Dash v. Conners et al

Filing 14

DECISION AND ORDER: The Amended Complaint 8 is dismissed with prejudice, and Plaintiff's 11 Motion for Service and 12 Motion to Appoint Counsel are denied as moot. The Court certifies that any appeal from this Order would not be taken in good faith, and leave to appeal in forma pauperis is denied. The Clerk of Court is directed to close this case. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 5/26/17. A copy of this Decision and Order have been mailed to the pro se Plaintiff. (SCE)-CLERK TO FOLLOW UP-

PS

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
RAMON A. DASH,
Plaintiff,
-vHEARING OFFICER L. CONNERS, and
CORRECTIONAL OFFICER M. RUSINEK,

15-CV-6706-FPG
DECISION AND ORDER

Defendants.
___________________________________
INTRODUCTION
Pro se Plaintiff Ramon Dash has filed an Amended Complaint (ECF No. 8), which the
Court now screens pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A. Plaintiff has also moved
for service and for the appointment of counsel. ECF Nos. 11, 12. Plaintiff alleges that his
constitutional rights were violated while he was confined at Attica Correctional Facility when
Defendants wrongfully disciplined him for possessing a weapon which was found in his cell after
a fight, as more clearly detailed in his Amended Complaint. For the reasons discussed below,
Plaintiff’s claims must be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A for
failure to state a claim upon which relief may be granted.
DISCUSSION
28 U.S.C. §§ 1915(e)(2)(B) and 1915A(a) require the Court to screen this Amended
Complaint. In evaluating the Amended Complaint, the Court must accept as true all of the
factual allegations and must draw all reasonable inferences in Plaintiff’s favor. See Larkin v.
Savage, 318 F.3d 138, 139 (2d Cir. 2003). While “a court is obliged to construe [pro se]
pleadings liberally, particularly when they allege civil rights violations,” McEachin v.
McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004), even pleadings submitted pro se must meet the

notice requirements of Rule 8 of the Federal Rules of Civil Procedure. Wynder v. McMahon,
360 F.3d 73 (2d Cir. 2004).
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. “To state a valid claim under 42
U.S.C. § 1983, the plaintiff must allege that the challenged conduct (1) was attributable to a
person acting under color of state law, and (2) deprived the plaintiff of a right, privilege, or
immunity secured by the Constitution or laws of the United States.” Whalen v. County of Fulton,
126 F.3d 400, 405 (2d. Cir. 1997). Based on its evaluation of the Amended Complaint, the Court
finds that Plaintiff’s claims must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and
1915A(b) because they fail to state a claim upon which relief may be granted.
I.

Procedural History
In his original Complaint (ECF No. 1), Plaintiff alleged that he was improperly punished

as a result of what he characterized as a false charge and a wrongful conviction at his prison
disciplinary hearing. Plaintiff stated that he had been moved to a cell at Attica Correctional
Facility where a weapon was found after he had been housed in that cell for twenty days.
Plaintiff denied knowing of or possessing the weapon. On January 7, 2014, after Plaintiff was
involved in a fight with another inmate, Defendant Rusinek conducted a search of Plaintiff’s cell,
revealing a weapon hidden inside a light fixture. ECF No. 1 at 3. Defendant Conners conducted
the resulting disciplinary hearing and, despite Plaintiff’s denials, he was found to have possessed
the weapon. At his disciplinary hearing, Plaintiff argued that the cell was never properly
inspected before Plaintiff moved in. Plaintiff was convicted, he appealed, and an administrative
appellate review reversed the result of the hearing. The finding was expunged from his record,
and his good time credits were restored. Plaintiff had served 120 days in the Special Housing
Unit when the administrative review overturned the result of the disciplinary hearing. Plaintiff
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stated that while he was in the Special Housing unit, he attempted suicide three times and is now
receiving mental health treatment.
By Decision and Order dated September 20, 2016 (ECF No. 7), Plaintiff was advised that
the allegations of his Complaint were insufficient in two respects. First, Plaintiff’s due process
claims based upon conclusory allegations of bias by the hearing officer were insufficient to state
a claim upon which relief may be granted. Second, Plaintiff was advised that his allegation that
Corrections Officer Rusinek reached the wrong conclusion regarding the weapon which was
concededly found in Plaintiff’s cell, and his allegation that hearing officer Connors reached the
wrong conclusion regarding Plaintiff’s possession of the weapon, also failed to establish a
constitutional violation which would sustain an action under § 1983. “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.” Freeman v. Rideout, 808 F.2d 949,
951 (2d Cir. 1986).
In that Order, Plaintiff was advised that, because his time in Special Housing Unit was
between 101 and 305 days, it was necessary for him to establish that his confinement was more
onerous than typical SHU conditions to create a liberty interest which would trigger due process
requirements. “A period of confinement under typical SHU conditions lasting longer than 305
days, for example, triggers a protected liberty interest, whereas a period of confinement lasting
between 101 and 305 days may trigger a protected liberty interest, depending on the specific
conditions of confinement.” Gonzalez v. Hasty, 802 F.3d 212, 223 (2d Cir. 2015). Plaintiff was
given the opportunity to amend his Complaint to show that he was denied due process at the
disciplinary hearing, and to allege that the conditions of his 120 days of SHU confinement were
more onerous that normal, such that they triggered a protected liberty interest.

