Opinion
No. 9:03-CV-1434 (S.J. McAvoy).
September 7, 2005
K. DEXTER MURRAY, Plaintiff pro se.
ELIOT SPITZER, Attorney General of the State of New York.
BRUCE J.BOIVIN, Asst. Attorney General.
REPORT-RECOMMENDATION
This matter has been referred to me for Report and Recommendation by the Honorable Thomas J. McAvoy, Senior United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c).
In this amended civil rights complaint, plaintiff alleges that between 1999 and 2003, he was subjected to various constitutional, federal law, state law, and state regulatory violations. (Dkt. No. 5). Plaintiff seeks declaratory as well as substantial monetary relief.
Presently before the court are two motions to dismiss the amended complaint for failure to state a claim pursuant to FED. R. CIV. P. 12(b)(6). (Dkt. Nos. 59, 61). The first motion to dismiss was submitted on behalf of twenty seven of the thirty three named defendants. (Dkt. No. 59). After the first motion to dismiss was filed, four more defendants were served, and these four new defendants also filed a motion to dismiss the complaint pursuant to FED. R. CIV. P. 12(b)(6). For the following reasons, this court agrees with most of defendants' arguments and will recommend dismissal of the complaint in part.
DISCUSSION
1. Motion to Dismiss
A court may not dismiss an action pursuant to Rule 12(b)(6) unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994) (citing inter alia Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The court must accept the material facts alleged in the complaint as true. Id. (citing Cooper v. Pate, 378 U.S. 546 (1964) (per curiam)).
In determining whether a complaint states a cause of action, great liberality is afforded to pro se litigants. Platsky v. Central Intelligence Agency, 953 F.2d 26, 28 (2d Cir. 1991) (citation omitted). For purposes of a Rule 12(b)(6) motion, the "complaint" includes any written instrument attached to the complaint and any statements or documents incorporated into it by reference. Gant v. Wallingford Bd. of Education, 69 F.3d 669, 674 (2d Cir. 1995) (citations omitted).
2. Facts and Procedural History
Plaintiff filed his original complaint in this action on December 3, 2003. (Dkt. No. 1). At that time, the case was assigned to the Honorable Lawrence E. Kahn. On December 16, 2003, Judge Kahn issued an order, finding that the original complaint did not comply with FED. R. CIV. P. 8 and 10. (Dkt. No. 4). Judge Kahn ordered plaintiff to submit an amended complaint, curing the defects in the original. Id. Plaintiff submitted his amended complaint for the court's review, and on February 3, 2004, the court accepted the amended complaint for filing and ordered service on defendants.
Initially, only twenty seven of the thirty three defendants were served. Defendant Brian Malone, former Inspector General for the Department of Correctional Services (DOCS) was not served because he was deceased. After defendants filed their first motion to dismiss, four more of the defendants were served, and thus, at this time, only one other defendant, K. Collyer, the Inmate Grievance Program Chairman at Great Meadow Correctional Facility (GMCF) has not been served. The four newly-served defendants then made a motion to dismiss. (Dkt. No. 61).
Although defendants' memorandum of law states that there were thirty seven defendants, counsel's list only contains thirty three names, and the caption of the amended complaint lists only thirty three names. Thus, "37" appears to be a typographical error.
Plaintiff's amended complaint is divided into seven sections, with various of the defendants and various claims listed within each section. The court will attempt to state the facts and the claims against each defendant as clearly as possible. Defense counsel has assisted the court greatly in his memoranda of law, where he lists each defendant, whether he or she has been served, and attempts to indicate which of plaintiff's claims apply to each defendant. See Dkt. No. 59, Defendants' Memorandum of Law at 2-7 and Dkt. No. 61, Defendants' Memorandum of Law at 3.
The court will also list the defendants, who they are, and then attempt to associate a claim with each defendant:
Some of defendants' names are misspelled in both plaintiff's and defendants' papers. This court has obtained the correct spelling of each defendant's name from his or her acknowledgment of service, and will utilize the appropriate spelling in this report.
1. James Allen, Corrections Officer, GMCF (served).
2. Steve Bernardi, former DOCS Deputy Commissioner (served).
3. Rory Birrell, Corrections Sergeant, GMCF (served).
4. C.O. Catalfamo, Corrections Officer, GMCF (served).
5. David Carpenter, Deputy Superintendent for Programs, GMCF (served).
6. Martin Cirincione, former Executive Director NYS Division of Parole (served).
7. K. Collyer, Inmate Grievance Program Chairman, GMCF ( not served ).
8. K. Copeland, Corrections Officer, GMCF (served).
9. S. Corrigan, Corrections Officer, GMCF (served).
10. Richard Doling, Hearing Officer, GMCF (served).
11. George Duncan, Former Superintendent, GMCF (served).
12. Thomas Eagen, Director DOCS Inmate Grievance Program (served).
13. Glenn Goord, DOCS Commissioner (served).
14. Scott Griffin, Corrections Officer, GMCF (served).
15. Frank Headley, former DOCS Deputy Commissioner (served).
16. D. Hurlburt, Corrections Officer, GMCF (served).
17. C. LaCroix, Corrections Sergeant GMCF (served).
18. Brian Malone, former DOCS Inspector General ( deceased ) ( not served ).
19. J. Michael, Corrections Officer GMCF (served).
20. Robert Mueller, Corrections Officer GMCF (served).
21. Edmundo Nunez, Medical Doctor, GMCF (served).
22. Albert Paolano, Medical Doctor, GMCF (served).
23. Wesley Perry, Corrections Officer, GMCF (served).
24. James Plescia, First Deputy Superintendent, GMCF (served).
25. Richard Potter, Deputy Superintendent of Administration, GMCF (served).
26. Richard Prevost, Corrections Officer, GMCF (served).
27. Ronald Quinn, Corrections Officer, GMCF (served).
28. Sally Reams, Inmate Grievance Supervisor, GMCF (served).
29. Donald Selsky, DOCS Director of Inmate Discipline and Special Housing (served).
30. Keven Smith, Corrections Sergeant, GMCF (served).
31. Brion Travis, former Chairman, NYS Division of Parole (served).
32. Mary Vann, former Corrections Counselor, Clinton Correctional Facility (served).
33. Patrick Vanguilder, Deputy Superintendent of Security, GMCF (served).
Defense counsel has also identified 31 causes of action against the various defendants. As stated above, the complaint is divided into seven sections, identified by letters "A" through "G". Each section contains what appears to be a separate incident. Each section also contains various paragraphs, outlining the facts surrounding each incident, with defendants listed that appear to be associated with the incident. Each paragraph within the sections also states at the end of the paragraph the constitutional or other violation that plaintiff alleges against each defendant named in the paragraph. Thus, each section of the complaint may contain multiple causes of action.
The seven sections of the complaint and the defendants associated with these sections are as follows:
A. Plaintiff's Central Monitoring Case Status (¶¶ 4-11, 44, 45). Defendants Vann, Headley, Goord, Malone, Cirincione, and Travis.
B. Plaintiff's Harassment While an IGRC Representative (¶¶ 12-22, 46-47, 51). Defendants Mueller, Prevost, Griffin, Reams, Bernardi, Eagen, Perry, Goord, Malone, Duncan, Hurlburt, Doling, Catalfamo, Selsky, Carpenter, and Potter.
C. Plaintiff's Unlawful Work Task Injury (¶¶ 23-30, 48-50). Defendants Michael, Paolano, LaCroix, Headley, Carpenter, Plescia, Vanguilder, Collyer, Smith, and Nunez.
