Jackson v. Wilburn et al
Filing
71
OPINION & ORDER re: 64 MOTION to Dismiss . filed by C.O. Celaj, New York State Correctional Sergeant Frunzi, H.O. Moore, C.O. Lyons, Wilburn, Albert Prack. For the foregoing reasons, Defendants' motion to dismiss is GRANT ED. The Clerk of the Court is respectfully directed to terminate the pending motion, (Doc. 64), enter judgment for Defendants, and close the case. SO ORDERED. (Signed by Judge Cathy Seibel on 11/18/2019) (ks) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------x
CRAIG JACKSON,
Plaintiff,
- against ALBERT PRACK, H.O. HENRY MOORE, H.O.
DOUGLAS WILBURN, SGT. JOHN FRUNZI,
C.O. BRUCE TUCKER, C.O. ABIZ CELAJ, and
C.O. ROBERT LYONS,
OPINION & ORDER
No. 16-CV-7561 (CS)
Defendants.
-------------------------------------------------------------x
Appearances:
Craig Jackson
Stormville, New York
Pro Se Plaintiff
Neil Shevlin
Assistant Attorney General
Office of the New York State Attorney General
New York, New York
Counsel for Defendants
Seibel, J.
Before the Court is the motion to dismiss of Defendants Albert Prack, Hearing Officer
(“HO”) Henry Moore, HO Douglas Wilburn, Sergeant John Frunzi, Correctional Officer (“CO”)
Bruce Tucker, CO Abiz Celaj, and CO Robert Lyons (collectively, “Defendants”). (Doc. 64.)
For the following reasons, Defendants’ motion is GRANTED.
I.
BACKGROUND
I accept as true the facts, but not the conclusions, set forth in Plaintiff’s Second Amended
Complaint. (Doc. 53 (“SAC”).)
Facts
Pro se Plaintiff Craig Jackson is an inmate at the Green Haven Correctional Facility in
Stormville, New York. (Id. ¶ 6.) On or around February 14, 2014, while Plaintiff was
incarcerated at the Sullivan Correctional Facility in Sullivan County, New York, Defendant CO
Tucker told Plaintiff that Plaintiff “was not going to be in this prison much longer.” (Id. ¶¶ 6,
14-15; id. Ex. A.) On February 18, Plaintiff filed a grievance against Tucker stating that he was
“worried for his safety” and that Tucker “smelled like he had been drinking” and seemed
“crazy.” (Id. ¶ 16; id. Ex. A.) 1 On February 21, 2014, when Plaintiff was on his way to the gym,
Tucker frisked Plaintiff, found a hand-rolled cigarette, confiscated it as contraband, and let
Plaintiff go on to the gym. (Id. ¶ 18-19.) CO Young, not a defendant here, tested the cigarette
and found it was positive for marijuana. (Id. ¶ 20.) On February 24, 2014, Plaintiff was served
with a misbehavior report (“MBR”), authored by Young, alleging drug possession in violation of
prison rule 113.25 (“February 24 MBR”). (Id. ¶ 21; id. Ex. E.) Plaintiff met with a “Tier III
assistant” and requested testimony from three witnesses (two of whom agreed) and various
documents. (Id. ¶ 22.)
A disciplinary hearing commenced on February 27, 2014, and was presided over by
Defendant HO Moore, a plant superintendent. (Id. ¶ 23.) 2 Plaintiff pleaded not guilty to the
violation. (Id. ¶ 24.) He asked that the cigarette be tested for his DNA, and Moore denied that
request. (Id. ¶ 28.) Evidence was presented in support of the MBR: Tucker testified that the
1
In the SAC Plaintiff alleges that the conversation with Tucker occurred on February 18,
2014. (SAC ¶ 15.) In his grievance, Plaintiff states that the conversation took place on February
14, 2014. (Id. Ex. A.)
2
The hearing took place over several days: February 27 and March 5, 6, 7, 17, and 18,
2014. (SAC ¶¶ 23, 25, 31, 37; id. at 8, 9.)
2
cigarette “didn’t look right” to him, (id. ¶ 29); Sgt. Frunzi testified that the cigarette “smelled
odd, and definitely didn’t look like tobacco,” (id. ¶ 35); and Young explained that the cigarette
tested positive for marijuana, (id. ¶ 38). According to Plaintiff, if he had really had drugs or a
cigarette on him, he would not have been allowed to go on to the gym. (Id. ¶¶ 31, 36.) Tucker
“denied” Plaintiff’s witnesses because they were not present, but Tucker also said he would call
them if present. (Id. ¶ 37.) One of Plaintiff’s witnesses later testified by phone. (Id. Ex. G at
47-49.) 3
Moore found Plaintiff guilty of the rule violation and sentenced him to 270 days in the
Special Housing Unit (“SHU”) and a recommended loss of 365 days of good time. (Id. ¶ 44.)
Plaintiff’s sentence was reduced by the prison superintendent to 180 days in the SHU, and then
he appealed to Defendant Prack, the New York State Department of Corrections and Community
Supervision (“DOCCS”) officer in charge of the SHU, who was responsible for reviewing and
making determinations of administrative appeals submitted to him by inmates found guilty at
Tier III prison disciplinary hearings. (Id. ¶¶ 7, 45-46.) On June 5, 2014, Prack modified the
sentence to three months in the SHU, six months of loss of packages and other privileges, and
recommended loss of good time of three months. (Id. ¶ 46; id. Ex. K.)
