Hamilton v. Department of Corrections et al

Filing 33

MEMORANDUM OPINION & ORDER: The motion to dismiss is GRANTED with prejudice as to all of plaintiff's claims under the Eighth Amendment. The motion to dismiss is also GRANTED with prejudice as to plaintiffs claim under the Due Process Clause rela ting to his confinement in punitive segregation following his disciplinary proceeding. The motion to dismiss is GRANTED as to all of plaintiff's remaining claims for monetary damages. The motion to dismiss plaintiff's claims for injunctive relief from his continued confinement in ESH, and for access to religious services, is GRANTED without prejudice as to all defendants except Ponte, against whom the motion to dismiss these two claims for injunctive relief is DENIED. (Signed by Judge Katherine B. Forrest on 10/13/2016) Copies Sent By Chambers. (cla)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
KAREEM HAMILTON,
:
:
Plaintiff,
:
:
-v:
:
DEPUTY WARDEN; DEPUTY WARDEN OF :
SECURITY; JOSEPH PONTE; C.O. MILLER :
#8331; C.O. DAVIDSON #12593; CAPT.
:
MONROE; and CAPT. SAINT-FLEUR #106,
:
:
Defendants.
:
:
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:
:
KAREEM HAMILTON,
:
:
Plaintiff,
:
:
-v:
JOSEPH PONTE; DEPUTY WARDEN HAYES; :
DEPTY WARDEN KELLY; DEPUTY WARDEN:
:
DUNBAR; DEPUTY WARDEN PRESSLEY;
:
CHIEF CANTY; and ASSISTANT CHIEF
:
KENNETH STUKES,
:
:
Defendants.
:
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KATHERINE B. FORREST, District Judge:

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: October 13, 2016

15-cv-4031 (KBF)

MEMORANDUM
OPINION & ORDER

15-cv-9458 (KBF)

Plaintiff Kareem Hamilton, a prisoner on Rikers Island who is proceeding pro
se before this Court, filed these related cases in May and December of 2015. (4031
ECF No. 2 [Compl.]; 9458 ECF No. 2 [Compl.]1) Both cases allege that the

In this opinion, the notation “4031” refers to the docket of Hamilton’s first-filed case, 15-cv-4031,
and the notation “9458” refers the docket of the second case, 15-cv-9458. Where a document appears
on both dockets, only the 4031 notation will appear in this opinion.
1

1

conditions of Hamilton’s confinement violate his civil rights under federal law and
the United States Constitution. (Id.; 4031 ECF No. 9 [Am. Compl.]) In February
2016, the Court ruled that while the cases remain separate actions, defendants
would be permitted to file a single motion to dismiss both cases for failure to state a
claim. (4031 ECF No. 22.) That motion is now before the Court. (4031 ECF No.
23.)
For the reasons stated below, the motion to dismiss is GRANTED as to all
claims for money damages and to all claims under the Eighth Amendment. The
motion is also GRANTED as to all claims for injunctive relief against all named
defendants except for Commissioner Joseph Ponte. The motion is DENIED as to
the claims against Ponte for injunctive relief from violations of the Fourteenth
Amendment arising from plaintiff’s confinement in Enhanced Supervision Housing,
and violations of the First Amendment arising from denial of access to Muslim
religious services.
I.

BACKGROUND2
Hamilton is an inmate in the custody of the New York City Department of

Correction. (4031 Am. Compl. at 1.) As stated above, he has filed two law suits
with distinct overlapping theories of constitutional violations. The Court considers
both suits jointly in this opinion. The first suit primarily alleges that his rights
have been violated based on his designation to a particular housing unit. (Id. at 3A-

For purposes of this motion, the Court accepts all well-pled factual allegations in Hamilton’s
complaints as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
2

2

3B.) The second suit primarily alleges that the conditions of Hamilton’s
confinement within that unit violate his constitutional rights. (9458 Compl.)
On March 25, 2015, Corrections Officer Joseph Miller observed three inmates
assaulting a fourth inmate within the Anna M. Kross Center (“AMKC”), one of the
facilities on Rikers Island. (4031 2d Am. Compl at 3E.) A second Corrections
Officer, Christopher Davidson, arrived shortly thereafter and witnessed the fourth
inmate lying on the floor, but did not witness the assault itself. (Id. at 3F.) Both
Officers created dual incident reports date March 25, 2015 detailing what they had
seen and listing the inmates involved. (Id. at 3C-3F.) None of these documents
referenced Hamilton.
Officer Davidson also created a second document on March 25, 2015, titled
Report and Notice of Infraction. (Id. at 3G.) This document reported that Officer
Miller had informed Officer Davidson he had witnessed several inmates assault
another inmate. (Id.) The same victim was listed, but the number of perpetrators
rose from three to five. (Id.) One of the two additional inmates was Hamilton. (Id.)
This document charged Hamilton with three assault offense infractions. (Id.)
On March 26, 2015, Hamilton was scheduled to appear in court but was then
prevented from attending, apparently because he was told he had to obtain an
Injury Report from the prison’s medical provider. (Id. at 3A.) His complaint further
alleges that the Department of Correction instead told the court that Hamilton had
refused to appear. (Id.) Hamilton was placed in Pre-Hearing Detention Housing,
also referred to as Punitive Segregation Housing, in the Otis Bantum Correctional
Center (“OBCC”) pending a hearing on his assault charge. (Id. at 3J-3K.)
3

On March 31, 2015, Hamilton appeared at a hearing on his charged
infraction. (Id. at 3A.) He was informed that the investigation into the March 25
assault had been conducted by Officers Davidson and Miller, Captain Latonia
Monroe, Captain Johanne Saint Fleur, the Deputy Warden, and the Deputy Warden
of Security. (Id.) At the hearing, Hamilton learned that the infraction was being
dismissed. (Id.) The ensuing Hearing Report and Notice of Disciplinary Disposition
noted that Hamilton had not appeared on the initial incident reports and thus that
the infraction was not supported by any documentation. (Id. at 3H-3I.)
Following the dismissal of the charges against him, Hamilton remained in
Punitive Segregation Housing. (Id. at 3A.) He believed, and continues to assert,
that he should have been re-designated within 24 hours, but when he brought this
up with staff he was told that the Department of Corrections no longer handles
release dates from punitive segregation, and that such decisions were instead made
by Joseph Ponte and the staff in his office. (Id.) He received his disposition papers
from the hearing on April 6, 2015, rather than within 24 hours as he argues
regulations require. (Id.)
Around April 7, 2015, Hamilton was removed from Punitive Segregation
Housing and transported to the Brooklyn Detention Center. (Id.) Although
Hamilton alleges he is “not under Enhanced Restraint status,” he was placed in
Enhanced Restraints, which include security mitts, handcuffs, waist chains, and leg
irons, while being transported. (Id.) He was also forced to wear departmentalissued attire and footwear. (Id.) The following evening he was transported back to
OBCC, again subject to Enhanced Restraints. (Id.) He was placed in “regular
4

population low classification housing” at OBCC and informed that his brief stay at
the Brooklyn Detention Center had been a mistake, as his level four classification
was too low to be housed around the inmates housed there. (Id.)
Approximately ten days after the preceding events, on April 18, 2015, an area
Captain told Hamilton to pack his belongings because he was “signed up” for a
program called Enhanced Supervision Housing, or ESH. (Id.) Hamilton claims that
Enhanced Supervision Housing “is not a program at all,” but is instead “the new
punitive segregation for the worst inmates on Rikers Island.” (Id.) He claims to be
the only inmate in ESH with a level four security classification, while all the other
inmates have higher classifications. (Id. at 3A-3B.) He complained about his
assignment to “punitive segregation” to the Deputy Warden of Security, who
referred him to several other individuals until he was told that “Joseph Ponte along
with this staff office” deals with “punitive segregation,” so Hamilton “had no choice
but to wait.” (Id. at 5.)
Hamilton’s complaint further states that inmates are only supposed to be in
ESH for 45 days, but that despite having “completed all programs . . . which were
one of the ways to get out of here in 45 days,” he had been kept in this unit for ten
months as of February 2016. (Id. at 3B.)
The rest of Hamilton’s initial complaint, and the bulk of his second
complaint, relate to the conditions within ESH. He alleges that prisoners in ESH
are fully segregated from the regular prison population, made to wear waist chains
and handcuffs anytime they are escorted through the prison, and are prevented
from having any personal clothes. (Id.) He also alleges that ESH prisoners have
5

severely limited access to the law library, are prevented from having inmate rule
books establishing the rules, and that the only religious services provided to them
are Christian, while Hamilton is Muslim. (Id.) Hamilton also alleges that while
most prisoners on Rikers Island are only locked in their cells from 9:00 p.m. to 5:00
a.m. each day, in ESH the lock-in begins at noon and runs until after 5:00 a.m. (Id.)
On some occasions, prisoners in ESH, including Hamilton, have been locked-in for
twenty-five hours at a time without access to showers or any other opportunity to
leave their cells. (Id. & 9458 Compl. at Attachment 1.) In addition, there is no air
conditioning, and the temperature at times exceeds 90 degrees. (Id.)
As a result of his experiences in ESH, Hamilton reports that he has suffered
“many mental injuries” and is “always depressed.” (4031 Am. Compl. at 3B.) His
treatment in ESH has caused him “to become detach[ed] from others, recluse,
questioning [his] self worth, and at times, thoughts of ending [his] life.” (9458
Compl. at Attachment 1.)
In both of his complaints, Hamilton alleges that he filed a grievance but was
told that his complaints were “non grievable” by the “Grievance Coordinator.” (Id.
at 4, 4031 Am. Compl. at 4.) He provided further information about this process in
his opposition to defendants’ motion to dismiss. (4031 ECF No. 30. (“Opp.”)) In that
brief, Hamilton alleges that he “gave a Prison Official his grievance to deposit in the
grievance box.” (Id. at 3.) He alleges that he “did not receive a response,” and then
“made a written notice in accordance to Grievance policies for his grievance to be

6

forwarded to the next step, which was to a Mr. Harris of the CORC,” or Central
Office Review Committee.3 (Id.)
The complaint requests injunctive relief in the form of Hamilton’s removal
from ESH, and monetary damages in the amount of $1,000,000 to “make [Hamilton]
whole for mental injuries, stress, depression, loss of personal property, mentally
unstable environment, [and] emotional distress caused by actions of Department of
Corrections staff.” (4031 Am. Compl. at 5.) Hamilton seeks access to “religious
services . . . for me being Muslim,” (id. at 3B), “to which plaintiff is entitled to
pursuant to . . . the First Amendment of the United States Constitution.” (Opp. at
2.).
II.

LEGAL PRINCIPLES
Construed liberally, Hamilton alleges four sets of claims: (1) that his

confinement in punitive segregation more than a week after the dismissal of the
infraction complaint violates the Fourteenth Amendment’s Due Process Clause; (2)
that his assignment to and continued confinement in ESH for almost a year without
process also violates the Due Process Clause; (3) that the conditions of confinement
in ESH violate the Eighth Amendment; and (4) that the unavailability of Muslim
religious services in ESH violates the First Amendment.4 For the reasons that

Hamilton’s opposition to also includes, for the first time, an allegation that he was “physically
assaulted by Prison Officials E.S.U. (Emergency Services Unit).” (Opp. at 2.) Specifically, Hamilton
writes that he was “beaten with batons and sprayed with a chemical agent (MK-9) while in a
submissive stance (hands on top of head, and on his knees) showing no threatening posture.” (Id.)
These allegations are not cognizable when raised for the first time in an opposition to a motion to
dismiss.
4 Hamilton also alleges that his due process rights were violated by his placement in enhanced
restraints while being transported to and from the Brooklyn Detention Center, by his wearing a
“dirty orange jump suit” while “everyone else was wearing gray jumpsuits,” and by the high demand
placed on the prison legal resources. (4031 Am. Compl. at 3A.) These allegations have no legal
3

7

follow, plaintiff fails to plead a due process violation for his confinement to punitive
segregation for eight days following the disciplinary hearing, and he fails to plead
any claims under the Eighth Amendment. Plaintiff successfully pleads claims
under the Fourteenth and First Amendments related to his assignment to and
continued confinement in ESH, but he fails to adequately plead personal
involvement of any individual defendant sufficient to sustain a claim for money
damages under § 1983. Plaintiff’s sole surviving claims are for injunctive relief
against one defendant, Commissioner Ponte, arising from Hamilton’s well-plead
claims that his due process and First Amendment rights have been violated.
A.

