Brown v. Department of Correctional Services of New York State et al
Filing
146
DECISION AND ORDER DENYING Plaintiff's 114 Motion for Summary Judgment; GRANTING in part and DENYING in part Defendants' 119 Cross-Motion for Summary Judgment; DISMISSING the Amended Complaint with respect to all Defendants except Daniel Chapman, Mark DeBurgomaster, and Timothy Gilboy. Signed by William M. Skretny, Chief Judge on 3/2/2013. (CLERK TO FOLLOW UP.) (MEAL)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
GENEO BROWN,
Plaintiff,
v.
DECISION AND ORDER
09-CV-949S
DEPARTMENT OF CORRECTIONAL SERVICES
OF NEW YORK STATE, NYS OFFICE OF
MENTAL HEALTH, BRIAN FISCHER,
Commissioner, LUCIEN J. LeCLAIRE, Dep. Com. of
Corr., DAVID NAPOLI, Superintendent Southport
C.F., MARSHAL TRABOUT, R.M.D., MARILYN
BRIDGE, DSA of Southport C.F., DR. JOSEPH
HALUSKA, J. ANTONSEN, Dep. Supt. of Health
Services, HENDERSON, N.A., DAVID CHAPMAN,
Corr. Sgt., C.O. GILBOY, Corr. Officer
DEBURGOMASTER, ESCROW, Hearing Officer, J.
COLVIN, D.S.S., DONALD SELSKY, Comm.
Designee,
Defendants.
I. INTRODUCTION
Plaintiff Geneo Brown, proceeding pro se and in forma pauperis, commenced this
action pursuant to, inter alia, 42 U.S.C. § 1983, alleging that while he was incarcerated at
Southport Correctional Facility, Defendants subjected him to cruel and unusual punishment
in violation of the Eighth Amendment, retaliated against him for filing grievances in violation
of his First Amendment rights, and deprived him of his due process rights in violation of the
Fourteenth Amendment. Pending before this Court are the Summary Judgment Motions
of Plaintiff and Defendants. This Court finds the matter fully briefed and oral argument
unnecessary. For the reasons discussed below, Plaintiff’s motion should be denied in its
entirety, and Defendants’ cross-motion is granted in part and denied in part.
1
II. BACKGROUND
At all time relevant to his complaint, Plaintiff was an inmate in the custody of the
New York State Department of Corrections and Community Services (“DOCCS”)
incarcerated at Southport Correctional Facility. (Complaint, Docket No. 1, at 1-2). He
commenced this action in November 2009, asserting four causes of action alleging that he
was deprived of his constitutional rights in violation of, inter alia, 42 U.S.C. §§ 1983, 1985,
and 1986, and that Defendants violated the Americans with Disabilities Act, 42 U.S.C. §
12101 et seq. and the Rehabilitation Act, 29 U.S.C. § 794 et seq. (Id.) Following an initial
screening, Plaintiff’s claims that: (1) Defendants filed false misbehavior reports; (2) sought
monetary damages from Defendants in their official capacity; (3) were asserted against
Defendants DOCCS and New York State Office of Mental Health (“OMH”) for violations of
§§ 1985-1986; and (4) alleged violations of the First Amendment’s free exercise clause
and the Religious Land Use and Institutionalized Persons Act (“RLIUPA”), 42 U.S.C. §
2000cc, were dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b). (March
25, 2010 Decision and Order at 18, Docket No. 3.)
In October 2010, Plaintiff moved to amend the Complaint by adding four additional
causes of action. (Docket No. 33.) Defendants opposed the motion. (Docket No. 40.) In
a June 2, 2011 Decision and Order, Judge Foschio granted Plaintiff leave to add an
allegation that he was deprived of due process by the procedures used in a Time
Allowance Committee proceeding in violation of § 1983. (Docket No. 69.) Plaintiff was
denied leave to add a sixth claim asserting state common law tort claims; a seventh claim
alleging that Defendants discriminated against him on the basis of race and religion in
violation of 42 U.S.C. § 1981; and an eighth claim that Defendants conspired to force feed
2
him and to discriminate against him “based on his status as an African-American Jewish
qualified person with a disability” in violation of 42 U.S.C. §§ 1981, 1983, 1985, and 1986.
(June 2, 2011 Decision and Order at 15-26.) A full recitation of the relevant facts is
included in the June 2011 Decision and Order, and familiarity with this and prior orders is
assumed.