After Plaintiff was “escorted from the gym and locked up” on suspicion of possessing a
marijuana cigarette, (id. ¶ 47), Frunzi ordered Plaintiff to submit a urine sample, which Lyons
collected on February 21 and Celaj tested on February 26, (id. ¶¶ 47-49). The sample twice
tested positive for THC, and that same day, Celaj wrote and another officer served on Plaintiff an
MBR for violation of prison rule 113.24, which prohibits the use of a controlled substance
3
This witness did not see Tucker find the cigarette but saw Plaintiff in the gym for at
least half an hour before COs handcuffed Plaintiff and removed him from the gym. (Id. Ex. G at
47-49.)
3
(“February 26 MBR”). (Id. ¶¶ 49-50.) On March 3, 2014, prior to the disciplinary hearing on
the February 26 MBR, Plaintiff met with an individual identified as “Miss Helt,” a hearing
assistant. (Id. ¶ 52.) Plaintiff requested that Helt assist him in procuring DOCCS directives
concerning urinalysis, a list of medications that could result in a false-positive urinalysis result, a
list of all COs on the 3 to 11 tour who were certified on the testing machine, the certification of
the machine operator, the make and model of the machine, and the address and phone number of
the machine’s manufacturer. (Id. ¶¶ 52-53; id. Ex. P; id. Ex. Q (“Tr.”) at 10.) Plaintiff did not
receive the testing directive, certification, or lists ahead of time, but did get the information about
the machine. (Tr. at 3.) During the hearing, Plaintiff received the directive and a list of
medications that could cause a false positive, although Plaintiff challenged the completeness of
that list. (Id. at 6, 19-21.)
The Tier III disciplinary hearing commenced on March 6, 2014 before HO Wilburn.
(SAC ¶ 53.) 4 Plaintiff argued that his prescribed medication “Muranton” caused a false positive
(although Muranton was not on the list of drugs that can cause false positives provided by
Wilburn) and asserted that the positive result was the product of a mistake or human error. 5 (See
id. ¶¶ 54, 57, 62-63.) Plaintiff asked to call as a witness a representative from the company that
makes the urinalysis machine, but Wilburn denied his request. (Id. ¶ 66.) At the end of the
hearing Wilburn denied a request for the operator’s certificate because Plaintiff had not asked for
it during the operator’s testimony. (Tr. at 29.) Wilburn also denied Plaintiff’s request for the list
of other certified COs, finding it to be irrelevant. (Id. at 3.)
4
The hearing took place over several days: March 6, 10, 11, and 13, 2014. (SAC ¶¶ 53,
60, 69, 73; Tr. at 32, 33.)
5
The Court is not aware of any prescription medication called Muranton. Plaintiff may
mean Neurontin.
4
On March 12, 2014, Wilburn found Plaintiff guilty of the rule violation and sentenced
him to 180 days in the SHU and 180 days of loss of recreation and other privileges. (Id. ¶¶ 7273.) Plaintiff’s sentence was reduced by the superintendent to 180 days in the SHU and 90 days
of loss of visits, and then Plaintiff appealed to Defendant Prack, who further reduced the
sentence to 90 days in the SHU and 120 days of loss of recreation and other privileges. (Id.
¶¶ 74-76.)
Plaintiff initiated an Article 78 proceeding challenging the March 12 determination. (Id.
¶ 77.) On June 29, 2015, after Plaintiff had served both ninety-day sentences in the SHU, the
March 12 determination was administratively reversed and expunged from Plaintiff’s record.
(Id. ¶ 78; see id. Ex. Z.) While he was in the SHU at Southport Correctional Facility – the
facility to which he was transferred – Plaintiff alleges that he was “[f]orced to be confined in a
cell 23 hours a day while inmates on either side of him flung human feces at each other.” (Id.
¶¶ 78A-B.) The unbearable stench affected his ability to eat. (Id.)
Procedural History
Plaintiff’s Complaint, dated September 19, 2016, named Wilburn, Prack, Jane Does 1-10,
and John Does 1-10 as defendants in their official and individual capacities, and brought claims
for denial of due process, intentional infliction of emotional distress, and “atypical and
significant hardship” under 42 U.S.C. §§ 1983, 1985, and 1986, arising out of the February 26
MBR and the related disciplinary proceedings. (Doc. 2.) On April 21, 2017, Wilburn and Prack
filed a letter requesting a pre-motion conference and stating their intention to move to dismiss for
failure to state a claim. (Doc. 19.) At the pre-motion conference on May 18, 2017, the Court
granted Plaintiff leave to amend his Complaint, (Minute Entry dated May 18, 2017), which he
did on June 14, 2017, naming Celaj, Lyons, and Frunzi as defendants (in addition to Prack and
5
Wilburn) and bringing claims for illegal search, denial of due process, Eighth Amendment
violation, equal protection violation, First Amendment retaliation, and conspiracy, again relating
to the February 26 MBR and subsequent proceedings, (Doc. 25 (“AC”)). I also set a schedule for
Defendants to move to dismiss or answer. (Minute Entry dated May 18, 2017.) Defendants
twice requested extensions of time, which I granted. (Docs. 26-27, 31-32.)
On October 23, 2017, Defendants moved to dismiss the AC, (Doc. 33), and Plaintiff
timely opposed on November 14, 2017, (Doc. 39). At a conference on September 26, 2018, I
granted Defendants’ motion in large part, dismissing all claims except Plaintiff’s due process
claim against Wilburn. (Minute Entry dated Sept. 26, 2018.) I also granted Plaintiff leave to
amend his Complaint by November 30, 2018, to add (1) facts to cure deficiencies that I identified
concerning his retaliation, conspiracy, Fourth Amendment, Eighth Amendment, and bias-based
due process claims against Wilburn; (2) facts to demonstrate that Prack created a policy or
custom, or allowed one to continue, that violated Plaintiff’s rights; and (3) two unnamed
defendants: the CO who allegedly found Plaintiff in possession of marijuana, and a lieutenant,
only if Plaintiff could allege in good faith that the lieutenant had reason to doubt the information
provided by the then-unnamed CO (who turned out to be Tucker). (Id.) Finally, I granted
Plaintiff’s Valentin request and ordered the Attorney General’s office to provide assistance
identifying the unnamed officers, (id.), which it did on October 17, 2018, (Doc. 47). When
Plaintiff informed the Court that he did not receive Defendants’ Valentin letter, (Doc. 48), I
ordered Defendants to re-send it and extended Plaintiff’s time to file his SAC until December 10,
2018, (Doc. 49).
