Modlenaar v. Liberatore et al

Filing 23

DECISION AND ORDER granting in part and denying in part 13 Motion to Dismiss.Defendants are granted judgment on the pleadings with regard to all claims except the following: 1) First Amendment retaliation claim against Liberatore; 2) First Amendmen t free-exercise claim against Liberatore; and 3) First Amendment access-to-the courts claim against Prusak. The action is dismissed as against Conway, James, Magee and Frisby. The parties are directed to inform the Court in writing, within thirty days of the date of this Decision and Order, whether this action is ready for trial. Signed by Hon. Charles J. Siragusa on 7/21/09. (KAP)

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

M IC H A E L MODLENAAR, P la in t if f , -vC .O . LIBERATORE, SUPERINTENDENT JAMES C O N W A Y , DEPUTY SUPERINTENDENT R. JAMES, PHYSICIAN ASSISTANT MAGEE, N U R S E ADMINISTRATOR FRISBEE, and IN M A T E RECORDS COORDINATOR SANDRA PRUSAK, D e f e n d a n ts . D E C IS IO N AND ORDER 0 7 -C V -6 0 1 2 CJS

APPEARAN CES F o r Plaintiff: M ic h a e l Modlenaar, aka Michael Mondon, pro se 2 0 7 0 7 th Avenue A p a rtm e n t #10L N e w York, New York 10027

F o r Defendants:

J . Richard Benitez, Esq. A ss is ta n t Attorney General O f fic e of the New York State Attorney General 1 4 4 Exchange Boulevard, Suite 200 R o c h e ste r, New York 14614

IN T R O D U C T IO N T h is is an action brought pursuant to 42 U.S.C. § 1983, in which Michael Modlenaar ("P la in tif f "), a former prison inmate, proceeding pro se, is suing various employees of the N e w York State Department of Correctional Services ("DOCS") who were employed at A t tic a Correctional Facility ("Attica"). Specifically, Plaintiff is suing Corrections Officer J a m e s Liberatore ("Liberatore"), Superintendent James Conway ("Conway"), Deputy S u p e r in t e n d e n t Randy James ("James"), Physician's Assistant Robert Magee ("Magee"),

N u r s e Administrator Barbara Frisby ("Frisby"), sued as Barbara Frisbee, and Inmate R e c o rd s Coordinator Sandra Prusak ("Prusak"). Now before the Court is Defendant's m o tio n for judgment on the pleadings. (Docket No. [#13]). For the reasons that follow, the a p p lic a t io n is granted in part and denied in part. BACKGROUND T h e following facts are taken from the Complaint in this action. At all relevant times P la in tif f was housed in Attica's Special Housing Unit ("SHU"). On May 12, 2006, Plaintiff f ile d an inmate grievance against Liberatore, accusing him of harassment. On May 24, 2 0 0 6 , Liberatore delivered Plaintiff's breakfast tray. According to Plaintiff, Liberatore did not g iv e him a styrofoam cup of hot water, which was usually included with breakfast. Later that d a y, Corrections Officer Gordon ("Gordon"), who is not a party to this action, collected P la in tif f 's breakfast tray and utensils, and ordered Plaintiff to return a styrofoam cup. P la in t if f protested that he had not received a cup that morning. Gordon checked with L ib e ra to re , who stated that he had provided Plaintiff with a cup. Consequently, Gordon is s u e d Plaintiff a misbehavior report, charging Plaintiff with three infractions: contraband, r e f u s in g a direct order, and misusing state property. In connection with the misbehavior report, Liberatore placed Plaintiff on a pre-hearing r e s t ric t e d diet, consisting of "loaf." (Complaint ¶ 26).1 James approved the imposition of the

New York State's adm in i s tr a tiv e code addresses the im p o s itio n of restricted diets on inm a te s c o n f in e d in SHU, in relevant part, as follows: S e c t io n 304.2. Food In m a te s confined in the SHU will be provided m e a ls of the sam e type as the m e a ls available to inm a te s in general population and in sufficient quantity to be nutritionally adequate, except a s provided in this section. *** ( b ) Inm a te s m a y be placed on a restricted diet in accordance with the provisions of Chapter

