Hamilton v. Erhardt et al
Filing
11
DECISION AND ORDER granting in part and denying in part 4 Motion to Dismiss. Defendants motion [#4] to dismiss for failure to state a claim is granted in part and denied in part. Plaintiffs claims against Erhardt and Cartwright, arising on October 10, 2008 and October 12, 2008, respectively, are dismissed. Plaintiffs claim against Murray is also dismissed. Plaintiffs claims against Erhardt and Conway, arising on October 15, 2008, and his claim against Fischer, may go forward. The Clerk of the Court is directed to terminate Cartwright and Murray as parties to this action.Dated:Rochester, New YorkSigned by Hon. Charles J. Siragusa on 8/9/11. CLERK OF THE COURT TO FOLLOW UP. (KAP)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
__________________________________________
Karvia A. Hamilton, 04-A-5214,
Plaintiff,
DECISION AND ORDER
-vs10-CV-6234 CJS
M. Erhardt, J. Cartwright, James Conway,
W. Murray, and Brian Fischer,
Defendants.
__________________________________________
INTRODUCTION
Karvia A. Hamilton (“Plaintiff”), a prison inmate in the custody of the New York
State Department of Correctional Services (“DOCS”), brought this pro se civil rights
action pursuant to 42 U.S.C. § 1983 against Sergeant M. Erhardt (“Erhardt”),
Corrections Officer J. Cartwright (“Cartwright”), Superintendent James Conway
(“Conway”), Lieutenant W. Murray (“Murray”), and DOCS Commissioner Brian Fischer
(“Fischer”), for alleged violations of his rights under the First, Eighth, and Fourteenth
Amendments. (Docket No [# 1]). Now before the Court is Defendant‟s motion to
dismiss. (Docket No [# 4]). For the reasons that follow, the motion to dismiss is granted
in part and denied in part.
BACKGROUND
Unless otherwise noted the following facts are taken from the complaint and are
assumed to be true for purposes of this motion. At all times relevant Plaintiff was
housed at Attica Correctional Facility (“Attica”). Plaintiff is a member of the Rastafarian
religion, and his DOCS records indicate that fact. (Docket No [# 8] pg 6). One
established tenet of the Rastafarian religion is the belief against trimming beards.
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Directive 4914 of the New York Official Compilation of Codes, Rules and
Regulations, generally prohibits inmates from growing their beards longer than oneinch. However, the Directive states that an inmate may grow a beard longer than one
inch if the inmate is granted an exemption based upon his documented membership in
a religion which has a tenet against the trimming of beards. Inmates who are granted
exemptions are issued beard permits by the Deputy Commissioner for Correctional
Facilities. Specifically, Directive 4914 states, in pertinent part:
Beards and Mustaches: An inmate may grow a beard and/or
mustache, but beard/mustache hair may not exceed one (1)
inch in length unless
a. the inmate has a court order restraining the Department
from enforcement; or
b. the inmate has requested and received an exemption
based upon his or her documented membership in a religion
which has an established tenet against the trimming of
beards including but not limited to inmates who are
Rastafarian, Orthodox Jew or Muslim. All inmate requests
for such exemption shall be referred to and reviewed by
Counsel‟s Office after consultation with the facility chaplain.
After such review, Counsel‟s Office will make a
recommendation to the Deputy Commissioner for
Correctional Facilities. If the request is approved by the
Deputy Commissioner for Correctional Facilities, a permit will
be issued to the inmate.
Further, pending Counsel‟s Office determination of requests
for exemption from the one (1) inch rule, inmates shall not be
required to cut or time their beards, or [be] disciplined for
refusing the order to shave or subject to repeat orders to
shave.
An inmate who refuses to comply with this rule will be given
14 days from the date of the written order to shave in which
to request an exemption. If the inmate fails to submit a
request for an exemption within 14 days, he may be
disciplined for refusal to obey such order.
2
Copies of the written order, an inmate‟s request for
exemption and the exemption will be filed in the inmate‟s
legal file.