III. DISCUSSION
“A motion for summary judgment may properly be granted . . . only where there is
no genuine issue of material fact to be tried, and the facts as to which there is no such
issue warrant the entry of judgment for the moving party as a matter of law.” Kaytor v. Elec.
Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249-50, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). A court’s function on a
summary judgment motion “is not to resolve disputed questions of fact but only to
determine whether, as to any material issue, a genuine factual dispute exists.” Kaytor, 609
F.3d at 545. “A dispute regarding a material fact is genuine ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’ ” Weinstock v. Columbia
Univ., 224 F.3d 33, 41 (2d Cir. 2003) (quoting Anderson, 477 U.S. at 248), cert denied, 540
U.S. 811 (2003). A court must also “construe the facts in the light most favorable to the
non-moving party and must resolve all ambiguities and draw all reasonable inferences
against the movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir.
2003).
Further, “[i]t is well established that the submissions of a pro se litigant must be
construed liberally and interpreted ‘to raise the strongest arguments that they suggest.’ ”
3
Triestman v. Federal Bur. of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)(emphasis in
original) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)). “A pro se plaintiff,
however, cannot defeat a motion for summary judgment by simply relying on the
allegations of his complaint; he must present admissible evidence from which a reasonable
jury could find in his favor.” Belpasso v. Port Auth. of New York & New Jersey, 400 Fed.
Appx. 600, 601 (2d Cir. 2010); see Champion v. Artuz, 76 F.3d 483, 485 (2d Cir. 1996)
(summary judgment properly entered against pro se plaintiff who failed to oppose motion
with admissible evidence after receiving plainly worded warning of the consequences of
such failure). “[T]he mere existence of a scintilla of evidence in support of the plaintiff's
position will be insufficient; there must be evidence on which the jury could reasonably find
for the plaintiff.” Anderson, 477 U.S. at 252.
Plaintiff’s remaining claims seek damages for alleged violations of his constitutional
rights pursuant to 42 U.S.C. § 1983. This section imposes civil liability upon persons who,
acting under color of state law, deprive an individual of rights, privileges, or immunities
secured by the Constitution and laws. See 42 U.S.C. § 1983. Section 1983 does not itself
provide a source of substantive rights, but instead provides the mechanism by which a
plaintiff may seek vindication of federal rights conferred elsewhere. Graham v. Connor,
490 U.S. 386, 393-94, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). Here, Plaintiff’s claims
are grounded in the First, Eighth, and Fourteenth Amendments.
A.
Excessive Force and Failure to Intervene
Plaintiff’s first cause of action asserts claims that he was subjected to excessive
force by correctional officers in violation of his Eighth Amendment rights on several
4
separate occasions. “A claim of cruel and unusual punishment in violation of the Eighth
Amendment has two components-one subjective, focusing on the defendant's motive for
his conduct, and the other objective, focusing on the conduct’s effect.” Wright v Goord,
554 F.3d 255, 268 (2d Cir. 2009). The core judicial inquiry to be made is not the extent of
the injury, if any, but “ ‘whether force was applied in a good-faith effort to maintain or
restore discipline, or maliciously and sadistically to cause harm.’ ” Wilkins v. Gaddy, 559
U.S. 34, 130 S. Ct. 1175, 1178, 175 L.Ed.2d 995 (2010) (quoting Hudson v. McMillian, 503
U.S. 1, 7, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992)); see Wright, 554 F.3d at 268-69.
Where “a prisoner's allegations and evidentiary proffers could reasonably, if credited, allow
a rational factfinder to find that corrections officers used force maliciously and sadistically,”
summary judgment is improper “even where the plaintiff's evidence of injury was slight and
the proof of excessive force was weak.” Wright, 554 F.3d at 269.
Nonetheless, not “every malevolent touch by a prison guard gives rise to a federal
cause of action,” and de minimis uses of physical force do not fall within the scope of the
Eighth Amendment prohibition against cruel and unusual punishments. Hudson, 503 U.S.
at 9; Wright, 554 F.3d at 268. The objective component therefore focuses on whether “the
alleged wrongdoing was objectively harmful enough to establish a constitutional violation.”
Wright, 554 F.3d at 268 (internal quotation marks omitted).
Plaintiff first alleges that on November 9, 2007, upon his arrival at Southport
Correctional, he was “physically assaulted and restrained in the Draft Room Area” by
Defendants Chapman, Deburgomaster, Gilboy, and an unknown officer. (Pl’s Aff. St.
Undisputed Facts, ¶ 1, Docket No. 115; Pl’s Aff. in Opp’n ¶ 4, Docket No. 142.) In support
of their motion, Defendants Chapman, DeBurgomaster, and Gilroy each assert that, after
5
Plaintiff’s waist chains were removed from him upon his arrival at Southport, Plaintiff
“violently lunge[d]” at C.O. DeBurgomaster. (Decl. of Daniel Chapman ¶ 5, Docket No.
124; Decl. of Mark DeBurgomaster ¶ 5, Docket No. 126; Decl. of Timothy Gilroy ¶ 6,
Docket No. 129; Def’s St. Undisputed Facts ¶ 4, Docket No. 120.) Plaintiff was then
“brought to the floor and placed in full restraints by Sergeant Chapman and Corrections
Officers Gilboy and DeBurgomaster.” (Def’s St. Undisputed Facts ¶ 5; see Chapman Decl.
¶ 5; DeBurgomaster Decl. ¶ 5; Gilroy Decl. ¶ 6.) Plaintiff denies these assertions, and
states that these defendants “maliciously and sadistically attacked Plaintiff while he was
confined in a secured (locked) holding pen without justification.” (Pl’s St. Opposing Facts
¶ 7, Docket No. 141.) Plaintiff also relies on the testimony of three inmate witnesses who
testified on his behalf at a related disciplinary hearing. (Id. (citing Decl. of James Esgrow
Ex. A (hearing testimony), Docket No. 127.) Thus, although Plaintiff’s resulting injuries
consisted of “skin scrapes,” (Pl’s Mem of Law in Opp’n at 23), which Defendants describe
as “small, superficial abrasions on [Plaintiff’s] right shoulder and knee,” (Def’s St.
Undisputed Facts ¶ 6; see Decl. of Marshall Trabout, M.D. ¶ 19, Ex I (relevant medical
record), Docket No. 136.), there is nonetheless a factual issue whether these Defendants
used force maliciously. Wright, 554 F.3d at 269.
The same conclusion cannot be reached with respect to Plaintiff’s remaining
excessive force claims. Plaintiff further alleges that Defendant Chapman verbally
threatened him on January 28, 2008 in retaliation for grieving an alleged assault by
unnamed officers on January 18, 2008. (Am. Compl. ¶¶ 10-12.) Chapman allegedly said,
“You can’t be having other guys fighting your battles for you[,] Brown[,] it’s just going to get
you in trouble.” (Id. ¶ 11.) Defendants correctly argue that verbal threats are generally an
6
insufficient basis for finding an Eighth Amendment violation, particularly where, as here,
they are indirect and unaccompanied by either physical force or the present ability to
effectuate the threat. Felder v. Filion, 368 Fed. Appx. 253, 256 (2d Cir. 2010) (citing Purcell
v. Coughlin, 790 F.2d 263 F.2d 263, 265 (2d Cir. 1986)); Jermosen v. Coughlin, 878 F.
Supp. 444, 449 (N.D.N.Y. 1995). Plaintiff does not allege that Chapman was involved in
the January 18th assault, and in fact he has provided no additional detail regarding that
alleged incident. There is thus insufficient evidence from which a jury could conclude that
either of the alleged January incidents constituted violations of Plaintiff’s Eighth
Amendment rights.
Finally, Plaintiff alleges that he was assaulted “by officers, under the supervision of
Sgt D. Chapman” on March 21, 2008 while being transferred to a new housing area. (Am.
Compl. First Claim ¶ 18.) No other Defendant is named in connection with this incident.
It is unclear from this allegation whether Plaintiff is asserting that Chapman was present
and failed to intervene, or if Plaintiff alleges Chapman was responsible by virtue of his
status as a supervisor of the unnamed offenders. If the latter, then there are insufficient
allegations from which a jury could conclude that Chapman personally participated in the
assault, and this claim must fail. Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010) (a
defendant’s personal involvement in an alleged constitutional deprivation is a prerequisite
to damages under § 1983).
With respect to any alleged failure to intervene, Chapman asserts in his declaration
that no such assault occurred and that there is no documentary evidence supporting the
allegation. (Chapman Decl. ¶ 9.) Defendant Marshall Trabout, M.D., DOCCS’ Regional
Medical Director, similarly alleged that there are no medical records supporting the
7
allegation that force was used on Plaintiff on that date. (Trabout Decl. ¶¶ 1, 20.) Plaintiff
states that the medical records attached to the declaration of Defendant David Napoli
reflect such an incident, but there are no records from 2008 to be found there. (Pl’s St.
Opposing Facts ¶ 14; see Napoli Decl., Docket No. 133.) There are also no medical
records from March 2008 among those submitted by Plaintiff in support of his motion.1 The
absence of any further detail regarding Chapman’s actions, submitted in admissible form,
prevents this Court from interpreting Plaintiff’s allegation against C.O. Chapman as a
failure to intervene claim. Defendants are therefore entitled to summary judgment on
Plaintiff’s Eighth Amendment claims, with the exception of the alleged incident on
November 9, 2007.
B.
Force Feeding
Plaintiff asserts, primarily in his second cause of action, that Defendants violated
his constitutional rights by force feeding him during hunger strikes undergone to protest his
alleged mistreatment. (Pl’s Mem of Law in Opp’n at 10-14.) Specifically, he argues that:
(1) he was force fed in violation of his protected liberty interest in refusing medical
treatment; (2) the means by which Defendants obtained the court order from state court
violated his due process rights; and (3) Defendants’ refusal to immediately remove a
purcutaneous endoscopic gastroscopy (“PEG”) feeding tube,2 following Plaintiff’s consent
to eat a kosher diet, violated his Eighth Amendment rights.
Although a prisoner has a right to refuse medical treatment, liability for a
1
Plaintiff’s exhibits were m anually filed with the Clerk’s office.
2
This is a surgically inserted feeding tube used for long-term use to avoid the daily traum a of
inserting a nasogastric tube at each feeding. (Trabout Decl. ¶ 13.)
8
constitutional violation is nonetheless absent unless the prisoner’s individual liberty interest
outweighs the relevant countervailing state interests. Pabon, 459 F.3d at 252 (citing Turner
v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 96 L.Ed.2d 64 (1987)). The Second Circuit
has already expressly held that a court force-feeding order does not violate a hungerstriking prisoner’s constitutional rights. Grand Jury Subpoena John Doe v. United States,
150 F.3d 170, 172 (2d Cir. 1998) (holding that the “preservation of life, prevention of
suicide, and enforcement of prison security, order, and discipline” were significant
governmental interests outweighing prisoner’s liberty interest).
Further, although the parties do not address this issue, this Court concludes that it
does not have subject matter jurisdiction over Plaintiff’s arguments on this point under the
Rooker-Feldman doctrine. Joseph v. Leavitt, 465 F.3d 87, 89 (2d Cir. 2006) (court has
obligation to address issue of jurisdiction sua sponte), cert denied, 549 U.S. 1282 (2007);
see generally Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482–84 n. 16,
103 S. Ct. 1303, 75 L. Ed.2d 206 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413,
415–16, 44 S. Ct. 149, 68 L. Ed. 362 (1923). Pursuant to this doctrine, “[l]ower federal
courts lack subject matter jurisdiction in ‘cases brought by state-court losers complaining
of injuries caused by state-court judgments rendered before the district court proceedings
commenced and inviting district court review and rejection of those judgments.’ ”
McCluskey v. N.Y.S. Unified Court Sys., 442 Fed. Appx. 586, 589 (2d Cir. 2011) (quoting
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 161
L.Ed.2d 454 (2005)), cert denied 132 S. Ct. 1553 (2012). In other words, Rooker-Feldman
recognizes that federal district courts are prohibited from exercising appellate jurisdiction
over state-court judgments, inasmuch as Congress has reserved that authority to the
9
Supreme Court pursuant to 28 U.S.C. § 1257(a).3 McKithen v. Brown, 481 F.3d 89, 96 (2d
Cir. 2007), cert denied, 552 U.S. 1179 (2008); Hoblock v. Albany County Bd. of Elections,
422 F.3d 77, 85 (2d Cir. 2005). For review to be precluded by the Rooker-Feldman
doctrine, four elements must be met:
First, the federal-court plaintiff must have lost in state court. Second, the
plaintiff must “complain [ ] of injuries caused by [a] state-court judgment[.]”
Third, the plaintiff must “invit[e] district court review and rejection of [that]
judgment [ ].” Fourth, the state-court judgment must have been “rendered
before the district court proceedings commenced”—i.e., Rooker–Feldman
has no application to federal-court suits proceeding in parallel with ongoing
state-court litigation. The first and fourth of these requirements may be
loosely termed procedural; the second and third may be termed substantive.
McKithen, 481 F.3d at 97 (quoting Hoblock, 422 F.3d at 85).
Here, Plaintiff does not dispute that Defendants obtained a court order from a New
York State court over his objection prior to initiating the force feeding. See O’Malley v.
Litscher, 465 F.3d 799, 803 (7th Cir. 2006) (“carrying out a state court’s decision is not an
independent violation of the Constitution”). The order was issued after a hearing at which
Plaintiff appeared with counsel. (Pl’s Exhibits, November 29, 2007 Hr’g Tr. at 1.) Plaintiff
argues, however, that Defendants misrepresented certain facts during the hearing in state
court, particularly those regarding Plaintiff’s weight loss, in order to obtain the order. (Pl’s
Supporting Mem of Law at 17; Pl’s Mem of Law in Opp’n at 10-14.) Plaintiff raised these
same issues at the state court hearing. (Pl’s Exhibits, November 29, 2007 Hr’g Tr. at 22-
3
Section 1257(a) provides: “Final judgm ents or decrees rendered by the highest court of a State in
which a decision could be had, m ay be reviewed by the Suprem e Court by writ of certiorari where the
validity of a treaty or statute of the United States is drawn in question or where the validity of a statute of
any State is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of
the United States, or where any title, right, privilege, or im m unity is specially set up or claim ed under the
Constitution or the treaties or statutes of, or any com m ission held or authority exercised under, the United
States.”
10
32.) The present submission is therefore an invitation for this Court to review the state
court’s resolution of these issues and offer redress for alleged injuries caused by the state
court order. Inasmuch as this would violate the Rooker-Feldman doctrine, the Court
declines to do so. McKithen, 481 F.3d at 97; Hoblock, 422 F.3d at 83; see O’Malley, 465
F.3d at 803 (Rooker-Feldman applies where the plaintiff had an opportunity to raise
constitutional challenges to defendants’ actions in state court); Walker v. Horn, 385 F.3d
321, 331-32 (3d Cir. 2004) (Rooker-Feldman applied where plaintiff’s “constitutional claim
[was] bottomed on his theory that the prison officials had inadequate procedural
safeguards to insure that the state court's ruling would be based upon accurate and
complete information”), cert denied, 544 U.S. 1021 (2005).
Plaintiff also argues that Defendants should have removed the PEG tube when he
agreed to accept kosher meals in August 2008, instead of waiting until April or May of
2009. The Court finds this argument to be a challenge to the scope of the state court’s
order, which expressly allows the use of a “PEG, or other percutaneous enterostomy tubes,
as dictated by the judgment of the treating physicians according to the existing clinical
indications and necessity,” (Napoli Decl. Ex. B (state court order)), but places no temporal
limitation on the exercise of that discretion. Further, Plaintiff’s own allegations establish
that the decision to postpone the removal of the feeding tube was made by a treating
physician,4 notably one Plaintiff has not named as a defendant. (Am. Compl. Second Claim
4
Even if subject m atter jurisdiction did exist, to violate a prisoner’s Eighth Am endm ent rights, there
m ust be evidence of “deliberate indifference to serious m edical need of prisoners.” Estelle v. Gam ble, 429
U.S. 97, 104-05, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976). Plaintiff’s disagreem ent with the treating
physician’s determ ination, particularly in light of Plaintiff’s adm itted history of utilizing hunger strikes as a
form of protest, is insufficient to establish that any Defendant was deliberately indifferent to Plaintiff’s
m edical needs. See Chance v. Arm strong, 143 F.3d 698, 703 (2d Cir. 1998); Frank v. County of Ontario,
884 F. Supp. 2d 11, 18 (W .D.N.Y. 2012).
11
¶¶ 31-32.) Accordingly, “Rooker-Feldman [also] bars [Plaintiff’s] Eighth Amendment claim
that it was of violation of his rights to force-feed him at all since he was willing to eat in
response to the state court’s order.” O’Malley, 465 F.3d at 804 (the state court’s
determination that force feeding was necessary established defendant’s actions were in
good faith, rather than malicious, as required for an Eighth Amendment claim); see Walker,
385 F.3d at 331 (doctrine applies where “claim is not a frontal attack on the propriety of the
state court order[, but] nevertheless questions the propriety of the state court's order”).
Plaintiff’s Eighth and Fourteenth Amendment claims related to his force feeding are
therefore dismissed due to lack of subject matter jurisdiction.
C.
