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dismissing due process claim based on false misbehavior report where the plaintiff "does not suggest anything 'more' so as to implicate the violation of a constitutional right"
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07 Civ. 11096 (BSJ) (KNF).
January 15, 2009
MEMORANDUM and ORDER
INTRODUCTION
Ronnie Cole ("Cole"), proceeding pro se, commenced this action, pursuant to 42 U.S.C. § 1983, alleging Commissioner Brian Fischer, Superintendent Robert Ercole, Lieutenant Kevin LaPorto ("LaPorto"), Sergeant P. Trowbridge ("Trowbridge"), Correction Officer G. Lehoyski ("Lehoyski"), Correction Officer John D. Halicki ("Halicki"), Director Donald Selsky ("Selsky") and the "New York State Department of Correctional Services etc., al.," (collectively "the defendants") violated his First, Eighth, and Fourteenth Amendment rights under the United States Constitution by: (1) filing false misbehavior reports against him; (2) failing to adhere to prison rules and regulations; (3) discriminating against him, based upon his race, religious beliefs and disability; and (4) implementing cruel and unusual punishment. Cole, who has paid the requisite filing fee, requests that the Court appoint counsel to assist him in prosecuting this action. In support, Cole maintains he requires the assistance of an attorney because: (a) his complaint presents several different factual and legal claims; (b) he will likely require expert testimony to establish his claims; (c) there will be conflicting accounts of the incidents in question; and (d) he has little education and has limited access to legal materials. The plaintiff does not discuss any attempts made to secure counsel outside of this motion. His application is addressed below.
BACKGROUND
In his amended complaint, Cole alleges that, in November 2005, he was housed at the Green Haven Correctional Facility ("GHCF"). To assist his mobility, Cole uses a wheelchair, leg braces, a cane and a back brace; Cole also uses hearing aids and wears "adult diapers." On November 9, 2005, Lehoyski ordered Cole to "undress from head to waist." The plaintiff complied with this order. Lehoyski asked if Cole "kn[e]w what this is about," and the plaintiff did not respond. Cole alleges Lehoyski assumed an "abusive manner," informed Cole that he would "show [Cole] how we do things at [GHCF]," and "became physically abusive hitting plaintiff in the face and stat[]ing nigger I will kill you, I hate Muslim[s]." Cole maintained he was then escorted to the GHCF hospital, was taken to an emergency examination room, [and] was ordered to "strip [from] the waist down." The plaintiff alleges Lehoyski "made joke[s] . . . about [the] plaintiff wearing an adult . . . diap[]er," and, as Cole began to remove his diaper, "Lehoyski pull[ed] an item from his front right pocket saying look what I found." Thereafter, Cole was taken to the Special Housing Unit, where he was separated from his wheelchair, leg braces, walking cane, and back brace, and was not given a clean diaper, despite his need for one.
On November 19, 2005, Cole learned of three Tier III misbehavior reports written against him for: (1) possessing drugs, written by Lehoyski; (2) creating a disturbance and refusing to comply with a direct order, written by Correction Officer T. Powers; and (3) refusing to comply with a direct order, written by Halicki. The plaintiff alleges the misbehavior reports were false. In addition, Cole argues that prison rules and regulations were not followed by: (1) Halicki, as he failed to follow "Policy Procedure Per Directive 4937 Urinalysis Testing section IV"; (2) LaPorto, who presided at Cole's disciplinary proceeding, and violated the "[D]epartment of Correctional Services Employee Rules and Conduct Manu[a]l[]," by considering false testimony proffered by corrections officers; and (3) Trowbridge, as he failed to endorse the "Report of Strip Frisk or Strip Search in direct[] violation of Departmental Directive 4910."
In the course of the disciplinary proceedings, the plaintiff learned that Lehoyski received a tip from a confidential informant, which gave Lehoyski probable cause to frisk the plaintiff. The plaintiff was found guilty of the conduct alleged in the misbehavior reports and was penalized with the loss of various privileges for as long as 36 months.
