Fabricio v. Lee et al

Filing 101

OPINION AND ORDER re: 82 MOTION to Dismiss . filed by D. Wilkins, T. Griffin, Hann, Corey, Conforti, Surber, V. Cruz, Murphy, Carry, Valle, C.O. Brokaw, Imposter Inspector General Keiser, Carlson, Bentivegna, Tagliaferry, Miller, O Chavers, J. Erns, Isaac, Chase, E. Burnett, Sullivan, C.O. Phillips, Stanaway, C.O. Lorde-Gray, Rodriguez. The partial motion to dismiss the amended complaint is GRANTED IN PART and DENIED IN PART. The motion to dismiss or for a more definite statement is DENIED. The sole remaining claims in this case are: (i) excessive force against Sgt. Miller, C.O. Chase, C.O. Erns, C.O. Carlson, C.O. Corey, C.O. Phillips C.O. Brokaw, and C.O. Lorde-Gray; and (ii) fail ure to intervene against Sgt. Miller, C.O. Phillips, C.O. Brokaw, and C.O. Lorde-Gray. Defendants shall file an answer by March 20, 2019. The Clerk is instructed to (i) terminate defendants Supt. T. Griffin, Dep. Supt. E. Burnett, Dep. Supt. D. Wilki ns, Capt. Carry, Lt. Hann, Lt. Murphy, Sgt. Surber, Sgt. Rodriguez, Sgt. Conforti, C.O. V. Cruz, C.O. Chavers, C.O. Valle, C.O. Tagliaferry, C.O. Sullivan, I.G. Ortiz, I.G. John Doe, I.G. Isaac, IGRC Supervisor Stanaway, Dr. Bentivegna, and Imposter Inspector General Keyser from the docket, and (ii) terminate the motion. (Doc. #82). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 44445 (1962). Corey answer due 3/20/2019; C.O. Phillips answer due 3/20/2019; Carlson answer due 3/20/2019; Miller answer due 3/20/2019; C.O. Brokaw answer due 3/20/ 2019; Chase answer due 3/20/2019; C.O. Lorde-Gray answer due 3/20/2019; J. Erns answer due 3/20/2019. Carry, O Chavers, Conforti, V. Cruz, T. Griffin, Hann, Imposter Inspector General Keiser, Isaac, John Doe, Murphy, Ortiz, Rodriguez, Stanaway, Sullivan, Surber, Tagliaferry, Valle, D. Wilkins, Bentivegna and E. Burnett terminated. (Signed by Judge Vincent L. Briccetti on 3/6/2019) Copies Mailed By Chambers. (kv)

Copy mailed by Chambers 3-6-19 DH

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------------x
EDERICK FABRICIO,
:
Plaintiff,
:
:
v.
:
:
SUPT. T. GRIFFIN; DEP. SUPT. E. BURNETT; :
DEP. SUPT. D. WILKINS; CAPT. CARRY; LT.
:
HANN; LT. MURPHY; SGT. SURBER; SGT.
:
RODRIGUEZ; SGT. MILLER; SGT.
:
CONFORTI; C.O. V. CRUZ; C.O. O.
:
CHAVERS; C.O. J. ERNS; C.O. CHASE; C.O.
:
VALLE; C.O. TAGLIAFERRY; C.O. COREY;
:
C.O. CARLSON; C.O. PHILLIPS; C.O.
:
BROKAW; C.O. LORDE-GRAY; C.O.
:
SULLIVAN; I.G. ORTIZ; I.G. JOHN DOE; I.G. :
ISAAC; IGRC SUPERVISOR STANAWAY; DR. :
BENTIVEGNA; and IMPOSTER INSPECTOR
:
GENERAL KEYSER,
:
Defendants.
:
--------------------------------------------------------------x

OPINION AND ORDER
16 CV 8731 (VB)

Briccetti, J.:
Plaintiff Ederick Fabricio, proceeding pro se and in forma pauperis, brings claims under
42 U.S.C. § 1983 against twenty-eight defendants: Superintendent (“Supt.”) T. Griffin, Deputy
(“Dep.”) Supt. E. Burnett, Dep. Supt. D. Wilkins, Captain (“Capt.”) Carry, Lieutenant (“Lt.”)
Hann, Lt. Murphy, Sergeant (“Sgt.”) Surber, Sgt. Rodriguez, Sgt. Miller, Sgt. Conforti,
Correction Officer (“C.O.”) V. Cruz, C.O. Chavers, C.O. J. Erns, C.O. Chase, C.O. Valle, C.O.
Tagliaferry, C.O. Corey, C.O. Carlson, C.O. Phillips, C.O. Brokaw, C.O. Lorde-Gray, C.O.
Sullivan, Inspector General (“I.G.”) Ortiz, I.G. John Doe, I.G. Isaac, Inmate Grievance
Resolution Committee (“IGRC”) Supervisor Stanaway, Dr. Bentivegna, and “Imposter Inspector

1

General Keyser.” 1 Liberally construed, plaintiff’s amended complaint asserts (i) Eighth
Amendment claims for use of excessive force, failure to intervene, deliberate indifference to
serious medical needs, and unconstitutional conditions of confinement; (ii) First Amendment
claims for retaliation and denial of access to the courts; and (iii) Fourteenth Amendment claims
for denial of due process and deprivation of property.
Now pending are defendants’ partial motion to dismiss the amended complaint pursuant
to Rule 12(b)(6) and motion to dismiss or for a more definite statement pursuant to Rules 8(a)
and 12(e). (Doc. #82).
For the reasons set forth below, the Rule 12(b)(6) partial motion to dismiss is GRANTED
IN PART and DENIED IN PART. The motion to dismiss or for a more definite statement under
Rules 8(a) and 12(e) is DENIED.
This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.
BACKGROUND
For the purpose of ruling on the motion to dismiss, the Court accepts as true all wellpleaded factual allegations in the amended complaint and draws all reasonable inferences in
plaintiff’s favor, as set forth below.
Plaintiff’s amended complaint is seventy-one pages long, and plaintiff attaches nearly
700 pages of exhibits, many of which are in Spanish. Moreover, the amended complaint consists

