Peoples v. Fischer et al
Filing
49
OPINION AND ORDER: re: 33 MOTION to Dismiss. filed by D. Rock, Lucien J. LeClaire, Jr., William Lee, Norman Bezio, Karen Bellamy, Brian Fischer, K O' Connor, Ward. For the foregoing reasons, defendants' motion to dismiss is granted in part and denied in part. The Clerk of the Court is directed to close this motion [Docket No. 33]. A status conference has been scheduled for June 12, 2012, at 4:30 p.m. in Courtroom 15C. (Signed by Judge Shira A. Scheindlin on 5/2/2012) (jfe)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
._--------------------------------------------------
)(
LEROY PEOPLES,
Plaintiff,
OPINION AND ORDER
- against
11 Civ. 2694 (SAS)
BRIAN FISCHER, LUCIEN LECLAIRE,
JR., DOCS OFFICE OF COUNSEL,
WILLIAM LEE, PETER A. CRUSCO,
ERIC C. ROSENBAUM, RICHARD A.
BROWN, LT. L. WARD, SGT.,
O'CONNOR, C.O. MALARE, C.O.
DROWN, NORMAN BEZIO, D. ROCK,
LT. WARD, and KAREN BELLAMY,
Defendants .
_--------------------------------------------------
.
)(
SHIRA A. SCHEINDLIN, U.S.D.J.:
I.
INTRODUCTION
Leroy Peoples, proceeding pro se, brings this action against, inter
alia: Brian Fischer, Commissioner of the New York State Department of
Correctional Services ("DOCS"); Lucien J. Leclaire Jr., Deputy Commissioner of
DOCS; Office of Counsel for DOCS; William Lee, Superintendent of the Green
Haven Correctional Facility ("Green Haven"); Richard Ward, a Green Haven
Lieutenant; Sergeant K. O'Connor; Green Haven Correction Officers ("C.O.s")
1
Curtis Drown and Malare, Norman Bezio, Director of the Special Housing Unit
(“SHU”); David Rock, Superintendent of the Upstate Correctional Facility
(“Upstate”); and Karen Bellamy, Director of the Inmate Grievance Program
(“IGP”), Central Office Review Committee (“CORC”) (collectively, the
“defendants”).1
Peoples seeks compensatory and punitive damages and injunctive
relief pursuant to section 1983 of Title 42 of the United States Code (“section
1983”). Peoples alleges that defendants deprived him of rights and privileges
secured by the First, Fourth, Sixth, Eighth, and Fourteenth Amendments to the
United States Constitution. Specifically, plaintiff brings the following claims: a
Fourth Amendment claim resulting from a pat frisk and subsequent search of his
prison cell; an Eighth Amendment cruel and unusual punishment claim resulting
from his three-year sentence to SHU confinement; an Eighth Amendment claim
regarding his altercation with a fellow inmate; a Fourteenth Amendment due
process claim arising in connection with his disciplinary hearing; and a right of
1
Former defendants Peter A. Crusco, Eric C. Rosenbanm and Richard
A. Brown were previously dismissed in this Court’s December 1, 2011 Opinion
and Order. Additionally, a review of the docket sheet indicates that the Complaint
(“Compl.” or “Complaint”) was filed on April 18, 2011. Rule 4(m) of the Federal
Rules of Civil Procedure provides that if a defendant is not served within 120 days
after a complaint is filed, the claims may be dismissed without prejudice. Because
Malare has not been served to date, the claims against him are dismissed without
prejudice pursuant to Rule 4(m).
2
access to the courts claim under the First and Sixth Amendments.
Defendants now move to dismiss Peoples’ remaining claims pursuant
to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) on the following grounds:
(1) failure to state a claim; (2) failure to exhaust administrative remedies; (3) lack
of personal involvement; (4) Eleventh Amendment immunity; and (5) qualified
immunity. For the reasons discussed herein, defendants’ motion is granted in part
and denied in part.
II.
BACKGROUND2
Peoples is currently an inmate at Upstate and was previously
an inmate at Green Haven.3 On October 5, 2009, while Peoples was at Green
Haven, Sergeant O’Connor and C.O. Malare approached him while he was at his
industry work program and performed a pat and frisk search.4 Peoples was then
2
These facts are drawn from Peoples’ Complaint and the exhibits
annexed thereto. In addition, because Peoples is proceeding pro se, the factual
allegations made in his Opposition to Motion to Dismiss dated January 5, 2012
(“Pl. Opp.”), together with the exhibits annexed thereto, will be treated as part of
the Complaint to the extent they are consistent with the Complaint. See Gill v.
Mooney, 824 F.2d 192, 195 (2d Cir. 1987) (considering pro se plaintiff’s affidavit
in opposition to defendant’s motion to dismiss in reviewing district court’s
dismissal of claim).
3
See Compl., I(A) and II(A).
4
See id. III(D) ¶ 2.
3
escorted to his cell, F-Block 150, where O’Connor and Malare searched his cell.5
Peoples alleges that certain papers were seized and that his personal mail, legal
mail, family photos, clothing and other miscellaneous property was scattered all
over his cell.6
Peoples was immediately taken to the SHU.7 The next day, October 6,
2009, Peoples was served with the Inmate Misbehavior Report (the “Report”),
which alleged that he violated rules 107.218 and 113.309 of the Standards of Inmate
Behavior rule book.10 The Report further states that on October 5, 2009, prior to
the search, C.O. O’Connor was given a packet of papers sent from the Queens
5
See id.
