Olutosin v. Lee et al
Filing
74
OPINION AND ORDER re: 69 MOTION to Dismiss Plaintiff's Amended Complaint. filed by Royce, T. Ketchin, W. Bresett, F. Bernstein, William Lee, S. Carlson, C. Gunsett, R. Ryan, J. Brothers, R. Koskowski, A. Coffin. For the foregoing reasons, Defendant's motion is GRANTED in part and DENIED in part. The Court dismisses the following claims: the deliberate indifference claim; the due process claim; the failure to intervene claim; the access to courts claim; and the supervisory liability claim. The remaining claims are as follows: the excessive force claim; and the retaliation claim. The Court dismisses Defendants Ketchin and Lee from the instant action, and the remaining Defendants are directed to file an answer to the excessive force and retaliation claims within 30 days hereof. The parties are directed to appear for an initial pre-trial conference on July 14, 2016 at 10:00 a.m. Defendants are directed to appear in person. Defendants' counsel shall make arrangements with the appropriate correctional facility for Plaintiff to appear via telephone conference. Parties are further directed to submit a completed case management plan. The Court respectfully directs the Clerk to terminate the motion at ECF No. 69. SO ORDERED. (Initial Conference set for 7/14/2016 at 10:00 AM before Judge Nelson Stephen Roman.) T. Ketchin and William Lee terminated. (Signed by Judge Nelson Stephen Roman on 5/16/2016) Copies Mailed By Chambers. (mml)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
AJAMU OLUTOSIN,
Plaintiff,
No. 14-cv-685 (NSR)
-against-
OPINION & ORDER
WILLIAM LEE, et al.,
Defendants.
NELSON S. ROMAN, United States District Judge
Plaintiff Ajamu Olutosin brings this action prose, pursuant to 42 U.S.C. § 1983, against
Defendants New York State Department of Corrections and Community Supervision
("DOCCS") employees Lee, Koskowski, Royce, Ketchin, Bresett, Gunsett, Brothers, Carlson,
Coffin, Bernstein, and Ryan (collectively, "Defendants") asserting claims for violations of his
rights under the First, Eighth, and Fourteenth Amendments and various state law claims. Before
the Comt is Defendants' motion to dismiss Plaintiffs amended complaint. (ECF No. 69.) For
the reasons set forth below, Defendants' motion is GRANTED in part and DENIED in part.
BACKGROUND'
On December 20, 2010, Plaintiff was transferred from Great Meadow Correctional
Facility ("Great Meadow") to Green Haven Correctional Facility ("Green Haven"). (Arn.
1
ii===.
The following facts are derived from Plaintiff's amended complaint (the "Amended Complaint," ECF No. 44), the
original complaint (the "Original Complaint," ECF No. 2), and the exhibits to the Original Complaint. Though an
amended complaint typically "supplant[s], rather than supplement[s]," a prior complaint, in the case of prose
plaintiffs, courts typically consider allegations in both an original and amended complaint. Lewis v. Weiss, No. 12cv-07242 (ALC), 2016 WL 1718251, at *3 (S.D.N. Y. Apr. 27, 2016) (citing Davila v. Lee, No. 11-cv-496 (LTS)
(FM), 2014 WL 7476207, at *I, n. I (S.D.N.Y. Dec. 30, 2014), report and recommendation adopted, 2015 WL
1573323 (S.D.N.Y. Apr. 9, 2015); Anthony v. Brockway, No. 15-cv-451, 2015 WL 3419536, at *I (N.D.N.Y. May
27, 2015)). This is to afford a prose plaintiff additional leeway in his or her pleadings. Additionally, the Amended
Complaint references exhibits attached to the Original Complaint, which evidences Plaintiff's intention that the
·.c;_-~n_!1e~!'.laint be considered together with the Original Complaint.
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Compl. ¶ 13.) On December 22, 2010, Plaintiff was called down to the draft room at Green
Haven to retrieve his property bags from Great Meadow. (Id. ¶ 14.) Plaintiff was informed by a
corrections officer (“C.O.”) that the property bag containing Plaintiff’s typewriter was not
included among the transferred property bags, while another C.O., whom Plaintiff could not
identify, told Plaintiff “that’s what happens to inmates who like filing lawsuits.” 2 (Id.) Plaintiff
was then escorted to the H-Block reception housing unit and later filed an inmate claim for his
missing typewriter. (Id.)
On December 28, 2010, Plaintiff was transferred from the H-Block to the G-Block and
placed in a double bunk cell with another inmate who smoked (Plaintiff does not smoke). (Id. ¶
15.) Plaintiff brought the issue to the attention of the G-Block supervising sergeant, who
informed Plaintiff that Senior Corrections Counselor Gonzales (who was named as a defendant
in the 2010 Lawsuit) and/or Defendant Koskowski was responsible for assigning double bunk
cell placements. (Id.)
On or around January 3, 2011, Plaintiff was moved to the E-Block, and was again
assigned to a double bunk cell with an inmate who smoked. (Id. ¶ 16.) Two days later, Plaintiff
was moved to a different double bunk cell. (Id.) Plaintiff complained to the E-Block C.O. about
being constantly moved between blocks and being unable to go to the commissary or the law
library. (Id.) Different blocks are assigned different law library days, and Plaintiff contends that
he was constantly moved for the express purpose of harassing Plaintiff and keeping him from
2
Plaintiff initiated a lawsuit against Senior Corrections Counselor Gonzalez, Corrections Counselor Daugherty, and
Superintendent Ercole of Green Haven on April 14, 2010 (the “2010 Lawsuit”). Olutosin v. Ercole, et al., No. 1:10cv-3143 (PGG). On March 21, 2011, Judge Paul G. Gardephe granted the defendants’ motion to dismiss with
respect to Plaintiff’s retaliation and due process claims and dismissed Plaintiff’s claim seeking an injunction on the
grounds that it was moot. (No. 1:10-cv-3143 (PGG) at ECF No. 19.)
2
accessing the law library. (Id.) Plaintiff was placed in the Special Housing Unit (“SHU”) on
January 5, 2011 when he refused to move to another double bunk cell. (Id.)
On January 7, 2011 Plaintiff filed a complaint with Defendant Lee, the superintendent of
Green Haven, about the above incidents. (Id. ¶ 17.) On January 13, Plaintiff received a response
from Defendant Lee, which informed Plaintiff that he should bring these issues to Defendant
Lee’s attention again should they persist after he was released from SHU. (Id.) Plaintiff also
received a monetary settlement to address the lost typewriter. (Id.) Plaintiff was released from
SHU on January 28, 2011, after which time he wrote a follow-up complaint to Defendant Lee.
(Id. ¶ 18.)
On February 2, 2011, Plaintiff was moved to the A-Block. (Id. ¶ 19.) Plaintiff arrived at
the A-Block with five property bags and placed them in the stairway. (Id.) Defendant Bresett
was behind the company’s control gate at the time and told Plaintiff “to hurry up moving his
property” into the cell. (Id.) Plaintiff moved his bags one at a time because they were heavy,
and Defendant Bresett “told [P]laintiff that he better move his property faster.” (Id.) Plaintiff
told Defendant Bresett “that he was moving them in as fast as he can.” (Id.) Defendant Bresett
then threatened Plaintiff—telling Plaintiff that he would “beat [P]laintiff up over there (A-Block)
[and] that they (A-Block C.O.’s) don’t go for any inmate back-lip over there.” (Id. ¶ 20.)
