
143 F.3d at 703. Moreover, Plaintiff does not allege that his conditions persisted beyond Smith’s
review of his grievance regarding Baker. Burton, 664 F. Supp. 2d at 360. In any event, “[i]t is
well established that supervisory officials are generally entitled to delegate medical responsibility
to facility medical staffs and are entitled to rely on the opinion of medical staff concerning the
proper course of treatment.” Graham v. Wright, No. 01-CV-9613, 2003 WL 22126764, at *1
(S.D.N.Y. Sept. 12, 2003) (citation omitted). Accordingly, Plaintiff’s proposed claims against
Nancy Smith based on the acne, rash, fungus, and shingles are futile.
As to the retaliation claim, Plaintiff does not list any grievance he filed against Nancy
Smith; his only factual allegation against her asserts that she investigated Plaintiff’s June 9, 2014
grievance against Baker concerning his rash and foot fungus before that grievance was denied.
Dkt. No. 28-3 at 24–25 (“Exhibit K”).6 Plaintiff does not provide any reason to believe she
retaliated against him for that complaint. See R. & R. at 15 (citing cases dismissing claims that
corrections officers retaliated based on complaints against other officers on similar facts); cf.
Williams v. Goord, 111 F. Supp. 2d 280, 290 (S.D.N.Y. 2000) (granting summary judgment
against such a claim even though defendant took alleged adverse action three days after Plaintiff
filed grievance against another officer). Therefore, Plaintiff First Amendment retaliation claim
against Smith also fails.
6
The grievance also complained that Baker was giving Plaintiff “the wrong mental
health pills.” Ex. K at 25. But as indicated earlier, the Court previously concluded that those
claims would survive sua sponte review if shown to be timely and will allow Plaintiff to amend
his complaint to seek to establish their timeliness. Nov. Order at 19; R. &. R. at 21.
38
ii. Donald Uhler
Plaintiff also fails to resuscitate his claim that Uhler violated the Eighth Amendment by
permitting inmate Reeder to “kick and bang” on Plaintiff’s cell in 2016. Nov. Order at 40.
In his Amended Complaint, Plaintiff states that Reeder was “written up for kicking his
door” in July 2014. Am. Compl. At 60, ¶ 104(A). Plaintiff also sent the IGRC a grievance on
September 18, 2014, stating that “for the past four months” Reeder had been “bang[ing] all day
and night depriving [him] of sleep and peace of mind,” and requesting a transfer. Ex. S; Am.
Compl. at 60, ¶ 104(B). The IGRC denied the request, and Uhler affirmed. Dkt. No. 28-3 at 45
(“Exhibit U”); see also Am .Compl. ¶ 104(B)–(C). On January 5, 2016, Plaintiff filed another
grievance reporting that Reeder was “kicking and banging” again. Id. ¶ 103. The IGRC also
denied that grievance and, on January 31, 2016, Plaintiff again appealed to Uhler. Id. On
February 8, Corrections Officer Todd Manly came to Plaintiff’s cell to investigate and heard
Reeder’s banging. Id. However, on March 4, 2016, Uhler affirmed the denial of the request for a
transfer, finding (incorrectly) that there was “no evidence of inmate Reeder banging.” Id. ¶ 104;
see also Nov. Order at 40.
These allegations still fail to establish that Uhler violated Plaintiff’s Eighth Amendment
rights. Like the original Complaint, the Amended Complaint still does not allege that Reeder
continued to deprive Plaintiff of sleep after Uhler reviewed his grievance in March 2016.
Nov. Order at 40. Plaintiff does not contradict his earlier statement that Reeder’s banging
stopped depriving him of sleep on January 27, 2016. Compl. at 32, ¶ 89. Thus, the Court cannot
infer that Uhler had a reasonable opportunity to remedy the unconstitutional conditions after he
39
reviewed Plaintiff’s appeal between January 31 and March 4, 2016. Am. Compl. at 50– 60,
¶¶ 103–04.
