McCollough v. Hale et al
Filing
41
OPINION AND ORDER: For the reasons stated above, Defendant's motion to dismiss the Complaint is GRANTED with leave to rep lead. Plaintiff shall have until November 26, 2018 to file a Second Amended Complaint. The Court respectfully directs the Clerk of the Court to mail a copy of this opinion to Plaintiff at Plaintiffs address on the docket and to show proof of service on the docket. The Clark of the Court is also respectfully requested to terminate the motion at ECF No. 35. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 10/25/2018) (jca) Transmission to Docket Assistant Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#: _ _ _ _ _ _ __
DATE Fll.ED: \'J 1 ,_ ':, ;
r ,-
MICHAEL McCOLLOUGH,
I
-
'
Plaintiff,
16-cv-1783 (NSR)
-againstANTHONY GRIFFIN, Superintendent of Green
OPINION & ORDER
Haven Correctional Facility,
Defendant.
NELSON S. ROMAN, United States District Judge
Plaintiff Michael McCollough, proceeding prose, commenced this action on February 9,
2015 against Defendant Thomas Griffin, Superintendent of the Green Haven Correctional Facility,
alleging violations of 42 U.S.C. § 1983. Presently before this Court is a motion to dismiss
Plaintiffs amended complaint ("Complaint," ECF No. 15) pursuant to the Federal Rules of Civil
Procedure Rule 12(b)(6) for failure to state a claim upon which relief can be granted.
(Memorandum of Law in Support of Defendant's Motion to Dismiss ("Def.'s Mot. to Dismiss"),
ECF No. 35.) For the reasons set forth below, Defendant's motion is GRANTED.
BACKGROUND
Plaintiff alleges that in October 2014, while he was incarcerated in Green Haven
Correctional Facility ("Green Haven"), William Lee, Green Haven's Superintendent at that time,
issued Plaintiff what appears to be an exemption from having the legal documents in his cell
confiscated. (Compl.
,r,r 11 -
14.) Defendant Griffin then replaced Lee as Superintendent of
Green Haven. (Id.
,r 14.)
Plaintiff alleges that Defendant Griffin "radically implicated [sic] new
policy, procedure and regulation by directing his subordinates to confiscate legal and personal
property protected under [the] former [S]uperintendent's policy and procedures." (Id.)
According to Plaintiff, as a result of Defendant Griffin's policy, Plaintiff was extracted from his
cell on September 10, 2015, Plaintiffs cell was searched outside of his presence, and correction
officers then confiscated his typewriter and legal documents from his cell. (Id.
,r 15.)
He asserts
that the seizures "undeniably closed the doors to unfettered access to the Court[,] and constitute a
viable cause of action to proceed further in this action." (Id.)
On or about September 15, 2015, Plaintiff filed an institutional claim that was forwarded
to D. Smith, a Green Haven claim officer, for processing. (Id.
,r 16.)
Plaintiff states that his
institutional claim came to "no avail." (Id.) On October 3, 2015, Plaintiff filed an administrative
complaint with E. William, Green Haven's Deputy Superintendent of Administration, whom
Plaintiff describes as an "appeals claim officer." (Id.) Plaintiff asserts that he stated in his
administrative complaint to William that Smith had constructively denied the claim that Plaintiff
had filed with Smith because Smith had "fail[ed] to process the claim." (Id.) On or about
September 20, 2015, Plaintiff filed a grievance conceming the seizures of his property and the
failure of Green Haven officials to act on his claims. (Id.
,r 17.)
Plaintiff appears to assert that he
ultimately appealed his grievance to "the superintendent" which presumably refers to Defendant
Griffin, who "failed to act in accord to [sic] a three-step grievance process and thereby frustrated
appellate review." 1 (Id.)
1
Plaintiff attaches to his Complaint a copy of a decision of what may be Green Haven's Inmate Grievance
Resolution Committee ("IGRC"). The handwritten decision is faded and is mostly unreadable, but Plaintiff signed
that decision, indicating that he agreed with it yet wished to appeal to the Superintendent.
2
On an undisclosed date, Plaintiff was transfen-ed to Sing Sing. He states that he notified
R. Allen, a Sing Sing claims officer, "of [Allen's] continuous duty to act as [a] liaison in
furtherance to [sic] Green Haven Co1Tectional Facility colleagues['] continuous violation," but
Allen "made no effort whatsoever to locate Plaintiffs property." (Id.
,r 18.)
Plaintiff states that
his "injuries and damages are ... direct consequences of [the transferor court's] decision and
order[,] [which] prevented Plaintiff [from] filing additional submission[ s] to establish a plausible
cause of action." (Id.
,r 19.)
In an order issued on October 16, 2016 (ECF No. 22), the Court, sua sponte, dismissed E.