D. The Quinn Robbery and Retaliation (¶¶ 31-34, 52-54). Defendants Quinn and Corrigan.
E. "Plaintiff Handcuff [sic] and Push Down Stairs" (¶¶ 35-39, 55-56). Defendants Allen, Copeland, and Birrell.
F. Property Damage and Loss and Physical Injury (¶ 40). Defendants Duncan, Potter, and Perry.
G. The Bernardi Document is Unconstitutional (¶¶ 41-43, 57). Bernardi, Goord, Headley, Eagen, Plescia, Potter, Vanguilder, and Duncan.
Inmate Grievance Resolution Committee.
The complaint also contains another section, entitled "Claims for Relief". This section appears to repeat many of the claims from the seven lettered sections, without indicating which defendant or defendants were involved, thus, the court must associate the claims in this section with the prior factual statements. This section contains paragraphs numbered 44 through 57 of the complaint. The court would also point out that in some of these paragraphs, plaintiff merely states that "defendant" engaged in some sort of conduct, without stating to which of the 31 defendants he is referring, although if the later sections are read in conjunction with the factual paragraphs, occasionally the facts are clarified. The court will also have to associate these statements with particular defendants mentioned in the previous sections.
The "Preliminary Statement" section of the amended complaint states that plaintiff is seeking relief under 42 U.S.C. §§ 1981, 1983, 1985(3), 1996 and 18 U.S.C. §§ 241, 242, and 245(2)(B) in addition to state law claims of assault and battery. Rather that state all the facts of this case in one section, the court will attempt to discuss each incident in a separate section for clarity.
3. Defendants Malone, Catalfamo, Hurlburt, Collyer, LaCroix, and Michael
Before the court proceeds with the analysis of plaintiff's individual claims, it should be noted that defendants Malone and Collyer are the only defendants who have not been served. The reason that defendant Malone was not served is because he is deceased, and was deceased prior to service being attempted upon him. Thus, defendant Malone has never appeared in this action, nor can he ever be served or appear in this action. Defendants Catalfamo, Hurlburt, LaCroix, and Michael were only recently served (April of 2005). Defendant Collyer has still not been served.
When defendants submitted their first motion to dismiss, they argued that defendants Malone, Catalfamo, Collyer, Hurlburt, LaCroix, and Michael (the then-unserved defendants) should all be dismissed from this action because none of them had been served. (Dkt. No. 59). In defendants' second motion to dismiss, although defendants acknowledge that defendants Catalfamo, Hurlburt, LaCroix, and Michael had been served, they continued to argue that the amended complaint should be dismissed as to all the "unserved" defendants because they were not served within the 120 days required by the Federal Rules.
The Federal Rules require that a defendant be served within 120 days of filing the complaint. FED. R. CIV. P. 4(m). The failure to serve a defendant within 120 days of filing the complaint may be a ground for dismissal of the complaint. Id. A pro se, in forma pauperis plaintiff may rely upon the Marshal to properly serve the summons and complaint. Romandette v. Weetabix, 807 F.2d 309, 311 (2d Cir. 1986). The rule itself states that if good cause is shown, a dismissal under this section should be without prejudice, and that the court shall extend the time for service for an appropriate period. FED. R. CIV. P. 4(m).
In this case, since plaintiff is pro se, and defendants Catalfamo, Hurlburt, LaCroix, and Michael have now been served, I will not recommend dismissal against these defendants on this basis. However, since defendant Malone has never, and will never be served, this court must recommend dismissal as to defendant Malone for failure to serve the defendant and obtain jurisdiction over him. Additionally, since defendant Collyer has never been served, this court will recommend dismissal on the basis of failure to serve as one of its reasons for dismissing the amended complaint as against this defendant. 4. Plaintiff's Central Monitoring Case Status (Section A)
The first section of plaintiff's amended complaint (¶¶ 4-11) states that in the first week of July 1999, defendant Vann discriminated against plaintiff based on race by preventing him from participating in the Merle Cooper Program. Amended Complaint (AC) ¶ 4. Plaintiff states that this program was designed to rehabilitate and/or to ensure that inmates were granted parole at their initial parole appearances. Plaintiff claims that these actions by defendant Vann were in violation of due process. Id. Plaintiff also claims that when he told defendant Vann that he was going to report her for her discriminatory conduct, defendant Vann retaliated against plaintiff by making him a "CMC" inmate. Plaintiff claims that on December 27, 1999, he complained to defendant Goord about defendant Vann's conduct, and although Goord referred the matter to defendant Headley for investigation, plaintiff claims that the investigation was not properly conducted. AC ¶ 6.
Close Monitoring Case.
Plaintiff claims that the complaint against defendant Vann was interpreted as an appeal of his CMC classification and referred to defendant Malone, who allegedly affirmed plaintiff's CMC status without affording plaintiff an opportunity to be heard on the subject. AC ¶ 7. Plaintiff states that his CMC classification is incorrect, and also claims that on April 18, 2000, defendant Cirincione "stated" that there was an "informal policy" of denying inmates parole on their first appearance before the Parole Board. AC ¶¶ 8-9. Plaintiff states that defendants Travis and Cirincione conspired with other unnamed DOCS personnel to assure that inmates do not "make parole" until their fourth or fifth appearance, and that this policy "targets" African American men convicted of violent crimes, thus discriminating against those inmates. AC ¶ 11.
Defendants argue that this entire claim is barred by the statute of limitations. Federal courts borrow the state law personal injury statute of limitations period for purposes of filing section 1983 actions. Wilson v. Garcia, 471 U.S. 261, 276 (1985). In New York State, the relevant limitations period is three years. Owens v. Okure, 488 U.S. 235, 250-51 (1989). See N.Y. CIV. PRAC. L R. § 214(5). Thus, unless the limitations period is tolled for some reason, a plaintiff must file his section 1983 civil rights action within three years of the accrual of each cause of action.
Federal law, however, governs the question of when a section 1983 claim accrues. Covington v. City of New York, 171 F.3d 117, 121 (2d Cir. 1999) (citing Morse v. University of Vermont, 973 F.2d 122, 125 (2d Cir. 1992)), cert. denied, 120 S. Ct. 363 (1999). Generally, under federal law, a cause of action accrues when "the plaintiff knows or has reason to know of the injury which is the basis of his action." Id. (quoting Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir. 1980) (internal quotation marks omitted)).
Equitable tolling of the statute of limitations allows the court to extend the limitations period as necessary to avoid inequitable circumstances. Johnson v. Nyack Hospital, 86 F.3d 8, 12 (2d Cir. 1996) (citation omitted). Courts have applied this doctrine as a matter of fairness when the plaintiff has been prevented in some "extraordinary way" from exercising his rights or has asserted his rights in the wrong forum. Id. (citing Miller v. International Tel. Tel. Corp., 755 F.2d 20, 24 (2d Cir.), cert. denied, 474 U.S. 851 (1985)). However, the plaintiff must have exercised "reasonable diligence" during the period he seeks to have equitably tolled. Id. (citing Dodds v. Cigna Secs., Inc., 12 F.3d 346, 350 (2d Cir. 1993)). The burden of showing that equitable tolling should be applied lies with the plaintiff. Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000).
Additionally, courts have recognized the concept of continuing violation. See e.g., Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994); Shannon v. Recording Industry Ass'n of America, 661 F. Supp. 205, 210 (S.D. Ohio) (citation omitted). However, the court must distinguish between a "continuing violation" and a violation with "continuing consequences." Shannon, 661 F. Supp. at 210 (citing Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir. 1981). A single violation with continuing consequences does not extend the accrual of the statute of limitations past the original act. Id. See also Doe v. Blake, 809 F. Supp. 1020, 1025 (D. Conn. 1992) (a continuing violation is occasioned by continuing unlawful acts, not by continued ill effects from the original violation).