Plaintiff argues that Uhler should have prevented Plaintiff from being placed next to
Reeder in the first place because of the complaints concerning Reeder in 2014, “15 months prior”
to the 2016 incident. Am. Comp. at 61, ¶104(C). Perhaps Ulher should have remembered those
2014 complaints, foreseen that Reeder would resume his behavior, and predicted that Plaintiff
would lose sleep if placed next to Reeder again. At most, however, Ulher’s lack of foresight
constitutes negligence—not the criminal recklessness required to state a claim under the Eighth
Amendment. Farmer, 511 U.S. at 835, 839.
Plaintiff does not direct the Court to any other factual allegations suggesting that Uhler
knew of and disregarded an excessive risk to his health or safety. Turkmen, 789 F.3d at 250.
Accordingly, his claims against Uhler are futile.
9.
Sexual Harassment Claims Against Nelson
Plaintiff attempts to reallege that Nelson’s comments at his cell on April 21,
2016—attempting to induce him to expose his penis—violated the Eighth Amendment. “There
has been no case” in the Second Circuit “in which a plaintiff ha[s] established an actionable
[Eighth Amendment] claim of sexual harassment . . . without having physical contact with the
alleged perpetrator, or without, at the very least, alleging egregious sexual conduct.” Holland v.
City of New York, 197 F. Supp. 3d 529, 547 (S.D.N.Y. 2016). Plaintiff argues that Nelson’s
remarks are “egregious” because there were “many incidents of sexual misconduct, including
forceful sexual activity . . . unsolicited touching, and sexual comments” at Upstate, “where
sexual assaults of prisoners was well known but inadequately addressed.” Obj. at 14. As
40
described earlier, the incidents of unprovoked physical violence against Plaintiff, such as the
alleged 2014 sexual assault by Mr. Gokey and other officers, would violate the Eighth
Amendment on their own. Crawford, 796 F.3d at 257–59. However, Plaintiff does not allege that
Nelson was aware of any of these incidents. And even if she was, her alleged remarks on April
21, 2016 would not state a claim. Unlike the physical abuse alleged in Crawford and Boddie,
Nelson’s alleged verbal harassment, though degrading to Plaintiff, does not constitute “severe
and repetitive sexual abuse” and, therefore, is not sufficiently serious to be “cruel and unusual
punishment.” Crawford, 796 F.3d at 256–57; see also Morales v. Mackalm, 278 F.3d 126, 132
(2d Cir. 2002) (affirming dismissal of Eighth Amendment claim where female prison employee
asked plaintiff “to have sex with her and to masturbate in front of her and other female staffers”).
10.
New Claims in Amended Complaint
Plaintiff also seeks to add several claims in his Amended Complaint that do not appear to
have been asserted in his Complaint. See Am. Compl. at 222–36, ¶¶ 289–36. Neither the parties,
nor the Court, nor the Magistrate Judge has addressed whether these claims are plausible. The
Court need not address them here. Plaintiff may attempt to assert them in his revised Amended
Complaint, subject to review by the Magistrate Judge under the standard in Foman,
371 U.S. at 182, and, if necessary, appeal to this Court.
Nevertheless, given the age of this case and the fact that discovery has not yet
commenced, Plaintiff’s revised Amended Complaint, which will be due thirty days from the
filing of this Memorandum-Decision and Order, will be his last opportunity to amend the
Complaint without showing good cause for allowing him to do so. Further motions to amend will
not be freely granted.
41
C. Motion to Show Cause
Plaintiff also filed a motion asserting that defendants Smith, Waterson, Nelson, and
Bernier, should be deemed to have consented to Plaintiff’s Motion to Amend and/or should be
sanctioned because they served Plaintiff their Opposition to the Motion to Amend several days
late. Dkt. No. 35 at 21–25 (“Motion to Show Cause”).7 He asserts that although the response was
due on October 19, 2018, Defendants did not send it to him until October 22, and he did not
receive it until October 25, 2018. Id. at 24.
The Motion to Show Cause is denied. Courts may excuse a late filing “after the time has
expired if the party failed to act because of excusable neglect.’” S&R Dev. Estates LLC v. Town
of Greenburgh, No. 16-CV-8043, 2017 WL 44854, at *2 (S.D.N.Y. Jan. 4, 2017). Four factors
are considered in evaluating excusable neglect: “‘[1] the danger of prejudice to the [non-movant],
[2] the length of the delay and its potential impact on judicial proceedings, [3] the reason for the
delay, including whether it was within the reasonable control of the movant, and [4] whether the
movant acted in good faith.’” Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 366 (2d Cir.
