Toliver v. The City of New York et al

Filing 57

ORDER ADOPTING REPORT AND RECOMMENDATION: for 46 Report and Recommendations. Accordingly, the Court adopts Judge Francis's recommendation and dismisses those claims without prejudice to having them adjudicated in the parallel action, No. 10 Ci v. 822. For the reasons stated above, the Court finds Plaintiffs objections to be without merit. With respect to the rest of the Report, the Court finds that there was no clear error. Accordingly, the Court adopts the Report in its entirety for the r easons stated above. The Clerk of the Court is respectfully directed to terminate the motions located at Doc Nos. 11 and 29 and close this case. Should Plaintiff wish to renew his motion to amend the Complaint, he may do so. However, for the reasons set forth above, the Court notes that any claims raised in an amended complaint should be different from those currently pending in Plaintiffs other actions. (Signed by Judge Richard J. Sullivan on 3/19/2012) Copies Mailed By Chambers. (jfe)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
_____________________
No. 10 Civ. 7798 (RJS)

_____________________

MICHEL TOLIVER,
Plaintiff,
VERSUS

THE CITY OF NEW YORK, et al.,
Defendants.
__________________
ORDER ADOPTING REPORT & RECOMMENDATION
March 19, 2012

__________________
RICHARD J. SULLIVAN, District Judge:
On October 13, 2010, incarcerated pro
se Plaintiff Michel Toliver filed this action
against the City of New York, the
Department of Corrections, and various
individual
defendants,
alleging
that
corrections officers threatened him and
retaliated against him in violation of his
constitutional rights. Before the Court are
Plaintiff’s objections to the Report and
Recommendation (the “Report”) of the
Honorable James C. Francis IV, Magistrate
Judge,
dated
August
30,
2011,
recommending that Defendants’ motions to
dismiss the Complaint be granted. The
Court has also reviewed and considered
Defendants’
response
to
Plaintiff’s
objections, and Plaintiff’s reply.1 For the
1

By Order dated November 23, 2011, the Court
stated that it would not consider Plaintiff’s reply,
noting that Rule 72 of the Federal Rules of Civil

following reasons, the Court adopts the
Report in its entirety.
I. BACKGROUND
Plaintiff has several lawsuits pending in
the Southern District of New York,
including Michel Toliver v. New York City
Department of Corrections, No. 10 Civ. 822
(RJS) (JCF) (the “822 Action”), in which
Procedure does not provide for additional
submissions beyond the party’s initial objections and
the opponent’s response, and that Plaintiff had made
his reply without first seeking leave to do so in
violation of the Court’s Individual Practices. (Doc.
No. 51.) On November 27, 2011, Plaintiff submitted
a letter requesting that the Court consider his reply.
Although additional briefing is unnecessary in this
matter, as stated in the Court’s November 23, 2011
Order, the Court has nonetheless considered
Plaintiff’s reply, which does not alter the Court’s
analysis in this matter.

Plaintiff alleges, inter alia, that he was
assaulted by corrections officers at Rikers
Island. This action and at least one other
action, with docket number 10 Civ. 6666
(RJS) (JCF), raise claims that officers at
Rikers Island retaliated against Plaintiff as a
result of his filing the first suit (the “822
Action”).

captains” (id. at 4). Additionally, in a letter
appended to the Complaint, dated May 21,
2010, but bearing the docket number of the
822 Action, Plaintiff asserts that he has been
wrongfully placed in punitive segregation
and subjected to other punitive conduct
without due process of law. (Id. app.) The
same allegations are briefly noted in the
“Relief” section of the Complaint. (Id. at 8.)
The May 21, 2012 letter had previously been
mailed to the Court in connection with the
822 Action, and the Court granted Plaintiff
leave to amend his Complaint in the 822
Action to reflect the allegations therein.
(No. 10 Civ. 822 (RJS) (JCF), Doc. No. 13.)