William, D. Smith, and R. Allen from Plaintiffs Complaint for failure to state a claim on which
relief may be granted. (Id.) The Comi also dismissed without prejudice Plaintiffs claim of
denial of access to the courts against Defendant Griffin, which leaves Plaintiffs procedural due
process claim against Defendant Griffin as the sole surviving claim from Plaintiffs Complaint.
(Id.)
LEGAL STANDARDS
I.
Motion to Dismiss
To survive a Rule 12(b)(6) motion, a complaint must plead "enough facts to state a claim
to relief that is plausible on its face." Bell At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A
claim is facially plausible when the factual content pleaded allows a comi "to draw the
reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). "While legal conclusions can provide the framework of a complaint,
they must be supp01ied by factual allegations." Id. at 679. In considering a 12(b)(6) motion, a
court must take all material factual allegations as true and draw reasonable inferences in the nonmoving pmiy's favor, but a court is "not bound to accept as true a legal conclusion couched as a
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factual allegation." Id. at 678 (quoting Twombly, 550 U.S. at 555) (internal quotation marks
omitted). A court also need not credit "mere conclusory statements" or "[t]hreadbare recitals of
the elements of a cause of action." Id.
Further, a court is generally confined to the facts alleged in the complaint for the
purposes of considering a motion to dismiss pursuant to 12(b)(6). Cartee Indus. v. Sum Holding
L.P., 949 F.2d 42, 47 (2d Cir. 1991). A court may, however, consider documents attached to the
complaint, statements or documents incorporated into the complaint by reference, matters of
which judicial notice may be taken, public records, and documents that the plaintiff either
possessed or knew about, and relied upon, in bringing the suit. See Kleinman v. Elan Corp., 706
F.3d 145, 152 (2d Cir. 2013).
Where a plaintiff proceeds pro se, the court must construe the complaint liberally and
interpret it to "raise the strongest arguments that [it] suggest[s]." Askew v. Lindsey, No. 15-CV7496(KMK), 2016 WL 4992641, at *2 (S.D.N.Y. Sept. 16, 2016) (quoting Sykes v. Bank of
America, 723 F.3d 399,403 (2d Cir. 2013)). Yet, "the liberal treatment afforded to prose 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)).
II.
42 U.S.C. § 1983 Claims
Section 1983 provides that "[e]very person who, under 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 a source of substantive rights, but a method for vindicating
federal rights elsewhere conferred by those parts of the United States Constitution and federal
4
statutes that it describes." Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979); see Patterson v.
County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004). To state a claim under§ 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-CV-5446(SHS), 2013 WL 1803896, at *2
(S.D.N.Y. Apr. 25, 2013); see Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010); Quinn v. Nassau
Cty. Police Dep't, 53 F. Supp. 2d 347,354 (E.D.N.Y. 1999) (Section 1983 "furnishes a cause of
action for the violation of federal rights created by the Constitution.").
Here, Plaintiff alleges that the Defendants violated his Fourteenth Amendment procedural
due process rights.
DISCUSSION
The Fourteenth Amendment provides that no state shall "deprive any person of life,
liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. To state a
procedural due process claim entitling Plaintiff to damages under§ 1983, Plaintiff must show
that Defendant acted under color of state law and "(1) that Defendant[ ] deprived him of a
cognizable interest in life, liberty, or property, (2) without affording him constitutionally
sufficient process." Proctor v. LeClaire, 846 F.3d 597, 608 (2d Cir. 2017) (internal quotation
marks omitted); Bedoya v. Coughlin, 91 F.3d 349, 351
52 (2d Cir. 1996). "An unauthorized
intentional deprivation of property by a state employee does not constitute a violation of the
procedural requirements of the Due Process Clause of the Fourteenth Amendment if a
meaningful post-deprivation remedy for the loss is available." Hudson v. Palmer, 468 U.S. 517,
533 (1984). In New York, the law allows inmates to seek post-deprivation remedy in New
York's Court of Claims, and the Second Circuit has held that this remedy is adequate to preclude
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§ 1983 due process claims for the unauthorized deprivation of property. Davis v. New York, 311
F. App'x 397,400 (2d Cir. 2009); JCG v. Ercole, No. 08-CV-3593(VM), 2014 WL 1630815, at
*32 (S.D.N.Y. Apr. 24, 2014) (citing Bridgewater v. Taylor, 698 F. Supp. 2d 351, 361 (S.D.N.Y.
