Opinion
98 Civ. 6721 (TPG)
August 31, 2000
Larry McKnight, DIN: 87A3132, Washington Correctional Facility, Comstock, N.Y. for Oyague.
Rebecca Ann Durden, Assistant Attorney General, New York, N.Y. for State of New York.
This is an action by a state prisoner suing pro se. The action is brought under 42 U.S.C. § 1983 and 1985(3) and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., against the State of New York and officers at the Green Haven Correctional Facility. Plaintiff also refers to the Rehabilitation Act, 29 U.S.C. § 701 et seq. as a basis for the action.
Before the court are two motions to dismiss the complaint under Fed.R.Civ.P. 12(b)(1) and 12(b)(6). One is a motion to dismiss made by defendants State of New York, First Deputy Superintendent Bilden, Captain Morton, Lt. Haubert (incorrectly named as "Haulbert"), and Correction Officers ("COs") Leete (incorrectly named as "Leetz") and Sneddon. The other motion to dismiss is on behalf of defendant CO D'Angelico, who was not served until after the first motion to dismiss was filed. The issues in the two motions are basically the same. CO Denton, the remaining defendant, has never been served with the summons and complaint.
Plaintiff has responded to these motions with an affidavit and an affirmation. These contain plaintiff's arguments on the law, as well as presenting certain additional factual allegations. Accompanying plaintiff's response is a motion for preliminary injunction supported by a short affidavit.
There is also a motion for appointment of counsel.
Defendants' motions to dismiss the complaint are granted.
Plaintiff's motions for preliminary injunction and appointment of counsel are denied.
Plaintiff's Claims The following is a summary of plaintiff's complaint and of the factual allegations in plaintiff's affidavit and affirmation. These are not factual findings by the court.
Plaintiff is an inmate at the Green Haven Correctional Facility in Stormville, New York. He arrived at Green Haven on January 23, 1998 from another facility. On February 12, 1998 CO Denton ordered plaintiff to give a urine sample. Plaintiff explained that he had given a sample about four days earlier, but Denton directed that he submit a new sample. Plaintiff has a handicap in that he experiences "stage freight," which makes it difficult for him to give a urine sample. At the prior urine testing he had been laughed at, harassed and threatened with a charge of misbehavior for not being able to perform. In view of his personal handicap, plaintiff requested CO Denton to use a blood test instead of a urine test, which Denton refused. On February 12 he gave a small sample in the last minute of the 3 hours allowed for the test.
Denton wrote plaintiff up for misbehavior. He was found guilty and given 120 days keeplock, 120 days loss of commissary and other privileges, and 120 days loss of good time.
The policy of requiring urine samples gives prison officers a green light to harass inmates by laughing and joking about their sex organs and by intimidating those who cannot perform. Also, inmates are needlessly harassed by random testing which can sometimes be as frequent as two or three times a week.
Documents attached to the complaint show (1) that CO Denton reported on February 12, 1998 that plaintiff had disobeyed a direct order and had refused to provide a urine sample; (2) that there was a hearing on February 17, 1998, at which plaintiff was found guilty and sentenced as stated in the complaint; and (3) that on April 10, 1998 the disciplinary findings and remedy were reversed.
Other documents attached to the complaint show that on April 6, 1998 CO Sneddon filed a misbehavior report charging plaintiff with falsifying the loss of this I.D. card and then abusing CO Sneddon with obscene language; that on April 11, 1998 Lt. Haubert presided over a hearing on these charges and found plaintiff guilty, sentencing plaintiff to 30 days keeplock. Plaintiff's affidavit states that at the April 11 hearing there was testimony by a correction officer to the effect that plaintiff never made any statement about his ID card, which testimony contradicted the allegation that plaintiff made a false statement. Plaintiff claims that this should have also "nullified" the charge that he used obscene language. Lt. Haubert's finding was thus unjustified and was part of a conspiracy to prosecute plaintiff.
According to plaintiff's complaint, the charges filed by CO Sneddon were in retaliation for grievances plaintiff wrote against Sneddon.
Returning to the factual allegations in the complaint, on April 11, 1998 CO Leete escorted plaintiff to the package room to pick up packages which had been mailed to plaintiff. Plaintiff was asked if he had a package restriction, which he denied. The officer in charge of the package room examined the record which showed that plaintiff was restricted from receiving packages under the discipline imposed on February 17. The April 10 reversal had not yet been circulated. Plaintiff was given a misbehavior report charging him, among other things, with giving false and misleading information. The matter was heard by Lt. Haubert on April 19, 1998, and Haubert's disposition report is an exhibit to the complaint, according to which plaintiff admitted telling an officer he had no loss of packages although an appeal he won had not yet been served or put into effect and plaintiff was unaware of the reversal.