Plaintiff filed this action on December 3, 2003. Three years prior to the filing of plaintiff's complaint would be December 3, 2000. Any claim accruing before that date would be barred by the statute of limitations. Since plaintiff's claims regarding his CMC classification all occurred either in July of 1999 or December of 1999, his entire claim is barred by the statute of limitations. Plaintiff's claim that some "informal policy" of defendant Cirincione together with defendant Travis that was articulated by defendant Cirincione on April 18, 2000, violated plaintiff's constitutional rights is also barred by the statute of limitations.
The court would also point out that plaintiff never actually states that this "informal policy" was applied to him on any particular date. Although plaintiff states that this "informal policy" discriminated against African American males convicted of violent crimes, plaintiff has not stated in his complaint that he fits into this category of individuals or that he was not released until his "fourth or fifth" parole appearance. In addition to being barred by the statute of limitations, this allegation is too conclusory to withstand a motion to dismiss.
Thus, this court will recommend dismissal of plaintiff's first claim based on the statute of limitations. Since defendants Vann, Travis, and Cirincione are mentioned only in the first claim, the complaint may be dismissed in its entirety as against these three defendants.
5. Retaliation and Harassment (Section B)
Section B of the amended complaint states that a variety of defendants harassed and retaliated against plaintiff after he was elected as an Inmate Grievance Representative. The court would first point out that each section contains many claims against many defendants. Additionally, although the section is entitled retaliation and harassment, plaintiff may have other claims within this section, and in an effort to organize this decision, the court will discuss all the claims within each section even if the claims stray slightly from the subject matter of the heading.
Any action taken by defendants in retaliation for the exercise of a constitutional right, even if not unconstitutional in itself, states a viable constitutional claim. Franco v. Kelly, 854 F.2d 584, 588-90 (2d Cir. 1988). However, it is also well settled that verbal harassment itself does not rise to the level of a constitutional violation. Verbal abuse, vulgarity, and even threats are insufficient to rise to the level of constitutional violations. See Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986); Ramirez v. Holmes, 921 F. Supp. 204, 210 (S.D.N.Y. 1996) (threats or verbal harassment without injury, "although indefensible and unprofessional," do not rise to the level of constitutional violations).
In order to establish a claim of retaliation for the exercise of a constitutional right, plaintiff must show first, that he engaged in constitutionally protected conduct, and second, that the conduct was a substantial motivating factor for adverse action taken against him by defendants. Bennett v. Goord, 343 F.3d 133, 137 (2d Cir. 2003) (citing Gayle v. Gonyea, 313 F.3d 677 (2d Cir. 2002); Hendricks v. Coughlin, 114 F.3d 390 (2d Cir. 1997)). The court must keep in mind that claims of retaliation are "easily fabricated" and thus, plaintiff must set forth non-conclusory allegations. Id. (citing Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001), overruled on other grounds, Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002)).
The court would note that Dawes did not create a "heightened pleading standard", and to the extent that it did create such a standard, the Second Circuit held that Dawes was inconsistent with Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002). See Phelps v. Capnolas, 308 F.3d 180, 187 (2d Cir. 2002). The decision in Phelps resulted from a motion to dismiss for failure to state a claim under FED. R. CIV. P. 12(b)(6), and the court was considering only the face of the complaint.
The court in Dawes stated that in order to survive summary dismissal, the plaintiff's "non-conclusory" allegations must establish
(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 [or conduct] and the adverse action.239 F.3d at 492 (citations omitted). Additionally, in a prison context, all that is required is that the adverse conduct by defendant would have deterred a similarly situated individual of ordinary firmness from exercising his First Amendment rights. See Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir. 2004). In Gill, the court held that this objective test applies, even where a particular plaintiff was not subjectively deterred and continued to file grievances and lawsuits. Id.
In this case, the amended complaint states that on March 21, 2001, defendant Mueller used racial epithets and warned plaintiff not to help other inmates file grievances or he would have plaintiff "removed" from his position as Mueller had allegedly done to previous Inmate Grievance Representatives. AC ¶ 13. This is the only paragraph in the complaint in which defendant Mueller is mentioned. There is no indication that defendant Mueller took any action against plaintiff. In fact, it is clear from later paragraphs in the amended complaint that plaintiff was still in his "position" in August of 2001. Even if defendant Mueller did as plaintiff claims, plaintiff has not stated a constitutional violation as against this defendant, and at worst, this was verbal harassment without injury. Thus, since this is the only place in the amended complaint where defendant Mueller is mentioned, the entire complaint may be dismissed as to defendant Mueller.
Defendant Prevost is mentioned in paragraphs 14 and 15 of the amended complaint. Plaintiff states that a colleague of defendant Prevost's was suspended for using a racial epithet on the loudspeaker. AC ¶ 14. Plaintiff claims that on March 29, 2001, defendant Prevost singled plaintiff out as a "high profile" Inmate Grievance Representative and filed a false misbehavior report against plaintiff in retaliation for the suspension of Prevost's colleague. This claim by plaintiff is completely conclusory. There is no indication of why Prevost allegedly "singled out" plaintiff or why Prevost would retaliate against plaintiff for the discipline of Prevost's colleague, unrelated to any actions by plaintiff. There is absolutely no nexus between plaintiff's allegedly protected activity of being an Inmate Grievance Representative and Prevost's alleged actions.
Plaintiff then alleges that on August 14, 2001, defendants Prevost and Griffin retaliated against plaintiff because of his Inmate Grievance responsibilities by "sexually harassing" plaintiff. AC ¶ 15. This conduct allegedly consisted of defendants Prevost and Griffin "fondling and violently squeezing" plaintiff's genitals and "sticking a baton in plaintiff's anus area" during a pat frisk. AC ¶ 51. Plaintiff also claims that this conduct was in retaliation for plaintiff's March 30, 2001 complaint against Prevost. Id.
The Eighth Amendment protects an inmate from the "unnecessary and wanton infliction of pain." Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir. 1997) (quoting Whitely v. Albers, 475 U.S. 312, 319 (1986)). In order to violate the Eighth Amendment, the "punishment" must be "objectively, sufficiently serious," and the official must have had a "sufficiently culpable state of mind." Id. (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)).
While allegations of sexual abuse may in some circumstances violate the Eighth Amendment, isolated incidents of harassment, involving verbal harassment and touching are not severe enough to be "objectively, sufficiently serious." Boddie, 105 F.3d at 861. The plaintiff in Boddie was also claiming an Eighth Amendment violation based upon allegations of sexual abuse. Id. The court held that the "isolated episodes of harassment and touching alleged by Boddie are despicable and, if true, they may potentially be the basis of state tort actions. But they do not involve a harm of federal constitutional proportions. . . ." Id.
In this case, plaintiff alleges one instance of improper touching by defendants Provost and Griffin. Even assuming the truth of plaintiff's statements, they do not rise to the level of a constitutional violation. Plaintiff claims that defendants Provost and Griffin "violently squeezed" plaintiff's genitals and placed a baton in plaintiff's "anus area" in order to provoke plaintiff into a physical confrontation. The "squeezing" is a claim of improper touching, and it is unclear what plaintiff means by placing a baton in his "anus area", but as it is stated in the amended complaint, it appears that this too is an allegation of improper touching in the "area". See AC ¶ 51. Based upon Boddie, plaintiff's description of this one incident does not state an Eighth Amendment claim.
