Pettus v. Escrow et al

Filing 21

DECISION AND ORDER denying 14 Motion for Summary Judgment; denying 19 Motion for Summary Judgment as premature. The previous grant of permission to proceed in forma pauperis is withdrawn, and Plaintiff is directed to pay the filing fee of $250.00 (the applicable filing fee at the time the action commenced), on or before February 20, 2009, or the action will be dismissed without prejudice.. Signed by Hon. Charles J. Siragusa on 1/16/09. (KAP)

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF NEW YORK

J A M E S PETTUS, P la in tif f , -v J A M E S ESGROW , et al., D e f e n d a n ts . D E C IS IO N AND ORDER 0 5 - C V -6 3 8 2 CJS

T h is is an action pursuant to 42 U.S.C. § 1983, in which Plaintiff, a prison inmate, a lle g e s that Defendants, employees of the New York State Department of Correctional S e rv ic e s ("DOCS") violated his federal constitutional rights. Plaintiff has sued the following tw e lv e individuals: 1) Donald Selsky ("Selsky"), Director of DOCS's Special Housing/Inmate D is c ip lin a ry Program; 2) Lucien J. Leclaire, Jr. ("Leclaire"), DOCS Deputy Commissioner of C o rre c tio n a l Facilities; 3) Calvin W e s t ("W e s t"), Superintendent of Elmira Correctional F a c ility ("Elmira"); 4) Captain W e n d e rlic h ("W e n d e rlic h ") , a corrections captain at Elmira; 5) Lieutenant Hughes ("Hughes"), a corrections lieutenant at Elmira; 6) Lieutenant Sirois ("S iro is "), a corrections lieutenant at Elmira; 7) Lieutenant W illis ("W illis " ) , a corrections lie u te n a n t at Elmira; 8) Sergeant Gilboy ("Gilboy"), a corrections sergeant at Elmira; 9) J.P. C u n n in g h a m ("Cunningham"), a corrections officer at Elmira; 10) James Esgrow ("Esgrow"), a hearing officer at Elmira; 11) Superintendent Corcorcan ("Corcoran"), Superintendent of C a yu g a Correctional Facility ("Cayuga"); and 12) Lt. McGeever, a corrections lieutenant at C a yu g a . Now before the Court are Defendants' summary judgment motion [#14] and Plaintiff's c r o s s - m o tio n for the same relief [#19]. For the reasons that follow, the applications are d e n ie d as premature, the previous grant of permission to allow Plaintiff to proceed in forma

p a u p e ris is withdrawn, and Plaintiff is directed to pay the filing fee of $250.00 (the applicable filin g fee at the time the action commenced), on or before February 20, 2009 or the action w ill be dismissed without prejudice. BACKGROUND U n le s s otherwise noted the following are the undisputed facts of this action. On F e b ru a ry 11, 2004, while Plaintiff was confined at Cayuga, a Corrections Officer Laboon (" L a b o o n ") issued Plaintiff a misbehavior report, charging him with making false statements a n d being out of place. Defendant McGeever was designated to conduct a Tier II

d is c ip lin a ry hearing on the charges. At the hearing, Laboon's and Plaintiff's testimony e s ta b lis h e d the following facts: Plaintiff asked Laboon for permission to leave his usual p ro g ra m m in g in the F-2 dorm to visit the law library, and Laboon agreed. Laboon

s u b s e q u e n tly called the law library, and learned that Plaintiff was not there. Instead, Plaintiff w a s in the gym, waiting to obtain a haircut. According to Plaintiff, he had gone to the law lib ra ry to speak to Corrections Officer Cuddeback ("Cuddeback"), but upon learning that C u d d e b a ck was not there, he instead went to get a haircut. W h e n he became aware that P la in tif f was not at the law library, Laboon contacted the gym and directed Plaintiff to return to the F-2 dorm. On his way back to the dorm, Plaintiff stopped at the law library and spoke w ith Cuddeback. Laboon subsequently issued the misbehavior report charging Plaintiff with m a k in g a false statement and being out of place. During the first day of the hearing, Plaintiff d id not indicate that he asked Laboon for permission to go anywhere besides the law library. (P la in tiff's Cross-motion [#19], Exhibits 24-25, 39, 42-44). However, on the second day of th e hearing, Plaintiff stated that he told Laboon that he was going to the law library and the

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g ym . (Id., Ex. 48). Plaintiff further indicated that when he signed out of the dorm, he wrote in the call-out book that he was going to both the law library and the gym. Later during the h e a r in g , Plaintiff asked to call a Sergeant Locastro as a witness, and in that regard, Plaintiff in itia lly stated that he needed Locastro to testify that Plaintiff had written in the sign-out book th a t he was going to both the law library and the gym. (Plaintiff's Cross-motion [#19] Ex. 26, 2 9 ). Subsequently, Plaintiff stated that Locastro could testify regarding Plaintiff's statements to Laboon upon returning to the F-2 dorm. (Id., Ex.45). However, McGeever denied the re q u e s t to call Locastro as a witness, stating that his testimony would be irrelevant, and that L o c a s tr o had no "direct knowledge of what happened when [Laboon] let ya out." [sic] (Id.; s e e also Ex. 46). McGeever found Plaintiff guilty of both charges, stating, in relevant part, th a t "after hearing all testimony this Hearing Officer feels that Pettus did mislead CO Laboon to get to the barbershop." (Id., Ex. 51). McGeever sentenced Plaintiff to twenty-one days in k e e p lo c k . Plaintiff maintains that pursuant to DOCS regulations, 7 NYCRR 253, he should h a v e served such sentence in his cell, instead of in the Special Housing Unit ("SHU").1 P la in tif f , who was subsequently transferred to Elmira, commenced a civil action a g a in s t McGeever in the U.S. District Court for the Northern District of New York. During d is c o v e r y in that action, the Office of the New York State Attorney General provided Plaintiff w ith a transcript of the tier disciplinary hearing over which McGeever presided. Upon

However, 7 NYCRR § 253.7 specifically provides that such a keeplock sentence m a y be served in th e SHU: "Upon affirm in g a charge, the hearing officer m a y im p o s e one or m o r e of the following penalties . . . (iii) confinem e n t to a cell or room continuously or to a special housing unit under keeplock admission or o n certain days during certain hours for a period of up to 30 days (see Chapter VI, Part 301, section 301.6)." ( E m p h a s is added).
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re c e iv in g the transcript, Plaintiff wrote a number of derogatory comments in the margins, w h ic h were directed at McGeever. For example, Plaintiff wrote: H o w `STUPID' can one be. Can you say `mindless moron' who should not p re s id e over any hearing - period!!!!! I was find [sic] guilty because `I am B la c k .' *** R e p e a t after me Mr. McGeever Sir. `I am a racist and should not be presiding o v e r any hearings concerning inmates of color.' Say that, sir, 100,000 times, th a t what I will be requesting from the courts in compensation. You have been d u ly notified. Stay tuned. *** C a n you say `mindless moron' and `racist' - very simple. Here's the proof. S e e ya in court. *** Yo u tried very hard for me to become loud and disorderly, however, you failed. N o w I will be questioning you on the witness stand in federal court. I will be r e l e n tle s s ! ! ! !! (E sg ro w Declaration [#16], Ex. A). On or about May 2, 2005, Plaintiff mailed the transcript w ith his added comments to the Inmate Records office at Cayuga with a note stating, " P l e a s e make sure Lt. McGeever and Sup't Corcoran get a copy of these transcripts." (Id.) U p o n receiving the transcript, officials at Cayuga notified officials at Elmira. S p e c ific a lly, officials at Cayuga faxed four pages of the transcript, containing Plaintiff's h a n d w r itte n comments, to Elmira. Subsequently, Defendant Gilboy issued Plaintiff a

m is b e h a v io r report, charging him with "harassment" and "facility correspondence violation." T h e latter charge accused Plaintiff of falsely designating the transcript and letter as "legal m a il." The charges were classified as Tier III violations, which Plaintiff maintains was e r ro n e o u s , since the charges did not involve serious conduct. (Complaint [#1] at 3) ("There w a s no assault on staff, serious attack on other inmates, weapons possession or possession o f illegal drugs."). Defendant W e s t designated Defendant Esgrow to conduct the hearing.

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D u rin g the hearing, Plaintiff admitted that he had written the comments on the transcript and s e n t them to McGeever and Corcoran. However, Plaintiff maintained that he was innocent o f harassment, since he had not engaged in a pattern of harassment. According to Plaintiff, h a ra s s m e n t requires "repeated attacks to frustrate, annoy, torment, etc." (Complaint [#1] at 5 ) (emphasis in original). Plaintiff also argued that he was entitled to send the package as "le g a l mail," since he had received the transcript from the Attorney General's office. (Id. at 3 ) ("[T]ranscipts are confidential and privilege[d] thus legal mail."). Gilboy and Plaintiff te s tifie d at the hearing. During Gilboy's testimony, Esgrow denied Plaintiff's request to ask s e v e ra l questions, finding them irrelevant. Plaintiff asked to have a number of other

w itn e ss e s testify, including McGeever and Corcoran. In that regard, Plaintiff stated that he w a n te d McGeever to testify to the fact that Plaintiff had commenced a lawsuit against him, a n d that he wanted Corcoran to testify to the fact that Plaintiff had mailed an entire hearing tra n sc rip t, of which only four pages contained derogatory comments. (Esgrow Declaration [# 1 6 ], Ex. C). Esgrow denied the requests, finding that such testimony would not be re le v a n t. At the hearing, Plaintiff requested assistance in presenting a defense, but Esgrow in fo rm e d him that he was not entitled to such assistance, since he was released in general p o p u la tio n pending the conclusion of the hearing. (Id. at 2). On May 31, 2005, Esgrow found P la in tiff guilty of both charges, and sentenced him to, inter alia, six months in the SHU, with fo u r months suspended. Plaintiff appealed, and on July 13, 2005, Selsky affirmed the c o n v ic tio n and sentence. (Id., Ex. D). O n May 25, 2005, while the above Tier III hearing was still pending, Defendant C u n n in g h a m issued Plaintiff a misbehavior report, charging him with three infractions:

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re fu s in g a direct order, being out of place and "movement regulation violation." Apparently, C u n n in g h a m issued Plaintiff the misbehavior report after Plaintiff failed to comply with a d ire c t order. However, Plaintiff contends that he did not hear Cunningham's order, because h e is deaf in one ear. Plaintiff was placed in keeplock status pending the disposition of the c h a rg e s , a decision which Plaintiff attributes to both Cunningham and Defendant Sirois. (C o m p la in t [#1], June 30, 2005 addendum at 3-4). Defendant W illis presided over a Tier II d is c ip lin a ry hearing of the charges. On June 2, 2005, W illis found Plaintiff guilty, and s e n te n ce d him to 21 days SHU confinement. However, because Plaintiff had been found g u ilty of the Tier III infraction on May 31, 2005, and was already required to serve a twom o n th sentence for that conviction, W illis directed that Plaintiff's 21 sentence would run from J u ly 31, 2005 until August 20, 2005. Plaintiff contends that this calculation was erroneous, b e ca u se it did not credit him for the time that he spent in keeplock status pending the o u tc o m e of the hearing. Plaintiff appealed, and on June 6, 2005, Defendant W e n d e rlic h a ff irm e d the conviction and sentence. On July 22, 2005, Plaintiff commenced this action. Plaintiff generally alleges that D e fe n d a n ts conspired to violate his rights under the First, Fourth, Sixth and Fourteenth A m e n d m e n ts , in order to retaliate against him for bringing his lawsuit against McGeever. M o re specifically, Plaintiff alleges the following: 1) McGeever notified officials at Elmira that P la in tiff had sent the harassing document (transcript with Plaintiff's comments), and in s tru c te d them to "put Plaintiff in his place"; 2) Corcoran faxed officials at Elmira only four p a g e s of the 35-page document; 3) Gilboy issued a false misbehavior report; 4) Hughes misc la s s ifie d the charges in the misbehavior report as Tier III violations, the most serious type

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o f disciplinary infraction; 5) W e s t denied Plaintiff's request to personally preside over the tier h e a rin g , and instead designated Esgrow, knowing that Esgrow was racist; 6) Esgrow denied P la in tiff `s rights at the tier hearing, by denying him the opportunity to call witnesses and ask q u e s tio n s , and by imposing a harsh and illegal sentence; 7) Cunningham issued Plaintiff a fa ls e misbehavior report and improperly placed him in keeplock without a hearing; 8) Sirois p la c e d Plaintiff in keeplock without a hearing; 9) W illis denied Plaintiff his rights at the Tier II hearing and imposed an improper sentence; and 10) W e n d e rlic h improperly affirmed the T ie r II conviction and sentence; 11) Leclaire "neglected his duties as the person who reviews a p p e a ls of Tier III's" [sic] by affirming Plaintiff's Tier III conviction; and 12) Selsky improperly a ffirm e d the Tier III conviction.2 In the Complaint, Plaintiff also alleges that he suffers from the following medical c o n d itio n s: vertigo, Meniere's disease (an inner-ear disorder that can affect hearing and b a la n ce ), and tinnitus. Plaintiff submitted medical records indicating that since 2003, he has s u ffe re d from tinnitus and vertigo, which cause him to periodically feel dizzy and vomit. At le a st since 2003, Plaintiff has also complained of low back pain, for which he has received p a in medication. (See, Complaint, Medical chart entries dated October 30, 2003 ("[Inmate] s a ys condition is getting worse; says he lost his balance and fell backwards hurting his back o n Tues 10/28[/03]"); October 31, 2003 ("low back pain - [inmate] still [complaining of] pain [le ft] iliac area- states he fell on Tuesday 10/28/03."); and November 6, 2003). On May 7,

Attached to the com p la in t were, inter alia, the following docum e n ts concerning Leclaire and/or Selsky: 1 ) a letter, dated June 27, 2005, from Leclaire to Plaintiff, responding to a letter which Plaintiff had written o b je c tin g to being placed in keeplock pending the hearing on the May 25, 2005 m is b e h a v io r report, advising P la in tif f that W e n d e rlic h had already affirm e d the hearing outcom e and that no further appeal was available; a n d 2) a letter, dated June 28, 2005, from Leclaire to Plaintiff, inform in g Plaintiff that Leclaire had forwarded a letter from Plaintiff, concerning the Tier III hearing, to Selsky, who was considering Plaintiff's appeal.

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2 0 0 4 , Plaintiff again claimed that he injured his lower back when he fell in his cell. (C o m p la in t, Medical chart entry dated May 17, 2004). Medical staff gave Plaintiff Motrin and o rd e re d an x-ray of his lumbo-sacral spine. (Id.). On February 10, 2005, Plaintiff wrote to D r . Canfield, a DOCS physician, and stated, in relevant part, "My tinnitus condition has im p a ir e d my daily activities, causing me to fall on four (4) different occasions, causing injury to my back." (Complaint, Exhibit 30). DOCS medical staff has provided Plaintiff with

m e d ic a ti o n s , including anti-vertigo medicine, motrin and floricet , have referred him to m e d ic a l specialists several times, and have obtained x-rays and other diagnostic testing. N e v e rth e le s s , in his Complaint, Plaintiff states, in relevant part, that his medical condition p la c e s him in imminent danger: [P la in tiff] suffers from vertigo, Meniere's and tinnitus diseases. Plaintiff has fell a n d injured his back and received no medical attention because of keeplo c k e d status and was not afforded an escort to the hospital. Plaintiff has hit h is head three times on three different occasions and [received] no medical a tte n tio n , because of keep-locked status. Plaintiff is being denied medical a tte n tion and medicine and worries he may die in his cell because of dizzy s p e lls and black-outs. *** N o w they will place me in SHU where I will be completely isolated, and [I] fear fo r my safety and health. I may even die. I am currently keep-locked and c o n tin u e to be denied proper medical care. ( C o m p la in t, handwritten addendum at 1-2). A lo n g with his Complaint, Plaintiff submitted an application to proceed in forma p a u p e ris . The Court initially denied the application pursuant to 28 U.S.C. § 1915(g), since P la in tiff had at least four prior lawsuits dismissed under the "three strikes rule." See, 28 U .S .C . § § 1915(e) & (g). The Court noted in its decision that the "three strikes provision" d o e s not apply where an inmate alleges that he is in imminent harm of serious physical

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in ju r y. However, the Court concluded that Plaintiff had made no such allegation. The Court a ls o noted that Plaintiff's medical complaints were then already the subject of another la w s u it. Plaintiff appealed, and the Second Circuit Court of Appeals remanded the matter to this Court "for determination of whether Pettus's complaint, which asserts that he faces im m in e n t danger of physical injury due to his alleged receipt of inadequate medical treatment a n d care, falls within the exception to the `three strikes' provision of 28 U.S.C. § 1915(g)." (S e c o n d Circuit Mandate [#8]). On remand, the Court granted Plaintiff's application to p ro c e e d in forma pauperis, finding that his allegations of imminent danger "f[e]ll within the e x c e p tio n to the `three strikes' provision of 28 U.S.C. § 1915(g)." (Decision and Order [#9]). S u b s e q u e n tly, Defendants filed the subject summary judgment motion [#14], and P la in tiff filed the subject cross-motion for summary judgment [#19]. One of the arguments ra is e d by Defendants is that the Court should revoke Plaintiff's poor-person status. ( D e f e n d a n ts ' Memo of Law [#18] at 1-2, 6-7). In response, Plaintiff contends that the Court s h o u ld not revisit the issue of imminent danger. (Plaintiff's Cross-motion [#19] at 3). DISCUSSION P la in tiff has had more than three actions dismissed for the grounds delineated in 28 U .S .C . § 1915(e)(2)(B) and 1915A(a) ­ that the action (i) is frivolous or malicious; (ii) fails to s ta te a claim upon which relief may be granted; or (iii) seeks monetary relief against a d e fe n d a n t who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(a); see a ls o Abbas v. Dixon, 480 F.3d 636 (2d Cir. 2007); Pettus v. Morgenthau, 05-CV-6598Fe (W .D .N .Y. Jan. 12, 2007) (Arcara, C.J.) (Unpublished) (Discussing Plaintiff's previously d is m is s e d cases). W h e re a prisoner seeks to proceed in forma pauperis, but has had more

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th a n three actions dismissed on these grounds, permission to proceed in forma pauperis m u s t be denied "unless the prisoner is under imminent danger of serious physical injury." 2 8 U.S.C. § 1915(g). However, where an inmate alleges such "imminent danger," there must b e some nexus between the claims in the Complaint and the allegation of imminent danger. S e e , Pettus v. Morgenthau, 05-CV-6598Fe at 11 ("Plaintiff is straining to assert that the c o m p la in e d -o f actions of all these defendants form a straight line of cause and effect to the d a n g e rs he fears. Nevertheless, the claims against these defendants are simply too far re m o v e d from the alleged imminent dangers to warrant an exception to the `three strike' rule in this action."); see also, Id. at 13 ("W h e re there is no nexus between the allegations and a defendant or claim in the action, the statements do not give rise to a claim that the plaintiff is facing imminent danger of serious physical injury for the action.") (citing McNeil v. U.S., N o . 5:05CV0773(NAM)(GJD), 5:05CV0774(NAM)(GJD), 2005 W L 3088698 at *2 (N.D.N.Y. N o v . 17, 2005)). In this case, upon remand from the Second Circuit, the Court initially concluded that th e re was a nexus between the claims in the Complaint and the allegations of imminent d a n g e r due to medical ailments. However, that was because Plaintiff worded his Complaint in a manner calculated to make it appear that such a nexus existed. Upon more carefully re v ie w in g the Complaint and the parties' summary judgment motions, it is now clear that P la in tiff's long-standing medical complaints have nothing to do with the Defendants or claims in this action. In that regard, Plaintiff is not suing any doctors or medical providers in this a c tio n , nor is there any indication that any of the Defendants was personally involved in P la in tiff's medical care. Nor, for that matter, is there any indication that Plaintiff's medical

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c o n d itio n posed any imminent danger to him at the time he commenced this action. To the c o n tra r y, Plaintiff's submissions establish that his medical conditions have existed for years, a n d that he has received medical care. Instead, Plaintiff asserts a convoluted theory, in w h ic h Defendants are connected to his medical condition because they were involved in his d is c ip lin a r y hearings, which resulted in him being placed in keeplock and SHU, where he a lle g e d ly is unable to receive medical care. However, to the extent that Plaintiff is

s u g g e s tin g that DOCS inmates housed in keeplock and SHU have no access to medical c a re , his claim is frivolous. In any event, Plaintiff has not shown that any Defendant in this a c tio n denied him medical care while he was in keeplock or SHU. Consequently, Plaintiff is not entitled to proceed in forma pauperis in this action. C O N C L U S IO N D e fe n d a n ts' summary judgment motion [#14] and Plaintiff's cross-motion for the same re lie f [#19] are denied as premature. The previous grant of permission to proceed in forma p a u p e ris is withdrawn, and Plaintiff is directed to pay the filing fee of $250.00 (the applicable filin g fee at the time the action commenced), on or before February 20, 2009 or the action w ill be dismissed without prejudice. S o Ordered. Dated: J a n u a ry 16, 2009 R o c h e s te r , New York /s/ Charles J. Siragusa CHARLES J. SIRAGUSA United States District Judge

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