6
See id. ¶¶ 1, 11.
7
See id. ¶ 2.
8
See id. Rule 107.21 states that “[a]n inmate shall not file or record
any document or instrument of any description which purports to create a lien or
record a security interest of any kind against the person or property of any officer
or employee of the Department, the State of New York, or the United States, absent
prior written authorization from the superintendent or a court order authorizing
such filing.” 7/24/09 Inmate Rule Book Additions, Ex. A to Compl., at 6.
9
Rule 113.30 provides that “[a]n inmate shall not possess any Uniform
Commercial Code (UCC) Article 9 Form, including but not limited to any
financing statement, . . . correction statement. . . , or information request . . .,
whether printed, copied, typed or hand written, or any document concerning a
scheme involving an inmate’s ‘strawman.’” Id.
10
See Report, Ex. A to Compl., at 1.
4
County District Attorneys Office.11 The cover letter with the materials identified
the papers as “U.C.C. [and] other financial claims that are bogus [and] without
legal basis.”12 The Report states that the subsequent search of Peoples’ cell
“produced approx[imately] 148 documents which all also appear to violate the
above referenced charges.”13
On October 13, 2009, a misbehavior report hearing was conducted.14
Peoples alleges that he was walked through the “normal formalities of a hearing.”15
At the end of the hearing, Peoples was sentenced to three years confinement in the
SHU, a three-year loss of phone, package and commissary privileges, and seventytwo months recommended loss of good time credit.16
Peoples appealed the hearing disposition to SHU Director Bezio who
denied his appeal.17 In November of 2009, while still confined in the SHU and
11
See id.
12
Id.
13
Id.
14
See Compl., III(D) ¶ 3.
15
Id.
16
See id. See also Superintendent Hearing Disposition Report, Ex. A to
Compl., at 2. At the time of the hearing, Peoples had not yet accrued seventy-two
months of good time credit. See Compl., III(D) ¶ 3.
17
See id. ¶ 4.
5
under Superintendent Rock’s watch, Peoples was involved in a fist fight with
fellow inmate Larry Allen and lost a tooth.18 In April 2010, Peoples drafted an
Article 78 motion addressing some of the issues raised in the instant Complaint.
Upon his return from Court, however, the Article 78 motion was confiscated by
corrections officers acting under Rock’s orders.19
On March 7, 2011, Peoples filed a grievance in connection with
alleged violations of his constitutional rights.20 The grievance referenced
violations of various Constitutional amendments including the First, Sixth, and
Fourteenth Amendments.21 Peoples complained about the addition of rules 107.21
and 113.30 of the Standards of Inmate Behavior rule book and complained that he
was affected by these rules by being placed in the SHU for three years along with
three years of lost phone, package and commissary privileges.22
On March 9, 2011, Peoples received a response from the Inmate
Grievance Review Committee (“IGRC”) and simultaneously appealed to the
18
Id. ¶¶ 8, 9.
19
See id. ¶ 17(g).
20
See 3/7/11 Inmate Grievance, Ex. A to Compl., at 4.
21
See id.
22
See id.
6
Superintendent of DOCS.23 On March 15, 2011, Superintendent Rock responded
to Peoples’ appeal.24 Two days later, on March 17, 2011, Peoples appealed to the
CORC.25 On April 18, 2011, Peoples commenced the instant action. On June 8,
2011, he received a response from the CORC.26
Peoples generally suffers from “stress, fear . . . depression and other
psychological impacts” which are side effects from his confinement in the SHU,
which he has described as “psychological torture.”27 Peoples alleges that
Superintendent Rock was personally involved by continuously and unlawfully
confining Peoples in the SHU, upholding the CORC’s determination of Peoples’
appeal, and being in a supervisory role at the time Peoples was involved in a fist
fight with Allen.28 Similarly, Peoples alleges that Bellamy, the Director of the
CORC, was personally involved by virtue of upholding the rules that Peoples
challenged, suppressing Peoples’ “communication, forbidding access to the court
23
See Compl., III(D) ¶ 8. See also 3/9/11 IGRC Response, Ex. A to
Compl., at 5.
24
See 3/15/11 Response from Inmate Grievance Program
Superintendent, Ex. A to Compl., at 6.
25
See id.
26
See CORC’s 6/8/11 CORC Response, Ex. B to Pl. Opp., at 1.
27
Compl., III(D) ¶¶ 7, 9.
28
See id. ¶¶ 1, 8.
7
and law books, [and] authorizing the seizure” of Peoples and his papers.29 SHU
Director Bezio was alleged to be personally involved when he “affirmed and
confirmed the disposition of unlawful confinement and revoked privileges” in
violation of the aforementioned constitutional amendments.30
Peoples alleges that Lieutenant Ward was personally involved because
he authorized the seizure of Peoples and his papers as well as his unlawful
confinement in the SHU.31 C.O. Drown’s alleged personal involvement arises from
sentencing Peoples to three years in the SHU with loss of privileges and loss of
good time credit.32
Peoples alleges that Fischer was personally involved because he
facilitated the enactment of the rules that Peoples was accused of violating.33
Peoples also claims that after Fischer learned of the violations of Peoples’
constitutional rights, he failed to remedy the situation.34 Fischer allegedly created
the “policy procedure, or custom which violated the constitutional rights and
29
Id.
30
Id. ¶ 4.
