Summary
holding that the plaintiff failed to allege an excessive force claim where he was "dragged from his cell into a corridor" but did not allege that he "suffered any injury or pain during the ... incident" aside from a general allegation in the complaint that he suffered "pain and suffering"
Summary of this case from Jones v. Westchester Cnty.Opinion
11 Civ. 4617 (JPO) (FM)
08-28-2012
ANGEL ROSARIO, Plaintiff, v. BRIAN FISCHER, Commissioner, State of New York Department of Corrections and Community Supervision, et al., Defendants.
Copies to: Angel Rosario 7 East 116th Street Apartment 8F New York, New York 10029 Inna Reznick Assistant Attorney General Office of the Attorney General of the State of New York 120 Broadway New York, New York 10271 Melanie Mary Speight/ Max Oliver McCann Assistant Corporation Counsel New York City Law Department 100 Church Street New York, New York 10007
REPORT AND RECOMMENDATION TO THE HONORABLE J. PAUL OETKEN FRANK MAAS, United States Magistrate Judge.
Plaintiff Angel Rosario ("Rosario") brings this pro se action, pursuant to 42 U.S.C. § 1983, against employees of the New York State Department of Corrections and Community Supervision ("DOCCS") and the New York City Department of Correction ("DOC"), alleging that they violated his constitutional rights during his detention at the Southport Correctional Facility ("Southport") and the "Rikers Correctional Facility" ("Rikers"). Specifically, Rosario contends that DOCCS Commissioner Brian Fischer ("Fischer"), Southport Deputy Superintendent for Programs A. Bartlett ("Bartlett"), Southport Inmate Record Coordinator Diane Kelly ("Kelly") (collectively, the "State Defendants"), and other unidentified DOCCS employees, damaged and lost his personal property, thereby depriving him of access to the courts and due process. Additionally, Rosario contends that Deputy Warden for Security at the Otis Bantum Correctional Center ("OBCC") Thomas Hall ("Hall") and DOC Commissioner Dora B. Schriro ("Schriro") (together, the "City Defendants"), and other unidentified DOC employees, deprived him of his constitutional rights at Rikers by mishandling his property, confining him to a punitive segregation housing unit without due process, and subjecting him to excessive force. (See ECF No. 2 ("Complaint" or "Compl.")). Finally, Rosario alleges that the State and City Defendants (together, the "Defendants") infringed his constitutional rights by violating a state court order that he be dressed in civilian clothing and held by DOCS, rather than DOCCS. The Defendants separately have moved to dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (ECF Nos. 17, 26). For the reasons set forth below, I recommend that both motions be granted, but that Rosario be permitted to file an amended complaint if he can cure the deficiencies noted in this Report and Recommendation.
The copy of the Complaint initially filed with the Court was missing several pages. By Order dated May 24, 2012, I directed Rosario to file any missing pages within two weeks. (ECF No. 32). On May 30, 2012, Rosario filed some of the missing pages with the Court, but served complete copies of the missing pages on counsel for the Defendants. Counsel for the City Defendants then submitted those papers to my Chambers. The full Complaint has now been docketed as ECF No. 2.
Appended to Rosario's form Complaint are several documents, including a "Statement of Claim" ("Stmt."), an "Attachment of Facts" with enumerated paragraphs ("Attach."), and an affidavit from Rosario's mother, Miriam Marrero-Bayron, sworn to on May 23, 2011 ("Marrero-Bayron Aff."). Citations to "Ex." refer to the exhibits that follow these documents.
I. Background
A. Facts
Unless otherwise indicated, the following facts are either undisputed or set forth in the light most favorable to Rosario.
On July 18, 2006, Rosario was convicted of Sexual Conduct against a Child in the First Degree, Rape in the First and Second Degrees, and Incest in the Third Degree after a jury trial in Supreme Court, New York County, and sentenced to an aggregate prison term of fifteen years. People v. Rosario, 892 N.Y.S.2d 338, 339 (1st Dep't 2009), aff'd, 17 N.Y.3d 501, 515 (2011). On December 22, 2009, while Rosario was serving that sentence at Southport, a DOCCS facility, the Appellate Division, First Department, reversed his conviction and ordered a new trial. (Id.; Attach. ¶ 1). Accordingly, on January 11, 2010, Justice Juan M. Merchan ordered the Superintendent of Southport to "deliver [Rosario], in civilian clothes," to DOC custody, so that he could attend court to be remanded for a new trial. (Ex. AA). Justice Merchan further directed that DOC produce Rosario "in civilian clothes" for a hearing on February 8, 2010, and "keep him available for further court proceedings." (Id.). The order specified that DOC was not to return Rosario to State custody unless directed by the court. (Id.).
1. Confinement in DOC Central Punitive Segregation Unit
While he was in DOCCS custody, Rosario was housed in a special housing unit ("SHU") segregated from the general prison population. (See Attach. ¶ 2). Following the reversal of his conviction, DOCCS transferred Rosario to Rikers, a DOC facility, on February 4, 2010. (Id. ¶ 6). Rosario alleges that DOCCS and DOC had an "agreement" whereby inmates housed in a DOCCS SHU automatically were assigned to a DOC Central Punitive Segregation Unit ("CPSU") upon their transfer. (See id. ¶¶ 2, 6). Pursuant to this alleged agreement, Rosario was confined in the CPSU at the OBCC for approximately thirty-four days, even though he had not violated any DOC rules. (Id.). Rosario was subject to numerous restrictions due to his assignment to the CPSU. For example, Rosario could not wear civilian clothing and thus had to make court appearances, including attendance at his hearing on February 8, 2010, wearing a prisoner uniform. Rosario also could not attend Catholic Mass, confess, receive communion, or obtain religious reading material. While in the CPSU, Rosario also did not receive meals that were appropriate for a diabetic, as recommended by his medical provider. Additionally, rather than being provided with a personal supply of toilet paper and toothpaste, Rosario was required to request these items as needed. He further was denied such cleaning tools as a toilet brush. (Stmt. at 3; Attach. ¶ 2).
On February 20, 2010, Rosario "submitted a serie[]s of letter[]s" to Schriro "looking for answers regarding [his] confinement status at 'CPSU.'" (Attach ¶ 8). Subsequently, on March 9, 2010, Rosario mailed a letter to Hall regarding his CPSU confinement. (Id. ¶ 11). Rosario submitted numerous other complaints and grievances concerning his assignment to units within DOC. (Id. ¶¶ 3, 10, 12).
2. Uses of Force by DOC Personnel
While Rosario was in DOC custody, DOC employees used physical force against him on at least three occasions: February 9, March 31, and October 23, 2010. (Id. ¶¶ 7, 15, 19, 43).
During the February 9 incident, an officer twisted Rosario's wrist while handcuffing him to transport him from a DOC bus to a court appearance. Rosario, who suffers from rheumatoid arthritis, asked the officer "to be careful with the handcuff, not being [too] tight." The officer then became "upset by the amount of time waiting and inmates pressing him, [and] cost his display." Rosario visited a clinic after the incident. (Attach. ¶ 7).
On March 31, 2010, Rosario was "assaulted" by two correction officers at the CPSU mini-clinic. Rosario has not provided any details regarding the alleged assault other than indicating that "physical abuse" and a "beating" was involved, but he also notes that "nothing serious" occurred. (Id. ¶¶ 15, 19).
On October 23, 2010, Rosario's cell was searched as part of a "tactical search operation." (Id. ¶ 43). After an officer discovered an expired bottle of medication, Rosario attempted to explain to the captain supervising the search that he took the medication only as needed. Because DOC does not permit prisoners to talk during cell searches, the captain ordered that Rosario be removed from his cell. Rosario then was ordered to face the wall and place his hands behind his back. Rosario turned to face the wall, but requested that his hands be cuffed in front of his body because he uses a cane. Rosario further explained that he had in his pocket a "medical permit" allowing him to use a cane and be front-cuffed. (Id.; Ex. T). The captain nonetheless handcuffed Rosario behind his back and ordered him to walk. When Rosario refused, explaining that he had a permit to use a cane to walk, the captain "drag[ged him] thru the hallway." (Attach. ¶ 43). In the middle of the hallway, the captain called for a wheelchair and placed Rosario in the chair with his hands still cuffed behind his back. (Id.).
3. Return of Property from Southport
Although Justice Merchan specifically ordered DOC not to return Rosario to DOCCS custody, (Ex. AA), on April 9, 2010, DOC transferred him from Rikers to Southport, where he arrived on April 12, 2010 (Attach. ¶ 17). On April 28, 2010, Rosario was returned to DOC custody at Rikers, but some of his personal property remained at Southport. (See id. ¶¶ 25, 26; Ex. I). On May 5, 2010, Rosario wrote to Southport requesting that his inmate account funds be forwarded to him at Rikers. (Attach. ¶ 26; Ex. J). By memorandum dated May 14, 2010, a supervising corrections counselor at Southport advised Rosario that "[u]ntil official documentation is received," DOC would continue to treat his status as "Out to Court" and, "[a]s such, none of [his] property, mail or funds could be forwarded to him." (Ex. J; see Attach. ¶¶ 24, 27). Thereafter, on May 25, 2010, Rosario requested that the First Department provide DOCCS with an original certified copy of its decision reversing his conviction. (Attach. ¶ 29). On or around June 22, 2010, Rosario wrote a letter to DOCCS in which he indicated that he had received a copy of the decision and requested that DOCCS change his status and that the property held at Southport be returned to him. (Id. ¶ 30; Ex. J).
