Caban v. Blanar et al

Filing 13

DECISION AND ORDER GRANTING Defendants' 6 Motion to Dismiss; GRANTING Plaintiff leave to file an amended complaint consistent with this decision within 45 days of the entry date of this Decision and Order; ADVISING Plaintiff that his failur e to file an amended complaint within 45 days of the entry date of this Decision and Order will result in this case proceeding only as to Plaintiff's first claim asserting a violation of the Eight Amendment, as currently alleged. Signed by William M. Skretny, United States District Judge on 10/26/2015. (MEAL) Copy mailed to Plaintiff.

OfUNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LUIS CABAN,
Plaintiff,
v.

DECISION AND ORDER
14-CV-613S

ADAM BLANAR, GLORIA L. BARLOW HARPER,
TERRENCE C. McCANN, JAMES R. MYERS,
and JONATHAN KRUGER,
Defendants.

I. INTRODUCTION
In this action, pro se plaintiff Luis Caban alleges, pursuant to 42 U.S.C. § 1983, that
Defendants violated his Eighth Amendment right to be free from cruel and unusual
punishment (excessive force) and his First and Fourteenth Amendment rights (due process
and equal protection) while he was an inmate in the custody of the New York Department
of Corrections and Community Services (“DOCCS”). Presently before this Court is
Defendants’ motion to dismiss Caban’s second and third causes of action. (Docket No.
6.) For the following reasons, Defendants’ motion is granted, and Caban will be permitted
to file an amended complaint.

II. BACKGROUND
The following facts, drawn from Caban’s complaint and the exhibits attached
thereto, are assumed true for purposes of Defendants’ motion to dismiss.
At all times relevant, Caban was an inmate at the Wende Correctional Facility.1

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Caban is now at Southport Correctional Facility. (Complaint, p. 1.)

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(Complaint, Docket No. 1, Exhibit 2, p. 14 of 32.2) Defendants are all correctional officers
at Wende. (Complaint, pp. 2–3.)
On March 22, 2012, Caban was returning from commissary in a line with several
other inmates, including an inmate named “Rogers.” (Complaint, p. 6, ¶ 1.) Rogers was
walking ahead of Caban. (Complaint, p. 6, ¶ 1.) As the group entered the D-block housing
unit, Defendant McCann began striking Rogers with his baton. (Complaint, p. 6, ¶ 1.)
Caban tried to grab Rogers “out of care and concern from further abuse.” (Complaint, p.
6, ¶ 1.) Caban was then struck in the head and knocked unconscious. (Complaint, p. 6,
¶ 1.)
While Caban was unconscious and handcuffed on the floor, Defendants Blanar,
Harper, Myers, and McCann kicked and punched him “all over his head and body.”
(Complaint, p. 6, ¶ 2.) Defendant Kruger then arrived (apparently while Caban was still
unconscious) and forcibly took a baton from one of the other defendants and yelled, “give
me this fucking stick, I’m gonna show you how to use it.” (Complaint, p. 6, ¶ 3.) Kruger
then began hitting Caban and Rogers with the baton “across the head and body area,” as
Caban and Rogers “folded themselves in a fetal position on the floor.”3 (Complaint, p. 6,
¶ 1.)
Plaintiff awoke in the Wende clinic with injuries all over his body, head, forehead,
face, back, shoulders, and wrists. (Complaint, p. 6, ¶ 4.)
After this incident, Defendants issued a fabricated misbehavior report against

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Citations to the complaint are to the page numbers generated by the CM/ECF system.

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Caban makes his allegations about what occurred while he was unconscious “upon information
and belief.” (Complaint, p. 6, ¶¶ 2–3.) The source for these allegations is not clear from the complaint.

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Caban. (Complaint, p. 7, ¶ 5 and Exhibit 3.) After a hearing and finding of guilt on charges
that he engaged in violent conduct, created a disturbance, and assaulted staff, Caban
received 60 months in the special housing unit; 60 months loss of privileges; and 12
months loss of good time. (Complaint, p. 7, ¶ 7 and Exhibit 3.) Caban’s punishment was
reduced on appeal to 24 months in the special housing unit (with 12 months suspended);
36 months loss of privileges; and 12 months loss of good time.4 (Complaint, p. 7, ¶ 8 and
Exhibit 5.) Caban also faced criminal charges, but those charges were dismissed.
(Complaint, p. 7, ¶ 6 and Exhibit 4.)
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 Caban
is proceeding pro se, this Court has considered his submissions and arguments
accordingly.
Caban’s first claim is that Defendants violated his Eighth Amendment rights by using
excessive force against him. (Complaint, p. 7, ¶¶ 10–11, 17.) Defendants do not move
against this claim.

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In the complaint, Caban explicitly “waives any and all claims related to the loss of good time.”
(Complaint, p. 7, ¶ 9.) In his affirmation in opposition to Defendants’ motion, however, Caban states that
the language barrier—Caban speaks Spanish—resulted in this mistaken waiver. (Plaintiff’s Affirmation in
Opposition, Docket No. 11, p. 9.) Instead, Caban states that “in reality what he meant was that it didn’t
matter that the hearing officer arbitrarily took away his good time because he was sentence[d] to 15 years
to life, so that taking good time credit should not apply.” (Id. at pp.9-10.) It is unclear what Caban means
by this statement, but as is discussed further on, to the extent Caban wishes to amend his complaint to
add a claim that his disciplinary proceedings did not comport with his procedural due process rights, he
will be granted leave to do so.

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Caban’s second claim is that Defendants violated his Fourteenth Amendment due
process and equal protection rights by fabricating a misbehavior report against him, which
resulted in his extended confinement in the special housing unit. (Complaint, p. 8, ¶¶ 12,
13, 18.)
Caban’s third claim is that Defendants violated his First and Fourteenth Amendment
rights by retaliating against him for “trying to pull inmate Rogers out of harms way.”
(Complaint, pp. 8–9, ¶¶ 14, 15, 18.)
Defendants move to dismiss Caban’s second and third causes of action for failure
to state a claim upon which relief can be granted.
A.

Rule 12 (b)(6)
Rule 12 (b)(6) allows dismissal of a complaint for “failure to state a claim upon which

relief can be granted.” FED. R. CIV. P. 12 (b)(6). Federal pleading standards are generally
not stringent: Rule 8 requires only a short and plain statement of a claim. FED. R. CIV. P.
8(a)(2). But the plain statement must “possess enough heft to show that the pleader is
entitled to relief.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,127 S.Ct. 1955, 1966, 167
L.Ed.2d 929 (2007).
When determining whether a complaint states a claim, the court must construe it
liberally, accept all factual 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).
Legal conclusions, however, are not afforded the same presumption of truthfulness. See
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (“the tenet
that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions”).
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“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 129 S.Ct.
at 1945 (quoting Twombly, 550 U.S. at 570). Labels, conclusions, or “a formulaic recitation
of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Facial
plausibility exists when the facts alleged allow for a reasonable inference that the
defendant is liable for the misconduct charged. Iqbal, 129 S.Ct. at 1949. The plausibility
standard is not, however, a probability requirement: the pleading must show, not merely
allege, that the pleader is entitled to relief. Id. at 1950; FED. R. CIV. P. 8(a)(2). Wellpleaded allegations in the complaint must nudge the claim “across the line from
conceivable to plausible.” Twombly, 550 U.S. at 570.
A two-pronged approach is thus used to examine the sufficiency of a complaint,
which includes “any documents that are either incorporated into the complaint by reference
or attached to the complaint as exhibits.” Blue Tree Hotels Inv. (Can.), Ltd. v. Starwood
Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004). This examination is
context specific and requires that the court draw on its judicial experience and common
sense. Iqbal, 129 S.Ct. at 1950. First, statements that are not entitled to the presumption
of truth, such as conclusory allegations, labels, and legal conclusions, are identified and
stripped away. See Iqbal, 129 S.Ct. at 1950. Second, well-pleaded, non-conclusory
factual allegations are presumed true and examined to determine whether they “plausibly
give rise to an entitlement to relief.” Id. “Where the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct,” the complaint fails to state a
claim. Id.
In pro se actions, the United States Supreme Court has rejected the idea that the
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plausibility standard requires amplification with factual allegations to render the claim
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 that 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, Caban’s
second and third claims are grounded in the First and Fourteenth Amendments.

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C.

Caban’s Second Claim
In his second claim, Caban alleges that Defendants violated his Fourteenth

Amendment due process and equal protection rights by placing him in the special housing
unit after the filing of a fabricated misbehavior report and criminal charges against him.
(Complaint, p. 8, ¶¶ 5–9, 12, 13, 18.) As presently alleged, this claim must be dismissed.
The Fourteenth Amendment provides, in pertinent part, that “[n]o State shall . . .
deprive any person of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV.
There are two broad categories of due process claims—substantive and procedural.
A substantive due process claim is based upon the deprivation of a constitutionally
protected life, liberty, or property interest. See B.D. v. DeBuono, 130 F. Supp. 2d 401,
431 (S.D.N.Y. 2000). A procedural due process claim is based upon the deprivation of a
protected life, liberty, or property interest, without notice and an opportunity to be heard.
Id. at 432-33. With respect to any due process claim—substantive or procedural—“[t]he
threshold issue is always whether the plaintiff has a property or liberty interest protected
by the Constitution.” Narumanchi v. Bd. of Trs. of Conn. State Univ., 850 F.2d 70, 72 (2d
Cir. 1988).
“A prisoner’s liberty interest is implicated by prison discipline, such as [special
housing unit] 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) (quoting Sandin v. Conner, 515 U.S. 472, 484,
115 S.Ct. 2293, 132 L.Ed.2d 418 (1995)). Confinement under normal conditions in a
special housing unit extending beyond 305 days constitutes an atypical and significant
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hardship requiring procedural due process protections. See Palmer, 364 F.3d at 65.
In Wolff v. McDonnell, the Supreme Court held that whenever an inmate is
subjected to a prison disciplinary proceeding that might result in the deprivation of a liberty
interest, prison officials must ensure that certain procedural safeguards are in place. 418
U.S. 539, 563-66, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). When an inmate may be
subjected to confinement in the special housing unit, he is entitled to the following due
process protections: “advance written notice of the charges; a fair and impartial hearing
officer; a reasonable opportunity to call witnesses and present documentary evidence; and
a written statement of the disposition, including supporting facts and reasons for the action
taken.” Smith v. Fischer, No. 14-3857, 2015 WL 5780510, at *2 (2d Cir. Oct. 5, 2015) (per
curiam) (quoting Luna v. Pico, 356 F.3d 481, 487 (2d Cir. 2004)); see also Wolff, 418 U.S.
at 563-71.
As it relates to his due process claim, Caban alleges that he was ultimately
sentenced to 12 months (365 days) in the special housing unit, which triggers due process
protections. See Palmer, 264 F.3d at 65. But Caban does not allege any constitutional
failure in the prison disciplinary proceedings. His only allegation is that Defendants filed
false charges against him; he does not allege, for example, any failures in the hearing or
appeal procedure itself that resulted in the imposition of his special housing unit
confinement. See Smith, 2015 WL 5780510, at *2.
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); see also Boddie v.
Robertson, 105 F.3d 857, 862 (2d Cir. 1997) (noting that “a prison inmate has no general
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constitutional right to be free from being falsely accused in a misbehavior report”). Thus,
because the sole basis for Caban’s due process claim is that Defendants filed a false
misbehavior report against him, he fails to state a claim upon which relief may be granted.
See Crenshaw v. Hartman, 681 F. Supp. 2d 412, 415 (W.D.N.Y. 2010) (“The law is clear
that ‘the issuance of false misbehavior reports against an inmate by corrections officers is
insufficient on its own to establish a denial of due process.’”)(quoting Sital v. Burgio, F.
Supp. 2d 355, 357 (W.D.N.Y. 2009)).
Although Caban’s current due process claim is subject to dismissal, the Second
Circuit has directed that pro se litigants be given the opportunity to amend their complaints
at least once when a liberal reading of the complaint gives any indication that a valid claim
might be stated. See Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010). In his
opposition to Defendants’ motion, Caban refers to his discipline as having been “arbitrarily”
imposed. (See Plaintiff’s Affirmation in Opposition, Docket No. 11, p. 9.) Construing
Caban’s submissions broadly, he has at least suggested that the hearing officer was not
fair and impartial, which would state a procedural due process claim. See Smith, 2015 WL
5780510, at *2.
Accordingly, this Court will dismiss Caban’s second claim (due process), but grant
him 45 days in which to file and serve an amended complaint that includes the facts
underlying not only his unchallenged first claim (Eighth Amendment), but also any
procedural due process claim concerning the disciplinary proceedings, if such a claim
exists, including the identification of the proper defendants. Caban is reminded that an
amended complaint will completely replace his initial complaint (which is why he must reassert his first claim) and must comply with the requirements of Rule 15.
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The equal protection portion of Caban’s second claim must also dismissed. The
equal protection clause of the Fourteenth Amendment “bars the government from selective
adverse treatment of individuals compared with other similarly situated individuals if such
selective treatment [is] based on impermissible considerations such as race, religion, intent
to inhibit or punish the exercise of constitutional rights, or malicious bad faith intent to injure
a person.” Bizzaro v. Miranda, 394 F.3d 82, 86 (2d Cir. 2005).
To state an equal protection claim, an inmate must allege “(1) that he or she has
been treated differently from similarly-situated inmates, and (2) that the discrimination is
based upon a constitutionally impermissible basis, such as race, religion, national origin,
or some other protected right.” Nash v. McGinnis, 585 F. Supp. 2d 455, 462 (W.D.N.Y.
2008).
Nowhere in his complaint does Caban allege that he was treated differently from a
similarly situated inmate, nor does he allege that any such difference in treatment was
based on a constitutionally impermissible reason. See Nash, 585 F. Supp. 2d at 462.
Caban’s equal protection claim must therefore be dismissed.
D.

Caban’s Third Claim
Caban’s third claim is that Defendants violated his First and Fourteenth Amendment

due process rights by retaliating against him. (Complaint, p. 8, ¶¶ 14, 15, 18.) Caban
alleges that “[t]he defendants retaliated on Inmate Rogers because he filed grievances and
in turn retaliated on plaintiff for trying to pull Inmate Rogers out of harms way.” (Complaint,
p. 8, ¶ 18.) It is unclear whether the alleged retaliation is Defendants’ use of excessive
force or the filing of a false misbehavior report, although Caban’s response to Defendants’
motion suggests it is the latter. (Plaintiff’s Affirmation in Support, Docket No. 11, p. 4 (“The
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Plaintiff further alleged that Defendants retaliated against him by falsely filing a
misbehavior reports that subjected him to administrative sanctions[.]”).)
It is well established that “retaliation against a prisoner for pursuing a grievance
violates the right to petition government for the redress of grievances guaranteed by the
First and Fourteenth Amendments and is actionable under [42 U.S.C.] § 1983.” Graham
v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996). “To state a First Amendment retaliation claim
sufficient to withstand a motion to dismiss, a plaintiff must allege ‘(1) that the speech or
conduct at issue was protected, (2) that the defendant took adverse action against the
plaintiff, and (3) that there was a causal connection between the protected speech and the
adverse action.’” Dolan v. Connolly, 794 F.3d 290, 294 (2d Cir. 2015) (quoting Espinal v.
Goord, 558 F.3d 119, 128 (2d Cir. 2009)).
Here, Caban does not allege that he engaged in any protected speech or conduct,
or that Defendants took adverse action against him because of that speech or conduct, or
that there is any connection between Caban’s speech or conduct and any adverse action.
Moreover, there is no allegation that Caban was in any way involved in whatever
grievances Rogers had filed. Instead, Caban alleges in conclusory terms that Defendants
retaliated against him because he intervened to try to protect Rogers. (Complaint, p. 9, ¶
18 (“”[Defendants] retaliated on plaintiff for trying to pull inmate Rogers out of harms way.”)
This does not state a First Amendment retaliation claim. Accordingly, Caban’s third claim
must be dismissed.
IV. CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss the second and third
claims in Caban’s complaint is granted. Caban, however, is granted 45 days to file an
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amended complaint consistent with this Decision and Order.
V. ORDERS
IT HEREBY IS ORDERED, that Defendants’ Motion to Dismiss (Docket No. 6) is
GRANTED.
FURTHER, that Plaintiff is granted leave to file an amended complaint consistent
with this decision within 45 days of the entry date of this Decision and Order.
FURTHER, that Plaintiff’s failure to file an amended complaint within 45 days of the
entry date of this Decision and Order will result in this case proceeding only as to Plaintiff’s
first claim asserting a violation of the Eight Amendment, as currently alleged.
SO ORDERED.
Dated:

October 26, 2015
Buffalo, New York

/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge

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