King v. Wenderlich et al
Filing
70
DECISION AND ORDER: Defendants' Motion for Partial Summary Judgment 63 is GRANTED and Plaintiff's retaliation, denial of religious liberty, and due process claims are DISMISSED WITH PREJUDICE. Because all claims against Defendants Wenderl ich, Tanea, LaManna, Prack, Robinson, and John Doe have been dismissed, the Clerk of Court will terminate those Defendants as parties to this action.The parties are directed to appear on September 5, 2018 at 3:00PM to set a trial date for Plaintiff's remaining claims.SO ORDERED. A copy of this NEF and Decision and Order have been mailed to the pro se Plaintiff. Signed by Hon. Frank P. Geraci, Jr. on 8/8/2018. (AFM)-CLERK TO FOLLOW UP-
PS
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
MARKUS KING,
Plaintiff,
Case # 14-CV-6491-FPG
v.
DECISION AND ORDER
STEPHEN WENDERLICH, et al.,
Defendants.
___________________________________
INTRODUCTION
Pro se Plaintiff Markus King brings this civil rights action against Defendants Stephen
Wenderlich, Albert Prack, Louis Tillinghast, Jeffrey Robinson, Tenea, Jamie M. LaManna, John
Doe, Sean T. Kelley, and Gary Bels pursuant to 42 U.S.C. § 1983. ECF No. 1. Plaintiff alleges
that, while he was incarcerated at Southport Correctional Facility, Defendants violated his Eighth
Amendment right to be free from cruel and unusual punishment through sexual abuse and the use
of excessive force, his right to due process, his First Amendment right to practice his religion, and
his right to seek redress of grievances without retaliation. ECF No. 1 at 6-15. On January 8, 2018,
Defendants moved for partial summary judgment and on January 24, 2018, Plaintiff responded in
opposition to Defendants’ motion. ECF Nos. 63, 65. For the reasons that follow, Defendants’
motion (ECF No. 63) is GRANTED.
LEGAL STANDARD
Summary judgment is appropriate if the “movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). “[T]he mere existence of some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment; the requirement is that there be
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no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)
(emphasis in original). While the court must view the inferences to be drawn from the facts in the
light most favorable to the nonmoving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986), a party may not “rely on mere speculation or conjecture as to the true
nature of the facts to overcome a motion for summary judgment,” Knight v. U.S. Fire Ins. Co.,
804 F.2d 9, 12 (2d Cir. 1986).
The non-moving party may defeat the summary judgment motion by making a showing
sufficient to establish that there is a genuine issue of material fact for trial. Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). However, “mere conclusory allegations or denials” are not evidence
and cannot by themselves create a genuine issue of material fact where none would otherwise exist.
Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980).
Because Plaintiff is proceeding pro se, his submissions are read liberally and interpreted
“to raise the strongest arguments that they suggest.” Fulton v. Goord, 591 F.3d 37, 43 (2d Cir.
2009) (citation omitted). Nevertheless, proceeding pro se does not relieve a litigant from the usual
summary judgment requirements. See Wolfson v. Bruno, 844 F. Supp. 2d 348, 354 (S.D.N.Y.
2011).
DISCUSSION
Plaintiff’s Complaint includes numerous causes of action: that Tillinghast made an inmate
yell during Plaintiff’s prayers in violation of his First Amendment rights; that, after Plaintiff
complained to Wenderlich, Tillinghast and Kelly retaliated against him by searching him in the
shower and sexually abusing him; that Tillinghast and Robinson wrote false misbehavior reports
about this incident; and that Plaintiff’s due process rights were violated at the two disciplinary
hearings following the misbehavior reports. ECF No. 1 at 4-15. Defendants argue that they are
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entitled to summary judgement on some claims: the official capacity, denial of religion, retaliation,
due process, and false misbehavior report claims, and thus argue that all claims against Defendants
Wenderlich, Tanea, LaManna, Prack, and Robinson should be dismissed. ECF No. 63-1 at 19.
I.
Official Capacity Claims
Plaintiff sues Defendants in their individual and official capacities.
