Colantuono v. Hockeborn et al

Filing 25

ORDER that Defendants' motion to dismiss 13 is granted, and the complaint is dismissed. Plaintiff's motion for appointment of counsel 20 is denied as moot.***CLERK TO FOLLOW UP. Signed by Hon. David G. Larimer on 8/11/11. (EMA) (Main Document 25 replaced on 8/11/2011) (EMA).

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________
JAMES COLANTUONO,
Plaintiff,
DECISION AND ORDER
10-CV-6446L
v.
S. HOCKEBORN, CLERK II, et al.,

Defendants.
________________________________________________
Plaintiff, James Colantuono, appearing pro se, commenced this action pursuant to 42 U.S.C.
§ 1983. Plaintiff, an inmate in the custody of New York State Department of Correctional Services
(“DOCS”), alleges that his constitutional rights were violated in 2009 while plaintiff was confined
first at Elmira Correctional Facility and then at Sullivan Correctional Facility. In general, all of
plaintiff’s claims stem from a disciplinary hearing held during May 2009 and plaintiff’s subsequent
confinement in the Special Housing Unit (“SHU”) as a result of that hearing.
Plaintiff has sued a number of defendants, who at all relevant times were employees of
DOCS.1 Defendants have moved to dismiss the claims against them pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure. Plaintiff has not responded to defendants’ motion, but he has
filed a motion for appointment of counsel. For the reasons that follow, defendants’ motion is
granted, plaintiffs’ motion is denied, and the complaint is dismissed.

1

Plaintiff has also sued one “John Doe” defendant, an unidentified state police
investigator.

BACKGROUND

On May 14, 2009, defendant Hockeborn, a female DOCS employee who is identified in
the complaint as a “Clerk II” at Elmira, filed an Inmate Misbehavior Report against plaintiff,
alleging that he had “lunged toward [her], bumped into [her], then reached under [her] coat and
grabbed and squeezed [her] in her crotch.” Dkt. #14 at 5. Both then and now, plaintiff has
denied doing anything improper, contending that any contact between him and Hockeborn was
accidental and unintentional, and that the incident alleged by Hockeborn “could not have
happened because plaintiff is legally blind.” Amended Complaint (Dkt. #4) ¶ 30.
Shortly after this incident or encounter between plaintiff and Hockeborn, plaintiff was
placed on keeplock status. On May 15, 2009, plaintiff was served with a copy of Hockeborn’s
report, and a Tier III disciplinary hearing was begun on May 22, and concluded on May 29, 2009.
Id. ¶¶ 17, 22.
Plaintiff requested, and was assigned, someone to assist him in connection with the
disciplinary proceedings. Plaintiff met with his assistant, variously identified in the complaint as
“T. Moots” and “T. Mootz,” on May 20. Id. ¶ 18.
Defendant Captain Noeth presided over the hearing. Plaintiff alleges that he was
provided with no assistant during the hearing, and that at no time was he given a large-print copy
of the misbehavior report or other hearing papers. Id. ¶ 23. Noeth also allegedly refused to call a
certain witness, Nurse Porter, that plaintiff had requested. At the conclusion of the hearing,
plaintiff was found guilty and sentenced to two years in the Special Housing Unit (“SHU”).
Following the hearing, Plaintiff remained at Elmira Correctional Facility until June 16,
2009, when he was transferred to Sullivan Correctional Facility. Plaintiff alleges that while he
was at Elmira, he was not provided with any assistance for his day-to-day activities as a blind
person, and that as a result, plaintiff fell and hurt himself. Id. ¶ 37. Similarly, plaintiff alleges
that after he arrived at Sullivan, he was placed in an ordinary cell, with no accommodation for his
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disability, and that this “[r]esult[ed] in plaintiff falling, banging himself against objects.” Id. ¶
39.
Plaintiff’s disciplinary hearing disposition was reversed on September 24, 2009.2
Plaintiff alleges that his disciplinary record should have been expunged after the reversal, but that
it was not. Plaintiff further alleges that he has been subjected to unfavorable treatment by other
inmates and by administrative personnel because his record was not expunged.
The amended complaint does not set out separate causes of action, but alleges generally
that the constitutional bases for plaintiff’s claims are “due process, equal protection, denial of
medical treatment, and malicious prosecution, ADA equal protection [sic].” Id. at 10.