Motion to Dismiss Standard

Under Rule 12(b)(6), a defendant may move to dismiss a complaint for
“failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
To survive a Rule 12(b)(6) motion, a plaintiff must provide grounds upon which his
claim rests through “factual allegations sufficient ‘to raise a right to relief above the
speculative level.’” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d
Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other
words, the complaint must allege “enough facts to state a claim to relief that is
plausible on its face.” Starr v. Sony BMG Music Entm’t, 592 F.3d 314, 321 (2d Cir.
2010) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable

merit. Shotgun application of the term “due process” to every aspect of confinement does not
transform basic features of prison life into constitutional claims.

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inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
In applying this standard, the Court accepts as true all well-pled factual
allegations, but does not credit “mere conclusory statements” or “[t]hreadbare
recitals of the elements of a cause of action.” Id. The Court will give “no effect to
legal conclusions couched as factual allegations.” Port Dock & Stone Corp. v.
Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir. 2007) (citing Twombly, 550 U.S. at
555). Knowledge and other conditions of a person’s mind may be alleged generally.
Fed. R. Civ. P. 9(b). A plaintiff may plead facts alleged upon information and belief
“where the facts are peculiarly within the possession and control of the defendant.”
Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010). But, if the Court
can infer no more than the mere possibility of misconduct from the factual
averments—in other words, if the well-pled allegations of the complaint have not
“nudged [plaintiff's] claims across the line from conceivable to plausible”—dismissal
is appropriate. Twombly, 550 U.S. at 570; Starr, 592 F.3d at 321 (quoting Iqbal,
556 U.S. at 679).
In deciding a 12(b)(6) motion, the Court may not consider evidence proffered
by any party, but is instead limited to the allegations in the complaint and facts
from documents either referenced therein or relied upon in framing the complaint.
See DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010).
It is also relevant that Hamilton is proceeding pro se in this matter. “It is
well established that the submissions of a pro se litigant must be construed liberally
and interpreted ‘to raise the strongest arguments that they suggest.’” Triestman v.
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Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (quoting Pabon v. Wright,
459 F.3d 241, 248 (2d Cir. 2006)) (emphasis in original). “Pro se submissions are
generally reviewed with ‘special solicitude,’ and we interpret them to raise the
strongest claims possible.” Kalican v. Dzurenda, 583 F. App’x 21, 22 (2d Cir. 2014)
(quoting Triestman, 470 F.3d at 475). Although a pro se complaint must state a
plausible claim for relief or it will be dismissed, Harris v. Mills, 572 F.3d 66, 72 (2d
Cir. 2009), “district courts should not dismiss a pro se complaint without granting
the plaintiff at least one opportunity to amend.” Shabazz v. Bezio, 511 F. App’x 28,
30 (2d Cir. 2013) (citing Branun v. Clark, 927 F.2d 698, 705 (2d Cir. 1991) (holding
that district courts should not dismiss pro se complaints “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”); see also J.S. v. T’Kach, 714 F.3d 99, 106
(“[W]ith respect to SHU detention, the district court should have sua sponte granted
[plaintiff] leave to replead [his due process claims] before sua sponte dismissing the
complaint.”).
B.

Prison Litigation Reform Act Requirements

Federal law imposes certain restrictions on suits by prisoners. First,
pursuant to 42 U.S.C. § 1997e(a), a prisoner may not bring a federal action “with
respect to prison conditions . . . until such administrative remedies as are available
are exhausted.” The Supreme Court has recently clarified that there are (at least)
“three kinds of circumstances in which an administrative remedy, although
officially on the books, is not capable of use to obtain relief,” and thus is not
“available” under § 1997e(a). Ross v. Blake, 136 S. Ct. 1850, 1859 (2016). An
10

administrative grievance remedy is not available where “it operates as a simple
dead end—with officers unable or consistently unwilling to provide any relief;”
where it is “so opaque that it becomes, practically speaking, incapable of use;” and
where “prison administrators thwart inmates from taking advantage of a grievance
process through machination, misrepresentation, or intimidation.” Id. at 1859-60.
The same federal statute discussed above also provides that a prisoner may
not bring a federal action “for mental or emotional injury suffered while in custody
without a prior showing of physical injury or the commission of a sexual act.” 42
U.S.C. § 1997e(e). The alleged physical injury must be more than de minimis.
Liner v. Goord, 196 F.3d 132, 135 (2d Cir. 1999). This provision does not, however,
require a prisoner to allege a physical injury before seeking injunctive relief,
declaratory relief, nominal damages, or punitive damages. Thompson v. Carter, 284
F.3d 411, 418 (2d Cir. 2002). In addition, § 1997e(e) does not bar a prisoner from
seeking compensatory damages for a loss of property. Id.
C.

Personal Involvement

To state a claim against individual defendants under 42 U.S.C. § 1983, “a
plaintiff must allege the violation of a right secured by the Constitution and laws of
the United States, and must show that the alleged deprivation was committed by a
person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
“Because vicarious liability is inapplicable to . . . section 1983 suits, a plaintiff must
plead that each Government-official defendant, through the official’s own individual
actions, has violated the Constitution.” Iqbal, 556 U.S. at 676.

