Garrett v. Ask-Carlson et al

Filing 28

MEMORANDUM AND ORDER: Mr. Garrett shall inform the Court within 30 days of the date of this order which option he chooses. It is not sufficient for him to say, as he does in his opposition to the defendants' motion to dismiss, that he will giv e up his right to challenge the loss of his good time credits as long as the Court does not dismiss his other claims. (Plaintiff's Reply to Defendants' Motion to Dismiss Complaint at 3) Any waiver of his rights must be unequivocal and unconditional. Once he has chosen, I will decide whether further briefing is needed. (Signed by Magistrate Judge James C. Francis on 9/18/2015) Copies Mailed By Chambers. (tn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -:
MICHAEL C. GARRETT,
:
:
Plaintiff,
:
:
- against :
:
WARDEN K. ASK-CARLSON, JOHN
:
DOE #1, General Counsel, JOHN
:
DOE #2, Administrative Coordinator :
Central Office, JOHN DOE #3,
:
Administrative Coordinator
:
Northeast Regional Office, D.H.D. :
JOHN M. BANKS, T. RODRIGUEZ,
:
S.I.S. Investigative Tech., and
:
REGIONAL DIRECTOR JOHN L. NORWOOD, :
:
Defendants.
:
- - - - - - - - - - - - - - - - - -:
JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE

15 Civ. 0723 (PAC) (JCF)
MEMORANDUM
AND ORDER

Plaintiff Michael C. Garrett alleges that his constitutional
rights were violated during a disciplinary proceeding at a federal
correctional facility -- the Metropolitan Detention Center in
Brooklyn -- when officials falsely reported that he had confessed
to using marijuana and refused to allow him to call a witness in
his defense.

(Complaint at 4).1

As a result of that disciplinary

proceeding, Mr. Garrett (1) lost forty-one days of good time credit
and (2) lost commissary and visitation privileges for more than a
year.

(Discipline Hearing Officer Report, attached as Exh. A to

Complaint, at 10-11).
the

privileges

(Complaint at 7).

Mr. Garrett wants the good time credit and

restored,

as

well

as

$250,000

in

damages.

The defendants have filed a motion to dismiss,

1

Citations of the complaint use the page numbers assigned by
the court’s Case Management/Electronic Case Filing system.
1

but, as I explain below, Mr. Garrett must make some choices about
how he wants to proceed before the Court can address his claims.
In Preiser v. Rodriguez, the Supreme Court held that some
claims -- those that object to the fact of imprisonment (such as by
challenging

a

criminal

conviction),

or

the

duration

of

that

imprisonment (such as by challenging a criminal sentence) -- must
be raised through a petition for a writ of habeas corpus.

Other

claims -- those that object to the conditions under which a
prisoner

is

confined

--

should

conventional civil rights action.

normally

be

brought

in

a

411 U.S. 475, 499-500 (1973).

Such an action is known as a Bivens action if it is brought against
federal government agents. Bivens v. Six Unknown Federal Narcotics
Agents, 403 U.S. 388 (1971).

Later, in Heck v. Humphrey, the

Supreme Court said that for a plaintiff to maintain an action for
money damages

charging

that

a

violation

of

his

civil

rights

resulted in a criminal conviction, the plaintiff must show that the
underlying

conviction

was

previously

otherwise sufficiently undermined.

overturned,

expunged,

or

512 U.S. 477, 486-87 (1994).

The Heck rule applies to prison disciplinary proceedings, so that
a prisoner generally cannot complain that a civil rights violation
resulted in discipline unless that disciplinary finding has already
been lifted or subverted in another way.

Edwards v. Balisok, 520

U.S. 641, 648 (1997).
Since Heck and Edwards, there have been a number of relevant
developments.

First, several courts have said that complaints

about civil rights violations resulting in restrictions on a
2

prisoner’s commissary or visitation privileges cannot be brought in
a petition for a writ of habeas corpus.

See, e.g., Homen v. Hasty,

229 F. Supp. 2d 290, 295 (S.D.N.Y. 2002).
“conditions

of

confinement”

claims

that

Those claims are

must

be

raised

in a

conventional civil rights action. Additionally, the Second Circuit
has held that if a prisoner challenges a disciplinary proceeding
that resulted both in loss of good time credits and in punishment
affecting his conditions of confinement (such as visitation or
commissary restrictions), a court may address the conditions of
confinement claims only if the prisoner unequivocally gives up his
right to challenge the loss of good time credits forever.
v. Vasquez, 467 F.3d 98, 100 (2d Cir. 2006).

Peralta

This is because if a

prisoner were to prevail on his conditions of confinement claim and
then

file

a

habeas

petition

challenging

the

length

of

his

confinement (such as by seeking restoration of good time credits),
he could try to prevent the prison authorities from defending those
sanctions by arguing that a court had already found that the
underlying proceeding was unconstitutional.
would

violate

Preiser,

Heck,

and

Id. at 105.

Edwards,

because

And that

his

claim

directed to the duration of confinement would have been effectively
decided in the prior civil rights action, rather than in a habeas
petition.

Id.

So, Mr. Garrett must decide whether he wishes to challenge (1)
his loss of good time credits in a habeas petition or (2) his
conditions of confinement in a Bivens action.
simultaneously.
3

He cannot do both

This decision will have other significant effects that Mr.
Garrett must consider.

The Second Circuit has held that a court

may not construe a Bivens action as a petition for a writ of habeas
corpus unless the plaintiff gives his informed consent to the
conversion of the action.

See, e.g., Simon v. United States, 359

F.3d 139, 141-45 (2d Cir. 2004).