Retaliation Claims
Plaintiff contends that Defendants transferred him to a new housing unit in
retaliation for filed grievances, turned off the lights and water to his cell, and subjected him
to mistreatment in force feeding in retaliation for his hunger strike in violation of his First
Amendment rights. In order to establish a First Amendment retaliation claim under § 1983,
a prisoner must show “(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.” Espinal v. Goord, 558
F.3d 119, 128 (2d Cir. 2009). Further, “because prisoner retaliation claims are ‘easily
fabricated,’ and accordingly ‘pose a substantial risk of unwarranted judicial intrusion into
matters of general prison administration,’ we are careful to require non-conclusory
allegations.” Bennett v. Goord, 343 F.3d 133, 137 (2d Cir. 2003) (quoting Dawes v.
Walker, 239 F.3d 489, 491 (2d Cir. 2001), overruled on other grounds, Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 122 S. Ct. 992, 152 L. Ed.2d 1 (2002)); see Scott v. Coughlin,
12
344 F.3d 282, 287 (2d Cir. 2003) (conclusory allegations or denials insufficient to defeat
otherwise meritorious summary judgment motion).
The filing of a grievance is protected conduct for the purposes of a First Amendment
retaliation claim. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995). Plaintiff further
alleges, without elaboration in any of his supporting documents, that his move “from [his]
housing area B-1-11 to housing area C-1-15” constituted an adverse action. (Am. Compl.
First Claim ¶ 6.) “[T]he validity of a retaliation claim turns not on the atypicality or
harshness of an inmate’s confinement, but on whether that confinement would deter a
similarly situated inmate of ‘ordinary firmness’ from exercising his constitutional rights.”
Allah v. Poole, 506 F. Supp. 2d 174, 186 (W.D.N.Y. 2007) (quoting Allah v. Seiverling, 229
F.3d 220, 224 (3d Cir. 2000); see Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003). Thus,
a housing transfer may, under certain circumstances, constitute an adverse action. See
Poole, 506 F. Supp. 2d at 188-89 (evidence suggesting sergeant harbored some animus
against plaintiff for filed grievances sufficient to raise material issue of fact whether
seventeen-day transfer to involuntary protective custody was retaliatory).
Here, however, there is no evidence that the conditions in housing area ‘C’ were
different from housing area ‘B’ such that an inmate of ordinary firmness would be
dissuaded from exercising his constitutional rights. Houston v. Horn, No. 09 Civ 801, 2010
WL 1948612, *8-9 (S.D.N.Y. May 13, 2010) (five-day placement in “Close Custody”
insufficient to constitute adverse action in absence of evidence that conditions differed
from general population housing); Young v. Superintendent Kadien, No. 09-CV-6639, 2010
WL 1909566, *3 (W.D.N.Y. May 7, 2010) (insufficient allegations to support retaliation
claim in absence of facts indicating that conditions at new facility were adverse compared
13
to conditions at old facility). As such, Defendants are entitled to summary judgment on
Plaintiff’s retaliation claim related to the housing transfer.
Further, this Court and the Northern District have each found Plaintiff’s assertion
that his hunger strikes constitute constitutionally protected speech to be questionable.
Brown v. Poole, No. 05-CV-509S, Docket No. 51 at 16-17; Brown v. McGinnis, 05-CV758S, Docket No. 72 at 7; see Brown v. Graham, No. 9:07 CV 1353, 2010 WL 6428251,
*16 (N.D.N.Y. Mar. 30, 2010), report and recommendation adopted by 2011 WL 1213482
(Mar. 31, 2011), aff’d 470 Fed. Appx. 11 (2d Cir. 2012). Even assuming that the hunger
strike is protected speech, Plaintiff does not dispute that he has a history of hunger strikes;
that Defendants obtained a court order prior to taking any action with respect to force
feeding, or that determinations regarding nasogastric and purcutaneous endocscopic
gastroscopy tubes were made by treating physicians. Accordingly, this Court finds that
there is insufficient evidence from which a jury could find a causal connection between the
actions taken by Defendants and any alleged retaliatory animus on the part of Defendants.
See Espinal, 558 F.3d at 128; see also O’Malley, 465 F.3d at 804 (the state court’s
determination that force feeding was necessary established defendant’s actions were in
good faith, rather than malicious).
Finally, although Plaintiff alleges that the lights, water, and toilet in his cell were
turned off for several days in March 2008 in retaliation for past grievances, he fails to
specify which defendant, if any, was allegedly involved. (Am. Compl. First Claim ¶¶ 14-15.)
In the absence of any indication that a named defendant was personally involved in this
alleged retaliatory act, this claim must be dismissed. Collins v. Ferguson, 804 F. Supp. 2d
134, 137 (W.D.N.Y. 2011); Edwards v. City of New York, No. 07-CV-5286, 2009 WL
14
1910740, *3 (E.D.N.Y. June 29, 2009).
D.
Disciplinary Hearing
To the extent that the Amended Complaint can be read to assert that the hearing
officer’s preclusion of a witness Plaintiff requested to appear at his disciplinary hearing
violated Plaintiff’s due process rights, that claim is without merit. (Am. Compl. ¶¶7-8; see
Def’s Mem of Law at 13-14.) A prisoner’s right to call witnesses and present evidence in
disciplinary hearings may be denied on the basis of irrelevance or lack of necessity.
Kingsley v. Bur. of Prisons, 937 F.2d 26, 30 (2d Cir. 1991)(citing Ponte v. Real, 471 U.S.
491, 496, 105 S. Ct. 2192, 85 L. Ed. 2d 553 (1985)); Wolff v. McDonnell, 418 U.S. 539,
566, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974) (prison officials have discretion to keep
hearing within reasonable limits and to refuse to call a witness for irrelevance or lack of
necessity). The burden, however, is not on the prisoner to establish that an official’s
conduct at a hearing was arbitrary and capricious, “but upon the official to prove the
rationality of the position.” Kingsley, 937 F.2d at 30-31.
In support of their motion, Defendants submitted the declaration of the hearing
officer, James Esgrow, who stated that he precluded one inmate from testifying at the
hearing because there was no indication that this witness would provide any nonredundant testimony. (Decl. of James Esgrow ¶¶ 1, 7, 11, Docket No. 127.) Esgrow
further states that when questioned, Plaintiff answered that the witness “won’t tell [Esgrow]
no more than what the other three [witnesses] have already told [him].” (Id. ¶ 11, Ex. A at
18 (disciplinary hearing transcript).)
Plaintiff does not dispute these facts in his
submissions, therefore Defendants have established the rationality of the hearing officer’s
decision, Kingsley, 937 F.2d at 30-31, and they are entitled to summary judgment on this
15
claim.
E.
Time Allowance Hearing
Judge Foschio permitted Plaintiff to amend his original complaint to include a claim
that the procedure by which his good-time credits were revoked in December 2007 failed
to comport with constitutional due process. (June 6, 2011 Decision and Order, Docket No.
69 at 15; Am. Compl. Fifth Claim.) Plaintiff argues that he received inadequate assistance
due to his assigned assistant’s refusal to obtain requested documentary evidence,
including mental health records, that would correct certain erroneous information in his file.
(Am. Compl. Fifth Claim ¶¶ 5-8.) Notably, an alleged violation of a prisoner’s right to
assistance in a disciplinary hearing is reviewed for harmless error. Pilgrim v. Luther, 571
F.3d 201, 206 (2d Cir. 2009); see generally Roston v. Selsky, No. 00 Civ 8994, 2001 WL
1297797, *4 (S.D.N.Y. Oct. 25, 2001) (time allowance committees are part of the
disciplinary process). Further, as noted above, a prisoner’s right to call witnesses and
present evidence in disciplinary hearings may be denied on the basis of irrelevance or lack
of necessity. Kingsley, 937 F.2d at 30; Wolff, 418 U.S. at 566.
In support of their motion for summary judgment, Defendants submitted the
declaration of John Colvin, the Deputy Superintendent of Security who acted as Time
Allowance Committee (“TAC”) Chairman in December 2007. (Colvin Decl. ¶ 1, Docket No.
125.) Colvin asserts that according to a Time Allowance-Notice and Assistance Form
completed by Plaintiff’s designated assistant, Plaintiff did not request any evidence prior
to the hearing. (Colvin Decl. ¶ 8, Ex. B.) Colvin further asserts that any further evidence
would have been irrelevant, inasmuch as Plaintiff’s failure to complete a required anger
management program and his refusal to complete a required substance abuse program
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each mandated the TAC determination to withhold good time credit. (Id. ¶¶ 9-12.) Plaintiff
does not dispute that he has not completed the required anger management program, (Pl’s
Opposing St. of Facts ¶ 63), thus any further evidence, even if mitigating, would have been
irrelevant to the committee’s determination, rendering the alleged failure of his assistance
harmless. Pilgrim, 571 F.3d at 206; Faulk v. Fisher, No. 09-CV-6377, 2012 WL 2953229,
*7 (W.D.N.Y. July 19, 2012) (alleged error in denying prisoner right to appear at TAC
hearing was harmless where prisoner had not completed a required aggression
replacement training, thereby precluding a determination that he was prejudiced by the
error).
