Willey v. Kirkpatrick et al
Filing
126
-CLERK TO FOLLOW UP- ORDER granting 117 Motion for Summary Judgment; plaintiff's motion for appointment of counsel, asserted in his opposition to defendants' summary judgment motion, is denied as moot; and the amended complaint is dismissed. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 2/4/13. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
AARON WILLEY,
No. 07-CV-6484(MAT)
DECISION AND ORDER
Plaintiff,
-vsROBERT KIRKPATRICK, et al.,
Defendants.
I.
Introduction
On October 4, 2007, pro se plaintiff Aaron Willey (“Willey” or
“Plaintiff”) instituted this action pursuant to 42 U.S.C. § 1983
against Defendants, alleging that they violated his constitutional
rights while he was an inmate in the custody of the New York State
Department of Corrections and Community Supervision (“DOCCS”). The
Complaint alleges that Defendants acted “both individually and in
concert,” but does not allege any claims against them in their
official capacities. The Complaint demands a “declaratory judgment
stating
that
Defendants
violated
[Plaintiff’s]
constitutional
rights,” as well as compensatory and punitive damages. Plaintiff
was granted permission to file an amended complaint (Dkt #60),
which is the operative pleading in this action.
Defendants Robert A. Kirkpatrick, M. Monahan, Martin Kearney,
Scott
Lambert,
Taylor
Roberts,
M.
Sztuk,
A.
Allessandro,
M. Overhuff, and Tom Schoellkopf have moved for summary judgment
dismissing
the
complaint
pursuant
to
Federal
Rules
of
Civil
Procedure 56. Plaintiff has opposed the motion and renewed his
request for the appointment of counsel.
For the reasons discussed herein, Defendants’ motion for
summary
judgment
is
granted,
and
the
amended
complaint
is
dismissed.
II.
Background
A.
At
The Parties
all
relevant
times,
Plaintiff
was
housed
at
Wende
Correctional Facility (“Wende”), and Defendants were all employed
at Wende. Specifically, Robert Kirkpatrick (“Supt. Kirkpatrick”)
was Superintendent at Wende; M. Monahan (“DSS Monahan”) was Deputy
Superintendent for Security; Martin Kearney (“Capt. Kearney”) was
a Corrections Captain; Scott Lambert (“Sgt. Lambert”) and Jeff
Jeziorski (“Sgt. Jeziorski”) were Corrections Sergeants; Taylor
Roberts (“C.O. Roberts”), M. Sztuk (“Sztuk”), A. Allesandro (“C.O.
Allesandro”), and M. Overhuff (“C.O. Overhuff”) were Corrections
Officers; and Tom Schoellkopf (“H.O. Schoellkopf”) was a Hearing
Officer.
B.
Factual Summary
The recitation of facts below is drawn from the pleadings and
discovery documents on file in this matter. The Court has viewed
the facts in the light most favorable to Plaintiff, as the party
opposing summary judgment. See, e.g., United States v. Diebold,
Inc., 369 U.S. 654, 655 (1962) (In determining whether a genuine
issue exists as to a material fact, the court must view underlying
-2-
facts contained in affidavits, attached exhibits, and depositions
in the light most favorable to the non-moving party.).
1.
The October 2005 False
Possessing a Weapon
Misbehavior
Report
for
On October 15, 2005, Sgt. Lambert and C.O. Roberts detained
Willey and frisked him for no apparent reason. They brought him to
a small room without a surveillance camera and questioned him about
an inmate they suspected of smuggling contraband into Wende. Sgt.
Lambert opened a desk drawer and pulled out what appeared to be a
metal weapon and said that if he did not work with them as an
informant, they would falsely charge him with possessing a weapon.
Plaintiff refused to cooperate, stating that he did not have any
knowledge of the alleged smuggling. Sgt. Lambert responded, “Have
it your way,” and brought Willey back to his cell.
On October 17, 2005, while Willey was undergoing a pat-frisk
before attending yard recreation, C.O. Roberts allegedly uncovered
a flat piece of metal about four inches long and three-quarters of
an inch wide secreted near his crotch area. C.O. Roberts issued a
disciplinary report charging Plaintiff with Possession of a Weapon
and Possession of Contraband (PR 110.13 and 110.23). Willey was
subsequently found guilty at a disciplinary hearing, even though he
was not given notice or an opportunity to appear at the hearing.
On appeal, the conviction was set aside and a new hearing was
ordered. At the hearing before Capt. Kearney on December 28, 2005,
Plaintiff alleges that he was denied the right to call inmate
-3-
witnesses and was unjustly removed from the hearing. He states that
Capt. Kearney threatened to “beat the shit out of” him and called
him a “young punk.” According to Capt. Kearney, Willey’s removal
from
the
hearing
was
warranted
because
he
refused
to
stop
interrupting Capt. Kearney and attempting to place irrelevant
matters on the record. Capt. Kearney found Willey guilty of both
charges, and imposed 180 days in the Special Housing Unit (“SHU”),
180 days of lost privileges, and 12 months recommended loss of good
time credits. On appeal, the conviction was set aside by Special
Housing Unit Director Donald Selsky (“SHU Director Selsky”) on
February 28, 2006.1
2.
The November 2005 False Misbehavior Report
On November 26, 2005, C.O. Sztuk and C.O. Allessandro escorted
Willey to the shower. When Willey returned, he found that his cell
had been “trashed”–the toilet had been flooded, and Willey’s papers
and belongings were strewn about his cell. When Willey asked C.O.
Sztuk for a “search contraband slip,” Sztuk replied, “You really
like fucking with me.” Willey responded, “What?” C.O. Sztuk said,
“You heard me, keep fucking with me asshole and see what happens.”
1
On November 28, 2006, Plaintiff was charged criminally with
Promoting Prison Contraband in the First Degree, based upon the
false misbehavior report issued by C.O. Roberts in October 2005,
regarding Plaintiff’s possession of a shank-type weapon. This
charge was subsequently dismissed, however, by Alden Town Court
Justice LaDuca.
-4-
Inmates housed nearby confirmed that they had seen C.O. Sztuk
carrying Willey’s legal paperwork out of his cell after the cell
search. Willey yelled out and asked to speak to an area supervisor.
He was told to “give it a rest,” to which he replied that he would
not give it a rest because they had stolen his legal paperwork. At
that point, C.O. Sztuk said, “What’s that, Willey, you said you are
going
to
shit
us
down
(i.e.,
throw
feces
and/or
urine
on
corrections officers)?” Willey denied saying anything like that.
Nevertheless, he was moved to the restricted side of the SHU
where a Plexiglas shield was placed on his cell. C.O. Allesandro
then turned off the water to Plaintiff’s cell, so that he could not
flush the toilet. As a result, feces and urine accumulated in the
bowl and made the air in the cell noxious. Willey alleges that the
area supervisor, Sgt. Jeziorski, failed to properly supervise C.O.
Allessandro and C.O. Sztuk.
On or about November 28, 2005, C.O. Sztuk filed a false
misbehavior report against Plaintiff, accusing him of threatening
to “shit down” staff members. At the subsequent disciplinary
hearing on December 7, 2005, before Susan Post (not a defendant in
this action), Willey attempted to use videotape evidence to prove
that he did not make such threat. However, according to Willey,
someone had tampered with the surveillance tape to remove the sound
and destroy the picture quality. Willey was found guilty and
-5-
sentenced to 90 days in the SHU. On appeal, the charge was affirmed
by SHU Director Selsky.
3. The December 2005 False Misbehavior Report
On December 18, 2005, Willey placed the garbage from his
evening meal on his feed-up tray to be picked up. However, C.O.
Overhuff refused to remove the refuse, and issued another false
misbehavior report against Plaintiff for refusing a direct order
(namely, to turn in his food tray) in violation of Prison Rule
106.10. According to C.O. Overhuff, he told Willey to hand him
tray, and Willey instead began to break his garbage in pieces;
C.O. Overhuff reiterated the order, and Willey again allegedly
refused.
D.S.S. Monahan placed Willey on a pre-hearing restricted diet,
and, on December 20, 2005, denied Willey’s appeal of that decision.
At the disciplinary hearing conducted on January 10, 2006,
with regard to the December 18, 2005 incident, H.O. Schoellkopf
refused to allow Willey to question witnesses and ejected him from
the hearing. According to Willey, H.O. Schoellkopf told him, “You
are going to die in the SHU, you young punk.” H.O. Schoellkopf
found Willey guilty and sentenced him to 30 days in the SHU,
30 days of lost privileges and two months of recommended loss of
good time
credits.
On
February
28,
2006,
the
conviction
was
reversed on appeal by SHU Director Selsky, who found that Willey
“was inappropriately removed from the hearing.”
-6-
4.
Harassment by Corrections Officers and Plaintiff’s
Suicide Attempt
Willey states that while he was housed in the SHU, he was
subjected to continuous verbal harassment by numerous corrections
officers, especially C.O. Allesandro. According to Willey, C.O.
Allessandro made sexually harassing comments and, while Willey was
showering, would stare at him licking his lips and blowing kisses.
As a result, Willey became severely depressed and attempted to
overdose on ibuprofen on February 9, 2006. He was taken to Erie
County Medical Center and, upon his return to Wende, was placed in
an observation cell he describes as filthy and reeking of urine and
feces. Willey was left there, naked, for fourteen days. At that
point, he
was
involuntary
committed
to
the Central
New York
Psychiatric Center, where he stayed for six months.
While there, Willey states that he was attacked by deranged,
violent patients; strapped down to a gurney; and injected with
potent psychotropic drugs against his will.
After his stint at the Psychiatric Center, he was returned to
the Wende SHU.
5.
The August 2006 False Misbehavior Report
On August 25, 2006, Willey received another misbehavior report
for allegedly
kicking
a corrections
officer
while he
was
in
restraints on February 10, 2006, the day after his suicide attempt.
The issuing officer is not identified in the Complaint.
-7-
At the disciplinary hearing, H.O. Schoellkopf found Willey
guilty and sentenced him to 180 days in the SHU. On September 17,
2006, Plaintiff wrote to Supt. Kirkpatrick regarding his continuing
“false imprisonment” in SHU, claiming that he had done “nothing
wrong.” Willey also described the history of false misbehavior
reports issued against him, beginning on October 15, 2005. Supt.
Kirkpatrick responded that based on his review of the “hearing
record packet and other related materials,” he found “no reason to
modify [the] disposition as rendered.” Nevertheless, on appeal, SHU
Director Selsky reduced the sentence in connection with the August
2006 misbehavior report.
III. General Legal Principles
A. Summary Judgment Standard
The
standard
for
granting
summary
judgment
is
well
established. Summary judgment may not be granted unless “the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with 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). A
party
seeking
summary
judgment
bears
the
burden
of
establishing that no genuine issue of material fact exists. Adickes
v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). “[T]he movant must
make a prima facie showing that the standard for obtaining summary
judgment
has
been
satisfied.”
-8-
11
Moore’s
Federal
Practice,
§ 56.11[1][a] (Matthew Bender 3d ed.). Where the non-moving party
will bear the burden of proof at trial, the movant may meet its
burden by showing the evidentiary materials of record, if reduced
to
admissible
evidence,
would
be
insufficient
to
carry
the
non-movant’s burden of proof at trial. Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986).
Once the initial burden has been met by the movant, the
non-moving party is required demonstrate that, as to a material
fact, a genuine issue exists. FED. R. CIV. P. 56(e); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “A fact
is ‘material’ only if the fact has some effect on the outcome of
the
suit.”
Catanzaro
v.
Weiden,
140
F.3d
91,
93
(2d
Cir.
1998)(citing Anderson, 477 U.S. at 248). A dispute regarding a
material fact is genuine “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson, 477
U.S. at 248.
The court must draw all reasonable inferences, and resolve all
ambiguities, in favor of the party opposing summary judgment.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986). However, the party opposing summary judgment “may
not
create
an
issue
of
fact
by
submitting
an
affidavit
in
opposition to a summary judgment motion that, by omission or
addition, contradicts the affiant’s previous deposition testimony.”
-9-
Hayes v. New York City, Dept. of Corr., 84 F.3d 614, 619 (2d Cir.
1996) (citations omitted).
Although
a
court
must
read
a
pro
se
litigant’s
papers
liberally, interpreting them “to raise the strongest arguments that
they suggest,” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994),
when alleging a violation of a civil rights statute, even a pro se
litigant must make “specific allegations of fact indicating a
deprivation of rights, instead of a litany of general conclusions
that shock but have no meaning.” Barr v. Adams, 810 F.2d 358, 363
(2d Cir. 1987).
B.
To
42 U.S.C. § 1983
prevail
in
a
Section
1983
action,
a
plaintiff
must
demonstrate that he has been denied a constitutional or federal
statutory right and that the deprivation occurred under color of
state law. 42 U.S.C. § 1983; see also, e.g., West v. Atkins, 487
U.S. 42, 48 (1988); Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.
1996).
Section 1983 itself, however, “creates no substantive
rights;
it
provides
only
a
procedure
for
redress
for
the
deprivation of rights established elsewhere.” Sykes v. James, 13
F.3d 515, 519 (2d Cir. 1993) (citation omitted), cert. denied, 512
U.S. 1240 (1994).
“It is well settled in this Circuit that ‘personal involvement
of
defendants
in
alleged
constitutional
deprivations
is
a
prerequisite to an award of damages under § 1983.’” Wright v.
-10-
Smith, 21 F.3d 496, 501 (2d Cir. 1994). The personal involvement of
a supervisory defendant may be shown by evidence that, inter alia,
the “the defendant, after being informed of the violation through
a report or appeal, failed to remedy the wrong . . . or . . . the
defendant
inmates
exhibited
by
failing
deliberate
to
act
indifference
on
information
to
the
rights
indicating
of
that
unconstitutional acts were occurring.” Colon v. Coughlin, 58 F.3d
865, 873 (2d Cir. 1995)2 (citing Wright, 21 F.3d at 501 (citing
Williams v. Smith, 781 F.2d 319, 323–24 (2d Cir. 1986))).
IV.
Analysis
A.
Issuance of False Misbehavior Reports in Retaliation For
Plaintiff’s Refusal to Act as an Informant
The filing of baseless or false charges against an inmate does
not, in and of itself, give rise to a constitutional violation.
Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986) (An inmate
“has no constitutionally guaranteed immunity from being falsely
accused of conduct which may result in the deprivation of a
protected liberty interest.”). Rather, to maintain an actionable
claim against correction officers for filing a false misbehavior
report, the inmate must be able to show either (1) that he was
2
In Colon, the Second Circuit affirmed summary judgment for
Commissioner of DOCCS and the facility superintendent on the
grounds that, inter alia, the contents of the inmate’s letters to
them was not in the record and therefore the court did not know
“whether the letter was one that reasonably should have prompted
[defendants] to investigate.” 58 F.3d at 873, 874 n.8.
-11-
disciplined without adequate due process as a result of the report;
or (2) that the report was issued in retaliation for exercising a
constitutionally protected right. See Freeman, 808 F.2d at 951-53
(reasoning that the filing of false charges is not a constitutional
violation, as long as the prisoner is granted a hearing and given
an opportunity to rebut the charges); Franco v. Kelly, 854 F.2d
584, 589-90 (2d Cir. 1988) (reversing grant of summary judgment
where prisoner claimed that false disciplinary charges were filed
against him
as
retaliation
for
his
cooperation
with
a
state
investigation into alleged inmate abuse).
Here, Willey has not alleged that the misbehavior reports were
issued in retaliation for his exercise of a constitutionally
protected
right.
However,
the
Complaint
can
be
construed
as
alleging that certain defendants issued false misbehavior reports
against
Plaintiff
and
that
the
defendants
acting
as
hearing
officers denied him of due process at the related disciplinary
hearings. See Complaint ¶ ¶ 19-22, 25-29, 45-48, 55-57, 69-70. In
particular, Willey complains that both H.O. Kearney and H.O.
Schoellkopf
unlawfully
ordered
him
removed
from
various
disciplinary hearings stemming from the false misbehavior reports
issued by C.O. Sztuk and C.O. Roberts.
Under New York State regulations, an inmate has the right to
“be present at the hearing unless he refuses to attend, or is
excluded for reason of institutional safety or correctional goals.”
-12-
N.Y. COMP. CODES R. & REGS., tit. 7, § 254.6. Although an inmate may
bring
a
successful
New
York
Civil
Practice
Law
and
Rules
(“C.P.L.R.”) Article 78 proceeding pursuant to this regulation, a
claim under state law does not necessarily provide a viable due
process claim under 42 U.S.C. § 1983.
Here,
New
York
has
provided
inmates
with
a
procedural
safeguard at their disciplinary hearings–the right to be personally
present–above and beyond that which is required by the federal
Constitution. See Wolff v. McDonnell, 418 U.S. 539 (1974) (ruling
that inmates accused of disciplinary violations be afforded certain
procedures, including 24 -hours notice, the right to call—but not
necessarily to be present during the testimony of—witnesses, and an
impartial tribunal); Francis v. Coughlin, 891 F.2d 43 (2d Cir.
1989). “ A procedural safeguard does not constitute a liberty
interest[.]” Dawes v. Leonardo, 885 F. Supp. 375, 378 (N.D.N.Y.
1995)(citing Patterson v. Coughlin, 761 F.2d 886, 892 (2d Cir.
1985) (noting how the court below had “apparently confuse[d] the
deprivation
of
a
liberty
interest
with
the
denial
of
the
constitutional right to procedural safeguards which is implicated
by that interest”), cert. denied, 474 U.S. 1100 (1986)). “[W]here
that safeguard is not required by the United States Constitution’s
Due Process Clause, its denial cannot constitute a violation of
that clause[.]” Id. (citing Patterson, 761 F.2d at 892 (finding a
section 1983 action permissible where the disciplinary hearing in
-13-
question violated state procedural requirements simultaneously
violated federal due process mandates)). Thus, although it was
violative of Willey’s state regulatory rights to be excluded from
the hearing, his federal constitutional rights were not violated
thereby.
Accordingly,
his
retaliation
claim
premised
on
a
subsequent federal due process violation must fail. See, e.g.,
Livingston v. Kelly, 561 F. Supp.2d 329, 331 (W.D.N.Y. 2008) (“[A]n
inmate’s
allegation
that
he
has
been
found
guilty
of
false
disciplinary charges may support a constitutional claim if he also
alleges that he was denied the minimum procedural due process
protections guaranteed by the Fourteenth Amendment.”) (citations
omitted).
B.
Destruction of Personal Property
Willey alleges that C.O. Sztuk and C.O. Allessandro stole
legal documents from his cell, and destroyed his personal property
(e.g., family photographs and letters). Under Hudson v. Palmer, 468
U.S. 517, 536 (1984), even the intentional destruction of an
inmate's property by a prison officer does not violate the Due
Process Clause if the state provides that inmate with an adequate
post-deprivation remedy. While the loss of property is regrettable,
and even though Willey has alleged that these defendants were
personally
responsible
for
the
loss,
he
has
not
stated
an
actionable constitutional claim because New York state law provides
him with an adequate post-deprivation remedy, i.e., § 9 of the
-14-
Court of Claims Act. Reyes v. Koehler, 815 F. Supp. 109, 114
(S.D.N.Y.
1993)(citing
Blum
v.
Koch,
716
F.
Supp.
754,
762
(S.D.N.Y. 1989); Friedman v. Young, 702 F. Supp. 433, 437 (S.D.N.Y.
1988); DeYoung v. City of New York, 607 F. Supp. 1040, 1042–43
(S.D.N.Y. 1985)); accord, e.g., Murchison v. Keane, No. 94 Civ. 466
CSH, 2000 WL 489698, at *6 (S.D.N.Y. Apr. 25, 2000) (citations
omitted).
C.
Harassment
Willey
alleges
that
C.O.
Allessandro
violated
his
constitutional rights by subjecting him to continuous harassment,
which Willey describes as “psychological, emotional, verbal, and
sexual.” Willey states that C.O. Allesandro would bang on his cell
and
turn
his
light
switch
on
and
off
rapidly.
Also,
Willey
indicates that C.O. Allesandro would stare at him while he was
showering and toweling off, and would make sexually suggestive
comments. Willey does not claim that C.O. Allessandro physically
touched him in a sexual manner, however.
“Although indefensible and unprofessional, verbal threats or
abuse are not sufficient to state a constitutional violation
cognizable under § 1983.” Jermosen v. Coughlin, 878 F. Supp. 444,
449 (N.D.N.Y. 1995) (citing Patton v. Przybylski, 822 F.2d 697, 700
(7th
Cir.
1987)
(derogatory
remarks
do
not
constitute
a
constitutional violation); Emmons v. McLaughlin, 874 F.2d 351, 353
(6th Cir. 1989); Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th
-15-
Cir. 1987); Martin v. Sargent, 780 F.2d 1334, 1338–39 (8th Cir.
1985)). Willey has made no showing of uninvited physical or sexual
contact, nor has he pled such a cause of action in his Complaint.
C.O. Allesandro’s annoying conduct and comments, unaccompanied by
physical threats or attacks, do not amount to a constitutional
violation under § 1983.
D.
Eighth Amendment
Conditions
Violation
Based
Upon
Unsanitary
Willey asserts that C.O. Sztuk and C.O. Allessandro violated
his Eighth Amendment right to be free from cruel and unusual
punishment by turning off the running water to his cell while the
Plexiglas cell shield was in place between December 1, 2005, and
January 10, 2006. At one point in the Complaint, Willey states that
his drinking water and toilet water was shut off for “extensive
lengths of time”. Compl., ¶ 87 (Dkt #1). In the next sentence, he
states that his toilet water was shut off for “seven (7) days,
forcing
plaintiff
to
stay
in
a
plexy
glass
shield
(no
air
circulation) and breathe in air smelling of urine/feces. . . .” Id.
In his response to interrogatories propounded by Willey, C.O.
Allessandro denied “purposely shut[ting] [his] toliet [sic] and
water pressure off in between” December 1, 2005, and January 10,
2006. Dkt #95 at 3, ¶ 9. However, Defendants failed to address this
conditions-of-confinement
claim
in
judgment.
-16-
their
motion
for
summary
“While the Eighth Amendment’s prohibition against cruel and
unusual punishment ‘does not mandate comfortable prisons,’” Gaston
v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001) (quoting Rhodes v.
Chapman, 452 U.S. 337, 349 (1981)), the conditions of confinement
must be at least ‘humane,’” id. (quoting Farmer v. Brennan, 511
U.S. 825, 832 (1994)). An
Eighth Amendment violation based upon
living conditions requires the inmate to show (1) a deprivation
that
is
“objectively,
sufficiently
serious”
of
“the
minimal
civilized measure of life’s necessities,” and (2) a “sufficiently
culpable state of mind” on the part of the defendant official, such
as deliberate indifference to inmate health or safety. Gaston, 249
F.3d at 164 (quoting Farmer, 511 U.S. at 834)(internal quotation
marks omitted in Gaston).
A Section 1983 claim will not lie for prison conditions that
are merely unpleasant,, but chronic exposure to human waste will
give rise to a colorable claim. See Gaston v. Coughlin, 249 F.3d
165–66. In Gaston, the Second Circuit reinstated an inmate’s Eighth
Amendment claim against two defendants where the area in front of
the inmate’s cell “was filled with human feces, urine, and sewage
water” for several consecutive days. The Second Circuit stated that
it was “unwilling to adopt as a matter of law the principle that it
is not cruel and unusual punishment for prison officials knowingly
to allow an area to remain filled with sewage and excrement for
days on end.” Id. at 166. Similarly, in LaReau v. MacDougall, 473
-17-
F.2d 974, 977–79 (2d Cir. 1972), the Second Circuit held that an
inmate who spent five days in a cell that contained only a
grate-covered hole in the floor for a toilet, which could only be
flushed from the outside, was deprived of his Eighth Amendment
rights. The circuit court observed that “[c]ausing a man to live,
eat and perhaps sleep in close confines with his own human waste is
too debasing and degrading to be permitted. The indecent conditions
that existed in this . . . cell seriously threatened the physical
and mental soundness of its unfortunate occupant.” Id. at 978; see
also Wright v. McMann, 387 F.2d 519, 522, 526 (2d Cir. 1967)
(finding 33–day placement of prisoner in strip cell which was
“fetid and reeking from the stench of the bodily wastes of previous
occupants which . . . covered the floor, the sink, and the toilet,”
combined with other conditions, violated Eighth Amendment).
Courts outside of the Second Circuit have reached the same
result where exposure to sewage lasts for a substantial period of
time. See McCord v. Maggio, 927 F.2d 844, 846–47 (5th Cir. 1991)
(finding Eighth Amendment violation where inmate lived in cell for
two years and slept on floor for months “into which rain water and
backed-up sewage leaked”); Williams v. Adams, 935 F.2d 960, 961–62
(8th Cir. 1991) (reversing grant of summary judgment for prison
defendants where plaintiff alleged “that the toilet in the cell did
not work” and overflowed continuously “and the floor stay[ed]
filthy with its wast[e]” over 13–day period); Howard v. Adkison,
-18-
887 F.2d 134, 136–38 (8th Cir. 1989) (holding Eighth Amendment
violation sufficiently proven where inmate lived for two years in
cell where walls, door and food slot “were covered with human
waste,” mattress was “stained with urine and human waste” and pleas
for remedial measures went unanswered); McCray v. Sullivan, 509
F.2d 1332, 1336 (5th Cir. 1975) (finding conditions in isolation
cells where inmates lived for as long as 21 days violated Eighth
Amendment where waste “frequently” overflowed onto the floors of
the cells); Looper v. Sanders, Civil No. 6:10–cv–06037, 2011 WL
861714, at *4–*5, *8 (W.D. Ark. Mar. 10, 2011) (denying defendants’
motion for summary judgment where plaintiff was exposed to raw
sewage for over 10 months); Jones v. Sanders, No. 08–6035, 2009 WL
2432632, at *7 (W.D. Ark. Aug. 7, 2009) (Report and Recommendation)
(recommending denial of defendants’ motion for summary judgment
where plaintiff was exposed to raw sewage for a month and a half).
“Where an inmate's exposure to waste lasts for three or four
days, the Circuits are split.” Ortiz v. Department of Correction of
City
of
New
York,
2011
WL
2638137
(S.D.N.Y.
Apr.
29,
2011)
(comparing Smith v. Copeland, 87 F.3d 265, 269 (8th Cir. 1996)
(affirming summary judgment for defendants where plaintiff was
subjected to an overflowing toilet in his cell for four days), with
McBride v. Deer, 240 F.3d 1287, 1291–92 (10th Cir. 2001) (vacating
Rule 12(b)(6) dismissal where plaintiff alleged he was forced to
live in “feces-covered cell” for three days); Sperow v. Melvin,
-19-
No. 96-4219, 182 F.3d 922, 1999 WL 450786, at *l-*3 (7th Cir.
June
24,
1999)
(unpublished
opn.)
(reversing
Rule
12(b)(6)
dismissal where inmate “was subjected to appalling conditions” of
waste-filled cell “for three full days”); Young v. Quinlan, 960
F.2d 351, 355–56, 363–65, (3d Cir. 1992), superceded by statute on
other grounds as stated in Ghana v. Holland, 226 F.3d 175, 184 (3d
Cir. 2000) (reversing summary judgment for defendants where inmate
was moved to “dry cell” without working toilet for 96 hours and
forced to urinate and defecate in his cell)).
Especially because Willey has adequately pled maliciously
wilful conduct by C.O. Allessandro, rather than mere negligence,
the alleged shut-off of the running water to Willey’s toilet for
several days place this case on the borderline between the levels
of discomfort to be expected in prison and unacceptable, inhumane
conditions. After reviewing the cases cited above, however, the
Court concludes that on the particular facts presented here,
Willey’s conditions-of-confinement claim cannot withstand summary
judgment. First, Willey is vague as to the dates that the alleged
shut-off occurred, and has made conflicting allegations about the
duration (“extensive lengths of time” versus “seven days” versus
the time between December 1, 2005, and January 10, 2006). Second,
Willey has not claimed that human waste from his toilet overflowed
into
his
cell.
See
Smith
v.
United
States,
No.
9:09–CV–729
(TJM/DRH), 2011 WL 777969 at *2, *11 (N.D.N.Y. Feb. 3, 2011)
-20-
(Report
and
Recommendation)
(recommending
denial
of
summary
judgment where inmate alleged that officers “refused to flush the
toilet or provide the inmates with toilet paper for two weeks,”
causing overflow of human waste to spill onto cell floor and inmate
to become “nauseous and lightheaded from the odor”), adopted by,
2011 WL 776150 (N.D.N.Y. Mar. 1, 2011). Third, Willey has not
claimed that he suffered sickness or other ill effects as a result
of the malodorous atmosphere caused by the water shut-off. Contrast
with Sperow, supra (reversing dismissal of complaint where, after
three days of exposure to human feces and urine on the walls and
floor, pieces of a mattress on the floor caked with feces and
urine, and a dozen plastic food trays with decayed food, plaintiff
was had a headache, gastrointestinal and respiratory problems, and
was feverish and sweating); Smith, supra (denying summary judgment
where
inmate
alleged
that
his
exposure
to
raw
sewage
from
overflowing toilet caused sickness and nauseousness).
E.
Imposition of Restricted Diet in Violation of Eighth
Amendment and Due Process
Willey asserts that D.S.S. Monahan placed him on a pre-hearing
restricted diet for seven days, consisting of a loaf of bread
cabbage, in violation of his Eighth Amendment rights. According to
Willey, the bread was usually stale and the cabbage usually rotten.
Willey also asserts a due process claim in connection with his
-21-
request to D.S.S. Monahan to rescind the restricted-diet order
during the seven days.
1.
Eighth Amendment
As stated above, “a prison official violates the Eighth
Amendment
deprivation
only
must
when
be,
two
requirements
objectively,
are
met.
‘sufficiently
First,
the
serious'....
[Second,] a prison official must have a ‘sufficiently culpable
state of mind.’” Farmer, 511 U.S. at 834.
With respect to the first prong, “under certain circumstances
a substantial deprivation of food may well be recognized as being
of constitutional dimension.” Robles v. Coughlin, 725 F.2d 12,
15-16 (2d Cir. 1983) (citations omitted). For instance, “the Eighth
Amendment prohibition against cruel and unusual punishment does
require that prisoners be served nutritionally adequate food . . .
[that does not] present an immediate danger to health and well
being of the inmates who consume it.” Id. at 15 (internal quotation
marks and citation omitted). With respect to the second prong, a
deliberate indifference to inmate health or safety may be shown
where a prison official knew a diet was inadequate and likely to
inflict pain. See Phelps v. Kapnolas, 308 F.3d 180, 186 (2d Cir.
2002).
Courts in this Circuit routinely have dismissed claims similar
to Willey’s, finding that the inmate failed to establish that he
experienced a sufficiently serious deprivation for purposes of the
-22-
Eighth Amendment. See Smith v. Burge, 2006 WL 2805242, at *11
(N.D.N.Y. Sept. 28, 2006) (“Plaintiff does not establish, or even
specifically allege, that (1) the food he was served [i.e., a hard
loaf of bread and an apple per day] was nutritionally inadequate
(e.g., with respect to the total calories it contained, its grams
of carbohydrates, protein, fiber, and fat, or its units of vitamins
and minerals, etc.), (2) that he was physically unable to eat the
food, or (3) that he lost weight during the week in question.”)
(footnotes omitted) & id., n. 78 (citing, inter alia, McEachin v.
McGuinnis, 357 F.3d 197, 199-201 (2d Cir. 2004) (affirming district
court’s F.R.C.P. 12(b)(6) dismissal of Eighth Amendment claim
alleging, inter alia, that inmate was placed on a restricted diet
consisting of “loaf” for seven days)).
2.
Procedural Due Process
To pursue a claim under 42 U.S.C. § 1983 that a defendant
deprived
him
of
his
constitutional
right
to
due
process,
a
plaintiff must show that he “enjoyed a protected interest, and
defendant’s deprivation of that interest occurred without due
process of law.” Taylor v. Rodriguez, 238 F.3d 188, 191 (2d Cir.
2001) (citation omitted). Thus, courts “examine procedural due
process questions in two steps: the first asks whether there exists
a liberty or property interest which has been interfered with by
the State . . . ; the second examines whether the procedures
-23-
attendant upon that deprivation were constitutionally sufficient.
. . .” Kentucky Dept. of Corr., 490 U.S. at 460.
Apparently relying on 7 N.Y.C.R.R. § 304.2,3 Willey asserts
that he was entitled to a hearing before D.S.S. Monahan regarding
his request to be removed from the restricted diet prior to the end
of the seven-day period.
In order to demonstrate the existence of a liberty interest,
the plaintiff must allege facts suggesting that he was subjected to
a deprivation that imposed “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); see also Tellier, 280
F.3d at 80. Willey is hard-pressed to allege or establish such
facts given that the Second Circuit has held that the imposition of
a restricted diet does not impose an “atypical and significant
hardship” on inmates. McEachin v. McGuinnis, 357 F.3d at 200–01
(finding that a seven-day post-hearing restricted diet did not
3
Title 7, Section 304.2 of the New York Code of Rules and
Regulations provides, in pertinent part, as follows:
“The superintendent or his designee may issue a written order
placing an inmate reported to have engaged in conduct described in
subdivision (b) of this section [which conduct includes refusing to
obey a direct order to return a food container at the conclusion of
a meal] on a restricted diet for no more than seven days pending
the outcome of the inmate’s superintendent’s hearing. The order
shall briefly state the reason(s) for the imposition of the
restricted diet and contain the following notice to the inmate:
‘You may write to the deputy superintendent of security or his/her
designee to make a statement as to the need for the continued
pre-hearing imposition of the restricted diet.’. . .”
-24-
impose an atypical and significant hardship). Indeed, several
federal courts “have specifically held that the imposition of a
seven-day pre-hearing restricted diet of ‘loaf’ (imposed without
the issuance of a deprivation order or the holding of a hearing
during the
seven-day
period)
did
not create
an
atypical
and
significant hardship for purposes of the Fourteenth Amendment.”
Smith v. Burge, supra at n.88 (citing Beckford, 151 F. Supp.2d at
208-209, 218-219 & n. 4 (not mentioning 7 N.Y.C.R.R. § 304.2, but
granting defendants motion for summary judgment as to plaintiff’s
due process claims because a seven-day pre-hearing restricted diet
did not impose an atypical and significant hardship); Turnboe v.
Gundy, 25 Fed. Appx. 292, 293 (6th Cir. 2001) (being placed on a
pre-hearing restricted diet consisting of “food loaf” for seven
days does not constitute an “atypical and significant hardship” on
the inmate in relation to the ordinary incidents of prison life);
Thomas v. Virginia, 04-CV-0273, 2005 WL 15517, at *10-11 (W.D. Va.
July 28, 2005)). The Court finds the analysis in these cases,
especially Smith v. Burge, supra, persuasive. Accordingly, the
Court concludes that Willey has failed to establish a procedural
due process claim with respect to the seven-day imposition of a
restricted diet prior to his disciplinary hearing.
V.
Conclusion and Orders
For the foregoing reasons, Defendants’ motion for summary
judgment is granted, and the Amended Complaint is dismissed.
-25-
Plaintiff’s motion for appointment of counsel, asserted in his
opposition to Defendants’ summary judgment motion, is denied as
moot.
Plaintiff is advised that he must file any notice of appeal
with the Clerk’s Office, United States District Court, Western
District of New York, within thirty (30) days of the date of
judgment in this action.
Requests to proceed on appeal as a poor
person must be filed with United States Court of Appeals for the
Second Circuit in accordance with the requirements of Rule 24 of
the Federal Rules of Appellate Procedure.
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
February 4, 2013
Rochester, New York
-26-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?