Plaintiff asked Defendant Bresett what his name was because “he wasn’t wearing his name tag,”
and Defendant Bresett “then stated that he will give [P]laintiff his name alright; [and] open[ed]
the control gate, came outside the said gate [and] started punching [P]laintiff in his face with his
fists.” (Id.) Plaintiff put his arms in front of his face to protect himself, and seconds later
Defendants Gunsett, Brothers, Carlson, Coffin, and Ketchin appeared on the scene. (Id.) Certain
of those Defendants grabbed Plaintiff’s arms and handcuffed Plaintiff’s hands behind his back,
3
beat Plaintiff, punched Plaintiff on the side of his face, and stomped on Plaintiff and kicked
Plaintiff. (Id.) One of the Defendants placed Plaintiff in a choke-hold and choked Plaintiff.
(Id.) While the officers beat up Plaintiff, Defendant Ketchin stood by watching. (Id.) When
Plaintiff was on the floor going in and out of consciousness, the Defendants lifted Plaintiff up
and dragged him to SHU. (Id.) Plaintiff was later taken to the infirmary in a wheelchair. (Id.)
A misbehavior report was filed against Plaintiff charging him with violating three of
Green Haven’s disciplinary rules: Rule 104.11 (violent conduct), Rule 100.11 (assault on staff),
and Rule 107.10 (interference with employee). (Id. ¶ 21.) Plaintiff filed a grievance, then refiled it after the office informed him it had not received his grievance. (Id. ¶ 22.)
Plaintiff sustained the following injuries: laceration to the top left side of his face, cut
under his upper lip, abrasion on left ear, abrasions on shoulders, bruises on right side of his upper
rib cage, bruises on upper and lower back area, and a detached retina in his left eye. (Id. ¶ 23.)
Plaintiff sustained the following permanent damage: a blind spot in the center of his left eye and
cataracts in the left eye. (Id.) While Plaintiff was in the Green Haven infirmary, he received no
medical care aside from having his injuries documented. (Id. ¶ 26.) The medical staff at Green
Haven determined that Plaintiff’s injuries were not serious and directed correctional staff to
escort Plaintiff back to his SHU cell. (Id.) Since February 2, 2011, Plaintiff has continued to
notify medical staff at Green Haven that he is still experiencing pain in his body and left eye.
(Id. ¶ 27.) Plaintiff has received no medical response and filed a grievance regarding his medical
care. (Id.) After Plaintiff filed the grievance, he underwent surgery on his left eye on March 17,
2011. (Id. ¶ 30.) The delay in medical attention caused permanent damage to Plaintiff’s
eyesight. (Id. ¶ 31.) Defendant Bernstein oversees Green Haven’s medical care and arranges
inmate visits to outside specialists. (Id. ¶ 29.)
4
Plaintiff further alleges that when he was placed in SHU after he was beaten up, he only
received 4 of his 5 property bags. (Id. ¶ 32.) This missing bag contained Plaintiff’s legal
materials, which prevented Plaintiff from pursuing an appeal in the 2010 Lawsuit. (Id.) Plaintiff
also states that he was prevented from accessing the law library. (Id. ¶ 35.)
Additionally, a month after the alleged beating, Plaintiff’s writ of habeas corpus on his
criminal case was denied, but Plaintiff only learned about the denial a year later while he was
housed in the Southport Correctional Facility. (Id. ¶ 33.) Green Haven had received the court’s
decision but failed to notify Plaintiff about the legal mail. (Id.) Allegedly, the court’s decision
contained Plaintiff’s alias name, William Riley (Plaintiff changed his name to Ajamu Olutosin in
1996). (Id. ¶ 36.) Defendant Ryan is the supervisor of Green Haven’s mail room staff. (Id. ¶
33.)
MOTION TO DISMISS STANDARDS
“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1)
when the district court lacks the statutory or constitutional power to adjudicate it.” Nike, Inc. v.
Already, LLC, 663 F.3d 89, 94 (2d Cir. 2011) (internal quotation omitted). “A plaintiff asserting
subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it
exists.” Morrison v. Nat'l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (quoting
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). In assessing whether there is
subject matter jurisdiction, the Court must accept as true all material facts alleged in the
complaint, Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir. 2009), but “the court may resolve
[any] disputed jurisdictional fact issues by referring to evidence outside of the pleadings, such as
affidavits . . . .” Zappia Middle E. Const. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d
Cir. 2000).
5
Under Rule 12(b)(6), the inquiry is whether the complaint “contain[s] sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678, (2009) (“Iqbal”) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)); accord Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). The Court, again,
must take all material factual allegations as true and draw reasonable inferences in the nonmoving party’s favor, but the Court is “ ‘not bound to accept as true a legal conclusion couched
as a factual allegation.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). “While
legal conclusions can provide the framework of a complaint, they must be supported by factual
allegations.” Id. at 679. When there are well-pleaded factual allegations in the complaint, “a
court should assume their veracity and then determine whether they plausibly give rise to an
entitlement to relief.” Id. A claim is facially plausible when the factual content pleaded allows a
court “to draw a reasonable inference that the defendant is liable for the misconduct alleged.” Id.
at 678.
“Pro se complaints are held to less stringent standards than those drafted by lawyers,
even following Twombly and Iqbal.” Thomas v. Westchester, No. 12–CV–6718 (CS), 2013 WL
3357171 (S.D.N.Y. July 3, 2013); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). The
court should read pro se complaints “to raise the strongest arguments that they suggest.” Pabon
v. Wright, 459 F.3d 241, 248 (2d Cir. 2006). Even so, “pro se plaintiffs . . . cannot withstand a
motion to dismiss unless their pleadings contain factual allegations sufficient to raise a right to
relief above the speculative level.” Jackson v. N.Y.S. Dep’t of Labor, 709 F. Supp. 2d 218, 224
(S.D.N.Y. 2010) (internal quotation marks omitted). Dismissal is justified where “the complaint
lacks an allegation regarding an element necessary to obtain relief,” and the “duty to liberally
construe a plaintiff's complaint [is not] the equivalent of a duty to re-write it.” Geldzahler v. N.Y.
6
Med. Coll., 663 F. Supp. 2d 379, 387 (S.D.N.Y. 2009) (internal citations and alterations
omitted).
DISCUSSION
I.
Collateral Estoppel
Defendants aver that Plaintiff’s excessive force, retaliation, failure to intervene, and due
process claims in this action are barred by the doctrine of collateral estoppel because Plaintiff
already unsuccessfully appealed the determination of the disciplinary hearing finding him guilty
of assault on Green Haven staff. The doctrine of collateral estoppel, or issue preclusion, “refers
to the effect of a judgment in foreclosing relitigation of a matter that has been litigated and
decided.” Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n. 1 (1984). “[I]nferior
federal courts have no subject matter jurisdiction over suits that seek direct review of judgments
of state courts, or that seek to resolve issues that are ‘inextricably intertwined’ with earlier state
court determinations.” Vargas v. City of New York, 377 F.3d 200, 205 (2d Cir. 2004). “Under
New York law, the doctrine of collateral estoppel, or issue preclusion, applies when a litigant in
a prior proceeding asserts an issue of fact or law in a subsequent proceeding and (1) the issue
‘has necessarily been decided in the prior action and is decisive of the present action,’ and (2)
there has been ‘a full and fair opportunity to contest the decision now said to be controlling.’”
Giakoumelos v. Coughlin, 88 F.3d 56, 59 (2d Cir. 1996) (quoting Schwartz v. Public
Administrator, 24 N.Y.2d 65, 71, 298 N.Y.S.2d 955, 246 N.E.2d 725 (1969); citing Colon v.
Coughlin, 58 F.3d 865, 869 (2d Cir. 1995)). 3 The burden of showing that the issues are identical
and necessarily were decided in the prior action rests with the party seeking to apply issue
3
New York law determines the preclusive effect of a prior judgment in an Article 78 proceeding. Giakoumelos, 88
F.3d at 59. See also Latino Officers Ass'n v. City of New York, 253 F. Supp. 2d 771, 783 (S.D.N.Y. 2003) (“[T]his
Court is obliged to give the same issue preclusive effect to the Article 78 proceedings as would be given by the
courts of New York.”).