Plaintiff also alleges that this incident was conducted in retaliation for plaintiff's activities as an Inmate Grievance Representative and in retaliation for a complaint that plaintiff made against Prevost in March of 2001. This would be a separate claim of a First Amendment violation. The amended complaint is insufficient to state a First Amendment claim. Plaintiff makes a conclusory statement that these two defendants engaged in the alleged behavior because of plaintiff's representative status, but there is absolutely no connection stated.
Additionally, plaintiff claims that the alleged conduct was undertaken because of a complaint that he made against Prevost five months before the incident. A causal connection may be established if the protected activity was closely followed by the adverse action. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998). If the protected activity in this case was plaintiff filing a complaint against defendant Prevost, plaintiff has not established a causal connection between that and the alleged sexual harassment since the sexual harassment occurred five months after the complaint. Thus, plaintiff has failed to allege either cruel and unusual punishment or retaliation against defendants Prevost and Griffin. Since this is the only claim made as against these two defendants, the complaint may be dismissed in its entirety as against these two defendants.
Plaintiff's next claim of "retaliation" is against defendants Reams, Bernardi, Eagen, and Perry. AC ¶¶ 16-17. Plaintiff alleges that these defendants "employed tactics to harass, intimidate, and retaliate against plaintiff" during the course of his tenure as IGP representative. Paragraph 16 of the amended complaint is a completely conclusory claim against these defendants. There no claim of what conduct this alleged retaliation may have included, and all plaintiff states is that the retaliation is for plaintiff's written complaint against defendant Reams's IGP policies.
Defendant Bernardi is a former DOCS Deputy Commissioner. There is no indication in paragraph 16 of the complaint of how Bernardi employed "tactics" to retaliate against plaintiff, or what those "tactics" were. Defendant Eagen is the Director of the DOCS Inmate Grievance Program, and there is no allegation of what defendant Eagen did to "retaliate" against plaintiff. Defendant Reams was the Inmate Grievance Supervisor at GMCF. Although plaintiff states that defendant Reams retaliated against plaintiff for complaining about her policies as IG Supervisor, plaintiff has not specified when or to whom he made the complaint. Defendant Perry is a corrections officer, and plaintiff does not state what conduct this defendant is alleged to have undertaken to retaliate against plaintiff for his IGP activities. It is completely unclear how defendant Perry, a corrections officer, would have known about a complaint that plaintiff made about defendant Reams' policies.
In paragraph 17, plaintiff states that defendant Reams "retaliated" against plaintiff by "constantly reminding" plaintiff to "tone down" his writing or he would suffer reprisals from GMCF prison guards. AC ¶ 17. Throughout this paragraph, the only thing plaintiff alleges against defendant Reams is that she threatened adverse action against plaintiff, but never alleges that any of these things were accomplished. Plaintiff does claim that defendant Reams (a female) "sexually harassed" plaintiff when he would inquire about missing grievances and "guilefully" impeded plaintiff's office time, obstructed justice by "miscoding grievances" and discriminated against black prisoners by not allowing them to work as clerks in the IGP Office.
Once again, plaintiff's claims are completely conclusory. Plaintiff does not state how defendant Reams "sexually harassed" him. Additionally, the allegation that defendant Reams engaged in some sort of misconduct by deliberately miscoding grievances or by discriminating against other black inmates has nothing to do with plaintiff, and cannot be a basis for a damage claim by plaintiff.
Defendant Reams is mentioned again in paragraph 19 of the amended complaint. Again, the only claim that plaintiff makes in this paragraph is that after plaintiff filed a grievance against Reams on August 31, 2001, defendant Reams "admonished" plaintiff that he could not work in the IGP Office if he continued writing complaints against her. Once again, plaintiff claims only verbal threats by defendant Reams, and this paragraph does not state a claim as against defendant Reams.
In paragraph 20, plaintiff alleges that defendants Perry, Hurlburt, Doling (a hearing officer), and Reams "conferred — off-the-record" and "conspired" to remove plaintiff from his IGP position after defendant Hurlburt filed an allegedly false misbehavior report against plaintiff on September 12, 2001. There is no indication as to any nexus between defendant Hurlburt's misbehavior report and any IGP activities by plaintiff or how defendants Perry, Hurlburt, Doling, and Reams "conferred" off-the-record to oust plaintiff from his IGP position. All these statements are conclusory allegations that are insufficient to survive a motion to dismiss.
Plaintiff also claims that defendant Doling was the hearing officer at plaintiff's September 12, 2001 disciplinary hearing, and he failed to complete the hearing within the seven days required under New York law. AC ¶ 21. Plaintiff claims that defendant Doling was "threatening" plaintiff off the record and colluded with defendant Catalfamo to cause the hearing tape to malfunction.
As stated above, any verbal threats by defendant Doling would not rise to the level of a constitutional violation. Additionally, any violations of state regulations governing the procedures for disciplinary hearings also do not rise to the level of constitutional violations. See Dixon v. Goord, 224 F. Supp. 2d 739, 744-45 (S.D.N.Y. 2002) (federal standards, not state law define the requirements of due process, and violations of State procedural rules alone do not implicate constitutional rights) (citing Russell v. Coughlin, 910 F.2d 75, 78 n. 1 (2d Cir. 1990)). Thus, even if defendant Doling did not finish plaintiff's disciplinary hearing in the required time and did not obtain valid extensions, this cannot form the basis of a constitutional claim.
The fact that defendant Catalfamo may have caused the tape recorder to malfunction is also not a constitutional violation. Plaintiff also claims that defendant Doling "divined" plaintiff's alibi defense and "failed to call his witness." AC ¶ 21. There is very little information regarding plaintiff's disciplinary hearing. Plaintiff has not alleged, other than the possible loss of his position as IGP representative, what sanctions flowed from the disciplinary conviction.
In Sandin v. Conner, 515 U.S. 472, 484 (1995), the Supreme Court held that although states may still create liberty interests protected by due process, "these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force . . ., nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." The Court in Sandin determined that the inmate's discipline in segregated confinement for 30 days did not present the type of atypical, significant deprivation in which the state might create a liberty interest. Id.
Plaintiff has made such conclusory statements about his disciplinary hearing that this court cannot determine whether he even had a liberty interest requiring due process protection. Thus, this court will recommend dismissing any due process claim as against defendant Doling without prejudice to plaintiff submitting an amended complaint alleging only constitutional violations and showing that he had a liberty interest in the due process protections he is alleging.
Finally, plaintiff alleges that defendants Goord (Commissioner of DOCS), Selsky (Director of Inmate Discipline), Duncan (former Superintendent of GMCF), Carpenter (Deputy Superintendent for Programs GMCF), and Potter (Deputy Superintendent of Administration at GMCF) violated plaintiff's due process rights because they affirmed the disciplinary conviction, notwithstanding the alleged due process violations. It is unclear how all these defendants would be involved in the appeal of plaintiff's disciplinary hearing. Plaintiff must remember that personal involvement of a defendant in a constitutional violation is required for the assessment of damages in a civil rights action. McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.), cert. denied, 434 U.S. 1087 (1978). Thus, this court will recommend dismissal without prejudice of plaintiff's due process claim as to these defendants.
