O'Diah v. The State of New York et al
Filing
80
-CLERK TO FOLLOW UP- DECISION AND ORDER granting 69 Motion to Dismiss; finding as moot 73 Motion for Summary Judgment; and dismissing the complaint in its entirety. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 12/9/13. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
AROR ARK O’DIAH,
Plaintiff,
-vs-
No. 6:10-CV-6592(MAT)
DECISION AND ORDER
C.O. NETH, et al.,
Defendants.
I.
Introduction
Pro se plaintiff Aror Ark O’Diah (“Plaintiff” or “O’Diah”), an
inmate in the custody of the New York Department of Corrections and
Community Supervision (“DOCCS”), filed a 76-page, 156-paragraph
complaint against numerous DOCCS defendants alleging violations of
his constitutional rights under 42 U.S.C. § 1983. By order dated
March 14, 2011 [#65],1 the Court struck numerous paragraphs from
the complaint [#64] because they related to occurrences that are
the subjects of other § 1983 lawsuits filed by O’Diah. Defendants
were directed to respond only to the allegations on pages 20
through 49 of the complaint that pertained to occurrences at
Wyoming Correctional Facility (“Wyoming”), i.e., Paragraphs 15
through 80.
Defendants have filed a motion to dismiss [#69] the complaint
pursuant to Federal Rule of Civil Procedure (“F.R.C.P.”) 12(b)(6)
on the basis that O’Diah has failed to state any claims for which
1
Numerals in brackets refer to the numbered docket entries in this case in
the Western District of New York’s Case Management/Electronic Case Files
(“CM/ECF”) system.
relief may be granted. O’Diah opposed the motion to dismiss and
filed a motion for summary judgment [#73]. The Court (Larimer,
D.J.) denied the summary judgment motion [#76]. The matter was
transferred to the undersigned on October 30, 2013 [#79]. For the
reasons set forth below, Defendants’ motion to dismiss is granted,
and the complaint is dismissed in its entirety.
II.
Factual Background
Plaintiff has not separated his allegations into discrete
causes of action in the complaint. The allegations cover disparate
topics and will be summarized as needed in the Discussion section,
infra.
III. General Legal Principles
A. Motions to Dismiss for Failure to State a Claim
Rule 12(b)(6) allows dismissal of complaints based upon the
plaintiff’s failure “to state a claim upon which relief can be
granted.” FED. R. CIV. P. 12(b)(6). In order “[t]o survive a motion
to
dismiss
under
[Rule
12(b)(6)],
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, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). In assessing a claim’s plausibility, the district
court must “assume [the] veracity” of all well-pleaded factual
allegations contained in the complaint, Iqbal, 556 U.S. at 679, and
draw every reasonable inference in favor of the plaintiff, Zinermon
v. Burch, 494 U.S. 113, 118 (1990). However, the plaintiff’s
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allegations must consist of more than mere labels or a “formulaic
recitation of the elements of a cause of action,” Iqbal, 556 U.S.
at
678
(quoting
Twombly,
550
U.S.
at
555),
and
bare
legal
conclusions are “not entitled to the assumption of truth.” Id. at
679.
B. Construction of Pro Se Pleadings
The Supreme Court has noted that “[a] document filed pro se is
to be liberally construed,’ and must be held to less stringent
standards than formal pleadings drafted by lawyers.’” Erickson
v.Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429
U.S. 97, 106 (1976)); see also Bertin v. United States, 478 F.3d
489, 491 (2d Cir. 2007). Because Plaintiff is acting pro se, the
Court will construe his submissions liberally, “to raise the
strongest arguments they suggest.” Bertin, 478 F.3d at 489.
IV.
Discussion
A.
Paragraphs 15-30
Paragraphs 15 through 30 of the complaint are asserted against
Dr.
DePerio,
whom
Plaintiff
saw
for
“serious,
severe
and
excruciating pains from headaches. . . .” Complaint (“Compl.”) ¶ 17
[#64]. The allegations do not pertain to the medical care provided
by Dr. DePerio but instead accuse Dr. DePerio of being a racist.
For
instance,
Dr.
