Fludd v. Fischer et al
Filing
43
DECISION AND ORDER granting 6 Motion for Summary Judgment. Defendants motion to dismiss, or in the alternative, for summary judgment, ECF No. 6, is granted with regard to all of Plaintiffs claims. The Clerk is directed to enter judgment for Defendants. Signed by Hon. Charles J. Siragusa on 8/28/12. (KAP)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JOVAN FLUDD,
Plaintiff,
DECISION & ORDER
-vs10-CV-6603-CJS
BRIAN FISCHER, et al.,
Defendants.
APPEARANCES
For Plaintiff:
Jovan Fludd, pro se
06A2055
Wende Correctional Facility
P.O. Box 1187
Alden, New York 14004
For Defendants:
Gary Levine, A.A.G.
New York State Office of the Attorney General
144 Exchange Blvd, Suite 200
Rochester, NY 14614
INTRODUCTION
Siragusa, J. Plaintiff Jovan Fludd filed this pro se action seeking relief under 28
U.S.C. § 1983. The case is now before the Court on Defendants’ motion to dismiss the 96page complaint and for summary judgment, filed January 12, 2011, ECF No. 6. For the
reasons stated below, Defendants’ application is granted.
FACTUAL BACKGROUND
In his complaint, Plaintiff alleges forty-one violations of his constitutional rights by
eleven defendants. Compl., Oct. 25, 2010, ECF No. 1. For all relevant times, Plaintiff has
been an inmate of New York State Department of Correctional and Community Services
(“DOCCS”), housed at the Wende Correctional Facility (“Wende”). All of the named
defendants are involved in some capacity with DOCCS.
On January 20, 2006, Plaintiff was convicted of multiple counts of offering a false
instrument for filing, falsifying business records, and obstructing governmental
administration.
These convictions were all based upon Plaintiff’s actions, while
incarcerated on a prior conviction, of illegally filing UCC-1 financing statements falsely
naming as debtors various judges, prosecutors, clerical staff and other individuals involved
in his prior criminal prosecution.1 The sentencing judge, the Honorable Arlene Goldberg,
ordered restrictions on Plaintiff to be imposed by DOCCS during his incarceration,
including mail restrictions. On or about September 28, 2006, in response to two incidents
of Plaintiff circumventing his mail restrictions, Judge Goldberg issued a supplemental order
directing Plaintiff’s placement in the Special Housing Unit (“SHU”). Accordingly, Defendants
held Plaintiff in SHU. On March 18, 2008, Judge Goldberg’s supplemental order was
overturned by the New York State Appellate Division, holding that the sentencing court
lacked authority to issue a post-judgment order controlling confinement. Fludd v. Goldberg,
51 A.D.3d 153 (N.Y. App. Div. 2008).
On March 20, 2008, defendant Anthony Annucci, Deputy Commissioner of DOCCS,
(“Annucci”) directed defendant Robert Kirkpatrick, Superintendent of Wende, (“Kirkpatrick”)
1
The Appellate Division notes that filing false UCC-1 financing statements “is a practice
employed with some regularity by inmates . . . against public officials as a means of harassment.”
Fludd, 51 A.D. at 161. “Although these baseless filings are not legally effective to create an
enforceable lien, and indeed, the filer may be subject to civil and criminal sanctions and penalties,
nevertheless a record of the filing exists in the public database. Since there appears to be no
means for the victim of a bogus lien to completely remove or expunge the unauthorized UCC-1
statement, the filing, though false, may be found by an entity conducting a lien search, and may
interfere with the named individual’s ability to obtain credit or conduct other financial affairs such
as the purchase and sale of property.” Id.
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to draft an administrative segregation recommendation regarding Plaintiff, which was
completed
by
defendant
Corrections
Captain
Joseph
Noeth
(“Noeth”).