31
See id. ¶¶ 1, 10.
32
See id. ¶ 1.
33
See id. ¶ 14.
34
See id.
8
allowed [it] to continue.”35 Similarly, Deputy Commissioner Leclaire’s
involvement was based on the preparation of the July 24, 2009 memorandum
advising Superintendents Lee and Rock of the addition of rules 107.21 and
113.30.36
Superintendent Lee’s only involvement seems to be that he received
the package of materials from the District Attorneys’s office and sent them to C.O.
O’Connor, which precipitated the search of Peoples’ cell.37 C.O. O’Connor’s
personal involvement in this action was limited to the search he performed of
Peoples’ cell and the subsequent preparation of the Report.38
III.
LEGAL STANDARDS
A.
Motion to Dismiss Under Rule 12(b)(6)
In deciding a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), the court “accept[s] all factual allegations in the complaint as
true, and draw[s] all reasonable inferences in the plaintiff’s favor.”39 The court
35
Id.
36
See id. ¶ 5. See also 7/24/09 Inmate Rule Book Additions, Ex. A to
Compl., at 7.
37
See Compl., III(D) ¶ 1.
38
See id. ¶¶ 1, 2.
39
Wilson v. Merrill Lynch & Co., Inc., 671 F.3d 120, 128 (2d Cir. 2011)
(quotation marks and citation omitted).
9
then evaluates the sufficiency of the complaint under the “two-pronged approach”
suggested by the Supreme Court in Ashcroft v. Iqbal.40 First, a court “‘can choose
to begin by identifying pleadings that, because they are no more than conclusions,
are not entitled to the assumption of truth.’”41 “Threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice” to
withstand a motion to dismiss.42 Second, “[w]hen there are well-pleaded factual
allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement for relief.”43 To survive a Rule 12(b)(6)
motion to dismiss, the allegations in the complaint must meet a standard of
“plausibility.”44 A claim is facially plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”45 Plausibility “is not akin to a probability
40
556 U.S. 662, 679 (2009).
41
Hayden v. Patterson, 594 F.3d 150, 161 (quoting Iqbal, 556 U.S. at
664). Accord Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 59 (2d
Cir. 2010).
42
Iqbal, 556 U.S. at 663 (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)).
43
Id. at 670. Accord Kiobel v. Royal Dutch Petroleum Co., 621 F.3d
111, 124 (2d Cir. 2010).
44
Twombly, 550 U.S. at 564.
45
Iqbal, 556 U.S. at 678 (quotation marks and citation omitted).
10
requirement,” rather, plausibility requires “more than a sheer possibility that a
defendant has acted unlawfully.”46
“In considering a motion to dismiss for failure to state a claim
pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the
complaint, documents attached to the complaint as exhibits, and documents
incorporated by reference in the complaint.”47 However, the court may also
consider a document that is not incorporated by reference, “where the complaint
‘relies heavily upon its terms and effect,’ thereby rendering the document ‘integral’
to the complaint.”48 A court may also take judicial notice of “the status of other
lawsuits in other courts and the substance of papers filed in those actions.”49
Where the plaintiff is proceeding pro se, his pleadings must be
considered under a more lenient standard than that accorded to “formal pleadings
46
Id. (quotation marks and citation omitted).
47
DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010)
(citing Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)).
48
Id. (quoting Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir.
2006)). Accord Global Network Commc’ns, Inc. v. City of N.Y., 458 F.3d 150, 156
(2d Cir. 2006).
49
Schenk v. Citibank/Citigroup/Citicorp, No. 10 Civ. 5056, 2010 WL
5094360, at *2 (S.D.N.Y. Dec. 9, 2010) (citing Anderson v. Rochester-Genesee
Reg’l Transp. Auth., 337 F.3d 201, 205 n.4 (2d Cir. 2003)).
11
drafted by lawyers,”50 and must be “interpret[ed] . . . to raise the strongest
arguments they suggest.”51 These same principles apply to briefs and opposition
papers submitted by pro se litigants.52 Notwithstanding liberal treatment of their
pleadings, pro se status does not relieve a plaintiff from satisfying the pleading
requirements set forth above.53
B.
Leave to Amend the Complaint
Under Federal Rule of Civil Procedure 15(a), leave to amend a
complaint should be “freely given when justice so requires.”54 A court should not
dismiss a pro se complaint for failure to state a claim “without granting leave to
amend at least once when a liberal reading of the complaint gives any indication
that a valid claim might be stated.”55 However, “it is well established that leave to
50
Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). Accord
Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) (“Because [plaintiff] is a pro
se litigant, we read his supporting papers liberally.”).
51
Burgos, 14 F.3d at 790.
52
See Ortiz v. McBride, 323 F.3d 191, 194 (2d Cir. 2003); Burgos, 14
F.3d at 790.
53
See Praseuth v. Werbe, 99 F.3d 402 (2d Cir. 1995) (“Failure to
comply with Rule 8(a) may result in dismissal of a complaint, even if the pleader is
proceeding pro se.”) (citing Prezzi v. Schelter, 469 F.2d 691, 692 (2d Cir. 1972)).
54
Fed. R. Civ. P. 15(a).
55
Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quotation
marks and citations omitted).
12
amend a complaint need not be granted when amendment would be futile.”56
IV.
APPLICABLE LAW
A.
Section 1983
Section 1983 states, in relevant part, that:
[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress .
. .57
Section 1983 “does not create a federal right or benefit; it simply
provides a mechanism for enforcing a right or benefit established elsewhere.”58
“The purpose of [section]1983 is to deter state actors from using the badge of their
authority to deprive individuals of their federally guaranteed rights and to provide
56
Ellis v. Chao, 336 F.3d 114, 127 (2d Cir. 2003).
57
42 U.S.C. § 1983.
58
Morris-Hayes v. Board of Educ. of Chester Union Free Sch. Dist., 423
F.3d 153, 159 (2d Cir. 2005) (citing Oklahoma City v. Tuttle, 471 U.S. 808, 816
(1985)). Accord Gonzaga Univ. v. Doe, 536 U.S. 273, 285 (2002) (“‘[O]ne cannot
go into court and claim a ‘violation of § 1983’ – for § 1983 by itself does not
protect anyone against anything.’”) (quoting Chapman v. Houston Welfare Rights
Org., 441 U.S. 600, 617 (1979)).
13
relief to victims if such deterrence fails.”59
1.
Personal Involvement
In 1995, the Second Circuit held that the personal involvement of a
supervisory defendant may be shown by evidence that: (1) the defendant
participated directly in the alleged constitutional violation, (2) the defendant, after
being informed of the violation through a report or appeal, failed to remedy the
wrong, (3) the defendant created a policy or custom under which unconstitutional
practices occurred, or allowed the continuance of such a policy or custom, (4) the
defendant was grossly negligent in supervising subordinates who committed the
wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of
inmates by failing to act on information indicated that unconstitutional acts were
occurring.60
However, in 2009, the Supreme Court held that “[b]ecause vicarious
liability is inapplicable to . . . [Section] 1983 suits, a plaintiff must [prove] that
each Government-official defendant, through the official’s own individual actions,
has violated the Constitution.”61 “Accordingly only the first and third Colon
59
Wyatt v. Cole, 504 U.S. 158, 161 (1992).
60
See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
61
Iqbal, 556 U.S. at 677 (citations omitted) (explicitly rejecting the
argument that “a supervisor’s mere knowledge of his subordinate’s discriminatory
14
factors have survived the Supreme Court’s decision in Iqbal.”62
B.
Exhaustion of Remedies
The Prison Litigation Reform Act (“PLRA”), provides that “[n]o
action shall be brought with respect to prison conditions under section 1983 of this
title, or any other Federal law, by a prisoner . . . until such administrative remedies
as are available are exhausted.”63 This requirement “applies to all inmate suits
about prison life, whether they involve general circumstances or particular
episodes, and whether they allege excessive force or some other wrong.”64
The requirement to exhaust avaliable remedies, “refer[s] to the
procedural means, not the particular relief ordered,” since “one ‘exhausts’
processes, not forms of relief.”65 While exhaustion is a prerequisite to suit, the
“PLRA exhaustion requirement is not jurisdictional.”66
purpose amounts to the supervisor’s violating the Constitution”).
62
Spear v. Hugles, No. 08 Civ. 4026, 2009 WL 2176725, at *2
(S.D.N.Y. July 20, 2009).
63
42 U.S.C. § 1997e(a).
64
Porter v. Nussle, 534 U.S. 516, 532 (2002).
65
Booth v. Churner, 532 U.S. 731, 739 (2001).
66
Woodford v. Ngo, 548 U.S. 81, 101 (2006).
15
DOCS has a well established inmate grievance resolution process.
To exhaust their administrative remedies, inmates must complete all three steps.
Inmates must: “(1) file a grievance with the [Inmate Grievance Resolution
Committee (“IGRC”)] . . . ; (2) appeal to the superintendent within four working
days of receiving the IGRC’s written response. . . ; and (3) appeal to the CORC in
Albany, New York within four working days of receipt of the superintendent’s
written response.”67 The CORC then has thirty days to review the appeal and
render a decision on the grievance.68
Additionally, the Second Circuit has held that “the grievant need not
lay out the facts, articulate legal theories, or demand particular relief. All the
grievance need do is object intelligibly to some asserted shortcoming.”69 As noted
by the Second Circuit, “[u]ncounselled inmates navigating prison administrative
procedures without assistance cannot be expected to satisfy a standard more
stringent than that of notice pleading.”70 The “PLRA’s exhaustion requirement . . .
require[s] that prison officials be ‘afford[ed] . . . time and opportunity to address
67
Abney v. McGinnis, 380 F.3d 663, 668 (2d Cir. 2004).
68
See 7 N.Y.C.C.R. § 701.5.
69
Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004).
70
Id.
16
complaints internally.’”71 “In order to exhaust . . . inmates must provide enough
information about the conduct of which they complain to allow prison officials to
take appropriate responsive measures.”72
An appeal is not exhausted until an inmate appeals to the CORC and
receives a final decision regarding his grievance.73 The Second Circuit, however,
has recognized that in some situations a prisoner who has failed to fully exhaust
administrative remedies may survive a motion to dismiss. In Hemphill v. New
York,74 the Second Circuit announced a three-part inquiry “appropriate in cases
where a prisoner plaintiff plausibly seeks to counter defendants’ contention that the
prisoner has failed to exhaust available administrative remedies as required by the
PLRA.” In examining a complaint the court should determine:
[First,] whether administrative remedies were in fact
‘available’ to the prisoner. [Second ], . . . whether the
defendants’ own actions inhibiting the inmate’s exhaustion
of remedies may estop one or more of the defendants from
raising the plaintiff’s failure to exhaust as a defense.