The Eleventh
Amendment bars federal courts from exercising subject matter jurisdiction over claims against
states absent their consent to such suit or an express statutory waiver of immunity. See Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984). States are not “persons” under § 1983 and
§ 1983 does not abrogate Eleventh Amendment immunity. Will v. Mich. Dep’t of State Police,
491 U.S. 58, 65-66 (1989). The Eleventh Amendment bar extends to agencies and officials sued
in their official capacities. Kentucky v. Graham, 473 U.S. 159, 166 (1985); see also Hafer v. Melo,
502 U.S. 21, 27 (1991) (state officers acting in their official capacities are not “persons” since they
assume the identity of the government that employs them). Thus, a plaintiff may sue a defendant
in his official capacity only if he consents to be sued. Pennhurst, 465 U.S. at 199-201. Here,
because Defendants have not consented to be sued, the Eleventh Amendment bars Plaintiff’s suit
against them in their official capacities. Accordingly, all claims against Defendants in their official
capacities are DISMISSED WITH PREJUDICE.
II.
Unexhausted Claims
Defendants argue that Plaintiff did not raise certain claims in the only grievance he filed
with respect to the allegations set forth in his Complaint, and that those claims must be dismissed
as unexhausted.
Under the Prison Litigation Reform Act (“PLRA”), an inmate must exhaust his
administrative remedies before bringing a claim. See 42 U.S.C. § 1997e. “[E]xhaustion is
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mandatory under the PLRA and [] unexhausted claims cannot be brought in court.” Jones v. Bock,
549 U.S. 199, 211 (2007).
“[T]o properly exhaust administrative remedies prisoners must
complete the administrative review process in accordance with the applicable procedural rules.”
Id. at 218 (internal quotation marks omitted).
Defendants argue that Plaintiff did not exhaust his religious liberty and retaliation claims.
ECF No. 63-1 at 6. In the Complaint, Plaintiff alleges that he complained to Wenderlich that
Tillinghast sexually abused him during a pat frisk, and that Tillinghast then “instructed [a
confidential] informant to yell and scream at Plaintiff.” ECF No. 1 at 5. The only grievance that
Plaintiff filed and appealed to completion was Grievance SPT-57471-13, which is attached to the
Complaint as Exhibit “I.” ECF No. 1-3 at 46-49; ECF No. 63-1 at 7.
In the grievance, Plaintiff alleges impropriety during an October 10, 2013 search that is the
basis for many of the claims in Plaintiff’s Complaint. This grievance discusses that search and the
resulting disciplinary hearings, but it does not refer to the prior encounter with Tillinghast or his
verbal complaint to Wenderlich, which Plaintiff now alleges was the basis of the retaliation. The
grievance also does not allege that Defendants interfered with Plaintiff’s prayers.
In response to Defendants’ assertion that these claims are unexhausted, Plaintiff argues
only that his verified Complaint sets forth sufficient facts and that Wenderlich signed off on the
grievance at issue. ECG No. 65 at 3-4.
Because Plaintiff’s only grievance in this case does not refer to the retaliation or the denial
of religious liberty alleged in his Complaint, those claims are unexhausted. Even under the loose
exhaustion standard that once prevailed in some Circuits, “a grievance that does not give officials
notice of the nature of the inmate’s grievance does not afford the officials the opportunity the
PLRA requires.” Thomas v. Woolum, 337 F.3d 720, 733 (6th Cir. 2003), abrogated by Woodford
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v. Ngo, 548 U.S. 81, 93 (2006) (holding “that the PLRA exhaustion requirement requires proper
exhaustion” including compliance with all procedural rules). Here, Plaintiff offers no excuse for
failing to exhaust his administrative remedies as to these claims.
Plaintiff has not established that a genuine issue of material fact exists with respect to the
non-exhaustion of his retaliation and denial of religious liberty claims. Thus, he is precluded from
maintaining those claims in this action pursuant to the PLRA. See Mckinney v. Prack, 170 F. Supp.
3d 510, 518 (W.D.N.Y. 2016). Accordingly, Defendants’ summary judgment motion as to
Plaintiff’s retaliation and denial of religious liberty claims is GRANTED.
III.
Claims Regarding Plaintiff’s Two Disciplinary Hearings
A.
Overview
Plaintiff asserts that Tanea and LaManna violated his due process rights at the two
disciplinary hearings conducted on the misbehavior reports issued after the October 10, 2013
search. ECF No. 1 at 10-13. Specifically, Plaintiff argues that Tanea “failed to pose any questions
regarding the prior altercation to inmate Bell” at the first disciplinary hearing. Id. at 11. He also
asserts that Tanea denied his request to call other inmate witnesses and refused to let him question
Tillinghast about the prior altercation before concluding that Plaintiff was guilty of the alleged
misconduct. Id. The first disciplinary hearing was reversed and a new hearing was ordered on
January 9, 2014. Id.
