Houston v. Coveny et al
DECISION AND ORDER: The Court has reviewed the Amended Complaint (ECF No. 48) pursuant to the 28 U.S.C. § 1915A criteria, and finds that the retaliation, sexual abuse, and excessive force claims against Defendant Cady are sufficient to go forwar d. Plaintiff's deliberate indifference claim against Defendant Mewar is construed as a motion to amend the complaint in Houston v. Sheahan, No. 13-CV-6594-FPG, to supplement his factual allegations against that Defendant only, that motio n is granted, and Defendant Mewar is dismissed from this action. Plaintiff's remaining claims are dismissed in their entirety and the remaining Defendants are dismissed from this action. Plaintiff's Motion for Preliminary Injunction (ECF No. 65) is DENIED. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 8/30/17. A copy of the NEF and the Decision and Order have been mailed to the pro se Plaintiff. (SCE)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MICHAEL COVEY, et al.,
DECISION AND ORDER
Pro se Plaintiff Tyrone Houston (“Plaintiff”), an inmate confined at the Five Points
Correctional Facility, has commenced this action against Defendants (who are prison officials)
seeking relief pursuant to 42 U.S.C. § 1983 (“§ 1983”) based upon numerous alleged violations
of his civil rights during his confinement at this facility. ECF No. 1. Plaintiff also filed a Motion
for leave to proceed in forma pauperis (“IFP”) (ECF No. 2), which was initially granted by the
Court (ECF No. 4).
Defendants later filed a Motion to revoke Plaintiff’s IFP status pursuant to 28 U.S.C. §
1915(g).1 ECF No. 15. The Court agreed that Plaintiff’s IFP status was subject to revocation and
dismissed the original Complaint without prejudice to refile with payment of the filing fee. ECF
No. 19. Plaintiff subsequently filed the $400.00 filing fee and the original Complaint was
reinstated. ECF Nos. 21, 25). Defendants answered the original Complaint on December 15,
This section provides that “a prisoner [may not] bring a civil action or appeal a judgment in a civil action
or proceeding [in forma pauperis] if the prisoner has, on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action or appeal in a court of the United States that was dismissed on
the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless
the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
Thereafter, Plaintiff filed an Amended Complaint (ECF No. 48) and a Motion for
Preliminary Injunction (ECF No. 65).
Plaintiff’s Amended Complaint is currently before the Court for review pursuant to the
28 U.S.C. § 1915A criteria, which is discussed below.
In his Amended Complaint, Plaintiff asserts the following causes of action against
Defendants: (1) retaliation by filing false misbehavior reports, imposing various sanctions, the
denial of an unbiased disciplinary hearing officer, threating to file false possession of contraband
charges, and subjecting Plaintiff to unlawful cell searches and random drug tests because he filed
complaints against certain prison officials; (2) destruction of Plaintiff’s property, including a
television and radio set and his legal papers; (3) denial of the right to access to courts; (4) sexual
assault by Defendant L. Cady; (5) deliberate indifference to serious dental condition by
Plaintiff’s dentist, Defendant Mewar; and (6) filing false information in Plaintiff’s educational
records. Plaintiff is seeking an award of compensatory and punitive damages and reasonable
In their memorandum of law submitted in opposition to the Amended Complaint (ECF
No. 56), Defendants asserted, inter alia, that: (1) claims concerning false misbehavior reports
and false allegations against Plaintiff do not state constitutional deprivations; (2) an inmate does
not have the right to be free from urine testing; (3) sanctions imposed against Plaintiff, including
keeplock, were not atypical, and Plaintiff does not have a right to a recorded disciplinary
hearing; (4) inmates have no right to a grievance, a particular result, or a properly processed
grievance; (5) Plaintiff’s retaliation claims are stated in wholly conclusory terms and without
factual allegations; (6) Plaintiff’s property damage, altered educational records, missed law
library visit, cell search, and reading of his legal papers claims are not cognizable under § 1983;
and (7) the sexual assault claim against Defendant Cady does not allege a valid constitutional
cause of action.
Standard of Review
Section 1915 “provide[s] an efficient means by which a court can screen for and dismiss
legally insufficient claims.” Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (citing Shakur v.