The
recommendation was based on a September 2006 search of Plaintiff’s cell that found more
UCC-1 forms (involving DOCCS employees), his prior convictions for false UCC-1 forms,
and multiple violations of his mail restrictions. Pl.’s Ex. F, ECF No. 1. Defendant Hearing
Officer Curtis Drown, (“Drown”) conducted an administrative hearing that concluded on
April 1, 2008. Drown ordered that “[Plaintiff] be placed in administrative segregation
because of the threat [he] present[s] to this or any NYS DOCS facility in which [he] may be
incarcerated.” Id. Drown’s decision was later affirmed by defendant Norman Bezio, Director
of Special Housing Unit at Wende (“Bezio”) on administrative appeal, on or about June 18,
2008. On or about April 14, 2008, Plaintiff (represented by an attorney) submitted an Article
78 petition to annul the April 1, 2008 administrative segregation decision. Plaintiff’s Article
78 petition was denied by the New York State Appellate Division, which affirmed the
administrative segregation hearing decision. Fludd v. New York State Dept. of Corr. Servs.,
62 A.D.3d 1149 (N.Y. App. Div. 2009). As a result, Defendants continued to hold Plaintiff
in administrative segregation. Plaintiff claims that his SHU cell is poorly ventilated, has a
plexiglass door, and is often unsanitary. See Compl. ¶¶ 214–20, ECF No. 1; Defs.’ Rule
56 Statement ¶ 13, ECF No. 7.
On April 10, 2008, April 17, 2008 and June 3, 2008, Kirkpatrick imposed
correspondence restrictions on Plaintiff. Plaintiff filed an administrative grievance with the
Central Office Review Committee (“CORC”) to protest the mail restrictions. Upon review,
CORC concluded that “the mail restrictions in place are the result of the grievant’s
harassment of Department employees and private citizens via the correspondence
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program, and are rationally related to a legitimate penological interest in maintaining the
security and order of the correctional facility.” Defs. Ex. B at 32, ECF No. 9-2. In response,
Plaintiff submitted a new Article 78 petition to annul the DOCCS mail restrictions. The state
court held that Plaintiff “failed to establish that [DOCCS employees] acted arbitrarily and
capriciously” in the management of his mail and denied his request for Article 78 relief.
Defs.’ Ex. B at 68, ECF No. 9-2.
On or about June or July 2009, defendant Deputy Superintendent Karen Crowley
(“Crowley”) implemented a procedure that limited law library access for all SHU inmates.
The new procedure was in response to an incident of law books being destroyed by SHU
inmates. In accordance with this policy, SHU inmates were provided with photocopies of
law books rather than being given the actual books themselves. The policy was limited in
duration and by July 6, 2010, SHU inmates were permitted access to the law books again.
In this § 1983 action, Plaintiff asserts several claims.2 First, Plaintiff alleges that his
constitutional rights were violated by Defendants’ enforcement of Judge Goldberg’s court
orders. Plaintiff further alleges that the administrative segregation hearing decision after
Judge Goldberg’s orders were vacated also violated his constitutional rights. Second,
Plaintiff alleges that while in administrative segregation he was denied meaningful status
reviews and, for two time periods, he was denied status reviews entirely. Third, Plaintiff
alleges that the mail restrictions imposed by Defendant Kirkpatrick in April-June 2008
2
In the Complaint, Plaintiff details five distinct allegations, listed under the headings of
numbered “claims.” Each “claim” details the relevant facts and allegations, and then includes
several related “causes of action.” Since all of Plaintiff’s “causes of action” involve the same facts
and allegations, the Court considers each subsidiary “cause” as part of the main “claim” it is listed
under.
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violated his First Amendment rights. Fourth, Plaintiff alleges that the restriction of law
library materials violated his right of access to court. Finally, Plaintiff alleges that the
conditions of his cell in SHU violated his Eight Amendment rights to be free from cruel and
unusual punishment. Defendants filed this motion on January 12, 2011, ECF No. 6.3
STANDARDS OF LAW
Motion to Dismiss
The U.S. Supreme Court, in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), clarified
the standard to be applied to a 12(b)(6) motion:
Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain
statement of the claim showing that the pleader is entitled to relief, in order
to give the defendant fair notice of what the claim is and the grounds upon
which it rests. While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a Plaintiff's obligation to
provide the grounds of his entitlement to relief 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 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).
Id. at 1964-65 (citations and internal quotations omitted). See also, ATSI Communications,
Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (“To survive dismissal, the plaintiff
must provide the grounds upon which his claim rests through factual allegations sufficient
‘to raise a right to relief above the speculative level.’") (quoting Bell Atl. Corp. v. Twombly)
(footnote omitted); Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007) (Indicating that Bell Atl. Corp.
v. Twombly adopted “a flexible ‘plausibility standard,’ which obliges a pleader to amplify a
3
Defendants’ motion for summary judgment was served and filed with “Notice to Pro Se
Litigant Opposing Motion for Summary Judgment,” accompanied by the full Irby notice attached
in ECF No. 8-1, Ex. A, pursuant to W.D.N.Y. Local R. Civ. P. 56.2.
