Case No. 99-CV-5838.
May 13, 2004
KEVIN ANDERSON, Pro Se New York, NY, for the Plaintiff.
LAUREN SEIDES CHARTAN, ESQ., Deputy County Attorney, Office of the Nassau County Attorney, Mineola, NY, for the Respondent.
MEMORANDUM AND ORDER
Pro se incarcerated plaintiff Kevin Anderson filed this action on September 20, 1999, raising two claims pursuant to 42 U.S.C. § 1983: (1) that for several Sundays in August of 1999 he was prohibited from attending Sunday services, and (2) that on one occasion in April of 1999 a corrections officer called Anderson a "retart," cursed him, exposed his penis to Anderson, and made lewd suggestions. Complaint at 4(a). Anderson named as defendants Nassau County, the Nassau County Correctional Center, and various prison officials involved in the two incidents (collectively, "defendants"); defendants have moved for summary judgment. Anderson has not opposed the motion. For the reasons set forth below, the Court grants summary judgment to defendants and dismisses the complaint.
Defendants served Anderson with the Notice to Pro Se Litigants required by Local Rule 56.2.
Although not raised as an issue by the defendants, it appears that Anderson may not have exhausted his administrative remedies by complying with New York's three-step grievance and appeal procedure set forth in N.Y. Comp. Codes R. Regs. § 701.7. There is some doubt about the matter, however, because Anderson's complaint simultaneously alleges that he "was told there was no grievance [procedure] and [he] feared retaliation from within" but that he nonetheless "complain[ed] to prison authorities" and "ha[d] yet to receive a response." Compl. at 4. Because Anderson's two claims so clearly lack merit, however, the Court will assume arguendo that Anderson has satisfied all exhaustion requirements.
1. Religious Services Claim
Anderson's complaint fails to mention that the reason he was prohibited from attending Sunday services in August of 1999 was because he was in lock-down for inciting other inmates to riot, engaging in disorderly conduct, threatening prison officials, and refusing a direct order. See Defendants' Statement of Material Facts Pursuant to Local Rule 56.1, Exhibits D-F (incident reports). Anderson was permitted to again attend services after it was determined that his attendance no longer posed a threat to other inmates or to prison employees. Id. at ¶ 9. Because the undisputed facts establish that Anderson's First Amendment rights were curtailed only so far as necessary to serve the prison's penological interests, the Court grants summary judgment for defendants on this claim. See Matiyn v. Henderson, 841 F.2d 31, 37 (2d Cir. 1988) ("we agree with the district judge's . . . holding that [plaintiff] was prevented from attending communal services for reasons related to legitimate penological objectives, and that his claim was therefore without merit"); Aliym v. Miles, 679 F.Supp. 1 (W.D.N.Y. 1988) (granting summary judgment to defendant prison officials: "the restriction on plaintiff's attendance of congregate worship services was [justified because] SHU [Special Housing Unit] inmates are considered to be a threat to other inmates, staff, and the security of the facility").
2. Sexual Abuse Claim
In Boddie v. Schnieder, 105 F.3d 857 (2d Cir. 1997), the plaintiff alleged that on one occasion a female prison guard had made a pass at him, squeezed his hand, and touched his penis, and that on another occasion a different female officer had twice rubbed her body against his in a sexual way. The district court dismissed Boddie's § 1983 claim pursuant to Fed.R.Civ.P. 12(b)(6). On appeal, the Second Circuit acknowledged that "sexual abuse of an inmate by a corrections officer may reach constitutional dimensions and give rise to an Eighth Amendment claim under Section 1983[,]" but only if the abuse is "severe enough to be `objectively, sufficiently serious.'" Id. at 859, 861 (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)). In the Second Circuit's view, Boddie's sexual abuse claims, even when considered cumulatively, were not sufficiently serious:
[W]e agree with the district court that Boddie nevertheless failed to state an Eighth Amendment claim. He asserts a small number of incidents in which he allegedly was verbally harassed, touched, and pressed against without his consent. No single incident that he described was severe enough to be `objectively, sufficiently serious.' Nor were the incidents cumulatively egregious in the harm they inflicted. The isolated episodes of harassment and touching alleged by Boddie are despicable and, if true, they may potentially be the basis of state tort actions. But they do not involve a harm of federal constitutional proportions as defined by the Supreme Court.Id. at 861. The court therefore affirmed the dismissal of the plaintiff's complaint.
Following Boddie, other courts within this circuit have dismissed prisoners' sexual abuse claims in circumstances comparable to or arguably worse than Anderson's. In Smith v. Menifee, 2001 WL 1035136 (S.D.N.Y. September 7, 2001), for example, a correctional officer "entered plaintiff's protective custody unit, grabbed plaintiff's buttocks, and used obscene language in front of other inmates"; the district court dismissed the complaint, noting that plaintiff alleged "only one isolated incident" of harassment which, though "reprehensible," was not "objectively, sufficiently serious" to state a § 1983 claim. Id. at *4. Another example is Young v. Coughlin, 1998 WL 32518 (S.D.N.Y. January 29, 1998), in which the plaintiff alleged that a "preacher at a prison chapel placed [plaintiff's] hand on the preacher's buttocks," that a fellow inmate "attempt[ed] to place his penis on [plaintiff's] Young's leg[,]" and that a "corrections officer `hunched [the officer's] pelvis out as if he wanted to play with his penis.'" Id. at *7. Because the plaintiff had "not allege[d] harm of federal constitutional magnitude[,]" the court granted summary judgment to the defendants. Id. at 8.
Based on the teachings of Boddie, a review of similar case law, and an assessment of the undisputed facts, the Court concludes that Anderson's single episode of harassment by Corrections Officer Murry does not constitute objectively, sufficiently serious abuse as to state a claim under § 1983. While it may be that a single incident of sexual abuse could be sufficiently serious to constitute a constitutional violation, see Boddie, 105 F.3d at 861, in the Court's view Correction Officer Murry's behavior, odious as it is, does not rise to that level. Accordingly, the Court grants summary judgment in defendants' favor as to Anderson's sexual harassment claim.
The complaint is dismissed.