7
preclusion while the burden of showing that the prior action did not afford a full and fair
opportunity to litigate the issues rests with the party opposing its application.” Latino Officers
Ass'n, 253 F. Supp. 2d at 783.
“As a general matter, ‘collateral estoppel effect will only be given to matters actually
litigated and determined in a prior action, because if an issue has not been litigated, there is no
identity of issues.’” Linden Airport Mgmt. Corp. v. New York City Econ. Dev. Corp., No. 08-cv3810 (RJS), 2011 WL 2226625, at *6 (S.D.N.Y. June 1, 2011) (quoting Evans v. Ottimo, 469
F.3d 278, 282 (2d Cir. 2006) (citing Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 456 (N.Y.
1985)). “However, ‘[i]t is not necessary that the issue have been “actually litigated” in the sense
that evidence have been offered on the point.” Linden Airport, 2011 WL 2226625, at *6
(quoting Schuh v. Druckman & Sinel, LLP, 602 F. Supp. 2d 454, 468 (S.D.N.Y. 2009)). “For a
question to have been actually litigated so as to satisfy the identity requirement, it must have
been properly raised by the pleadings or otherwise placed in issue and actually determined in the
prior proceeding.” Linden Airport, 2011 WL 2226625, at *6 (internal citations and quotations
omitted).
Plaintiff initiated an Article 78 proceeding to challenge the determination made at his
Tier III disciplinary hearing conducted between February 7 and February 25, 2011 at Green
Haven (the “Article 78 Proceeding”). (Defs.’ Ex. A, ECF No. 70-1, at 1.) At the disciplinary
hearing, Plaintiff was found guilty of violating Rule 100.11 (assault and fighting), Rule 104.11
(riot, disturbances and demonstrations), and Rule 107.10 (interference with an employee). (Id.)
That determination was affirmed on appeal. (Id. at 2.) In the Article 78 Proceeding, Plaintiff
asserted the following challenges to the disciplinary hearing’s findings: (1) noncompliance of the
misbehavior report; (2) denial of effective employee assistance; and (3) denial of a fair and
8
impartial hearing officer. (Id.) Consequently, the New York State Supreme Court’s review of
the disciplinary hearing’s determinations was confined to those topics. (Id. at 2–3.) In
particular, the New York State Supreme Court analyzed whether the misbehavior report was
prepared by an officer who had personal knowledge of the incident or ascertained the facts of the
incident; whether Plaintiff received effective assistance at his administrative hearing; and
whether the hearing officer was biased against Plaintiff. (Id.) On appeal, the Appellate Division,
Third Department, affirmed the Supreme Court’s dismissal of Plaintiff’s petition. (Defs.’ Ex. B,
ECF No. 70-2.)
In support of their collateral estoppel argument, Defendants seize upon language in the
Appellate Division’s opinion—“the evidence of [Plaintiff’s] guilt was overwhelming.” (Defs.’
Ex. B, ECF No. 70-2 at 2.) 4 From this, Defendants draw the conclusion that the Appellate
Division already determined certain issues and argue Plaintiff is collaterally estopped from
bringing certain claims in the instant action. However, a careful review of the Amended
Complaint and the decisions of the New York State Supreme Court and the Appellate Division
reveals that Plaintiff’s excessive force, retaliation, and failure to intervene claims asserted in this
action were not raised by Plaintiff in the Article 78 proceeding nor addressed by the state courts.
Plaintiff’s due process claim, however, is subject to collateral estoppel.
A. Excessive Force Claim
Defendants assert that collateral estoppel warrants dismissal of Plaintiff’s excessive force
claim because the Appellate Division “reviewed the facts surrounding the alleged assault and
concluded that the Defendants did not assault Plaintiff or use excessive force.” (Defs.’ Mot. at
6.) The Court disagrees. Though the Appellate Division decision includes a few sentences
4
Page numbers correspond to ECF pagination.
9
regarding the confrontation between Plaintiff and certain C.O.’s, the Court is not of the opinion
that a mere summary description of the events underlying Plaintiff’s misbehavior report
constitutes actual litigation of Plaintiff’s excessive force claim. Defendants have failed to carry
their burden of demonstrating that the state courts, in the Article 78 Proceeding, necessarily
grappled with Plaintiff’s allegation that he was beaten and repeatedly punched by several
officers. Moreover, the Appellate Division’s standard of review for examining the disciplinary
hearing’s determination—whether it “was affected by an error of law or was arbitrary and
capricious or an abuse of discretion”—is a highly deferential standard. N.Y. C.P.L.R. § 7803.
Accordingly, the Court rejects Defendants’ contention that Plaintiff is collaterally estopped from
asserting an excessive force claim in this action.
B. Retaliation Claim
With respect to Plaintiff’s retaliation claim, Defendants assert that “[t]he state court’s
attribution of guilt to Plaintiff necessarily precludes a finding that Defendants acted with any
intent to retaliate against Plaintiff for filing grievances.” (Defs.’ Mot. at 8.) This argument fares
no better than it did for Plaintiff’s excessive force claim. In Colon, the Second Circuit rejected
the argument that the plaintiff’s retaliation claim was raised in the Article 78 proceeding. 58
F.3d at 870. The court noted that the plaintiff’s Article 78 proceeding was “narrowly framed”
and saw “no reason to read the Appellate Division’s opinion as implicitly deciding an issue that
was not even presented to it.” Id. Similarly, here, Plaintiff’s retaliation claim was not the
subject of the Article 78 Proceeding, it was not presented to either state court, and it was not
determined by either state court. Therefore, collateral estoppel does not prevent Plaintiff from
raising his retaliation claim in the instant action.
10
C. Failure to Intervene Claim
Defendant’s collateral estoppel argument with respect to Plaintiff’s failure to intervene
claim is rejected for the same reasons discussed supra in Parts I.A and I.B.
D. Due Process Claim
Plaintiff’s due process claim pertains to his inability to obtain certain documents for his
disciplinary hearing and the alleged bias of the hearing officer. (Am. Compl. ¶ 43.) These
allegations are the very issues that were the subject of the Article 78 Proceeding and were
already considered and decided by the state courts in that proceeding. (See Defs.’ Ex. A, ECF
No. 70-1); see also Robinson v. Scully, No. 89-cv-7244 (RJW), 1993 WL 340998, at *5
(S.D.N.Y. Aug. 23, 1993) (“[I]t is clear that the overall issue raised in the complaint of whether
the hearing violated plaintiff’s right to due process of law was also raised in plaintiff’s Article 78
petition and adjudicated in that proceeding.”) Defendants have met their burden of
demonstrating (1) the identity of issues in the Article 78 Proceeding and Plaintiff’s due process
claim and (2) that the issues raised by Plaintiff’s due process claim were already decided in the
Article 78 Proceeding.
Plaintiff, on the other hand, has failed to demonstrate that he was not afforded a full and
fair opportunity to litigate those issues in the Article 78 Proceeding. See Giakoumelos, 88 F.3d
at 60. With respect to his challenge that he did not receive all requested documents for the
disciplinary hearing, the Supreme Court found that the hearing officer adjourned the hearing to
enable Plaintiff to obtain requested documents. (Defs.’ Ex. A, ECF No. 7-1 at 4.) As for the
redacted document, the Supreme Court determined that Plaintiff failed to demonstrate prejudice
in receiving a redacted version and noted that Plaintiff did not receive “ineffectual” assistance
merely because he was denied every document he requested. (Id.) On appeal, the Appellate
11
Division determined that any issue resulting from the document’s redaction was cured by
testimony from the correction sergeant identifying the injured officer’s work location. (Defs.’