In his SAC, dated December 4, 2018, Plaintiff brought the following claims under 42
U.S.C. §§ 1983 and 1985: (1) First Amendment retaliation against Prack, Moore, Frunzi, and
6
Tucker; conspiracy to violate his Fourteenth Amendment due process rights against the same;
and failure to intervene against Prack, Moore, and Frunzi, all arising out of the February 24
MBR and subsequent proceedings, (SAC ¶¶ 79-84); and (2) First Amendment retaliation against
Prack, Wilburn, Frunzi, Tucker, Celaj, and Lyons; conspiracy to violate his Fourteenth
Amendment due process rights against the same; and failure to intervene against Prack, Wilburn,
and Frunzi, arising out of the February 26 MBR and subsequent proceedings, (id. ¶¶ 85-90).
On December 19, 2018, Defendants requested an extension of time to answer, (Doc. 54),
which I granted, (Doc. 55). On February 25, 2019, Defendants filed a letter requesting a premotion conference regarding their intended motion to dismiss the SAC. (Doc. 59.) I ordered
Plaintiff to respond by March 21, 2019, and scheduled the conference for March 28, 2019. (Doc.
60.) Plaintiff advised the Court that he had not received a copy of Defendants’ pre-motion letter,
and I ordered Defendants to re-send it. (Doc. 61). On March 26, 2019, Plaintiff filed a letter
opposing Defendants’ pre-motion letter. (Doc. 62.) At the pre-motion conference on March 28,
2019, Defendants discussed the basis for their proposed motion to dismiss, and I granted Plaintiff
leave to amend the SAC by April 29, 2019 to add facts to his existing claims if he so desired, and
I advised him that he would not have another opportunity to amend to respond to Defendants’
pre-motion letter. I ordered Defendants to move to dismiss or answer by May 29, 2019, Plaintiff
to oppose by July 3, 2019, and Defendants to reply by July 17, 2017. (Minute Entry dated Mar.
28, 2019.) I also ordered Defendants to send a copy of the Court’s September 26, 2018 bench
ruling to Plaintiff. (Id.) Plaintiff did not file a Third Amended Complaint.
On May 17, 2019, Plaintiff filed a letter, (Doc. 63), that seemed to be a further response
to Defendants’ pre-motion letter. On May 29, 2019, Defendants moved to dismiss the SAC,
(Doc. 64), and filed a memorandum of law in support of their motion, (Doc. 66 (“Ds’ Mem.”)).
7
On June 24, 2019, the Court received a letter from Plaintiff in which he said that he received
Defendants’ motion, requested a “return date” for his response, and asked about the “status” of
the motion. (Doc. 67.) I advised Plaintiff that, as explained at the March 28, 2019 conference,
his opposition papers were due July 3, 2019. (Doc. 68; Text Only Entry dated June 27, 2019.)
Plaintiff never opposed the motion. On November 12, 2019, Defendants wrote to the Court
requesting that their motion be deemed unopposed, (Doc. 69), and I deemed it fully submitted
that same day, (Doc. 70).
II.
LEGAL STANDARD
“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)). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. “While a
complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555 (alteration, citations, and internal quotation marks
omitted). While Federal Rule of Civil Procedure 8 “marks a notable and generous departure
from the hyper-technical, code-pleading regime of a prior era, . . . it does not unlock the doors of
discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 678-79.
In considering whether a complaint states a claim upon which relief can be granted, the
court “begin[s] by identifying pleadings that, because they are no more than conclusions, are not
entitled to the assumption of truth,” and then determines whether the remaining well-pleaded
8
factual allegations, accepted as true, “plausibly give rise to an entitlement to relief.” Id. at 679.
Deciding whether a complaint states a plausible claim for relief is “a context-specific task that
requires the reviewing court to draw on its judicial experience and common sense.” Id.
“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged – but it has not ‘shown’ – ‘that the pleader is entitled to
relief.’” Id. (alteration omitted) (quoting Fed. R. Civ. P. 8(a)(2)).
Complaints by pro se plaintiffs shall be examined with “special solicitude,” interpreted
“to raise the strongest arguments that they suggest,” Shibeshi v. City of N.Y., 475 F. App’x 807,
808 (2d Cir. 2012) (summary order) (internal quotation marks and emphasis omitted), 6 and “held
to less stringent standards than formal pleadings drafted by lawyers,” Hughes v. Rowe, 449 U.S.
5, 9 (1980) (per curiam) (internal quotation marks omitted). Nevertheless, “threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not suffice,”
and district courts “cannot invent factual allegations that [the plaintiff] has not pled.” Chavis v.
Chappius, 618 F.3d 162, 170 (2d Cir. 2010).
III.
DISCUSSION
Plaintiff’s Failure to Oppose
Plaintiff was aware of his opportunity to file opposition papers, (see Minute Entry dated
Mar. 28, 2019; Doc. 68), yet Plaintiff failed to submit a memorandum of law or any other
opposition. But the failure to oppose a motion to dismiss does not in itself justify granting the
motion, because “the sufficiency of a complaint is a matter of law that the court is capable of
determining based on its own reading of the pleading and knowledge of the law.” McCall v.
6
The Court will send Plaintiff copies of all unreported cases cited in this Opinion and
Order.
