Smith v. New York State Department of Correctional Services et al

Filing 138

OPINION & ORDER re: 134 MOTION to Dismiss . filed by Holloran, Robert Cunningham, Chalk. For the foregoing reasons, the Court GRANTS Defendants' motion to dismiss (ECF No 134) and DISMISSES Plaintiff's Second Amende d Complaint in its entirety without leave to replead. The Clerk of Court is respectfully directed to terminate the motion at ECF No. 134, to enter judgment accordingly, and to close the case. The Clerk of the Court is also directed to mail a copy of this order to pro se Plaintiff at his address on the docket. (Signed by Judge Nelson Stephen Roman on 11/30/2022) (ate) Transmission to Orders and Judgments Clerk for processing.

Case 7:15-cv-03455-NSR Document 138 Filed 11/30/22 Page 1 of 11

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
WILLIAM D. SMITH,

11/30/2022
Plaintiff,

-against-

15-cv-3455 (NSR)

NEW YORK STATE DEPARTMENT OF
CORRECTIONAL SERVICES,
SUPERINTENDENT ROBERT CUNNINGHAM,
LT. HOLLORAN, SORC - MR. NICHOLAS
CHALK, HEARING OFFICER WOODBOURN
CORRECTIONAL FACILITY,

OPINION & ORDER

Defendants.
NELSON S. ROMÁN, United States District Judge
Plaintiff William D. Smith (“Plaintiff”), proceeding pro se, commenced this action on April
23, 2015 (See Compl., ECF No. 2) against the New York State Department of Correctional
Services, 1 Superintendent Robert Cunningham, Lieutenant Holloran, and SORC Nicholas Chalk.
Plaintiff raised claims under 42 U.S.C. § 1983 that sound in deliberate indifference, cruel and
unusual punishment, infliction of emotional pain and denial of procedural due process in violation
of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. (See
Second Amended Complaint (“SAC”), ECF No. 59.)
On May 21, 2018, the Court issued an Order denying Plaintiff’s partial motion for summary
judgment and granting Defendant’s cross-motion for summary judgment, therefore dismissing

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This Court dismissed Defendant New York State Department of Correctional Services in an Order of Service
dated August 6, 2015. (ECF No. 9.), and again on May 21, 2018 in its Order and Opinion on a partial summary
judgment, pursuant to the Eleventh Amendment’s immunity bar. See Smith v. New York State Dep't of Corr. Servs.,
No. 15-CV-3455 (NSR), 2018 WL 2305566, at *1, n.1 (S.D.N.Y. May 21, 2018).

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Plaintiff’s Fourteenth Amendment claim and state law claims to the extent they were raised. See
Smith v. New York State Dep’t of Corr. Servs., No. 15-CV-3455 (NSR), 2018 WL 2305566, at *1
(S.D.N.Y. May 21, 2018).
Now before the Court is Defendants’ motion to dismiss the remaining claims in the SAC
for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). For the following reasons, the
motion is GRANTED, and Plaintiff’s claims are dismissed with prejudice.
BACKGROUND
The Court assumes familiarity with the facts of this case based on the Court’s May 21,
2018 Order on the partial motion for summary judgment. See Smith, 2018 WL 2305566.
In summary, Plaintiff was incarcerated at the Woodbourne Correctional Facility
(“Woodbourne”) in Woodbourne, New York. While at Woodbourne, Plaintiff worked as a porter
in the B-1 Company (“B-1”). Id. at *1. On February 4, 2013, Defendant Lieutenant Holloran
approached Plaintiff and advised him that he would no longer be able to work as the B-1 porter
and that he would be reassigned. Id. The next day, Plaintiff spoke to Corrections Officer
Carpenter, who told Plaintiff that he should continue working as the B-1 porter. Id. On February
7, 2013, Defendant Holloran found out that despite his order, Plaintiff reported to B-1, and he
thereafter wrote a misbehavior report accusing Plaintiff of disobeying his direct order and being
out of place. Id. at *2. Plaintiff was placed in keeplock confinement pending his disciplinary
hearing. Id.
Plaintiff received a Tier III disciplinary hearing on February 12 and 13, 2013, which was
held before Defendant Chalk, a hearing officer at Woodbourne. Id. In anticipation of the hearing,
Sergeant Cohn had interviewed four potential witnesses at Plaintiff’s request. Id. At the hearing,
Defendant called three witnesses, including Corrections Officer Carpenter, took their testimony,