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claim with some factual allegations in those contexts where such amplification is needed to
render the claim plausible[,]” as opposed to merely conceivable.)
When applying this standard, a district court must accept the allegations contained
in the complaint as true and draw all reasonable inferences in favor of the nonmoving party.
Burnette v. Carothers, 192 F.3d 52, 56 (1999), cert. denied, 531 U.S. 1052 (2000). On the
other hand, “[c]onclusory allegations of the legal status of the defendants’ acts need not be
accepted as true for the purposes of ruling on a motion to dismiss.” Hirsch v. Arthur
Andersen & Co., 72 F.3d 1085, 1092 (2d Cir. 1995)(citing In re American Express Co.
Shareholder Litig., 39 F.3d 395, 400-01 n. 3 (2d Cir.1994)). As the Supreme Court clarified
in Ashcroft v. Iqbal, 556 U.S. 662 (2009):
Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice. Id., at 555, (Although for the purposes
of a motion to dismiss we must take all of the factual allegations in the
complaint as true, we “are not bound to accept as true a legal conclusion
couched as a factual allegation” (internal quotation marks omitted)). Rule 8
marks a notable and generous departure from the hyper-technical,
code-pleading regime of a prior era, but it does not unlock the doors of
discovery for a plaintiff armed with nothing more than conclusions. Second,
only a complaint that states a plausible claim for relief survives a motion to
dismiss. Id., at 556. Determining whether a complaint states a plausible claim
for relief will, as the Court of Appeals observed, be a context-specific task
that requires the reviewing court to draw on its judicial experience and
common sense. 490 F.3d at 157-158. But where the well-pleaded facts do
not permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged—but it has not “show[n]”—“that the pleader is entitled
to relief.” Fed. Rule Civ. Proc. 8(a)(2).
Iqbal, 556 U.S. at 678–79 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)).
Inasmuch as plaintiff is proceeding pro se, this Court must, of course, follow the
direction of the the Second Circuit, that,
A pro se complaint should not be dismissed unless “it appears beyond
doubt that the plaintiffs can prove no set of facts in support of [their] claims
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which would entitle [them] to relief.” Conley v. Gibson, 355 U.S. 41, 45-46
(1957). When considering motions to dismiss a pro se complaint such as
this, “courts 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) (internal quotation marks omitted). This is especially
true when dealing with pro se complaints alleging civil rights violations. See
Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2001). Accordingly, the
plaintiffs’ allegations in this case must be read so as to “raise the strongest
arguments that they suggest.” McPherson v. Coombe, 174 F.3d 276, 280
(2d Cir. 1999) (internal quotation marks omitted).
Weixel v. Bd. of Educ. of N.Y., 287 F.3d 138, 145-146 (2d Cir. 2002).
Summary Judgment
The standard for granting summary judgment is well established. Summary
judgment may not be granted unless “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.” Fed. R. Civ. P. 56(c). A party seeking summary judgment bears the
burden of establishing that no genuine issue of material fact exists. See Adickes v. S.H.
Kress & Co., 398 U.S. 144, 157 (1970).
“[T]he movant must make a prima facie showing
that the standard for obtaining summary judgment has been satisfied.” 11 Moore’s Federal
Practice, § 56.11[1][a] (Matthew Bender 3d ed.). That is, the burden is on the moving party
to demonstrate that the evidence creates no genuine issue of material fact. See Amaker
v. Foley, 274 F.3d 677 (2d Cir. 2001); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d
Cir.1987) (en banc). Where the non-moving party will bear the burden of proof at trial, “the
burden on the moving party may be discharged by ‘showing’—that is, pointing out to the
district court—that there is an absence of evidence to support the nonmoving party’s case.”
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
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Once that burden has been met, the burden then shifts to the non-moving party to
demonstrate that, as to a material fact, a genuine issue exists. Fed. R. Civ. P. 56(e);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A dispute regarding a material
fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson, 477 U.S. at 248. In determining whether a genuine issue
exists as to a material fact, the court must view underlying facts contained in affidavits,
attached exhibits, and depositions in the light most favorable to the non-moving party. U.S.
v. Diebold, Inc., 369 U.S. 654, 655 (1962). Moreover, the court must draw all reasonable
inferences and resolve all ambiguities in favor of the non-moving party. Leon v. Murphy,
988 F.2d 303, 308 (2d Cir.1993); Anderson, 477 U.S. at 248-49; Doe v. Dep’t of Pub.
Safety ex rel. Lee, 271 F.3d 38, 47 (2d Cir. 2001), rev’d on other grounds; Connecticut
Dept. of Public Safety v. Doe, 538 U.S. 1, 123 S. Ct. 1160 (2003); International Raw
Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946 (3d Cir. 1990). However, a summary
judgment motion will not be defeated on the basis of conjecture or surmise or merely upon
a “metaphysical doubt” concerning the facts. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.
