Mateo v. Alexander et al

Filing 15

MEMORANDUM OPINION AND ORDER: For the foregoing reasons, defendants' Motion 8 to Dismiss is GRANTED. The Clerk of the Court shall mark this action closed and all pending motions denied as moot. (Signed by Judge Loretta A. Preska on 3/13/2012) (rdz)

USDCSDNY
DOCUMF.]\'T

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

ELECTHflNICAl..LY FILED

DOC#.
DATE F)'LED:

"Bifl-t II a-

CESAR MATEO,
10 Civ. 8427 (LAP)

(DCF)

Plaintiff,
-against-

MEMORANDUM OPINION
AND ORDER

T. ALEXANDER, CORRECTION SERGEANT,
and J. ERNS, CORRECTION OFFICER,
Defendants.
~--

________

~

______________

~

___________

.

___________ J

LORETTA A. PRESKA, Chief United States District Judge:
This

is

one

of

prisoner

currently

Facility

("Sing

several

incarcerated

Sing"),

prison officials

actions

under

has
42

Cesar Mateo

at

Sing

brought

U. S. C.

§

pro
1983

(\\Mateo" ),

Sing
se

a

Correctional

against

("Section

various

1983").

In

this case,

Mateo is suing two employees of the New York State

Department

of

Sergeant

Correctional

Tracy Alexander

("DOCS"):

Facilities

("Alexander")

Corrections

and Corrections Officer

Jeffrey Erns ("Erns"). Both defendants worked at the Green Haven
Correctional
incarcerated
harassment

Facility
there
and

from

( "Green
2003

retaliation

to

Haven" )
2008.

against

liability against Alexander.

1

while

Mateo

raises

Erns

and

Mateo
claims

was
of

supervisory

Mateo first
in

2008

in

Compl.)

the

No.

Alexander,

filed these claims against Erns and Alexander
Northern

08-0881

District

(NAM)

of

York.

filed

(N.D.N.Y.

New

Aug.

(Mateo

18,

v.

2008),

Mateo's case was subsequently transferred here because

the complaint's allegations involved incidents at Green Haven,
which

is

(NAM)

(N.D.N.Y.

2008. )

in

This

without

this

district.

filed

Court

Aug.

(Mateo

18,

v.

2008),

Order

subsequently

prejudice

dismissed

failure

properly

for

No.

Alexander,

dated

08-0881
Aug.

Mateo's

complaint

exhaust

to

26,

his

administrative remedies before filing suit. Mateo v. Alexander,
No. 08 Civ. 8797 (RJH) (DCF) , 2010 WL 431718 (S.D.N.Y. 2010).
Mateo
November
resulting

refiled
8,
in

his

claims

2010

with

the

instant

against

proof

of

action.

Alexander

and

administrative
On May

9,

Erns

on

exhaustion,

2011,

defendants

moved to dismiss the complaint in its entirety. On May 12, 2011,
Mateo filed an affirmation in opposition to the motion,

and on

June 28, 2011, defendants replied. For the reasons that follow,
the Court grants defendants' motion.

BACKGROUND

For purposes of this motion,

the Court takes as true the

following facts.
Mateo's

claims

occurred in 2008.

stem

from

three

In the first,
2

incidents

on June 16,

that

2008,

allegedly

while Mateo

was

being moved

housing

unit,

"looked

at

'shi t . ' "

from

defendant
[his]

his

procedure,"
Erns also

Erns

~

6.)

and

that fuck up or I

(Id.)

Mateo

processed" i

then

searched

in

violation

items

of

Mateo

filed

he filed a

of

Mateo,
much

property,

"established

(Id.J

property.

at Mateo,

. Who complaint

a

grievance

that

[sic]

day

second grievance a

"urgent

need

to

defecate." Erns made Mateo wait
the toilet,

F-Block

"too

Mateo's

I ike

"shut

but

too much
it

"was

not

few days later which

(Id. ~~ 6, 10.)

The second incident occurred on June 21,
an

the

will write you a ticket for interfering with

was processed and fully appealed.

expressed

to

had

Mateo's

few unfriendly words

the search" and "Jackass .

"

said

and

confiscated

leveled a

and

Erns

permission

unit

"belligerently approached"

property,"

(Compl .

without

the A-Block housing

used

[sic]

a

2008,

when Mateo

toilet

room

"a long period of time"

to the point that Mateo was

"feeling sick."

to

to use

(Id.