2010)). That the property confiscated were legal documents and a typewriter does not change
this analysis. Little v. Municipal Corp., 51 F. Supp. 3d 473,499 (S.D.N.Y. 2014) (holding that
the allegation that the defendants removed the plaintiffs legal paperwork from his cell during a
search was insufficient to state a due process claim because the plaintiff had an adequate post
deprivation remedy); Rodriguez v. Coughlin, 795 F. Supp. 609, 613 (W.D.N.Y. 1992) (granting
summary judgment for the defendants on the plaintiffs claim that the confiscation and loss of his
legal documents during a cell search violated his constitutional rights); Jordan v. Bellinger, No.
Civ.A. 98-230(GMS), 2000 WL 1239956, at *8 (D. Del. Aug. 28, 2000) (dismissing a plaintiffs
claim that the seizure of his legal documents violated his due process rights because the plaintiff
had adequate post-deprivation remedies under state law). Because there is an adequate post
deprivation remedy, Plaintiff cannot state a procedural due process claim upon which relief can
be granted for the confiscation of his property during the cell search.
Plaintiff also alleges that the search of his cell occurred outside of his presence.
Construing Plaintiffs Complaint liberally, see Askew v. Lindsey, No. 15-CV-7496(KMK), 2016
WL 4992641, at *2 (S.D.N.Y. Sept. 16, 2016), the Court interprets this allegation as a due
process claim. Cell searches outside the presence of inmates are not due process violations
because inmates do not have a cognizable interest in life, libe1iy, or prope1iy in the privacy of
their cells. See Hudson v. Palmer, 468 U.S. 517, 525 -26 (1984); Block v. Rutherford, 468 U.S.
576, 590 (1984) (holding that conducting cell searches outside of the presence of pretrial
detainees did not violate due process under the Fourteenth Amendment); United States v.
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Carrasquillo, No. 03-CR-952(NRB), 2004 WL 102774, at *2 (S.D.N.Y. Jan. 21, 2004) (holding
that an inmate's due process rights were not violated by a search of his cell in his absence).
Thus, Plaintiff has not stated a facially plausible claim upon which reHef can be granted for the
search of his cell outside of his presence.
Finally, Plaintiff claims that Defendant Griffin failed to act on Plaintiffs grievance about
the removal of his property from his cell. Specifically, Plaintiff alleges that he "appealed to the
superintendent of the constitutional violation and failed to act in accord to a three-step grievance
process and thereby frustrated appellate review attached herewith as Exhibit C." (Compl. 117.)
Attached to Plaintiffs Complaint is what appears to be Plaintiffs grievance, dated September
15, 2015 and addressed to the "Grievance Supervisor." There is no appeal directed to Defendant
Griffin. Plaintiffs Complaint contains no other facts to suggest that Defendant Griffin failed to
adhere to the grievance procedure or that Defendant ever actually received the appeal. Plaintiffs
conclusory allegations are insufficient to establish that Defendant failed to follow the grievance
procedure, depriving Plaintiff of his property without constitutionally sufficient process.
Assuming Plaintiff stated a facially plausible claim, the claim would still be dismissed based on
lack of personal involvement. Failure to act on a grievance or appeal is not personal
involvement under§ 1983. See Rivera v. Bloomberg, Nos. l 1-CV-629, 11-CV-4325, 2012 WL
3655830, at *6 (S.D.N.Y. Aug. 27, 2012); Wardv. LeClaire, No. 07-CV-6145, 2008 WL
3851831, at *3 (W.D.N.Y. Aug. 14, 2008). 2
Although courts must construe complaints of pro se plaintiffs liberally, pro se plaintiffs
are not exempt from compliance with procedural and substantive laws. Askew v. Lindsey, No. 15-
2
Defendant's motion to dismiss also argues that Defendant is entitled to qualified immunity and that
Plaintiff failed to plausibly allege that Defendant was personally involved in any alleged due process violation.
(Def.'s Mot. to Dismiss pp. 3 - 5.) Because the Court dismisses Plaintiffs Complaint, the Court need not address
Defendant's personal involvement or qualified immunity arguments.
' 7
CV-7496(KMK), 2016 WL 4992641, at *2 (S.D.N.Y. Sept. 16, 2016). Accordingly, because
there is an adequate post-deprivation state remedy for Plaintiffs claims about his property and
because Plaintiffs Complaint contains no other facts sufficient to support a facially plausible due
process violation, Defendant's motion to dismiss must be granted.
CONCLUSION
For the reasons stated above, Defendant's motion to dismiss the Complaint is GRANTED
with leave to rep lead. Plaintiff shall have until November 26, 2018 to file a Second Amended
Complaint. The Court respectfully directs the Clerk of the Court to mail a copy of this opinion
to Plaintiff at Plaintiffs address on the docket and to show proof of service on the docket. The
Clark of the Court is also respectfully requested to terminate the motion at ECF No. 35.
Dated:
SO ORDERED:
October 25, 2018
White Plains, New York
NE
United States District Judge
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