1991) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986)); Knight v. United States Fire Ins. Co., 804 F.2d 9 (2d Cir. 1986). Rather, evidentiary
proof in admissible form is required. Fed. R. Civ. P. 56(e). Furthermore, the party opposing
summary judgment “may not create an issue of fact by submitting an affidavit in opposition
to a summary judgment motion that, by omission or addition, contradicts the affiant’s
previous deposition testimony.” Hayes v. New York City, Department of Corrections, 84
F.3d 614, 619 (2d Cir. 1996).
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ANALYSIS
Official Capacity Claims and Personal Involvement
Plaintiff makes all of his claims against the Defendants “in their official and individual
capacity.” Pl.’s Mem. in Opp’n, ECF No. 28 at 5. Suits against government officials in their
official capacity “generally represent only another way of pleading an action against an
entity of which an officer is an agent.” Monell v. New York City Dept. of Social Servs., 436
U.S. 658, 690 n.55 (1978). “[T]he Eleventh Amendment bars a damages action against a
State in federal court. This bar remains in effect when State officials are sued for damages
in their official capacity.” Kentucky v. Graham, 473 U.S. 159, 169 (1985) (internal citations
omitted). Defendants in the present action are all employees of DOCCS, a state
governmental agency. Claims brought against these government employees in their official
capacities are necessarily brought against the State of New York. Since the State is
immune from suits for damages in federal court, Defendants’ motion to dismiss is granted
as to Plaintiff’s claims against Defendants in their official capacities.4
To sue a public official in his personal capacity in a § 1983 action, “it is enough to
show that the official, acting under the color of state law, caused the deprivation of a
federal right.” Id. at 166. The liability of that official, though, is based on his personal
involvement. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (“It is well settled in this
circuit that personal involvement of defendants in alleged constitutional deprivations is a
4
In this Decision and Order, the Court only addresses Plaintiff’s claims for damages.
Plaintiff’s requests for injunctive relief regarding his confinement and his correspondence
restrictions are addressed in separate orders, corresponding with Plaintiff’s separate motions.
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prerequisite to an award of damages under § 1983.”). With regard to the standard for
personal involvement, this Court held in Bryant v. County of Monroe that:
[I]n 2009, the Supreme Court held, “[b]ecause vicarious liability is inapplicable to ... [section] 1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has
violated the Constitution .” [Ashcroft v. Iqbal, --- U.S. ----, 129 S. Ct. 1937,
1948, 173 L. Ed. 2d 868 (2009) (emphasis added).] The Supreme Court
explicitly rejected the argument that, “a supervisor’s mere knowledge of his
subordinate’s discriminatory purpose amounts to the supervisor’s violating
the Constitution.” [Id. at 1949.] Thus, “[a]bsent vicarious liability, each
Government official, his or her title notwithstanding, is only liable for his or
her own misconduct.” [Id.] For example, “[t]he allegation that plaintiff sent
defendant [ ] letters complaining of prison conditions is not enough to allege
personal involvement.
No. 09-CV-6415-CJS, 2010 WL 4877799 at *3 (W.D.N.Y. Nov. 22, 2010) (alterations in
original) (quoting Bellamy v. Mount Vernon Hosp., No. 07 Civ. 1801 (SAS), 2009 WL
1835939 at *4 (S.D.N.Y. June 26, 2009)). Defendant’s liability, therefore, must be analyzed
according to each Defendant’s personal conduct.
Enforcement of Court Orders
Plaintiff alleges that defendants Brian Fischer, Commissioner of DOCCS,
(“Fischer”), Annucci and Kirkpatrick are liable for violations of his constitutional rights
caused by their enforcement of Judge Goldberg’s court orders. Compl. ¶¶ 123-27.
Government officials carrying out a facially valid court order are entitled to immunity to suits
for damages under § 1983. Roland v. Philips, 19 F.3d 552, 556 (11th Cir. 1994)
(“Therefore, law enforcement personnel, acting in furtherance of their official duties and
relying on a facially valid court order, are entitled to absolute quasi-judicial immunity from
suit in a section 1983 action.”); Valdez v. City and County of Denver, 878 F.2d 1285, 1288
(10th Cir. 1989) (“Absolute immunity for officials assigned to carry out a judge’s orders is
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necessary to insure that such officials can perform their function . . . .”); Respass v. New
York City Police Dept., 852 F. Supp. 173, 177 (E.D.N.Y. 1994) (“[T]he court finds it highly
unlikely that the mere averment that the warden failed to look behind the facial validity of
plaintiff’s commitment order would state a claim against the Department of Corrections and
[warden].”).
Fischer, Annucci and Kirkpatrick restricted Plaintiff’s mail pursuant to Judge
Goldberg’s March 13, 2006 court order, and held Plaintiff in segregation pursuant to Judge
Goldberg’s supplemental September 29, 2006 court order. Both court orders were facially
valid when the Defendants carried out the stated restrictions. Since the Defendants’
alleged violations were done within their official duties as prison officers and in furtherance
of facially valid court orders, they are entitled to absolute quasi-judicial immunity. Thus,
Defendants’ motion to dismiss is granted as to Plaintiff’s claims against Defendants for
enforcing Judge Goldberg’s court orders.
Administrative Segregation Hearing
Plaintiff alleges that defendants Kirkpatrick, Noeth, Drown, Fischer, Annucci and
Corrections Captain Martin Kearney (“Kearney”) violated his constitutional due process
rights during the administrative segregation hearing of March 20, 2008, which resulted in
his confinement in SHU. Compl. ¶¶ 128–42. Plaintiff has already filed an Article 78 petition
challenging the results of the hearing and the New York State Appellate Division issued a
decision against him. Fludd v. New York State Dept. of Corr. Servs., 62 A.D.3d 1149 (N.Y.
App. Div. 2009). Claims brought in Federal court under § 1983 filed after an unsuccessful
Article 78 claim are not barred by res judicata (or “claim preclusion”) because money
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damages are not available in an Article 78 proceeding. Vargas v. City of New York, 377
F.3d 200, 205 (2d Cir. 2004).
The doctrine of collateral estoppel (or “issue preclusion”), however, does apply
between Article 78 proceedings and subsequent § 1983 actions. See Giakoumelos v.
Coughlin, 88 F.3d 56, 59-61 (2d Cir. 1996) (stating that plaintiff’s choice to litigate his
claims in an Article 78 proceeding includes the risk of collateral estoppel in a subsequent
§ 1983 action). In Giakoumelos, the Second Circuit held:
Under New York law, the doctrine of collateral estoppel, or issue preclusion,
applies when a litigant in a prior proceeding asserts an issue of fact or law
in a subsequent proceeding and (1) the issue has necessarily been decided
in the prior action and is decisive of the present action, and (2) there has
been a full and fair opportunity to contest the decision now said to be
controlling.
Id. (internal quotations omitted). See also Irish Lesbian & Gay Org. v. Guiliani, 143 F.3d
638, 644 (2d Cir. 1998).
In his Article 78 proceeding, Plaintiff alleged that (i) he was prejudiced by an
eighteen month delay in drafting the administrative segregation recommendation; (ii) he
was denied evidence, witnesses, and documents; (iii) he was denied adequate assistance
in preparing for the hearing; (iv) he was denied a fair and impartial hearing; (v) the
evidence produced was not substantial or sufficient; and (vi) the resulting decision
constituted an abuse of administrative authority.5 The Court’s final judgment resolved all
of these litigated issues against Plaintiff. Fludd, 62 A.D.3d at 1150-53. Because the issues
resolved by the Appellate Division in Plaintiff’s Article 78 petition are the basis for Plaintiff’s
5
Though Plaintiff proceeds pro se in this action, the Court notes that Plaintiff was
represented by counsel in his Article 78 petition. Compl. ¶¶ 110–18.
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present due process claims involving the administrative segregation hearing, these claims
are barred by the doctrine of collateral estoppel.
Furthermore, the claims resolved by the Article 78 decision are also barred by the
judicially-created Rooker-Feldman doctrine, pursuant to which, “inferior federal courts have
no subject matter jurisdiction over suits that seek direct review of judgments of state courts,
or that seek to resolve issues that are ‘inextricably intertwined’ with earlier state court
determinations.” Vargas, 377 F.3d at 205. Plaintiff received a judgment from the New York
State Appellate Division on the alleged issues of his administrative segregation hearing
prior to the commencement of this action. Plaintiff’s request to appeal that court’s decision
to the New York State Court of Appeals was denied. Compl. ¶ 119. In this § 1983 claim,
Plaintiff is effectively asking this Court to review and overturn the state court decision. This
court is not permitted to conduct such review. Thus, Plaintiff’s claims as to the
administrative segregation hearing are subject to dismissal on this ground as well.
Even if any of Plaintiff’s due process claims are not barred by the state court
proceedings, Plaintiff’s claims still fail on the merits. The Second Circuit has held:
[W]hen a prisoner is confined to SHU for administrative reasons, he is
entitled to fewer procedural protections. Generally, prison inmates have no
liberty interest in remaining within the general prison population, and out of
administrative segregation . . . An inmate confined for administrative reasons
is entitled to only minimal process—“some notice of the charges against him
and an opportunity to present his views to the prison official charged with
deciding whether to transfer him to administrative segregation.” Ordinarily,
a written statement by the inmate to the prison officials who are reviewing his
confinement will demonstrate that an inmate has been notified of the charges
against him and that he has been given an adequate opportunity to present
his views to those officials.
Matiyn v. Henderson, 841 F.2d 31, 34 (2d. Cir.1988) (internal citations omitted) (quoting
Hewitt v. Helms, 459 U.S. 460, 468-76). Defendants wrote an administrative segregation
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recommendation on March 20, 2008, in advance of the hearing. Compl. ¶ 51. On March
21, 2008, Plaintiff gave Corrections Officer James Herring (acting as Plaintiff’s assistant)
a three page request for various documents and witness interviews in preparation for the
hearing. Id. at ¶ 59; Pl.’s Ex. G at 2, Oct. 25, 2010, ECF No. 1-1. Plaintiff also “prepared
several pages of handwritten notes and objections to assist him in presenting his defense
in which [sic] he brought with him to the hearing.” Compl. ¶ 61. Not only was Plaintiff
physically present at the administrative segregation hearing, but his written notes were
read aloud and introduced into the administrative record. Based on the facts, Defendants
clearly provided Plaintiff with adequate process in his administrative segregation hearing.
For the above reasons, Plaintiff’s claims as to the administrative segregation hearing are
dismissed.
Administrative Segregation Status Reviews
Plaintiff makes two allegations as to his administrative status reviews. First, Plaintiff
alleges that no status reviews occurred between March 20, 2008, and December 2, 2008,
or between August 3, 2009, and April 1, 2010. Compl. ¶¶ 168–69. Under the New York
state regulations that govern administrative segregation, an inmate in administrative
segregation status is entitled to “have such status reviewed every 60 days.” N.Y. Comp.
Codes R. & Regs. tit. 7, § 301.4(d). However, after the Supreme Court’s decision in
Sandin v. Conner, 515 U.S. 472 (1995), this Circuit has held that a prisoner only has a
protected liberty interest if “the deprivation . . . is atypical and significant and the state has
created the liberty interest by statute or regulation.’” Tellier v. Fields, 280 F.3d 69, 80 (2d
Cir. 2001) (quoting Sealey v. Giltner, 116 F.3d 47, 52 (2d Cir. 1997)) (omission in original).
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The Second Circuit concluded that “a statute or regulation which involves state-created
rights creates a protectable liberty interest when an official’s failure to adhere to the statute
results in an atypical, significant deprivation of real substance, and not simply ephemeral
and insubstantial violations.” Id. at 83 (internal citations and quotation marks omitted); see
also Iqbal v. Hasty, 490 F.3d 143, 161 (2d Cir. 2007) (quoting Tellier, 280 F.3d at 83), rev’d
and remanded on other grounds, 556 U.S. 662 (2009).
Plaintiff here fails to carry his burden of proof that the alleged deprivation of status
reviews resulted in “atypical and significant hardship . . . in relation to the ordinary incidents
of prison life.” Sandin, 515 U.S. at 484. In Palmer v. Richards, the Second Circuit held:
Where the plaintiff was confined for an intermediate duration—between 101
and 305 days—development of a detailed record of the conditions of the
confinement relative to ordinary prison conditions is required. In those
situations, a district court must make a fact-intensive inquiry, examining the
actual circumstances of SHU confinement in the case before it . . . .
364 F.3d 60, 64-65 (2d Cir. 2004) (internal citations and quotation marks omitted). Plaintiff
alleges he was deprived of status reviews for periods of approximately 257 and 241 days
in duration. In his “Fifth Claim,” Plaintiff alleges a conditions of confinement claim based
on his SHU cell’s poor ventilation, plexiglass door, and regular unsanitariness. At no point,
however, does Plaintiff allege that such conditions are atypical in relation to the general
prison conditions. Consequently, Plaintiff has failed to prove that the conditions of his SHU
confinement constituted an atypical deprivation of real substance. Therefore, he cannot
prove that he had a protected liberty interest that required Due Process protection.
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Second, Plaintiff alleges that the administrative status reviews that were conducted
during his confinement in SHU were not meaningful.6 Compl. ¶¶ 170–79. “[A]dministrative
segregation may not be used as a pretext for indefinite confinement of an inmate.” Hewitt,
459 U.S. at 477 n.9. However, “decisions of prison administrators should be given a large
degree of deference.” Giano v. Kelly, 869 F. Supp. 143, 149 (W.D.N.Y. 1994) (citing Bell
v. Wolfish, 441 U.S. 520, 547 (1979)). Administrative status reviews can be done informally
and do not require evidence additional to that stated in the original hearing. Edmonson v.
Coughlin, 21 F. Supp. 2d 242, 253 (W.D.N.Y. 1998) (“a decision to continue a prisoner in
[administrative segregation] may be based on the same facts and security considerations
that compelled his initial transfer”); see also Hewitt, 459 U.S. at 474 (“The judgment of
prison officials in this context . . . turns largely on purely subjective evaluations and
predictions of future behavior.”). The “Sixty-Day Administrative Segregation Review”
reports were signed by three officers and ultimately approved by Kirkpatrick, in compliance
with DOCCS and New York State procedures. The reports all stated reasons for
recommending continued administrative segregation, including further incidents of Plaintiff
possessing UCC-1 forms. See, e.g., Pl.’s Ex. I at 11, ECF No. 1-1. In general, each report
indicated the collective opinion of the reviewing officers that Plaintiff would be a threat to
the safety and security of the facility if allowed to reenter the general population. This Court
gives the expert evaluations of prison officials deference and, without clear evidence to the
contrary, the Court accepts the given reasons for continued confinement as legitimate and
6
Plaintiff provides copies of the “Sixty-Day Administrative Segregation Review” reports in
Ex. I at 7–14, ECF No. 1-1. The dates of the appended reviews are 12/2/08, 2/1/09, 4/1/09, 6/1/09,
8/3/09, 4/1/10, 6/1/10.
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not pretext for indefinite confinement. Thus, Plaintiff’s claims that he was denied
meaningful reviews are dismissed.
Mail Restrictions
Plaintiff also alleges that Kirkpatrick and Fischer imposed mail restrictions on him
that violated his constitutional rights. Compl. ¶¶ 193-96. In Plaintiff’s prior Article 78 action
protesting his mail restrictions (filed April 23, 2010), he claimed that the mail restrictions
violated DOCCS’ policy and, in addition, violated his state and federal constitutional rights.
Defs.’ Ex. B at 7–9, ECF No. 9-2. The state court denied all of Plaintiff’s claims. Defs.’ Ex.
B at 68, ECF No. 9-2. As discussed above, because Plaintiff’s constitutional claims were
decided by the state court, the claims are barred by collateral estoppel and the RookerFeldman doctrine.
Even assuming that Plaintiff’s claims were not barred, Plaintiff’s mail restriction
claims would fail on the merits. A prisoner’s right to the free flow of mail is protected by the
First Amendment. Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003). This right, however,
may be justly restricted to serve legitimate governmental interests. Procunier v. Martinez,
416 U.S. 396, 412 (1974). A challenged prison mail restriction is valid “if it is reasonably
related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987);
Johnson v. Goord, 445 F.3d 532, 534 (2d Cir. 2006). To show that a given mail restriction
is unreasonable an inmate must point to an alternative that “fully accommodates the
prisoner’s rights at de minimis cost to valid penological interests.” Turner, 484 U.S. at 91.Iin
light of Plaintiff’s repeated offenses using the mail system and multiple attempts to
circumvent his mail restrictions, the mail restrictions imposed on Plaintiff are reasonably
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related to the legitimate penological interest of prison safety and security. Furthermore,
Plaintiff has not identified any alternatives that would accommodate his rights at a de
minimis cost to prison safety. Consequently, Plaintiff’s mail restriction claims are dismissed.
Law Library Access
Plaintiff alleges that the restriction of law library materials to SHU inmates for a brief
period violated his right of access to court. Compl. ¶ 210. The constitutional right of access
to the courts includes the derivative right of meaningful assistance by “providing prisoners
with adequate law libraries or adequate assistance from persons trained in the law.”
Bounds v. Smith, 430 U.S. 817, 828 (1977). This right is not absolute, however, and “prison
officials may place reasonable restrictions on inmates’ use of facility law libraries, as long
as those restrictions do not interfere with inmates’ access to the courts.” Shell v. Brun, 585
F. Supp. 2d 465, 468 (W.D.N.Y. 2008). Because law library access is a derivative right, a
prisoner must suffer an actual injury to have standing to state a claim. Lewis v. Casey, 518
U.S. 343, 351 (1996) (“[T]he inmate must therefore go one step further and demonstrate
that the alleged shortcomings in the library or legal assistance program hindered his efforts
to pursue a legal claim.”). Plaintiff’s claims here fail because he does not allege, nor do
the facts indicate, that the law library restrictions caused him any actual harm. To the
contrary, Plaintiff adequately pleaded two claims in 2010 (his third Article 78 claim filed
April 23, 2010, and this claim filed October 25, 2010), despite the restricted access from
about June or July 2010 until July 6, 2010. Therefore, Plaintiff’s claims as to the restricted
law library access are dismissed.
Cell Conditions
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Lastly, Plaintiff alleges that Defendant Kirkpatrick violated his Eighth Amendment
right to be free from cruel and unusual punishment. Plaintiff alleges that his SHU cell is
poorly ventilated, has a plexiglass door and is regularly unsanitary. Compl. ¶¶ 257–59. The
Second Circuit has held that:
To prove a violation of the Eighth Amendment, an inmate must show (1) that
the deprivation alleged is objectively sufficiently serious such that the plaintiff
was denied the minimal civilized measure of life’s necessities, and (2) that
the defendant official possessed a sufficiently culpable state of mind
associated with the unnecessary and wanton infliction of pain.
Trammell v. Keane, 338 F.3d 155, 161 (2d Cir. 2003) (internal quotations omitted) (citing
Farmer v. Brennan, 511 U.S. 825 (1994)). The scienter requirement for prison officials in
prison conditions cases is “‘deliberate indifference’ to inmate health or safety.” Farmer, 511
U.S. at 834. That is, the prison official must be subjectively aware that a serious risk to
inmate health or safety exists, and deliberately disregard that risk. Id. at 837.
Plaintiff’s claim fails to make a prima facie showing for either prong of the two-part
analysis. First, Plaintiff’s complaints that his SHU cell is uncomfortable due to poor
ventilation, plexiglass, and uncleanliness, are not objectively sufficiently serious enough
to be considered inhumane. See Blyden v. Mancusi, 186 F.3d 252, 263 (1999) (“Because
society does not expect or intend prison conditions to be comfortable, only extreme
deprivations are sufficient to sustain a ‘conditions-of-confinement’ claim.”). Second, even
if the conditions of confinement were sufficiently serious, Plaintiff has not shown that
Kirkpatrick had a sufficiently culpable state of mind as to the risks created by the SHU cell
conditions. Plaintiff has the burden to show that Kirkpatrick was aware of the conditions
creating the excessive risk, and that he consciously disregarded the risk. The evidence
presented by Plaintiff does not illustrate such subjective recklessness. To the contrary,
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Plaintiff states that Kirkpatrick took measures to abate any potential harm from cell
cleanliness by allowing SHU inmates to clean their cells three times a week and providing
the inmates with the necessary cleaning supplies. Thus, Defendants’ motion is granted as
to Plaintiff’s conditions of confinement claim.
CONCLUSION
For the reasons stated above, Defendants’ motion to dismiss, or in the alternative,
for summary judgment, ECF No. 6, is granted with regard to all of Plaintiff’s claims. The
Clerk is directed to enter judgment for Defendants.
IT IS SO ORDERED.
Dated: August 28, 2012
Rochester, New York
ENTER:
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
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