The plaintiff filed an administrative appeal from the disciplinary proceedings determination, which was reviewed by Selsky, and resulted in the reduction of the plaintiff's punishment to a loss of privileges for 12 months. The plaintiff also filed a petition, in a state court, in accordance with New York Civil Practice Law and Rules Article 78, alleging the search performed by Lehoyski was invalid, because Lehoyski did not have a signed authorization to conduct the search. The New York State Supreme Court, Albany County, found that sufficient paperwork existed to establish that a sergeant authorized the strip frisk based on confidential information, and the omission of the sergeant's signature on the actual strip search authorization form was a "technical" and harmless defect. Cole appealed from the denial of his Article 78 petition, and his appeal was denied by the New York State Supreme Court, Appellate Division, Third Department. See Mtr. of Cole v. Goord, 47 A.D.3d 1147, 850 N.Y.S.2d 687, 688 (App.Div. 3d Dep't 2008).
DISCUSSION
Unlike criminal defendants, prisoners, such as plaintiff, and indigents filing civil actions have no constitutional right to counsel. However, 28 U.S.C. § 1915(e)(1) provides that the Court may request an attorney to represent any person unable to afford counsel. The plaintiff has filed a sworn "affirmation" attesting that he is unable to afford counsel and is, therefore, within the class to whom 28 U.S.C. § 1915(e)(1) applies.
"In deciding whether to appoint counsel, [a] district [court] should first determine whether the indigent's position seems likely to be of substance." Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986), cert. denied, 502 U.S. 986, 112 S. Ct. 596 (1991). This means that it appears to the court "from the face of the pleading[s]," (see Stewart v. McMickens, 677 F. Supp. 226, 228 [S.D.N.Y. 1988]), that the claim(s) asserted by the plaintiff "may have [some] merit," (see Vargas v. City of New York, No. 97 Civ. 8426, 1999 U.S. Dist. LEXIS 10406, at *4-5; 1999 WL 486926, at *2 [S.D.N.Y. July 9, 1999]), or that the plaintiff "appears to have [some] chance of success. . . ." Hodge, 802 F.2d at 60-61. The pleadings drafted by a pro se litigant, such as Cole, are to be construed liberally and interpreted to raise the strongest arguments they suggest. See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
In order for the plaintiff to prevail on his Eighth Amendment excessive force claim, made pursuant to 42 U.S.C. § 1983, he must show that: (1) objectively, the deprivation alleged is sufficiently serious to reach constitutional dimensions; and (2) subjectively, the defendants must have acted with a "sufficiently culpable state of mind" associated with the "unnecessary and wanton infliction of pain." Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 1977 (1994); see Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993). Whether conduct is "wanton" depends on "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically for the very purpose of causing harm." Hudson v. McMillian, 503 U.S. 1, 6-7, 112 S. Ct. 995, 998-99 (1992) (citation and quotation omitted).
Looking solely to the face of the pleadings, the only allegation in the amended complaint that appears to support the plaintiff's Eighth Amendment excessive force claim is that Lehoyski struck Cole's face. However, "a de minimis use of force will rarely suffice to state a constitutional claim," Romano, 998 F.2d at 105 (citing Hudson, 503 U.S. at 9-10, 112 S. Ct. at 1000), and "`[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights.'" Id. (quoting Johnson v. Glick, 481 F.2d 1028, 1033 [2d Cir. 1973]). Since the plaintiff did not allege he suffered any injury from the use of force, nor are there allegations sufficient to demonstrate that the force used against him was excessive, the plaintiff's Eighth Amendment claim does not appear likely to be of merit. See Jennings v. Ciciarelli, No. 9:02-CV-1405, 2008 WL 2967530, at *2, 2008 U.S. Dist. LEXIS 58663, at *5, (N.D.N.Y. July 30, 2008) ("If an excessive force claim did not require any showing of harm, this would effectively eliminate the objective element from Eighth Amendment claims brought under this theory") (emphasis omitted).
With regard to Cole's claim that his Fourteenth Amendment rights were violated, because he was discriminated against based upon his race, religious beliefs and disability, the only facts described in Cole's complaint that appear to relate to this claim are that Lehoyski used a racial epithet, made a derogatory comment about Muslims and "made fun of" Cole for wearing a diaper. "The law is clear that verbal harassment or even threats alone are not actionable under 42 U.S.C. § 1983." Cotz v. Mastroeni, 476 F. Supp. 2d 332, 372 (S.D.N.Y. 2007) (discussing case law involving a corrections officer harassing an inmate by,inter alia, directing racial epithets at him, and finding that such an action did not rise to the level of a constitutional violation). Altogether, Cole's discrimination claims do not appear to amount to a constitutional violation.
To the extent Cole alleges, in his complaint, that his First and/or Fourteenth Amendment rights were violated by the filing of "false misbehavior reports," "a prison inmate has no general constitutional right to be free from being falsely accused in a misbehavior report." Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997). "There must be more, such as retaliation against the prisoner for exercising a constitutional right." Id. In Cole's amended complaint, though he alleges the misbehavior reports filed against him were false, Cole does not suggest anything "more" so as to implicate the violation of a constitutional right. Similarly, to the extent Cole maintains that any of the defendants violated his constitutional rights by failing to adhere to prison rules and regulations by virtue of giving, or admitting, false testimony at Cole's disciplinary proceedings, "a claim of false testimony by a correctional officer witness at a disciplinary hearing, in and of itself, does not state a cognizable claim that plaintiff's due process rights were violated." Porter v. Goord, No. 04-CV-0485F, 2004 WL 2271383, at *3 (W.D.N.Y. Oct. 5, 2004), see also Briscoe v. LaHue, 460 U.S. 325, 326-46, 103 S. Ct. 1108, 1110-21 (1983) (finding that the plaintiff's allegation that a police officer provided false testimony at a jury trial did not give rise to a § 1983 claim). At this juncture, Cole's "false misbehavior report" and "false testimony" claims do not appear likely to be of merit.
With regard to Cole's claim that Halicki failed to follow correctional facility rules on conducting a urinalysis, Cole does not explain how Halicki failed to follow urinalysis procedures, nor does he reveal the results of any urinalysis conducted by Halicki or explain how Halicki's actions prejudiced or subjected Cole to the loss of any rights, privileges or immunities secured by the laws or Constitution of the United States. See 42 U.S.C. § 1983. Thus, it is not clear how Halicki's conduct violated Cole's constitutional rights. Therefore, it does not appear that Cole's claim against Halicki warrants the appointment of counsel.
To the extent Cole argues Trowbridge failed to endorse the "Report of Strip Frisk or Strip Search in direct[] violation of Departmental Directive 4910," Cole raised this claim in his Article 78 proceeding; it was denied, and the denial was affirmed by the Appellate Division. See Mtr. of Cole, 47 A.D.3d at 1147, 850 N.Y.S.2d at 688.
"Under the Rooker-Feldman doctrine, inferior federal courts have no subject matter jurisdiction over suits that seek direct review of judgments of state courts, or that seek to resolve issues that are `inextricably intertwined' with earlier state court determinations." Vargas v. City of New York, 377 F.3d 200, 205 (2d Cir. 2004). "[I]nextricably intertwined means, at a minimum, that where a federal plaintiff had an opportunity to litigate a claim in a state proceeding . . ., subsequent litigation will be barred under the Rooker-Feldman doctrine if it would be barred under principles of preclusion." Id. (quotingPhifer v. City of New York, 289 F.3d 49, 55-56 (2d Cir. 2002) (internal quotations omitted). "Under New York law, issue preclusion occurs if `(1) the issue in question was actually and necessarily decided in a prior proceeding, and (2) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the first proceeding.'" Id. at 205-06 (quoting Colon v. Coughlin, 58 F.3d 865, 869 [2d Cir. 1995]). Applying these standards to the present case, Cole presented the issue of Trowbridge's failure to endorse the strip search paperwork in state court, via his Article 78 petition, and he appealed unsuccessfully, to the New York intermediate appellate court from the denial of his petition. This issue was "actually and necessarily decided" through the review conducted in the state courts; thus, Cole had a "full and fair opportunity to litigate the issue." Id. Therefore, Cole's claim against Trowbridge does not justify the appointment of counsel.
CONCLUSION
The Court is not persuaded, upon the face of the pleadings, that the claims asserted by Cole warrant the appointment of counsel. In addition, appointing counsel would not be appropriate since, in his request for appointed counsel, Cole does not suggest he made any attempt to secure an attorney. See Hodge, 802 F.2d at 61 ("[i]n our view, the language of [ 28 U.S.C. § 1915] requires that the [applicant] be unable to obtain counsel before appointment will even be considered"). Therefore, the plaintiff's request, that the Court appoint counsel to represent him, (Docket Entry No. 20), is denied.
SO ORDERED: