Willey v. Kirkpatrick et al

Filing 45

DECISION AND ORDER denying 7 Motion to Dismiss; denying 15 Motion to Dismiss. The parties are directed that, within ten days of the date of this Decision and Order, they are to contact the Honorable Marian W. Payson, the United States Magistrate Judge to whom this case is referred for non-dispositive pre-trial matters, to request a new scheduling order.Signed by Hon. Charles J. Siragusa on 10/9/09. (KAP)

U N IT E D STATES DISTRICT COURT W E S T E R N DISTRICT OF NEW YORK _ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ _

AARON WILLEY, Plaintiff, -vsDECISION AND ORDER ROBERT KIRKPATRICK, et al., Defendants.
_ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __

No. 07-CV-6484 CJS

APPEARAN CES F o r Plaintiff: A a ro n W ille y, pro se 0 4 -A -2 0 6 8 F iv e Points Correctional Facility B o x 119 R o m u lu s , New York 14541 E m il J. Bove, Jr., Esq. B e n ja m in A. Bruce, Esq. and Maritza Buitrago, Esq. O n the Briefs 1 A ss is ta n t Attorneys 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

F o r Defendants:

IN T R O D U C T IO N P la in tiff is a prison inmate in the custody of the New York State Department of C o rre c tio n a l Services ("DOCS"), and is suing various DOCS employees pursuant to 42 U .S .C . § 1983 for alleged constitutional violations. Now before the Court are the fo llo w in g applications: 1) a Motion to Dismiss/Motion for Judgment on the Pleadings [#7]

Mr. Bruce subm itte d the brief [#13] on behalf of Jeziorski, and Ms. Buitrago subm itte d the brief [# 1 7 ] on behalf of the other defendants. Mr. Bove did not appear in the case until after briefing was c o m p le t e d .

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b y Jeziorski, made pursuant to FRCP 12(b)(6) and 12(c) ; and 2) a Motion to Dismiss [# 1 5 ] by Kirkpatrick, Monahan, Kerney, Lambert, Roberts, Sztuk, Allessandro, Overhuff, a n d Schoellkopf, made pursuant to FRCP 12(b)(6). For the reasons that follow, the a p p lic a tio n s are denied. BACKGROUND T h e following facts are taken from the Complaint and are presumed to be true for p u rp o se s of this Decision and Order. At all relevant times, Plaintiff was housed at W e n d e C o rr e c tio n a l Facility ("W e n d e ") , and Defendants were all employed at W e n d e . Specifically, Robert Kirkpatrick ("Kirkpatrick") was Superintendent at W e n d e ; M. Monahan ("M o n a h a n ") was Deputy Superintendent for Security; Martin Kerney ("Kerney") was a C o r re c tio n s Captain; Scott Lambert ("Lambert") and Jeff Jeziorski ("Jeziorski") were C o r re c tio n s Sergeants; Taylor Roberts ("Roberts"), M. Sztuk ("Sztuk"), A. Allesandro ("A lle s a n d ro "), and M. Overhuff ("Overhuff") were Corrections Officers; and Tom S c h o e llko p f ("Schoellkopf") was a Hearing Officer. On October 15, 2005, Lambert and Roberts told plaintiff that if he did not assist th e m with an investigation into drug smuggling, they would falsely charge him with p o s s e s s in g a shank weapon. Plaintiff refused to cooperate, and Lambert and Roberts is s u e d a false misbehavior report. Plaintiff was subsequently found guilty at a disciplinary h e a rin g , 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 reh e a rin g , Kerney "unjustly ejected [Plaintiff] from the [hearing]," and found him guilty of the c h a rg e . (Complaint ¶ 28-29). On appeal, the conviction was again set aside. O n November 26, 2005, Sztuk destroyed some of Plaintiff's legal papers, and

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w h e n Plaintiff complained, he and Allesandro falsely accused Plaintiff of making a threat, a n d placed a plexi-glass shield on his cell. Allesandro then turned off the water to P la in tiff's cell, so that he could not flush the toilet. Subsequently, Sztuk, Allesandro, O v e r h u f f and Jeziorksi harassed Plaintiff. O n or about November 28, 2005, Sztuk filed a false misbehavior report against P la in tif f, accusing him of making a threat. At the subsequent disciplinary hearing, Plaintiff a tte m p te d to use videotape evidence to prove that he did not make a threat. However, h e maintains that someone tampered with the surveillance tape to remove the sound and d e stro y the picture quality. Plaintiff was found guilty and sentenced to ninety days in the S p e c ia l Housing Unit ("SHU"). O n December 18, 2005, Overhuff issued another false misbehavior report against P la in tiff. Monahan placed Plaintiff on a pre-hearing restricted diet, and denied Plaintiff's a p p e a l of that decision. At the disciplinary hearing, Schoellkopf refused to allow Plaintiff to question witnesses and ejected him from the hearing. Schoellkopf found Plaintiff guilty a n d sentenced him to thirty days in the SHU. Plaintiff appealed and the conviction was re v e rs e d . O n August 25, 2006, Plaintiff received another false misbehavior report, although th e issuing officer is not identified in the Complaint. (Complaint ¶ 68). At the disciplinary h e a rin g , Schoellkopf "unjustly" found Plaintiff guilty and sentenced him to one hundrede ig h ty days in the SHU. On September 17, 2006, Plaintiff wrote to Kirkpatrick regarding h is continuing "false imprisonment" in SHU, claiming that he had done "nothing wrong." (C o m p la in t Exhibit 16). Plaintiff also described the history of misbehavior reports issued a g a in s t him, beginning on October 15, 2005. Kirkpatrick responded that he reviewed the

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"h e a rin g record packet and other related materials and [found] no reason to modify [the] d is p o s itio n as rendered." (Complaint Exhibit 16). Nevertheless, on appeal, Donald S e ls k y ("Selsky"), DOCS Director of Special Housing, reduced the sentence. O n November 28, 2006, Plaintiff was charged criminally with Promoting Prison C o n tr a b a n d in the First Degree, which charge arose from the false misbehavior report is s u e d by Lambert and Roberts in October 2005. The criminal charge was subsequently d is m is s e d . O n October 4, 2007, Plaintiff commenced this action. The Complaint alleges that D e fe n d a n ts acted "both individually and in concert," but does not allege any claims a g a in s t them in their official capacities. The Complaint demands a "declaratory judgment s ta tin g that defendants violated [Plaintiff's] constitutional rights," as well as compensatory a n d punitive damages. O n March 26, 2008, Jeziorski filed the subject motion [#7], "for an order pursuant to Rules 12(b)(6) 12(c) of the Federal Rules of Civil Procedure." Since Jeziorski has not file d an answer to the complaint, the Court will ignore the reference to Rule 12(c) and will c o n s tru e the application as a motion pursuant to FRCP 12(b)(6). Jeziorski contends that: 1 ) the Complaint fails to allege any personal involvement by him; 2) the claim against him in his official capacity must be dismissed; 3) Plaintiff cannot obtain a declaratory ju d g m e n t against him in his official capacity for past conduct; and 4) he is entitled to q u a lif ie d immunity. (Memo of Law [#13]). O n June 30, 2008, Kirkpatrick, Monahan, Kerney, Lambert, Roberts, Sztuk, A lle s s a n d ro , Overhuff, and Schoellkopf filed a motion [#15] pursuant to FRCP 12(b)(6). Defendants contend that: 1) the complaint fails to allege personal involvement by

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K irk p a tric k ; 2) they cannot be held liable under Section 1983 for issuing false misbehavior re p o rts ; 3) they cannot be sued in their official capacities; 4) Plaintiff cannot obtain a d e cla ra to ry judgment against them in their official capacities for past conduct; and 5) they a r e entitled to qualified immunity. (Memo of Law [#17]). A N A L YS IS D e f e n d a n ts are moving to dismiss under FRCP 12(b)(6). In deciding such a m o tio n , the Court must a c c e p t all factual allegations in the complaint as true and draw all r e a s o n a b le inferences in [the plaintiff's] favor. See ATSI Commc'ns, Inc. v. S h a a r Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007). To survive a Rule 12[b] m o tio n , [the] "complaint must contain sufficient factual matter, accepted as t ru e , to `state a claim to relief that is plausible on its face.' " Ashcroft v. Iq b a l, --- U.S. ----, 129 S.Ct. 1937, 1949, ---L.Ed.2d ---- (2009) (quoting Bell A tl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 9 2 9 (2007)). J o h n s o n v. Rowley, 569 F.3d 40, 43-44 (2d Cir. 2009). 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 lia b le for 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 b e t w e e n possibility and plausibility of entitlement to relief. A s h c ro ft v. Iqbal, 129 S.Ct. at 1949 (citations omitted). In sum, the facts alleged must " p e r m it the court to infer more than the mere possibility of misconduct." Id. at 1950. "Legal conclusions" need not be accepted as true, and "[t]hreadbare recitals of the e le m e n ts of a cause of action, supported by mere conclusory statements, do not s u f f ic e . " Id. at 1949 (citation omitted). However, "[w]hen there are well-pleaded factual a lle g a tio n s , a court should assume their veracity and then determine whether they

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p la u s ib ly give rise to an entitlement to relief." Id. Moreover, since Plaintiff is proceeding pro se, the Court is required to construe h is submissions liberally, "to raise the strongest arguments that they suggest." Burgos v. H o p k in s , 14 F.3d 787, 790 (2d Cir.1994). P laintiff is suing pursuant to 42 U.S.C. § 1983, and the legal principles applicable to such claims are well settled: In order to establish individual liability under § 1983, a plaintiff must show (a) that the defendant is a "person" acting "under the color of state law," and (b) that the defendant caused the plaintiff to be deprived of a federal right. See, e.g., Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Additionally, "[i]n this Circuit personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.1977). *** A n individual cannot be held liable for damages under § 1983 "merely because he held a high position of authority," but can be held liable if he was personally involved in the alleged deprivation. See Black v. Coughlin, 76 F.3d 72, 74 (2d Cir.1996). Personal involvement can be shown by: evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference ... by failing to act on inform ation indicating that unconstitutional acts were occurring. See Colon v. C oughlin, 58 F.3d 865, 873 (2d Cir.1995). B ack v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 122, 127 (2d Cir. 2004). P e rs o n a l Involvement by Jeziorski and Kirkpatrick J e zio rs k i and Kirkpatrick maintain that the Complaint fails to allege any personal in v o lv e m e n t by them. The Court disagrees. Beginning with Jeziorski, the Complaint s ta te s that he supervised Sztuk and Overhuff, "and allowed them to harass plaintiff [in c lu d in g issuing false misbehavior reports (See, Complaint ¶ ¶ 34-38, 42, 47, 51-52)],

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a n d abdicated his legal duty to stop and prevent above listed defendants from harassing p la in tiff; defendant JEFF JEZIORSKI also participated in harassing plaintiff." (Complaint ¶ 4 2 ; see also ¶ 88). As for Kirkpatrick, the Complaint alleges that Plaintiff wrote to him a b o u t the alleged ongoing constitutional violations, and that he responded but did not re m e d y the situation. (Complaint ¶ 72, referring to letter to Kirkpatrick dated September 1 7 , 2006 and response from Kirkpatrick dated October 1, 2006; see also, Id. at ¶ 91: "P la in tiff sent a letter to defendant KIRKPATRICK. . . and the defendant was aware of my fa ls e imprisonment and ongoing harassment, and was deliberately indifferent to my s itu a tio n ."). Specifically, as mentioned earlier, on September 17, 2006, Plaintiff wrote a le tte r to Kirkpatrick, claiming that he was illegally confined in SHU, even though he had d o n e "nothing wrong," and Kirkpatrick responded that he had reviewed "the hearing re c o rd packet and other related materials and f[ou]nd no reason to modify" Plaintiff's s e n te n ce . (Complaint, Exhibits 15 & 16). Such allegations are sufficient to allege J e zio rs k i's and Kirkpatrick's personal involvement at the pleading stage. False Misbehavior Reports S ztu k , Allessandro, Overhuff, Lambert, and Roberts maintain that they cannot be lia b le under Section 1983 for issuing false misbehavior reports. In that regard, they cite, in te r alia, the case of Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997), which held th a t, "a prison inmate has no general constitutional right to be free from being falsely a c c u s e d in a misbehavior report. There must be more, such as retaliation against the p r is o n e r for exercising a constitutional right."(citations omitted).2

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The Court observes, with regard to protected activity, that it is unclear whether there is a

c o n s titu t io n a l right "not to snitch." See, Allah v. Juchenwioz, No. 04-6713-PR, 176 Fed.Appx. 187, 2006 W L 962150 at *2 (2d Cir. Apr. 12, 2006) (Assum in g , arguendo for purposes of the decision, that an inm a t e

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H o w e v e r, retaliation is just one of the two recognized situations in which the is s u a n c e of a false misbehavior report may be actionable under Section 1983; the s e c o n d is where the inmate is denied due process at the disciplinary hearing arising from th e misbehavior report. See, Livingston v. Kelly, 561 F.Supp.2d 329, 331 (W .D .N .Y. 2 0 0 8 ) ("[A]n inmate's allegation that he has been found guilty of false disciplinary charges m a y support a constitutional claim if he also alleges that he was denied the minimum p r o c e d u r a l due process protections guaranteed by the Fourteenth Amendment.") (c ita tio n s omitted); see also, Parker v. City of New York, No. 05 Civ. 1803(PKC)(GW G ) , 2 0 0 8 W L 110904 at *10 (S.D.N.Y. Jan. 7, 2008) ("An inmate has no constitutionally g u a ra n te e d immunity from being falsely accused of conduct which may result in the d e p r iv a tio n of a protected liberty interest. Rather, to maintain an actionable claim against c o rre ctio n officers for filing a false misbehavior report, a plaintiff must be able to show e ith e r: (1) that he was disciplined without adequate due process, as a result of the report; o r (2) that the report was issued in retaliation for exercising a constitutionally protected r ig h t." ) (citations and internal quotations omitted). H e re , the Complaint can be construed as alleging both that Defendants issued fa ls e misbehavior reports against Plaintiff and that he was denied due process at the d is c ip lin a ry hearings. (Complaint ¶ ¶ 19-22, 25-29, 45-48, 55-57, 69-70). Although some o f the allegations concerning the conduct of the hearings are conclusory, Defendants h a v e not addressed the due process aspect of Plaintiff's false misbehavior report claims. Consequently, the application to dismiss the false misbehavior report claims is denied.

has a constitutional right not to becom e an inform a n t, but adding that "[n]either the Suprem e Court nor this C o u r t has ever held that a prisoner enjoys a constitutional right not to becom e an inform a n t . " ) .

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O ffic ia l Capacity Claims D e f e n d a n ts contend that any claims against them in their official capacities, in c lu d in g the claim for a declaratory judgment for past conduct, must be dismissed. However, as mentioned above, the Complaint does not indicate that Defendants are b e in g sued in their official capacities. Consequently, that portion of Defendants' motions is denied as moot. Q u a lifie d Immunity D e fe n d a n ts maintain that the Complaint should be dismissed on the ground of q u a lifie d immunity, since their actions were "objectively reasonable." Qualified immunity is an affirmative defense, and a defendant seeking dismissal on such grounds at the p le a d in g stage faces a "formidable hurdle": A public official is entitled to qualified immunity if his actions do not "violate c le a rly established statutory or constitutional rights of which a reasonable p e rs o n would have known" or "if it was `objectively reasonable' for [the p u b lic official] to believe that his actions were lawful at the time of the c h a lle n g e d act." McClellan v. Smith, 439 F.3d 137, 147 (2d Cir.2006) (in te rn a l quotation marks omitted). "[A] qualified immunity defense can be p re s e n te d in a Rule 12(b)(6) motion, but ... the defense faces a formidable h u rd le when advanced on such a motion" and is usually not successful. M c K e n n a [v. Wright,] 386 F.3d [432,] 434 [(2d Cir. 2004)]. F ie ld Day, LLC v. County of Suffolk, 463 F.3d 167, 191-192 (2d Cir. 2006) (citations o m itte d ). Simply put, the defense may be raised on a 12(b)(6) motion only if it "is based o n facts appearing on the face of the complaint." McKenna v. Wright, 386 F.3d at 436. H e re , Defendants rely on the "objectively reasonable" prong of the qualified im m u n ity defense, but they do not cite any language in the Complaint that would e s ta b lis h that their actions were objectively reasonable. Instead, they state, in conclusory fa s h io n , that "there are no allegations to suggest that any of the defendant[s'] actions

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w e re other than objectively reasonable and therefore they are entitled to qualified im m u n ity and cannot be held liable." (Memo of Law [#13] at 8; Memo of Law [#17] at 9).3 H o w e v e r, the Complaint alleges, among other things, that Defendants conspired to frame Plaintiff for numerous false disciplinary infractions, falsely convicted him of such in f ra c tio n s at several disciplinary hearings at which he was denied due process, d e stro ye d evidence, confined him in a cell without ventilation or running water, and p u rs u e d false criminal charges against him in New York State court, all because he re fu s e d to become an informant. Since it is well-settled that the Court must accept P la in tiff's allegations as true for purposes of the pending motions, the application to d is m is s based on qualified immunity is denied. C O N C L U S IO N D e fe n d a n ts' applications [#7][#15] are denied. The parties are directed that, within te n days of the date of this Decision and Order, they are to contact the Honorable Marian W . Payson, the United States Magistrate Judge to whom this case is referred for nond is p o s itiv e pre-trial matters, to request a new scheduling order. D a te d : Rochester, New York October 9, 2009

E N TE R :

/s/ Charles J. Siragusa CHARLES J. SIRAGUSA U n ite d States District Judge

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One of Defendants' attorneys m a in ta in s that Plaintiff has failed "to allege facts to overcom e the

q u a lif ie d im m u n ity to which the defendants are entitled." (Buitrago Affirm a tio n ¶ 4). However, it is clear th a t "com p la in t s need not anticipate and attem p t to plead around defenses." U.S. v. Northern Trust Co., 3 7 2 F.3d 886, 888 (7 th Cir. 2004).

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