LaManna conducted the second disciplinary hearing. Plaintiff alleges that the relevant
misbehavior report was defective because it did not give Plaintiff adequate notice of the location,
date, and time of the incident, or specify Plaintiff’s “actual connection to the drugs tested,”
“detailed knowledge” of that connection, and “suspected drug testing information.” Id. at 11-12.
Plaintiff alleges that Robinson, who tested the drugs, was not present when the drugs were seized
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and thus “never ascertained the facts relevant to the incident.” Id. at 12. Plaintiff also alleges that
LaManna refused to provide him with documents on the scientific basis of the tests. Id. Plaintiff
argues that LaManna violated his due process rights when he conducted the hearing without
Plaintiff, because LaManna did not “investigate for himself whether guards were lying when they
alleged Plaintiff refused to attend.” Id. Plaintiff alleges that LaManna committed the same
violations that Tanea did concerning Plaintiff’s witnesses. Id. at 12-13. Finally, Plaintiff alleges
that LaManna improperly took testimony on January 24, 2014, which violated the directive that
the hearing be conducted within 14 days. Id. at 13.
B.
The First Hearing
The first hearing was reversed because some of Tillinghast’s testimony was not recorded
and thus prevented proper administrative review. ECF No. 63-1 at 9; Prack Decl. ¶ 34. A new
hearing was ordered. The outcome of the first hearing was vacated before Plaintiff was detained
as a result of this misbehavior report, because he was confined to the Special Housing Unit
(“SHU”) for other violations and did not serve SHU time on the misbehavior report until February
17, 2017. ECF No. 63-1 at 11; ECF No. 1 at 76.
Any alleged due process violations from Plaintiff’s first hearing were rendered moot by the
vacatur of that hearing’s findings. See generally, Forman v. Mount Sinai Med. Ctr., 128 F.R.D.
591, 604 (S.D.N.Y. 1989). Plaintiff was not aggrieved by any procedural shortfalls of the hearing,
because the outcome was vacated before Plaintiff was held as a result of the proceeding. Because
Plaintiff only served SHU time based on the second hearing, only the due process violations that
allegedly occurred at the second hearing are relevant.
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C.
The Second Hearing
Plaintiff refused to appear at the second hearing, to sign the refusal form, and to sign the
appeal or refusal forms when the result of the hearing was provided to him. LaManna was the
designated hearing officer, and Plaintiff chose a hearing assistant, and requested that inmate Bell
testify and Tillinghast and Robinson be interviewed. ECF No. 63-3 at 6-7.
At the time of the hearing, inmate Bell refused to testify and Plaintiff refused to attend. Id.
at 7-8. LaManna took testimony from Sergeant Speights indicating that Plaintiff refused to attend
and otherwise conducted the hearing “as if [Plaintiff] were there.” Id. at 8. Based on Tillinghast
and Robinson’s testimony, LaManna found Plaintiff guilty of the alleged misbehavior violations
and of weapon and drug possession. Id. at 10. Plaintiff was provided with the result of the hearing
and appeals forms, which he refused to acknowledge. Id. Plaintiff also would not sign the refusal
forms. Id.
Plaintiff argues that LaManna “performed exactly each and every violation as defendant
Tanea” and effectively refused to call inmate Bell as a witness, and that Tillinghast and Robinson’s
testimony was “contradictory.” ECF No. 1 at 13. He further argues that, by proceeding on the
second day of the hearing, January 24, 2014, LaManna exceeded the 14-day limit for the rehearing,
which he argues began on January 9, 2014. Id.
D.
Legal Standard
An inmate facing disciplinary hearings that may result in a sufficiently serious penalty to
implicate a liberty interest are entitled to the following due process protections:
(1) advance written notice of the disciplinary charges; (2) an opportunity, when
consistent with institutional safety and correctional goals, to call witnesses and
present documentary evidence in his defense; and (3) a written statement by the
factfinder of the evidence relied on and the reasons for the disciplinary action.
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Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985) (quoting Wolff v.
McDonnell, 418 U.S. 539, 563-67 (1974)).