9
Pataki, 232 F.3d 321, 322-23 (2d Cir. 2000); see Kucharczyk v. Westchester County, 95 F. Supp.
3d 529, 536 (S.D.N.Y. 2015). Accordingly, I consider the merits, granting Plaintiff “special
solicitude,” Shibeshi, 475 F. App’x at 808, and taking into account the arguments made in his
pre-motion letters, (Docs. 62-63).
February 24, 2014 MBR
Plaintiff’s first claim arises under 42 U.S.C. §§ 1983 or 1985. (SAC ¶ 83.) Defendants
argue that this claim is time-barred. (Ds’ Mem. at 7.) “The statute of limitations for actions
brought pursuant to §§ 1983 and 1985 is three years.” Paige v. Police Dep’t of Schenectady, 264
F.3d 197, 199 n.2 (2d Cir. 2001) (per curiam). “Under federal law, which governs the accrual of
claims brought under §§ 1983 and 1985, a claim generally accrues once the plaintiff knows or
has reason to know of the injury which is the basis of his action.” Cornwell v. Robinson, 23 F.3d
694, 703 (2d Cir. 1994) (citation and internal quotation marks omitted).
Because Plaintiff filed the SAC on December 4, 2018, any §§ 1983 and 1985 claims first
brought in the SAC that are based on acts prior to December 4, 2015, are untimely. 7 Plaintiff
alleges that Defendants Prack, Moore, Frunzi, and Tucker fabricated the charges of drug
possession in the February 24 MBR, took actions to suppress and ignore evidence during the Tier
III disciplinary hearing held in February and March 2014, and (as to Prack, Moore, and Frunzi)
failed to intervene to stop the prosecution of the February 24 MBR. The latest of these acts
7
When a pro se plaintiff is incarcerated, documents are is deemed filed when they are
delivered to prison officials for mailing. Dory v. Ryan, 999 F.2d 679, 682 (2d Cir. 1993). It is
unclear exactly when Plaintiff delivered the SAC to the proper officials but, viewed in the light
most favorable to the Plaintiff, he may have delivered it as early as December 4, 2018, the date
that Plaintiff signed the SAC and, according to his certificate of service, mailed it to Defendants.
(SAC at 21, 163.) See Alvarez v. Doe, No. 03-CV-7740, 2004 WL 1874972, at *3 (S.D.N.Y.
Aug. 13, 2004).
10
occurred on June 5, 2014, when Prack modified the sentence, (SAC Ex. K at 2), so none of them
falls within the applicable statute of limitations period.
Plaintiff argues that the SAC “is merely an ‘expansion’ of the same incident” described in
the original Complaint filed September 26, 2016. (Doc. 62 at 1.) I interpret this to be an
argument that the February 24 MBR claims relate back to the date that the original Complaint
was filed. Federal Rule of Civil Procedure 15(c)(1)(B) provides that an amendment to a pleading
relates back to the date of the original pleading when “the amendment asserts a claim or defense
that arose out of the conduct, transaction, or occurrence set out – or attempted to be set out – in
the original pleading.” “For a newly added action to relate back, the basic claim must have
arisen out of the conduct set forth in the original pleading . . . .” Slayton v. Am. Express Co., 460
F.3d 215, 228 (2d Cir. 2006) (internal quotation marks omitted), as amended (Oct. 3, 2006).
“[T]he central inquiry is whether adequate notice of the matters raised in the amended pleading
has been given to the opposing party within the statute of limitations by the general fact situation
alleged in the original pleading.” Stevelman v. Alias Research Inc., 174 F.3d 79, 86 (2d Cir.
1999) (internal quotation marks omitted).
Plaintiff’s newly added claims arising out of the February 24 MBR do not “arise[] out of
the conduct set forth in the original pleading.” Slayton, 460 F.3d at 228; see Fed. R. Civ. P.
15(c)(1)(B). One could not read the original Complaint and understand that there even was a
marijuana cigarette or a February 24 MBR, let alone that Plaintiff was raising any impropriety
with respect to that MBR or the subsequent proceedings. 8 Although the newly added claims are
related in that the drug test was ordered as a result of the discovery of the marijuana cigarette, the
8
The same is true of the AC, which in any event was not signed until June 9, 2017, (Doc.
25 at 32), after the three-year statute of limitations had run.
11
two MBRs were served on different dates and described violations of different rules. Each MBR
gave rise to its own hearing, and the two hearing tracks took place on different dates and had
different hearing officers, witnesses, and arguments. Plaintiff alleges different improprieties as
to each. In sum, nothing in the original Complaint – which focused exclusively on the February
26 MBR – was sufficient to give Defendants notice that Plaintiff had claims arising out of the
February 24 MBR. Accordingly, Plaintiff’s first cause of action pursuant to §§ 1983 and 1985
arising out of the February 24 MBR does not relate back and is dismissed as untimely. I need
not reach Defendants’ other arguments related to those claims.
February 26 MBR
Plaintiff alleges that the events arising out of the disciplinary hearing following the
February 26 MBR involved violation of his due process rights, a conspiracy, and retaliation.
Defendants argue that he fails to state a claim as to each.
1.
Due Process
Plaintiff alleges that Wilburn violated his due process rights. Plaintiff also may be
challenging the sufficiency of the evidence against him.
To state a claim for a violation of due process, a plaintiff must plead “that the state has
created a protected liberty interest and that the process due was denied.” Wright v. Coughlin,
132 F.3d 133, 136 (2d Cir. 1998).
a.
Protectable Liberty Interest
As I explained on the record on September 26, 2018, Plaintiff in his AC sufficiently
pleaded a protectable liberty interest based on the alleged atypical hardship he experienced while
in confinement in the Southport SHU. Defendants have not challenged that conclusion at this
stage, but I address it in an excess of caution.