~

7.) While he was waiting for permission to use the toilet, Mateo
heard Erns tell co workers that Mateo "is the inmate who wrote
the

grievance

retaliatory.

against

(Id.)

me,"

Mateo

later

processed and fully appealed.
Finally,

on August 10,

long period of
toilet.

(Id.

time"

~ 8.)

implying

that

filed

a

Erns'

actions

grievance,

which

were
was

(Id. ~ 10.)
2008,

Erns again made Mateo wait "a

to enter his

assigned cell

and to use a

Mateo was eventually forced to ask Erns for a

3

"plastic bag and toilet tissue to defecate l l
not

allow him access to a

but

eventually

Mateo

to

Erns
use

According to the complaint,

(Id.)

the

allowed

toilet i

filed

a

grievance against

processed and fully appealed.
The
1983.

instant
~

(Id.

against

action

was

1.)
and

Erns

It

Alexander,

and

retaliating

Alexander

to

"exercise

"harassing

declaratory
and

the

toilet

in

his

cell.

it.
Erns
~

(Id.

~

(Id.

9.)

The

same day

and Alexander,

which was

10.)

brought

pursuant

to

42

U. S. C.

§

seeks orders of protection and separation

harassing

intervene,"

responded by saying no

defendant Alexander witnessed

situation and failed to stop

Mateo

because Erns would

an

order

against

Mateo,

reasonable
relief

retaliating

directing
an

Erns

order

supervisory

that

Erns

against"

acted

$10,000 plus the filing costs of this action.

(Id.

stop

directing

judgment

to

unlawfully

in

and

Mateo,

to

damages

of

~ 14.)

DISCUSSION
I.

Standard of Review on a Motion to Dismiss
On a rule 12(b) (6)

complaint's
inferences

Purchaser
2009).

motion to dismiss,

allegations
in

as

true

and

the

plaintiff's

favor.

Antitrust

Litigation,

585

To survive a motion to dismiss,

"enough facts

to state a

the Court accepts the
draws

In

F.3d

all
re

677,

DDAVP
692

Direct

(2d

Cir.

a complaint must allege

claim to relief that
4

reasonable

is plausible on

Starr v.

its face."
321

544,

(quoting Bell Atlantic Corp.

(2d Cir.2010)

U.S.

Sony BMG Music Entertainment,

570

(2007)).

plaintiff pleads
the

reasonable

misconduct
(2009).

content

inference

that

Ashcroft

If the factual
than

complaint

should be dismissed.

Iqbal,

129

S. Ct.

facts that are

"mere

at

Twombly,

550

that

the

v.

allows

the

defendant

Iqbal,

is

129

court

to draw

liable

S. Ct.

for

1937,

the
1949

averments permit no reasonable inference

stronger

the

v.

"A claim has facial plausibility when the

factual

alleged."

592 F.3d 314,

possibility

1950).

Starr,

Thus,

of

592

F.3d at

"[w] here

'merely consistent with'

misconduct,"

a

321

the

(quoting

complaint

pleads

a defendant's liability,

it

'stops short of the line between possibility and plausibility

of

'entitlement to relief.'

Twombly,

550 U. S.

plausibility,
true

and

at

the

Court

draw [s]

favor.

Harris v.

Court

does

"threadbare

557).

all

of

129 S.Ct.

at 1949

(quoting

In applying this standard of

takes

all

"factual

inferences

572 F.3d 66,

credit

reci tals

Iqbal,

reasonable

Mills,

not

"

"mere
the

71

allegations
in

the

of

a

to

But the

statements"
cause

be

plaintiff's

(2d Cir.2009).

conclusory

elements

facial

of

or

action.

11

Iqbal, 129 S.Ct. at 1949.
Because

"[p] ro se plaintiffs might

of attorneys,"

Springs v. Board of Education,

2010 WL 4068712,
to

less

not

stringent

at

*2

(S.D.N.Y.

pleading

Oct.

standards.
5

14,

have

the

No.

2010),

Erickson

legal ken

10 Civ.

1243,

they are held

v.

Pardus,

551

U.S.

89 1

pro

94

se

"The court must construe complaints filed by

litigants

strongest
No.

(2007).

10

liberally

arguments

Civ.

5027

that

they

2010

1

and

WL

interpret

suggest.

at

4844395 1

to

raise

Fehrlin

II

them

v.

Liebowi tz I

*1

(S.D.N.Y.

the

Nov.

29 1

2010) .
II.

Relief Requested
Mateo has asked for injunctive relief and monetary damages

against

both

Alexander

defendants.
injunctive

for

incarcerated

However
relief,

in

Green

Haven.

Mateo

cannot

sue

because

Mateo

is

I

An

inmate's

transfer

Erns
no

and

longer

out

of

a

facility moots any claims he has for injunctive relief against
officials of
263

272

1

that

(2d

facility.

Cir.

2006).

See

Salahuddin

Accordingly,

v.

467

F.3d

claim

for

Gaard l

only Mateo's

damages is properly before this court.
Mateo's
against

the

complaint

further

defendants

in

capacities. The defendants,
in

their

lawsuits

official

citizen

agencies,

absent

the

immunity.

See

89,

intend
1983.

to
See

100

of

It

a

their

The

state

State

he

icial

sovereign

Quern

Jordan I

Eleventh
against

consent
Sch.

is well

abrogate
v.

that

seeks damages
and

individual

however, may not be sued for damages

state's

Pennhurst

(1984)

both

capacities.

a

U.S.

by

indicates

or
&

a

Hasp.

332,

state

bars

or

its

statutory waiver of

immunity when

6

that

v.

settled that

440 U.S.

Amendment

it

Halderman,

465

Congress did not
enacted Section

343-44.

Thus

I

to the

extent

Mateo

official

suing

capacities,

316

York,

is

F.3d

93,

the

his

defendants

claims

101

are

for

damages

barred.

(2d Cir.2002)

See

in

Davis

(affirming

their
v.

dismissal

New

of

Section 1983 claims for damages against state officials in their
official

capacities

construes

Mateo's

on Eleventh Amendment
damages

claims

grounds).
claims

as

defendants in their individual capacities,

The

Court

against

the

which are not barred

by the Eleventh Amendment. See Farid v. Smith, 850 F.2d 917, 921
(2d Cir .1988) .
III. Retaliation Claims

Mateo alleges that Erns retaliated against him by verbally
harassing him,

searching his personal property,

and confiscating

his

(the

and

property

June

16,

2008

incident),

by

verbally

harassing him and making him wait to use the bathroom (the June
21,

2008 and August 10,

2008 incidents), all in retaliation for

filing grievances.
To state a claim under 42 U. S. C.
lege

two

elements:

(1)

that

a

1983,

§

right

a plaintiff must
secured

by

Constitution or laws of the United States was violated and
that

(2)

the violation was committed by a person acting under the

color of state law.
S.Ct. 2250,
that

the

West

101 L.Ed.2d 40

retaliation

violates

See

the

against

right

v.

Atkins,

487 U.S.

42,

48,

108

(1988). The Second Circuit "has held
a

prisoner

for

to petition government
7

pursuing
for

the

a

grievance
redress

of

grievances guaranteed by the First and Fourteenth Amendments and
is actionable under
Cir.1996).

(2d

However,

constitute
broad,

is

whi

actionable

it

not

"the scope of

retaliation

true

that

in

Dawes v.

response

every

prison
to

534 U.S.

308

F.3d

180,

as recognized by Phelps v.
(2d

r.

2002).

"To

is

provide

evidence

constitutionally protected,
against

him,

and

(2)

(3)

that

(1)

was

a

Temple,

349 Fed.Appx.

594,

596

(2d Cir.

v. Coughlin, 344 F.3d 282, 287 (2d

An

"adverse

action"

is

summary

a plaintiff

his

[an official]

there

/I

speech

was

took an adverse

causal

relationship

between the protected speech and the adverse action."
v.

ion

Kapnolas,

defeat

rst Amendment retaliation claim,

action

prisoner's

Sorema

n.6

492 93

is

2001),

(2002)

187

to

a

se to a retal

judgment on his
"required

setting

can

on other grounds by Swierkiewicz v.

506

239 F.3d 489,

that

(2d Cir.