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II.

The Amended Complaint
In his Amended Complaint, Plaintiff largely repeats his original allegations. He states

that he was falsely accused, and without a proper inspection prior to Plaintiff being placed in the
cell, the proof at the disciplinary hearing that the weapon was his was insufficient. Plaintiff
accuses Defendant Rucinek of writing a “false tier III misbehavior report,” but concedes that the
Defendant did find a weapon in Plaintiff’s cell. Again, he faults the Defendants for not carrying
out a proper inspection when Plaintiff was moved into that cell. ECF No. 8 at 3.
Similarly, Plaintiff continues to fault Defendant Connors because “Connors had refused
to listen to the Plaintiff’s version of the true facts”, and “wrongfully found the Plaintiff guilty.”
Id. at 4. Plaintiff objects that “the individual Defendants failed to take reasonable steps to find
out if in fact the Plaintiff’s cell was ever inspected” before charging him with possessing the
weapon found there. Id. at 6. Plaintiff alleges in conclusory fashion that Defendants acted
willfully and with the specific intent to deprive him of his constitutional rights. Id. Plaintiff
specifically faults Defendant Connors for telling Plaintiff that the cell inspection sheets, which
Plaintiff argued was missing from his hearing, were not in use at Attica. Id.
III.

Analysis
Plaintiff’s success on his administrative appeal indicates that the result of the hearing was

in error, but a mere error in evaluating the evidence does not present a constitutional violation.
The constitution guarantees that a prisoner will not be deprived of a cognizable liberty interest
without due process of law. See, e.g., Wolff v. McDonnell, 418 U.S. 539, 555 (1974). With
regard to the sufficiency of the proof or Plaintiff’s possession of the weapon, in Superintendent,
Massachusetts Correctional Institution v. Hill, 472 U.S. 445 (1985), the United States Supreme
Court held that where a prisoner who was found guilty after a hearing bases his due process

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claim on insufficient evidence, such a claim must be rejected if there was at least “some
evidence” to support the decision. 472 U.S. at 455. The Supreme Court explained that:
Ascertaining whether this standard is satisfied does not require
examination of the entire record, independent assessment of the
credibility of witnesses, or weighing of the evidence. Instead, the
relevant question is whether there is any evidence in the record
that could support the conclusion reached by the disciplinary
board.
Id. at 455-56) (emphasis added).
Because Plaintiff does not dispute that the weapon was found in the cell he had occupied
for twenty days, that minimal threshold is certainly satisfied here.
Therefore, the only constitutional claim under the Amended Complaint that could exist
would be if Plaintiff was not provided adequate due process during the disciplinary proceeding.
In such a case, the claim is not based on the truth or falsity of the testimony but instead on the
conduct of the hearing itself.

In this regard, Plaintiff claims in conclusory fashion that

Defendants intended to and did violate his constitutional rights. But a plaintiff’s conclusory
allegation of a constitutional violation, without more, fails to state a claim upon which relief may
be granted. See Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987); see also Brown v. City of
Oneonta, 106 F.3d 1125, 1133 (2d Cir. 1997) (complaints containing only conclusory, vague or
general allegations of a conspiracy to deprive a person of constitutional rights do not state a
claim for relief).
Here, Plaintiff faults Defendants for doing a poor job and for reaching mistaken
conclusions. Even assuming the truth of Plaintiff’s allegations, which the Court must at this
stage, Defendants were at most negligent, which does not establish a constitutional violation.
See generally Daniels v. Williams, 474 U.S. 327, 330-31 (1986) (mere negligence on the part of
state officials is not actionable under § 1983). Plaintiff’s conclusory allegations that Defendants
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intended to and did violate his constitutional rights are insufficient to present a due process
claim. Barr, 810 F.2d at 363.
Furthermore, to adequately plead a due process claim, a complaint must set forth
allegations of additional punishment sufficient to trigger the requirements of due process. Sandin
v. Conner, 515 U.S. 472, 486 (1995). New York State regulations do grant an inmate an interest
in remaining free from disciplinary confinement. However, to attach the protections of the Due
Process Clause to this interest, Sandin requires an evaluation of whether the conditions of
Plaintiff’s disciplinary confinement imposed an “atypical and significant hardship on the inmate
in relation to the ordinary incidents of prison life.” Id. at 484.
The Court’s prior Order specifically directed Plaintiff to amend his Complaint to describe
his conditions of his confinement so that they could be compared with the ordinary incidents of
imprisonment. See ECF No. 7 at 5-6. But despite this specific direction, Plaintiff’s Amended
Complaint fails to set forth the conditions of his confinement beyond the plain fact of spending
120 days in the Special Housing Unit and his reaction to being unjustly punished. Plaintiff
instead recites the hardships resulting from his distress at being sentenced to the Special Housing
Unit. Plaintiff’s attempts at suicide on three occasions were both serious and regrettable, but
they do not establish the nature of the conditions themselves. “Both the conditions and their
duration must be considered” Palmer, 364 F.3d at 64; see, e.g. Davis v. Barrett, 576 F.3d
129,134 (2d Cir. 2009) (finding sufficient the allegations that plaintiff was locked in a cell
twenty-four hours per day, that the cell lacked any furniture, the mattress was “infected” with
body waste, the cell flooded daily and plaintiff was subjected to feces and urine thrown by other
inmates). Here, any such allegations are lacking, and the Plaintiff’s Amended Complaint does
not pass muster.

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NCLUSION
N
CON
Plaintiff’s Am
mended Com
mplaint fails to address ei
ither of the d
deficiencies of his Comp
plaint
that were described in the Court prior Ord
e
t’s
der. Becaus the Amen
se
nded Compl
laint does no set
ot
forth alle
egations suff
fficient to es
stablish a violation of h due process rights at the discipl
his
t
linary
hearing, nor does Plaintiff set fo allegations regardin the condi
orth
ng
itions of his segregation that
s
n
could sat
tisfy Sandin, Plaintiff’s Amended Complaint fai to state a claim, and m therefo be
,
C
ils
must
ore
dismissed with prejudice.
d
ORDER
O
IT IS HEREB ORDERE that the Amended C
T
BY
ED,
e
Complaint (E
ECF No. 8) is dismissed with
d
prejudice for failure to state a cla upon wh relief m be grante
e
t
aim
hich
may
ed;
FURTHER, that Plaintiff motions for service a assignme of couns (ECF Nos. 11,
t
f’s
f
and
ent
sel
d
12) are denied as moot; and
FURTHER, that the Cou hereby ce
t
urt
ertifies, purs
suant to 28 U
U.S.C. § 191
15(a)(3), tha any
at
rom this Ord would not be taken in good fai and leav to appeal to the Cou of
der
n
n
ith,
ve
urt
appeal fr
Appeals as a poor person is den
nied. Copped v. Unite States, 36 U.S. 438 (1962). Fu
dge
ed
69
urther
requests to proceed on appeal as a poor pe
a
erson should be directe on motio to the U
d
ed,
on,
United
States Co of Appe for the Second Circuit, in accor
ourt
eals
S
rdance with Rule 24 of t Federal R
the
Rules
of Appellate Procedu
ure.
IT IS SO ORD
T
DERED.
DATED:
:

Roche
ester, New York
Y
May 26, 2017
2
__________
__________
___________
__________
_
HON. FRAN P. GER
ANK
RACI, JR.
Chief Judge
e
United State District C
es
Court

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