McAllister v. Garrett et al
Filing
20
MEMORANDUM OPINION AND ORDER re: 5 APPLICATION for the Court to Request Counsel filed by Owen Q. McAllister, Sr. Accordingly, for all the foregoing reasons, petitioner's motion for the appointment of counsel is denied without prejudice to renewal. Any renewed application should be accompanied by an affidavit establishing the merits. (Signed by Magistrate Judge Henry B. Pitman on 9/1/2011) Copies Mailed By Chambers. (mro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----x
OWEN Q. McALLISTER
I
SR'
I
Plaintiff l
10 Civ. 3828 (RJH) (HBP)
against-
MEMORANDUM
OPINION AND ORDER
OFFICER P. GARRETT #703;
OFFICER GIBBS Booking Officer;
SERGEANT YANKOWSKI Booking Sgt.;
CAPTAIN RAY RHODES Disciplinary
Hearing Officer; ANTHONY AMICUCCI
Warden; SERGEANT PARADISO # 150;
OFFICER ROBINSON; OFFICER KALIDIS;
E.R.T.; VALHALLA CORRECTIONAL
FACILITY
I
I
I
I
I
I
I
Defendants.
---------- ---- -
PITMAN
I.
I
-------X
United States Magistrate Judge:
Introduction
aint
under 42 U.S.C.
fl a pro se prisoner l commenced this action
§
1983 1 alleging violations of his due process
rights and his right to be free from cruel and unusual punishment
while he was incarcerated at Westchester County Department of
Correction ("WCDOC")
in Valhal
I
New York.
By motion dated
August 18 1 2010 (Docket Item 5)1 petitioner seeks to have counsel
appointed to represent him pursuant to 28 U.S.C.
§
1915(e) (1).
+
For the reasons set forth below, the motion is denied without
prejudice to renewal.
II.
Background
The WCDOC is a prison consisting
n
a Jail Division,
which houses individuals 16 years and older (including males
accused of a crime or awaiting sentencing.
.) and a Peniten
tiary Division, which houses males sentenced to terms of one year
or less.
II
WCDOC, About Us, available at http://correc
tion.westchestergov.com/about-us.
Plaintiff's claims arise from
an incident that allegedly occurred on December 17, 2009, when
plaintiff was told he would be moved into the Penitentiary
Division (Complaint, filed May 10, 2010 (Docket Item 2), at
II.D.).
Plaintiff alleges he was moved out of the Penitentiary
Division in April 2009 because he had previously submitted
grievances against Officers Wyatt and Garrett
II.D.).
(Complaint at
Plaintiff does not identify these officers by first name
or otherwise explain why he filed grievances against them, except
to say there was an Uongoing situation u
(Complaint at II.D.)
Plaintiff claims an altercation with Garrett in April 2009
resulted in a disciplinary charge and his move out of the Peni
tentiary Division (Complaint at II.D.).
From April 2009 to
December 17, 2009, plaintiff lived in the Hold part" of the WCDOC
2
rather than the Penitentiary Division, which presumably means the
Jail Division (Complaint at II.D.).
On December 17, 2009, plaintiff allegedly told several
officers that he should not be moved back to the Penitentiary
Division (Complaint at II.D.).
One officer told him his situa
tion with Garrett was not documented (Complaint at II.D.).
While
being escorted to the Penitentiary Division, plaintiff informed
another officer about his situation with Garrett.
the main corridor, Garrett allegedly said,
"here comes that
asshole McAllister, get the fuck in the Bullpen"
II.D.).
Upon reaching
(Complaint at
Plaintiff responded by calling Garrett a "pussy"
plaint at II.D.).
(Com
As plaintiff was informing Sergeant Paradiso
that he should not be in the Penitentiary Division, Garrett
grabbed plaintiff's right arm "very aggressively"
II.D.).
(Complaint at
Plaintiff yanked his arm away from Garrett, who grabbed
the front of plaintiff's shirt and tried to wrestle plaintiff to
the ground (Complaint at II.D.).
An Emergency Response Team
("ERT") responded, and plaintiff was moved to the Special Housing
Unit ("SHUll) of WCDOC (Complaint at II.D.).
Plaintiff claims he
remained in SHU from that day until the time he signed his
complaint on March 16, 2010, 89 days after the incident (Com
plaint at II.D. & 7).
3
Later on the day of December 17, 2009, three disciplin
ary charges were leveled against plaintiff:
(1) acting with
intent to cause inconvenience, annoyance or harmi
ence of orders, and (3)
(2) disobedi
interference with a staff member's
performance of duties or functions by physical intimidation,
including but not limited to menacing a staff member (Complaint
at II.D.}.l
On December 18, 2009, plaintiff claims he received a
second copy of the disciplinary report that was similar to the
copy he had previously received except that it did not state that
the ERT had responded, added that Garrett sustained a fractured
wrist and added a fourth charge of causing substantial bodily
injury to a correctional officer (Complaint at II.D.).
Plaintiff
claims both reports are procedurally flawed and erroneous (Com
plaint at II.D.).
He states that he was charged in New York
State court with assault in the second degree following the
altercation with Garrett (Complaint at II.D.).