F.
Supervisor Liability
Plaintiff’s third cause of action alleges liability on the part of Defendants Fischer,
LeClaire, and Napoli for their knowledge of and participation in the constitutional violations
alleged in Plaintiff’s other causes of action. In light of the conclusions regarding those
claims, discussed above, the only claim to be considered here is the alleged November 9,
2007 assault. Plaintiff alleges only that Defendant Napoli, Superintendent of Southport
Correctional Facility, was informed of this assault by way of reports filed by “subordinate
staff,” Plaintiff’s filed grievance, and per requirements of the applicable regulations. (Am.
Compl. Third Claim ¶ 1.) This is insufficient to establish the personal involvement
necessary to impose liability under § 1983. Farid, 593 F.3d at 249 (a defendant’s personal
involvement in an alleged constitutional deprivation is a prerequisite to damages under §
1983). Even if Napoli had affirmed the denial of the relevant grievance following appeal,
a fact Plaintiff has not alleged, that alone does not establish the requisite personal
involvement. Joyner v. Greiner, 195 F. Supp. 2d 500, 506 (S.D.N.Y. 2002); James v.
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Poole, No. 06-CV-6007, 2013 WL 132492, *7 (W.D.N.Y. Jan. 9, 2013)
G.
Defendants DOCCS and NYS Office of Mental Health
Plaintiff’s fourth cause of action is asserted against only Defendants DOCCS and
OMH. Plaintiff alleges that he was subjected to unneeded services over his objection, and
denied access to other services, based on Defendants’ erroneous perception of him as
having a mental impairment. (Am. Compl. Fourth Claim ¶ 1.) This cause of action was
liberally construed to state a violation of the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12101 et seq. and the Rehabilitation Act, 29 U.S.C. § 794 et seq. upon initial
screening pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b). (March 25, 2010
Decision and Order at 6, Docket No. 3.) As developed in his memoranda of law, however,
Plaintiff’s argument is that, despite being diagnosed as having no mental illness, he was
nonetheless transferred and subjected to psychiatric evaluations in retaliation for filing
grievances and participating in hunger strikes as discussed above. (Pl’s Mem of Law at 26; Pl’s Mem of Law in Opp’n at 3-4.) In other words, Plaintiff is not asserting that he was
discriminated against based on a perceived disability in violation of the ADA, but that
Defendants intentionally mislabeled him despite knowing he had no mental impairment.
Plaintiff’s fourth cause of action is therefore more properly construed as asserting that
DOCCS and OMH are liable for monetary damages pursuant to § 1983 for retaliating
against Plaintiff in violation of his First Amendment rights. (Am. Compl. Fourth Claim
(seeking only monetary damages).) Such a claim must be dismissed because neither
DOCCS nor OMH is a person within the meaning of § 1983. Spencer v. Doe, 139 F.3d 107,
111 (2d Cir. 1998) (neither a state nor a state agency is a person within the meaning of §
1983); see Howlett By and Through Howlett v. Rose, 496 U.S. 356, 365, 110 S. Ct. 2430,
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110 L. Ed. 2d 332 (1990) (an entity with Eleventh Amendment immunity is not a person
with the meaning of § 1983).
IV. CONCLUSION
With one exception, Defendants have established their entitlement to summary
judgment on Plaintiff’s claims. There is a material question of fact regarding the alleged
assault on November 9, 2007, therefore summary judgment is denied to both parties on
that claim. Defendant’s motion for summary judgment is otherwise granted, Plaintiff’s
motion for summary judgment is denied in its entirety, and the Amended Complaint is
dismissed with respect to all Defendants except Daniel Chapman, Mark DeBurgomaster,
and Timothy Gilboy.
V. ORDERS
IT HEREBY IS ORDERED that Plaintiff’s Motion for Summary Judgment (Docket
No. 114) is DENIED;
FURTHER, that Defendants’ Cross-Motion for Summary Judgment (Docket No. 119)
is GRANTED in part and DENIED in part.
FURTHER, that the Amended Complaint is dismissed with respect to all Defendants
except Daniel Chapman, Mark DeBurgomaster, and Timothy Gilboy.
SO ORDERED.
Dated: March 2, 2013
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Judge
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