On June 23, 2010, Rosario received a letter advising him that he would be released pursuant to a court order. (Attach. ¶ 31; Ex. A). The letter instructed Rosario to contact the Southport Inmate Records Coordinator to obtain his personal property and funds, but advised that Rosario would be responsible for any shipping costs. (See Ex. A). Rosario again contacted Southport requesting that his property be forwarded to him at Rikers. (Attach. ¶ 32). On July 9, 2010, Kelly sent Rosario "a partial delivery" of his mail, certain legal documents, and a check for the funds in his Southport inmate account. (Id. ¶ 33; Exs. N, P). Kelly shipped four additional boxes of property to Rosario on July 20, 2010, at a cost of $81. (Attach. ¶ 34). Personnel at Rikers returned these boxes to Southport, however, without notifying Rosario of their delivery. (Id. ¶¶ 35-37, 41).
After Rosario confirmed that the four boxes had been returned to Southport, he asked, by letter dated September 10, 2010, that Bartlett ship the boxes to Rosario's mother in Puerto Rico. (Id. ¶¶ 39-40; Ex. R). By memorandum dated September 21, 2010, Bartlett advised Rosario that the cost of shipping the boxes would be $164.53 and instructed Rosario to send a money order for that amount prior to shipment. (Attach. ¶ 41; Ex. V).
When Rosario's mother received the four boxes in September 2010, she found that the letters and legal documents in the boxes were "all over the place (i.e., letter[]s out of the envelop[e]s)," and that some documents had been "damage[d] or [were] missing." (Attach. ¶ 41; see Marrero-Bayron Aff. ¶ 1). She also found that a television worth $167 was missing from the boxes. (Attach. ¶ 41).
B. Procedural History
Rosario's Complaint, dated May 17, 2011, was received by the Pro Se Office of this Court on June 20, 2011. (See Compl. at 1, 7). On August 30, 2011, Judge Daniels, to whom this case then was assigned, referred the matter to me for general pretrial supervision and a report and recommendation regarding any dispositive motion. (ECF No. 10). The case subsequently was reassigned to Your Honor on October 6, 2011. (ECF No. 12).
On February 17, 2012, the State Defendants moved to dismiss all claims against them. (ECF No. 17). Subsequently, on March 23, 2012, the City Defendants filed their motion to dismiss the Complaint. (ECF No. 26). By memorandum endorsement dated March 30, 2012, Your Honor directed that Rosario serve and file his opposition papers by April 23, 2012. (ECF No. 29). Rosario has yet to file any substantive papers in opposition to the Defendants' motions. He instead merely notes in a letter to Your Honor, dated July 28, 2012, that Rule 8(a) of the FRCP requires only a "short and plain" statement of his claim and, on that basis, requests that the Court deny the Defendants' motions. (ECF No. 33 at 2).
II. Standard of Review
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure "tests the legal sufficiency of plaintiff's claim for relief." Krasner v. HSH Nordbank AG, 680 F. Supp. 2d 502, 511 (S.D.N.Y. 2010) (citing Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir. 2007)). A district court considering a motion under Rule 12(b)(6) must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam). The complaint need not contain "detailed factual allegations." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Nevertheless, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
To survive a motion to dismiss, the Complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). Determining whether the allegations of a complaint nudge a plaintiff's claims across the line from merely "conceivable to plausible" requires a court to "draw on its judicial experience and common sense." Id. at 679-80. In addition to the plaintiff's factual averments, a court may consider any written instrument upon which the plaintiff necessarily relies, whether it is attached to the complaint or incorporated by reference. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002). Legal conclusions masquerading as factual averments, however, may not be taken into account. Twombly, 550 U.S. at 555.
Because Rosario is proceeding pro se, the Court must read his Complaint "liberally" and interpret it "to raise the strongest arguments" that it may suggest. Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010). "Dismissal of a pro se complaint is nevertheless appropriate where a plaintiff has clearly failed to meet minimum pleading requirements." Rodriguez v. Weprin, 116 F.3d 62, 65 (2d Cir. 1997); accord Carvel v. Ross, No. 09 Civ. 722 (LAK) (JCF), 2011 WL 856283, at *8 (S.D.N.Y. Feb. 16, 2011).
III. Discussion
"To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 47 (1988); accord McKithen v. Brown, 481 F.3d 89, 99 (2d Cir. 2007). To survive a motion to dismiss, a complaint under § 1983 also must allege that a defendant was personally involved in depriving the plaintiff of his rights. Costello v. City of Burlington, 632 F.3d 41, 48-49 (2d Cir. 2011) (citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)). "It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010) (quoting Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006)).
