Barker v. New York State Department of Corrections et al
OPINION AND ORDER re: 21 MOTION to Dismiss the Complaint. filed by Limaye, Elswerekwu, J. Osinski. The Defendants' motion to dismiss is GRANTED in part and DENIED in part. Only Plaintiff's procedural due process and fede ral false imprisonment claims against DSR Smith remain. Defendants' Counsel is directed to submit a completed Scheduling Order to the Court (see attached). The Clerk of Court is directed to mail a copy of this Opinion to pro se Plaintiff at t he address reflected on the docket, and to amend the caption to reflect that Defendant Elswerekwu's surname is should be spelled "Ekwerekwu." The Clerk of Court is also respectfully directed to terminate the motion at ECF No. 21. So Ordered. (Signed by Judge Nelson Stephen Roman on 8/24/17) (yv)
The following facts are drawn from Plaintiff’s Complaint, ECF No. 2, and are accepted as
true for the purpose of this motion.
The crux of Plaintiff’s claim is that he was falsely accused of an assault that occurred at
Downstate Correctional Facility and wrongfully placed in the SHU on June 9, 2015. (Compl. at
On June 9, 2015, Sgt. Osinski issued an Inmate Misbehavior Report (“IMR”), signed by
C.O. Ekwerekwu, charging Plaintiff with violating Department of Corrections and Community
Supervision (“DOCCS”) Rules 100.10 and 104.11, which prohibit assaults upon inmates and
violent conduct, respectively. (See Compl. at 36; Def. Mem. at 1.) Specifically, the IMR indicates
that on the same date, Plaintiff was serving as the housing unit porter while another inmate was in
the shower, that they were both in the “25-30 tier” and that they were the only two inmates outside
of their cells at this time. (Compl. at 36.) According to the report, while the other inmate was
showering, the housing unit officer who was presumably C.O. Ekwerekwu, instructed Plaintiff to
pick up supplies from the east lobby, and observed him leaving tier 25-30 to do so. (Id.) According
to C.O. Ekwerekwu, approximately one minute later, the other inmate came from tier 25-30 asking
where the porter (Plaintiff) went.
C.O. Ekwerekwu observed a two-and-a-half-inch
laceration on the left side of the inmate victim’s face, and noted that the inmate victim was
bleeding. (Id. at 36-38.)
Sgt. Osinski was notified, and questioned Plaintiff about the incident in the east lobby (see
id. at 8, 37.) Plaintiff told Sgt. Osinski that he “didn’t have a problem with anyone on the date of
6.9.15.” (Id. at 8.) Sgt. Osinski also observed the inmate victim and determined that the injury
sustained was consistent with a “cutting instrument.” (Id. at 38.) Both inmates’ cells were
searched, along with common areas of their Housing Unit 2-B, and no weapon or cutting
instruments were found. (Id.) Nonetheless, it was determined that Plaintiff was responsible for
the assault, and Lt. Limaye approved Plaintiff’s transfer to the SHU on the same date as the
incident (the “Incident”). (Id. 8, 38.) Plaintiff contends that Sgt. Osinski wrote a false misbehavior
report to “assist/cover up” for C.O. Ekwerekwu’s failure to properly monitor his assigned post, the
housing unit where the assault occurred. (Id. at 4.)
From June 25, 2015 through July 13, 2015, a Superintendent Hearing was held by DSR
Smith regarding the Incident. (Id. at 23.) At the conclusion of the hearing DSR Smith found
Plaintiff guilty of violating DOCCS Sections 100.10 and 104.11. (Id.) In her report on the
disposition rendered, DSR Smith indicated that she relied upon: the misbehavior report, which
indicated Plaintiff was in the housing unit and the relevant tier at the time of the incident; Plaintiff’s
own testimony that he was in the tier while the victim inmate was in the shower; C.O.
Ekwerekwu’s testimony about the timeframe of the incident; testimony from officers and inmates
that all other cell doors were locked; and the victim inmate’s testimony that he was in the shower
in tier 25-30 when he believes he was cut. (Id. at 25.) As to the reasons for her disposition, DSR
Smith noted she considered Plaintiff’s prior institutional history and that prior sanctions and
restrictions had failed to deter him. (Id.) Plaintiff was sentenced to 270 days in the SHU,
beginning on June 9, 2015, loss of various privileges, and loss of “good time” for six months. (Id.
at 23.) Plaintiff appealed DSR Smith’s determination to the Commissioner, and obtained a reversal
on September 15, 2015. (Id. at 22.) However, Plaintiff was not released from the SHU until
October 6, 2015. (Id. at 12.)
STANDARD ON A MOTION TO DISMISS
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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); accord
Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). “While legal conclusions can provide the
framework of a complaint, they must be supported by factual allegations.” Id. at 679. To survive
a motion to dismiss, a complaint must supply “factual allegations sufficient ‘to raise a right to
relief above the speculative level.’” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98
(2d Cir. 2007) (quoting Twombly, 550 U.S. at 555). The Court must take all material factual
allegations as true and draw reasonable inferences in the non-moving party’s favor, but the Court
is “‘not bound to accept as true a legal conclusion couched as a factual allegation,’” or to credit
“mere conclusory statements” or “[t]hreadbare recitals of the elements of a cause of action.” Iqbal,
556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
In determining whether a complaint states a plausible claim for relief, a district court must
consider the context and “draw on its judicial experience and common sense.” Id. at 662. 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.
Furthermore, with regard to pro se Plaintiffs, the Court must “construe [ ] [the] [Complaint]
liberally and interpret[ ] [it] to raise the strongest arguments that [it] suggest[s].” Martinez, 164 F.
Supp. 3d at 508 (quoting Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013)). Yet, “the liberal
treatment afforded to pro se litigants does not exempt a pro se party from compliance with relevant
rules of procedural and substantive law.” Id. (quoting Bell v. Jendell, 980 F. Supp. 2d 555, 559
(S.D.N.Y. 2013), and citing Caidor v. Onondaga Cty., 517 F.3d 601, 605 (2d Cir. 2008) (“[P]ro
se litigants generally are required to inform themselves regarding procedural rules and to comply
Allegations as to the Misbehavior Report
Plaintiff asserts that Sgt. Osinski wrote a false misbehavior report to assist or “cover up”
for C.O. Ekwerekwu’s failure to properly monitor the housing unit where the assault occurred.
(Compl. at 4.) Defendant contends that Plaintiff has failed to exhaust his administrative remedies
under the Prisoner Litigation Reform Act (“PLRA”) prior to bringing this action, and that
Plaintiff’s claims as to the false misbehavior report must therefore be dismissed.
The PLRA bars prisoners from bringing suit in federal court regarding their confinement
“until such administrative remedies as are available are exhausted.” Hicks v. Adams, 16-509 (PR),
2017 WL 2628874, at *1 (2d Cir. June 19, 2017) (summ. order) (citing 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.” Johnson v. Annucci, 15-CV-3754 (NSR), 2016 WL 3847745, at *3 (S.D.N.Y.
July 7, 2016) (citing Giano v. Goord, 380 F.3d 670, 675 (2d Cir. 2004) (quoting Porter v. Nussle,
534 U.S. 516, 532 (2002))).
The PLRA’s grievance process requires an inmate of a New York State facility to exhaust
his administrative remedies through a three-tiered Inmate Grievance Program (“IGP”) pursuant to
7 N.Y.C.R.R. § 701.5. See Johnson v. Fraizer, 16-CV-6096 (CJS), 2016 WL 7012961, at *3
(W.D.N.Y. Dec. 1, 2016).
DOC[C]S’ Inmate Grievance Program (“IGP”) has a regular threetiered process for adjudicating inmate complaints: (1) the prisoner
files a grievance with the Inmate Grievance Resolution Committee
(“IGRC”), (2) the prisoner may appeal an adverse decision by the
IGRC to the superintendent of the facility, and (3) the prisoner then
may appeal an adverse decision by the superintendent to the Central
Officer Review Committee (“CORC”)
Id. (citing Quezada v. Ercole, 09-CV-2832 (DLC), 2011 WL 3251811, at *4 (S.D.N.Y. July 29,
2011) (citing Espinal v. Goord, 554 F.3d 216, 224 (2d Cir. 2009))); see Khalild v. Reda, 00-CV7691 (LAK) (GWG), 2003 WL 42145, at *3 (S.D.N.Y. Jan. 23, 2003) (“An inmate has not
exhausted his administrative remedies until he goes through all three levels of the grievance
procedure.”) (internal quotation marks and citation omitted).
“[F]ailure to exhaust is an affirmative defense under the PLRA” and, as such, “inmates are
not required to specially plead or demonstrate exhaustion in their complaints.” Roland v. Smith,
907 F. Supp. 2d 385, 388 (S.D.N.Y. 2012) (citing Jones v. Bock, 549 U.S. 199, 216 (2007)).
Instead, defendants bear the burden of demonstrating that the plaintiff’s claim is not exhausted.
Key v. Toussaint, 660 F. Supp. 2d 518, 523 (S.D.N.Y. 2009). However, “a district court … may
dismiss a complaint for failure to exhaust administrative remedies if it is clear on the face of the
complaint that the plaintiff did not satisfy the PLRA exhaustion requirement.” Williams v.
Correction Officer Priatno, 829 F.3d 118, 122 (2d Cir. 2016); see also Lee v. O’Harer, 13-CV1022, 2014 WL 7343997 (TJM) (ATB), at *3 (N.D.N.Y. Dec. 23, 2014) (“Dismissal under Rule
12(b)(6) for failure to exhaust is appropriate if such failure is evidenced on the face of the
complaint and incorporated documents.”).
According to the Complaint, Plaintiff did utilize the IGP, but did so to challenge the way
in which the Superintendent Hearing was conducted, and the ultimate determination. (See Compl.
at 16.) (“Which claim(s) in this complaint did you grieve?” “The manner in which the tier hearing
was being conducted.”) Plaintiff was told that this issue could not be pursued through the
grievance process, and later appealed the outcome of the hearing. (Id.) Though a disciplinary
appeal is sufficient to exhaust a claim that Plaintiff was deprived of due process at a disciplinary
hearing, “allegations of staff misconduct related to the incidents giving rise to the discipline must
be grieved.” Scott v. Gardner, 287 F. Supp. 2d 477, 489 (S.D.N.Y. 2003), on reconsideration in
part, 344 F. Supp. 2d 421 (S.D.N.Y. 2004), and on reconsideration in part, 2005 WL 984117
(S.D.N.Y. Apr. 28, 2005); see Kimbrough v. Fischer, 13-CV-100 (FJS) (TWD), 2014 WL
12684106, at *6 (N.D.N.Y. Sept. 29, 2014), report and recommendation adopted, 2016 WL
660919 (N.D.N.Y. Feb. 18, 2016) (“An inmate ‘cannot satisfy the PLRA’s exhaustion requirement
as to grievable matters that do not directly relate to the conduct of a hearing simply by alluding to
them in his administrative appeal of the hearing decision. For example, if at the hearing the inmate
asserts … allegations of misconduct by the correction officers involved in the underlying events,
the inmate cannot adequately exhaust his remedies for PLRA purposes through his administrative
appeal of the hearing decision; he must separately grieve the alleged misconduct of the officers”)
(citing Rosales v. Bennett, 297 F. Supp. 2d 637, 639 (W.D.N.Y. 2004)); Mateo v. Gundrum, 10CV-1103 (GLS) (TWD), 2013 WL 5464722, at *2, 4, 8 (N.D.N.Y. Sept. 30, 2013) (finding that
plaintiff had not exhausted administrative remedies with respect to claim involving false
misbehavior report where he had not filed a grievance as to that issue, even though in his
disciplinary appeal he indicated he believed Defendant had written false report); see also Mayo v.
Lavis, 16-1664 (PR), 2017 WL 1493680, at *2 (2d Cir. Apr. 26, 2017) (claims against defendants
for writing false misbehavior report and providing false testimony at disciplinary hearing, even
when construed as retaliation claim, barred for failure to exhaust through grievance process).
Plaintiff does not attempt to contradict Defendants’ contentions, nor did he oppose
Defendants’ motion to dismiss. As such, the Court cannot assess, for instance, whether Plaintiff
contends he attempted to appropriately grieve his claim concerning the allegedly false misbehavior
report, and whether his administrative remedies were in fact “unavailable”3 such that he should be
To the extent that remedies are available, exhaustion is mandatory. However, where administrative remedies are not
“available,” failure to comply with the PLRA exhaustion requirement may be excused. Williams v. Correction Officer
excused from failing to exhaust these claims. As such, because Plaintiff failed to utilize the
appropriate grievance process for his claims as to the Misbehavior Report prior to bringing suit,
the Court must conclude that he has failed to exhaust available administrative remedies. See Ross
v. Blake, 136 S. Ct. 1850, 1857 (2016) (“mandatory exhaustion statutes like the PLRA establish
mandatory exhaustion regimes, foreclosing judicial discretion”). For these reasons, Plaintiff’s
claims against Osinski and Ekwerekwu concerning the allegedly false misbehavior report are
dismissed without prejudice for renewal to the extent it is possible for Plaintiff to exhaust these
claims, or alternatively, to the extent he can allege the administrative remedies were “unavailable”
as described in footnote three.4
Personal Involvement of Lt. Limaye
Similar to the misbehavior report, Plaintiff alleges that the Unusual Incident Report was
also created as an attempt to conceal Defendants C.O. Ekwerekwu’s and Sgt. Osinski’s failure to
perform their duties, and that the author concluded that Plaintiff committed the underlying offense
without proper evidence, relying only upon C.O. Ekwerekwu’s account. (See Compl. at 3, 6.)
Plaintiff also appears to allege that this report was utilized at his hearing. (See, e.g., id. at 6.)
Priatno, 829 F.3d 118, 123–24 (2d Cir. 2016). There are at least three circumstances under which such remedies are
considered “unavailable.” “First, an administrative remedy may be unavailable when it ‘operates as a simple dead
end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates.’ Second, ‘an
administrative scheme might be so opaque that it becomes, practically speaking, incapable of use.’ In other words,
‘some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it.’ Third,‘an administrative
remedy may be unavailable ‘when prison administrators thwart inmates from taking advantage of a grievance process
through machination, misrepresentation, or intimidation.’” Id. (quoting Ross v. Blake, S. Ct. 1850, 1859-60 (2016);
but see id. at 123 (“special circumstances” exception, permitting plaintiffs to file suit in federal court without first
exhausting administrative remedies, abrogated).
The Court notes that, as proof of Plaintiff’s failure to exhaust, Defendants offer a declaration by Jeffrey Hale,
Assistant Director of the Inmate Grievance Program at DOCCS, indicating there is no record that Plaintiff exhausted
his claims as to the allegedly false misbehavior report. (See Decl. of Jeffrey Hale In Support of Def. Mot to Dismiss,
at 2-3, ECF No. 23.) Defendants have also included a notice sent to Plaintiff, who is proceeding pro se, apprising
him of his obligations in opposing a motion to dismiss, including the possibility that the Motion may be converted
into one for summary judgment, as is required by Local Civil Rule 12.1. Roland v. Smith, 907 F. Supp. 2d 385, 389
(S.D.N.Y. 2012); (see ECF No. 25.) Because it is clear from the face of the Complaint that Plaintiff failed to exhaust
his claims as to the false misbehavior report, the Court need not considered these documents.
According to the Unusual Incident Report appended to Plaintiff’s Complaint, Limaye appears to
be the author. (Id. at 37.) Thus, drawing all reasonable inferences in Plaintiff’s favor, he appears
to allege a claim against Limaye for authoring a false unusual incident report. Defendants do not
address any potential claims against Limaye for allegedly authoring a false Unusual Incident
Report to protect Ekwereku and Osinski.
Plaintiff also alleges that Limaye approved Plaintiff’s initial confinement in the SHU “with
no reliable evidence.” (Id. at 8.) Defendants counter that – to the extent Plaintiff asserts a claim
against Limaye for the role he played in placing Plaintiff in the SHU – Limaye can only be held
responsible for the time period between June 9, 2016, when Plaintiff was first placed in the SHU
prior to Plaintiff’s Superintendent Hearing, and July 13, 2015, the date DSR Smith issued her
determination. (see Def. Mem. at 12.) Defendants also assert that Plaintiff has failed to establish
personal involvement of Lt. Limaye because he fails to allege that: Limaye authored or endorsed
the allegedly false Misbehavior Report; testified at Plaintiff’s hearing; contributed in any way to
the finding of Plaintiff’s guilt, or that Limaye’s actions were the “proximate cause” of Plaintiff’s
injury. (See Def. Mem. at 11-12 (“Rather, Plaintiff’s injuries were proximately caused by (1) the
IMR; and (2) the disciplinary hearing disposition”).)
To the extent Plaintiff does in fact intend to assert a claim against Limaye for authoring a
false Unusual Incident Report, the Court need not address the legal sufficiency of this claim.
Similar to Plaintiff’s allegations with regard to the false Misbehavior Report, Plaintiff must also
exhaust his administrative remedies with regard to any claim against Limaye for authoring the
Unusual Incident Report prior to filing a claim in federal court. See McClenton v. Menifee, 05CV-2844 (JGK), 2006 WL 2474872, at *8 (S.D.N.Y. Aug. 22, 2006) (indicating claim against
author of alleged false incident report must also be exhausted through administrative grievance
process). Thus, for the same reasons the Court finds that Plaintiff failed to exhaust his
administrative remedies as to his claims regarding the false Misbehavior Report, the Court must
also find that Plaintiff has failed to exhaust his administrative remedies against Limaye for drafting
the allegedly false Unusual Incident Report. As such, this claim is also dismissed without
Assuming Plaintiff does intend to assert a claim against Limaye for placing Plaintiff in the
SHU for the 34-day period after the Incident and prior to his Superintendent Hearing, precedent in
this Circuit dictates that such a brief period of confinement does not implicate a liberty interest
and cannot support a due process claim. Murray v. Arquitt, 10-CV-1440 (NAM) (CFH), 2014 WL
4676569, at *14 (N.D.N.Y. Sept. 18, 2014) (“cases in this Circuit typically affirm dismissal of due
process claims where the period of time spent in SHU was short-e.g. 30 days-and there was no
indication [of] ... unusual conditions”). Nor does Plaintiff appear to allege he experienced any
“unusual conditions” during this thirty-four day confinement period. As such, any claims asserted
against Limaye for Plaintiff’s initial placement in the SHU is also dismissed.
Defendants also assert that they are entitled to qualified immunity: with regard to Plaintiff’s
claims against Osinski and Ekwerekwu concerning the false misbehavior report, and against
Limaye concerning the initial 34 day confinement prior to the Superintendent Hearing. Because
the Court finds that Plaintiff’s failure to exhaust his administrative remedies is dispositive of his
claims regarding the allegedly false reports, the Court need not address this argument. As to the
allegation against Limaye for Plaintiff’s initial SHU confinement, because Plaintiff has not
plausibly alleged conduct supporting a due process claim, the Court need not address whether
Limaye would be entitled be entitled to qualified immunity. See Johnson v. Perry, 859 F.3d 156,
169 (2d Cir. 2017) (“The doctrine of ‘[q]ualified immunity shields government officials from civil
damages liability unless the official violated a statutory or constitutional right that was clearly
established at the time of the challenged conduct.’”) (quoting Reichle v. Howards, 566 U.S. 658,
664 (2012); McClenton v. Menifee, 05-CIV-2844 (JGK), 2006 WL 2474872, at *15 (S.D.N.Y.
Aug. 22, 2006) (“First, the Court must undertake a threshold inquiry into whether the plaintiff’s
allegations, if true, establish a constitutional violation … If the plaintiff’s allegations do not state
a constitutional claim, “there is no necessity for further inquiries concerning qualified immunity.”)
(internal quotation marks and citations omitted).
Defendants argue that Plaintiff has failed to state a claim for false imprisonment with
regard to his sentence to the SHU. (See Def. Mem. at 19-20.) “A prisoner can succeed on a false
imprisonment claim only where he has sufficiently pleaded that he had been subjected to punitive
segregation for no legitimate reason and without the rudimentary protections of due
process.” Jackson v. N.Y. Dep’t of Corr’n Servs., 994 F.Supp. 219, 224 (S.D.N.Y. 1998).
Plaintiff has adequately alleged that he was subjected to punitive segregation in the form
of approximately5 120 days of confinement in the SHU. Banks v. Pinker, 10-CV-4139 (RMB),
2012 WL 1066799, at *3 (S.D.N.Y. Mar. 22, 2012) (allegation Plaintiff spent 120 days in SHU
can suffice to adequately allege punitive segregation); Koehl v. Bernstein, 10-CV-3808 (GWG),
2011 WL 2436817, at *7 (S.D.N.Y. June 17, 2011) (that plaintiff “spent 120 days in the SHU [can,
under certain circumstances,] constitute an atypical and significant hardship”).
(See Compl. at 11-12 (indicating Plaintiff was held for 101 days, plus an additional 19 days, from September 17,
2015 through October 6, 2015); id. at 13 (indicating Plaintiff held for “121 days”).)
Construing the Complaint liberally, Plaintiff also adequately alleges that he was denied
rudimentary protections of due process.6 These protections include “advance written notice ...; a
hearing affording him a reasonable opportunity to call witnesses and present documentary
evidence; a fair and impartial hearing officer; [and] a statement of the disposition including the
evidence relied upon and the reasons for the disciplinary actions taken.” Sira v. Morton, 380 F.3d
57, 69 (2d Cir. 2004). Given Plaintiff alleges that DSR Smith conducted the Superintendent
Hearing in an unfair and partial manner, that she ignored documents supporting Plaintiff’s
contention of his innocence at the hearing along with other inconsistencies in the evidence
presented, and found him guilty based upon improper considerations, among other relevant
allegations, and considering Defendants make no argument to contrary, the Court finds Plaintiff
has plausibly alleged that he was denied the basic protections of due process.
Construing the Complaint liberally, Plaintiff also plausibly alleges that he was subjected to
punitive segregation without “legitimate reason.” In response, to demonstrate that his SHU
confinement was in fact based upon a legitimate reason, Defendants point to Plaintiff’s admission
that he was serving as unit porter and was thus outside of his cell when another inmate was
assaulted, as well as language in DSR Smith’s Disposition Report attached to the Complaint,
indicating other inmates and officers testified that “the other cell doors were locked.”7 The Court
must accept as true Plaintiff’s contentions that he was serving as a unit porter at the time of the
incident and presumably had permission to be outside of his cell; and that DSR Smith ignored
documents and inconsistencies in the evidence presented at the hearing which supported Plaintiff’s
Defendants presumably concede that Plaintiff’s assertions are sufficient to form the basis of a plausible allegation
that he was subjected to punitive segregation without the rudimentary elements of due process, as they argue only that
Plaintiff fails to allege he was placed in the SHU for “no legitimate reason”. (See Def. Mem. at 20.)
Defendants’ Memorandum contends that the Disposition Report, ECF No. 2, at 25, reflects that the officers and
inmates testified that “no other inmate was out of their cell.” This appears to be an inference based upon testimony
of officers and inmates to the effect that “other cell doors were locked” (see ECF No. 2 at 25).
claims of innocence, stated she was aware of the “officers not being very truthful,” and, although
noting in her report that there was testimony that other cell doors were locked during the Iincident,
did not indicate whether and how she ultimately drew the conclusion that Plaintiff and the victim
were the only two inmates outside of their cell, (see, e.g., Compl. at 8-9, 25) (though the Court
notes this was indicated in the allegedly false Misbehavior Report). Based upon these allegations,
and the fact that Defendants cite no controlling authority indicating a conclusion to the contrary is
more appropriate at this time, the Court finds that Plaintiff has plausibly alleged his false
imprisonment claim as to his confinement in the SHU as a result of the disciplinary hearing where
he was denied the basic protections of due process.
Plaintiff’s Claims of Property Loss
Defendants also contend that Plaintiff fails to state a plausible claim for loss of personal
property when Plaintiff was transferred between facilities. (See Def. Mem. at 21 (citing to “SOC
¶ 28” or Compl. at 12.); see also Compl. at 9 (alleging loss of property due to “transfer[s] from
SHU to SHU (movement of SHU facility(s) [sic]”).)
To the extent Plaintiff alleges a claim for property loss “that claim is subject to ready dismissal
since it is well-established that New York provides an adequate post-deprivation remedy for such
losses.” Thompson v. LaClair, 08-CV-0037 (FJS) (DEP), 2009 WL 2762164, at *8 (N.D.N.Y.
Aug. 25, 2009) (citing Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996)). This remedy is provided
through Section 9 of the New York Court of Claims Act, which permits an inmate such as Plaintiff
to pursue his claim for deprivation of property against the State in the Court of Claims. Key v.
Tanoury, 05-CV-10461 (SHS), 2006 WL 3208548, at *2 (S.D.N.Y. Nov. 3, 2006) (citing DeMaio
v. Mann, 877 F. Supp. 89, 95 (N.D.N.Y. 1995), aff’d mem., 122 F.3d 1055 (2d Cir. 1995)).
Although Plaintiff’s claim could perhaps survive if he alleged he was denied access to an
adequate post-deprivation remedy, he does not do so. Montanez v. Lee, No. 14-CV-3205 (NSR),
2016 WL 3866594, at *7 (S.D.N.Y. July 12, 2016); Bridgewater v. Taylor, 698 F. Supp. 2d 351,
361 (S.D.N.Y. 2010) (“Deprivation of an inmate’s property by a state actor may constitute a
violation of the inmate’s due process rights … but only if a meaningful post-deprivation remedy
is not available … New York State, however, provides inmates with a post-deprivation remedy
through the Court of Claims.”) (citing Hudson v. Palmer, 468 U.S. 517, 533, 104 (1984)
(additional citations omitted)). Because adequate state law remedies exist, and Plaintiff does not
allege he has been deprived of these remedies, he has not been deprived of property without due
process of law and cannot state a claim for relief on these grounds. For these reasons, Plaintiff’s
allegations regarding the loss of his property do not give rise to a plausible claim for relief, and
the Court must dismiss Plaintiff’s claims for property loss.
Plaintiff’s State Law Claims
Defendants argue that any claim for damages arising out of state law negligence8 and false
imprisonment claims must also be dismissed as barred by New York Corrections Law § 24. (Def.
Mem. at 21.)
Under § 24, a plaintiff cannot assert a civil action against correctional officers and
employees of the Department of Correctional Services, in their individual capacities, “for damages
arising out of any act done or the failure to perform any act within the scope of the employment
Defendants also contend that, to the extent Plaintiff asserts a negligence claim under 42 U.S.C. § 1983, presumably
for the loss of his property, these claims must also be dismissed. (See Def. Mem. at 21 n.5.) This Court agrees. See
New Holland Vill. Condo. v. DeStaso Enterprises Ltd., 139 F. Supp. 2d 499, 503 (S.D.N.Y. 2001), aff’d sub nom., 29
F. App’x 760 (2d Cir. 2002) (“negligence—even gross negligence, or negligence that results in grievous injury—
cannot be disguised as constitutional claims and brought in a federal court under 42 U.S.C. § 1983. Mere negligence
by a state official does not deprive an individual of life, liberty or property without due process of law … This is true
even if the state’s negligence results in the loss of life or property.”).
and in the discharge of the duties by such officer or employee.” N.Y. Correct. L. § 24. New York
Corrections Law § 24 precludes “‘the assertion of claims against corrections officers [in their
personal capacities] in any court, including the federal courts,’ by designating the New York State
Court of Claims as the only available venue to bring a claim for damages arising out the acts
committed by corrections officers within the scope of their employment.”