Ex. B, ECF No. 70-2.) With respect to the alleged bias of the hearing officer, the Supreme Court
noted that such a claim was unsupported by the record and that the record in fact demonstrated
that the hearing officer reviewed all of Plaintiff’s arguments and explanations of the incident.
(Defs.’ Ex. A, ECF No. 70-1, at 4.) On appeal, the Appellate Division affirmed the Supreme
Court’s finding that there was no evidence of bias on the part of the hearing officer because he
was not involved in the investigation of the incident. (Defs.’ Ex. B, ECF No. 70-2.)
“This is the situation—the relitigation of claims already decided under constitutionally
adequate circumstances—that the Full Faith and Credit Statute seeks to avoid.” Giakoumelos, 88
F.3d at 61. As the Second Circuit has cautioned, “[c]ollateral estoppel in a subsequent § 1983
action is one of the risks attendant to” the decision to file an Article 78 petition seeking review of
an administrative determination. Id. The Court finds that Plaintiff is collaterally estopped from
bringing his due process claim in this action and grants Defendants’ motion to dismiss that claim.
II.
Exhaustion
Under the Prison Litigation Reform Act of 1995 (“PLRA”), “[n]o action shall be brought
with respect to prison conditions under section 1983 of this title ... by a prisoner confined in any
jail, prison, or other correctional facility until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). “The PLRA’s exhaustion 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.’” Giano v. Goord, 380 F.3d 670, 675
(2d Cir. 2004) (quoting Porter v. Nussle, 534 U.S. 516, 532 (2002)).
12
Exhausting all remedies “means using all steps that the agency holds out, and doing so
properly (so that the agency addresses the issues on the merits).” Washington v. Chaboty, No.
09-cv-9199 (PGG), 2015 WL 1439348, at *6 (S.D.N.Y. Mar. 30, 2015) (quoting Hernandez v.
Coffey, 582 F.3d 303, 305 (2d Cir. 2009)) (internal quotation marks and citations omitted).
“[B]ecause ‘it is the prison’s requirements, and not the PLRA, that define the boundaries of
proper exhaustion[,] . . . [t]he exhaustion inquiry . . . requires that [the court] look at the state
prison procedures and the prisoner’s grievance to determine whether the prisoner has complied
with those procedures.’” Espinal v. Goord, 558 F.3d 119, 124 (2d Cir. 2009) (quoting Jones v.
Bock, 549 U.S. 199, 218 (2007)). A plaintiff must invoke all available administrative
mechanisms, including appeals, “through the highest level for each claim.” Varela v. Demmon,
491 F. Supp. 2d 442, 447 (S.D.N.Y. 2007). See also Veloz v. New York, 339 F. Supp. 2d 505,
514 (S.D.N.Y. 2004). The Defendants bear the burden of demonstrating that Plaintiff's claim is
not exhausted. Key v. Toussaint, 660 F. Supp. 2d 518, 523 (S.D.N.Y. 2009). Where a prisoner
has failed to exhaust some, but not all, of the claims included in the complaint, the PLRA does
not require dismissal of the entire complaint. Tafari v. Hues, 539 F. Supp. 2d 694, 697
(S.D.N.Y. 2008) (citing Jones, 549 U.S. at 219–24). Instead, the court dismisses the
unexhausted claims and proceeds to adjudicate the exhausted claims. Jones, 549 U.S. at 224.
“[A] motion to dismiss pursuant to Rule 12(b)(6) for failure to exhaust should be granted
only if ‘nonexhaustion is clear from the face of the complaint.’” Lopez v. Cipolini, No. 14-cv2441 (KMK), 2015 WL 5732076, at *4 (S.D.N.Y. Sept. 30, 2015) (citing Lovick v. Schriro, No.
12–cv–7419, 2014 WL 3778184, at *4 (S.D.N.Y. July 25, 2014) (alterations and internal
quotation marks omitted)). See also Lee v. O'Harer, No. 13–cv–1022, 2014 WL 7343997, at *3
(N.D.N.Y. Dec. 23, 2014) (“Dismissal under Rule 12(b)(6) for failure to exhaust is appropriate if
13
such failure is evidenced on the face of the complaint and incorporated documents.”); Sloane v.
Mazzuca, No. 04–cv–8266, 2006 WL 3096031, at *4 (S.D.N.Y. Oct. 31, 2006) (“[B]y
characterizing non-exhaustion as an affirmative defense, the Second Circuit suggests that the
issue of exhaustion is generally not amenable to resolution by way of a motion to dismiss.”
(internal quotation marks omitted)).
Defendants argue that Plaintiff failed to exhaust (1) the retaliation claim against
Defendants Bresett, Gunsett, Brothers, Carlson, and Coffin and (2) the failure to intervene claim
against Defendant Ketchin. The Amended Complaint states that Plaintiff initially filed a
grievance in regard to his beating, the grievance office told Plaintiff it had not received the
grievance, and Plaintiff re-filed his grievance and exhausted it. (Am. Compl. ¶ 22) (citing
Exhibit G to Original Complaint). Additionally, the Amended Complaint states in conclusory
fashion that Plaintiff “exhausted his administrative remedies with respect to all claims [and] all
defendants.” (Am. Compl. ¶ 46.) The Court will examine whether Plaintiff properly exhausted
his retaliation and failure to intervene claims below.
A. Retaliation Claim
Defendants assert that Plaintiff failed to exhaust his retaliation claim because the
substance of his grievance contains no allegations of retaliation and the CORC’s response does
not suggest that retaliation was considered during the investigation of Plaintiff’s grievance.
(Defs.’ Mot. at 11.) The Second Circuit is clear that to exhaust a claim, “‘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.’” Johnson v. Testman, 380 F.3d 691, 697 (2d
Cir. 2004) (quoting Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002)). In the present case,
Plaintiff’s grievance states that during Plaintiff’s most recent incarceration at Green Haven, he
14
has experienced harassment from Green Haven staff following a civil lawsuit he initiated against
Green Haven regarding the prison’s double-cell practice—the 2010 Lawsuit. (Exhibit G, or ECF
No. 2-3 at 2.) Though Plaintiff’s grievance does not use the word retaliation, the language in the
grievance provided sufficient notice to Green Haven staff and CORC to enable it to investigate
claims that certain officers were taking action against Plaintiff because of the 2010 Lawsuit.
Accordingly, the Court rejects Defendants’ argument that Plaintiff failed to exhaust his
retaliation claim.
B. Failure to Intervene Claim
Plaintiff’s failure to intervene claim, however, does not fare as well as his retaliation
claim. Plaintiff’s grievance does not mention Defendant Ketchin, and, more fundamentally, the
grievance is devoid of any description regarding a bystander officer who witnessed the incident.
Nothing in Plaintiff’s grievance provided prison officials with information which would have
prompted their investigation of an officer uninvolved in the incident who nevertheless witnessed
the incident. Moreover, nothing in Plaintiff’s grievance would have triggered their investigation
of Defendant Ketchin. Accordingly, the Court finds that Plaintiff failed to exhaust his failure to
intervene claim and grants Defendants’ motion to dismiss that claim.
III.
Excessive Force Claim
“Under the Eighth Amendment, the use of excessive force against prisoners may
constitute ‘cruel and unusual punishment.’” Mitchell v. Keane, 974 F. Supp. 332, 340 (S.D.N.Y.
1997), aff’d, 175 F.3d 1008 (2d Cir. 1999) (quoting Hudson v. McMillian, 503 U.S. 1, 5 (1992)).
“The test of whether the use of force violates the Eighth Amendment is ‘whether the force was
applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically to
cause harm.’” Mitchell, 974 F. Supp. at 340 (quoting Hudson, 503 U.S. at 6–7). That test
15
“comprises both an objective and subjective component.” Romano v. Howarth, 998 F.2d 101,
105 (2d Cir. 1993) (citations omitted). “Objectively, the plaintiff must establish that the
deprivation alleged is sufficiently serious or harmful enough to reach constitutional dimensions.”