(DOCS Inmate Grooming Standards, Docket No [#8], 11). On January 19, 2007 Plaintiff
requested an exemption to the general beard rule, but never received approval or a
permit. (Docket No [#8], pg 8). Plaintiff apparently also made another such request, the
date of which is unclear.
On October 10, 2008 Erhardt told Plaintiff that if Plaintiff did not cut his beard to
comply with Directive 4914, he would not be allowed in Attica‟s recreation yard. (Docket
No [#1], pg 6). Plaintiff told Erhardt that growing his hair and beard was part of his
religious beliefs, but Erhardt said that he did not care. Id. Cartwright was present at the
time and laughed at Erhardt‟s comments. Id.1 Erhardt then ordered Plaintiff back to his
cell without allowing him any time in the recreation yard. Id.2
On October 12, 2008 Cartwright denied Plaintiff access to the recreation yard,
after Plaintiff failed to produce a beard exemption permit. (Docket No [#1], pg 6).
Cartwright asked Plaintiff if he had the required permit, and Plaintiff responded by
saying that he did not need a permit because it was part of his Rastafarian religion to
refrain from cutting his beard. Id. At that point Cartwright ordered Plaintiff back to his
cell. Id.
On October 15, 2008 Erhardt told Plaintiff that if he did not cut his beard he would be
written up for disobeying a direct order and for growing his beard over one inch. (Docket
1
Although it does not appear to be relevant to the instant case, Plaintiff indicates that, previously, on
September 25, 2007, Cartwright searched Plaintiff‟s cell and confiscated contraband as well as religious
articles. (Docket No [#1], pg 10). Plaintiff also claimed that during the search Cartwright threatened and
choked him. Id. Plaintiff filed an inmate grievance, and on October 25, 2007 the grievance was denied.
(Docket No [#1], pg 13). In this action Plaintiff does not allege that Cartwright‟s actions are retaliatory or
otherwise connected to this earlier incident.
2
Plaintiff filed a grievance with regard to this incident and it was denied. Plaintiff appealed the grievance
denial and that too was denied. (Docket No [#1], pg 17).
3
No [#1], pg 7). Additionally, Erhardt said that if Plaintiff did not cut his beard he could
lose a few teeth or even his life. Id. Plaintiff responded by showing Erhardt paperwork
indicating that he had twice requested a beard exemption pursuant to Directive 4914.3
Plaintiff indicated that he had never received a response to his requests. Erhard
nevertheless again ordered Plaintiff to shave his beard.
Shortly thereafter, Conway walked by Plaintiff‟s cell, and Plaintiff called out that he
wanted to speak to Conway about having to shave his beard. Erhardt told Conway not
to listen to Plaintiff, since Plaintiff just wanted to avoid shaving his beard, and Conway
went away without speaking to Plaintiff.
Plaintiff proceeded to cut his beard, purportedly because he was scared of the
consequences. Id. Nonetheless, Erhardt issued a misbehavior report to Plaintiff,
charging him with disobeying a direct order4, not keeping his beard shorter than one
inch, and making false statements in regard to the whereabouts of his exemption or
permit papers. (Docket No [#1], pg 8).
On October 17, 2008, Murray conducted a disciplinary hearing on the misbehavior
report issued by Erhardt, and found Plaintiff guilty. Murray sentenced Plaintiff to fifteen
days in “keeplock,”5 which “is a form of administrative segregation in which the inmate is
confined to his cell, deprived of participation in normal prison routine, and denied
contact with other inmates.” Gittens v. Lefevre, 891 F.2d 38, 39 (2d Cir. 1989). Plaintiff
maintains that Murray was biased, because at the disciplinary hearing, Murray told him,
3
Plaintiff does not allege that he previously told Erhardt or Cartwright that he had applied for a beard
exemption permit. Instead, according to Plaintiff, he told Erhardt and Cartwright that he did not need a
beard permit.
4
There is no indication that Plaintiff was ever given a written order to shave.
5
Docket No [#1], pg 8 and Document No [#6], pg 4.
4
“I know you are exercising your religion, but we 6 have to stick together as officers.”
(Docket No [#1], pg 29).
On April 28, 2010 Plaintiff commenced this action. (Docket No [# 1]). Plaintiff
asserts five claims: 1) a claim against Erhardt and Cartwright, alleging that they violated
his First and Eighth Amendment rights on October 10, 2008; 2) a claim against
Cartwright, alleging that he violated Plaintiff‟s Eighth Amendment rights on October 12,
2008; 3) a claim against Erhardt and Conway, alleging that they violated Plaintiff‟s
Eighth and Fourteenth Amendment rights on October 15, 2008; 4) a claim against
Murray, alleging that he violated Plaintiff‟s Eighth Amendment rights on October 17,
2008; and 5) a claim against Fischer, alleging that he violated Plaintiff‟s Eighth
Amendment rights, by failing to properly train DOCS staff concerning Directive 4914.
Defendants filed the subject motion to dismiss, in which they raise three points:
First, they maintain that Plaintiff‟s claims must be dismissed, because Directive 4914 is
constitutional, and because Plaintiff violated that directive; second, they contend that all
claims involving threats and verbal harassment must be dismissed, because they fail to
state a constitutional claim; and third, they allege that the claims involving Plaintiff‟s
disciplinary and sentence fail to state a constitutional claim.
ANALYSIS
Defendant‟s motion to dismiss is brought pursuant to Fed.R.Civ.P. 12(b)(6), for
failure to state a claim for which relief can be granted. “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to 'state a claim to
relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct.1937, 1949 (2009) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Determining whether a
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Presumably meaning he and Erhardt.
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complaint states a plausible claim for relief will . . . . be a context-specific task that
requires the reviewing court to draw on its judicial experience and common sense.”
Ashcroft v. Iqbal, 129 S.Ct. at 1950. The Court does “not require heightened fact
pleading of specifics, but only enough facts to state a claim to relief that is plausible on
its face.” Bell Atl. Corp. v. Twombly, 550 U.S. at 570. "We construe plaintiffs' complaint
liberally, accepting all factual allegations in the complaint as true, and drawing all
reasonable inferences in plaintiffs' favor." Holmes v. Grubman, 568 F.3d 329, 335 (2d
Cir. 2009) (citation and internal quotation marks omitted). “Even after Twombly, though,
we remain obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d
66, 72 (2d Cir. 2009) (citations omitted).
Defendants first maintain that the Complaint must be dismissed, because
Directive 4914 is constitutional. However, Plaintiff is not challenging the constitutionality
of Directive 4914. Accordingly, to the extent that Defendants‟ motion is based on the
constitutionality of Directive 4914, it is denied. Alternatively, Defendants appear to
argue that Plaintiff was clearly in violation of Directive 4914, and that Defendants‟
actions were therefore appropriate as a matter of law. However, the Court does not
agree. For example, Directive 4914 states in pertinent part:
All inmate requests for such exemption shall be referred to
and reviewed by Counsel‟s Office after consultation with the
facility chaplain. After such review, Counsel‟s Office will
make a recommendation to the Deputy Commissioner for
Correctional Facilities. If the request is approved by the
Deputy Commissioner for Correctional Facilities, a permit will
be issued to the inmate.
Further, pending Counsel‟s Office determination of requests
for exemption from the one (1) inch rule, inmates shall not be
required to cut or time their beards, or [be] disciplined for
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refusing the order to shave or subject to repeat orders to
shave.
The Court reads such language to indicate that once an inmate has requested a beard
exemption, he shall not be subject to discipline until after Counsel‟s Office issues a
decision. In this case, Erhardt allegedly caused Plaintiff to shave his beard even though
he was aware that Plaintiff had twice requested an exemption and had never received a
response from Counsel‟s Office.
Defendants next contend that all claims based on verbal threats and harassment
must be dismissed. Section 1983 claims must allege: "(1) that the challenged conduct
was attributable at least in part to a person acting under color of state law, and (2) that
such conduct deprived the plaintiff of a right, privilege, or immunity secured by the
Constitution or laws of the United States." Dwares v. City of N.Y., 985 F.2d 94, 97 (2d
Cir. 1993). While Defendants are clearly persons acting under color of state law,
Plaintiff‟s allegations on October 10, 2008 and October 12, 2008 of harassment, threats,
and verbal mocking do not rise to the Constitutional level of abuse that is required to
successfully pursue a § 1983 case. “[V]erbal harassment, standing alone, does not
amount to a constitutional deprivation,” even where such verbal harassment pertains to
the plaintiff‟s race or religion. See, Cole v. Fischer, No. 09-2897-pr, 379 Fed.Appx. 40,
43, 2010 WL 2130974 at *2 (2d Cir. May 27, 2010) (finding that allegations of verbal
harassment and simultaneous physical abuse were sufficient to state a § 1983 claim). In
the case at hand, the incidents that occurred on October 10, 2008 and October 12,
2008 involved only alleged verbal harassment by Erhardt and Cartwright, in which they
told him to shave his beard, and in which Cartwright laughed at Plaintiff. Consequently,
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the claims against Erhardt and Cartwright involving incidents on October 10, 2008 and
October 12, 2008 are dismissed for failure to state a claim.
Defendants next maintain that the claim against Murray must be dismissed, since
Plaintiff did not have a liberty interest in remaining free from confinement in keeplock for
fifteen days. In that regard, Plaintiff indicates that Murray improperly found him guilty of
the disciplinary charges issued by Erhardt, and sentenced him to fifteen days in
keeplock, after stating that the corrections staff needed to “stick together.” Although
Plaintiff characterizes this claim as arising under the Eighth Amendment, the Court
construes it as raising a procedural due process claim under the Fourteenth
Amendment.
In that regard, it is “not require[d] that restrictive confinement within a prison be
preceded by procedural due process protections unless the confinement subject[s] the
prisoner to „atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life.‟” Colon v. Howard, 215 F.3d 227, 230 (2d Cir. 2000) (citation
omitted); see also, Hanrahan v. Doling, 331 F.3d 93, 97 (2d Cir. 2003) (Holding that
“inmates retain due process rights in prison disciplinary proceedings . . . when
disciplinary punishment „imposes atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.‟” (quoting Sandin v. Conner, 515 U.S.
472, 115 S.Ct. 2293 (1995)). There is no bright line rule to determine what would or
would not subject a prisoner to atypical and significant hardship, although, in Sandin v.
Conner, the Supreme Court held that an inmate‟s 30-day sentence in punitive
segregation did not impose such a hardship. Sandin v. Conner, 115 S.Ct. at 2301.
Moreover, cases in the Second Circuit indicate that a fifteen-day keeplock sentence
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would not impose such a hardship. See, Silva v. Sanford, No. 91CIV.1776(AJP)(KMW),
1998 WL 205326 at *17 (S.D.N.Y. Apr. 24, 1998) (“Absent extraordinary circumstances,
the cases unanimously hold that punishment of less than 60 days in SHU or keeplock
does not constitute an atypical and significant hardship under Sandin.”) (citations
omitted); see also, Fullwood v. Vosper, No. 9:99CV1586, 2007 WL 119456 at *5
(N.D.N.Y. Jan. 9, 2007) (“In the Second Circuit, decisions unanimously have held that
keeplock of thirty days or less in New York prisons is not an „atypical or significant
hardship‟ under Sandin.”) (citation omitted). In the case at hand, Plaintiff‟s Complaint
does not allege that he experienced unusually harsh conditions while in keeplock,
therefore his fifteen-day keeplock sentence did not subject him to atypical and
significant hardship. Accordingly, Plaintiff‟s procedural due process claim against
Murray is dismissed.
CONCLUSION
Defendant‟s motion [#4] to dismiss for failure to state a claim is granted in part
and denied in part. Plaintiff‟s claims against Erhardt and Cartwright, arising on October
10, 2008 and October 12, 2008, respectively, are dismissed. Plaintiff‟s claim against
Murray is also dismissed. Plaintiff‟s claims against Erhardt and Conway, arising on
October 15, 2008, and his claim against Fischer, may go forward. The Clerk of the
Court is directed to terminate Cartwright and Murray as parties to this action.
Dated: Rochester, New York
August 9, 2011
ENTER:
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
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