Watson v. Koenigsmann et al

Filing 67

REPORT AND RECOMMENDATIONS RE: 61 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM in Amended Complaint filed by Lepkowski.Objections due per 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72.Signed by Hon. Hugh B. Scott on 2/26/2018. (Copy of this Report and Recommendation mailed by first-class mail to: Jean Bernier, 29463-054, BUTNER FEDERAL MEDICAL CENTER, Inmate Mail/Parcels, P.O. BOX 1600, BUTNER, NC 27509.) (GAI)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
__________________________________
JEAN BERNIER, #29463-054,
Plaintiff,
No. 15-CV-209(RJA)(HBS)
Report and Recommendation

-vsSWEET AND LEPKOWSKI,
Defendants.
__________________________________
I.

Introduction
This case has been referred to the undersigned by Hon. Richard J. Arcara for all

pre-trial matters, including preparation of a Report and Recommendation on dispositive
motions. (Dkt. No. 37.) Currently pending before the Court is Defendant Lepkowski’s
(“Deft. Lepkowski”) motion to dismiss. (Dkt. No. 61.)
II.

Factual Background and Procedural History
Plaintiff Jean Bernier, a/k/a Charles Watson (“Plaintiff”),1 an inmate in the care and

custody of Federal Bureau of Prisons, filed this action pursuant to 42 U.S.C. § 1983,
alleging violations of his constitutional rights while he was incarcerated at Elmira
Correctional Facility (“Elmira”) under the New York State Department of Corrections and
Community Supervision (“DOCCS”) (Dkt. No. 60.) Because Plaintiff’s original complaint
(Dkt. No. 1) alleged multiple violations against various DOCCS employees not assigned
to Elmira and outside of the Western District, the Court previously granted Defendants’

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As the Court has previously acknowledged, Plaintiff began this case under the name Charles
Watson and subsequently changed his name in the caption to Jean Bernier. (Dkt. No. 49 at 1,
n.1.)
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motion to sever claims arising at Auburn and Cayuga Correctional Facilities. (Dkt. No.
50.) Plaintiff then amended his complaint (Dkt. No. 60) to allege that defendants captioned
as “ORC Sweet” and “Hearing Officer Lepkowski” retaliated against him and denied him
due process.2
The following facts are derived from the amended complaint and are assumed to
be true for the purposes of this motion.
In July of 2012, Plaintiff was served a disciplinary report authored by ORC Sweet
accusing him of a rule violation. (Dkt. No. 60, ¶ 11.) The disciplinary report “had just stated
a charge without describing any particular acts of conduct . . . Plaintiff had no notice of
exactly what actions he was defending against.” (Id., ¶ 14.)
Deft. Lepkowski conducted the disciplinary hearing sometime in early August,
2012. (Id., ¶ 11.) Two officers testified on Plaintiff’s behalf. (Id.) Plaintiff also requested
someone named Ms. Rasheena to testify at the hearing, but his request was denied by
Deft. Lepkowski because the witness did not work for DOCCS. (Id., ¶¶ 12, 13.)
Deft. Lepkowski found Plaintiff guilty and sanctioned him to 90 days in the Special
Housing Unit (“SHU”). (Id., ¶ 15.) Plaintiff subsequently served the SHU sentence at
Cayuga Correctional Facility (“Cayuga”), in S-Block, a double-celled unit. (Id., ¶ 16.) With
regard to the SHU confinement, Plaintiff alleges:
You are kept in the cell 24 hours a day. For recreation there
is a space in the back of the cell which is opened an hour a
day. This means that you never go outside and are effectively
deprived of sunshine. All personal property is prohibited
except for legal work. There are no hygiene supplies available
but for a small bar of soap on shower days. There is no access
to commissary to buy lotion and shampoo, baby oil or hair
grease. There is a limit on underwear and clothing and when
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Deft. Lepkowski filed the instant motion in lieu of answering the amended complaint.
Defendant Sweet has not yet filed an answer.
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they are washed. There is a limit on paper and envelopes and
on materials you can obtain and research from the law library.
You are shackled and handcuffed whenever you are escorted
out of the cell and the restraints are kept on even in a visit to
see medical staff or on a personal visit which is non-contact
and behind the glass.
(Id., ¶¶ 16, 17.) Plaintiff also alleges that he was “exposed to being with another individual
twenty-four hours a day and all the baggage that comes with that, conflicts and fights.”
(Id., ¶ 17.)
Plaintiff appealed the disciplinary determination, which was administratively
reversed on October 16, 2012, nine days prior to the completion of his 90-day sentence.
(Id., ¶¶ 18-19.) But, Plaintiff claims, he was not released from SHU until June, 2013, after
serving “an aggregate of eleven months in SHU.” (Id.) This claim of an aggregate eleven
months of confinement is derived from the facts set forth in the original complaint in this
action. (Dkt. No. 1.) Because Plaintiff is proceeding pro se, the Court considers both his
original and his amended complaints together for purposes of asserting his due process
claim against Deft. Lepkowski. See Little v. City of New York, 13-CV-3813, 2014 WL
4783006, at *1 (S.D.N.Y. Sept. 25, 2014).
Plaintiff was transferred to Cayuga in August, 2012, to serve his 90-day SHU
sanction. While housed at Cayuga, Plaintiff received multiple misbehavior reports for
failing to obey an order and refusing to agree to double-bunk housing. (Dkt. No. 1, ¶¶ 29,
32-36.) Plaintiff participated in three disciplinary proceedings at Cayuga, dated October
17, October 26, and November 15, 2012, after which he was sentenced to 30, 60, and
180 days of additional SHU time, respectively. (Id., ¶¶ 32-35.)

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Plaintiff then filed this action, challenging, inter alia, the disciplinary proceedings at
Elmira and Cayuga. (Dkt. Nos. 1, 60.)
Deft. Lepkowski now seeks dismissal of the claims against him on the grounds
that: (1) Plaintiff has not alleged a liberty interest of which he was deprived; (2) the
conditions of SHU were not atypical; (3) Plaintiff cannot aggregate subsequent SHU
penalties imposed by different hearing officers to establish the deprivation of a liberty
interest; (4) Plaintiff’s separate claims of due process violations with respect to his later
disciplinary hearings at Cayuga Correctional Facility were dismissed; and (5) Deft.
Lepkowski is entitled to qualified immunity. (Dkt. No. 61-1 at 6-14.)
For the reasons set forth below, the Court recommends granting Deft. Lepkowski’s
motion dismissing the claims against him.
III.

Discussion
A.

General Principles of Law

In reviewing a motion to dismiss under Rule 12(b)(6), the Court must accept the
factual allegations in the complaint as true and draw all reasonable inferences in favor of
the plaintiff. See Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005). It
need not accept as true, however, allegations that are conclusory, threadbare, and lack
specificity. Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009). To survive a motion to dismiss, “a
complaint must contain sufficient factual matter . . . ‘to state a claim to relief that is
plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). In other words, the factual allegations must permit the Court “to infer
more than the mere possibility of misconduct.” Iqbal, 556 U.S. at 679. Because Plaintiff
is proceeding pro se, the Court must “construe [the] complaint liberally and interpret it to

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raise the strongest arguments that it suggests.” Chavis v. Chappius, 618 F.3d 162, 170
(2d Cir. 2010) (citation and internal quotations omitted).
Plaintiff brings this action under 42 U.S.C. § 1983, which imposes liability on
anyone who, under color of state law, deprives a person “of any rights, privileges, or
immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. In other words, to
recover under this section, a plaintiff must show a violation of a federal constitutional or
statutory right.
B.

Atypical and Significant Hardship

A party asserting a due process claim “must establish (1) that he possessed a
liberty interest and (2) that the defendant(s) deprived him of that interest as a result of
insufficient process.” Giano v. Selsky, 238 F.3d 223, 225 (2d Cir. 2001). An inmate’s
liberty interest is implicated by prison discipline only if the discipline “imposes [an] atypical
and significant hardship on the inmate in relation to the ordinary incidents of prison life.”
Sandin v. Conner, 515 U.S. 472, 484 (1995). The duration and conditions of confinement
are factors to be considered by a court when determining whether a confinement rises to
the level of “atypical and severe hardship.” See Palmer v. Richards, 364 F.3d 60, 64 (2d
Cir. 2004). While there is no bright-line rule regarding the length of confinement in
segregation required to implicate due process, see Jenkins v. Haubert, 179 F.3d 19, 28
(2d Cir. 1999), the Second Circuit has held that confinement in restrictive housing for less
than 101 days does not constitute an atypical or significant hardship sufficient to state a
claim under Sandin. See Sealey v. Giltner, 197 F.3d 578, 589 (2d Cir. 1999) (101-day
confinement in restrictive housing unpleasant but not atypical or significant); Borcsok v.
Early, 299 Fed. Appx. 76, 78 (2d Cir. 2008) (“Even if we include the eleven days that

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[plaintiff] spent in SHU before the disciplinary hearing with the ninety days he received as
part of his penalty, the duration of his confinement was neither atypical nor significant.”);
accord Walker v. Caban, No. 08 Civ. 3025, 2008 WL 4925204, at *11 (S.D.N.Y. Nov.19,
2008) (finding 90 day period in solitary confinement, without more, did not implicate a
liberty interest under Sandin); Rivera v. Coughlin, No. 92 Civ. 3404, 1996 WL 22342, at
*5 (S.D.N.Y. Jan.22, 1996) (89 days in keeplock does not create a liberty interest).
Here, Plaintiff alleges that Deft. Lepkowski sentenced him to 90 days of SHU
confinement following the guilty verdict stemming from the August, 2012, disciplinary
hearing. (Dkt. No. 60, ¶ 15.) This, in and of itself, is not sufficient to implicate a protected
liberty interest. Nor does he allege any conditions of confinement other than those
deemed “normal” in SHU:
Under the ‘normal conditions of SHU confinement in New York
[state prison],’ the prisoner is: placed in a solitary confinement
cell, kept in his cell for 23 hours a day, permitted to exercise
in the prison yard for one hour a day, limited to two showers a
week, and denied various privileges available to general
population prisoners, such as the opportunity to work and
obtain out-of-cell schooling. Visitors [are] permitted, but the
frequency and duration [is] less than in general population.
The number of books allowed in the cell [is] also limited.
Palmer v. Richards, 364 F.3d 60, 66 n.3 (2d Cir. 2004) (citations omitted, alterations in
original). To the extent Plaintiff challenges the constitutionality of his confinement on the
basis of having a cellmate while in SHU, see Dkt. No. 60, ¶ 17, courts have rejected this
argument. See Bolton v. Goord, 992 F. Supp. 604, 607 (S.D.N.Y. 1998) (“Plaintiffs have
failed to show that they suffered an atypical and significant hardship . . . in relation to the
ordinary incidents of prison life . . . or that New York State has granted its inmates, by
regulation or statute, a protected liberty interest in being free from being placed in a

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double cell.”) (quotation omitted); see also Scott v. Gardner, 287 F. Supp. 2d 477, 494
(S.D.N.Y. 2003) (“Apart from Scott’s allegation that he was double-celled, the conditions
Scott describes of his confinement in SHU are not materially at variance with these . . . .
Confinement in a double occupancy cell may also be a part of normal SHU conditions.”);
see also, e.g., Jones v. Goord, 190 F.R.D. 103, 109 (S.D.N.Y. 1999) (practice of doublecelling inmates, standing alone, does not constitute cruel and unusual punishment under
the Eighth Amendment).
Plaintiff also attempts to state a Sandin claim based upon “an aggregate of eleven
months in SHU,” apparently arising from the subsequent disciplinary proceedings at
Cayuga, to state his due process claim. (Dkt. No. 60, ¶ 19.)
The Second Circuit has suggested that “separate SHU sentences ‘should be
aggregated for purposes of the Sandin inquiry’ when they constitute a sustained period
of confinement.” Giano, 238 F.3d at 226 (quoting Sims v. Artuz, 230 F.3d 14, 22-23 (2d
Cir. 2000)); see also Sealey v. Gitner, 197 F.3d 578, 589 (2d Cir. 1999) (requiring district
court to aggregate sanctions that caused inmate to serve consecutive time in
segregation). “Generally, it appears from Second Circuit decisions that separate SHU
sentences constitute a ‘sustained’ period of confinement when (1) they are contiguous
and (2) they either (a) were imposed by the same disciplinary hearing officer or (b) were
based on the same administrative rationale and are executed under the same conditions.”
Taylor v. Artus, No. 05-CV-0271, 2007 WL 4555932, at *8 (N.D.N.Y. Dec. 19, 2007).
The Court finds aggregation in this case inappropriate. Plaintiff’s subsequent
penalties at Cayuga, although appended to his existing SHU sentence imposed from

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Elmira, arose from unrelated events that occurred at a separate correctional facility.3
Although Plaintiff was sent to Cayuga to complete his first SHU sentence, that initial
SHU sentence stemmed from conduct that occurred at Elmira, whereas the second and
subsequent SHU sentences stemmed from conduct that occurred at Cayuga. Thus, it
cannot be said here that Plaintiff’s overlapping sentences were “simply a continuation of
his segregation.” Giano, 238 F.3d at 226 (“Giano’s segregation at Clinton was simply a
continuation of his segregation at Attica. A review of the record indicates that the two
periods of confinement were based on the same administrative rationale and that the
conditions of Giano’s confinement were, for all practical purposes, identical at both
facilities.”).
Likewise, Plaintiff’s first and subsequent sentences do not share a hearing officer
or a facility in common. See, e.g., Toliver v. Stefinik, No. 12CV00077, 2016 WL
3349316, at *8 (N.D.N.Y. June 15, 2016) (aggregating where “Plaintiff served
consecutive terms of confinement exceeding 30 days, and all of Plaintiff’s disciplinary
hearings at Shawangunk were conducted by the same individual, Defendant Gardner.”)
Nor did Deft. Lepkowski extend Plaintiff’s SHU confinement. See Sealey, 197 F.3d at
587 (“[w]herever the point is beyond which confinement in harsh conditions constitutes
atypicality, a prison official must not be permitted to extend such confinement beyond
that point without according procedural due process.”); Richardson v. Hillman, 201 F.
Supp. 2d 222, 229 (S.D.N.Y. 2001) (“Furthermore, the Second Circuit has expounded

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The rule violation that purported to occur at Elmira involved a confrontation with ORC Sweet
outside of Plaintiff’s cell. (Dkt. No. 1, ¶¶ 19-28; Dkt. No. 60, ¶¶ 9-10.) The incidents at Cayuga
all involved Plaintiff’s violation of various disciplinary rules for his refusal to share a double-cell
with another inmate. (Dkt. No. 1, ¶¶ 29-39.)
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the responsibility for issuing officers to include the entire period in SHU that a prisoner
was confined, if the officer extended the confinement period to constitute an atypical
penalty.”) (emphasis added).
Because Plaintiff cannot aggregate his subsequent penalties, he is left with an
86-day period of confinement resulting from the disciplinary hearing conducted by Deft.
Lepkowski. As stated earlier, an inmate generally does not establish an atypical and
significant hardship based on a confinement lasting less than 101 days, absent a
showing that the conditions of his confinement rise to the level of an atypical and severe
hardship. Thousand v. Annucci, No. 17CV0940, 2018 WL 882053, at *2 (N.D.N.Y. Feb.
13, 2018) (“the Second Circuit generally takes the position that confinement in a SHU,
without unusual conditions, for a period of up to 101 days will generally not constitute an
atypical hardship . . . .”). Accepting as true Plaintiff’s allegations of 23-hour solitary
confinement, loss of phone privileges, one hour of exercise per day, limited showers,
restrictions on property, law library, educational materials, and visitation, he fails to state
an atypical and significant hardship. See Jenkins v. Cordero, No. 17 CV 1592 (VB),
2018 WL 456311, at *4 (S.D.N.Y. Jan. 17, 2018) (“Plaintiff here has not alleged the
conditions of his confinement in the SHU were more severe than normal or that brief
SHU confinements were atypical.”)
Thus, Plaintiff has failed to state a claim for the violation of his constitutional
rights.

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C.

Qualified Immunity

Deft. Lepkowski argues in the alternative that he is entitled to qualified immunity.
(Dkt. No. 61-1 at 13-14.)
“Qualified immunity generally protects government officials from civil liability
“insofar as their 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). The doctrine protects public officials from liability for civil damages when
one of two conditions is satisfied: (a) the defendant’s action did not violate clearly
established law, or (b) it was objectively reasonable for the defendant to believe that his
action did not violate such law.” Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2014).
As Plaintiff fails to make the necessary threshold showing of an atypical and
significant hardship arising from his SHU confinement, he consequently fails allege a
constitutional violation. On that basis the Court need not reach Defendants’ assertion of
qualified immunity. See Aiken v. Nixon, 236 F. Supp. 2d 211, 229-30 (N.D.N.Y. 2002),
aff’d 80 Fed. Appx. 146 (2d Cir. 2003) (only if there is a constitutional violation does a
court proceed to determine whether constitutional rights were clearly established at the
time of the alleged violation); see Saucier v. Katz, 533 U.S. 194, 201 (2001) (“If no
constitutional right would have been violated were the allegations established, there is no
necessity for further inquiries concerning qualified immunity.”); overruled in part on other
grounds by Pearson v. Callahan, 555 U.S. 223 (2009).

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IV.

Conclusion
Based upon the above, it is recommended that the motion to dismiss this action

for failure to state a claim upon which relief can be granted (Dkt. No. 61) be GRANTED
and the amended complaint be dismissed with respect to Deft. Lepkowski.
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED, that this Report and Recommendation be filed with the Clerk of the
Court.
With respect to Defendants’ motions to dismiss, ANY OBJECTIONS to this Report
and Recommendation must be filed with the Clerk of this Court within fourteen (14) days
after receipt of a copy of this Report and Recommendation in accordance with the above
statute, Fed. R. Civ. Proc. 72(b) and Local Rule 72(b).
The District Court ordinarily will refuse to consider on de novo review arguments,
case law and evidentiary material which could have been, but was not, presented to the
Magistrate Judge in the first instance. See, e.g., Patterson-Leitch Co., Inc. v.
Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985, 990-91 (1st Cir. 1988).
Failure to file objections within the specified time or to request an extension
of such time waives the right to appeal the District Court’s Order. Thomas v. Arn,
474 U.S. 140 (1985); Wesolek v. Canadair Ltd., 838 F.2d 55 (2d Cir. 1988.
The parties are reminded that, pursuant to Rule 72(b) of the Local Rules for the
Western District of New York, “written objections shall specifically identify the portions of
the proposed findings and recommendations to which objection is made and the basis for
such objection and shall be supported by legal authority.” Failure to comply with the

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provisions of Rule 72(b) may result in the District Court’s refusal to consider the
objection.
Let the Clerk send a copy of this Report and Recommendation and Order to
Plaintiff and Defendants.
IT IS SO ORDERED.

/s Hugh B. Scott

.

HON. HUGH B. SCOTT
United States Magistrate Judge
Dated: February 26, 2018
Buffalo, New York

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