Amaker v. Fischer et al
Filing
32
-CLERK TO FOLLOW UP-ORDER granting 28 Motion to Amend or Correct; granting in part and denying in part 16 Motion to Dismiss. The Clerk of the Court is directed to terminate Karen Bellamy as a defendant in this action; file plaintiffs proposed a mended complaint (Dkt. #28-1), as a second amended complaint; and take the necessary steps to effect service of the second amended complaint upon C.O. P. Jaynes at Southport. Signed by Hon. H. Kenneth Schroeder Jr. on 11/16/2016. (KER)(Mailed to plaintiff)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ANTHONY AMAKER,
Plaintiff,
-v-
10-CV-88(Sr)
BRIAN S. FISCHER, et al.,
Defendants.
DECISION AND ORDER
Pursuant to 28 U.S.C. § 636(c), the parties have consented to the
assignment of this matter to the undersigned to conduct all proceedings in this case,
including the entry of final judgment. Dkt. #27.
Plaintiff commenced this action, pro se, pursuant to 42 U.S.C. § 1983,
alleging a violation of his constitutional right to due process, religious freedom, free
speech and access to the courts during his incarceration at the Elmira Correctional
Facility (“Elmira”), and the Southport Correctional Facility (“Southport”), and challenging
the constitutionality of New York State Department of Corrections & Community
Supervision (DOCCS’”), Directive 4913. Dkt. #1 & Dkt. #8.
Currently before the Court is a motion to dismiss (Dkt. #16), defendants
Karen Bellamy, Brian Fischer and Lucien LeClaire from this action, and plaintiff’s
motion to file a second amended complaint to add P. Jaynes as a defendant in this
action. Dkt. #28. For the following reasons, the motion to amend is granted and the
motion to dismiss is granted as to Karen Bellamy and granted in part as to Brian
Fischer and Lucien LeClaire.
Motion to Amend Complaint
Although Fed. R. Civ. P. 15(a) generally governs the amendment of
complaints, where the proposed amendment seeks to add new defendants, Fed. R.
Civ. P. 21 governs. Rush v. Artuz, No. 00 CIV 3436, 2001 WL 1313465, at *5 (S.D.N.Y.
Oct. 26, 2001). Rule 21 states that “[p]arties may be . . . added by order of the court on
motion of any party . . . at any stage of the action and on such terms as are just.” Fed.
R. Civ. P. 21. “In deciding whether to allow joinder, the Court is guided by the same
standard of liberality afforded to motions to amend pleadings under Rule 15.” Rush,
2001 WL 1313465, at *5 (internal quotation omitted); see Clarke v. Fonix Corp., No. 98
CIV 6116, 1999 WL 105031, at *6 (S.D.N.Y. March 1, 1999), aff’d 199 F.3d 1321 (2d
Cir. 1999).
Fed. R. Civ. P. 15(a) provides that a party may amend a pleading by leave
of court or by written consent of the adverse party. Leave to amend is to be "freely
granted" unless the party seeking leave has acted in bad faith, there has been an
undue delay in seeking leave, there will be unfair prejudice to the opposing party if
leave is granted, or the proposed amendment would be futile. Foman v. Davis, 371
U.S. 178, 182 (1962); State Teachers Retirement Bd. v. Fluor Corp., 654 F.2d 843, 856
(2d Cir. 1981); Fed. R. Civ. P.15(a). An amendment is futile if it cannot survive a
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motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of
Civil Procedure. Parker v. Columbia Pictures Indus., 204 F.3d 326, 339 (2d Cir. 2000).
To survive a motion to dismiss pursuant Rule 12(b)(6) of the Federal
Rules of Civil Procedure, “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 Atlantic 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. Application of this standard is “a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.” Id. at 679.
Plaintiff alleges that, on February 16, 2010, during an inventory of
plaintiff’s personal property at Southport, Corrections Officer (“C.O.”), Jaynes refused to
allow plaintiff to take copies of The Final Call religious newspaper to his cell. Dkt. #281, ¶ 25. As plaintiff was preparing to depart Southport on May 14, 2010, plaintiff alleges
that C.O. Jaynes separated plaintiff’s religious books and books authored by plaintiff
into a separate draft bag and then advised plaintiff that he was over the limit for draft
bags, thereby preventing plaintiff from possessing his religious materials. Dkt. #28-1,
¶¶ 26 & 30. Following plaintiff’s return to Southport on June 14, 2010, plaintiff alleges
that C.O. Jaynes withheld legal and religious materials from plaintiff and threatened to
destroy legal work which had been in storage at Southport since June of 2009.1 Dkt.