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and also allowed Plaintiff to question them through Defendant Chalk. Id. Plaintiff also testified
on his own behalf. Sergeant Holloran also testified as to the order he gave to Plaintiff. Id.
Defendant Chalk found Plaintiff guilty of all charges and imposed a sentence of 65 days in
the Special Housing Unit (“SHU”). Id. at *3. Plaintiff was advised that he could appeal his Tier
III conviction to the commissioner. Id. On February 15, 2013, Plaintiff applied for discretionary
review to Defendant Superintendent Robert Cunningham, who declined to conduct such review.
Id. In declining to conduct a discretionary review of the conviction, Defendant Cunningham told
Plaintiff that he could appeal the Tier III hearing decision directly to the “Central Office.” Id.
Plaintiff eventually appealed his conviction to the Central Office. Id. On April 2, 2013, Albert
Prack, on behalf of the commissioner, reversed and expunged the conviction, noting that the
“circumstances surrounding incident raise questions as to inmate's culpability.” Id.
On May 21, 2018, the Court issued an Order denying Plaintiff’s partial motion for summary
judgment and granting Defendant’s cross-motion for summary judgment, which dismissed
Plaintiff’s Fourteenth Amendment claims as well as state law claims to the extent they were raised.
Id. at *1, 7. Plaintiff’s Fourteenth Amendment claims were based on his claim that he was denied
procedural due process during his Tier III disciplinary hearing, resulting in his 65-days
confinement in the SHU. Id. at *4. The Court disagreed, finding that Plaintiff failed to establish
that a liberty interest was implicated by his 65-day SHU confinement, see id. at *4, and that
Plaintiff failed to demonstrate an issue of material fact concerning deficiencies in the process
afforded to him during the Tier III disciplinary hearing. Id. at *5. Plaintiff argued that he was not
afforded sufficient process because Defendant Chalk did not allow him to present a fellow inmate,
Phillip Smith, as a fourth witness. Id. at 5–6. The Court found that there was no material fact
concerning the reasonable opportunity afforded to Plaintiff to call his witnesses. Id. at * 6. The

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record showed that at no point during the hearing did Plaintiff suggest or mention the testimony
of his fourth witness—in other words, “Plaintiff never requested the presence of [the fourth
witness] at any point during the hearing, and a failure to request a witness amounts to a waiver of
such testimony.” Id. Plaintiff appealed the decision, which was denied by the Second Circuit on
November 7, 2018 for lack of jurisdiction, given that a final order had not been issued. (See ECF
No. 111.) The case was stayed from October 12, 2018 to July 20, 2021. (See ECF Nos. 110 and
122.)
On January 18, 2022, Defendants were granted leave to file the instant motion to dismiss,
which seeks to dismiss the remainder of the claims in the SAC. The motion was fully briefed as
of April 5, 2022. Plaintiff did not submit opposition papers, and therefore, the motion is considered
unopposed. (See ECF No. 137.)
LEGAL STANDARD
I.