In Colon v. Coughlin, 58 F.3d 865 (2d Cir. 1995), the Second Circuit held that a plaintiff may establish a prison supervisor's personal involvement by showing that the defendant either: (a) "participated directly in the alleged constitutional violation," (b) "failed to remedy" the violation "after being informed of the violation through a report or appeal," (c) "created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom," (d) "was grossly negligent in supervising subordinates who committed the [violation]," or (e) "exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring." Id. at 873 (citing Wright, 21 F.3d at 501); accord Mateo v. Fischer, 682 F. Supp. 2d 423, 429-30 (S.D.N.Y. 2010). It is unclear whether, and to what extent, the five Colon categories have survived the Supreme Court's decision in Iqbal, 556 U.S. at 662. See Inesti v. Hicks, No. 11 Civ. 2596 (PAC) (AJP), 2012 WL 2362626, at *11 (S.D.N.Y. June 22, 2012). In any event, merely pleading that a defendant is a high-ranking prison official plainly is insufficient to establish personal involvement. Bellezza v. Holland, 730 F. Supp. 2d 311, 317 (S.D.N.Y. 2010) (citing Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985)). Similarly, "the receipt of letters or grievances, by itself, does not amount to personal involvement," nor does a pro forma response to a letter or grievance. Mateo, 682 F. Supp. 2d at 430-31(collecting cases); cf. Goris v. Breslin, 402 Fed. App'x 582, 584 (2d Cir. 2010) (no personal involvement where prison official merely received two letters and promptly referred them for investigation and response).
In this case, Rosario's Complaint, liberally construed, alleges that the State Defendants deprived him of his rights of meaningful access to the courts and due process by damaging and losing his property. Rosario also claims that the City Defendants unconstitutionally deprived him of a property interest by returning his property to Southport, confined him to the CPSU without due process, and subjected him to excessive force. Finally, Rosario claims that the Defendants violated his constitutional rights by forcing him to wear non-civilian attire and returning him to Southport custody on April 9, 2010, in contravention of Justice Merchan's order. I will consider each of these claims in turn.
A. Return of Property
Rosario's claims against the State Defendants arise out of his contention that the legal documents and other property sent to him from Southport arrived at his mother's house in a disorderly state, with certain items damaged or missing, due to the "irresponsibility" of the DOCCS administration. (See Stmt. at 2). Additionally, Rosario contends that the City Defendants wrongfully returned the four boxes of his personal property that were sent to Rikers from Southport without providing any notice to him. (Id.). Liberally construed, these aspects of Rosario's Complaint can be read to allege a federal claim that the Defendants' handling of his documents and property violated his constitutional right of access to the courts and his Fourteenth Amendment right not to be deprived of his property without procedural due process.
1. Personal Involvement
Turning first to the City Defendants, Rosario alleges that after Southport sent his personal property to Rikers, Rosario sent letters to the "Dep[uty] Warden of Administration at Rikers" and spoke to an unnamed captain at Rikers regarding the status his property. (Attach. ¶¶ 34-36, 38). Rosario further alleges that the Riker[]s Island Facility, Post Office Trailer" mailed the boxes back to Southport "without [] notification [to him] in violation of [DOC] Rules." (Id. ¶ 37). Rosario's papers do not suggest, however, that he communicated with either Hall or Schriro regarding his property, that they personally directed that the boxes be returned to Southport, or that they were responsible for the handling of property at the Rikers mail facility. Thus, because Rosario failed to establish that the City Defendants were personally involved in any alleged mishandling of his property, any claims against the City Defendants arising out of the return of his property to Southport must be dismissed.
Rosario's allegations with respect to Fischer are similarly deficient. Although Rosario alleges that Fischer's office sent him a letter informing him that he would be released and should contact the Southport Inmate Records Coordinator to obtain his personal property, (id. ¶ 31), that communication appears to be nothing more than a form letter signed by a staff member (see Ex. A). Indeed, Fischer's name appears only on the DOCCS letterhead, which identifies him as the DOCCS Commissioner. (Id.). There is no indication that Fischer had any knowledge of Rosario's attempts to obtain his property and failed to remedy a wrong, or that Fischer took any action with respect to Rosario's property. Any claims against Fischer in connection with the handling of Rosario's property consequently also must be dismissed.
On the other hand, Rosario has alleged sufficient facts to establish the personal involvement of the two remaining state defendants - Kelly and Bartlett - in the return of his personal property. Rosario's claims against these defendants arising out of the handling of his property nevertheless fail to state a claim that entitles him to any relief for the reasons set forth below.
2. Right of Access to the Courts
Prisoners have a constitutional right, grounded in multiple constitutional provisions, to "adequate, effective, and meaningful" access to the courts. Bounds v. Smith, 430 U.S. 817, 822 (1977); see Christopher v. Harbury, 536 U.S. 403, 415 n.12 (2002), Bourdon v. Loughren, 386 F.3d 88, 92-93 (2d Cir. 2004). The right of access to the courts further gives rise to a number of derivative rights, including the right to receive legal mail without interference. Bellezza, 730 F. Supp. 2d at 314. In order to state a claim based on a denial of meaningful access to the courts, a plaintiff must allege "that the defendant's conduct was deliberate and malicious, and that the defendant's actions resulted in an actual injury to the plaintiff." Collins v. Goord, 581 F. Supp. 2d 563, 573 (S.D.N.Y. 2008). To establish an "actual injury," a plaintiff must show that "the defendant's conduct frustrated the plaintiff's efforts to pursue a non-frivolous claim." Id. (citing Lewis v. Casey, 518 U.S 343, 353 (1996)). The condition that the plaintiff's claim was frustrated generally requires more than a mere delay in accessing the court. See Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003). To satisfy the requirement that the underlying claim not be frivolous, a plaintiff must describe the claim well enough for the court to determine whether the claim had an arguable basis in either law or fact. See Christopher, 536 U.S. at 415-16 (requiring pleading of the underlying claim to permit a court to assess its frivolity); Nietzke v. Williams, 490 U.S. 319, 325 (1989) ("a complaint . . . is frivolous where it lacks an arguable basis either in law or in fact").
Applying these principles, Rosario plainly has failed to plead a claim of interference with his right of meaningful access to the courts. Rosario alleges that the "letters, legal documents, etc." inside the boxes that his mother received from Southport "w[ere] all over the place (i.e., letter[]s out of the envelop[e]s)," and that some were "damage[d] or missing." (Attach. ¶ 41). Rosario has failed to allege any facts, however, that plausibly show that he was frustrated or impeded in bringing a legal claim. For example, Rosario has not provided a description of any of the missing or damaged documents or explained how those documents related to his legal claims. Rosario also has failed to identify what his legal claims would have been, much less show that those claims would have been non-frivolous. Without detailing the "arguable basis in law or fact" for any impeded legal claims, Rosario has failed to plead that the State Defendants unconstitutionally interfered with his right of meaningful access to the courts. In short, he has not shown any actual injury.
Moreover, Rosario has failed to allege any facts suggesting that the State Defendants acted deliberately and maliciously in their handling of his documents. Indeed, at Rosario's request, Southport sent the documents to him at Rikers, and after they were returned by Rikers, willingly sent them to his mother in Puerto Rico.
For these reasons, to the extent that Rosario's Complaint contends that the State Defendants unconstitutionally interfered with his ability to access the courts, his claim must be dismissed.
3. Due Process
The Due Process Clause of the Fourteenth Amendment provides that no state shall "deprive any person of life, liberty, or property, without due process of law." U.S. Const. Amend. XIV. In a § 1983 suit brought to enforce procedural due process rights, a court first must determine whether the government deprived the plaintiff of a liberty or property interest. Nnebe v. Daus, 644 F.3d 147, 158 (2d Cir. 2011). If such a deprivation occurred, the court then must consider what process was due for the deprivation and whether it was provided. Id.
Rosario alleges that the State Defendants failed to return some of his legal documents and a television, and that some of the letters and legal documents that were returned were damaged. There is no question that Rosario had a property interest in these items, and that the damage or loss of these items constituted a deprivation within the meaning of the Due Process Clause. Therefore, the critical question is what process the Constitution requires in these circumstances. See id.
To determine what process satisfies the Due Process Clause, "the Supreme Court has distinguished between (a) claims based on established state procedures and (b) claims based on random, unauthorized acts by state employees." Rivera-Powell v. N.Y.C. Bd. of Elections, 470 F.3d 458, 465 (2d Cir. 2006) (quoting Hellenic Am. Neighborhood Action Comm. v. City of N.Y., 101 F.3d 877, 880 (2d Cir. 1996)); see Hudson v. Palmer, 468 U.S. 517, 532 (1984). The availability of post-deprivation relief does not, by itself, satisfy due process when "the deprivation complained of results from the operation of established state procedures." Butler v. Castro, 896 F.2d 698, 700 (2d Cir. 1990). On the other hand, when a property deprivation is the result of an unauthorized negligent or intentional act by a state employee, the Due Process Clause is satisfied when the state provides an adequate post-deprivation remedy. Hudson, 468 U.S. at 533. Moreover, where post-deprivation state-law remedies are adequate, the due process requirement of notice is satisfied as long as the remedies "are established by published, generally available state statutes and case law." City of W. Covina v. Perkins, 525 U.S. 234, 241 (1999).
Rosario does not allege that the loss and destruction of his property was pursuant to an established state procedure. Accordingly, the state need only have provided Rosario with a meaningful post-deprivation procedure to recover for his loss. "New York in fact affords an adequate post-deprivation remedy in the form of, inter alia, a Court of Claims action." Jackson v. Burke, 256 F.3d 93, 96 (2d Cir. 2001). Thus, after Rosario learned that certain of his documents and other property had been lost or damaged, he could have commenced an action in the Court of Claims against the responsible parties. See N.Y. Const., art. VI, § 9 (Court of Claims "shall have jurisdiction to hear and determine claims against the [S]tate"); N.Y. Court of Claims Act § 9(2); N.Y. Comp. Codes R. & Regs. tit. 7, § 1700.3(b)(4). Moreover, the fact that this avenue of relief is available is fully set forth in statutes, regulations, and case law that are public and available. It follows that, because Rosario had a constitutionally adequate post-deprivation remedy of which he should have been aware, he cannot establish that he suffered a due process violation cognizable by this Court. Rosario's claims against the State Defendants arising out of his lost or damaged property therefore must be dismissed for failure to state a claim upon which relief may be granted.
B. Remaining Claims against the City Defendants
Rosario further claims that the City Defendants unconstitutionally deprived him of his liberty interests by confining him in the CPSU for more than one month without any legal process and subjected him to excessive force on three separate occasions. These claims also fail because, among other reasons, Rosario has not demonstrated that Hall and Schriro were personally involved in a violation of his constitutional rights.
1. CPSU Confinement
Rosario alleges that, in contravention of his due process rights, while he awaited a new trial after the reversal of his conviction, he was confined in the CPSU for thirty-four days, pursuant to an "agreement between" DOC and DOCCS, "without a violation of any [DOC] rules." (See Stmt. at 2, 3; Attach. ¶ 6). Rosario complains of the conditions to which he was subject in the CPSU, which, in addition to segregation from the general prison population, included denial of the diet recommended by his medical provider for diabetes, restrictions on his ability to practice his religion, "very limited access" to the law library, being required to wear a prison uniform to court despite a court order directing that he be dressed in civilian clothes, and not being furnished cleaning tools and a personal supply of hygienic products. (Stmt. at 3). The City Defendants contend that Rosario's claim that he was unconstitutionally confined in the CPSU should be dismissed because "the whole of [Rosario's] allegations against Warden Hall and Commissioner Schriro is that they were the intended recipients of [his] letters . . . . Notably, [Rosario] does not allege that Warden Hall or Commissioner Schriro had any involvement in bringing about the subject matter of these letters, namely, his assignment to a SHU at OBCC." (ECF No. 28 (City Defs.' Mem.) at 7).
Assuming that Rosario sent the letters to which he refers, the Complaint still does not allege that Hall or Schriro acknowledged receipt of his letters, or that they sent Rosario a response. Accordingly, the mere fact that Rosario may have sent such letters to prison supervisors is insufficient to establish the City Defendants' personal involvement - even if they received and ignored the letters. See Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997) (DOCS Commissioner had no personal involvement merely because plaintiff wrote him two letters); Mateo, 682 F. Supp. 2d at 430 ("the receipt of letters or grievances, by itself, does not amount to personal involvement"); Watson v. McGinnis, 964 F. Supp. 127, 130 (S.D.N.Y. 1997) ("allegations that an official ignored a prisoner's letter are insufficient to establish liability"); Higgins v. Artuz, No. 94 Civ. 4810 (SS), 1997 WL 466505, at *7 (S.D.N.Y. Aug. 14, 1997) ("an allegation that an official ignored a prisoner's letter of protest and request for an investigation of allegations made therein is insufficient to hold that official liable for the alleged violations").
Nor has Rosario adequately alleged the City Defendants' personal involvement in his assignment to the CPSU on the theory that they created or fostered an unconstitutional practice. Rosario alleges that he automatically was assigned to the CPSU "as per [an] agreement between 'state' and 'local city' facilit[ies] to confine inmates from 'SHU' to 'CPSU,'" even though they had not committed violations of DOC's rules. (Attach. ¶ 2). His conclusory allegation that such an agreement existed is insufficient, however, to establish the personal involvement of Hall or Schriro. Nowhere in his papers does Rosario allege that the City Defendants had knowledge of the agreement or were responsible for the promulgation or implementation of such an agreement with DOCCS. Rosario therefore has not established the City Defendants' personal involvement in his assignment to the CPSU. See Bellezza, 730 F. Supp. 2d at 317 (merely pleading that a defendant is a high-ranking official is insufficient to establish personal involvement); see also Scott v. Fischer, 616 F.3d 100, 110 (2d Cir. 2010) (Section 1983 claim could not be sustained under the third Colon category because plaintiff failed to allege that the "defendants had any knowledge or control" over the allegedly unconstitutional practice); cf. McKenna v. Wright, 386 F.3d 432, 437 (2d Cir. 2004) (sufficient personal involvement shown where defendants were "alleged to have had responsibility for enforcing or allowing the continuation of the challenged policies that resulted in" the constitutional violation).
Among the privations that Rosario allegedly suffered by reason of his placement in the CPSU was lack of access to religious services and reading material. (See Stmt. at 3 ¶ 2). Assuming that this states a claim under the First Amendment or the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc, et seq., it nevertheless fails for the same reason as Rosario's unlawful confinement claim - namely, that there has been no showing that either of the City Defendants did anything to deprive Rosario of his right to exercise his religion.
2. Excessive Force
Rosario additionally contends that DOC officers used excessive force against him on three occasions in violation of the Due Process Clause. (See Stmt. at 2). This claim fails for at least two reasons.
First, Rosario has failed to allege that defendants Hall and Schriro were personally involved in the alleged use of excessive force, or that they allowed it to happen. Rosario has failed, for example, to plead any facts indicating that either defendant was present when force was applied, or was warned of any specific threat to Rosario. Thus, because Rosario has failed to allege personal involvement by the City Defendants in the alleged use of excessive force, these claims against them must be dismissed. See Wright v. Dee, 54 F. Supp. 2d 199, 204 (S.D.N.Y. 1999); Adams v. Galletta, No. 96 Civ. 3750 (JGK), 1999 WL 959368, at *7 (S.D.N.Y. Oct. 19, 1999).
Moreover, even if Rosario had adequately alleged the City Defendants' personal involvement, his excessive force claim still would have to be dismissed for failure to state a claim. The Due Process Clause protects pretrial detainees such as Rosario from uses of force that amount to punishment. See United States v. Walsh, 194 F.3d 37, 47-49 (2d Cir. 1999). To state a due process claim arising out of use of force, a detainee therefore must allege facts satisfying a subjective and an objective condition. Hudson v. McMillian, 503 U.S. 1 (1992). The subjective condition requires that force be used "maliciously and sadistically to cause harm," rather than "in a good-faith effort to maintain or restore discipline." Id. at 7. Under the objective component, an inmate must show that "the alleged wrongdoing was objectively 'harmful enough' to establish a constitutional violation." Id. at 8 (quoting Wilson v. Seiter, 501 U.S. 294, 303 (1991)). The victim need not sustain a physical injury, but the force used must be more than de minimis. Id. at 9-10.
None of the use of force incidents described in Rosario's Complaint satisfy these conditions. On February 9, 2010, an officer twisted Rosario's wrist while he was hurrying to unload and handcuff a busload of prisoners. Rosario may well have experienced some pain due to his rheumatoid arthritis, but he has not alleged that the officer acted with malicious and sadistic intent. Instead, Rosario alleges that the officer twisted his wrist while handcuffing him because he was "upset by the amount of time waiting and inmates pressing him." (Attach. ¶ 7). This allegation concerning the officer's motivation does not rise to the level of intent required to satisfy the subjective prong of an excessive use of force claim. Moreover, even if malicious intent were shown, Rosario has not alleged that the force used was anything beyond de minimis.
Rosario's allegations regarding the incident on March 31, 2010, fail on the objective prong of the inquiry. Indeed, Rosario concedes that the force used was "nothing serious." (Id. ¶ 15). It follows that the incident was not sufficiently serious to constitute "punishment." Likewise, the incident on October 23, 2010, did not cause injury or pain sufficiently serious to rise to the level of punishment. Rosario alleges that on that occasion he was dragged from his cell into a corridor, where he was placed in a wheelchair with his hands cuffed behind his back. (Id. ¶ 43). Although the Complaint contains a general allegation of "pain and suffering," (Compl. at 3), Rosario does not allege that he, in fact, suffered any injury or pain during the October 23 incident. There consequently is no basis on which a finder of fact could plausibly conclude that Rosario was subjected to force rising to the level of punishment during this incident.
In sum, because Rosario has not plausibly alleged that the uses of force constituted punishment inflicted by the City Defendants, his excessive use of force claim must be dismissed.
C. Miscellaneous Claims
In his papers, Rosario presses several other claims. First, Rosario contends that the Defendants forced him to wear prison attire, in violation of Justice Merchan's January 11, 2010 order that he be transferred from DOCCS to DOCS custody in civilian clothing, and that DOCS produce him in civilian clothes for a scheduled courtroom appearance. (See Stmt. at 1; Attach. ¶ 2; Ex. AA). Rosario does not specify the constitutional right he allegedly was deprived of as a result of these actions. It is, of course, ordinarily improper to present a criminal defendant before a jury wearing prison garb. See Estelle v. Williams, 425 U.S. 501, 504 (1976) ("Courts have, with few exceptions, determined that an accused should not be compelled to go to trial in prison or jail clothing because of the possible impairment of the presumption [of innocence] so basic to the adversary system."). Here, it appears that the purpose of the directive was to ensure that Rosario would appear before the jury in street clothes. There is no indication, however, that Rosario ever appeared before a jury attired in a manner that affected his constitutional rights. Moreover, even if he had been required to wear prison garb during a jury trial that led to his conviction, his sole remedy would be to file a habeas petition, because the harm for which he seeks a remedy necessarily would impugn his conviction. See Skinner v. Switzer, 131 S. Ct. 1289, 1298 (2011) (citing Heck v. Humphrey, 512 U.S. 477, 487 (1994)).
Second, Rosario complains that he was returned to State custody in April 2010 despite Justice Merchan's order that Rosario remain in City custody unless otherwise directed by the court. (See Stmt. at 1-2; Attach. ¶ 17). In general, absent some allegation of "an expressed intent to punish" on the part of a defendant, a pretrial detainee's transfer between City and State correctional facilities for a limited period of time does not amount to "punishment" under the Fourteenth Amendment. Robbins v. Doe, 994 F. Supp. 214, 218 (S.D.N.Y. 1998); Butler v. N.Y. State Corr. Dep't., No. 94 Civ. 5054 (AGS), 1996 WL 438128, at *5 (S.D.N.Y. Aug. 2, 1996); Butler v. Westchester County, No. 94 Civ. 8216 (SHS), 2000 WL 335539, at *4 (S.D.N.Y. Mar. 30, 2000 ) ("Due process is not implicated when a pretrial detainee is transferred from one facility to another."). Nor do the applicable laws and regulations create a liberty interest against transfer since New York State regulations do not substantively restrict prison officials' authority to transfer pretrial detainees. See Butler, 1996 WL 438128, at *5-6 (citing N.Y. Comp. Codes R. & Regs., tit. 9, § 7002.2(a); N.Y. Correct. Law §§ 23, 92, 93). However, "[o]therwise valid pretrial detention does assume a punitive character, and thus offends the due process clause, when it is significantly prolonged." United States v. Gallo, 653 F. Supp. 320, 335 (E.D.N.Y. 1986). Here, after Rosario was returned to the City so that he could be retried, he was transferred back to Southport on April 9, 2010, before being returned to City custody on April 28, 2010. The Complaint does not allege any facts that would support an inference that there was a punitive intent behind his transfer to State custody. Absent such an intent, Rosario's mere confinement in a State facility for less than one month plainly does not constitute punishment violative of the Due Process Clause. Compare Butler, 1996 WL 438128, at *5-6 (two-week transfer of pretrial detainee from county jail to State facility did not violate a protected liberty interest), with Robbins, 994 F. Supp. at 218 (complaint adequately alleged a due process violation based on ten-month confinement in State facility without any rationale).
IV. Conclusion
For the foregoing reasons, the Defendants' motions to dismiss (ECF Nos. 17, 26) should be granted, but Rosario should be permitted to submit an amended complaint alleging such additional facts as may be available to enable him to state a legally-sufficient claim against the Defendants.
In addition to the named Defendants, Rosario's Complaint refers to at least two John Doe defendants who apparently have neither been identified nor served. Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, Rosario was required to serve these additional defendants within 120 days after the Complaint was filed. That deadline obviously expired almost one year ago. (See Compl. at 1, 7 (establishing that the Pro Se Office received Rosario's Complaint on June 20, 2011)). The Complaint therefore should also be dismissed as against the John Doe Defendants on timeliness grounds.
V. Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties shall have fourteen days from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), 6(d). Any such objections shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable J. Paul Oetken and to my chambers at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See § 636(b)(1); Rule 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Oetken. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See § 636(b)(1); Rule 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992). Dated: New York, New York
August 28, 2012
/s/_________
FRANK MAAS
United States Magistrate Judge Copies to: Angel Rosario
7 East 116th Street
Apartment 8F
New York, New York 10029 Inna Reznick
Assistant Attorney General
Office of the Attorney General
of the State of New York
120 Broadway
New York, New York 10271 Melanie Mary Speight/ Max Oliver McCann
Assistant Corporation Counsel
New York City Law Department
100 Church Street
New York, New York 10007