11

When a § 1983 plaintiff seeks money damages, he or she must adequately
plead “personal involvement of defendants in [the] alleged constitutional
deprivations.” Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). A plaintiff may
plead personal involvement by a supervisory defendant by showing 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 indicating that unconstitutional acts were
occurring.
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).5
However, if a “complaint adequately allege[s]” a constitutional violation
against a prison official who “ha[s] overall responsibility to ensure” the
constitutional rights of inmates, the claim for injunctive relief can survive a motion
to dismiss. Koehl v. Dalsheim, 85 F.3d 86, 89 (2d Cir. 1996); see also Parkell v.
Danberg, __ F.3d __, 2016 WL 4375620, at *10 (3d Cir. Aug. 17, 2016) (“Our
conclusion that the State Defendants lacked personal involvement in past
constitutional violations does not preclude [plaintiff] from obtaining prospective
injunctive relief for ongoing violations.”); Davidson v. Scully, 148 F. Supp. 2d 249,

The continuing applicability of all five Conlon prongs after Iqbal has been called into question by
some district court decisions in this Circuit, and the Second Circuit has not definitively ruled on the
issue. See Doe v. New York, 97 F. Supp. 3d 5, 11-12 (S.D.N.Y. 2015) (discussing “confusion on the
issue” but observing that “the majority of courts [have] emphasiz[ed] that neither the Second Circuit
nor the Supreme Court has endorsed this reading of Iqbal” (internal quotation marks omitted)).
Because Hamilton does not show personal involvement under any of the Conlon factors, the Court
need not address whether any has been implicitly abrogated by Iqbal.
5

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254 (S.D.N.Y. 2001) (“Personal involvement of an official sued in his official capacity
is not necessary where the plaintiff is seeking only injunctive or declaratory relief
under 42 U.S.C. § 1983.”) (quoting Glass v. Coughlin, No. 91-cv-0193, 1991 WL
102619, at *2 (S.D.N.Y. May 29, 1991).
D.

Due Process

The Fourteenth Amendment protects inmates from placement in confinement
that “imposes atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life” without due process. Sandin v. Conner, 515 U.S.
472, 484 (1995). Determining whether an inmate has received procedural due
process involves a two-prong inquiry: “(1) whether the plaintiff had a protected
liberty interest in not being confined and, if so, (2) whether the deprivation of that
liberty interest occurred without due process of law.” Tellier v. Fields, 280 F.3d 69,
80 (2d Cir. 2000) (quoting Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997) (ellipsis
omitted)). Although “the Constitution itself does not give rise to a liberty interest in
avoiding transfer to more adverse conditions of confinement,” the Supreme Court
has held “that a liberty interest in avoiding particular conditions of confinement
may arise from state policies or regulations[.]” Wilkinson v. Austin, 545 U.S. 209,
221-22 (2005). The Second Circuit has also recognized that due process
requirements may be triggered when “defendants act[] in bad faith, labeling as
administrative a confinement that could only be justified as punitive,” Sealey, 116
F.3d at 52-53, and by “failure to conduct regular status reviews” of ongoing solitary
confinement, see Fludd v. Fischer, 568 F. App’x 70, 73 (2d Cir. 2014) (citing Hewitt
v. Helms, 459 U.S. 460, 472, 477 n.9 (1983)).
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1.

Liberty Interest.

“A liberty interest may arise from the Constitution itself . . . or . . . from an
expectation or interest created by state laws or policies.” McMahon v. Fischer, 446
F. App’x 354, 356 (2d Cir. 2011) (quoting Wilkinson, 545 U.S. at 221)). Whether an
inmate has a protected liberty interest in avoiding a particular kind of confinement
depends on both “the duration and conditions of confinement,” T’Kach, 714 at 106,
“since especially harsh conditions endured for a brief interval and somewhat harsh
conditions endured for a prolonged interval might both be atypical.” Palmer v.
Richards, 364 F.3d 60, 64 (2d Cir. 2004) (quoting Sealy, 197 F.3d at 586). “[A]
deprivation is not of sufficient gravity to support a claim of violation of the Due
Process Clause if similar deprivations are typically endured by other prisoners, not
as a penalty for misbehavior, but simply as the result of ordinary prison
administration.” Welch v. Bartlett, 196 F.3d 389, 394 (2d Cir. 1999).
“For the purpose of establishing a liberty interest, a district court should
consider the entire ‘sustained period of confinement.’” Fludd, 568 F. App’x at 72
(quoting Giano v. Selsky, 238 F.3d 223, 226 (2d Cir. 2001)). “[W]here the actual
period of disciplinary confinement is insignificant or the restrictions imposed
relatively minor, such confinement may not implicate a constitutionally protected
liberty interest.” Hanrahan v. Doling, 331 F.3d 93, 97 (2d Cir. 2003). But as
confinement extends over 100 days, a district court must conduct a more detailed
analysis of the conditions of confinement: “Where the plaintiff [is] confined for an
intermediate duration—between 101 and 305 days—‘development of a detailed

14

record’ of the conditions of the confinement relative to ordinary prison conditions is
required.” Palmer, 364 F.3d at 64-65 (quoting Colon, 215 F.3d at 232).
Although the Second Circuit has “consistently decline[d] to establish brightline rules in this area,” its decisions “have previously determined that, even under
‘normal’ conditions, solitary confinement for 305 days constitutes ‘a sufficient
departure from the ordinary incidents of prison life to require due process
protections.’” Fludd, 568 F. App’x at 72 (quoting Colon, 215 F.3d at 231). Moreover,
the Second Circuit has repeatedly “indicated the desirability of fact-finding before
determining whether a prisoner has a liberty interest in remaining free from
segregated confinement.” Sealey, 116 F.3d at 52; see also Davis v. Barrett, 576 F.3d
129, 135 (2d Cir. 2009) (“[T]his Court has required a ‘detailed factual record,’ unless
‘the period of time spend in SHU was exceedingly short—less than [] 30 days . . .—
and there [is] no indication that the plaintiff endured unusual SHU conditions.”
(quoting Palmer, 364 F.3d at 65-66)).
2.