Plaintiff first claims that the misbehavior report denied him due process because it did not
give sufficient notice of the charges against him. The Court finds that Plaintiff was not denied due
process on these grounds. The misbehavior report provides ample notice of the allegations against
Plaintiff. See ECF No. 1-3 at 62. It includes the time and date of the alleged misbehavior, October
10, 2013 at 11:15, and the location, “C11 shower.” Id. The report advises Plaintiff that he is
accused of possessing a “ceramic razor type weapon” and “green leafy material.” Id. Plaintiff’s
reliance on alleged discrepancies between the misbehavior report and the log book showing the
timing of his transfer to D block (ECF No. 65 at 3) goes to the sufficiency of the proof against
him, not the sufficiency of the notice of the charges. See, e.g., Sira v. Morton, 380 F.3d 57, 71 (2d
Cir. 2004) (noting that often “one discrepancy in a misbehavior report can be excused because
other details provided adequate notice of the conduct at issue”).
Plaintiff argues that LaManna violated his due process rights by not personally going to his
cell to determine whether Sergeant Speight was lying when she testified that Plaintiff refused to
attend. The Second Circuit has held that “an inmate may waive the right to attend his disciplinary
hearing by refusing to attend after receiving notice and being given an opportunity to attend.”
Smith v. Fischer, 803 F.3d 124, 127 (2d Cir. 2015). In fact, an inmate who wishes to attend may
nonetheless waive the right to attend through his conduct, such as leaving the hearing and refusing
to return. Id. Even there, it is sufficient for the hearing officer to send a guard to the inmate’s cell
to verify the information received. Id. It is not required that the hearing officer personally
interview the inmate to verify what he learned via testimony from other prison officials. Thus,
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Plaintiff has not presented a genuine issue of material fact as to his claim that LaManna violated
his due process rights by not verifying that Plaintiff refused to attend the hearing.
Plaintiff next complains that LaManna violated his right to call inmate Bell as a witness.
“The Second Circuit has recognized that ‘if a witness will not testify if called, it cannot be a
‘necessity’ to call him.’” Shell v. Brzezniak, 365 F. Supp. 2d 362, 377 (W.D.N.Y. 2005) (quoting
Silva v. Casey, 992 F.2d 20, 22 (2d Cir. 1993)). Even assuming that Plaintiff properly exercised
his right to call Bell, he offers only speculation that Bell “was either never called as a witness or
even ‘threatened’ by defendants not to testify on plaintiff’s behalf at the second hearing.” ECF
No. 65 at 3. However, “speculation alone is insufficient to defeat a motion for summary
judgment.” McPherson v. N.Y. City Dep’t of Educ., 457 F.3d 211, 215 (2d Cir. 2006). Plaintiff
has not established a genuine issue of material fact as to his claim that LaManna violated his due
process rights by not calling inmate Bell as a witness.
Plaintiff claims that the evidence of his misbehavior was insufficient, that Tillinghast and
Robinson’s testimony was contradictory, and that log book evidence contradicted Tillinghast’s
testimony. However, the “Federal Constitution does not require evidence that logically precludes
any conclusion but the one reached by the [hearing officer].” Hill, 472 U.S. at 457. Rather, in
determining matters of sufficiency, this Court’s function is to determine “whether there is any
evidence in the record that could support the conclusion” the hearing officer reached. Id. at 472.
Here, even according to Plaintiff’s allegations, there was more than sufficient evidence to permit
the hearing officer to credit Tillinghast and Robinson’s testimony. Plaintiff does not dispute that
these witnesses accused him of the misconduct alleged, he merely claims that their testimony was
false. There was clearly record evidence, however, to support the conclusion LaManna reached.
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Thus, Plaintiff has not established a genuine issue of material fact as to his claim that the result of
the disciplinary hearing violated his due process rights.1
Plaintiff’s refusal to attend the second disciplinary hearing is fatal to his remaining due
process claims. “The core of due process is the right to notice and a meaningful opportunity to be
heard.” LaChance v. Erickson, 522 U.S. 262, 266 (1998) (citing Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 542 (1985)). Plaintiff’s decision not to attend his hearing means that
his remaining complaints—that proof was taken beyond the 14-day rehearing limit and that he was
not provided with documentation of the scientific principles underlying the drug testing—were not
raised. See, e.g. Rosales v. Bennett, 297 F. Supp. 2d 637, 639 (W.D.N.Y. 2004) (“Where an
inmate’s federal claims arise directly out of a disciplinary or administrative segregation hearing,
on the other hand (e.g., a claim of denial of procedural due process), he exhausts his administrative
remedies by presenting his objections in the administrative appeals process.”) (internal quotation
marks omitted).