12
“To identify a protectable liberty interest . . . , prisoners must establish that a given
restraint imposes an ‘atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life.’” Id. (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). Relevant
factors in determining what constitutes an “atypical and significant hardship” include “(1) the
effect of disciplinary action on the length of prison confinement; (2) the extent to which the
conditions of the disciplinary segregation differ from other routine prison conditions; and (3) the
duration of the disciplinary segregation imposed compared to discretionary confinement.” Id.
(internal quotation marks omitted). In other words, “‘[b]oth the conditions and their duration
must be considered, since especially harsh conditions endured for a brief interval and somewhat
harsh conditions endured for a prolonged interval might both be atypical.’” Palmer v. Richards,
364 F.3d 60, 64 (2d Cir. 2004) (quoting Sealey v. Giltner, 197 F.3d 578, 586 (2d Cir. 1999)).
Although there is no “bright line rule that a certain period of SHU confinement automatically
fails to implicate due process rights,” id.; see Sims v. Artuz, 230 F.3d 14, 23 (2d Cir. 2000),
courts in this Circuit routinely find that less than 102 days of solitary confinement does not give
rise to a protected liberty interest, see, e.g., Borcsok v. Early, 299 F. App’x 76, 78 (2d Cir. 2008)
(summary order); Sealey, 197 F.3d at 589; Tafari v. McCarthy, 714 F. Supp. 2d 317, 375
(N.D.N.Y. 2010). But “SHU confinements of fewer than 101 days could constitute atypical and
significant hardships if the conditions were more severe than the normal SHU conditions.”
Palmer, 364 F.3d at 65; see Jackson v. Ricks, No. 02-CV-773, 2006 WL 2023570, at *19
(N.D.N.Y. July 18, 2006) (collecting cases).
Under the normal conditions of SHU confinement in New York, the inmate is placed in a
solitary confinement cell, kept in his cell for twenty-three hours a day, permitted to exercise in
the prison yard for one hour a day, limited to two showers a week, denied various privileges
13
available to general population prisoners (such as the opportunity to work and obtain out-of-cell
schooling), permitted less frequent and shorter visits than in general population, and allowed
fewer books. Palmer, 364 F.3d at 65 n.3; see Sealey, 197 F.3d at 581 (“An inmate is confined to
his cell 23 hours per day, can take no more than three showers per week, has limited library
privileges and no telephone privileges.”); Jackson, 2006 WL 2023570, at *19 (providing a
similar description and collecting cases).
Plaintiff has plausibly alleged that the restraint at issue – ninety days in the SHU during
which he was subjected to other inmates throwing feces around him as well as an unbearable
stench that affected his ability to eat, (see SAC ¶¶ 78A-B) – imposed an atypical and significant
hardship when compared to normal SHU conditions sufficient to plead a protectable liberty
interest. Cf. Gaston v. Coughlin, 249 F.3d 156, 165 (2d Cir. 2001) (vacating summary judgment
as to Eighth Amendment claim where plaintiff asserted, among other things, that for “several
consecutive days . . . his cell was filled with human feces, urine and sewage water”); Ortiz v.
Dep’t of Corr. of N.Y., No. 08-CV-2195, 2011 WL 2638137, at *6 (S.D.N.Y. Apr. 29, 2011)
(“[C]hronic exposure to human waste will give rise to a colorable [§ 1983] claim.”), report &
recommendation adopted, 2011 WL 2638140 (S.D.N.Y. July 5, 2011).
b.
Denial of Due Process
“The due process protections afforded a prison inmate do not equate to ‘the full panoply
of rights’ due to a defendant in a criminal prosecution.” Sira v. Morton, 380 F.3d 57, 69 (2d Cir.
2004) (quoting Wolff v. McDonnell, 418 U.S. 539, 556 (1974)).
Nevertheless, an inmate is entitled to advance written notice of the charges against
him; a hearing affording him a reasonable opportunity to call witnesses and present
documentary evidence; a fair and impartial hearing officer; and a written statement
of the disposition, including the evidence relied upon and the reasons for the
disciplinary action taken.
14
Id. The disciplinary action taken must be supported by at least some reliable evidence. Id.;
Smith v. Arnone, 700 F. App’x 55, 56 (2d Cir. 2017) (summary order); Smith v. N.Y State Dep’t
of Corr. Servs., No. 15-CV-3455, 2018 WL 2305566, at *4 (S.D.N.Y. May 21, 2018), appeal
dismissed, No. 18-1787, 2018 WL 6579309 (2d Cir. Oct. 3, 2018). Whether the “some
evidence” standard is satisfied “does not require examination of the entire record, independent
assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant
question is whether there is any evidence in the record that could support the conclusion reached
by the disciplinary board.” Gaston, 249 F.3d at 163 (internal quotation marks omitted)
(emphasis omitted).
“[T]he inmate facing disciplinary proceedings should be allowed to call witnesses and
present documentary evidence in his defense when permitting him to do so will not be unduly
hazardous to institutional safety or correctional goals.” Wolff, 418 U.S. at 566. A prisoner’s
right to call witnesses or present documents “can be denied on the basis of irrelevance or lack of
necessity,” Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 (2d Cir. 1991) (witnesses);
Richardson v. Williams, No. 15-CV-4117, 2017 WL 4286650, at *9 (S.D.N.Y. Sept. 26, 2017)
(documents), and it is “circumscribed by the penological need to provide swift discipline in
individual cases,” Ponte v. Real, 471 U.S. 491, 495 (1985). In particular, “prison inmates have
no general constitutional right to documents relating to drug testing procedures,” Eleby v. Selsky,
682 F. Supp. 2d 289, 292 (W.D.N.Y. 2010), including “documents showing what substances
could cause a false positive result,” Israel v. Bradt, 228 F. Supp. 3d 237, 240 (W.D.N.Y. 2017).