Process Due

Once an inmate demonstrates a liberty interest in avoiding segregated
confinement, he or she must also show that assignment to such confinement
occurred without due process of law. The Supreme Court has long held that the
procedure due to inmates post-conviction is significantly less rigorous than that due
a pre-conviction criminal defendant, as “[p]rison disciplinary proceedings . . . take
place in a closed, tightly controlled environment peopled by those who have chosen
to violate the criminal law and who have been lawfully incarcerated for doing so.”
Wolff v. McDonnell, 418 U.S. 539, 561 (1974); see also Sandin, 515 U.S. at 482
15

(“[F]ederal courts ought to afford appropriate deference and flexibility to state
officials trying to manage a volatile environment.”). Even so, once a prisoner
establishes a due process liberty interest, “[t]he fundamental requirement of due
process is the opportunity to be hearing at a meaningful time and in a meaningful
manner.” Victory v. Pataki, 814 F.3d 47, 62 (2d Cir. 2016) (internal quotation
marks omitted).
There is a “distinction between the procedural protections an inmate must be
afforded when confined for ‘disciplinary’ reasons and those required when his
confinement is for ‘administrative’ purposes.” Wheeler-Whichard v. Roach, 468 F.
App’x 28, 30 (2d Cir. 2012). An inmate assigned to disciplinary confinement is
“entitled to advance written notice of the charges against him; a fair and impartial
hearing officer; and a written statement of the disposition, including the evidence
relied upon and the reasons for the disciplinary action taken.” Sira v. Morton, 380
F.3d 57, 69 (2d Cir. 2004). Assignment to administrative confinement, by contrast,
requires only “some notice of the charges against [the inmate] and an opportunity to
present his views to the prison official charged with deciding whether to transfer
him to administrative segregation.” Taylor v. Rodriguez, 238 F.3d 188, 192 (2d Cir.
2001) (quoting Hewitt v. Helms, 459 U.S. 460, 476 (1983)).
3.

New York City Board of Correction Regulations

A due process liberty interest in may arise “from an expectation or interest
created by state laws or policies.” McMahon, 446 F. App’x at 356. The authorizing
regulation for ESH provides both procedural and substantive predicates for prisoner

16

assignment to ESH. A determination that an inmate is eligible for ESH only upon a
finding that:
(1) the inmate has been identified as a leader of a gang and has
demonstrated active involvement in the organization or perpetration of
violent or dangerous gang-related activity; (2) the inmate has
demonstrated active involvement as an organizer or perpetrator of a
gang-related assault; (3) the inmate has committed a slashing or
stabbing, has committed repeated assaults, has seriously injured
another inmate, visitor, or employee, or has rioted or actively
participated in inmate disturbances . . . ; (4) the inmate has been
found in possession of a scalpel or a weapon that poses a level of
danger similar to or greater than that of a scalpel . . . ; (5) the inmate
has engaged in serious or persistent violence; or (6) the inmate . . . has
engaged in repeated activity or behavior of a gravity and degree of
danger similar to the acts described in paragraphs (1) through (5) of
this subdivision, and such activity or behavior has a direct, identifiable
and adverse impact on the safety and security of the facility, such as
repeated acts of arson . . . .
N.Y.C. Rules tit. 40, § 1-16(b) (2016). Procedurally, an inmate must be given
written notice within 24 hours of placement in ESH informing him or her, inter alia,
of the basis for the placement and the right to review evidence relied upon by the
Department of Correction. Id. § 1-16(f). An inmate is also entitled to an in-person
review hearing at which, inter alia, the inmate has a right to appear, present
evidence, call witnesses, and receive the assistance of a hearing facilitator. Id. § 116(g). The ESH regulation also provides for periodic review of the ESH placement
every 45 days “to determine whether the inmate continues to present a significant
threat” sufficient to justify continued assignment to ESH. Id. § 1-16(h)(1).

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E.

Conditions of Confinement

The Eighth and Fourteenth Amendments prohibit states from inflicting
“cruel and unusual punishments.” U.S. Const. Amend. VIII. “The Constitution
does not mandate comfortable prisons but neither does it permit inhumane ones,
and it is now settled that the treatment a prisoner receives in prison and the
conditions under which he is confined are subject to scrutiny under the Eighth
Amendment.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal citations and
quotation marks omitted).
“In order to state a claim that conditions of confinement violate the Eighth
Amendment, plaintiff must satisfy both an objective and subjective test: (1) the
deprivation denied him ‘the minimal civilized measures of life's necessities,’ and (2)
the defendants effectuated the deprivation with either a ‘sufficiently culpable state
of mind’ or with ‘deliberate indifference.’” Delgado v. Dembar, No. 13-cv-191, 2014
WL 4792068, at *4 (S.D.N.Y. Sept. 24, 2014) (quoting Jabbar v. Fischer, 683 F.3d
54, 57 (2d Cir.2012)). Under the objective test, prisoners “may not be deprived of
their ‘basic human needs—e.g., food, clothing, shelter, medical care, and reasonable
safety’—and they may not be exposed ‘to conditions that pose an unreasonable risk
of serious damage to [their] future health.” Jabbar, 683 F.3d at 57 (quoting Phelps
v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002)). Aggregated conditions of
confinement may “rise to the level of a constitutional violation, but ‘only when they
have a mutually enforcing effect that produces the deprivation of a single,
identifiable human need such as food, warmth, or exercise.’” Walker v. Schult, 717
F.3d 119, 125 (2d Cir. 2013) (quoting Wilson v. Seiter, 501 U.S. 294, 304 (1991)).
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Under the subjective test, “[t]he prison official must know of, and disregard,
an excessive risk to inmate health or safety. [A]n official’s failure to alleviate a
significant risk that he should have perceived but did not . . . [cannot] be condemned
as the infliction of punishment.” Jabbar, 683 F.3d at 57 (internal citations and
quotation marks omitted). Negligence is insufficient to show the subjective
component of an Eighth Amendment claim; at the very least, a plaintiff must
demonstrate that “a risk was ‘obvious or otherwise must have been known to a
defendant’ [to] be sufficient for a fact finder to conclude that the defendant was
actually aware of the risk.” Walker, 717 F.3d at 125 (quoting Brock v. Wright, 315
F.3d 158, 164 (2d Cir. 2003)).
F.

