Opinion
5:22-cv-216 (GTS/TWD)
04-13-2022
SAYVION D. BLOUNT, Plaintiff, v. APPLES, et al., Defendants.
SAYVION D. BLOUNT Plaintiff, pro se 11001632
SAYVION D. BLOUNT
Plaintiff, pro se 11001632
ORDER AND REPORT-RECOMMENDATION
THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
Sayvion D. Blount (“Plaintiff”) initiated this action pro se on March 7, 2022, asserting claims under 42 U.S.C. § 1983 against individuals employed by the Syracuse Police Department (“SPD”), the Onondaga County Sheriff's Office, and the Onondaga County Justice Center (the “Justice Center”). (Dkt. No. 1.) On March 9, 2022, Chief Judge Glenn T. Suddaby denied Plaintiff's in forma pauperis (“IFP”) application as incomplete, ordered the administrative closure of the matter, and permitted Plaintiff to reopen the matter by timely filing a complete IFP application. (Dkt. No. 4.) Plaintiff timely filed a complete IFP application, and the case was reopened. (Dkt. Nos. 5, 6.) The Clerk sent Plaintiff's IFP application and Complaint to the undersigned for initial review. Plaintiff's IFP application is hereby GRANTED. (Dkt. No. 5.) The undersigned now considers the sufficiency of the allegations set forth in the Complaint under 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A.
The following recitation of facts is drawn from the Complaint, which the Court accepts as true for purposes of initial review. See, e.g., LaTouche v. Rockland County, No. 22-CV-1437 (LTS), 2022 WL 953111, at *1 (S.D.N.Y. Mar. 29, 2022); Walker v. City of New York, No. 20-CV-5240 (PKC) (LB), 2021 WL 1838277, at *1 n.1 (E.D.N.Y. May 7, 2021).
Plaintiff advances several causes of action against SPD officers, Sheriff's Office employees, and Justice Center employees (collectively “Defendants”). (Dkt. No. 1.) Through his first cause of action, Plaintiff claims SPD Officers Voggel and Linnertz used excessive force during his arrest. See id. at 5-7, 18, 20. Around 1:52 p.m. on December 6, 2021, Officers Voggel and Linnertz arrested Plaintiff on Holland Street in Syracuse, New York. Id. at 6. Plaintiff claims he was on the ground, not resisting, and “in a position to be handcuffed” when the officers unnecessarily dragged him into nearby mud where Officer Linnertz kicked his abdomen and torso. Id. at 6-7. As they dragged Plaintiff through the mud, Officer Voggel pulled, twisted, and forcefully yanked his arms. Id. Plaintiff “nearly lost consciousness due the force of the kick and the pain, ” he “sustained injuries to [his] right shoulder, right arm, and right hand, ” and “received an injury to [his] abdomen/torso.” Id. Plaintiff suffered mental anguish, emotional distress, and costly damages to his clothes. Id. at 7.
Plaintiff named the following individuals in the caption of his pro se Complaint: Ettinger, SPD Officer; Linnertz, SPD Officer; Voggel, SPD Officer; Campaneo, Sheriff's Deputy; Sullivan, Sheriff's Deputy; Apples, Sheriff's Deputy; Daughton, Thomas Maloney, Justice Center Nurse; Sheriff's Deputy; K. Williams, Sheriff's Sergeant; Dober, Sheriff's Deputy; Guillaume, Sheriff's Captain; Lang, Sheriff's Lieutenant; Passino, Sheriff's Deputy; McDonald, Sheriff's Deputy; Robert Taylor, Justice Center Nurse; Anne Marie Parker, Justice Center Physician Assistant; Peterson, Sheriff's Sergeant (collectively “Defendants”). (Dkt. No. 1 at 1-4.) Parties not included in the caption are not parties to the action. See Fed.R.Civ.P. 10(a); see also Bloodywone v. Bellnier, No. 9:18-CV-0615 (GTS/DJS), 2018 WL 10550308, at 5 n.8 (N.D.N.Y. Oct. 17, 2018) (“A party not named in the caption of the complaint is not a party to the action.”) (collecting cases).
Through his second cause of action, Plaintiff claims Nurse Robert Taylor, Physician Assistant (“PA”) Marie Parker, and Nurse Thomas Maloney were deliberately indifferent to his medical needs. Id. at 5-9. Following his arrest, Plaintiff met with Nurse Taylor for intake at the Justice Center. Id. at 5. Plaintiff requested medical attention for his injuries, but Nurse Taylor denied his request. Id. at 5-6. Nurse Taylor told Plaintiff he would receive medical attention once he was transferred to a housing unit within the Justice Center, but that never came to pass. Id. at 6-7. Plaintiff was repeatedly denied adequate medical care for his shoulder injury. Id. at 7. Plaintiff requested additional medical care, but on December 30, 2021, PA Parker refused his request to see a medical doctor, opining his shoulder injury was not severe enough for further attention and would heal itself. Id. at 7-8. Following this rejection, Plaintiff requested an MRI to help diagnose his injuries on January 9, 2022. Id. at 8. On January 12, 2022, Nurse Maloney told Plaintiff his request had been rejected. Id. Plaintiff told Nurse Maloney he was in severe pain and “that the pain relievers [he] was receiving so far had been inadequate.” Id. Plaintiff was denied additional medical care and received no diagnosis for his shoulder injuries. Id. Plaintiff believes he suffered ligament damage, joint damage, and nerve damage. Id. at 9. Due to the injuries, he continues to experience numbness and tingling in his shoulder, arm, hand, and fingers. Id. Plaintiff has also experienced severe mental anguish and emotional distress. Id. at 8.