Selsky, 391 F.3d 106, 112 (2d Cir. 2004)). Section 1915A provides that the Court shall dismiss a
complaint in a civil action in which a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity if, at any time, the Court determines that the action
(1) fails to state a claim upon which relief may be granted or (2) seeks monetary relief against a
defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1)-(2). To state a claim
under Section 1983, a plaintiff must establish: (1) the deprivation of any rights, privileges, or
immunities secured by the Constitution and its laws; (2) by a person acting under the color of
state law. See 42 U.S.C. § 1983. “Section 1983 itself creates no substantive rights; it provides
only a procedure for redress for the deprivation of rights established elsewhere.” Sykes v. James,
13 F.3d 515, 519 (2d Cir. 1993).
Eleventh Amendment Immunity
As an initial matter, the Court finds that to the extent that Plaintiff is seeking money
damages against Defendant prison officials in their official capacities, these claims must be
dismissed pursuant to 28 U.S.C. § 1915A(b)(1)-(2). The Eleventh Amendment divests the Court
of subject matter jurisdiction over any claims for monetary damages against a New York State
official acting in his or her official capacity unless the state has consented to the suit, or waived
this immunity, or Congress has abrogated it. See Kentucky v. Graham, 473 U.S. 159, 169
(1985); Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir. 2006)
(Eleventh Amendment immunity extends to “state agents and state instrumentalities that are,
effectively, arms of a state.”) (quoting Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429
Throughout his Amended Complaint, Plaintiff makes repeated claims of retaliation.
However, it is well settled that such claims cannot be stated “in wholly conclusory terms” but
must instead contain factual allegations that are “specific and detailed.” Friedl v. City of New
York, 210 F.3d 79, 86 (2d Cir. 2000); see also Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.
1996) (“A complaint of retaliation that is wholly conclusory can be dismissed on the pleadings
alone.”); Gill v. Mooney, 824 F.2d 192, 194 (2d Cir. 1987). Further, a retaliation claim must
allege: “(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse
action against the plaintiff, and (3) that there was a causal connection between the protected
speech and the adverse action.” Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004).
In each cause of action, Plaintiff accuses Defendants of perpetrating the alleged
constitutional violation in retaliation for his filing of grievances and filing of his prior, related
civil action, Houston v. Sheahan, No. 13-CV-6594-FPG, 2016 WL 554849 (W.D.N.Y. Feb. 10,
2016) (“Case No. 13-CV-6594”), or both. However, with the exception of Plaintiff’s retaliation
claim against Defendant Cady concerning an alleged sexual assault, each claim of retaliation is
stated in wholly conclusory terms or fails to assert a causal connection between the protected
speech and the alleged adverse action.
The Court notes that although one such instance,
specifically the destruction of Plaintiff’s legal documents on February 28, 2015, is alleged to
have occurred the day after the service of the Summons and Complaint in this case (ECF No. 48
at 15), the docket sheet reveals that the accused were not served until over two weeks later. See
ECF No. 8).
With respect to Plaintiff’s complaints about being unfairly added to the “Security Risk
Group (SRG) Cell Searches and Random Drug tests” list, he has alleged no causal connection
between the filing of his lawsuit and the implementation of random drug tests. Moreover, while
“urinalyses performed for drug testing constitutes an illegal search when it is undertaken to
harass an inmate,” Holmes v. Fischer, No. 09-CV-00829S(F), 2016 WL 552962, at *7
(W.D.N.Y. Feb. 10, 2016), “[r]andom urinalysis testing has been upheld as constitutional under
the Fourth, Fifth, and Fourteenth Amendments as an effective means for detecting and deterring
prison drug use.” Oyague v. State, No. 98 CIV. 6721 (TPG), 2000 WL 1231406, at *3 (S.D.N.Y.
Aug. 31, 2000), aff’d sub nom. Oyague v. State of New York, 13 F. App’x 16 (2d Cir. 2001)
(citing Storms v. Coughlin, 600 F. Supp. 1214 (S.D.N.Y. 1984)).
Plaintiff’s retaliations claims are therefore dismissed as to all Defendants, apart from
With respect to the claims against Defendant Cady, Plaintiff alleges that on September
22, 2015, Cady stopped him in front of the school building entrance and ordered Plaintiff to put
his hands on the wall. Defendant Cady violently pulled Plaintiff’s pants upward, squeezing
Plaintiff’s genital and rectal areas tightly, and then kicked Plaintiff’s right foot. Cady then
squeezed Plaintiff’s penis “real hard twice, causing painful swelling and blood urinations.” As
he did this, Cady told Plaintiff: “You want to keep writing me up, now I’m going to FU-K UP . .
. it[’]s on now and I’m going to search your cell right now. You can write all you want and
nothing is going to happen, except I’m going to FU-K YOU.” ECF No. 48 at 24. The Court
finds that Plaintiff has stated this claim with sufficient specificity at this stage of the proceedings,
and Plaintiff’s retaliation claim will go forward against Defendant Cady only.
False allegations and misbehavior reports
Plaintiff alleges that certain Defendants have filed or threatened to file false disciplinary
charges and misbehavior reports against him. It is well settled that “a prison inmate has no
general constitutional right to be free from being falsely accused in a misbehavior report” absent
any additional factors, “such as retaliation against the prisoner for exercising a constitutional
right.” Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997); see also Freeman v. Rideout, 808
F.2d 949, 951 (2d Cir. 1986) (“The 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”). As noted above, Plaintiff has not alleged any additional factors, such
as retaliation, that give rise to a constitutionally guaranteed protection from the filing of false
Although Plaintiff’s retaliation claims against Defendant Cady are
permitted to go forward, he has not alleged the retaliatory filing of any false charges by Cady.
Therefore, these claims fail.
Access to the Courts
With respect to Plaintiff’s access to the courts claim for his missed law library visit and
tampering with his legal documents, it is well settled a denial of access to the courts claim must
contain non-conclusory allegations demonstrating that (1) the defendants acted deliberately and
maliciously and (2) the plaintiff suffered an actual injury. Burroughs v. Petrone, 138 F. Supp. 3d
182, 210 (N.D.N.Y. 2015) (citing Lewis v. Casey, 518 U.S. 343, 353 (1996)). A plaintiff must
also show that the actual injury suffered is traceable to the challenged conduct of prison officials.
Actual injury is not shown unless a “nonfrivolous legal claim had been frustrated or was being
impeded” due to the actions of prison officials. Lewis, 518 U.S. at 351-52. In other words, the
pleadings must allege how the missed visit and tampering with legal papers prejudiced his
“ability to seek redress from the judicial system.” Smith v. O’Connor, 901 F. Supp. 644, 649
Plaintiff alleges here that the interference with his law library special access visit caused
the rejection of his “Article 78 Appeal in the 3rd Department.” However, he fails to allege that a
nonfrivolous legal claim was impeded or how it was so impeded by the conduct alleged.
Plaintiff also alleges that several Defendants reviewed his legal papers, including his attorneyclient communications, pending lawsuits, Article 78 petitions and exhibits, and his personal mail.
Elsewhere in the Amended Complaint, he asserts that some of his transcripts were torn in half
and thrown in the toilet.
However, the pleadings are again devoid of factual allegations
establishing actual injury traceable to Defendants’ alleged conduct. See e.g., Therrien v. Martin,
No. 3:07-CV-1285JCH, 2007 WL 3102181, at *2 (D. Conn. Oct. 19, 2007) (holding that prison
official confiscating and reading prisoner’s letter to an Assistant Attorney General failed to
demonstrate actual injury). Moreover, the limited First Amendment right to freedom from
censorship of inmate mail “is not equivalent to freedom from inspection or perusal. As to the
Sixth Amendment, its reach is only to protect the attorney-client relationship from intrusion in
the criminal setting,” Wolff v. McDonnell, 418 U.S. 539, 576 (1974), which is not the case here.
The Court finds that because Plaintiff has not alleged actual injury with respect the
alleged law library restrictions and tampering of his legal papers, his access to the courts
allegations fail to state a claim.
As a related matter, Plaintiff also challenges the cell search that was executed by
Defendants for the alleged purpose of reading and/or tampering with his legal documents and
mail. However, it is well established that inmates have no constitutionally protected right of
privacy in their cells. See Hudson v. Palmer, 468 U.S. 517, 527 (1984); Gadson v. Goord, No.
96 CIV. 7544 (SS), 1997 WL 714878, at *7 (S.D.N.Y. Nov. 17, 1997) (“the Supreme Court has
held that searches of cells implicate no protected constitutional rights, even if the search is
arbitrary or retaliatory in nature”); Payne v. Axelrod, 871 F. Supp. 1551, 1556 (N.D.N.Y. 1995)
(holding that arbitrary prison cell searches are permissible). Consequently, Plaintiff’s cell search
claim is dismissed, as is his related retaliation claim, which states no causal connection between
protected speech and the alleged adverse action.
Property Damage, False Records, and Keeplock
The Court finds that Plaintiff’s property damage, altered educational records, and
keeplock sanction allegations do not state valid claims under section 1983.
