Mayo v. Fischer et al

Filing 14

DECISION AND ORDER GRANTING in part and DENYING in part Defendants' 7 Motion to Dismiss. Signed by William M. Skretny, Chief Judge U.S.D.C. on 8/16/2013. (MEAL)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
WILSON MAYO,
Plaintiff,
v.

DECISION AND ORDER
11-CV-869S

JAMES CONWAY, SGT. J. LAVIS, J. COLLIER,
S. KELLY, BOUGHKITE,
Defendants.

I. INTRODUCTION
In this action, pro se Plaintiff Wilson Mayo alleges under 42 U.S.C. § 1983 that
Defendants violated his Eighth and Fourteenth Amendment rights by assaulting him, falsely
charging him with violating inmate rules, and denying him due process during his
disciplinary hearing. Presently before this Court is Defendants’ Motion to Dismiss Plaintiff’s
first and fourth causes of action.1 For the following reasons, Defendants’ motion is granted
in part and denied in part.

II. BACKGROUND
A.

Procedural History
Plaintiff commenced this action on October 18, 2011, by filing a Complaint in the

United States District Court for the Western District of New York. Because Plaintiff was
granted in forma pauperis status, this Court screened his Complaint pursuant to 28 U.S.C.
§ § 1915(c)(2)(B) and 1915A(a).

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As a result of this screening process, this Court

In support of their Motion to Dism iss, Defendants filed a m em orandum of law (Docket No. 7). In
response, Plaintiff filed a reply m em orandum and an affidavit in opposition (Docket No. 13).

dismissed the complaint as against Brian Fischer, Commissioner, with leave for Plaintiff
to amend to allege Fischer’s personal involvement in the alleged constitutional violations.
(See Docket No. 4). Plaintiff, however, did not replead any claims against Commissioner
Fischer in his amended complaint. (Docket No. 5). This Court therefore dismissed with
prejudice all claims against Fischer. (Docket No. 6).
B.

Facts
The following facts, drawn from the Amended Complaint, are assumed true for

purposes of the instant motion. At all times relevant, Plaintiff was an inmate in the custody
of the New York State Department of Corrections and Community Supervision incarcerated
at the Attica Correctional Facility. (Amended Complaint, Docket No. 5, p. 8, ¶ 1).2 Plaintiff
is now incarcerated at the Elmira Correctional Facility. (Am. Compl., p. 1).
Plaintiff alleges that Defendants assaulted him, filed a false misbehavior report
against him, and testified falsely during his disciplinary hearing. At all times relevant,
Defendant Conway was the Superintendent of Attica; Defendant Lavis was a lieutenant at
Attica; and Defendants Collier and Kelly were correctional officers at Attica.
Plaintiff alleges that Defendant Kelly assaulted him on February 12, 2009, when
Plaintiff was leaving the Attica visitation room after Bible Study. (Am. Compl., p. 8, ¶ ¶ 113). According to Plaintiff, he rang the buzzer six or seven times and waited more than 15
minutes before Defendant Kelly opened the door to let him out of the visitation room. (Am.
Compl., p. 8, ¶ 3). At that time, Defendant Kelly expressed annoyance that Plaintiff rang
the buzzer so many times. (Am. Compl, p. 8, ¶ 4). He then took Plaintiff’s ID card and
strip-searched him. (Am. Compl., p. 9, ¶ 11, p. 37).

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Plaintiff’s Am ended Com plaint and the five exhibits attached to it are consecutively num bered as
a single docum ent.

After the strip-search, Defendant Kelly told Plaintiff that he was confiscating his
glasses and belt. (Am. Compl., p. 9, ¶ 11, p. 37). When Plaintiff protested and asked to
speak to a sergeant, Defendant Kelly told him to “shut [his] black mouth,” pushed him onto
a bench, punched him in the face, and threw him on the floor. (Am. Compl., p. 8, , ¶¶ 8,
11, 13.) Three or four officers then arrived at the scene. (Am. Compl., p. 9, ¶ 13).
After this altercation, Plaintiff was taken to the prison medical unit, where he was
drug tested and his injuries were examined and photographed. (Am. Compl., p. 9, ¶ 14).
Plaintiff remained under observation awaiting the results of the drug tests in the Special
Watch Unit for three days. After his drug tests returned negative, he was transferred to
solitary confinement in the Special Housing Unit, on February 15, 2000. (Am. Compl., p.
9, ¶¶ 14-15).
On February 18, 2009, Plaintiff was served with a Misbehavior Report, written by
Defendant Kelly, which charged Plaintiff with violating rule 100.11, Assault on Staff, and
rule 104.11, Violent Conduct. (Am. Compl., p. 40).
On February 20, 2009, Defendant Collier was assigned to be Plaintiff’s Employee
Assistant for the purpose of assisting Plaintiff in his upcoming disciplinary hearing. (Am.
Compl., p. 10, ¶ 17). Plaintiff alleges that Defendant Collier gave him false information
regarding the day of the incident with Defendant Kelly, which undermined Plaintiff’s
credibility during the disciplinary hearing. Specifically, Plaintiff asked Defendant Collier to
find out what happened to his glasses and belt, who searched Plaintiff before he entered
the visitation room (to corroborate that he was wearing glasses and a belt when he entered
the room), and to get the names of the officers working at the visitation room desk so they
could be called as witnesses. (Am. Compl., p. 10, ¶ 10). Defendant Collier allegedly told
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Plaintiff that Defendant Kelly was the officer who searched him at the entrance to the
visitation room and Kelly later put Plaintiff’s glasses and belt with Plaintiff’s personal
property. (Am. Compl., p. 11, ¶ 21). Defendant Kelly denied that he told this to Defendant
Collier, and Defendant Collier was never called to testify at the disciplinary hearing. (Am.
Compl., p. 11, ¶ ¶ 22, 24).
Plaintiff’s disciplinary hearing began on February 21, 2009, and was presided over
by Defendant Lavis. (Am. Compl., p. 12, 26). Plaintiff contends that Defendant Lavis
refused to let him call witnesses, refused to let him ask questions of witnesses directly, and
based his ultimate decision on false statements by Defendant Kelly. (Am. Compl., p. 13,
¶ ¶ 42-50). Plaintiff contends that because there were factual discrepancies concerning
who pat-frisked Plaintiff before he entered the visitation room, Defendant Lavis should
have called additional witnesses or consulted the visitation room log book. (Am. Compl.,
p. 15, ¶ 62).
On February 23, 2009, Plaintiff wrote a letter to the Superintendent of Attica,
Defendant Conway, asking him to talk to Defendant Kelly and to investigate the
misbehavior report. (Am. Compl., p. 23). Plaintiff alleges that Defendant Conway received
this letter and forwarded it to Defendant Lavis. (Id.).

III. DISCUSSION
Cognizant of the distinct disadvantage that pro se litigants face, federal courts
routinely read their submissions liberally and interpret them to raise the strongest
arguments that they suggest. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct 594, 596,
30 L.Ed.2d 652 (1972); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Since Plaintiff
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is proceeding pro se, this Court has considered his submissions and arguments
accordingly.
Plaintiff’s first claim is that Defendant Conway violated his Fourteenth Amendment
rights by failing to protect him.

Failure to protect, however, implicates the Eighth

Amendment, not the Fourteenth. See Farmer v. Brennan, 511 U.S. 825, 828, 114 S.Ct.
1970, 128 L.Ed.2d 811 (1994). But given Plaintiff’s pro se status, this Court interprets
Plaintiff’s claim liberally and construes it to allege a violation of his Eighth Amendment
rights.
Plaintiff’s second claim is that Defendant Collier denied him his Due Process rights
by failing to effectively assist him in his disciplinary hearing, in violation of his Fourteenth
Amendment rights.
Plaintiff’s third claim is that Defendant Lavis violated his Fourteenth Amendment
Due Process rights by conducting an improper disciplinary hearing.
Plaintiff’s final claim has two parts. First, Plaintiff alleges that Defendant Kelly filed
a false Misbehavior Report against him. Second, this Court construes Plaintiff’s Amended
Complaint to raise an Eighth Amendment excessive force claim against Defendant Kelly,
based on the physical altercation outside the visitation room.
Defendants move to dismiss Plaintiff’s first claim and the first part of Plaintiff’s fourth
claim under Rule 12(b)(6) for failure to state a claim upon which relief can be granted.
A.

Motion to Dismiss Standard
Rule 12(b)(6) provides for dismissal of a complaint for “failure to state a claim upon

which relief can be granted.” Fed. R. Civ. P. 12(b)(6). When determining whether a
complaint states a claim, the court must construe the complaint liberally, accept all factual
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allegations as true, and draw all reasonable inferences in the plaintiff’s favor. ATSI
Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007); Goldstein v. Pataki,
516 F.3d 50, 56 (2d Cir. 2008). Although the complaint need not include detailed factual
allegations, the plaintiff must show the “grounds of his entitlement to relief.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007). Plaintiff’s
“[f]actual allegations must be enough to raise a right to relief above the speculative level.”
Id.; Goldstein, 516 F.3d at 56. But the Second Circuit does not interpret Twombly as
“requiring a universal standard of heightened fact pleading, but is instead requiring a
flexible ‘plausibility standard,’ which obliges a pleader to amplify a claim with some factual
allegations in those contexts where such amplification is needed to render the claim
plausible.” Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007) (emphasis in original).
Federal pleading standards are generally not stringent. See Pelman ex rel. Pelman
v. McDonald’s Corp., 396 F.3d 508, 511 (2d Cir. 2005) (describing federal pleading
requirement as “bare bones notice pleading”); Phillip v. Univ. of Rochester, 316 F.3d 291,
293 (2d Cir. 2003) (“The federal rules allow simple pleadings and rely on liberal discovery
rules and summary judgment motions to define disputed facts and issues and to dispose
of unmeritorious claims.” (quotation and citation omitted)). Rule 8(a) of the Federal Rules
of Civil Procedure requires only a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). It is necessary, however, “that the plain
statement possess enough heft to show that the pleader is entitled to relief.” Twombly, 127
S.Ct. at 1966.
In pro se actions, the United States Supreme Court has rejected the idea that the
plausibility standard requires amplification with factual allegations to render the claim
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plausible. See Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007).
In Erickson, the Supreme Court reversed the dismissal of a prisoner’s Eighth Amendment
claim, holding the court of appeals had “depart[ed] from the liberal pleading standards” of
Rule 8(a). Boykin v. KeyCorp, 521 F.3d 202, 214 (2d Cir. 2008) (quoting Erickson, 127
S.Ct. at 2200). Although the Court did not clarify when the plausibility standard requires
factual amplification, it noted that “a pro se complaint however inartfully pleaded, must be
held to less stringent standards than formal pleadings drafted by lawyers.” Erickson, 127
S.Ct at 2200 (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251
(1976)).
B.

42 U.S.C. § 1983
Civil liability is imposed under 42 U.S.C. § 1983 only 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. On its own, § 1983 does not provide
a source of substantive rights, but rather, a method for vindicating federal rights conferred
elsewhere in the federal statutes and Constitution. See Graham v. Connor, 490 U.S. 386,
393-94, 109 S.Ct. 1865, 1870, 104 L.Ed.2d 443 (1989) (quoting Baker v. McCollan, 443
U.S. 137, 145 n.3, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433 (1979)). Accordingly, as a
threshold matter in reviewing claims brought pursuant to

§ 1983, it is necessary to

precisely identify the constitutional violations alleged. See Baker, 443 U.S. at 140. Here,
Plaintiff’s various § 1983 claims are grounded in the Eighth and Fourteenth Amendments.

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C.

Plaintiff’s claims against Defendant Conway
Personal involvement in the deprivation of a federal constitutional right is the sine

qua non of liability under § 1983. See Haygood v. City of New York, 64 F.Supp. 2d 275,
280 (S.D.N.Y. 1999). Moreover, it is well settled in this Circuit that personal involvement
by defendants in cases alleging constitutional deprivations is a prerequisite to an award of
damages under § 1983. See McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977);
Richardson v. Coughlin, 101 F. Supp. 2d 127, 129 (W.D.N.Y. 2000); Pritchett v. Artuz, No.
99 Civ. 3957 (SAS), 2000 WL 4157, at *5 (S.D.N.Y. Jan. 3, 2000). The Second Circuit
construes personal involvement in this context to mean “direct participation, or failure to
remedy the alleged wrong after learning of it, or creation of a policy or custom under which
unconstitutional practices occurred, or gross negligence in managing subordinates.” Black
v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996); see also Wright v. Smith, 21 F.3d 496, 501 (2d
Cir. 1994).
Defendants assert that Plaintiff’s claims against Defendant Conway must be
dismissed for lack of personal involvement. Plaintiff contends that Defendant Conway was
personally involved because he received Plaintiff’s letter complaining about Defendant
Kelly, and then forwarded the letter to Defendant Lavis. But the fact that Plaintiff sent a
letter to Defendant Conway is insufficient to maintain a § 1983 claim against him. The
mere receipt and forwarding of a letter does not amount to the level of personal
involvement required to maintain a § 1983 claim. See Sealey v. Giltner, 116 F.3d 47, 51
(2d Cir. 1997) (holding more involvement than forwarding a letter to a hearing officer is
needed to make a supervisory figure personally responsible); Goris v. Breslin, 402 F. App’x

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582, 584 (2d Cir. 2010) (holding the supervisor’s receipt and referral of letters to other
individuals does not rise to the level of personal involvement).
Here, Plaintiff sent a letter to Defendant Conway, who allegedly forwarded it to
Defendant Lavis for investigation. This is insufficient to sustain a § 1983 claim against
Defendant Conway. Consequently, Plaintiff has failed to adequately allege Defendant
Conway’s personal involvement and his claim must therefore be dismissed.
D.

False Misbehavior Report
Plaintiff alleges that Defendant Kelly filed a false misbehavior report against him.

Defendant argues that this claim should be dismissed for failure to state a claim upon
which relief can be granted. “Prison inmates have no constitutionally guaranteed immunity
from being falsely or wrongly accused of conduct which may result in the deprivation of a
protected liberty interest.” Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986).
Therefore, the first part of Plaintiff’s fourth cause of action against Defendant Kelly that is
premised on the issuance of an allegedly false misbehavior report is dismissed.

IV. CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is granted in part and
denied in part.

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V. ORDERS
IT HEREBY IS ORDERED, that Defendants’ Motion to Dismiss (Docket No. 7) is
GRANTED in part and DENIED in part.
SO ORDERED.

Dated:

August 16, 2013
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Court

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