Through his third cause of action, Plaintiff claims Deputy Daughton failed to intervene and protect him when another inmate came into Plaintiff's cell and assaulted him. Id. at 8-9. On January 4, 2022, Deputy Daughton overheard inmate Stridiron threaten to physically beat Plaintiff. Id. at 9. When Deputy Daughton asked Plaintiff if he was okay, Plaintiff said “[n]o, you need to lock him in or something, I feel like he's going to try to do something to me.” Id. Deputy Daughton “laughed and waived his hand . . . stating, ‘who him, no, you['re] good Blount.'” Id. Minutes later, inmate Stridiron came into Plaintiff's cell and assaulted him. Id. In addition to his physical injuries, Plaintiff suffered severe mental anguish and emotional distress. Id.
Through his fourth cause of action, Plaintiff claims Deputies Campaneo and Sullivan failed to forward his Inmate Complaint Forms in violation of his First, Eighth, and Fourteenth Amendment rights. Id. at 9-10. On January 7, 2022, Plaintiff gave both Deputies a grievance. Id. at 9. Neither one of them forwarded his grievance to the appropriate authorities. Id. Plaintiff accordingly never received a response-his complaints went unresolved. Id. Plaintiff claims this was a violation of his First Amendment right to petition the government for redress of grievances, his Eighth and Fourteenth Amendment rights, and “a violation of the Onondaga County Sheriff's office policy and procedure, the New York Codes, Rules and Regulations, the New York State Constitution, and the New York Minimum Standards; Title 9, Subtitle AA; Chapter A; Subchapter A; Part 7032 Sections 1-12.” Id. at 10. Plaintiff claims these violations caused him severe mental anguish and emotional distress. Id.
Through his fifth cause of action, Plaintiff claims Deputies Apples and Daughton failed to forward his Inmate Complaint Forms in violation of his First, Eighth, and Fourteenth Amendment rights. Id. at 10. On January 17, 2022, Plaintiff gave both Deputies a grievance. Id. Neither one of them forwarded his grievance to the appropriate authorities. Id. Plaintiff accordingly never received a response-his complaints went unresolved. Id. On January 20, 2022, Plaintiff asked why he received no response and Deputy Apples said “you ain't getting shit Blount, I didn't give your complaint to the Sergeant.” Id. Both Deputies told Plaintiff nobody cared about his grievances. Id. at 11. Plaintiff therefore asked for a formal grievance form on January 20, 2022, but the Deputies refused. Id. Plaintiff claims this conduct violated his First Amendment right to petition the government for redress of grievances, his Eighth and Fourteenth Amendment rights, and “a violation of the NYS minimum standards section 7032; 1-12, the O.C.S.O. policy and procedure the NYCRR and the NYS Constitution.” Id. at 10. Plaintiff further avers that because the grievance concerned Deputy Daughton, the Deputy's refusal to forward his Inmate Complaint Form as required by policy and procedure constitutes retaliation under the First Amendment. Id. Plaintiff complains of severe mental anguish and emotional distress. Id.
Through his sixth cause of action, Plaintiff claims Deputy O'Connell and Sergeant Kenney violated his First, Eighth, and Fourteenth Amendment rights by refusing to accept a grievance form. Id. at 11. On January 20, 2022, Plaintiff submitted a grievance to Deputy O'Connell concerning the whereabouts of his grievances from January 17, 2022. Id. However, Sergeant Kenney refused to accept the grievance, indicating she would only accept a formal grievance. Id. Plaintiff never received a formal grievance form, so he was never able to submit a grievance concerning the whereabouts of his grievances from January 17, 2022. Id. Plaintiff claims this caused him severe mental anguish and emotional distress. Id.
Through his seventh cause of action, Plaintiff claims Sergeant Williams violated his First, Eighth, and Fourteenth Amendment rights by deliberately taking actions to prevent him from receiving a response to a formal grievance submitted on January 21, 2022. Id. at 12. On January 21, 2022, Plaintiff gave Deputy Passino a formal grievance concerning the whereabouts of his grievances from January 7th and 17th. Id. at 11-12. Deputy Passino followed procedure by submitting the grievance to Sergeant Williams. Id. at 12. Sergeant Williams “deliberately assigned a grievance [number] to the formal grievance form” that was the same grievance number assigned to another grievance form Plaintiff had submitted on January 20, 2022. Id. The grievance from January 21, 2022, was originally given a separate grievance number, but Sergeant Williams deliberately “crossed out” that number. Id. Plaintiff avers this made it appear as though his grievance from January 21, 2022, had been resolved. Id. Plaintiff claims Deputies Dober and Guilliame were complicit in this violation because “they both did not correct this error.” Id. at 13. Plaintiff claims this has caused severe mental anguish and emotional distress. Id. at 12.