Id. (internal quotation and citation omitted). Courts examine the “type and extent of the force
used, the nature and seriousness of any injury that may have occurred, and other objective indicia
. . . .” Mitchell, 974 F. Supp. at 340. With respect to the subjective element, a plaintiff must
establish that the defendant acted “wantonly.” Romano, 998 F.2d at 105.
Here, Plaintiff’s allegations state a claim of excessive use of force against Defendants
Bresett, Gunsett, Brothers, Carlson, and Coffin. The Amended Complaint alleges that those
Defendants punched Plaintiff in the face, beat Plaintiff, stomped on and kicked Plaintiff, and
placed Plaintiff in a choke-hold. (Am. Compl. ¶ 20.) Construing the evidence in the light most
favorable to Plaintiff, the non-moving party, as the Court must do on a motion to dismiss, the
repeated beating of Plaintiff even after he was on the floor and outnumbered by many officers
“does not appear, on its face, to serve any useful function other than to inflict pain.” Mitchell,
974 F. Supp. at 340–41.
Defendants assert that this Court should dismiss Plaintiff’s excessive force claim because
it is belied by exhibits appended to the Original Complaint and further contradicted by Plaintiff’s
description of his injuries in the Amended Complaint. (Defs.’ Mot. at 6–8.) Defendants cite
Exhibits F, G, and H in support of their argument that the use of force against Plaintiff was
proportionate. (Def.’s Mot. at 6.) Exhibit F is the portion of the Use of Force Report detailing
the nature of the force used by Defendants Gunsett, Brothers, and Bresett (ECF No. 2-2 at 11);
Exhibit G contains the denial of Plaintiff’s grievance (ECF No. 2-3 at 3); and Exhibit H is the
portion of the Use of Force Report that discusses Plaintiff’s injuries (ECF No. 2-3 at 5).
16
Defendants assert that these exhibits conclusively demonstrate that any use of force was
“proportionate to the need to restrain a violent inmate who had already injured a correction
officer.” (Defs.’ Mot. at 6.) At best, these exhibits raise issues properly reserved for summary
judgment or a jury’s determination. Additionally, the Court is unpersuaded by Defendants’
argument that Plaintiff’s injuries are not serious enough to sustain an excessive force claim. As
the Supreme Court noted in Hudson, “[t]he absence of serious injury is . . . relevant to the Eighth
Amendment inquiry, but does not end it.” 503 U.S. at 7.
Evidence uncovered during discovery may ultimately prove that the force employed by
Defendants Bresett, Gunsett, Brothers, Carlson, and Coffin was done in a good faith effort to
maintain or restore discipline, but such a determination is best resolved on a motion for summary
judgment or at trial. Indeed, most of the cases cited by Defendants in their opposition brief
occurred in the summary judgment context. (See Defs.’ Mot. at 7.) In Landy v. Irizarry, the
court noted that “the fact intensive inquiry of whether a particular use of force was reasonable is
best left for a jury to decide.” 884 F. Supp. 788, 797 (S.D.N.Y. 1995) (collecting cases). Given
that the court in that case was only required to apply an objective standard to evaluate the
plaintiff’s excessive force claim, such reasoning is even more applicable in the instant situation
in which the Court must evaluate both an objective and subjective prong of Plaintiff’s excessive
force claim. Accordingly, the Court denies Defendants’ motion to dismiss Plaintiff’s excessive
force claim.
IV.
Deliberate Indifference Claim
To sustain a claim of deliberate indifference, a plaintiff must allege that (1) objectively,
the deprivation of adequate medical care was sufficiently serious, and (2) subjectively,
defendants acted with deliberate indifference. See Farmer v. Brennan, 511 U.S. 825, 834
17
(1994); Salahuddin v. Goord, 467 F.3d 263, 279–81 (2d Cir. 2006). “The objective component
requires that ‘the alleged deprivation must be sufficiently serious, in the sense that a condition of
urgency, one that may produce death, degeneration, or extreme pain exists.’” Hill v. Curcione,
657 F.3d 116, 122 (2d Cir. 2011) (quoting Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.
1996)) (internal quotation marks omitted). For the subjective prong, the official charged with
deliberate indifference must act with a “sufficiently culpable state of mind.” See Wilson v.
Seiter, 501 U.S. 294, 298 (1991). A prison official may only be found liable if “the official
knows of and disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837.
“Medical malpractice does not rise to the level of a constitutional violation unless the
malpractice involves culpable recklessness—‘an act or a failure to act by [a] prison doctor that
evinces a conscious disregard of a substantial risk of serious harm.’” Hill, 657 F.3d at 123
(quoting Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998)) (internal quotation marks
omitted). See also Hathaway, 99 F.3d at 553 (observing that “negligent malpractice do[es] not
state a claim of deliberate indifference”). “Because the Eighth Amendment is not a vehicle for
bringing medical malpractice claims, nor a substitute for state tort law, not every lapse in prison
medical care will rise to the level of a constitutional violation.” Smith v. Carpenter, 316 F.3d
178, 184 (2d Cir. 2003). Finally, “[b]ecause Section 1983 imposes liability only upon those who
actually cause a deprivation of rights, personal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of damages under § 1983.” Blyden v.
Mancusi, 186 F.3d 252, 264 (2d Cir. 1999) (citation and internal quotation marks omitted).
The Amended Complaint is devoid of any allegations regarding Defendant Bernstein’s
personal involvement in Plaintiff’s medical treatment. Plaintiff failed to plead sufficient facts
that Defendant Bernstein acted “with the requisite culpable mental state.” Hathaway, 37 F.3d at
18
66. “There are also no allegations that establish that [Defendant Bernstein] knowingly and
intentionally rendered improper treatment or that he knew of and disregarded a substantial risk of
serious harm” to Plaintiff. Joyner v. Greiner, 195 F. Supp. 2d 500, 504 (S.D.N.Y. 2002) (citing
Farmer, 511 U.S. at 837–38.) Nor has Plaintiff alleged that Defendant Bernstein “completely
withheld medical care” from Plaintiff. Joyner, 195 F. Supp. 2d at 504. The sole reference to
Defendant Bernstein in the Amended Complaint as the individual responsible for overseeing
Green Haven’s medical staff is insufficient to sustain a deliberate indifference claim. Therefore,
the Court dismisses Plaintiff’s deliberate indifference claim.
V.
Retaliation Claim
“[T]o sustain a First Amendment retaliation claim, a prisoner must demonstrate the
following: ‘(1) that the speech or conduct at issue was protected, (2) that the defendant took
adverse action against the plaintiff, and (3) that there was a causal connection between the
protected speech and the adverse action.’” Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004)
(quoting Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001), overruled on other grounds,
Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)). “As a general interpretive matter, ‘the
Second Circuit has admonished district courts to approach prisoner retaliation claims “with
skepticism and particular care,” because “virtually any adverse action taken against a prisoner by
a prison official—even those otherwise not rising to the level of a constitutional violation—can
be characterized as a constitutionally proscribed act.”’” Burton v. Lynch, 664 F. Supp. 2d 349,
366 (S.D.N.Y. 2009) (quoting Bumpus v. Canfield, 495 F. Supp. 2d 316, 325 (W.D.N.Y. 2007)
(quoting Dawes, 239 F.3d at 491). See also Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996)
(“Retaliation claims by prisoners are prone to abuse since prisoners can claim retaliation for
every decision they dislike.”) (internal quotation and citation omitted). Therefore, “[a] complaint
19
of retaliation that is ‘wholly conclusory’ can be dismissed on the pleadings alone.” Graham, 89
F.3d at 79 (quoting Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)).