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re s tric te d diet. In an inmate grievance that Plaintiff filed near the date of the incident, he s ta te d that he was kept on the restricted diet for only three days. However, in the complaint in this action, Plaintiff alleges that the restricted diet lasted for six days. A medical

d o c u m e n t attached to the complaint appears to indicate that Plaintiff was on the restricted d ie t from May 24, 2006 through May 29, 2006. (Complaint, Exhibit B). Plaintiff claims that he is Jewish, and that he was supposed to receive kosher meals. P la in tif f further maintains that Attica's facility food administrator informed him that kosher lo a f was available. Plaintiff contends that Liberatore gave him non-kosher loaf, but Plaintiff re f u s e d to eat it because it was not kosher. Plaintiff asked Liberatore for kosher loaf, but L ib e r a t o r e responded that there was no such thing as kosher loaf. Magee gave medical approval for the restricted diet. On May 27, 2006, Plaintiff wrote to Frisby, and asked her whether the facility medical staff had received notice that he was b e in g placed on a restricted diet. Frisby responded in the affirmative. Moreover, medical

V of this Title, for the following reasons: *** ( 3 ) refusing to obey a direct order at the tim e of m e a l distribution or refusing to obey a direct o r d e r to return a food container or utensil at the conclusion of a m e a l, while assigned to SHU; *** ( c ) The superintendent or his designee m a y issue a written order placing an inm a te reported t o have engaged in conduct described in subdivision (b) of this section on a restricted diet f o r no m o r e than seven days pending the outcom e of the inm a te 's superintendent's hearing. T h e order shall briefly state the reason(s) for the im p o s itio n of the restricted diet and contain th e following notice to the inm a te : "You m a y write to the deputy superintendent of security or h is /h e r designee to m a k e a statem e n t as to the need for the continued pre-hearing im p o s itio n o f the restricted diet." One copy of the order shall be given to the inm a te and another copy f o r w a r d e d to the com m is s io n e r within 24 hours of issuance. *** ( e ) The restricted diet m u s t consist of a sufficient quantity of wholesom e and nutritious food. ( f ) Health services and food services shall be notified in advance of the im p o s itio n of a r e s t r ic t e d diet. A physician, nurse or physician's assistant, designated by the facility health s e r v ic e s director, m u s t exam in e into the state of health of the inm a te within 24 hours of the c o m m e n c e m e n t of the restriction and daily thereafter during the period of restriction. *** 7 NYCRR § 304.2 (2009).

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s ta f f monitored Plaintiff for "adverse effects of diet" each day that he was on the restricted d ie t . (Complaint, Exhibit B). A Tier III disciplinary hearing concerning the misbehavior report was conducted b e t w e e n June 2, 2006 and June 7, 2006. During the hearing, at Plaintiff's request, a v id e o ta p e ("the videotape") was produced, which depicted the area near his cell on the m o rn in g of May 24, 2006. At the conclusion of the hearing, the hearing officer found P la in tif f not guilty of the charges, purportedly because the staff member appointed to assist P la in tif f with the hearing provided inadequate assistance. O n June 7, 2006, Plaintiff filed an inmate grievance, complaining that due process rig h ts had been violated. Plaintiff also alleged that he had been improperly placed on the re s tric te d diet, in violation of his "constitutional rights." 2 In the grievance, Plaintiff asked p e rm is s io n to purchase a copy of the videotape. On June 23, 2006, Conway denied the g rie v a n c e , stating that Plaintiff's constitutional rights were not violated, since the hearing o f f ic e r found Plaintiff not guilty of the charges. Conway further stated that the pre-hearing re s tr ic te d diet was "properly authorized." Finally, Conway informed Plaintiff that he could "re q u e s t a copy of the video tape in question through [a Freedom of Information Law ("F O IL ") request.]. Subsequently, Plaintiff asked Prusak for a copy of the videotape.

P r u s a k responded that there was no record of a misbehavior report filed against Plaintiff on M a y 24, 2006, and that Plaintiff therefore could not have a copy of the videotape. Prusak f u rth e r stated that Plaintiff could not purchase a copy of the tape in any event. Plaintiff a p p e a le d Conway's decision, and on August 23, 2006, the Central Officer Review

In this action, Plaintiff alleges that he was placed on the restricted diet for six days. However, in his in m a t e grievance, he stated that he was on the restricted diet for only three days.

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C o m m itte e ("CORC") "accepted [the appeal] in part," and informed Plaintiff that he could a p p e a l the denial of his FOIL request to DOCS's Counsel's Office. Plaintiff appealed to D O C S 's Counsel, who responded that the videotape in question had not been preserved. P la in t if f subsequently commenced this action. Plaintiff alleges that Liberatore

re ta lia te d against him, in violation of the First Amendment, by setting him up for a false m is b e h a v io r report. Plaintiff further alleges that Liberatore violated his Fourteenth

A m e n d m e n t due process rights by placing him on a restricted diet, and violated his First A m e n d m e n t religious rights by failing to provide him with a kosher diet. Plaintiff alleges that F ris b y violated his Eighth Amendment rights by failing to conduct "an overall medical e v a lu a tio n " before Plaintiff was placed on the restricted diet. Plaintiff also alleges that M a g e e violated his Eighth Amendment rights, by acting with deliberate indifference to P la in t if f ' s medical needs and approving the restricted diet. Plaintiff alleges that James v io la te d his First Amendment religious rights when he approved the restricted diet. Plaintiff f u rth e r alleges that James violated his Fourteenth Amendment due process rights by failing to investigate the incident. Plaintiff alleges that Conway violated Plaintiff's First Amendment re lig io u s and Fourteenth Amendment due process rights by "upholding the unlawful re s tr ic te d diet," failing to investigate the incident, and "reversing the Grievance Committee's d e c is io n ." Plaintiff alleges that Prusak violated his due process rights by failing to provide h im with the videotape, in an attempt to cover up the Defendants' wrongdoing. The Court a ls o construes the claim against Prusak as alleging a violation of Plaintiff's First A m e n d m e n t right of access to the courts. D e f e n d a n ts subsequently filed the subject motion for judgment on the pleadings. D e f e n d a n ts contend that the complaint fails to allege any constitutional violation.

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S p e c if i c a lly, Defendants maintain that: 1) the restricted diet did not violate Plaintiff's Eighth A m e n d m e n t rights because the diet was nutritionally adequate; 2) the restricted diet did not v io la t e Plaintiff's religious rights, because the diet lasted only a few days and was therefore d e minimis; 3) the restricted diet did not violate Plaintiff's due process rights, because D O C S regulations, and specifically, 7 3 NYCRR § 304.2(b)(3), provided for the imposition of a restricted diet. DISCUSSION I n deciding a motion for judgment on the pleadings under FRCP 12(c), the Court m u s t apply the same standard that applies to motions under FRCP 12(b)(6). Johnson v. R o w le y ,5 6 9 F.3d 40, 43 (2d Cir. 2009). That is, the Court must a c c e p t all factual allegations in the complaint as true and draw all reasonable in f e r e n c e s in Johnson's favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 4 9 3 F.3d 87, 98 (2d Cir.2007). To survive a Rule 12(c) motion, [the] " c o m p la in t must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, --- U.S. ----, 1 2 9 S.Ct. 1937, 1949, [173] L.Ed.2d [868] (2009) (quoting Bell Atl. Corp. v. T w o m b ly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). I d . At 43-44. As to that, [ a ] claim has facial plausibility when the plaintiff pleads factual content that a llo w s the court to draw the reasonable inference that the defendant is liable f o r the misconduct alleged. The plausibility standard is not akin to a `p r o b a b ilit y requirement,' but it asks for more than a sheer possibility that a d e f e n d a n t has acted unlawfully. W h e r e a complaint pleads facts that are m e re ly consistent with a defendant's liability, it stops short of the line between p o s s ib ility and plausibility of entitlement to relief. A s h c r o f t v. Iqbal, 129 S.Ct. at 1949 (citations omitted). In short, the facts alleged must " p e r m it the court to infer more than the mere possibility of misconduct." Id. at 1950. "Legal

Defendants incorrectly identify the regulation as "20 NYCRR L a w [#14] at 5).

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§ 304.2(b)(3)." (Defendants' Mem o of

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c o n c lu s io n s " need not be accepted as true, and "[t]hreadbare recitals of the elements of a c a u s e of action, supported by mere conclusory statements, do not suffice." Id. at 1949 ( c i ta t io n omitted). However, "[w]hen there are well-pleaded factual allegations, a court s h o u ld assume their veracity and then determine whether they plausibly give rise to an e n t it le m e n t to relief." Id. Moreover, since Plaintiff is proceeding pro se, the Court is

re q u ire d to construe his submissions liberally, "to raise the strongest arguments that they s u g g e s t ." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994). F irs t Amendment Retaliation A t the outset, Defendants' motion does not address Plaintiff's claim that Liberatore s e t him up to receive a false misbehavior report, in retaliation for the grievance that Plaintiff f ile d against Liberatore on May 12, 2006. On this issue, the filing of a false misbehavior r e p o r t in retaliation for engaging in protected activity is actionable as retaliation. Franco v. K e lly , 854 F.2d 584, 590 (2d Cir. 1988). Accordingly, the retaliation claim against Liberatore m a y go forward. First Amendment Access to the Courts W ith regard to the alleged failure to preserve the videotape, the Court construes the c o m p la in t as attempting to plead a claim against Prusak for denial of access to the courts.4 S e e , Washington v. James, 782 F.2d 1134, 1138 (2d Cir. 1986) ("A prisoner has a c o n s titu tio n a l right of access to the courts for the purpose of presenting his claims, a right th a t prison officials cannot unreasonably obstruct and that states have affirmative o b lig a tio n s to assure.") (citations omitted). Specifically, it appears that Plaintiff wanted a

The com p la in t does not state a claim against Conway for denial of access to the Courts, since C o n w a y inform e d Plaintiff that he could request a copy of the videotape through a FOIL request.

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c o p y of the videotape in order to pursue a legal claim against Liberatore for retaliation, s in c e , according to Plaintiff, the videotape would show that Liberatore never gave Plaintiff a styrofoam cup on the morning of May 24, 2006. Plaintiff alleges that Prusak prevented h im from obtaining the videotape, to cover up Liberatore's actions. Defendants' motion d o e s not address the "denial of access to the courts" claim against Prusak, so the claim m a y proceed. On the other hand, the complaint does not state a claim against Conway (or a n y other defendant) for denying access to the courts. In that regard, Conway never denied a request by Plaintiff for the videotape, but instead, informed Plaintiff that he could obtain a copy of the tape through a FOIL request. There is no allegation that Conway was re s p o n s ib le for the failure to preserve the tape. F re e Exercise of Religion P la in tif f alleges that Defendants violated his right to religious freedom by serving him a non-kosher restricted diet. It is well settled that the right to free exercise of religion in c lu d e s "the right of prisoners to receive diets consistent with their religious scruples." K a h a n e v. Carlson, 527 F.2d 492, 495 (2d Cir. 1975). Defendants contend that the

c o m p la in t fails to state a free exercise claim because the denial of kosher food was "re a s o n a b ly related to legitimate penological interests." (Defendants' Memo of Law [#14] at 4 ). However, Plaintiff alleges that Liberatore denied him kosher meals, even though kosher lo a f was available. Defendants have not identified any legitimate penological reason why L ib e r a t o r e would have failed to provide Plaintiff with kosher loaf. Defendants also contend that the six-day restricted diet was a de minimis injury that f a ils to rise to the level of a constitutional violation. Id. at 5. However, the Court finds that a t the pleading stage, Plaintiff's claim may go forward. See, McEachin v. McGuinnis, 357

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F .3 d 197, 201 (2d Cir. 2004) (In which the Second Circuit held that a seven-day deprivation o f religious meals, could be actionable under the First Amendment.); Wesley v. Alexander, N o . 99 CIV 2168(LAK), 2005 W L 1352593 at *10 (S.D.N.Y. Jun. 8, 2005) ("Defendant cites n o legal authority-and we are aware of none-for the proposition that a plaintiff must prove th a t he missed a specified number of meals because of the violation of his religious p r e c e p t s in order to press a free-exercise claim . . . ."); but see, Tapp v. Stanley, No. 0 4 -C V -6 4 0 0 CJS, 2008 W L 4934592 at *7 (W .D .N .Y . Nov. 17, 2008) ("[W ]h e re a delay in p ro v id in g an inmate with a religious diet is brief and caused by ordinary administrative delay, t h e inmate's religious rights are not violated."). Plaintiff, though, has not alleged that he requested a kosher restricted diet from any d e f e n d a n t except Liberatore. Plaintiff alleges that he wrote letters to a Rabbi and a food s e rv ic e administrator concerning the restricted diet, and that he filed a grievance after the re s tric te d diet ended, but there is no indication that any defendant beside Liberatore had n o tic e that Plaintiff was being denied kosher meals while the restricted diet was in place. In other words, there is no allegation that any other defendant except Liberatore was p e rs o n a lly involved in the denial of kosher meals. Accordingly, the free exercise claim is d is m is s e d as against all defendants except Liberatore. Procedural Due Process P la in t if f alleges that being placed on a restricted diet violated his procedural due p r o c e s s rights. The law is well settled that to show a violation of his procedural due process rig h ts , an inmate must establish interference with a protected liberty interest b y satisfying a two-part test: (1) the confinement or restraint must create an "a typ ic a l and significant hardship in relation to the ordinary incidents of prison lif e , " Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418

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(1 9 9 5 ); and (2) the state must have granted a liberty interest by statute or r e g u la t io n to be free from that confinement or restraint. Frazier v. Coughlin, 8 1 F.3d 313, 317 (2d Cir.1996) (citing Sandin, 515 U.S. at 484, 115 S.Ct. 2 2 9 3 ). Bonet v. Khahaifa, 512 F.Supp.2d 141, 142-143 (W .D . N . Y . 2007). Plaintiff's due process c la im s are based on the fact that he was placed on a restricted diet for a period of six days. A lth o u g h Plaintiff contends that he refused to eat the loaf since it was not kosher, he does n o t allege that the restricted diet loaf was nutritionally inadequate or that it otherwise posed a risk to his health. Placement on a restricted prison diet for a period of six days, without a n allegation that the diet endangered the inmate's health, is not sufficient to establish an " a t yp ic a l and significant hardship." Johnson v. Gummerson, 198 F.3d 233, 1999 W L 822523 a t *1 (Table) (2d Cir. Sep. 24, 1999) ("[T]he mere allegation of the imposition of a one-week d ie ta ry restriction, without an additional allegation that the restriction endangers the p ris o n e r's health, does not demonstrate an "atypical and significant hardship" capable of s a tis f yin g Sandin."). Consequently, Plaintiff has not pleaded that he had a protected liberty in te re s t, and the due process claims are dismissed. E ig h th Amendment Diet Claim P la in t if f also alleges that the restricted diet violated his Eighth Amendment right to b e free from cruel and unusual punishment. However, the denial of kosher meals does not v io la t e the Eighth Amendment. See, Wesley v. Kalos, No. 97 CIV. 1598(RW S ) , 1997 W L 7 6 7 5 5 7 at *4 (S.D.N.Y. Dec. 11, 1997) (Denial of Halal food to Muslim inmate did not "rise t o the level necessary to be deemed cruel and unusual under the Eighth Amendment."); P e re z v. Westchester County Dept. Of Corrections, No. 05 Civ. 8120(RMB), 2007 W L

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1 2 8 8 5 7 9 at *5 (S.D.N.Y. Apr. 30, 2007) (Denial of halal and kosher meat is not cruel and u n u s u a l punishment). Therefore, the Eighth Amendment diet claims are dismissed. E ig h th Amendment Medical Claim Plaintiff alleges that by failing to conduct a medical evaluation prior to placing him on a restricted diet, Defendants violated his Eighth Amendment rights. The legal standards applicable to such claims are clear: In order to establish an Eighth Amendment claim arising out of inadequate m edical care, a prisoner must prove deliberate indifference to his serious m ed ical needs. This standard incorporates both objective and subjective elem ents. The objective `medical need' element measures the severity of the alleged deprivation, while the subjective `deliberate indifference' element ensures that the defendant prison official acted with a sufficiently culpable state of mind. Because the Eighth Amendment is not a vehicle for bringing medical malpractice claim s, nor a substitute for state tort law, not every lapse in prison medical care will rise to the level of a constitutional violation. [T]he Supreme Court [has] explained that the Eighth Amendment's prohibition on cruel and unusual punishm ents encompasses the deliberate failure to treat a prisoner's serious illness or injury resulting in the infliction of unnecessary pain and suffering. B ecaus e society does not expect that prisoners will have unqualified access to health care, a prisoner must first make this threshold showing of serious illness or injury in order to state an Eighth Amendment claim for denial of medical care. S im ilarly, a prisoner must demonstrate more than an inadvertent failure to provide adequate medical care by prison officials to successfully establish Eighth Am endm ent liability. An official acts with the requisite deliberate indifference when that official knows of and disregards an excessive risk to inmate health or s afety, a state of mind equivalent to the familiar standard of `recklessness' as used in criminal law. Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir.2003) (citations and internal quotations o m it t e d ) . H e r e , Plaintiff does not allege that he had any medical condition which would have m a d e it unsafe for him to be placed on a restricted diet. A m e n d m e n t medical claim is dismissed. Accordingly, the Eighth

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Q u a lif ie d Immunity A s a final matter, Defendants have thrown in a one-sentence request to dismiss, b a s e d on qualified immunity. The request is denied since Liberatore and Prusak, the only d e f e n d a n ts remaining in this action, have not shown that they are entitled to qualified im m u n it y. C O N C L U S IO N D e f e n d a n t s ' motion (Docket No. [#13]) is granted in part and denied in part. D e f e n d a n ts are granted judgment on the pleadings with regard to all claims except the fo llo w in g : 1) First Amendment retaliation claim against Liberatore; 2) First Amendment freee x e rc is e claim against Liberatore; and 3) First Amendment access-to-the courts claim a g a in s t Prusak. The action is dismissed as against Conway, James, Magee and Frisby. T h e parties are directed to inform the Court in writing, within thirty days of the date of this D e c is io n and Order, whether this action is ready for trial. S O ORDERED. D a te d : J u ly 21, 2009 R o c h e s t e r , New York /s/ Charles J. Siragusa CHARLES J. SIRAGUSA United States District Judge

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