Through his eighth cause of action, Plaintiff claims Deputy McDonald and Deputy Lieutenant Lang retaliated against him for submitting a grievance. Id. at 14-15. On February 2, 2022, Deputies McDonald and Sherwood did not let Plaintiff out of his cell during his scheduled recreation time because they wanted to let another inmate out, who was under a no-contact order with Plaintiff. Id. Plaintiff complained and Deputy McDonald let him out for his scheduled morning recreation time. Id. at 15. However, Deputy McDonald “fabricated a report that stated a reason as to why he had to cancel” Plaintiff's scheduled afternoon recreation time. Id. Plaintiff submitted a grievance concerning this report. Id. The following day, Deputy McDonald told Plaintiff “I got good news and I got bad news.” Id. The good news was Plaintiff's grievance had been received, but the bad news was that Plaintiff was placed under protective custody. Id. When Plaintiff asked why, Deputy McDonald responded, “you should stop making complaints, you complained about your rec, now you only get 2 hours out [of] your cell.” Id. Plaintiff asked for a formal explanation for this treatment but received none. Id. at 16. Plaintiff claims Deputy McDonald and Lieutenant Lang retaliated against him for submitting a grievance and placing him in protective custody against his will. Id. at 15-16. Plaintiff complains, “[t]his feels like torture, and is a violation of my 8th amendment rights due to the fact that this is unconstitutional confinement, cruel and unusual punishment, and denial of due process which is a violation of my 14th Amendment and excessive force all stemming from a retaliation for the exercise of first amendment right.” Id. at 16.
Through his ninth cause of action, Plaintiff claims Deputy McDonald and Sergeant Peterson failed to timely respond to a formal grievance. Id. at 17-18. On February 21, 2022, Plaintiff submitted a formal grievance to Deputy McDonald and Sergeant Peterson concerning Sergeant Williams' treatment of Plaintiff's grievance on January 21, 2022. Id. at 17. Both grievances have gone unanswered. Id. at 18. Plaintiff claims this violates his First, Eighth, and Fourteenth Amendment rights. Id. at 17-18.
In what appears to be his tenth and final cause of action, Plaintiff claims his court-appointed attorneys violated his Sixth and Fourteenth Amendment rights. Id. at 19. Plaintiff claims these attorneys “refused” to intervene to stop the grievance-related violations at the Justice Center. Id. Plaintiff further argues the attorneys refused to show him body-camera footage of his arrest on December 6, 2021. Id.
II. STANDARD OF REVIEW
This Court must conduct an initial review of complaints filed in forma pauperis, and “complaints in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915(e)(2)(B) (governing complaints filed in forma pauperis); 28 U.S.C. § 1915A (governing complaints filed by prisoners against the government). When reviewing these types of complaints, this Court must “identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint . . . is frivolous, malicious, or fails to state a claim upon which relief may be granted; or . . . seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A; 28 U.S.C. § 1915(e)(2)(B); see also Allen v. Stringer, No. 20-3953, 2021 WL 4472667, at *1 (2d Cir. Sept. 30, 2021) (applying Section 1915(e)(2)(B)); Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir. 1999) (applying Section 1915A).
Plaintiff is a “prisoner” as that term is used in 28 U.S.C. § 1915A(a). (See Dkt. No. 1 at 2; see also 28 U.S.C. § 1915A(c) (defining “prisoner” as “any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.”).)
Unless otherwise indicated, in quoting cases, all alterations, internal quotation marks, emphases, footnotes, and citations are omitted. See, e.g., Sczepanski v. Saul, 946 F.3d 152, 157 n.4 (2d Cir. 2020).
This Court must exercise caution when determining whether to sua sponte dismiss a pro se complaint on the grounds that it is frivolous. See Thomas v. Scully, 943 F.2d 259, 260 (2d Cir. 1991); Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983). “An action is frivolous when either: (1) the factual contentions are clearly baseless such as when the claims are the product of delusion or fantasy; or (2) the claim is based on an indisputably meritless legal theory.” Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). “A claim is based on an indisputably meritless legal theory when either the claim lacks an arguable basis in law, or a dispositive defense clearly exists on the face of the complaint.” Id.
When undertaking this initial review, the Court must construe pro se pleadings with the utmost leniency. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding that a pro se litigant's complaint is to be held “to less stringent standards than formal pleadings drafted by lawyers”); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). To survive dismissal for failure to state a claim, a complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2). This short and plain statement of the claim must be “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The statement of the claim must do more than present “an unadorned, the-defendant-harmed-me accusation.” Iqbal, 556 U.S. 662, 678. It must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. 544, 555; see also Fed.R.Civ.P. 8(a)(2).