1
By Decision and Order entered on June 23, 2010, this Court denied plaintiff’s motion
for a preliminary injunction enjoining defendants from enforcing DOCCS’ Directive 4913, which
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#28-1, ¶¶ 27-29. Plaintiff further alleges that C.O. Jaynes intentionally sent a draft bag
of plaintiff’s personal property to another facility in retaliation for Magistrate Judge
Homer’s Order directing officials at Southport to forward plaintiff’s legal papers to the
Northern District of New York for plaintiff’s use at trial. Dkt. #28-1, ¶ 28. Plaintiff also
alleges that C.O. Jaynes intentionally destroyed plaintiff’s typewriter so as to deprive
plaintiff of his ability to communicate with the court. Dkt. #28-1, ¶¶ 29-30. Plaintiff
alleges that C.O. Jaynes behaved this way to retaliate against plaintiff for challenging
regulations limiting the number of draft bags of personal property which could be
transferred from facility to facility. Dkt. #28-1, ¶ 28. As these allegations state a
plausible violation of plaintiff’s First Amendment rights, plaintiff’s motion to amend (Dkt.
#28), is granted.
Motion to Dismiss
Commissioner Brian Fischer, Deputy Commissioner Lucien J. LeClaire,
and Director of the Inmate Grievance Program (“IGP Director”), Karen Bellamy, move to
dismiss the complaint for lack of personal involvement. Dkt. #16.
It is well settled that the personal involvement of defendants in an alleged
constitutional deprivation is a prerequisite to an award of damages under § 1983.
limits the volume of an inmates’ legal work product upon transfer to another correctional facility,
and directed DOCCS to afford plaintiff an opportunity to sort through his five draft bags of legal
materials to cull one draft bag of legal materials to retain and to dispose of the remaining
materials in accordance with the provisions of DOCCS Directive 4913. 07-CV-279 at Dkt. #87.
The Court subsequently directed that plaintiff’s excess legal materials be retained at Southport
pending resolution of plaintiff’s appeal. 07-CV-279 at Dkt. #95 & Dkt. #110. On December 20,
2011, the Court of Appeals for the Second Circuit affirmed the denial of the preliminary
injunction. 07-CV-279 at Dkt. #146; Amaker v. Fischer, 453 Fed. App’x 59 (2d Cir. 2011).
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Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001); Colon v. Coughlin, 58 F.3d 865,
873 (2d Cir. 1995); Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060,1065 (2d Cir.
1989). Personal involvement may be shown by evidence that: (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 or permitted the continuation of a policy or custom under which
unconstitutional practices occurred; (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 unconstitutional acts were occurring. Colon, 58 F.3d at 873.2 “There is no
respondeat superior liability in § 1983 cases.” Green v. Bauvi, 46 F.3d 189, 194 (2d
Cir. 1995). Thus, supervisory officials may not be held liable merely because they hold
a position of authority. Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996).
In opposition to the motion to dismiss, plaintiff declares that he sent “direct
letters to Mr. Fischer” in 2009 regarding the denial of religious accommodations during
Ramadan,3 and that Commissioner Fischer forwarded his complaints to Deputy
Commissioner LeClaire, who failed to properly investigate. Dkt. #24, ¶ 1. As these
allegations precede the time frame of the complaint, which address events beginning
on November 30, 2009 (Dkt. #28-1, ¶ 7), they cannot be used to assert the personal
2
Although recognizing that the Supreme Court’s decision in Iqbal “may have heightened
the requirements for showing a supervisor’s personal involvement with respect to certain
constitutional violations,” the Court of Appeals has yet to resolve that issue. Grullon v. City of
New Haven, 720 F.3d 133, 139 (2d Cir. 2013).
3
In 2009, Ramadan was observed from August 21st through September 19th.
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involvement of Commissioner Fischer or Deputy Commissioner LeClaire in the
constitutional violations alleged in this complaint.
Plaintiff’s second amended complaint alleges that, on December 10,
2009, Commissioner Fischer was notified of defendants’ reliance upon a Central Office
Review Committee (“CORC”), decision4 to deny plaintiff his right to attend Nation of
Islam services and to be free from punishment for wearing dreadlocks despite a
preliminary injunction5 prohibiting such conduct. Dkt. #28-1, ¶ 10. More specifically,
plaintiff alleges that IGP Director Bellamy provided C.O. Nowaczyk with a copy of a
CORC decision which was used to justify the misbehavior reports dated November 30,
2009 and December 10, 2009. Dkt. #28-1, ¶¶ 7- 8. In opposition to the motion to
dismiss, plaintiff declares that Deputy Commissioner LeClaire and IGP Director Bellamy
are involved in issuing, implementing and disseminating decisions from CORC, which
functions under the authority of Commissioner Fischer. Dkt. #24, ¶¶ 4-7. Thus, plaintiff
argues that Commissioner Fischer, Deputy Commissioner LeClaire and IGP Director
Bellamy were personally involved in the use of the Altona CORC decision to violate
4
On or about September 30, 2009, CORC issued a decision regarding an inmate at the
Altona Correctional Facility (“Altona”), which “asserts that only inmates of the Rastafarian faith
may have dreadlocks” and “that staff have correctly directed the grievant to remove his
dreadlocks, or change his religious designation, in accordance with Department policy.” 06-CV490 at Dkt. #297, p.6.
5
In 06-CV-490, the Hon. William M. Skretny entered a preliminary injunction dated
December 18, 2007, enjoining DOCCS’ defendants from punishing plaintiff for refusing to cut
his hair or refusing to change his religious affiliation and from precluding plaintiff’s attendance
at Nation of Islam services and classes because of his dreadlocks. 06-CV-490 at Dkt. #115.
On June 23, 2010, the Hon. Richard J. Arcara made the preliminary injunction permanent and
awarded plaintiff summary judgment on his cause of action alleging a violation of free exercise
rights pursuant to the First Amendment of the United States Constitution. 06-CV-490 at Dkt.
#245.
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plaintiff’s right to attend Nation of Islam services despite their knowledge6 of the
preliminary injunction contravening the Altona CORC decision. Dkt. #23, pp.2-3 & 6;
Dkt. #24, ¶ 8. As these allegations mirror conduct for which plaintiff has already
received an award of damages for contempt of the preliminary injunction and injunction,
defendants’ motion to dismiss is granted with respect to these allegations.
In opposition to the motion to dismiss, plaintiff declares that
Commissioner Fischer forwarded several letters from plaintiff complaining of the failure
of CO Nowaczyk and CO Titus to file plaintiff’s grievances to IGP Director Bellamy.
Dkt. #24, ¶¶ 2-4. Plaintiff also declares that he mailed a grievance to Commissioner
Fischer following an incident on November 5, 2009, and that Commissioner Fischer
forwarded the grievance to Karen Bellamy, who forwarded it to Elmira. Dkt. #23, p.4 &
Dkt. #34, ¶ 4. In light of the general rule that an official who receives a letter from an
inmate and passes it on to a subordinate for response or investigation will not be
deemed personally involved with respect to the subject matter of the letter, these
allegations fail to plausibly allege a constitutional violation. See Rivera v. Fischer, 655
F. Supp.2d 235, 238 (W.D.N.Y. 2009) (collecting cases).
Plaintiff also alleges that Commissioner Fischer hired Commissioner’s
Hearing Officer (“CHO”), James Esgrow, who was appointed by Superintendent Bradt
6
By Decision and Order entered October 3, 2012, the Hon. Richard J. Arcara adopted
this Court’s Report, Recommendation and Order (06-CV-490 at Dkt. #297), finding DOCCS’
employees, including the Commissioner and Deputy Commissioner LeClaire, in contempt of the
Court’s preliminary injunction and injunction and awarding plaintiff $19,600.00. In the contempt
proceeding, the parties stipulated that the Attorney General’s Office faxed and mailed the
preliminary injunction order to the Commissioner on December 18, 2007. 06-CV-490 at Dkt.
#297, p.4.
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to conduct a Tier III disciplinary hearing regarding the misbehavior reports regarding
plaintiff’s refusal to either change his designated religion or remove his dreadlocks.
Dkt. #28-1, ¶ 11. This is insufficient to plausibly allege Commissioner Fischer’s
personal involvement in CHO Esgrow’s alleged denial of due process during the course
of plaintiff’s disciplinary hearings.
Plaintiff’s second amended complaint alleges that plaintiff wrote
Commissioner Fischer on February 17, 2010, presumably regarding the withholding of
his legal work pursuant to Directive #4913. Dkt. #28-1, ¶ 20. Plaintiff alleges that
Directive #4913 is being used to arbitrarily search personal property and that it is
unconstitutional as applied to him. Dkt. #28-1, ¶ 31. During the course of briefing of
plaintiff’s motion for a preliminary injunction regarding Directive #4913, defendants
submitted copies of a Memorandum dated October 23, 2008 which was drafted by
Commissioner Fischer explaining the new policy. 07-CV-279 at Dkt. #81, p.16.
Defendants also submitted copies of the Directive, dated October 23, 2008, which is
signed by Deputy Commissioner LeClaire as the “Approving Authority.” 07-CV-279 at
Dkt. #81, p.8. These documents are sufficient evidence of Commissioner Fischer and
Deputy Commissioner LeClaire’s personal involvement in the implementation of an
allegedly unconstitutional policy as to preclude their dismissal from this action.
CONCLUSION
For the reasons set forth above, the motion (Dkt. #16), to amend the
complaint to add C.O. P. Jaynes as a defendant is granted. Furthermore, the motion to
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dismiss (Dkt. #28), is granted as to IGP Director Karen Bellamy and granted as to
Commissioner Fischer and Deputy Commissioner LeClaire except with respect to
plaintiff’s allegations that Commissioner Fischer and Deputy Commissioner LeClaire
were personally involved in the implementation of the allegedly unconstitutional
Directive #4913.
The Clerk of the Court is directed to terminate Karen Bellamy as a
defendant in this action; file plaintiff’s proposed amended complaint (Dkt. #28-1), as a
second amended complaint; and take the necessary steps to effect service of the
second amended complaint upon C.O. P. Jaynes at Southport.
SO ORDERED.
DATED:
Buffalo, New York
November 16, 2016
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
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