A. Protected Speech or Conduct
Plaintiff easily meets the first prong of a retaliation claim because the 2010 Lawsuit
constitutes protected activity. See Espinal, 558 F.3d at 128–29 (“There is no dispute that [the
plaintiff’s] earlier federal lawsuit . . . was a protected activity.”) (citing Colon, 58 F.3d at 872).
B. Adverse Action
“Only retaliatory conduct that would deter a similarly situated individual of ordinary
firmness from exercising his or her constitutional rights constitutes an adverse action for a claim
of retaliation.” Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003) (internal quotation and citation
omitted). “Otherwise the retaliatory act is simply de minimis and therefore outside the ambit of
constitutional protection.” Id.
Plaintiff alleges that in retaliation for the 2010 Lawsuit (Am. Compl. ¶ 13), Defendants
(1) deliberately moved Plaintiff to different double-bunk cells every few days to prevent Plaintiff
from accessing the law library and making commissary purchases, (2) used excessive force
against him and beat him up, (3) denied Plaintiff medical treatment and care, 5 and (4) impeded
Plaintiff’s access to court. (Id. ¶¶ 38–41.) At this stage of the proceedings, prior to development
of the factual record, the Court finds these to be sufficiently adverse actions to state a claim for
retaliation. See Davis, 320 F.3d at 354 (“at this early state, these allegations must be construed
as describing an adverse action”) (internal quotations and citations omitted); Nelson v. McGrain,
No. 6:12-cv-6292 (MAT), 2015 WL 7571911, at *2 (W.D.N.Y. Nov. 24, 2015) (“At this stage of
5
Though the Court previously concluded that Plaintiff failed to state a claim for deliberate indifference because the
Amended Complaint is devoid of allegations that Defendant Bernstein was personally involved in Plaintiff’s
medical care, general allegations of denial of medical care are sufficient to allege an adverse action.
20
the proceeding, the Court concludes that the claimed retaliatory acts were not merely de minimis
acts of harassment, which is all that is required to reach a jury on the issue of whether the
retaliatory actions could deter a person of ordinary firmness from engaging in protected
conduct.”) (internal quotation and citation omitted); see also Guillory v. Haywood, No. 9:13-cv01564 (MAD), 2015 WL 268933, at *17 (N.D.N.Y. Jan. 21, 2015) (preventing inmate’s access
to law library when inmate has pending lawsuit constitutes an adverse action); Bowens v.
Pollock, No. 06-cv-0457A (SR), 2010 WL 5589350, at *11 (W.D.N.Y. Oct. 12, 2010), report
and recommendation adopted, No. 06-cv-0457A (SR), 2011 WL 146836 (W.D.N.Y. Jan. 18,
2011) (allegation that inmate was relocated to double-bunk cell is sufficient adverse action);
Rivera v. Goord, 119 F. Supp. 2d 327, 340 (S.D.N.Y. 2000) (physical assault held to be
sufficient adverse action); and Walker v. Schriro, No. 11-cv-9299 (JPO), 2013 WL 1234930, at
*9 (S.D.N.Y. Mar. 26, 2013) (“[d]enial of medical care that could address extreme pain surely
qualifies as an [adverse] action”) (internal quotation and citation omitted).
C. Causal Connection
Whether Plaintiff has sufficiently alleged a causal connection (the third prong) presents a
more difficult question for the Court. Defendants argue that the Court should dismiss Plaintiff’s
retaliation claim because the pleadings are devoid of any allegation that the Defendants knew
about the 2010 Lawsuit, and therefore Plaintiff cannot establish the third element of a prima
facie retaliation claim. (Defs.’ Mot. at 9, 19–20.) Though Plaintiff’s pleadings are devoid of any
direct allegation that any of the Defendants knew about the 2010 Lawsuit, 6 this Court finds
6
Paragraph 14 of the Amended Complaint states that “another C.O.” made a passing remark to Plaintiff that his
typewriter was missing because he filed a lawsuit. However, the Amended Complaint does not identify that
individual as any of the named Defendants, nor does the Amended Complaint allege that the unnamed C.O. took any
later adverse action against Plaintiff because of the 2010 Lawsuit.
21
Espinal instructive on the matter. See Barrington v. New York, 806 F. Supp. 2d 730, 747
(S.D.N.Y. 2011).
In Espinal, the Second Circuit noted that “[a] plaintiff can establish a causal connection
that suggests retaliation by showing that protected activity was close in time to the adverse
action.” 558 F.3d at 129 (citing Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273–74
(2001)). As there is no bright line that defines “the outer limits beyond which a temporal
relationship is too attenuated,” a court is free to “exercise its judgment about the permissible
inferences that can be drawn from temporal proximity in the context of particular cases.” Id.
(internal quotation and citations omitted). There, the Second Circuit determined that a six-month
lapse in time between when the plaintiff filed his federal lawsuit and the alleged retaliatory
beating by officers, including an officer named as a defendant in the previous suit, was
“sufficient to support an inference of a causal connection.” Id. Additionally, the court noted that
it was “a legitimate inference” that an officer involved in the alleged retaliatory conduct learned
of the earlier lawsuit from one of the officers involved in the prior lawsuit. Id. at 130.
In the present case, the alleged adverse actions all happened within a ten month time
period following the filing of the 2010 Lawsuit. Such a short lapse in time, and, particularly, the
fact that the adverse actions appeared to happen continuously over a period of time leading up to
the beating and inadequate medical care, supports the inference that the adverse actions were
taken in response to the 2010 Lawsuit. Additionally, Plaintiff alleges that Senior Corrections
Counselor Gonzales, who was named as a defendant in the 2010 Lawsuit, and/or Defendant
Koskowski was responsible for Plaintiff’s double-bunk cell placement. (Am. Compl. ¶ 15.) It is
a legitimate inference that Defendant Koskowski learned of the 2010 Lawsuit from Senior
Corrections Counselor Gonzales and retaliated against Plaintiff in response to the 2010 Lawsuit.
22
See Espinal, 558 F.3d at 130. Additionally, the Court may infer that the other Defendants
generally were aware of the 2010 Lawsuit. This is supported by Plaintiff’s allegation that an
unnamed officer made a remark to Plaintiff regarding Plaintiff’s earlier lawsuit. (Am. Compl. ¶
14.) The Court cannot conclude at this juncture that Defendants were unaware of the 2010
Lawsuit, though further discovery in this matter may reveal that certain Defendants had no
knowledge of the 2010 Lawsuit and thus retaliation claims cannot be maintained against them.
Accordingly, though the Court is wary of inmate retaliation claims, Plaintiff has alleged
sufficiently (1) protected activity, (2) adverse actions, and (3) causal connections to withstand
Defendants’ motion to dismiss.
VI.
State Law Claims
Plaintiff appears to assert pendent state law claims for assault, battery, and negligence.
(Am. Compl. at “Introduction”.) Defendants argue that those claims are barred by New York
Correction Law § 24 (Defs.’ Mot. at 16), which requires claims against DOCCS employees
“arising out of any act done or the failure to perform any act within the scope of the employment
and in the discharge of the duties” to be brought in the New York Court of Claims. N.Y.
Correct. Law § 24. In Baker v. Coughlin, the Second Circuit held that New York Corrections
Law § 24 bars a plaintiff from pursuing state law claims against state officers in their personal
capacities for actions arising out of their state employment. 77 F.3d 12, 16 (2d Cir. 1996)
(“Appellants are entitled to invoke the benefits of § 24 irrespective of the forum in which Baker
chooses to pursue her claims. Because a New York court would have dismissed Baker’s claims
against Appellants pursuant to § 24, the district court should have done so.”). In the present
case, because “the officers involved were endeavoring to do their job—perhaps poorly—at the
time of the [alleged actions],” § 24 applies and Plaintiff’s state law claims are dismissed. Ierardi
23
v. Sisco, 119 F.3d 183, 188 (2d Cir. 1997) (citing Baker, 77 F.3d at 14; Cepeda v. Coughlin, 128
A.D.2d 995, 995 (3d Dep’t 1987)).
