Patterson v. Aponte et al
Filing
71
REPORT AND RECOMMENDATION re: 56 MOTION to Dismiss the Third Amended Complaint filed by Maxolaine Mingo, Junior Lewis, Joseph Aponte, Timothy Johnson. For the reasons discussed above, I recommend that the defendants' motion be denied as to the plaintiff's February 20, 2017 excessive force claim against Captain Johnson and granted in all other respects. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, t he parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the Chambers of the Honorable Paul A. Engelmayer, Room 2201, 40 Foley Square, New York, New York 10007, and to the Chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review. (Objections to R&R due by 10/13/2017.) (Signed by Magistrate Judge James C. Francis on 9/29/2017) Copies Transmitted this Date By Chambers. (anc)
Mr. Patterson is detained at the AMKC.1 Id. at *1. He alleges
in all iterations of his complaint that he has been “denied visits,
counsel visits, law library, mail, packages, social service legal
aid, timely medication, recreation, phone, commissary, showers,
t.v.,
sick
call,
and
barbershop”
understaffing at the facility.
month without recreation.
He
also
alleges
that
because
Id.
of
lockdowns
and
He asserts that he went a
(7/3/17 Patterson Letter at 8, 10).2
his
mattress
is
unsuitable
correctional officers sexually assaulted him.
and
that
Patterson, 2017 WL
1194489, at *1.
In his second and third amended complaints, Mr. Patterson
alleges that on February 20, 2017, he was physically assaulted by
Captain Johnson and that on February 22, 2017, (1) his cane was
taken away, (2) he was threatened by Captain Johnson, and (3) he
was
“kicked
out”
of
the
medical
clinic.
([Second]
Amended
Complaint (“2d Amend. Compl.”) at 4; [Third] Amended Complaint
I previously treated Mr. Patterson as a pretrial detainee
because his detainee status was not clear from the parties’
submissions. He states in an opposition letter that he has been
sentenced (Letter of Trent Patterson dated July 3, 2017 (“7/3/17
Patterson Letter”), at 8 (because the letter is not properly
paginated, the page numbers I refer to are from the Court’s
Electronic Case Filing system)), but he does not clarify what his
status was at the time of the incidents. I will therefore continue
to treat him as a pretrial detainee for purposes of the defendants’
motion.
1
The plaintiff’s pages here appear to be out of order, as
the sentence from page eight continues on page ten, not page nine.
2
2
(“3d Amend. Compl.”) at 4-5).
He alleges that he has back, hip,
side, and leg pain due to the mattress and assaults.
Compl. at 5; 3d Amend. Compl. at 4).
letter
that
the
grievances.
alleged
assault
(2d Amend.
He states in an opposition
was
retaliation
(7/3/17 Patterson Letter at 3).
for
filing
He alleges that
Warden Mingo and Commissioner Ponte were notified of the incidents.
(7/3/17 Patterson Letter at 4).
Discussion
To survive a motion to dismiss under Rule 12(b)(6) of the
Federal
Rules
of
Civil
Procedure,
“a
complaint
must
contain
sufficient factual matter . . . to ‘state a claim to relief that
is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)).
dismiss
The court’s charge in ruling on a 12(b)(6) motion to
“is
merely
to
assess
the
legal
feasibility
of
the
complaint, not to assay the weight of the evidence which might be
offered in support thereof.”
GVA Market Neutral Master Ltd. v.
Veras Capital Partners Offshore Fund, Ltd., 580 F. Supp. 2d 321,
327 (S.D.N.Y. 2008) (quoting Eternity Global Master Fund Ltd. v.
Morgan Guaranty Trust Co. of New York, 375 F.3d 168, 176 (2d Cir.
2004)).
The court must construe the complaint in the light most
favorable to the plaintiff, “taking its factual allegations to be
true and drawing all reasonable inferences in the plaintiff’s
favor.”
Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009).
3
This standard applies equally to pro se plaintiffs, but their
pleadings are read more liberally and are construed as raising the
strongest claims implied.
See Triestman v. Federal Bureau of
Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam).
The court
may also consider “materials outside the complaint to the extent
that they are consistent with the allegations in the complaint.”
Martinez v. Aycock-West, 164 F. Supp. 3d 502, 508 (S.D.N.Y. 2016)
(quoting Alsaifullah v. Furco, No. 12 Civ. 2907, 2013 WL 3972514,
at *4 n.3 (S.D.N.Y. Aug. 2, 2013)).