With respect to personal property damage, Plaintiff alleges that his television and radio
set was deliberately damaged by Defendant Hall. However, “[t]he Second Circuit has held that
New York provides an adequate post-deprivation remedy in the Court of Claims with respect to
property claims by prison inmates.” Brooks v. Chappius, 450 F. Supp. 2d 220, 226–27
(W.D.N.Y. 2006) (citing Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996) and Love v. Coughlin,
714 F.2d 207, 209 (2d Cir. 1983)). This claim is therefore dismissed.
With respect to Plaintiff’s claim that false information was added to his educational
records, he alleges that Defendants Parish and Bills falsely noted that Plaintiff had refused a
mandatory education program. To sustain a claim for false records, a plaintiff must establish: (1)
the existence of false information regarding his prior criminal or disciplinary history; (2) a
probability that the information will be relied on in a constitutionally significant manner; and (3)
that, as a jurisdictional predicate, he requested that the false information be expunged, but prison
officials declined to do so. See Foster v. New York City Prob. Dep't, No. 11-CV-4732 KAM
JMA, 2013 WL 1342259, at *4 (E.D.N.Y. Mar. 7, 2013), report and recommendation adopted,
No. 11-CV-4732 KAM JMA, 2013 WL 1305775 (E.D.N.Y. Mar. 30, 2013) (citing Paine v.
Baker, 595 F.2d 197, 201 (4th Cir. 1979) and Antonucci v. David, No. 9:03CV653(FJS/DEP),
2006 WL 2265028, at *4 (N.D.N.Y. Aug. 7, 2006)). Although Plaintiff alleges that his records
falsely stated that he “signed out of school,” he acknowledges that once he reported the false
information to “his ORC K. Altman” on December 4, 2015, “she immediately corrected [it] and
placed him back in school on December 8, 2015.” ECF No. 48 at 35. Consequently, this claim
To the extent that the Amended Complaint repeatedly alleges that keeplock sanctions
violated Plaintiff’s constitutional rights, he must first demonstrated that he possessed a protected
liberty or property interest and that he was deprived of that interest without due process. See
Bedoya v. Coughlin, 91 F.3d 349, 351-52 (2d Cir. 1996); Frazier v. Coughlin, 81 F.3d 313, 316
(2d Cir. 1996). In order to establish the existence of a protected liberty interest, plaintiff must (1)
“establish that the confinement or restraint complained of creates an ‘atypical and significant
hardship . . . in relation to the ordinary incidents of prison life;’” Cruz v. Gomez, 202 F.3d 593,
597 (2d Cir. 2000) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)), and (2) establish that
“the state has granted its inmates, by regulation or by statute, a protected liberty interest in
remaining free from that confinement or restraint.” Frazier, 81 F.3d at 317
Here, Plaintiff has failed to demonstrate that the conditions under which he was held in
keeplock were atypical or differed dramatically from the basic conditions of his incarceration,
and therefore he has failed to state a due process claim. See Garcia v. Miller, 201 F.3d 431 (2d
Cir. 1999) (no liberty interest established where plaintiff received seven-day and thirty-day terms
of keeplock); Sullivan v. Schweikhard, 968 F.Supp. 910, 913 (S.D.N.Y. 1997) (no protected
liberty interest found where plaintiff was confined to keeplock for nine days).
Sexual Assault and Excessive Force
The Court construes the Amended Complaint as alleging an Eighth Amendment
excessive force violation based on Plaintiff’s allegations of sexual abuse by Defendant Cady.
The standard for determining whether a prison official has violated the Eighth Amendment by
using excessive physical force was clarified by the United States Supreme Court in Hudson v.
McMillian, 503 U.S. 1 (1992). Under Hudson, “the core judicial inquiry is . . . whether force
was applied in a good-faith effort to maintain or restore discipline, or maliciously and
sadistically to cause harm.” Id., 503 U.S. at 7 (citing Whitley v. Albers, 475 U.S. 312, 321,
(1986)). To assess an Eighth Amendment claim, the Court must consider both the subjective and
the objective components of the alleged violations. Davidson v. Flynn, 32 F.3d 27, 29 (2d Cir.
1994). The objective component considers the “seriousness of the injury.” Id. The Eighth
Amendment “excludes from constitutional recognition de minimis uses of physical force,
provided that the use of force is not of a sort repugnant to the conscience of mankind.” Hudson,
503 U.S. at 9-10.
As a result of the alleged assault here, Plaintiff states that he endured significant pain,
discomfort, and the presence of blood in his urine, despite the lack of injury noted by a prison
The Court disagrees with Defendants’ characterization of the amended
pleadings as alleging a non-actionable pat frisk and finds that the factual allegations against
Defendant Cady, as described further above, are sufficient to state an Eighth Amendment
violation claim. “A corrections officer’s intentional contact with an inmate’s genitalia or other
intimate area, which serves no penological purpose and is undertaken with the intent to . . .
humiliate the inmate, violates the Eighth Amendment.” Crawford v. Cuomo, 796 F.3d 252, 257
(2d Cir. 2015).
To the extent that Plaintiff has asserted this claim against eleven additional Defendants, it
is well settled that a prerequisite for liability under § 1983 is personal involvement by the
defendants accused of the constitutional deprivation. See Sealey v. Giltner, 116 F.3d 47, 51 (2d
Cir. 1997). Such involvement on the part of a supervisory official may be shown in one of
(1) actual direct participation in the constitutional violation, (2) failure to remedy
a wrong after being informed through a report or appeal, (3) creation of a policy
or custom that sanctioned conduct amounting to a constitutional violation, or
allowing such a policy or custom to continue, (4) grossly negligent supervision of
subordinates who committed a violation, or (5) failure to act on information
indicating that unconstitutional acts were occurring.
Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003) (citing Colon v. Coughlin, 58 F.3d 865,
873 (2d Cir. 1995)). “[M]ere linkage in the prison chain of command is insufficient to implicate
a state commissioner of corrections or a prison superintendent in a § 1983 claim.” Richardson,
347 F.3d at 435; see also Keitt v. N.Y. City, 882 F. Supp. 2d 412, 444 (S.D.N.Y. 2011) (holding
that “the fact that an official holds a supervisory position is, standing alone, insufficient to
establish that official's liability for the acts of his subordinates”). The Court finds that the
amended pleadings fail to allege the personal involvement of any of the named Defendants apart
from Cady. Consequently, this claim will be permitted to go forward as to Defendant Cady only.
Deliberate Indifference to Dental Condition
Finally, Plaintiff’s fourth cause of action against his prison dentist, Defendant Mewar,
appears to bring allegations that are supplemental to his claims against Mewar in Plaintiff’s prior
related action, Case No. 13-CV-6594. Plaintiff alleges the same facts underlying his deliberate
indifference claim in both cases and merely adds new factual allegations in the present action,
including complaints that Defendant Mewar failed to recommend an oral surgeon to perform a
necessary tooth extraction. Inasmuch as this claim is based on the same set of facts and
circumstances and appears to be relevant to the allegations against Defendant Mewar in the prior
action, the Court will construe the new allegations as a motion by Plaintiff to amend the
complaint in Case No. 13-CV-6594. Plaintiff’s motion to amend is granted, these facts shall be
read in conjunction with his Complaint in Case No. 13-CV-6594, and Defendant Mewar is
terminated as a Defendant in this action.
Plaintiff has filed a Motion for a Preliminary Injunction in which he seeks a single-bed
cell, separation from all named Defendants so he can reenroll in school, a prohibition on planting
contraband and filing false charges against Plaintiff, medical and dental treatment from nonnamed Defendants, properly cooked, hot food with milk, and the assignment of an unbiased
inmate liaison and grievance representative. He is also seeking an immediate transfer out of the
Five Points Correctional Facility.
It is well established that “[a] party seeking a preliminary injunction must demonstrate
‘(1) irreparable harm should the injunction not be granted, and (2) either (a) a likelihood of
success on the merits, or (b) sufficiently serious questions going to the merits and a balance of
hardships tipping decidedly toward the party seeking injunctive relief.’” N.A.A.C.P., Inc. v.
Town of East Haven, 70 F.3d 219, 223 (2nd Cir. 1995) (quoting Resolution Trust Corp. v.
Elman, 949 F.2d 624, 626 (2d Cir. 1991)); PSC, Inc. v. Reiss, 111 F.Supp.2d 252, 254
(W.D.N.Y. 2000). The Court finds that Plaintiff’s Motion fails to demonstrate irreparable harm.
All of the allegations in the Motion refer to prior acts, if any, not continuing constitutional
deprivations, and moreover, are unrelated to Plaintiff’s specific requests for injunctive relief or
surviving claims in this lawsuit
Plaintiff Motion f a Prelim
ction is ther
The Court ha reviewed the Amended Complaint (ECF No. 4 pursuant to the 28 U
§ 1915A criteria, and finds that the retaliatio sexual ab
abuse, and ex
xcessive forc claims ag
Defendan Cady are sufficient to go forwar
rd. Plaintiff deliberat indifferen claim ag
Defendan Mewar is construed as a motion to amend th complaint in Houston v. Sheahan No.
13-CV-6594-FPG, to supplemen his factual allegations against that Defendant only, that m
is granted and Defen
ndant Mewa is dismisse from this action. Pla
maining claim are
dismissed in their entirety and the remai
ndants are d
from this ac
Plaintiff’s Motion for Preliminar Injunction (ECF No. 6 is denied
IT IS SO ORD
Augus 29, 2017
ester, New York
HON. FRAN P. GER
United State District C
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