Plaintiff claims that a subsequent disciplinary hearing
conducted by Captain Ray Rhodes on December 30, 2009, was "very
bogus and non impartial" and violated his due process right to a
fair and impartial hearing (Complaint at II.D.).
Plaintiff
1Plaintiff claims four disciplinary charges were initially
leveled against him, but I conclude that what he believes to be
the third and fourth charges are really only one charge.
4
contends that he was not able to call witnesses on his behalf,
was denied the right to introduce videotaped evidence of the
altercation and was denied the right to have a hearing in a
secluded area or private setting.
He states that Rhodes found
him guilty of the original charges in the disciplinary hearing
but found plaintiff not guilty of causing substantial bodily
injury to a correctional officer on a IItechnicalityll
at II.D.).
(Complaint
Plaintiff claims numerous witnesses saw the incident,
and that cameras in the main corridor recorded the incident on
videotape.
Plaintiff claims he suffered an eye injury in the
altercation with Garrett (Complaint at III).
In his complaint,
plaintiff states that the damage consists of "pain, cloudy
vision, not being able to focus, objects are distorted"
plaint at III).
(Com
In his motion for counsel, plaintiff states that
he underwent surgery to have his retina reattached (Application
for the Court to Request Counsel, dated August 18, 2010 (Docket
Item 5), at
~
2).
Based on the narratives from his complaint and motion
to obtain counsel, plaintiff appears to be alleging four catego
ries of constitutional violations:
(1) that officers Robinson,
Kalidas, Gibbs, Sergeants Yankowski and Paradiso, Captain Rhodes
and Superintendent Amicucci were deliberately indifferent to
5
conditions that posed a substantial risk of serious harm to his
physical well-being, given their knowledge of prior harassment of
plaintiff by Garrett;
(2) that Garrett used excessive force in
violation of plaintiff's Eighth Amendment right against cruel and
unusual punishment;
(3) that plaintiff's Due Process rights were
violated by the administrative hearing, and (4) that plaintiff's
confinement in SHU represented cruel and unusual punishment (see
Complaint at II.D.; Application for the Court to Request Counsel
at 4).
Plaintiff seeks compensation for his pain and suffering,
for being falsely accused of a crime, for being confined in the
SHU and for restitution in the amount of $25 from the guilty
verdicts in the disciplinary charges against him (Complaint at
V.) .
By notice of motion filed July 29, 2011, defendants
move to dismiss on the following grounds:
(1) plaintiff failed
to serve defendants within 120 days of filing the complaint,
pursuant to Federal Rule of Civil Procedure 4(m);
(2) plaintiff
failed to state a claim of a constitutional deprivation;
(3)
plaintiff failed to exhaust his administrative remedies as
required by the Prison Litigation Reform Act
(IIPLRAn)
i
(4)
plaintiff fails to state a claim under the Eighth Amendment;
(5) plaintiff failed to allege personal involvement of Gibbs,
Robinson, Kalidas, Yankowski, Paradiso, Rhodes and Amicucci;
6
(6)
plaintiff failed to state a claim of a Due Process violationj
(7)
defendants are entitled to qualified immunity, and (8) plaintiff
failed to allege that any constitutional rights violation re
suIted from a municipal policy or custom of the county (Memoran
dum of Law in Support of County Defendants' Motion to Dismiss,
dated July 29, 2011 (Docket Item 17)
III.
(Defs.' Memo).
Analysis
A. Applicable Legal Standards
for the Appointment of Counsel
Pursuant to 28 U.S.C.
§
1915 (e) (1),
"[t]he court may
request an attorney to represent any person unable to afford
counsel."
However,
"[t]here is no requirement that an indigent
litigant be appointed pro bono counsel in civil matters, unlike
most criminal cases."
Cir. 1994)
Burgos v. Hopkins, 14 F.3d 787, 789 (2d
(citing 28 U.S.C.
§
1915).
The factors to be consid
ered in ruling on a motion for pro bono counsel are well settled
and include "the merits of plaintiff's case, the plaintiff's
ability to pay for private counsel,
[the plaintiff's] efforts to
obtain a lawyer, the availability of counsel, and the plaintiff's
ability to gather the facts and deal with the issues if unas
sisted by counsel."
(2d Cir. 1989)
Cooper v. A. Sargenti Co., 877 F.2d 170, 172
(per curiam).
Of these,
7
"[t]he factor which
command[s] the most attention [is] the merits.
Sargenti CO.
supra, 877 F.2d at 172.
I
Civ. 7659 (DAB), 1996 WL 208203 at *1
Cooper v. A.
Accord adorn v. Sielaff, 90
(S.D.N.Y. Apr. 26 1 1996)
(Batts, D.J.) i see Berry v. Kerik l 366 F.3d 85
2004).
II
1
88
(2d Cir.
As noted over twenty years ago by the Court of Appeals:
Courts do not perform a useful service if they appoint
a volunteer lawyer to a case which a private lawyer
would not take if it were brought to his or her atten
tion. Nor do courts perform a socially justified
function when they request the services of a volunteer
lawyer for a meritless case that no lawyer would take
were the plaintiff not indigent.
Cooper v. A. Sargenti Co., supra
I
877 F.2d at 174; see also
Hendricks v. Coughlinl 114 F.3d 390
392
1
deciding whether to appoint counsel .