In this action, Plaintiff alleges that on
September 4, 2010, while he was in custody
at the George R. Vierno Center at Rikers
Island, the individual Defendants, all
corrections officers, approached his cell and
harassed him. Specifically, Plaintiff alleges
that Defendant McArdle2 asked Plaintiff
“how [he] enjoyed being dirty and not eating
and not using the phone or showering.”
(Compl. 4.) Shortly thereafter, Defendants
Makas, Merced, Tapia, Almanzar, and an
unidentified Officer Doe appeared and
called him a “snitch,” in reference to his
filing the 822 Action. (Id.) Plaintiff alleges
that Tapia stated that they were in Plaintiff’s
cell “to make sure [Plaintiff] got what’s
coming to [him]. Like a few broken bones.”
(Id.) Merced then stated “we are here to
break a few bones,” and Makas threatened to
accuse Plaintiff of using force against an
officer. (Id. at 4-5.) In an apparent attempt
to place contraband in his cell, Doe then
threw razor blades into Plaintiff’s cell which
Plaintiff flushed down the toilet. (Id. at 5.)
Plaintiff adds generally that “[a]lmost every
day Captain Merced does something or
causes something illegal to occur to me.”
(Id. at 6.)

On March 10, 2011, Defendants filed a
motion to dismiss this action. By letter
dated March 17, 2011, Plaintiff moved to
amend his Complaint in the 822 Action to
include the claims that were alleged in this
case. On April 20, 2011, the Honorable
Ronald L. Ellis, Magistrate Judge, to whom
both matters were then referred, issued an
Order denying Plaintiff’s request. (Doc. No.
32.) Defendants’ motion to dismiss was
fully submitted as of June 29, 2011. On July
14, 2011, Plaintiff submitted a Motion to
Amend the Complaint with various
attachments.
On July 28, 2011, this matter and the
cases with docket numbers 10 Civ. 822 and
10 Civ. 6666 were reassigned to Magistrate
Judge Francis, and on August 30, 2011,
Judge Francis issued the Report, in which he
recommended that the Complaint in this
action be dismissed.
Judge Francis
concluded that, because Plaintiff did not
allege physical injury resulting from the
incident of which he complained, he was
prohibited from seeking compensatory
damages under 42 U.S.C. § 1997e(e), and
for similar reasons failed to state a claim
under the Eighth Amendment or for
retaliation. (Report 6, 9-11.) Because
Plaintiff is no longer in the custody of the

Plaintiff states that he is “in fear for [his]
life” (id. at 6) and suffers from “continued
emotional and mental stress and anguish[,]
panic attacks[,] nightmares and extreme
paranoia being around these officers and
2

The Complaint identifies a “Corrections Officer
Macadle”; however, later filings identify this
individual as Corrections Officer McArdle.

2

Pro se filings are read liberally and
interpreted “to raise the strongest arguments
that they suggest,” Pabon v. Wright, 459
F.3d 241, 248 (2d Cir. 2006) (internal
quotation marks omitted); however, where
objections are “conclusory or general,” or
where the plaintiff “simply reiterates his
original arguments,” the report should be
reviewed only for clear error. Walker v.
Vaughan, 216 F. Supp. 2d 290, 292
(S.D.N.Y. 2002) (quoting Barratt v. Joie,
No. 96 Civ. 0324 (LTS) (THK), 2002 WL
335014, at *1 (S.D.N.Y. Mar. 4, 2002)
(citations omitted)); accord Cartagena v.
Connelly, No. 06 Civ. 2047 (LTS) (GWG),
2008 WL 2169659, at *1 (S.D.N.Y. May 23,
2008).