“[A]ny violations” of an inmate’s “qualified right” to call witnesses or present documents “are
reviewed for harmless error,” Pilgrim v. Luther, 571 F.3d 201, 206 (2d Cir. 2009) (internal
quotation marks omitted), so “an inmate must show that he was prejudiced by the alleged
15
procedural errors, in the sense that the errors affected the outcome of the hearing,” Colantuono v.
Hockeborn, 801 F. Supp. 2d 110, 114 (W.D.N.Y. 2011).
Defendants on this motion raise arguments that they did not raise on the last motion to
dismiss, when I found that Plaintiff had barely pleaded enough for the due process claim to
survive. And the SAC presents more information from which I can analyze Defendants’
arguments.
First, Plaintiff alleges that Wilburn showed him a list of four medications that can cause a
false positive, but that Plaintiff’s medication, 2400 grams of “Muranton,” was not on it. (SAC ¶
54.) Plaintiff asked whether that list included all the medications that could cause a false
positive, and Wilburn responded, “That’s all that was available to me.” (Id.) Lyons did not
contact the prison’s medical department, as required by a prison directive, to verify whether
Plaintiff was on a medication that could have caused a false positive. (Id. ¶¶ 57-58; see id. Ex.
R.) According to Plaintiff, this amounts to a due process violation. Defendants argue that
Wilburn satisfied due process when he gave Plaintiff the list of four medications that could cause
false positives. (Ds’ Mem. at 12.)
Even assuming that the list Wilburn provided was inadequate and omitted medications
that could cause a false positive, and even assuming – contrary to Israel, 228 F. Supp. 3d at 240
– that Plaintiff had a right to such a list, any error would be harmless because Plaintiff has not
alleged that he was taking any medication that could in fact cause a false positive, see Powell v.
Coughlin, 953 F.2d 744, 750 (2d Cir. 1991). He has not claimed that “Muranton” can cause a
false positive or otherwise plausibly alleged facts showing that the outcome of the hearing likely
would have been different had a full list been provided or had the medical department been
16
consulted. See Colantuono, 801 F. Supp. 2d at 115. Absent any facts regarding how he was
prejudiced, Plaintiff has not plausibly alleged a due process violation as to the false-positive list.
Next, Plaintiff contends that Wilburn violated his due process rights by refusing to allow
Plaintiff to call a witness from the manufacturer of the testing machine. (SAC ¶ 66.) Defendants
argue that Wilburn was not required to call such a witness. (Ds’ Mem. at 13.) I agree. Plaintiff
has no right to testing information. See Eleby, 682 F. Supp. 2d at 292-93; see also Alicea v.
Howell, 387 F. Supp. 2d 227, 234 (W.D.N.Y. 2005) (hearing officer’s refusal to call witness
from testing machine manufacturer did not violate plaintiff’s due process rights). Plaintiff has
not plausibly alleged that anything was wrong with the manufacture of the machine, and
therefore he has not shown the necessity of the witness, see Kingsley, 937 F.2d at 30, nor has he
explained how the outcome of the hearing likely would have been different had a witness from
the manufacturer been called, see Powell, 953 F.2d at 750. And calling a witness from the
company would have caused delay, which is another legitimate reason to refuse to call a witness.
See Ponte, 471 U.S. at 495 (explaining “penological need to provide swift discipline in
individual cases”); Wolff, 418 U.S. at 566 (right to call witnesses limited because “[p]rison
officials must have the necessary discretion to keep the hearing within reasonable limits”).
Accordingly, Plaintiff has not plausibly alleged that the denial of the witness amounted to a due
process violation.
Plaintiff alleges that Wilburn violated his due process rights when he denied Plaintiff’s
request for Celaj’s testing certification. (SAC ¶ 71.) But Plaintiff has not alleged that Celaj was
not certified, so any error here would be harmless. Calling Celaj to testify a second time also
would have delayed proceedings. And Plaintiff provides no reason why Wilburn was not
entitled to rely on Celaj’s own testimony that he was certified. See Gaston, 249 F.3d at 163.
17
Finally, Wilburn’s determination was supported by at least “some evidence.” Frunzi
testified that Plaintiff was found in possession of marijuana and Frunzi then ordered a urinalysis.
(See Tr. at 22-23.) Lyons testified to the chain of custody of the urine sample that he collected.
(Id. at 8.) Celaj testified to the results of the urine test. (See id. at 12.) While it would have been
better to eliminate the possibility of a medication-induced false positive, 9 the record before
Wilburn plainly contained evidence that could support his conclusion. See Gaston, 249 F.3d at
163.
Further, even if there were a violation, Wilburn is entitled to qualified immunity.
“Qualified immunity attaches when an official’s conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known,” Kisela v.
Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam) (internal quotation marks omitted), or insofar
as it was objectively reasonable for them to believe that their conduct did not violate such rights,
see Anderson v. Creighton, 483 U.S. 635, 638-39 (1987). A government official sued in his
individual capacity is entitled to qualified immunity
(1) if the conduct attributed to him was not prohibited by federal law; or (2) where
that conduct was so prohibited, if the plaintiff’s right not to be subjected to such
conduct by the defendant was not clearly established at the time it occurred; or (3)
if the defendant’s action was objectively legally reasonable in light of the legal rules
that were clearly established at the time it was taken.