(2d Cir. 1997)
(IIIn
. the district judge
should first determine whether the indigent's position seems
likely to be of substance."
(citation and internal quotation
marks omitted).
The Court of Appeals for the Second Circuit has
stated in various ways the applicable standard for
assessing the merits of a pro se litigant's claim.
In
Hodge [v. Police Officers 802 F.2d 58 (2d Cir. 1986)]
[the Court of Appeals] noted that II [e]ven where the
claim is not frivolous counsel is often unwarranted
where the indigent's chances of success are extremely
slim / ll and advised that a district judge should deter
mine whether the pro se litigant's IIposition seems
likely to be of substance
or showed "some chance of
success. II Hodge, 802 F.2d at 60-61 (internal quotation
marks and citation omitted).
In Cooper v. A. Sargenti
CO'
[the Court of Appeals] reiterated the importance
of requiring indigent litigants seeking appointed
I
I
I
I
I
8
"
counsel "to first pass the test of likely merit."
F.2d 170, 173 (2d Cir. 1989) (per curiam).
877
Ferrelli v. River Manor Health Care Ctr., 323 F.3d 196, 204
(2d Cir. 2003).
B. Application of the Foregoing
Principles to Plaintiff's Motion
Petitioner has already established that he lacks the
resources to obtain counsel, as his leave to proceed in forma
pauperis was granted on May 7, 2010, by the Honorable Loretta A.
Preska, United States District Judge (Docket Item 1).
Plaintiff
claims he needs an attorney because he is not well versed in
civil litigation, the retina in his right eye needed to be
reattached -- which presumably indicates a difficulty or discom
fort in reading documents with respect to this lawsuit
- and he
was in "keeplock status" at the time of the present motion
(Application for the Court to Request Counsel at ~ 2).
Further
more, plaintiff claims the recovery from eye surgery and his
uncontrolled high blood pressure has kept him from finding an
attorney.
However, it does not appear at this time that peti
tioner's claims are sufficiently meritorious to warrant the
appointment of counsel.
Given the record before me, however, I
conclude that even if plaintiff's claim cannot quite be described
9
as frivolous, his "chances of success are extremely slim."
Ferrelli v. River Manor Health Care Ctr., supra, 323 F.3d at 204,
quoting Hodge v. Police Officers, supra, 802 F.2d at 60 (internal
quotation marks and citation omitted).
As a threshold matter, it
appears unlikely that plaintiff has exhausted his administrative
remedies as required by the PLRA, 42 U.S.C.
§
1997e(a) , with
respect to the deliberate indifference and excessive force
claims.
Plaintiff's Due Process and cruel and unusual punishment
claims appear similarly unlikely to succeed because of a failure
to state a claim.
1. Claims Unlikely to Succeed
Because of a Lack of
Administrative Exhaustion
The PLRA, 42 U.S.C. § 1997e(a) provides that" [nJo
action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available are
exhausted."
"The purpose of the PLRA is 'to reduce the quantity
and improve the quality of prisoner suits .
[and to afford]
corrections officials time and opportunity to address complaints
internally before allowing the initiation of a federal case. '"
Brownell
v.
Krom, 446 F.3d 305, 310 (2d Cir. 2006), quoting
10
Abney v. McGinnis, 380 F.3d 663, 667 (2d Cir. 2004)
v. Goord, 255 F.3d 40, 42
Bendheim, 00 Civ. 720
(2d Cir. 2001)
i
(per curiam)
see Marvin
i
Johnson v.
(JSR) , 2001 WL 799569 at *4 (S.D.N.Y. July
13, 2001)
(Rakoff, D.J.)
Fox, M.J.)
i
(adopting Report and Recommendation of
Grey v. Sparhawk, 99 Civ. 9871
at *1 (S.D.N.Y. June 23, 2000)
(HB) , 2000 WL 815916
(Baer, D.J.).
Courts have interpreted the [PLRA] to require complete
exhaustion in accordance with institutional procedures.
See, g.g., Sulton v. Greiner, 2000 WL 1809284 (S.D.N.Y,
Dec. 11, 2000) (granting summary judgment where pris
oner failed to appeal to the CORC) i Petit v. Bender,
2000 WL 303280, at *2-3 (S.D.N.Y. March 22, 2000)
(prisoner who only partially complied with the griev
ance procedures failed to exhaust his administrative
remedies.) i Santiago v. Meinsen, 89 F. Supp. 2d 435
(S.D.N.Y. 2000) (prisoners must challenge the condi
tions of their confinement through the highest level of
available administrative avenues prior to filing suit) .
This requirement applies even when plaintiffs seek a
remedy that cannot be awarded by the administrative
body hearing the complaint.
Graham v. Cochran, 96 Civ. 6166 (LTS) (RLE) , 2002 WL 31132874 at
*6 (S.D.N.Y. Sept. 25, 2002)
(Swain, D.J.)
Recommendation of Ellis, M.J.)
i
(adopting Report &
see also Vidal v. Gorr,
5554 (LAK) , 2003 WL 43354 at *1 (S.D.N.Y. Jan. 6, 2003)
D.J,)
2000)
i
Beatty v. Goord, 210 F. Supp. 2d 250, 252 53
02 Civ.
(Kaplan,
(S.D.N.Y.
(Berman, D.J.).
The exhaustion requirement "applies to all inmate suits
about prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force or
11
some other wrong.
II
Porter v. Nussle, supra, 534 U.S. at 532.
In
addition, the PLRA applies to claims asserted by pretrial detain
ees as well as sentenced prisoners.
See United States v. Al-
Marri, 239 F. Supp. 2d 366,367 68 (S.D.N.Y. 2002)
D.J.)
i
(Marrero,
Rivera v. State of New York, 96 Civ. 7697 (RWS) , 1999 WL
13240, at *4-*5 (S.D.N.Y. Jan. 12, 1999)
(Sweet, D.J.).
The
PLRAls exhaustion requirement must be met before plaintiff's
complaint is filed.
2001)
Neal v. Goord, 267 F.3d 116, 122 (2d Cir.
(" [G]rievances must now be fully pursued prior to filing a
complaint in federal court.
II) ,
overruled in part on other
grounds, Porter v. Nussle, supra, 534 U.S. at 532; Pugh v. Goord,
571 F. Supp. 2d 477, 490 (S.D.N.Y. 2008)
(Sullivan, D.J.);
Schwartz v. Dennison, 518 F. Supp. 2d 560, 568 (S.D.N.Y. 2007)
(Holwell, D.J.), aff'd, 339 F. App'x 28 (2d Cir. 2009)
I1While lour circuit has recognized that .
. the
PLRA's exhaustion requirement is mandatory, certain caveats
apply.
III
Abney v. McGinnis, 380 F.3d 663, 667
quoting Giano v. Goord, supra, 380 F.3d at 677
(2d Cir. 2004),
(citation and
internal quotation marks omitted) .
[A] three-part inquiry is appropriate in cases where a
prisoner plaintiff plausibly seeks to counter defen
dants ' contention that the prisoner has failed to
exhaust available administrative remedies as required
by the PLRA, 42 U.S.C. § 1997e(a). Depending on the
inmate's explanation for the alleged failure to ex
haust, the court must ask whether administrative reme
12
dies were in fact "available" to the prisoner. Abney v.
McGinnis, 380 F.3d 663, 2004 WL 1842647. The court
should also inquire as to whether the defendants may
have forfeited the affirmative defense of non-exhaus
tion by failing to raise or preserve it, Johnson v.
Testman, 380 F.3d 691, 2004 WL 1842669, or whether the
defendants' own actions inhibiting the inmate's exhaus
tion of remedies may estop one or more of the defen
dants from raising the plaintiff's failure to exhaust
as a defense, Ziemba [v. Wezner], 366 F.3d [161, 163 (2d
Cir. 2004)].
If the court finds that administrative
remedies were available to the plaintiff, and that the
defendants are not estopped and have not forfeited
the
non-exhaustion defense, but that the plaintiff
nevertheless did not exhaust available remedies, the
court should consider whether "special circumstances"
have been plausibly alleged that justify "the pris
oner's failure to comply with administrative procedural
requirements." Giano v. Goord, 380 F.3d 670, 2004 WL
1842652 (citing Berry v. Kerik, 366 F.3d 85, 88 (2d
Cir. 2003); Rodriguez order) .
Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004) i see
Macias v. Zenk, 495 F.3d 37, 41 (2d Cir. 2007); Brownell v. Krom,
446 F.3d 305, 311 12 (2d Cir. 2006).
"Where a plaintiff alleges that the defendant made
misrepresentations that inhibited the plaintiff from participat
ing in the grievance process, dismissal of the complaint for
failure to exhaust is not appropriate."
Supp. 2d 397, 403 (S.D.N.Y. 2006)
Sereika v. Patel, 411 F.
(Marrero, D.J.), citing
Feliciano v. Goord, 97 Civ. 0263, 1998 WL 436358 at *2 (S.D.N.Y.
July 27, 1998)
(Cote, D.J.) and Davis v. Frazier, 98 Civ. 2658
(HB) , 1999 WL 395414 at *4 (S.D.N.Y. June 15, 1999)
(Baer, D.J.).
Indeed, "a plaintiff may assert estoppel, and exhaustion may be
13
excused, if he has been led to believe that an incident was not a
grievance matter and would be otherwise investigated or that
filing a grievance would be futile."
Supp. 2d 735, 747 (S.D.N.Y. 2003)
Rivera v. Goord, 253 F.
(Chin, D.J.).
Similarly,
"where a prisoner has made a 'reasonable attempt' to file a
grievance, and prison officials have prevented the prisoner from
filing that grievance, the grievance procedures are not 'avail
able' to the defendant, and thus the [PLRA] does not preclude the
prisoner from suing in federal court."
Dep't of Corr. Servs., 00 Civ. 7163
(S.D.N.Y. Sept. 30/ 2002)
~
Thomas v. New York State
(NRB) , 2002 WL 31164546 at *3
(Buchwald, D.J.)
(citations omitted) i
Hollman v. Lindsay, 08-CV-1417 (NGG) , 2009 WL 3112076 at *10
(E.D.N.Y. Sept. 25, 2009) i Gayle v. Benware, 08 Civ. 8017
(RMB) (FM) , 2009 WL 2223910 at *5 (S.D.N.Y. July 27, 2009)
(Berman, D.J.)