Part of the problem with plaintiff's complaint is that he has named so many defendants and is attempting to allege so many claims, that the complaint is very difficult to analyze. Because plaintiff is pro se, and this is a motion to dismiss based on the face of the complaint alone, the court will recommend dismissal without prejudice for some of plaintiff's claims in which plaintiff might be able to state a claim. However, when and if plaintiff submits a proposed amended complaint, he should take special care not to repeat claims that the court has stated could not be constitutional claims, such as the violation of state regulations governing disciplinary hearings or alleged verbal threats that did not lead to any adverse action. Plaintiff also may not simply allege that defendants used "tactics" without specifying what those tactics were or how they related to plaintiff's protected activity. The fact that plaintiff was an IGP representative does not indicate that every adverse action taken against him related to his position as a representative.
6. Plaintiff's Work Task Injury (Section C)
Plaintiff first alleges that defendant Michael ordered plaintiff to perform a work task as punishment for violation of an inmate behavior rule, without giving plaintiff "due process." The work task consisted of window washing. AC ¶ 24. The court would first note that as stated above, an inmate must have a protected liberty interest in being free from "restraint" that imposes an atypical and significant hardship on an inmate in relation to the ordinary incidents of prison life. Sandin, supra. Plaintiff simply alleges that defendant Michael ordered plaintiff to perform a work task. In and of itself, the work task of washing windows does not qualify as either "restraint" or as atypical and significant. Thus, to the extent that plaintiff claims a due process violation as against defendant Michael for ordering plaintiff to wash windows, this claim may be dismissed with prejudice.
Plaintiff also appears to allege that defendant Michael ordered plaintiff to climb a ladder to wash the windows without a safety belt or supervision, and notwithstanding plaintiff telling Michael that plaintiff had never used a ladder before. Plaintiff ultimately fell off the ladder and injured himself. Plaintiff alleges that defendant Michael's actions were "deliberately indifferent" to plaintiff's health and safety.
The Eighth Amendment protects inmates against cruel and unusual punishment. U.S. CONST. amend. 8. Cruel and unusual punishment takes the form of "unnecessary and wanton infliction of pain" by prison officials. Wilson v. Seiter, 501 U.S. 294, 297 (1991); Estelle v. Gamble, 429 U.S. 97, 104 (1976). Under the Eighth Amendment, an inmate has the right to be free from conditions of confinement that impose an excessive risk to the inmates health or safety. Farmer v. Brennan, 511 U.S. 825, 837 (1994).
In order to establish a constitutional violation with respect to unsafe working conditions, the plaintiff must show that he was
1) incarcerated under conditions which posed a serious risk of serious harm, and 2) prison officials acted with deliberate indifference to his health or safety.Id. at 834. The deliberate indifference standard is two-pronged, with both an objective and a subjective component. Howard v. Headly, 72 F. Supp. 2d 118, 123 (E.D.N.Y. 1999) (citing Hathaway v. Coughlin 37 F.3d 63, 66 (2d Cir. 1994); Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)).
The objective component requires the plaintiff to allege a "sufficiently serious" deprivation. Hathaway, 37 F.3d at 66 (quoting Wilson, 501 U.S. at 298). Plaintiff may accomplish this by alleging that his prison work duties created a serious risk of serious injury. Howard, 72 F. Supp. 2d at 123-24 (citations omitted). The subjective component of the Eighth Amendment standard involves the defendants' state of mind. Id. at 124 (citing Hathaway, 37 F.3d at 66). The defendants must have acted with deliberate indifference. Id. This requires that the defendants know of and disregard an excessive risk to the inmate's health or safety. Id. The defendant must both have been aware of the facts from which the inference could be drawn that a substantial risk of harm exists, and they must also have drawn the inference. Id. Deliberate indifference requires "'more than negligence, but less than conduct undertaken for the very purpose of causing harm.'" Id. (quoting Hathaway, 37 F.3d at 66).
In Howard, the court denied a motion to dismiss a complaint alleging that prison officials forced plaintiff to perform work that was medically prohibited. Id. at 125. However, Howard is distinguishable from this case. The plaintiff in Howard alleged that he presented a doctor's note to one of the defendants stating that plaintiff had medical restrictions, and could only perform light duty tasks. Id. at 120. Plaintiff then alleged that regardless of the note, the defendant forced Howard to keep working. Id. Howard complied with this order and suffered "'every day in pain and agony.'" Id. Howard then appeared before the grievance committee which recommended that he appear before the program committee for reassignment. Id. at 121. Howard was ultimately injured while working at his job assignment and sent to the hospital, where the doctor issued him a "no work" medical restriction. Id. Howard alleged that he presented these restrictions to defendants, but they forced him to continue working and told him that he was "faking." Id.
Plaintiff in this case merely states that defendant Michael forced him to wash windows, and that plaintiff informed Michael that he had never before used a ladder. There is no indication that plaintiff had any medical restrictions or that defendant Michael knew that the ladder might be unsafe for plaintiff. At worst, defendant Michael could have been negligent in having plaintiff climb the ladder without some sort of safety device. Negligence, however, does not rise to the level of a constitutional violation. Daniels v. Williams, 474 U.S. 327 (1986); Whitley v. Albers, 475 U.S. 312 (1986). Thus, plaintiff's Eighth and Fourteenth Amendment claims against defendant Michael for allegedly forcing plaintiff to wash windows on a ladder must be dismissed with prejudice.
To the extent that plaintiff claims that defendant Michael violated an Employee Manual, as stated above, violations of state laws, rules, or regulations do not rise to the level of constitutional claims. Dixon v. Goord, 224 F. Supp. 2d at 744-45. Thus, any state law claims may be dismissed as against defendant Michael.
Plaintiff alleges that he was admitted to the infirmary after his fall off the ladder. AC ¶ 26. Plaintiff claims that defendant Dr. Paolano failed to record the injury to plaintiff's back in plaintiff's medical file in violation of a "Medical Handbook", due process, and equal protection. Plaintiff also states in paragraph 30 of the amended complaint that defendant Dr. Nunez "threatened" plaintiff to stop "abusing sick call privileges" and told plaintiff that security personnel did not want plaintiff to have a walking cane.
In order to state a claim based on inadequate medical treatment, the plaintiff must allege "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). A plaintiff must allege that his access to physicians for necessary medical care was unreasonably delayed or denied, or that prescribed medical treatment was not administered. Tomarkin v. Ward, 534 F. Supp. 1224, 1240 (S.D.N.Y. 1982) (citing Todaro v. Ward, 431 F. Supp. 1129, 1133 (S.D.N.Y.)), aff'd, 565 F.2d 48 (2d Cir. 1977).
The court would point out that disagreement with prescribed treatment does not rise to the level of a constitutional claim. Ross v. Kelly, 784 F. Supp. 35, 44 (W.D.N.Y.), aff'd, 970 F.2d 896 (2d Cir.), cert. denied, 506 U.S. 1040 (1992). Prison officials have broad discretion in determining the nature and character of medical treatment afforded to inmates. Id. (citations omitted). An inmate does not have the right to treatment of his choice. Id. (citing Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986)); Jackson v. Fair, 846 F.2d 811, 817-18 (1st Cir. 1988) Additionally, negligence by physicians, even amounting to malpractice does not become a constitutional violation because the plaintiff is an inmate. Estelle, 429 U.S. at 107. Thus, any claims of malpractice, or disagreement with treatment are not actionable under section 1983.
The statements made by plaintiff against the two defendant doctors do not even approach the standard for deliberate indifference. The fact that Dr. Paolano is alleged to have failed to record plaintiff's injury to his back, even if as plaintiff states, this action violated some handbook, does not amount to deliberate indifference. Plaintiff does not even state that this action caused plaintiff any injury. At the worst, this type of action could be considered malpractice, which as stated above, does not rise to the level of a constitutional violation.
The statements made by plaintiff against Dr. Nunez are equally insufficient. Plaintiff claims that Dr. Nunez told plaintiff to stop abusing sick call privileges. Even if plaintiff were not abusing those privileges, the fact that Dr. Nunez made that comment does not constitute deliberate indifference. As stated above, verbal abuse does not rise to the level of a constitutional violation. Dr. Nunez's statement does not even approach the level of verbal abuse, notwithstanding the fact that plaintiff uses the word "threatened" in conjunction with the alleged statement. Additionally, the fact that Dr. Nunez may have told plaintiff that security personnel did not want plaintiff to use a cane also cannot be considered deliberate indifference. These are the only claims made against doctors Paolano and Nunez, and therefore, the amended complaint may be dismissed in its entirety with respect to these two defendants.
Plaintiff also alleges that defendant LaCroix "caused" Nurse Dunning to ignore plaintiff's complaints of back pain in violation of the Employee Manual, and that LaCroix and Michael filed false misbehavior reports in order to get plaintiff removed from his cafeteria job in violation of the Employee Manual and due process. AC ¶¶ 27-28. As this court has previously stated, the violation of an Employee Manual does not rise to the level of a constitutional violation. Dixon v. Goord, 224 F. Supp. 2d at 744-45.
This court makes no finding as to whether such manuals exist or, if so, whether defendants violated those manuals. The court is only assuming that the facts as stated in the complaint are true for purposes of the motion to dismiss.
The law is clear that there is no constitutional violation caused by the issuance of a false misbehavior report alone. Freeman v. Rideout, 808 F.2d 949, 953 (2d Cir. 1986), cert. denied, 485 U.S. 982 (1988). However, any action done in retaliation for the exercise of a constitutional right, even if not unconstitutional in itself, states a viable constitutional claim. Franco v. Kelly, 854 F.2d 584, 588-90 (2d Cir. 1988). In this claim, plaintiff does not state that defendants LaCroix and Michael were retaliating against plaintiff for any protected activity, thus, the fact that they allegedly filed a false misbehavior report in order that plaintiff would get fired from his cafeteria job does not rise to the level of a constitutional violation.
The court would also point out that plaintiff has no due process right to a particular job assignment or to retain a particular job. McNatt v. Parker, 96-CV-1397, 2000 U.S. Dist. Lexis 20468, *19 (D. Conn. Jan. 18, 2000) (citations omitted), aff'd, 11 Fed. Appx. 30 (2d Cir. 2001). Thus, plaintiff cannot maintain a due process claim as against defendants LaCroix and Michael based on an allegation that they filed false misbehavior reports so that plaintiff would lose his job in the cafeteria. Plaintiff also claims that defendants Headley, Carpenter, Plescia, Vanguilder, Collyer, Smith, LaCroix, and Michael caused plaintiff to be removed from his cafeteria job without compensatory pay "as punishment for his falling off a ladder at work" and for "his known intent" to pursue a lawsuit for his injuries." AC ¶ 29.
As stated above, since plaintiff has no constitutional right to a particular job, any claim that these defendants removed plaintiff from his job in the cafeteria as a "punishment" for falling from the ladder, does not rise to the level of a constitutional claim. Plaintiff alleges that he was removed from his job because of his "known intent" to file a lawsuit for his injuries. Plaintiff has named a list of defendants, alleging that they retaliated against him for a "known intent" to file a lawsuit. However, this statement is completely conclusory. There is no indication, for instance, how defendant Headley, a former DOCS Deputy Commissioner would have been aware of plaintiff's fall and how he would have "known" about plaintiff's " intent. " The same is true for the other defendants named in the list. Plaintiff does not even indicate how his "intent" could have been known by any of these defendants. Therefore, this claim of retaliation may be dismissed as against all defendants listed in paragraph 29 of the amended complaint. All claims relating to plaintiff's "Unlawful Work Task Injury" may be dismissed. AC ¶¶ 23-30.
7. The Quinn "Robbery" and Retaliation (Section D)
Plaintiff claims that on March 19, 2002, defendant Quinn confiscated plaintiff's personal property in violation of a DOCS Directive, denying plaintiff due process, and violating his right to be free from illegal search and seizure. AC ¶¶ 31-32. To the extent that plaintiff alleges a violation of DOCS Directives, as stated above, he cannot maintain a section 1983 action based on the alleged violation of a State statute, rule or regulation.
With respect to allegations of due process violations, the deprivation of an inmate's property, whether intentional or unintentional, without more, is not actionable under section 1983 as long as the state has an adequate post deprivation procedure available. Hudson v. Palmer, 468 U.S. 517, 533 (1984). New York provides an adequate post-deprivation remedy in the Court of Claims with respect to property claims by prison inmates. See Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996); Love v. Coughlin, 714 F.2d 207, 209 (2d Cir. 1983); see also N.Y. CT. CL. ACT § 10(6) (McKinney 1998). Thus, to the extent that plaintiff claims a due process violation as the result of the confiscation of his property, that claim may be dismissed.
The Fourth Amendment protects against unreasonable searches and seizures. U.S. CONST. amend IV. It has been clearly held, with respect to searches, that an inmate does not have a reasonable expectation of privacy in his jail cell. See Willis v. Artuz, 301 F.3d 65, 66-67 (2d Cir. 2002) (citing Hudson v. Palmer, 468 U.S. 517 (1984)). While it is true that inmates do not shed all constitutional rights at the facility door, the Second Circuit has held that the concept of "unreasonable" search or seizure is an "amorphous standard whose meaning varies with the context in which a search occurs and the circumstances of the search. . . ." N.G. ex rel. S.C. v. Connecticut, 382 F.3d 225, 230 (2d Cir. 2004).
In Miller v. Herbert, the court held that although most of the cases analyzing the Fourth Amendment in prison dealt with "searches", there was no "apparent reason" why the seizure provision would not be implicated as well. Miller v. Herbert, 95-CV-360, 1997 U.S. Dist. LEXIS 15144, *7-8 (W.D.N.Y. Sept. 24, 1997). This, together with the fact that a loss or destruction of property is not actionable leads this court to find that plaintiff cannot state a claim under either due process or the Fourth and Fourteenth Amendment rights to be free from unreasonable searches and seizures.
Plaintiff alleges that he asked defendant Quinn about his property on April 1, 2002, and defendant Quinn told plaintiff that plaintiff could not "prove" that Quinn had taken the property, and threatened plaintiff that he would "have trouble" at GMCF if plaintiff followed through with his plan to file a lawsuit against defendant Michael. AC ¶ 32. Plaintiff claims that defendant Quinn's actions violated plaintiff's right to access to the courts.
As stated above, verbal threats do not rise to the level of constitutional violations, thus, even if Quinn "threatened" plaintiff with "trouble", no constitutional claim is stated. In order to maintain an action for denial of access to courts, an inmate must show actual injury as a result of the deficient access to courts. Lewis v. Casey, 518 U.S. 343 (1996). The cause of the injury must be inadequacy of the access. Id. at 351. Plaintiff must show that a non-frivolous legal claim was frustrated or impeded due to the actions of prison officials. Warburton v. Underwood, 2 F. Supp. 2d 306, 312 (W.D.N.Y. 1998) (quoting Lewis v. Casey, 518 U.S. at 353).
In this case, plaintiff merely alleges that defendant Quinn threatened that there would be trouble if plaintiff filed a lawsuit against defendant Michael. There is no indication that defendant Quinn took any action with respect to an action that plaintiff was filing, and plaintiff alleges no actual injury as a result of defendant Quinn's actions. Thus, any access to courts claim may be dismissed.