[Third], [i]f the court finds that administrative remedies
were available to the plaintiff, and that the defendants are
71
Id. (quoting Porter, 534 U.S. at 524-25).
72
Johnson, 380 F.3d at 697.
73
See Partee v. Grood, No. 06 Civ. 15528, 2007 WL 2164529, at *3
(S.D.N.Y. July 25, 2007), aff’d sub nom, Partee v. Wright, 335 Fed. App’x 85 (2d
Cir. 2009).
74
380 F.3d 680, 686-91 (2d Cir. 2004).
17
not estopped and have not forfeited their 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 prisoner’s failure to comply with administrative
procedural requirements.75
As noted by the Second Circuit in Hemphill, where an inmate does not
receive a response to a grievance, there may be a question as to whether further
administrative remedies are available.76 As noted by the Supreme Court “[t]he
benefits of exhaustion can be realized only if the prison grievance system is given a
fair opportunity to consider the grievance. The prison grievance system will not
75
Id.
76
See id. at 690, n.6 (citing Jernigan v. Stuchell, 304 F.3d 1030, 1032
(10th Cir. 2002) (“agree[ing with other circuits] that the failure to respond to a
grievance within the time limits contained in the grievance policy renders an
administrative remedy unavailable”); Lewis v. Washington, 300 F.3d 829, 833 (7th
Cir. 2002) (stating that prison’s failure timely to respond renders administrative
remedies unavailable); Foulk v. Charrier, 262 F.3d 687, 698 (8th Cir. 2001)
(holding that defendants failed to prove non-exhaustion where they presented no
evidence to refute plaintiff’s contention that he could not pursue grievance further
after warden did not respond to his grievance); Underwood v. Wilson, 151 F.3d
292, 295 (5th Cir. 1998) (holding that “available administrative remedies are
exhausted when the time limits for the prison’s response set forth in the prison
Grievance Procedures have expired”)). See also Whitington v. Ortiz, 472 F.3d 804,
807-08 (10th Cir. 2007) (“[A] prisoner cannot be required to wait indefinitely for a
response to his final grievance before he may seek judicial review. That is, when
prison officials fail to timely respond to a grievance, the prisoner has exhausted
‘available’ administrative remedies under the PLRA.”); Giano v. Goord, 380 F.3d
670, 677 (2d Cir. 2004); Sergent v. Norris, 330 F.3d 1084, 1085 (8th Cir. 2003)
(recognizing that officials’ failure timely to respond to grievance could be basis for
prisoner to show he exhausted available administrative remedies);.
18
have such an opportunity unless the grievant complies with the system’s critical
procedural rules.”77 When a prisoner “complie[s] with all of the administrative
requirements and ma[kes] a good-faith effort to exhaust, he should not be denied
the opportunity to pursue his grievance in federal court simply because the final
administrative decision maker has . . . neglected . . . to issue a final administrative
determination.”78
C.
Favorable Termination Rule
The favorable termination rule provides that a section 1983 plaintiff
who brings a claim that would implicate the validity of his conviction or sentence,
must first prove that the conviction or sentence was vacated or reversed.79
However, this rule does not bar prisoners from bringing section 1983 claims with
respect to the conditions of their confinement that do not implicate the validity of
their underlying sentence. When a section 1983 claim is made, the court must:
consider whether a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or
sentence; if it would, the complaint must be dismissed
unless the plaintiff can demonstrate that the conviction or
sentence has already been invalidated. But if the district
court determines that the plaintiff’s action, even if
77
Woodford, 548 U.S. at 95.
78
Torres v. Carry, 672 F. Supp. 2d 338, 345 (S.D.N.Y. 2009).
79
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
19
successful, will not demonstrate the invalidity of any
outstanding criminal judgment against the plaintiff, the
action should be allowed to proceed.80
A section 1983 claim implicating the deprivation of good-time credits
can be brought only if the good-time credit sanction has been invalidated.81
However, in this Circuit, a prisoner who receives mixed sanctions affecting both
the duration and conditions of confinement at a prison disciplinary hearing can
proceed to challenge those sanctions, as long as the inmate agrees to waive any
challenge to the sanction affecting the length of his confinement.82
D.
Eleventh Amendment Immunity
The Eleventh Amendment immunizes state agencies and officials
acting in their official capacity from suit under section 1983.83 Generally, a suit
may “not be maintained directly against the State itself, or against an agency or
department of the State, unless the State has waived its sovereign immunity.”84
80
Id. at 487.
81
See Edward v. Balisock, 520 U.S. 641, 645 (1997).
82
See Peralta v. Vasquez, 467 F.3d 98,104 (2d Cir. 2006).
83
See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989)
(“[A] suit against a state official in his or her official capacity is not a suit against
the official but rather a suit against the official’s office. As such, it is no different
from a suit against the State itself.”).
84
Florida Dep’t of State v. Treasure Salvors, Inc., 458 U.S. 670, 684
(1982).
20
“‘[It] does not protect [an official] from personal liability if . . . sued in his
‘individual’ or ‘personal’ capacity.’”85
E.