(adopting Report & Recommendation of Maas, M.J.).
In the Second Circuit/
'"
[a] lert [ing] the prison
officials as to the nature of the wrong for which redress is
sought'
. . . does not constitute 'proper exhaustion.'"
v. Zenk/ 495 F.3d 37, 44
Macias
(2d Cir. 2007), quoting Braham v.
Clancy, 425 F.3d 177, 184 (2d Cir. 2005), and Woodford v. Ngo,
548 U.S. 81, 94-95 (2006)
i
accord Bennett v. Onua, 09 Civ. 7227
(SAS) , 2010 WL 2159199 at *2 (S.D.N.Y. May 26, 2010)
D.J.)
(footnotes omitted).
(Scheindlin,
Even where a plaintiff states broadly
14
that he submitted letters or made oral requests or complaints
about the issues underlying an action, such measures also fail to
satisfy the PLRA's exhaustion requirement.
Harrison v. Goord, 07
Civ. 1806 (HE), 2009 WL 1605770 at *8 (S.D.N.Y. June 9, 2009)
(Baer, D.J.) i Arce v. Keane, 01 Civ. 2648 (BSJ) , 2004 WL 439428
at *4 (S.D.N.Y. Mar. 9, 2004)
(Jones, D.J.)
520 F. Supp. 2d 487, 495 (S.D.N.Y. 2007)
i
see Singh v. Goord,
(Robinson, D.J.).
Additionally, even an allegation that prison staff never re
sponded to a prisoner's complaints does not excuse the exhaustion
requirement.
Harrison v. Goord, supra, 2009 WL 1605770 at *8;
Clarke v. Thornton, 515 F. Supp. 2d 435, 440 (S.D.N.Y. 2007)
(Marrero, D.J.); Lashley v. Artuz, 01 Civ. 11542
1192090 at *2 (S.D.N.Y. May 27, 2004)
(SAS) , 2004 WL
(Scheindlin, D.J.).
The WCDOC has an established Inmate Grievance Procedure
("IGP"), in accordance with Part 7032 of the New York State
Commission of Correction ("NYSCOC") Minimum Standards (WCDOC
Policy and Procedure at 1).
A "grievance" is defined as Ita
written inmate complaint concerning either written or unwritten
facility policies, procedures, rules, practices, programs or the
action or inaction of any person within the facility.
Disposi
tions and sanctions resulting from disciplinary hearings and
administrative segregation housing decisions shall not be the
subject of a grievance"
(WCDOC Policy and Procedure at III.A.).
15
According to the WCDOC Inmate Handbook Rules and Regulations/ a
prisoner may begin the grievance process by speaking to the
Housing Unit Officer/ who will log a complaint in the Complaint
Log and attempt to resolve the matter on his own.
If the Housing
Unit Officer cannot resolve the complaint/ he will refer it to a
supervisor for resolution.
If the supervisor is unable to
satisfy the complaint/ he will provide the prisoner with a
grievance form.
However/ WCDOC permits inmates to "request a
grievance form at any time and not take part in the informal
process.
Also[/]
in an effort to provide a measure of 'confiden
tiality' to the process/ inmates may submit a grievance in a
sealed envelope"
14 15).
(WCDOC Inmate Handbook Rules and Regulations at
The WCDOC grievance policy then proceeds through a
seven-step process that includes written determinations and
appeals (WCDOC Policy and Procedure at 4) .
I conclude that plaintiff did not/ in all likelihood/
exhaust his administrative remedies with respect to the deliber
ate indifference and excessive force claims.
The assault by
Garrett and the deliberate indifference by the other defendants
clearly appear to be grievable matters because these alleged
behaviors constitute "action or inaction of any person within the
facility"
(WCDOC Policy and Procedure at III.A.).
Moreover/
plaintiff's description of his efforts to file a grievance is
16
inconsistent and incomplete.
In one part of his complaint,
plaintiff claims he filed a grievance while in the SHU (Complaint
at IV.F.).
incident.
He claims the grievance was filed about
II
[t]he entire
The incident itself and the damage to my eye"
plaint at IV.F.1.).
(Com
However, plaintiff also claims that his
"grievance was never filed nor taken into account" nor was it
logged (Complaint at IV.F.2, IV.F.3.).
Plaintiff also claims he
attempted to bring the situation to Warden Amicucci's attention
but received no response (Complaint at IV.G.1.).
Plaintiff
states that he made "unsuccessful attempts ll to have his grievance
processed, alerted his doctor about his eye and also IImade a
complaint" to numerous officers in the SHU, which he assumes were
written (Complaint at IV. I}.
Based on the record presently before me, it appears
likely that plaintiff, at most, complained informally as part of
WCDOC procedure.
Plaintiff never states that he attempted to
submit a written grievance form.
As noted above, the WCDOC has
procedures to allow prisoners to bypass the informal procedure or
to seek further relief if their complaints are not satisfied.
Plaintiff apparently never took the necessary steps to follow up
and file a formal grievance as required under the PLRA.
Further
more, plaintiff at one point claims he IIsubmitted documented
grievances" against Wyatt and Garrett in the past, prior to April
17
2009.
Therefore, it appears that plaintiff had some knowledge of
the formal grievance procedure.
