James v. Poole et al

Filing 59

-CLERK TO FOLLOW UP- DECISION AND ORDER granting 47 Motion to Dismiss; denying 57 Motion to set a trial date as moot. (Clerk to close case.). Signed by Hon. Michael A. Telesca on 1/9/13. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

MARK JAMES,
Plaintiff,
DECISION and ORDER
No. 06-CV-6007(MAT)

-vsTHOMAS POOLE, Superintendent, Five
Points Correctional Facility;
GIANCOLA, Facility Sgt.; W.
FENNESSY, Food Service Admin.; B.
SHEFTIC, Corr. Officer; and THOMAS
EAGAN, C.O.R.C. Grievance Dir.,
Defendants.

I.

Introduction
Plaintiff Mark James (“James” or “Plaintiff”), proceeding pro

se, instituted this action pursuant to 42 U.S.C. § 1983 against the
above-named
violations

defendants
that

Correctional

with

occurred

Facility

regard

while

(“Five

he

to
was

Points”).

alleged
housed

constitutional
at

Five

Defendants

Points

conducted

Plaintiff’s deposition, and the parties have engaged in limited
written discovery.
On May 19, 2010, Defendants moved to dismiss the Complaint
(Dkt #47) pursuant to Federal Rule of Civil Procedure (“F.R.C.P.”)
Rule 12(b)(6). James, in responding to the motion (Dkt #52),
requested that the Court convert the motion to one for summary
judgment in his favor pursuant to F.R.C.P. 56(c). On November 15,
2011, James filed a motion to set a trial date (Dkt #57).

This matter was transferred to the undersigned on December 17,
2012

(Dkt

#58).

For

the

reasons

that

follow,

Complaint

is

dismissed.
II.

Factual Background
Plaintiff

describes himself as

a

“Black-African American

follower of the ‘Jewish Faith.’” Complaint (“Compl.”) at 4 (Dkt #52_. He states that upon entering Five Points Correctional Facility
on June 9, 2005, he followed the proper procedure to be placed upon
the Kosherm, or “Cold Alternative”, meal plan. About a month later,
he noticed that “the meals were being incorrectly prepared and
spoiled food was placed in the trays.” Id. at 3. He complained to
Deputy Superintendent Brown (not a named defendant), and received
a response from W. Fennessy, Food Service Administrator (“F.S.A.
Fennessy”), dated August 10, 2005, informing Plaintiff that he had
received a copy of Plaintiff’s grievance. Fennessy stated as
follows:
The Cold Alternative meals are prepared daily by inmate
workers. We use a variety of meats in the Cold
Alternative
meals.
Your
concerns
of
missing
or
rotten/spoiled items should be addressed with your
gallery officer and if necessary with the cook
supervising the meal. Any future problems with your meals
can be directed to the Food Service department to quickly
resolve these problems.
Comp., Ex. (AA1) (Dkt #5-2).
Plaintiff states that after registering his complaints about
his meals, he was “‘stalked’ in the mess hall (Dining room B), by
Officer B. Sheftic on August 22, 2005.” Compl. at 4 (Dkt #5-2).
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Plaintiff asserts that two days after he was “stalked”,
Corrections Officer (“C.O.”) Sheftic searched his cell, threatened
him with physical harm, and confiscated his legal paper work and
personal items. Id. According to Plaintiff, C.O. Sheftic told him
that he “should stop writing grievances.” Id. Plaintiff then filed
a grievance on August 25, 2005, against C.O. Sheftic. Facility
Sergeant

(“F.S.”)

Giancola

was

assigned

to

investigate

the

grievance. Plaintiff accuses F.S. Giancola of failing to “follow up
on any of the statements [he] made . . . or the evidence of
harassment and discrimination . . . presented to him.” Id.
Eventually, Plaintiff appealed to the Central Office Review
Committee (“CORC”), but CORC Director Thomas Eagan “failed to
initiate

a

proper

investigation

.

.

.

and

affirmed

the

Superintendent’s denial of [P]laintiff’s grievances.” Id.
III. Motions to Dismiss and Motions for Summary Judgment
A.

F.R.C.P. 12(b)(6) Motions to Dismiss

Defendant initially moves to dismiss the Amended Complaint
pursuant to F.R.C.P. 12(b)(6). On such a motion, the reviewing
court must accept as true all of the well pleaded facts and
consider those facts in the light most favorable to the plaintiff.
L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 430 (2d Cir.
2011) (citation omitted). The same standards apply to a Rule 12(c)
motion for judgment on the pleadings Id. In deciding motions
pursuant

to

F.R.C.P.

12,

the

Court

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may

consider

documents

referenced

in

the

complaint

and

documents

that

are

in

the

plaintiff’s possession or that the plaintiff knew of and relied
upon in his suit. Brass v. American Film Technologies, Inc., 987
F.2d 142, 150 (2d Cir. 1993) (citation omitted).
B.

Conversion to F.R.C.P 56 Motion for Summary Judgment

Plaintiff requests that this Court convert the motion to one
for summary

judgment

pursuant

to

F.R.C.P. 56.

In

general,

a

district court should give parties notice of its intent to convert
a motion to dismiss into a motion for summary judgment. Green v.
Doukas, No. 99 Civ. 7733, 2000 WL 236471, at *2, 205 F.3d 1322
(2d Cir. 2000). However, under certain circumstances, a court may
convert a motion without giving explicit notice. Id. “The essential
inquiry is whether the [opposing party] should reasonably have
recognized the possibility that the motion might be converted to
one for summary judgment or was taken by surprise and deprived of
a reasonable opportunity to meet facts outside the pleading.” Id.
(quoting In re G. & A. Books, Inc., 770 F.2d 288, 294-95 (2d Cir.
1985)).

Furthermore,

“[i]f

both

parties

submit

extrinsic

material-or even if the moving party alone submits extrinsic
material-the opposing party may be deemed to have adequate notice
that the motion might be converted.” Green, 2000 WL 236471, at *2,
205 F.3d 1322.
In response to the motion to dismiss, Plaintiff made an
explicit request to this Court to convert the motion to one for

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summary judgment in the event that the Court finds dismissal under
12(b)(6) inappropriate, and Defendants did not object to this
request.

Plaintiff

also

submitted

a

“Statement

of

Facts”

in

opposition to Defendants’ motion. Because Defendants had adequate
notice of Plaintiff’s alternative motion, the motion to dismiss
will be converted to one for summary judgment pursuant to F.R.C.P.
56. See United States ex rel. Phipps v. Comprehensive Cmty. Dev.
Corp., 152 F. Supp.2d. 443, 449 n. 2 (S.D.N.Y. 2001) (“Because the
Moving Defendants specifically moved in the alternative for partial
summary judgment pursuant to Rule 56, Phipps had adequate notice of
the motion and the possibility that facts outside the pleadings
would be considered on the issue of whether the Court had subject
matter jurisdiction.”).
A motion for summary judgment pursuant to F.R.C.P. 56(c) may
be

granted

“if

interrogatories,

the
and

pleadings,

admissions

on

depositions,
file,

answers

together

with

to
the

affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.” FED. R. CIV. P. 56(c). The burden rests on the
moving party to demonstrate the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In deciding whether summary judgment is appropriate, the court
resolves

all

ambiguities

and

draws

all

permissible

factual

inferences against the movant. Anderson v. Liberty Lobby, Inc., 477

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U.S. 242, 255 (1986). Summary judgment is warranted when the
nonmovant has no evidentiary support for an essential element on
which it bears the burden of proof. Celotex, 477 U.S. at 322–23;
see also Silver v. City Univ. of N.Y., 947 F.2d 1021, 1022 (2d Cir.
1991). The “mere existence of a scintilla of evidence” supporting
the non-moving party’s cause is insufficient. Anderson, 477 U.S. at
252. The non-moving party may not rely on evidence that is merely
colorable, conclusory, or speculative but must come forward with
“concrete evidence from which a reasonable jury could return a
verdict in [his] favor.” Id. at 256.
IV.

General Legal Principles
In order to state a claim under 42 U.S.C. § 1983, the

plaintiff

must

establish

the

following

elements:

(1)

conduct

attributable at least in part to a person acting under color of
state law, and (2) deprivation, as the result of the challenged
conduct,

of

a

right,

privilege,

or

immunity

secured

by

the

Constitution or laws of the United States. Dwares v. City of New
York, 985 F.2d 94, 98 (2d Cir. 1993). In addition, the § 1983
plaintiff must adequately demonstrate “personal involvement of
defendants

in

alleged

Constitutional

deprivations.”

Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).

Colon

v.

“Personal involvement

of a supervisory official may be established ‘by evidence that: (1)
the [official] participated directly in the alleged constitutional
violation,

(2)

the

[official],

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after

being

informed

of

the

violation through a report or appeal, failed to remedy the wrong,
(3)

the

[official]

created

a

policy

or

custom

under

which

unconstitutional practices occurred, or allowed the continuance of
such a policy or custom, (4) the [official] was grossly negligent
in supervising subordinates who committed the wrongful acts, or
(5) the [official] exhibited deliberate indifference to the rights
of [others] by failing to act on information indicating that
unconstitutional

acts

were

occurring.’”

Johnson

v.

Newburgh

Enlarged School Dist., 239 F.3d 246, 254 (2d Cir. 2001) (quoting
Colon, 58 F.3d at 873) (alterations in original)).
V.

Discussion
A.

First Cause of Action: Conspiracy

The first cause of action asserted by James is “‘Conspiracy
under Sect. 1983.” Dkt #5-2 at 8. As James has not specified which
individual defendants participated in the alleged conspiracy, the
Court has assumed that all named defendants were involved. The
Court also presumes that James intended to assert his cause of
action under

42

U.S.C.

§§

1985(3)

and 1986.

Section

1985(3)

provides in relevant part as follows:
If two or more persons in any State or Territory conspire
. . . for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal
protection of the laws, or of equal privileges and
immunities under the laws; . . . if one or more persons
. . . do, or cause to be done, any act in furtherance of
the object of such conspiracy, whereby another is ...
deprived of having and exercising any right or privilege
of a citizen of the United States, the party so injured

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or deprived may have an action for the recovery of
damages. . . .
42 U.S.C. § 1985(3). “The conspiracy must be motivated by racial or
related class-based discriminatory animus.” Graham v. Henderson, 89
F.3d 75, 82 (2d Cir. 1996) (citing, inter alia, United Bhd. of
Carpenters, Local 610 v. Scott, 463 U.S. 825, 835-37 (1983)).
Section 1986 of title 42 U.S.C. imposes liability on an individual
who has knowledge of discrimination prohibited under § 1985.
Graham, 89 F.3d at 82. “Hence, a § 1986 claim is contingent on a
valid § 1985 claim.” Id. (citation omitted).
As

discussed

below,

Plaintiff

has

not

established

any

violations of his constitutional rights by Defendants. A fortiori,
his claim that Defendants conspired to violate his constitutional
rights fails as a matter of law.
B.

Second Cause of Action: “42 U.S.C. Sect. 1985”

Although Plaintiff cites the conspiracy statute, 42 U.S.C.
§ 1985, in the heading for the

second cause of action, the

allegations do not state a claim for a violation of that statute.
Plaintiff

simply

asserts

that

all

Defendants

“harass[ed]

and

discriminate[d] against based on his (Race, Color and Religion) at
the time of plaintiff’s complaints and grievances against the
defendants.” Dkt #5-2 at 8. This cause of action is essentially a
aggregation

or

summary

of

various

allegations

in

Plaintiff’s

Complaint, and does not state an individual legal theory. However,
the Court has construed the allegations in the Complaint and
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Plaintiff’s deposition testimony broadly, so as to raise the
strongest claims possible. Nevertheless, the Court can discern to
constitutional violations redressable under § 1983, as discussed
below.
1.
When

“Stalking” by C.O. Sheftic

asked to

elaborate

on

his

claim

that

C.O.

Sheftic

“stalked” him, Plaintiff testified that, after he complained about
receiving spoiled food in his meal trays, C.O. Sheftic stood over
him for about fifteen and stared at him while he ate his meal. See
Deposition of Mark James (“Pl’s Dep.”) at 84 (Dkt #36-4). Plaintiff
does not allege that C.O. Sheftic made physical contact with him or
threatened to harm him in any way. The “staring” incident is the
sole allegation in support of Plaintiff’s claim of “stalking” by
C.O. Sheftic. As such, James fails to allege a cognizable injury.
See,

e.g.,

Purcell

v.

Coughlin,

790

F.2d

263,

265

(2d

Cir.

1996)(“The claim that a prison guard called Purcell names also did
not allege any appreciable injury and was properly dismissed.”);
see also Petty v. Goord, No. 00 Civ. 803(JSR), 2008 WL 2604809, at
*5 (S.D.N.Y. June 25, 2008) (verbal harassment related to inmate’s
HIV-positive

status

did

not

state

a

claim

under

the

Eighth

Amendment); Davidson v. Tesla, No. 06 Civ. 861, 2008 WL 410584, at
*4 (D. Conn. Feb. 13, 2008) (no constitutional violation based on
officer acting in an “angry, hostile, aggressive and belligerent
manner”).

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2.

Inadequate Investigation

Plaintiff asserts that F.S. Giancola conducted an inadequate
investigation into his grievances and failed to consider what
Plaintiff characterizes as considerable evidence of harassment and
discrimination. See Dkt #5-2, ¶ 2. He also asserts that CORC
Director Eagan and Superintendent Poole made only a “cursory”
investigation of his grievances and that their decisions denying
him relief were “arbitrary and capricious.” Id., ¶ 5.
It

is

well-established

that

a

prison

inmate

has

no

constitutional right of access to an internal grievance process, or
to an investigation of his grievance that he deems adequate. See,
e.g.,

Rhodes

v.

Hoy,

No.

05-CV-836,

2007

WL

1343649,

at

*6

(N.D.N.Y. May 5, 2007) (noting that inmates have “no constitutional
right of access to the established inmate grievance program”);
Davis v. Buffardi, No. 01 CV0285, 2005 WL 1174088, at *3 (N.D.N.Y.
May 4, 2005)(“[P]articipation in an inmate grievance process is not
a constitutionally protected right.”) (citations omitted); Cancel
v. Goord, No. 00. CIV.2042, 2001 WL 303713, at *3 (S.D.N.Y. Mar.
29, 2001) (holding that “inmate grievance procedures are not
required by the Constitution” and therefore failure to see to it
that grievances are properly processed does not create a claim
under section 1983). This claim must be dismissed as a matter of
law

as

Plaintiff

constitutional

has

failed

obligation

on

to
the

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demonstrate
part

of

an

underlying

Defendants

to

to

investigate

and

determine–in

a

manner

he

deems

correct–his

grievances filed pursuant to DOCCS’ internal grievance procedure.
Accord, e.g., Toole v. Connell,

No. 9:04CV0724LEK/DEP, 2008 WL

4186334, at *8 (N.D.N.Y. Sept. 10, 2008).
C.

Third Cause of Action: “The First Amend. Of The U.S.
Constitution”

Plaintiff asserts that all of the Defendants “by theirs [sic]
actions or in-actions have violated [his] right under the ‘freedom
of religion’ clause” of the First Amendment. Dkt #5-2 at 8.
Plaintiff does not allege any facts under this heading. Defendants
have

assumed

that

his

First

Amendment

claim

relates

to

his

allegations of being served spoiled food. The Court finds this a
reasonable interpretation.
Construing the Complaint and Plaintiff’s other submissions
leniently, as is required given his pro se status, it appears that
Plaintiff is claiming that he was served spoiled or rotten food on
numerous occasions and was denied nutritionally adequate Kosher
meals on “approximately 20" occasions. See, e.g., Affidavit of
Shabazz Vasquez (“Vasquez Aff.”), ¶ 2 (Dkt #36-5). According to
Vasquez, he was present when FSA Fennessy and “a[n] Officer” told
Plaintiff that he was removed from the Kosher meal plan because he
was “a N-----” and “not a true ‘Jew’”. Vasquez Aff., ¶ 2 (Dkt #365).
With regard to his claims of being served spoiled food items
that

were

incompatible

with

the
-11-

requirements

of

the

Cold

Alternative Diet, James has failed to set forth a cognizable
constitutional

violation.

In

his

deposition

testimony,

he

identified only three occasions on which his food tray contained
spoiled or unpalatable items. Each time, he addressed the issue
with the facility cook, and was either given a replacement item or
an entirely new food tray. See Pl’s Dep. at 123-24 (Dkt #36-4) Cf.
Ward v. Goord, No. 9:06–CV–1429, 2009 WL 102928, at *6 (N.D.N.Y.
Jan. 13, 2009) (“In this case, Ward has failed to establish an
Eighth Amendment claim based upon denial of kosher meals during his
transport.

While

Ward

repeatedly

claims

that

he

was

offered

non-kosher, rotten, and stale food, he has neither proven the
existence of imminent danger to his health and well-being nor an
actual

injury.

Ward

also

does

not

allege

that

the

unnamed

corrections officer that provided him with his meals were aware
that the food that they were serving was allegedly inedible.
Additionally, when Ward brought the situation to an officer's
attention, the officer contacted the kitchen and attempted to
remedy the problem.”) (footnote and internal citation to record
omitted).
With regard to James’ claim that he was removed from the Cold
Alternative Diet (“CAD”) meal plan because of his race and because
Defendants did not believe he was an authentic practitioner of
Judaism, he has not raised a triable issue of fact. As discussed
above, at his deposition, Plaintiff testified only that he received

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three meal trays that were unacceptable. See McEachin v. McGuinnis,
357 F.3d 197, 203 n. 6 (2d Cir. 2004) (holding that “[t]here may be
inconveniences so trivial that they are most properly ignored ...
[thus] the time-honored maxim de minimis non curat lex applies”)
(footnote omitted). In any event, Plaintiff was provided new items
or a new tray at his request on each occasion.
Plaintiff likewise has not substantiated his claim that he was
removed from the CAD meal plan because of his race and because
prison officials questioned the sincerity of his beliefs. The
documents submitted by Plaintiff actually contradict this claim and
relate

to

a

limitations.

time-period
For

instance,

outside
he

has

the

three-year

submitted

statute

of

interdepartmental

memoranda indicating that he was removed from the CAD meal plan
after an audit in December 2008 revealed that he had missed an
impermissible

number

of

meals,

in

violation

of

facility

regulations. See Dkt #36-5, pp. 18 of 37. However, in February
2009, he was able to restart the CAD meal program. See Dkt #36-5,
pp. 20 of 37.
D.

Fourth Cause of Action: “Due Process”

Plaintiff’s Fourth cause of action is titled “Due Process” in
violation of Prision Directive 4910. See Dkt #5-2 at

9. Plaintiff

alleges that C.O. Sheftic conducted a cell search in violation of
Prison Directive 4910, thereby violating his right to due process
under the Fourteenth Amendment. Plaintiff asserts that his legal

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papers, his Torah, and his “tonnoc [sic]” were removed from his
cell during the search. It appears that these items later were
returned. See Pl’s Dep. at 96-97 (Dkt #36-4)
Plaintiff’s claims regarding Directive # 4910 fail to show the
existence of a property interest to which a due process right is
attached. See Smith v. O’Connor, 901 F. Supp. 644, 648 (S.D.N.Y.
1995)

(“[D]irective

[4910]

simply

provides

a

blueprint

for

correctional officers to follow when conducting a cell search. Its
aim is to ensure that officers take care when moving an inmate’s
property during the search. Even the most liberal interpretation of
Directive # 4910 cannot support the conclusion that an inmate has
an entitlement to a property interest in a clean cell during or
after

a

search.”)

(citing

Terrell

v.

Coughlin,

No.

91

Civ.

2987(LJF), 1991 WL 274475, at *2 (S.D.N.Y. Dec. 10, 1991) (finding
that Directive # 4910 does not grant inmates substantive rights).
Even assuming C.O. Sheftic violated the terms of Directive #4910,
Plaintiff is not entitled to constitutional due process protections
because no property right is created by that directive. Accord
Smith, 901 F. Supp. at 648.
E.

Supervisors’ Liability

Plaintiff

attempts

to

establish

personal

involvement

by

Superintendent Poole and CORC Director Eagan by pointing to their
roles in reviewing Plaintiff’s grievances. Without more, this is

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insufficient to create personal involvement in Plaintiff’s alleged
constitutional violations.
Invariably, a prisoner’s grievance is passed upon by the
Superintendent, and by the director of the CORC if the prisoner
pursues a further appeal. See N.Y. Comp. Code R. & Regs., tit. 7,
§ 701.7(c) (“Th[e] [Inmate Grievance] [P]rogram enables any inmate
who is personally affected by an issue for which there is no avenue
for redress or correction to seek resolution of a complaint through
a facility committee of elected peers and appointed staff members:
the inmate grievance resolution committee (IGRC). If not satisfied,
an inmate may appeal to the facility superintendent; if still not
satisfied, an inmate may appeal to a committee of central office
staff acting on behalf of the commissioner: the central office
review committee (CORC).”). This is insufficient, however, to
establish

the

requisite

personal

involvement

for

purposes

of

§ 1983. See Joyner v. Greiner, 195 F. Supp.2d 500, 506 (S.D.N.Y.
2002) (“The fact that Superintendent Greiner affirmed the denial of
plaintiff’s grievance-which is all that is alleged against him-is
insufficient to establish personal involvement or to shed any light
on

the

critical

issue

of

supervisory

liability,

and

more

particularly, knowledge on the part of the defendant.”) (internal
quotation marks and citation omitted). Here, Plaintiff’s Complaint
merely states that Superintendent Poole and CORC Director Eagen
affirmed the denial of his grievances. Likewise, in Plaintiff’s

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deposition, he did not testify regarding any other involvement by
these supervisors. See Pl’s Dep. at 98-99 (Dkt #36-4). “It is well
established

that

‘absent

some

personal

involvement

by

[the

Superintendent of a DOCCS facility] in the allegedly unlawful
conduct of his subordinates, he cannot be held liable under Section
1983.’” Joyner, 195 F. Supp.2d at 506 (quoting Gill v. Mooney, 824
F.2d 192, 196 (2d Cir. 1987) (citations omitted)).
IV.

Conclusion
For the foregoing reasons, Defendants’ motion to dismiss

(Dkt #47) is granted, and the Complaint is dismissed in its
entirety. Plaintiff’s motion to set a trial date (Dkt #57) is
denied as moot.
SO ORDERED.
S/Michael A. Telesca

HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

January 9, 2013
Rochester, New York

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