VII.
Access to Courts Claim
“It is well established that all persons enjoy a constitutional right of access to the courts .
. . .” Monsky v. Moraghan, 127 F.3d 243, 246 (2d Cir. 1997). “The right of access to courts
extends beyond mere physical access to a courtroom and a judge. For instance, the right of
access may include affording prisoners who are preparing legal papers ‘adequate law libraries or
adequate assistance from persons trained in the law . . . .’” Id. (quoting Bounds v. Smith, 430
U.S. 817, 828 (1977)). “Interference with legal mail [also] implicates a prison inmate’s rights to
access to the courts and free speech as guaranteed by the First and Fourteenth Amendments to
the U.S. Constitution.” Davis, 320 F.3d at 351. However, “an isolated incident of mail
tampering is usually insufficient to establish a constitutional violation.” Id. (citations omitted).
“In order to establish a violation of a right of access to courts, a plaintiff must demonstrate that a
defendant caused actual injury, i.e., took or was responsible for actions that hindered a plaintiff’s
efforts to pursue a legal claim.” Monsky, 127 F.3d at 247 (internal citation and quotation
omitted).
Plaintiff alleges several grounds for his access to courts claim. First, Plaintiff alleges that
after returning from the Green Haven SHU, his property bag containing his legal mail went
missing, which resulted in Plaintiff being unable to file an appeal in the 2010 Lawsuit. (Am.
Compl. ¶ 32.) Second, Plaintiff alleges that he received a copy of the denial of his habeas
corpus petition in his criminal case one year after the decision was issued. (Id. ¶ 33.) He
explains that the Green Haven mail room staff sent the decision back to court because the
document contained a different name, even though Green Haven staff is aware that Plaintiff
24
previously went by the name of William Riley. (Id. ¶¶ 33, 36.) Third, Plaintiff alleges that he
received incorrect legal material from SHU staff in response to his requests. (Id. ¶ 35.) Fourth,
Plaintiff alleges that his cell movements hindered his access to the law library. (Id. ¶ 16.)
With respect to the first instance, Plaintiff alleges that the injury he sustained was his
inability to pursue an appeal of the 2010 Lawsuit. (Am. Compl. ¶ 32.) Judge Gardephe granted
the defendants’ motion to dismiss the 2010 lawsuit on March 21, 2011 (No. 1:10-cv-3143 (PGG)
at ECF No. 19), and the Amended Complaint states that Plaintiff received a copy of the opinion
granting the motion to dismiss the 2010 Lawsuit on March 26, 2011—just a few days later. (Id.)
Accordingly, Plaintiff lacks standing to assert a claim for denial of access to courts with respect
to the first instance because Plaintiff did not sustain an actual injury. See Bellezza v. Holland,
730 F. Supp. 2d 311, 315 (S.D.N.Y. 2010) (citing Amaker v. Goord, No. 98-cv-3634, 2002 WL
523371, at *11–12 (S.D.N.Y. Mar. 29, 2002); Amaker v. Haponik, No. 98-cv-2663, 2002 WL
523385, at *8 (S.D.N.Y. Mar. 29, 2002)).
The Court turns next to the second instance. In the case of an isolated incident of mail
tampering, such an incident or incidents “could constitute an actionable violation (1) if the
incidents suggested an ongoing practice of censorship unjustified by a substantial governmental
interest, or (2) if the tampering unjustifiably chilled the prisoner’s right of access to the courts or
impaired the legal representation received.” Bellezza, 730 F. Supp. 2d at 315 (internal quotation
and citation omitted). In the instant case, Plaintiff does not allege that there was an ongoing
practice at Green Haven relating to mail censorship, but Plaintiff does allege that his belated
receipt of the denial of his habeas petition caused him injury. (Am. Compl. ¶ 33.) However, the
March 7, 2011 order denying Plaintiff’s habeas petition states than an appeal from that order
“would not be taken in good faith” because Plaintiff failed to make a substantial showing of the
25
denial of a constitutional right. Riley v. Conway, No. 1:06-cv-01324 (DLI) (JO) at ECF No. 24.
Additionally, in the subsequent order denying Plaintiff’s motion for an extension of time to file a
notice of appeal to the Second Circuit, Judge Irizarry credited Plaintiff’s statement that he did not
receive a copy of the March 7, 2011 order until March 21, 2012 and credited Plaintiff’s
justifications for his belated receipt of the March 7, 2011 order. Id. at ECF No. 34.
Nevertheless, that court found that even if it adjusted the time for Plaintiff to file a notice of
appeal so as to begin the time period on March 21, 2012, Plaintiff still failed to timely file a
notice of appeal. Id. In light of Judge Irizarry’s determinations that an appeal from the denial of
the habeas petition would not be taken in good faith and that Plaintiff’s notice of appeal was
untimely (even if the time period to file the appeal did not commence until March 2012),
Plaintiff cannot demonstrate that his belated receipt of the denial of his habeas petition caused
actual injury.
With respect to the third and fourth instances, Plaintiff does not allege actual injury and
cannot sustain claims for a denial of access to courts based on these instances. See Jermosen v.
Coughlin, 877 F. Supp. 864, 871 (S.D.N.Y. 1995) (“A delay in being able to work on one’s legal
action . . . does not rise to the level of a constitutional violation.”) (citing Jones v. Smith, 784
F.2d 149, 151–52 (2d Cir. 1986)).
VIII. Supervisory Liability Claim
Plaintiff’s claim against Defendant Lee, the superintendent of Green Haven, is premised
generally upon his purported failure to properly address (1) Plaintiff’s letter complaints regarding
double cell placement, a missing property bag, and constant movement between cells and (2)
systemic excessive force problems at Green Haven. (Am. Compl. ¶¶ 17–18, 24, 49, 54.) To
successfully allege Section 1983 liability, a plaintiff must demonstrate “personal involvement”
26
and cannot merely rely upon an individual’s position of authority. Ayers v. Coughlin, 780 F.2d
205, 210 (2d Cir. 1985) (holding that liability “requires a showing of more than the linkage in the
prison chain of command”) (citing Williams v. Vincent, 508 F.2d 541, 546 (2d Cir. 1974);
Johnson v. Glick, 481 F.2d 1028, 1034 (2d Cir. 1973)). “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 indicating that unconstitutional acts were occurring.”
Colon, 58 F.3d at 873.
Following the Supreme Court’s decision in Iqbal, the viability of all of the Colon factors
has been called into question and remains unresolved in the Second Circuit. Some courts in this
Circuit have suggested that the viability of the Colon factors “depends on the underlying
constitutional claim.” Marom v. City of New York, No. 15-cv-2017 (PKC), 2016 WL 916424, at
*14 (S.D.N.Y. Mar. 7, 2016) (citing Sash v. United States, 674 F. Supp. 2d 531, 544 (S.D.N.Y.
2009) (“Where the constitutional claim does not require a showing of discriminatory intent, but
instead relies on the unreasonable conduct or deliberate indifference standards of the Fourth and
Eighth Amendments, the personal involvement analysis set forth in Colon v. Coughlin may still
apply.”); Delgado v. Bezio, No. 09-cv-6899 (LTS), 2011 WL 1842294, at *9 (S.D.N.Y. May 9,
2011) (holding that “where the claim does not require a showing of discriminatory intent, the
Colon analysis should still apply, insofar as it is consistent with the particular constitutional
27
provision alleged to have been violated”) (internal quotation marks omitted). Courts appear to
be in agreement that the third Colon factor remains viable regardless of the underlying
constitutional claim. Marom, 2016 WL 916424, at *14.
In this instant action, the surviving claims are for First Amendment retaliation and
excessive force. Interpreted liberally, the Amended Complaint appears to allege that Defendant
Lee was involved in those violations. While Plaintiff’s First Amendment retaliation claim
carries an intent requirement—which renders the second Colon factor inapplicable—the
excessive force claim has “no state-of-mind requirement,” and Marom seems to suggest that the
second Colon factor remains valid for that claim. 2016 WL 916424, at *15.
With respect to the second Colon factor, courts in this Circuit appear to be split over
whether a prison official’s receipt of a grievance letter from an inmate sufficiently establishes
personal involvement. See Mateo v. Fischer, 682 F. Supp. 2d 423, 430 (S.D.N.Y. 2010)
(“Courts in the Second Circuit are divided on whether a supervisor’s ‘review and denial of a
grievance constitutes personal involvement in the underlying alleged unconstitutional act.’”
(quoting Burton, 664 F. Supp. at 360); compare Rivera, 119 F. Supp. 2d at 344 (holding that
plaintiff’s assertions that he wrote to certain defendants regarding his medical condition and
those complaints were ignored “are insufficient to hold these [defendants] liable under § 1983”)
(collecting cases) and Warren v. Goord, 476 F. Supp. 2d 407, 413 (S.D.N.Y. 2007) (concluding
that denial of grievance letter does not establish personal involvement) with Hall v. Artuz, 954 F.
Supp. 90, 95 (S.D.N.Y. 1997) (holding that defendants’ awareness of deprivation of medical
care, vis-à-vis letters from plaintiff, sufficiently establishes personal involvement at the summary
judgment stage) and Eldridge v. Williams, No. 10-cv-0423 (LTS), 2013 WL 4005499, at *5
(S.D.N.Y. July 30, 2013) (“A defendant’s personal receipt of a complaint or letter and subjective
28
awareness of the alleged unconstitutional conditions may be one factor that helps establish
personal involvement.”).
Cases appear to suggest that “the determination of personal involvement based on a letter
of complaint to a supervisor . . . often depends upon the contents of the letter and whether the
supervisor referred the letter to a subordinate officer or whether the supervisory official
investigated and decided the issue him or herself.” Lloyd v. City of New York, 43 F. Supp. 3d
254, 267 (S.D.N.Y. 2014) (internal quotation and citation omitted). “Where a supervisory
official reviewed and responds to a prisoner’s letter of complaint, he/she is personally involved.
If the supervisor fails to respond to the letter or passes the letter on to a subordinate to handle, the
general rule is that the supervisor is not personally involved.” Id. (internal quotation and citation
omitted).
A. Excessive Force
For Plaintiff’s excessive force claim, the second and third Colon factors both appear to be
viable bases for alleging Defendant Lee’s personal involvement. With respect to the second
factor, though the Amended Complaint alleges that Defendant Lee personally responded to
Plaintiff’s complaint, the conduct complained of in Plaintiff’s grievance was the retaliatory
conduct—not excessive force. Accordingly, Plaintiff cannot establish Defendant Lee’s
personally involvement in the excessive force claim under the second Colon factor.
Additionally, Plaintiff’s allegations that Defendant Lee allowed the continuance of “the known
pattern of abuse of excessive use of force against inmates” is entirely conclusory and fails to
sufficiently allege personal involvement under the third Colon factor. (Am. Compl. ¶ 49.)
29
B. First Amendment Retaliation
Because Plaintiff cannot allege personal involvement under the second Colon factor for a
First Amendment retaliation claim, and because the allegations that go towards the third factor
are entirely conclusory, the Court dismisses the retaliation claim against Defendant Lee.
IX.
Qualified Immunity
Defendants assert they are entitled to qualified immunity on all of Plaintiff’s claims.
(Defs.’ Mot. at 22.) “Qualified immunity is an affirmative defense, and an affirmative defense is
normally asserted in an answer.” McKenna v. Wright, 386 F.3d 432, 435 (2d Cir. 2004)
(citations omitted). “Although, ‘usually, the defense of qualified immunity cannot support the
grant of a Rule 12(b)(6) motion for failure to state a claim upon which relief can be granted,’ a
district court may grant a Rule 12(b)(6) motion on the ground of qualified immunity if ‘the facts
supporting the defense appear on the face of the complaint.’” Hyman v. Abrams, 630 F. App’x
40, 42 (2d Cir. 2015) (quoting McKenna, 386 F.3d at 435–36 (citing Green v. Maraio, 722 F.2d
1013, 1018 (2d Cir.1983)). “[W]hen determining a motion to dismiss on qualified immunity
grounds in advance of full merits discovery, the plaintiff’s version of the facts is presumed to be
true . . . .” Dolson v. Vill. of Washingtonville, 382 F. Supp. 2d 598, 601 (S.D.N.Y. 2005).
The applicability of qualified immunity is governed by a two-step inquiry. “First, the
court must determine whether, taking the facts in the light most favorable to the party asserting
the injury, a constitutional infraction was committed.” Id. (citation omitted). “If the answer to
that question is yes, the court must decide whether a reasonable official in defendant’s position
(as that position is described by plaintiff) ought to have known that he was violating plaintiff’s
constitutional rights by doing what plaintiff alleges he did.” Id. “A defendant's assertion that the
30
plaintiff's constitutional rights were not violated, or that her version of events is wrong, does not
go to the question of whether the officer was entitled to qualified immunity.” Id.
The issue for this Court is whether Defendants are entitled to qualified immunity on the
two remaining claims—First Amendment retaliation and excessive force. The rights to be free
from retaliation and excessive force were both clearly established at the time of the events
underlying the instant action. See Collins v. Goord, 438 F. Supp. 2d 399, 421 (S.D.N.Y. 2006)
(discussing clearly established right to be free from retaliation) and Rodriguez v. McGinnis, 1 F.
Supp. 2d 244, 249 (S.D.N.Y. 1998) (discussing clearly established right to be free from
excessive force). Additionally, though Defendants attempt to introduce their own version of
events surrounding the alleged beating, at this stage of the proceedings, Defendants do not—and
cannot—assert that “it would have been objectively reasonable to believe that the conduct
alleged by [P]laintiff was permissible.” Rodriguez, 1 F. Supp. 2d at 249. At this stage in the
proceedings, the Court is required to accept Plaintiff’s allegations as true and draw all reasonable
inferences in his favor. Accordingly, it was not objectively reasonable for Defendants to (1)
prevent Plaintiff from accessing the law library, double-bunk Plaintiff, and deny Plaintiff access
to medical care in retaliation for the 2010 Lawsuit and (2) repeatedly beat Plaintiff. Therefore,
Defendants are not entitled to qualified immunity on the remaining claims at this juncture.
31
CONCLUSION
For the foregoing reasons, Defendant's motion is GRANTED in part and DENIED in
part. The Court dismisses the following claims:
•
the deliberate indifference claim;
•
the due process claim;
•
the failure to intervene claim;
•
the access to courts claim; and
•
the supervisory liability claim.
The remaining claims are as follows:
•
the excessive force claim; and
•
the retaliation claim.
The Court dismisses Defendants Ketchin and Lee from the instant action, and the remaining
Defendants are directed to file an answer to the excessive force and retaliation claims within 30
days hereof. The parties are directed to appear for an initial pre-trial conference on July 14, 2016
at 10:00 a.m. Defendants are directed to appear in person. Defendants' counsel shall make
arrangements with the appropriate correctional facility for Plaintiff to appear via telephone
conference. Patties are fmther directed to submit a completed case management plan. The
Court respectfully directs the Clerk to terminate the motion at ECF No. 69.
Dated:
May I(.,, 2016
White Plains, New York
SO ORDERED:
N~
United States District Judge
32
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