This is because there are

restrictions on the number of habeas petitions a prisoner can bring
challenging

the

same

disciplinary

generally, the limit is one.

proceeding

or

conviction;

See 28 U.S.C. §§ 2244(a), 2255(h);

see also Brian R. Means, Federal Habeas Manual § 11:21.

So, if Mr.

Garrett chooses to proceed with this lawsuit as a habeas petition
attacking his loss of good time credits, he is likely giving up the
right to challenge the underlying disciplinary proceeding in the
future on another ground.

There may also be other collateral

effects.
Mr. Garrett should also understand that, if he chooses to
pursue a Bivens action, his remedies may be limited.

Among the

remedies Mr. Garrett seeks with regard to his visitation and
commissary

privileges

(Complaint at 7).

is

restoration

of

those

privileges.

This type of relief is called “equitable”

relief, to distinguish it from “legal” relief, such as money
damages.

The Second Circuit has held that only money damages are

available in a Bivens action, see Higazy v. Templeton, 505 F.3d
161, 169 (2d Cir. 2007), although an equitable remedy might be
available

if

the

action

were

construed

as

one

under

the

Administrative Procedures Act (“APA”), see Polanco v. U.S. Drug
4

Enforcement Administration, 158 F.3d 647, 650-52 (2d Cir. 1998)
(court should have construed complaint seeking only injunctive
relief as arising under APA, not as Bivens action); Berkun v.
Terrell, No. 12 CV 706, 2012 WL 3233897, at *3 (E.D.N.Y. Aug. 6,
2012) (stating injunctive relief available under APA where inmate
alleged warden of federal prison violated First Amendment by
refusing to allow inmate to receive jigsaw puzzle in mail).
In addition, if Mr. Garrett chooses to challenge only the
restrictions on his visitation and commissary privileges, there
might be restrictions on the kind of money damages Mr. Garrett
could be awarded.

In his complaint, he alleges that he suffered

only “mental and emotional pain.”

(Complaint at 4).

The Prison

Litigation Reform Act prohibits a prisoner’s claim for compensatory
damages for mental or emotional injury suffered while in custody
unless the prisoner has made “a prior showing of physical injury or
the commission of a sexual act.”

42 U.S.C. § 1997e(e).

Second

Circuit case law indicates that, in order to get compensatory
damages for a constitutional violation in the absence of physical
injury, Mr. Garrett would have to prove “actual” injury.
v. Carter, 284 F.3d 411, 417 (2d Cir. 2002).

Thompson

That is, Mr. Garrett

would have to show that the alleged constitutional violation caused
some monetary or other non-emotional injury.

See id. at 418-19

(allowing inmate to amend complaint to allege actual damages from
alleged seizure of property without due process of law).

A

prisoner who does not allege physical injury may still recover
nominal damages or punitive damages.
5

Id. at 418.

But nominal

damages

are

“mere

token

or

‘trifling’”

damages,

Cummings

v.

Connell, 402 F.3d 936, 943 (9th Cir. 2005), and punitive damages
are

difficult

to

prove

because

they

require

a

showing

that

officials acted with malicious intent, Carey v. Piphus, 435 U.S.
247, 256 n.11 (1978).
The defendants raise a minor procedural issue in connection
with the choice Mr. Garrett must make.

In a footnote, they state

that if Mr. Garrett wants the action to proceed as a habeas
petition, then he has not sued the correct person, because the
proper respondent would be the warden of the facility at which he
is currently held, rather than the warden of the facility at which
the disciplinary proceeding occurred.

(Defendants’ Memorandum of

Law in Support of Their Motion to Dismiss the Complaint at 8 n.4).
That is not a significant issue, however, because if Mr. Garrett
elects to convert his action into a habeas petition, the Court will
merely substitute the proper respondent for the improper one. See,
e.g., Page v. Walsh, No. 10 Civ. 5264, 2011 WL 134975, at *1 n.1
(S.D.N.Y. Jan. 7, 2011).
So, as I see it, Mr. Garrett has two choices:
(1) He can challenge the loss of good time credit by
converting this action into a habeas petition under 28
U.S.C. § 2241. Consequences: He will lose the right to
challenge the restriction of his commissary and
visitation privileges at this time; also, his ability to
bring a later habeas proceeding in connection with the
same disciplinary proceeding will be impeded.
-or(2) He can challenge the loss of visitation and
commissary privileges. Consequences: He will lose the
right to challenge the cancellation of his good time
credits. Mr. Garrett should also understand that even if
6

he were successful in this claim,
there might
constraints on the remedies available to him.

be

I express no opinion on whether either of these challenges would be
likely to succeed.
Mr. Garrett shall inform the Court within 30 days of the date
of this order which option he chooses.

It is not sufficient for

him to say, as he does in his opposition to the defendants' motion
to dismiss, that he will give up his right to challenge the loss of
his good time credits as long as the Court does not dismiss his
other claims.
Complaint at 3)
unconditional.

(Plaintiff's Reply to Defendants' Motion to Dismiss
Any waiver of his rights must be unequivocal and
Once he has chosen, I will decide whether further

briefing is needed.

SO ORDERED.

t. ~~~

~

'JJL-

AMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
Dated: New York, New York
September 18, 2015
Copies mailed this date to:
Michael C. Garrett
#58716-053

MCC New York-Metropolitan Correctional Center
150 Park Row, 7 South
New York, NY 10007
Jacob Lillywhite, Esq.
Assistant U.S. Attorney
86 Chambers St., 3rd Floor
New York, NY 10007
7