Walker,

overruled sub nom.
N.A.,

conduct

the

exercise of a constitutional right gives
claim./I

89 F.3d 75, 80

1983./1 Graham v. Henderson,

§

2009)

Williams

(citing Scott

r.2003)) .

"retaliatory

conduct

that

would

deter a similarly situated individual of ordinary firmness from
exercising his or her constitutional
320 F.3d 346,

353

(2d Cir.

rights./I

Davis

v.

Goord,

2003). Actions below this threshold

are deemed de minimis and outside the ambit of actionable First
Amendment retaliation.
(2d

Cir.

1999)

(per

Davidson v.

curiam).

Chestnut,

The
8

"test

193 F. 3d 144,
is

objective,

150
not

subjective,

and must

lawsuit

would

chilling.

/I

be

so,

otherwise

Davidson

v.

(S.D.N.Y.2006) .

courts

be

the

the

very

dispositive

Bartholome 1

Because

fabricated,

since

must

on

460

retaliation

commencement
the

"examine

of

436 ,

447

are

prisoners'

easily

claims

retaliation with skepticism and particular care," Colon,
at 872,

requiring "detailed fact pleading

motion to dismiss.
Cir.

1983).

Flaherty v.

ff

Wholly

Coughlin,

conclusory

claims

of

a

issue

F.Supp.2d
claims

of

of

58 F.3d

to wi thstand a
713

F. 2d 10,

retaliation

dismissed on the pleadings alone." Graham v.

Henderson,

13

(2d

"can

be

89 F.3d

75, 79 (2d Cir 1996) .
The

Court

consti tute

finds

an

that

"adverse

none

of

the
for

action"

actions
the

pled

purposes

by

Mateo

of

his

retaliation claims.
Verbal Harassment
"The

Second

disrespectful

Circuit

has

held

comments directed at

that

an inmate 1

, [i]nsulting

or

generally do not

rise to the level of conduct that would deter an individual from
exercising

his

or

her

Phillip,

No.

CV-04-669

(E.D.N.Y.

Aug.

2,

353

(2d Cir.2003))

2006)
i

constitutional
(FB) (LB) ,

2006

(quoting Davis v.

see also Dawes,

239

rights.
WL

ff

Battice

2190565,

Goard,
F.3d at

at

v.
*7

320 F.3d 346,
489

("Certain

means of retaliation may be so de minimis as not to inhibit or
punish an inmate (s right of free

9

speech.

Many verbal

responses

by officials of resentment or even ridicule would fall into this
safe harbor of

permitted responses.")

(internal

citations

and

quotations omitted). None of Ern's alleged comments rises beyond
the level of
v.

"insulting,"

320

Goord,

F.3d

at

"disrespectful,"

353.

As

such,

or

they

"hostile." Davis
cannot

retaliation claim. See also Dawes, 239 F.3d at 489
may be required to tolerate more
before

a

retaliatory

adverse.")

action

support

a

("[P)risoners

than average citizens,

taken

against

them

is

considered

(internal alterations and citation omitted) .

Property search
The Second Circuit has not addressed whether a cell search1
can

constitute

an

adverse

Amendment

retaliation

(E.D.N.Y.

Aug.

2,

action

claim.

2006).

for

Battice,

Nevertheless,

purposes

2006

WL

of

a

2190565,

First
at

*7

many district courts in

this circuit have concluded that a cell search is insufficient
to support

such a

8581 (MBM) ,

2002

WL

(collecting cases)
cases).
U.S.

claim.

i

See

1968329,
Battice,

Salahuddin

at

*5

v.

Mead,

(S.D.N.Y.

2006 WL 2190565,

Aug.
at *7

These courts have reasoned under Hudson v.

517

(1984)

that

retaliatory reasons,

a

search of

an

No.

inmate's

95 Civ.

26,

2002)

(collecting
Palmer,

cell,

even

468

for

does not implicate a constitutional right,

1 Plaintiff alleges that his property was searched en route to a
new cell assignment. Such a search is tantamount to a cell
search conducted after transfer, in that the search targets the
same property.

10

because a prisoner has no reasonable expectation of privacy in
his or her prison cell. Battice, 2006 WL 2190565, at *7.
In this case,

because Mateo had no expectation of privacy

in his effects at the time of his June 16, 2008 transfer from A­
Block to F-Block, Erns's search does not constitute an "adverse
action."

Despite

Mateo's

characterization,

the

Court

finds

nothing capricious or unreasonable about a search of an inmate's
property by a corrections officer during a cell reassignment.
Mateo
property

also
that

claims
Erns

that

Erns

"considered

retaliatorily

confiscated

despi te

contraband,"

other

corrections officers having previously identified such property
as permitted (Compl. Ex. A). But Mateo fails to specify further
the nature of this property in his grievance or complaint,
the Central Office Review Committee

("CORC")

the property in its grievance acceptance,

does not

and

mention

so the Court has no

way of determining whether such property was in fact contraband.
Mateo's

claims

conclusory"

for

retaliatory

confiscation

and subject to dismissal.

are

Graham

v.

thus

"wholly

Henderson,

89

F.3d at 79.
Bathroom Delays
Mateo

alleges

that

Erns

twice

made

him wait

to

use

the

bathroom. As for the June 21, 2008 incident, Mateo only alleges
that he waited "a long period of waiting time."
The

CORC,

in

investigating

his
11

grievance,

(CompI. Ex. B.)

concluded

that

the

wait was

"approximately 15 minutes.

Mateo has attached

(Id.)

II

the CORC's statement to his complaint and does not contravene
their conclusion in this

respect.

incident, although Mateo

leges that he "waited over an hour to

return

cell

to

his

assigned

administration control room.

As

for

the August

the

time

(Compl.

II

from

Ex.

C),

[he]

10 I

2008

left

the

he states in his

grievance that two "long period[s] of time" had passed after he
left the administration control room but before he first asked
to go to the bathroom.

(Id.)

His complaint, carefully read, does

not contradict the conclusion that he waited before requesting
bathroom

access

and

the

CORC's

investigation

appropriately

concluded that the total delay could not have been more than 35
minutes.
The temporary deprivation of the right to use the toilet,
serious physical harm or a

in the absence
contamination,

does

not

constitutional violation.
2746 (AGS) ,

1998

WL

rise

to

the

level

See Whitted v.

259929,

at

*2

serious risk of
of

an

Lazerson,

(S.D.N.Y.

No.

1998)

objective
96

Civ.

(denying

prisoner's claim of cruel and unusual punishment where prisoner
stated that he was once made to wait "damn near hour [sic] and a
half" without use of the toilet

I

at which point he urinated

his pants). Even the absence of a working toilet in one's prison
cell for approximately ten hours, absent an

legation that the

prisoner risked contamination by contact with human waste,
12

"does

not rise to the level of cruel and unusual punishment. II

Keane, No.

95 Civ.

9941

(SS),

1997 WL 576088,

at *4-5

adom v.
(S.D.N.Y.

Sept.17, 1997).
An

act,

of

constitutional

course,

need

violation

to

that

individually

the

be

cumulative

permissible

See,

e.g.,

2010 WL 532393,
or

elsewhere

the

an

"adverse

hour,

firmness

Davis

v.

minimis

from

and

2008

albeit

nevertheless

dissuade

2010).

No case in this Circuit

to

established

have

that

"deter

the

C 08-4123

how

his

two

incidents

WL 4534043,

at

*8

her

353.

outside

(citing Dawes,

in

(pr) ,

repeated

acts

ambit

are

of

239 F.3d at 493);
(W.D.

of

constitutional

Such

the

this

Mich.

case,

for no more than

individual
or

at

many

SI

constitute an adverse action.

a [n]

F. 3d

therefore

protection." Id.

Lewis,

320

The Court

No.

exercising

Goord,

action"

Smith,

concludes

not

a

(N.D.Cal.

at *1

would

of

repeated

each of which delayed Mateo's bathroom access
an

level

and thus constitute an "adverse

Harrison v.

appears

Court

the

of

could

denials of bathroom access might
But

to

239 F.3d at 491.

effect

acts

someone from filing grievances,
action."

rise

considered

See Dawes,

for a retaliation claim.
recognizes

not

2008)

ordinary
rights.

"simply

II

de

constitutional

c.f. Boles v.
(entertaining

retaliation claim by prisoner made to wait to use the bathroom
until

urinating

claim from a

on himself

in public,

and distinguishing

such

simple averment of "being made to wait to use the

l3

bathroom until after count. II)
MHP

(pr) ,

WL 3490238,

2010

Curry v.

i

at

(N.D.Cal.

*2

No.

Morring,

C 09 3751

(refusing to

2010)

dismiss retaliation claim where prisoner with "chronic diarrhea

ll

was refused access to a clean toilet with toilet paper) .
In sum, because none of the actions allegedly taken by Erns
or

observed

individual

by

of

Alexander
ordinary

constitutional rights,lI

would

"deter

firmness

from

a

similarly

exercising

situated

his

or

her

id., Mateo's retaliation claims fail as

a matter of law and are dismissed.
III. Harassment Claims

Mateo

also

"harassment
"treatment

11

alleges

under 42 U.S.C.

Eighth

Amendment1s

infliction of pain.

proscription
See

of

Helling

v.

Under the Eighth Amendment

(1993).

excessive

force

against

l

prisoners

sing under the

unnecessary
McKinneYI

and
U.S.

509

wanton
25 1

31

prison officials may not use
1

and

they

prison conditions. Farmer v. Brennan

II

constitute

As a challenge to Mateo1s

the Court treats Mateo1s claims as

l

"humane

1983.

§

actions

. in prison and the conditions under which he is

confined

ll

Erns1s

that

1

must

511 U.S.

maintain
825 1

832

(1994).

But not every injury to a prisoner is a constitutional

one;

plaintiff

a

alleging

an

Eighth Amendment

violation must

show that it is objectively "sufficiently serious
that

the

prisoner must

not

be

14

deni

"the

ll
l

which means

minimal

civilized

measure of life IS necessities" and that conditions must be more
than just "restrictive and even harsh." Id. at 833-34.
Applying the stringent standards of Eighth Amendment law to
the allegations, it is
Mateo's
fall

ear that none of Ern's actions violated

constitutional

far

short

of

rights.

the

Ern's

degree

of

verbal

harassment

seriousness

claims

demanded by the

Eighth Amendment and show no "unnecessary and wanton infliction
of pain" by prison
327,
be

342

ficials. See Rivera v. Goord, 119 F.Supp.2d

(S.D.N.Y.2000)

read

to

assert

("To

an

extent that the complaint can

Eighth

Amendment

cruel

and

punishment

claim

plaintiff,

such conduct is not actionable under

§

790

(2d

also

Purcell

v.

based

Coughlin,

on

alleged

F.2d

verbal

263,

265

unusual

harassment

of

1983. It)

see

i

Cir.1986)).

Ern's search of Mateo's property incident to his intake likewise
raises

no

constitutional

violation because

as

noted

above,

a

prisoner has no reasonable expectation of privacy in his prison
cell. Battice, 2006 WL 2190565, at *7i Hudson, 468 U.S. 517i see
also Willis v.

Artuz,

the

of

incidents

privacy,

301 F.3d 65,

confinement

for

69
a

(2d Cir.
convict

2002)
is

the

("One of
loss

of

which serves the legitimate purpose of retribution as

well as the institutional security needs of the prison system.
not prepared to recognize as

We therefore hold that "society
legitimate
[convict]

any

subj ect i ve

expectat ion

might have in his prison cell. 1/)
15

of

privacy

that

(citing Hudson,

a

468

u.s.

at

bathroom,

526)

And

finally,

an hour's

delay

in accessing

the

in the absence of serious physical harm or a serious

risk of contamination,

is shorter than delays that other courts

in this Circuit have not found to be actionable under
1998 WL 259929,

See Whitted,

§

1983.

at *2; Odom, 1997 WL 576088, at *4

5.

Because none

of

sufficiently serious

the

actions

to violate

allegedly taken by Erns
the

Eighth Amendment,

was

Mateo's

harassment claims fail as a matter of law and are dismissed.
Likewise, because the court has found no liability by Erns,
there

can be

no

supervisory liability

against

Alexander.

All

claims against Alexander are likewise dismissed.
CONCLUSION

For
Dismiss

the
is

foregoing

GRANTED.

The

reasons,
Clerk

of

defendants'
the

Court

Motion
shall

mark

action closed and all pending motions denied as moot.
SO ORDERED.
Dated:

New York, New York
March U' 2012

~Q~

LORETTA A. PRESKA
CHIEF U.S.D.J.

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