First Amendment

“Inmates clearly retain protections afforded by the First Amendment[.]”
O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987); see also Jackson v. Mann,
196 F.3d 316, 320 (2d Cir. 1999) (“An inmate is . . . entitled to a reasonable
accommodation of his religious beliefs.”). These protections have long been
understood to include freedom a right of access to religious services. Young v.
Coughlin, 866 F.2d 567, 570 (2d Cir. 1989) (“[W]e have long held that prisoners
should be afforded every reasonable opportunity to attend religious services,
whenever possible.”). It is “error to assume that prison officials [are] justified in
limiting [an inmate’s] free exercise rights simply because [the inmate is] in
disciplinary confinement,” id., as “it [is] well established that a prisoner’s free
exercise right to participate in religious services is not extinguished by his or her

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confinement in special housing or keeplock[.]” Ford v. McGinnis, 352 F.3d 582, 597
(2d Cir. 2003) (citing Sallahuddin v. Coughlin, 993 F.2d 306, 308 (2d Cir. 1993)).
Even so, “limitations on the exercise of [these] constitutional rights arise both
from the fact of incarceration and from valid penological objectives-including
deterrence of crime, rehabilitation of prisoners, and institutional security.” O’Lone,
482 U.S. at 348. To defeat the free exercise claim of an inmate who has been denied
access to religious services, prison officials must “proffer an explanation as to why
[the inmate] was denied access to religious services, or articulate a particular
penological interest that was served by denying [the inmate] such access.” Young,
866 F.2d at 570. “[I]t [is] incumbent upon prison officials to make such a showing in
order to prevail on a motion to dismiss.” Id.
III.

ANALYSIS
A.

Prison Litigation Reform Act Requirements

Defendants argue that this matter must be dismissed because Hamilton has
failed to comply with the requirements of the Prison Litigation Reform Act. They
argue that he has both failed to exhaust his available administrative remedies and
failed to allege an adequate physical injury before advancing theories of emotional
and mental suffering. At this motion to dismiss stage, the Court does not agree that
either of these grounds provide an appropriate basis for dismissal of Hamilton’s
claims.
As described above, Hamilton has advanced two seemingly distinct bases to
excuse his failure to grieve his claims before bringing them in federal court. In his
complaints, he alleges that he was told by a prison official that the issues he raised
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were non-grievable; in his opposition papers to the instant motion, he alleges that
did twice attempt to submit written grievances but never received a response. The
Court does note the apparent contradiction between these accounts. However, the
Court is required to construe Hamilton’s pro se complaint liberally and to draw all
inferences in favor of any plaintiff on a Rule 12(b)(6) motion to dismiss. In that
light, Hamilton’s complaint can be understood to allege that no administrative
remedies were in fact “available” to him because prison administrators thwarted his
attempts to make use of them. At the motion to dismiss stage, that allegation is
sufficient.
Similarly, at this early stage the Court will not dismiss Hamilton’s claims
based on the absence of an allegation of direct physical injury. Defendants are
correct that the complaint focuses on Hamilton’s alleged mental and emotional
suffering, both in its specific allegations and in its request for relief. However, one
of the complaints does reference “back pain,” (4031 Am. Compl. at 3), and Hamilton
seeks injunctive relief in the form of a court order reassigning him within the state
prison system, which does not depend on allegations of physical injury. Thompson,
284 F.3d at 418.
B.

Due Process Claims

Hamilton alleges claims relating to both his confinement in punitive
segregation and his assignment to and continued confinement in ESH for almost a
year. Only his claims relating to confinement in ESH can survive a motion to
dismiss.

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1.

Liberty Interest

Defendants argue that Hamilton cannot state a due process claim for his
confinement in punitive segregation for the eight days following his disciplinary
hearing because this confinement does not trigger a liberty interest. The Supreme
Court and the Second Circuit have held that solitary confinement for less than 30
days, unless extraordinarily harsh, will not trigger a liberty interest. See Sandin,
515 U.S. at 486; Palmer, 364 F.3d at 66. Hamilton does not make any allegations
that the conditions of his confinement in punitive segregation for eight days were so
extraordinarily harsh as to overcome this presumption. He therefore fails to plead a
liberty interest sufficient for this claim to survive the motion to dismiss.
Defendants also argue that Hamilton does not state a claim under the Due
Process Clause because the conditions of ESH described by the complaint are not as
harsh as those in solitary confinement, and therefore he cannot demonstrate a due
process liberty interest. This analysis is flawed in at least two ways. First, the
Second Circuit has made clear that the existence of a due process liberty interest
turns on both the length and the conditions of confinement. Segregated
confinement even for a short period can trigger a liberty interest if conditions are
sufficiently harsh and atypical as compared to routine prison life; conversely,
confinement in less harsh (but still atypical) conditions can trigger a liberty interest
if that confinement is sufficiently lengthy. Palmer, 364 F.3d at 64 (“[E]specially
harsh conditions endured for a brief interval and somewhat harsh conditions
endured for a prolonged interval might both be atypical.”).