In determining whether a complaint states a claim upon which relief may be granted, “the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
III. DISCUSSION
Plaintiff's claims fit into six categories: (A) excessive force, (B) deliberate indifference, (C) failure to intervene and protect, (D) failure to follow inmate grievance procedures, (E) retaliation, and (F) failure to provide adequate representation and due process of law. See generally id. The Court will address each category of claims, in turn.
A. Excessive Force
Plaintiff claims SPD Officers Voggel and Linnertz used unconstitutionally excessive force when arresting him on December 6, 2021. (Dkt. No. 1 at 5-7, 18, 20.) Plaintiff offers specific details about when and where the arrest occurred, how he conducted himself during the arrest, what each officer did to him, and the injuries he suffered. See id. Plaintiff alleges the unlawful conduct occurred during his arrest on a residential street in Syracuse, New York. See id.
Construing Plaintiff's pro se pleading liberally, Sealed Plaintiff, 537 F.3d at 191, the Court views Plaintiff's excessive force claim as one arising under the Fourth Amendment. See Graham v. Connor, 490 U.S. 386, 394 (1989) (“Where, as here, the excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment.”); see generally Young v. Cabrera, No. 18-CV-3028 (RPK) (ST), 2020 WL 7042759, at *4 (E.D.N.Y. Nov. 30, 2020) (dismissing plaintiff's Eighth and Fourteenth Amendment excessive force claims because “all claims that law enforcement officers have used excessive force in the course of an arrest are analyzed under the Fourth Amendment and its reasonableness standard, rather than the Eighth Amendment or the Fourteenth Amendment.”). Construing Plaintiff's allegations liberally and taking his factual allegations as true, the undersigned concludes Plaintiff Plaintiff's Fourth Amendment excessive force claim against SPD Officer Voggel and Linnertz survives initial review. See McClendon v. Cty. of Nassau, No. 11-CV-0190 (SJF) (ETB), 2012 WL 4849144, at *9 (E.D.N.Y. Oct. 11, 2012) (“Unnecessary blows inflicted while an arrestee is in handcuffs may be sufficient to sustain an excessive force claim.”) (collecting cases); see, e.g., Young, 2020 WL 7042759, at *7-9, 11 (concluding plaintiff's excessive force claim survived summary judgment where evidence indicated the officers “used excessive force in kicking and stomping Mr. Young before and after he was handcuffed.”); Johnson v. City of New York, No. 05 CIV. 2357 (SHS), 2006 WL 2354815, at *5 (S.D.N.Y. Aug. 14, 2006) (explaining an excessive force claim “would be actionable under the case law” against an officer who stomped or kicked “an individual already under police control”).
The undersigned accordingly recommends that the District Court conclude Plaintiff's excessive force claim against SPD Officers Voggel and Linnertz survives initial review under 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A and requires a response. In so recommending, the undersigned expresses no opinion regarding whether the claim could survive a properly filed motion to dismiss or motion for summary judgment.
B. Deliberate Indifference
Plaintiff claims Nurse Taylor, PA Parker, and Nurse Maloney were deliberately indifferent to his post-arrest medical needs. (Dkt. No. 1 at 5-9.) Plaintiff complains of severe pain that was not alleviated with Tylenol or ibuprofen. See id. at 8. He further avers he suffered ligament damage, joint damage, and nerve damage causing numbness and tingling in his shoulder, arm, hand, and fingers. Id. at 9. Despite his repeated requests for medical attention, Nurse Taylor, PA Parker, and Nurse Malone refused to offer him stronger pain medications, grant him access to a medical doctor, or examine his injuries with an MRI. Id. at 5-9.
Because Plaintiff was a pretrial detainee at the time of the events in question, the Court construes his medical deliberate indifference claim as one arising out of the Fourteenth Amendment. See id. at 2; compare Sims v. City of New York, 788 Fed.Appx. 62, 63 n.3 (2d Cir. 2019) (“Although Darnell involved a challenge to conditions of confinement, we have applied that decision's holding to medical deliberate-indifference claims.”), with Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017) (“A pretrial detainee's claims of unconstitutional conditions of confinement are governed by the Due Process Clause of the Fourteenth Amendment, rather than the Cruel and Unusual Punishments Clause of the Eight Amendment.”). In the Second Circuit, the Fourteenth Amendment standard for challenging confinement conditions is used to test a pretrial detainee's medical deliberate indifference claim. See, e.g., Yancey v. Robertson, 828 Fed.Appx. 801, 803 (2d Cir. 2020) (using the Fourteenth Amendment standard for challenging confinement conditions to a pretrial detainee's medical deliberate inference claim); Sims, 788 Fed.Appx. at 63 (same); Charles v. Orange Cty., 925 F.3d 73, 87 (2d Cir. 2019) (same).