To plead a claim properly under § 1983, a plaintiff must
allege that “(1) the challenged conduct was attributable at least
in part to a person who was acting under color of state law and
(2) the conduct deprived the plaintiff of a right guaranteed under
the Constitution of the United States.”
Snider v. Dylag, 188 F.3d
51, 53 (2d Cir. 1999); Thomas v. City of New York, No. 11 Civ.
578,
2012
WL
4889257,
at
*2
(S.D.N.Y.
Oct.
16,
2012).
The
defendants have moved to dismiss the second and third amended
complaints, arguing that the plaintiff has failed to state a claim
under § 1983 and that Warden Mingo and Commissioner Ponte were not
personally involved in the alleged conduct.
Discussion
A.
Liberty Interest Claim
Mr. Patterson alleges that lockdowns at the facility are
excessive, which can be construed as a claim of deprivation of a
4
liberty interest.
I previously recommended dismissing this claim
because the plaintiff failed to allege an intent to punish and did
not plead the claim with sufficient specificity.
WL 1194489, at *3.
those issues.
B.
Patterson, 2017
He has not alleged any new facts that cure
I therefore recommend dismissing this claim.
Access to the Courts and to Counsel
Mr. Patterson also alleges a Sixth Amendment claim for denial
of access to counsel as well as a First Amendment claim for denial
of access to the courts.
“[A] pretrial detainee’s Sixth Amendment rights are infringed
upon when prison regulations ‘unjustifiably obstruct’, ‘infringe’,
‘unreasonably burden’, or ‘significantly interfere[]’ with the
detainee’s access to counsel.”
LaRock v. Amato, No. 12 CV 503,
2013 WL 5466410, at *6 (N.D.N.Y. Sept. 30, 2013) (quoting Benjamin
v. Fraser, 264 F.3d 175, 187 (2d Cir. 2001)).
institutional
restriction
infringes
a
“[E]ven when an
specific
constitutional
guarantee . . . the practice must be evaluated in the light of the
central
objective
of
institutional security.”
(1979).
prison
administration,
safeguarding
Bell v. Wolfish, 441 U.S. 520, 547
Mr. Patterson’s allegations relating to access to counsel
(7/3/17 Patterson Letter at 6) are insufficient because they “fail
to indicate what counsel he was denied access to and for what
purpose the counsel was involved, when his requests were made and
how they were handled, or how the defendants’ proffered policy
5
obstructed, interfered, unreasonably burdened or infringed upon
his Sixth Amendment rights.”
LaRock, 2013 WL 5466410, at *6.
“To state a claim for denial of access to the courts, a
plaintiff must assert non-conclusory allegations demonstrating
that (1) the defendant acted deliberately and maliciously, and (2)
the plaintiff suffered an actual injury.”
Burroughs v. Petrone,
138 F. Supp. 3d 182, 210 (N.D.N.Y. 2015) (citing Lewis v. Casey,
518 U.S. 343, 353 (1996)).
To establish actual injury, the denial
must
plaintiff’s
have
hindered
the
nonfrivolous legal claim.
efforts
in
pursuing
a
Abreu v. Travers, No. 15 Civ. 540, 2016
WL 6127510, at *11 (S.D.N.Y. Oct. 20, 2016).
Furthermore,
the Supreme Court has stated that in order to allege a
denial of access to the courts claim, “the underlying
cause of action, whether anticipated or lost, is an
element that must be described in the complaint. . . .”
The Supreme Court instructed that the underlying claim
“must
be
described
well
enough
to
apply
the
‘nonfrivolous’ test and to show that the ‘arguable’
nature of the underlying claim is more than hope.”
Id. (citation omitted) (quoting Christopher v. Harbury, 536 U.S.
403, 415-16 (2002)).
Mr. Patterson asserts that the lockdowns
prevented him “from responding to a motion to dismiss by 6/26/17
in the Eastern District because [he] couldn’t get to the legal aid
or law library to research properly.”
6).
(7/3/17 Patterson Letter at
He also claims that he could not submit a “440.10, 20 for
[his] criminal case.”
(7/3/17 Patterson Letter at 6).
The
plaintiff fails to allege that the conduct was deliberate and
6
malicious
and
fails
to
meritorious legal claim.
adequately
describe
a
frustrated,
I therefore recommend dismissing this
claim.
C.
Communication, Conditions of Confinement, and Sexual
Assault Claims
The plaintiff’s claims relating to visitation, communication,
packages,
mail,
mattresses,
showers,
medication,
barbershop,
sick
call,
television,
and
sexual
previously denied without prejudice to amendment.
commissary,
assault
were
Patterson v.
Ponte, No. 16 Civ. 3156, 2017 WL 1405753, at *1-2 (S.D.N.Y. April
17, 2017).
Mr. Patterson has alleged no new facts relating to
those claims.
Therefore, I recommend denying them for the same
reasons discussed in my previous Report and Recommendation.
See
Patterson, 2017 WL 1194489, at *4-8.
Mr. Patterson’s claim for denial of recreation is now somewhat
more substantial.
He claims “[t]here is absolutely no recreation
allowed while these lockdowns occur whether it’s for one day or
one month.
This is especially dangerous for diabetics . . . .”
(7/3/17 Patterson Letter at 8, 10).
But this allegation is not
specific enough because it is impossible to determine how often
the denial occurred and for how long.
I therefore recommend
dismissing this claim.
D.
Religious Exercise and Retaliation Claims
Mr. Patterson, in his answering papers, appears to allege a
7
claim relating to religious exercise.
(7/3/17 Patterson Letter at
8 (“As a practicing Muslim I’m required to make ghusl and wudu
before
prayer.
unconstitutional.”)).
The
denial
of
showers
is
clearly
He also appears to allege a First Amendment
retaliation claim in his opposition letter.
(7/3/17 Patterson
Letter at 3 (“Captain Timothy Johnson assaulted plaintiff on
2/20/17 as a retaliatory act for the previous grievances, 311,
I.G., I.D. and lawsuits and complaints plaintiff filed against
him.”).
A court need not recognize claims raised for the first
time in opposition papers.
Vlad-Berindan v. MTA New York City
Transit, No. 14 Civ. 675, 2014 WL 6982929, at *6 (S.D.N.Y. Dec.
10, 2014).
E.
I therefore do not consider these allegations.
Excessive Force Claim
Mr. Patterson claims that
assaulted
by
Captain
excessive force claim.
on February 20, 2017, he was
Johnson,
which
can
be
construed
as
an
“[T]he right of pretrial detainees to be
free from excessive force amounting to punishment is protected by
the Due Process Clause of the Fourteenth Amendment.”
Perez v.
Ponte, 236 F. Supp. 3d 590, 620 (E.D.N.Y. 2017) (quoting United
States v. Walsh, 194 F.3d 37, 47 (2d Cir. 1999)).
Traditionally, pre-trial detainees seeking to assert an
excessive force claim had to satisfy both an objective
and subjective requirement. Generally, a plaintiff was
required to assert facts showing that a defendant had a
sufficiently
culpable
state
of
mind
(subjective
requirement) and that the deprivation being alleged was
8
sufficiently serious
requirement).
or
harmful
enough
(objective
Perez, 236 F. Supp. 3d at 620 (citation omitted).
“In order to
satisfy the objective element of the constitutional standard for
excessive force, the defendants’ conduct must be ‘inconsistent
with the contemporary standards of decency.’”
Pine v. Seally, No.
09 CV 1198, 2011 WL 856426, at *5 (N.D.N.Y. Feb. 4, 2011) (quoting
Whitley v. Albers, 475 U.S. 312, 327 (1986)).
It follows that
“[n]ot every push or shove, even if it may later seem unnecessary
in
the
peace
of
a
judge’s
constitutional rights.”
chambers,
violates
a
prisoner’s
Sims v. Artuz, 230 F.3d 14, 22 (2d Cir.
2000) (alteration in original) (quoting Johnson v. Glick, 481 F.2d
1028, 1033 (2d Cir. 1973)).
Likewise,
[t]he subjective component of the claim requires a
showing that the defendant “had the necessary level of
culpability,
shown
by
actions
characterized
by
‘wantonness’” in light of the particular circumstances
surrounding the challenged conduct.
In an excessiveforce case, “whether conduct was ‘wanton’ turns on
whether force was applied in a good-faith effort to
maintain or restore discipline, or maliciously and
sadistically to cause harm.”
Id. at 21 (citations omitted) (first quoting Blyden v. Mancusi,
186 F.3d 252, 262 (2d Cir. 1999), then quoting Hudson v. McMillian,
503 U.S. 1, 6 (1992)).
The Supreme Court has recently reevaluated this standard and
determined that a pre-trial detainee need not show “proof of intent
(or motive) to punish . . . to prevail on a claim that his due
9
process rights were violated.”
Kingsley v. Hendrickson, __ U.S.
__, __, 135 S. Ct. 2466, 2473 (2015).
can
prevail
by
providing
only
Rather, “a pretrial detainee
objective
evidence
that
the
challenged governmental action is not rationally related to a
legitimate governmental objective or that it is excessive in
relation to that purpose.”
Id. at __, 135 S. Ct. at 2473–74.
Accordingly, “the appropriate standard for a pretrial detainee’s
excessive force claim is solely an objective one.”
S. Ct. at 2473.
workable”
and
that
The Court reasoned that this standard “is
“use
of
an
objective
standard
protects an officer who acts in good faith.”
Ct. at 2474.
Id. at __, 135
adequately
Id. at __, 135 S.
However, the Court cautioned that
Officers facing disturbances “are often forced to make
split-second judgments—in circumstances that are tense,
uncertain, and rapidly evolving.” For these reasons, we
have stressed that a court must judge the reasonableness
of the force used from the perspective and with the
knowledge of the defendant officer.
We have also
explained that a court must take account of the
legitimate interests in managing a jail, acknowledging
as part of the objective reasonableness analysis that
deference to policies and practices needed to maintain
order and institutional security is appropriate.
Id. (citation omitted) (quoting Graham v. Connor, 490 U.S. 386,
397 (1984)).
In addition, Kingsley limited liability for claims
based upon excessive force to situations “in which the use of force
was the result of an intentional and knowing act (though we leave
open the possibility of including a ‘reckless’ act as well).”
10
Id.
Factors a court should consider include
the relationship between the need for the use of force
and the amount of force used; the extent of the
plaintiff’s injury; any effort made by the officer to
temper or to limit the amount of force; the severity of
the security problem at issue; the threat reasonably
perceived by the officer; and whether the plaintiff was
actively resisting.
Id. at __, 135 S. Ct. at 2473.
Mr. Patterson has satisfied this standard.
He states that he
was “assaulted by Captain Johnson” and “thrown to the floor,
kicked, spit on, and dragged.”
(3d Amend. Compl. at 4-5).
He
states that he suffered “excruciating” pain and now has back, hip,
and leg pain due, in part, to the incident.
5).
(2d Amend. Compl. at
He further asserts that the assault was “a retaliatory act
for the previous grievances . . . and lawsuits and complaints
plaintiff filed against [Captain Johnson].”
(7/3/17 Patterson
Letter at 3). The plaintiff has therefore alleged sufficient facts
to make out an excessive force claim against Captain Johnson
because he plausibly alleges that the use of force was entirely
gratuitous and severe and caused significant injury.
See Banks v.
County of Westchester, 168 F. Supp. 3d 682, 689-90 (S.D.N.Y. 2016).
However, the plaintiff does not make out an excessive force
claim against the other defendants.
He does not allege that they
were involved, and does not allege with sufficient specificity
that they were aware of the incident.
The plaintiff only alleges
that he “notified” Warden Mingo and Commissioner Ponte of the
11
behavior (7/3/17 Patterson Letter at 4); he fails to state how
these defendants were notified, how they would have been made aware
of the incident, or how they were personally involved.
In addition, the plaintiff does not make out an excessive
force
claim
for
the
February
22,
2017
incident
when
he
was
threatened and his cane was taken away, because the claim does not
rise
to
the
deprivation.
level
of
a
sufficiently
severe
constitutional
See Banks, 168 F. Supp. 3d at 691.
Conclusion
For
the
reasons
discussed
above,
I
recommend
that
the
defendants’ motion be denied as to the plaintiff’s February 20,
2017 excessive force claim against Captain Johnson and granted in
all other respects.
Pursuant to 28 U.S.C. § 636(b)(1) and Rules
72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the
parties shall have fourteen (14) days to file written objections
to this Report and Recommendation.
Such objections shall be filed
with the Clerk of the Court, with extra copies delivered to the
Chambers of the Honorable Paul A. Engelmayer, Room 2201, 40 Foley
Square, New York, New York 10007, and to the Chambers of the
undersigned, Room 1960, 500 Pearl Street, New York, New York 10007.
Failure to file timely objections will preclude appellate review.
12
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