DeJesus et al v. Annucci et al
Filing
40
DECISION AND ORDER that Defendants' motion to dismiss (Dkt. No. 25 ) is GRANTED in part and DENIED in part as described within this Decision and Order. The following claims are DISMISSED: (a) Plaintiff Scott's First Claim under the First Amendment to the extent it is asserted against Defendants Holdridge, Crowley, and Gregory; (b) Plaintiff DeJesus' Third and Fourth Claims under the Fourteenth Amendment; (c) Plaintiff Scott's Fifth Claim under the First and/or Fourteen th Amendment; and (d) Plaintiffs' Second Claims of supervisory liability against Defendants Annucci and Kirkpatrick. The following claims SURVIVE this motion to dismiss: (a) Plaintiffs' First Claim under the First Amendment as asserted b y Plaintiffs DeJesus and Emerenciano against all relevant Defendants, and as asserted by Plaintiff Scott to the extent it is asserted against Defendant Houck based on his alleged transfer of Plaintiff; (b) Plaintiff Emerenciano's Third Clai m under the Fourteenth Amendment against Defendant Bell; (c) Plaintiff Emerenciano's Fourth Claim under the Fourteenth Amendment against Defendant Venettozzi; and (d) Plaintiffs' Second Claim of supervisory liability against Defendant Venettozzi. Defendants Annucci, Kirkpatrick, Holdridge, Crowley, and Gregory are DISMISSED from this action. Signed by Chief Judge Glenn T. Suddaby on 9/23/2019. (sal)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
YOLANDA KEYES, Administratrix of the Estate of
Francisco DeJesus; HERRON EMERENCIANO;
and RASHAD SCOTT,
Plaintiffs,
v.
9:18-CV-0372
(GTS/DJS)
ANTHONY ANNUCCI, Acting Commissioner,
New York Dept. of Corrs. and Comm. Supervision;
MICHAEL KIRKPATRICK, Former Superintendent,
Clinton Corr. Facility; DONALD VENETTOZZI,
Director Special Housing and Inmate Discipline;
MICHAEL DIXON, Sergeant; JEFFERY ROCK,
Lieutenant; EARL BELL, Deputy Superintendent of
Security; JERRY KOWALOWSKI, Recreation
Program Leader; DANIEL HOLDRIDGE, Captain;
KAREN CROWLEY, Mailroom Officer; RICHARD
HOUCK, Transfer Coordinator; and CHRISTINE
GREGORY, Inmate Grievance Resolution
Committee Supervisor,
Defendants.
_____________________________________________
APPEARANCES:
OF COUNSEL:
PRISONERS’ LEGAL SERVICES OF NY
Counsel for Plaintiffs
114 Prospect Street
Ithaca, NY 14850
24 Margaret Street, Suite 9
Plattsburgh, NY 12901
ALISSA R. HULL, ESQ.
HON. LETITIA A. JAMES
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, NY 12224
RYAN L. ABEL, ESQ.
GLENN T. SUDDABY, Chief United States District Judge
MICHAEL E. CASSIDY, ESQ.
DECISION and ORDER
Currently before the Court, in this prisoner civil rights action filed by Yolanda Keyes (as
administratrix of the estate of Francisco DeJesus), Herron Emerenciano, and Rashad Scott
(“Plaintiffs”) against Acting Commissioner of the New York State Department of Corrections
and Community Supervision (“DOCCS”) Anthony Annucci, Former Clinton Correctional
Facility Superintendent Michael Kirkpatrick, Special Housing and Inmate Discipline Director
Donald Venettozzi, Sergeant Michael Dixon, Deputy Superintendent of Security Earl Bell,
Recreation Program Leader Jerry Kowalowski, Captain Daniel Holdridge, Mailroom Officer
Karen Crowley, Transfer Coordinator Richard Houck, and Inmate Grievance Resolution
Committee Supervisor Christine Gregory (“Defendants”), is Defendants’ motion to dismiss
Plaintiffs’ Amended Complaint for failure to state a claim upon which relief can be granted.
(Dkt. No. 25.) For the reasons set forth below, Defendants’ motion is granted in part and denied
in part.
I.
RELEVANT BACKGROUND
A.
Plaintiffs’ Amended Complaint
In their Amended Complaint, Plaintiffs assert five claims. (Dkt. No. 17 [Pls.’ Am.
Compl.].) Generally, Plaintiffs’ claims arise from various adverse actions allegedly taken against
them at Clinton Correctional Facility in 2015 and 2016 following the well-publicized escape of
two inmates (Richard Matt and David Sweat) from the facility’s Honor Block, after which
Plaintiffs became members of the prisoner-elected Inmate Liaison Committee (“ILC”).
First, Plaintiffs claim that Defendants retaliated against them in violation of the First and
Fourteenth Amendments. (Id. at ¶ 183.) More specifically, Plaintiff DeJesus alleges that
2
Defendants Dixon and Rock retaliated against him for filing grievances and writing letters about
staff misconduct in that Defendant Dixon issued a misbehavior report against him and Defendant
Rock acted as the hearing officer on that report and found Plaintiff DeJesus guilty of the alleged
misbehavior. (Id. at ¶¶ 52-85.) Plaintiff Emerenciano alleges that Defendants Kowalowski and
Bell retaliated against him for filing grievances, writing letters about staff misconduct, and
speaking up as an ILC representative about prison policies in that Defendant Kowalowski issued
a misbehavior report against him and transferred him to another prison facility and Defendant
Bell acted as the hearing officer on that report and found Plaintiff Emerenciano guilty of the
alleged misbehavior. (Id. at ¶¶ 86-138.) Plaintiff Scott alleges that Defendants Crowley,
Holdridge, Gregory, and Houck retaliated against him for writing letters about staff misconduct,
meeting and corresponding with news organizations and lawyers, and filing grievances in that
Defendant Holdridge ordered a piece of incoming mail that he received to be destroyed,
Defendant Crowley destroyed or ordered the destruction of a second piece of incoming mail,
Defendant Gregory threatened to write Plaintiff up related to his use of the grievance system, and
Defendant Houck ordered his transfer to another prison facility. (Id. at ¶¶ 139-82.)
Second, Plaintiffs claim that Defendants Annucci, Kirkpatrick, Venettozzi, and
Kowalowski are responsible for the alleged constitutional violations committed by the other
Defendants under a theory of supervisory liability. (Id. at ¶ 184.) More specifically, Plaintiffs
argue that these Defendants failed to intervene, stop or mitigate the harm caused, failed to
properly supervise their subordinates in order to prevent retaliation, failed to remedy the alleged
unconstitutional actions despite having notice of such actions, and displayed deliberate
indifference to and/or authorized or ratified the unconstitutional retaliatory actions. (Id.)
3
Third, Plaintiffs DeJesus and Emerenciano claim that Defendants Rock and Bell violated
their rights under the Due Process Clause of the Fourteenth Amendment. (Id. at ¶ 185.) More
specifically, Plaintiff DeJesus alleges that Defendant Rock, and Plaintiff Emerenciano alleges
that Defendant Bell, conspired with the other Defendants and acted in a biased manner in their
capacity as hearing officers by dishonestly suppressing evidence of Plaintiffs’ innocence as to the
misbehavior charges against them and in finding them guilty of those charges without any
evidence to support those findings. (Id.)
Fourth, Plaintiffs DeJesus and Emerenciano claim that Defendant Venettozzi violated
their rights under the Due Process Clause of the Fourteenth Amendment by upholding, affirming,
or modifying the hearing decisions despite having been placed on notice of unconstitutional acts
through earlier reports, appeals, and other sources of information. (Id. at ¶ 186.)
Fifth, Plaintiff Scott claims that Defendants Holdridge and Crowley violated his right to
free speech under the First Amendment and his rights under the Due Process Clause of the
Fourteenth Amendment by destroying or ordering the destruction of two letters he received,
which were allegedly from New York Times reporters. (Id. at ¶ 187.)
B.
Parties’ Briefing on Defendants’ Motion
1.
Defendants’ Memorandum of Law
Generally, in their memorandum of law, Defendants assert five arguments. (Dkt. No. 25,
Attach. 1, at 5-28 [Defs.’ Mem. of Law].) First, Defendants argue that Plaintiffs’ claims against
them in their official capacities are barred by the Eleventh Amendment. (Id. at 5-6.)
Second, Defendants argue that the supervisory liability claims against Defendants
Annucci, Venettozzi, and Kirkpatrick should be dismissed. (Id. at 6-13.) More specifically,
4
Defendants argue the following: (a) as to Defendant Annucci, Plaintiffs have failed to plead
personal involvement because (i) their allegations are based on a single letter from ILC members
(including Plaintiffs) to Annucci in July 2015, (ii) other complaints of allegedly unlawful
conduct were made by them after that letter was sent, and they have not alleged that Defendant
Annucci was made aware of those other complaints, and (iii) Plaintiff Scott has not alleged that
Defendant Annucci knew about the alleged tampering with his mail; (b) as to Defendant
Kirkpatrick, his receipt of three letters from Plaintiffs about various acts of allegedly unlawful
conduct, and a cursory finding that there was no malfeasance as to one of those letters, do not
constitute a basis for personal involvement, and a general awareness that meetings were taking
place about inmate concerns also does not constitute personal involvement; and (c) as to
Defendant Venettozzi, the act of affirming, modifying, or otherwise reviewing the hearing
dispositions against Plaintiffs DeJesus and Emerenciano does not constitute personal
involvement in the alleged violations underlying the hearing decision, and Plaintiffs have not
alleged that Defendant Venettozzi had any opportunity to realistically intervene in the alleged
unconstitutional acts or that he showed deliberate indifference by failing to do so. (Id.)
Third, Defendants argue that Plaintiff DeJesus’ claims should be dismissed. (Id. at 1320.) More specifically, Defendants argue that (a) as to the First Claim, (i) Defendant Dixon’s
issuance of a misbehavior report is not sufficient to support a claim of retaliation because
Plaintiff DeJesus has not alleged facts plausibly suggesting that the report was filed in retaliation
for his engaging in constitutionally protected activity, and (ii) the Complaint lacks allegations
that Defendant Rock conspired to deprive Plaintiff DeJesus of his constitutional rights, including
a lack of allegations related to an agreement or overt act; (b) as to the Second Claim, Plaintiff
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DeJesus has not made any allegations against Defendant Kowalowski; and (c) as to the Third
Claim, Plaintiff DeJesus has not plausibly stated a liberty interest given that he has alleged that
he was confined to keeplock for only 60 days under conditions that were not unusually harsh.
(Id.)
Fourth, Defendants ague that Plaintiff Emerenciano’s claims should be dismissed. (Id. at
20-23.) More specifically, Defendants argue that (a) as to the First Claim, Plaintiff
Emerenciano’s allegations of retaliation are conclusory and do not plausibly suggest a causal
connection between the alleged protected activity and the alleged adverse action, the misbehavior
report and lack of evidence at the related hearing do not plausibly suggest a claim of retaliation,
and he has not included any factual allegations about the conditions of his confinement in SHU
that would plausibly suggest that those conditions were atypical; (b) as to the Second Claim,
Plaintiff Emerenciano does not allege what constitutional harm Defendant Kowalowski had the
opportunity to prevent; and (c) as to the Third Claim, Plaintiff Emerenciano’s allegations are
deficient for the same reasons that the allegations of Plaintiff DeJesus are deficient (as discussed
above). (Id.)
Fifth, Defendants argue that Plaintiff Scott’s claims should be dismissed. (Id. at 23-28.)
More specifically, Defendants argue that (a) as to the First Claim, Plaintiff Scott has (i) failed to
plead that Defendant Holdridge’s alleged censorship of his mail was motivated by Plaintiff
Scott’s engagement in protected activities, (ii) failed to allege that Defendant Crowley was
motivated by Plaintiff Scott’s engagement in protected activities or that she was even aware of
his prior conduct, (iii) failed to allege that Defendant Houck’s alleged decision to transfer
Plaintiff Scott to a different facility was based in retaliation, and (iv) failed to allege sufficient
6
facts to plausibly suggest that Defendant Gregory’s mere threat to write Plaintiff Scott up
constitutes an adverse action; and (b) as to the Fifth Claim, (i) mail from members of the media
is not privileged and Plaintiff Scott had alternative methods of petitioning for the redress of his
grievances including meetings with various officials, (ii) the destruction of two letters is not
sufficient to sustain Plaintiff Scott’s claim, particularly where (as here) each incident involved
different individuals, and (iii) whether Defendants’ actions in destroying Plaintiff Scott’s mail
violated DOCCS policy is not a relevant factor for determining whether those actions violated
Plaintiff Scott’s rights under Section 1983. (Id.)
2.
Plaintiffs’ Opposition Memorandum of Law
Generally, in opposition to Defendants’ memorandum of law, Plaintiffs make seven
arguments. (Dkt. No. 33, at 13-42 [Pls.’ Opp’n Mem. of Law].) First, Plaintiffs argue that they
have sufficiently stated claims for First Amendment retaliation. (Id. at 15-23.) More
specifically, Plaintiffs argue as follows: (a) Plaintiff DeJesus has asserted plausible claims
against Defendants Dixon, Rock, and Kirkpatrick because (i) Defendant Dixon’s statements in
the relevant misbehavior report show a direct improper motivation for that report given that the
report would not have been issued in the absence of Plaintiff DeJesus’ protected activity of
sending a letter outlining unlawful behavior, (ii) Defendant Rock upheld the misbehavior report
and essentially found him guilty of writing a complaint letter, and (iii) Defendant Kirkpatrick’s
office received and opened the same letter underlying the misbehavior report, which, along with
Plaintiff DeJesus’ involvement in ILC and the fact he was contacting outside agencies with
complaints of treatment at the prison, allows a plausible inference that Defendant Kirkpatrick
directed or ordered the issuance of the misbehavior report; (b) Plaintiff Emerenciano has asserted
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plausible claims against Defendants Kowalowski and Bell based on his allegations that
Defendant Kowalowski issued a misbehavior report against him in response to his filing a
grievance against Defendant Kowalowski, and that Defendant Bell upheld that misbehavior
report at the disciplinary hearing in response to Plaintiff Emerenciano’s criticism of the new yard
policy Defendant Bell had developed, as well based on his allegations that he is a member of the
ILC; and (c) Plaintiff Scott has asserted plausible claims against Defendants Holdridge, Crowley,
Gregory, and Houck because (i) as to Defendants Holdridge and Crowley, Plaintiff Scott filed a
grievance related to Defendant Holdridge’s destruction of the first letter, and two incidents of
mail destruction permit an inference of retaliation, (ii) as to Defendant Gregory, Plaintiff Scott
has plausibly alleged that her threat to file a misbehavior report was intended to curtail his ILC
activities and filing of grievances, and (iii) as to Defendant Houck, he has plausibly alleged that
he was transferred by Defendant Houck to a different facility to curtail his ILC activities, and that
there is a close temporal proximity between the transfer and his previous protected activities.
(Id.)
Second, Plaintiffs argue that they have sufficiently stated claims for supervisory liability
against Defendants Annucci, Kirkpatrick, Venettozzi, and Kowalowski. (Id. at 23-30.) More
specifically, Plaintiffs argue the following: (a) all the supervisory Defendants should be deemed
to have knowledge sufficient to impute liability based on the unique circumstances surrounding
the 2015 prison escape, which highlighted the systemic and widespread abuses occurring at
Clinton Correctional Facility; (b) Defendant Annucci was on notice of the alleged violations
based on the July 2015 letter sent to him as well the fact that meetings were occurring with other
prison supervisors, and he was aware of a pattern of problematic behavior by his staff but acted
8
with gross negligence or deliberate indifference in failing to investigate or take remedial steps;
(c) Defendant Kirkpatrick was aware of the allegations of misconduct following the 2015 escape,
ILC meetings about staff misconduct, the July 2015 letter to Defendant Annucci, and news
articles about perceived staff misconduct, and was also aware of the alleged conduct because he
was the highest level of appeal for prison grievances; (d) Defendant Venettozzi was aware of the
alleged violations because he reviewed disciplinary hearings; and (e) Defendant Kowalowski
authored the misbehavior report against Plaintiff Emerenciano and was present at the ILC
meetings where all the Plaintiffs aired their grievances about staff misconduct. (Id.)
Third, Plaintiffs make more specific arguments about how the supervisory Defendants are
liable. (Id. at 31-35.) More specifically, Plaintiffs argue as follows: (a) Plaintiff DeJesus argues
that (i) Defendant Kirkpatrick received letters from Plaintiff DeJesus containing complaints and
grievances, and there was a temporal proximity between his receipt of those letters and the
issuance of the misbehavior report, and (ii) Defendant Venettozzi did more than just rubberstamp the hearing outcome on the misbehavior report because he considered two letters of appeal
and two other letters from Plaintiff DeJesus’ counsel about the retaliatory nature of the hearing,
and therefore there is a reasonable inference of deliberate indifference in Defendant Venettozzi’s
refusal to more adequately review the hearing decision or properly supervise staff; (b) Plaintiff
Emerenciano argues that (i) Defendant Kirkpatrick participated in ILC meetings, was aware of
the ILC members and their complaints, and would have been informed as to why an ILC member
would be transferred to a different facility, (ii) Defendant Kowalowski directly issued the
misbehavior report against Plaintiff Emerenciano in retaliation for ILC activity, and (iii)
Defendant Venettozzi was grossly negligent or deliberately indifferent in affirming the hearing
9
decision, and the fact that he modified the hearing penalty shows that he did not merely rubberstamp that decision; and (c) Plaintiff Scott argues that Defendant Kirkpatrick knew he was a
member of the ILC and had received multiple grievances regarding instances of retaliation that
were not remedied. (Id.)
Fourth, Plaintiffs argue that Plaintiffs DeJesus and Emerenciano have pled a cognizable
liberty interest for purposes of a Fourteenth Amendment claim by alleging facts plausibly
suggesting that they were subjected to atypical and significant hardships during confinement in
keeplock or SHU. (Id. at 36-39.) More specifically, they argue that (a) Plaintiff DeJesus was
confined in keeplock for 60 days, deprived of property, unable to purchase items from the
commissary, use the telephone, or have more than one hourly daily of recreation, lost eligibility
for merit time and early merit release parole (which resulted in four extra months in prison), and
was removed from his position with ILC, and (b) Plaintiff Emerenciano was confined in a SHU
facility for 180 days, deprived of property, was unable to purchase commissary items, use the
telephone, or have more than one hour daily of recreation, and was removed from his position
with the ILC. (Id.) Plaintiffs also argue that they were deprived of their due process right to a
finding of guilt supported by reliable evidence. (Id.)
Fifth, Plaintiffs DeJesus and Emerenciano argue that Defendant Venettozzi violated their
due process rights by affirming the hearing decisions for many of the same reasons they
previously discussed in connection with their supervisory liability claims. (Id. at 39-40.)
Sixth, Plaintiffs argue that they have alleged facts plausibly suggesting that the relevant
Defendants acted with an improper motive in destroying Plaintiff Scott’s mail and that he was
not provided with due process before it was destroyed. (Id. at 40-41.)
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Seventh, Plaintiffs argue that the Eleventh Amendment does not merit dismissal of the
entirety of their claims against Defendants in their official capacities because it does not bar
Plaintiffs’ claims based on injunctive or declaratory relief. (Id. at 41-42.)
3.
Defendants’ Reply Memorandum of Law
Generally, in reply to Plaintiffs’ opposition memorandum of law, Defendants assert six
arguments. (Dkt. No. 39, at 4-11 [Defs.’ Reply Mem. of Law].) First, Defendants argue that the
claims against the supervisory Defendants should be dismissed. (Id. at 4-6.) More specifically,
Defendants argue as follows: (a) as to Defendant Annucci, Plaintiffs’ allegations of a general
awareness of staff malfeasance and pattern of staff behavior is not sufficient to plausibly suggest
that he should have known of the specific acts of wrongdoing alleged here, and broad supervisory
authority is not a sufficient basis on which to impose liability; (b) as to Defendant Kirkpatrick, a
general awareness of a “pervasive pattern of staff misconduct” through reviewing inmate
grievances is not sufficient, and Plaintiffs have made no allegations of knowledge of similar
wrongdoings by the specific Defendants or subordinates in the past; and (c) as to Defendant
Venettozzi, Plaintiffs have not pled any facts other than their own suspicions as to retaliatory
motive for affirming hearing decisions. (Id.)
Second, Defendants argue that the claims against Defendant Dixon should be dismissed
because Plaintiff DeJesus has alleged that the misbehavior report was not based entirely on the
letter he wrote to officials, but also on an interview of him in which he stated he would “have
problems” with certain corrections officers if they attempted to discipline him for any
misconduct, and such statements by Plaintiff DeJesus go beyond his right to file grievances. (Id.
6-8.)
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Third, Defendants argue that the claims against Defendant Rock should be dismissed
because Plaintiff DeJesus has not offered any factual allegations supporting a conspiracy or
plausibly suggesting that he suppressed evidence or otherwise violated Plaintiff DeJesus’ due
process rights at the hearing. (Id. at 8.)
Fourth, Defendants argue that the claims against Defendant Bell should be dismissed
because, as to Plaintiff Emerenciano’s retaliation claim, the Complaint fails to allege how
Plaintiff Emerenciano was deprived of any liberty interest and fails to allege any procedural
defect in the hearing or in having Defendant Bell oversee the hearing at the Upstate Correctional
Facility after Plaintiff Emerenciano’s transfer. (Id. at 8-9.)
Fifth, Defendants argue that the claims against Defendant Kowalowski should be
dismissed because the issuance of a misbehavior report is insufficient adverse action to give rise
to a retaliation claim in the absence of any allegations of fabrication of his testimony. (Id. at 910.)
Sixth, and last, Defendants argue that Plaintiff Scott’s claim related to destruction of his
mail should be dismissed, noting that the Supreme Court case that Plaintiff Scott relies upon to
establish due process procedures related to censoring inmate mail has been limited to outgoing
correspondences only and thus does not apply here. (Id. at 10-11.)
II.
GOVERNING LEGAL STANDARDS
It has long been understood that a dismissal for failure to state a claim upon which relief
can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), can be based on one or both of two grounds:
(1) a challenge to the "sufficiency of the pleading" under Fed. R. Civ. P. 8(a)(2); or (2) a
challenge to the legal cognizability of the claim. Jackson v. Onondaga Cnty., 549 F. Supp.2d
12
204, 211 nn. 15-16 (N.D.N.Y. 2008) (McAvoy, J.) (adopting Report-Recommendation on de
novo review).
Because such dismissals are often based on the first ground, some elaboration regarding
that ground is appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a
pleading contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2) [emphasis added]. In the Court’s view, this tension between
permitting a “short and plain statement” and requiring that the statement “show[]” an entitlement
to relief is often at the heart of misunderstandings that occur regarding the pleading standard
established by Fed. R. Civ. P. 8(a)(2).