DePerio
informed
Plaintiff
that
“then
Presidential Candidate and Senator Barack H. Obama (“President
Obama”) can never impress him. . . .” Id., ¶ 16. According to
Plaintiff, Dr. DePerio asked him if President Obama “was [his]
-3-
brother or did [they] come from the same Africa[n] country.” Id.,
¶ 24. Plaintiff states that Dr. DePerio’s remarks amount to a “hate
crime” and caused him to feel “humiliated, embarrassed” and “reaggravated” his “pre-existing poor medical condition. . . .” Id.,
¶ 27.
A plaintiff cannot maintain a claim under Section 1983 based
on solely verbal abuse or racial slurs. See Purcell v. Coughlin,
790 F.2d 263, 265 (2d Cir.1986) (holding that name-calling without
“any appreciable injury” did not violate inmate's constitutional
rights); Cole v. Fischer, 379 F. App’x 40, 43 (2d Cir. 2010)
(unpublished opn.); Jermosen v. Coughlin, 878 F. Supp. 444, 449
(N.D.N.Y. 1995) (“[V]erbal threats or abuse are not sufficient to
state a constitutional violation cognizable under § 1983.”). O’Diah
has not alleged that he was ever physically threatened or that he
actually suffered any injury in connection with Dr. DePerio’s
remarks. Absent allegations of appreciable physical harm, the
remarks by Dr. DePerio about which Plaintiff complains cannot from
the basis of a section 1983 claim. The allegations in Paragraphs 15
through 30 are dismissed with prejudice.
B.
Paragraphs 31-33 & 36
In Paragraphs 31 through 33 and 36, Plaintiff claims that
Corrections
Officer
(“CO”)
Atkins
repeatedly
called
him
an
“asshole”. As noted above, verbal harassment, without more, is not
actionable under Section 1983. See Keyes v. City of Albany, 594 F.
Supp. 1147, 1155 (N.D.N.Y. 1984) (holding that abusive language by
-4-
police officers–characterized by the court as vile and abusive
racial epithets–could not form the basis of plaintiffs’ Section
1983 claim). The allegations in Paragraphs 31 through 33 and 36 are
dismissed with prejudice.
C.
In
Paragraphs 34-35
these
paragraphs,
Plaintiff
alleges
that
CO
Atkins
unlawfully subjected him to “cube confinement” without issuing a
misbehavior report and holding a disciplinary hearing, and that his
confinement
also
violated
“Prison
Directives,
Procedures
and
Correction Law Sections [sic] 138(4).” Cube confinement refers to
a form of punitive confinement for violating prison rules. See Lee
v. Coughlin, 26 F. Supp.2d 615, 618 (S.D.N.Y. 1998) (“Three forms
of punitive confinement exist in New York: placement in SHU,
keeplock, which is confinement to the prisoner’s cell, and cube,
which is
confinement
to
the
prisoner’s own bed
in
dormitory
housing.”). Inmates in cube confinement are entitled to the same
privileges, and subject to the same restrictions, as inmates in
keeplock.2
2
Under keeplock, an inmate is confined to his general population cell for
23 hours per day, with one hour reserved for exercise, the same time permitted
general population inmates for exercise. During the 23-hour period, inmates are
permitted to leave their cell for showers, personal and social visits, medical
examinations and counseling in the same manner and for the same number of times
as general population inmates in a maximum security facility. The most
significant differences between keeplock and general population inmates are that
the former do not leave their cells for out-of-cell programs unless they are a
part of mandatory educational programs, and general population inmates spend more
time out of their cells on weekends. See Camacho v. Keane, No. 95 CIV. 0182(SS),
1996 WL 204483, at *2 (S.D.N.Y. Apr. 25, 1996).
-5-
The Court construes Plaintiff’s allegations that he was not
provided with a misbehavior report (notice) and a hearing (an
opportunity to be heard) as attempting to state a procedural due
process claim. In order to succeed on such a claim, Plaintiff must
show that he had a liberty or property interest in remaining free
from cube confinement and that he was deprived of that interest
without procedural due process safeguards. Green v. Bauvi, 46 F.3d
189, 194 (2d Cir. 1995) (citations omitted).
In Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court
held that liberty interests protected by the Due Process Clause
“will be generally limited to freedom from restraint which, while
not exceeding the sentence in such a manner as to give rise to
protection by the Due Process Clause of its own force, nonetheless
imposes atypical and significant hardship on the inmate in relation
to the ordinary incidents of prison life.” Id. at 474. Applying
that standard to the type of confinement Plaintiff sustained, the
Court finds that he has not alleged a sufficiently “atypical and
significant hardship . . . in relation to the ordinary incidents of
prison life” so as to warrant due process safeguards. Plaintiff’s
confinement did not entail segregation from the general population,
as was the case in Sandin. Plaintiff continued to be housed in his
regular residential area, with some restrictions placed on his
activities. Plaintiff has not plausibly alleged that his cube
confinement “work[ed] a major disruption in [his] environment . .
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. .” Sandin, 515 U.S. at 486. Therefore, it does not give rise to
a liberty interest protected by the due process clause.
To the extent that Plaintiff alleges that CO Atkins violated
a DOCCS directive, he does not have a cognizable claim. To state a
valid claim under Section 1983, a “plaintiff must allege that
1) the challenged conduct was attributable at least in part to a
person who was acting under color of state law and 2) the conduct
deprived the plaintiff of a right guaranteed under the Constitution
of the United States.” Snider v. Dylag, 188 F.3d 51, 53 (2d Cir.
1999) (citing Dwares v. City of N.Y., 985 F.2d 94, 98 (2d Cir.
1993)
(emphasis
supplied)).
“A
violation
of
a
state
law
or
regulation, in and of itself, does not give rise to liability under
42 U.S.C. § 1983.” Cusamano v. Sobek, 604 F. Supp.2d 416, 482
(N.D.N.Y. 2009) (collecting cases). Furthermore, the violation of
a DOCCS Directive, standing alone, is not a violation of any New
York state law, statute, or regulation. Rivera v. Wohlrab, 232 F.
Supp.2d 117, 123 (S.D.N.Y. 2002)(citation omitted). This is because
DOCCS
directives
are
“merely
a
system
the
Commissioner
has
established to assist him in exercising his discretion,” which the
Commissioner retains, despite any violation of these directives.
Farinaro v. Coughlin, 642 F. Supp. 276, 280 (S.D.N.Y. 1986); see
also Cabassa v. Gummerson, 01-CV-1039, 2008 WL 4416411, at *6 n.24
(N.D.N.Y. Sept. 24, 2008).
In sum, the allegations in paragraphs 34 and 35 are dismissed
with prejudice for failure to state a claim.
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D.
Paragraphs 37-38
In paragraphs 37 and 38, Plaintiff again alleges that various
DOCCS employees harbored “egregious hostility” toward him and, on
unspecified occasions, relayed the contents of his mail to other
unspecified DOCCS employees. These vague allegations do not state
colorable claims for relief under § 1983.
Plaintiff also asserts that “Neth, Atkins, Vanson, and Lunith,
as John Doe, [and] Mr. Weber, deliberately denied processing [his]
grievances against Neth, Konkle Andrews, Sr., Vason and Atkins.”
Compl., ¶ 38. “[I]nmate grievance programs created by state law are
not required by the Constitution and consequently allegations that
prison officials violated those procedures does not give rise to a
cognizable § 1983 claim.” Shell v. Brzezniak, 365 F. Supp.2d 362,
370 (W.D.N.Y. 2005) (citations omitted); see also Cancel v. Goord,
No. 00–CV–2042 (LMM), 2001 WL 303713, at *3 (S.D.N.Y. Mar. 29,
2001) (citations omitted). Plaintiff’s claim that Defendants failed
to properly investigate his grievances is not cognizable under
§ 1983. E.g., Espinosa v. McCabe, No. 10–CV–497 (MAD/DRH), 2012 WL
4108884, at *16 (N.D.N.Y. Aug. 28, 2012) (citing Carrasquillo v.
City of N.Y., 324 F. Supp.2d 428, 438 (S.D.N.Y. 2004) (stating that
inmate involved in bus accident had “no constitutional or federal
right to an investigation into that bus accident, or to have his
requests for an investigation answered”).
-8-
E.
Paragraphs 39-41, 46-60, 69-71, 73-74, & 79
Plaintiff asserts that on or about February 22, 2009, “it was
brought to [his] attention that there has been ongoing plotts
[sic], plans, put in place to harass [him]” and “to kill [him].”
Compl., ¶ 39. According to Plaintiff, these plots and plans were
the result of a vast conspiracy of corrections officers at Wyoming
Correctional Facility. Id., ¶ 40. In order to make it “easier to
prey on [him],” the corrections officers colluded to arrange for
him to be moved to a different residence. Id., ¶ 41.
On
March
12,
unconstitutionally
2010,
Plaintiff
“arrested”
and
states
placed
that
into
he
was
involuntary
protective custody (“IPC”). Id., ¶ 41. Plaintiff complains that he
was found “guilty” of IPC. He questions the legality of his
placement in IPC since he was “the victim of [a] death threat,” and
he does not understand how he “can be guilty of involuntary
protective custody.” Id., ¶ 79.
1.
Conspiracy
“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. Culbertson, 200 F.3d 65,
72 (2d Cir. 1999) (citations omitted). Defendants argue that they
could
not
participate
in
a
conspiracy
in
light
of
the
intracorporate conspiracy doctrine, which provides that “if the
-9-
conspiratorial conduct challenged is essentially a single act by a
single corporation
acting
exclusively
through
its
own
.
.
.
officers[ ] and employees, each acting within the scope of his
employment[,]” there can be no actionable conspiracy. Herrmann v.
Moore,
576
F.2d
453,
459
(2d
Cir.
1978).
However,
taking
Plaintiff’s allegations as true, there is no fair interpretation of
them that suggests Defendants would have been acting within the
scope of their employment had they entered into an agreement to
kill him. See Randle v. Alexander, No. 10 CIV. 9235 JPO, ___ F.
Supp.2d ___, 2013 WL 2358601, at *11 (S.D.N.Y. May 30, 2013)
(declining to apply intracorporate conspiracy doctrine where no
fair
interpretation
of
inmate’s
allegations
suggested
that
defendants were acting within the scope of their responsibilities
as prison guards when they forced two inmates to fight each other
in the mantrap area; conspiracy claim could proceed as a matter of
law, so long as plaintiff stated a claim).
Nonetheless, summary dismissal of O’Diah’s conspiracy claim is
required. His allegations of conspiracy are
bizarre,
and
wholly
inadequate
to
meet
unsupported and
the
Iqbal/Twombly
plausibility standard. He asserts no facts to support an inference
that any of the Defendants had a “meeting of the minds” about
inflicting
unconstitutional
injuries
upon
him.
Even
assuming
arguendo that his move to a different residence was an “overt act”,
he has failed to show that he suffered the injury he believed would
result (i.e., his murder). The other injuries he alleges (i.e.,
-10-
loss
of
certain
property
during
the
move)
are
not
of
a
constitutional dimension. Plaintiff’s conspiracy allegations are
factually frivolous, and dismissal therefore is warranted. Denton
v. Hernandez, 504 U.S. 25, 32-33 (1992)) (“[A] finding of factual
frivolousness [warranting dismissal] is appropriate when the facts
alleged
rise
to
the
level
of
the
irrational
or
the
wholly
incredible. . . .”) (citing Neitzke v. Williams, 490 U.S. 319, 327
(1989)).
2.
The
Involuntary Protective Custody
protective
custody
(“PC”)
unit
at
a
DOCCS
facility
functions to protect inmates who cannot remain in the general
prison population. Griffin v. Coughlin,
743 F. Supp. 1006, 1009 &
n. 6 (N.D.N.Y. 1990). “Inmates housed in PC run the gamut from
victims to the victimizers.” Thus, some of the inmates in PC are
placed in protective custody even though they do not request the
placement. Id. These inmates reside in what is referred to as
involuntary protective custody (“IPC”). Id.
Applying the Sandin analysis to this claim, the Court finds
that Plaintiff’s confinement in IPC was well within the “‘normal
range of custody “normal range of custody which the conviction has
authorized the State to impose,’ and therefore does not constitute
a violation of the Due Process Clause.” White v. Artuz, No. 94 Civ.
4592, 1996 WL 84498, at *2 (S.D.N.Y. Feb. 27, 1996) (quoting
Sandin, 515 U.S. at 478; further quotation omitted)).
-11-
O’Diah was placed in protective custody not for punitive
purposes, but for his own safety, pursuant to New York regulations
governing the treatment of “inmates who are potential victims.” See
N.Y. COMP. CODE R. & REG., tit. 7, § 330.5. Courts in this Circuit
have found that this type of confinement is clearly not outside the
“regime . . . to be normally expected” by one entering prison.
White, 1996 WL 84498, at *2. In addition, Plaintiff does not allege
any
personal
injury,
disciplinary
sanctions,
or
denial
of
privileges resulting from his confinement in IPC. Therefore, he
cannot
claim
that
confinement
in
IPC
imposed
a
“significant
hardship” on him. O’Diah consequently cannot fulfill Sandin’s
requirement that the confinement be of the “type” in which a state
might create a liberty interest. Id.
As to whether or not New York has in fact created a interest
in being free from protective custody, we find that New York has
not created the requisite entitlement. There is simply no New York
law
that
entitles
inmates
to
remain
in
the
general
prison
population. On the contrary, New York Corrections Law clearly
establishes that
[t]he superintendent of a correctional facility may
keep any inmate confined in a cell or room, apart
from accommodations provided for inmates who are
participating in programs of the facility, for such
period as may be necessary for the maintenance of
order or discipline.
N.Y. CORR. LAW §
137(6).
Moreover,
prison
officials
have
the
discretion to place inmates who are “potential victims” in IPC for
-12-
their own safety. See N.Y. COMP. CODE R. & REG., tit. 7, § 330.5.
New York law therefore has not created an entitlement to be free
from IPC to the extent it is necessary for the safety of the inmate
and the “maintenance of order or discipline.”
Accordingly,
because
neither
the
Due
Process
Clause
nor
New York State law creates a liberty interest in being free from
protective custody, involuntarily, voluntarily or otherwise, O’Diah
was
not
entitled
to
procedural
due
process
before
being
so
confined. Accord, White v. Artuz, . The Court notes that in the
present case, although he was not entitled to a hearing, O’Diah did
receive a one. He has not alleged any procedural deficiencies
occurred during the hearing; he simply disagrees with the outcome
of the hearing.
In sum, Paragraphs 39 through 41, 46 through 60, and 69
through 71 are dismissed with prejudice.
F.
Paragraphs 36, 42-45, 61 & 68
Plaintiff asserts that on February 23, 2009, and on March 8,
2010, he was “physically attacked without probable cause by [an]
inmate at the undue influences of Mr. Weber; Correctional Officers
Atkins, Neth, Konkle Andrews, Sr., Lunith, at the endorsement of .
. . Superintendent David Unger.” Compl., ¶¶ 43, 68. According to
Plaintiff, he allegedly was denied access to the medical clinic Id.
In the next paragraph, he alleges that Dr. DePerio exerted “undue
influence” on CO Atkins to force him not to write up an incident
report or bring Plaintiff to the medical clinic. Id., ¶ 44. In
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addition, CO Atkins allegedly “knocked [him] down” in the snow when
returning him to his residence and aggravated his “pre-existing
medical condition.” Id., ¶ 45.
1.
Failure to Protect from Assault
In Farmer v. Brennan, 511 U.S. 825, 828 (1994), the Supreme
Court addressed the conditions under which a prison official’s
failure
to
prevent
Constitution.
The
an
inmate-on-inmate
Eighth
Amendment
assault
imposes
a
violates
duty
on
the
prison
officials to “‘take reasonable measures to guarantee the safety of
the inmates,” id. (quoting Hudson v. Palmer, 468 U.S. 517, 526–27
(1984)), and in particular imposes “‘a duty . . . to protect
prisoners from violence at the hands of other prisoners.” Id. at
833 (quoting Cortes–Quinones v. Jimenez–Nettleship, 842 F.2d 556,
558 (1st Cir. 1977)).
A prisoner alleging a “failure to protect” claim must show
that he was “incarcerated under conditions posing a substantial
risk
of
serious
harm”
and
that
the
prison
official
showed
“deliberate indifference” to the prisoner’s safety.” Farmer, 511
U.S. at 834. The plaintiff must plausibly allege that the defendant
acted with “a sufficiently culpable state of mind[,]” id. at 834–35
(internal citations and quotations omitted), that is, the defendant
knew of and disregarded “an excessive risk to inmate health or
safety. . . .” Id. at 837.
Plaintiff has provided no details about the time or location
of the attacks, how the incidents occurred, or any witnesses to the
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incidents. Notably, the alleged assailants were not identified,
indicating that CO Atkins could not have been on notice that
Plaintiff
required
protection
from
any
particular
inmates.
Plaintiff has not set forth plausible allegations regarding either
element of a failure to protect claim.
2.
Deliberate Medical Indifference
“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) (bracketed text in original)). The standard for
determining whether there has been an Eighth Amendment violation
based on deliberate indifference to a prisoner’s serious medical
needs
incorporates both objective and subjective elements. The
objective ‘medical need’ element measures the severity of
the alleged deprivation, while the subjective ‘deliberate
indifference’ element ensures that the defendant prison
officials acted with a sufficiently culpable state of
mind.
Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2003) (citing
Estelle, 429 U.S. at 104; Hathaway v. Coughlin, 99 F.3d 550, 553
(2d Cir. 1996)).
Plaintiff’s assertions against CO Atkins and Dr. DePerio
completely fail to fulfill the minimum pleading standards for a
deliberate indifference claim. There is nothing from which a factfinder could infer the requisite facts to show a sufficiently
serious medical need or a criminally reckless state of mind.
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3.
Assault by CO Atkins
According to Plaintiff, CO Atkins “pushed and knocked [him]
down” outside his dormitory “without rational basis.” Compl., ¶ 43.
“Not every push or shove, even if it may later seem unnecessary in
the
peace
of
a
judge’s
chambers,
violates
a
prisoner’s
constitutional rights.” Johnson v. Glick, 481 F.2d 1028, 1033
(2d Cir. 1973). Notably, Plaintiff does not allege any resultant
injury from the incident, which was “not sufficiently serious or
harmful to reach constitutional dimensions.” Boddie v. Schnieder,
105 F.3d 857, 862 (2d Cir. 1997) (inmate’s allegations of excessive
force–that he was bumped, grabbed, elbowed and pushed by two
corrections officers–did “not approach an Eighth Amendment claim”)
(citing Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993)).
G.
Paragraphs 62-67
Plaintiff asserts that various corrections officers “dropped
false slips” on him, accusing him of drug use.
It is well-settled
that a “prison inmate has no constitutionally guaranteed immunity
from being falsely or wrongly accused of conduct which may result
in the deprivation of a protected liberty interest.” Freeman v.
Rideout, 808 F.2d 949, 951 (2d Cir. 1986); see also Boddie, 105
F.3d at 862 (“[A] prison inmate has no general constitutional right
to be free from being falsely accused in a misbehavior report.”).
“The inmate must show something more, such as that he was deprived
of due process during the resulting disciplinary hearing, or that
the misbehavior report was filed in retaliation for the inmate’s
-16-
exercise of his constitutional rights.” Velez v. Burge, 483 F.
App’x 626, 627 (2d Cir. 2012) (citing Boddie, 105 F.3d at 862;
Freeman, 808 F.2d at 951). This Plaintiff has not done. Indeed,
Plaintiff indicates that he had negative urinalysis results, so the
matter did not proceed beyond the filing of the allegedly false
misbehavior reports.
H.
Paragraphs 72, 75-78
Plaintiff asserts that when he was unconstitutionally placed
into IPC, certain items of his personal property were lost during
the move. In particular, he complains that he lost $500 worth of
food from the commissary, as well as various documents–“private
business feasability studies”, design plans, and installation plans
for a manufacturing plan allegedly worth over $50 million dollars.
Under Hudson v. Palmer, 468 U.S. at 536, even the intentional
destruction of an inmate’s property by a prison officer does not
violate the Due Process Clause if the state provides that inmate
with an adequate post-deprivation remedy. Id. O’Diah has not stated
an actionable constitutional claim because New York state law
provides him with an adequate post-deprivation remedy, i.e., § 9 of
the Court of Claims Act. Reyes v. Koehler, 815 F. Supp. 109, 114
(S.D.N.Y. 1993) (citing Blum v. Koch, 716 F. Supp. 754, 762
(S.D.N.Y. 1989); other citations omitted).
V.
Conclusion
For the reasons discussed above, Defendants’ motion to dismiss
[#69] is granted, and the complaint [#64] is dismissed in its
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entirety. The Court hereby certifies that any appeal from this
Decision and Order would not be taken in good faith and therefore
denies leave to appeal as a poor person. Any further requests for
poor person status must be made, on motion, to the Second Circuit.
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:
December 9, 2013
Rochester, New York
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