Fed. R. Civ. P. 12(b)(6)
In deciding a motion to dismiss under Rule 12(b)(6), the Court must accept all factual

allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor.
Freidus v. Barclays Bank PLC, 734 F.3d 132, 137 (2d Cir. 2013). To survive a motion to dismiss,
a complaint must contain “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) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). Mere “labels and conclusions” or “formulaic recitation[s]
of the elements of a cause of action will not do”; rather, the complaint's “[f]actual allegations must
be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. In
applying these principles, the Court may consider facts alleged in the complaint and documents

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attached to it or incorporated by reference. Chambers v. Time Warner, Inc., 282 F.3d 147, 152–
53 (2d Cir. 2002) (internal quotation marks and citation omitted).
Pro se complaints are to be liberally construed. Estelle v. Gamble, 429 U.S. 97, 106 (1976).
They must be held to less stringent standards than complaints written by lawyers, and only
dismissed when the plaintiff can prove “no set of facts in support of his claim which would entitle
him to relief.” Estelle, 429 U.S at 106 (quoting Conley v. Gibson, 335 U.S. 41, 45–46 (1957)).
This “is particularly so when the pro se plaintiff alleges that [his] civil rights have been violated.”
Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Pro se complaints must
be interpreted as raising the strongest claims they suggest, but “must still state a plausible claim
for relief.” Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013).
II.

Section 1983
Section 1983 provides that “[e]very person who, under the color of any statute, ordinance,

regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the
United States ... to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured.” 42 U.S.C. § 1983. Section 1983 “is
not itself the source of substantive rights, but a method for vindicating federal rights elsewhere
conferred by those parts of the United States Constitution and federal statutes it describes.” Baker
v. McCollan, 443 U.S. 137, 144 n.3, 99 S. Ct. 2689, 61 L.Ed.2d 433 (1979); see also Patterson v.
Cty. of Oneida, 375 F.3d 206, 225 (2d Cir. 2004). To state a claim under Section 1983, a plaintiff
must allege (1) “the challenged conduct was attributable to a person who was acting under color
of state law” and (2) “the conduct deprived the plaintiff of a right guaranteed by the U.S.
Constitution.” Castilla v. City of New York., No. 09 Civ. 5446(SHS), 2013 WL 1803896, at *2
(S.D.N.Y. Apr. 25, 2013); see also Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010).

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DISCUSSION
Defendants seek to dismiss the remainder of Plaintiff’s claims by arguing that (i) Plaintiff
fails to plausibly allege any of the elements of his deliberate indifference and cruel and unusual
punishment; and (ii) Plaintiff’s allegations do not implicate the Fifth or Sixth Amendments. For
the reasons articulated below, the Court DISMISSES the remainder of Plaintiff’s claims.
I.

Deliberate Indifference and Cruel and Unusual Punishment
Plaintiff raises an Eighth Amendment claim for deliberate indifference and cruel and

unusual punishment based on the fact that he was placed in the SHU for 65 days following his Tier
III disciplinary hearing, which he alleges was a wrongful confinement. See SAC at 7. While he
was in the SHU, Plaintiff appealed the conviction to the Central Office, and on April 2, 2013, his
conviction was reversed and expunged, as the commissioner’s office noted that the “circumstances
surrounding incident raise questions as to inmate's culpability.” See Smith, 2018 WL 2305566 at
*3.
The Eighth Amendment guarantees freedom from “cruel and unusual punishment.” U.S.
Const. amend. VIII. This includes depriving prisoners of their “basic human needs—e.g., food,
clothing, shelter, medical care, and reasonable safety.” Helling v. McKinney, 509 U.S. 25, 32, 113
S.Ct. 2475, 125 L.Ed.2d 22 (1993) (quoting DeShaney v. Winnebago Cty. Dep't of Soc. Serv., 489
U.S. 189, 200, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989)). For a plaintiff to establish that a prison
official violated the Eighth Amendment, “(1) the alleged deprivation must, as an objective matter,
be ‘sufficiently serious,’ [i.e., the “objective prong”] and (2) the alleged perpetrator—ordinarily a
prison official—must possess a ‘sufficiently culpable state of mind’ [i.e., the “subjective prong.”].”
Randle v. Alexander, 960 F. Supp. 2d 457, 470 (S.D.N.Y. 2013) (quoting Farmer v. Brennan, 511
U.S. 825, 834, 114 S. Ct. 1970, 128 L.Ed.2d 811 (1994)).