2003) (alterations in original) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship,
507 U.S. 380, 395 (1993)). Plaintiff does not allege that the delay in service prejudiced him—and
the Court finds that it did not. He did not move to file a reply to Defendants’ Opposition, even
though he had approximately six weeks to do so before the Magistrate Judge issued the
Report-Recommendation. L.R. 7.1(b)(2). The short delay in serving the Opposition did not delay
judicial proceedings, and there is no evidence that Defendants acted in bad faith; they did not
7
Although Plaintiff asserts that he submitted the Motion to Show Cause to the
Magistrate Judge on October 29, 2018, Obj. at 17; Mot. to Show Cause at 21, the motion was
not electronically filed until Plaintiff submitted a copy with his Objections. Docket.
42
stand to gain from the short delay in service. While Defendants have not argued that they were
tardy for reasons outside their control, the Court finds that the other factors weigh against levying
sanctions on Defendants or deeming the Motion to Amend unopposed.
That said, Defendants are reminded that they must serve all papers on Plaintiff before the
applicable filing deadlines. L.R. 7.1(b). Plaintiff should bring any future failures to comply with
this rule to the Court’s attention.
V.
CONCLUSION
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 34) is ADOPTED in part and
MODIFIED in part as described in this Memorandum-Decision and Order; and it is further
ORDERED, that the Motion to Dismiss (Dkt. No. 19) is DENIED with respect to
Plaintiff’s Eighth Amendment conditions-of-confinement claim against Randel Smith and his
First Amendment retaliation claim against Nelson, but GRANTED with respect to the Eighth
Amendment medical indifference claim against Waterson; and it is further
ORDERED, that the Motion to Amend (Dkt. No. 28) is DENIED without prejudice.
Plaintiff may renew his Motion to Amend with a revised proposed amended complaint that
alleges only the following claims: (1) the First Amendment retaliation claim against Tracy
Nelson, Denise Bernier, and Roxanne LeClerc; (2) the Eighth Amendment deliberate medical
indifference claims against Sergeants Luc Maynard and Patrick Baker, Officer Richard Winston,
mental health worker John Marinelli, Nurse Heath Baker, and Lieutenant Robert Barkman, and
nurse Michele Byno based on Plaintiff’s mental health needs; (3) the Eighth Amendment
conditions of confinement claims against (a) Maynard, Winston, Officer Adam Gallagher,
43
Officer Brian Fournier, and Sergeant Richard Scott based on unsanitary conditions in Cell 13 in
May 2014; (b) Sergeants Michael Eddy and Laura Gokey, Marinelli, and Randel Smith for
keeping him in Cell 15 next to inmate Reeder, resulting in sleep deprivation, in May 2014; and
(c) Sergeant Randel Smith for placing him in Cell 18 next to inmate Reeder in December 2015;
(4) the Eighth Amendment excessive force claims against Michael Gokey, Sarah Tompkins, and
the unidentified Doe guards who participated in the September 2014 and 2015 assaults on
Plaintiff; (5) the First Amendment retaliation claims against (a) Tompkins and her Doe
accomplices regarding the 2015 assault and false disciplinary report; and (b) Laura Gokey and
Randel Smith regarding inmate Reeder; (6) the Fourteenth Amendment due process claims
against Eric Gutwine and Plaintiff’s Jane Doe inmate assistant regarding his December 2015
disciplinary hearing; and (7) any other claims that the Court has not already dismissed; and it is
further
ORDERED, that Plaintiff shall file any such renewed motion to amend his complaint
within thirty days of the filing date of this Memorandum-Decision and Order; and it is further
ORDERED, that any such renewed motion to amend will be Plaintiff’s final opportunity
to amend his Complaint without a showing of good cause; and it is further
ORDERED, that Plaintiff’s Motion to Show Cause (Dkt. No. 35 at 21–25) is DENIED;
and it is further
ORDERED, that this case continues to be referred to Magistrate Judge Andrew Baxter
for full pretrial and report-recommendations concerning dispositive motions.
IT IS SO ORDERED.
44
DATED:
March 08, 2019
Albany, New York
45
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