Plaintiff also claims that on September 1, 2003, defendants Quinn and Sergeant Brown "discriminated" against plaintiff by refusing to allow inmate porters to assist plaintiff in moving to another cell. Plaintiff claims that this action was in "retaliation" for plaintiff filing a complaint against defendant Corrigan. AC ¶ 33. Once again, plaintiff has not shown how either defendant Quinn or Sergeant Brown (not a defendant) knew about plaintiff's alleged grievance against defendant Corrigan. Plaintiff has not indicated a date on which he filed this grievance against defendant Corrigan.
Sergeant Brown does not appear to be a defendant in this action.
Plaintiff does state in paragraph 34 of the amended complaint that on August 11, 2003, defendant Corrigan used a racial slur against plaintiff and placed plaintiff in punitive cell confinement for two days in violation of New York State regulations, in "retaliation" for Corrigan's "belief" that plaintiff was going to file a lawsuit against GMCF staff. It is unclear how plaintiff is assuming that defendant Corrigan had a "belief" that plaintiff was going to file a lawsuit against anyone. Thus, this conclusory allegation is insufficient to withstand a motion to dismiss. Additionally, no due process right is implicated since plaintiff alleges that he was in punitive cell confinement for only two days. Any state law violations are not actionable, and a two day punitive cell confinement certainly does not rise to the level of cruel and unusual punishment. Thus, all plaintiff's claims under Section D (AC ¶¶ 31-34) of the amended complaint may be dismissed.
8. Plaintiff Handcuffed and Pushed Down the Stairs (Section E)
Plaintiff alleges that on April 17, 2002, defendants Allen and Copeland told plaintiff to pack his property and move to a new cell, despite his back and knee injury. Plaintiff then claims that defendants Copeland and Allen placed handcuffs on plaintiff for no reason during the move, and after plaintiff exited his cell, these defendants allegedly pushed him down the stairs, telling plaintiff to "stop faking." AC ¶ 36. Plaintiff alleges that he hit his back and head on the stairs. Plaintiff also claims that defendant Birrell, a Sergeant, denied plaintiff medical care after the fall. AC ¶ 37. Plaintiff states that he was denied medical attention for six days, and he was not examined by a doctor for thirteen days.
The court notes that plaintiff alleges that he hurt his back and knee when he fell off the ladder in January of 2002, approximately three months before the plaintiff alleges that he had to move to another cell in April of 2002.
Assuming the truth of plaintiff's allegations, this claim may survive. If defendants Copeland and Allen pushed plaintiff down the stairs intentionally while he was handcuffed, plaintiff has stated an Eighth Amendment violation. If defendant Birrell intentionally denied plaintiff the ability to obtain medical care for his injuries, plaintiff has stated a claim of deliberate indifference to his serious medical needs. Although the court is not making any findings regarding the merits of this claim, the court will not recommend dismissal of the claim as against defendants Allen, Copeland, and Birrell.
9. Property Damage and Loss and Physical Injury (Section F)
In this section of the amended complaint, plaintiff claims that defendants Duncan, Potter, and Perry acted contrary to a DOCS Directive and to due process when they denied plaintiff's institutional claims for loss and damage to property and his claim for physical injuries. The claim that these defendants acted contrary to a DOCS Directive must be dismissed because it does not state a claim under section 1983. Dixon v. Goord, 224 F. Supp. 2d at 744-45. As stated above, any claims of loss or destruction of personal property do not rise to the level of constitutional claims, thus, even if these defendants denied plaintiff's institutional claims for loss of property, plaintiff would not be able to state a claim for relief.
Plaintiff also appears to allege that he made a claim for personal injuries. Plaintiff does not specify to what injuries or incident he refers, and these defendants allegedly denied a "claim" that plaintiff made for damages. Although plaintiff alleges "due process" violations, he does not allege how the named defendants denied him due process, other than to deny the claim. These vague and non-specific statements do not state a constitutional violation.
Although plaintiff does not state what kind of claim he brought, the court assumes that he is discussing the Inmate Grievance Procedure. In New York, the grievance resolution procedure was established by state law. See N.Y. CORRECT. LAW § 139. See also Patterson v. Smith, 53 N.Y.2d 98, 101, 440 N.Y.S.2d 600, 602, 423 N.E.2d 23 (1981). New York has also promulgated regulations governing the procedures for resolving inmate grievances. N.Y. COMP. CODES R. REGS. tit. 7, §§ 701.1-701.16.
Courts have consistently held that because grievances procedures are undertaken voluntarily by New York and other states, they are not constitutionally required. See Ramos v. Hanslmaier, 96 Civ. 744, 1997 U.S. Dist. LEXIS 6082, *6-7 (S.D.N.Y. Feb. 19, 1997) (multiple citations omitted). See also Bullock v. Horn, CV-99-1402, 2000 U.S. Dist. LEXIS 21573, *22-23 (M.D. Pa. 2000) (plaintiff claimed improper refusal to process grievance); Hoover v. Watson, 886 F. Supp. 410, 418-19 (D. Del.), aff'd, 74 F.3d 1226 (3d Cir. 1995); Muhammad v. McMickens, 86 Civ. 7376, 1988 U.S. Dist. LEXIS 552, *8-9 (S.D.N.Y. Jan. 25, 1988). Because the grievance procedures are not constitutionally required, a state's violation of those procedures or its failure to enforce them does not give rise to a claim under section 1983. Id.
In this case, plaintiff alleges that defendants Duncan, Potter, and Perry denied his institutional claim. Since these claims are not constitutionally required, there are no due process requirements, and plaintiff does not specify any act by any of the defendants that he claims violated due process. Therefore, the claim in section F of the amended complaint regarding claims for property damages and physical injuries may be dismissed in its entirety.
10. The Bernardi Document (Section G)
This section appears to be a general complaint as to how grievances are handled by DOCS. Plaintiff claims that defendant Bernardi, a former DOCS Deputy Commissioner, issued some sort of memorandum, with the approval of defendant Goord, advising DOCS employees how to investigate and handle harassment and discrimination grievances. AC ¶ 41. Plaintiff then makes some completely conclusory claims about defendant Bernardi being part of a conspiracy to discredit prisoner complaints, "so as to reflect favorably upon DOCS should litigation follow." Id. Plaintiff criticizes the "boiler plate" language used in the defendants' grievance decisions. Plaintiff states that every grievance, "non-grievance", and formal complaint that he has filed between 2001 and 2003 with defendants Goord, Headley, Bernardi, Eagen, Plescia, Potter, Vanguilder, and Duncan has been denied "as instructed by defendant Bernardi regardless of the circumstances, evidence, and truth." AC ¶ 43.
Once again, plaintiff alleges violations of due process, equal protection, and access to courts. The facts asserted by plaintiff do not state a claim under any of these provisions. As stated above, since grievance procedures are not constitutionally required, a claim that defendants are not handling grievances properly does not rise to the level of a constitutional violation. In any event, plaintiff's conclusory claim that every grievance that he has written for a two year period was denied by the named defendants due to a memorandum written by defendant Bernardi is simply insufficient to state any claim against any of the individual defendants that he names in this paragraph of the complaint.
The Second Circuit has repeatedly held that "complaints relying on the civil rights statutes are insufficient unless they contain some specific allegations of fact indicating a deprivation of rights, instead of litany of general conclusions that shock but have no meaning." Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987) (citing Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir. 1972)). See also Brown v. City of Oneonta, 235 F.3d 769, 773 (2d Cir. 2000) (citing Kern v. City of Rochester, 93 F.3d 38, 44 (2d Cir. 1996) (quoting Butler v. Castro, 896 F.2d 698, 700 (2d Cir. 1990) ("It is well-settled in this court that '[a] conclusory allegation without evidentiary support or allegations of particularized incidents, does not state a valid claim.'")).