Broad claims that a prisoner
submitted letters or made oral requests or complaints about the
issues underlying an action fail to satisfy the PLRA's exhaustion
requirement.
Harrison v. Goord, supra, 2009 WL 1605770 at *8;
Arce v. Keane, supra, 2004 WL 439428 at *4; see Singh v. Goord,
supra, 520 F. Supp. 2d at 495.
Similarly, even if plaintiff is
alleging that prison staff never responded to his complaints,
this does not excuse the exhaustion requirement, either.
Harri
son v. Goord, supra, 2009 WL 1605770 at *8; Clarke v. Thornton,
supra, 515 F. Supp. 2d at 440; Lashley v. Artuz, supra, 2004 WL
1192090 at *2.
defendants'
Furthermore, plaintiff provides no evidence that
"own actions inhibiting the inmate's exhaustion of
remedies [] estop one or more of the defendants from raising the
plaintiff's failure to exhaust as a defense."
Hemphill v. New
York, supra, 380 F.3d at 686 (citation omitted).
He submits no
evidence that he was prevented from filing a grievance by prison
officials or that misrepresentations were made to inhibit his
filing of a grievance.
Finally, plaintiff has not shown that
special circumstances exist that would justify his "failure to
comply with administrative procedural requirements"
New York, supra, 380 F.3d at 686 (citation omitted).
Hemphill v.
Plaintiff's
physical condition does not qualify, because despite his vision
18
problems and high blood pressure, he was able to file a com
plaint, a request to proceed in forma pauperis and a motion for
counsel in this Court.
Therefore, his deliberate indifference
claims and excessive force claims are likely to be dismissed for
failure to exhaust administrative remedies.
Because
I
conclude
that plaintiff's claims seem unlikely to be of substance or have
"some chance of success," Ferrelli v. River Manor Health Care
Ctr., supra, 323 F.3d at 204 (citation omitted), his motion with
respect to these claims is denied.
2. Claims Likely to
Fail For Failure
to State a Claim
Plaintiff's claims that are likely to survive the
exhaustion analysis are (1) his claim that the administrative
hearing violated his Due Process rights, and (2) his claim that
confinement in SHU represented cruel and unusual punishment.
According to the WCDOC Policy and Procedure, "[d]ispositions or
sanctions from disciplinary hearings" and" [a]dministrative
segregation housing decisions" are not grievable issues (WCDOC
Policy and Procedure at 3-4).
Therefore, administrative remedies
were not available to the plaintiff under the PLRA for these
claims.
omitted).
Hemphill v. New York, supra, 380 F.3d at 686 (citation
However, I conclude that plaintiff has likely failed
19
to state a claim for both issues, and, therefore, plaintiff's
motion is denied with respect to these remaining claims.
a.
Due Process Claim
To establish a deprivation of Due Process during a
disciplinary hearing, a prisoner "must show:
(1) that he pos
sessed a liberty interest and (2) that the defendant(s) deprived
him of that interest as a result of insufficient process.
III
Thomas v. Calero, 09 Civ. 5209 (LTS) (MHD) , 2011 WL 1532058 at *7
(S.D.N.Y. Mar. 17, 2011)
(Dolinger, M.J.)
(Report and Recommenda
tion) , adopted, 2011 WL 1532061 (S.D.N.Y. Apr. 20, 2011)
(Swain,
D.J.), quoting Giano v. Selsky, 238 F.3d 223, 225 (2d Cir. 2001)
(citations and internal quotation marks omitted) .
"States may
under certain circumstances create liberty interests which are
protected by the Due Process Clause.
But these interests
will be generally limited to freedom from restraint which, while
not exceeding the sentence in such an unexpected manner as to
give rise to protection by the Due Process Clause of its own
force .
. nonetheless imposes atypical and significant hardship
on the inmate in relation to the ordinary incidents of prison
life."
Sandin v. Conner, 515 U.S. 472, 483-84 (1995).
In Sandin v. Conner, supra, 515 U.S. at 486, the United
States Supreme Court held that a prisoner's "discipline in
20
segregated confinement did not present the type of atypical
I
significant deprivation in which a State might conceivably create
a liberty interest" where "disciplinary segregation l with insig
nificant exceptions
mirrored those conditions imposed upon
I
inmates in administrative segregation and protective custody.
The Second Circuit
l
in applying Sandin v. Conner
I
supra
I
II
has
stated that
[f]actors relevant to determining whether the plaintiff
endured an 'atypical and significant hardship' include
'the extent to which the conditions of the disciplinary
segregation differ from other routine prison condi
tions' and 'the duration of the disciplinary segrega
tion imposed compared to discretionary confinement.'
Wright v. Coughlinl 132 F.3d 133 136 (2d Cir. 1998).
1
Our cases 'make clear that duration is not the
only relevant factor.
The conditions of confinement
are a distinct and equally important consideration in
determining whether a confinement in SHU rises to the
level of 'atypical and severe hardship.
III
Ortiz
v. McBride 323 F. 3d 191 195 (2d Cir. 2003) (per
curiam).
"Both the conditions and their duration must
be considered l since especially harsh conditions en
dured for a brief interval and somewhat harsh condi
tions endured for a prolonged interval might both be
atypical." Sealey v. Giltner l 197 F.3d 578 586 (2d
Cir. 1999) (citation omitted). Accordingly.