Qualified Immunity
Agency officials performing discretionary functions are generally
granted qualified immunity and are immune from suit provided that “‘their conduct
does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’”86 The Second Circuit has held that “[a]
right is clearly established if (1) the law is defined with reasonable clarity, (2) the
Supreme Court or the Second Circuit has recognized the right, and (3) a reasonable
defendant [would] have understood from the existing law that [his] conduct was
unlawful.”87
To prevail on a motion to dismiss claiming qualified immunity “[n]ot
only must the facts supporting the defense appear on the face of the complaint, but
as with all Rule 12(b)(6) motions . . . the plaintiff is entitled to all reasonable
inferences from the facts alleged, not only those that support his claim, but also
85
Dawkins v. Gonyea, 646 F. Supp. 2d 594, 605 (S.D.N.Y. 2009)
(quoting Farid v. Smith, 850 F.2d 917, 921 (2d Cir. 1988)).
86
Luna v. Pico, 356 F.3d 481, 490 (2d Cir. 2004) (quoting Wilson v.
Layne, 526 U.S. 603, 614 (1999)).
87
Id. (quotation marks and citations omitted).
21
those that defeat the immunity defense.”88
F.
Access to the Courts
“[P]risoners have a constitutional right of access to the courts” that is
“adequate, effective, and meaningful.”89 To establish a constitutional violation
based on denial of access to the courts, a plaintiff must show “actual injury.”90
“[A]n inmate cannot establish relevant actual injury simply by establishing that his
prison’s law library or legal assistance program is subpar in some theoretical
sense.”91 Bounds v. Smith does not “guarantee inmates the wherewithal to
transform themselves into litigating engines capable of filing everything from
shareholder derivative actions to slip-and-fall claims.”92 Meaningful access
requires that inmates be provided the tools they need “in order to attack their
sentences, directly or collaterally, and in order to challenge the conditions of their
confinement.”93 The “[i]mpairment of any other litigating capacity is simply one
88
McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004) (internal
citations omitted). Accord Percinthe v. Julien, No. 08 Civ. 893, 2008 WL
4489777, at *3 (S.D.N.Y. Oct. 4, 2008).
89
Bounds v. Smith, 430 U.S. 817, 821-22 (1977).
90
Lewis v. Casey, 518 U.S. 343, 349 (1996).
91
Id. at 351.
92
Id. at 355.
93
Id.
22
of the incidental (and perfectly constitutional) consequences of conviction and
incarceration.”94
G.
Procedural Due Process
In order to maintain a due process claim with respect to a prisoner’s
disciplinary proceeding, “a plaintiff must establish (1) that he possessed a liberty
interest and (2) that the defendant(s) deprived him of that interest as a result of
insufficient process.”95 A prisoner can only establish a due process claim in
connection with prison disciplinary proceedings resulting in segregative
confinement or loss of privileges by demonstrating that the sanctions “impose[d]
atypical and significant hardship on the inmate in relation to the ordinary incidents
of prison life.”96 “The duration of SHU confinement is a relevant, but not the only,
factor with respect to whether such confinement is ‘atypical.’”97 “Generally,
periods of confinement in SHU lasting fewer than 101 days have been found not to
amount to atypical and significant hardship.”98 The Second Circuit has held that
94
Id.
95
Giano v. Selsky, 238 F.3d 223, 225 (2d Cir. 2001).
96
Sandin v. Conner, 515 U.S. 472, 484 (1995).
97
Alicea v. Howell, 387 F. Supp. 2d 227, 231 (W.D.N.Y. 2005) (citing
Ortiz v. McBride, 380 F.3d 649, 654-55 (2d Cir. 2004)).
98
Dawkins, 646 F. Supp. 2d at 606. Accord Ortiz, 380 F.3d at 655
(prison conditions such as “solitary confinement for twenty-three hours a day,
23
confinement in the SHU for a period of 305 days, without anything more, satisfies
the Sandin standard of atypical and significant hardship.99
With respect to process, “[f]or a prison disciplinary proceeding to
provide due process there must be, among other things, ‘some evidence’ to support
the sanction imposed.”100 Additionally, “[a]n inmate subject to a disciplinary
hearing is entitled to an impartial hearing officer.”101
H.
Fourth Amendment Right to Be Free from Unreasonable Search
and Seizure
“While persons imprisoned for crime enjoy many protections of the
Constitution, it is also clear that imprisonment carries with it the circumscription or
provid[ing] one hour of exercise in the prison yard per day, and permitt[ing] two
showers per week” for less than 101 days does not amount to atypical and
significant hardship).
99
See Colon v. Howard, 215 F.3d 227, 231 (2d Cir. 2000)
(“Confinement in normal SHU conditions for 305 days is in our judgment a
sufficient departure from the ordinary incidents of prison life to require procedural
due process protections under Sandin.”).
100
Ortiz, 380 F.3d at 655 (quoting Gaston v. Coughlin, 249 F.3d 156,
163 (2d Cir. 2001)).
101
Allen v. Cuomo, 100 F.3d 253, 259 (2d Cir. 1996) (citing Wolff v.
McDonnell, 418 U.S. 539, 570-71 (1974)); Patterson v. Coughlin, 905 F.2d 564,
569-70 (2d Cir. 1990) (“[A]n impartial decisionmaker is one who, inter alia, does
not prejudge the evidence and who cannot say . . . how he would assess evidence
he has not yet seen.”).