This standard has two prongs, and claimants must satisfy both. Yancey, 828 Fed.Appx. at 803. First, the claimant must show a sufficiently serious medical need. Id. Second, the claimant must show the defendant acted with deliberate indifference to the medical need. Id.; see generally Charles, 925 F.3d at 87 (“Thus, a detainee asserting a Fourteenth Amendment claim for deliberate indifference to his medical needs can allege either that the defendants knew that failing to provide the complained of medical treatment would pose a substantial risk to his health or that the defendants should have known that failing to provide the omitted medical treatment would pose a substantial risk to the detainee's health.”).
Construing Plaintiff's pro se pleading liberally, Sealed Plaintiff, 537 F.3d at 191, the Court concludes his medical indifference claim against Nurse Taylor, PA Parker, and Nurse Maloney survives initial review. Plaintiff claims he experienced severe pain, complained about his severe pain to these individuals, was give inadequate medical treatment, and now experiences numbness and tingling from his shoulder to his fingers. (Dkt. No. 1. at 5-9.) The undersigned accordingly recommends the District Court conclude that Plaintiff's medical indifference claim against Nurse Taylor, PA Parker, and Nurse Maloney survives initial review under 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A and requires a response. In so recommending, the undersigned expresses no opinion regarding whether the claim could survive a properly filed motion to dismiss or motion for summary judgment.
C. Failure to Protect
“Prison officials have a duty to protect prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994). Although “not every injury that a prisoner suffers at the hands of another results in constitutional liability for the officials responsible for that prisoner's safety, ” “allowing an attack on an inmate to proceed without intervening is a constitutional violation in certain circumstances.” Taylor v. City of New York, No. 16-CIV-7857 (NRB), 2018 WL 1737626, at *11 (S.D.N.Y. Mar. 27, 2018); see also Leckie v. City of New York, No. 18-CV-3917 (RRM) (LB), 2021 WL 84234, at *5 (E.D.N.Y. Jan. 11, 2021).
When an officer acts with deliberate indifference to a substantial risk of serious harm to a pretrial detainee, a Fourteenth Amendment violation occurs. See Taylor, 2018 WL 1737626, at *11; see also Charles v. Rockland Cty. Off. of the Sheriff, No. 16 CV 166 (VB), 2019 WL 1299804, at *3 (S.D.N.Y. Mar. 21, 2019) (addressing failure to protect claims); Rosen v. City of New York, 667 F.Supp.2d 355, 359-60 (S.D.N.Y. 2009) (addressing failure to intervene claims). To prove such a violation occurred, pretrial detainees must satisfy “(1) an objective prong showing that the challenged conditions were sufficiently serious to constitute objective deprivations of the right to due process; and (2) a mens rea prong that shows that the officer acted with at least deliberate indifference to the challenged conditions.” House v. City of New York, No. 18-CIV-6693 (PAE) (KNF), 2020 WL 6891830, at *11 (S.D.N.Y. Nov. 24, 2020) (citing Darnell, 849 F.3d at 29); see also Taylor, 2018 WL 1737626, at *12 (“Although Darnell involved a Fourteenth Amendment challenge to a prisoner's conditions of confinement, its holding applies with equal measure to failure to protect claims.”).
Plaintiff was a pretrial detainee at the time of the events in question. (See Dkt. No. 1 at 2.) Reading his pro se pleading leniently, the Court construes his third cause of action as a failure to protect claim arising out of the Fourteenth Amendment. See Sealed Plaintiff, 537 F.3d at 191. Plaintiff alleges Deputy Daughton was aware that an inmate had threatened to attack him. (Dkt. No. 1 at 9.) He further alleges he asked Deputy Daughton for help, but Deputy Daughton refused to offer protection. Id. Minutes after that refusal, the inmate attacked Plaintiff. Id. These allegations appear to make out the fundamental elements of a Fourteenth Amendment failure to protect claim. See House, 2020 WL 6891830, at *11; Taylor, 2018 WL 1737626, at *11-12. The undersigned accordingly recommends that the District Court conclude Plaintiff's failure to protect claim against Deputy Daughton survives initial review under 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A and requires a response. In so recommending, the undersigned expresses no opinion regarding whether the claim could survive a properly filed motion to dismiss or motion for summary judgment.
D. Inmate Grievance Procedure Claims
Plaintiff claims Defendants violated his First, Eighth, and Fourteenth Amendment rights by failing to follow grievance procedures. (Dkt. No. 1 at 9-18.) He claims Deputies Campaneo and Sullivan failed to forward a grievance he filed on January 7, 2022 (the fourth cause of action), Deputies Apples and Daughton failed to forward a grievance he filed on January 17, 2022, and refused to give him another grievance form on January 20, 2022 (the fifth cause of action), Deputy O'Connell and Sergeant Kenny refused to accept a grievance he completed on January 20, 2022 (the sixth cause of action), Sergeant Williams and Deputies Dober and Guilliame prevented him from receiving a response to a grievance he filed on January 21, 2022 (the seventh cause of action), and Deputy McDonald and Sergeant Peterson failed to timely respond to a grievance filed on February 21, 2022 (the ninth cause of action). See id.
These alleged grievance procedure violations do not give rise to actionable claims under 42 U.S.C. § 1983. See Matthews v. Barq, No.9:18-CV-0855 (TJM) (CFH), 2019 WL 1025828, at *13 (N.D.N.Y. Mar. 4, 2019); Harris v. Westchester Cty. Dep't of Corr., No. 06-CIV-2011 (RJS), 2008 WL 953616, at *5 (S.D.N.Y. Apr. 3, 2008) (collecting cases); Cancel v. Goord, No. 00-CIV-2042 (LMM), 2001 WL 303713, at *3 (S.D.N.Y. Mar. 29, 2001). “[T]he Fourteenth Amendment does not provide a constitutionally protected right to file a grievance or receive process with respect to a filed grievance.” Williams v. City of New York, No. 19-CV-3347 (LJL) (JLC), 2022 WL 130409, at *21 (S.D.N.Y. Jan. 14, 2022), report and recommendation adopted, No. 19-CV-3347 (LJL), 2022 WL 446041 (S.D.N.Y. Feb. 14, 2022); see also Animashaun v. Fischer, No. 9:19-CV-0820 (LEK) (DJS), 2020 WL 374578, at *9 (N.D.N.Y. Jan. 23, 2020) (“As an initial matter, inmates do not have a constitutional right to state grievance programs”) (collecting cases). “Access to administrative remedies is therefore not a constitutionally-protected right, and a violation of prison grievance procedure is not a cognizable Section 1983 claim.” Williams, 2022 WL 130409, at *21 (citing George v. Cty. of Westchester, No. 20-CV-1723 (KMK), 2021 WL 4392485, at *4 (S.D.N.Y. Sept. 24, 2021) (collecting cases)). “Rather, in the event that prison officials ignore a grievance that raises constitutional claims, the proper avenue to seek relief is directly petitioning the government for redress of his claims.” Williams, 2022 WL 130409, at *21; Harris, 2008 WL 953616, at *5. Despite the alleged grievance procedure violations, Plaintiff has petitioned the government for redress in this Court by filing his Complaint. (See generally Dkt. No. 1.) Any claim that Plaintiff was denied his First Amendment right to petition the government for redress is “belied by the fact of his bringing this lawsuit.” Williams, 2022 WL 130409, at *21.
The alleged grievance procedure violations accordingly do not give rise to First or Fourteenth Amendment claims that could be brought under 42 U.S.C. §1983. See id. Moreover, Plaintiff has failed to make out a cognizable Eighth Amendment claim stemming from these alleged grievance procedure violations. (See generally Dkt. No. 1 at 9-18.) The undersigned therefore recommends that the District Court dismiss Plaintiff's grievance procedure claims against Deputy Campaneo, Deputy Sullivan, Deputy Apples, Deputy Daughton, Deputy O'Connell, Sergeant Kenny, Sergeant Williams, Deputy Dober, Deputy Guilliame, Deputy McDonald, and Sergeant Peterson. See, e.g., George, 2021 WL 4392485, at *4; Harris, 2008 WL 953616, at *5.
E. Retaliation Claims
Plaintiff advances two retaliation claims-one through his fifth cause of action, and one through his eighth cause of action. (See Dkt. No. 1 at 10, 14-16.) Through his fifth cause of action, Plaintiff claims Deputy Daughton retaliated against him by preventing him from filing a grievance after he had already filed a grievance about Deputy Daughton. Id. Through his eighth cause of action, Plaintiff claims Deputy McDonald and Lieutenant Lang retaliated against him by issuing a false report about him and placing him in protective custody on February 3, 2022, after Plaintiff had complained on February 2, 2022, and filed a grievance on February 3, 2022. Id. at 14-16.
“To prevail on a First Amendment retaliation claim under 42 U.S.C. § 1983, a prisoner must demonstrate: (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 conduct and the adverse action.” Vidal v. Valentin, No. 16-CV-5745 (CS), 2019 WL 3219442, at *6 (S.D.N.Y. July 17, 2019); see also Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003). A claimant meets the first element by demonstrating that he filed a grievance, which is a “constitutionally protected activity.” Davis, 320 F.3d at 352-53; see also Vidal, 2019 WL 3219442, at *6 (explaining it “is well supported by case law” that the submission of a grievance constitutes a protected activity) (collecting cases); Smith v. Hash, No. 904-CV-0074 (LEK) (DRH), 2006 WL 2806464, at *6 (N.D.N.Y. Sept. 28, 2006) (“Smith's filing of a grievance was clearly an assertion of a constitutional right protected by the First Amendment”). A claimant can meet the second element by demonstrating that he was subject to “retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising constitutional rights.” Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir. 2004); see also Williams, 2022 WL 130409, at *22. Finally, “[i]n considering whether a causal connection exists, a court may infer an improper or retaliatory motive in the adverse action from: (1) the temporal proximity of the filing to the grievance and the disciplinary action; (2) the inmate's prior good disciplinary record; (3) vindication at a hearing on the matter; and (4) statements by the defendant regarding his motive for disciplining the plaintiff.” Williams, 2022 WL 130409, at *24; see also Speaks v. Saeed, No. 14-CV-06826 (JMA) (AYS), 2022 WL 541767, at *8 (E.D.N.Y. Feb. 23, 2022).
Reading Plaintiff's pro se Complaint leniently, Sealed Plaintiff, 537 F.3d at 191, the undersigned concludes Plaintiff has alleged facts in support of both retaliation claims. (See Dkt. No. 1 at 10, 14-16.) First, he alleges he filed two grievances-one on January 17, 2022, and the other on February 3, 2022. See id. at 10, 15-16; see also Davis, 320 F.3d at 352-53. Second, Plaintiff alleges that after he filed each grievance, he suffered adverse actions. (Dkt. No. 1 at 10, 14-16.) After he filed the grievance on January 17, 2022, Plaintiff was prevented from filing further grievances-he was prevented from engaging in further constitutionally protected activity. See id. at 10; see generally Vidal, 2019 WL 3219442, at *6. Additionally, after he filed the grievance on February 3, 2022, Plaintiff was placed in protective custody against his will. (Dkt. No. 1 at 15-16; see, e.g., Vidal, 2019 WL 3219442, at *8 (“Confinement in the SHU is an adverse action.”); Smith, 2006 WL 2806464, at *6 (same).) Plaintiff further alleges that around the time he filed that grievance, Deputy McDonald created a false misbehavior report about him. (Dkt. No. 1 at 15; see, e.g., Speaks, 2022 WL 541767, at *8 (concluding “plaintiff's claim that he received a false disciplinary report resulting in his lock down for seventeen days constitutes adverse action”); Vidal, 2019 WL 3219442, at *8 (“Plaintiff is correct that a plaintiff's allegation that a defendant issued a false misbehavior report in response to the plaintiff's protected activity can support a claim of unlawful retaliation.”).) Third, Plaintiff advances allegations relevant to the causation inquiry. (See Dkt. No. 1 at 10, 14-16; see generally Williams, 2022 WL 130409, at *24.) The retaliatory actions came just after he filed grievances. (Dkt. No. 1 at 10, 14-16.) Furthermore, after Plaintiff submitted the grievance on January 17, 2022, Deputies Apples and Daughton told him nobody cared about his grievances, and Deputy Apples said “you ain't getting shit Blount, I didn't give your complaint to the Sergeant.” (Dkt. No. 1 at 10.) Plaintiff further claims that after he submitted the grievance on February 3, 2022, Deputy McDonald told him that he “should stop making complaints, you complained about your rec, now you only get 2 hours out [of] your cell.” Id. at 15. These factual allegations are relevant to two considerations under the causation inquiry: temporal proximity and relevant statements made by Defendants. Williams, 2022 WL 130409, at *24.
Based on the foregoing, the undersigned recommends that the District Court conclude Plaintiff's retaliation claims against Deputy Daughton, Deputy McDonald, and Lieutenant Lang survive initial review under 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A and require a response. In so recommending, the undersigned expresses no opinion regarding whether the claim could survive a properly filed motion to dismiss or motion for summary judgment.
F. Representation and Due Process
Plaintiff's tenth and final claim is frivolous and should be dismissed. See 28 U.S.C. § 1915(e)(2)(B)(i); 28 U.S.C. § 1915A(b)(1). Plaintiff claims his court-appointed attorneys violated his Sixth and Fourteenth Amendment rights by failing to sue to prevent numerous constitutional violations and by failing to disclose body-camera footage from his arrest on December 6, 2021. (Dkt. No. 1 at 19-20.) Plaintiff brought this civil action under 42 U.S.C. § 1983. Id. at 1. However, Plaintiff's court-appointed attorneys cannot be sued under Section 1983 because they are not state actors, and therefore did not act under color of state law. See Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981) (“[A] public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding.”); see also Tapp v. Champagne, 164 Fed.Appx. 106, 108 (2d Cir. 2006) (upholding initial review dismissal of Section 1983 claim against public defenders); see generally Hardy-Graham v. Southampton Just. Ct., No. 20-CV-0981 (JS) (SIL), 2021 WL 260102, at *7 (E.D.N.Y. Jan. 25, 2021) (dismissing Section 1983 claims against public defender on initial review) (collecting cases). The undersigned accordingly recommends that the District Court dismiss this claim. See, e.g., Johnson v. Bieling, No. 5:20-CV-1124 (GTS) (ML), 2021 WL 1841470, at *12 (N.D.N.Y. Jan. 6, 2021), report and recommendation adopted, No. 5:20-CV-1124 (GTS) (ML), 2021 WL 1840591 (N.D.N.Y. May 7, 2021).
III. CONCLUSION
For the foregoing reasons, the undersigned recommends the District Court conclude the following claims survive sue sponte review: (i) the first cause of action, claiming a Fourth Amendment excessive force violation by Syracuse Police Department Officers Voggel and Linnertz; (ii) the second cause of action, claiming a Fourteenth Amendment medical indifference violation by Nurse Taylor, PA Parker, and Nurse Maloney; (iii) the third cause of action, claiming a Fourteenth Amendment failure to protect violation by Deputy Daughton; (iv) the fifth cause of action, claiming a First Amendment retaliation violation by Deputy Daughton; and (v) the eighth cause of action, claiming a First Amendment retaliation violation by Deputy McDonald and Lieutenant Lang. See generally 28 U.S.C. § 1915(e)(2)(b); 28 U.S.C. § 1915A(b).
The undersigned further recommends the District Court dismiss all remaining claims against all other Defendants. See id. This would result in the dismissal of Plaintiff's grievance procedure claims against Deputy Campaneo, Deputy Sullivan, Deputy Apples, Deputy Daughton, Deputy O'Connell, Sergeant Kenney, Sergeant Williams, Deputy Dober, Deputy Guilliame, Deputy McDonald, and Sergeant Peterson. This would also result in the dismissal of Plaintiff's Sixth and Fourteenth Amendment claims against his court-appointed attorneys: Jordan McQuillan, Keith Young, Lawrence Sunser, and Sarah Hansen.
WHEREFORE, based on the above, it is hereby
ORDERED that Plaintiff's IFP Application (Dkt. No. 5) is GRANTED; and it is further RECOMMENDED that Plaintiff's Fourth Amendment excessive force claim against
Plaintiff should note that although his IFP Application has been granted, he will still be required to pay fees that he may incur in this action, including copying and/or witness fees.
Defendants Voggel and Linnertz survive sua sponte review; and it is further
RECOMMENDED that Plaintiff's Fourteenth Amendment medical indifference claim against Defendants Taylor, Parker, and Maloney survive sua sponte review; and it is further
RECOMMENDED that Plaintiff's Fourteenth Amendment failure to protect claim against Defendant Daughton survive sua sponte review; and it is further
RECOMMENDED that Plaintiff's First Amendment retaliation claim against Defendant Daughton survive sua sponte review; and it is further
RECOMMENDED that Plaintiff's First Amendment retaliation claim against Defendants by McDonald and Lang survive sua sponte review; and it is further
RECOMMENDED that pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b), Plaintiff's grievance procedure claims be DISMISSED as against Defendants Campaneo, Sullivan, Apples, Daughton, O'Connell, Kenney, Williams, Dober, Guilliame, McDonald, and Peterson; and it is further
RECOMMENDED that pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b), Plaintiff's Sixth and Fourteenth Amendment claims be DISMISSED as against Defendants McQuillan, Young, Sunser, and Hansen; and it is further
RECOMMENDED that if the District Court adopts this Report-Recommendation, the Clerk be directed to: (1) provide the superintendent of the facility that Plaintiff designated as his current location with a copy of Plaintiff's inmate authorization form (Dkt. No. 3) and notify that official that this action has been filed and that Plaintiff is required to pay the entire statutory filing fee of $350.00 pursuant to 28 U.S.C. § 1915 through periodic withdrawals from his inmate accounts; (2) provide a copy of Plaintiff's authorization form (Dkt. No. 3) to the Financial Deputy of the Clerk's Office; and (3) issue summonses and forward them, along with a copy of the Complaint (Dkt. No. 1), to the United States Marshal for service upon Defendants Voggel, Linnertz, Taylor, Parker, Maloney, Daughton, McDonald, and Lang; and it is further
RECOMMENDED that Defendants Voggel, Linnertz, Taylor, Parker, Maloney, Daughton, McDonald, and Lang be ORDERED to file a formal response to Plaintiff's Complaint (Dkt. No. 1) as provided for in the Federal Rules of Civil Procedure subsequent to service of process; and it is further
ORDERED that all pleadings, motions, and other documents relating to this action must bear the case number assigned to this action and be filed with the Clerk of the United States District Court, Northern District of New York, 7th Floor, Federal Building, 100 S. Clinton St., Syracuse, New York 13261-7367. Any paper sent by a party to the Court or the Clerk must be accompanied by a certificate showing that a true and correct copy of same was served on all opposing parties or their counsel. Any document received by the Clerk or the Court which does not include a proper certificate of service will be stricken from the docket. Plaintiff must comply with all requests by the Clerk's Office for any documents that are necessary to maintain this action. All parties must comply with Local Rule 7.1 of the Northern District of New York in filing motions. Plaintiff is also required to promptly notify the Clerk's Office and all parties or their counsel, in writing, of any change in his address; his failure to do so will result in the dismissal of this action; and it is further
ORDERED that the Clerk serve a copy of this Order and Report-Recommendation on Plaintiff, along with a copy of the unpublished decisions cited herein in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a).
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(C).