New York City Department of Corrections,
Judge Francis further determined that
injunctive relief was inappropriate. (Id. at 68.) Finally, with respect to Plaintiff’s claims
for punitive and nominal damages, Judge
Francis noted that the letter attachment to
the Complaint raising due process claims is
identical to one submitted in the 822 Action,
and thus the claims should be adjudicated in
that case rather than in this case. (Id. at 1112.)
Plaintiff now objects to the Report on
the grounds that Judge Francis failed to
consider his Amended Complaint in ruling
on Defendants’ motion to dismiss. Plaintiff
further argues that Judge Francis erred in
failing to consider other alleged incidents of
abuse in determining whether Plaintiff
established prior injury. Finally, Plaintiff
objects to dismissal of his due process
claims.

III. DISCUSSION
A. The Amended Complaint
Plaintiff’s principal objection to the
Report is that Judge Francis did not consider
the claims raised in his Amended
Complaint, and instead ruled on the original
Complaint “as if the Amended Complaint
never existed.” (Obj. 20.) Plaintiff is
apparently referring to the submission dated
July 14, 2011, which contained a letter, a
motion to amend, and an amended
complaint.3

II. LEGAL STANDARD
A court may accept, reject, or modify, in
whole or in part, the findings or
recommendations made by a magistrate
judge. Fed. R. Civ. P. 72(b); Grassia v.
Scully, 892 F.2d 16, 19 (2d Cir. 1989). A
court may accept those portions of a
magistrate’s report to which no specific,
written objection is made, as long as the
factual and legal bases supporting the
findings are not clearly erroneous. See
Greene v. WCI Holdings Corp., 956 F.
Supp. 509, 513 (S.D.N.Y. 1997) (citing Fed.
R. Civ. P. 72(b) and Thomas v. Arn, 474
U.S. 140, 149 (1985)). To the extent that a
party makes specific objections to a
magistrate’s findings, the court must
undertake a de novo review of Petitioner’s
objections. See 28 U.S.C. § 636(b)(1);
United States v. Male Juvenile, 121 F.3d 34,
38 (2d Cir. 1997).

3

Due to a deficiency in the motion to amend, it was
not immediately filed and was sent to Judge Ellis for
a determination as to whether the filing could be
accepted or must be sent back to Plaintiff to cure the
problem. However, it appears that the document was
neither accepted nor sent back to Plaintiff. Although
Judge Francis notes in the Report that Plaintiff filed a
document entitled “Amended Complaint” in response
to Defendants’ motion to dismiss, Judge Francis
elected to treat the submission as a responsive
briefing. (See Report 4 (“Notwithstanding its title,
this [“amended complaint”] is effectively the original
Complaint annotated in response to the arguments
raised by the defendants.”).)

3

therefore address for the purpose of this
Order only those claims raised in the
Original Complaint.

“A party may amend its pleading once as
a matter of course within . . . 21 days after
service of a motion under Rule 12(b).” Fed.
R. Civ. P. 15(a)(1)(B). Otherwise, “a party
may amend its pleading only with the
opposing party’s written consent or the
court’s leave.” Fed. R. Civ. P. 15(a)(2).
Although Plaintiff indicates in his
submission that he provided Defendants
with a copy of the proposed Amended
Complaint in early 2011, there is no
evidence that Plaintiff attempted to file it
with the Court prior to July 2011. (See Obj.
38 (“The Amended Complaint was served
properly on the defendants several months
‘prior’[;] because there was no answer, the
motion to amend on those grounds was sent
to [the] Court along with exhibits and the
‘Amended Complaint.’”).) In any event, it
is clear that leave to amend the Complaint
was never granted, and that Plaintiff’s
submission of the so-called amended
complaint took place well after briefing on
the instant motion had closed on June 29,
2011.

B. Eighth Amendment
Plaintiff objects to Judge Francis’s
conclusion that Plaintiff failed to establish a
violation of his Eighth Amendment rights.
The law is clear that “verbal harassment,
standing alone, does not amount to a
constitutional deprivation.” Cole v. Fisher,
379 F. App’x 40, 43 (2d Cir. 2010) (citing
Purcell v. Coughlin, 790 F.2d 263, 265 (2d
Cir. 1986)). Plaintiff does not appear to
dispute as much. Instead, Plaintiff asserts
that he “raised much more than one ‘single’
claim as the defendants assert.” (Obj. 8.)
Specifically, Plaintiff objects to Judge
Francis’s conclusion that “[a]lthough the
Plaintiff cites to injuries that he suffered
prior to September 4, 2010, in his opposition
papers, those injuries involve different
defendants, dates, and circumstances from
the underlying incident here and are
therefore irrelevant to his claims in this
case.” (Report 10.) Plaintiff argues that
Judge Francis’s assertion that the defendants
are different is erroneous, because Captain
Merced, a defendant here, was involved in
many other incidents in which Plaintiff
alleges he was injured, and because the
Warden is or would be a defendant with
respect to all claims. (See, e.g., Obj. 12-14,
29, 35.)

Moreover, it should be noted that by
Order dated April 20, 2011, Judge Ellis
expressly denied Plaintiff’s prior motion to
“amend his complaint in the case with the
docket number 10 Civ. 0822 to include the
claims that are alleged in this related case,
docket number 10 Civ. 7798” on the
grounds that “consolidation of these cases is
not appropriate.” (Doc. No. 32.) Plaintiff
did not appeal or object to Judge Ellis’s
Order, nor did he move for reconsideration.
Thus, Plaintiff’s attempt to amend the
Complaint in this case to add claims that
appear to parallel those in the 822 Action
would amount to a circumvention of Judge
Ellis’ April 20, 2011 Order.

Plaintiff is correct in noting that the
injuries discussed throughout his papers do
not involve entirely different alleged
perpetrators. However, the decisive factor is
that Plaintiff has alleged physical assault and
physical injuries resulting from separate
incidents. If, as Plaintiff alleges, he was
injured in other incidents, he may be able to
bring an action under § 1983 for those
incidents. Plaintiff cannot, however, collect

Accordingly, it cannot be said that Judge
Francis’s decision to rule on Defendants’
motion based only on the original
Complaint was error.
The Court will
4

physical injury’ it certainly could have; but
it did not.” (Id. at 40.)4

compensatory damages for the wrong
alleged here – the September 4, 2010
harassment – on the basis of what he has
claimed in the Complaint. Other physical
injuries are immaterial to that conclusion.

Although the statute provides little
guidance regarding what is meant by
“prior,” courts have repeatedly recognized
that § 1997e(e) requires an inmate seeking
emotional damages for an incident to first
establish that he also suffered physical
injury as a result of the same incident. See
Henry v. Davis, No. 10 Civ. 7575 (PAC)
(JLC), 2011 WL 3295986, at *3 (S.D.N.Y.
Aug. 1, 2011) (Oct. 20, 2011) (“[Plaintiff]
does not allege that he suffered any physical
injury as a result of the incidents he
complains about and therefore cannot
recover compensatory damages.” (emphasis
added)), adopted by 2011 WL 5006831;
Bridgewater v. Taylor, 698 F. Supp. 2d 351,
361 (S.D.N.Y. 2010) (“Because [the
plaintiff] has alleged no physical injury in
relation to the emotional harm caused by the
deprivation of his property, he cannot satisfy
this requirement.”); McGregor v. Jarvis, No.
9:08-CV-770 (GLS/RFT), 2010 WL
3724133, at *4 (N.D.N.Y. Aug. 20, 2010)
(“Neither in his Complaint, Deposition
Testimony, nor Opposition to Defendants’
Motion does [the plaintiff] establish any
physical injury he suffered due to the
conduct at issue in this litigation.”), adopted
by 2010 WL 3724131 (Sept. 16, 2010).

Even if Plaintiff had stated a claim for a
violation of his Eighth Amendment Rights,
Judge Francis concluded that he would not
be entitled to compensatory damages
because he failed to establish prior physical
injury. Plaintiff objects on the grounds that
he was physically assaulted on December
11, 2009, January 24, 2010, March 18, 2010,
May 10, 2010, May 19, 2010, and May 20,
2010. (Obj. 3-4.) Plaintiff further alleges he
was “denied food, showers, (outside
recreation for months), threats of breaking
my bones if I came out of the cell for the
shower, all of my property had been
destroyed, I also raised a due process
violation for not only placing me in punitive
segregation illegally but also making me,
forcing me to live while in punitive
segregation in Red ID status, enhanced
restraints [and] rear cuffed.” (Id. at 8-9.)
The Prison Litigation Reform Act
(“PLRA”) prohibits inmates from bringing
federal actions “for mental or emotional
injury suffered while in custody without a
prior showing of physical injury.” 42
U.S.C. § 1997e(e). Plaintiff argues that
Judge Francis misread the PLRA and the
meaning of the word “prior.” (Obj. 11.)
Specifically, Plaintiff asserts that his “only
responsibility is to show ‘prior’ physical
injury along with emotional and mental
injury,” which he has accomplished through
his other cases, such as the 822 Action. (Id.
at 31.) He argues that “[i]f Congress wanted
to include the phrase ‘accompanied by

Indeed, it cannot be that any injury that
Plaintiff has suffered at the hands of
Defendants is properly considered for
purposes of emotional distress damages
under § 1997e(e). Rather, the only incident
properly considered in this inquiry is
whether Plaintiff suffered physical injury as
4

Plaintiff asserts in his Reply that he can cite
numerous cases to support his argument. (Reply 6.)
The fifteen cases listed by Plaintiff without comment
as to their applicability to this case appear to stand
for general principles relating to inmate treatment and
due process, and do nothing to change the Court’s
analysis.

5

September 4, 2010 incident. Plaintiff has
not submitted any objection, though, to
Judge Francis’s finding that Plaintiff’s
allegations of verbal harassment fell short of
stating a claim of retaliation.
After
reviewing the record, the Court finds that
Judge Francis’s recommendation that
Plaintiff’s retaliation claim be dismissed was
not clearly erroneous. See Carl v. Griffin,
No. 08 Civ. 4981 (RMB) (MHD), 2011 WL
723553, at *5 (S.D.N.Y. Mar. 2, 2011)
(“[V]erbal harassment, or even threats, are
generally held not to rise to the level of
adverse action that will support a First
Amendment retaliation claim.” (internal
quotation marks and citations omitted));
Bartley v. Collins, No. 95 Civ. 10161 (RJH),
2006 WL 1289256, at *6 (S.D.N.Y. May 10,
2006) (“[V]erbal threats such as ‘we going
to get you, you better drop the suit,’ do not
rise to the level of adverse action.”).

a result of the incident that took place on
September 4, 2010 – the lone event alleged
in the Complaint. To allow Plaintiff to
recover
compensatory
damages
for
emotional distress based on alleged physical
injury stemming from a separate incident
would subvert the intent of the PLRA, which
was aimed at preventing frivolous litigation
in the form of emotional damages claims
that can be difficult to disprove. See Dawes
v. Walker, 239 F.3d 489, 496 (2d Cir. 2001)
(“Congress recognized that, unlike physical
injuries, emotional injuries are inherently
difficult to verify and therefore tend to be
concocted for frivolous suits.”), overruled
on other grounds, Swierkiewicz v. Sorema
N.A., 534 U.S. 506 (2002).
To the extent that Plaintiff alleges that
other incidents took place in which he
suffered physical injury, Plaintiff is free to
bring suits with respect to those incidents –
indeed, Plaintiff has done so in numerous
active cases in this district. However, the
task currently before the Court is to
determine whether Plaintiff has established
that he is entitled to compensatory damages
for the September 4, 2010 incident that
forms the sole basis of this Complaint.
Clearly, he has not done so. Accordingly,
the Court finds that Judge Francis did not err
in concluding that Plaintiff failed to allege
physical injury as is necessary under
§ 1997e.

D. Due Process
Plaintiff argues that Judge Francis erred
in recommending dismissal of his due
process claims – which were raised in a
letter appended to the Complaint – since
they were also filed in the 822 Action.
According to Plaintiff, if the due process
claim is “good enough to include with case
0822, it is good enough to survive” the
motion to dismiss here. (Obj. 19.) Plaintiff
adds that “[e]ven if [his] claim is somewhat
lacking[,] the entire claim should not be
dismissed due to [the] emotional distress
factor.” (Id. at 46.) According to Plaintiff,
“the due process violation was obvious”
because Plaintiff prevailed in an Article 78
hearing. (Id. at 41.) Plaintiff further asserts
that Judge Francis’s recommendation that
the Complaint be dismissed without
prejudice was “proof of a good claim.” (Id.)

C. First Amendment
Similarly, Plaintiff’s only objection to
Judge Francis’s recommendation that his
retaliation claim be dismissed is that “there
were many other claims raised in the
Amended Complaint ‘other than’ verbal
abuse and threats.” (Obj. 40-41.) For the
reasons stated above, the other incidents
alleged in Plaintiff’s submissions are not
relevant to the question of whether his
constitutional rights were violated in the

Regardless of whether Plaintiff’s due
process allegations constitute a “good
claim,” the materials attached to the

6

Complaint were labeled as "10 Civ. 0822,"
and Plaintiff sent the same letter to the Court
in that case approximately four months
before filing the instant action. By Order
dated June 24, 2010, the Court stated that
Plaintiff would be permitted to amend his
Complaint in the 822 Action to add the
allegations discussed in the May 21, 2010
letter. (No. 10 Civ. 822 (RJS) (JCF), Doc.
On July 13, 2010, Plaintiff
No. 13.)
amended his Complaint in the 822 Action,
adding claims based on the alleged assaults,
improper
infractions,
and
punitive
segregation described in the May 21 letter.
(ld, Doc. No. 19.) Plaintiffs claims here
are thus duplicative of those already raised
in the 822 Action, and as such are subject to
dismissal by this Court regardless of
whether they prove to be meritorious. See
Curtis v. CWbank, NA., 226 F.3d 133, 13839 (2d Cir. 2000) ("As part of its general
power to administer its docket, a district
court may stay or dismiss a suit that is
duplicative of another federal court suit. ...
[P]laintiffs have no right to maintain two
actions on the same subject in the same
court, against the same defendant at the
same time." (citing Colorado River Water
Conservation Dist. v. United States, 424
U.S. 800, 817 (1976))).

terminate the motions located at Doc Nos.
11 and 29 and close this case.
Should Plaintiff wish to renew his
motion to amend the Complaint, he may do
so. However, for the reasons set forth
above, the Court notes that any claims raised
in an amended complaint should be different
from those currently pending in Plaintiffs
other actions.
SO ORDERED.

~~
United States District Judge

Dated: March 19,2012
New York, NY
Plaintiff Michel Toliver
pro se.

IS

proceeding

Defendants are represented by Joseph
Anthony Marutollo, New York City Law
Department, 100 Church Street, New York,
NY 10007.

Accordingly, the Court adopts Judge
Francis's recommendation and dismisses
those claims without prejudice to having
them adjudicated in the parallel action, No.
10 Civ. 822.

USDSSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#: ______~~--DATE FILED: 3) \'\12.0\'1.

IV. CONCLUSION

For the reasons stated above, the Court
finds Plaintiffs objections to be without
merit. With respect to the rest of the Report,
the Court finds that there was no clear error.
Accordingly, the Court adopts the Report in
its entirety for the reasons stated above. The
Clerk of the Court is respectfully directed to

7

A copy of this Order was mailed to:
Michel Toliver
10-A-4565
Shawangunk Correctional Facility
P.O.Box 700
Wallkill, NY 12589

8