24
loss of many significant rights.”102 “These constraints on inmates, and in some
cases the complete withdrawal of certain rights, are ‘justified by the considerations
underlying our penal system.’”103 “The curtailment of certain rights is necessary,
as a practical matter, to accommodate a myriad of ‘institutional needs and
objectives’ of prison facilities . . . chief among which is internal security.”104 In
fact, the Supreme Court has repeatedly “confirmed the importance of deference to
correctional officials and explained that a regulation impinging on an inmate’s
constitutional rights must be upheld ‘if it is reasonably related to legitimate
penological interests.’”105 “[T]he Fourth Amendment proscription against
unreasonable searches does not apply within the confines of the prison cell.”106
I.
Eighth Amendment Violations
“[P]rison officials have a duty . . . to protect prisoners from violence
at the hands of other prisoners.”107 However, not every incident causing injury
102
Hudson v. Palmer, 468 U.S. 517, 524 (1984) (citing Bell v. Wolfish,
441 U.S. 520, 545 (1979)).
103
Id. (quoting Price v. Johnston, 334 U.S. 266, 285 (1948)).
104
Id. (internal citations omitted).
105
Florence v. Board of Chosen Freeholders of the County of Burlington,
566 U.S. —, 132 S. Ct. 1510, 1515 (2012).
106
Hudson, 468 U.S. at 526.
107
Farmer v. Brennan, 511 U.S. 825, 833 (1994).
25
“translates into constitutional liability for prison officials responsible for the
victim’s safety.”108 Thus, a plaintiff alleging a violation of the Eighth Amendment
is required to establish two elements. First, that he is incarcerated under
conditions posing a substantial risk of serious harm.109 Second, that the prison
officials had a sufficiently culpable state of mind, or at the very least that they were
deliberately indifferent.110 The first element is objective while the second element
is subjective. The Supreme Court has held that to demonstrate deliberate
indifference, an official must “know[] of and disregard[] an excessive risk to
inmate health or safety; the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he must
also draw the inference.”111
V.
DISCUSSION
A.
Access to the Courts
Peoples’ claim that his right of access to the courts was violated is
dismissed. Peoples has failed to allege that he was denied tools needed to attack
his sentence directly or collaterally, which is the right he is constitutionally
108
Id. at 834.
109
See id.
110
See id.
111
Id. at 837.
26
guaranteed.112 Peoples alleged that defendants actions violated his right to instigate
a special court proceeding under the Uniform Commercial Code for commercial
purposes.113 However, the right to institute such proceedings is not the type of
meaningful access to the courts that is protected.114 As Peoples has failed to allege
that he has been deprived of the right of meaningful access to the courts and that he
suffered actual injury, this claim is dismissed.
B.
Fourth Amendment Claims
Peoples’ claims relating to alleged violations of his Fourth
Amendment rights to be free from unreasonable searches and seizures are similarly
dismissed. Peoples has not pled factual allegations that allow this Court to find
that the pat frisk search or the search of Peoples’ cell were not reasonably related
to legitimate penological interests. As a result, Peoples’ claims arising from the
alleged violations of his Fourth Amendment rights are dismissed.
112
See Lewis, 518 U.S. at 355.
113
See Compl., III(D) ¶ 5.
114
See Lewis, 518 U.S. at 355 (“[i]mpairment of any other litigating
capacity is simply one of the incidental (and perfectly constitutional) consequences
of conviction and incarceration”).
27
C.
Fourteenth Amendment Claims
Defendants have argued that Peoples’ due process claim is barred
because of the favorable termination rule, which provides that a prisoner cannot
bring a section 1983 claim if a judgment in his favor would imply the invalidity of
his conviction or sentence, unless the “conviction or sentence has been
reversed.”115 This rule applies to Peoples’ challenge to his loss of good time
credit.116 Thus, Peoples’ due process claim can only proceed if he agrees to waive
any challenge to any sanction affecting the length of his confinement, including the
loss of good time credit.117
Peoples has adequately pled a protected liberty interest,118 and that he
was deprived of his liberty as a result of insufficient process in that there is no
evidence to support the sanction of three years in the SHU. However, Peoples has
not waived any challenge to the loss of his good time credit. If he were to waive
the challenge to the loss of good time credit, Peoples’ due process claim could
proceed as it would no longer implicate the length of his underlying criminal
115
Heck, 512 U.S. at 487.
116
See Edward, 520 U.S. at 645.
117
See Peralta, 467 F.3d at 104.
118
See Colon, 215 F.3d at 231 (“Confinement in normal SHU conditions
for 305 days is in our judgment a sufficient departure from the ordinary incidents
of prison life to require procedural due process protections under Sandin.”).
28
conviction. Accordingly, until Peoples waives his challenge to the loss of good
time credit, his due process claim is dismissed.
D.
Eighth Amendment Claims
Peoples’ Eighth Amendment claim is dismissed to the extent it is
based on his altercation with Larry Allen. Peoples has not alleged any facts that
would allow this Court to infer that the prison officials acted with deliberate
indifference, in connection with this altercation.119
However, Peoples states a viable Eighth Amendment claim based on
his three-year sentence in the SHU. As previously discussed, three years in the
SHU is an extraordinary amount of time. Construing the allegations in Peoples’
Complaint liberally, Peoples has adequately pled that he was incarcerated under
conditions that pose a substantial risk of harm. Additionally, Peoples’ allegations
that the defendants were deliberately indifferent is plausible given the length of his
confinement in the SHU. Accordingly, Peoples’ Eighth Amendment claim in
connection with his sentence of three years confinement in the SHU, together with
the other loss of privileges, may proceed.