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At least in the context of solitary confinement, the Second Circuit has held
that confinement for 305 days or more readily triggers a due process liberty
interest. Palmer, 364 F.3d at 64-65. As of the date he filed his opposition,
Hamilton had been confined in ESH for a few days short of a year. This is well
beyond the “intermediate” period of time of 101 to 305 days for which the Second
Circuit requires a detailed investigation into the conditions of confinement. Palmer,
364 F.3d at 65. Defendants fail to analyze the relevance of the lengthy duration of
Hamilton’s ESH confinement to the existence of a liberty interest under the
Fourteenth Amendment.
Second, defendants mistakenly compare the conditions in ESH to conditions
in solitary confinement only. This is not the correct test. The appropriate
comparison is between “the actual conditions of the challenged confinement
compared with ordinary prison conditions.” Brooks v. DiFasi, 112 F.3d 46, 49 (2d
Cir. 1997) (emphasis added); see also Davis, 576 F.3d at 135 (“A detailed factual
record containing information as to actual conditions in both [the challenged
confinement] and for the general population is necessary for the court to make the
type of comparison required.”). Hamilton, by contrast, does allege a comparison of
ESH to ordinary prison conditions. He alleges that while ESH is supposed to be “a
regular housing area,” conditions are harsher than regular housing because, inter
alia, “[e]very other day, we are locked in for a period of over TWENTY-FIVE (25)
HOURS,” (9458 Compl. Attachment 1), he is denied “regular feeding[] that [is]
provided to regular population,” and he is frequently denied recreation that he
would have access to in general population. (4031 Am. Compl. at 3B.)
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In light of Hamilton’s allegations of a lengthy duration of confinement in
ESH and significant differences from general population conditions, his claims
preclude dismissal at this time. The Court notes that as his available relief is solely
injunctive, if he is no longer in ESH, defendants are invited to submit a prompt
summary judgment motion.
2.

Process Due

Defendants argue that even if Hamilton’s complaint states “a due process
claim of some kind” (which the Court takes to mean “liberty interest”), he cannot
meet the second prong of a due process claim because he “does not allege that he
was deprived of any due process entitlements with respect to his placement in
Enhanced Supervision Housing or regarding any of the alleged conditions there.”
(ECF No. 10 at 12-13.)
Hamilton’s complaints allege three such deprivations. First, Hamilton states
that the only notice he received of his ESH assignment was being told by an area
captain “to pack up” because he “was signed up for a program which is not a
program at all called Enhanced Supervision Housing.” (4031 Am. Compl. at 3A.)
Construing his complaint liberally, this indicates that he did not receive the written
notice and opportunity for a review hearing provided for in the Board of Correction’s
ESH regulations, and it does not meet the basic due process requirement of “the
opportunity to be heard at a meaningful time and in a meaningful manner.”
Victory, 814 F.3d at 62.
Second, the complaint specifically references the 45-day review period
provided for the in ESH regulations, and Hamilton denies that he was provided
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sufficient regular status review despite his nearly year-long confinement. (4031
Am. Compl. at 3B) (stating that plaintiff has “completed all programs here [in ESH]
which were one of the ways to get out of here in 45 days because this is supposed to
be an 45 day program but yet I’ve been here Ten (10) months there is no way out of
this so called program”). Defendants do not address Hamilton’s claim that he has
suffered ten months of confinement in ESH without sufficient status review. This
alleged failure to provide periodic review states an additional claim for relief. See
Fludd, 568 F. App’x at 73 (reversing and remanding the dismissal of a prisoner’s
due process claims because “failure to conduct regular status reviews” of ongoing
solitary confinement implicates constitutional due process).
Third, Hamilton also alleges that he “was improperly disciplined by being
placed in punitive segregation and then an enhanced supervision housing unit when
the infraction against him was dismissed,” which makes out an additional due
process claim. (ECF No. 10 at 10.) The Second Circuit has recognized that due
process requirements may be triggered when “defendants act[] in bad faith, labeling
as administrative a confinement that could only be justified as punitive,” Sealey,
116 F.3d at 52-53. Hamilton claims that “[m]y status [in ESH] once again is all due
to an infraction that was dismissed[.]” (4031 Am. Compl. at 3A.) Defendants
acknowledge this allegation but do not explain why punishment in these
circumstances does not implicate due process. These allegations, which defendants
themselves adopt in their motion to dismiss, forms yet a third plausible
constitutional claim.

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Hamilton therefore meets the second prong of the test for a due process claim
because it appears he received no process relating to his assignment to ESH and did
not receive regular status review while confined to ESH. If Hamilton did receive
process before being assigned to ESH but was punished despite the dismissal of
allegations against him, this also implicates his constitutional rights.6 Accepting
the complaint’s factual allegations as true, which the Court must do at the motionto-dismiss stage, Hamilton states plausible claims that his initial assignment to
ESH and the failure of the Board of Correction to conduct regular review of his ESH
assignment violate the Due Process Clause.
The Court notes that the Second Circuit’s jurisprudence on due process
requirement for prison housing assignment has developed primarily in the context
of solitary and keeplock confinement, and that ESH is a relatively new form of
segregated housing that has not yet been thoroughly examined in this Circuit for its
Fourteenth Amendment implications. Regardless of what process might be due
before a transfer to ESH after a merits analysis, at the motion-to-dismiss stage
Hamilton has alleged sufficient facts to demonstrate a liberty interest that renders
his lack of process plausibly constitutionally deficient under the Fourteenth
Amendment’s Due Process Clause.
C.