1

Plaintiff sued C.O. Tagliaferry as “C.O. Tagliaffery”; Dep. Supt. E. Burnett as “Dep. SS.
E. Burnett”; Dep. Supt. D. Wilkins as “Dep. SS. D. Wilkins”; and IGRC Supervisor Stanaway as
“IGP Stanaway.” Moreover, the Attorney General’s Office was unable to identify I.G. Ortiz,
does not represent I.G. John Doe, and plaintiff disputes that defense counsel correctly identified
“Imposter Inspector General Keyser.” As discussed below, the Court dismisses all claims
against I.G. Ortiz, I.G. John Doe, and “Imposter Inspector General Keyser.” In addition,
although the Attorney General’s Office does not represent I.G. Ortiz, for ease of reference the
Court refers generally to “defendants” throughout this Opinion and Order.
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of numerous unconnected events and involves claims against twenty-eight defendants. The
Court, having thoroughly reviewed these materials, briefly summarizes what seem to be
plaintiff’s primary claims: for excessive force, failure to intervene, and retaliation. The Court
summarizes plaintiff’s other allegations where relevant in the ensuing discussion section.
At all relevant times, plaintiff was an inmate at Green Haven Correctional Facility
(“Green Haven”).
I.

“Imposter Inspector General Keyser”
Plaintiff alleges at some point between May 12 and June 11, 2014, a person who

identified himself as Inspector General Keyser interrogated plaintiff regarding whether
correction officers were bringing drugs into Green Haven. This apparently occurred shortly after
drugs were found in plaintiff’s cell. Moreover, the Court infers from the amended complaint that
plaintiff alleges the interrogation was in connection with an investigation into C.O. V. Cruz, for
whom plaintiff had been a porter. According to the amended complaint, on August 22, 2014,
C.O. V. Cruz was arrested and charged with criminal possession of marijuana and official
misconduct, among other things.
Plaintiff believes the person who interrogated him was not an inspector general. Plaintiff
calls this person “Imposter Inspector General Keyser.” (See, e.g., Docs. ##15, 15-1, 15-2 (“Am.
Compl.”) ¶ 55). According to plaintiff, his interrogator did not show any identification, did not
know about a disciplinary hearing involving plaintiff, and did not have a copy of a relevant
misbehavior report; yet this interrogator knew such details as the number and milligrams of pills
found in plaintiff’s cell.
Plaintiff alleges he again encountered the so-called Inspector General Keyser on
November 5, 2014, and accused him of framing plaintiff, seemingly in connection with the

3

discovery of drugs in plaintiff’s cell. Plaintiff also alleges he observed the “Imposter Inspector
General Keyser” interrogating another inmate on January 15, 2015.
Plaintiff alleges on January 30, 2015, he told defendant I.G. Isaac about “Imposter
Inspector General Keyser.” (Am. Compl. ¶ 173). Plaintiff also alleges he complained about the
imposter inspector general to several Green Haven staff and correction officers, including Supt.
T. Griffin, in person, at disciplinary hearings, by filing grievances, and by sending letters to the
staff.
Plaintiff alleges defendants retaliated against him for these complaints. Among other
things, plaintiff alleges defendants filed false misbehavior reports, provided false testimony at
disciplinary hearings, and assaulted him on February 10, 2015.
II.

Alleged February 10, 2015, Assault
Plaintiff alleges on February 10, 2015, he was talking with another inmate while waiting

for an escort to retrieve him from his cell to get his pain medication. C.O. Chase, after speaking
with other unnamed officers, told plaintiff to put his hands on the wall to be searched. Plaintiff
did as he was told. According to plaintiff, “C.O. Chase lift the Plaintiff from between his legs
and slam the Plaintiff on the floor.” (Am. Compl. ¶ 195). C.O. Chase then covered plaintiff’s
face with his body while unspecified defendants hit plaintiff with sticks, kicked him, and
punched him. Plaintiff alleges C.O. Erns then put something in plaintiff’s hand, “took it out of
his hand real quick,” and started screaming that plaintiff had a weapon in his hand. (Id. ¶ 197).
Defendants then handcuffed plaintiff and pushed him against a wall, and C.O. Carlson started to
slam plaintiff’s face against the wall, kneed plaintiff in his knee, thigh, and right ribs, and told
plaintiff to “shut the fuck up.” (Id. ¶ 199). Plaintiff states he recognized C.O. Chase, C.O. Erns,

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C.O. Carlson, C.O. Corey, C.O. Phillips, C.O. Brokaw, C.O. Lorde-Gray, and Sgt. Miller, but
there were additional officers as well.
Plaintiff also alleges that while C.O. Corey was escorting plaintiff to the Special Housing
Unit (“SHU”), he slammed plaintiff against the “East side control office” and the gate next to the
control office. (Am. Compl. ¶ 202).
Plaintiff alleges that despite the injuries he sustained as a result of the February 10, 2015,
assault, and the fact that he defecated on himself, he was not taken to the medical clinic. A nurse
allegedly took some information, told plaintiff to write a brief statement, gave plaintiff some
bacitracin, and left. 2
DISCUSSION
I.

Standard of Review
In deciding a Rule 12(b)(6) motion, the Court evaluates the sufficiency of the operative

complaint under the “two-pronged approach” articulated by the Supreme Court in Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009). First, plaintiffs’ legal conclusions and “[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory statements,” are not entitled to
the assumption of truth and are thus not sufficient to withstand a motion to dismiss. Id. at 678;
Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). Second, “[w]hen there are well-pleaded
factual allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. at 679.

2

Defendants are not moving to dismiss plaintiff’s excessive force claims against C.O.
Chase, C.O. Erns, C.O. Carlson, C.O. Corey, C.O. Phillips, C.O. Brokaw, and C.O. Lorde-Gray.
In addition, it is unclear whether plaintiff alleges Sgt. Miller to have participated in the alleged
assault or was merely present and failed to intervene. Therefore, the Court construes plaintiff’s
amended complaint to assert an excessive force claim against Sgt. Miller in the alternative to
plaintiff’s failure to intervene claim, for the reasons stated in the ensuing section.
5

To survive a Rule 12(b)(6) motion, the allegations in the complaint must meet a standard
of “plausibility.” Ashcroft v. Iqbal, 556 U.S. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544,
564 (2007). A claim is facially plausible “when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 556).
The Court must liberally construe submissions of pro se litigants, and interpret them “to
raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d
471, 474 (2d Cir. 2006) (per curiam) (internal quotation marks and citation omitted). Applying
the pleading rules permissively is particularly appropriate when, as here, a pro se plaintiff alleges
civil rights violations. See Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir.
2008). “Even in a pro se case, however . . . threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Chavis v. Chappius, 618 F.3d
162, 170 (2d Cir. 2010) (internal quotation marks and citation omitted). Nor may the Court
“invent factual allegations” plaintiff has not pleaded. Id.
II.

Eighth Amendment Claims
Liberally construed, plaintiff’s amended complaint asserts three categories of Eighth

Amendment claims, in addition to the excessive force claims not challenged in the instant
motion: (i) failure to intervene to prevent the February 10, 2015, assault, against twenty-two
defendants; (ii) deliberate indifference to serious medical needs against Dr. Bentivegna; and
(iii) unconstitutional conditions of confinement against unnamed correction officers and C.O.
Sullivan.

6

Except for plaintiff’s failure to intervene claims against Sgt. Miller, C.O. Phillips, C.O.
Brokaw, and C.O. Lorde-Gray, and his excessive force claims not challenged in this motion,
plaintiff’s Eighth Amendment claims fail.
A.

Failure to Intervene

Plaintiff states failure to intervene claims against Sgt. Miller, C.O. Phillips, C.O. Brokaw,
and C.O. Lorde-Gray, in the alternative to his excessive force claims against them. However,
plaintiff fails to state failure to intervene claims against the other eighteen defendants: Sgt.
Surber, Lt. Hann, Lt. Murphy, Capt. Carry, Dep. Supt. D. Wilkins, Supt. T. Griffin, IGRC
Supervisor Stanaway, I.G. Ortiz, I.G. Isaac, I.G. John Doe, “Impostor Inspector General
Keyser,” Dep. Supt. E. Burnett, Sgt. Rodriguez, Sgt. Conforti, C.O. V. Cruz, C.O. O. Chavers,
C.O. Valle, and C.O. Tagliaferry.
“[A]ll law enforcement officials have an affirmative duty to intervene to protect the
constitutional rights of citizens from infringement by other law enforcement officers in their
presence.” Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994) (internal citations omitted).
“Failure to intercede results in liability where an officer observes excessive force is being used or
has reason to know that it will be.” Jean-Laurent v. Wilkerson, 461 F. App’x 18, 21 (2d Cir.
2012) (summary order) (citing Curley v. Village of Suffern, 268 F.3d 65, 72 (2d Cir. 2001)). 3
“However, ‘in order for liability to attach, there must have been a realistic opportunity to
intervene to prevent the harm from occurring.’” Id. (alterations omitted) (citing Anderson v.
Branen, 17 F.3d at 557). Claims for excessive force and failure to intervene to prevent the use of

3

Plaintiff will be provided copies of all unpublished opinions cited in this
decision. See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009).
7

excessive force may proceed simultaneously in the alternative. See Cumberbatch v. Port Auth.
of N.Y. and N.J., 2006 WL 3543670, at *11 (S.D.N.Y. Dec. 5, 2006).
Plaintiff pleads sufficient facts to state failure to intervene claims against Sgt. Miller,
C.O. Phillips, C.O. Brokaw, and C.O. Lorde-Gray, in the alternative to his excessive force claims
against them. Plaintiff alleges he saw these defendants while other correction officers assaulted
him on February 10, 2015. It is unclear from plaintiff’s amended complaint whether plaintiff
alleges they participated in the alleged assault or failed to intervene to prevent other correction
officers’ use of excessive force. However, it is clear plaintiff alleges they were present when he
was assaulted. Combined with plaintiff’s specific allegations regarding the nature of the assault,
plaintiff’s allegations of these officers’ immediate presence are sufficient to state an alternative
failure to intervene claim. 4
On the other hand, plaintiff has not alleged any facts suggesting the other eighteen
defendants observed or were present for the February 10, 2015, assault, knew or had reason to
know plaintiff would be assaulted, or had an opportunity to intervene to prevent harm to
plaintiff. Therefore, plaintiff fails to state failure to intervene claims against the remaining
eighteen defendants.
Defendants Sgt. Miller, C.O. Phillips, C.O. Brokaw, and C.O. Lorde-Gray assert they are
entitled to qualified immunity on plaintiff’s failure to intervene claims.
The Court disagrees.

4

As for C.O. Chase, C.O. Erns, C.O. Carlson, and C.O. Corey, plaintiff makes specific
factual allegations that they assaulted him. Therefore, the Court construes plaintiff’s amended
complaint only to assert excessive force claims—not failure to intervene claims—against those
defendants.
8

Qualified immunity shields government officials whose conduct “does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (internal citations omitted). The scope of
qualified immunity is broad, and it protects “all but the plainly incompetent or those who
knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
“The issues on qualified immunity are: (1) whether plaintiff has shown facts making out
violation of a constitutional right; (2) if so, whether that right was ‘clearly established;’ and
(3) even if the right was ‘clearly established,’ whether it was ‘objectively reasonable’ for the
officer to believe the conduct at issue was lawful.” Gonzalez v. City of Schenectady, 728 F.3d
149, 154 (2d Cir. 2013) (quoting Taravella v. Town of Wolcott, 599 F.3d 129, 133–34 (2d Cir.
2010)). “[U]sually, the defense of qualified immunity cannot support the grant of a Rule 12(b)(6)
motion for failure to state a claim upon which relief can be granted.” Hyman v. Abrams, 630 F.
App’x 40, 42 (2d Cir. 2015) (summary order).
Here, plaintiff sufficiently has alleged defendants violated his Eighth Amendment rights,
which were clearly established at the time, and it was not objectively reasonable for defendants
to believe they could lawfully violate those rights. Accordingly, dismissing plaintiff’s failure to
intervene claims at this stage of the case based on qualified immunity is inappropriate. However,
this is an issue that may be reviewed at summary judgment after the completion of discovery.
Accordingly, plaintiff’s failure to intervene claims against Sgt. Miller, C.O. Phillips, C.O.
Brokaw, and C.O. Lorde-Gray may proceed. Plaintiff’s failure to intervene claims are dismissed
as to the remaining eighteen defendants.

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B.

Deliberate Indifference to Serious Medical Needs

Plaintiff fails to state claims against Dr. Bentivegna for deliberate indifference to serious
medical needs.
A claim for deliberate indifference brought by a convicted prisoner is analyzed under the
Eighth Amendment. See Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017). To state an Eighth
Amendment claim for deliberate indifference, a plaintiff’s allegations must satisfy an objective
prong and a mens rea prong. Thus, to assert a claim for deliberate indifference to medical needs
under the Eighth Amendment, plaintiff must plead facts alleging (i) a “sufficiently serious”
deprivation of medical care, and (ii) the officials in question acted with a “sufficiently culpable
state of mind.” Salahuddin v. Goord, 467 F.3d 263, 279–80 (2d Cir. 2006).
The objective component has two subparts. “The first inquiry is whether the prisoner
was actually deprived of adequate medical care,” keeping in mind that only “reasonable care” is
required. Salahuddin v. Goord, 467 F.3d at 279 (citing Farmer v. Brennan, 511 U.S. 825, 845–
47 (1970)). “Second, the objective test asks whether the inadequacy in medical care is
sufficiently serious” by examining “how the offending conduct is inadequate and what harm, if
any, the inadequacy has caused or will likely cause the prisoner.” Id. at 280 (citing Helling v.
McKinney, 509 U.S. 25, 32–33 (1993)).
The mens rea component requires a showing that defendants were aware of plaintiff’s
serious medical needs and consciously disregarded a substantial risk of serious harm.
Salahuddin v. Goord, 467 F.3d at 280. “[T]he charged official must act with a sufficiently
culpable state of mind.” Id. (citing Wilson v. Seiter, 501 U.S. 294, 300 (1991)). “To satisfy this
prong of the deliberate indifference test, a plaintiff must allege only that the defendant was
‘aware of facts’ from which one could infer that ‘a substantial risk of serious harm’ existed, and

10

that the defendant actually drew that inference.” Dotson v. Fischer, 613 F. App’x 35, 38–39 (2d
Cir. 2015) (summary order) (citing Farmer v. Brennan, 511 U.S. at 837). However, it is well
established that “negligence, even if it constitutes medical malpractice, does not, without more,”
give rise to a constitutional claim. Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998).
Moreover, “disagreements over medications, diagnostic techniques (e.g., the need for X-rays),
forms of treatment, or the need for specialists or the timing of their intervention, are not adequate
grounds for a Section 1983 claim.” Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F.
Supp. 2d 303, 312 (S.D.N.Y. 2001).
Here, plaintiff brings deliberate indifference claims to his serious medical needs based on
two incidents. First, plaintiff alleges on March 6, 2015, he asked defendant Dr. Bentivegna why
he had stopped giving plaintiff pain medication. Dr. Bentivegna responded that the medication
was not working for plaintiff, which plaintiff contends was a lie. Second, plaintiff alleges at
some point in early 2015 after the alleged February 10, 2015, assault, plaintiff asked for x-rays
on his back and knees and did not receive them.
Plaintiff’s allegations do not satisfy the objective component because plaintiff fails to
allege what harm he suffered, if any, from the failure to receive pain medication or x-rays.
Indeed, plaintiff’s claim regarding his pain medication constitutes a mere disagreement over the
type of treatment he received. Plaintiff also does not allege that Dr. Bentivegna acted with
sufficient mens rea regarding either incident. Plaintiff fails to allege that Dr. Bentivegna was
aware of and inferred a substantial risk of harm from rescinding plaintiff’s pain medication
prescription or denying plaintiff the opportunity to receive x-rays.
Accordingly, plaintiff’s deliberate indifference to serious medical needs claims against
Dr. Bentivegna are dismissed.

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C.

Conditions of Confinement

Plaintiff also fails to state unconstitutional conditions of confinement claims against
unnamed correction officers or C.O. Sullivan.
To satisfy the objective requirement of a deliberate indifference claim based on
unconstitutional conditions of confinement, “the inmate must show that the conditions, either
alone or in combination, pose an unreasonable risk of serious damage to his health.” Walker v.
Schult, 717 F.3d 119, 125 (2d Cir. 2013) (internal citations omitted)). Plaintiff must allege
prison officials deprived him “of his ‘basic human needs’ such as food, clothing, medical care,
and safe and sanitary living conditions.” Id. (internal citations omitted).
With respect to the mens rea requirement:
[A] prison official cannot be found liable under the Eighth Amendment for denying
an inmate humane conditions of confinement unless the official knows of and
disregards an excessive risk to inmate health or safety; the official must both be
aware of facts from which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference. This “deliberate
indifference” element is equivalent to the familiar standard of “recklessness” as
used in criminal law.
Phelps v. Kapnolas, 308 F.3d 180, 185–86 (2d Cir. 2002) (internal citation omitted).
Plaintiff alleges two incidents that relate to potential claims for unconstitutional
conditions of confinement. First, plaintiff alleges between late April and May 2014, he was
given a new job, and for one night was required to stay in a room with no toilet, no sink, a
stretcher for sleeping, and an ice machine making loud noises. Plaintiff calls it a “cage” that he
had to stay in overnight. (Am. Compl. ¶ 36). Second, plaintiff alleges on March 7, 2015, C.O.
Sullivan opened all of the windows, presumably in plaintiff’s cell, “knowing that it was freezing
outside.” (Id. ¶ 213).

12

Plaintiff’s allegations fail to satisfy either the objective or mens rea prong, as plaintiff
does not allege an unreasonable risk of serious damage to his health, or that any prison official,
including C.O. Sullivan, was aware of a risk of serious harm to plaintiff.
Accordingly, plaintiff’s conditions of confinement claims against C.O. Sullivan and
unnamed correction officers are dismissed.
III.

First Amendment Claims
A.

Retaliation

Plaintiff asserts First Amendment retaliation claims against all defendants. Plaintiff’s
allegations are insufficient to state a claim.
To adequately plead a First Amendment retaliation claim, plaintiff must allege (i) he
engaged in constitutionally protected speech or conduct; (ii) a defendant took adverse action
against him; and (iii) the protected speech and adverse action are causally connected. Dolan v.
Connolly, 794 F.3d 290, 294 (2d Cir. 2015). Courts approach prisoners’ 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 (quoting Davis v.
Goord, 320 F.3d 346, 352 (2d Cir. 2003)). Accordingly, a prisoner pursuing a retaliation claim
must not rest on “wholly conclusory” allegations, but rather must allege “specific and detailed”
supporting facts. Id.
Regarding the first element, “[i]t is well-established that ‘retaliation against a prisoner for
pursuing a grievance violates the right to petition government for the redress of grievances’ and
is therefore actionable under Section 1983.” Edwards v. Horn, 2012 WL 760172, at *14

13

(S.D.N.Y. Mar. 8, 2012) (citing Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996)) (adopting
report and recommendation).
To satisfy the second element, an inmate must allege “retaliatory conduct that would
deter a similarly situated individual of ordinary firmness from exercising . . . constitutional
rights.” Edwards v. Horn, 2012 WL 760172, at *14 (quoting Gill v. Pidlypchak, 389 F.3d 379,
381 (2d Cir. 2004)). An inmate may allege either a serious injury or “that he has been chilled
from engaging in the First Amendment activities that triggered the retaliation.” Id. (quoting
Smith v. Maypes–Rhynders, 2009 WL 874439, at *4 (S.D.N.Y. Mar. 31, 2009)). “Although
filing a false misbehavior report is not itself a constitutional violation, it may constitute an
adverse action for purposes of a retaliation claim.” Mateo v. Bristow, 2013 WL 3863865, at *5
(S.D.N.Y. July 16, 2013) (internal citations omitted).
As for the third element, plaintiff’s allegations “must support an inference that the
protected conduct was “a substantial or motivating factor for the adverse actions taken by prison
officials.” Dorsey v. Fisher, 468 F. App’x 25, 27 (2d Cir. 2012) (summary order) (internal
citation omitted). “Courts may infer a retaliatory motive from a variety of factors, including the
timing of the report, and the report’s falsity.” Mateo v. Bristow, 2013 WL 3863865, at *6
(internal citations omitted).
Plaintiff’s retaliation claims fail because plaintiff does not allege sufficient facts to
suggest a causal connection. Except for the timing of the alleged retaliatory acts, plaintiff’s
allegations are entirely conclusory: plaintiff merely alleges he repeatedly told defendants he
believed he was being retaliated against. (See, e.g., Am. Compl. ¶ 173 (alleging plaintiff told
I.G. Isaac “about the Defendant Imposter Inspector General Keyser and what was happening
with him at the facility”), ¶ 182 (alleging plaintiff said at a hearing that he was being retaliated

14

against “because he recognice [sic] that between May 12 – June 11, 2014 that administration
used a employee of that facility to play the role of a Inspector General to interrogate him while
he was in S.H.U.”)). However, plaintiff’s alleged statements to defendants are themselves mere
conclusory allegations. Plaintiff cannot circumvent the requirement for “specific and detailed”
factual allegations by recounting previously-made conclusory allegations. Dolan v. Connolly,
794 F.3d at 295.
Further, plaintiff does not allege any reason why defendants would retaliate against him
for asserting there was a person posing as an inspector general. Cf. Dorsey v. Fisher, 468 F.
App’x at 27 (affirming dismissal of retaliation claim when plaintiff did not provide “any
plausible reason why [defendant] would file an allegedly false misbehavior report other than that
[plaintiff] filed a grievance against” another officer). Nor does plaintiff allege any
“corroborating statements from other officers or inmates” that would support an inference that
defendants retaliated against him. Edwards v. Horn, 2012 WL 760172, at *18.
Plaintiff also claims defendants retaliated against him to prevent him from being a
witness in the investigation of C.O. V. Cruz, for whom he had been a porter. Plaintiff’s only
nonconclusory allegation to support this claim is that C.O. Valle called him snitch and other
names. But C.O. Valle’s name-calling does not constitute an adverse action. See Edwards v.
Horn, 2012 WL 760172, at *15 (“While some verbal threats, even if not serious enough to
implicate the Eighth Amendment, can constitute an adverse action, non-specific verbal threats,
harassing comments and hostile behavior do not constitute adverse actions sufficient to state a
retaliation claim.”) (internal quotation and alterations omitted).
Moreover, plaintiff alleges only that C.O. Valle and defendants attempted to “prevent”
plaintiff from testifying. (See, e.g., Am. Compl. ¶ 262). However, allegations of preventative

15

action are not actionable as a First Amendment retaliation claim. See Davis v. Jackson, 2016
WL 5720811, at *9 (S.D.N.Y. Sept. 30, 2016) (“[T]here is no First Amendment cause of action
for anticipatory retaliation.”) (citing Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009)).
Accordingly, plaintiff fails to state First Amendment retaliation claims against any
defendant.
B.

Denial of Access to the Courts

To the extent plaintiff asserts a claim against IGRC Supervisor Stanaway for failure to
file grievances, the Court construes this as a denial of access to the courts claim, which the Court
dismisses.
To state a claim for denial of access to the courts, “a plaintiff must allege that the
defendant took or was responsible for actions that hindered [a plaintiff’s] efforts to pursue a legal
claim.” Davis v. Goord, 320 F.3d at 351 (alterations in original) (internal quotation omitted).
Notwithstanding the First Amendment’s guarantee of the right to petition the government for
redress, “inmate grievance procedures are not required by the Constitution and therefore a
violation of such procedures does not give rise to a claim under [Section] 1983.” Cancel v.
Goord, 2001 WL 303713, at *3 (S.D.N.Y. Mar. 29, 2001).
Plaintiff fails to allege he was hindered in his effort to pursue a legal claim. Accordingly,
plaintiff’s First Amendment claim against IGRC Supervisor Stanaway for denial of access to the
courts is dismissed.
IV.

Due Process
A.

Disciplinary Hearings and Misbehavior Reports

Plaintiff also fails to state claims for violation of due process against Dep. Supt. D.
Wilkins, Lt. Hann., Lt. Murphy, or Supt. T. Griffin.

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Procedural due process requires “that a deprivation of life, liberty, or property be
preceded by notice and opportunity for hearing appropriate to the nature of the case.” Chase
Grp. Alliance LLC v. City of N.Y. Dep’t of Fin., 620 F.3d 146, 150 (2d Cir. 2010) (quoting
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985)). Thus, to sustain a Section
1983 claim based on an alleged violation of due process, a plaintiff must allege (i) he possesses a
liberty or property interest protected by the Constitution or federal statutes, and (ii) he was
deprived of that liberty or property interest without due process. Ciambriello v. County of
Nassau, 292 F.3d 307, 313 (2d Cir. 2002).
As to the first element, “[a] prisoner’s liberty interest is implicated by prison discipline,
such as SHU confinement, only if the discipline imposes an atypical and significant hardship on
the inmate in relation to the ordinary incidents of prison life.” Palmer v. Richards, 364 F.3d 60,
64 (2d Cir. 2004) (internal quotation and alteration omitted). Although there is no bright-line
rule for establishing when keep lock confinement rises to the level of a constitutional violation,
courts consider both the duration and the conditions of confinement. See id. In assessing
duration, “restrictive confinements of less than 101 days do not generally raise a liberty interest
warranting due process protection, and thus require proof of conditions more onerous than
usual.” Davis v. Barrett, 576 F.3d 129, 133 (2d Cir. 2009).
Regarding the second element, when an inmate’s liberty interest is implicated, “[b]ecause
prison disciplinary proceedings are not part of a criminal prosecution, . . . the full panoply of
rights due a defendant in such proceedings does not apply.” Williams v. Menifee, 331 F. App’x
59, 60 (2d Cir. 2009) (summary order) (internal quotation and alteration omitted). The
procedural due process afforded to a prisoner charged with a violation in a disciplinary
proceeding consists of: “advance written notice of the charges against him; a hearing affording

17

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 actions taken.” Sira v. Morton, 380 F.3d 57, 69 (2d Cir.
2004) (internal citations omitted). The hearing disposition must be supported by “some evidence
in the record.” Colon v. Annucci, 344 F. Supp. 3d 612, 636 (S.D.N.Y. 2018) (quoting Sira v.
Morton, 380 F.3d at 75).
Further, “a prison inmate has no general constitutional right to be free from being falsely
accused in a misbehavior report.” Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997) (citing
Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986)). “There must be more, such as retaliation
against the prisoner for exercising a constitutional right.” Id. (citing Franco v. Kelly, 854 F.2d
584, 588–90 (2d Cir. 1988)). “This principle extends as well to false testimony by corrections
personnel at prison disciplinary hearings.” Thomas v. Calero, 824 F. Supp. 2d 488, 499
(S.D.N.Y. 2011) (adopting report and recommendation).
Plaintiff alleges he was involved in five improper disciplinary hearings: on (i) January
15, 2015, before Lt. Hann; (ii) January 17, 2015, before Lt. Murphy; (iii) January 25, 2015,
before Lt. Hann; (iv) February 4, 2015, before Lt. Murphy; and (v) April 17, 2015, before Dep.
Supt. D. Wilkins. Plaintiff alleges Lt. Hann, Lt. Murphy, and Dep. Supt. D. Wilkins were
biased, allowed the introduction of false statements at all of the hearings, and found plaintiff
guilty because of their institutional and departmental loyalty. In addition, plaintiff alleges Lt.
Hann and Dep. Supt. D. Wilkins refused to allow plaintiff to call witnesses at the January 25,
2015, and April 17, 2015, hearings.
Plaintiff’s claims based on alleged due process violations at his January 15, 17, and 25,
and February 4, 2015, hearings fail because plaintiff alleges he was sentenced to only thirty days

18

keep lock at each hearing, and plaintiff does not allege that his conditions in the SHU following
the hearings were more onerous than usual. See, e.g., Colon v. Annucci, 344 F. Supp. 3d at
633–34 (collecting cases).
Plaintiff also fails to state a claim for due process violations at his April 17, 2015,
hearing. Plaintiff makes only conclusory allegations that Dep. Supt. D. Wilkins was biased and
refused to call witnesses. Further, plaintiff attached to his amended complaint a hearing record
sheet that shows: (i) plaintiff received advanced notice of the charges against him; (ii) plaintiff
was permitted to call seven witnesses; (iii) the hearing disposition was supported by at least
some evidence in the record, as the hearing officer relied upon, among other things, the
testimony of “[n]umerous” staff and inmate witnesses, whom plaintiff was allowed to question;
and (iv) plaintiff received a written statement of the disposition, including the evidence relied
upon and the reasons for the disciplinary actions taken. (Doc. #15-13 at 2–4). 5 Moreover,
plaintiff fails to suggest he was not provided a reasonable opportunity to call witnesses, because
plaintiff “alleges no facts suggesting that the excluded witnesses would have provided additional
or unique testimony that would not have been redundant and instead would have bolstered his
defense.” Colon v. Annucci, 344 F. Supp. 3d at 636.
In addition, plaintiff’s allegations that he was falsely accused in misbehavior reports and
in testimony at disciplinary hearings are insufficient to support a due process claim, as a prison
inmate has no general right to be free from being falsely accused in misbehavior reports or at
disciplinary hearings. See Thomas v. Calero, 824 F. Supp. 2d at 499. And to the extent plaintiff

5

“Doc. #__ at __” refers to page numbers automatically assigned by the Court’s Electronic
Case Filing system.
19

alleges the false testimony and misbehavior reports were in retaliation for protected speech or
conduct, those claims fail for the reasons discussed above.
Accordingly, plaintiff fails to state due process claims.
B.

Deprivation of Property

Plaintiff alleges several incidents which, liberally construed, indicate plaintiff intends to
assert claims based on the deprivation of his property:
•

On a morning between May 12 and June 11, 2014, plaintiff told Sgt. Rodriguez that
Sgt. Rodriguez’s officers had stolen some packs of cigarettes from plaintiff’s cell.

•

In October 2014, a sergeant took plaintiff’s belt.

•

On November 9, 2014, plaintiff’s brother visited, and told plaintiff that he had left
him two bags of candy in the package room. Plaintiff went to pick up his packages,
but the correction officer said there was only one bag for plaintiff, and said that was
all they had. Eight days later, on November 17, 2014, plaintiff went to pick up the
bag of candy, but the correction officer told him he could not have it. Plaintiff
asked the correction officer to call the package room sergeant. Plaintiff was taken
to his cell and put on keep lock.

•

On December 1, 2014, C.O. Valle took plaintiff’s radio.

•

On January 18, 2015, C.O. Erns searched plaintiff’s property and “took a lot of
clothes” from plaintiff. (Am. Compl. ¶ 162).

•

On February 5, 2015, a correction officer took two personal sheets from plaintiff.

“[A]n 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 postdeprivation remedy for the loss is available.” Hudson v.
Palmer, 468 U.S. 517, 533 (1984). Here, such a remedy was available to plaintiff in the form of
an action in the New York State Court of Claims, but apparently was not pursued. See Davis v.
New York, 311 F. App’x 397, 400 (2d Cir. 2009) (summary order) (Court of Claims action is
adequate postdeprivation remedy, precludes prisoner’s due process claim for lost personal
property).
20

Accordingly, plaintiff’s due process claims for alleged deprivation of property are
dismissed.
V.

Superintendent T. Griffin
Plaintiff’s claims against Supt. Griffin are dismissed for lack of personal involvement.
To state a Section 1983 claim, plaintiff must allege defendants’ personal involvement in

an alleged deprivation of plaintiff’s constitutional rights. See Spavone v. N.Y. State Dep’t of
Corr. Servs., 719 F.3d 127, 135 (2d Cir. 2013). In other words, plaintiff “must plead that each
Government-official defendant, through the official’s own individual actions, has violated the
Constitution.” Ashcroft v. Iqbal, 556 U.S. at 676.
A defendant may not be held liable under Section 1983 solely because that defendant
employs or supervises someone who violated the plaintiff’s rights. Ashcroft v. Iqbal, 556 U.S. at
676. However, a supervisor’s personal involvement may be established by showing:
(1) the defendant participated directly in the alleged constitutional violation, (2) the
defendant, after being informed of the violation through a report or appeal, failed
to remedy the wrong, (3) the defendant created a policy or custom under which
unconstitutional practices occurred, or allowed the continuance of such a policy or
custom, (4) the defendant was grossly negligent in supervising subordinates who
committed the wrongful acts, or (5) the defendant exhibited deliberate indifference
to the rights of inmates by failing to act on information indicating that
unconstitutional acts were occurring.
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (internal quotation omitted). “[A]n alleged
constitutional violation complained of in a grievance must be ongoing in order to find personal
involvement, such that the supervisory official who reviews the grievance can remedy it
directly.” Allah v. Annucci, 2018 WL 4571679, at *7 (S.D.N.Y. Sept. 24, 2018) (internal
quotation omitted) (collecting cases).

21

Here, the only claims remaining in this case are plaintiff’s excessive force and failure to
intervene claims arising from the alleged February 10, 2015, assault. Plaintiff fails to allege
those claims involved ongoing violations when he complained to Supt. T. Griffin.
Accordingly, plaintiff’s claims against Supt. T. Griffin are dismissed. 6
VI.

Motion to Strike
Defendants’ motion to dismiss or for a more definite statement under Rules 8(a) and

12(e) is denied.
“[T]he basic requirements of Rule 8 apply to self-represented and counseled plaintiffs
alike.” Harnage v. Lightner, 2019 WL 637975, at *2 (2d Cir. Feb. 15, 2019) (per curiam)
(internal quotation omitted). Rule 8(a)(2) states a pleading must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” “To satisfy this standard,
the complaint must at a minimum disclose sufficient information to permit the defendant to have
a fair understanding of what the plaintiff is complaining about and to know whether there is a
legal basis for recovery.” Harnage v. Lightner, 2019 WL 637975, at *2 (internal quotation
omitted).
“When a complaint does not comply with the requirement that it be short and plain, the
court has the power, on its own initiative or in response to a motion by the defendant, to strike
any portions that are redundant or immaterial, or to dismiss the complaint.” Harnage v. Lightner,
2019 WL 637975, at *2 (internal quotation omitted). But “dismissal is usually reserved for those
cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that
its true substance, if any, is well disguised.” Id. (internal quotation and alteration omitted).

6

To the extent plaintiff asserts claims against Capt. Carry because he received plaintiff’s
grievances, those claims are dismissed for the same reason.
22

Nevertheless, courts have dismissed pleadings in similar or less egregious circumstances to those
in this case. See Grimes v. Fremont General Corp., 933 F. Supp. 2d 585, 595 (S.D.N.Y. Mar. 22,
2013) (internal quotation omitted) (collecting cases).
Although the amended complaint is, as noted above, difficult to decipher, the Court
concludes it is sufficient to permit defendants to have a fair understanding of what plaintiff is
complaining about and whether there are legal bases for recovery, as the foregoing analysis
demonstrates. Plaintiff “identifies discrete defendants and the actions taken by these defendants”
that purportedly violated his rights. Harnage v. Lightner, 2019 WL 637975, at *2. Further,
requiring plaintiff at this stage of the litigation to amend his complaint for a second time to
provide a more definite statement would only further delay resolution of this two-year-old case,
and thus would not serve the “just, speedy, and inexpensive determination” of this action. Fed.
R. Civ. P. 1.
Accordingly, the Court will not dismiss or strike plaintiff’s amended complaint under
Rules 8(a) or 12(e), or require plaintiff to file a more definite statement.

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CONCLUSION
The partial motion to dismiss the amended complaint is GRANTED IN PART and
DENIED IN PART. The motion to dismiss or for a more definite statement is DENIED.
The sole remaining claims in this case are: (i) excessive force against Sgt. Miller, C.O.
Chase, C.O. Erns, C.O. Carlson, C.O. Corey, C.O. Phillips C.O. Brokaw, and C.O. Lorde-Gray;
and (ii) failure to intervene against Sgt. Miller, C.O. Phillips, C.O. Brokaw, and C.O. LordeGray.
Defendants shall file an answer by March 20, 2019.
The Clerk is instructed to (i) terminate defendants Supt. T. Griffin, Dep. Supt. E. Burnett,
Dep. Supt. D. Wilkins, Capt. Carry, Lt. Hann, Lt. Murphy, Sgt. Surber, Sgt. Rodriguez, Sgt.
Conforti, C.O. V. Cruz, C.O. Chavers, C.O. Valle, C.O. Tagliaferry, C.O. Sullivan, I.G. Ortiz,
I.G. John Doe, I.G. Isaac, IGRC Supervisor Stanaway, Dr. Bentivegna, and Imposter Inspector
General Keyser from the docket, and (ii) terminate the motion. (Doc. #82).
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order
would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose
of an appeal. See Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
Dated: March 6, 2019
White Plains, NY
SO ORDERED:

____________________________
Vincent L. Briccetti
United States District Judge

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