119
See Farmer, 511 U.S. at 834-37. Additionally even if he had made
these allegations, Peoples’ claim in relation to his altercation with Allen would still
be dismissed as he has not exhausted his administrative remedies in connection
with this claim.
29
E.
Exhaustion of Remedies
Defendants’ argument that plaintiff has failed to exhaust his
administrative remedies fails.120 Peoples complied with all of the DOCS’s
procedural rules, thereby giving DOCS a fair opportunity to consider his
grievance.121 Peoples made his final appeal to the CORC on March 17, 2011.122
Pursuant to New York State Regulations, the CORC had thirty days to respond.123
The final denial of his appeal was issued on June 8, 2011.124 Had the CORC timely
provided a response to Peoples’ appeal, he would have received a response prior to
filing the instant action. Defendants do not contest this fact. Peoples complied
with the administrative requirements and made a good faith effort to exhaust. The
CORC’s failure to timely respond does not bar his claim.125 Moreover, the CORC
120
To the extent defendants sought to dismiss the claims based upon lack
of subject matter jurisdiction because they claim Peoples failed to exhaust his
remedies, it should be noted that the PLRA is not a jurisdictional requirement. See
Woodford, 548 U.S. at 101.
121
See id. at 95.
122
See Appeal Statement, Ex. A to Compl., at 6.
123
See 7 N.Y.C.C.R. § 701.5.
124
See 6/8/11 CORC Response, Ex. B to Pl. Opp., at 1.
125
Cf. Torres, 672 F. Supp. 2d at 345. It is unclear how long an inmate
must wait after not receiving a response from the CORC before he can commence
a section 1983 action. However, when an inmate has complied with all
administrative requirements and waited for the response period to expire, he has
30
has since denied his appeal.126 Thus, Peoples’ claim relating to his three-year
confinement in the SHU is deemed to be fully exhausted.127
F.
Personal Involvement
Peoples’ surviving Eighth Amendment claim must be dismissed as to
Fischer, Leclaire, Lee, O’Connor and Bellamy as their personal involvement in
unlawfully confining him to the SHU has not been adequately alleged. However,
Peoples’ claim against Ward , Bezio and Rock, remains as he has pled that these
defendants were personally involved.128
G.
Eleventh Amendment Immunity
Peoples’ claims against the Office of Counsel for DOCS are dismissed
because that Office is an arm of the State of New York, which has not waived its
exhausted all the administrative remedies that are avaliable to him. Peoples should
not be penalized for the CORC’s failure to timely respond, especially where the
eventual response denied the requested relief.
126
See 6/8/11 CORC Response, Ex. B to Pl. Opp., at 1.
127
See Canedy v. Liberty Mut. Ins. Co., 126 F.3d 100, 103 (2d Cir. 1997)
(holding that where facts are not contested by either party, the pleading may be
deemed amended).
128
As there is no indication that the Attorney General’s office represents
Drown, I decline to dismiss him from this action. Additionally, because Drown
was the officer who imposed the three-year SHU sentence, it is unlikely that he
would be dismissed at this stage of these proceedings.
31
sovereign immunity.129
H.
Qualified Immunity
To succeed on their claim for qualified immunity Ward, Bezio and
Rock must show that from the “face of the complaint they did not violate a clearly
established right of which they should have known.”130 By sentencing and
confining Peoples to the SHU for three years,131 Ward, Bezio and Rock violated a
clearly established right protecting inmates from cruel and unusual punishment.
Thus, these defendants are not entitled to the defense of qualified immunity.
I.
Leave to Amend
Because Peoples cannot cure his claims against Fischer, Leclaire, Lee,
O’Connor and Bellamy due to their lack of personal involvement, the claims
against these defendants are dismissed with prejudice and without leave to amend.
Furthermore, Peoples may not amend his Complaint as to the alleged Fourth
Amendment violations, his right to access to the courts claim, his claim regarding
his altercation with a fellow inmate, and his claims against the Office of Counsel
129
See Treasure Salvors, Inc., 458 U.S. at 684.
130
Percinthe, 2008 WL 4489777, at *3. Accord McKenna, 386 F.3d at
436 (internal citations omitted).
131
This is an extraordinary amount of time given the nature of the
charges filed against him.
32
for DOCS, as any such amendments would be futile.
Peoples may amend his Complaint in connection with his Fourteenth
Amendment due process claim. In order to do so, he must first waive his challenge
to the loss of good time credit. Peoples may amend this claim within thirty days of
the date of this Order. If Peoples submits a timely Amended Complaint, this Court
will review it to determine whether Peoples has adequately pled a Fourteenth
Amendment due process claim.
VI.
CONCLUSION
For the foregoing reasons, defendants' motion to dismiss is granted in
part and denied in part. 132 The Clerk of the Court is directed to close this motion
[Docket No. 33]. A status conference has been scheduled for June 12,2012, at
4:30 p.m. in Courtroom 15C.
SO ORDERED:
Dated:
New York, New York
May 2,2012
If Peoples wishes to purse the claims described in his February 13,
2012 letter to this Court, he should do so by commencing a new action.
132
33
- Appearances Plaintiff (Pro Se):
LeRoy Peoples
# 05-A-2620
Attica Correctional Facility
P.O. Box 149
Attica, NY 14011
For Defendants:
Jeb Harben
Assistant Attorney General
120 Broadway - 24th Floor
New York, NY 10271
(212) 416-6185
34
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