Eighth Amendment Claims

Hamilton’s complains of a host conditions of confinement that the Court
construes to allege violations of the Eighth Amendment. However, the same

If Hamilton’s assignment to ESH was indeed punitive rather than administrative, that increases
the degree of process that was due to him before his assignment under the Second Circuit’s
jurisprudence. See Sira, 380 F.3d at 69.
6

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conditions and length of confinement that might give rise to a due process liberty
interest do not necessarily meet the significantly higher threshold for a plausible
Eighth Amendment claim.
Hamilton alleges he is permitted to shower only every other day, that he
faces a “security risk” because he is housed alongside high-classification inmates,
that he is denied recreation during lock-in for 24 hours at a time, that he suffers
“limited contact with family [and] children,” and that inmates in ESH suffer
“excessive and unjust beatings.” (9458 Compl. at Attachment 1.)
None of these allegations is sufficient to state an Eighth Amendment claim.
All but the last are common aspects of prison life that do not “result in the denial of
the minimal civilized measure of life’s necessities.” Farmer, 511 U.S. at 834
(internal quotation marks omitted). As to allegation of beatings, Hamilton does not
provide sufficient facts about alleged “excessive and unjust beatings” to plausibly
state a claim. Hamilton does not allege that he was beaten,7 and he does not offer
facts necessary to make out a claim that these alleged assaults widespread or
harmful enough to constitute a “substantial risk of serious harm.” Farmer, 511 U.S.
at 828. Therefore, Hamilton does not make out a plausible claim either that prison
officials used excessive force against ESH inmates, or failure to protect ESH
inmates from a risk of harm posed by others.
Even if Hamilton’s threadbare allegations could satisfy the objective prong of
the test for an Eighth Amendment violation, Hamilton fails to plead sufficient facts

In his opposition to the motion to dismiss, Hamilton adds an allegation that he was once “beaten
with batons and sprayed with a chemical agent (MK-9).” (Opp. at 2.) This allegation is not
cognizable when raised for the first time in an opposition memorandum.
7

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to support the subjective prong for any of his claims. “[A] prison official cannot be
found liable under the Eighth Amendment for denying an inmate humane
conditions of confinement unless the official knows of and disregards 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.” Farmer, 511 U.S. at 837. Hamilton fails to allege
any knowledge on the part of defendants—or any prison officials—about the
conditions of which he complains. His Eighth Amendment claims based on
conditions of confinement must be dismissed.
D.

First Amendment Claims

Plaintiff makes two straightforward allegations of denial of his
constitutionally protected religious liberty. First, he alleges that he has been
denied access to religious services in ESH entirely. Second, he alleges that
Christians are provided religious services in ESH while Muslims like Hamilton are
not. While these allegations are simple, so are the tests for free exercise claims
regarding access to religious services in prison. The Second Circuit has explained
that “it [is] incumbent upon prison officials to make . . . a showing” as to why the
inmate’s access to religious services cannot be reasonably accommodated “in order
to prevail on a motion to dismiss.” Young, 866 F.2d at 570. Defendants offer no
such showing. Hamilton has therefore pleaded facts sufficient to support his First
Amendment claims that he has been denied access to religious services.

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E.

Claims Against Individual Defendants

Although Hamilton has successfully pleaded violations of his constitutional
rights to due process and free exercise of religion, 42 U.S.C. § 1983 also requires a
plaintiff seeking money damages to plead a sufficient connection between the
plaintiff’s claims and the acts or omissions of the named defendants. Plaintiff has
not done so. Hamilton does not plead any facts showing that any of the named
defendants were involved in his assignment to ESH or his continued confinement
there, nor does he plead any facts to show that that any of the named defendants
were involved in denying him access to religious services. Although Hamilton
alleges he was told that defendant Ponte and his staff were responsible for decisions
about “punitive segregation,” this is insufficient to state a claim for money damages
under § 1983. Hamilton does not allege that he informed Ponte or Ponte’s staff of
his assignment to and continued confinement in ESH without process. Ponte was
thus “never put on actual or constructive notice of the violation.” Wright, 21 F.3d at
501. Nor does Hamilton allege that Ponte “created a policy or custom under which”
the assignment of inmates to ESH without process or sufficient periodic review of
the assignment occurs, or under which inmates in ESH are denied religious
services.8 See id. Without any factual allegations supporting a connection between
the acts or omissions of Ponte to the alleged constitutional violations, Hamilton’s
claims for money damages against Ponte must be dismissed.

Hamilton also does not plausibly allege the elements of a claim against a municipal entity under
Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), and does not name the Board of Correction as a
defendants in either of his complaints.
8

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Hamilton also seeks injunctive relief: to be released from ESH and reassigned
to general population, and access to Muslim religious services. Unlike claims for
monetary damages under § 1983, claims for injunctive relief do not require a
showing of personal involvement on the part of named defendants to survive a
motion to dismiss. Instead, a plaintiff who successfully pleads constitutional claims
against an official acting under color of law who “ha[s] overall responsibility to
ensure” the protection of prisoners’ rights can survive a motion to dismiss, at least
as to claims for injunctive relief. Koehl v. Dalsheim, 85 F.3d at 89. Hamilton does
not allege any such supervisory authority for the vast majority of named plaintiffs,
but he does allege that he was told that “Joseph Ponte along with his staff office
deals with” punitive segregation. (4031 2d Am. Compl. at 5.) Additionally, as
Commissioner of the Department of Correction, Ponte has supervisory
responsibility for conditions at Rikers Island, including ESH. Hamilton has
therefore alleged plausible claims for injunctive relief against Ponte in his official
supervisory capacity, but against no other defendant. Put simply, the only claims
that survive defendants’ motion to dismiss are due process and First Amendment
claims against Ponte in which plaintiff seeks release from ESH and access to
religious services.
IV.

CONCLUSION
The motion to dismiss is GRANTED with prejudice as to all of plaintiff’s

claims under the Eighth Amendment. The motion to dismiss is also GRANTED
with prejudice as to plaintiff’s claim under the Due Process Clause relating to his
confinement in punitive segregation following his disciplinary proceeding. The
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motion to dismiss is GRANTED as to all of plaintiff’s remaining claims for monetary
damages. The motion to dismiss plaintiff’s claims for injunctive relief from his
continued confinement in ESH, and for access to religious services, is GRANTED
without prejudice as to all defendants except Ponte, against whom the motion to
dismiss these two claims for injunctive relief is DENIED.

SO ORDERED.
Dated:

New York, New York
October 13, 2016
_________________________________
KATHERINE B. FORREST
United States District Judge

cc:
Kareem Hamilton
441-15-01732
Rikers Island-O.B.C.C.
16-00 Hazen Street
East Elmhurst, NY 11370

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