Moreover, neither alleged flaw represents a due process denial. The requirement that the
second disciplinary hearing be completed within 14 days of receipt of the notice (ECF No. 63-3 at
17) was not clearly violated, as it is uncertain when the notice was received. Futher, “[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
1
Even if Plaintiff could establish a violation of his due process rights, the loss of good time credits would present a
bar to proceeding with his claims. In addition to the time that Plaintiff spent in SHU and attendant sanctions, Plaintiff
lost good time credits, which impacts the overall length of confinement. When a litigant makes a constitutional
challenge to a determination that affects the overall length of his imprisonment, the “sole federal remedy is a writ of
habeas corpus.” Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); see also Heck v. Humphrey, 512 U.S. 477 (1994)
(an inmate’s claim for damages resulting from due process violations during his criminal trial was not cognizable
under § 1983 until the conviction or sentence was invalidated on direct appeal or by a habeas corpus petition). In
Edwards v. Balisok, 520 U.S. 641 (1997), the Supreme Court “made clear that Heck’s favorable termination rule
applies to challenges made under § 1983 to procedures used in disciplinary proceedings that deprived a prisoner of
good-time credits.” Peralta v. Vasquez, 467 F.3d 98, 103 (2d Cir. 2006) (citing and discussing Edwards, 520 U.S. at
641).
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the outcome of the hearing.” Hinton v. Prack, No. 9:12-CV-1844 LEK/RFT, 2014 WL 4627120,
at *2 (N.D.N.Y. Sept. 11, 2014). Robinson’s testimony one day beyond the 14-day limit did not
prejudice Plaintiff. Plaintiff also was not present to receive documentation of the scientific
principles underlying the drug testing, thus he was prejudiced only by his decision to refuse to
attend the hearing.
Finally, Plaintiff’s due process claims against Wenderlich and Prack are derivative of the
above claims, and must likewise be dismissed with prejudice. See Black v. Selsky, 15 F. Supp. 2d
311, 318 (W.D.N.Y. 1998) (“[B]ecause [the plaintiff]’s claims against [the hearing officer] are
meritless and [the defendant]’s alleged wrongdoing was based on his affirming [the hearing
officer]’s determination, there is no basis for the claims against [the defendant] either.”).
E.
False Misbehavior Report
Plaintiff also claims that the two disciplinary hearings were the result of false misbehavior
reports. However, 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). Thus, an assertion that a
corrections officer provided false testimony at a disciplinary hearing, in and of itself, does not state
a cognizable due process claim. A potential constitutional violation would arise if Plaintiff were
not provided adequate due process in the proceeding, but then the claim would be based on the
conduct of the hearing and not on the truth or falsity of the testimony. See Boddie v. Schnieder,
105 F.3d 857, 860 (2d Cir. 1997) (affirming dismissal on the basis that “the issuance of a false
misbehavior report does not rise to the level of a constitutional violation”). Because Plaintiff has
not raised a genuine issue of material fact as to a due process violation, his false misbehavior report
claims are DISMISSED WITH PREJUDICE.
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CONCLUSION
For the reasons stated, the Court finds that there are no genuine issues of material fact as
to Plaintiff’s retaliation, denial of religious liberty, or due process claims.
Accordingly,
Defendants’ Motion for Partial Summary Judgment (ECF No. 63) is GRANTED and those claims
are DISMISSED WITH PREJUDICE. Because all claims against Defendants Wenderlich, Tanea,
LaManna, Prack, Robinson, and John Doe2 have been dismissed, the Clerk of Court will terminate
these Defendants as parties to this action.
The parties are directed to appear on September 5, 2018 at 3:00PM to set a trial date for
Plaintiff’s remaining claims.
IT IS SO ORDERED.
Dated: August 8, 2018
Rochester, New York
__________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court
2
Plaintiff’s suit against confidential informant John Doe—who has not been identified or served—is nonetheless
impacted by the determination dismissing all religious liberty claims, because those are the only claims asserted
against him.
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