In this section of the amended complaint, plaintiff has done exactly as Barr prohibits. Plaintiff has cited to an alleged memorandum, and has stated that the defendants named in the paragraph are all responsible for the denial of every grievance and complaint that plaintiff filed over a two year period. Thus, plaintiff's final claim may be dismissed.
11. Conclusion
This court is recommending dismissal as to most of the claims in this action, however, because the plaintiff is pro se, great liberality must be afforded to him. The Second Circuit has held that when the court dismisses a pro se action on the pleadings, the plaintiff should be given an opportunity to amend his complaint to state a claim. See Frasier v. General Electric Co., 930 F.2d 1004, 1007 (2d Cir. 1991) (citations omitted) (court should not dismiss without granting leave to amend at least once when the complaint gives "any indication" that a valid claim may be stated).
In this case, the court is well-aware that plaintiff has already been given one opportunity to amend, and some of the claims should be dismissed with prejudice because there is no possibility that a claim will be stated. However, in an abundance of caution, this court will outline the claims that remain, and those which plaintiff may attempt to amend to state a claim.
First, the complaint should be dismissed in its entirety with prejudice as against defendants Malone and Collyer. Defendant Malone is deceased. Every effort has been made to assist plaintiff in serving defendant Collyer. Although, generally a dismissal for failure to serve would be without prejudice, it is apparent that defendant Collyer will not be able to be found. In a letter from Anthony J. Annucci, Deputy Commissioner and Counsel, dated July 26, 2004, he explained that DOCS had attempted to contact defendant Collyer twice by mail at two different addresses. (Dkt. No. 48). The first letter was sent back to DOCS with a new address for defendant Collyer, however, the second letter mailed to the new address was sent back with the comment, "moved, left no address." Id. Thus, it is highly unlikely that defendant Collyer will ever be served, and this court will recommend dismissal with prejudice as to this defendant.
The court would also point out that the complaint would have been dismissed as against defendant Collyer on the merits as well.
1. Section A:
This court must recommend dismissal with prejudice as to the entire section and the defendants named in this section since the statute of limitations has clearly run on all allegations that plaintiff made in paragraphs 4-11 of the amended complaint. Thus, dismissal with prejudice of plaintiff's CMC classification claims is recommended. Since the only claims against defendants Vann, Cirincione, and Travis are contained in this section, the entire complaint may be dismissed with prejudice as to these three defendants.
2. Section B
This court recommends that the amended complaint be dismissed with prejudice as to defendants Mueller and Catalfamo. The only claim stated against Mueller is that he made verbal threats to remove plaintiff from his position. Verbal threats cannot be the basis for liability under section 1983. The only claim as against defendant Catalfamo is that he made a hearing tape malfunction.
The plaintiff's claims of sexual harassment may be dismissed with prejudice as against defendants Prevost and Griffin. Because the only complaints made against defendant Griffin are in the nature of sexual harassment, the amended complaint may be dismissed in its entirety as to Griffin. The plaintiff's retaliation claims against defendants Bernardi and Eagen may be dismissed with prejudice since there is absolutely no connection between plaintiff's activities and these defendants. AC ¶ 16. Plaintiff's claims of retaliation as against defendants Prevost, Reams, Perry, Hurlburt, and Doling may be dismissed without prejudice, although this court has serious doubts that plaintiff can make claims against these individuals based upon the facts stated. Plaintiff's due process claims against defendant Doling as a hearing officer may also be dismissed without prejudice, although again, the court has doubts as to the viability of any due process claims.
To the extent that plaintiff attempts to claim a violation under State law against defendant Doling, that claim may be dismissed with prejudice.
Plaintiff's retaliation claims in section B of the amended complaint may also be dismissed with prejudice as against Goord and Duncan since plaintiff claims merely that his complaint against defendants Reams and Perry went "unanswered." AC ¶ 18. Plaintiff's claims as against defendants Goord, Selsky, Duncan, Carpenter, and Potter in ¶ 22 of the amended complaint may be dismissed without prejudice.
Defendant Malone was the third defendant mentioned in this paragraph of the complaint, but as stated above, he must be dismissed because he is deceased and was never served in this action.
3. Section C
This court recommends dismissal without prejudice as to defendants Michael, LaCroix, Headley, Carpenter, Plescia, Vanguilder, and Smith. The court recommends dismissal with prejudice as against defendants Paolano and Nunez.
4. Section D:
The court will recommend dismissal with prejudice as to defendants Quinn and Corrigan.
5. Section E:
The court is not recommending dismissal of the claims in this section as against defendants Allen, Copeland, and Birrell.
6. Section F:
The court is recommending dismissal with prejudice of the claims in paragraph 40 of the amended complaint as to defendants Duncan, Potter, and Perry.
7. Section G:
The court is recommending dismissal of this entire section as to all defendants with prejudice.
Although this court is recommending dismissal of many of plaintiff's claims without prejudice, the court is making no findings regarding the merits of any of plaintiff's claims, and in fact, notes that there is serious doubt regarding the viability of any of the claims in which the court recommends dismissal without prejudice. Plaintiff is admonished that if the District Court adopts this recommendation, and plaintiff chooses to submit another amended complaint for this court's review, he must abide by the court's rulings, and submit only the amendments that will cure the defects in the amended complaint and may not repeat any claims against any defendants that the court has found insufficient. Additionally, the court will review any amended complaint prior to filing.
WHEREFORE, based on the findings above, it is
RECOMMENDED, that defendants motion for summary judgment (Dkt. No. 59) be GRANTED IN PART AND DENIED IN PART, and it is
RECOMMENDED, that the complaint be DISMISSED IN ITS ENTIRETY WITH PREJUDICE as to defendants MALONE, COLLYER, VANN, CIRINCIONE, TRAVIS, MUELLER, Catalfamo, GRIFFIN, PAOLANO, NUNEZ, QUINN, and CORRIGAN, and it is
RECOMMENDED, that plaintiff's claim of sexual harassment in ¶ 15 of the amended complaint be DISMISSED WITH PREJUDICE, and that plaintiff's claims of retaliation in ¶ 18 of the complaint be DISMISSED WITH PREJUDICE as against defendants GOORD and DUNCAN, and plaintiff's claims of retaliation in ¶¶ 16, 22 of the complaint be DISMISSED WITHOUT PREJUDICE as against defendants PREVOST, REAMS, PERRY, HURLBURT, DOLING, GOORD, SELSKY, DUNCAN, CARPENTER, and POTTER, and it is RECOMMENDED, that the claim in section C, ¶¶ 23-25 of the amended complaint be DISMISSED WITH PREJUDICE as to defendant MICHAEL, and the claims in ¶¶ 27-28 DISMISSED WITH PREJUDICE as to defendants MICHAEL and LACROIX, and that the retaliation claim in ¶ 29 of the amended complaint be DISMISSED WITHOUT PREJUDICE as to defendants MICHAEL, HEADLEY, CARPENTER, PLESCIA, VANGUILDER, and SMITH, and it is
RECOMMENDED, that the all claims in sections F and G of the complaint be DISMISSED WITH PREJUDICE AS TO ALL DEFENDANTS, and it is
RECOMMENDED, that defendants' motions to dismiss be DENIED, as to the claims in section E of the complaint as against DEFENDANTS ALLEN, COPELAND, and BIRRELL (the only defendants named in this section).
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have ten 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 TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72.