Plaintiff was given 15 days keeplock and 30 days loss of privileges. Plaintiff appealed from the discipline relating to the April 11 incident, and Acting First Deputy Superintendent Bilden affirmed the action of Lt. Haubert.
According to the complaint and plaintiff's affidavit and affirmation, the misbehavior report of April 11 was part of a conspiracy between CO Leete and CO Sneddon, which was ultimately joined in by Lt. Haubert and Deputy Superintendent Bilden. Plaintiff claims that he should have been exonerated regarding the April 11 incident because the prison was at fault in not giving timely circulation to the information about the reversal of the February 17 sanction.
A misbehavior report dated June 23, 1998 is attached to the complaint, in which CO D'Angelico reported that during a routine pat frisk, D'Angelico saw plaintiff drop a paper, which plaintiff tried to cover with his foot. Then D'Angelico opened the paper and found six percocet tablets, for which plaintiff did not have a prescription. Plaintiff was charged with possessing unauthorized medication. As of the time the present lawsuit was commenced, the June 23 charge had been resolved. However, the complaint in the present action, dated June 24, 1998, states that plaintiff was in keeplock awaiting the disposition of the charge. Plaintiff's affidavit and affirmation, both dated about a year later on July 14, 1999, do not say how the June 23, 1998 misbehavior report had been resolved. In any event, plaintiff alleges that the allegations in the June 23, 1998 report were false and were part of a continuing conspiracy to harass him.
Plaintiff claims that the enforcement of the urine sample procedure against him at Green Haven, in view of his difficulty in producing urine, is a violation of the Americans with Disabilities Act. He further alleges that punishment for failure to produce a sample was a violation of his civil rights.
Plaintiff also refers to the Rehabilitation Act.
Aside from claiming that the February 12, 1998 misbehavior report improperly penalized him for a disability, plaintiff claims that the misbehavior reports were harassment and malicious prosecution in retaliation for his filing grievances about showers and religious services and the writing of complaint letters to the superintendent.
In the portion of the complaint listing plaintiff's injuries, he alleges that he takes depression medication and "these events at Green Haven have exacerbated my mental anguish."
Plaintiff seeks injunctive relief against subjecting plaintiff to urine tests, and requests direction that an alternative, such as blood sampling, should be employed. Plaintiff also seeks injunctive relief expunging his misbehavior reports for the seven months prior to the commencement of this action. He also seeks compensation of $500 per day for the approximately 110 days he was in keeplock. Finally, he seeks compensatory and punitive damages for "mental anguish and cruel and unusual punishment" in the amount of $1,500,000.
Discussion Urinalysis Testing Random urinalysis testing has been upheld as constitutional under the Fourth, Fifth, and Fourteenth Amendments as an effective means for detecting and deterring prison drug use. See Storms v. Coughlin, 600 F. Supp. 1214 (S.D.N.Y. 1984).
Plaintiff's principal claim is that due to his anxiety and difficulty producing a urine sample, the urinalysis testing program violates the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq.
However, the ADA does not apply to this case. Plaintiff cites no section of the ADA in arguing that the Act requires the prison to refrain from urinalysis or to provide some other kind of testing for drugs. Plaintiff refers to §§ 121014(4) and 12102(2). The first is merely part of the findings of Congress about the need for a remedy for those discriminated against because of disability. The second contains the definition of disability as follows:
The term disability means, with respect to an individual; (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.
Plaintiff's alleged difficulty in producing a urine sample is not a disability within the meaning of the statute.
Plaintiff, in his motion papers, also makes an unexplained reference to the Rehabilitation Act. 29 U.S.C. § 701 et seq. This Act has no application to the present case. The Act provides various ways in which the Federal Government is to promote the return of disabled people to employment and independent living. Plaintiff's claim in this case does not fall under the Rehabilitation Act in any respect.
Sections 1983 and 1985 Claims Plaintiff asserts claims under both 42 U.S.C. § 1983 and 42 U.S.C. § 1985. To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that a person acting under color of state law deprived him of a right, privilege, or immunity secured by the Constitution, laws, or treaties of the United States. Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993). "Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere." Sykes, 13 F.3d at 519. See also Hernandez v. Pierce, 512 F. Supp. 1154, 1158 (S.D.N.Y. 1981).
Plaintiff's 1983 claims are that false charges were filed against him in retaliation for writing grievance letters. Pursuant to 42 U.S.C. § 1983, a retaliation claim by a prisoner may be maintained "if otherwise routine administrative decisions are made in retaliation for the exercise of constitutionally protected rights." LaBounty v. Gomez, 1997 WL 104959, at *5 (S.D.N.Y.). However, the Second Circuit has recognized that retaliation claims by prisoners are prone to abuse and that because retaliation claims may easily be fabricated, they should be viewed "with skepticism and particular care." Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). A complaint that is wholly conclusory can be dismissed on the pleadings. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996).
In the present case the complaint is in conclusory terms about a large conspiracy against him by prison officers. It is true that plaintiff asserts that he had submitted grievances and other complaints to the prison administration. But there is nothing but the barest conclusory allegations that a conspiracy existed to retaliate against him for these grievances and complaints by means of misbehavior reports. Moreover, the misbehavior reports were, on their face, careful in their recital of violations of prison rules.
Hearings were held. In one case a finding against plaintiff was reversed on appeal. Plaintiff's complaint, including the documents attached, does not constitute a sufficient pleading of the claim of retaliation.
Plaintiff also alleges that defendants conspired, in violation of 42 U.S.C. § 1985(3), to deprive him of his civil rights. Section 1985(3) prohibits conspiracies undertaken for the purpose of depriving, directly or indirectly, any person or class of persons of equal protection or privileges under the law. To assert a claim under § 1985(3), a plaintiff must demonstrate:
(1) a conspiracy;
(2) that the conspiracy was for the purpose of depriving any person or class of persons of equal protection of laws or of equal privileges or immunities under the law;
(3) that the defendants acted in furtherance of the conspiracy;
(4) that the plaintiff was either injured in his person or property or deprived of a right of a citizen of the United States as a result of these actions; and
(5) that defendants acted with class-based discriminatory animus.
James v. Artuz, 1998 WL 50206, *4 (S.D.N.Y.). See also Jackson v. City of New York Dep't of Sanitation, 1996 WL 571870, *13 (S.D.N.Y.). Claims under § 1985(3) require more than mere conclusory allegations. "Vague allegations of a conspiracy without pleading any overt acts or providing a basis in fact are insufficient." James at *5. See also Polur v. Raffe, 912 F.2d 52, 56 (2d Cir. 1990). In short, a plaintiff is required to posit substantial facts that give rise to an inference of a meeting of the minds of the alleged conspirators. James at *5. See also Repasky v. Orzel, 1991 WL 33173, at *4 (N.D.N.Y.).
Plaintiff's complaint falls short of this standard. He has failed to offer any factual allegations supporting the theory of the existence of any agreement by defendants to deprive plaintiff of rights or privileges. Plaintiff does not allege a single fact upon which one could infer that a conspiracy existed. Plaintiff merely offers conclusory accusations of a conspiracy.
Additionally, under the Prisoner Litigation Reform Act (PLRA), 24 U.S.C. § 1997e(e), no "Federal civil action may be brought by a prisoner . . . for mental or emotional injury suffered while in custody without a prior showing of physical injury." See Harris v. Lord, 957 F. Supp. 471, 474 (S.D.N.Y. 1997).
This invalidates plaintiff's claim for emotional distress because no physical injury is alleged or suggested.
Eleventh Amendment Defendants also argue that the Eleventh Amendment prevents plaintiff from suing the State of New York in federal court. The Supreme Court has held that a state cannot be sued under 42 U.S.C. § 1983 unless it has waived its Eleventh Amendment immunity or Congress has passed legislation legitimately overriding that immunity. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 66 (1989); Quern v. Jordan, 440 U.S. 332, 341 (1979).
See also Santiago v. New York State Dep't of Correctional Servs., 945 F.2d 25, 28 n. 1 (2d Cir. 1991); Proctor v. Vadlamudi, 992 F. Supp. 156, 158-59 (N.D.N.Y. 1998); DeWitt v. Fenton, 1991 WL 17869 at *1 (S.D.N.Y.).
Consequently, as New York State has not waived its immunity and Congress has not abridged it, New York is immune from suit in this court.
Conclusion
For the foregoing reasons, the motions to dismiss the complaint as to the moving defendants is granted. Plaintiff's motions for preliminary injunction and appointment of counsel are denied.
SO ORDERED.