DISCUSSION
I. Motions to Dismiss: General Standards
As stated, plaintiff has not responded to the motions to dismiss. His failure to oppose the
motions does not, however, relieve the Court of its obligation to consider the merits of plaintiff’s
claims. “If a complaint is sufficient to state a claim on which relief can be granted, the plaintiff’s
failure to respond to a Rule 12(b)(6) motion does not warrant dismissal.” McCall v. Pataki, 232
F.3d 321, 322 (2d Cir. 2000). Plaintiff’s failure to respond to the motions notwithstanding, then,
the Court must determine whether, “accept[ing] the allegations contained in the complaint as
true, and draw[ing] all reasonable inferences in favor of the non-movant,” plaintiff has stated a
facially valid claim. Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994).
Nonetheless, “a plaintiff’s obligation ... requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do. Factual allegations must be

2

The complaint alleges that the disposition was reversed by Norman Bezio, who is not
named as a defendant in this action. Bezio has been identified in other cases as the Director of
Special Housing and Inmate Disciplinary Programs for DOCS. See, e.g., Delgado v. Bezio, No.
09 Civ. 6899, 2011 WL 1842294, at *1 (S.D.N.Y. May 9, 2011); Holmes v. Fischer, 764
F.Supp.2d 523, 530 (W.D.N.Y. 2011).
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enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555; accord Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009). Thus,
where a plaintiff “ha[s] not nudged [his] claims across the line from conceivable to plausible,
[his] complaint must be dismissed.” Id. at 570. A “plausible” entitlement to relief exists when
the allegations in the complaint move the plaintiff’s claims across the line separating the
“conclusory” from the “factual,” and the “factually neutral” from the “factually suggestive.” Id.
at 557 n.5.
“[T]his plausibility standard governs claims brought even by pro se litigants.” Robles v.
Bleau, No. 9:07-CV-0464, 2008 WL 4693153, at *5 (N.D.N.Y. Oct. 22, 2008) (citing Jacobs v.
Mostow, 271 Fed. Appx. 85, 87 (2d Cir. 2008), and Boykin v. KeyCorp, 521 F.3d 202, 215-16
(2d Cir. 2008)). At the same time, however, the Court is mindful that even after Twombly, a
“document filed pro se is to be liberally construed and a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.”
Boykin, 521 F.3d at 214. Nevertheless, all pleadings, pro se or otherwise, must contain enough
factual allegations to “give the defendant fair notice of what the ... claim is and the grounds upon
which it rests.” Id. (quoting Erickson v. Pardus, 551 U.S. 89 (2007)) (additional internal
quotation marks omitted).

II. Application to this Case
A. Due Process Claims
Plaintiff alleges that his rights were violated in several respects at the disciplinary
hearing. He alleges that the hearing officer denied plaintiff’s request to call a particular witness,
without giving a reason for the denial, and that Noeth did not provide plaintiff with large-print
copies of certain documents.
Although a New York inmate has a due process right to call witnesses, see 7 N.Y.C.R.R.
§ 254.5(b), that right is not absolute. See Ponte v. Real, 471 U.S. 491, 495 (1985); Wolff v.
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McDonnell, 418 U.S. 539, 566 (1974). “Prison officials must have the necessary discretion to
keep the hearing within reasonable limits and to refuse to call witnesses that may create a risk of
reprisal or undermine authority ... .” Ponte, 471 U.S. at 496 (quoting Wolff, 418 U.S. at 566). A
hearing officer may also refuse to call a witness “on the basis of irrelevance or lack of necessity.”
Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 (2d Cir. 1991); see also Scott v. Kelly, 962 F.2d
145, 146-47 (2d Cir. 1992) (“It is well settled that an official may refuse to call witnesses as long
as the refusal is justifiable”).
Prison hearing officers, then, have the discretion to keep hearings within reasonable
limits, and included within that discretion is the authority to refuse to call witnesses whose
testimony the prison official reasonably regards as duplicative or non-probative. Russell v.
Selsky, 35 F.3d 55, 55-59 (2d Cir. 1994). At the same time, however, “prison officials may be
required to explain, in a limited manner, the reason why witnesses were not allowed to testify ...
.” Ponte, 471 U.S. at 497. They need not give a detailed explanation, however, and “may do so
... by making the explanation a part of the ‘administrative record’ in the disciplinary proceeding
... .” Id.
In addition, to establish a procedural due process claim in connection with a prison
disciplinary hearing, an inmate must show that he was prejudiced by the alleged procedural
errors, in the sense that the errors affected the outcome of the hearing. See Powell v. Coughlin,
953 F.2d 744, 750 (2d Cir. 1991). (stating that “it is entirely inappropriate to overturn the
outcome of a prison disciplinary proceeding because of a procedural error without making the
normal appellate assessment as to whether the error was harmless or prejudicial”); Clark v.
Dannheim, 590 F. Supp. 2d 426, 429-31 (W.D.N.Y. 2008) (“[t]o establish a procedural due
process claim in connection with a prison disciplinary hearing, an inmate must show that he was
prejudiced by the alleged procedural errors, in the sense that the errors affected the outcome of
the hearing”).

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The records of plaintiff’s disciplinary proceedings indicates that all the witnesses that had
been requested by plaintiff were called, and testified in plaintiff’s presence. See Dkt. #14 Exs. B,
C.3 Plaintiff states in his motion that he sought to have four witnesses called to testify: Dr.
Alves, RN Porter, CO Makara, and S. Hill. The record indicates that plaintiff requested Dr.
Alves, RN Peters, CO Makara, and S. Hill. Id. There is no indication, however, that any witness
requested by plaintiff was denied.
More importantly, however, plaintiff has not alleged that he was in any way prejudiced by
the alleged denial of a witness. Even assuming that “RN Porter” and “RN Peters” are different
people, and that Noeth denied plaintiff’s request to have Porter testify, that alone would not
entitle plaintiff to relief. Plaintiff must show that the outcome of the hearing likely would have
been different had Porter been called. See Clark, 590 F. Supp. 2d at 429 (dismissing state
prisoner’s due process claim based on the hearing officer’s denial of plaintiff’s requests to review
certain medical records, and to call DOCS sergeant as a witness, where plaintiff failed to
demonstrate that he was prejudiced as a result); Proctor v. Kelley, No. 9:05-CV-0692, 2008 WL
5243925, at *22 (N.D.N.Y Dec. 16, 2008) (“The Second Circuit has specifically held that prison
disciplinary hearings are subject to a harmless error analysis”) (citing Powell, 953 F.2d at 750);
Marino v. Humphrey, No. 05 CIV. 6571, 2006 WL 2786182, at *5 (S.D.N.Y. Sept. 27, 2006)
(stating that “[h]armless error analysis applies to prison disciplinary hearings” and that “[c]ourts
may find harmless error where a prisoner fails to show that the error negatively affected the
outcome of the proceeding”).
Here, plaintiff has not alleged what Porter would have testified about, much less what the
substance of Porter’s testimony would have been, or how it would have helped plaintiff. Again,

3

The hearing record may be considered on a Rule 12(b)(6) motion to dismiss, without
converting it to a summary judgment motion under Rule 56. See Bennett v. Tucker, No. 95 Civ.
8029, 1996 WL 288202, at *1 n.3 (S.D.N.Y. May 30, 1996) (citing Cortec Indus., Inc. v. Sum
Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991), and Westwood v. Cohen, 838 F.Supp. 126, 130 n.8
(S.D.N.Y.1993).
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plaintiff must allege facts making his claims plausible, and this bare allegation that one witness
was denied fails to meet that standard.
Likewise, plaintiff has not alleged that he was prejudiced by the alleged failure to provide
him with large-print copies of the misbehavior report or his disciplinary record. He has not even
alleged that he specifically requested such copies, but even if he did, the facts alleged here do not
indicate that plaintiff was unaware of the contents of the documents, nor has he alleged what he
would have done differently had he been given large-print copies.
To survive a motion to dismiss, a plaintiff must plead sufficient facts to “state a claim to
relief that is plausible on its face.” Twombley, 550 U.S. at 547. Without any factual allegation
indicating that plaintiff was prejudiced by the Noeth’s alleged denial of one witness and his
failure to provide plaintiff with large-print copies of the misbehavior report and plaintiff’s
disciplinary record, plaintiff’s claim “stops short of the line between possibility and plausibility
of ‘entitlement to relief.’” Id. at 557. Because plaintiff has failed to allege facts showing that he
was prejudiced by these alleged constitutional violations, then, his procedural due process claims
are dismissed.

B. Malicious Prosecution
Plaintiff alleges that the misbehavior report filed by defendant Hockeborn was false, and
that as a result of that false report, he was subjected to threats by DOCS officers. Plaintiff further
alleges that he has suffered harassment because his disciplinary record still reflects the incident,
even though the hearing disposition was administratively reversed.
These claims must be dismissed. “The Second Circuit has held that the issuance of false
misbehavior reports against an inmate by corrections officers is insufficient on its own to
establish a denial of due process ... .” Faison v. Janicki, No. 03-CV-6475, 2007 WL 529310, at
*4 (W.D.N.Y. Feb. 14, 2007) (citing Freeman v. Rideout, 808 F.2d 949, 952 (2d Cir.1986)). See
also Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997). Plaintiff has not alleged any
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impermissible motive for the report, such as retaliation. See Freeman, 808 F.2d at 951-52. In
addition, where a prisoner’s period of incarceration is not impacted by disciplinary proceedings,
the inmate has no claim for malicious prosecution under section 1983. Dillhunt v. Theriault, No.
9:07-CV-0412, 2009 WL 4985477, at *16 (N.D.N.Y. December 15, 2009) (citing Parker v. City
of New York, No. 05 Civ. 1803, 2008 WL 110904, at * 9 (S.D.N.Y. Jan. 7, 2008)).
Plaintiff has also failed to allege any facts showing that he has suffered any harm because
of the inclusion of this incident in his disciplinary record. In any event, due process does not
require that prison records containing determinations of misconduct be expunged whenever those
determinations be overturned. Wolff, 418 U.S. at 573. As for the alleged threats, mere “threats
alone do not deprive a plaintiff of any constitutional right.” Koehl v. Bernstein, No. 10-CV3808, 2011 WL 2436817, at *18 (S.D.N.Y. June 17, 2011).

C. Eighth Amendment Claim
Following the disciplinary hearing, plaintiff alleges that he was sentenced to serve two
years in SHU. Plaintiff alleges that during his time in SHU, he was not given adequate
accommodations for his blindness, causing him to bump into objects and to fall down. He
alleges that one Dr. Alves more than once recommended that plaintiff be transferred to a facility
where he could be provided with assistance to accommodate his disability, but that this was
never done.
To show that prison medical treatment was so inadequate as to amount to “cruel or
unusual punishment” prohibited by the Eighth Amendment, plaintiff must show that defendant’s
actions or omissions amounted to “deliberate indifference to a serious medical need.” Estelle v.
Gamble, 429 U.S. 97, 106 (1976). A medical need is “serious” for constitutional purposes if it
presents “‘a condition of urgency’ that may result in ‘degeneration’ or ‘extreme pain.’” Chance
v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998) (quoting Hathaway v. Coughlin, 37 F.3d 63, 66
(2d Cir.1994). See also Harrison v. Barkley, 219 F.3d 132, 136-137 (2d Cir. 2000) (“A serious
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medical condition exists where ‘the failure to treat a prisoner’s condition could result in further
significant injury or the unnecessary and wanton infliction of pain’”) (quoting Chance, 143 F.3d
at 702). Among the relevant factors for determining whether a serious medical need exists are
“[t]he existence of an injury that a reasonable doctor or patient would find important and worthy
of comment or treatment; the presence of a medical condition that significantly affects an
individual’s daily activities; or the existence of chronic and substantial pain.” Chance, 143 F.3d
at 702 (internal quotation marks omitted).
As to the “deliberate indifference” component, the Supreme Court explained in Wilson v.
Seiter, 501 U.S. 294 (1991), that this standard includes both an objective and a subjective
component. With respect to the objective aspect, the court must ask whether there has been a
sufficiently serious deprivation of the prisoner’s constitutional rights. With respect to the
subjective element, the court must consider whether the deprivation was brought about by
defendants in wanton disregard of those rights. Id. To establish deliberate indifference,
therefore, plaintiff must prove that the defendants had a culpable state of mind and intended
wantonly to inflict pain. See id. at 299; DesRosiers v. Moran, 949 F.2d 15,19 (1st Cir. 1991);
Ross v. Kelly, 784 F.Supp. 35, 44 (W.D.N.Y.), aff’d, 970 F.2d 896 (2d Cir. 1992).
The Court in Estelle also cautioned that mere negligence is not actionable. Rather, the
plaintiff must allege conduct that is “repugnant to the conscience of mankind,” id. at 102, or
“incompatible with the evolving standards of decency that mark the progress of a maturing
society,” id. at 105-06.
Plaintiff has failed to plead facts sufficient to meet this standard. Plaintiff alleges that
between the May 29, 2009 disciplinary hearing and the administrative reversal on September 24,
2009, he suffered physical pain from colliding with objects, and mental anxiety over his
situation. He has not, however, alleged any facts indicating that any defendant involved with
plaintiff’s care during the relevant time period acted with a subjective desire to cause plaintiff
pain or injury. Plaintiff has not alleged that defendants knew of his plight, or that he requested
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any particular accommodation. At most, the facts alleged by plaintiff might show that defendants
were negligent in not providing him with more suitable accommodations, but that alone will not
give rise to an Eighth Amendment claim.

D. Americans with Disabilities Act Claim
Based on essentially the same facts as those alleged in support of his Eighth Amendment
claim, plaintiff also asserts a claim under the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12201 et seq. In addition to his allegations about falling down and bumping into things,
plaintiff also alleges that he was not given assistance such as “sighted guides, and daily living
skill aids” to assist him with his day-to-day activities.4 Plaintiff seeks compensatory and punitive
damages for these alleged violations, and has not requested any injunctive or other equitable
relief.
To the extent that plaintiff is suing defendants in their individual capacities, it is well
established that Title II of the ADA does not authorize such suits. See Browdy v. Karpe, 131
Fed. Appx. 751, 754 (2d Cir. 2005); Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d
98, 107 (2d Cir. 2001). Such claims must therefore be dismissed.
The Eleventh Amendment bars actions against a state absent a waiver of its immunity.
See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). This immunity
extends to state officials sued in their official capacities where the state is the real party in
interest. See Farid v. Smith, 850 F.2d 917, 921 (2d Cir. 1988). Suits for monetary damages
against state officials in their official capacity, are therefore barred by the Eleventh Amendment.

4

Plaintiff also alleges that the lack of such assistance rendered his disciplinary hearing
unfair. Those allegations have already been addressed in connection with plaintiff’s due process
claim.
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See id. As plaintiff seeks no injunctive relief; his ADA claims must be dismissed in their
entirety.5

E. Equal Protection
Plaintiff alleges, in conclusory fashion, that his treatment in Sullivan Correctional facility
amounts to a violation of his constitutional right to equal protection. To plead an equal
protection claim, a prisoner must demonstrate that (1) he is similarly situated to other prisoners
who received more favorable treatment; and (2) the difference in treatment was motivated by
plaintiff’s on race, religion, national origin, or some other constitutionally protected
characteristic. See Walter v. Fischer, 381 Fed.Appx. 991, 992-93 (2d Cir. 2010). Plaintiff has
failed to plead any facts tending to show that he was treated differently than other similarly
situated inmates or that such disparate treatment was the result of any constitutionally
impermissible motive. Plaintiff’s equal protection claim is therefore dismissed. See Ferguson v.
City of Rochester School Dist., 485 F.Supp.2d 256, 259 (W.D.N.Y. 2007) (dismissing plaintiff’s
equal protection claim where plaintiff did not allege that she had been discriminated against on
account of her race, sex, or some other protected characteristic).

CONCLUSION
Defendants’ motion to dismiss (Dkt. #13) is granted, and the complaint is dismissed.
Plaintiff’s motion for appointment of counsel (Dkt. #20) is denied as moot.
IT IS SO ORDERED.

_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
August 11, 2011.

5

As plaintiff seeks relief for conditions existing before his sentence to SHU was
overturned, there appears to be no injunctive relief that could be afforded to plaintiff.
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