. we
have explicitly avoided a bright line rule that a
certain period of SHU confinement automatically fails
to implicate due process rights.
See Sims v. Artuz
230 F.3d 141 23 (2d Cir. 2000) i Colon v. Howard 215
F.3d 2271 234 (2d Cir. 2000).
Instead l our cases
establish the following guidelines for use by district
courts in determining whether a prisoner's liberty
interest was infringed. Where the plaintiff was con
fined for an intermediate duration between 101 and 305
days-'development of a detailed record' of the condi
tions of the confinement relative to ordinary prison
I
1
1
i
I
21
conditions is required.
, 215 F.3d at 232; accord
Sims, 230 F.3d at 23 (II [W]e have characterized segrega
tive sentences of 125-288 days as relatively long, and
thus necessitating specif
articulation of .
factual findings before the district court could prop
erly term the confinement atypical or insignificant. II
(citations and internal quotation marks omitted)).
In
those situations, a district court must IImake a
fact-intensive inquiry, It Sims, 230 F.3d at 22, examin
ing nthe actual circumstances of SHU confinement ll in
the case before it without relying on its familiarity
with SHU conditions in previous cases, Kalwasinski v.
Morse, 201 F.3d 103, 106 (2d
. 1999) (per
am) .
Palmer v. Richards, 364 F.3d 60, 64 65 (2d Cir. 2004)
v. Doling, 331 F.3d 93, 97 98 (2d Cir. 2003)
II
[R]estrictive confinements of
i
(per curiam)
ss than 101 days do
not generally raise a liberty interest warranting due process
protection, and thus require proof of conditions more onerous
than usual.
11
Davis v. Barrett, 576 F.3d 129, 133 (2d Cir. 2009),
citing Colon v. Howard, 215 F.3d 227, 231 32 & n.5 (2d Cir.
2000).
However, the Second Circuit has concluded "that SHU
confinements of fewer than 101 days 'could constitute atypical
and signi
cant hardships if the conditions were more severe than
the normal SHU conditions
. or a more ful
developed record
showed that even relatively brief confinements under normal SHU
conditions were, in fact, atypical.
In
Davis v. Barrett, supra,
576 F.3d at 133, quoting Palmer v. Richards,
65.
22
~~=,
364 F.3d at
I conclude that plaintiff's claim that his Due Process
rights were violated by the administrative hearing is unlikely to
succeed.
First, plaintiff's alleged stay in SHU, as of the time
he signed his complaint, was 89 days
short of the 101 days
that are considered of "intermediate duration.
,,2
Moreover,
plaintiff has failed to allege any facts whatsoever showing his
confinement represented an atypical hardship.
Plaintiff does not
state what penalty was imposed by the guilty verdicts, and he
does not put forth any evidence as to the conditions of his
confinement.
Thus, I conclude that plaintiff's confinement in
SHU was likely not an atypical hardship, and I therefore conclude
that plainti
IS
Due Process rights were likely not violated.)
2By the time he moved for the appointment of counsel, on
August 18, 2010, plaintiff alleged he was on "keeplock status,"
which is a less restrictive status than confinement
SHU
(Application for the Court to Request Counsel, at ~ 2). Webster
v. Fischer, 694 F. Supp. 2d 163, 176 n.11 (N.D.N.Y.), aff'd, 398
F. Applx 683 (2d Cir. 2010)
3To the extent plaintiff is alleging the deprivation of a
property interest in the $25.00 he was ordered to pay in
restitution because of the guilty verdicts, at least one court
has held this could "constitute[] an atypical and significant
hardship under". See Barone v. Hatcher, 984 F. Supp. 1304, 1311
12 (D. Nev. 1997).
In such situations, the due process mandated
under Wolff v. McDonnell, 418 U.S. 539, 564-65 (1974), is the
requirement that prison officials provide plaintiff "a statement
of the evidence and reasons relied upon by the disciplinary panel
that ordered restitution." Barone v. Hatcher, supra, 984 F.
Supp. at 1312 (citation omitted). Because plaintiff did receive
disciplinary reports detailing the charges against him and has
offered no evidence that defendants fai
to provide a statement
(continued ... )
23
To the extent
plaintiff is alleging a violation of
Due Process because the disciplinary charges were false,
I
conclude that this claim is unlikely to succeed based on the
present record.
a crimel!
Plaintiff
(Complaint at V.).
aims that he was "falsely accused of
However, it is unclear if
is
referring to the assault charge in New York State court or the
disciplinary charges of which he was found guilty.
In any event,
plaintiff contends that the disciplinary reports were procedur
ally flawed and erroneous (Complaint at 11.0.).
He claims that
in a subsequent hearing, he was unable to call any witnesses on
his behalf or offer videotaped evidence.
If an inmate is I!afforded a fair opportunity to refute"
disciplinary charges, an allegation that such charges were
se
cannot support a Due Process claim.
Livingston v. Kelly, 2011 WL
2006882 at *1 (2d Cir. May 24, 2011)
(unpublished), citing
Freeman v. Rideout, 808 F.2d 949, 953
(2d Cir. 1986); see
Jones v. Coughlin, 45 F.3d 677, 679 (2d Cir. 1995).
However, a
Due Process claim based on the filing of false misconduct charges
may lie where an inmate I!was unfairly denied the right to call
key witnesses in defense of the charges against him.
I!
Livingston
cont inued)
of the evidence or failed to provide the reasons
disciplinary
panel ordered restitution, I conclude that plaintiff is also
unlikely to prevail on this claim.
3 ( •••
24
v. Piskor, 153 F. App'x 769, 771 (2d Cir. 2005), quoting Jones v.
Coughlin, supra, 45 F.3d at 679; accord Livingston v. Kelly,
supra, 2011 WL 2006882 at *1.
Plaintiff has not offered any evidence concerning how
the disciplinary hearing was conducted.
Although plaintiff
claims he was unable to call witnesses, he acknowledges that he
was found not guilty of one of the four charges -- causing
substantial bodily injury to a correctional officer -- albeit on
a "technicality."
He vaguely states that" [e]very one who had
witnessed that incident
are [sic] aware of what had really
taken place" during his altercation with Garrett (Complaint at
II.D.).
He also states in conclusory fashion that "Captain
Rhodes and Warden Amicucci both know that I am not guilty of any
of the charges" and that "I have the proof to substantiate my
innocence of all the charges that were written against me"
(Complaint at II.D.).
Based on the present record,
that plaintiff is also unlikely to succeed here.
I conclude
His statements
are vague or conclusory as to what potential witnesses know or
would testify to, and, thus, I cannot conclude that he was
unfairly denied the right to call key witnesses.
Furthermore,
the disciplinary hearing's finding that plaintiff was not guilty
on one of the four charges suggests that plaintiff was able to
refute the charges.
Taken together, the evidence plaintiff
25
offers at this time cannot demonstrate that he was denied "a fair
opportunity to refute" all charges against him.
In summary, because I conclude that plaintiff's Due
Process
aim seems unlikely to be of substance or to have "some
chance of success," Ferrelli v. River Manor Health Care Ctr.,
supra, 323 F.3d at 204 (citation omitted), his motion is denied
with respect to this claim.
b. Cruel and Unusual
Punishment Claim
I conclude that plaintiff's final claim, that confine
ment in SHU represented cruel and unusual punishment, is also
unlikely to succeed.
It is well established that segregated
confinement is not, in and of
ment.
self, a cruel and unusual punish
Hutto v. Finney, 437 U.S. 678,686 (1978)
(lilt is per
fectly obvious that every decision to remove a particular inmate
from the general prison population for an indeterminate period
could not be characterized as cruel and unusual."); Sostre v.
McGinnis, 442 F.2d 178, 192 (2d C
on other grounds as recognized
12, 15 (2d Cir. 1997)
. 1971)
(en banc), overruled
Davidson v. Scully, 114 F.3d
(per curiam)
(" It is undisputed
. that
segregated confinement does not itself violate the Constitu
26
tion.").
The Second Circuit has held that in order for a plain
tiff
[t]o demonstrate that the conditions of his confinement
constitute cruel and unusual punishment, the plaintiff
must satisfy both an objective test and a subjective
test. First, the plaintiff must demonstrate that the
conditions of his confinement result in unquestioned
and serious deprivations of basic human needs. Second,
the plaintiff must demonstrate that the defendants
imposed those conditions with deliberate indifference.
Welch v. Bartlett, 125 F. App'x 340, 342 (2d Cir. 2005), quoting
Jolly v. Coughlin, 76 F.3d 468, 480 (2d Cir. 1996)
(internal
citations and quotation marks omitted) .
Plaintiff offers no evidence that he suffered serious
deprivation of his basic human needs, nor does he offer evidence
that defendants subjected him to such conditions with deliberate
indifference.
His description of his confinement in SHU is
limited to the statement that he was placed there following the
altercation with Garrett and another conclusory statement that
"they refuse to release me from the S.H.U. and endanger[] my
health and safety"
(Complaint at II.D.).
He appears to be
arguing that his segregation alone represents cruel and unusual
punishment, which is contrary to controlling authority.
Because
plaintiff does not describe how his health and safety are endan
gered, I conclude that this claim is unlikely to succeed.
Because I conclude that plaintiff's claim seems unlikely to be of
27
substance or have "some chance
success," Ferrelli v. River
Manor Health Care Ctr., supra, 323 F.3d at 204
(citation omit
ted), his motion is denied with respect to this claim.
IV.
Conclusion
Accordingly, for all the foregoing reasons, peti
tioner's motion for the appointment of counsel is denied without
prejudice to renewal.
nied by an
Dated:
Any renewed application should be accompa
fidavit establishing the merits.
New York, New York
September 1, 2011
SO ORDERED
HENRY PITMAN
United States Magistrate Judge
Copies mailed to:
Mr. Owen Q. McAllister, Sr.
10-A-1321
Elmira Correctional Facility
1879 Davis Street
P.O. Box 500
Elmira, New York 14902
Mr. Owen Q. McAllister, Sr.
10-A-1321
Downstate Correctional Facility
Box F
121 Red Schoolhouse Road
Fishkill, New York 12524-00445
28
Christie L. D'Alessio, Esq.
Assistant County Attorney of Counsel
Westchester County Attorney's Office
600 Michaelian Office Building
148 Martine Avenue
White Plains, New York 10601
29
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?