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For the “objective prong,” “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.” Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (quoting Nance v. Kelly, 912 F.2d
605, 607 (2d Cir. 1990)). For the “subjective prong,” the prison official must “know[ ] of and
disregard[ ] an excessive risk to inmate health or safety” that would result from his or her act or
omission. Jones v. Avanzato, No. 14-cv-2044 (NSR), 2016 WL 183565 at *3 (S.D.N.Y. Jan. 13,
2016) (citing Farmer, 511 U.S. at 837). A party must also allege personal involvement of the
wrongdoer to allege a constitutional deprivation. Marhone v. Cassel, No. 16-CV-4733 (NSR),
2022 WL 4468056, at *12 (S.D.N.Y. Sept. 26, 2022).
Here, the Court agrees with Defendants that Plaintiff’s allegations fail on both the objective
and subjective elements of his Eighth Amendment claim, which must therefore be dismissed.
First, Plaintiff’s allegations fail to plead that he was incarcerated under conditions posing
a substantial risk of serious harm to his health or safety. Plaintiff only establishes that he was put
in the SHU for 65 days pursuant to a violation for which he was later exonerated, but that alone is
not sufficient to establish the objective element of an Eighth Amendment claim. See Kingwood v.
Coombe, 96 Civ. 432, 1997 WL 323913, at *7 (S.D.N.Y. June 13, 1997) (plaintiff spent more than
200 days in SHU, but “absent any allegations that plaintiff’s treatment in SHU confinement was
in some manner differed from usual SHU treatment, his [Eighth Amendment] claim must fail.”);
see also Gonzalez v. Hasty, 802 F.3d 212, 223 (2d Cir. 2015) (“A period of confinement under
typical SHU conditions lasting longer than 305 days, for example, triggers a protected liberty
interest, whereas a period of confinement lasting between 101 and 305 days may trigger a protected
liberty interest, depending on the specific conditions of confinement.”).

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Second, Plaintiff fails on the subjective element because he fails to allege personal
involvement by any of the Defendants in subjecting him to purportedly unconstitutional conditions
of confinement, as he must in order to successfully plead deliberate indifference under the Eighth
Amendment and Section 1983. Ashcroft v. Iqbal, 556 U.S. 662,676 (2009) (a plaintiff must allege
facts to show that “each Government-official defendant, through the official’s own individual
actions, has violated the Constitution”); Brandon v. Royce, No. 16 CV 5552 (VB), 2019 WL
1227804, at *9 (S.D.N.Y. Mar. 15, 2019) (“It is well settled in this Circuit that personal
involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of
damages under § 1983.”).
Therefore, for the aforementioned reasons, the Court dismisses Plaintiff’s Eighth
Amendment claim.
II.

Fifth and Sixth Amendment Claims
In the SAC, Plaintiff raises claims under the Fifth and Sixth Amendments, which appear

to be connected to his allegations that he was denied procedural due process during his Tier III
disciplinary hearing, resulting in his 65-day sentence in the SHU.
The Court first agrees with Defendants that Plaintiff fails to state a claim under the Fifth
Amendment. To the extent Plaintiff bases his Fifth Amendment claim on his allegations that his
due process rights were violated during his Tier III disciplinary hearing, such claim fails for the
same reasons articulated in the Court’s decision on the prior motion for summary judgment. The
Court has already found no issue of material fact regarding the sufficiency of process provided to
Plaintiff during his Tier III disciplinary hearing, and specifically, that his due process rights were
not violated because Plaintiff failed to request the presence of his fourth-witness during his
hearing, and he therefore waived such testimony. See Smith, 2018 WL 2305566 at *6. In any

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event, the Due Process Clause of the Fifth Amendment generally applies to the federal government
rather than to the States, so Plaintiff’s Fifth Amendment claim does not apply here as there are no
federal actors being sued. See Dusenbery v. United States, 534 U.S. 161, 167 (2002) (“The Due
Process Clause of the Fifth Amendment prohibits the United States, as the Due Process Clause of
the Fourteenth Amendment prohibits the States, from depriving any person of property without
“due process of law.”).
The Court also finds that Plaintiff fails to state a claim under the Sixth Amendment. The
Sixth Amendment guards against unjustified deprivations of liberty by requiring the federal
government to provide specific procedural protections to all those accused of committing a crime.
Specifically, the Sixth Amendment protects the accused's right to a speedy trial, the right to a
public trial, the right to a trial before an impartial jury drawn in a prescribed manner, the right to
notice, the right of confrontation, the right to compulsory process, and the right to assistance of
counsel. U.S. Const. amend. VI. The Supreme Court has held that, for the most part, the
Fourteenth Amendment's Due Process Clause guarantees defendants in state courts the same
fundamental procedural protections guaranteed to defendants in federal court under the Sixth
Amendment. See Duncan v. Louisiana, 391 U.S. 145 (1968) (jury trial); Washington v. Texas, 388
U.S. 14 (1967) (compulsory process); Klopfer v. North Carolina, 386 U.S. 213 (1967) (speedy
trial); Pointer v. Texas, 380 U.S. 400 (1965) (confrontation); Gideon v. Wainwright, 372 U.S. 335
(1963) (counsel); see also Herring v. New York, 422 U.S. 853, 857 n.7 (1975) (citing to prior cases
as having incorporated the rights to public trial and notice (citations omitted)). In addition, “[t]he
absence of any facts alleging a defendant's personal involvement in the violation of a plaintiff's
Sixth Amendment right to a speedy trial [] dooms any such claim.” Brooks v. Panas, No. 14-CV4835 (PKC), 2016 WL 614684, at *4 (E.D.N.Y. Feb. 16, 2016).

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As indicated above, the Court has already found that Plaintiffs’ failed to demonstrate an
issue of material fact concerning sufficient process afforded to him during the Tier III disciplinary
hearing. See Smith, 2018 WL 2305566 at *5. Plaintiff fails to provide any other allegations to
make out a viable Sixth Amendment claim. Therefore, Plaintiff fails to plead a Sixth Amendment
claim.
Therefore, the Court dismisses Plaintiff’s Fifth and Sixth Amendment claims.
III.

Qualified Immunity
Defendants argue that even if Plaintiff states a claim, they are entitled to qualified

immunity. (Defs.’ Br. at 6.) The doctrine of qualified immunity gives “officials ‘breathing room
to make reasonable but mistaken judgments about open legal questions.’” Ziglar v. Abbasi, 137 S.
Ct. 1843, 1866, 198 L. Ed. 2d 290 (2017) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743, 131 S.
Ct. 2074, 179 L. Ed. 2d 1149 (2011)). As such, “qualified immunity shields both state and federal
officials from suit unless [1] the official violated a statutory or constitutional right that [2] was
clearly established at the time of the challenged conduct.” Terebesi v. Torreso, 764 F.3d 217, 230
(2d Cir. 2014) (internal quotation marks omitted). To determine whether a right was clearly
established, the Court looks to: (1) “the specificity with which a right is defined”; (2) the existence
of Supreme Court or the applicable circuit court case law on the subject; and (3) whether it was
“objectively reasonable” for the defendant to believe the conduct at issue was lawful. Id. at 231;
Gonzalez v. City of Schenectady, 728 F.3d 149, 161 (2d Cir. 2013).
Because the Plaintiff fails to state any claim, the Court need not assess at this time whether
the Defendants are entitled to qualified immunity.
CONCLUSION

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For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss (ECF No
134) and DISMISSES Plaintiff’s Second Amended Complaint in its entirety without leave to
replead. The Clerk of Court is respectfully directed to terminate the motion at ECF No. 134, to
enter judgment accordingly, and to close the case.
The Clerk of the Court is also directed to mail a copy of this order to pro se Plaintiff at his
address on the docket.

Dated:

November 30, 2022
White Plains, New York

SO ORDERED:
________________________________
NELSON S. ROMÁN
United States District Judge

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