Hill v. Napoli
Filing
58
-CLERK TO FOLLOW UP- DECISION AND ORDER denying with prejudice 26 Plaintiff's Motion for Summary Judgment; denying with prejudice 51 Plaintiff's motion to compel discovery; granting 47 Defendant's motion to dismiss/cross-motion for summary judgment; and dismissing the Complaint in its entirety with prejudice. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 3/31/14. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
____________________________________
MICHAEL HILL,
DECISION AND ORDER
No.6:09-CV-6546-MAT
Plaintiff,
-vsDAVID F. NAPOLI, et al.,
Defendants.
____________________________________
I.
Introduction
Michael Hill (“Plaintiff”), an inmate in the custody of the
New York State Department of Corrections and Community Supervision
(“DOCCS”), brought this pro se action pursuant to 42 U.S.C. §§ 1983
and 1985 against Defendants for alleged violations of his First,
Eighth, and Fourteenth Amendment rights. See Complaint (“Compl.”)
(Dkt #1). Currently before the Court are Plaintiff’s Motions to
Compel
Discovery
(Dkt
#51)
and
Motion
for
Summary
Judgment
(Dkt # 26). Defendants have opposed both of Plaintiff’s motions,
and have cross-moved for dismissal of the Complaint (## 47, 53)
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure
(“Rule 12(b)(6)”).
II.
Preliminary Matters
A.
Treatment of Defendants’ Cross-Motion
Plaintiff’s undated and unsigned Motion for Summary Judgment
(Dkt #26) was received by the Court on November 16, 2010. In it,
Plaintiff requested judgment in his favor “as the record itself
illustrates Defendants acted with the sort of criminally reckless
mental state necessary to be found liable for each cause of action
alleged in the Complaint.” Dkt #26, p. 1 of 69.
On December 4, 2012, the Court (Siragusa, D.J.) issued an
order stating that Plaintiff’s Motion for Summary Judgment would
consist of
the
Statement
of
Facts attached to
his Complaint
(Dkt #1), the summary judgment motion (Dkt #26), and the materials
docketed
as
the
Supplement
to
Motion
for
Summary
Judgment
(Dkt #40). Judge Siragusa also ordered Defendants to file and serve
a response to Plaintiff’s summary judgment motion and his motion to
supplement the Complaint, along with any cross-motion for summary
judgment, on or before January 4, 2013. Defendants sought and
obtained an extension of time until January 23, 2013, to file their
responsive pleadings.
In their Memorandum (Dkt #47) filed January 23, 2013, in
response to Plaintiff’s summary judgment motion, Defendants state
that they are “mov[ing] to dismiss [Plaintiff’s] causes of action
for failure to state a claim upon which relief can be granted as a
matter of law and as for [sic] a response to plaintiff’s motion for
summary judgment.” Dkt #47 at 1. The legal standards cited by
Defendants pertain only to Rule 12(b)(6) and Rule 12(c). See id. at
2-3. Likewise, in their Notice of Motion (Dkt #47-3), Defendants
state they are moving to dismiss “pursuant to Fed. R. Civ. P.
-2-
12(b)(6) and (c), as well as such other and further relief as this
Court
may
deem
just
and
proper.”
Dkt
#47-3
at
1.
However,
Defendants go on to state, “ATTACHED HERETO IS AN IRBY NOTICE FOR
YOUR ATTENTION AND REVIEW”, and they attach the form Irby1 notice
utilized by the Attorney General’s Office when moving for summary
judgment against a pro se litigant. See Dkt #47-3 at 2-3 (capitals
in orignal). Defendants also have submitted various documents and
records
(e.g.,
copies
of
grievance
determinations
and
the
transcript of the disciplinary hearing) that pertain to Plaintiff’s
claims. Plaintiff did not file responsive pleadings to Defendants’
motion.
After reviewing the parties’ submissions, the Court determines
that it is proper to treat Defendants’ motion to dismiss as a
cross-motion for summary judgment. Given that Defendants’ attached
an Irby notice and various documents to their motions, the Court
presumes
that
Defendants
intended
to
cross-move
for
summary
judgment. The Court finds that Plaintiff will not be prejudiced by
this for several reasons: First, Plaintiff was expressly given the
notice required under Second Circuit law by means of the Irby
notice attached
to Defendants’ papers. Second, in his moving
papers, Plaintiff clearly requested summary judgment based on the
1
Irby v. New York City Trans. Auth., 262 F.3d 412, 414
(2d Cir. 2001) (When a party moves for summary judgment against a
pro se litigant, either the movant or the district court must
provide the pro se litigant with notice of the consequences of
failing to respond to the motion.).
-3-
existing
record.
Given
Plaintiff’s
wealth
of
experiencing
litigating § 1983 actions in this Court, there is no question that
he should understand the import of an Irby notice.
B.
Plaintiff’s Attempt to Assert New Claims
Plaintiff’s experience litigating civil rights actions in
federal court raises the issue of whether the Court should lessen
the degree solicitude normally afforded to pro se litigants. The
Second Circuit has noted that “[i]n some circumstances, such as
when a particular pro se litigant is familiar with the procedural
setting as a result of prior experience,” Tracy v. Freshwater, 623
F.3d 90, 102 (2d Cir. 2010), it may be “appropriate to charge [him]
with knowledge of . . . particular requirements,” Sledge v. Kooi,
564 F.3d 105, 109 (2d Cir. 2009) (per curiam). The Court declines
to impose a “general withdrawal of solicitude” here, but finds it
appropriate
to
impose
a
limited
withdrawal
of
solicitude
in
relation to the procedural requirements for asserting new causes of
action. Specifically, Plaintiff has attempted to plead new causes
of
action
in
his
motion
for
summary
judgment.
For instance,
Plaintiff newly asserts that Corrections Officer Timothy Harvey
(“C.O. Harvey”) utilized excessive force against him. In the
Complaint, however, Plaintiff did not assert an excessive force
claim
against
C.O.
Harvey,
although
he
did
include
various
allegations against him. The Court will not countenance Plaintiff’s
attempt to make an end-run around Judge Siragusa’s December 4, 2012
-4-
Order
(Dkt
Complaint.
#43)
denying
Therefore,
the
his
motion
Court
for
strikes
leave
all
to
amend
allegations
his
in
Plaintiff’s summary judgment motion purporting to assert a cause of
action not already pled in his Complaint.
C.
Plaintiff’s Motion to Compel Discovery
In his motion dated March 4, 2013 (Dkt. #51), Plaintiff
asserts that he is entitled to additional discovery in the form of
records and information relating to pest extermination efforts at
Southport for purposes of developing his conditions of confinement
claim, set forth as the fifth cause of action in the Complaint. See
Compl., ¶¶ 71-77. Defendants have opposed Plaintiff’s motion as
untimely. See Declaration of J. Richard Benitez, Esq. (Dkt #53).
Pursuant to the Court’s Rule 16(b) scheduling order (Dkt #11),
the deadline for discovery was December 31, 2010. By the time
Plaintiff filed his motion to compel discovery on March 4, 2013,
more than three years had passed since the expiration of that
deadline. To allow further discovery at this late date requires a
showing of “good cause” and leave of the Court. See FED. R. CIV. P.
16(b); see also, e.g., Carnrite v. Granada Hosp. Group, 175 F.R.D.
439, 446 (W.D.N.Y. 1997). Plaintiff did not seek leave of court for
the instant motion, as required by Rule 16(b). With regard to the
“good cause” requirement, Plaintiff must show “that scheduling
deadlines cannot be met despite [his] diligence.” Carnrite, 175
F.R.D. at 446 (citing 6A Wright, Miller and Kane, FEDERAL PRACTICE AND
-5-
PROCEDURE § 1522.1 at
231
(2nd ed. 1990)). Plaintiff has not
attempted to excuse his late filing, and “good cause” for the more
than
three-year
delay
is
patently
missing
from
the
record.
Therefore, Plaintiff’s motion to compel discovery is denied with
prejudice.
III. Factual Background
In accordance with the rules governing the review of motions
to dismiss pursuant to Rule 12(b)(6), the Court accepts the factual
allegations
set
forth
in
Plaintiff’s
complaint
as
true.
See
Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006)
(citation omitted). The following facts are taken from Plaintiff’s
Complaint
(Dkt
#1),
which
consists
of
a
30-page
“Verified
Complaint,” a 13-page “Statement of Material Facts,” and 96 pages
of exhibits.
A.
Parties
At all times relevant to the instant action, Plaintiff was an
inmate
in
the
custody
of
DOCCS,
incarcerated
at
Southport
Correctional Facility (“Southport”). All Defendants in this action
are or were employees of DOCCS: Corrections Officer Roger Held
(“C.O. Held”), Corrections Officer John Rogers (“C.O. Rogers”),
Corrections Sergeant Timothy Allison (“Sgt. Allison”), C.O. Harvey,
Inmate
Assistant
Jacqueline
Mackey
(“Asst.
Mackey”),
Hearing
Officer James Esgrow (“H.O. Esgrow”), Director of Special Housing
Inmate Disciplinary Hearing Program Norman Bezio (“Dir. Bezio”),
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Corrections Sergeant Randy Hurt (“Sgt. Hurt”), Inmate Grievance
Supervisor William Abrunzo (“IGP Supr. Abrunzo”), Nurse Angie Gorg
(“Nurse Gorg”), Nurse Administrator Cathy Felker (“Nurse Adminr.
Felker”)
and
Southport
Superintendent
David
Napoli
(“Supt. Napoli”).
B.
Plaintiff’s Allegations
1.
The
Misbehavior
Report
Plaintiff’s Property
and
Deprivation
of
On April 5, 2009, Plaintiff was moved to C-Block 8-Company
from C-Block 1-Company at Southport. Immediately following this
transfer, he was confronted by C.O. Held, the supervisor of that
housing
unit.
Plaintiff
requested
his
Level
2
property
from
C.O. Held, who denied him access to his property until two days
later on the basis that Plaintiff allegedly was a member of the
“Blood” gang and because there was no porter available in the
unit.2
On April 14, 2009, upon Plaintiff’s return from a pre-trial
teleconference for one of this other federal lawsuits, C.O. Held
became belligerent, stating, “[Y]ou better not be suing anyone I
know.” Statement (“Stmt.”), ¶ 15 (Dkt #1).
2
Although Plaintiff does not make specific reference in his
Complaint to his definition of “level,” the Court has determined
that Plaintiff is referring to his Progressive Inmate Movement
System (“PIMS”) level, a program employed at Southport by which
Special Housing Unit (“SHU”) inmates may achieve designated
privileges based on improvements in, and maintenance of, acceptable
behavior. E.g., Callender v. State, 956 N.Y.S.2d 792, 794 (N.Y. Ct.
Cl. 2012).
-7-
On
June
5,
2009,
Plaintiff
was
transferred
to
Attica
Correctional Facility on a writ of habeas corpus ad testificandum
so that he could appear at a trial beginning on June 8, 2009. He
was returned to the same unit at Southport on June 23, 2009, where
C.O. Held again made threats toward him.
Shortly thereafter, a conflict on Plaintiff’s housing unit
arose when the inmate unit porter quit his job, and C.O. Held
permitted an unpopular and problematic inmate to serve in that
position.
According
to
Plaintiff,
C.O.
Held’s
supervisors
repeatedly instructed him not to permit this particular inmate out
of his cell, and other inmates complained that this inmate had
contaminated their food and performed inappropriate sexual acts on
the unit. This new unit porter, who has not been identified here,
refused to pick up certain inmates’ food trays and then reported to
the guards that those inmates refused to hand in their trays. The
new porter was fired, and two inmates in C-Block 8-Company were
moved to Level 1 housing unit under “false pretenses”. Plaintiff
does not identify who these inmates were, but the Court presumes,
based on later statements in the Complaint, that Plaintiff was one
of those adversely affected inmates.
According to Plaintiff, C.O. Held did not listen to the
inmates’ complaints about the unit porter, stated that “no Blood
was going to run his company,” and proceeded to write a false
misbehavior
report
against
Plaintiff
-8-
alleging
the
following
disciplinary
rule
violations:
Threats
(102.10),
Area Takeover
(104.10), and Lead Others to Participate in Detrimental Action to
Facility (104.12). Charge 104.10 eventually was stricken, however.
Plaintiff also implicates Sgt. Allison in the writing of this
report.
In addition to demoting Plaintiff to Level 1 status and
placing him in full restraints (handcuffs, waist chain, and leg
irons) during the move, Plaintiff was issued a deprivation order
restricting his access to showers, exercise, cell clean-up, and
haircuts. Furthermore, Sgt. Allison ordered the escorting guards to
destroy Plaintiff’s legal paperwork.
On July 13, 2009 at approximately 3:20 p.m., Plaintiff was
escorted down B-Block 1-Company by C.O. Harvey and another guard in
connection with the misbehavior report. C.O. Harvey returned ten
minutes later with some of Plaintiff’s Level 1 property, at which
time he told Plaintiff, “I read your trial transcripts from that
lawsuit and if you expose yourself on my unit I’m going to hurt you
. . . and as for your property, you [sic] lucky you got what you
[sic] getting now.” Compl., ¶ 39; Stmt., ¶ 15.
To protest the false report, Plaintiff filed two grievances,
forwarded complaints to Assistant Attorney General In Charge Debra
A. Martin and the Commissioner of DOCCS, and spoke with Supt.
Napoli during his rounds. On July 13 or 14, 2009, Supt. Napoli
“treated Plaintiff as a nuisance . . . rolled his eyes and said
-9-
Plaintiff’s
problem
was
nothing
and
for
him
to
stop
writing
grievance complaints.” Stmt., ¶ 17. On August 3, 2009, Plaintiff
again addressed Supt. Napoli about his grievances concerning the
unlawful
destruction
of
his
personal
and
legal
property.
Supt. Napoli replied, “[M]y officers wouldn’t do that, and if they
did, just file a claim . . . I’m tired of investigating and dealing
with complaints from you . . . you know where you went wrong Hill,
you called me Dave, that’s where you went wrong.” Stmt., ¶ 18.
Supt. Napoli thereafter allegedly instructed C.O. Harvey to deprive
Plaintiff of his shower and feed-up.
2.
The Tier III Hearing
At Plaintiff’s request, Asst. Mackey was selected as one of
his
Tier
Assistants.
According
to
Plaintiff,
she
refused
to
interview his witnesses and obtain certain documents for him, and
also instructed Plaintiff to claim that another inmate made the
threats and not to argue that the misbehavior report was false and
retaliatory.
H.O. Esgrow, the Tier III Hearing Officer, then improperly
obtained an extension to continue Plaintiff’s hearing; did not
allow Plaintiff to put relevant facts on the record which would
have exonerated him, and improperly denied witness testimony on the
basis that it was redundant. H.O. Esgrow conducted an off-therecord investigation by taking notes during the hearing, and, when
confronted about it, refused to read into the record the contents
-10-
of his notes. Finally, H.O. Esgrow conferred with Supt. Napoli
regarding the hearing, and they “deliberately prevented Plaintiff
from proving his innocence by showing the ongoing pattern of abuse”
by C.O. Held and Sgt. Allison in issuing false misbehavior reports
and threatening inmates. Stmt., ¶ 29.
At
the
conclusion
of
the
hearing
on
August
17,
2009,
H.O. Esgrow found Plaintiff guilty of Demonstration (104.12) and
Threats (102.10), and imposed a penalty of six months in SHU
starting January 27, 2010. There was a lesser penalty imposed for
three months, but the Court cannot discern it because H.O. Esgrow’s
handwriting
is
illegible.
On
September
17,
2009,
Dir.
Bezio
affirmed H.O. Esgrow’s determination, and on September 30, 2009, he
denied reconsideration. According to Plaintiff, Dir. Bezio refused
to correct numerous procedural errors.
3.
Unclean Cell Conditions
Plaintiff was forced to move into an unsanitary cell that had
ants crawling on it, a dirty floor, and a toilet that “reeked of
stale urine.” Compl., ¶ 74. He was unable to clean the cell, and he
complained of being sick every day. However, the nurses only
claimed to have received one sick call slip from him. Id., Ex. F.
4.
IGP
Interference With Grievance Procedure
Supr.
Abrunzo
deliberately
prevented
Plaintiff’s
grievances and appeals from being processed so as to interfere with
-11-
Plaintiff’s
efforts
to
exhaust
his
remedies
against
DOCCS
employees.
5.
Denial of Adequate Medical Treatment
Nurse Gorg deliberately refused to properly assess his skin
condition so that a doctor or physician’s assistant could be
notified and be able to assess him. Further, Nurse Gorg denied
Plaintiff sick call by refusing to examine his skin rash and
provide him with adequate medical treatment. When he complained,
she threatened to write a false misbehavior report against him.
After Plaintiff filed a grievance against Nurse Gorg, she
“immediately attacked” him by attempting to give him a tuberculosis
(“TB”) vaccination. Nurse Gorg did not have him quarantined as a
result of his refusal to be vaccinated, and instead placed him in
the same housing unit as other inmates. She instructed the guards
to deny him all privileges and liberties until he allowed her to
administer the TB shot.
Nurse Adminr. Felker deliberately caused Plaintiff to go
untreated for his skin rash (which he claimed was eczema) and
caused other skin treatments to be delayed. Nurse Adminr. Felker
refused to access Plaintiff’s medical records and did not examine
Plaintiff herself before agreeing with the facility nurses that he
did not have eczema. Nurse Adminr. Felker allowed Nurse Gorg to
retaliate against Plaintiff by causing him to be denied visits,
recreation, a job as a unit porter, and other activities.
-12-
IV.
Relevant Legal Standards
A.
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. See 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). “[P]ersonal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of
damages under § 1983.” Farid v. Ellen, 593 F.3d 233, 249 (2d Cir.
2010).
B.
Rule 12(b)(6) Motions to Dismiss
In Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), the
United States Supreme Court clarified the standard to be applied to
a 12(b)(6) motion, noting that “[f]actual allegations must be
enough to raise a right to relief above the speculative level, on
the assumption that all the allegations in the complaint are true
(even if doubtful in fact). Twombly, 550 U.S. at 555. Although for
the purposes of a motion to dismiss, the court must take all of the
factual allegations in the complaint as true, it “[is] not bound to
-13-
accept as true a legal conclusion couched as a factual allegation.”
Id.
When presented with a Rule 12(b)(6), the court may consider
documents that are referenced in the complaint, documents that the
plaintiff relied on in bringing suit and that are either in the
plaintiff’s possession or that the plaintiff knew of and relied on
when bringing suit, or matters of which judicial notice may be
taken. E.g., Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53
(2d Cir. 2002) (citations omitted). A court considering a motion to
dismiss a pro se complaint “must construe [the complaint] broadly,
and interpret [it] to raise the strongest arguments that [it]
suggests.” Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000).
However, a pro se party opposing a motion to dismiss still must
come forward with factual allegations that are enough to raise a
right to relief “above the speculative level.” Twombly, 550 U.S. at
555. Thus, where a plaintiff “ha[s] not nudged [his] claims across
the line from conceivable to plausible, [his] complaint must be
dismissed.” Id.
C.
Rule 56(c) Motions for Summary Judgment
Summary
judgment
is
warranted
when
“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.” Celotex Corp. v. Catrett, 477
-14-
U.S. 317, 322 (1986) (citing FED. R. CIV. P. 56(c)); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A
material fact is genuinely in dispute “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 resolve any ambiguities and draw all inferences
from the facts in a light most favorable to the non-moving party.
Niagara Mohawk Power Corp. v. Jones Chem., Inc., 315 F.3d 171, 175
(2d Cir. 2003) (citing Anderson, 477 U.S. at 255). Summary judgment
is inappropriate where “review of the record reveals sufficient
evidence for a rational trier of fact to find in the [non-movant’s]
favor.”
Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir.
2002) (citations omitted).
To survive a Rule 56(c) motion, the nonmovant must come
forward with “‘specific facts showing that there is a genuine issue
for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986) (quoting FED. R. CIV. P. 56(e) (italics in
original)). Summary judgment is not defeated by “[c]onclusory
allegations, conjecture, and speculation[,]” Kerzer v. Kingly Mfg.,
156 F.3d 396, 400 (2d Cir. 1998), or the “mere existence of a
scintilla of evidence[,]” Anderson, 477 U.S. at 252, supporting the
non-movant’s case.
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V.
Discussion of Plaintiff’s Claims
A.
Retaliation
Plaintiff first alleges that one of his previous federal
lawsuits, Hill v. Washburn, et al., No. 6:08-CV-6285 (W.D.N.Y.), is
the motivating factor behind for Defendants’ adverse acts against
him, including C.O. Held’s false misbehavior report; unauthorized
cell searches; and the destruction of his property. Compl., ¶¶ 3342.
In order to state a valid retaliation claim, Plaintiff must
allege that his actions were protected by the Constitution, and
that such “conduct was a substantial or motivating factor for the
adverse actions taken by prison officials.” Bennett v. Goord, 343
F.3d 133, 137 (2d Cir. 2003) (citations omitted). “A plaintiff
cannot state a retaliation claim in wholly conclusory terms, but
rather, must provide a pleading that is ‘supported by specific and
detailed factual allegations.’” Anderson v. Lapolt, No. 07–CV–1184,
2009 WL 3232418, at *5 (N.D.N.Y. Oct. 1, 2009) (quoting Friedl v.
City of N.Y., 210 F.3d 79, 85–86 (2d Cir. 2000)). The Second
Circuit has cautioned that, “because prisoner retaliation claims
are
easily
fabricated,”
courts
must
be
“careful
to
require
non-conclusory allegations.” Bennett, 343 F.3d at 137 (quotation
omitted).
The
filing
of
a
§
1983
lawsuit
is
considered
a
constitutionally protected activity. Bounds v. Smith, 430 U.S. 817,
-16-
821–32 (1977). The issuance of a false misbehavior report and the
destruction
of
an
inmate’s
personal
property
can
constitute
“adverse actions” for retaliation purposes. See Gill v. Pidlypchak,
389 F.3d 379, 384 (2d Cir. 2004) (misbehavior report); Smith v.
City of N.Y., No. 03 Civ. 7576(NRB), 2005 WL 1026551, at *3
(S.D.N.Y.
May
3,
2005)
(destruction
of
property).
However,
Plaintiff has failed to allege a sufficient “causal connection
between the protected speech and the adverse action[,]” Gill, 389
F.3d at 380 (citation omitted). Plaintiff’s 2008 lawsuit did not
involve any of the defendants named in this action. Moreover, the
events alleged in that lawsuit predated C.O. Held’s conduct by two
years and involved conduct (the alleged mishandling of Plaintiff’s
mail)
wholly
unrelated
to
the
conduct
complained
of
here.
Accordingly, Plaintiff has failed to make sufficient allegations
regarding the “nexus” element of a retaliation claim. See, e.g.,
Burkybile v. Board of Educ. of Hastings-On-Hudson Union Free Sch.
Dist.,
411
F.3d
306,
314
(2d
Cir.
2005)
(in
employment
discrimination case, plaintiff failed to establish “causal nexus”
because more than a year passed between the protected activity and
the adverse employment action).
Defendant’s motion to dismiss this cause of action for failure
to state a retaliation claim is granted. Plaintiff’s motion for
summary judgment with regard to this claim necessarily is denied.
-17-
B.
Violations of Due Process
1.
Destruction of Property
Plaintiff asserts that his personal property and legal papers
were deliberately destroyed when he was transferred to PIMS Level
1. With regard to the personal property and legal papers, even the
intentional destruction of an inmate’s belongings by a prison
officer does not violate the Due Process Clause if the state
provides that inmate with an adequate post-deprivation remedy.
Hudson v. Palmer, 468 U.S. 517, 536 (1984). because New York state
law provides him with an adequate post-deprivation remedy under
Section 9 of the New York Court of Claims Act, Plaintiff has not
stated an actionable due process claim. Reyes v. Koehler, 815 F.
Supp.
109,
114
(S.D.N.Y.
1993)
(collecting
cases);
see
also
Richardson v. Coughlin, 101 F. Supp.2d 127, 133 (W.D.N.Y. 2000).
Although Plaintiff asserts that his due process rights were
violated in regards to the alleged destruction of his legal papers,
this claim more properly is analyzed under the First Amendment.
“The active interference of prison officials in the preparation or
filing of legal documents may constitute denial of access” to the
courts.
Toliver v. City of N.Y., No. 10 Civ. 5806(SHS)(JCF), 2013
WL 6476791, at * (S.D.N.Y. Dec. 10, 2013) (citing Lewis v. Casey,
518 U.S. 343, 350 (1996)). However, Plaintiff merely states that
C.O. Harvey read his trial transcripts and destroyed a “large
portion” of his legal papers. Compl., ¶ 29. He does not allege that
-18-
his ability to pursue some criminal or civil case was hindered by
C.O. Harvey’s alleged actions. Therefore, Plaintiff cannot state a
First Amendment denial of access claim. See Lewis, 518 U.S. at 349
(noting the requirement of an “actual injury” for a right-of-access
claim); Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003) (actual
injury
occurs
only
when
the
loss
of
the
inmate’s
pleadings
prejudiced his ability to pursue a legal claim; mere delay is not
enough) (citations omitted).
Defendant’s motion to dismiss this cause of action for failure
to state a claim in regards to the destruction of his property and
legal papers is granted. Plaintiff’s motion for summary judgment
with regard to this claim necessarily is denied.
2.
Mechanical Restraints
Plaintiff alleges that Defendants violated his due process
rights by placing him in mechanical restraints during his transfer
to Level 1. See Compl., ¶¶ 48-49. To state a cognizable due process
claim, he must allege that (1) he possessed a liberty interest, and
(2) Defendants deprived him of that interest without sufficient
process. Giano v. Selsky, 238 F.3d 223, 225 (2d Cir. 2001). Even
assuming that an inmate has a liberty interest in being free from
bodily restraints while incarcerated, cf. Callender, 956 N.Y.S.2d
at 794 (varying gradations of deprivation to which inmate was
subjected based on Southport’s classification system regarding such
matters as restraints, possessions, and number of showers, were not
-19-
“significant” for due process purposes), Plaintiff does not allege
facts to support the claim that he was restrained without due
process by being placed him in full restraints following the
issuance of the July 13, 2009 misbehavior report.
The
exhibits
attached
to
his
Complaint
indicate
that
a
restraint order was entered on July 13, 2009, when Plaintiff was
issued a misbehavior report for attempting to “usurp the authority
of the facility”. The restraint order was reviewed and renewed
every six days until August 9, 2009. Plaintiff also had the ability
to
file
a
grievance,
write
to
the
Deputy
Superintendent
of
Security, and file a proceeding pursuant to New York Civil Practice
Law and Rules (“C.P.L.R.”) Article 78 in connection with the
restraint order. In light of review he received and the legal
avenues
available
process. Black
v.
to
him,
Goord,
Plaintiff
03-CV-6155,
was
afforded
2007
WL
sufficient
3076998,
at
*5
(W.D.N.Y. Oct. 19, 2007). Because the documents incorporated into
Plaintiff’s Complaint contradict his allegations, the Court need
not accept them as true. E.g., Sazerac Co. v. Falk, 861 F. Supp.
253, 257 (S.D.N.Y. 1994) (citing Feick v. Fleener, 653 F.2d 69, 75
& n.4 (2d Cir. 1981)).
Defendants’s motion to dismiss Plaintiff’s due process claim
regarding
the
mechanical
restraint
order
is
granted,
and
Plaintiff’s motion for summary judgment on this claim is denied.
-20-
3.
Deprivation Order
Plaintiff asserts that he was deprived of a liberty interest
with regard to the deprivation order commencing July 13, 2009,
restricting his access to haircuts, cell clean-up, shower, and
recreation.
Complaint,
Based
the
on
the
deprivation
documents
orders
attached
were
limited
to
Plaintiff’s
in
time.
For
instance, cell clean-up privileges were restored on July 19, 2009;
and shower privileges were restored on July 31, 2009. Courts in
this Circuit have held that the types of deprivations complained of
here do not constitute protected liberty interests. See, e.g.,
Pettus v. Geaver, No. 04–CV–228, 2007 WL 295313, at *2 (N.D.N.Y.
Jan. 10, 2007) (“[A]lthough [plaintiff] contends that he was
deprived of shower[s], recreation, toothbrush and toothpaste for 21
days, he has failed to demonstrate that given the limited period of
deprivation, these conditions gave rise to a protected liberty
interest.”) (citations and internal quotations omitted; alteration
in original).
Defendants’ motion to dismiss Plaintiff’s due process claim
based on the deprivation is granted, and Plaintiff’s motion for
summary judgment on that claim is denied.
C.
Constitutional Violations at Tier III Hearing
In the third cause of action, Plaintiff alleges that he was
denied due process in various ways at the Tier III Hearing relating
-21-
to the July 13, 2009 misbehavior report issued by C.O. Held.
Compl., ¶¶ 54-60.
1.
False Misbehavior Report
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
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, Plaintiff has alleged both that the misbehavior report
was retaliatory and that he was denied due process at the Tier III
hearing. However, as discussed above, the Court has found that
-22-
Plaintiff fails to state a claim of retaliation. The Court thus
will assess whether Plaintiff alleges a viable due process claim
arising out of the Tier III hearing.
2.
Due Process at Tier III Hearing
Plaintiff asserts that (1) H.O. Esgrow failed to return to the
disciplinary
hearing
following
an
adjournment
and
filed
an
extension under false pretenses; (2) H.O. Esgrow failed to call
employee witnesses at Plaintiff’s hearing; (3) H.O. Esgrow did not
permit testimony from an inmate witness; (5) H.O. Esgrow interfered
with Asst. Mackey so as to prevent Plaintiff from presenting a
defense; (6) Asst. Mackey refused to provide certain materials
relevant to Plaintiff’s defense; and (7) Asst. Mackey advised
Plaintiff to “inform on another inmate”. See Compl., ¶¶ 55-61.
Due process under the Fourteenth Amendment requires that an
inmate charged with a disciplinary violation be given (1) advance
written notice of the charges at least 24 hours before the hearing;
(2) the opportunity to appear at the hearing, to call witnesses,
and to present rebuttal evidence; and (3) a written statement by
the hearing officer as to the evidence relied on for his decision,
and the reasons for the disciplinary action taken. Freeman, 808
F.2d at 953 (citing Wolff v. McDonnell, 418 U.S. 539, 564–66
(1974)).
-23-
a.
Plaintiff
Adjournments
asserts
that
H.O.
Esgrow
did
not
comply
with
New York regulations when he requested adjournments for the Tier
III hearing. The Second Circuit has made clear that the seven-day
period established by New York State regulations is not controlling
for purposes of an inmate’s due process claim. Russell v. Coughlin,
910 F.2d 75, 78 n. 1 (2d Cir. 1990). Plaintiff’s claim is not
cognizable in a § 1983 action. Hyman v. Holder, No. 96 Civ. 7748,
2001 WL 262665, at *6 (S.D.N.Y.
Mar. 15, 2001) (citing, inter
alia, Doe v. Connecticut Dept. of Child & Youth Servs., 911 F.2d
868, 869 (2d Cir. 1990)); see also Loving v. Selsky, 2009 WL 87452,
at *4 (W.D.N.Y. Jan. 12, 2009).
b.
Failure to Call Witnesses
According to Plaintiff, H.O. Esgrow improperly failed to call
employee witnesses at Plaintiff’s hearing and did not permit
testimony inmate Deatrick Marshall to testify. The Second Circuit
has stated that “‘a prisoner’s request for a witness can be denied
on the basis of irrelevance or lack of necessity.’” Scott v. Kelly,
962 F.2d 145, 147 (2d Cir. 1992) (quoting Kingsley v. Bureau of
Prisons,937 F.2d 26, 30 (2d Cir. 1991) (citing
Ponte v. Real, 471
U.S. 491, 496 (1985) (quotation omitted)).
The transcript of the Tier hearing, produced by Defendants in
response to Plaintiff’s summary judgment motion, refutes his claim.
Plaintiff admitted that two of the employee witnesses, Sgt. Butler
-24-
and Sgt. Shope, were not on the gallery at the time of the
incident; another employee, named Sandroni, was not even working
that day. Three of Plaintiff’s inmate witnesses (Williams, Perkins,
Holyfield) testified favorably for his defense. Plaintiff admitted
that the uncalled witness, Deatrick Marshall, would not have
provided any testimony different from that already provided by
Williams, Perkins, and Holyfield, and H.O. Esgrow determined that
Marshall’s testimony would be cumulative. With regard to each of
the uncalled witnesses, H.O. Esgrow properly provided legitimate
reasons, in writing and at the time of the hearing, for his
decision not to have them appear. H.O. Esgrow thus fully complied
with federal constitutional requirements in regard to Plaintiff’s
right to call witnesses. Cf. Ponte, 471 U.S. at 495-500 (prison
officials not required to justify exclusion of witnesses at the
time of disciplinary hearing, but may give reasons at later court
challenge).
c.
Inmate Legal Assistance
Under the due process clause of Fourteenth Amendment, a
corrections officer assigned to assist a prisoner who, by reason of
his confinement
in
a
segregated
housing
unit,
is
impeded
in
preparing his defense, has obligation to perform the investigatory
tasks which inmate, were he able, could perform for himself. Eng v.
Coughlin, 858 F.2d 889, 897 (2d Cir. 1988). However, an inmate’s
right to assistance, which derives from the Due Process clause, is
-25-
significantly less than the right to counsel guaranteed by the
Sixth Amendment to criminal defendants. Silva v. Casey, 992 F.2d
20, 22 (2d Cir. 1993) (per curiam).
Again,
the
documents
submitted
by
both
Plaintiff
and
Defendants’ refute Plaintiff’s complaints about Asst. Mackey, who
verified in writing to H.O. Esgrow that she interviewed all of
Plaintiff’s requested witnesses, and that they all agreed to
testify that Plaintiff never made any threats about the food trays
or porters. With regard to his claim that she failed to provide him
the log book entries for several months prior to the incident, for
purposes of showing that C.O. Held had a history of issuing similar
false misbehavior reports, this information was not relevant to the
issues to be determined at the hearing, i.e., whether or not
Plaintiff made threats. See Johnson v. Scully, 194 A.D.2d 605, 606
(2d Dep’t 1993) (rejecting claim that employee assistant deprived
inmate of due process in failing to provide documents where inmate
was charged with possessing contraband and interfering with the
search of his cell, and requested information would have, according
to the petitioner, helped determine whether the correction Officer
who searched his cell did so in retaliation for prior events”; the
motivation for the search had no bearing on the issues at the
hearing, i.e., whether the inmate possessed the contraband and
interfered with the search) (citing 7 N.Y.C.R.R. 254.6(c); Matter
of
Irby
v.
Kelly,
161
A.D.2d
860,
-26-
556
N.Y.S.2d
409).
Thus,
Plaintiff “was not prejudiced by the alleged omissions of his
assistant or deprived of due process[.]” Id. (collecting cases)).
d.
Tier Hearing In Compliance With Due Process
Requirements
If, as the Court has found, the Wolff due process requirements
have been met, the disciplinary finding will be upheld if there is
“some evidence” to support it. Superintendent, Mass. Corr. Inst.,
Walpole v. Hill, 472 U.S. 445, 453–55 (1985) (emphasis added)). The
Hill standard is not demanding, and it is satisfied if “there is
any evidence
(emphasis
in
in
the
record
original).
that
The
supports”
Constitution
the
decision. Id.
“does
not
require
examination of the entire record, independent assessment of the
credibility of witnesses, or weighing of the evidence.” 472 U.S. at
455.
Plaintiff has attached H.O. Esgrow’s written findings to his
Complaint,
which
indicate
that
H.O.
Esgrow
relied
on
the
misbehavior report, which contained the allegation that Plaintiff
yelled, “[T]hat fucker in 20 cell ain’t coming out, I’ll make sure
no one returns their trays if he’s out. You people don’t pick who
the porter is, we will tell you who’ll come out,” in addition to
the
eyewitness
testimony
of
C.O.
Held.
Compl.,
Exs.
K
&
P.
“New York State courts have found that a misbehavior report,
together with the eyewitness testimony of its author, meets the
state
law
standard
of
‘substantial
-27-
evidence’
to
support
a
determination of guilt in the prison disciplinary context.” Faulk
v. Fisher, No. 09-CV-6377(MAT), 2012 WL 2953229, at *6 (W.D.N.Y.
July 19, 2012) (citations omitted). District courts in this Circuit
have found that proof sufficient to satisfy the “substantial
evidence” standard imposed by New York State law necessarily
satisfies
Hill’s
less
demanding
“some
evidence”
test.
Id.
(collecting cases). Thus, Plaintiff’s due process claim fails as a
matter of law. Id.
e.
Errors on Administrative Appeal
Plaintiff alleges that Dir. Bezio erroneously refused to
expunge or reverse H.O. Esgrow’s adverse disciplinary finding.
Since, as discussed above, Plaintiff has failed to show that his
rights were violated during the disciplinary proceeding conducted
by H.O. Esgrow, there is no legal basis for his claim against Dir.
Bezio. Clyde v. Schoellkopf, 714 F. Supp.2d 432, 439 (W.D.N.Y.
2010) (citing, inter alia, Black v. Selsky, 15 F. Supp.2d 311, 318
(W.D.N.Y. 1998)).
D.
Conspiracy
The fourth cause of action in the Complaint alleges that
Defendants, acting together, “condoned, encouraged, directed and
assisted the actions of the others in a deliberate effort to single
out Plaintiff for harsh, arbitrary, and discriminatory treatment”
because of Plaintiff’s status as a Hebrew Israelite. Compl., ¶¶ 63-
-28-
64. The alleged conspiracy claims are brought pursuant to 42 U.S.C.
§§ 1983 and 1985.
“To prove a § 1983 conspiracy, a plaintiff must show: (1) an
agreement between two or more state actors or between a state actor
and
a
private
entity;
(2)
to
act
in
concert
to
inflict
an
unconstitutional injury; and (3) an overt act done in furtherance
of that goal causing damages.” Pangburn v. Culberson, 200 F.3d 65,
72 (2d Cir. 1999). “[A] complaint containing only conclusory,
vague, or general allegations of conspiracy to deprive a person of
constitutional rights cannot withstand a motion to dismiss.” Boddie
v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997).
Plaintiff does not allege sufficient facts to establish any
element of a § 1983 conspiracy claim. Rather, he merely recites
each Defendant’s allegedly improper actions and omissions which,
taken individually or together, fail to state a constitutional
violation, as discussed elsewhere in this Decision and Order. See
Droz v. McCadden, 580 F.3d 106, 109 (2d Cir. 2009) (“Because
neither of the underlying section 1983 causes of action can be
established, the claim for conspiracy also fails.”); other citation
omitted); Romer v Morgenthau, 119 F. Supp.2d 346, 363-64 (S.D.N.Y.
2000)
(similar)
(citations
omitted).
Further,
Plaintiff’s
allegation that the Defendants acted in concert and at the behest
of
Supt.
Napoli
is
entirely
conclusory
and
cannot
survive
Defendants’ motion to dismiss. See Boddie, 105 F.3d at 862 (where
-29-
inmate’s claim that the officers conspired to retaliate against him
was “‘unsupported, speculative, and conclusory’”, it could be
dismissed on the pleadings) (quotation and citations omitted).
To sustain a cause of action for conspiracy under § 1985(3),
a plaintiff must allege and demonstrate that the defendants acted
with racial or other class-based animus in conspiring to deprive
him of equal protection of the laws or equal privileges and
immunities secured by law. E.g., Gagliardi v. Village of Pawling,
18 F.3d 188, 194 (2d Cir. 1994) (citing 42 U.S.C. § 1985(3)); Mian
v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d
Cir. 1993). Although a plaintiff need not offer proof of an
explicit agreement, e.g., United States v. Rubin, 844 F.2d 979, 984
(2d Cir. 1988), he nevertheless must make more than
“conclusory,
vague, or general allegations of conspiracy.” Sommer v. Dixon, 709
F.2d 173, 175 (2d Cir. 1983) (per curiam).
Here,
Plaintiff’s
allegations
of
a
conspiracy
based
on
§ 1985(3) are no less vague and conclusory as those offered in
support of his § 1983 claim, and they fail to state claim upon
which relief may be granted. Defendants’ motion to dismiss the
conspiracy claims is granted, and Plaintiff’s motion for summary
judgment is denied.
E.
Conditions of Confinement
Plaintiff contends he was placed in a cell that was dirty,
infested with ants, and smelled of urine, and that these conditions
-30-
violated his Eighth Amendment rights. Compl., ¶¶ 70-77. He asserts
he suffered from “sickness stomach pain diarrhea vomiting for days.
. . .” Id., ¶ 75. He also asserts that he was deprived of meals for
72
hours,
although
he
does
not
specify
when
this
allegedly
occurred.
1.
Cell Conditions
An Eighth Amendment claim based on the physical condition of
a correctional facility requires both a showing that the plaintiff
lacked “the minimal civilized measure of life’s necessities” while
confined, and that the person responsible for this deprivation
acted with knowledge and deliberate indifference to a substantial
risk to his health or safety. Wilson v. Seiter, 501 U.S. 294, 298,
299 (1991); see also Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir.
2002). Plaintiff has not alleged that Defendants deprived him of
any of his basic human needs or exposed him to conditions that
unreasonably posed a substantial risk of harm to his future health.
General allegations of uncleanliness, such as Plaintiff’s here, are
insufficient to state an Eighth Amendment claim. Williams v.
Carbello, 666 F. Supp.2d 373, 379 (S.D.N.Y. 2009).
Although the Second Circuit has found 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[,]” LaReau v.
MacDoughall, 473 F.2d 974, 978 (2d Cir. 1972), Plaintiff merely has
alleged that the cell in which he was housed for a period of time
-31-
“smelled of urine.” Contrast with LaReau, 473 F.3d at 978 (inmate
spent five days in a cell that contained only a grate-covered hole
in floor that could only be flushed from outside was deprived of
Eighth Amendment rights).
With regard to the ants allegedly
“crawling around the floor”, Plaintiff has not alleged that he was
objectively exposed to a grave risk of harm, or that any particular
defendant acted with a sufficiently culpable state of mind. “A
Section 1983 claim will not lie for prison conditions that are
merely unpleasant.” Ortiz v. Department of Corr., 08 Civ. 2195,
2011
WL
2638137,
at
*6
(S.D.N.Y.
Apr.
29,
2011),
report
&
recommendation adopted, 2011 WL 2638140 (S.D.N.Y. July 5, 2011).
With regard to his claim that the cell conditions caused him
to be ill and that Defendants allowed his condition to remain
untreated,
his
allegations
are
contradicted
by
his
annexed
exhibits, and the Court declines to accept them as true. In
particular,
from
C.
Yehl
Plaintiff references a Captain’s Office Memorandum
to
Plaintiff
dated
July
31,
2009,
noting
that
“according to the Facility Medical Department, [Plaintiff] [has]
been seen by a nurse for sick
call several times since the
complaint was submitted.” Ex. F (Dkt #1). See Rapoport v. Asia
Electronics Holding Co., 88 F. Supp.2d 179, 184 (S.D.N.Y. 2000)
(holding that where documents relied on in drafting the complaint
contradict the complaint, “the documents control and this Court
need not accept as true the allegations of the amended complaint”).
-32-
2.
Deprivation of Meals
Plaintiff also alleges, without further specificity, that
prison guards were “deliberately not feeding him any food for 72
hours.” Compl., ¶ 77. Plaintiff does not mention the alleged
deprivation of food elsewhere in his Complaint, including his
statement of material facts.
“While no court has explicitly held that denial of food is a
per se violation of a prisoner’s Eighth Amendment rights, 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 (2d Cir. 1983) (internal and other
citations omitted). The Complaint does not state how many meals
Plaintiff allegedly was denied, by whom, or for what reason–it only
posits that the unnamed guards did so upon the orders of Supt.
Napoli. Compl., ¶ 77. These conclusory allegations fail to state a
plausible claim against Supt. Napoli or the unidentified guards
under
Section
(GLS)(DEP),
1983.
2010
WL
See
Dorsey
2008966,
at
v.
*12
Fisher,
No.
(N.D.N.Y.
9:09–CV–1011
May
19,
2010)
(“Dorsey alleges that defendant Racette is the ‘son of Past Clinton
Warden’ and like his father, lets officers beat and kill inmates
and then covers it up. These conclusory allegations fail to state
a plausible claim against Racette pursuant to Section 1983.”)
(internal citation to record omitted).
-33-
F.
Improper Handling of Grievances
Plaintiff advances a claim that IGP Supr. Abrunzo conducted
inadequate investigations into his complaints and interfered with
his
grievances.
Compl.,
¶¶
78-82.
“[T]he
law
is
clear
that
plaintiff has no constitutional right to have his grievances
processed at all, or if processed, to have the procedure done
properly.” Avent v. Doe, No. 05-CV-1311, 2008 WL 877176, at *8
(N.D.N.Y. Mar. 31, 2008) (citing Torres v. Mazzuca, 246 F. Supp.2d
334, 342 (S.D.N.Y. 2003) (collecting cases)). Thus, even if IGP
Supr. Abrunzo’s investigation of Plaintiff’s grievances was in some
way
inadequate
or
deficient,
that
would
not
give
rise
to
a
constitutional claim. e.g., Green v. Herbert, 677 F. Supp.2d 633,
639 (W.D.N.Y. 2010) (inmate’s allegation that officer who was
assigned to investigate his grievance conducted a biased, unfair
investigation “fails because an inmate ‘has no constitutional right
to have his grievances processed or investigated in any particular
manner’”) (quoting Shell v. Brzezniak, 365 F. Supp.2d 362, 379
(W.D.N.Y. 2005)).
In any event, Plaintiff’s exhibits contradict his assertion
that IGP Supr. Abrunzo did not process Grievance No. SPT-47701-09.
Rather, his submissions indicate that the grievance was processed
and dismissed (Compl., Ex. V). Thus, the Court need not accept his
assertions that IGP Supr. Abrunzo failed to process his grievances.
See Rapoport, 88 F. Supp.2d at 184.
-34-
G.
Deliberate Indifference to Medical Needs
Plaintiff’s seventh and final cause of action contains the
following allegations regarding his medical care at Southport:
(1) Nurse Gorg failed to adequately assess his medical condition
and failed to provide adequate medical care for his skin rash,
resulting in pain and mental anguish from open sores and skin
lesions;
(2)
Nurse
Gorg
harassed
Plaintiff
by
attempting
to
administer a TB vaccination; (3) Nurse Gorg threatened to write a
false misbehavior report against Plaintiff; (4) Nurse Gorg failed
to
notify
vaccination;
Plaintiff
(5)
of
Nurse
the
consequences
Adminr.
Felker
of
refusing
condoned
Nurse
a
TB
Gorg’s
conduct; (6) Nurse Adminr. Felker instructed the Plaintiff not be
placed in quarantine after Plaintiff refused the TB shot; (7) when
Nurse Adminr. Felker began working at Southport, the nurses were
instructed to stop providing treatment for inmates’ skin rashes;
(8) Nurse Adminr. Felker denied Plainitff medication, treatment,
and examination by
a physician; and (9) N.A. Felker denied
Plaintiff medical treatment due to state budget cuts. Compl.,
¶¶ 83-98.
“In order to establish an Eighth Amendment claim arising out
of inadequate medical care, a prisoner must prove ‘deliberate
indifference to [his] serious medical needs.’” Chance v. Armstrong,
143 F.3d 698, 702 (2d Cir. 1998) (quoting Estelle v. Gamble, 429
U.S. 97, 104 (1976)). “This standard incorporates both objective
-35-
and subjective elements. The objective ‘medical need’ element
measures
the
subjective
severity
‘deliberate
of
the
alleged
indifference’
deprivation,
element
ensures
while
the
that the
defendant prison official acted with a sufficiently culpable state
of mind.” Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir. 2003)
(citations omitted).
To satisfy the objective element, a prisoner must show a
serious
illness
or
injury
resulting
in
the
infliction
of
unnecessary pain and suffering. Smith, 316 F.3d at 184 (citing
Estelle, 429 U.S. at 105).
With regard to the subjective element,
“[a]n official acts with the requisite deliberate indifference when
that official ‘knows of and disregards an excessive risk to inmate
health or safety,’” Chance, 143 F.3d at 702 (quoting Farmer v.
Brennan, 511 U.S. 825, 837 (1994)), a state of mind “equivalent to
the familiar standard of ‘recklessness’ as used in criminal law.”
Phelps, 308 F.3d at 186 (citation omitted). The Supreme Court has
cautioned that “the Eighth Amendment is not a vehicle for bringing
medical malpractice claims, nor a substitute for state tort law,
not every lapse in prison medical care will rise to the level of a
constitutional violation.” Smith, 316 F.3d at 184 (citing Estelle,
429 U.S. at 105-06; other citation omitted).
Plaintiff’s complaint fails to set forth sufficient facts to
plead a plausible claim of deliberate indifference to serious
medical needs. As an initial matter, Plaintiff has not established
-36-
that he actually suffered from eczema; the documents submitted by
Defendants indicate that DOCCS’ medical staff determined that a
diagnosis of eczema was not warranted. Even assuming that Plaintiff
did have eczema, it was not sufficiently serious that a failure to
treat it could be expected to lead to substantial and unnecessary
suffering, injury, or death. See Sledge v. Kooi, 564 F.3d 105
(2d Cir. 2009) (alleged eczema, back pain, stomach disorders,
allergies, and asthma did not constitute a “serious medical need”
on which to premise an Eighth Amendment claim of deliberate medical
indifference); Samuels v. Jackson, No. 97 Civ. 2420, 1999 WL 92617,
at * 1–3 (S.D.N.Y. Feb. 22, 1999) (prisoner’s “[p]apules, vesicles,
pustules, burrows, and intense itching resulting in eczema” did not
constitute a sufficiently “serious medical need” for purposes of
Eighth Amendment); Tsakonas v. Cicchi, 308 F. App’x. 628, 632
(3d Cir. 2009) (unpublished opn.) (affirming the dismissal of an
Eighth Amendment claim premised upon a denial of treatment for
“weight loss, eczema of the feet, seborrhea of the scalp, athlete’s
foot, constipation, and swollen knuckles on his right hand” on the
basis that the prisoner had failed to allege a serious medical
condition).
Folded into Plaintiff’s deliberate indifference claim is a
claim that the circumstances surrounding the TB vaccination caused
him to suffer unconstitutional conditions of confinement. Plaintiff
asserts that he was “left . . . in the same housing unit in a
-37-
position to contaminate others” after refusing the TB vaccine.
However, this allegation is belied by his own submissions, which
indicate that he was placed on “TB Hold” based on his denial of the
TB vaccination. Compl., Exs. T & V. In any event, the conditions of
confinement imposed by DOCCS’ TB hold policy “do not result in a
serious deprivation of basic human needs, and therefore TB hold
meets Eighth Amendment standards.” Giles v. Coughlin, No. 95 Civ.
3033, 1997 WL 433437, at *9 (S.D.N.Y.
Aug. 1, 1997) (citations
omitted).
Moreover, Plaintiff’s allegation that he was “not instruct[ed]
to be placed in quarantine,” Compl., ¶ 90, is not only implausible,
it is too vague and conclusory to state a claim for relief under
any Constitutional provision. Assuming Plaintiff actually seeks to
challenge his confinement in keeplock pursuant to TB hold, he does
not allege any facts other than the loss of movement afforded him
while in general population and loss of privileges. See Compl.,
¶ 88. Because Plaintiff does not allege any condition to which he
was subjected that resulted in the deprivation of a basic human
need, he cannot maintain a conditions of confinement claim on these
facts. See Delisser v. Goord, No. 02CV0073,
2003 WL 133271, at *6
(N.D.N.Y. Jan. 15, 2003) (rejecting inmate’s claim being placed in
medical keeplock for his refusal to take the TB test and TB
medication was cruel and unusual punishment).
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Plaintiff’s
complaint
concerning
Nurse
Gorg’s
advice
to
purchase his own cosmetic supplies from commissary for his alleged
eczema,
see
Compl.,
Ex.
T,
amounts
to
nothing
more
than
a
disagreement over treatment, which does not present a cognizable
medical indifference claim. See Chance, 143 F.3d at 703 (“It is
well-established that mere disagreement over the proper treatment
does not create a constitutional claim.”).
Finally, with respect to Plaintiff’s claim that Nurse Adminr.
Felker created a policy of denying inmates treatment for skin
rashes with the exception of over-the-counter creams, see Compl.,
¶ 93, his attached exhibits again contradict the assertions in the
complaint. See Compl., Ex. T (Sick Call Response dated 12/9/08,
stating, “You need to buy your own cosmetic supplies at commissary.
You must have eczema, xerosis, or ichthyosis in order to receive
medical
[sic]
ordered
emollients.”).
As
noted
earlier,
such
allegations cannot survive a motion to dismiss where they are
contradicted by Plaintiffs’ own exhibits. Rapoport, 88 F. Supp.2d
at 182 (citing, inter alia, Feick v. Fleener, 653 F.2d 69, 75
(2d Cir. 1981) (citations omitted).
VI.
Conclusion
For the reasons discussed above, Plaintiff’s Motion to Compel
Discovery (Dkt # 51) is denied with prejudice;
for
Summary
Judgment
(Dkt
#26)
is
denied
Plaintiff’s Motion
with
prejudice;
Defendants’ Motion to Dismiss/Cross-Motion for Summary Judgment
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(Dkt #47), is granted. The Complaint is dismissed in its entirety
with prejudice.
The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a),
that any appeal from this Order would not be taken in good faith
and leave to appeal to the Court of Appeals as a poor person is
denied. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
Further requests to proceed on appeal in forma pauperis should be
directed on motion to the United States Court of Appeals for the
Second Circuit in accordance with Rule 24 of the Federal Rules of
Appellate Procedure.
The Clerk of the Court is requested to close this case.
SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:
March 31, 2014
Rochester, New York
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