Opinion
No. 00 CIV. 4339 (DLC)
September 27, 2002
Attorneys For Plaintiff, pro Se: Dennis Wood, (93-A-9185), Sullivan Correctional Facility, Fallsburg, NY.
Attorneys For the State Defendants: Susan M. Barbour, State of New York, Attorney General's Office, New York, NY.
Attorneys For the County Defendants: Thomas Cawley, Sullivan County Government Center, Monticello, NY.
OPINION AND ORDER
Plaintiff pro se Dennis Wood ("Wood") brought this action pursuant to 42 U.S.C. § 1981, 1983, 1985(3), 1986, and 1988, alleging numerous violations of his civil rights while he was an inmate in the Special Housing Unit ("SHU") of Sullivan Correctional Facility ("Sullivan") in Sullivan, New York. Sullivan County and Sullivan County District Attorney Stephen Lungen (the "County Defendants") moved to dismiss Wood's claims against them pursuant to Rule 12(b)(6), Fed.R.Civ.P., or in the alternative for summary judgment on those claims pursuant to Rule 56, Fed.R.Civ.P. The remaining defendants (the "State Defendants") also moved for summary judgment on Wood's claims against them. For the reasons stated, the State Defendants' motion for summary judgment is granted in part and denied in part and the County Defendants' motion for summary judgment is denied.
Background
Wood filed the original complaint in this action in the Western District of New York on April 17, 2000. The case was transferred to this District on April 26, 2000. Wood filed an amended complaint on July 5, 2000, at which time he was an inmate at Sullivan. Following discovery, on January 3, 2002, the County Defendants submitted their motion. On January 29, Wood submitted his opposition to the County Defendants' motion. On May 24, 2002, the State Defendants submitted their motion for summary judgment. Wood has submitted no opposition to that motion.
In opposition to the motion by the County Defendants, Wood submitted a Rule 56.1 Statement and two memoranda in opposition to the motions to dismiss and for summary judgment. The following submissions, received from the County Defendants, have also been considered as evidence offered by Wood in opposition to these motions: (1) a December 4, 2000 affidavit of fellow inmate Ian Dawes ("Dawes"); (2) a March 7, 2001 affidavit of fellow inmate Andre Porter ("Porter"); and (3) three February 20, 2001 affidavits of Wood.
Wood was released from prison on May 29, 2002.
The majority of the facts relevant to this action involve the State Defendants and are set forth in the State Defendants' Rule 56.1 statement, which Wood has failed to oppose. Generally, the facts recited in a movant's Rule 56.1 statement are deemed admitted when no opposition has been filed. LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 211 (2d Cir. 2001). Furthermore, because Wood's complaint and amended complaint were unverified, they may not serve as affidavits for purposes of summary judgment. See Monahan v. N.Y.C. Dep't of Corr., 214 F.3d 275, 292 (2d Cir. 2000). The record includes affidavits submitted by Wood in opposition to the County Defendants' motion, however, which recite certain facts relevant to the State Defendants' motion. Accordingly, the following facts are as described by the State Defendants in their Rule 56.1 statement unless otherwise noted as disputed by Wood in affidavits he has submitted.
The State did not respond to these affidavits.
Wood's Conduct at Southport
Wood was incarcerated at Southport Correctional Facility ("Southport") in Pine City, New York, from April 29, 1997, to July 28, 1998. On December 25, 1997, Wood was issued a misbehavior report for fighting with two other inmates. During the fight, Wood cut an inmate on the left temple area with a "razor type weapon," and passed that weapon to another inmate. Wood was charged with violating multiple Rules of the New York State Department of Correctional Service ("DOCS")
On December 26, 1997, Superintendent of Southport Michael McGinnis ("McGinnis") temporarily suspended Wood's visiting privileges. On January 21, 1998, McGinnis notified Wood that his visitation privileges were suspended for a one year period from January 3, 1998 to January 3, 1999. Wood appealed McGinnis's decision to Commissioner of DOCS Glenn Goord. After a disciplinary hearing was conducted regarding the misbehavior report issued on December 25, 1997, Wood was found guilty on February 2, 1998, of all the charges contained in the report and received the following penalties: (1) an eighteen-month assignment to SHU, (2) an eighteen-month loss of good time credits, (3) thirty days of restricted diet, and (4) a one-year revocation of visiting privileges. Wood appealed the February 2 disposition to Donald Selsky ("Selsky"), Director of SHU and the Inmate Disciplinary Program. On April 2, 1998, the February 2 disposition was affirmed. On March 11, 1998, Anthony J. Annucci ("Annucci"), Deputy Commissioner and Counsel for DOCS, affirmed by memorandum decision McGinnis's suspension of Wood's visitation privileges for one year.
The Interception of Wood's Mail at Sullivan SHU
Effective November 23, 1999, Wood was transferred from the SHU at Attica Correctional Facility, where he was incarcerated, to the SHU at Sullivan. On December 6, 1999, William Brown ("Brown"), Acting Superintendent of Sullivan, authorized the interception of Wood's mail in connection with an ongoing investigation of gang activity and planned Year 2000 disruptions at Sullivan. On January 2, 2000, Wood received a misbehavior report for violating DOCS Rule 180.11 (correspondence procedures). On January 6, after a disciplinary hearing, he was found guilty of the charges in the report. On February 23, 2002, Robert J. Murphy, Acting Director of SHU and Inmate Discipline, reversed the January 6 decision on the ground that the "hearing officer inappropriately interviewed [a] witness off the record."
On January 7, 2000, Wood was issued another misbehavior report for violating DOCS Rule 180.11. On January 21, 2000, after a disciplinary hearing, he was found guilty of the charges in the report. On March 16, however, Seisky reversed the January 21 decision, stating that the "evidence presented fail[ed] to substantiate [the] charge."
On January 10, 2000, Wood filed a grievance requesting termination of "the censorship of my incoming and outgoing mail." On January 25, Dana Aidala ("Aidala"), Deputy Superintendent of Security at Sullivan, filed a response to Wood's grievance. On February 3, Wood's request was denied. Wood's appeal of the denial was also denied.
Wood's Interaction With Nurse Ruef in November and December 1999
On November 24, 1999, Nurse Sylvia Ruef ("Ruef") conducted her first medical consultation with Wood. During the consultation, Wood was verbally abusive towards Ruef and directed obscenities towards her. During another consultation on November 26, Wood was again verbally abusive and directed obscenities towards Ruef with the result that she terminated the consultation.
On December 6, Ruef's notes indicate that during her rounds in the SHU, Wood was "squat[ting] at [the feed] hatch obviously but not visually masturbating trying verbally to hold nurse at gate." The State Defendants state that SHU policy was that if Wood refused to stop masturbating and keep his hands in view during a medical consultation, either the nurse conducting the consultation or the corrections officer escorting the nurse would end the consultation. In his affidavits, Wood states that there is no such policy and that a misbehavior report, which Wood does not identify, was determined to be falsely written because it stated that such a policy existed.
On December 9, during a medical consultation with Ruef, Wood refused to keep his hands in view. When Wood refused to follow an order to keep his hands in view, Ruef ended the consultation. As Ruef noted in her Ambulatory Health Record of that date, Wood then "began an obscene screaming tirade of abuse and pounding on gate [so] that other inmates wanting [a] sick call could not be heard." Ruef filed a misbehavior report regarding the incident, which was endorsed by Corrections Officer David Boyce ("Boyce"), who states that he witnessed the incident. In his affidavits, Wood states that Ruef provoked him "by directing boisterous and hostile communication" towards him. He also denies that he verbally abused Ruef.
The December 25, 1999 Incident
According to the State Defendants, on the evening of December 25, 1999, Corrections Officer Van Fuller ("Fuller") observed Wood kicking his cell door and yelling "we should get everyone to kick their gate and yell." Fuller filed a misbehavior report, which was endorsed by Boyce. On January 10, 2000, Aidala conducted a disciplinary hearing on the report, during which he heard two witnesses called by Wood. Wood was found guilty of the charges in the report and given a penalty of twenty-five days of restricted diet. On February 23, the January 10 disposition was affirmed.
In his affidavits, Wood sets out his version of the events of December 25, 1999. He states that he filed a grievance on December 15, 1999. According to Wood, on December 25, 1999, Fuller prevented Nurse Beth Duczeminski ("Duczeminski") from conducting medical consultations with any inmates in the SHU and told them that if Wood filed another grievance, none of them would receive medical consultations in the future. According to Wood, this provoked several of the inmates to begin to kick their cell doors and scream for medical services.
In his affidavits, Wood further states that at the disciplinary hearing conducted by Aidala on January 10, 2000, Duczeminski and Boyce presented testimony exculpatory of Wood, but that Aidala chose not to credit that testimony.
Duczeminski states that she did not deny Wood his medication on the evening on December 25, 1999. In his affidavit, Fuller states that he never encouraged Duczeminski or any other medical staff to deny Wood his medication or any other type of medical aid.
The Incidents of January 9, 2000
On January 9, 2000, Corrections Officer Brock ("Brock") prepared a misbehavior report against Wood charging him with, inter alia, failing to comply with frisk and search procedures. On January 10, Gardner conducted a disciplinary hearing on the report in which he heard three of Wood's witnesses. Wood was found guilty and given a penalty of a twenty-eight day restricted diet. Wood appealed and the penalty was affirmed.
Also on January 9, Lieutenant Porter ("Porter") issued a misbehavior report against Wood for repeatedly yelling and screaming at her as she conducted her rounds at SHU. After a disciplinary hearing, Wood was found guilty of the charges in Porter's report and lost the privilege of using his earphones for thirty days. Wood did not appeal the decision.
Wood's Felon Complaints of December 29, 1999 and January 24, 1999
Wood states that on December 29, 1999, he filed a felony complaint with Sullivan County District Attorney Stephen Lungen ("Lungen") against Ruef, Aidala, and Correctional Officer Maxwell alleging conspiracy and falsification of business records. The County Defendants admit that they received the complaint but do not specify whether or how they acted on it. Wood alleges in his affidavit testimony that Lungen did not investigate the complaint due to racial bias, but rather forwarded it to "DOCS inspector generals office and prison officials for Administrative Investigation and Actions." Wood further alleges that DOCS employees then began a campaign to retaliate against him for his filing of the complaint.
Wood states that he filed a second felony complaint with Lungen on January 24, 2000, alleging that Selsky, Aidala, Porter, Fuller, Boyce, and Corrections Officer Brockner were engaged in conspiracy and falsification of business records. Wood alleges that this complaint was also forwarded to DOCS. Wood contends that the County's policy of not investigating complaints made by African-American inmates like Porter, Dawes, and himself, allows Sullivan to continue to abuse its inmates and violate their rights.
Wood's Restricted Diet
Wood was on a restricted diet for periods between January 2000 and May 2000. A restricted diet consists of serving an inmate "cabbage loaf" during meal time, three times a day. The ingredients of a cabbage loaf are whole wheat flour, sugar, shredded carrots with skins, chopped potatoes with skins, whole milk, non-fat milk or powdered milk and yeast. A restricted diet consists of a cycle of four days of loaf diet followed by two days of regular meals.
Dr. Vladislav Sidorowicz ("Sidorowicz") reviewed Wood's medical history before he was placed on the restricted diet and determined that it was medically permissible for Wood to receive the diet. While Wood was receiving the restricted diet, he was visited daily by a medical practitioner to assess whether the diet was adversely affecting his health. Wood's blood pressure, weight, and hydration were also regularly checked in accordance with DOCS policy. In his amended complaint, Wood alleges that he suffered during the diet from "migraine headaches, severe and extreme stomach pains, dizziness, blurry vision and. . significant weight loss." Wood, however, repeatedly refused to allow Sidorowicz to weigh him. Based on the times when Wood allowed himself to be weighed, Sidorowicz determined that Wood's weight loss never reached dangerous levels.
Wood's Behavior During His Time on the Restricted Diet
On January 31, 2000, Wood directed abusive language towards Nurse Julie Burlingame ("Burlingame") during a medical consultation. Wood also threatened to throw feces on her. A misbehavior report was filed against Wood in connection with the incident, although it is not clear from the record who filed the report. In his affidavits, Wood states that he was not verbally abusive towards Ruef and that the misbehavior report was false.
Neither side has provided a copy of the report. Wood alleges in his third amended complaint that the report was filed by Corrections Officer Mohn. Wood states in his affidavit that it was filed by Corrections Officer Healy ("Healy"). The Defendants do not specify who filed the report.
After the report was filed, a restraint order was issued against Wood, which resulted in his being placed in a waist chain and handcuffs when he was out of his cell. A cell shield order was also issued against Wood to protect correctional staff if Wood attempted to throw objects at them or perform unhygienic acts towards them. Burlingame states that she never wrote or endorsed a false misbehavior report against Wood or conspired with any DOCS employee to write a false misbehavior report against Wood, as Wood alleges in his amended complaint. Burlingame further states that she has never been encouraged or coerced by or conspired with any DOCS employee to file false misbehavior reports or deny medical aid to any inmate requiring it.
On February 4, 2000, Corrections Officer Michael Barnofsky ("Barnofsky") issued a misbehavior report against Wood for directing abusive language towards him while he was assisting another SHU inmate and taunted him to "go write your [illegibile] ticket." After a Tier 3 disciplinary hearing, Wood was found guilty of the charges in Barnovsky's report and received a penalty of seven days of the restricted diet. Wood did not appeal this decision.
The Incidents of February 7, 2000
On February 7, 2000, Nurse Dawn Kortright ("Kortright") conducted a medical consultation with Wood. During the consultation, Kortright was in possession of a copy of a grievance filed against her by Wood. Wood asked Kortright how she obtained the copy. She states that she did not respond to Wood's question. She also states that she did not show Boyce, Corrections Officer Randy Armstrong ("Armstrong"), or Sergeant Leaney ("Leaney") a copy of the grievance.
In his affidavits, Wood states that when he asked Kortright how she obtained a copy of his grievance, Armstrong said in a threatening manner that "you will find out." Kortright states that Armstrong made no such statement.
Later on February 7, at 8:22 p.m., Boyce, Armstrong and Leaney escorted Wood, who was in restraints, from his cell to the shower. Wood was weighed at the shower and Kortright was notified that Wood weighed 142 pounds. After Wood entered the shower, he requested his razor and shampoo. Boyce states that he retrieved both and gave them to Wood, and that Wood then requested his "other" shampoo. Boyce states that he explained to Wood that there was no "other" shampoo, and that several minutes later, Wood started yelling for his shampoo and stated that he would not exit the shower after his ten-minute shower period had concluded.
Boyce and Armstrong state that after Wood's ten-minute shower period was finished, Leaney ordered Wood to return his razor. According to the State Defendants, Wood refused to do so. Boyce, Armstrong, and Leaney then removed Wood's personal articles, which were attached to the shower door, to obtain clear visibility into the shower and to ensure that Wood had not hidden his razor in one of the items. Leaney and Armstrong then went to the SHU control room, where Leaney called for a cell extraction team to assist in removing Wood from the shower. Leaney also ordered Armstrong to put on protective clothing to assist the cell extraction team. Meanwhile, Boyce stood outside the shower and attempted to persuade Wood to return the razor.
Shortly thereafter, Leaney, Armstrong, and the cell extraction team appeared in front of the shower. Leaney again ordered Wood to return his razor. At that time, Wood complied. Wood's restraints were then applied and he was returned to his cell.
Wood states that when he was escorted to the shower by Boyce, Armstrong, and Leaney, Boyce threatened him by saying that "if you keep filing those grievances you won't get anything." Wood further states that when he asked for his shampoo, Boyce gave him another inmate's shampoo in a deliberate attempt to provoke him. When Wood attempted to inform Leaney of Boyce's conduct, Leaney responded "I don't want to hear it" and, according to Wood, "took my personal soap and threw it in the garbage and then took my undershorts and face rag and threw them on the filthy floor." Wood states that during the entire episode, he repeatedly informed the officers that he was not refusing to comply with the instructions given by them.
Boyce prepared a misbehavior report involving Wood's refusal to return the razor. Boyce states that he has never written or endorsed a false misbehavior report against Wood, as alleged in Wood's amended complaint.
Wood states in his affidavit that he filed a grievance on January 27, 2000, which was returned to him as frivolous. Wood states that his filing of the grievance motivated Boyce, Armstrong, and Leaney to mistreat him at the shower and to file a false misbehavior report against him.
Later on February 7, after Wood returned to his cell, Leaney called Ruef to Wood's cell because Wood complained that the handcuffs were causing him pain to his right wrist. Ruef examined Wood's right wrist through the feed hatch and noted that the outer portion of the wrist was slightly reddened. There were no abrasions or swelling on the wrist, however, and Wood was able to open and close his fingers. Leaney, Boyce, and Armstrong state that neither they nor Lieutenant Porter ("Porter"), who was the lieutenant on duty at the time, prevented Ruef from conducting a medical consultation with Wood. Ruef states that she has never falsified Wood's medical records or shown them to a DOCS employee who was not authorized to see them.
At approximately 9:35 p.m. on February 7, 2000, Nurse Rose Larkin ("Larkin") issued a misbehavior report against Wood for directing abusive language at her while she was dispensing medication to SHU inmates. After a hearing, Wood was found guilty of the charge in Larkin's report. Wood did not appeal this disposition.
On February 11, 2000, Sidorowicz examined Wood and found that Wood's heart rate was normal, his lungs were clear of fluids, and his skin was clear and moist, indicating that Wood was not suffering from dehydration. Sidorowicz also calculated Wood's body mass index number and determined that Wood was within the normal/excellent health range for a male of Wood's weight, height, and age. Wood weighed approximately 144 pounds at the time, was 5'11" in height, and was twenty-three years old.
On March 17, 2000, Nurse Carol Huebsch conducted a medical consultation with Wood. Corrections Officer Smith ("Smith") states that during the consultation, he did not encourage Huebsch to withhold medical treatment from Wood, as Wood alleges in his amended complaint. Smith further states that he has never encouraged any medical practitioners to falsify medical reports or to withhold medical treatment from Wood, as Wood alleges in his amended complaint.
Wood's 2000 Felony Complaints
Wood states that he sent two additional felony complaints to Lungen on February 18, 2000, and March 7, 2000, the first alleging that Healy and Fuller were engaging in conspiracy and the falsification of business records, and the second alleging that Porter, Leaney, Armstrong, Boyce, and Ruef were engaging in the same conduct. The County Defendants admit that they received these complaints and do not deny that they did not investigate them.
Wood's Conduct Overall
Wood's disciplinary record shows that between 1994 and 2000, approximately forty misbehavior reports were filed against him, with approximately five to ten such reports filed each year. Furthermore, an unspecified number of misbehavior reports were dismissed against Wood.
Standard
Summary judgment may not be granted unless the submissions of the parties, taken together, "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. The substantive law governing the case will identify those issues that are material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1987). The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination the Court must view all facts in the light most favorable to the nonmoving party. Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 465-66 (2d Cir.), cert. denied, 122 S.Ct. 460 (2001). When the moving party has asserted facts showing that the nonmovant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on the "mere allegations or denials" of his pleadings. Fed.R.Civ.P. 56(e); see also Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). In deciding whether to grant summary judgment, this Court must, therefore, determine (1) whether a genuine factual dispute exists based on the evidence in the record, and (2) whether the facts in dispute are material based on the substantive law at issue.
Where, as here, the nonmoving pro se party has failed to submit papers in opposition to at least portions of a defendants' motion, summary judgment should not be "granted automatically." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Rather, summary judgment may be granted as long as the plaintiff has received notice that failure to file an opposition may result in dismissal of his case and the Court is satisfied that the undisputed facts "show that the moving party is entitled to a judgment as a matter of law." Champion, 76 F.3d at 486 (quoting Rule 56(c), Fed.R.Civ.P.). Included in the defendants' papers was a "Notice to Pro Se Litigant Opposing Motion for Summary Judgment," informing Wood, among other things, that his failure to respond to the motion could result in the dismissal of his complaint. This Court provided Wood with similar notice on February 5, 2001.
Discussion
Wood's amended complaint alleges numerous violations of his civil rights during his incarceration at Sullivan SHU. His allegations fall into four categories: deliberate indifference to his medical needs, conspiracy, retaliation against him for engaging in various constitutionally protected conduct, and the denial of his equal protection and due process rights.
I. Deliberate Indifference to Medical Needs
Wood alleges that Sidorowicz, Ruef, Burlingame, Kortright, Doyle, Duczeminski, and Huebsch denied him adequate medical care in violation of the Eighth Amendment's prohibition of cruel and unusual punishment by failing to monitor his weight and treat his various complaints while he was on the restricted diet. To establish an Eighth Amendment claim for denial of adequate medical care, a plaintiff must prove a deliberate indifference to serious medical needs. See Farmer v. Brennan, 511 U.S. 825, 834 (1994); Estelle v. Gamble, 429 U.S. 97, 105 (1976). Deliberate indifference to medical needs requires that a plaintiff satisfy an objective and a subjective component. Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). To satisfy the objective prong, the alleged deprivation must be a "sufficiently serious" condition, one that "may produce death, degeneration, or extreme pain." Morales v. Mackalm, et al., 278 F.3d 126, 132 (2d Cir. 2002) (citation omitted). The subjective prong requires the plaintiff to demonstrate that the official acted with a sufficiently culpable state of mind, which must be "the equivalent of criminal recklessness," namely, when the official "knows of and disregards an excessive risk to inmate health or safety." Hathaway, 99 F.3d at 553 (citation omitted). Mere negligence or medical malpractice does not constitute deliberate indifference, i.d., nor do mere differences of opinion between the prisoner and the defendants concerning the proper course of treatment. Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998). Rather, officials must "intentionally deny or delay access to medical care or intentionally interfer[e] with the treatment once prescribed." Estelle, 429 U.S. at 104-05.
Having failed to oppose the State Defendants' motion for summary judgment on this claim, Wood has failed to offer any evidence to raise a question of fact regarding either prong of the Eighth Amendment analysis. The undisputed facts show that Wood's physical condition was not sufficiently serious. For the duration of the restricted diet, his body mass index number never departed from the normal/excellent range. They also show that Wood was not at any time dehydrated during the restricted diet. Finally, Wood received a blood test which returned normal results. As for the complaints of headaches, stomach pains, dizziness, and blurred vision contained in his pleadings, Wood has presented no evidence that he experienced these symptoms or that the symptoms were brought to the attention of prison officials and were left untreated. II. Conspiracy
Wood states in his affidavits that on December 25, 1999, Fuller prevented Duckzeminski from conducting medical consultations with any inmates in Sullivan's SHU. In his submissions, however, Wood does not explain how this single incident constituted deliberate indifference to his serious medical needs.
Wood makes numerous allegations of conspiracy against the State Defendants. These allegations can be grouped into three categories: conspiracy to falsify Wood's medical records, conspiracy to file false misbehavior reports, and conspiracy to provide false testimony at Wood's disciplinary hearings. With respect to the first category, Wood alleges that Doyle, Burlingame, Huebsch, Duczeminski, and Kortright conspired with the "security staff" to falsify his medical records, that Leaney "influenced" Ruef to falsify his medical records, that Fuller encouraged Duczeminski not to treat him, and that Walsh "indulged [in a] smoke screen conspiracy in order to carpet [sic] and conceal medical staff." With respect to the second category, Wood alleges that Healy and Burlingame conspired to file a false misbehavior report against him, and that Porter "urged and encouraged" Fuller and Boyce also to file a false misbehavior report against him. Finally, with respect to the third category, Wood alleges that Porter provided false testimony at a disciplinary hearing with the intention of conspiring with Aidala, who was the hearing officer, to deprive Wood of his due process rights, and that Selsky "overtly participate [d] in [a] conspiracy" regarding Wood's disciplinary hearings.
Title 42 U.S.C. § 1985 (3) prohibits, in pertinent part, conspiracies undertaken "for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges or immunities under the law."
The four elements of a § 1985(3) claim are: (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of equal protection of the laws, or of equal privileges and immunities under the laws; (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right of a citizen of the United States. Furthermore, the conspiracy must also be motivated by some racial or perhaps otherwise class-based, invidious discriminatory animus behind the conspirators' action.Mian v. Donaldson, Lufkin Jenrette Sec. Corp., 7 F.3d 1085, 1087-88 (2d Cir. 1993) (citations omitted). See Brown v. City of Oneonta, 221 F.3d 329, 341 (2d Cir. 1999)
With the exception of certain misbehavior reports discussed below, Wood has presented no evidence in support of these allegations. Specifically, he has presented no evidence that the defendants conspired to falsify his medical records and the defendants have stated that they did not. Wood has also failed to present any evidence in support of the allegation that Porter presented false testimony at his disciplinary hearings or that Selsky "overtly participated" in violating his rights in the disciplinary process. Rather, Wood's affidavits state that Duczeminski and Boyce presented testimony exculpatory of Wood, but that Aidala chose not to rely on that testimony.
With respect to his allegations of conspiracy to file false misbehavior reports, Wood has offered evidence of the filing of five such reports. He has failed, however, to present any evidence that those reports were filed out of racial animus. In his affidavits, Wood asserts that over 90% of DOCS' inmates are African Americans and Latinos, while over 90% of the prison staff are white. Wood uses these statistics to ascribe a motive to the County Defendants for their failure to investigate the complaints that he and other inmates submitted to them. Standing alone, however, these statistics of racial composition are insufficient to create an issue of fact that the individual State Defendants were motivated by race to conspire against Wood in filing false misbehavior reports. While Wood may not be in a position as an incarcerated pro se litigant to present more compelling evidence of racial animus on the part of the County Defendants, he is in a better position to present evidence of racial animus with respect to individuals with whom he has dealt directly and repeatedly. Wood has failed to identify the race of the defendants he has charged with conspiracy, nor has he described any comments or specific actions from which could be inferred class-based animus. To the contrary, he has presented evidence and arguments of a retaliatory motive for the filing of these allegedly false reports, a retaliatory motive that is entirely independent of race or other class-based animus. Consequently, the State Defendants are entitled to summary judgment on the conspiracy claims.
III. Wood's Allegations of Retaliation
Wood alleges that the State Defendants retaliated against him because he filed grievances against them, because he is an active litigant, and because they filed misbehavior reports against him which were subsequently dismissed. Wood further alleges that defendants' retaliation took the form of the filing of false misbehavior reports, the denial of his right to privacy and confidentiality, and the censoring of his mail.
Because of the "near inevitability of decisions and actions by prison officials to which prisoners will take exception and the ease with which claims of retaliation may be fabricated," Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995), "courts must approach prisoner claims of retaliation with skepticism and particular care." Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001) (citation omitted). To establish a claim for retaliation, a plaintiff must demonstrate that he 1) engaged in constitutionally protected conduct and that 2) such conduct was a "substantial or motivating factor" behind the prison officials' allegedly retaliatory acts. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (citations omitted). In determining whether a causal connection exists between the plaintiff's protected activity and the prison official's actions, a court considers several factors, including the outcome of any hearing concerning the allegedly retaliatory charges, the inmate's prior disciplinary record, statements made by a defendant concerning his motivation, and the temporal proximity between the protected activity and the defendant's adverse action. See Colon, 58 F.3d at 872-73.
The filing of grievances, participation in litigation, and the appeal of certain misbehavior reports all involve constitutionally protected conduct. See Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996) (holding that an inmate's pursuit of litigation and filing of grievances is constitutionally protected conduct). There is temporal proximity between Wood's protected conduct and the defendants' filing of misbehavior reports and censoring of his mail. While Wood's record of repeated disruptive misbehavior may ultimately prove fatal to his claim of retaliation, including the fact that the great majority of misbehavior reports against Wood were sustained on appeal or never appealed by Wood, Wood has offered sufficient evidence to raise-questions of fact regrading the honesty of five misbehavior reports, to wit, the report filed December 6 and subsequently held to be false, Ruef's report dated December 9, 1999, Fuller's report dated December 25, 1999, the report filed January 31, 2000, and Boyce's report dated February 7, 2000.
With respect to Wood's allegations in his third amended complaint that defendants denied him his right of privacy and confidentiality in retaliation for his protected conduct, the State Defendants have denied that they improperly divulged his medical information and Wood has presented no evidence that any of the defendants divulged his medical information to individuals not authorized to see it. Wood also complains in this amended pleading that, "during each medical communication with the medical staff," the correctional officers stood too close to his cell-door during the conduct of medical consultations with him, and did so in order to overhear his confidential medical information or otherwise intimidate the medical staff into denying him medical attention. The State Defendants have denied engaging in this conduct. Having failed to offer any evidence to dispute the facts asserted by the State Defendants, Wood's claim cannot survive summary judgment.
Finally, Wood claims in his amended complaint that Walsh, Healy, and Aidala authorized the censorship of his mail without notifying him of the basis for that censorship in retaliation for his protected conduct. The undisputed facts show, however, that the State Defendants' decision to screen Wood's mail was the result of a legitimate facility interest in security and was not done for retaliatory purposes. Wood has not opposed entry of summary judgment on this claim.
IV. Wood's Due Process and Equal Protection Claims
Wood alleges that Selsky, Walsh, Aidala, Brown, Healey, and Gardner violated his due process rights whenever they failed to credit his testimony during disciplinary or grievance hearings and destroyed evidence that would corroborate his testimony. He contends that they acted as they did out of discriminatory animus because he is African-American. Wood further alleges that Walsh "encouraged his designated investigators" to discredit his complaints in violation of his due process rights and failed to train his investigators to detect racial bias in the disciplinary process. Finally, Wood argues that the County Defendants ignored his felony complaints out of discriminatory animus.
With respect to Wood's due process and equal protection claims against the State Defendants, Wood has failed to present any evidence regarding the conduct of disciplinary or grievance proceedings except the following: Aidala's decision not to credit the testimony of Duczeminski and Boyce at the January 10, 2000 disciplinary hearing and the SHU staff's failure to acknowledge receipt of a January 27, 2000 complaint that it returned to him as frivolous. With respect to Aidala's conduct of the January 10 hearing, Wood does not specify how Aidala's reliance on Fuller's testimony rather than Duczeminski's and Boyce's rises to a constitutional violation. As to the SHU staff's handling of the January 27 complaint, the State Defendants have not addressed whether the alleged conduct, if true, implicates rights protected under either the Equal Protection or Due Process Clauses. If this litigation proceeds, the parties will be given an opportunity to address this issue further.
With respect to Wood's equal protection claim against the County Defendants, the County Defendants argue that Wood has not asserted specific facts to support his claim of discriminatory animus. They further argue that because none of Wood's felony complaints indicated his race, Lungen could not have refused to investigate them out of discriminatory animus.
The County Defendants do not assert any legal defense.
Yet Wood has presented evidence that Lungen failed to investigate the felony complaints of at least three African-American prisoners, namely, Dawes, Porter, and Wood himself. Wood has also asserted that because of the racial make-up of the prison population, Lungen could reasonably have expected that the complaints were filed by African-American inmates. Although the evidence of discriminatory animus is slim, it is sufficient to raise an issue of fact, especially where, as here, the plaintiff is proceeding pro se.
V. Qualified Immunity
The State Defendants assert that they are immune from liability under the doctrine of qualified immunity. "Qualified immunity shields public officials from liability for civil damages if their actions were objectively reasonable, as evaluated in the context of legal rules that were clearly established at the time." Poe v. Leonard, 282 F.3d 123, 132 (2d Cir. 2002) (citation omitted). The first step in a qualified immunity analysis is to "determine whether the plaintiff ha[s] alleged a violation of a constitutional right." African Trade Info. Ctr., Inc. v. Abromaitis, 294 F.3d 355, 359 (2d Cir. 2002); see also Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002). The second step is to "determine whether the right was clearly established at the time of the alleged violation." African Trade, 294 F.3d at 359. Thus "a qualified immunity defense is established when. . . the defendant's action did not violate clearly established law." Poe, 282 F.3d at 133 (citation omitted). Because it was clearly established at the time of the alleged conduct that the filing of false misbehavior reports violates an inmate's constitutional rights, the defense of qualified immunity is not available to any defendant who knowingly participated in the preparation of such reports.
VI. Supervisory Immunity
Defendants argue that Selsky, Annucci, McGinnis, Walsh, Aidala, Brown, Healy, Porter, and Gardner (the "Supervisory Defendants") are immune from liability under the Eleventh Amendment. To the extent that Wood is suing the Supervisory Defendants in their official capacities, his claims are barred by the Eleventh Amendment. See K A Radiologic Tech. Servs., Inc. v. Commissioner of the Dep't of Health, 189 F.3d 273, 278 (2d Cir. 1999). To the extent that Wood is suing them in their individual capacities, a showing of the "personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Johnson v. Newburgh Enlarged School District, 239 F.3d 246, 254 (2d Cir. 2001) (citation omitted). The requisite personal involvement of supervisors exists if, "for example, the defendant (1) created or permitted the continuance of a policy that caused the alleged deprivation, (2) failed to remedy the alleged deprivation after learning of it, or (3) was grossly negligent in managing subordinates who caused the alleged deprivation." K A Radiologic Tech., 189 F.3d at 278.
At this stage in the litigation, Wood has failed to specify which of the Supervisory Defendants was personally involved in the filing of the misbehavior reports dated December 6, December 9, and December 25, 1999, and January 31 and February 7, 2000. Should Wood participate in the further conduct of this litigation, the parties will be given the opportunity to litigate further which, if any, of the Supervisory Defendants may be brought to trial.
By Order dated August 22, 2002, a motion by Wood to compel discovery primarily of defendants' personnel records was denied without prejudice to its renewal if it appeared that "any material requested by Wood might, if produced, prevent a decision in defendants' favor." None of the requested material would have changed the rulings in this Opinion. Should Wood continue in this litigation, he shall be given an opportunity to explain what additional discovery is needed on the remaining claims.
Conclusion
For the reasons stated, the State Defendants' motion for summary judgment is granted with respect to Wood's claims of deliberate indifference to medical needs and conspiracy. The State Defendants' motion for summary judgment with respect to Wood's claim that the State Defendants retaliated against him is granted in part. It is denied with respect to the retaliation claims based on the filing of the five misbehavior reports dated December 6, December 9, and December 25, 1999, and January 31 and February 7, 2000. The State Defendants' motion for summary judgment on Wood's claims arising under the Due Process and Equal Protection clauses is granted, except to the extent the claims are based on the refusal to acknowledge receipt of his January 27, 2000 grievance. The County Defendants' motion for summary judgment is denied. A Scheduling Order for the further conduct of discovery and motion practice on Wood's remaining claims will be issued.SO ORDERED: