Opinion
01-CV-6276-CJS.
October 7, 2004
MEMORANDUM ORDER
Plaintiff filed this civil rights action on June 1, 2001, alleging violations of his rights under 42 U.S.C. §§ 1983 and 1988. In his first cause of action, plaintiff alleged that defendants "denied plaintiff his to [sic] medical confidentiality, and to be free from retaliatory discipline in violation of his First and Fourteenth Amendment [sic]," and in the second alleged that defendants "denied plaintiff his right to be free from cruel and unusual punishment in violation of his Eighth Amendment [sic]." Compl. at 9. The case is now before the Court on defendants' motion (# 39) seeking an order staying discovery and dismissing certain defendants and causes of action pursuant to Federal Rule of Civil Procedure 12(c). For the reasons stated below, the motion is granted in part, denied in part.
Magistrate Judge Feldman, to whom this case was referred for all nondispositive pretrial matters, has already addressed defendants' motion to stay discovery, thus, the Court will address only the motion to dismiss. First, the Court accepts Mr. Longo's explanation for the timing of the motion. See Longo Decl. (Jan. 28, 2004).
Defendants seek dismissal of the action as against defendants Buehler, Conway, Higley, Kelly, Roach and Schoellkopf and dismissal of all causes of action "except the one alleging that defendants Bennis, Mackiewicz, Johnson, Konfederath, and Wagner assaulted plaintiff on Jun[e] 1, 1998." Defs.' Mem. of Law at 1.
A motion under Rule 12(c) is treated as though it were a motion to dismiss. Davidson v. Flynn, 32 F.3d 27, 29 (2d Cir. 1994). The Court must read pro se complaints liberally and interpret them "to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). This is particularly important when a pro se litigant alleges a civil rights violation. See Haines v. Kerner, 404 U.S. 519, 520 (1972). In a complaint alleging conspiracy, a plaintiff "should make an effort to provide some `details of time and place and the alleged effect of the conspiracy.'" Spear v. Town of West Hartford, 954 F.2d 63, 68 (2d Cir. 1992) ( quoting 2A MOORE'S FEDERAL PRACTICE ¶ 8.17[6], at 8-109 to 8-110 (2d ed. 1992)). In considering a motion for dismissal under Rule 12, defendant must show that plaintiff can prove no set of facts in support of his claim that would entitle him to relief. See H.J. Inc. v. Northwest Bell Telephone Co., 492 U.S. 229, 249 (1989); see also 2 MOORE'S FEDERAL PRACTICE, § 12.34[1][a] (Matthew Bender 3d ed.).
Defendants first argue that plaintiff has failed to allege sufficient facts to support an inference there was a conspiracy. He supports his argument by quoting from Second Circuit case law:
Despite having issued a motion scheduling order on March 23, 2004 directing plaintiff to respond to defendants' motion by April 26, 2004, plaintiff has failed to file any responsive papers.
"A complaint containing only conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional rights cannot withstand a motion to dismiss." Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir. 1983) . . .; see also Leon v. Murphy, 988 F.2d 303, 311 (2d Cir. 1993). Such allegations do not state a claim for relief. Brown v. City of Oneonta, 106 F.3d 1125, 1133 (2d Cir. 1997). Plaintiff must allege sufficient facts in the complaint to support his claim that a conspiracy existed. Leon, supra, at 311.
Defs.' Mem. of Law at 3.
Plaintiff alleges in his complaint that Conway met with Roach, the hearing officer,
and obtain [sic] an agreement and tacit understanding that I would be systematicly [sic] found guilty of this assault charge and that preventive measure [sic] must be taken by hearing officer Roach to hinder any demonstration of falseness of charges in hearing record, in order to protect DOCS officials from civil liability and to conceal officer Bennis['] conduct of assault against me.
Compl. ¶ 24. Reading the pleading liberally, the Court finds that plaintiff has sufficiently alleged that Conway and Roach reached an agreement to violate plaintiff's civil rights. Although the issue remains as to whether plaintiff, when put to his proof, can sustain that allegation, as a matter of law, judgment on the pleadings is not warranted at this time.
Plaintiff also alleges that
upon becoming knowledgeable of my litigation against her, nurse Higley met with her comon [sic] law fiancée officer Konfederath, notified him of my litigation activities against her and some time in October of 1998 came to an agreement that they would retaliate against me.
Compl. ¶ 32. Once again, reading the pleading liberally, the Court finds that plaintiff has sufficiently alleged that Higley and Konfederath agreed to violate plaintiff's civil rights. Defendants cite to Second Circuit case law holding that, "a retaliation claim supported by specific and detailed factual allegations which amount to a persuasive case ought usually be pursued with full discovery. However, a complaint which alleges retaliation in wholly conclusory terms may safely be dismissed on the pleadings alone." Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir., 1983). In Flaherty, the Second Circuit found that "the prisoner ha[d] no factual basis for the claim other than an adverse administrative decision. . . ." Id. Here, in contrast, plaintiff has alleged that the two defendants met and agreed to violate his rights.
Defendants next argue that plaintiff's allegation that in May 1998, Bennis filed a false misbehavior report against him should be dismissed. See Compl. ¶ 9. A prisoner has no constitutional right against the filing of a false misbehavior report. Boddie v. Schneider, 105 F.3d 857, 862 (2d Cir. 1997); Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986). As the Second Circuit has held, "[t]here must be more, such as retaliation against the prisoner for exercising a constitutional right." Boddie, 105 F.3d at 862. Thus, to the extent that plaintiff's complaint can be read to assert a cause of action against Bennis for the May 1998 misbehavior report, that claim is dismissed.
Turning now to plaintiff's allegations that the disciplinary sentence he received as a result of Bennis' May 1998 misbehavior report violated his due process rights, it is well settled that,
[a] prisoner asserting that he was denied due process in connection with prison disciplinary hearings that resulted in segregative confinement or a loss of privileges must make a threshold showing that the deprivation of which he complains imposed an atypical and significant hardship on him in relation to the ordinary incidents of prison life.Amaral v. Greis, No. 00-CV-6299-CJS, 2001 U.S. Dist. LEXIS 21123, 5-6 (W.D.N.Y. Nov. 5, 2001) ( quoting Sims v. Artuz, 230 F.3d 14, 22 (2d Cir. 2000)) (citations and internal quotations omitted)). In Amaral, the court found that allegations by the prisoner that he was sentenced to 180 days of confinement in the Segregated Housing Unit ("SHU"), and 21 days of restricted diet, were insufficient to withstand a motion to dismiss on the ground that the plaintiff had failed to allege deprivation of a protected liberty interest. In the instant case, plaintiff's allegation that as a result of the allegedly false disciplinary report he was sentenced to "28 days of superintendent[']s restricted diet," is insufficient to state a cognizable due process claim.
Plaintiff's complaint also states that Bennis and Buehler threatened him on June 1, 1998. Compl. ¶¶ 13, 14. He claims that in the morning, Bennis threatened him by saying, "Why didn't you put down for exercise this morning[?] I'm going to kick your ass. I already obtain [sic] approval you will see." Compl. ¶ 13. Later in the day, plaintiff alleges that Buehler interviewed him in connection with a grievance plaintiff had filed against Bennis and stated to plaintiff, "what you need is a good ass kicking[,] Dawes[,] and you are going to get it." Compl. ¶ 14. Furthermore, plaintiff alleged in his complaint that Konfederath threatened him on October 15, 1998, by stating, "Dawes[,] you are causing a lot of problems around here with all your grievances[.] You are not going to get away with what you did to Barb." Compl. ¶ 33. Defendants argue that these allegations are insufficient to support a cause of action for a constitutional deprivation. The Court agrees. See Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986) ("The claim that a prison guard called [the plaintiff] names also did not allege any appreciable injury and was properly dismissed."); Malsh v. Austin, 901 F. Supp. 757, 763 (S.D.N.Y. 1995); Jermosen v. Coughlin, 878 F. Supp. 444, 449 (N.D.N.Y. 1995) ("Although indefensible and unprofessional, verbal threats or abuse are not sufficient to state a constitutional violation cognizable under § 1983."). Consequently, any causes of action for the threats alone are dismissed.
Defendants also move for dismissal of plaintiff's claim that disclosure of examination results by Higley to security staff "after he was beaten on June 1, 1998," Defs.' Mem. of Law at 8, violated his "right to confidentiality," and plaintiff's claim that Higley also falsified the medical records "to make them jibe with defendants' version of events." Id. As to the latter contention, the Court reads plaintiff's allegations in the complaint, ¶¶ 21-22, to support a claim that Higley conspired with Bennis and the other officers, involved in the June 1, 1998 use of force against plaintiff, to enable members of the security staff to tailor their reports to minimize or hide the existence of any unlawful use of force. Contrary to defendants' argument, the allegations in the complaint are factual and do state the information Higley purportedly omitted and the means by which the records were used to assist in the claimed conspiracy to violate plaintiff's civil rights in connection with the use of unlawful force. However, with regard to the former allegation of a privacy violation, the Court is persuaded that no constitutional deprivation is alleged. As the Sixth Circuit has held,
the Constitution does not encompass a general right to nondisclosure of private information." [ J.P. v. Desanti, 653 F.2d 108] at 1090. Although we acknowledged the significance of a right of privacy, we found that "inferring very broad `constitutional' rights where the Constitution itself does not express them is an activity not appropriate to the judiciary." Id. Only when "fundamental" rights are implicated does a privacy concern take on constitutional dimensions. Id. We recently demonstrated the continued viability of DeSanti by reiterating this position. Doe v. Wigginton, 21 F.3d 733, 740 (6th Cir. 1994) (holding that disclosure of HIV status does not violate constitutional right to privacy).Jarvis v. Wellman, 52 F.3d 125, 126 (6th Cir. 1995). Any claim to a constitutional privacy violation based on disclosure of the records is, therefore, dismissed.
Next, plaintiff's claim based upon his allegations that Bennis fabricated a misbehavior report on June 1, 1998, is dismissed. The Court reaches this decision for the same reasons discussed above in connection with the allegedly false misbehavior report in May 1998. However, the conspiracy claim based on the June 1, 1998 report and meeting alleged to have take place between Conway and Roach, however, does allege sufficient facts to withstand a motion to dismiss. Compl. ¶ 24.
Defendants further seek to dismiss plaintiff's claim relating to the policy prohibiting the video tape recording of disciplinary hearings. Compl. ¶ 30; Defs.' Mem. of Law at 9-10. Defendant has shown that with regard to these allegations as set forth in paragraphs 30 and 31 of the complaint, plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Therefore, any constitutional claim based on allegations of a video taping policy described in those paragraphs is dismissed.
Finally, plaintiff claims that Konfederath fabricated a misbehavior report on December 20, 1998 and that plaintiff was convicted and sentenced to 28 days of restricted diet as a result of that report. Complaint ¶¶ 39-41. As discussed above, these claims are not cognizable.
Accordingly, it is hereby
ORDERED, that respondent's motion (# 39) is granted in part, denied in part. Plaintiff's due process claims based on the following allegations are dismissed:
(1) that in May 1998, Bennis filed a false misbehavior report against plaintiff;
(2) the disciplinary sentence plaintiff received as a result of Bennis' May 1998 report (28 days restricted diet);
(3) that Bennis and Buehler threatened plaintiff on June 1, 1998;
(4) a privacy violation based on disclosure of plaintiff's medical records to security staff;
(5) that Bennis fabricated a misbehavior report on June 1, 1998;
(6) a video taping policy prohibiting the taping inside hearing rooms;
(7) that Konfederath fabricated a misbehavior report on December 20, 1998 and that plaintiff was convicted and sentenced to 28 days of restricted diet as a result of that report.
IT IS SO ORDERED.