Koenigsmann, 12-CV-00035 (MAD), 2014 WL 1292281, at *15 (N.D.N.Y. Mar. 31, 2014) (citing
Baker v. Coughlin, 77 F.3d 12, 15 (2d Cir. 1996)); Ramos v. Artuz, 00-CV-0149, 2001 WL 840131,
at *6 (S.D.N.Y. July 25, 2001) (concluding that § 24 barred inmate’s state law claims for
negligence against DOCCS employees in their individual capacities); Francis v. Fiacco, 15-CV00901 (MAD) (ATB), 2016 WL 3448617, at *4 (N.D.N.Y. June 20, 2016) (barring pendent state
claims, including state law false imprisonment claim, as precluded by New York Correction Law
Plaintiff does not appear to allege that Defendants acted outside of the scope of their
employment. See Francis, 2016 WL 3448617, at *4. As such, these claims must be pursued in
the New York Court of Claims, and the Court dismisses any state law negligence and false
For the foregoing reasons, the Defendants’ motion to dismiss is GRANTED in part and
DENIED in part. Only Plaintiff’s procedural due process and federal false imprisonment claims
against DSR Smith remain. Defendants’ Counsel is directed to submit a completed Scheduling
Order to the Court (see attached). The Clerk of Court is directed to mail a copy of this Opinion to
pro se Plaintiff at the address reflected on the docket, and to amend the caption to reflect that
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Rev. May 2014
CIVIL CASE DISCOVERY PLAN
AND SCHEDULING ORDER
- against -
This Civil Case Discovery Plan and Scheduling Order is adopted, after consultation with
counsel, pursuant to Fed. R. Civ. P. 16 and 26(f):
All parties [consent] [do not consent] to conducting all further proceedings before
a Magistrate Judge, including motions and trial, pursuant to 28 U.S.C. § 636(c).
The parties are free to withhold consent without adverse substantive consequences.
(If all parties consent, the remaining paragraphs of this form need not be
This case [is] [is not] to be tried to a jury.
Joinder of additional parties must be accomplished by ______________________.
Amended pleadings may be filed until _____________________. Any party
seeking to amend its pleadings after that date must seek leave of court via motion.
Interrogatories shall be served no later than ___________________, and responses
thereto shall be served within thirty (30) days thereafter. The provisions of Local
Civil Rule 33.3 [shall] [shall not] apply to this case.
First request for production of documents, if any, shall be served no later than
Non-expert depositions shall be completed by ____________________________.
Unless counsel agree otherwise or the Court so orders, depositions shall not
be held until all parties have responded to any first requests for production
Depositions shall proceed concurrently.
Whenever possible, unless counsel agree otherwise or the Court so orders,
non-party depositions shall follow party depositions.
Any further interrogatories, including expert interrogatories, shall be served no
later than _______________________.
Requests to Admit, if any, shall be served no later than
Expert reports shall be served no later than ______________________.
Rebuttal expert reports shall be served no later than ______________________.
Expert depositions shall be completed by ______________________.
Additional provisions agreed upon by counsel are attached hereto and made a part
ALL DISCOVERY SHALL BE COMPLETED BY ______________________.
Any motions shall be filed in accordance with the Court’s Individual Practices.
This Civil Case Discovery Plan and Scheduling Order may not be changed without
leave of Court (or the assigned Magistrate Judge acting under a specific order of
The Magistrate Judge assigned to this case is the Hon.
If, after entry of this Order, the parties consent to trial before a Magistrate Judge,
the Magistrate Judge will schedule a date certain for trial and will, if necessary,
amend this Order consistent therewith.
The next case management conference is scheduled for _____________________,
at ____________. (The Court will set this date at the initial conference.)
Dated: White Plains, New York
Nelson S. Román, U.S. District Judge
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