Opinion
No. 04-CV-0293E.
August 31, 2004
DECISION and ORDER
INTRODUCTION
Plaintiff Julio Paredes, an inmate of the Attica Correctional Facility, has filed this pro se action seeking relief under 42 U.S.C. § 1983 (Docket No. 1). After being directed to file a supplemental application to proceed in forma pauperis or pay the filing fee because the initial application to proceed in forma pauperis was inadquate (Docket No. 3), Plaintiff paid the filing fee. Plaintiff claims that the Defendants, supervisory and non-supervisory employees, of the New York State Department of Correctional Services, violated his constitutional rights when, following an alleged assault by one of the correctional officer Defendants (Bochynski) for which he filed grievances, he was harassed and retaliated against as a result of the grievances he filed. The allegations of retaliation include denials of access to the law library (Chlobowy), denial of sick calls (Hunter), and denial of adequate medical care (Clain, Giemla, Mental Health Doctor and John and Jane Does # 1-10). For the reasons discussed below, several of Plaintiff's claims are dismissed pursuant to 28 U.S.C. § 1915A.
DISCUSSION
Section 1915A(a) of 28 U.S.C. requires the Court to conduct an initial review of "a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." Regardless of whether the inmate has sought in forma pauperis status under 28 U.S.C. § 1915, § 1915A requires that the Court dismiss a claim or the action "if the Court determines that . . . (b) the action . . . (1) is frivolous, malicious or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a Defendant who is immune from such relief." Id. Plaintiff, who has paid his filing fee in full and thus has not sought in forma pauperis status in this action, does seek redress from a governmental entity or officer and/or employee of a governmental entity and his Complaint therefore is subject to the initial review of the Court.
In evaluating the Complaint, the Court must accept as true all factual allegations and must draw all inferences in Plaintiff's favor. See King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999). Dismissal is not appropriate "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." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed.2d 80 (1957); and see Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998).
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. "To state a valid claim under 42 U.S.C. § 1983, the plaintiff must allege that the challenged conduct (1) was attributable to a person acting under color of state law, and (2) deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States." Whalen v. County of Fulton, 126 F.3d 400, 405 (2d. Cir. 1997) (citing Eagleston v. Guido, 41 F.3d 865, 875-76 (2d Cir. 1994)). Based on its evaluation of the Complaint, the Court finds that several of Plaintiff's claims must be dismissed pursuant to 28 U.S.C. § 1915A(b) because they fail to state a claim upon which relief may be granted.
A. Plaintiff's Allegations
Plaintiff alleges that shortly after his transfer to the Attica Correctional Facility he was assaulted by Defendant Bochynski, after which he filed a grievance and complaint with Defendants Goord and Conway. Following the filing of the grievance and complaint, he alleges that Defendant Bochynski advised other correctional officers, including Defendants Chlowoby and Hunter, to deny Plaintiff all privileges, and that he was retaliated against in different ways by Defendants. He claims that Defendant Chlobowy would not sign his library call-out slips thereby denying him access to the law library; that Defendant Hunter threw out his sick-call slips thereby denying him access to medical care; that Defendant Martinez deliberately mistranslated a complaint and verbally harassed him; and that Defendants Drs. Clain and Giemla, Mental Health Doctor and Jane and John Does # 1-10 denied him medical care. The only allegations of denial of medical care, however, are that Drs. Clain and Giemla released his medical records to the other Defendants and that Dr. Giemla removed him from his long-time prescribed medication.
It is well established that prison officials may not retaliate against inmates for exercising their constitutional rights. See, e.g., Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995); Franco v. Kelly, 854 F.2d 584, 589 (2d Cir. 1988). To state a retaliation claim under § 1983, "a plaintiff must show that: (1) his actions were protected by the Constitution or federal law; and (2) the defendant's conduct complained of was in response to that protected activity." Friedl v. City of New York, 210 F.3d 79, 85 (2d Cir. 2000) (internal quotation and citation omitted).
Because claims of retaliation are easily fabricated, the courts must "examine prisoners' claims of retaliation with skepticism and particular care," Colon, 58 F.3d at 872, requiring "`detailed fact pleading . . . to withstand a motion to dismiss.'" Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983) (quoting Angola v. Civiletti, 666 F.2d 1, 4 (2d Cir. 1981)). To survive a motion to dismiss, such claims must be "`supported by specific and detailed factual allegations,'" and not stated "`in wholly conclusory terms.'" Friedl, 210 F.3d at 85-86 (quoting Flaherty, 713 F.2d at 13); see also Graham, 89 F.3d at 79 (wholly conclusory claims of retaliation "can be dismissed on the pleadings alone"); Gill v. Mooney, 824 F.2d 192, 194 (2d Cir. 1987) (same).
Moreover, only those retaliatory acts that are likely to "chill a person of ordinary firmness from continuing to engage" in activity protected by the First Amendment are actionable under § 1983; in other words, allegations of de minimis acts of retaliation do not state a claim under § 1983. Thaddeus-X v. Blatter, 175 F.3d 378, 397 (6th Cir. 1999) (cited with approval in Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001)). See Davidson v. Chestnut, 193 F.3d 144, 150 (2d Cir. 1999) (on remand, district court to consider the "serious question" of "whether the alleged acts of retaliation . . . were more than de minimis" in deciding summary judgment motion). A de minimis retaliatory act is outside the ambit of constitutional protection. Dawes, 239 F.3d at 492. "This objective inquiry is `not static across contexts,' but rather must be `tailored to the different circumstances in which retaliation claims arise.'" Id. (quoting Thaddeus-X, 175 F.3d at 398). "`Prisoners may be required to tolerate more than public employees, who may be required to tolerate more than average citizens, before a [retaliatory] action taken against them is considered adverse.'" Id.
1. Claims against Defendants Goord and Conway
The claims against Defendants Goord and Conway must be dismissed because there are no allegations that these Defendants were personally involved in any of the alleged unconstitutional acts set forth in the Complaint. Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997); Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986). See also Colon v. Coughlin, 58 F.3d 865, 874 (2d Cir. 1995) ("The bare fact that [the defendant] occupies a high position in the New York prison hierarchy is insufficient to sustain [plaintiff's] claim.").
2. Claims of retaliation
The retaliation claims against Defendants Bochynski, Chlowoby, Hunter, and Martinez and Drs. Clain and Giemla, which allege that Plaintiff was denied the ability to use the law library and sick-call procedure, that Martinez, as a spanish interpreter, deliberately mis-translated complaints made by Plaintiff and deliberately mis-stated complaints made by Plaintiff in an investigation report regarding Plaintiff's initial complaint, and that his medical records were released and his medication was stopped, while fairly conclusory in terms of their relatedness to the filing of Plaintiff's grievances and complaints and whether or not they are sufficient to rise to the level of actionable retaliation, cannot be dismissed at the screening stage of this litigation because the Court cannot say that "it appears beyond doubt that the plaintiff can prove no set of facts in support of his [retaliation] claim[s] which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). However, all other claims of retaliation, including the claims against Defendants Mental Health Doctor and Jane and John Does # 1-10, must be dismissed because they are set forth in wholly conclusory terms and do not identify or allege what specific conduct these Defendants engaged in which Plaintiff claims was taken in retaliation for his grievances.
CONCLUSION
For the reasons discussed above, Plaintiff's claims against Defendants New York State Department of Correctional Services, Goord and Conway, Plaintiff's claims against all Defendants in their "official" capacity and Plaintiff's claims of retaliation against Defendants Mental Health Care Doctor and Jane and John Does # 1-10 and all other claims of retaliation, except those against Defendants Bochynski, Chlowoby, Hunter, and Martinez, and Drs. Clain and Giemla, which allege that Plaintiff was denied the ability to use the law library and the sick-call procedure, that Martinez, as a spanish interpreter, deliberately mistranslated complaints made by Plaintiff and deliberately mis-stated complaints made by Plaintiff in an investigation report regarding Plaintiff's initial complaint, and that his medical records were released and his medication stopped, are dismissed with prejudice pursuant to 28 U.S.C. § 1915A.
The Eleventh Amendment bars federal courts from exercising subject matter jurisdiction over claims against states absent their consent to such suit or an express statutory waiver of immunity. See Pennhurst State School Hospital v. Halderman, 465 U.S. 89, 98-100, 104 S. Ct. 900, 79 L. Ed.2d 67 (1984). It is well-settled that states are not "persons" under § 1983, and thus Eleventh Amendment immunity is not abrogated by that statute. Will v. Michigan Dept. of State Police, 491 U.S. 58, 65-66, 109 S. Ct. 2304, 105 L. Ed.2d 45 (1989). The Eleventh Amendment bar extends to agencies and officials sued in their official capacities. Kentucky v. Graham, 473 U.S. 159, 166, 105 S. Ct. 3099, 87 L. Ed.2d 114 (1985). Therefore, the claims against the Defendants in their official capacity and the claims against the New York State Department of Correctional Services, an agency of the State of New York, must be dismissed pursuant to 28 U.S.C. § 1915A.
ORDERS
IT HEREBY IS ORDERED, that Plaintiff's claims against Defendants New York State Department of Correctional Services, Goord and Conway, Plaintiff's claims against all Defendants in their "official" capacity, and Plaintiff's claims of retaliation against Defendants Mental Health Care Doctor and Jane and John Does # 1-10 and all other claims of retaliation, except those against Defendants Bochynski, Chlowoby, Hunter, and Martinez, and Drs. Clain and Giemla, which allege that Plaintiff was denied the ability to use the law library and the sick-call procedure, that Martinez, as a spanish interpreter, deliberately mistranslated complaints made by Plaintiff and deliberately mis-stated complaints made by Plaintiff in an investigation report regarding Plaintiff's initial complaint, and that his medical records were released and his medication stopped, are dismissed with prejudice;
FURTHER, that the Clerk of the Court is directed to terminate Defendants New York State Department of Correctional Services, Glenn Goord, James T. Conway, Mental Health Doctor and Jane and John Does # 1-10 as parties to this action;
FURTHER, that because Plaintiff paid the filing fee, he is responsible for service of the Summons, Complaint, and this Order on Defendants Correctional Officers Bochynski, Hunter and Chlobowy, Sergeant Martinez and Drs. Clain and Giemla. The Court notes that Plaintiff is an inmate of a correctional facility who is proceeding pro se, and thus he may wish to request service by the United States Marshal at a nominal cost, as explained in the attached information. Should Plaintiff choose to do so, he should utilize the attached Application for an Order Directing Service by the U.S. Marshal. The Clerk of the Court is directed to issue the summonses and send them to Plaintiff together with this order.
FURTHER, that pursuant to 42 U.S.C. § 1997e(g)(2), the Defendants are directed to answer the Complaint.
SO ORDERED.