Diaz v. Burns et al
Filing
18
-CLERK TO FOLLOW UP- DECISION AND ORDER granting 10 Motion to Dismiss as set forth in the Decision and Order. Signed by Hon. Michael A. Telesca on 11/6/13. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
FREDERICK DIAZ,
Plaintiff,
-vs-
No. 6:10-CV-6595(MAT)
DECISION AND ORDER
ROBERT BURNS, Correction Officer;
JOHN F. MORAN, Correction Officer;
FREDERICK W. KINTZEL, Sergeant; T.
ZERNIAK, Lieutenant; ROBERT A.
KIRKPATRICK, Superintendent; NORMAN
R. BEZIO, Director, Special
Housing; BRIAN FISCHER,
Commissioner, NYSDOCS,
Defendants.
I.
Introduction
Proceeding pro se, plaintiff Frederick Diaz (“Plaintiff” or
“Diaz”), an inmate in custody of the New York State Department of
Corrections and Community (“DOCCS”), instituted the present action
pursuant to 42 U.S.C. § 1983 against defendants, who are employees
of DOCCS. Defendants have filed a motion to dismiss (Dkt #10) the
complaint, which Plaintiff has opposed (Dkt #14).
On February 8, 2013, Thomas D. Terrizzi, Esq. filed a Notice
of Appearance (Dkt #16) in this matter, but he has not filed any
pleadings in opposition to Defendants’ Motion to Dismiss.
This matter was transferred to the undersigned on October 30,
2013 (Dkt #17).
II.
Factual Background
On September 14, 2007, Plaintiff was transferred to Wende
Correctional Facility (“Wende”). See Complaint (“Compl.”), ¶ 17.
While at Wende, Plaintiff experienced numerous problems, about
which
he
complained
via
letters
to
Commissioner
Fischer
and
grievances to Superintendent Kirkpatrick. Id., ¶¶ 24-25.
On April 7, 2008, Plaintiff was involved in a use of force
(“UOF”) incident with Correction Officer (“CO”) Burns, CO Moran and
Sergeant (“Sgt.”) Kintzel. Id., ¶¶ 30-35. As a result of the UOF
incident, Plaintiff was charged in a misbehavior report with
assaulting staff, engaging in violent conduct, interfering with an
employee, and disturbing the order of the facility. A tier III
disciplinary hearing was held, after which Plaintiff was found
guilty
of
all
charges.
Id.,
¶
43.
The
adverse
finding
was
administratively reversed by Director of Special Housing (“DSH”)
Bezio, who ordered a new hearing. Id., ¶¶ 45, 58, 59.
The re-hearing was conducted by Lieutenant (“Lt.”) Zerniak,
who found
Lt.
Plaintiff
Zerniak’s
guilty
finding,
and
of
all
charges. DSH
Plaintiff
instituted
Bezio
a
upheld
proceeding
pursuant to Article 78 of New York’s Civil Practice Law and Rules.
Compl., ¶¶ 62, 72, 75.
The Appellate Division, Third Department, of New York State
Supreme Court (“the Third Department”) found that Plaintiff had
been denied both his statutory and constitutional right to call
witnesses. In particular, the Third Department noted, Plaintiff
attempted to call, among others, an investigator from the Inspector
General’s office and a psychologist who examined Plaintiff shortly
-2-
after the incident. Plaintiff’s defense at both hearings was that,
contrary to the accusation that he assaulted the correction officer
without provocation, he actually was attacked by the officer in
retaliation
for
his
work
with
the
grievance office.
Diaz
v.
Fischer, 70 A.D.3d 1082, 1082, 894 N.Y.S.2d 218 (3d Dep’t 2010). At
the hearing, Plaintiff explained that the investigator commenced an
investigation of the incident shortly after it occurred and, in
addition to questioning those witnesses who testified at the first
hearing, was planning to interview inmate witnesses who had refused
to testify due to fear of retaliation. Id. at 1083. However, the
hearing officer (Lt. Zernkiak) denied the investigator as a witness
because he was “not in the area of the alleged incident.” Id. As
the Third Department noted, “investigators from the Inspector
General’s office routinely testify in prison disciplinary hearings,
as
do
other
investigation,
witnesses
rather
who
than
have
gained
personal
information
observation[.]”
through
Id.
n.1
(internal and other citations omitted).
With regard to the psychologist whom Plaintiff attempted to
call as a witness, Lt. Zerniak denied the request, notwithstanding
the fact DSH Bezio had administratively reversed the first hearing
because “the record failed to indicate how [Plaintiff]’s mental
health status was considered.” Diaz, 70 A.D.3d at 1083.
The Third Department found that “[i]nasmuch as these witnesses
may have provided testimony that was material, their absence
-3-
substantially
prejudiced
defense . . . .”
[Plaintiff]’s ability
to
present
his
Id. (citations omitted). Because the “the
deprivation constituted a violation of [Plaintiff]’s constitutional
right to call witnesses, rather than merely his statutory right,”
the appropriate remedy was expungement. Id. (citations omitted).
Accordingly,
the
Third
Department
annulled
the
disciplinary
determination and directed DOCCS to expunge all references to the
matter from Plaintiff’s institutional record. Id.
Plaintiff’s first claim in this lawsuit, “Violation of Equal
Protection”, alleges that Commissioner Fischer and Superintendent
Kirkpatrick are liable for all of the problems he has experienced
at Wende. Plaintiff asserts a “class of one” theory, alleging that
the was subjected to retaliation and discrimination based solely on
his hisotry of filing grievances and complaints against DOCCS’
staff. Compl., ¶ 26.
In support of his second claim, “Assault” (based on the UOF
involving CO Burns, CO Moran, and Sgt. Kintzel), he alleges that
Superintendent Kirkpatrick is liable for “negligent supervision and
shoddy investigations” into the UOF incident. Id., ¶ 41. Plaintiff
also includes allegations that CO Burns, CO Moran, and Sgt. Kintzel
attacked him “maliciously and sadistically for the very purpose of
causing harm” and “in order to have Plaintiff removed from the
Grievance Office. . . .” Id., ¶ 32. Plaintiff asserts that the as
a result of being “sucker-punched” by CO Burns in his right eye
-4-
area and on other parts of his body, he “suffered a large contusion
and swelling of his right eye, numerous abrasions throughout his
body, and severe neck and head pain[,]” with resultant vision
problems and headaches. Id., ¶ 37.
Plaintiff’s third claim, “Filing of False Misbehavior Report
and
Denial
of
Due
Process”,
names
CO
Burns,
CO
Moran,
and
Sgt. Kintzel. Plaintiff accuses them of filing a false misbehavior
report concerning the UOF incident. Id., ¶ 43. Plaintiff also
implicates
Lt.
administrative
Zerniak
for
hearing
finding
and
DSH
him
guilty at
Bezio
for
the
second
failing
to
administratively reverse the second hearing. Id., ¶ 76.
Defendants have moved to dismiss the first claim based upon a
violation of the equal protection clause. In addition, Defendants
have moved to dismiss all claims against Commissioner Fischer and
Superintendent Kirkpatrick on the basis that there is insufficient
personal involvement by these individuals. Defendants have also
moved
to
dismiss
misbehavior
report
the
on
claim
the
based
ground
on
that
the
it
filing
of
a
false
fails
to
state
a
constitutional claim.
Defendants have not moved against the allegations that CO
Burns and CO Moran utilized excessive force in violation of the
Eighth Amendment and that Sgt. Kintzel failed to protect Plaintiff
from the attack by CO Burns and CO Moran in violation of the Eighth
Amendment.
Likewise,
Defendants
-5-
have
not
moved
against
the
allegations that Lt. Zerniak denied Plaintiff’s constitutional
rights at the second disciplinary hearing, and that DSH Bezio
failed to remedy
on appeal the constitutional errors committed by
Lt. Zerniak.
Finally, Defendants have included in their memorandum of law
some case law regarding qualified immunity, but they have not made
any actual argument that they are entitled to qualified immunity.
For the reasons discussed below, Defendants’ partial motion to
dismiss is granted.
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
allegations must consist of more than mere labels or a “formulaic
-6-
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.
Violation of the Equal Protection Clause
The
Equal
Protection
Clause
of
the
Fourteenth
Amendment
ensures that similarly situated persons are treated alike. City of
Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985).
This right to be protected from “invidious discrimination” extends
to incarcerated persons. Wolff v. McDonnell, 418 U.S. 539, 556
(1974) (citing
Lee
v.
Washington,
390
U.S.
333
(1968)).
The
guarantee of the Equal Protection Clause safeguards not only groups
of individuals, but also individuals who constitute a “class of
one.” Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)
-7-
(per curiam) (“Olech”). In Olech, the Supreme Court held that where
the plaintiff is not a member of a suspect or protected class, he
still may assert an equal protection claim is based on a “class of
one” theory, which requires the plaintiff to show that he “has been
intentionally treated differently from others similarly situated
and
that
there
is
no
rational
basis
for
the
difference
in
treatment.” Id. at 564. Here, Diaz claims that he is a “class of
one” because he was “singled out for retaliation/discrimination for
no reason except for his history of filing grievances/complaints,
his lawsuit against Attica, and for having an assault on staff
report reversed, and thus [he] was uniquely situated compared to
other inmates at Wende.” Compl., ¶ 26.
Plaintiff has not come close to sufficiently alleging facts
that could be used to infer an allegation that similarly situated
prisoners were treated more favorably than he was. Plaintiff fails
to allege the existence of similarly situated individuals or that
he was treated differently from those individuals. Basically, he is
alleging
that
every
other
inmate
at
Wende
was
treated
more
favorably than he. Plaintiff has not adequately identified, beyond
a speculative level, other individuals with whom he can be compared
for
equal
protection
No. 10cv01187
purposes.
AJB(RBB),
2011
WL
Cf.
Garcia
7500435,
at
v.
Smith,
*8-9
(S.D.
Civil
Cal.
Dec. 13, 2011) (finding that plaintiff-inmate, who alleged a “class
of one” equal protection claim and asserted disparate treatment
-8-
based
on
his
propensity
for
grievance-filing,
“adequately
identified, beyond a speculative level, other individuals with whom
he [could] be compared”, where he identified approximately ten
specific inmates, similarly situated to him, who received more
favorable treatment). Accordingly, the Court finds that Diaz has
failed to state a claim for relief under the Equal Protection
Clause. The First Claim is dismissed with prejudice.
B.
Second Claim: “Retaliatory Assault by Staff Due to
Plaintiff Having Been Elected as an Inmate Grievance
Representative”
The “retaliatory assault” to which Plaintiff refers is the
April 7, 2008 UOF in which he claims he was assaulted by CO Moran
and CO Burns, and that Sgt. Kintzel failed to interrupt the attack
while it was occurring. Plaintiff alleges that Superintendent
Kirkpatrick is liable for the April 7, 2008 UOF based on his
“negligent supervision [of the officers involved in the UOF] . . .
.” Compl., ¶ 41. Plaintiff makes similar allegations against
Commissioner Fischer. E.g., id., ¶ 25. Defendants have moved to
dismiss the claims against the supervisory defendants based on lack
of personal involvement, but it does not appear that they have
moved to dismiss this claim on behalf of CO Burns, CO Moran, and
Sgt. Kintzel.
Damages under 42 U.S.C. § 1983 are appropriate only if a
defendant was personally involved in the alleged constitutional
violation. Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)
-9-
(citation and internal quotation marks omitted). In general, the
plaintiff must demonstrate that there is a “tangible connection
between the alleged unlawful conduct and the defendant.” Balkum v.
Sawyer, No. 6:06–cv–1467, 2011 WL 5041206, at *4 (N.D.N.Y. Oct.21,
2011) (citing Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986)).
Where, as here, the defendants are supervisory officials, the
doctrine of respondeat superior is inadequate to establish the
requisite personal involvement. Polk County v. Dodson, 454 U.S.
312, 325 (1981); see also Richardson v. Goord, 347 F.3d 431, 435
(2d Cir. 2003).
Five categories of personal involvement were articulated by
the Second Circuit in Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.
1995), which stated that personal involvement may be based on
allegations that “(1) the defendant participated directly in the
alleged constitutional violation, (2) the defendant, after being
informed of the violation through a report or appeal, failed to
remedy the wrong, (3) the defendant created a policy or custom
under which unconstitutional practices occurred, or allowed the
continuance of such policy or custom, (4) the defendant was grossly
negligent in supervising subordinates who committed wrongful acts,
or (5) the defendant exhibited deliberate indifference to the
rights of inmates by failing to act on information indicating that
-10-
unconstitutional acts were occurring.” Id. (citing Williams v.
Smith, 781 F.2d 319, 323–24 (2d Cir. 1986).1
As an initial matter, the allegations in the Complaint do not
indicate that Superintendent Kirkpatrick or Commissioner Fischer
were directly involved in the constitutional violations.
Diaz’s allegation that Commissioner Fischer and Superintendent
Kirkpatrick were “negligent” is insufficient to state the required
degree of personal involvement under th. Bass, 790 F.2d at 262
(citing Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 663
(1986)); see also Ayers v. Coughlin, 780 F.2d 205, 209 (2d Cir.
1985) (“An isolated omission to act by a state prison guard does
not
support
a
claim
under
section
1983
absent
circumstances
indicating an evil intent, or recklessness, or at least deliberate
indifference to the consequences of his conduct for those under his
control and dependent upon him.”) (quotation omitted).
Plaintiff also appears to seek to confer liability under the
second, third, and/or fifth Colon categories of liability. In
particular,
Plaintiff
asserts
that
“[d]espite
his
detailed
grievances[,] which continued to put defendant Kirkpatrick on
notice that Plaintiff’s safety was at risk, Kirkpatrick did nothing
1
District courts in this Circuit are divided as which of the Colon “species”
of personal involvement have survived the Supreme Court’s decisions in Iqbal, 556
U.S., supra, and Twombly, 550 U.S. , supra. Contrast Plunkett v. City of N.Y.,
No. 10–CV–6778 (CM), 2011 WL 4000985 (S.D.N.Y. Sept. 2, 2011), with Bellamy v.
Mount Vernon Hosp., 07–CV–1801 (SAS), 2009 WL 1835939 (S.D.N.Y. June 26, 2009).
The Court need not enter the debate at this time since Plaintiff’s allegations
do not suffice under any of the five Colon categories.
-11-
to end any of the retaliation Plaintiff was being subjected to.”
Id., ¶ 24. He alleges that Superintendent Kirkpatrick’s removal of
Plaintiff from his position as a Grievance Clerk constituted a
“clear message to the staff that they were free to retaliate
against
Plaintiff”
and
“subsequently
led
to
Plaintiff
being
assaulted by the staff after Plaintiff was elected as an Inmate
Grievance Representative. . . .” Id. These allegations are far too
vague and speculative to state the requisite level of personal
involvement in the UOF by Superintendent Kirkpatrick. Essentially
Plaintiff is asking the Court to hold that the filing of grievances
is sufficient to put a supervisory official on notice that the
grievant will be subjected to unconstitutional conduct at the hands
of his or her staff members.
The Court agrees with Defendants that Plaintiff has not
sufficiently alleged personal involvement by Commissioner Fischer
and
Superintendent
constitutional
Kirkpatrick
violations.
in
any
Accordingly,
the
of
the
Second
asserted
Claim,
as
against Commissioner Fischer and Superintendent Kirkpatrick, is
dismissed with prejudice, and these two
defendants are terminated
from this lawsuit.
C.
Third Claim: “Filing of False Misbehavior Report and
Denial of Due Process”
1.
Filing of a False Misbehavior Report
The Second Circuit has held that “a prison inmate has no
constitutionally guaranteed immunity from being falsely or wrongly
-12-
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), cert. denied, 485 U.S. 982 (1988). Rather, an
inmate’s constitutional right to due process requires that, before
prison officials mete out discipline based on a misbehavior report,
they must conduct a proper hearing. “In other words, the failure to
conduct a constitutionally adequate disciplinary hearing may give
rise to a Section 1983 action, but the mere filing of a false
misbehavior report against an inmate does not.” Greaves v. State of
N.Y., 958 F. Supp. 142, 144 (S.D.N.Y. 1997) (citing Williams v.
Smith, 781 F.2d 319, 324 (2d Cir. 1986) (“The filing of a false
report does not, of itself, implicate the guard who filed it in
constitutional violations which occur at a subsequent disciplinary
hearing.”) (citing Sommer v. Dixon, 709 F.2d 173, 174-75 (2d Cir.),
cert. denied, 464 U.S. 857 (1983)).
Accordingly, the Third Claim, to the extent that is based on
the mere filing of the allegedly false misbehavior report, is
dismissed
against
CO
Burns,
CO
Moran,
and
Sgt.
Kintzel,
is
dismissed for failure to state a claim.
2.
Plaintiff
Denial of Due Process at Disciplinary Hearings
alleges that
he
was
denied
due
process
by
an
individual whom he identifies only as “Hearing Officer” in the
Complaint. See Compl., pp. 8-11. He alleges that Lt. Zerniak, who
conducted the re-hearing conducted regarding the April 7, 2008
-13-
misbehavior
Plaintiff
report,
asserts
also
that
committed
DSH
Bezio
constitutional
is
liable
for
violations.
affirming
Lt. Zerniak’s adverse disciplinary ruling on administrative appeal.
Defendants
have
not
moved
to
dismiss
the
due
process
claims
asserted under the “Third Claim” heading in the Complaint.
3.
The Unnamed “Hearing Officer”
In his Complaint, Plaintiff mentions an unnamed defendant,
“Hearing Officer”, in the section setting forth the allegations in
support of his Third Claim. However, he does not list the unnamed
Hearing Officer under the section setting forth the Parties to this
action. It is therefore unclear whether Plaintiff intends to pursue
recovery against the Hearing Officer who conducted the initial
disciplinary hearing based upon the April 7, 2008 misbehavior
report.
In addition to not being identified, this individual, to date,
has not been personally served with process. F.R.C.P. 4(m) provides
that “[i]f a defendant is not served within 120 days after the
complaint is filed, the court—on motion or on its own after notice
to the plaintiff—must dismiss the action without prejudice against
that defendant or order that service be made within a specified
time.” FED. R. CIV. P. 4(m). If Plaintiff wishes to include this
Hearing Officer in the instant lawsuit, he must effectuate service
against him within thirty (30) days of the date of this Decision
and Order.
-14-
IV.
Conclusion
For all the foregoing reasons, Defendant’s motion to dismiss
(Dkt #10) is granted, and the following claims are dismissed with
prejudice: (1) the First Claim, which alleges a violation of the
Equal Protection Clause, in its entirety; (2) the Second Claim, to
the extent that it alleges failure to protect/failure to supervise
by
Commissioner
Fischer
and
Superintendent
Kirkpatrick
in
connection with the April 7, 2008 assault; and (3) the Third Claim,
to the extent it alleges constitutional injury based upon the
filing of a false misbehavior report by CO Burns, CO Moran, and
Sgt. Kintzel.
Defendants have not moved against the following claims, which
may proceed at this time: (1) the Second Claim, which asserts
claims of retaliation under the First Amendment and an excessive
use of force under the Eighth Amendment, and which seeks to hold
CO Burns and CO Moran directly liable for the April 7, 2008
assault; (2) the Second Claim, which alleges that Sgt. Kintzel
failed
to
intervene
to
stop
the
retaliatory
assault
by
his
subordinates, CO Burns and CO Moran, on April 7, 2008; (3) the
Third Claim, to the extent it alleges that Lt. Zerniak committed
due process violations at the re-hearing and that DSH Bezio failed
to remedy these errors on administrative appeal.
-15-
The following defendants are terminated with prejudice from
this action based upon the lack of sufficient personal involvement:
Superintendent Kirkpatrick and Commissioner Fischer.
The following Defendants remain in this action: CO Burns,
CO
Moran,
Sgt.
Kintzel,
Lt.
Zerniak,
and
DSH
Bezio.
These
Defendants are directed to file a responsive pleading to the
Complaint, in the form of an Answer, a Motion to Dismiss pursuant
to F.R.C.P. 12(b)(6), or a Motion for Judgment on the Pleadings
pursuant to F.R.C.P. 12(c) within thirty (30) days of the date of
this Decision and Order.
If Plaintiff wishes to include the unnamed Hearing Officer in
the instant lawsuit, he must effectuate service against this
individual within thirty (30) days of the date of this Decision and
Order. If
Plaintiff
does
not
effectuate
service
within
the
required time, the unnamed Hearing Officer will be terminated from
this lawsuit. If Plaintiff does serve the unnamed Hearing Officer
with the Complaint, this individual will have thirty (30) days from
the date of service in which to file a responsive pleading, in the
form of an Answer, a Motion to Dismiss pursuant to F.R.C.P.
12(b)(6), or a Motion for Judgment on the Pleadings pursuant to
F.R.C.P. 12(c).
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
November 6, 2013
Rochester, New York
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