On the one hand, the Supreme Court has long characterized the “short and plain” pleading
standard under Fed. R. Civ. P. 8(a)(2) as “simplified” and “liberal.” Jackson, 549 F. Supp. 2d at
212 n.20 (citing Supreme Court case). On the other hand, the Supreme Court has held that, by
requiring the above-described “showing,” the pleading standard under Fed. R. Civ. P. 8(a)(2)
requires that the pleading contain a statement that “give[s] the defendant fair notice of what the
plaintiff’s claim is and the grounds upon which it rests.” Jackson, 549 F. Supp. 2d at 212 n.17
(citing Supreme Court cases) (emphasis added).
The Supreme Court has explained that such fair notice has the important purpose of
“enabl[ing] the adverse party to answer and prepare for trial” and “facilitat[ing] a proper decision
on the merits” by the court. Jackson, 549 F. Supp. 2d at 212 n.18 (citing Supreme Court cases);
Rusyniak v. Gensini, 629 F. Supp. 2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing
Second Circuit cases). For this reason, as one commentator has correctly observed, the “liberal”
notice pleading standard “has its limits.” 2 Moore’s Federal Practice § 12.34[1][b] at 12-61 (3d
13
ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding
that a pleading has failed to meet the “liberal” notice pleading standard. Rusyniak, 629 F. Supp.
2d at 213 n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal, 129
S. Ct. 1937, 1949-52 (2009).
Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme Court reversed an appellate
decision holding that a complaint had stated an actionable antitrust claim under 15 U.S.C. § 1.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). In doing so, the Court “retire[d]” the
famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that “a complaint
should not be dismissed for failure to state a claim 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.”
Twombly, 127 S. Ct. at 560-61, 577. Rather than turn on the conceivability of an actionable
claim, the Court clarified, the "fair notice" standard turns on the plausibility of an actionable
claim. Id. at 555-70. The Court explained that, while this does not mean that a pleading need
“set out in detail the facts upon which [the claim is based],” it does mean that the pleading must
contain at least “some factual allegation[s].” Id. at 555. More specifically, the “[f]actual
allegations must be enough to raise a right to relief above the speculative level [to a plausible
level],” assuming (of course) that all the allegations in the complaint are true. Id.
As for the nature of what is “plausible,” the Supreme Court explained that “[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.” Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949 (2009). “[D]etermining whether a complaint states a plausible claim for
relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial
14
experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged–but it has not
show[n]–that the pleader is entitled to relief.” Iqbal, 129 S. Ct. at 1950 (internal quotation marks
and citations omitted). However, while the plausibility standard “asks for more than a sheer
possibility that a defendant has acted unlawfully,” id., it “does not impose a probability
requirement.” Twombly, 550 U.S. at 556.
Because of this requirement of factual allegations plausibly suggesting an entitlement to
relief, “the tenet that a court must accept as true all of the allegations contained in the complaint
is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by merely conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949. Similarly,
a pleading that only “tenders naked assertions devoid of further factual enhancement” will not
suffice. Iqbal, 129 S. Ct. at 1949 (internal citations and alterations omitted). Rule 8 “demands
more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (citations
omitted).
Finally, a few words are appropriate regarding what documents are considered when a
dismissal for failure to state a claim is contemplated. Generally, when contemplating a dismissal
pursuant to Fed. R. Civ. P. 12(b)(6) or Fed. R. Civ. P. 12(c), the following matters outside the
four corners of the complaint may be considered without triggering the standard governing a
motion for summary judgment: (1) documents attached as an exhibit to the complaint or answer,
(2) documents incorporated by reference in the complaint (and provided by the parties), (3)
documents that, although not incorporated by reference, are “integral” to the complaint, or (4)
15
any matter of which the court can take judicial notice for the factual background of the case.1
III.
ANALYSIS
A.
Whether Plaintiffs’ Claims Against Defendants in Their Official Capacities
Are Barred by the Doctrine of Sovereign Immunity
After careful consideration, the Court answers this question in the affirmative to the
extent Plaintiffs request monetary relief, but in the negative to the extent Plaintiffs request
declaratory or injunctive relief.
“[A]bsent waiver by the State or valid congressional override, the Eleventh Amendment
bars a damages action against a State [or a State official sued in their official capacity] in federal
1
See Fed. R. Civ. P. 10(c) (“A copy of any written instrument which is an exhibit
to a pleading is a part thereof for all purposes.”); L-7 Designs, Inc. v. Old Navy, LLC, No. 10573, 2011 WL 2135734, at *1 (2d Cir. June 1, 2011) (explaining that conversion from a motion
to dismiss for failure to state a claim to a motion for summary judgment is not necessary under
Fed. R. Civ. P. 12[d] if the “matters outside the pleadings” in consist of [1] documents attached
to the complaint or answer, [2] documents incorporated by reference in the complaint (and
provided by the parties), [3] documents that, although not incorporated by reference, are
“integral” to the complaint, or [4] any matter of which the court can take judicial notice for the
factual background of the case); DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.
2010) (explaining that a district court considering a dismissal pursuant to Fed. R. Civ. 12(b)(6)
“may consider the facts alleged in the complaint, documents attached to the complaint as
exhibits, and documents incorporated by reference in the complaint. . . . Where a document is
not incorporated by reference, the court may neverless consider it where the complaint relies
heavily upon its terms and effect, thereby rendering the document ‘integral’ to the complaint. . . .
However, even if a document is ‘integral’ to the complaint, it must be clear on the record that no
dispute exists regarding the authenticity or accuracy of the document. It must also be clear that
there exist no material disputed issues of fact regarding the relevance of the document.”) [internal
quotation marks and citations omitted]; Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d
Cir. 2009) (“The complaint is deemed to include any written instrument attached to it as an
exhibit or any statements or documents incorporated in it by reference.”) (internal quotation
marks and citations omitted); Int’l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72
(2d Cir.1995) (per curiam) (“[W]hen a plaintiff chooses not to attach to the complaint or
incorporate by reference a [document] upon which it solely relies and which is integral to the
complaint,” the court may nevertheless take the document into consideration in deciding [a]
defendant’s motion to dismiss, without converting the proceeding to one for summary
judgment.”) (internal quotation marks and citation omitted).
16
court.” Kentucky v. Graham, 473 U.S. 159, 169 (1985). “Under the doctrine in Ex Parte Young,
‘a plaintiff may avoid the Eleventh Amendment bar to suit and proceed against individual state
officers . . . in their official capacities, provided his complaint (a) alleges an ongoing violation of
federal law and (b) seeks relief properly characterized as prospective.’” Clark v. DiNapoli, 510
F. App’x 49, 51 (2d Cir. 2013) (quoting In re Deposit Ins. Agency, 482 F.3d 612, 618 [2d Cir.
2007]). However, “[a] plaintiff may not use this doctrine to adjudicate the legality of past
conduct,” meaning there must be some “plausible threat of future violations.” Clark, 510 F.
App’x at 51 (citing Papasan v. Allain, 478 U.S. 265, 27-78 [1986]); see W. Mohegan Tribe and
Nation, 395 F.3d at 21 (noting that, “in determining whether the Ex Parte Young doctrine applies
to avoid an Eleventh Amendment bar to suit, ‘a court need only conduct a straightforward inquiry
into whether the complaint alleges an ongoing violation of federal law and seeks relief properly
characterized as prospective’”); see also New York State Corr. Officers & Police Benev. Ass.,
Inc. v. New York, 911 F. Supp. 2d 111, 129 (N.D.N.Y. 2012) (D’Agostino, J.) (“[D]eclaratory
relief is not permitted under Ex Parte Young, when it would serve to declare only past actions in
violation of federal law: retroactive declaratory relief cannot be properly characterized as
prospective.”).
The relevant non-monetary relief requested by Plaintiffs in the Amended Complaint
includes (a) a declaration that the alleged acts are in violation of their rights under federal law,
(b) injunctive relief ordering the defendants and custodians of records to expunge all entries of
the disciplinary hearings and dispositions from Plaintiffs’ records, and (c) injunctive relief
ordering Defendant Annucci to amend DOCCS Directive 4002 to include affirmative protections
for ILC members against retaliatory actions for protected conduct. (Dkt. No. 17, at 31-32 [Pls.’
17
Am. Compl.].)
The Court notes that Defendants have not responded to Plaintiffs’ arguments that the
requested declaratory and injunctive relief is not barred under the Eleventh Amendment, despite
filing a reply memorandum of law in which they responded to other arguments raised in
Plaintiffs’ opposition memorandum of law. However, even if Defendants had responded in
opposition to those arguments, the legal authority and the requests present in Plaintiffs’ Amended
Complaint indicate that not all of Plaintiffs’ bases for relief would be barred by the Eleventh
Amendment.
Plaintiffs’ first basis for non-monetary relief remains under the purview of the Eleventh
Amendment because it does nothing more than ask for a declaration that their rights were
violated as the result of past conduct, and is thus not prospective. See New York State Corr.
Officers & Police Benev. Ass., Inc., 911 F. Supp. 2d at 129 (finding that claims merited dismissal
pursuant to the Eleventh Amendment where plaintiffs sought declaratory relief regarding the
state defendants’ past conduct). Plaintiffs’ other two bases for non-monetary relief, however,
appear to have some prospective grounding, particularly the request for injunctive relief related
to protections for ILC members from retaliation. Consequently, the Court finds that, to the
extent Plaintiffs’ claims are premised on those prospective bases for relief, any claims against
Defendants in their official capacities are not barred by the Eleventh Amendment. However, any
claims against them in their official capacities premised on monetary or retroactive declaratory or
injunctive relief must be dismissed pursuant to the proper application of the doctrine of sovereign
immunity. Additionally, because Plaintiffs have sued Defendants in their individual capacities as
well as their official capacities, the claims against them would also survive on that basis. (Dkt.
18
No. 17, at ¶¶ 9-19 [Pls.’ Am. Compl.].)
B.
Whether Plaintiffs Have Alleged Facts Plausibly Suggesting a Claim for
Retaliation Under the First Amendment
After careful consideration, the Court answers this question largely in the affirmative for
the reasons stated in Plaintiffs’ opposition memorandum of law. (Dkt. No. 33, at 15-23 [Pls.’
Opp’n Mem. of Law].) To those reasons, the Court adds the following analysis.
To state a prima facie case of First Amendment retaliation, a prisoner must allege that (1)
the speech or conduct at issue was protected, (2) the defendant took adverse action against the
plaintiff, and (3) there was a causal connection between the protected speech and the adverse
action. Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004). “Only retaliatory conduct that
would deter a similarly situated individual of ordinary firmness from exercising his or her
constitutional rights constitutes an adverse action for a claim of retaliation.” Davis v. Goord, 320
F.3d 346, 353 (2d Cir. 2003). “In order to satisfy the causation requirement, allegations must be
‘sufficient to support the inference that the speech played a substantial part in the adverse
action.” Davis, 320 F.3d at 354. A number of factors may be considered in determining the
existence of a causal connection between a prisoner’s protected activity and a prison official’s
adverse action, including the following: (1) the temporal proximity between the protected activity
and the alleged retaliatory act; (2) the inmate’s prior good disciplinary record; (3) vindication at a
hearing on the matter; and (4) statements by the defendant concerning his motivation. Reed v.
A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir. 1996); Baskerville v. Blot, 224 F. Supp. 2d
723, 732 (S.D.N.Y. 2002). With regard to the first factor, “[a] plaintiff can establish a causal
connection that suggests retaliatory intent by showing that his protected activity was close in time
19
to the complained-of adverse action.” Burroughs v. Mitchell, 325 F. Supp. 3d 249, 280
(N.D.N.Y. 2018) (Hurd, J.) (citing Espinal v. Goord, 558 F.3d 119, 129 [2d Cir. 2001]).
Adverse action that is taken for both proper and improper reasons may be upheld if the action
would have been taken based on the proper reasons alone. Bennett v. Goord, 343 F.3d 133, 137
(2d Cir. 2003); Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996); Lowrance v. Achtyl, 20
F.3d 529, 535 (2d Cir. 1994).
Plaintiffs have alleged that they engaged in protected activity in the form of filing
grievances, writing letters to prison authorities, and participating in ILC activities. (Dkt. No. 17,
at ¶ 183 [Pls.’ Am. Compl.].) These activities are considered protected activities sufficient to
satisfy the first element. See Dolan v. Connolly, 794 F.3d 290, 295 (2d Cir. 2015) (holding that
“retaliation against a prisoner for voicing or filing grievances on behalf of the prison population
as a member of an inmate grievance body, such as the ILC, violates the right to petition
government for the redress of grievances guaranteed by the First and Fourteenth Amendments.”);
Davis, 320 F.3d at 352-53 (noting that filing of prison grievances is a protected activity); Vega v.
Artus, 610 F. Supp. 2d 185, 206 (N.D.N.Y. 2009) (Suddaby, J.) (recognizing that filing
grievances is a constitutionally protected activity); Wheeler v. Goord, 03-CV-0787, 2005 WL
2180451, at *9 (N.D.N.Y. Aug. 29, 2005) (Peebles, M.J.) (“[P]laintiff’s alleged filing of
grievances and writing of letters to prison authorities . . . constituted protected activity within the
ambit of First Amendment retaliation jurisprudence.”).
In terms of adverse actions, filing false misbehavior reports that result in punishment and
transfer to a different facility have been found sufficient to constitute adverse actions. See
Cabbagestalk v. Hudson, 15-CV-0167, 2016 WL 5404233, at *4 (N.D.N.Y. Aug. 29, 2016)
20
(Hummel, M.J.) (“[A]n inmate’s transfer to a different facility does constitute an adverse action
if done in retaliation for the inmate’s exercise of his or her rights under the First Amendment.”)
(citing Smith v. Levine, 510 F. App’x 17, 21 [2d Cir. 2013]), adopted by 2016 WL 5394734
(N.D.N.Y. Sept. 27, 2016) (Sharpe, J.); Reed v. Doe No. 1, 11-CV-0250, 2012 WL 4486086, at
*5 (N.D.N.Y. July 26, 2012) (Peebles, M.J.) (finding that the “filing of a false misbehavior report
can qualify as an adverse action for the purposes of a First Amendment retaliation” where the
report resulted in a fourteen-day term in keeplock confinement), adopted by 2012 WL 4486085
(N.D.N.Y. Sept. 27, 2012) (McAvoy, J.); Tafari v. McCarthy, 714 F. Supp. 2d 317, 373
(N.D.N.Y. 2010) (Lowe, M.J., Hurd, J.) (finding that a misbehavior report that resulted in SHU
confinement constituted an adverse action).
1.
Plaintiff DeJesus
In the Amended Complaint, Plantiff DeJesus alleges that he made complaints and filed
grievances (both in his individual capacity and as an ILC representative) in November and
December 2015, as well as wrote letters about the illegal actions of various corrections officers to
officials and the State Commission of Correction on January 3, 2016. (Dkt. No. 17, at ¶¶ 53-60,
62-64 [Pls.’ Am. Compl.].) He additionally alleges that, on January 27, 2016, he was issued a
Tier III misbehavior report related to statements made in his January 2016 letter and, as a result,
was sentenced on February 12, 2016, to a period in keeplock confinement. (Id. at ¶¶ 66-69.) As
indicated earlier, these allegations suffice to plausibly suggest both protected activity and an
adverse action.
Turning to the third element of a retaliation claim, Plaintiff DeJesus has alleged facts
plausibly suggesting that there was a causal connection between his various complaints and
21
letters and the misbehavior report that resulted in his confinement in keeplock. More
specifically, the relatively close temporal proximity between when the January 3, 2016, letter was
received by Defendant Kirkpatrick’s office on January 19, 2016, and when the misbehavior
report was issued supports Plaintiff DeJesus’ allegation that the two are related. Plaintiff
DeJesus’ citation to the wording in the relevant portion of that letter and the content of the
misbehavior report plausibly suggest that the relevant Defendants used the content of Plaintiff
DeJesus’ letter and a subsequent interview of him about those complaints as a basis for the
misbehavior report. (Dkt. No. 17, at ¶¶ 64, 66 [Pls.’ Am. Compl.].) Given that the quoted
wording of Plaintiff DeJesus’ letter does not substantiate the specific “threat” identified by the
relevant Defendants in the misbehavior report (e.g., it does not state that Plaintiff DeJesus would
file a civil action in response to “any attempt to discipline him,” but rather only if the corrections
officers engaged in illegal activities such as inflicting bodily harm on him, destroying his
property, and fabricating contraband in his possession), the Court cannot say that Plaintiff
DeJesus has failed to allege facts plausibly suggesting that the relevant Defendants
inappropriately used his statements in this letter as a basis to institute a false misbehavior report
against him.
Consequently, Defendants’ motion to dismiss Plaintiff DeJesus’ First Amendment
retaliation claim is denied.
2.
Plaintiff Emerenciano
In the Amended Complaint, Plaintiff Emerenciano alleges that, “in the months following
the escape,” he filed a grievance against Defendant Kowalowski for a failure to call him out for
ILC meetings, and that, on October 2, 2015, he raised concerns about a new yard policy on behalf
22
of prisoners at an ILC meeting. (Dkt. No. 17, at ¶¶ 97-104 [Pls.’ Am. Compl.].) He additionally
alleges that Defendant Kowalowski issued a false misbehavior report against him on October 5,
2015, for threats of a prison riot that he supposedly made at the ILC meeting of October 2, 2015
(which he alleges he did not make), and that he was sentenced to a period of confinement in SHU
as a result. (Id. at ¶¶ 105, 127.) Again, as indicated earlier, these allegations suffice to plausibly
suggest both protected activity and an adverse action.
Turning to the third element of a retaliation claim, Plaintiff Emerenciano has alleged facts
plausibly suggesting that there was a causal connection between his statements at the ILC
meeting raising the concerns of his fellow prisoners about the new yard policy and the
misbehavior report filed by Defendant Kowalowski. Based on Plaintiff Emerenciano’s
allegations, the report was served on him only three days after his statements at the ILC meeting
and was directly based on those statements. Additionally, as with Plaintiff DeJesus’ allegations,
the alleged content of the misbehavior report conflicts with what Plaintiff Emerenciano alleges
was the content of his statement, a fact that plausibly suggests that the misbehavior report was
based on a false premise. (Id. at ¶¶ 115-17, 121, 124-26.)
Consequently, Defendants’ motion to dismiss Plaintiff Emerenciano’s First Amendment
retaliation claim is denied.
3.
Plaintiff Scott
In the Amended Complaint, Plaintiff Scott alleges that he contacted the New York Times
and legal advocacy organizations about the prison conditions, including meeting with an attorney
from Prisoners’ Legal Services of New York, immediately after which he was informed that a
letter sent to him that he believes to have been from a New York Times reporter had been
23
destroyed by Defendant Holdridge. (Dkt. No. 17, at ¶¶ 144-48 [Pls.’ Am. Compl.].) Plaintiff
Scott filed a grievance related to the destruction of this letter in July 2015, met with various
representatives in his capacity as a ILC representative in August 2015, and filed other grievances
in August 2015 related to price increases on commissary items and seeking reinstatement of the
Honor Block. (Id. at ¶¶ 155-62.) He additionally alleges that, on September 4, 2015, a New York
Times reporter attempted to send him another letter, but that the letter was destroyed by
Defendant Crowley. (Id. at ¶¶ 163-66.) Plaintiff Scott also alleges that he and other ILC
representatives began to write grievances about a new yard policy in September 2015, but that he
was told by Defendant Gregory that “he would be written up for starting a riot because there were
so many grievances submitted by inmates upset about the new yard policy.” (Id. at ¶¶ 167-70.)
Plaintiff Scott alleges that he wrote a letter on September 22, 2015, to Defendants Kirkpatrick
and Annucci regarding Defendant Gregory’s threat and filed a grievance on September 26, 2015,
about a pat-frisk and an attempt by corrections officers to push him down stairs; he was
“abruptly” transferred to a different facility in October 27, 2015. (Id. at ¶¶ 173-78.)
Without determining whether Plaintiff Scott’s contacts with news media and legal
services providers could constitute protected activity, the Court finds that the alleged destruction
of both letters allegedly from New York Times reporters does not constitute an adverse action.
See Rasheen v. Adner, 356 F. Supp. 3d 222, 243-44 (N.D.N.Y. 2019) (Hurd, J.) (finding an
isolated incident of mail tampering did not constitute an adverse action because plaintiff failed to
allege facts plausibly suggesting that he suffered any injury as a result); Tafari v. McCarthy, 714
F. Supp. 2d 317, 347 (N.D.N.Y. 2010) (Hurd, J.) (collecting cases in which claims of mail
tampering did not constitute an adverse action, noting in particular that the plaintiff had alleged
24
only a single instance of mail interference); Islam v. Goord, 05-CV-7502, 2006 WL 2819651, at
*7 (S.D.N.Y. Sept. 29, 2006) (finding that isolated incidents of tampering with plaintiff’s family
and legal mail was not an adverse action because it would not deter an ordinary individual from
exercising his constitutional rights and plaintiff failed to allege he suffered any injury as a result
of the tampering); cf. Marino v. Watts, 12-CV-0801, 2014 WL 1794588, at *6 (N.D.N.Y. May 6,
2014) (Mordue, J.) (noting that, depending on the circumstances, the confiscation of a prisoner’s
legal mail might qualify as an adverse action). The Court notes that Plaintiff Scott has alleged
that he believed both of these letters were from reporters with the New York Times (and thus not
ostensibly legal mail);2 he has also failed to allege that he suffered any harm as a result of the
destruction of the letters. As a result, to the extent Plaintiff Scott bases his First Amendment
retaliation claim on the destruction of the two letters, he has not stated a claim upon which relief
can be granted.
However, Plaintiff Scott has also alleged that he was “abruptly” transferred to a different
facility approximately a month after filing a grievance and writing a letter to Defendants
Kirkpatrick and Annucci. Plaintiff Scott therefore has alleged facts plausibly suggesting both
2
See Mann v. Adams, 846 F.2d 589, 590-91 (9th Cir. 1988) (holding that mail from
the news media is not legal mail); Carriere v. Shabazz, 06-CV-2768, 2008 WL 4243003, at *4
(S.D. Tex. Sept. 10, 2008) (discussing media mail under the heading of non-legal mail); Grigsby
v. Horel, 07-CV-2833, 2008 WL 11422633, at *2 (N.D. Cal. Apr. 28, 2008) (“[M]ail sent to
prisoners from . . . news media . . . falls within the ambit of ‘media mail,’ not ‘legal mail.’”); see
also Williams v. Kobayashi, 18-CV-0336, 2019 WL 97017, at *7 (D. Haw. Jan. 3, 2019) (“[M]ail
to the news media . . . is not legal mail.”); Means v. Mizell, 06-CV-4542, 2006 WL 3544857, at
*6-7 (E.D. La. Nov. 13, 2006) (finding that the plaintiff’s letter to a television weather reporter
seeking help with his pending legal case was not legal mail); Watson v. Cain, 846 F. Supp. 621,
627 n. 3 (N.D. Ill. 1993) (noting that, with regard to a letter to a television station, the Seventh
Circuit has held that mail from an inmate to the news media is not entitled to special status).
25
protected activity and an adverse action in this respect. Additionally, for the purposes of this
motion, the temporal proximity between the protected activity and the alleged adverse action is
sufficiently close to raise a reasonable inference that there was a causal connection between the
two.
Lastly, despite the above, Plaintiff Scott has not alleged an adverse action in the form of
Defendant Gregory’s threat to write Plaintiff Scott up if he or other inmates continued to file
grievances regarding a new yard policy. (Dkt. No. 17, at ¶¶ 169-71 [Pls.’ Am. Compl.].) In
particular, Plaintiff Scott does not allege that Defendant Gregory actually followed through on
her threat or otherwise took action against him in furtherance of that threat. Rather, he alleges
that it was Defendant Houck who effectuated his transfer, and he does not allege that Defendant
Houck was aware of Defendant Gregory’s threat or the history of ILC advocacy or grievance
filing related to that threat, and thus Plaintiff Scott has not alleged any causal connection between
Defendant Gregory’s threat and his transfer to a different facility. This isolated threat, on its
own, without any allegations of retaliatory action connected to it, is not sufficient to plausibly
suggest an adverse action. See Gill v. Tuttle, 93 F. App’x 301, 303-04 (2d Cir. 2004) (finding
that threats to continue to file misbehavior reports against the plaintiff might constitute an
adverse action where the defendant had filed similar misbehavior reports in the past that resulted
in disciplinary confinement, which raised a reasonable expectation that future reports would lead
to additional disciplinary confinement and thus could deter a reasonable inmate); Keitt v. New
York State Dep’t of Corrs. and Cmty. Supervision, 11-CV-0885, 2017 WL 9471826, at *10
(W.D.N.Y. Jan. 4, 2017) (finding that an isolated threat to file a misbehavior report did not
constitute an adverse action where the defendant never carried out that threat); Moore v. Kwan,
26
12-CV-4120, 2016 WL 9022575, at *14 (S.D.N.Y. Mar. 30, 2016) (finding that a threat to issue a
misbehavior report did not qualify as an adverse action); Wellington v. Langendorf, 12-CV-1019,
2013 WL 3753978, at *11 (N.D.N.Y. July 15, 2013) (Scullin, J.) (finding no adverse action
where the defendant made a verbal threat, but did not repeat the threat or take any affirmative
action to suggest that she would do anything to act on the threat).
Consequently, Defendants’ motion to dismiss Plaintiff Scott’s First Amendment
retaliation claim is granted to the extent that the claim is based on the alleged destruction of his
mail by Defendants Holdridge and Crowley and the alleged threat by Defendant Gregory, but
denied to the extent that the claim is based on his alleged transfer to a new facility by Defendant
Houck.
C.
Whether Plaintiffs DeJesus and Emerenciano Have Alleged Facts Plausibly
Suggesting a Claim for a Violation of the Due Process Clause of the
Fourteenth Amendment
After careful consideration, the Court answers this question in the negative as to Plaintiff
DeJesus’ Third Claim under the Fourteenth Amendment for the reasons stated in Defendants’
memoranda of law, but in the affirmative as to Plaintiff Emerenciano’s Third Claim under the
Fourteenth Amendment for the reasons stated in Plaintiffs’ opposition memorandum of law.
(Dkt. No. 25, Attach. 1 [Defs.’ Mem. of Law]; Dkt. No. 33 [Pls.’ Opp’n Mem. of Law]; Dkt. No.
39 [Defs.’ Reply Mem. of Law].) To those reasons, the Court adds the following analysis.
To state a due process claim under 42 U.S.C. § 1983 related to a prisoner’s restricted
confinement within a prison, the plaintiff must show that (1) he possessed an actual liberty
interest, and (2) he was deprived of that interest without being afforded sufficient process.
Burroughs, 325 F. Supp. 3d at 275.
27
1.
Existence of a Liberty Interest
“Prison discipline implicates a liberty interest when it imposes atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life.” Id. To constitute an
“atypical and significant hardship,” “the conditions imposed upon the inmate must be compared
with those imposed upon the rest of the population of the facility as well as those in
administrative and protective confinement.” Id. at 276. The Court should consider both the
duration and the conditions of confinement when assessing the severity of the hardship. Id.
Generally, confinements in SHU for a period of up to 101 days under normal conditions will
generally not constitute an atypical hardship, while confinement for a period of more than 305
days has been considered atypical even under normal conditions. Id. The Second Circuit has
indicated that “the ultimate issue of atypicality is one of law.” Sealey v. Giltner, 187 F.3d 578,
585 (2d Cir. 1999).
Plaintiffs DeJesus and Emerenciano’s claims for due process violations are premised on a
loss of liberty based on their confinement to keeplock or SHU as a result of the allegedly
retaliatory misbehavior reports issued against them. In particular, Plaintiff DeJesus alleges that
he was confined in keeplock for 60 days3 with loss of package, commissary, phone, and
recreation privileges (other than one hour of recreation per day), and with deprivation of access
to his personal property; he also alleges incidental effects of his confinement in keeplock,
including an inability to complete a programming requirement that prevented him from
qualifying for an appearance before the parole board (which in turn resulted in him staying in
3
His imposed punishment had been 90 days, but he received reductions for good
behavior. (Dkt. No. 17, at ¶ 76 [Pls.’ Am. Compl.].)
28
prison for an additional four months), loss of his ILC position, and loss of a preference transfer to
a facility closer to his home. (Dkt. No. 17, at ¶¶ 69-71, 76-82 [Pls.’ Am. Compl.].) Plaintiff
Emerenciano alleges that he was confined in SHU for 150 days4 with loss of access to phone,
package, and commissary privileges; he also alleges incidental effects of his confinement in
SHU, including loss of his ILC position and lost wages from his job assignment. (Id. at ¶¶ 13035.)
The allegations of Plaintiff DeJesus do not plausibly suggest conditions imposing an
atypical and significant hardship. Plaintiff DeJesus’ period of keeplock confinement of 60 days
is within the range generally not considered atypical, and he has failed to allege any additional
abnormal conditions that would make it so. Rather, the conditions alleged by Plaintiff DeJesus
(loss of package, commissary, phone, and recreation privileges, and deprivation of access to his
personal property) are for all intents and purposes the normal losses of privileges incident to the
confinement of any prisoner in administrative segregation.5 Notably, a review of the decisions in
this Circuit indicate that such normal loss of privileges is not, by itself, sufficient to constitute
atypical conditions. See Sealey, 197 F.3d at 589 (finding that a 101-day confinement in SHU
with conditions such as confinement to his cell for 23 hours per day with only one hour for
recreation, a limitation to three showers per week, loss of various privileges, more noise than the
4
His imposed punishment had been 270 days, but this was reduced on appeal to
180 days with 90 days suspended. (Dkt. No. 17, at ¶ 130 [Pls.’ Am. Compl.].)
5
The Second Circuit has noted that, according to regulations for SHU, normal
conditions of confinement include (a) solitary confinement in a cell for 23 hours per day, (2) one
hour of exercise in the prison yard per day, (c) a limitation to two showers per week, (d) denial of
various privileges available to the general population such as work and out-of-cell schooling, (e)
limited visitors, and (f) limited number of books. Palmer v. Richards, 364 F.3d 60, 65 n.3 (2d
Cir. 2004) (quoting N.Y. Comp. Codes R. & Regs. Title 7, §§ 304.1-.14, 305.1-.6 [2003]).
29
general population cells, and a few incidents in which other inmates threw feces at him did not
meet the required duration and conditions to meet the standard for atypicality); Spence v.
Senkowski, 91-CV-0955, 1998 WL 214719, at *3 (N.D.N.Y. Apr. 17, 1998) (McCurn, J.)
(finding that the 180 days that plaintiff spent in SHU, where he was subjected to numerous
conditions of confinement that were more restrictive than those in the general population, did not
constitute atypical and significant hardship in relation to ordinary incidents of prison life);
accord, Horne v. Coughlin, 949 F. Supp. 112, 116-17 (N.D.N.Y. 1996) (Smith, M.J.) (involving
180 days in SHU under numerous conditions of confinement that were more restrictive than
those in general population).
The Court is not convinced by Plaintiff DeJesus’ argument that the ramifications of his
confinement in administrative segregation (including loss of ILC positions, loss of eligibility for
early merit release, and loss of preference transfers) are conditions of confinement for the
purposes of this liberty interest analysis. The Court notes in particular that Plaintiff DeJesus has
not cited any legal authority in which a court has so considered such facts. (Dkt. No. 33, at 36-38
[Pls.’ Opp’n Mem. of Law].)
Although this is a motion to dismiss and Plaintiffs therefore have not yet had the
opportunity to present evidence of the conditions of their confinement, the Court finds that
Plaintiff DeJesus’ complete failure to allege any conditions of confinement beyond the norm for
keeplock or SHU confinement, coupled with the fact that his confinement was for 60 days, merits
a finding that he has not alleged facts plausibly suggesting a liberty interest to support his due
process claim. See Cole v. New York State DOCCS, 14-CV-0539, 2016 WL 5394752, at *19
(N.D.N.Y. Aug. 25, 2016) (Peebles, M.J.) (noting that, under the guidance of the Second Circuit,
30
“when the duration of restrictive confinement is less than 101 days, proof of ‘conditions more
onerous than usual’ is required”), adopted by 2016 WL 5374125 (N.D.N.Y. Sept. 26, 2016)
(Sannes, J.).
Defendant Emerenciano’s claim is somewhat different in that, although he also alleged
facts suggesting normal SHU conditions, his term of confinement of 150 days is in the
intermediate range between what the Second Circuit and other courts have found to be either
acceptable or not acceptable with normal conditions. Because of the extended nature of the
period of confinement, the Court finds that a closer consideration of the conditions of
confinement and the circumstances is warranted to determine whether even the mostly normal
conditions alleged would be considered to impose an atypical and significant hardship.
Therefore, the Court declines to dismiss Plaintiff Emerenciano’s due process claim on the basis
of the existence of a liberty interest at this stage.
For the above reasons, Defendants’ motion to dismiss Plaintiffs’ Third Claim is granted
as to Plaintiff DeJesus, but denied as to Plaintiff Emerenciano.
2.
Deprivation of a Liberty Interest
“An inmate also has a due process right to a hearing before he may be deprived of a
liberty interest on the basis of a misbehavior report,” which requires that there must be “some
evidence” to support the sanction imposed in that hearing; this standard is “extremely tolerant
and is satisfied if there is any evidence in the record that supports the disciplinary ruling.” Diaz,
2010 WL 1133074, at *6. Having established that Plaintiff Emerenciano has alleged facts
plausibly suggesting that he possesses a liberty interest, the Court must also assess whether he
has alleged facts plausibly suggesting that the misbehavior report and subsequent hearing
31
deprived him of that liberty interest.
Plaintiff Emerenciano alleges, in relevant part, that (a) Defendant Bell presided over his
hearing on the misbehavior charges despite being the promulgator of the policy Plaintiff
Emerenciano was challenging at the ILC meeting that led to misbehavior report, (b) it was
irregular for Defendant Bell, a member of the staff at Clinton Correctional Facility, to preside
over a hearing at Upstate Correctional Facility (to which Plaintiff Emerenciano had been
transferred), (c) Plaintiff Emerenciano and five witnesses testified on his behalf in a way that
contradicted the misbehavior report, (d) Defendant Bell refused to allow anyone to question
Sergeant Hutti or Defendant Kowalowski as to why Defendant Kowalowski failed to
immediately alert staff if he believed Defendant Emerenciano’s statements constituted threats of
an impending prisoner riot, and (e) Defendant Kowalowski did not provide any testimony
indicating that Plaintiff Emerenciano’s statements were actually threatening. (Dkt. No. 17, at ¶¶
108, 110-26, [Pls.’ Am. Compl.].)
Based on these allegations, the Court finds that Plaintiff Emerenciano has alleged facts
plausibly suggesting that there was not the minimum amount of evidence required to support the
disciplinary ruling against him. Consequently, Defendants’ motion to dismiss Plaintiff
Emerenciano’s Third Claim for a violation of the Fourteenth Amendment due process claim
against Defendant Bell is denied.
Because Plaintiffs DeJesus and Emerenciano’s Fourth Claim under the Fourteenth
Amendment is asserted against Defendant Venettozzi for his actions in supervising the
Defendants who conducted the misbehavior report disciplinary hearings, it is discussed below in
Part III.E. of this Decision and Order.
32
D.
Whether Plaintiffs Have Alleged Facts Plausibly Suggesting a Claim for
Violation of Plaintiff Scott’s Free Speech Rights Under the First Amendment
and/or Deprivation of Property Under the Fourteenth Amendment
After careful consideration, the Court answers this question in the negative for the
reasons stated in Defendants’ memoranda of law. (Dkt. No. 25, Attach. 1, at 24-28 [Defs.’ Mem.
of Law]; Dkt. No. 39, at 10-11 [Defs.’ Reply Mem. of Law].) To those reasons, the Court adds
the following analysis.
Prisoners have a limited right to send and receive mail, and legal mail is entitled to
greater protection than nonlegal mail. Wesolowski v. Washburn, 615 F. Supp. 2d 126, 129
(W.D.N.Y. 2009) (citing Johnson v. Goord, 445 F.3d 532, 534 [2d Cir. 2006]; Davis v. Goord,
320 F.3d 346, 351 [2d Cir. 2003]). “[I]n order to establish a First Amendment claim for
interference with incoming, non-legal mail, an inmate must show a pattern and practice of
interference that is not justified by any legitimate penological concern.” Williams v. Lane, 13CV-0965, 2016 WL 4275738, at *2 (N.D.N.Y. Aug. 15, 2016) (Sannes, J.). Interference with incoming and non-legal mail can generally be justified by a general security interest. Cancel v.
Goord, 00-CV-2042, 2001 WL 303713, at *5-6 (S.D.N.Y. Mar. 29, 2001) (citing Davidson v.
Scully, 694 F.2d 50, 53 [2d Cir. 1982]).
The Court finds that Plaintiff Scott has not alleged facts plausibly suggesting a First
Amendment claim based on free speech rights. The Amended Complaint acknowledges that (a)
the incoming letters that Plaintiff Scott alleges were destroyed by the relevant Defendants were
from a New York Times reporter, and he has made no allegations to even suggest (much less
plausibly) that these letters were legal mail, (b) there were only two instances of interference with
his mail, and (c) the facility’s stated reason for destruction of the first letter was based on security
33
concerns. (Dkt. No. 17, at ¶¶ 148, 151, 156, 163 [Pls.’ Am. Compl.].) Generally, two isolated
instances of mail tampering do not plausibly suggest a pattern or practice of interference. See
Williams, 2016 WL 4275738, at *2 (adopting the magistrate judge’s findings that three alleged
incidents of interference with nonlegal mail were insufficient to establish a pattern or practice)
(emphasis added); Cancel, 2001 WL 303713, at *6 (finding that a single instance of withholding
incoming non-legal mail did not establish a pattern or practice of interference, as well as that two
instances of opening incoming legal mail did not indicate ongoing activity) (emphasis added).
Additionally, Plaintiff Scott’s own allegations admit that prison officials provided a legitimate
penological concern in the form of a general security interest to support the destruction of at least
the first letter; and, given that the second letter is alleged to have come from the same or similar
source, the Court cannot say that, in the absence of any contrary allegations, that reason would
not apply also to the second letter.
Plaintiff Scott also claims that the destruction of his mail violated his due process rights
under the Fourteenth Amendment. In particular, Plaintiff argues that Procunier v. Martinez, 416
U.S. 396 (1974), imposes certain procedures, including appropriate notice, a reasonable
opportunity to challenge the determination, and an ultimate determination by a disinterested
party, before a prisoner’s mail can be censored. (Dkt. No. 33, at 40-41 [Pls.’ Opp’n Mem. of
Law].) However, as Defendants argue, Procunier was limited to regulations concerning outgoing
correspondences by the Supreme Court in Thornburgh v. Abbott, 490 U.S. 401 (1989), which
found that incoming mail was instead subject to a standard of whether the regulations are
reasonably related to legitimate penological interests. Thornburgh, 490 U.S. at 404-14. As has
already been discussed, Plaintiff Scott has acknowledged through his allegations that the relevant
34
Defendants explicitly cited security concerns related to the destruction of the first letter, and
Plaintiff Scott otherwise offers no factual allegations plausibly suggesting that Defendants’
destruction of mail from a reporter was not neutral (i.e., that other inmates were permitted to
receive such correspondence). See Thornburgh, 490 U.S. at 415 (noting that, where distinctions
are drawn between different incoming publications based on their potential security implications,
such action is neutral). Consequently, Plaintiff Scott’s reliance on Procunier is misplaced.
Additionally, neither a negligent nor intentional deprivation of a prisoner’s property can
be the basis of a constitutional claim if there are sufficient post-deprivation remedies to address
the claim. Burroughs, 325 F. Supp. 3d at 275 (dismissing Fourteenth Amendment claim related
to property loss for failure to state a claim because plaintiff had not alleged that adequate postdeprivation remedies to recover the value of his property were unavailable); accord, Koehl v.
Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996). Here, Plaintiff Scott has not alleged that he lacked any
post-deprivation remedy; rather, he acknowledges that he was able to (and did) file a grievance
related to the destruction of the first letter. Plaintiff Scott therefore has not alleged facts
plausibly suggesting a procedural due process violation.
To the extent Plaintiff Scott asserts a substantive due process claim based on a liberty
interest, “to establish a violation of a prisoner’s right to the “free flow of incoming and outgoing
mail,” he must show that “prison officials ‘regularly and unjustifiably interfered with the
incoming legal mail.’” Rasheen, 356 F. Supp. 3d at 234 (quoting Davis v. Goord, 320 F.3d 346,
351 [2d Cir. 2003]). This argument must fail for the same reasons as his First Amendment free
speech claim failed in that two incidents of mail tampering, one of which was explicitly based on
security concerns, do not constitute a regular and unjustified interference with his mail, and the
35
mail in question was not legal mail, but less-protected nonlegal mail.
Lastly, to the extent that Plaintiff Scott argues that Defendants’ destruction of his mail
violated a DOCCS directive, “a Section 1983 claim brought in federal court is not the appropriate
forum to raise violations of prison regulations.” Rasheen, 356 F. Supp. 3d at 236; see also Doe
v. Conn. Dep’t. of Child & Youth Servs., 911 F.2d 868, 869 (2d Cir. 1990); Patterson v.
Coughlin, 761 F.2d 886, 891 (2d Cir. 1985).
For all of the above reasons, Plaintiff Scott’s Fifth Claim under the First and/or
Fourteenth Amendments is dismissed.
E.
Whether Plaintiffs Have Alleged Facts Plausibly Suggesting the Supervisory
Liability of Defendants Annucci, Kirkpatrick, and Venettozzi6
After careful consideration, the Court answers this question in the negative as to
Defendants Annucci and Kirkpatrick for the reasons stated in Defendants’ memoranda of law,
but in the affirmative as to Defendant Venettozzi for the reasons stated in Plaintiffs’ opposition
memorandum of law. (Dkt. No. 25, Attach. 1 [Defs.’ Mem. of Law]; Dkt. No. 33 [Pls.’ Opp’n
Mem. of Law]; Dkt. No. 39 [Defs.’ Reply Mem. of Law].) To those reasons, the Court adds the
following analysis.
“[I]n order to establish a defendant’s individual liability in a suit brought under § 1983, a
plaintiff must show, inter alia, the defendant’s personal involvement in the alleged constitutional
6
The Court notes that, although Plaintiffs also asserted this claim against
Defendant Kowalowski, it is not apparant that Defendant Kowalowski acted in a supervisory
capacity. Rather, Plaintiff Emerenciano’s allegations against Defendant Kowalowski involve
Defendant Kowalowski’s own actions in filing a misbehavior report against him without any
reference to the involvement of subordinate officers. (Dkt. No. 17, at ¶¶ 95-105 [Pls.’ Am.
Compl.].) The fact that Defendant Kowalowski supervised the ILC (a group comprised of
elected prisoners) does not plausbily suggest he was acting as a supervisor for the purposes of
supervisory liability.
36
deprivation.” Rasheen, 356 F. Supp. 3d at 233 (quoting Grullon v. City of New Haven, 720 F.3d
133, 138 [2d Cir. 2013]). Where the defendants are supervisory officials, “a mere linkage to the
unlawful conduct through the prison chain of command (i.e., under the doctrine of respondeat
superior) is insufficient to show his or her personal involvement in that unlawful conduct.” Id.
(citing Polk Cnty. v. Dodson, 454 U.S. 312, 325 [1981]; Richardson v. Goord, 347 F.3d 431, 435
[2d Cir. 2003]).
The Second Circuit has previously indicated that supervisory defendants may be
considered personally involved only if they “(1) directly participated in the alleged constitutional
violation, (2) failed to remedy that violation after learning of it through a report or appeal, (3)
created, or allowed to continue, a policy or custom under which the violation occurred, (4) had
been grossly negligent in managing subordinates who caused the violation, or (5) exhibited
deliberate indifference to the rights of inmates by failing to act on information indicating that the
violation was occurring.” Rasheen, 356 F. Supp. 3d at 233 (citing Colon v. Coughlin, 58 F.3d
865, 873 [2d Cir. 1995]). “In addition to satisfying one of these requirements, a plaintiff must
also establish that the supervisor’s actions were the proximate cause of the plaintiff’s
constitutional deprivation.” Raspardo v. Carlone, 770 F.3d 97, 116 (2d Cir. 2014).
The Supreme Court’s decision in Iqbal has raised the question of whether all of the Colon
factors continue to be viable. Montanez v. City of Syracuse, 16-CV-0550, 2019 WL 315058, at
*17 (N.D.N.Y. Jan. 23, 2019) (Sannes, J.). Neither the Second Circuit nor the Supreme Court
have made any findings on this issue. Courts within the Second Circuit have taken various
approaches post-Iqbal, from finding that only the first and third factors remain viable, to
continuing to apply all factors in the absence of Second Circuit guidance, to considering the
37
specific constitutional provision underlying the claim and applying all the Colon factors to claims
that rely on a standard of unreasonable conduct or deliberate indifference but declining to apply
all of them where the claim requires instead a showing of discriminatory intent. See Montanez,
2019 WL 315058, at *17-18 (collecting cases) (adopting the specific constitutional provision
approach and applying all the Colon factors to the plaintiff’s Fourteenth Amendment claims
because they did not require a showing of discriminatory intent); Carpenter v. Apple, 15-CV1269, 2017 WL 3887908, at *9-10 (N.D.N.Y. Sept. 5, 2017) (Suddaby, C.J.) (noting that the
majority of district courts have continued to apply all of the Colon factors “where the
constitutional violation at issue does not require a showing of discriminatory intent” and
adopting that majority approach); Marom v. City of New York, 2016 WL 916424, at *15
(S.D.N.Y. 2016) (reasoning that Iqbal supported the specific constitutional provision approach,
and finding that all the Colon factors might be viable for false arrest and excessive force claims
that were based on a reasonableness standard, but that the second, fourth, and fifth factors would
not apply to a First Amendment retaliation claim because such claim contains an intent
requirement).
The Court agrees with the specific constitutional provision approach discussed above
because it is the most consistent with the guidance provided in Iqbal. See Iqbal, 556 U.S. at 676
(noting that, “[t]he factors [related to whether a government official’s individual actions violated
the Constitution] necessary to establish a Bivens violation will vary with the constitutional
provision at issue,” discussing that the First and Fifth Amendments require that the official acted
with a discriminatory purpose, and rejecting the argument that supervisors should be held liable
on such claims merely because they knew of a subordinate’s discriminatory purpose). The Court
38
will therefore consider all of the Colon factors as to Plaintiffs’ claims under the Fourteenth
Amendment, but will only apply the first and third factors as to Plaintiffs’ claims under the First
Amendment.
Additionally, the Court is not persuaded that it must follow the direction of cases cited by
Plaintiffs in which claims against supervisory personnel were allowed to proceed based on the
circumstances following the well-publicized June 2015 prison escape at Clinton Correctional
Facility. In particular, U.S. District Judge Mae A. D’Agostino of this District noted in Coleman
v. Cuomo that the decision to allow those claims to proceed was based not only on the
circumstances following the escape, but also on “the allegations and documentary evidence
showing potential widespread abuses and similar conduct” within Clinton Correctional Facility.
Coleman v. Cuomo, 18-CV-0390, 2019 WL 257933, at *4 (N.D.N.Y. Jan. 18, 2019)
(D’Agostino, J.). Also notable is the fact that much of the alleged conduct in Coleman occurred
just days after the prison escape on June 6, 2015, while the events giving rise to the claims in this
action occurred in July 2015 or later months. Additionally, Alexander v. Cuomo is
distinguishable from this case because, in addition to the circumstances of the prison escape, the
plaintiff in that case had included factual allegations plausibly suggesting that dozens of other
inmates had reported experiences similar to those alleged by the plaintiff, and a report of
September 4, 2015, documented similar experiences. Alexander v. Cuomo, 17-CV-0309, 2018
WL 2041576 (N.D.N.Y. Feb. 26, 2018) (Sannes, J.). By contrast, Plaintiffs in this case have
made general allegations that (1) prisoners made complaints of staff misconduct, (2) a letter was
submitted by the ILC in July 2015 related to assaults on prisoners, destruction of property,
elimination of incentive programs, restriction of telephone use, destruction of grievances, and
39
financial impropriety, (3) a meeting was held to discuss that letter, and (4) the New York Times
and local newspapers reported staff abuse. (Dkt. No. 17, at ¶¶ 33-34, 39-44 [Pls.’ Am. Compl.].)
Other than Plaintiff Scott’s allegations that his mail was destroyed, none of these alleged
complaints involve conduct similar to what Plaintiffs reports experiencing (i.e., the retaliatory
imposition of keeplock or SHU detainment and transfer to different facilities for filing grievances
or acting in the capacity as an ILC representative). The only allegation specifically related to
such similar conduct is Plaintiffs’ allegation that the number of ILC members in attendance at
meetings fell from 11 on June 3, 2015, to three in April 2016, because, “upon information and
belief,” Defendants and other DOCCS staff had issued “unwarranted misbehavior reports,
unscheduled transfers, and other retaliatory actions” against ILC representatives. (Id. at ¶¶ 4647.) The Court finds that such allegations do not, as a whole, constitute a sufficient basis on
which to reasonably infer that Defendants Annucci, Kirkpatrick, and Venettozzi had the requisite
knowledge of the abuses relevant to this action by simply virtue of the circumstances surrounding
the June 2015 prison escape. The Court will of course consider the totality of the alleged factual
circumstances in making its determination, including the environment created in the aftermath of
the prison escape; but it declines to afford those circumstances the nearly determinative weight
that Plaintiffs appear to be requesting. (Dkt. No. 33, at 25-26 [Pls.’ Opp’n Mem. of Law].)
1.
First Amendment Retaliation Claims
As discussed above, because a retaliation claim under the First Amendment requires a
showing of discriminatory intent, supervisory liability will be imposed only if Plaintiffs have
alleged in the Amended Complaint that the officials either (a) directly participated in the alleged
constitutional violation, or (b) created, or allowed to continue, a policy or custom under which
40
the violation occurred. As a result, Plaintiffs’ arguments related to gross negligence and
deliberate indifference are rejected.
In the Amended Complaint, Plaintiffs allege that their Second Claim is based on
Defendants Annucci, Kirkpatrick, and Venetozzi’s actions in “failing to intervene, stop, and/or
mitigate the harm suffered by [Plaintiffs] and properly supervise the ILC to prevent inmates in
general and [Plaintiffs] from being retaliated against for utilizing the grievance process and for
actions taken while serving as an ILC representative, and failing to otherwise remedy such
wrongs despite having been placed on notice of such practices, wrongs, and unconstitutional acts
and violation by earlier reports, appeals, and other sources of information.” (Dkt. No. 17, at ¶
184 [Pls.’ Am. Compl.].)
As to creating or allowing a policy or custom, Plaintiffs have not alleged facts plausibly
suggesting any policy or custom of punishing ILC members for filing grievances or otherwise
advocating for prisoners. Plaintiffs allege that the number of ILC members present at ILC
meetings dropped from 11 on June 3, 2015, to only three at a meeting in April 2016; and they
allege that, “upon information and belief,” this decrease was the result of retaliatory actions
against ILC members. (Dkt. No. 17, at ¶¶ 46-48 [Pls.’ Am. Compl.].) However, even accepting
the allegation related to the reduction in numbers as true, as the Court must on a motion to
dismiss, Plaintiffs have not asserted any factual allegations to support their bare assertion made
on information and belief that this reduction was the product of retaliation for those members’
ILC activities (apart from the allegations related to the alleged constitutional violations
committed specifically against them as Plaintiffs, which are based on more than just their status
as ILC members).
41
Plaintiff assert generally that eleven ILC members authored a letter to Defendant Annucci
on July 12, 2015, in which they (a) requested a meeting outside the presence of employees of
Clinton Correctional Facility, and (b) stated concerns about assaults on prisoners, destruction of
prisoner property, elimination of incentive programs, the restriction of telephones, destruction of
grievances, and financial impropriety with the Inmate Benefit Fund. (Dkt. No. 17, at ¶¶ 36-40
[Pls.’ Am. Compl.].) This letter resulted in meetings between ILC members, a New York
Assemblyman, the Executive Director of Prisoners’ Legal Services, and the Correctional
Association of New York; Plaintiffs do not allege that Defendant Annucci participated in these
meetings. (Id. at ¶¶ 40-41.) Plaintiff DeJesus alleges that he sent a letter to Defendant
Kirkpatrick on January 4, 2016, regarding retaliatory actions by two corrections officers (not
involved in this action) including verbal harassment, threats of harm and placement in solitary
confinement, and theft of prisoners’ food for grievances that had been filed in response to their
actions in prohibiting the inmates from playing dominoes, as well as a letter of January 3, 2016,
to the State Commission of Corrections related to retaliation for those same grievances, which
also ended up being sent to Defendant Kirkpatrick. (Id. at ¶¶ 58-59, 63-65 [Pls.’ Am. Compl.].)
Plaintiff Emerenciano alleges that he reported malfeasance by corrections staff in the July 2015
letter and raised issues about staff assaults and abuse of authority in various meetings, filed a
grievance on his own behalf against Defendant Kowalowski when he was not called out for ILC
meetings on multiple occasions, and opposed a yard policy requiring inmates to sit on the ground
for thirty minutes; he alleges that these actions resulted in both his transfer to another facility and
a misbehavior report. (Id. at ¶¶ 87-93, 100-05.) He also alleges that his appeal of the
punishment resulting from the misbehavior report was made to Defendant Venettozzi. (Id. at ¶¶
42
129-30.) Plaintiff Scott alleges that he reported malfeasance by corrections staff in the July 2015
letter, contacted the New York Times about staff assaults on prisoners in the wake of the prison
escape, sent letters to legal advocacy organizations, met with an attorney from Prisoners’ Legal
Services of New York, filed grievances related to the destruction of his mail, the increase in the
price of commissary items without putting the matter to the ILC, seeking reinstatement of the
Honor Block to the prison, and the use of excessive force, and wrote a letter to Defendants
Kirkpatrick and Annucci on September 22, 2015, regarding a threat of retaliation against him if
he filed grievances related to a new yard policy; he alleges that he was abruptly transferred to
another facility in retaliation for these actions. (Id. at ¶¶ 142-45, 155-62, 167-76.)
As to Defendant Annucci, the only alleged involvement is that (a) he was the recipient of
the July 2015 letter sent by the ILC members and he was aware of both this letter and the
resulting meetings (though he did not attend those meetings), (b) he was the recipient of a letter
from Plaintiff Scott about being threatened with retaliation over the filing of grievances, and (c)
he was the recipient of a letter from Plaintiffs’ counsel on or around March 20, 2016, regarding
“much of the retaliation described in the complaint.” As already discussed above, the July 2015
letter is not alleged to discuss conduct of the same or similar nature as is generally alleged in the
Amended Complaint and, as a result, does not plausibly suggest that Defendant Annucci was
aware of the alleged policy or custom of retaliation against inmates for ILC involvement. The
March 2016 letter alleged to have been sent by Plaintiffs’ counsel also does not plausibly suggest
that Defendant Annucci was aware of any such policy or custom because Plaintiffs’ allegation
that the letter discussed “much of the retaliation described in the complaint” is too vague to
describe what information about specific incidents that letter supposedly relayed. The remaining
43
letter from Defendant Scott allegedly described one incident of a threat made against Defendant
Scott, which does not plausibly suggest a widespread policy or custom. The Court notes that, as
a general matter, “the mere receipt of letters protesting unconstitutional conduct is insufficient to
allege personal involvement.” Long v. Crowley, 09-CV-0456, 2010 WL 5129102, at *1
(W.D.N.Y. Dec. 10, 2010); see Chambers v. Wright, 05-CV-9915, 2007 WL 4462181, at *3
(S.D.N.Y. Dec. 19, 2007) (finding that a supervisor’s receipt and denial of a grievance was
insufficient to establish personal involvement). Additionally, Plaintiffs do not allege that
Defendant Annucci actually read these letters or made any attempt to investigate them. See
Bennett v. Columbe, 16-CV-0653, 2017 WL 6049238, at *4 (N.D.N.Y. Oct. 17, 2017) (Hummel,
M.J.) (finding personal involvement had not been adequately pled where the plaintiff did not
allege that the letters were sent to the proper address by appropriate means, that the defendant
received the letters and read them, or that he personally took action to investigate the letters),
adopted by 2017 WL 606904 (N.D.N.Y. Dec. 6, 2017) (Sannes, J.). Consequently, the Court
finds that Plaintiffs have failed to allege facts plausibly suggesting that Defendant Annucci was
personally involved in any First Amendment violation based on direct involvement or allowance
of a policy or custom.
As to Defendant Kirkpatrick, Plaintiffs variously allege that they sent him letters
outlining incidents of retaliation, that he responded that there was “no evidence of staff
malfeasance” as to a grievance about a prohibition of domino games, and that he was present at
ILC meetings in which certain issues about physical and verbal abuse by corrections officers
were raised. The Court notes that the majority of Plaintiffs’ arguments as to why Defendant
Kirkpatrick should be held liable revolve around gross negligence or deliberate indifference,
44
which the Court has already found is insufficient to establish supervisory liability on this claim
post-Iqbal.
Nor have Plaintiffs alleged facts plausibly suggesting that Defendant Kirkpatrick’s
actions constitute allowance of the continuation of a policy or custom merely based on his
alleged awareness of reports of certain alleged incidents of retaliation or abuse. Notably, some of
the letters allegedly sent to Defendant Kirkpatrick involve grievances over general abuse or
perceived mistreatment, but not specifically complaining that those incidents were in retaliation
for protected conduct, and the few instances of reports of retaliatory conduct (a letter from
Plaintiff Scott on September 22, 2015, about threats of retaliation by Defendant Gregory and
letters from Plaintiff DeJesus from or received January 4 and 19, 2016, related to various acts of
retaliation by two corrections officers against prisoners related to grievances over the prohibition
of dominos games) are not so pervasive as to plausibly suggest a policy or custom specifically of
retaliation for pursuing grievances. After all, the question here is not whether there was a policy
or custom of unconstitutional conduct in Clinton Correctional Facility as a general matter, but
specifically a policy or custom of retaliation for engaging in protected activity both as individuals
and ILC representatives. Plaintiffs’ Amended Complaint simply has not alleged facts plausibly
suggesting that there was a policy or custom of such retaliation, much less that Defendant
Kirkpatrick knew of it and allowed it to continue.
Lastly, the Court cannot say that Plaintiffs’ allegation that Defendant Kirkpatrick read a
letter reporting retaliation in combination with the allegation that Plaintiff DeJesus was issued a
misbehavior report approximately eight days later plausibly suggests that Defendant Kirkpatrick
was personally involved in the issuance of that misbehavior report (which Plaintiff DeJesus
45
alleges was issued by Defendant Dixon), particularly given the fact that Plaintiff DeJesus
acknowledges that the misbehavior report was not based solely on the letter but also on his
alleged comments during an interview on the date the misbehavior report was issued; Plaintiff
DeJesus does not allege that Defendant Kirkpatrick participated in this interview or was even
aware of it. (Dkt. No. 17, at ¶¶ 65-66 [Pls.’ Am. Compl.].) Consequently, the Court does not
find that Plaintiffs have alleged facts plausibly suggesting that Defendant Kirkpatrick was
personally involved in the alleged violations.
As to Defendant Venettozzi, Plaintiffs DeJesus and Emerenciano allege that Defendant
Venettozzi was personally involved in the allegedly unconstitutional disciplinary actions against
them because he was responsible for reviewing the appeals from those actions and he affirmed
the hearing decisions. This Court has previously found that there is personal involvement (at
least for the purposes of a motion to dismiss) “where a supervisory official affirms an allegedly
constitutionally infirm hearing decision.” King v. McIntyer, 11-CV-1457, 2014 WL 689028, at
*10 (N.D.N.Y. Feb. 20, 2014) (Dancks, M.J., Hurd, J.) (collecting cases); accord Bennett v.
Fischer, 09-CV-1236, 2010 WL 5525368, at *11-12 (N.D.N.Y. Aug. 17, 2010) (Peebles, M.J.),
adopted by 2011 WL 13826 (N.D.N.Y. Jan. 4, 2011). Because Plaintiffs DeJesus and
Emerenciano specifically allege that Defendant Venettozzi reviewed and upheld the decisions on
their misbehavior report hearings, he has sufficiently alleged that Defendant Venettozzi was
personally involved in those violations in light of the fact that Plaintiff DeJesus alleges that
Defendant Venettozzi eventually reversed the decision on that incident and expunged it from his
record, and Plaintiff Emerenciano alleges that Defendant Venettozzi assessed the hearing
decision in a thorough enough manner that he found a basis to modify the sanction imposed from
46
270 days to 180 days in SHU; such allegations plausibly suggest for the purposes of this motion
to dismiss that Defendant Venettozzi did more than merely “rubber-stamp” the hearing decision
and thus was directly involved in the alleged violation. (Dkt. No. 17, at ¶¶ 127-30 [Pls.’ Am.
Compl.].) See also Ward v. Lee, 16-CV-1224, 2018 WL 4610682, at *11 (N.D.N.Y. July 3,
2018) (Hummel, M.J.) (granting motion to dismiss claim of supervisory liability where the
supervisory defendant’s affirmance of the disciplinary hearing decision was a “mere rubber
stamp” on that decision) adopted by 2018 WL 3574872 (N.D.N.Y. July 25, 2018) (Scullin, J.);
Barnes v. Fischer, 13-CV-0164, 2018 WL 5660414, at *20 (N.D.N.Y. Mar. 16, 2018) (Stewart,
M.J.) (noting that whether affirmance of a disciplinary hearing decision constitutes personal
involvement turns on whether “the official proactively participated in reviewing the
administrative appeals as opposed merely to rubber-stamping the results”), adopted by 2018 WL
4660380 (N.D.N.Y. Sept. 28, 2018) (Sharpe, J.).
For all of the above reasons,7 the Court grants Defendants’ motion to dismiss Plaintiffs’
Second Claim against Defendant Annucci and Defendant Kirkpatrick, but denies Defendants’
motion to dismiss Plaintiffs’ Second Claim against Defendant Venettozzi as to Plaintiffs DeJesus
and Emerenciano’s First Amendment claims.
2.
Fourteenth Amendment Claims
Because Plaintiffs DeJesus and Scott’s separate Fourteenth Amendment due process
7
To the extent Plaintiff Scott intended to assert supervisory claims against
Defendants Annucci and Kirkpatrick (as suggested by a single paragraph of the Amended
Complaint), such claims must be dismissed based on Plaintiff Scott’s failure to assert factual
allegations as to the nature of any involvement by either of those Defendants related to Defendant
Scott’s incoming mail, and his failure to assert any factual allegations of a policy or custom of
withholding and/or destroying incoming mail from journalists. (Dkt. No. 17, at ¶¶ 139-82 [Pls.’
Am. Compl.].)
47
claims have already been found to warrant dismissal, the Court need only consider whether
Defendant Venettozzi was personally involved in the alleged violations of Plaintiff
Emerenciano’s Fourteenth Amendment due process rights.8
Plaintiff Emerenciano’s claim of supervisory liability is sufficiently pled for his
Fourteenth Amendment claim for the same reasons as discussed above for the First Amendment
claim because it relies on the same conduct, namely Defendant Venettozzi’s modification of the
hearing decision. Consequently, the Court denies Defendants’ motion to dismiss the Second
Claim against Defendant Venettozzi as to Plaintiff Emerenciano’s remaining Fourteenth
Amendment claim against Defendant Venettozzi.
F.
Whether Plaintiffs Have Alleged Facts Plausibly Suggesting a Claim for
Conspiracy Under 42 U.S.C. § 1983
After careful consideration, the Court answers this question in the negative for the
reasons stated in Defendants’ memoranda of law. (Dkt. No. 25, Attach. 1 [Defs.’ Mem. of Law];
Dkt. No. 39 [Defs.’ Reply Mem. of Law].) To those reasons, the Court adds the following
analysis.
“A conspiracy claim under Section 1983 must allege that: (1) an agreement existed
between two or more state actors to act in concert to inflict an unconstitutional injury on plaintiff
8
The Court finds that any claims of supervisory liability based on the Fourteenth
Amendment claims asserted against Defendants Annucci and Kirkpatrick must be dismissed
because (a) the Court has already dismissed all Fourteenth Amendment claims other than
Plaintiff Emerenciano’s against Defendant Bell and thus no supervisory liability can attach as to
those dismissed claims, (b) Plaintiffs’ Second Claim appears to address supervisory liability only
as to the retaliation allegations even though it also cited the Fourteenth Amendment, and (c) there
are no factual allegations expressly against Defendants Annucci or Kirkpatrick related to any of
the Plaintiffs’ Fourteenth Amendment claims (e.g., that they were aware of Plaintiffs’
confinement in keeplock/SHU or the hearings that resulted in that confinement, or the tampering
with Plaintiff Scott’s mail).
48
and (2) an overt act was committed in furtherance of that goal.” Rasheen v. Adner, 356 F. Supp.
3d 222, 235 (N.D.N.Y. 2019) (Hurd, J.) (citing Ciambriello v. Cnty. of Nassau, 292 F.3d 307,
324-25 [2d Cir. 2002]). “[V]ague and conclusory allegations that defendants have engaged in a
conspiracy must be dismissed.” Rasheen, 356 F. Supp. 3d at 236.
The Court agrees with Defendants that Plaintiffs have not alleged any facts plausibly
suggesting that there was any agreement between Defendants Rock and Bell and any other
Defendant to violate Plaintiffs DeJesus or Emerenciano’s constitutional rights. Rather, the
Amended Complaint alleges only that these Defendants conspired “with the other Clinton
defendants” in their role as hearing officers to violate Plaintiffs’ due process rights. (Dkt. No.
17, at ¶ 185 [Pls.’ Am. Compl.].) Nor can the Court find any other factual allegations that
plausibly suggest an actual agreement between any of the Defendants related to the relevant
conduct.
Consequently, Plaintiffs have not alleged facts plausibly suggesting a claim of conspiracy
and this claim must be dismissed.
ACCORDINGLY, it is
ORDERED that Defendants’ motion to dismiss (Dkt. No. 25) is GRANTED in part and
DENIED in part as described above in this Decision and Order; and it is further
ORDERED that the following claims are DISMISSED:
(a)
Plaintiff Scott’s First Claim under the First Amendment to the extent it is asserted
against Defendants Holdridge, Crowley, and Gregory;
(b)
Plaintiff DeJesus’ Third and Fourth Claims under the Fourteenth Amendment;
(c)
Plaintiff Scott’s Fifth Claim under the First and/or Fourteenth Amendment; and
49
(d)
Plaintiffs’ Second Claims of supervisory liability against Defendants Annucci and
Kirkpatrick; and it is further
ORDERED that the following claims SURVIVE this motion to dismiss:
(a)
Plaintiffs’ First Claim under the First Amendment as asserted by Plaintiffs
DeJesus and Emerenciano against all relevant Defendants, and as asserted by
Plaintiff Scott to the extent it is asserted against Defendant Houck based on his
alleged transfer of Plaintiff;
(b)
Plaintiff Emerenciano’s Third Claim under the Fourteenth Amendment against
Defendant Bell;
(c)
Plaintiff Emerenciano’s Fourth Claim under the Fourteenth Amendment against
Defendant Venettozzi; and
(d)
Plaintiffs’ Second Claim of supervisory liability against Defendant Venettozzi;
and it is further
ORDERED that Defendants Annucci, Kirkpatrick, Holdridge, Crowley, and Gregory are
DISMISSED from this action.
Dated: September 23, 2019
Syracuse, New York
50
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