9
Failure to follow the DOCCS policy to investigate whether an inmate’s medication
could cause a false positive result is not alone enough to show a constitutional violation. See
DeLee v. Hannigan, No. 09-CV-838, 2016 WL 5529382, at *3 (W.D.N.Y. Sept. 30, 2016)
(violation of prison disciplinary regulation does not show federal constitutional violation), aff’d,
729 F. App’x 25 (2d Cir. 2018) (summary order); Jackson v. Ramey, No. 07-CV-874, 2010 WL
3761891, at *3 (N.D.N.Y. Sept. 2, 2010) (“[V]iolations of state procedural rules regarding prison
disciplinary hearings do not, by themselves, establish federal due process claims under Section
1983.”) (footnote omitted), report & recommendation adopted, 2010 WL 3761867 (N.D.N.Y.
Sept. 20, 2010).
18
Munafo v. Metro. Transp. Auth., 285 F.3d 201, 210 (2d Cir. 2002) (internal quotation marks,
citations, and alterations omitted); see Creighton, 483 U.S. at 639 (“[W]hether an official
protected by qualified immunity may be held personally liable for an allegedly unlawful official
action generally turns on the objective legal reasonableness of the action assessed in light of the
legal rules that were clearly established at the time it was taken.”) (internal quotation marks and
citation omitted). Qualified immunity “protects all but the plainly incompetent or those who
knowingly violate the law.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (internal quotation
marks omitted).
While an inmate’s limited right to call witnesses or present documents is clearly
established, there is no clearly established law that an inmate is entitled to testimony from the
manufacturer of a testing machine whenever an inmate denies the results that machine produced.
And it is objectively reasonable to rely on test results absent reason to doubt the quality of the
machine or the operation of it by the tester. The same is true for an inmate’s demand for
documentation of the tester’s certification. Even assuming it is objectively unreasonable not to
consider the possibility of a false positive based on medication, that failing, as discussed above,
is harmless, given that Plaintiff does not present facts to support that proposition that his
medication in fact could lead to a false positive. And finally, there is no clearly established law
that would suggest that the amount of evidence available to Wilburn would not meet the “some
evidence” standard.
Thus, Defendants’ motion to dismiss Plaintiff’s procedural due process claim is granted
as to Defendant Wilburn. Plaintiff does not allege how the other Defendants were involved in
conducting the hearings arising out of the February 26 MBR. (See Ds’ Mem. at 14.)
19
Accordingly, Defendant’s motion to dismiss Plaintiff’s procedural due process claim is also
granted as to Defendants Tucker, Frunzi, Moore, Prack. 10
2.
Retaliation
Plaintiff alleges that Defendants retaliated against him in response to the grievance he
filed against Tucker by issuing a false MBR on February 26, 2014, violating his due process
rights during the drug-use disciplinary hearings, and transferring him to another prison facility.
(SAC ¶¶ 85-86, 89.) To plead a First Amendment retaliation claim, he must plausibly allege
“(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.” Dolan v. Connelly, 794 F.3d 290, 294 (2d Cir. 2015) (internal quotation
marks omitted). The Second Circuit has “instructed 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 retaliatory act.”
Id. at 295 (internal quotation marks omitted). Thus, prisoner retaliation claims must be
“supported by specific and detailed factual allegations.” Id. (internal quotation marks omitted).
Conclusory allegations will not suffice. Id. As with any other § 1983 claim, the plaintiff must
also plausibly allege the defendant’s personal involvement in the violation. Brooks v. Rock, No.
11-CV-1171, 2014 WL 1292232, at *19 (N.D.N.Y. Mar. 28, 2014); see DeLee, 729 F. App’x at
31.
10
To the extent Plaintiff alleged that Prack and Frunzi failed to intervene, these claims
are also dismissed. There can be no failure to intervene claim where there is no underlying
violation. Marshall v. City of N.Y., 198 F. Supp. 3d 224, 227 (E.D.N.Y. 2016) (“Because there
was no underlying violation, there can be no cause of action for failure to intervene . . . .”).
20
Plaintiff fails to allege that any of the Defendants were responsible for the decision to
transfer Plaintiff to another facility. Assuming that transfer to be an adverse action, retaliation
claims arising out of it are thus dismissed as to all Defendants because Plaintiff does not allege
that any of them had personal involvement in that action. See DeLee, 729 F. App’x at 31;
Williams v. Hartford, No. 17-CV-2098, 2019 WL 418092, at *2 (D. Conn. Feb. 1, 2019).
Celaj wrote the February 26 MBR. (SAC ¶ 49.) Wilburn presided over the related
disciplinary hearings. (Id. ¶ 53.) Retaliation claims against all other Defendants arising out of
the drug-use disciplinary hearing are dismissed because they did not take “adverse action against
the plaintiff.” See Dolan, 794 F.3d at 294; Williams, 2019 WL 418092, at *2; Brooks, 2014 WL
1292232, at *19. As to Celaj and Wilburn, Plaintiff fails to allege any causal connection
between Plaintiff’s protected activity – filing a grievance against Tucker – and the February 26
MBR and drug-use disciplinary hearings. Indeed, Plaintiff does not allege that either Defendant
knew of the grievance. See Mateo v. Dawn, No. 14-CV-2620, 2016 WL 5478431, at *8
(S.D.N.Y. Sept. 28, 2016) (dismissing complaint where plaintiff did not “allege or otherwise
suggest that Defendants even knew of the complaints filed against other correction officers”)
(collecting cases). 11 Because a causal connection is required, see Dolan, 794 F.3d at 294, and
Plaintiff failed to plead facts plausibly supporting the existence of this element, Defendants’
motion to dismiss for failure to state a First Amendment retaliation claim is granted.
11
While temporal proximity between the protected speech and the adverse action can
support an inference of causation, such an inference requires that the defendant be aware of the
speech. Pavone v. Puglisi, 353 F. App’x 622, 625 (2d Cir. 2009); see Thousand v. King, No. 17CV-1003, 2019 WL 5197311, at *11 (N.D.N.Y. June 21, 2019), report & recommendation
adopted in part, rejected in part, 2019 WL 4183887 (N.D.N.Y. Sept. 4, 2019).
21
3.
Conspiracy
Plaintiff further alleges that Defendants conspired to deprive Plaintiff of his civil rights
by fabricating the charges of drug use and suppressing or ignoring evidence that Lyons failed to
contact the medical department as required. (SAC ¶¶ 85-86, 89.) For the same reasons stated on
the record on September 26, 2018, Plaintiff has failed to state a claim under either §§ 1983 or
1985. As in the AC, Plaintiff has provided no more than conclusory allegations of a conspiracy,
stating that Defendants “in conspiracy . . . fabricated the charges,” (id. ¶ 85); “conspired
further . . . to violate his Due Process rights . . . when H.O. Wilburn acted in a biased manner by
dishonestly suppressing and/or ignoring evidence of Defendant Lyons[’s] failure to contact
medical,” (id. ¶ 86); and “conspired together and were involved in this conspiracy . . . when they
collectively obstructed justice by violating my Due Process rights and privileges by subjecting
me to retaliation with false disciplinary charges,” (id. ¶ 89). These allegations do not provide a
factual basis to support a claim that Defendants engaged in a conspiracy. See Webb v. Goord,
340 F.3d 105, 110 (2d Cir. 2003) (“[T]o maintain an action under Section 1985, a plaintiff must
provide some factual basis supporting a meeting of the minds, such that defendants entered into
an agreement, express or tacit, to achieve the unlawful end.”) (internal quotation marks omitted);
Ciambriello v. County of Nassau, 292 F.3d 307, 325 (2d Cir. 2002) (in context of § 1983
conspiracy claim, “complaints containing only conclusory, vague, or general allegations that the
defendants have engaged in a conspiracy to deprive the plaintiff of his constitutional rights are
properly dismissed; diffuse and expansive allegations are insufficient, unless amplified by
specific instances of misconduct”) (internal quotation marks omitted). In any event, because
there was no underlying violation, the conspiracy claim must fail. Mitchell v. County of Nassau,
22
786 F. Supp. 2d 545, 564 (E.D.N.Y. 2011) (“[A] § 1983 conspiracy claim fails as a matter of law
where there is no underlying constitutional violation.”).
IV.
LEAVE TO AMEND
Leave to amend a complaint should be freely given “when justice so requires.” Fed. R.
Civ. P. 15(a)(2). It is “within the sound discretion of the district court to grant or deny leave to
amend.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007). “Leave to
amend, though liberally granted, may properly be denied for: ‘undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility
of amendment . . . .’” Ruotolo v. City of N.Y., 514 F.3d 184, 191 (2d Cir. 2008) (quoting Foman
v. Davis, 371 U.S. 178, 182 (1962)).
Plaintiff has already amended twice, after having the benefit of two pre-motion letters
from Defendants, (Docs. 19, 59), as well as the Court’s observations during pre-motion
conferences and my ruling on the previous motion to dismiss, (Minute Entries dated May 18,
2017; Sept. 26, 2018; Mar. 28, 2019). In general, a plaintiff’s failure to fix deficiencies in the
previous pleading, after being provided notice of them, is alone sufficient ground to deny leave
to amend. See Nat’l Credit Union Admin. Bd. v. U.S. Bank Nat’l Ass’n, 898 F.3d 243, 257-58
(2d Cir. 2018) (“When a plaintiff was aware of the deficiencies in his complaint when he first
amended, he clearly has no right to a second amendment even if the proposed second amended
complaint in fact cures the defects of the first. Simply put, a busy district court need not allow
itself to be imposed upon by the presentation of theories seriatim.”) (alteration, footnote, and
internal quotation marks omitted); In re Eaton Vance Mut. Funds Fee Litig., 380 F. Supp. 2d
222, 242 (S.D.N.Y. 2005) (denying leave to amend because “the plaintiffs have had two
23
opportunities to cure the defects in their complaints, including a procedure through which the
plaintiffs were provided notice of defects in the Consolidated Amended Complaint by the
defendants and given a chance to amend their Consolidated Amended Complaint,” and
“plaintiffs have not submitted a proposed amended complaint that would cure these pleading
defects”), aff’d sub nom. Bellikoff v. Eaton Vance Corp., 481 F.3d 110, 118 (2d Cir. 2007) (per
curiam) (“[P]laintiffs were not entitled to an advisory opinion from the Court informing them of
the deficiencies in the complaint and then an opportunity to cure those deficiencies.”) (internal
quotation marks omitted).
Further, Plaintiff has not asked to amend or suggested that he is in possession of facts that
would cure the deficiencies identified in this Opinion. Accordingly, the Court declines to grant
leave to amend sua sponte. See Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797
F.3d 160, 190 (2d Cir. 2015) (denial of leave to amend would be proper where “request gives no
clue as to how the complaint’s defects would be cured”) (internal quotation marks omitted);
TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 505 (2d Cir. 2014) (plaintiff need not be given
leave to amend if he fails to specify how amendment would cure the pleading deficiencies in his
complaint); Gallop v. Cheney, 642 F.3d 364, 369 (2d Cir. 2011) (“[N]o court can be said to have
erred in failing to grant a request that was not made.”); id. (proper to dismiss with prejudice
where no indication plaintiff could or would provide additional allegations leading to different
result).
24
V.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED. The Clerk of
the Court is respectfully directed to terminate the pending motion, (Doc. 64), enter judgment for
Defendants, and close the case.
SO ORDERED.
Dated: November 18, 2019
White Plains, New York
_____________________________
CATHY SEIBEL, U.S.D.J.
25
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